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Features of Indian Constitution

Indian Constitution
 Sovereign, Socialist, Secular, Democratic Republic
 Supreme law of the Nation
 Written & 2nd lengthiest after Serbia
 Consists of 12 schedules, 25 parts & 448 Articles
12 Schedules of Indian Constitution

Schedule Description

1 List of States & Union Territories

2 Salaries

3 Oaths and affirmations

4 Allocate seats for each state of India in Rajya Sabha

5 Administration and control of scheduled areas and tribes

6 Provisions for administration of Tribal Area in Assam, Meghalaya, Tripura, Mizoram

Gives allocation of powers and functions between Union & States.

 Union List (For central Govt) 100 Subjects.

7  States List (Powers of State Govt) 61 subjects
  Concurrent List (Both Union & States) 52 subjects

8 List of 22 languages of India recognized by Constitution

Reservation – Contains acts & orders related to land tenure, land tax, railways, industries.{Right
9 of property not a fundamental right now}

10 Anti-Deflection law

11 By 73rd amendment; Contains provisions of Panchayati Raj

12 By 74th amendment; Contains provisions of Municipal Corporation.

Framed By constituent assembly under chairmanship of Dr. Rajendra Prasad ; Drafted by

Chief of Drafting Committee Dr. Ambedkar in 2 years, 11 months & 18 days
Formally adopted on 26 Nov. 1949 & came into force on 26th Jan 1950 (Because on 26th Jan
1930, Declaration of Poorna swaraj was made by JLN)

Provisions in Indian constitution taken from foreign states

Country Provision

Canada Quasi Federal with strong center compared to statesGovernors

UK Parliamentary form of GovernmentRule of LawProcedure established by law

USA Fundamental RightsJudicial ReviewIndependent JudiciaryFederal structure

USSR Fundamental Duties

Ireland Directive Principles of State Policy

Germany – Weimar Emergency Provisions

France Ideals of Liberty, Equality & Fraternity

Indian Constitution: Quasi Federal (Federal But Unitary)

 Rajya Sabha can make laws with respect to laws enumerated in state list in national
interest by passing a resolution supported by 2/3 of the members present & voting
 Single citizenship for all (No dual citizenship with respect to central & state government)
 Common & Centralized Election commission for state gov. as well as parliament
 Only parliament has the power to amend constitution (States have their role only in
matters affecting federal interest → In this case, Bill need to be ratified by legislatures of
not less than half of states by simple majority – States special majority only in formation
of new legislative council)
 Common Comptroller & Auditor General of India for union & state government
 Single, unified & hierarchical judiciary with same laws throughout the nation
 Central Rule over states in period of Emergencies
 Constitution does not protect territorial integrity of states → Parliament unilaterally can
increase or alter boundaries or name of states.
 Common constitution throughout the nation
Features of Federal Constitution (America)
 Dual Polity + Dual Government with clear separation of powers + No overruling by state
or central government + Dual citizenship + Dual constitution
 Powers originating from constitution with supremacy of the constitution
 Independent & impartial judiciary with powers w.r.t constitution of state or of central
government
 Written form + Rigid → requires joint act of central & state government to amend the
constitution

The Preamble
 A philosophy on which whole constitutional structure is based which cannot be enforced
in court of law
 Not any source of any government power >> Do not place any limitations on organs of
constitution (Executive, Judiciary & Legislature)
 Limited applications & can be resorted only when there is an ambiguity in provisions of
the constitution
 Proclaims India to be Sovereign, Socialist, Secular, and Democratic Republic

Democratic → Justice + Liberty + Equality + Fraternity

Berubari Case (1960) → SC Verdict: Preamble is not part of constitution hence cannot be
amended
Keshavnanda Bharti Case (1973) → SC Verdict: Overruled earlier decision & stated
preamble is part of constitution & can be amended provided “Basic structure of constitution
as demarcated in preamble is not destroyed”

Union & its Territories – Formation of States in India

Article 1 of Indian Constitution defines names & territories of nation >>
Describes India as union of states (Not federation of states)
Article 2: Admission & establishment of new states >> French settlement of
Pondicherry & Portuguese settlement of Goa, Daman & Sikkim
Article 3: Formation of new states & alteration of areas, boundaries & names
of existing states (Power vested only in parliament)
 A bill regarding formation of new states / alteration of name or area of

existing states is introduced in parliament only on the recommendation of

president who shall refer it to state but is not bound to act upon states
views.
 If the said bill is passed by both the houses by simple majority then after
presidential assents it comes into action.
 In case of union territories, it is not even necessary for president to obtain
views of legislatures of union territories.
Formation of States in India
 On 26th Jan 1950, Constitution divided Indian states into four parts

But before this division, Throughout India a constant demand to reorganize

the states on linguistic basis arose, Hence constituent assembly formed
Linguistic Province commission (LPC) to look into the matter (Headed by
S.K. Dhar) – June, 1948

LPC headed by Dhar supported reorganization on the basis of administrative

convenience rather than on Linguistic basis
In Dec, 1948 a second LPC was formed to again verify the report given by
Dhar & look into the matter again >>> Members (J.L. Nehru, Vallabh Bhai
Patel & Pattabhi sitaramayya) >>> Gave the same report as given by Dhar,
hence on 26th Jan, 1950 division took place as mentioned above.

Oct, 1953 >> Formation of 1st linguistic State, ANDHRA PRADESH

Cause: Death of Potti Sriramulu due to 56 days hunger strike for separation
of Telegu speaking areas from Madras (Tamil speaking people)

States Reorganization Commission (SRC): Dec, 1953

 Commission Members : Fazal Ali ( Chairman), H.N Kunzru, K.M
Pannakar
 Abolition of 4 fold classification of states
 Recommended creation of 16 states & 3 centrally administered territories

States Reorganization Act: 1956 (7th Amendment): Formation of 14 states

and 6 union territories took place

Formation of States till 2014

An opening was through to make more states in India as per the needs of the
situation, but only after the decision of parliament. This led to formation of a
number of new states in India as shown below:
 Bombay reorganization act, 1960 : Formation of Gujrat
 State of Nagaland act, 1962 : Nagaland as separated state from Assam
 Punjab reorganization act, 1966 : Formation of Haryana
 New state of Himachal Pradesh act , 1970
 North eastern reorganization act, 1971 : Formation of Manipur, Tripura,
Meghalaya, Mizoram & Union territories of Arunachal Pradesh &
Mizoram
 New state of Sikkim act , 1975
 State of Arunachal Pradesh Act, State of Mizoram act 1986 : Formation of
States of Mizoram & Ar. Pradesh
 State of Goa Act, 1987
 P reorganization act, 2000 : Formation of Chhattisgarh
 P reorganization act, 2000 : Formation of Uttarakhand
 Bihar reorganization act, 2000 : Formation of Jharkhand
 Andhra Pradesh reorganization act, 2014 : Formation of Telangana

Pending demands for new states in India

Formation of Telangana created a flame among other separatist movement
for creation of new states. Given below are some of the pending demands for
new states:
 Citizenship in India & Indian citizenship acts
Fundamental Rights provided in Indian constitution are available to citizens of India only;
some of the fundamental rights which are not enjoyed by a non-citizen of India are:
 Right to be discriminated on the basis of religion, race, sex, cast or birth of place
 Equal opportunities in public employment
 Right of six democratic freedoms (Article 19) + Cultural & educational rights

Only citizens of India have the right:

 To hold civil office
 Right to vote
 Right to be judges of courts
Indian citizenship act, 1955
 Indian constitution provides single citizenship to all irrespective of the states a person
belongs to
 Constitution simply describes classes of people deemed to be citizens of India as on 26th
Jan 1950 & leaves entire law of citizenship to be regulated by parliamentary laws
Parliament enacted Indian citizenship act, 1955 for acquisition & loss of Indian citizenship.
Since its commencement it has been amended four times:
 The Citizenship (Amendment) Act , 1986.
 The Citizenship ( Amendment) Act, 1992.
 The Citizenship (Amendment) Act , 2003.
 The Citizenship (Amendment) Act, 2005.

According to Indian citizenship act, 1955, Indian citizenship was extended to citizens of
commonwealth countries but this law was repealed by amendment in 2003

Acquisition of Indian Citizenship as per Citizenship act, 1955

Citizenship by birth: Every person born in India on or after January 26, 1950, shall be a
citizen of India by birth.
Citizenship by descent: A person born outside India on or after January 26, 1950, shall be a
citizen of India by descent if either of his parents is a citizen of India at the time of the
person’s birth.
Citizenship by registration: A person can acquire Indian citizenship by registering
themselves before the prescribed authority, e.g. persons of Indian origin who are ordinarily
resident in India and have been so for five years immediately before making the application
for registration; persons who are married to citizens of India.
Citizenship by naturalization: A foreigner can acquire Indian citizenship, on application
for naturalisation to the Government of India.
Citizenship by Incorporation of territory: If any new territory becomes a part of India, the
Government of India shall specify the persons of that territory as citizens of India.
Termination of Indian Citizenship
 Renunciation by Voluntary Act.
 After acquiring the citizenship of another country.
 Deprivation of citizenship by an order of the Government of India.

Fundamental Rights in India

 Fundamental Rights (FRs) are known as cornerstone of Indian constitution & mentioned
in Part 3 of the constitution
 FRs prohibits unreasonable interference of the state & prevents its executive & legislature
to become authoritarian >>> Hence put due limitations of state power
 Observance of fundamental duties is essential for having one’s FRs redressed in case of
their violation

Fundamental Rights V/S Legal Rights

 Legal rights are protected & enforced by ordinary law of land whereas FRs are protected
& guaranteed by written constitution
 In violation of legal rights, one can file suit in subordinate court or by writ application in
High court whereas in violation of FRs one can directly approach Supreme court
 Legal rights can be changed by ordinary process of legislation whereas FRs cannot be
amended without amending the constitution itself (i.e. by special majority)
 FRs provides protection only against state action not against a private individual except
rights pertaining to abolition of untouchability & rights against exploitation
FRs are not absolute but qualified rights >>> Subject to certain restrictions imposed by the
state on the question of national security, interest & general welfare of the society >> But
restri tions are he ked y SC & HC”s, whether restri tions are reasona le or not on the
grounds of:

 Advancement of SC’s & ST’s

 Sovereignty & integrity of India
 Security of India
 Friendly relations with foreign states
 In interest of general public morality & public order

FRs are justifiable & can be enforced in court of law but state may deny some of the FRs to a
class of people For ex – Armed forces, Para-Military personnel, Police forces etc. for
national security & integrity

Judicial Review & FRs

 Judicial review is the power of SC & HC only to declare a law unconstitutional & void if
it is in inconsistent with any of the provision of constitution to the extent of inconsistency
 Judicial Review is power against both legislature as well as executives
 States do not make laws which abridges the rights mentioned in part 3 of the constitution
& any law made in contravention of this clause shall be void to the extent of
contraventions

Amendability of FRs
SC verdict in Golaknath V/S state of Punjab (1967) >> FRs has been given transcendental
position by constitution hence no authority functioning under constitution including
parliament has the power to amend FRs
In Keshavananda Bharati V/S state of Kerala, 1973, SC held that parliament has the
power to amend any provision of the constitution including part 3, however parliament’s
amending power subjects to “Basic structure of the constitution“

Rule of Law
 Constitution is supreme law of land & all laws passed by legislature must confirm to it
 No person is above law & all are subjected to ordinary law without any distinction of rank
or position (Exception: President, Governor, Foreign diplomats & ambassadors)
 No person can be punished or made to suffer except for violation of law & any such
violation must be looked by ordinary legal laws in courts
 Natural Justice >> No person can be judge in his own case; both sides must be heard,
unbiased & impartial justice

Six Fundamental Rights in India

Article 14 – 18 Right to Equality

Article 19 – 22 Right to Freedom

Article 23 – 24 Right against Exploitation

Article 25 – 28 Right to Freedom of Religion

Article 29 – 30 Cultural & Education Rights

Article 32 – 35 Right to Constitutional Remedies

Right to Equality
Article 14: Equality before law & equal protection of laws
 Equality before law (British origin) >> No man is above law irrespective of his rank or
position
 Equal protection of law (US origin) >> Among equals, law should be equal & equally
administered
 Exception: President, Governor, Ambassadors, Foreign diplomats

Article 15: Right against Discrimination

 No discrimination on the basis of cast, race, religion, sex or place of birth only

 No discrimination w.r.t access of shops, hotels & public places including bathing Ghats
 Empowers state to make special provisions for the advancement of SC & ST (including
their admission in educational institutions >>> Public & private both)
 Empowers state to make special provisions for women & children

Article 16: Equality of opportunity

 No discrimination against employment under state office on grounds only of religion, sex,
caste, descent, place of birth or residence >> Equality of opportunity to all citizens for
employment under state office
 Exception 1: Article 16 Forbids discrimination on grounds of residence but if their is a
good region to retain certain posts for residents only then parliament may by law regulates
the extent by which it would be possible to depart from article 16
 Exception 2: Reservation of employment for SCs & STs along with seats reserved in
matter of promotion with consequential seniority >> Unfilled vacancies to be carry
forward & not to lapse
 Person holding an office in connection with affairs of religious or denominated institutions
shall profess the same religion or denomination
 Article 17: Abolition of untouchability
 Untouchability offence act, 1955 prescribes punishment for practice of untouchability >>
Act was further amended & renamed as civil rights protection act in 1976
 Under civil rights protection act laws were made more stringent & enlarged to include
“Insulting a member of SC on grounds of untouchability, Preaching or justifying
untouchability on historical, philosophical or religious grounds”.
 1 or 2 years imprisonment & disqualification for election to any legislature

Article 18: Abolition of titles

 Prohibits the state to confer titles to anyone citizen or non-citizen >> Exception : Military
& Academic distinction
 Prohibits a citizen of India from accepting any titles from any foreign states
 A foreigner holding any office of profit or trust under the state is not to accept any titles
from foreign states without consent of the president
 No person holding any office of profit or trust under the state is to accept any gift,
emolument or office from foreign state without consent of the president

Right to Freedom
Article 19: Right to 6 democratic freedoms
Article 19-1-A: Freedom of speech & expression with no geographical limitations
 Right to express convictions or ideas by words, printing, picture, banners etc.

 Right to publish & propagate views of others

 Freedom of silence
 Right against tapping of telephonic conversation
 Freedom of press
 Right to know about government activities

Article 19-1-B: Freedom of Assembly

Guarantees all citizens of India to right to assemble peacefully & without arms but subjected
to following restrictions:
 Assembly must be peaceful
 Must be unarmed
 Further reasonable restrictions can be imposed

Article 19-1-C: Freedom to form associations / Unions / Co-operative societies

 Guarantees all citizens of India (Except Armed forces, Police force, Military
etc.) freedom to form associations or unions or co-operative societies but subjected to
certain restrictions in interest of sovereignty & integrity of public & state
 Does not confer the right to strike or declare a lock out >> Means does not confer the right
to bargain

Article 19-1-D: Freedom of Movement

 Right to move freely throughout India (Subjected to certain restrictions)

Article 19-1-E: Freedom of Residence

 Right to reside or settle in any part of the country temporary or permanent (Subjected to
certain restrictions)

Article 19-1-G: Right to Trade & Occupation

 Right to practice any profession, trade or business subjected to certain restrictions
(Professions requiring specific professional & technical qualifications)

Article 20: Protection in respect of conviction for offences

Retrospective Criminal Legislation / Ex Post Facto
 No person shall be convicted of any offence except for “violation of law in force at the
time of commission of act charged as offence, nor to be subjected to a penalty greater than
that which might have been inflicted under law in force, at time of commission of
offence”

Double Jeopardy
 No person shall be prosecuted & punished for the same offence more than once but only
in respect of punishment inflicted by court of law or judicial tribunal
 Does not immunize person from proceedings not before court of law >> means can be
punished under departmental proceedings for the same offence & then may be prosecuted
in court of law >> Can also be inflicted for contempt of court along with criminal
proceedings
 Prohibition against self-incrimination
 No person accused of any offence shall be compelled to be witness against himself

Article 21: Protection of Life & Personal Liberty

 No person shall be deprived of his life/personal liberty except acc. to procedure made by
law
 Article 21 put limitation upon powers of executive as well as legislature & conferred to
both citizen & non citizen
Article 21 – A: Right to education (Added by 86th amendment) – Absolute right
 State shall pass free & compulsory education to all children of age 6 to 14 years

 Only elementary education not higher education

Article 22: Protection against arrest & detention

 No person who is arrested shall be detained in custody without being informed on which
grounds
 Person arrested shall be brought before magistrate within 24 hours of arrest
 Without authority of magistrate no person shall be detained in custody more than said 24
hours
 Exception: Alien enemy & person arrested under preventive detention

Preventive detention (Detention without trial)

 Not to detain a person for what he has done but to intercept him before he does it &
prevent him from doing it
 No offence is proved nor a charge is formulated but such a detention is purely on the basis
of suspicion or reasonable probability of impending commission
 Max detention can be only for 3 months; for more than 3 months it must obtain a report
from advisory board ( Advisory board shall examine the statements & papers from
government & accused and will formulate whether detention is justified or not
 Accused must have the earliest opportunity of making representation against detention
order
 Accused must be told grounds for his arrest except the facts which are against public
interest to disclose
 Some of the Preventive detention acts enacted by parliament are NASA, TADA,
COFEPOSA, PITNDPSA

Right against Exploitation

Article 23: Prohibition of human trafficking & forced labor
Article 24: Prohibition of employment of children in factories, mines or any other hazardous
environment under 14 years of age (Absolute right)*

Right to freedom of Religion

Article 25: Freedom of conscience & free propagation, practice & profession of
religion
 Absolute freedom of an individual to mold his relation with god in whatever manner he
like
 Further state is empowered by law to regulate or restrict any economic, financial, political
or other secular activity which may be associated with religion practice

Article 26: Freedom to manage religious affairs

Subjects to public order, morality & health, every religious denomination shall have the
following rights:
 To establish & maintain institutions for religious & charitable purposes
 To manage its own affairs in matters of religion
 To own & acquire movable or immovable property
 To administer such property in accordance with the law (Limited right >> Subjected to
regulatory power of the state)

Article 27: Freedom from taxes for promotion of any particular religion
Article 28: Freedom from attending religious instructions
 No religious instructions to be imparted in institutions wholly maintained by the state

 No restrictions on religious instructions in institutions established under any trust or

endowment
 Religious instructions may be imparted in institutions recognized by the state or receiving
funds aid from the state but an individual is not liable to attend such forcefully
 SC verdict on R. Bommai v/s Union of India >> Declared secularism at par with
democracy & constitutes basic structure of the constitution which is beyond amending
power of the parliament.

Cultural & Educational Rights

Article 29: Protection of interest of minorities
 Minorities & everyone have right to conserve his culture, script & language and can
establish educational institutions for the same
 No citizen can be denied admission to any educational institution maintained by the state
or receiving aid out of state fund on grounds of religion, race, cast or language only (No
place)

Article 30: Right of minorities to establish & administer educational institutions

 All minorities whether based on religion or language shall have the right to establish &
administer educational institutions of their choice
 States in granting aid to educational institutions shall not discriminate against any
educational institution on grounds of management under minority (based on religion or
language)

Right to constitutional Remedies

 Heart & soul of the constitution which makes supreme court a guarantor & protector of all
FRs
 Guarantees an individual a right to move to supreme court by appropriate proceedings for
enforcement of FRs conferred under part 3 of the constitution
 SC is endowed with power to issue directions, orders or writs, whichever is appropriate
for enforcement of any of the rights conferred by part 3 of the constitution
 FRs & Armed Forces
 Under article 33, parliament by law can restrict FRs available to member of armed forces
or forces charged with maintenance of public order to oblige them to properly discharge
their duty
 Any law made under article 33 by parliament cannot be challenged in court of law

FRs & Martial Law

 Article 34 put restrictions on FRs when martial law is in force
 Article 19 is automatically suspend
 Sentenced passed by highest officer as validated by martial law is supreme

FRs & Emergency Provisions

Article 352
 FRs under article 19 are suspended by president in case of national emergency on grounds
of war or external aggression
 But only after when it is conveyed to president by parliament in writing passed by 2/3rd of
members present & voting

Under article 359, President may also suspend the operations of other FRs in case of
national emergency

44th amendment prohibits suspension of Article 20 (Protection w.r.t conviction of offences)

& 21 (Protection of life & personal liberty) even during national emergency
 President may by issuing a proclamation can restore FRs (Other than of article 19) which
were suspended under article 359, even when national emergency is in force
 Rights outside Part 3 of constitution
Article 300 A
 No person shall be deprived of his property except by authority of law (No writ petition
for this)
 Right to property was removed from Fundamental right & transferred to legal rights by
44th amendment

Article 326
 Elections to the house of people & to legislative assemblies of the states should be on the
basis of universal adult suffrage

Exception of 44th amendment for classes who still enjoy right to property
 If the property acquired belongs to an educational institution established & administered
by minority, state must offer full market value as compensation
 If states seeks to acquire land cultivated by the owner himself & such land which does not
exceed statuary ceiling, then state must offer full market value as compensation

Directive Principle of State Policy (DPSP)

Directive Principle of State Policy provides guidelines to central & state government in
India, to be kept in mind while framing laws & policies & mentioned in part 4 of the
constitution.
 DPSP + FR >> Conscience of Indian Constitution

Basic aim of DPSPs is to set up social & economic goals before the law makers
 To bring socio-economic change in the country
 To fulfill the basic needs of the common man
 To reshape the structure of Indian society in direction of greater socio-economic equality.

DPSPs are fundamentals in governance of the country & shall be considered dutifully by the
state while making laws, but DPSPs are not enforceable in court of law
 If state fails to fulfill these obligations, one cannot go to court of law
 DPSPs only provides a yardstick for measuring success or failure of the government
 Articles 36 to 51 deal with the provisions of the Directive Principles & are broadly classified
into
 Socialist principles

 Gandhian principles
 Liberal intellectual principles

Socialist Principles
 To secure a social order for the promotion of welfare of the people.
 To strive to minimise inequalities of income i.e. operation of the economic system does
not result in the concentration of wealth and means of production to the common
detriment;
 ownership and control of the material resources of the community are so distributed as
best to subserve the common good;
 Equal justice and free legal aid.
 Ownership and control of material resources of the community shall be so distributed so
as to subserve the common good.
 Equal pay for equal work.
 Health & strength of workers, and the tender age of children must not be abused.
 Right to work, to education and to public assistance in certain cases.
 Provision of just and humane conditions for work and maternity relief.
 Participation of workers in the management of the industries.
 Duty of the State to raise the level of nutrition and the standard of living and to improve
public health.
 Children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment.

The Western Liberal Principles

 Uniform Civil Code for the citizens.
 Provide free and compulsory education for children below 14 years.
 Separation of Judiciary from Executive.
 To promote international peace and amity.
 Protection of monuments and places and objects of national importance
 Protection and improvement of environment and safeguarding of forests and wild life.

The Gandhian Principles

 Organization of Village Panchayats & to promote cottage industry.
 Promotion of educational and economic interests of the SCs, the STs and the other weaker
sections of the society.
 To bring about the prohibition of intoxicating drinks and drugs that are injurious to health.
 Organization of agriculture and animal husbandry on modern and scientific lines to
prohibit the slaughter of cows, calves and other milch and draught animals.

97th Amendment: Promotion of cooperative societies

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

Article 350 A: It enjoins every State and every local authority within the State to provide
adequate facilities for the instructions in the mother tongue at the primary stage to children of
linguistic minority areas.
Article 351: It enjoins the Union to promote the spread of Hindi Language so that it may
serve as a medium of expression of all the elements of the composite culture of India.
Article 335: It says that the claims of SC/ST shall be taken into consideration, consistently
with the maintenance of efficiency of administration, in the making of appointments to
services and posts in connection with affairs of the Union or of a State.
Under the implementation of DPSP, Zamindari, Jagirdari & inamdari systems were
abolished & actual tillers of the soil were made owner of the land.

DPSPs v/s FRs

FRs provide the foundation of political DPSPs spell out the character of social &
democracy in India economic democracy in India

Lays down negative obligation / restriction on DPSPs are positive / moral obligations of state
the state i.e. FRs are prohibitive in nature towards the citizens

FRs have been laid down in clear legal DPSPs are laid in general terms and are sort of
language in constitution moral obligations

FRs represent something static i.e. to preserve DPSPs represents a dynamic move towards the
certain rights which already exist betterment of the citizens

FRs are justifiable in nature & can be enforced DPSPs are non-justifiable in nature & can not
in court of law be enforced in court of law

What if laws made by state giving effect to DPSP’s violates FR, can they be valid? This
question was raised before SC in 1951 in Champakam Dorairajan case !
 SC held that they are supplementary to each other & no as such inherent conflict is between them,
thus, as far as possible, should be interpreted harmoniously. However, if it is not possible, FRs will
prevail over DPSPs means DPSPs can not override FRs, hence such a law is void.

 On this ground, SC held Bank nationalisation act & Privy purse (abolition) act unconstitutional

 In 1971, 25th amendment introduced a new article 31-c, which states that “if state enacts any law
giving effect to two directive principles viz. Equitable distribution of wealth (article 39-b) &
Prevention of concentration of wealth in fewer hands (article 39-c), & in that process if the law
violates FRs (article 14, 19 & 31), it can not be held void merely on this ground.
 Article 31-c further states that such a law giving effect to 39 – b & 39 – c, can not be questioned in
court of law.

 25th amendment was challenged in Kesavananda Bharati case (1973), in which SC held that only first
part of the article 31-c (overriding article 14, 19 & 31) is valid, but second part which bars judicial
review held unconstitutional.
 42nd amendment, 1976 further amended article 31-c & widened its scope & gave precedence for all
DPSPs over article 14, 19 & 31 & hence made them immune to judicial review.
 Minerva Mills case, 1980: SC struck down the changes introduced by 42nd amendment in article 31-c
& held them unconstitutional on grounds that total exclusion of judicial review would offend the basic
structure of the constitution.
Presently, only article 39-b & 39-c can be given precedence over articles 14 & 19

undamental Duties – India

Fundamental Duties were added to Indian constitution by 42nd amendment in 1976 on
recommendations of Swarn singh committee
Initially 10 Fundamental Duties were added under article 51 A in part 4 – A through 42
amendment, Later via 86th amendment 11th Fundamental Duty was added in 2002
Fundamental Duties are basically statuary duties & are enforceable by law (Means violation
of these duties can be met with punishment as prescribed by legislature of India)
a) To abide by the Constitution and respect the National Flag and the National Anthem;

b) to cherish and follow the noble ideals which inspired our national struggle for freedom;
c) to uphold and protect the sovereignty, unity and integrity of India;
d ) to defend the country and render national service when called upon to do so;
e ) to promote harmony and the spirit of common brotherhood amongst all people of India,
transcending religious, linguistic and regional or sectional diversities and to renounce
practices derogatory to the dignity of women;
f ) to value and preserve the rich heritage of our composite culture;
g ) to protect and improve the natural environment including forests, lakes, rivers and wild
life and to have compassion for living creatures;
h ) to develop the scientific temper, humanism and the spirit of inquiry and reform;
i ) to safeguard public property and to abjure violence;
j ) to strive towards excellence in all spheres of individual and collective activity, so that the
nation constantly rises to higher levels of Endeavour and achievement.“
k ) to provide opportunities for education by the parent the guardian, to his child, or a ward
between the age of 6-14 years as the case may be.
An analysis of the above duties reveals that they are applicable only to citizens and not to
the aliens & expected that a citizen of India while enjoying fundamental rights, should also
perform these duties. Although there is no provision in the constitution for direct
enforcement of any of these duties, yet, the courts are guided by these duties while
interpreting various laws

 Addition of Fundamental Duties along with exceptions to FR’s limits the operation & free
enjoyment of FR’s
 Some of the duties are very difficult to comprehend & also do not appear to be capable of
legal enforcement but only best regarded as directory to Indian citizens
Section 2 → The Union, President, Vice President, COM, AGI, CAG

President: Qualification, Election, Powers, Removal

President
 Elected for 5 year term & eligible for re-election
 Executive head of India & all the executive powers of the union shall be vested in him
 Supreme commander of the arm forces
 1st citizen of India & occupies 1st position under warrant of precedence

Executive powers vested in president shall be exercise on advice of COM responsible to the
parliament, however, 42nd amendment made it obligatory for the president to accept advice of
COM

Election of President: Article 54

The President of India is elected indirectly by the Electoral College according to secret ballot
by the system of proportional representation through single transferable vote.The President
of India is elected by an electoral college consisting of:
 Elected members of the two Houses of Parliament and Legislative Assemblies of the
States
 States includes national capital territory of Delhi and the Union territory of Pondicherry

Do Not Participate
 Nominated members of both the houses of the parliament & of state legislative assemblies

 All the members of legislative council of states

There shall be uniformity in the scale of representation of the different states at the election
of the President as follows:
 Value of vote of an MLA of a state: (Population of state / Total number of elected
members of state legislative assembly) * 100
 Value of vote of an MP: (Total value of votes of MLA’s of all states/ Total number of
elected members parliament) * 100
 Hence, value of vote of MLA of UP is highest & value of vote of MLA of Sikkim is lowest
 By 42nd amendment, census of 1971 was to be followed till 1st census after 2000, but in 2000, Union
cabinet extended the same till 1st census after 2026 by 81st amendment 2001

For a candidate to be President, one must fulfill electoral quota

Electoral Quota: (Total number of valid votes polled / 2) + 1
 Candidate with last position gets eliminated & 2 preference of all ballots, who ranked
nd

eliminated candidate 1st, is added to all accordingly. This process is followed till someone
fulfill electoral quota
 Dispute regarding election of president (Article 71) or vice president is inquired & decided
by supreme court whose decision is final
 Article 71 further states that no such disputes can be raised on the grounds of any vacancy
in electoral college

Article 58 → Qualification for election of President

 Must be citizen of India
 Must be of 35 yrs of age
 Must be qualified for election for member of house of the people (LS)
 Must not hold any office of profit under Gov. of India or Gov. of any state or any local or
other authority

Following persons shall not be deemed to hold any office of profit, hence are qualified for
being a candidate for presidential election:
 President
 Vice President
 Governor of any state
 MP / MLA

 Nomination of a candidate for election to the office of President must be subscribed by atleast 50
electors as proposers & 50 electors as seconders

 Every candidate has to make a security deposit of Rs. 15000 in RBI, liable to be forfeited in case
candidate fails to secure 1/6th of the votes polled
Conditions to Presidential Office
 Shall not be member of any house of the parliament or state legislature & if he is, then
must vacate the seat
 Shall not held any other office of profit
 Parliament law 2008 : Pay of Rs. 1,50,000 monthly & official residence without pay
 Pension of 9 lakhs / annum

Immunities to the President

 Personal immunity from legal liabilities for his official acts
 Immune from any criminal proceeding during his terms of office means can not be
imprisoned or arrested , However, civil proceedings can be instituted in his term of office
w.r.t his personal acts, giving 2 months of notice prior to the proceedings

Oath by President (Article 60)

 President takes oath in presence of chief justice of Supreme Court “ To preserve, protect
& defend the constitution & law”

Terms of office of President (Article 56)

 President shall hold the office for terms of 5 years from the date he enters upon his office.
Even after expiry of his terms, he shall continue in office untill his successor enters upon
his office
 May resign his office before the expiry of his normal terms of 5 years by writing to the
vice president

Article 61 (Impeachment of the President)

Power of impeachment of president lies in parliament only for violation of the constitution &
can be removed from his office before the period of 5 years (Quasi-judicial process)
 Impeachment resolution can be initiated in any house of the parliament

 Resolution initiated must be signed by 1/4th of the candidate of the initiating house
 Before the resolution is passed , a 14 days’ notice must be given to the president
 Such a resolution must be passed by majority of not less than 2/3rd of total membership of
the initiating house
 Then the other house of the parliament also called investigating house investigates the
charges by itself
 President has the right to appear & to be represented at such investigation to defend
himself
 If as a result of investigation, other house also passes a resolution supported by not less
than 2/3rd of total membership of the house, President stands removed from his office,
from the date investigating house passed the resolution
 Other than impeachment, no other penalty can be imposed on the president for violation of
the constitution
Process of impeachment of President is deficient on following accounts:
 Term ‘violation of constitution is very vague term & has not been defined anywhere in the
constitution’
 Elected members of legislative assemblies have no role to play in impeachment
proceeding while they have a role in election of the president
 Nominated members of parliament have the right to deliberate & vote when the resolution
of impeachment is under consideration while they have no vote in election of president
 Procedure & authority to investigate the charges against president have not been specified
nor any definite time period has been specified

Vacancy in President’s Rule

 In case, office of president falls vacant due to death, resignation or removal of President,
Then Vice president or in his absence Chief justice of India or in his absence Senior most
judge of SC becomes the president until next elections are held & new president assumes
the office
 President’s office can remain vacant for max. of 6 months
 If president is not able to discharge his duties due to sickness or absence or due to any
other reason than the vice president discharges the functions of President (VP is entitled to
the same allowances & privileges of President during this period)

Article 53: Executive powers of the union shall be vested in president & shall be exercised
by him either directly or indirectly or through officers subordinate to him, But always in
accordance with the constitution
Executive powers → Powers of carry out administration of affairs of the state, except
functions of legislature & judiciary

Administrative Powers of president

 Powers to appoint
 Prime minister of India

 Attorney General of India

 Comptroller & Auditor general of India
 Judges of Supreme Court & High court
 Governor of the states
 Finance commissioner & its members
 Members of UPSC & Joint commissions for group of states
 Chief election commissioner & its members
 Chairman & members of SC & ST of commissions

 In fact every appointment of union government is made in the name of president or under his
authority.

 He directly administers the Union territories through administration appointed by him

 President can declare any area as scheduled area & has powers w.r.t administration of schedule areas
& Tribal areas.

Power to remove
 His ministers’ individually
 Attorney general of India
 Governor of the state
 Chairman of UPSC or state administration on report of SC
 Judges of SC or HC
 Chief election commissioner
 Comptroller & auditor general of India
 Finance commissioner
(Removal mainly based on the address of the parliament)

Legislative Powers
 Summons the houses of parliament atleast twice a year, Prorogue either house & can
dissolve Lok sabha
 Nominates 12 members of Rajya Sabha & may nominate 2 representatives of Anglo
Indian community to Lok Sabha
 May address either house seperately or jointly or can send messages to them. At the
commencement of 1st session of parliament annually, President delivers an address
corresponding to queens speech from the throne in British parliament
 Every bill passed by parliament must receive presidential assent before it can become an
act. President may give his assent or withhold or return it for reconsideration along with
his own suggestions ( Except money bill and constitutional amendment bill)
 But if the bill is passed again with or without the amendments President is bound to give
his assents to it

President makes certain reports & statements to be laid before parliament as stated below:
 Annual financial statement (Budget) & supplementary statement
 Auditor General Report relating to accounts of government of India
 Recommendation made by finance commission
 Report of UPSC, explaining the reasons where any advice of the commission has not been
accepted
 Report of National commission for SCs & STs
 Report of special officers for linguistic minorities

Certain bills (Bill for formation of new states or alteration of boundaries of states, money
bill, financial) needs presidential recommendations for introduction in parliament

Veto powers of the President

Absolute Veto: Power of president to withhold his assent to a bill passed in parliament. The
bill then ends & does not become an act. If before passing assent to a bill, ministry resigns &
a new COM is formed, then on its advice President can use his veto powers against the bill .
(In 1954, Rajendra prasad withheld his assent to PEPSU appropriation bill)
Suspensive Veto: Power of president to return a bill passed in parliament for reconsideration
(except money Bill)

Pocket Veto: No time frame for President to give his assent or refuse i.e. pocket a bill for
infinite times (Not for constitutional amendment bill as 24th amendment 1971, made it
obligatory for the president to give his assent to constitutional amendment bill

Ordinance making powers of the President

Ordinances – interim or temporary legislation laws → President can issue ordinances only
on subjects’ parliament can legislate or make laws with same limitations as of parliament
President promulgate ordinances (authoritive order) under article 123 mainly when either or
both the houses of parliament are not in session & immediate action is needed
A Presidential ordinance has same force & effect as an act of parliament. However, it must
be laid down before both the houses of the parliament & must be approved by both the
houses within 6 weeks from re-assembly of houses. Failure to comply with this condition or
parliamentary disapproval within 6 weeks period will make ordinance invalid

Judicial Powers (Basically Pardoning Powers)

 Where the punishment or sentence is by court martial
 Where the punishment is for offence against union law
 In all cases where sentence is death sentence “Only authority for pardoning a death
sentence”

Pardon: Can rescinds both conviction & sentence + can absolve the offender from all
offences & disqualification
Reprieve: Can make stay of execution of a sentence (esp. of death) for pardon or
commutation
Remission: To reduce amount of sentence without changing its character (ex. 6 months for 1
yr)
Respite: Awarding a lesser sentence instead of a prescribed penalty in view of special facts
(ex. in case of pregnant women offender)
Commutation: Substitutes one form of punishment for another or lighter character
 Emergency Powers
National Emergency → Article 352 → On grounds of threat to security of India or any part
of it , By war, external aggression or armed rebellion
Presidential Rule → Article 356 → Proclamation for taking over the administration of a
state, when state government can not carry out administration in state in accordance with
provisions of the constitution
Financial Emergency → Article 360 → When financial stability of credit of India or any
part thereof is threatened
“Any proclamation under the emergency powers of the president, in order to be in operation beyond a
certain period, should be approved by parliament within the period so specified by parliament”

Financial Powers
 It is only on the permission of president that annual financial statement (Budget) is laid
down before the parliament
 Recommends the introduction of money bill & financial bill in parliament
 Constitutes finance commission after every five years
 Controls contingency fund for unforeseen expenses like flood, drought, war etc.
 Places report of CAG before parliament & recommendations of Finance commission

Military Powers
 Supreme commander of armed forces
 Has power to declare war & peace
 But, His military powers are subjected to the regulations of law, therefore, parliament has
the real power to regulate or control the exercise of such powers

Diplomatic Powers
 Sends & receive ambassadors & other diplomatic representatives
 All treaties & international agreements are negotiated & amended in the name of
president, though subjected to ratification by parliament
 President’s Position
 Whenever constitution requires the satisfaction of the president, it is not his personal
satisfaction, but is the satisfaction of COMs
 It is obligatory for the president to always have a C.O.M
 Even after dissolution of lower house (Lok Sabha) of parliament, COMis in existence to
aid & advice the president in exercise of his executive powers
 If he ignores the advice of COMs or acts contrary to advice of COMs, he can be
impeached for violation of constitution

42nd amendment, 1976 →Amended article 74 & made advice of COMs binding for the
president
44th amendment 1978 → Further amended 74th article that President may require COMs to
reconsider an advice, but is bound to act after reconsideration
Though president is not connected with decision making power of the cabinet, yet article 78
A, casts on PM to keep President informed of all cabinet decisions, concerning
administration of affairs of the union & proposal for legislation.Under some circumstances,
president has to act as per his own wisdom, sense of justice & discretion:
 Appointment of PM, under situation when no single political party commands clear
majority support of lok sabha
 Appointing a PM in case of vacancy due to sudden death & availability of no
acknowledged leader, due to inability of legislature party to do so and absence of settled
seniority among cabinet members; name of PM is proposed from outside
 Dissolution of Lok sabha on advice of COMs which has lost the support of majority
members of lok sabha or against whom a motion of no confidence has been passed
 Dismissing ministries, in case COMs has lost the confidence of lower house of the
parliament but still refuses to resign

Vice President: Qualification, Election, Removal, Emoluments

Vice President
 Appointed for 5 years
 Ex- officio chairman of council of states (Rajya Sabha)
 2nd highest dignitary of India, occupying 2nd place in warrant of precedence
 Presides over the proceedings of Rajya sabha.

Whenever vacancy occurs in the office of President or President is unable to discharge his
duties, Vice President acts as president of India & ceases to perform duties as chairman of
Rajya Sabha (During this period, he is entitled to all emoluments & incentives of President)

Qualification for Vice President

 Must be citizen of India
 Must be 35 years of age
 Must not held any office of profit
 Qualified to be elected as a member of Rajya Sabha
Can not be a member of either house of the parliament or state legislature & if a member of
parliament or state legislature is elected as Vice President, he ceases to be member of
parliament of state legislature from the date he enters upon his office of VP
 Nomination of a candidate for election to the office of VP must be subscribed by atleast
20 electors as proposers & 20 electors as seconders.
 Every candidate has to make security deposit of Rs. 15000 to RBI, stands forfeited if
failed to get 1/6thof the votes polled

VP holds office for 5 years, but if his successor is unable to enter the office, he continues to
hold his office beyond the stated period of 5 years until his successor enters upon his office
(But election is to be held no later than 60 days of expiry of the term of office of outgoing
VP)

Election of Vice President

 Elected indirectly by Electoral College, consisting of all members of parliament (Both
elected & nominated) → (State government do not participate in VPs election)
 Election is held in accordance with system of proportional representation by means of
single transferrable vote & voting via secret ballot.
 Supreme Court has final & exclusive jurisdiction for resolving disputes & doubts relating
to election of Vice President
Oath – Vice President
VP takes oath in presence of President, “to bear true faith & allegiance to constitution of
India & to faithfully discharge duties of his office”

Removal of Vice President

 VP can be removed from his office by a resolution raised only in Rajya sabha, passed by
effective majority e. Greater than 50% of (Total membership – Vacancy) & agreed upon
by simple majority i.e. greater than 50 % of total voting members, of the Lok sabha.
 Prior to passing the resolution in Rajya sabha, a 14 days’ notice should be served to him
 A formal impeachment is not required for his removal as in case of President
Emoluments
 Rent free accommodation from Government
 Annual salary of Rs. 1,25,000 & pension of Rs. 7.5 Lakhs / Annum
 When acts as President, he gets all the allowances, powers, immunities & salary of
President

Council Of Ministers
Council of ministers consists of
 Cabinet ministers
 Minister of States (Independent charge)
 Deputy Minister (Minister of state)

Points to Ponder
 PM is appointed by President & on PM’s advice COMs (President has to accept PM’s
choice)
 Strength of COMs is not fixed, but depends on PM but shall not increase 15% of total
strength of the Lok sabha as per 91st amendment
 A COM must be a minister of either of the house of parliament. If a person who is not a
member of either house of the parliament, is appointed as minister, he shall cease to be a
minister after 6 months, unless, he manages to get elected to either of the 2 houses
 Ministers are required to take oath of secrecy administered by President
 A COM may be chosen from either house of the Parliament. A COM who is member of
one house, has the right to speak in & take part in proceedings of other house without any
right to vote if he is not the member of that house
 Constitution does not classify members of COM into different ranks, but is done
informally following British practice

Cabinet
 An informal body of senior ministers who forms the inner circle. It is the cabinet, which
meets as & when summoned by PM, for taking important decision of the government.
 Cabinet is the real policy making body of COM
 A cabinet minister always heads a ministry & is given independent charge of it, unless he
is appointed as a minister without portfolio
 Generally assisted by minister of state (but not bound constitutionally) or a deputy
minister or both
 A cabinet minister attends meetings of cabinet on his own right
 A minister of state is given an independent charge but generally assist a cabinet minister in
running the ministry
 A minister of state can not attend meeting of cabinet on his own right but can attend if
invited. He is normally invited when given independent charge of a ministry
 A deputy minister is a junior member of the COM. He always functions under a cabinet
minister or minister of state. He does not attend a cabinet meeting

Original constitution did not specifically mention the word cabinet anywhere. It was through
44thamendment, 1978 word cabinet was used under article 352. But it is not defined anywhere
& is based on understanding & conventions of Britain
All members of COM are not member of cabinet. Its composition is flexible. It is for PM to
determine from time to time the composition of cabinet, though due to relative importance of
certain departments, their ministers are invariably its members
Cabinet is central directing instrument of government in legislation as well as administration.
It is cabinet which controls parliaments & governs the country. Primary function of cabinet is
to formulate policies of government for the good governance of the country, have it accepted
by the legislature & carry on executive function of the state as per the constitution & laws
Principle of collective responsibility
 Basic principle of parliamentary or cabinet form of government is principle of collective
responsibility.
 COMs is collectively responsible to lok sabha for the policies & decisions of the
government, even though a decision taken may pertain to a single ministry
 Individual ministers may have differences among themselves on certain issues, but once a
decision is taken by the cabinet, it becomes joint decision of COMs. If a minister does not
agree with the decision of cabinet, he has no option but to resign from COMs . He can not
disapprove a decision of the cabinet & at the same time remain as a member of COMs
 If a decision of a particular ministry on a political matter is defeated in Lok sabha, it is not
the ministry who resigns, but the whole COMs resigns, But if a minister has implemented
a decision without the approval of cabinet & it is defeated in Lok sabha, minister
concerned only has to resign, not the whole cabinet

All ministers are individually responsible to the President. Ministers hold office during the
pleasure of the President & can be removed from COMs by the President at any time but
only on the advice of PM. Hence, this power is mainly exercised by the PM
PM (1st among equals) is keystone in cabinet arch which means if he resigns or dies, whole
COMs goes out with him or COMs does not exist without the PM
PM acts as a connecting link b/w cabinet & President in communicating all decisions of
COMs & administrative or legislative affairs to the President
He is leader of majority party in Lok sabha & the main link b/w cabinet & parliament, acts as
government chief spokesperson in Parliament

President enjoys the right to information of affairs of the state & holds:
 Right to be consulted

 Right to encourage
 Right to warn

Attorney General of India

 Appointed by President
 Must be qualified to be appointed as a judge of SC
 Holds office during the pleasure of the President & can be removed by him anytime.
Conventionally he resigns when COMs resign or is replaced as he is appointed on their
advice
 1st law officer of GOI & its chief legal advisory & primary lawyer in SC
 Not a member of cabinet, Does not have any executive authority & is not a political
appointee

Points to Ponder
 Can not defend an accused in criminal proceedings or accept directorship of any company
without the permission of the government
 Assisted by 2 solicitor generals (appointed for 3 yrs) & 4 additional solicitor generals
(appointed for 3 yrs), eligible for re-appointment, for a further term not exceeding three
years.
 To be consulted only in legal matters , only after ministry of law has been consulted
Duties of Attorney General
 To give advice to GOI on legal matters
 To perform other legal duties assigned to him by the president
 To discharge function assigned to him by constitution or other legal laws
 Enjoys the right of audience in all the courts of India
 Entitled to take part in proceedings of the parliament & can be a member of parliamentary
committees but does not have a right to vote in parliament
 Allowed to take up private practice, provided other party is not the state. Because of this
he is not paid salary but a retainer (to be determined by the President) Equivalent to salary
of a Judge of SC

Difference between Attorney General & Solicitor General:

 Solicitor General is subordinate to the Attorney General of India and works under him.
 The Solicitor General for India is the second law officer of the country, assists the
Attorney General
 Unlike the post of Attorney General of India, which is a Constitutional post under Article
76 of the Constitution of India, the posts of the Solicitor General and the Additional
Solicitors General are merely statutory.
 Comptroller & Auditor General of India (CAG)
 Appointed by President, nominated by PM of India

 Office term – 6 years or upto 65 yrs of age

 Salary – 90,000 / month & can be removed by the President on the same grounds & manner as a judge
of SC
Duties & Function
 He is the chief Guardian of Public purse & head of Indian audit & account department

 Audits accounts of Union & states to ensure nothing is spent out of consolidated fund of India or of the
state without the sanction of the parliament or respective state legislature
 Audits government owned companies (51% stake of Gov.) as an external auditor

 Reports of CAG are taken into consideration by public accounts committee (PAC)

Public accounts committee (PAC)

 A committee of not more than 22 members (LS → 15 & RS → 7)
 formed every year in parliament & state legislature

 No member of PAC should be from COM)

 Chairman of PAC is appointed by speaker of Lok sabha & is generally from opposition party

Independence of office of CAG

Gets security of tenure as though appointed by President, CAG may be removed from his office
only on the grounds of proved misbehavior or incapacity only in a manner as a judge of SC is
removed (i.e. each house of parliament is passing a resolution supported by not less than 2/3rd of
the members present & voting )
 Salary & conditions of his service can not be changed except under financial emergency

 His salary is charged from consolidated fund of India & is not subjected to vote of parliament (paid
salary equivalent to Judge of SC) & is eligible for annual pension
 In other matters, his conditions of service shall be determined by rules applicable to an IAS officer,
holding a rank of secretary to GOI

 After retirement, he is disqualified for appointment under union or state government

Section 3 → Indian Parliament – Rajya Sabha, Lok Sabha, Bills &

Working procedure
 The Parliament – President, Rajya Sabha & Lok Sabha
 President
Indian  Council of states (Rajya Sabha)
Parliament
 House of the people (Lok Sabha)

 Though President is not the member of either house of the parliament, he is an integral
part of it.
 Principle function of Parliament is to legislate i.e. to make laws on all subjects enumerated
in Union and Concurrent list (also on residuary subjects) & in some cases on state list
subjects for the benefit of the country
 COM as a body is responsible to parliament for general affairs of the government.
 As a result, a vote of no confidence against any one minister is tantamount to vote of no
confidence against whole COM
 Lack of parliamentary confidence in the government may be expressed by house of the
people by -

 Passing motion of no confidence in COM

 Passing a censure motion

 Passing an adjournment motion

 Defeating the government on financial measures

Rajya Sabha
 VP is ex-officio chairman of Rajya Sabha
 Total membership is 250

 238 members elected as representative of state & UTs

 12 members nominated by president (Veterans from art, science, literature & social services)

 There is no difference b/w elected & nominated members except only elected members
can participate in elections of President
 Office term for RS is 6 years with 1/3rd of members retiring every 2 years
 RS members are elected by legislative assembly of states & UTs by means of single
transferable vote through proportional representation (Based on population)
 Only 4 members are elected from UTs

 3 from Delhi

 1 from Pondicherry

 No seat is reserved for SCs & STs

 Retired members of RS are eligible for re-election & re-nomination
 RS meets in continuous sessions & is not subjected to dissolution
 Salary & other benefits are same as Lok sabha
 RS have equal footings in all the areas of legislation compared to Lok sabha except in area
of supply, where Lok sabha has overriding powers

Qualifications
 Must be citizen of India & have attained 30 years of age
 Must be a registered voter in parliamentary constituency in any of the state
 Subscribe before election commission an oath, as prescribed by 3rd schedule
  11 am – 12
 Q & A hour
Working Hours  1st hour of working days i.e. Monday to Friday

Special Powers
 A resolution seeking removal of VP can be originated only in Rajya Sabha
 Under article 249, it can shift an item of state list to union or concurrent list

 If RS passes a resolution by majority of not less than 2/3 rd of members present & voting, then it is
expedient for parliament to make laws wrt any matter enumerated in state list for whole or any part of
territory of India on that matter for a period of not less than 1 year.

 However, RS can extend the law by passing same resolution with same majority for 1 year
continuously

 If RS passes a resolution by 2/3rd of majority of members present & voting, then it is

expedient in national interest to create one or more all India services

Limitations
Money Bill
 If Rajya Sabha returns the bill to Lok Sabha opposing the bill, then it is deemed to have
passed.
 Rajya Sabha can send recommendations to Lok Sabha, but Lok Sabha is not bound to act
on it.
 Also Rajya Sabha does not have pocket veto & if it does not passes the bill within 14
days, it is again deemed to have been passed by the house
No confidence Motion
 Unlike Lok Sabha, it cannot pass motion of no confidence against the government

Lok Sabha
 Also known as lower house of parliament or house of the people
 Members are directly elected by the people for 5 years
 Lok Sabha can be dissolved by the President
 Total strength is 552

 530 → Representatives of the state,

 20 → Representatives of UT’s
 2 from Anglo Indian community nominated by President)

 Parliament has frozen the representation of states & UTs at 543 till 2026 by
84th amendment in 2001
 Seats are allotted to every state on the basis of population as far as possible

 Based on 2001 census i.e. in ratio b/w no. of seats allotted to its population

 Provision does not apply to states having Population < 6 million

 Certain seats are reserved for SCs & STs → According to 87th amendment 2003 viz.

 2001 census as delimitation of constituencies of Lok Sabha

 State legislative assemblies within the state for SC / ST population

 42nd amendment 1976, extended the normal life of Lok sabha to 6 years but
44th amendment 1978 again reversed it to a period of 5 yrs
 Duration of Lok sabha can be extended by a max. of 1 year at a time during proclamation
of national emergency – Article 352, But if proclamation comes to end then not more than
6 months

Qualifications
 Must be a citizen of India & must have attained age of 25 years
 Must be a registered voter in parliamentary constituency of India
 Must subscribe by an oath administered by Election commission as mentioned in
3rd schedule

Special Powers
 Motion of no confidence can only be initiated & passed in Lok sabha
 Money & Financial bill can only be originated in Lok sabha
 RS cannot amend or reject money bill
 Under article 352, Lok sabha in special sitting, can disapprove the proclamation of
President, regarding continuance in force of national emergency. Hence, President has to
revoke the emergency in this case

Rajya Sabha & Lok Sabha

Disqualifications (RS & LS)
 Must not hold any office of profit

 Must not of unsound mind & undischarged solvent

 Must not acquire citizenship of foreign country
 Must not be disqualified under any law made by the President
Resignation (RS & LS)
 May submit resignation to the speaker of Lok Sabha / Chairman of Rajya Sabha
respectively
 Disqualified if absent for 60 days without the permission of the house
 Penalty of Rs. 500 / Day as a debt to Union for sitting & voting when a person is not
qualified or has been disqualified or not affirmed by oath
Difference between Lok Sabha & Rajya Sabha

Privileges & Immunities of Parliament

 Freedom of speech to each MP which means no action shall be taken on any words or
speech spoken by him during the proceedings of the house
 No action for any public speech
 Absolute immunity from any action & for anything stated within the house
 Protected from any disclosure that one makes in parliament

Freedom from arrest

 Cannot be arrested & put in prison for any civil action within a period of “40 days before
& after the commencement & termination of a session of the house”
 Immunity does not extend to arrest in criminal proceedings or contempt of court or
preventive detention
 Right to refuse to give evidence & appear as a witness in a case pending in court of law
when parliament is in session
 Inquiries within House
 Each house has the power to institute enquiries & order attendance of the witnesses. In
case of disobedience, may order to bring witnesses in custody to bar of the house

Disciplinary Powers
 For offending conduct of the house may impose disciplinary action on the member

 May expel a member for ill conduct inside or outside of the house

Privacy of debate & Right to exclude others

 Proceedings & sitting in camera

 Publication of proceedings on media

 Powers to punish a member or outsider for contempt of the house

Committee of Privileges
 To look after powers, privileges & immunities of the house & its members
 Lok Sabha → 15 members as nominated by the speaker
 Rajya Sabha → 10 members as nominated by the chairman

Limitations
 Restrictions imposed by the rules of procedure of the house
 No discussion can take place in parliament wrt conduct of any judge of SC or HC in
discharge of his duties except upon a motion for removal of a judge

Speaker of Lok Sabha, Chairman of Rajya Sabha

Speaker & Deputy Speaker of Lok Sabha
 Elected by members of LS among themselves & do remain in office as
long as they are members of the house
 Speaker continues in his office even after LS is dissolved, till newly
elected LS is constituted.
 In normal situations, Speaker does not vote in 1 instance, but exercises his
st

casting vote in case of tie i.e. in case of equality of votes → to maintain

impartiality of his office
 He is representative & spokesperson of the house in its collective capacity
& chief custodian of its powers & privileges

Removal of Speaker
 Speaker & deputy speaker may resign by writing to each other
 Can be removed by a resolution passed by effective majority after giving a
14 days prior notice
 When such a notice is in consideration against the speaker, He can not
preside over the proceedings of the house. He can, however, participate in
proceedings of the house & can even vote in 1 instance, though not when
st

there is an equality of votes

Impartiality & Independence of office of speaker
 His salary & allowances are fixed by parliament by law & charged from
consolidated fund of India & are not subjected to annual vote of
parliament
 His work & conduct can not be discussed & criticized in LS except while
substantive motion
 Can not be removed from the office except a resolution passed by effective
majority

Powers of Speaker
 Possesses certain powers that do not belong to chairman of RS
 Presides over joint sitting of 2 houses of the parliament
 When a money bill is transferred from LS to RS, power to certify it as
money bill is given to speaker & his decision whether a bill is money bill
or not is final
 His permission is compulsory on question of bringing adjournment motion
 Passed only in Lok Sabha

 Adjournment of business of the house for purpose of discussing a definite matter of

urgent public importance)
 Appointment of primary committees & himself as ex – officio chairman of
certain committees of the parliament
 Speakers conduct in regulating the procedure of maintaining order in
house is not subjected to jurisdiction of court
 Under anti deflection act, authority of speaker if final, though open to
judicial review

Chairman / Deputy chairman of Rajya Sabha

 VP / Chairman of RS presides over the proceedings of RS as long as he
does not act as President of India
 In absence of chairman, Deputy Chairman presides over the proceedings
of RS
 Deputy Chairman is elected by members of RS among themselves

 Deputy Chairman’s salary is equivalent to speaker of Lok sabha

 Presiding officer of each house has the final power to interpret the rules of
procedure of the house
 Both chairman & deputy chairman cannot preside over a sitting of the
house, when resolution of their removal is under consideration.
 However they can be present, can speak for themselves & take part in
proceedings of the house but without right to vote
Removal of Deputy Chairman
 If he resigns, or
 Ceases to be member of RS, or
 Can be removed by passing a resolution by majority, but such a resolution
can only be moved after giving 14 days advance notice to him

Bills in Parliament
Government member bill
Bill introduced by a minister of government, can be –

 Ordinary bill

 Money bill

 Financial bill

 Constitutional amendment bill

As it is moved by the the government itself, President does not interfere in introduction of the
bill as he is obligatory to advice of COM

Private member bill

 A bill introduced by a non-government member

 President can use his powers of absolute veto & can reject the bill , provided bill comes for tabling in
the house before presidential recommendation

 Every member can introduce a bill only for 4 times a year

Types of Bills
Ordinary Money Financial Constitutional amendment

Introduced in RS & LS LS LS RS & LS

 Gov. + Private Gov. member Gov. member
Introduced as member bill bill bill Gov. + Private member bill

Presidential
assent in intro Required Required Required Not Required

Provision for joint

sitting Applicable NA Applicable NA

Simple Simple Simple

majority (X > majority (X > majority (X Special Majority (X > 2/3 of
Passing Majority 50 %) 50 %) > 50 %) members present & voting)

Stages of bill
Introduction of the bill (1st reading of the bill)
 Provisions of proposed law + statement of objects & reasons

 If a private member wishes to introduce a bill, he must give one month prior notice of his intentions to
introduce the bill, seeking permission of the house to do so.

 Usually it is not opposed but if it is opposed, proposal is put to vote & if house is in favour of
introduction of bill, then it proceeds to next stage

 After the bill is introduced in house, it is published in Gazette of India

2nd Reading of the bill

 Principles of the bill are discussed thoroughly & members make speech about for or against the
principles of the bill

 Clause, schedules & amendment regarding bill are taken into consideration

 Bill can be referred to selection committee (Committee of the house) or can be referred to joint
committee (joint committee of both the houses)

 If the bill is referred to joint / selection committee, they shall give their report (unanimously or via
majority) within specified date (with amendments, if required)
 Reports & bill (as amended) are printed & made available to members of the house (Report stage of
the bill)

 Bill is then taken up for consideration clause by clause

 This is the stage where bill undergoes substantial changes & amended if found necessary

3rd Reading of the bill

 Final reading & more or less a formal affair

 Debate is confined to acceptance or rejection of the bill & submitted to vote of the house

 If accepted, it is passed to other house & same process follows.

 Other house has mainly 4 alternatives viz.

 May pass the bill without amendments

 May pass the bill with amendments → In this case, Bill is returned to originating house. If originating
house accepts the amended bill, it would deem to have been passed by both the houses. However, if
originating house does not agree with it, President may summon a joint meeting of both the houses to
resolve the disagreement & deadlock
 It may reject the bill altogether. President may summon joint sitting of both the houses to resolve the
deadlock

 May not take any action on the bill by keeping it lying on the table. After lapse of 6 months from the
date of reception of the bill, President may summon joint sitting of both the houses to resolve the
deadlock
Joint sitting of the Parliament
 Presided over by Speaker of Lok sabha, then in his absence, Deputy Speaker of LS, then in his
absence, Deputy Chairman of RS & even in his absence any member as agreed by both the houses

 Deadlock is resolved by total number of members of both the houses present & voting. Generally, will
of LS prevails due to its larger size

 After the passage of the bill, it is presented to the President for his assent
No provision of Joint sitting for Money bill & constitutional amendment bill

Presidential Assent
 If it is money bill or constitutional amendment bill he has to give his assent, but in case of any other
bill, he may return it to the parliament for reconsideration with his recommendations
 If bill is passed again, with or without amendments & sent to the President for the 2nd time, he has to
give his assents.
 After the assent of the President, Bill becomes an act

Money & Financial Bills

Bill of Appropriation
 A bill which empowers government to draw some amount from consolidated fund of India
Money Bill
 Decision of speaker is final weather a bill is money bill or not. His decision can not be challenged in
any court of law or any of the houses or by the President.

 Money bill can only be introduced in Lok sabha with recommendations of President

Provisions For money bill

 Imposition, abolition, remission, alteration or regulation of any tax

 Regulating & borrowing money from the government

 Money into or out of consolidated fund of India

 Any expenditure charged on consolidated fund of India or to increase amount of such expenditure

 Receipt or withdrawal of custody of public accounts of India or audit of account of union or state
Rajya Sabha on Money Bill
 Rajya Sabha can not amend or reject a money bill but only plays a recommendatory role in passing of
money bill.

 RS must return the money bill within 14 days to LS with or without any recommendations

 Weather LS accepts or does not except recommendations of RS, bill is deemed to have been passed by
both the houses

 Now bill is forwarded to President for his assent & he is bound to give his assent to the bill

Financial Bill
 Apart from the provisions of money bill, it includes other provisions as well & can be introduced in LS
only on the recommendations of President

 Since it include other matters also RS has equal say to amend or reject it by virtue of its powers

 President can also send the bill for reconsideration for once
 Budget, Funds, Expenditure & Grants in India
Budget (Annual Financial Statement)
 It is represented before Lok Sabha upon recommendation of the President & it is the duty
of President to lay it before both the houses of Parliament
 Presented by Finance minister on last working day of Feb month in parliament
 Presents an estimate of receipt & expenditure of GOI for the following financial year
 Gives proposal of taxation & other means to raise the receipts to meet the expenditure
 Contains actual receipts & expenditure of previous year with detailed review of financial
position of said period

 After its introduction, Lok Sabha discusses the demands for grant (i.e. proposed expenditure) of
various ministries & departments, one by one. All such expenditures are charged from consolidated
fund of India & presented in form of single bill called appropriation bill.

 Proposal for taxation to raise revenue is presented in form of financial bill

Types of funds in India

Consolidated fund of India
 A fund to which all revenues received, loans raised & income received by GOI are
deposited
 All legally authorized payments on the behalf of GOI are made out of this fund
 No money can be spent out of this fund except through grants made by parliament
 Public accounts of India
 All other public money except the one credited to consolidated fund shall be credited to
Public accounts of India
 Bank savings account of the departments/ministries (for day to day transactions)
 National Investment fund – NIF (Money earned from disinvestment)
 National Calamity & contingency fund (NCCF) (Under Home ministry) → Merged with
NDRF
 National small savings fund, defense fund, provident fund, Postal insurance etc.
 All Cess & Specific purpose surcharges
 Government schemes Fund (Eg. MNREGA)
 No need of Parliament’s approval
Contingency fund of India
 Created in 1950, with a limit of merely 50 cr, raised to 500 cr in 2005, at the disposal of
the President to meet unforeseen expenditures – Operated by Finance secretary
 Contingency fund is used by the President where parliament’s approval cannot be
obtained owing to time factor
 However, sanction of parliament is necessary to replenish this fund from consolidated
fund of India
 States have their own consolidated & contingency funds

Expenditures & Grants

Charged Expenditures
Expenditures that do not require approval of parliament to be spent out of consolidated fund
of India. These expenditures are sanctioned by constitution itself:
 Emoluments, allowances & expenditure of President & his office
 Salary & allowances of chairman / Deputy chairman of RS + Speaker / Deputy speaker of
Lok Sabha
 Debt charged for which GOI is liable
 Salaries, allowances & pensions of SC judges & CAG

Vote on account
 Power of Lok Sabha (not of Rajya sabha) to authorize various ministries to incur
expenditures for a part of financial year, pending the passage of appropriation bill by the
parliament

Vote of Credit
 Granted for meeting an unexpected demand upon the resources of India, when on account
of magnitude, the demand could not be stated with details ordinarily given in the budget

Supplementary Grant
 Granted when the amount authorized by parliament through the appropriation act for a
particular service for current financial year is found to be insufficient

Additional Grant
 Granted when a need has arisen during current financial year for additional expenditure
for some new service, not contemplated in budget for that year
 Excess Grant
 Granted when money has been spent on any service during a financial year in excess of
amount granted for that service in the budget for that year.
 It is voted by Lok sabha after the financial year

Working Procedure of Parliament

Sessions of Parliament
 President summons each house of the parliament at such intervals that there should be not
more than 6 months of gap b/w 2 sessions of the parliament, Hence the parliament must
meet atleast twice a year.
 Powers to dissolution or prorogation are exercised by the President but power of
adjournment belongs to respective presiding officer. Time between prorogation & Re-
assembly is called Recess.

Budget Session Feb – May Longest

Monsoon Session July – August

Winter Session Nov – Dec Shortest

Special session Convened by President on request of COMs

 If LS is not in session, not less than 1/10th of the members, on prior notice of 14 days, can
write to President for revoking national emergency

Private member’s business

 Every member who is not a minister is called a private member.
 Private member’s business include private member’s bill & resolutions
 Period of notice for introduction of bill is one month, unless presiding officer allows
introduction at shorter notice
 Period of notice for resolution is 2 days.
Question hour (11AM – 12)
 1st hour of business
 Keep Ministers accountable for gov. & keep them on toes
Starred questions
 Starred questions are one of whom a member desires an oral answer.

 Answer to such question may be followed by 5 supplementary questions by other members

Unstarred questions
 Unstarred questions are one of whom written answer is desired by the member.

 No supplementary questions can be asked thereon

 Requires a time period of 10 days

Short notice questions

 Relates to matter of urgent public importance

 Can be asked by members with notice shorter than 10 days as prescribed for an ordinary question.

 It is for the speaker to decide whether matter is of real public importance or not.

 Member requires to state reasons for asking such questions while serving the notice
Zero Hour (12 – 1 PM)
 Not recognized under the rules & procedures of house of the parliament.
 A member raise any issue of public importance on very short notice or without notice at
all
Motions in Parliament
 Basically a proposal brought before the house for expressing the opinion to the house.
 Every question put in the house must, therefore, be proposed by a member as a motion.
 Hence, motions are basically parliamentary proceedings

Resolutions in Parliament
 Procedural device available to members & ministers to raise a discussion in the house on
matter of general public interest.
 A resolution is infact a substantive motion but unlike motions, resolution forms have been
provided with the rules concerning both the houses.
 If resolution is passed in form of statute / law, it has the binding effect. But, if it is passed
as an expression of opinion, it has only persuasive effect.
 Hence, resolution is a particular type of motion, required to be voted upon, unlike as in
case of motion.

Types of Motions in Parliament

Privilege Motion
 Moved by a member, if in his opinion, any minister/ any member commits a breach of
privilege of the house by withholding any fact or by giving distorted version of facts
Adjournment Motion (only in LS)
 Setting aside normal business of the house for discussing a matter of urgent public
importance

Calling attention motion (Only in LS)

 A member with prior permission of the speaker, calls the attention of ministries on matter
of urgent public importance
 He may make a brief statement or ask for the time to make a statement at later hour or date
(Indian innvotaion)
Censure Motion (Only in LS)
 This motion is moved by opposition parties against whole COMs or against any individual
minister for failure to act / seeking disapproval of their policy
 Speaker has to decide its order & fix a date for discussion of this motion & if it is passed
in LS, Gov. need not to resign, but COM is bound to seek confidence of LS as early as
possible
 If a money bill or vote of thanks to President (in joint session of parliament) is defeated, it
also amounts to censure of the government policy & gov. needs to seek confidence of LS
as early as possible

No confidence Motion (Only in LS)

 COMs remain in office as long as it enjoys majority support or confidence of LS
 Once, it loses the confidence of the house, it is bound to resign with immediate effect
 Moved against only COMs, not against any individual member (unlike censure motion)
 Further unlike censure motion, no date is fixed or any time allotted to COMs as this
motion takes precedence over all pending businesses of the house

Confidence Motion (Only in LS)

 Came in to existence under Indian parliamentary practice mainly due to formation of
coalition governments.
 Process is similar to no confidence motion except it is moved by the gov. itself to prove &
ensure confidence of LS
 If this motion is defeated, COMs is bound to resign

Cut Motions (Only in LS)

Cut motions are basically part of budgetary process which seeks to reduce the amount for grants

Implies that mover disapproves of the policy underlying the demand – “the
Policy Cut amount of demand to be reduced by Rs. 1

Economy When demand or policy affects economy in expenditure – “the amount of demand
Cut to be reduced by Rs …”

Seeks the “Demand to be cut by Rs. 100” to voice a particular grievance against
Token Cut the government

Whips in Parliament
 Directives issued by chief functionary of a political party in parliament to ensure support
of its members, voting in favour or against a particular issue on the floor of the house.
 A person may loose membership of the party & the legislature if he votes against the
whips or abstain from voting

Speaker Protem
 Usually senior most member in terms of years one has served & then age.
 As soon as new LS is constituted, President appoints a speaker protem to administer the
oath of newly elected LS members & to preside over election of next speaker
 Ceases to be speaker as soon as new speaker is elected

Commonly Used Terms in Parliament

Takes place due to rigging, booth capturing, countermanding or
Re – Election employing any other unfair means during elections
 When seat is rendered vacant (Due to death, resignation or any other
Bye Election subsequent disqualification of member originally elected)

If LS or state assembly is dissolved well before the expiry of its full term
Midterm election then the elections are held to constitute new house

Leader of Leader of largest opposition party in LS having at least 1/10th of the

Opposition strength of the house

Refers to last session of old parliament, held after a new LS has been
elected as a result of general elections. Lame ducks under it are those
members who were part of old house but could not get re-elected for the
Lame Duck Session new house

Parliamentary device of long winded speeches, not necessarily relevant to

Filibuster delay a matter under consideration for voting (Not practised in India)

Refers to a vote taken unexpectedly without voters being briefed or

Snap Vote informed about it in advance

Reorganisation of electoral districts by political party in power in attempt

Gerry Mandering to gain advantage in upcoming elections

After a general election, when no political party or combination of parties

Hung Parliament is in position to form a government by majority

When due to lack of time, demand of grants are put to vote whether they
Guillotine are discussed or not in the house on last working day of allotted time

Minimum required number of members present to validly transacts the

business of the house (1/10th of total members of the house including
Quorum presiding officer)
 A process, which when raised has effect of suspending the proceedings
Point of order before the house & member who is on his legs gives away

Breach of privileges & contempt of parliament

 When any individual or authority disregards any of the privileges & immunities, either of
the member or of the house, the offence is called breach of privileges.
 Any act which impedes either the house or performance of official function of the house
or of any of its member, is called contempt of parliament
Delegated / Subordinate legislation
 MPs / MLAs make laws only in broad skeletal form, Executives fill up the minor details
 When legislatures outsource the law making work to the executives, then it is known as
delegated / subordinate legislation
 Committee on subordinate legislation examine the rules & regulations made by the
executives & submit its report to the house
 Hence parliament continues to keep its control over delegation

Section 4 → State legislature, State Executives, Supreme Court & High

Court

The State Executive – Governor, COM & Advocate General

Governor → Executive Head of States
 Acts on advice of COM
 Same person can be appointed as Governor of one or more state
 All executive actions of state are taken in his name
 Acts as a link b/w center & state & it’s his duty to send reports to the President of the
affairs of the state fortnightly
 Dual responsibility → head of the states + representatives of center in state
Appointment of Governor
 Appointed by President for 5 years but can be removed before his office terms, by the
President on advice of PM
 Even can be transferred from one state to other by President on advice of PM
 Rajasthan high court held that CJ of HC can be appointed as an acting governor in place of
vacancy in governor’s office due to death, resignation etc.
Qualifications
 Must be citizen of India & of 35 years of age
 Must not be member of any house of Parliament or of state legislature
 Must not hold any office of profit

Oath
 Before CJ of HC or in his absence, before senior most judge available

Salary
 1, 10,000 + Rent free official accommodation + other allowances
 From consolidated fund of state
Immunities to Governor
 Shall not be answerable to any court for exercise & performance of powers & duties of his
office
 No criminal proceedings can be instituted or continued in any court during his terms of
office
 No process for arrest or imprisonment of governor from any court during his terms of
office
 Civil proceedings against him, in which relief is claimed, can be instituted giving 2
months prior notice

Sarkaria Commission report on office of Governor (Recommendations

only)
 A politician belonging to ruling party at the center should not be appointed as governor of
state being run by some other party
 Must be appointed after consultation with state concerned
 Must be a detached figure from state politics & must retain power to refer any bill to
center for assent

Powers & functions of Governor

Executive Powers of governor
 All executive powers of the state are vested in governor & all executive actions of state
government are taken in his name
 Executive powers of governor extend to all matters on which state legislature can make
laws
 In case of concurrent list executive powers of governor are subjected to executive powers
of the President
 Make rules for convenient transaction of business of government & for its allocation
among ministers
 to 94th amendment, In Jharkhand, MP, Chhattisgarh & Orissa, it is special responsibility of
the governor to see that a minister is placed incharge of tribal welfare
 In Assam, he is given certain special powers with respect to administration of tribal areas
 Appoints CM (Leader of majority party in legislative assembly) & on his advice COMs
 Appoints the Advocate General, Chairman and members of the respective State Public
Commission; Although the later cannot be removed by him but the President on report of
SC in case of certain disqualifications
 Appoint members of state election commission & state finance commission
 Acts as chancellor of state universities
 CM to communicate all decisions of COM, related to administration of state & to all the
proposal for legislation, to governor
 Informs President, along with his recommendations, regarding break down of
constitutional machinery & imposition of Presidential rule in state

Legislative Powers of governor

 Power to nominate 1 member to lower house (Legislative assembly) from Anglo Indian
community & 1/6th of total number of members to upper house (Legislative council)
 Summons state legislature, prorogue either house & can dissolve legislative assembly
 No bill can become a law until the Governor signs it
 Can dissolve the State Assembly before the expiry of its term on the advice of the Chief
Minister or as directed by the President.
 Causes the annual Budget to be presented in Vidhan Sabha (Legislative assembly)
 No money bill / ordinary bill / financial bill can be introduced in the Assembly without his
prior approval.
 May give his assent or withhold his assent to a bill / Can withhold a bill and send it to the
President for consideration / may return to legislature (one time only) except money bill
Ordinance making powers of governor
 Can issue ordinances when one or both the houses of state legislature are not in session &
when he is satisfied that certain actions are needed to be taken immediately
 However, he is prohibited from promulgating ordinances that contains provisions, which
under the constitution requires previous sanction of the President. In such cases, he can
make ordinances taking prior permission of President
 An ordinance issued by governor ceases to be in operation 6 weeks after the re-assembly
of the legislature unless approved earlier
Financial Powers of governor
 No money bill / ordinary bill / financial bill can be introduced in the Assembly without his
prior approval.
 No demand for grant can be made in legislative assembly except on his recommendations
 To introduce annual budget in state legislature showing estimated revenue & expenditure
of state for that year
 Can make advances out of contingency fund of state in case of unforeseen expenditure

Judicial Powers of governor

 Has the power to grant pardon, reprieve, respite or remission of punishment or to
commute sentences in certain cases, subjected to the laws of state legislature
 Does not has the power to grant pardon in cases of death sentence – But can commute or
respite it

Emergency Powers
 Power to make report to the President whenever he is satisfied that a situation has arisen in
which government of the state can not be carried on in accordance with the provisions of
the constitution, thereby, inviting President to assume to himself function of gov. of the
state
 When the Presidential rule is applied to state, governor becomes the agent of Union
government in the state & take reins of administration directly in his own hands & runs
the state with the aid of civil services on instructions received by President

Other Powers
 On advice of election commission, he may decide a matter relating to disqualification of a
member of legislature, if his election is challenged through a petition by some voters of
the state
 Annual reports of various bodies like state PSC, CAG, State finance commission etc. are
submitted to governor that he causes to be laid before legislature for consideration

Bill Reserved by Governor for Presidential Assent

When a Bill is reserved by a Governor, under the Article 201, for the consideration of the
President, the President shall declare either that he assents to the Bill or that he withholds
assent there from –
 Provided that, where the Bill is not a Money Bill, the President may direct the Governor to
return the Bill to the House or, as the case may be, the Houses of the Legislature of the
State together and, when a Bill is so returned, the House or Houses shall reconsider it
accordingly within a period of six months from the date of receipt of such message and, if
it is again passed by the House or Houses with or without amendment, it shall be
presented again to the President for his consideration.
 When the bill is again presented to the President for the assent, the president is not bound
to give his assent to the Bill. This means that the state legislature cannot override the veto
power of the President.

The Constitution has also not prescribed any time limit within which the President has to
take decision with regard to a bill reserved by the governor for his consideration. Hence, the
President can exercise pocket veto in respect of state legislation also.

Council Of Ministers
 COMs with CM at its apex aid & advice the governor in exercise of his functions
 Governor is bound to follow advice of COMs except in cases where he can use his
discretionary powers
 COMs is collectively responsible to legislative assembly of the state
 Any person can be appointed as the minister but ceases to be one, if he is not elected as a
member of the state legislature within 6 months after his appointment as a minister

Whereas the constitution does not provide much discretionary powers to President, it
empowers the governor to exercise some functions in his discretion & while exercising his
discretionary powers, Governor need not seek or act according to advice rendered by COMs
 Discretionary Powers of the Governor
 Governor of Assam determines the amount payable by the state to district council as
royalty, accruing from the license for minerals
 Governor of a state as administrator of an adjoining UT can exercise his functions as
administrator independent of his COMs in said UT
 In some cases, Governor is enthrusted with special responsibilities, where he seeks the
advice of his COMs, but is not bound to follow them :

 President may direct that governor of Maharashtra or Gujrat have special responsibility for taking
steps for the development of certain areas in the state such as vidarbha, Saurashtra

 Governor of Nagaland shall have the responsibility with respect to law & order in state mainly due to
internal disturbances caused by hostile Nagas

 Governor of Manipur shall have special responsibility to secure proper functioning of committee of
legislative assembly consisting of members elected from hill areas of state

 Responsibility of governor of Sikkim for peace + social and economic advancement (Equitable
arrangement) of different sections of population of Sikkim

 Governor sends report to the President that the gov. of state can not be carried on, in accordance with
the constitution. He makes such report purely on his discretion, not on advice of COMs

 In matters relating to reservation of bill for consideration of President, Governor may act
on his own
 Appointment of CM, if no political party has a clear cut majority or does not have an
acknowledged leader
 Dismissal of ministry, when it refuses to resign after losing majority support in house via
no confidence motion
 Dissolution of legislative assembly on advice of COM who has lost majority support in
house

“However, Governor shall be bound to use his discretionary powers as a direction of the President”

Advocate General of State

 1 law officer of the state
st

 Appointed by the Governor

 A person qualified to be appointed as judge of HC can only be appointed as advocate
general
Duties & Functions
 Has right to participate in proceedings of the house or houses of state legislature without
right to vote
 Right to audience in any state court
 Gives advice to state government upon legal matters
 Enjoys all legislative privileges available to members of legislature

State Legislature – Governor, Legislative Assembly, Legislative

Council
Legislative Council → Only for 7 states
 Karnataka
 Uttar Pradesh
 Maharashtra
 Bihar
 J&K
 Andhra Pradesh
 Telangana

Legislative Councils (Vidhan Parishad)

 Power of abolition or creation of Legislative council lies with parliament
 If legislative assembly of state passes a resolution by a majority of total membership &
not less than 2/3rd of the members of the assembly present & voting, Parliament may or
may not approve the resolution with simple majority
 A resolution passed by legislative assembly of state for creation or abolition of its council
is not binding on parliament
Composition of Legislative council
Elected by electorates consisting of members of municipalities, District boards & other
1/3 rd
local authorities in state
 Elected by members of legislative assembly of state from amongst persons who are not
1/3 rd
member of assembly

Nominated by governor ( From fields of art, science, literature, social science &
1/6 th
cooperative movements)

1/12th Elected from graduates of 3 years, residing in that state

Elected by persons engaged in teaching for not less than 3 years in educational
1/12th institutions within the state, not lower than secondary school

 Strength → Not more than 1/3rd of legislative assembly, but can not be less than 40
(Except J & K – 36)
 Legislative council is a permanent body (term 6 years) & not subjected to dissolution
 After every 2 years, 1/3rd of its members retire, However, retiring members are subjected
to re-election & re-nomination

Legislative Assembly (Vidhan Sabha)

 Flexible membership from 60 – 500 members; however in Sikkim, Mizoram & Goa, they
are limited to a minimum of 40 members only
 Chosen directly by the people on the basis of adult franchise
 Seats are reserved for SCs & STs on the basis of their population
 1 member can be nominated by Governor from Anglo Indian community
 Duration → 5 years but may be dissolved earlier by the governor
 42nd amendment increased assembly official term to 6 years but 44th amendment restored it
to 5 years
 During proclamation of national emergency, life of assembly may be extended by an act
of parliament for a period of not more than 1 year at a time , but in no case beyond a
period of 6 months, after proclamation of national emergency has ceased to operate

Membership Qualification
 Must be citizen of India
 Must be of 25 years of age for Legislative Assembly & 30 years for Legislative Council
 Must not hold any office of profit
 Must not be of unsound mind

If a situation arises for disqualification of a member, Decision of Governor shall be final

(Governor must obtain opinion of election commission of India prior to action)
“All powers, provisions, sessions etc. is same as in case of Lok Sabha & Rajya Sabha at center”

Legislative Procedure in State Legislature

Unicameral type of government
 All bills originate in single chamber i.e. legislative assembly
 When passed are presented to governor for his assent
Bicameral type of government
 If legislative assembly rejects a bill, originated in Legislative council, then it is the end of
the bill
 Procedure of money bill is same as in parliament
 In case of Financial or ordinary bill, if it is passed by legislative assembly, It is sent to
legislative council, where if it

 Reject the bill

 Suggest amendment to the bill not acceptable to legislative assembly

 Does not act upon the bill for 3 months

 Then it is referred back to legislative assembly, If legislative assembly passes the bill for
the 2nd time, it is retransmitted legislative council, where

 At the expiry of 1 month period

 Bill rejected outright

 Bill passed with amendments not acceptable to legislative assembly

 Then, bill is deemed to have been passed by both the houses & sent to governor for his
assent

There is no provision of joint sitting of state legislature to remove a deadlock, as upper house
does not enjoy equal powers with lower house & can not amend a bill on its own
“Privileges, Immunities, Committees etc. are same as Parliament”

Supreme Court – India

 Independent Judiciary → Sine – Qua – Non of Democracy (Absolutely needed)
 Exist to see that laws made by legislature are intra vires (with the constitution)
 At the apex lie SC → Custodian & interpreter of constitution
 Originally 1 CJ & 7 judges, but At present 1 CJ & 30 Judges

Appointment & Transfer of Judges – By National Judicial Appointments

Commission
Composition of the NJAC – 6 members
 Chief Justice of India (Chairperson, ex officio)

 Two other senior judges of the Supreme Court next to the Chief Justice of India – ex
officio
 The Union Minister of Law and Justice, ex-officio
 Two eminent persons (one of which would be from the SC or ST or OBC or Minority
communities or a woman ), for 3 yrs, not eligible for re-nomination, to be nominated by a
committee consisting of :
 Chief Justice of India

 Prime Minister of India

 Leader of opposition in the Lok Sabha ( where there is no such Leader of Opposition, then, the Leader
of single largest Opposition Party in Lok Sabha)
Functions of the Commission
 Recommending persons to president for appointment as
 Chief Justice of India,

 Judges of the Supreme Court,

 Chief Justices of High Courts and other Judges of High Courts.

 Recommending transfer of Chief Justices and other Judges of High Courts from one High
Court to any other High Court
 Ensuring that the persons recommended are of ability and integrity

Eligibility Criteria of Supreme Court Judges

 Citizen of India
 Judge of HC for atleast 5 years in succession / advocate of HC for atleast 10 years in
succession
 A distinguish jurist in opinion of President (a highly qualified academia / law professor)

Tenure of Supreme Court Judges

 65 years for Supreme Court Judge
 3 years more than that of High court Judge

Salary of Supreme Court Judges

 Chief Justice →1 lakh
 Other Judges → 90,000
 From consolidated fund of India

Removal of Supreme Court Judges

By order of President, after an address in each house of parliament, supported by a majority
of total membership of the house & passed by a resolution supported by not less than 2/3rd of
the members present & voting.
Lok Sabha A motion can be preferred before the house if signed by 100 members

Rajya Sabha A motion can be preferred before the house if signed by 50 members

 Only on grounds of proven misbehavior or incapacity

 Only after giving 14 days prior notice to said Judge against whom the motion is passed
 A 3 persons judicial committee is formed headed by serving judge of SC + 2 others from
(SC or HC or eminent jurists)
 Report of same must be passed by both the houses & President
Acting CJ & Ad Hoc Judges
Appointment of Acting CJ → By President if CJ is ill or incapable to serve
Appointment of Ad-hoc Judges
 IF there is lack of quorum of Judges of SC to hold or continue any session in court, CJ of
India with previous consent of President & after consultation with CJ of HC concerned,
request in writing the attendance of judges to sit in SC as ad-hoc judges for certain period
(Judges shall be qualified to be judges of SC)
 Retired judges of SC can sit in SC as adhoc Judges on request of CJ after consent of
President, provided they fulfill the criteria of SC
Note
 Criminal proceedings initiation against a judge of SC or HC requires CJs consent
 After retirement, a Judge of SC is prohibited from practising or acting as a judge in any
court

Jurisdiction & Powers of Supreme Court

Original Jurisdiction
 Original jurisdiction of SC is power to hear a case for the 1st time unlike Appellate
jurisdiction
 Purely federal in character i.e. have exclusive authority to decide any dispute involving a
question of law between:
 GOI (Union) v/s state or states

 GOI & any state / states on one side & state / states on the other

 Two or more states

 However, according to 7th amendment, 1956, original jurisdiction of SC does not extends
to disputes, arising out of provisions of a treaty, agreement etc. which was executed before
26th Jan 1950 & is in operation ever since
 As per article 71, all disputes regarding election of President & vice President are handled
by SC

Exclusion to original jurisdiction of states

 In disputes b/w center & state due to disputes arising out of provisions of a treaty,
agreement etc. which was executed before 26 Jan 1950 & is in operation ever since
th

 Parliament may by law exclude SC’s jurisdiction in disputes w.r.t use, distribution &
control of water in any interstate river

Writ Jurisdiction
 A type of original jurisdiction of Supreme court

 Jurisdiction of SC to enforce FRs → Every individual has a right to move to SC directly

by appropriate proceedings for the enforcement of his FR, without coming via HC, by
means of writs
Appellate Jurisdiction
 Constitutional Matters
 Appeal lies to SC if HC certifies that the case involves a substantial question of law as to
interpret the constitution
 If HC refuses to give certificate, SC may grant a special leave for appeal if it is satisfied
that case does involve such question
Civil Matters
 An appeal lies to SC from any any judgement in civil proceeding of HC if it certifies :
 that the case involves a substantial question of law of general importance

 that in opinion of HC, the said question needs to be decided by SC

 Thus, No appeal in case of civil matters lies to SC as a matter of right as it lies only when
HC issues a certificate on above 2 conditions
Criminal Matters
 Constitution provides the following provisions as to appeal in criminal matters:
 If HC has sentenced someone to death

 If HC has withdrawn for trial before itself a case from the lower court & in such trial, lower court has
sentenced the accused to death

 If HC certifies that the case is fit for appeal to SC, even if HC on appeal has reversed an order of
acquittal of accused & sentenced him to death or life imprisonment or for period not less than 10 years

Note → Appellate Jurisdiction is not Applicable in cases of Court Martial

Advisory Jurisdiction (Only consultative Role)
 President can refer to court either on a question of law or on a question of fact provided it
is of public importance. However, it is not compulsory for court to give its advice.
 Further, President is empowered to refer to SC for its opinion regarding disputes, arising
out of provisions of a treaty, agreement etc. which was executed before 26th Jan 1950 & is
in operation ever since. In such case, it is obligatory for the court to give its opinion to
President
“In both of above cases, opinion expresses by SC is only advisory in nature & not binding on
President”

Revisory Jurisdiction
 Empowered to review any judgment or order made by it with a view to remove any
mistake or error that might have crept in judgment
 Even though, judgment have been passed by SC has a binding effect on all the courts of
India, but not on SC itself.
Supreme Court as Court of Record
 Records & judicial proceedings are of evidentiary value before any court
 Has power to determine its own jurisdiction

Contempt of court
 “Supreme Court has power to punish its own contempt”
 Civil → Willful disobedience to any judge or other processes of the court
 Criminal → Publication of any matter or doing any act whatsoever which scandalizes or
tend to scandalize authority of the court or tend to interfere course of any judicial
proceedings

Curative Petition
 A review petition may be filed in SC after delivery of its judgment; Court may review the
case under its inherent power but on very restricted grounds
 The petition 1st has to circulated to a bench of 3 senior most judges & judges who passed
the judgment complained of

Others Powers of SC
 Make rules regarding procedure & practice of court
 Can recommend removal of members of UPSC to the President
 Power to review the laws passed by the legislature & orders issued by executives & to
declare them ultra vires if they contravene any of the provisions of the constitution
 It must be noted that SC can not pronounce upon the constitutionality of any law or
executive’s action on its own. It can only pronounce judgment, when said law or executive
action is actually challenged by someone
 The ultimate authority to interpret the constitution also rest with SC , which has been
described as mouth piece of Indian constitution

Writs in Indian Constitution

The Indian Constitution empowers the Supreme Court and High Courts to issue writs for
enforcement of any of the fundamental rights conferred by Part III of Indian Constitution
The writ issued by Supreme Court and High Court differs mainly in
three aspects:
 The Supreme Court can issue writs only for the enforcement of fundamental rights
whereas a High Court can issue writs for enforcement of fundamental rights along with “
for any other purpose” (refers to the enforcement of any legal right).
 SC can issue writ against a person or government throughout the territory whereas High
Court can issue writs against a person residing or against a government located within its
territorial jurisdiction or outside its jurisdiction only if the cause of action arises within the
territorial jurisdiction.
 SC writs are under Article 32 which in itself is a fundamental right thus SC cannot refuse
to exercise its writ jurisdiction. Whereas article 226 is discretionary thus HC can refuse to
exercise its writ jurisdiction.

Habeus Corpus
 Habeas corpus is a Latin term which literally means “You may have the body”
 This writ can be issued against any person, Private or official
 An order calling upon the person who has unlawfully detained another person to produce
the later before the court to ascertain, whether the detention is legal or not
 It is not essential to produce the detained person physically but what is important for the
court is to obtain the knowledge or reason for detention
 If the detention is found to be unlawful, court can set free the detained person
Mandamus
 The Latin word ‘mandamus’ means ‘we command’.
 The writ of ‘mandamus’ is an order of the High Court or the Supreme Court commanding
a person or a body to do its duty.
 Mandamus writ is used to command authority against both judicial & administrative, but
entrusted only with public duty
 A writ of mandamus can be granted only in cases where a statuary duty imposed on an
officer concerned results in failure on the part of officer or public authority to discharge
the statuary obligation
 It is basically an order of superior court commanding a public officer or authority to do or
not do something concerned with public duty
 Aggrieved party have legal right to enforce its performance by issuing a writ of mandamus
 Private rights or duty can not be enforced by it i.e. duty assigned by the law not by private
individual or private organization

Prohibition
 The Writ of prohibition means to forbid or to stop and it is popularly known as ‘Stay
Order’.
 Writ of Prohibition is used against judicial & Quasi-Judicial authorities to command
inactivity to certain judgment
 Sole purpose of this writ is to prevent inferior courts from usurping a jurisdiction with
which they are not legally vested >> Can be issued in excess or absence of jurisdiction
 Issued by superior court to inferior court or tribunal to prevent it from exceeding its
jurisdiction & compel it to be within its limits of jurisdiction
Certiorari
 Literally, Certiorari means to be certified.
 It is issued by the higher court to the lower court either to transfer the case pending with
the latter to itself or to squash the order already passed by an inferior court, tribunal or
quasi judicial authority.

Difference between Writ of Prohibition & Certiorari

 A writ of prohibition is used to prevent an inferior court or tribunal to proceed the trial in
excess of its jurisdiction whereas a writ certiorari is issued to quash the order of an inferior
court or tribunal in excess of jurisdiction
 A writ of prohibition is used before the order is passed by the court whereas a writ of
certiorari is used to nullify an order already passed by the court
 Prohibition can be issued only against judicial and quasi-judicial authorities whereas
Certiorari can be issued even against administrative authorities affecting rights of
individuals.
Quo Warranto
 The word Quo-Warranto literally means “by what warrants?” or “what is your authority”?
 It is a writ issued with a view to restrain a person from holding a public office to which he
is not entitled.
 The writ requires the concerned person to explain to the Court by what authority he holds
the office.
 If a person has usurped a public office, the Court may direct him not to carry out any
activities in the office or may announce the office to be vacant.
 Thus High Court may issue a writ of quo-warranto if a person holds an office beyond his
retirement age.
Judicial Activism & Doctrines associated with Supreme Court
Judicial Activism
 Judiciary plays an assertive role to force the other organs of the state to discharge their
constitutional duties towards public
 Judicial activism basically has been forced upon the judiciary by insensitive &
unresponsive administration that disregards the interest of the people, to ensure that
administration of country does not suffer because of the negligence on the part of
executive & the legislature
 Concept of Judicial activism emerged when SC started playing assertive role by giving
some landmark judgments & issued some stern directives to legislature & executives
concerned
 Phenomenon of judicial activism is welcome step only in short run & if it is carried out for
long, it may destroy the very essence of separation of powers , with the judiciary assuming
greater powers compared to legislature & executive in the absence of proper checks &
balance mechanism

Judicial Review
 Both Supreme Court & High Court enjoys the power of judicial review in India
 Based on the concept of supremacy of the constitution
 For any law or executive order to be valid, it must confirm to the provisions of the
constitution
Procedure established by law (India) v/s Due process of Law (US)
Procedure established by law
 The court examines a law only from the point of view of legislature’s competence

 Court sees that the prescribed procedure has been followed by the executive
 Court examines only procedural aspect not the motive behind the law or reason behind it,
hence can not pronounce it unconstitutional unless the law is passed without the
authorities competence

Due process of Law

 Court can examine the law, not only from the point of view of legislature’s competence,
but also from the aspect of motive behind the law
 Though constitution of India follows procedure established by the law, but in case of
Maneka gandhi case, SC interpreted article 21 to include the expression of due process of
law in it

Hence, article 21 protects an individual both against the legislature & executives action.
However, it does not mean that due process of law has come in form under judicial review of
India

Prominent Doctrines associated with Supreme Court

Doctrine of Severability
 While interpreting an impugned law, court has to see whether the law as a whole or some
part of it is unconstitutional.
 Court can declare impugned law as a whole or some part of it unconstitutional as the case
may be

Doctrine of Progressive Interpretation

 Court interpret the provisions of the constitution in the light of social, economic & legal
conditions prevailing at that point of time

Doctrine of Prospective Overruling

 Judicial invalidation or new view of interpretation of law will not affect the past
transactions or vested rights, but will be effective with regards to future transactions only

Doctrine of Empirical Adjudication

 While exercising the power of judicial review, courts are not supposed to deal with
hypothetical cases; therefore it is essential that the matter bought before the court must be
of concrete nature.
 Court seeks to confine its decisions, as far as possible; within the narrow limits of
controversy b/w the parties concerned in particular case

Presumption in favor of Constitutionality

 Whenever the constitutional validity of a law is challenged, court will not hold it ultra
vires until the invalidity is clear from all doubts which means there is always presumption
by the court, in favour of law’s validity
 However, despite the extensive power of judicial review enjoyed by SC & HC, scope of
judicial review in India is limited, as while interpreting a law, SC will not self-legislate
 SC is not supposed to question the reasonableness of any law except where the
constitution has expressly authorised the court to exercise its power.

High Courts – India

Indian High court act, 1861
 High courts established at Calcutta, Bombay & Madras
 Constitution states that there shall be HC in every state, but, parliament has the power to
establish a common HC for 2 or more states (At present 24 HC for 29 states & 7 UTs)
 Strength of HC is flexible (Unlike SC – which can be increased by parliament)
 President may from time to time appoint judges of HC, keeping in view amount of work
before HC

Appointment of High Court Judges

 Initiation of proposal for appointment of judges of HC must invariably be made by CJ of
that HC
 Appointment is made with respect to recommendations of NJAC
Composition of the NJAC – 6 members
 Chief Justice of India (Chairperson, ex officio)
 Two other senior judges of the Supreme Court next to the Chief Justice of India – ex
officio
 The Union Minister of Law and Justice, ex-officio
 Two eminent persons (one of which would be from the SC or ST or OBC or Minority
communities or a woman ), for 3 yrs, not eligible for re-nomination, to be nominated by a
committee consisting of :
 Chief Justice of India

 Prime Minister of India

 Leader of opposition in the Lok Sabha ( where there is no such Leader of Opposition, then, the Leader
of single largest Opposition Party in Lok Sabha)
Functions of the Commission
 Recommending persons to president for appointment as
 Chief Justice of India,

 Judges of the Supreme Court,

 Chief Justices of High Courts and other Judges of High Courts.

 Recommending transfer of Chief Justices and other Judges of High Courts from one High
Court to any other High Court
 Ensuring that the persons recommended are of ability and integrity

Appointment of Acting CJ, Additional Judges & Ad Hoc Judges – High

Court
Appointment of acting CJ By President if CJ is ill or incapable to serve

Duly qualified persons as additional judges , for a period of not

Appointment of additional extending 2 years (when President thinks that there is
judges temporary increase in business of HC)

CJ of HC with prior permission to President may request retired

Ad hoc judges HC judges to sit & act as a judge of HC for a temporary period

Tenure of High Court Judges

 62 Years
 Any dispute regarding the age of judge of HC is decided by President in consultation with
CJ of India

Removal of High Court Judges

 HC judge can resign by writing to President; or
 By same removal process as in case of SC judges

Salary of High Court Judges

 CJ → 90,000
 Others → 80,000
 From consolidated fund of State

Oath → before Governor (Unlike before President as in case of Supreme Court)

Qualification for High Court Judges
 Must be citizen of India
 Must have held a judicial office in territory of India for atleast 10 years or
 Must have been an advocate of HC in succession for 10 years

After retirement a judge of HC can not plead in a court or before any authority in India
except in SC or HC other than in which he held office

Jurisdiction of High Court

Original Jurisdiction
 In civil cases with amount > 2000
 In criminal cases, authorised to them by President Magistrates

Appellate Jurisdiction
 All HCs entertain appeals in civil & criminal cases from their subordinate courts.
 They have, however, no jurisdiction over tribunals established by the law relating to
armed forces of the country

Writ Jurisdiction
 Jurisdiction to issue writs under HC is larger than the SC.
 SC can issue them only where a FR has been infringed whereas a HC can issue them, not
only in such cases but also where an ordinary legal right has been infringed

Administrative & supervisory Functions of HC

 HC supervise & controls the working of courts subordinate to them
 Frame rules & regulations for transactions of their business
 For ex. Transfers, Postings, Promotions etc.
 Not applicable in case of tribunals dealing with armed forces
 “HC acts as court of records & has power to punish its own contempt”
Public interest litigation (PIL) – Appellate Jurisdiction
 Right to entertain PIL cases lies with Supreme Court and High Court only.
 A tool of judiciary to enforce legal & constitutional obligations towards executives &
legislatures in interest of public at large
 Basic aim of PIL is to render justice & help in promotion of well-being of public interest
(not of individual’s interest → In individual’s case , writ petition for FR)
 Usually, relief provided by court is in form of directions or order of state including
compensation to affected parties

A PIL may also be introduced in a court of law by the court itself (suo motu), rather than the
aggrieved party or another third party. It is a result of judicial activism, not mentioned in
constitution or any law enacted by Parliament.

State Judiciary
 High Court
 System of subordinate courts, with HC at apex

Subordinate Courts → District Courts

Civil cases → District Judges Criminal cases → Session Judges

Appointed by Governor in consultation with CJ of HC

Lok Adalat (People’s court)

 Legal services authority act, 1987 gave Statuary status to Lok Adalats
 Alternative dispute resolution system developed in India – Works under NALSA
 To provide speedy & economic justice to weaker sections of the society
 Focus in Lok adalat is on compromise, When no comprise is reached, matter goes back to
the court
 No advocate, No witnesses examined, No court fee is levied.
 Resolves cases which have not yet gone to courts or are pending in courts
 Established at Central, state & district level → have their own funds

Revenue courts
 Land Revenue → Important source of income for government
 Since India is an agrarian country, therefore disputes relating to land revenue are quite
common.
 Each district has separate courts for its land revenue system
 Every dispute relating to land revenue 1st comes before Tehsildar
 An appeal against decision of Tehsildar court lies in court of Deputy commissioner
/Collector (DM)
 An appeal against the decision of DM can be made in court of commissioner / Magistrate
 Further appeal can be made in Board of revenue, which forms highest court of land in
revenue matters

Full faith & Credit

 Final judgment or orders delivered by civil courts in any part of the territory of India shall
be capable of execution anywhere in India
 Clause only applicable to civil courts not on criminal courts

Section 5 → Special Provisions States + Union Territories + Schedule &

Tribal Areas + Local Governments

Special Status of J & K

 J & K has truly federal relation with the union.
 J & K got independence on 15th Aug, 1947 along with India, but daunted with the
problems of forced annexation with Pakistan, it signed the Instrument of Accession with
India & became a part of it
 Instrument of Accession → Signed b/w Nehru & Maharaja Hari singh on 26th Oct, 1947
 Under this, India acquired jurisdiction over the state wrt subject of Defence, External
affairs & communication
 People of J & K elected a sovereign constituent assembly which met for the 1st time on Oct
31, 1951

Article 1 states J & K is a constituent state of Indian union, however Article 370 grants a special status to
J & K on the basis of agreement concluded at time of J & K accession to Indian union:
 J & K has its own constitution apart from Indian constitution (Framed on 17th Nov 1956 &
came in force on 26 Jan 1957)
 Parliament can not make laws with regards to J & K on subjects stated in state list
 Residuary powers lies with legislature of J & K
 Follows dual citizenship, only citizens of J & K can take part in elections to state
assembly
 Only citizens of J & K can acquire, own & dispose of immovable property in J & K
 Only national emergency proclaimed on the grounds of war & external aggression shall
have automatic extension to J & K.
 National emergency proclaimed on the grounds of internal armed rebellion shall not be
automatically extended to J & K
 Parliament can not change name, boundary or territory of J & K without the concurrence
of state legislature
 No preventive detention law made by government can have automatic extension to J & K
(Note →PMLA is also applicable for J & K)
 Union has no power to proclaim a financial emergency to J & K
 State government shall be consulted by centre before appointing a person as governor of
J&K
 Apart from Presidential rule, governor rule can also be imposed for a max. of 6 months
 DPSP & Fundamental duties enlisted in Indian constitution are not applicable to J & K
 Urdu → Official language of the state
 J & K High Court -
 Can issue writs only in case of violation of FRs
 Cannot declare a law unconstitutional – Lack of Judicial activism
 Special Provisions for states (Article 371)
Article 371 → Special Provisions for Maharashtra & Gujrat
President is authorised to provide that Governor of Maharashtra & Gujrat would have special
responsibilities for:
 Establishment of separate development boards for Vidarbha, Marathwada & rest of
Maharashtra + Kutchh & rest of Gujrat
 A report on working of these boards will be placed each year before state legislative
assembly
 Equitable allocation of funds for developmental expenditure over the mentioned areas
 Equitable arrangements providing adequate facilities for technical education, vocational
training & adequate opportunities for employment in state services
Article 371 – A → Special Provisions for Nagaland
 Act of parliament relating to following matters would not apply to Nagaland unless state
assembly so decides:

 Religious & social practices of Nagas

 Nagas customary law & procedure

 Administration of civil or criminal justice involving decisions according to Naga customary law

 Ownership & transfer of land & its resources

 Special responsibility of governor wrt law & order in the state (after consulting COMs,
but his decision will be final) regarding internal disturbances occurring in Naga hills
mainly in Tuesang area (Special responsibility ceases if President directs so)
 Governor has to ensure that money provided by the GOI out of consolidated fund of India
for any specific purpose, is included in the demand for grant relating to that specific
purpose only, not any other
 A regional council for Tuensang district, consisting of 35 members should be formed &
governor in his discretion shall make all the rules & terms regarding this council
 For a period of 10 years, from formation of state of Nagaland or for further period as
specified by Governor, on recommendations of regional council, following provisions
would be operative for Tuensang district:

 Administration of Tuensang district shall be carried on by the governor

 Governor in his discretion shall arrange for equitable distribution of money, b/w Tuensang district &
Rest of Nagaland, provided by center

 There shall be a minister for Tuensang affairs in state COMs

 Final decision on all matters relating to Tuensang district shall be made by governor in his discretion

 Members in Nagaland assembly from the Tuensang district are not elected directly by the people but
by regional council

Article 371 – B → Special Provisions for Assam

 President may provide for the constitution & functions, a committee of Legislative
assembly of the state, consisting of members of that assembly elected from the tribal area
of Assam
 President can also direct that the governor shall have special responsibility to secure
proper functioning of that committee

Article 371 – C → Special Provisions for Manipur

 President may provide for the constitution & functions, a committee of Legislative
assembly of the state, consisting of members of that assembly elected from the hill areas
of Manipur.
 President can also direct that the governor shall have special responsibility to secure
proper functioning of that committee
 Governor should submit an annual report to the President regarding the administration of
Hill areas
Article 371– D → Special Provisions for Andhra Pradesh
 President is empowered to provide equitable opportunities & facilities for people
belonging to different parts of the state in matter of public employment & education
 For above purpose, President may require the state government to organize civil posts in
local cadre for different parts of the state & also provide for direct recruitment to posts in
local cadre (or in any such educational institution)
 President may provide for establishment of an administrative tribunal in state to deal with
certain disputes, relating to appointment, allotment or promotion to civil posts in state.
 Only SC is to exercise jurisdiction over such tribunal which means they are outside the
purview of HC (President may abolish the tribunals if he thinks it is not necessary)
Article 371 – E → Special Provisions for Sikkim
 Legislative assembly shall not less than 30 members + 1 seat from the state in Lok Sabha
& 1 in parliamentary constituency
 For the purpose of protecting the rights & interest of different sections of Sikkim
population, Parliament is empowered to provide number of seats in Sikkim administrative
assembly for the people belonging to such sections
 Governor in his discretion (On direction of President) have special responsibility for peace
& equitable arrangement for socio- economic development of different sections of Sikkim

Article 371 G → Special Provisions for Mizoram

 Legislative assembly shall not be less than 40 members
 Act of parliament relating to following matters would not apply to Mizoram unless state
assembly so decides :

 Religious & social practices of Mizo

 Mizo customary law & procedure

 Administration of civil or criminal justice involving decisions according to Mizo customary law

 Ownership & transfer of land & its resources

Article 371 H → Special provisions for Arunachal Pradesh

 Legislative assembly shall not be less than 30 members
 Governor of Arunachal Pradesh , on directions of President, shall have special
responsibility for law & order in state ( May consult with COMs but his decision will be
final)

Article 371 – I → Special provisions for Goa

 Legislative assembly shall not be less than 30 members

Union territories – India

 Do not take part in federal structure of the country
 No uniform system of administration as parliament has the power to prescribe the
structure of administration
 Under direct control of Union based on

Cultural Distinctiveness Pondicherry, Daman & Diu, Dadar & Nagar Haveli

Strategic Importance A & N islands, Lakshadweep

Political & administrative

consideration Delhi & Chandigarh

President may appoint Governor of a state as administrator of adjoining UT, who shall
exercise his functions independent of his COMs

Lieutenant Governor Delhi, Pondicherry & A & N islands

Chandigarh, Dadar & Nagar Haveli, Daman & Diu &

Administrator (IAS Officer) Lakshdweep

Points of Prominence
 UT of Pondicherry & Delhi → Legislative assembly with Council of Ministers & Chief
Minister
 Size of COMs is to be 10 % max. of legislative assembly
 Parliament can make laws on any subject given in 3 lists ( Power also extends to Delhi &
Pondicherry even though they have their own legislature)
 Pondicherry & Delhi can also make laws on any subject of state list & concurrent list
except laws related to Public order, Police & land
 President may frame regulations for peace, progress & good governance for all UTs
except Delhi & Pondicherry
 Parliament is empowered to constitute a high court for any of the UT or even can declare
an existing court there as high court

Delhi HC of Delhi Lakshadweep Kerala HC

 HC of Punjab &
Chandigarh Haryana A & N Island Calcutta HC

Dadar & Nagar Haveli, Daman &

Pondicherry HC of Chennai Diu Bombay HC

Advisory Committee
Link b/w Parliament & UT, consulted by Government in regards to:
 General questions of policy relating to administration of subjects in state list

 All legislative proposals in state list pertaining to the territories

 Matters relating to annual financial statement of territories
69th Amendment 1991
 UT of Delhi shall be called National capital territory & shall have a legislative assembly
with members, chosen directly by people from territorial constituencies
 Assembly shall make laws on matter enumerated in state list (Except matters of Public
order, Police & land)
 If any provision of law, made by legislative assembly wrt any matter which is repugnant
to any provision of law made by parliament wrt that matter, then law made by parliament
shall prevail & law made by LA shall to the extent of repugnancy, be void
 If law made by LA is preserved for consideration of President & has received his assent,
then such law shall prevail in NCT, however, parliament can make laws adding to, varying
or repealing laws made by LA
 There shall be COMs, not more than 1/10th of total members of LA, with CM at its apex to
aid & advice Lt. governor in exercise of his functions
 In case of difference b/w opinions of COMs & Lt. governor, Lt. governor shall refer it to
the President for his decision & shall act according to directions given by President

Scheduled & Tribal Areas (Article 244)

Article 244 (1) → Provisions of 5th schedule shall apply to administration & control of
schedule areas in every state other than Meghalaya, Tripura, Assam & Mizoram
Article 244 (2) → Provisions of 6th schedule shall apply to administration & control of tribal
areas of Meghalaya, Tripura, Assam, & Mizoram
5 Schedule → Administration of Scheduled Areas
th

 Governor of each state having scheduled areas have to submit a report to the President
annually or whenever so required by the President
 Executive powers of union extends to giving directions to the state regarding
administration of these areas
 A tribal advisory council consisting of not more than 20 members should be established in
each state having scheduled areas therein, for their advancement & welfare
 Governor is empowered to direct that any particular act of parliament or state government
does not apply to scheduled areas or if applied, then with specific modifications &
exceptions
 Constitution provides for appointment of a commission to report on administration of
scheduled areas & welfare of scheduled tribes in the state. President can appoint such
commission at anytime but compulsorily after 10 years from commencement of
constitution
6 Schedule → Administration of Tribal areas
th

 Tribal areas in state of Assam, Meghalaya, Tripura & Mizoram have been constituted as
autonomous districts (i.e. falls under the executive authority of state concerned)
 President at any time by order direct that whole or any specified part of schedule area
ceases to be a scheduled area or may increase the scheduled area in state after the
consultation with the governor of the state
 If there are different tribes in an autonomous districts, governor can divide the district into
several autonomous regions
 Each autonomous district has a district council of 30 members + each autonomous region
also has a separate regional council
 District & Regional councils are empowered to assess & collect land revenue & impose
certain specified taxes
 Governor can appoint a commission to examine & report of any matter relating to
administration of autonomous district of regions.
 He may also dissolve a district or regional council on the recommendation of appointed
commission.
Autonomous Councils Under Sixth Schedule

Famous Tribes of India

Jarawa, Onge, Sentinelese Andman

Shorn Pens, Holchu Nicobar

Assam, Meghalaya, Mizoram, Nagaland,

Palaeo Mongoloids Manipur.

Tibeto -Mongoloids Sikkim and Arunachal Pradesh

Mundas, Santhals, Oraons Chhotanagpur Plateau

Gonds, Kondhs Central Vindhyachal + Deccan Plateau

Gaddi, Kinner, Phangwal, Lahuli Himachal Pradesh

Jaunsari, Bhotia, Raji, Buxa, Tharu Uttar Pradesh , Uttarakhand

Anal, Chiru and Konkanas + Kollam Maharashtra

Mala and Savara tribes West Bengal

Bhuiya tribe Madhya Pradesh

Banjaras, Moghias and Sathiyas Rajasthan

Bhil + Maldhari (Gir lions) Gujrat

Oraon, Munda, Chero, Parchaiya, Santhal,

Asuras Bihar

Bhuiya, Baiga, Dharua, Gaaro, Ho, Koli, Lodha Orissa

Bakarwal J&K

Oorali, Sholagar, Irular and Badaga TN

Hakki-Pikki, Korgas, Kurubas, Soliga Karnataka

Kadars, Irulars , Paniyans, Korgas, ooralis Kerala

 Local Government System in India
73 constitutional amendment act, 1992 – 11 Schedule
rd th

Compulsory Provisions
 Organisation of Gram sabha

 Creation of 3 tier panchayati raj at District, Block & Village level

 All the seats in panchayati raj shall be filled by people chosen by direct elections from territorial
constituencies in panchayat areas

 Minimum age for contesting for elections to panchayats is 21 years, for fixed 5 years tenure

 Reservation of seats for SC/ ST in panchayats shall be in proportion of their population

 Reservation of women in Panchayats is upto 33 %

 Each state is to constitute a state election commission to conduct elections & state finance commission
every 5 years to review financial positions of the panchayats
Voluntary Provisions
 Providing reservation for backward classes

 Giving voting rights to members of union & state legislatures in these bodies

 Giving panchayats financial autonomy & powers to levy taxes, fees etc.

Salient Features of the act

Gram Sabha
 Adult people (above 18 years) register in electoral rolls relating to a village comprised within the area
of Panchayat.

 Meet twice a year (April 13 & Oct 3) & exercise functions as state legislature determines

 In other words, Gram sabha is village assembly of registered voters within panchayat area to discuss
issues related to their areas

3 Tier System
 Act provides for a 3 tier system of panchayati raj in every state i.e. Panchayats at village, intermediate
& district level

 However, a state having population less than 20 lakhs may not have intermediate level

 Members of Rajya sabha, Lok sabha & state assembly in district may be included in intermediate level
panchayat, in which they are registered as an elector
Election of Members & Chairperson
 All the members of the panchayat at village, intermediate & district levels shall be elected directly by
the people

 Chairperson of panchayat (at intermediate & district levels) shall be elected indirectly by & among the
elected members thereof

 Chairperson of panchayat at village level shall be elected in such a manner as the state legislature
determines

Reservation of seats
 Reservation of seats of SC & ST (at all 3 levels) shall be in proportion of, their population to total
population in panchayat area

 Further, state legislature shall provide for reservation of offices of chairperson in panchayat at all
levels for SCs & STs

 Reservation of not less than 1/3rd of total no. of seats for women, including number of seats reserved
for women belonging to SCs & STs
 Further, not less than 1/3rd of total no. of offices of chairperson in the panchayats at each level shall be
reserved for women

Duration of panchayats
 Every panchayat shall continue for 5 yrs from the date of its 1st meeting
 It can be dissolved earlier in accordance with the procedure prescribed by the state legislature

 In case, it is dissolved earlier, elections must take place within 6 month of its dissolution

Qualification
 Same as state legislature but must have attained a minimum age of 21

 Shall be qualified as a member of panchayat by any law made by state legislature

Powers & Functions

 It is for the state legislature to determine as to what powers are to be assigned to the panchayats to
enable them to function as an institution of self-government

 Powers shall be assigned mainly for social justice & economic development with regards to 29
matters, included in 11th schedule
Financial matters
State legislature may:
 Authorise a panchayat to levy, collect & appropriate taxes, duties tolls & fees

 Assign to panchayat to appropriate taxes, duties, tolls & fees levied & collected by state government

 Provide for making grants in aid to panchayats from consolidated fund of India

 Provide for constitution of funds for crediting money to panchayats

State Finance commission

Within 1 year of coming into force of this act & henceforth every 5 years, state gov. (Governor)
shall appoint a state finance commission, to review the financial positions of the panchayats & to
suggest different means to enhance the same

State Election commission

State election commissioner shall be appointed by governor to suprident, direct & control
elections of panchayats including preparation of electoral rolls. He can be removed on the same
grounds as a judge of HC & his tenure shall be determined by the Governor

Bar on interference by the courts

 The act bars the interference by courts in electoral matters of the panchayats

 It declares that validity of any law relating to delimitation of constituencies or allotment of seats to
such constituencies can not be questioned in any court

 Further, no election to any panchayat is to be questioned except by an election petition, presented to

such authority & in a manner provided by state legislature

Exempted states & Areas

 Act does not apply to J & K, Nagaland, Meghalaya, Mizoram, Hill areas of Manipur, Darjeeling &
certain other areas

 However, parliament may extend its provisions to these areas under PESA, 1996 (Provision to
panchayat extension to scheduled areas)
 74 amendment act, 1992 → 12 schedule
th th

Municipal councils (Nagar Palika) For smaller urban areas

Nagar Panchayats For semi urban areas

Municipal corporations For larger urban areas

 All the members of municipality shall be elected directly by people of municipal area.

 For this purpose, each municipal area shall be divided into territorial constituencies known as wards

 State legislature may provide a manner of election of chairperson of municipality

Ward committees → consisting of 1 or more wards within the territorial area of municipality
having population of 3 lakh or more

Reservation of seats
 For SC, ST in every municipality, in proportion of their population, to total population in municipal
area

 Further reservation of not less than 1/3rd of total number of seats for women, including number of seats
reserved for women belonging to SCs & STs
 State legislature may provide for manner of reservation of offices of chairpersons in municipalities for
SCs, STs & women

Duration → 5 years
 Elections to constitute a municipality shall be completed well before the expiry of duration of 5 years
(same as panchayats) & in case of dissolution, within 6 months from date of dissolution

 A municipality constituted upon the dissolution of municipality before the expiration of its duration, it
shall continue only for the remainder period, for which the dissolved municipality would have
constituted, had it not been dissolved

 74th amendment also envisage setting up of committees for district planning, to consolidate the plans
prepared by panchayats & municipalities in district & to prepare a draft development plan for the
district as a whole
“Finance commission, Election commission, duties same as Panchayats”

Section 6 → Center-State Relations + Tribunals + Language +

Emergency provisions + Anti-Deflection Law + Parliamentary
Committees
Center State Relations
Union List 100 items (Exclusive authority of Union)

Concurrent
list 52 items (Authority of both center & state)

61 Items ( 5 items transferred to concurrent list by 42 amendment; viz.

Education, forests, Justice, Weight & measures and Protection of wildlife,
State List animals & birds)

Under certain conditions, constitution authorizes union government to extend its

jurisdiction over matters included in state list viz.

When a proclamation of emergency is in force, parliament can legislate on matters included in all
3 lists
 On breakdown of constitutional machinery in state, parliament can take over
Article 356 legislative authority of the state

Empowers Rajya Sabha to transfer any matter in state list to legislative jurisdiction
Article 249 of parliament by a resolution passed by 2/3rd of the majority

If legislature of 2 or more states passes a resolution that a desirable law shall be

passed by parliament on any matter enumerated in state list, then parliament can
make laws regulating that matter. Any other state can also adopt such law by
Article 252 passing a resolution but these laws can be amended / repealed by parliament only

Empowers parliament to make laws for whole or any part of Indian territory for
implementing international agreements & conventions, even if the subjects covered
Article 253 by such treaties & agreements falls within state list

Residuary powers have been paced under legislative jurisdiction of the parliament

Central control over state legislation

Apart from above, constitution also provides for centre’s consent, before a bill passed by
state legislature becomes a law:

A state law providing for compulsory acquisition of private property shall have no effect without
Presidential assent

Grants immunity to laws providing for agrarian reforms from article 14 & 19 but
immunity of article 31 A shall not be available to state laws unless it receives
Article 31A Presidential assent

Directs governor of state to reserve a bill passed by state legislature for the
consideration of President, if in his opinion, law if passed, would derogate the
Article 200 powers of HC

Article 288 Authorize a state to levy tax wrt water & electricity, being distributed, used or
(2) sold by any authority, established by law made by parliament. But no such law
shall be valid unless it has been resent for consideration of the President & have
received his assent

Authorize a state legislature to impose reasonable restrictions on freedom of trade,

Article 304 commerce & intercourse within the state in public interest, but such law can not
(b) be introduced in state legislature without prior sanction of President

Administrative Relations between Center & States

 Union-state administrative relations in India are organized so as to enable the union
government to exercise considerable direction & control over administrative machinery of
the state
 Union government has been armed with the powers of giving directions to state & has
been given certain other powers to promote interstate coordination + settle interstate river
water disputes
 For above purpose, President may appoint interstate councils (Advisory in nature) to effect
coordination b/w the states

Financial Relations between Center & States

Financially strong centre, so much that states are almost completely dependent upon the
union for financial assistance. While proceeds of all the taxes within the state list are entirely
retained by the state, proceeds of some of the taxes in union list are allotted wholly or
partially to the states.
 Stamp duties + Duties of excise on medicinal & toilet preparations are mentioned in union
list & are levied by central government but collected by state government
 Taxes levied & collected by union but assigned to states:
 Duties wrt succession of property other than of agricultural land

 Estate duty wrt succession of property other than of agricultural land

 Terminal taxes on goods or passengers carried by railways, sea or air

 Taxes on railway’s freight & fare

 Taxes levied & collected by the union but distributed b/w union & states → Income tax
(Not including corporate tax)
Grant in aids & Loans
 Prime objective is promoting welfare of STs & raise administration of scheduled areas
 Parliament make grants to give financial assistance to states to help overcome budgetary
deficits
 Specific budget grants to states, as in case of jute producing states like WB, Assam, Bihar
& Orissa, in lieu of share of Jute export duty, levied by government
 Union can make grants for any public purpose for various national development schemes
 Union provides many other grants to states from time to time which mean states depend
greatly on Union to get loans. A state government can only borrow within India & can not
raise a new loan without the consent of Union government, if there is an outstanding on
previous loans
 Constitution provides for appointment of finance commission by President every 5 years
to advise him regarding distribution of resources b/w union & states & other revenue
matters
 Niti Ayog also plays a vital role in financial relations b/w centre & states. It decides
outlays of the plans for the country which in turn decides amount of money to be given to
various states

Cooperative Federalism
 In exigencies of war, national interest takes precedence over fine points of centre – state
divisions of powers
 Substitution of primary police state by welfare state, where varied social services or
technological advancement requires huge outlays & state government could not meet them
on their own resources
 Supreme Court Doctrines in context of legislative relations b/w Centre &
States
Doctrine of Pith & Substance
 Within their respected areas of authority, Union & state legislatures are supreme & are not
supposed to encroach upon others sphere
 If a new law passed by one encroaches upon the subject, held & assigned by the other,
court will apply Doctrine of Pith & Substance
 If it is found that law in substance is within the subjects assigned to that legislature &
intention of law is genuine, the law shall be valid, even though there is some overlapping.
 Hence, there can not be watertight division of powers b/w centre & the state, because if it
is, it would made several laws invalid on simple grounds of overlapping

Doctrine of Colorable legislation

 In federal government, transgression of its limit of powers by a legislature may be overt or
covert. When the legislation is indirect & covert, it is known as colorable legislation
 In this, although the subject on which legislature make laws falls within its legislative
competence in exterior appearance but its real motive is to transgress the powers of other
legislature covertly
 In this, case applying the Doctrine of colorable legislation, court can invalidate the entire
law which means, what legislature can not do directly, it can not do the same indirectly
also

Interstate councils
 President is empowered to constitute an interstate council, if at any time it appears to him
that public interest would be served thereby
 Establishment → May 1990, on recommendations of Sarkaria commission
 Meet 3 time a year with proceedings under camera

Members
 PM (Ex-officio chairperson)

 6 union ministers (as appointed by PM)

 CM of all the states & UTs
 Administrators of UTs

Largely based on GOI act of 1935; ISC has 3 specific duties viz.
 To enquire into & advice upon disputes arose b/w states

 To investigate & discuss subjects on which states or union + states have common interest
 To make recommendations on these subjects for better coordination of policy & action

Civil Services in India

 Central services by central government → UPSC
 State services by state Government → State PSC
 Common services to Union & States → All India Services

All India Services

 Serve centre as well as states; recruited by ministry of personnel in consultation with
UPSC
 Are under direct control of ministry for ex. IAS, IPS, IFS
 If Rajya sabha passes a resolution supported by not less than 2/3rd of members present &
voting, then Parliament may by law provide for creation of one or more all India services
(Including All India Judicial services → 42nd amendment)
All 3 Services
 Member of AISs or Central services hold office during the pleasure of President & in case
of state services, of governor
 President / Governor may provide for compensation if →
 Post is abolished before expiration of contractual period

 He is required to vacate the post for reasons not connected with misconduct on his part
 Safeguard of Civil Servants
 No person holding a civil post under Union or states shall be dismissed or removed by an
authority subordinate to appointing authority
 No such person is reduced, dismissed or removed in rank except after an enquiry in which
he has been informed of the charges against him & given a reasonable opportunity of
being heard wrt those charges
Union Public service commission
 Chairman (appointed by President)
 Members (Decided by President → Not Fixed)
 1/2 of the members of commission should be such persons, who have held the office for
atleast 10 years, either under GOI or state government

Duration → 6 years / 65 years

Removal → By President on following terms

 Guilty of misbehaviour or holds office of profit

 Adjudged insolvent
 Engages in paid employment outside duties of his office

State or Joint Public service commission

State PSC → Chairman + Members → appointed by Governor
Joint PSC → Chairman + Members → appointed by President
Joint PSC → 2 or more states agree to have joint PSC, Provided a resolution to the effect,
passed by legislature of these states in parliament
Duration → 6 years or 62 years of age

Points of Prominence
 UPSC, if requested by governor, may with approval of President agree to act for a state

 Half of the members of every PSC are the officials, who have held the government office
(union or state) for atleast 10 yrs
 All PSCs are only advisory in nature
 Chairman & members of Joint & state PSC can be removed from the office by only the
orders of the President
 Governor only has power to pass an interim order of suspension, pending the final order of
President on report of SC

Administrative Tribunals
Tribunals are meant to relieve the courts of overload & expedite the process of justice in
interest of affected officials

Administrative Tribunals (Article 323A)

 It authorises parliament to setup administrative tribunals for the purpose of setting
disputes & complains involving civil services
 It also authorize parliament to establish an administrative tribunal for the union & a
separate administrative tribunal for state or for two or more states

Central Administrative Tribunal (CAT) → For Union services including AIS

The CAT exercises jurisdiction over all service matters concerning the following:
 a member of any All-India Service
 a person appointed to any civil service of the Union or any civil post under the union
 a civilian appointed to any defence services or a post connected with defence
However, the members of the defence forces, officers, staff of the Supreme Court and the
secretarial staff of the Parliament are not covered under the jurisdiction of CAT.

State Administrative Tribunal (SAT) → For states services including state PSC

Following categories of employees are exempted from purview of Administrative tribunal:

 Employees of SC & HC
 Armed force professionals
 Rajya Sabha & Lok Sabha members

Points of Prominence
 SC may grant a writ of certiorari if a tribunal’s decision infringes an FR

 Chairman & members of CAT & SAT are appointed by President after consultation with
CJ
 Chairman & Vice Chairman retire at the age of 65 + Other members retire at the age of 62
 Chairman → Must be a HC judge (Serving/Retired) or VC of tribunal for atleast 2 years
 Members of administrative tribunals can be Judges of HC & or from civil services
Tribunal for other Services (323B)
For jurisdiction of disputes relating to following matters
 Taxation
 Foreign exchange (export & import)
 Land reforms
 Industrial & labour disputes
 Ceiling on urban property
 Election to parliament or state legislature
 Rent & Tenancy Issues
 Production, procurement & distribution of food stuff

Official Language India – 8th Schedule

 Official language of Union should be Hindi or Devnagri script

 However, for a period of 5 years from the commencement of constitution, English language would
continue to be used for all the official purposes of union, for which it was being used before the
commencement of constitution

 President should, at the expiration of 5 years & thereafter at the expiration of 10 years from such
commencement, by order constitute a commission to make recommendations regarding progressive
use of Hindi language, restrictions on use of English language & other related issues

 Parliament may by law provide for continued use of English language for specified purposes, even
after 15 years from the commencement of constitution

 A committee of 30 members (20 LS & 10 LS) should be constituted to examine recommendations of

commission & to report its views to President
Regional Languages
 Legislature of state may adopt any one or more of languages in use in state or Hindi as official
language of the state. Until that is done, English is to continue as official language of the state

 For the time being, English would remain the official language for communication b/w state & union
or b/w various states. But 2 or more states are free to agree to use Hindi for communication b/w
themselves
 Language of Judiciary
 All the proceedings in SC & in every HC as well authoritive text of all bills, acts, ordinances etc.
should be in English unless parliament provides otherwise

 Governor of the state, with previous consent of the President can authorize the use of Hindi or any
other official language of the state in the proceeding of the HC of state, but not wrt the judgment,
Decrees & order passed by it

Emergency Provisions in India

Article 352 → Proclamation of Emergency

National Emergency

External → War or external aggression Internal→ By armed rebellions

 President can issue a proclamation of emergency only when decision of cabinet is

conveyed to him in writing
 Proclamation is subjected to judicial review & its constitutionality can be questioned in
court of law on grounds of malafidism
 Has been issued only 3 times till now → (1962 & 1971 → External; 1975 → Internal)
 Every proclamation made under article 352 ( except a proclamation revoking previous
proclamation ) should be laid before each house of the parliament & must be approved by
them within one month after proclamation is made, by majority of total membership of the
house & by a majority of not less than 2/3rd of members of the house present & voting
 If parliament fails to approve such proclamation, then it ceases to be in operation on
expiry of 1 month after proclamation is made
 If parliament approves such proclamation, then it will be in force for 6 months from the
date on which it was approved by parliament, unless revoke earlier
 It can be approved by parliament any no. of times but not beyond 6 months at a time
 If LS stands dissolved before giving approval to proclamation, then RS needs to approve it
within 1 month & thereafter should be ratified by LS within 1 month after reconstitution
 If LS disapproves a proclamation to its continuance, President shall revoke the emergency
 If not less than 1/10th of the members of LS issue a notice with intension of disapproving
an emergency to the President, when LS is not in session or to Speaker, if it is in session,
 then a special sitting of LS shall be held within 14 days for the purpose of considering
such a resolution
 FRs under article 19 will be suspended automatically only in case of external emergency
 Parliament is empowered to extend by law, life of LS beyond 5 years for a period of not
extending 1 year at a time, but in any case not exceeding 6 months after the proclamation
of emergency has ceased to be in operation (Same case with state legislative assemblies)

Article 356 → Failure of constitutional machinery in state (Presidential rule)

 Must be passed by each house of the parliament by simple majority or cease to operate at
expiry of 2 months (Subjected to judicial Review)
 Approved for 6 months from the date of approval & can be further extended for a period
of 6 months.
 However, it can be extended beyond 1 year period but in any case not beyond 3 years
from the date of issue of proclamation, if :
 A proclamation of national emergency is in operation in that state or in whole India

 EC certifies that it is necessary on account of difficulties to hold general elections to state legislature
Article 360 → Financial Emergency
 A proclamation of financial emergency will remain in force for 2 months, unless before
expiry of that period, it is approved by both the houses of parliament by simple majority
 Once approved, it will be in force till it is revoked by the President (None Issued so far)

Anti Defection Law, 1985 (10 Schedule) th

 Rajiv Gandhi gov. imposed a ban on defection through 52nd amendment act.
 The act aims to prohibit undemocratic, unethical & unprincipled political defection by
members of legislature, by innovation of an instrument of disqualification
 A member of parliament or state legislature belonging to any political party, shall be
disqualified for being a member of that house if:
 He voluntarily give up the membership of such political party

 An independent member joins a political party after being elected

 A nominated member joins a political party after 6 months

 A member does not act according to the whips issued by his political party
Exceptions
 If 1/3 members of a political party resign from their parent party & form a splinter group
rd
 If 2/3rd of members of a political party resign from their parent party & merge with another
political party

Exemption
 Speaker & Deputy Speaker of LS, Deputy Chairman of RS

 Speaker & Deputy Speaker of LC, Chairman & Deputy Chairman of LA

On subjects of disqualification, decision of chairman / Speaker of the house shall be final. No

court shall have jurisdiction under this act wrt members of the house

1991 → SC verdict on Anti Defection Law

 Decision of presiding officer of the house on question of disqualification shall be final
 Decision of presiding officer of the legislature are open to judicial review
 In 1992, court further held that the whip issued by political party is binding on its
members, only in case of “Confidence motion, No confidence motion, Money bills &
Vote of thanks to President or Governor’s address”.
91st constitutional Amendment act, 2003
 Act debars a defector from holding any public office for the duration of remaining term of
the existing legislature or until fresh elections
 Size of COMs is to be 15 % max. of lower house at the centre as well as at states.
(However, smaller states such as Mizoram, Sikkim etc. would have the liberty of having a
minimum of 12 ministers)
 Seeks to debar a defector from holding any remunerative political post for the remaining
tenure of the legislature or unless re-elected
 Omitted exemption of splinter group law from exemption to Anti defection law

Parliamentary Committees
Parliamentary Committees
The work done by the Parliament in modern times is considerable in volume and varied in
nature. The time at its disposal is limited (3 sessions only) Hence, It cannot give close
consideration to the details of all the legislative and other matters that come up before it.
Hence Parliamentary Committees are necessary for detailed study on specific matters &
serve following purpose:
Types of Parliamentary Committees
Based on purpose and duration
 Adhoc Committee → appointed for a specific purpose and they cease to exist when they
finish the task assigned to them and submit a report
 Committees on Bills (Select and Joint).

 Railway Convention Committee.

 Committees on the Draft Five Year Plans.

 Hindi Equivalents Committee.

 Standing Committee (Advisory and Inquiry in Nature) → Standing Committees are
permanent committees. Each House of Parliament has Standing Committees

 Business Advisory Committee.

 Committee on Petitions.

 Committee of Privileges.

 Rules Committee.

Based on composition
 Select – Single House, ie either LS or RS.

 Joint – Both Houses.

Committee on Estimates (Lok Sabha)

 Consists of 30 memberswho are elected by the Lok Sabha every year from among its
members
 Ministers are not allowed to be part of this committee.
 The main function is to report what improvements in organisation, efficiency, or
administrative reform, consistent with the policy underlying the estimates may be affected.

Committee on Public Undertakings (PUC)

 Consists of 15 members elected by the Lok Sabha and 7 members of Rajya Sabha
 A Minister is not eligible for election to this Committee.
 The term of the Committee is one year.
 The functions of the Committee on Public Undertakings are:
 to examine the reports and accounts of Public Undertakings.

 to examine the reports of the CAG on the Public Undertakings.

 to examine in the context of the autonomy and efficiency of the Public Undertakings whether the
affairs of the Public Undertakings are being managed in accordance with sound business principles
and prudent commercial practices.

 such other functions vested in the Committee on Public Accounts and the Committee on Estimates in
relation to the Public Undertakings as are not covered by clauses (a), (b) and (c) above and as may be
allotted to the Committee by the Speaker from time to time.
Committee on Public Accounts (PAC)
 Consists of 15 members elected by the Lok Sabha and 7 members of the Rajya Sabha
 A Minister is not eligible for election to this Committee.
 The term of the Committee is one year
 The main duty of the Committee is to ascertain whether the money granted by Parliament
has been spent by Government “within the scope of the Demand”.
 The Appropriation Accounts of the Government of India and the Audit Reports presented
by the Comptroller and Auditor General mainly form the basis for the examination of the
Committee.

Business Advisory Committee (Lok Sabha)

The Business Advisory Committee of Lok Sabha consists of 15 members including the
Speaker who is the ex-officio Chairman.
 The members are nominated by the Speaker. Almost all sections of the House are
represented on the Committee as per the respective strength of parties in the House.
 The function of the Committee is to recommend the time that should be allotted for the
discussion of such Government legislative and other business as the Speaker, in
consultation with the Leader of the House, may direct to be referred to the Committee.

The Committee, on its own initiative, may recommend to the Government to bring forward
particular subjects for discussion in the House and recommend allocation of time for such
discussions.
Committee of Privileges (Lok Sabha)
 This Committee consists of 15 members nominated by the Speaker.
 The function is to examine every question involving breach of privilege of the House or of
the members of any Committee thereof referred to it by the House or by the Speaker.
 It determines with reference to the facts of each case whether a breach of privilege is
involved and makes suitable recommendations in its report.

Committee on Petitions (Lok Sabha)

 The Committee consists of 15 members nominated by the Speaker.
 A Minister is not nominated to this Committee.
 The function of the Committee is to consider and report on petitions presented to the
House.
 Besides, it also considers representations from individuals and associations, etc. on
subjects which are not covered by the rules relating to petitions and gives directions for
their disposal.

Committee on Subordinate Legislation (Lok Sabha)

 The Committee consists of 15 members nominated by the Speaker.
 A Minister is not nominated to this Committee.
 The Committee scrutinizes and reports to the House whether the powers to make
regulations, rules, sub-rules, by-laws etc. conferred by the Constitution or delegated by
Parliament are being properly exercised by the executive within the scope of such
delegation.

Rules Committee (Lok Sabha)

 The Rules Committee consists of 15 members including the Speaker who is the ex-officio
Chairman of the Committee.
 The members are nominated by the Speaker.
 The Committee considers matters of procedure and conduct of business in the House and
recommends any amendments or additions to the Rules of Procedure and Conduct of
Business in Lok Sabha that are considered necessary.