NOTE NO.

1 II SHRI SAI II

THE CONSTITUTION OF INDIA - II

© ALL RIGHTS RESERVED – No part of this notes may be
reproduced, stored in a retrieval system, or transmitted, in
any form or by any means, electronic, mechanical,
photocopying, recording or otherwise without the prior
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 STRUCTURE POWERS AND FUNCTIONS OF UNION AND

STATE EXECUTIVES –

 UNION EXECUTIVE – (ARTICLE 52 TO 78) –

INTRODUCTION –

In the Preamble to the Constitution, India is declared to be a

“Sovereign, Socialist, Secular, Democratic, Republic”. Being a
REPUBLIC, there can be no hereditary Monarch as the head of
the State in India, hence the institution of the PRESIDENT.

Articles 52 to 78 of the Constitution explain the

provisions relating to the EXECUTIVE i.e. THE PRESIDENT &
THE VICE-PRESIDENT. Our President is not too strong and
also not too weak. The framers of our Constitution placed him
in a unique position.

The President of India differs from the American President.

Where the American President is Elected by the People, the
Indian President is indirectly Elected by an Electoral College
consisting of M.P.s of both the Houses and MLAs by a proportional
representation of a Single transferable Vote.

The President must not be an MP or MLA. He should not

also be a Government Servant. The Dispute of the Election of
the President could be heard only by a Special Tribunal (under
the 39th Amendment). Article 52 of the Constitution lays down
that there shall be a President, who is the Head of the Union
Executive.

 QUALIFICATION OF PRESIDENT –

Article 58 lays down the QUALIFICATION which a person must

possess for being elected to the Office of the President of India -
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 a. He must be a Citizen of India.

b. He must be completed the Age of 35 years.

c. He must be qualified for election as a member of the House

of People.

d. He must not hold any OFFICE OF PROFIT under the

Government of India, or the Government of any State or
under any Local or other Authority subject to the Control of
any of the said Government.

But the following persons shall not be deemed to hold any

Office of Profit and hence, qualified for being a Candidate of
Presidentship. They are –

a. The President and Vice President of the Union.

b. The Governor of any State.

c. The Minister of the Union or of any State (Article 58).

 ELECTION OF THE PRESIDENT OF INDIA (SECTION 54) -

Unlike, the President of U.S.A., the President of India is not

directly elected by the People, but by the method of Indirect
Election. The Indian President is elected by an Electoral College
consisting of the elected members of both the Houses of
Parliament and the elected members of the Legislative
Assemblies of the State.

The Election of the President is held by Secret Ballot and it is

according to the System of Proportional Representation of
Single Transferable Vote.

To achieve such Uniformity, the following Formula is

adopted -

1. The Number of Votes of every member of the Legislative

Assembly is decided by dividing the total Population of the
State/ by the total number of elected members of
Assembly and further dividing it by 100. If the Remainder
is 500 or more, it is treated as One Vote or otherwise
Rejected.

2. The Number of Votes of each elected member of Parliament

is decided by dividing the total number of votes of all the
elected members of the Legislative Assembly of all States/
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 by the total number of elected members of both House of
Parliament.

FOR EXAMPLE -

Suppose the Population of Maharashtra is taken as

3,40,000. The total number of Elected MLAs are 240.

Then the number of votes by each -

MLA – Total Population of State (3,40,000)

Total number of MLAs (240)

MLA – 3,40,000/240 = 1000/100 = 14.166

14 votes to each MLA of Mumbai Legislative

Assembly.

Total Number of Votes of all the MLAs of Mumbai

Legislative Assembly = 240 (x) 14 = 3360.

3. On the above formula, suppose the total numbher of Votes

of all the State Assemblies of India is 4,00,000 and the
total number of elected members of Parliament is 750,
then the number of votes by each

3,00,000/ 750 = 400.

In the voting, each member can have Preference Vote

like Ist Preference, IInd Preference, etc., as according to the
number of candidates contesting.

Any Candidate who scores more than half the number

of total valid votes is deemed Elected. This may be
achieved on counting Ist Preference, IInd Preference, etc.,
as the case may be.

 SALARY AND EMOLUMENTS –

The Official residence can be used Free of Rent by the

President. The Parliament determines the Emoluments, Allowances
and Privileges to be enjoyed by the President. The Salary of the
President is at present Rs. 1,50,000/- upto 2017. In 2017, it
was increased to Rs. 5,00,000/- (+) other Allowances which is
non-taxable. It cannot be reduced during his term of Office.

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 He can spend a certain amount a year on Entertainment,
Travel, Staff, Household Expenses and the Own Allowances. On
resignation or expiry of his term, the President gets Pension Rs.
1.5 Lac a month.

 TERM OF OFFICE OF THE PRESIDENT –

The President shall hold officer for a term of 5 years. After

the expiry of his term, he shall continue to hold office until his
successor is elected.

The President is eligible to be re-elected for any number of

times. He can Resign before expiry of his term, by writing to
the Vice-President.

 IMPEACHMENT OF THE PRESIDENT –

The President may be removed from office by impeachment

for violation of the Constitution. The Impeachment charge
must come in the form of proposal from either House of
Parliament signed by not less than 1/4th of the total number of
the House.

The Charge is then investigated by the other House. At

such investigation, the President has right to appeal and to be
represented.

After Investigation, if the other House passes Resolution by

2/3rd Majority confirming the Charge as proved, the Resolution
has the effect of removing the President from his office.

If there is Vacancy of the Post of Presidentship due to

expiration of term of the then President, Election must be
completed before Expiration of the term.

In such a case, the outgoing President shall continue to hold till

his successor fills up the vacancy. If such vacancy arises due to
Death, Resignation or Removal from office, Election must be
conducted within 6 months from the date of vacancy.

 PRIVILEGES OF THE PRESIDENT (ARTICLE 36) –

1. The President is not answerable to any Court for performance

of the Powers and Duties of his office. However, a Person may
bring suit against the Government.

2. During the term of Office of the President, Criminal Proceeding

shall not be instituted against him.
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 3. During the term of Office of the President, he cannot be arrested or
imprisoned.

4. During the term of Office of the President, Civil Suit against the
President may be instituted in any Court in respect of any act
done by him in his personal capacity only after given a
Notice in writing and after an elapse of two months.

 FUNCTIONS AND POWERS OF THE PRESIDENT –

1. EXECUTIVE FUNCTIONS (SECTION 53) -

The Executive functions of the President shall be carried on

through his subordinate officers. Determination of Policies,
Maintenance of Order, Looking after the Social and Economic
Welfare etc., are the main Executive Functions of the President.

But the Executive Powers shall be exercised by the President in

accordance with the advice of his Council of Ministers. Executive
Functions are of Three (3) types -

i. Administrative.

ii. Military.

iii. Diplomatic.

i. ADMINISTRATIVE FUNCTIONS –

President is the Head of the Indian Republic and all Executive

Functions are executed in his name. He has the Power to appoint
Supreme Court and High Court Judges, the Prime Minister and
other Cabinet Ministers, Governors of the States, the Attorney
General and some other important Officials.

He can remove the Ministers and the Governors, the

Attorney General, the Supreme Court and High Court Judges in
accordance with the Procedure of Law.

All these Officials hold their Office during the pleasure of

the President. He has the Power to remove them from their Post
subject to the procedure prescribed by the Constitution.

The President has to exercise his Executive Power on the advice of the
Council of Ministers.

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 ii. MILITARY POWERS (ARTICLE 53(2) –

President is the Supreme Commander of the three Defence

Forces. He can declare War and Peace but the Parliament is
empowered to regulate, to control the exercise of the Military
Powers by the President.

iii. DIPLOMATIC POWERS –

President sends and receives Ambassadors and all treaties

are executed in his name only. He represents India in National
Affairs and appoints Representative to other countries.

2. LEGISLATIVE POWERS (SECTION 79)–

i. President can Summon and Prorogue the Parliament. He can

dissolve the Lok Sabha. If a Conflict arises between Rajya
Sabha and Lok Sabha, he can call a Joint Meeting and
Settle the Conflict.

Every Bill must get the assent of the President before it

becomes Law. He can return the Bill for Reconsideration.

The President submits the Annual Financial Budget,

the Report of Auditor General, etc. before the Parliament.

ii. The President can nominate members to the Houses of

Parliament. He can nominate 12 members in the Rajya
Sabha from persons of Literary Merit, Science, Arts etc.

The President can also nominate 2 members to the Lok

Sabha from the Anglo Indian Community.

iii. The President is given Rule-Making Powers under the Indian

Constitution.

3. EMERGENCY POWERS –

The President can proclaim Emergency arising out of War,

External Aggression, Internal Disturbance, etc. He can Proclaim
Financial Emergency.

He can also declare emergency for break down of

Constitutional Machinery in a State.

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 4. JUDICIAL POWERS –

Article 72 empowers the President to grant pardons, to

suspend, remit or commute sentences of any person convicted in
the following cases -

i. in all cases, where the punishment or sentence is

by a Court Martial.

ii. in all cases, where the punishment or sentence is

for an offence against any law relating to a matter
of the Executive Power of the Union.

iii. in all cases where the sentence is a Sentence of

Death.

5. FINANCIAL POWERS –

The President has been authorised to lay before Parliament at

the beginning of every Financial Year, a Financial Statement
showing the estimated receipts and expenditure of the Union for
that year.

 POSITION OF THE PRESIDENT –

 BEFORE 42nd AMENDMENT –

The Powers of the President are so vast that an ambitious

President could exploit them to become a Dictator. The following
Provisions support this Argument -

1. Article 153(1) says that the Executive Power is vested

only with the President. So he is the Sole
Administrative head of India.

2. Article 74 says that the Council of Minister are present

only to aid and advice him.

3. It is nowhere written in the Constitution that the

President is legally bound by advice of the Council of
Minister.

4. Article 74(2) says that the Advice rendered by the Minister

to the President cannot be questioned in any Court.

5. Article 75 says that the President appoints the Prime

Minister and other Minister. He can dissolve the
Parliament at any time. He can declare Emergency
throughout India.
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 6. He is the Supreme Commander of all the three (3)
Defence Forces. He can utilise it to suppress the Civil
Rebellion.

Thus, the President has vast POWERS though the

Constitution makers wanted to make the position of the President
only a nominal head.

Certain important Safeguards are incorporated in the

Constitution, which support the view that the President can never
be a Dictator nor an Autocrat.

The following Provisions and Case laws act as counter

argument that the President is controlled by the Prime Minister
and other Ministers, and cannot become a Dictator.

1. If the President ignores the advice of the Prime Minister

and other Ministers, then the Parliament may resign.

The Provisions for Impeachment of President for his

misuse of powers is a deterrent Intimidation to the
President.

2. The Power of Taxation and use of Consolidated Fund of

India can be exercised by the President only with the
Parliament’s prior permission.

3. The President of India should only be a Nominal Head and

not be the Real Executive. The Real Executive are the
Prime Minister and other Minister.

 U.N.RAO Vs INDIRA GANDHI (AIR 1971 SC 1002)

The Parliament was dissolved by the President on the advice

of the Prime Minister Mrs. Indira Gandhi and her Ministers.
Even after dissolution of the Lok Sabha, she continued as Prime
Minister with other Ministers to help the President.

U.N.Rao challenge the Validity of Mrs. Indira Gandhi

continuing as Prime Minster when the Lok Sabha was not in
Existence.

The Supreme Court held that the Prime Minister and other
Ministers must be present at all times to sit and advice the
President.

The President cannot exercise his powers without the Advice

of the Prime Minister and other Ministers.
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  SHAMSHER SINGH Vs. STATE OF PUNJAB (1974) 2 SCC
831 -

In the above case, the Supreme Court elaborately discussed

the Powers of the President and the Governors. It held that the
President and the Governors are merely Constitutional Heads.

They exercise their Powers and Functions under the

Constitution, only with the aid and advice of the Council of
Ministers.

The Indian Constitution is a Parliamentary/ Cabinet

System of Government where, the Collective Responsibility
rests with the Council of Ministers.

In simple terms, the President is bound to accept the

Advice of the Council of Ministers.

 AFTER 42nd AMENDMENT –

42nd Amendment removed all the doubts about the Position

of the President. It laid down that the President shall be bound
by the Advice of the Council of Ministers.

The President thus cannot act freely and cannot even act as
Advisor or Guide to the Council of Ministers.

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NOTE NO. 2 II SHRI SAI II

THE CONSTITUTION OF INDIA - II

© ALL RIGHTS RESERVED – No part of this notes may be
reproduced, stored in a retrieval system, or transmitted, in
any form or by any means, electronic, mechanical,
photocopying, recording or otherwise without the prior
permission of the author)

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 STRUCTURE POWERS AND FUNCTIONS OF UNION AND

STATE EXECUTIVES –

 UNION EXECUTIVE – POSITION AND POWERS OF THE

PRIMIE MINISTER (CABINET FORM OF GOVERNMENT) –
ARTICLE 74 & 75) -

The Prime Minister is really “the Keystone of the Arch of the

Cabinet” and a great functionary in a Parliamentary System.

The Prime Minister is rather like a Sun around which

Planets revolve. The President, though is Official Head of the
State, the Active Head is the Prime Minister.

Article 78 of the Constitution of India impose certain

Obligations on the Prime Minister –

Obligations are –

1. He is obliged to communicate to the President all

“Decisions” of the Council of Ministers relating to the
administration of the affairs of the Union and proposals for
legislation.

2. He has to furnish such information as the President shall

call for.

3. At the requirement of the President, he submits for

consideration of the Cabinet, any matter on which a
decision has been taken by an individual Minister.

 COUNCIL OF MINISTERS –

According to Article 75, there shall be a Council of Ministers

with the Prime Minister at the head to aid and advice the
President in the exercise of his functions. The Prime Minister is
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appointed by the President. On the advice of the Prime Minister,
the Council of Ministers are appointed.

The Council of Ministers is collectively responsible to the

Parliament. Every Minister must be a Member of Parliament and
any Minister who is not a Member of Parliament must acquire
such membership within 5 months of his appointment as
Minister.

Every Member of the Council of Minister holds his office

during pleasure of the President. Before he enters upon his office,
he is administered by the President the Oath of Office and
Secrecy.

The Ministers are entitled to such Salary and Allowances as

determined by the Parliament.

The Constitution is silent over the size of the Council of

Ministers. The size depends upon convenience of the Prime
Minister and necessity of the time.

The Cabinet is a Committee of the Ministers,/ while the

Council of Ministers consists of Cabinet Ministers, Ministers of
State etc.

 APPOINTMENT OF PRIME MINISTER –

The Prime Minister is appointed by the President. He cannot

appoint any person as Prime Minister. In this case, we have
adopted the British Polity the President should invite the leader
of the Majority Party to form the Ministry.

The Council of Ministers is collectively responsible to the

House of People. So, the Ministers are chosen by the Prime
Minister in such a way that he will get the utmost co-operation
from them.

For the effective realisation of the rule of the Collective

Responsibility, it is necessary that he should have unfettered
discretion to Select and to drop any Minister.

If he thinks that the Integrity or Policy of the Government is

at bad state, he may drop the Minister from the Cabinet or
advice the President to dismiss him from the Cabinet.

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  CABINET –

A large number of Ministers form the “Council of Ministers”.

But the real direction of policy lies with Principal Minister who
form the Cabinet. This is the body which makes the effective
decisions, policies, etc.

The Members of the Cabinet are chosen by the Prime

Minister. The Cabinet co-ordinates Administrative actions and
Controls the Parliament.

 DISMISSAL OF MINISTERS –

According to Article 72, a Minister holds office during pleasure

of the President. The word “Pleasure” cannot be an Arbitrary
Discretion of the President. In fact, it is the pleasure of the Prime
Minister that accounts for the dismissal of Ministers.

The Doctrine of Collective Responsibility can be successfully

worked only when the Appointment and Dismissal of Ministers
are completely left with the Prime Minister.

 PRINCIPLE OF COLLECTIVE RESPONSIBILITY –

The Basic Principle of Parliamentary form of Government is

the Principle of Collective Responsibility.

In India, this principle is ensure by making Specific

Provision in the Constitution. Article 73(3) provides that Council
of Ministers shall be Collectively Responsible to the Loksabha
for the general Conduct of Affairs of the Government.

The Council of Ministers work as a team and all decisions

taken by the Cabinet are the joint decisions of all the members.
No matter whatever be the personal differences of opinion within
the Cabinet, once a decision has been taken by it, it is the duty of
each and every Minister to stand by it and Support it.

The only alternative before a Minister who is not prepared to

support and defend the decision of the Cabinet is to resign. This
is a great weapon in the hands of the Prime Minister through
which he maintains Unity and Discipline in his Cabinet.

Along with the Principle of Collective Responsibility, the

Principle of Individual Responsibility of Ministers to the
Parliament also works. Every Minister is responsible for the facts
of the Officers of his department.
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 He has to answer questions regarding the affairs of his
department in the Parliament. He cannot throw the
responsibility of his department either on his Officials or
another Minister.

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 ATTORNEY-GENERAL OF INDIA (ARTICLE 76) -

Article 76 of the Indian Constitution narrates the

provisions relating to the Appointment of the Attorney General
of India" by the President

As per Article 76 of the Indian Constitution –The President

shall appoint a person who is qualified to be appointed a Judge
of the Supreme Court to be Attorney General of India

 FUNCTIONS OF ATTORNEY GENERAL OF INDIA –

1. The Attorney-General is to Give Advice to the Government

of India upon such Legal Matters as may from time to time,
be referred to be assigned to him by the President.

2. The Attorney-General performs such other duties of a legal

character which may be assigned to him by the President
from time to time.

3. The Attorney-general has also to discharge the Functions

conferred on him by the Constitution or by any other Law.

4. The Attorney-general is required to appear on behalf of the

Government of India in all cases in the Supreme Court in
which the Government of India is concerned.

5. He may also be required to appear in any High Court in any

case in which the Government of India is concerned.

6. He shall neither advice nor hold a Brief (i.e.Case) against

the Government of India in cases in which he is called upon
to advice the Government of India.

Nor defend any accused person for criminal

prosecution without the permission of Government of India.

7. He is prohibited to take appointment as a Director in any

Company.

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  RIGHTS OF ATTORNEY GENERAL OF INDIA –

1. In the Performance of his duties, he has Right to be Heard in

all Courts in the Territory of India.

2. He has a Right to Speak and Take Part in Proceeding of

either House of Parliament without a Right to Vote.

3. He is entitled to all the Privileges and Immunities of a

Member of Parliament.

The Attorney General shall hold office during the pleasure

of the President and shall receive such remuneration as the
President may determine.

 IMPORTANT POINTS REGARDING ATTORNEY GENERAL

OF INDIA -

1. "APPOINTMENT" - The Attorney General for India shall be

appointed by the President of India

2. QUALIFICATION - The person, who is appointed as

Attorney General of India, shall possess the qualifications,
which are required to be appointed as a Judge of the
Supreme Court.

3. TERM OF OFFICE - The Attorney General shall hold office

during the pleasure of the President.

4. REMUNERATION – He shall be entitled to receive such

remuneration as the President may determine from
time to time.

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 STATE EXECUTIVE – (ARTICLE 152 TO 167) –

INTRODUCTION –

The Governor in a State is similar to that of the Union i.e., it is

a Parliamentary System. There shall be a GOVERNOR in each
State. All the Executive Powers are vested in the Governor and
all the Executive Actions are taken in his name. A Governor is
the Executive Head of a State.

 APPOINTMENT AND TENURE –

A Governor is not elected by the people of the State concerned

but is appointed by the President under his Sign and Signature
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and the Governor holds office during the pleasure of the
President.

Subject to the pleasure of the President, the term of the

Governor is Five (5) Years from the date on which he enters
upon his office. One person may be appointed as Governor for
two or more States.

 QUALIFICATION AND CONDITIONS OF SERVICE –

To be Eligible for appointment as Governor, a person must

fulfil the following Conditions -

1. He should be a Citizen of India.

2. He must have completed the Age of 35 Years.

3. He must not be a Member of Parliament or of a House of

Legislature of any State.

The Salary of the Governor is Rs. 3.50,000/- Per Month +

DA and other Allowances at present. It is under further
upward Revision.

His Official Residence is free. He shall hold office during

the pleasure of the President and may be removed by the
President at any time. However, the Governor may resign by
writing to the President.

The Governor is not under the Control of Government of

India. He is an Independent Constitutional Office not subject to
the Control of the Government of India. Thus, the Office of
Governor is not an employment under the Government of India.

 POWERS OF THE GOVERNOR –

 EXECUTIVE POWERS (ARTICLE 154 AND 166) -

The Executive Powers of the Governor are analogous to those

of the President of India in relation to Union Government.

Article 154 provides that the Executive Power of the State

shall be vested in the Governor and shall be exercised by him
either directly or through Officers subordinate him in
accordance with this Constitution. It is the duty of the Governor to
see that the Government of the State should function
according to the Constitution. His functions are similar with
that of the President at the Central Government.
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 At the State level, the Governor is the Head but he is not
the real ruler. He should exercise his powers according to
"advice" of the Council of Ministers headed by the Chief
Minister.

The Council of Ministers run the Administration of the State

with Governor as the Constitutional Head.

The Governor appoints the Advocate-General of the State

who holds office during the pleasure of the Governor.

The Governor recommends the names of the persons to be

appointed as Judges of the High Court. The Governor has power
to carry on any trade or business and to acquire, purchase or
dispose property for the Government of the States.

 FINANCIAL POWERS –

No Money Bill or other financial Bills can be introduced in

the Legislative Assembly except on the recommendation of the
Governor. The Governor alone has the right to borrow money on
the security from the Consolidated Fund of the State.

The Money Bill is introduced in the Legislative Assembly of

the State, only with the recommendation of the Governor.

 LEGISLATIVE POWER –

The Governor Summons, Prorogue and Dissolved the

Legislative Assembly. These powers of the Governor are very
much same like the powers of President.

Every Bill passed by the State Legislature has to be

presented to the Governor for his assent to become law.

The Ordinance issued by the Governor has the same validity

as an Act of the Legislature. The Governor makes the Rules
relating to the Service Condition of the Public Service
Commission, Recruitment of Officers of the High Court, and
Recruitment of Secretarial Staff of the Houses of Legislature.

1. JUDICIAL POWERS –

The Governor has no such Judicial and Emergency Powers

as are enjoyed by the President but during a Proclamation of
the Emergency, he becomes the Real Executive Head of the

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State. He appoints the Judges to the Subordinate Courts in the
State.

These are the Powers of Governor of the State.

 COUNCIL OF MINISTERS –

The Governor shall act in accordance with the advice of the

Council of Ministers on all functions other than those in which
he can exercise discretionary powers in general.

The Relation between the Governor and the Council of

Ministers is the same as that of the Relation between the
President and the Council of Ministers in the Union.

The Government is carried on by the President through the

Governor.

The Ministers shall have office at the pleasure of the

Governor. The Council of Ministers shall be collectively
responsible to the Legislative Assemble of the State.

The Governor cannot override any decision of the Minister.

If the Cabinet supports the Minister, then the Governor has to
accept such decision.

However, there is one difference. The Governor has discretionary

powers which the President does not have. The Governor has
the power to dismiss an individual Minister at any time.

 CHIEF MINISTER –

The Chief Minister is the head of a State Council of Ministers

(like the Prime Minister of the Union). The Governor appoints the
Chief Minister and he appoints all other Ministers on the advice
of the Chief Minister.

Generally, the Chief Minister is the leader of the Legislative

Assembly. The Chief Minister shall communicate all decisions of
the Council of Ministers regarding Administration and Proposals
and any information and if the Governor requires, he shall
submit for the consideration of the Council of Ministers, any
matter on which a decision has been taken by a Minister but
which has not been considered by the Council.

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  Karunanidhi Vs. Union of India – (AIR 1979 SC 898) -

It is now settled that the Chief Minister is a Public Servant,

as he is paid from the Government Funds.

It is also held that as the Chief Minister is appointed and

dismissed by the Governor, he is subordinate to him whatever
be the nature and status of his constitutional functions. His
salary is paid for the Public work done by his from the
Government funds.

 ADVOCATE GENERAL –

The Governor of each State shall appoint a person (who is

qualified to be a Judge of High Court) as the ADVOCATE
GENERAL for such State.

He shall hold office during the pleasure of the Governor. His

remuneration is determined by the Governor.

He shall perform all Legal Functions of the State as giving

Advice to the State Government upon Legal Matters and all
other relevant Legal Functions. Advocate General is equivalent
to the Advocate General of the Union.

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NOTE NO. 3 II SHRI SAI II

THE CONSTITUTION OF INDIA - II

© ALL RIGHTS RESERVED – No part of this notes may be
reproduced, stored in a retrieval system, or transmitted, in
any form or by any means, electronic, mechanical,
photocopying, recording or otherwise without the prior
permission of the author)

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 UNION LEGISLATURE – PARLIAMENT OF INDIA –

(ARTICLE 79 TO 123) –

 INTRODUCTION –

The Parliament consists of –

1. The President.

2. The Council of States – i.e. (Rajya Sabha).

3. The House of People – i.e. Lok Sabha.

Both the Rajya Sabha and Lok Sabha are called the Houses
of Parliament. This is called “Bicameral Legislature”.

 HOUSES OF PARLIAMENT (BICAMERALISM) –

 RAJYA SABHA – COUNCIL OF STATES –

This is called the “UPPER HOUSE” of the Parliament and

consists of a maximum of 250 Members; 238 members are
Representatives of States and Union Territories and 12
members are nominated by the President from persons of
Knowledge or Experience in Science, Art, Social Service or
Literature.

The Representatives (i.e. 238 members) are elected by the

Elected Members of the Legislative Assembles of the State
according to proportional representation.

Rajya Sabha is a Permanent Body not subject to dissolution.

The term of the members is 6 Years and every 2 years, 1/3rd of
the members retire. The members of the Rajya Sabha are Senior
Politicians and Statesmen who do not undergo election.

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 The members must be Citizen of India and not less than 30
years of Age.

The Rajya Sabha stops the drastic changes in the law of the
country and many dignified debates are held.

 LOK SABHA – THE HOUSE OF PEOPLE –

This is the House of People – Popular House. The members

are elected by the people directly. The maximum membership is
545, and out of this, 525 members are elected by direct election
in the States and 20 members from Union Territories.

The direct election is one the basis of Adult Franchise. Every

Citizen above 18 years – Male or Female has a right to vole
unless he or she is disqualified due to non-citizenship,
unsoundness of mind or crime, etc.

For holding elections, the territory of India is divided into

territorial constituencies and uniformity of representation is
provided.

The Term of life of the Lok Sabha is 5 years but it can be

dissolved even before completion of the term. During
Emergency, the life of the Lok Sabha may be extended for One
Year at a time.

The members of the Lok Sabha must be Citizens of India, not

less than 25 years of Age and have other prescribed
Qualification.

 DISQUALIFICATIONS FOR MEMBERSHIP OF LOK SABHA

AND RAJYA SABHA –

1. If he holds any Central or State Government Post.

2. If he is of Unsound in mind.

3. If he is an Insolvent.

4. If he is not a Citizen of India or has acquired a Foreign

Citizenship voluntarily.

5. If he is having any other disqualification under any law.

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  VACATION OF SEATS BY MEMBERS –

In the following cases, a Member of Parliament should vacate

his seat –

1. If he gets membership in both the Houses, he must vacate

one of them.

2. If he is elected to the Union Parliament and also to State

Legislature, he must vacate the latter.

3. If he has any other mentioned disqualifications mentioned

in Article 102.

4. A member can resign his seat by writing to the Chairman of

Rajya Sabha or Speaker of the Lok Sabha.

5. If a member absents himself from all meetings of the House

for a period of 60 days without permission of the House.
Also if a member is expelled from the House, the seat would
be declared vacated.

 10th SCHEDULE – (ARTICLE 102(2) AND 191(2) –

The 10th Schedule deals with the provisions relating to the

disqualification of M.P. or M.L.A. on the ground of Defection
from one political party to another political party.

As per Provision 2 of the Schedule, if any M.P. or M.L.A.

voluntarily gives up his membership of a political party or votes
against the directions of the political party, then he is
disqualified to be an M.P. or M.L.A. on the ground of defection.

However, as per Provision 4 of the Schedule, if 2/3rd of the

M.Ps or M.L.As of the political party merges with another political
party, then their membership is not lost.

As regards the question regarding the disqualification on

ground of Defection, the decision of Chairman/Speaker is Final.
The Court have no Jurisdiction to hear any Case relating to
disqualification of a member of a House under this 10th
Schedule.

 TERMINATION OF A SITTING HOUSE –

The Sitting of a House is terminated by dissolution,

prorogation or adjournment. The House of people is dissolved
either after the term of 5 years is expired or by Presidents power
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to dissolve the Lok Sabha under Article 85. Prorogation is the
termination of a Session and Adjournment postpones the
transaction.

 OFFICERS OF PARLIAMENT –

The CHAIRMAN is the Presiding Officer of Rajya Sabha and

the SPEAKER is the Presiding Officer of Lok Sabha.

1. CHAIRMAN AND DEPUTY CHAIRMAN OF THE RAJYA

SABHA –

The Vice President of India is the Chairman of the Rajya

Sabha.

The House also elects a Deputy Chairman from its members.

The Chairman has the Power to regulate the proceedings of the
House in the same manner as the Speaker of the Lok Sabha.

The Deputy Chairman discharges the functions of the

Chairman when the Office of the Chairman falls vacant.

The Chairman can also be removed from his office if he is

removed from the office of Vice President.

Deputy Chairman vacates his office if he ceases to be a

member of the Council. He may also be removed by a resolution
passed by a simple majority of the then members of the House.

The Resolution must have 14 days advance notice and during

such proceeding though Chairman and Deputy Chairman have a
right to vote and participate in the proceeding.

2. SPEAKER AND DEPUTY SPEAKER OF LOK SABHA –

The House of People i.e. Lok Sabha soon after its first meeting
choose Two Members namely Speaker and Deputy Speaker.

The Constitution ensures complete independence of the

Speaker and Deputy Speaker (similar to Chairman or Deputy
Chairman of Rajya Sabha).

Their Salaries are fixed by law and are charged on the

Consolidated Fund of India. The Position of the Speaker is an
Impartial Umpire and his duty is to secure fair justice to
minority also.

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 The Speaker has power to regulate the proceedings of the
House as per Rules, and he has the final power to maintain
Order. The Speaker has the power to Preside over a joint sitting
of Two Houses of Parliament which the Chairman of the Rajya
Sabha doesnot have.

When a Money Bill is sent to him, he must certify that as a

Money Bill and his decision is final as to whether it is a Money
Bill or not.

The conduct of the Speaker regulating the order of the house

cannot be questioned by any Court. When the office of Speaker
is vacant or in the absence of Speaker attending the House, the
Deputy Speaker will act as Speaker.

If the office of the Deputy Speaker is also Vacant, then the

President will appoint a member for this purpose.

Normally, they hold office during the life of the office, but may
be terminated earlier if he ceases to be member of the House or
resigns in writing or removed from office by a resolution of 14
days advance notice and passed by a Simple Majority of the
members of the House, present and voting.

 FUNCTIONS OF PARLIAMENT – LOK SABHA AND RAJYA

SABHA -

1. The most important Function of Parliament is to make laws.

This is called as “Legislative Functions”. The Legislative
Bill are passed by required majority so that after assent by
the President, they become laws of the land (legislation).

2. The Parliament Houses are places for discussion of Public

Issues and Policies of the Government. The member debate
on issues and thus have free exchange of Ideas.

Imputations and Remarks which are defamatory in

public, are not defamatory inside Parliament.

3. The Parliament has power to amend the Constitution but

not the Basic Structure of the Constitution. A Special
Procedure is contemplated under Article 368 for the
Parliament to follow.

4. Parliament House is the Place from where Annual Budget is

presented, fresh taxes are levied, sanctions of Money for
expenses, etc., are done.
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 5. Parliament House have the power to remove high Officers
by impeachment procedure; FOR EXAMPLE – the
President, Vice President, Judges of the Supreme Court
and High Court, the Chief Election Commissioner, the
Comptroller and Auditor General of India can be removed
by impeachment proceeding in the Parliament.

The Executive is controlled by the Parliament and the

Policies of the Government are influenced by it.

 DEADLOCK BETWEEN THE HOUSES OF PARLIAMENT –

Any Bill (except Money Bill) can become Law only if it is passed
in both the Houses and agreed upon.

So, if there is any disagreement between the Houses of

Parliament i.e. Lok Sabha and Rajya Sabha regarding the
provisions of any Bill, the Constitution provides for a Joint Sitting
of the Two Houses as a measure to settle the deadlock between
them.

But for a Money Bill, deadlock cannot arise as it finally passed

by the House of the People only i.e. Lok Sabha.

 PROCEDURE OF RESOLVING DEADLOCK –

The Joint Sitting of both the Houses shall be presided over by

the Speaker of the Lok Sabha or in his absence, as determined by
the President after consulting the Presiding Officers of both Lok
Sabha and Rajya Sabha.

For passing the Bill, if it is assented by a Majority of the total

number of members of both Houses present and voting, it is
deemed to be passed by both Houses.

But, this procedure of passing a Bill is not applicable to any

Bill for the Amendment of the Constitution governed by Article
368(2), such a Bill needs Special Majority from each House
separately.

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  KINDS/ TYPES OF BILLS –

 MONEY BILL –

Money Bill is a Bill which contains only provision dealing with

all or any of the following matters –

1. The imposition, abolition, remission, alteration or

regulation of any tax.

2. The Regulation of the borrowing of money or the giving of

any guarantee by the Government of India.

3. The Custody of the Consolidated Fund or the

Contingency Fund, the payment or withdrawal of money
from such Fund.

4. The Appropriation of money out of the Consolidated Fund

of India.

5. The Receipt of Money on account of the Consolidated

Fund of India or the Public Account of India or the
Custody or issued of such money or the audit of the
account of the Union or of a State.

But a Bill is not a Money Bill which deals with –

a. The Imposition of Fines or other pecuniary penalties.

b. The Payment of Fees for licence or fees for service

rendered, or

c. Imposition, abolition, remission, alteration, or

regulation of any tax by any local authority or body
for local purposes.

If any question arises whether a Bill is Money Bill or not,

the Decision of the Speaker of the House of the People shall be
Final.

Money Bill can only be introduced in the Lok Sabha. It

cannot be introduced in the Rajya Sabha. After a Money Bill has
been passed by the Lok Sabha, it is sent to the Rajya Sabha for
recommendations of the Rajya Sabha.

If the Lok Sabha accepts any of the recommendations of the

Rajya Sabha, the Money Bill shall be deemed to have been passed

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by both the Houses with the Amendments by the Rajya Sabha
and accepted by the Lok Sabha.

If a Money Bill passed by the Lok Sabha which rejects all the
recommendation, if it is not returned to the Lok Sabha within 14
days, the Bill shall be deemed to have been passed by both
Houses at the expiration of the said 14 days period in the form
in which it was passed by the Lok Sabha. Thus, the Rajya Sabha
can at mots detain a Money Bill for 14 days only.

If the Lok Sabha rejects all the recommendations of the Rajya

Sabha, the Bill shall be deemed to have been passed by the Lok
Sabha, then it will be presented for the President’s Assent.

After the assent of President, the Certificate of the Speaker

shall be endorsed on it that it is Money Bill.

 FINANCIAL BILLS –

Financial Bills are of 3 Kinds/ Types –

1. Money Bills.

2. Other Financial Bills.

3. Bills involving Expenditure.

All Money Bills are Financial Bills but all Financial Bills are
not Money Bills.

Financial Bills and other Bills involving Expenditure differ

from a Money Bill in so far as the former can be Amended or
Reject by the Rajya Sabha like any Ordinary Bill.

The Rajya Sabha cannot Amend or Reject a Money Bill.

If there is a Deadlock between the Houses, it can be resolved by

the Joint Sittings of the Houses.

 ORDINARY BILL –

Any Ordinary Bill is a Bill other than Money Bill and Financial
Bills. The Bill may originate from either House of the Parliament
but should be passed by both the Houses of Parliament before
sent to the President for his assent. Only when it is assented by
the President, it becomes a Law.

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 The Bill passes through three stages. The first Reading is the
stage when the Bill is introduced in the House and no discussion
takes place. The second stage is the Bill is discussed.

At the third stage, there is general discussion of the Bill and the
Bill is finally passed. If there is any disagreement between the
two Houses, it is said to be a deadlock. By joint sitting of the two
Houses, the deadlock is resolved.

 ANNUAL FINANCIAL STATEMENT – ANNUAL BUDGET –

CONSOLIDATED FUND OF INDIA –

In respect of every Financial Year, an ANNUAL FINANCIAL

STATEMENT known as “Budget” is laid before both the Houses of
Parliament. This Financial Statement specifies the Estimated
Income and the Estimated Expenditure for the ensuring year.

The Estimated Expenditure is of two types –

1. Expenditure charged upon the Consolidated Fund of

India.

2. Other Expenditure out of the Consolidated Fund of India.

 CONSOLIDATED FUND OF INDIA AND CONSOLIDATED

FUND OF STATE –

Article 266 provides two Consolidated Fund –

1. CONSOLIDATED FUND OF INDIA –

All Revenue received by the Government of India, all loans

raised by that Government by the issue of treasury bills, loans or
advances and all money received by that Government in
repayment of loans shall form one Consolidated Fund called
“the Consolidated Fund of India”.

2. CONOLIDATED FUND OF STATE –

All Revenue received by the Government of a State, all loans

raised by that Government by the issue of treasury bills, loans or
advances and all money received by that Government in
repayment of loans shall form one Consolidated Fund called
“the Consolidated Fund of a State”.

The Money from the Consolidated Fund of India/ State can

be appropriate only as per law and also for the purpose and in
the manner provided in the Constitution.
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 1. Expenditures charged upon the Consolidated Fund of India

The following Expenditure are charged on the Consolidated

Fund of India.

a. the Salaries and Allowances of the President and his

other Official Expenditure relating to his office.

b. the Salaries and Allowances of the Chairman and

Deputy Chairman of Rajya Sabha and the Speaker
and Deputy Speaker of Lok sabha.

c. Debt charges for which the Government of India.

d. Salaries, Allowances and Pension payable to the

Judges of Supreme Court, the Comptroller and
Auditor General of India and Judges of High Court.

e. Any sums required to satisfy any Judgement,

Decree or Award of any Court or Tribunal.

f. Any other expenditure declared by Constitution or

by Parliament by law to be so charge.

2. Other Expenditure out of the Consolidated Fund of India –

All Expenditure leading to Structure and Development

Planning, etc., are covered under this head.

After discussions on the Budget in the Lok Sabha, a Bill

known as “Appropriation Bill” is introduced in the Lok Sabha.
Only after the passing of the Appropriation Bill, Money can be
withdrawn from the Consolidated Fund of India.

-----------------------------------------------------------------------------------

 "COMPTROLLER AND AUDITOR GENERAL OF INDIA"

(Article 148 to 151)

Article 148 to 151 of the Constitution of India deals with

the "Comptroller and Auditor General of India". He is well
known as, "CGA". There shall be a CAG to examine the accounts
of Central and State Governments.

There shall be a Comptroller and Auditor General in India.

The Comptroller and Auditor General in India is appointed by the
President of India. He has to take oath before entering upon
his office before the President for that purpose.

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 His salary is charged on the Consolidated Fund of India.
His term of Office is 6 years. After he has ceased to hold his
office, he shall not be eligible to hold any office under Central
and State Government. Due to the importance of his post, he is
given equal status of a Judge of Supreme Court. He is removable
as in the case of removal of Judge of Supreme Court. His age
of Retirement is 65 years.

His office must be impartial. CGA is an Auditor. As an

Auditor, he Audits all the Expenses and Receipts of the Central
and State Governments and Verifies whether such amounts are
legal or illegal.

The Object for the creation of the post of CGA is to check-

up the Central and State Government's accounts so that the
Government shall not incurred unnecessary and waste
expenses.

DUTIES AND POWERS OF CAG (Article 149 to 151) -

1. Auditing all expenses from the Consolidated Fund of India

and each State and Reporting whether such Expenses are
in accordance with Law.

2. Auditing and Reporting the Expenditure from the

Contingency Funds and Public Accounts of the Union
and States.

3. Audit and Report on all other Accounts of the Union and

State.

4. Auditing the Receipts and Payments of the Union and

State to check on the Assessment, Collection and
Allocation of Revenue.

5. As per Article 150, he shall keep the Accounts of the

Central Government and State Government in the
manner prescribed by the President.

6. As per Article 151, the Report of CAG of India i.e.

Auditor's Report relation to the accounts of Union i.e.
Central Government shall be submitted to the President
who shall cause them to be laid before the Parliament.

7. He shall also submits Report of accounts of State to the

Governor of the State who shall lay it before the
Legislative Assembly of the State.
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 8. As an Accountant and Auditor, he controls all withdrawal
of money disbursed by Central and State Government.

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NOTE NO. 4 II SHRI SAI II

THE CONSTITUTION OF INDIA - II

© ALL RIGHTS RESERVED – No part of this notes may be
reproduced, stored in a retrieval system, or transmitted, in
any form or by any means, electronic, mechanical,
photocopying, recording or otherwise without the prior
permission of the author)

-----------------------------------------------------------------------------------

 THE STATE LEGISLATURE (ARTICLE 168 TO 213) –

 INTRODUCTION –

The Pattern of Government in generally UNIFORM in all the

States, but in Smaller States, there shall be only One House
instead of Two Houses as in the other bigger States.

The Two Houses are called –

1. The Legislative Assembly.

2. The Legislative Council.

If there is only One House, it is called, “the Legislative

Assembly”.

 HOUSES OF THE STATE LEGISLATURE –

1. LEGISLATIVE ASSEMBLY –

Legislative Assembly is composed of Members chosen by

direct Election on the basis of Adult Suffrage/ Francis from
territorial Constituencies in the State. The Representation is
on the basis of Population of the State. The Total Number of
members may be 60-500, the Period of Tenure of the Assembly
was previously i.e. before the 44th Amendment was 6 years, but
now it is only 5 years.

The Speaker and Deputy Speakers are the Supervising

Officers of the Legislative Assembly.

 SPEAKER OF LEGISLATIVE ASSEMBLY –

The Legislative Assembly has a Speaker and a Deputy Speaker.

They are Elected from among the members of the House.

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 The Functions performed by these Presiding Officers are
similar to the functions of Presiding Officer of the two Houses of
the Parliament. The Speaker of the Assembly can decide whether
a Bill is a Money Bill or not.

The term Speaker is a title often given to the Presiding Officer

of a Assembly. The Speaker’s Role is to moderate debate, make
rulings on procedure, announce the results of votes and the
like.

The Speaker decides who may speak and has the Powers to
discipline members who break the procedures of the House.

2. LEGISLATIVE COUNCIL –

The total number of members of a Legislative Council is not

more than 1/3rd of the total number of members in the
Legislative Assembly of that State, but not less than 40. 5/6th of
the number of members of the Council are elected indirectly and
1/6th of the members are nominated by the Governor of the
State.

 THE PROVISIONS REGARDING ELECTIONS ARE AS

FOLLOWS –

1. 1/3rd of the members are elected by Electorates

consisting of members of Local Bodies – such as
Municipalities, District Boards.

2. 1/12th elected by Electorates consisting of Graduates of

3 years standing residing in that State.

3. 1/12th elected by Electorates consisting of persons

engaged for minimum 3 years in teaching in
Educational Institutions within the States.

4. 1/3rd elected by members of the Legislative Assembly

from among persons who are not members of the
Assembly.

5. The remaining 1/6 are nominated by the Governor from

persons excelling in Literature, Science, Co-operative
and Social Service, etc.

The Legislative Council is not dissolved completely but 1/3rd of

its members shall retire every 2 years. The Presiding Officers are
Chairman and Deputy Chairman.
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  QUALIFICATION FOR MEMBERSHIP –

For membership in the Houses of Legislature of a State the

following are necessary –

a. He should be a Citizen of India.

b. His Age should not be less than –

i. 25 years – for Legislative Assembly.

ii. 30 years – for Legislative Council.

c. Any other Qualification prescribed by law made by the

Parliament.

The Disqualifications are the same as that of the Houses of

Union Parliament. Regarding any question as to the
disqualification, the Governor’s decision is Final.

 QUORUM OF THE HOUSE –

1. All questions shall be determined by a Majority of Votes

of the members present and voting, other than the
Speaker or Chairman. Only if there is Equality of Votes,
the Speaker or Chairman shall Vote.

2. Vacancy arising in the Membership of the House, does

not affect the Power of the House to act.

3. The Quorum to constitute a Meeting of the House, is 10

Members or 1/10th of the total members of the House,
whichever is greater.

4. The Speaker or Chairman shall adjourn the meeting if

there is no Quorum or Suspend it till there is a Quorum.

 PROCEDURE OF THE LEGISLATURE (ARTICLE 196) –

The Procedure of Legislature is of 2 types –

1. PROCEDURE REGARDING MONEY BILL –

The Procedure of passing Money Bill is SIMILAR to that of

Parliament. The Legislative Assembly’s Power prevail and it is
not bound to accept any recommendations made by the
Legislative Council.

So, the is no chance of any deadlock between the two

Houses in respect of Money Bills.
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 2. PROCDURE REGARDING BILLS OTHER THAN MONEY
BILL –

The Bill other than Money Bill is passed by the Legislative

Assembly, and if the Legislative Council either Rejects the Bill or
Passes it with Amendments, not agreeable to the Legislative
Assembly or does not pass the Bill for 3 Months after it is laid
before the Legislative Council, then the Legislative Assembly
may again pass the Bill with or without further Amendments and
transmit the same to the Legislative Council again.

If the Legislative Council again Rejects the Bill, or proposes

any Amendment or does not pass it within One Month of the
date on which it was laid before the Legislative Council, the Bill is
considered by both Houses and presented to the Governor for
his assent.

Thus, any Bill passed by the Legislative Assembly which is not

agreed by the Legislative Council, has two journeys, One in
which the Legislative Council shall withhold it for 3 Months and
the second journey for 1 Month, and finally the Bill becomes
law.

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 - SUPREME COURT -

 STRUCTURE, POWERS AND FUNCTIONS OF SUPREME

COURT (ARTICLE 124 TO 147) –

 INTRODUCTION –

THE SUPREME COURT OF INDIA replaced the Federal Court

and became the Final Court of Appeal in 1950. The Supreme
Court consists of One CHIEF JUSTICE and not more than 24
other Judges.

But Parliament may increase this number by law. The total

strength of Judges at present is 34 including the Chief Justice.

 APPOINTMENT OF THE JUDGES OF SUPREME COURT –

The President appoints the Judges of the Supreme Court. The

Chief Justice of the Supreme Court is appointed by the President
with the consultation of the Judges of the Supreme Court and
the High Courts as its deems necessary.

In appointing other Judges of the Supreme Court, the

President consults the Chief Justice of India. Generally, the
Senior-most Judge of the Supreme Court is appointed as the
Chief Justice of India.

 “COLLEGIUM SYSTEM” AND “NATIONAL JUDICIAL

APPOINTMENTS COMMISSION” FOR APPOINTMENT,
PROMOTION AND TRANSFER OF SUPREME COURT AND
HIGH COURT JUDGES – [THE CONSTITUTIONAL (99TH
AMENDMENT) ACT ] –

The Constitutional (99th Amendment) Act provides for the

formation of a “NATIONAL JUDICIAL APPOINTMENTS
COMMISSION” in place of Collegium System which was in vogue.
The Collegium was created by the Supreme Court of India in
1990.

“Collegium System” – a Body of Senior Apex Court Judges

headed by the Chief Justice of India Selected persons and
Recommended their names for appointment as Judges and also
their transfers. The Collegium identifies serving Judges and
Chief Justices of High Court for elevation to the Supreme Court.

To Substitute Collegium, the National Judicial

Appointments Commission (NJAC) was proposed vide 99th
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Amendment in 2014 of the Constitution, which empowered the
Appointment and transfer of Judges to the Higher Judiciary in
India.

On 16th October, 2015, the Constitution Bench of Supreme

Court by 4:1 Majority upheld the already existing Collegiums
System and struck down the National Judicial Appointment
Commission (NJAC) as Unconstitutional. It restored the
Collegium System for appointment of Judges.

 QUALIFICATION OF JUDGES –

The Supreme Court Judge must be Citizen of India. He

should have been a High Court Judge for at least Five Years or as
an Advocate for at least 10 years. The Salary of the Chief Justice
is currently 2.5 Lakhs per month.

 TRANSFER OF JUDGES (ARTICLE 222) –

1. The President may, after consultation with the Chief

Justice of India, transfer a Judge from one High Court to
any other High Court.

2. When a Judge has been so transferred, he shall, during the

period he served as a Judge of the other High Court, be
entitled to receive in addition to his Salary, specified
Compensatory Allowance as determined by Parliament by
law.

 TENURE AND REMOVAL OF JUDGES OF SUPREME COURT

–

The Retirement Age of Supreme Court Judge is 65 years. He

may also Resign his office by writing to the President. A Supreme
Court Judge may be Removed from his Office by Order of the
President for proved misbehaviour or incapacity.

The Order of the President is passed after it had been addressed

to both Houses of Parliament and supported by Majority of total
membership of that Houses and also by a Majority of not less
than 2/3rd of the Members of that Houses, present and voting.

The Judge of the Supreme Court should not practice as a

Judge in any Court of India, but he can act as Advice Judge in
the Supreme Court.

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 If the Office of the Chief Justice falls vacant due to some
reason, any of the Judges of the Supreme Court may be
appointed as the acting Chief Justice.

 IMPEACHMENT OF JUDGES –

A Judge is removed only after impeachment proceedings

before both the Houses of Parliament and voting by the Majority
of members present and voting.

Impeachment is the formal process against Officials including

Judges who had done the unlawful activities and such person is
removed from the office in addition to other punishments as
prescribed.

According to Article 124(4), a Member of Higher Judiciary

including the Chief Justice of India and the State High Courts
can be removed from the service through the process of
impeachment on the ground of proven misbehaviour.

In India, there is no other process by which a Judge can be

removed from the office before his term comes to an end.

 PROCEDURE OF IMPEACHMENT –

1. As per the Judge’s Inquiry Act, 1986, the Impeachment

of Judges can be done on grounds of ‘Proven
Misbehaviour’ or ‘Incapacity’.

2. If a Judge of Supreme Court or High Courts of India is to

be impeached, then the recommendation for such
impeachment have to be made by the Chief Justice of
India to the President of India. If it is accepted, then the
“Proposal of Impeachment” must be introduced by 100
MP’s in Lok Sabha or 50 MP’s in Rajya Sabha.

3. The Copy of the Proposal is given to the concerned Judge

before the proceeding starts in the Parliament. The
Motion passed by 2/3rd Majority of members present and
voting. It must be done separately in the each House of
the Parliament.

4. An Inquiry Committee of three members are made out of

which two are Judges – one from Supreme Court and the
other is the Chief Justice of High Court.

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 If the motion is passed, then a formal announcement is
made by the President of India.

 HISTORY OF IMPEACHMENT PROCEEDINGS IN INDIA –

1. The impeachment proceeding is done only in extreme

cases in India. The Impeachment proceedings were done
on two Judges.

2. In India, two Judges were removed from their respective

office by impeachment process in Parliament of India.

- Two Judges are –

a. Justice V. Ramaswami – he was the then Punjab and

Haryana High Court Chief Justice in the year 1993,
when he was impeached by the Lok Sabha by 196
votes. The Supreme Court charged Justice V.
Ramaswami that he has failed ‘to do complete justice’.

b. Justice Soumitra Sen – he was the Calcutta High

Court Chief Justice. The Chief Justice of India
K.G.Balakrishnam recommended the Parliament for
impeachment proceedings against him because he has
misappropriated Rs. 22.83 Lakhs in the year 2009.

The three members Committee set up found him

guilty. He was impeached by Rajya Sabha on 18th
August, 2011.

 JURISDICTION OF SUPREME COURT –

The Supreme Court has the following Jurisdiction –

1. COURT OF RECORD (ARTICLE 129) –

“Court of Record” means that the Proceedings and

Judgments will be preserved for ever to serve as Precedent (i.e.
Case laws)

As a Court of Record, it can Punish individuals for

Contempt of Court. Any act which obstructs or interferes with
the course of Administration of Justice is termed as Contempt
of Court.

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 2. ORIGINAL JURISDICTION -

a. AS TO FUNDAMENTAL RIGHST (ARTICLE 32) – WRIT

JURISDICTION –

Article 32 authorises the Supreme Court to issue directions,

orders or writs. The Writ may be Habeas Corpus, Mandamus,
Quo-Warranto, Certiorari and Prohibition.

The Jurisdiction is also known as Writ Jurisdiction of the

Supreme Court because the Supreme Court by this Jurisdiction is
called as Guarantor of Fundamental Writs.

The Writ Jurisdiction of the Supreme Court is narrow and

it is confined only to Fundamental Rights (Article 14 to 35).

b. AS TO FEDERATION (ARTICLE 131) –

A Federal Government involves division of powers between the

Central and States Government.

The Supreme Court is authorised to settle the disputes

arising between the Centre and the State or between two or more
States, etc.

3. APPELLATE JURISDICTION (ARTICLE 132 – 136)

The Appellate Jurisdiction of the Supreme Court may be

divided into following classes based mainly on the nature of
disputes -

a. Cases involving Interpretation of the Constitution, whether

Civil or Criminal, involving a substantial Question of law.

b. Civil Cases irrespective of any Constitutional Questions.

c. Criminal Cases irrespective of any Constitutional Questions.

d. Appellate Jurisdiction by Special Leave Appeal.

4. ADVISORY JURISDICTION OF SUPREME COURT –

The Constitution authorises the President to refer to the

Supreme Court for its Advisory Opinion, when it appears to him
that –

a. A Question of law or fact had arisen or is likely to arisen

and

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 b. The Question is of such a nature and of such Public
Importance that it is expedient to obtain the opinion of
the Supreme Court upon it.

The Supreme Court ‘may’ after such hearing as it thinks fit,

report to the President its opinion thereon.

5. REVIEW JURISDICTION –

The Supreme Court has power to review any of its

Judgments pronounced or orders made. However, this power is
subject to any law made by Parliament or rule made by the Court
itself.

 RULE MAKING POWER –

The Supreme Court is empowered to make rules for regulating

the practice and procedure of the Court including such matters as
person practising before it, procedure for hearing appeals, etc.

 BINDING NATURE OF SUPREME COURT JUDGMENTS

(ARTICLE 141) –

As per this Article, the law declared by the Supreme Court is

binding on all Courts. It means that the law declared by the
Supreme Court shall be binding on all Courts within the
territory of India.

 BENGAL IMMUNITY CO. Vs. STATE OF BIHAR – AIR 1955

SC 661 –

In this case, Article 141 of the Indian Constitution that the

Judgment of the Supreme Court will be binding on all Courts in
India was elaborately discussed by the Supreme Court. The
question discussed wa that whether the expression – “all
Courts, within the territory of India” means “Courts other than
the Supreme Court”.

The Supreme Court held that there is not provision in the

Indian Constitution which prevents the Supreme Court
departing from its previous decisions.

However, the Supreme Court must be convinced of the error

in its previous judgment and must also consider the beneficial
effect on the general interest of the publish by such deviation
in the previous judgment.

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 Further, it should exercise due care and caution and all the
surrounding circumstances of the case including the public well
being, before departing from the previous judgment.

It also held that the “Doctrine of Stare Decisis” is flexible

rule of law and to prevent further errors, the Supreme Court
depart from its previous decisions.

 INDEPENDENCE OF JUDICIARY –

The Constitution has made several provisions to ensure

Independence of Judiciary. The Following are the provisions -

1. The Judge of the Supreme Court cannot be removed from

office except by an Order of the President for misbehaviour
or incapacity.

2. The Salaries and Allowances of the Judges of the Supreme

Court are fixed by the Constitution. During the term of their
office, their Salaries cannot be reduced.

3. The Parliament can only exceed and cannot curtail the

Jurisdiction and Power of the Supreme Court.

4. The Supreme Court and High Courts have the Power to

Punish any person for its Contempt.

5. The Conduct of a Judge of the Supreme Court in discharge

of his duties cannot be discussed in the Parliament.

CASE LAW –

C. RAVICHANDRAN IYER Vs. JUSTICE A.

BHATTACHARJEE –

It was held that the conduct of the Judge cannot be

enquired or discussed by the Parliament except as
prescribed by Article 124 of Judges (Enquiry) Act. The Bar
Council also cannot discuss or pass resolution against
him.

6. The President shall appoint the Judges of the Supreme

Court on consultation with the Judges of the Supreme Court
and High Court.

7. A Retire Judge of Supreme Court is prohibited from

practice in any Court within the territory of India.

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 8. Article 50 of the Constitution directs the State to take steps
to Separate the Judiciary from the Executive in the public
services of the State.

Thus, the Independence of Judiciary is guaranteed under

the Constitution but there are certain threats to the
Independence of Judiciary, they are –

1. The Executive shall appoint the Judges of the Supreme

Court with the consultation of the legal expert, but the
President is not bound by it.

So, the appointment of the Judges of the Supreme

Court is completely vested in the Executive.

2. The President has the Power to transfer a Judge from

one High Court to another.

3. The Practice of appointing Retired Judge in various

capacities poses a serious danger to Judicial
Independence.

Thus, only if the hereinabove threats are removed, then

the Judiciary become independent completely.

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NOTE NO. 5 II SHRI SAI II

THE CONSTITUTION OF INDIA - II

© ALL RIGHTS RESERVED – No part of this notes may be
reproduced, stored in a retrieval system, or transmitted, in
any form or by any means, electronic, mechanical,
photocopying, recording or otherwise without the prior
permission of the author)

-----------------------------------------------------------------------------------

- HIGH COURT -

 STRUCTURE, POWERS AND FUNCTIONS OF HIGH COURT

(ARTICLE 214 TO 237) –

 INTRODUCTION –

The State Judiciary consists of High Court and Subordinate

Courts. According to Article 214, there shall be a High Court for
each State, but as per Article 231, there may be a Common High
Court for two or more States or/and Union Territories.

The Subordinate Court consists of District Courts in each

District, Subordinate Judge Courts, Court of Civil side and
Sessions Courts, District Magistrate Courts, Judicial Magistrate
First Class Courts in Criminal Side.

 THE HIGH COURT – COMPOSITION AND QUALIFICATION –

Every High Court consists of a Chief Justice and such other

Judges, as the President may appoint from time to time. The
Chief Justice of a High Court is appointed by the President after
consultation with the Chief Justice of India and Government of
India.

For other Judges of High Court, the Chief Justice of the High
Court is consulted. The Home Minister and the Chief Justice
advice President for appointment of the Judges of the High
Court.

To be a High Court Judge, a person must be a Citizen of India,

and must have held Judicial Office for 10 years, or practiced as
an Advocate in the High Court for 10 years, or a distinguished
Jurist in the opinion of the President.

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 The Salary of the Chief Justice of High Court is Rs.
Per month and other Judges Rs. Per month + DA and other
Allowances. It is under further upward revision.

The President can transfer a Judge from one High Court to

another High Court after consultation with the Chief Justice of
India.

A High Court Judge retires at the age of 62 years, but can be

removed at any time by the President for misbehaviour or
incapacity by an address in both the Houses of the Parliament.

A Judge of the High Court after retirement should not practice

or act in any Court or Authority except the Supreme Court or
other High Court.

 CASE LAW –

 UNION OF INDIA Vs. PRATHIBA BANNERJEE – AIR 1995

SC 342 –

It was held that a High Court Judge is not a Government

Servant and does not hold post under the Union or State.

There is no master and servant relationship between the

Government and the Judge. Judiciary can never be
subordinate to the State and hence, a Judge cannot be holding a
post under the Union or a State – a High Court Judge is
appointed by the President after Consultation with the Chief
Justice of India.

The Chief Justice of the High Court has power to appoint,

dismiss, suspend, remove or forcibly retire from service, an
Officer of the High Court. Such a Supreme Power is given to the
Chief Justice to safeguard the independence of the High Court.

 TRANSFER OF A JUDGE FROM ONE HIGH COURT TO

ANOTHER HIGH COURT (ARTICLE 222) –

The President, after consultation with the Chief Justice of India

can transfer a Judge from one High Court to any other High
Court. A Judge who goes on transfer to another High Court shall
get Compensatory Allowance.

In transferring a Judge from one High Court to another, the

consent of the Judge is not necessary. The essential

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requirement is that the President should make an effective
consultation with the Chief Justice of India.

Power of transfer of Judges must be exercised in Public

Interest and should not be by way of Punishment.

 JUDGES CASE – K.B.N. SINGH Vs. UNION OF INDIA – 1981

The Chief Judge of Patna High Court Shri. K.B.N. Singh was
transferred to Madras High Court. He challenged the order of
the President that it affects the Independence of Judiciary.

The Full Bench consisting of 7 Judges including the Chief

Justice of India by a Majority Judgment of 4:3 held that the
transfer was Valid and transfers without consent of the
concerned Judge were within the purview of Article 222 of the
Constitution of India.

However, the President must consult the Chief Justice of India

before effecting such transfer. The Chief Justice must consider
whether the transfer was in Public Interest or not.

 COURT OF RECORD –

High Court is a Court of Record and it has all the powers

including the power to punish for Contempt of High Court and
other subordinate Court.

 JURISDICTION OF HIGH COURT –

1. According to Article 225, the High Court has got original

Jurisdiction in Revenue Matters.

2. The High Court exercises Supervisory Jurisdiction for all its

Subordinate Courts including Statutory or Judicial
Tribunals within its territory.

3. The High Court has the power to withdraw any case from a
Subordinate Court which involve a Substantial question of
law as to the interpretation of the Constitution.

4. The High Court have Writ Jurisdiction u/ Article 226.

5. The High Court Judgments have got the Rule Making Power
i.e. act as Precedent.

6. The High Court also acts as an Appellate Court in Civil,

Criminal and Personal Law Matters.

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 - TRIBUNALS -

 STRUCTURE, POWERS AND FUNCTIONS OF TRIBUNALS

(ARTICLE 323-A AND 323-B) –

 INTRODUCTION –

Under the 42nd Amendment, 1976, Article 323-A and Article

323-B were added to the Constitution. Article 323-A provides for
the Establishment of Administrative Tribunals by Parliamentary
Law for Settlement of Disputes relating to Recruitment and
Conditions of Service of Government Servants under the Union
and the States.

Article 323-B provides for the Establishment of Tribunals for

determining disputes, complaints and offences relating to Tax,
Exports and Imports, Labour and Industrial Disputes, Service
Matters, Supply of Essential Commodities, Elections to the
Parliament and the State Legislature.

 ADMINISTRATIVE TRIBUNALS FOR SERVICE MATTERS

(ARTICLE 323-A) –

The Parliament provides for a Tribunal for the Union and a

Separate Tribunal for each or two or more States. The Tribunal
adjudicates or tries disputes and complaints relating to the
Recruitment and conditions of Service of Government Servants.

It also includes the Employees of any Local or other

Authority within the territory of India or under the Control of
the Government of India or Corporation owned or controlled by
the Government.

The Law also makes provisions for -

1. The Jurisdiction and Power to be exercised by the above

Tribunals.

2. Exclusion of Jurisdiction of all Courts except the Supreme

Court.

3. The Procedure to be followed by the Tribunal.

4. All Cases pending before any Court should be transferred to

the Tribunal.

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 5. All other Relevant Provisions for the Effective Function of
such Tribunals, and Speedy Disposal of Cases by such
Tribunals.

 TRIBUNALS FOR OTHER MATTERS (ARTICLE 323-B) -

Article 323-B empowers Parliament and State Legislatures

for Establishing Tribunals for adjudication of disputes,
complaints or offences regarding the following matters -

1. Levy, Assessment, Collection and Enforcement of any

Tax.

2. Foreign Exchange and Import and Export.

3. Land Reform Act.

4. Industrial and Labour Disputes.

5. Election Disputes of Members of Parliament.

6. Production, Procurement, Supply and Distribution of

Foodstuffs.

 EXCLUSION OF JURISDICTION OF COURTS –

The Jurisdiction of all Courts except the Supreme Court was

Excluded on all matters referred in Article 323-A and Article
323-B. Thus, the Writ Jurisdiction of the High Court u/Article
226 is also deprived, in matters specified in these Articles.

Though the Writ Jurisdiction of the High Court under Article

226 has been Excluded, an aggrieved party can go to the Supreme
Court u/Article 136 and 32 of the Constitution of India.

The OBJECT of the Establishment of the Tribunals is to

remove hurdles in the implementation of the Laws providing
for Socio-Economic Reforms.

 COMPOSITION OF THE TRIBUNAL –

The Tribunal consists of a Chairman, required number of Vice-

Chairmen, Judicial and Administrative Members.

The Chairman constitutes a Single Member Bench for certain

Classes of Cases and a Bench of Two Members in Special Cases.
The Chairman may transfer Vice Chairman or other Members from
one bench to another bench.

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  QUALIFICATIONS AND TERM OF THE MEMBERS –

 The QUALIFICATIONS of a Chairman are –

1. He must be a Sitting or Retire Judge of a High Court or

2. He must have the Office of Vice-Chairman for two years

or the Post of a Secretary of the Government of India for
two years.

 The QUALIFICATION of a Vice Chairman are –

1. He should be a Judge of High Court or

2. He should have held the Post of Secretary to the

Government or any other Post carrying the same pay
scale under the Central and State Government.

3. He must have held the Post of an Additional Secretary to

the Government of India for five years.

 The QUALIFICATION of an Administrative Members are –

1. He must have held the Post of an Additional Secretary to

the Government of India or other equivalent post for
atleast two years or

2. He must have held the Post of a Joint Secretary to the

Government of India or

3. He must have adequate Administrative Experience.

The President appoint the Chairman, Vice Chairman and

other Members. The Judicial Members are appointed by the
President with the consultation with the Chief Justice of India.

In the Tribunal for a State, the President appoints them in

consultation with the Governor of the State.

The term of office for a Chairman and Vice-Chairman is five

years or till he attains 65 years and for other members, five
years or till the age of 62 years, whichever is earlier.

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NOTE NO. 6 II SHRI SAI II

THE CONSTITUTION OF INDIA - II

© ALL RIGHTS RESERVED – No part of this notes may be
reproduced, stored in a retrieval system, or transmitted, in
any form or by any means, electronic, mechanical,
photocopying, recording or otherwise without the prior
permission of the author)

-----------------------------------------------------------------------------------

 RELATION BETWEEN UNION AND THE STATE –

 LEGISLATIVE RELATIONS BETWEEN UNION AND THE

STATE (ARTICLE 245 TO 255) –

 INTRODUCTION –

One of the most important features of Federalism is

distribution of Powers between the Centre and the State. The
Distribution of Legislative Power is the most important one
because the Law Making Powers between the Centre and the
State are essential for the proper administration of the Country.

The Indian Constitution provides elaborate provisions from

Article 245 to Article 253 regarding the Distribution of
Legislative Powers. Indian Constitution has adopted these
legislative powers from other Countries like U.K., Canada, Swiss,
etc.

The Distribution of Legislative Powers is two fold under the

Constitution. They are-

1. With respect to Territory.

2. With respect to subject-matter.

 DISTRIBUTION OF LEGISLATIVE POWERS –

1. WITH RESPECT TO TERRITORY –

The Legislative Powers may be on the basis of the

territory. Thus, the Parliament may make law for the Whole or
any part of the Country.

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 2. WITH RESPECT TO SUBJECT-MATTER –

In India, there are Three (3) Lists, namely –

i. Union List.

ii. Concurrent List.

iii State List.

i. UNION LIST –

It contains 95 Subjects. Only the Parliament (i.e. Central

Legislature) has the right to enact Law this list. These Subjects
are of National Importance namely Defence, foreign Affairs,
Currency, Military, Naval and Air Force, War and Peace,
Railways, Posts and Telegraphs etc.

ii. CONCURRENT LIST –

It contains Some Subjects. Here both the Central and State

Legislature can enact Laws. It is a Common Field like Education,
Tax Law, Health, Trust etc.

iii. STATE LISTS –

It contains 66 Subjects. Only State Legislature can enact

Laws as per this list. These Subjects are of Local Importance
like Public Health, Agriculture etc.

RESIDUARY POWER –

If any Subject is not found in any of the above Lists, then

only Parliament i.e. Central Legislature can enact Laws in such
Subject, it is called as "Residuary Power of Parliament".

IN CASE OF CONFLICT BETWEEN LISTS –

Though the Division of Subjects under the Three Lists is not

Scientific or Mathematical, it is on the basis of Common Sense
and Adequate Knowledge. Sometimes, there may be Conflict
between the Central and State Legislature on the Three Lists.

In case of Conflicts between Union Lists and Concurrent

Lists, the Union Lists will Prevail. In case of Conflict between
Concurrent List and State Lists, the Concurrent List will
Prevail.

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 Generally, Union List should not interfere with the State List
and vice versa.

 UNION LIST - Article 246 (1) and Schedule 7 –

Parliament has Exclusive Power to make Laws with respect

to any of the matter include in the Union List-

i. Defence of India and every part thereof including

preparation for defence in time of war and dissolution
after war.

ii. Naval, Military and Air-force works.

iii. Arms, Fire arms, Ammunition and Explosives.

iv. Atomic Energy and Mineral Resources necessary for

its production.

v. Central Bureau of Intelligence and Investigation.

vi. Foreign Affairs.

vii. Trade and Diplomatic Representation

viii. United Nations Organisation.

ix. Citizenship.

x. Pilgrimages to places outside India.

xi. Railways.

xii. Highway and National Highways.

xiii. Shipping and Navigation.

xiv. Hospitals.

xv. Airways, Aircraft and Air Navigation

xvi. Posts and Telegraphs, telephones, broadcasting etc.

xvii. Foreign Loans.

xviii. Reserve Bank of India etc……

 CONCURRENT LIST – Article 246(2)

Parliament i.e. Central Legislature and Legislature of any

State have powers to make Laws with respect to any of the

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Subject-matters include in the Concurrent List, the main matters
are as follows-

i. Criminal Procedure.

ii. Civil Procedure

iii. Preventive detentions regarding removal from one

State to another State of prisoners and accused
persons.

iv. Marriage and Divorce, Minors, Adoptions, Wills,

Succession, Joint Family and Partition.

v. Transfer of Property of any Land.

vi. Contracts including Partnership, Agency and Other

Contracts etc.

vii. Insolvency.

viii. Trust and Trustees.

ix. Contempt of Court but not including contempt of the

Supreme Court.

x. Lunacy and mental deficiency.

xi. Prevention for Cruelty to animals.

xii. Protection of wild animals and birds.

xiii. Adulteration of food and other goods.

xiv. Drugs and poisons.

xv. Economic and Social Planning.

xvi. Welfare of Labour including conditions of work,

provident funds, employers, liability.

xvii. Education, including technical education, medical

education medical education and Universities.

xviii. Factories.

xix. Electricity.

xx. Stamp Duties etc.

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  STATE LIST – Article 246 (3)

The Legislature of any State has Exclusive Powers to make

Laws for such State with respect to any of the matters include in
the State List, they are as follows-

i. Public Order.

ii. Police (including Railway and Village Police)

iii. Officer and Servant of High Court, Procedure in

Revenue Court, fees taken in all Courts except
Supreme Court.

iv. Prisons, Reformatories and other Institutions.

v. Local Governments i.e. Municipal Corporation,

District Boards, Local Authorities.

vi. Public Health and Sanitation, hospitals and

dispensaries.

vii. Pilgrimages other than pilgrimages to places outside

India.

viii. Intoxicating Liquors that is to say production,

manufacture, possession, transport, purchase and
sale of intoxicating liquors.

ix. Relief of the disabled and unemployable.

x. Burials and burial grounds.

xi. Libraries, Museums, and other similar institutions

controlled or financed by the State.

xii. Communication that is to say roads, bridges, etc.

xiii. Agriculture, including agricultural education and

research etc.

xiv. Water that is to say water supplies, irrigation and

canals, drainage etc.

xv. Land and Land Revenue, tax on agriculture income

etc.

xvi. Gas and Gas works

xvii. Trade and Commerce within the State

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 xviii. Industries

xix. Fisheries

xx. Theatres and dramatic performances

xxi. Salaries and allowances of Ministers for the State.

xxii. Tolls etc.

 DOCTRINE OF COLOURABLE LEGISLATION -

Doctrine of Colourable Legislation means a Legislature

cannot do directly, it cannot do indirectly also.

Article 246 makes law into 3 divisions-

1. Union List – The Central Legislature is only empowered

to make law as per the list.

2. Concurrent List – The Central Legislature as well as

State Legislature are empowered to make laws as per
this list.

3. State List – The Legislature of any State is empowered

to make the laws on any subject mentioned in the State
List.

The Object of the distribution of Legislative Powers

between the Union and the States is to see that no conflicts
should arise between these two constitutional bodies and an
amicable atmosphere should maintain throughout the country
and our Union should be made strong.

The whole Doctrine of Colourable Legislation is based upon

the maxim that, "Legislature cannot do directly, it cannot do
indirectly also".

Sometimes, a Legislation may seem to obey the

Constitution outwardly but actually or in true colour, it may
violate the Constitution.

Such Violation is not direct, but it is indirection and

intentionally.

Such Legislation are void because they try to cheat the

public by indirect transgression, the following Case-laws will
illustrate this point –

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  CASE LAW –

 KAMESHWAR SINGH Vs. STATE OF BIHAR –AIR 1952

SC 252 –

The Bihar Land Reforms Act, 1950 externally seemed to

provide Principles for Compensation when a private party is
deprived of his lands, but in true colour it did not provide for
any compensation.

Hence, the Supreme Court held that the Act was void and
unconstitutional.

 CASE LAW –

 KALABATTI NARAYAN Vs. STATE OF ORISSA – AIR

1953 SC 375 –

The Doctrine of Colourable Legislation was first applied in

case. The Supreme Court held that wolf could not cloth itself
with a cow’s skin and hence, any disguise will be exposed and
the true colour would be brought to light.

 DOCTRINE OF REPUGNANCE OR REPUGNANCY

BETWEEN A CENTRAL LAW AND STATE LAW (ARTICLE
154(1)) –

If any provision of law made by the Legislature of the State

is repugnant to any provision of a law made by Parliament or to
any provision of the existing law with respect to the matters
mentioned in the Concurrent List, then the law by the
Parliament shall Prevail.

The Law made by the Legislature of State shall be void to the

extent of the repugnancy.

Repugnancy arises between the two statutes in the following

circumstances –

1. There should be Clear and Direct Inconsistency between the

two Acts i.e. Central Act and State Act and they should be
irreconcilable.

2. If the two Acts occupy a particular field without coming into

collusion with each other, there is no repugnancy.

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 3. If a Statute occupying the same field create distinct and
separate offences, without inconsistency, then there is no
repugnancy.

There is one Exception to the Rule of Repugnancy – if the

State law which is repugnant to the law of Parliament receives the
assent of the President, then shall prevail irrespective of the
repugnancy.

But the Parliament may still override such a law by making

a law on the same matter subsequently.

 PRINCIPLE OF OCCUPIED FIELD -

When the Union Legislatures makes a law on a particular

subject and thereby Occupies that field, the State Legislature
have no power to enact any law in that field.

If a State Legislature enacts a law in that field, such

legislation would, to that extent, become Unconstitutional. In
India, the Constitution grants specific areas of legislation to the
Union Legislature and the State Legislatures in the form of
Union List and State List.

One cannot encroach upon the Powers of the other. It is the

Concurrent List, where both the Union Legislature and the State
Legislature have been empowered to enact laws.

If any provisions of a law made by the State Legislature is

repugnant to any provision of law made by the Union
Legislature, the law made by the State Legislature shall, to the
extent of the repugnancy, be Unconstitutional and Void.

 PRINICIPLE OF PITH AND SUBSTANCE –

The Union Legislature namely the Parliament is Supreme in

the Union List and the State Legislature is Supreme in the State
List. It is, therefore, necessary that one should not encroach in
the list reserved to the other.

If any law passed by the Union Legislature encroaches

upon the State List, the Court will look into the Pith and
Substance of the law i.e. the true object of legislation and check
whether it is within its list.

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 Sometimes the legislation passed by the Union Legislature,
though in pith and substance, within its own Union List,
incidentally may cross or stretch or touch on matters falling
within the State List.

Such incidental crossing or touching does not make the

Union Legislation Unconstitutional, provided the pith and
substance of the law is in the Union List.

Similar Rule is applicable to State Legislature also. If the

State Legislature enacts a law in the State list and in pith and
substance, if the law is within the State List, but such law
incidentally crosses or touches on the matters in the Union list,
it is not Unconstitutional.

Thus, if an enactment substantially falls within the law-

making powers of one legislature as conferred by the Constitution,
then it does not become invalid merely because it incidentally
touches upon subjects within the domain of another legislature.

 CASE LAW –

 STATE OF BOMBAY Vs. F.N.BALSARA

The State Legislature enacted the Bombay Prohibition Act,

1949 under Entry 8 of the State List relating to ‘Intoxicating
Liquors’.

It was challenged on the ground that it was a Union

Subject under Entry 41 of the Union List relating to ‘Import
and Export across Customs Frontiers’.

The Act was held to be valid even though it had an

incidental effect on the Power of the Union List.

 CASE LAW –

 PRAFULLA KUMAR MUKHERJEE Vs. BANK OF

COMMERCE, KHULNA –

In this case, the Bengal State Government enacted Bengal

Moneylenders Act under the State list. It was challenged as
Unconstitutional by Central Legislature as it encroached upon
the Central subject namely, ‘Promissory Note’.

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 The Supreme Court held that Bengal Moneylenders Act
was in pith and substance, the law in the State list and hence,
not Unconstitutional..

Clear cut division of Legislative Powers was not possible

and the areas provided under the three lists were bound to
overlap.

Once the Pith and Substance of the Legislation is

determined, the extent of Invasion outside its purview cannot
make the law Invalid.

 POWER OF THE UNION LEGISLATURE TO ENACT LAWS

IN THE STATE LIST -

Under the following Five Circumstances, the Union

Legislature can enact laws in the State List. Though this Power
of the Union Legislature violates the Principles of Federalism, it
is inevitable under certain circumstances.

They are –

1. NATIONAL INTEREST (ARTICLE 249) –

The Union Legislature can enact laws for the Whole or any
part of India in all matters of National Interest. It must be
passed by 2/3 Majority in both the Houses of Parliament. The
Law is valid for One Year. It can be renewed for a period not
exceeding one year.

2. EMERGENCY (ARTICLE 250) –

During the Period of Emergency, the Union Legislature can

enact laws in all matters in the State list. It becomes invalid
after six months of cessation of Emergency.

3. WITH THE CONSENT OF THE STATE (ARTICLE 252) –

With the consent of two or more States, the Union

Legislature can enact laws in the State list. Such laws are
applicable only to the Consenting States. They can be amended
only by the Union Legislature.

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 4. GIVING EFFECT TO INTERNATION AGREEMENT
(ARTICLE 253) –

Parliament can pass laws for any part of territory for

implementing any treaty or agreement with other countries on
subject in the State List etc., labour legislation, uplift of Women
and Children.

5. CONSTITUTIONAL BREAKDOWN IN THE STATE

(ARTICLE 256) –

When there is a Constitution breakdown in a State, the

Parliament can enact law for all the subjects in the State List.

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 RELATION BETWEEN UNION AND STATE –

 ADMINISTRATIVE RELATION BETWEEN THE UNION

AND THE STATES – (ARTICLE 256 TO 263) –
DISTRIBUTION OF EXECUTIVE POWERS –

 INTRODUCTION –

In a Federal System both the Centre and State are

Independent in the Administrative System. The Union
Government giving directions to the State is opposed to the
Principles of Federalism.

However, Indian Constitution from Article 256 to 263

provide for the issue of Administrative directions by the Union
to the States.

The Indian Constitution empowers the Union to give

directions to the State Government in the Administrative side.

The following are the Provisions –

1. Every State Administration must obey the laws enacted by

the Parliament.

2. The Union is empowered to give directions to the State to

comply with the Parliamentary laws.

3. The State Executive should not act so as to affect the

Executive Machinery of the Union. For achieving this
purpose, the Union can give directions.

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 4. The Union gives directions to the State Government to
construct and maintain the means of communication
which are all of Military and National Importance.

5. The Union can give directions for the measures to be taken

to protect the Railways in the State.

6. The Union can declare Waterways and Highways as National

Waterways and Highways for the purpose of Naval, Military
and Air forces.

7. The Union can give directions to the States to secure the

facilities for giving instruction in mother tongue in the
primary schools for the linguistic minorities. FOR
EXAMPLE – Anglo Indian Schools.

8. The Union can give directions to the States to secure the

Execution of Union Schemes (20 Points Programme) for
the welfare of the most Backward Classes of the State.

9. The Union give directions to secure the development of the

Hindi Language.

10. During Emergency, the Union can use the Executive

Machinery of the State.

11. If the State Government does not obey the Union’s

directions, then the President can declare Emergency and
dissolve the State Assembly i.e. President’s Rule will be
immediately enforced.

 DIRECTIONS BY THE CENTRE TO THE STATE –

In the following Four Circumstances, the Centre exercises

control over the States in the Administration -

1. DELEGATION OF AUTHORITIES TO STATES –

The Constitution authorises the Parliament to delegate its

Power to the State -

i. The President can delegate or send his Union Officers to

the State Government with its consent Conditionally or
Unconditionally.

ii. The Parliament can confer Powers on the Union Executives

and impose duties on the Executive Machinery of the
States.
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 iii. The President’s Delegation Authority has the same
force as that of the Parliament. But the President cannot
delegate Judicial or Legislative Functions but only
Executive Functions.

2. ALL INDIA SERVICE –

Our Constitution provides for the creation of All India Services

for both the Union and the States. The Rajya Sabha must pass a
Resolution with 2/3rd Majority for the creation of such All India
Services.

This is for Inter State Co-operation and implementation of

the Policy of the Centre through their officers working in the
State.

Thus, the Union Government through I.A.S. – Indian

Administrative Service, I.F.S. – Indian Forest Service, I.P.S. –
Indian Police Service and other Officers exercises its control over
the State Government.

3. FULL FAITH AND CREDIT CLAUSE –

To every Public act, records and Judicial Proceedings of Union

and State, Full faith and Credit must be given, throughout the
territory of India. FOR EXAMPLE – A Civil Court Judgment
passed in one part of India can be executed in anywhere in
India. It must be obeyed under Full faith and due Credit given to
it.

4. GRANT IN –AID –

The Central Government can grant aids to the State Government

in times of Financial Stress in any State territory. FOR
EXAMPLE – to Maharashtra because of floods. If a State
Government does not agree to the conditions of the Central
Government, the aid will not be granted.

 RIVER WATER DISPUTE –

Any inter-state dispute regarding the use, distribution or

control of the waters in the inter-state river or river valley, may
be adjudicated by the law provided by the Parliament. The
Parliament also bar the jurisdiction of the Supreme court and
any other Court in such disputes.

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  COUNCIL FOR CO-ORDINATION BETWEEN STATES –

If the President finds it necessary, he may establish a

Council to inquires into disputes which arose between the
States, and also to investigate and discuss matters of common
interests between the States, and for recommending co-
ordination between the States regarding any subject.

The Organisation of the Council, Procedure and nature of

Duties are also defined by the President.

As per the Inter-State River Water Dispute Act, 1956, the

“Water Dispute” means any dispute or difference between two or
more State Governments with respect to –

i. The Use, Distribution or Control of Waters of, or in any

inter-state river or river valley; or

ii. The Interpretation of terms of any agreement relating to the

use, distribution or control of such water or the
implementation of such agreement; or

iii. The levy of any water rate.

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NOTE NO. 7 II SHRI SAI II

THE CONSTITUTION OF INDIA - II

© ALL RIGHTS RESERVED – No part of this notes may be
reproduced, stored in a retrieval system, or transmitted, in
any form or by any means, electronic, mechanical,
photocopying, recording or otherwise without the prior
permission of the author)

-----------------------------------------------------------------------------------

 FINANCIAL RELATIONSHIP BETWEEN UNION AND THE

STATES (ARTICLE 264 TO 291) –

 INTRODUCTION –

Finance is the best tonic for the successful functioning of a

Federation. It is the pumping apparatus. It infuses the life blood
to the body of the federation. If it is irregular or
disproportionate, then the federation will be reduced to a
skeleton.

In the American Federation, there is always a tussle between

the Centre and the States over the right to tax the public.
There is the burden of double taxation.

In India, most of the tax collected by the Union is either

allotted to the development of the State territory or for the
Welfare of the public. The Procedure of taxation has no clear
distinction and there is always mutual crossing over between the
Centre and the States.

Article 265 imposes a limitation on the taxing power of the

State. It provides that no tax can be levied or collected except by
the Authority of Law.

It means that tax cannot be Collected by an Administrative

Order. Such taxation should not violate any provision of the
Constitution especially the Fundamental Rights.

 DIFFERENCE BETWEEN TAX AND FEE –

A Tax and a Fee are not the same thing. Tax is levied for the
Public at large. The Money collected from a tax payer does not
help him directly in any way.

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 It goes to the Consolidated Fund of India and it is used for the
general Welfare of the Public. There is no direct return to the
tax payer. In other words, there is no quid pro quo i.e. something
in return.

A Fee is a Specific Charge for some direct services rendered.

There is quid pro quo and the fee payer gets some special
services or treatment. FOR EXAMPLE – Payment of College
Fees, Payment of any License, etc.

A Fee does not go to the Consolidated Fund of India. It is not

used for the Welfare of the Public.

 DISTRIBUTION OF TAX BETWEEN THE CENTRE AND THE

STATES –

The Tax Structure between the Union and the State can be
classified under the following headings –

1. Taxes belonging to the Union only.

2. Taxes belonging to the State only.

3. Taxes levied by the Union but collected and used by the

State.

4. Taxes levied and collected by the Union, but assigned to

the State.

5. Taxes levied and collected by the Union but distributed

between the Union and the States.

1. TAXES BELONGING TO THE UNION ONLY –

The Corporation Tax and Customs, Income Tax, Newspaper

purchase and Sales Tax, Railway and Air passengers Tax etc., are
exclusively levied, collected and used (appropriated) by the
Union. The State cannot question the validity of such taxation
levied by the Union.

2. TAXES BELONGING TO THE STATE ONLY –

The Land Revenue, Estate Duty, Electrical Taxes,

Professional Taxes, Vehicle Taxes, Transport of Passengers Tax,
Taxes on Entertainment etc., are levied, exclusively by the
States. The Collected Tax is used by the State Governments.

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 3. TAXES LEVIED BY THE UNION BUT COLLECTED AND
USED BY THE STATES –

The Stamp Duties regarding Negotiable Instruments, the

Taxes on Medicines and Toilet items and Liquor, are levied by
the Union Government but the taxes are collected and used by
the State Government for the Welfare Schemes.

4. TAXES LEVIED AND COLLECTED BY THE UNION BUT

ASSIGNED TO THE STATES –

The Urban Land Tax, Goods Train Tax, Advertisement Tax,

Stamp Duties, Taxes on Inter-State Trade and Commerce are
levied by the Union exclusive but such collected tax is wholly
assigned to the State for Welfare Schemes.

5. TAXES LEVIED AND COLLECTED BY THE UNION BUT

DISTRIBUTED BETWEEN THE UNION AND THE STATE –

All Income Taxes except the Agricultural Income Tax are

levied and collected by the Union. The Proceeds are divided
between the Union and the States in a particular ratio. It is used
for the Welfare Schemes of the Union and the States.

Apart from the above Five Classifications, there are two more
Financial Aids to the State Government, they are -

a. Surcharge Duties.

b. Grants in-aid.

a. SURCHARGE DUTIES –

The Parliament is authorised to levy ADDITIONAL TAX over

the State Taxational Subjects. The Surcharge Proceeds form
part of the Consolidated Fund of India. In many cases, the
Collected amount is assigned to the States.

b. GRANTS IN- AID –

Though the tax structure clearly show that most of the

Collected Taxes are used by the States only, it is insufficient
for the welfare schemes of the States. So, under Contingent

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 Circumstances, Grant in-aid is assigned to the States by the
Union -

1. Yearly grants in-aid are made to the State of Assam, Bihar,

Orissa and West Bengal, because of the Export Duty of Jute
realised by the Union Government.

2. The Rest of the State do not have this privilege of

assignment of yearly grants in-aid. They are made whenever
they are in need of assistance. FOR EXAMPLE – Floods,
drought, etc.

3. For the Promotion of Schedule Castes and Scheduled

Tribes, the Union makes grants in-aid to the State
Government to meet the Expenses on such Schemes.

 FINANCE COMMISSION –

The Finance Commission was appointed by the President in

1952. The Commission consists of a Chairman and Four other
Members all appointed by the Chairman. The Finance
Commission has the following Functions –

1. It makes recommendation on Tax Distribution between

Centre and States.

2. It formulates principles for assignment of grant-in-aid.

3. It advises on any financial matter referred to it by the

President of India.

 SARKARIA COMMISSION –

The Sarkaria Commission was appointed by late Prime

Minister Smt. Indira Gandhi to review Centre-State Relationship
and to suggest any change in the existing set up if necessary.
The recommendations must be well within the Constitutional
provisions.

The Cause of appointing the Commission was the strenuous

relationship between the Centre and the State, which started in
1967.

In 1967, the Congress party lost elections in 9 States and the

opposition parties formed Coalition Governments. In 1977, in
the Centre, Janata Party formed the Government, defeating
Congress.

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 The Janata Government dismissed Congress Ministers in 9
States. So, in 1978, a Congress member moved a request for
review of Centre-State relationship.

But, the then Prime Minister Mr. Morarji Desai rejected the
demand for the review on the ground that a Strong Centre was
necessary to keep the Country United.

Subsequently when the Janata Party was defeated in 1979

then 9 Janata Party Ministers were dismissed by the Congress
who came to power.

The Demand for Provincial Autonomy, more powers and

funds for the States become strong. This created the need for
the appointment of Sarkaria Commission especially when both
the Janata and Congress Party used Article 356 to dismiss
popular Ministers in the States in 1977 and 1979.

 RECOMMENDATIONS OF THE COMMISSION –

The Commission expressed the view that a drastic change in

the power of the Centre is not necessary and it upheld that there
should be Supremacy of the Constitution.

1. The Commission suggested that the Residuary Powers other

than taxation should be in the Concurrent List and reject
the suggestions asking the transfer of subjects to the
State or Concurrent list.

2. It also suggested that the Centre should consult the State

on all Concurrent Subjects before passing any law.

3. It recommended for Inter-State Council under Article 263

and the provisions are in accordance with the Constitution,
for ensuring the Unity and Integrity of the Country.

If the Centre is weak, the Nation will be weak and shall be

endangered by the attack by the enemies.

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  SERVICES AND PUBLIC SERVICE COMMISSION (ARTICLE
308 TO 323)

 INTRODUCTION –

For the progress of a Country an efficient Administrative

machinery is a vital one. The person under the Services of the
Government must be free from Political so that they may
discharge their functions efficiently and without fear or favour.

Article 309 of the Indian Constitution empowers the

Parliament to make Regulations regarding Recruitment and
Conditions of Service of the Government Servant. Under this
provision the UPSC and other State Commissions were appointed
for the Recruitment of Civil Servants.

There are two kinds of Rules. They are –

1. DIRECTORY RULES –

They are not enforceable but are only guidelines. FOR

EXAMPLE – Rules regarding Dearness Allowance, Seniority in
Promotion, etc., which cannot be claimed rightfully.

2. MANDATORY RULES –

They are always enforceable. Though they may relate to

matters of Government Service, they are Mandatory. Though
the Government Service arises by a Contract, after appointment,
his Rights and Obligations are not determined by Consent of
both parties but by Status or Statutory Rules which govern his
employment.

But the Government cannot alter the Service Conditions by

changing the Rules Retrospectively.

 “DOCTRINE OF PLEASURE” –

In England, every Civil Servant holds his post at the Pleasure of

the Queen. His Services can be terminated at any time by the
Crown, without assigning any reason.

He cannot even claim arrears of Salary. This is called

“Doctrine of Pleasure” which is based on Public Policy.

Article 310(1) of the Indian Constitution incorporates this

doctrine. It provides that all persons of Civil and Defence
Services hold their posts during the pleasure of the President.
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 In the same way, in India, the persons of State Services hold
their posts during the pleasure is not arbitrary as in England. It
is subject to the following RESTRICTIONS –

1. This doctrine is subject to Article 311 of the Constitution. It

provides procedural safeguards to the Government Servants
before Dismissal or Removal from Service.

2. The Doctrine is not applicable to the post of Supreme

Court Judges, High Court Judges, Auditory-General of
India, Chief Election Commissioner and Chairman and
Members of the Union and State Public Services
Commissions.

These Posts are excluded from the operation of the Doctrine of

Pleasure.

The Doctrine cannot violate Fundamental Rights.

 CONSTITUTIONAL SAFEGUARDS TO CIVIL SERVANTS

(LIMITATIONS TO THE DOCTRINE OF PLEASURE) –

The following are the types of limitations to the “Doctrine of

Pleasure” and Safeguards available to Civil Servants –

1. JUSTICIABLE LIMITATIONS –

 PROCEDURAL LIMITATIONS – ARTICLE 311 – CLAUSES (1)

AND (2) –

This is the most important Restriction on the Doctrine of

Pleasure. Article 311 provides important Safeguards to Civil
Servants against arbitrary dismissal from their posts.

1. Person holding a Civil Post cannot be dismissed or removed

by an Authority inferior to the Authority who appointed
him.

In other words, the dismissing authority must be

equivalent in rank to the authority appointing Civil Servant
or should be of a Higher Rank.

2. Before dismissal or removal of a person holding a Civil Post,

he must be enquired about the Charges against hime.

In such enquiry, he must be informed of all the

Charges against him. He must also be given reasonable
opportunity of being heard in respect of the Charges.
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 3. He must be given opportunity to make representation
against the action proposed to be taken against him after
such enquiry.

Section 311 does not apply to Defence Personnel or

even to employee in Defence Service. They are governed by
the Army Act.

 “REMOVAL” “DISMISSAL” OR “REDUCTION IN RANK”-

means Punishment should be there and Stigma should be

attached, otherwise Article 311 is not applicable.

“Stigma” means Findings of Misconduct, adverse entries of

the employee in Character Roll, Bad Reports, etc., are Stigma
band unless there is Stigma attached termination of service does
not become “Dismissal” or “Removal”.

 CASE LAW –

 N. RAMANATHA PILLAI Vs. STATE OF KERALA –AIR 1973

SC 2641 –

It was held that though Abolition of a Post results in

termination of service, it is not dismissal or removal as there is
not Personal Penalty against the Civil Servant.

 MAHESH PRASAD Vs. STATE OF UTTAR PRADESH – AIR

1955 SC 70 –

Mahesh was appointed by the Divisional Personal Officer and

he was dismissed by the Superintendent of the same
department.

The Court held that the Dismissal was valid because both
Officers were of the same Rank.

2. CONDUCT OF ENQUIRY (GRANTING OF REASONABLE

OPPORTUNITY) –

Before a dismissal or removal or reduction in rank, an Enquiry

must be conducted in respect of the Charges. In this Enquiry
Stage, the Principle of Natural Justice must be followed.

Enquiry consists of Framing of Charges, demanding of

Explanation and recording of Oral and Documentary Evidence.
The Charge must be precise, accurate and clear and Personal
Hearing must be conducted.
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  CASE LAW

 SHYAM LAL Vs. STATE OF UTTAR PRADESH – AIR 1954

ALL 235

A person name Shyam Lal was compulsorily made to retire

from service under the Compulsory Retirement Scheme.

He challenged the Order of the Compulsory Retirement on

the ground that he was not given Reasonable Opportunity to be
heard.

The Court held that the Compulsory Retirement does not

amount to dismissal or removal from service and so Reasonable
Opportunity need not be given.

 CASE LAW

 J.N.SINHA Vs. UNION OF INDIA –AIR 1971 SC 40 –

The Services of Sinha were terminated under the

Compulsory Retirement Scheme.

He challenged the Order on the ground that it violated the

Principles of Natural Justice.

The Supreme Court held that the Natural Justice has no

place when there is a clear Provision of Law in the
Constitution.

 CASE LAW

 HUKUM CHAND KHUNDIA Vs. CHANDIGARH

ADMINISTRATION – 1995 SCC (6) 534 –

It was held that termination of Service of temporary

employee without Department Enquiry where Service Record
was unsatisfactory was not Arbitrary or Violative of Article 311.

 SUBSTANTIVE LIMITATIONS –

There are the Fundamental Rights mentioned in the Indian

Constitution. Employee cannot Waive Fundamental Rights and
the Doctrine of Pleasure has to give due weight to the
Fundamental Rights.

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  TEMPORARY GOVERNMENT SERVANTS –

1. Article 311 is not applicable to Temporary Services or a

Probationer. Their services can be terminated under the
Rules of Employment.

2. If the Order affects his Character, it is a way of punishment

and Article 311 is applicable in such cases.

3. In case of Departmental Enquiry like Charge Sheet being

submitted, explanation called for, and Enquiry Officer
being appointed, Article 311 is applicable.

 PUBLIC SERVICE COMMISSIONS OF THE UNION AND THE

STATES (ARTICLE 315 TO 323) –

The Constitution provides for the establishment of a Public

Service Commission for the Union and for each State. Two or
more states may agree to have a Common Public Service
Commission.

The Chairman and Members of the Union Service

Commission or a Joint Commission are appointed by the
President and in case of a State Commission by the Governor.

A Member of Public Service Commission shall hold office for a

period of 6 years or Age of 65 years in case of Union
Commission and 62 years in case of State Commission,
whichever is earlier. A member may himself Resign from his
office.

He may also be Removed from his office by order of the

President, on the ground of Insolvency or engagement in any
paid employment outside his duty or is unfit to continue in office
due to infirmity of mind or body or misbehaviour.

On reference made by the President, the Supreme Court, after

enquiry report to the President that he should be removed.

 FUNCTIONS OF UNION AND STATE PUBLIC SERVICE

COMMISSIONS –

It shall be the duty of the Union and State Public Service

Commission to conduct Examination for appointments. The
Union or State Commission must be consulted –

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 1. In all matters relating to Methods of Recruitment to Civil
Post.

2. On the Principles to be followed in making Appointments,

Promotions and Transfers and the suitability of Candidate.

3. On Disciplinary Matters affecting a person in Service under

the Central or State Government.

4. On any claim by such a person for the Expenses incurred,

in defending legal proceedings instituted against him in
respect of acts done in the execution of his duty.

5. On any claim for Compensation in respect of injuries

sustained by a person while serving the Government.

In all above matters, it shall be duty of the

Commission to advice.

The Commission need not be consulted as regards the

Reservation of Posts for Backward Classes, Scheduled Caste and
Scheduled Tribes.

The Commission shall submit an Annual Report on the work

done by them to the President or the Governor, as the case may
be. The Reports are to be laid before the Parliament and the
State Legislature.

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NOTE NO. 8 II SHRI SAI II

THE CONSTITUTION OF INDIA - II

© ALL RIGHTS RESERVED – No part of this notes may be
reproduced, stored in a retrieval system, or transmitted, in
any form or by any means, electronic, mechanical,
photocopying, recording or otherwise without the prior
permission of the author)

----------------------------------------------------------------------------------

 ELECTIONS AND ELECTION COMMISSION (ARTICLE 324 –

329) –

Article 324 provides for the appointment of a ELECTION

COMMISSION – to Superintendent, Direct and Control
Elections. The Election Commission is an Independent
Autonomous Body.

The Election Commission shall Consist of the Chief Election

Commissioner and such other Election Commissioners as the
President may fix from time to time. The Chief Election
Commissioner is appointed by the President.

The President may also appoint after consultation with Election

Commissioner, such Regional Commissioners necessary to
assist the Election Commission in its functions.

The Chief Election Commissioner can be removed from his

office in the same manner and on the same grounds as a Judge
of Supreme Court.

The Constitution thus secures the Tenure of Office of the

Chief Election Commissioner and other Commissioners. They
can therefore perform their duties without fear, favour, pressure
from the Executive or the party in power.

The Conditions of Service and Tenure of Office of the

Election commissioners and Regional Commissioners shall be such
as the President may by rule determine.


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  CASE LAW -

 T.N.SESHAN, CHIEF ELECTION COMMISSIONER OF INDIA

Vs. UNION OF INDIA - (1995)4 SCC 611 -

The Election Commissioners and Regional Commissioners

cannot remove from office during their tenure except on the
recommendation of the Chief Election Commissioner.

The Supreme Court held that the Chief Election

Commissioner should use his power of removing them only on
valid grounds, for the purpose of efficient functioning of the
Election Commission.

This Provision is with a view to safeguard the independence of

the Election Commissioners and Regional Commissioners.

The Supreme Court held that the Chief Election Commissioner

should use his power of removing them only on valid grounds, for
the purpose of efficient functioning of the Election Commission.

The Chief Election Commissioner cannot use his power as per

his Whim and Fancy because it will Curb the Independence of the
Election Commission and Regional Commissioner.

It was also held that –

a. The Election Commission could be a Multi Membered Body.

It is a Permanent Body with a Chief Election Commission.

b. The Election Commissioner ranks below the Chief Election

Commissioner and the Regional Commissioner ranks below
the Election Commissioner.

c. While transacting the business of Election Commission, if

unanimity of opinion is not attained, then the Rule of
Majority should prevail.

 FUNCTIONS OF ELECTION COMMISSIONER –

i. Conduct of all the above mention elections.

ii. The Superintendence, Directions and Control of the

Preparation of the Electoral Rolls for all Elections to
Parliament, State Legislatures and to the Offices of
President and Vice-President.

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 iii. Advising the President and the Governors on the
question of disqualification of any member of
Parliament or of Legislative Assembly.

iv. To Superintend, Direction and Control the above

mention Elections.

v. Appointment of Election Tribunals for deciding

doubts and disputes arising out of Election to
Parliament or State Legislature.

As per Article 325, there shall be One General Electoral Roll

for every Territorial Constituency and person shall not be
ineligible for inclusion in any such Roll on grounds only of
Religion, Race, Caste, Sex or any of them.

As per Article 326, the election to the Parliament and

Legislative Assemble are to be held on the basis of Adult Suffrage.

The following are the Essentials to be fulfilled by a Person

to be entitled to be Registered as a Voter -

i. He must be an Citizen of India

ii. He must not be less than 18 years of age and

iii. He should not be unsound.

iv. is not disqualified on the ground of crime, non-

residence, corrupt or illegal practice,

Parliament is authorised to make Provisions with respect to

all matters in relation to Elections to Parliament and State
Legislatures, the preparation of Electoral Rolls, the
delimitation of Constituencies and all other connected matters.

The Validity of any Law relating to the delimitation of

Constituencies or the allotment of Seats to such Constituencies
shall not be called in question in any Court.

Election can only be called in question by an Election

Petition presented to the concerned Authority.

On premature dissolution of the Legislative Assembly,

there is no provision expressly providing for limitation for
starting a fresh one.

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 The Election Commission is vested with the Powers of
Superintendence, Direction, Control and Conduct of the
Election.

 COURTS IN ELECTION DISPUTES –

 PRIOR TO 1966 –

In the Article 324 of the Constitution, there was provision for

appointment of Election Tribunal by the Election Commission
to resolve Doubts and Disputes regarding Elections to the
Parliament and the State Legislature.

 19th AMENDMENT ACT, 1966 –

This Amendment transferred the Jurisdiction to the High

court and Appeal to the Supreme Court of India.

 42nd AMENDMENT ACT, 1976 –

Power has been conferred on the appropriate legislature to set

up a Tribunal for trying Disputes regarding Elections of the
concerned legislature by passing a law.

Thus, if any law is passed in this regard, the High Court shall
not have Jurisdiction and the Administrative Tribunal shall
determine the Election Disputes. Appeal shall file from the
Administrative Tribunal to the Supreme Court by Special Leave
Petition.

The 19th Amendment Act also inserted an Article 329A which

provided for a Special Forum to try Election Disputes concerning
the President, Vice President, Prime Minister and Speaker of
Lok Sabha.

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  FREEDOM OF TRADE, COMMERCE AND INTERCOURSE
(ARTICLE 301 – 307) –

Introduction –

Articles 301 to 307 deal with FREEDOM OF TRADE,

COMMERCE AND INTERCOURSE.

In all Federations, attempts are always made to create an

economic unity and use of economic resources for the
advantage of the Nation. The Framers of the Constitution were
fully aware of the many linguistic problems in India. It was
considered to be a barrier for the Interstate Trade and
Commerce. The boundaries of different States would affect the
free flow of Commerce and Trade throughout India.

TRADE = The business of Selling goods with a

view to profit, that goods which the
trader has either manufactured or
himself purchased.

COMMERCE = Trade (especially between Countries);

Buying and selling of goods.

INTERCOURSE = Transportation of goods from one place

to another place, by land, air or water.

 FREEDOM OF TRADE AND COMMERCE -

Article 301 provides that Trade, Commerce and

Intercourse throughout the territory of India shall be free.
Freedom given in Article 301 is not absolute and it is Restricted
and Regulated by the Articles 302 to 307.

The protection available under Article 301 is only for 'Lawful

Trade'. Trade means buying and selling while commerce means
much more so, Article 301 guarantees Right to freedom of
Trade and Commerce.

Article 19(1)(g) also guarantees to citizens, the Right to

Practice any Profession or carry on any Trade, Business etc.
But Article 19 confers a Fundamental Right on a citizen and
Article 301 confers only a Statutory Rights.

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  RESTRICTIONS OF FREEDOM OF TRADE AND COMMERCE
–

Article 302 to 305 of the Constitution provides Restrictions

on the Freedom of Trade and Commerce. Such Restrictions
must be only by Legislation and not by Executive Orders.
Restrictions are classified into two types –

1. Regulatory and Compensatory Restrictions.

2. Direct and Immediate Restrictions.

 DOCTRINE OF COMPENSATORY TAXES –

 REGULATORY AND COMPENSATORY RESTRICTIONS –

These Restrictions are Valid because they tend to promote the

freedom of trade and commerce throughout India.

They are not Restrictive and do not affect the freedom of trade
in any way. In fact, they are beneficial and helpful for the
progress of Commerce.

 FOR EXAMPLE –

Traffic Regulations of Vehicles Licenses, Price Control,

Minimum Wages, etc., are all Regulatory Restrictions. These are
Compensatory Restrictions because taxes levied on these
restrictions are only used to promote the commerce and trade.

 STATE OF H.P. AND OTHERS Vs. YASH PAL GARGH AND

OTHERS – (2003) -

The Supreme Court upheld the H.P. Act which imposed tax
on goods carried by road as valid. It cannot operate as a
hindrance to interstate trade and commerce.

 DIRECT AND IMMEDIATE RESTRICTIONS –

All taxes are Restrictive which are not incidental or indirect.

They are considered to be immediate restrictions and hence these
are held to be violative of the Constitution.

 FOR EXAMPLE –

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 Double Taxation Boundary Entry Tax, etc., are held to be void,
since they are direct restrictions. The following leading cases will
illustrate this subject –

 ATIABARI TEA COMPANY Vs. STATE OF ASSAM – AIR

1961 SC 232 –

The Assam Taxation Act, 1954 levied tax for all goods
passing through Assam. The Tea Company was taxed by the
Assam Government. The Company challenged the Order by a
Writ in the Supreme Court.

The Court held that the Assam Taxation Act was Void as it
imposed direct and immediate restrictions on the freedom of
trade and commerce without getting the prior sanction of the
President as required in Article 304.

 SANJEEVIAH Vs. STATE OF MYSORE – AIR 1967 SC 1189

Under the Mysore Forest Act, the Government passed on

Order banning movement of Forest Woods between Sunset and
Sunrise.

The Supreme Court held that that Order was Void, as it was a
Direct Restriction on the Freedom of Trade and Commerce.

 G.K.KRISHNAN Vs. STATE OF TAMIL NADU – AIR 1975 SC

583 –

Tax for maintenance of Roads and Bridges can be imposed

and it does not restrict free trade.

 RULES REGARDING INTERSTATE TRADE AND

COMMERCE –

1. Article 301 guarantees both Interstate trade, commerce

and intercourse and intrastate trade, commerce and
intercourse.

2. The terms “Trade”, “Commerce” and “Intercourse” have

wide meaning and they include movement of goods and
persons.

3. This freedom is free from all laws including tax laws.

4. All taxes which are direct and immediate are violative of

Article 301.

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  PARLIAMENT'S POWER TO REGULATE TRADE AND
COMMERCE (ARTICLE 302) –

As per Article 302, the Parliament can impose restrictions

on the Freedom of Interstate Trade and Commerce only in the
Public Interest. However, whether such restrictions are in Public
Interest or not can be questioned in a Court of law.

In this case, Parliament has given the sole power to decide

what restrictions can be imposed in the Public Interest as
authorised by Article 302.

As per Article 303, the Parliament should not give

preference to one State over other State regarding Trade and
Commerce but when there is Scarcity of goods in any State, then
it can show preference to such State.

STATE'S POWER TO REGULATE TRADE AND COMMERCE

(ARTICLE 304) –

The State is also empowered to impose Taxes on the goods

entering into its territory. However, it should not be
discriminatory

 BHAILAL BHAI Vs. STATE OF MADRAS – AIR 1964 SC

1006 –

The Madras State levied tax on imported tobacco but not on

local tobacco.

The Supreme Court held that the tax was discriminatory and
hence, Void.

The Following Conditions must be satisfied for a State to

impose Restrictions –

a. It must be in the Public Interest.

b. Such Restrictive Law or Tax must get the prior sanction

of President of India, before introducing the Bill in the
Assemble.

c. Such Restriction must be Reasonable.

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  EMERGENCY PROVISIONS – GROUNDS, APPROVAL FOR
CONTINUATION AND EFFECTS (ARTICLE 352 TO 360) -

 INTRODUCTION-

Article 352 to 360 have been framed for the Emergency

Purpose.

One of the important Characteristics of the Indian

Constitution is that it has got special provisions to meet the
Emergency Situations.

Part XVIII of the Constitution which is headed as,

"Emergency Provisions" mentions three kinds of Emergencies.

All the three Emergencies are as follows –

1. National Emergency (Article 352) -

Emergency declared due to War, External Aggression or

Armed Rebellion.

2. State Emergency (Article 356)

Emergency due to the failure of Constitutional

Machinery in State.

3. Financial Emergency (Article 360)

Threat to Financial Stability.

1. NATIONAL EMERGENCY (ARTICLE 352)

a. Article 352 empowers the President of India to proclaim

emergency if he is satisfied that the security of India or
any part of India is threatened either by war or by external
aggression or armed rebellion.

 FOR EXAMPLE –

Emergency was declared due to Pakistan War in 1965

and 1971. In the same way, Emergency was declared due
to Internal Disturbance in 1975.

b. The Emergency Proclaimed by the President can be varied or

revoked by a subsequent proclamation.

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 c. A proclamation of Emergency can be made even before the
actual occurrence of event.

d. The President shall not declare proclamation of emergency

without the approval of the Union Cabinet in writing.

e. The proclamation of emergency shall be laid before each

House of Parliament and shall be Valid only for one month.
Before expiry of this period, it must be approved by a
Resolution by both the Houses of the Parliament, to make
it valid.

f. If the Emergency is declared after the Lok Sabha is

dissolved, but approved by the Rajya Sabha, the
Proclamation of Emergency continues to be valid till 30
days after the new Lok Sabha makes it’s first sitting.

g. But, if a proclamation of emergency once approved by

both the Houses of Parliament; then it shall remain in
force for a period of 6 months from the date of passing it.

h. For continuance of Emergency after 6 months, the

Parliament's approval is required after every 6 months.

2. STATE EMERGENCY – Failure of Constitutional

Machinery in State (Article 356) -

Article 356 of the Constitution empowers to the President

to issue a proclamation of State Emergency on receipt of a
report of a Governor of a State, if he is satisfied that
Government of that particular State cannot be carried on in
accordance with the provisions of the Constitution. By such
proclamation, any of the functions vested in the Governor of that
State, the President is empowered to declare that the Power of
the Legislative Assembly of that State shall vest in Parliament.

 EFFECT OF PRESIDENT’S RULE –

a. The President becomes the Executive Head of the

State. He exercises his powers through the Governor
or other Officers.

b. The State Government is dissolved, since the

President thinks that the State Government cannot

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 carried on in accordance with the provisions of the
Constitution.

c. The Parliament enacts laws for the State under the

President's Rule.

d. The President cannot assume the Judicial Powers of

the High Court. He cannot also Suspend the operation
of the High Court.

e. The Parliament can empower the President to delegate

such Law making powers to his subordinates.

f. The Parliament can empower the President to make

laws for the State.

The Proclamation must be laid before both the Houses of

Parliament and if such proclamation has been disapproved by
both the houses of Parliament then such proclamation shall
ceases to operate after 2 months.

But if it is approved by both the Houses of Parliament then

it shall remain in force for a period of 6 months.

3. FINANCIAL EMERGENCY (Article 360) -

Article 360 provides for Financial Emergency. Financial

Emergency may be declared if the President is satisfied that the
Financial Stability and Credit of India or Part of India is
threatened, he may by a Proclamation make a declaration of
financial emergency in whole of India or any part thereof.

Such proclamation must be laid before both the Houses of

Parliament and if such proclamation has been disapproved by
both the Houses then such proclamation shall be cease to
operate after 2 months.

But if it is approved by both the Houses of Parliament

then it shall remain in force for a period of 6 months.

 EFFECT OF FINANCIAL EMERGENCY –

i. The Union Executive gives directions to the State

Government regarding Financial Matters.

ii. The President can also give directions to the State

Government.

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 iii.The Salaries of the Government Servants including the
Judges of the Supreme Court and the High Court can be
reduced to meet the Financial Emergency.

vi.The Money Bills passed by the Legislature must be sent to

the President for his Assent.

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NOTE NO. 9 II SHRI SAI II

THE CONSTITUTION OF INDIA - II

© ALL RIGHTS RESERVED – No part of this notes may be
reproduced, stored in a retrieval system, or transmitted, in
any form or by any means, electronic, mechanical,
photocopying, recording or otherwise without the prior
permission of the author)

----------------------------------------------------------------------------------

 NATURE OF INDIAN FEDERALISM –

 INTRODUCTION –

Constitution may be either UNITARY or FEDERAL. Under the

Unitary Constitution, the Powers of the Government are
Centralised in one Government, generally the Central
Government (FOR EXAMPLE – U.K. Constitution).

In the Federal Constitution, there is a Division of Powers

between the Central and the State Government and both are
Independent in their own Spheres. (FOR EXAMPLE – U.S.A.
Constitution).

 CHARACTERISTICS OF FEDERAL CONSTITUTION –

Prof. Wheare defines “Federalism” as the Method of Dividing

Powers so that the Central and Regional are each within a
Sphere, co-ordinate and Independent. Both the Central and the
Regional Governments co-ordinate but independent in their
Spheres and not Subordinate to one another, it is otherwise called
– “Co-Federalism”.

A Federal Constitution usually has the following Essential

Characteristics –

1. SUPREMACY OF CONSTITUTION –

A Federal Government comes into existence by the

Constitution. So all the Executive, Legislature and Judicial
Powers of the Central and the State Government is subordinate
to and controlled by the Constitution. The Constitution is the
Supreme Law of the land.

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 2. WRITTEN CONSTITUTION –

A Federal Constitution must necessarily be Written

Constitution. Only with a Written Constitution, the Supremacy
of the Constitution and clarity of terms of the Constitution can be
maintained.

3. RIGID CONSTITUTION –

A Federal Constitution which is the Supreme Law of the land

must necessarily be rigid. It means that the Power and Procedure
of Amending the Constitution must not be easy. It should be
difficult. At the same time, Amendment should not be
impossible.

4. DISTRIBUTION OF POWERS –

The Distribution of Powers of the Nation to a number of co-

ordinate bodies, each originating and controlled by the
Constitution is an essential feature of Federalism. So, it is
called – “Co-Ordinate Federal Constitution”.

5. INDEPENDENT JUDICIARY –

For the existence of a Federal System, legal Supremacy is

essential. The Division of Powers between Central and State
Governments within the Framework of the Constitution can be
safeguarded only by an Independent and Impartial Judiciary.

The Judiciary has the Final Powers to interpret the provisions

of Constitution.

6. BICAMERALISM –

Two Houses should be present at the Centre. One to protect

the National Interest and the other to protect the Interest of
the State.

 NATURE OF THE INDIAN CONSTITUTION –

As regards whether the Indian Constitution is Federal or

Unitary, there are differences of Opinion. Some view that it is
Quasi-Constitutional with more Unitary Features than Federal.
The other view is that it is a Federal Constitution.

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  FEDERAL FEATURES –

The Indian Constitution possesses all the essential

Characteristics of a Federal Constitution –

1. The Indian Constitution is Supreme. The Executive,

Legislature and Judiciary derive their Powers only from the
Constitution.

2. The Indian Constitution is a Written Constitution with 443

Articles, 26 Parts and 12 Schedules.

3. The Indian Constitution is rigid. Amendment is possible but

not easy.

4. The Powers of the Nation are distributed between Central

Government and the State Government under Union List,
State List and Concurrent List.

5. The Indian Judiciary is Independent and Impartial. The

Supreme Court and High Courts interpret the provisions of
the Constitution and their Judgments have the force of
the Law.

 UNITARY FEATURES –

Jurists criticise that Indian Constitution has got the

following Unitary Features also -

1. The Parliament may form new States, increase or diminish

the area of the State, and alter the boundaries or name of
any State. Thus, the very existence of the states depend on
the Parliament.

2. The Parliament may declare 3 types of Emergencies.

3. The Constitution requires the State Legislature to get

President’s Assent for enacting laws regarding certain
matters.

4. The Governors, who are Constitutional Heads of the States

are appointed by the President and are answerable to him.

5. Under Article 249, the Parliament can enact laws in the

State List.

6. The Parliament has additional powers by 42nd Amendment

relating to establishment of Tribunals.

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 In short, the Indian Constitution is Federal with slight
changes to suit the Practical needs of out Country. It is
basically Federal with striking Unitary Features. It is Federal
with the National Interest as paramount.

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 BORROWINGS –

 BORROWING BY THE GOVERNMENT OF INDIA -

Article 292 of the Constitution of India deals with Borrowing by

the Government of India.

The Executive Power of the Union extends to borrowing upon

the Security of the Consolidated Fund of India within such
limits, if any, as may from time to time be fixed by Parliament by
law and to the giving of Guarantees within such limits, if any, as
may be so fixed.

 BORROWING POWERS BY THE STATES –

Article 293 of the Constitution of India deals with Borrowing by

the State.

1. As per the provisions of this Article, the Executive Power of

a State extends to borrowing upon the Security of the
Consolidated Fund of the State within such limits, if any,
as may from time to time be fixed by Legislature of such
State by law and to the giving Guarantees within such
limits, if any, as may be so fixed.

2. The Government of India may, subject to such conditions

as may be laid down by or under any law made by
Parliament, make loans to any State or, give guarantees in
respect of loans raised by any State, and any sums required
for the purpose of making such loans shall be charged on
the Consolidated Fund of India.

3. A State may not without the Consent of the Government

of India raise any loan if there is still outstanding any part
of a loan which has been made to the State by the
Government of India.

4. A Consent under Clause (3) may be granted subject to such

Conditions, if any, as the Government of Indian may thinks
fit to impose.
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