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Contents
Chapter 1 – Historical Background . 15 Reasons for elephantine size ............................. 30

The Company Rule (1773–1858) .............. 15 Drawn from Various Sources ..................... 30
Regulating Act of 1773 ....................................... 15 Blend of Rigidity and Flexibility ............... 31
Pitt’s India Act of 1784 ....................................... 16 Federal System with Unitary Bias ............ 31
Act of 1786 ......................................................... 16 Parliamentary Form of Government ....... 31
Charter Act of 1793 ............................................ 16 Synthesis of Parliamentary Sovereignty
Charter Act of 1813 ............................................ 16 and Judicial Supremacy ............................... 32

Charter Act of 1833 ............................................ 16 Integrated and Independent Judiciary ... 32

Charter Act of 1853 ............................................ 17 Fundamental Rights ...................................... 32
The Crown Rule (1858–1947) ................... 17 Directive Principles of State Policy .......... 33
Government of India Act, 1858 .......................... 17 Fundamental Duties ...................................... 33
Indian Councils Act, 1861 ................................... 18 A Secular State................................................. 33
Indian Councils Act, 1892 ................................... 19 Universal Adult Franchise........................... 34
Indian Councils Act, 1909 ................................... 19 Single Citizenship ........................................... 34
Government of India Act, 1919 .......................... 19 Independent Bodies ...................................... 34
Government of India Act of 1935 ...................... 21 Emergency Provisions .................................. 34
Indian Independence Act of 1947 ...................... 22 Three-tier Government ................................ 35
Chapter 2 – Making of Constitution . 24 Co-operative Societies .................................. 35
Demand for a Constituent Assembly ....... 24 Criticism of the Constitution ...................... 35
Composition of the Constituent Assembly A Borrowed Constitution ................................... 35
.............................................................................. 24 A Carbon Copy of the 1935 Act.......................... 35
Working of the Constituent Assembly .... 25 Un-Indian or Anti-Indian .................................... 35
Changes by the Independence Act ............ 26 An Un-Gandhian Constitution............................ 36
Committees of the Constituent Assembly Elephantine Size ................................................. 36
.............................................................................. 27 Paradise of the Lawyers ..................................... 36
Major Committees ............................................. 27
Chapter 4 – Preamble of Constitution
Drafting Committee ........................................... 27
..................................................................... 37
Enactment of the Constitution ................... 28
Components of the Preamble..................... 37
Enforcement of the Constitution ............... 28
Key Words in the Preamble ........................ 37
Criticism of the Constituent Assembly .... 28 Sovereign ........................................................... 37
.............................................................................. 29 Socialist .............................................................. 37
Important Facts............................................... 29 Secular ............................................................... 38
Chapter 3 – Salient Features of the Democratic......................................................... 38
Constitution ............................................. 30 Republic ............................................................. 39
Lengthiest Written Constitution ............... 30 Justice ................................................................ 39

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Liberty ................................................................ 39 Jammu & Kashmir and Ladakh........................... 58
Equality............................................................... 40 Daman & Diu and Dadra & Nagar Haveli ........... 58
Fraternity............................................................ 40 Change of Names ............................................ 58
Significance of the Preamble ...................... 40 Chapter 8 – Citizenship........................ 59
Preamble as Part of the Constitution ...... 41 Kinds of People ............................................... 59
Amendability of the Preamble ................... 42 Rights and privileges conferred on
Chapter 5 – Amendment of Citizens only ..................................................... 59
Constitution ............................................. 43 Constitutional Provisions............................ 59
Procedure for Amendment ......................... 43 Domiciled in India .............................................. 59

Types of Amendments .................................. 44 Migrated to India from Pakistan ........................ 60

By Simple Majority of Parliament ...................... 44 Migrated to Pakistan from India ........................ 60

By Special Majority of Parliament ...................... 44 Citizenship Act, 1955 .................................... 60

By Special Majority of Parliament and Consent of Acquisition of Citizenship ........................... 61
States.................................................................. 45 By Birth............................................................... 61
Criticism of the Amendment Procedure. 45 By Descent ......................................................... 61
Chapter 6 – Basic Structure of By Registration ................................................... 61
Constitution ............................................. 47 By Naturalisation ............................................... 62
Introduction ..................................................... 47 Special provisions as to citizenship of persons
covered by the Assam Accord............................ 62
Important SC cases......................................... 47
By Incorporation of Territory ............................. 63
Elements of the Basic Structure ................ 48
Loss of Citizenship ......................................... 63
Few Landmark Cases (in detail)................ 50
By Renunciation ................................................. 63
Chapter 7 – Union and its Territory 52
By Termination................................................... 63
Union of States................................................. 52
By Deprivation ................................................... 63
Parliament’s Power to Reorganise the
States .................................................................. 53 Single Citizenship ........................................... 63

Integration of Princely States ............................. 54 Overseas Citizenship of India .................... 64

Registration of Overseas Citizen of India
New States and Union Territories created
Cardholder ......................................................... 64
after 1956.......................................................... 56
Conferment of Rights on Overseas Citizen of India
Maharashtra and Gujarat................................... 56
Cardholder ......................................................... 64
Dadra and Nagar Haveli ..................................... 56
Renunciation of Overseas Citizen of India Card. 65
Goa, Daman and Diu .......................................... 56
Cancellation of Registration as Overseas Citizen
Puducherry ......................................................... 56 of India Cardholder ............................................ 65
Nagaland ............................................................ 57 Provisions made under Citizenship
Haryana, Chandigarh and Himachal Pradesh..... 57 Amendment Act, 2019 .................................. 65
Manipur, Tripura and Meghalaya ...................... 57 Chapter 9 – Fundamental Rights ...... 67
Sikkim ................................................................. 57 Features of Fundamental Rights ............... 67
Mizoram, Arunachal Pradesh and Goa .............. 57 Definition of State .......................................... 68
Chhattisgarh, Uttarakhand and Jharkhand ........ 57 Laws inconsistent with Fundamental
Telangana ........................................................... 58 Rights.................................................................. 68
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Right to Equality ............................................. 69 Martial Law and Fundamental Rights ..... 86

Rule of Law ......................................................... 69 Effecting certain Fundamental Rights .... 87
‘Equality before law’ .......................................... 69 Present position of Right to Property ..... 87
‘Equal protection of the laws’ ............................ 70 Criticism of Fundamental Rights .............. 88
Exceptions to Equality ........................................ 70 Chapter 10 – Directive Principles of
Prohibition of Discrimination on Certain Grounds State Policy .............................................. 90
............................................................................ 70
Features of the Directive Principles ........ 90
Equality of Opportunity in Public Employment . 71
Classification of the Directive Principles
Abolition of Untouchability ................................ 73
.............................................................................. 90
Abolition of Titles ............................................... 74
New Directive Principles ............................. 92
Right to Freedom ............................................ 74
Sanction behind Directive Principles ..... 92
Freedom of Speech and Expression ................... 74
Conflict between Fundamental Rights and
Freedom of Assembly ........................................ 75 Directive Principles ....................................... 92
Freedom of Association ..................................... 75 Distinction Between Fundamental Rights
Freedom of Movement ...................................... 75 and Directive Principles .............................. 94
Freedom of Residence ....................................... 76 Chapter 11 – Fundamental Duties ... 95
Freedom of Profession, etc. ............................... 76 Swaran Singh Committee
Protection in Respect of Conviction for Offences recommendations .......................................... 95
............................................................................ 76 List of Fundamental Duties......................... 95
Protection of Life and Personal Liberty.............. 77 Features of the Fundamental Duties ....... 96
Right to Education .............................................. 78
Criticism of Fundamental Duties .............. 96
Protection Against Arrest and Detention........... 78
Significance of Fundamental Duties ........ 96
Right against Exploitation ........................... 80
Verma Committee observations ............... 97
Prohibition of Traffic in Human Beings and
Forced Labour .................................................... 80 Chapter 12 – Parliamentary System 98
Prohibition of Employment of Children in Features of Parliamentary Government 98
Factories, etc. ..................................................... 80 Features of Presidential Government..... 99
Right to Freedom of Religion ..................... 81 Merits of the Parliamentary System ........ 99
Freedom of Conscience and Free Profession, Demerits of the Parliamentary System 100
Practice and Propagation of Religion ................. 81
Reasons for adopting Parliamentary
Freedom to Manage Religious Affairs ................ 81 System ............................................................. 100
Freedom from Taxation for Promotion of a Distinction between Indian and British
Religion............................................................... 81 models ............................................................. 101
Freedom from Attending Religious Instruction . 82
Chapter 13 – Federal System .......... 102
Cultural and Educational Rights ............... 82
Federal Features of the Constitution ... 103
Protection of Interests of Minorities ................. 82
Unitary Features of the Constitution.... 104
Right of Minorities to Establish and Administer
Educational Institutions ..................................... 82 Critical evaluation of the Federal System
........................................................................... 105
Right to Constitutional Remedies ............. 83
Chapter 14 – Centre-State Relations
Writs—Types and Scope .................................... 84
.................................................................. 107
Armed Forces and Fundamental Rights . 85
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Legislative Relations .................................. 107 Chapter 17 – Election and

Territorial Extent of Central and State Legislation Representation (NCERT) ................. 137
.......................................................................... 107
Elections and Democracy ......................... 137
Distribution of Legislative Subjects .................. 108
Election system in India ............................ 137
Parliamentary Legislation in the State Field .... 109
The First Past the Post (FPTP) system .............. 137
Administrative Relations ......................... 110
Proportional Representation ........................... 137
Obligation of States and the Centre................. 110
Comparison of FPTP and PR system of election
Financial Relations ..................................... 113 ......................................................................... 138
Allocation of Taxing Powers ............................. 113 Why did India adopt the FPTP system? ........... 138
Distribution of Tax Revenues ........................... 115 Reservation of constituencies ................ 138
Distribution of Non-tax Revenues .................... 117 Who decides which constituency is to be
Goods and Services Tax Council ....................... 118 reserved? ......................................................... 139

Finance Commission ........................................ 118 Free and Fair elections .............................. 139
Universal franchise and right to contest.......... 139
Chapter 15 – Inter-State Relations 121
Independent Election Commission .................. 139
Inter-State Water Disputes ...................... 121
Functions of Election Commission of India ...... 140
Inter-State Councils .................................... 123
Electoral Reforms............................................. 140
Public Acts, Records and Judicial
Proceedings ................................................... 124 Conclusion ..................................................... 141
Inter-State Trade and Commerce .......... 124 Chapter 18 – Executive (NCERT) ... 142
Zonal Councils .............................................. 125 What is an Executive? ................................ 142
North-Eastern Council ...................................... 126 Functions of the executive............................... 142

Chapter 16 – Emergency Provisions What are the different types of Executive?

.................................................................. 127 ........................................................................... 142
Presidential system .......................................... 142
National Emergency ................................... 127
Semi-presidential system ................................. 142
Grounds of Declaration .................................... 127
Parliamentary system ...................................... 142
Parliamentary Approval and Duration ............. 128
Revocation of Proclamation ............................. 128 Parliamentary Executive in India .......... 143
Power and position of President ..................... 143
Effects of National Emergency ......................... 129
The Vice President of India .............................. 144
Declarations Made So Far ................................ 131
Prime Minister and Council of Ministers ......... 144
President’s Rule ........................................... 132
Permanent Executive: Bureaucracy ................. 145
Grounds of Imposition ..................................... 132
Parliamentary Approval and Duration ............. 132 Conclusion ..................................................... 147

Consequences of President’s Rule ................... 133 Chapter 19 – President ..................... 148

Financial Emergency .................................. 135 Election of the President .......................... 148
Grounds of Declaration .................................... 135 Proportional Representation with Single
Transferable Vote ............................................ 151
Parliamentary Approval and Duration ............. 135
Criticism of System of Indirect Election of
Effects of Financial Emergency ........................ 135
President .......................................................... 151
Criticism of the Emergency Provisions 136
Qualifications, Oath and Conditions ..... 152
Oath or Affirmation by the President .. 152
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Conditions of President’s Office ............. 153 Qualifications, Oath and Conditions ..... 173
Term, Impeachment and Vacancy ......... 153 Qualifications ................................................... 173
Term of President’s Office ............................... 153 Oath or Affirmation ......................................... 174
Impeachment of President .............................. 153 Term and Vacancy ...................................... 174
Vacancy in the President’s Office..................... 154 Term of Office .................................................. 174
Powers and Functions of the President Vacancy in Office ............................................. 174
........................................................................... 155 Powers and Functions ............................... 174
Executive Powers ............................................. 155 Salary and Allowances............................... 175
Legislative Powers ............................................ 155
Indian and American Vice-Presidents
Financial Powers .............................................. 156 compared ....................................................... 175
Judicial Powers ................................................. 157 Chapter 22 – Prime Minister .......... 176
Diplomatic Powers ........................................... 157
Appointment of the Prime Minister ..... 176
Military Powers ................................................ 157
Oath, Term and Salary ............................... 177
Veto Power of the President .................... 157
Powers and Functions of the Prime
Absolute Veto................................................... 158 Minister .......................................................... 177
Suspensive Veto ............................................... 158 In Relation to Council of Ministers .................. 177
Pocket Veto ...................................................... 158 In Relation to the President ............................. 178
Presidential Veto over State Legislation .......... 159 In Relation to Parliament ................................. 178
Summary of Veto Power of President.............. 159 Other Powers & Functions ............................... 178
Ordinance-Making power of the President Chief Ministers who became Prime
........................................................................... 159 Ministers ........................................................ 178
Ordinances promulgated during different Lok Chapter 23 – Chief Minister ............ 180
Sabhas .............................................................. 161
Appointment of Chief Minister ............... 180
Pardoning Power of the President ........ 161
Oath, Term and Salary ............................... 180
Constitutional Position of the President
........................................................................... 162 Powers and Functions of Chief Minister
........................................................................... 181
Chapter 20 – Governor...................... 164
In Relation to Council of Ministers .................. 181
Appointment Of Governor ........................ 164
In Relation to the Governor ............................. 181
Conditions of Governor’s Office ............. 165 In Relation to State Legislature ........................ 181
Term of Governor’s Office ........................ 165 Other Powers and Functions ........................... 181
Powers and Functions of Governor....... 166
Chapter 24 – Central Council of
Executive Powers ............................................. 166
Ministers ............................................... 183
Legislative Powers ............................................ 167
Constitutional Provisions......................... 183
Financial Powers .............................................. 167
Council of Ministers to aid and advise President
Judicial Powers ................................................. 168 ......................................................................... 183
Comparison Of Powers Of President And Other Provisions as to Ministers ...................... 183
Governor ........................................................ 168 Conduct of Business of the Government of India
Constitutional Position of Governor ..... 171 ......................................................................... 183

Chapter 21 – Vice-President ........... 173 Duties of Prime Minister .................................. 183

Election ........................................................... 173 Rights of Ministers as Respects the Houses .... 184
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Nature of Advice by Ministers ................. 184 How does the Parliament control the
Appointment of Ministers ........................ 184 Executive? ...................................................... 196
Deliberation and discussion ............................. 196
Oath and Salary of Ministers ................... 184
Approval and ratification of laws ..................... 197
Responsibility of Ministers ...................... 185
Financial control............................................... 197
Collective Responsibility .................................. 185
No Confidence Motion..................................... 197
No Legal Responsibility .................................... 185
How does the Parliament regulate itself?
Composition of the Council of Ministers
........................................................................... 198
........................................................................... 186
Conclusion ..................................................... 198
Council of Ministers vs Cabinet .............. 186
Role of Cabinet ............................................. 187 Chapter 27 – Parliament .................. 199
Kitchen Cabinet ............................................ 187 Organisation of Parliament ..................... 199

Chapter 25 – State Council of Composition of the Two Houses ............ 199

Ministers................................................ 189 Composition of Rajya Sabha ............................ 199

Council of Ministers to aid and advise Governor Composition of Lok Sabha ............................... 200
.......................................................................... 189 System of Elections to Lok Sabha .......... 200
Other Provisions as to Ministers ...................... 189 Territorial Constituencies ................................ 200
Conduct of Business of the Government of a Readjustment after each Census ..................... 201
State ................................................................. 189
Reservation of Seats for SCs and STs ............... 201
Duties of Chief Minister ................................... 190
First-Past-The-Post System .............................. 201
Rights of Ministers as Respects the Houses ..... 190
Duration of Two Houses ........................... 202
Nature of Advice by Ministers ................. 190 Duration of Rajya Sabha .................................. 202
Appointment of Ministers ........................ 190 Duration of Lok Sabha...................................... 202
Oath and Salary of Ministers ................... 191 Membership of Parliament ...................... 202
Responsibility of Ministers ...................... 191 Qualifications ................................................... 202
Collective Responsibility .................................. 191 Disqualifications ............................................... 203
Individual Responsibility .................................. 191
Vacating Of Seats ......................................... 204
No Legal Responsibility .................................... 192 Disqualification ................................................ 204
Composition of the Council of Ministers Resignation ...................................................... 204
........................................................................... 192
Absence............................................................ 204
Cabinet ............................................................ 192
Oath or Affirmation .................................... 204
Chapter 26 – Legislature (NCERT) 193
Salaries and Allowances ........................... 205
Why do we need a Parliament? .............. 193
Presiding Officers of Parliament ........... 205
Why do we need two houses of Speaker of Lok Sabha ....................................... 206
Parliament? ................................................... 193
Deputy Speaker of Lok Sabha .......................... 207
Rajya Sabha ...................................................... 193
Panel of Chairpersons of Lok Sabha................. 208
Lok Sabha ......................................................... 194
Speaker Pro Tem .............................................. 209
What does the Parliament do? ................ 194
Chairman of Rajya Sabha ................................. 209
Powers of Rajya Sabha ..................................... 195
Deputy Chairman of Rajya Sabha .................... 209
Special Powers of Rajya Sabha ......................... 195
Panel of Vice-Chairpersons of Rajya Sabha ..... 210
How does the Parliament make laws? . 195
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Secretariat of Parliament ................................. 210 Legislative Powers and Functions .................... 231
Leaders in Parliament ............................... 210 Executive Powers and Functions ..................... 231
Leader of the House ......................................... 210 Financial Powers and Functions....................... 231
Leader of the Opposition ................................. 210 Constituent Powers and Functions .................. 232
Whip ................................................................. 211 Judicial Powers and Functions ......................... 232
Sessions of Parliament .............................. 211 Electoral Powers and Functions ....................... 233
Summoning ...................................................... 211 Other Powers and Functions ........................... 233
Adjournment .................................................... 211 Ineffectiveness of Parliamentary Control
Adjournment Sine Die ...................................... 211 ........................................................................... 233

Prorogation ...................................................... 212 Position of Rajya Sabha ............................. 233

Dissolution ....................................................... 212 Equal Status with Lok Sabha ............................ 234

Quorum ........................................................... 213 Unequal Status with Lok Sabha ....................... 234
Special Powers of Rajya Sabha......................... 234
Voting in House ............................................ 213
Language in Parliament ............................ 213 Parliamentary Privileges ......................... 235
Meaning ........................................................... 235
Rights of Ministers and Attorney General
........................................................................... 213 Classification .................................................... 235

Lame-duck Session ..................................... 214 Collective Privileges ......................................... 235

Devices of Parliamentary Proceedings 214 Individual Privileges ......................................... 236

Question Hour .................................................. 214 Breach of Privilege and Contempt of the House
......................................................................... 236
Zero Hour ......................................................... 216
Sources of Privileges ........................................ 236
Motions ............................................................ 216
Sovereignty of Parliament ....................... 237
Resolutions ....................................................... 219
Written Nature of the Constitution ................. 237
Youth Parliament ........................................ 219
Federal System of Government ....................... 237
Legislative Procedure in Parliament .... 219
System of Judicial Review ................................ 237
Ordinary Bills .................................................... 220
Fundamental Rights ......................................... 238
Money Bills ....................................................... 222
Ordinary Bill vs Money Bill ............................... 223
Chapter 28 – Parliamentary
Committees .......................................... 239
Financial Bills (I)................................................ 223
Classification................................................. 239
Financial Bills (II)............................................... 224
Standing Committees....................................... 239
Joint Sitting of two houses ........................ 224
Ad Hoc Committees ......................................... 240
Budget in Parliament ................................. 225
Public Accounts Committee ............................. 240
Constitutional Provisions ................................. 226
Estimates Committee....................................... 241
Charged Expenditure ....................................... 226
Committee on Public Undertakings ................. 241
Stages in Enactment......................................... 227
Departmental Standing Committees .... 241
Funds ............................................................... 230
Committees To Inquire ............................. 243
Consolidated Fund of India .............................. 230
Committee on Petitions ................................... 243
Public Account of India .................................... 230
Committee of Privileges ................................... 243
Contingency Fund of India ............................... 230
Ethics Committee ............................................. 243
Multifunctional Role of Parliament ...... 230
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Committees to Scrutinise and Control . 243 Sessions of State Legislature ................... 252
Committee on Government Assurances .......... 243 Summoning ...................................................... 252
Committee on Subordinate Legislation ........... 243 Adjournment .................................................... 252
Committee on Papers Laid on the Table .......... 243 Prorogation ...................................................... 252
Committee on Welfare of SCs and STs............. 243 Dissolution ....................................................... 252
Committee on Empowerment of Women ....... 243 Quorum ............................................................ 252
Joint Committee on Offices of Profit ............... 243 Voting in House ................................................ 253
Committees relating to the Day-To-Day Language in State Legislature .......................... 253
Business of the House ................................ 243 Rights of Ministers and Advocate General ...... 253
Business Advisory Committee .......................... 243 Legislative Procedure in State Legislature
Committee on Private Members’ Bills and ........................................................................... 253
Resolutions ....................................................... 244 Ordinary Bills .................................................... 253
Rules Committee .............................................. 244 Money Bills....................................................... 254
Committee on Absence of Members ............... 244
Position of Legislative Council ............... 257
House-Keeping Committees .................... 244 Equal with Assembly ........................................ 257
General Purposes Committee .......................... 244 Unequal with Assembly ................................... 257
House Committee ............................................ 244
Privileges of State Legislature ................ 258
Library Committee ........................................... 244
Collective Privileges ......................................... 258
Joint Committee on Salaries and Allowances of
Individual Privileges ......................................... 259
Members .......................................................... 244
Consultative Committees .......................... 244
Chapter 30 – Judiciary (NCERT) .... 260
Independence of Judiciary ............................... 260
Chapter 29 – State Legislature ....... 246
Appointment of Judges .................................... 260
Organisation Of State Legislature .......... 246
Removal of Judges ........................................... 261
Composition of Two Houses .................... 247
Structure of the Judiciary ......................... 261
Composition of Assembly ................................ 247
Jurisdiction of Supreme Court ......................... 261
Composition of Council .................................... 247
Judicial Activism .......................................... 262
Duration of Two Houses ........................... 248
Public Interest Litigation (PIL) .......................... 262
Duration of Assembly ....................................... 248
Judiciary and Rights ................................... 262
Duration of Council .......................................... 248
Judiciary and Parliament ......................... 263
Membership Of State Legislature .......... 248
Conclusion ..................................................... 263
Qualifications ................................................... 248
Disqualifications ............................................... 249
Chapter 31 – Supreme Court .......... 264
Disqualification on Ground of Defection ......... 249 Composition and Appointment .............. 264

Oath or Affirmation .......................................... 250 Qualifications, Oath and Salaries........... 265

Vacation of Seats.............................................. 250 Qualifications of Judges ................................... 265

Presiding Officers of State Legislature 250 Tenure and Removal .................................. 266
Speaker of Assembly ........................................ 250 Tenure of Judges .............................................. 266

Deputy Speaker of Assembly ........................... 251 Removal of Judges ........................................... 266

Chairman of Council ......................................... 251 Acting, Adhoc and Retired Judges ......... 267
Deputy Chairman of Council ............................ 251 Acting Chief Justice .......................................... 267
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Ad hoc Judge .................................................... 267 Transfer of Judges ............................................ 277
Retired Judge ................................................... 267 Acting, Additional and Retired Judges . 277
Seat and Procedure..................................... 267 Acting Chief Justice .......................................... 277
Seat of Supreme Court ..................................... 267 Additional and Acting Judges ........................... 277
Procedure of the Court .................................... 267 Retired Judges.................................................. 277
Independence of Supreme Court ........... 267 Independence of High Court.................... 278
Mode of Appointment ..................................... 268 Mode of Appointment ..................................... 278
Security of Tenure ............................................ 268 Security of Tenure............................................ 278
Fixed Service Conditions .................................. 268 Fixed Service Conditions .................................. 278
Expenses Charged on Consolidated Fund ........ 268 Expenses Charged on Consolidated Fund ........ 278
Conduct of Judges cannot be Discussed .......... 268 Conduct of Judges cannot be Discussed .......... 278
Ban on Practice after Retirement .................... 268 Ban on Practice after Retirement .................... 278
Power to Punish for its Contempt.................... 268 Power to Punish for its Contempt ................... 278
Freedom to Appoint its Staff ............................ 268 Freedom to Appoint its Staff ........................... 278
Its Jurisdiction cannot be Curtailed.................. 268 Its Jurisdiction cannot be Curtailed ................. 278
Separation from Executive ............................... 268 Separation from Executive............................... 278
Jurisdiction and Powers of Supreme Court Jurisdiction and Powers of High Court 279
........................................................................... 268 Original Jurisdiction ......................................... 279
Original Jurisdiction.......................................... 269 Writ Jurisdiction ............................................... 279
Writ Jurisdiction ............................................... 269 Appellate Jurisdiction....................................... 280
Appellate Jurisdiction ....................................... 270 Supervisory Jurisdiction ................................... 280
Advisory Jurisdiction ........................................ 271 Control over Subordinate Courts ..................... 281
A Court of Record ............................................. 272 A Court of Record............................................. 281
Power of Judicial Review.................................. 272 Power of Judicial Review ................................. 281
Constitutional Interpretation ........................... 272
Chapter 33 – Subordinate Courts .. 283
Other Powers ................................................... 272
Constitutional Provisions......................... 283
Supreme Court Advocates ........................ 273
Appointment of District Judges ....................... 283
Senior Advocates.............................................. 273
Appointment of Other Judges ......................... 283
Advocates-on-Record....................................... 273
Control over Subordinate Courts ..................... 283
Other Advocates .............................................. 273
Interpretation .................................................. 283
Chapter 32 – High Court ................... 274 Structure and Jurisdiction ....................... 283
Composition and Appointment .............. 275 National Legal Services Authority ......... 284
Appointment of Judges .................................... 275
Lok Adalats .................................................... 285
Qualifications, Oath and Salaries ........... 275 Meaning ........................................................... 285
Qualifications of Judges ................................... 275 Statutory Status ............................................... 285
Oath or Affirmation .......................................... 275 Benefits ............................................................ 286
Salaries and Allowances ................................... 276
Permanent Lok Adalats............................. 287
Tenure, Removal and Transfer .............. 276 Reasons ............................................................ 287
Removal of Judges ........................................... 276 Features ........................................................... 287
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Family Courts ................................................ 288 G.V.K. Rao Committee ..................................... 308

Reasons ............................................................ 288 L M Singhvi Committee .................................... 308
Features ........................................................... 289 Thungon Committee ........................................ 309
Gram Nyayalayas ......................................... 289 Gadgil Committee ............................................ 309
Reasons ............................................................ 289 Constitutionalisation ................................. 309
Features ........................................................... 290 Rajiv Gandhi Government................................ 309
Establishment................................................... 290 V.P. Singh Government .................................... 309

Chapter 34 – Tribunals ..................... 292 Narasimha Rao Government ........................... 310

Administrative Tribunals ......................... 292 73rd Amendment Act of 1992 .................. 310
Central Administrative Tribunal (CAT) ............. 292 Significance of the Act ..................................... 310

State Administrative Tribunals ......................... 293 Salient Features ............................................... 310

Tribunals for other matters .................... 293 Eleventh Schedule............................................ 313

Compulsory and Voluntary Provisions 314
Chapter 35 – Judicial Review .......... 294
Compulsory Provisions..................................... 314
Meaning of Judicial Review ...................... 294
Voluntary Provisions ........................................ 314
Importance of Judicial Review ................ 294
PESA Act of 1996 (Extension Act) .......... 314
Constitutional Provisions for Judicial
Review ............................................................. 295 Objectives of the Act........................................ 315

Scope of Judicial Review ........................... 296 Features of the Act .......................................... 315

Judicial Review of the Ninth Schedule . 296 Finances of Panchayati Raj ...................... 316
Reasons for Ineffective Performance ... 317
Chapter 36 – Judicial Activism ....... 298
Meaning of Judicial Activism ................... 298 Chapter 39 – Municipalities ............ 319
Judicial Review and Judicial Activism .. 298 Evolution of Urban Bodies ....................... 319
Historical Perspective ...................................... 319
Justification of Judicial Activism ............ 299
Committees and Commissions ........................ 319
Activators of Judicial Activism ................ 299
Constitutionalisation ................................. 319
Judicial Activism vs. Judicial Restraint 300
Meaning of Judicial Restraint ........................... 300 74th Amendment Act of 1992 .................. 320
Salient Features ............................................... 320
Supreme Court Observations ........................... 300
Twelfth Schedule ............................................. 324
Chapter 37 – Public Interest
Litigation (PIL) .................................... 302 Types of Urban Governments ................. 324
Municipal Corporation ..................................... 324
Meaning of PIL .............................................. 302
Municipality ..................................................... 325
Features of PIL.............................................. 302
Notified Area Committee ................................. 325
Scope of PIL ................................................... 303
Town Area Committee ..................................... 325
Principles of PIL ........................................... 303
Cantonment Board .......................................... 326
Guidelines for admitting PIL ................... 304
Township.......................................................... 326
Chapter 38 – Panchayati Raj ........... 306 Port Trust ......................................................... 326
Evolution of Panchayati Raj ..................... 306 Special Purpose Agency ................................... 327
Balwant Rai Mehta Committee ........................ 306
Municipal Personnel .................................. 327
Ashok Mehta Committee ................................. 307
Municipal Revenue ..................................... 327
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Central Council of Local Government ... 328 Goods and Services Tax Council ............. 344
Chapter 40 – Union Territories ..... 329 Establishment of the Council ........................... 344

Creation of Union Territories ................. 329 Composition of the Council ............................. 345

Administration of Union Territories .... 330 Working of the Council .................................... 345

Special Provisions for Delhi..................... 331 Functions of the Council .................................. 345
Other Functions of the Council ........................ 346
Advisory Committees of Union Territories
........................................................................... 331 National Commission for SCs .................. 346
Administrative System of Union Territories..... 332 Evolution of the Commission ........................... 346
Comparison between States and Union Functions of the Commission .......................... 346
Territories......................................................... 332 Report of the Commission ............................... 347
Chapter 41 – Scheduled and Tribal Powers of the Commission .............................. 347
Areas ....................................................... 333 National Commission for STs .................. 347
Administration of Scheduled Areas ...... 333 Separate Commission for STs .......................... 347
Administration of Tribal Areas .............. 333 Functions of the Commission .......................... 348
Chapter 42 – Constitutional Bodies Other functions of the Commission ................. 348
.................................................................. 335 Report of the Commission ............................... 348
Election Commission .................................. 335 Powers of the Commission .............................. 349
Composition ..................................................... 335 National Commission for BCs .................. 349
Independence .................................................. 335 Establishment of the Commission ................... 349
Powers And Functions...................................... 336 Functions of the Commission .......................... 349
Union Public Service Commission ......... 337 Report of the Commission ............................... 350
Composition ..................................................... 337 Powers of the Commission .............................. 350
Removal ........................................................... 337 Special Officer for Linguistic Minorities
Independence .................................................. 338 ........................................................................... 350
Functions .......................................................... 338 Constitutional Provisions ................................. 350

Limitations........................................................ 339 Commissioner for Linguistic Minorities ........... 350

Role .................................................................. 339 Role of the Commissioner................................ 351

State Public Service Commission ........... 340 Functions and Objectives ................................. 351

Composition ..................................................... 340 Comptroller and Auditor General of India

........................................................................... 351
Removal ........................................................... 340
Appointment and Term ................................... 352
Independence .................................................. 341
Independence .................................................. 352
Functions .......................................................... 341
Duties and Powers ........................................... 352
Limitations........................................................ 342
Role .................................................................. 353
Role .................................................................. 342
CAG and Corporations ..................................... 354
Joint State Public Service Commission 343
Attorney General of India ......................... 354
Finance Commission .................................. 343
Appointment and Term ................................... 354
Composition ..................................................... 343
Duties and Functions ....................................... 355
Functions .......................................................... 343
Rights and Limitations...................................... 355
Advisory Role ................................................... 344
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Solicitor General of India .......................... 355 Tenure and Service Conditions ........................ 375
Advocate General of the State ................. 356 Powers and Functions ...................................... 375
Appointment and Term.................................... 356 RTI Amendment Act, 2019 ............................... 376
Duties And Functions ....................................... 356 Central Vigilance Commission ................ 376
Chapter 43 – Non-Constitutional Establishment .................................................. 376
Bodies ..................................................... 357 Composition ..................................................... 377

NITI Aayog...................................................... 357 Organisation..................................................... 377

Establishment................................................... 357 Functions.......................................................... 378

Rationale .......................................................... 357 Jurisdiction ....................................................... 379

Composition ..................................................... 358 Working............................................................ 379

Specialised Wings ............................................. 358 Vigilance Units in the ministries ...................... 379

Objectives......................................................... 359 Whistle Blowers Protection Act (2014)............ 380

Functions .......................................................... 360 Central Bureau of Investigation ............. 380

Guiding Principles............................................. 360 Establishment of CBI ........................................ 380
Cooperative Federalism ................................... 361 Organisation of CBI .......................................... 381
Criticism ........................................................... 362 Composition of CBI .......................................... 381
Attached Offices............................................... 363 Functions of CBI ............................................... 382
Erstwhile Planning Commission ....................... 364 Provision of prior permission ........................... 382
Critical Evaluation ............................................ 365 CBI vs. State Police ........................................... 383
National Development Council ........................ 366 Lokpal and Lokayuktas ............................. 383
National Human Rights Commission .... 367 Global Scenario ................................................ 383
Establishment of the Commission ................... 367 Position in India ............................................... 385
Composition of the Commission ...................... 367 Lokpal ............................................................... 385
Functions of the Commission........................... 368 Lokpal and Lokayuktas Act (2013) ................... 386
Working of the Commission............................. 368 Lokayuktas ....................................................... 387
Role of the Commission ................................... 369 National Investigation Agency ................ 389
Performance of the Commission ..................... 369 Establishment of the NIA ................................. 389
State Human Rights Commission ........... 370 Rationale of the NIA ......................................... 389
Composition of the Commission ...................... 370 Functions of the NIA ........................................ 390
Functions of the Commission........................... 371 Jurisdiction of the NIA...................................... 390
Working of the Commission............................. 371 NIA (Amendment) Act, 2019 ............................ 390
Human Rights Courts ....................................... 372 National Disaster Management Authority
2019 Amendment Act ...................................... 372 ........................................................................... 390
Establishment of the NDMA ............................ 390
Central Information Commission .......... 373
Objectives of the NDMA .................................. 391
Composition ..................................................... 373
Functions of the NDMA ................................... 391
Tenure and Service Conditions ........................ 373
Additional Functions of the NDMA .................. 391
Powers and Functions ...................................... 373
State Disaster Management Authority 392
State Information Commission ............... 374
Composition ..................................................... 392
Composition ..................................................... 374
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Functions .......................................................... 392 Electoral System............................................... 413
District Disaster Management Authority Election Machinery .......................................... 414
........................................................................... 392 Election Process ............................................... 416
Composition ..................................................... 392 Electoral Reforms ....................................... 419
Functions .......................................................... 393 Committees related to Electoral Reforms ....... 419
Chapter 44 – Other Constitutional Electoral Reforms before 1996 ........................ 420
Dimensions ........................................... 394 Electoral Reforms of 1996 ............................... 421
Co-Operative Societies............................... 394 Electoral Reforms after 1996 ........................... 422
Constitutional Provisions ................................. 394 Electoral Reforms since 2010........................... 424
Reasons for the 97th Amendment .................... 396 Coalition Government ............................... 428
Official Language ......................................... 396 Meaning of Coalition Government .................. 428
Language of the Union ..................................... 397 Features of Coalition Government .................. 428
Regional Languages .......................................... 397 Formation of Coalition Governments .............. 428
Special Directives ............................................. 399 Merits of Coalition Government ...................... 429
Committee of Parliament on Official Language Demerits of Coalition Government.................. 430
.......................................................................... 399
Anti-Defection Law ..................................... 430
Classical Language Status ................................. 401
Provisions of the Act ........................................ 430
Public Services ............................................. 401
Evaluation of the Act........................................ 432
All-India Services .............................................. 401
Advantages ...................................................... 432
Central Services ................................................ 402
Criticism ........................................................... 432
State Services ................................................... 402
91st Amendment Act (2003) ............................. 432
Constitutional Provisions ................................. 403
Pressure Groups .......................................... 433
Rights and Liabilities of the Government
Meaning and Techniques ................................. 433
........................................................................... 405
Pressure Groups in India .................................. 434
Property of the Union and the States .............. 405
National Integration................................... 436
Suits By or Against The Government ............... 406
Meaning of National Integration ..................... 437
Suits Against Public Officials ............................ 407
Obstacles to National Integration .................... 437
Chapter 45 – Political Dynamics.... 409
National Integration Council ............................ 439
Political Parties ............................................ 409
National Foundation for Communal Harmony 441
Meaning and Types .......................................... 409
Chapter 46 - Representation of
Party System in India........................................ 409
People’s Act .......................................... 442
Recognition of National and State Parties ....... 411
Representation of People’s Act 1950 ... 442
Role of Regional Parties ............................ 411
Part I: Preliminary ............................................ 442
Features of Regional Parties ............................ 412
Part II: Allocation of Seats and Delimitation of
Classification of Regional Parties ..................... 412 Constituencies.................................................. 442
Rise of Regional Parties .................................... 412 Part IIA: Officers ............................................... 444
Role of Regional Parties ................................... 412 Part IIB: Electoral Rolls For Parliamentary
Dysfunctions of Regional Parties ..................... 413 Constituencies.................................................. 444
Elections ......................................................... 413 Part III: Electoral Rolls for Assembly
Constituencies.................................................. 445
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Part IVA: Manner of Filling Seats in the Council of Part V: General ................................................. 447
States to be filled by Representatives of Union
Territories......................................................... 447

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Chapter 1 – Historical Background

The British came to India in 1600 • It was the first step taken by the British
Government to control and regulate the
affairs of the East India Company in India
in the form of East India Company • It recognised, for the first time, the political
and administrative functions of the
Company
• It laid the foundations of central
administration in India.

In 1765, the Company obtained the ‘diwani’

Features:
Governor of Bengal → ‘Governor-General of
Bengal’

In 1858, in the wake of the ‘sepoy mutiny’

Establishment of a Supreme Court at Calcutta

British Crown assumed direct responsibility
for the governance of India.
Prohibited the servants of the Company from
engaging in any private trade or accepting
presents or bribes from the natives.
Strengthened the control of the British
Government over the Company
With Independence, came the need of a
Constitution.

To rectify the defects of the Regulating Act of

1773, the British Parliament passed the
Constituent Assembly was formed in 1946.
Amending Act of 1781, also known as the Act
of Settlement.
Circumstances that led to the passing of Act
of Settlement

• Some serious issues with the

administration of the Warren Hastings
were there.
The Company Rule (1773–1858)
Regulating Act of 1773
Significance:

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• There was a big tussle between the Charter Act of 1793

Supreme Court and Governor-General in Features:
Council which disturbed the balance of
• It extended the overriding power given to
administration to a great extent.
Lord Cornwallis over his council, to all future
• There was interference in the personal
Governor-Generals and Governors of
laws of the communities which had agitated
Presidencies.
the people.
• It gave the Governor-General more powers
and control over the governments of the
subordinate Presidencies of Bombay and
Madras.
• It extended the trade monopoly of the
Company in India for another period of
twenty years.
• It provided that the Commander-in-Chief
Pitt’s India Act of 1784 was not to be a member of the Governor-
Significance: General’s council, unless he was so
appointed.
• Company’s territories in India were for the • It laid down that the members of the Board
first time called the ‘British possessions in of Control and their staff were, henceforth,
India’ to be paid out of the Indian revenues.
• The British Government was given the
supreme control over Company’s affairs Charter Act of 1813
and its administration in India. Features:

Features: • It abolished the trade monopoly of the

company in India i.e., the Indian trade was
• Distinguished between the commercial thrown open to all British merchants.
and political functions of the Company.
• Allowed the Court of Directors to manage
the commercial affairs but created a new
body called Board of Control to manage the • It allowed the Christian missionaries to
political affairs. come to India for the purpose of
enlightening the people.
• It provided for the spread of western
education among the inhabitants of the
• Empowered the Board of Control to British territories in India.
supervise and direct all operations of the • It authorised the Local Governments in India
civil and military government or revenues to impose taxes on persons.
of the British possessions in India.
Act of 1786

Charter Act of 1833

Final step towards centralisation in British India
He placed two demands to accept that post,
• He should be given power to override the
decision of his council in special cases.
• He would also be the Commander-in-Chief. Features:
Accordingly, the Act of 1786 was enacted to • Governor-General of Bengal → Governor-
make both the provisions. General of India
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• Introduced an open competition system of

selection and recruitment of civil servants.

• Extended the Company’s rule and allowed

it to retain the possession of Indian
territories on trust for the British Crown.
• Deprived the governor of Bombay and
Madras of their legislative powers.

• Introduced, for the first time, local

representation in the Indian (Central)
Legislative Council.

• Ended the activities of the East India

Company as a commercial body
The Crown Rule (1858–1947)
Government of India Act, 1858

• Attempted to introduce a system of open

competition for selection of civil servants

Features:
Charter Act of 1853
Features: • Provided that India henceforth was to be
governed by, and in the name of, Her
• Separated, for the first time, the legislative Majesty.
and executive functions of the Governor-
General’s council.

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• Ended the system of double government.

Indian Councils Act, 1861
Features:

• Created a new office, Secretary of State for • Beginning of representative institutions

India, vested with complete authority and by associating Indians with the law-making
control over Indian administration. process.

• Established a 15-member Council of India

to assist the secretary of state for India.

• Constituted the secretary of state-in-council

as a body corporate.

• Initiated the process of decentralisation by

restoring the legislative powers to the
Bombay and Madras Presidencies.
Limitations of the Act:
• Largely confined to the improvement of the
administrative machinery.

• Did not alter in any substantial way the • Provided for the establishment of new
system of government prevailing in India. legislative councils for Bengal, North-
Western Frontier Province (NWFP) and
Punjab.

• Gave a recognition to the ‘portfolio’ system.

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• Empowered the Viceroy to issue ordinances, Features:

without the concurrence of the legislative
• Considerably increased the size of the
council.
legislative councils, both Central and
provincial.

Indian Councils Act, 1892

Features:
• Increased the number of additional (non-
official) members in the Central and
provincial legislative councils.

• Increased the functions of legislative

• Provided for the association of Indians with
councils.
the executive Councils of the Viceroy and
Governors.

• Provided for the nomination of some non-

• Introduced a system of communal
official members of the
representation for Muslims by accepting the
• Central Legislative Council concept of ‘separate electorate’.

• Provincial legislative councils

Government of India Act, 1919

Indian Councils Act, 1909

also known as Morley-Minto Reforms

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Features: • Provided for the establishment of a public

service commission.
• Relaxed the central control over the
provinces by demarcating and separating the
central and provincial subjects.

• Separated provincial budgets from the

Central budget.

Simon Commission
In November 1927, the British Government
announced the appointment a seven-member
statutory commission under the chairmanship
of Sir John Simon to report on the condition of
India under its new Constitutional reforms.
• Introduced, for the first time, bicameralism
and direct elections in the country.

The commission submitted its report in 1930

and recommended

• abolition of dyarchy
• extension of responsible government in the
provinces
• establishment of a federation of British India
and princely states
• continuation of communal electorate

• Required that the three of the six members

of the Viceroy’s executive Council were to be
Indian.
• Extended the principle of communal
representation by providing separate
electorates.

• Granted franchise to a limited number of

people.

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Communal Award • Abolished dyarchy in the provinces and

introduced ‘provincial autonomy’
In August 1932, the British Prime Minister,
announced a scheme of representation of the
minorities.
The award not only continued separate
electorates for the Muslims, Sikhs, Indian
Christians, Anglo-Indians and Europeans but • Introduced responsible governments in
also extended it to the depressed classes provinces.
(scheduled castes).

At last, there was an agreement between the

leaders of the Congress and the depressed • Provided for the adoption of dyarchy at
classes. the Centre.

Government of India Act of 1935 • Introduced bicameralism in six out of

eleven provinces.

It was a lengthy and detailed document having

321 Sections and 10 Schedules.
Features:
• Provided for the establishment of an All-
India Federation consisting of provinces
and princely states as units.

• Further extended the principle of

communal representation.

• Abolished the Council of India.

Federation never came into being as the
princely states did not join it.
• Extended franchise

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• Provided for the establishment of a Reserve • Provided for the partition of India and
Bank of India creation of two independent dominions of
India and Pakistan.

• Provided for the establishment of Public

Service Commissions
• Abolished the office of viceroy.

• Provided for the establishment of a Federal

Court

• Empowered the Constituent Assemblies of

On February 20, 1947, the British Prime the two dominions to frame and adopt any
Minister declared that the British rule in India constitution for their respective nations.
would end by June 30,1948.

• Proclaimed the lapse of British paramountcy

over the Indian princely states and granted
them freedom.

On June 3, 1947, the British Government made • Provided for the governance of each of the
it clear that any Constitution framed by the dominions and the provinces by the
Constituent Assembly of India (formed in Government of India Act of 1935, till the new
1946) cannot apply to those parts of the Constitutions were framed.
country which were unwilling to accept it.

Indian Independence Act of 1947

Features: India

• Ended the British rule in India. First Governor-General: Lord Mountbatten

First PM: Jawaharlal Nehru
Constituent Assembly formed in 1946
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Later it became Parliament First PM: Liaquat Ali Khan

Pakistan
First Governor-General: MA Jinnah
********

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Chapter 2 – Making of Constitution

Demand for a Constituent Assembly Constituent Assembly which more or less

Idea of a Constituent Assembly for India was put satisfied the Muslim League.
forward for the first time by M. N. Roy.

Composition of the Constituent

Indian National Congress (INC), for the first Assembly
time, officially demanded a Constituent Constituent Assembly was constituted in
Assembly to frame the Constitution of India. November 1946 under the scheme formulated
by the Cabinet Mission Plan.

Jawaharlal Nehru, on behalf the INC declared Features of the scheme:

that ‘the Constitution of free India must be
framed, without outside interference, by a • The total strength of the Constituent
Constituent Assembly. Assembly was to be 389.

The demand was finally accepted in principle by

the British Government.

Sir Stafford Cripps, a member of the cabinet,

came to India with a draft proposal of the British
Government on the framing of an independent
Constitution to be adopted after the World War
II.

• Each province and princely state were to be

allotted seats in proportion to their
respective population.

• Seats allocated to each British province were

to be divided among the three principal
communities.

Finally, a Cabinet Mission was sent to India.

• The representatives of each community
While it rejected the idea of two Constituent
were to be elected by members of that
Assemblies, it put forth a scheme for the
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community in the provincial legislative Later, Dr. Rajendra Prasad was elected as the
assembly. President of the Assembly.
Both H.C. Mukherjee and V.T.
Krishnamachari were elected as the Vice-
Presidents of the Assembly.
Objectives Resolution
• The representatives of princely states were Jawaharlal Nehru moved the historic ‘Objectives
to be nominated by the heads of the princely Resolution’ in the Assembly.
states.

It laid down the fundamentals and philosophy of

the constitutional structure.
• “This Constituent Assembly declares its firm
and solemn resolve to proclaim India as an
Independent Sovereign Republic and to
draw up for her future governance a
Constitution;
• Wherein the territories that now comprise
British India, the territories that now form
the Indian States, and such other parts of
India as are outside India and the States as
well as other territories as are willing to be
constituted into the independent sovereign
India, shall be a Union of them all;
• Wherein the said territories, whether with
their present boundaries or with such others
as may be determined by the Constituent
Assembly and thereafter according to the
law of the Constitution, shall possess and
retain the status of autonomous units
together with residuary powers and
exercise all powers and functions of
Government and administration save and
except such powers and functions as are
vested in or assigned to the Union or as are
inherent or implied in the Union or resulting
therefrom;
Working of the Constituent Assembly • Wherein all power and authority of the
First meeting: Sovereign Independent India, its constituent
parts and organs of Government are
Muslim League boycotted the meeting and
derived from the people;
insisted on a separate state of Pakistan.
• Wherein shall be guaranteed and secured to
The meeting was thus attended by only 211 all the people of India justice, social,
members. economic and political; equality of status
of opportunity, and before the law;
Dr Sachchidanand Sinha, the oldest member,
freedom of thought, expression, belief,
was elected as the temporary resident of the
faith, worship, vocation, association and
Assembly.
action, subject to law and public morality;
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• Wherein adequate safeguards shall be

provided for minorities, backward and
tribal areas, and depressed and other
backward classes
• Whereby shall be maintained the integrity • The Assembly also became a legislative
of the territory of the Republic and its body.
sovereign rights on land, sea and air
according to justice and the law of civilized
nations;
• This ancient land attains its rightful and
honoured place in the world and makes its
full and willing contribution to the
promotion of world peace and the welfare of
mankind.”
This Resolution was unanimously adopted by
the Assembly on January 22, 1947. It
influenced the eventual shaping of the
constitution through all its subsequent stages.

• The Muslim League members (hailing from

the areas included in the Pakistan) withdrew
from the Constituent Assembly for India.
Changes by the Independence Act
• The representatives of the princely states,
who had stayed away from the Constituent
Assembly, gradually joined it.

The state-wise membership of the Assembly

as on December 31, 1947
• After the acceptance of the Mountbatten
Plan of June 3, 1947 for a partition of the
country, the representatives of most of the
other princely states took their seats in the
Assembly.
• The members of the Muslim League from
the Indian Dominion also entered the
Assembly.

Changes made in the position of the

Assembly by the Indian Independence Act of
1947.

• The Assembly was made a fully sovereign

body, which could frame any Constitution it
pleased.

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Other Functions Performed The Assembly met once again on 24 January,

1950, when the members appended their
• It ratified the India’s membership of the signatures to the Constitution of India.
Commonwealth in May 1949.
It continued as the provisional parliament of
India from January 26, 1950 till the formation
of new Parliament after the first general
elections in 1951–52.

• It adopted the national flag on July 22,

1947.
Committees of the Constituent
Assembly

• It adopted the national anthem on January

24, 1950.
Major Committees
1. Union Powers Committee – Jawaharlal
Nehru
• It adopted the national song on January 24, 2. Union Constitution Committee – Jawaharlal
1950. Nehru
3. Provincial Constitution Committee – Sardar
Patel
4. Drafting Committee – Dr. B.R. Ambedkar
• It elected Dr Rajendra Prasad as the first 5. Advisory Committee on Fundamental
President of India on January 24, 1950. Rights, Minorities and Tribal and Excluded
Areas – Sardar Patel
Constituent Assembly had 11 sessions over two 6. Rules of Procedure Committee – Dr.
years, 11 months and 18 days. Rajendra Prasad
7. States Committee (Committee for
The Constitution-makers had gone through the Negotiating with States) – Jawaharlal
constitutions of about 60 countries, and the
Nehru
Draft Constitution was considered for 114
8. Steering Committee – Dr. Rajendra Prasad
days.
Drafting Committee
• Drafting Committee was set up on August
29, 1947.
• It was entrusted with the task of preparing a
draft of the new Constitution.
• It consisted of seven members.
1. Dr B R Ambedkar (Chairman)
2. N Gopalaswamy Ayyangar
3. Alladi Krishnaswamy Ayyar
4. Dr K M Munshi
5. Syed Mohammad Saadullah
6. N Madhava Rau (He replaced B L Mitter who
resigned due to ill-health)
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7. T T Krishnamachari (He replaced D P Khaitan The Constitution as adopted on November 26,

who died in 1948) 1949, contained a Preamble, 395 Articles and 8
Schedules.
The Drafting Committee, after taking into
consideration the proposals of the various
committees, prepared the first draft of the
Constitution of India, which was published in
February 1948. Dr B R Ambedkar is recognised as the ‘Father of
the Constitution of India’.
The people of India were given eight months to
discuss the draft and propose amendments. This brilliant writer, constitutional expert,
undisputed leader of the scheduled castes and
In the light of the public comments, criticisms
the ‘chief architect of the Constitution of India’
and suggestions, the Drafting Committee
is also known as a ‘Modern Manu’.
prepared a second draft, which was published
in October 1948.
Enforcement of the Constitution
Enactment of the Constitution Some provisions of the Constitution pertaining
Dr B R Ambedkar introduced the final draft of to citizenship, elections, provisional
the Constitution in the Assembly on November parliament, temporary and transitional
4, 1948 (first reading). provisions, and short title contained in Articles
5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388,
391, 392 and 393 came into force on November
26, 1949 itself.

The second reading (clause by clause The remaining provisions (the major part) of
consideration) started on November 15, 1948. the Constitution came into force on January
26, 1950.

January 26 was specifically chosen as the ‘date

of commencement’ of the Constitution because
of its historical importance.

The third reading of the draft started on

November 14, 1949. Dr B R Ambedkar moved
a motion — ‘the Constitution as settled by the
Assembly be passed’. With the commencement of the Constitution,
the Indian Independence Act of 1947 and the
The motion on Draft Constitution was declared Government of India Act of 1935, with all
as passed on November 26, 1949, and received enactments amending or supplementing the
the signatures of the members and the latter Act, were repealed.
president. The Abolition of Privy Council Jurisdiction
Act (1949) was however continued.

Criticism of the Constituent Assembly

• Not a Representative Body: The critics
have argued that the Constituent Assembly
was not a representative body.
This is the date mentioned in the Preamble as
the date on which the people of India in the
Constituent Assembly adopted, enacted and
gave to themselves this Constitution.

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• Not a Sovereign Body: The critics

maintained that the Constituent Assembly
was not a sovereign body.

• Time Consuming: According to the critics,

the Constituent Assembly took unduly long
Important Facts
time to make the Constitution.
1. Elephant was adopted as the symbol (seal)
of the Constituent Assembly.
2. Sir B.N. Rau was appointed as the
constitutional advisor (Legal advisor) to
the Constituent Assembly.
3. H.V.R. Iyengar was the Secretary to the
• Dominated by Congress: The critics Constituent Assembly.
charged that the Constituent Assembly was
dominated by the Congress party.
4. S.N. Mukerjee was the chief draftsman of
• Lawyer–Politician Domination: It is also the constitution in the Constituent
maintained by the critics that the Assembly.
Constituent Assembly was dominated by 5. Prem Behari Narain Raizada was the
lawyers and politicians. calligrapher of the Indian Constitution.
The original constitution was handwritten
by him in a flowing italic style.
6. The original version was beautified and
decorated by artists from Shantiniketan
• Dominated by Hindus: According to some including Nand Lal Bose and Beohar
critics, the Constituent Assembly was a Rammanohar Sinha.
Hindu dominated body. 7. The calligraphy of the Hindi version of the
original constitution was done by Vasant
Krishan Vaidya and elegantly decorated
and illuminated by Nand Lal Bose.

********

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Chapter 3 – Salient Features of the Constitution

Lengthiest Written Constitution Sources Features Borrowed

Federal Scheme, Office of
Government of governor, Judiciary, Public
India Act of Service Commissions,
1935 Emergency provisions and
administrative details.
Fundamental rights,
independence of judiciary,
judicial review,
US impeachment of the
Constitution president, removal of
Supreme Court and high
court judges and post of
vice-president.
Parliamentary
government, Rule of Law,
Original legislative procedure,
British
single citizenship, cabinet
Constitution
system, prerogative writs,
parliamentary privileges
and bicameralism.
Directive Principles of
State Policy, nomination of
Present Irish
members to Rajya Sabha
Constitution
and method of election of
president.
Concurrent List, and joint
Australian
sitting of the two Houses of
Constitution
Parliament.
Reasons for elephantine size Federation with a strong
Centre, vesting of residuary
• Geographical factors: powers in the Centre,
Canadian
appointment of state
Constitution
governors by the Centre,
and advisory jurisdiction of
• Historical factors: the Supreme Court.
Suspension of
Weimar
Fundamental Rights during
• Single Constitution: Constitution
Emergency.
Fundamental duties and
Soviet the ideal of justice (social,
• Dominance of legal luminaries: Constitution economic and political) in
the Preamble.
Procedure for amendment
South
Drawn from Various Sources of the Constitution and
African
Constitution of India has borrowed most of its election of members of
Constitution
provisions from the constitutions of various Rajya Sabha.
other countries as well as from the Republic and the ideals of
French
Government of India Act of 1935. liberty, equality and
Constitution
fraternity in the Preamble.
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Japanese Procedure established by A Strong Centre,

Constitution Law. Two government, Single Constitution,
division of powers, Single Citizenship,
Blend of Rigidity and Flexibility Written Constitution, Flexibility of
Supremacy of Constitution,
Constitution, Rigidity Integrated Judiciary,
of Constitution, Appointment of state
Independent governor by the
Judiciary and Centre, All-India
Bicameralism. Services, Emergency
provisions

‘Federation’ has nowhere been used in the

Constitution.

The Constitution of India is neither rigid nor

flexible but a synthesis of both.

Article 368 provides for two types of

amendments.

• Some provisions can be amended by a

special majority of the Parliament.

Indian Constitution has been described as:

• ‘quasi-federal’ by K C Wheare
• ‘bargaining federalism’ by Morris Jones
• ‘co-operative federalism’ by Granville
Austin
• ‘federation with a centralising tendency’
• Other provisions can be amended by a by Ivor Jennings
special majority of the Parliament and with
the ratification by half of the total states. Parliamentary Form of Government

• Some provisions of the Constitution can be

amended by a simple majority of the
Parliament.

Federal System with Unitary Bias

Federal Features Non-Federal

Features

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Features of parliamentary government in

India are: Integrated and Independent Judiciary
• Presence of nominal and real executives
• Majority party rule
• Collective responsibility of the executive to
the legislature
• Membership of the ministers in the
legislature
• Leadership of the prime minister or the chief
minister
• Dissolution of the lower House (Lok Sabha
or Assembly)

Provisions made to ensure independence of

Judiciary

• Security of tenure of the judges

• Fixed service conditions for the judges
• All the expenses of the Supreme Court
charged on the Consolidated Fund of
India
• Prohibition on discussion on the conduct
of judges in the legislatures
• Ban on practice after retirement
Synthesis of Parliamentary • Power to punish for its contempt vested in
Sovereignty and Judicial Supremacy the Supreme Court Separation of the
judiciary from the executive

Fundamental Rights
Part III of the Indian Constitution guarantees
six fundamental rights to all the citizens:

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1. Right to Equality (Articles 14–18) • to protect the sovereignty, unity and

2. Right to Freedom (Articles 19–22) integrity of the country;
3. Right against Exploitation (Articles 23–24) • to promote the spirit of common
4. Right to Freedom of Religion (Articles 25– brotherhood amongst all the people;
28) • to preserve the rich heritage of our
5. Cultural and Educational Rights (Articles composite culture and so on.
29–30)
A Secular State
6. Right to Constitutional Remedies (Article
The Constitution of India does not uphold any
32)
particular religion as the official religion of the
Indian State.

Provisions of the Constitution that reveal the

secular character of the Indian State:

• The term ‘secular’ was added to the

Preamble of the Indian Constitution by the
42nd Constitutional Amendment Act of
1976.
• The Preamble secures to all citizens of India
liberty of belief, faith and worship.
• The State shall not deny to any person
equality before the law or equal protection
Directive Principles of State Policy of the laws (Article 14).
• The State shall not discriminate against any
They are enumerated in Part IV of the citizen on the ground of religion (Article 15).
Constitution. They can be classified into three • Equality of opportunity for all citizens in
broad categories — socialistic, Gandhian and matters of public employment (Article 16).
liberal–intellectual. • All persons are equally entitled to freedom
of conscience and the right to freely profess,
practice and propagate any religion (Article
25).
They seek to establish a ‘welfare state’ in India. • Every religious denomination or any of its
section shall have the right to manage its
religious affairs (Article 26).
• No person shall be compelled to pay any
taxes for the promotion of a particular
religion (Article 27).
Fundamental Duties • No religious instruction shall be provided in
any educational institution maintained by
The original constitution did not provide for the
the State (Article 28).
fundamental duties of the citizens.
• Any section of the citizens shall have the
right to conserve its distinct language, script
or culture (Article 29).
• All minorities shall have the right to
establish and administer educational
institutions of their choice (Article 30).
• The State shall endeavour to secure for all
The Part IV-A of the Constitution specifies the the citizens a Uniform Civil Code (Article
eleven Fundamental Duties viz., 44).
• to respect the Constitution, national flag and
national anthem;

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• Comptroller and Auditor-General

• Union Public Service Commission

• State Public Service Commission

Universal Adult Franchise

• The Indian Constitution adopts universal

adult franchise as a basis of elections to the
Lok Sabha and the state legislative
assemblies.
• Every citizen who is not less than 18 years
of age has a right to vote without any The Constitution ensures the independence of
discrimination of caste, race, religion, sex, these bodies through various provisions like
literacy, wealth, and so on. security of tenure, fixed service conditions,
expenses being charged on the Consolidated
Fund of India, and so on.

Emergency Provisions

Single Citizenship

Though the Indian Constitution is federal and

envisages a dual polity (Centre and states), it
provides for only a single citizenship, that is,
the Indian citizenship.

Independent Bodies
The Indian Constitution not only provides for The Constitution envisages three types of
the legislative, executive and judicial organs of emergencies:
the government (Central and state) but also • National emergency on the ground of war or
establishes certain independent bodies. external aggression or armed rebellion
(Article 352)
• Election Commission

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• State emergency (President’s Rule) on the • It made the right to form co-operative
ground of failure of Constitutional societies a fundamental right (Article 19).
machinery in the states (Article 356) or • It included a new Directive Principle of State
failure to comply with the directions of the Policy on promotion of cooperative societies
Centre (Article 365) (Article 43-B).
• It added a new Part IX-B in the Constitution
• Financial emergency on the ground of threat which is entitled as “The Cooperative
to the financial stability or credit of India Societies” (Articles 243-ZH to 243-ZT).
(Article 360) Criticism of the Constitution
A Borrowed Constitution
The critics opined that the Indian Constitution
contains nothing new and original.

This criticism is unfair and illogical.

Three-tier Government This is because, the framers of the constitution

made necessary modifications in the features
borrowed from other constitutions for their
suitability to the Indian conditions, at the same
time avoiding their faults.

73rd and 74th Constitutional Amendment Acts A Carbon Copy of the 1935 Act
(1992) have added a third-tier of government The critics said that the framers of the
(i.e., local) constitution have included a large number of the
provisions of the Government of India Act of
1935 into the Constitution of India.

Hence, they called the constitution as a “Carbon

Copy of the 1935 Act” or an “amended version of
the 1935 Act”.

Un-Indian or Anti-Indian
Indian Constitution is ‘un-Indian’ or ‘anti-
Indian’ because it does not reflect the political
Co-operative Societies traditions and the spirit of India.

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They said that the foreign nature of the

Constitution makes it unsuitable to the Indian
situation or unworkable in India.

Elephantine Size
The critics stated that the Indian Constitution is
too bulky and too detailed and contains some
unnecessary elements.

An Un-Gandhian Constitution

According to the critics, the Indian Constitution

is Un-Gandhian because it does not contain the Paradise of the Lawyers
philosophy and ideals of Mahatma Gandhi, the
father of the Indian Nation. According to the critics, the Indian Constitution
is too legalistic and very complicated.
They opined that the Constitution should have
been raised and built upon village panchayats They opined that the legal language and
and district panchayats. phraseology adopted in the constitution makes
it a complex document.

********

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Chapter 4 – Preamble of Constitution

• The term ‘preamble’ refers to the Components of the Preamble

Introduction or Preface to the
Constitution.
• Source of authority of the Constitution
• It contains the summary or essence of the
Constitution.

• Nature of Indian State

➢ The Preamble to the Indian Constitution is

based on the ‘Objectives Resolution’,
drafted and moved by Jawaharlal Nehru and
adopted by the Constituent Assembly.
• Objectives of the Constitution

It has been amended by the 42nd Constitutional

Amendment Act (1976), which added three new
words. • Date of adoption of the Constitution

Key Words in the Preamble

Sovereign
The word ‘sovereign’ implies that India is
N A Palkhivala, an eminent jurist and neither a dependency nor a dominion of any
constitutional expert, called the Preamble as the other nation, but an independent state.
‘identity card of the Constitution’
There is no authority above it, and it is free to
The Preamble in its present form reads: conduct its own affairs.

Being a sovereign state, India can either acquire

a foreign territory or cede a part of its territory
in favour of a foreign state.
Socialist
The term was added by the 42nd Amendment in
1976.

What was hitherto implicit in the Constitution

has now been made explicit.

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Socialism

Secular
The term ‘secular’ too was added by the 42nd
Constitutional Amendment Act of 1976.

P B Gajendragadkar, a former Chief Justice of

India, defined secularism as in the Indian
Constitution as ‘The State does not owe loyalty to
any particular religion as such: it is not irreligious
or anti-religious; it gives equal freedom to all
religions’.
• The Indian Constitution provides for
Democratic representative parliamentary
democracy
• Universal adult franchise, periodic elections,
rule of law, independence of judiciary, and
absence of discrimination on certain
grounds are the manifestations of the
democratic character of the Indian polity.

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The term ‘democratic’ is used in the Preamble in A republic also means two more things:
the broader sense embracing not only political
• Vesting of political sovereignty in the
democracy but also social and economic
people and not in a single individual like a
democracy.
king.
• Political democracy cannot last unless there • The absence of any privileged class and
lies at the base of it social democracy. hence all public offices being opened to
• Social Democracy means a way of life which every citizen without any discrimination.
recognises liberty, equality and fraternity.
Justice
• The principles of liberty, equality and
Justice
fraternity are not to be treated as separate
items in a trinity.
• They form a union of trinity in the sense that
to divorce one from the other is to defeat the
very purpose of democracy. Social Justice
• Liberty cannot be divorced from equality;
Equal treatment of all citizens without any
equality cannot be divorced from liberty.
social distinction based on caste, colour, race,
• Nor can liberty and equality be divorced
religion, sex and so on.
from fraternity.
• Without equality, liberty would produce the Economic Justice
supremacy of the few over the many.
Non-discrimination between people on the
• Equality without liberty, would kill
basis of economic factors. It involves the
individual initiative.
elimination of glaring inequalities in wealth,
Supreme Court observed in 1997 that: “The income and property.
Constitution envisions to establish an
Political Justice
egalitarian social order rendering to every
citizen social, economic and political justice in a All citizens should have equal political rights,
social and economic democracy of the Bharat equal access to all political offices and equal
Republic”. voice in the government.

Republic

Liberty
• Absence of restraints on the activities of
individuals, and at the same time, providing
opportunities for the development of
individual personalities.
• The Preamble secures to all citizens of India
liberty of thought, expression, belief, faith
and worship, through their Fundamental
Rights
• The term ‘republic’ in our Preamble
• Liberty does not mean ‘license’ to do what
indicates that India has an elected head
one likes, and has to be enjoyed within the
called the President.
limitations mentioned in the Constitution
itself.
• The liberty conceived by the Preamble or
fundamental rights is not absolute but
qualified.
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• It shall be the duty of every citizen of

India to promote harmony and the spirit
of common brotherhood amongst all the
people of India transcending religious,
linguistic, regional or sectional
Equality
diversities
• Absence of special privileges to any section
of the society, and the provision of adequate
opportunities for all individuals without any
discrimination.
• The Preamble secures to all citizens of India
equality of status and opportunity.
• This provision embraces three dimensions
of equality

Dignity of the individual

Civic Equality
• Not only ensuring material betterment and
maintaining a democratic set-up, but also
recognizing that the personality of every
individual is sacred.
• Equality before the law (Article 14).
• Some of the provisions of the Fundamental
• Prohibition of discrimination on grounds of Rights and Directive Principles of State
religion, race, caste, sex or place of birth Policy highlights this.
(Article 15).
• To renounce practices derogatory to the
• Equality of opportunity in matters of public dignity of women [Fundamental Duties
employment (Article 16). (Article 51-A)].
• Abolition of untouchability (Article 17).
• Abolition of titles (Article 18). Unity and Integrity of the nation

Political Equality • Embraces both the psychological and

territorial dimensions of national
• No person is to be declared ineligible for integration.
inclusion in electoral rolls on grounds of • Article 1 of the Constitution describes India
religion, race, caste or sex (Article 325). as a ‘Union of States’ to make it clear that
• Elections to the Lok Sabha and the state the states have no right to secede from the
assemblies to be on the basis of adult Union.
suffrage (Article 326). • It aims at overcoming hindrances to national
Economic Equality integration like communalism, regionalism,
casteism, linguism, secessionism and so on.
The Directive Principles of State Policy (Article
39) secures to men and women equal right to an Significance of the Preamble
adequate means of livelihood and equal pay for • The Preamble embodies the basic
equal work. philosophy and fundamental values—
political, moral and religious—on which the
Fraternity
Constitution is based.
• It contains the grand and noble vision of the
Constitution promotes this feeling of fraternity Constituent Assembly, and reflects the
by dreams and aspirations of the founding
fathers of the Constitution.
• System of single citizenship
• Fundamental Duties (Article 51-A)
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‘The Preamble to our Constitution expresses what • In the Berubari Union case (1960), the
we had thought or dreamt so long’ Supreme Court said that the Preamble
shows the general purposes behind the
-Sir Alladi Krishnaswami Iyer
several provisions in the Constitution, and is
Preamble is the ‘horoscope of our sovereign thus a key to the minds of the Constitution
democratic republic’ makers.
• Where the terms used in any article are
-K M Munshi
ambiguous or capable of more than one
‘The Preamble is the most precious part of the meaning, some assistance at interpretation
Constitution. It is the soul of the Constitution. It is may be taken from the objectives enshrined
a key to the Constitution. It is a jewel set in the in the Preamble.
Constitution. It is a proper yardstick with which • Despite this recognition of the significance of
one can measure the worth of the Constitution’ the Preamble, the Supreme Court
specifically opined that Preamble is not a
-Pandit Thakur Das Bhargava
part of the Constitution.
• Sir Ernest Barker, a distinguished English
political scientist, described the Preamble as
the ‘key-note’ to the Constitution.
He said that the Preamble of the Indian
Constitution states ‘in a brief and pithy form
the argument of much of the book; and it may
accordingly serve as a key-note’.

• M Hidayatullah, a former CJI, observed,

‘Preamble resembles the Declaration of
Independence of the United States of America,
but is more than a declaration.
It is the soul of our Constitution, which lays
down the pattern of our political society. It
contains a solemn resolve, which nothing but
a revolution can alter’.

Preamble as Part of the Constitution

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Points to be noted:
1. The Preamble is neither a source of power to
legislature nor a prohibition upon the powers
of legislature.
2. It is non-justiciable, that is, its provisions are
not enforceable in courts of law.

Amendability of the Preamble

• The question as to whether the Preamble
• In the Kesavananda Bharati case (1973),
can be amended under Article 368 of the
the Supreme Court rejected the earlier
Constitution arose for the first time in the
opinion and held that Preamble is a part of
historic case of Kesavananda Bharati
the Constitution.
(1973).
• It was urged that the Preamble cannot be
amended as it is not a part of the
• It observed that the Preamble is of extreme
Constitution.
importance and the Constitution should be
• The petitioner contended that the amending
read and interpreted in the light of the grand
power in Article 368 cannot be used to
and noble vision expressed in the Preamble.
destroy or damage the basic elements or the
fundamental features of the Constitution,
• In the LIC of India case (1995) also, the
which are enshrined in the Preamble.
Supreme Court again held that the Preamble
• Supreme Court, however, held that the
is an integral part of the Constitution.
Preamble is a part of the Constitution.
Like any other part of the Constitution, the • The Court stated that the opinion tendered
Preamble was also enacted by the Constituent by it in the Berubari Union (1960) in this
Assembly, but after the rest of the Constitution regard was wrong, and held that the
was already enacted. Preamble can be amended, subject to the
condition that no amendment is done to the
The reason for inserting the Preamble at the end
‘basic features’.
was to ensure that it was in conformity with the
Constitution as adopted by the Constituent Court held that the basic elements or the
Assembly. fundamental features of the Constitution as
contained in the Preamble cannot be altered by
While forwarding the Preamble for votes, the
an amendment under Article 368.
president of the Constituent Assembly said, ‘The
question is that Preamble stands part of the The Preamble has been amended only once so
Constitution’. The motion was then adopted. far, in 1976, by the 42nd Constitutional
Amendment Act, which has added three new
Hence, the current opinion held by the Supreme
words— Socialist, Secular and Integrity—to
Court that the Preamble is a part of the
the Preamble.
Constitution, is in consonance with the opinion
of the founding fathers of the Constitution. This amendment was held to be valid.
********

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Chapter 5 – Amendment of Constitution

Like any other written Constitution, the

Constitution of India also provides for its
amendment in order to adjust itself to the
changing conditions and needs.

Article 368 in Part XX of the Constitution deals

with the powers of Parliament to amend the
Constitution and its procedure.
Parliament may, in exercise of its constituent
power, amend by way of addition, variation or
repeal any provision of the Constitution in
accordance with the procedure laid down for
the purpose.

However, the Parliament cannot amend those

provisions which form the ‘basic structure’ of
the Constitution.

Procedure for Amendment

An amendment of the Constitution can be
initiated only by the introduction of a bill for the
purpose in either House of Parliament and not
in the state legislatures.

The bill can be introduced either by a minister

or by a private member and does not require
prior permission of the president.
Each House must pass the bill separately. In case
of a disagreement between the two Houses,
The bill must be passed in each House by a there is no provision for holding a joint sitting of
special majority. the two Houses for the purpose of deliberation
and passage of the bill.

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If the bill seeks to amend the federal provisions

of the Constitution, it must also be ratified by the
legislatures of half of the states by a simple
majority, that is, a majority of the members of
the House present and voting.

After duly passed by both the Houses of

Parliament and ratified by the state legislatures,
where necessary, the bill is presented to the
president for assent.
By Simple Majority of Parliament
The president must give his assent to the bill. He
can neither withhold his assent to the bill nor
return the bill for reconsideration of the • Admission or establishment of new states.
Parliament. • Formation of new states and alteration of
areas, boundaries or names of existing
states.
• Abolition or creation of legislative councils
in states.
After the president’s assent, the bill becomes an • Second Schedule—emoluments, allowances,
Act (i.e., a constitutional amendment act) and privileges and so on of the president, the
the Constitution stands amended in accordance governors, the Speakers, judges, etc.
with the terms of the Act. • Quorum in Parliament.
Types of Amendments • Salaries and allowances of the members of
Parliament.
• Rules of procedure in Parliament.
• Privileges of the Parliament, its members
and its committees.
• Use of English language in Parliament.
• Citizenship—acquisition and termination.
• Elections to Parliament and state
legislatures.
• Delimitation of constituencies.
• Fifth Schedule—administration of
scheduled areas and scheduled tribes.
• Sixth Schedule—administration of tribal
areas.
By Special Majority of Parliament

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• Power of Parliament to amend the

Constitution and its procedure (Article 368
itself)

Criticism of the Amendment

Procedure
There is no provision for a special body like
Constitutional Convention (as in USA) or
Constitutional Assembly for amending the
Constitution.

The power to initiate an amendment to the

By Special Majority of Parliament and
Constitution lies with the Parliament.
Consent of States

If one or some or all the remaining states take

no action on the bill, it does not matter; the
moment half of the states give their consent, the
formality is completed.

There is no time limit within which the states

should give their consent to the bill. Major part of the Constitution can be amended
by the Parliament alone.

• Election of the President and its manner

• Extent of the executive power of the Union
and the states
• Supreme Court and high courts in the states

There is no provision for holding a joint sitting

• High Courts for Union territories of both the Houses of Parliament if there is a
deadlock over the passage of a constitutional
• Distribution of legislative powers between
amendment bill.
the Union and the states

• Any of the lists in the Seventh Schedule

• Representation of states in Parliament

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The process of amendment is similar to that of a

legislative process.

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Chapter 6 – Basic Structure of Constitution

Introduction articles were inserted in the constitution, viz.

When our constitution came into force on 26th Article 31A and 31B and Schedule IX was also
Jan 1950, we observe there are two articles in inserted.
the constitution that are contradicting each Articles 31A and 31B dealt with land reforms.
other. These are Article 368, which deals with
the amendment of the constitution and Article Also, provision was made that all laws under
13 which is dealt in Part III (Fundamental Schedule IX will be exempted from Judicial
Rights) of the Constitution. review.

Article 13 acts as a protector of the Fundamental So, in this way Land reforms acts were
Rights. introduced.

As per this article, any law formed must be in Soon after this, few very important judicial cases
consonance with the Fundamental Rights. In come into picture.
other words, any law framed which violates the
Important SC cases
Fundamental Rights will be declared null and
Shankari Prasad v. Union of India (1951)
void by the Supreme Court as it is the guarantor
of the Fundamental Rights. This act challenged the 1st Constitutional
Amendment Act (1951) on the ground that it
The power of Judicial Review of the courts is
curtails the Fundamental rights.
implicit in Article 13.
Supreme Court in its judgement, said the
So, on comparing Article 368 and Article 13, we
amendment was as per law and gave supreme
can sum up that Article 13 confers
powers under Article 368. It also mentioned
extraordinary powers on Judiciary whereas
that Fundamental rights can be curtailed.
Article 368 confers more powers on Parliament.
Also, in relation to Article 13, SC said that “Law”
During the discussion of features of Indian
written in Article 13 refers only to ordinary laws
constitution, we discussed about Parliamentary
and not to constitutional amendment laws.
sovereignty vs Judicial Supremacy. This has
always been a contentious issue which still Next case,
prevails.
Sajjan Singh v. State of Rajasthan (1965)
In 1950, when India got independence recently,
majority of the landholdings were with the Sajjan Singh was appointed a Sub-Inspector of
zamindars or landlords. But, for the Police by the Inspector General of Jaipur Police.
development of the country, these landholdings After integration he was confirmed by the
had to be distributed among the public. Keeping Inspector General of Police of Rajasthan.
this in view, the then Nehru government Certain complaints reached the higher
planned to introduce some land reforms acts. authorities whereupon the Deputy
But, at that time, Right to property (Article 31) Superintendent of Raigarh conducted a
was one of the Fundamental Rights. So, even if preliminary enquiry, followed by further
government introduced any such land reforms enquiry by Superintendent of Police of Alwar
act to take away landholdings from the and when the report was sent to the Deputy
zamindars, that would have been declared null Inspector General Police, Jaipur Range, the
and void as per provisions of Article 13 as it latter passed an order of the dismissal of Sajjan
would abridge the Fundamental rights. Singh.

Then 1st Constitutional Amendment Act was Sajjan Singh filed a petition for setting aside the
introduced in 1951. Through this, two new order of the dismissal on the ground that he was
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not given sufficient opportunity to explain his Kesavananda Bharti v. State of Kerala (1973)
conduct and in any case he had been appointed
Kesavananda Bharti was swami of Edneer
by the Inspector General of Police of Rajasthan
Matha of Kerala. The State of Kerala wanted to
and the Deputy Inspector General, Jaipur Range
acquire the land of the Matha under land
had no authority to pass an order of his
reforms provisions.
dismissal.
Kesavananda Bharti with the help of his lawyer
In this case also, SC gives ruling in favour of
Nanabhai Palkhivala filed a case in SC on the
supremacy of Article 368.
ground of violation of Article 26.
Third Case,
SC in its judgement said, Parliament can amend
Golaknath v. State of Punjab (1967) any part of the Constitution including
Fundamental Rights but without disturbing the
Golaknath brothers had more than 500 acres of
“Basic Structure” of the Constitution.
land and this land was to be handed over to
State of Punjab under land reforms provisions. This case was heard by the largest ever
constitutional bench of 13 judges.
They filed the petition in SC mentioning that
they acquired the property as per provisions of However, point to note here is that “Basic
Article 31 and taking away their land was Structure” is nowhere mentioned and defined in
abridgement of Fundamental Rights. the Indian Constitution.
This case was heard by till then the largest SC interpreted it in the upcoming cases
constitutional bench comprising of 11 judges. judgements whether which constitutional
provision forms a part of Basic Structure or not.
SC in its judgement, overruled its previous
judgements and said Article 13 was more Elements of the Basic Structure
powerful and Fundamentals rights cannot be Parliament under Article 368 can amend any
amended by the Parliament as they are part of the Constitution including the
sacrosanct. Fundamental Rights but without affecting the
After this judgement, parliament felt that their ‘basic structure’ of the Constitution.
powers have been reduced. So, in 1971, the then However, the Supreme Court is yet to define or
Indira Gandhi government introduced 24th clarify as to what constitutes the ‘basic
Constitutional Amendment Act under which few structure’ of the Constitution.
changes were introduced in Article 368 itself.
The changes introduced were that Parliament From the various judgements, the following
can amend any provision of the Constitution have emerged as ‘basic features’ of the
including the Fundamental Rights. Constitution or elements of the ‘basic structure’
of the constitution:
Second change under this amendment was that
any constitutional amendment bill that has been • Supremacy of the Constitution
passed, President has to provide his consent on • Sovereign, democratic and republican
it. He cannot withhold or return the bill for nature of the Indian polity
reconsideration. • Secular character of the Constitution
• Separation of powers between the
Now after 24th constitutional amendment act legislature, the executive and the judiciary
1971, Parliament was all powerful. Some • Federal character of the Constitution
scholars pointed out that it was felt that
• Unity and integrity of the nation
Democracy was in real Danger after this
• Welfare state (socio-economic justice)
incident.
• Judicial review
Next comes, • Freedom and dignity of the individual
• Parliamentary system
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• Rule of law ❖ Unity and integrity of the nation

• Harmony and balance between • Kesavananda Bharati v. State of Kerala
Fundamental Rights and Directive Principles (1973)
• Principle of equality • Raghunath Rao v. Union of India (1993)
• Free and fair elections • S.R. Bommai v. Union of India (1994)
• Independence of Judiciary
• Limited power of Parliament to amend the ❖ Welfare state (socio-economic justice)
Constitution • Kesavananda Bharati v. State of Kerala
• Effective access to justice (1973)
• Principles (or essence) underlying • Bhim Singhji v. Union of India (1981)
fundamental rights
• Powers of the Supreme Court under Articles ❖ Judicial review
32, 136, 141 and 142 • Indira Nehru Gandhi v. Raj Narain (1975)
• Powers of the High Courts under Articles • Minerva Mills v. Union of India (1980)
226 and 227 • S.P. Sampath Kumar v. Union of India (1987)
• P. Sambamurthy v. State of A.P. (1987)
Evolution of the Basic Structure of the
• S.R. Bommai v. Union of India (1994)
Constitution
• I.R. Coelho v. State of Tamil Nadu (2007)
❖ Supremacy of the Constitution • Madras Bar Association v. Union of India
• Kesavananda Bharati v. State of Kerala (2014)
(1973)
❖ Freedom and dignity of the individual
❖ Sovereign, democratic and republican • Kesavananda Bharati v. State of Kerala
nature of the Indian polity (1973)
• Kesavananda Bharati v. State of Kerala • Namit Sharma v. Union of India (2013)
(1973)
• Indira Nehru Gandhi v. Raj Narain (1975) ❖ Parliamentary system
• Kihoto Hollohon v. Zachilhu (1993) • Kesavananda Bharati v. State of Kerala
• S.R. Bommai v. Union of India (1994) (1973)
• Kuldip Nayar v. Union of India (2006)
❖ Rule of law
❖ Secular character of the Constitution • Indira Nehru Gandhi v. Raj Narain (1975)
• Kesavananda Bharati v. State of Kerala • S.P. Sampath Kumar v. Union of India
(1973) (1987)
• Indira Nehru Gandhi v. Raj Narain (1975) • P. Sambamurthy v. State of A.P. (1987)
• S.R. Bommai v. Union of India (1994) • Indra Sawhney v. Union of India (1992)
• I.R. Coelho v. State of Tamil Nadu (2007)
❖ Separation of powers between the
legislature, the executive and the ❖ Harmony and balance between
judiciary Fundamental Rights and Directive
• Kesavananda Bharati v. State of Kerala Principles
(1973) • Minerva Mills v. Union of India (1980)
• I.R. Coelho v. State of Tamil Nadu (2007)
❖ Principle of equality
❖ Federal character of the Constitution • Indira Nehru Gandhi v. Raj Narain (1975)
• Kesavananda Bharati v. State of Kerala • Raghunath Rao v. Union of India (1993)
(1973) • Indra Sawhney II v. Union of India (2000)
• S.R. Bommai v. Union of India (1994) • M. Nagaraj v. Union of India (2006)
• I.R. Coelho v. State of Tamil Nadu (2007)
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• I.R. Coelho v. State of Tamil Nadu (2007) On 12th June 1975, Allahabad HC in its
judgement, declared the 1971 Lok Sabha
❖ Free and fair elections elections as void and also ordered that Indira
• Indira Nehru Gandhi v. Raj Narain (1975) Gandhi cannot contest elections for next six
• Kihoto Hollohon v. Zachilhu (1993) years.
• Kuldip Nayar v. Union of India (2006) Indira Gandhi challenged this decision of
Allahabad High Court in Supreme Court.
❖ Independence of Judiciary Supreme Court was on vacation at that time and
• Kumar Padma Prasad v. Union of India hence, conditional stay was put on Allahabad
(1992) HC’s decision.
• All India Judge’s Association v. Union of
India (2002) During this time, the 5th President of India FA
Ahmed declared National Emergency in the
❖ Limited power of Parliament to amend country on the ground of internal disturbance.
the Constitution This was 3rd time emergency when emergency
• Minerva Mills v. Union of India (1980) was declared in the country. (Other two
instances in the past when emergency was
❖ Effective access to justice declared were in 1961 during India-China war
• Central Coal Fields Ltd., v. Jaiswal Coal Co. and in 1971 during India-Pak war).
(1980) 39th Constitutional Amendment Act (1975) was
introduced in the meantime, which says election
❖ Principles (or essence) underlying to the post of President, Vice President, and
fundamental rights persons holding the office of Prime Minister and
• I.R. Coelho v. State of Tamil Nadu (2007) Lok Sabha speaker will not be subjected to
judicial review.
❖ Powers of the Supreme Court under
Articles 32, 136, 141 and 142 After emergency, Indira Gandhi again contested
• Delhi Judicial Service Association v. State of the elections in 1977 but lost this time.
Gujarat (1991) Minerva Mills v. Union of India (1980)
• Ram Jethmalani v. Union of India (2011)
Minerva Mills was a cloth mill in Karnataka and
❖ Powers of the High Courts under Articles due to low productivity, this mill was running
226 and 227 under loss.
• L. Chandra Kumar v. Union of India (1997)
Karnataka govt. undertook the management of
• Madras Bar Association v. Union of India
this mill under the provisions of Sick Textiles
(2014)
Understanding (Nationalisation) Act 1974.
Few Landmark Cases (in detail) Mineral mills owners challenged the validity of
We will now discuss the few landmark cases: this act in Supreme Court.
Indira Nehru Gandhi v. Raj Narain (1975) Supreme Court in its verdict, mentioned the
During 1971 Lok Sabha elections, Indira Nehru importance of balance between Fundamental
Gandhi and Raj Narain contested from the Rights and DPSPs.
Raebarelli constituency, in which Indira Gandhi Article 14, 19 and 21 are supreme and they will
won the elections and became Prime Minister. take precedence over DPSPs.
Raj Narain filed the petition in the Allahabad S R Bommai v. Union of India (1994)
High Court alleging that Indira Gandhi used
corrupt practices during her election campaign SR Bommai was Karnataka CM during 1988-89.
and the election should be declared void.

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In 1989, governor of Karnataka proclaimed 10% reservation: Economy backward classes

State Emergency.
Reservation is valid in promotions also
SR Bommai was not given a chance to prove his
The commission submitted its report in 1979. In
majority in the floor of the house. Against this,
1990, VP Singh government implemented
SR Bommai filed petition in SC on the ground of
Mandal Commission’s recommendations.
misuse of powers of Governor to proclaim State
emergency under Article 356. In 1992, Indra Sawhney challenged this
implementation in SC on the ground that
SC in its judgement, there has to be some
reservation on economic grounds and
materialistic basis or clear evidences that
reservation in promotions is unconstitutional.
administrative machinery of the state is
incapable of conducting its business, then only SC in its verdict declared, reservation on
State emergency can be proclaimed by the economic grounds and reservation in
Governor using powers under Article 356. promotions void.
Use of Article 356 under malafide intentions is SC also mentioned that reservations should not
null and void. cross 50% ceiling limit.
It reserved the Federal structure and smoothen Creamy layer concept within OBCs was also
the Centre-State relations. introduced.
Indra Sawhney v. Union of India (1992) In 2019, EWS sub-category in General category
was created for 10% reservation on Economic
In 1979, during Morarji Desai government, a
grounds.
commission (Mandal Commission) was setup.
This is created through 103rd Constitutional
Recommendations of Mandal Commission:
Amendment Act.
27% reservation: OBCs

********

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Chapter 7 – Union and its Territory

Articles 1 to 4 under Part-I of the Constitution 3. Territories that may be acquired by the
deal with the Union and its territory. Government of India

Union of States The names of states and union territories and

Article 1 describes India, that is, Bharat as a their territorial extent are mentioned in the first
‘Union of States’. schedule of the Constitution.

The provisions of the Constitution pertaining to

the states are applicable to all the states in the
same manner.

The special provisions applicable to the States of

Maharashtra, Gujarat, Nagaland, Assam,
Manipur, Andhra Pradesh, Telangana, Sikkim,
Mizoram, Arunachal Pradesh, Goa and
Karnataka override the general provisions
relating to the states as a class.
Fifth and Sixth Schedules contain separate
provisions with respect to the administration of
scheduled areas and tribal areas within the
states.

The states are the members of the federal

According to Article 1, the territory of India can system and share a distribution of powers with
be classified into three categories: the Centre.
1. Territories of the states The union territories and the acquired
2. Union territories territories, on the other hand, are directly
administered by the Central government.
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Article 2 empowers the Parliament to ‘admit

into the Union of India, or establish, new states
on such terms and conditions as it thinks fit’.
(b) increase the area of any state,
Thus, Article 2 grants two powers to the (c) diminish the area of any state,
Parliament: (d) alter the boundaries of any state,
(e) alter the name of any state.
(a) the power to admit into the Union of India
new states
Article 3 lays down two conditions in this
regard.

(b) the power to establish new states.

Parliament’s Power to Reorganise the

States

Article 3 authorises the Parliament to:

(a) form a new state by separation of territory

from any state or by uniting two or more states
or parts of states or by uniting any territory to a
part of any state, It is not necessary to make a fresh reference to
the state legislature every time an amendment
to the bill is moved and accepted in Parliament.
In case of a union territory, no reference need be
made to the concerned legislature to ascertain

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its views and the Parliament can itself take any The Supreme Court held that the power of
action as it deems fit. Parliament to diminish the area of a state (under
Article 3) does not cover cession of Indian
Constitution authorises the Parliament to form
territory to a foreign country.
new states or alter the areas, boundaries or
names of the existing states without their
consent.

Hence, the territorial integrity or continued

Supreme Court in 1969 ruled that, settlement of
existence of any state is not guaranteed by the
a boundary dispute between India and another
Constitution.
country does not require a constitutional
amendment.
It can be done by executive action as it does not
involve cession of Indian territory to a foreign
country.

Constitution (Article 4) itself declares that laws

made for admission or establishment of new
states (under Article 2) and formation of new
states and alteration of areas, boundaries or
names of existing states (under Articles 3) are
not to be considered as amendments of the
Constitution under Article 368.

Integration of Princely States

At the time of independence
Does the power of Parliament to diminish
the areas of a state (under Article 3) include
also the power to cede Indian territory to a
foreign country?

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In 1950, the Constitution contained a four-fold

classification of the states of the Indian Union—
Part A, Part B, Part C and Part D State.

It identified four major factors that can be taken

into account in any scheme of reorganisation of
states:
• Preservation and strengthening of the unity
There has been a demand from different and security of the country.
regions, particularly South India, for • Linguistic and cultural homogeneity.
reorganisation of states on linguistic basis. • Financial, economic and administrative
considerations.
• Planning and promotion of the welfare of the
people in each state as well as of the nation
as a whole.
The commission suggested the abolition of the
four-fold classification of states under the
original Constitution and creation of 16 states
and 3 centrally administered territories.

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By the States Reorganisation Act (1956) and the

7th Constitutional Amendment Act (1956), the
distinction between Part-A and Part-B states
was done away with and Part-C states were
abolished.

Some of them were merged with adjacent states

and some other were designated as union
territories.

New States and Union Territories

created after 1956
Maharashtra and Gujarat

Dadra and Nagar Haveli

Goa, Daman and Diu

Puducherry

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Sikkim

Nagaland

Haryana, Chandigarh and Himachal Pradesh

Mizoram, Arunachal Pradesh and Goa

Manipur, Tripura and Meghalaya Chhattisgarh, Uttarakhand and Jharkhand

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Telangana Daman & Diu and Dadra & Nagar Haveli

Jammu & Kashmir and Ladakh

Change of Names

Old Name New Name Year

United Province Uttar Pradesh 1950
Madras Tamil Nadu 1969
Mysore Karnataka 1973
Laccadive, Minicoy &
Lakshadweep 1973
Amindivi Islands
Union Territory of
NCT of Delhi 1992
Delhi
Uttaranchal Uttarakhand 2006
Pondicherry Puducherry 2006
Orissa Odisha 2011

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Chapter 8 – Citizenship

Kinds of People

Constitutional Provisions
Constitution deals with the citizenship from
Articles 5 to 11 under Part II.
❖ It contains neither any permanent nor any
elaborate provisions in this regard.
❖ It only identifies the persons who became
citizens of India at its commencement (i.e.,
on January 26, 1950).
❖ It does not deal with the problem of
acquisition or loss of citizenship
Rights and privileges conferred on subsequent to its commencement.
Citizens only ❖ It empowers the Parliament to enact a law to
• Right against discrimination on grounds of provide for such matters and any other
religion, race, caste, sex or place of birth. matter relating to citizenship.
• Right to equality of opportunity in the
❖ Accordingly, the Parliament has enacted the
matter of public employment.
Citizenship Act, 1955, which has been
• Right to freedom of speech and expression,
amended several times.
assembly, association, movement, residence
and profession. According to the Constitution, the following four
• Cultural and educational rights. categories of persons became the citizens of
• Right to vote in elections to the Lok Sabha India at its commencement.
and state legislative assembly.
Domiciled in India
• Right to contest for the membership of the
Parliament and the state legislature.
• Eligibility to hold certain public offices, that
is, President of India, Vice- President of
India, judges of the Supreme Court and the
high courts, governor of states, attorney
general of India and advocate general of
states.
Along with the above rights, the citizens also
owe certain duties towards the Indian State.

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Migrated to India from Pakistan

Other constitutional provisions:

• No person shall be a citizen of India or be
deemed to be a citizen of India, if he has
voluntarily acquired the citizenship of any
foreign state.
• Every person who is or is deemed to be a
citizen of India shall continue to be such
citizen, subject to the provisions of any law
made by Parliament.
• Parliament shall have the power to make any
provision with respect to the acquisition and
termination of citizenship and all other
matters relating to citizenship.

Citizenship Act, 1955

Migrated to Pakistan from India

This Act has been amended so far nine times by

the following Acts:
1. The Citizenship (Amendment) Act, 1957
2. The Repealing and Amending Act, 1960
3. The Citizenship (Amendment) Act, 1985
4. The Citizenship (Amendment) Act, 1986
5. The Citizenship (Amendment) Act, 1992
6. The Citizenship (Amendment) Act, 2003
7. The Citizenship (Amendment) Act, 2005
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8. The Citizenship (Amendment) Act, 2015 • A person born outside India on or

after 10th December 1992 is considered
9. The Citizenship (Amendment) Act, 2019
as a citizen of India if either of his
Acquisition of Citizenship parents is a citizen of India at the time
The Citizenship Act of 1955 prescribes five ways of his birth.
of acquiring citizenship, viz, birth, descent,
registration, naturalisation and
incorporation of territory. From 3rd December 2004 onwards, a person
born outside India shall not be a citizen of India
By Birth by descent, unless his birth is registered at an
Indian consulate within one year of the date of
• A person born in India on or after 26th birth or with the permission of the Central
January 1950 but before 1st July 1987 is a Government, after the expiry of the said period.
citizen of India by birth irrespective of the • An application, for registration of the birth of
nationality of his parents. a minor child, to an Indian consulate shall be
accompanied by an undertaking in writing
• A person born in India on or after 1st July from the parents of such minor child that he
1987 is considered as a citizen of India only or she does not hold the passport of
if either of his parents is a citizen of India at another country.
the time of his birth. • Further, a minor who is a citizen of India by
virtue of descent and is also a citizen of any
other country shall cease to be a citizen of
• Those born in India on or after 3rd India if he does not renounce the
December 2004 are considered citizens of citizenship or nationality of another
India only if both of their parents are country within six months of his attaining
citizens of India or one of whose parents is full age.
a citizen of India and the other is not an
illegal migrant at the time of their birth. By Registration

The Central Government may, on an application,

register as a citizen of India any person (not
being an illegal migrant) if he belongs to any of
the following categories:
• a person of Indian origin who is ordinarily
resident in India for seven years before
making an application for registration.
• a person of Indian origin who is ordinarily
resident in any country or place outside
The children of foreign diplomats posted in undivided India.
India and enemy aliens cannot acquire Indian • a person who is married to a citizen of India
citizenship by birth. and is ordinarily resident in India for seven
years before making an application for
By Descent registration
• minor children of persons who are citizens
• A person born outside India on or after 26th of India.
January 1950 but before 10th December • a person of full age and capacity whose
1992 is a citizen of India by descent, if his parents are registered as citizens of India
father was a citizen of India at the time of • a person of full age and capacity who, or
his birth. either of his parents, was earlier citizen of
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independent India, and is ordinarily resident • during the fourteen years immediately
in India for twelve months immediately preceding the said period of twelve months,
before making an application for he has either resided in India or been in the
registration service of a Government in India, or partly
• a person of full age and capacity who has the one and partly the other, for periods
been registered as an overseas citizen of amounting in the aggregate to not less than
India cardholder for five years, and who is eleven years.
ordinarily resident in India for twelve • he is of good character
months before making an application for • he has an adequate knowledge of a language
registration. specified in the Eighth Schedule to the
Constitution, and
Person of Indian origin
• in the event of a certificate of naturalisation
A person shall be deemed to be of Indian origin being granted to him, he intends to reside in
if he, or either of his parents, was born in India, or to enter into or continue in, service
undivided India or in such other territory which under a Government in India or under an
became part of India after the 15th August, international organisation of which India is
1947. a member or under a society, company or
body of persons established in India.
Ordinary Resident
• The Government of India may waive all or
A person shall be deemed to be ordinarily any of the above conditions for
resident in India if: naturalisation in the case of a person who
has rendered distinguished service to the
• He has resided in India throughout the
science, philosophy, art, literature, world
period of twelve months immediately before
peace or human progress.
making an application for registration, and
• He has resided in India during the eight Every naturalised citizen must take an oath of
years immediately preceding the said period allegiance to the Constitution of India.
of twelve months for a period of not less than
Special provisions as to citizenship of
six years.
persons covered by the Assam Accord
By Naturalisation
The Citizenship (Amendment) Act, 1985, added
The Central Government may, on an application, the following special provisions as to citizenship
grant a certificate of naturalisation to any of persons covered by the Assam Accord (which
person (not being an illegal migrant) if he related to the foreigners’ issue):
possesses the following qualifications:
• he is not a subject or citizen of any country
where citizens of India are prevented from
becoming subjects or citizens of that country
by naturalisation.
• if he is a citizen of any country, he
undertakes to renounce the citizenship of
that country in the event of his application
for Indian citizenship being accepted.
• he has either resided in India or been in the
service of a Government in India or partly
the one and partly the other, throughout the
period of twelve months immediately
preceding the date of the application.

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• Any citizen of India of full age and capacity

can make a declaration renouncing his
Indian citizenship. Upon the registration of
that declaration, that person ceases to be a
citizen of India. However, if such a
declaration is made during a war in which
India is engaged, its registration shall be
withheld by the Central Government.
• Further, when a person renounces his Indian
citizenship, every minor child of that person
also loses Indian citizenship. However, when
such a child attains the age of eighteen, he
may resume Indian citizenship.
By Termination
When an Indian citizen voluntarily (consciously,
knowingly and without undue influence or
compulsion) acquires the citizenship of another
country, his Indian citizenship automatically
terminates.
This provision, however, does not apply
during a war in which India is engaged.
By Deprivation
It is a compulsory termination of Indian
citizenship by the Central government, if the
citizen has

By Incorporation of Territory • obtained the citizenship by fraud

• shown disloyalty to the Constitution of India
• unlawfully traded or communicated with the
• If any foreign territory becomes a part of enemy during a war
India, the Government of India specifies the • within five years after registration or
persons who among the people of the naturalisation, been imprisoned in any
territory shall be the citizens of India. Such country for two years
persons become the citizens of India from • been ordinarily resident out of India for
the notified date. seven years continuously
• For example, when Pondicherry became a
part of India, the Government of India issued Single Citizenship
the Citizenship (Pondicherry) Order, 1962, The citizens in India owe allegiance only to the
under the Citizenship Act, 1955. Union. There is no separate state citizenship as
in the cases of other federal states like USA and
Loss of Citizenship Switzerland, which adopted the system of
The Citizenship Act, 1955, prescribes three double citizenship.
ways of losing citizenship whether acquired
under the Act or prior to it under the
Constitution, viz, renunciation, termination
and deprivation
By Renunciation
In India, all citizens irrespective of the state in
which they are born or reside enjoy the same
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political and civil rights of citizenship all over The Central Government may, on an application
the country and no discrimination is made made in this behalf, register as an Overseas
between them. Citizen of India Cardholder:
However, this general rule of absence of • any person of full age and capacity
discrimination is subject to some exceptions.
o who is a citizen of another country, but
• Under Article 15: Prohibition of was a citizen of India at the time of, or at
discrimination against any citizen on any time after the commencement of the
grounds of religion, race, caste, sex or place Constitution; or
of birth and not on the ground of residence.
o who is a citizen of another country, but
• Under Article 16: Equality of opportunity in
was eligible to become a citizen of India at
matters of public employment.
the time of the commencement of the
• Under Article 19: Right to move freely and
Constitution; or
reside and settle in any part of the territory
of India o who is a citizen of another country, but
belonged to a territory that became part
Overseas Citizenship of India of India after the 15th August,1947; or
• In September 2000, the Government of India
had set-up a High-Level Committee on the o who is a child or a grandchild or a great
Indian Diaspora under the Chairmanship of grandchild of such a citizen; or
L.M. Singhvi. • a person, who is a minor child of a person
• The committee submitted its report in mentioned in clause (a); or
January 2002.
• It recommended the amendment of the • a person, who is a minor child, and whose
Citizenship Act, 1955, to provide for grant of both parents are citizens of India or one of
dual citizenship to the Persons of Indian the parents is a citizen of India; or
Origin (PIOs) belonging to certain specified • spouse of foreign origin of a citizen of India
countries. or spouse of foreign origin of an Overseas
• Accordingly, the citizenship (Amendment) Citizen of India Cardholder and whose
Act, 2003, made provision for acquisition of marriage has been registered and subsisted
Overseas Citizenship of India (OCI) by the for a continuous period of not less than two
PIOs of 16 specified countries other than years immediately preceding the
Pakistan and Bangladesh. presentation of the application.
• Later, the Citizenship (Amendment) Act,
2005, expanded the scope of grant of OCI for No person, who or either of whose parents or
PIOs of all countries except Pakistan and grandparents or great grandparents is or
Bangladesh. had been a citizen of Pakistan, Bangladesh or
• Again, the Citizenship (Amendment) Act, such other country as the Central Government
2015, has modified the provisions may, specify, shall be eligible for registration
pertaining to the OCI in the Principal Act. It as an Overseas Citizen of India Cardholder.
has introduced a new scheme called The Central Government may specify the date
“Overseas Citizen of India Cardholder” by from which the existing persons of Indian Origin
merging the PIO card scheme and the OCI Cardholders shall be deemed to be Overseas
card scheme. Citizens of India Cardholders.
Registration of Overseas Citizen of India Conferment of Rights on Overseas Citizen of
Cardholder India Cardholder
• An Overseas Citizen of India Cardholder
shall be entitled to such rights, as the Central
Government may specify in this behalf.
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• An Overseas Citizen of India Cardholder Cancellation of Registration as Overseas

shall not be entitled to the following rights Citizen of India Cardholder
(which are conferred on a citizen of India)— The Central Government may cancel the
registration of a person as an Overseas Citizen
o He shall not be entitled to the right to
of India Cardholder, if it is satisfied that
equality of opportunity in matters of
public employment. • the registration as an Overseas Citizen of
India Cardholder was obtained by means of
o He shall not be eligible for election as
fraud, false representation or the
President, Vice President.
concealment of any material fact; or
o He shall not be eligible for appointment
• the Overseas Citizen of India Cardholder has
as a Judge of the Supreme Court, High
shown disaffection towards the Constitution
Courts.
of India; or
o He shall not be entitled for registration
• the Overseas Citizen of India Cardholder has,
as a voter.
during any war in which India may be
o He shall not be eligible for being a engaged, unlawfully traded or
member of the Parliament or State communicated with an enemy; or
Legislative Assembly or the State
Legislative Council. • the Overseas Citizen of India Cardholder has,
within five years after registration, been
o He shall not be eligible for appointment sentenced to imprisonment for a term of not
to public services and posts in less than two years; or
connection with affairs of the Union or
of any State except for appointment in • it is necessary so to do in the interests of the
such services and posts as the Central sovereignty and integrity of India, the
Government may specify. security of India, friendly relations of India
with any foreign country, or in the interests
Renunciation of Overseas Citizen of India of the general public; or
Card
• If any Overseas Citizen of India Cardholder • the marriage of an Overseas Citizen of India
makes a declaration renouncing the Card Cardholder
registering him as an Overseas Citizen of o has been dissolved by a competent court
India Cardholder, the declaration shall be of law or otherwise; or
registered by the Central Government, and o has not been dissolved but, during the
upon such registration, that person shall subsistence of such marriage, he has
cease to be an Overseas Citizen of India solemnised marriage with any other
Cardholder. person.
• Where a person ceases to be an Overseas Provisions made under Citizenship
Citizen of India Cardholder, the spouse of
Amendment Act, 2019
foreign origin of that person, who has
Any person belonging to Hindu, Sikh, Buddhist,
obtained Overseas Citizen of India Card, and
Jain, Parsi or Christian community from
every minor child of that person registered
Afghanistan, Bangladesh or Pakistan, who
as an Overseas Citizen of India Cardholder
entered into India on or before the 31st day of
shall thereupon cease to be an Overseas
December, 2014 and who has been exempted
Citizen of India Cardholder.
by the Central Government of the Passport
(Entry into India) Act, 1920 or from the
application of the provisions of the Foreigners
Act, 1946 or any rule or order made thereunder,
shall not be treated as illegal migrant.

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*******

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Chapter 9 – Fundamental Rights

The Fundamental Rights are enshrined in Part 4. Right to freedom of religion

III of the Constitution.
5. Cultural and educational rights
6. Right to property
7. Right to constitutional remedies
Part III of the Constitution is rightly described as
the Magna Carta of India.

Features of Fundamental Rights

• Some of them are available only to the
citizens while others are available to all
persons.
• The Fundamental Rights are guaranteed by
the Constitution to all persons without any
discrimination.
• They uphold the equality of all individuals, • They are not absolute but qualified. The
the dignity of the individual, the larger state can impose reasonable restrictions on
public interest and unity of the nation. them.
• The Fundamental Rights are meant for
promoting the ideal of political democracy.
• Some of them are negative in character, that
• They prevent the establishment of an
is, place limitations on the authority of the
authoritarian and despotic rule in the State, while others are positive in nature,
country, and protect the liberties and
conferring certain privileges on the persons.
freedoms of the people against the invasion
by the State.
• They are justiciable, allowing persons to
move the courts for their enforcement, if and
Why Fundamental Rights are referred to as
when they are violated.
Fundamental?
• They are defended and guaranteed by the
Supreme Court.

• They are not sacrosanct or permanent.

Originally, the Constitution provided for seven

Fundamental Rights
1. Right to equality
2. Right to freedom
3. Right against exploitation

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• They can be suspended during the operation

of a National Emergency.

Definition of State

Article 12 has defined the term ‘State’ for the

purposes of Part III.

According to it, the State includes the following:

• Government and Parliament of India, that is,

executive and legislative organs of the Union
government.
• Government and legislature of states, that is,
executive and legislative organs of state
government.
• All local authorities, that is, municipalities,
panchayats, district boards, improvement
trusts, etc.
• All other authorities, that is, statutory or
non-statutory authorities like LIC, ONGC,
SAIL, etc.

Laws inconsistent with Fundamental

Rights
Article 13 declares that all laws that are
inconsistent with or in derogation of any of the
fundamental rights shall be void.

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Right to Equality

Rule of Law

• Absence of arbitrary power, that is, no man

can be punished except for a breach of law.
• No man is above the law, but every man,
whatever be his rank or condition, is subject
to the ordinary law of the realm and
amenable to the jurisdiction of the ordinary
tribunals.
• Every official from the Prime Minister down
to a constable or a collector of taxes, is under
the same responsibility for every act done
without legal justification as any other
citizen.

Equality before Law and Equal Protection of

Laws

The term ‘law’ in Article 13 includes: State shall not deny to any person equality
before the law or the equal protection of the
• Permanent laws enacted by the Parliament laws within the territory of India.
or the state legislatures
• Temporary laws like ordinances issued by
the president or the state governors
• Statutory instruments in the nature of
delegated legislation (executive legislation)
like order, bye-law, rule, regulation or
notification

Article 13 declares that a constitutional

amendment is not a law and hence cannot be
challenged.
‘Equality before law’

• absence of any special privileges in favour of

any person.
• equal subjection of all persons to the
ordinary law of the land administered by
ordinary law courts.
• no person (whether rich or poor, high or
low, official or non-official) is above the law.

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‘Equal protection of the laws’ to the President or the Governor, or left

at his office stating the nature of the
• equality of treatment under equal proceedings, the cause of action
circumstances. therefore, the name, description and
• similar application of the same laws to all place of residence of the party by whom
persons who are similarly situated. such proceedings are to be instituted and
• like should be treated alike without any the relief which he claims.
discrimination.
• No person shall be liable to any civil or
criminal proceedings in any court in respect
of the publication in a newspaper (or by
radio or television) of a substantially true
report of any proceedings of either House of
Parliament or either House of the
Legislature of a State.

• No member of Parliament shall be liable to

any proceedings in any court in respect of
anything said or any vote given by him in
Parliament or any committee thereof.

• No member of the Legislature of a state shall

be liable to any proceedings in any court in
Exceptions to Equality respect of anything said or any vote given by
him in the Legislature or any committee
The rule of equality before law is not absolute thereof.
and there are constitutional and other
exceptions to it. • The foreign sovereigns (rulers),
ambassadors and diplomats enjoy immunity
• The President of India and the Governor of from criminal and civil proceedings.
States enjoy the following immunities.
• The UNO and its agencies enjoy the
o The President or the Governor is not diplomatic immunity.
answerable to any court for the exercise
and performance of the powers and
duties of his office.
Prohibition of Discrimination on Certain
o No criminal proceedings shall be
Grounds
instituted or continued against the
President or the Governor in any court
during his term of office. • Article 15 provides that the State shall not
o No process for the arrest or discriminate against any citizen on grounds
imprisonment of the President or the only of religion, race, caste, sex or place of
Governor shall be issued from any court birth.
during his term of office.
o No civil proceedings in which relief is
claimed against the President, or the
Governor of a State, shall be instituted
during his term of office in any court in • Article 15 says that no citizen shall be
respect of any act done by him in his subjected to any disability, liability,
personal capacity, whether before or restriction or condition on grounds only of
after he entered upon his office as religion, race, caste, sex, or place of birth
President, or as Governor of such State, with regard to
until the expiration of two months next
after notice in writing has been delivered
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o access to shops, public restaurants,

hotels and places of public
entertainment; or
o the use of wells, tanks, bathing ghats,
road and places of public resort
maintained wholly or partly by State
funds or dedicated to the use of general
public.

• The state is permitted to make any special

provision for women and children.

• The state is permitted to make any special

provision for the advancement of any
socially and educationally backward classes
of citizens or for the scheduled castes and
scheduled tribes
• The state is empowered to make any special
provision for the advancement of any
socially and educationally backward classes
of citizens or for the scheduled castes or the
scheduled tribes regarding their admission
to educational institutions including private
educational institutions, whether aided or
unaided by the state, except the minority
educational institutions.

Equality of Opportunity in Public

Employment
Article 16 provides for equality of opportunity
for all citizens in matters of employment or
appointment to any office under the State.
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No citizen can be discriminated against or be

ineligible for any employment or office under
the State on grounds of only religion, race, caste,
sex, descent, place of birth or residence.

Parliament can prescribe residence as a

condition for certain employment or
appointment in a state or union territory or
local authority or other authority.

As the Public Employment (Requirement as to

Residence) Act of 1957 expired in 1974, there is
no such provision for any state except Andhra
Pradesh and Telangana.

The State can provide for reservation of

appointments or posts in favour of any
backward class that is not adequately
represented in the state services.

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The act declares the following acts as offences:

A law can provide that the incumbent of an • preventing any person from entering any
office related to religious or denominational place of public worship or from worshipping
institution or a member of its governing body therein;
should belong to the particular religion or • justifying untouchability on traditional,
denomination. religious, philosophical or other grounds;
• denying access to any shop, hotel or places
Abolition of Untouchability of public entertainment;
• insulting a person belonging to scheduled
Article 17 abolishes ‘untouchability’ and forbids caste on the ground of untouchability;
its practice in any form. • refusing to admit persons in hospitals,
educational institutions or hostels
The enforcement of any disability arising out of established for public benefit;
untouchability shall be an offence punishable in • preaching untouchability directly or
accordance with law. indirectly; and
• refusing to sell goods or render services to
any person.

The Supreme Court held that the right under

Article 17 is available against private
individuals and it is the constitutional obligation
of the State to take necessary action to ensure
that this right is not violated.

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Abolition of Titles • Right to move freely throughout the

territory of India.
Article 18 abolishes titles and makes four • Right to reside and settle in any part of the
provisions in that regard: territory of India.
• It prohibits the state from conferring any • Right to practice any profession or to carry
title (except a military or academic on any occupation, trade or business.
distinction) on anybody, whether a citizen or
a foreigner.
• It prohibits a citizen of India from accepting
any title from any foreign state. Originally, Article 19 contained seven rights.
But, the right to acquire, hold and dispose of
• A foreigner holding any office of profit or
property was deleted.
trust under the state cannot accept any title
from any foreign state without the consent
of the president.
• No citizen or foreigner holding any office of
These six rights are protected against only state
profit or trust under the State is to accept
action and not private individuals.
any present, emolument or office from or
under any foreign State without the consent
These rights are available only to the citizens
of the president.
and to shareholders of a company but not to
foreigners or legal persons like companies or
The hereditary titles of nobility like Maharaja,
corporations, etc.
Raj Bahadur, Rai Bahadur, Rai Saheb, Dewan
Bahadur, etc, which were conferred by colonial
States are banned by Article 18 as these are
The State can impose ‘reasonable’ restrictions
against the principle of equal status of all.
on the enjoyment of these six rights only on the
grounds mentioned in the Article 19 itself and
• In 1996, the Supreme Court upheld the
not on any other grounds.
constitutional validity of the National
Awards—Bharat Ratna, Padma Vibhushan,
Padma Bhushan and Padma Sri. Freedom of Speech and Expression
• It ruled that these awards do not amount to
‘titles’ within the meaning of Article 18 that Every citizen has the right to express his views,
prohibits only hereditary titles of nobility. opinions, belief and convictions freely by word
Therefore, they are not violative of Article 18 of mouth, writing, printing, picturing or in any
as the theory of equality does not mandate other manner.
that merit should not be recognised. The Supreme Court held that the freedom of
• However, it also ruled that they should not speech and expression includes the following:
be used as suffixes or prefixes to the names
of awardees. Otherwise, they should forfeit • Right to propagate one’s views as well as
the awards. views of others.
• Freedom of the press.
• Freedom of commercial advertisements.
Right to Freedom
• Right against tapping of telephonic
conversation.
Protection of Six Rights
• Right to telecast, that is, government has no
monopoly on electronic media.
Article 19 guarantees to all citizens the six
• Freedom of silence.
rights. These are:

• Right to freedom of speech and expression.

• Right to assemble peaceably and without
arms.
• Right to form associations or unions or co-
operative societies.
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• Right against imposition of pre-censorship b) to forcibly occupy the property of some

on a newspaper. person;
c) to commit any mischief or criminal trespass;
d) to force some person to do an illegal act; and
e) to threaten the government or its officials on
• Right to demonstration or picketing but not exercising lawful powers.
right to strike.
Freedom of Association
The State can impose reasonable restrictions on
All citizens have the right to form associations
the exercise of the freedom of speech and
or unions or co-operative societies.
expression on the grounds of sovereignty and
integrity of India, security of the state, friendly
relations with foreign states, public order,
decency or morality, contempt of court,
defamation, and incitement to an offence.
It includes the right to form political parties,
Freedom of Assembly companies, partnership firms, societies, clubs,
organisations, trade unions or any body of
Every citizen has the right to assemble persons.
peaceably and without arms. It not only includes the right to start an
association or union but also to continue with
It includes the right to hold public meetings, the association or union as such.
demonstrations and take out processions.
Reasonable restrictions can be imposed on the
exercise of this right by the State on the grounds
of sovereignty and integrity of India, public
order and morality. Subject to these restrictions,
This provision does not protect violent, the citizens have complete liberty to form
disorderly, riotous assemblies, or one that associations or unions for pursuing lawful
causes breach of public peace or one that objectives and purposes.
involves arms.
Freedom of Movement

This freedom entitles every citizen to move

freely throughout the territory of the country.
The State can impose reasonable restrictions on
He can move freely from one state to another or
the exercise of right of assembly on two
from one place to another within a state.
grounds, namely, sovereignty and integrity of
India and public order including the
maintenance of traffic in the area concerned.
The grounds of imposing reasonable
restrictions on this freedom are two, namely,
Under Section 144 of Criminal Procedure Code
the interests of general public and the
(1973), a magistrate can restrain an assembly,
protection of interests of any scheduled tribe.
meeting or procession if there is a risk of
obstruction, annoyance or danger to human life,
The entry of outsiders in tribal areas is
health or safety or a disturbance of the public
restricted to protect the distinctive culture,
tranquillity or a riot or any affray.
language, customs and manners of scheduled
tribes and to safeguard their traditional
Under Section 141 of the Indian Penal Code, as
vocation and properties against exploitation.
assembly of five or more persons becomes
unlawful if the object is
a) to resist the execution of any law or legal
process;
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Freedom of Residence No ex-post-facto law

Every citizen has the right to reside and settle in No person shall be
any part of the territory of the country.
i. convicted of any offence except for violation
This right has two parts: of a law in force at the time of the
commission of the act, nor
a) the right to reside in any part of the country, ii. subjected to a penalty greater than that
which means to stay at any place prescribed by the law in force at the time of
temporarily, and the commission of the act.
b) the right to settle in any part of the country,
which means to set up a home or domicile at No double jeopardy
any place permanently.
No person shall be prosecuted and punished for
the same offence more than once.

Freedom of Profession, etc. No self-incrimination

All citizens are given the right to practise any No person accused of any offence shall be
profession or to carry on any occupation, trade compelled to be a witness against himself.
or business.

The State can impose reasonable restrictions on

the exercise of this right in the interest of the
general public.

Further, the State is empowered to:

An ex-post-facto law is one that imposes
a) prescribe professional or technical penalties retrospectively, that is, upon acts
qualifications necessary for practising any already done or which increases the penalties
profession or carrying on any occupation, for such acts. The enactment of such a law is
trade or business; and prohibited by the first provision of Article 20.
b) carry on by itself any trade, business,
industry or service whether to the exclusion This limitation is imposed only on criminal laws
(complete or partial) of citizens or and not on civil laws or tax laws. In other words,
otherwise. a civil liability or a tax can be imposed
retrospectively.
This right does not include the right to carry on
a profession or business or trade or occupation
that is immoral (trafficking in women or
children) or dangerous (harmful drugs or
explosives, etc,).

The State can absolutely prohibit these or

regulate them through licencing.
The protection against double jeopardy is
available only in proceedings before a court of
Protection in Respect of Conviction for
law or a judicial tribunal.
Offences
It is not available in proceedings before
Article 20 grants protection against arbitrary departmental or administrative authorities as
and excessive punishment to an accused person, they are not of judicial nature.
whether citizen or foreigner or legal person like
a company or a corporation.

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This means that the State can deprive the right

to life and personal liberty of a person based on
a law.

Supreme Court held that the ‘personal liberty’

means only liberty relating to the person or
body of the individual.
The protection against self-incrimination
extends to both oral evidence and documentary
evidence.

However, it does not extend to

i. compulsory production of material objects, Supreme Court overruled its judgement in the
ii. compulsion to give thumb impression, Gopalan case by taking a wider interpretation of
specimen signature, blood specimens, and the Article 21.
iii. compulsory exhibition of the body.
It ruled that the right to life and personal liberty
of a person can be deprived by a law provided
the procedure prescribed by that law is
Further, it extends only to criminal proceedings reasonable, fair and just.
and not to civil proceedings

Protection of Life and Personal Liberty

Article 21 declares that no person shall be

deprived of his life or personal liberty except
according to procedure established by law.

Further, the court held that the ‘right to life’ as

embodied in Article 21 is not merely confined to
animal existence or survival but it includes
within its ambit the right to live with human
dignity and all those aspects of life which go to
Supreme Court has taken a narrow make a man’s life meaningful, complete and
interpretation of the Article 21. worth living.

It held that the protection under Article 21 is

available only against arbitrary executive action Right to live with human dignity.
and not from arbitrary legislative action.
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Right to decent environment including pollution

free water and air and protection against
hazardous industries.

Right to privacy.
Protection Against Arrest and Detention

Article 22 grants protection to persons who are

arrested or detained.

Right to Education
Punitive detention is to punish a person for an
Article 21 A declares that the State shall provide offence committed by him after trial and
free and compulsory education to all children of conviction in a court.
the age of six to fourteen years in such a manner
as the State may determine. Preventive detention means detention of a
person without trial and conviction by a court.
Its purpose is not to punish a person for a past
offence but to prevent him from committing an
offence in the near future.

No democratic country in the world has made

preventive detention as an integral part of the
Constitution as has been done in India.
This amendment changed the subject matter of
Article 45 in directive principles. It is unknown in USA.

It now reads — ‘The state shall endeavour to It was resorted to in Britain only during first and
provide early childhood care and education for second world war time.
all children until they complete the age of six
years.’ In India, preventive detention existed even
during the British rule.

It also added a new fundamental duty under For example, the Bengal State Prisoners
Article 51A that reads — ‘It shall be the duty of Regulation of 1818 and the Defence of India Act
every citizen of India to provide opportunities of 1939 provided for preventive detention.
for education to his child or ward between the
age of six and fourteen years’. The Article 22 has two parts—the first part
deals with the cases of ordinary law and the
second part deals with the cases of preventive
detention law.
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• The first part of Article 22 confers the • the maximum period for which a person can
following rights on a person who is arrested be detained in any classes of cases under a
or detained under an ordinary law: preventive detention law; and
• the procedure to be followed by an advisory
o Right to be informed of the grounds of board in an inquiry.
arrest.
o Right to consult and be defended by a The 44th Amendment Act of 1978 has reduced
legal practitioner. the period of detention without obtaining the
o Right to be produced before a magistrate opinion of an advisory board from three to two
within 24 hours, excluding the journey months.
time. However, this provision has not yet been
o Right to be released after 24 hours unless brought into force, hence, the original period of
the magistrate authorises further three months still continues.
detention. The Constitution has divided the legislative
These safeguards are not available to an enemy power with regard to preventive detention
alien or a person arrested or detained under a between the Parliament and the state
preventive detention law. legislatures.
The Parliament has exclusive authority to make
The Supreme Court also ruled that the arrest a law of preventive detention for reasons
and detention in the first part of Article 22 do connected with defence, foreign affairs and the
not cover arrest under the orders of a court, civil security of India.
arrest, arrest on failure to pay the income tax. Both the Parliament as well as the state
legislatures can concurrently make a law of
They apply only to an act of a criminal or quasi- preventive detention for reasons connected
criminal nature. with the security of a state, the maintenance of
public order and the maintenance of supplies
• The second part of Article 22 grants and services essential to the community.
protection to persons who are arrested or
detained under a preventive detention law. The preventive detention laws made by the
• This protection is available to both citizens Parliament are:
as well as aliens and includes the following:
• Preventive Detention Act, 1950. Expired in
o The detention of a person cannot exceed 1969.
three months unless an advisory board • Maintenance of Internal Security Act (MISA),
reports sufficient cause for extended 1971. Repealed in 1978.
detention. The board is to consist of • Conservation of Foreign Exchange and
judges of a high court. Prevention of Smuggling Activities Act
o The grounds of detention should be (COFEPOSA), 1974.
communicated to the detenu. However, • National Security Act (NSA), 1980.
the facts considered to be against the • Prevention of Black marketing and
public interest need not be disclosed. Maintenance of Supplies of Essential
o The detenu should be afforded an Commodities Act (PBMSECA), 1980.
opportunity to make a representation • Terrorist and Disruptive Activities
against the detention order. (Prevention) Act (TADA), 1985. Repealed in
1995.
• Prevention of Illicit Traffic in Narcotic Drugs
Article 22 also authorises the Parliament to and Psychotropic Substances Act
prescribe (PITNDPSA), 1988.
• Prevention of Terrorism Act (POTA), 2002.
• the circumstances and the classes of cases in Repealed in 2004.
which a person can be detained for more
than three months under a preventive
detention law without obtaining the opinion
of an advisory board;
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Right against Exploitation However, in imposing such service, the State is

not permitted to make any discrimination on
Prohibition of Traffic in Human Beings and grounds only of religion, race, caste or class.
Forced Labour
Prohibition of Employment of Children in
Article 23 prohibits traffic in human beings, Factories, etc.
begar (forced labour) and other similar forms of
forced labour. Any contravention of this Article 24 prohibits the employment of children
provision shall be an offence punishable in below the age of 14 years in any factory, mine or
accordance with law. other hazardous activities like construction
work or railway.
The expression ‘traffic in human beings’ include But it does not prohibit their employment in any
harmless or innocent work.
• selling and buying of men, women and The Child Labour (Prohibition and Regulation)
children like goods; Act, 1986, is the most important law in this
• immoral traffic in women and children, direction.
including prostitution
• devadasis; and In 1996, the Supreme Court directed the
establishment of Child Labour Rehabilitation
• slavery.
Welfare Fund in which the offending employer
should deposit a fine of 20,000 for each child
To punish these acts, the Parliament has made
employed by him.
the Immoral Traffic (Prevention) Act13, 1956.
It also issued directions for the improvement of
education, health and nutrition of children.
The term ‘begar’ means compulsory work
without remuneration.
In 2006, the government banned the
employment of children as domestic servants or
It was a peculiar Indian system under which the
workers in business establishments like hotels,
local zamindars sometimes used to force their
dhabas, restaurants, shops, factories, resorts,
tenants to render services without any payment.
spas, tea shops and so on.
It warned that anyone employing children
In addition to begar, the Article 23 prohibits
below 14 years of age would be liable for
other ‘similar forms of forced labour’ like
prosecution and penal action.
‘bonded labour’.
Child Labour Amendment (2016)
The term ‘forced labour’ means compelling a
person to work against his will.
• The Child Labour (Prohibition and
The word ‘force’ includes not only physical or Regulation) Amendment Act, 2016,
legal force but also force arising from the amended the Child Labour (Prohibition and
compulsion of economic circumstances, that is, Regulation) Act, 1986.
working for less than the minimum wage. • It has renamed the Principal Act as the Child
and Adolescent Labour (Prohibition and
In this regard, the Bonded Labour System Regulation) Act, 1986.
(Abolition) Act, 1976; the Minimum Wages Act, • The Amendment Act prohibits the
1948; the Contract Labour Act, 1970 and the employment of children below 14 years in
Equal Remuneration Act, 1976 were made. all occupations and processes. Earlier, this
prohibition was applicable to 18
Article 23 also provides for an exception to this occupations and 65 processes.
provision. It permits the State to impose • Further, the Amendment Act prohibits the
compulsory service for public purposes, as for employment of adolescents (14 to 18 years
example, military service or social service, for of age) in certain hazardous occupations and
which it is not bound to pay. processes.
• The Amendment Act also introduces more
stringent punishment for the offenders. It is
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an imprisonment of 6 months to 2 years, or Hindus, in this context, include Sikhs, Jains and
a fine of 20,000 to 50,000, or both. In case of Buddhists.
repeated offences, the imprisonment is of 1
year to 3 years. Freedom to Manage Religious Affairs

Right to Freedom of Religion According to Article 26, every religious

denomination or any of its section shall have the
Freedom of Conscience and Free Profession, following rights:
Practice and Propagation of Religion
• Right to establish and maintain institutions
for religious and charitable purposes;
Article 25 says that all persons are equally
entitled to freedom of conscience and the right • Right to manage its own affairs in matters of
to freely profess, practice and propagate religion;
religion. • Right to own and acquire movable and
immovable property; and
The implications of these are: • Right to administer such property in
accordance with law.
• Freedom of conscience: Inner freedom of
an individual to mould his relation with God Article 25 guarantees rights of individuals, while
or Creatures in whatever way he desires. Article 26 guarantees rights of religious
• Right to profess: Declaration of one’s denominations or their sections.
religious beliefs and faith openly and freely.
Like the rights under Article 25, the rights under
• Right to practice: Performance of religious
Article 26 are also subject to public order,
worship, rituals, ceremonies and exhibition
morality and health but not subject to other
of beliefs and ideas.
provisions relating to the Fundamental Rights.
• Right to propagate: Transmission and
dissemination of one’s religious beliefs to
others or exposition of the tenets of one’s
The Supreme Court held that a religious
religion.
denomination must satisfy three conditions:
It does not include a right to convert another
• It should be a collection of individuals who
person to one’s own religion.
have a system of beliefs (doctrines) which
they regard as conducive to their spiritual
well-being;
These rights are available to all persons—
citizens as well as non-citizens. • It should have a common organisation; and
• It should be designated by a distinctive
However, these rights are subject to public name.
order, morality, health and other provisions Under the above criteria, the Supreme Court
relating to fundamental rights. held that the ‘Ramakrishna Mission’ and
‘Ananda Marga’ are religious denominations
Further, the State is permitted to: within the Hindu religion.
It also held that Aurobindo Society is not a
• regulate or restrict any economic, financial, religious denomination.
political or other secular activity associated
with religious practice; and
• provide for social welfare and reform or
throw open Hindu religious institutions of a Freedom from Taxation for Promotion of a
public character to all classes and sections of
Religion
Hindus.
Article 25 also contains two explanations: one,
• Article 27 lays down that no person shall be
wearing and carrying of kirpans is to be included
compelled to pay any taxes for the
in the profession of the Sikh religion; and two, the
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promotion or maintenance of any particular Cultural and Educational Rights

religion or religious denomination.
• The State should not spend the public money Protection of Interests of Minorities
collected by way of tax for the promotion or
maintenance of any particular religion.
• Article 29 provides that any section of the
• This provision prohibits the State from citizens residing in any part of India having
favouring, patronising and supporting one
a distinct language, script or culture of its
religion over the other. This means that the
own, shall have the right to conserve the
taxes can be used for the promotion or
same.
maintenance of all religions.
• Further, no citizen shall be denied admission
This provision prohibits only levy of a tax and
into any educational institution maintained
not a fee.
by the State or receiving aid out of State
This is because the purpose of a fee is to control
funds on grounds only of religion, race, caste,
secular administration of religious institutions
or language.
and not to promote or maintain religion.
Thus, a fee can be levied on pilgrims to provide
Article 29 grants protection to both religious
them some special service or safety measures.
minorities as well as linguistic minorities.
Freedom from Attending Religious
Instruction

• Under Article 28, no religious instruction The Supreme Court held that the scope of this
shall be provided in any educational article is not necessarily restricted to minorities
institution wholly maintained out of State only, as it is commonly assumed to be.
funds.
• This provision shall not apply to an This is because of the use of words ‘section of
educational institution administered by citizens’ in the Article that include minorities as
the State but established under any well as majority.
endowment or trust, requiring imparting
of religious instruction in such institution. Right of Minorities to Establish and
• Further, no person attending any Administer Educational Institutions
educational institution recognised by the
State or receiving aid out of State funds Article 30 grants the following rights to
shall be required to attend any religious minorities, whether religious or linguistic:
instruction or worship in that institution
without his consent. In case of a minor, the • All minorities shall have the right to
consent of his guardian is needed. establish and administer educational
institutions of their choice.
Article 28 distinguishes between four types of
• The compensation amount fixed by the State
educational institutions:
for the compulsory acquisition of any
property of a minority educational
• Institutions wholly maintained by the State. institution shall not restrict or abrogate the
right guaranteed to them.

• Institutions administered by the State but

• In granting aid, the State shall not
established under any endowment or trust.
discriminate against any educational
institution managed by a minority.

• Institutions recognised by the State.

• Institutions receiving aid from the State. Thus, the protection under Article 30 is confined
only to minorities (religious or linguistic) and

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does not extend to any section of citizens (as enforcement of the Fundamental Rights is
under Article 29). guaranteed.
• The Supreme Court shall have power to
The right under Article 30 also includes the right issue directions or orders or writs for the
of a minority to impart education to its children enforcement of any of the fundamental
in its own language. rights. The writs issued may include habeas
corpus, mandamus, prohibition, certiorari
Minority educational institutions are of three and quo-warranto.
types: • Parliament can empower any other court to
issue directions, orders and writs of all
• institutions that seek recognition as well as kinds. However, this can be done without
aid from the State; prejudice to the above powers conferred on
• institutions that seek only recognition from the Supreme Court.
the State and not aid; and
• institutions that neither seek recognition Any other court here does not include high
nor aid from the State. courts because Article 226 has already
conferred these powers on the high courts.
The institutions of first and second type are
subject to the regulatory power of the state with • The right to move the Supreme Court shall
regard to syllabus prescription, academic not be suspended except as otherwise
standards, discipline, sanitation, employment of provided for by the Constitution.
teaching staff and so on.

The institutions of third type are free to Supreme Court has been constituted as the
administer their affairs but subject to operation defender and guarantor of the fundamental
of general laws like contract law, labour law, rights of the citizens.
industrial law, tax law, economic regulations,
and so on.

Right to Constitutional Remedies

Article 32 confers the right to remedies for the

enforcement of the fundamental rights of an
aggrieved citizen.

The right to get the Fundamental Rights • The purpose of Article 32 is to provide a
protected is in itself a fundamental right. guaranteed, effective, expeditious,
inexpensive and summary remedy for the
protection of the fundamental rights.
• Only the Fundamental Rights guaranteed by
the Constitution can be enforced under
Article 32 and not any other right like non-
fundamental constitutional rights, statutory
The Supreme Court has ruled that Article 32 is a rights, customary rights and so on.
basic feature of the Constitution. • The violation of a fundamental right is the
sine qua non for the exercise of the right
conferred by Article 32.
• The Supreme Court, under Article 32, cannot
determine a question that does not involve
It contains the following four provisions: Fundamental Rights. Article 32 cannot be
invoked simply to determine the
• The right to move the Supreme Court by constitutionality of an executive order or a
appropriate proceedings for the legislation unless it directly infringes any of
the fundamental rights.
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In case of the enforcement of Fundamental • The Supreme Court can issue writs only for
Rights, the jurisdiction of the Supreme Court is the enforcement of fundamental rights
original but not exclusive. whereas a high court can issue writs not only
• It is concurrent with the jurisdiction of the for the enforcement of Fundamental Rights
high court under Article 226. It vests original but also for any other purpose.
powers in the high court to issue directions,
orders and writs of all kinds for the Thus, the writ jurisdiction of the Supreme
enforcement of the Fundamental Rights. It Court, in this respect, is narrower than that of
means when the Fundamental Rights of a high court.
citizen are violated, the aggrieved party has
the option of moving either the high court or • The Supreme Court can issue writs against a
the Supreme Court directly. person or government throughout the
territory of India whereas a high court can
Since the right guaranteed by Article 32 is in issue writs against a person residing or
itself a fundamental right, the availability of against a government or authority located
alternate remedy is no bar to relief under Article within its territorial jurisdiction only or
32. outside its territorial jurisdiction only if the
However, the Supreme Court has ruled that cause of action arises within its territorial
where relief through high court is available jurisdiction.
under Article 226, the aggrieved party should
first move the high court. Thus, the territorial jurisdiction of the
Supreme Court for the purpose of issuing
writs is wider than that of a high court.

Writs—Types and Scope • A remedy under Article 32 is in itself a

Fundamental Right and hence, the Supreme
• The Supreme Court and the high courts can Court may not refuse to exercise its writ
issue the writs of habeas corpus, mandamus, jurisdiction. On the other hand, a remedy
prohibition, certiorari and quo-warranto. under Article 226 is discretionary and hence,
a high court may refuse to exercise its writ
• Further, the Parliament (under Article 32) jurisdiction.
can empower any other court to issue these
writs. The Supreme Court is thus constituted as a
defender and guarantor of the fundamental
• Before 1950, only the High Courts of rights.
Calcutta, Bombay and Madras had the power
to issue the writs. Article 226 now Habeas Corpus
empowers all the high courts to issue the
writs. • It is a Latin term which literally means ‘to
have the body of’.
These writs are borrowed from English law where • It is an order issued by the court to a person
they are known as ‘prerogative writs’. who has detained another person, to
produce the body of the latter before it.
• The court then examines the cause and
legality of detention. It would set the
detained person free, if the detention is
found to be illegal.

The writ of habeas corpus can be issued against

both public authorities as well as private
individuals.
The writ jurisdiction of the Supreme Court
differs from that of a high court in three The writ is not issued where,
respects: • detention is lawful
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• the proceeding is for contempt of a • It is issued on the grounds of excess of

legislature or a court, jurisdiction or lack of jurisdiction or error
• detention is by a competent court, and of law.
• detention is outside the jurisdiction of the
court. Unlike prohibition, which is only preventive,
certiorari is both preventive as well as curative.
Mandamus
• Previously, the writ of certiorari could be
• It literally means ‘we command’. issued only against judicial and quasi-
• It is a command issued by the court to a judicial authorities and not against
public official asking him to perform his administrative authorities.
official duties that he has failed or refused to • However, in 1991, the Supreme Court ruled
perform. that the certiorari can be issued even against
• It can also be issued against any public body, administrative authorities affecting rights of
a corporation, an inferior court, a tribunal or individuals.
government for the same purpose.
Like prohibition, certiorari is also not available
The writ of mandamus cannot be issued against legislative bodies and private individuals
or bodies.
• against a private individual or body;
• to enforce departmental instruction that Quo-Warranto
does not possess statutory force;
• when the duty is discretionary and not • In the literal sense, it means ‘by what
mandatory; authority or warrant’.
• to enforce a contractual obligation; • It is issued by the court to enquire into the
• against the president of India or the state legality of claim of a person to a public office.
governors; and Hence, it prevents illegal usurpation of
• against the chief justice of a high court acting public office by a person.
in judicial capacity. • The writ can be issued only in case of a
substantive public office of a permanent
Prohibition character created by a statute or by the
Constitution.
• Literally, it means ‘to forbid’. • It cannot be issued in cases of ministerial
• It is issued by a higher court to a lower court office or private office.
or tribunal to prevent the latter from
exceeding its jurisdiction or usurping a Unlike the other four writs, this can be sought by
jurisdiction that it does not possess. any interested person and not necessarily by the
• The writ of prohibition can be issued only aggrieved person.
against judicial and quasi-judicial
authorities. Armed Forces and Fundamental
• It is not available against administrative Rights
authorities, legislative bodies, and private
individuals or bodies. • Article 33 empowers the Parliament to
restrict or abrogate the fundamental rights
Certiorari of the members of armed forces, para-
military forces, police forces, intelligence
• It means ‘to be certified’ or ‘to be informed’. agencies.
• It is issued by a higher court to a lower court • The objective of this provision is to ensure
or tribunal either to transfer a case pending the proper discharge of their duties and the
with the latter to itself or to quash the order maintenance of discipline among them.
of the latter in a case. • The power to make laws under Article 33 is
conferred only on Parliament and not on
state legislatures.
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• Any such law made by Parliament cannot be authorities according to their own rules and
challenged in any court on the ground of regulations framed outside the ordinary law.
contravention of any of the fundamental • It thus imply the suspension of ordinary law
rights. and the government by military tribunals.
• Accordingly, the Parliament has enacted the • There is also no specific or express provision
Army Act (1950), the Navy Act (1950), the in the Constitution that authorises the
Air Force Act (1950), the Police Forces executive to declare martial law.
(Restriction of Rights) Act, 1966, the Border • It is implicit in Article 34 under which
Security Force Act and so on. martial law can be declared in any area
• These impose restrictions on their freedom within the territory of India.
of speech, right to form associations, right to • The martial law is imposed under the
be members of trade unions or political extraordinary circumstances like war,
associations, right to communicate with the invasion, insurrection, rebellion, riot or any
press, right to attend public meetings or violent resistance to law.
demonstrations, etc. • During the operation of martial law, the
• The expression ‘members of the armed military authorities are vested with
forces’ also covers such employees of the abnormal powers to take all necessary steps.
armed forces as barbers, carpenters, • They impose restrictions and regulations on
mechanics, cooks, chowkidars, bootmakers, the rights of the civilians, can punish the
tailors who are non-combatants. civilians and even condemn them to death.
• A parliamentary law enacted under Article • The Supreme Court held that the declaration
33 can also exclude the court martials of martial law does not ipso facto result in
(tribunals established under the military the suspension of the writ of habeas corpus.
law) from the writ jurisdiction of the • The declaration of a martial law under
Supreme Court and the high courts, so far as Article 34 is different from the declaration of
the enforcement of Fundamental Rights is a national emergency under Article 352.
concerned.
Martial Law National
Martial Law and Fundamental Rights Emergency
1. It affects only It affects not only
• Article 34 provides for the restrictions on Fundamental Fundamental
fundamental rights while martial law is in Rights. Rights but also
force in any area within the territory of Centre-state
India. relations,
• It empowers the Parliament to indemnify distribution of
any government servant or any other person revenues and
for any act done by him in connection with legislative powers
the maintenance or restoration of order in between centre and
any area where martial law was in force. states and may
• The Parliament can also validate any extend the tenure
sentence passed, punishment inflicted, of the Parliament.
forfeiture ordered or other act done under 2. It suspends the It continues the
martial law in such area. government and government and
• The Act of Indemnity made by the ordinary law ordinary law
Parliament cannot be challenged in any courts. courts.
court on the ground of contravention of any 3. It is imposed to It can be imposed
of the fundamental rights. restore the only on three
• The concept of martial law has been breakdown of law grounds–war,
borrowed in India from the English common and order due to external aggression
law. any reason. or armed rebellion.
• It refers to a situation where civil 4. It is imposed in It is imposed either
administration is run by the military some specific area in the whole
of the country. country or in any
part of it.
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5. It has no specific It has specific and Further, the Parliament shall, after the
provision in the detailed provision commencement of the Constitution, make laws
Constitution. It is in the Constitution. for prescribing punishment for the above acts,
implicit. It is explicit. thus making it obligatory on the part of the
Parliament to enact such laws.
Effecting certain Fundamental Rights
• Any law in force at the commencement of the
Article 35 lays down that the power to make Constitution with respect to any of the
matters specified above is to continue in
laws, to give effect to certain specified
force until altered or repealed or amended
fundamental rights shall vest only in the
by the Parliament.
Parliament and not in the state legislatures.

This provision ensures that there is uniformity Present position of Right to Property
throughout India with regard to the nature of
those fundamental rights and punishment for Originally, the right to property was one of the
their infringement. seven fundamental rights under Part III of the
Constitution.
Article 35 contains the following provisions:

• The Parliament shall have (and the

legislature of a state shall not have) power to • Article 19(1)(f) guaranteed to every citizen
make laws with respect to the following the right to acquire, hold and dispose of
matters: property.
• Article 31, on the other hand, guaranteed to
o Prescribing residence as a condition for every person, whether citizen or non-citizen,
certain employments or appointments in a right against deprivation of his property.
state or union territory or local authority or
other authority. It provided that no person shall be deprived of
his property except by authority of law.
o Empowering courts other than the Supreme
Court and the high courts to issue directions, It empowered the State to acquire or requisition
orders and writs of all kinds for the the property of a person on two conditions:
enforcement of fundamental rights. • it should be for public purpose, and
• it should provide for payment of
o Restricting or abrogating the application of compensation (amount) to the owner.
Fundamental Rights to members of armed
forces, police forces, etc. The 44th Amendment Act of 1978 abolished the
right to property as a Fundamental Right by
o Indemnifying any government servant or repealing Article 19(1)(f) and Article 31
any other person for any act done during the from Part III.
operation of martial law in any area. Instead, the Act inserted a new Article 300A in
Part XII under the heading ‘Right to Property’.
• Parliament shall have (and the legislature of
a state shall not have) powers to make laws It provides that no person shall be deprived of
for prescribing punishment for those acts his property except by authority of law.
that are declared to be offences under the
fundamental rights. These include the Thus, the right to property still remains a legal
following: right or a constitutional right, though no longer
a fundamental right. It is not a part of the basic
o Untouchability structure of the Constitution.

o Traffic in human beings and forced labour. The right to property as a legal right (as distinct
from the Fundamental Rights) has the following
implications:
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security, right to work, right to employment,

• It can be regulated i.e., curtailed, abridged or right to rest and leisure and so on.
modified without constitutional amendment • These rights are made available to the
by an ordinary law of the Parliament. citizens of advanced democratic countries.
• It protects private property against Also, the socialistic constitutions of
executive action but not against legislative erstwhile USSR or China provided for such
action. rights.
• In case of violation, the aggrieved person
cannot directly move the Supreme Court No Clarity
under Article 32 (right to constitutional • The various phrases and words used in the
remedies including writs) for its chapter like ‘public order’, ‘minorities’,
enforcement. He can move the High Court ‘reasonable restriction’, ‘public interest’ and
under Article 226. so on are not clearly defined.
• No guaranteed right to compensation in case • The language used to describe them is very
of acquisition or requisition of the private complicated and beyond the comprehension
property by the state. of the common man.
• It is alleged that the Constitution was made
Though the Fundamental Right to Property by the lawyers for the lawyers. Sir Ivor
under Part III has been abolished, the Part III Jennings called the Constitution of India a
still carries two provisions which provide for ‘paradise for lawyers’.
the guaranteed right to compensation in case of
acquisition or requisition of the private No Permanency
property by the state. • They are not sacrosanct or immutable as the
Parliament can curtail or abolish them, as for
These two cases where compensation has to be example, the abolition of the fundamental
paid are: right to property in 1978.
• Hence, they can become a play tool in the
• When the State acquires the property of a hands of politicians having majority support
minority educational institution (Article in the Parliament.
30); and • The judicially innovated ‘doctrine of basic
• When the State acquires the land held by a structure’ is the only limitation on the
person under his personal cultivation and authority of Parliament to curtail or abolish
the land is within the statutory ceiling limits the fundamental right.
(Article 31 A).
Suspension During Emergency
• The suspension of their enforcement during
Criticism of Fundamental Rights the operation of National Emergency (except
Articles 20 and 21) is another blot on the
Excessive Limitations efficacy of these rights.
• This provision cuts at the roots of
• They are subjected to innumerable
democratic system in the country by placing
exceptions, restrictions, qualifications and
the rights of the millions of innocent people
explanations.
in continuous jeopardy.
• Hence, the critics remarked that the
• According to the critics, the Fundamental
Constitution grants Fundamental Rights
Rights should be enjoyable in all
with one hand and takes them away with the
situations—Emergency or no Emergency.
other.
Expensive Remedy
No Social and Economic Rights
• The judiciary has been made responsible for
The list is not comprehensive as it mainly defending and protecting these rights
consists of political rights. against the interference of the legislatures
and executives.
• It makes no provision for important social • However, the judicial process is too
and economic rights like right to social expensive and hinders the common man
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from getting his rights enforced through the the spirit and substance of the chapter on
courts. fundamental rights.
• Hence, the critics say that the rights benefit • It confers arbitrary powers on the State and
mainly the rich section of the Indian Society. negates individual liberty.
• No democratic country in the world has
made preventive detention as an integral
Preventive Detention part of their Constitutions as has been made
• The critics assert that the provision for in India.
preventive detention (Article 22) takes away
********

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Chapter 10 – Directive Principles of State Policy

The Directive Principles of State Policy are high ideals of justice, liberty, equality and
enumerated in Part IV of the Constitution from fraternity as outlined in the Preamble to the
Articles 36 to 51. Constitution. They embody the concept of a
‘welfare state’ and not that of a ‘police state’,
In this Part, unless the context otherwise
which existed during the colonial era.
requires, “the State” has the same meaning as in
• The Directive Principles are non-justiciable
Part III.
in nature, that is, they are not legally
The provisions contained in this Part shall not enforceable by the courts for their violation.
be enforceable by any court, but the principles Therefore, the government (Central, state
therein laid down are nevertheless fundamental and local) cannot be compelled to
in the governance of the country and it shall be implement them.
the duty of the State to apply these principles in • The Directive Principles, though non-
making laws. justiciable in nature, help the courts in
examining and determining the
The framers of the Constitution borrowed this
constitutional validity of a law. The Supreme
idea from the Irish Constitution.
Court has ruled many a times that in
The Directive Principles along with the determining the constitutionality of any law,
Fundamental Rights contain the philosophy of if a court finds that the law in question seeks
the Constitution and is the soul of the to give effect to a Directive Principle, it may
Constitution. consider such law to be ‘reasonable’ in
relation to Article 14 (equality before law) or
Features of the Directive Principles Article 19 (six freedoms) and thus save such
• The phrase ‘Directive Principles of State law from unconstitutionality.
Policy’ denotes the ideals that the State
should keep in mind while formulating Classification of the Directive
policies and enacting laws. These are the Principles
constitutional instructions or The Constitution does not contain any
recommendations to the State in legislative, classification of Directive Principles.
executive and administrative matters.
However, on the basis of their content and
• The Directive Principles resemble the
direction, they can be classified into three broad
‘Instrument of Instructions’ enumerated in
categories, viz, socialistic, Gandhian and
the Government of India Act of 1935. In the
liberal–intellectual.
words of Dr B R Ambedkar, ‘the Directive
Principles are like the instrument of Socialistic Principles
instructions, which were issued to the
Governor-General and to the Governors of • These principles reflect the ideology of
the colonies of India by the British socialism.
Government under the Government of India • They lay down the framework of a
Act of 1935. What is called Directive democratic socialist state, aim at providing
Principles is merely another name for the social and economic justice, and set the path
instrument of instructions. The only towards welfare state.
difference is that they are instructions to the They direct the state:
legislature and the executive’.
• The Directive Principles constitute a very • To promote the welfare of the people by
comprehensive economic, social and securing a social order permeated by
political programme for a modern justice—social, economic and political—and
democratic State. They aim at realising the
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to minimise inequalities in income, status, Gandhian Principles

facilities and opportunities.
• These principles are based on Gandhian
ideology.
• They represent the programme of
• To secure
reconstruction enunciated by Gandhi during
a) the right to adequate means of livelihood for
the national movement.
all citizens;
• In order to fulfil the dreams of Gandhi, some
b) the equitable distribution of material
resources of the community for the common of his ideas were included as Directive
Principles.
good;
c) prevention of concentration of wealth and They require the State:
means of production;
d) equal pay for equal work for men and • To organise village panchayats and endow
women; them with necessary powers and authority
e) preservation of the health and strength of to enable them to function as units of self-
workers and children against forcible abuse; government.
and • To promote cottage industries on an
f) opportunities for healthy development of individual or co-operation basis in rural
children areas.
• To promote voluntary formation,
autonomous functioning, democratic control
• To promote equal justice and to provide free and professional management of co-
legal aid to the poor. operative societies.

• To promote the educational and economic

interests of SCs, STs, and other weaker
• To secure the right to work, to education and sections of the society and to protect them
to public assistance in cases of from social injustice and exploitation.
unemployment, old age, sickness and
disablement. • To prohibit the consumption of intoxicating
drinks and drugs which are injurious to
• To make provision for just and humane health.
conditions of work and maternity relief
• To prohibit the slaughter of cows, calves and
• To secure a living wage, a decent standard of other milch and draught cattle and to
life and social and cultural opportunities for improve their breeds.
all workers. Liberal–Intellectual Principles
The principles included in this category
represent the ideology of liberalism.
They direct the state:
• To take steps to secure the participation of
workers in the management of industries. • To secure for all citizens a uniform civil code
throughout the country.
• To raise the level of nutrition and the • To provide early childhood care and
standard of living of people and to improve education for all children until they
public health. complete the age of six years.

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• To organise agriculture and animal all children until they complete the age of six
husbandry on modern and scientific lines. years.
• The 97th Amendment Act of 2011 added a
• To protect and improve the environment
new Directive Principle relating to co-
and to safeguard forests and wildlife.
operative societies. It requires the state to
promote voluntary formation, autonomous
functioning, democratic control and
professional management of co-operative
• To protect monuments, places and objects of
societies.
artistic or historic interest which are
declared to be of national importance. Sanction behind Directive Principles
Sir B N Rau, the Constitutional Advisor to the
• To separate the judiciary from the executive Constituent Assembly, recommended that the
in the public services of the State. rights of an individual should be divided into
two categories—justiciable and non-justiciable,
• To promote international peace and security which was accepted by the Drafting Committee.
and maintain just and honourable relations
Consequently, the Fundamental Rights, which
between nations; to foster respect for
are justiciable in nature, are incorporated in
international law and treaty obligations, and
Part III and the Directive Principles, which are
to encourage settlement of international
non-justiciable in nature, are incorporated in
disputes by arbitration.
Part IV of the Constitution.
New Directive Principles Though the Directive Principles are non-
The 42nd Amendment Act of 1976 added four
justiciable, the Constitution makes it clear that
new Directive Principles to the original list.
‘these principles are fundamental in the
They require the State: governance of the country and it shall be the
duty of the state to apply these principles in
• To secure opportunities for healthy making laws.’
development of children.
• To promote equal justice and to provide free Thus, they impose a moral obligation on the
legal aid to the poor. state authorities for their application, but the
• To take steps to secure the participation of real force behind them is political, that is, public
workers in the management of industries. opinion.
As observed by Alladi Krishnaswamy Ayyar, ‘no
• To protect and improve the environment ministry responsible to the people can afford
and to safeguard forests and wildlife. light-heartedly to ignore the provisions in Part
IV of the Constitution’.
• The 44th Amendment Act of 1978 added one
more Directive Principle, which requires the Similarly, Dr B R Ambedkar said in the
State to minimise inequalities in income, Constituent Assembly that ‘a government which
status, facilities and opportunities. rests on popular vote can hardly ignore the
Directive Principles while shaping its policy.
• The 86th Amendment Act of 2002 changed If any government ignores them, it will certainly
the subject-matter of Article 45 and made have to answer for that before the electorate at
elementary education a fundamental right the election time.’
under Article 21A.
Conflict between Fundamental Rights
The amended directive requires the State to
and Directive Principles
provide early childhood care and education for
The justiciability of Fundamental Rights and
non-justiciability of Directive Principles on the
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one hand and the moral obligation of State to • No law containing a declaration for giving
implement Directive Principles on the other effect to such policy shall be questioned in
hand have led to a conflict between the two any court on the ground that it does not give
since the commencement of the Constitution. effect to such a policy.
In the Champakam Dorairajan case (1951), the In the Kesavananda Bharati case (1973), the
Supreme Court ruled that in case of any conflict Supreme Court declared the above second
between the Fundamental Rights and the provision of Article 31C as unconstitutional and
Directive Principles, the former would prevail. invalid on the ground that judicial review is a
basic feature of the Constitution and hence,
It declared that the Directive Principles have to
cannot be taken away.
conform to and run as subsidiary to the
Fundamental Rights. However, the above first provision of Article
31C was held to be constitutional and valid.
But, it also held that the Fundamental Rights
could be amended by the Parliament by Later, the 42nd Amendment Act (1976) extended
enacting constitutional amendment acts. the scope of the above first provision of Article
31C by including within its protection any law to
As a result, the Parliament made the First
implement any of the Directive Principles and
Amendment Act (1951), the Fourth Amendment
not merely those specified in Article 39 (b) and
Act (1955) and the Seventeenth Amendment Act
(c).
(1964) to implement some of the Directives.
In other words, the 42nd Amendment Act
In the Golaknath case (1967), the Supreme
accorded the position of legal primacy and
Court ruled that the Parliament cannot take
supremacy to the Directive Principles over the
away or abridge any of the Fundamental Rights,
Fundamental Rights conferred by Articles 14, 19
which are ‘sacrosanct’ in nature.
and 31.
In other words, the Court held that the
However, this extension was declared as
Fundamental Rights cannot be amended for the
unconstitutional and invalid by the Supreme
implementation of the Directive Principles.
Court in the Minerva Mills case (1980).
The Parliament reacted to the Supreme Court’s
It means that the Directive Principles were once
judgement in the Golaknath Case (1967) by
again made subordinate to the Fundamental
enacting the 24th Amendment Act (1971) and
Rights.
the 25th Amendment Act (1971).
But the Fundamental Rights conferred by
The 24th Amendment Act declared that the
Article 14 and Article 19 were accepted as
Parliament has the power to abridge or take
subordinate to the Directive Principles specified
away any of the Fundamental Rights by enacting
in Article 39 (b) and (c).
Constitutional Amendment Acts.
In the Minerva Mills case (1980), the Supreme
The 25th Amendment Act inserted a new Article
Court also held that ‘the Indian Constitution is
31C which contained the following two
founded on the bedrock of the balance between
provisions:
the Fundamental Rights and the Directive
• No law which seeks to implement the Principles.
socialistic Directive Principles specified in
They together constitute the core of
Article 39 (b) and (c) shall be void on the
commitment to social revolution. They are like
ground of contravention of the Fundamental
two wheels of a chariot, one no less than the
Rights conferred by Article 14 (equality
other. To give absolute primacy to one over the
before law and equal protection of laws),
other is to disturb the harmony of the
Article 19 (protection of six rights in respect
Constitution.
of speech, assembly, movement, etc) or
Article 31 (right to property).
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This harmony and balance between the two is the courts in case of courts for their
an essential feature of the basic structure of the their violation. violation.
Constitution. They aim at They aim at
establishing political establishing social
The goals set out by the Directive Principles democracy in the and economic
have to be achieved without the abrogation of country. democracy in the
the means provided by the Fundamental Rights’. country.
They promote the They promote the
Therefore, the present position is that the
welfare of the welfare of the
Fundamental Rights enjoy supremacy over the individual. Hence, community. Hence,
Directive Principles. they are personal and they are societarian
Yet, this does not mean that the Directive individualistic. and socialistic.
Principles cannot be implemented. They do not require They require
any legislation for legislation for their
The Parliament can amend the Fundamental their implementation.
Rights for implementing the Directive implementation. They are not
Principles, so long as the amendment does not They are automatically
damage or destroy the basic structure of the automatically enforced.
Constitution. enforced.
The courts are bound The courts cannot
Distinction Between Fundamental to declare a law declare a law
Rights and Directive Principles violative of any of the violative of any of the
Fundamental Rights Directive Principles
Fundamental Rights Directive Principles
as unconstitutional as unconstitutional
These are negative as These are positive as
and invalid. and invalid. However,
they prohibit the they require the State
they can uphold the
State from doing to do certain things.
validity of a law on
certain things.
the ground that it was
These are justiciable, These are non-
enacted to give effect
that is, they are justiciable, that is,
to a directive.
legally enforceable by they are not legally
enforceable by the
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Chapter 11 – Fundamental Duties

Though the rights and duties of the citizens are The Congress Government at Centre accepted
correlative and inseparable, the original these recommendations and enacted the 42nd
constitution contained only the fundamental Constitutional Amendment Act in 1976.
rights and not the fundamental duties.
This amendment added a new part, namely, Part
In 1976, the fundamental duties of citizens were IVA to the Constitution.
added in the Constitution. In 2002, one more
This new part consists of only one Article, that
Fundamental Duty was added.
is, Article 51A which for the first time specified
The Fundamental Duties in the Indian a code of ten fundamental duties of the citizens.
Constitution are inspired by the Constitution of
erstwhile USSR. List of Fundamental Duties
According to Article 51 A, it shall be the duty of
None of the Constitutions of major democratic every citizen of India:
countries like USA, Canada, France, Germany,
Australia and so on specifically contain a list of (a) to abide by the Constitution and respect its
duties of citizens. ideals and institutions, the National Flag and
the National Anthem;
Japanese Constitution is, perhaps, the only
democratic Constitution in world which (b) to cherish and follow the noble ideals that
contains a list of duties of citizens. inspired the national struggle for freedom;
The socialist countries, on the contrary, gave
equal importance to the fundamental rights and (c) to uphold and protect the sovereignty, unity
duties of their citizens. and integrity of India;

Hence, the Constitution of erstwhile USSR (d) to defend the country and render national
declared that the citizen’s exercise of their service when called upon to do so;
rights and freedoms was inseparable from the
performance of their duties and obligations. (e) to promote harmony and the spirit of
common brotherhood amongst all the
Swaran Singh Committee
people of India transcending religious,
recommendations linguistic and regional or sectional
In 1976, the Congress Party set up the Sardar diversities and to renounce practices
Swaran Singh Committee to make derogatory to the dignity of women
recommendations about fundamental duties,
the need and necessity of which was felt during (f) to value and preserve the rich heritage of the
the operation of the internal emergency (1975– country’s composite culture;
1977).
The committee recommended the inclusion of a (g) to protect and improve the natural
separate chapter on fundamental duties in the environment including forests, lakes, rivers
Constitution. and wildlife and to have compassion for
living creatures;
It stressed that the citizens should become
conscious that in addition to the enjoyment of (h) to develop scientific temper, humanism and
rights, they also have certain duties to perform the spirit of inquiry and reform;
as well.
(i) to safeguard public property and to abjure
violence;

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(j) to strive towards excellence in all spheres of ideals’, ‘composite culture’, ‘scientific
individual and collective activity so that the temper’ and so on.
nation constantly rises to higher levels of • They have been described by the critics as a
endeavour and achievement; and code of moral precepts due to their non-
justiciable character. Interestingly, the
(k) to provide opportunities for education to his Swaran Singh Committee had suggested for
child or ward between the age of six and penalty or punishment for the non-
fourteen years. performance of Fundamental Duties.
• Their inclusion in the Constitution was
Features of the Fundamental Duties described by the critics as superfluous. This
Following points can be noted with regard to the is because the duties included in the
characteristics of the Fundamental Duties:
Constitution as fundamental would be
• Some of them are moral duties while others performed by the people even though they
are civic duties. For instance, cherishing were not incorporated in the Constitution.
noble ideals of freedom struggle is a moral • The critics said that the inclusion of
precept and respecting the Constitution, fundamental duties as an appendage to Part
National Flag and National Anthem is a civic IV of the Constitution has reduced their
duty. value and significance. They should have
• They refer to such values which have been a been added after Part III so as to keep them
part of the Indian tradition, mythology, on par with Fundamental Rights.
religions and practices. In other words, they
Significance of Fundamental Duties
essentially contain just a codification of
In spite of criticisms and opposition, the
tasks integral to the Indian way of life.
fundamental duties are considered significant
• Unlike some of the Fundamental Rights
from the following viewpoints:
which extend to all persons whether citizens
or foreigners, the Fundamental Duties are • They serve as a reminder to the citizens that
confined to citizens only and do not extend while enjoying their rights, they should also
to foreigners. be conscious of duties they owe to their
• Like the Directive Principles, the country, their society and to their fellow
fundamental duties are also nonjusticiable. citizens.
The Constitution does not provide for their • They serve as a warning against the anti-
direct enforcement by the courts. Moreover, national and antisocial activities like
there is not legal sanction against their burning the national flag, destroying public
violation. However, the Parliament is free to property and so on.
enforce them by suitable legislation. • They serve as a source of inspiration for the
citizens and promote a sense of discipline
Criticism of Fundamental Duties and commitment among them. They create a
The Fundamental Duties mentioned in Part IVA feeling that the citizens are not mere
of the Constitution have been criticised on the spectators but active participants in the
following grounds:
realisation of national goals.
• The list of duties is not exhaustive as it does • They help the courts in examining and
not cover other important duties like casting determining the constitutional validity of a
vote, paying taxes, family planning and so on. law. In 1992, the Supreme Court ruled that
In fact, duty to pay taxes was recommended in determining the constitutionality of any
by the Swaran Singh Committee. law, if a court finds that the law in question
• Some of the duties are vague, ambiguous and seeks to give effect to a fundamental duty, it
difficult to be understood by the common may consider such law to be ‘reasonable’ in
man. For example, different interpretations relation to Article 14 (equality before law) or
can be given to the phrases like ‘noble Article 19 (six freedoms) and thus save such
law from unconstitutionality.
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Verma Committee observations • The Representation of People Act (1951)

The Verma Committee on Fundamental Duties provides for the disqualification of members
of the Citizens (1999) identified the existence of of the Parliament or a state legislature for
legal provisions for the implementation of some indulging in corrupt practice, that is,
of the Fundamental Duties. soliciting votes on the ground of religion or
promoting enmity between different
• The Prevention of Insults to National sections of people on grounds of caste, race,
Honour Act (1971) prevents disrespect to language, religion and so on.
the Constitution of India, the National Flag • The Wildlife (Protection) Act of 1972
and the National Anthem. prohibits trade in rare and endangered
• The Protection of Civil Rights Act (1955) species.
provides for punishments for offences • The Forest (Conservation) Act of 1980
related to caste and religion. checks indiscriminate deforestation and
• The Unlawful Activities (Prevention) Act of diversion of forest land for non-forest
1967 provides for the declaration of a purposes.
communal organisation as an unlawful
association.
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Chapter 12 – Parliamentary System

Modern democratic governments are classified Prime Minister is the real executive (de facto
into parliamentary and presidential on the basis executive).
of nature of relations between the executive and
Thus, the President is head of the State, while
the legislative organs of the government.
the Prime Minister is head of the government.
The parliamentary system of government is the
Article 74 provides for a council of ministers
one in which the executive is responsible to the
headed by the Prime Minister to aid and advise
legislature for its policies and acts.
the President in the exercise of his functions.
The presidential system of government, on the The advice so tendered is binding on the
other hand, is one in which the executive is not President.
responsible to the legislature for its policies and
• Majority Party Rule: The political party
acts, and is constitutionally independent of the
which secures majority seats in the Lok
legislature in respect of its term of office.
Sabha forms the government. The leader of
The Constitution of India provides for a that party is appointed as the Prime Minister
parliamentary form of government, both at the by the President; other ministers are
Centre and in the states. appointed by the President on the advice of
the prime minister.
Articles 74 and 75 deal with the parliamentary
system at the Centre and Articles 163 and 164 in However, when no single party gets the
the states. majority, a coalition of parties may be invited by
the President to form the government.
The parliamentary government is also known as
cabinet government or responsible government • Collective Responsibility: This is the
or Westminster model of government and is bedrock principle of parliamentary
prevalent in Britain, Japan, Canada, India among government. The ministers are collectively
others. responsible to the Parliament in general and
to the Lok Sabha in particular (Article 75).
Cabinet: Since cabinet is the nucleus of this type
of government. They act as a team, and swim and sink together.
The principle of collective responsibility implies
Responsible: As executives are responsible to
that the Lok Sabha can remove the ministry (i.e.,
the legislature.
council of ministers headed by the prime
Westminster model: Westminster is the place minister) from office by passing a vote of no
where British parliament is located. From this, confidence.
this system of government originated.
• Political Homogeneity: Usually members
The presidential government, on the other hand, of the council of ministers belong to the
is also known as non-responsible or same political party, and hence they share
nonparliamentary or fixed executive system of the same political ideology. In case of
government and is prevalent in USA, Brazil, coalition government, the ministers are
Russia, Sri Lanka among others. bound by consensus.
• Double Membership: The ministers are
Features of Parliamentary
members of both the legislature and the
Government executive.
• Nominal and Real Executives: The
President is the nominal executive (de jure This means that a person cannot be a minister
executive or titular executive) while the without being a member of the Parliament. The
Constitution stipulates that a minister who is

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not a member of the Parliament for a period of Cabinet’. It is only an advisory body and
six consecutive months ceases to be a minister. consists of non-elected departmental
secretaries. They are selected and appointed
• Leadership of the Prime Minister: The
by him, are responsible only to him, and can
Prime Minister plays the leadership role in
be removed by him any time.
this system of government. He is the leader
• The President and his secretaries are not
of council of ministers, leader of the
responsible to the Congress for their acts.
Parliament and leader of the party in power.
They neither possess membership in the
In these capacities, he plays a significant and Congress nor attend its sessions.
highly crucial role in the functioning of the • The President cannot dissolve the House of
government. Representatives—the lower house of the
Congress.
• Dissolution of the Lower House: The lower
• The doctrine of separation of powers is the
house of the Parliament (Lok Sabha) can be
basis of the American presidential system.
dissolved by the President on
The legislative, executive and judicial
recommendation of the Prime Minister.
powers of the government are separated
In other words, the prime minister can advise and vested in the three independent organs
the President to dissolve the Lok Sabha before of the government.
the expiry of its term and hold fresh elections.
Merits of the Parliamentary System
This means that the executive enjoys the right to • Harmony Between Legislature and
get the legislature dissolved in a parliamentary Executive: The greatest advantage of the
system. parliamentary system is that it ensures
harmonious relationship and cooperation
• Secrecy: The ministers operate on the
between the legislative and executive organs
principle of secrecy of procedure and cannot
of the government. The executive is a part of
divulge information about their
the legislature and both are interdependent
proceedings, policies and decisions.
at work. As a result, there is less scope for
They take the oath of secrecy before entering disputes and conflicts between the two
their office. The oath of secrecy to the ministers organs.
is administered by the President. • Responsible Government: By its very
nature, the parliamentary system
Features of Presidential Government establishes a responsible government. The
Unlike the Indian Constitution, the American ministers are responsible to the Parliament
Constitution provides for the presidential form
for all their acts of omission and
of government. The features of the American commission. The Parliament exercises
presidential system of government are as
control over the ministers through various
follows:
devices like question hour, discussions,
• The American President is both the head of adjournment motion, no confidence motion,
the State and the head of government. As the etc.
head of State, he occupies a ceremonial • Prevents Despotism: Under this system,
position. As the head of government, he the executive authority is vested in a group
leads the executive organ of government. of individuals (council of ministers) and not
• The President is elected by an electoral in a single person. This dispersal of authority
college for a fixed tenure of four years. He checks the dictatorial tendencies of the
cannot be removed by the Congress except executive. Moreover, the executive is
by impeachment for a grave responsible to the Parliament and can be
unconstitutional act. removed by a no-confidence motion.
• The President governs with the help of a • Ready Alternative Government: In case
cabinet or a smaller body called ‘Kitchen the ruling party loses its majority, the Head
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of the State can invite the opposition party to • Against Separation of Powers: In the
form the government. This means an parliamentary system, the legislature and
alternative government can be formed the executive are together and inseparable.
without fresh elections. Hence, Dr Jennings The cabinet acts as the leader of legislature
says, ‘the leader of the opposition is the as well as the executive. Hence, the whole
alternative prime minister’. system of government goes against the letter
• Wide Representation: In a parliamentary and spirit of the theory of separation of
system, the executive consists of a group of powers. In fact, there is a fusion of powers.
individuals (i.e., ministers who are • Government by Amateurs: The
representatives of the people). Hence, it is parliamentary system is not conducive to
possible to provide representation to all administrative efficiency as the ministers
sections and regions in the government. The are not experts in their fields. The Prime
prime minister while selecting his ministers Minister has a limited choice in the selection
can take this factor into consideration. of ministers; his choice is restricted to the
members of Parliament alone and does not
Demerits of the Parliamentary System extend to external talent.
• Unstable Government: The parliamentary
system does not provide a stable Reasons for adopting Parliamentary
government. There is no guarantee that a System
government can survive its tenure. The A plea was made in favour of US presidential
ministers depend on the mercy of the system of government in the Constituent
majority legislators for their continuity and Assembly. But the founding fathers preferred
survival in office. A no-confidence motion or the British parliamentary system due to the
political defection or evils of multiparty following reasons:
coalition can make the government unstable.
• Familiarity with the System: The
The Government headed by Morarji Desai, Constitution-makers were somewhat
Charan Singh, V P Singh, Chandra Sekhar, Deva familiar with the parliamentary system as it
Gowda and I K Gujral are some such examples. had been in operation in India during the
• No Continuity of Policies: The British rule.
parliamentary system is not conductive for K M Munshi argued that, ‘For the last thirty or
the formulation and implementation of long- forty years, some kind of responsibility has been
term policies. This is due to the uncertainty introduced in the governance of this country.
of the tenure of the government. A change in Our constitutional traditions have become
the ruling party is usually followed by Parliamentary. After this experience, why
changes in the policies of the government. should we go back and buy a novel experience.’
For example, the Janata Government headed by • Preference to More Responsibility: Dr B R
Morarji Desai in 1977 reversed a large number Ambedkar pointed out in the Constituent
of policies of the previous Congress Assembly that ‘a democratic executive must
Government. The same was repeated by the satisfy two conditions: stability and
Congress government after it came back to responsibility. Unfortunately, it has not been
power in 1980. possible so far to devise a system which can
• Dictatorship of the Cabinet: When the ensure both in equal degree.
ruling party enjoys absolute majority in the The American system gives more stability but
Parliament, the cabinet becomes autocratic less responsibility. The British system, on the
and exercises nearly unlimited powers. other hand, gives more responsibility but less
This phenomenon was witnessed during the era stability.
of Indira Gandhi and Rajiv Gandhi.

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The Draft Constitution in recommending the doing well and hence, there is no need to replace
parliamentary system of Executive has it by the presidential system.
preferred more responsibility to more stability.
Distinction between Indian and
• Need to Avoid Legislative—Executive British models
Conflicts: The framers of the Constitution The parliamentary system of government in
wanted to avoid the conflicts between the India is largely based on the British
legislature and the executive which are parliamentary system. However, it never
bound to occur in the presidential system became a replica of the British system and
prevalent in USA. differs in the following respects:
They thought that an infant democracy could • India has a republican system in place of
not afford to take the risk of a perpetual British monarchical system.
cleavage, feud or conflict or threatened conflict • The British system is based on the doctrine
between these two organs of the government. of the sovereignty of Parliament, while the
They wanted a form of government that would Parliament is not supreme in India and
be conductive to the manifold development of enjoys limited and restricted powers due to
the country. a written Constitution, federal system,
• Nature of Indian Society: India is one of the judicial review and fundamental rights.
most heterogeneous States and most • In Britain, the prime minister should be a
complex plural societies in the world. Hence, member of the Lower House (House of
the Constitution-makers adopted the Commons) of the Parliament. In India, the
parliamentary system as it offers greater prime minister may be a member of any of
scope for giving representation to various the two Houses of Parliament.
section, interests and regions in the • Usually, the members of Parliament alone
government. This promotes a national spirit are appointed as ministers in Britain. In
among the people and builds a united India. India, a person who is not a member of
Parliament can also be appointed as
Whether the parliamentary system should be minister, but for a maximum period of six
continued or should be replaced by the months.
presidential system has been a point of
• ‘Shadow cabinet’ is an unique institution of
discussion and debate in our country since the
the British cabinet system. It is formed by
1970s.
the opposition party to balance the ruling
This matter was considered in detail by the cabinet and to prepare its members for
Swaran Singh Committee appointed by the future ministerial office. There is no such
Congress government in 1975. The committee institution in India.
opined that the parliamentary system has been
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Chapter 13 – Federal System

Unitary government is one in which all the The US is the first and the oldest federation in
powers are vested in the national government the world. It was formed in 1787 following the
and the regional governments, if at all exist, American Revolution (1775–83). It comprises
derive their authority from the national 50 states (originally 13 states) and is taken as
government. the model of federation.
A federal government, on the other hand, is one The Canadian Federation, comprising 10
in which powers are divided between the provinces (originally 4 provinces) is also quite
national government and the regional old—formed in 1867.
governments by the Constitution itself and both
The Constitution of India provides for a federal
operate in their respective jurisdictions
system of government in the country.
independently.
The framers adopted the federal system due to
Britain, France, Japan, China, Italy, Belgium,
two main reasons —the large size of the country
Norway, Sweden, Spain and so on have the
and its socio-cultural diversity. They realised
unitary model of government while the US,
that the federal system not only ensures the
Switzerland, Australia, Canada, Russia, Brazil,
efficient governance of the country but also
Argentina and so on have the federal model of
reconciles national unity with regional
government.
autonomy.
In a federal model, the national government is
However, the term ‘federation’ has nowhere
known as the Federal government or the Central
been used in the Constitution.
government or the Union government and the
regional government is known as the state Instead, Article 1 of the Constitution describes
government or the provincial government. India as a ‘Union of States’.
The term ‘federation’ is derived from a Latin According to Dr B R Ambedkar, the phrase
word foedus which means ‘treaty’ or ‘Union of States’ has been preferred to
‘agreement’. Thus, a federation is a new state ‘Federation of States’ to indicate two things:
(political system) which is formed through a
i. the Indian federation is not the result of an
treaty or an agreement between the various
agreement among the states like the
units.
American federation; and
The units of a federation are known by various ii. the states have no right to secede from the
names like states (as in US) or cantons (as in federation.
Switzerland) or provinces (as in Canada) or
The Indian federal system is based on the
republics (as in Russia).
‘Canadian model’ and not on the ‘American
A federation can be formed in two ways, that is, model’.
by way of integration or by way of
The ‘Canadian model’ differs fundamentally
disintegration.
from the ‘American model’ in so far as it
In the first case, a number of militarily weak or establishes a very strong centre.
economically backward states (independent)
The Indian federation resembles the Canadian
come together to form a big and a strong union,
federation
as for example, the US.
i. in its formation (i.e., by way of
In the second case, a big unitary state is
disintegration);
converted into a federation by granting
autonomy to the provinces to promote regional
interest (for example, Canada).
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ii. in its preference to the term ‘Union’ (the Thus, the organs of the government (legislative,
Canadian federation is also called a ‘Union’); executive and judicial) at both the levels must
and operate within the jurisdiction prescribed by
iii. in its centralising tendency (i.e., vesting the Constitution.
more powers in the centre vis-a-vis the
• Rigid Constitution
states).
The division of powers established by the
Federal Features of the Constitution Constitution as well as the supremacy of the
• Dual Polity Constitution can be maintained only if the
The Constitution establishes a dual polity method of its amendment is rigid.
consisting the Union at the Centre and the states Hence, the Constitution is rigid to the extent that
at the periphery. those provisions which are concerned with the
Each is endowed with sovereign powers to be federal structure (i.e., Centre–state relations
exercised in the field assigned to them and judicial organisation) can be amended only
respectively by the Constitution. by the joint action of the Central and state
governments.
The Union government deals with the matters of
national importance like defence, foreign affairs, Such provisions require for their amendment a
currency, communication and so on. special majority4 of the Parliament and also an
approval of half of the state legislatures.
The state governments on the other hand, look
after the matters of regional and local • Independent Judiciary
importance like public order, agriculture,
The Constitution establishes an independent
health, local government and so on.
judiciary headed by the Supreme Court for two
• Division of Powers purposes:

The Constitution divided the powers between one, to protect the supremacy of the
the Centre and the states in terms of the Union Constitution by exercising the power of judicial
List, State List and Concurrent List in the review; and
Seventh Schedule. two, to settle the disputes between the Centre
The Union List consists of 98 subjects (originally and the states or between the states.
97), the State List 59 subjects (originally 66) and The Constitution contains various measures like
the Concurrent List 52 subjects (originally 47). security of tenure to judges, fixed service
Both the Centre and the states can make laws on conditions and so on to make the judiciary
the subjects of the concurrent list, but in case of independent of the government.
a conflict, the Central law prevails.
• Bicameralism
The residuary subjects (ie, which are not
The Constitution provides for a bicameral
mentioned in any of the three lists) are given to
legislature consisting of an Upper House (Rajya
the Centre.
Sabha) and a Lower House (Lok Sabha).
• Supremacy of the Constitution The Rajya Sabha represents the states of Indian
The Constitution is the supreme (or the highest) Federation, while the Lok Sabha represents the
law of the land. people of India as a whole.

The laws enacted by the Centre and the states The Rajya Sabha (even though a less powerful
must confirm to its provisions. Otherwise, they chamber) is required to maintain the federal
can be declared invalid by the Supreme Court or equilibrium by protecting the interests of the
the high courts through their power of judicial states against the undue interference of the
review. Centre.
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Unitary Features of the Constitution The process of constitutional amendment is less

Besides the federal features, the Indian rigid than what is found in other federations.
Constitution also possesses the following The bulk of the Constitution can be amended by
unitary or non-federal features: the unilateral action of the Parliament, either by
• Strong Centre simple majority or by special majority.

The division of powers is in favour of the Centre Further, the power to initiate an amendment to
and highly inequitable from the federal angle. the Constitution lies only with the Centre.

• The Union List contains more subjects than In US, the states can also propose an
the State List. amendment to the Constitution.
• More important subjects have been included • No Equality of State Representation
in the Union List.
• The Centre has overriding authority over the The states are given representation in the Rajya
Concurrent List. Sabha on the basis of population. Hence, the
• The residuary powers have also been left membership varies from 1 to 31.
with the Centre, while in the US, they are In US, on the other hand, the principle of
vested in the states. equality of representation of states in the Upper
Thus, the Constitution has made the Centre very House is fully recognised.
strong. Thus, the American Senate has 100 members,
• States Not Indestructible two from each state.

Unlike in other federations, the states in India This principle is regarded as a safeguard for
have no right to territorial integrity. smaller states.

The Parliament can by unilateral action change • Emergency Provisions

the area, boundaries or name of any state. The Constitution stipulates three types of
Moreover, it requires only a simple majority and emergencies—national, state and financial.
not a special majority.
During an emergency, the Central government
Hence, the Indian Federation is “an becomes all powerful and the states go into the
indestructible Union of destructible states”. The total control of the Centre.
American Federation, on the other hand, is
described as “an indestructible Union of It converts the federal structure into a unitary
indestructible states”. one without a formal amendment of the
Constitution.
• Single Constitution
This kind of transformation is not found in any
Usually, in a federation, the states have the right other federation.
to frame their own Constitution separate from
that of the Centre. • Single Citizenship

In India, on the contrary, no such power is given In spite of a dual polity, the Constitution of India,
to the states. The Constitution of India embodies like that of Canada, adopted the system of single
not only the Constitution of the Centre but also citizenship.
those of the states. There is only Indian Citizenship and no separate
Both the Centre and the states must operate state citizenship.
within this single-frame. All citizens irrespective of the state in which
• Flexibility of the Constitution they are born or reside enjoy the same rights all
over the country.

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The other federal states like US, Switzerland and The Parliament is empowered to legislate on
Australia have dual citizenship, that is, national any subject of the State List if Rajya Sabha
citizenship as well as state citizenship. passes a resolution to that effect in the national
interest.
• Integrated Judiciary
This means that the legislative competence of
The Indian Constitution has established an
the Parliament can be extended without
integrated judicial system with the Supreme
amending the Constitution. Notably, this can be
Court at the top and the state high courts below
done when there is no emergency of any kind.
it.
• Appointment of Governor
This single system of courts enforces both the
Central laws as well as the state laws. The governor, who is the head of the state, is
appointed by the President. He holds office
In US, on the other hand, there is a double
during the pleasure of the President.
system of courts whereby the federal laws are
enforced by the federal judiciary and the state He also acts as an agent of the Centre. Through
laws by the state judiciary. him, the Centre exercises control over the states.

• All-India Services The American Constitution, on the contrary,

provided for an elected head in the states.
In US, the Federal government and the state
governments have their separate public • Integrated Election Machinery
services.
The Election Commission conducts elections not
In India also, the Centre and the states have their only to the Central legislature but also to the
separate public services. state legislatures.
But, in addition, there are all-India services (IAS, But this body is constituted by the President and
IPS, and IFS) which are common to both the the states have no say in this matter. The
Centre and the states. position is same with regard to the removal of
its members as well.
The members of these services are recruited
and trained by the Centre which also possess On the other hand, US has separate machineries
ultimate control over them. for the conduct of elections at the federal and
state levels.
• Integrated Audit Machinery
• Veto Over State Bills
The Comptroller and Auditor-General of India
audits the accounts of not only the Central The governor is empowered to reserve certain
government but also those of the states. types of bills passed by the state legislature for
the consideration of the President.
But his appointment and removal is done by the
president without consulting the states. The President can withhold his assent to such
bills not only in the first instance but also in the
Hence, this office restricts the financial
second instance.
autonomy of the states.
Thus, the President enjoys absolute veto (and
The American Comptroller-General, on the
not suspensive veto) over state bills.
contrary, has no role with respect to the
accounts of the states. Critical evaluation of the Federal
• Parliament’s Authority Over State List System
From the above, it is clear that the Constitution
Even in the limited sphere of authority allotted of India has deviated from the traditional
to them, the states do not have exclusive control. federal systems like US, Switzerland and
Australia and incorporated a large number of
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unitary or non-federal features, tilting the federal with unique safeguards for enforcing
balance of power in favour of the Centre. national unity and growth”.
Thus, KC Wheare described the Constitution of Alexandrowicz stated that “India is a case sui
India as “quasi-federal”. generis (i.e., unique in character).
He remarked that “Indian Union is a unitary Granville Austin called the Indian federalism as
state with subsidiary federal features rather a “cooperative federalism”.
than a federal state with subsidiary unitary
He said that though the Constitution of India has
features.”
created a strong Central government, it has not
According to K Santhanam, the two factors have made the state governments weak and has not
been responsible for increasing the unitary bias reduced them to the level of administrative
(tendency of centralisation) of the Constitution. agencies for the execution of policies of the
Central government. He described the Indian
These are:
federation as “a new kind of federation to meet
i. the dominance of the Centre in the financial India’s peculiar needs”.
sphere and the dependence of the states
On the nature of Indian Constitution, Dr B R
upon the Central grants; and
Ambedkar made the following observation in
ii. the emergence of a powerful planning
the Constituent Assembly: “The Constitution is a
commission which controls the
Federal Constitution in as much as it establishes
developmental process in the states.
a dual polity.
He observed: “India has practically functioned
The Union is not a league of states, united in a
as a unitary state though the Union and the
loose relationship, nor are the states the
states have tried to function formally and legally
agencies of the Union, deriving powers from it.
as a federation.”
Both the Union and the states are created by the
Morris Jones termed it as a “bargaining
Constitution, both derive their respective
federalism”.
authority from the Constitution.”
Ivor Jennings has described it as a “federation
He further observed: “Yet the Constitution
with a strong centralising tendency”. He
avoids the tight mould of federalism and could
observed that “the Indian Constitution is mainly
be both unitary as well as federal according to
the requirements of time and circumstances.”

********

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Chapter 14 – Centre-State Relations

The Constitution of India, being federal in Territorial Extent of Central and State
structure, divides all powers (legislative, Legislation
executive and financial) between the Centre and The Constitution defines the territorial limits of
the states. the legislative powers vested in the Centre and
the states in the following way:
However, there is no division of judicial power
as the Constitution has established an • The Parliament can make laws for the whole
integrated judicial system to enforce both the or any part of the territory of India. The
Central laws as well as state laws. territory of India includes the states, the
union territories, and any other area for the
Though the Centre and the states are supreme
time being included in the territory of India.
in their respective fields, the maximum
harmony and coordination between them is
• A state legislature can make laws for the
essential for the effective operation of the
whole or any part of the state. The laws
federal system. Hence, the Constitution contains
made by a state legislature are not
elaborate provisions to regulate the various
applicable outside the state, except when
dimensions of the relations between the Centre
there is a sufficient nexus between the state
and the states.
and the object.
The Centre-state relations can be studied under
three heads: • The Parliament alone can make ‘extra-
territorial legislation’. Thus, the laws of the
• Legislative relations
Parliament are also applicable to the Indian
• Administrative relations
citizens and their property in any part of the
• Financial relations
world.
Legislative Relations However, the Constitution places certain
Articles 245 to 255 in Part XI of the Constitution restrictions on the plenary territorial
deal with the legislative relations between the jurisdiction of the Parliament. In other words,
Centre and the states. the laws of Parliament are not applicable in the
Like any other Federal Constitution, the Indian following areas:
Constitution also divides the legislative powers
between the Centre and the states with respect
to both the territory and the subjects of • The President can make regulations for the
legislation. peace, progress and good government of the
four Union Territories—the Andaman and
There are four aspects in the Centre–states Nicobar Islands, Lakshadweep, Dadra and
legislative relations, viz., Nagar Haveli and Daman and Diu. A
• Territorial extent of Central and state regulation so made has the same force and
legislation; effect as an act of Parliament. It may also
• Distribution of legislative subjects; repeal or amend any act of Parliament in
• Parliamentary legislation in the state field; relation to these union territories.
and
• Centre’s control over state legislation. • The governor is empowered to direct that an
act of Parliament does not apply to a
scheduled area in the state or apply with
specified modifications and exceptions.

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• The Governor of Assam may likewise direct (originally 47 subjects) like criminal law and
that an act of Parliament does not apply to a procedure, civil procedure, marriage and
tribal area (autonomous district) in the state divorce, population control and family
or apply with specified modifications and planning, electricity, labour welfare,
exceptions. The President enjoys the same economic and social planning, drugs,
power with respect to tribal areas newspapers, books and printing press, and
(autonomous districts) in Meghalaya, others.
Tripura and Mizoram.
The 42nd Amendment Act of 1976 transferred
five subjects to Concurrent List from State List,
Distribution of Legislative Subjects that is, (a) education, (b) forests, (c) weights and
The Constitution provides for a three-fold measures, (d) protection of wild animals and
distribution of legislative subjects between the birds, and (e) administration of justice;
Centre and the states, viz., List-I (the Union List), constitution and organisation of all courts
List-II (the State List) and List-III (the except the Supreme Court and the high courts.
Concurrent List) in the Seventh Schedule:
• The power to make laws with respect to
• The Parliament has exclusive powers to residuary subjects (i.e., the matters which
make laws with respect to any of the matters are not enumerated in any of the three lists)
enumerated in the Union List. This list has at is vested in the Parliament.
present 98 subjects (originally 97 subjects)
This residuary power of legislation includes the
like defence, banking, foreign affairs,
power to levy residuary taxes.
currency, atomic energy, insurance,
communication, inter-state trade and
commerce, census, audit and so on.
From the above scheme, it is clear that the
matters of national importance and the matters
which require uniformity of legislation
nationwide are included in the Union List.
The matters of regional and local importance
and the matters which permit diversity of
interest are specified in the State List.
• The state legislature has “in normal
circumstances” exclusive powers to make The matters on which uniformity of legislation
laws with respect to any of the matters throughout the country is desirable but not
enumerated in the State List. This has at essential are enumerated in the concurrent list.
present 59 subjects (originally 66 subjects) Thus, it permits diversity along with uniformity.
like public order, police, public health and
• The Constitution expressly secures the
sanitation, agriculture, prisons, local
predominance of the Union List over the
government, fisheries, markets, theatres,
State List and the Concurrent List and that of
gambling and so on.
the Concurrent List over the State List.
• Thus, in case of overlapping between the
Union List and the State List, the former
should prevail.
• In case of overlapping between the Union
List and the Concurrent List, it is again the
former which should prevail.
• Both, the Parliament and state legislature • Where there is a conflict between the
can make laws with respect to any of the Concurrent List and the State List, it is the
matters enumerated in the Concurrent List. former that should prevail.
This list has at present 52 subjects
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In case of a conflict between the Central law and proclamation of national emergency is in
the state law on a subject enumerated in the operation.
Concurrent List, the central law prevails over
The laws become inoperative on the expiration
the state law.
of six months after the emergency has ceased to
But there is an exception. If the state law has operate.
been reserved for the consideration of the
Here also, the power of a state legislature to
president and has received his assent, then the
make laws on the same matter is not restricted.
state law prevails in that state.
But, in case of repugnancy between a state law
But it would still be competent for the Parliament and a parliamentary law, the latter is to prevail.
to override such a law by subsequently making a
When States Make a Request
law on the same matter.
When the legislatures of two or more states pass
Parliamentary Legislation in the State Field
resolutions requesting the Parliament to enact
The above scheme of distribution of legislative
laws on a matter in the State List, then the
powers between the Centre and the states is to
Parliament can make laws for regulating that
be maintained in normal times.
matter.
But, in abnormal times, the scheme of
A law so enacted applies only to those states
distribution is either modified or suspended.
which have passed the resolutions.
The Constitution empowers the Parliament to
However, any other state may adopt it
make laws on any matter enumerated in the
afterwards by passing a resolution to that effect
State List under the following five extraordinary
in its legislature.
circumstances:
Such a law can be amended or repealed only by
When Rajya Sabha Passes a Resolution
the Parliament and not by the legislatures of the
If the Rajya Sabha declares that it is necessary in concerned states.
the national interest that Parliament should
The effect of passing a resolution under the
make laws on a matter in the State List, then the
above provision is that the Parliament becomes
Parliament becomes competent to make laws on
entitled to legislate with respect to a matter for
that matter.
which it has no power to make a law.
Such a resolution must be supported by two-
On the other hand, the state legislature ceases to
thirds of the members present and voting.
have the power to make a law with respect to
The resolution remains in force for one year; it that matter.
can be renewed any number of times but not
The resolution operates as abdication or
exceeding one year at a time.
surrender of the power of the state legislature
The laws cease to have effect on the expiration with respect to that matter and it is placed
of six months after the resolution has ceased to entirely in the hands of Parliament which alone
be in force. can then legislate with respect to it.
This provision does not restrict the power of a Some examples of laws passed under the above
state legislature to make laws on the same provision are Prize
matter. But, in case of inconsistency between a
Competition Act, 1955; Wild Life (Protection)
state law and a parliamentary law, the latter is
Act, 1972; Water (Prevention and Control of
to prevail.
Pollution) Act, 1974; Urban Land (Ceiling and
During a National Emergency Regulation) Act, 1976; and Transplantation of
Human Organs Act, 1994.
The Parliament acquires the power to legislate
with respect to matters in the State List, while a To Implement International Agreements
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The Parliament can make laws on any matter in passed by the state legislature for his
the State List for implementing the international consideration during a financial emergency.
treaties, agreements or conventions.
Administrative Relations
This provision enables the Central government Articles 256 to 263 in Part XI of the Constitution
to fulfil its international obligations and deal with the administrative relations between
commitments. the Centre and the states.
Some examples of laws enacted under the above The executive power has been divided between
provision are United Nations (Privileges and the Centre and the states on the lines of the
Immunities) Act, 1947; Geneva Convention Act, distribution of legislative powers, except in few
1960; Anti-Hijacking Act, 1982 and legislations cases.
relating to environment and TRIPS.
The executive power of the Centre extends to
During President’s Rule the whole of India:
When the President’s rule is imposed in a state, i. to the matters on which the Parliament has
the Parliament becomes empowered to make exclusive power of legislation (i.e., the
laws with respect to any matter in the State List subjects enumerated in the Union List); and
in relation to that state. ii. to the exercise of rights, authority and
A law made so by the Parliament continues to be jurisdiction conferred on it by any treaty or
operative even after the president’s rule. This agreement.
means that the period for which such a law The executive power of a state extends to its
remains in force is not co-terminus with the territory in respect of matters on which the
duration of the President’s rule. state legislature has exclusive power of
But such a law can be repealed or altered or re- legislation (i.e., the subjects enumerated in the
enacted by the state legislature. State List).

Centre’s Control Over State Legislation In respect of matters on which both the
Parliament and the state legislatures have
Besides the Parliament’s power to legislate power of legislation (i.e., the subjects
directly on the state subjects under the enumerated in the Concurrent List), the
exceptional situations, the Constitution executive power rests with the states except
empowers the Centre to exercise control over when a Constitutional provision or a
the state’s legislative matters in the following parliamentary law specifically confers it on the
ways: Centre.
• The governor can reserve certain types of Therefore, a law on a concurrent subject, though
bills passed by the state legislature for the enacted by the Parliament, is to be executed by
consideration of the President. The the states except when the Constitution or the
president enjoys absolute veto over them. Parliament has directed otherwise.
Obligation of States and the Centre
➢ Bills on certain matters enumerated in the
The Constitution has placed two restrictions on
State List can be introduced in the state
the executive power of the states in order to give
legislature only with the previous sanction
ample scope to the Centre for exercising its
of the president. (For example, the bills
executive power in an unrestricted manner.
imposing restrictions on the freedom of
trade and commerce). Thus, the executive power of every state is to be
exercised in such a way
• The President can direct the states to
reserve money bills and other financial bills • as to ensure compliance with the laws made
by the Parliament and any existing law
which apply in the state; and
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• as not to impede or prejudice the exercise of two. Hence, the Constitution provides for inter-
executive power of the Centre in the state. government delegation of executive functions in
order to mitigate rigidity and avoid a situation
In both the cases, the executive power of the
of deadlock.
Centre extends to giving of such directions to
the state as are necessary for the purpose. Accordingly, the President may, with the
consent of the state government, entrust to that
Thus, Article 365 says that where any state has
government any of the executive functions of
failed to comply with (or to give effect to) any
the Centre.
directions given by the Centre, it will be lawful
for the President to hold that a situation has Conversely, the governor of a state may, with
arisen in which the government of the state the consent of the Central government, entrust
cannot be carried on in accordance with the to that government any of the executive
provisions of the Constitution. It means that, in functions of the state.
such a situation, the President’s rule can be
This mutual delegation of administrative
imposed in the state under Article 356.
functions may be conditional or unconditional.
Centre’s Directions to the States
The Constitution also makes a provision for the
In addition to the above two cases, the Centre is entrustment of the executive functions of the
empowered to give directions to the states with Centre to a state without the consent of that
regard to the exercise of their executive power state.
in the following matters:
But, in this case, the delegation is by the
• the construction and maintenance of means Parliament and not by the president.
of communication (declared to be of national
Thus, a law made by the Parliament on a subject
or military importance) by the state;
of the Union List can confer powers and impose
• the measures to be taken for the protection
duties on a state, or authorise the conferring of
of the railways within the state; powers and imposition of duties by the Centre
• the provision of adequate facilities for upon a state (irrespective of the consent of the
instruction in the mother-tongue at the state concerned). Notably, the same thing
primary stage of education to children cannot be done by the state legislature.
belonging to linguistic minority groups in
the state; and From the above, it is clear that the mutual
• the drawing up and execution of the delegation of functions between the Centre and
specified schemes for the welfare of the the state can take place either under an
Scheduled Tribes in the state. agreement or by a legislation.

The coercive sanction behind the Central While the Centre can use both the methods, a
directions under Article 365 is also applicable in state can use only the first method.
these cases. Cooperation Between the Centre and States
Mutual Delegation of Functions The Constitution contains the following
The distribution of legislative powers between provisions to secure cooperation and
the Centre and the states is rigid. Consequently, coordination between the Centre and the states:
the Centre cannot delegate its legislative powers
• The Parliament can provide for the
to the states and a single state cannot request
adjudication of any dispute or complaint
the Parliament to make a law on a state subject.
with respect to the use, distribution and
The distribution of executive power in general control of waters of any inter-state river and
follows the distribution of legislative powers. river valley.
But, such a rigid division in the executive sphere • The President can establish (under Article
may lead to occasional conflicts between the 263) an Inter-State Council to investigate
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and discuss subject of common interest the basis of a Rajya Sabha resolution to that
between the Centre and the states. effect.
• Full faith and credit is to be given throughout
Each of these three all-India services,
the territory of India to public acts, records
irrespective of their division among different
and judicial proceedings of the Centre and
states, form a single service with common rights
every state.
and status and uniform scales of pay throughout
• The Parliament can appoint an appropriate
the country.
authority to carry out the purposes of the
constitutional provisions relating to the Though the all-India services violate the
interstate freedom of trade, commerce and principle of federalism under the Constitution
intercourse. by restricting the autonomy and patronage of
the states, they are supported on the ground
that

• they help in maintaining high standard of

administration in the Centre as well as in the
states;
• they help to ensure uniformity of the
administrative system throughout the
country; and
• they facilitate liaison, cooperation,
All-India Services coordination and joint action on the issues of
common interest between the Centre and
Like in any other federation, the Centre and the
the states.
states also have their separate public services
called as the Central Services and the State Public Service Commissions
Services respectively.
In the field of public service commissions, the
In addition, there are all-India services—IAS, Centre–state relations are as follows:
IPS and IFS.
• The Chairman and members of a state public
The members of these services occupy top service commission, though appointed by
positions (or key posts) under both the Centre the governor of the state, can be removed
and the states and serve them by turns. only by the President.
• The Parliament can establish a Joint State
But they are recruited and trained by the Centre.
Public Service Commission (JSPSC) for two
These services are controlled jointly by the or more states on the request of the state
Centre and the states. legislatures concerned. The chairman and
members of the JSPSC are appointed by the
The ultimate control lies with the Central
president.
government while the immediate control vests
• The Union Public Service Commission
with the state governments.
(UPSC) can serve the needs of a state on the
In 1947, Indian Civil Service (ICS) was replaced request of the state governor and with the
by IAS and the Indian Police (IP) was replaced approval of the President.
by IPS and were recognised by the Constitution • The UPSC assists the states (when requested
as All-India Services. by two or more states) in framing and
operating schemes of joint recruitment for
In 1966, the Indian Forest Service (IFS) was
any services for which candidates
created as the third All-India Service.
possessing special qualifications are
Article 312 of the Constitution authorises the required.
Parliament to create new All-India Services on

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Integrated Judicial System • Article 355 imposes two duties on the

Centre:
Though India has a dual polity, there is no dual
o to protect every state against external
system of administration of justice.
aggression and internal disturbance; and
The Constitution, on the other hand, established o to ensure that the government of every
an integrated judicial system with the Supreme state is carried on in accordance with the
Court at the top and the state high courts below provisions of the Constitution.
it.
This single system of courts enforces both the
Central laws as well as the state laws. This is
• The governor of a state is appointed by the
done to eliminate diversities in the remedial
president. He holds office during the
procedure.
pleasure of the President. In addition to the
The judges of a state high court are appointed by Constitutional head of the state, the
the president in consultation with the Chief governor acts as an agent of the Centre in the
Justice of India and the governor of the state. state. He submits periodical reports to the
Centre about the administrative affairs of
They can also be transferred and removed by
the state.
the president.
• The state election commissioner, though
The Parliament can establish a common high appointed by the governor of the state, can
court for two or more states. For example, be removed only by the President.
Maharashtra and Goa or Punjab, Haryana and
Chandigarh have a common high court.
Relations During Emergencies

• During the operation of a national

emergency (under Article 352), the Centre
becomes entitled to give executive Financial Relations
directions to a state on ‘any’ matter. Thus, Articles 268 to 293 in Part XII of the Constitution
the state governments are brought under deal with Centre–state financial relations.
the complete control of the Centre, though
they are not suspended. Besides these, there are other provisions
• When the President’s Rule is imposed in a dealing with the same subject.
state (under Article 356), the President can Allocation of Taxing Powers
assume to himself the functions of the state The Constitution divides the taxing powers
government and powers vested in the between the Centre and the states in the
Governor or any other executive authority in following way:
the state.
• During the operation of a financial • The Parliament has exclusive power to levy
emergency (under Article 360), the Centre taxes on subjects enumerated in the Union
can direct the states to observe canons of List (which are 13 in number).
financial propriety and the President can 82. Taxes on income other than agricultural
give other necessary directions including the income.
reduction of salaries of persons serving in
the state and the high court judges. 83. Duties of customs including export duties.

Other Provisions 84. Duties of excise on the following goods

manufactured or produced in India, namely:
The Constitution contains the following other
provisions which enable the Centre to exercise (a) petroleum crude;
control over the state administration: (b) high speed diesel;
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(c) motor spirit (commonly known as petrol); 47. Duties in respect of succession to agricultural
land.
(d) natural gas;
48. Estate duty in respect of agricultural land.
(e) aviation turbine fuel; and
49. Taxes on lands and buildings.
(f) tobacco and tobacco products.
50. Taxes on mineral rights subject to any
85. Corporation tax.
limitations imposed by Parliament by law
86. Taxes on the capital value of the assets, relating to mineral development.
exclusive of agricultural land, of individuals and
51. Duties of excise on the following goods
companies; taxes on the capital of companies.
manufactured or produced in the State and
87. Estate duty in respect of property other than countervailing duties at the same or lower rates
agricultural land. on similar goods manufactured or produced
elsewhere in India:
88. Duties in respect of succession to property
other than agricultural land. (a) alcoholic liquors for human consumption;

89. Terminal taxes on goods or passengers, (b) opium, Indian hemp and other narcotic drugs
carried by railway, sea or air; taxes on railway and narcotics,
fares and freights.
but not including medicinal and toilet
90. Taxes other than stamp duties on preparations containing alcohol or any substance
transactions in stock exchanges and futures included in sub-paragraph (b) of this entry.
markets.
53. Taxes on the consumption or sale of
91. Rates of stamp duty in respect of bills of electricity.
exchange, cheques, promissory notes, bills of
54. Taxes on the sale of petroleum crude, high
lading, letters of credit, policies of insurance,
speed diesel, motor spirit (commonly known as
transfer of shares, debentures, proxies and
petrol), natural gas, aviation turbine fuel and
receipts.
alcoholic liquor for human consumption, but not
92A. Taxes on the sale or purchase of goods other including sale in the course of inter-State trade or
than newspapers, where such sale or purchase commerce or sale in the course of international
takes place in the course of inter-State trade or trade or commerce of such goods.
commerce.
56. Taxes on goods and passengers carried by
92B. Taxes on the consignments of goods road or on inland waterways.
(whether the consignment is to the person
57. Taxes on vehicles, whether mechanically
making it or to any other person), where such
propelled or not, suitable for use on roads,
consignment takes place in the course of inter-
including tramcars subject to the provisions of
State trade or commerce.
entry 35 of List III.
96. Fees in respect of any of the matters in this
58. Taxes on animals and boats.
List, but not including fees taken in any court.
59. Tolls.
• The state legislature has exclusive power to
levy taxes on subjects enumerated in the 60. Taxes on professions, trades, callings and
State List (which are 18 in number). employments.

45. Land revenue, including the assessment and 61. Capitation taxes.
collection of revenue, the maintenance of land
62. Taxes on entertainments and amusements to
records, survey for revenue purposes and records
the extent levied and collected by a Panchayat or
of rights, and alienation of revenues.
a Municipality or a Regional Council or a District
46. Taxes on agricultural income. Council.]
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63. Rates of stamp duty in respect of documents a) no tax can be imposed on the sale or
other than those specified in the provisions of List purchase taking place outside the states;
I with regard to rates of stamp duty. b) no tax can be imposed on the sale or
purchase taking place in the course of
66. Fees in respect of any of the matters in this
import or export;
List, but not including fees taken in any court.
c) no tax can be imposed on the sale or
• There are no tax entries in the purchase taking place in the course of inter-
Concurrent List. In other words, the state trade and commerce; and
concurrent jurisdiction is not available with d) a tax imposed on the sale or purchase of
respect to tax legislation. But, the 101st goods declared by Parliament to be of
Amendment Act of 2016 has made an special importance in inter-state trade and
exception by making a special provision commerce is subject to the restrictions and
with respect to goods and services tax. This conditions specified by the Parliament.
Amendment has conferred concurrent • A state legislature can impose tax on the
power upon Parliament and State consumption or sale of electricity.
Legislatures to make laws governing goods But no tax can be imposed on the
and services tax consumption or sale of electricity which is
• The residuary power of taxation (that is, the
power to impose taxes not enumerated in
any of the three lists) is vested in the a) consumed by the Centre or sold to the
Parliament. Under this provision, the Centre; or
Parliament has imposed gift tax, wealth tax b) consumed in the construction,
and expenditure tax. maintenance or operation of any railway
by the Centre or by the concerned
The Constitution also draws a distinction
railway company or sold to the Centre or
between the power to levy and collect a tax and
the railway company for the same
the power to appropriate the proceeds of the tax
purpose.
so levied and collected. For example, the
• A state legislature can impose a tax in
income-tax is levied and collected by the Centre
respect of any water or electricity stored,
but its proceeds are distributed between the
generated, consumed, distributed or sold by
Centre and the states.
any authority established by Parliament for
Further, the Constitution has placed the regulating or developing any inter-state
following restrictions on the taxing powers of river or river valley. But, such a law, to be
the states: effective, should be reserved for the
president’s consideration and receive his
• A state legislature can impose taxes on assent.
professions, trades, callings and
employments. But, the total amount of such Distribution of Tax Revenues
taxes payable by any person should not The 80th Amendment Act of 2000 and the 101st
exceed Rs. 2,500 per annum. Amendment Act of 2016 have introduced major
changes in the scheme of the distribution of tax
revenues between the centre and the states.
• The 80th Amendment was enacted to give
effect to the recommendations of the 10th
• A state legislature can impose taxes on the Finance Commission.
sale or purchase of goods (other than • The Commission recommended that out of
the total income obtained from certain
newspapers). But, this power of the states to
central taxes and duties, 29% should go to
impose sales tax is subjected to the four
the states. This is known as the ‘Alternative
restrictions: Scheme of Devolution’ and came into effect
retrospectively from April 1, 1996.
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• This amendment has brought several central • Further the Amendment deleted Article 268-
taxes and duties like Corporation Tax and A as well as Entry 92-C in the Union List,
Customs Duties at par with Income Tax both were dealing with service tax.
(taxes on income other than agricultural • They were added earlier by the 88th
income) as far as their constitutionally Amendment Act of 2003.
mandated sharing with the states is • The service tax was levied by the Centre but
concerned. collected and appropriated by both the
The 101st Amendment has paved the way for the Centre and the States.
introduction of a new tax regime (i.e., goods and
services tax - GST) in the country. After the above two amendments (i.e., 80th
Amendment and 101st Amendment), the
Accordingly, the Amendment conferred present position with respect to the distribution
concurrent taxing powers upon the Parliament of tax revenues between the centre and the
and the State Legislatures to make laws for states is as follows:
levying GST on every transaction of supply of
goods or services or both. Taxes Levied by the Centre but Collected and
The GST replaced a number of indirect taxes Appropriated by the States (Article 268):
levied by the Union and the State Governments • This category includes the stamp duties on
and is intended to remove cascading effect of bills of exchange, cheques, promissory notes,
taxes and provide for a common national policies of insurance, transfer of shares and
market for goods and services. others.
• The proceeds of these duties levied within
The Amendment provided for subsuming of any state do not form a part of the
various central indirect taxes and levies such as Consolidated Fund of India, but are assigned
i. Central Excise Duty, to that state.
ii. Additional Excise Duties,
iii. Excise Duty levied under the Medicinal and Taxes Levied and Collected by the Centre but
Toilet Preparations (Excise Duties) Act, Assigned to the States (Article 269):
1955, • Taxes on the sale or purchase of goods
iv. Service Tax, (other than newspapers) in the course of
v. Additional Customs Duty commonly known inter-state trade or commerce.
as Countervailing Duty, • Taxes on the consignment of goods in the
vi. Special Additional Duty of Customs, and course of inter-state trade or commerce.
vii. Central Surcharges and Cesses • The net proceeds of these taxes do not form
a part of the Consolidated Fund of India.
so far as they related to the supply of goods and They are assigned to the concerned states in
services. accordance with the principles laid down by
the Parliament.
Similarly, the Amendment provided for
subsuming of Levy and Collection of Goods and Services
i. State Value Added Tax / Sales Tax, Tax in Course of Inter-State Trade or
ii. Entertainment Tax (other than the tax levied Commerce (Article 269-A):
by the local bodies), • The Goods and Services Tax (GST) on
iii. Central Sales Tax (levied by the Centre and supplies in the course of inter-state trade or
collected by the States), commerce are levied and collected by the
iv. Octroi and Entry Tax, Centre. But this tax is divided between the
v. Purchase Tax, Centre and the States in the manner
vi. Luxury Tax, provided by Parliament on the
vii. Taxes on lottery, betting and gambling, and recommendations of the GST Council.
viii. State Surcharges and Cesses • Further, the Parliament is also authorized to
formulate the principles for determining the
in so far as they related to the supply of goods place of supply, and when a supply of goods
and services. or services or both takes place in the course
of inter-state trade or commerce.
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public sector enterprises; (v) escheat and lapse;

Taxes Levied and Collected by the Centre but and (vi) others.
Distributed between the Centre and the
States (Article 270): Grants-in-Aid to the States
This category includes all taxes and duties Besides sharing of taxes between the Centre and
referred to in the Union List except the the states, the Constitution provides for grants-
following: in-aid to the states from the Central resources.
• Duties and taxes referred to in Articles 268,
269 and 269-A; There are two types of grants-in-aid, viz,
• Surcharge on taxes and duties referred to in statutory grants and discretionary grants:
Article 271; and
• Any cess levied for specific purposes under Statutory Grants
any law made by Parliament • Article 275 empowers the Parliament to
make grants to the states which are in need
The manner of distribution of the net proceeds of financial assistance and not to every state.
of these taxes and duties is prescribed by the • Different sums may be fixed for different
President on the recommendation of the states. These sums are charged on the
Finance Commission. Consolidated Fund of India every year.
• Apart from this general provision, the
Surcharge on Certain Taxes and Duties for Constitution also provides for specific grants
Purposes of the Centre (Article 271): for promoting the welfare of the scheduled
• The Parliament can at any time levy the tribes in a state or for raising the level of
surcharges on taxes and duties referred to in administration of the scheduled areas in a
Articles 269 and 270. state including the State of Assam.
• The proceeds of such surcharges go to the • The statutory grants under Article 275 (both
Centre exclusively. In other words, the states general and specific) are given to the states
have no share in these surcharges. on the recommendation of the Finance
Commission.
However, the Goods and Services Tax (GST) is
exempted from this surcharge. In other words, Discretionary Grants
this surcharge cannot be imposed on the GST. • Article 282 empowers both the Centre and
the states to make any grants for any public
Taxes Levied and Collected and Retained by purpose, even if it is not within their
the States: respective legislative competence.
• These are the taxes belonging to the states • Under this provision, the Centre makes
exclusively. grants to the states.
• They are enumerated in the state list and are • These grants are also known as
18 in number. discretionary grants, the reason being that
the Centre is under no obligation to give
Distribution of Non-tax Revenues these grants and the matter lies within its
discretion.
The Centre
The receipts from the following form the major Other Grants
sources of non-tax revenues of the Centre: (i) • The Constitution also provided for a third
posts and telegraphs; (ii) railways; (iii) banking; type of grants-in-aid, but for a temporary
(iv) broadcasting (v) coinage and currency; (vi) period.
central public sector enterprises; (vii) escheat • Thus, a provision was made for grants in lieu
and lapse; and (viii) others. of export duties on jute and jute products to
the States of Assam, Bihar, Orissa and West
The States Bengal.
The receipts from the following form the major • These grants were to be given for a period of
sources of non-tax revenues of the states: (i) ten years from the commencement of the
irrigation; (ii) forests; (iii) fisheries; (iv) state Constitution.

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• These sums were charged on the and the manner in which they shall be
Consolidated Fund of India and were made selected.
to the states on the recommendation of the • It is required to make recommendations to
Finance Commission. the President on the following matters:
o The distribution of the net proceeds of
Goods and Services Tax Council taxes to be shared between the Centre
• The smooth and efficient administration of and the states, and the allocation
the goods and services tax (GST) requires a between the states, the respective shares
co-operation and co-ordination between the of such proceeds.
Centre and the States. o The principles which should govern the
• In order to facilitate this consultation grants-in-aid to the states by the Centre
process, the 101st Amendment Act of 2016 (i.e., out of the Consolidated Fund of
provided for the establishment of a Goods India).
and Services Tax Council or the GST Council. o The measures needed to augment the
• Article 279-A empowered the President to Consolidated fund of a state to
constitute a GST Council by an order. supplement the resources of the
panchayats and the municipalities in the
state on the basis of the
recommendations made by the State
• The Council is a joint forum of the Centre and Finance Commission.
the States. o Any other matter referred to it by the
President in the interests of sound
• It is required to make recommendations to
finance.
the Centre and the States on the following
matters:
Till 1960, the Commission also suggested the
o The taxes, cesses and surcharges levied
amounts paid to the States of Assam, Bihar, Orissa
by the Centre, the States and the local
and West Bengal in lieu of assignment of any
bodies that would get merged in GST.
share of the net proceeds in each year of export
o The goods and services that may be
duty on jute and jute products.
subjected to GST or exempted from GST.
o Model GST Laws, principles of levy,
Protection of the States’ Interest
apportionment of GST levied on supplies
To protect the interest of states in the financial
in the course of inter-state trade or
matters, the Constitution lays down that the
commerce and the principles that govern
following bills and related amendments can be
the place of supply.
introduced in either House of the Parliament
o The threshold limit of turnover below
only on the recommendation of the President:
which goods and services may be
exempted from GST.
o The rates including floor rates with
bands of GST. • A bill which imposes or varies any tax or
o Any special rate or rates for a specified duty in which states are interested;
period to raise additional resources • A bill which varies the meaning of the
during any natural calamity or disaster. expression ‘agricultural income’ as defined
for the purposes of the enactments relating
to Indian income tax;
Finance Commission
• A bill which affects the principles on which
• Article 280 provides for a Finance moneys are or may be distributable to
Commission as a quasi-judicial body. states; and
• It is constituted by the President every fifth • A bill which imposes any surcharge on any
year or even earlier. specified tax or duty for the purpose of the
• It consists of a Chairman and four other Centre.
members to be appointed by the President.
• Parliament may by law determine the The expression “tax or duty in which states are
qualifications which shall be requisite for interested” means:
appointment as members of the Commission
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• a tax or duty the whole or part of the net • The property of Centre is exempted from all
proceeds whereof are assigned to any state; taxes imposed by a state or any authority
or within a state like municipalities, district
• a tax or duty by reference to the net boards, panchayats and so on.
proceeds whereof sums are for the time
being payable, out of the Consolidated Fund The word ‘property’ includes lands, buildings,
of India to any state. chattels, shares, debts, everything that has a
money value, and every kind of property–movable
The phrase ‘net proceeds’ means the proceeds of or immovable and tangible or intangible.
a tax or a duty minus the cost of collection. The
net proceeds of a tax or a duty in any area is to be • Any authority within a State can levy any tax
ascertained and certified by the Comptroller and on any property of the Union, which was
Auditor-General of India. His certificate is final. immediately before the commencement of
the Constitution liable or treated as liable for
Borrowing by the Centre and the States taxation.
The Constitution makes the following
provisions with regard to the borrowing powers Exemption of State Property and Income
of the Centre and the states: from Central Taxation
• The property and income of a state is
• The Central government can borrow either exempted from Central taxation.
within India or outside upon the security of • Such income may be derived from sovereign
the Consolidated Fund of India or can give functions or commercial functions.
guarantees, but both within the limits fixed • But the Centre can tax the commercial
by the Parliament. operations of a state if Parliament so
• Similarly, a state government can borrow provides.
within India (and not abroad) upon the • However, the Parliament can declare any
security of the Consolidated Fund of the particular trade or business as incidental to
State or can give guarantees, but both within the ordinary functions of the government
the limits fixed by the legislature of that and it would then not be taxable.
state. • Notably, the property and income of local
• The Central government can make loans to authorities situated within a state are not
any state or give guarantees in respect of exempted from the Central taxation.
loans raised by any state as laid down under Similarly, the property or income of
any law made by the Parliament. corporations and companies owned by a
state can be taxed by the Centre.
Any sums required for the purpose of making such Effects of Emergencies
loans are to be charged on the Consolidated Fund The Centre-state financial relations in normal
of India. times undergo changes during emergencies.
These are as follows:
• A state cannot raise any loan without the
consent of the Centre, if there is still National Emergency
outstanding any part of a loan made to the While the proclamation of national emergency
state by the Centre or in respect of which a (under Article 352) is in operation, the
guarantee has been given by the Centre. president can modify the constitutional
distribution of revenues between the Centre
and the states. This means that the president
Inter-Governmental Tax Immunities can either reduce or cancel the transfer of
Like any other federal Constitution, the Indian finances (both tax sharing and grants-in-aid)
Constitution also contain the rule of ‘immunity from the Centre to the states.
from mutual taxation’ and makes the following
provisions in this regard: Such modification continues till the end of the
financial year in which the emergency ceases to
Exemption of Central Property from State operate.
Taxation
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Financial Emergency • to reduce the salaries and allowances of all

While the proclamation of financial emergency class of persons serving in the state; and
(under Article 360) is in operation, the Centre • to reserve all money bills and other financial
can give directions to the states: bills for the consideration of the President.
• to observe the specified canons of financial
propriety;

********

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Chapter 15 – Inter-State Relations

The successful functioning of the Indian federal an ad hoc tribunal for the adjudication of a
system depends not only on the harmonious dispute between two or more states in
relations and close cooperation between the relation to the waters of an inter-state river
Centre and the states but also between the or river valley.
states. • The decision of the tribunal would be final
and binding on the parties to the dispute.
Hence, the Constitution makes the following
• Neither the Supreme Court nor any other
provisions with regard to inter-state comity:
court is to have jurisdiction in respect of any
• Adjudication of inter-state water disputes. water dispute which may be referred to such
• Coordination through inter-state councils. a tribunal under this Act.
• Mutual recognition of public acts, records
The need for an extra judicial machinery to
and judicial proceedings.
settle inter-state water disputes is as follows:
• Freedom of inter-state trade, commerce and
intercourse.
“The Supreme Court would indeed have
In addition, the zonal councils have been jurisdiction to decide any dispute between
established by the Parliament to promote inter- states in connection with water supplies, if
state cooperation and coordination. legal rights or interests are concerned; but
the experience of most countries has shown
Inter-State Water Disputes that rules of law based upon the analogy of
Article 262 of the Constitution provides for the private proprietary interests in water do not
adjudication of interstate water disputes. It afford a satisfactory basis for settling
makes two provisions: disputes between the states where the
• Parliament may by law provide for the interests of the public at large in the proper
adjudication of any dispute or complaint use of water supplies are involved.”
with respect to the use, distribution and
control of waters of any inter-state river and
river valley. So far, the Central government has set up nine
• Parliament may also provide that neither the inter-state water dispute tribunals.
Supreme Court nor any other court is to
exercise jurisdiction in respect of any such
dispute or complaint.
Under this provision, the Parliament has
enacted two laws
o the River Boards Act (1956)
o the Inter-State Water Disputes Act (1956)

• The River Boards Act provides for the

establishment of river boards for the
regulation and development of inter-state
river and river valleys.
• A river board is established by the Central
government on the request of the state
governments concerned to advise them.
• The Inter-State Water Disputes Act
empowers the Central government to set up
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Did this solve the issue?

• Though Award is final and beyond the

jurisdiction of Courts, either States approach
Supreme Court under Article 136 (Special
Leave Petition) or private persons approach
Supreme Court under Article 32 linking
issue with the violation of Article 21 (Right
Inter-State Water Dispute Act, 1956: Extra
to Life).
Ordinary Delays in the execution and
• The composition of the tribunal is not
implementation
multidisciplinary and it consists of persons
Many times there have been extraordinary only from the judiciary. Thus, there is not
delays in constituting the tribunal. much difference in tribunal and Supreme
Court Bench.
For example, in the case of Godavari water
• Tribunals work gets delayed due to the lack
dispute, the request was made in 1962. The
of availability of the data.
tribunal was constituted in 1968 and the award
was given in 1979 which was published in the The Inter-State River Water Disputes
Gazette in 1980. (Amendment) Bill, 2019
Similarly, in Cauvery Water Dispute, Tamil Disputes Resolution Committee (DRC)
Nadu Government requested to constitute the
• Under the Bill, when a state puts in a request
tribunal in 1970. Only after the intervention of
regarding any water dispute, the central
Supreme Court, the tribunal was constituted in
government will set up a Disputes
1990.
Resolution Committee (DRC), to resolve
Due to delay in constituting the tribunal, state the dispute amicably.
governments continued to invest resources in the • The DRC will comprise of a Chairperson, and
construction and modification of dams, thus experts with at least 15 years of experience
strengthening their claims. in relevant sectors, to be nominated by the
central government.
Solution: Amendments to the Act in 2002
• It will also comprise one member from each
• In 2002, an Amendment was made in the Act state (at Joint Secretary level), who are party
by which the tribunal has to be constituted to the dispute, to be nominated by the
within a year of getting the request. concerned state government.
• It has also been mandated that the tribunal • The DRC will seek to resolve the dispute
should give the award within 3 years. In through negotiations, within one year
certain situations, two more years can be (extendable by six months), and submit its
given. Thus, the maximum time period was 5 report to the central government.
years within which the tribunal should give • If a dispute cannot be settled by the DRC, the
the award. central government will refer it to the Inter-
• Tribunal award is not immediately State River Water Disputes Tribunal. Such
implemented. Concerned parties may seek referral must be made within three months
clarification within 3 months of the award. from the receipt of the report from the DRC.
• It has also been clarified that the Tribunal
Single Permanent Tribunal
Awards will have the same force as the order
or decree of Supreme Court. The award is • The central government will set up an Inter-
final and beyond the jurisdiction of Supreme State River Water Disputes Tribunal, for the
Court. adjudication of water disputes. This
Tribunal can have multiple benches.
• All existing Tribunals will be dissolved, and
the water disputes pending adjudication
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before such existing Tribunals will be for the better co-ordination of policy and
transferred to the new Tribunal. action with respect to that subject.
• Under the Act, the Tribunal must give its
The council’s function to enquire and advice
decision within three years, which may be
upon inter-state disputes is complementary to
extended by two years. Under the Bill, the
the Supreme Court’s jurisdiction under Article
proposed Tribunal must give its decision on
131 to decide a legal controversy between the
the dispute within two years, which may be
governments.
extended by another year.
• Under the Act, the decision of the Tribunal The Council can deal with any controversy
must be published by the central whether legal or non-legal, but its function is
government in the official gazette. This advisory unlike that of the court which gives a
decision has the same force as that of an binding decision.
order of the Supreme Court. The Bill
Under the above provisions of Article 263, the
removes the requirement of such
president has established the following councils
publication. It adds that the decision of the
to make recommendations for the better
Bench of the Tribunal will be final and
coordination of policy and action in the related
binding on the parties involved in the
subjects:
dispute.
• Under the Act, the central government • Central Council of Health and Family
maintains a data bank and information Welfare.
system at the national level for each river • Central Council of Local Government.
basin. The Bill provides that the central • Four Regional Councils for Sales Tax for the
government will appoint or authorise an Northern, Eastern, Western and Southern
agency to maintain such data bank. Zones.
Inter-State Councils Establishment of Inter-State Council
Article 263 contemplates the establishment of
The Sarkaria Commission on Centre-State
an Inter-State Council to effect coordination
Relations (1983–88) made a strong case for the
between the states and between Centre and
establishment of a permanent Inter-State
states.
Council under Article 263 of the Constitution.
Thus, the President can establish such a council
It recommended that in order to differentiate
if at any time it appears to him that the public
the Inter-State Council from other bodies
interest would be served by its establishment.
established under the same Article 263, it must
He can define the nature of duties to be be called as the Inter-Governmental Council.
performed by such a council and its The Commission recommended that the Council
organisation and procedure. should be charged with the duties laid down in
clauses (b) and (c) of Article 263.
Even though the president is empowered to
define the duties of an inter-state council, In pursuance of the above recommendations of
Article 263 specifies the duties that can be the Sarkaria Commission, the Janata Dal
assigned to it in the following manner: Government headed by V. P. Singh established
the Inter-State Council in 1990.
• inquiring into and advising upon disputes
which may have arisen between States; It consists of the following members:
• investigating and discussing subjects in
• Prime minister as the Chairman
which some or all of the States, or the Union
• Chief ministers of all the states
and one or more of the States, have a
• Chief ministers of union territories having
common interest; or
legislative assemblies
• making recommendations upon any such
• Administrators of union territories not
subject and, in particular, recommendations
having legislative assemblies
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• Six Ministers of Cabinet rank in the Union Public Acts, Records and Judicial
Council of Ministers to be nominated by the Proceedings
Prime Minister Under the Constitution, the jurisdiction of each
The Presidential Order of 1990 has been amended state is confined to its own territory. Hence, it is
twice vide Order dated 19th July 1990 and Order possible that the acts and records of one state
dated 24th December 1996 providing for may not be recognised in another state.
Governor of a State under President’s rule to To remove any such difficulty, the Constitution
attend the meeting of the Council and nomination contains the “Full Faith and Credit” clause
by the Chairman of permanent invitees from which lays down the following:
amongst the other Union Ministers, respectively.
• Full faith and credit shall to be given
The Inter-State Council has met eleven times so throughout the territory of India to public
far. acts, records and judicial proceedings of the
The Eleventh Meeting of the Inter-State Council Centre and every state.
held on 16.07.2016 discussed the following The expression ‘public acts’ includes both
agenda items: legislative and executive acts of the government.
• Consideration of the Recommendations of The expression ‘public record’ includes any
the Punchhi Commission on Centre-State official book, register or record made by a public
Relations. servant in the discharge of his official duties.
• Use of Aadhaar as an identifier and use of
DBT for providing Subsidies, Benefits and The manner in which and the conditions under
Public Services. which such acts, records and proceedings are to
• Improving Quality of School Education with be proved and their effect determined would be
focus on improving learning outcomes, as provided by the laws of Parliament.
incentivising better performance, etc. Final judgements and orders of civil courts in
• Internal Security with focus on intelligence any part of India are capable of execution
sharing and coordination for combating anywhere within India.
terrorism / insurgency, police reforms and
police modernisation. The rule applies only to civil judgements and not
to criminal judgements.

Inter-State Trade and Commerce

Articles 301 to 307 in Part XIII of the
There is also a Standing Committee of the Constitution deal with the trade, commerce and
Council. It was set up in 1996 for continuous intercourse within the territory of India.
consultation and processing of matters for the
• Article 301 declares that trade, commerce
consideration of the Council.
and intercourse throughout the territory of
India shall be free subjected to other
provisions of this part.
• The object of this provision is to break down
It consists of the following members: the border barriers between the states and
to create one unit with a view to encourage
• Union Home Minister as the Chairman the free flow of trade, commerce and
• Union Cabinet Ministers and Chief Ministers intercourse in the country.
of States as the members • The freedom under this provision is not
confined to interstate trade, commerce and
intercourse but also extends to intra-state
trade, commerce and intercourse.

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• Thus, Article 301 will be violated whether • The Parliament can also confer on that
restrictions are imposed at the frontier of authority the necessary powers and duties.
any state or at any prior or subsequent stage. • But no such authority has been appointed so
far.
The freedom guaranteed by Article 301 is a
freedom from all restrictions, except those Zonal Councils
which are provided for in the other provisions The Zonal Councils are the statutory (and not
(Articles 302 to 305) of Part XIII of the the constitutional) bodies.
Constitution itself.
They are established by an Act of the
• Parliament can impose restrictions on the Parliament, that is, States Reorganisation Act of
freedom of trade, commerce and intercourse 1956.
between the states or within a state in public
interest. The act divided the country into five zones
• But the Parliament cannot give preference (Northern, Central, Eastern, Western and
one state over another or discriminate Southern) and provided a zonal council for each
between the state except in the case of zone.
scarcity of goods in any part of India. Name Members Headquarters
Haryana,
Himachal
• The legislature of a state can impose Pradesh,
reasonable restrictions on the freedom of Punjab,
trade, commerce and intercourse with that Northern Rajasthan,
state or within that state in public interest. Zonal NCT of Delhi, New Delhi
Council UT of
• But, a bill for this purpose can be introduced
Chandigarh,
in the legislature only with the previous
UT of Jammu
sanction of the president. & Kashmir and
• Further, the state legislature cannot give UT of Ladakh
preference to one state over another or Chhattisgarh,
discrimination between the states. Central Uttarakhand,
• The legislature of a state can impose on Zonal Uttar Pradesh Prayagraj
goods imported from other states or the Council and Madhya
union territories any tax to which similar Pradesh
goods manufactured in that state are subject. Bihar,
Eastern
This provision prohibits the imposition of Jharkhand,
Zonal Kolkata
discriminatory taxes by the state. Odisha and
Council
West Bengal
• The freedom (under Article 301) is subject
Goa, Gujarat,
to the nationalisation laws (i.e., laws
Maharashtra
providing for monopolies in favour of the Western
and the UT of Mumbai
Centre or the states). Zonal
Dadra & Nagar
• Thus, the Parliament or the state legislature Council
Haveli and
can make laws for the carrying on by the Daman & Diu
respective government any trade, business, Andhra
industry or service, whether to the Pradesh,
exclusion, complete or partial, of citizens or Karnataka,
Southern
otherwise. Kerala, Tamil
Zonal Chennai
• The Parliament can appoint an appropriate Nadu,
Council
authority for carrying out the purposes of Telangana and
the UT of
the above provisions relating to the freedom
Puducherry
of trade, commerce and intercourse and
restrictions on it.
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While forming these zones, several factors have Functions of the Councils:
been taken into account which include: the
• Each Zonal Council shall be an advisory body
natural divisions of the country, the river
and may discuss any matter in which some
systems and means of communication, the
or all of the States represented in that
cultural and linguistic affinity and the
Council, or the Union and one or more of the
requirements of economic development,
States represented in that Council, have a
security and law and order.
common interest and advise the Central
Each zonal council consists of the following Government and the Government of each
members: State concerned as to the action to be taken
on any such matter.
• In particular, and without prejudice to the
• Home Minister of Central government generality of the above provisions, a Zonal
• Chief ministers of all the States in the zone Council may discuss, and make
• Two other ministers from each state in the recommendations with regard to:
zone (nominated by Governor) o any matter of common interest in the field of
economic and social planning;
if there is no Council of Ministers in any such o any matter concerning border disputes,
State, three members from that State to be linguistic minorities or inter-State
nominated by the President transport; and
• where any Union Territory is included in the o any matter connected with, or arising out of,
zone, not more than two members from each the reorganisation of the States under this
such territory to be nominated by the Act.
President All Zonal Councils have constituted Standing
The Chief Ministers of the States included in Committees consisting of the Chief Secretaries
each zone shall act as Vice-Chairman of the of the member States to screen agenda items
Zonal Council for that zone by rotation, each to be placed before the respective Zonal Council
holding office for a period of one year at a time. for discussion apart from keeping a watch on
the progress of implementation of the Council’s
If during that period there is no Council of recommendations.
Ministers in the State concerned, such member
from that State as the President may nominate in North-Eastern Council
this behalf shall act as Vice-Chairman of the Zonal In addition to the above Zonal Councils, a North-
Council. Eastern Council was created by a separate Act of
Parliament– the North-Eastern Council Act of
The Zonal Council for each zone shall have the 1971.
following persons as Advisers to assist the
Council in the performance of its duties, Its members include Assam, Manipur, Mizoram,
Arunachal Pradesh, Nagaland, Meghalaya,
• one person nominated by the Planning Tripura and Sikkim.
Commission (now NITI Aayog);
• the Chief Secretary to the Government of Its functions are similar to those of the zonal
each of the States included in the Zone; and councils, but with few additions. It has to
• the Development Commissioner or any formulate a unified and coordinated regional
other officer nominated by the Government plan covering matters of common importance.
of each of the States included in the Zone. It has to review from time to time the measures
taken by the member states for the maintenance
of security and public order in the region.

********

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Chapter 16 – Emergency Provisions

The Emergency provisions are contained in Part

An emergency due to war, external
XVIII of the Constitution, from Articles 352 to
aggression or armed rebellion (Article
360.
352).
These provisions enable the Central
This is popularly known as ‘National
government to meet any abnormal situation
Emergency’. However, the Constitution
effectively.
employs the expression ‘proclamation of
The rationality behind the incorporation of emergency’ to denote an emergency of this
these provisions in the Constitution is to type.
safeguard the sovereignty, unity, integrity and
security of the country, the democratic political
system, and the Constitution. An Emergency due to the failure of the
During an Emergency, the Central government constitutional machinery in the states
becomes all powerful and the states go into the (Article 356).
total control of the Centre. This is popularly known as ‘President’s
It converts the federal structure into a unitary Rule’. It is also known by two other names –
one without a formal amendment of the ‘State Emergency’ or ‘constitutional
Constitution. Emergency’.

This kind of transformation of the political However, the Constitution does not use the
system from federal during normal times to word ‘emergency’ for this situation.
unitary during Emergency is a unique feature of
the Indian Constitution.
Financial Emergency due to a threat to the
In this context, Dr B.R. Ambedkar observed in financial stability or credit of India (Article
the Constituent Assembly that: 360).

‘All federal systems including American are

placed in a tight mould of federalism. No National Emergency
matter what the circumstances, it cannot Grounds of Declaration
change its form and shape. It can never be Under Article 352, the President can declare a
unitary. national emergency when the security of India
On the other hand, the Constitution of India or a part of it is threatened by war or external
aggression or armed rebellion.
can be both unitary as well as federal
according to the requirements of time and It may be noted that the president can declare a
circumstances. In normal times, it is framed national emergency even before the actual
to work as a federal system. But in times of occurrence of war or external aggression or
Emergency, it is so designed as to make it armed rebellion, if he is satisfied that there is an
work as though it was a unitary system.’ imminent danger.
The President can also issue different
The Constitution specifies three types of proclamations on grounds of war, external
emergencies: aggression, armed rebellion, or imminent
danger thereof, whether or not there is a
proclamation already issued by him and such
proclamation is in operation.

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When a national emergency is declared on the If the proclamation of emergency is issued at a

ground of ‘war’ or ‘external aggression’, it is time when the Lok Sabha has been dissolved or
known as ‘External Emergency’. the dissolution of the Lok Sabha takes place
during the period of one month without
On the other hand, when it is declared on the
approving the proclamation, then the
ground of ‘armed rebellion’, it is known as
proclamation survives until 30 days from the
‘Internal Emergency’.
first sitting of the Lok Sabha after its
A proclamation of national emergency may be reconstitution, provided the Rajya Sabha has in
applicable to the entire country or only a part of the meantime approved it.
it.

If approved by both the Houses of Parliament,

Originally, the Constitution mentioned ‘internal the emergency continues for six months, and
disturbance’ as the third ground for the can be extended to an indefinite period with an
proclamation of a National Emergency, but the approval of the Parliament for every six months.
expression was too vague and had a wider
connotation.
Hence, the 44th Amendment Act of 1978
substituted the words ‘armed rebellion’ for
‘internal disturbance’.
Thus, it is no longer possible to declare a
If the dissolution of the Lok Sabha takes place
National Emergency on the ground of ‘internal
during the period of six months without
disturbance’ as was done in 1975 by the
approving the further continuance of
Congress government headed by Indira Gandhi.
Emergency, then the proclamation survives
until 30 days from the first sitting of the Lok
Sabha after its reconstitution, provided the
The President, however, can proclaim a national
Rajya Sabha has in the mean-time approved its
emergency only after receiving a written
continuation.
recommendation from the cabinet.
Every resolution approving the proclamation of
This means that the emergency can be declared
emergency or its continuance must be passed by
only on the concurrence of the cabinet and not
either House of Parliament by a special majority,
merely on the advice of the prime minister.
that is,
In 1975, the then Prime Minister, Indira Gandhi
• a majority of the total membership of that
advised the president to proclaim emergency
house, and
without consulting her cabinet.
• a majority of not less than two-thirds of the
The cabinet was informed of the proclamation members of that house present and voting.
after it was made, as a fait accompli.

Parliamentary Approval and Duration Revocation of Proclamation

The proclamation of Emergency must be A proclamation of emergency may be revoked
approved by both the Houses of Parliament by the President at any time by a subsequent
within one month from the date of its issue. proclamation. Such a proclamation does not
require the parliamentary approval.
The President must revoke a proclamation if the
Lok Sabha passes a resolution disapproving its
continuation.
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However, during a national emergency, the

Centre becomes entitled to give executive
directions to a state on ‘any’ matter.
Where one-tenth of the total number of
Thus, the state governments are brought under
members of the Lok Sabha give a written notice
the complete control of the Centre, though they
to the Speaker (or to the president if the House
are not suspended.
is not in session), a special sitting of the House
should be held within 14 days for the purpose of Legislative
considering a resolution disapproving the
During a national emergency, the Parliament
continuation of the proclamation.
becomes empowered to make laws on any
A resolution of disapproval is different from a subject mentioned in the State List.
resolution approving the continuation of a
Although the legislative power of a state
proclamation in the following two respects:
legislature is not suspended, it becomes subject
1. The first one is required to be passed by the to the overriding power of the Parliament.
Lok Sabha only, while the second one needs
Thus, the normal distribution of the legislative
to be passed by the both Houses of
powers between the Centre and states is
Parliament.
suspended, though the state Legislatures are not
2. The first one is to be adopted by a simple
suspended.
majority only, while the second one needs to
be adopted by a special majority. In brief, the Constitution becomes unitary
rather than federal.
Effects of National Emergency
A proclamation of Emergency has drastic and The laws made by Parliament on the state
wide-ranging effects on the political system. subjects during a National Emergency become
inoperative six months after the emergency has
These consequences can be grouped into three
ceased to operate.
categories:
Notably, while a proclamation of national
1. Effect on the Centre-state relations,
emergency is in operation, the President can
2. Effect on the life of the Lok Sabha and State
issue ordinances on the state subjects also, if the
assembly, and
Parliament is not in session.
3. Effect on the Fundamental Rights.
Further, the Parliament can confer powers and
Effect on the Centre-State Relations
impose duties upon the Centre or its officers and
While a proclamation of Emergency is in force, authorities in respect of matters outside the
the normal fabric of the Centre-state relations Union List, in order to carry out the laws made
undergoes a basic change. by it under its extended jurisdiction as a result
of the proclamation of a National Emergency.
This can be studied under three heads, namely,
executive, legislative and financial. The two consequences mentioned above
(executive and legislative) extends not only to a
Executive
state where the Emergency is in operation but
During a national emergency, the executive also to any other state.
power of the Centre extends to directing any
Financial
state regarding the manner in which its
executive power is to be exercised. While a proclamation of national emergency is
in operation, the President can modify the
In normal times, the Centre can give executive
constitutional distribution of revenues between
directions to a state only on certain specified
the centre and the states.
matters.

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This means that the president can either reduce While a proclamation of national emergency is
or cancel the transfer of finances from Centre to in operation, the state is freed from the
the states. restrictions imposed by Article 19.
Such modification continues till the end of the In other words, the state can make any law or
financial year in which the Emergency ceases to can take any executive action abridging or
operate. taking away the six Fundamental Rights
guaranteed by Article 19.
Also, every such order of the President has to be
laid before both the Houses of Parliament. Any such law or executive action cannot be
challenged on the ground that they are
Effect on the Life of the Lok Sabha and State
inconsistent with the six Fundamental Rights
Assembly
guaranteed by Article 19.
While a proclamation of National Emergency is
When the National Emergency ceases to
in operation, the life of the Lok Sabha may be
operate, Article 19 automatically revives and
extended beyond its normal term (five years) by
comes into force.
a law of Parliament for one year at a time (for
any length of time). Any law made during Emergency, to the extent
of inconsistency with Article 19, ceases to have
However, this extension cannot continue
effect.
beyond a period of six months after the
emergency has ceased to operate. However, no remedy lies for anything done
during the Emergency even after the Emergency
For example, the term of the Fifth Lok Sabha
expires. This means that the legislative and
(1971–1977) was extended two times by one year
executive actions taken during the emergency
at a time.
cannot be challenged even after the Emergency
Similarly, the Parliament may extend the ceases to operate.
normal tenure of a state legislative assembly
The 44th Amendment Act of 1978 restricted the
(five years) by one year each time (for any
scope of Article 358 in two ways.
length of time) during a national emergency,
subject to a maximum period of six months after Firstly, the six Fundamental Rights under
the Emergency has ceased to operate. Article 19 can be suspended only when the
National Emergency is declared on the ground
Effect on the Fundamental Rights
of war or external aggression and not on the
Articles 358 and 359 describe the effect of a ground of armed rebellion.
National Emergency on the Fundamental Rights.
Secondly, only those laws which are related
Article 358 deals with the suspension of the with the Emergency are protected from being
Fundamental Rights guaranteed by Article 19, challenged and not other laws. Also, the
while Article 359 deals with the suspension of executive action taken only under such a law is
other Fundamental Rights (except those protected.
guaranteed by Articles 20 and 21).
Suspension of other Fundamental Rights
Suspension of Fundamental Rights under
Article 359 authorises the president to suspend
Article 19
the right to move any court for the enforcement
According to Article 358, when a proclamation of Fundamental Rights during a National
of national emergency is made, the six Emergency.
Fundamental Rights under Article 19 are
This means that under Article 359, the
automatically suspended.
Fundamental Rights as such are not suspended,
No separate order for their suspension is but only their enforcement.
required.
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The said rights are theoretically alive but the challenged and not other laws and the executive
right to seek remedy is suspended. action taken only under such a law, is protected.
The suspension of enforcement relates to only Declarations Made So Far
those Fundamental Rights that are specified in This type of Emergency has been proclaimed
the Presidential Order. three times so far – in 1962, 1971 and 1975.
Further, the suspension could be for the period The first proclamation of National Emergency
during the operation of emergency or for a was issued in October 1962 on account of
shorter period as mentioned in the order, and Chinese aggression in the NEFA (North-East
the suspension order may extend to the whole Frontier Agency–now Arunachal Pradesh), and
or any part of the country. was in force till January 1968. Hence, a fresh
proclamation was not needed at the time of war
It should be laid before each House of
against Pakistan in 1965.
Parliament for approval.
The second proclamation of national emergency
While a Presidential Order is in force, the State
was made in December 1971 in the wake of
can make any law or can take any executive
attack by Pakistan. Even when this Emergency
action abridging or taking away the specified
was in operation, a third proclamation of
Fundamental Rights.
National Emergency was made in June 1975.
Any such law or executive action cannot be
Both the second and third proclamations were
challenged on the ground that they are
revoked in March 1977.
inconsistent with the specified Fundamental
Rights. The first two proclamations (1962 and 1971)
were made on the ground of ‘external
When the Order ceases to operate, any law so
aggression’, while the third proclamation
made, to the extent of inconsistency with the
(1975) was made on the ground of ‘internal
specified Fundamental Rights, ceases to have
disturbance’, that is, certain persons have been
effect.
inciting the police and the armed forces against
But no remedy lies for anything done during the the discharge of their duties and their normal
operation of the order even after the order functioning.
ceases to operate.
The Emergency declared in 1975 (internal
This means that the legislative and executive emergency) proved to be the most
actions taken during the operation of the Order controversial.
cannot be challenged even after the Order
There was widespread criticism of the misuse of
expires.
Emergency powers.
The 44th Amendment Act of 1978 restricted the
In the elections held to the Lok Sabha in 1977
scope of Article 359 in two ways.
after the Emergency, the Congress Party led by
Firstly, the President cannot suspend the right Indira Gandhi lost and the Janta Party came to
to move the Court for the enforcement of power.
fundamental rights guaranteed by Articles 20 to
This government appointed the Shah
21.
Commission to investigate the circumstances
In other words, the right to protection in respect that warranted the declaration of an Emergency
of conviction for offences (Article 20) and the in 1975.
right to life and personal liberty (Article 21)
The commission did not justify the declaration
remain enforceable even during emergency.
of the Emergency. Hence, the 44th Amendment
Secondly, only those laws which are related Act was enacted in 1978 to introduce a number
with the emergency are protected from being of safeguards against the misuse of Emergency
provisions.
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President’s Rule reconstitution, provided the Rajya Sabha

Grounds of Imposition approves it in the meantime.
Article 355 imposes a duty on the Centre to If approved by both the Houses of Parliament,
ensure that the government of every state is the President’s Rule continues for six months. It
carried on in accordance with the provisions of can be extended for a maximum period of three
the Constitution. years with the approval of the Parliament, every
It is this duty in the performance of which the six months.
Centre takes over the government of a state However, if the dissolution of the Lok Sabha
under Article 356 in case of failure of takes place during the period of six months
constitutional machinery in state. without approving the further continuation of
This is popularly known as ‘President’s Rule’. the President’s Rule, then the proclamation
It is also known as ‘State Emergency’ or survives until 30 days from the first sitting of the
‘Constitutional Emergency’. Lok Sabha after its reconstitution, provided the
Rajya Sabha has in the meantime approved its
The President’s Rule can be proclaimed under continuance.
Article 356 on two grounds–one mentioned in
Article 356 itself and another in Article 365: Every resolution approving the proclamation of
President’s Rule or its continuation can be
• Article 356 empowers the President to issue passed by either House of Parliament only by a
a proclamation, if he is satisfied that a simple majority, that is, a majority of the
situation has arisen in which the members of that House present and voting.
government of a state cannot be carried on
in accordance with the provisions of the
Constitution. The 44th Amendment Act of 1978 introduced a
Notably, the president can act either on a new provision to put restraint on the power of
report of the governor of the state or Parliament to extend a proclamation of
otherwise too (i.e., even without the President’s Rule beyond one year.
governor’s report).
• Article 365 says that whenever a state fails Thus, it provided that, beyond one year, the
to comply with or to give effect to any President’s Rule can be extended by six months
direction from the Centre, it will be lawful at a time only when the following two
for the president to hold that a situation has conditions are fulfilled:
arisen in which the government of the state • a proclamation of National Emergency
cannot be carried on in accordance with the should be in operation in the whole of India,
provisions of the Constitution. or in the whole or any part of the state; and
Parliamentary Approval and Duration • the Election Commission must certify that
A proclamation imposing President’s Rule must the general elections to the legislative
be approved by both the Houses of Parliament assembly of the concerned state cannot be
within two months from the date of its issue. held on account of difficulties.

A proclamation of President’s Rule may be

However, if the proclamation of President’s Rule revoked by the President at any time by a
is issued at a time when the Lok Sabha has been subsequent proclamation. Such a proclamation
dissolved or the dissolution of the Lok Sabha does not require the parliamentary approval.
takes place during the period of two months
without approving the proclamation, then the
proclamation survives until 30 days from the
first sitting of the Lok Sabha after its

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Consequences of President’s Rule • the President can promulgate, when the

The President acquires the following Parliament is not in session, ordinances for
extraordinary powers when the President’s the governance of the state.
Rule is imposed in a state:
• He can take up the functions of the state
A law made by the Parliament or president or
government and powers vested in the
any other specified authority continues to be
governor or any other executive authority in
operative even after the President’s Rule.
the state.
• He can declare that the powers of the state This means that the period for which such a law
legislature are to be exercised by the remains in force is not coterminous with the
Parliament. duration of the proclamation. But it can be
• He can take all other necessary steps repealed or altered or re-enacted by the state
including the suspension of the legislature.
constitutional provisions relating to
President cannot assume to himself the powers
anybody or authority in the state.
vested in the concerned state high court or
Therefore, when the President’s Rule is imposed suspend the provisions of the Constitution
in a state, the President dismisses the state relating to it.
council of ministers headed by the chief
In other words, the constitutional position,
minister.
status, powers and functions of the concerned
The state governor, on behalf of the President, state high court remain same even during the
carries on the state administration with the help President’s Rule.
of the chief secretary of the state or the advisors
Use of Article 356
appointed by the President.
Since 1950, the President’s Rule has been
This is the reason why a proclamation under
imposed on more than 125 occasions, that is, on
Article 356 is popularly known as the
an average twice a year. Further, on a
imposition of ‘President’s Rule’ in a state.
number of occasions, the President’s Rule has
Further, the President either suspends or
been imposed in an arbitrary manner for
dissolves the state legislative assembly.
political or personal reasons.
The Parliament passes the state legislative bills
Hence, Article 356 has become one of the most
and the state budget.
controversial and most criticised provision of
When the state legislature is thus suspended or the Constitution.
dissolved:
For the first time, the President’s Rule was
• the Parliament can delegate the power to imposed in Punjab in 1951. By now, all most all
make laws for the state to the President or to the states have been brought under the
any other authority specified by him in this President’s Rule, once or twice or more.
regard,
President’ Rule has not been imposed in
• the Parliament or in case of delegation, the
Chhattisgarh and Telangana so far.
President or any other specified authority
can make laws conferring powers and When general elections were held to the Lok
imposing duties on the Centre or its officers Sabha in 1977 after the internal emergency, the
and authorities, ruling Congress Party lost and the Janta Party
• the President can authorise, when the Lok came to power.
Sabha is not in session, expenditure from the
The new government headed by Morarji Desai
state consolidated fund pending its sanction
imposed President’s Rule in nine states (where
by the Parliament, and
the Congress Party was in power) on the ground
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that the assemblies in those states no longer If at all they are brought into operation, I hope
represented the wishes of the electorate. the President who is endowed with this power
will take proper precautions before actually
Those nine States include Rajasthan, Uttar
suspending the administration of the province.”
Pradesh, Madhya Pradesh, Punjab, Bihar,
Himachal Pradesh, Orissa, West Bengal and However, the subsequent events show that
Haryana. what was hoped to be a ‘dead-letter’ of the
Constitution has turned to be a ‘deadly-weapon’
When the Congress Party returned to power in
against a number of state governments and
1980, it did the same in nine states on the same
legislative assemblies.
ground.
Scope of Judicial Review
Those nine states include Uttar Pradesh, Bihar,
Rajasthan, Madhya Pradesh, Punjab, Orissa, The 38th Amendment Act of 1975 made the
Gujarat, Maharashtra and Tamil Nadu. satisfaction of the President in invoking Article
356 final and conclusive which could not be
In 1992, President’s Rule was imposed in three
challenged in any court on any ground.
BJP-ruled states (Madhya Pradesh, Himachal
Pradesh and Rajasthan) by the Congress Party But this provision was subsequently deleted by
on the ground that they were not implementing the 44th Amendment Act of 1978 implying that
sincerely the ban imposed by the Centre on the satisfaction of the President is not beyond
religious organisations. judicial review.
In a landmark judgement in Bommai case Cases of Proper and Improper Use
(1994), the Supreme Court upheld the validity
Based on the report of the Sarkaria Commission
of this proclamation on the ground that
on Centre-state Relations (1988), the Supreme
secularism is a ‘basic feature’ of the
Court in Bommai case (1994) enlisted the
Constitution.
situations where the exercise of power under
Dr. B.R. Ambedkar, while replying to the critics Article 356 could be proper or improper.
of this provision in the Constituent Assembly,
Imposition of President’s Rule in a state would
hoped that the drastic power conferred by
be proper in the following situations:
Article 356 would remain a ‘deadletter’ and
would be used only as a measure of last resort. • Where after general elections to the
assembly, no party secures a majority, that
He observed:
is, ‘Hung Assembly’.
“The intervention of the Centre must be deemed • Where the party having a majority in the
to be barred, because that would be an invasion assembly declines to form a ministry and the
on the sovereign authority of the province governor cannot find a coalition ministry
(state). commanding a majority in the assembly.
• Where a ministry resigns after its defeat in
That is a fundamental proposition which we
the assembly and no other party is willing or
must accept by reason of the fact that we have a
able to form a ministry commanding a
Federal Constitution.
majority in the assembly.
That being so, if the Centre is to interfere in the • Where a constitutional direction of the
administration of provincial affairs, it must be Central government is disregarded by the
under some obligation which the Constitution state government.
imposes upon the Centre. • Internal subversion where, for example, a
The proper thing we ought to expect is that such government is deliberately acting against
Articles will never be called into operation and the Constitution and the law or is fomenting
that they would remain a deadletter. a violent revolt.
• Physical breakdown where the government
wilfully refuses to discharge its
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constitutional obligations endangering the But this provision was subsequently deleted by
security of the state. the 44th Amendment Act of 1978 implying that
the satisfaction of the president is not beyond
The imposition of President’s Rule in a state
judicial review.
would be improper under the following
situations: Parliamentary Approval and Duration
A proclamation declaring financial emergency
• Where a ministry resigns or is dismissed on
must be approved by both the Houses of
losing majority support in the assembly and
Parliament within two months from the date of
the governor recommends imposition of
its issue.
President’s Rule without probing the
possibility of forming an alternative However, if the proclamation of Financial
ministry. Emergency is issued at a time when the Lok
• Where the governor makes his own Sabha has been dissolved or the dissolution of
assessment of the support of a ministry in the Lok Sabha takes place during the period of
the assembly and recommends imposition of two months without approving the
President’s Rule without allowing the proclamation, then the proclamation survives
ministry to prove its majority on the floor of until 30 days from the first sitting of the Lok
the Assembly. Sabha after its reconstitution, provided the
• Where the ruling party enjoying majority Rajya Sabha has in the meantime approved it.
support in the assembly has suffered a Once approved by both the Houses of
massive defeat in the general elections to the Parliament, the Financial Emergency continues
Lok Sabha such as in 1977 and 1980. indefinitely till it is revoked. This implies two
• Internal disturbances not amounting to things:
internal subversion or physical breakdown.
• Mal-administration in the state or • there is no maximum period prescribed for
allegations of corruption against the its operation; and
ministry or stringent financial exigencies of • repeated parliamentary approval is not
the state. required for its continuation.
• Where the state government is not given
A resolution approving the proclamation of
prior warning to rectify itself except in case
financial emergency can be passed by either
of extreme urgency leading to disastrous
House of Parliament only by a simple majority,
consequences.
that is, a majority of the members of that house
• Where the power is used to sort out present and voting.
intraparty problems of the ruling party, or
for a purpose extraneous or irrelevant to the A proclamation of Financial Emergency may be
one for which it has been conferred by the revoked by the president at anytime by a
Constitution. subsequent proclamation. Such a proclamation
does not require the parliamentary approval.
Financial Emergency
Effects of Financial Emergency
Grounds of Declaration
The consequences of the proclamation of a
Article 360 empowers the president to proclaim
Financial Emergency are as follows:
a Financial Emergency if he is satisfied that a
situation has arisen due to which the financial • The executive authority of the Centre
stability or credit of India or any part of its extends to the giving of
territory is threatened. o directions to any state to observe such
The 38th Amendment Act of 1975 made the canons of financial propriety as may be
satisfaction of the president in declaring a specified in the directions; and
Financial Emergency final and conclusive and o such other directions to any state as the
not questionable in any court on any ground. President may deem necessary and
adequate for the purpose.
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United States passed in 1933, which gave the

• Any such direction may include a provision president power to make similar provisions in
requiring order to remove the difficulties, both
o the reduction of salaries and allowances economical and financial, that had overtaken
of all or any class of persons serving in the American people, as a result of the Great
the state; and Depression.”
o the reservation of all money bills or other
No Financial Emergency has been declared so far,
financial bills for the consideration of the
though there was a financial crisis in 1991.
President after they are passed by the
legislature of the state. Criticism of the Emergency Provisions
Some members of the Constituent Assembly
• The President may issue directions for the criticised the incorporation of emergency
reduction of salaries and allowances of provisions in the Constitution on the following
o all or any class of persons serving the grounds:
Union; and
o the judges of the Supreme Court and the • The federal character of the Constitution will
high court. be destroyed and the Union will become all
powerful.
Thus, during the operation of a financial • The powers of the State–both the Union and
emergency, the Centre acquires full control over the units–will entirely be concentrated in
the states in financial matters. the hands of the Union executive.
H.N. Kunzru, a member of the Constituent • The President will become a dictator.
Assembly, stated that the financial emergency • The financial autonomy of the state will be
provisions pose a serious threat to the financial nullified.
autonomy of the states. • Fundamental rights will become
meaningless and, as a result, the democratic
Explaining the reasons for their inclusion in the foundations of the Constitution will be
Constitution, Dr. B.R. Ambedkar observed in the destroyed.
Constituent Assembly:
“This Article more or less follows the pattern of
what is called the National Recovery Act of the
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Chapter 17 – Election and Representation (NCERT)

Elections and Democracy Election system in India

• Democracy is one where citizens take part in In a democratic election, people vote and their
decision making. preference decides who will win the contest.
• Direct democracy is one where the citizens
But there can be very different ways in which
directly participate in the day-to-day
people make their choices and very different
decision making and in the running of the
ways in which their preferences can be counted.
government. The ancient city-states in
These are:
Greece were considered examples of direct
democracy. The First Past the Post (FPTP) system
• Many would consider local governments, Under this system:
especially gram sabhas, to be the closest
examples of direct democracy. But this kind o The entire country is divided into 543
of direct democracy cannot be practiced constituencies;
when a decision has to be taken by lakhs and o Each constituency elects one
crores of people. That is why rule by the representative; and
people usually means rule by people’s o The candidate who secures the highest
representatives. number of votes in that constituency is
• In such an arrangement, citizens choose declared elected.
their representatives who, in turn, are
actively involved in governing and • In this system whoever has more votes than
administering the country. The method all other candidates, is declared elected.
followed to choose these representatives is • The winning candidate need not secure a
referred to as an election. majority of the votes.
• The citizens have a limited role in taking • In the electoral race, the candidate who is
major decisions and in running the ahead of others, who crosses the winning
administration. They are involved only post first of all, is the winner.
indirectly, through their elected • This method is also called the Plurality
representatives. In this arrangement, where System.
all major decisions are taken by elected • This is the method of election prescribed by
representatives, the method by which the Constitution.
people elect their representatives becomes Proportional Representation
very important.
Under this:
• Not all elections are democratic. A large
number of non-democratic countries also o Each party is allotted the share of seats in
hold elections. the parliament in proportion to its share
• The constitution of a democratic country of votes.
lays down some basic rules about elections. o Each party fills its quota of seats by
These basic rules are usually about picking those many of its nominees from
o Who is eligible to vote? a preference list that has been declared
o Who is eligible to contest? before the elections
o Who is to supervise elections? o In this system a party gets the same
o How do the voters choose their proportion of seats as its proportion of
representatives? votes.
o How are the votes to be counted and
representatives elected? • In the PR system there could be two
variations.
The first three questions are about ensuring that
• In some countries, like Israel or Netherlands,
elections are free and fair and can thus be called
the entire country is treated as one
democratic. The last two questions are about
constituency and seats are allocated to each
ensuring a fair representation.

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party according to its share of votes in the • In FPTP, voters have a clear choice at the
national election. time of elections. Voters have to simply
• The other method is when the country is endorse a candidate or a party while voting.
divided into several multi-member This system offers voters a choice not simply
constituencies as in Argentina and Portugal. between parties but specific candidates
Each party prepares a list of candidates for while in PR System, voters are often asked to
each constituency, depending on how many choose a party and the representatives are
have to be elected from that constituency. elected on the basis of party lists.
• In both these variations, voters exercise • In FPTP the voters know their own
their preference for a party and not a representative is and can hold him or her
candidate. accountable.
• The seats in a constituency are distributed • This system makes it possible for
on the basis of votes polled by a party. Thus, parliamentary government to function
representatives from a constituency, would smoothly and effectively by facilitating the
and do belong to different parties. formation of a stable government.
• In India, we have adopted PR system on a • The FPTP system encourages voters from
limited scale for indirect elections. different social groups to come together to
• The Constitution prescribes a third and win an election in a locality.
complex variation of the PR system for the • This system has proved to be simple and
election of President, Vice President, and for familiar to ordinary voters. It has helped
the election to the Rajya Sabha and Vidhan larger parties to win clear majorities at the
Parishads. centre and the State level.
• The system has also discouraged political
Comparison of FPTP and PR system of
parties that get all their votes only from one
election caste or community.
FPTP PR
The country is divided Large geographical Normally, the working of the FPTP system
into small geographical areas are demarcated results in a two-party system. This means that
units called as constituencies. The there are two major competitors for power and
constituencies or entire country may be a power is often shared by these two parties
districts. single constituency. alternately. It is difficult for new parties or the
Every constituency More than one third party to enter the competition and share
elects one representative may be power.
representative. elected from one
constituency. In this respect, the experience of FPTP in India
Voter votes for a Voter votes for the is slightly different. After independence, though
candidate. party. we adopted the FPTP system, there emerged a
A party may get more Every party gets seats one-party dominance and along with it, there
seats than votes in the in the legislature in existed many smaller parties.
legislature. proportion to the
percentage of votes Reservation of constituencies
that it gets.
• In this system, all voters in a constituency
Candidate who wins the Candidate who wins
election may not get the elections gets are eligible to vote but the candidates must
election may not get majority of votes. belong to only a particular community or
majority (50% + 1) social section for which the seat is reserved.
votes. • The Constitution provides for reservation of
Examples: U.K., India Examples: Israel, seats in the Lok Sabha and State Legislative
Netherlands Assemblies for the Scheduled Castes and
Scheduled Tribes.
• This provision was made initially for a
Why did India adopt the FPTP system?
period of 10 years and as a result of
• The entire election system is extremely successive constitutional amendments, has
simple to understand even for common been extended up to 2030. The Parliament
voters who may have no specialised can take a decision to further extend it, when
knowledge about politics and elections. the period of reservation expires.
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• The number of seats reserved for both of Universal franchise and right to contest
these groups is in proportion to their share Who are the voters?
in the population of India.
• Today, of the 543 elected seats in the Lok • The democratic elections require that all
Sabha, 84 are reserved for Scheduled Castes adult citizens of the country must be eligible
and 47 are reserved for Scheduled Tribes. to vote in the elections. This is known as
universal adult franchise.
Who decides which constituency is to be • One of the important decisions of the
reserved? framers of the Indian Constitution was to
• This decision is taken by an independent guarantee every adult citizen in India, the
body called the Delimitation Commission right to vote.
• The Delimitation Commission is appointed • Till 1989, an adult Indian meant an Indian
by the President of India and works in citizen above the age of 21. An amendment
collaboration with the Election Commission to the Constitution in 1989, reduced the
of India. eligibility age to 18. Adult franchise ensures
• It is appointed for the purpose of drawing up that all citizens are able to participate in the
the boundaries of constituencies all over the process of selecting their representative.
country. Who can contest elections?
• A quota of constituencies to be reserved in
each State is fixed depending on the • All citizens have the right to stand for
proportion of SC or ST in that state. election and become the representative of
• After drawing the boundaries, the the people
Delimitation Commission looks at the • However, there are different minimum age
composition of population in each requirements for contesting elections. For
constituency. example, in order to stand for Lok Sabha or
• Those constituencies that have the highest Assembly election, a candidate must be at
proportion of Scheduled Tribe population least 25 years old.
are reserved for ST. • There are some other restrictions also. For
• In the case of Scheduled Castes, the instance, there is a legal provision that a
Delimitation Commission looks at two person who has undergone imprisonment
things. It picks constituencies that have for two or more years for some offence is
higher proportion of Scheduled Caste disqualified from contesting elections.
population. But it also spreads these • But there are no restrictions of income,
constituencies in different regions of the education or class or gender on the right to
State. This is done because the Scheduled contest elections. In this sense, our system of
Caste population is generally spread evenly election is open to all citizens.
throughout the country.
Independent Election Commission
• These reserved constituencies can be
rotated each time the Delimitation exercise • To ensure the free and fair election system
is undertaken. and process, an independent body was
created named as Election Commission.
• Reservation of seats for women has been
provided for in rural and urban local bodies. • Article 324 of the Indian Constitution
provides for an independent Election
Free and Fair elections Commission for the ‘superintendence,
• The true test of any election system is its direction and control of the electoral roll and
ability to ensure a free and fair electoral the conduct of elections’ in India.
process.
• It is important for a democracy that the
election system is impartial and transparent.
• The system of election must also allow the
aspirations of the voter to find legitimate
expression through the electoral results.

Source: NCERT
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• To assist the Election Commission of India or existence of names of those non-eligible

there is a Chief Electoral Officer in every or non-existent.
state • It also determines the timing of elections and
• The Election Commission is not responsible prepares the election schedule. The election
for the conduct of local body elections. schedule includes the notification of
• The Election Commission of India can either elections, date from which nominations can
be a single member or a multi-member body. be filed, last date for filing nominations, last
Till 1989, the Election Commission was date of scrutiny, last date of withdrawal, date
single member. Just before the 1989 general of polling and date of counting and
elections, two Election Commissioners were declaration of results.
appointed, making the body multi-member. • During this entire process, the Election
Soon after the elections, the Commission Commission has the power to take decisions
reverted to its single member status. In to ensure a free and fair poll. It can postpone
1993, two Election Commissioners were or cancel the election in the entire country or
once again appointed and the Commission a specific State or constituency on the
became multi-member and has remained grounds that the atmosphere is vitiated and
multi-member since then. therefore, a free and fair election may not be
• Initially there were many apprehensions possible. The Commission also implements a
about a multi-member Commission. There model code of conduct for parties and
was a sharp difference of opinion between candidates. It can order a re-poll in a specific
the then Chief Election Commissioner and constituency. It can also order a recount of
the other Commissioners about who had votes when it feels that the counting process
how much power. The matter had to be has not been fully fair and just.
settled by the Supreme Court. • The Election Commission accords
• The Chief Election Commissioner (CEC) recognition to political parties and allots
presides over the Election Commission, but symbols to each of them.
does not have more powers than the other
Over the years, the Election Commission of India
Election Commissioners.
has emerged as an independent authority which
• The CEC and the two Election has asserted its powers to ensure fairness in the
Commissioners have equal powers to take election process.
all decisions relating to elections as a
collective body. It has acted in an impartial and unbiased
• They are appointed by the President of India manner in order to protect the sanctity of the
on the advice of the Council of Ministers. electoral process.
• The Constitution ensures the security of the
It is widely agreed that the Election Commission
tenure of the CEC and Election
is more independent and assertive now than it
Commissioners. They are appointed for a
was till twenty years ago.
six-year term or continue till the age of 65,
whichever is earlier. Electoral Reforms
• The CEC can be removed before the expiry of The Election Commission, political parties,
the term, by the President if both Houses of various independent groups, and many scholars
Parliament make such a recommendation have come up with proposals for electoral
with a special majority. This is done to reform, they are:
ensure that a ruling party cannot remove a
CEC who refuses to favour it in elections. • Our system of elections should be changed
• The Election Commissioners can be from the FPTP to some variant of the PR
removed by the President of India. system. This would ensure that parties get
seats, as far as possible, in proportion to the
Functions of Election Commission of India votes they get.
• It supervises the preparation of up-to-date • There should be a special provision to
voters’ list. It makes every effort to ensure ensure that at least one-third women are
that the voters’ list is free of errors like elected to the parliament and assemblies.
nonexistence of names of registered voters • There should be stricter provisions to
control the role of money in electoral
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politics. The elections expenses should be • Our election system has allowed the voters
paid by the government out of a special fund. not only to freely choose representatives,
• Candidates with any criminal case should be but also to change governments peacefully
barred from contesting elections, even if both at the State and national level.
their appeal is pending before a court. • Secondly, voters have consistently taken a
• There should be complete ban on the use of keen interest in the election process and
caste and religious appeals in the campaign. participated in it. The number of candidates
• There should be a law to regulate the and parties that contest elections is on the
functioning of political parties and to ensure rise.
that they function in a transparent and • Thirdly, the system of election has proved to
democratic manner be accommodative and inclusive. The social
composition of our representatives has
Apart from legal reforms, there are two other
changed gradually. Now our representatives
ways of ensuring that elections reflect the
come from many different social sections,
expectations and democratic aspirations of the though the number of women legislators has
people.
not increased satisfactorily.
• One is, that people themselves have to be • Fourthly, the election outcome in most parts
more vigilant, more actively involved in of the country does not reflect electoral
political activities. But there are limits to the malpractices and rigging. Of course, many
extent to which ordinary people can engage attempts at rigging do take place. You must
in politics on a regular basis. have read about violence, about complaints
• It is necessary that various political that voters’ names disappear from the
institutions and voluntary organisations are voters’ list, about intimidation, and so on.
developed and are active in functioning as Yet, such instances rarely directly affect the
watchdog for ensuring free and fair outcome of the election.
elections. • Finally and most importantly, elections have
become a part and parcel of our democratic
Conclusion life. No one can imagine a situation where a
• In countries where representative government would disrespect the verdict of
democracy is practiced, elections and the an election. Similarly, no one can imagine
representative character of those elections that a government would be formed without
are crucial factors in making democracy holding elections.
effective and trustworthy. The success of • In fact, regularity and periodicity of elections
India’s election system can be gauged from a has earned fame for India as a great
number of factors. democratic experiment.

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Chapter 18 – Executive (NCERT)

What is an Executive? • Italy has a parliamentary system with the

• The word executive means a body of persons president as the formal head of state and the
that looks after the implementation of rules prime minister as the head of government.
and regulations in actual practice. • Russia has a semi-presidential system where
• In the case of government also, one body president is the head of state and prime
may take policy decisions and decide about minister, who is appointed by the president,
rules and regulations, while the other one is the head of government.
would be in charge of implementing those • Germany has a parliamentary system in
rules. The organ of government that which president is the ceremonial head of
primarily looks after the function of state and the chancellor is the head of
implementation and administration is called government.
the executive. Presidential system
Functions of the executive • In this system, the president is the Head of
• Executive is the branch of government state as well as head of government.
responsible for the implementation of laws • In this system, the office of president is very
and policies adopted by the legislature. powerful, both in theory and practice.
• The executive is often involved in framing of • Countries with such a system include the
policy. United States, Brazil and most nations in
• The executive branch is not just about Latin America.
presidents, prime ministers and ministers. It Semi-presidential system
also extends to the administrative
• In this system, both president and prime
machinery (civil servants).
minister may possess significant day-to-day
• While the heads of government and their
powers.
ministers, saddled with the overall
• In this system, it is possible that sometimes
responsibility of government policy, are
the president and the prime minister may
together known as the political executive,
belong to the same party and at times they
those responsible for day to day
may belong to two different parties and thus,
administration are called the permanent
would be opposed to each other.
executive.
• Countries with such a system include
What are the different types of France, Russia, Sri Lanka, etc.
Executive? Parliamentary system
• The USA has a presidential system and • In this system, the prime minister is the head
executive powers are in the hands of the of government.
president. • Most parliamentary systems have a
• Canada has a parliamentary democracy with president or a monarch who is the nominal
a constitutional monarchy where Queen Head of state.
Elizabeth II is the formal chief of state and • In such a system, the role of president or
the prime minister is the head of monarch is primarily ceremonial and prime
government. minister along with the cabinet wields
• In France, both the president and the prime effective power.
minister are a part of the semi-presidential • Countries with such system include
system. The president appoints the prime Germany, Italy, Japan, United Kingdom as
minister as well as the ministers but cannot well as Portugal.
dismiss them as they are responsible to the
parliament.
• Japan has a parliamentary system with the
Emperor as the head of the state and the
prime minister as the head of government.
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Power and position of President

Source: NCERT

• The President has wide ranging executive,

legislative, judicial and emergency powers.
• In a parliamentary system, these powers are
in reality used by the President only on the
advice of the Council of Ministers.
• The Prime Minister and the Council of
Source: NCERT Ministers have support of the majority in the
Parliamentary Executive in India Lok Sabha and they are the real executive.
• In most of the cases, the President has to
• According to this system, there is a President
follow the advice of the Council of Ministers.
who is the formal Head of the state of India
and the Prime Minister and the Council of Discretionary Powers of the President
Ministers, which run the government at the
national level. There are three situations where the President
can exercise the powers using his or her own
• At the State level, the executive comprises
discretion:
the Governor and the Chief Minister and
Council of Ministers. • The President can send back the advice
• The Constitution of India vests the executive given by the Council of Ministers and ask the
power of the Union formally in the Council to reconsider the decision.
President. In reality, the President exercises
these powers through the Council of In doing this, the President acts on his (or
Ministers headed by the Prime Minister. her) own discretion. When the President
• The President is elected for a period of five thinks that the advice has certain flaws or
years. But there is no direct election by the legal lacunae, or that it is not in the best
people for the office of President. interests of the country, the President can
• The President is elected indirectly. This ask the Council to reconsider the decision.
means that the president is elected not by
the ordinary citizens but by the elected Although, the Council can still send back the
MLAs and MPs. This election takes place in same advice and the President would then
accordance with the principle of be bound by that advice, such a request by
proportional representation with single the President to reconsider the decision,
transferable vote. would naturally carry a lot of weight.
• The President can be removed from office
only by Parliament by following the So, this is one way in which the president can
procedure for impeachment. The only act in his own discretion.
ground for impeachment is violation of the
Constitution. • The President also has veto power by which
he can withhold or refuse to give assent to
Bills (other than Money Bill) passed by the
Parliament.

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Every bill passed by the Parliament goes to governments or to grant a request for
the President for his assent before it dissolution of Lok Sabha by a Prime Minister
becomes a law. who could not prove majority in the House.
It may thus be said that presidential discretion
The President can send the bill back to the
is related to political conditions. There is greater
Parliament asking it to reconsider the bill.
scope for presidential assertiveness when
governments are not stable and coalitions
This ‘veto’ power is limited because, if the
occupy power.
Parliament passes the same bill again and
sends it back to the President, then, the When no party has a clear majority, the
President has to give assent to that bill. President has the additional responsibility of
making a choice and appointing the Prime
However, there is no mention in the Minister to run the government of the country.
Constitution about the time limit within
which the President must send the bill back The Vice President of India
for reconsideration. This means that the • The Vice President is elected for five years.
President can just keep the bill pending with • His election method is similar to that of the
him without any time limit. President, the only difference is that
members of State legislatures are not part of
This gives the President an informal power the electoral college.
to use the veto in a very effective manner. • The Vice President may be removed from his
This is sometimes referred to as ‘pocket office by a resolution of the Rajya Sabha
veto’. passed by a majority and agreed to by the
Lok Sabha.
• The third kind of discretion arises more out • The Vice President acts as the ex-officio
of political circumstances. Chairman of the Rajya Sabha and takes over
the office of the President when there is a
Formally, the President appoints the Prime vacancy by reasons of death, resignation,
Minister. removal by impeachment or otherwise.
• The Vice President acts as the President only
Normally, in the parliamentary system, a until a new President is elected.
leader who has the support of the majority • B. D. Jatti acted as President on the death of
in the Lok Sabha would be appointed as Fakhruddin Ali Ahmed until a new President
Prime Minister and the question of was elected.
discretion would not arise.
Prime Minister and Council of Ministers
But in a situation when after an election, no • The President exercises his powers only on
leader has a clear majority in the Lok Sabha. the advice of the Council of Ministers.
After attempts to forge alliances, two or • The Council of Ministers is headed by the
three leaders are claiming that they have the Prime Minister. Therefore, as head of the
support of the majority in the house. Council of Ministers, the Prime Minister
becomes the most important functionary of
Now, the President has to decide whom to the government in our country.
appoint as the Prime Minister. • In the parliamentary form of executive, it is
essential that the Prime Minister has the
In such a situation, the President has to use support of the majority in the Lok Sabha.
his own discretion in judging who really may This support by the majority also makes the
have the support of the majority or who can Prime Minister very powerful. The moment
actually form and run the government. this support of the majority is lost, the Prime
Minister loses the office.
When there is no single party or coalition • When no party had majority in the Lok
attained a majority in the Lok Sabha. Sabha, various political parties have come
These situations demanded presidential together and formed a coalition that has
intervention either in order to constitute majority in the House. In such situations, a
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leader who is acceptable to most partners of the demise, dismissal or resignation of a

the coalition becomes the Prime Minister. minister only creates a ministerial vacancy.
Formally, a leader who has the support of • The Prime Minister acts as a link between
the majority is appointed by the President as the Council of Ministers on the one hand and
Prime Minister. the President as well as the Parliament on
• The Prime Minister then decides who will be the other. It is this role of the Prime Minister
the ministers in the Council of Ministers. which led Pt. Nehru to describe him as ‘the
• The Prime Minister allocates ranks and linchpin of Government’
portfolios to the ministers. Depending upon • It is also the constitutional obligation of the
the seniority and political importance, the Prime Minister to communicate to the
ministers are given the ranks of cabinet President all decisions of the Council of
minister, minister of State or deputy Ministers relating to the administration of
minister. the affairs of the Union and proposals for
• In the same manner, Chief Ministers of the legislation.
States choose ministers from their own • The Prime Minister is involved in all crucial
party or coalition. decisions of the government and decides on
• The Prime Minister and all the ministers the policies of the government.
have to be members of the Parliament. If
Thus, the power wielded by the Prime Minister
someone becomes a minister or Prime
flows from various sources: control over the
Minister without being an MP, such a person
Council of Ministers, leadership of the Lok
has to get elected to the Parliament within
Sabha, command over the bureaucratic
six months.
machine, access to media, projection of
• The most important feature of
personalities during elections, projection as
parliamentary executive is that the
national leader during international summitry
executive is routinely under the control and
as well as foreign visits.
supervision of the legislature.
• The Council of Ministers is collectively At the State level, a similar parliamentary
responsible to the Lok Sabha. This provision executive exists, though with some variations.
means that a Ministry which loses The most important variation is that there is a
confidence of the Lok Sabha is obliged to Governor of the State appointed by the
resign. President (on the advice of the central
• The principle indicates that the ministry is government).
an executive committee of the Parliament
Though the Chief Minister, like the Prime
and it collectively governs on behalf of the
Minister is the leader of the majority party in the
Parliament.
Assembly, the Governor has more discretionary
• Collective responsibility is based on the
powers. However, the main principles of
principle of the solidarity of the cabinet. It
parliamentary system operate at the State level
implies that a vote of no confidence even
too.
against a single minister leads to the
resignation of the entire Council of Permanent Executive: Bureaucracy
Ministers. • The Executive organ of the government
• It also indicates that if a minister does not includes the Prime Minister, the ministers
agree with a policy or decision of the cabinet, and a large organisation called the
he or she must either accept the decision or bureaucracy or the administrative
resign. It is binding on all ministers to machinery.
pursue or agree to a policy for which there is • Trained and skilled officers who work as
collective responsibility. permanent employees of the government
• In India, the Prime Minister enjoys a pre- are assigned the task of assisting the
eminent place in the government. The ministers in formulating policies and
Council of Ministers cannot exist without the implementing these policies.
Prime Minister. • In a democracy, the elected representatives
• The death or resignation of the Prime and the ministers are in charge of
Minister automatically brings about the government and the administration is under
dissolution of the Council of Ministers but their control and supervision.
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• Persons selected by the UPSC for Indian

• In the parliamentary system, the legislature Administrative Service and Indian Police
also exercises control over the Service constitute the backbone of the
administration. higher-level bureaucracy in the States.
• The administrative officers cannot act in • The collector of a district is the most
violation of the policies adopted by the important officer of the government at the
legislature. It is the responsibility of the district level. He is normally an IAS officer
ministers to retain political control over the and is governed by the service conditions
administration. laid down by the central government.
• The bureaucracy is also expected to be • An IAS or IPS officer is assigned to a
politically neutral. This means that the particular State, where he or she works
bureaucracy will not take any political under the supervision of the State
position on policy matters. government.
• In a democracy, it is always possible that a • However, the IAS or IPS officers are
party is defeated in elections and the new appointed by the central government, they
government wants to opt for new policies in can go back into the service of the central
the place of policies of the previous government and most importantly, only the
government. In such a situation, it is the central government can take disciplinary
responsibility of the administrative action against them. This means that the key
machinery to faithfully and efficiently administrative officers of the States are
participate in drafting the policy and in its under the supervision and control of the
implementation. central government.
• Apart from the IAS and the IPS officers
The Indian bureaucracy consists of the All-India appointed by the UPSC, the administration of
services, State services, employees of the local the State is looked after by officers
governments, and technical and managerial appointed through the State Public Service
staff running public sector undertakings. Commissions.
• The Union Public Service Commission has • The bureaucracy is an instrument through
been entrusted with the task of conducting which welfare policies of the government
the process of recruitment of the civil must reach the people. But most often, it is
servants for the government of India. Similar so powerful that people are afraid of
public service commissions are provided for approaching a government officer.
the States also. • It is a common experience of the people that
• Members of the Public Service Commissions bureaucracy is insensitive to the demands
are appointed for a fixed term. and expectations of the ordinary citizen.
• Their removal or suspension is subject to a Only if the democratically elected
thorough enquiry made by a judge of the government controls the bureaucracy, some
Supreme Court. of these problems can be effectively handled.
• The Constitution also ensures that all • Too much political interference turns the
sections of the society including the weaker bureaucracy into an instrument in the hands
sections have an opportunity to be part of of the politician. Though the Constitution
the public bureaucracy. For this purpose, the has created independent machinery for
Constitution has provided for reservation of recruitment, many people think that there is
jobs for the Dalits and Adivasis. no provision for protecting the civil servants
Subsequently, reservations have also been from political interference in the
provided for women and other backward performance of their duties.
classes. These provisions ensure that the • Enough provisions are not there to ensure
bureaucracy would be more representative the accountability of the bureaucracy to the
and social inequalities will not come in the citizen. It is expected that measures like the
way of recruitment to the civil service. Right to Information may make the
bureaucracy a little more responsive and
accountable.

Source: NCERT
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Conclusion under regular supervision and control. Thus, a

The modern executive is a very powerful parliamentary executive was chosen.
institution of government. The executive enjoys Periodic elections, constitutional limits over the
greater powers compared to other organs of the exercise of powers and democratic politics have
government. This generates a greater need to ensured that executive organ cannot become
have democratic control over the executive. unresponsive.
The makers of our Constitution thought with
foresight that the executive must be put firmly
********

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Chapter 19 – President

Articles 52 to 78 in Part V of the Constitution The Constitution provides that there shall be
deal with the Union executive. uniformity in the scale of representation of
different states as well as parity between the
The Union executive consists of the President,
states as a whole and the Union at the election
the Vice-President, the Prime Minister, the
of the President.
council of ministers and the attorney general of
India. To achieve this, the number of votes which each
elected member of the legislative assembly of
The President is the head of the Indian State. He
each state and the Parliament is entitled to cast
is the first citizen of India and acts as the symbol
at such election shall be determined in the
of unity, integrity and solidarity of the nation.
following manner:
• Every elected member of the legislative
assembly of a state shall have as many votes
as there are multiples of one thousand in the
Election of the President quotient obtained by dividing the population
The President is elected not directly by the of the state by the total number of the
people but by members of electoral college elected members of the assembly.
consisting of:
• the elected members of both the Houses of
Parliament;
• the elected members of the legislative
assemblies of the states; and
• the elected members of the legislative
assemblies of the Union Territories of Delhi
and Puducherry Value of vote of an MLA
Total population of the State 1
= ×
Total number of elected members 1000
in the State Legislative Assembly

Who all does not participate in the election

of President?
• nominated members of both of Houses of
Parliament;
• nominated members of the state legislative
assemblies;
• members (both elected and nominated) of
the state legislative councils (in case of the
bicameral legislature) and
• nominated members of the Legislative
Assemblies of Delhi and Puducherry
Where an assembly is dissolved, the members
cease to be qualified to vote in presidential
election, even if fresh elections to the dissolved
assembly are not held before the presidential
election.

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Total Value of votes for the State = 131 X 224 =

12. KARNATAKA 224 29299014 131
Value of vote of each MLA 29344
× Total number of elected MLAs
152 X 140 =
13. KERALA 140 21347375 152
21280

MADHYA 131 X 230 =

14. 230 30016625 131
PRADESH 30130

MAHARASH 175 X 288 =

15. 288 50412235 175
TRA 50400

018 X 060 =
16. MANIPUR 60 1072753 18
1080

017 X 060 =
NUMB 17. MEGHALAYA 60 1011699 17
VALUE 1020
ER OF
OF TOTAL
ASSE POPULATI
S. NAME OF VOTE VALUE OF
MBLY ON 1971 008 X 040
No. STATE OF VOTES FOR 18. MIZORAM 40 332390 8
SEATS CENSUS) = 320
EACH THE STATE
(ELEC
M.L.A.
TIVE) 009 X 060 =
(1) (2) (3) (4) (5) (6) 19. NAGALAND 60 516449 9
540
ANDHRA 159 X 175 =
1. 175 27800586 159 149 X 147 =
PRADESH 27825 20. ODISHA 147 21944615 149
21903
ARUNACHAL 008 X 060
2. 60 467511 8 116 X 117 =
PRADESH = 480 21. PUNJAB 117 13551060 116
13572
116 X 126 =
3. ASSAM 126 14625152 116 129 X 200 =
14616 22. RAJASTHAN 200 25765806 129
25800
173 X 243 =
4. BIHAR 243 42126236 173 007 X 032 =
42039 23. SIKKIM 32 209843 7
224
CHHATTISG 129 X 090 =
5. 90 11637494 129 TAMIL 176 X 234 =
ARH 11610 24. 234 41199168 176
NADU 41184
020 X 040
6. GOA 40 795120 20 132 X 119 =
= 800 25. TELANGANA 119 15702122 132
15708
147 X 182 =
7. GUJARAT 182 26697475 147 026 X 060 =
26754 26. TRIPURA 60 1556342 26
1560
112 X 090 =
8. HARYANA 90 10036808 112 UTTARAKHA 064 X 070 =
10080 27. 70 4491239 64
ND 4480
HIMACHAL 051 X 068 =
9. 68 3460434 51 UTTAR 208 X 403 =
PRADESH 3468 28. 403 83849905 208
PRADESH 83824
JAMMU & 072 X 087 =
10. 87 6300000 72 WEST 151 X 294 =
KASHMIR 6264 29. 294 44312011 151
BENGAL 44394
176 X 081 =
11. JHARKHAND 81 14227133 176
14256

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The President’s election is held in accordance

NCT OF 058 X 070 =
30. 70 4065698 58 with the system of proportional representation
DELHI 4060
by means of the single transferable vote and the
PUDUCHERR 016 X 030 voting is by secret ballot.
31. 30 471707 16
Y = 480
This system ensures that the successful
TOTAL candidate is returned by the absolute majority
of votes.
A candidate, in order to be declared elected to
the office of President, must secure a fixed quota
of votes.
The quota of votes is determined by dividing the
total number of valid votes polled by the
Every elected member of either House of number of candidates to be elected (here only
Parliament shall have such number of votes as one candidate is to be elected as President) plus
may be obtained by dividing the total number of one and adding one to the quotient.
votes assigned to members of the legislative
assemblies of the states by the total number of Electoral Quota
the elected members of both the Houses of Total number of valid votes polled
= +1
Parliament. 1 + 1 = (2)

Value of vote of an MP Each member of the electoral college is given

Total value of votes of all MLAs of all States only one ballot paper.
=
Total number of elected members
of Parliament About Ballot Papers
The Election Commission has directed that
the ballot papers should be printed in 2 (two)
colours- in green for use by Members of
Parliament and in pink for use by the
Members of the State Legislative
Assemblies.
The ballot papers are printed with two
columns-first column containing the names
of the candidates and the second column for
marking preferences by the elector for each
such candidate.
Total value of votes of 776 MPs =
The ballot papers are printed in Hindi and
English for use by MPs and in the official
language(s) of the State and in English for
Total Electors for the Presidential Election = use by the MLAs of the State concerned.

The voter, while casting his vote, is required to

indicate his preferences by marking 1, 2, 3, 4,
Total value of votes for Presidential Election = etc. against the names of candidates.
This means that the voter can indicate as many
preferences as there are candidates in the fray.

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Proportional Representation with Single petition presented to the Supreme Court after
Transferable Vote the election is over.
Such election petition should be presented by a
candidate or twenty or more electors joined
together as petitioners, and may be presented at
any time after the date of publication of the
declaration but not later than 30 days from the
date of such publication.
The election of a person as President cannot be
challenged on the ground that the electoral
college was incomplete (i.e., existence of any
vacancy among the members of electoral
college).
If the election of a person as President is
declared void by the Supreme Court, acts done
by him before the date of such declaration of the
Supreme Court are not invalidated and continue
to remain in force.
Criticism of System of Indirect Election of
President
Some members of the Constituent Assembly
criticised the system of indirect election for the
President as undemocratic and proposed the
idea of direct election.
However, the Constitution makers chose the
indirect election due to the following reasons:
• The indirect election of the President is in
harmony with the parliamentary system of
government envisaged in the Constitution.
Under this system, the President is only a
nominal executive and the real powers are
vested in the council of ministers headed by
the prime minister. It would have been
anomalous to have the President elected
directly by the people and not give him any
real power.
• The direct election of the President would
have been very costly and time- and energy-
consuming due to the vast size of the
electorate. This is unwarranted keeping in
All doubts and disputes in connection with view that he is only a symbolic head.
election of the President are inquired into and
Some members of the Constituent Assembly
decided by the Supreme Court whose decision is
suggested that the President should be elected
final.
by the members of the two Houses of Parliament
Election to the Office of the President can be alone.
called in question by means of an election

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The makers of the Constitution did not prefer Before 1997, number of proposers and
this as the Parliament, dominated by one seconders was ten each and the amount of
political party, would have invariably chosen a security deposit was ₹2,500. In 1997, they were
candidate from that party and such a President increased to discourage the non-serious
could not represent the states of the Indian candidates
Union. The present system makes the President
a representative of the Union and the states Oath or Affirmation by the President
equally. Before entering upon his office, the President
has to make and subscribe to an oath or
Further, it was pointed out in the Constituent affirmation. In his oath, the President swears:
Assembly that the expression ‘proportional
representation’ in the case of presidential • to faithfully execute the office;
election is a misnomer. • to preserve, protect and defend the
Constitution and the law; and
Proportional representation takes place where • to devote himself to the service and well-
two or more seats are to be filled. In case of the being of the people of India.
President, the vacancy is only one. It could
better be called a preferential or alternative The oath of office to the President is
vote system. administered by the Chief Justice of India and in
his absence, the senior-most judge of the
Similarly, the expression ‘single transferable Supreme Court available.
vote’ was also objected on the ground that no
voter has a single vote; every voter has plural
votes.

Qualifications, Oath and Conditions

A person to be eligible for election as President
should fulfil the following qualifications:
1. He should be a citizen of India.
2. He should have completed 35 years of age.
3. He should be qualified for election as a
member of the Lok Sabha.
4. He should not hold any office of profit under
the Union government or any state
government or any local authority or any
other public authority. A sitting President or
Vice-President of the Union, the Governor of
any state and a minister of the Union or any
state is not deemed to hold any office of
profit and hence qualified as a presidential
candidate.
Further, the nomination of a candidate for
election to the office of President must be
subscribed by at least 50 electors as proposers
and 50 electors as seconders.
Every candidate has to make a security deposit
of ₹15,000 in the Reserve Bank of India. The
security deposit is liable to be forfeited in case
the candidate fails to secure one-sixth of the
votes polled.
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The President is entitled to a number of

privileges and immunities. He enjoys personal
immunity from legal liability for his official acts.
During his term of office, he is immune from any
criminal proceedings, even in respect of his
personal acts. He cannot be arrested or
Source: Indian Polity, M Laxmikanth imprisoned.

Any other person acting as President or However, after giving two months’ notice, civil
discharging the functions of the President also proceedings can be instituted against him
undertakes the similar oath or affirmation. during his term of office in respect of his
personal acts.
Conditions of President’s Office
The Constitution lays down the following Term, Impeachment and Vacancy
conditions of the President’s office: Term of President’s Office
The President holds office for a term of five
• He should not be a member of either House
years from the date on which he enters upon his
of Parliament or a House of the state
office.
legislature. If any such person is elected as
President, he is deemed to have vacated his However, he can resign from his office at any
seat in that House on the date on which he time by addressing the resignation letter to the
enters upon his office as President. Vice-President.
• He should not hold any other office of profit.
Any resignation addressed to the Vice-President
• He is entitled, without payment of rent, to
under shall forthwith be communicated by him to
the use of his official residence (the
the Speaker of the House of the People.
Rastrapathi Bhavan).
• He is entitled to such emoluments, Further, he can also be removed from the office
allowances and privileges as may be before completion of his term by the process of
determined by Parliament. impeachment.
• His emoluments and allowances cannot be
The President can hold office beyond his term of
diminished during his term of office.
five years until his successor assumes charge.
He is also eligible for re-election to that office.
In 2018, the Parliament increased the salary of
He may be elected for any number of terms.
the President from ₹1.50 lakh to ₹5 lakh per
month. However, in USA, a person cannot be elected to
the office of the President more than twice.
Earlier in 2008, the pension of the retired
President was increased from ₹3 lakh per Impeachment of President
annum to 50% of his salary per month. The President can be removed from office by a
process of impeachment for ‘violation of the
In addition, the former Presidents are entitled to
Constitution’.
furnished residence, phone facilities, car,
medical treatment, travel facility, secretarial However, the Constitution does not define the
staff and office expenses upto ₹1,00,000 per meaning of the phrase ‘violation of the
annum. Constitution’.

The spouse of a deceased President is also The impeachment charges can be initiated by
entitled to a family pension at the rate of 50% of either House of Parliament.
pension of a retired President, furnished
These charges should be signed by one-fourth
residence, phone facility, car, medical
members of the House (that framed the
treatment, travel facility, secretarial staff and
office expenses upto ₹20,000 per annum.
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charges), and a 14 days’ notice should be given In case of any delay in conducting the election of
to the President. new President by any reason, the outgoing
President continues to hold office (beyond his
After the impeachment resolution is passed by a
term of five years) until his successor assumes
majority of two-thirds of the total
charge. This is provided by the Constitution in
membership of that House, it is sent to the
order to prevent an ‘interregnum’.
other House, which should investigate the
charges. In this situation, the Vice-President does not get
the opportunity to act as President or to
The President has the right to appear and to be
discharge the functions of the President.
represented at such investigation.
If the other House also sustains the charges and
passes the impeachment resolution by a If the office falls vacant by resignation, removal,
majority of two-thirds of the total membership, death or otherwise, then election to fill the
then the President stands removed from his vacancy should be held within six months from
office from the date on which the resolution is the date of the occurrence of such a vacancy.
so passed.
The newly-elected President remains in office
Thus, an impeachment is a quasi-judicial for a full term of five years from the date he
procedure in the Parliament. assumes charge of his office.
In this context, two things should be noted: When a vacancy occurs in the office of the
President due to his resignation, removal, death
• the nominated members of either House of
or otherwise, the Vice-President acts as the
Parliament can participate in the
President until a new President is elected.
impeachment of the President though they
do not participate in his election; Further, when the sitting President is unable to
• the elected members of the legislative discharge his functions due to absence, illness or
assemblies of states and the Union any other cause, the Vice-President discharges
Territories of Delhi and Puducherry do not his functions until the President resumes his
participate in the impeachment of the office.
President though they participate in his
election.
No President has so far been impeached.
Vacancy in the President’s Office
A vacancy in the President’s office can occur in
any of the following ways:
• On the expiry of his tenure of five years.
• By his resignation.
• On his removal by the process of
impeachment.
• By his death.
• Otherwise, for example, when he becomes In case the office of Vice-President is vacant, the
disqualified to hold office or when his Chief Justice of India (or if his office is also
election is declared void. vacant, the senior-most judge of the Supreme
Court available) acts as the President or
When the vacancy is going to be caused by the discharges the functions of the President.
expiration of the term of the sitting President, an
election to fill the vacancy must be held before
the expiration of the term.

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• He can make rules for more convenient

transaction of business of the Union
government, and for allocation of the said
business among the ministers.
• He appoints the prime minister and the
other ministers. They hold office during his
pleasure.
• He appoints the attorney general of India
and determines his remuneration. The
attorney general holds office during the
pleasure of the President.

• He appoints the comptroller and auditor

general of India, the chief election
commissioner and other election
commissioners, the chairman and members
of the Union Public Service Commission, the
When any person, i.e., Vice-President, chief governors of states, the chairman and
justice of India, or the senior most judge of the members of finance commission, and so on.
Supreme Court is acting as the President or
discharging the functions of the President, he • He can seek any information relating to the
enjoys all the powers and immunities of the administration of affairs of the Union, and
President and is entitled to such emoluments, proposals for legislation from the prime
allowances and privileges as are determined by minister.
the Parliament.
• He can require the Prime Minister to submit,
Powers and Functions of the President for consideration of the council of ministers,
The powers enjoyed and the functions any matter on which a decision has been
performed by the President can be studied taken by a minister but, which has not been
under the following heads. considered by the council.
1. Executive powers
• He can appoint a commission to investigate
2. Legislative powers into the conditions of SCs, STs and other
3. Financial powers backward classes.

4. Judicial powers • He can appoint an inter-state council to

5. Diplomatic powers promote Centre-state and inter-state
cooperation.
6. Military powers • He directly administers the union territories
7. Emergency powers through administrators appointed by him.
• He can declare any area as scheduled area
Executive Powers and has powers with respect to the
• All executive actions of the Government of administration of scheduled areas and tribal
India are formally taken in his name. areas.
• He can make rules specifying the manner in
which the orders and other instruments Legislative Powers
made and executed in his name shall be The President is an integral part of the
authenticated. Parliament of India, and enjoys the following
legislative powers.
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• He can summon or prorogue the Parliament o return the bill (if it is not a money bill) for
and dissolve the Lok Sabha. reconsideration of Parliament.
However, if the bill is passed again by the
• He can also summon a joint sitting of both
Parliament, with or without amendments, the
the Houses of Parliament, which is presided
President has to give his assent to the bill.
over by the Speaker of the Lok Sabha.

• He can address the Parliament at the

• When a bill passed by a state legislature is
commencement of the first session after
reserved by the governor for consideration
each general election and the first session of
of the President, the President can:
each year.
o give his assent to the bill, or
o withhold his assent to the bill, or
• He can send messages to the Houses of
o direct the governor to return the bill (if it
Parliament, whether with respect to a bill
is not a money bill) reconsideration of
pending in the Parliament or otherwise.
the state legislature. It should be noted
here that it is not obligatory for the
• He can appoint any member of the Lok Sabha
President to give his assent even the bill
to preside over its proceedings when the
is again passed by the state legislature
offices of both the Speaker and the Deputy
and sent again him for his consideration.
Speaker fall vacant. Similarly, he can also
appoint any member of the Rajya Sabha to
• He can promulgate ordinances when the
preside over its proceedings when the
Parliament is not in session. These
offices of both the Chairman and the Deputy
ordinances must be approved by the
Chairman fall vacant.
Parliament within six weeks from its
reassembly. He can also withdraw an
• He nominates 12 members of the Rajya
ordinance at any time.
Sabha from amongst persons having special
knowledge or practical experience in
• He lays the reports of the Comptroller and
literature, science, art and social service.
Auditor General, Union Public Service
Commission, Finance Commission, and
• He can nominate two members to the Lok
others, before the Parliament.
Sabha from the Anglo- Indian Community.
• He can make regulations for the peace,
• He decides on questions as to
progress and good government of the
disqualifications of members of the
Andaman and Nicobar Islands,
Parliament, in consultation with the Election
Lakshadweep, Dadra and Nagar Haveli,
Commission.
Daman and Diu and Ladakh. In the case of
Puducherry also, the President can legislate
• His prior recommendation or permission is by making regulations but only when the
needed to introduce certain types of bills in assembly is suspended or dissolved.
the Parliament. For example, a bill involving
expenditure from the Consolidated Fund of
India, or a bill for the alteration of Financial Powers
boundaries of states or creation of a new The financial powers and functions of the
state. President are:
• Money bills can be introduced in the
• When a bill is sent to the President after it
Parliament only with his prior
has been passed by the Parliament, he can:
recommendation.
o give his assent to the bill, or
o withhold his assent to the bill, or
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• He causes to be laid before the Parliament Military Powers

the annual financial statement (i.e., the He is the supreme commander of the defence
Union Budget). forces of India.
In that capacity, he appoints the chiefs of the
• No demand for a grant can be made except
Army, the Navy and the Air Force.
on his recommendation.
He can declare war or conclude peace, subject to
• He can make advances out of the the approval of the Parliament.
contingency fund of India to meet any
Emergency Powers
unforeseen expenditure.
In addition to the normal powers mentioned
• He constitutes a finance commission after above, the Constitution confers extraordinary
every five years to recommend the powers on the President to deal with the
distribution of revenues between the Centre following three types of emergencies:
and the states.
• National Emergency (Article 352);
• President’s Rule (Article 356 & 365); and
Judicial Powers • Financial Emergency (Article 360)
The judicial powers and functions of the
President are: Veto Power of the President
A bill passed by the Parliament can become an
• He appoints the Chief Justice and the judges act only if it receives the assent of the President.
of Supreme Court and high courts. When such a bill is presented to the President
for his assent, he has three alternatives (under
• He can seek advice from the Supreme Court Article 111 of the Constitution):
on any question of law or fact. However, the
advice tendered by the Supreme Court is not 1. He may give his assent to the bill, or
binding on the President. 2. He may withhold his assent to the bill, or
3. He may return the bill (if it is not a Money
• He can grant pardon, reprieve, respite and bill) for reconsideration of the Parliament.
remission of punishment, or suspend, remit However, if the bill is passed again by the
or commute the sentence of any person Parliament with or without amendments
convicted of any offence: and again presented to the President, the
o In all cases where the punishment or President must give his assent to the bill.
sentence is by a court martial; Thus, the President has the veto power over the
o In all cases where the punishment or bills passed by the Parliament, that is, he can
sentence is for an offence against a Union withhold his assent to the bills.
law; and
o In all cases where the sentence is a The object of conferring this power on the
sentence of death. President is two-fold–(a) to prevent hasty and
ill-considered legislation by the Parliament; and
Diplomatic Powers (b) to prevent a legislation which may be
The international treaties and agreements are unconstitutional.
negotiated and concluded on behalf of the
President. However, they are subject to the The veto power enjoyed by the executive in
approval of the Parliament. modern states can be classified into the
following four types:
He represents India in international forums and
affairs and sends and receives diplomats like • Absolute veto, that is, withholding of
ambassadors, high commissioners, and so on. assent to the bill passed by the legislature.
• Qualified veto, which can be overridden by
the legislature with a higher majority.
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• Suspensive veto, which can be overridden Suspensive Veto

by the legislature with an ordinary The President exercises this veto when he
majority. returns a bill for reconsideration of the
• Pocket veto, that is, taking no action on the Parliament.
bill passed by the legislature.
However, if the bill is passed again by the
Of the above four, the President of India is Parliament with or without amendments and
vested with three– absolute veto, suspensive again presented to the President, it is obligatory
veto and pocket veto. for the President to give his assent to the bill.

There is no qualified veto in the case of Indian This means that the presidential veto is
President; it is possessed by the American overridden by a re passage of the bill by the
President. same ordinary majority (and not a higher
majority as required in USA).
The three vetos of the President of India are
explained below: The President does not possess this veto in the
case of money bills.
Absolute Veto
It refers to the power of the President to The President can either give his assent to a
withhold his assent to a bill passed by the money bill or withhold his assent to a money bill
Parliament. The bill then ends and does not but cannot return it for the reconsideration of
become an act. the Parliament.

Usually, this veto is exercised in the following Normally, the President gives his assent to
two cases: money bill as it is introduced in the Parliament
with his previous permission.
• With respect to private members’ bills (i.e.,
bills introduced by any member of Pocket Veto
Parliament who is not a minister); and In this case, the President neither ratifies nor
• With respect to the government bills when rejects nor returns the bill, but simply keeps the
the cabinet resigns (after the passage of the bill pending for an indefinite period.
bills but before the assent by the President) This power of the President not to take any
and the new cabinet advises the President action (either positive or negative) on the bill is
not to give his assent to such bills. known as the pocket veto.
In 1954, President Dr. Rajendra Prasad withheld The President can exercise this veto power as
his assent to the PEPSU Appropriation Bill. The the Constitution does not prescribe any time-
bill was passed by the Parliament when the limit within which he has to take the decision
President’s Rule was in operation in the state of with respect to a bill presented to him for his
PEPSU. But, when the bill was presented to the assent.
President for his assent, the President’s Rule
was revoked. In USA, on the other hand, the President has to
return the bill for reconsideration within 10 days.
Again in 1991, President R Venkataraman Hence, it is remarked that the pocket of the Indian
withheld his assent to the Salary, Allowances President is bigger than that of the American
and Pension of Members of Parliament President.
(Amendment) Bill. The bill was passed by the
Parliament (on the last day before dissolution of In 1986, President Zail Singh exercised the
Lok Sabha) without obtaining the previous pocket veto with respect to the Indian Post
recommendation of the President. Office (Amendment) Bill.
The bill, passed by the Rajiv Gandhi
Government, imposed restrictions on the

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freedom of press and hence, was widely Further, the Constitution has not prescribed any
criticised. time limit within which the President has to take
decision with regard to a bill reserved by the
After three years, in 1989, the next President R
governor for his consideration. Hence, the
Venkataraman sent the bill back for
President can exercise pocket veto in respect of
reconsideration, but the new National Front
state legislation also.
Government decided to drop the bill.
Summary of Veto Power of President
The President has no veto power in respect of a
Central Legislation State Legislation
constitutional amendment bill. The 24th
With Regard to Ordinary Bills
Constitutional Amendment Act of 1971 made it
Can be ratified Can be ratified
obligatory for the President to give his assent to Can be rejected Can be rejected
a constitutional amendment bill. Can be returned Can be returned
Presidential Veto over State Legislation With Regard to Money Bills
The President has veto power with respect to Can be ratified Can be ratified
state legislation also. Can be rejected (but Can be rejected (but
cannot cannot
A bill passed by a state legislature can become be returned) be returned)
an act only if it receives the assent of the With Regard to Constitutional
governor or the President (in case the bill is Amendment Bills
reserved for the consideration of the President). Can only be ratified Constitutional
(that is, amendment bills
When a bill, passed by a state legislature, is cannot be rejected cannot be introduced
presented to the governor for his assent, he has or returned) in the state
four alternatives (under Article 200 of the legislature.
Constitution):
• He may give his assent to the bill, or Ordinance-Making power of the
• He may withhold his assent to the bill, or President
• He may return the bill (if it is not a money Article 123 of the Constitution empowers the
bill) for reconsideration of the state President to promulgate ordinances during the
legislature, or recess of Parliament. These ordinances have the
• He may reserve the bill for the consideration same force and effect as an act of Parliament, but
of the President. are in the nature of temporary laws.
When a bill is reserved by the governor for the The ordinance-making power is the most
consideration of the President, the President important legislative power of the President. It
has three alternatives (Under Article 201 of the has been vested in him to deal with unforeseen
Constitution): or urgent matters.
• He may give his assent to the bill, or But, the exercises of this power is subject to the
• He may withhold his assent to the bill, or following four limitations:
• He may direct the governor to return the bill
• He can promulgate an ordinance only when
(if it is not a money bill) for the
both the Houses of Parliament are not in
reconsideration of the state legislature. If the
session or when either of the two Houses of
bill is passed again by the state legislature
Parliament is not in session.
with or without amendments and presented
An ordinance can also be issued when only
again to the President for his assent, the
one House is in session because a law can be
President is not bound to give his assent to
the bill. passed by both the Houses and not by one
House alone.
This means that the state legislature cannot
override the veto power of the President.
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An ordinance made when both the Houses six weeks from the reassembly of
are in session is void. Thus, the power of the Parliament.
President to legislate by ordinance is not a The ordinance may also cease to operate
parallel power of legislation. even earlier than the prescribed six weeks, if
• He can make an ordinance only when he is both the Houses of Parliament pass
satisfied that the circumstances exist that resolutions disapproving it.
render it necessary for him to take If the Houses of Parliament are summoned
immediate action. to reassemble on different dates, the period
In R C Cooper v Union of India (1970) case, of six weeks is calculated from the later of
the Supreme Court held that the President’s those dates. This means that the maximum
satisfaction can be questioned in a court on life of an ordinance can be six months and six
the ground of malafide. weeks, in case of non-approval by the
This means that the decision of the President Parliament.
to issue an ordinance can be questioned in a If an ordinance is allowed to lapse without
court on the ground that the President has being placed before Parliament, then the
prorogued one House or both Houses of acts done and completed under it, before it
Parliament deliberately with a view to ceases to operate, remain fully valid and
promulgate an ordinance on a controversial effective.
subject, so as to bypass the parliamentary
The President can also withdraw an ordinance
decision and thereby circumventing the
at any time.
authority of the Parliament.
However, his power of ordinance-making is not
The 38th Constitutional Amendment Act of a discretionary power, and he can promulgate
1975 made the President’s satisfaction final or withdraw an ordinance only on the advice of
and conclusive and beyond judicial review. the council of ministers headed by the prime
But this provision was deleted by the 44th minister.
Constitutional Amendment Act of 1978.
An ordinance like any other legislation, can be
Thus, the President’s satisfaction is
retrospective, that is, it may come into force
justiciable on the ground of malafide.
from a back date.
• His ordinance-making power is coextensive It may modify or repeal any act of Parliament or
as regards all matters except duration, with another ordinance.
the law-making powers of the Parliament.
It can alter or amend a tax law also.
This has two implications:
o An ordinance can be issued only on those However, it cannot be issued to amend the
subjects on which the Parliament can Constitution.
make laws.
The ordinance-making power of the President
o An ordinance is subject to the same
in India is rather unusual and not found in most
constitutional limitation as an act of
of the democratic Constitutions of the world
Parliament. Hence, an ordinance cannot
including that of USA, and UK.
abridge or take away any of the
fundamental rights. In justification of the ordinance making power
of the President, Dr. B.R. Ambedkar said in the
• Every ordinance issued by the President Constituent Assembly that the mechanism of
during the recess of Parliament must be laid issuing an ordinance has been devised in order
before both the Houses of Parliament when to enable the Executive to deal with a situation
it reassembles. If the ordinance is approved that may suddenly and immediately arise when
by both the Houses, it becomes an act. the Parliament is not in session.
If Parliament takes no action at all, the
ordinance ceases to operate on the expiry of
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It must be clarified here that the ordinance- • Sentence is a sentence of death.

making power of the President has no necessary
The pardoning power of the President is
connection with the national emergency
independent of the Judiciary; it is an executive
envisaged in Article 352.
power.
The President can issue an ordinance even
But the President while exercising this power,
when there is no war or external aggression or
does not sit as a court of appeal.
armed rebellion.
The object of conferring this power on the
The rules of Lok Sabha require that whenever a
President is two-fold:
bill seeking to replace an ordinance is
introduced in the House, a statement explaining a) to keep the door open for correcting any
the circumstances that had necessitated judicial errors in the operation of law; and,
immediate legislation by ordinance should also b) to afford relief from a sentence, which the
be placed before the House. President regards as unduly harsh.
Ordinances promulgated during different The pardoning power of the President includes
Lok Sabhas the following:
1. Pardon
It removes both the sentence and the conviction
and completely absolves the convict from all
sentences, punishments and disqualifications.
2. Commutation
It denotes the substitution of one form of
punishment for a lighter form. For example, a
death sentence may be commuted to rigorous
imprisonment, which in turn may be commuted
to a simple imprisonment.
3. Remission
It implies reducing the period of sentence
without changing its character. For example, a
Source: prsindia.org
sentence of rigorous imprisonment for two
During the 16th Lok Sabha (2014-2019), 45 years may be remitted to rigorous
Ordinances were promulgated. imprisonment for one year.

So far, no case has gone to the Supreme Court 4. Respite

regarding promulgation of ordinance by the
It denotes awarding a lesser sentence in place of
President.
one originally awarded due to some special fact,
Pardoning Power of the President such as the physical disability of a convict or the
Article 72 of the Constitution empowers the pregnancy of a woman offender.
President to grant pardons to persons who have 5. Reprieve
been tried and convicted of any offence in all
cases where the: It implies a stay of the execution of a sentence
(especially that of death) for a temporary
• Punishment or sentence is for an offence period.
against a Union Law;
• Punishment or sentence is by a court martial Its purpose is to enable the convict to have time
(military court); and to seek pardon or commutation from the
President.
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Under Article 161 of the Constitution, the • Where the earlier petition for mercy has
governor of a state also possesses the pardoning been rejected by the President, stay cannot
power. Hence, the governor can also grant be obtained by filing another petition.
pardons, reprieves, respites and remissions of
punishment or suspend, remit and commute the Constitutional Position of the
sentence of any person convicted of any offence President
against a state law. The Constitution of India has provided for a
parliamentary form of government.
But, the pardoning power of the governor Consequently, the President has been made only
differs from that of the President in following a nominal executive; the real executive being the
two respects: council of ministers headed by the prime
• The President can pardon sentences minister.
inflicted by court martial (military courts) In other words, the President has to exercise his
while the governor cannot. powers and functions with the aid and advise of
• The President can pardon death sentence the council of ministers headed by the prime
while governor cannot. Even if a state law minister.
prescribes death sentence, the power to
grant pardon lies with the President and not Dr. B.R. Ambedkar summed up the true position
the governor. of the President in the following way:

However, the governor can suspend, remit or “In the Indian Constitution, there is placed at the
commute a death sentence. In other words, both head of the Indian Union a functionary who is
the governor and the President have concurrent called the President of the Union.
power in respect of suspension, remission and The title of the functionary reminds of the
commutation of death sentence. President of the United States. But beyond the
The Supreme Court examined the pardoning identity of names, there is nothing in common
power of the President under different cases between the form of government prevalent in
and laid down the following principles: America and the form of government adopted
under the Indian Constitution.
• The petitioner for mercy has no right to an
oral hearing by the President. The American form of government is called the
• The President can examine the evidence presidential system of government and what the
afresh and take a view different from the Indian Constitution adopted is the
view taken by the court. Parliamentary system.
• The power is to be exercised by the Under the presidential system of America, the
President on the advice of the union cabinet. President is the Chief head of the Executive and
• The President is not bound to give reasons administration is vested in him.
for his order.
• The President can afford relief not only from Under the Indian Constitution, the President
a sentence that he regards as unduly harsh occupies the same position as the King under
but also from an evident mistake. the English Constitution. He is the head of the
State but not of the Executive.
• There is no need for the Supreme Court to
lay down specific guidelines for the exercise He represents the nation but does not rule the
of power by the President. nation.
• The exercise of power by the President is not
subject to judicial review except where the He is the symbol of the nation. His place in
presidential decision is arbitrary, irrational, administration is that of a ceremonial device or
mala fide or discriminatory. a seal by which the nation’s decisions are made
known.

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He is generally bound by the advice of his reconsider such advice either generally or
ministers. He can do nothing contrary to their otherwise. However, he ‘shall’ act in accordance
advice nor can he do anything without their with the advice tendered after such
advice. reconsideration.
The President of the United States can dismiss In other words, the President may return a
any secretary at any time. The President of the matter once for reconsideration of his ministers,
Indian Union has no power to do so, so long as but the reconsidered advice shall be binding.
his ministers command a majority in
In October 1997, the cabinet recommended
Parliament”.
President K.R. Narayanan to impose President’s
In estimating the constitutional position of the Rule (under Article 356) in Uttar Pradesh. The
President, particular reference has to be made President returned the matter for the
to the provisions of Articles 53, 74 and 75. reconsideration of the cabinet, which then
decided not to move ahead in the matter. Hence,
These are:
the BJP-led government under Kalyan Singh was
• The executive power of the Union shall be saved.
vested in President and shall be exercised by
Again in September 1998, the President KR
him either directly or through officers
Narayanan returned a recommendation of the
subordinate to him in accordance with this
cabinet that sought the imposition of the
Constitution (Article 53).
President’s Rule in Bihar. After a couple of
• There shall be a council of ministers with the months, the cabinet readvised the same. It was
Prime Minister at the head to aid and advise only then that the President’s Rule was imposed
the President who ‘shall’, in the exercise of in Bihar, in February 1999.
his functions, act in accordance with such
advice (Article 74). Though the President has no constitutional
• The council of ministers shall be collectively discretion, he has some situational discretion. In
responsible to the Lok Sabha (Article 75). other words, the President can act on his
This provision is the foundation of the discretion (that is, without the advice of the
parliamentary system of government. ministers) under the following situations:

The 42nd Constitutional Amendment Act of 1976 • Appointment of Prime Minister when no
(enacted by the Indira Gandhi Government) party has a clear majority in the Lok Sabha
made the President bound by the advice of the or when the Prime Minister in office dies
council of ministers headed by the prime suddenly and there is no obvious successor.
minister. • Dismissal of the council of ministers when it
cannot prove the confidence of the Lok
The 44th Constitutional Amendment Act of 1978
Sabha.
(enacted by the Janata Party Government
• Dissolution of the Lok Sabha if the council of
headed by Morarji Desai) authorised the
ministers has lost its majority.
President to require the council of ministers to
********

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Chapter 20 – Governor

The Constitution of India envisages the same The Draft Constitution provided for the direct
pattern of government in the states as that for election of the governor on the basis of universal
the Centre, that is, a parliamentary system. adult suffrage.
Part VI of the Constitution deals with the But the Constituent Assembly opted for the
government in the states. present system of appointment of governor by
the president because of the following reasons:
Articles 153 to 167 in Part VI of the Constitution
deal with the state executive. • The direct election of the governor is
incompatible with the parliamentary system
The state executive consists of the governor, the
established in the states.
chief minister, the council of ministers and the
• The mode of direct election is more likely to
advocate general of the state. Thus, there is no
create conflicts between the governor and
office of vice-governor (in the state) like that of
the chief minister.
Vice-President at the Centre.
• The governor being only a constitutional
The governor is the chief executive head of the (nominal) head, there is no point in making
state. But, like the president, he is a nominal elaborate arrangements for his election and
executive head (titular or constitutional head). spending huge amount of money.
• An elected governor would naturally belong
The governor also acts as an agent of the central
to a party and would not be a neutral person
government. Therefore, the office of governor
and an impartial head.
has a dual role.
• The system of presidential nomination
Usually, there is a governor for each state, but enables the Centre to maintain its control
the 7th Constitutional Amendment Act of 1956 over the states.
facilitated the appointment of the same person
as a governor for two or more states. Therefore, the American model, where the
Governor of a state is directly elected, was
dropped and the Canadian model, where the
governor of a province (state) is appointed by
the Governor-General (Centre), was accepted in
Appointment Of Governor the Constituent Assembly.
The governor is neither directly elected by the
The Constitution lays down only two
people nor indirectly elected by a specially
qualifications for the appointment of a person as
constituted electoral college as is the case with
a governor. These are:
the president.
• He should be a citizen of India.
He is appointed by the president by warrant
• He should have completed the age of 35
under his hand and seal.
years.
In a way, he is a nominee of the Central
Additionally, two conventions have also
government. But, as held by the Supreme Court
developed in this regard over the years.
in 1979, the office of governor of a state is not an
employment under the Central government. First, he should be an outsider, that is, he should
not belong to the state where he is appointed, so
It is an independent constitutional office and is
that he is free from the local politics.
not under the control of or subordinate to the
Central government. Second, while appointing the governor, the
president is required to consult the chief
minister of the state concerned, so that the

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smooth functioning of the constitutional during his term of office in respect of his
machinery in the state is ensured. personal acts.
However, both the conventions have been Before entering upon his office, the governor
violated in some of the cases. has to make and subscribe to an oath or
affirmation. In his oath, the governor swears:
Conditions of Governor’s Office
The Constitution lays down the following • to faithfully execute the office;
conditions for the governor’s office: • to preserve, protect and defend the
Constitution and the law; and
• He should not be a member of either House • to devote himself to the service and well-
of Parliament or a House of the state being of the people of the state.
legislature. If any such person is appointed
as governor, he is deemed to have vacated The oath of office to the governor is
his seat in that House on the date on which administered by the chief justice of the
he enters upon his office as the governor. concerned state high court and in his absence,
the senior-most judge of that court available.
• He should not hold any other office of profit.
Every person discharging the functions of the
governor also undertakes the similar oath or
• He is entitled without payment of rent to the affirmation.
use of his official residence (the Raj Bhavan).
Term of Governor’s Office
• He is entitled to such emoluments, A governor holds office for a term of five years
allowances and privileges as may be from the date on which he enters upon his office.
determined by Parliament. However, this term of five years is subject to the
pleasure of the President.
• When the same person is appointed as the
Further, he can resign at any time by addressing
governor of two or more states, the
a resignation letter in writing to the President.
emoluments and allowances payable to him
are shared by the states in such proportion The Supreme Court held that the pleasure of the
as determined by the president. President is not justifiable. The governor has no
security of tenure and no fixed term of office. He
may be removed by the President at any time.
• His emoluments and allowances cannot be
The Constitution does not lay down any grounds
diminished during his term of office.
upon which a governor may be removed by the
In 2018, the Parliament has increased the salary President. Hence, the National Front
of the governor from ₹1.10 lakh to ₹3.50 lakh Government headed by V.P. Singh (1989) asked
per month. all the governors to resign as they were
appointed by the Congress government.
Like the President, the governor is also entitled
Eventually, some of the governors were
to a number of privileges and immunities. He
replaced and some were allowed to continue.
enjoys personal immunity from legal liability for
his official acts. The same thing was repeated in 1991, when the
Congress Government headed by P.V.
During his term of office, he is immune from any
Narasimha Rao changed fourteen governors
criminal proceedings, even in respect of his
appointed by the V.P. Singh and Chandra Sekhar
personal acts. He cannot be arrested or
governments.
imprisoned.
The President may transfer a Governor
However, after giving two months’ notice, civil
appointed to one state to another state for the
proceedings can be instituted against him
rest of the term.

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Further, a Governor whose term has expired • He appoints the chief minister and other
may be reappointed in the same state or any ministers. They also hold office during his
other state. pleasure.
A governor can hold office beyond his term of There should be a Tribal Welfare minister in the
five years until his successor assumes charge. states of Chhattisgarh, Jharkhand, Madhya
The underlying idea is that there must be a Pradesh and Odisha appointed by him.
governor in the state and there cannot be an
interregnum.
The President can make such provision as he • He appoints the advocate general of a state
thinks fit for the discharge of the functions of the and determines his remuneration. The
governor in any contingency not provided for in advocate general holds office during the
the Constitution, for example, the death of a pleasure of the governor.
sitting governor.
Thus, the chief justice of the concerned state
high court may be appointed temporarily to
discharge the functions of the governor of that • He appoints the state election commissioner
state. and determines his conditions of service and
tenure of office. However, the state election
Powers and Functions of Governor
commissioner can be removed only in like
A governor possesses executive, legislative,
manner and on the like grounds as a judge of
financial and judicial powers more or less
a high court.
analogous to the President of India.
However, he has no diplomatic, military or
emergency powers like the president.
• He appoints the chairman and members of
The powers and functions of the governor can
the state public service commission.
be studied under the following heads:
However, they can be removed only by the
• Executive powers president and not by a governor.
• Legislative powers
• Financial powers
• Judicial powers
• He can seek any information relating to the
Executive Powers administration of the affairs of the state and
The executive powers and functions of the proposals for legislation from the chief
Governor are: minister.
• All executive actions of the government of a
state are formally taken in his name. • He can require the chief minister to submit
for the consideration of the council of
• He can make rules specifying the manner in ministers any matter on which a decision
which the Orders and other instruments has been taken by a minister but which has
made and executed in his name shall be not been considered by the council.
authenticated.
• He can recommend the imposition of
• He can make rules for more convenient constitutional emergency in a state to the
transaction of the business of a state president. During the period of President’s
government and for the allocation among rule in a state, the governor enjoys extensive
the ministers of the said business. executive powers as an agent of the
President.
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• He acts as the chancellor of universities in o Give his assent to the bill, or

the state. He also appoints the vice o Withhold his assent to the bill, or
chancellors of universities in the state. o Return the bill (if it is not a money bill)
for reconsideration of the state
Legislative Powers
legislature. However, if the bill is passed
A governor is an integral part of the state
again by the state legislature with or
legislature. In that capacity, he has the following
without amendments, the governor has
legislative powers and functions:
to give his assent to the bill, or
• He can summon or prorogue the state o Reserve the bill for the consideration of
legislature and dissolve the state legislative the president. In one case such
assembly. reservation is obligatory, that is, where
the bill passed by the state legislature
• He can address the state legislature at the endangers the position of the state high
commencement of the first session after court.
each general election and the first session of In addition, the governor can also
each year. reserve the bill if it is of the following
nature:
• He can send messages to the house or houses • Ultra-vires, that is, against the
of the state legislature, with respect to a bill provisions of the Constitution.
pending in the legislature or otherwise. • Opposed to the Directive Principles
of State Policy.
• He can appoint any member of the State • Against the larger interest of the
legislative assembly to preside over its country.
proceedings when the offices of both the • Of grave national importance.
Speaker and the Deputy Speaker fall vacant. • Dealing with compulsory acquisition
Similarly, he can appoint any member of the of property under Article the
state legislature council to preside over its Constitution.
proceedings when the offices of both
Chairman and Deputy Chairman fall vacant. • He can promulgate ordinances when the
state legislature is not in session. These
• He nominates one-sixth of the members of ordinances must be approved by the state
the state legislative council from amongst legislature within six weeks from its
persons having special knowledge or reassembly. He can also withdraw an
practical experience in literature, science, ordinance anytime. This is the most
art, cooperative movement and social important legislative power of the governor.
service.
• He lays the reports of the State Finance
• He can nominate one member to the state Commission, the State Public Service
legislature assembly from the Anglo-Indian Commission and the Comptroller and
Community. Auditor- General relating to the accounts of
the state, before the state legislature.
Financial Powers
The financial powers and functions of the
• He decides on the question of
governor are:
disqualification of members of the state
legislature in consultation with the Election • He sees that the Annual Financial Statement
Commission. (state budget) is laid before the state
legislature.
• When a bill is sent to the governor after it is
passed by state legislature, he can:
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• Money bills can be introduced in the state to the President for a bicameral
legislature only with his prior his assent. legislature either in
recommendation. He has three the first instance or in
alternatives: the second instance,
• No demand for a grant can be made except  He may give his is presented to the
assent to the bill, governor for his
on his recommendation.
then the bill assent.
becomes an act. He has four
• He can make advances out of the  He may withhold alternatives:
Contingency Fund of the state to meet any his assent to the  He may give his
unforeseen expenditure. bill, the bill then assent to the bill,
ends and does not then the bill
• He constitutes a finance commission after become an act. becomes an act.
every five years to review the financial  He may return the  He may withhold
position of the panchayats and the bill for his assent to the
municipalities. reconsideration bill, the bill then
of the Houses. ends and does not
Judicial Powers If the bill is passed by become an act.
The judicial powers and functions of the both the Houses  He may return the
governor are: again with or without bill for
amendments and reconsideration
• He can grant pardons, reprives, respites and presented to the of the House or
remissions of punishment or suspend, remit President for his Houses.
and commute the sentence of any person assent, the president If the bill is passed by
convicted of any offence against any law must give his assent the House or Houses
relating to a matter to which the executive to the bill. again with or without
power of the state extends. Thus, the president amendments and
• He is consulted by the president while enjoys only a presented to the
appointing the judges of the concerned state ‘suspensive veto’. governor for his
assent, the governor
high court.
must give his assent
• He makes appointments, postings and to the bill.
promotions of the district judges in Thus, the governor
consultation with the state high court. enjoys only a
• He also appoints persons to the judicial ‘suspensive veto’.
service of the state (other than district  He may reserve
judges) in consultation with the state high the bill for the
court and the State Public Service consideration of
Commission. the President.
When a state bill is When the governor
Comparison Of Powers Of President reserved by the reserves a bill for the
And Governor governor for the consideration of the
Comparing Veto Powers of President and consideration of the President, he will not
Governor President, the have any further role
President has three in the enactment of
President Governor alternatives: the bill.
With Regard to Ordinary Bills  He may give his If the bill is returned
Every ordinary bill, Every ordinary bill, assent to the bill, by the President for
after it is passed by after it is passed by then the bill the reconsideration
both the Houses of the legislative becomes an act. of the House or
the Parliament either assembly in case of a  He may withhold Houses and is passed
singly or at a joint unicameral his assent to the again, the bill must be
sitting, is presented legislature or by both bill, the bill then presented again for
the Houses in case of
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ends and does not the presidential Normally, the Normally, the
become an Act. assent only. president gives his governor gives his
 He may return the If the President gives assent to a money bill assent to a money bill
bill for his assent to the bill, as it is introduced in as it is introduced in
reconsideration it becomes an act. the Parliament with the state legislature
of the House or This means that the his previous with his previous
Houses of the assent of the permission. permission.
state legislature. Governor is no longer When a Money Bill is When the governor
When a bill is so required. reserved by the reserves a money bill
returned, the House Governor for the for the consideration
or Houses have to consideration of the of the President, he
reconsider it within President, the will not have any
six months. If the bill President has two further role in the
is passed by the alternatives: enactment of the bill.
House or Houses  He may give his If the President gives
again with or without assent to the bill, his assent to the bill,
amendments and then the bill it becomes an Act.
presented to the becomes an Act. This means that the
president for his  He may withhold assent of the
assent, the president his assent to the governor is no longer
is not bound to give bill, the bill then required.
his assent to the bill. ends and does not
He may give his become an act.
assent to such a bill or Thus, the President
withhold his assent. cannot return a
With Regard to Money Bills money bill for the
Every money bill Every money bill, reconsideration of
after it is passed by after it is passed by the state legislature
the Parliament, is the state legislature (as in the case of the
presented to the (unicameral or Parliament).
President for his bicameral), is Comparing Ordinance-Making Power of
assent. presented to the President and Governor
He has two governor for his
alternatives: assent. President Governor
 He may give his He has three He can promulgate He can promulgate an
assent to the bill, alternatives: an ordinance only ordinance only when
then the bill  He may give his when both the the legislative
becomes an act. assent to the bill, Houses of assembly (in case of a
 He may withhold then the bill Parliament are not unicameral
his assent to the becomes an act. in session or when legislature) is not in
bill, the bill then  He may withhold either of the two session or (in case of a
ends and does not his assent to the Houses of bicameral legislature)
become an act. bill, the bill then Parliament is not in when both the Houses
ends and does not session. of the state legislature
become an act. The second are not in session or
 He may reserve provision implies when either of the two
the bill for the that an ordinance Houses of the state
consideration of can also be legislature is not in
the president. promulgated by the session.
Thus, the President Thus, the governor president when only The last provision
cannot return a cannot return a one House is in implies that an
money bill for the money bill for the session because a ordinance can be
reconsideration of reconsideration of law can be passed by promulgated by the
the Parliament. the state legislature. both the Houses and governor when only
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not by one House one House (in case of a withdraw an ordinance only on the
alone. bicameral legislature) ordinance only on advice of the council
is in session because a the advice of the headed by the chief
law can be passed by council of ministers minister.
both the Houses and of ministers headed
not by one House by the prime
alone. minister.
He can promulgate He can promulgate an An ordinance issued An ordinance issued
an ordinance only ordinance only when by him should be by him should be laid
when he is satisfied he is satisfied that laid before both the before the legislative
that circumstances circumstances exist Houses of assembly or both the
exist which render it which render it Parliament when it Houses of the state
necessary for him to necessary for him to reassembles. legislature (in case of a
take immediate take immediate action. bicameral legislature)
action. when it reassembles.
His ordinance- His ordinance-making An ordinance issued An ordinance issued
making power is co- power is co-extensive by him ceases to by him ceases to
extensive with the with the legislative operate on the operate on the expiry
legislative power of power of the state expiry of six weeks of six weeks from the
the Parliament. legislature. This means from the reassembly reassembly of the state
This means that he that he can issue of Parliament. legislature.
can issue ordinances only on It may cease to It may cease to operate
ordinances only on those subjects on operate even earlier even earlier than the
those subjects on which the state than the prescribed prescribed six weeks,
which the legislature can make six weeks, if both the if a resolution
Parliament can laws. Houses of disapproving it is
make laws. Parliament passes passed by the
An ordinance issued An ordinance issued resolutions legislative assembly
by him has the same by him has the same disapproving it. and is agreed to by the
force and effect as force and effect as an legislative council (in
an act of the act of the state case of a bicameral
Parliament. legislature. legislature).
An ordinance issued An ordinance issued He needs no He cannot make an
by him is subject to by him is subject to the instruction for ordinance without the
the same limitations same limitations as an making an instructions from the
as an act of act of the state ordinance. President in three
Parliament. legislature. cases:
This means that an This means that an  If a bill containing
ordinance issued by ordinance issued by the same
him will be invalid him will be invalid to provisions would
to the extent it the extent it makes any have required the
makes any provision provision which the previous sanction
which the state legislature of the President for
Parliament cannot cannot make. its introduction
make. into the state
He can withdraw an He can withdraw an legislature.
ordinance at any ordinance at any time.  If he would have
time. deemed it
His ordinance- His ordinance-making necessary to
making power is not power is not a reserve a bill
a discretionary discretionary power. containing the
power. This means that he can same provisions
This means that he promulgate or for the
can promulgate or withdraw an
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consideration of executive constitutes the council of ministers

the President. headed by the chief minister.
 If an act of the state
legislature In other words, the governor has to exercise his
containing the powers and functions with the aid and advise of
same provisions the council of ministers headed by the chief
would have been minister, except in matters in which he is
invalid without required to act in his discretion (i.e., without the
receiving the advice of ministers).
President’s assent.
In estimating the constitutional position of the
governor, particular reference has to be made to
Comparing Pardoning Powers of President the provisions of Articles 154, 163 and 164.
and Governor
These are:
President Governor
He can pardon, He can pardon, • The executive power of the state shall be
reprieve, respite,reprieve, respite, vested in the governor and shall be exercised
remit, suspend or remit, suspend or by him either directly or through officers
commute the commute the subordinate to him in accordance with this
punishment or punishment or Constitution (Article 154).
sentence of any sentence of any • There shall be a council of ministers with the
person convicted of person convicted of chief minister as the head to aid and advise
any offence against a any offence the governor in the exercise of his functions,
Central law. against a state law.
except in so far as he is required to exercise
He can pardon, He cannot pardon a
his functions in his discretion (Article 163).
reprieve, respite,death sentence. Even
remit, suspend or if a state law • The council of ministers shall be collectively
commute a death prescribes for death responsible to the legislative assembly of the
sentence. sentence, the power state (Article 164). This provision is the
He is the only to grant pardon lies foundation of the parliamentary system of
authority to pardon a with the President government in the state.
death sentence. and not the
From the above, it is clear that constitutional
governor. But the
governor can position of the governor differs from that of the
suspend, remit or president in the following two respects:
commute a death
• While the Constitution envisages the
sentence.
possibility of the governor acting at times in
He can grant pardon, He does not possess
his discretion, no such possibility has been
reprieve, respite, any such power.
suspension, remission envisaged for the President.
or commutation in • After the 42nd Constitutional Amendment
respect to (1976), ministerial advice has been made
punishment or binding on the President, but no such
sentence by a court- provision has been made with respect to the
martial (military governor.
court).
The Constitution makes it clear that if any
question arises whether a matter falls within the
Constitutional Position of Governor governor’s discretion or not, the decision of the
The Constitution of India provides for a governor is final and the validity of anything
parliamentary form of government in the states done by him cannot be called in question on the
as in the Centre. Consequently, the governor has ground that he ought or ought not to have acted
been made only a nominal executive, the real in his discretion.
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The governor has constitutional discretion in In addition to the above constitutional

the following cases: discretion (i.e., the express discretion
mentioned in the Constitution), the governor,
• Reservation of a bill for the consideration of
like the president, also has situational discretion
the President.
(i.e., the hidden discretion derived from the
• Recommendation for the imposition of the exigencies of a prevailing political situation) in
President’s Rule in the state. the following cases:
• While exercising his functions as the
administrator of an adjoining union • Appointment of chief minister when no
territory (in case of additional charge). party has a clear-cut majority in the state
• Determining the amount payable by the legislative assembly or when the chief
Government of Assam, Meghalaya, Tripura minister in office dies suddenly and there is
and Mizoram to an autonomous Tribal no obvious successor.
District Council as royalty accruing from • Dismissal of the council of ministers when it
licenses for mineral exploration. cannot prove the confidence of the state
• Seeking information from the chief minister legislative assembly.
with regard to the administrative and • Dissolution of the state legislative assembly
legislative matters of the state. if the council of ministers has lost its
majority

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Chapter 21 – Vice-President

The Vice-President occupies the second highest But when we come to the Vice-President, his
office in the country. normal functions are to preside over the council
of states.
He is accorded a rank next to the President in
the official warrant of precedence. It is only on a rare occasion, and that too for a
temporary period, that he may be called upon to
This office is modelled on the lines of the
assume the duties of the president.
American Vice-President.
That being so, it does not seem necessary that
the members of the state legislatures should
also be invited to take part in the election of the
Vice-President”.
Election
The Vice-President, like the president, is elected The Vice-President’s election, like that of the
not directly by the people but by the method of President’s election, is held in accordance with
indirect election. the system of proportional representation by
means of the single transferable vote and the
He is elected by the members of an electoral voting is by secret ballot.
college consisting of the members of both
Houses of Parliament. All doubts and disputes in connection with
election of the Vice- President are inquired into
The original Constitution provided that the Vice- and decided by the Supreme Court whose
President would be elected by the two Houses of decision is final.
Parliament assembled at a joint meeting. This
procedure was done away by the 11th The election of a person as Vice-President
Constitutional Amendment Act of 1961. cannot be challenged on the ground that the
electoral college was incomplete (i.e., existence
This electoral college is different from the of any vacancy among the members of electoral
electoral college for the election of the President college).
in the following two respects:
If the election of a person as Vice President is
• It consists of both elected and nominated declared void by the Supreme Court, acts done
members of the Parliament (in the case of by him before the date of such declaration of the
president, only elected members) Supreme Court are not invalidated (i.e., they
• It does not include the members of the state continue to remain in force).
legislative assemblies (in the case of
President, the elected members of the state Qualifications, Oath and Conditions
legislative assemblies are included). Qualifications
To be eligible for election as Vice-President, a
Explaining the reason for this difference, Dr. B.R.
person should fulfil the following qualifications:
Ambedkar observed:
• He should be a citizen of India.
“The President is the head of the State and his
• He should have completed 35 years of age.
power extends both to the administration by the
• He should be qualified for election as a
Centre as well as to the states. Consequently, it
member of the Rajya Sabha.
is necessary that in his election, not only
members of Parliament should play their part, • He should not hold any office of profit under
but the members of the state legislatures should the Union government or any state
have a voice. government or any local authority or any
other public authority.

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But, a sitting President or Vice-President of the He can be removed by a resolution passed by a

Union, the governor of any state and a minister majority of all the then members of the Rajya
for the Union or any state is not deemed to hold Sabha and agreed to by the Lok Sabha.
any office of profit and hence qualified for being
This means that this resolution should be
a candidate for Vice-President.
passed in the Rajya Sabha by an effective
Further, the nomination of a candidate for majority and in the Lok Sabha by a simple
election to the office of Vice-President must be majority.
subscribed by at least 20 electors as proposers
Further, this resolution can be introduced only
and 20 electors as seconders.
in the Rajya Sabha and not in the Lok Sabha. But
Every candidate has to make a security deposit no such resolution can be moved unless at least
of ₹15,000 in the Reserve Bank of India. 14 days’ advance notice has been given.
Oath or Affirmation No ground has been mentioned in the
Before entering upon his office, the Vice Constitution for his removal.
President has to make and subscribe to an oath
The Vice-President can hold office beyond his
or affirmation.
term of five years until his successor assumes
In his oath, the Vice President swears: charge.
• to bear true faith and allegiance to the He is also eligible for re-election to that office.
Constitution of India; and He may be elected for any number of terms.
• to faithfully discharge the duties of his office.
Vacancy in Office
The oath of office to the Vice-President is A vacancy in the Vice-President’s office can
administered by the President or some person occur in any of the following ways:
appointed in that behalf by him.
• On the expiry of his tenure of five years
Conditions of Office • By his resignation
• On his removal
The Constitution lays down the following two
• By his death
conditions of the Vice-President’s office:
• Otherwise, for example, when he becomes
• He should not be a member of either House disqualified to hold office or when his
of Parliament or a House of the state election is declared void.
legislature. If any such person is elected
When the vacancy is going to be caused by the
Vice-President, he is deemed to have vacated
expiration of the term of the sitting vice-
his seat in that House on the date on which
president, an election to fill the vacancy must be
he enters upon his office as Vice-President.
held before the expiration of the term.
• He should not hold any other office of profit.
If the office falls vacant by resignation, removal,
Term and Vacancy death or otherwise, then election to fill the
Term of Office vacancy should be held as soon as possible after
The Vice-President holds office for a term of five the occurrence of the vacancy.
years from the date on which he enters upon his
office. The newly elected vice-president remains in
office for a full term of five years from the date
However, he can resign from his office at any he assumes charge of his office.
time by addressing the resignation letter to the
President. Powers and Functions
The functions of Vice-President are two-fold:
He can also be removed from the office before
completion of his term. A formal impeachment • He acts as the ex-officio Chairman of Rajya
is not required for his removal. Sabha. In this capacity, his powers and

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functions are similar to those of the Speaker In 2018, the Parliament increased the salary of
of Lok Sabha. the Chairman of the Rajya Sabha from ₹1.25 lakh
In this respect, he resembles the American to ₹4 lakh per month.
vice-president who also acts as the
Earlier in 2008, the pension of the retired Vice-
Chairman of the Senate–the Upper House of
President was increased from ₹20,000 per
the American legislature.
month to 50% of his salary per month.
• He acts as President when a vacancy occurs In addition, he is entitled to daily allowance, free
in the office of the President due to his furnished residence, medical, travel and other
resignation, impeachment, death or facilities.
otherwise
During any period when the Vice-President acts
He can act as President only for a maximum as President or discharges the functions of the
period of six months within which a new President, he is not entitled to the salary or
President has to be elected. allowance payable to the Chairman of Rajya
Sabha, but the salary and allowance of the
Further, when the sitting President is unable to
President.
discharge his functions due to absence, illness or
any other cause, the Vice-President discharges Indian and American Vice-Presidents
his functions until the President resumes his compared
office. Though the office of the Indian Vice-President is
While acting as President or discharging the modelled on the lines of the American Vice-
functions of President, the Vice-President does President, there is a difference.
not perform the duties of the office of the The American Vice-President succeeds to the
chairman of Rajya Sabha. presidency when it falls vacant, and remains
During this period, those duties are performed President for the unexpired term of his
by the Deputy Chairman of Rajya Sabha. predecessor.

Salary and Allowances The Indian Vice-President, on the other hand,

The Constitution has not fixed any emoluments does not assume the office of the President
for the Vice- President in that capacity. He draws when it falls vacant for the unexpired term.
his regular salary in his capacity as the ex-officio He merely serves as an acting President until the
Chairman of the Rajya Sabha. new President assumes charge.

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Chapter 22 – Prime Minister

In the scheme of parliamentary system of This is what happened when Indira Gandhi was
government provided by the constitution, the assassinated in 1984. The then President Zail
President is the nominal executive authority (de Singh appointed Rajiv Gandhi as the Prime
jure executive) and Prime Minister is the real Minister by ignoring the precedent of
executive authority (de facto executive). appointing a caretaker Prime Minister.
In other words, president is the head of the State Later on, the Congress parliamentary party
while Prime Minister is the head of the unanimously elected him as its leader. However,
government. if, on the death of an incumbent Prime Minister,
the ruling party elects a new leader, the
Appointment of the Prime Minister President has no choice but to appoint him as
The Constitution does not contain any specific Prime Minister.
procedure for the selection and appointment of
the Prime Minister. On the death of Jawaharlal Nehru and Lal
Bahadur Shastri when the leadership was
Article 75 says only that the Prime Minister shall contested, the president made temporary
be appointed by the president. However, this arrangements by appointing the senior most
does not imply that the president is free to minister as the Prime Minister, until the formal
appoint any one as the Prime Minister. election of the leader by the party. Both the times,
In accordance with the conventions of the it was Gulzari Lal Nanda who acted as the Prime
parliamentary system of government, the Minister.
President has to appoint the leader of the
majority party in the Lok Sabha as the Prime
Minister.
But, when no party has a clear majority in the
Lok Sabha, then the President may exercise his
personal discretion in the selection and
appointment of the Prime Minister.
In such a situation, the President usually
appoints the leader of the largest party or
coalition in the Lok Sabha as the Prime Minister
and asks him to seek a vote of confidence in the
House within a month.
This discretion was exercised by the President,
for the first time in 1979, when Neelam Sanjiva
Reddy (the then President) appointed Charan
Singh (the coalition leader) as the Prime
Minister after the fall of the Janata Party
government headed by Morarji Desai. In 1980, the Delhi High Court held that the
Constitution does not require that a person
There is also one more situation when the
must prove his majority in the Lok Sabha before
president may have to exercise his individual
he is appointed as the Prime Minister.
judgement in the selection and appointment of
the Prime Minister, that is, when the Prime The President may first appoint him the Prime
Minister in office dies suddenly and there is no Minister and then ask him to prove his majority
obvious successor. in the Lok Sabha within a reasonable period.

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For example, Charan Singh (1979), V.P. Singh president can dismiss the Prime Minister at any
(1989), Chandrasekhar (1990), P.V. Narasimha time.
Rao (1991), A.B. Vajyapee (1996), Deve Gowda
So long as the Prime Minister enjoys the
(1996), I.K. Gujral (1997) and again A.B.
majority support in the Lok Sabha, he cannot be
Vajpayee (1998) were appointed as Prime
dismissed by the President.
Ministers in this way.
However, if he loses the confidence of the Lok
In 1997, the Supreme Court held that a person
Sabha, he must resign or the President can
who is not a member of either House of
dismiss him.
Parliament can be appointed as Prime Minister
for six months, within which, he should become The salary and allowances of the Prime Minister
a member of either House of Parliament; are determined by the Parliament from time to
otherwise, he ceases to be the Prime Minister. time.
Constitutionally, the Prime Minister may be a He gets the salary and allowances that are
member of any of the two Houses of parliament. payable to a member of Parliament.
For example, four Prime Ministers, Indira
Additionally, he gets a sumptuary allowance,
Gandhi (1966), Deve Gowda (1996), I.K. Gujral
free accommodation, travelling allowance,
(1997) and Manmohan Singh (2004), were
medical facilities, etc.
members of the Rajya Sabha.
In 2001, the Parliament increased his
In Britain, on the other hand, the Prime Minister
sumptuary allowance from ₹1,500 to ₹3,000 per
should definitely be a member of the Lower
month.
House (House of Commons).

Oath, Term and Salary Powers and Functions of the Prime

Before the Prime Minister enters upon his office, Minister
the president administers to him the oaths of The powers and functions of Prime Minister can
office and secrecy. be studied under the following heads:

In his oath of office, the Prime Minister swears: In Relation to Council of Ministers
The Prime Minister enjoys the following powers
• to bear true faith and allegiance to the as head of the Union council of ministers:
Constitution of India,
• to uphold the sovereignty and integrity of • He recommends persons who can be
India, appointed as ministers by the president. The
• to faithfully and conscientiously discharge President can appoint only those persons as
the duties of his office, and ministers who are recommended by the
• to do right to all manner of people in Prime Minister
accordance with the Constitution and the • He allocates and reshuffles various
law, without fear or favour, affection or ill portfolios among the ministers.
will. • He can ask a minister to resign or advise the
President to dismiss him in case of
In his oath of secrecy, the Prime Minister swears difference of opinion.
that he will not directly or indirectly • He presides over the meeting of council of
communicate or reveal to any person(s) any ministers and influences its decisions.
matter that is brought under his consideration • He guides, directs, controls, and coordinates
or becomes known to him as a Union Minister the activities of all the ministers.
except as may be required for the due discharge • He can bring about the collapse of the
of his duties as such minister. council of ministers by resigning from office.
The term of the Prime Minister is not fixed and Since the Prime Minister stands at the head of
he holds office during the pleasure of the the council of ministers, the other ministers
president. However, this does not mean that the
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cannot function when the Prime Minister • He can recommend dissolution of the Lok
resigns or dies. Sabha to President at any time.
• He announces government policies on the
In other words, the resignation or death of an
floor of the House.
incumbent Prime Minister automatically
dissolves the council of ministers and thereby Other Powers & Functions
generates a vacuum. In addition to the above-mentioned three major
roles, the Prime Minister has various other
The resignation or death of any other minister,
roles. These are:
on the other hand, merely creates a vacancy
which the Prime Minister may or may not like to • He is the chairman of the NITI Aayog (which
fill. succeeded the planning commission),
National Integration Council, Inter State
In Relation to the President
Council, National Water Resources Council
The Prime Minister enjoys the following powers
in relation to the President: and some other bodies.
• He plays a significant role in shaping the
He is the principal channel of communication foreign policy of the country.
between the President and the council of • He is the chief spokesman of the Union
ministers. government.
It is the duty of the prime minister: • He is the crisis manager-in-chief at the
political level during emergencies.
• to communicate to the President all • As a leader of the nation, he meets various
decisions of the council of ministers relating sections of people in different states and
to the administration of the affairs of the receives memoranda from them regarding
Union and proposals for legislation; their problems, and so on.
• He is leader of the party in power.
• to furnish such information relating to the • He is political head of the services.
administration of the affairs of the Union and
proposals for legislation as the President Thus, the Prime Minister plays a very significant
may call for; and and highly crucial role in the politico-
administrative system of the country.
• if the President so requires, to submit for the Dr B.R. Ambedkar stated, ‘If any functionary
consideration of the council of ministers any under our constitution is to be compared with
matter on which a decision has been taken the US president, he is the Prime Minister and
by a minister but which has not been not the president of the Union’.
considered by the council.
Chief Ministers who became Prime
He advises the president with regard to the
Ministers
appointment of important officials like attorney
Six people–Morarji Desai, Charan Singh, V.P.
general of India, Comptroller and Auditor
Singh, P.V. Narasimha Rao, H.D. Deve Gowda and
General of India, chairman and members of the
Narendra Modi–became Prime Ministers after
UPSC, election commissioners, chairman and
being Chief Ministers of their respective States.
members of the finance commission and so on.
• Morarji Desai, Chief Minister of the erstwhile
In Relation to Parliament
Bombay State during 1952–56, became the
The Prime Minister is the leader of the Lower
first non-Congress Prime Minister in March
House. In this capacity, he enjoys the following
1977.
powers:
• Charan Singh, who succeeded him, was the
• He advises the President with regard to Chief Minister of the undivided Uttar
summoning and proroguing of the sessions Pradesh in 1967–1968 and again in 1970.
of the Parliament.
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• V.P. Singh, also from U.P., became Prime • H.D. Deve Gowda was Chief Minister of
Minister in the short lived National Front Karnataka when he was chosen to lead the
government (December 1989-November United Front government in June 1996.
1990). • Narendra Modi (BJP) was the Chief Minister
• P.V. Narasimha Rao, the first Prime Minister of Gujarat when he became the Prime
from South India, who held the post from Minister in May 2014. He served as the Chief
1991–1996, was Chief Minister of Andhra Minister of Gujarat for four times during
Pradesh between 1971–1973. 2001 to 2014.

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Chapter 23 – Chief Minister

In the scheme of parliamentary system of The Constitution does not require that a person
government provided by the Constitution, the must prove his majority in the legislative
governor is the nominal executive authority (de assembly before he is appointed as the Chief
jure executive) and the Chief Minister is the real Minister. The governor may first appoint him as
executive authority (de facto executive). the Chief Minister and then ask him to prove his
majority in the legislative assembly within a
In other words, the governor is the head of the
reasonable period.
state while the Chief Minister is the head of the
government. A person who is not a member of the state
legislature can be appointed as Chief Minister
Thus, the position of the Chief Minister at the
for six months, within which time, he should be
state level is analogous to the position of prime
elected to the state legislature, failing which he
minister at the Centre.
ceases to be the Chief Minister.
Appointment of Chief Minister According to the Constitution, the Chief Minister
The Constitution does not contain any specific may be a member of any of the two Houses of a
procedure for the selection and appointment of state legislature. Usually, Chief Ministers have
the Chief Minister. been selected from the Lower House (legislative
Article 164 only says that the Chief Minister assembly), but, on a number of occasions, a
shall be appointed by the governor. However, member of the Upper House (legislative council)
this does not imply that the governor is free to has also been appointed as Chief Minister.
appoint any one as the Chief Minister.
Oath, Term and Salary
In accordance with the conventions of the Before the Chief Minister enters his office, the
parliamentary system of government, the governor administers to him the oaths of office
governor has to appoint the leader of the and secrecy.
majority party in the state legislative assembly
In his oath of office, the Chief Minister swears:
as the Chief Minister.
• to bear true faith and allegiance to the
But when no party has a clear majority in the
Constitution of India,
assembly, then the governor may exercise his
• to uphold the sovereignty and integrity of
personal discretion in the selection and
India,
appointment of the Chief Minister.
• to faithfully and conscientiously discharge
In such a situation, the governor usually the duties of his office, and
appoints the leader of the largest party or • to do right to all manner of people in
coalition in the assembly as the Chief Minister accordance with the Constitution and the
and ask him to seek a vote of confidence in the law, without fear or favour, affection or ill
House within a month. will.
The governor may have to exercise his In his oath of secrecy, the Chief Minister swears
individual judgement in the selection and that he will not directly or indirectly
appointed of the Chief Minister when the Chief communicate or reveal to any person(s) any
Minister in office dies suddenly and there is no matter that is brought under his consideration
obvious successor. or becomes known to him as a state minister
except as may be required for the due discharge
However, on the death of a Chief Minister, the
of his duties as such minister.
ruling party usually elects a new leader and the
governor has no choice but to appoint him as The term of the Chief Minister is not fixed and he
Chief Minister. holds office during the pleasure of the governor.
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However, this does not mean that the governor He is the principal channel of communication
can dismiss him at any time. He cannot be between the governor and the council of
dismissed by the governor as long as he enjoys ministers. It is the duty of the Chief Minister:
the majority support in the legislative assembly.
• to communicate to the Governor of the state
But if he loses the confidence of the assembly, he
all decisions of the council of ministers
must resign or the governor can dismiss him.
relating to the administration of the affairs
The salary and allowances of the Chief Minister the state and proposals for legislation;
are determined by the state legislature. In • to furnish such information relating to the
addition to the salary and allowances, which are administration of the affairs of the state and
payable to a member of the state legislature, he proposals for legislation as the govern may
gets a sumptuary allowance, free call for; and
accommodation, travelling allowance, medical • if the governor so requires, to submit for the
facilities, etc. consideration of the council of ministers any
matter on which a decision has be taken by a
Powers and Functions of Chief
minister but which has not been considered
Minister by the council.
The powers and functions of the Chief Minister • He advises the governor with regard to the
can be studied under the following heads: appointment of important officials like
In Relation to Council of Ministers advocate general, chairman and members of
The Chief Minister enjoys the following powers the state public service commission, state
as head of the state council of ministers: election commissioner, and so on.

• The governor appoints only those persons as In Relation to State Legislature

ministers who are recommended by the The Chief Minister enjoys the following powers
Chief Minister. as the leader of the house:
• He allocates and reshuffles the portfolios • He advises the governor with regard to the
among ministers. summoning and proroguing of the sessions
• He can ask a minister to resign or advise the of the state legislature.
governor to dismiss him in case of difference • He can recommend the dissolution of the
of opinion. legislative assembly to the governor at any
• He presides over the meetings of the council time.
of ministers and influences its decisions. • He announces the government policies on
• He guides, directs, controls and coordinates the floor of the house.
the activities of all the ministers.
• He can bring about the collapse of the Other Powers and Functions
council of ministers by resigning from office. In addition, the Chief Minister also performs the
Since the Chief Minister is the head of the following functions:
council of ministers, his resignation or death • He is the chairman of the State Planning
automatically dissolves the council of Board.
ministers. • He acts as a vice-chairman of the concerned
The resignation or death of any other zonal council by rotation, holding office for a
minister, on the other hand, merely creates a period of one year at a time.
vacancy, which the Chief Minister may or • He is a member of the Inter-State Council
may not like to fill. and the Governing Council of NITI Aayog,
In Relation to the Governor both headed by the prime minister.
The Chief Minister enjoys the following powers • He is the chief spokesman of the state
in relation to the governor: government.
• He is the crisis manager-in-chief at the
political level during emergencies.
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• As a leader of the state, he meets various Thus, he plays a very significant and highly
sections of the people and receives crucial role in the state administration.
memoranda from them regarding their However, the discretionary powers enjoyed by
problems, and so on. the governor reduces to some extent the power,
• He is the political head of the services. authority, influence, prestige and role of the
Chief Minister in the state administration.

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Chapter 24 – Central Council of Ministers

As the Constitution of India provides for a • A member of either house of Parliament

parliamentary system of government modelled belonging to any political party who is
on the British pattern, the council of ministers disqualified on the ground of defection shall
headed by the prime minister is the real also be disqualified to be appointed as a
executive authority is our politico- minister. This provision was also added by
administrative system. the 91st Amendment Act of 2003.
• The ministers shall hold office during the
The principles of parliamentary system of
pleasure of the President.
government are not detailed in the Constitution,
• The council of ministers shall be collectively
but two Articles (74 and 75) deal with them in a
broad, sketchy and general manner. responsible to the Lok Sabha.
• The President shall administer the oaths of
Article 74 deals with the status of the council of office and secrecy to a minister.
ministers while Article 75 deals with the • A minister who is not a member of the
appointment, tenure, responsibility, Parliament (either house) for any period of
qualification, oath and salaries and allowances six consecutive months shall cease to be a
of the ministers. minister.
• The salaries and allowances of ministers
Constitutional Provisions
shall be determined by the Parliament.
Council of Ministers to aid and advise
President
• There shall be a Council of Ministers with the Conduct of Business of the Government of
Prime Minister at the head to aid and advise India
the President who shall, in the exercise of his • All executive action of the Government of
functions, act in accordance with such India shall be expressed to be taken in the
advice. However, the President may require name of the President.
the Council of Ministers to reconsider such
advice and the President shall act in • Orders and other instruments made and
accordance with the advice tendered after executed in the name of the President shall
such reconsideration. be authenticated in such manner as may be
specified in rules to be made by the
President.
• The advice tendered by Ministers to the
Further, the validity of an order or
President shall not be inquired into in any
instrument which is so authenticated shall
court.
not be called in question on the ground that
Other Provisions as to Ministers it is not an order or instrument made or
• The Prime Minister shall be appointed by the executed by the President.
President and the other Ministers shall be
• The President shall make rules for the more
appointed by the President on the advice of
convenient transaction of the business of the
the Prime Minister.
Government of India, and for the allocation
among Ministers of the said business.

• The total number of ministers, including the Duties of Prime Minister

Prime Minister, in the Council of Ministers It shall be the duty of the Prime Minister
shall not exceed 15% of the total strength of
• To communicate to the President all
the Lok Sabha. This provision was added by
decisions of the Council of Ministers relating
the 91st Amendment Act of 2003.

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to the administration of the affairs of the satisfaction of the President but it is the
Union and proposals for legislation satisfaction of the council of ministers with
whose aid and on whose advice the President
• To furnish such information relating to the exercises his powers and functions.’
administration of the affairs of the Union and
proposals for legislation as the President
Appointment of Ministers
may call for. The Prime Minister is appointed by the
President, while the other ministers are
• If the President so requires, to submit for the appointed by the President on the advice of the
Prime Minister. This means that the President
consideration of the Council of Ministers any
can appoint only those persons as ministers
matter on which a decision has been taken
who are recommended by the Prime minister.
by a Minister but which has not been
considered by the Council. Usually, the members of Parliament, either Lok
Sabha or Rajya Sabha, are appointed as
Rights of Ministers as Respects the Houses ministers. A person who is not a member of
either House of Parliament can also be
Every minister shall have the right to speak and
take part in the proceedings of either House, any appointed as a minister. But, within six months,
he must become a member (either by election or
joint sitting of the Houses and any Committee of
Parliament of which he may be named a by nomination) of either House of Parliament,
otherwise, he ceases to be a minister.
member.
But he shall not be entitled to vote. A minister who is a member of one House of
Parliament has the right to speak and to take
Nature of Advice by Ministers part in the proceedings of the other House also,
Article 74 provides for a council of ministers but he can vote only in the House of which he is
with the Prime Minister at the head to aid and a member.
advise the President in the exercise of his
functions.
Oath and Salary of Ministers
Before a minister enters upon his office, the
The 42nd and 44th Constitutional Amendment president administers to him the oaths of office
Acts have made the advice binding on the and secrecy. In his oath of office, the minister
President. swears:
Further, the nature of advice tendered by • to bear true faith and allegiance to the
ministers to the President cannot be enquired Constitution of India,
by any court. This provision emphasises the • to uphold the sovereignty and integrity of
intimate and the confidential relationship India,
between the President and the ministers. • to faithfully and conscientiously discharge
In 1971, the Supreme Court held that ‘even after the duties of his office, and
the dissolution of the Lok Sabha, the council of • to do right to all manner of people in
ministers does not cease to hold office. Article accordance with the Constitution and the
74 is mandatory and, therefore, the president law, without fear or favour, affection or ill
cannot exercise the executive power without will.
the aid and advise of the council of ministers. In his oath of secrecy, the minister swears that
Any exercise of executive power without the aid he will not directly or indirectly communicate or
and advice will be unconstitutional as being reveal to any person(s) any matter that is
violative of Article 74’. brought under his consideration or becomes
Again in 1974, the court held that ‘wherever the known to him as a Union minister except as may
Constitution requires the satisfaction of the be required for the due discharge of his duties
President, the satisfaction is not the personal as such minister.

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The salaries and allowances of ministers are It is the duty of every minister to stand by
determined by Parliament from time to time. cabinet decisions and support them both within
and outside the Parliament.
The Salaries and Allowances of Ministers Act,
1952, has been passed for this purpose. If any minister disagrees with a cabinet decision
and is not prepared to defend it, he must resign.
A minister gets the salary and allowances that
are payable to a member of Parliament. Several ministers have resigned in the past
owing to their differences with the cabinet.
Additionally, he gets a sumptuary allowance
(according to his rank), free accommodation, For example, Dr B.R. Ambedkar resigned
travelling allowance, medical facilities, etc. because of his differences with his colleagues on
the Hindu Code Bill in 1951.
In 2001, the sumptuary allowance for the prime
minister was raised from ₹1,500 to ₹3,000 per C.D. Deshmukh resigned due to his differences
month, for a cabinet minister from ₹1,000 to on the policy of reorganisation of states.
₹2,000 per month, for a minister of state from
Arif Mohammed Khan resigned due to his
₹500 to ₹1,000 per month and for a deputy
opposition to the Muslim Women (Protection of
minister from ₹300 to ₹600 per month.
Rights on Divorce) Act, 1986.
Responsibility of Ministers Individual Responsibility
Collective Responsibility
The fundamental principle underlying the Article 75 also contains the principle of
working of parliamentary system of individual responsibility.
government is the principle of collective It states that the ministers hold office during the
responsibility. pleasure of the president, which means that the
Article 75 clearly states that the council of President can remove a minister even at a time
ministers is collectively responsible to the Lok when the council of ministers enjoys the
Sabha. This means that all the ministers own confidence of the Lok Sabha.
joint responsibility to the Lok Sabha for all their However, the President removes a minister only
acts of omission and commission. They work as on the advice of the Prime Minister.
a team and swim or sink together.
In case of a difference of opinion or
When the Lok Sabha passes a no-confidence dissatisfaction with the performance of a
motion against the council of ministers, all the minister, the Prime Minister can ask him to
ministers have to resign including those resign or advice the President to dismiss him.
ministers who are from the Rajya Sabha.
By exercising this power, the Prime Minister can
Alternatively, the council of ministers can advise ensure the realisation of the rule of collective
the president to dissolve the Lok Sabha on the responsibility.
ground that the House does not represent the
views of the electorate faithfully and call for In this context, Dr B.R. Ambedkar observed:
fresh elections. “Collective responsibility can be achieved only
The President may not oblige the council of through the instrumentality of the Prime
ministers that has lost the confidence of the Lok Minister. Therefore, unless and until we create
Sabha. that office and endow that office with statutory
authority to nominate and dismiss ministers,
The principle of collective responsibility also there can be no collective responsibility.”
means that the Cabinet decisions bind all
cabinet ministers (and other ministers) even if No Legal Responsibility
they differed in the cabinet meeting. In Britain, every order of the King for any public
act is countersigned by a minister. If the order is
in violation of any law, the minister would be
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held responsible and would be liable in the cabinet ministers do. However, they are not
court. The legally accepted phrase in Britain is, members of the cabinet and do not attend the
“The king can do no wrong.” Hence, he cannot be cabinet meetings unless specially invited when
sued in any court. something related to their ministries/
departments are considered by the cabinet.
In India, on the other hand, there is no provision
in the Constitution for the system of legal Next in rank are the deputy ministers. They are
responsibility of a minister. It is not required not given independent charge of
that an order of the President for a public act ministries/departments. They are attached to
should be countersigned by a minister. the cabinet ministers or ministers of state and
Moreover, the courts are barred from enquiring assist them in their administrative, political, and
into the nature of advice rendered by the parliamentary duties. They are not members of
ministers to the president. the cabinet and do not attend cabinet meetings.

Composition of the Council of At times, the council of ministers may also

Ministers include a deputy prime minister. The deputy
The council of ministers consists of three prime ministers are appointed mostly for
categories of ministers, namely, cabinet political reasons.
ministers, ministers of state, and deputy The first deputy prime minister was
ministers. Vallabhbhai Patel, who was also home minister
The difference between them lies in their in Jawaharlal Nehru's cabinet. He occupied the
respective ranks, emoluments, and political post for 3 years until his death in 1950.
importance. The post was vacant until Morarji Desai became
At the top of all these ministers stands the Prime the second deputy prime minister in 1967.
Minister–the supreme governing authority of L. K. Advani served as the seventh deputy prime
the country. minister in Atal Bihari Vajpayee's cabinet from
The cabinet ministers head the important 2002 to 2004.
ministries of the Central government like home, The post has been vacant since 2004.
defence, finance, external affairs and so forth.
Council of Ministers vs Cabinet
They are members of the cabinet, attend its The words ‘council of ministers’ and ‘cabinet’
meetings and play an important role in deciding are often used interchangeably though there is a
policies. Thus, their responsibilities extend over definite distinction between them.
the entire gamut of Central government.
They differ from each other in respects of
The ministers of state can either be given composition, functions, and role.
independent charge of ministries/ departments
or can be attached to cabinet ministers. Council of Cabinet
ministers
In case of attachment, they may either be given It is a wider body It is a smaller body
the charge of departments of the ministries consisting of 60 to 70 consisting of 15 to 20
headed by the cabinet ministers or allotted ministers. ministers.
specific items of work related to the ministries It includes all the It includes the cabinet
headed by cabinet ministers. In both the cases, three categories of ministers only. Thus,
they work under the supervision and guidance ministers, that is, it is a part of the
as well as under the overall charge and cabinet ministers, council of ministers.
responsibility of the cabinet ministers. ministers of state,
and deputy
In case of independent charge, they perform the ministers.
same functions and exercise the same powers in It does not meet, as a It meets, as a body,
relation to their ministries/departments as body, to transact frequently and usually
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government once in a week to It is collectively It enforces the

business. It has no deliberate and take responsible to the collective
collective functions. decisions regarding Lower House of the responsibility of the
the transaction of Parliament. council of ministers to
government business. the Lower House of
It is vested with all It exercises, in Parliament.
powers but in practice, the powers Role of Cabinet
theory. of the council of
• It is the highest decision-making authority in
ministers and thus,
our politico-administrative system.
acts for the latter.
Its functions are It directs the council • It is the chief policy formulating body of the
determined by the of ministers by taking Central government.
cabinet. policy decisions which • It is the supreme executive authority of the
are binding on all Central government.
ministers. • It is chief coordinator of Central
It implements the It supervises the administration.
decisions taken by implementation of its • It is an advisory body to the president and its
the cabinet. decisions by the advice is binding on him.
council of ministers. • It is the chief crisis manager and thus deals
It is a constitutional It was inserted in
with all emergency situations.
body, dealt in detail Article 352 of the
by the Articles 74 Constitution in 1978 • It deals with all major legislative and
and 75 of the by the 44th financial matters.
Constitution. Its size Constitutional • It exercises control over higher
and classification Amendment Act. appointments like constitutional authorities
are, however, not Thus, it did not find a and senior secretariat administrators.
mentioned in the place in the original
Constitution. text of the Kitchen Cabinet
Its size is determined Constitution. The cabinet, a small body consisting of the prime
by the prime Now also, Article 352 minister as its head and some 15 to 20 most
minister according only defines the important ministers, is the highest decision-
to the exigencies of cabinet saying that it making body in the formal sense.
the time and is ‘the council
requirements of the consisting of the However, a still smaller body called the ‘Inner
situation. prime minister and Cabinet’ or ‘Kitchen Cabinet’ has become the
Its classification into other ministers of real centre of power.
a three-tier body is cabinet rank
This informal body consists of the Prime
based on the appointed under
conventions of Article 75’ and does Minister and two to four influential colleagues
parliamentary not describe its in whom he has faith and with whom he can
government as powers and functions. discuss every problem.
developed in Britain. In other words, its role It advises the prime minister on important
It has, however, got a in our politico-
political and administrative issues and assists
legislative sanction. administrative system
him in making crucial decisions.
Thus, the Salaries is based on the
and Allowances Act conventions of It is composed of not only cabinet ministers but
of 1952 defines a parliamentary also outsiders like friends and family members
‘minister’ as a government as of the prime minister.
‘member of the developed in Britain.
council of ministers, Every prime minister in India has had his ‘Inner
by whatever name Cabinet’–a circle within a circle. During the era
called, and includes a of Indira Gandhi, the ‘Inner Cabinet’ which came
deputy minister’. to be called the ‘Kitchen Cabinet’ was
particularly powerful.
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The prime ministers have resorted to the device • It reduces the authority and status of the
of ‘inner cabinet’ (extra-constitutional body) cabinet as the highest decision-making body.
due to its merits, namely: • It circumvents the legal process by allowing
outside persons to play an influential role in
• It being a small unit, is much more efficient
the government functioning.
decision-making body than a large cabinet.
• It can meet more often and deal with The phenomenon of ‘kitchen cabinet’ (where
business much more expeditiously than the decisions are cooked and placed before the
large cabinet. cabinet for formal approval) is not unique to
• It helps the Prime Minister in maintaining India.
secrecy in making decisions on important
It also exists in USA and Britain and is quite
political issues.
powerful in influencing government decisions
However, it has many demerits also. Thus, there.

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Chapter 25 – State Council of Ministers

As the Constitution of India provides for a the welfare of the scheduled castes and
parliamentary system of government in the backward classes or any other work.
states on the Union pattern, the council of
ministers headed by the chief minister is the
real executive authority in the politico-
administrative system of a state.
The council of ministers in the states is
constituted and function in the same way as the • The total number of ministers, including the
council of ministers at the Centre. chief minister, in the council of ministers in
a state shall not exceed 15 per cent of the
The principles of parliamentary system of total strength of the legislative assembly of
government are not detailed in the Constitution; that state. But, the number of ministers,
but two Articles (163 and 164) deal with them including the chief minister, in a state shall
in a broad, sketchy and general manner. not be less than 12.
Article 163 deals with the status of the council
of ministers while Article 164 deals with the
appointment, tenure, responsibility, • A member of either House of state
qualifications, oath and salaries and allowances legislature belonging to any political party
of the ministers. who is disqualified on the ground of
defection shall also be disqualified to be
Council of Ministers to aid and advise appointed as a minister.
Governor • The ministers shall hold office during the
• There shall be a Council of Ministers with the pleasure of the Governor.
Chief Minister as the head to aid and advise • The council of ministers shall be collectively
the Governor in the exercise of his functions, responsible to the state Legislative
except in so far as he is required to exercise Assembly.
his functions in his discretion. • The Governor shall administer the oaths of
• If any question arises whether a matter falls office and secrecy to a minister.
within the Governor’s discretion or not,
decision of the Governor shall be final, and • A minister who is not a member of the state
the validity of anything done by the legislature for any period of six consecutive
Governor shall not be called in question on months shall cease to be a minister.
the ground that he ought or ought not to
have acted in his discretion. ✓ The salaries and allowances of ministers
• The advice tendered by Ministers to the shall be determined by the state legislature.
Governor shall not be inquired into in any
court.
Conduct of Business of the Government of a
Other Provisions as to Ministers State
• The Chief Minister shall be appointed by the • All executive action of the Government of a
Governor and the other Ministers shall be State shall be expressed to be taken in the
appointed by the Governor on the advice of name of the Governor.
the Chief Minister. • Orders and other instruments made and
However, in the states of Chhattisgarh, executed in the name of the Governor shall
Jharkhand, Madhya Pradesh and Odisha, be authenticated in such manner as may be
there shall be a Minister in charge of tribal specified in rules to be made by the
welfare who may in addition be in charge of Governor.
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Further, the validity of an order or Further, the nature of advice tendered by

instrument which is so authenticated shall ministers to the governor cannot be enquired by
not be called in question on the ground that any court. This provision emphasises the
it is not an order or instrument made or intimate and the confidential relationship
executed by the Governor. between the governor and the ministers.
The Governor shall make rules for the more
In 1971, the Supreme Court ruled that a council
convenient transaction of the business of the
of ministers must always exist to advise the
government of the state, and for the
governor, even after the dissolution of the state
allocation among ministers of the said
legislative assembly or resignation of a council
business in so far as it is not business with
of ministers. Hence, the existing ministry may
respect to which the Governor is required to
continue in the office until its successor assumes
act in his discretion.
charge.
Duties of Chief Minister
Again in 1974, the Court clarified that except in
It shall be the duty of the Chief Minister of each
spheres where the governor is to act in his
state
discretion, the governor has to act on the aid and
• To communicate to the governor of the state advice of the council of ministers in the exercise
all decisions of the council of ministers of his powers and functions. He is not required
relating to the administration of the affairs to act personally without the aid and advice of
of the state and proposals for legislation. the council of ministers or against the aid and
• To furnish such information relating to the advice of the council of ministers.
administration of the affairs of the state and
Wherever the Constitution requires the
proposals for legislation as the governor
satisfaction of the governor, the satisfaction is
may call for.
not the personal satisfaction of the governor but
• If the governor so requires, to submit for the it is the satisfaction of the council of ministers.
consideration of the council of ministers any
matter on which a decision has been taken Appointment of Ministers
by a minister but which has not been The chief minister is appointed by the governor.
considered by the council. The other ministers are appointed by the
governor on the advice of the chief minister.
Rights of Ministers as Respects the Houses
This means that the governor can appoint only
Every minister shall have the right to speak and
those persons as ministers who are
take part in the proceedings of the Assembly
recommended by the chief minister.
(and also the Council where it exists) and any
Committee of the State Legislature of which he But there should be a tribal welfare minister in
may be named a member. But he shall not be Chhattisgarh, Jharkhand, Madhya Pradesh and
entitled to vote. Odisha.
Nature of Advice by Ministers Originally, this provision was applicable to
Article 163 provides for a council of ministers Bihar, Madhya Pradesh and Odisha. The 94th
with the chief minister at the head to aid and Amendment Act of 2006 freed Bihar from the
advise the governor in the exercise of his obligation of having a tribal welfare minister as
functions except the discretionary ones. there are no Scheduled Areas in Bihar now and
the fraction of population of the Scheduled
If any question arises whether a matter falls Tribes is very small.
within the governor’s discretion or not, the
decision of the governor is final and the validity The same Amendment also extended the above
of anything done by him cannot be called in provision to the newly formed states of
question on the ground that he ought or ought Chhattisgarh and Jharkhand.
not to have acted in his discretion.

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Usually, the members of the state legislature, Responsibility of Ministers

either the legislative assembly or the legislative Collective Responsibility
council, are appointed as ministers. The fundamental principle underlying the
A person who is not a member of either House working of parliamentary system of
of the state legislature can also be appointed as government is the principle of collective
a minister. But, within six months, he must responsibility.
become a member (either by election or by Article 164 clearly states that the council of
nomination) of either House of the state ministers is collectively responsible to the
legislature, otherwise, he ceases to be a legislative assembly of the state.
minister.
This means that all the ministers own joint
A minister who is a member of one House of the responsibility to the legislative assembly for all
state legislature has the right to speak and to their acts of omission and commission.
take part in the proceedings of the other House.
But he can vote only in the House of which he is They work as a team and swim or sink together.
a member. When the legislative assembly passes a no-
Oath and Salary of Ministers confidence motion against the council of
Before a minister enters upon his office, the ministers, all the ministers have to resign
governor administers to him the oaths of office including those ministers who are from the
and secrecy. In his oath of office, the minister legislative council.
swears: Alternatively, the council of ministers can advise
• to bear true faith and allegiance to the the governor to dissolve the legislative
Constitution of India, assembly on the ground that the House does not
represent the views of the electorate faithfully
• to uphold the sovereignty and integrity of
and call for fresh elections.
India,
• to faithfully and conscientiously discharge The governor may not oblige the council of
the duties of his office, and ministers which has lost the confidence of the
• to do right to all manner of people in legislative assembly.
accordance with the Constitution and the
The principle of collective responsibility also
law, without fear or favour, affection or ill-
mean that the cabinet decisions bind all cabinet
will.
ministers (and other ministers) even if they
In his oath of secrecy, the minister swears that deferred in the cabinet meeting.
he will not directly or indirectly communicate or
It is the duty of every minister to stand by the
reveal to any person(s) any matter that is
cabinet decisions and support them both within
brought under his consideration or becomes
and outside the state legislature.
known to him as a state minister except as may
be required for the due discharge of his duties If any minister disagrees with a cabinet decision
as such minister. and is not prepared to defend it, he must resign.
The salaries and allowances of ministers are Individual Responsibility
determined by the state legislature from time to Article 164 also contains the principle of
time. A minister gets the salary and allowances individual responsibility.
which are payable to a member of the state
It states that the ministers hold office during the
legislature.
pleasure of the governor. This means that the
Additionally, he gets a sumptuary allowance governor can remove a minister at a time when
(according to his rank), free accommodation, the council of ministers enjoys the confidence of
travelling allowance, medical facilities, etc. the legislative assembly. But the governor can

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remove a minister only on the advice of the chief policies. Thus, their responsibilities extend over
minister. the entire gamut of state government.
In case of difference of opinion or dissatisfaction The ministers of state can either be given
with the performance of a minister, the chief independent charge of departments or can be
minister can ask him to resign or advice the attached to cabinet ministers. However, they are
governor to dismiss him. not members of the cabinet and do not attend
the cabinet meetings unless specially invited
By exercising this power, the chief minister can
when something related to their departments
ensure the realisation of the rule of collective
are considered by the cabinet.
responsibility.
Next in rank are the deputy ministers. They are
No Legal Responsibility
not given independent charge of departments.
As at the Centre, there is no provision in the
They are attached to the cabinet ministers and
Constitution for the system of legal
assist them in their administrative, political and
responsibility of the minister in the states.
parliamentary duties. They are not members of
It is not required that an order of the governor the cabinet and do not attend cabinet meetings.
for a public act should be countersigned by a
At times, the council of ministers may also
minister.
include a deputy chief minister. The deputy
Moreover, the courts are barred from enquiring chief ministers are appointed mostly for local
into the nature of advice rendered by the political reasons.
ministers to the governor.
Cabinet
Composition of the Council of A smaller body called cabinet is the nucleus of
Ministers the council of ministers. It consists of only the
The Constitution does not specify the size of the cabinet ministers. It is the real centre of
state council of ministers or the ranking of authority in the state government.
ministers. They are determined by the chief It performs the following role:
minister according to the exigencies of the time
and requirements of the situation. • It is the highest decision-making authority in
the politico-administrative system of a state.
Like at the Centre, in the states too, the council • It is the chief policy formulating body of the
of ministers consists of three categories of state government.
ministers, namely, cabinet ministers, ministers
• It is the supreme executive authority of the
of state, and deputy ministers. The difference
state government.
between them lies in their respective ranks,
• It is the chief coordinator of state
emoluments, and political importance. At the
administration.
top of all these ministers stands the chief
• It is an advisory body to the governor.
minister–supreme governing authority in the
• It is the chief crisis manager and thus deals
state.
with all emergency situations.
The cabinet ministers head the important • It deals with all major legislative and
departments of the state government like home, financial matters.
education, finance, agriculture and so forth. • It exercises control over higher
appointments like constitutional authorities
They are members of the cabinet, attend its
and senior secretariat administrators.
meetings and play an important role in deciding
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Chapter 26 – Legislature (NCERT)

Why do we need a Parliament? Andhra Pradesh, Bihar, Karnataka,

• Legislature is not merely a law-making body. Maharashtra, Telangana and Uttar
Law making is but one of the functions of the Pradesh
legislature. • Countries with large size and much diversity
• It is the centre of all democratic political usually prefer to have two houses of the
process. national legislature to give representation to
• It is packed with action, walkouts, protests, all sections in the society and to give
demonstration, unanimity, concern and co- representation to all geographical regions or
operation. parts of the country.
• Indeed, a genuine democracy is • A bicameral legislature has one more
inconceivable without a representative, advantage. A bicameral legislature makes it
efficient and effective legislature. possible to have every decision
• The legislature also helps people in holding reconsidered. Every decision taken by one
the representatives accountable. This is house goes to the other house for its
indeed, the very basis of representative decision. This means that every bill and
democracy. policy would be discussed twice.
• In most democracies, legislatures are losing • This ensures a double check on every
central place to the executive. In India too, matter. Even if one house takes a decision in
the Cabinet initiates policies, sets the agenda haste, that decision will come for discussion
for governance and carries them through. in the other house and reconsideration will
This has led some critics to remark that the be possible.
Parliament has declined. Rajya Sabha
• But even very strong cabinets must retain • The Rajya Sabha represents the States of
majority in the legislature. A strong leader India. It is an indirectly elected body.
has to face the Parliament and answer to the • Residents of the State elect members to State
satisfaction of the Parliament. Herein lies the Legislative Assembly. The elected members
democratic potential of the Parliament. of State Legislative Assembly in turn elect
• It is recognised as one of the most the members of Rajya Sabha.
democratic and open forum of debate. • Two different principles of representation in
• On account of its composition, it is the most the second chamber:
representative of all organs of government. o To give equal representation to all the
• It is above all, vested with the power to parts of the country irrespective of their
choose and dismiss the government. size or population. We may call this as
symmetrical representation.
Why do we need two houses of o Parts of the country may be given
Parliament? representation according to their
• The term ‘Parliament’ refers to the national population means that regions or parts
legislature. The legislature of the States is having larger population would have
described as State legislature. more representatives in the second
• The Parliament in India has two houses. chamber than regions having less
When there are two houses of the population.
legislature, it is called a bicameral • The number of members to be elected from
legislature. each State has been fixed by the fourth
• The two Houses of the Indian Parliament are schedule of the Constitution.
the Council of States or the Rajya Sabha • Members of the Rajya Sabha are elected for
and the House of People or Lok Sabha. a term of six years. They can get re-elected.
• The Constitution has given the States the • All members of the Rajya Sabha do not
option of establishing either a unicameral or complete their terms at the same time. Every
bicameral legislature. At present only six two years, one third members of the Rajya
States have a bicameral legislature i.e.,
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Sabha complete their term and elections are substance and even the timing of the bill are
held for those one third seats only. decided by the Cabinet.
• Thus, the Rajya Sabha is never fully No major bill is introduced in the Parliament
dissolved. Therefore, it is called the without the approval of the Cabinet.
permanent House of the Parliament. Members other than ministers can also
• The advantage of this arrangement is that introduce bills but these have no chance of
even when the Lok Sabha is dissolved and being passed without the support of the
elections are yet to take place, the meeting of government.
the Rajya Sabha can be called and urgent • Control of Executive and ensuring its
business can be conducted. accountability: Perhaps the most vital
• Apart from the elected members, Rajya function of the Parliament is to ensure that
Sabha also has twelve nominated members. the executive does not overstep its authority
The President nominates these members. and remains responsible to the people who
These nominations are made from among have elected them
those persons who have made their mark in • Financial Function: Government is about
the fields of literature, arts, social service, spending a lot of money on various matters.
science etc. Every government raises resources through
taxation.
Lok Sabha However, in a democracy, legislature
• The Lok Sabha and the State Legislative controls taxation and the way in which
Assemblies are directly elected by the money is used by the government.
people. If the Government of India proposes to
• For the purpose of election, the entire introduce any new tax, it has to get the
country (State, in case of State Legislative approval of the Lok Sabha.
Assembly) is divided into territorial The Financial powers of the Parliament,
constituencies of roughly equal population. involve grant of resources to the
• One representative is elected from each government to implement its programmes.
constituency through universal, adult The government has to give an account to
suffrage where the value of vote of every the Legislature about the money it has spent
individual would be equal to another. and resources that it wishes to raise.
• At present there are 543 constituencies. This The legislature also ensures that the
number has not changed since 1971 census. government does not misspend or
• The Lok Sabha is elected for a period of five overspend. This is done through the budget
years. This is the maximum. and annual financial statements.
• Before the completion of five years, the Lok • Representation: Parliament represents the
Sabha can be dissolved if no party or divergent views of members from different
coalition can form the government or if the regional, social, economic, religious groups
Prime Minister advices the President to of different parts of the country.
dissolve the Lok Sabha and hold fresh • Debating Function: The Parliament is the
elections. highest forum of debate in the country.
There is no limitation on its power of
What does the Parliament do? discussion. Members are free to speak on
Apart from law making, the Parliament is any matter without fear. This makes it
engaged in many other functions. The functions possible for the Parliament to analyse any or
of the Parliament are as mentioned below: every issue that faces the nation.
• Legislative Function: The Parliament These discussions constitute the heart of
enacts legislations for the country. Despite democratic decision making.
being the chief law-making body, the • Constituent Function: The Parliament has
Parliament often merely approves the power of discussing and enacting
legislations. changes to the Constitution. The constituent
The actual task of drafting the bill is powers of both the houses are similar.
performed by the bureaucracy under the All constitutional amendments have to be
supervision of the minister concerned. The approved by a special majority of both
Houses.
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• Electoral functions: The Parliament also • In all other spheres, including passing of
performs some electoral functions. It elects non-money bills, constitutional
the President and Vice President of India. amendments, and impeaching the President
• Judicial functions: The judicial functions of and removing the Vice President the powers
the Parliament include considering the of Lok Sabha and Rajya Sabha are co-equal.
proposals for removal of President, Vice-
President and Judges of High Courts and How does the Parliament make laws?
Supreme Court. The basic function of any legislature is to make
laws for its people.
Powers of Rajya Sabha
In a bicameral legislature, there is some A definite procedure is followed in the process
difference between the powers of the two of making law. Some of the procedures of law
Houses, they are: making are mentioned in the Constitution, while
some have evolved from conventions.

Source: NCERT

Special Powers of Rajya Sabha

• Rajya Sabha is an institutional mechanism to
provide representation to the States. Its
purpose is to protect the powers of the
States. Therefore, any matter that affects the
States must be referred to it for its consent Source: NCERT
and approval. Thus, if the Union Parliament
wishes to remove a matter from the State list • A bill is a draft of the proposed law. There
(over which only the State Legislature can can be different types of bills. When a non-
make law) to either the Union List or minister proposes a bill, it is called private
Concurrent List in the interest of the nation, member’s Bill. A bill proposed by a minister
the approval of the Rajya Sabha is necessary. is described as Government Bill.
• The Rajya Sabha cannot initiate, reject or
amend money bills.
• The Council of Ministers is responsible to the
Lok Sabha and not Rajya Sabha. Therefore,
Rajya Sabha can criticise the government but
cannot remove it because the Rajya Sabha is
elected by the MLAs and not directly by the
people. Therefore, the Constitution stopped
short of giving certain powers to the Rajya
Sabha.
Source: NCERT
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• The draft of any bill is prepared by the support of the majority party. In such a
concerned ministry. situation, parliamentary democracy may slip
• A bill may be introduced in the Lok Sabha or into Cabinet dictatorship, where the Cabinet
Rajya Sabha by a member of the House (but leads and the House merely follows.
often a minister responsible for the subject
Only if the Parliament is active and vigilant, can
introduces the bill)
it keep regular and effective check on the
• A money bill can be introduced only in Lok executive.
Sabha. Once passed there, it is sent to the
Rajya Sabha. There are many ways in which the Parliament
can control the executive.
Instruments of Parliamentary Control
The legislature in parliamentary system ensures
executive accountability at various stages:
policy making, implementation of law or policy
and during and postimplementation stage.
Source: NCERT
The legislature does this through the use of a
• A large part of the discussion on the bills variety of devices:
takes place in the committees. The
recommendation of the committee is then • Deliberation and discussion
sent to the House. That is why committees • Approval or Refusal of laws
are referred to as miniature legislatures. • Financial control
This is the second stage in the law-making • No confidence motion
process. Deliberation and discussion
• In the third and final stage, the bill is voted • During the law-making process, members of
upon. If a non-money bill is passed by one the legislature get an opportunity to
House, it is sent to the other House where it deliberate on the policy direction of the
goes through exactly the same procedure. executive and the ways in which policies are
• A bill has to be passed by both Houses for implemented.
enactment. If there is disagreement between • Apart from deliberating on bills, control may
the two Houses on the proposed bill, attempt also be exercised during the general
is made to resolve it through Joint Session of discussions in the House.
Parliament.
• The Question Hour, which is held every day
• In case of a money bill, the Rajya Sabha can during the sessions of Parliament, where
either approve the bill or suggest changes Ministers have to respond to searching
but cannot reject it. If it takes no action questions raised by the members; Zero Hour
within 14 days the bill is deemed to have where members are free to raise any matter
been passed. Amendments to the bill, that they think is important (though the
suggested by Rajya Sabha, may or may not ministers are not bound to reply), half-an –
be accepted by the Lok Sabha. hour discussion on matters of public
• When a bill is passed by both Houses, it is importance, adjournment motion etc. are
sent to the President for his assent. The some instruments of exercising control.
assent of the President results in the • Members of Parliament have shown great
enactment of a bill into a law. interest in question hour and maximum
How does the Parliament control the attendance is recorded during this time.
• Most of the questions aim at eliciting
Executive? information from the government on issues
In a parliamentary democracy, the executive is of public interest such as, price rise,
drawn from the party or a coalition of parties availability of food grains, atrocities on
that has a majority in Lok Sabha. weaker sections of the society, riots, black-
It is not difficult for the executive to exercise marketing etc.
unlimited and arbitrary powers with the

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• This gives the members an opportunity to Auditor General and Public Accounts
criticise the government, and represent the committees. But the legislative control is not
problems of their constituencies. only aimed at financial propriety.
• The discussions during the question hour • The legislature is concerned about the
are so heated that it is not uncommon to see policies of the government that are reflected
members raise their voice, walk to the well in the budget. Through financial control, the
of the house or walk out in protest to make legislature controls the policy of the
their point. government.
• This results in considerable loss of
No Confidence Motion
legislative time. At the same time, we must
remember that many of these actions are • The most powerful weapon that enables the
political techniques to gain concessions from Parliament to ensure executive
government and in the process force accountability is the no-confidence motion.
executive accountability. • As long as the government has the support
of its party or coalition of parties that have a
Approval and ratification of laws majority in the Lok Sabha, the power of the
• Parliamentary control is also exercised House to dismiss the government is fictional
through its power of ratification. rather than real.
• A bill can become a law only with the • However, after 1989, several governments
approval of the Parliament. A government have been forced to resign due to lack of
that has the support of a disciplined majority confidence of the house. Each of these
may not find it difficult to get the approval of governments lost the confidence of the Lok
the Legislature. Such approvals however, Sabha because they failed to retain the
cannot be taken for granted. support of their coalition partners.
• They are the products of intense bargaining
What do the Committees of Parliament do?
and negotiations amongst the members of
ruling party or coalition of parties and even • Parliamentary committees play a vital role
government and opposition. not merely in law making, but also in the
• If the government has majority in Lok Sabha day-to-day business of the House.
but not in the Rajya Sabha, the government • Since the Parliament meets only during
will be forced to make substantial sessions, it has very limited time at its
concessions to gain the approval of both the disposal. The making of law for instance
Houses. requires in-depth study of the issue under
consideration.
Financial control
• Parliamentary committees perform other
• Financial resources to implement the
important functions like studying the
programmes of the government are granted
demands for grants made by various
through the budget.
ministries, looking into expenditure
• Preparation and presentation of budget for incurred by various departments,
the approval of the legislature is investigating cases of corruption etc.
constitutional obligation of the government.
• Since 1983, India has developed a system of
This obligation allows the legislature to
parliamentary standing committees. There
exercise control over the purse strings of the
are over twenty such departmentally related
government.
committees. Standing Committees supervise
• The legislature may refuse to grant the work of various departments, their
resources to the government. This seldom budget, their expenditure and bills that
happens because the government ordinarily come up in the house relating to the
enjoys support of the majority in the department.
parliamentary system.
• Apart from standing committees, the Joint
• Nevertheless, before granting money the Parliamentary Committees have occupied a
Lok Sabha can discuss the reasons for which position of eminence in our country. Joint
the government requires money. It can Parliamentary Committees (JPCs) can be set
enquire into cases of misuse of funds on the up for the purpose of discussing a particular
basis of the report of the Comptroller and bill, like the joint committee to discuss bill,
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or for the purpose of investigating financial • Defection means if a member remains

irregularities. Members of these committees absent in the House when asked by the party
are selected from both Houses. leadership to remain present or votes
• The committee system has reduced the against the instructions of the party or
burden on the Parliament. Many important voluntarily leaves the membership of the
bills have been referred to committees. party
• The Parliament has merely approved the • Experience of the past twenty years shows
work done in the committees with few that the anti-defection amendment has not
occasional alterations. The Parliament been able to curb defections, but it has given
rarely rejects the suggestions made by the additional powers to the party leadership
committees. and the presiding officers of the legislatures
over the members.
How does the Parliament regulate
itself? Conclusion
• The Constitution itself has made certain Parliament is truly a rainbow of colourful
provisions to ensure smooth conduct of dresses symbolising different regions of the
business. country. Members speak different languages in
• The presiding officer of the legislature is the the course of the proceedings. They come from
final authority in matters of regulating the various castes, religions and sects. They often
business of the legislature. fight bitterly.
• There is one more way in which the Many times, an impression is created that they
presiding officers control the behaviour of are wasting the time and money of the nation.
the members i.e., through the anti-defection
law. An amendment to the Constitution was But these same parliamentarians can effectively
made (52nd amendment act) in 1985 and It control the executive. They can express the
has also been subsequently modified by the interests of various sections of our society.
91st amendment. On account of its composition, Legislature is the
• There is an agreement among the parties most representative of all organs of
that a legislator who is elected on one party’s government.
ticket must be restricted from ‘defecting’ to
another party. The sheer presence of members of diverse social
• The presiding officer of the House is the backgrounds makes the legislatures more
authority who takes final decisions on all representative and potentially more responsive
such cases. If it is proved that a member has to people’s expectations.
‘defected’, then such member loses the In a parliamentary democracy, legislature, as a
membership of the House. Besides, such a body representing the wishes of the people
person is also disqualified from holding any occupies a high position of power and
political office like ministership, etc responsibility. Herein lies the democratic
potential of the Parliament.

********

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Chapter 27 – Parliament

The Parliament is the legislative organ of the House) and the House of Commons (Lower
Union government. It occupies a pre-eminent House).
and central position in the Indian democratic
By contrast, the American president is not an
political system due to adoption of the
integral part of the legislature. In USA, the
parliamentary form of government, also known
legislature, which is known as Congress,
as ‘Westminster’ model of government.
consists of the Senate (Upper House) and the
Articles 79 to 122 in Part V of the Constitution House of Representatives (Lower House).
deal with the organisation, composition,
The parliamentary form of government
duration, officers, procedures, privileges,
emphasises on the interdependence between
powers and so on of the Parliament.
the legislative and executive organs. Hence, we
Organisation of Parliament have the ‘President-in-Parliament’ like the
Under the Constitution, the Parliament of India ‘Crown-in- Parliament’ in Britain.
consists of three parts viz, the President, the The presidential form of government, on the
Council of States and the House of the People. other hand, lays stress on the separation of
In 1954, the Hindi names ‘Rajya Sabha’ and ‘Lok legislative and executive organs. Hence, the
Sabha’ were adopted by the Council of States American president is not regarded as a
and the House of People respectively. constituent part of the Congress.

The Rajya Sabha is the Upper House (Second Composition of the Two Houses
Chamber or House of Elders) and the Lok Sabha Composition of Rajya Sabha
is the Lower House (First Chamber or Popular The maximum strength of the Rajya Sabha is
House). fixed at 250, out of which, 238 are to be the
representatives of the states and union
The former represents the states and union
territories (elected indirectly) and 12 are
territories of the Indian Union, while the latter
nominated by the president.
represents the people of India as a whole.
Though the President of India is not a member
of either House of Parliament and does not sit in
the Parliament to attend its meetings, he is an
integral part of the Parliament. At present, the Rajya Sabha has 245 members.
Of these, 224 members represent the states, 8
This is because a bill passed by both the Houses members represent the union territories and 12
of Parliament cannot become law without the members are nominated by the president.
President’s assent.
The Fourth Schedule of the Constitution deals
He also performs certain functions relating to with the allocation of seats in the Rajya Sabha to
the proceedings of the Parliament, for example, the states and union territories.
he summons and pro-rogues both the Houses,
dissolves the Lok Sabha, addresses both the Representation of States
Houses, issues ordinances when they are not in The representatives of states in the Rajya Sabha
session, and so on. are elected by the elected members of state
In this respect, the framers of the Indian legislative assemblies.
Constitution relied on the British pattern rather The election is held in accordance with the
than the American pattern. system of proportional representation by
In Britain, the Parliament consists of the Crown means of the single transferable vote.
(King or Queen), the House of Lords (Upper
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The seats are allotted to the states in the Rajya Representation of States
Sabha on the basis of population. Hence, the
The representatives of states in the Lok Sabha
number of representatives varies from state to
are directly elected by the people from the
state. For example, Uttar Pradesh has 31
territorial constituencies in the states.
members while Tripura has 1 member only.
The election is based on the principle of
However, in USA, all states are given equal
universal adult franchise.
representation in the Senate irrespective of
their population. USA has 50 states and the Every Indian citizen who is above 18 years of
Senate has 100 members–2 from each state. age and who is not disqualified under the
provisions of the Constitution or any law is
Representation of Union Territories
eligible to vote at such election.
The representatives of each union territory in
The voting age was reduced from 21 to 18 years
the Rajya Sabha are indirectly elected by
by the 61st Constitutional Amendment Act,
members of an electoral college specially
1988.
constituted for the purpose.
Representation of Union Territories
This election is also held in accordance with the
system of proportional representation by The Constitution has empowered the
means of the single transferable vote. Parliament to prescribe the manner of choosing
the representatives of the union territories in
Out of the eight union territories, only three
the Lok Sabha.
(Delhi, Puducherry and Jammu & Kashmir) have
representation in Rajya Sabha. Accordingly, the Parliament has enacted the
Union Territories (Direct Election to the House
The populations of other five union territories
of the People) Act, 1965, by which the members
are too small to have any representative in the
of Lok Sabha from the union territories are also
Rajya Sabha.
chosen by direct election.
Nominated Members
Nominated Members
The president nominates 12 members to the
The president can nominate two members from
Rajya Sabha from people who have special
the Anglo-Indian community if the community
knowledge or practical experience in art,
is not adequately represented in the Lok Sabha.
literature, science and social service.
Originally, this provision was to operate till
The rationale behind this principle of
1960 but has been extended till 2020 by the 95th
nomination is to provide eminent persons a
Amendment Act, 2009.
place in the Rajya Sabha without going through
the process of election. System of Elections to Lok Sabha
It should be noted here that the American The various aspects related to the system of
Senate has no nominated members. elections to the Lok Sabha are as follows:

Composition of Lok Sabha Territorial Constituencies

The maximum strength of the Lok Sabha is fixed For the purpose of holding direct elections to
at 552. Out of this, 530 members are to be the the Lok Sabha, each state is divided into
representatives of the states, 20 members are to territorial constituencies. In this respect, the
be the representatives of the union territories Constitution makes the following two
and 2 members are to be nominated by the provisions:
president from the Anglo- Indian community. • Each state is allotted a number of seats in the
At present, the Lok Sabha has 545 members. Of Lok Sabha in such a manner that the ratio
these, 528 members represent the states, 13 between that number and its population is
members represent the union territories. the same for all states. This provision does
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not apply to a state having a population of Reservation of Seats for SCs and STs
less than six millions. Though the Constitution has abandoned the
• Each state is divided into territorial system of communal representation, it provides
constituencies in such a manner that the for the reservation of seats for scheduled castes
ratio between the population of each and scheduled tribes in the Lok Sabha on the
constituency and the number of seats basis of population ratios.
allotted to it is the same throughout the
Originally, this reservation was to operate for
state.
ten years (ie, up to 1960), but it has been
In brief, the Constitution ensures that there is extended continuously since then by 10 years
uniformity of representation in two respects: each time. Now, under the 95th Amendment Act
of 2009, this reservation is to last until 2020.
a) between the different states, and
b) between the different constituencies in the Though seats are reserved for scheduled castes
same state. and scheduled tribes, they are elected by all the
voters in a constituency, without any separate
The expression ‘population’ means the
electorate.
population as ascertained at the preceding
census of which the relevant figures have been A member of scheduled castes and scheduled
published. tribes is also not debarred from contesting a
general (non-reserved) seat.
Readjustment after each Census
After every census, a readjustment is to be made The 84th Amendment Act of 2001 provided for
in refixing of the reserved seats on the basis of the
population figures of 1991 census as applied to
a) allocation of seats in the Lok Sabha to the
rationalisation of the general seats.
states, and
b) division of each state into territorial Later, the 87th Amendment Act of 2003 provided
constituencies. Parliament is empowered to for the refixing of the reserved seats on the basis
determine the authority and the manner in of 2001 census and not 1991 census.
which it is to be made.
First-Past-The-Post System
Accordingly, the Parliament has enacted the Though the Constitution has adopted the system
Delimitation Commission Acts in 1952, 1962, of proportional representation in the case of
1972 and 2002 for this purpose. Rajya Sabha, it has not preferred the same
system in the case of Lok Sabha.
The 42nd Amendment Act of 1976 froze the
allocation of seats in the Lok Sabha to the states Instead, it has adopted the system of territorial
and the division of each state into territorial representation (First-past-the-post system) for
constituencies till the year 2000 at the 1971 the election of members to the Lok Sabha.
level.
Under territorial representation, every member
This ban on readjustment was extended for of the legislature represents a geographical area
another 25 years (ie, upto year 2026) by the 84th known as a constituency. From each
Amendment Act of 2001. constituency, only one representative is elected.
Hence such a constituency is known as single-
The 84th Amendment Act of 2001 also
member constituency.
empowered the government to undertake
readjustment and rationalisation of territorial In this system, a candidate who secures majority
constituencies in the states on the basis of the of votes is declared elected. This simple majority
population figures of 1991 census. Later, the system of representation does not represent the
87th Amendment Act of 2003 provided for the whole electorate. In other words, it does not
delimitation of constituencies on the basis of secure due representation to minorities (small
2001 census and not 1991 census. groups).

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The system of proportional representation aims every third year. The retiring members are
at removing the defects of territorial eligible for re-election and re-nomination any
representation. Under this system, all sections number of times.
of the people get representation in proportion
The Constitution has not fixed the term of office
to their number.
of members of the Rajya Sabha and left it to the
Even the smallest section of the population gets Parliament. Accordingly, the Parliament in the
its due share of representation in the legislature. Representation of the People Act (1951)
provided that the term of office of a member of
There are two kinds of proportional
the Rajya Sabha shall be six years.
representation, namely, single transferable vote
system and list system. In India, the first kind is The act also empowered the president of India
adopted for the election of members to the Rajya to curtail the term of members chosen in the
Sabha and state legislative council and for first Rajya Sabha.
electing the President and the Vice-President.
In the first batch, it was decided by lottery as to
Though some members of the Constituent who should retire.
Assembly had advocated the system of
Further, the act also authorised the President to
proportional representation for the election of
make provisions to govern the order of
members to the Lok Sabha, the Constitution has
retirement of the members of the Rajya Sabha.
not adopted the system due to two reasons.
Duration of Lok Sabha
• Difficulty for the voters to understand the
Unlike the Rajya Sabha, the Lok Sabha is not a
system (which is complicated) due to low
continuing chamber.
literacy scale in the country.
• Unsuitability to the parliamentary Its normal term is five years from the date of its
government due to the tendency of the first meeting after the general elections, after
system to multiple political parties leading which it automatically dissolves. However, the
to instability in government. President is authorised to dissolve the Lok
Sabha at any time even before the completion of
Additionally, the system of proportional
five years and this cannot be challenged in a
representation has the following demerits:
court of law.
• It is highly expensive.
Further, the term of the Lok Sabha can be
• It does not give any scope for organising by- extended during the period of national
elections. emergency by a law of Parliament for one year
• It eliminates intimate contacts between at a time for any length of time.
voters and representatives.
• It promotes minority thinking and group However, this extension cannot continue
interests. beyond a period of six months after the
• It increases the significance of party system emergency has ceased to operate.
and decreases that of voter.
Membership of Parliament
Duration of Two Houses Qualifications
Duration of Rajya Sabha The Constitution lays down the following
The Rajya Sabha (first constituted in 1952) is a qualifications for a person to be chosen a
continuing chamber, that is, it is a permanent member of the Parliament:
body and not subject to dissolution. However, • He must be a citizen of India.
one-third of its members retire every second • He must make and subscribe to an oath or
year. affirmation before the person authorised by
Their seats are filled up by fresh elections and the election commission for this purpose. In
presidential nominations at the beginning of his oath or affirmation, he swears

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o To bear true faith and allegiance to the The Parliament has laid down the following
Constitution of India additional disqualifications in the
o To uphold the sovereignty and integrity Representation of People Act (1951):
of India
• He must not have been found guilty of
certain election offences or corrupt practices
• He must be not less than 30 years of age in
in the elections.
the case of the Rajya Sabha and not less than
• He must not have been convicted for any
25 years of age in the case of the Lok Sabha.
offence resulting in imprisonment for two or
• He must possess other qualifications
more years. But, the detention of a person
prescribed by Parliament.
under a preventive detention law is not a
The Parliament has laid down the following disqualification.
additional qualifications in the Representation • He must not have failed to lodge an account
of People Act (1951). of his election expenses within the time.
• He must not have any interest in
• He must be registered as an elector for a
government contracts, works or services.
parliamentary constituency. This is same in
• He must not be a director or managing agent
the case of both, the Rajya Sabha and the Lok
nor hold an office of profit in a corporation
Sabha. The requirement that a candidate
in which the government has at least 25 per
contesting an election to the Rajya Sabha
cent share.
from a particular state should be an elector
• He must not have been dismissed from
in that particular state was dispensed with
government service for corruption or
in 2003. In 2006, the Supreme Court upheld
disloyalty to the State.
the constitutional validity of this change.
• He must not have been convicted for
• He must be a member of a scheduled caste or
promoting enmity between different groups
scheduled tribe in any state or union
or for the offence of bribery.
territory, if he wants to contest a seat
reserved for them. However, a member of • He must not have been punished for
scheduled castes or scheduled tribes can preaching and practising social crimes such
also contest a seat not reserved for them. as untouchability, dowry and sati.

Disqualifications On the question whether a member is subject to

Under the Constitution, a person shall be any of the above disqualifications, the
disqualified for being elected as a member of president’s decision is final. However, he should
Parliament: obtain the opinion of the election commission
and act accordingly.
• if he holds any office of profit under the
Union or state government (except that of a
minister or any other office exempted by Disqualification on Ground of Defection
Parliament).
• if he is of unsound mind and stands so The Constitution also lays down that a person
declared by a court. shall be disqualified from being a member of
Parliament if he is so disqualified on the ground
• if he is an undischarged insolvent.
of defection under the provisions of the Tenth
• if he is not a citizen of India or has
Schedule.
voluntarily acquired the citizenship of a
foreign state or is under any A member incurs disqualification under the
acknowledgement of allegiance to a foreign defection law:
state; and
• if he voluntary gives up the membership of
• if he is so disqualified under any law made
the political party on whose ticket he is
by Parliament.
elected to the House;

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• if he votes or abstains from voting in the Resignation

House contrary to any direction given by his A member may resign his seat by writing to the
political party; Chairman of Rajya Sabha or Speaker of Lok
• if any independently elected member joins Sabha, as the case may be. The seat falls vacant
any political party; and when the resignation is accepted. However, the
• if any nominated member joins any political Chairman/ Speaker may not accept the
party after the expiry of six months. resignation if he is satisfied that it is not
voluntary or genuine.
The question of disqualification under the Tenth
Schedule is decided by the Chairman in the case Absence
of Rajya Sabha and Speaker in the case of Lok A House can declare the seat of a member vacant
Sabha (and not by the president of India). if he is absent from all its meetings for a period
of sixty days without its permission. In
In 1992, the Supreme Court ruled that the computing the period of sixty days, no account
decision of the Chairman/Speaker in this regard shall be taken of any period during which the
is subject to judicial review. House is prorogued or adjourned for more than
Vacating Of Seats four consecutive days.
In the following cases, a member of Parliament Other cases
vacates his seat.
A member has to vacate his seat in the
Double Membership Parliament:
A person cannot be a member of both Houses of a) if his election is declared void by the court;
Parliament at the same time. Thus, the b) if he is expelled by the House;
Representation of People Act (1951) provides c) if he is elected to the office of President or
for the following: Vice-President; and
• If a person is elected to both the Houses of d) if he is appointed to the office of governor of
a state.
Parliament, he must intimate within 10 days
in which House he desires to serve. In If a disqualified person is elected to the
default of such intimation, his seat in the Parliament, the Constitution lays down no
Rajya Sabha becomes vacant. procedure to declare the election void.
• If a sitting member of one House is also
elected to the other House, his seat in the This matter is dealt by the Representation of the
first House becomes vacant. People Act (1951), which enables the high court
to declare an election void if a disqualified
• If a person is elected to two seats in a House,
candidate is elected.
he should exercise his option for one.
Otherwise, both seats become vacant. The aggrieved party can appeal to the Supreme
Court against the order of the high court in this
Similarly, a person cannot be a member of both
regard.
the Parliament and the state legislature at the
same time. If a person is so elected, his seat in Oath or Affirmation
Parliament becomes vacant if he does not resign Every member of either House of Parliament,
his seat in the state legislature within 14 days. before taking his seat in the House, has to make
Disqualification and subscribe to an oath or affirmation before
If a member of Parliament becomes subject to the President or some person appointed by him
any of the disqualifications specified in the for this purpose.
Constitution, his seat becomes vacant. Here, the In his oath or affirmation, a member of
list of disqualifications also includes the Parliament swears:
disqualification on the grounds of defection
under the provisions of the Tenth Schedule of • to bear true faith and allegiance to the
the Constitution. Constitution of India;
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• to uphold the sovereignty and integrity of and Deputy Chairman of Rajya Sabha are also
India; and determined by Parliament.
• to faithfully discharge the duty upon which
They are charged on the Consolidated Fund of
he is about to enter.
India and thus are not subject to the annual vote
Unless a member takes the oath, he cannot vote of Parliament.
and participate in the proceedings of the House
In 1953, the Parliament enacted the Salaries and
and does not become eligible to parliamentary
Allowances of Officers of Parliament Act. Under
privileges and immunities.
this Act, “Officer of Parliament” means any of the
A person is liable to a penalty of ₹500 for each following officers, namely, the Chairman and
day he sits or votes as a member in a House in Deputy Chairman of the Rajya Sabha and the
the following conditions: Speaker and the Deputy Speaker of the Lok
Sabha.
• Before taking and subscribing to the
prescribed oath or affirmation; or In 2018, the Parliament increased the salary of
• When he knows that he is not qualified or the Chairman of the Rajya Sabha from ₹1.25 lakh
that he is disqualified for its membership; or to ₹4 lakh per month.
• When he knows that he is prohibited from Similarly, other Officers of Parliament (i.e., the
sitting or voting in the House by virtue of any Speaker and the Deputy Speaker of the Lok
parliamentary law. Sabha and the Deputy Chairman of the Rajya
Salaries and Allowances Sabha) are entitled to receive a salary per month
Members of either House of Parliament are at the same rates as are payable to the Members
of Parliament.
entitled to receive such salaries and allowances
as may be determined by Parliament, and there Further, each Officer of Parliament (other than
is no provision of pension in the Constitution. the Chairman of the Rajya Sabha) is entitled to
However, Parliament has provided pension to receive a daily allowance (for each day during
the members. the whole of his term) at the same rate as is
payable to the Members of Parliament.
In 1954, the Parliament enacted the Salaries,
Allowances and Pension of Members of Also, each Officer of Parliament (other than the
Parliament Act. Chairman of the Rajya Sabha) is entitled to
receive a constituency allowance at the same
In 2018, the salary of members was increased rate as is payable to the Members of Parliament.
from ₹50,000 to ₹1,00,000 per month, the
constituency allowance from ₹45,000 to According to the same Act, the sumptuary
₹70,000 per month and the office expenses allowance is paid to the Speaker of the Lok
allowance from ₹45,000 to ₹60,000 per month. Sabha at the same rate as is payable to a Cabinet
Minister (i.e., ₹2,000 per month). Likewise, the
Earlier in 2010, the daily allowance was sumptuary allowance is paid to the Deputy
increased from ₹1,000 to ₹2,000 for each day of Speaker of the Lok Sabha and the Deputy
residence on duty. Chairman of the Rajya Sabha at the same rate as
is payable to a Minister of State9f (i.e., ₹1000 per
From 1976, the members are also entitled to a
month).
pension on a graduated scale for each five-year-
term as members of either House of Parliament. Presiding Officers of Parliament
Besides, they are provided with travelling Each House of Parliament has its own presiding
facilities, free accommodation, telephone, officer.
vehicle advance, medical facilities and so on. There is a Speaker and a Deputy Speaker for the
The salaries and allowances of the Speaker and Lok Sabha and a Chairman and a Deputy
Deputy Speaker of Lok Sabha and the Chairman Chairman for the Rajya Sabha.
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A panel of chairpersons for the Lok Sabha and a He is thus much more than merely the presiding
panel of vice chairpersons for the Rajya Sabha is officer of the Lok Sabha.
also appointed.
In these capacities, he is vested with vast, varied
Speaker of Lok Sabha and vital responsibilities and enjoys great
Election and Tenure honour, high dignity and supreme authority
within the House.
The Speaker is elected by the Lok Sabha from
amongst its members (as soon as may be, after The Speaker of the Lok Sabha derives his
its first sitting). powers and duties from three sources, that is,
the Constitution of India, the Rules of Procedure
Whenever the office of the Speaker falls vacant,
and Conduct of Business of Lok Sabha, and
the Lok Sabha elects another member to fill the
Parliamentary Conventions (residuary powers
vacancy.
that are unwritten or unspecified in the Rules).
The date of election of the Speaker is fixed by the
Altogether, he has the following powers and
President.
duties:
Usually, the Speaker remains in office during the
• He maintains order and decorum in the
life of the Lok Sabha.
House for conducting its business and
However, he has to vacate his office earlier in regulating its proceedings. This is his
any of the following three cases: primary responsibility and he has final
power in this regard.
• if he ceases to be a member of the Lok Sabha;
• He is the final interpreter of the provisions
• if he resigns by writing to the Deputy
of (a) the Constitution of India, (b) the Rules
Speaker; and
of Procedure and Conduct of Business of Lok
• if he is removed by a resolution passed by a Sabha, and (c) the parliamentary
majority of all then members of the Lok precedents, within the House.
Sabha.
• He adjourns the House or suspends the
Such a resolution can be moved only after
meeting in absence of a quorum. The
giving 14 days’ advance notice.
quorum to constitute a meeting of the House
When a resolution for the removal of the
is one-tenth of the total strength of the
Speaker is under consideration of the House,
House.
he cannot preside at the sitting of the House,
• He does not vote in the first instance. But he
though he may be present.
can exercise a casting vote in the case of a tie.
However, he can speak and take part in the
In other words, only when the House is
proceedings of the House at such a time and
divided equally on any question, the Speaker
vote in the first instance, though not in the
is entitled to vote. Such vote is called casting
case of an equality of votes.
vote, and its purpose is to resolve a deadlock.
Whenever the Lok Sabha is dissolved, the • He presides over a joint sitting of the two
Speaker does not vacate his office and continues Houses of Parliament. Such a sitting is
till the newly-elected Lok Sabha meets. summoned by the President to settle a
deadlock between the two Houses on a bill.
Role, Powers and Functions
• He can allow a ‘secret’ sitting of the House at
The Speaker is the head of the Lok Sabha, and its the request of the Leader of the House. When
representative. the House sits in secret, no stranger can be
present in the chamber, lobby or galleries
He is the guardian of powers and privileges of
except with the permission of the Speaker.
the members, the House as a whole and its
committees.
• He decides whether a bill is a money bill or
He is the principal spokesman of the House, and not and his decision on this question is final.
his decision in all Parliamentary matters is final. When a money bill is transmitted to the
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Rajya Sabha for recommendation and • His powers of regulating procedure or

presented to the President for assent, the conducting business or maintaining order in
Speaker endorses on the bill his certificate the House are not subject to the jurisdiction
that it is a money bill. of any Court.
• He decides the questions of disqualification • He cannot vote in the first instance. He can
of a member of the Lok Sabha, arising on the only exercise a casting vote in the event of a
ground of defection under the provisions of tie. This makes the position of Speaker
the Tenth Schedule. In 1992, the Supreme impartial.
Court ruled that the decision of the Speaker • He is given a very high position in the order
in this regard is subject to judicial review. of precedence. He is placed at seventh rank,
• He acts as the ex-officio chairman of the along with the Chief Justice of India. This
Indian Parliamentary Group which is a link means, he has a higher rank than all cabinet
between the Parliament of India and the ministers, except the Prime Minister or
various parliaments of the world. He also Deputy Prime Minister.
acts as the ex-officio chairman of the
In Britain, the Speaker is strictly a non-party
conference of presiding officers of legislative
man. There is a convention that the Speaker has
bodies in the country.
to resign from his party and remain politically
• He appoints the chairman of all the
neutral.
parliamentary committees of the Lok Sabha
and supervises their functioning. He himself This healthy convention is not fully established
is the chairman of the Business Advisory in India where the Speaker does not resign from
Committee, the Rules Committee and the the membership of his party on his election to
General Purpose Committee. the exalted office.
Independence and Impartiality Deputy Speaker of Lok Sabha
Like the Speaker, the Deputy Speaker is also
As the office of the Speaker is vested with great
elected by the Lok Sabha itself from amongst its
prestige, position and authority, independence
members.
and impartiality becomes its sine qua non.
He is elected after the election of the Speaker
The following provisions ensure the
has taken place. The date of election of the
independence and impartiality of the office of
Deputy Speaker is fixed by the Speaker.
the Speaker:
Whenever the office of the Deputy Speaker falls
• He is provided with a security of tenure. He
vacant, the Lok Sabha elects another member to
can be removed only by a resolution passed
fill the vacancy.
by the Lok Sabha by a special majority (ie, a
majority of all the then members of the Like the Speaker, the Deputy Speaker remains in
House) and not by an ordinary majority (ie, office usually during the life of the Lok Sabha.
a majority of the members present and However, he may vacate his office earlier in any
voting in the House). This motion of removal of the following three cases:
can be considered and discussed only when
• if he ceases to be a member of the Lok Sabha;
it has
• if he resigns by writing to the Speaker; and
the support of at least 50 members. • if he is removed by a resolution passed by a
majority of all the then members of the Lok
• His salaries and allowances are fixed by
Sabha. Such a resolution can be moved only
Parliament. They are charged on the
after giving 14 days’ advance notice.
Consolidated Fund of India and thus are not
subject to the annual vote of Parliament. The Deputy Speaker performs the duties of the
• His work and conduct cannot be discussed Speaker’s office when it is vacant. He also acts as
and criticised in the Lok Sabha except on a the Speaker when the latter is absent from the
substantive motion. sitting of the House. In both the cases, he
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assumes all the powers of the Speaker. He also Before 1921, the Governor-General of India
presides over the joint sitting of both the Houses used to preside over the meetings of the Central
of Parliament, in case the Speaker is absent from Legislative Council. In 1921, the Frederick
such a sitting. Whyte and Sachidanand Sinha were appointed
by the Governor-General of India as the
It should be noted here that the Deputy Speaker
firstSpeaker and the first Deputy Speaker
is not subordinate to the Speaker. He is directly
(respectively) of the central legislative
responsible to the House.
assembly.
The Deputy Speaker has one special privilege,
In 1925, Vithalbhai J. Patel became the first
that is, whenever he is appointed as a member
Indian and the first elected Speaker of the
of a parliamentary committee, he automatically
central legislative assembly.
becomes its chairman.
The Government of India Act of 1935 changed
Like the Speaker, the Deputy Speaker, while
the nomenclatures of President and Deputy
presiding over the House, cannot vote in the first
President of the Central Legislative Assembly to
instance; he can only exercise a casting vote in
the Speaker and Deputy Speaker respectively.
the case of a tie.
However, the old nomenclature continued till
Further, when a resolution for the removal of 1947 as the federal part of the 1935 Act was not
the Deputy Speaker is under consideration of implemented.
the House, he cannot preside at the sitting of the
G.V. Mavalankar and Ananthasayanam
House, though he may be present.
Ayyangar had the distinction of being the first
When the Speaker presides over the House, the Speaker and the first Deputy Speaker
Deputy Speaker is like any other ordinary (respectively) of the Lok Sabha.
member of the House. He can speak in the
G.V. Mavalankar also held the post of Speaker in
House, participate in its proceedings and vote
the Constituent Assembly (Legislative) as well
on any question before the House.
as the provisional Parliament. He held the post
The Deputy Speaker is entitled to a regular of Speaker of Lok Sabha continuously for one
salary and allowance fixed by Parliament, and decade from 1946 to 1956.
charged on the Consolidated Fund of India.
Panel of Chairpersons of Lok Sabha
Upto the 10th Lok Sabha, both the Speaker and Under the Rules of Lok Sabha, the Speaker
the Deputy Speaker were usually from the nominates from amongst the members a panel
ruling party. Since the 11th Lok Sabha, there has of not more than ten chairpersons.
been a consensus that the Speaker comes from
Any of them can preside over the House in the
the ruling party (or ruling alliance) and the post
absence of the Speaker or the Deputy Speaker.
of Deputy Speaker goes to the main opposition
party. He has the same powers as the Speaker when so
presiding. He holds office until a new panel of
The Speaker and the Deputy Speaker, while
chairpersons is nominated.
assuming their offices, do not make and
subscribe any separate oath or affirmation. When a member of the panel of chairpersons is
also not present, any other person as
The institutions of Speaker and Deputy Speaker
determined by House acts as the Speaker.
originated in India in 1921 under the provisions
of the Government of India Act of 1919 It must be emphasised here that a member of
(Montague-Chelmsford Reforms). At that time, the panel of chairpersons cannot preside over
the Speaker and the Deputy Speaker were called the House, when the office of the Speaker or the
the President and Deputy President Deputy Speaker is vacant.
respectively and the same nomenclature
During such time, the Speaker’s duties are to be
continued till 1947.
performed by such member of the House as the
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President may appoint for the purpose. The Unlike the Speaker (who is a member of the
elections are held, as soon as possible, to fill the House), the Chairman is not a member of the
vacant posts. House. But like the Speaker, the Chairman also
cannot vote in the first instance. He too can cast
Speaker Pro Tem
a vote in the case of an equality of votes.
As provided by the Constitution, the Speaker of
the last Lok Sabha vacates his office The Vice-President cannot preside over a sitting
immediately before the first meeting of the of the Rajya Sabha as its Chairman when a
newly-elected Lok Sabha. resolution for his removal is under
consideration. However, he can be present and
Therefore, the President appoints a member of
speak in the House and can take part in its
the Lok Sabha as the Speaker Pro Tem. Usually,
proceedings, without voting, even at such a time
the seniormost member is selected for this. The
(while the Speaker can vote in the first instance
President himself administers oath to the
when a resolution for his removal is under
Speaker Pro Tem.
consideration of the Lok Sabha).
The Speaker Pro Tem has all the powers of the
As in case of the Speaker, the salaries and
Speaker. He presides over the first sitting of the
allowances of the Chairman are also fixed by the
newly-elected Lok Sabha. His main duty is to
Parliament. They are charged on the
administer oath to the new members.
Consolidated Fund of India and thus are not
He also enables the House to elect the new subject to the annual vote of Parliament.
Speaker. When the new Speaker is elected by
During any period when the Vice-President acts
the House, the office of the Speaker Pro Tem
as President or discharges the functions of the
ceases to exist. Hence, this office is a temporary
President, he is not entitled to any salary or
office, existing for a few days.
allowance payable to the Chairman of the Rajya
Chairman of Rajya Sabha Sabha. But he is paid the salary and allowance of
The presiding officer of the Rajya Sabha is the President during such a time.
known as the Chairman. The vice-president of
Deputy Chairman of Rajya Sabha
India is the ex-officio Chairman of the Rajya
The Deputy Chairman is elected by the Rajya
Sabha.
Sabha itself from amongst its members.
During any period when the Vice-President acts
Whenever the office of the Deputy Chairman
as President or discharges the functions of the
falls vacant, the Rajya Sabha elects another
President, he does not perform the duties of the
member to fill the vacancy.
office of the Chairman of Rajya Sabha.
The Deputy Chairman vacates his office in any of
The Chairman of the Rajya Sabha can be
the following three cases:
removed from his office only if he is removed
from the office of the Vice-President. • if he ceases to be a member of the Rajya
Sabha;
As a presiding officer, the powers and functions
• if he resigns by writing to the Chairman; and
of the Chairman in the Rajya Sabha are similar
to those of the Speaker in the Lok Sabha. • if he is removed by a resolution passed by a
majority of all the then members of the Rajya
However, the Speaker has two special powers Sabha. Such a resolution can be moved only
which are not enjoyed by the Chairman: after giving 14 days’ advance notice.
• The Speaker decides whether a bill is a The Deputy Chairman performs the duties of the
money bill or not and his decision on this Chairman’s office when it is vacant or when the
question is final. Vice-President acts as President or discharges
• The Speaker presides over a joint sitting of the functions of the President.
two Houses of Parliament.

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He also acts as the Chairman when the latter is by such member of the House as the president
absent from the sitting of the House. may appoint for the purpose.
In both the cases, he has all the powers of the The elections are held, as soon as possible, to fill
Chairman. the vacant posts.
It should be emphasised here that the Deputy Secretariat of Parliament
Chairman is not subordinate to the Chairman. Each House of Parliament has separate
He is directly responsible to the Rajya Sabha. secretarial staff of its own, though there can be
some posts common to both the Houses.
Like the Chairman, the Deputy Chairman, while
presiding over the House, cannot vote in the first Their recruitment and service conditions are
instance; he can only exercise a casting vote in regulated by Parliament.
the case of a tie.
The secretariat of each House is headed by a
Further, when a resolution for the removal of secretary-general.
the Deputy Chairman is under consideration of
He is a permanent officer and is appointed by
the House, he cannot preside over a sitting of the
the presiding officer of the House.
House, though he may be present.
When the Chairman presides over the House, Leaders in Parliament
the Deputy Chairman is like any other ordinary Leader of the House
member of the House. He can speak in the Under the Rules of Lok Sabha, the ‘Leader of the
House, participate in its proceedings and vote House’ means the prime minister, if he is a
on any question before the House. member of the Lok Sabha, or a minister who is a
member of the Lok Sabha and is nominated by
Like the Chairman, the Deputy Chairman is also the prime minister to function as the Leader of
entitled to a regular salary and allowance. They the House.
are fixed by Parliament and are charged on the
Consolidated Fund of India. There is also a ‘Leader of the House’ in the Rajya
Sabha. He is a minister and a member of the
Panel of Vice-Chairpersons of Rajya Sabha Rajya Sabha and is nominated by the prime
Under the Rules of Rajya Sabha, the Chairman minister to function as such.
nominates from amongst the members a panel
of vice-chairpersons. Any one of them can The leader of the house in either House is an
preside over the House in the absence of the important functionary and exercises direct
Chairman or the Deputy Chairman. influence on the conduct of business.

He has the same powers as the Chairman when He can also nominate a deputy leader of the
so presiding. House. The same functionary in USA is known as
the ‘majority leader’.
He holds office until a new panel of vice-
chairpersons is nominated. Leader of the Opposition
In each House of Parliament, there is the ‘Leader
When a member of the panel of vice- of the Opposition’.
chairpersons is also not present, any other
person as determined by the House acts as the The leader of the largest Opposition party
Chairman. having not less than one-tenth seats of the total
strength of the House is recognised as the leader
It must be emphasised here that a member of of the Opposition in that House.
the panel of vice chairpersons cannot preside
over the House, when the office of the Chairman In a parliamentary system of government, the
or the Deputy Chairman is vacant. During such leader of the opposition has a significant role to
time, the Chairman’s duties are to be performed play.

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His main functions are to provide a constructive He is charged with the responsibility of ensuring
criticism of the policies of the government and the attendance of his party members in large
to provide an alternative government. numbers and securing their support in favour of
Therefore, the leader of Opposition in the Lok or against a particular issue.
Sabha and the Rajya Sabha were accorded
He regulates and monitors their behaviour in
statutory recognition in 1977.
the Parliament. The members are supposed to
They are also entitled to the salary, allowances follow the directives given by the whip.
and other facilities equivalent to that of a Otherwise, disciplinary action can be taken.
cabinet minister.
Sessions of Parliament
It was in 1969 that an official leader of the Summoning
opposition was recognised for the first time. The president from time to time summons each
The same functionary in USA is known as the House of Parliament to meet. But, the maximum
‘minority leader’. gap between two sessions of Parliament cannot
be more than six months. In other words, the
The British political system has a unique Parliament should meet at least twice a year.
institution called the ‘Shadow Cabinet’. It is
formed by the Opposition party to balance the There are usually three sessions in a year, viz,
ruling cabinet and to prepare its members for • the Budget Session (February to May);
future ministerial offices. • the Monsoon Session (July to September);
In this shadow cabinet, almost every member in and
the ruling cabinet is ‘shadowed’ by a • the Winter Session (November to
corresponding member in the opposition December).
cabinet.
A ‘session’ of Parliament is the period spanning
This shadow cabinet serves as the ‘alternate between the first sitting of a House and its
cabinet’ if there is change of government. That is prorogation (or dissolution in the case of the
why Ivor Jennings described the leader of Lok Sabha).
Opposition as the ‘alternative Prime Minister’.
During a session, the House meets everyday to
He enjoys the status of a minister and is paid by transact business. The period spanning between
the government. the prorogation of a House and its reassembly in
a new session is called ‘recess’.
Whip
Though the offices of the leader of the House and Adjournment
the leader of the Opposition are not mentioned A session of Parliament consists of many
in the Constitution of India, they are mentioned meetings. Each meeting of a day consists of two
in the Rules of the House and Parliamentary sittings, that is, a morning sitting from 11 am to
Statute respectively. 1 pm and post-lunch sitting from 2 pm to 6 pm.

The office of ‘whip’, on the other hand, is A sitting of Parliament can be terminated by
mentioned neither in the Constitution of India adjournment or adjournment sine die or
nor in the Rules of the House nor in a prorogation or dissolution (in the case of the
Parliamentary Statute. It is based on the Lok Sabha).
conventions of the parliamentary government.
An adjournment suspends the work in a sitting
Every political party, whether ruling or for a specified time, which may be hours, days or
Opposition has its own whip in the Parliament. weeks.
He is appointed by the political party to serve as
Adjournment Sine Die
an assistant floor leader.
Adjournment sine die means terminating a
sitting of Parliament for an indefinite period. In
other words, when the House is adjourned
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without naming a day for reassembly, it is called Unlike a prorogation, a dissolution ends the very
adjournment sine die. life of the existing House, and a new House is
constituted after general elections are held.
The power of adjournment as well as
adjournment sine die lies with the presiding The dissolution of the Lok Sabha may take place
officer of the House. in either of two ways:
He can also call a sitting of the House before the • Automatic dissolution, that is, on the expiry
date or time to which it has been adjourned or of its tenure of five years or the terms as
at any time after the House has been adjourned extended during a national emergency; or
sine die. • Whenever the President decides to dissolve
the House, which he is authorised to do.
Prorogation
Once the Lok Sabha is dissolved before the
The presiding officer (Speaker or Chairman)
completion of its normal tenure, the
declares the House adjourned sine die, when the
dissolution is irrevocable.
business of a session is completed.
When the Lok Sabha is dissolved, all business
Within the next few days, the President issues a
including bills, motions, resolutions, notices,
notification for prorogation of the session.
petitions and so on pending before it or its
However, the President can also prorogue the
committees lapse.
House while in session.
They (to be pursued further) must be
Adjournment Prorogation
reintroduced in the newly-constituted Lok
It only terminates a It not only
sitting and not a terminates a sitting Sabha.
session of the House. but also a session of However, some pending bills and all pending
the House. assurances that are to be examined by the
It is done by presiding It is done by the Committee on Government Assurances do not
officer of the House. president of India.
lapse on the dissolution of the Lok Sabha.
It does not affect the It also does not affect
bills or any other the bills or any other The position with respect to lapsing of bills is as
business pending business pending follows:
before the House and before the House.
the same can be However, all pending Bills which lapses Bills which does not
resumed when the notices (other than lapses
House meets again. those for introducing A bill pending in the A bill not passed by the
bills) lapse on Lok Sabha (whether two Houses due to
prorogation and originating in the disagreement and if the
fresh notices have to Lok Sabha or president has notified
be given for the next transmitted to it by the holding of a joint
session. the Rajya Sabha). sitting before the
In Britain, dissolution of Lok
prorogation brings Sabha.
to an end all bills or A bill passed by the A bill pending in the
any other business Lok Sabha but Rajya Sabha but not
pending before the pending in the Rajya passed by the Lok
House. Sabha. Sabha.
A bill passed by both
Houses but pending
Dissolution assent of the president.
Rajya Sabha, being a permanent House, is not A bill passed by both
subject to dissolution. Only the Lok Sabha is Houses but returned by
subject to dissolution. the president for
reconsideration of
Houses.
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Quorum o If the opinion of the Speaker as to the

Quorum is the minimum number of members decision of a question is challenged,
required to be present in the House before it can he shall order that the Lobby be
transact any business. It is one-tenth of the total cleared.
number of members in each House including the o After the lapse of three minutes and
presiding officer. thirty seconds, he shall put the
question a second time and declare
It means that there must be at least 55 members whether in his opinion the ‘Ayes’ or
present in the Lok Sabha and 25 members the ‘Noes’ have it.
present in the Rajya Sabha, if any business is to o If the opinion so declared is again
be conducted. challenged, he shall direct that the
If there is no quorum during a meeting of the votes be recorded either by operating
House, it is the duty of the presiding officer the automatic vote recorder or by
either to adjourn the House or to suspend the using ‘Aye’ and ‘No’ Slips in the House
meeting until there is a quorum. or by the Members going into the
Lobbies.
Voting in House
All matters at any sitting of either House or joint • If in the opinion of the Speaker, the Division
sitting of both the Houses are decided by a is unnecessarily claimed, he may ask the
majority of votes of the members present and members who are for ‘Aye’ and those for ‘No’
voting, excluding the presiding officer. respectively to rise in their places and, on
account being taken, he may declare the
Only a few matters, which are specifically
determination of the House. In such a case,
mentioned in the Constitution like
the names of the voters shall not be
impeachment of the President, amendment of
recorded.
the Constitution, removal of the presiding
officers of the Parliament and so on, require Language in Parliament
special majority, not ordinary majority. The Constitution has declared Hindi and English
The presiding officer of a House does not vote in to be the languages for transacting business in
the first instance, but exercises a casting vote in the Parliament. However, the presiding officer
the case of an equality of votes. can permit a member to address the House in
his mother-tongue.
The proceedings of a House are to be valid
irrespective of any unauthorised voting or In both the Houses, arrangements are made for
participation or any vacancy in its membership. simultaneous translation.

The following points can be noted with respect Though English was to be discontinued as a
to the voting procedure in the Lok Sabha: floor language after the expiration of fifteen
years from the commencement of the
• On the conclusion of a debate, the Speaker Constitution (that is, in 1965), the Official
shall put the question and invite those who Languages Act (1963) allowed English to be
are in favour of the motion to say ‘Aye’ and continued along with Hindi.
those against the motion to say ‘No’.
• The Speaker shall then say: ‘I think the Ayes Rights of Ministers and Attorney
(or the Noes, as the case may be) have it.’ If General
the opinion of the Speaker as to the decision In addition to the members of a House, every
of a question is not challenged, he shall say minister and the attorney general of India have
twice: The Ayes (or the Noes, as the case may the right to speak and take part in the
be) have it’ and the question before the proceedings of either House, any joint sitting of
House shall be determined accordingly. both the Houses and any committee of
Parliament of which he is a member, without
being entitled to vote.
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There are two reasons underlying this Presiding officers of the two houses are the final
constitutional provision: authority with respect to the conduct of
Question Hour.
• A minister can participate in the proceedings
of a House, of which he is not a member. In Timing of Question Hour
other words, a minister belonging to the Lok
Usually Question Hour is the first hour of a
Sabha can participate in the proceedings of
parliamentary sitting. In 2014, Rajya Sabha
the Rajya Sabha and vice-versa.
Chairman Hamid Ansari shifted Question Hour
• A minister, who is not a member of either
in the House from 11 am to 12 noon.
House, can participate in the proceedings of
both the Houses. It should be noted here that In 2011, Question Hour was shifted to be held
a person can remain a minister for six from 2 pm to 3 pm, but this was discontinued
months, without being a member of either within a few days.
House of Parliament.
Kind of questions asked
Lame-duck Session • Questions have to be limited to 150 words in
It refers to the last session of the existing Lok Lok Sabha and 100 words in Rajya Sabha.
Sabha, after a new Lok Sabha has been elected.
Those members of the existing Lok Sabha who
• The question should also be related to an
could not get re-elected to the new Lok Sabha
area of responsibility of the Government of
are called lame-ducks.
India.
Devices of Parliamentary Proceedings
Question Hour • Questions should not seek information
Question Hour and its significance about matters that are secret or are under
adjudication before courts.
• Liveliest hour in Parliament.
• During this one hour that Members of • It is the presiding officers of the two Houses
Parliament ask questions of ministers and who finally decide whether a question raised
hold them accountable for the functioning of by an MP will be admitted for answering by
their ministries. the government.
• The questions that MPs ask are designed to
Frequency of Question Hour
elicit information and trigger suitable action
by ministries. • In the beginning in 1952, in Lok Sabha
• The questions have exposed financial question hour was held daily
irregularities and brought data and • In Rajya Sabha, it was held on two days, later
information regarding government changed to four days. After 1964, it is held
functioning to the public domain. daily.
Broadcasting of Question Hour started in 1991. Now, Question Hour in both Houses is held on
all days of the session.
Prior to Independence, the first question asked of
government was in 1893. It was on the burden Question Hour is not held on following days
cast on village shopkeepers who had to provide
supplies to touring government officers. • When President addresses MPs from both
Houses in the Central Hall. The President’s
Regulation of Question Hour speech takes place at the beginning of a new
Comprehensive rules are available for dealing Lok Sabha and on the first day of a new
with every aspect of Question Hour. Parliament year.
Rules mentioned in Chapter VII of Lok Sabha • On the day the Finance Minister presents the
Rule Book (Rules 32 – 54) & Chapter VII of Budget.
Rajya Sabha Rule Book (Rules 38 – 59).

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How does Parliament manage to get so many which have appeared on the list of questions
questions answered? for oral answer have been disposed of.
• If the Minister is unable to answer the
• Ministries are put into five groups. Each
question at short notice and the Speaker is of
group answers questions on the day
the opinion that the question is of sufficient
allocated to it.
public importance to be orally answered in
• This grouping of ministries is different for
the House, the Speaker may direct that the
the two Houses so that ministers can be
question be placed as the first question on
present in one house to answer questions.
the list of questions for the day on which it
would be due for answer under rule 33.

Types of Answers Not more than one such question shall be

accorded first priority on the list of questions for
MPs can specify whether they want an oral or any one day.
written response to their questions.
Are the questions only for ministers?
They can put an asterisk against their question
signifying that they want the minister to answer
that question on the floor (ORAL ANSWER).
Other MPs (non-ministers) can also be asked
questions during Question Hour.

These are referred to as starred questions. Such a question should be limited to the role of
Follow-up questions may be asked after an an MP relating to a Bill or a resolution being
oral answer of the starred question. piloted by them or any other matter connected
with the functioning of the House for which they
are responsible.
When MPs are trying to gather data and The list of starred, unstarred, short notice
information about government functioning, questions and questions to private members are
they prefer the responses to such queries in printed in green, white, light pink and yellow
writing. colour, respectively, to distinguish them from one
These questions are referred to as unstarred another.
questions. How do ministers prepare their answers?
The responses to these questions are placed on
the table of Parliament. No follow-up
questions asked after unstarred questions. Ministries receive the questions 15 days in
advance so that they can prepare their ministers
Other types of Questions for Question Hour.
Short Notice Questions If the presiding officers allow, MPs can also ask
• Question relating to a matter of public a question to a minister at a notice period
importance may be asked with notice shorter than 15 days.
shorter than ten clear days and the Speaker, Is there a limit to the number of questions
if, is of the opinion that the question is of an that can be asked?
urgent character, may direct that an enquiry
may be made from the Minister concerned if The total number of questions asked by MPs in
such Minister is in a position to reply and, if the starred and unstarred categories are then
so, on what date. put in a random ballot.
• If the Minister concerned agrees to reply, From the ballot in Lok Sabha, 20 starred
such question shall be answered on a day to questions are picked for answering during
be indicated by the Minister and shall be
called immediately after the questions
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Question Hour and 230 are picked for written The House expresses its decisions or opinions
answers. on various issues through the adoption or
rejection of motions moved by either ministers
The limit is 15 starred questions and 150
or private members.
unstarred questions in Rajya Sabha.
The motions moved by the members to raise
discussions on various matters fall into three
After a gap of 47 years, all 20 starred questions principal categories:
were answered in Lok Sabha on Nov 27, 2019.
• Substantive Motion: It is a self-contained
The previous record was created on March 14, independent proposal dealing with a very
1972 during a session of the fifth Lok Sabha when important matter like impeachment of the
14 starred questions were answered. President or removal of Chief Election
Commissioner.
The number of starred questions was fixed at 20
• Substitute Motion: It is a motion that is
per Question Hour from the fourth session of the
moved in substitution of an original motion
fifth Lok Sabha in 1972.
and proposes an alternative to it. If adopted
Previous sessions without Question Hour by the House, it supersedes the original
motion.
Parliamentary records show that during the
• Subsidiary Motion: It is a motion that, by
Chinese aggression in 1962, the Winter Session
itself, has no meaning and cannot state the
was advanced. The sitting of the House started
decision of the House without reference to
at 12 pm and there was no Question Hour held.
the original motion or proceedings of the
Before the session, changes were made limiting House.
the number of questions. Thereafter, following It is divided into three sub-categories:
an agreement between the ruling and the
Opposition parties, it was decided to suspend o Ancillary Motion: It is used as the
Question Hour. regular way of proceeding with various
kinds of business.
Zero Hour
o Superseding Motion: It is moved in the
Zero Hour is an Indian parliamentary
course of debate on another issue and
innovation. The phrase does not find mention in
seeks to supersede that issue.
the rules of procedure.
o Amendment: It seeks to modify or
The concept of Zero Hour started organically in substitute only a part of the original
the first decade of Indian Parliament and has motion.
been in existence since 1962, when MPs felt the
Closure Motion
need for raising important constituency and
national issues. It is a motion moved by a member to cut short
the debate on a matter before the House. If the
During the initial days, Parliament used to Break
motion is approved by the House, debate is
for lunch at 1pm. Therefore, the opportunity for
stopped forthwith and the matter is put to vote.
MPs to raise national issues without an advance
There are four kinds of closure motions:
notice became available at12 pm and could last
for an hour until the House adjourned for lunch. • Simple Closure: It is one when a member
This led to the hour being Popularly referred to moves that the ‘matter having been
as Zero Hour and the issues being raised during sufficiently discussed be now put to vote’.
this time as Zero Hour submissions. • Closure by Compartments: In this case, the
clauses of a bill or a lengthy resolution are
Motions
grouped into parts before the
No discussion on a matter of general public
commencement of the debate. The debate
importance can take place except on a motion
made with the consent of the presiding officer.
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covers the part as a whole and the entire part The discussion on an adjournment motion
is put to vote. should last for not less than two hours and thirty
• Kangaroo Closure: Under this type, only minutes.
important clauses are taken up for debate
The right to move a motion for an adjournment
and voting and the intervening clauses are
of the business of the House is subject to the
skipped over and taken as passed.
following restrictions:
• Guillotine Closure: It is one when the
undiscussed clauses of a bill or a resolution • It should raise a matter which is definite,
are also put to vote along with the discussed factual, urgent and of public importance;
ones due to want of time (as the time allotted • It should not cover more than one matter;
for the discussion is over). • It should be restricted to a specific matter of
recent occurrence and should not be framed
Privilege Motion
in general terms;
It is concerned with the breach of parliamentary • It should not raise a question of privilege;
privileges by a minister. • It should not revive discussion on a matter
that has been discussed in the same session;
It is moved by a member when he feels that a
minister has committed a breach of privilege of • It should not deal with any matter that is
the House or one or more of its members by under adjudication by court; and
withholding facts of a case or by giving wrong or • It should not raise any question that can be
distorted facts. raised on a distinct motion.

Its purpose is to censure the concerned No-Confidence Motion

minister. Article 75 of the Constitution says that the
Calling Attention Motion council of ministers shall be collectively
responsible to the Lok Sabha.
It is introduced in the Parliament by a member
to call the attention of a minister to a matter of It means that the ministry stays in office so long
urgent public importance, and to seek an as it enjoys confidence of the majority of the
authoritative statement from him on that members of the Lok Sabha.
matter. In other words, the Lok Sabha can remove the
Like the zero hour, it is also an Indian innovation ministry from office by passing a no-confidence
in the parliamentary procedure and has been in motion.
existence since 1954. The motion needs the support of 50 members to
However, unlike the zero hour, it is mentioned be admitted.
in the Rules of Procedure. Confidence Motion
Adjournment Motion The motion of confidence has come up as a new
It is introduced in the Parliament to draw procedural device to cope with the emerging
attention of the House to a definite matter of situations of fractured mandates resulting in
urgent public importance, and needs the hung parliament, minority governments and
support of 50 members to be admitted. coalition governments.

As it interrupts the normal business of the The governments formed with wafer-thin
House, it is regarded as an extraordinary device. majority have been called upon by the President
to prove their majority on the floor of the House.
It involves an element of censure against the
government and hence Rajya Sabha is not The government of the day, sometimes, on its
permitted to make use of this device. own, seeks to prove its majority by moving a
motion of confidence and winning the
confidence of the House.
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If the confidence motion is negatived, it results Dilatory Motion

in the fall of the government.
It is a motion for the adjournment of the debate
Censure Motion on a bill / motion / resolution etc. or a motion to
retard or delay the progress of a business under
• It should state the reasons for its adoption in
consideration of the House.
the Lok Sabha.
• It can be moved against an individual It can be moved by a member at any time after a
minister or a group of ministers or the entire motion has been made.
council of ministers.
The debate on a dilatory motion must be
• It is moved for censuring the council of
restricted to the matter contained in such
ministers for specific policies and actions. motion.
• If it is passed in the Lok Sabha, the council of
ministers need not resign from the office. If the Speaker is of the opinion that such a
motion is an abuse of the rules of the House, he
Motion of Thanks may either forthwith put the question thereon
The first session after each general election and or decline to propose the question.
the first session of every fiscal year is addressed Point of Order
by the president.
A member can raise a point of order when the
In this address, the president outlines the proceedings of the House do not follow the
policies and programmes of the government in normal rules of procedure.
the preceding year and ensuing year.
A point of order should relate to the
This address of the president, which interpretation or enforcement of the Rules of
corresponds to the ‘speech from the Throne in the House or such articles of the Constitution
Britain’, is discussed in both the Houses of that regulate the business of the House and
Parliament on a motion called the ‘Motion of should raise a question that is within the
Thanks’. cognizance of the Speaker.
At the end of the discussion, the motion is put to It is usually raised by an opposition member in
vote. order to control the government.
This motion must be passed in the House. It is an extraordinary device as it suspends the
Otherwise, it amounts to the defeat of the proceedings before the House.
government.
No debate is allowed on a point of order.
This inaugural speech of the president is an
occasion available to the members of Half-an-Hour Discussion
Parliament to raise discussions and debates to
It is meant for discussing a matter of sufficient
examine and criticise the government and
public importance, which has been subjected to
administration for its lapses and failures.
a lot of debate and the answer to which needs
No-Day-Yet-Named Motion elucidation on a matter of fact.

It is a motion that has been admitted by the The Speaker can allot three days in a week for
Speaker but no date has been fixed for its such discussions.
discussion.
There is no formal motion or voting before the
The Speaker, after considering the state of House.
business in the House and in consultation with Short Duration Discussion
the leader of the House or on the
recommendation of the Business Advisory It is also known as two-hour discussion as the
Committee, allots a day or days or part of a day time allotted for such a discussion should not
for the discussion of such a motion. exceed two hours.
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The members of the Parliament can raise such “All resolutions come in the category of
discussions on a matter of urgent public substantive motions, that is to say, every
importance. resolution is a particular type of motion. All
motions need not necessarily be substantive.
The Speaker can allot two days in a week for
such discussions. Further, all motions are not necessarily put to
vote of the House, whereas all the resolutions
There is neither a formal motion before the
are required to be voted upon.”
house nor voting.
This device has been in existence since 1953.
Youth Parliament
The scheme of Youth Parliament was started on
Special Mention the recommendation of the Fourth All India
Whips Conference.
A matter which is not a point of order or which
cannot be raised during question hour, half-an Its objectives are:
hour discussion, short duration discussion or
under adjournment motion, calling attention • to acquaint the younger generations with
notice or under any rule of the House can be practices and procedures of Parliament;
raised under the special mention in the Rajya • to imbibe the spirit of discipline and
Sabha. tolerance cultivating character in the minds
of youth; and
Its equivalent procedural device in the Lok • to inculcate in the student community the
Sabha is known as ‘Notice (Mention) Under Rule basic values of democracy and to enable
377’. them to acquire a proper perspective on the
Resolutions functioning of democratic institutions.
The members can move resolutions to draw the The ministry of parliamentary affairs provides
attention of the House or the government to necessary training and encouragement to the
matters of general public interest. states in introducing the scheme.
The discussion on a resolution is strictly Legislative Procedure in Parliament
relevant to and within the scope of the
The legislative procedure is identical in both the
resolution.
Houses of Parliament.
A member who has moved a resolution or
Every bill has to pass through the same stages in
amendment to a resolution cannot withdraw
each House.
the same except by leave of the House.
A bill is a proposal for legislation and it becomes
Resolutions are classified into three categories:
an act or law when duly enacted.
• Private Member’s Resolution: It is one that Bills introduced in the Parliament are of two
is moved by a private member (other than a kinds: public bills and private bills (also known
minister). It is discussed only on alternate as government bills and private members’ bills
Fridays and in the afternoon sitting. respectively).
• Government Resolution: It is one that is
moved by a minister. It can be taken up any Though both are governed by the same general
day from Monday to Thursday. procedure and pass through the same stages in
• Statutory Resolution: It can be moved the House, they differ in various respects as
either by a private member or a minister. It mentioned below:
is so called because it is always tabled in Public Bill Private Bill
pursuance of a provision in the Constitution It is introduced in the It is introduced by
or an Act of Parliament. Parliament by a any member of
Resolutions are different from motions in the minister. Parliament other
than a minister.
following respects:
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It reflects of the It reflects the stand of Such a bill can be introduced either by a minister
policies of the opposition party on or by any other member.
government (ruling public matter.
party). The member who wants to introduce the bill has
It has greater chance It has lesser chance to to ask for the leave of the House.
to be approved by the be approved by the When the House grants leave to introduce the
Parliament. Parliament.
bill, the mover of the bill introduces it by reading
Its rejection by the Its rejection by the
its title and objectives.
House amounts to the House has no
expression of want of implication on the No discussion on the bill takes place at this
parliamentary parliamentary stage.
confidence in the confidence in the
government and may government or its Later, the bill is published in the Gazette of India.
lead to its resignation.
If a bill is published in the Gazette before its
resignation.
introduction, leave of the House to introduce the
Its introduction in the Its introduction in the
House requires seven House requires one bill is not necessary.
days’ notice. month’s notice. Under Rule 64 of Lok Sabha, the Speaker may, on
It is drafted by the Its drafting is the request being made to him, order the publication
concerned responsibility of the of any bill in the Gazette, although no motion has
department in member concerned.
been made for leave to introduce the bill.
consultation with the
law department. In that case, it shall not be necessary to move for
leave to introduce the bill and if the bill is
The bills introduced in the Parliament can also afterwards introduced, it shall not be necessary to
be classified into four categories: publish it again.

• Ordinary bills, which are concerned with The introduction of the bill and its publication in
the Gazette constitute the first reading of the
any matter other than financial subjects.
bill.
• Money bills, which are concerned with the
financial matters like taxation, public Second Reading
expenditure, etc.
During this stage, the bill receives not only the
• Financial bills, which are also concerned
general but also the detailed scrutiny and
with financial matters (but are different
assumes its final shape. Hence, it forms the most
from money bills).
important stage in the enactment of a bill.
• Constitution amendment bills, which are
concerned with the amendment of the This stage involves three more sub-stages,
provisions of the Constitution. namely, stage of general discussion, committee
stage and consideration stage.
The Constitution has laid down separate
procedures for the enactment of all the four Stage of General Discussion
types of bills.
The printed copies of the bill are distributed to
Ordinary Bills all the members.
Every ordinary bill has to pass through the
The principles of the bill and its provisions are
following five stages in the Parliament before it
discussed generally, but the details of the bill are
finds a place on the Statute Book:
not discussed.
First Reading
At this stage, the House can take any one of the
An ordinary bill can be introduced in either following four actions:
House of Parliament.
• It may take the bill into consideration
immediately or on some other fixed date;
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• It may refer the bill to a select committee of Bill in the Second House
the House;
In the second House also, the bill passes through
• It may refer the bill to a joint committee of
all the three stages, that is, first reading, second
the two Houses; and
reading and third reading.
• It may circulate the bill to elicit public
opinion. There are four alternatives before this House:

A Select Committee consists of members of the • it may pass the bill as sent by the first house
House where the bill has originated and a joint (i.e., without amendments);
committee consists of members of both the • it may pass the bill with amendments and
Houses of Parliament. return it to the first House for
reconsideration;
Committee Stage
• it may reject the bill altogether; and
The usual practice is to refer the bill to a select • it may not take any action and thus keep the
committee of the House. bill pending.
This committee examines the bill thoroughly If the second House passes the bill without any
and in detail, clause by clause. amendments or the first House accepts the
amendments suggested by the second House,
It can also amend its provisions, but without
the bill is deemed to have been passed by both
altering the principles underlying it.
the Houses and the same is sent to the president
After completing the scrutiny and discussion, for his assent.
the committee reports the bill back to the House.
On the other hand, if the first House rejects the
Consideration Stage amendments suggested by the second House or
the second House rejects the bill altogether or
The House, after receiving the bill from the
the second House does not take any action for
select committee, considers the provisions of
six months, a deadlock is deemed to have taken
the bill clause by clause.
place.
Each clause is discussed and voted upon
To resolve such a deadlock, the president can
separately.
summon a joint sitting of the two Houses.
The members can also move amendments and if
If the majority of members present and voting in
accepted, they become part of the bill.
the joint sitting approves the bill, the bill is
Third Reading deemed to have been passed by both the
Houses.
At this stage, the debate is confined to the
acceptance or rejection of the bill as a whole and Assent of the President
no amendments are allowed, as the general
Every bill after being passed by both Houses of
principles underlying the bill have already been
Parliament either singly or at a joint sitting, is
scrutinised during the stage of second reading.
presented to the president for his assent.
If the majority of members present and voting
There are three alternatives before the
accept the bill, the bill is regarded as passed by
president:
the House. Thereafter, the bill is authenticated
by the presiding officer of the House and • he may give his assent to the bill; or
transmitted to the second House for • he may withhold his assent to the bill; or
consideration and approval. • he may return the bill for reconsideration of
the Houses.
A bill is deemed to have been passed by the
Parliament only when both the Houses have If the president gives his assent to the bill, the
agreed to it, either with or without amendments. bill becomes an act and is placed on the Statute
Book.
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If the President withholds his assent to the bill, be questioned in any court of law or in the either
it ends and does not become an act. House of Parliament or even the president.
If the President returns the bill for When a money bill is transmitted to the Rajya
reconsideration and if it is passed by both the Sabha for recommendation and presented to the
Houses again with or without amendments and president for assent, the Speaker endorses it as
presented to the President for his assent, the a money bill.
president must give his assent to the bill. Thus,
The Constitution lays down a special procedure
the President enjoys only a “suspensive veto.”
for the passing of money bills in the Parliament.
Money Bills
A money bill can only be introduced in the Lok
Article 110 of the Constitution deals with the
Sabha and that too on the recommendation of
definition of money bills. It states that a bill is
the president.
deemed to be a money bill if it contains ‘only’
provisions dealing with all or any of the Every such bill is considered to be a government
following matters: bill and can be introduced only by a minister.
• The imposition, abolition, remission, After a money bill is passed by the Lok Sabha, it
alteration or regulation of any tax; is transmitted to the Rajya Sabha for its
• The regulation of the borrowing of money by consideration.
the Union government;
The Rajya Sabha has restricted powers with
• The custody of the Consolidated Fund of
regard to a money bill. It cannot reject or amend
India or the contingency fund of India, the
a money bill. It can only make the
payment of moneys into or the withdrawal
recommendations.
of money from any such fund;
• The appropriation of money out of the It must return the bill to the Lok Sabha within
Consolidated Fund of India; 14 days, whether with or without
• Declaration of any expenditure charged on recommendations.
the Consolidated Fund of India or increasing
The Lok Sabha can either accept or reject all or
the amount of any such expenditure;
any of the recommendations of the Rajya Sabha.
• The receipt of money on account of the
Consolidated Fund of India or the public If the Lok Sabha accepts any recommendation,
account of India or the custody or issue of the bill is then deemed to have been passed by
such money, or the audit of the accounts of both the Houses in the modified form.
the Union or of a state; or
If the Lok Sabha does not accept any
• Any matter incidental to any of the matters recommendation, the bill is then deemed to
specified above. have passed by both the Houses in the form
However, a bill is not to be deemed to be a originally passed by the Lok Sabha without any
money bill by reason only that it provides for: change.

• the imposition of fines or other pecuniary If the Rajya Sabha does not return the bill to the
penalties, or Lok Sabha within 14 days, the bill is deemed to
• the demand or payment of fees for licenses have been passed by both the Houses in the
or fees for services rendered; or form originally passed by the Lok Sabha.
• the imposition, abolition, remission, Thus, the Lok Sabha has more powers than
alteration or regulation of any tax by any Rajya Sabha with regard to a money bill.
local authority or body for local purposes.
On the other hand, both the Houses have equal
If any question arises whether a bill is a money powers with regard to an ordinary bill.
bill or not, the decision of the Speaker of the Lok
Sabha is final. His decision in this regard cannot Finally, when a money bill is presented to the
president, he may either give his assent to the
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bill or withhold his assent to the bill but cannot summoned by the
return the bill for reconsideration of the Houses. president to resolve
the deadlock.
Normally, the president gives his assent to a Its defeat in the Lok Its defeat in the Lok
money bill as it is introduced in the Parliament Sabha may lead to Sabha leads to the
with his prior permission. the resignation of the resignation of the
government (if it is government.
Ordinary Bill vs Money Bill
introduced by a
Ordinary Bill Money Bill minister).
It can be introduced It can be introduced It can be rejected, It can be rejected or
either in the Lok only in the Lok Sabha approved, or approved but cannot
Sabha or the Rajya and not in the Rajya returned for be returned for
Sabha. Sabha. reconsideration by reconsideration by
It can be introduced It can be introduced the President. the President.
either by a minister only by a minister.
or by a private
member. Financial Bills (I)
It is introduced It can be introduced A financial bill (I) is a bill that contains not only
without the only on the any or all the matters mentioned in Article 110,
recommendation of recommendation of but also other matters of general legislation.
the president. the President.
It can be amended or It cannot be amended For instance, a bill that contains a borrowing
rejected by the Rajya or rejected by the clause, but does not exclusively deal with
Sabha. Rajya Sabha. borrowing.
The Rajya Sabha
should return the bill In two respects, a financial bill (I) is similar to a
with or without money bill
recommendations,
• both of them can be introduced only in the
which may be
Lok Sabha and not in the Rajya Sabha, and
accepted or rejected
by the Lok Sabha. • both of them can be introduced only on the
It can be detained by It can be detained by recommendation of the president.
the Rajya Sabha for a the Rajya Sabha for a In all other respects, a financial bill (I) is
maximum period of maximum period of
governed by the same legislative procedure
six months. 14 days only.
applicable to an ordinary bill.
It does not require It requires the
the certification of certification of the Hence, it can be either rejected or amended by
the Speaker when Speaker when the Rajya Sabha (except that an amendment
transmitted to the transmitted to the other than for reduction or abolition of a tax
Rajya Sabha (if it has Rajya Sabha. cannot be moved in either House without the
originated in the Lok
recommendation of the president i.e., the
Sabha).
recommendation of president is not required
It is sent for the It is sent for the
President’s assent President’s assent for moving an amendment making provision for
only after being even if it is approved the reduction or abolition of a tax).
approved by both by only Lok Sabha. In case of a disagreement between the two
the There is no chance of Houses over such a bill, the president can
Houses. any disagreement
summon a joint sitting of the two Houses to
In case of a deadlock between the two
resolve the deadlock.
due to disagreement Houses and hence,
between the two there is no provision When the bill is presented to the President, he
Houses, a joint of joint sitting of both can either give his assent to the bill or withhold
sitting of both the the Houses in this his assent to the bill or return the bill for
houses can be regard. reconsideration of the Houses.
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Financial Bills (II) In the above three situations, the president can
A financial bill (II) contains provisions involving summon both the Houses to meet in a joint
expenditure from the Consolidated Fund of sitting for the purpose of deliberating and
India, but does not include any of the matters voting on the bill.
mentioned in Article 110. It is treated as an
The provision of joint sitting is applicable to
ordinary bill and in all respects, it is governed by
ordinary bills or financial bills only and not to
the same legislative procedure which is
money bills or Constitutional amendment bills.
applicable to an ordinary bill.
In the case of a money bill, the Lok Sabha has
The only special feature of this bill is that it
overriding powers, while a Constitutional
cannot be passed by either House of Parliament
amendment bill must be passed by each House
unless the President has recommended to that
separately.
House the consideration of the bill.
In reckoning the period of six months, no
Hence, financial bill (II) can be introduced in
account can be taken of any period during which
either House of Parliament and
the other House (to which the bill has been sent)
recommendation of the President is not
is prorogued or adjourned for more than four
necessary for its introduction. In other words,
consecutive days.
the recommendation of the President is not
required at the introduction stage but is If the bill (under dispute) has already lapsed due
required at the consideration stage. to the dissolution of the Lok Sabha, no joint
sitting can be summoned.
It can be either rejected or amended by either
House of Parliament. But, the joint sitting can be held if the Lok Sabha
is dissolved after the President has notified his
In case of a disagreement between the two
intention to summon such a sitting (as the bill
Houses over such a bill, the President can
does not lapse in this case).
summon a joint sitting of the two Houses to
resolve the deadlock. After the President notifies his intention to
summon a joint sitting of the two Houses, none
When the bill is presented to the President, he
of the Houses can proceed further with the bill.
can either give his assent to the bill or withhold
his assent to the bill or return the bill for The Speaker of Lok Sabha presides over a joint
reconsideration of the Houses. sitting of the two Houses and the Deputy
Speaker, in his absence. If the Deputy Speaker is
Joint Sitting of two houses also absent from a joint sitting, the Deputy
Joint sitting is an extraordinary machinery Chairman of Rajya Sabha presides. If he is also
provided by the Constitution to resolve a absent, such other person as may be determined
deadlock between the two Houses over the by the members present at the joint sitting,
passage of a bill. presides over the meeting.
A deadlock is deemed to have taken place under The Chairman of Rajya Sabha does not preside
any one of the following three situations after a over a joint sitting as he is not a member of
bill has been passed by one House and either House of Parliament.
transmitted to the other House:
The quorum to constitute a joint sitting is one-
• if the bill is rejected by the other House; tenth of the total number of members of the two
• if the Houses have finally disagreed as to the Houses.
amendments to be made in the bill; or
• if more than six months have elapsed from The joint sitting is governed by the Rules of
the date of the receipt of the bill by the other Procedure of Lok Sabha and not of Rajya Sabha.
House without the bill being passed by it. If the bill in dispute is passed by a majority of the
total number of members of both the Houses

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present and voting in the joint sitting, the bill is April and ends on 31st March of the following
deemed to have been passed by both the year.
Houses.
In addition to the estimates of receipts and
Normally, the Lok Sabha with greater number expenditure, the budget contains certain other
wins the battle in a joint sitting. elements. Overall, the budget contains the
following:
The Constitution has specified that at a joint
sitting, new amendments to the bill cannot be • Estimates of revenue and capital receipts;
proposed except in two cases: • Ways and means to raise the revenue;
• Estimates of expenditure;
• those amendments that have caused final
• Details of the actual receipts and
disagreement between the Houses; and
expenditure of the closing financial year and
• those amendments that might have become
the reasons for any deficit or surplus in that
necessary due to the delay in the passage of
year; and
the bill.
• Economic and financial policy of the coming
Since 1950, the provision regarding the joint year, that is, taxation proposals, prospects of
sitting of the two Houses has been invoked only revenue, spending programme and
thrice. The bills that have been passed at joint introduction of new schemes/projects.
sittings are:
Till 2017, the Government of India had two
1. Dowry Prohibition Bill, 1960 budgets, namely, the Railway Budget and the
General Budget.
The Lok Sabha did not agree to the amendments
made by the Rajya Sabha. A joint sitting was held While the former consisted of the estimates of
on 6 May 1961. receipts and expenditures of only the Ministry
of Railways, the latter consisted of the estimates
2. Banking Service Commission (Repeal) Bill,
of receipts and expenditure of all the ministries
1977
of the Government of India (except the
The bill was passed by the Lok Sabha but rejected railways).
by the Rajya Sabha. A joint sitting was held on 16
The Railway Budget was separated from the
May 1978.
General Budget in 1924 on the
3. Prevention of Terrorism Bill, 2002 recommendations of the Acworth Committee
Report (1921).
The bill was passed by the Lok Sabha but rejected
by the Rajya Sabha. A joint sitting was held on 26 The reasons or objectives of this separation
March 2002. The bill was passed when 425 were as follows:
members voted for it and 296 against.
• To introduce flexibility in railway finance.
Budget in Parliament • To facilitate a business approach to the
The Constitution refers to the budget as the railway policy.
‘annual financial statement’. In other words, the • To secure stability of the general revenues
term ‘budget’ has nowhere been used in the by providing an assured annual contribution
Constitution. from railway revenues.
• To enable the railways to keep their profits
It is the popular name for the ‘annual financial
for their own development (after paying a
statement’ that has been dealt with in Article
fixed annual contribution to the general
112 of the Constitution.
revenues).
The budget is a statement of the estimated
In 2017, the Central Government merged the
receipts and expenditure of the Government of
railway budget into the general budget. Hence,
India in a financial year, which begins on 1st
there is now only one budget for the
Government of India i.e., Union Budget.
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Constitutional Provisions submitted to the vote of Parliament.

The Constitution of India contains the following However, it can be discussed by the
provisions with regard to the enactment of Parliament.
budget:
Charged Expenditure
• The President shall in respect of every The budget consists of two types of
financial year cause to be laid before both expenditure–the expenditure ‘charged’ upon
the Houses of Parliament a statement of the Consolidated Fund of India and the
estimated receipts and expenditure of the expenditure ‘made’ from the Consolidated Fund
Government of India for that year. of India.
• No demand for a grant shall be made except
The charged expenditure is non-votable by the
on the recommendation of the President.
Parliament, that is, it can only be discussed by
• No money shall be withdrawn from the the Parliament, while the other type has to be
Consolidated Fund of India except under voted by the Parliament.
appropriation made by law.
• No money bill imposing tax shall be The list of the charged expenditure is as follows:
introduced in the Parliament except on the
• Emoluments and allowances of the
recommendation of the President, and such
President and other expenditure relating to
a bill shall not be introduced in the Rajya
his office.
Sabha.
• Salaries and allowances of the Chairman and
• No tax shall be levied or collected except by
the Deputy Chairman of the Rajya Sabha and
authority of law.
the Speaker and the Deputy Speaker of the
• Parliament can reduce or abolish a tax but
Lok Sabha.
cannot increase it.
• Salaries, allowances and pensions of the
• The Constitution has also defined the
judges of the Supreme Court.
relative roles or position of both the Houses
• Pensions of the judges of high courts.
of Parliament with regard to the enactment
• Salary, allowances and pension of the
of the budget in the following way:
Comptroller and Auditor General of India.
o A money bill or finance bill dealing with
• Salaries, allowances and pension of the
taxation cannot be introduced in the
chairman and members of the Union Public
Rajya Sabha–it must be introduced only
Service Commission.
in the Lok Sabha.
• Administrative expenses of the Supreme
o The Rajya Sabha has no power to vote on
Court, the office of the Comptroller and
the demand for grants; it is the exclusive
Auditor General of India and the Union
privilege of the Lok Sabha.
Public Service Commission including the
o The Rajya Sabha should return the
salaries, allowances and pensions of the
Money bill (or Finance bill) to the Lok
persons serving in these offices.
Sabha within fourteen days. The Lok
Sabha can either accept or reject the • The debt charges for which the Government
recommendations made by Rajya Sabha of India is liable, including interest, sinking
in this regard. fund charges and redemption charges and
other expenditure relating to the raising of
• The estimates of expenditure embodied in
loans and the service and redemption of
the budget shall show separately the
debt.
expenditure charged on the Consolidated
Fund of India and the expenditure made • Any sum required to satisfy any judgement,
from the Consolidated Fund of India. decree or award of any court or arbitral
tribunal.
• The budget shall distinguish expenditure on
revenue account from other expenditure. • Any other expenditure declared by the
Parliament to be so charged.
• The expenditure charged on the
Consolidated Fund of India shall not be
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Stages in Enactment c) Medium Term Fiscal Policy

The budget goes through the following six Statement
stages in the Parliament:
(vii) Expenditure Budget
1. Presentation of budget.
(viii) Receipts Budget
2. General discussion.
(ix) Expenditure Profile
3. Scrutiny by departmental committees.
(x) Memorandum Explaining the Provisions in
4. Voting on demands for grants. the Finance Bill
5. Passing of appropriation bill. (xi) Budget at a Glance
6. Passing of finance bill. (xii) Outcome Budget
Presentation of Budget Earlier, the Economic Survey also used to be
presented to the Parliament along with the
Conventionally, the budget is presented to the
budget.
Lok Sabha by the finance minister on the last
working day of February. Now, it is presented one day or a few days
before the presentation of the budget. This
Since 2017, the presentation of the budget has
report is prepared by the finance ministry and
been advanced to 1st of February.
indicates the status of the national economy.
The Budget can also be presented to the House
General Discussion
in two or more parts and when such
presentation takes place, each part shall be dealt The general discussion on budget begins a few
with as if it were the budget. days after its presentation. It takes place in both
the Houses of Parliament and lasts usually for
Further, there shall be no discussion of the
three to four days.
budget on the day on which it is presented to the
House. During this stage, the Lok Sabha can discuss the
budget as a whole or on any question of
The finance minister presents the budget with a
principle involved therein but no cut motion can
speech known as the ‘budget speech’.
be moved nor can the budget be submitted to
At the end of the speech in the Lok Sabha, the the vote of the House.
budget is laid before the Rajya Sabha, which can
The finance minister has a general right of reply
only discuss it and has no power to vote on the
at the end of the discussion.
demands for grants.
Scrutiny by Departmental Committees
The budget documents presented to the
Parliament comprise of the following: After the general discussion on the budget is
over, the Houses are adjourned for about three
(i) Budget Speech
to four weeks. During this gap period, the 24
(ii) Annual Financial Statement departmental standing committees of
Parliament examine and discuss in detail the
(iii) Demands for Grants
demands for grants of the concerned ministers
(iv) Appropriation Bill and prepare reports on them.

(v) Finance Bill These reports are submitted to both the Houses
of Parliament for consideration. The standing
(vi) Statements mandated under the FRBM Act: committee system established in 1993 (and
a) Macro-Economic Framework expanded in 2004) makes parliamentary
Statement financial control over ministries much more
b) Fiscal Policy Strategy Statement detailed, close, in-depth and comprehensive.
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Voting on Demands for Grants • It should be clearly expressed and should

not contain arguments or defamatory
In the light of the reports of the departmental
statements.
standing committees, the Lok Sabha takes up
• It should be confined to one specific matter.
voting of demands for grants.
• It should not make suggestions for the
The demands are presented ministry-wise. A amendment or repeal of existing laws.
demand becomes a grant after it has been duly • It should not refer to a matter that is not
voted. primarily the concern of Union government.
Two points should be noted in this context. One, • It should not relate to the expenditure
the voting of demands for grants is the exclusive charged on the Consolidated Fund of India.
privilege of the Lok Sabha, that is, the Rajya • It should not relate to a matter that is under
Sabha has no power of voting the demands. adjudication by a court.
• It should not raise a question of privilege.
Second, the voting is confined to the votable part • It should not revive discussion on a matter
of the budget– the expenditure charged on the on which a decision has been taken in the
Consolidated Fund of India is not submitted to same session.
the vote (it can only be discussed). • It should not relate to a trivial matter.
Each demand is voted separately by the Lok • It should not reflect on the character or
Sabha. During this stage, the members of conduct of any person whose conduct can
Parliament can discuss the details of the budget. only be challenged on a substantive motion.
They can also move motions to reduce any • It should not anticipate a matter which has
demand for grant. Such motions are called as been previously appointed for consideration
‘cut motion’, which are of three kinds: in the same session.
• It should not seek to raise a discussion on a
Policy Cut Motion matter pending before any statutory
It represents the disapproval of the policy tribunal or statutory authority performing
underlying the demand. It states that the judicial or quasi-judicial functions or any
amount of the demand be reduced to Re 1. The commission or court of enquiry.
members can also advocate an alternative The significance of a cut motion lies in: (a)
policy. facilitating the initiation of concentrated
Economy Cut Motion discussion on a specific demand for grant; and
(b) upholding the principle of responsible
It represents the economy that can be affected government by probing the activities of the
in the proposed expenditure. It states that the government.
amount of the demand be reduced by a specified
amount (which may be either a lumpsum However, the cut motion do not have much
reduction in the demand or ommission or utility in practice. They are only moved and
reduction of an item in the demand). discussed in the House but not passed as the
government enjoys majority support.
Token Cut Motion
Their passage by the Lok Sabha amounts to the
It ventilates a specific grievance that is within expressions of want of parliamentary
the sphere of responsibility of the Government confidence in the government and may lead to
of India. It states that the amount of the demand its resignation.
be reduced by ₹100.
On the last day of the days allotted for
A cut motion, to be admissible, must satisfy the discussion and voting on the demands for
following conditions: grants, the Speaker puts all the remaining
• It should relate to one demand only. demands to vote and disposes them whether
they have been discussed by the members or
not. This is known as ‘guillotine’.
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Passing of Appropriation Bill Passing of Finance Bill

The Constitution states that ‘no money shall be The Finance Bill is introduced to give effect to
withdrawn from the Consolidated Fund of India the financial proposals of the Government of
except under appropriation made by law’. India for the following year.
Accordingly, an appropriation bill is introduced
It is subjected to all the conditions applicable to
to provide for the appropriation, out of the
a Money Bill.
Consolidated Fund of India, all money required
to meet: Unlike the Appropriation Bill, the amendments
(seeking to reject or reduce a tax) can be moved
• The grants voted by the Lok Sabha.
in the case of finance bill.
• The expenditure charged on the
Consolidated Fund of India. According to the Provisional Collection of Taxes
Act of 1931, the Finance Bill must be enacted
No such amendment can be proposed to the
(i.e., passed by the Parliament and assented to
appropriation bill in either house of the
by the president) within 75 days.
Parliament that will have the effect of varying
the amount or altering the destination of any The Finance Act legalises the income side of the
grant voted, or of varying the amount of any budget and completes the process of the
expenditure charged on the Consolidated Fund enactment of the budget.
of India.
Other Grants
The Appropriation Bill becomes the
In addition to the budget that contains the
Appropriation Act after it is assented to by the
ordinary estimates of income and expenditure
President. This act authorises (or legalises) the
for one financial year, various other grants are
payments from the Consolidated Fund of India.
made by the Parliament under extraordinary or
This means that the government cannot special circumstances:
withdraw money from the Consolidated Fund of
Supplementary Grant
India till the enactment of the appropriation bill.
It is granted when the amount authorised by the
This takes time and usually goes on till the end
Parliament through the appropriation act for a
of April. But the government needs money to
particular service for the current financial year
carry on its normal activities after 31 March (the
is found to be insufficient for that year.
end of the financial year). To overcome this
functional difficulty, the Constitution has Additional Grant
authorised the Lok Sabha to make any grant in
It is granted when a need has arisen during the
advance in respect to the estimated expenditure
current financial year for additional
for a part of the financial year, pending the
expenditure upon some new service not
completion of the voting of the demands for
contemplated in the budget for that year.
grants and the enactment of the appropriation
bill. Excess Grant
This provision is known as the ‘vote on account’. It is granted when money has been spent on any
It is passed (or granted) after the general service during a financial year in excess of the
discussion on budget is over. amount granted for that service in the budget
for that year. It is voted by the Lok Sabha after
It is generally granted for two months for an
the financial year. Before the demands for
amount equivalent to one-sixth of the total
excess grants are submitted to the Lok Sabha for
estimation.
voting, they must be approved by the Public
Accounts Committee of Parliament.
Vote of Credit

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It is granted for meeting an unexpected demand appropriated (issued or drawn) except in

upon the resources of India, when on account of accordance with a parliamentary law.
the magnitude or the indefinite character of the
Public Account of India
service, the demand cannot be stated with the
All other public money (other than those which
details ordinarily given in a budget. Hence, it is
are credited to the Consolidated Fund of India)
like a blank cheque given to the Executive by the
received by or on behalf of the Government of
Lok Sabha.
India shall be credited to the Public Account of
Exceptional Grant India.
It is granted for a special purpose and forms no This includes provident fund deposits, judicial
part of the current service of any financial year. deposits, savings bank deposits, departmental
deposits, remittances and so on.
Token Grant
This account is operated by executive action,
It is granted when funds to meet the proposed
that is, the payments from this account can be
expenditure on a new service can be made
made without parliamentary appropriation.
available by reappropriation. A demand for the
grant of a token sum (of Re 1) is submitted to the Such payments are mostly in the nature of
vote of the Lok Sabha and if assented, funds are banking transactions.
made available. Reappropriation involves
Contingency Fund of India
transfer of funds from one head to another. It
The Constitution authorised the Parliament to
does not involve any additional expenditure.
establish a ‘Contingency Fund of India’, into
Supplementary, additional, excess and
which amounts determined by law are paid
exceptional grants and vote of credit are
from time to time.
regulated by the same procedure which is
applicable in the case of a regular budget. Accordingly, the Parliament enacted the
contingency fund of India Act in 1950. This fund
Funds is placed at the disposal of the president, and he
The Constitution of India provides for the can make advances out of it to meet unforeseen
following three kinds of funds for the Central expenditure pending its authorisation by the
government: Parliament.
• Consolidated Fund of India (Article 266) The fund is held by the finance secretary on
• Public Account of India (Article 266) behalf of the president. Like the public account
• Contingency Fund of India (Article 267) of India, it is also operated by executive action.
Consolidated Fund of India Multifunctional Role of Parliament
It is a fund to which all receipts are credited and In the ‘Indian politico-administrative system’,
all payments are debited. In other words,
the Parliament occupies a central position and
• all revenues received by the Government has a multifunctional role.
of India; It enjoys extensive powers and performs a
• all loans raised by the Government by the variety of functions towards the fulfilment of its
issue of treasury bills, loans or ways and constitutionally expected role.
means of advances; and
• all money received by the government in Its powers and functions can be classified under
repayment of loans forms the the following heads:
Consolidated Fund of India. • Legislative Powers and Functions
All the legally authorised payments on behalf of • Executive Powers and Functions
the Government of India are made out of this • Financial Powers and Functions
fund. No money out of this fund can be • Constituent Powers and Functions
• Judicial Powers and Functions
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• Electoral Powers and Functions Executive Powers and Functions

• Other powers and functions. The Constitution of India established a
parliamentary form of government in which the
Legislative Powers and Functions Executive is responsible to the Parliament for its
The primary function of Parliament is to make policies and acts. Hence, the Parliament
laws for the governance of the country. It has exercises control over the Executive through
exclusive power to make laws on the subjects question-hour, zero hour, half-an-hour
enumerated in the Union List (which at present discussion, short duration discussion, calling
has 98 subjects, originally 97 subjects) and on attention motion, adjournment motion, no-
the residuary subjects (that is, subjects not confidence motion, censure motion and other
enumerated in any of the three lists). discussions.
With regard to Concurrent List (which has at It also supervises the activities of the Executive
present 52 subjects, originally 47 subjects), the with the help of its committees like committee
Parliament has overriding powers, that is, the on government assurance, committee on
law of Parliament prevails over the law of the subordinate legislation, committee on petitions,
state legislature in case of a conflict between the etc.
two.
The ministers are collectively responsible to the
The Constitution also empowers the Parliament Parliament in general and to the Lok Sabha in
to make laws on the subjects enumerated in the particular. As a part of collective responsibility,
State List (which at present has 59 subjects, there is individual responsibility, that is, each
originally 66 subjects) under the following five minister is individually responsible for the
abnormal circumstances: efficient administration of the ministry under
• when Rajya Sabha passes a resolution to that his charge. This means that they continue in
effect. office so long as they enjoy the confidence of the
• when a proclamation of National Emergency majority members in the Lok Sabha.
is in operation. In other words, the council of ministers can be
• when two or more states make a joint removed from office by the Lok Sabha by
request to the Parliament. passing a no-confidence motion. The Lok Sabha
• when necessary to give effect to can also express lack of confidence in the
international agreements, treaties and government in the following ways:
conventions.
• when President’s Rule is in operation in the • By not passing a motion of thanks on the
state. President’s inaugural address.
• By rejecting a money bill.
All the ordinances issued by the president • By passing a censure motion or an
(during the recess of the Parliament) must be adjournment motion.
approved by the Parliament within six weeks • By defeating the government on a vital issue.
after its reassembly. An ordinance becomes • By passing a cut motion.
inoperative if it is not approved by the
parliament within that period. Therefore, “the first function of Parliament can
be said to be to select the group which is to form
The Parliament makes laws in a skeleton form the government, support and sustain it in power
and authorises the Executive to make detailed so long as it enjoys its confidence, and to expel it
rules and regulations within the framework of when it ceases to do so, and leave it to the people
the parent law. This is known as delegated to decide at the next general election.”
legislation or executive legislation or
subordinate legislation. Financial Powers and Functions
No tax can be levied or collected and no
Such rules and regulations are placed before the expenditure can be incurred by the Executive
Parliament for its examination.
except under the authority and with the
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approval of Parliament. Hence, the budget is membership of each House and a majority of not
placed before the Parliament for its approval. less than two-thirds of the members present
and voting in each House.
The enactment of the budget by the Parliament
legalises the receipts and expenditure of the Some other provisions of the Constitution can
government for the ensuing financial year. be amended by the Parliament with simple
majority, that is, a majority of the members
The Parliament also scrutinises government
present and voting in each House of Parliament.
spending and financial performance with the
help of its financial committees. Only a few provisions of the Constitution can be
amended by the Parliament (by special
These include public accounts committee,
majority) and with the consent of at least half of
estimates committee and committee on public
the state Legislatures (by simple majority).
undertakings. They bring out the cases of illegal,
irregular, unauthorised, improper usage and However, the power to initiate the process of
wastage and extravagance in public the amendment of the Constitution (in all the
expenditure. three cases) lies exclusively in the hands of the
Parliament and not the state legislature.
Therefore, the parliamentary control over the
Executive in financial matters operates in two There is only one exception, that is, the state
stages: legislature can pass a resolution requesting the
Parliament for the creation or abolition of the
• budgetary control, that is, control before the
legislative council in the state.
appropriation of grants through the
enactment of the budget; and Based on the resolution, the Parliament makes
• post-budgetary control, that is, control after an act for amending the Constitution to that
the appropriation of grants through the effect. To sum up, the Parliament can amend the
three financial committees. Constitution in three ways:

The budget is based on the principle of annuity, • By simple majority;

that is, the Parliament grants money to the • By special majority; and
government for one financial year. • By special majority but with the consent of
half of all the state legislatures.
If the granted money is not spent by the end of
the financial year, then the balance expires and The constituent power of the Parliament is not
returns to the Consolidated Fund of India. This unlimited; it is subject to the ‘basic structure’ of
practice is known as the ‘rule of lapse’. the Constitution.
It facilitates effective financial control by the In others words, the Parliament can amend any
Parliament as no reserve funds can be built provision of the Constitution except the ‘basic
without its authorisation. features’ of the Constitution. This was ruled by
the Supreme Court in the Kesavananda Bharati
However, the observance of this rule leads to
case (1973) and reaffirmed in the Minerva Mills
heavy rush of expenditure towards the close of
case (1980).
the financial year. This is popularly called as
‘March Rush’. Judicial Powers and Functions
The judicial powers and functions of the
Constituent Powers and Functions
Parliament include the following:
The Parliament is vested with the powers to
amend the Constitution by way of addition, • It can impeach the President for the
variation or repeal of any provision. violation of the Constitution.
• It can remove the Vice-President from his
The major part of the Constitution can be
office.
amended by the Parliament with special
majority, that is, a majority of the total • It can recommend the removal of judges
(including chief justice) of the Supreme
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Court and the high courts, chief election than practical. In reality, the control is not as
commissioner, comptroller and auditor effective as it ought to be.
general to the president.
The following factors are responsible for this:
• It can punish its members or outsiders for
the breach of its privileges or its contempt. • The Parliament has neither time nor
expertise to control the administration
Electoral Powers and Functions
which has grown in volume as well as
The Parliament participates in the election of
complexity.
the President (along with the state legislative
• Parliament’s financial control is hindered by
assemblies) and elects the Vice- President.
the technical nature of the demands for
The Lok Sabha elects its Speaker and Deputy grants. The parliamentarians being laymen
Speaker, while the Rajya Sabha elects its Deputy cannot understand them properly and fully.
Chairman. • The legislative leadership lies with the
Executive and it plays a significant role in
The Parliament is also authorised to make laws
formulating policies.
to regulate the elections to the offices of
• The very size of the Parliament is too large
President and Vice-President, to both the
and unmanageable to be effective.
Houses of Parliament and to both the Houses of
state legislature. • The majority support enjoyed by the
Executive in the Parliament reduces the
Accordingly, Parliament enacted the possibility of effective criticism.
Presidential and Vice-Presidential Election Act • The financial committees like Public
(1952), the Representation of People Act Accounts Committee examines the public
(1950), the Representation of People Act expenditure after it has been incurred by the
(1951), etc. Executive. Thus, they do post mortem work.
Other Powers and Functions • The increased recourse to ‘guillotine’
The various other powers and functions of the reduced the scope of financial control.
Parliament include: • The growth of ‘delegated legislation’ has
reduced the role of Parliament in making
• It serves as the highest deliberative body in detailed laws and has increased the powers
the country. It discusses various issues of of bureaucracy.
national and international significance. • The frequent promulgation of ordinances by
• It approves all the three types of the president dilutes the Parliament’s power
emergencies (national, state and financial) of legislation.
proclaimed by the President. • The Parliament’s control is sporadic, general
• It can create or abolish the state legislative and mostly political in nature.
councils on the recommendation of the • Lack of strong and steady opposition in the
concerned state legislative assemblies. Parliament, and a setback in the
• It can increase or decrease the area, alter the parliamentary behaviour and ethics, have
boundaries and change the names of states also contributed to the ineffectiveness of
of the Indian Union. legislative control over administration in
• It can regulate the organisation and India.
jurisdiction of the Supreme Court and high
courts and can establish a common high Position of Rajya Sabha
court for two or more states. The Constitutional position of the Rajya Sabha
(as compared with the Lok Sabha) can be
Ineffectiveness of Parliamentary studied from three angles:
Control
• Where Rajya Sabha is equal to Lok Sabha.
The parliamentary control over government
• Where Rajya Sabha is unequal to Lok Sabha.
and administration in India is more theoretical

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• Where Rajya Sabha has special powers that • A Money Bill can be introduced only in the
are not at all shared with the Lok Sabha. Lok Sabha and not in the Rajya Sabha.
• Rajya Sabha cannot amend or reject a Money
Equal Status with Lok Sabha
Bill. It should return the bill to the Lok Sabha
In the following matters, the powers and status
within 14 days, either with
of the Rajya Sabha are equal to that of the Lok
recommendations or without
Sabha:
recommendations.
• Introduction and passage of ordinary bills. • The Lok Sabha can either accept or reject all
• Introduction and passage of Constitutional or any of the recommendations of the Rajya
amendment bills. Sabha. In both the cases, the money bill is
• Introduction and passage of financial bills deemed to have been passed by the two
involving expenditure from the Houses.
Consolidated Fund of India. • A financial bill, not containing solely the
• Election and impeachment of the president. matters of Article 110, also can be
• Election and removal of the Vice-President. introduced only in the Lok Sabha and not in
However, Rajya Sabha alone can initiate the the Rajya Sabha. But, with regard to its
removal of the vice-president. passage, both the Houses have equal powers.
• The final power to decide whether a
He is removed by a resolution passed by the particular bill is a Money Bill or not is vested
Rajya Sabha by an effective majority (which is a in the Speaker of the Lok Sabha.
type of special majority) and agreed to by the
• The Speaker of Lok Sabha presides over the
Lok Sabha by a simple majority.
joint sitting of both the Houses.
• Making recommendation to the President • The Lok Sabha with greater number wins the
for the removal of Chief Justice and judges of battle in a joint sitting except when the
Supreme Court and high courts, chief combined strength of the ruling party in
election commissioner and comptroller and both the Houses is less than that of the
auditor general. opposition parties.
• Approval of ordinances issued by the • Rajya Sabha can only discuss the budget but
President. cannot vote on the demands for grants
• Approval of proclamation of all three types (which is the exclusive privilege of the Lok
of emergencies by the President. Sabha).
• Selection of ministers including the Prime • A resolution for the discontinuance of the
Minister. Under the Constitution, the national emergency can be passed only by
ministers including the Prime Minister can the Lok Sabha and not by the Rajya Sabha.
be members of either House. However, • The Rajya Sabha cannot remove the council
irrespective of their membership, they are of ministers by passing a no-confidence
responsible only to the Lok Sabha. motion. This is because the Council of
• Consideration of the reports of the ministers is collectively responsible only to
constitutional bodies like Finance the Lok Sabha.
Commission, Union Public Service But, the Rajya Sabha can discuss and criticise the
Commission, comptroller and auditor policies and activities of the government.
general, etc.
• Enlargement of the jurisdiction of the Special Powers of Rajya Sabha
Supreme Court and the Union Public Service The Rajya Sabha has been given four exclusive
Commission. or special powers that are not enjoyed by the
Lok Sabha:
Unequal Status with Lok Sabha
In the following matters, the powers and status • It can authorise the Parliament to make a
of the Rajya Sabha are unequal to that of the Lok law on a subject enumerated in the State List
Sabha: (Article 249).
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• It can authorise the Parliament to create new Parliamentary Privileges

All-India Services common to both the Meaning
Centre and states (Article 312). Parliamentary privileges are special rights,
• It alone can initiate a move for the removal immunities and exemptions enjoyed by the two
of the vice-president. Houses of Parliament, their committees and
In other words, a resolution for the removal of their members.
the vice-president can be introduced only in the They are necessary in order to secure the
Rajya Sabha and not in the Lok Sabha (Article independence and effectiveness of their actions.
67).
Without these privileges, the Houses can neither
• If a proclamation is issued by the President maintain their authority, dignity and honour nor
for imposing national emergency or can protect their members from any obstruction
president’s rule or financial emergency at a in the discharge of their parliamentary
time when the Lok Sabha has been dissolved responsibilities.
or the dissolution of the Lok Sabha takes
place within the period allowed for its The Constitution has also extended the
approval, then the proclamation can remain parliamentary privileges to those persons who
effective even if it is approved by the Rajya are entitled to speak and take part in the
Sabha alone (Articles 352, 356 and 360). proceedings of a House of Parliament or any of
its committees.
An analysis of the above points makes it clear
that the position of the Rajya Sabha in our These include the attorney general of India and
constitutional system is not as weak as that of Union ministers.
the House of Lords in the British constitutional The parliamentary privileges do not extend to
system nor as strong as that of the Senate in the the president who is also an integral part of the
American constitutional system. Parliament.
Except in financial matters and control over the Classification
council of ministers, the powers and status of Parliamentary privileges can be classified into
the Rajya Sabha in all other spheres are broadly two broad categories:
equal and coordinate with that of the Lok Sabha.
• those that are enjoyed by each House of
Even though the Rajya Sabha has been given less Parliament collectively, and
powers as compared with the Lok Sabha, its • those that are enjoyed by the members
utility is supported on the following grounds: individually.
• It checks hasty, defective, careless and ill- Collective Privileges
considered legislation made by the Lok The privileges belonging to each House of
Sabha by making provision of revision and Parliament collectively are:
thought.
• It facilitates giving representation to • It has the right to publish its reports, debates
eminent professionals and experts who and proceedings and also the right to
cannot face the direct election. The prohibit others from publishing the same.
President nominates 12 such persons to the • The 44th Amendment Act of 1978 restored
Rajya Sabha. the freedom of the press to publish true
• It maintains the federal equilibrium by reports of parliamentary proceedings
protecting the interests of the states against without prior permission of the House. But
the undue interference of the Centre. this is not applicable in the case of a secret
sitting of the House.
• It can exclude strangers from its proceedings
and hold secret sittings to discuss some
important matters.
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immunities, either of the member individually

• It can make rules to regulate its own or of the House in its collective capacity, the
procedure and the conduct of its business offence is termed as breach of privilege and is
and to adjudicate upon such matters. punishable by the House.
• It can punish members as well as outsiders
Any act or omission which obstructs a House of
for breach of its privileges or its contempt by
Parliament, its member or its officer in the
reprimand, admonition or imprisonment
performance of their functions or which has a
(also suspension or expulsion, in case of
tendency, directly or indirectly to produce
members).
results against the dignity, authority and honour
• It has the right to receive immediate
of the House is treated as a contempt of the
information of the arrest, detention, House.
conviction, imprisonment and release of a
member. Though the two phrases, ‘breach of privilege’
• It can institute inquiries and order the and ‘contempt of the House’ are used
attendance of witnesses and send for interchangeably, they have different
relevant papers and records. implications.
• The courts are prohibited to inquire into the ‘Normally, a breach of privilege may amount to
proceedings of a House or its committees. contempt of the House. Likewise, contempt of
• No person (either a member or outsider) can the House may include a breach of privilege also.
be arrested, and no legal process (civil or
criminal) can be served within the precincts Contempt of the House, however, has wider
of the House without the permission of the implications. There may be a contempt of the
presiding officer. House without specifically committing a breach
of privilege’.
Individual Privileges
The privileges belonging to the members Similarly, ‘actions which are not breaches of any
individually are: specific privilege but are offences against the
dignity and authority of the House amount to
• They cannot be arrested during the session contempt of the House’. For example,
of Parliament and 40 days before the disobedience to a legitimate order of the House
beginning and 40 days after the end of a is not a breach of privilege, but can be punished
session. This privilege is available only in as contempt of the House.
civil cases and not in criminal cases or
preventive detention cases. Sources of Privileges
• They have freedom of speech in Parliament. Originally, the Constitution (Article 105)
No member is liable to any proceedings in expressedly mentioned two privileges, that is,
any court for anything said or any vote given freedom of speech in Parliament and right of
by him in Parliament or its committees. This publication of its proceedings.
freedom is subject to the provisions of the With regard to other privileges, it provided that
Constitution and to the rules and standing they were to be the same as those of the British
orders regulating the procedure of House of Commons, its committees and its
Parliament. members on the date of its commencement (i.e.,
• They are exempted from jury service. They 26 January, 1950), until defined by Parliament.
can refuse to give evidence and appear as a
witness in a case pending in a court when The 44th Amendment Act of 1978 provided that
Parliament is in session. the other privileges of each House of Parliament,
its committees and its members are to be those
Breach of Privilege and Contempt of the which they had on the date of its
House commencement (i.e., 20 June, 1979), until
When any individual or authority disregards or defined by Parliament. This means that the
attacks any of the privileges, rights and position with regard to other privileges remains
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same. In other words, the amendment has made similar sense as there are ‘legal’ restrictions on
only verbal changes by dropping a direct its authority and jurisdiction.
reference to the British House of Commons,
The factors that limit the sovereignty of Indian
without making any change in the implication of
Parliament are:
the provision.
Written Nature of the Constitution
The Parliament, till now, has not made any
The Constitution is the fundamental law of the
special law to exhaustively codify all the
land in our country.
privileges.
It has defined the authority and jurisdiction of
They are based on five sources, namely,
all the three organs of the Union government
• Constitutional provisions, and the nature of interrelationship between
• Various laws made by Parliament, them. Hence, the Parliament has to operate
• Rules of both the Houses, within the limits prescribed by the Constitution.
• Parliamentary conventions, and There is also a legal distinction between the
• Judicial interpretations. legislative authority and the constituent
Sovereignty of Parliament authority of the Parliament.
The doctrine of ‘sovereignty of Parliament’ is Moreover, to effect certain amendments to the
associated with the British Parliament. Constitution, the ratification of half of the states
Sovereignty means the supreme power within is also required.
the State.
In Britain, on the other hand, the Constitution is
That supreme power in Great Britain lies with neither written nor there is anything like a
the Parliament. There are no ‘legal’ restrictions fundamental law of the land.
on its authority and jurisdiction.
Federal System of Government
Therefore, the sovereignty of Parliament India has a federal system of government with a
(parliamentary supremacy) is a cardinal feature constitutional division of powers between the
of the British constitutional system. Union and the states. Both have to operate
According to AV Dicey, the British jurist, this within the spheres allotted to them. Hence, the
principle has three implications: law-making authority of the Parliament gets
confined to the subjects enumerated in the
• The Parliament can make, amend, substitute Union List and Concurrent List and does not
or repeal any law. De Lolme, a British extend to the subjects enumerated in the State
political analyst, said, ‘The British List (except in five abnormal circumstances and
Parliament can do everything except make a that too for a short period).
woman a man and a man a woman’.
Britain, on the other hand, has a unitary system
• The Parliament can make constitutional
of government and hence, all the powers are
laws by the same procedure as ordinary
vested in the Centre.
laws. In other words, there is no legal
distinction between the constituent System of Judicial Review
authority and the legislative authority of the The adoption of an independent Judiciary with
British Parliament. the power of judicial review also restricts the
• The Parliamentary laws cannot be declared supremacy of our Parliament.
invalid by the Judiciary as being
Both the Supreme Court and high courts can
unconstitutional. In other words, there is no
declare the laws enacted by the Parliament as
system of judicial review in Britain.
void and ultra vires (unconstitutional), if they
The Indian Parliament, on the other hand, contravene any provision of the Constitution.
cannot be regarded as a sovereign body in the

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On the other hand, there is no system of judicial charter guaranteeing rights, there is maximum
review in Britain. The British Courts have to liberty in Britain due to the existence of the Rule
apply the Parliamentary laws to specific cases, of Law.
without examining their constitutionality,
Therefore, even though the nomenclature and
legality or reasonableness.
organisational pattern of our Parliament is
Fundamental Rights similar to that of the British Parliament, there is
The authority of the Parliament is also restricted a substantial difference between the two.
by the incorporation of a code of justiciable
The Indian Parliament is not a sovereign body in
fundamental rights under Part III of the
the sense in which the British Parliament is a
Constitution.
sovereign body. Unlike the British Parliament,
Article 13 prohibits the State from making a law the authority and jurisdiction of the Indian
that either takes away totally or abrogates in Parliament are defined, limited and restrained.
part a fundamental right. Hence, a
In this regard, the Indian Parliament is similar to
Parliamentary law that contravenes the
the American Legislature (known as Congress).
fundamental rights shall be void.
In USA also, the sovereignty of Congress is
In Britain, on the other hand, there is no legally restricted by the written character of the
codification of justiciable fundamental rights in Constitution, the federal system of government,
the Constitution. The British Parliament has also the system of judicial review and the Bill of
not made any law that lays down the Rights.
fundamental rights of the citizens.
However, it does not mean that the British
citizens do not have rights. Though there is no
********

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Chapter 28 – Parliamentary Committees

The Parliament is too unwieldy a body to basis, while the latter are temporary and cease
deliberate effectively the issues that come up to exist on completion of the task assigned to
before it. The functions of the Parliament are them.
varied, complex and voluminous. Moreover, it
Standing Committees
has neither the adequate time nor necessary
On the basis of the nature of functions
expertise to make a detailed scrutiny of all
performed by them, standing committees can be
legislative measures and other matters.
classified into the following six categories:
Therefore, it is assisted by a number of
• Financial Committees
committees in the discharge of its duties.
o Public Accounts Committee
The Constitution of India makes a mention of o Estimates Committee
these committees at different places, but o Committee on Public Undertakings
without making any specific provisions
regarding their composition, tenure, functions, • Departmental Standing Committees (24)
etc.
• Committees to Inquire
All these matters are dealt by the rules of two
o Committee on Petitions
Houses. Accordingly, a parliamentary
committee means a committee that: o Committee of Privileges
o Ethics Committee
• Is appointed or elected by the House or
nominated by the Speaker/Chairman • Committees to Scrutinise and Control
• Works under the direction of the o Committee on Government Assurances
Speaker/Chairman o Committee on Subordinate Legislation
• Presents its report to the House or to the o Committee on Papers Laid on the Table
Speaker/Chairman o Committee on Welfare of SCs and STs
• Has a secretariat provided by the Lok o Committee on Empowerment of Women
Sabha/Rajya Sabha o Joint Committee on Offices of Profit

The consultative committees, which also consist

• Committees Relating to the Day-to-Day
of members of Parliament, are not parliamentary
Business of the House
committees as they do not fulfil above four
o Business Advisory Committee
conditions.
o Committee on Private Members’ Bills
A Minister is not eligible for election or and Resolutions
nomination to the Financial Committees, o Rules Committee
Departmental Standing Committees, and o Committee on Absence of Members from
Committees on Empowerment of Women, Sittings of the House
Government Assurances, Petitions, Subordinate
Legislation and Welfare of Scheduled Castes and • House-Keeping Committees or Service
Scheduled Tribes. Committees (i.e., Committees concerned
with the Provision of Facilities and
Classification Services to Members):
Broadly, parliamentary committees are of two • General Purposes Committee
kinds–Standing Committees and Ad Hoc • House Committee
Committees.
• Library Committee
The former are permanent (constituted every • Joint Committee on Salaries and Allowances
year or periodically) and work on a continuous of Members

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Ad Hoc Committees These committees are distinguishable from the

Ad hoc committees can be divided into two other ad hoc committees in as much as they are
categories, that is, Inquiry Committees and concerned with bills and the procedure to be
Advisory Committees. followed by them is laid down in the Rules of
Procedure and the Directions by the Speaker /
• Inquiry Committees are constituted from
Chairman.
time to time, either by the two Houses on a
motion adopted in that behalf, or by the When a Bill comes up before a House for general
Speaker / Chairman, to inquire into and discussion, it is open to that House to refer it to
report on specific subjects. For example: a Select Committee of the House or a Joint
o Committee on the Conduct of Certain Committee of the two Houses.
Members during President’s Address
A motion to this effect has to be moved and
o Committee on Draft Five-Year Plan
adopted in the House in which the Bill comes up
o Railway Convention Committee
for consideration. In case the motion adopted is
o Committee on Members of Parliament
for reference of the Bill to a Joint Committee, the
Local Area Development Scheme
decision is conveyed to the other House,
(MPLADS)
requesting the members to nominate members
o Joint Committee on Bofors Contract
of the other House to serve on the Committee.
o Joint Committee on Fertilizer Pricing
o Joint Committee to Enquire into The Select or Joint Committee considers the Bill
Irregularities in Securities and Banking clause by clause just as the two Houses do.
Transactions Amendments to various clauses can be moved
o Joint Committee on Stock Market Scam by members of the Committee.
o Joint Committee on Security in
The Committee can also take evidence of
Parliament Complex
associations, public bodies or experts who are
o Committee on Provision of Computers to
interested in the Bill.
Members of Parliament, Offices of
Political Parties and Officers of the Lok After the Bill has thus been considered, the
Sabha Secretariat Committee submits its report to the House.
o Committee on Food Management in Members who do not agree with the majority
Parliament House Complex report may append their minutes of dissent to
o Committee on Installation of Portraits / the report.
Statues of National Leaders and
Public Accounts Committee
Parliamentarians in Parliament House
This committee was set up first in 1921 under
Complex
the provisions of the Government of India Act of
o Joint Committee on Maintenance of
1919 and has since been in existence.
Heritage Character and Development of
Parliament House Complex At present, it consists of 20 members (15 from
o Committee on Violation of Protocol the Lok Sabha and 5 from the Rajya Sabha).
Norms and Contemptuous Behaviour of
Government Officers with Members of The members are elected by the Parliament
Lok Sabha every year from amongst its members according
o Joint Committee to Examine Matters to the principle of proportional representation
Relating to Allocation and Pricing of by means of the single transferable vote. Thus,
Telecom Licences and Spectrum all parties get due representation in it.
The term of office of the members is one year.
• Advisory Committees include select or joint
committees on bills, which are appointed to A minister cannot be elected as a member of the
consider and report on particular bills. committee.

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The chairman of the committee is appointed The function of the committee is to examine the
from amongst its members by the Speaker. Until estimates included in the budget and suggest
1966-67, the chairman of the committee ‘economies’ in public expenditure.
belonged to the ruling party. However, since
Hence, it has been described as a ‘continuous
1967 a convention has developed whereby the
economy committee’.
chairman of the committee is selected
invariably from the Opposition. Committee on Public Undertakings
This committee was created in 1964 on the
The function of the committee is to examine the
recommendation of the Krishna Menon
annual audit reports of the Comptroller and
Committee. Originally, it had 15 members (10
Auditor General of India (CAG), which are laid
from the Lok Sabha and 5 from the Rajya Sabha).
before the Parliament by the President.
However, in 1974, its membership was raised to
The CAG submits three audit reports to the
22 (15 from the Lok Sabha and 7 from the Rajya
President, namely, audit report on
Sabha).
appropriation accounts, audit report on finance
accounts and audit report on public The members of this committee are elected by
undertakings. the Parliament every year from amongst its own
members according to the principle of
The committee examines public expenditure
proportional representation by means of a
not only from legal and formal point of view to
single transferable vote. Thus, all parties get due
discover technical irregularities but also from
representation in it.
the point of view of economy, prudence, wisdom
and propriety to bring out the cases of waste, The term of office of the members is one year.
loss, corruption, extravagance, inefficiency and
A minister cannot be elected as a member of the
nugatory expenses.
committee. The chairman of the committee is
Estimates Committee appointed by the Speaker from amongst its
The first Estimates Committee in the post- members who are drawn from the Lok Sabha
independence era was constituted in 1950 on only.
the recommendation of John Mathai, the then
Thus, the members of the committee who are
finance minister.
from the Rajya Sabha cannot be appointed as the
Originally, it had 25 members but in 1956 its chairman.
membership was raised to 30. All the thirty
members are from Lok Sabha only. The Rajya Departmental Standing Committees
Sabha has no representation in this committee. On the recommendation of the Rules Committee
of the Lok Sabha, 17 Departmentally-Related
These members are elected by the Lok Sabha Standing Committees (DRSCs) were set up in the
every year from amongst its own members, Parliament in 1993.
according to the principles of proportional
representation by means of a single transferable In 2004, seven more such committees were
vote. Thus, all parties get due representation in setup, thus increasing their number from 17 to
it. 24.

The term of office is one year. The main objective of the standing committees
is to secure more accountability of the Executive
A minister cannot be elected as a member of the (i.e., the Council of Ministers) to the Parliament,
committee. particularly financial accountability.
The chairman of the committee is appointed by They also assist the Parliament in debating the
the Speaker from amongst its members and he budget more effectively.
is invariably from the ruling party.

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The 24 standing committees cover under their

jurisdiction all the ministries/departments of
the Central Government.
Each standing committee consists of 31
members (21 from Lok Sabha and 10 from Rajya
Sabha). The members of the Lok Sabha are
nominated by the Speaker from amongst its own
members, just as the members of the Rajya
Sabha are nominated by the Chairman from
amongst its members.
A minister is not eligible to be nominated as a
member of any of the standing committees. In
case a member, after his nomination to any of
the standing committees, is appointed a
minister, he then ceases to be a member of the
committee.
The term of office of each standing committee is
one year from the date of its constitution.
Out of the 24 standing committees, 8 work
under the Rajya Sabha and 16 under the Lok
Sabha.
The 24 standing committees and the
ministries/departments placed under their
jurisdiction are shown below.
Departmental Standing Committees and
their Jurisdiction (2019)

Source: M Laxmikanth

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Committees To Inquire House by ministers to see whether they comply

Committee on Petitions with provisions of the Constitution, or the
This committee examines petitions on bills and related Act or Rule. It does not examine
on matters of general public importance. It also statutory notifications and orders that fall under
entertains representations from individuals and the jurisdiction of the Committee on
associations on matters pertaining to Union Subordinate Legislation.
subjects. The Lok Sabha committee consists of Committee on Welfare of SCs and STs
15 members, while the Rajya Sabha committee This committee consists of 30 members (20
consists of 10 members. from Lok Sabha and 10 from Rajya Sabha). Its
Committee of Privileges functions are: (i) to consider the reports of the
The functions of this committee are semi- National Commission for the SCs and the
judicial in nature. It examines the cases of National Commission for the STs; (ii) to examine
breach of privileges of the House and its all matters relating to the welfare of SCs and STs,
members and recommends appropriate action. like implementation of constitutional and
The Lok Sabha committee has 15 members, statutory safeguards, working of welfare
while the Rajya Sabha committee has 10 programmes, etc.
members. Committee on Empowerment of Women
Ethics Committee This committee was constituted in 1997 and
This committee was constituted in Rajya Sabha consists of 30 members (20 from Lok Sabha and
in 1997 and in Lok Sabha in 2000. It enforces the 10 from Rajya Sabha). It considers the reports of
code of conduct of members of Parliament. It the National Commission for Women and
examines the cases of misconduct and examines the measures taken by the Union
recommends appropriate action. Thus, it is Government to secure status, dignity and
engaged in maintaining discipline and decorum equality for women in all fields.
in Parliament. Joint Committee on Offices of Profit
This committee examines the composition and
Committees to Scrutinise and Control
character of committees and other bodies
Committee on Government Assurances
appointed by the Central, state and union
This committee examines the assurances,
territory governments and recommends
promises and undertakings given by ministers
whether persons holding these offices should be
from time to time on the floor of the House and
disqualified from being elected as members of
reports on the extent to which they have been
Parliament or not. It consists of 15 members (10
carried through. In the Lok Sabha, it consists of from Lok Sabha and 5 from Rajya Sabha).
15 members and in the Rajya Sabha, it consists
of 10 members. It was constituted in 1953. Committees relating to the Day-To-
Committee on Subordinate Legislation Day Business of the House
This committee examines and reports to the Business Advisory Committee
House whether the powers to make regulations, This committee regulates the programme and
rules, sub-rules and bye-laws delegated by the time table of the House. It allocates time for the
Parliament or conferred by the Constitution to transaction of legislative and other business
the Executive are being properly exercised by it. brought before the House by the government.
In both the Houses, the committee consists of 15 The Lok Sabha committee consists of 15
members. It was constituted in 1953.
members including the Speaker as its chairman.
Committee on Papers Laid on the Table In the Rajya Sabha, it has 11 members including
This committee was constituted in 1975. The the Chairman as its ex-officio chairman.
Lok Sabha Committee has 15 members, while
the Rajya Sabha Committee has 10 members. It
examines all papers laid on the table of the
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Committee on Private Members’ Bills and House Committee

Resolutions This committee deals with residential
This committee classifies bills and allocates time accommodation of members and other
for the discussion on bills and resolutions amenities like food, medical aid, etc., accorded
introduced by private members (other than to them in their houses and hostels in Delhi.
ministers). This is a special committee of the Lok Both the Houses have their respective House
Sabha and consists of 15 members including the Committees. In the Lok Sabha, it consists of 12
Deputy Speaker as its chairman. The Rajya members.
Sabha does not have any such committee. The
Library Committee
same function in the Rajya Sabha is performed
This committee considers all matters relating to
by the Business Advisory Committee of that
library of the Parliament and assists the
House.
members in utilising the library’s services. It
Rules Committee consists of nine members (six from Lok Sabha
This committee considers the matters of and three from Rajya Sabha).
procedure and conduct of business in the House
Joint Committee on Salaries and Allowances
and recommends necessary amendments or
of Members
additions to the rules of the House. The Lok
This committee was constituted under the
Sabha committee consists of 15 members
Salary, Allowances and Pension of Members of
including the Speaker as its ex-officio chairman.
Parliament Act, 1954. It consists of 15 members
In the Rajya Sabha, it consists of 16 members
(10 from Lok Sabha and 5 from Rajya Sabha). It
including the Chairman as its ex-officio
frames rules for regulating payment of salary,
chairman.
allowances and pension to members of
Committee on Absence of Members Parliament.
This committee considers all applications from
members for leave Consultative Committees
Consultative committees are attached to various
of absence from the sittings of the House, and ministries/departments of the Central
examines the cases of members who have been Government. They consist of members of both
absent for a period of 60 days or more without the Houses of Parliament.
permission. It is a special committee of the Lok
Sabha and consists of 15 members. There is no The Minister/Minister of State in charge of the
such committee in the Rajya Sabha and all such Ministry concerned acts as the chairman of the
matters are dealt by the House itself. consultative committee of that ministry.
These committees provide a forum for informal
House-Keeping Committees
discussions between the ministers and the
General Purposes Committee
members of Parliament on policies and
This committee considers and advises on programmes of the government and the manner
matters concerning affairs of the House, which of their implementation.
do not fall within the jurisdiction of any other
parliamentary committee. In each House, this These committees are constituted by the
committee consists of the presiding officer Ministry of Parliamentary Affairs. The
(Speaker / Chairman) as its ex-officio chairman, guidelines regarding the composition, functions
Deputy Speaker (Deputy Chairman in the case of and procedures of these committees are
Rajya Sabha), members of panel of chairpersons formulated by this Ministry.
(panel of vice-chairpersons in the case of Rajya
The Ministry also makes arrangements for
Sabha), chairpersons of all the departmental
holding their meetings both during the session
standing committees of the House, leaders of
and the inter-session period of Parliament.
recognised parties and groups in the House and
such other members as nominated by the The membership of these committees is
presiding officer. voluntary and is left to the choice of the
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members and the leaders of their parties. The In addition, separate Informal Consultative
maximum membership of a committee is 30 and Committees of the members of Parliament are
the minimum is 10. also constituted for all the Railway Zones.
Members of Parliament belonging to the area
These committees are normally constituted
falling under a particular Railway Zone are
after the new Lok Sabha is constituted, after
nominated on the Informal Consultative
General Elections for the Lok Sabha. In other
Committee of that Railway Zone.
words, these committees shall stand dissolved
upon dissolution of every Lok Sabha and shall be Unlike the Consultative Committees attached to
reconstituted upon constitution of each Lok various ministries/departments, the meetings
Sabha. of the Informal Consultative Committees are to
be arranged during the session periods only.

********

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Chapter 29 – State Legislature

The state legislature occupies a preeminent and The Constitution provides for the abolition or
central position in the political system of a state. creation of legislative councils in states.
Accordingly, the Parliament can abolish a
legislative council (where it already exists) or
Articles 168 to 212 in Part VI of the Constitution
create it (where it does not exist), if the
deal with the organisation, composition,
legislative assembly of the concerned state
duration, officers, procedures, privileges,
passes a resolution to that effect.
powers and so on of the state legislature.
Though these are similar to that of Parliament, Such a specific resolution must be passed by the
there are some differences as well. state assembly by a special majority, that is, a
majority of the total membership of the
Organisation Of State Legislature assembly and a majority of not less than two-
There is no uniformity in the organisation of thirds of the members of the assembly present
state legislatures. Most of the states have a and voting.
unicameral system, while others have a
bicameral system. This Act of Parliament is not to be deemed as an
amendment of the Constitution for the purposes
At present (2019), only six states have two of Article 368 and is passed like an ordinary
Houses (bicameral). These are Andhra Pradesh, piece of legislation (ie, by simple majority).
Telangana, Uttar Pradesh, Bihar, Maharashtra
and Karnataka. The idea of having a second chamber in the
states was criticised in the Constituent
The Jammu and Kashmir Legislative Council Assembly on the ground that it was not
was abolished by the Jammu and Kashmir representative of the people, that it delayed
Reorganisation Act, 2019. legislative process and that it was an expensive
The Tamil Nadu Legislative Council Act, 2010 institution.
has not come into force. The Legislative Council Consequently, the provision was made for the
in Andhra Pradesh was revived by the Andhra abolition or creation of a legislative council to
Pradesh Legislative Council Act, 2005. The 7th enable a state to have a second chamber or not
Amendment Act of 1956 provided for a according to its own willingness and financial
Legislative Council in Madhya Pradesh. strength. For example, Andhra Pradesh got the
However, a notification to this effect has to be legislative council created in 1957 and got the
made by the President. So far, no such same abolished in 1985. The Legislative Council
notification has been made. Hence, Madhya in Andhra Pradesh was again revived in 2007,
Pradesh continues to have one House only. after the enactment of the Andhra Pradesh
The twenty-two states have unicameral system. Legislative Council Act, 2005. The legislative
Here, the state legislature consists of the council of Tamil Nadu had been abolished in
governor and the legislative assembly. 1986 and that of Punjab and West Bengal in
1969.
In the states having bicameral system, the state
legislature consists of the governor, the In 2010, the Legislative Assembly of Tamil Nadu
legislative council and the legislative assembly. passed a resolution for the revival of the
Legislative Council in the state. Accordingly, the
The legislative council (Vidhan Parishad) is the Parliament enacted the Tamil Nadu Legislative
upper house (second chamber or house of Council Act, 2010 which provided for the
elders), while the legislative assembly (Vidhan creation of Legislative Council in the state.
Sabha) is the lower house (first chamber or However, before this Act was enforced, the
popular house). Legislative Assembly of Tamil Nadu passed
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another resolution in 2011 seeking the abolition of each state and (b) the division of each state
of the proposed Legislative Council. into territorial constituencies.

Composition of Two Houses The Parliament is empowered to determine the

Composition of Assembly authority and the manner in which it is to be
Strength made.

The legislative assembly consists of Accordingly, Parliament has enacted the

representatives directly elected by the people Delimitation Commission Acts in 1952, 1962,
on the basis of universal adult franchise. 1972 and 2002 for this purpose.

Its maximum strength is fixed at 500 and The 42nd Amendment Act of 1976 had frozen
minimum strength at 60. It means that its total number of seats in the assembly of each
strength varies from 60 to 500 depending on the state and the division of such state into
population size of the state. territorial constituencies till the year 2000 at
the 1971 level. This ban on readjustment has
However, in case of Arunachal Pradesh, Sikkim been extended for another years (i.e., upto year
and Goa, the minimum number is fixed at 30 and 2026) by the 84th Amendment Act of 2001 with
in case of Mizoram and Nagaland, it is 40 and 46 the same objective of encouraging population
respectively. Further, some members of the limiting measures.
legislative assemblies in Sikkim and Nagaland
are also elected indirectly. The 84th Amendment Act of 2001 also
empowered the government to undertake
Nominated Member readjustment and rationalisation of territorial
The governor can nominate one member from constituencies in a state on the basis of the
the Anglo-Indian community, if the community population figures of 1991 census. Later, the
is not adequately represented in the assembly. 87th Amendment Act of 2003 provided for the
delimitation of constituencies on the basis of
Originally, this provision was to operate for ten 2001 census and not 1991 census. However, this
years (ie, upto 1960). But this duration has been can be done without altering the total number of
extended continuously since then by 10 years seats in the assembly of each state.
each time. Now, under the 95th Amendment Act
of 2009, this is to last until 2020. Reservation of seats for SCs and STs

Territorial Constituencies The Constitution provided for the reservation of

seats for scheduled castes and scheduled tribes
For the purpose of holding direct elections to in the assembly of each state on the basis of
the assembly, each state is divided into population ratios.
territorial constituencies. The demarcation of
these constituencies is done in such a manner Originally, this reservation was to operate for
that the ratio between the population of each ten years (i.e., up to 1960). But this duration has
constituency and the number of seats allotted to been extended continuously since then by 10
it is the same throughout the state. years each time. Now, under the 95th
Amendment Act of 2009, this reservation is to
In other words, the Constitution ensures that last until 2020.
there is uniformity of representation between
different constituencies in the state. The Composition of Council
expression ‘population’ means, the population Strength
as ascertained at the last preceding census of Unlike the members of the legislative assembly,
which the relevant figures have been published. the members of the legislative council are
Readjustment after each census indirectly elected. The maximum strength of the
council is fixed at one-third of the total strength
After each census, a readjustment is to be made
in the (a) total number of seats in the assembly
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of the assembly and the minimum strength is Duration of Two Houses

fixed at 40. Duration of Assembly
It means that the size of the council depends on Like the Lok Sabha, the legislative assembly is
the size of the assembly of the concerned state. not a continuing chamber. Its normal term is five
years from the date of its first meeting after the
This is done to ensure the predominance of the general elections.
directly elected House (assembly) in the
legislative affairs of the state. The expiration of the period of five years
operates as automatic dissolution of the
Though the Constitution has fixed the maximum assembly. However, the governor is authorised
and the minimum limits, the actual strength of a to dissolve the assembly at any time (i.e., even
Council is fixed by Parliament. before the completion of five years) to pave the
Manner of Election way for fresh elections.

Of the total number of members of a legislative Further, the term of the assembly can be
council: extended during the period of national
emergency by a law of Parliament for one year
• 1/3 are elected by the members of local at a time (for any length of time). However, this
bodies in the state like municipalities, extension cannot continue beyond a period of
district boards, etc., six months after the emergency has ceased to
• 1/12 are elected by graduates of three years operate. This means that the assembly should be
standing and residing within the state, re-elected within six months after the
• 1/12 are elected by teachers of three years revocation of emergency.
standing in the state, not lower in standard
Duration of Council
than secondary school,
Like the Rajya Sabha, the legislative council is a
• 1/3 are elected by the members of the
continuing chamber, that is, it is a permanent
legislative assembly of the state from
body and is not subject to dissolution. But, one-
amongst persons who are not members of
third of its members retire on the expiration of
the assembly, and
every second year. So, a member continues as
• the remainder are nominated by the
such for six years.
governor from amongst persons who have a
special knowledge or practical experience of The vacant seats are filled up by fresh elections
literature, science, art, cooperative and nominations (by governor) at the beginning
movement and social service. of every third year. The retiring members are
also eligible for re-election and re-nomination
Thus, 5/6 of the total number of members of a
any number of times.
legislative council are indirectly elected and 1/6
are nominated by the governor. The members Membership Of State Legislature
are elected in accordance with the system of Qualifications
proportional representation by means of a The Constitution lays down the following
single transferable vote. qualifications for a person to be chosen a
The bonafide or propriety of the governor’s member of the state legislature.
nomination in any case cannot be challenged in • He must be a citizen of India.
the courts.
• He must make and subscribe to an oath or
This scheme of composition of a legislative affirmation before the person authorised by
council as laid down in the Constitution is the Election Commission for this purpose.
tentative and not final. The Parliament is In his oath or affirmation, he swears
authorised to modify or replace the same. o To bear true faith and allegiance to the
However, it has not enacted any such law so far. Constitution of India

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o To uphold the sovereignty and integrity similar to those for Parliament. These are
of India mentioned here:
• He must be not less than 30 years of age in
• He must not have been found guilty of
the case of the legislative council and not less
certain election offences or corrupt practices
than 25 years of age in the case of the
in the elections.
legislative assembly.
• He must not have been convicted for any
• He must posses other qualifications
offence resulting in imprisonment for two or
prescribed by Parliament.
more years. But, the detention of a person
Accordingly, the Parliament has laid down the under a preventive detention law is not a
following additional qualifications in the disqualification.
Representation of People Act (1951): • He must not have failed to lodge an account
of his election expenses within the time.
• A person to be elected to the legislative
• He must not have any interest in
council must be an elector for an assembly
government contracts, works or services.
constituency in the concerned state and to
• He must not be a director or managing agent
be qualified for the governor’s nomination,
nor hold an office of profit in a corporation
he must be a resident in the concerned state.
in which the government has at least 25 per
• A person to be elected to the legislative
cent share.
assembly must be an elector for an assembly
• He must not have been dismissed from
constituency in the concerned state.
government service for corruption or
• He must be a member of a scheduled caste or
disloyalty to the state.
scheduled tribe if he wants to contest a seat
• He must not have been convicted for
reserved for them. However, a member of
promoting enmity between different groups
scheduled castes or scheduled tribes can
or for the offence of bribery.
also contest a seat not reserved for them.
• He must not have been punished for
Disqualifications preaching and practicing social crimes such
Under the Constitution, a person shall be as untouchability, dowry and sati.
disqualified for being chosen as and for being a
On the question whether a member has become
member of the legislative assembly or
subject to any of the above disqualifications, the
legislative council of a state:
governor’s decision is final. However, he should
• if he holds any office of profit under the obtain the opinion of the Election Commission
Union or state government (except that of a and act accordingly.
minister or any other office exempted by
Disqualification on Ground of Defection
state legislature),
The Constitution also lays down that a person
• if he is of unsound mind and stands so
shall be disqualified for being a member of
declared by a court,
either House of state legislature if he is so
• if he is an undischarged insolvent,
disqualified on the ground of defection under
• if he is not a citizen of India or has
the provisions of the Tenth Schedule.
voluntarily acquired the citizenship of a
foreign state or is under any The question of disqualification under the Tenth
acknowledgement of allegiance to a foreign Schedule is decided by the Chairman, in the case
state, and of legislative council and, Speaker, in the case of
• if he is so disqualified under any law made legislative assembly (and not by the governor).
by Parliament.
In 1992, the Supreme Court ruled that the
Accordingly, the Parliament has prescribed a decision of Chairman/Speaker in this regard is
number of additional disqualifications in the subject to judicial review.
Representation of People Act (1951). These are

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Oath or Affirmation However, the Chairman/Speaker need not accept

Every member of either House of state the resignation if he is satisfied that it is not
legislature, before taking his seat in the House, voluntary or genuine.
has to make and subscribe an oath or
Absence: A House of the state legislature can
affirmation before the governor or some person
declare the seat of a member vacant if he
appointed by him for this purpose.
absents himself from all its meeting for a period
In this oath, a member of the state legislature of sixty days without its permission.
swears:
Other Cases: A member has to vacate his seat in
• to bear true faith and allegiance to the the either House of state legislature,
Constitution of India;
• if his election is declared void by the court,
• to uphold the sovereignty and integrity of
• if he is expelled by the House,
India; and
• if he is elected to the office of president or
• to faithfully discharge the duty of his office.
office of vice-president and
Unless a member takes the oath, he cannot vote • if he is appointed to the office of governor of
and participate in the proceedings of the House a state.
and does not become eligible to the privileges
and immunities of the state legislature. Presiding Officers of State Legislature
Each House of state legislature has its own
A person is liable to a penalty of ₹500 for each presiding officer.
day he sits or votes as a member in a House:
There is a Speaker and a Deputy Speaker for the
• before taking and subscribing the legislative assembly and a Chairman and a
prescribed oath or affirmation; or Deputy Chairman for the legislative council.
• when he knows that he is not qualified or
that he is disqualified for its membership; or A panel of chairman for the assembly and a
• when he knows that he is prohibited from panel of vice-chairman for the council is also
appointed.
sitting or voting in the House by virtue of any
law made by Parliament or the state Speaker of Assembly
legislature. The Speaker is elected by the assembly itself
from amongst its members.
Vacation of Seats
In the following cases, a member of the state Usually, the Speaker remains in office during the
legislature vacates his seat: life of the assembly. However, he vacates his
office earlier in any of the following three cases:
Double Membership: A person cannot be a
member of both Houses of state legislature at • if he ceases to be a member of the assembly;
one and the same time. If a person is elected to • if he resigns by writing to the deputy
both the Houses, his seat in one of the Houses speaker; and
falls vacant as per the provisions of a law made • if he is removed by a resolution passed by a
by the state legislature. majority of all the then members of the
Disqualification: If a member of the state assembly. Such a resolution can be moved
legislature becomes subject to any of the only after giving 14 days advance notice.
disqualifications, his seat becomes vacant. The Speaker has the following powers and
Resignation: A member may resign his seat by duties:
writing to the Chairman of legislative council or • He maintains order and decorum in the
Speaker of legislative assembly, as the case may assembly for conducting its business and
be. The seat falls vacant when the resignation is regulating its proceedings. This is his
accepted. primary responsibility and he has final
power in this regard.
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• He is the final interpreter of the provisions The Speaker nominates from amongst the
of members a panel of chairman. Any one of them
o the Constitution of India, can preside over the assembly in the absence of
o the rules of procedure and conduct of the Speaker or the Deputy Speaker. He has the
business of assembly, and same powers as the speaker when so presiding.
o the legislative precedents, within the He holds office until a new panel of chairman is
assembly. nominated.
• He adjourns the assembly or suspends the
Chairman of Council
meeting in the absence of a quorum.
The Chairman is elected by the council itself
• He does not vote in the first instance. But he from amongst its members.
can exercise a casting vote in the case of a tie.
• He can allow a ‘secret’ sitting of the House at The Chairman vacates his office in any of the
the request of the leader of the House. following three cases:
• He decides whether a bill is a Money Bill or
• if he ceases to be a member of the council;
not and his decision on this question is final.
• if he resigns by writing to the deputy
• He decides the questions of disqualification
chairman; and
of a member of the assembly, arising on the
• if he is removed by a resolution passed by a
ground of defection under the provisions of
majority of all the then members of the
the Tenth Schedule.
council. Such a resolution can be moved only
• He appoints the chairman of all the
after giving 14 days advance notice.
committees of the assembly and supervises
their functioning. He himself is the chairman As a presiding officer, the powers and functions
of the Business Advisory Committee, the of the Chairman in the council are similar to
Rules Committee and the General Purpose those of the Speaker in the assembly.
Committee.
However, the Speaker has one special power
Deputy Speaker of Assembly which is not enjoyed by the Chairman. The
Like the Speaker, the Deputy Speaker is also Speaker decides whether a bill is a Money Bill or
elected by the assembly itself from amongst its not and his decision on this question is final.
members.
The salaries and allowances of the Speaker and
He is elected after the election of the Speaker the Deputy Speaker of the assembly and the
has taken place. Chairman and the Deputy Chairman of the
council are fixed by the state legislature.
Like the Speaker, the Deputy Speaker remains in
office usually during the life of the assembly. They are charged on the Consolidated Fund of
However, he also vacates his office earlier in any the State and thus are not subject to the annual
of the following three cases: vote of the state legislature.

• if he ceases to be a member of the assembly; Deputy Chairman of Council

• if he resigns by writing to the speaker; and Like the Chairman, the Deputy Chairman is also
• if he is removed by a resolution passed by a elected by the council itself from amongst its
majority of all the then members of the members.
assembly. Such a resolution can be moved The deputy chairman vacates his office in any of
only after giving 14 days’ advance notice. the following three cases:
The Deputy Speaker performs the duties of the • if he ceases to be a member of the council;
Speaker’s office when it is vacant. He also acts as
• if he resigns by writing to the Chairman; and
the Speaker when the latter is absent from the
• if he is removed by a resolution passed by a
sitting of assembly. In both the cases, he has all
majority of all the then members of the
the powers of the Speaker.
council. Such a resolution can be moved only
after giving 14 days advance notice.
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The Deputy Chairman performs the duties of the Dissolution

Chairman’s office when it is vacant. He also acts The legislative council, being a permanent
as the Chairman when the latter is absent from house, is not subject to dissolution. Only the
the sitting of the council. In both the cases, he legislative assembly is subject to dissolution.
has all the powers of the Chairman.
Unlike a prorogation, a dissolution ends the very
The Chairman nominates from amongst the life of the existing House, and a new House is
members a panel of vice-chairman. constituted after the general elections are held.
Any one of them can preside over the council in The position with respect to lapsing of bills on
the absence of the Chairman or the Deputy the dissolution of the assembly is mentioned
Chairman. He has the same powers as the below:
chairman when so presiding. He holds office
Bills that lapses Bills that do not
until a new panel of vice-chairman is nominated.
lapses
Sessions of State Legislature A Bill pending in the A Bill pending in the
assembly (whether council but not passed
Summoning
originating in the by the assembly.
The governor from time to time summons each assembly or
House of state legislature to meet at such time transmitted to it by
and place as he thinks fit. the council).
The maximum gap between the two sessions of A Bill passed by the A Bill passed by the
assembly but assembly (in a
state legislature cannot be more than six
pending in the unicameral state) or
months, ie, the state legislature should meet at
council. passed by both the
least twice a year. A session of the state houses (in a bicameral
legislature consists of many sittings. state) but pending
Adjournment assent of the governor
An adjournment suspends the work in a sitting or the President.
A Bill passed by the
for a specified time which may be hours, days or
assembly (in a
weeks.
unicameral state) or
Adjournment sine die means terminating a passed by both the
sitting of the state legislature for an indefinite Houses (in a bicameral
period. The power of the adjournment as well as state) but returned by
adjournment sine die lies with the presiding the president for
reconsideration of
officer of the House.
House(s).
Prorogation
The presiding officer (Speaker or Chairman)
Quorum
declares the House adjourned sine die, when the
Quorum is the minimum number of members
business of the session is completed.
required to be present in the House before it can
Within the next few days, the governor issues a transact any business. It is ten members or one-
notification for prorogation of the session. tenth of the total number of members of the
House (including the presiding officer),
However, the governor can also prorogue the
whichever is greater. If there is no quorum
House which is in session. Unlike an during a meeting of the House, it is the duty of
adjournment, a prorogation terminates a
the presiding officer either to adjourn the House
session of the House.
or to suspend the meeting until there is a
A Bill pending in the Legislature of a State shall quorum.
not lapse by reason of the prorogation of the
House or Houses.

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Voting in House Legislative Procedure in State

All matters at any sitting of either House are Legislature
decided by a majority of votes of the members
Ordinary Bills
present and voting excluding the presiding
Bill in the Originating House
officer. Only a few matters which are specifically
mentioned in the Constitution like removal of An ordinary bill can originate in either House of
the speaker of the assembly, removal of the the state legislature (in case of a bicameral
Chairman of the council and so on require legislature). Such a bill can be introduced either
special majority, not ordinary majority. The by a minister or by any other member.
presiding officer (i.e., Speaker in the case of
The bill passes through three stages in the
assembly or chairman in the case of council or
originating House, viz,
the person acting as such) does not vote in the
first instance, but exercises a casting vote in the 1. First reading,
case of an equality of votes.
2. Second reading, and
Language in State Legislature
3. Third reading.
The Constitution has declared the official
language(s) of the state or Hindi or English, to After the bill is passed by the originating House,
be the languages for transacting business in the it is transmitted to the second House for
state legislature. However, the presiding officer consideration and passage.
can permit a member to address the House in
his mother-tongue. The state legislature is A bill is deemed to have been passed by the state
authorised to decide whether to continue or legislature only when both the Houses have
discontinue English as a floor language after the agreed to it, either with or without
completion of fifteen years from the amendments.
commencement of the Constitution (i.e., from In case of a unicameral legislature, a bill passed
1965). by the legislative assembly is sent directly to the
In case of Himachal Pradesh, Manipur, governor for his assent.
Meghalaya and Tripura, this time limit is Bill in the Second House
twenty-five years and that of Arunachal
Pradesh, Goa and Mizoram, it is forty years. In the second House also, the bill passes through
all the three stages, that is, first reading, second
Rights of Ministers and Advocate General reading and third reading.
In addition to the members of a House, every
minister and the advocate general of the state When a bill is passed by the legislative assembly
have the right to speak and take part in the and transmitted to the legislative council, the
proceedings of either House or any of its latter has four alternatives before it:
committees of which he is named a member, • it may pass the bill as sent by the assembly
without being entitled to vote. (i.e., without amendments);
There are two reasons underlying this • it may pass the bill with amendments and
constitutional provision: return it to the assembly for
reconsideration;
• A minister can participate in the proceedings • it may reject the bill altogether; and
of a House, of which he is not a member. • it may not take any action and thus keep the
• A minister, who is not a member of either bill pending.
House, can participate in the proceedings of
both the Houses. If the council passes the bill without
amendments or the assembly accepts the
amendments suggested by the council, the bill is
deemed to have been passed by both the Houses

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and the same is sent to the governor for his • he may reserve the bill for the consideration
assent. of the President.
On the other hand, if the assembly rejects the If the governor gives his assent to the bill, the
amendments suggested by the council or the bill becomes an Act and is placed on the Statute
council rejects the bill altogether or the council Book. If the governor withholds his assent to the
does not take any action for three months, then bill, the bill ends and does not become an Act. If
the assembly may pass the bill again and the governor returns the bill for reconsideration
transmit the same to the council. and if the bill is passed by the House or both the
Houses again, with or without amendments, and
If the council rejects the bill again or passes the
presented to the governor for his assent, the
bill with amendments not acceptable to the
governor must give his assent to the bill.
assembly or does not pass the bill within one
month, then the bill is deemed to have been Thus, the governor enjoys only a suspensive
passed by both the Houses in the form in which veto. The position is same at the Central level
it was passed by the assembly for the second also.
time.
Assent of the President
Therefore, the ultimate power of passing an
When a bill is reserved by the governor for the
ordinary bill is vested in the assembly. At the
consideration of the President, the President
most, the council can detain or delay the bill for
may either give his assent to the bill or withhold
a period of four months–three months in the
his assent to the bill or return the bill for
first instance and one month in the second
reconsideration of the House or Houses of the
instance.
state legislature.
The Constitution does not provide for the
When a bill is so returned, the House or Houses
mechanism of joint sitting of both the Houses to
have to reconsider it within a period of six
resolve the disagreement between the two
months. The bill is presented again to the
Houses over a bill.
presidential assent after it is passed by the
On the other hand, there is a provision for joint House or Houses with or without amendments.
sitting of the Lok Sabha and the Rajya Sabha to It is not mentioned in the Constitution whether
resolve a disagreement between the two over an it is obligatory on the part of the president to
ordinary bill. Moreover, when a bill, which has give his assent to such a bill or not.
originated in the council and was sent to the
Money Bills
assembly, is rejected by the assembly, the bill
The Constitution lays down a special procedure
ends and becomes dead.
for the passing of Money Bills in the state
Thus, the council has been given much lesser legislature. This is as follows:
significance, position and authority than that of
A Money Bill cannot be introduced in the
the Rajya Sabha at the Centre.
legislative council. It can be introduced in the
Assent of the Governor legislative assembly only and that too on the
recommendation of the governor. Every such
Every bill, after it is passed by the assembly or
bill is considered to be a government bill and
by both the Houses in case of a bicameral
can be introduced only by a minister.
legislature, is presented to the governor for his
assent. There are four alternatives before the After a Money Bill is passed by the legislative
governor: assembly, it is transmitted to the legislative
council for its consideration. The legislative
• he may give his assent to the bill;
council has restricted powers with regard to a
• he may withhold his assent to the bill;
Money Bill.
• he may return the bill for reconsideration of
the House or Houses; and
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It cannot reject or amend a Money Bill. It can It can be introduced It can be introduced
only make recommendations and must return either by a minister or either by a minister
the bill to the legislative assembly within 14 by a private member. or by private
days. The legislative assembly can either accept member.
or reject all or any of the recommendations of It passes through first It passes through
the legislative council. reading, second first reading, second
reading and third reading and third
If the legislative assembly accepts any reading in the reading in the
recommendation, the bill is then deemed to originating House. originating House.
have been passed by both the Houses in the It is deemed to have It is deemed to have
modified form. If the legislative assembly does been passed by the been passed by the
not accept any recommendation, the bill is then Parliament only when state legislature only
deemed to have been passed by both the Houses both the Houses have when both the
in the form originally passed by the legislative agreed to it, either Houses have agreed
with or without to it, either with or
assembly without any change.
amendments. without
If the legislative council does not return the bill amendments.
to the legislative assembly within 14 days, the A deadlock between A deadlock between
bill is deemed to have been passed by both the two Houses takes the two Houses takes
Houses at the expiry of the said period in the place when the place when the
second House, after legislative council,
form originally passed by the legislative
receiving a bill passed after receiving a bill
assembly. Thus, the legislative assembly has
by the first House, passed by the
more powers than legislative council with rejects the bill or legislative assembly,
regard to a money bill. proposes rejects the bill or
At the most, the legislative council can detain or amendments that are proposes
delay a money bill for a period of 14 days. not acceptable to the amendments that are
first House or does not acceptable to the
Finally, when a Money Bill is presented to the not pass the bill legislative assembly
governor, he may either give his assent, within six months. or does not pass the
withhold his assent or reserve the bill for bill within three
presidential assent but cannot return the bill for months.
reconsideration of the state legislature. The Constitution The Constitution
provides for the does not provide for
Normally, the governor gives his assent to a mechanism of joint the mechanism of
money bill as it is introduced in the state sitting of two Houses joint sitting of two
legislature with his prior permission. of the Parliament to Houses of the state
resolve a deadlock legislature to resolve
When a money bill is reserved for consideration between them over a deadlock between
of the President, the president may either give the passage of a bill. them over the
his assent to the bill or withhold his assent to the passage of a bill.
bill but cannot return the bill for The Lok Sabha cannot The legislative
reconsideration of the state legislature. override the Rajya assembly can
Sabha by passing the override the
bill for the second legislative council by
Comparing Legislative Procedure in the time and vice versa. A passing the bill for
joint sitting is the only the second time and
Parliament and State Legislature
way to resolve a not vice versa. When
Parliament State legislature deadlock between the a bill is passed by the
With Regard to Ordinary Bills two Houses. assembly for the
It can be introduced It can be introduced second time and
in either in either transmitted to the
House of the House of the state legislative council, if
Parliament. legislature. the legislative council
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rejects the bill again, The Lok Sabha can The legislative
or proposes either accept or reject assembly can either
amendments that are all or any of the accept or reject all or
not acceptable to the recommendations of any of the
legislative assembly, the Rajya Sabha. recommendations of
or does not pass the the legislative
bill within one council.
month, then the bill is If the Lok Sabha If the legislative
deemed to have been accepts any assembly accepts any
passed by both the recommendation, the recommendation, the
Houses in the form in bill is then deemed to bill is then deemed to
which it was passed have been passed by have been passed by
by the legislative both the Houses in the both the Houses in
assembly for the modified form. the modified form.
second time. If the Lok Sabha does If the legislative
The mechanism of The mechanism of not accept any assembly does not
joint sitting for passing the bill for recommendation, the accept any
resolving a deadlock the second time to bill is then deemed to recommendation, the
applies to a bill resolve a deadlock have been passed by bill is then deemed to
whether originating applies to a bill both the Houses in the have been passed by
in the Lok Sabha or originating in the form originally both the Houses in
the Rajya Sabha. If a legislative assembly passed by the Lok the form originally
joint sitting is not only. Sabha without any passed by the
summoned by the When a bill, which change. legislative assembly
president, the bill has originated in the without any change.
ends and becomes legislative council If the Rajya Sabha If the legislative
dead. and sent to the does not return the council does not
legislative assembly, bill to the Lok Sabha return the bill to the
is rejected by the within 14 days, the legislative assembly
latter, the bill ends bill is deemed to have within 14 days, the
and becomes dead. been passed by both bill is deemed to have
With Regard to Money Bills the Houses at the been passed by both
It can be introduced It can be introduced expiration of the said the Houses at the
only in the Lok Sabha only in the legislative period in the form expiration of the said
and not in the Rajya assembly and not in originally passed by period in the form
Sabha. the legislative the Lok Sabha. originally passed by
council. the legislative
It can be introduced It can be introduced assembly.
only on the only on the The Constitution does The Constitution
recommendation of recommendation of not provide for the does not provide for
the president. the governor. resolution of any the resolution of any
It can be introduced It can be introduced deadlock between the deadlock between
only by a minister and only by a minister two Houses. This is the two Houses. This
not by a private and not by a private because, the will of is because, the will of
member. member. the Lok Sabha is made the legislative
It cannot be rejected It cannot be rejected to prevail over that of assembly is made to
or amended by the or amended by the the Rajya Sabha, if the prevail over that of
Rajya Sabha. It should legislative council. It latter does not agree legislative council, if
be returned to the should be returned to to the bill passed by the latter does not
Lok Sabha within 14 the legislative the former. agree to the bill
days, either with or assembly within 14 passed by the former.
without days, either with or
recommendations. without
amendments.
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Position of Legislative Council • The final power to decide whether a

The constitutional position of the council (as particular bill is a money bill or not is vested
compared with the assembly) can be studied in the Speaker of the assembly.
from two angles: • The final power of passing an ordinary bill
also lies with the assembly. At the most, the
• Spheres where council is equal to council can detain or delay the bill for the
assembly. period of four months–three months in the
• Spheres where council is unequal to first instance and one month in the second
assembly. instance. In other words, the council is not
Equal with Assembly even a revising body like the Rajya Sabha; it
In the following matters, the powers and status is only a dilatory chamber or an advisory
of the council are broadly equal to that of the body.
assembly: • The council can only discuss the budget but
cannot vote on the demands for grants
• Introduction and passage of ordinary bills. (which is the exclusive privilege of the
However, in case of disagreement between assembly).
the two Houses, the will of the assembly • The council cannot remove the council of
prevails over that of the council. ministers by passing a no-confidence
• Approval of ordinances issued by the motion. This is because, the council of
governor. ministers is collectively responsible only to
• Selection of ministers including the chief the assembly. But, the council can discus and
minister. Under the Constitution the, criticise the policies and activities of the
ministers including the chief minister can be Government.
members of either House of the state • When an ordinary bill, which has originated
legislature. However, irrespective of their in the council and was sent to the assembly,
membership, they are responsible only to is rejected by the assembly, the bill ends and
the assembly. becomes dead.
• Consideration of the reports of the • The council does not participate in the
constitutional bodies like State Finance election of the president of India and
Commission, state public service representatives of the state in the Rajya
commission and Comptroller and Auditor Sabha.
General of India. • The council has no effective say in the
• Enlargement of the jurisdiction of the state ratification of a constitutional amendment
public service commission. bill. In this respect also, the will of the
Unequal with Assembly assembly prevails over that of the council.
In the following matters, the powers and status • Finally, the very existence of the council
of the council are unequal to that of the depends on the will of the assembly. The
assembly: council can be abolished by the Parliament
on the recommendation of the assembly.
• A Money Bill can be introduced only in the
assembly and not in the council. From the above, it is clear that the position of
• The council cannot amend or reject a money the council vis-à-vis the assembly is much
bill. It should return the bill to the assembly weaker than the position of the Rajya Sabha vis-
within 14 days, either with a-vis the Lok Sabha. The Rajya Sabha has equal
recommendations or without powers with the Lok Sabha in all spheres except
recommendations. financial matters and with regard to the control
• The assembly can either accept or reject all over the Government. On the other hand, the
or any of the recommendation of the council. council is subordinate to the assembly in all
In both the cases, the money bill is deemed respects. Thus, the predominance of the
to have been passed by the two Houses. assembly over the council is fully established.
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Even though both the council and the Rajya occupy the post of a chief minister or a minister
Sabha are second chambers, the Constitution or a member of the state legislature.
has given the council much lesser
Even though the council has been given less
importance than the Rajya Sabha due to the powers as compared with the assembly, its
following reasons: utility is supported on the following grounds:
• The Rajya Sabha consists of the • It checks the hasty, defective, careless and
representatives of the states and thus reflect ill-considered legislation made by the
the federal element of the polity. It maintains assembly by making provision for revision
the federal equilibrium by protecting the and thought.
interests of the states against the undue • It facilitates representation of eminent
interference of the Centre. Therefore, it has professionals and experts who cannot face
to be an effective revising body and not just direct elections. The governor nominates
an advisory body or dilatory body like that one-sixth members of the council to provide
of the council. On the other hand, the issue of representation to such people.
federal significance does not arise in the case
of a council. Privileges of State Legislature
• The council is heterogeneously constituted. Privileges of a state legislature are a sum of
It represents different interests and consists special rights, immunities and exemptions
of differently elected members and also enjoyed by the Houses of state legislature, their
include some nominated members. Its very committees and their members.
composition makes its position weak and They are necessary in order to secure the
reduces its utility as an effective revising independence and effectiveness of their actions.
body. On the other hand, the Rajya Sabha is Without these privileges, the Houses can neither
homogeneously constituted. It represents maintain their authority, dignity and honour nor
only the states and consists of mainly elected can protect their members from any obstruction
members (only 12 out of 250 are in the discharge of their legislative
nominated). responsibilities.
• The position accorded to the council is in
accordance with the principles of The Constitution has also extended the
democracy. The council should yield to the privileges of the state legislature to those
assembly, which is a popular house. This persons who are entitled to speak and take part
pattern of relationship between the two in the proceedings of a House of the state
Houses of the state legislature is adopted legislature or any of its committees. These
from the British model. In Britain, the House include advocate-general of the state and state
of Lords (Upper House) cannot oppose and ministers.
obstruct the House of Commons (Lower It must be clarified here that the privileges of the
House). The House of Lords is only a dilatory state legislature do not extend to the governor
chamber–it can delay an ordinary bill for a who is also an integral part of the state
maximum period of one year and a money legislature.
bill for one month.
The privileges of a state legislature can be
Keeping in view its weak, powerless and classified into two broad categories–those that
insignificant position and role, the critics have are enjoyed by each House of the state
described the council as a ‘secondary chamber’, legislature collectively, and those that are
‘costly ornamental luxury’, ‘white elephant’, etc. enjoyed by the members individually.
The critics have opined that the council has
served as a refuge for those who are defeated in Collective Privileges
the assembly elections. It enabled the The privileges belonging to each House of the
unpopular, rejected and ambitious politicians to state legislature collectively are:

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• It has the right to publish its reports, debates criminal) can be served within the precincts
and proceedings and also the right to of the House without the permission of the
prohibit others from publishing the same. presiding officer.
• It can exclude strangers from its proceedings
Individual Privileges
and hold secret sittings to discuss some
The privileges belonging to the members
important matters.
individually are:
• It can make rules to regulate its own
procedure and the conduct of its business • They cannot be arrested during the session
and to adjudicate upon such matters. of the state legislature and 40 days before
• It can punish members as well as outsiders the beginning and 40 days after the end of
for breach of its privileges or its contempt by such session. This privilege is available only
reprimand, admonition or imprisonment in civil cases and not in criminal cases or
(also suspension or expulsion, in case of preventive detention cases.
members). • They have freedom of speech in the state
• It has the right to receive immediate legislature. No member is liable to any
information of the arrest, detention, proceedings in any court for anything said or
conviction, imprisonment and release of a any vote given by him in the state legislature
member. or its committees. This freedom is subject to
• It can institute inquiries and order the the provisions of the Constitution and to the
attendance of witnesses and send for rules and standing orders regulating the
relevant papers and records. procedure of the state legislature.
• The courts are prohibited to inquire into the • They are exempted from jury service. They
proceedings of a House or its Committees. can refuse to give evidence and appear as a
• No person (either a member or outsider) can witness in a case pending in a court when the
be arrested, and no legal process (civil or state legislature is in session.

********

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Chapter 30 – Judiciary (NCERT)

Why do we need an Independent Judiciary? of the person or his/ her political loyalty
should not be the criteria for appointments
• In any society, disputes are bound to arise to judiciary.
between individuals, between groups and • The judges have a fixed tenure. They hold
between individuals or groups and office till reaching the age of retirement.
government. They have security of tenure. Security of
• All such disputes must be settled by an tenure ensures that judges could function
independent body in accordance with the without fear or favour.
principle of rule of law. • The Constitution prescribes a very difficult
• This idea of rule of law implies that all procedure for removal of judges, that would
individuals — rich and poor, men or women, provide security of office to the members of
forward or backward castes — are subjected judiciary.
to the same law • The judiciary is not financially dependent on
• The principal role of the judiciary is to either the executive or legislature. The
protect rule of law and ensure supremacy of Constitution provides that the salaries and
law. It safeguards rights of the individual, allowances of the judges are not subjected to
settles disputes in accordance with the law the approval of the legislature.
and ensures that democracy does not give • The actions and decisions of the judges are
way to individual or group dictatorship. immune from personal criticisms.
Independence of Judiciary • . The judiciary has the power to penalise
The Independence of judiciary means: those who are found guilty of contempt of
court. This authority of the court is seen as
• The other organs of the government like the an effective protection to the judges from
executive and legislature must not restrain unfair criticism.
the functioning of the judiciary in such a way • Parliament cannot discuss the conduct of the
that it is unable to do justice. judges except when the proceeding to
• The other organs of the government should remove a judge is being carried out. This
not interfere with the decision of the gives the judiciary independence to
judiciary. adjudicate without fear of being criticised
• Judges must be able to perform their
functions without fear or favour. Appointment of Judges
• The senior-most judge of the Supreme Court
Judiciary is a part of the democratic political was appointed as the Chief Justice of India.
structure of the country. It is therefore However this is mot mentioned in the
accountable to the Constitution, to the constitution, it is a convention had
democratic traditions and to the people of the developed.
country. • The other Judges of the Supreme Court and
How can the independence of judiciary be the High Court are appointed by the
provided and protected? President after ‘consulting’ the CJI, it has
suggested that the Chief Justice should
The Indian Constitution has ensured the recommend names of persons to be
independence of the judiciary through a number appointed in consultation with four senior-
of measures most judges of the Court.
• Thus, the Supreme Court has established the
• The legislature is not involved in the process
principle of collegiality in making
of appointment of judges. Thus, it was
recommendations for appointments.
believed that party politics would not play a
role in the process of appointments. • The decision of the group of senior judges of
the Supreme Court carries greater weight.
• In order to be appointed as a judge, a person
Thus, in matters of appointment to the
must have experience as a lawyer and/or
judiciary, the Supreme Court and the Council
must be well versed in law. Political opinions
of Ministers play an important role.
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Removal of Judges • However, it functions within the limitations

A judge of the Supreme Court or High Court can imposed by the Constitution
be removed only on the ground of proven • The functions and responsibilities of the
misbehaviour or incapacity. Supreme Court are defined by the
Constitution. The Supreme Court has
A motion containing the charges against the
specific jurisdiction or scope of powers.
judge must be approved by special majority in
both Houses of the Parliament
removal of a judge is a very difficult procedure
and unless there is a general consensus among
Members of the Parliament, a judge cannot be
removed.
It should also be noted that while in making
appointments, the executive plays a crucial role;
the legislature has the powers of removal. This
has ensured both balance of power and
independence of the judiciary.

Structure of the Judiciary

The Constitution of India provides for a single
integrated judicial system.
This means that unlike some other federal
countries of the world, India does not have
separate State courts
The structure of the judiciary in India is
pyramidal with the Supreme Court at the top,
High Courts below them and district and Original Jurisdiction
subordinate courts at the lowest level • Original jurisdiction means cases that can be
The lower courts function under the direct directly considered by the Supreme Court
superintendence of the higher courts. without going to the lower courts before
that.
• The Original Jurisdiction of the Supreme
Court establishes it as an umpire in all
disputes regarding federal matters
• In any federal country, legal disputes are
bound to arise between the Union and the
States; and among the States themselves
• The power to resolve such cases is entrusted
to the Supreme Court of India. It is called
original jurisdiction because the Supreme
Court alone has the power to deal with such
cases.
• Neither the High Courts nor the lower courts
can deal with such cases. In this capacity, the
Supreme Court not just settles disputes but
also interprets the powers of Union and
State government as laid down in the
Constitution.
Jurisdiction of Supreme Court
• The Supreme Court of India is one of the very
powerful courts anywhere in the world.

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Writ Jurisdiction The chief instrument through which judicial

activism has flourished in India is Public
• Any individual, whose fundamental right has
Interest Litigation (PIL) or Social Action
been violated, can directly move the
Supreme Court for remedy. Litigation (SAL).
• The Supreme Court can give special orders Public Interest Litigation (PIL)
in the form of writs • In 1979, the Court set the trend when it
• The High Courts can also issue writs, but the decided to hear a case where the case was
persons whose rights are violated have the
filed not by the aggrieved persons but by
choice of either approaching the High Court
others on their behalf
or approaching the Supreme Court directly.
• Through such writs, the Court can give • It means litigation filed in a court of law, for
orders to the executive to act or not to act in the protection of “Public Interest”, such as
a particular way Pollution, Terrorism, Road safety,
Constructional hazards etc. Any matter
Appellate Jurisdiction where the interest of public at large is
• Appellate jurisdiction means that the affected can be redressed by filing a Public
Supreme Court will reconsider the case and Interest Litigation in a court of law.
the legal issues involved in it. • PIL has become the most important vehicle
• The Supreme Court is the highest court of of judicial activism
appeal. A person can appeal to the Supreme • Through the PIL, the court has expanded the
Court against the decisions of the High Court. idea of rights. Clean air, unpolluted water,
However, High Court must certify that the decent living etc. are rights for the entire
case is fit for appeal.
society.
• In addition, in criminal cases, if the lower
• Therefore, it was felt by the courts that
court has sentenced a person to death then
an appeal can be made to the High Court or individuals as parts of the society must have
Supreme Court. the right to seek justice wherever such rights
• Of course, the Supreme Court holds the were violated.
powers to decide whether to admit appeals
Judiciary and Rights
even when appeal is not allowed by the High
Court. • The Constitution provides two ways in
• The High Courts too, have appellate which the Supreme Court can remedy the
jurisdiction over the decisions given by violation of rights:
courts below them. o First it can restore fundamental rights by
issuing writs of Habeas Corpus;
Advisory Jurisdiction mandamus etc. (article 32). The High
Courts also have the power to issue such
• The Supreme Court of India possesses writs (article 226).
advisory jurisdiction also, it means that the o Secondly, the Supreme Court can declare
President of India can refer any matter that the concerned law as unconstitutional
is of public importance or that which and therefore non-operational (article
involves interpretation of Constitution to 13).
Supreme Court for advice. • Together these two provisions of the
• However, the Supreme Court is not bound to Constitution establish the Supreme Court as
give advice on such matters and the the protector of fundamental rights of the
President is not bound to accept such an citizen on the one hand and interpreter of
advice Constitution on the other.
• Perhaps the most important power of the
Judicial Activism Supreme Court is the power of judicial
In 1979, the Court set the trend when it decided review
to hear a case where the case was filed not by • Judicial Review means the power of the
the aggrieved persons but by others on their Supreme Court (or High Courts) to examine
behalf. the constitutionality of any law if the Court
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arrives at the conclusion that the law is laws and amending the Constitution, the
inconsistent with the provisions of the executive is supreme in implementing them
Constitution, such a law is declared as while the judiciary is supreme in settling
unconstitutional and inapplicable. disputes and deciding whether the laws that
• The term judicial review is nowhere have been made are in accordance with the
mentioned in the Constitution. provisions of the Constitution.
• The Supreme Court includes power to • Despite such clear cut division of power the
review legislations on the ground that they conflict between the Parliament and
violate fundamental rights or on the ground judiciary, and executive and the judiciary
that they violate the federal distribution of has remained a recurrent theme in Indian
powers. The review power extends to the politics
laws passed by State legislatures also.
• Together, the writ powers and the review Conclusion
power of the Court make judiciary very In this chapter, we have studied the role of the
powerful. judiciary in our democratic structure. In spite of
the tensions that arose from time to time
Judiciary and Parliament between the judiciary and the executive and the
• Apart from taking a very active stand on the legislature, the prestige of the judiciary has
matter of rights, the court has been active in increased considerably. At the same time, there
seeking to prevent subversion of the are many more expectations from the judiciary.
Constitution through political practice. Ordinary citizens also wonder how it is possible
• There are many other instances in which the for many people to get easy acquittals and how
Supreme Court actively involved itself in the witnesses change their testimonies to suit the
administration of justice by giving directions wealthy and the mighty. These are some issues
to executive agencies. about which our judiciary is concerned too. You
• Thus, it gave directions to CBI to initiate have seen in this chapter that judiciary in India
investigations against politicians and is a very powerful institution. This power has
bureaucrats in the hawala case, the generated much awe and many hopes from it.
Narasimha Rao case, illegal allotment of Judiciary in India is also known for its
petrol pumps case etc. independence. Through various decisions, the
• The Indian Constitution is based on a judiciary has given new interpretations to the
delicate principle of limited separation of Constitution and protected the rights of citizens.
powers and checks and balances. As we saw in this chapter, democracy hinges on
• This means that each organ of the the delicate balance of power between the
government has a clear area of functioning. judiciary and the Parliament and both
Thus, the Parliament is supreme in making institutions have to function within the
limitations set by the Constitution.

********

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Chapter 31 – Supreme Court

Unlike the American Constitution, the Indian Originally, the strength of the Supreme Court
Constitution has established an integrated was fixed at eight (one chief justice and seven
judicial system with the Supreme Court at the other judges).
top and the high courts below it.
The Parliament has increased this number of
Under a high court (and below the state level), other judges progressively to ten in 1956, to
there is a hierarchy of subordinate courts, that thirteen in 1960, to seventeen in 1977, to
is, district courts and other lower courts. twenty-five in 1986, to thirty in 2008 and to
thirty-three in 2019.
This single system of courts, adopted from the
Government of India Act of 1935, enforces both Appointment of Judges
Central laws as well as the state laws.
The judges of the Supreme Court are appointed
In USA, on the other hand, the federal laws are by the president.
enforced by the federal judiciary and the state
The chief justice is appointed by the president
laws are enforced by the state judiciary. There is
after consultation with such judges of the
thus a double system of courts in USA–one for
Supreme Court and high courts as he deems
the centre and the other for the states.
necessary.
To sum up, India, although a federal country like
The other judges are appointed by president
the USA, has a unified judiciary and one system
after consultation with the chief justice and such
of fundamental law and justice.
other judges of the Supreme Court and the high
The Supreme Court of India was inaugurated on courts as he deems necessary.
January 28, 1950. It succeeded the Federal Court
The consultation with the chief justice is
of India, established under the Government of
obligatory in the case of appointment of a judge
India Act of 1935. However, the jurisdiction of
other than Chief justice.
the Supreme Court is greater than that of its
predecessor. This is because, the Supreme Court Controversy over Consultation
has replaced the British Privy Council as the
The Supreme Court has given different
highest court of appeal.
interpretation of the word ‘consultation’ in the
Articles 124 to 147 in Part V of the Constitution above provision. In the First Judges case (1982),
deal with the organisation, independence, the Court held that consultation does not mean
jurisdiction, powers, procedures and so on of concurrence and it only implies exchange of
the Supreme Court. views.
The Parliament is also authorised to regulate But, in the Second Judges case (1993), the Court
them. reversed its earlier ruling and changed the
meaning of the word consultation to
Composition and Appointment concurrence. Hence, it ruled that the advice
At present, the Supreme Court consists of thirty- tendered by the Chief Justice of India is binding
four judges (one chief justice and thirty-three on the President in the matters of appointment
other judges). of the judges of the Supreme Court. But, the
In 2019, the centre notified an increase in the Chief Justice would tender his advice on the
number of Supreme Court judges from thirty- matter after consulting two of his seniormost
one to thirty-four, including the Chief Justice of colleagues.
India. This followed the enactment of the Similarly, in the Third Judges case (1998), the
Supreme Court (Number of Judges) Amendment Court opined that the consultation process to be
Act, 2019. adopted by the Chief justice of India requires
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‘consultation of plurality judges’. The sole the senior-most judge of the Supreme Court
opinion of the chief justice of India does not should alone be appointed to the office of the
constitute the consultation process. He should chief justice of India.
consult a collegium of four seniormost judges of
the Supreme Court and even if two judges give Qualifications, Oath and Salaries
an adverse opinion, he should not send the Qualifications of Judges
recommendation to the government. A person to be appointed as a judge of the
Supreme Court should have the following
The court held that the recommendation made qualifications:
by the chief justice of India without complying
with the norms and requirements of the • He should be a citizen of India.
consultation process are not binding on the • He should have been a judge of a High Court
government. (or high courts in succession) for five years;
or
The 99th Constitutional Amendment Act of 2014
• He should have been an advocate of a High
and the National Judicial Appointments
Court (or High Courts in succession) for ten
Commission Act of 2014 have replaced the
years; or
collegium system of appointing judges to the
• He should be a distinguished jurist in the
Supreme Court and High Courts with a new
opinion of the president.
body called the National Judicial Appointments
Commission (NJAC). From the above, it is clear that the Constitution
has not prescribed a minimum age for
However, in 2015, the Supreme Court has
appointment as a judge of the Supreme Court.
declared both the 99th Constitutional
Amendment as well as the NJAC Act as Oath or Affirmation
unconstitutional and void.
A person appointed as a judge of the Supreme
Consequently, the earlier collegium system Court, before entering upon his Office, has to
became operative again. make and subscribe an oath or affirmation
before the President, or some person appointed
This verdict was delivered by the Supreme
by him for this purpose.
Court in the Fourth Judges case (2015).
In his oath, a judge of the Supreme Court swears:
The court opined that the new system (i.e.,
NJAC) would affect the independence of the • to bear true faith and allegiance to the
judiciary. Constitution of India;
• to uphold the sovereignty and integrity of
Appointment of Chief Justice
India;
From 1950 to 1973, the practice has been to • to duly and faithfully and to the best of his
appoint the seniormost judge of the Supreme ability, knowledge and judgement perform
Court as the chief justice of India. the duties of the Office without fear or
favour, affection or ill-will; and
This established convention was violated in
• to uphold the Constitution and the laws.
1973 when A.N. Ray was appointed as the Chief
Justice of India by superseding three senior Salaries and Allowances
judges.
The salaries, allowances, privileges, leave and
Again in 1977, M.U. Beg was appointed as the pension of the judges of the Supreme Court are
chief justice of India by superseding the then determined from time to time by the Parliament.
senior-most judge. They cannot be varied to their disadvantage
after their appointment except during a
This discretion of the government was curtailed
financial emergency.
by the Supreme Court in the Second Judges Case
(1993), in which the Supreme Court ruled that

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In 2018, the salary of the chief justice was An impeachment motion for the removal of a
increased from ₹1 lakh to ₹2.80 lakh per month judge does not lapse on the dissolution of the Lok
and that of a judge from ₹90,000 to ₹2.50 lakh Sabha.
per month.
The address must be supported by a special
majority of each House of Parliament (ie, a
In 1950, their salaries were fixed at ₹5,000
majority of the total membership of that House
per month and ₹4,000 per month
and a majority of not less than two-thirds of the
respectively.
members of that House present and voting).
In 1986, their salaries were raised to ₹10,000
The grounds of removal are two–proved
per month and ₹9,000 per month misbehaviour or incapacity.
respectively.
The Judges Enquiry Act (1968) regulates the
In 1998, their salaries were raised to ₹33,000
procedure relating to the removal of a judge of
per month and ₹30,000 per month
the Supreme Court by the process of
respectively.
impeachment:
In 2009, their salaries were raised to ₹1 lakh
• A removal motion signed by 100 members
per month and ₹90,000 per month
(in the case of Lok Sabha) or 50 members (in
respectively.
the case of Rajya Sabha) is to be given to the
Speaker/ Chairman.
• The Speaker/Chairman may admit the
They are also paid sumptuary allowance and
motion or refuse to admit it.
provided with free accommodation and other
• If it is admitted, then the Speaker/ Chairman
facilities like medical, car, telephone, etc.
is to constitute a three-member committee
The retired chief justice and judges are entitled to investigate into the charges.
to 50 per cent of their last drawn salary as • The committee should consist of (a) the chief
monthly pension. justice or a judge of the Supreme Court, (b) a
chief justice of a high court, and (c) a
Tenure and Removal
distinguished jurist.
Tenure of Judges • If the committee finds the judge to be guilty
The Constitution has not fixed the tenure of a of misbehaviour or suffering from an
judge of the Supreme Court. However, it makes incapacity, the House can take up the
the following three provisions in this regard: consideration of the motion.
• He holds office until he attains the age of 65 • After the motion is passed by each House of
years. Any question regarding his age is to be Parliament by special majority, an address is
determined by such authority and in such presented to the president for removal of the
manner as provided by Parliament. judge.
• He can resign his office by writing to the • Finally, the president passes an order
president. removing the judge.
• He can be removed from his office by the It is interesting to know that no judge of the
President on the recommendation of the Supreme Court has been impeached so far.
Parliament.
The first case of impeachment is that of Justice
Removal of Judges V. Ramaswami of the Supreme Court (1991–
A judge of the Supreme Court can be removed 1993).
from his Office by an order of the president.
Though the enquiry Committee found him guilty
The President can issue the removal order only of misbehaviour, he could not be removed as the
after an address by Parliament has been impeachment motion was defeated in the Lok
presented to him in the same session for such Sabha.
removal.
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The Congress Party abstained from voting. But, he will not otherwise be deemed to be a
judge of the Supreme Court.
Acting, Adhoc and Retired Judges
Acting Chief Justice Seat and Procedure
The President can appoint a judge of the Seat of Supreme Court
Supreme Court as an acting Chief Justice of India The Constitution declares Delhi as the seat of the
when: Supreme Court.

• the office of Chief Justice of India is vacant; But it also authorises the chief justice of India to
or appoint other place or places as seat of the
• the Chief Justice of India is temporarily Supreme Court.
absent; or
He can take decision in this regard only with the
• the Chief Justice of India is unable to perform approval of the President.
the duties of his office.
This provision is only optional and not
Ad hoc Judge
compulsory. This means that no court can give
When there is a lack of quorum of the
any direction either to the President or to the
permanent judges to hold or continue any Chief Justice to appoint any other place as a seat
session of the Supreme Court, the Chief Justice of the Supreme Court.
of India can appoint a judge of a High Court as
an ad hoc judge of the Supreme Court for a Procedure of the Court
temporary period. The Supreme Court can, with the approval of the
president, make rules for regulating generally
He can do so only after consultation with the the practice and procedure of the Court.
chief justice of the High Court concerned and
with the previous consent of the president. The Constitutional cases or references made by
the President under Article 143 are decided by
The judge so appointed should be qualified for a Bench consisting of at least five judges.
appointment as a judge of the Supreme Court.
All other cases are decided by single judges and
It is the duty of the judge so appointed to attend division benches.
the sittings of the Supreme Court, in priority to
other duties of his office. The judgements are delivered by the open court.

While so attending, he enjoys all the jurisdiction, All judgements are by majority vote but if
powers and privileges (and discharges the differing, then judges can give dissenting
duties) of a judge of the Supreme Court. judgements or opinions.

Retired Judge Independence of Supreme Court

At any time, the chief justice of India can request The Supreme Court has been assigned a very
a retired judge of the Supreme Court or a retired significant role in the Indian democratic
judge of a high court (who is duly qualified for political system. It is a federal court, the highest
appointment as a judge of the Supreme Court) court of appeal, the guarantor of the
to act as a judge of the Supreme Court for a fundamental rights of the citizens and guardian
temporary period. of the Constitution.
He can do so only with the previous consent of Therefore, its independence becomes very
the president and also of the person to be so essential for the effective discharge of the duties
appointed. assigned to it.
Such a judge is entitled to such allowances as the It should be free from the encroachments,
president may determine. pressures and interferences of the executive
(council of ministers) and the Legislature
He will also enjoy all the jurisdiction, powers
(Parliament).
and privileges of a judge of Supreme Court.
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It should be allowed to do justice without fear or when an impeachment motion is under

favour. consideration of the Parliament.
The Constitution has made the following Ban on Practice after Retirement
provisions to safeguard and ensure the The retired judges of the Supreme Court are
independent and impartial functioning of the prohibited from pleading or acting in any Court
Supreme Court: or before any authority within the territory of
India. This ensures that they do not favour
Mode of Appointment
anyone in the hope of future favour.
The judges of the Supreme Court are appointed
by the President (which means the cabinet) in Power to Punish for its Contempt
consultation with the members of the judiciary The Supreme Court can punish any person for
itself (ie, judges of the Supreme Court and the its contempt. Thus, its actions and decisions
high courts). This provision curtails the absolute cannot be criticised and opposed by any body.
discretion of the executive as well as ensures This power is vested in the Supreme Court to
that the judicial appointments are not based on maintain its authority, dignity and honour.
any political or practical considerations.
Freedom to Appoint its Staff
Security of Tenure The Chief Justice of India can appoint officers
The judges of the Supreme Court are provided and servants of the Supreme Court without any
with the Security of Tenure. They can be interference from the executive. He can also
removed from office by the President only in the prescribe their conditions of service.
manner and on the grounds mentioned in the
Its Jurisdiction cannot be Curtailed
Constitution. This means that they do not hold
The Parliament is not authorised to curtail the
their office during the pleasure of the President,
jurisdiction and powers of the Supreme Court.
though they are appointed by him. This is
The Constitution has guaranteed to the Supreme
obvious from the fact that no judge of the
Court, jurisdiction of various kinds. However,
Supreme Court has been removed (or
the Parliament can extend the same.
impeached) so far.
Separation from Executive
Fixed Service Conditions
The Constitution directs the State to take steps
The salaries, allowances, privileges, leave and
to separate the Judiciary from the Executive in
pension of the judges of the Supreme Court are
the public services. This means that the
determined from time to time by the Parliament.
executive authorities should not possess the
They cannot be changed to their disadvantage
judicial powers. Consequently, upon its
after their appointment except during a
implementation, the role of executive
financial emergency. Thus, the conditions of
authorities in judicial administration came to an
service of the judges of the Supreme Court
end.
remain same during their term of Office.
Expenses Charged on Consolidated Fund Jurisdiction and Powers of Supreme
The salaries, allowances and pensions of the Court
judges and the staff as well as all the The Constitution has conferred a very extensive
administrative expenses of the Supreme Court jurisdiction and vast powers on the Supreme
are charged on the Consolidated Fund of India. Court.
Thus, they are non-votable by the Parliament It is not only a Federal Court like the American
(though they can be discussed by it). Supreme Court but also a final court of appeal
Conduct of Judges cannot be Discussed like the British House of Lords (the Upper House
The Constitution prohibits any discussion in of the British Parliament).
Parliament or in a State Legislature with respect It is also the final interpreter and guardian of the
to the conduct of the judges of the Supreme Constitution and guarantor of the fundamental
Court in the discharge of their duties, except rights of the citizens.
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Further, it has advisory and supervisory Further, this jurisdiction of the Supreme Court
powers. does not extend to the following:
Therefore, Alladi Krishnaswamy Ayyar, a • A dispute arising out of any pre-Constitution
member of the Drafting Committee of the treaty, agreement, covenant, engagement,
Constitution, rightly remarked: “The Supreme sanad or other similar instrument.
Court of India has more powers than any other • A dispute arising out of any treaty,
Supreme Court in any part of the world.” agreement, etc., which specifically provides
that the said jurisdiction does not extent to
The jurisdiction and powers of the Supreme
such a dispute.
Court can be classified into the following:
• Inter-state water disputes
• Original Jurisdiction • Matters referred to the Finance Commission
• Writ Jurisdiction • Adjustment of certain expenses and
• Appellate Jurisdiction pensions between the Centre and the states
• Advisory Jurisdiction • Ordinary dispute of Commercial nature
• A Court of Record between the Centre and the states
• Power of Judicial Review • Recovery of damages by a state against the
• Constitutional Interpretation Centre
• Other Powers
In 1961, the first suit, under the original
Original Jurisdiction jurisdiction of the Supreme Court, was brought
As a federal court, the Supreme Court decides by West Bengal against the Centre.
the disputes between different units of the
The State Government challenged the
Indian Federation. More elaborately, any
Constitutional validity of the Coal Bearing Areas
dispute:
(Acquisition and Development) Act, 1957,
• Between the Centre and one or more states; passed by the Parliament. However, the
or Supreme Court dismissed the suit by upholding
• Between the Centre and any state or states the validity of the Act.
on one side and one or more other states on Writ Jurisdiction
the other side; or The Constitution has constituted the Supreme
• Between two or more states. Court as the guarantor and defender of the
In the above federal disputes, the Supreme fundamental rights of the citizens.
Court has exclusive original jurisdiction. The Supreme Court is empowered to issue writs
Exclusive means, no other court can decide such including habeas corpus, mandamus,
disputes and original means, the power to hear prohibition, quo warranto and certiorari for the
such disputes in the first instance, not by way of enforcement of the fundamental rights of an
appeal. aggrieved citizen.
With regard to the exclusive original In this regard, the Supreme Court has original
jurisdiction of the Supreme Court, two points jurisdiction in the sense that an aggrieved
should be noted. citizen can directly go to the Supreme Court, not
One, the dispute must involve a question necessarily by way of appeal.
(whether of law or fact) on which the existence However, the writ jurisdiction of the Supreme
or extent of a legal right depends. Thus, the Court is not exclusive. The high courts are also
questions of political nature are excluded from empowered to issue writs for the enforcement
it. of the Fundamental Rights.
Two, any suit brought before the Supreme Court It means, when the Fundamental Rights of a
by a private citizen against the Centre or a state citizen are violated, the aggrieved party has the
cannot be entertained under this.
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option of moving either the high court or the Constitutional Matters

Supreme Court directly.
In the constitutional cases, an appeal can be
Therefore, the original jurisdiction of the made to the Supreme Court against the
Supreme Court with regard to federal disputes judgement of a high court if the high court
is different from its original jurisdiction with certifies that the case involves a substantial
regard to disputes relating to fundamental question of law that requires the interpretation
rights. of the Constitution.
In the first case, it is exclusive and in the second Based on the certificate, the party in the case can
case, it is concurrent with high courts appeal to the Supreme Court on the ground that
jurisdiction. Moreover, the parties involved in the question has been wrongly decided.
the first case are units of the federation (Centre
Civil Matters
and states) while the dispute in the second case
is between a citizen and the Government In civil cases, an appeal lies to the Supreme
(Central or state). Court from any judgement of a high court if the
high court certifies–
There is also a difference between the writ
jurisdiction of the Supreme Court and that of the o that the case involves a substantial
high court. question of law of general importance;
and
The Supreme Court can issue writs only for the
o that the question needs to be decided by
enforcement of the Fundamental Rights and not
the Supreme Court.
for other purposes. The high court, on the other
hand, can issue writs not only for the Originally, only those civil cases that involved a
enforcement of the fundamental rights but also sum of ₹20,000 could be appealed before the
for other purposes. It means that the writ Supreme Court. But this monetary limit was
jurisdiction of the high court is wider than that removed by the 30th Constitutional
of the Supreme Court. Amendment Act of 1972.
But, the Parliament can confer on the Supreme Criminal Matters
Court, the power to issue writs for other
The Supreme Court hears appeals against the
purposes also.
judgement in a criminal proceeding of a high
Appellate Jurisdiction court if the high court–
As mentioned earlier, the Supreme Court has
o has on appeal reversed an order of
not only succeeded the Federal Court of India
acquittal of an accused person and
but also replaced the British Privy Council as the
sentenced him to death; or
highest court of appeal.
o has taken before itself any case from any
The Supreme Court is primarily a court of subordinate court and convicted the
appeal and hears appeals against the accused person and sentenced him to
judgements of the lower courts. death; or
o certifies that the case is a fit one for
It enjoys a wide appellate jurisdiction which can
appeal to the Supreme Court.
be classified under four heads:
In the first two cases, an appeal lies to the
• Appeals in constitutional matters.
Supreme Court as a matter of right (ie, without
• Appeals in civil matters.
any certificate of the high court). But if the high
• Appeals in criminal matters.
court has reversed the order of conviction and
• Appeals by special leave. has ordered the acquittal of the accused, there is
no right to appeal to the Supreme Court.

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In 1970, the Parliament had enlarged the possible to fetter the exercise of this power by
Criminal Appellate Jurisdiction of the Supreme any set formula or rule’.
Court. Accordingly, an appeal lies to the
Advisory Jurisdiction
Supreme Court from the judgement of a high
The Constitution (Article 143) authorises the
court if the high court:
president to seek the opinion of the Supreme
o has on appeal, reversed an order of Court in the two categories of matters:
acquittal of an accused person and
• On any question of law or fact of public
sentenced him to imprisonment for life
importance which has arisen or which is
or for ten years; or
likely to arise.
o has taken before itself any case from any
subordinate court and convicted the • On any dispute arising out of any pre-
accused person and sentenced him to constitution treaty, agreement, covenant,
imprisonment for life or for ten years. engagement, sanad or other similar
instruments.
Further, the appellate jurisdiction of the
Supreme Court extends to all civil and criminal In the first case, the Supreme Court may tender
cases in which the Federal Court of India had or may refuse to tender its opinion to the
jurisdiction to hear appeals from the high court president. But, in the second case, the Supreme
Court ‘must’ tender its opinion to the president.
but which are not covered under the civil and
criminal appellate jurisdiction of the Supreme In both the cases, the opinion expressed by the
Court mentioned above. Supreme Court is only advisory and not a
Appeal by Special Leave judicial pronouncement. Hence, it is not binding
on the president; he may follow or may not
The Supreme Court is authorised to grant in its follow the opinion.
discretion special leave to appeal from any
judgement in any matter passed by any court or However, it facilitates the government to have
tribunal in the country (except military tribunal an authoritative legal opinion on a matter to be
decided by it.
and court martial). This provision contains the
four aspects as under: So far (2019), the President has made fifteen
o It is a discretionary power and hence, references to the Supreme Court under its
cannot be claimed as a matter of right. advisory jurisdiction (also known as
o It can be granted in any judgement consultative jurisdiction). These are mentioned
below in the chronological order.
whether final or interlocutory.
It may be related to any matter– • Delhi Laws Act in 1951
constitutional, civil, criminal, income- • Kerala Education Bill in 1958
tax, labour, revenue, advocates, etc. • Berubari Union in 1960
It can be granted against any court or • Sea Customs Act in 1963
tribunal and not necessarily against a • Keshav Singh’s case relating to the privileges
high court (of course, except a military of the Legislature in 1964
court).
• Presidential Election in 1974
Thus, the scope of this provision is very wide • Special Courts Bill in 1978
and it vests the Supreme Court with a plenary • Jammu and Kashmir Resettlement Act in
jurisdiction to hear appeals. 1982
• Cauvery Water Disputes Tribunal in 1992
On the exercise of this power, the Supreme
• Rama Janma Bhumi case in 1993
Court itself held that ‘being an exceptional and
• Consultation process to be adopted by the
overriding power, it has to be exercised
chief justice of India in 1998
sparingly and with caution and only in special
extraordinary situations. Beyond that it is not

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• Legislative competence of the Centre and administrative side of the judiciary do not
States on the subject of natural gas and amount to contempt of court.
liquefied natural gas in 2001
Power of Judicial Review
• The constitutional validity of the Election
Judicial review is the power of the Supreme
Commission’s decision on deferring the
Court to examine the constitutionality of
Gujarat Assembly Elections in 2002
legislative enactments and executive orders of
• Punjab Termination of Agreements Act in both the Central and state governments.
2004
• 2G spectrum case verdict and the mandatory On examination, if they are found to be violative
auctioning of natural resources across all of the Constitution (ultra-vires), they can be
sectors in 2012 declared as illegal, unconstitutional and invalid
(null and void) by the Supreme Court.
A Court of Record
As a Court of Record, the Supreme Court has two Consequently, they cannot be enforced by the
powers: Government.

• The judgements, proceedings and acts of the Constitutional Interpretation

Supreme Court are recorded for perpetual The Supreme Court is the ultimate interpreter of
memory and testimony. These records are the Constitution.
admitted to be of evidentiary value and It can give final version to the spirit and content
cannot be questioned when produced before of the provisions of the constitution and the
any court. They are recognised as legal verbiage used in the constitution.
precedents and legal references.
• It has power to punish for contempt of court, While interpreting the constitution, the
either with simple imprisonment for a term Supreme Court is guided by a number of
up to six months or with fine up to ₹2,000 or doctrines.
with both. In 1991, the Supreme Court has In other words, the Supreme Court applies
ruled that it has power to punish for various doctrines in interpreting the
contempt not only of itself but also of high constitution.
courts, subordinate courts and tribunals
functioning in the entire country. The important doctrines are mentioned below:

Contempt of court may be civil or criminal. Civil • Doctrine of Severability

contempt means wilful disobedience to any • Doctrine of Waiver
judgement, order, writ or other process of a • Doctrine of Eclipse
court or wilful breach of an undertaking given to • Doctrine of Territorial Nexus
a court. • Doctrine of Pith and Substance
Criminal contempt means the publication of any • Doctrine of Colourable Legislation
matter or doing an act which– • Doctrine of Implied Powers
• Doctrine of Incidental and Ancillary Powers
i. scandalises or lowers the authority of a • Doctrine of Precedent
court; or • Doctrine of Occupied Field
ii. prejudices or interferes with the due course • Doctrine of Prospective Overruling
of a judicial proceeding; or • Doctrine of Harmonious Construction
iii. interferes or obstructs the administration of
• Doctrine of Liberal Interpretation
justice in any other manner.
Other Powers
However, innocent publication and distribution
Besides the above, the Supreme Court has
of some matter, fair and accurate report of
numerous other powers:
judicial proceedings, fair and reasonable
criticism of judicial acts and comment on the • It decides the disputes regarding the
election of the president and the vice-
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president. In this regard, it has the original, Supreme Court Advocates

exclusive and final authority. Three categories of Advocates are entitled to
• It enquires into the conduct and behaviour practice law before the Supreme Court. They
of the chairman and members of the Union are:
Public Service Commission on a reference
made by the president. If it finds them guilty Senior Advocates
of misbehaviour, it can recommend to the These are Advocates who are designated as
president for their removal. The advice Senior Advocates by the Supreme Court of India
tendered by the Supreme Court in this or by any High Court.
regard is binding on the President. The Court can designate any Advocate, with his
• It has power to review its own judgement or consent, as Senior Advocate if in its opinion by
order. Thus, it is not bound by its previous virtue of his ability, standing at the Bar or
decision and can depart from it in the special knowledge or experience in law the said
interest of justice or community welfare. Advocate is deserving of such distinction.
• In brief, the Supreme Court is a self-
correcting agency. For example, in the A Senior Advocate is not entitled to appear
Kesavananda Bharati case (1973), the without an Advocate-on-Record in the Supreme
Supreme Court departed from its previous Court or without a junior in any other court or
judgement in the Golak Nath case (1967). tribunal in India.
• It is authorised to withdraw the cases He is also not entitled to accept instructions to
pending before the high courts and dispose draw pleadings or affidavits, advise on evidence
them by itself. It can also transfer a case or or do any drafting work of an analogous kind in
appeal pending before one high court to any court or tribunal in India or undertake
another high court. conveyancing work of any kind whatsoever but
• Its law is binding on all courts in India. Its this prohibition shall not extend to settling any
decree or order is enforceable throughout such matter as aforesaid in consultation with a
the country. All authorities (civil and junior.
judicial) in the country should act in aid of
Advocates-on-Record
the Supreme Court.
Only these advocates are entitled to file any
• It has power of judicial superintendence and
matter or document before the Supreme Court.
control over all the courts and tribunals
They can also file an appearance or act for a
functioning in the entire territory of the
party in the Supreme Court.
country.
Other Advocates
The Supreme Court’s jurisdiction and powers
These are advocates whose names are entered
with respect to matters in the Union list can be
on the roll of any State Bar Council maintained
enlarged by the Parliament.
under the Advocates Act, 1961 and they can
Further, its jurisdiction and powers with appear and argue any matter on behalf of a party
respect to other matters can be enlarged by a in the Supreme Court but they are not entitled
special agreement of the Centre and the states. to file any document or matter before the Court.

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Chapter 32 – High Court

In the Indian single integrated judicial system, all the 25 high courts are mentioned in table
the high court operates below the Supreme below:
Court but above the subordinate courts.
The judiciary in a state consists of a high court
and a hierarchy of subordinate courts. The high
court occupies the top position in the judicial
administration of a state.
The institution of high court originated in India
in 1862 when the high courts were set up at
Calcutta, Bombay and Madras.
In 1866, a fourth high court was established at
Allahabad. In the course of time, each province
in British India came to have its own high court.
After 1950, a high court existing in a province
became the high court for the corresponding
state.
The Constitution of India provides for a high
court for each state, but the Seventh
Amendment Act of 1956 authorised the
Parliament to establish a common high court for
two or more states or for two or more states and
a union territory.
The territorial jurisdiction of a high court is co-
terminus with the territory of a state. Similarly,
the territorial jurisdiction of a common high
court is co-terminus with the territories of the
concerned states and union territory.
At present (2019), there are 25 high courts in
the country. Out of them, only three high courts
have jurisdiction over more than one state.
Among the eight union territories, Delhi alone
has a separate high court (since 1966). The
union territories of Jammu and Kashmir and
Ladakh have a common high court.
The other union territories fall under the
jurisdiction of different state high courts. The
Parliament can extend the jurisdiction of a high
court to any union territory or exclude the
jurisdiction of a high court from any union
territory.
The name, year of establishment, territorial
jurisdiction and seat (with bench or benches) of
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opinion of the chief justice of India alone does

not constitute the ‘consultation’ process.
The 99th Constitutional Amendment Act of 2014
and the National Judicial Appointments
Commission Act of 2014 have replaced the
Collegium System of appointing judges to the
Source: Laxmikanth Supreme Court and High Courts with a new
Articles 214 to 231 in Part VI of the Constitution body called the National Judicial Appointments
deal with the organisation, independence, Commission (NJAC).
jurisdiction, powers, procedures and so on of However, in 2015, the Supreme Court has
the high courts. declared both the 99th Constitutional
Amendment as well as the NJAC Act as
Composition and Appointment
unconstitutional and void. Consequently, the
Every high court (whether exclusive or
earlier collegium system became operative
common) consists of a chief justice and such
again. This verdict was delivered by the
other judges as the president may from time to
Supreme Court in the Fourth Judges case
time deem necessary to appoint. Thus, the
(2015).
Constitution does not specify the strength of a
high court and leaves it to the discretion of the The Court opined that the new system (i.e.,
president. NJAC) would affect the independence of the
judiciary.
Accordingly, the President determines the
strength of a high court from time to time Qualifications, Oath and Salaries
depending upon its workload. Qualifications of Judges
Appointment of Judges A person to be appointed as a judge of a high
The judges of a high court are appointed by the court, should have the following qualifications:
President. • He should be a citizen of India.
The chief justice is appointed by the President • He should have held a judicial office in the
after consultation with the chief justice of India territory of India for ten years; or
and the governor of the state concerned. • He should have been an advocate of a high
court (or high courts in succession) for ten
For appointment of other judges, the chief years.
justice of the concerned high court is also
consulted. From the above, it is clear that the Constitution
has not prescribed a minimum age for
In case of a common high court for two or more appointment as a judge of a high court.
states, the governors of all the states concerned
are consulted by the president. Moreover, unlike in the case of the Supreme
Court, the Constitution makes no provision for
In the Second Judges case (1993), the Supreme appointment of a distinguished jurist as a judge
Court ruled that no appointment of a judge of of a high court.
the high court can be made, unless it is in
conformity with the opinion of the chief justice Oath or Affirmation
of India. A person appointed as a judge of a high court,
before entering upon his office, has to make and
In the Third Judges case (1998), the Supreme subscribe an oath or affirmation before the
Court opined that in case of the appointment of governor of the state or some person appointed
high court judges, the chief justice of India by him for this purpose.
should consult a collegium of two senior-most
judges of the Supreme Court. Thus, the sole In his oath, a judge of a high court swears:

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• to bear true faith and allegiance to the • He holds office until he attains the age of 62
Constitution of India; years.
• to uphold the sovereignty and integrity of
The retirement age has been raised from 60 to 62
India;
years by the 15th Amendment Act of 1963.
• to duly and faithfully and to the best of his
ability, knowledge and judgement perform Any questions regarding his age is to be decided
the duties of the office without fear or by the president after consultation with the
favour, affection or ill-will; and chief justice of India and the decision of the
• to uphold the Constitution and the laws. president is final.

Salaries and Allowances • He can resign his office by writing to the

The salaries, allowances, privileges, leave and president.
pension of the judges of a high court are • He can be removed from his office by the
determined from time to time by the Parliament. President on the recommendation of the
Parliament.
They cannot be varied to their disadvantage
• He vacates his office when he is appointed as
after their appointment except during a
a judge of the Supreme Court or when he is
financial emergency.
transferred to another high court.
In 2018, the salary of the chief justice was
Removal of Judges
increased from ₹90,000 to 2.50 lakh per month
A judge of a high court can be removed from his
and that of a judge from ₹80,000 to 2.25 lakh per
office by an order of the President.
month.
The President can issue the removal order only
In 1950, their salaries were fixed at ₹4,000 after an address by the Parliament has been
per month and ₹3,500 per month presented to him in the same session for such
respectively. removal.
In 1986, their salaries were raised to ₹9,000 The address must be supported by a special
per month and ₹8,000 per month majority of each House of Parliament (i.e., a
respectively. majority of the total membership of that House
and majority of not less than two-thirds of the
In 1998, their salaries were raised to
members of that House present and voting).
₹30,000 per month and ₹26,000 per month
respectively. The grounds of removal are two–proved
misbehaviour or incapacity.
In 2009, their salaries were raised to
₹90,000 per month and ₹80,000 per month Thus, a judge of a high court can be removed in
respectively. the same manner and on the same grounds as a
judge of the Supreme Court.
They are also paid sumptuary allowance and The Judges Enquiry Act (1968) regulates the
provided with free accommodation and other procedure relating to the removal of a judge of a
facilities like medical, car, telephone, etc. high court by the process of impeachment:
The retired chief justice and judges are entitled • A removal motion signed by 100 members
to 50% of their last drawn salary as monthly (in the case of Lok Sabha) or 50 members (in
pension. the case of Rajya Sabha) is to be given to the
Speaker/Chairman.
Tenure, Removal and Transfer
• The Speaker/Chairman may admit the
Tenure of Judges
motion or refuse to admit it.
The Constitution has not fixed the tenure of a • If it is admitted, then the Speaker/ Chairman
judge of a high court. However, it makes the is to constitute a three-member committee
following four provisions in this regard: to investigate into the charges.
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• The committee should consist of (a) the chief Acting, Additional and Retired Judges
justice or a judge of the Supreme Court, (b) a Acting Chief Justice
chief justice of a high court, and (c) a The President can appoint a judge of a high
distinguished jurist. court as an acting chief justice of the high court
• If the committee finds the judge to be guilty when:
of misbehaviour or suffering from an
incapacity, the House can take up the • the office of chief justice of the high court is
consideration of the motion. vacant; or
• After the motion is passed by each House of • the chief justice of the high court is
Parliament by special majority, an address is temporarily absent; or
presented to the president for removal of the • the chief justice of the high court is unable to
judge. perform the duties of his office.
• Finally, the president passes an order Additional and Acting Judges
removing the judge. The President can appoint duly qualified
From the above, it is clear that the procedure for persons as additional judges of a high court for
the impeachment of a judge of a high court is the a temporary period not exceeding two years
same as that for a judge of the Supreme Court. when:

It is interesting to know that no judge of a high • there is a temporary increase in the business
court has been impeached so far. of the high court; or
• there are arrears of work in the high court.
Transfer of Judges
The President can transfer a judge from one The President can also appoint a duly qualified
high court to another after consulting the Chief person as an acting judge of a high court when a
Justice of India. judge of that high court (other than the chief
justice) is:
On transfer, he is entitled to receive in addition
to his salary such compensatory allowance as • unable to perform the duties of his office due
may be determined by Parliament. to absence or any other reason; or
• appointed to act temporarily as chief justice
In 1977, the Supreme Court ruled that the
of that high court.
transfer of high court judges could be resorted
to only as an exceptional measure and only in An acting judge holds office until the permanent
public interest and not by way of punishment. judge resumes his office. However, both the
additional or acting judge cannot hold office
Again in 1994, the Supreme Court held that
after attaining the age of 62 years.
judicial review is necessary to check
arbitrariness in transfer of judges. But only the Retired Judges
judge who is transferred can challenge it. At any time, the chief justice of a high court of a
state can request a retired judge of that high
In the Third Judges case (1998), the Supreme
court or any other high court to act as a judge of
Court opined that in case of the transfer of high
the high court of that state for a temporary
court judges, the Chief Justice of India should
period.
consult, in addition to the collegium of four
senior-most judges of the Supreme Court, the He can do so only with the previous consent of
chief justice of the two high courts (one from the President and also of the person to be so
which the judge is being transferred and the appointed. Such a judge is entitled to such
other receiving him). Thus, the sole opinion of allowances as the President may determine.
the chief justice of India does not constitute the
He will also enjoy all the jurisdiction, powers
‘consultation’ process.
and privileges of a judge of that high court. But
he will not otherwise be deemed to be a judge of
that high court.
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Independence of High Court court are charged on the consolidated fund of

The independence of a high court is very the state.
essential for the effective discharge of the duties Thus, they are non-votable by the state
assigned to it. It should be free from the legislature (though they can be discussed by it).
encroachments, pressures and interferences of
the executive (council of ministers) and the The pension of a high court judge is charged on
legislature. It should be allowed to do justice the Consolidated Fund of India and not the state.
without fear or favour.
Conduct of Judges cannot be Discussed
The Constitution has made the following The Constitution prohibits any discussion in
provisions to safeguard and ensure the Parliament or in a state legislature with respect
independent and impartial functioning of a high to the conduct of the judges of a high court in the
court. discharge of their duties, except when an
impeachment motion is under consideration of
Mode of Appointment the Parliament.
The judges of a high court are appointed by the
president (which means the cabinet) in Ban on Practice after Retirement
consultation with the members of the judiciary The retired permanent judges of a high court are
itself (i.e., chief justice of India and the chief prohibited from pleading or acting in any court
justice of the high court). or before any authority in India except the
Supreme Court and the other high courts. This
This provision curtails the absolute discretion of ensures that they do not favour anyone in the
the executive as well as ensures that the judicial hope of future favour.
appointments are not based on any political or
practical considerations. Power to Punish for its Contempt
A high court can punish any person for its
Security of Tenure contempt. Thus, its actions and decisions cannot
The judges of a high court are provided with the be criticised and opposed by anybody. This
security of tenure. They can be removed from power is vested in a high court to maintain its
office by the president only in the manner and authority, dignity and honour.
on the grounds mentioned in the Constitution.
Freedom to Appoint its Staff
This means that they do not hold their office The chief justice of a high court can appoint
during the pleasure of the president, though officers and servants of the high court without
they are appointed by him. This is obvious from any interference from the executive. He can also
the fact that no judge of a high court has been prescribe their conditions of service.
removed (or impeached) so far.
Its Jurisdiction cannot be Curtailed
Fixed Service Conditions The jurisdiction and powers of a high court in so
The salaries, allowances, privileges, leave and far as they are specified in the Constitution
pension of the judges of a high court are cannot be curtailed both by the Parliament and
determined from time to time by the Parliament. the state legislature. But, in other respects, the
But they cannot be changed to their jurisdiction and powers of a high court can be
disadvantage after their appointment except changed both by the parliament and the state
during a financial emergency. Thus, the legislature.
conditions of service of the judges of a high court
remain same during their term of office. Separation from Executive
The Constitution directs the state to take steps
Expenses Charged on Consolidated Fund to separate the judiciary from the executive in
The salaries and allowances of the judges, the public services. This means that the executive
salaries, allowances and pensions of the staff as authorities should not possess the judicial
well as the administrative expenses of a high powers. Consequent upon its implementation,

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the role of executive authorities in judicial Original Jurisdiction

administration came to an end. It means the power of a high court to hear
disputes in the first instance, not by way of
Jurisdiction and Powers of High Court appeal. It extends to the following:
Like the Supreme Court, the high court has been
vested with quite extensive and effective • Matters of admirality and contempt of court.
powers. • Disputes relating to the election of members
of Parliament and state legislatures.
It is the highest court of appeal in the state. It is
• Regarding revenue matter or an act ordered
the protector of the Fundamental Rights of the
or done in revenue collection.
citizens. It is vested with the power to interpret
• Enforcement of fundamental rights of
the Constitution. Besides, it has supervisory and
citizens.
consultative roles.
• Cases ordered to be transferred from a
However, the Constitution does not contain subordinate court involving the
detailed provisions with regard to the interpretation of the Constitution to its own
jurisdiction and powers of a high court. It only file.
lays down that the jurisdiction and powers of a • The four high courts (i.e., Calcutta, Bombay,
high court are to be the same as immediately Madras and Delhi High Courts) have original
before the commencement of the Constitution. civil jurisdiction in cases of higher value.
But, there is one addition, that is, the Before 1973, the Calcutta, Bombay and Madras
Constitution gives a high court jurisdiction over High Courts also had original criminal
revenue matters (which it did not enjoy in the jurisdiction. This was fully abolished by the
pre-constitution era). Criminal Procedure Code, 1973.
The Constitution also confers (by other Writ Jurisdiction
provisions) some more additional powers on a Article 226 of the Constitution empowers a high
high court like writ jurisdiction, power of court to issue writs including habeas corpus,
superintendence, consultative power, etc. mandamus, certiorari, prohibition and quo
Moreover, it empowers the Parliament and the warranto for the enforcement of the
state legislature to change the jurisdiction and fundamental rights of the citizens and for any
powers of a high court. other purpose.
At present, a high court enjoys the following The phrase ‘for any other purpose’ refers to the
jurisdiction and powers: enforcement of an ordinary legal right.
• Original jurisdiction The high court can issue writs to any person,
• Writ jurisdiction authority and government not only within its
• Appellate jurisdiction territorial jurisdiction but also outside its
• Supervisory jurisdiction territorial jurisdiction if the cause of action
• Control over subordinate courts arises within its territorial jurisdiction.
• A court of record The writ jurisdiction of the high court (under
• Power of judicial review Article 226) is not exclusive but concurrent with
The present jurisdiction and powers of a high the writ jurisdiction of the Supreme Court
court are governed by (a) the constitutional (under Article 32). It means, when the
provisions, (b) the Letters Patent, (c) the Acts of fundamental rights of a citizen are violated, the
Parliament, (d) the Acts of State Legislature, (e) aggrieved party has the option of moving either
Indian Penal Code, 1860, (f) Criminal Procedure the high court or the Supreme Court directly.
Code, 1973, and (g) Civil Procedure Code, 1908. However, the writ jurisdiction of the high court
is wider than that of the Supreme Court. This is
because, the Supreme Court can issue writs only
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for the enforcement of fundamental rights and the decisions of the tribunals, without first
not for any other purpose, that is, it does not going to the high courts.
extend to a case where the breach of an ordinary
Criminal Matters
legal right is alleged.
The criminal appellate jurisdiction of a high
In the Chandra Kumar case (1997), the Supreme
court is as follows:
Court ruled that the writ jurisdiction of both the
high court and the Supreme Court constitute a • Appeals from the judgements of sessions
part of the basic structure of the Constitution. court and additional sessions court lie to the
Hence, it cannot be ousted or excluded even by high court if the sentence is one of
way of an amendment to the Constitution. imprisonment for more than seven years. It
should also be noted here that a death
Appellate Jurisdiction
sentence (popularly known as capital
A high court is primarily a court of appeal. It
punishment) awarded by a sessions court or
hears appeals against the judgements of
an additional sessions court should be
subordinate courts functioning in its territorial
confirmed by the high court before it can be
jurisdiction. It has appellate jurisdiction in both
executed, whether there is an appeal by the
civil and criminal matters. Hence, the appellate
convicted person or not.
jurisdiction of a high court is wider than its
original jurisdiction. • In some cases, specified in various
provisions of the Criminal Procedure Code
Civil Matters (1973), the appeals from the judgements of
the assistant sessions judge, metropolitan
The civil appellate jurisdiction of a high court is
magistrate or other magistrates (judicial) lie
as follows:
to the high court.
• First appeals from the orders and
Supervisory Jurisdiction
judgements of the district courts, additional
A high court has the power of superintendence
district courts and other subordinate courts
over all courts and tribunals functioning in its
lie directly to the high court, on both
territorial jurisdiction (except military courts or
questions of law and fact, if the amount
tribunals). Thus, it may–
exceeds the stipulated limit.
• Second appeals from the orders and • call for returns from them;
judgements of the district court or other • make and issue, general rules and prescribe
subordinate courts lie to the high court in forms for regulating the practice and
the cases involving questions of law only proceedings of them;
(and not questions of fact). • prescribe forms in which books, entries and
• The Calcutta, Bombay and Madras High accounts are to be kept by them; and
Courts have provision for intra-court • settle the fees payable to the sheriff, clerks,
appeals. When a single judge of the high officers and legal practitioners of them.
court has decided a case (either under the
original or appellate jurisdiction of the high This power of superintendence of a high court is
court), an appeal from such a decision lies to very broad because,
the division bench of the same high court. • it extends to all courts and tribunals whether
• Appeals from the decisions of the they are subject to the appellate jurisdiction
administrative and other tribunals lie to the of the high court or not;
division bench of the state high court. In • it covers not only administrative
1997, the Supreme Court ruled that the superintendence but also judicial
tribunals are subject to the writ jurisdiction superintendence;
of the high courts. Consequently, it is not • it is a revisional jurisdiction; and
possible for an aggrieved person to • it can be suo-motu (on its own) and not
approach the Supreme Court directly against necessarily on the application of a party.
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However, this power does not vest the high admitted to be of evidentiary value and
court with any unlimited authority over the cannot be questioned when produced before
subordinate courts and tribunals. It is an any subordinate court. They are recognised
extraordinary power and hence has to be used as legal precedents and legal references.
most sparingly and only in appropriate cases. • It has power to punish for contempt of court,
either with simple imprisonment or with
Usually, it is limited to,
fine or with both.
• excess of jurisdiction,
The expression ‘contempt of court’ has not been
• gross violation of natural justice,
defined by the Constitution. However, the
• error of law, expression has been defined by the Contempt of
• disregard to the law of superior courts, Court Act of 1971. Under this, contempt of court
• perverse findings, and may be civil or criminal. Civil contempt means
• manifest injustice. wilful disobedience to any judgement, order,
Control over Subordinate Courts writ or other process of a court or wilful breach
In addition to its appellate jurisdiction and of an undertaking given to a court.
supervisory jurisdiction over the subordinate Criminal contempt means the publication of any
courts as mentioned above, a high court has an matter or doing an act which
administrative control and other powers over
them. These include the following: • scandalises or lowers the authority of a
court; or
• It is consulted by the governor in the matters • prejudices or interferes with the due course
of appointment, posting and promotion of of a judicial proceeding; or
district judges and in the appointments of • interferes or obstructs the administration of
persons to the judicial service of the state justice in any other manner.
(other than district judges).
• It deals with the matters of posting, However, innocent publication and distribution
promotion, grant of leave, transfers and of some matter, fair and accurate report of
discipline of the members of the judicial judicial proceedings, fair and reasonable
service of the state (other than district criticism of judicial acts and comment on the
judges). administrative side of the judiciary do not
• It can withdraw a case pending in a amount to contempt of court.
subordinate court if it involves a substantial As a court of record, a high court also has the
question of law that require the power to review and correct its own judgement
interpretation of the Constitution. It can or order or decision, even though no specific
then either dispose of the case itself or power of review is conferred on it by the
determine the question of law and return the Constitution.
case to the subordinate court with its
judgement. The Supreme Court, on the other hand, has been
• Its law is binding on all subordinate courts specifically conferred with the power of review
functioning within its territorial jurisdiction by the constitution.
in the same sense as the law declared by the Power of Judicial Review
Supreme Court is binding on all courts in Judicial review is the power of a high court to
India. examine the constitutionality of legislative
A Court of Record enactments and executive orders of both the
As a court of record, a high court has two Central and state governments.
powers: On examination, if they are found to be violative
• The judgements, proceedings and acts of the of the Constitution (ultra-vires), they can be
high courts are recorded for perpetual declared as illegal, unconstitutional and invalid
memory and testimony. These records are
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(null and void) by the high court. Consequently, • it infringes the fundamental rights (Part III),
they cannot be enforced by the government. • it is outside the competence of the authority
which has framed it, and
Though the phrase ‘judicial review’ has
• it is repugnant to the constitutional
nowhere been used in the Constitution, the
provisions.
provisions of Articles 13 and 226 explicitly
confer the power of judicial review on a high The 42nd Amendment Act of 1976 curtailed the
court. judicial review power of high court.
The constitutional validity of a legislative It debarred the high courts from considering the
enactment or an executive order can be constitutional validity of any central law.
challenged in a high court on the following three However, the 43rd Amendment Act of 1977
grounds: restored the original position.

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Chapter 33 – Subordinate Courts

The state judiciary consists of a high court and a Interpretation

hierarchy of subordinate courts, also known as The expression ‘district judge’ includes judge of
lower courts. a city civil court, additional district judge, joint
district judge, assistant district judge, chief
The subordinate courts are so called because of
judge of a small cause court, chief presidency
their subordination to the state high court. They
magistrate, additional chief presidency
function below and under the high court at
magistrate, sessions judge, additional sessions
district and lower levels.
judge and assistant sessions judge.
Constitutional Provisions The expression ‘judicial service’ means a service
Articles 233 to 237 in Part VI of the Constitution consisting exclusively of persons intended to fill
make the following provisions to regulate the the post of district judge and other civil judicial
organization of subordinate courts and to posts inferior to the post of district judge.
ensure their independence from the executive.
Application of the above Provisions to
Appointment of District Judges Certain Magistrates
The appointment, posting and promotion of
district judges in a state are made by the The Governor may direct that the above-
governor of the state in consultation with the mentioned provisions relating to persons in the
high court. state judicial service would apply to any class or
classes of magistrates in the state.
A person to be appointed as district judge
should have the following qualifications: Structure and Jurisdiction
The organisational structure, jurisdiction and
• He should not already be in the service of the
nomenclature of the subordinate judiciary are
Central or the state government.
laid down by the states. Hence, they differ
• He should have been an advocate or a slightly from state to state. Broadly speaking,
pleader for seven years. there are three tiers of civil and criminal courts
• He should be recommended by the high below the High Court. This is shown as follows:
court for appointment.
Appointment of Other Judges
Appointment of persons (other than district
judges) to the judicial service of a state are made
by the governor of the state after consultation
with the State Public Service Commission and
the high court.
The State Public Service Commission conducts a
competitive examination for recruitment to the
judicial service of the state.
Control over Subordinate Courts
The control over district courts and other
subordinate courts including the posting,
promotion and leave of persons belonging to the The district judge is the highest judicial
judicial service of a state and holding any post authority in the district. He possesses original
inferior to the post of district judge is vested in and appellate jurisdiction in both civil as well as
the high court. criminal matters.

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In other words, the district judge is also the National Legal Services Authority
sessions judge. When he deals with civil cases, Article 39A of the Constitution of India provides
he is known as the district judge and when he for free legal aid to the poor and weaker sections
hears the criminal cases, he is called as the of the society and ensures justice for all.
sessions judge.
Articles 14 and 22(1) of the Constitution also
The district judge exercises both judicial and make it obligatory for the State to ensure
administrative powers. He also has supervisory equality before law and a legal system which
powers over all the subordinate courts in the promotes justice on the basis of equal
district. opportunity to all.
Appeals against his orders and judgements lie to In the year 1987, the Legal Services Authorities
the High Court. The sessions judge has the Act was enacted by the Parliament which came
power to impose any sentence including life into force on 9th November, 1995 to establish a
imprisonment and capital punishment (death nationwide uniform network for providing free
sentence). However, a capital punishment and competent legal services to the weaker
passed by him is subject to confirmation by the sections of the society on the basis of equal
High Court, whether there is an appeal or not. opportunity.
Below the District and Sessions Court stands the The National Legal Services Authority (NALSA)
Court of Subordinate Judge on the civil side and has been constituted under the Legal Services
the Court of Chief Judicial Magistrate on the Authorities Act, 1987 to monitor and evaluate
criminal side. The subordinate judge exercises implementation of legal aid programmes and to
unlimited pecuniary jurisdiction over civil suits. lay down policies and principles for making
The chief judicial magistrate decides criminal legal services available under the Act.
cases which are punishable with imprisonment
for a term up to seven years. In every State, a State Legal Services Authority
and in every High Court, a High Court Legal
At the lowest level, on the civil side, is the Court Services Committee have been constituted.
of Munsiff and on the criminal side, is the Court
of Judicial Magistrate. The munsiff possesses The District Legal Services Authorities, Taluk
limited jurisdiction and decides civil cases of Legal Services Committees have been
small pecuniary stake. The judicial magistrate constituted in the Districts and most of the
tries criminal cases which are punishable with Taluks to give effect to the policies and
imprisonment for a term up to three years. directions of the NALSA and to provide free legal
services to the people and conduct Lok Adalats
In some metropolitan cities, there are city civil in the State.
courts (chief judges) on the civil side and the
courts of metropolitan magistrates on the The Supreme Court Legal Services Committee
criminal side. has been constituted to administer and
implement the legal services programme in so
Some of the States and Presidency towns have far as it relates to the Supreme Court of India.
established small causes courts. These courts
decide the civil cases of small value in a The NALSA lays down policies, principles,
summary manner. Their decisions are final, but guidelines and frames effective and economical
the High Court possesses a power of revision. schemes for the State Legal Services Authorities
to implement the Legal Services Programmes
In some states, Panchayat Courts try petty civil throughout the country.
and criminal cases.
Primarily, the State Legal Services Authorities,
They are variously known as Nyaya Panchayat, District Legal Services Authorities, Taluk Legal
Gram Kutchery, Adalati Panchayat, Panchayat Services Committees, etc. have been asked to
Adalat and so on. discharge the following main functions on
regular basis:
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• To provide free and competent legal services The word ‘Lok Adalat’ means ‘People’s Court’.
to the eligible persons.
This system is based on Gandhian principles.
• To organise Lok Adalats for amicable
settlement of disputes. It is one of the components of ADR (Alternative
• To organise legal awareness camps in the Dispute Resolution) system.
rural areas.
As the Indian courts are overburdened with the
The free legal services include: backlog of cases and the regular courts are to
decide the cases involving a lengthy, expensive
▪ Payment of court fee, process fees and all and tedious procedure. The court takes years
other charges payable or incurred in
together to settle even petty cases. The Lok
connection with any legal proceedings. Adalat, therefore, provides alternative
▪ Providing service of lawyers in legal
resolution or devise for expeditious and
proceedings. inexpensive justice.
▪ Obtaining and supply of certified copies of
orders and other documents in legal In Lok Adalat proceedings, there are no victors
proceedings. and vanquished and, thus, no rancour.
▪ Preparation of appeal, paper book including
The experiment of ‘Lok Adalat’ as an alternate
printing and translation of documents in
mode of dispute settlement has come to be
legal proceedings.
accepted in India, as a viable, economic, efficient
The persons eligible for getting free legal and informal one.
services include:
The Lok Adalat is another alternative in judicial
• Women and children justice. This is a recent strategy for delivering
• Members of SC/ST informal, cheap and expeditious justice to the
• Industrial workmen common man by way of settling disputes, which
• Victims of mass disaster, violence, flood, are pending in courts and also those, which have
drought, earthquake, industrial disaster not yet reached courts by negotiation,
• Disabled persons conciliation and by adopting persuasive,
• Persons in custody common sense and human approach to the
• Persons whose annual income does not problems of the disputants, with the assistance
exceed ₹1 lakh (in the Supreme Court Legal of specially trained and experienced members
Services Committee the limit ₹1,25,000/-) of a team of conciliators.
• Victims of trafficking in human beings or Statutory Status
begar. The first Lok Adalat camp in the post-
independence era was organised in Gujarat in
Lok Adalats 1982. This initiative proved very successful in
The Lok Adalat is a forum where the cases (or
the settlement of disputes. Consequently, the
disputes) which are pending in a court or which
institution of Lok Adalat started spreading to
are at pre-litigation stage (not yet brought other parts of the country.
before a court) are compromised or settled in an
amicable manner. At that time, this institution was functioning as
a voluntary and conciliatory agency without any
Meaning statutory backing for its decisions.
The Supreme Court has explained the meaning
of the institution of Lok Adalat in the following In view of its growing popularity, there arose a
way: demand for providing a statutory backing to this
institution and the awards given by Lok Adalats.
The ‘Lok Adalat’ is an old form of adjudicating
Hence, the institution of Lok Adalat has been
system prevailed in ancient India and its validity
given statutory status under the Legal Services
has not been taken away even in the modern Authorities Act, 1987.
days too.
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The Act makes the following provisions relating • Any case pending before the court can be
to the organisation and functioning of the Lok referred to the Lok Adalat for settlement if:
Adalats: o the parties thereof agree to settle the
dispute in the Lok Adalat
• The State Legal Services Authority or the
o one of the parties thereof makes an
District Legal Services Authority or the
application to the court referring the
Supreme Court Legal Services Committee or
case to the Lok Adalat; or
the High Court Legal Services Committee or
o the court is satisfied that the matter is an
the Taluk Legal Services Committee may
appropriate one to taken cognizance of
organise Lok Adalats at such intervals and
by the Lok Adalat.
places and for exercising such jurisdiction
and for such areas as it thinks fit. In the case of a pre-litigation dispute, the matter
• Every Lok Adalat organised for an area shall can be referred to the Lok Adalat for settlement
consist of such number of serving or retired by the agency organizing the Lok Adalat, on
judicial officers and other persons of the receipt of an application from any one of the
area as may be specified by the agency parties to the dispute.
organizing such Lok Adalat. Generally, a Lok
• The Lok Adalat shall have the same powers
Adalat consists of a judicial officer as the
as are vested in a Civil Court under the Code
chairman and a lawyer (advocate) and a
of Civil Procedure (1908), while trying a suit
social worker as members.
in respect of the following matters:
• A Lok Adalat shall have jurisdiction to
o the summoning and enforcing the
determine and to arrive at a compromise or
attendance of any witness examining
settlement between the parties to a dispute
him on oath;
in respect of:
o the discovery and production of any
o any case pending before any court; or
document;
o any matter which is falling within the
o the reception of evidence on affidavits;
jurisdiction of any court and not brought
o the requisitioning of any public record or
before such court.
document from any court or office; and
Thus, the Lok Adalat can deal with not only the o such other matters as may be prescribed.
cases pending before a court but also with the
Further, a Lok Adalat shall have the requisite
disputes at pre-litigation stage.
powers to specify its own procedure for the
The various matters such as Matrimonial/Family determination of any dispute coming before it.
Disputes, Criminal (Compoundable Offences) Also, all proceedings before a Lok Adalat shall be
cases, Land Acquisition cases, Labour disputes, deemed to be judicial proceedings within the
Workmen’s compensation cases, Bank Recovery meaning of the Indian Penal Code (1860) and
cases, Pension cases, Housing Board and Slum every Lok Adalat shall be deemed to be a Civil
Clearance cases, Housing Finance cases, Court for the purpose of the Code of Criminal
Consumer Grievance cases, Electricity matters, Procedure (1973).
Disputes relating to Telephone Bills, Municipal
• An award of a Lok Adalat shall be deemed to
matters including House Tax cases, Disputes with
be a decree of a Civil Court or an order of any
Cellular Companies etc. are being taken up in the
other court. Every award made by a Lok
Lok Adalats.
Adalat shall be final and binding on all the
But, the Lok Adalat shall have no jurisdiction in parties to the dispute. No appeal shall lie to
respect of any case or matter relating to an any court against the award of the Lok
offence not compoundable under any law. In Adalat.
other words, the offences which are non-
Benefits
compoundable under any law fall outside the
According to the Supreme Court, the benefits
purview of the Lok Adalat.
under Lok Adalat are as follows:

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• There is no court fee and if court fee is authorities for providing free and competent
already paid the amount will be refunded if legal services to the weaker sections of the
the dispute is settled at Lok Adalat. society to ensure that opportunities for
• The basic features of Lok Adalat are the securing justice were not denied to any
procedural flexibility and speedy trial of the citizen by reason of economic or other
disputes. There is no strict application of disabilities and to organise Lok Adalats to
procedural laws like the Civil Procedure ensure that the operation of the legal system
Code and the Evidence Act while assessing promotes justice on a basis of equal
the claim by Lok Adalat. opportunity.
• The parties to the dispute can directly • The system of Lok Adalat, which is an
interact with the judge through their counsel innovative mechanism for alternate dispute
which is not possible in regular courts of law. resolution, has proved effective for resolving
• The award by the Lok Adalat is binding on disputes in a spirit of conciliation outside the
the parties and it has the status of a decree courts.
of a civil court and it is non-appealable, • However, the major drawback in the existing
which does not cause the delay in the scheme of organization of the Lok Adalats
settlement of disputes finally. under the said Act is that the system of Lok
Adalats is mainly based on compromise or
In view of above facilities provided by the Act, settlement between the parties. If the parties
Lok Adalats are boon to the litigating public as do not arrive at any compromise or
they can get their disputes settled fast and free settlement, the case is either returned to the
of cost amicably. court of law or the parties are advised to
The Law Commission of India summarized the seek remedy in a court of law. This causes
advantages of ADR (Alternative Dispute unnecessary delay in the dispensation of
Resolution) in the following way: justice. If Lok Adalats are given power to
decide the cases on merits in case parties
• It is less expensive. fails to arrive at any compromise or
• It is less time-consuming. settlement, this problem can be tackled to a
• It is free from technicalities vis-a-vis great extent.
conducting of cases in law courts. • Further, the cases which arise in relation to
• Parties are free to discuss their differences public utility services such as Mahanagar
of opinion without any fear of disclosure Telephone Nigam Limited, Delhi Vidyut
before any law courts. Board, etc., need to be settled urgently so
• Parties have the feeling that there is no that people get justice without delay even at
losing or winning side between them but at pre-litigation stage and thus most of the
the same time their grievance is redressed petty cases which ought not to go in the
and their relationship is restored. regular courts would be settled at the pre-
litigation stage itself which would result in
Permanent Lok Adalats
reducing the workload of the regular courts
The Legal Services Authorities Act, 1987 was
to a great extent.
amended in 2002 to provide for the
• It is, therefore, proposed to amend the Legal
establishment of the Permanent Lok Adalats to
Services Authorities Act, 1987 to set up
deal with cases pertaining to the public utility
Permanent Lok Adalats for providing
services.
compulsory pre-litigative mechanism for
Reasons conciliation and settlement of cases relating
The reasons for the establishment of Permanent to public utility services.
Lok Adalats are as follows:
Features
• The Legal Services Authorities Act, 1987 was The salient features of the new institution of
enacted to constitute legal services Permanent Lok Adalats are as follows:

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• The Permanent Lok Adalat shall consist of a Family Courts

Chairman who is or has been a district judge The Family Courts Act, 1984 was enacted to
or additional district judge or has held provide for the establishment of Family Courts
judicial office higher in rank than that of the with a view to promote conciliation and secure
district judge and two other persons having speedy settlement of disputes relating to
adequate experience in public utility marriage and family affairs.
services.
Reasons
• The Permanent Lok Adalat shall exercise
The reasons for the establishment of separate
jurisdiction in respect of one or more public
Family Courts are as follows:
utility services such as transport services of
passengers or goods by air, road and water; • Several associations of women, other
postal, telegraph or telephone services; organizations and individuals have urged,
supply of power, light or water to the public from time to time, that Family Courts, be set
by any establishment; public conservancy or up for the settlement of family disputes,
sanitation; services in hospitals or where emphasis should be laid on
dispensaries; and insurance services. conciliation and achieving socially desirable
• The pecuniary jurisdiction of the Permanent results and adherence to rigid rules of
Lok Adalat shall be up to rupees ten lakhs. procedure and evidence should be
However, the Central Government may eliminated.
increase the said pecuniary jurisdiction from • The Law Commission in its 59th report
time to time. (1974) had also stressed that in dealing with
• The Permanent Lok Adalat shall have not disputes concerning the family the Court
jurisdiction in respect of any matter relating ought to adopt an approach radically
to an offence not compoundable under any different from the adopted in ordinary civil
law. proceedings and that it should make
• Before the dispute is brought before any reasonable efforts at settlement before the
court, any party to the dispute may make an commencement of the trial. The Code of Civil
application to the Permanent Lok Adalat for Procedure was amended in 1976 to provide
settlement of the dispute. After an for a special procedure to be adopted in suits
application is made to the Permanent Lok or proceedings relating to matters
Adalat, no party to that application shall concerning the family.
invoke jurisdiction of any court in the same • However, not much use has been made by
dispute. the Courts in adopting this conciliatory
• Where it appears to the Permanent Lok procedure and the Courts continue to deal
Adalat that there exist elements of a with family disputes in the same manner as
settlement, which may be acceptable to the other civil matters and the same adversary
parties, it shall formulate the terms of a approach prevails. The need was, therefore,
possible settlement and submit them to the felt, in the public interest, to establish Family
parties for their observations and in case the Courts for speedy settlement of family
parties reach an agreement, the Permanent disputes.
Lok Adalat shall pass an award in terms
thereof. In case parties to the dispute fail to Therefore, the main objectives and reasons for
reach an agreement, the Permanent Lok setting up of Family Courts are:
Adalat shall decide the dispute on merits. • To create a Specialized Court which will
• Every award made by the Permanent Lok exclusively deal with family matters so that
Adalat shall be final and binding on all the such a court may have the necessary
parties thereto and shall be by a majority of expertise to deal with these cases
the persons constituting the Permanent Lok expeditiously. Thus, expertise and
Adalat. expeditious disposal are two main factors
for establish such a court;
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• To institute a mechanism for conciliation of of right, to be represented by legal

the disputes relating to family; practitioner. However, the Court may, in the
• To provide an inexpensive remedy; and interest of justice, seek assistance of a legal
• To have flexibility and an informal expert as amicus curiae.
atmosphere in the conduct of proceedings. • It simplifies the rules of evidence and
procedure so as to enable a Family Court to
Features deal effectively with a dispute.
The salient features of the Family Courts Act,
• It provides for only one right of appeal which
1984 are as follows:
shall lie to the High Court.
• It provides for the establishment of Family
Gram Nyayalayas
Courts by the State Governments in
The Gram Nyayalayas Act, 2008 has been
consultation with the High Courts.
enacted to provide for the establishment of the
• It makes it obligatory on the State
Gram Nyayalayas at the grass roots level for the
Governments to set up a Family Court in
purposes of providing access to justice to the
every city or town with a population
citizens at their doorsteps and to ensure that
exceeding one million.
opportunities for securing justice are not denied
• It enables the State Governments to set up
to any citizen due to social, economic or other
Family Courts in other areas also, if they
disabilities.
deem it necessary.
• It exclusively provides within the Reasons
jurisdiction of the Family Courts the matters The reasons for the establishment of Gram
relating to: Nyayalayas are as follows:
o matrimonial relief, including nullity of
• Access to justice by the poor and
marriage, judicial separation, divorce,
disadvantaged remains a worldwide
restitution of conjugal rights, or
problem despite diverse approaches and
declaration as to validity of marriage or
strategies that have been formulated and
as to the matrimonial status of any
implemented to address it. In our country,
person;
Article 39A of the Constitution directs the
o the property of the spouses or of either
State to secure that the operation of the legal
of them;
system promotes justice, on a basis of equal
o declaration as to the legitimacy of any
opportunity and shall provide free legal aid
person;
to ensure that opportunities for securing
o guardianship of a person or the custody
justice are not denied to any citizen by
of any minor; and
reason of economic or other disabilities.
o maintenance of wife, children and
• In the recent past, the Government has taken
parents.
various measures to strengthen judicial
system, by simplifying the procedural laws;
• It makes it obligatory on the part of the
incorporating various alternative dispute
Family Court to endeavour, in the first
resolution mechanisms such as arbitration,
instance to effect a reconciliation or a
conciliation and mediation; conducting of
settlement between the parties to a family
Lok Adalats, etc. These measures are
dispute. During this stage, the proceedings
required to be strengthened further.
will be informal and rigid rules of procedure
• The Law Commission of India in its 114th
shall not apply.
Report on Gram Nyayalaya suggested
• It provides for the association of social
establishment of Gram Nyayalayas so that
welfare agencies, counsellors, etc., during
speedy, inexpensive and substantial justice
conciliation stage and also to secure the
could be provided to the common man. The
service of medical and welfare experts.
Gram Nyayalayas Act, 2008 is broadly based
• It provides that the parties to a dispute
before a Family Court shall not be entitled, as
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on the recommendations of the Law • The Gram Nyayalaya shall try to settle the
Commission. disputes as far as possible by bringing about
• Justice to the poor at their door step is a conciliation between the parties and for this
dream of the poor. Setting up of Gram purpose, it shall make use of the conciliators
Nyayalayas in the rural areas would bring to to be appointed for this purpose.
the people of rural areas speedy, affordable • The judgment and order passed by the Gram
and substantial justice. Nyayalaya shall be deemed to be a decree
and to avoid delay in its execution, the Gram
Features
Nyayalaya shall follow summary procedure
The salient features of the Gram Nyayalayas Act
for its execution.
are as follows:
• The Gram Nyayalaya shall not be bound by
• The Gram Nyayalaya shall be court of the rules of evidence provided in the Indian
Judicial Magistrate of the first class and its Evidence Act, 1872 but shall be guided by
presiding officer (Nyayadhikari) shall be the principles of natural justice and subject
appointed by the State Government in to any rule made by the High Court.
consultation with the High Court. • Appeal in criminal cases shall lie to the Court
• The Gram Nyayalaya shall be established for of Session, which shall be heard and
every Panchayat at intermediate level or a disposed of within a period of six months
group of contiguous Panchayats at from the date of filing of such appeal.
intermediate level in a district or where • Appeal in civil cases shall lie to the District
there is no Panchayat at intermediate level Court, which shall be heard and disposed of
in any State, for a group of contiguous within a period of six months from the date
Panchayats. of filing of the appeal.
• The Nyayadhikaris who will preside over • A person accused of an offence may file an
these Gram Nyayalayas are strictly judicial application for plea bargaining.
officers and will be drawing the same salary,
Establishment
deriving the same powers as First Class
The Central Government has decided to meet
Magistrates working under High Courts.
the non-recurring expenditure on the
• The Gram Nyayalaya shall be a mobile court
establishment of these Gram Nyayalayas subject
and shall exercise the powers of both
to a ceiling of ₹18.00 lakhs out of which ₹10.00
Criminal and Civil Courts.
lakhs is for construction of the court, ₹5.00 lakhs
• The seat of the Gram Nyayalaya will be
for vehicle and ₹3.00 lakhs for office equipment.
located at the headquarters of the
intermediate Panchayat, they will go to More than 5000 Gram Nyayalayas are expected
villages, work there and dispose of the cases. to be set up under the Act for which the Central
• The Gram Nyayalaya shall try criminal cases, Government would provide about ₹1400 crores
civil suits, claims or disputes which are by way of assistance to the concerned
specified in the First Schedule and the States/Union Territories.
Second Schedule to the Act.
Under of the Gram Nyayalayas Act, 2008, it is for
• The Central as well as the State Governments
the State Governments to establish Gram
have been given power to amend the First
Nyayalayas in consultation with the respective
Schedule and the Second Schedule of the Act,
High Courts.
as per their respective legislative
competence. Majority of States have now set up regular
• The Gram Nyayalaya shall follow summary courts at Taluka level. Further, reluctance of
procedure in criminal trial. police officials and other State functionaries to
• The Gram Nyayalaya shall exercise the invoke jurisdiction of Gram Nyayalayas,
powers of a Civil Court with certain lukewarm response of the Bar, non-availability
modifications and shall follow the special of notaries and stamp vendors, problem of
procedure as provided in the Act. concurrent jurisdiction of regular courts are
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other issues indicated by the States which are was decided in the Conference that the State
coming in the way of operationalization of the Government and High Court should decide the
Gram Nyayalayas. question of establishment of Gram Nyayalayas
wherever feasible, taking into account their
The issues affecting operationalization of the
local problems. The focus is on setting up Gram
Gram Nyayalayas were discussed in the
Nyayalayas in the Talukas where regular courts
Conference of Chief Justices of High Courts and
have not been set up.
Chief Ministers of the States in April, 2013. It
********

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Chapter 34 – Tribunals

The original Constitution did not contain civilian employees of defence services.
provisions with respect to tribunals. The 42nd However, the members of the defence forces,
Amendment Act of 1976 added a new Part XIV - officers and servants of the Supreme Court and
A to the Constitution. This part is entitled as the secretarial staff of the Parliament are not
‘Tribunals’ and consists of only two Articles – covered by it.
Article 323 A dealing with administrative
The CAT is a multi-member body consisting of a
tribunals and Article 323 B dealing with
chairman and members. Originally, the CAT
tribunals for other matters.
consisted of a Chairman, Vice- Chairman and
Administrative Tribunals members.
Article 323 A empowers the Parliament to Later, in 2006, the provision for the Vice-
provide for the establishment of administrative Chairman was removed by the Administrative
tribunals for the adjudication of disputes Tribunals (Amendment) Act, 2006. Hence, there
relating to recruitment and conditions of service are now no Vice-Chairman in the CAT. At
of persons appointed to public services of the present (2019), the sanctioned strength of the
Centre, the states, local bodies, public Chairman is one and sanctioned strength of the
corporations and other public authorities. Members is 65.
In other words, Article 323 A enables the They are drawn from both judicial and
Parliament to take out the adjudication of administrative streams and are appointed by
disputes relating to service matters from the the president. They hold office for a term of five
civil courts and the high courts and place it years or until they attain the age of 65 years in
before the administrative tribunals. case of chairman and 62 years in case of
In pursuance of Article 323 A, the Parliament members, whichever is earlier.
has passed the Administrative Tribunals Act in The appointment of Members in CAT is made on
1985. The act authorises the Central the basis of recommendations of a high-
government to establish one Central powered selection committee chaired by a
administrative tribunal and the state sitting Judge of Supreme Court who is
administrative tribunals. This act opened a new nominated by the Chief Justice of India.
chapter in the sphere of providing speedy and
inexpensive justice to the aggrieved public After obtaining the concurrence of Chief Justice
servants. of India, appointments are made with the
approval of Appointments Committee of the
Central Administrative Tribunal (CAT) Cabinet (ACC).
The Central Administrative Tribunal (CAT) was
set up in 1985 with the principal bench at Delhi The CAT is not bound by the procedure laid
and additional benches in different states. At down in the Civil Procedure Code of 1908. It is
present, it has 17 regular benches, 15 of which guided by the principles of natural justice. These
operate at the principal seats of high courts and principles keep the CAT flexible in approach.
the remaining two at Jaipur and Lucknow. These Only a nominal fee of ₹50 is to be paid by the
benches also hold circuit sittings at other seats applicant. The applicant may appear either in
of high courts. person or through a lawyer.

The CAT exercises original jurisdiction in Originally, appeals against the orders of the CAT
relation to recruitment and all service matters could be made only in the Supreme Court and
of public servants covered by it. Its jurisdiction not in the high courts. However, in the Chandra
extends to the all-India services, the Central civil Kumar case (1997), the Supreme Court declared
services, civil posts under the Centre and this restriction on the jurisdiction of the high
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courts as unconstitutional, holding that judicial Tribunals for other matters

review is a part of the basic structure of the Under Article 323 B, the Parliament and the
Constitution. It laid down that appeals against state legislatures are authorised to provide for
the orders of the CAT shall lie before the division the establishment of tribunals for the
bench of the concerned high court. adjudication of disputes relating to the
Consequently, now it is not possible for an following matters:
aggrieved public servant to approach the
Supreme Court directly against an order of the (a) Taxation
CAT, without first going to the concerned high (b) Foreign exchange, import and export
court.
(c) Industrial and labour
State Administrative Tribunals
The Administrative Tribunals Act of 1985 (d) Land reforms
empowers the Central government to establish (e) Ceiling on urban property
the State Administrative Tribunals (SATs) on
specific request of the concerned state (f) Elections to Parliament and state legislatures
governments. (g) Food stuffs
So far (2019), the SATs have been set up in the (h) Rent and tenancy rights
nine states of Andhra Pradesh, Himachal
Pradesh, Odisha, Karnataka, Madhya Pradesh, Articles 323 A and 323 B differs in the following
Maharashtra, Tamil Nadu, West Bengal and three aspects:
Kerala. However, the Madhya Pradesh, Tamil
• While Article 323 A contemplates
Nadu and Himachal Pradesh Tribunals have
establishment of tribunals for public service
since been abolished.
matters only, Article 323 B contemplates
But subsequently, the Himachal Pradesh re- establishment of tribunals for certain other
established the SAT and the state of Tamil Nadu matters (mentioned above).
has also requested now to re-establish the same. • While tribunals under Article 323 A can be
Further, the state government of Haryana has established only by Parliament, tribunals
requested to establish the SAT for their state. under Article 323 B can be established both
by Parliament and state legislatures with
On the other hand, the state government of
respect to matters falling within their
Odisha has submitted a proposal for abolition of
legislative competence.
Odisha Administrative Tribunal.
• Under Article 323 A, only one tribunal for
Like the CAT, the SATs exercise original the Centre and one for each state or two or
jurisdiction in relation to recruitment and all more states may be established.
service matters of state government employees. There is no question of hierarchy of
tribunals, whereas under Article 323 B a
The chairman and members of the SATs are
hierarchy of tribunals may be created.
appointed by the president after consultation
with the governor of the state concerned. In Chandra Kumar case (1997), the Supreme
Court declared those provisions of these two
The act also makes a provision for setting up of
articles which excluded the jurisdiction of the
joint administrative tribunal (JAT) for two or
high courts and the Supreme Court as
more states. A JAT exercises all the jurisdiction
unconstitutional. Hence, the judicial remedies
and powers exercisable by the administrative
are now available against the orders of these
tribunals for such states.
tribunals.
The chairman and members of a JAT are
appointed by the president after consultation
with the governors of the concerned states.
********
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Chapter 35 – Judicial Review

The doctrine of judicial review originated and In 2015, the Supreme Court declared both the
developed in the USA. 99th Constitutional Amendment, 2014 and the
National Judicial Appointments Commission
It was propounded for the first time in the
(NJAC) Act, 2014 as unconstitutional and null
famous case of Marbury versus Madison (1803)
and void.
by John Marshall, the then chief justice of the
American Supreme Court. Importance of Judicial Review
In India, on the other hand, the Constitution Judicial review is needed for the following
itself confers the power of judicial review on the reasons:
judiciary (both the Supreme Court as well as
High Courts). • To uphold the principle of the supremacy of
the Constitution.
Further, the Supreme Court has declared the • To maintain federal equilibrium (balance
power of judicial review as a basic feature of the between the Centre and the states).
Constitution or an element of the basic structure • To protect the Fundamental Rights of the
of the Constitution. Hence, the power of judicial citizens.
review cannot be curtailed or excluded even by
a constitutional amendment. In a number of cases, the Supreme Court has
pointed out the significance of the power of
Meaning of Judicial Review
judicial review in our country. Some of the
observations made by it, in this regard, are given
Judicial review is the power of the judiciary to
below:
examine the constitutionality of legislative
enactments and executive orders of both the Chief Justice Kania in A.K. Gopalan v. State of
Central and State governments.
Madras (1950).
On examination, if they are found to be violative “In India it is the Constitution that is supreme
of the Constitution (ultra vires), they can be and that a statute law to be valid, must be in
declared as illegal, unconstitutional and invalid conformity with the constitutional
(null and void) by the judiciary. Consequently,
requirements and it is for the judiciary to decide
they cannot be enforced by the Government. whether any enactment is constitutional or not”.
Justice Syed Shah Mohammed Quadri has Chief Justice Patanjali Shastri in State of Madras
classified the judicial review into the following v. V.G. Row (1952).
three categories:
“Our constitution contains express provisions
• Judicial review of constitutional for judicial review of legislation as to its
amendments. conformity with the constitution. This is
• Judicial review of legislation of the especially true as regards the Fundamental
Parliament and State Legislatures and Rights, to which the court has been assigned the
subordinate legislations. role of sentinel on the qui vive”.
• Judicial review of administrative action of
the Union and State and authorities under Justice Khanna in Kesavananda Bharati v. State
the state. of Kerala (1973).

The Supreme Court used the power of judicial “As long as some Fundamental Rights exist and
review in various cases, as for example, the are a part of the Constitution, the power of
Golaknath case (1967), the Bank Nationalisation judicial review has also to be exercised with a
case (1970), the Privy Purses Abolition case view to see that the guarantees afforded by
(1971), the Kesavananda Bharati case (1973), these Rights are not contravened”.
the Minerva Mills case (1980), and so on.
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Justice Bhagwati in Rajasthan v. Union of India “The founding fathers very wisely, therefore,
(1977). incorporated in the Constitution itself the
provisions of judicial review so as to maintain
“The Constitution is supreme lex, the permanent the balance of federalism, to protect the
law of the land, and there is no branch of Fundamental Rights and Fundamental
government above it. Every organ of Freedoms guaranteed to the citizens and to
government, be it the executive or the afford a useful weapon for availability,
legislature or the judiciary, derives its authority availment and enjoyment of equality, liberty
from the Constitution and it has to act within the and Fundamental Freedoms and to help to
limits of its authority. create a healthy nationalism. The function of
judicial review is a part of the constitutional
No one however highly placed and no authority interpretation itself. It adjusts the Constitution
howsoever lofty, can claim that it shall be the to meet new conditions and needs of the time”.
sole judge of the extent of its power under the
Constitution or whether its action is within the Constitutional Provisions for Judicial
confines of such power laid down by the Review
constitution.
Though the phrase ‘Judicial Review’ has
Thus, Court is the ultimate interpreter of the nowhere been used in the Constitution, the
Constitution and to the Court is assigned the provisions of several Articles explicitly confer
delicate task of determining what is the power the power of judicial review on the Supreme
conferred on each branch of government, Court and the High Courts. These provisions are
whether it is limited, and if so, what are the explained below:
limits and whether any action of that branch
transgresses such limits”. • Article 13 declares that all laws that are
inconsistent with or in derogation of the
Chief Justice Chandrachud in Minerva Mills v. Fundamental Rights shall be null and void.
Union of India (1980).
• Article 32 guarantees the right to move the
“It is the function of the Judges, may their duty, Supreme Court for the enforcement of the
to pronounce upon the validity of laws. If courts Fundamental Rights and empowers the
are totally deprived of that power, the Supreme Court to issue directions or orders
Fundamental Rights conferred on the people or writs for that purpose.
will become a mere adornment because rights • Article 131 provides for the original
without remedies are as writ in water. A jurisdiction of the Supreme Court in centre-
controlled Constitution will then become state and inter-state disputes.
uncontrolled”. • Article 132 provides for the appellate
jurisdiction of the Supreme Court in
Chief Justice Ahmadi in L. Chandra Kumar v. constitutional cases.
Union of India (1997). • Article 133 provides for the appellate
jurisdiction of the Supreme Court in civil
“The judges of the Supreme Court have been cases.
entrusted with the task of upholding the • Article 134 provides for the appellate
Constitution and to this end, have been jurisdiction of the Supreme Court in criminal
conferred the power to interpret it. It is they cases.
who have to ensure that the balance of power • Article 134-A deals with the certificate for
envisaged by the Constitution is maintained and appeal to the Supreme Court from the High
that the legislature and the executive do not, in Courts.
the discharge of their functions, transgress • Article 135 empowers the Supreme Court
constitutional limitations”. to exercise the jurisdiction and powers of
the Federal Court under any pre-
Justice Ramaswami in S.S. Bola v. B.D. Sharma constitution law.
(1997). • Article 136 authorises the Supreme Court
to grant special leave to appeal from any

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court or tribunal (except military tribunal The difference between the two is: “The due
and court martial). process of law gives wide scope to the Supreme
• Article 143 authorises the President to seek Court to grant protection to the rights of its
the opinion of the Supreme Court on any citizens. It can declare laws violative of these
question of law or fact and on any pre- rights void not only on substantive grounds of
constitution legal matters. being unlawful, but also on procedural grounds
• Article 226 empowers the High Courts to of being unreasonable.
issue directions or orders or writs for the
enforcement of the Fundamental Rights and Our Supreme Court, while determining the
for any other purpose. constitutionality of a law, however examines
• Article 227 vests in the High Courts the only the substantive question i.e., whether the
power of superintendence over all courts law is within the powers of the authority
and tribunals within their respective concerned or not. It is not expected to go into the
territorial jurisdictions (except military question of its reasonableness, suitability or
courts or tribunals). policy implications”.
• Article 245 deals with the territorial extent
The exercise of wide power of judicial review by
of laws made by Parliament and by the
the American Supreme Court in the name of ‘due
Legislatures of States.
process of law’ clause has made the critics to
• Article 246 deals with the subject matter of
describe it as a ‘third chamber’ of the
laws made by Parliament and by the
Legislature, a super-legislature, the arbiter of
Legislatures of States (i.e., Union List, State
social policy and so on.
List and Concurrent List).
• Articles 251 and 254 provide that in case of This American principle of judicial supremacy is
a conflict between the central law and state also recognised in our constitutional system, but
law, the central law prevails over the state to a limited extent.
law and the state law shall be void.
• Article 372 deals with the continuance in Nor do we fully follow the British Principle of
force of the pre-constitution laws. parliamentary supremacy. There are many
limitations on the sovereignty of Parliament in
Scope of Judicial Review our country, like the written character of the
Constitution, the federalism with division of
The constitutional validity of a legislative powers, the Fundamental Rights and the judicial
enactment or an executive order can be review.
challenged in the Supreme Court or in the High
Courts on the following three grounds. In effect, what exists in India is a synthesis of
both, that is, the American principle of judicial
• it infringes the Fundamental Rights (Part supremacy and the British principle of
III), parliamentary supremacy.
• it is outside the competence of the authority
which has framed it, and Judicial Review of the Ninth Schedule
• it is repugnant to the constitutional
provisions. Article 31B saves the acts and regulations
included in the Ninth Schedule from being
From the above, it is clear that the scope of challenged and invalidated on the ground of
judicial review in India is narrower than what contravention of any of the Fundamental Rights.
exists in the USA, though the American
Constitution does not explicitly mention the Article 31B along with the Ninth Schedule was
concept of judicial review in any of its added by the 1st Constitutional Amendment Act
provisions. of 1951.

This is because, the American Constitution Originally (in 1951), the Ninth Schedule
provides for ‘due process of law’ against that of contained only 13 acts and regulations but at
‘procedure established by law’ which is present (in 2016) their number is 282.
contained in the Indian Constitution.

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Of these, the acts and regulations of the state It said that the laws placed under the Ninth
legislature deal with land reforms and abolition Schedule after April 24, 1973, are open to
of the zamindari system and that of the challenge in court if they violated Fundamental
Parliament deal with other matters. Rights guaranteed under the Articles 14, 15, 19
and 21 or the ‘basic structure’ of the
However, in a significant judgement delivered in Constitution.
I.R. Coelho case (2007), the Supreme Court
ruled that there could not be any blanket It was on April 24, 1973, that the Supreme Court
immunity from judicial review of laws included first propounded the doctrine of ‘basic
in the Ninth Schedule. structure’ or ‘basic features’ of the constitution
in its landmark verdict in the Kesavananda
The court held that judicial review is a ‘basic Bharati case.
feature’ of the constitution and it could not be
taken away by putting a law under the Ninth
Schedule.

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Chapter 36 – Judicial Activism

The concept of judicial activism originated and • “Judicial activism can be defined as the
developed in the USA. This term was first coined process of law-making by judges. It means
in 1947 by Arthur Schlesinger Jr., an American an active interpretation of existing
historian and educator. legislation by a judge, made with a view to
enhance the utility of that legislation for
In India, the doctrine of judicial activism was social betterment. Judicial activism is
introduced in mid-1970s. different from judicial pessimism which
means interpretation of existing provisions
Justice V.R. Krishna Iyer, Justice P.N. Bhagwati, of law, without an attempt to enhance its
Justice O. Chinnappa Reddy and Justice D.A. beneficial aspects”.
Desai laid the foundations of judicial activism in • “Judicial activism is a philosophy of judicial
the country. decision-making whereby judges allow their
Meaning of Judicial Activism personal views about public policy, among
other factors, to guide their decisions”.
Judicial activism denotes the proactive role • “Judicial activism is a procedure to evolve
played by the judiciary in the protection of the new principles, concepts, maxims, formulae
rights of citizens and in the promotion of justice and relief to do justice or to expand the
in the society. standing of the litigant and open the door of
courts for needy or to entertain litigation
In other words, it implies the assertive role affecting the entire society or a section of it”.
played by the judiciary to force the other two
organs of the government (legislature and The concept of judicial activism is closely
executive) to discharge their constitutional related to the concept of Public Interest
duties. Litigation (PIL). It is the judicial activism of the
Supreme Court which is the major factor for the
Judicial activism is also known as “judicial rise of PIL.
dynamism”. It is the antithesis of “judicial
restraint”, which means the self-control In other words, PIL is an outcome of judicial
exercised by the judiciary. activism. In fact, PIL is the most popular form
(or manifestation) of judicial activism.
Judicial activism is defined in the following way:
Judicial Review and Judicial Activism
• “Judicial activism is a way of exercising
judicial power that motivates judges to The concepts of judicial review and judicial
depart from normally practised strict activism are closely related to each other. But,
adherence to judicial precedent in favour of there is a difference between them. The
progressive and new social policies. It is following points bring out this difference:
commonly marked by decision calling for
social engineering, and occasionally these • Since about the mid-20th century, a version
decisions represent intrusion in the of judicial review has acquired the nick-
legislative and executive matters”. name of judicial activism, especially in the
USA. In India, the participants in the debate
• “Judicial activism is the practice in the
mix up judicial activism with judicial review.
judiciary of protecting or expanding
The former is that form of latter in which
individual rights through decisions that
judges participate in law-making policies,
depart from established precedent, or are
i.e., not only they uphold or invalidate laws
independent of, or in opposition to supposed
in terms of constitutional provisions, but
constitutional or legislation intent”.
also exercise their policy preferences in
doing so.
• The concept of judicial activism is inherent
in judicial review, which empowers the
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court to uphold the constitution and declare judicial legislation and to meet the changing
the laws and action inconsistent with the social needs.
constitution as void. Judicial activism is • The Constitution of India has itself adopted
necessary for ensuring proper discharge of certain provisions, which gives judiciary
duties by other organs. enough scope to legislate or to play an active
• The term “judicial activism” came into role.
currency some time in the twentieth century
to describe the act of judicial legislation i.e., Similarly, Subhash Kashyap observes that
judges making positive law. However, there certain eventualities may be conceived when
is no standard definition of the term “judicial the judiciary may have to overstep its normal
activism”. As a whole it can be said that jurisdiction and intervene in areas otherwise
judicial activism stresses the importance of falling within the domain of the legislature and
judicial review and a powerful judiciary in the executive:
the protection and promotion of certain core
rights. • When the legislature fails to discharge its
• The expanded concept of locus standi in responsibilities.
connection with PIL, by judicial • In case of a ‘hung’ legislature when the
interpretation from time-to-time, has government it provides is weak, insecure
expanded the jurisdictional limits of the and busy only in the struggle for survival
courts exercising judicial review. This and, therefore, unable to take any decision
expanded role has been given the title of which displeases any caste, community, or
“judicial activism” by those who are critical other group.
of this expanded role of the judiciary. • Those in power may be afraid of taking
• Judicial activism, as regards constitutional honest and hard decisions for fear of losing
cases, falls under the rubric of what is power and, for that reason, may have public
commonly called judicial review, and at the issues referred to courts as issues of law in
broadest level, it is any occasion where a order to mark time and delay decisions or to
court intervenes and strikes down a piece of pass on the odium of strong decision-making
duly enacted legislation. to the courts.
• Where the legislature and the executive fail
Justification of Judicial Activism to protect the basic rights of citizens, like the
right to live a decent life, healthy
According to Dr. B.L. Wadehra, the reasons for surroundings, or to provide honest, efficient
judicial activism are as follows: and just system of laws and administration.
• Where the court of law is misused by a
• There is near collapse of the responsible strong authoritarian parliamentary party
government, when the Legislature and government for ulterior motives, as was
Executive fail to discharge their respective sought to be done during the emergency
functions. This results in erosion of the aberration.
confidence in the Constitution and • Sometimes, the courts themselves
democracy amongst the citizens. knowingly or unknowingly become victims
• The citizens of the country look up to the of human, all too human, weaknesses of
judiciary for the protection of their rights craze for populism, publicity, playing to the
and freedoms. This leads to tremendous media and hogging the headlines.
pressure on judiciary to step in aid for the
suffering masses. Activators of Judicial Activism
• Judicial Enthusiasm, that is, the judges like to
participate in the social reforms that take Upendra Baxi, an eminent jurist, has delineated
place in the changing times. It encourages the following typology of social / human rights
the Public Interest Litigation and liberalises activists who activated judicial activism:
the principle of ‘Locus Standi’.
• Legislative Vacuum, that is, there may be • Civil Rights Activists: These groups
certain areas, which have not been legislated primarily focus on civil and political rights
upon. It is therefore, upon court to indulge in issues.

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• People Rights Activists: These groups • Bar-based Groups: These associations

focus on social and economic rights within agitate for issues concerning autonomy and
the contexts of state repression of people’s accountability of the Indian judiciary.
movements.
• Media Autonomy Groups: These groups
• Consumer Rights Groups: These focus on the autonomy and accountability of
formations raise issues of consumer rights the press and instruments of mass media
within the framework of accountability of owned by the State.
the polity and the economy.
• Assorted Lawyer-Based Groups: This
• Bonded Labour Groups: These groups ask category includes the critically influential
for judicial activism is nothing short of lawyers’ groups which agitate for various
annihilation of wage slavery in India. causes.

• Citizens for Environmental Action: These • Assorted Individual Petitioners: This

groups activate an activist judiciary to category includes freelance activist
combat increasing environmental individuals.
degradation and pollution.
Judicial Activism vs. Judicial Restraint
• Citizen Groups against Large Irrigation Meaning of Judicial Restraint
Projects: These activist formations ask the
Indian judiciary the impossible for any Judicial activism and judicial restraint are the
judiciary in the world, namely, cease to and two alternative judicial philosophies in the
desist from ordering against mega irrigation United States.
projects.
Those who subscribe to judicial restraint
contend that the role of judges should be
• Rights of Child Groups: These groups focus
scrupulously limited; their job is merely to say
on child labour, the right to literacy,
what the law is, leaving the business of law-
juveniles in custodial institutions and rights
making where it properly belongs, that is, with
of children born to sex workers.
the legislators and the executives.
• Custodial Rights Groups: These groups Under no circumstances, moreover, should
include social action by prisoners’ rights judges allow their personal political values and
groups, women under state ‘protective’ policy agendas to colour their judicial opinions.
custody and persons under preventive
detention. This view holds that the ‘original intent’ of the
authors of the constitution and its amendments
• Poverty Rights Groups: These groups is knowable, and must guide the courts.
litigate issues concerning draught and
Supreme Court Observations
famine relief and urban impoverished.
While delivering a judgement in December
• Indigenous People’s Rights Groups: These 2007, the Supreme Court of India called for
groups agitate for issues of forest dwellers, judicial restraint and asked courts not to take
citizens of the Fifth and Sixth Schedules of over the functions of the legislature or the
the Indian Constitution and identity rights. executive, saying there is a broad separation of
powers under the Constitution and each organ
• Women’s Rights Groups: These groups of the state must have respect for others and
agitate for issues of gender equality, gender- should not encroach on others’ domain. In this
based violence and harassment, rape and context, the concerned Bench of the court made
dowry murders. the following observations:

• The Bench said, “We are repeatedly coming

across cases where judges are unjustifiably
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trying to perform executive or legislative jobs properly. Even assuming this is so, the
functions. This is clearly unconstitutional. In same allegations can be made against the
the name of judicial activism, judges cannot judiciary too because there are cases
cross their limits and try to take over pending in courts for half-a-century.”
functions which belong to another organ of • If the legislature or the executive was not
the state”. functioning properly, it was for the people to
• The Bench said, “Judges must know their correct the defects by exercising their
limits and must not try to run the franchise properly in the next elections and
government. They must have modesty and voting for candidates who would fulfil their
humility, and not behave like emperors.” expectations or by other lawful methods,
• Quoting from the book ‘The Spirit of Laws’ e.g., peaceful demonstrations.
by Montesquieu on the consequences of not • “The remedy is not in the judiciary taking
maintaining separation of powers among over the legislative or the executive
the three organs, the Bench said the French functions, because that will not only violate
political philosopher’s “warning is the delicate balance of power enshrined in
particularly apt and timely for the Indian the Constitution but also (because) the
judiciary today, since very often it is rightly judiciary has neither the expertise nor the
criticised for ‘overreach’ and encroachment resources to perform these functions.”
on the domain of the other two organs.” • The Bench said: “Judicial restraint is
• Judicial activism must not become judicial consistent with and complementary to the
adventurism, the Bench warned the courts balance of power among the three
Adjudication must be done within the independent branches of the state. It
system of historically validated restraints accomplishes this in two ways: first, judicial
and conscious minimisation of judges’ restraint not only recognises the equality of
preferences. the other two branches with the judiciary, it
• “The courts must not embarrass also fosters that equality by minimising
administrative authorities and must realise inter-branch interference by the judiciary.
that administrative authorities have Second, judicial restraint tends to protect
expertise in the field of administration while the independence of the judiciary. When
the court does not.” courts encroach on the legislative or
• The Bench said, “The justification often administrative fields almost inevitably
given for judicial encroachment on the voters, legislators, and other elected officials
domain of the executive or the legislature is will conclude that the activities of judges
that the other two organs are not doing their should be closely monitored.

********

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Chapter 37 – Public Interest Litigation (PIL)

The concept of Public Interest Litigation (PIL) interest by which their legal rights or liabilities
originated and developed in the USA in the are affected.”
1960s.
PIL is absolutely necessary for maintaining the
In the USA, it was designed to provide legal rule of law, furthering the cause of justice and
representation to previously unrepresented accelerating the pace of realisation of the
groups and interests. It was undertaken in constitutional objectives.
recognition of the fact that the ordinary
In other words, the real purposes of PIL are:
marketplace for legal services fails to provide
such services to significant segments of the • vindication of the rule of law,
population and to significant interests. Such • facilitating effective access to justice to the
groups and interests include the poor, socially and economically weaker sections of
environmentalists, consumers, racial and ethnic the society, and
minorities, and others. • meaningful realisation of the fundamental
In India, the PIL is a product of the judicial rights.
activism role of the Supreme Court. It was Features of PIL
introduced in the early 1980s. Justice V.R. The various features of the PIL are explained
Krishna Iyer and Justice P.N. Bhagwati were the below:
pioneers of the concept of PIL.
• PIL is a strategic arm of the legal aid
PIL is also known variously as Social Action movement and is intended to bring justice
Litigation (SAL), Social Interest Litigation (SIL) within the reach of the poor masses, who
and Class Action Litigation (CAL).
constitute the low visibility area of
Meaning of PIL humanity.
The introduction of PIL in India was facilitated • PIL is a totally different kind of litigation
by the relaxation of the traditional rule of ‘locus from the ordinary traditional litigation
standi’. According to this rule, only that person which is essentially of an adversary
whose rights are infringed alone can move the character where there is a dispute between
court for the remedies, whereas, the PIL is an two litigating parties, one making claims
exception to this traditional rule. seeking relief against the other and that
other opposing such claim or resisting such
Under the PIL, any public-spirited citizen or a relief.
social organisation can move the court for the • PIL is brought before the Court not for the
enforcement of the rights of any person or group purpose of enforcing the right of one
of persons who because of their poverty or individual against another as happens in the
ignorance or socially or economically case of ordinary litigation, but it is intended
disadvantaged position are themselves unable to promote and vindicate public interest.
to approach the court for the remedies. Thus, in • PIL demands that violations of
a PIL, any member of the public having constitutional and legal rights of large
‘sufficient interest’ can approach the court for numbers of people who are poor, ignorant or
enforcing the rights of other persons and in a socially or economically disadvantaged
redressal of a common grievance. position should not go unnoticed and
The Supreme Court has defined the PIL as “a unredressed.
legal action initiated in a court of law for the • PIL is essentially a co-operative effort on the
enforcement of public interest or general part of the petitioner, the State or Public
interest in which the public or a class of the Authority, and the Court to secure
community have pecuniary interest or some observance of the constitutional or legal
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rights, benefits and privileges conferred 7. Petitions complaining of harassment or

upon the vulnerable sections of the torture of villagers by co-villagers or by
community and to reach social justice to police from persons belonging to Scheduled
them. Caste and Scheduled Tribes and
• In PIL, litigation is undertaken for the economically backward classes
purpose of redressing public injury, 8. Petitions pertaining to environmental
enforcing public duty, protecting social, pollution, disturbance of ecological balance,
collective, diffused rights and interests or drugs, food adulteration, maintenance of
vindicating public interest. heritage and culture, antiques, forest and
• In PIL, the role held by the Court is more wild life and other matters of public
assertive than in traditional actions; it is importance
creative rather than passive and it assumes 9. Petitions from riot-victims
a more positive attitude in determining acts. 10. Family pension
• Though in PIL court enjoys a degree of
The cases falling under the following categories
flexibility unknown to the trial of traditional will not be entertained as PIL:
private law litigations, whatever the
procedure adopted by the court it must be 1. Landlord-tenant matters
procedure known to judicial tenets and 2. Service matter and those pertaining to
characteristics of a judicial proceeding. pension and gratuity
• In a PIL, unlike traditional dispute resolution 3. Complaints against Central/ State
mechanism, there is no determination on Government departments and Local Bodies
adjudication of individual rights. except those relating to item numbers (1) to
(10) above
Scope of PIL 4. Admission to medical and other educational
In 1998, the Supreme Court formulated a set of institution
guidelines to be followed for entertaining letters 5. Petitions for early hearing of cases pending
or petitions received by it as PIL. in High Courts and Subordinate Courts
According to them, the letters or petitions falling Principles of PIL
under the following categories alone will The Supreme Court evolved the following
ordinarily be entertained as PIL: principles in regard to PIL:
1. Bonded labour matters • The Court in exercise of powers under
2. Neglected children Articles 32 and 226 of the Constitution can
3. Non-payment of minimum wages to workers entertain a petition filed by any interested
and exploitation of casual workers and person in the welfare of the people who are
complaints of violation of Labour Laws in a disadvantaged position and thus not in a
(except in individual cases) position to knock the doors of the Court. The
4. Petitions from jails complaining of Court is constitutionally bound to protect
harassment, for premature release and the Fundamental Rights of such
seeking release after having completed 14 disadvantaged people and direct the State to
years in jail, death in jail, transfer, release on fulfil its constitutional promises.
personal bond, speedy trial as a fundamental
• When the issues of public importance,
right
enforcement of the fundamental rights of
5. Petitions against police for refusing to
large number of people vis-a-vis the
register a case, harassment by police and
constitutional duties and functions of the
death in police custody
State are raised, the court treat a letter or a
6. Petitions against atrocities on women, in
telegram as a PIL. In such cases, the court
particular harassment of bride, bride-
relaxes the procedural laws and also the law
burning, rape, murder, kidnapping, etc.
relating to pleadings.

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• Whenever injustice is meted out to a large Court although may pass an order for doing
number of people, the court will not hesitate complete justice to the parties, it does not
to step in to invoke Articles 14 and 21 of the have a power akin to Article 142 of the
Constitution of India as well as the Constitution of India.
International Conventions on Human Rights • Ordinarily the High Court should not
which provide for a reasonable and fair trial. entertain a writ petition by way of PIL
• The common rule of locus standi is relaxed questioning constitutionality or validity of a
so as to enable the court to look into the statute or a statutory rule.
grievances complained on behalf of the poor,
deprived, illiterate and the disabled who Guidelines for admitting PIL
cannot vindicate the legal wrong or legal The PIL has now come to occupy an important
injury caused to them for violation of any field in the administration of law. It should not
constitutional or legal right. be allowed to become ‘Publicity Interest
• When the Court is prima facie satisfied about Litigation’ or ‘Politics Interest Litigation’ or
‘Private Interest
violation of any constitutional right of a
group of people belonging to the Litigation’ or ‘Paisa Interest Litigation’ or
disadvantaged category, it may not allow the ‘Middle-class Interest Litigation’ (MIL).
State or the Government from raising the
question as to the maintainability of the The Supreme Court, in this context, observed:
petition. “PIL is not a pill or a panacea for all wrongs. It
• Although procedural laws apply on PIL was essentially meant to protect basic human
cases, the question as to whether the rights of the weak and the disadvantaged and
principles of res judicata or principles was a procedure which was innovated where a
analogous thereto would apply depend on public-spirited person files a petition in effect
the nature of the petition and also facts and on behalf of such persons who on account of
circumstances of the case. poverty, helplessness or economic and social
disabilities could not approach the court for
• The dispute between two warring groups
relief. There have been, in recent times
purely in the realm of private law would not
increasingly instances of abuse of PIL.
be allowed to be agitated as a PIL.
Therefore, there is a need to re-emphasise the
• However, in an appropriate case, although
parameters within which PIL can be resorted to
the petitioner might have moved a Court in
by a petitioner and entertained by the court.”
his private interest and for redressal of the
personal grievances, the Court in Therefore, the Supreme Court laid down the
furtherance of the public interest may treat following guidelines for checking the misuse of
it necessary to enquire into the state of the PIL:
affairs of the subject of litigation in the
interest of justice. • The court must encourage genuine and bona
fide PIL and effectively discourage and curb
• The Court in special situations may appoint
the PIL field for extraneous considerations.
Commission or other bodies for the purpose
of investigating into the allegations and • Instead of every individual Judge devising
finding out facts. It may also direct his own procedure for dealing with PIL, it
management of a public institution taken would be appropriate for each High Court to
over by such Commission. properly formulate rules for encouraging
the genuine PIL filed and discouraging PIL
• The Court will not ordinarily transgress into
filed with oblique motives.
a policy. It shall also take utmost care not to
transgress its jurisdiction while purporting • The Court should prima facie verify the
to protect the rights of the people from being credentials of the petitioner before
violated. entertaining the PIL.
• The Court would ordinarily not step out of
the known areas of judicial review. The High
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• The Court shall be prima facie satisfied genuine public harm and public injury. The
regarding the correctness of the contents of Court should also ensure that there is no
petition before entertaining the PIL. personal gain, private motive or oblique
• The Court should be fully satisfied that motive behind filing PIL.
substantial public interest is involved before • The Court should also ensure that the
entertaining the petition. petition filed by busy-bodies for extraneous
• The Court should ensure that the petition and ulterior motives must be discouraged by
which involves larger public interest, gravity imposing exemplary costs or adopting
and urgency must be given priority over similar novel methods to curb frivolous
other petitions. petitions and the petitions filed for
• The Court before entertaining the PIL must extraneous considerations.
ensure that the PIL is aimed at redressal of
********

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Chapter 38 – Panchayati Raj

The term Panchayati Raj in India signifies the • There should be a genuine transfer of power
system of rural local self-government. and responsibility to these democratic
bodies.
It has been established in all the states of India
• Adequate resources should be transferred to
by the Acts of the state legislatures to build
these bodies to enable them to discharge
democracy at the grass root level. It is entrusted
their functions and fulfil their
with rural development.
responsibilities.
It was constitutionalised through the 73rd • A system should be evolved to effect further
Constitutional Amendment Act of 1992. devolution of authority in future.

Evolution of Panchayati Raj These recommendations of the committee were

Balwant Rai Mehta Committee accepted by the National Development Council
In January 1957, the Government of India in January 1958.
appointed a committee to examine the working The council did not insist on a single rigid
of the Community Development Programme pattern and left it to the states to evolve their
(1952) and the National Extension Service own patterns suitable to local conditions.
(1953) and to suggest measures for their better
working. But the basic principles and broad fundamentals
should be identical throughout the country.
The chairman of this committee was Balwant
Rai G Mehta. The committee submitted its Rajasthan was the first state to establish
report in November 1957 and recommended Panchayati Raj. The scheme was inaugurated by
the establishment of the scheme of ‘democratic the prime minister on October 2, 1959, in
decentralisation’, which ultimately came to be Nagaur district.
known as Panchayati Raj. Rajasthan was followed by Andhra Pradesh,
The specific recommendations made by it are: which also adopted the system in 1959.
Thereafter, most of the states adopted the
• Establishment of a three-tier panchayati raj system.
system–gram panchayat at the village level,
panchayat samiti at the block level and zila Though most of the states created panchayati
parishad at the district level. These tiers raj institutions by mid 1960s, there were
should be organically linked through a differences from one state to another with
device of indirect elections. regard to the number of tiers, relative position
• The village panchayat should be constituted of samiti and parishad, their tenure,
with directly elected representatives, composition, functions, finances and so on.
whereas the panchayat samiti and zila For example, Rajasthan adopted the three-tier
parishad should be constituted with system while Tamil Nadu adopted the two-tier
indirectly elected members. system. West Bengal, on the other hand,
• All planning and development activities adopted the four-tier system.
should be entrusted to these bodies.
• The panchayat samiti should be the Further, in the Rajasthan-Andhra Pradesh
executive body while the zila parishad pattern, panchayat samiti was powerful as the
should be the advisory, coordinating and block was the unit of planning and development,
supervisory body. while in Maharashtra-Gujarat pattern, zila
• The district collector should be the chairman parishad was powerful as the district was the
of the zila parishad. unit of planning and development.

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Some states also established nyaya panchayats, that is, zila parishad at the district level, and
that is, judicial panchayats to try petty civil and below it, the mandal panchayat consisting of
criminal cases. a group of villages with a total population of
15,000 to 20,000.
Study Teams and Committees
• A district should be the first point for
Since 1960, many study teams, committees and decentralisation under popular supervision
working groups have been appointed to below the state level.
examine the various aspects of functioning of • Zila parishad should be the executive body
Panchayati Raj system. They are mentioned and made responsible for planning at the
below. district level.
• There should be an official participation of
political parties at all levels of panchayat
elections.
• The panchayati raj institutions should have
compulsory powers of taxation to mobilise
their own financial resources.
• There should be a regular social audit by a
district level agency and by a committee of
legislators to check whether the funds
allotted for the vulnerable social and
economic groups are actually spent on them.
• The state government should not supersede
the panchayati raj institutions. In case of an
imperative supersession, elections should
be held within six months from the date of
supersession.
• The nyaya panchayats should be kept as
separate bodies from that of development
panchayats. They should be presided over
by a qualified judge.
• The chief electoral officer of a state in
consultation with the chief election
commissioner should organise and conduct
the panchayati raj elections.
• Development functions should be
transferred to the zila parishad and all
development staff should work under its
control and supervision.
Ashok Mehta Committee • The voluntary agencies should play an
In December 1977, the Janata Government important role in mobilising the support of
appointed a committee on panchayati raj the people for panchayati raj.
institutions under the chairmanship of Ashok • A minister for panchayati raj should be
Mehta. appointed in the state council of ministers to
look after the affairs of the panchayati raj
It submitted its report in August 1978 and made institutions.
132 recommendations to revive and strengthen
• Seats for SCs and STs should be reserved on
the declining panchayati raj system in the
the basis of their population.
country. Its main recommendations were:
• A constitutional recognition should be
• The three-tier system of panchayati raj accorded to the Panchayati Raj institutions.
should be replaced by the two-tier system, This would give them the requisite status
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(sanctity and stature) and an assurance of level planning units for effective
continuous functioning. decentralized district planning.
• A post of District Development
Due to the collapse of the Janata Government
Commissioner should be created. He should
before the completion of its term, no action
act as the chief executive officer of the Zila
could be taken on the recommendations of the
Parishad and should be in charge of all the
Ashok Mehta Committee at the central level.
development departments at the district
However, the three states of Karnataka, West level.
Bengal and Andhra Pradesh took steps to • Elections to the Panchayati Raj institutions
revitalise the panchayati raj, keeping in view should be held regularly. It found that
some of the recommendations of the Ashok elections became overdue for one or more
Mehta Committee. tiers in 11 states.
G.V.K. Rao Committee Thus, the committee, in its scheme of
The Committee to review the existing decentralised system of field administration,
Administrative Arrangements for Rural assigned a leading role to the Panchayati Raj in
Development and Poverty Alleviation local planning and development.
Programmes under the chairmanship of G.V.K.
L M Singhvi Committee
Rao was appointed by the Planning Commission
In 1986, Rajiv Gandhi government appointed a
in 1985.
committee to prepare a concept paper on
The Committee came to conclusion that the ‘Revitalisation of Panchayati Raj Institutions for
developmental process was gradually Democracy and Development’ under the
bureaucratised and divorced from the chairmanship of L.M. Singhvi. It made the
Panchayati Raj. following recommendations.
This phenomena of bureaucratisation of • The Panchayati Raj institutions should be
development administration as against the constitutionally recognised, protected and
democratisation weakened the Panchayati Raj preserved. For this purpose, a new chapter
institutions resulting in what is aptly called as should be added in the Constitution of India.
‘grass without roots’. This will make their identity and integrity
reasonably and substantially inviolate. It
Hence, the Committee made the following
also suggested constitutional provisions to
recommendations to strengthen and revitalise
ensure regular, free and fair elections to the
the Panchayati Raj system:
Panchayati Raj bodies.
• The district level body, that is, the Zila • Nyaya Panchayats should be established for
Parishad should be of pivotal importance in a cluster of villages.
the scheme of democratic decentralisation. • The villages should be reorganised to make
It stated that “the district is the proper unit Gram Panchayats more viable. It also
for planning and development and the Zila emphasised the importance of the Gram
Parishad should become the principal body Sabha and called it as the embodiment of
for management of all development direct democracy.
programmes which can be handled at that • The Village Panchayats should have more
level.” financial resources.
• The Panchayati Raj institutions at the • The judicial tribunals should be established
district and lower levels should be assigned in each state to adjudicate controversies
an important role with respect to planning, about election to the Panchayati Raj
implementation and monitoring of rural institutions, their dissolution and other
development programmes. matters related to their functioning.
• Some of the planning functions at the state
level should be transferred to the district

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Thungon Committee • A constitutional status should be bestowed

In 1988, a sub-committee of the Consultative on the Panchayati Raj institutions.
Committee of Parliament was constituted under • A three-tier system of Panchayati Raj with
the chairmanship of P.K. Thungon to examine panchayats at the village, block and district
the political and administrative structure in the levels.
district for the purpose of district planning. • The term of Panchayati Raj institutions
should be fixed at five years.
This committee suggested for the strengthening
of the Panchayati Raj system. It made the • The members of the Panchayats at all the
following recommendations: three levels should be directly elected.
• Reservation for SCs, STs and women.
• The Panchayati Raj bodies should be • The Panchayati Raj bodies should have the
constitutionally recognized. responsibility of preparation and
• A three-tier system of Panchayati Raj with implementation of plans for socio-economic
panchayats at the village, block and district development. For this purpose, a list of
levels. subjects should be specified in the
• Zilla Parishad should be the pivot of the constitution.
Panchayati Raj system. It should act as the • The Panchayat Raj bodies should be
planning and development agency in the empowered to levy, collect and appropriate
district. taxes and duties.
• The Panchayati Raj bodies should have a • Establishment of a State Finance
fixed tenure of five years. Commission for the allocation of finances to
• The maximum period of super session of a the Panchayats.
body should be six months. • Establishment of a State Election
• A planning and co-ordination committee Commission for the conduction of elections
should be set-up at the state level under the to the panchayats.
chairmanship of the minister for planning.
The above recommendations of the Gadgil
The presidents of Zilla Parishads should be
Committee became the basis for drafting an
its members.
amendment bill aimed at conferring the
• A detailed list of subjects for Panchayati Raj
constitutional status and protection to the
should be prepared and incorporated in the
Panchayati Raj institutions.
Constitution.
• Reservation of seats in all the three-tiers Constitutionalisation
should be on the basis of population. There Rajiv Gandhi Government
should also be reservation for women. The Rajiv Gandhi Government introduced the
• A state finance commission should be set-up 64th Constitutional Amendment Bill in the Lok
in each state. It would lay down the criteria Sabha in July 1989 to constitutionalise
and guidelines for the devolution of finances panchayati raj institutions and make them more
to the Panchayati Raj institutions. powerful and broad based. Although, the Lok
• The district collector should be the chief Sabha passed the bill in August 1989, it was not
executive officer of the Zilla Parishad. approved by the Rajya Sabha. The bill was
Gadgil Committee vehemently opposed by the Opposition on the
The Committee on Policy and Programmes was ground that it sought to strengthen
constituted in 1988 by the Congress party under centralisation in the federal system.
the chairmanship of V.N. Gadgil. V.P. Singh Government
This committee was asked to consider the The National Front Government, soon after
question of “how best Panchayati Raj assuming office in November 1989 under the
institutions could be made effective”. In this Prime Ministership of V.P. Singh, announced
context, the committee made the following that it would take steps to strengthen the
recommendations: panchayati raj institutions.
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In June 1990, a two-day conference of the state In other words, the state governments are under
chief ministers under the chairmanship of V.P. constitutional obligation to adopt the new
Singh was held to discuss the issues relating to panchayati raj system in accordance with the
the strengthening of the panchayati raj bodies. provisions of the act. Consequently, neither the
formation of panchayats nor the holding of
The conference approved the proposals for the
elections at regular intervals depend on the will
introduction of a fresh constitutional
of the state government any more.
amendment bill. Consequently, a constitutional
amendment bill was introduced in the Lok The provisions of the act can be grouped into
Sabha in September 1990. two categories– compulsory and voluntary. The
compulsory (mandatory or obligatory)
However, the fall of the government resulted in
provisions of the act have to be included in the
the lapse of the bill.
state laws creating the new panchayati raj
Narasimha Rao Government system. The voluntary provisions, on the other
The Congress Government under the prime hand, may be included at the discretion of the
ministership of P.V. Narasimha Rao once again states.
considered the matter of the
Thus the voluntary provisions of the act ensures
constitutionalisation of panchayati raj bodies. It
the right of the states to take local factors like
drastically modified the proposals in this regard
geographical, politico-administrative and
to delete the controversial aspects and
others, into consideration while adopting the
introduced a constitutional amendment bill in
new panchayati raj system.
the Lok Sabha in September, 1991. This bill
finally emerged as the 73rd Constitutional The act is a significant landmark in the evolution
Amendment Act, 1992 and came into force on of grassroot democratic institutions in the
24th April, 1993. country. It transfers the representative
democracy into participatory democracy. It is a
73rd Amendment Act of 1992 revolutionary concept to build democracy at the
Significance of the Act grassroot level in the country.
This act has added a new Part-IX to the
Constitution of India. This part is entitled as ‘The Salient Features
Panchayats’ and consists of provisions from The salient features of the act are:
Articles 243 to 243 O. Gram Sabha
In addition, the act has also added a new The act provides for a Gram Sabha as the
Eleventh Schedule to the Constitution. This foundation of the panchayati raj system. It is a
schedule contains 29 functional items of the body consisting of persons registered in the
panchayats. It deals with Article 243-G. electoral rolls of a village comprised within the
The act has given a practical shape to Article 40 area of Panchayat at the village level. Thus, it is
of the Constitution which says that, “The State a village assembly consisting of all the
shall take steps to organise village panchayats registered voters in the area of a panchayat. It
and endow them with such powers and may exercise such powers and perform such
authority as may be necessary to enable them to functions at the village level as the legislature of
function as units of self-government.” a state determines.

This article forms a part of the Directive Three-Tier System

Principles of State Policy. The act provides for a three-tier system of
The act gives a constitutional status to the panchayati raj in every state, that is, panchayats
panchayati raj institutions. It has brought them at the village, intermediate, and district levels.
under the purview of the justiciable part of the Thus, the act brings about uniformity in the
Constitution. structure of panchayati raj throughout the
country. However, a state having a population
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not exceeding 20 lakh may not constitute 334 (which is presently seventy years, that is,
panchayats at the intermediate level. till 2020).
Election of Members and Chairpersons It must be noted here that the above provision
relating to the reservation of seats in
All the members of panchayats at the village,
panchayats (both members and chairpersons)
intermediate and district levels shall be elected
for the scheduled castes is not applicable to the
directly by the people. Further, the chairperson
state of Arunachal Pradesh.
of panchayats at the intermediate and district
levels shall be elected indirectly by and from This is because the state is inhabited fully by
amongst the elected members thereof. indigenous tribal people and there are no
scheduled castes. This provision was added
However, the chairperson of a panchayat at the
later by the 83rd Constitutional Amendment Act
village level shall be elected in such manner as
of 2000.
the state legislature determines.
Duration of Panchayats
The chairperson of a panchayat and other
members of a panchayat elected directly or The act provides for a five-year term of office to
indirectly shall have the right to vote in the the panchayat at every level. However, it can be
meetings of the panchayats. dissolved before the completion of its term.
Reservation of Seats Further, fresh elections to constitute a
panchayat shall be completed (a) before the
The act provides for the reservation of seats for
expiry of its duration of five years; or (b) in case
scheduled castes and scheduled tribes in every
of dissolution, before the expiry of a period of six
panchayat (i.e., at all the three levels) in
months from the date of its dissolution.
proportion of their population to the total
population in the panchayat area. But, where the remainder of the period (for
which the dissolved panchayat would have
Further, the state legislature shall provide for
continued) is less than six months, it shall not be
the reservation of offices of chairperson in the
necessary to hold any election for constituting
panchayat at the village or any other level for
the new panchayat for such period.
the SCs and STs.
Moreover, a panchayat constituted upon the
The act provides for the reservation of not less
dissolution of a panchayat before the expiration
than one-third of the total number of seats for
of its duration shall continue only for the
women (including the number of seats reserved
remainder of the period for which the dissolved
for women belonging the SCs and STs).
panchayat would have continued had it not been
Further, not less than one-third of the total so dissolved.
number of offices of chairpersons in the
In other words, a panchayat reconstituted after
panchayats at each level shall be reserved for
premature dissolution does not enjoy the full
women.
period of five years but remains in office only for
The act also authorises the legislature of a state the remainder of the period.
to make any provision for reservation of seats in
Disqualifications
any panchayat or offices of chairperson in the
panchayat at any level in favour of backward A person shall be disqualified for being chosen
classes. as or for being a member of panchayat if he is so
disqualified, (a) under any law for the time
The reservation of seats as well as the
being in force for the purpose of elections to the
reservation of offices of chairpersons in the
legislature of the state concerned, or (b) under
panchayats for the scheduled castes and
any law made by the state legislature.
scheduled tribes shall cease to have effect after
the expiration of the period specified in Article

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However, no person shall be disqualified on the b) assign to a panchayat taxes, duties, tolls and
ground that he is less than 25 years of age if he fees levied and collected by the state
has attained the age of 21 years. government;
c) provide for making grants-in-aid to the
Further, all questions of disqualifications shall
panchayats from the consolidated fund of
be referred to such authority as the state
the state; and
legislature determines.
d) provide for constitution of funds for
State Election Commission crediting all moneys of the panchayats.

The superintendence, direction and control of Finance Commission

the preparation of electoral rolls and the
The governor of a state shall, after every five
conduct of all elections to the panchayats shall
years, constitute a finance commission to
be vested in the state election commission. It
review the financial position of the panchayats.
consists of a state election commissioner to be
appointed by the governor. It shall make the following recommendations to
the Governor:
His conditions of service and tenure of office
shall also be determined by the governor. • The principles that should govern:
o The distribution between the state and
He shall not be removed from the office except
the panchayats of the net proceeds of the
in the manner and on the grounds prescribed for
taxes, duties, tolls and fees levied by the
the removal of a judge of the state high court.
state and allocation of shares amongst
His conditions of service shall not be varied to the panchayats at all levels.
his disadvantage after his appointment. o The determination of taxes, duties, tolls
and fees that may be assigned to the
The state legislature may make provision with
panchayats.
respect to all matters relating to elections to the
o The grants-in-aid to the panchayats from
panchayats.
the consolidated fund of the state.
Powers and Functions
• The measures needed to improve the
The state legislature may endow the Panchayats
financial position of the panchayats.
with such powers and authority as may be
• Any other matter referred to it by the
necessary to enable them to function as
governor in the interests of sound finance of
institutions of self-government. Such a scheme
the panchayats.
may contain provisions for the devolution of
powers and responsibilities upon Panchayats at The state legislature may provide for the
the appropriate level with respect to composition of the commission, the required
qualifications of its members and the manner of
a) the preparation of plans for economic
their selection.
development and social justice;
b) the implementation of schemes for The governor shall place the recommendations
economic development and social justice as of the commission along with the action taken
may be entrusted to them, including those in report before the state legislature.
relation to the 29 matters listed in the
The Central Finance Commission shall also
Eleventh Schedule.
suggest the measures needed to augment the
Finances consolidated fund of a state to supplement the
resources of the panchayats in the states (on the
The state legislature may
basis of the recommendations made by the
a) authorise a panchayat to levy, collect and finance commission of the state).
appropriate taxes, duties, tolls and fees;

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Audit of Accounts Consequently, majority of states passed the

panchayati raj acts in 1993 and 1994 to adopt
The state legislature may make provisions with
the new system in accordance with the 73rd
respect to the maintenance of accounts by the
Constitutional Amendment Act of 1992.
panchayats and the auditing of such accounts.
Bar to Interference by Courts in Electoral
Application to Union Territories
Matters
The provisions of this Part are applicable to the
The act bars the interference by courts in the
Union territories. But, the President may direct
electoral matters of panchayats. It declares that
that they would apply to a Union territory
the validity of any law relating to the
subject to such exceptions and modifications as
delimitation of constituencies or the allotment
he may specify.
of seats to such constituencies cannot be
Exempted States and Areas questioned in any court. It further lays down
that no election to any panchayat is to be
The act does not apply to the states of Nagaland,
questioned except by an election petition
Meghalaya and Mizoram and certain other
presented to such authority and in such manner
areas.
as provided by the state legislature.
These areas include,
Eleventh Schedule
• the scheduled areas and the tribal areas in It contains the following 29 functional items
the states; placed within the purview of panchayats:
• the hill areas of Manipur for which district • Agriculture, including agricultural extension
councils exist; and
• Land improvement, implementation of land
• Darjeeling district of West Bengal for which reforms, land consolidation and soil
Darjeeling Gorkha Hill Council exists. conservation
However, the Parliament may extend the • Minor irrigation, water management and
provisions of this Part to the scheduled areas watershed development
and tribal areas subject to such exceptions and • Animal husbandry, dairying and poultry
modifications as it may specify. • Fisheries
• Social forestry and farm forestry
Under this provision, the Parliament has
• Minor forest produce
enacted the “Provisions of the Panchayats
• Small-scale industries, including food
(Extension to the Scheduled Areas Act”, 1996,
processing industries
popularly known as the PESA Act or the
Extension Act. • Khadi, village and cottage industries
• Rural housing
Continuance of Existing Laws and • Drinking water
Panchayats • Fuel and fodder
All the state laws relating to panchayats shall • Roads, culverts, bridges, ferries, waterways
continue to be in force until the expiry of one and other means of communication
year from the commencement of this act. In • Rural electrification, including distribution
other words, the states have to adopt the new of electricity
panchayati raj system based on this act within • Non-conventional energy sources
the maximum period of one year from 24 April, • Poverty alleviation programme
1993, which was the date of the commencement • Education, including primary and secondary
of this act. schools
• Technical training and vocational education
However, all the panchayats existing
• Adult and non-formal education
immediately before the commencement of act
• Libraries
shall continue till the expiry of their term, unless
• Cultural activities
dissolved by the state legislature sooner.
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• Markets and fairs • Constitution of a State Finance Commission

• Health and sanitation including hospitals, after every five years to review the financial
primary health centres and dispensaries position of the panchayats.
• Family welfare
Voluntary Provisions
• Women and child development
• Endowing the Gram Sabha with powers and
• Social welfare, including welfare of the
functions at the village level.
handicapped and mentally retarded
• Determining the manner of election of the
• Welfare of the weaker sections, and in chairperson of the village panchayat.
particular, of the scheduled castes and the
• Giving representation to the chairpersons of
scheduled tribes
the village panchayats in the intermediate
• Public distribution system panchayats or in the case of a state not
• Maintenance of community assets. having intermediate panchayats, in the
Compulsory and Voluntary Provisions district panchayats.
Now, we will identify separately the compulsory • Giving representation to the chairpersons of
(obligatory or mandatory) and voluntary the intermediate panchayats in the district
(discretionary or optional) provisions panchayats.
(features) of the 73rd Constitutional • Giving representation to members of the
Amendment Act (1992) or the Part IX of the Parliament (both the Houses) and the state
Constitution: legislature (both the Houses) in the
panchayats at different levels falling within
Compulsory Provisions their constituencies.
• Organisation of Gram Sabha in a village or • Providing reservation of seats (both
group of villages. members and chairpersons) for backward
• Establishment of panchayats at the village, classes in panchayats at any level.
intermediate and district levels. • Granting powers and authority to the
• Direct elections to all seats in panchayats at panchayats to enable them to function as
the village, intermediate and district levels. institutions of self-government (in brief,
• Indirect elections to the post of chairperson making them autonomous bodies).
of panchayats at the intermediate and • Devolution of powers and responsibilities
district levels. upon panchayats to prepare plans for
• Voting rights of the chairperson and other economic development and social justice;
members of a panchayat elected directly or and to perform some or all of the 29
indirectly. functions listed in the Eleventh Schedule of
• 21 years to be the minimum age for the Constitution.
contesting elections to panchayats. • Granting financial powers to the panchayats,
• Reservation of seats (both members and that is, authorizing them to levy, collect and
chairpersons) for SCs and STs in panchayats appropriate taxes, duties, tolls and fees.
at all the three levels. • Assigning to a panchayat the taxes, duties,
• Reservation of one-third seats (both tolls and fees levied and collected by the
members and chairpersons) for women in state government.
panchayats at all the three levels. • Making the grants-in-aid to the panchayats
• Fixing tenure of five years for panchayats at from the consolidated fund of the state.
all levels and holding fresh elections within • Providing for constitution of funds for
six months in the event of supersession of crediting all moneys of the panchayats.
any panchayat.
• Establishment of a State Election PESA Act of 1996 (Extension Act)
Commission for conducting elections to the The provisions of Part IX of the constitution
panchayats. relating to the Panchayats are not applicable to
the Fifth Schedule areas. However, the

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Parliament may extend these provisions to such • A village shall ordinarily consist of a
areas, subject to such exceptions and habitation or a group of habitations or a
modifications as it may specify. Under this hamlet or a group of hamlets comprising a
provision, the Parliament has enacted the community and managing its affairs in
“Provisions of the Panchayats (Extension to the accordance with traditions and customs.
Scheduled Areas) Act”, 1996, popularly known • Every village shall have a Gram Sabha
as the PESA Act or the Extension Act. consisting of persons whose names are
included in the electoral rolls for the
At present (2019), ten states have Fifth
Panchayat at the village level.
Schedule Areas. These are: Andhra Pradesh,
• Every Gram Sabha shall be competent to
Telangana, Chhattisgarh, Gujarat, Himachal
safeguard and preserve the traditions and
Pradesh, Jharkhand, Madhya Pradesh,
Maharashtra, Odisha and Rajasthan. customs of the people, their cultural identity,
community resources and the customary
All the ten states have enacted requisite mode of dispute resolution.
compliance legislations by amending the • Every Gram Sabha shall–
respective Panchayati Raj Acts. o approve of the plans, programmes and
projects for social economic
Objectives of the Act
development before they are taken up
The objectives of the PESA Act are as follows:
implementation by the Panchayat at the
• To extend the provisions of Part IX of the village level; and
Constitution relating to the panchayats to o be responsible for the identification of
the scheduled areas with certain beneficiaries under poverty alleviation
modifications and other programmes.
• To provide self-rule for the bulk of the tribal • Every Panchayat at the village level shall be
population required to obtain from the Gram Sabha a
• To have village governance with certification of utilisation of funds for the
participatory democracy and to make the above plans, programmes and projects.
gram sabha a nucleus of all activities • The reservation of seats in the Scheduled
• To evolve a suitable administrative Areas in every Panchayat shall be in
framework consistent with traditional proportion to the population of the
practices communities for whom reservation is
• To safeguard and to preserve the traditions sought to be given under Part IX of the
and customs of tribal communities Constitution. However, the reservation for
• To empower panchayats at the appropriate the Scheduled Tribes shall not be less than
levels with specific powers conducive to one-half of the total number of seats.
tribal requirements Further, all seats of Chairpersons of
• To prevent panchayats at the higher level Panchayats at all levels shall be reserved for
from assuming the powers and authority of the Scheduled Tribes.
panchayats at the lower level of the gram • The state government may nominate such
sabha. Scheduled Tribes which have no
representation in the Panchayat at the
Features of the Act intermediate level or the Panchayat at the
The features (or the provisions) of the PESA Act district level. But such nomination shall not
are as follows: exceed one-tenth of the total members to be
• A state legislation on the Panchayats in the elected in that Panchayat.
Scheduled Areas shall be in consonance with • The Gram Sabha or the Panchayats at the
the customary law, social and religious appropriate level shall be consulted before
practices and traditional management making the acquisition of land in the
practices of community resources. Scheduled Areas for development projects
and before resettling or rehabilitating
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persons affected by such projects in the • The State Legislature shall endeavour to
Scheduled Areas. However, the actual follow the pattern of the Sixth Schedule to
planning and implementation of the projects the Constitution while designing the
in the Scheduled Areas shall be coordinated administrative arrangements in the
at the state level. Panchayats at district levels in the Scheduled
• Planning and management of minor water Areas.
bodies in the Scheduled Areas shall be • Any provision of any law (relating to
entrusted to Panchayats at the appropriate Panchayats in the Scheduled Areas) which is
level. inconsistent with the provisions of this Act
• The recommendations of the Gram Sabha or shall cease to be in force at the expiry of one
the Panchayats at the appropriate level shall year from the date on which this Act receives
be mandatory for grant of prospecting the assent of the President.
licence or mining lease for minor minerals in
However, all the Panchayats existing
the Scheduled Areas.
immediately before such date shall continue till
• The prior recommendation of the Gram
the expiry of their term, unless dissolved by the
Sabha or the Panchayats at the appropriate
State Legislature sooner.
level shall be mandatory for grant of
concession for the exploitation of minor Finances of Panchayati Raj
minerals by auction. The Second Administrative Reforms
• While endowing Panchayats in the Commission of India (2005– 2009) has
Scheduled Areas with such powers and summarized the sources of revenue of the
authority as may be necessary to enable Panchayati Raj Institutions (PRIs) and their
them to function as institutions of self- financial problems in the following way:
government, a State Legislature shall ensure
that the Panchayats at the appropriate level • A major portion of Part IX of the Constitution
and the Gram Sabha are endowed deals with structural empowerment of the
specifically with– PRIs but the real strength in terms of both
o the power to enforce prohibition or to autonomy and efficiency of these
regulate or restrict the sale and institutions is dependent on their financial
consumption of any intoxicant position (including their capacity to
o the ownership of minor forest produce generate own resources). In general,
o the power to prevent alienation of land in Panchayats in our country receive funds in
the Scheduled Area and to take the following ways:
appropriate action to restore any o Grants from the Union Government
unlawfully alienated land of a Scheduled based on recommendations of the
Tribe Central Finance Commission as Article
o the power to manage village markets 280 of the Constitution.
o the power to exercise control over o Devolution from the State Government
money lending to Scheduled Tribes based on recommendations of the State
o the power to exercise control over Finance Commission as per Art 243-I.
institutions and functionaries all social o Loans/grants from the State
sectors Government.
o the power to control local plans and o Programme-specific allocation under
resources for such plans including tribal Centrally Sponsored Schemes and
sub-plans Additional Central Assistance.
• The State Legislations shall contain o Internal Resource Generation (tax and
safeguards to ensure that Panchayats at the non-tax).
higher level do not assume the powers and
authority of any Panchayat at the lower level • Across the country, States have not given
or of the Gram Sabha. adequate attention to fiscal empowerment
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of the Panchayats. The Panchayats own domain of their own, while the other two
resources are meagre. Kerala, Karnataka and tiers are dependent only on tolls, fees and
Tamil Nadu are the states which are non-tax revenue for generating internal
considered to be progressive in PRIs resources.
empowerment but even there, the • State Panchayati Raj Acts have given most of
Panchayats are heavily dependent on the taxation powers to Village Panchayats.
government grants. The revenue domain of the intermediate and
One can draw the following broad District Panchayats (both tax as well as
conclusions: nontax) has been kept much smaller and
o Internal resource generation at the remains confined to secondary areas like
Panchayat level is weak. This is partly ferry services, markets, water and
due to a thin tax domain and partly due conservancy services, registration of
to Panchayats own reluctance in vehicles, cess on stamp duty and a few
collecting revenue. others.
o Panchayats are heavily dependent on • A study of various State Legislations
grants from Union and State indicates that a number of taxes, duties, tolls
Governments. and fees come under the jurisdiction of the
o A major portion of the grants both from Village Panchayats. These include octroi,
Union as well as the State Governments property/ house tax, profession tax, land
is scheme specific. Panchayats have tax/cess, taxes/tolls on vehicles,
limited discretion and flexibility in entertainment tax/fees, license fees, tax on
incurring expenditure. non-agriculture land, fee on registration of
o In view of their own tight fiscal position, cattle, sanitation/drainage/conservancy tax,
State Governments not keen to devolve water rate/ tax, lighting rate/tax, education
funds to Panchayats. cess and tax on fairs and festivals.
o In most of the critical Eleventh Schedule
matters like prim education, healthcare, Reasons for Ineffective Performance
water supply, sanitation and minor Even after conferring the constitutional status
irrigation even now, it is the State and protection through the 73rd Amendment Act
Government which is directly (1992), the performance of the Panchayati Raj
responsible for implementation of these Institutions (PRIs) has not been satisfactory and
programmes and hence expenditure. not upto the expected level.
o Overall, a situation has been created The various reasons for this sub-optimal
where Panchayats have responsibility performance are as follows:
but grossly inadequate resources.
• Lack of adequate devolution: Many States
• Though, in absolute terms, the quantum of have not taken adequate steps to devolve
funds the Union/State Government transfers 3Fs (i.e., functions, funds and functionaries)
to a Panchayat forms the major component to the PRIs to enable them to discharge their
of its receipt, the PRI’s own resource constitutionally stipulated function. Further,
generation is the soul behind its financial it is imperative that the PRIs have resources
standing. It is not only a question of to match the responsibilities entrusted to
resources; it is the existence of a local them. While SFCs (state finance
taxation system which ensures people’s commissions) have submitted their
involvement in the affairs of an elected body. recommendations, not many few States have
It also makes the institution accountable to implemented these or taken steps to ensure
its citizens. the fiscal viability of the PRIs.
• In terms of own resource collection, the • Excessive control by bureaucracy: In
Gram Panchayats are comparatively in a some States, the Gram Panchayats have been
better position because they have a tax placed in a position of subordination.
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• Hence, the Gram Panchayat Sarpanches have have any procedures been laid down for the
to spend extraordinary amount of time functioning of these bodies or penalties for
visiting Block Offices for funds and/or the officials.
technical approval. These interactions with • Creation of Parallel Bodies: Often, Parallel
the Block staff office distort the role of Bodies (PBs) are created for supposedly
Sarpanches as elected representatives. speedy implementation and greater
• Tied nature of funds: This has two accountability. However, there is little
implications. The activities stated under a evidence to show that such PBs have
certain scheme are not always appropriate avoided the evils including that of partisan
for all parts of the district. This results in politics, sharing of spoils, corruption and
unsuitable activities being promoted or an elite capture. Missions (in particular) often
under-spend of the funds. bypassing mainstream programmes, create
• Overwhelming dependency on disconnect, duality, and alienation between
government funding: A review of money the existing and the new structures and
received and own source funds shows the functions. PBs usurp the legitimate space of
overwhelming dependence of Panchayats on PRIs and demoralize the PRIs by virtue of
government funding. When Panchayats do their superior resource endowments.
not raise resources and instead receive • Poor Infrastructure: A large number of
funds from outside, people are less likely to Gram Panchayats in the country do not have
request a social audit. even full time Secretary. Around 25 percent
• Reluctance to use fiscal powers: An of the Gram Panchayats do not have basic
important power devolved to GP (Gram office buildings. The database for planning,
Panchayat) is the right to levy tax on monitoring etc., are lacking in most of the
property, business, markets, fairs and also cases.
for services provided, like street lighting or A large number of elected representatives of
public toilets, etc. Very few Panchayats use PRIs are semi-literate or literate and know
their fiscal power to levy and collect taxes. little about their roles & responsibilities,
The argument pushed by Panchayat heads is programmes, procedures, systems. Often for
that it is difficult to levy tax on your own want of good, relevant and periodic training,
constituency, especially when you live in the they are not able to perform their functions
community. properly.
• Status of the Gram Sabha: Empowering the Although all the District and Intermediate
Gram Sabhas could have been a powerful Panchayats are connected with computers,
weapon for transparency, accountability only around 20% Gram Panchayats reported
and for involvement of the marginalized to be having computing facility. In some
sections. States, Village Panchayats do not have any
• However, a number of the State Acts have computing facility.
not spelt the powers of Gram Sabhas nor
*********

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Chapter 39 – Municipalities

The term ‘Urban Local Government’ in India • Under the dyarchical scheme introduced in
signifies the governance of an urban area by the Provinces by the Government of India Act of
people through their elected representatives. 1919, local self-government became a
transferred subject under the charge of a
The jurisdiction of an urban local government is
responsible Indian minister.
limited to a specific urban area which is
• In 1924, the Cantonments Act was passed by
demarcated for this purpose by the state
the Central legislature.
government.
• Under the provincial autonomy scheme
There are eight types of urban local introduced by the Government of India Act
governments in India– municipal corporation, of 1935, local self-government was declared
municipality, notified area committee, town a provincial subject.
area committee, cantonment board, township,
port trust and special purpose agency. Committees and Commissions
The committees and commissions appointed by
The system of urban government was the Central Government to improve the
constitutionalised through the 74th functioning of urban local governments are
Constitutional Amendment Act of 1992. At the mentioned in the table below.
Central level, the subject of ‘urban local
government’ is dealt with by the following three
ministries:

• Ministry of Housing and Urban Affairs.

• Ministry of Defence in the case of
cantonment boards
• Ministry of Home Affairs in the case of Union
Territories

Evolution of Urban Bodies

Historical Perspective
The institutions of urban local government
originated and developed in modern India
during the period of British rule.
The major events in this context are as follows:

• In 1688, the first municipal corporation in

India was set up at Madras.
• In 1726, the municipal corporations were
set up in Bombay and Calcutta.
• Lord Mayo’s Resolution of 1870 on financial
decentralisation visualised the development Constitutionalisation
of local self-government institutions. In August 1989, the Rajiv Gandhi government
• Lord Ripon’s Resolution of 1882 has been introduced the 65th Constitutional Amendment
hailed as the ‘Magna Carta’ of local self- Bill (i.e., Nagarpalika Bill) in the Lok Sabha.
government. He is called as the father of
The bill aimed at strengthening and revamping
local-self-government in India.
the municipal bodies by conferring a
• The Royal Commission on decentralisation
constitutional status on them. Although the bill
was appointed in 1907 and it submitted is
was passed in the Lok Sabha, it was defeated in
report in 1909. Its chairman was Hobhouse.
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the Rajya Sabha in October 1989 and hence, But, there is one exception. If there is an urban
lapsed. area where municipal services are being
provided by an industrial establishment, then
The National Front Government under V P Singh
the governor may specify that area to be an
introduced the revised Nagarpalika Bill in the
industrial township.
Lok Sabha again in September 1990.
In such a case, a municipality may not be
However, the bill was not passed and finally
constituted.
lapsed due to the dissolution of the Lok Sabha.
The governor has to specify a transitional area,
P V Narasimha Rao’s Government also
a smaller urban area or a larger urban area,
introduced the modified Municipalities Bill in
keeping in view the following factors:
the Lok Sabha in September 1991. It finally
emerged as the 74th Constitutional Amendment (a) Population of the area
Act of 1992 and came into force on 1 June 1993.
(b) Density of the population therein
74th Amendment Act of 1992 (c) Revenue generated for local administration
This Act has added a new Part IX-A to the
Constitution of India. (d) Percentage of employment in non-
agricultural activities
This part is entitled as ‘The Municipalities’ and
consists of provisions from Articles 243-P to (e) Economic importance
243-ZG.
(f) Such other factors as he may deem fit
In addition, the act has also added a new Twelfth
Composition
Schedule to the Constitution. This schedule
contains eighteen functional items of All the members of a municipality shall be
municipalities. It deals with Article 243-W. elected directly by the people of the municipal
area. For this purpose, each municipal area shall
The act gave constitutional status to the
be divided into territorial constituencies to be
municipalities. It has brought them under the
known as wards.
purview of justiciable part of the Constitution.
The state legislature may provide the manner of
In other words, state governments are under
election of the chairperson of a municipality. It
constitutional obligation to adopt the new
may also provide for the representation of the
system of municipalities in accordance with the
following persons in a municipality.
provisions of the act.
• Persons having special knowledge or
The act aims at revitalising and strengthening
experience in municipal administration
the urban governments so that they function
without the right to vote in the meetings of
effectively as units of local government.
municipality.
Salient Features • The members of the Lok Sabha and the state
The salient features of the act are: legislative assembly representing
constituencies that comprise wholly or
Three Types of Municipalities
partly the municipal area.
The act provides for the constitution of the • The members of the Rajya Sabha and the
following three types of municipalities in every state legislative council registered as
state. electors within the municipal area.
• The chairpersons of committees (other than
• A nagar panchayat (by whatever name
wards committees).
called) for a transitional area.
• A municipal council for a smaller urban area. Wards Committees
• A municipal corporation for a larger urban
There shall be constituted a wards committee,
area.
consisting of one or more wards, within the
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territorial area of a municipality having But, where the remainder of the period (for
population of three lakh or more. The state which the dissolved municipality would have
legislature may make provision with respect to continued) is less than six months, it shall not be
the composition and the territorial area of a necessary to hold any election for constituting
wards committee and the manner in which the the new municipality for such period.
seats in a wards committee shall be filled.
Moreover, a municipality constituted upon the
Other Committees dissolution of a municipality before the
expiration of its duration shall continue only for
In addition to the wards committees, the state
the remainder of the period for which the
legislature is also allowed to make any provision
dissolved municipality would have continued
for the constitution of other committees.
had it not been so dissolved. In other words, a
The chairpersons of such committees may be municipality reconstituted after premature
made members of the municipality. dissolution does not enjoy the full period of five
years but remains in office only for the
Reservation of Seats
remainder of the period.
The act provides for the reservation of seats for
The act also makes two more provisions with
the scheduled castes and the scheduled tribes in
respect to dissolution:
every municipality in proportion of their
population to the total population in the • a municipality must be given a reasonable
municipal area. Further, it provides for the opportunity of being heard before its
reservation of not less than one-third of the total dissolution; and
number of seats for women (including the • no amendment of any law for the time being
number of seats reserved for woman belonging in force shall cause dissolution of a
to the SCs and the STs). municipality before the expiry of the five
years term.
The state legislature may provide for the
manner of reservation of offices of chairpersons Disqualifications
in the municipalities for SCs, STs and women.
A person shall be disqualified for being chosen
It may also make any provision for the as or for being a member of a municipality if he
reservation of seats in any municipality or is so disqualified (a) under any law for the time
offices of chairpersons in municipalities in being in force for the purposes of elections to
favour of backward classes. the legislature of the state concerned; or (b)
under any law made by the state legislature.
The reservation of seats as well as the
reservation of offices of chairpersons in the However, no person shall be disqualified on the
municipalities for the scheduled castes and ground that he is less than 25 years of age if he
scheduled tribes shall cease to have effect after has attained the age of 21 years. Further, all
the expiration of the period specified in Article questions of disqualifications shall be referred
334 (which is presently seventy years, that is, to such authority as the state legislature
till 2020). determines.
Duration of Municipalities State Election Commission
The act provides for a five-year term of office for The superintendence, direction and control of
every municipality. However, it can be dissolved the preparation of electoral rolls and the
before the completion of its term. Further, the conduct of all elections to the municipalities
fresh elections to constitute a municipality shall shall be vested in the state election commission.
be completed (a) before the expiry of its
The state legislature may make provision with
duration of five years; or (b) in case of
respect to all matters relating to elections to the
dissolution, before the expiry of a period of six
municipalities.
months from the date of its dissolution.
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Powers and Functions • The measures needed to improve the

financial position of the municipalities.
The state legislature may endow the
• Any other matter referred to it by the
municipalities with such powers and authority
governor in the interests of sound finance of
as may be necessary to enable them to function
municipalities.
as institutions of self-government. Such a
scheme may contain provisions for the The governor shall place the recommendations
devolution of powers and responsibilities upon of the commission along with the action taken
municipalities at the appropriate level with report before the state legislature.
respect to
The central finance commission shall also
a) the preparation of plans for economic suggest the measures needed to augment the
development and social justice; consolidated fund of a state to supplement the
b) the implementation of schemes for resources of the municipalities in the state (on
economic development and social justice as the basis of the recommendations made by the
may be entrusted to them, including those in finance commission of the state).
relation to the eighteen matters listed in the
Twelfth Schedule. Audit of Accounts

Finances The state legislature may make provisions with

respect to the maintenance of accounts by
The state legislature may municipalities and the auditing of such
accounts.
a) authorise a municipality to levy, collect and
appropriate taxes, duties, tolls and fees; Application to Union Territories
b) assign to a municipality taxes, duties, tolls
and fees levied and collected by state The provisions of this part are applicable to the
government; Union territories. But the President may direct
c) provide for making grants-in-aid to the that they would apply to a Union territory
municipalities from the consolidated fund of subject to such exceptions and modifications as
he may specify.
the state; and
d) provide for constitution of funds for Exempted Areas
crediting all moneys of the municipalities.
The act does not apply to the scheduled areas
Finance Commission and tribal areas in the states. It shall also not
The finance commission (which is constituted affect the functions and powers of the Darjeeling
Gorkha Hill Council of the West Bengal.
for the panchayats) shall also, for every five
years, review the financial position of However, the Parliament may extend the
municipalities and make recommendation to provisions of this part to the scheduled areas
the governor as to: and tribal areas subject to such exceptions and
modifications as it may specify.
• The principles that should govern:
o The distribution between the state and District Planning Committee
the municipalities of the net proceeds of
the taxes, duties, tolls and fees levied by Every state shall constitute at the district level,
the state and allocation of shares a district planning committee to consolidate the
amongst the municipalities at all levels. plans prepared by panchayats and
o The determination of the taxes, duties, municipalities in the district, and to prepare a
tolls and fees that may be assigned to the draft development plan for the district as a
municipalities whole. The state legislature may make
o The grants-in-aid to the municipalities provisions with respect to the following:
from the consolidated fund of the state. • The composition of such committees;

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• The manner of election of members of such • The functions of such committees in relation
committees; to planning and coordination for the
• The functions of such committees in relation metropolitan area; and
to district planning; and • The manner of election of chairpersons of
• The manner of the election of the such committees.
chairpersons of such committees.
The act lays down that two-thirds of the
The act lays down that four-fifths of the members of a metropolitan planning committee
members of a district planning committee should be elected by the elected members of the
should be elected by the elected members of the municipalities and chairpersons of the
district panchayat and municipalities in the panchayats in the metropolitan area from
district from amongst themselves. amongst themselves. The representation of
these members in the committee should be in
The representation of these members in the
proportion to the ratio between the population
committee should be in proportion to the ratio
of the municipalities and the panchayats in that
between the rural and urban populations in the
metropolitan area.
district.
The chairpersons of such committees shall
The chairperson of such committee shall
forward the development plan to the state
forward the development plan to the state
government.
government.
In preparing the draft development plan, a
In preparing the draft development plan, a
metropolitan planning committee shall
district planning committee shall
• Have regard to–
• Have regard to–
o the plans prepared by the Municipalities
o matters of common interest between the
and the Panchayats in the Metropolitan
Panchayats and Municipalities including
area
spatial planning, sharing of water and
o matters of common interest between the
other physical and natural resources, the
Municipalities and the Panchayats,
integrated development of
including co-ordinated spatial planning
infrastructure and environmental
of the area, sharing of water and other
conservation;
physical and natural resources, the
o the extent and type of available
integrated development of
resources whether financial or
infrastructure and environment
otherwise; and
conservation;
• Consult such institutions and organisations o the overall objectives and priorities set
as the Governor may specify. by the Government of India and the
Metropolitan Planning Committee government of the state;
o the extent and nature of investments
Every metropolitan area shall have a likely to be made in the Metropolitan
metropolitan planning committee to prepare a area by agencies of the Government of
draft development plan. The state legislature India and the Government of the State
may make provisions with respect to the and other available resources whether
following: financial or otherwise; and
• The composition of such committees; • consult such institutions and organisations
• The manner of election of members of such as the Governor may specify.
committees;
• The representation in such committees of
the Central government, state government
and other organisations;

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Continuance of Existing Laws and 9. Safeguarding the interests of weaker

Municipalities sections of society, including the
handicapped and mentally retarded;
All the state laws relating to municipalities shall
10. Slum improvement and upgradation;
continue to be in force until the expiry of one
11. Urban poverty alleviation;
year from the commencement of this act.
12. Provision of urban amenities and facilities
In other words, the states have to adopt the new such as parks, gardens, playgrounds;
system of municipalities based on this act within 13. Promotion of cultural, educational and
the maximum period of one year from 1 June, aesthetic aspects;
1993, which is the date of commencement of 14. Burials and burial grounds, cremations and
this act. cremation grounds and electric
crematoriums;
However, all municipalities existing
15. Cattle ponds, prevention of cruelty to
immediately before the commencement of this
animals;
act shall continue till the expiry of their term,
16. Vital statistics including registration of
unless dissolved by the state legislature sooner.
births and deaths;
Bar to Interference by Courts in Electoral 17. Public amenities including street lighting,
Matters parking lots, bus stops and public
conveniences; and
The act bars the interference by courts in the 18. Regulation of slaughter houses and
electoral matters of municipalities. It declares tanneries.
that the validity of any law relating to the
delimitation of constituencies or the allotment Types of Urban Governments
of seats to such constituencies cannot be The following eight types of urban local bodies
questioned in any court. are created in India for the administration of
urban areas:
It further lays down that no election to any
municipality is to be questioned except by an • Municipal Corporation
election petition presented to such authority • Municipality
and in such manner as provided by the state • Notified Area Committee
legislature. • Town Area Committee
Twelfth Schedule • Cantonment Board
It contains the following 18 functional items • Township
placed within the purview of municipalities: • Port Trust
• Special Purpose Agency
1. Urban planning including town planning;
2. Regulation of land use and construction of Municipal Corporation
buildings; Municipal corporations are created for the
3. Planning for economic and social administration of big cities like Delhi, Mumbai,
development; Kolkata, Hyderabad, Bangalore and others. They
4. Roads and bridges; are established in the states by the acts of the
5. Water supply for domestic, industrial and concerned state legislatures, and in the union
commercial purposes; territories by the acts of the Parliament of India.
6. Public health, sanitation, conservancy and
There may be one common act for all the
solid waste management;
municipal corporations in a state or a separate
7. Fire services;
act for each municipal corporation.
8. Urban forestry, protection of the
environment and promotion of ecological A municipal corporation has three authorities,
aspects; namely, the council, the standing committees
and the commissioner.

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The Council is the deliberative and legislative corporation, he plays a significant role and is the
wing of the corporation. It consists of the pivot of the municipal administration.
Councillors directly elected by the people, as
Apart from presiding over the meetings of the
well as a few nominated persons having
Council, he enjoys executive powers.
knowledge or experience of municipal
administration. In brief, the composition of the The standing committees are created to
Council including the reservation of seats for facilitate the working of the council. They deal
SCs, STs and women is governed by the 74th with public works, taxation, health, finance and
Constitutional Amendment Act. The Council is so on.
headed by a Mayor. He is assisted by a Deputy
The chief executive officer/chief municipal
Mayor. He is elected in a majority of the states
officer is responsible for day-to-day general
for a one-year renewable term. He is basically an
administration of the municipality. He is
ornamental figure and a formal head of the
appointed by the state government.
corporation. His main function is to preside over
the meetings of the Council. Notified Area Committee
A notified area committee is created for the
The standing committees are created to
administration of two types of areas–a fast
facilitate the working of the council, which is too
developing town due to industrialisation, and a
large in size. They deal with public works,
town which does not yet fulfil all the conditions
education, health, taxation, finance and so on.
necessary for the constitution of a municipality,
They take decisions in their fields.
but which otherwise is considered important by
The municipal commissioner is responsible for the state government.
the implementation of the decisions taken by
Since it is established by a notification in the
the council and its standing committees. Thus,
government gazette, it is called as notified area
he is the chief executive authority of the
committee. Though it functions within the
corporation. He is appointed by the state
framework of the State Municipal Act, only those
government and is generally a member of the
provisions of the act apply to it which are
IAS.
notified in the government gazette by which it is
Municipality created. It may also be entrusted to exercise
The municipalities are established for the powers under any other act.
administration of towns and smaller cities. Like
Its powers are almost equivalent to those of a
the corporations, they are also set up in the
municipality. But unlike the municipality, it is an
states by the acts of the concerned state
entirely nominated body, that is, all the
legislatures and in the union territory by the
members of a notified area committee including
acts of the Parliament of India. They are also
the chairman are nominated by the state
known by various other names like municipal
government. Thus, it is neither an elected body
council, municipal committee, municipal board,
nor a statutory body.
borough municipality, city municipality and
others. Like a municipal corporation, a Town Area Committee
municipality also has three authorities, namely, A town area committee is set up for the
the council, the standing committees and the administration of a small town. It is a semi-
chief executive officer. municipal authority and is entrusted with a
limited number of civic functions like drainage,
The council is the deliberative and legislative
roads, street lighting, and conservancy.
wing of the municipality. It consists of the
councillors directly elected by the people. It is created by a separate act of a state
legislature. Its composition, functions and other
The council is headed by a president/chairman.
matters are governed by the act. It may be
He is assisted by a vice-president/vice-
wholly elected or wholly nominated by the state
chairman. He presides over the meetings of the
council. Unlike the Mayor of a municipal
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government or partly elected and partly The Category I cantonment board consists of the
nominated. following members:
Cantonment Board I. A military officer commanding the
A cantonment board is established for station
municipal administration for civilian population II. An executive engineer in the cantonment
in the cantonment area. It is set up under the III. A health officer in the cantonment
provisions of the Cantonments Act of 2006–a IV. A first class magistrate nominated by the
legislation enacted by the Central government. district magistrate
V. Three military officers nominated by the
It works under the administrative control of the
officer commanding the station
defence ministry of the Central government.
VI. Eight members elected by the people of
Thus, unlike the above four types of urban local
the cantonment area Chief Executive
bodies, which are created and administered by
Officer of the cantonment board
the state government, a cantonment board is
created as well as administered by the Central The functions performed by a cantonment
government. board are similar to those of a municipality.
These are statutorily categorised into obligatory
The Cantonments Act of 2006 was enacted to
functions and discretionary functions. The
consolidate and amend the law relating to the
sources of income includes both, tax revenue
administration of cantonments with a view to
and non-tax revenue.
impart greater democratisation, improvement
of their financial base to make provisions for The executive officer of the cantonment board is
developmental activities and for matters appointed by the president of India. He
connected with them. This Act has repealed the implements all the resolutions and decisions of
Cantonments Act of 1924. the board and its committees. He belongs to the
central cadre established for the purpose.
At present (2019), there are 62 cantonment
boards in the country. They are grouped into Township
four categories on the basis of the civil This type of urban government is established by
population. This is shown in the table below. the large public enterprises to provide civic
amenities to its staff and workers who live in the
housing colonies built near the plant. The
enterprise appoints a town administrator to
look after the administration of the township.
He is assisted by some engineers and other
technical and non-technical staff. Thus, the
township form of urban government has no
A cantonment board consists of partly elected
elected members. In fact, it is an extension of the
and partly nominated members. The elected
bureaucratic structure of the enterprises.
members hold office for a term of five years
while the nominated members (i.e., ex-officio Port Trust
members) continue so long as they hold the The port trusts are established in the port areas
office in that station. like Mumbai, Kolkata, Chennai and so on for two
purposes: (a) to manage and protect the ports;
The military officer commanding the station is
and (b) to provide civic amenities.
the ex-officio president of the board and
presides over its meetings. A port trust is created by an Act of Parliament. It
consists of both elected and nominated
The vice-president of the board is elected by the
members.
elected members from amongst themselves for
a term of five years. Its chairman is an official. Its civic functions are
more or less similar to those of a municipality.
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Special Purpose Agency  Unified Personnel System: In this system,

In addition to these seven area-based urban the state government appoints, administers,
bodies (or multipurpose agencies), the states and controls the municipal personnel. In
have set up certain agencies to undertake other words, state-wide services (cadres)
designated activities or specific functions that are created for all the urban bodies in the
‘legitimately’ belong to the domain of municipal state. They are transferable between the
corporations or municipalities or other local local bodies in the state. This system is
urban governments. prevalent in Andhra Pradesh, Tamil Nadu,
Uttar Pradesh, Rajasthan, Madhya Pradesh
In other words, these are function-based and
and so on.
not area based. They are known as ‘single
 Integrated Personnel System: Under this
purpose’, ‘uni-purpose’ or ‘special purpose’
system, the personnel of the state
agencies or ‘functional local bodies’.
government and those of the local bodies
Some such bodies are: form part of the same service. In other
words, the municipal personnel are the
1. Town improvement trusts
members of the state services. They are
2. Urban development authorities transferable not only between the local
bodies in the state but also between local
3. Water supply and sewerage boards bodies and departments of state
4. Housing boards government. Thus, there is no distinction
between local civil service and state civil
5. Pollution control boards service. This system is prevalent in Odisha,
6. Electricity supply boards Bihar, Karnataka, Punjab, Haryana and
others.
7. City transport boards
The various national level institutions providing
These functional local bodies are established as training to the municipal personnel are
statutory bodies by an act of state legislature or
as departments by an executive resolution. • All-India Institute of Local Self-Government
(Mumbai) constituted in 1927; it is a private
They function as autonomous bodies and deal registered society
with the functions allotted to them • Centre for Urban and Environmental Studies
independently of the local urban governments, (New Delhi) set up in 1967 on the
that is, municipal corporations or municipalities recommendation of Nuruddin Ahmed
and so forth. Thus, they are not subordinate Committee on Training of Municipal
agencies of the local municipal bodies. Employees (1963–1965)
Municipal Personnel • Regional Centres for Urban and
There are three types of municipal personnel Environmental Studies (Kolkata, Lucknow,
systems in India. The personnel working in the Hyderabad and Mumbai) set up in 1968 on
urban governments may belong to any one or all the recommendation of Nuruddin Ahmed
the three types. These are Committee on Training of Municipal
Employees (1963–1965)
 Separate Personnel System: Under this • National Institute of Urban Affairs,
system, each local body appoints, established in 1976
administers, and controls its own personnel. • Human Settlement Management Institute,
They are not transferable to other local established in 1985
bodies. It is the most widely prevalent
system. This system upholds the principle of Municipal Revenue
local autonomy and promotes undivided There are five sources of income of the urban
loyalty. local bodies. These are as follows:

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• Tax Revenue: The revenue from the local expenditure. They can borrow from the
taxes include property tax, entertainment financial institutions or other bodies only
tax, taxes on advertisements, professional with the approval of the state government.
tax, water tax, tax on animals, lighting tax,
pilgrim tax, market tax, toll on new bridges, Central Council of Local Government
octroi and so on. In addition, the municipal The Central Council of Local Government was
bodies imposes various cesses like library set up in 1954. It was constituted under Article
cess, education cess, beggary cess and so on. 263 of the Constitution of India by an order of
Octroi (i.e., taxes on the entry of goods into a the President of India. Originally, it was known
local area for consumption, use or sale as the Central Council of Local Self-Government.
therein) has been abolished in most of the However, the term ‘self-government’ was found
states. Property tax is the most important to be superfluous and hence was replaced by the
tax revenue. term ‘government’ in the 1980s. Till 1958, it
• Non-Tax Revenue: This source include rent dealt with both urban as well as rural local
on municipal properties, fees and fines, governments, but after 1958 it has been dealing
royalty, profits and dividends, interest, user with matters of urban local government only.
charges and miscellaneous receipts. The
user charges (i.e., payment for public The Council is an advisory body. It consists of
utilities) include water charges, sanitation the Minister for Urban Development in the
charges, sewerage charges and so on. Government of India and the ministers for local
• Grants: These include the various grants self-government in states. The Union minister
acts as the Chairman of the Council.
given to municipal bodies by the Central and
State Governments for several development The Council performs the following functions
programmes, infrastructure schemes, urban with regard to local government:
reform initiatives and so on.
• Devolution: This consists of the transfer of i. Considering and recommending the policy
funds to the urban local bodies from the matters
state government. This devolution is made ii. Making proposals for legislation
on the basis of the recommendations of the iii. Examining the possibility of cooperation
state finance commission. between the Centre and the states
iv. Drawing up a common programme of action
• Loans: The urban local bodies raise loans
v. Recommending Central financial assistance
from the state government as well as
vi. Reviewing the work done by the local bodies
financial institutions to meet their capital
with the Central financial assistance

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Chapter 40 – Union Territories

Under Article 1 of the Constitution, the territory At present, there are eight Union Territories.
of India comprises three categories of They are (along with the year of creation):
territories: (a) territories of the states; (b) union
territories; and (c) territories that may be 1) Andaman and Nicobar Islands–1956,
acquired by the Government of India at any 2) Delhi–1956,
time. 3) Lakshadweep–1956,
4) Daman and Diu and Dadra and Nagar
At present, there are twenty-eight states, eight Haveli–2019,
union territories and no acquired territories. 5) Puducherry–1962,
6) Chandigarh–1966,
The states are the members of the federal 7) Jammu and Kashmir–2019 and
system in India and share a distribution of 8) Ladakh–2019.
power with the Centre. The union territories, on
the other hand, are those areas which are under Till 1973, Lakshadweep was known by the name
the direct control and administration of the of Laccadive, Minicoy and Amindivi Islands.
Central government. Hence, they are also known
as ‘centrally administered territories’. In 1992, Delhi was redesignated as the National
Capital Territory of Delhi.
‘In this way, existence of these territories
constitutes a conspicuous departure from Till 2006, Puducherry was known as
federalism in India; the Government of India is Pondicherry.
plainly unitary in so far as the relationship
between New Delhi and these Central enclaves The union territories have been created for a
is concerned’. variety of reasons.

Creation of Union Territories These are mentioned below:

During the British Rule, certain areas were • Political and administrative consideration–
constituted as ‘scheduled districts’ in 1874. Delhi and Chandigarh.
Later, they came to be known as ‘chief • Cultural distinctiveness–Puducherry, Dadra
commissioners provinces’. and Nagar Haveli, and Daman and Diu.
• Strategic importance–Andaman and Nicobar
After independence, they were placed in the Islands and Lakshadweep.
category of Part ‘C’ States and Part ‘D’ • Special treatment and care of the backward
Territories. and tribal people–Mizoram, Manipur,
Tripura and Arunachal Pradesh which later
In 1956, they were constituted as the ‘union became states.
territories’ by the 7th Constitutional
Amendment Act (1956) and the States In 2019, the erstwhile state of Jammu and
Reorganisation Act (1956). Gradually, some of Kashmir was bifurcated into two separate union
these union territories have been elevated to territories, namely, the Union territory of
statehood. Thus, Himachal Pradesh, Manipur, Jammu and Kashmir, and the Union territory of
Tripura, Mizoram, Arunachal Pradesh and Goa, Ladakh.
which are states today were formerly union
territories. While introducing the Jammu and Kashmir
Reorganisation Bill, 2019, in the Parliament, the
On the other hand, the territories that were central government gave the following reasons
acquired from the Portuguese (Goa, Daman and for the creation of these two new union
Diu, and Dadra and Nagar Haveli) and the territories:
French (Puducherry) were constituted as the
union territories. • The Ladakh division of the state of Jammu
and Kashmir has a large area but is sparsely
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populated with a very difficult terrain. There territories does not diminish the supreme
has been a long pending demand of people of control of the president and Parliament over
Ladakh, to give it the status of a Union them.
territory to enable them to realize their
aspirations. The Union territory of Ladakh The Parliament can make laws on any subject of
will be without a legislature. the three lists (including the State List) for the
• Further, keeping in view the prevailing union territories. This power of Parliament also
internal security situation, fuelled by cross extends to Puducherry, Delhi and Jammu and
border terrorism in the existing state of Kashmir, which have their own local
Jammu and Kashmir, a separate Union legislatures.
territory for Jammu and Kashmir is being
created. The Union territory of Jammu and This means that, the legislative power of
Kashmir will be with a legislature. Parliament for the union territories on subjects
of the State List remain unaffected even after
Administration of Union Territories establishing a local legislature for them.

Articles 239 to 241 in Part VIII of the But, the legislative assembly of Puducherry can
Constitution deal with the union territories. also make laws on any subject of the State List
and the Concurrent List.
Even though all the union territories belong to
one category, there is no uniformity in their Similarly, the legislative assembly of Delhi can
administrative system. make laws on any subject of the State List
(except public order, police and land) and the
Every union territory is administered by the Concurrent List.
President acting through an administrator
appointed by him. An administrator of a union Likewise, the legislative assembly of Jammu and
territory is an agent of the President and not Kashmir can make laws on any subject of the
head of state like a governor. State List (except public order and police) and
the Concurrent List.
The President can specify the designation of an
administrator; it may be Lieutenant Governor or The President can make regulations for the
Chief Commissioner or Administrator. peace, progress and good government of the
Andaman and Nicobar Islands, Lakshadweep,
At present, it is Lieutenant Governor in the case Dadra and Nagar Haveli, Daman and Diu and
of Delhi, Puducherry, Andaman and Nicobar Ladakh.
Islands, Jammu and Kashmir and Ladakh and
Administrator in the case of Chandigarh, Dadra In the case of Puducherry also, the President can
and Nagar Haveli, Daman and Diu and legislate by making regulations but only when
Lakshadweep. the assembly is suspended or dissolved.

The President can also appoint the governor of A regulation made by the President has the
a state as the administrator of an adjoining same force and effect as an act of Parliament and
union territory. can also repeal or amend any act of Parliament
in relation to these union territories.
In that capacity, the governor is to act
independently of his council of ministers. The Parliament can establish a high court for a
union territory or put it under the jurisdiction of
The Union Territories of Puducherry (in 1963), the high court of adjacent state.
Delhi (in 1992) and Jammu and Kashmir (in
2019) are provided with a legislative assembly Delhi is the only union territory that has a high
and a council of ministers headed by a chief court of its own (since 1966).
minister.
The Bombay High Court has got jurisdiction
The remaining five union territories do not have over union territory of, Daman and Diu and
such popular political institutions. But, the Dadra and Nagar Haveli.
establishment of such institutions in the union
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Andaman and Nicobar Islands, Chandigarh, The council of ministers is collectively

Lakshadweep and Puducherry are placed under responsible to the assembly.
the Calcutta, Punjab and Haryana, Kerala, and
Madras High Courts respectively. The council of ministers headed by the chief
minister aid and advise the lt. governor in the
The Jammu and Kashmir High Court is the exercise of his functions except in so far as he is
common high court for the two union territories required to act in his discretion.
of Jammu and Kashmir, and Ladakh.
In the case of difference of opinion between the
The Constitution does not contain any separate lt. governor and his ministers, the lt. governor is
provisions for the administration of acquired to refer the matter to the president for decision
territories. But, the constitutional provisions for and act accordingly.
the administration of union territories also
apply to the acquired territories. When a situation arises in which the
administration of the territory cannot be carried
Special Provisions for Delhi on in accordance with the above provisions, the
president can suspend their (above provisions)
The 69th Constitutional Amendment Act of 1991 operation and make the necessary incidental or
provided a special status to the Union Territory consequential provisions for administering the
of Delhi, and redesignated it the National Capital territory.
Territory of Delhi and designated the
administrator of Delhi as the lieutenant (lt.) In brief, in case of failure of constitutional
governor. machinery, the president can impose his rule in
the territory. This can be done on the report of
It created a legislative assembly and a council of the lt. governor or otherwise.
ministers for Delhi.
This provision resembles Article 356 which
Previously, Delhi had a metropolitan council deals with the imposition of President’s Rule in
and an executive council. the states.
The strength of the assembly is fixed at 70 The lt. governor is empowered to promulgate
members, directly elected by the people. The ordinances during recess of the assembly. An
elections are conducted by the election ordinance has the same force as an act of the
commission of India. assembly. Every such ordinance must be
approved by the assembly within six weeks
The assembly can make laws on all the matters from its reassembly. He can also withdraw an
of the State List and the Concurrent List except ordinance at any time. But, he cannot
the three matters of the State List, that is, public promulgate an ordinance when the assembly is
order, police and land. But, the laws of dissolved or suspended. Further, no such
Parliament prevail over those made by the ordinance can be promulgated or withdrawn
Assembly. without the prior permission of the President.
The strength of the council of ministers is fixed Advisory Committees of Union
at ten per cent of the total strength of the
Territories
assembly, that is, seven–one chief minister and
six other ministers. Under the Government of India (Allocation of
Business) Rules 1961, Ministry of Home Affairs
The chief minister is appointed by the President
is the nodal ministry for all matters of Union
(not by the lt. governor).
Territories relating to legislation, finance and
The other ministers are appointed by the budget, services and appointment of Lt.
president on the advice of the chief minister. Governors and Administrators.

The ministers hold office during the pleasure of All the five UTs without legislature have the
the president. forum of Home Minister’s Advisory Committee

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(HMAC)/Administrator’s Advisory Committee Comparison between States and Union

(AAC). Territories

While HMAC is chaired by the Union Home States Union Territories

Minister, AAC is chaired by the Administrator of
the concerned UTs. Their relationship Their relationship
with Centre is with Centre is
The Member of Parliament and elected federal. unitary.
members from the local bodies e.g. District
Panchayats and Municipal Council of the They share a They are under the
respective UTs are members of these distribution of power direct control and
committees among others. with the Centre. administration of the
Centre.
The Committee discusses the general issues
relating to social and economic development of They have autonomy. They do not have any
the UTs. autonomy.
Administrative System of Union Territories
There is uniformity There is no
in their uniformity in their
administrative set- administrative set-
up. up.

Their executive head Their executive head

is known as is known by various
governor. designations–
administrator or
lieutenant governor
or chief
commissioner.

A governor is a An administrator is
constitutional head an agent of the
of the state. president.

Parliament cannot Parliament can make

make laws on the laws on any subject
subjects of the state of the three lists in
list in relation to the relation to the union
states except under territories.
extraordinary
circumstances.

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Chapter 41 – Scheduled and Tribal Areas

Article 244 in Part X of the Constitution  Tribes Advisory Council: Each state having
envisages a special system of administration for scheduled areas has to establish a tribes
certain areas designated as ‘scheduled areas’ advisory council to advise on welfare and
and ‘tribal areas’. advancement of the scheduled tribes. It is to
consist of 20 members, three-fourths of
The Fifth Schedule of the Constitution deals with whom are to be the representatives of the
the administration and control of scheduled scheduled tribes in the state legislative
areas and scheduled tribes in any state except assembly. A similar council can also be
the four states of Assam, Meghalaya, Tripura established in a state having scheduled
and Mizoram. tribes but not scheduled areas therein, if the
president so directs.
The Sixth Schedule of the Constitution, on the
other hand, deals with the administration of the  Law applicable to Scheduled Areas: The
tribal areas in the four north-eastern states of governor is empowered to direct that any
Assam, Meghalaya, Tripura and Mizoram. particular act of Parliament or the state
Administration of Scheduled Areas legislature does not apply to a scheduled
area or apply with specified modifications
‘The scheduled areas are treated differently and exceptions. He can also make
from the other areas in the country because they regulations for the peace and good
are inhabited by ‘aboriginals’ who are socially government of a scheduled area after
and economically rather backward, and special consulting the tribes advisory council. Such
efforts need to be made to improve their regulations may prohibit or restrict the
condition. Therefore, the whole of the normal transfer of land by or among members of the
administrative machinery operating in a state is scheduled tribes, regulate the allotment of
not extended to the scheduled areas and the land to members of the scheduled tribes and
Central government has somewhat greater regulate the business of money-lending in
responsibility for these areas. relation to the scheduled tribes. Also, a
regulation may repeal or amend any act of
The various features of administration Parliament or the state legislature, which is
contained in the Fifth Schedule are as follows: applicable to a scheduled area. But, all such
regulations require the assent of the
 Declaration of Scheduled Areas: The president.
president is empowered to declare an area
to be a scheduled area. He can also increase The Constitution requires the president to
or decrease its area, alter its boundary lines, appoint a commission to report on the
rescind such designation or make fresh administration of the scheduled areas and the
orders for such redesignation on an area in welfare of the scheduled tribes in the states. He
consultation with the governor of the state can appoint such a commission at any time but
concerned. compulsorily after ten years of the
commencement of the Constitution. Hence, a
 Executive Power of State and Centre: The commission was appointed in 1960. It was
executive power of a state extends to the headed by U.N. Dhebar and submitted its report
scheduled areas therein. But the governor in 1961. After four decades, the second
has a special responsibility regarding such commission was appointed in 2002 under the
areas. He has to submit a report to the chairmanship of Dilip Singh Bhuria. It submitted
president regarding the administration of its report in 2004.
such areas, annually or whenever so
required by the president. The executive
Administration of Tribal Areas
power of the Centre extends to giving
The Constitution, under Sixth Schedule,
directions to the states regarding the
contains special provisions for the
administration of such areas.
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administration of tribal areas in the four north- the governor. Each autonomous region also
eastern states of Assam, Meghalaya, Tripura and has a separate regional council.
Mizoram. • The district and regional councils administer
the areas under their jurisdiction. They can
The rationality behind the special arrangements make laws on certain specified matters like
in respect of only these four states lies in the land, forests, canal water, shifting
following: cultivation, village administration,
inheritance of property, marriage and
“The tribes in Assam, Meghalaya, Tripura and divorce, social customs and so on. But all
Mizoram have not assimilated much the life and such laws require the assent of the governor.
ways of the other people in these states. • The district and regional councils within
their territorial jurisdictions can constitute
These areas have hitherto been anthropological
village councils or courts for trial of suits and
specimens. The tribal people in other parts of
cases between the tribes. They hear appeals
India have more or less adopted the culture of
from them. The jurisdiction of high court
the majority of the people in whose midst they
over these suits and cases is specified by the
live. The tribes in Assam, Meghalaya, Tripura
governor.
and Mizoram, on the other hand, still have their
roots in their own culture, customs and • The district council can establish, construct
civilization. These areas are, therefore, treated or manage primary schools, dispensaries,
differently by the Constitution and sizeable markets, ferries, fisheries, roads and so on in
amount of autonomy has been given to these the district. It can also make regulations for
people for self-government. the control of money lending and trading by
non-tribals. But, such regulations require
The various features of administration the assent of the governor.
contained in the Sixth Schedule are as follows: • The district and regional councils are
empowered to assess and collect land
• The tribal areas in the four states of Assam, revenue and to impose certain specified
Meghalaya, Tripura and Mizoram have been taxes.
constituted as autonomous districts. But, • The acts of Parliament or the state
they do not fall outside the executive legislature do not apply to autonomous
authority of the state concerned. districts and autonomous regions or apply
• The governor is empowered to organise and with specified modifications and exceptions.
re-organise the autonomous districts. Thus,
he can increase or decrease their areas or The power of direction, in this regard, lies either
change their names or define their with the president or governor. Thus, in the case
boundaries and so on. of Assam, it lies with the Governor, both in respect
• If there are different tribes in an of acts of Parliament or state legislature. In the
autonomous district, the governor can case of Meghalaya, Tripura and Mizoram, it lies
divide the district into several autonomous with the president in respect of acts of Parliament
regions. and governor in respect of acts of state
• Each autonomous district has a district legislature.
council consisting of 30 members, of whom
• The governor can appoint a commission to
four are nominated by the governor and the
examine and report on any matter relating
remaining 26 are elected on the basis of
to the administration of the autonomous
adult franchise. The elected members hold
districts or regions. He may dissolve a
office for a term of five years (unless the
district or regional council on the
council is dissolved earlier) and nominated
recommendation of the commission.
members hold office during the pleasure of
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Chapter 42 – Constitutional Bodies

Election Commission Since its inception in 1950 and till 15 October

The Election Commission is a permanent and an 1989, the election commission functioned as a
independent body established by the single member body consisting of the Chief
Constitution of India directly to ensure free and Election Commissioner.
fair elections in the country. On 16 October 1989, the president appointed
Article 324 of the Constitution provides that the two more election commissioners to cope with
power of superintendence, direction and the increased work of the election commission
control of elections to parliament, state on account of lowering of the voting age from 21
legislatures, the office of president of India and to 18 years. Thereafter, the Election
the office of vice-president of India shall be Commission functioned as a multimember body
vested in the election commission. Thus, the consisting of three election commissioners.
Election Commission is an all-India body in the However, the two posts of election
sense that it is common to both the Central commissioners were abolished in January 1990
government and the state governments. and the Election Commission was reverted to
the earlier position. Again in October 1993, the
It must be noted here that the election president appointed two more election
commission is not concerned with the elections commissioners. Since then and till today, the
to panchayats and municipalities in the states. Election Commission has been functioning as a
For this, the Constitution of India provides for a multi-member body consisting of three election
separate State Election Commission. commissioners.
Composition The chief election commissioner and the two
Article 324 of the Constitution has made the other election commissioners have equal
following provisions with regard to the powers and receive equal salary, allowances
composition of election commission: and other perquisites, which are similar to those
• The Election Commission shall consist of the of a judge of the Supreme Court.
chief election commissioner and such In case of difference of opinion amongst the
number of other election commissioners, if Chief Election Commissioner and/or two other
any, as the president may from time to time election commissioners, the matter is decided
fix. by the Commission by majority.
• The appointment of the chief election
commissioner and other election They hold office for a term of six years or until
commissioners shall be made by the they attain the age of 65 years, whichever is
president. earlier. They can resign at any time or can also
• When any other election commissioner is so be removed before the expiry of their term.
appointed, the chief election commissioner Independence
shall act as the chairman of the election Article 324 of the Constitution has made the
commission. following provisions to safeguard and ensure
• The president may also appoint after the independent and impartial functioning of
consultation with the election commission the Election Commission:
such regional commissioners as he may
consider necessary to assist the election • The chief election commissioner is provided
commission. with the security of tenure. He cannot be
• The conditions of service and tenure of office removed from his office except in same
of the election commissioners and the manner and on the same grounds as a judge
regional commissioners shall be determined of the Supreme Court. In other words, he can
by the president. be removed by the president on the basis of
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a resolution passed to that effect by both the • To notify the dates and schedules of
Houses of Parliament with special majority, elections and to scrutinise nomination
either on the ground of proved papers.
misbehaviour or incapacity. • To grant recognition to political parties and
• Thus, he does not hold his office till the allot election symbols to them.
pleasure of the president, though he is • To act as a court for settling disputes related
appointed by him. to granting of recognition to political parties
• The service conditions of the chief election and allotment of election symbols to them.
commissioner cannot be varied to his • To appoint officers for inquiring into
disadvantage after his appointment. disputes relating to electoral arrangements.
• Any other election commissioner or a • To determine the code of conduct to be
regional commissioner cannot be removed observed by the parties and the candidates
from office except on the recommendation at the time of elections.
of the chief election commissioner. • To prepare a roster for publicity of the
policies of the political parties on radio and
Though the constitution has sought to safeguard
TV in times of elections.
and ensure the independence and impartiality
of the Election Commission, some flaws can be • To advise the president on matters relating
noted, viz., to the disqualifications of the members of
Parliament.
• The Constitution has not prescribed the • To advise the governor on matters relating
qualifications (legal, educational, to the disqualifications of the members of
administrative or judicial) of the members of state legislature.
the Election Commission. • To cancel polls in the event of rigging, booth
• The Constitution has not specified the term capturing, violence and other irregularities.
of the members of the Election Commission. • To request the president or the governor for
requisitioning the staff necessary for
conducting elections.
• To supervise the machinery of elections
throughout the country to ensure free and
• The Constitution has not debarred the fair elections.
retiring election commissioners from any • To advise the president whether elections
further appointment by the government. can be held in a state under president’s rule
Powers And Functions in order to extend the period of emergency
The powers and functions of the Election after one year.
Commission with regard to elections to the • To register political parties for the purpose
Parliament, state legislatures and offices of of elections and grant them the status of
President and Vice-President can be classified national or state parties on the basis of their
into three categories, viz, poll performance.

• Administrative The Election Commission is assisted by deputy

election commissioners. They are drawn from
• Advisory
the civil service and appointed by the
• Quasi-Judicial
commission with tenure system. They are
In detail, these powers and functions are: assisted, in turn, by the secretaries, joint
secretaries, deputy secretaries and under
• To determine the territorial areas of the
secretaries posted in the secretariat of the
electoral constituencies throughout the
commission.
country on the basis of the Delimitation
Commission Act of Parliament. At the state level, the Election Commission is
• To prepare and periodically revise electoral assisted by the chief electoral officer who is
rolls and to register all eligible voters. appointed by the chief election commissioner in
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consultation with the state government. Below They can also be removed before the expiry of
this, at the district level, the collector acts as the their term by the president in the manner as
district returning officer. He appoints a provided in the Constitution.
returning officer for every constituency in the
The President can appoint one of the members
district and presiding officer for every polling
of the UPSC as an acting chairman in the
booth in the constituency.
following two circumstances:
Union Public Service Commission • When the office of the chairman falls vacant;
The Union Public Service Commission (UPSC) is
or
the central recruiting agency in India. It is an
• When the chairman is unable to perform his
independent constitutional body in the sense
functions due to absence or some other
that it has been directly created by the
reason.
Constitution.
The acting chairman functions till a person
Articles 315 to 323 in Part XIV of the
appointed as chairman enters on the duties of
Constitution contain elaborate provisions
the office or till the chairman is able to resume
regarding the composition, appointment and
his duties.
removal of members along with the
independence, powers and functions of the Removal
UPSC. The President can remove the chairman or any
other member of UPSC from the office under the
Composition
following circumstances:
The UPSC consists of a chairman and other
members appointed by the president of India. • If he is adjudged an insolvent (that is, has
gone bankrupt);
The Constitution, without specifying the
• If he engages, during his term of office, in any
strength of the Commission has left the matter
paid employment outside the duties of his
to the discretion of the president, who
office; or
determines its composition.
• If he is, in the opinion of the president, unfit
Usually, the Commission consists of nine to to continue in office by reason of infirmity of
eleven members including the chairman. mind or body.
Further, no qualifications are prescribed for the In addition to these, the president can also
Commission’s membership except that one-half remove the chairman or any other member of
of the members of the Commission should be UPSC for misbehaviour. However, in this case,
such persons who have held office for at least the president has to refer the matter to the
ten years either under the Government of India Supreme Court for an enquiry. If the Supreme
or under the government of a state. Court, after the enquiry, upholds the cause of
removal and advises so, the president can
The Constitution also authorises the president
remove the chairman or a member.
to determine the conditions of service of the
chairman and other members of the Under the provisions of the Constitution, the
Commission. advise tendered by the Supreme Court in this
regard is binding on the president.
The chairman and members of the Commission
hold office for a term of six years or until they During the course of enquiry by the Supreme
attain the age of 65 years, whichever is earlier. Court, the president can suspend the chairman
or the member of UPSC.
However, they can relinquish their offices at any
time by addressing their resignation to the Defining the term ‘misbehaviour’ in this context,
president. the Constitution states that the chairman or any
other member of the UPSC is deemed to be
guilty of misbehaviour if he
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• is concerned or interested in any contract or operating schemes of joint recruitment for

agreement made by the Government of India any services for which candidates
or the government of a state, or possessing special qualifications are
• participates in any way in the profit of such required.
contract or agreement or in any benefit • It serves all or any of the needs of a state on
therefrom otherwise than as a member and the request of the state governor and with
in common with other members of an the approval of the president of India.
incorporated company. • It is consulted on the following matters
related to personnel management:
Independence
o All matters relating to methods of
The Constitution has made the following
recruitment to civil services and for civil
provisions to safeguard and ensure the
posts.
independent and impartial functioning of the
o The principles to be followed in making
UPSC:
appointments to civil services and posts
• The chairman or a member of the UPSC can and in making promotions and transfers
be removed from office by the president only from one service to another.
in the manner and on the grounds o The suitability of candidates for
mentioned in the Constitution. Therefore, appointments to civil service and posts;
they enjoy security of tenure. for promotions and transfers from one
• The conditions of service of the chairman or service another; and appointments by
a member, though determined by the transfer or deputation. The concerned
president, cannot be varied to his departments make recommendations for
disadvantage after his appointment. promotions and request the UPSC to
• The entire expenses including the salaries, ratify them.
allowances and pensions of the chairman o All disciplinary matters affecting a
and members of the UPSC are charged on the person serving under the Government of
Consolidated Fund of India. Thus, they are India in a civil capacity including
not subject to vote of Parliament. memorials petitions relating to such
• The chairman of UPSC (on ceasing to hold matters. These include:
office) is not eligible for further employment ▪ Censure (Severe disapproval)
in the Government of India or a state. ▪ Withholding of increments
• A member of UPSC (on ceasing to hold office) ▪ Withholding of promotions
is eligible for appointment as the chairman ▪ Recovery of pecuniary loss
of UPSC or a State Public Service ▪ Reduction to lower service or rank
Commission (SPSC), but not for any other (Demotion)
employment in the Government of India or a ▪ Compulsory retirement
state. ▪ Removal from service
• The chairman or a member of UPSC is (after ▪ Dismissal from service
having completed his first term) not eligible • Any claim for reimbursement of legal
for reappointment to that office (i.e., not expenses incurred by civil servant in
eligible for second term). defending legal proceedings instituted
again him in respect of acts done in the
Functions execution of his official duties.
The UPSC performs the following functions: • Any claim for the award of a pension in
• It conducts examinations for appointments respect of injuries sustained by a person
to the all-India services, Central services and while serving under the Government of
public services of the centrally administered India and any question as to the amount
territories. of any such award.
• It assists the states (if requested by two or
more states to do so) in framing and
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• Matters of temporary appointments for • While making reservations of appointments

period exceeding one year and on or posts in favour of any backward class of
regularisation of appointments. citizens.
• Matters related to grant of extension of • While taking into consideration the claims of
service and re- employment of certain scheduled castes and scheduled tribes in
retired civil servants. making appointments to services and posts.
• Any other matter related to personnel • With regard to the selections for
management. chairmanship or membership of
commissions or tribunals, posts of the
The Supreme Court has held that if the
highest diplomatic nature and a bulk of
government fails to consult UPSC in the matters
group C and group D services.
(mentioned above), the aggrieved public
• With regard to the selection for temporary
servant has no remedy in a court. In other
or officiating appointment to a post if the
words, the court held that any irregularity in
person appointed is not likely to hold the
consultation with the UPSC or acting without
post for more than a year.
consultation does not invalidate the decision of
the government. Thus, the provision is directory The president can exclude posts, services and
and not mandatory. matters from the purview of the UPSC. The
Constitution states that the president, in respect
Similarly, the court held that a selection by the
to the all-India services and Central services and
UPSC does not confer any right to the post upon
posts may make regulations specifying the
the candidate. However, the government is to
matters in which, it shall not be necessary for
act fairly and without arbitrariness or mala
UPSC to be consulted. But all such regulations
fides.
made by the president shall be laid before each
The additional functions relating to the services House of Parliament for at least 14 days. The
of the Union can be conferred on UPSC by the Parliament can amend or repeal them.
Parliament. It can also place the personnel
Role
system of any authority, corporate body or
The Constitution visualises the UPSC to be the
public institution within the jurisdiction of the
‘watch-dog of merit system’ in India. It is
UPSC. Hence the jurisdiction of UPSC can be
concerned with the recruitment to the all-India
extended by an act made by the Parliament.
services and Central services–group A and
The UPSC presents, annually, to the president a group B and advises the government, when
report on its performance. The President places consulted, on promotion and disciplinary
this report before both the Houses of matters.
Parliament, along with a memorandum
It is not concerned with the classification of
explaining the cases where the advice of the
services, pay and service conditions, cadre
Commission was not accepted and the reasons
management, training, and so on. These matters
for such non-acceptance. All such cases of non-
are handled by the Department of Personnel
acceptance must be approved by the
and Training–one of the three departments of
Appointments Committee of the Union cabinet.
the Ministry of Personnel, Public Grievances and
An individual ministry or department has no
Pensions. Therefore, UPSC is only a central
power to reject the advice of the UPSC.
recruiting agency while the Department of
Limitations Personnel and Training is the central personnel
The following matters are kept outside the agency in India.
functional jurisdiction of the UPSC. In other
The role of UPSC is not only limited, but also
words, the UPSC is not consulted on the
recommendations made by it are only of
following matters:
advisory nature and hence, not binding on the
government. It is upto the Union government to
accept or reject that advise.
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The only safeguard is the answerability of the attain the age of 62 years, whichever is earlier
government to the Parliament for departing (in the case of UPSC, the age limit is 65 years).
from the recommendation of the Commission. However, they can relinquish their offices at any
Further, the government can also make rules time by addressing their resignation to the
which regulate the scope of the advisory governor.
functions of UPSC.
The governor can appoint one of the members
The emergence of Central Vigilance Commission of the SPSC as an acting chairman in the
(CVC) in 1964 affected the role of UPSC in following two circumstances:
disciplinary matters. This is because both are
• When the office of the chairman falls vacant;
consulted by the government while taking
or
disciplinary action against a civil servant. The
• When the chairman is unable to perform his
problem arises when the two bodies tender
conflicting advise. functions due to absence or some other
reason.
However, the UPSC, being an independent
constitutional body, has an edge over the CVC, The acting chairman functions till the person
which is created by an executive resolution of appointed as chairman enters on the duties of
the Government of India and conferred a the office or till the chairman is able to resume
statutory status in October 2003. his duties.
Removal
State Public Service Commission
Although the chairman and members of a SPSC
Parallel to the Union Public Service Commission
are appointed by the governor, they can be
(UPSC) at the Centre, there is a State Public
removed only by the president (and not by the
Service Commission (SPSC) in a state.
governor). The president can remove them on
The same set of Articles (i.e., 315 to 323 in Part the same grounds and in the same manner as he
XIV) of the Constitution also deal with the can remove a chairman or a member of the
composition, appointment and removal of UPSC. Thus, he can remove him under the
members, power and functions and following circumstances:
independence of a SPSC.
• If he is adjudged an insolvent (i.e., has gone
Composition bankrupt); or
A State Public Service Commission consists of a • If he engages, during his term of office, in any
chairman and other members appointed by the paid employment outside the duties of his
governor of the state. office; or
• If he is, in the opinion of the president, unfit
The Constitution does not specify the strength
to continue in office by reason of infirmity of
of the Commission but has left the matter to the
mind or body.
discretion of the Governor.
In addition to these, the president can also
Further, no qualifications are prescribed for the
remove the chairman or any other member of
commission’s membership except that one-half
SPSC for misbehaviour. However, in this case,
of the members of the commission should be
the president has to refer the matter to the
such persons who have held office for at least
Supreme Court for an enquiry.
ten years either under the government of India
or under the Government of a state. If the Supreme Court, after the enquiry, upholds
the cause of removal and advises so, the
The Constitution also authorises the governor to
president can remove the chairman or a
determine the conditions of service of the
member.
chairman and members of the Commission.
Under the provisions of the Constitution, the
The chairman and members of the Commission
advise tendered by the Supreme Court in this
hold office for a term of six years or until they
regard is binding on the president.
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However, during the course of enquiry by the not for any other employment under the
Supreme Court, the governor can suspend the Government of India or a state.
concerned chairman or member, pending the • The chairman or a member of a SPSC is (after
final removal order of the president on receipt having completed his first term) not eligible
of the report of the Supreme Court. for reappointment to that office (that is, not
eligible for second term).
Further, the Constitution has also defined the
term ‘misbehaviour’ in this context. The Functions
Constitution states that the chairman or any A SPSC performs all those functions in respect of
other member of a SPSC is deemed to be guilty the state services as the UPSC does in relation to
of misbehaviour, if he the Central services:
• is concerned or interested in any contract or • It conducts examinations for appointments
agreement made by the Government of India to the services of the state.
or the government of a state, or • It is consulted on the following matters
• participates in any way in the profit of such related to personnel management:
contract or agreement or in any benefit o All matters relating to methods of
therefrom otherwise than as a member and recruitment to civil services and for civil
in common with other members of an posts.
incorporated company. o The principles to be followed in making
appointments to civil services and posts
Independence
and in making promotions and transfers
As in the case of UPSC, the Constitution has
from one service to another.
made the following provisions to safeguard and
o The suitability of candidates for
ensure the independent and impartial
appointments to civil services and posts;
functioning of a SPSC:
for promotions and transfers from one
• The chairman or a member of a SPSC can be service another; and appointments by
removed from office by the president only in transfer or deputation. The concerned
the manner and on the grounds mentioned departments make recommendations for
in the Constitution. Therefore, they enjoy the promotions and request the SPSC to
security of tenure. ratify them.
• The conditions of service of the chairman or o All disciplinary matters affecting a
a member, though determined by the person serving under the government of
governor, cannot be varied to his the state in a civil capacity including
disadvantage after his appointment. memorials petitions relating to such
• The entire expense including the salaries, matters. These include:
allowances and pensions of the chairman ▪ Censure (severe disapproval)
and members of a SPSC are charged on the ▪ Withholding of increments
consolidated fund of the state. Thus, they are ▪ Withholding of promotions
not subject to vote of the state legislature. ▪ Recovery of pecuniary loss
• The chairman of a SPSC (on ceasing to hold ▪ Reduction to lower service or rank
office) is eligible for appointment as the (demotion)
chairman or a member of the UPSC or as the ▪ Compulsory retirement
chairman of any other SPSC, but not for any ▪ Removal from service
other employment under the Government of ▪ Dismissal from service
India or a state. o Any claim for reimbursement of legal
• A member of a SPSC (on ceasing to hold expenses incurred by civil servant in
office) is eligible for appointment as the defending legal proceedings instituted
chairman or a member of the UPSC, or as the against him in respect of acts done in the
chairman of that SPSC or any other SPSC, but execution of his official duties.

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o Any claim for the award of a pension in • While taking into consideration the claims of
respect of injuries sustained by a person scheduled castes and scheduled tribes in
while serving under the government the making appointments to services and posts.
state and any question as to the amount
The governor can exclude posts, services and
of any such award.
matters from the purview of the SPSC.
o Any other matter related to the
personnel management. The Constitution states that the governor, in
respect to the state services and posts may make
The Supreme Court has held that if the
regulations specifying the matters in which, it
government fails to consult the SPSC in these
shall not be necessary for SPSC to be consulted.
matters, the aggrieved public servant has no
remedy in a court. But all such regulations made by the governor
shall be laid before each House of the state
In other words, the court held that any
legislature for at least 14 days.
irregularity in consultation with the SPSC or
acting without consultation does not invalidate The state legislature can amend or repeal them.
the decision of the government.
Role
Thus, the provision is directory and not The Constitution visualises the SPSC to be the
mandatory. Similarly, the court held that a ‘watchdog of merit system’ in the state.
selection by the SPSC does not confer any right
to the post upon the candidate. However, the It is concerned with the recruitment to the state
government is to act fairly and without services and advises the government, when
arbitrariness or malafides. consulted, on promotion and disciplinary
matters.
The additional functions relating to the services
of the state can be conferred on SPSC by the It is not concerned with the classification of
state legislature. services, pay and service conditions, cadre
management, training and so on. These matters
It can also place the personnel system of any are handled by the Department of Personnel or
local authority, corporate body or public the General Administration Department.
institution within the jurisdiction of the SPSC.
Therefore, the SPSC is only a central recruiting
Hence the jurisdiction of SPSC can be extended agency in the state while the Department of
by an Act made by the state legislature. Personnel or the General Administration
Department is the central personnel agency in
The SPSC presents, annually, to the governor a
the state.
report on its performance. The governor places
this report before both the Houses of the state The role of SPSC is not only limited, but also
legislature, along with a memorandum recommendations made by it are only of
explaining the cases where the advice of the advisory nature and hence, not binding on the
Commission was not accepted and the reasons government. It is up to the state government to
for such non-acceptance. accept or reject that advice.
Limitations The only safeguard is the answerability of the
The following matters are kept outside the government to the state legislature for
functional jurisdiction of the SPSC. departing from the recommendation of the
Commission.
In other words, the SPSC is not consulted on the
following matters: Further, the government can also make rules
which regulate the scope of the advisory
• While making reservations of appointments
functions of SPSC.
or posts in favour of any backward class of
citizens. Also, the emergence of State Vigilance
Commission (SVC) in 1964 affected the role of
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SPSC in disciplinary matters. This is because As provided by the Government of India Act of
both are consulted by the government while 1919, a Central Public Service Commission was
taking disciplinary action against a civil servant. set up in 1926 and entrusted with the task of
The problem arises when the two bodies tender recruiting civil servants.
conflicting advice.
The Government of India Act of 1935 provided
However, the SPSC, being an independent for the establishment of not only a Federal
constitutional body, has an edge over the SVC. Public Service Commission but also a Provincial
Public Service Commission and Joint Public
Finally, the SPSC is consulted by the governor
Service Commission for two or more provinces.
while framing rules for appointment to judicial
service of the state other than the posts of Finance Commission
district judges. In this regard, the concerned Article 280 of the Constitution of India provides
state high court is also consulted. for a Finance Commission as a quasi-judicial
body.
Joint State Public Service Commission
The Constitution makes a provision for the It is constituted by the president of India every
establishment of a Joint State Public Service fifth year or at such earlier time as he considers
Commission (JSPSC) for two or more states. necessary.
While the UPSC and the SPSC are created Composition
directly by the Constitution, a JSPSC can be The Finance Commission consists of a chairman
created by an act of Parliament on the request of and four other members to be appointed by the
the state legislatures concerned. Thus, a JSPSC is president. They hold office for such period as
a statutory and not a constitutional body. The specified by the president in his order. They are
two states of Punjab and Haryana had a JSPSC eligible for reappointment.
for a short period, after the creation of Haryana
The Constitution authorises the Parliament to
out of Punjab in 1966.
determine the qualifications of members of the
The chairman and members of a JSPSC are commission and the manner in which they
appointed by the president. should be selected.
They hold office for a term of six years or until Accordingly, the Parliament has specified the
they attain the age of 62 years, whichever is qualifications of the chairman and members of
earlier. the commission.
They can be suspended or removed by the The chairman should be a person having
president. experience in public affairs and the four other
members should be selected from amongst the
They can also resign from their offices at any
following:
time by submitting their resignation letters to
the president. • A judge of high court or one qualified to be
appointed as one.
The number of members of a JSPSC and their
• A person who has specialised knowledge of
conditions of service are determined by the
finance and accounts of the government.
president.
• A person who has wide experience in
A JSPSC presents its annual performance report financial matters and in administration.
to each of the concerned state governors. Each • A person who has special knowledge of
governor places the report before the state economics.
legislature.
Functions
The UPSC can also serve the needs of a state on The Finance Commission is required to make
the request of the state governor and with the recommendations to the president of India on
approval of the president. the following matters:
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• The distribution of the net proceeds of taxes turned down by the Government of India unless
to be shared between the Centre and the there are very compelling reasons”.
states, and the allocation between the states
The Constitution of India envisages the Finance
of the respective shares of such proceeds.
commission as the balancing wheel of fiscal
• The principles that should govern the
federalism in India. However, till 2014, its role
grants-in-aid to the states by the Centre (i.e.,
in the Centre-state fiscal relations was
out of the consolidated fund of India).
undermined by the erstwhile Planning
• The measures needed to augment the
Commission, a non-constitutional and a non-
consolidated fund of a state to supplement statutory body.
the resources of the panchayats and the
municipalities in the state on the basis of the Dr. P.V. Rajamannar, the Chairman of the Fourth
recommendations made by the state finance Finance commission, highlighted the
commission. overlapping of functions and responsibilities
• Any other matter referred to it by the between the Finance Commission and the
president in the interests of sound finance. erstwhile Planning Commission in federal fiscal
transfers.
Till 1960, the commission also suggested the
grants given to the States of Assam, Bihar, In 2015, the Planning Commission was replaced
Odisha and West Bengal in lieu of assignment of by a new body called NITI Aayog (National
any share of the net proceeds in each year of Institution for Transforming India).
export duty on jute and jute products.
Finance Commissions Appointed so far
These grants were to be given for a temporary
period of ten years from the commencement of
the Constitution.
The commission submits its report to the
president. He lays it before both the Houses of
Parliament along with an explanatory
memorandum as to the action taken on its
recommendations.
Advisory Role
The recommendations made by the Finance
Commission are only of advisory nature and
hence, not binding on the government. It is up to
the Union government to implement its
recommendations on granting money to the
states.
To put it in other words, ‘It is nowhere laid down
in the Constitution that the recommendations of
the commission shall be binding upon the Source: Laxmikanth
Government of India or that it would give rise to
a legal right in favour of the beneficiary states to Goods and Services Tax Council
receive the money recommended to be offered Establishment of the Council
to them by the Commission’. The 101st Amendment Act of 2016 paved the
way for the introduction of a new tax regime
As rightly observed by Dr. P.V. Rajamannar, the
(i.e., goods and services tax - GST) in the
Chairman of the Fourth Finance Commission,
country.
“Since the Finance Commission is a
constitutional body expected to be quasi-
judicial, its recommendations should not be
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The smooth and efficient administration of this The decision is taken in accordance with the
tax requires cooperation and coordination following principles:
between the centre and the states.
• The vote of the central government shall
In order to facilitate this consultation process, have a weightage one-third of the total votes
the amendment provided for the establishment cast in that meeting.
of a Goods and Services Tax Council or the GST • The votes of all the state governments
Council. combined shall have weightage of two-
thirds of the total votes cast in that meeting.
The amendment inserted a new Article 279-A in
the Constitution. Any act or proceedings of the Council will not
become invalid on the following grounds:
This Article empowered the President to
constitute a GST Council by an order. • any vacancy or defect in the constitution of
Accordingly, the President issued the order in the Council; or
2016 and constituted the Council. • any defect in the appointment of a person as
The Secretariat of the Council is located at New a member of the Council; or
Delhi. • any procedural irregularity of the Council
not affecting the merits of the case.
The Union Revenue Secretary acts as the ex-
officio Secretary to the Council. Functions of the Council
The Council is required to make
Composition of the Council recommendations to the centre and the states
The Council is a joint forum of the centre and the on the following matters:
states and consists of the following members:
• The taxes, cesses and surcharges levied by
• The Union Finance Minister as the the centre, the states and the local bodies
Chairperson that would get merged in GST.
• The Union Minister of State in-charge of • The goods and services that may be
Revenue or Finance subjected to GST or exempted from GST.
• The Minister in-charge of Finance or • Model GST Laws, principles of levy,
Taxation or any other Minister nominated apportionment of GST levied on supplies in
by each state government the course of inter-state trade or commerce
and the principles that govern the place of
supply.
The members of the Council from the states • The threshold limit of turnover below which
have to choose one amongst themselves to be goods and services may be exempted from
the Vice-Chairperson of the Council. GST.
They can also decide his term. • The rates including floor rates with bands of
GST.
The Union Cabinet also decided to include the • Any special rate or rates for a specified
Chairperson of the Central Board of Excise and period to raise additional resources during
Customs (CBEC) as a permanent invitee (non- any natural calamity or disaster.
voting) to all proceedings of the Council. • Special provision with respect to the states
Working of the Council of Arunachal Pradesh, Assam, Jammu and
The decisions of the Council are taken at its Kashmir, Manipur, Meghalaya, Mizoram,
meetings. One-half of the total number of Nagaland, Sikkim, Tripura, Himachal
members of the Council is the quorum for Pradesh and Uttarakhand.
conducting a meeting. Every decision of the • Any other matter relating to GST, as the
Council is to be taken by a majority of not less Council may decide.
than three-fourths of the weighted votes of the
members present and voting at the meeting.
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Other Functions of the Council He was designated as the Commissioner for SCs
In addition to the above, the Council has the and STs and assigned the said duty.
following other functions:
In 1978, the Government (through a Resolution)
• The Council shall recommend the date on set up a non-statutory multimember
which the GST may be levied on petroleum Commission for SCs and STs; the Office of
crude, high speed diesel, motor spirit Commissioner for SCs and STs also continued to
(petrol), natural gas and aviation turbine exist.
fuel.
In 1987, the Government (through another
• When there is a dispute with respect to its
Resolution) modified the functions of the
recommendations or their implementation,
Commission and renamed it as the National
the Council shall establish a mechanism to
Commission for SCs and STs.
adjudicate upon the dispute:
o between the centre and one or more Later, the 65th Constitutional Amendment Act of
states; or 19905 provided for the establishment of a high-
o between the centre and any state or level multi-member National Commission for
states on one side and one or more other SCs and STs in the place of a single Special
states on the other side; or Officer for SCs and STs. This constitutional body
o between two or more states. replaced the Commissioner for SCs and STs as
• The Council has to recommend the well as the Commission set up under the
compensation to the states for loss of Resolution of 1987.
revenue arising on account of introduction
Again, the 89th Constitutional Amendment Act of
of GST for a period of five years. Based on
2003 bifurcated the combined National
this recommendation, the Parliament
Commission for SCs and STs into two separate
determines the compensation. Accordingly,
bodies, namely, National Commission for
the Parliament enacted the law in 2017.
Scheduled Castes (under Article 338) and
National Commission for SCs National Commission for Scheduled Tribes
The National Commission for Scheduled Castes (under Article 338-A).
(SCs) is a constitutional body in the sense that it The separate National Commission for SCs came
is directly established by Article 338 of the into existence in 2004. It consists of a
Constitution. chairperson, a vice-chairperson and three other
On the other hand, the other national members.
commissions like the National Commission for They are appointed by the President by warrant
Women (1992), the National Commission for under his hand and seal. Their conditions of
Minorities (1993), the National Human Rights service and tenure of office are also determined
Commission (1993) and the National by the President.
Commission for Protection of Child Rights
(2007) are statutory bodies in the sense that Functions of the Commission
they are established by acts of the Parliament. The functions of the Commission are:

Evolution of the Commission • To investigate and monitor all matters

Originally, Article 338 of the Constitution relating to the constitutional and other legal
provided for the appointment of a Special safeguards for the SCs and to evaluate their
Officer for Scheduled Castes (SCs) and working;
Scheduled Tribes (STs) to investigate all matters • To inquire into specific complaints with
relating to the constitutional safeguards for the respect to the deprivation of rights and
SCs and STs and to report to the President on safeguards of the SCs;
their working. • To participate and advise on the planning
process of socio-economic development of

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the SCs and to evaluate the progress of their • requiring the discovery and production of
development under the Union or a state; any document;
• To present to the President, annually and at • receiving evidence on affidavits;
such other times as it may deem fit, reports • requisitioning any public record from any
upon the working of those safeguards; court or office;
• To make recommendations as to the • issuing summons for the examination of
measures that should be taken by the Union witnesses and documents; and
or a state for the effective implementation of • any other matter which the President may
those safeguards and other measures for the determine.
protection, welfare and socio-economic
development of the SCs; and The Central government and the state
• To discharge such other functions in relation governments are required to consult the
to the protection, welfare and development Commission on all major policy matters
affecting the SCs.
and advancement of the SCs as the president
may specify. The Commission is also required to discharge
Report of the Commission similar functions with regard to the Anglo-
The commission presents an annual report to Indian Community as it does with respect to the
the president. It can also submit a report as and SCs.
when it thinks necessary. In other words, the Commission has to
The President places all such reports before the investigate all matters relating to the
Parliament, along with a memorandum constitutional and other legal safeguards for the
explaining the action taken on the Anglo-Indian Community and report to the
President upon their working.
recommendations made by the Commission.
The memorandum should also contain the Till 2018, the commission was also required to
reasons for the non-acceptance of any of such discharge similar functions with regard to the
recommendations. other backward classes (OBCs).
The President also forwards any report of the It was relieved from this responsibility by the
Commission pertaining to a state government to 102nd Amendment Act of 2018.
the state governor.
National Commission for STs
The governor places it before the state Like the National Commission for Schedules
legislature, along with a memorandum Castes (SCs), the National Commission for
explaining the action taken on the Scheduled Tribes (STs) is also a constitutional
recommendations of the Commission. The body in the sense that it is directly established
memorandum should also contain the reasons by Article 338-A of the Constitution.
for the non-acceptance of any of such
recommendations. Separate Commission for STs
The National Commission for SCs and STs came
Powers of the Commission into being consequent upon passing of the 65th
The Commission is vested with the power to Constitutional Amendment Act of 1990.
regulate its own procedure.
The Commission was established under Article
The Commission, while investigating any matter 338 of the Constitution with the objective of
or inquiring into any complaint, has all the monitoring all the safeguards provided for the
powers of a civil court trying a suit and in SCs and STs under the Constitution or other
particular in respect of the following matters: laws.
• summoning and enforcing the attendance of Geographically and culturally, the STs are
any person from any part of India and different from the SCs and their problems are
examining him on oath; also different from those of SCs.
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In 1999, a new Ministry of Tribal Affairs was protection, welfare and socio-economic
created to provide a sharp focus to the welfare development of the STs; and
and development of the STs. • To discharge such other functions in relation
to the protection, welfare and development
It was felt necessary that the Ministry of Tribal
and advancement of the STs as the President
Affairs should coordinate all activities relating
may specify.
to the STs as it would not be administratively
feasible for the Ministry of Social Justice and Other functions of the Commission
Empowerment to perform this role. In 2005, the President specified the following
other functions of the Commission in relation to
Hence, in order to safeguard the interests of the
the protection, welfare and development and
STs more effectively, it was proposed to set up a
advancement of the STs:
separate National Commission for STs by
bifurcating the existing combined National • Measures to be taken over conferring
Commission for SCs and STs. This was done by ownership rights in respect of minor forest
passing the 89th Constitutional Amendment Act produce to STs living in forest areas
of 2003. • Measures to be taken to safeguard rights of
the tribal communities over mineral
This Act further amended Article 338 and
inserted a new Article 338-A in the Constitution. resources, water resources etc., as per law
• Measures to be taken for the development of
The separate National Commission for STs came tribals and to work for more viable
into existence in 2004. It consists of a livelihood strategies
chairperson, a vice-chairperson and three other • Measures to be taken to improve the efficacy
members. of relief and rehabilitation measures for
They are appointed by the President by warrant tribal groups displaced by development
under his hand and seal. Their conditions of projects
service and tenure of office are also determined • Measures to be taken to prevent alienation
by the President. of tribal people from land and to effectively
rehabilitate such people in whose case
Functions of the Commission alienation has already taken place
The functions of the Commission are: • Measures to be taken to elicit maximum
• To investigate and monitor all matters cooperation and involvement of tribal
relating to the constitutional and other legal communities for protecting forests and
safeguards for the STs and to evaluate their undertaking social afforestation
working; • Measures to be taken to ensure full
• To inquire into specific complaints with implementation of the Provisions of
respect to the deprivation of rights and Panchayats (Extension to the Scheduled
safeguards of the STs; Areas) Act, 1996
• To participate and advise on the planning • Measures to be taken to reduce and
process of socio-economic development of ultimately eliminate the practice of shifting
the STs and to evaluate the progress of their cultivation by tribals that lead to their
development under the Union or a state; continuous disempowerment and
degradation of land and the environment
• To present to the President, annually and at
such other times as it may deem fit, reports Report of the Commission
upon the working of those safeguards; The Commission presents an annual report to
• To make recommendations as to the the President. It can also submit a report as and
measures that should be taken by the Union when it thinks necessary.
or a state for the effective implementation of
The President places all such reports before the
those safeguards and other measures for the
Parliament, along with a memorandum
explaining the action taken on the
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recommendations made by the Commission. Accordingly, the National Commission for

The memorandum should also contain the Backward Classes (NCBC) was set up in 1993.
reasons for the non-acceptance of any of such
Later, the 102nd Amendment Act of 2018
recommendations.
conferred a constitutional status on the
The President also forwards any report of the Commission.
Commission pertaining to a state government to
For this purpose, the amendment inserted a
the state governor.
new Article 338-B in the constitution.
The governor places it before the state
Hence, the Commission ceased to be a statutory
legislature, along with a memorandum
body and became a constitutional body.
explaining the action taken on the
recommendations of the Commission. The Further, the scope of functions assigned to the
memorandum should also contain the reasons Commission is also enlarged under the new
for the non-acceptance of any of such dispensation. This was done in order to
recommendations. safeguard the interests of the socially and
educationally backward classes more
Powers of the Commission
effectively.
The Commission is vested with the power to
regulate its own procedure. In other words, the constitutional status of the
new Commission is at par with the National
The Commission, while investigating any matter
Commission for Scheduled Castes (NCSC) and
or inquiring into any complaint, has all the
the National Commission for Scheduled Tribes
powers of a civil court trying a suit and in
(NCST).
particular in respect of the following matters:
The Commission consists of a chairperson, a
• summoning and enforcing the attendance of
vice-chairperson and three other members.
any person from any part of India and
They are appointed by the President by warrant
examining him on oath;
under his hand and seal. Their conditions of
• requiring the discovery and production of
service and tenure of office are also determined
any document;
by the President.
• receiving evidence on affidavits;
• requisitioning any public record from any Functions of the Commission
court or office; The functions of the Commission are the
• issuing summons for the examination of following:
witnesses and documents; and
• To investigate and monitor all matters
• any other matter which the President may relating to the constitutional and other legal
determine. safeguards for the socially and educationally
The Central government and the state backward classes and to evaluate their
governments are required to consult the working.
Commission on all major policy matters • To inquire into specific complaints with
affecting the STs. respect to the deprivation of rights and
safeguards of the socially and educationally
National Commission for BCs backward classes.
Establishment of the Commission • To participate and advise on the
In the Mandal case judgement (1992), the socioeconomic development of the socially
Supreme Court directed the central government and educationally backward classes and to
to constitute a permanent statutory body to evaluate the progress of their development
examine the complaints of under-inclusion, under the Union or a state.
over-inclusion or non-inclusion of any class of • To present to the President, annually and at
citizens in the list of backward classes. such other times as it may deem fit, reports
upon the working of those safeguards.
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• To make recommendations as to the • Receiving evidence on affidavits

measures that should be taken by the Union • Requisitioning any public record from any
or a state for the effective implementation of court or office
those safeguards and other measures for the • Issuing summons for the examination of
protection, welfare and socio-economic witnesses and documents
development of the socially and • Any other matter which the President may
educationally backward classes. determine
• To discharge such other functions in relation
to the protection, welfare, development and The central government and the state
advancement of the socially and governments are required to consult the
educationally backward classes as the Commission on all major policy matters
President may specify. affecting the socially and educationally
backward classes.
Report of the Commission
The Commission presents an annual report to Special Officer for Linguistic
the President. It can also submit a report as and Minorities
when it thinks necessary. Constitutional Provisions
Originally, the Constitution of India did not
The President places all such reports before the
make any provision with respect to the Special
Parliament, along with a memorandum
Officer for Linguistic Minorities.
explaining the action taken on the
recommendations made by the Commission. Later, the States Reorganisation Commission
(1953–55) made a recommendation in this
The memorandum should also contain the
regard. Accordingly, the Seventh Constitutional
reasons for the non-acceptance of any of such
Amendment Act of 1956 inserted a new Article
recommendations.
350- B in Part XVII of the Constitution.
The President also forwards any report of the
This article contains the following provisions:
Commission pertaining to a state government to
the state government. • There should be a Special Officer for
Linguistic Minorities. He is to be appointed
The government places it before the state
by the President of India.
legislature, along with a memorandum
explaining the action taken on the • It would be the duty of the Special Officer to
recommendations of the Commission. investigate all matters relating to the
safeguards provided for linguistic minorities
The memorandum should also contain the under the Constitution. He would report to
reasons for the non-acceptance of any of such the President upon those matters at such
recommendations. intervals as the President may direct. The
President should place all such reports
Powers of the Commission
before each House of Parliament and send to
The Commission is vested with the power to
the governments of the states concerned.
regulate its own procedure.
It must be noted here that the Constitution does
The Commission, while investigating any matter
not specify the qualifications, tenure, salaries
or enquiring into any complaint, has all the
and allowances, service conditions and
powers of a civil court trying a suit and in
procedure for removal of the Special Officer for
particular in respect of the following matters:
Linguistic Minorities.
• Summoning and enforcing the attendance of
Commissioner for Linguistic Minorities
any person from any part of India and
In pursuance of the provision of Article 350-B of
examining him on oath
the Constitution, the office of the Special Officer
• Requiring the discovery and production of
for Linguistic Minorities was created in 1957. He
any document
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is designated as the Commissioner for Linguistic Functions and Objectives

Minorities. In more detail, the functions and objectives of
the Commissioner are as follows:
The Commissioner has his headquarters at
Allahabad (Uttar Pradesh). He has three Functions
regional offices at Belgaum (Karnataka),
• To investigate all matters related to
Chennai (Tamil Nadu) and Kolkata (West
safeguards provided to the linguistic
Bengal). Each is headed by an Assistant
minorities
Commissioner.
• To submit to the President of India, the
The Commissioner is assisted at headquarters reports on the status of implementation of
by Deputy Commissioner and an Assistant the Constitutional and the nationally agreed
Commissioner. He maintains liaison with the safeguards for the linguistic minorities
State Governments and Union Territories • To monitor the implementation of
through nodal officers appointed by them. safeguards through questionnaires, visits,
conferences, seminars, meetings, review
At the Central level, the Commissioner falls
mechanism, etc
under the Ministry of Minority Affairs. Hence, he
submits the annual reports or other reports to Objectives
the President through the Union Minority
Affairs Minister. • To provide equal opportunities to the
linguistic minorities for inclusive
Role of the Commissioner development and national integration
The Commissioner takes up all the matters • To spread awareness amongst the linguistic
pertaining to the grievances arising out of the minorities about the safeguards available to
non-implementation of the Constitutional and them
Nationally Agreed Scheme of Safeguards • To ensure effective implementation of the
provided to linguistic minorities that come to its safeguards provided for the linguistic
notice or are brought to its knowledge by the minorities in the Constitution and other
linguistic minority individuals, groups, safeguards, which are agreed to by the
associations or organisations at the highest states/UTs
political and administrative levels of the state • To handle the representations for redress of
governments and UT administrations and grievances related to the safeguards for
recommends remedial actions to be taken. linguistic minorities.
To promote and preserve linguistic minority
Comptroller and Auditor General of
groups, the Ministry of Minority Affairs has
requested the State Governments / Union
India
Territories to give wide publicity to the The Constitution of India (Article 148) provides
constitutional safeguards provided to linguistic for an independent office of the Comptroller and
minorities and to take necessary administrative Auditor General of India (CAG).
measures. He is the head of the Indian Audit and Accounts
The state governments and UT Administrations Department.
were urged to accord priority to the He is the guardian of the public purse and
implementation of the scheme of safeguards for controls the entire financial system of the
linguistic minorities. The Commissioner country at both the levels–the Centre and the
launched a 10 point programme to lend fresh state.
impetus to Governmental efforts towards the
preservation of the language and culture of His duty is to uphold the Constitution of India
linguistic minorities. and laws of Parliament in the field of financial
administration.

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This is the reason why Dr. B.R. Ambedkar said • He is not eligible for further office, either
that the CAG shall be the most important Officer under the Government of India or of any
under the Constitution of India. state, after he ceases to hold his office.
• His salary and other service conditions are
He is one of the bulwarks of the democratic
determined by the Parliament. His salary is
system of government in India; the others being
equal to that of a judge of the Supreme Court.
the Supreme Court, the Election Commission
and the Union Public Service Commission. • Neither his salary nor his rights in respect of
leave of absence, pension or age of
Appointment and Term retirement can be altered to his
The CAG is appointed by the president of India disadvantage after his appointment.
by a warrant under his hand and seal. The CAG, • The conditions of service of persons serving
before taking over his office, makes and in the Indian Audit and Accounts
subscribes before the president an oath or Department and the administrative powers
affirmation: of the CAG are prescribed by the president
after consultation with the CAG.
• to bear true faith and allegiance to the
• The administrative expenses of the office of
Constitution of India;
the CAG, including all salaries, allowances
• to uphold the sovereignty and integrity of
and pensions of persons serving in that
India;
office are charged upon the Consolidated
• to duly and faithfully and to the best of his
Fund of India. Thus, they are not subject to
ability, knowledge and judgement perform
the vote of Parliament.
the duties of his office without fear or favour,
affection or ill-will; and Further, no minister can represent the CAG in
• to uphold the Constitution and the laws. Parliament (both Houses) and no minister can
be called upon to take any responsibility for any
He holds office for a period of six years or upto
actions done by him.
the age of 65 years, whichever is earlier.
Duties and Powers
He can resign any time from his office by
The Constitution (Article 149) authorises the
addressing the resignation letter to the
Parliament to prescribe the duties and powers
president.
of the CAG in relation to the accounts of the
He can also be removed by the president on Union and of the states and of any other
same grounds and in the same manner as a authority or body.
judge of the Supreme Court. In other words, he
Accordingly, the Parliament enacted the CAG’s
can be removed by the president on the basis of
(Duties, Powers and Conditions of Service) act,
a resolution passed to that effect by both the
1971. This Act was amended in 1976 to separate
Houses of Parliament with special majority,
accounts from audit in the Central government.
either on the ground of proved misbehaviour or
incapacity. The duties and functions of the CAG as laid down
by the Parliament and the Constitution are:
Independence
The Constitution has made the following • He audits the accounts related to all
provisions to safeguard and ensure the expenditure from the Consolidated Fund of
independence of CAG: India, consolidated fund of each state and
consolidated fund of each union territory
• He is provided with the security of tenure.
having a Legislative Assembly.
He can be removed by the president only in
• He audits all expenditure from the
accordance with the procedure mentioned
Contingency Fund of India and the Public
in the Constitution. Thus, he does not hold
Account of India as well as the contingency
his office till the pleasure of the president,
fund of each state and the public account of
though he is appointed by him.
each state.
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• He audits all trading, manufacturing, profit • He compiles and maintains the accounts of
and loss accounts, balance sheets and other state governments. In 1976, he was relieved
subsidiary accounts kept by any department of his responsibilities with regard to the
of the Central Government and state compilation and maintenance of accounts of
governments. the Central Government due to the
• He audits the receipts and expenditure of the separation of accounts from audit, that is,
Centre and each state to satisfy himself that departmentalisation of accounts.
the rules and procedures in that behalf are
The CAG submits three audit reports to the
designed to secure an effective check on the
President–audit report on appropriation
assessment, collection and proper allocation
accounts, audit report on finance accounts, and
of revenue.
audit report on public undertakings.
• He audits the receipts and expenditure of the
following: The President lays these reports before both the
o All bodies and authorities substantially Houses of Parliament. After this, the Public
financed from the Central or state Accounts Committee examines them and
revenues; reports its findings to the Parliament.
o Government companies; and
The appropriation accounts compare the actual
o Other corporations and bodies, when so
expenditure with the expenditure sanctioned by
required by related laws.
the Parliament through the Appropriation Act,
• He audits all transactions of the Central and
while the finance accounts show the annual
state governments related to debt, sinking
receipts and disbursements of the Union
funds, deposits, advances, suspense
government.
accounts and remittance business. He also
audits receipts, stock accounts and others, Role
with approval of the President, or when The role of CAG is to uphold the Constitution of
required by the President. India and the laws of Parliament in the field of
• He audits the accounts of any other authority financial administration.
when requested by the President or
The accountability of the executive (i.e., council
Governor. For example, the audit of local
of ministers) to the Parliament in the sphere of
bodies.
financial administration is secured through
• He advises the President with regard to
audit reports of the CAG.
prescription of the form in which the
accounts of the Centre and the states shall be The CAG is an agent of the Parliament and
kept (Article 150). conducts audit of expenditure on behalf of the
• He submits his audit reports relating to the Parliament. Therefore, he is responsible only to
accounts of the Centre to President, who the Parliament.
shall, in turn, place them before both the
The CAG has more freedom with regard to audit
Houses of Parliament (Article 151).
of expenditure than with regard to audit of
• He submits his audit reports relating to the receipts, stores and stock. “Whereas in relation
accounts of a state to governor, who shall, in to expenditure he decides the scope of audit and
turn, place them before the state legislature frames his own audit codes and manuals, he has
(Article 151). to proceed with the approval of the executive
• He ascertains and certifies the net proceeds government in relation to rules for the conduct
of any tax or duty (Article 279). His of the other audits.”
certificate is final. The ‘net proceeds’ means
the proceeds of a tax or a duty minus the cost The CAG has ‘to ascertain whether money
of collection. shown in the accounts as having been disbursed
• He acts as a guide, friend and philosopher of was legally available for and applicable to the
the Public Accounts Committee of the service or the purpose to which they have been
Parliament. applied or charged and whether the
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expenditure conforms to the authority that • Some other corporations are audited by
governs it’. private professional auditors who are
appointed by the Central Government in
In addition to this legal and regulatory audit, the
consultation with the CAG. If necessary, the
CAG can also conduct the propriety audit, that is,
CAG can conduct supplementary audit. The
he can look into the ‘wisdom, faithfulness and
examples are, Central Warehousing
economy’ of government expenditure and
Corporation, Industrial Finance
comment on the wastefulness and extravagance
Corporation, and others.
of such expenditure. However, unlike the legal
• Some other corporations are totally
and regulatory audit, which is obligatory on the
subjected to private audit. In other words,
part of the CAG, the propriety audit is
their audit is done exclusively by private
discretionary.
professional auditors and the CAG does not
The secret service expenditure is a limitation on come into the picture at all. They submit
the auditing role of the CAG. In this regard, the their annual reports and accounts directly to
CAG cannot call for particulars of expenditure the Parliament. Examples of such
incurred by the executive agencies, but has to corporations are Life Insurance Corporation
accept a certificate from the competent of India, Reserve Bank of India, State Bank of
administrative authority that the expenditure India, Food Corporation of India, and others.
has been so incurred under his authority.
The role of the CAG in the auditing of
The Constitution of India visualises the CAG to Government companies is also limited. They are
be Comptroller as well as Auditor General. audited by private auditors who are appointed
However, in practice, the CAG is fulfilling the by the Government on the advise of the CAG. The
role of an Auditor-General only and not that of a CAG can also undertake supplementary audit or
Comptroller. test audit of such companies.
In other words, ‘the CAG has no control over the In 1968, an Audit Board was established as a
issue of money from the consolidated fund and part of the office of CAG to associate outside
many departments are authorised to draw specialists and experts to handle the technical
money by issuing cheques without specific aspects of audit of specialised enterprises like
authority from the CAG, who is concerned only engineering, iron and steel, chemicals and so on.
at the audit stage when the expenditure has This board was established on the
already taken place’. recommendations of the Administrative
Reforms Commission of India. It consists of a
In this respect, the CAG of India differs totally
Chairman and two members appointed by the
from the CAG of Britain who has powers of both
CAG.
Comptroller as well as Auditor General.
In other words, in Britain, the executive can Attorney General of India
draw money from the public exchequer only The Constitution (Article 76) has provided for
with the approval of the CAG. the office of the Attorney General for India. He is
the highest law officer in the country.
CAG and Corporations
The role of CAG in the auditing of public Appointment and Term
corporations is limited. Broadly speaking, his The Attorney General (AG) is appointed by the
relationship with the public corporations falls president. He must be a person who is qualified
into the following three categories: to be appointed a judge of the Supreme Court.

• Some corporations are audited totally and In other words, he must be a citizen of India and
directly by the CAG, for example, Damodar he must have been a judge of some high court
Valley Corporation, Oil and Natural Gas for five years or an advocate of some high court
Commission, Air India, Indian Airlines for ten years or an eminent jurist, in the opinion
Corporation, and others. of the president.
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The term of office of the AG is not fixed by the Rights and Limitations
Constitution. Further, the Constitution does not In the performance of his official duties, the
contain the procedure and grounds for his Attorney General has the right of audience in all
removal. courts in the territory of India.
He holds office during the pleasure of the Further, he has the right to speak and to take
president. part in the proceedings of both the Houses of
Parliament or their joint sitting and any
This means that he may be removed by the
committee of the Parliament of which he may be
president at any time.
named a member, but without a right to vote.
He may also quit his office by submitting his
He enjoys all the privileges and immunities that
resignation to the president.
are available to a member of Parliament.
Conventionally, he resigns when the
Following limitations are placed on the Attorney
government (council of ministers) resigns or is
General in order to avoid any complication and
replaced, as he is appointed on its advice.
conflict of duty:
The remuneration of the AG is not fixed by the
• He should not advise or hold a brief against
Constitution.
the Government of India.
He receives such remuneration as the president • He should not advise or hold a brief in cases
may determine. in which he is called upon to advise or
appear for the Government of India.
Duties and Functions
• He should not defend accused persons in
As the chief law officer of the Government of
criminal prosecutions without the
India, the duties of the AG include the following:
permission of the Government of India.
• To give advice to the Government of India • He should not accept appointment as a
upon such legal matters, which are referred director in any company or corporation
to him by the president. without the permission of the Government
• To perform such other duties of a legal of India.
character that are assigned to him by the • He should not advise any ministry or
president. department of Government of India or any
• To discharge the functions conferred on him statutory organization or any public sector
by the Constitution or any other law. undertaking unless the proposal or a
reference in this regard is received through
The president has assigned the following duties
the Ministry of Law and Justice, Department
to the AG:
of Legal Affairs.
• To appear on behalf of the Government of
However, the Attorney General is not a fulltime
India in all cases in the Supreme Court in
counsel for the Government. He does not fall in
which the Government of India is concerned.
the category of government servants. Further,
• To represent the Government of India in any he is not debarred from private legal practice.
reference made by the president to the
Supreme Court under Article 143 of the Solicitor General of India
Constitution. In addition to the AG, there are other law
• To appear (when required by the officers of the Government of India. They are the
Government of India) in any high court in solicitor general of India and additional solicitor
any case in which the Government of India is general of India.
concerned.
They assist the AG in the fulfilment of his official
responsibilities. It should be noted here that
only the office of the AG is created by the
Constitution.
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In other words, Article 76 does not mention Conventionally, he resigns when the
about the solicitor general and additional government (council of ministers) resigns or is
solicitor general. replaced, as he is appointed on its advice.
The AG is not a member of the Central cabinet. The remuneration of the advocate general is not
There is a separate law minister in the Central fixed by the Constitution. He receives such
cabinet to look after legal matters at the remuneration as the governor may determine.
government level.

Advocate General of the State Duties And Functions

The Constitution (Article 165) has provided for As the chief law officer of the government in the
the office of the advocate general for the states. state, the duties of the advocate general include
the following:
He is the highest law officer in the state.
• To give advice to the government of the state
Thus, he corresponds to the Attorney General of
upon such legal matters which are referred
India.
to him by the governor.
Appointment and Term • To perform such other duties of a legal
The advocate general is appointed by the character that are assigned to him by the
governor. He must be a person who is qualified governor.
to be appointed a judge of a high court. • To discharge the functions conferred on him
by the Constitution or any other law.
In other words, he must be a citizen of India and
must have held a judicial office for ten years or In the performance of his official duties, the
been an advocate of a high court for ten years. advocate general is entitled to appear before
any court of law within the state.
The term of office of the advocate general is not
fixed by the Constitution. Further, the Further, he has the right to speak and to take
Constitution does not contain the procedure and part in the proceedings of both the Houses of the
grounds for his removal. He holds office during state legislature or any committee of the state
the pleasure of the governor. legislature of which he may be named a
member, but without a right to vote. He enjoys
This means that he may be removed by the
all the privileges and immunities that are
governor at any time. He may also quit his office
available to a member of the state legislature.
by submitting his resignation to the governor.

********

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Chapter 43 – Non-Constitutional Bodies

NITI Aayog “India has undergone a paradigm shift over the

Establishment past six decades–politically, economically,
On the 13th of August, 2014, the Modi socially, technologically as well as
Government scrapped the 65-year-old Planning demographically.
Commission and announced that it would be The role of Government in national
replaced by a new body. development has seen a parallel evolution.
Accordingly, on January 1, 2015, the NITI Aayog Keeping with these changing times, the
(National Institution for Transforming India) Government of India has decided to set up NITI
was established as the successor to the planning Aayog (National Institution for Transforming
commission. India), in place of the erstwhile Planning
Commission, as a means to better serve the
However, it must be noted here that the NITI needs and aspirations of the people of India.”
Aayog, like that of the Planning Commission,
was also created by an executive resolution of The new institution will be a catalyst to the
the Government of India (i.e., Union Cabinet). developmental process; nurturing an overall
Hence, it is also neither a constitutional body enabling environment, through a holistic
nor a statutory body. approach to development going beyond the
limited sphere of the Public Sector and
In other words, it is a non-constitutional or Government of India. This will be built on the
extra-constitutional body (i.e., not created by foundations of:
the Constitution) and a non-statutory body (not
created by an Act of the Parliament). • An empowered role of States as equal
partners in national development;
NITI Aayog is the premier policy ‘Think Tank’ of operationalising the principle of
the Government of India, providing both Cooperative Federalism.
directional and policy inputs. • A knowledge hub of internal as well as
While designing strategic and long-term policies external resources; serving as a repository
and programmes for the Government of India, of good governance best practices, and a
NITI Aayog also provides relevant technical Think Tank offering domain knowledge as
advice to the Centre and States. well as strategic expertise to all levels of
government.
The centre-to-state one-way flow of policy, that • A collaborative platform facilitating
was the hallmark of the Planning Commission implementation; by monitoring progress,
era, is now sought to be replaced by a genuine plugging gaps and bringing together the
and continuing partnership of states. various ministries at the Centre and in
In a paradigmatic shift from the command and States, in the joint pursuit of developmental
control approach of the past, NITI Aayog goals.
accommodates diverse points of view in a In the same context, the then Union Finance
collaborative, rather than confrontationist, Minister Arun Jaitley said: “The 65-year-old
setting. In the spirit of federalism, NITI’s own Planning Commission had become a redundant
policy thinking too is shaped by a ‘bottom up’ organisation. It was relevant in a command
approach rather than a ‘top-down’ model. economy structure, but not any longer.
Rationale India is a diversified country and its states are in
While explaining the reason for replacing the various phases of economic development along
Planning Commission with the NITI Aayog, the with their own strengths and weaknesses. In
Union Government made the following this context, a ‘one-size-fits-all’ approach to
observation:
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economic planning is obsolete. It cannot make Ministers to be nominated by the Prime

India competitive in today’s global economy.” Minister.
o Chief Executive Officer: He is appointed
The Resolution observed: “Perhaps most
by the Prime Minister for a fixed tenure,
importantly, the institution must adhere to the
in the rank of Secretary to the
tenet that while incorporating positive
Government of India.
influences from the world, no single model can
o Secretariat: As deemed necessary.
be transplanted from outside into the Indian
scenario. We need to find our own strategy for Specialised Wings
growth. It will be a Bharatiya approach to NITI Aayog houses a number of specialised
development.” wings, including:
Composition • Research Wing: It develops in-house
The composition of the NITI Aayog is as follows: sectoral expertise as a dedicated think tank
of top-notch domain experts, specialists and
• Chairperson: The Prime Minister of India
scholars.
• Governing Council: It comprises the Chief
• Consultancy Wing: It provides a
Ministers of all the States, Chief Ministers of
marketplace of whetted panels of expertise
Union Territories with Legislatures (i.e.,
and funding, for the Central and State
Delhi, Puducherry and Jammu and Kashmir)
Governments to tap into matching their
and Lt. Governors of other Union Territories.
requirements with solution providers,
• Regional Councils: These are formed to
public and private, national and
address specific issues and contingencies
international. By playing match-maker
impacting more than one state or a region.
instead of providing the entire service itself,
These are formed for a specified tenure.
NITI Aayog is able to focus its resources on
These are convened by the Prime Minister
priority matters, providing guidance and an
and comprises of the Chief Ministers of
overall quality check to the rest.
States and Lt. Governors of Union Territories
• Team India Wing: It comprises of the
in the region. These are chaired by the
representatives from every State and
Chairperson of the NITI Aayog or his
Ministry and serves as a permanent platform
nominee.
for national collaboration. Each
• Special Invitees: Experts, specialists and
representative:
practitioners with relevant domain
o Ensures that every State/Ministry has a
knowledge as special invitees nominated by
continuous voice and stake in the NITI
the Prime Minister.
Aayog.
• Full-time Organisational Framework: It o Establishes a direct communication
comprises, in addition to the Prime Minister channel between the State/Ministry and
as the Chairperson: NITI Aayog for all development related
o Vice-Chairperson: He is appointed by matters, as the dedicated liaison
the Prime Minister. He enjoys the rank of interface.
a Cabinet Minister.
o Members: Full-time. They enjoy the rank NITI Aayog functions in close cooperation,
of a Minister of State. consultation and coordination with the
o Part-time Members: Maximum of 2, Ministries of the Central Government, and State
from leading universities, research Governments.
organisations and other relevant
While it makes recommendations to the Central
institutions in an ex- officio capacity.
and State Governments, the responsibility for
Part-time members would be on a
taking and implementing decisions rests with
rotation.
them.
o Ex-Officio Members: Maximum of 4
members of the Union Council of

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Objectives and equitable development as well as help

The objectives of the NITI Aayog are mentioned their dissemination to stake-holders.
below: • To actively monitor and evaluate the
implementation of programmes and
• To evolve a shared vision of national
initiatives, including the identification of the
development priorities, sectors and
needed resources so as to strengthen the
strategies with the active involvement of
probability of success and scope of delivery.
States.
• To focus on technology upgradation and
• To foster cooperative federalism through
capacity building for implementation of
structured support initiatives and
programmes and initiatives.
mechanisms with the States on a continuous
• To undertake other activities as may be
basis, recognising that strong States make a
necessary in order to further the execution
strong nation.
of the national development agenda, and the
• To develop mechanisms to formulate
objectives mentioned above.
credible plans at the village level and
aggregate these progressively at higher Through the above, the NITI Aayog aims to
levels of government. accomplish the following objectives and
• To ensure, on areas that are specifically opportunities:
referred to it, that the interests of national
• An administration paradigm in which the
security are incorporated in economic
Government is an “enabler” rather than a
strategy and policy.
“provider of first and last resort.”
• To pay special attention to the sections of
• Progress from “food security” to focus on a
our society that may be at risk of not
mix of agricultural production, as well as
benefitting adequately from economic
actual returns that farmers get from their
progress.
produce.
• To design strategic and long-term policy and
• Ensure that India is an active player in the
programme frameworks and initiatives, and
debates and deliberations on the global
monitor their progress and their efficacy.
commons.
The lessons learnt through monitoring and
• Ensure that the economically vibrant
feedback will be used for making innovative
middle-class remains engaged, and its
improvements, including necessary
potential is fully realised.
midcourse corrections.
• Leverage India’s pool of entrepreneurial,
• To provide advice and encourage
scientific and intellectual human capital.
partnerships between key stakeholders and
• Incorporate the significant geo-economic
national and international like-minded think
tanks, as well as educational and policy and geo-political strength of the Non-
research institutions. Resident Indian Community.
• To create a knowledge, innovation and • Use urbanisation as an opportunity to create
entrepreneurial support system through a a wholesome and secure habitat through the
collaborative community of national and use of modern technology.
international experts, practitioners and • Use technology to reduce opacity and
other partners. potential for misadventures in governance.
• To offer a platform for resolution of inter- The NITI Aayog aims to enable India to better
sectoral and inter-departmental issues in face complex challenges, through the following:
order to accelerate the implementation of
the development agenda. • Leveraging of India’s demographic dividend,
• To maintain a state-of-the-art Resource and realisation of the potential of youth, men
Centre, be a repository of research on good and women, through education, skill
governance and best practices in sustainable development, elimination of gender bias,
and employment

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• Elimination of poverty, and the chance for The NITI Aayog uniquely focus thematic policy
every Indian to live a life of dignity and self- interventions which encourages convergence
respect across central ministries, state governments,
• Redressal of inequalities based on gender development partners, sector experts and
bias, caste and economic disparities professionals. This convergence approach to
• Integrate villages institutionally into the governance is applied to achieve the objectives
development process of NITI Aayog.
• Policy support to more than 50 million small The different Verticals of NITI Aayog provide
businesses, which are a major source of the requisite coordination and support
employment creation framework for NITI Aayog to carry out its
• Safeguarding our environmental and mandate.
ecological assets
The list of Verticals is as follows:
Functions
The various functions performed by the NITI 1. Agriculture
Aayog can be divided into four main heads: 2. Data Management & Analysis
3. Energy
• Design policy and programme framework 4. Financial Resources
• Foster co-operative federalism 5. Governance & Research
• Monitoring and evaluation 6. Governing Council Secretariat
• Think-tank, and Knowledge and Innovation 7. Health
Hub 8. Human Resource Development
The NITI Aayog is functionally divided into 9. Industry
10. Infrastructure Connectivity
various Verticals which are responsible for
examining and looking into sectoral issues and 11. Land & Water Resources
12. Managing Urbanisation
priorities for national development and
economic growth. 13. Natural Resources & Environment
14. NGO Darpan
By dividing the entire gamut of activities in the 15. Project Appraisal & Management Division
NITI Aayog, the Team India and Knowledge and (PAMD)
Innovation Hubs were constituted, and 16. Public-Private Partnerships
accordingly Verticals and Core Divisions were 17. Rural Development
created. 18. Science & Technology
19. Skill Development & Employment
The two hubs are at the core of NITI’s efficient
20. Social Justice & Empowerment
functioning. The Team India Hub carries out the
21. State Coordination and Decentralized
mandate of fostering ‘Cooperative Federalism’
Planning
and ‘Designing Policy and Programme
22. Sustainable Development Goals
Frameworks’.
23. Voluntary Action Cell
It provides requisite coordination and support 24. Women & Child Development
framework to NITI Aayog in its engagement
Guiding Principles
with the States. On the other hand, the
In carrying out the above functions, the NITI
Knowledge & Innovation Hub ensures fulfilling
Aayog is guided by the following principles:
the mandate of maintaining a State-of- the-Art
Resource Centre; to be a repository of research • Antyodaya: Prioritise service and uplift of
of good governance and best practices and their the poor, marginalised and downtrodden, as
dissemination to stakeholders; and to provide enunciated in Pandit Deendayal Upadhyay’s
advice and encourage partnerships across key idea of ‘Antyodaya’.
areas. • Inclusion: Empower vulnerable and
marginalised sections, redressing identity-

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based inequalities of all kinds–gender, Cooperative Federalism

region, religion, caste or class. The NITI Aayog has been constituted to
• Village: Integrate our villages into the actualize the important goal of cooperative
development process, to draw on the vitality federalism and to enable good governance in
and energy of the bedrock of our ethos, India, to build strong states that will make a
culture and sustenance. strong nation.
• Demographic dividend: Harness our
In a truly federal state, several objectives that
greatest asset, the people of India; by
ought to be achieved may carry political
focussing on their development, through
ramifications throughout the country. It is
education and skilling, and their
impossible for any federal government to
empowerment, through productive
achieve the national objectives without active
livelihood opportunities.
cooperation from state governments. It is,
• People’s Participation: Transform the therefore, crucial that the Centre and State
developmental process into a people-driven governments work together as equals.
one, making an awakened and participative
citizenry–the driver of good governance. The two key features or aspects of Cooperative
• Governance: Nurture an open, transparent, Federalism are:
accountable, proactive and purposeful style
• Joint focus on the National Development
of governance, transitioning focus from
Agenda by the Centre and the States; and
Outlay to Output to Outcome.
• Advocacy of State perspectives with Central
• Sustainability: Maintain sustainability at
Ministries.
the core of our planning and developmental
process, building on our ancient tradition of In keeping with this, the NITI Aayog has been
respect for the environment. mandated the task of evolving a shared vision of
national development priorities, sectors and
Therefore, the NITI Aayog is based on the
strategies with the active involvement of States.
following seven pillars of effective governance:
These priorities ought to reflect the national
• Pro-people agenda that fulfils the
objectives and foster cooperative federalism
aspirations of the society as well as
through structured support to States on a
individuals.
continuous basis.
• Pro-active in anticipating and responding to
citizen needs. The NITI Aayog ought also to help states
• Participative, by involvement of citizens. develop mechanisms to formulate credible
• Empowering women in all aspects. plans at the village level and aggregate these
• Inclusion of all groups with special attention progressively at higher levels of government.
to the SCs, STs, OBCs and minorities. The aim is to progress from a stage when the
• Equality of opportunity for the youth. Centre decided development policies to a truly
• Transparency through the use of technology federal government wherein States are equal
to make government visible and responsive. stakeholders in the planning process.
Through its commitment to a cooperative The policy of the Government to involve State
federalism, promotion of citizen engagement, governments is reflected in changes in the
egalitarian access to opportunity, participative interaction processes of the NITI Aayog.
and adaptive governance and increasing use of
technology, the NITI Aayog seeks to provide a Consistent with its mandate, the NITI Aayog has
critical directional and strategic input into the undertaken several crucial initiatives to ensure
development process. that States are equal partners in the policy
making and implementing process.
This, along with being the incubator of ideas for
development, is the core mission of NITI Aayog. At the meetings of the Governing Council of NITI
Aayog, the Prime Minister highlighted the
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importance of NITI Aayog as a platform to • Sustainable Action for Transforming Human

inspire cooperative federalism, stressing on the Capital (SATH)
need for effective center-state cooperation to
Criticism
advance development outcomes and achieve
Hitting out at the government for its decision to
double-digit and inclusive growth for India.
restructure the Planning Commission and
It is the constant endeavor of NITI Aayog to rechristen it as “NITI Aayog”, the Opposition
evolve a shared vision of national priorities, said the move is just a “fluff” and mere
sectors, and strategies with the active “gimmickry”.
involvement of States, wherein States are equal
They also expressed their apprehension that the
stakeholders in the planning process as well.
new body will pave the way for discrimination,
In keeping with this, the Vice-Chairman of NITI as “corporates will call the shots” in
Aayog committed himself to visit all States, to policymaking in the country.
develop and offer a platform for resolution of
CPI(M) leader Sitaram Yechury termed the
inter-sectoral and inter-departmental issues in
renaming of the Planning Commission as aniti
order to accelerate the implementation of the
aur durniti (no policy and bad policy).
development agenda.
Mr. Yechury said, “just a change of nomenclature
The NITI Aayog has also established models and
and gimmickry does not serve any purpose. Let
programmes for development of infrastructure
us see what the government plans to do with it”.
and to reignite and establish Private- Public
Partnership, such as the Centre-State “If the government wants to greet people with
partnership model: Development Support fluff and not substance on the first day of 2015,
Services to States (DSSS); and the Sustainable then there is nothing more that can be said... If
Action for Transforming Human Capital (SATH) the North Block or the Finance Ministry has a
programme which is designed to help States very short-term view of both fiscal and
improve their social sector indicators by monetary objective and is going to be the final
providing them technical support. arbiter between the states and the Centre... it
being the stakeholder in the process... I am
Further, with the aim of correcting regional
afraid, is going to discriminate against the
development imbalance, the NITI Aayog has
states,” Congress leader Manish Tewari said.
taken special steps for regions needing special
attention and support, like the North Eastern “After all, what was the Planning Commission
States, Island States and hilly Himayalan States doing? It used to plan policy. So by changing the
by constituting special forums to identify their nomenclature from Planning Commission to
specific constraints, formulating special policies NITI Aayog what is the message this
to ensure sustainable development takes place government is trying to send,” Mr. Tewari said,
in these regions while also protecting their adding that Congress’ opposition to
abundant natural resources. restructuring of the Planning Commission was
based on “principles”.
From the above discussion, we can summarise
the various manifestations of Cooperative “It’s not a question of fighting a war, it’s a matter
Federalism in the working of the NITI Aayog: of principle. The Opposition Bharatiya Janata
Party used to go extra lengths talking about
• Meetings of Governing Council
federalism and how the sanctity and sacrosanct
• Sub-groups of Chief Ministers on different
of federalism has to be maintained. And now
subjects
they are going exactly the reverse,” the Congress
• Task Forces on specific subjects
leader said.
• NITI Forum for North East
• Sustainable Development in the Indian Veteran CPI leader Gurudas Dasgupta said that
Himayalan Region dismantling of the Planning Commission and
• Development Support Services to States bringing in a new body in its place will lead to an
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unregulated economy. “It is not a change of The IAMR was established in 1962 under the
name. The Planning Commission is being Societies Registration Act of 1860 as an
abolished because they (government) don’t institution that would function as a
believe in planning,” he said. clearinghouse of ideas and undertake policy
research on human capital development to
“The government would like to have a full-
inform perspective planning and promote
market economy (which is) totally
policy integration.
unregulated,” Mr. Dasgupta said adding. “If this
becomes the policy of the government to not The main object of the Institute is to advance
help advance the country, control inflation and knowledge about the nature, characteristics and
create job opportunities, it will not be good for utilisation of human resources through
the country”. research, education and training, consultancy,
etc.
“Mere change of name from Yojana Aayog to
NITI is not objectionable if it is coupled with real The IAMR has been renamed as NILERD in 2014.
reform. Otherwise, it will be purely cosmetic like
The NILERD is mainly funded by grants-in-aid
earlier naming ceremonies,” Congress
from the NITI Aayog (formerly Planning
spokesperson Abhishek Manu Singhvi said. He
Commission), and supplemented by its own
said the Congress would have supported
revenue from contracted research projects, and
constructive reform of the Planning
education and training activities.
Commission. But the “alteration of identity and
basic structure”, he said, “is being done because The prime objective of NILERD has been to
of anti-Nehruvianism and anti- Congression.” develop an institutional framework capable of
sustaining and steering a systematic applied
CPI(M) central committee member Md Selim,
human resource planning research process.
MP, said no meaningful purpose would be
served by just renaming the Planning Since its inception, the Institute has carved out
Commission. Alleging that the BJP government its own trajectory to achieve academic heights,
had decided to dissolve the planning and in the process, developed a range of
commission “to dilute the planning process”, he academic activities not only in the field of
said the government should have given more human resource planning and development, but
teeth to the National Development Council also in monitoring and evaluation of public
instead. policies and programmes.
Attached Offices During the past few years, the Institute has
There are two offices attached to the NITI exhibited remarkable dynamism in addressing
Aayog. They are explained below: the issues of national priorities.
National Institute of Labour Economics The Institute has emerged as a pioneering
Research and Development institute in providing academic training on
human resource planning and development for
The National Institute of Labour Economics
both international and national participants.
Research and Development (NILERD) was
formerly known as the Institute of Applied The Institute moved to its own campus at Narela
Manpower Research (IAMR). in 2002. Narela is a developing urban and
institutional hub declared as a special economic
It is a central autonomous organization attached
zone for knowledge in the National Capital
to the NITI Aayog.
Region.
Its primary objectives are research, data
Development Monitoring and Evaluation
collection, education and training in all aspects
Office
of human capital planning, human resource
development, and monitoring and evaluation. The need for an efficient and independent
evaluation mechanism in India was recognized
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by the planners and policy-makers right from & Fin.) who is to provide administrative and
the introduction of planning process in the logistics support.
country and resultantly, the Programme
The Headquarter of DMEO is in NITI Aayog, New
Evaluation Organization was established by the
Delhi.
Government in 1952 to carry out independent
and objective impact evaluation of the Central The DMEO had 15 Regional Offices known as
Government funded programmes. Regional Development Monitoring and
Evaluation Offices (RDMEOs). Each RDMEO was
The Development Monitoring and Evaluation
headed by a Director level officer.
Office (DMEO) was established by the
Government in 2015 as an attached office of the The RDMEOs conducted field surveys and data/
NITI Aayog by merging the erstwhile information collection work for evaluation
Programme Evaluation Organization and the studies, and they also played an important role
Independent Evaluation Office. in promoting cooperative federalism by their
interaction with the States and UT
The DMEO is headed by the Director General
administrations.
who is equivalent to an Additional Secretary to
the Government of India. However, keeping in view the changed
functional requirements, they were closed in
To ensure that DMEO is able to function
2017 and the staff were transferred to DMEO
independently and effectively, it has been
Hqrs in New Delhi.
provided with separate budgetary allocations
and manpower in addition to complete Erstwhile Planning Commission
functional autonomy. The erstwhile Planning Commission was
established in March 1950 by an executive
The DMEO has been mandated to actively
resolution of the Government of India, (i.e., the
monitor and evaluate the implementation of the
Union Cabinet) on the recommendation of the
programmes and initiatives of the Government
Advisory Planning Board constituted in 1946,
of India, including the identification of the
under the chairmanship of K.C. Neogi.
needed resources so as to strengthen the
probability of the success and scope of delivery. Thus, the erstwhile Planning Commission was
neither a constitutional body nor a statutory
The functions of DMEO are:
body.
• Monitor the implementation of Government
In India, it was the supreme organ of planning
programmes
for social and economic development.
• Help Ministries in designing TORs for
evaluation studies Functions
• Monitor the implementation and progress of
The functions of the erstwhile Planning
SDGs
Commission included the following:
• Promote the spirit of Cooperative
Federalism • To make an assessment of material, capital
• Conduct evaluation of the Government and human resources of the country, and
programmes investigate the possibilities of augmenting
them.
At the NITI Aayog level, the programme
• To formulate a plan for the most effective
evaluation work is being looked after under the
and balanced utilisation of the country’s
overall guidance of the Vice-Chairman, NITI
resources.
Aayog.
• To determine priorities and to define the
In addition to the Director General, the DMEO stages in which the plan should be carried
has been provided with 4 Deputy Director out.
Generals (SAG level) to look after the functional • To indicate the factors that retard economic
mandate in addition to the Joint Secretary (Adm. development.
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• To determine the nature of the machinery submission of the draft of Five-Year Plan to
required for successful implementation of the Central cabinet.
the plan in each stage. • He was appointed by the Central cabinet for
• To appraise, from time to time, the progress a fixed tenure and enjoyed the rank of a
achieved in execution of the plan and to Cabinet Minister. Though he was not a
recommend necessary adjustments. member of cabinet, he was invited to attend
• To make appropriate recommendations for all its meetings (without a right to vote).
facilitating the discharge of its duties, or on a • Some Central Ministers were appointed as
matter referred to it for advice by Central or part-time members of the commission. In
state governments. any case, the finance minister and planning
minister were the ex-officio (by virtue of)
The Allocation of Business Rules had assigned
members of the commission.
the following matters (in addition to the above)
• The commission had four to seven fulltime
to the erstwhile Planning Commission:
expert members. They enjoyed the rank of a
• Public Co-operation in National minister of state.
Development • The commission had a member-secretary.
• Specific programmes for area development He was usually a senior member of IAS. The
notified from time to time state governments were not represented in
• Perspective Planning the commission in any way. Thus, the
• Institute of Applied Manpower Research erstwhile Planning Commission was wholly
• Unique Identification Authority of India a Centre-constituted body.
(UIDAI) Critical Evaluation
• All matters relating to National Rainfed Area The erstwhile Planning Commission was
Authority (NRAA) originally established as a staff agency with
Earlier, the National Informatics Centre was also advisory role but in the course of time it had
under the erstwhile Planning Commission. emerged as a powerful and directive authority
Later, it was brought under the Ministry of whereby its recommendations were considered
Information Technology. both by the Union and states.

It should be noted that the erstwhile Planning The critics had described it as a ‘Super Cabinet’,
Commission was only a staff agency–an an ‘Economic Cabinet’, a ‘Parallel Cabinet’, the
advisory body and had no executive ‘Fifth Wheel of the Coach’ and so on.
responsibility. The following observations were made on the
It was not responsible for taking and domineering role played by the erstwhile
implementing decisions. This responsibility Planning Commission.
rested with the Central and State Governments. • Administrative Reforms Commission
Composition (ARC) of India: The ARC observed: ‘Under
the Constitution, the ministers, whether in
The following points can be noted in context of the Centre or the states, are in effect, the
the composition (membership) of the erstwhile ultimate executive authorities.
Planning Commission: Unfortunately, the Planning Commission
• The Prime Minister of India was the has, in some measures, earned the
chairman of the commission. He presided reputation of being a Parallel Cabinet and
over the meetings of the commission. sometimes, a Super Cabinet’.
• The commission had a deputy chairman. He • K. Santhanam: This eminent constitutional
was the de facto executive head (i.e., full- expert stated that, ‘Planning has superseded
time functional head) of the commission. He the federation and our country is
was responsible for the formulation and functioning like a unitary system in many
respects.
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• P.V. Rajamannar: Rajamannar, the • To secure cooperation of states in the

Chairman of the Fourth Finance execution of the Plan.
Commission, highlighted the overlapping of • To strengthen and mobilise the efforts and
functions and responsibilities between the resources of the nation in support of the
erstwhile Planning Commission and Finance Plan.
Commission in federal fiscal transfers. • To promote common economic policies in all
vital spheres.
National Development Council
• To ensure balanced and rapid development
On the 1st of January, 2016, it was reported that
of all parts of the country.
the Modi government is also going to abolish the
National Development Council (NDC) and Functions
transfer its powers to the Governing Council of
the NITI Aayog. However, till now such a To realise the above objectives, the NDC is
resolution has not been passed. assigned with the following functions:

It must also be noted here that the last meeting • To prescribe guidelines for preparation of
(57th) of the NDC was held on the 27th of the national Plan.
December, 2012 to approve the 12th Plan • To consider the national Plan as prepared by
(2012–2017). the Planning Commission (now NITI Aayog).
• To make an assessment of the resources
The National Development Council (NDC) was required for implementing the Plan and to
established in August 1952 by an executive suggest measures for augmenting them.
resolution of the Government of India on the • To consider important questions of social
recommendation of the First Five Year Plan and economic policy affecting national
(draft outline). development.
Like the erstwhile Planning Commission, it is • To review the working of the national Plan
neither a constitutional body nor a statutory from time to time.
body. • To recommend measures for achievement of
the aims and targets set out in the national
Composition Plan.
The NDC is composed of the following members. The Draft Five-Year Plan prepared by the
• The Prime Minister of India (as its Planning Commission (now NITI Aayog) is first
chairman/head). submitted to the Union Cabinet. After its
• All Union Cabinet Ministers (since 1967). approval, it is placed before the NDC, for its
• The Chief Ministers of all the states. acceptance. Then, the Plan is presented to the
• The Chief Ministers/administrators of all Parliament. With its approval, it emerges as the
union territories. official Plan and published in the official gazette.
• Members of the Planning Commission (now Therefore, the NDC is the highest body, below
NITI Aayog). the Parliament, responsible for policy matters
with regard to planning for social and economic
The secretary of the Planning Commission (now
development. However, it is listed as an
NITI Aayog) acts as the secretary to the NDC. It
advisory body to the Planning Commission
(NDC) is also provided with administrative and
(now NITI Aayog) and its recommendations are
other assistance for its work by the Planning
not binding.
Commission (now NITI Aayog).
It makes its recommendations to the Central
Objectives
and state governments and should meet at least
The NDC was established with the following twice every year.
objectives.
Critical Evaluation

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The first and foremost function of NDC is to act • To strengthen the institutional
as a bridge and link between the Central arrangements through which human rights
Government, the State Governments and the issues could be addressed in their entirety in
Planning Commission (now NITI Aayog) a more focussed manner;
especially in the field of planning, to bring about • To look into allegations of excesses,
coordination of policies and programmes of independently of the government, in a
plans. It has been, to a large extent successful in manner that would underline the
this regard. government’s commitment to protect
human rights; and
Besides, it has also served as a forum for Centre-
• To complement and strengthen the efforts
State deliberations on matters of national
that have already been made in this
importance, and also as a device for sharing
direction.
responsibility between them in the federal
political system. Composition of the Commission
The commission is a multi-member body
However, two diametrically opposite views
consisting of a chairperson and five members.
have been expressed on its working. On one
hand, it has been described as a ‘Super Cabinet’ The chairperson should be a retired chief justice
due to its wide and powerful composition, of India or a judge of the Supreme Court and
though its recommendations are only advisory members should be a serving or retired judge of
and not binding, and can hardly be ignored as the Supreme Court, a serving or retired chief
they are backed by a national mandate. On the justice of a high court and three persons (out of
other hand, it has been described as a mere which atleast one should be a woman) having
‘rubber stamp’ of the policy decisions already knowledge or practical experience with respect
taken by the Union government. This is mainly to human rights.
due to the Congress Party rule both at the Centre
and states for a long period. In addition to these full-time members, the
commission also has seven ex-officio members–
However, due to the emergence of regional the chairpersons of the National Commission for
parties in various states, the NDC is steadily Minorities, the National Commission for SCs, the
acquiring its federal character and thus National Commission for STs, the National
providing a greater say to the states in the Commission for Women, the National
preparation of national plans. Commission for BCs and the National
Commission for Protection of Child Rights and
National Human Rights Commission
the Chief Commissioner for Persons with
Establishment of the Commission Disabilities.
The National Human Rights Commission is a
statutory (and not a constitutional) body. It was The chairperson and members are appointed by
established in 1993 under a legislation enacted the president on the recommendations of a six-
by the Parliament, namely, the Protection of member committee consisting of the prime
Human Rights Act, 1993. minister as its head, the Speaker of the Lok
Sabha, the Deputy Chairman of the Rajya Sabha,
The commission is the watchdog of human leaders of the Opposition in both the Houses of
rights in the country, that is, the rights relating Parliament and the Central home minister.
to life, liberty, equality and dignity of the
individual guaranteed by the Constitution or Further, a sitting judge of the Supreme Court or
embodied in the international covenants and a sitting chief justice of a high court can be
enforceable by courts in India. appointed only after consultation with the chief
justice of India.
The specific objectives of the establishment of
the commission are: The chairperson and members hold office for a
term of three years or until they attain the age of
70 years, whichever is earlier.
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They are eligible for re-appointment. After their • To visit jails and detention places to study
tenure, the chairperson and members are not the living conditions of inmates and make
eligible for further employment under the recommendation thereon.
Central or a state government. • To review the constitutional and other legal
safeguards for the protection of human
The president can remove the chairperson or
rights and recommend measures for their
any member from the office under the following
effective implementation.
circumstances:
• To review the factors including acts of
• If he is adjudged an insolvent; or terrorism that inhibit the enjoyment of
• If he engages, during his term of office, in any human rights and recommend remedial
paid employment outside the duties of his measures.
office; or • To study treaties and other international
• If he is unfit to continue in office by reason of instruments on human rights and make
infirmity of mind or body; or recommendations for their effective
• If he is of unsound mind and stand so implementation.
declared by a competent court; or • To undertake and promote research in the
• If he is convicted and sentenced to field of human rights.
imprisonment for an offence. • To spread human rights literacy among the
people and promote awareness of the
In addition to these, the president can also
safeguards available for the protection of
remove the chairperson or any member on the
these rights.
ground of proved misbehaviour or incapacity.
• To encourage the efforts of
However, in these cases, the president has to
nongovernmental organisations (NGOs)
refer the matter to the Supreme Court for an
working in the field of human rights.
inquiry.
• To undertake such other functions as it may
If the Supreme Court, after the inquiry, upholds consider necessary for the promotion of
the cause of removal and advises so, then the human rights.
president can remove the chairperson or a
Working of the Commission
member.
The commission’s headquarters is at Delhi and
The salaries, allowances and other conditions of it can also establish offices at other places in
service of the chairperson or a member are India.
determined by the Central government. But,
It is vested with the power to regulate its own
they cannot be varied to his disadvantage after
procedure.
his appointment.
It has all the powers of a civil court and its
All the above provisions are aimed at securing
proceedings have a judicial character.
autonomy, independence and impartiality in the
functioning of the Commission. It may call for information or report from the
Central and state governments or any other
Functions of the Commission
authority subordinate thereto.
The functions of the Commission are:
The commission has its own nucleus of
• To inquire into any violation of human rights
investigating staff for investigation into
or negligence in the prevention of such
complaints of human rights violations.
violation by a public servant, either suo
motu or on a petition presented to it or on an Besides, it is empowered to utilise the services
order of a court. of any officer or investigation agency of the
• To intervene in any proceeding involving Central government or any state government
allegation of violation of human rights for the purpose.
pending before a court.

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It has also established effective cooperation and no government can ignore its
with the NGOs with first-hand information recommendation’.
about human rights violations.
Moreover, the commission has limited role,
The commission is not empowered to inquire powers and jurisdiction with respect to the
into any matter after the expiry of one year from violation of human rights by the members of the
the date on which the act constituting violation armed forces. In this sphere, the commission
of human rights is alleged to have been may seek a report from the Central government
committed. In other words, it can look into a and make its recommendations.
matter within one year of its occurrence.
The commission submits its annual or special
The commission may take any of the following reports to the Central government and to the
steps during or upon the completion of an state government concerned.
inquiry:
These reports are laid before the respective
• it may recommend to the concerned legislatures, along with a memorandum of
government or authority to make payment action taken on the recommendations of the
of compensation or damages to the victim; commission and the reasons for non-acceptance
• it may recommend to the concerned of any of such recommendations.
government or authority the initiation of
Performance of the Commission
proceedings for prosecution or any other
The various human rights issues taken up by the
action against the guilty public servant;
Commission are as follows:
• it may recommend to the concerned
government or authority for the grant of • Abolition of Bonded Labour
immediate interim relief to the victim; • Functioning of the Mental Hospitals at
• it may approach the Supreme Court or the Ranchi, Agra and Gwalior
high court concerned for the necessary • Functioning of the Government Protective
directions, orders or writs. Home (Women), Agra
• Issues Concerning Right to Food
Role of the Commission
• Review of the Child Marriage Restraint Act,
From the above, it is clear that the functions of
1929
the commission are mainly recommendatory in
nature. • Protocols to the Convention on the Rights of
the Child
It has no power to punish the violators of human • Preventing Employment of Children by
rights, nor to award any relief including Government Servants: Amendment of
monetary relief to the victim. Service Rules
Notably, its recommendations are not binding • Abolition of Child Labour
on the concerned government or authority. But, • Guidebook for the Media on Sexual Violence
it should be informed about the action taken on against Children
its recommendations within one month. • Trafficking in Women and Children: Manual
for the Judiciary for Gender Sensitisation
In this context, a former member of the • Sensitisation Programme on Prevention of
Commission observed: Sex Tourism and Trafficking
‘The government cannot wash away the • Maternal Anemia and Human Rights
recommendations made by the Commission. • Rehabilitation of Destitute Women in
The commission’s role may be Vrindavan
recommendatory, advisory, yet the Government • Combating Sexual Harassment of Women at
considers the cases forwarded by it. It is, the Work Place Harassment of Women
therefore, improper to say that the commission Passengers in Trains
is powerless. It enjoys great material authority • Abolition of Manual Scavenging Dalits Issues
including Atrocities Perpetrated on them
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• Problems Faced by Denotified and Nomadic level. Accordingly, twenty six states have
Tribes constituted the State Human Rights
• Rights of the Disabled Persons Commissions through Official Gazette
• Issues Related to Right to Health Notifications.
• Rights of Persons Affected by HIV / AIDS A State Human Rights Commission can inquire
• Relief Work for the Victims of 1999 Orissa into violation of human rights only in respect of
Cyclone subjects mentioned in the State List (List-II) and
• Monitoring of Relief Measures undertaken the Concurrent List (List-III) of the Seventh
after Gujarat Earthquake (2001) Schedule of the Constitution. However, if any
• District Complaints Authority such case is already being inquired into by the
• Population Policy - Development and National Human Rights Commission or any
Human Rights other Statutory Commission, then the State
• Review of Statutes, including Terrorist & Human Rights Commission does not inquire into
Disruptive Activities Act, and (Draft) that case.
Prevention of Terrorism Bill, 2000
• Protection of Human Rights in Areas of The central government may confer upon the
Insurgency and Terrorism State Human Rights Commissions the functions
relating to human rights being discharged by the
• Guidelines to Check Misuse of the Power of
union territories, except the union territory of
Arrest by the Police
Delhi.
• Setting up of Human Rights Cells in the
State/City Police Headquarters The functions relating to human rights in case of
• Steps to Check Custodial Deaths, Rape and union territory of Delhi are to be dealt with by
Torture the National Human Rights Commission.
• Accession to the Convention against Torture,
Composition of the Commission
Additional Protocols to the Geneva
The State Human Rights Commission is a multi-
Conventions.
member body consisting of a chairperson and
• Discussion on Adoption of a Refugee Law for
two members.
the Country
• Systemic Reforms of Police, Prisons and The chairperson should be a retired Chief
other Centers of Detention Justice or a Judge of a High Court and members
• Review of Laws, Implementation of Treaties, should be a serving or retired judge of a High
and the International Instruments on Court or a District Judge in the state with a
Human Rights minimum of seven years experience as District
• Promotion of Human Rights Literacy and Judge and a person having knowledge or
Awareness in the Educational System practical experience with respect to human
• Human Rights Training for the Armed rights.
Forces and Police, Public Authorities and The chairperson and members are appointed by
Civil Society the Governor on the recommendations of a
• Action Research on Trafficking. committee consisting of the chief minister as its
• Research through well-known academic head, the speaker of the Legislative Assembly,
institutions and NGOs on various issues the state home minister and the leader of the
relating to human rights. opposition in the Legislative Assembly.
• Constitution with NGOs and experts /
specialists on human rights issues. In the case of a state having Legislative Council,
the chairman of the Council and the leader of the
State Human Rights Commission opposition in the Council would also be the
The Protection of Human Rights Act of 1993 members of the committee.
provides for the creation of not only the
Further, a sitting judge of a High Court or a
National Human Rights Commission but also a
sitting District Judge can be appointed only after
State Human Rights Commission at the state
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consultation with the Chief Justice of the High All the above provisions are aimed at securing
Court of the concerned state. autonomy, independence and impartiality in the
functioning of the Commission.
The chairperson and members hold office for a
term of three years or until they attain the age of Functions of the Commission
70 years, whichever is earlier. The functions of the Commission are:
They are eligible for re-appointment. After their • To inquire into any violation of human rights
tenure, the chairperson and members are not or negligence in the prevention of such
eligible for further employment under a state violation by a public servant, either suo
government or the Central government. motu or on a petition presented to it or on an
order of a court.
Although the chairperson and members of a
• To intervene in any proceeding involving
State Human Rights Commission are appointed
allegation of violation of human rights
by the governor, they can be removed only by
pending before a court.
the President (and not by the governor).
• To visit jails and detention places to study
The President can remove them on the same the living conditions of inmates and make
grounds and in the same manner as he can recommendation thereon.
remove the chairperson or a member of the • To review the constitutional and other legal
National Human Rights Commission. safeguards for the protection of human
rights and recommend measures for their
Thus, he can remove the chairperson or a
effective implementation.
member under the following circumstances:
• To review the factors including acts of
• If he is adjudged an insolvent; or terrorism that inhibit the enjoyment of
• If he engages, during his term of office, in any human rights and recommend remedial
paid employment outside the duties of his measures.
office; or • To undertake and promote research in the
• If he is unfit to continue in office by reason of field of human rights.
infirmity of mind or body; or • To spread human rights literacy among the
• If he is of unsound mind and stands so people and promote awareness of the
declared by a competent court; or safeguards available for the protection of
• If he is convicted and sentenced to these rights.
imprisonment for an offence. • To encourage the efforts of non-
governmental organizations (NGOs)
In addition to these, the president can also
working in the field of human rights.
remove the chairperson or a member on the
• To undertake such other functions as it may
ground of proved misbehaviour or incapacity.
consider necessary for the promotion of
However, in these cases, the President has to
human rights.
refer the matter to the Supreme Court for an
inquiry. Working of the Commission
The Commission is vested with the power to
If the Supreme Court, after the inquiry, upholds
regulate its own procedure.
the cause of removal and advises so, then the
President can remove the chairperson or a It has all the powers of a civil court and its
member. proceedings have a judicial character.
The salaries, allowances and other conditions of It may call for information or report from the
service of the chairperson or a member are state government or any other authority
determined by the state government. But, they subordinate thereto.
cannot be varied to his disadvantage after his
The Commission is not empowered to inquire
appointment.
into any matter after the expiry of one year from
the date on which the act constituting violation
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of human rights is alleged to have been appoints an advocate (who has practiced for
committed. In other words, it can look into a seven years) as a special public prosecutor.
matter within one year of its occurrence.
2019 Amendment Act
The Commission may take any of the following The various provisions or features of the
steps during or upon the completion of an Protection of Human Rights (Amendment) Act,
inquiry: 2019, are as follows:
• it may recommend to the state government • It provided that a person who has been a
or authority to make payment of judge of the Supreme Court is also made
compensation or damages to the victim; eligible to be appointed as Chairperson of
• it may recommend to the state government the National Human Rights Commission (in
or authority the initiation of proceedings for addition to the person who has been the
prosecution or any other action against the Chief Justice of India).
guilty public servant; • It increased the number of members of the
• it may recommend to the state government National Human Rights Commission (who
or authority for the grant of immediate are to be appointed from amongst persons
interim relief to the victim; having knowledge or practical experience
• it may approach the Supreme Court or the with respect to human rights) from two to
state high court for the necessary directions, three out of which at least one has to be a
orders or writs. woman.
• It made the chairpersons of the National
From the above, it is clear that the functions of
Commission for BCs and the National
the commission are mainly recommendatory in
Commission for Protection of Child Rights as
nature. It has no power to punish the violators
well as the Chief Commissioner for Persons
of human rights, nor to award any relief
with Disabilities as the ex-officio members of
including monetary relief to the victim.
the National Human Rights Commission.
Notably, its recommendations are not binding • It reduced the term of the chairperson of
on the state government or authority. But, it members of the National Human Rights
should be informed about the action taken on its Commission as well as the State Human
recommendations within one month. Rights Commission from five to three years.
It also made them eligible for re-
The Commission submits its annual or special
appointment.
reports to the state government. These reports
• It provided that a person who has been a
are laid before the state legislature, along with a
judge of a High Court is also made eligible to
memorandum of action taken on the
be appointed as Chairperson of the State
recommendations of the Commission and the
Human Rights Commission (in addition to
reasons for nonacceptance of any of such
the person who has been the Chief Justice of
recommendations.
a High Court).
Human Rights Courts • It provided that the central government may
The Protection of Human Rights Act (1993) also confer upon the State Human Rights
provides for the establishment of Human Rights Commissions the functions relating to
Court in every district for the speedy trial of human rights being discharged by the union
violation of human rights. territories, except the union territory of
Delhi. The functions relating to human rights
These courts can be set up by the state
in case of union territory of Delhi are to be
government only with the concurrence of the
dealt with by the National Human Rights
Chief Justice of the High Court of that state.
Commission.
For every Human Rights Court, the state • It provided that the Secretary-General of the
government specifies a public prosecutor or National Human Rights Commission shall
exercise all administrative and financial
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powers (except judicial functions and the of profit or connected with any political party or
power to make regulations), subject to carrying on any business or pursuing any
control of the chairperson. profession.
• It provided that the Secretary of the State
Tenure and Service Conditions
Human Rights Commission shall exercise all
The Chief Information Commissioner and an
administrative and financial powers of the
Information Commissioner shall hold office for
Commission, subject to control of the
such term as prescribed by the Central
chairperson.
Government or until they attain the age of 65
Central Information Commission years, whichever is earlier.
The Central Information Commission was They are not eligible for re-appointment.
established by the Central Government in 2005.
The President can remove the Chief Information
It was constituted through an Official Gazette Commissioner or any Information
Notification under the provisions of the Right to Commissioner from the office under the
Information Act (2005). Hence, it is not a following circumstances:
constitutional body.
• if he is adjudged an insolvent; or
The Central Information Commission is a high- • if he has been convicted of an offence which
powered independent body which looks into the
(in the opinion of the President) involves a
complaints made to it and decide the appeals.
moral turpitude; or
It entertains complaints and appeals pertaining • if he engages during his term of office in any
to offices, financial institutions, public sector paid employment outside the duties of his
undertakings, etc., under the Central office; or
Government and the Union Territories. • if he is (in the opinion of the President) unfit
to continue in office due to infirmity of mind
Composition
or body; or
The Commission consists of a Chief Information
• if he has acquired such financial or other
Commissioner and not more than ten
interest as is likely to affect prejudicially his
Information Commissioners.
official functions.
The Commission, when constituted initially, had
In addition to these, the President can also
five commissioners including the Chief
remove the Chief Information Commissioner or
Information Commissioner.
any Information Commissioner on the ground of
At present, the Commission has seven proved misbehaviour or incapacity. However, in
Information Commissioners apart from the these cases, the President has to refer the matter
Chief Information Commissioner. They are to the Supreme Court for an enquiry.
appointed by the President on the
If the Supreme Court, after the enquiry, upholds
recommendation of a committee consisting of
the cause of removal and advises so, then the
the Prime Minister as Chairperson, the Leader of
President can remove him.
Opposition in the Lok Sabha and a Union Cabinet
Minister nominated by the Prime Minister. The salary, allowances and other service
conditions of the Chief Information
They should be persons of eminence in public
Commissioner and an Information
life with wide knowledge and experience in law,
Commissioner shall be such as prescribed by the
science and technology, social service,
Central Government. But, they cannot be varied
management, journalism, mass media or
to his disadvantage during service.
administration and governance.
Powers and Functions
They should not be a Member of Parliament or
The powers and functions of the Central
Member of the Legislature of any State or Union
Information Commission are:
Territory. They should not hold any other office
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• It is the duty of the Commission to receive o directing the public authority to appoint
and inquire into a complaint from any a Public Information Officer where none
person: exists;
o who has not been able to submit an o publishing information or categories of
information request because of non- information;
appointment of a Public Information o making necessary changes to the
Officer; practices relating to management,
o who has been refused information that maintenance and destruction of records;
was requested; o enhancing training provision for officials
o who has not received response to his on the right to information;
information request within the specified o seeking an annual report from the public
time limits; authority on compliance with this Act;
o who thinks the fees charged are o requiring the public authority to
unreasonable; compensate for any loss or other
o who thinks information given is detriment suffered by the applicant;
incomplete, misleading or false; and o imposing penalties under this Act; and
o any other matter relating to obtaining o rejecting the application.
information. • The Commission submits an annual report
• The Commission can order inquiry into any to the Central Government on the
matter if there are reasonable grounds (suo- implementation of the provisions of this Act.
moto power). The Central Government places this report
• While inquiring, the Commission has the before each House of Parliament.
powers of a civil court in respect of the • When a public authority does not conform to
following matters: the provisions of this Act, the Commission
o summoning and enforcing attendance of may recommend (to the authority) steps
persons and compelling them to give oral which ought to be taken for promoting such
or written evidence on oath and to conformity.
produce documents or things;
o requiring the discovery and inspection of State Information Commission
documents; The Right to Information Act of 2005 provides
o receiving evidence on affidavit; for the creation of not only the Central
o requisitioning any public record from Information Commission but also a State
any court or office; Information Commission at the state level.
o issuing summons for examination of Accordingly, all the states have constituted the
witnesses or documents; and State Information Commissions through Official
o any other matter which may be Gazette Notifications.
prescribed.
• During the inquiry of a complaint, the The State Information Commission is a high-
Commission may examine any record which powered independent body which looks into the
is under the control of the public authority complaints made to it and decide the appeals.
and no such record may be withheld from it It entertains complaints and appeals pertaining
on any grounds. In other words, all public to offices, financial institutions, public sector
records must be given to the Commission undertakings, etc., under the concerned state
during inquiry for examination. government.
• The Commission has the power to secure
compliance of its decisions from the public Composition
authority. This includes: The Commission consists of a State Chief
o providing access to information in a Information Commissioner and not more than
particular form; ten State Information Commissioners.

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They are appointed by the Governor on the However, in these cases, the Governor has to
recommendation of a committee consisting of refer the matter to the Supreme Court for an
the Chief Minister as Chairperson, the Leader of enquiry. If the Supreme Court, after the enquiry,
Opposition in the Legislative Assembly and a upholds the cause of removal and advises so,
State Cabinet Minister nominated by the Chief then the Governor can remove him.
Minister.
The salary, allowances and other service
They should be persons of eminence in public conditions of the State Chief Information
life with wide knowledge and experience in law, Commissioner and a State Information
science and technology, social service, Commissioner shall be such as prescribed by the
management, journalism, mass media or Central Government. But, they cannot be varied
administration and governance. to his disadvantage during service.
They should not be a Member of Parliament or Powers and Functions
Member of the Legislature of any State or Union The powers and functions of the State
Territory. Information Commission are:
They should not hold any other office of profit • It is the duty of the Commission to receive
or connected with any political party or carrying and inquire into a complaint from any
on any business or pursuing any profession. person:
o who has not been able to submit an
Tenure and Service Conditions
information request because of non-
The State Chief Information Commissioner and
appointment of a Public Information
a State Information Commissioner shall hold
Officer;
office for such term as prescribed by the Central
o who has been refused information that
Government or until they attain the age of 65
was requested;
years, whichever is earlier. They are not eligible
o who has not received response to his
for re-appointment.
information request within the specified
The Governor can remove the State Chief time limits;
Information Commissioner or any State o who thinks the fees charged are
Information Commissioner from the office unreasonable;
under the following circumstances: o who thinks information given is
incomplete, misleading or false; and
• if he is adjudged an insolvent; or
o any other matter relating to obtaining
• if he has been convicted of an offence which information.
(in the opinion of the Governor) involves a
• The Commission can order inquiry into any
moral turpitude; or
matter if there are reasonable grounds (suo-
• if he engages during his term of office in any moto power).
paid employment outside the duties of his
• While inquiring, the Commission has the
office; or
powers of a civil court in respect of the
• if he is (in the opinion of the Governor) unfit following matters:
to continue in office due to infirmity of mind o summoning and enforcing attendance of
or body; or persons and compelling them to give oral
• if he has acquired such financial or other or written evidence on oath and to
interest as is likely to affect prejudicially his produce documents or things;
official functions. o requiring the discovery and inspection of
In addition to these, the Governor can also documents;
remove the State Chief Information o receiving evidence on affidavit;
Commissioner or any State Information o requisitioning any public record from
Commissioner on the ground of proved any court or office;
misbehaviour or incapacity. o issuing summons for examination of
witnesses or documents; and
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o any other matter which may be Before this amendment, their term was fixed
prescribed. for 5 years.
• During the inquiry of a complaint, the • It provided that the salary, allowances and
Commission may examine any record which other service conditions of the Chief
is under the control of the public authority Information Commissioner and an
and no such record may be withheld from it Information Commissioner shall be such as
on any grounds. In other words, all public prescribed by the Central Government.
records must be given to the Commission Before this amendment, the salary,
during inquiry for examination. allowances and other service conditions of
• The Commission has the power to secure the Chief Information Commissioner were
compliance of its decisions from the public similar to those of the Chief Election
authority. This includes: Commissioner and that of an Information
o providing access to information in a Commissioner were similar to those of an
particular form; Election Commissioner.
o directing the public authority to appoint • It provided that the State Chief Information
a Public Information Officer where none Commissioner and a State Information
exists; Commissioner shall hold office for such term
o publishing information or categories of as prescribed by the Central government.
information; Before this amendment, their term was fixed
o making necessary changes to the for 5 years.
practices relating to management, • It provided that the salary, allowances and
maintenance and destruction of records; other service conditions of the State Chief
o enhancing training provision for officials Information Commissioner and a State
on the right to information Information Commissioner shall be such as
o seeking an annual report from the public prescribed by the Central Government.
authority on compliance with this Act; Before this amendment, the salary,
o requiring the public authority to allowances and other service conditions of
compensate for any loss or other the State Chief Information Commissioner
detriment suffered by the applicant; were similar to those of an Election
o imposing penalties under this Act; an Commissioner and that of a State
o rejecting the application. Information Commissioner were similar to
• The Commission submits an annual report those of the Chief Secretary of the state
to the State Government on the government.
implementation of the provisions of this Act. • It removed the provisions regarding
The State Government places this report deductions in salary of the Chief Information
before the State Legislature. Commissioner, an Information
• When a public authority does not conform to Commissioner, the State Chief Information
the provisions of this Act, the Commission Commissioner and a State Information
may recommend (to the authority) steps Commissioner due to pension or any other
which ought to be taken for promoting such retirement benefits received by them for
conformity. their previous government service.
RTI Amendment Act, 2019 Central Vigilance Commission
The various features or provisions of the Right Establishment
to Information (Amendment) Act, 2019 are as The Central Vigilance Commission (CVC) is the
follows: main agency for preventing corruption in the
• It provided that the Chief Information Central government.
Commissioner and an Information It was established in 1964 by an executive
Commissioner shall hold office for such term resolution of the Central government. Its
as prescribed by the Central Government. establishment was recommended by the
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Santhanam Committee on Prevention of • If he is adjudged an insolvent; or

Corruption (1962–64). Thus, originally the CVC • If he has been convicted of an offence which
was neither a constitutional body nor a (in the opinion of the Central government)
statutory body. Later, in 2003, the Parliament involves a moral turpitude; or
enacted a law conferring statutory status on the • If he engages, during his term of office, in any
CVC. paid employment outside the duties of his
office; or
In 2004, the CVC has been designated as the
agency to receive and act on complaints or • If he is (in the opinion of the president), unfit
disclosure on any allegation of corruption or to continue in office by reason of infirmity of
misuse of office from whistle blowers under the mind or body; or
“Public Interest Disclosure and Protection of • If he has acquired such financial or other
Informers’ Resolution” (PIDPI), which is interest as is likely to affect prejudicially his
popularly known as “Whistle Blowers” official functions.
Resolution. In addition to these, the president can also
The Commission is also empowered as the only remove the Central Vigilance Commissioner or
designated agency to take action against any vigilance commissioner on the ground of
complainants making motivated or vexatious proved misbehaviour or incapacity. However, in
complaints. these cases, the president has to refer the matter
to the Supreme Court for an enquiry.
The CVC is conceived to be the apex vigilance
institution, free of control from any executive If the Supreme Court, after the enquiry, upholds
authority, monitoring all vigilance activity the cause of removal and advises so, then the
under the Central Government and advising president can remove him.
various authorities in Central Government He is deemed to be guilty of misbehaviour, if he
organisations in planning, executing, reviewing
and reforming their vigilance work. • is concerned or interested in any contract or
agreement made by the Central government,
Composition or
The CVC is a multi-member body consisting of a • participates in any way in the profit of such
Central Vigilance Commissioner (chairperson) contract or agreement or in any benefit or
and not more than two vigilance emolument arising therefrom otherwise
commissioners. than as a member and in common with the
They are appointed by the president by warrant other members of an incorporated company.
under his hand and seal on the recommendation The salary, allowances and other conditions of
of a three-member committee consisting of the service of the Central Vigilance Commissioner
prime minister as its head, the Union minister of are similar to those of the Chairman of UPSC and
home affairs and the Leader of the Opposition in that of the vigilance commissioner are similar to
the Lok Sabha. those of a member of UPSC. But they cannot be
They hold office for a term of four years or until varied to his disadvantage after his
they attain the age of sixty-five years, whichever appointment.
is earlier. Organisation
After their tenure, they are not eligible for The CVC has its own Secretariat, Chief Technical
further employment under the Central or a state Examiners’ Wing (CTE) and a wing of
government. Commissioners for Departmental Inquiries
(CDIs).
The president can remove the Central Vigilance
Commissioner or any vigilance commissioner Secretariat: The Secretariat consists of a
from the office under the following Secretary, Joint Secretaries, Deputy Secretaries,
circumstances: Under Secretaries and office staff.
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Chief Technical Examiners’ Wing: The Chief the investigation of offences under the
Technical Examiners’ Organisation constitutes Prevention of Corruption Act, 1988.
the technical wing of the CVC. It consists of Chief • To give directions to the Delhi Special Police
Engineers (designated as Chief Technical Establishment (CBI) for superintendence in
Examiners) and supporting engineering staff. so far as it relates to the investigation of
offences under the Prevention of Corruption
The main functions assigned to this
Act, 1988.
organisation are as follows:
• To review the progress of investigations
• Technical audit of construction works of conducted by the Delhi Special Police
Government organisations from a vigilance Establishment into offences alleged to have
angle been committed under the prevention of
• Investigation of specific cases of complaints Corruption Act, 1988.
relating to construction works • To review the progress of applications
• Extension of assistance to CBI in their pending with the competent authorities for
investigations involving technical matters sanction of prosecution under the
and for evaluation of properties in Delhi Prevention of Corruption Act, 1988.
• Tendering of advice / assistance to the CVC • To tender advise to the Central government
and Chief Vigilance Officers in vigilance and its authorities on such matters as are
cases involving technical matters referred to it by them.
• To exercise superintendence over the
Commissioners for Departmental Inquiries:
vigilance administration in the ministries of
The CDIs function as Inquiry Officers to conduct
the Central government or its authorities.
oral inquiries in departmental proceedings
• To undertake or cause an inquiry into
initiated against public servants.
complaints received under the Public
Functions Interest Disclosure and Protection of
The functions of the CVC are: Informers’ Resolution and recommend
appropriate action.
• To inquire or cause an inquiry or
• The Central Government is required to
investigation to be conducted on a reference
consult the CVC in making rules and
made by the Central government wherein it
regulations governing the vigilance and
is alleged that a public servant being an
disciplinary matters relating to the members
employee of the Central government or its
of Central Services and All India Services.
authorities, has committed an offence under
• The Central Vigilance Commissioner (CVC)
the Prevention of Corruption Act, 1988.
is the Chairperson and the two Vigilance
• To inquire or cause an inquiry or
Commissioners along with Secretaries of
investigation to be conducted into any
M/o Home Affairs, D/o Personnel and
complaint against any official belonging to
Training and the D/o Revenue in M/o
the below mentioned category of officials
Finance are the Members of the Selection
wherein it is alleged that he has committed
Committees, on whose recommendation the
an offence under the Prevention of
Central Government appoints the Director of
Corruption Act, 1988:
Enforcement. Further, this Committee, in
o Members of all-India services serving in
consultation with the Director of
the Union and Group ‘A’ officers of the
Enforcement, recommends officers for
Central government; and
appointments to the posts above the level of
o Specified level of officers of the
Deputy Director of Enforcement.
authorities of the Central government.
• The Central Vigilance Commission has been
• To exercise superintendence over the
notified as a specific authority to receive
functioning of the Delhi Special Police
information relating to suspicious
Establishment (CBI) in so far as it relates to
transactions under the Prevention of Money
Laundering Act, 2002.
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The Lokpal and Lokayuktas Act (2013) • Chief Executives and Executives on the
amended both the CVC Act (2003) and the Delhi Board and other officers of E-7 and above in
Special Police Establishment Act (1946) and Schedule ‘C’ and ‘D’ Public Sector
made the following changes with respect to the Undertakings.
functions of the CVC. • Managers and above in General Insurance
Companies.
• The Director of Prosecution under the
• Senior Divisional Managers and above in Life
Directorate of Prosecution in CBI shall be
Insurance Corporation.
appointed by the Central Government on the
• Officers drawing salary of ₹8700/- per
recommendation of the Central Vigilance
month (pre-revised) and above on Central
Commission.
Government D.A. pattern, as may be revised
• The Central Vigilance Commissioner (CVC)
from time to time, in societies and local
is the Chairperson and the two Vigilance
authorities owned or controlled by the
Commissioners along with Secretaries of
Central Government.
M/o Home Affairs and D/o Personnel and
Training are the Members of the Selection Working
Committees, on whose recommendation the The CVC conducts its proceedings at its
Central Government appoints officers to the headquarters (New Delhi).
posts of the level of SP and above in the CBI
except Director of CBI. It is vested with the power to regulate its own
procedure.
• The Commission has been empowered to
conduct preliminary inquiry into complaints It has all the powers of a civil court and its
referred by Lokpal in respect of officers and proceedings have a judicial character.
officials of Groups A, B, C & D, for which a
Directorate of Inquiry for making It may call for information or report from the
preliminary inquiry is to be set up in the Central government or its authorities so as to
Commission. The preliminary inquiry enable it to exercise general supervision over
reports in such matters referred by Lokpal in the vigilance and anti-corruption work in them.
respect of Group A and B officers are The CVC, on receipt of the report of the inquiry
required to be sent to the Lokpal by the undertaken by any agency on a reference made
Commission. Further, as per mandate, the by it, advises the Central government or its
Commission is to cause further investigation authorities as to the further course of action.
into such Lokpal references in respect of
Group C and D officials and decide on further The Central government or its authorities shall
course of action against them. consider the advice of the CVC and take
appropriate action. However, where the Central
Jurisdiction government or any of its authorities does not
The jurisdiction of the CVC extends to the agree with the advice of the CVC, it shall
following: communicate the reasons (to be recorded in
writing) to the CVC.
• Members of All India Services serving in
connection with the affairs of the Union and The CVC has to present annually to the
Group A officers of the Central Government. President a report on its performance. The
• Officers of the rank of Scale V and above in President places this report before each House
the Public Sector Banks. of Parliament.
• Officers in Grade D and above in Reserve
Vigilance Units in the ministries
Bank of India, NABARD and SIDBI.
All ministries/departments in the Union
• Chief Executives and Executives on the
Government have a Chief Vigilance Officer
Board and other officers of E-8 and above in
(CVO) who heads the Vigilance Division of the
Schedule ‘A’ and ‘B’ Public Sector
organisation concerned, assisting and advising
Undertakings.
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the Secretary or Head of Office in all matters believes that the information disclosed by
pertaining to vigilance. him and the allegation contained therein is
substantially true.
He also provides a link between his organisation
• Disclosures can be made in writing or by
and the Central Vigilance Commission on the
email message in accordance with the
one hand and his organisation and the Central
procedure as may be prescribed and contain
Bureau of Investigation on the other.
full particulars and be accompanied by
Vigilance functions performed by the CVO supporting documents, or other material.
include • However, no action shall be taken on a
disclosure if it does not indicate the identity
• Collecting intelligence about corrupt
of the complainant or public servant or if
practices of the employees of his
“the identity of the complainant or public
organisation
servant is found to be incorrect.”
• Investigating verifiable allegations reported
to him The Act is not applicable to the Special
• Processing investigation reports for further Protection Group.
consideration of the disciplinary authority
concerned
Central Bureau of Investigation
• Referring matters to the Central Vigilance Establishment of CBI
Commission for advice wherever necessary The Central Bureau of Investigation (CBI) was
set up in 1963 by a resolution of the Ministry of
Whistle Blowers Protection Act (2014) Home Affairs. Later, it was transferred to the
The salient features of the Whistle Blowers Ministry of Personnel and now it enjoys the
Protection Act (2014) are as follows: status of an attached office.
• The Act provides a mechanism for The Special Police Establishment (which looked
protecting the identity of whistle blowers (a into vigilance cases) setup in 1941 was also
term given to people who expose merged with the CBI.
corruption). People who expose corruption
in Government or irregularities by public The establishment of the CBI was recommended
functionaries can now be free of any fear of by the Santhanam Committee on Prevention of
victimization. Corruption (1962–1964).
• The Act also provides for a system to The CBI is not a statutory body. It derives its
encourage people to disclose information powers from the Delhi Special Police
about corruption or the wilful misuse of Establishment Act, 1946.
power by public servants, including
ministers. The CBI is the main investigating agency of the
• As per the Act, a person can make a public Central Government. It plays an important role
in the prevention of corruption and maintaining
interest disclosure on corruption before a
integrity in administration.
competent authority - which is at present
the Central Vigilance Commission (CVC). The It also provides assistance to the Central
government, by notification, can appoint any Vigilance Commission and Lokpal.
other body also for receiving such
complaints about corruption. There is a difference between the nature of
• The Act, however, lays down punishment of cases investigated by the National Investigation
up to two years in prison and a fine of up to Agency (NIA) and the CBI.
₹30,000 for false or frivolous complaints. The NIA has been constituted after the Mumbai
• The Act says that every disclosure shall be terror attack in 2008 mainly for investigation of
made in good faith and the person making incidents of terrorist attacks, funding of
the disclosure shall provide a personal terrorism and other terror related crime,
declaration stating that he reasonably whereas the CBI investigates crime of
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corruption, economic offences and serious and The Director of CBI has been provided security
organized crime other than terrorism. of two-year tenure in office by the CVC Act,
2003.
Organisation of CBI
Originally (1963), the CBI was set up with the The Lokpal and Lokayuktas Act (2013)
following six divisions: amended the Delhi Special Police Establishment
Act (1946) and made the following changes with
• Investigation and Anti-Corruption Division
respect to the composition of the CBI:
(Delhi Special Police Establishment)
• Technical Division • The Central Government shall appoint the
• Crime Records and Statistics Division Director of CBI on the recommendation of a
• Research Division three-member committee consisting of the
• Legal and General Division Prime Minister as Chairperson, the Leader of
• Administration Division Opposition in the Lok Sabha and the Chief
Justice of India or Judge of the Supreme
At present (2019), the CBI has the following Court nominated by him.
seven divisions: • There shall be a Directorate of prosecution
• Anti-Corruption Division headed by a Director for conducting the
• Economic Offences Division prosecution of cases under the Lokpal and
• Special Crimes Division Lokayuktas Act, 2013. The Director of
Prosecution shall be an officer not below the
• Policy and Coordination Division
rank of Joint Secretary to the Government of
• Administration Division
India. He shall function under the overall
• Directorate of Prosecution
supervision and control of the Director of
• Central Forensic Science Laboratory
CBI. He shall be appointed by the Central
Composition of CBI Government on the recommendation of the
The CBI is headed by a Director. He is assisted Central Vigilance Commission. He shall hold
by a special director or an additional director. office for a period of two years.
• The Central Government shall appoint
Additionally, it has a number of joint directors,
officers of the rank of SP and above in the CBI
deputy inspector generals, superintendents of
on the recommendation of a committee
police and all other usual ranks of police
consisting of the Central Vigilance
personnel.
Commissioner as Chairperson, the Vigilance
In total, it has about 5000 staff members, about Commissioners, the Secretary of the Home
125 forensic scientists and about 250 law Ministry and the Secretary of the
officers. Department of Personnel.

The Director of CBI as Inspector-General of Later, the Delhi Special Police Establishment
Police, Delhi Special Police Establishment, is (Amendment) Act, 2014 made a change in the
responsible for the administration of the composition of the committee related to the
organisation. appointment of the Director of CBI.

With the enactment of CVC Act, 2003, the It states that where there is no recognized
superintendence of Delhi Special Police leader of opposition in the Lok Sabha, then the
Establishment vests with the Central leader of the single largest opposition party in
Government save investigations of offences the Lok Sabha would be a member of that
under the Prevention of Corruption Act, 1988, in committee.
which, the superintendence vests with the
Central Vigilance Commission.

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Functions of CBI Provision of prior permission

The functions of CBI are: The CBI is required to obtain the prior approval
of the Central Government before conducting
• Investigating cases of corruption, bribery
any inquiry or investigation into an offence
and misconduct of Central government
committed by officers of the rank of joint
employees.
secretary and above in the Central Government
• Investigating cases relating to infringement and its authorities.
of fiscal and economic laws, that is, breach of
laws concerning export and import control, However, on May 6, 2014, the Supreme Court
customs and central excise, income tax, held as invalid the legal provision that makes
foreign exchange regulations and so on. prior sanction mandatory for the Central
However, such cases are taken up either in Bureau of Investigation to conduct a probe
consultation with or at the request of the against senior bureaucrats in corruption cases
department concerned. under the Prevention of Corruption Act.
• Investigating serious crimes, having national
A Constitution Bench held that Section 6A of the
and international ramifications, committed Delhi Special Police Establishment Act, which
by organised gangs of professional
granted protection to joint secretary and above
criminals. officers from facing even a preliminary inquiry
• Coordinating the activities of the anti- by the CBI in corruption cases, was violative of
corruption agencies and the various state Article 14.
police forces
• Taking up, on the request of a state Welcoming the court order, CBI Director said:
government, any case of public importance “It is a landmark judgment that will empower
for investigation. the agency in the investigations into several
• Maintaining crime statistics and cases pending due to the provision that has now
disseminating criminal information. been struck down by the Constitution Bench.
We had for long been of the view that inquiry
The CBI is a multidisciplinary investigation against senior officials need not require any
agency of the Government of India and prior permission.”
undertakes investigation of corruption-related
cases, economic offences and cases of Writing the judgment, the CJI said, “Corruption
conventional crime. is an enemy of the nation and tracking down a
corrupt public servant, howsoever high he may
It normally confines its activities in the anti- be, and punishing such person is a necessary
corruption field to offences committed by the mandate under the PC Act, 1988.
employees of the Central Government and
Union Territories and their public sector The status or position of a public servant does
undertakings. It takes up investigation of not qualify the person from exemption from
conventional crimes like murder, kidnapping, equal treatment.
rape etc., on reference from the state The decision-making power does not segregate
governments or when directed by the Supreme corrupt officers into two classes as they are
Court/High Courts. common crime doers and have to be tracked
The CBI acts as the “National Central Bureau” of down by the same process of inquiry and
Interpol in India. The Interpol Wing of the CBI investigation.”
coordinates requests for investigation-related The Bench said, “Section 6A of the DSPE Act
activities originating from Indian law [granting protection to one set of officers] is
enforcement agencies and the member directly destructive and runs counter to the
countries of the Interpol. object and reason of the PC Act, 1988.
It also undermines the object of detecting and
punishing high-level corruption.
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How can two public servants against whom statutory bodies established and financed by
there are allegations of corruption or graft or the Central Government.
bribe taking or criminal misconduct under the
PC Act, 1988, be made to be treated differently Lokpal and Lokayuktas
because one happens to be a junior officer and Global Scenario
the other a senior decision maker?” Modern democratic states are characterised by
a welfare orientation.
“The provision in Section 6A impedes tracking
down the corrupt senior bureaucrats as without Hence, the government has come to play an
previous approval of the Central Government, important role in the socio-economic
the CBI cannot even hold preliminary inquiry development of a nation. This has resulted in the
much less an investigation into the allegations. expansion of bureaucracy and the
The protection under Section 6A has propensity multiplication of administrative process, which
of shielding the corrupt,” the Bench added. in turn increased the administrative power and
discretion enjoyed by the civil servants at
Observing that there could not be any different levels of the government.
protection to corrupt public servants, the Bench
said, “The aim and object of investigation is The abuse of this power and discretion by civil
ultimately to search for truth and any law that servants opens up scope for harassment,
impedes that object may not stand the test of malpractices, maladministration and
Article 14. Breach of rule of law, in our opinion, corruption. Such a situation gives rise to
amounts to negation of equality under Article citizens’ grievances against administration.
14. Section 6-A fails in the context of these facets The success of democracy and the realisation of
of Article 14.” socio-economic development depends on the
CBI vs. State Police extent to which the citizens’ grievances are
The role of the Special Police Establishment (a redressed. Therefore, the following institutional
division of CBI) is supplementary to that of the devices have been created in different parts of
state police forces. the world to deal with the redressal of these
grievances:
Along with state police forces, the Special Police
Establishment (SPE) enjoys the concurrent • The Ombudsman System
powers of investigation and prosecution for • The Administrative Courts System
offences under the Delhi Police Establishment • The Procurator System
Act, 1946.
The earliest democratic institution created in
However, to avoid duplication and overlapping the world for the redressal of citizens’ grievance
of cases between these two agencies, the is the Scandinavian institution of Ombudsman.
following administrative arrangements have Donald C. Rowat, an international authority on
been made: the Ombudsman, calls it a “uniquely appropriate
institution for dealing with the average citizens’
• The SPE shall take up such cases which are complaints about unfair administrative
essentially and substantially concerned with actions.”
the Central Government’s affairs or
employees, even if they also involve certain The institution of Ombudsman was first created
state government employees. in Sweden in 1809. ‘Ombud’ is a Swedish term
• The state police force shall take up such and refers to a person who acts as the
cases which are substantially concerned representative or spokesman of another person.
with the state government’s affairs or According to Donald C. Rowat, Ombudsman
employees, even if they also involve certain refers to “an officer appointed by the legislature
Central Government employees. to handle complaints against administrative and
• The SPE shall also take up cases against judicial action.”
employees of public undertakings or
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The Swedish Ombudsman deals with the In sum, the characteristics of the Swedish
citizens’ grievances in the following matters: institution of Ombudsman are as follows:
• Abuse of administrative discretion, that is, • Independence of action from the executive
misuse of official power and authority • Impartial and objective investigation of
• Maladministration, that is, inefficiency in complaints
achieving the targets • Suo moto power to start investigations
• Administrative corruption, that is, • Uninterrupted access to all the files of
demanding bribery for doing things administration
• Nepotism, that is supporting one’s own kith • Right to report to the Parliament as opposed
and kin in matters like providing to the executive; the institution of
employment ombudsman is based on the doctrine of
• Discourtesy, that is, misbehaviour of various administrative accountability to legislature.
kinds, for instance, use of abusive language. • Wide publicity given to its working in press
and other media
The Swedish Ombudsman is appointed by the
• Direct, simple, informal, cheap and speedy
Parliament for a term of four years. He can be
method of handling complaints
removed only by the Parliament on ground of its
loss of confidence in him. From Sweden, the institution of Ombudsman
spread to other Scandinavian countries–Finland
He submits his annual report to the Parliament
(1919), Denmark (1955) and Norway (1962).
and hence, is also known as ‘Parliamentary
Ombudsman.’ New Zealand is the first Commonwealth country
in the world to have adopted the Ombudsman
But he is independent of the Parliament
system in the form of a Parliamentary
(legislature) as well as the executive and
Commissioner for Investigation in 1962.
judiciary.
The United Kingdom adopted Ombudsman-like
The Ombudsman is a constitutional authority
institution called Parliamentary Commissioner
and enjoys the powers to supervise the
for Administration in 1967.
compliance of laws and regulations by the
public officials, and see that they discharge their Since then, more than 40 counties of the world
duties properly. have adopted Ombudsman-like institutions
with different nomenclature and functions.
In other words, he keeps a watch over all public
officials–civil, judicial and military–so that they The Ombudsman in India is called
function impartially, objectively and legally that Lokpal/Lokayukta.
is, in accordance with the law. However, he has
no power to reverse or quash a decision and has Donald. C. Rowat says that the institution of
no direct control over administration or the Ombudsman is a “bulwark of democratic
courts. government against the tyranny of officialdom.”

The Ombudsman can act either on the basis of a Another unique institutional device created for
complaint received from the citizen against the redressal of citizens’ grievances against
unfair administrative action or suo moto (i.e. on administrative authorities, is the French system
his own initiative). of Administrative Courts.

He can prosecute any erring official including Due to its success in France, the system has
the judges. However, he himself cannot inflict gradually spread to many other European and
any punishment. He only reports the matter to African countries like Belgium, Greece and
Turkey.
the higher authorities for taking the necessary
corrective action. The socialist countries like the former USSR
(now Russia), China, Poland, Hungary,
Czechoslovakia and Romania have created their
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own institutional device for the redressal of Lokpal

citizens’ grievances. It is called ‘Procurator The Administrative Reforms Commission (ARC)
System’ in these countries. of India (1966–1970) recommended the setting
up of two special authorities designated as
It should be noted here that the office of the
‘Lokpal’ and ‘lokayukta’ for the redressal of
Procurator-General is still functioning in Russia.
citizens’ grievances.
He is appointed for a tenure of seven years.
These institutions were to be set up on the
Position in India pattern of the institution of Ombudsman in
The existing legal and institutional framework Scandinavian countries and the parliamentary
to check corruption and redress citizens’ commissioner for investigation in New Zealand.
grievances in India consists of the following:
The Lokpal would deal with complaints against
• Public Servants (Enquiries) Act, 1850 ministers and secretaries at Central and state
• Indian Penal Code, 1860 levels, and the lokayukta (one at the Centre and
• Special Police Establishment, 1941 one in every state) would deal with complaints
• Delhi Police Establishment Act, 1946 against other specified higher officials.
• Prevention of Corruption Act, 1988 The ARC kept the judiciary outside the purview
• Commissions of Inquiry Act, 1952 (against of Lokpal and lokayukta as in New Zealand. But,
political leaders and eminent public men) in Sweden the judiciary is within the purview of
• All-India Services (Conduct) Rules, 1968 Ombudsman.
• Central Civil Services (Conduct) Rules, 1964
• Railway Services (Conduct) Rules, 1966 According to the ARC, the Lokpal would be
appointed by the president after consultation
• Vigilance organisations in ministries /
with the chief justice of India, the Speaker of Lok
departments, attached and subordinate
Sabha and the Chairman of the Rajya Sabha.
offices and public undertakings
• Central Bureau of Investigation, 1963 The ARC also recommended that the institutions
• Central Vigilance Commission, 1964 of Lokpal and lokayukta should have the
• State Vigilance Commissions, 1964 following features:
• Anti-corruption bureaus in states
• They should be demonstratively
• Lokpal (Ombudsman) at the Centre
independent and impartial.
• Lokayukta (Ombudsman) in states
• Their investigations and proceedings should
• Divisional Vigilance Board
be conducted in private and should be
• District Vigilance Officer informal in character.
• National Consumer Disputes Redressal • Their appointment should be, as far as
Commission possible, non-political.
• National Commission for SCs • Their status should compare with the
• National Commission for STs highest judicial functionaries in the country.
• Supreme Court and High Courts in states • They should deal with matters in the
• Administrative Tribunals (quasi-judicial discretionary field involving acts of injustice,
bodies) corruption or favouritism.
• Directorate of Public Grievances in the • Their proceedings should not be subject to
Cabinet Secretariat, 1988 judicial interference.
• Parliament and its committees • They should have the maximum latitude and
• ‘File to Field’ programme in some states like powers in obtaining information relevant to
Kerala. In this innovative scheme, the their duties.
administrator goes to the village/area and • They should not look forward to any benefit
hears public grievances and takes or pecuniary advantage from the executive
immediate action wherever possible. government.

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The Government of India accepted the Groups A, B, C and D officers and officials of
recommendations of ARC in this regard. So far, the Central Government.
ten official attempts have been made to bring • The Lokpal to consist of a Chairperson with
about legislation on this subject. Bills were a maximum of 8 members of which 50%
introduced in the Parliament in the following shall be judicial members.
years: • 50% of the members of the Lokpal shall
come from amongst the SCs, the STs, the
• In May 1968, by the Congress Government
OBCs, minorities and women.
headed by Indira Gandhi.
• The selection of the Chairperson and the
• In April 1971, again by the Congress
members of Lokpal shall be through a
Government headed by Indira Gandhi.
Selection Committee consisting of the Prime
• In July 1977, by the Janata Government
Minister, the Speaker of the Lok Sabha, the
headed by Morarji Desai.
Leader of the Opposition in the Lok Sabha,
• In August 1985, by the Congress
the Chief Justice of India or a sitting Supreme
Government headed by Rajiv Gandhi.
Court Judge nominated by the Chief Justice
• In December 1989, by the National Front of India and an eminent jurist to be
Government headed by V.P. Singh. nominated by the President of India on the
• In September 1996, by the United Front basis of recommendations of the first four
Government headed by Deve Gowda. members of the selection committee.
• In August 1998, by the BJP-led coalition • A Search Committee will assist the Selection
Government headed by A.B. Vajpayee. Committee in the process of selection. 50%
• In August 2001, by the NDA government of the members of the Search Committee
headed by A.B. Vajpayee. shall also be from amongst the SCs, the STs,
• In August 2011, by the UPA government the OBCs, minorities and women.
headed by Manmohan Singh. • The Prime Minister has been brought under
• In December 2011, by the UPA government the purview of the Lokpal with subject
headed by Manmohan Singh. matter exclusions and specific process for
The first four bills lapsed due to the dissolution handling complaints against the Prime
of Lok Sabha, while the fifth one was withdrawn Minister.
by the government. The sixth and seventh bills • Lokpal’s jurisdiction will cover all categories
also lapsed due to the dissolution of the 11th and of public servants, including Group A, Group
12th Lok Sabha. Again, the eighth bill (2001) B, Group C, and Group D officers and
lapsed due to the dissolution of the 13th Lok employees of Government. On complaints
Sabha in 2004. The ninth bill (2011) was referred to the CVC by the Lokpal, the CVC
withdrawn by the government. will send its report of preliminary enquiry in
respect of Group A and Group B Officers back
Lokpal and Lokayuktas Act (2013) to the Lokpal for further decision. With
Features respect to categories of employees from
The salient features of the Lokpal and Group C and Group D, the CVC will proceed
Lokayuktas Act (2013) are as follows: further in exercise of its own powers under
the CVC Act subject to reporting and review
• It seeks to establish the institution of the by the Lokpal.
Lokpal at the Centre and the Lokayukta at • The Lokpal will have the power of
the level of the State and thus seeks to superintendence and direction over any
provide a uniform vigilance and anti- investigating agency, including the CBI, for
corruption road map for the nation both at cases referred to them by the Lokpal.
the Centre and at the States. The jurisdiction • A High-Powered Committee chaired by the
of Lokpal includes the Prime Minister, Prime Minister will recommend the
Ministers, Members of Parliament and selection of the Director of CBI.

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• It incorporates provisions for attachment excess of ₹10 lakhs per year are brought
and confiscation of property of public under the jurisdiction of Lokpal.
servants acquired by corrupt means, even • It contains a mandate for setting up of the
while the prosecution is pending. institution of Lokayukta through enactment
• It lays down clear timelines. For preliminary of a law by the State Legislature within a
enquiry, it is three months extendable by period of 365 days from the date of
three months. For investigation, it is six commencement of this Act. Thus, the Act
months which may be extended by six provides freedom to the states to decide
months at a time. For trial, it is one year upon the contours of the Lokayukta
extendable by one year and to achieve this, mechanism in their respective states.
special courts to be set up.
Drawbacks
• It enhances maximum punishment under
the Prevention of Corruption Act from seven The following are the drawbacks
years to ten years. The minimum (shortcomings) of the Lokpal and Lokayuktas
punishment under sections 7, 8, 9 and 12 of Act, 2013:
the Prevention of Corruption Act will now be
• Lokpal cannot suo moto proceed against any
three years, and the minimum punishment
public servant.
under section 15 (punishment for attempt)
• Emphasis on form of complaint rather than
will now be two years.
substance.
• Institutions which are financed fully or
• Heavy punishment for false and frivolous
partly by Government are under the
complaints against public servants may
jurisdiction of Lokpal, but institutions aided
deter complaints being filed to Lokpal.
by Government are excluded.
• Anonymous complaints not allowed - can’t
• It provides adequate protection for honest
just make a complaint on plain paper and
and upright public servants.
drop it in a box with supporting documents.
• Lokpal conferred with power to grant
• Legal assistance to public servant against
sanction for prosecution of public servants
whom complaint is filed.
in place of the Government or competent
authority. • Limitation period of 7 years to file
complaints.
• It contains a number of provisions aimed at
strengthening the CBI such as: • Very non-transparent procedure for dealing
o setting up of a Directorate of Prosecution with complaints against the PM.
headed by a Director Prosecution under Lokayuktas
the overall control of the Director of CBI; Even much before the enactment of the Lokpal
o appointment of the Director of and Lokayuktas Act (2013) itself, many states
Prosecution on the recommendation of had already set up the institution of Lokayuktas.
the CVC;
o maintenance of a panel of advocates by It must be noted here that the institution of
CBI other than Government advocates lokayukta was established first in Maharashtra
with the consent of the Lokpal handling in 1971. Although Odisha had passed the Act in
Lokpal-referred cases; this regard in 1970, it came into force only in
o transfer of officers of CBI investigating 1983.
cases referred by Lokpal with the Till 2013, 21 states and 1 Union Territory
approval of Lokpal; (Delhi) have established the institution of
o provision of adequate funds to CBI for Lokyuktas. The details in this regard are
investigating cases referred by Lokpal. mentioned in table below.
• All entities receiving donations from foreign
source in the context of the Foreign
Contribution Regulation Act (FCRA) in

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Himachal Pradesh, Andhra Pradesh, Gujarat,

Orissa, Karnataka and Assam. But no specific
qualifications are prescribed in the states of
Bihar, Maharashtra and Rajasthan.
Tenure
In most of the states, the term of office fixed for
lokayukta is of 5 years duration or 65 years of
age, whichever is earlier. He is not eligible for re-
appointment for a second term.
Jurisdiction
There is no uniformity regarding the
jurisdiction of lokayukta in all the states. The
following points can be noted in this regard:
• The chief minister is included within the
jurisdiction of lokayukta in the states of
Himachal Pradesh, Andhra Pradesh, Madhya
Pradesh and Gujarat, while he is excluded
from the purview of lokayukta in the states
of Maharashtra, Uttar Pradesh, Rajasthan,
Bihar and Orissa.
Source: Laxmikanth • Ministers and higher civil servants are
The various aspects of the institution of included in the purview of lokayukta in
lokayukta are: almost all the states. Maharashtra has also
included former ministers and civil servants.
Structural Variations • Members of state legislatures are included in
The structure of the lokayukta is not same in all the purview of lokayukta in the States of
the states. Some States like Rajasthan, Andhra Pradesh, Himachal Pradesh, Gujarat,
Karnataka, Andhra Pradesh and Maharashtra Uttar Pradesh and Assam.
have created the lokayukta as well as • The authorities of the local bodies,
upalokayukta, while some others like Bihar, corporations, companies and societies are
Uttar Pradesh and Himachal Pradesh have included in the jurisdiction of the lokayukta
created only the lokayukta. There are still other in most of the states.
states like Punjab and Orissa that have Investigations
designated officials as Lokpal. This pattern was
not suggested by the ARC in the states. In most of the states, the lokayukta can initiate
investigations either on the basis of a complaint
Appointment received from the citizen against unfair
The lokayukta and upalokayukta are appointed administrative action or suo moto.
by the governor of the state. While appointing, But he does not enjoy the power to start
the governor in most of the states consults investigations on his own initiative (suo moto)
• the chief justice of the state high court, and in the States of Uttar Pradesh, Himachal Pradesh
• the leader of Opposition in the state and Assam.
legislative assembly. Scope of Cases Covered
Qualifications The lokayukta can consider the cases of
Judicial qualifications are prescribed for the ‘grievances’ as well as ‘allegations’ in the States
lokayukta in the States of Uttar Pradesh,
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of Maharashtra, Uttar Pradesh, Assam, Bihar The NIA is headed by a Director-General. He is

and Karnataka. appointed by the central government. His
powers are similar to the powers exercisable by
But, in Himachal Pradesh, Andhra Pradesh,
a Director-General of Police in respect of the
Rajasthan and Gujarat, the job of lokayuktas is
police force in a state.
confined to investigating allegations
(corruption) and not grievances The NIA works under the administrative control
(maladministration). of the Ministry of Home Affairs, Government of
India.
Other Features
The state government extends all assistance and
• The lokayukta presents, annually, to the
co-operation to the NIA for investigation of the
governor of the state a consolidated report
offences specified under the NIA Act.
on his performance. The governor places
this report along with an explanatory Rationale of the NIA
memorandum before the state legislature. While introducing the NIA Bill in the Parliament,
The lokayukta is responsible to the state the Government of India gave the following
legislature. reasons for creating the NIA:
• He takes the help of the state investigating
• Over the past several years, India has been
agencies for conducting inquiries.
the victim of large-scale terrorism
• He can call for relevant files and documents
sponsored from across the borders. There
from the state government departments.
have been innumerable incidents of terrorist
• The recommendations made by the attacks, not only in the militancy and
lokayukta are only advisory and not binding insurgency affected areas and areas affected
on the state government.
by left-wing extremism, but also in the form
National Investigation Agency of terrorist attacks and bomb blasts, etc., in
various parts of the hinterland and major
Establishment of the NIA
cities, etc.
The National Investigation Agency (NIA) was
constituted in 2009 under the provisions of the • A large number of such incidents are found
National Investigation Agency Act, 2008 (NIA to have complex inter-state and
Act). international linkages, and possible
connection with other activities like the
It is the central counter-terrorism law smuggling of arms and drugs, pushing in and
enforcement agency in the country. circulation of fake Indian currency,
infiltration from across the borders, etc.
The NIA was established in the backdrop of the
• Keeping all these in view, it was felt that
2008 Mumbai terror attacks, popularly known
as the 26/11 incident. there was a need for setting up of an agency
at the central level for the investigation of
This national horror led to the realisation of the offences related to terrorism and certain
need for a separate federal agency to deal with other Acts, which have national
terror-related crimes in the country. ramifications.
• Several expert committees and the Second
The headquarters of the NIA is at New Delhi. The
Administrative Reforms Commission have
branch offices of the NIA are located at
also made recommendations for
Hyderabad, Guwahati, Mumbai, Lucknow,
establishing such an agency.
Kochi, Kolkata, Jammu and Raipur.
• The Government, after due consideration
In addition, the NIA has a separate specialised and examination of the issues involved,
cell known as TFFC Cell dealing with the proposed to enact a legislation to make
subjects of fake currency notes and terror provisions for establishment of an NIA in a
funding. concurrent jurisdiction framework, with
provisions for taking up specific cases under
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specific Acts for investigation. These NIA (Amendment) Act, 2019

provisions are proposed to be incorporated The various features or provisions of the
in the National Investigation Agency Bill, amendment are as follows:
2008.
• It applied the provisions of the NIA Act also
Functions of the NIA to persons who commit a scheduled offence
The NIA is mandated to investigate and beyond India against Indian citizens or
prosecute offences under the various Acts affecting the interest of India.
mentioned in the Schedule of the NIA Act. • It provided that the officers of the NIA shall
have the similar powers, duties, privies and
In pursuance of its mandate, the NIA collects,
liabilities being exercised by the police
collates and analyses counter-terrorism
officers in connection with the investigation
investigation. It also shares inputs with its sister
of offences, not only in India but also outside
intelligence agencies and law enforcement units
India.
both at central and state governments level.
• It empowered the central government, with
In more detail, the functions assigned to the NIA respect to a scheduled offence committed
are as follows: outside India, to direct the NIA to register
the case and take up investigation as if such
• To investigate and prosecute offences in
offence has taken place in India.
respect of the Acts specified in the Schedule
• It provided that the central government and
of the NIA Act.
the state governments may designate
• To provide assistance to, and seek assistance
Sessions Courts as Special Courts for
from, other intelligence and investigation
conducting the trial of offences under the
agencies of the central government and state
NIA Act.
governments.
• It inserted certain new offences in the
• To take other such measures which may be
Schedule of the NIA Act.
necessary for speedy and effective
implementation of the provisions of the NIA National Disaster Management
Act. Authority
Jurisdiction of the NIA Establishment of the NDMA
The NIA has concurrent jurisdiction to The Government of India, recognising the
investigate and prosecute the offences affecting importance of disaster management as a
the sovereignty, security and integrity of India, national priority, had set up a High-Powered
security of state, friendly relations with foreign Committee in 1999 and a National Committee in
states and offences under various Acts enacted 2001 after the Gujarat earthquake, to make
to implement international treaties, recommendations on the preparation of
agreements, conventions and resolutions of the disaster management plans and suggest
UNO, its agencies and other international effective mitigation mechanisms.
organisations.
However, after the Indian Ocean tsunami of
The NIA is empowered to probe terror attacks 2004, the Government of India took a defining
including bomb blasts, hijacking of aircrafts and step in the legislative history of the country by
ships, attacks on nuclear installations and use of enacting the Disaster Management Act, 2005.
weapons of mass destruction.
The Act provided for the creation of the National
In 2019, the jurisdiction of the NIA was Disaster Management Authority (NDMA) to
extended. Consequently, the NIA is also spearhead and implement a holistic and
empowered to probe the offences relating to integrated approach to disaster management in
human trafficking, counterfeit currency or bank the country.
notes, manufacture or sale of prohibited arms,
Initially, the NDMA was constituted in 2005 by
cyber-terrorism and explosive substances.
an Executive Order of the Government of India.
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Subsequently, the NDMA was notified in 2006 Functions of the NDMA

under the provisions of the Act. The NDMA has the responsibility for laying
down the policies, plans and guidelines for
The NDMA consists of a chairperson and other
disaster management for ensuring timely and
members, not exceeding nine.
effective response to disaster.
The Prime Minister is the ex-officio chairperson
The functions of the NDMA are as follows:
of the NDMA. The other members are
nominated by the chairperson of the NDMA. • To lay down policies on disaster
management.
The chairperson of the NDMA designates one of
• To approve the National Plan.
the members as the vice-chairperson of the
• To approve plans prepared by the Ministries
NDMA. The vice-chairperson has the status of a
or Departments of the Government of India
Cabinet Minister while the other members have
the status of a Minister of State. in accordance with the National Plan.
• To lay down guidelines to be followed by the
The NDMA is the apex body for disaster State Disaster Management Authorities
management in the country. It works under the (SDMAs) in drawing up the State Plan.
administrative control of the Union Ministry of • To lay down guidelines to be followed by the
Home Affairs. different Ministries or Departments of the
Objectives of the NDMA Government of India for the purpose of
The objectives of the NDMA are as follows: integrating the measures for prevention of
disaster or the mitigation of its effects in
• To promote a culture of prevention, their development plans and projects.
preparedness and resilience at all levels • To coordinate the enforcement and
through knowledge, innovation and implementation of the policy and plan for
education. disaster management.
• To encourage mitigation measures based on • To recommend provision of funds for the
technology, traditional wisdom and purpose of mitigation.
environmental sustainability. • To provide such support to other countries
• To mainstream disaster management into affected by major disasters as may be
the developmental planning process. determined by the central government.
• To establish institutional and techno-legal • To take other such measures for the
frameworks to create an enabling regulatory prevention of disaster, or the mitigation, or
environment and a compliance regime. preparedness and capacity building for
• To ensure efficient mechanism for dealing with the threatening disaster
identification, assessment and monitoring of situation or disaster as it may consider
disaster risks. necessary.
• To develop contemporary forecasting and • To lay down broad policies and guidelines
early warning systems backed by responsive for the functioning of the National Institute
and failsafe communication with of Disaster Management.
information technology support.
Additional Functions of the NDMA
• To ensure efficient response and relief with
In addition to the above, the NDMA also
a caring approach towards the needs of the
performs the following functions:
vulnerable sections of the society.
• To undertake reconstruction as an • It recommends guidelines for the minimum
opportunity to build disaster resilient standards of relief to be provided to persons
structures and habitat for ensuring safer affected by disaster.
living. • It recommends, in cases of disasters of
• To promote a productive and proactive severe magnitude, relief in repayment of
partnership with the media for disaster loans or grant of fresh loans on concessional
management.
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terms to the persons affected by such • To approve the State Plan in accordance
disasters. with the guidelines laid down by the NDMA.
• It exercises the general superintendence, • To approve the disaster management plans
direction and control of the National prepared by the departments of the
Disaster Response Force (NDRF). This force government of the state.
has been constituted for the purpose of • To lay down guidelines to be followed by the
specialist response to a threatening disaster departments of the government of the state
situation or disaster. for the purposes of integration of measures
• It authorises the concerned department or for prevention of disasters and mitigation in
authority to make the emergency their development plans and projects and
procurement of provisions or materials for provide necessary technical assistance
rescue or relief in any threatening disaster thereof.
situation or disaster. In such case, the • To coordinate the implementation of the
standard procedure requiring inviting of State Plan.
tenders is deemed to be waived. • To recommend provision of funds for
• It prepares an annual report on its activities mitigation and preparedness measures.
and submits it to the central government. • To review the development plans of the
The central government causes it to be laid different departments of the state and
before both Houses of Parliament. ensure that prevention and mitigation
measures are integrated therein.
State Disaster Management Authority
• To review the measures being taken for
Composition mitigation, capacity building and
Every state government should establish a State preparedness by the departments of the
Disaster Management Authority (SDMA) for the government of the state and issue such
state. guidelines as may be necessary.
An SDMA consists of a chairperson and other
District Disaster Management
members, not exceeding nine.
Authority
The Chief Minister of the state is the ex-officio Composition
chairperson of the SDMA. Every state government should establish a
The chairperson of the State Executive District Disaster Management Authority
Committee is the ex-officio member of the (DDMA) for every district in the state.
SDMA. A DDMA consists of a chairperson and other
The other members, not exceeding eight, are members, not exceeding seven.
nominated by the chairperson of the SDMA. The Collector (or District Magistrate or Deputy
The chairperson of the SDMA designates one of Commissioner) of the district is the ex-officio
the members as the vice-chairperson of the chairperson of the DDMA.
SDMA. The elected representative of the local authority
The chairperson of the State Executive is the ex-officio co-chairperson of the DDMA.
Committee acts as the ex-officio chief executive But, in case of Tribal Areas (as referred to in the
officer of the SDMA. Sixth Schedule to the Constitution of India), the
Functions chief executive member of the district council of
An SDMA has the responsibility for laying down autonomous district is the ex-officio co-
policies and plans for disaster management in chairperson of the DDMA.
the state. Its functions include the following: The chief executive officer of the DDMA, the
• To lay down the state disaster management superintendent of police and the chief medical
policy.
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officer of the district are the ex-officio members preparedness and response measures as laid
of the DDMA. down by the NDMA and the SDMA are
followed by all departments of the
Not more than two other district level officers
government at the district level and the local
are appointed by the state government as the
authorities in the district.
members of the DDMA.
• To organise and coordinate specialised
In case of a district where Zilla Parishad exists, training programmes for different levels of
the chairperson of that Zilla Parishad is the co- officers, employees and voluntary rescue
chairperson of the DDMA. The chief executive workers in the district.
officer of the DDMA is appointed by the state • To facilitate community training and
government. awareness programmes for prevention of
disaster or mitigation with the support of
Functions
local authorities, governmental and non-
The DDMA acts as the district planning,
governmental organisations.
coordinating and implementing body for
• To set up, maintain, review and upgrade the
disaster management and takes all measures for
mechanism for early warnings and
the purposes of disaster management in the
dissemination of proper information to the
district in accordance with the guidelines laid
public.
down by the NDMA and the SDMA.
• To advise, assist and coordinate the
Its functions are as follows: activities of the departments of the
government at the district level, statutory
• To prepare a disaster management plan
bodies and other governmental and non-
including district response plan for the
governmental organisations in the district
district.
engaged in disaster management.
• To coordinate and monitor the
• To identify buildings and places which could,
implementation of the National Policy, State
in the event of any threatening disaster
Policy, National Plan, State Plan and District
situation or disaster, be used as relief
Plan.
centres or camps and make arrangements
• To ensure that the areas in the district
for water supply and sanitation in such
vulnerable to disasters are identified and
buildings or places.
measures for the prevention of disasters and
• To perform such other functions as the state
the mitigation of its effects are undertaken
government or SDMA may assign to it or as
by the departments of the government at the
it deems necessary for disaster management
district level as well as by the local
in the district.
authorities.
• To ensure that the guidelines for prevention
of disasters, mitigation of its effects,
********

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Chapter 44 – Other Constitutional Dimensions

Co-Operative Societies specialisation in any other related field, as

The 97th Constitutional Amendment Act of 2011 members of the board. But, the number of such
gave a constitutional status and protection to co-opted members shall not exceed two (in
co-operative societies. addition to twenty-one directors).

In this context, it made the following three Further, the co-opted members shall not have
changes in the constitution: the right to vote in any election of the co-
operative society or be eligible to be elected as
• It made the right to form co-operative office bearers of the board.
societies a fundamental right (Article 19).
• It included a new Directive Principle of State The functional directors of a co-operative
Policy on promotion of co-operative society shall also be the members of the board
societies (Article 43-B). and such members shall be excluded for the
• It added a new Part IX-B in the Constitution purpose of counting the total number of
which is entitled “The Co-operative directors (that is, twenty-one).
Societies” (Articles 243-ZH to 243-ZT). Election of Members of Board: The election of
Constitutional Provisions a board shall be conducted before the expiry of
Part IX-B of the constitution contains the the term of the board so as to ensure that the
following provisions with respect to the newly elected members assume office
cooperative societies: immediately on the expiry of the term of the
office of members of the outgoing board.
Incorporation of Co-operative Societies: The
state legislature may make provisions for the The superintendence, direction and control of
incorporation, regulation and winding-up of co- the preparation of electoral rolls and the
operative societies based on the principles of conduct of elections to a co-operative society
voluntary formation, democratic member shall vest in such body, as may be provided by
control, member-economic participation and the state legislature.
autonomous functioning. Supersession and Suspension of Board and
Number and Term of Members of Board and Interim Management: No board shall be
its Office Bearers: The board shall consist of superseded or kept under suspension for a
such number of directors as may be provided by period exceeding six months.
the state legislature. But, the maximum number The board may be superseded or kept under
of directors of a co-operative society shall not suspension in case
exceed twenty-one.
• of its persistent default
The state legislature shall provide for the • of negligence in the performance of its duties
reservation of one seat for the Scheduled Castes • of committing any act prejudicial to the
or the Scheduled Tribes and two seats for interests of the cooperative society or its
women on the board of every co-operative members
society having members from such a category of
• of there being a stalemate in the constitution
persons.
or functions of the board
The term of office of elected members of the • of the election body having failed to conduct
board and its office bearers shall be five years elections in accordance with the provisions
from the date of election. of the State Act.

The state legislature shall make provisions for However, the board of any such co-operative
co-option of persons having experience in the society shall not be superseded or kept under
field of banking, management, finance or suspension where there is no Government
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shareholding or loan or financial assistance or Returns: Every co-operative society shall file
any guarantee by the Government. returns, within six months of the close of every
financial year, to the authority designated by the
In case of supersession of a board, the
State Government. These returns shall include
administrator appointed to manage the affairs
the following matters:
of such a co-operative society shall arrange for
conduct of elections within the period of six • Annual report of its activities
months and handover the management to the • Its audited statement of accounts
elected board. • Plan for surplus disposal as approved by the
general body of the co-operative society
Audit of Accounts of Co-operative Societies:
The state legislature may make provisions for • List of amendments to the by-laws of the co-
the maintenance of accounts by the co-operative operative society
societies and the auditing of such accounts at • Declaration regarding date of holding of its
least once in each financial year. general body meeting and conduct of
elections when due
It shall lay down the minimum qualifications • Any other information required by the
and experience of auditors and auditing firms Registrar in pursuance of any of the
that shall be eligible for auditing the accounts of provisions of the State Act.
the co-operative societies.
Offences and Penalties: The state legislature
Every co-operative society shall be audited by may make provisions for the offences relating to
an auditor or auditing firm, appointed by the the co-operative societies and penalties for such
general body of the co-operative society. offences. Such a law shall include the
But, such an auditor or auditing firm shall be commission or omission of the following acts as
appointed from a panel approved by the State offences:
Government or a body authorised by the State • A co-operative society wilfully makes a false
Government on this behalf. return or furnishes false information
The accounts of every co-operative society shall • Any person wilfully disobeys any summon,
be audited within six months of the close of the requisition or order issued under the State
financial year. Act
• Any employer who, without sufficient cause,
The audit report of the accounts of an apex co- fails to pay to a co-operative society the
operative society shall be laid before the state amount deducted from its employee within
legislature. a period of fourteen days
Convening of General Body Meetings: The • Any officer who wilfully fails to handover
state legislature may provide that the annual custody of books, accounts, documents,
general body meeting of every cooperative records, cash, security and other property
society shall be convened within a period of six belonging to a co-operative society to an
months of the close of the financial year. authorised person
• Any person who adopts corrupt practices
Right of a Member to Get Information: The before, during or after the election of
state legislature may provide for access to every members of the board or office bearers.
member of a co-operative society to the books,
information and accounts of the co-operative Application to Multi-state Co-operative
society. It may also make provisions to ensure Societies: The provisions of this part shall apply
the participation of members in the to the multi-state co-operative societies subject
management of the co-operative society. to the modification that any reference to the
“State Legislature”, “State Act” or “State
Further, it may provide for co-operative Government” shall be construed as a reference
education and training for its members. to “Parliament”, “Central Act” or “Central
Government” respectively.
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Application to Union Territories: The • The “co-operative societies” is a subject

provisions of this part shall apply to the Union enumerated in Entry 32 of the state list of
territories. But, the President may direct that the Seventh Schedule of the Constitution and
the provisions of this part shall not apply to any the state legislatures have accordingly
Union territory or part thereof as he may specify enacted legislations on co-operative
in the notification. societies.
• Within the framework of State Acts, growth
Continuance of Existing Laws: Any provision
of co-operatives on large scale was
of any law relating to co-operative societies in
envisaged as part of the efforts for securing
force in a state immediately before the
social and economic justice and equitable
commencement of the Constitution (Ninety-
distribution of the fruits of development. It
seventh Amendment) Act, 2011, which is
has, however, been experienced that in spite
inconsistent with the provisions of this part,
of considerable expansion of co-operatives,
shall continue to be in force until amended or
their performance in qualitative terms has
repealed or until the expiration of one year from
not been up to the desired level.
such commencement, whichever is less.
• Considering the need for reforms in the
Reasons for the 97th
Amendment Cooperative Societies Acts of the States,
The reasons for adding the above provisions in consultations with the State Governments
the Constitution by the 97th Constitutional have been held at several occasions and in
Amendment Act of 2011 are as follows: the conferences of state co-operative
ministers. A strong need has been felt for
• The co-operative sector, over the years, has
amending the Constitution so as to keep the
made significant contribution to various
co-operatives free from unnecessary outside
sectors of national economy and has
interferences and also to ensure their
achieved voluminous growth. However, it
autonomous organisational set up and their
has shown weaknesses in safeguarding the
democratic functioning.
interests of the members and fulfilment of
• The Central Government was committed to
objects for which these institutions were
ensure that the co-operative societies in the
organised.
country function in a democratic,
• There have been instances where elections
professional, autonomous and economically
have been postponed indefinitely and
sound manner.
nominated office bearers or administrators
• With a view to bring the necessary reforms,
have remained in-charge of these
it was proposed to incorporate a new part in
institutions for a long time. This reduces the
the Constitution so as to provide for certain
accountability in the management of co-
provisions covering the vital aspects of
operative societies to their members.
working of co-operative societies like
• Inadequate professionalism in management
democratic, autonomous and professional
in many of the co-operative institutions has
functioning. It was expected that these
led to poor services and low productivity.
provisions will not only ensure the
Co-operatives need to run on well-
autonomous and democratic functioning of
established democratic principles and
co-operatives, but also ensure the
elections held on time and in a free and fair
accountability of management to the
manner. Therefore, there was a need to
members and other stakeholders and shall
initiate fundamental reforms to revitalise
provide for deterrence for violation of the
these institutions in order to ensure their
provisions of the law.
contribution in the economic development
of the country and to serve the interests of Official Language
members and public at large and also to
ensure their autonomy, democratic Part XVII of the Constitution deals with the
functioning and professional management. official language in Articles 343 to 351. Its
provisions are divided into four heads–
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Language of the Union, Regional languages, envisaged by the Constitution) was not
Language of the judiciary and texts of laws and appointed in 1960.
Special directives.
Subsequently, the Parliament enacted the
Language of the Union Official Languages Act in 1963. The act provides
for the continued use of English (even after
The Constitution contains the following 1965), in addition to Hindi, for all official
provisions in respect of the official language of purposes of the Union and also for the
the Union. transaction of business in Parliament.
• Hindi written in Devanagari script is to be Notably, this act enables the use of English
the official language of the Union. But, the indefinitely (without any time-limit). Further,
form of numerals to be used for the official this act was amended in 1967 to make the use of
purposes of the Union has to be the English, in addition to Hindi, compulsory in
international form of Indian numerals and certain cases.
not the Devanagari form of numerals.
• However, for a period of fifteen years from These include:
the commencement of the Constitution (i.e.,
from 1950 to 1965), the English language • resolutions, general orders, rules,
would continue to be used for all the official notifications, administrative or other
purposes of the Union for which it was being reports or press communications issued by
used before 1950. the Central government;
• Even after fifteen years, the Parliament may • administrative and other reports and official
provide for the continued use of English papers laid before Parliament; and
language for the specified purposes. • contracts and agreements executed,
• At the end of five years, and again at the end licences, permits, notices, etc, issued by the
of ten years, from the commencement of the Central government or by a corporation or a
Constitution, the president should appoint a company owned by the Central government.
commission to make recommendations with
regard to the progressive use of the Hindi Regional Languages
language, restrictions on the use of the
The Constitution does not specify the official
English language and other related issues.
language of different states. In this regard, it
• The Commission was to consist of a chairman
makes the following provisions:
and other members representing the different
languages specified in the Eighth Schedule of • The legislature of a state may adopt any one
the Constitution. or more of the languages in use in the state
• A committee of Parliament is to be or Hindi as the official language of that state.
constituted to examine the Until that is done, English is to continue as
recommendations of the commission and to official language of that state.
report its views on them to the president. Under this provision, most of the states have
• The Committee was to consist of 30 members adopted the major regional language as their
(20 from Lok Sabha and 10 from Rajya official language.
Sabha), to be elected in accordance with the For example,
system of proportional representation by o Andhra Pradesh has adopted Telugu,
means of the single transferable vote. Kerala–Malayalam, Assam–Assamese,
West Bengal–Bengali, Odisha–Odia.
Accordingly, in 1955, the president appointed o The nine northern states of Himachal
an Official Language Commission under the Pradesh, Uttar Pradesh, Uttarakhand,
chairmanship of B.G. Kher. The commission Madhya Pradesh, Chhattisgarh, Bihar,
submitted its report to the President in 1956. Jharkhand, Haryana and Rajasthan have
adopted Hindi.
The report was examined by a committee of
o Gujarat has adopted Hindi in addition to
Parliament constituted in 1957 under the
Gujarati.
chairmanship of Gobind Ballabh Pant. However,
another Official Language Commission (as
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o Similarly, Goa has adopted Marathi in o All proceedings in the Supreme Court
addition to Konkani. and in every high court.
o Jammu and Kashmir has adopted Urdu o The authoritative texts of all bills, acts,
(and not Kashmiri). ordinances, orders, rules, regulations
o On the other hand, certain north-eastern and bye-laws at the Central and state
States like Meghalaya, Arunachal levels.
Pradesh and Nagaland have adopted
English. • However, the governor of a state, with the
Notably, the choice of the state is not previous consent of the president, can
limited to the languages enumerated in authorise the use of Hindi or any other
the Eighth Schedule of the Constitution. official language of the state, in the
proceedings in the high court of the state,
• For the time being, the official language of but not with respect to the judgements,
the Union (i.e., English) would remain the decrees and orders passed by it.
link language for communications between In other words, the judgements, decrees and
the Union and the states or between various orders of the high court must continue to be
states. in English only (until Parliament otherwise
But, two or more states are free to agree to provides).
use Hindi (instead of English) for
communication between themselves. • Similarly, a state legislature can prescribe
the use of any language (other than English)
Rajasthan, Uttar Pradesh, Madhya Pradesh with respect to bills, acts, ordinances,
and Bihar are some of the states that have orders, rules, regulations or bye-laws, but a
entered into such agreements. translation of the same in the English
language is to be published.
The Official Languages Act (1963) lays down
that English should be used for purposes of The Official Languages Act of 1963 lays down
communication between the Union and the non- that Hindi translation of acts, ordinances,
Hindi states (that is, the states that have not orders, regulations and bye-laws published
adopted Hindi as their official language). under the authority of the president are deemed
Further, where Hindi is used for communication to be authoritative texts.
between a Hindi and a non-Hindi state, such
communication in Hindi should be accompanied Further, every bill introduced in the Parliament
by an English translation. is to be accompanied by a Hindi translation.

• When the President (on a demand being Similarly, there is to be a Hindi translation of
made) is satisfied that a substantial state acts or ordinances in certain cases.
proportion of the population of a state desire
the use of any language spoken by them to The act also enables the governor of a state, with
be recognised by that state, then he may the previous consent of the president, to
direct that such language shall also be authorise the use of Hindi or any other official
officially recognised in that state. This language of the state for judgements, decrees
provision aims at protecting the linguistic and orders passed by the high court of the state
interests of minorities in the states. but they should be accompanied by an English
translation.
Language of the Judiciary and Texts of Laws
For example, Hindi is used in Uttar Pradesh,
The constitutional provisions dealing with the Madhya Pradesh, Bihar and Rajasthan for this
language of the courts and legislation are as purpose.
follows:
However, the Parliament has not made any
• Until Parliament provides otherwise, the provision for the use of Hindi in the Supreme
following are to be in the English language Court. Hence, the Supreme Court hears only
only: those who petition or appeal in English.

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In 1971, a petitioner insisted on arguing in Hindi Development of Hindi Language

a habeas corpus petition in the Supreme Court.
But, the Court cancelled his petition on the The Constitution imposes a duty upon the
ground that the language of the Court was Centre to promote the spread and development
English and allowing Hindi would be of the Hindi language so that it may become the
unconstitutional. lingua franca of the composite culture of India.

The Authorised Translations (Central Laws) Act Further, the Centre is directed to secure the
of 1973 lays down that a Translation in any enrichment of Hindi by assimilating the forms,
regional language specified in the Eight style and expressions used in hindustani and in
Schedule to the Constitution (other than Hindi) other languages specified in the Eighth Schedule
of any central act, ordinance, order, rule, and by drawing its vocabulary, primarily on
regulation and bye-law published under the sanskrit and secondarily on other languages.
authority of the President in the Official Gazette
is deemed to be the authoritative texts thereof At present (2019), the Eighth Schedule of the
in such language. Constitution specifies 22 languages (originally
14 languages). These are Assamese, Bengali,
Special Directives Bodo, Dogri (Dongri), Gujarati, Hindi, Kannada,
Kashmiri, Konkani, Mathili (Maithili),
The Constitution contains certain special Malayalam, Manipuri, Marathi, Nepali, Odia,
directives to protect the interests of linguistic Punjabi, Sanskrit, Santhali, Sindhi, Tamil, Telugu
minorities and to promote the development of and Urdu.
Hindi language. These are:
Sindhi was added by the 21st Amendment Act of
Protection of Linguistic Minorities 1967; Konkani, Manipuri and Nepali were added
by the 71st Amendment Act of 1992; and Bodo,
In this regard, the Constitution makes the Dongri, Maithili and Santhali were added by the
following provisions: 92nd Amendment Act of 2003.
• Every aggrieved person has the right to In terms of the Constitution provisions, there
submit a representation for the redress of are two objectives behind the specification of
any grievance to any officer or authority of the above regional languages in the Eighth
the Union or a state in any of the languages Schedule:
used in the Union or in the state, as the case
may be. This means that a representation • the members of these languages are to be
cannot be rejected on the ground that it is given representation in the Official
not in the official language. Language Commission; and
• Every state and a local authority in the state • the forms, style and expression of these
should provide adequate facilities for languages are to be used for the enrichment
instruction in the mother-tongue at the of the Hindi language.
primary stage of education to children
belonging to linguistic minority groups. The Committee of Parliament on Official
president can issue necessary directions for Language
this purpose.
• The president should appoint a special The Official Languages Act (1963) provided for
officer for linguistic minorities to investigate the setting up of a Committee of Parliament on
all matters relating to the constitutional Official Language to review the progress made
safeguards for linguistic minorities and to in the use of Hindi for the official purpose of the
report to him. The president should place all Union.
such reports before the Parliament and send
to the state government concerned. Under the Act, this Committee was to be
constituted after ten years of the promulgation
of the Act (i.e., 26th January, 1965).

Accordingly, this Committee was set up in 1976.

This Committee comprises of 30 members of
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Parliament, 20 from Lok Sabha and 10 from objectives of the Constitution and Official
Rajya Sabha. Languages Act provisions could be achieved.

The Act contains the following provisions With this end in view, the Committee set up
relating to the composition and functions of the three sub-Committees and for the purpose of
committee: inspection by the three sub-Committees, the
various Ministries/Departments etc. were
• After the expiration of ten years from the divided into three different groups.
date on which the Act comes into force, there
shall be constituted a Committee on Official Further, in order to assess the use of Official
Language, on a resolution to that effect being Language for various purposes and other
moved in either House of Parliament with matters connected therewith, it was also
the previous sanction of the President and decided to invite eminent persons from various
passed by both Houses. fields such as from education, judiciary,
• The Committee shall consist of thirty voluntary organizations and the Secretaries of
members, of whom twenty shall be members the Ministries/Departments etc., for oral
of the House of the People and ten shall be evidence.
members of the Council of States to be
elected respectively by the members of the The progressive use of Hindi in the Central
House of the People and the members of the Government offices is being reviewed by the
Council of States in accordance with the Committee in the background of the provisions
system of proportional representation by relating to Official Language as provided by the
means of the single transferable vote. Constitution; the Official Languages Act, 1963
• It shall be the duty of the Committee to and the Rules framed thereunder.
review the progress made in the use of Hindi
The Committee also takes note of the circulars/
for the official purposes of the Union and
instructions etc. issued by the Government in
submit a report to the President making
this regard from time to time.
recommendations thereon and the
President shall cause the report to be laid The terms of reference of the Committee being
before each House of Parliament and sent it comprehensive, it has also been examining
to all the State Governments. other relevant aspects like the medium of
• The President may, after consideration of instructions in schools, colleges and the
the report, and the views, expressed by the universities; mode of recruitment to Central
State Governments thereon, issue directions Government services and medium of
in accordance with the whole or any part of departmental examination etc.
the report.
Taking into consideration the magnitude of
The Chairman of the Committee is elected by the various aspects of the Official Language policy
members of the Committee. As a convention, the and keeping in view the present circumstances,
Union Home Minister has been elected as the Committee in its meeting held in June, 1985
Chairman of the Committee from time to time. and August, 1986 decided to present its report
to the President in parts; each part relating to a
The Committee is required to submit its report
particular aspect of the Official Language policy.
along with its recommendations to the
President after reviewing the position regarding The Secretariat of the Committee is headed by
the use of Hindi in Central Government Offices the Secretary of the Committee.
on the basis of its observations.
The Secretary is assisted by the officers of the
Apart from adopting other methods for level of Under Secretary and other officials.
assessing the factual position, the Committee
decided to inspect certain Central Government They extend all required assistance in
offices representing various fields of activities performing the various activities of the
to motivate the Central Government offices to Committee.
adopt maximum usage of Hindi so that the

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For administrative purposes, this office is that is original and not borrowed from another
subordinate office of Department of Official speech community.
Language, Ministry of Home Affairs.
Also, since the classical language and literature
Classical Language Status is distinct from the modern, there can also be a
discontinuity between the classical language
In 2004, the Government of India decided to and its later forms or its offshoots.
create new category of languages called as
“classical languages”. In 2006, it laid down the Public Services
criteria for conferring the classical language
status. Classification Of Services

So far (2019), the six languages are granted the The public services (civil services or
classical language status. This is shown below in government services) in India are classified into
Table below: three categories–All-India services, Central
services and state services. Their meaning and
Languages conferred with Classical composition are explained below:
Language Status
All-India Services

Languages Year of Declaration All-India services are those services which are
common to both Central and state governments.
Tamil 2004 The members of these services occupy top
positions (or key posts) under both the Centre
Sanskrit 2005
and the states and serve them by turns.
Telugu 2008 At present, there are three all-India services.
They are:
Kannada 2008
1. Indian Administrative Service (IAS)
Malayalam 2013
2. Indian Police Service (IPS)
Odia 2014 3. Indian Forest Service (IFS)

In 1947, the Indian Civil Service (ICS) was

Benefits
replaced by IAS, and the Indian Police (IP) was
Once a language is declared classical, it gets replaced by IPS and were recognised by the
financial assistance for setting up a centre of Constitution as all-India services. In 1966, the
excellence for the study of that language and Indian Forest Service was established as the
also opens up an avenue for two major awards third all-India service.
for scholars of eminence.
In 1963, a provision was made for the creation of
Besides, the University Grants Commission can three more all-India services. They were Indian
be requested to create - to begin with at least in Forest Service, Indian Medical and Health Service
Central Universities - a certain number of and Indian Service of Engineers. However, out of
professional chairs for classical languages for these three, only the Indian Forest Service came
scholars of eminence in the language. into existence in 1966.

Criteria The All-India Services Act of 1951 authorised

the Central government to make rules in
The criteria for declaring a language as classical consultation with the state governments for the
mandates high antiquity of its early regulation of recruitment and service
texts/recorded history over a period of 1,500– conditions of the members of all-India services.
2,000 years, a body of ancient literature/texts
which is considered a valuable heritage by The members of these services are recruited
generations of speakers and a literary tradition and trained by the Central government but are
assigned to different states for work. They
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belong to different state cadres; the Centre IV was changed to group A, group B, group C and
having no cadre of its own in this regard. group D, respectively.

They serve the Central government on This was done on the recommendation of the
deputation and after completing their fixed Third Pay Commission (1970–1973).
tenure they go back to their respective states.
At present, there are 62 group A Central
The Central government obtains the services of services. Some of them are:
these officers on deputation under the well-
known tenure system. 1. Central Engineering Service
2. Central Health Service
It must be noted here that irrespective of their 3. Central Information Service
division among different states, each of these 4. Central Legal Service
all-India services form a single service with 5. Central Secretariat Service
common rights and status and uniform scales of 6. Indian Audit and Accounts Service
pay throughout the country. 7. Indian Defence Accounts Service
8. Indian Economic Service
Their salaries and pensions are met by the 9. Indian Foreign Service
states. 10. Indian Meteorological Service
11. Indian Postal Service
The all-India services are controlled jointly by 12. Indian Revenue Service (Customs, Excise
the Central and state governments. and Income Tax)
13. Indian Statistical Service
The ultimate control lies with the Central
14. Overseas Communication Service
government while the immediate control is
15. Railway Personnel Service
vested in the state governments.
Most of the above cadres of group A Central
Any disciplinary action (imposition of penalties)
services have also corresponding group B
against these officers can only be taken by the
services. The group C Central services consists
Central government.
of clerical personnel while group D consists of
Sardar Vallabhbhai Patel was the chief manual personnel. Thus group A and group B
protagonist of all-India services in the comprises of gazetted officers while group C and
Constituent Assembly. Hence, he came to be group D are non-gazetted.
regarded as the ‘Father of all-India Services’.
Among all, the Indian Foreign Service (IFS) is
Central Services the highest central service in terms of prestige,
status, pay and emoluments.
The personnel of Central services work under
the exclusive jurisdiction of the Central In fact, it (though a central service) competes
government. They hold specialized (functional with the all-India services in position, status and
and technical) positions in various departments pay scales. It comes next to the IAS in ranking
of the Central government. and its pay scale is higher than the IPS.
State Services
Before Independence, the Central services were
classified into class-I, class-II, subordinate and
The personnel of state services work under the
inferior services. After Independence, the
exclusive jurisdiction of the state government.
nomenclature of subordinate and inferior
They hold different positions (general,
services was replaced by class-III and class-IV
functional and technical) in the departments of
services.
the state government. However, they occupy
This was done on the recommendation of the First lower positions (in the administrative hierarchy
Pay Commission (1946–1947). of the state) than those held by the members of
the all-India services (IAS, IPS and IFS).
Again in 1974, the classification of Central
services into class-I, class-II, class-III and class-
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The number of services in a state differ from Also, the members of the gazetted class are
state to state. The services that are common to called ‘officers’ while those of non-gazetted are
all the states are: called ‘employees’.

1. Civil Service The All-India Services Act of 1951 specifies that

2. Police Service senior posts not exceeding thirty-three and one
3. Forest Service third per cent in the Indian Administrative
4. Agricultural Service Service (IAS), Indian Police Service (IPS) and
5. Medical Service Indian Forest Service (IFS) are required to be
6. Veterinary Service filled in by promotion of officers employed in
7. Fisheries Service the state services. Such promotions are made on
8. Judicial Service the recommendation of selection committee
9. Public Health Service constituted for this purpose in each state. Such
10. Educational Service a committee is presided over by the Chairman
11. Co-operative Service or a member of UPSC.
12. Registration Service
Constitutional Provisions
13. Sales Tax Service
14. Jail Service
Articles 308 to 314 in part XIV of the
15. Service of Engineers
Constitution contain provisions with regard to
Each of these services is named after the state, all-India services, Central services and state
that is, name of the state is added as a prefix. services.

For example, in Andhra Pradesh (AP), they are 1. Recruitment and Service Conditions
known as AP Civil Service, AP Police Service, AP
Article 309 empowers the Parliament and the
Forest Service, AP Agricultural Service, AP
state legislatures to regulate the recruitment
Medical Service, AP Veterinary Service, AP
and the conditions of service of the persons
Fisheries Service, AP Judicial Service, and so on.
appointed to public services and posts under the
Among all the state services, the civil service Centre and the states, respectively. Until such
(also known as the administrative service) is the laws are made, the president or the governor
most prestigious. can make rules to regulate these matters.

Like the Central services, the state services are Recruitment includes any method provided for
also classified into four categories: class I (group inducting a person in public service like
I or group A), class II (group II or group B), class appointment, selection, deputation, promotion
III (group III or group C) and class IV (group IV and appointment by transfer.
or group D).
The conditions of service of a public servant
Further, the state services are also classified includes pay, allowances, periodical increments,
into gazetted class and non-gazetted class. leave, promotion, tenure or termination of
Usually, Class I (Group-A) and Class-II (Group- service, transfer, deputation, various types of
B) Services are gazetted classes while Class-III rights, disciplinary action, holidays, hours of
(Group-C) and Class-IV (Group-D) services are work and retirement benefits like pension,
non-gazetted classes. provident fund, gratuity and so on.

The names of the members of gazetted class are Under this provision, the Parliament or the state
published in the Government Gazette for legislature can impose ‘reasonable’ restrictions
appointment, transfer, promotion and on the Fundamental Rights of public servants in
retirement, while those of the non-gazetted are the interests of integrity, honesty, efficiency,
not published. Further, the members of the discipline, impartiality, secrecy, neutrality,
gazetted class enjoy some privileges which are anonymity, devotion to duty and so on.
denied to the members of non-gazetted class.
Such restrictions are mentioned in the conduct
rules like Central Services (Conduct) Rules,
Railway Services (Conduct) Rules and so on.
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2. Tenure of Office a) Where a civil servant is dismissed or

removed or reduced in rank on the ground
According to Article 310, members of the of conduct which has led to his conviction on
defence services, the civil services of the Centre a criminal charge; or
and the all-India services or persons holding b) Where the authority empowered to dismiss
military posts or civil posts under the Centre, or remove a civil servant or to reduce him in
hold office during the pleasure of the president. rank is satisfied that for some reason (to be
recorded in writing), it is not reasonably
Similarly, members of the civil services of a state practicable to hold such inquiry; or
or persons holding civil posts under a state, hold c) Where the president or the governor is
office during the pleasure of the governor of the satisfied that in the interest of the security of
state. the state, it is not expedient to hold such
inquiry.
However, there is an exception to this general
rule of dismissal at pleasure. Originally, the opportunity of being heard was
given to a civil servant at two stages–at the
The president or the governor may (in order to
inquiry stage, and at the punishment stage.
secure the services of a person having special
qualifications) provide for the payment of But, the 42nd Amendment Act of 1976 abolished
compensation to him in two cases: the provision for second opportunity (that is,
the right of a civil servant to make
a) if the post is abolished before the expiration
representation against the punishment
of the contractual period, or
proposed as a result of the findings of the
b) if he is required to vacate that post for
inquiry).
reasons not connected with misconduct on
his part. Hence, the present position is that where it is
proposed (after inquiry) to impose upon a civil
3. Safeguards to Civil Servants
servant the punishment of dismissal, removal or
Article 311 places two restrictions on the above reduction in rank, it may be imposed on the
‘doctrine of pleasure’. In other words, it basis of the evidence adduced at the inquiry
provides two safeguards to civil servants without giving him any opportunity of making
against any arbitrary dismissal from their posts: representation on the penalty proposed.

a) A civil servant cannot be dismissed or The Supreme Court held that the expression
removed by an authority subordinate to that ‘reasonable opportunity of being heard’
by which he was appointed. envisaged to a civil servant (in the second
b) A civil servant cannot be dismissed or safeguard mentioned above) includes:
removed or reduced in rank except after an
a) an opportunity to deny his guilt and
inquiry in which he has been informed of the
establish his innocence which he can only do
charges against him and given a reasonable
if he is told what the charges levelled against
opportunity of being heard in respect of
him are and the allegations on which such
those charges.
charges are based;
The above two safeguards are available only to b) an opportunity to defend himself by cross-
the members of the civil services of the Centre, examining the witnesses produced against
the all-India services, the civil services of a state him and by examining himself or any other
or to persons holding civil posts under the witnesses in support of his defence; and
Centre or a state and not to the members of c) the disciplinary authority must supply a
defence services or persons holding military copy of the inquiry officer’s report to the
posts. delinquent civil servant for observations
and comments before the disciplinary
However, the second safeguard (holding authority considers the report.
inquiry) is not available in the following three
cases:

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4. All-India Services Article 314 which made provision for

protection of existing officers of certain services
Article 312 makes the following provisions in was repealed by the 28th Amendment Act of
respect of all-India services: 1972.

a) The Parliament can create new all-India Rights and Liabilities of the
services (including an all-India judicial Government
service), if the Rajya Sabha passes a
resolution declaring that it is necessary or Articles 294 to 300 in Part XII of the Constitution
expedient in the national interest to do so. deal with the property, contracts, rights,
Such a resolution in the Rajya Sabha should liabilities, obligations and suits of the Union and
be supported by two-thirds of the members
the states. In this regard, the Constitution makes
present and voting. This power of
the Union or the states as juristic (legal)
recommendation is given to the Rajya Sabha
to protect the interests of states in the Indian persons.
federal system. Property of the Union and the States

b) Parliament can regulate the recruitment and Succession

conditions of service of persons appointed to
all-India services. All property and assets that were vested in the
Accordingly, the Parliament has enacted the Dominion of India or a province or an Indian
All-India Services Act, 1951 for the purpose. princely state, before the commencement of the
present Constitution, became vested in the
c) The services known at the commencement
Union or the corresponding state.
of the Constitution (that is, January 26,
1950) as the Indian Administrative Service Similarly, all rights, liabilities and obligations of
and the Indian Police Service are deemed to
the government of the dominion of India or a
be services created by Parliament under this
province or an Indian state would now be the
provision.
rights, liabilities and obligations of the
d) The all-India judicial service should not Government of India or the corresponding state.
include any post inferior to that of a district
judge. A law providing for the creation of this Escheat, Lapse and Bona Vacantia
service is not to be deemed as an
Any property in India that would have accrued
amendment of the Constitution for the
purposes of Article 368. to King of England or ruler of Indian state
(princely) by escheat (death of a person inte-
Though the 42nd Amendment Act of 1976 made state without any heir), lapse (termination of
the provision for the creation of all-India judicial rights through disuse or failure to follow
service, no such law has been made so far. appropriate procedures) or bona vacantia
(property found without any owner) for want of
5. Other Provisions
a rightful owner, would now vest in the state if
Article 312 A (inserted by the 28th Amendment the property is situated there, and in the Union,
Act of 1972) confers powers on the Parliament in any other case. In all these three cases, the
to vary or revoke the conditions of service of property accrues to the government as there is
persons who were appointed to a civil service of no rightful owner (claimant).
the Crown in India before 1950.
Sea-Wealth
Article 313 deals with transitional provisions
and says that until otherwise provided, all the All lands, minerals and other things of value
laws in force before 1950 and applicable to any under the waters of the ocean within the
public service would continue. territorial waters of India, the continental shelf
of India and the exclusive economic zone of
India vests in the Union. Hence, a state near the
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ocean cannot claim jurisdiction over these government of a state may sue or be sued by the
things. name of that state, eg, State of Andhra Pradesh
or State of Uttar Pradesh and so on. Thus, the
India’s territorial waters extend to a distance of Union of India and states are legal entities
12 nautical miles from the appropriate base line. (juristic personalities) for purposes of suits and
Similarly, India’s exclusive economic zone proceedings, not the Government of the Union
extends upto 200 nautical miles. or government of states.

Under the Territorial Waters, Continental Shelf, Regarding the extent of the governmental
Exclusive Economic Zone and other Maritime liability, the Constitution (Article 300) declares
Zones Act, 1976, passed by the Parliament after that the Union of India or states can sue or be
the 40th Constitutional Amendment Act, 1976. sued in relation to their respective affairs in the
like cases as the dominion of India and the
Compulsory Acquisition by Law
corresponding provinces or Indian states might
The Parliament as well as the state legislatures have sued or been sued before the Constitution.
are empowered to make laws for the
This provision is subject to any law made by
compulsory acquisition and requisitioning of
Parliament or a state legislature. But, no such
private property by the governments. Further,
law has been enacted so far.
the 44th Amendment Act (1978) has also
abolished the constitutional obligation to pay Hence, at present, the position in this respect
compensation in this regard except in two cases: remains the same as it existed before the
Constitution. In the pre-Constitution period (i.e.,
• when the government acquires the property from the days of the East India Company up to
of a minority educational institution; and the commencement of the Constitution in
1950), the government was suable for contracts
This provision was added by the 44th Amendment
but not for torts (wrongs committed by its
Act (1978).
servants) in respect of its sovereign functions.
• when the government acquires the land held
This is explained in detail as follows:
by a person under his personal cultivation
and the land is within the statutory ceiling Liability for Contracts
limits.
Under the exercise of its executive power, the
This provision was added by the 17th Amendment Union or a state can enter into contracts for the
Act (1964). acquisition, holding and disposal of property, or
to carry on any trade or business, or for any
Acquisition under Executive Power
other purpose. But, the Constitution lays down
The Union or a state can acquire, hold and three conditions which must be fulfilled by such
dispose property under the exercise of its contracts:
executive power.
• They must be expressed to be made by the
Further, the executive power of the Union or a president or governor, as the case may be;
state extends to the carrying on any trade or • They must be executed on behalf of the
business within and in other states also. president or governor, as the case may be;
and
Suits By or Against The Government • They must be executed by such person or in
such manner as the president or governor
Article 300 of the Constitution deals with the
may direct or authorise.
suits by or against the Government in India. It
lays down that the Government of India may sue These conditions are mandatory and not merely
or be sued by the name of the Union of India and directory in nature.
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Failure to comply with them nullifies the and the immunity of the government in respect
contracts and renders them void and of its sovereign functions was established in the
unenforceable in the courts. famous P and O Steam Navigation Company case
(1861).
Further, the president or the governor is not
personally liable in respect of any contract This was reaffirmed by the Supreme Court in the
executed in his name. post-independence era in the Kasturilal case
(1965). However, after this case, the Supreme
Similarly, the officer executing the contract is Court started giving a restrictive interpretation
also not personally liable. This immunity is to sovereign functions of the government and
purely personal and does not immunize the awarded compensation to victims in a large
government from a contractual liability, making number of cases.
the government suable in contracts.
In Nagendra Rao Case (1994), the Supreme
This means that the contractual liability of the Court criticised the doctrine of sovereign
Union government and the state governments is immunity of the State and adopted a liberal
the same as that of an individual under the approach with respect to the tortuous liability of
ordinary law of contract, which has been the the State.
position in India since the days of the East India
Company. It ruled that when a citizen suffers any damage
due to the negligent act of the servants of the
Liability for Torts State, the State would be liable to pay
compensation for it and the State cannot avoid
In the beginning, the East India Company was
this liability on the ground of sovereign
only a trading body. Gradually, it acquired
immunity.
territories in India and became a sovereign
authority. It held that in the modern sense, the distinction
between sovereign and non-sovereign functions
The Company was suable for its functions as a
does not exist.
trader but not as a sovereign. This immunity of
the Company in respect of its sovereign Suits Against Public Officials
functions was based on the English Common
Law maxim that the ‘King can do no wrong’, President and Governor
which means that the King was not liable for
The Constitution confers certain immunities to
wrongs of his servants.
the president of India and governor of states
This traditional immunity of the State (i.e., with regard to their official acts and personal
Crown) in Britain from any legal liability for any acts. These are:
action has been done away by the Crown
• Official Acts
Proceedings Act (1947). However, the position
in India still remains the same. The president and the governors cannot be sued
during the term of their office or thereafter, for
Therefore, the government (Union or states) in
any act done by them in the exercise and
India can be sued for torts (civil wrongs)
performance of their official powers and duties.
committed by its officials only in the exercise of
its non-sovereign functions but not in the However, the official conduct of the president
sovereign functions like administering justice, can be reviewed by a court, tribunal or any other
constructing a military road, commandeering body authorised by either House of Parliament
goods during war, etc. to investigate charges for impeachment.
This distinction between the sovereign and non- Further, the aggrieved person can bring
sovereign functions of the Government in India appropriate proceedings against the Union of
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India instead of the president and the state magistrate, justice of peace, collector or other
instead of the Governor of that state. person acting judicially shall be liable to be sued
in any civil court for any act done by him in the
• Personal Acts discharge of his official duty’.

No criminal proceedings can be started against Civil Servants

the president and the governors in respect of
their personal acts nor can they be arrested or Under the Constitution, the civil servants are
imprisoned. This immunity is limited to the conferred personal immunity from legal liability
period of the term of their office only and does for official contracts. This means that the civil
not extend beyond that. servant who made a contract in his official
capacity is not personally liable in respect of
However, civil proceedings can be started that contract but it is the government (Central
against them during their term of office in or state) that is liable for the contract.
respect of their personal acts after giving two
months’ advance notice. But, if the contract is made without complying
the conditions specified in the Constitution, then
Ministers the civil servant who made the contract is
personally liable.
The Constitution does not grant any immunity
to the ministers for their official acts. But, since Further, the civil servants also enjoy immunity
they are not required to countersign (as in from legal liability for their tortious acts in
Britain) the official acts of the president and the respect of the sovereign functions of the
governors, they are not liable in the courts for government.
those acts.
In other cases, the liability of the civil servants
Moreover, they are not liable for the official acts for torts or illegal acts is the same as of any
done by the president and the governors on ordinary citizen.
their advice as the courts are debarred from
inquiring into such advice. However, the Civil proceedings can be instituted against them
ministers do not enjoy any immunity for their for anything done in their official capacity after
personal acts, and can be sued for crimes as well giving a two months’ advance notice.
as torts in the ordinary courts like common
citizens. But, no such notice is required when the action
is to be brought against them for the acts done
Judicial Officers outside the scope of their official duties.
Criminal proceedings can be instituted against
The judicial officers enjoy immunity from any them for acts done in their official capacity, with
liability in respect of their official acts and the prior permission of the president or the
hence, cannot be sued. The Judicial Officers governor, where necessary.
Protection Act (1850) lays down that, ‘no judge,
********

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Chapter 45 – Political Dynamics

Political Parties Party System in India

Meaning and Types
The Indian party system has the following
Political parties are voluntary associations or characteristic features:
organised groups of individuals who share the
Multi-Party System
same political views and who try to gain
political power through constitutional means The continental size of the country, the
and who desire to work for promoting the diversified character of Indian society, the
national interest. adoption of universal adult franchise, the
peculiar type of political process, and other
There are four types of political parties in the
factors have given rise to a large number of
modern democratic states, viz.,
political parties.
• reactionary parties which cling to the old In fact, India has the largest number of political
socio-economic and political institutions; parties in the world. On the eve of seventeenth
• conservative parties which believe in the Lok Sabha general elections (2019), there were
status-quo; 7 national parties, 52 state parties and 2354
• liberal parties which aim at reforming the registered - unrecognised parties in the country.
existing institutions; and
• radical parties which aim at establishing a Further, India has all categories of parties–left
new order by overthrowing the existing parties, centrist parties, right parties, communal
institutions. parties, non-communal parties and so on.

In their classification of political parties on the Consequently, the hung Parliaments, hung
basis of ideologies, the political scientists have assemblies and coalition governments have
placed the radical parties on the left and the become a common phenomenon.
liberal parties in the centre and reactionary and
conservative parties on the right. One-Dominant Party System

In other words, they are described as the leftist In spite of the multiparty system, the political
parties, centrist parties and the rightist parties. scene in India was dominated for a long period
by the Congress. Hence, Rajni Kothari, an
In India, the CPI and CPM are the examples of eminent political analyst, preferred to call the
leftist parties, the Congress of centrist parties Indian party system as ‘one party dominance
and the BJP is an example of rightist parties. system’ or the ‘Congress system’.

There are three kinds of party systems in the The dominant position enjoyed by the Congress
world, viz., has been declining since 1967 with the rise of
regional parties and other national parties like
• one party system in which only one ruling Janata (1977), Janata Dal (1989) and the BJP
party exists and no opposition is permitted, (1991) leading to the development of a
as for example, in the former communist competitive multiparty system.
countries like the USSR and other East
European countries; Lack of Clear Ideology
• two-party system in which two major
parties exists, as for example, in USA and Except the BJP and the two communist parties
Britain; and (CPI and CPM), all other parties do not have a
• multi-party system in which there are a clear-cut ideology. They (i.e., all other parties)
number of political parties leading to the are ideologically closer to each other. They have
formation of coalition governments, as for a close resemblance in their policies and
example, in France, Switzerland and Italy. programmes. Almost every party advocates
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democracy, secularism, socialism and They have become the ruling parties in various
Gandhism. states like BJD in Odisha, DMK or AIADMK in
Tamil Nadu, Akali Dal in Punjab, AGP in Assam,
More than this, every party, including the so- National Conference in J&K, JD(U) in Bihar and
called ideological parties, is guided by only one so on.
consideration–power capture. Thus, politics has
become issue based rather than the ideology. In the beginning, they were confined to the
regional politics only. But, of late, they have
Personality Cult come to play a significant role in the national
politics due to coalition governments at the
Quite often, the parties are organised around an Centre.
eminent leader who becomes more important
than the party and its ideology. In the 1984 elections, the TDP emerged as the
largest opposition party in the Lok Sabha.
Parties are known by their leaders rather than
by their manifesto. It is a fact that the popularity Factions and Defections
of the Congress was mainly due to the
leadership of Nehru, Indira Gandhi and Rajiv Factionalism, defections, splits, mergers,
Gandhi. fragmentation, polarisation and so on have been
an important aspect of the functioning of
Similarly, the AIADMK in Tamil Nadu and TDP in political parties in India.
Andhra Pradesh got identified with MG
Ramachandran and NT Rama Rao respectively. Lust for power and material considerations
have made the politicians to leave their party
Interestingly, several parties bear the name of and join another party or start a new party.
their leader like Biju Janata Dal, Lok Dal (A),
Congress (I) and so on. The practice of defections gained greater
currency after the fourth general elections
Hence, it is said that “there are political (1967).
personalities rather than political parties in
India”. This phenomenon caused political instability
both at the Centre and in the states and led to
Based on Traditional Factors disintegration of the parties. Thus, there are two
Janata Dals, two TDPs, two DMKs, two
In the western countries, the political parties Communist Parties, two Congress, three Akali
are formed on the basis of socio-economic and Dals, three Muslim Leagues and so on.
political programme. On the other hand, a large
number of parties in India are formed on the Lack of Effective Opposition
basis of religion, caste, language, culture, race
and so on. An effective Opposition is very essential for the
successful operation of the parliamentary
For example, Shiv Sena, Muslim League, Hindu democracy prevalent in India.
Maha Sabha, Akali Dal, Muslim Majlis, Bahujan
Samaj Party, Republican Party of India, Gorkha It checks the autocratic tendencies of the ruling
League and so on. party and provides an alternative government.
However, in the last 50 years, an effective,
These parties work for the promotion of strong, organised and viable national
communal and sectional interests and thereby Opposition could never emerge except in
undermine the general public interest. flashes.

Emergence of Regional Parties The Opposition parties have no unity and very
often adopt mutually conflicting positions with
Another significant feature of the Indian party respect to the ruling party.
system is the emergence of a large number of
regional parties and their growing role.

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They have failed to play a constructive role in assembly; and, in addition, it wins four seats
the functioning of the body politic and in the in the Lok Sabha from any state or states; or
process of nation building. • If it wins two per cent of seats in the Lok
Sabha at a general election; and these
Recognition of National and State Parties
candidates are elected from three states; or
The Election Commission registers political • If it is recognised as a state party in four
parties for the purpose of elections and grants states.
them recognition as national or state parties on
Conditions for Recognition as a State Party
the basis of their poll performance.
At present, a party is recognised as a state party
The other parties are simply declared as
in a state if any of the following conditions is
registered-unrecognised parties.
fulfilled:
The recognition granted by the Commission to
• If it secures six per cent of the valid votes
the parties determines their right to certain
polled in the state at a general election to the
privileges like allocation of the party symbols,
legislative assembly of the state concerned;
provision of time for political broadcasts on the
and, in addition, it wins 2 seats in the
state-owned television and radio stations and
assembly of the state concerned; or
access to electoral rolls.
• If it secures six per cent of the valid votes
Further, the recognized parties need only one polled in the state at a general election to the
proposer for filing the nomination. Also, these Lok Sabha from the state concerned; and, in
parties are allowed to have forty “star addition, it wins 1 seat in the Lok Sabha from
campaigners” during the time of elections and the state concerned; or
the registered-unrecognized parties are allowed • If it wins three per cent of seats in the
to have twenty “star campaigners”. legislative assembly at a general election to
the legislative assembly of the state
The travel expenses of these star campaigners concerned or 3 seats in the assembly,
are not included in the election expenditure of whichever is more; or
the candidates of their parties. • If it wins 1 seat in the Lok Sabha for every 25
seats or any fraction thereof allotted to the
Every national party is allotted a symbol state at a general election to the Lok Sabha
exclusively reserved for its use throughout the from the state concerned; or
country. Similarly, every state party is allotted a • If it secures eight per cent of the total valid
symbol exclusively reserved for its use in the votes polled in the state at a General Election
state or states in which it is so recognised. to the Lok Sabha from the state or to the
legislative assembly of the state. This
A registered-unrecognised party, on the other condition was added in 2011.
hand, can select a symbol from a list of free
symbols. In other words, the Commission The number of recognised parties keeps on
specifies certain symbols as ‘reserved symbols’ changing on the basis of their performance in
which are meant for the candidates set up by the the general elections. On the eve of the
recognised parties and others as ‘free symbols’ seventeenth Lok Sabha general elections
which are meant for other candidates. (2019), there were 8 national parties, 52 state
parties and 2354 registered-unrecognised
Conditions for Recognition as a National parties in the country.
Party
The national parties and state parties are also
At present, a party is recognised as a national known as all-India parties and regional parties
party if any of the following conditions is respectively.
fulfilled:
Role of Regional Parties
• If it secures six per cent of valid votes polled
in any four or more states at a general The presence of a large number of regional
election to the Lok Sabha or to the legislative parties is an important feature of the Indian
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Political System. They have come to play a vital Trinamool Congress, YSR Congress and so
role in Indian politics at all levels, i.e. local, state on.
and national. This is more so in the context of • Those regional parties which have been
the new era of coalition politics. formed by individual leaders on the basis of
their charismatic personality. These are
Features of Regional Parties
called as personalised parties and they are
Following are the features of a regional party: short-lived. The examples are Lok Janshakti
Party, Haryana Vikas Party, Himachal Vikas
• It generally operates within a particular Congress, Congress (J) and so on.
state or specific region. Its electoral base is
Rise of Regional Parties
limited to a single region.
• It articulates regional interests and There are multiple reasons for the emergence of
identifies itself with a particular cultural, regional parties in India. These are as follows:
religious, linguistic or ethnic group.
• It is primarily concerned with exploiting the • Cultural and ethnic pluralism of the Indian
local resources of discontent or preserving a society
variety of primordial demands based on • Economic disparities and regional
language, caste or community or region. imbalances in the development
• It focuses on local or regional issues and • Desire of certain sections or areas to
aims to capture political power at the state maintain separate identity due to historical
level. It has no inclination to expand and factors
control the central government. • Self-interest of the deposed Maharajas and
• It has a political desire for greater regional dispossessed Zamindars
autonomy of states in the Indian Union. • Failure of national politics to meet the
regional aspirations
Classification of Regional Parties
• Reorganisation of states on the basis of
The various regional parties in India can be language
classified into the following four categories: • Charismatic personality of the regional
leaders
• Those regional parties which are based on • Factional fights within the larger parties
the regional culture or ethnicity. These • Role of caste and religion in the political
include Shiromani Akali Dal, National process
Conference, DMK, AIADMK, Telugu Desam, • Alienation and discontentment among the
Shiv Sena, Asom Gana Parishad, Mizo tribal groups
National Front, Jharkhand Mukti Morcha and
so on. Role of Regional Parties
• Those regional parties which have an all- The following points highlight the role played by
India outlook but lack a national electoral the regional parties in Indian politics:
base. The examples are Indian National Lok
Dal, All-India Forward Bloc, Revolutionary • They have provided better governance and a
Socialist Party, Samajwadi Party, Nationalist stable government at the regional level.
Congress Party and so on. • They have posed a challenge to the one-
• Those regional parties which have been party dominant system in the country and
formed by a split in national parties. For led to a decline in the domination of the
example, Bangla Congress, Bharatiya Kranti Congress party.
Dal, Utkal Congress, Kerala Congress, • They have made a strong impact on the
Telangana Praja Samithi, Biju Janata Dal, nature and course of centre-state relations.
Rashtriya Janata Dal, Janata Party, The tension areas in centre-state relations
Samajwadi Janata Party, Samata Party, and the demand for grant of greater

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autonomy made the central leadership more interests. They have neglected the
responsive to the needs of the regional implications and consequences of their
actors. narrow approach to the resolution of
• They have made politics more competitive national issues.
and popular participation in the political • They have encouraged regionalism,
process more extensive at the grass roots. casteism, linguism, communalism and
• They have widened the choice for voters in tribalism which have become hurdles to
both the parliamentary and assembly national integration.
elections. The voters can vote for that party • They are responsible for the unresolution of
which aims to promote the interest of their the inter-state water disputes, inter-state
state/region. border disputes and other inter-state issues.
• They have increased the political • They have also indulged in corruption,
consciousness of the people and also their nepotism, favouritism and other forms of
interest in politics. They bring into focus the misutilisation of power in order to promote
local or regional issues which immediately their self-interest.
attract the attention of the masses. • They have focused more on the populist
• They provided a check against the dictatorial schemes and measures to expand and
tendencies of the central government. They strengthen their electoral base. This has
opposed the ruling congress party at the adversely affected the state economy and
centre on certain issues and forced the development.
dominant party to be more reasonable in its • They bring in regional factor in the decision-
approach to the process of conflict making and the policy-making by the
resolution. coalition government at the centre. They
• They have made a significant contribution force the central leadership to yield to their
for the successful functioning of demands.
parliamentary democracy. In a
parliamentary democracy, the minority Elections
must have its say, the majority must have its Electoral System
way, and the regional parties have played
this role successfully by being ruling parties Articles 324 to 329 in Part XV of the Constitution
in some states and opposition parties at the make the following provisions with regard to
centre. the electoral system in our country:
• The have succeeded in exposing the partisan
• The Constitution (Article 324) provides for
role of the Governors in the appointment
an independent Election Commission in
and dismissal of the Chief Minister, in issuing
order to ensure free and fair elections in the
of ordinances and reservation of bills for the
country. The power of superintendence,
consideration of the President.
direction and conduct of elections to the
• After the dawn of the era of coalition politics,
Parliament, the state legislatures, the office
the regional parties have assumed an
of the President and the office of the Vice-
important role in national politics.
President is vested in the Commission. At
They have joined the coalition governments
present, the commission consists of a chief
formed at the centre and shared power with
election commissioner and two election
the national parties.
commissioners2.
Dysfunctions of Regional Parties • There is to be only one general electoral roll
for every territorial constituency for election
However, there are also negative points in the to the Parliament and the state legislatures.
role of regional parties. These are as follows: Thus, the Constitution has abolished the
system of communal representation and
• They have given more importance to
regional interests rather than national
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separate electorates which led to the manner as provided by the appropriate

partition of the country. legislature. Since 1966, the election petitions
• No person is to be ineligible for inclusion in are triable by high courts alone. But, the
the electoral roll on grounds only of religion, appellate jurisdiction lies with the Supreme
race, caste, sex or any of them. Further, no Court alone.
person can claim to be included in any
special electoral roll for any constituency on Article 323B empowers the appropriate
grounds only of religion, race, caste or sex or legislature (Parliament or state legislature) to
any of them. Thus, the Constitution has establish a tribunal for the adjudication of
accorded equality to every citizen in the election disputes.
matter of electoral franchise.
It also provides for the exclusion of the
• The elections to the Lok Sabha and the state
jurisdiction of all courts (except the special
assemblies are to be on the basis of adult
leave appeal jurisdiction of the Supreme Court)
franchise. Thus, every person who is a
in such disputes. So far, no such tribunal has
citizen of India and who is 18 years of age, is
been established.
entitled to vote at the election provided he is
not disqualified under the provisions of the It must be noted here that in Chandra Kumar
Constitution or any law made by the case (1997), the Supreme Court declared this
appropriate legislature (Parliament or state provision as unconstitutional. Consequently, if
legislature) on the ground of non-residence, at any time an election tribunal is established,
unsound mind, crime or corrupt or illegal an appeal from its decision lies to the high court.
practice.
• Parliament may make provision with Election Machinery
respect to all matters relating to elections to
Election Commission of India (ECI)
the Parliament and the state legislatures
including the preparation of electoral rolls, Under Article 324 of the Constitution of India,
the delimitation of constituencies and all the Election Commission of India is vested with
other matters necessary for securing their the power of superintendence, direction and
due constitution. control of conducting the elections to the Lok
• The state legislatures can also make Sabha
provision with respect to all matters relating
to elections to the state legislatures and State Legislative Assemblies. The Election
including the preparation of electoral rolls Commission of India is a three-member body,
and all other matters necessary for securing with one Chief Election Commissioner and two
their due constitution. But, they can make Election Commissioners. The President of India
provision for only those matters which are appoints the Chief Election Commissioner and
not covered by the Parliament. In other the Election Commissioners.
words, they can only supplement the
parliamentary law and cannot override it. Chief Electoral Officer (CEO)
• The Constitution declares that the validity of
any law relating to the delimitation of The Chief Electoral Officer of a state/ Union
constituencies or the allotment of seats to Territory is authorised to supervise the election
such constituencies cannot be questioned in work in the state/Union Territory subject to the
any court. Consequently, the orders issued overall superintendence, direction and control
by the Delimitation Commission become of the Election Commission.
final and cannot be challenged in any court.
The Election Commission of India nominates or
• The Constitution lays down that no election designates an Officer of the Government of the
to the Parliament or the state legislature is to state / Union Territory as the Chief Electoral
be questioned except by an election petition Officer in consultation with that State
presented to such authority and in such Government / Union Territory Administration.
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District Election Officer (DEO) Presiding Officer

Subject to the superintendence, direction and The Presiding Officer with the assistance of
control of the Chief Electoral Officer, the District polling officers conducts the poll at a polling
Election Officer supervises the election work of station.
a district.
The District Election Officer appoints the
The Election Commission of India nominates or Presiding Officers and the Polling Officers.
designates an officer of the state Government as
the District Election Officer in consultation with In the case of Union Territories, such
the state government. appointments are made by the Returning
Officers.
Returning Officer (RO)
Observers
The Returning Officer of a Parliamentary or
assembly constituency is responsible for the The Election Commission of India nominates
conduct of elections in the Parliamentary or officers of Government as Observers for
assembly constituency concerned. Parliamentary and Assembly Constituencies.
These observers are of various kinds:
The Election Commission of India nominates or
designates an officer of the Government or a • General Observers: The Commission
local authority as the Returning Officer for each deploys General Observers in adequate
of the assembly and parliamentary number to ensure smooth conduct of
constituencies in consultation with the State elections. These Observers are asked to keep
Government / Union Territory Administration. a close watch on every stage of the electoral
process to ensure free and fair elections.
In addition, the Election Commission of India • Expenditure Observers: Expenditure
also appoints one or more Assistant Returning Observers from Central Government
Officers for each of the assembly and Services are appointed to keep a close watch
Parliamentary constituencies to assist the on election expenditure of the candidates
Returning Officer in the performance of his and to ensure that no inducement is offered
functions in connection with the conduct of to the electors during the entire election
elections. process for exercise of their franchise.
• Police Observers: The Commission deploys
Electoral Registration Officer (ERO) IPS officers as Police Observers at State and
District levels, depending upon the
The Electoral Registration Officer is responsible
sensitivity of the Constituency, wherever
for the preparation of electoral rolls for a
required. They monitor all activities relating
Parliamentary / assembly constituency.
to force deployment, law and order situation
The Election Commission of India, in and co-ordinate between the Civil and Police
consultation with the state / UT government, administration to ensure free and fair
appoints an officer of the government or the election.
local authorities as the Electoral Registration • Awareness Observers: For the first time in
Officer. the 16th Lok Sabha Elections (2014), the
Commission deployed Central Awareness
In addition, the Election Commission of India Observers to oversee the efficient and
also appoints one or more Assistant Electoral effective management of the electoral
Registration Officers to assist the Electoral process at the field level, mainly in respect of
Registration Officer in the performance of his voter awareness and facilitation. Awareness
functions in the matter of preparation / revision Observers are deployed to observe the
of electoral rolls. interventions undertaken by the election
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machinery to bridge the gap in people’s When the five-year limit is up, or the legislature
participation in the electoral process has been dissolved and new elections have been
particularly in regard to voters’ turnout. called, the Election Commission puts into effect
They also monitor the various media related the machinery for holding an election.
aspects of RP Act 1951 and observe the
mechanism directed by the Commission at The Constitution states that there can be no
District levels on checking the problem of longer than six months between the last session
‘Paid News’. of the dissolved Lok Sabha and the recalling of
• Micro Observers: In addition to General the new House, so elections have to be
Observers, the Commission also deploys concluded before then.
Micro Observers to observe the poll
The Commission normally announces the
proceedings on the poll day in selected
schedule of elections in a major press
critical polling stations. They are chosen
conference a few weeks before the formal
from Central Government / Central PSUs
process is set in motion.
officials. Micro-Observers verify the BMF at
the Polling stations and certify the same The Model Code of Conduct for guidance of
before start of polling. They observe the candidates and political parties comes
proceedings at the Polling Stations on the immediately into effect after such
poll day right from the mock poll to the announcement.
completion of poll and the process of sealing
of EVMs and other documents to ensure that The formal process for the elections starts with
all instructions of the Commission are the Notification or Notifications calling upon the
complied with by the Polling Parties and the electorate to elect Members of a House. As soon
Polling Agents. They also report to the as Notifications are issued, candidates can start
General Observers directly about vitiation of filing their nominations in the constituencies
the poll proceedings, if any, in their allotted from where they wish to contest. These are
Polling Stations. scrutinised by the Returning Officer of the
• Assistant Expenditure Observers: In constituency concerned after the last date for
addition to Expenditure Observers, the same is over after about a week. The validly
Assistant Expenditure Observers are nominated candidates can withdraw from the
appointed for each Assembly segment to contest within two days from the date of
ensure that all major election campaign scrutiny.
events are videographed and complaints of
electoral malpractices are promptly Contesting candidates get at least two weeks for
attended. political campaign before the actual date of poll.

Election Process On account of the vast magnitude of operations

and the massive size of the electorate, polling is
Time of Elections held on a number of days for the national
elections.
Elections for the Lok Sabha and every state
Legislative Assembly have to take place every A separate date for counting is fixed and the
five years, unless called earlier. results declared for each constituency by the
concerned Returning Officer.
The President can dissolve Lok Sabha and call a
General Election before five years is up, if the The Commission compiles the complete list of
Government can no longer command the members elected and issues an appropriate
confidence of the Lok Sabha, and if there is no Notification for the due constitution of the
alternative government available to take over. House.
Schedule of Elections

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With this, the process of elections is complete During the election campaign, the political
and the President, in case of the Lok Sabha, and parties and contesting candidates are expected
the Governors of the concerned states, in case of to abide by a Model Code of Conduct evolved by
State Assemblies, can then convene their the Election Commission on the basis of a
respective Houses to hold their sessions. consensus among political parties.

Oath or Affirmation The model code lays down broad guidelines as

to how the political parties and candidates
It is necessary for a candidate to make and should conduct themselves during the election
subscribe an oath or affirmation before an campaign.
officer authorised by the Election Commission.
It is intended to maintain the election campaign
For any particular election, the authorised on healthy lines, avoid clashes and conflicts
persons are, principally, the Returning Officer between political parties or their supporters
and the Assistant Returning Officer for the and to ensure peace and order during the
constituency. campaign period and thereafter, until the
results are declared.
In the case of a candidate confined in a prison or
under preventive detention, the superintendent The model code also prescribes guidelines for
of the prison or commandant of the detention the ruling party either at the Centre or in the
camp in which he is so confined or is under such state to ensure that a level field is maintained
detention is authorised to administer the oath. and that no cause is given for any complaint that
the ruling party has used its official position for
And in the case of a candidate confined to bed in
the purposes of its election campaign.
a hospital or elsewhere owing to illness or any
other cause, the medical superintendent in The Model Code of Conduct was agreed to by all
charge of the hospital or the medical the political parties in 1968. The Election
practitioner attending on him is similarly Commission first effectively put to use the Model
authorised. Code of Conduct in the year 1991 to ensure fair
elections and a level playing field.
If a candidate is outside India, the Indian
Ambassador or High Commissioner or Once an election has been called, parties issue
diplomatic consular authorised by him can also manifestos detailing the programmes they wish
administer oath/affirmation. to implement if elected to government, the
strengths of their leaders, and the failures of
The candidate, in person, is required to make
opposing parties and their leaders.
the oath or affirmation immediately after
presenting his nomination papers and in any Slogans are used to popularise and identify
case not later than the day previous to the date parties and issues, and pamphlets and posters
of the scrutiny. distributed to the electorate.

Election Campaign Rallies and meetings where the candidates try

to persuade, cajole and enthuse supporters, and
The campaign is the period when the political
denigrate opponents, are held throughout the
parties put forward their candidates and
constituencies.
arguments with which they hope to persuade
people to vote for their candidates and parties. Personal appeals and promises of reform are
made, with candidates travelling the length and
The official campaign lasts at least two weeks
breadth of the constituency to try to influence as
from the drawing up of the list of nominated
many potential supporters as possible.
candidates, and officially ends 48 hours before
polling closes. Polling Days
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Polling is normally held on a number of different Encouraged by this, the Commission took a
days in different constituencies, to enable the historic decision to use only EVMs for the Lok
security forces and those monitoring the Sabha election in 2004. More than 1 million
election to keep law and order and ensure that EVMs were used in this election.
voting during the election is fair.
Electronic Voting Machine
Ballot Papers and Symbols
An Electronic Voting Machine (EVM) is a simple
After nomination of candidates is complete, a electronic device used to record votes in place of
list of competing candidates is prepared by the ballot papers and boxes which were used earlier
Returning Officer, and ballot papers are printed. in conventional voting system.
Ballot papers are printed with the names of the
candidates (in languages set by the Election The advantages of the EVM over the traditional
Commission) and the symbols allotted to each of ballot paper / ballot box system are given here:
the candidates. Candidates of recognised parties
are allotted their party symbols. • It eliminates the possibility of invalid and
doubtful votes which, in many cases, are the
Voting Procedure root causes of controversies and election
petitions.
Voting is by secret ballot. Polling stations are • It makes the process of counting of votes
usually set up in public institutions, such as much faster than the conventional system.
schools and community halls. • It reduces to a great extent the quantity of
paper used thus saving a large number of
To enable as many electors as possible to vote, trees making the process eco-friendly.
the officials of the Election Commission try to • It reduces cost of printing (almost nil) as
ensure that there is a polling station within two only one sheet of ballot paper is required for
kilometres of every voter, and that no polling each Polling Station.
stations should have to deal with more than
1500 voters. Supervising Elections

Each polling station is open for at least eight The Election Commission appoints a large
hours on the day of the election. number of Observers to ensure that the
campaign is conducted fairly, and that people
On entering the polling station, the elector is are free to vote as they choose. Election
checked against the electoral roll, and allocated expenditure Observers keeps a check on the
a ballot paper. The elector votes by marking the amount that each candidate and party spends
ballot paper with a rubber stamp on or near the on the election.
symbol of the candidate of his choice, inside a
screened compartment in the polling station. Counting of Votes

The voter then folds the ballot paper and inserts After the polling has finished, the votes are
it in a common ballot box which is kept in full counted under the supervision of Returning
view of the Presiding Officer and polling agents Officers and Observers appointed by the
of the candidates. Election Commission.

Since 1998, the Commission has increasingly After the counting of votes is over, the Returning
used Electronic Voting Machines (EVMs) Officer declares the name of the candidate, to
instead of ballot boxes. In 2003, all state whom the largest number of votes have been
elections and by elections were held using given, as the winner and as having been
EVMs. returned by the constituency to the concerned
House.

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Elections to the Lok Sabha are carried out using • Tarkunde Committee was appointed in 1974
a first-past-the- post electoral system. by Jaya Prakash Narayan (JP) during his
“Total Revolution” movement. This
The country is split up into separate unofficial committee submitted its report in
geographical areas, known as constituencies, 1975.
and the electors can cast one vote each for a • Dinesh Goswami Committee on Electoral
candidate, the winner being the candidate who Reforms (1990)
gets the maximum votes. • Vohra Committee on the Nexus between
Crime and Politics (1993)
Elections to the State Assemblies are carried out
• Election Commission of India
in the same manner as for the Lok Sabha
Recommendations on Electoral Reforms
election, with the states and union territories
(1998).
divided into single-member constituencies, and
the first-past-the-post electoral system used. • Indrajit Gupta Committee on State Funding
of Elections (1998)
Media Coverage • Law Commission of India 170th Report on
Reform of the Electoral Laws (1999)
In order to bring as much transparency as • National Commission to Review the
possible to the electoral process, the media are Working of the Constitution (2000–2002). It
encouraged and provided with facilities to cover was headed by M.N. Venkatachaliah.
the election, although subject to maintaining the • Election Commission of India Report on
secrecy of the vote. Proposed Electoral Reforms (2004).
• Second Administrative Reforms
Media persons are given special passes to enter
Commission of India Report on Ethics in
polling stations to cover the poll process and the
Governance (2007). It was headed by
counting halls during the actual counting of
Veerappa Moily.
votes.
• Tankha Committee (Core Committee) was
Election Petitions appointed in 2010 to look into the whole
gamut of the election laws and electoral
Any elector or candidate can file an election reforms.
petition if he or she thinks there has been • J.S. Verma Committee Report on
malpractice during the election. Amendments to Criminal Law (2013).
• Law Commission of India 244th Report on
An election petition is not an ordinary civil suit, Electoral Disqualifications (2014).
but treated as a contest in which the whole • Law Commission of India 255th Report on
constituency is involved. Electoral Reforms (2015).
Election petitions are tried by the High Court of Based on the recommendations made by the
the state involved, and if upheld can even lead to above Committees and Commissions, various
the restaging of the election in that reforms have been introduced in our electoral
constituency. system, election machinery and election
process.
Electoral Reforms
Committees related to Electoral Reforms These can be studied under the following four
heads.
The various committees and commissions
which have examined our electoral system, • Electoral reforms before 1996
election machinery as well as election process • Electoral reforms of 1996
and suggested reforms are mentioned here. • Electoral reforms after 1996
• Electoral reforms since 2010
• Joint Parliamentary Committee on
Amendments to Election Laws (1971–72).
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Electoral Reforms before 1996 Booth Capturing

Lowering of Voting Age In 1989, a provision was made for adjournment

of poll or countermanding of elections in case of
The 61st Constitutional Amendment Act of 1988 booth capturing.
reduced the voting age from 21 years to 18
years for the Lok Sabha as well as the assembly Booth capturing includes:
elections.
• seizure of a polling station and making
This was done in order to provide to the polling authorities surrender ballot papers
unrepresented youth of the country an or voting machines
opportunity to express their feelings and help • taking possession of polling station and
them become a part of political process. allowing only one’s own supporters to
exercise their franchise
Deputation to Election Commission • threatening and preventing any elector from
going to polling station and
In 1988, a provision was made that the officers
• seizure of the place being used for counting
and the staff engaged in preparation, revision
of votes.
and correction of electoral rolls for elections are
deemed to be on deputation to the Election Elector’s Photo Identity Card (EPIC)
Commission for the period of such employment.
The use of electors’ photo identity cards by the
These personnel, during that period, would be Election Commission is surely making the
under the control, superintendence and electoral process simple, smoother and quicker.
discipline of the Election Commission.
A decision was taken by the Election
Increase in Number of Proposers Commission in 1993 to issue photo identity
cards to electors throughout the country to
In 1988, the number of electors who are
check bogus voting and impersonation of
required to sign as proposers in nomination
electors at elections.
papers for elections to the Rajya Sabha and state
legislative council has been increased to 10 per The electoral roll is the basis for issue of EPICs
cent of the electors of the constituency or ten to the registered electors.
such electors, whichever is less. This was done
in order to prevent non-serious candidates from The electoral rolls are normally revised every
contesting frivolously. year with 1st January of the year as the
qualifying date.
Electronic Voting Machines
Every Indian citizen who attain the age of 18
In 1989, a provision was made to facilitate the years or above as on that date is eligible for
use of Electronic Voting Machines (EVMs) in inclusion in the electoral roll and can apply for
elections. the same.
The EVMs were used for the first time in 1998 Once he is registered in the roll, he would be
on experimental basis in selected constituencies eligible for getting an EPIC.
in the elections to the Assemblies of Rajasthan,
Madhya Pradesh and Delhi. The scheme of issuing the EPICs is, therefore, a
continuous and ongoing process for the
The EVMs were used for the first time in the completion of which no time limit can be fixed
general elections (entire state) to the Assembly as the registration of electors is a continuous
of Goa in 1999. and ongoing process (excepting for a brief
period between the last date for filing
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nomination and completion of electoral contest in the elections to the Parliament and
process) on account of more number of persons state legislature for 6 years.
becoming eligible for the right of franchise on
attaining the age of 18. • Offence of insulting the National Flag
• Offence of insulting the Constitution of India
It is the continuous effort of the Election • Offence of preventing the singing of National
Commission to provide the EPICs to the electors Anthem
who have been left out in the previous
campaigns as well as the new electors. Prohibition on the Sale of Liquor

Electoral Reforms of 1996 No liquor or other intoxicants are to be sold or

given or distributed at any shop, eating place,
In 1990, the National Front Government headed hotel or any other place whether public or
by V.P. Singh appointed a committee on private within a polling area during the period
electoral reforms under the chairmanship of of 48 hours ending with the hour fixed for the
Dinesh Goswami, the then Law Minister. conclusion of poll.
The Committee was asked to study the electoral Any person who violates this rule is to be
system in detail and suggest measures for punished with imprisonment up to 6 months or
remedying the drawbacks within it. with fine up to ₹2,000 or with both.
The Committee, in its report submitted in 1990 Number of Proposers
itself, made a number of proposals on electoral
reforms. The nomination of a candidate in a
Parliamentary or assembly constituency should
Some of these recommendations were be subscribed by 10 registered electors of the
implemented in 1996.
constituency as proposers, if the candidate is
not sponsored by a recognised political party. In
These are explained here.
the case of a candidate sponsored by a
Listing of Names of Candidates recognised political party, only one proposer is
required.
The candidates contesting elections are to be
classified into three categories for the purpose This was done in order to discourage non-
of listing of their names. They are serious people from contesting the elections.

• Candidates of recognised political parties Death of a Candidate

• Candidates of registered-unrecognised
Earlier, in case of death of a contesting
political parties
candidate before the actual polling, the election
• Other (independent) candidates
used to be countermanded.
Their names in the list of contesting candidates
Consequently, the election process had to start
and in the ballot papers has to appear separately
all over again in the concerned constituency.
in the above order and in each category these
have to be arranged in the alphabetical order. But now, the election would not be
countermanded on the death of a contesting
Disqualification for Insulting the National
candidate before the actual polling. However, if
Honour Act
the deceased candidate belonged to a
A person who is convicted for the following recognised political party, the party concerned
offences under the Prevention of Insults to would be given an option to propose another
National Honour Act of 1971 is disqualified to candidate within seven days.

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Time Limit for By-Elections But, these provisions are not applicable to the
returning officer, presiding officer, any police
Now, by-elections are to be held within six officer or any other person appointed to
months of occurrence of the vacancy in any maintain peace and order at the polling station.
House of Parliament or a state legislature.
Effective Campaigning Period Reduced
But, this condition is not applicable in two cases:
The minimum gap between the last date for
• Where the remainder of the term of the withdrawal of candidature and the polling date
member whose vacancy is to be filled is less has been reduced from 20 to 14 days.
than one year; or
• When the Election Commission in Electoral Reforms after 1996
consultation with the Central Government,
Presidential and Vice-Presidential Elections
certifies that it is difficult to hold the by-
elections within the said period. In 1997, the number of electors as proposers
and seconders for contesting election to the
Holiday to Employees on the Polling Day
office of the President was increased from 10 to
The registered voters employed in any trade, 50 and to the office of the Vice President from 5
business, industry or any other establishment to 20.
are entitled to a paid holiday on the polling day.
Further, the amount of security deposit was
This rule applies even to the daily wagers. Any increased from ₹2,500 to ₹15,000 for contesting
employer who violates this rule is to be election to both the offices of President and
punished with a fine up to ₹500. However, this Vice-President to discourage frivolous
rule is not applicable in the case of a voter whose candidates.
absence may cause danger or substantial loss in
Requisitioning of Staff for Election Duty
respect of the employment in which he is
engaged. In 1998, a provision was made whereby the
employees of local authorities, nationalised
Contestants Restricted to Two
banks, universities, LIC, government
Constituencies
undertakings and other government-aided
A candidate would not be eligible to contest institutions can be requisitioned for
from more than two Parliamentary or assembly deployment on election duty.
constituencies at a general election or at the by-
Voting through Postal Ballot
elections which are held simultaneously.
In 1999, a provision was made for voting by
Similar restrictions are imposed for biennial
certain classes of persons through postal ballot.
elections and by-elections to the Rajya Sabha
Thus, any class of persons can be notified by the
and the state legislative councils.
Election Commission, in consultation with the
Prohibition of Arms government, and the persons belonging to such
notified class can give their votes by postal
Entering into the neighbourhood of a polling ballot, and not in any other manner, at elections
station with any kind of arms is to be considered in their constituency or constituencies.
a cognizable offence. Such an act is punishable
with imprisonment of up to two years or with Facility to Opt to Vote Through Proxy
fine or with both.
In 2003, the facility to opt to vote through proxy
Further, the arms found in possession of the was provided to the service voters belonging to
offender are to be confiscated and the related the Armed Forces and members belonging to a
licence is to be cancelled. Force to which provisions of the Army Act apply.
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Such service voters who opt to vote through • Introducing open ballot system, instead of
proxy have to appoint a proxy in a prescribed secret ballot system, for elections to the
format and intimate the Returning Officer of the Rajya Sabha. This was done to curb cross-
constituency. voting and to wipe out the role of money
power during Rajya Sabha elections. Under
Declaration of Criminal Antecedents, Assets, the new system, an elector belonging to a
etc., by Candidates political party has to show the ballot paper
after marking his vote to a nominated agent
In 2003, the election Commission issued an
of that political party.
order directing every candidate seeking election
to the Parliament or a State Legislature to Exemption of Travelling Expenditure
furnish on his nomination paper the
information on the following matters. As per a provision of 2003, the traveling
expenditure incurred by the campaigning
• Whether the candidate has been convicted leaders of a political party shall be exempted
or acquitted or discharged in any criminal from being included in the election expenses of
offence in the past? Whether he/she was the candidate.
imprisoned or fined?
• Prior to six months of filing nomination, Free Supply of Electoral Rolls, etc.
whether the candidate is accused in any
pending case, of any offence punishable with According to a 2003 provision, the Government
imprisonment for two years or more, and in should supply, free of cost, the copies of the
which charges were framed or cognizance electoral rolls and other prescribed material to
was taken by a court; if so, the details thereof the candidates of recognised political parties for
• The assets (immovable, movable, bank the Lok Sabha and Assembly elections.
balances, etc.) of a candidate and his/ her
Further, the Election Commission should supply
spouse and that of dependents
specified items to the voters in the
• Liabilities, if any, particularly whether there
constituencies concerned or to the candidates
are any dues of any public financial
set up by the recognised political parties.
institution or government dues
• The educational qualifications of the Parties Entitled to Accept Contribution
candidate
In 2003, the political parties were entitled to
Furnishing of any false information in the accept any amount of contribution from any
affidavit is now an electoral offence punishable person or company other than a government
with imprisonment upto six months or fine or company.
both.
They have to report any contribution in excess
Changes in Rajya Sabha Elections: of ₹20,000 to the Election Commission for
making any claim to any income tax relief.
In 2003, the following two changes were
Besides, the companies would get income tax
introduced with respect to elections to the Rajya
exemption on the amount contributed.
Sabha:
Allocation of Time on Electronic Media
• Domicile or residency requirement of a
candidate contesting an election to the Rajya Under a 2003 provision, the Election
Sabha was removed. Prior to this, a Commission should allocate equitable sharing
candidate had to be an elector in the state of time on the cable television network and
from where he was to be elected. Now, it other electronic media during elections to
would be sufficient if he is an elector in any display or propagate any matter or to address
parliamentary constituency in the country. public.
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This allocation would be decided on the basis of imprisonment of upto two years or with fine or
the past performance of a recognised political with both.
party.
“Exit-poll” is an opinion survey regarding how
Introduction of Braille Signage Features in electors have voted at an election or how all the
EVMs electors have performed with regard to the
identification of a political party or candidate in
The Commission received representations from an election.
the various associations of visually impaired
persons for introduction of Braille signage Time-Limit for Submitting a Case for
features in the EVMs to facilitate the visually Disqualification
impaired voters to cast their votes without the
help of attendant. In 2009, a provision was made for the
simplification of the procedure for
The Commission considered the proposal in disqualification of a person found guilty of
detail and tried the Braille signage feature in the corrupt practices.
EVMs during the bye-election to the Asifnagar
Assembly Constituency of Andhra Pradesh held It provided for a three-month time-limit within
in 2004. which the specified authority will have to
submit the case of a person found guilty of
In 2005, it was tried in one of the constituency corrupt practice to the President for
during the Assembly elections of Bihar, determination of the question of
Jharkhand and Haryana. In 2006, it was tried in disqualification.
one of the constituency of the States of Assam,
West Bengal, Tamil Nadu, Puducherry and All Officials Included in Corrupt Practice
Kerala during Assembly elections.
In 2009, a provision was made for the inclusion
In 2008, it was tried in all the assembly of all officials, whether in the government
constituencies of NCT of Delhi during Assembly service or not, appointed or deputed by the
elections. Election Commission in connection with the
conduct of elections, within the scope of corrupt
The Commission introduced similar Braille practice of obtaining any assistance by a
signage features on the Electronic Voting candidate for the furtherance of the prospects of
Machines during the General Elections to the his election.
Fifteenth Lok Sabha (2009) and simultaneous
Assembly elections in some States. Increase in Security Deposit

Electoral Reforms since 2010 In 2009, the amount of security deposit to be

paid by the candidates contesting elections to
Restrictions Imposed on Exit Polls the Lok Sabha was increased from ₹10,000 to
₹25,000 for the general candidates and from
According to a 2009 provision, conducting exit
₹5,000 to ₹12,500 for SC and ST candidates.
polls and publishing results of exit polls would
be prohibited during the election to Lok Sabha Similarly, the security deposit in the case of
and State Legislative Assemblies. Thus, no elections to the state legislative assembly was
person shall conduct any exit poll and publish or increased from ₹5,000 to ₹10,000 for the
publicise by means of the print or electronic general candidates and from ₹2,500 to ₹5,000
media or disseminate in any other manner, the for the SC and ST candidates.
result of any exit poll during the period notified
by the Election Commission in this regard. This was done in order to check the multiplicity
of non-serious candidates.
Further, any person who contravenes this
provision shall be punishable with
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Appellate Authority within the District Introduction of NOTA Option

In 2009, a provision was made for appointment According to the directions of Supreme Court,
of an appellate authority within the district the Election Commission made provision in the
against the orders of the Electoral Registration ballot papers / EVMs for None of the Above
Officers, instead of the Chief Electoral Officer of (NOTA) option so that the voters who come to
the state. the polling booth and decide not to vote for any
of the candidates in the fray, are able to exercise
Thus, an appeal against any order of the their right not to vote for such candidates while
Electoral Registration Officer of a constituency maintaining the secrecy of their ballot.
(during continuous updation of the electoral
roll) will now lie before the District Magistrate The provision for NOTA has been made since
or Additional District Magistrate or Executive General Election to State Legislative Assemblies
Magistrate or District Collector or an officer of of Chhattisgarh, Madhya Pradesh, Mizoram, NCT
equivalent rank. of Delhi and Rajasthan in 2013 and continued in
the General Election to State Legislative
A further appeal against any order of the District Assemblies of Andhra Pradesh, Arunachal
Magistrate or Additional District Magistrate will Pradesh, Odisha and Sikkim in 2014 along with
now lie before the Chief Electoral Officer of the the General Elections to the Sixteenth Lok Sabha
state. (2014).

Voting Rights to Citizens of India Living The votes polled against the NOTA option are
Abroad not taken into account for calculating the total
valid votes polled by the contesting candidates
In 2010, a provision was made to confer voting
for the purpose of return of security deposits to
rights to the citizens of India residing outside
candidates.
India due to various reasons.
Even if the number of electors opting for NOTA
Accordingly, every citizen of India - (a) whose
options is more than the number of votes polled
name is not included in the electoral roll (b) who
by any of the candidates, the candidate who
has not acquired the citizenship of any other
secures the largest number of votes has to be
country (c) who is absent from his place of
declared elected.
ordinary residence in India owing to his
employment, education or otherwise outside In 2001, the ECI had sent a proposal to the
India (whether temporarily or not) - shall be Government to amend the law so as to provide
entitled to have his name registered in the for a neutral vote provision for the electors who
electoral roll in the Parliamentary / Assembly did not wish to vote for any of the candidates.
constituency in which his place of residence in
India as mentioned in his passport is located. In 2004, PUCL (People’s Union for Civil
Liberties) filed a petition seeking a direction to
Online Enrolment in the Electoral Roll provide the necessary provision in ballot papers
and EVMs for protection of the right to not vote
In 2013, a provision was made for online filing
for any candidate, secretly. The Supreme Court
of applications for enrolment in the electoral
in 2013 held that the ECI may provide for the
roll. For this purpose, the Central Government,
None of the Above (NOTA) option on EVMs and
after consulting the Election Commission, made
ballot papers.
the rules known as the Registration of the
Electors (Amendment) Rules, 2013. These rules Introduction of VVPAT
made certain amendments in the Registration of
Electors Rules, 1960. The Voter Verifiable Paper Audit Trail is an
independent system attached with the EVMs

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that allows the voters to verify that their votes In order to negate this order of the Supreme
are cast as intended. Court, the following two new provisions have
been included in the Representation of the
When a vote is cast, a slip is printed and remains People Act, 1951:
exposed through a transparent window for
seven seconds, showing the serial number, • The first provision expressly provides that
name and symbol of the candidate. by reason of the prohibition to vote (either
due to in jail or in police custody), a person
Thereafter, the receipt automatically gets cut whose name has been entered in the
and falls into the sealed dropbox of the VVPAT. electoral roll shall not cease to be an elector.
• The second provision expressly provides
The system allows a voter to challenge his/her
that a Member of Parliament or the State
vote on the basis of the paper receipt.
Legislature shall be disqualified only if he is
As per rules, the Presiding Officer of the polling so disqualified under the provisions
booth will have to record the dissent of the contained in the Act and on no other ground.
voter, which would have to be taken into
Consequently, the persons in jail or in police
account at the time of counting, if the challenge
custody are allowed to contest the elections.
is found to be false.
Immediate Disqualification of Convicted
The law for using VVPATs was amended in
MPs and MLAs
2013. In 2013, the Supreme Court of India had
permitted the ECI to introduce VVPAT in a In 2013, the Supreme Court held that charge-
phased manner, calling it ‘an indispensable sheeted Members of Parliament and MLAs, on
requirement of free and fair elections’. conviction for offences, will be immediately
disqualified from holding membership of the
The Court had felt that introducing VVPAT
House without being given three months’ time
would ensure the accuracy of the voting system
for appeal, as was the case before.
and also help in manual counting of votes in case
of dispute. The concerned Bench of the Court struck down
as unconstitutional Section 8 (4) of the
VVPATs were first used in bye-election to the
Representation of the People Act (1951) that
Noksen Assembly Constituency of Nagaland
allows convicted lawmakers a three-month
held in 2013. Thereafter, VVPATs have been
period for filing appeal to the higher court and
used in selected constituencies during every
to get a stay of the conviction and sentence.
General Election to State Legislative Assemblies.
The Bench, however, made it clear that the
VVPATs were used in eight selected
ruling will be prospective and those who had
Parliamentary Constituencies in the country in
already filed appeals in various High Courts or
the 2014 Lok Sabha Election. EVMs with VVPAT
the Supreme Court against their convictions
ensure the accuracy and transparency of the
would be exempt from it.
voting system.
Photos of Candidates on EVMs and Ballot
Persons in Jail or Police Custody Can Contest
Papers
Elections
According to an Election Commission order, in
In 2013, the Supreme Court upheld an order of
any election being held after May 1, 2015, the
the Patna High Court declaring that a person
ballot papers and EVMs will carry the picture of
who has no right to vote by reason of being in
the candidate with his or her name and party
jail or in police custody, is not an elector and is,
symbol to avoid confusion among the
therefore, not qualified to contest the elections
electorates in constituencies where namesakes
to the Parliament or the State Legislature.
are contesting.
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The June 2015 by polls to six seats in five states Introduction of Electoral Bonds
were the first elections where photographs of
candidates were used on ballot papers. In 2018, the central government notified the
Electoral Bond Scheme. This scheme was
The Commission has noted that there are many announced in the 2017 budget. It is touted as an
cases where candidates with same or similar alternative to cash donations made to the
names contest from the same constituency. political parties. It is aimed at bringing clean
Although appropriate suffixes are added to the money and substantial transparency into the
names of candidates in the event of two or more system of political funding.
candidates having same name, the Commission
considers that additional measures are required The salient features of the scheme are:
for removing confusion in the minds of electors
at the time of voting. • The electoral bond means a bond issued in
the nature of promissory note which is a
The photograph will appear between the name bearer banking instrument and does not
of the candidate and his or her election symbol. carry the name of the buyer or payee.
• The electoral bonds may be purchased by a
The Commission explained that if a candidate citizen of India or entities incorporated or
fails to provide the photograph, it “shall not be a established in India.
ground for the rejection of the nomination of the • The electoral bonds can be used for making
candidate”. donations to only those registered political
parties which have secured not less than one
The candidates will now be required to submit per cent of the votes polled in the last
their recent photograph, either black and white general election to the Lok Sabha or the State
or coloured, to the election authorities at the legislative Assembly.
time of filing nomination. No uniforms would be • The electoral bonds can be encashed by an
allowed and caps and dark glasses have to be eligible political party only through a bank
avoided. account with the authorized bank.
Ceiling on Cash Donations Lowered • The electoral bonds are issued in the
denomination of ₹1,000, ₹10,000, ₹1,00,000,
In 2017 budget, the limit for anonymous cash ₹10,00,000 and ₹1,00,00,000.
donations by any individual to a political party • The information furnished by the buyer is
has been lowered from ₹20,000 to ₹2,000. This treated confidential by the authorized bank
means that now the political parties cannot and is not to be disclosed to any authority for
receive more than ₹2,000 as cash donations. any purposes, except when demanded by a
However, they are not required to inform the competent court or upon registration of
Election Commission of India the details of criminal case by any law enforcement
persons who donate under ₹2,000. They must agency.
keep records of persons making above ₹2,000
donations. Foreign Funding Allowed

Cap on Corporate Contributions Lifted In 2018 budget, the receiving of foreign funds by
the political parties has been allowed. In other
In 2017 budget, the limit on corporate words, the political parties can now receive
contributions from 7.5 per cent of the net profit funds from the foreign companies. Accordingly,
of a company’s past three financial years has the Foreign Contribution (Regulation) Act,
been removed. This means that now a company 2010, has been amended. Under this
can donate any amount of money to any political amendment, the definition of a foreign company
party. Further, the obligation of the company to has been modified.
report such donations in its profit and loss
account has also been lifted.
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Coalition Government • The underlying principle of a coalition

Meaning of Coalition Government system stands on the simple fact of
temporary conjunction of specific interest.
The term ‘coalition’ is derived from the Latin • Coalition politics is not a static but a dynamic
word ‘coalitio’ which means ‘to grow together’. affair as coalition players and groups
Thus, technically, coalition means the act of dissolve and form new ones.
uniting parts into one body or whole. • The keynote of coalition politics is
compromise, and rigid dogma has no place
Politically, coalition means an alliance of distinct in it.
political parties. Coalition politics or coalition • A coalition government works on the basis
government has been defined in the following of a minimum programme, which may not be
way: ideal for each partner of the coalition.
• Pragmatism and not ideology is the hallmark
• When several political parties join hands to
of coalition politics. In making political
form a government and exercise political
adjustments, principles may have to be set
power on the basis of a common agreed
aside.
programme/agenda, we can describe the
• The purpose of a coalition adjustment is to
system as coalition politics or coalition
seize power.
government.
In our country, we have seen coalitions coming
• Coalitions usually occur in modern up either before the elections or after the
parliaments when no single political party elections.
can muster a majority of votes. Two or more
parties, who have enough elected members The pre-poll coalition is considerably
between them to form a majority, may then advantageous because it provides a common
be able to agree on a common programme platform to the parties in order to woo the
that does not require too many drastic electorate on the basis of a joint manifesto.
compromises with their individual policies,
and can proceed to form a government. The post-election union is intended to enable
constituents to share political power and run
• Coalition is a direct descendant of the the government.
exigencies of multi-party system in a Formation of Coalition Governments
democratic set-up. It is a phenomenon of a
multi-party government where a number of In the first four Lok Sabha elections (1952,
minority parties join hands for the purpose 1957, 1962 and 1967), the Congress party
of running the government. A coalition is secured the required majority to form the
formed when many splinter groups in a government at the Centre.
House agree to join hands on a common
platform by sinking their broad differences Even though there was a split in the Congress
and form a majority in the House. party in 1969, the minority government of
Indira Gandhi managed to continue with the
Features of Coalition Government
outside support of the CPI, the DMK and other
The features or implications of coalition politics parties. Again, the Congress party won the 1971
or coalition government are very well elections and formed a single-party
summarised by J.C. Johari in the following way: government. However, the dominant Congress
party was badly defeated in the 1977 elections.
• Coalitions are formed for the sake of some
Since then, there have been a number of
reward, material or psychic.
coalition governments at the Centre. The details
• A coalition implies the existence of at least
are mentioned in Table below:
two partners.
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Formation of Coalition Governments at the

Centre

Merits of Coalition Government

The various advantages or strengths of the

coalition governments are as follows:

• There is an accommodation of diverse

interests in the functioning of the
government. A coalition government acts as
a channel to meet the expectations and
redress the grievances of different groups.
• India is a highly diversified country. There
are different cultures, languages, castes,
religions and ethnic groups, and all these get
represented in the coalition governments.
This means that a coalition government is
more representative in nature and it better
reflects the popular opinion of the
electorate.
• In other words, it represents a much more
broader spectrum of public opinion than the
single-party government.
• A coalition government comprises different
political parties having their own ideologies
or agendas. But, the governmental policy
requires the concurrence of all the coalition
partners. Therefore, a coalition government
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leads to consensus-based politics. In other • The size of the Council of Ministers in a

words, there is consensual decision-making coalition government is generally quite
in the coalition governments. large. This is because the ministry has to
• Coalition politics strengthens the federal reflect all the constituents of the coalition.
fabric of the Indian political system. This is For example, the A.B. Vajpayee ministry of
because a coalition government is more 1999 had 70-plus ministers and it was called
sensitive and responsive to the regional as ‘Jumbo Ministry’. This creates the
demands and concerns than the single-party problem of distribution of portfolios as well
government. as the proper coordination among the
• A coalition government reduces the tyranny members.
of government (despotic rule). This is due to • The members of coalition governments do
the reduced domination of a single political not assume responsibility for the
party in the functioning of the government. administrative failures and lapses. They play
All the members of the coalition participate blame games and thereby escape from both
in the political decision-making. In short, the collective responsibility as well as individual
decisions made are more balanced. responsibility.
Demerits of Coalition Government Anti-Defection Law
The various disadvantages or weaknesses of the The 52nd Amendment Act of 1985 provided for
coalition governments are as follows: the disqualification of the members of
Parliament and the state legislatures on the
• They are unstable or prone to instability. ground of defection from one political party to
The difference of opinion among the another. For this purpose, it made changes in
coalition partners on policy issues leads to four Articles of the Constitution and added a
the collapse of the government. new Schedule (the Tenth Schedule) to the
• Leadership of the Prime Minister is a Constitution. This act is often referred to as the
principle of parliamentary form of ‘anti-defection law’.
government. This principle is curtailed in a
coalition government as the Prime Minister Later, the 91st Amendment Act of 2003 made
is required to consult the coalition partners one change in the provisions of the Tenth
before taking any major decision. The critics Schedule. It omitted an exception provision i.e.,
have called them as ‘Super Prime Ministers’ disqualification on ground of defection not to
or ‘Ultra Prime Ministers’. apply in case of split.
• The Steering Committee or the Co-
Provisions of the Act
ordination Committee of the coalition
partners acts as the ‘Super-Cabinet’, and The Tenth Schedule contains the following
thereby it undermines the role and position provisions with respect to the disqualification of
of the cabinet in the functioning of the members of Parliament and the state
governmental machinery. legislatures on the ground of defection:
• There is a possibility of the smaller
constituents of the coalition government Disqualification
playing the role of a ‘King-maker’. They
demand more than their strength in the • Members of Political Parties: A member of
Parliament. a House belonging to any political party
• The leaders of regional parties bring in the becomes disqualified for being a member of
regional factors in the national decision- the House,
making. They pressurise the central a) if he voluntarily gives up his membership
executive to act on their lines; otherwise, of such political party; or
they would threaten to withdraw from the b) if he votes or abstains from voting in such
coalition. House contrary to any direction issued
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by his political party without obtaining Deciding Authority

prior permission of such party and such
act has not been condoned by the party Any question regarding disqualification arising
within 15 days. out of defection is to be decided by the presiding
officer of the House.
From the above provision it is clear that a
member elected on a party ticket should Originally, the act provided that the decision of
continue in the party and obey the party the presiding officer is final and cannot be
directions. questioned in any court. However, in Kihoto
Hollohan case (1993), the Supreme Court
• Independent Members: An independent declared this provision as unconstitutional on
member of a House (elected without being the ground that it seeks to take away the
set up as a candidate by any political party) jurisdiction of the Supreme Court and the high
becomes disqualified to remain a member of courts.
the House if he joins any political party after
such election. It held that the presiding officer, while deciding
• Nominated Members: A nominated a question under the Tenth Schedule, function
member of a House becomes disqualified for as a tribunal. Hence, his decision like that of any
being a member of the House if he joins any other tribunal, is subject to judicial review on
political party after the expiry of six months the grounds of mala fides, perversity, etc. But,
from the date on which he takes his seat in the court rejected the contention that the
the House. This means that he may join any vesting of adjudicatory powers in the presiding
political party within six months of taking officer is by itself invalid on the ground of
his seat in the House without inviting this political bias.
disqualification.
Rule-Making Power
Exceptions
The presiding officer of a House is empowered
The above disqualification on the ground of to make rules to give effect to the provisions of
defection does not apply in the following two the Tenth Schedule. All such rules must be
cases: placed before the House for 30 days.

• If a member goes out of his party as a result The House may approve or modify or
of a merger of the party with another party. disapprove them. Further, he may direct that
A merger takes place when two-thirds of the any willful contravention by any member of
members of the party have agreed to such such rules may be dealt with in the same
merger. manner as a breach of privilege of the House.
• If a member, after being elected as the
According to the rules made so, the presiding
presiding officer of the House, voluntarily
officer can take up a defection case only when he
gives up the membership of his party or
receives a complaint from a member of the
rejoins it after he ceases to hold that office. House.
This exemption has been provided in view of
the dignity and impartiality of this office. Before taking the final decision, he must give the
member (against whom the complaint has been
It must be noted here that the provision of the
made) a chance to submit his explanation. He
Tenth Schedule pertaining to exemption from
may also refer the matter to the committee of
disqualification in case of split by one-third
privileges for inquiry. Hence, defection has no
members of legislature party has been deleted immediate and automatic effect.
by the 91st Amendment Act of 2003. It means
that the defectors have no more protection on
grounds of splits.
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Evaluation of the Act bossism on a pedestal and sanctions tyranny

of the party in the name of the party
The Tenth Schedule of the Constitution (which discipline’.
embodies the anti-defection law) is designed to • Its distinction between individual defection
prevent the evil or mischief of political and group defection is irrational. In other
defections motivated by the lure of office or words, ‘it banned only retail defections and
material benefits or other similar legalised wholesale defections’.
considerations. • It does not provide for the expulsion of a
legislator from his party for his activities
It is intended to strengthen the fabric of Indian
outside the legislature.
parliamentary democracy by curbing
• Its discrimination between an independent
unprincipled and unethical political defections.
member and a nominated member is
Rajiv Gandhi, the then Prime Minister, described
illogical. If the former joins a party, he is
it as the ‘first step towards cleaning-up public
disqualified while the latter is allowed to do
life’. The then Central law minister stated that
the same.
the passing of the 52nd Amendment Bill (anti-
• Its vesting of decision-making authority in
defection bill) by a unanimous vote by both the
the presiding officer is criticised on two
Houses of Parliament was ‘a proof, if any, of the
grounds. Firstly, he may not exercise this
maturity and stability of Indian democracy’.
authority in an impartial and objective
Advantages manner due to political exigencies. Secondly,
he lacks the legal knowledge and experience
The following can be cited as the advantages of to adjudicate upon the cases. In fact, two
the anti-defection law: Speakers of the Lok Sabha (Rabi Ray–1991
and Shivraj Patil–1993) have themselves
• It provides for greater stability in the body
expressed doubts on their suitability to
politic by checking the propensity of
adjudicate upon the cases related to
legislators to change parties.
defections.
• It facilitates democratic realignment of
parties in the legislature by way of merger of 91st Amendment Act (2003)
parties.
• It reduces corruption at the political level as Reasons
well as non-developmental expenditure
The reasons for enacting the 91st Amendment
incurred on irregular elections.
Act (2003) are as follows:
• It gives, for the first time, a clear-cut
constitutional recognition to the existence of • Demands have been made from time to time
political parties. in certain quarters for strengthening and
Criticism amending the Anti-defection Law as
contained in the Tenth Schedule, on the
Though the anti-defection law been hailed as a ground that these provisions have not been
bold step towards cleansing our political life and able to achieve the desired goal of checking
started as new epoch in the political life of the defections. The Tenth Schedule has also
country, it has revealed may lacunae in its been criticised on the ground that it allows
operation and failed to prevent defections in bulk defections while declaring individual
toto. It came to be criticised on the following defections as illegal. The provision for
grounds: exemption from disqualification in case of
splits as provided in the Tenth Schedule has,
• It does not make a differentiation between in particular, come under severe criticism on
dissent and defection. It curbs the account of its destabilising effect on the
legislator’s right to dissent and freedom of Government.
conscience. Thus, ‘it clearly puts party
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• The Committee on Electoral Reforms including the Chief Minister, in a state shall
(Dinesh Goswami Committee) in its report of not be less than 12.
1990, the Law Commission of India in its • A member of either House of a state
170th Report on “Reform of Electoral Laws” legislature belonging to any political party
(1999) and the National Commission to who is disqualified on the ground of
Review the Working of the Constitution defection shall also be disqualified to be
(NCRWC) in its report of 2002 have appointed as a minister.
recommended omission of the provision of • A member of either House of Parliament or
the Tenth Schedule pertaining to exemption either House of a State Legislature belonging
from disqualification in case of splits. to any political party who is disqualified on
• The NCRWC was also of the view that a the ground of defection shall also be
defector should be penalised for his action disqualified to hold any remunerative
by debarring him from holding any public political post. The expression “remunerative
office as a minister or any other political post” means (i) any office under the
remunerative political post for at least the Central Government or a state government
duration of the remaining term of the where the salary or remuneration for such
existing Legislature or until, the next fresh office is paid out of the public revenue of the
elections whichever is earlier. concerned government; or (ii) any office
• The NCRWC has also observed that under a body, whether incorporated or not,
abnormally large Councils of Ministers were which is wholly or partially owned by the
being constituted by various Governments Central Government or a state government
at Centre and states and this practice had to and the salary or remuneration for such
be prohibited by law and that a ceiling on the office is paid by such body, except where
number of ministers in a state or the Union such salary or remuneration paid is
Government be fixed at the maximum of compensatory in nature.
10% of the total strength of the popular • The provision of the Tenth Schedule (anti-
House of the Legislature. defection law) pertaining to exemption from
disqualification in case of split by one-third
Provisions members of legislature party has been
deleted It means that the defectors have no
The 91st Amendment Act of 2003 has made the
more protection on grounds of splits.
following provisions to limit the size of Council
of Ministers, to debar defectors from holding Pressure Groups
public offices, and to strengthen the anti- Meaning and Techniques
defection law:
The term ‘pressure group’ originated in the USA.
• The total number of ministers, including the
Prime Minister, in the Central Council of A pressure group is a group of people who are
Ministers shall not exceed 15 per cent of the organised actively for promoting and defending
total strength of the Lok Sabha. their common interest.
• A member of either House of Parliament
belonging to any political party who is It is so called as it attempts to bring a change in
disqualified on the ground of defection shall the public policy by exerting pressure on the
also be disqualified to be appointed as a government.
minister.
It acts as a liaison between the government and
• The total number of ministers, including the
its members.
Chief Minister, in the Council of Ministers in
a state shall not exceed 15 per cent of the The pressure groups are also called interest
total strength of the Legislative Assembly of groups or vested groups. They are different
that state. But, the number of ministers, from the political parties in that they neither
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contest elections nor try to capture political Business Groups

power. They are concerned with specific
programmes and issues and their activities are The business groups include a large number of
confined to the protection and promotion of the industrial and commercial bodies. They are the
interests of their members by influencing the most sophisticated, the most powerful and the
government. largest of all pressure groups in India. They
include:
The pressure groups influence the policymaking
and policy-implementation in the government • Federation of Indian Chamber of Commerce
through legal and legitimate methods like and Industry (FICCI); major constituents are
lobbying, correspondence, publicity, the Indian Merchants Chamber of Bombay,
propagandising, petitioning, public debating, Indian Merchants Chamber of Calcutta and
maintaining contacts with their legislators and South Indian Chamber of Commerce of
so forth. Madras. It broadly represents major
industrial and trading interests.
However, sometimes they resort to illegitimate • Associated Chamber of Commerce and
and illegal methods like strikes, violent Industry of India (ASSOCHAM); major
activities and corruption which damages public constituents are the Bengal Chamber of
interest and administrative integrity. Commerce of Calcutta and Central
Commercial Organisation of Delhi.
According to Odegard, pressure groups resort to ASSOCHAM represents foreign British
three different techniques in securing their capital.
purposes. • Federation of All India Foodgrain Dealers
Association (FAIFDA). FAIFDA is the sole
First, they can try to place in public office
representative of the grain dealers.
persons who are favourably disposed towards
• All-India Manufacturers Organisation
the interests they seek to promote. This
(AIMO). AIMO raises the concerns of the
technique may be labelled electioneering.
medium-sized industry.
Second, they can try to persuade public officers,
Trade Unions
whether they are initially favourably disposed
toward them or not, to adopt and enforce the The trade unions voice the demands of the
policies that they think will prove most industrial workers. They are also known as
beneficial to their interests. This technique may labour groups. A peculiar feature of trade
be labelled lobbying. Third, they can try to unions in India is that they are associated either
influence public opinion and thereby gain an directly or indirectly with different political
indirect influence over government, since the parties.
government in a democracy is substantially
affected by public opinion. This technique may They include:
be labelled propagandizing.
• All-India Trade Union Congress (AITUC)–
Pressure Groups in India
affiliated to CPI
A large number of pressure groups exist in India. • Indian National Trade Union Congress
But, they are not developed to the same extent (INTUC)–affiliated to the Congress
as in the US or the western countries like • Hind Mazdoor Sabha (HMS)–affiliated to the
Britain, France, Germany and so on. Socialists
• Centre of Indian Trade Unions (CITU)–
The pressure groups in India can be broadly affiliated to the CPM
classified into the following categories: • Bharatiya Mazdoor Sangh (BMS)– affiliated
to the BJP

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First Trade Union in India: All India Trade like the trade unions, are also affiliated to
Union Congress (AITUC) was founded in 1920 various political parties. These are:
with Lala Lajpat Rai as its first president. Upto
1945, Congressmen, Socialists and Communists • Akhil Bharatiya Vidyarthi Parishad (ABVP)
worked in the AITUC which was the central (affiliated to BJP)
trade union organisation of workers of India. • All India Students Federation (AISF)
Subsequently, the trade union movement got (affiliated to CPI)
split on political lines. • National Students Union of India (NSUI)
(affiliated to Congress)
Agrarian Groups • Student Federation of India (SFI) (affiliated
to CPM)
The agrarian groups represent the farmers and
the agricultural labour class. They include: Religious Organisations

• Bhartiya Kisan Union (in the wheat belt of The organisations based on religion have come
North India) to play an important role in Indian politics. They
• All India Kisan Sabha (the oldest and the represent the narrow communal interest. They
largest agrarian group) include:
• Revolutionary Peasants Convention
(organised by the CPM in 1967 which gave • Rashtriya Swayam Sevak Sangh (RSS)
birth to the Naxalbari Movement) • Vishwa Hindu Parishad (VHP)
• Bhartiya Kisan Sangh (Gujarat) • Jamaat-e-Islami
• R.V. Sangham (Tamil Nadu) • Ittehad-ul-Mussalmeen
• Shetkhari Sanghatana (Maharashtra) • Anglo-Indian Association
• Hind Kisan Panchayat (controlled by the • Associations of the Roman Catholics
Socialists) • All-India Conference of Indian Christians
• All-India Kisan Sammelan (viii) Parsi Central Association
• United Kisan Sabha (controlled by the CPM) • Shiromani Akali Dal

Professional Associations “The Shiromani Akali Dal should be regarded as

more of a religious pressure group rather than a
These are associations that raise the concerns political party in view of the fact that it has been
and demands of doctors, lawyers, journalists concerned more with the mission of saving the
and teachers. sikh community from being absorbed into the
ocean of hindu society than with fighting for the
Despite various restrictions, these associations cause of a sikh homeland”.
pressurise the government by various methods
including agitations for the improvement of Caste Groups
their service conditions. They include:
Like religion, caste has been an important factor
• Indian Medical Association (IMA) in Indian politics. The competitive politics in
• Bar Council of India (BCI) many states of the Indian Union is in fact the
• Indian Federation of Working Journalists politics of caste rivalries: Brahmin versus Non-
(IFWJ) Brahmin in Tamil Nadu and Maharashtra,
• All India Federation of University and Rajput versus Jat in Rajasthan, Kamma versus
College Teachers (AIFUCT) Reddy in Andhra, Ahir versus Jat in Haryana,
Baniya Brahmin versus Patidar in Gujarat.
Student Organisations
Kayastha versus Rajput in Bihar, Nair versus
Various unions have been formed to represent Ezhava in Kerala and Lingayat versus Okkaliga
the student community. However, these unions, in Karnataka.

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Some of the caste-based organisations are: These groups include:

• Nadar Caste Association in Tamil Nadu • Environmental protection groups like

• Marwari Association Narmada Bachao Andolan, and Chipko
• Harijan Sevak Sangh Movement
• Kshatriya Maha Sabha in Gujarat • Democratic rights organisations
• Vanniyakul Kshatriya Sangam • Civil liberties associations
• Kayastha Sabha • Gandhi Peace Foundation
• Woman rights organisations
Tribal Organisations
Anomic Groups
The tribal organisations are active in MP,
Chattisgarh, Bihar, Jharkhand, West Bengal and Almond and Powell observed: “By anomic
the North Eastern States of Assam, Manipur, pressure groups we mean more or less a
Nagaland and so on. spontaneous breakthrough into the political
system from the society such as riots,
Their demands range from reforms to that of demonstrations, assassinations and the like.
secession from India and some of them are
involved in insurgency activities. The tribal The Indian Government and bureaucratic elite,
organisations include: overwhelmed by the problem of economic
development and scarcity of resources available
• National Socialist Council of Nagaland to them, inevitably acquires a technocratic and
(NSCN) anti-political frame of mind, particularistic
• Tribal National Volunteers (TNU) in Tripura demands of whatever kinds are denied
• People’s Liberation Army in Manipur legitimacy.
• All-India Jharkhand
• Tribal Sangh of Assam As a consequence interest groups are alienated
• United Mizo Federal Organisation from the political system”. Some of the anomic
pressure groups are:
Linguistic Groups
• All-India Sikh Student’s Federation.
Language has been so important factor in Indian • Nava Nirman Samithi of Gujarat.
politics that it became the main basis for the • Naxalite Groups.
reorganisation of states. The language along • Jammu and Kashmir Liberation Front
with caste, religion and tribe have been (JKLF).
responsible for the emergence of political • All Assam Student’s Union.
parties as well as pressure groups. Some of the • United Liberation Front of Assam (ULFA).
linguistic groups are: • Dal Khalsa

• Tamil Sangh National Integration

• Anjuman Tarraki-i-Urdu
• Andhra Maha Sabha India is a land of widespread diversities in terms
• Hindi Sahitya Sammelan of religion, language, caste, tribe, race, region
• Nagari Pracharani Sabha and so on.
• Dakshina Bharat Hindi Prachar Sabha
Hence, the achievement of national integration
Ideology Based Groups becomes very essential for the all-around
development and prosperity of the country.
In more recent times, the pressure groups are
formed to pursue a particular ideology, i.e., a
cause, a principle or a programme.

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Meaning of National Integration in preference to the state of which the region

forms a part.
Definitions and statements on national
integration: Regionalism is “a subsidiary process of political
integration in India. It is a manifestation of those
“National integration implies avoidance of residual elements which do not find expression
divisive movements that would balkanise the in the national polity and national culture, and
nation and presence of attitudes throughout the being excluded from the centrality of the new
society that give preference to national and polity, express themselves in political
public interest as distinct from parochial discontent and political exclusionism”.
interests” Myron Weiner.
Regionalism is a country-wide phenomenon
“National integration is a socio-psychological which manifests itself in the following six forms:
and educational process through which a feeling
of unity, solidarity and cohesion develops in the • Demand of the people of certain states for
hearts of the people and a sense of common secession from the Indian Union (like
citizenship or feeling of loyalty to the nation is Khalistan, Dravid Nad, Mizos, Nagas and so
fostered among them” HA Gani. on).
• Demand of the people of certain areas for
“National integration is not a house which could separate statehood (like Telangana,
be built by mortar and bricks. It is not an Bodoland, Uttarakhand, Vidharbha,
industrial plan too which could be discussed and Gorkhaland and so on).
implemented by experts. Integration, on the • Demand of people of certain Union
contrary, is a thought which must go into the Territories for full-fledged statehood (like
heads of the people. It is the consciousness Manipur, Tripura, Puducherry, Delhi, Goa,
which must awaken the people at large” Dr. S. Daman and Diu and so on).
Radhakrishna. • Inter-state boundary disputes (like
Chandigarh and Belgaum) and river water
“National integrations means, and ought to
disputes (like Cauvery, Krishna, Ravi-Beas
mean, cohesion not fusion, unity but not
and so on).
uniformity, reconciliation but not merger,
agglomeration but not assimilation of the • Formation of organisations with regional
discrete segments of the people constituting a motives which advocates a militant
political community or state” Rasheeduddin approach in pursuing its policies and goals
Khan. (like Shiv Sena, Tamil Sena, Hindi Sena,
Sardar Sena, Lachit Sena and so on).
To sum-up, the concept of national integration • ‘Sons of the soil theory’ which advocates
involves political, economic, social, cultural and preference to local people in government
psychological dimensions and the inter- jobs, private jobs, permits and so on. Their
relations between them. slogan will be Assam for Assamese,
Maharashtra for Maharashtrians and so on.
Obstacles to National Integration
Communalism
Among the major obstacles to national
integration include: Communalism means love for one’s religious
community in preference to the nation and a
Regionalism tendency to promote the communal interest at
the cost of the interest of other religious
Regionalism refers to sub-nationalism and sub-
communities.
territorial loyalty. It implies the love for a
particular region or state in preference to the It has its roots in the British rule where the
country as a whole. There is also sub- 1909, 1919 and 1935 Acts had introduced
regionalism, that is, love for a particular region
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communal representation for the Muslims, • Allotment of party tickets during elections
Sikhs and others. and the formation of council of ministers in
the states on caste lines.
The communalism got accentuated with the • Caste conflicts between higher and lower
politicisation of religion. Its various castes or between dominant castes in
manifestations are: various states like Bihar, Uttar Pradesh,
Madhya Pradesh and so on.
• Formation of political parties based on
• Violent disputes and agitations over the
religion (like Akali Dal, Muslim League, Ram
reservation policy.
Rajya Parishad, Hindu Mahasabha, Shiv Sena
and so on). B.K. Nehru observed: “The communal
• Emergence of pressure groups (nonpolitical electorates (of the British days) in a vestigal
entities) based on religion (like RSS, Vishwa form still remain in the shape of reservations for
Hindu Parishad, Jamaat-e-Islami, Anglo- the Scheduled Castes and Scheduled Tribes.
Indian Christians Association and so on). They serve to emphasise caste origin and make
• Communal riots (between Hindus and people conscious of the caste in which they were
Muslims, Hindus and Sikhs, Hindus and born. This is not conducive to national
Christians and so on–Benaras, Lucknow, integration”.
Mathura, Hyderabad, Allahabad, Aligarh,
Amritsar, Moradabad and some other places At the state level, the politics is basically a fight
are affected by communal violence). between the major caste groups like Kamma
• Dispute over religious structures like versus Reddy in Andhra Pradesh, Lingayat
temples, mosques and others (The dispute versus Vokaligga in Karnataka, Nayar versus
over Ram Janma Bhoomi in Ayodhya where Ezhava in Kerala, Bania versus Patidar in
the kar sevaks had demolished a disputed Gujarat, Bhumiar versus Rajput in Bihar, Jat
structure on December 6, 1992). versus Ahir in Haryana, Jat versus Rajput in
Uttar Pradesh, Kalita versus Ahom in Assam and
The reasons for the persistence of so on.
communalism include religious orthodoxy of
muslims, role of Pakistan, hindu chauvinism, Linguism
government’s inertia, role of political parties
and other groups, electoral compulsions, Linguism means love for one’s language and
communal media, socio-economic factors and so hatred towards other language-speaking
on. people. The phenomena of linguism, like that of
regionalism, communalism or casteism, is also a
Casteism consequence of political process. It has two
dimensions:
Casteism implies love for one’s own caste-group
in preference to the general national interest. It • the reorganisation of states on the basis of
is mainly an outcome of the politicisation of language; and
caste. Its various manifestations include: • the determination of the official language of
the Union.
• Formation of political parties on the basis of
caste (like Justice Party in Madras, DMK, The creation of the first linguistic state of
Kerala Congress, Republican Party, Bahujan Andhra out of the then Madras state in 1953 led
Samaj Party and so on). to the countrywide demand for the
• Emergence of pressure groups (nonpolitical reorganisation of states on the basis of language.
entities) based on caste (like Nadar Consequently, the states were reorganised on a
Association, Harijan Sevak Sangh, Kshatriya large-scale in 1956 on the basis of the
Mahasabha and so on). recommendations made by the States
Reorganisation Commission (1953–1955).
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Even after this, the political map of India The council made various recommendations for
underwent a continuous change due to the national integration. However, these
pressure of popular agitations and the political recommendations remained only on paper and
conditions, which resulted in the bifurcation of no effort was made either by the Centre or by
existing states like Bombay, Punjab, Assam, and the states to implement them.
so on.
In 1968, the Central government revived the
By the end of 2000, the number of states and National Integration Council. Its size was
union territories had reached 28 and 7 from that increased from 39 to 55 members. The
of 14 and 6 in 1956 respectively. representatives of industry, business and trade
unions were also included in it.
The enactment of the Official Language Act
(1963) making Hindi as the Official Language of The council met at Srinagar and adopted a
the Union led to the rise of anti-Hindi agitation resolution condemning all tendencies that
in South India and West Bengal. struck at the root of national solidarity.

Then, the Central government assured that It appealed to the political parties, organisations
English would continue as an ‘associate’ official and the press to mobilise the constructive forces
language so long as the non-Hindi speaking of society in the cause of national unity and
states desire it. solidarity.

Moreover, the three-language formula (English, It also set up three committees to report on
Hindi and a regional language) for school regionalism, communalism and linguism
system is still not being implemented in Tamil respectively. However, nothing tangible was
Nadu. Consequently, Hindi could not emerge as achieved.
the lingua franca of the composite culture of
India as desired by the framers of the In 1980, the Central government again revived
Constitution. the National Integration Council which had
become defunct.
The problem of linguism got accentuated with
the rise of some regional parties in recent times Its membership was made more broad-based. It
like the TDP, AGP, Shiv Sena and so on. had three items on the agenda for discussion
viz., the problem of communal harmony, unrest
National Integration Council in the north-eastern region and need for a new
education system.
The National Integration Council (NIC) was
constituted in 1961, following a decision taken The council set up a standing committee to keep
at a national conference on ‘unity in a constant watch on the activities of communal
and other divisive forces posing a threat to the
diversity’, convened by the Central government,
national unity.
at New Delhi. It consisted of the prime minister
as chairman, central home minister, chief In 1986, the NIC was reconstituted and its
ministers of states, seven leaders of political membership was further increased. It
parties, the chairman of the UGC, two recognised terrorism in Punjab as an attack on
educationists, the commissioner for SCs and STs the unity, integrity and secular ideals of the
and seven other persons nominated by the country.
prime minister.
Accordingly, it passed a resolution to fight
The council was directed to examine the terrorism in Punjab. The council also set up a
problem of national integration in all its aspects 21-member committee to function on a
and make necessary recommendations to deal continuing basis.
with it.
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The committee was asked to formulate both were some of the important items on the agenda
short-term as well as long-term proposals for of the meeting.
maintaining communal harmony and
preserving national integrity. In April 2010, the United Progressive Alliance
(UPA) Government again reconstituted the
In 1990, the National Front Government headed National Integration Council (NIC) under the
by V.P. Singh reconstituted the National chairmanship of the Prime Minister, Manmohan
Integration Council. Its strength was increased Singh.
to 101. It included prime minister as chairman,
some Central ministers, state chief ministers, The NIC has 147 members, including Union
leaders of national and regional parties, Ministers, Leaders of the Opposition in the Lok
representatives of women, trade and industry, Sabha and the Rajya Sabha, the Chief Ministers
academicians, journalists and public figures. It of all states and union territories with
had various items on the agenda for discussion, Legislatures.
viz., Punjab problem, Kashmir problem, violence
It also includes leaders of national and regional
by secessionists, communal harmony and Ram
political parties, chairpersons of national
Janmabhomi-Babri Masjid problem at Ayodhya.
commissions, eminent journalists, public
But, there was no concrete result.
figures, and representatives of business and
In 2005, the United Progressive Alliance (UPA) women’s organisations. It is chiefly aimed at
Government reconstituted the National suggesting means and ways to combat the
Integration Council under the chairmanship of menace of communalism, casteism and
the Prime Minister, Manmohan Singh. regionalism.

The 103- member NIC was constituted after a In October 2010, the Government also
gap of 12 years having held its meeting in 1992. constituted a Standing Committee of the NIC. It
Besides some central ministers, state and UT consists of Union Home Minister as Chairman,
chief ministers and leaders of national and four Union Ministers, nine Chief Ministers of
regional parties, the NIC included chairpersons various states and five co-opted members from
of National Commissions, eminent public figures NIC. It would finalise the agenda items for NIC
and representatives from business, media, meetings.
labour and women.
The 15th meeting of the NIC was held in
The NIC was to function as a forum for effective September, 2011. The agenda for the meeting
initiative and interaction on issues of national included measures to curb communalism and
concern, review issues relating to national communal violence; approach to the Communal
integration and make recommendations. Violence Bill; measures to promote communal
harmony; measures to eliminate
The 14th meeting of the NIC was held in 2008 in
the backdrop of communal violence in various discrimination, especially against minorities
states like Orissa, Karnataka, Maharashtra, and scheduled tribes; how the state and the
Jammu and Kashmir and Assam and so on. police should handle civil disturbances; and
how to curb radicalisation of youth in the name
Promotion of education among minorities, of religion and caste.
scheduled castes and scheduled tribes;
elements contributing to national integration; The 16th meeting of the NIC was held on 23–09-
removal of regional imbalances, caste and 2013. A Resolution was passed in the meeting to
identity divisions; prevention of extremism; condemn violence, take all measures to
promotion of communal harmony and security strengthen harmonious relationship between
among minorities; and equitable development all communities, to resolve differences and
disputes among the people within the
framework of law, to condemn atrocities on
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Scheduled Castes and Scheduled Tribes, to programs, reaching out to the victims of
condemn sexual abuse and to ensure that all violence especially children, encouraging
women enjoy the fruits of freedom to pursue interfaith dialogue for India’s shared security,
their social and economic development with peace and prosperity.
equal opportunities, and to safeguard their right
of movement in the public space at any time of The activities undertaken by the NFCH are
the day or night. mentioned below:

National Foundation for Communal • To provide financial assistance to the child

Harmony victims of societal violence for their care,
education and training, aimed at their
The National Foundation for Communal effective rehabilitation.
Harmony (NFCH) was set up in 1992. It is an • To promote communal harmony and
autonomous body under the administrative national integration by organising variety of
control of the Union Home Ministry. activities either independently or in
association with educational institutions,
It promotes communal harmony, fraternity and
NGOs & other organisations
national integration.
• To conduct studies and grant scholarships to
The vision and mission of the NFCH are as institutions / scholars for conducting
follows: studies
• To confer awards for outstanding
Vision: India free from communal and all other contribution to communal harmony and
forms of violence where all citizens especially national integration
children and youth live together in peace and • To involve Central / state governments / UT
harmony. Administrations, industrial / commercial
organisations, NGOs and others in
Mission: Promoting communal harmony, promoting the objectives of the Foundation
strengthening national integration and • To provide information services, publish
fostering unity in diversity through monographs and books, etc. on the subject.
collaborative social action, awareness
********

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Chapter 46 - Representation of People’s Act

Representation of People’s Act 1950 for the Scheduled Castes and for the Scheduled
An Act to provide the allocation of seats in, and Tribes of the State, shall be as shown in that
the delimitation of constituencies for the Schedule.
purpose of election to, the House of the People
Every assembly constituency referred to above
and the Legislatures of States, the
sub-sections shall be a single-member
qualifications of voters at such elections, the constituency.
preparation of electoral rolls.
Part I: Preliminary Section 8. Consolidation of delimitation
Section 1. Short title orders.

Section 2. Definitions Having regard to all the orders relating to the

delimitation of parliamentary and assembly
constituencies in all States and Union
Part II: Allocation of Seats and Delimitation Territories, except the States of Arunachal
of Constituencies Pradesh, Assam, Jharkhand, Manipur and
Nagaland, made by the Delimitation
Section 3. Allocation of seats in the House of
Commission and published in the Official
the People.
Gazette, the Election Commission shall
The allocation of seats to the States in the House • after making such amendments as appear to
of the People and the number of seats, if any, to it to be necessary for bringing up-to-date the
be reserved for the Scheduled Castes and for the
description of the extent of the
Scheduled Tribes of each State shall be as shown
parliamentary and assembly constituencies
in the First Schedule.
as given in such orders, without, however,
Section 4. Filling of seats in the House of the altering the extent of any such constituency
People and Parliamentary Constituencies. • after taking into account the provisions of
the Delimitation of Parliamentary and
All the seats in the House of the People allotted Assembly Constituencies Order, 1976, as
to the States under section 3 shall be seats to be made applicable pursuant to the orders
filled by persons chosen by direct election from made by the President under section 10A of
parliamentary constituencies in the States. the Delimitation Act, 2002 relating to
delimitation of parliamentary and assembly
Every parliamentary constituency referred to in constituencies in the States of Arunachal
above mentioned sub-section shall be a single-
Pradesh, Assam, Manipur and Nagaland, and
member constituency.
the provisions of section 10B of the said Act
Every State to which only one seat is allotted relating to delimitation of parliamentary and
under section 3 shall form one parliamentary assembly constituencies in the State of
constituency. Jharkhand,
consolidate all such orders into one single order
Section 7. Total number of seats in
to be known as the Delimitation of
Legislative Assemblies and Assembly
Parliamentary and Assembly Constituencies
Constituencies.
Order, 2008 and shall send authentic copies of
The total number of seats in the Legislative that Order to the Central Government and to the
Assembly of each State specified in the Second Government of each State having a Legislative
Schedule, to be filled by persons chosen by Assembly.
direct election from Assembly Constituencies,
and the number of seats, if any, to be reserved
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As soon as may be, after the said Order is Section 9. Power of Election Commission to
received by the Central Government or by the maintain Delimitation Order up-to-date
Government of a State, that Government shall
The Election Commission may, from time to
cause it to be laid before the House of the People
time, by notification published in the Gazette of
or, as the case may be, the Legislative Assembly
India and in the Official Gazette of the State
of the State.
concerned,
Section 8A. Delimitation of Parliamentary
• correct any printing mistake, make
and Assembly Constituencies in the States of
amendments in the Delimitation of
Arunachal Pradesh, Assam, Manipur or
Parliamentary and Assembly Constituencies
Nagaland.
Order, 2008 or any error arising therein
If the President is satisfied that the situation and from inadvertent slip or omission.
the conditions prevailing in the States of
Section 10. Allocation of seats in the
Arunachal Pradesh, Assam, Manipur or
Legislative Councils
Nagaland are conducive for the conduct of
delimitation exercise, he may, by order, rescind The allocation of seats in the Legislative
the deferment order issued under the Councils of the States having such Councils shall
provisions of section 10A of the Delimitation be as shown in the Third Schedule.
Act, 2002 in relation to that State, and provide
for the conduct of delimitation exercise in the
State by the Election Commission.

Section 11. Delimitation of Council o the number of seats allotted to each

constituencies. constituency.
After the commencement of this Act, the Section 12. Power to alter or amend orders.
President shall, by order, determine
The President may, from time to time, after
• the constituencies into which each State consulting the Election Commission, by order,
having a Legislative Council shall be divided alter or amend any order made by him under
for the purpose of elections to that Council section 11.
under each of the sub-clauses (a), (b) and (c)
Section 13. Procedure as to orders delimiting
of clause (3) of article 171;
constituencies
o the extent of each constituency; and
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Every order made under section 11 or section Section 13C. Assistant electoral registration
12 shall be laid before Parliament as soon as officers
may be after it is made, and shall be subject to
• The Election Commission may appoint one
such modifications as Parliament may make on
or more persons as assistant electoral
a motion made within twenty days from the date
registration officers to assist any electoral
on which the order is so laid.
registration officer in the performance of his
Part IIA: Officers functions.
Section 13A. Chief electoral officers • Every assistant electoral registration officer
shall, subject to the control of the electoral
• There shall be for each State a chief electoral
registration officer, be competent to
officer who shall be such officer of
perform all or any of the functions of the
Government as the Election Commission
electoral registration officer.
may, in consultation with that Government,
designate or nominate in this behalf. Section 13CC. Chief electoral officers, district
• Subject to the superintendence, direction election officers, etc., deemed to be on
and control of the Election Commission, the deputation to Election Commission.
chief electoral officer shall supervise the
The officers referred to in this Part and any
preparation, revision and correction of all
other officer or staff employed in connection
electoral rolls in the State under this Act.
with the preparation, revision and correction of
Section 13AA. District election officers. the electoral rolls for, and the conduct of, all
elections shall be deemed to be on deputation to
• For each district in a State, the Election
the Election Commission for the period during
Commission shall, in consultation with the
which they are so employed and such officers
Government of the State, designate or
and staff shall, during that period, be subject to
nominate a district election officer who shall
the control, superintendence and discipline of
be an officer of Government.
the Election Commission.
• Under the superintendence, direction and
control of the chief electoral officer, the Part IIB: Electoral Rolls For Parliamentary
district election officer shall coordinate and Constituencies
supervise all work in the district or in the Section 13D. Electoral rolls for
area within his jurisdiction in connection parliamentary constituencies
with the preparation and revision of the
• The electoral roll for every parliamentary
electoral rolls for all parliamentary,
constituency, other than a parliamentary
assembly and council constituencies within
constituency in the State of Jammu and
the district.
Kashmir or in a Union territory not having a
• The district election officer shall also
Legislative Assembly, shall consist of the
perform such other functions as may be
electoral rolls for all the assembly
entrusted to him by the Election
constituencies comprised within that
Commission and the chief electoral officer.
parliamentary constituency; and it shall not
Section 13B. Electoral registration officers be necessary to prepare or revise separately
the electoral roll for any such parliamentary
The electoral roll shall be prepared and revised constituency.
by an electoral registration officer who shall be
• The provisions of Part III shall apply in
such officer of Government or of a local
relation to every parliamentary
authority as the Election Commission may, in
constituency in the State of Jammu and
consultation with the Government of the State in
Kashmir or in a Union territory not having a
which the constituency is situated, designate or
Legislative Assembly as they apply in
nominate in this behalf.
relation to an assembly constituency.

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Part III: Electoral Rolls for Assembly Every person who

Constituencies
a) is not less than eighteen years of age on the
Section 14. Definitions
qualifying date, and
• qualifying date, in relation to the b) is ordinarily resident in a constituency,
preparation or revision of every electoral
shall be entitled to be registered in the electoral
roll under this Part, means the 1st day of
roll for that constituency.
January of the year in which it is so prepared
or revised Section 20. Meaning of “ordinarily resident”
• qualifying date, in relation to the
• A person shall not be deemed to be
preparation or revision of every electoral
ordinarily resident in a constituency on the
roll under this Part in the year 1989, shall be
ground only that he owns, or is in possession
the 1st day of April, 1989.
of, a dwelling house therein.
Section 16. Disqualifications for registration • A person absenting himself temporarily
in an electoral roll. from his place of ordinary residence shall
not by reason thereof cease to be ordinarily
• A person shall be disqualified for
resident therein.
registration in an electoral roll if he
• A member of Parliament or of the
a) is not a citizen of India; or
Legislature of a State shall not during the
b) is of unsound mind and stands so
term of his office cease to be ordinarily
declared by a competent court; or
resident in the constituency in the electoral
c) is for the time being disqualified from
roll of which he is registered as an elector at
voting under the provisions of any law
the time of his election as such member, by
relating to corrupt practices and other
reason of his absence from that constituency
offences in connection with elections.
in connection with his duties as such
• The name of any person who becomes so
member.
disqualified after registration shall
• A person who is a patient in any
forthwith be struck off the electoral roll in
establishment maintained wholly or mainly
which it is included.
for the reception and treatment of persons
• The name of any person struck off the
suffering from mental illness or mental
electoral roll of a constituency by reason of a
defectiveness, or who is detained in prison
disqualification shall forthwith be re-
or other legal custody at any place, shall not
instated in that roll if such disqualification is,
by reason thereof be deemed to be
during the period such roll is in force,
ordinarily resident therein.
removed under any law authorising such
• Any person having a service qualification
removal.
shall be deemed to be ordinarily resident on
Section 17. No person to be registered in any date in the constituency in which, but for
more than one constituency. his having such service qualification, he
would have been ordinarily resident on that
No person shall be entitled to be registered in
date.
the electoral roll for more than one
constituency. "service qualification" means-
Section 18. No person to be registered more ▪ being a member of the armed forces of
than once in any constituency. the Union; or
▪ being a member of a force to which the
No person shall be entitled to be registered in
provisions of the Army Act, 1950, have
the electoral roll for any constituency more than
been made applicable whether with or
once.
without modifications; or
Section 19. Conditions of registration

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▪ being a member of an armed police force shall be revised in any year if such revision
of a State, who is serving outside that has been directed by the Election
State; or Commission.
▪ being a person who is employed under
the Government of India, in a post • The Election Commission may at any time,
outside India. direct a special revision of the electoral roll
• Any person holding any office in India for any constituency or part of a
declared by the President in consultation constituency in such manner as it may think
with the Election Commission, shall be fit.
deemed to be ordinarily resident on any date
The electoral roll for the constituency, as in
in the constituency in which, but for the
force at the time of the issue of any such
holding of any such office, he would have
direction, shall continue to be in force until the
been ordinarily resident on that date.
completion of the special revision so directed.
Section 20A. Special provisions for citizens of
Section 22. Correction of entries in electoral
India residing outside India.
rolls.
Every citizen of India
If the electoral registration officer for a
• whose name in not included in the electoral constituency, on application made to him or on
roll; his own motion, is satisfied after such inquiry as
• who has not acquired the citizenship of any he thinks fit, that any entry in the electoral roll
other country; and of the constituency—
• who is absenting from his place of ordinary
• is erroneous or defective in any particular,
residence in India owing to his employment,
• should be transposed to another place in the
education or otherwise outside India
roll on the ground that the person concerned
(whether temporarily or not),
has changed his place of ordinary residence
shall be entitled to have his name registered in within the constituency, or
the electoral roll in the constituency in which his • should be deleted on the ground that the
place of residence in India as mentioned in his person concerned is dead or has ceased to be
passport is located. ordinarily resident in the constituency or is
otherwise not entitled to be registered in
Section 21. Preparation and revision of
that roll,
electoral rolls.
the electoral registration officer shall, subject to
• The electoral roll for each constituency shall
such general or special directions, if any, as may
be prepared in the prescribed manner by
be given by the Election Commission in this
reference to the qualifying date and shall
behalf, amend, transpose or delete the entry
come into force immediately upon its final
after proper verification of facts in such manner
publication in accordance with the rules
as may be prescribed.
made under this Act.
• The said electoral roll Before taking any action on any ground
shall be revised in the prescribed manner by mentioned above, the electoral registration
reference to the qualifying date officer shall give the person concerned a
o before each general election to the reasonable opportunity of being heard in
House of the People or to the respect of the action proposed to be taken in
Legislative Assembly of a State; and relation to him.
o before each bye-election to fill a
Section 23. Inclusion of names in electoral
casual vacancy in a seat allotted to
rolls.
the constituency; and
Any person whose name is not included in the
electoral roll of a constituency may apply to the
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electoral registration officer for the inclusion of elected members of the Legislative
his name in that roll. Assembly constituted for that territory
under the Jammu and Kashmir
No amendment, transposition or deletion of any
Reorganization Act, 2019.
entry shall be made under section 22 and no
direction for the inclusion of a name in the Section 27G. Termination of membership of
electoral roll of a constituency shall be given electoral college for certain disqualifications.
under this section, after the last date for making
If a person who is a member of an electoral
nominations for an election in that constituency
college becomes subject to any disqualification
or in the parliamentary constituency within
for membership of Parliament under the
which that constituency is comprised and
provisions of any law relating to corrupt and
before the completion of that election.
illegal practices and other offences in
Section 24. Appeals. connection with elections to Parliament, he shall
thereupon cease to be such member of the
An appeal shall lie within such time and in such
electoral college.
manner as may be prescribed
Section 27H. Manner of filling of seats in the
• to the district magistrate or additional
Council of States allotted to Union territories.
district magistrate or executive magistrate
or district collector or an officer of The seat or seats in the Council of States allotted
equivalent rank, from any order of the to any Union territory in the Fourth Schedule to
electoral registration officer under section the Constitution shall be filled by a person or
22 or section 23. persons elected by the members of the electoral
• to the chief electoral officer, from any order college for that territory in accordance with the
of the district magistrate or the additional system of proportional representation by
district magistrate under above clause. means of the single transferable vote.

Section 25. Fee for applications and appeals Section 27J. Power of electoral colleges to
elect notwithstanding vacancies therein.
Every application under section 22 or section 23
and every appeal under section 24 shall be No election by the members of an electoral
accompanied by the prescribed fee which shall, college under this Act shall be called in question
in no case, be refunded. on the ground merely of the existence of any
vacancy in the membership of such college.
Part IVA: Manner of Filling Seats in the
Council of States to be filled by Part V: General
Representatives of Union Territories Section 28. Power to make rules.
Section 27A. Constitution of electoral colleges
• The Central Government may, after
for the filling of seats in the Council of States
consulting the Election Commission, make
allotted to Union territories.
rules for carrying out the purposes of this
• The electoral college for the Union territory Act.
of Delhi shall consist of the elected members • Such rules may provide for all or any of the
of the Legislative Assembly constituted for following matters, namely:
that territory under the Government of o the determination of ordinary
National Capital Territory of Delhi Act, 1991. residence under 20;
• The electoral college for the Union territory o the particulars to be entered in the
of 13 Pondicherry shall consist of the elected electoral rolls;
members of the Legislative Assembly o the final publication of electoral rolls;
constituted for that territory under the o the revision and correction of
Government of Union Territories Act, 1963. electoral roll and inclusion of names
• The electoral college of the Union territory therein;
of Jammu and Kashmir shall consist of the
447
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o the procedure for proper verification any decision given by any authority
of facts for amending, transposing or appointed under this Act for the
deleting any entry in the electoral revision of any such roll.
rolls, under section 22;
Section 31. Making false declarations.
o the procedure for proper verification
of facts for inclusion of or striking off, • If any person makes in connection with—
names in the electoral rolls, under o the preparation, revision or
section 23; correction of an electoral roll, or
o any other matter required to be o the inclusion or exclusion of any
prescribed by this Act. entry in or from an electoral roll,
• Every rule made by the Central Government
a statement or declaration in writing which is
under this Act shall be laid, as soon as may
false and which he either knows or believes to
be after it is made, before each House of
be false or does not believe to be true, he shall
Parliament, while it is in session, for a total
be punishable with imprisonment for a term
period of thirty days which may be
which may extend to one year, or with fine, or
comprised in one session or in two or more
with both.
successive sessions, and if, before the expiry
of the session immediately following the Section 32. Breach of official duty in
session or the successive sessions, both connection with the preparation, etc., of
Houses agree in making any modification in electoral rolls
the rule or both Houses agree that the rule
should not be made, the rule shall thereafter • If any electoral registration officer, assistant
have effect only in such modified form or be electoral registration officer or other person
of no effect, as the case may be. required by or under this Act to perform any
official duty in connection with the
Section 29. Staff of local authorities to be preparation, revision or correction of an
made available. electoral roll or the inclusion or exclusion of
Every local authority in a State shall, when so any entry in or from that roll, is without
requested by the chief electoral officer of the reasonable cause, guilty of any act or
State, make available to any electoral omission in breach of such official duty, he
registration officer such staff as may be shall be punishable with imprisonment for a
necessary for the performance of any duties in term which shall not be less than three
connection with the preparation and revision of months but which may extend to two years
electoral rolls. and with fine.
• No suit or other legal proceeding shall lie
Section 30. Jurisdiction of civil courts barred. against any such officer or other person for
damages in respect of any such act or
• No civil court shall have jurisdiction—
omission as aforesaid.
o to entertain or adjudicate upon any
• No court shall take cognizance of any offence
question whether any person is or is
not entitled to be registered in an punishable under above sub-section unless
electoral roll for a constituency; or there is a complaint made by order of, or
o to question the legality of any action under authority from, the Election
taken by or under the authority of an Commission or the Chief Electoral Officer of
electoral registration officer, or of the State concerned.

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