UNIT- 1

Executive Power and its extent- “The executive may be deemed as the authority within the
state which administers the law, carries on the business of the government and maintains order
within and security from without the state”. Executive power in modern state has been grouped
by political writers under the following headings:
● Administrative powers: the execution of the laws and the administration of the government.
● Diplomatic powers: the conduct of foreign affairs
● Military powers: the organization of the armed forces and conduct of war
● Legislative Powers: Summoning and prorogation of the legislature, issuing ordinances, etc.
● Judicial powers: granting pardons, reprieves, to convicted persons.

Article 73: Extent of executive power of the legislation- The executive power of the union
extends to matters with respect to which Parliament has the power to make laws to the exercise
of such rights, authority, and jurisdiction as are exercisable by the government of India by virtue
of any treaty on agreement. Such executive power, however, does not extend in any state to
matters with respect to which the legislature of the state also has the power to make law. Union
has exclusive rights to exercise executive powers for:
● Administration of laws passed by the parliament under its exclusive powers.
● Exercise of its treaty powers.

While the executive authority in regard to matters in the concurrent list is ordinarily left to the
states, Parliament is entitled to provide that in exceptional cases, the executive power of the
union shall also extend to these subjects.

President (Article 52-62, 73) Introduction- President is the most important executive officer in
the constitution and the supreme executive authority of the union. Head of the state but not of the
executive, he represents the nation but it is not its ruler but a symbol. Article 52 provides that
there shall be a President of India. Executive Power of the union is vested in him and is exercised
by him either directly or through officer(s) subordinate to him. Article 53- President is the
supreme commander of the armed forces.

Election of President (Art. 54-55, 58-59 and 71)

Procedure:-
Article 54: President is to be elected by members of an electoral college consisting of:-
● The elected members of both houses of parliament
● Elected members of the legislative assemblies of the state
Article 55: To ensure uniformity in the scale of representation of different states, the number of
votes which each elected member of Parliament and of the legislative assembly gets is
determined in the following manner
● Each member of the Legislative assembly has as many votes as there are multiples of 1000 in
the quotient obtained by dividing the population of the state by the total number of elected
members
● Value of the vote of MLA = Total Population of the State/Total number of elected members in
the state assembly x 1/1000
● If after taking the said multiple, the remainder is not less than 500, then the vote of each
member is to be increased by one
● Each elected member of either house of parliament has such number of votes as may be
obtained by dividing the total number of votes assigned to the legislative assemblies of the states
by the total number of elected members of both houses of parliament, any fraction exceeding half
being counted as one
● Value of the vote of MP = Total value of votes of all MLAs of all states/Total number of
elected members of the Parliament
● Population of state under Article 55 will be in reference to the population ascertained at the
last census of which figures are published but it is also provided that this shall be a reference to
the 1971 census until the figures of the first census taken after the year 2026 have been
published.​

Article 55 (3): election is to be held in accordance with the system of proportional representation
by means of a single transferable vote-
● Election held by general constituencies. All the candidates who compete for the seat allotted to
a constituency have their names printed on one ballot paper.
● Each elector has only one vote in the sense that he will be capable of electing one candidate
only.
● The vote will not be wasted in case the candidate whom he wishes to elect has not more than
the required number of votes, called the quota. The voter is required to indicate his first, second,
third, etc preference by placing figures 1,2,3 etc against the candidate
● At the time of the first count, only the first preference votes of all the candidates are counted
and the candidate getting an absolute majority of the first preference vote is declared to be
elected.
● But if there is no absolute majority of first preference votes in favor of any candidate, a second
count is resorted to. At the stage of 2nd count, the candidate getting the minimum number of first
preference votes is eliminated and the votes from such ballots are transferred to the candidate
according to the preferences.

Qualifications: Article 58- Article 58 talks about the eligibility of a person to become President
of India. It says that a person is eligible for election as President if he:
● is a citizen of India;
● has completed the age of thirty-five years;
● is qualified for election as a member of the House of the People.

A person can be disqualified for election as President if he holds any office of profit under:-
● the Union of India or;
● the Government of any State or;
● under any local or other authority subject to the control of any Government of India.

Impeachment: Art 61 and 361 =(1):-

Art 361(1): The President can be impeached only for violation of the constitution and nothing
else.
3 steps:-
● Charge must be first be preferred by either house of Parliament
● Proposals to prefer such a charge must be contained in a resolution which has been moved
after at least 14 day’s notice in writing, signed by no less than 1/4th of the total members of the
house.
● Resolution has to be passed by a majority of not less than 2/3rd of the total membership of the
house.
When a charge has been referred by either house, the other house must investigate the charge and
the president has the right to appear and to be represented at such investigation. The president’s
conduct can be brought under review by any court tribunal, or body appointed or designated by
the house of Parliament for investigation of charge under 61 (361(1)). If due to the result of such
investigation, a resolution is passed by the investigating house of majority of not less than 2/3rd
of the total membership of the house, declaring the charges to be sustained, such a resolution will
have the effect of removing the president from his office as from the date on which the resolution
was passed.

Powers of President

Executive Powers: Article 74-77, 124, 148, 155-56. 217, 264, 280, 299, 316, 324, 338, 344
● Article 77(1): All executive action of the Government of India is to be expressed to be taken in
the name of the President.
● Article 77(2): All orders and other instruments made and executive in the name of the
President are to be authenticated in such manner as may be specified by him and the validity of
an order or instrument which is so authenticated cannot be called into question on the ground that
it is not an order or instrument made or executed by him.

● President has the power to appoint-

○ Prime Minister and the council of ministers: Article 74
○ Attorney General: Article 76
○ Comptroller and Auditor General (CAG) of India: Art 148
○ Judges of the SC: Article 124
○ Judges of the High Courts of states: Article 217
○ Governor of a state: Article 155

● The President is the appointing authority for the states and also has the power to dismiss a
governor who has violated the constitution in their acts.

Interstate council: Article 263

○ Union Public Service Commission and a joint commission for a group of states : Article 316
○ Finance Commission: Article 280
○ Election Commissioner: Article 280

Military Powers (Art. 53 (2)- He is the Supreme Commander of the Indian Armed Forces.
However, article 53 also states that the exercise of the military power by the president is to be
regulated by law. Parliament has the right to make laws for the raising, maintenance, control and
employment of defense forces. The Indian President cannot declare war or employ forces
without or in anticipation of the sanction of the Parliament.

Legislative Powers (Art. 3, 85-87, 112, 115, 117, 124, 151, 247, 338)- The President has the
power to summon, prorogue and dissolve the Parliament under article 85
● When the house of the parliament is prorogued, it means that the session of the house has
been brought to an end.
● Adjournment means an interruption in the sitting of the house in the same session.
● Lok Laksha can be dissolved (meaning that its life has come to an end and fresh elections
would have to be held). Rajya Sabha is not subject to dissolution. President has the right address
and sends messages under article 86 and to make an opening addressed under article 87.
President has the power to cause certain reports and statements to be laid before the parliament
so it may have the opportunity to take action upon:-
● Annual Financial Statement: Art. 112
● Report of CAG with regards to accounts of Union Govt.: Art. 151

Power of sectioning the introduction of certain legislative measures such as alteration of State
boundaries (Art. 3) and Money Bill (Art. 117).

Ordinance making power of the President: Article 123- Article 123 talks about the presidential
powers to promulgate ordinances. An ordinance can be promulgated if:
● neither of the House of the Parliament is in session;
● and the President feels a need for immediate action.
The ordinance which is promulgated by the President will have the same effect as that of an act
or law of the Parliament. The essential conditions to be met by an ordinance are:
● It shall be presented before both the Houses of Parliament for passing when it comes to the
session;
● The ordinance shall cease to operate six weeks after the date of reassembling of the parliament;
● The ordinance may also expire if the resolutions disapproving it are passed by both the Houses
of Parliament;
● It can be withdrawn at any time by the President;
● The ordinance must be in consonance to the Constitution of India else it shall be declared
Void.

Veto types :-
● Absolute: The power of the President to withhold the assent to the bill is termed as his
absolute veto. Used in 2 cases. When the bill passed by the Parliament is a Private Member Bill.
When the cabinet resigns before the President could give his assent to the bill.
● Suspensive- The power of the President to return the bill to the Parliament with or without
consideration is called the suspensive veto- Article 111 . If the Parliament resends the bill with or
without amendment to the Indian President, he has to approve the bill without using any of his
veto powers. His suspensive veto can be overridden by the repassage of the bill by the Indian
Parliament.
● Pocket: The power of the President to not act upon the bill is termed as a pocket veto. The bill
is kept pending by the President for an indefinite period when he exercises his pocket veto. He
neither rejects the bill nor returns the bill for reconsideration.

Judicial Powers (Article 72 and 143)- Article 72: President has the power to grant pardons,
reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of
any person convicted of any crime. In all cases where it is by a court martial. Where the
punishment sentence for offense against any law relating to a matter to which the executive
power of the union extends. Where the sentence is a sentence of death
Types:
● Pardon may be full, limited, or conditional: It removes both the sentence and the conviction
and completely absolves the convict from all sentences, punishments and disqualifications.
● Reprieve: refers to the stay of execution of a sentence or enforcement of a penalty. When a
reprieve is granted, the execution is suspended.
● Remission: Reduces the quantum of a sentence without changing its character, as when
rigorous imprisonment for 1 year is reduced to one of 6 months
● Commutation: Change to character of sentence to a lighter penalty of different form, eg
commutation of death sentenced to life in prison.
Article 143: Power to consult the Supreme Court:- If at any time, it appears to the president that
a question of law or fact has arisen, or likely to arise, which is of such a nature of such public
importance that it is expedient to obtain the opinion of the SC upon it, he may refer the question
to that court for consideration and that court may, aftering such hearing as it thinks fit, report to
the president its opinion theron. The President may also refer to the SC any dispute arising out of
any treaty, agreement, engagement, sanad or other similar instrument executed before the
commencement of the constitution which continue to be in force.

Emergency Powers- Article 352 of the Constitution of India grants President, three kinds of
emergency powers as well:
● When a National Emergency is declared in case of external aggression or internal armed
rebellion, the President holds the powers to declare a state of emergency. Thus the President’s
rule gets established in the country. However, the prime minister and the Council of Ministers
must recommend such an emergency;
● When there exists a constitutional or law and order breakdown situation in a state, the
President may declare a state of emergency in such cases. The state would then come under
Governor’s rule;
● Whenever the financial stability of the nation or country is seriously affected, the President has
the right to intervene and direct the state to check and maintain public expenditure.

CASE LAWS:-
Harbans Singh vs State of U.P. & Others,1982:
● By a common judgment the petitioner and the two other accused (JS and KS) were convicted
and sentenced to death for the murder of four persons. The High Court affirmed their conviction
and sentence.
● The special leave petition filed by JS was dismissed and he was executed. The sentence of
death passed on KS was commuted by this Court into imprisonment for life.
● The petitioner's ('HS's) special leave petition and later his review petition were dismissed by
this Court and his petition to the President of India for commutation of death sentence was
dismissed, whereupon he filed the present petition.
● HELD : The SCI expressly prohibits separate execution of convicts of a joint crime. In this
case, one had got his punishment reduced to life term, another got a stay on his execution, and a
third swung unaware of all these fluctuations of fortune faced by his fellow- convicts.
● To prevent such injustice happening again, the Supreme Court laid it down that all the
death-sentenced convicts in a case will have to be executed together. In the interest of comity
between the powers of this court and the powers of the President of India,” the judges
respectfully recommended to the President that he “may be so good as to exercise his power
under Article 72 of the Constitution to commute the death sentence imposed upon the petitioner
into imprisonment for life.” They did so because the President of India has already considered
the mercy petition of the petitioner once and has rejected it.
We, therefore, recommend that for reasons aforesaid, which could not have been before the
President of India when he rejected the mercy petition, he may commute the death sentence
imposed upon the petitioner.”
● Needless to say, the President obliged, and Harbans Singh lived.

K.M Nanavati v. State of Bombay

● Supreme Court - held that the application made to the governor for pardon and the SLP cannot
proceed parallelly. If SLP is filed, then power of governor in such a case shall be ceased. The
Supreme Court held that the facts of the case don't attract the provisions of Exception 1.to sec.
300 of the Indian Penal Court. And the accused is guilty for the murder under Sec.302 of the
Indian Penal Code and sentence of life imprisonment on accused passed by High Court is correct
and also, held that there are no grounds for interference. And the Appeal was dismissed by the
Supreme Court.
● K.M Nanavati Case: Governor’s order was constitutionally invalid from the time SC was
seized of the matter- the Supreme Court held that the Governor of a State can pardon prisoners,
including death row ones, even before they have served a minimum of 14 years of a prison
sentence [ St of Haryana v. Raj Kumar @ Bittu 2021]
Kehar Singh v. UOI
● Kehar Singh was convicted of an offense under sections 120B and 302 of the Indian Penal
Code, in connection with the assassination of Indira Gandhi, who was the Prime Minister at the
time.
● He was convicted at the trial stage by the Additional Sessions Judge, and all his appeals to
higher authorities failed, by way of dismissals.
● On application to the President for the grant of pardon under Article 72, they pleaded that the
guilty verdict was erroneous, and it was a prayer for a plea of clemency.
● It was further urged that they be granted an opportunity of the oral hearing.
● On the question of whether judicial review extends to the order passed by the President, the
court was of the opinion that the order cannot be subjected to judicial review on its merits, except
within the strict limitations.
● Talking about the question of oral hearing being granted to the mercy petitioners, the Court
said that the matter lies entirely in the discretion of the President. When filing the petition, all the
relevant documents must be submitted, and if the President sees fit, he can call for an oral
hearing.
Epuru Sudhakar vs Govt of Andhra Pradesh
●​ The supreme court held that the pardoning powers of the president under Article 72 and
the governors under article 161 is subject to judicial review. Pardoning power cannot be
exercised on the basis of caste or political reasons.
●​ In the instant case a Congress Worker was convicted for murder of a worker of the telugu
Desam.
●​ He was awarded the death sentence by the court. He was granted pardon by the then
governor Mr. Shinde, who was minister of power under the U.P.A. Government.
●​ The murdered person’s son had challenged the constitutional validity of theGovernor’
pardoning power in the High Court of Andhra Pradesh.
●​ HC quashed the order of pardoning of the governor on the ground that it was exercised on
the political ground.
●​ The Govt of A.P filed an appeal, the supreme court however upheld the judgement of the
high court: if the pardoning power has been exercised on the ground of political reasons,
caste, and religious considerations it would amount to violation of the Constitution and
the court will examine it validly.

Yakub Abdul Rajak Memon vs State of Maharastra

●​ In 2015, the Supreme Court held an extraordinary 90-minute pre-dawn hearing for Yakub
Memon’s final plea but ruled that further delay was unnecessary. His execution was
deemed inevitable, and he was hanged the next day on his birthday.
●​ Memon, a chartered accountant, was sentenced to death in 2007 for financing and aiding
the 1993 Mumbai blasts, which killed 257 and injured over 700. The Supreme Court
upheld his sentence in 2013, while others convicted had their penalties reduced to life
imprisonment.
●​ A key point of contention was the President’s rejection of Memon’s fresh mercy plea.
The Supreme Court defended the decision, stating that the President had duly considered
all relevant factors and that delaying the execution further would be unjust.
●​ However, counterarguments questioned how the President could have dismissed the plea
so quickly and why the nearest legal center was not notified immediately, as required by
protocol. Critics argued that Memon’s right to life extended until his last breath and that
he was denied a fair chance to challenge the President’s decision.

DC Wadhwa v. State of Bihar: The issue of frequent promulgation of ordinances was brought
up in the Supreme Court through a writ petition. The petition was regarding the promulgation of
256 ordinances between 1967 and 1981 in Bihar. This included 11 ordinances that were kept
alive for more than 10 years and famously dubbed as ordinance raj. The Supreme Court held that
the legislative power of the executive to promulgate ordinances is to be used in exceptional
circumstances and not as a substitute for the law-making power of the legislature.
R.K Garg v. UOI:
● If a Parliament has the power to pass legislation or amend tax laws, the President may do so
similarly by issuing an ordinance u/A 123
● Article 14 does not forbid reasonable classification of persons, objects and transactions by the
Legislature for the purpose of attaining specific ends. What is necessary in order to pass the test
of permissible classification under Article 14 is that the classification must not be “arbitrary,
artificial or evasive” but must be based on some real and substantial distinction bearing a just and
reasonable relation to the object sought to be achieved by the Legislature.
● Veto: The President has the power to send a bill back to parliament unless it is a money bill or
an amendment bill.

Kuldip Nayar v. UOI (2003)​

The Representation of People’s Act was amended in 2003. It brought about the following
changes to the Act: -
1) It is now not compulsory to contest from the same state that one belongs to. An individual can
contest candidate for Rajya Sabha from a different state and for a different state. The voting
system was a closed ballot till 2003, but the amendment changed it to an open ballot voting
system. This was done because it was obvious that MLAs of specific parties would vote for
candidates representing their parties, and hence there was no need for secrecy.
2) The petitioner argued that the 1st change violated the federal nature of the states in essence,
the candidates that belong to the states they are contesting from, would work better towards the
functioning of that state. The petitioner stated that the 2nd change violated the secrecy of an
individual. The SC dismissed the petition on both the grounds.​

Shamsher Singh v. State of Punjab and Anr (1974)- ​

Shamsher SIngh was a Junior judge in the Punjab Judiciary. The exam for judiciary is conducted
by the state public service commission. Appointment happens in the name of the Governor. Both
of them were on their probation. They were terminated and the letter was issued in the name of
the governor but technically the governor was not consulted. The SC reinstated both of them
back in service. And the governor, even though is a constitutional head, has to be kept in the
loop.​
Rameshwar Prasad (VI) vs Union of India
●​ Held that the presidential proclamation dissolving the state assembly was unconstitutional
and based on extraneous and irrelevant grounds: held the governor misled the center in
recommending dissolution of the state assembly and the union of ministers should have
verified the truth.
●​ The Governor acted in undue haste in sending his report containing fanciful assumptions
which could be destructive to democracy. The drastic and extreme action under Article
356 can't be justified on mere personal opinion of the Governor.
●​ Governor claimed that he recommended dissolution on grounds of a media report that a
political party was trying to gain a majority by engineering defections and was a serious
threat to democracy.
●​ Court on this held: this was a matter solvable under 10th schedule and not relevant at the
time the governor had to send a report to center, and is to be deemed as an
unconstitutional act. The governor had to annex relevant material substantiating his
report, and the absence of which to be treated as the personal opinion of the Governor.​
​
​
​
​
 UNIT- 2​

Union Executive (Nature)- The smaller body of ministers who form the advisory council of the
President, with the Prime Minister as its head, and by whom the general policy of the executive,
and also the legislative measures introduced by the Government in Parliament, is decided is
known as the council of ministers. It is their duty to aid and to advise the President in the
exercise of his functions.​

Relation between Council and President- Before the 42nd amendment, nowhere was it laid
down in the constitution that the President shall accept the advice of his minister. The conclusion
was that the President was not a mere figure-head. In normal day-to-day administration, he
would act in accordance with council's advice but in extraordinary circumstances, the president
may not follow the advice if it was in the national interest. But after the 42nd amendment, the
President was forced to be bound by the aid and advice of the council of ministers. The 44th
amendment also inserted changes that provided that the President may require the council of
ministers to reconsider their advice, either generally or otherwise. When after the
reconsideration, advice is tendered to him, the President must act in accordance with such
advice.

Council of Ministers
● Article 74 (1): There shall be a Council of Ministers with the Prime Minister at the head to aid
and advise the President who shall, in the exercise of his functions, act in accordance with such
advice: Provided that the President may require the Council of Ministers to reconsider such
advice, either generally or otherwise, and the President shall act in accordance with the advice
tendered after such reconsideration.
● Article 74 (2): Advice tendered by the ministers to the President cannot be inquired into by any
court.
● 91st amendment 2003: Total number of ministers in the Council of Ministers, Including PM,
cannot exceed 15% of the total number of members of Lok Sabha
● The Prime Minister is appointed by the President and other ministers are appointed on the
advice of the Prime Minister.
● All of them hold office at the pleasure of the President and are collectively responsible to the
House of the People (Article 75 (1-3)). The Doctrine of collective responsibility of ministers
connotes that members of the council are jointly and severally responsible to the House of the
People for every legislative and executive act of the Government as also for every legislative
measure introduced in Parliament with the authority of the Government. If ministers lose the
confidence of the house they must resign.​
​
​
Nature of ministerial responsibility:-
Responsibility to the President- Though in theory the President appoints the PM at his discretion
and the rest of the council on the PM’s advice, and all of the members serve at the president’s
pleasure, in reality the President cannot remove any of them arbitrarily. This is because if the
president takes such an action, the entire ministry can resign and the president will be forced to
find a new council in a lok sabha controlled by a majority of the old one.​

Prime Minister-
● Article 75: Prime Minister is appointed by the President and holds office at the pleasure of the
president.
● Article 78: Duties- To communicate to the President, all decisions of the council of ministers
relating to the administration of the affairs of the Union and proposals for legislation. To furnish
such information relating to the administration of the affairs of the Union and proposals for
legislation, as the President may call for. If the president so requires, to submit for the
consideration of the council of ministers, any matter on which a decision has been taken by the
minister but not been considered by the council.
● Described as the keystone of the cabinet arch. Primus inter pares, first among equals. However
in reality the Prime Minister is the more powerful and has no equals. He recommends the
appointment of other members of council to the President and their dismissal. A minister who
does not agree with the PM has to resign. The Prime Minister can advise the President to
dissolve the Lok Sabha.​

Attorney General for India (76, 88 and 124):-

● Qualifications (Article 74 (1) and 124)- The qualifications are same as those of a Supreme
Court Judge. He must be a citizen of India. Must have been a judge of the High Court for at least
5 years or two or more such courts in succession or. Must be an advocate of HC for ten years or
two or more such courts in succession. He is, in the opinion of the President, a distinguished
jurist.
● Holds office at the pleasure of the president and receives remuneration as the President may
determine (74(4))
● Duties: Art. 76 (2)- To give advice to the Government of India upon such legal matters and to
perform such other duties of a legal character, as may be referred or assigned to him by the
President and to discharge the functions conferred to him by Constitution. Essentially advise the
govt on legal matters, appear on health of govt in cases before SC and HCs, and represent govt in
any reference made by president under art. 143 to SC.
● Rights: Art. 76 (3) and 88- Has the right of audience in all courts in India [76(3)]. And
otherwise to take part in the proceedings of either house, any joint sitting of the houses or any
committee of Parliament of which he may be named a member but, it is not by the virtue of this
article. Entitled to vote (Art. 88)
Maganbhai Ishwarbhai Patel vs UOI
●​ The Hon’ble Supreme Court ruled that the implementation of the tribunal's award, which
demarcated the boundary between India and Pakistan, did not amount to a cession of
Indian territory. The Union Executive, under Article 73, has the power to implement
treaties and agreements. However, if such implementation leads to the cession of Indian
territory, infringes upon fundamental rights, or modifies any law in force, it requires a
valid law enacted by Parliament under Article 253 and relevant entries in List I.
●​ In this case, the court observed that the awarded territories were neither de jure nor de
facto Indian territories. Since the boundary was uncertain due to the unstable nature of
the land and India did not exercise effective administrative control, the tribunal's decision
was merely a demarcation rather than a cession. Therefore, the implementation of the
award did not require a constitutional amendment.
●​ The court reaffirmed previous rulings, particularly in the Berubari case, where the cession
of Indian territory required a constitutional amendment. However, in cases where
territories were not legally part of India but under temporary control, their transfer did not
require such an amendment. Since the awarded areas were not part of India, the
petitioners' claims under Article 19 regarding freedom of movement, residence, and
property rights were not applicable.
●​ Thus, the Supreme Court upheld the power of the Union Executive to implement treaties
and agreements under Article 73, clarifying that the demarcation of boundaries without
the cession of Indian territory does not necessitate parliamentary legislation.
 UNIT- 3

State Executive: Governor ( Appointment and terms and condition of office)-

● Art 155: The governor is appointed by the president by warrant under his hand and seal.
● Art. 156: holds office at the pleasure of the President. He holds office for 5 years or provided
that the governor, notwithstanding the expiration of his term, continues to hold office until his
successor enters office.
● Article 157: A person is not eligible to be appointed as governor unless he is a citizen of India
and has completed the age of thirty-five.
Article 158: Conditions
● Such a person cannot be a member of either houses of parliament or house/s of the legislature
of any state. If a member of either house of Parliament or state legislature is appointed, he is
deemed to have vacated his seat in that house on the date on which he enters office.
● Governors cannot hold any other office of profit.

Governors may be impeached- The Governor’s tenure is generally five years. However, it may
be terminated sooner if:
1. Dismissal by the President, who occupies an office at the leisure of the President (typically on
the suggestion of the country’s prime minister). The Procedure for removing a governor in the
Indian constitution office without cause is impossible. However, it is the President’s
responsibility to remove a Governor whose actions are illegal and malaise by the courts​

2. The Governor’s resignation ​

How can the Governor be Removed?- Under Article 155 and 156 of the Constitution, a Governor
is appointed by the President and holds office “during the pleasure of the President”.
● If this pleasure is withdrawn before completion of the five-year term, the Governor has to
step down.
As the President works on the aid and advice of the Prime Minister and the council of ministers,
in effect, the Governor can be appointed and removed by the central government.​

Discretionary Power of Governor- A governor can exercise the Discretionary Power of the
Governor whenever they see fit, without the court’s interference. In India, there are several
Governor’s Discretionary Powers. The Discretionary Powers of the Governor can be offered in
two major ways.
● The first way is by offering discretionary power to a person. It can also be offered to a body of
persons in India.
● The second way of offering discretionary power in India is based upon convention. If
discretionary power has been conferred, it is prone to outside intervention. The Discretionary
Power of Governors in India falls under two main categories as follows:
● Constitutional discretion is mentioned in the Indian Constitution.
● Situational discretion depends on the socio-political situation of a state. ​
Constitutional Discretion of Governor-
● A governor can reserve a bill for the consideration of the president.
● Governors can recommend the decision of the president’s rule in any state.
● A governor can ask the CM of the state for information regarding administrative/legislative
matters.
● If a governor gets an additional charge for a neighboring UT, he can exercise the Discretionary
Power of the Governor.
● For mineral exploration, the governments of Assam, Meghalaya, Tripura, and Mizoram have to
pay a royalty to the Tribal District Council. The governor is responsible for determining the
amount of royalty to be paid.
Situational Discretion of Governor-
● The governor plays a role in deciding the CM of the state when no party has won the majority
votes. The same goes when a state CM dies unexpectedly with no successor.
● When council ministers fail to show the confidence of the legislative assembly, a governor can
dismiss them.
● Following the president’s directives, governors across India must perform several duties.
● A governor has to consult the CM and his council of ministers before acting on the president’s
directives.
● President’s directives for governors in many states like Gujarat, Maharashtra, Assam, Manipur,
and others.​

Power to grant pardons, remission, etc (Article 161)-The governor has the power to grant
pardons, reprieves, respites or remissions of punishment, or to suspend. Remit or commute the
sentence of any person convicted of any offense against any law relating to a matter to which the
executive power of the state extends. The President's power under 72 is wider than that of
governors.​

Ordinance Making Power Of Governor- Article 213 states that the Governor of the state may
issue ordinances when the state legislative assembly (or either of the two Houses in states with
bicameral legislatures) is not in session. He can only promulgate an ordinance when the
legislative assembly (in the event of a unicameral legislature) is not in session, or when both
Houses of the state legislature are not in session, or when one of the two Houses of the state
legislature is not in session. The final section suggests that the governor may issue an ordinance
while only one House (in the event of a bicameral legislature) is in session since a law can be
approved.​
​
​
​
Misuse of Ordinance making by both Union and State executive:
● The number of Ordinances issued by the centre has increased from an average of 7.1 per year
in the 1950s to 15 in 2020.
● States have also been using the ordinance route to enact laws. For example, in 2020, Kerala
issued 81 ordinances, while Karnataka issued 24 and Maharashtra 21.
● Further re-promulgation of Ordinance by both centre and state is also increasing. For instance,
The Indian Medical Council Amendment Ordinance by the centre and Kerala University of
Digital Sciences, Innovation and Technology by Kerala are two recent examples.
● The misuse of ordinance powers is just one way in which the quality of democracy in India has
been eroded, a phenomenon also known as ‘democratic backsliding’. Nancy Bermeo observes
that actions that directly destabilize democracy -- like coup d’etat or election fraud -- have
declined in popularity since the Cold War; instead, they have been replaced with more gradual
forms of destabilization, which occur when a democratically elected executive uses legal
channels to enact institutional changes.​

CASE LAWS:-
BP Singhal vs Union of India (2010): The Supreme Court elaborated on the pleasure doctrine.
It upheld that “no limitations or restrictions are placed on the ‘at pleasure’ doctrine”, but that
“does not dispense with the need for a cause for withdrawal of the pleasure”. The Bench held
that the court will presume that the President had “compelling and valid” reasons for the removal
but if a sacked Governor comes to the court, the Centre will have to justify its decision. Note:
Goa, Gujarat, Haryana and UP’s governor’s were replaced. Citing the doctrine of pleasure of the
President the governor’s of these states were replaced. This was a PIL, and a random person
challenged this. It is not normally subject to judicial review. In the case of appointment and
removal of the governor, the doctrine is unlimited. Where the constitution itself does not ask any
questions and the power of the President is unlimited in this case, then judicial review is limited.
The SC created guidelines wherein the doctrine of pleasure of the President was limited. Only
when it can be shown that the intention of removal of the governor was malafide, then and only
then it will be subjected to review.​

Nabam Rebia & Ors v. Dy.Speaker, Arunachal Pradesh-

● In November 2015, a constitutional crisis arose in Arunachal Pradesh when 21 Congress
MLAs rebelled against Chief Minister Nabam Tuki. On November 19th 2015, 13 members of the
Assembly—11 BJP MLAs and 2 Independent MLAs— sent a letter to the Governor to
communicate their displeasure with the Speaker and the Government.
● Furthermore, 21 Congress MLAs also refused to attend party meetings citing mismanagement
by the Chief Minister. They alleged that the Chief Minister had grossly misused funds and
indulged in wasteful expenditure.◦ The Governor acting without the advice of the Chief Minister,
advanced the Assembly session from January 14th 2016 to December 16th 2015 and listed the
removal of the Speaker on the legislative agenda.
● On December 15th 2015, the Speaker, Nabam Rebia, preemptively disqualified the rebel
MLAs on the grounds of defection before the Assembly could meet. On December 16th, 2015,
the resolution to remove Speaker Nabam Rebia was adopted.
● Speaker Rebia challenged this dismissal in the Gauhati High Court. The High Court on
January 5th, 2016 stayed the disqualification of Congress MLAs and dismissed the Speaker’s
plea. Subsequently, an appeal was filed before the Supreme Court and the matter was listed
before a 5-Judge Bench. While the matter was being argued before the Court, the Union
government dismissed the ruling State government and imposed President’s rule.
● Held : For the first time in its history, the Court effectively nullified the President’s rule and
restored the previous State government with Nabam Tuki as Chief Minister.
a. The Governor cannot employ his “discretion”, and should strictly abide by the “aid and
advice” of the Cabinet to summon the Assembly for a floor test.
b. The Governor can summon, prorogue and dissolve the House only on the aid and advice of the
Council of Ministers with the Chief Minister as the head. And not on his own.
c. Even the Constituent Assembly was wary of extending the Governor’s discretion. Though the
draft Constitution had vested the Governor with the discretion to summon and dissolve, it was
later omitted by the framers of the Constitution.
d. Article 163 of the Constitution does not give the Governor a “general discretionary power to
act against or without the advice of his Council of Ministers”.
e. Governor’s discretionary powers are limited to specified areas like giving assent or
withholding/referring a Bill to the President or appointment of a Chief Minister or dismissal of a
government which has lost of confidence but refuses to quit, etc. However, Chief Minister Tuki
was soon voted out of power in a floor test and the Court’s decision was reversed through
political means. Bifurcation of ministers - 60 = 47+11+2 MLA’s stopped attending party
meetings. 21 MLAs rebelled. They said that they don’t agree with the CM, he has mismanaged
the funds, and they don’t want him in power anymore. These MLAs now wrote to the governor,
that this government does not enjoy the power of the house anymore, and the CM was supposed
to resign, and the speaker was supposed to be replaced.​
- They were scheduled to meet in Jan 2016. The governor preponed the session to 16th Dec
2015.
- On 15/12/2015 Nebam Rebia, the speaker, declared that he was disqualifying 21+11 MLAs. He
stated that the governor could not prepone the session by his own discretion.
- These 32 MLAs held a session in a hall, voted and took a decision by majority that the CM and
speaker were supposed to be removed.​

Nebam Rebia moved to the Guwhati HC and the HC said that the meeting was not wrong. The
speaker moved to the SC. Was the decision of the governor to prepone the session right? And the
SC stated that the governor acted out of line because he had to take the aid and advice of the
council. The SC reinstated the government and the speaker back in session. The floor test took
place and then the government had to give up power.​
​

State of Gujarat v. R A Mehta (2013)- The case is about the appointment of a Lokayukta. The
function of Lokayukta is vigilance. Lokpal is at the central level, and Lokayukta is at the state
level. It is left to the states to decide how a lokayukta is appointed. The Anna Hazare movement
was done for the need of a lokpal.
- Gujarat had a Lokayukta Act in 1986. It was about corruption at the Central level. The CJ of
the state suggests the name, the CM and the council have to agree to the name, and then the
governor finally appoints the lokayukta.
- In 2002 a lokayukta resigned. Until 2006, there was no action taken to reappoint, and there was
a vacancy.
- The governor did not do anything for 3 more years, even though a name was provided by the
CJ. In 2009, a new governor came into picture Kamla Baniwal, and she was a congress
politician.
- Justice Vohra’s name was approved among 3 others by the CJ, but the governor did not agree,
and she referred the matter to the attorney general of India. The CJ was supposed to recommend
only 1 name not 4 names.
- Ultimately the CJ recommended the name of CJ Mehta. The governor now agreed to this name.
Now, the CM and his office were not in tune with this choice.
- The governor office issued a letter of appointment to CJ Mehta (he was anti-government,and 75
years old).
- Finally, the State of Gujarat challenged this appointment. The division bench heard the matter,
and there was a split verdict. They agreed that the appointment was fair. Next there was an
appeal in the SC. The SC stated that the governor acted out of line of her power and most of the
times the governor has to act on the aid and advice of the ministers. Technically the appointment
of the lokayukta was not unconstitutional, but the power of the governor was out of line.​
​
 UNIT- 4​

State Executive: Governor- As a real executive authority, the Chief Minister is called the head
of the government. He is assisted by his council of ministers who are a part of the state executive
along with the Governor and Advocate-General of State. Similar to the Prime Minister who is the
head of the government at the centre, the Chief Minister is the head of the government at the
state level.​

Who is called a Chief Minister?- He is the head of the state government. While the governor is
the nominal executive of the state government, the person who becomes the chief minister is the
real executive of the government. The real executive is called ‘de facto’ executive that means, ‘in
fact, whether by right or not.’​

How is a Chief Minister appointed?- Just like the Prime Minister, provisions of whose
appointment are not mentioned in the Indian Constitution, Chief Minister’s appointment
particulars are not mentioned in the Constitution. According to Article 164 in the Indian
Constitution, the Governor appoints the Chief Minister. However, the Governor cannot appoint
any random person as the Chief Minister but has to follow a provision. A leader of the party that
has got the majority share of votes in the assembly elections, is appointed as the Chief Minister
of the state.​

● When no party gets a majority in the elections, the governor exercises his own discretion and
appoints a Chief Minister accordingly.
● In a case where no party has won the majority votes, Governor appoints the member of the
largest party or one from the coalition (if occurs) as the Chief Minister and then he is
given 1 month time to prove confidence in the house.
● If the incumbent dies in office, the Governor at his own discretion can appoint a Chief
Minister; however, the ruling party nominates a member and the Governor usually appoints that
person as the Chief Minister. This person then has to prove confidence within a specified time.
● A person not belonging to either house (Legislative Assembly & Council) can also be
appointed as the Chief Minister, however, within six months of his tenure as a CM he should be
elected to either house without which he ceases to be a CM.
● The Chief Minister can belong to any house in the State Legislature.

What is the term of Chief Minister’s office?- The term of Chief Minister is not fixed and he
holds his office during the pleasure of the governor.
● Governor cannot remove him any time.
● Governor cannot even dismiss him till the time he enjoys the support of the majority of the
house.
● When CM loses his majority support, he has to resign and the Governor dismisses him then.​

What is the main function of the Chief Minister? The CM of the state performs functions in
relation to the different categories of people:
1. In relation to the Council of Ministers
2. In relation to the Governor
3. In relation to the State Legislature​

Other than that, he also performs the following functions:

1. He chairs the State Planning Board
2. He is a vice-chairperson of the concerned zonal council by rotation, holding that office for a
period of one year at a time
3. He is a member of Inter-State Council and National Development Council which are headed
by the Prime Minister.​

In Relation to the Council of Ministers- The Chief Minister is the head of the state council of
ministers. He performs the following functions:
1. He recommends to the governor on who to appoint as ministers
2. He designates or reshuffles the portfolios of the ministers
3. He can ask a minister to resign
4. Meeting of the council of ministers is headed by him
5. All activities of the ministers are guided and controlled by the Chief Minister
6. If he resigns, the entire council of ministers collapses.
Note: If the CM dies (or resigns), the council automatically dissolves.​

In Relation to the Governor- In relation to the governor, the Chief Minister performs the
following functions:
1. All the activities, decisions that are taken up by the council of ministers are communicated to
the governor by the chief minister
2. To report to the governor, information about the administrative affairs if and when asked by
the governor
3. If any minister has decided on any issue, the same has to be reported to the Governor by the
Chief Minister when the same has not been considered by the council.
4. He gives his advice to the governor for the appointment of the following persons:
1. Advocate-General
2. Chairman of state public service commission
3. The state election commission, etc.

In Relation to the State Legislature- He is the leader of the house and holding this position, he
performs the following functions:
1. Before a governor prorogues and summons the sessions of the state legislature, the Chief
Minister’s advice is a must
2. Legislative Assembly can be dissolved at any time on his recommendation to the governor
3. All government policies are announced by him on the floor of the house.​
​

Who is the State Council of Ministers?- The State Council of Ministers is similar to the Central
Council of Ministers. The state council is headed by the Chief Minister. The council comprises
ministers appointed by the governor on the recommendation of the CM.​
​

How are the Council of Ministers appointed?- They are appointed by the governor on the
advice of the CM. Governor also appoints a tribal affairs minister for the following states:
1. Chhattisgarh
2. Jharkhand
3. Madhya Pradesh
4. Odisha
Note: Bihar was also one of the states to have a tribal affairs minister, however, the 94th
Amendment Act 2006 freed Bihar from this obligation.​

Composition of Council of Ministers- The size of the council is not mentioned in the Indian
Constitution. The Chief Minister decides the size and the rank of the ministers as per the
requirement in the State Legislature. There are three categories of Council of Ministers:
1. Cabinet Ministers
2. Ministers of State
3. Deputy Ministers​

Collective Responsibility- The provision of collective responsibility is dealt with by Article 164.
The Article mentions that the council of ministers are collectively responsible to the state
legislature. This means that all the ministers own joint responsibility to the legislative assembly
for all their acts of omission and commission.

● When the legislative assembly passes a no-confidence motion against the council, all the
ministers of the council have to resign including those belonging to the Legislative Council too.
● The council of ministers can advise the governor to dissolve the legislative assembly on the
ground that the House does not represent the views of the electorate faithfully and call for fresh
elections. The governor may not oblige the council of ministers which has lost the confidence of
the legislative assembly.​

Articles related to the State Council of Ministers-

Articles Provision
163 - Council of Ministers to aid and advise Governor
164 - Other provisions as to Ministers
166 - Conduct of business of the Government of a State
167 - Duties of the Chief Minister as respects the furnishing of information to the Governor, etc.​
​
​
​
​
​

Advocate General:
● Article 165 (1): The advocate general is appointed by the Governor. He holds office at the
pleasure of the governor and receives such remuneration as the governor may determine.
● Article 217- Qualifications- His qualifications are the same as those of HC judges. Must be an
Indian citizen. Held judicial office in India for 10 years. Been a HC advocate for at least 10 years
● Article 165 (2)- Duties - The advocate general has to give advice to the Government of the
state upon such legal matters, and perform such other duties of legal character as may be referred
or assigned to him by the governor
● Article 177: Rights- Has the right to speak and take part in the proceedings of the legislative
assembly or the legislative council but is not entitled to vote. Under advocates act, enjoys the
position of being ex officio member of state bar council
● His office is not a political one, as indicated by article 165 and 177.​
​
 UNIT- 5, 6
Constitution of Parliament- Parliament is a sovereign body independent of any external
authority. It is different from the English Parliament as acts of Indian Parliament are subject to
judicial review whereas no act of the English Parliament can be challenged in courts due to
parliamentary supremacy.​

Article 79: There shall be a Parliament for the Union which shall consist of the President and two
Houses to be known respectively as the council of States and the House of the People.

a. Parliament of India= President + Lok Sabha + Rajya Sabha

Consequently, the law of the parliament means a law passed by the two houses followed by the
President’s assent, subject to provisions of the money bill.​

The Rajya Sabha- Rajya Sabha is the Upper House of the Indian Parliament. This house is
permanent in nature as it can never be dissolved. This is because every member elected to the
Rajya Sabha serves for a term of 6 years and one-third of members do retire biennially, while the
other members continue their tenure. It’s like an election in different batches. Retired members
are subject to re-election. This house consists of 250 members out of which, 238 members are
elected by means of a single transferable vote. 12 members are nominated by the President on
the advice of the council of ministers.​

The method of election of these members is listed in Article 80(1) of the Indian Constitution . It
says that the members would be elected by the elected members of respective state assemblies in
accordance with proportionate representation of every state. This provision thus reflects the
federal nature of the Council of States, where every state is represented proportionally.​

However, the number of members representing each state varies from 1 to as large as 31 (for
Uttar Pradesh). Article 84 of the Indian Constitution provides for the qualification to become a
member of Rajya Sabha, i.e. one must have the nationality of India, doesn’t hold any office of
profit and must have completed 30 years of age. Article 102 of the Indian Constitution provides
for conditions on which one can be disqualified from either of the houses. It says that one must
be disqualified as a member of the house if,
● he/she holds any office of profit;
● he/she is of unsound mind;
● he/she is discharged insolvent;
● he/she is not a citizen of India and has voluntarily accepted the nationality of other
nations;
● he/she is disqualified under any law made by the Parliament.​
Chairperson and Deputy Chairperson of Rajya Sabha- In Rajya Sabha, the Vice-President of
India presides over its sessions and is ex-officio chairperson of the house. However, to take care
of its day-to-day affairs, and to preside over the sessions in the absence of the Chairperson, i.e.
the Vice-President, a member of the house itself is chosen internally by the Rajya Sabha as
Deputy Chairperson of the house.​

The Lok Sabha- The provisions of Article 331 of the Indian Constitution provides for the
existence of the house of the people and shall consist of a maximum of 530 chosen members
from different states, not more than 20 members to be chosen from the Union Territories. If the
President feels that there is a lack of representation of the Anglo-Indian Community in
parliament he may nominate two members of the Anglo-Indian Community. Some seats are also
reserved for the Scheduled Caste and Scheduled tribes communities especially laid aside for
them all over the country. The representation is allocated to the states and the Union Territories
according to the Representation of the people Act passed by the Parliament of India in 1951. The
Lok Sabha, unless dissolved midway, continues its tenure for 5 years from the day of its first
meeting.​

Territorial Constituencies- As the members of the Lok Sabha are elected directly, it needs to
have a proper division of the country into smaller units. And for this purpose, India is divided
into small territorial constituencies. These constituencies are sorted out in such a way so that
each Indian state has an adequate share of members in the house and is proportional to its
population. To keep this division democratic, the constituencies are carved out in such a way so
that the ratio of the number of representatives and the population of that particular constituency
should remain the same across all the constituencies.​

Tenure of Lok Sabha-The members elected by Universal Adult Suffrage serve their offices for a
tenure of five years. However, if devoid of a popular majority, the government can fall and the
house can dissolve midway anytime before the completion of five years.​

Parliamentary Membership
Qualification for Membership of Parliament- Qualifications necessary for becoming a member of
parliament are provided in Article 84 of the Indian Constitution. Following are the qualifications:
● he/she should be a citizen of India.
● In the case of the Upper House,i.e. Rajya Sabha, he/she should have completed at least 30
years of age and for Lower House,i.e. Lok Sabha, he/she should have completed 25 years of age.
● he/she needs to comply with other such qualifications as prescribed in any law by the Indian
Parliament.​
Speaker
● Article 93 : The house of people shall choose 2 members of the house to be the speaker and
deputy speaker as may be, and as soon as the seat becomes vacant, choose the replacement
● Article 94 : Either the speaker or the deputy speaker is liable to vacate his office if he ceases to
be a member of the house. He may, at any time, by writing under his hand addressed, if such
member is speaker to deputy and vice versa, resign his office. He may be also removed from
office by a resolution of the house moved after 14 days’ notice passed by a majority of all the
members
● Impartiality of Speaker- Salary and allowances are charged on the consolidated fund- Article
112(3)(b) . He can be removed by resolution of the majority of the House, 94(c). He has no vote,
except in the case of a tie, Art. 101(1)
● Role:- Head of the LS & its representatives. He is guardian of powers & privileges of the
members of the house & its committees. He is principal spokesperson of the House and his
decisions in all Parliamentary matters are final.

● Duties- Maintains order and decorum of the LS. Final interpreter of Constitution, Rules of
Procedure, Conduct of Business of laws, parliamentary precedents. Adjourns or suspends the
house. Does not vote in the FIRST INSTANCE. Presides over the Joint Sitting of the houses–
summoned by the President. Can allow a “secret sitting” of the house. Endorses whether the bill
is MONEY BILL or not. Decides on disqualification of membership w.r.t Xth Sch.​

Disqualification on ground of defection- The need for an anti-defection law was felt in India
when in 1967, one legislator from Haryana, Gaya Lal, changed his party thrice in a single day.
Also, the General Elections of 1967 saw a great number of defections as around 150 MPs flitted
their political parties. However, an act tackling such problems was passed by Parliament in the
year 1985. With the 52nd amendment to the Indian Constitution, provisions regarding
disqualification of the basis of defection were inserted in the 10th schedule of the Indian
Constitution. As per the provisions, the members can be disqualified on the following grounds:
● When members of a political party don’t abide by his/her party leadership or voluntarily resign
from the party.
● When members don’t vote or refrain from voting according to his/her party whip.
● An independent member stands disqualified if he/she joins a political party.
● For nominated members, if he/she is not a member of any political party, he/she, if they want,
has to join a political party within 6 months of nomination or membership stands canceled.​

However, voluntarily giving up membership has quite a broader meaning. In the case of Ravi
Naik vs Union of India, giving up membership doesn’t necessarily mean resigning, but it can
also be inferred by the conduct of the member.​
People which have the authority to disqualify the members- The chairman, in the case of
Rajya Sabha and the Speaker, in the case of Lok Sabha has powers to disqualify a member on
grounds of defection. And, regarding complaints of Speaker/Chairperson involved in defecation,
a member elected by the house itself will take necessary actions regarding the same. This law
also has some exceptions, specifically when political parties merge with some other political
party.​

Functions of the Parliament- Part V of the Constitution of India deals with the functions of the
Union Parliament. These functions are written below :​

● Legislative Functions: Union Parliament works as the highest law-making body in the
country. The seventh schedule of the constitution provides three lists i.e Union List, State list and
Concurrent list. Union Parliament makes laws on the subjects mentioned in the Union list and
Concurrent list. It also makes laws on the state list's subjects in some conditions.
● Executive Functions: After making laws, the duty of implementation is on the executive
branch of the government. Executive and legislative branches are interdependent. Parliament
keeps checking on the executive and the executive keeps checking on the legislatures. For
example, a no-confidence motion can be passed by the legislatures in the Union Parliament to
remove the Prime Minister along with his cabinet.
● Judicial Functions: Union Parliament also acts as a Judicial structure in a lot of matters.
Legislatures have Parliamentary Privileges. If these privileges are breached, then the Union
Parliament also has punitive powers to punish. Not only this, but it also plays a judicial function
while removing the President, the Vice President, the judges of the Supreme Court or High
Court, etc.​

There are various other functions of the Union Parliament besides the above-mentioned
functions. These are written below:
● The Parliament has amendment powers. They can change the Constitution of India by
following the established procedure.
● The Parliament and its legislatures participate in the elections of the President and the Vice
President.
● They also have the power to remove the President and the Vice President by passing the
resolution.
● Not only this, at the center level the Parliament is the only authority with respect to the
finances of the country. Not even a single rupee can be spent by the executive without the
approval of the Parliament.
● The Union Parliament also presents the budget of the country before the end of the financial
year.
● The emergency is also implemented in the country with the approval of the Parliament.​
Termination of Parliament
Sessions of Parliament- Whenever either of the houses meets for the conduct of its business, for
the period it meets, is called a session. With not more than a 6-months gap, the president can
summon either of the houses for conducting a session. Thus, the Parliament must necessarily
meet at least two times a year. As per convention, three sessions are conducted by the Indian
Parliament in a year:
● Budget Session between February and May.
● Monsoon Session between July and September.
● Winter Session between November and December.​

Prorogation- Prorogation of the house essentially means termination of a session of the house.
The notice of prorogation is issued by the Speaker or the Chairperson of the House. After a
session is ended, the presiding officer adjourns the house sine die, i.e with no appointed date for
resuming the house and then after a few days, the notice is issued. However, houses of the
Parliament can also be adjourned or prorogued when in session. This is provided under Article
85(2) of the Indian Constitution.​

Dissolution- The power to dissolve the Lok Sabha is placed with the President of India in
accordance with Article 85 of the Indian Constitution. In two cases, dissolution of the Lok Sabha
is possible:
● When the term of the Lok Sabha, i.e 5 years complete and is dissolved by the leader of the
ruling party.
● When the government loses the majority and floor test is about to happen, in that case, the
president can dissolve the house.​
And, it is completely different from adjournment or prorogation as Dissolution means the end of
the term of that particular Lok Sabha.​

Effect of Dissolution on the business pending in the House- Articles 107 and 108 of the Indian
Constitution deals with these situations. It states that whenever the Lok Sabha is dissolved, be it
after completing its whole term or midway, all the business, which includes bills, notices,
petitions, motions, etc, do lapses. When a new Lok Sabha is elected and it begins with its
sittings, all the motions, bills and notices need re-introduction in the house.​

Parliamentary Privileges- Parliamentary privileges are special rights, immunities and

exemptions enjoyed by the two Houses of Parliament, their committees and their members.
These privileges are defined in Article 105 of the Indian Constitution. Under these privileges, the
members of Parliament are exempted from any civil liability (but not criminal liability) for any
statement made or act done in the course of their duties. The privileges are claimed only when
the person is a member of the house. As soon as she/he tends to be a member, the privileges are
said to be called off. Parliament has not made any special law to exhaustively codify all the
privileges. They are rather based on five sources:
● Constitutional provisions
● Various laws made by Parliament
● Rules of both the Houses
● Parliamentary conventions
● Judicial interpretations​

Privileges:
1. Freedom of Speech in Parliament: The freedom of speech and expression guaranteed to a
citizen under Article 19 (2) is different from the freedom of speech and expression provided to a
member of the parliament. It has been guaranteed under Article 105(1) of the Indian constitution.
But freedom is subject to rules and orders which regulate the proceedings of the parliament.​

Limitations:
● Freedom of speech should be in accordance with the constitutional provisions and subject to
rules and procedures of the parliament, as stated under Article 118 of the Constitution.
● Under Article 121 of the Constitution, the members of the parliament are restricted from
discussing the conduct of the judges of the Supreme Court and the High Court.​

●Freedom from Arrest: The members enjoy freedom from arrest in any civil case 40 days before
and after the adjournment of the house and also when the house is in session. No member can be
arrested from the limits of the parliament without the permission of the house to which she/he
belongs so that there is no hindrance in performing their duties. If the detention of any members
of the parliament is made, the chairman or the speaker should be informed by the concerned
authority, of the reason for the arrest. But a member can be arrested outside the limits of the
house on criminal charges against him under the Preventive Detention act, the Essential Services
Maintenance Act (ESMA), the National Security Act (NSA), or any such act.​
​

3. Right to Prohibit the Publication of Proceedings: Article 105(2) of the Constitution, no

person shall be held liable for publishing any reports, discussions etc. of the house under the
authority of the member of the house. For paramount and national importance, it is essential that
the proceedings should be communicated to the public to make them aware of what is going on
in the parliament.​

4. Right to Exclude Strangers: The members of the house have the power and right to exclude
strangers who are not members of the house from the proceedings. This right is very essential for
securing free and fair discussion in the house.​
What Did the Vice President hold? According to the Vice President under the Article 105 of
the Constitution, the Members of Parliament enjoy certain privileges so that they can perform
their parliamentary duties without any hindrance. One of the privileges is that a Member of
Parliament cannot be arrested in a civil case, 40 days before the commencement of the
Parliamentary session or Committee meeting, and 40 days thereafter. This privilege is already
incorporated under Section 135A of the Civil Procedure Code, 1908. However, in criminal
matters, Members of Parliament are not on a different footing than a common citizen. It means
that a Member of Parliament does not enjoy any immunity from being arrested in a criminal
case, during the session, or otherwise.​

Legislative Procedure in Parliament- The legislative procedure is identical in both the Houses
of Parliament. Every bill has to pass through the same stages in each House.​

Bill: A bill is a proposal for legislation that becomes an act or law when duly enacted.​

Types of Bills : Bills introduced in the Parliament are of two kinds; public bills (government
bills) and private bills.
Classification: The bills introduced in the Parliament can be classified into four categories:
Ordinary bills: concerned with any matter other than financial subjects.
Money bills: concerned with financial matters like taxation, public expenditure, etc.
Financial bills: concerned with financial matters (but are different from money bills).
Constitution Amendment Bills: concerned with the amendment of the provisions of the
Constitution.​
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Classification of Bills
Ordinary Bills- Every ordinary bill has to pass through the following five stages in the
Parliament before it finds a place on the Statute Book.​

First Reading: It can be introduced in either House of Parliament either by a minister or by any
other member. The bill is published in the Gazette of India. The introduction of the bill and its
publication in the Gazette constitute the first reading of the bill.
Second Reading: It is the most important stage in the enactment of a bill and involves three
more
sub-stages:
■ Stage of General Discussion: At this stage, the House can take any one of the following four
actions:
○ It may take the bill into consideration immediately or on some other fixed date.
○ It may refer the bill to a select committee of the House.
○ It may refer the bill to a joint committee of the two Houses
○ It may circulate the bill to elicit public opinion.
■ Committee Stage: This committee examines the bill thoroughly and in detail, clause by clause.
○ It can also amend its provisions, but without altering the principles underlying it.
■ Consideration Stage: The House, after receiving the bill from the selected committee,
considers the provisions of the Bill clause by clause. Each clause is discussed and voted upon
separately.
Third Reading: At this stage, the debate is confined to the acceptance or rejection of the bill.
■ If the majority of the members present and voting accept the bill, the bill is regarded as passed
by the House.
■ A bill is deemed to have been passed by the Parliament only when both the Houses have
agreed to it, either with or without amendments.
Bill in the Second House: In the second House, (Rajya Sabha) the bill passes through all the
three stages. The second House may:
■ Pass the bill as sent by the first house (i.e., without amendments). In such a case, the bill is
deemed to have been passed by both the Houses and is sent to the president for his assent.
■ Pass the bill with amendments and return it to the first House for reconsideration.
■ Reject the bill altogether.

■ Not take any action and thus keep the bill pending.
○ If the second House rejects the bill altogether or does not take any action for six months; a
deadlock is deemed to have taken place for which the president can summon a joint sitting of the
two Houses.
■ Assent of the President: Every bill after being passed by both Houses of Parliament either
singly or at a joint sitting is presented to the President for his assent. The President may:
○ Give his assent to the bill.
○ Withhold his assent to the bill.
○ Return the bill for reconsideration of the Houses. Thus, the President enjoys only a
“suspensive veto.”

Constitutional Amendment Bills- As per the Constitution of India, Constitution Amendment

Bills can be of three types requiring:
■ A Simple majority for their passage in each House.
■ A Special majority for their passage in each House
■ A Special majority for their passage and ratification by Legislatures of not less than one-half of
the States by resolutions to that effect passed by those Legislatures.​

House of Introduction: Under article 368, it can be introduced in either House of Parliament and
has to be passed by each House by special majority. There is no provision of joint sittings on a
Constitution Amending Bill (or in a Money Bill).​

Joint Sitting of Two Houses- Joint sitting is extraordinary machinery provided by the
Constitution to resolve a deadlock between the two Houses over the passage of a bill.​

■ Conditions of Deadlock: A deadlock is deemed to have taken place under any one of the
following three situations:
a. If the bill is rejected by the other House.
b. If the Houses have finally disagreed as to the amendments to be made in the bill.
c. If more than six months have elapsed from the date of the receipt of the bill by the other House
without the bill being passed by it.​

■ Applicability: The provision of joint sitting is applicable to ordinary bills or financial bills only
and not to money bills or Constitutional amendment bills.
a. In the case of a money bill, the Lok Sabha has overriding powers, while a Constitutional
amendment bill must be passed by each House separately.
■ Role of Speaker: The Speaker of Lok Sabha presides over a joint sitting of the two Houses and
the Deputy Speaker, in his absence. If both are absent, the Deputy Chairman of Rajya Sabha
presides.
■ Quorum: The quorum to constitute a joint sitting is one-tenth of the total number of members
of the two Houses.
■ Instances of Joint Sittings: Since 1950, the provision regarding the joint sitting of the two
Houses has been invoked only thrice. The bills that have been passed at joint sittings are:
a. Dowry Prohibition Bill, 1960.
b. Banking Service Commission (Repeal) Bill, 1977.
c. Prevention of Terrorism Bill, 2002.​
Rules of Business (Art. 77)- Article 77 of the Constitution of India deals with the Conduct of
business of the Government of India. It mentions the following provisions:
● All executive action of the Government of India shall be expressed to be taken in the name of
the President.
● Orders and other instruments made and executed in the name of the President shall be
authenticated in such manner as may be specified in rules to be made by the President, and the
validity of an order or instrument which is so authenticated shall not be called in question on the
ground that it is not an order or instrument made or executed by the President.
● The President shall make rules for the more convenient transaction of the business of the
Government of India, and for the allocation among Ministers of the said business.​

CASE LAWS:-
P.V Narasimbha Rao v. State of Andhra Pradesh: In 1993 at one point, the Narasimha rao
ministry did not enjoy a majority in the Lok Sabha and a vote of confidence was sought to be
moved against the government by opposition pirates and in order to avoid defeat, the ruling party
paid large sums of money to certain MPs who then voted against the motion.
● Against this background, the SC had to answer following two questions
○ Whether a MP is a public servant within the meaning of the term defined under
the Prevention of Corruption Act, 1988?
○ Keeping in mind the provisions of Art. 105 (discussed above), whether a MP could claim
immunity from prosecution before a criminal court on a charge of bribery in relation to certain
proceedings in Parliament
● The 5 judge bench unanimously answered the first question in the affirmative and held that a
MP/MLA was a public servant under the act as he held an office and is authorities and required
to carry out a public duty, namely, effectively representing his constituency
● On the second question, a majority (3 judge) took a very broad view of the language of article
105 and concluded that a MP is protected from court proceedings in any matter which relates to,
or has a nexus with, anything said or any vote given in Parliament.
Having said that, they held although the bribe-givers (also MPs) can claim no immunity under
Art. 105, the MP who took the bribe would be protected under the said article, as the bribe could
be seen as “ motive or reward” for defeating the motion, thus having a clear nexus with their
voting.

Jaya Bachchan vs Union of India

●​ Jaya Bachchan, a member of rajya sabha, was appointed as chairperson of the Film
Development Council. The Parliament [ Prevention of Disqualification] Act did not
exempt the said office of profit from the disqualification under Article 102[1] of the
constitution.
●​ The office carried with a monthly honorarium of rs 5000/- entitlement expedition of
10000/-, staff car, telephones, free accommodation, medical and other allowances.
 ●​ The petitioner’s membership on this ground was challenged and after obtaining the
opinion of election commission as per art 103[2] was disqualified as a member of Rajya
Sabha.
●​ She challenged the disqualification order in supreme court and claimed the benefits and
facilities provided by the state govt were not received by her.
●​ The supreme court held the disqualification to be valid: an office of profit is an office
which is capable of yielding a profit or pecuniary gain, nature of the payment to be
considered as a matter of substantive rather than of form and the nomenclature is not
important.
●​ Here the pecuniary gain was in all the allowances she was incurring during her position,
rather than just deeming monetary gain within the purview of yielding profit.

Kihoto Hollohan v Zachilhu

●​ The supreme court has struck down para 7 of the anti-defection [10th schedule] which
provided that the Speaker’s decision regarding the disqualification shall be final and no
court could examine its validity.
●​ Held that the function of the speaker while applying the anti defection law is like that of a
tribunal and therefore open to judicial review.
●​ But by 3:2 ratio the court held that schedule 10 is not violative of freedom of speech, vote
and conscience of members of parliament and legislature of states. The provisions are
intended to strengthen the fabric of Indian democracy by curbing unprincipled and
unethical political defections.
●​ The freedom of speech of a member is not absolute freedom and in majority ruling, set
aside the 17/9 order of the meghalaya speaker disqualifying 5 members of the house who
were members of coalition ministry, as well as the order of the manipur speaker
disqualifying some members of the House on the grounds of defection​
 UNIT- 7​

Abolition or Creation of Legislative Councils- In our country, the Legislative Council (also
known as Vidhan Parishad) is the Upper House of a bicameral legislature. The creation of which
is given in Article 169 of the Indian Constitution and can also be abolished according to Article
169 of the Constitution. Article 168 mentions the Legislative Council in some of the States of
our country. There is no rule of having a bicameral legislature in the State of India. It is because
our Constitution framers knew that it would not be possible for every State to have a bicameral
legislature (due to financial or any other reason). Article 169 talks about the creation or abolition
of the Legislative Council. For the creation or abolition of the Legislative Council, the
Legislative Assembly must pass a resolution that must be supported by more than 50% of the
total strength of the assembly. It must be supported by more than 2/3rd of the total members
present in voting. Therefore it talks about the absolute and special majority. The resolution to
create or to abolish the Legislative Council needs the assent of the President as well.

Composition of the Houses- Article 170 of the Indian Constitution talks about the configuration
of the Legislative Assemblies. This Article simply put emphasis on what will be the structure of
the Legislative Assemblies in the state. On the other hand, the configuration of the Legislative
Council is given in Article 171 of the Indian Constitution. ​
​
Legislative Assembly (Vidhan Sabha)- According to Article 170, there should be a Legislative
Assembly in every State of India. However, these assemblies should be according to the
provisions of Article 333 of the Indian Constitution. The Legislative Assembly of the state can
have at most 500 constituencies and at least 60 constituencies. These constituencies would be
represented by the members who would be selected through the process of direct election.
However, the division of territorial constituencies would be determined in such a manner that it
becomes dependent on the population of that constituency. Here by the term “ population” we
mean population which has been published in the precedent census. The composition of the
Legislative Assembly in any state can change according to the change in the population of that
state. It is determined by the census of population. However, there are several exceptions to the
composition of the Legislative Assembly. Let’s take the example of Mizoram, Sikkim, and Goa
which have less than 60 constituencies.
The tenure or duration of the Legislative Assembly is mentioned in Article 172 of the Indian
Constitution. The Legislative Assembly should work for a time period of five years. Its tenure
starts from the day of its first meeting. However, it can be dissolved earlier by the special
procedure established by the law. However, there can be an extension in the tenure of the
Legislative Assembly. This can be done during the National Emergency. During the period of the
National Emergency, the Parliament can extend the tenure of the Legislative Assembly for a
period of maximum one year. Also, this extension should not be more than six months after the
proclamation has ceased to operate.​

Legislative Council (Vidhan Parishad)- The composition of the Legislative Council is given in
Article 171 of the Indian Constitution. The total members in the Legislative Council should not
exceed one-third of the total members in the state Legislative Assembly. There is another criteria
for the composition of the Legislative Council. The member in the Legislative Council should
not be less than 40 in any case. There is an exception in the composition of Vidhan Parishad. The
Legislative Council of Jammu and Kashmir has only 36 Members in the Legislative Council,
unlike the other Legislative Council. The composition of the Legislative Council can be further
divided in the following way:
● One-third of the members of the Legislative Council should be elected from the district boards,
municipalities and other local authorities which are specified by the Parliament according to law.
● One-twelfth of its members shall be elected from the person who has been residing in the same
state for the time period of at least three years and graduated from the university which is in the
territory of India.
● One-twelfth of its total members should be elected from the person who is engaged in the
teaching profession for at least three years in the educational institution of the state itself.
● One-third should be elected by Legislative Assemblies and none of them should be a member
of the Legislative Assembly.
● The remainder of the members should be nominated by the Governor according to the
established law.​
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 UNIT- 8, 9, 10 ​

Supreme Court (The Guardian of the Constitution)- There can be discords arising in between
the different units of the federation, that is when the Supreme Court comes into play. It’s the
highest authority and the final interpreter of the law which means that it has the power to give
final decisions on all the matters of the law. Its judgments are binding on all the lower courts. It
has the power of judicial review through which it can review the action of the executive and the
Legislature.​

Article 124 of the constitution- The first part of this Article provides for the setting up of the
Supreme Court which will be composed of one Chief Justice of India and only seven judges until
the Parliament by law prescribes any more judges. The second part of this Article states that the
Chief Justice of India will be appointed by the President after consulting other judges whom he
thinks suitable and will hold the office until he attains the age of 65 years. Whereas the president
will have to take into account the Chief Justice’s opinion when he appoints the other judges.
● This Article in its part 2(a) says that a judge can by writing to the President, resign from
his position, whereas,
● This Article in its part 2(b) says that the judge can be removed under the provision
contained in clause 4.​

Composition of the Court- With respect to Article 124(2) , the number of judges was only
limited to seven but the parliament by law prescribed & amended that the number of judges
should be increased to thirty-one, i.e thirty judges and the Chief Justice of India. This was done
with a rationale that seven-judges will not be able to suffice the work the Judiciary undertakes. In
order to work efficiently, the number of judges should be increased otherwise the cases will keep
on piling up and there will be more scenes of injustice.​

Appointing the Chief Justice of India- Clause (2) of Article 124 of the Indian Constitution
provides that the President of India appoints the Chief Justice of India (CJI). The President
appoints the chief justice after consulting with the Supreme Court and other high court justices as
needed. After consulting with the chief justice and any other Supreme Court and high court
judges he considers necessary, the president appoints the other justices. When a judge other than
the Chief Justice is appointed, the Chief Justice must first be consulted.
Steps for Appointing the Chief Justice of India-
● The senior-most Supreme Court judge deemed qualified to serve in the position shall be
appointed as India’s Chief Justice.
● When the time is right, the Union Minister of Law, Justice, and Corporate Affairs will request
the retiring Chief Justice of India’s recommendation to select the next Chief Justice of India.
● The next Chief Justice of India will be chosen after consultation with other judges if there is
any uncertainty regarding the senior-most Judges eligibility to serve in that position.
● After receiving the Chief Justice of India’s proposal, the Union Minister of Law, Justice, and
Corporate Affairs will forward it to the Prime Minister, who will advise the President on the
appointment.​

Appointment of Judges of the Supreme Court- According to the Constitution of India, the
the following are the rules for appointment of the Supreme Court Judges.
● Every Judge of the Supreme Court shall be appointed by the President by warrant under his/her
hand and seal after consultation with such of the Judges of the Supreme Court and of the High
Court in the States as President may deem necessary for the purpose and shall hold office until he
attains the age of 65 years.
● The Supreme Court held that the consultation with the Chief Justice is not binding on the
President. But the Court held that consultation should be effective.
● CJI is the sole authority to initiate the process of appointment of Judges of the Supreme Court.
In case of conflict of opinion between CJI and President, the view expressed by CJI will have a
primary.
● In July 1998, the President sought the court’s opinion on core issues relating to the
appointment of Apex Court Judges and transfer of High Court Judges.
● The 11th Presidential Reference sought clarification on certain doubts over the consultation
process to be adopted by the Chief Justice of India as stipulated in the 1993 case relating to
judges appointment and transfer of opinion.
● The crux is as follows:
● In judicial appointments, it is obligatory for the President to take into account the opinion of
the CJI.
● The opinion of the CJI is binding on the Government. The opinion of the CJI must be formed
after due consultation with a collegium of at least four senior-most judges of the Supreme Court.
● Even if two judges give an adverse opinion, then he should not send the recommendation to
the Government.​

Removal of Judges From Supreme Court- The Constitution of India also provides a set of
regulations for the removal of the Supreme Court judge. Article 124(4) mentions those Removal
regulations of the Supreme court judge as follows:
● A judge of the Supreme Court shall not be removed from his office except by an order of the
President passed after an address by each House of Parliament supported by a majority of the
total membership of that House and by a majority of not less than two-thirds of the members of
that House present and voting has been presented to the president in same session for such
removal on the ground of proved misbehavior or incapacity. Parliament may by law regulate the
procedure for the presentation of an address and for the investigation and proof of the
misbehavior or incapacity of a Judge under the previous Clause.
● The salaries of the Judges and the administrative expenses of the Supreme Court are charged
on the Consolidated Fund of India [CFI] and are not subjected to the vote of Parliament.
● Judges of the Supreme Court cannot plead or act in any court or before any authority within
the territory of India after retirement.​

Jurisdiction of the Supreme Court

A Court of Record- The jurisdiction of the Supreme Court under Article 129 is independent of
the Courts Act. Contempt of court takes place when any person disobeys the orders of the court
or through his demeanor disrespects the court. Court of Record is that the proceedings of the
court will be recorded so that they can act as a testimony in the future. Well, Article 129 makes
the Supreme Court the court of record and gives it the power to punish for its contempt.​

Supreme Court’s power to punish for contempt of itself as well as subordinate courts-
Article 215 of the Constitution does not empower the High Court to punish for contempt of the
Supreme Court but the Supreme Court has the power to punish for contempt of High court and
other subordinate courts. In case, the Supreme court does not punish for its own contempt then
the High Court has no say in it.​

Contempt jurisdiction for protection of Registry- Supreme court has not only maintained the
contempt of court in order to punish people to harm the judge’s reputation but also to protect the
name of the Judiciary. To give you an illustration, an advocate was barred from practicing law
for one month because he accused the registry of the court wherein he wrote the word ‘bench
hunt’. The Court ruled that the bench is not constituted by the registry but by the Chief Justice of
India and the contempt of registry shall be punished.​

A Minister or official may also be guilty of contempt when the Contempt of Court is
committed by the State- When there is an issue before the court which is between the states on
both sides of the state is one of the parties and the court give an order or decree which the state
disobeys then the Supreme Court can make the State guilty of contempt. The officials and
ministers involved in the case will be thereto made liable for the same.​

The Court’s unlimited power to compel obedience and compliance of its orders- Under
Article 142, the Supreme Court has been given the power to make an order in regard to the
contempt of Court. That is, the Supreme Court can compel any person under this Article to obey
the order which it has given.​

Original Jurisdiction (Article 131 )- The Supreme Court has original jurisdiction when it
comes to matters related to the following-
● Between the Government of India and one or more than one states; or
● Between government of India and one or more states at the different sides; or
● Between two or more than two states.​
It is further provided that its jurisdiction shall not cover the matter arising out of any agreement,
engagement or any sort of treaty, which was present before the pre-constitutional time and is still
in force. It also extends to the matters which provide that this jurisdiction shall not apply to the
respected dispute.​

Enforcement of Fundamental Rights- Article 32 of the Indian Constitution states that if any
fundamental right is infringed, then the person can approach the Supreme Court. This Article
provides for the issue of writs which include Habeas corpus, mandamus, Certiorari, Quo
warranto, Prohibition. After issuing these writs one can directly approach the Supreme Court for
the enforcement of the Fundamental Rights.​

Appellate Jurisdiction (Article 132)- Article 132 provides that the appeals for the High Court
of any state can be brought up in the Supreme Court for civil as well as criminal matters. It is
provided that the case should involve some substantial question of law under Article 134A.
When all of the parameters are met then the certificate is granted under which any person can
approach the SC on the basis that his or her case has been wrongly decided.​

An appeal in Civil matters- Article 133 talks about the appeal in the case of constitutional
matters.
● It says that the appeal shall lie to the Supreme court only if the High Court certifies that it
fulfills the condition given in the Article 134A which says that the matter should contain a
substantial question of law and in the opinion of the High Court the matter should be passed on
to the Supreme Court.
● This Article again emphasizes in its clause (2) that a question of law should be wrongly
decided by the High court.
● In its clause (3), it states that notwithstanding anything stated in this Article, any appeal will
not lie before the Supreme Court until the Parliament specifies.​

An appeal in Criminal Cases (Article 134)- It says about the appeal to the Supreme Court
when the matter is of criminal nature. The appeal would lie before the SC when the High Court-
● On appeal, has reversed the acquittal of the person and he has been sentenced to death; or
● Withdraws any case from a subordinate court and has announced the conviction of the person
or death sentence; or
● Has considered the case to be fit to be presented before the Supreme Court on the basis of
Article 134A (substantial question of law).​

Appeal by Special Leave (Article 136)- Article 136 enables the Supreme Court to grant special
leave of appeal for any order, judgment or sentence which is passed by any court or tribunal in
the country. It is regardless of anything contained in the chapter concerning the Union Judiciary
and does not apply to any matter concerning Armed forces.
Advisory jurisdiction-Article 143- If at any point the President feels like a matter carries
substantial questions related to law and is of public utility then he can approach the Supreme
Court for Advisory jurisdiction. The Supreme Court after hearing it may give his opinion to the
President. This is the procedure of Advisory jurisdiction which is present in Article 143 of the
Constitution.​

Power to do Complete Justice (Article 142)- It provides discretionary power to the Supreme
Court as it states that the SC in the exercise of its jurisdiction may pass such decree or make such
order as is necessary for doing complete justice in any cause or matter pending before it.​

Constructive Application: In the early years of the evolution of Article 142, the general public
and the lawyers both lauded the Supreme Court for its efforts to bring complete justice to various
deprived sections of society or to protect the environment. The Cleansing of Taj Mahal and
justice to many undertrials is a result of the invocation of this article only.
In the Union Carbide case, relating to the victims of the Bhopal gas tragedy , the Supreme Court
placed itself above the laws made by the Parliament or the legislatures of the States by saying
that, to do complete justice, it could even override the laws made by Parliament. However, in the
Supreme Court Bar Association v. Union of India , the Supreme Court stated that Article 142
could not be used to replace the existing law, but only to supplement (added to the law) the law.​

Cases of Judicial Overreach: In recent years, there have been several judgments of the Supreme
Court wherein it has been foraying into areas which had long been forbidden to the judiciary by
reason of the doctrine of ‘separation of powers’, which is part of the basic structure of the
Constitution. One such example is:
■ The ban on the sale of alcohol along national and state highways: While the notification by the
central government prohibited liquor stores along National Highways only, the Supreme Court
put in place a ban on a distance of 500 meters by invoking Article 142.
■ Additionally, and in the absence of any similar notification by any of the State governments,
the court extended the ban to State highways as well.
■ Such judgments have created uncertainty about the discretion vested in the court to invoke
Article 142 where even fundamental rights of individuals are being ignored.​

Power to review its judgments Art 137- The Supreme Court has the power to review its
judgment. It is subjected to the provisions of law and provisions under Article 147 . It is
basically a mechanism provided to the Supreme Court to amend its mistakes.​

Curative Petition- A curative petition is the last remedy provided for any grievances. Its
counterpart is the mercy petition which is filed before the President. (It was also filed in the
famous Delhi rape case).
CASE LAWS:-
Judges Transfer Case I is known as SP Gupta v. Union of India -
●​ This case ruled out that, whenever there is an issue between the different constitutional
agencies, then the decision of the central government will prevail and the government
will choose as to which view of the constitutional agency will be taken into
consideration.
●​ Whereas, when the appointment of the Supreme Court judges is concerned then the
opinion of the Chief Justice of India will not be in concurrence and it will be on the
government to take the final decision.
●​ As far as the word ‘may’ in Article 124(2) is concerned, the court stated that it only
implies taking decision regarding which judge of the Supreme court and the High court
has to be consulted while appointing the judges of the Supreme Court and High court,
whereas it does not give an option to the government to take into consideration the
opinion of the judges. In this case, the supremacy of the Executive was maintained.
●​ the Supreme Court unanimously agreed with the meaning of the term 'consultation' as
explained by the majority in Sankalchand Sheth's case. The meaning of the word
'consultation' in Article 124 (2) is the same as the meaning of the word 'consultation' in
Article 212 and Article 222 of the Constitution.
●​ The only ground on which the decision of the Government can be challenged is that it is
based on mala fide and irrelevant considerations, that is, when constitutional
functionaries expressed an opinion against the appointment.
●​ This means that the ultimate power to appoint judges is vested in the Executive from
whose dominance and subordination it sought to be protected. The Supreme Court had
abdicated its power by ruling that Constitution functionaries had merely a consultative
role and that power of appointment of Judges is "solely and exclusively" vested in the
Central Government.
●​ It is submitted that the majority judgment of the Supreme Court in the judges transfer was
bound to have an adverse effect on the independence and impartiality of the judiciary
which is the only hope for the citizens in democracy.
●​ Bhagwati, J., has, therefore, in his judgment suggested the appointment of a Judicial
Committee for recommending names of persons for appointment as judges of the higher
courts. He said, "It is unwise to entrust power in any significant or sensitive area to a
single individual, however high or important may be the office, which he is occupying".​
● Supreme court Advocates on Record Association v. U O I- collegium system
●​ 7-2 majority overruled its earlier judgement in the Judges Transfer case (S. P. Gupta v.
Union of India') and held that in the matter of appointment of the Judges of the Supreme
Court and the High Courts the Chief Justice of India should have primacy.
●​ The matter was brought before the Court through a PIL writ petition filed by an advocate
of the Supreme Court seeking relief of filling up vacancies in the higher judiciary. The
appointment of Chief Justice of India shall be on the basis of seniority.
●​ The Court has laid down detailed guidelines governing appointment and transfer of
Judges and held that the greatest significance should be attached to the view of the Chief
Justice of India formed after taking into account the views of two senior most Judges of
the Supreme Court.
●​ It thus has, reduced to the minimum individual discretion conferred upon the Prime
Minister and the Chief Justice of India so as to ensure that neither political bias nor
personal favoritism nor animosity should play any part in the appointment of Judges of
the Supreme Court and High Courts.
●​ The selection should be made as a result of a participatory consultative process in which
the executive should have power to act as a mere check on exercise of power by the Chief
Justice of India.
●​ The majority held that the initiation of proposal for appointment in case of the Supreme
Court must be by the Chief Justice of India and in the case of a High Court by the Chief
Justice of the High Court, and for a transfer of a judge of the Chief Justice of the High
Court the proposal has to be initiated by the Chief Justice of India.
●​ No appointment of any judge to the Supreme Court or any High Court can be made,
unless it is in conformity with the opinion of the Chief Justice of India. Only in
exceptional cases and for strong reasons, the names recommended by the Chief Justice
may not be made.

The system which was laid down in the first judge case created many problems. – when the
Chief Justice of India was asked to give his opinion, he let a junior judge take the position of the
CJI without giving a chance to the senior judges. So, it was decided that there should be a
collegium system which in the case of the Supreme Court will consist of the Chief Justice of
India and two senior-most judges. And, while taking the decision as to who would take the post
of CJI both of the judges of the collegium will give their opinion and CJI will have to take that
into consideration. After that, the decision of the collegium will go to the President for his assent.
Whereas, in the case of the High Court it will be the Chief Justice of the High Court and the two
senior-most judges, and the procedure thereon, is the same as for the SC. Now what really
happened was that the Chief Justice of India, at times did not consider the opinion given by the
other judges and would take the decision of his own and pass it on to the President for his assent.
This case basically maintained judicial supremacy. Moreover, It ruled out the judgment of the
first judge case and laid down the formation of the collegium system. In Supreme Court
Advocates-on-Record Association vs Union of India 1993, the Court states that the view of the
CJI is binding on the President, the Court also held that while advising the President CJI is
expected to consult two of the senior-most Judges.

Judges Transfer Case III is known as In Re Special Reference Case-

●​ In re Presidential Reference a nine judge bench of the Supreme Court has unanimously
held that the recommendation made by the Chief Justice of India on the appointment of
Judges of the Supreme Court and the High Courts without following the consultation
process are not binding on the Government.
●​ The Court also widened the scope of the Chief Justice's consultation process upholding
the government's stand on consultation process, the Court gave its opinion on the nine
questions raised by the President in his reference to the Supreme Court, under. Art. 143 of
the Constitution.
●​ The President had sought the Supreme Court's clarification on the consultation process,
as laid down in S.C. Advocates' case for the appointment and transfer of Judges
following a controversy over the recommendation by former Chief Justice of India M. M.
Punchhi. The BJP Government did not agree with his recommendation and referred the
matter for the Supreme Court's opinion.
●​ The Court held that the consultation process to be adopted by the Chief Justice of India
requires consultation of Plurality of Judges. The expressions "consultation with the Chief
Justice of India" in Articles 217 (1) and 222 (1) of the Constitution of India require
consultation with plurality of Judges in the formation of opinion of the Chief Justice of
India.
●​ The sole individual opinion of the Chief Justice of India does not constitute
"consultation" within the meaning of the said articles. The majority held that in regard to
the appointment of judges to the Supreme Court under Art. 124 (2), the Chief Justice of
India should consult "a collegium of four senior most Judges of the Supreme Court" and
made it clear that if "two Judges give adverse opinion the Chief Justice should not send
the recommendation to the Government."
●​ The collegium must include the successor Chief Justice of India. The opinion of the
collegium must be in writing and the Chief Justice of India should send the
recommendation to the President along with his own recommendations.
●​ The recommendations of the collegium should be based on a consensus and unless the
opinion is in conformity with that of the Chief Justice of India, no recommendation is to
be made.
●​ In regard to the appointment of Judges of the High Courts, the Court held that the
collegium should consist of the Chief Justice of India and any two senior most Judges of
the Supreme Court.
 ●​ In regard to transfer of High Court Judge the Court held that in addition to the collegium
of four Judges, the Chief Justice of India is required to consult Chief Justices of the two
High Courts (one from which the Judge is being transferred and the other receiving him).
●​ The Court held that the appointment of the Judges of higher Courts can be challenged
only on the ground that the consultation power has not been in conformity

Well, the Judicial Supremacy continued to be in existence. Whenever the opinion of the
collegium was not taken into consideration, it was not acceptable to the CJI. This continued until
the Executive approached the court for an advisory opinion of the Supreme Court. Further, the
court ordered to increase the number of judges in the collegium from two to four. It also ruled
out that the most senior-most judge will take the designation of CJI and as far as the judges of the
Supreme court are concerned, the Supreme Court collegium will recommend the president to
which he will give his assent. ​
Sole Opinion of Chief Justice of India without following consultation process: Not binding
on Government. Judges Transfer Case III made it clear through its judgment that whenever the
Chief Justice of India conveys to the President, his opinion without taking into account the
opinion of the collegium then the opinion of the CJI alone, will be rejected until he follows the
constitutional mandate. To give an example, in 2018, Senior Advocate Indu Malhotra was
recommended by the collegium consisting of Justice Deepak Misra, then Chief Justice of India.​

SC advocate on record assn. V. UOI, 2015 (Fourth judges case)

● The Supreme Court struck down the NJAC act as ‘unconstitutional and void’.
● The Court declared that the ‘NJAC’ Act altered the basic features of the constitution as it
impairs the ‘independence of the judiciary’ and the ‘separation of powers’ by conferring
arbitrary and uncharted powers on various authorities under the statute.
● Therefore, the amendment cannot be sustained.
● The position as it stood prior to the constitution 99th amendment act i.e. ‘college system’ got
revived.
Subhash Sharma v. UOI, 1991 :-
● In these petitions in the nature of public interest litigation under Article 32 of the Constitution,
the relief asked for is one for mandamus to the Union of India to fill the vacancies of Judges in
the Supreme Court and the several High Courts of the country and ancillary orders or directions
in regard to the relief of filling up of vacancies.
● In response to the rule, the Union of India, relying upon S.P. Gupta v. Union of India, [1982] 2
SCR 365, raised a preliminary objection as to the justiciability of the issue.
● It was decided between the First Judges Case and the Second Judges Case, and where the
Court recommended that the question be decided by a bench of nine judges (and is therefore
important for understanding the logic of the Second Judges Case), it was observed:
○ “... the judicial institutions, by tradition, have an avowed apolitical commitment and the
assurance of a non-political complexion of the judiciary cannot be divorced from the process of
appointments. Constitutional phraseology of “consultation” has to be understood and expounded
consistent with and to promote this constitutional spirit. These implications are, indeed, vital.
The constitutional values can not be whittled down by calling the appointments of judges as an
executive act... We are of the view that the primacy of the Chief Justice of India in the process of
selection would improve the quality of selection.
The purpose of the ‘consultation’ is to safeguard the independence of the judiciary and to ensure
selection of proper persons... there are preponderant and compelling considerations why the
views of the Chief Justices of the States and that of the Chief Justice of India should be afforded
a decisive import unless the executive has some material in its possession which may indicate
that the appointment is otherwise undesirable.”​

● This line of reasoning indicates not only that the independence of the judiciary (which is
indisputably a part of the basic structure) extends to the question of appointments, but also that
the primacy of the Chief Justice is central to maintaining that independence (in order to continue
the “assurance of a non-political complexion”). In the judicial reasoning leading up to the
Second Judges Case, therefore, it is clear that the primacy of the CJI was considered by the Court
to be part of the principle of judicial independence, and not – as the Union of India contends – a
temporary measure designed to deal with an extraordinary situation.​

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