Subject: Constitution of India, Law and Engineering

Faculty Name: Ms. Riddhi Chauhan

MODULE – 2
UNION EXECUTIVE & STATE EXECUTIVE

Rajya Sabha: Functions and Powers

The Rajya Sabha (Council of States) is the Upper House of the Union Parliament. It gives
representation to the States. The states do not enjoy an equal representation in the Rajya
Sabha. These have been given representations on the basis of the size of their populations.
I. Composition of the Rajya Sabha:
The Rajya Sabha can have a maximum strength of 250 members; out of these 238 are to be
the representatives of the States and remaining 12 members are to be nominated by the
President from amongst persons who have achieved distinctions in the fields of art,
literature, science or social services. At present, the Rajya Sabha has 245 members 233
elected and 12 nominated.
II. Method of Election:
The members of the Rajya Sabha are elected indirectly by the people. The people of each
State elect the members of their State Legislative Assembly elect the members of Rajya
Sabha by a method of proportional representation. Each State Legislative Assembly elects as
many representatives as have been allocated to it by the Constitution. Odisha Legislative
Assembly has 147 MLAs who together elect 12 members of Rajya Sabha.
III. Qualifications for the membership of Rajya Sabha:
● He must be a citizen of India.

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● He must be above the age of 30 years.
● He must possess all other qualifications as laid down by the Parliament.
● He must not hold any office of profit under any government.
● He should not be an insane or a bankrupt.
● He should not have been disqualified under any law of the Parliament.
Any person residing in any part of India can contest election to the Rajya Sabha from any
State.
IV. Tenure:
The Rajya Sabha is a Quasi-permanent House. It is not subject to dissolution as a whole.
One third of its members retire after every two years and elections are held only for the
vacant seats. The tenure of each member of the Rajya Sabha is six years.

V. Sessions:
The President convenes the sessions of the Rajya Sabha usually along with the sessions of
the Lok Sabha or whenever he feels it necessary. However, there cannot be a gap of more
than six months within the two sessions of the Rajya Sabha. The President can call a
special session of Rajya Sabha for getting approved an emergency declaration at a time when
Lok Sabha stands dissolved.
VI. Quorum for the Meetings of Rajya Sabha:
The quorum for the meetings of Rajya Sabha is 1/10th of its members. It means that at
least 1/10th of the members of the Rajya Sabha must be present for carrying out the work of
the House.
VII. Privileges of Members:
The members of the Rajya Sabha enjoy several privileges. They enjoy unrestricted freedom
to express their views in the House. No action can be taken against them for anything said by
them in the House. They cannot be arrested for any civil offence during, and 40 days before
and after the session of the Rajya Sabha.
VIII. Chairman and Deputy Chairman of the Rajya Sabha:
The Vice-President of India is the ex-officio Chairman of the Rajya Sabha. He is not a
member of the House. However, he presides over its meetings and conducts its proceedings.
During the absence of the Vice-President, the Deputy Chairman of the Rajya Sabha presides
over the meetings.

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 Powers and Functions of the Rajya Sabha:
1. Legislative Powers:
In law-making, the Rajya Sabha enjoys equal powers with the Lok Sabha. An ordinary
bill can be introduced in the Rajya Sabha and it cannot become a law unless passed by it. In
case of a deadlock between the two Houses of Parliament over an ordinary, the President can
convene a joint sitting of the two Houses for resolving the deadlock. The Joint sitting is
presided over by the Speaker of the Lok Sabha. If the bill is passed in the joint sitting, it is
sent to the President for his signatures.

2. Financial Powers:
In the financial sphere, the Rajya Sabha is a weak House. A money bill cannot be
introduced in the Rajya Sabha. It can be initiated only in the Lok Sabha. A money bill passed
by the Lok Sabha comes before the Rajya Sabha for its consideration. However, if within a
period of 14 days, the Rajya Sabha fails to pass the bill, the bill is taken to have been passed
by the Parliament irrespective of the fact whether the Rajya Sabha has passed it or not.
3. Executive Powers:
The Union Council of Ministers is responsible before the Lok Sabha and not the Rajya
Sabha. Lok Sabha alone can cause the fall of the Council of Ministers by passing a vote of
no-confidence. Although the Rajya Sabha cannot remove the Ministry from its office yet the
members of the Rajya Sabha can exercise some control over the ministers by criticising their
policies, by asking questions and supplementary questions, and by moving adjournment
motions. Some of the ministers are also taken from the Rajya Sabha. Now the Prime
Minister can also be from Rajya Sabha.
4. Amendment Powers:
Rajya Sabha and Lok Sabha can together amend the constitution by passing an amendment
bill with 2/3 majority in each House.
5. Electoral Powers:
The Rajya Sabha has some electoral powers also. The elected members of the Rajya Sabha
along with the elected. members of the Lok Sabha and all the State Legislative
Assemblies together elect the President of India. The members of the Rajya Sabha Lok

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Sabha together elect the Vice-President of India. Members of the Rajya Sabha also elect a
Deputy Chairman from amongst themselves.
6. Judicial Powers:
(a) The Rajya Sabha acting along with the Lok Sabha can impeach the President on charges
of violation of the Constitution. The charges against the Vice-President can be levelled
only in the Rajya Sabha.
(b) The Rajya Sabha can also pass a special address for causing the removal of a judge of
the Supreme Court or of any High Court.
(C) The Rajya Sabha can pass a resolution for the removal of some high officers like the
Attorney General of India, Comptroller and Auditor General and Chief Election
Commissioner.
7. Miscellaneous Powers:
The Rajya Sabha and Lok Sabha jointly perform the following functions:
(a) Approval of the ordinances issued by the President.
(b) Ratification of an emergency proclamation.
(c) Making any change in the jurisdiction of the Supreme Court and the High Courts.
(d) Making any change in the qualifications for the membership of the Lok Sabha and the
Rajya Sabha.

LOK SABHA - FUNCTIONS AND POWERS

The House of the People is popularly known as the Lok Sabha. It is the lower and powerful
house of the Union Parliament. It represents the people of India. It is directly elected by all
the people.
I. Composition:
The present membership of the Lok Sabha is 545, out of these 523 are elected by the people
of all Indian States and 20 by the people of the Union Territories. The President
nominates two members of the Anglo- Indian Community to the Lok Sabha. The
maximum membership of the Lok Sabha stands fixed at 552 till the year 2010.
II. Method of Election of the Members of Lok Sabha - The members of the Lok Sabha
are elected on the basis of the following principles:
(a) Universal Adult Franchise:

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Every citizen who has attained the minimum age of 18 years has the right to vote in the
elections to the Lok Sabha. However, it is essential that his name should stand included in the
voters list of his constituency.
(b) Reservation of Seats for SCs and STs:
Some constituencies are reserved for Scheduled Castes and Scheduled Tribes. These are
called Reserved Constituencies. From each reserved constituency only candidates belonging
to SCs or STS, as the case may be, can contest elections.
Presently 131 seats stand reserved (84 for SCs and 47 for STs).
(c) Single Member Territorial Constituencies:
The whole country is divided into as many territorial constituencies as is the number of the
members of the Lok Sabha. to be elected. From each constituency one MP is elected.
(d) Secret Ballot:
The members of the Lok Sabha are elected by secret ballot and no one knows his voting
decision. Now EVMs are being used in recording votes.
(e) Direct Election and Simple Majority Vote Victory system:
All the members of the Lok Sabha are directly elected by the people. Any voter can cast his
vote to elect any candidate of his choice from his constituency. A candidate securing the
largest number of votes from amongst all the contestants from a constituency gets elected as
the representative of the people of his constituency in the Lok Sabha.
III. Qualifications for Membership of the Lok Sabha:
(1) He must be a citizen of India.
(2) He must not be less than 25 years of age.
(3) He must not hold any office of profit in the Government.
(4) He should not have an unsound mind or be a bankrupt.
(5) He should not be a declared offender of a grave crime by any court.
(6) He should possess all such qualifications prescribed by the Parliament.
IV. Tenure:
The normal term of the Lok Sabha is five years. This term can be extended for one year
during an emergency. But fresh elections to the Lok Sabha must be held within six months
of the end of emergency. Further, the President can dissolve the Lok Sabha at any time
when the Prime Minister may advise him or when no party may be in a position to form a
government. In this case also a new Lok Sabha has to be essentially elected within six
months.
V. Sessions:

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The President can call the session of Parliament at any time but the gap between two
meetings of the Parliament cannot be of more than six months. It means in one year, a
minimum of two sessions of the Lok Sabha are essential.
VI. Quorum:
For a meeting of the Lok Sabha the presence of at least 1/10th of its total members is
essential. If 1/10th of the members are not present in a meeting of the Lok Sabha, the
Speaker of the House can adjourn the meeting for lack of quorum.
VII. Presiding Officers of Lok Sabha: Speaker and Deputy Speaker:
The Speaker is the chairman and presiding officer of the Lok Sabha. In its very fastest
meeting, every new Lok Sabha elects one of its members as the Speaker and another one as
the Deputy Speaker. The Speaker presides over the meetings of the Lok Sabha, conducts its
proceedings and maintains discipline and decorum in the House. In his absence these
functions are performed by the Deputy Speaker.
VIII. Privileges of Members:
Lok Sabha MPs enjoy several privileges. They enjoy unrestricted freedom to express their
views in the House. No action can be taken against them for anything said by them in the
House. They cannot be detained for any civil offence during and 40 days before and after the
session of the Lok Sabha.

Powers and Functions of the Lok Sabha:

1. Legislative Powers:
An ordinary bill can become law only after it has been passed by both the Houses of
Parliament. It can be introduced either in the Lok Sabha or the Rajya Sabha. When a bill is
introduced and passed by the Lok Sabha, it is sent to the Rajya Sabha. After it has secured the
approval of Rajya Sabha, it goes to the President for his signature.
Almost 90% of the bills are actually introduced in the Lok Sabha. In case the Rajya
Sabha rejects a bill passed by the Lok Sabha and returns it with or without some
amendments, the Lok Sabha reconsiders the bill.
2. Executive Powers:
For all its work, the Council of Ministers is collectively responsible before the Lok Sabha.
The Leader of the majority in the Lok Sabha becomes the Prime Minister. The ministers
remain in office so long as they enjoy the confidence of majority in the Lok Sabha.

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The Lok Sabha can remove the ministry from office by passing a vote of no- confidence
against it. The Lok Sabha maintains a continuous control over the Council of Ministers. MPs
can ask questions from ministers about their policies and activities of administration. They
can criticise their policies. They can move and adopt several types of resolutions and motions
(adjournment motion, call attention motion, censure motion and no-confidence motion) and
can reject any bill of the government.
3. Financial Powers:
The Lok Sabha has vast financial powers. A money bill can be introduced only in the Lok
Sabha. After having been passed by it, the money bill goes to the Rajya Sabha. Such a bill
can be delayed by the Rajya Sabha for a maximum period of 14 days.
If the Rajya Sabha fails to pass a money bill and 14 days elapse from the date of the
submission of the bill to it, the money bill is deemed to have been passed by both the houses
of Parliament. It is sent to the President for his signature.
4. Judicial Powers:
The Lok Sabha also performs some judicial functions. The impeachment proceedings can
be taken up against the President either in the Lok Sabha or the Rajya Sabha. The
President can be removed from office only when an impeachment resolution is adopted
by each of the two Houses with a 2/3 majority of its members.
The Lok Sabha also investigates the charges prepared by the Rajya Sabha against the
Vice-President of India. The Lok Sabha and the Rajya Sabha can together pass a resolution
for the removal of any judge of the Supreme Court or of a State High Court.
Both the Houses can jointly pass a special address and present it to the President for the
removal of some high officers of the state like the Attorney General, the Chief Election
Commissioner and the Comptroller and Auditor General of India.
5. Electoral Functions:
The Lok Sabha also performs some electoral functions. The elected members of the Lok
Sabha take part in the election of the President. Members of the Lok Sabha and the Rajya
Sabha together elect the Vice-President of India. The members of the Lok Sabha also elect a
Speaker and a Deputy Speaker from amongst themselves.
Some Other Powers of Lok Sabha:
The Lok Sabha and the Rajya Sabha jointly perform the following functions:
(a) Approval of the ordinances issued by the President.
(b) Change of the boundaries of the States. State, creation of new states and change in the
name of any state.

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(c) Changes in the jurisdiction of the Supreme Court and the High Courts.
(d) Changes the qualifications of the members of the Parliament and State Legislatures.
(e) Revising the salary and allowances of the members of Parliament,
(f) The setting up of Joint Public Service Commission for two or more states.
(g) Approval of a Declaration of Emergency.

PRESIDENT - Functions and Powers

PRESIDENT
Indian President is the Head of the state and first citizen of India. He is a part of Union
Executive along with Vice- President, Prime Minister, Council of Ministers, and
Attorney-General of India. Provisions of which are dealt with Article 52-78 including articles
related to President (Article 52-62). Under these articles, information on how a President is
elected, his powers and functions, and also his impeachment process is given. He is the
symbol of solidarity, unity, and integrity of the nation.
How is President elected?
There is no direct election for the Indian President. An electoral college elects him. The
electoral college responsible for President's elections comprises elected members of -
1. Lok Sabha and Rajya Sabha.
2. Legislative Assemblies of the States.
3. Legislative Assemblies of the Union Territories of Delhi and Puducherry.

Who does not take part in the President's elections?

The following group of people is not involved in electing the President of India:
Nominated Members of Lok Sabha (2) and Rajya Sabha (12).
2. Nominated Members of State Legislative Assemblies.
3. Members of Legislative Councils (Both elected and nominated) in bicameral legislatures.
4. Nominated Members of union territories of Delhi and Puducherry.

What is the term of the President's office?

Once President is elected, he holds office for five years. He sits in the office even after
the completion of five years given no new election has taken place or no new President has
been elected till then. He can also be re-elected and there is no cap on his re-election.

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What are the qualifications of the President?
Qualifications of the President are:
Indian Citizen, Age Minimum of 35 years, He should qualify the conditions to be elected as a
member of the Lok Sabha, He should not hold any office of profit under the central
government, state government, or any public authority.
What are the conditions of the President's office?
There are a few conditions for the candidate running for the President's elections:
1. He cannot be a member of Lok Sabha and Rajya Sabha. If he has been a member of either
of the house, he should vacate the seat on his first day as President in the office.
2. He should not hold any office of profit.
3. For his residence, Rashtrapati Bhavan is provided to him without the payment of rent.
4. Parliament decides his emoluments, allowances, and privileges
5. Parliament cannot diminish his emoluments and allowances during his term of office.
6. He is given immunity from any criminal proceedings, even in respect of his personal acts.
7. Arrest or imprisonment of the President cannot take place. Only civil proceedings can be
initiated for his personal acts that too after giving two months of prior notice.

Powers and Functions of the President of India

(A) Executive Powers of President
● For every executive action that the Indian government takes, is to be taken in his name.
● He may/may not make rules to simplify the transaction of business of the central
government.
● He appoints the Attorney General of India and determines his remuneration.
● He appoints the following people - Comptroller and Auditor General of India (CAG),
Chief Election Commissioner and other Election Commissioners, Chairman and members
of the Union Public Service Commission, State Governors, Finance Commission of India
- its Chairman and members.
● He seeks administrative information from the Union government
● He requires PM to submit, for consideration of the council of ministers, any matter on
which a decision has been taken by a minister but, which has not been considered by the
council.
● He appoints National Commissions of Scheduled Castes, Scheduled Tribes and Other
Backward Classes.

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● He appoints administrators of union territories.
● He can declare any area as a scheduled area and has powers with respect to the
administration of scheduled areas and tribal areas.
(B) Legislative Powers of President
● He summons Parliament and dissolve the Lok Sabha.
● He summons a joint sitting of Lok Sabha and Rajya Sabha in case of deadlock.
● He addresses the Indian Parliament at the commencement of the first session after every
general election.
● He appoints speaker, deputy speaker of Lok Sabha, and chairman/deputy chairman of
Rajya Sabha when the seats fall vacant.
● He nominates 12 members of the Rajya Sabha.
● He can nominate two members to the Lok Sabha from the Anglo-Indian Community
● He consults the Election Commission of India on questions of disqualifications of MPs.
● He recommends/ permits the introduction of certain types of bills.
● He promulgates ordinances.
● He lays the following reports before the Parliament:
a. Comptroller and Auditor General
b. Union Public Service Commission
c. Finance Commission, etc.
Financial Powers of President

1. To introduce the money bill, his prior recommendation is a must.

2. He causes Union Budget to be laid before the Parliament.

3. To make a demand for grants, his recommendation is a pre-requisite.
4. Contingency Fund of India is under his control.
5. He constitutes the Finance Commission every five year.
Judicial Powers of President
1. Appointment of Chief Justice and Supreme Court/High Court Judges are on him.
2. He takes advises from Supreme Court however, those advise are not binding on him.
3. He has pardoning power: Under article 72, he has been conferred with power to grant
pardon against punishment for an offense against union law, punishment by a martial court,
or death sentence.
Note: Pardoning powers of the president includes the following types:

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● Pardon with the grant of pardon convicts both conviction and sentence completely
absolved.
● Commutation with this nature of the punishment of the convict can be changed.
● Remission reduces the term of the imprisonment.
● Respite awards lesser punishment than original punishment by looking at the special
condition of a convict.
● Reprieve stays the execution of the awarded sentence for a temporary period.
Diplomatic Powers of President
1. International Treaties and agreements that are approved by the Parliament are negotiated
and concluded in his name.
2. He is the representative of India in international forums and affairs.
Military Powers of President
He is the commander of the defence forces of India. He appoints:
1. Chief of the Army
2. Chief of the Navy, and
3. Chief of the Air Force
Emergency Powers of President
He deals with three types of emergencies given in the Indian Constitution:
1. National Emergency (Article 352)
2. President's Rule (Article 356 & 365); and
3. Financial Emergency (Article 360)
President of America
1. He is the powerful head of state and executive body.
2. President is elected by direct elections by people.
3. The term of the President is 4 years.
4. One person cannot be President for more than two terms. A man or woman can become
President.
5. President appoints own cabinet secretaries for various portfolios. He is similar to the Prime
Minister of India in some ways.
6. President is not a member of the legislature (congress). The congress members, elected
directly by people make the laws. So, the President of USA needs to push his/her
decisions/proposed laws through the congress members in order to pass them as laws.
7. President has a veto power for major decisions made by the congress.
8. President does not dissolve the legislature.

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9. There is no immunity against legal proceedings against the President in either criminal or
civil cases.
10. President of America has a global influence with globally influencing strong
organizations and head offices of strong western allies, located in the USA.
11. President can appoint one fifths of the officials of the administrative services.
12. President initiates and monitors the proceedings of the congress, through the members of
the party to which he/she belongs to.
13. President holds majority of the powers of the federation.
14. He/she can initiate, conclude or continue the economic, financial or other cooperation
between USA and other countries.
15. President has the power to command the military, Air Force or Navy related to war
and peace.

Independence of Judiciary
Independence of judiciary has three meanings:

❖ The judiciary must be free from encroachment from other organs in its sphere. In this

respect, it is called separation of powers. Our Constitution makes the judiciary absolutely
independent.

❖ It means the freedom of the judgments and free from legislative interference.

❖ The decisions of the judiciary should not be influenced by either the

Executive or the Legislature - it means freedom from both, fear and favour
of the other two organs.

Methods to Secure Independence of Judiciary

Sincere efforts have been made to secure the independence of judiciary through the
following methods:
❖ High Qualifications:
Politics in the appointment of judges has been avoided by prescribing high minimum
qualifications for such assignments in the Constitution itself. An aspirant for such an
important office must have been a judge of a High Court, at least for five years or must an
advocate of a High Court be at least for ten years, or be a distinguished jurist.

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❖ Handsome Remuneration Subject to Vote of Legislature:
Every judge is paid a high salary to maintain his status and dignity. During their term of
office, their salaries and allowances cannot be altered to their disadvantage, except in
grave financial emergency. The administrative expenses of the Court are charged on the
Consolidated Fund. Evidently, their salaries and allowances compare favourably with
those of judges in other courts of the world.
❖ Security of Tenure:
The Judges of the Supreme Court enjoy security of tenure. They are not removable
from office except by an order of the President and that only on the ground of
proved misbehaviour or incapacity, supported by a resolution adopted by a majority of
total membership of each House and also by a majority of not less than 2/3 of the
members of that House present and voting.
❖ Lengthy Tenure:
Although the Constitution does not provide for life tenure, the existing provision of 65
years, in effect amounts to nearly the same. A retiring age of 65 is, by Indian standard,
very high, considering the average span of life in India and also the average fitness of
persons for work in old age. Moreover, a retired judge according to Article 128, may be
reappointed a judge by the Chief Justice of India, with the consent of the President.
❖ Oath to Work Fearlessly:
Before assumption of office, the judges have to take an oath to perform their duties
fearlessly and to uphold the Constitution.
❖ No Practice after Retirement:
A retired judge of the Court is prohibited from practising law before any Court of
authority within the territory of India. The Constitution, however, permits the
appointment of a retired judge for a specialized form of work by the Government, for
instance for conducting enquiries and special investigations.
❖ Powers to Make Rules to Regulate their Procedure:
The Supreme Court is equipped with full powers to make rules for regulating its
practice and procedure and to take effective steps for the enforcement of its orders.
❖ Denial of Political Office before or after Retirement:
The judges should not be allowed to hold political office after retirement otherwise
they will have the temptation of creating ground for becoming the political leaders or
gaining some other lucrative office through political Godfathers during their tenure as
judges.

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❖ Appointment by the Executive:
Independence of judiciary to quite a great extent, depends on the method of appointment
of judges. Every judge of the Indian Supreme Court is appointed by the President,
after consultation with such of the judges of the Supreme Court, and the High Courts of
the State, as the President may deem necessary for the purpose. In the appointment of a
judge other than the Chief Justice, the President must consult the Chief Justice.

Appointment of Judges in Indian Judiciary

❖ Judiciary in our country is the main pillar of democracy which helps in the smooth

functioning of democracy.

❖ Judges are the main aspects of the judiciary. It is mandatory that the judges have to be

efficient in order for the judiciary to be successful.

❖ Judges are respected in our country and people have lots of faith and hopes on them, thus

it is necessary to make sure that the appointment of judges is proper and not biased.

Appointment of Judges in the District Courts

Qualifications
Article 233 of the Indian Constitution deals with the appointment of District Judges.
According to this article, there are certain qualifications for a person to be appointed as a
District Judge, they are:
● The person has to be in practice as an advocate for seven years or more.
● The person should not be in working in any other services of the Union or the State.
● The person has to be recommended by the High Court for employment.
Procedure for appointment
According to Article 233, the appointment can be done only after consulting the
Governor of the State and also the Judges of the High Court that is exercising jurisdiction
in the State. Article 235 of the Indian Constitution provides powers to the High Courts to
have control over the persons in the judicial service in the district courts.

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 Appointment of Judges in the High Courts
Qualifications - The qualifications regarding the appointment are provided in Article 217.
● The person appointed must be a citizen of India.
● The person appointed should have held a judicial office in the territory of India for at
least ten years.
● The person appointed should have been an advocate in the High Court for at least ten
years.
Procedure - Article 217 of the Indian Constitution provides the procedure regarding the
appointment of judges in the High Courts.
● The judges of the High Courts can be appointed only by the warrant of the President
and his seal.
● The appointment can be done only after consulting the Chief Justice of India and the
Governor of the State.
● The person can hold the office as a judge until he is sixty-two years old.
● The Judges appointed must take an oath before the Governor of the State according
to Article 219. The oath must be according to the form that is provided for the purpose in
the Third Schedule.

Appointment of Judges in the Supreme Court

Procedure - Article 124 of the Indian Constitution deals with the appointment of Judges of
the Supreme Court. Article 124 of the Constitution says only seven judges can be appointed
in the Supreme Court and the appointment can be increased when the Parliament deems it to
be necessary. The President has the power to appoint Judges after consulting the Chief Justice
of India, the other Judges of the Supreme Court and also in certain cases other judges of the
High Court.
Qualification - Article 124 of the Indian Constitution provides various qualifications which
have to be satisfied for the appointment.
● The recommended person must be a citizen of India.
● They should not be above 65 years of age.

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● They must have been a judge of one or more High courts continuously for five years.
● They must have been an advocate in the high court for at least ten years.
● The recommended person must be a distinguished jurist in the opinion of the
President.

Appointment of acting Chief Justice and Ad-Hoc judges

Article 126 of the Indian Constitution deals with the appointment of acting Chief
Justice. The President can appoint other judges of this court as acting Chief Justice when the
office of Chief Justice is vacant or they are unable to perform their duties due to various
issues like health issues.
Article 127 deals with the appointment of Ad Hoc judges. Ad Hoc judges can be
appointed in various situations like when the quorum of the Judges of the Supreme Court are
not available to hold or continue any session of the Court, then it is the duty of the Chief
Justice to appoint Ad hoc judges with the consent of the President of India.

Judicial Review
Judicial Review refers to the power of the Judiciary to review and determine
the validity of a Law or an Order.
✔ Judicial Review is defined as the doctrine under which executive and legislative actions
are reviewed by the judiciary.

✔ Judicial Review is the power of the courts to consider the constitutionality of acts of

organs of Government and declare it unconstitutional if it violates or is inconsistent with

the basic principles of the Constitution.

✔ This means that the power of the legislature to make laws is not absolute and that the

validity and constitutionality of such laws are subject to review by the courts.
Judicial Review and Constitution
According to Article 13(2), the Union or the States shall not make any law that
takes away or abridges any of the fundamental rights, and any law made in contravention of
the aforementioned mandate shall be void.

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✔ Judicial review is called upon to ensure and protect Fundamental Rights which

are guaranteed in Part III of the Constitution.

✔ The power of the Supreme Court of India to enforce these Rights is derived from

Article 32 of the Constitution. This provides citizens the right to directly approach the SC to
seek remedies against the violation of Fundamental Rights.

Judicial Review Classification

Three categories.
1. Reviews of Legislative Actions - This review implies the power to ensure that laws passed
by the legislature are in compliance with the provisions of the Constitution.
2. Review of Administrative Actions - This is a tool for enforcing constitutional discipline
over administrative agencies while exercising their powers.
3. Review of Judicial Decisions - This is seen in the Golaknath case, bank nationalisation
case, Minerva Mills case, privy purse abolition case, etc.
Examples of Judicial Review - IT Act, Section 66(A)
In 2015, the Supreme Court struck down Section 66(A) of the amended Information
Technology Act, 2000. This provided the punishment for sending "offensive" messages
through a computer or any other communication device like a mobile phone or a tablet. A
conviction could fetch a maximum of three in jail and a fine. This was repealed by the SC on
the grounds that this section fell outside Article 19(2) of the Constitution, which relates to
freedom of speech.

Judicial Activism
The judiciary plays an important role in upholding and promoting the rights of citizens in a
country. The active role of the judiciary in upholding the rights of citizens and
preserving the constitutional and legal system of the country is known as Judicial
Activism. This involves, sometimes overstepping into the territories of the executive.
Judicial Activism Methods
There are various methods of judicial activism which are followed in India. They are:

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✔ Judicial review (power of the judiciary to interpret the constitution and to declare any

such law or order of the legislature and executive void, if it finds them in conflict with the
Constitution).

✔ Public Interest Litigation (PIL).

✔ Constitutional interpretation.

✔ Supervisory power of the higher courts on the lower courts.

Significance of Judicial Activism

It is an effective tool for upholding citizen's rights and implementing constitutional
principles when the executive and legislature fails to do so.
● Citizens have the judiciary as the last hope for protecting their rights when all other doors
are closed. The Indian judiciary has been considered as the guardian and protector of the
Indian Constitution.
● There are provisions in the constitution itself for the judiciary to adopt a proactive role.
Article 13 read with Articles 32 and 226 of the Constitution provides the power of
judicial review to the higher judiciary to declare any executive, legislative or
administrative action void if it is in contravention with the Constitution.

PRIME MINISTER - Functions and Powers

The Prime Minister is the real executive authority of the country. He appoints many officers
as the head of many constitutional institutions.
There is no special process for the election of the Prime Minister in the Constitution of India.
Article 75 only says that India shall have a Prime Minister whose appointment shall be made
by the President. The Prime Minister is the leader of the Council of Ministers. The President
is the nominal ruler while the real executive is the Prime Minister.
The main functions of Prime Minister related to the Council of Ministers are as follows:
1. The Prime Minister recommends the names of members of his team to appoint as a
Minister. The President can only make those people as ministers whose names are
recommended by the Prime Minister.

18
2. Prime Minister determines which department will be given to which minister and he can
also change the allotted department of any Minister.
3. He also presides over the meeting of the Council of Ministers and can change the decisions
according to his wishes.
4. He can ask any minister to resign or advise the President to dismiss him in case of
differences of opinion.
5. He also controls and directs the activities of all Ministers.
6. He can bring about the collapse of the Council of Ministers by resigning from office.
Note: If the Prime Minister resigns from his post or dies, then other ministers can't do any
work, which means the Council of Ministers dissolves itself with the death/resignation of the
Prime Minister.
Rights in relation to appointments:
The Prime Minister has the right to give advice to the President in relation to the
appointment of the following officers: The Comptroller and Auditor General of India,
Attorney-General of India, Solicitor General of India, President of the Union Public Service
Commission and its members, Election Commissioners, Chairman and Members of the
Finance Commission.
Rights in the context of Parliament:
The Prime minister is the leader of the lower house of Parliament and he enjoys the
following powers.
1. He advises the President with regard to summoning and proroguing of the sessions of the
parliament.
2. He can recommend the dissolution of the sessions of the Parliament.
3. He declares government policies on the floor of the house.
Other powers of the Prime Minister:
1. He plays an important role in shaping the foreign policy of the nation.
2. He is the chief spokesman of the Central Government.
3. He is the leader of the ruling party.
4. He is ex-officio Chairman of the NITI Aayog, National Development Council, National
Integration Council, Inter-State Council and National Water Resources Council.
5. He is the crisis manager-in-chief at the political level during emergencies.
6. He is the political head of the armies.
Relation to the President of India The relationship between the President and the Prime
Minister is given in the following two articles.

19
1. Article 74: There shall be a Council of Ministers to help and advise the President of India.
The President shall work as per the instructions given by the Prime Minister but the President
has the power to request the council of the minister to reconsider the advice. Although the
President is bound to work as per the advice given after the reconsideration.
2. Article 75:
a. The President will appoint the Prime Minister and other ministers shall be appointed by the
President on the advice given by the Prime Minister.
b. The Ministers can remain on his post till the pleasure of the President.
c. The Council of Ministers shall be collectively responsible to the Lok Sabha.
Prime Minister's Duties:
1. Submit the report of all the affairs of the Council of Ministers to the President.
2. Give full information to the President regarding any emergency situation or any sudden
development in the foreign policy.
3. Inform the President on all the decisions of the Council of Ministers related to the activities
and administration of the Union.
Thus, it can be said that in the Parliamentary system of India, the President is the only
nominal Executive Chief and the actual executive powers are contained in the Prime
Minister.

Public Interest Litigation (PIL)

A Public Interest Litigation (PIL) is introduced in a court of law by a private party or by
the court itself. When there is a question of public interest then a writ petition may be filled
by someone even though he may not be directly involved in that matter.
Thus, the expression Public Interest Litigation means a legal action initiated in a court of
law for enforcement of public interest.
● PILs have become effective tool for enforcing the legal obligation of the executive and
the legislature.
● The chief objective behind PILS is ensuring justice to all and promoting the welfare of
the people.
● It is generally used to safeguard group interests and not individual interests.
● The Supreme Court of India and the High Courts have the right to issue PILS.

20
● PILs have been responsible for some landmark judgements in India such as the banning
of the instant triple talaq, opened up the doors of the Sabarimala and the Haji Ali shrines
to women, legalised passive euthanasia etc.

Procedure to File PIL in India

Any Indian citizen or organisation can move the court for a public interest/cause by
filing a petition:
1. In the Supreme Court under Article 32.
2. In the High Courts under Article 226.
The court can treat a letter as a writ petition and take action on it. The court has to be
satisfied that the writ petition complies with the following: the letter is addressed by
the aggrieved person or a social action group for the enforcement of legal or
constitutional rights to any person who, upon poverty or disability, are not able to
approach the court for redress. Even, a letter, post card, newspaper report or email
addressed to the Supreme Court by a person, acting in public interest has been
accepted as a petition.

Significance of Public Interest Litigation (PIL) in India

⮚ The original purpose of PILS has been to make justice accessible to the poor.

⮚ It is an important tool to make human rights reach those who have been denied

rights.

⮚ It democratises the access of justice to all. Any citizen/agency who is capable can

file petitions on behalf of those who cannot or do not have the means to do so.

⮚ It helps in judicially monitoring state institutions like prisons, asylums, protective

homes, etc.

⮚ It is an important tool in judicial review.

History of Public Interest Litigation (PIL) in India

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1. Hussainara Khatoon v. State of Bihar - Many have regarded this case as the first PIL
in India as well. In 1979, Kapila Hingorani filed a petition and secured the release of almost
40000 undertrials from Patna's jails in the famous Hussainara Khatoon case. Hingorani was a
lawyer. This case was filed in the SC before a Bench led by Justice P N Bhagwati. The court
permitted Hingorani to pursue a case in which she had no personal locus standi making PILS
a permanent fixture in Indian jurisprudence.
2. M.C. Mehta v. Union of India - The judgment delivered on January 12, 1988, lashed out
at civic authorities for allowing untreated sewage from Kanpur's tanneries to make its way
into the Ganges. The court passed three landmark judgments and a number of Orders against
polluting industries, numbering more than 50,000 in the Ganga basin, from time to time. In
this case, apart from industries, more than 250 towns and cities also had to set up sewage
treatment plants.

Governor - Power, Tenure, Qualifications, Appointment

The State executive is made up of the Governor, Chief Minister, Council of Ministers, and
Advocate- General of State. Governor heads the State government. Article 153-167 in the
Indian Constitution deal with the provisions related to the State governments of the country.
Governor is a nominal head or constitutional head.
Who is a Governor?
Governor is a nominal executive head of the state. He forms an important part of the state
executive where he acts as the chief executive head. Central Government nominates the
Governor for each state.
How is a Governor Appointed?
The Indian President appoints Governor for each State by seal. Central Government
nominate the governor for each state. There is no direct or indirect election for the post of
Governor. The office of a governor is not a part of the union executive and is an independent
constitutional office. The nomination of a Governor by the Union and his appointment
by the President in India is based on the Canadian model of government.
What is the term of the Governor's office?
Since the Governor holds the office under the pleasure of the President, his office has no
fixed term. President can remove the Governor. Governor may also get transferred from
one State to another by the President. He also can be reappointed.
Who is qualified to become a Governor?
Governor has to meet only two qualifications:

22
1. He should be an Indian Citizen.
2. He should be 35 years old or more.
Note: There are two conventions that the government follow before nominating a person as
a Governor:
1. That person is not appointed as the governor who belongs to the state. He shall be an
outsider having no relation with the state he is being appointed to.
2. Consultation of the Chief Minister is taken by the President before appointing a Governor.
What are the conditions of his office?
There are a few conditions for a person to be appointed as a Governor:
1.He cannot be a member of Lok Sabha and Rajya Sabha. If he has been a member of
either of the house, he should vacate the seat on his first day as Governor in the office.
2.He should not hold any office of profit.
3.For his residence, Raj Bhavan is provided to him without the payment of rent.
4. Parliament decides his emoluments, allowances, and privileges.
5. When a governor is responsible for two or more states, the emoluments and allowances
payable to him are shared by the states in such proportion as the President may determine.
6. Parliament cannot diminish his emoluments and allowances during his term of office.
7. He is given immunity from any criminal proceedings, even in respect of his personal acts
8. Arrest or imprisonment of the Governor cannot take place. Only civil proceedings can be
initiated. for his personal acts after giving two months of prior notice.
Executive Powers of the Governor
The following comes under his executive powers:
1. Every executive action that the state government takes, is to be taken in his name.
2. Chief Ministers and other ministers of the states are appointed by him. He also appoints
Tribal Welfare Minister in the states of Chhattisgarh, Jharkhand, Madhya Pradesh, Odisha.
3. He appoints the Advocate General of states and determines their remuneration.
4. He also appoints the State Election Commissioner, Chairman and Members of the State
Public Service Commission, Vice-Chancellors of the Universities in the state.
5. He seeks information from the State government.
6. A constitutional emergency in the State is recommended to the President by him.
7. The governor enjoys extensive executive powers as an agent of the President during the
President's rule in the state.
Legislative Powers of the Governor
The following are the legislative powers of the governor:

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1.He has power to postpone the State legislature and dissolve the state legislative assemblies.
2.He addresses the State legislature at the first session of every year.
3. If any bill is pending in the State legislature, Governor may/may not send a bill to the state
legislature concerning the same.
4.If the speaker of the legislative assembly is absent and the same is Deputy Speaker, then
Governor appoints a person to preside over the session.
5. As President nominates 12 members in Rajya Sabha, Governor appoints % of the total
members of the legislative council from the fields of Literature, Science, Art, Social Service.
6. Governor nominates 1 member in State legislative assembly from Anglo-Indian
Community.
7. With respect to the bill introduced in the state legislature, he can Give his assent, withhold
his assent, Return the bill, Reserve the bill for the President's consideration.
Financial Powers of the Governor
The following are the financial powers and functions of the Governor:
1. He looks over the state budget being laid in the state legislature.
2. His recommendation is a prerequisite for the introduction of money bill in the
state legislature.
3. He recommends for the demand for grants which otherwise cannot be given.
4. Contingency Fund of State is under him and he makes advances out that to meet
unforeseen expenditure.
5. State Finance Commission is constituted every five years by him.
Judicial Powers of the Governor
The following are the judicial powers and functions of the Governor:
1.President consults the Governor while appointing judges of High Court.
2. In consultation with the State High Court, Governor makes appointments, postings, and
promotions of the district judges.
3. In consultation with the state high court and state public service commission, he also
appoints persons to the judicial services.
The Governor can pardon, grant a reprieve, a respite, suspend or commute the punishment of
any person convicted of any offense against state law. The Governor cannot, however, pardon
a death sentence. Only suspend or remit is allowed. Only the President has the power to
pardon a death sentence.

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 Lokpal and Lokayukta Act, 2013
⮚ Lokpal and Lokayukta are India's anti-corruption ombudsman at centre and

state levels respectively, to look into corruption charges against certain categories
of public servants.

⮚ They are not constitutional bodies but derive their powers from the act enacted in

2013- the Lokpal and Lokayuktas Act.

⮚ Lokpal and Lokayuktas Act, 2013 provides for the appointment of a Lokpal at the

Centre and Lokayuktas in States, its structure, jurisdiction and powers.

⮚ The Lokpal act also called upon states to appoint a Lokayukta within a year of it's

coming into force.

History
⮚ In 1966, the First Administrative Reforms Commission recommended the setting up of

two independent authorities - at the central and state level.

⮚ Lokpal bill was passed in Lok Sabha in 1968 but it lapsed with its dissolution. Several

attempts were made since then to pass the bill.

⮚ Later, the Commission to Review the Working of the Constitution and the Second

Administrative Reforms Commission also recommended its establishment.

⮚ The United Progressive Alliance (UPA) government was successful in getting the Lokpal

and Lokayuktas Bill, 2013, passed in both the Houses of Parliament after being pressured
by the "India Against Corruption movement" led by Anna Hazare.

About Lokpal
● Lokpal consists of one chairperson and a maximum of 8 members.
● Chairperson of the Lokpal should be either the former Chief Justice of India or the
former Judge of the Supreme Court or an eminent person with outstanding ability,

25
 having special knowledge and expertise of minimum 25 years in the matters relating
to anti-corruption policy, public administration, vigilance, finance including insurance
and banking, law and management.
● Half of the members should be judicial members (former Judges of the Supreme
Court or a former Chief Justice of the High Court) and 50% of the members should
be from SC/ST/OBC/ Minorities and women.
● The non-judicial member should be an eminent person with outstanding ability,
having special knowledge and expertise of minimum 25 years in the matters relating
to anti-corruption policy, public administration, vigilance, finance including insurance
and banking, law and management.
Term of Office - The term of office for Lokpal Chairman and Members is 5 years or till the
Age of 70 years.

Appointment
The members are appointed by the President on the recommendation of a Selection
Committee.
Selection Committee - The selection committee is composed of
● The Prime Minister who is the Chairperson;
● Speaker of Lok Sabha,
● Leader of Opposition in Lok Sabha,
● Chief Justice of India or a Judge nominated by him/her and
● One eminent jurist.
For selecting the chairperson and the members, the selection committee constitutes a search
panel of at least eight persons. Lokpal Search Committee would shortlist the names prepared
by the Department of Personnel and Training (DOPT) and place then before the Selection
panel.
Conditions of Office
● The Salary allowances and other conditions of service of the chairperson and members
are equivalent to that of Chief Justice of India and Judge of the supreme court
respectively.
● They are not eligible for reappointment, cannot hold any constitutional or governmental
office.
● They cannot contest any elections for a period of 5 years.
Jurisdiction of Lokpal - It includes

26
● The Prime Minister, except on allegations of corruption relating to international relations,
security, atomic energy and space.
● Ministers and members of Parliament.
● Groups A, B, C and D officers.
● Officials of Central Government.
● Any person who is or has been in charge (director/ manager/ secretary) of anybody/
society set by central act or any other body financed/ controlled by the central
government and any other person involved in an act of abetting, bribe giving or
bribe-taking up.

Powers of Lokpal
● It has Superindence over the Central Bureau of Investigation and can give directions
to it. If a case is referred to CBI by Lokpal, the investigating officer in such a case
cannot be transferred without the approval of Lokpal.
● Lokpal will have an Inquiry Wing and Prosecution Wing. The Inquiry Wing has
the powers of a Civil Court.
● It can confiscate assets, proceeds, receipts and benefits arisen or procured by means
of corruption in special circumstances.
● It can transfer or suspend public servants connected with allegations of
corruption.
● It has the power to give directions to prevent the destruction of records during the
preliminary inquiry.

Functioning
● A complaint can be made to the Lokpal for an offence under the Prevention of Corruption
Act.
● The Lokpal may order a primary inquiry by its Inquiry Wing or refer it any investigation
agency like CBI.
● With respect to Central Government Servants, it may refer cases to the Central Vigilance
Commission.
● Preliminary Enquiry report should be done within 60 days.

27
● A Lokpal bench of not less than 3 members considers it and after giving an opportunity to
the public servant, decides on a further investigation - it may dismiss, initiate a full
investigation or start departmental proceedings.
● The primary investigation should be normally completed within 90 days.
● The trials will be held in special courts, which must complete them within one year.
● Extensions can be made but the total period cannot exceed two years.

The Lokpal and Lokayuktas (Amendment) Act, 2016

● The Bill amends the Lokpal and Lokayuktas Act, 2013 in relation to the declaration of
assets and liabilities by public servants.
● The Lokpal Act requires a public servant to declare his assets and liabilities, and that of
his spouse and dependent children. Such declarations must be made to the competent
authority within 30 days of entering the office.

Chief Minister - Appointment, Powers and Functions

Chief Minister is the real executive of the State Government.
Appointment of Chief Minister
Our constitution does not specifically mention about the qualification to be appointed as
Chief Minister (CM). Article 164 of the Constitution says that the Chief Minister shall be
appointed by the Governor. However, this does not imply that the governor is free to
appoint anyone as the Chief Minister of the state or UT.
Powers and functions of the Chief Minister
With respect to Council of ministers - The following are the powers of CM with respect to
State council of Ministers -
1) He advises the Governor to appoint ministers.
2) Allocation and reshuffling of portfolios among ministers.
3) In case of difference of opinion; he can ask minister to resign.
4) Directs, guides and controls activities of all the ministers.
5) If the Chief Minister resign then full cabinet has to resign.
With respect to Governor -

28
Under Article 167 of our constitution: The Chief Minister acts as a link between
Governor and state council of ministers. The functions with respect to the Governor are as
follows:
1) CM has to communicate to the Governor all the decisions of the council of
ministers relating to the administration of the states.
2) Whenever the Governor calls for any information relating to the decisions taken or
regarding the administration, the CM has to provide him the same.
3) The Governor can ask for consideration of council of ministers when a decision has been
taken without the consideration of the cabinet.
4) CM advises Governor regarding the appointment of important officials like Attorney
General, State Public Service Commission (Chairman and Members), State Election
Commission etc.
With Respect to State Legislature -
1) All the policies are announced by him on the floor of the house.
2) He recommends dissolution of legislative assembly to the Governor.
3) He advises the Governor regarding summoning, proroguing the sessions of State
Legislative Assembly from time to time.
Other Functions
1) He is the authority to be in contact with the people regularly and know about their
problems so as to bring about policies on the floor of the assembly.
2) He acts as the chairman of State Planning Commission.
3) He is the vice chairman of concerned zonal council in rotation for a period of one year.
4) During emergencies he acts as the crisis manager in the state.
5) He is the leader of the MLAs elected by the general public of the state.

THE COUNCIL OF MINISTERS

The Council of Ministers in the State is Constituted and functions in the same way as the
Union Council of Ministers.
Article 154 - Executive power of State: The executive power of the State shall be vested in
the Governor and shall be exercised by him either directly or through officers subordinate to
him in accordance with this Constitution.
Article 163- Council of Ministers to aid and advise Governor: There shall be a Council of

29
Ministers with the Chief Minister as the Head to aid and advise the Governor in the exercise
of his functions.
Article 164 - The Chief Minister is appointed by the Governor. The person who commands
the majority support in the State Legislative Assembly (Vidhan Sabha) is appointed as the
Chief Minister by the Governor. The other Ministers included in the Council of Minister must
belong to either House of the State legislature. The portfolios to the members of the Council
of Ministers are allocated by the Governor on the advices of the Chief Minister.
Other provision of Article 164 in simplified manner as below:
1A) Provision for tribal ministers in some states: In the States of Chhattisgarh, Jharkhand,
Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in
addition be in charge of the welfare of the Scheduled Castes and backward classes or any
other work.
1B) Strength of ministers: The total number of Ministers, including the Chief Minister, in
the Council of Minister in a State shall not exceed fifteen per cent of the total number of
members of the Legislative Assembly of that State. Number of Ministers including the
Chief Minister in a State shall not be less than twelve.
2) Collective responsibility: The Council of Ministers shall be collectively responsible to
the Legislative Assembly of the State.
3) Oath: Before a Minister enters upon his office, the Governor shall administer to him the
oaths of office and of secrecy.
4) Condition of becoming a member of legislature: A Minister who for any period of six
consecutive months is not a member of the Legislature of the State shall at the expiration of
that period cease to be a Minister.
5) Salaries: The salaries and allowances of Ministers shall be such as the Legislature of the
State may from time to time determines by laws.
Term of Council of Ministers - The Council of Ministers holds its office during the
pleasure of the Governor. It has no fixed term of office. The term of the Council of
Ministers depends on the support of the majority members of the Legislative Assembly. If it
loses majority support in the legislative Assembly, it has to resign. The Governor may also
remove a Minister from the council of Ministers on the advice of the Chief Minister.

State Legislature
Article 168-212

30
Part VI of the Constitution is concerned with the State Legislature. It comprises state
legislature and executives. Articles 168 to 212 in Part VI of the Constitution deal with the
organisation, composition, duration, officers, procedures, privileges, powers of the state
legislature.
Bicameral and Unicameral States
In some of the States, the Legislature shall consist of two Houses - the Legislative Assembly
and the Legislative Council. While in the rest of the states, there shall be only one House -
Legislative assembly.
The constitution provides for the abolition of the second chamber in a state where it exists as
well as for the creation of such a chamber in a state where there is none at present. The State
Legislature which has only one House is known as the Legislative Assembly (Vidhan Sabha)
and in the State which has two houses, the Upper House is known as the Legislative Council
(Vidhan Parishad) and the lower House is known as the Legislative Assembly (Vidhan
Sabha). The States having two Houses are Bihar, Maharashtra, Karnataka, Andhra
Pradesh, Telangana and Uttar Pradesh.
Legislative Assembly - The Legislative Assembly is the popularly elected chamber and is
the real Centre of power in a State. The maximum strength of an assembly must not
exceed 500 or its minimum strength fall below 60. But some of the States have been
allowed to have smaller Legislative Assemblies, e.g. Sikkim, Arunachal Pradesh, Goa, etc.
The territorial constituencies demarcation should be done as far as possible, such that the
ratio between the population of each constituency and the number of seats allotted to it is the
same all over the State. Apart from these general provisions, there are also special provisions
with respect to the representation of SC and ST. In case the Governor feels that the
Anglo-Indian community is not adequately represented, he can nominate one member of that
community to the assembly.
Legislative Council - The Legislative Council of a State Comprises not more than one-third
of the total number of members in the Legislative Assembly of the State and in no case less
than 40 members. The system of the composition of the Council as provided for in the
Constitution is not final. The final power is given to the Parliament of the Union.
Duration of Legislative Assembly & Legislative Council
The duration of the Legislative Assembly is five years. The Governor has the power to
dissolve the Assembly even before the expiry of its term. The period of five years, may, while
a proclamation of emergency is in operation, be extended by the Parliament by law for a
period not exceeding one year at a time.

31
Legislative Council will be a partly nominated and partly elected body, the election being an
indirect one and in accordance with the principle of proportional representation by the single
transferable vote. Unlike the Legislative Assembly, the Legislative Council is not subject to
dissolution. It is a permanent body unless abolished by the Legislative Assembly and
Parliament by the due procedure. But no person can be a permanent member of the Council
as one-third of the members of the Council retire on the expiry of every second year. It
amounts to a term of six years for each member.
The members being drawn from various sources. Broadly speaking 5/6 of the total number
of members of the Council shall be indirectly elected and 1/6 will be nominated.
(a) One-third of the total number of members of the Council would be elected by electorates
consisting of members of local bodies like the municipalities and the district boards.
(b) One-twelfth of the members are elected by electorates comprising of graduates of the
standing of three years dwelling in that particular state.
(c) One-twelfth of the members are elected by electorates consisting of teachers who have
been in the teaching profession for at least 3 years in educational institutes in that state, which
are not lower than secondary schools in the standard.
(d) One-third are elected by members of the Legislative Assembly from amongst people
who are not Assembly members.
(e) The rest would be nominated by the Governor from persons having knowledge or
practical experience in matters like science, literature, cooperative movement, art and social
service.
Qualifications of Members of Legislative Assembly
A person shall be qualified to be selected to occupy a seat in the Legislature of a State if
(a) He is an Indian citizen.
(b) His age is 25 years or above for Legislative Assembly, and 30 or above for Legislative
Council.
(c) He possess such other qualifications as may be prescribed by the Parliament.
Facts about Speaker & Deputy Speaker:
1. The duties and powers of the Speaker are almost similar to the Speaker of the Lok Sabha.
2. He may resign his office at any time.
3. A speaker may be removed from office by a resolution of the Assembly passed by a
majority of all the then members of the Assembly after fourteen day's notice of the intention
to move such a resolution.
4. Speaker does not vacate his office on the dissolution of the Assembly.

32
5. He continues to be the Speaker until immediately before the first sitting of the Assembly
after the dissolution.
6. While the office of the Speaker is vacant, the Deputy Speaker performs his duties.
Facts about Chairman & Deputy Chairman:
1.The Council chooses from amongst its members a Chairman and a Deputy Chairman.
2.They may be removed by a resolution of the Council passed by a majority of all the
members of the Council, provided fourteen day's notice to move such resolution of removal
has been given.
3. The Chairman presides at all sittings of the Council and in his absence the Deputy
Chairman.
4.While the office of the Chairman is vacant, the duties of his office are performed by the
Deputy Chairman. If the office of the Deputy Chairman is also vacant, such member of the
Council as the Governor may appoint shall perform all such duties connected with the office
of the Chairman.
Powers & Functions of State Legislature
The functions of the state's Legislative Council are only advisory in nature. If any Bill is
passed by the Legislative Assembly and sent to the Council, and the Council refuses to give
its approval, then the Assembly has the right to reconsider it. The assembly may pass it with
or without the amendments proposed by the Council, and again send it to the Council. When
a bill approved by the Assembly is sent to the Council for the first time, it may retain it for
three months, but in the case when it is sent for the second time and is kept in the
Council for one month only. In the case of Money Bills, the State Assembly's powers are the
same as those of the Lok Sabha.
(1) All the LC can do is delay the passing of a money bill by 14 days, a non-money bill by 3
months or a non-money bill that is sent back to it with recommendations by 1 month.
(2) There is no provision in the Constitution for a joint sitting of the State Legislature. It is to
be noted that while the Vidhan Sabha can override the Vidhan Parishad, the vice versa is
never possible.
(3) The LC members do not participate in the election of the President of the country.
They do not have any meaningful role in a constitutional amendment.
The Legislature of a State implies its Legislative Assembly which possesses the following
major powers and functions:

33
(1) It can create laws on any subject in the State List; it can also create laws on the
Concurrent List provided the law does not contradict or conflict any law already made by the
Parliament.
(2) The Assembly asserts control over the Council of Ministers. Assembly members can
question the ministers, move motions and resolutions, and also pass a vote of censure in order
to dismiss the state government.
(3) The Assembly controls the State's finances. A money Bill can emerge from the
Assembly and it is considered passed by the Legislative Council after a lapse of fourteen days
after reference made to it by the Sabha. It could reject or pass the grants or reduce their
amount indicating rejection or adoption of the budget and hence, implying victory or defeat
of the State Government.
(4) The Assembly has constituent powers. With reference to Article 368, certain Bills of
Constitutional amendment after being passed by the Parliament would be referred to the
States for the process of ratification. In these cases, the Vidhan Sabha has a role to play. It
should give its judgement by passing a resolution by a simple majority indicating approval or
disapproval of the said Bill.
Some other powers of the State Assembly are as under:

▪ It elects its Speaker as well as Deputy Speaker. It can also remove them by a

no-confidence vote.

▪ It participates in the election of India's President.

▪ It also considers reports presented by agencies such as the Auditor-General, State Public

Service Commission, and others.

Limitations on the powers of State Legislature
● Certain types of Bills cannot be moved in the State Legislature without the previous
sanction of the President of India.
● Certain Bills passed by the State Legislature cannot become operative until they receive
the President's assent after having been reserved for his consideration by the Governor.
● The Constitution empowers Parliament to frame laws on subjects included in the State
List if the Council of States declares that it is necessary and expedient in the national
interest that Parliament should Legislate on these subjects.

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● Parliament can exercise the power to make laws for the whole or any part of the territory
of India with respect to any of the matters enumerated in the State List, while a
Proclamation of emergency is in operation.

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