Class –B.A.LL.B (HONS.) II SEM.

Subject – Constitution

UNIT-IV
UNION EXECUTIVE, LEGISLATURE AND JUDICIARY

1. UNION EXECUTIVE – THE PRESIDENT, VICE-PRESIDENT

2. UNION LEGISLATURE – COUNCIL OF MINISTERS
3. UNION JUDICIARY – SUPREME COURT
4. RIGHT TO CONSTITUTIONAL REMEDIES

UNION EXECUTIVE: PRESIDENT, VICE PRESIDENT

The Union Executive broadly covers the President, Council of Ministers and the Prime
Minister. Under the Indian Constitution, the President of India enjoys a unique position. President is
the head of the Union Executive. Article 52 creates the position of the President. The President of
India is the head of state of the Republic of India. He is considered to be above party politics and is not
a member of any political party.
The President is the first citizen of the country and formal head of
the executive, legislature and judiciary of India. He is also the commander-in-chief of the Indian
Armed Forces. He represents sovereignty of the country. He is elected by the elected representatives
of the people.

POSITION OF THE PRESIDENT UNDER INDIAN CONSTITUTION

Article 52 provides that there shall be a President of India and Article 53 provides that the
executive powers of the Union shall be vested in the President of India and shall be exercised either
directly or through officers subordinate to him in accordance with the Constitution. Thus President of
India is bound to act in accordance with the Constitution.
Also, Article 74 of the Constitution provides that there shall be Council of Ministers with the
Prime Minister at the head to aid and advice the President of India. Thus, a question arises what does
aid and advise mean? Can President of India refuse or disallow or disregard the advice tendered or
given by the Council of Ministers to the President? As Article 75 (3) provides, the Council of Ministers
shall be collectively responsible to the House of the People. In Parliamentary form of Government,
Council of Ministers is responsible to the Lok Sabha. Similarly, if President does not act in accordance
with the Constitution then there is provision for his impeachment. Under Article 368, a provision has
been made that if any Amendment Act has been passed in order to amend the Constitution, the
President shall have to sign it. It is very clear from all the above provisions that President cannot go
against the wishes of the Council of Ministers as headed by the Prime Minister. He is said to be a
puppet in the hands of Prime Minister.

DUTIES OF THE PRESIDENT

The primary duty of the President is to preserve, protect and defend the Constitution and the
law of India as made part of his oath (Article 60). He is liable for impeachment for violation of the
Constitution (Article 61).
The Constitution of India envisages a parliamentary Government in India. Part V of the
Constitution of India deals with the office of the President of India. Although Article 53 of the

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Constitution says that the executive power of union shall be exercised by the President either directly
or through officers sub-ordinate to him.
In practice the President has to abide by the decisions of the council of ministers with the Prime
Ministers at the head. Our Constitution is a harmonious blend of the political systems of the U.S.A. and
the U.K. The President merely represents the nation, he does not rule.
QUALIFICATIONS TO BE ELECTED A PRESIDENT
The candidate-
(a) Should be a citizen of India;
(b) Should be of not less than 35 years of age;
(c) Should be qualified for elections as a member of the House of people; and
(d) Should not hold any office of profit under the Government of India or any state Government or
any local authority subject to the control of any of these Government;
(e) Must not be a member of the parliament.

ELECTION OF THE PRESIDENT

The founding fathers of the Constitution did not provide for the popular election of the President.
Article 54 of the Indian Constitution provides for the election of the President of India.
The President of India is elected by indirect election that is by an electoral college through secret
ballot, in accordance with the system of proportional representation by means of the single
transferable vote.
As far as practicable, there shall be uniformity of representation of the different states at the election,
according to the population and the total number of elected members of the Legislative Assembly of
each state, and party shall also be maintained between the State as a whole and the Union (Article 55).
Electoral College which elects President consists of-
 Elected members of both the Houses of Parliament (does not include nominated members)
 Electoral college which elects the President consists of elected MP s and elected MLA s at the
state level
 MLA s of National Capital Territory of Delhi and the Union territory of Pondicherry are also
included

SINGLE TRANSFERABLE VOTE

The election of the President is held through single transferable vote system of proportional
representation. Under this system names of all the candidates are listed on the ballot paper and the
elector gives them numbers according to his/her preference. Every voter may mark on the ballot
paper as many preferences as there are candidates. Thus the elector shall place the figure 1 opposite
the name of the candidate whom he/she chooses for first preference and may mark as many
preferences as he/she wishes by putting the figures 2, 3, 4 and so on against the names of other
candidates. The ballot becomes invalid if first preference is marked against more than one candidate
or if the first preference is not marked at all.
As far as practicable, there shall be uniformity in the scale of representation of the different
States at the election of the President. For the purpose of securing such uniformity among the States
'inter se' as well as parity between the States as a whole and the Union, the number of votes which
each elected member of Parliament and of the Legislative Assembly of each State is entitled to cast at
such election shall be determined in the following manner-

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(a) Every elected member of the Legislative Assembly of a State shall have as many votes as there
are multiples of one thousand in the quotient obtained by dividing the population of the State
by the total number of the elected members of the Assembly;
(b) if, after taking the said multiple of one thousand; the remainder is not less than five hundred
than the vote of each member referred to in sub-clause (a) shall be further increased by one;
(c) Each elected member of either House of Parliament shall have such number of votes as may be
obtained by dividing the total number of votes assigned to the members of the Legislative
Assemblies of the States under sub-clause (a) and (b) by the total number of the elected
members of both Houses of Parliament, fractions exceeding one-half being counted as one and
other fractions disregarded.

The election of the President shall be held in accordance with the system of proportional
representation by means of the single transferable vote and the voting at such election shall be by
the secret ballot. In this Article, the expression "population" means the population as ascertained at
the preceding census of which the relevant figures have been published. [Article 55]
Conditions of President s office - Article 59 of the Constitution lays down the conditions-
(a) The President cannot be a member of either of House of Parliament or State Legislature when
holding the office of President.
(b) The President cannot hold any other office of profit.
(c) Parliament by law will determine the salary of President.
Term of office: The President's term of office is for five years from the date on which he enters upon
his office; but he is eligible for re-election.
The President office may terminate within the term of five years in either of two ways-
(a) By resignation in writing under his hand addressed to the vice-President of India,
(b) By removal for violation of the constitution, by the process of impeachment (Art. 56).

VACANCY IN THE OFFICE OF PRESIDENT

A vacancy in the office of the President may be caused in way of the following ways-
(i) On the expiry of his term of five years,
(ii) By his death,
(iii) By his resignation. The President may, by writing under his hand addressed to the Vice-
President, resign from his office,
(iv) On his removal by impeachment,
The President may, for violation of the Constitution, be removed from the office by
impeachment in the manner provided in Art. 61
(v) Otherwise, e.g., on the setting aside of his election as President.

TIME FOR HOLDING PRESIDENTIAL ELECTIONS

(a) An election to fill a vacancy caused by the expiration of the term of office of President shall be
completed before the expiration of the current term.
(b) An election to fill a vacancy in the office of President occurring by the reasons of death,
resignation or removal, or otherwise, should be held within 6 months from the date of
occurrence of vacancy.

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PRIVILEGES AND IMMUNITIES

(a) The President cannot be asked to be present in any court of law during his tenure.
(b) A prior notice of two months time is to be served before instituting a civil case against him.
(c) The President can neither be arrested nor any criminal proceedings be instituted against him
in any court of law during his tenure.
(d) The President is not answerable to any court of law for the exercise of his functions.

REMOVAL OF PRESIDENT (IMPEACHMENT PROCESS)

The President can only be removed from office through a process called impeachment. The
Constitution lays down a detailed procedure for the impeachment of the President. An impeachment is
a quasi-judicial procedure in parliament. Either House may prefer the charge of violation of the
Constitution before the other House which shall then either investigate the charge itself or cause the
charge to be investigated.

PROCEDURE FOR IMPEACHMENT

The resolution to impeach the President can be moved in either House of

Parliament. Such a resolution can be moved only after a notice has been given by
at least one-fourth of the total number of members of the House. Such a
resolution charging the President for violation of the Constitution must be passed by
a majority of not less than two-third of the total membership of that House before it
goes to the other House for investigation.

The charges levelled against the President are investigated by the second
House. President has the right to be heard or defended when the charges against
him are being investigated. The President may defend himself in person or through
his counsel.

If the charges are accepted by a two-third majority of the total membership

of the second House, the impeachment succeeds. The President thus stands
removed from the office from the date on which the resolution is passed.

But the charge cannot be preferred by a House unless-

(a) a resolution containing the proposal is moved after a 14 days notice in writing signed by not
less than 1/4 of the total number of members of the House; and

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(b) the resolution is then passed by a majority of not less than 2/3 of the total membership of the
House.
The President shall have a right to appear and to be represented at such investigation. If as a
result of the investigation, a resolution is passed by not less than 2/3 of the total membership of the
House before which the charge has been preferred declaring that the charge has been sustained, such
resolution shall have the effect of removing the President from his office with effect from the date on
which such resolution is passed (Article 61).
Since the Constitution provides the mode and ground for removing the President, he cannot be
removed otherwise than by impeachment, in accordance with the terms of Art 56 and 61.

ALLOWANCES AND EMOLUMENTS

The President shall be entitled without payment of rent to the use of his official residence and shall be
also entitled to such emoluments, allowances and privileges as may be determined by Parliament by
law that behalf is so made, such emoluments, allowances and privileges as are specified in the second
schedule of the Constitution.
The President receives a salary of Rs. 1,50,000/- per month and an annual pension on the expiration
of his term or on resignation provided he is not re-elected to the office. The emoluments and
allowances of the President shall not be diminished during his term of office.

POWERS OF THE PRESIDENT

The President of India is the head of a parliamentary state, entrusted with all the executive authorities
including the supreme command of the forces. He exercises his power with the aid and advice of the
Council of Ministers.
The Prime Minister is the real head of the Government. However, a vast number of powers have been
earmarked for the President by the Constitution. Powers of President can be summarized under
following categories:-

1. EXECUTIVE POWERS

(a) Article 53 of the Constitution declares the President to be the chief of the state. Sub-clause (i)
states, "The executive powers of the union shall be vested in the President and shall be
exercised by him either directly or through offices sub-ordinate to him in accordance with his
constitution. The Constitution vests the supreme executive authority of the Union in the
President.
(b) Under Article 77, all the executive actions of the government are taken under the name of the
President.
(c) He holds the supreme command of India's defence forces and has the power of declaring
war or concluding peace.
(d) Under Article 78, the President has the right to seek any information from the Centre and the
State.
(e) The President appoints, as Prime Minister, the person most likely to command the support of
the majority in the Lok Sabha (usually the leader of the majority party or coalition). The

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President then appoints the other members of the Council of Ministers, distributing portfolios
to them on the advice of the Prime Minister.
(f) Under Article 310, every officer of the government occupies his/her position during the
pleasure of the President.
(g) It is the President of India by whom Houses of Parliament are summoned and he may convene
joint sitting of the two Houses in case of deadlock.
(h) The President nominates 12 members for the Rajya Sabha with extra-ordinary
accomplishments from amongst persons who have special knowledge or practical experience
in respect of such matters as literature, science, art and social service and two members for
the Lok Sabha from the Anglo-Indian Community.
(i) The President is responsible for making a wide variety of appointments. These include:
 Governors of States
 The Chief Justice, other judges of the Supreme Court and High Courts of India
 The Chief Minister of National capital territory of Delhi (Article 239 AA 5 of the
constitution)
 The Attorney General
 The Comptroller and Auditor General
 The Chief Election Commissioner and other Election Commissioners
 The Chairman and other Members of the Union Public Service Commission
 Vice Chancellor of central university and academic staff of central university through his
nominee
 Ambassadors and High Commissioners to other countries

(j) Besides he has the power to appoint an Inter-State Commission, Finance Commission,
Election Commission, etc. He has the power to be kept informed of all the officers of the
Union. It is the duty of the Prime Minister to communicate to the President all decisions of the
council of ministers relating to the administration of Union Affairs.

2. LEGISLATIVE POWERS

According to the Constitution, the President is an integral part of the Parliament. He has many
powers in relation to the Parliament-
(a) The President inaugurates the Parliament by addressing it after the general elections and
also at the beginning of the first session each year. Presidential address on these occasions is
generally meant to outline the new policies of the government.[Article 87]
(b) He summons, prorogues the Parliament.
(c) He can dissolve the House of people.
(d) He can address either Houses of Parliament or both the Houses jointly (i.e. a joint session
of both the houses of the Parliament).
(e) He can send message to either House of Parliament whether with respect to a Bill
pending in Parliament or otherwise.[Article 86(2)]
(f) The President decides questions as to disqualification of members.[Art. 103]
(g) He can cause certain reports and statements to be laid before the Parliament such as the
report of the Comptroller and Auditor General, or the Report of the Finance Commission.
(h) He recommends the introduction of certain bills in the Parliament such as the re-
organisation of states or alteration of boundaries; a money-bill involving expenditure.

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(i) No bill can become a law unless and until assented to by the President. [Article 114]
All bills passed by the Parliament can become laws only after receiving the assent of the
President.
After a bill is presented to him, the President shall declare either that he assents to the
Bill, or that he withholds his assent from it. As a third option, he can return a bill to the
Parliament, if it is not a money bill or a Constitutional amendment bill, for reconsideration.
When, after reconsideration, the bill is passed and presented to the President, with or
without amendments, the President cannot withhold his assent from it. The President can also
withhold his assent to a bill when it is initially presented to him (rather than return it to the
Parliament) thereby exercising a pocket veto.
(j) The President may withhold his assent or return the Bill to the House, for
reconsideration, if it is not a money bill.
(k) Certain types of bills passed by the state Legislature are to be reserved for Presidents assent.
Certain bills require his prior sanction before they are introduced in the state Legislature.
(l) The most important legislative power of the President is his power to promulgate
Ordinances under Article 123. According to this, the President is empowered to promulgate
ordinances, except when both the Houses of Parliament are in session, if he is satisfied that
circumstances exit compelling him to take immediate action.
A Presidential Ordinance has the same force and effect as an Act of Parliament.
However, every such ordinance should be laid before both Houses of Parliament within six
weeks from the re-assembly of Parliament. Failure to comply with this condition, or
Parliamentary disapproval within the six weeks' period, will make the Ordinance invalid. The
President may also withdraw the Ordinance at any time he likes.

3. FINANCIAL POWERS

In respect of finance, the President enjoys the following powers:

(a) No money bill can be introduced in the House of people without the previous sanction of
President. All money bills originate in House of the people (Lok Sabha) (Article 109).
(b) The president shall cause to be laid before Parliament, the Annual Budget and
supplementary Budget for its approval (Article 112).
(c) He causes to be laid before the Parliament the Annual Finance Statement called the Budget
before the beginning of every financial year.
(d) Withdrawal from the Contingency Fund of India is done after the permission of the
President. The Contingency Fund of India is at the disposal of the President. He can make
advances from the contingency fund of India to meet unforeseen expenses, pending approval
by the Parliament.
(e) The President appoints the Finance Commission from time to time to make
recommendation regarding the distribution of taxes between the Union and the states.
(f) He determines the shares of Income Tax receipts between the Union and the States.

4. JUDICIAL POWERS (PARDONING POWER)

The President has the power to grant pardons and reprives, and suspend, remit or commute sentences
of persons convicted by court martial, and in all cases in which sentences of death have been passed.
As mentioned in Article 72 of Indian Constitution, the President is empowered with the powers to
grant pardons in the following situations:
 Punishment is for offence against Union Law

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 Punishment is by a Military Court

 Sentence is that of death
To pardon means to forgive a person of his offence. It is an act of grace and cannot be claimed or
demanded as a matter of right. It is purely an executive act. The decisions involving pardoning and
other rights by the President are independent of the opinion of the Prime Minister or the Lok Sabha
majority. In most cases, however, the President exercises his executive powers on the advice of the
Prime Minister and the cabinet.
The Presidents power does not affect the similar powers of the Governor and military officers
with respect to Court-Martial. It is noteworthy that the Presidents judicial power does not include the
power to grant amnesty. This power is left to the Parliament.
(b) Advisory Jurisdiction under Article 143 also comes under judicial powers of the President.
(c) The President enjoys certain privileges in respect to criminal or civil proceedings against him. No
criminal proceedings can be started against him during his term of office. Civil proceedings can be
initiated only after he has been served with a two months written notice.

5. MILITARY POWERS

The Supreme Command of the Defence Forces is vested in the President of India, but the
Constitution expressly lay down that the exercise of this power shall be regulated by law.
This means that though the President may have the power to take action as to declaration of
war or peace or the employment of the Defence Forces, it is competent for Parliament to regulate or
control the exercise of such powers.

6. DIPLOMATIC POWERS

Like the head of other States, the President of India represents India in international affairs
and has the power to appoint Indian representatives to other countries and receives diplomatic
representatives of other states.

7. EMERGENCY POWERS

In addition to the power enumerated above the President of India enjoys vast emergency powers.
Article 352 to 360 deals with the emergency provisions. The Constitution visualizes three kinds of
emergencies:-
(a) Emergency arising out of a threat to the security of India or any part of it by war,
external aggression or internal disturbances,
(b) Emergency arising out of the failure of the constitutional machinery in any one of the
states.
(c) Emergency caused by a threat to the financial stability of India.
It is the President who determines whether the emergency exists or not. His judgement in this case
cannot be questioned. If the President issues a declaration of national emergency caused by war or
threat of war he may:-
 Suspend the autonomy of states and empower the Parliament to make laws on all
matters including matters in the state list.
 Extend the executive power of the union so as to give directions to any state regarding
the manner in which the executive power of the union is to be exercised;
 Suspend the fundamental rights including the right to constitutional remedies.

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 The President can modify the provisions relating to distribution of revenues between
the centre and the states in order to secure adequate revenue for the Government of
India to meet situation created by emergency.
The above is the assessment of various powers of the President of India. Looking to these powers one
may say that President is no less than a dictator and especially so when an emergency has been
declared.
However, whatever may be the Constitutional provisions regarding the powers of the President and
however vast these powers may be, yet it may be said that the President of India being the head of a
parliamentary Government cannot but exercise his powers on the advice of the Council of Ministers
which includes the elected representatives of the people.
Article 74 clearly provides that "there shall be a Council of Ministers to aid and advice the President in
the exercise of these functions. Article 74 is a mandatory provision.
The Constitution does not visualize the rule of the President at the centre. The powers of the President
are the powers of the Council of Ministers which is responsible to the Parliament. The President must
act according to their advice because disregard of their advice would kill the essence of the
parliamentary Government which requires that the head of the state should exercise his powers on the
advice of the cabinet responsible to the parliament.

VICE-PRESIDENT OF INDIA

The Vice-President is elected under Article 63 of the Constitution. His importance in the Constitution
is that whenever any vacancy occurs in the office of the President, he acts as President until a new
President is elected. The Vice-President like the President is elected indirectly.
The Vice-President is elected by the members of both Houses of Parliament at a joint session
by secret ballot in accordance with the system of proportional representation by means of single
transferable vote.
The Vice-President of India shall be ex-officio Chairman of the Raba Sabha. His normal function
is to preside over meetings of the Rajya Sabha. But since he is not the member of the Rajya Sabha, he
has no right to vote.

QUALIFICATIONS
The qualifications of the Vice President are the same as those of the President except that he
must be eligible for election to the Rajya Sabha.
(i) He must be a citizen of India.
(ii) He must have completed the age of 35 years.
(iii) He must be eligible to be elected as a member of the Rajya Sabha.
(iv) He must not hold any office of profit under any government.

ELECTION OF THE VICE-PRESIDENT

The Vice-President of India is elected by the members of both Houses of Parliament in

accordance with the system of proportional representation by means of a single transferable vote
system and the voting at such election shall be by secret ballot.

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TERM OF OFFICE OF VICE-PRESIDENT

The Vice-President is elected for the term five years. The period of five years starts from the
date on which he enters upon his office.
He is eligible for re-election. However, he may resign from his office before the expiry of
normal term, even before the completion of his tenure by writing to President or may be removed by a
resolution of the Rajya Sabha passed by a simple majority of all the then members of the House and
agreed to by a simple majority of the Lok Sabha.

FUNCTIONS OF THE VICE-PRESIDENT

The duties of the Vice-President are two-fold:-

1. He is the ex-officio chairman of the Rajya Sabha and
2. He acts for the President when the office of the President is vacant.
Even when the President is ill or otherwise unable to perform his duties, the Vice-
President acts for him.

POSITION OF VICE-PRESIDENT

There is no doubt that the office of the Vice-President of India is next to the office of the
President of India. But the Vice-President of India does not exercise any important and real powers.
Therefore, the office of the Vice-President of India is not of any great importance.

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UNION LEGISLATURE
COUNCIL OF MINISTERS

The word 'Parliament' is derived from the French word 'Parler' which means 'to talk'.
The term connotes a place where people sit and discuss national and international problems
and enact legislation for their country.

THE UNION PARLIAMENT

THE PRESIDENT THE TWO HOUSES

THE HOUSE OF PEOPLE THE COUNCIL OF STATES

(LOK SABHA) (RAJYA SABHA)

The Union Parliament of India consists of the President and the two Houses known as the
House of people and the Council of states. The House of people is the Lower chamber where as the
council of states is the upper chamber of the house of parliament.
The Rajya Sabha is composed many of representatives of the states elected by the State
Assemblies. The Lok Sabha is composed of directly elected representatives on the basis of adult
franchise and territorial constituencies. The President is an integral part of the parliament.
Under the Constitution of India, the legislature of the Union is called Parliament is the pivot
on which the political system of the country revolves.

THE HOUSE OF PEOPLE (LOK SABHA)

The House of people is known as the 'Lower House' of Parliament or the Lok Sabha
Its members are elected directly by the people.
Composition of Lok Sabha

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530 MEMBERS CHOSEN NOT MORE TWO

BY DIRECT ELECTION THAN 20 MEMBERS
FROM TERRITORIAL MEMBERS TO OF THE 552
CONSTITUENCIES IN REPRESENT ANGLO- MEMBERS
THE STATES
UNION INDIAN,
TERRITORIES COMMUNITY
MAYBE
NOMINATED
BY THE
PRESIDENT

Under the Constitution, not more than 530 members are to be chosen by direct election from
territorial constituencies in the states, and not more than 20 members to represent the union
Territories.
In addition, two members of the Anglo-Indian, community maybe nominated by the
President, if he is of the opinion that the community is not adequately represented in the Lok Sabha.
Thus the maximum strength of the House envisaged in the constitution is thus 552.
The total elected strength of the Lok Sabha is distributed among the states in such a way that the ratio
between the number of seats and the population of any state is as far as possible the same for all
states. At present the Lok Sabha consists of 545 members.
Direct Election: The election to the Lok Sabha is conducted on the basis of adult franchise where
every man or woman who has completed the age of 18 years is eligible to vote. The Constitution
provides for secret ballot. According to the present system, a candidate who secures the largest
number of votes is declared elected.

Duration of the Lok Sabha:

Lok Sabha has been provided with a fixed term as in the case of the popularly elected House of
Representatives in the United States of America and the House of commons in the United Kingdom.
The term of the Lok Sabha in India is five years from the date appointed for its first meeting.

The expiration of the period of five years operates as its dissolution. The Lok Sabha may be
dissolved before the expiration of its full term under certain circumstances, when a proclamation of
Emergency is in force, the term of Lok Sabha can be extended by Parliament for a period not exceeding
one year at a time and not exceeding in any case a period of six months after the proclamation has
ceased to operate.
Qualifications for membership:
According to Article 84 of the Constitution, following are the qualifications for the
membership of Lok Sabha. A candidate must be-
(a) a citizen of India;
(b) have attained the age of twenty five years and
(c) must possess such other qualifications as may be prescribed by the parliament. A person
holding an office of profit is disqualified from becoming a member of the House.
Sessions:
The Lok Sabha shall meet at least twice a year and the interval between two consecutive
sessions shall be less than six months. The time and place of meeting will be decided by the President
who will summon the House to meet. He has also the power to prorogue the House.

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The Lok Sabha can also be summoned in a special session for disapproving the
proclamation under Article 352, if a notice in writing signed by not less than one-tenth of the
members of the Lok Sabha is given to the speaker. When such a notice is given the President must
summon the session within 14 days.

THE COUNCIL OF STATES (RAJYA SABHA)

The Rajya Sabha is the 'Upper House' of Parliament and is sometimes called the 'House of Elders'.

Composition of Rajya Sabha (Article 80):

TWELVE MEMBERS TO NOT MORE THAN

BE NOMINATED BY THE TWO HUNDRED
PRESIDENT HAYING AND THIRTY-EIGHT 250
SPECIAL KNOWLEDGE REPRESENTATIVES MEMBERS
OR PRACTICAL OF THE STATES
EXPERIENCE IN RESPECT AND OF THE UNION
OF LITERATURE, TERRITORIES.
SCIENCE, ART AND
SOCIAL SERVICE

The present strength of the Rajya Sabha is 245 of these, 233 are elected by the various
State Legislative Assemblies, thus making the Rajya Sabha predominantly an indirectly elected
body.
Indirect Election:
Whereas the Lok Sabha is directly elected on the basis of adult suffrage for five years, the
Rajya Sabha is indirectly elected on a proportional representation basis by the state Legislatures.
For the purpose of this election to each State is allotted a certain number of seats in the Rajya Sabha.
The main basis of such allotment is the strength of the population in each State. The members
of each State Legislative Assembly from the electorate for the purpose of electing the requisite number
of members allotted to each state thus ensuring the principle of State representation in the 'upper
chamber' of parliament.
Another principle that is given recognition in the composition of the Rajya Sabha is
representation of talent, experience and service. The method of proportional representation helps
better representation of minorities.

Term of Upper House i.e. Rajya Sabha:

The Rajya Sabha enjoys a continuity of life. Under the Constitution, the Rajya Sabha cannot be
dissolved. The term of the members of the Rajya Sabha is six years and in this respect it resembles the
senate of the United States whose members are also chosen for six years.
In fact, the Rajya Sabha is a permanent body like the American Senate, one third of the
members of the Rajya Sabha retire after every two years.

Chairman and Deputy-Chairman of the Rajya Sabha-

The Vice-President of India is ex-officio chairman of the Rajya Sabha. He is elected by an
electoral college consisting of the members of both the Lok Sabha and the Rajya Sabha.

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While the office of the chairman is vacant, or during any period when the Vice- President acts
as the President of India or discharges the functions of the President, the duties of the chairman of the
Rajya Sabha are performed in the Deputy Chairman.
The Rajya Sabha also has a panel of members called Vice-Chairman' nominated by the chairman for
the purpose of presiding over the Rajya Sabha in the absence of both the Chairman and Deputy
Chairman.

POWERS OF THE PARLIAMENT

LEGISLATIVE POWERS

The Parliament is mainly a law-making organ. It can make laws on all the matters specified in
the Union list and Concurrent list of the Seventh Schedule.
The State list is beyond the jurisdiction of the Union Parliament; but under certain
circumstances it can also make laws on the subjects enumerated under this list. When the President
has declared an emergency, the Parliament gets power to make law on the State list in normal times.
The Parliament can make laws on the State lists if:
(a) The Council of States has declared by a resolution supported by not less than two-third of its
members present and voting that it is necessary and expedient in the national interests that
the Parliament should make laws with respect to any particular matter specified in the State
list.
(b) Two or more States request the Parliament to make a law on a particular subject for them;
(c) Such a law is necessary for implementing any treaty, agreement or convention with any other
country or countries or any decision made at any international conference, association or such
other body.

EXECUTIVE POWERS

Under a Parliamentary Government, there being no strict separation of powers, the legislative
organ controls the executive organ. The Parliament exercises control over the executive through
numerous measures. It can move adjournment motions and can thereby bring to light the omissions
and commissions of the administration.
It can put questions to the executive to elicit any information regarding administration. It can
appoint investigation committees to go into any aspect of administration. In extreme cases, the
Parliament can get rid of by passing a motion of no-confidence against it.

FINANCIAL POWERS

The Parliament controls the union purse. No taxes can be levied and no expenditure can be
made by the Government without its approval. It determines the financial policy of the country.

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CONSTITUENT POWERS

The Parliament has the power to amend the Constitution. It is worthy of note that while
certain provisions of the Constitution may be amended without the consent of the States, none of the
provisions can be amended without the approval of the Parliament.
There are some provisions of the Constitution which the Parliament can amend by a simple
majority while certain others it can amend by a two-third majority. There are only a few matters
which require the consent of the units.

DELIBERATIVE POWERS

The Parliament is also a debating assembly. It is the place where national questions are
debated upon and policies are formulated. It is here that the actions of Government are reviewed and
criticised. The discussion in the Parliament attracts the attention of the entire country and compels the
Government to its intentions and policies.

MISCELLANEOUS POWERS
The Parliament constitutes a part of the electoral college to elect the President of India. It
alone elects the Vice-President. It has the power to impeach the President.
It can recommend to the President the removal of other high officers of the State including the
judges of the Supreme Court. Finally, the proclamation of Emergency by the President is subject to the
approval of the parliament.

DISQUALIFICATIONS
FOR THE MEMBERSHIP
OF PARLIAMENT
(a) No person shall be member of both the Houses of the Parliament.
(b) No person shall be member of the Parliament and a State Assembly. The disqualification for
the membership of Parliament is different thing from the disqualification for the membership.
A person shall be disqualified for being chosen as a member of either House of Parliament—
(c) If he holds an office of profit under the Govt. of India or the Government of any State.
(d) If he is of unsound mind and stands so declared by a competent court.
(e) If he is an undicharged insolvent.
(f) If he is not a citizen of India.
(g) If he acquires citizenship of any other State.
(h) he shows allegiance to any other State.
(i) If he is disqualified under any law made by the Parliament.

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If any question arises as to disqualification of a member, the decision of President shall be final.

COUNCIL OF MINISTERS

Article 74 of the Constitution of India provides that there would be a Council of Ministers with the
Prime Minister as its head to aid and advise the President of the Indian Union in discharging his
duties.
The Prime Minister is appointed by the President who also appoints other ministers on the
advice of the Prime Minister.
The Council of Ministers is collectively responsible to the Lok Sabha. It is the duty of the
Prime Minister to communicate to the President all decisions of the Council of Ministers relating to
administration of the affairs of the Union and proposals for legislation and information relating to
them.
The Council of Ministers comprises of ministers who are in three categories-
 CABINET MEMBERS- Each member of the cabinet handles an independent charge of a
department.
 MINISTERS OF STATE- They are also the ministers of the cabinet rank and help in discharging
the duties of cabinet ministers.

 DEPUTY MINISTERS- They are the ministers of the lower rank and work under the state
ministers.

THE PRIME MINISTER

The Constitution of India provides that there shall be a Council of Ministers to assist the President
in discharging his duties. The Prime Minister of India heads the Council of Ministers.
He is the leader of the party that enjoys a majority in the Lok Sabha. While the President of
India is the head of the State, the Prime Minister is the head of the Government.
APPOINTMENT- The leader of the majority party in the Lok Sabha is appointed as the Prime Minister
by the President. The President is the Constitutional head of the Union executive and the Prime
Minister is the real head.
FUNCTIONS-
(a) He selects other ministers, who are appointed by the President on the advice of the Prime
Minister.
(b) He presides over cabinet meetings.
(c) He is the link between the President and the Cabinet It is the Prime Minister who keeps the
President informed of the decisions of the Council of Ministers.
(d) He guides the ministers and coordinates the policies of various departments and ministries.
(e) He is the leader of the Lok Sabha in Parliament.
(f) He is the Chairman of the Planning Commission.
(g) He is the Chief confidential advisor to the President.

Term of the office-The term does not exceed five years. He may also be removed from his office when
his party loses majority in Lok Sabha.

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Resignation- If the government is defeated in the Lok Sabha, the Cabinet and the Prime Minister both
have to resign as they are responsible to the Lok Sabha.

MONEY BILL
Article 110 of the Constitution defines Money Bill. It provides that-

(1) For the purpose of this chapter, a Bill shall be deemed to be money bill if it contains only provisions
dealing with all or any of the following matters, namely:-
(a) the imposition, abolition, remission, alteration or regulation of any tax;
(b) the regulation of the borrowing of money or the giving of any guarantee by the Government of
India, or the amendment of the law with respect to any financial obligations undertaken or to
be undertaken by the Government of India;
(c) the custody of the Consolidated Fund or the Contingency Fund of India, the payment of
moneys into or the withdrawal of moneys from any such Fund;
(d) the appropriation of moneys out of the Consolidated Fund of India;
(e) the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India
or the increasing of the amount of any such expenditure;
(f) the receipt of money on account of the Consolidated Fund of India or the public account of
India or the custody or issue of such money or the audit of the accounts of the Union or of a
State; or
(g) any matter incidental to any of the matters specified in sub-clauses (a) to (f).

(2) A Bill shall not be deemed to be a Money Bill by reason only that it provides for the imposition of
fines or other pecuniary penalties, or for the demand or payment of fees for licences or fees for
services rendered, or by reason that it provides for the imposition, abolition, remission, alteration or
regulation of any tax by any local authority or body for local purposes.
(3) If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House
of the People thereon shall be final.

(4) There shall be endorsed on every Money Bill when it is transmitted to the Council of States under
article 109, and when it is presented to the President for assent under article 111, the certificate of the
Speaker of the House of the People signed by him that it is a Money Bill.

Procedure in respect of Money Bill-

A Money Bill shall not be introduced in the Council of States except on the recommendation of the
President.
After a Money Bill has been passed by the house of the People it shall be transmitted to the
Council of States for its recommendation and the Council of States shall within a period of fourteen
days from the date of its receipt return the Bill to the House of the People with its recommendations
and the House of the People may thereupon either accept or reject all or any of the recommendations
of the Council of States. If the House of the People accepts any of the recommendations of the Council
of States, the Money Bill shall be deemed to have been passed by both Houses with the amendments
recommended by the Council of States and accepted by the House of the People

If the House of the People does not accept any of the recommendation, of the Council of States,
the Money Bill shall be deemed to have been passed by both the Houses in the form in which it was

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passed by the House of the People without any of the amendments recommended by the Council of
States.

If a Money Bill is passed by the House of the People and transmitted to the Council of States for
its recommendations is not returned to the House of the People within the said period of fourteen
days, it shall be deemed to have been passed by both Houses at the expiration of the said period in the
form in which it was passed by the House of the People. [Art. 109]

DIFFERENCE BETWEEN ORDINARY BILL AND MONEY BILL

ORDINARY BILL MONEY BILL

Articles 107 & 108 deal with Ordinary Bills. Articles 109 and 110 deal with Money Bills
An Ordinary Bill can be introduced any of the A Money Bill can only be introduced in the
Houses of Parliament. Lok Sabha.
An ordinary Bill can be introduced only with the The Money Bill can be introduced without
recommendation of b President. the recommendations of the President.

A dead-lock may occur. No deadlock occurs

A Joint session of Houses may be 'lied to resolve Joint session of the Houses is not necessary.
the dead-look.

When a Bill is passed in one House and it is sent A Money Bill is always passed by Lok Sabha.
to the other House for passing, the other House Thereafter it is sent to Rajya Sabha for
may keep that Bill for six months with it. recommendations. It can keep only for 14
days.
The House has to oblige the recommendations of Lok Sabha may consider or may not consider
the other House. the recommendations of the Rajya Sabha
pertaining to Money Bills.
Certificate from the Speaker s not necessary. The Speaker has to give a certificate for the
Money Bill.

THE UNION JUDICIARY

THE SUPREME COURT

In a democratic set-up like India, judiciary is the supreme authority in the sense that it is the
guardian of the Constitution and the rights of the citizens. Also, it has been vested with the duty to
strike a balance between the central government and the governments of the federating units, other
pillars of the democracy. Therefore, existence of an independent and impartial judiciary is an essential
pre-requisite of a federal form of government. It acts as the custodian of democracy and the guardian
of the rights and liberties of the people.

Unlike other federal systems, we do not have separate hierarchies of federal and state courts.
For the entire Republic of India, there is one unified judicial system- one hierarchy of courts- with the
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Supreme Court as the highest or the apex court. Then there are High Courts at the state level and
subordinate courts below them.
The Supreme Court of India consists of the Chief Justice and 30 other judges, appointed by the
president. The Parliament has the power to prescribe the number of judges and no formal amendment
of the constitution is required for this purpose.

Article 124 provides for the establishment and constitution of Supreme Court-
(1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament
by law prescribes a larger number, of not more than 30 Judges.
(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand
and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the
States as the President may deem necessary for the purpose and shall hold office until he attains the
age of sixty five years:
Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of
India shall always be consulted:
Provided further that—
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office in the manner provided in clause (4).

QUALIFICATIONS AND SALARY

For appointment as a judge of the Supreme Court a person must be-

(a) Must be a citizen of India, and
(b) has been for at least five years a Judge of a High Court or of two or more such Courts in
succession; or
(c) has been for at least ten years an advocate of a High Court or of two or more such Courts in
succession; or
(d) is, in the opinion of the President, a distinguished jurist.
Thus, a non-practicing or an academic lawyer may also be appointed as a judge of the
Supreme Court if he is, in the opinion of the President, a distinguished jurist.

Provision has also been made for the appointment of a judge of a High Court as ad hoc judge of the
Supreme Court and retired judges of the Supreme Court or of High Court to sit and act as judge of the
Supreme Court. The Constitution debars a retired judge of Supreme Court from practicing in any court
of law or before any other authority in India. The salary of the judges is charged upon the Consolidated
Fund of India.

REMOVAL OF JUDGES
The judges of the Supreme Court can be removed from office by the President only after an
address by each house of Parliament supported by more than two thirds majority of members present
and voting has been presented to the President in the same session for removal of the judges on the
ground of proved misbehaviour or incapacity.

Oath - Every person appointed as a judge of the Supreme Court before he enters upon his office, takes
an oath before the President or some person appointed in that behalf by him in the form prescribed in

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the Constitution. The Constitution prohibits a person who has hold office as a judge of the Supreme
Court from practicing law before any court in the territory of India (Art 124 (6) and (7)).

The Constitution prohibits a person who has held office as a Judge of the Supreme Court from
practicing or acting as a judge in any court or before any authority within the territory of India. But
under Article 128, the Chief Justice may appoint the retired judges to act as ad hoc judges in the
Supreme Court.

Appointment of ad hoc judges and his qualification-

Article 127 of the Constitution prescribes for the appointment and qualifications of the ad hoc
Judges.
It reads as under-
If at any time there should not be a quorum of the Judges of the Supreme Court available to
hold or continue any session of the Court, the Chief Justice of India may, with the previous consent of
the President and after consultation with the Chief Justice of the High Court concerned, request in
writing the attendance at the sittings of the Court, as an ad hoc Judge, for such period as may be
necessary, of a Judge of High Court duly qualified for appointment as a Judge of the Supreme Court to
be designated by the Chief Justice of India.
It shall be the duty of Judge who has been so designated, in priority to other duties of his
Office, to attend the sittings of the Supreme Court at the time and for the period for which his
attendance is required, and while so attending he shall have all the jurisdiction, powers and privileges,
and shall discharge the duties of a Judge of the Supreme Court.

JURISDICTION OF SUPREME COURT

A COURT ORIGINAL APPELLATE ADVISORY WRIT

OF JURISDICTION JURISDICTION JURISDICTION JURISDICTION
(Art. 131) (Art. 143)
RECORD (Art. 132, 133, (Art. 32)
(Art. 129) 134,134A, 136

APPEAL IN APPEAL IN APPEAL IN APPEAL BY

CONSTITUTIONAL CIVIL CASES CRIMINAL SPECIAL
MATTERS (ART. 133) CASES LEAVE (SLP)
(ART. 132) (ART. 134) (ART. 136)

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ORIGINAL JURISDICTION (ARTICLE 131)

This refers to the cases that directly originate in the Supreme Court.
It has original exclusive jurisdiction in any dispute between-
(a) the Government of India and one or more States; or
(b) the Government of India and any State or States on one side and one or more other States on
the other; or
(c) two or more States.
Such a dispute should, however, involve some question of law or fact on which the existence
or extent of a legal right depends. The treaties concluded between the Centre and the princely states
are excluded from the Court s original jurisdiction
The President may, however, refer the above mentioned disputes to the Supreme Court
for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its
opinion thereon.

Article 32 empowers the Supreme Court to issue directions or orders in the nature of the writs of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the
enforcement of fundamental rights. It is to be noted that this jurisdiction is not exclusive. It is
concurrent. High Courts of States have also been granted similar powers.
Art 139 also empowers the Supreme Court with exactly similar powers. It says-
"Parliament, by law, may confer on the Supreme Court, power to issue directions, orders or
writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari or any of them.

Under the scheme of the Constitution, Article 131 confers original jurisdiction on the Supreme
Court in regard to a dispute between two States of the Union of India or between one or more States
and the Union of India.

APPELLATE JURISDICTION (ARTICLES 132 TO 136)

This refers to the power of reviewing and revising the orders of lower courts and tribunals. This
jurisdiction extends to both the civil and the criminal appeals from the High Courts under certification
from these courts or, in its absence, permitted by the Supreme Court itself. Normally, these appeals are
in cases involving substantial question of law of general importance or interpretation of the
Constitution or death penalty awarded by a High Court.

The Appellate jurisdiction of the Supreme Court extends to three branches :

(A) Civil,
(B) Criminal, and
(C) Constitutional.

CIVIL APPELLATE JURISDICTION (ART. 133)

(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil
proceeding of a High Court in the territory of India if the High Court certifies under article 134A—
(a) that the case involves a substantial question of law of general importance; and
(b) that in the opinion of the High Court the said question needs to be decided by the Supreme
Court.

(2) Notwithstanding anything in article 132, any party appealing to the Supreme Court under clause
(1) may urge as one of the grounds in such appeal that a substantial question of law as to the
interpretation of this Constitution has been wrongly decided.

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(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise
provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a High
Court.

CRIMINAL APPELLATE JURISDICTION(SEC. 134)

According to Article 134 an appeal lies to the Supreme Court from any judgment, final order or
sentence in a criminal proceeding of a High Court in the following two ways-
(1) with a certificate of the High Court, or
(2) without a certificate of the High Court.

(1) With a certificate of the High Court— Under clause (e) an appeal lies to the Supreme Court if the
High Court certifies under Article 134-A (Added by 44th Amendment, 1978) that it is a fit case for
appeal to the Supreme Court. [Art 134(c)]
Under the new Art. 134-A the High Court can grant a certificate for appeal to the Supreme
Court tinder An. 132 either on its own motion or on 'oral' application of the aggrieved party
immediately after passing the judgment, decree, or final order. Prior to this, the High Court does so
only on the application of the aggrieved party. Under new Article (134-A); it can now grant a
certificate on its own motion if it deems fit.

(2) Without a certificate of the High Court— An appeal lies to the Supreme Court without the
certificate of the High Court if the High Court —
(a) has on appeal reversed an order of acquittal of an accused person and sentenced him to
death, or
(b) has withdrawn for trial before itself, any case from any Court subordinate to its authority
and has in such trial convicted the accused person and sentenced him to death. But if the High
Court has reversed the order of conviction and has ordered the acquittal of an accused, no
appeal would lie to the Supreme Court.

POWER OF PRESIDENT TO CONSULT SUPREME COURT

(ADVISORY JURISDICTION)(Art. 143)
(1) If at any time it appears to the President that a question of law or fact has arisen, or is likely to
arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion
of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court
may, after such hearing as it thinks fit, report to the President its opinion thereon.

(2) The President may, notwithstanding anything in the proviso to article 131, refer a dispute of the
kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall,
after such hearing as it thinks fit, report to the President its opinion thereon.
The use of the word 'may' in Art.143(1) indicates that the Supreme Court is not bound to
answer a reference made to it by the President.

SUPREME COURT AS A COURT OF RECORD (ART. 129)

The Supreme Court shall be a Court of record and shall have all powers of such a Court, including the
power to punish for contempt of itself. As a Court of record it has the power to punish those who are
adjudged as guilty of contempt of court.

APPEAL BY SPECIAL LEAVE (SEC. 136)

This power has been conferred upon the Supreme Court by Article 136. It may, in its discretion, grant
special leave to appeal from any judgments, decree, determination, sentence or order in any cause or
matter passed or made by any court or tribunal in the territory of India.

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WRIT JURISDICTION (ART. 32)

The Supreme Court is the guardian of the individual liberties and fundamental rights. It has the
power to declare a law passed by any legislature null and void if it encroaches upon the fundamental
rights guaranteed to the people by the Constitution. For the enforcement of fundamental rights, it can
issue writs in the nature of Habeas Corpus, Mandamus, Certiorari, Prohibition and Qua-Warranto.

Besides the above mentioned powers, the Supreme Court has the power of judicial review under
Art.13. It implies the power to review and determine validity of a law or an order. It refers to "the
power of a court to inquire whether a law, executive order or other official action conflicts with the
written Constitution, and if the court concludes that it does, to declare it unconstitutional and void".

However, the Indian Constitution does not in so many words assign the power of judicial
review to the court. There are several specific provisions in the Constitution, which guarantee judicial
review of legislation such as Articles 13, 32, 131-136, 143, 226, 145, 246, 251, 254 and 372.
Apart from these Articles, the power of judicial review is derived from the position of Supreme
Court as the guardian of the Constitution.

The court can challenge the constitutional validity of a law on the following grounds:
(a) the subject matter of the legislation is not within competence of the legislature which
has passed it;
(b) It is repugnant to the provisions of the Constitution; or
(c) It infringes one of the fundamental rights.

The power of judicial review, in general, flows from the powers of the courts to interpret the
Constitution. As such it has the final say in the interpretation of the Constitution and by such
interpretation; the Supreme Court has extended its power of judicial review to almost all the provi-
sions of the Constitution.

The limitations on the power of judicial review of the Supreme Court:

Under Article 137, the Supreme Court has expressly been given the power to review its
judgment. However, this is subject to any law passed by the Parliament. This power is exercisable
under rules made by the Court under Article 145, on grounds mentioned in Order 47, Rule 1 of C. P. C.,
a review will lie in the Supreme Court on-
(1) Discovery of new and important matter or evidence;
(2) Mistake or error apparent on the face of the record; and
(3) Any other sufficient reason.

Article 141 of the Constitution provides that the judgment of the Supreme Court will be binding on all
Courts in India.

MAINTENANCE OF INDEPENDENCE OF JUDICIARY

Only an impartial and independent judiciary can protect the rights of the individual and
provide equal justice without force and fear. It is very necessary that the Supreme -Court should be
allowed to function without fear and political pressure. There must be security of tenure of the judges,
no alteration in the salaries during the term of their office etc. to enable a judge to administer justice
freely.

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The Constitution has made the following provisions to ensure the independence of judiciary—
(a) Security of Tenure—The Judges of the Supreme Court have security of tenure. They cannot be
removed from their office except by an order of the President and that also 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 the
House present and voting. Parliament may, however, regulate the procedure for presentation
of the address and for investigation and proof of misbehaviour or incapacity of a Judge. But
Parliament cannot misuse this power because the special procedure for their removal must be
followed.

(b) Salaries etc. are fixed—The salaries of the Judges of the Supreme Court and High Court are
fixed by the Constitution and charged on the Consolidated Fund of India. They are not subject
to vote of legislature. During the term of their office, their salaries and allowances cannot be
altered to their disadvantage except in grave financial emergency.

(c) Jurisdiction of Supreme Court not to be curtailed—In respect of its jurisdiction, Parliament
may change pecuniary limit for appeals to the Supreme Court, confer supplementary power to
enable it to work more effectively, confer power to issue directions, orders or writs including
all the prerogative writs for any purpose other than those mentioned in Art. 132. In this
respect, the Parliament can extend but cannot curtail die jurisdiction of Supreme Court.

(d) No discussion in Legislature—Neither in Parliament nor in a State Legislature a discussion

can take place with respect to the conduct of a Judge of the Supreme Court in discharge of his
duties.

(e) Appointment of Judges—The Constitution does not leave the appointment of the Judges of
the Supreme Court to the unguided discretion of the Executive. The Executive is required to
consult Judges of the Supreme Court and High Courts in the appointment of the Judges of the
Supreme Court.

Thus the position of the Supreme Court is very strong and its independence is adequately guaranteed.

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UNIT-V
STATE EXECUTIVE, LEGISLATURE AND JUDICIARY

8. STATE EXECUTIVE - GOVERNOR

9. STATE LEGISLATURE – VIDHAN SABHA – VIDHAN PARISHAD
10. STATE JUDICIARY – HIGH COURT

THE STATE EXECUTIVE: GOVERNOR

Government at the State is the same as that for the Union, that is, a Parliamentary system. The head of
the states is called the Governor, who is the constitutional head of the state as the President is for the
whole of India.
The Governor is usually a distinguished elder states man, who can discharge his rather
perfunctory duties with dignity and who is on a position to exercise what Gandhi called an "all
pervading moral influence .
The Governor of a state has a dual role to play-
(a) as the constitutional head of the state and
(b) as the agent or representative of the centre.
As per Art. 157, no person shall be eligible for appointment as Governor unless-
 he is a citizen of India and
 has completed the age of 35 years

 The Governor of a State shall be appointed by the President by warrant under his hand and
seal [Art.155].
 Subject to the pleasure of the President, he shall hold office for a term of 5 years and on the
expiry of such period continues to hold it until his successor enters upon his office.
 The appointment may terminate either upon dismissal by the President or on resignation
addressed to President by the Governor. [Art.156].
 The Governor shall not be a member of either House of Parliament or of the Legislature of any
State and if any such member is appointed as Governor, his seat as such member shall be
deemed to have been vacated on the date on which he enters upon his office as Governor.
 He shall not hold any other office of profit.
 He shall be entitled without payment of any rent to the use of his official residence and shall
also be entitled to such emoluments, allowances and privileges as may be determined by
Parliament by law, and, until provision in that behalf is so made, such emoluments, allowances
and privileges as are specified in the Second Schedule of the Constitution.
 The emoluments and allowances of the Governor shall not be diminished during his term of
office. [Art.158]

THE POWERS OF THE GOVERNOR OF A STATE

 It is the duty of the Governor that the Government should function according to Constitution.

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 He may recommend to the President for President's rule in the State and, according to Art.
356, "If the president, on receipt of a report from the Governor or otherwise is satisfied that a
situation has arisen in which the Government of the State cannot be carried on in accordance
with the provisions of this Constitution, he may issue a proclamation. By that proclamation the
President may assume to himself all or any of the powers vested in or exercisable by the
Governor or anybody or authority in the State .

 The Governor is to report to the President that a situation has arisen in which the Government
of the State cannot be carried out in accordance with the provisions of the Constitution. Such a
report may sometimes be against a Ministry in power, for example, if it attempts to misuse its
power to subvert the Constitution. It is clear that in such casa, the report cannot be made
according to ministerial advice. Moreover no such advice will be available where a ministry
has resigned and another alternative ministry cannot be formed. Thus, in making report to the
President under Art. 356, the Governor exercises his discretion.

 The Ministers of the State hold office during the pleasure of the Governor. The fact that each
holds his office at the Governor's pleasure indicates that his office is at all times at the Chief
Minister's disposal, for in these matters the Governor, like the King in England, acts on the
advice of the Chief-Minister. Moreover for the effective realisation of the rule of Collective
Responsibility of the Council of Ministers it is necessary that no person should be nominated to
the cabinet except on the advice of the Chief Minister. Secondly no person should be retained
as a member of the cabinet if the Chief-Minister says that he should be dismissed.

 The Governor in terms of Article 156 of the Constitution holds office during the pleasure of the
President.

Dissolution of the Legislative Assembly(Art. 174)

The Governor summons, prorogues and dissolves the Legislative Assembly. In normal
circumstances the Legislative Assembly is not dissolved by the Governor, till the expiry of its normal
tenure of five years. But where ministry has lost the majority and no alternate stable ministry is
possible, he may dissolve the House.
The Governor is not bound to accept the advice of the defeated Ministry to dissolve the house.
In this case he can act according to his discretion. He may or may not dissolve the House. Thus it is
clear that the Governor can dissolve the Legislative Assembly in his discretion. Therefore the Governor
has constitutional power in dismissing a Council of Ministers on his subjective satisfaction that the
Government has lost its majority in the Legislative Assembly and he can very well invite any person to
form the Government.

According to Article 164, the ministers shall hold office during the pleasure of the Governor.
This does not mean that the Governor can dismiss his ministers at any time at his sweet will. The
expression 'during the pleasure' under a Parliamentary form of Government means the confidence of
the majority in the Legislature. He is to exercise his pleasure in accordance with the advice of the
Council of Ministers. This follows from the provision in Article 164(2) which makes the Council of
Ministers collectively responsible to the Legislative Assembly of the State. This means that till a
ministry enjoys the confidence of the majority in the Lower House, the Governor should not dismiss it.

THE POSITION OF THE GOVERNOR IN RELATION

TO HIS COUNCIL OF MINISTERS
In general, the relation between the Governor and his ministers is the same as that between
the President and his ministers, with this important difference that ,while the Constitution does not

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empower the President to exercise any functions 'in his discretion' it authorises the Governor to
exercise some functions 'in his discretion'. [Article 163(1)].
In the exercise of his discretionary pourers the Governor is not required to act on the advice of
Chief Minister or even to seek his advice. The Constitution does not define as to what are the
discretionary powers of the Governor. This raises an important question whether the Governor like
the President is merely a constitutional head or whether he has some real powers. This suspicion is
however unfounded in view of the Parliamentary system of Government adopted in the Constitution.
When a Cabinet, collectively responsible to the Legislature, is to give advice to the Governor in the
discharge of his functions, occasions are almost non-existent from him to act contrary to the advice of
the Cabinet.
In the time of crisis, the Governor can effectively and constitutionally utilize the provision and
act in his discretion particularly in cases where there might be a conflict between the Governor and his
Council on any issue. In view of the responsibility of the Governor to the President, one of the act that
"the Governor's decision as to whether he should act in his discretion in any particular matter is final",
it would be possible for the Governor to act without the advice of his Cabinet even though they are not
specifically mentioned in the Constitution as discretionary functions.

Thus the Governor may exercise, in exceptional circumstances his own discretionary powers in—
(i) The appointment of the Chief Minister ;
(ii) the dismissal of Ministry ;
(iii) the dissolution, prorogation and suspension of the Legislative Assembly; and
(iv) advising the President for the proclamation of emergency.

POSITION OF THE GOVERNOR IN RELATION TO THE PRESIDENT

The powers of the Governor are analogous to those of the President with certain significant
differences. The President is elected to his office, while the Governors are appointed by the President
and hold office during his pleasure and may be dismissed from office by him whereas the President
may be removed from office only through impeachment.
The President addresses his resignation to the Vice-President. The term of office is the same
for the President as for a Governor. The oath of office is more or less alike, but not identical.

The Powers of the Governor can be discussed under the following four heads-

EXECUTIVE POWERS

 The executive power of the State is vested in the Governor to be exercised by him either
directly or through the officer s sub-ordinate to him [Art. 154].
 All executive actions of a State shall be expressed to be taken in his name [Art.164]
 The executive power of a State shall extend to matters in respect to which the Legislature of
the State has power to make laws.
 In any matter with respect to which both the Legislature of a State and Parliament have power
to make laws & if it is a matter mentioned in the Concurrent List, the executive power of the
State shall be subject to and limited by the executive power conferred by the Constitution or by
any law made by Parliament upon the Union or authorities thereof. [Art. 162]
 The Government appoints the Chief Minister and other Ministers on his advice, and the Council
of Ministers hold office during his pleasure but the Council of Ministers is collectively
responsible to the State Legislature or to the Lower House of such Legislature where the

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Legislature consists of two Chambers. This makes the Governor constitutional head like the
President and determines the character of' State Government of Executive as a Parliamentary
Government of Executive.

LEGISLATIVE POWERS
The most important Legislative power or the Governor is his ordinance making
power, This Ordinance making power is similar to that of the President. Under Article 123, whenever
the Legislature is not in session and if the Government is satisfied that circumstances exist which
require him to take immediate action, he may legislate by Ordinance, however the Governor cannot
issue an Ordinance without previous instruction from the President in case in which–
(a) Bill would have required his previous sanction, or
(b) required to be reserved under the Constitution for the assent of the President.

FINANCIAL POWERS
A money bill cannot be introduced in the Legislative Assembly of the State without the
recommendation of the Governor. No demand of grants can be made except on the recommendation of
the Governor. The Governor is required to cause to be laid before the House or Houses of the
Legislature the annual financial statement, known as Budget.

JUDICIAL POWERS

The Governor of a State is empowered to grant pardon, reprieve, respite, or remission, of

punishment or to suspend, remit or commute the sentence in respect of any offence against any law
relating to a matter to which the executive power of the State extends. [Art. 161].

The power of granting pardon under Article 161 is very wide and does not contain any
limitation as to the time on which and the occasion on which and the circumstances in which the said
power could be exercised. But the said power being a constitutional power is subject to judicial review
on certain limited grounds. The Court, therefore, would be justified in interfering with an order passed
by the Governor in exercise of power under Article 161 of the Constitution, if the Governor is found to
have exercised the power himself without being advised by the Government or if the Governor
transgresses the jurisdiction in exercising the same or it is established that the Governor has passed
the order without the application of mind or the order in question is a malafide one or the Governor
has passed the order on some extraneous consideration.

Governors do not have diplomatic, military and emergency powers which the President has.
The Governor of Assam has certain discretionary powers in tribal affairs in which he is not required to
act according to the advice of his Ministers.
The President also has certain discretionary powers. The executive powers of the Governor is
subject to and limited in some respects by the executive power of the President to whom the Governor
is required to report situation requiring the proclamation of emergency.
The President and the Governors have all got the power to veto legislation by withholding
their assent to it.

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COUNCIL OF MINISTERS

According to Article 163(1) there shall be a Council of Ministers with the Chief Minister at the
head to 'aid and advise' the Governor. The Council of Ministers in the State is constituted and functions
in the same way as the Union Cabinet.
The Chief Minister is appointed by the Governor. As a matter of a well established convention
it is the leader of the Legislative Assembly who should be appointed as the Chief Minister. Thus in
normal circumstances the choice of the Governor is limited to the leader of the majority party.
But there may be circumstances where the Governor would have to exercise his discretion in
selecting the Chief Minister. The other ministers are appointed by the Governor on the advice of the
Chief Minister. In the appointment of other ministers the Chief Minister has the final say because it is
the Chief Minister who has to run the Government. This is, indeed, necessary in order to ensure the
successful operation of the rule of collective responsibility.

The Governor may appoint a person as a Chief Minister or a Minister who is not a member of
either House of the State Legislature. But he must be elected to the House of State Legislature within
the period of six months. If he does not become member of the Legislature within the six months of his
appointment as Chief Minister or Minister he will cease to be Chief Minister or Minister. Before a
Minister enters upon his office, the Governor is to administer to him the prescribed oath of office and
secrecy.

A person convicted of criminal offence and sentenced to more than two years of
imprisonment cannot be appointed as Chief Minister.'

According to Article 164(1), the ministers shall hold office during the 'pleasure' of the Governor. But
this pleasure is to be exercisable by the, Governor on the advice of the Chief Minister. This follows
from Clause (2) of Article 164 which says that the Council of Ministers shall be collectively
responsible to the Legislative Assembly of the State.
Till the ministry enjoys the confidence of the Lower House of a State, the Governor is bound to
accept the advice of the Chief Minister. Indeed, it would be strange that a ministry responsible for its
acts and policies to the legislature can be dismissed by the Governor. This means that a minister holds
office during the pleasure of the Chief Minister. The Governor is bound to dismiss a Minister as and
when advised by the Chief Minister. It is only then that the smooth functioning of the principle of
collective responsibility can be maintained.

Article 167(a) says that it is the duty of Chief Minister of State to communicate all decisions of the
Council of Ministers relating to the administration of the State and proposals for legislation. If the
Governor asks him to furnish such information it is the duty of the Chief Minister to do so. The Chief
Minister, if required by the Governor, will also submit for consideration of the cabinet any matter on
which a decision has been taken by a Minister which has not been considered by the cabinet.

Article 167(c) further strengthens the rule of collective responsibility and gives power to the Chief
Minister to review the decision taken by any minister individually. When a decision is taken by any
minister without reference to the cabinet, Governor may require it to be considered by the cabinet.
The Governor cannot override a decision of Minister. If the cabinet stands behind him the
minister remains and the Governor is bound to accept his decision. If, however, the cabinet does not
uphold his decision he will have to quit the ministry. If he insists to remain he will be dismissed by the
Governor on the advice of the Chief Minister. It is a safeguard which ensures the working of the

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principle of collective responsibility and the power of the Chief Minister and not a power which
interferes with the Government.

STATE LEGISLATURE

The Legislative Assembly

1) For every State there shall be a Legislative Assembly which shall consist of the Governor; and
(a) in the State of Andhra Pradesh, Maharashtra, Karnataka, Bihar, Madhya Pradesh, Tamil
Nadu and Uttar Pradesh, two Houses,
(b) in other States, one House.

2) Where there are two Houses of the Legislature of a State, one shall be known as the Legislative
Council and the other as the Legislative Assembly, and where there is only one House, it shall
be known as the Legislative Assembly. [Art. 168]

The Legislative Assembly shall consist of members elected by the major people of the State.
The territorial constituencies shall be so arranged that there shall be not more than one representative
for every 75000 of the population. The total number of members in the assembly shall be not more
than 500 & not less than 60 according to the population of the State. There shall be a proportionately
equal representation in respect of each territorial constituency within any particular State. The figures
published at the last census shall be the basis for allotting the number of members for any territorial
constituency. The number and ratio of members shall be readjusted by such authority, in such manner
and with effect from such date as Parliament may by law determine. The duration of the Legislative
Assembly is for a period of 5 years the expiry of which operates as a dissolution of the Assembly. The
Governor may dissolve it earlier.

Legislative Council-
In certain states, legislative council also exists. Generally states which are big in size and
population possess legislative council along with legislative assembly; the legislative council is upper
chamber in the state. It may control, guide or supervise functions of legislative assembly. Generally,
persons of wide experience are nominated to such councils so that those intelligent persons who could
not get them elected may become members of this council.

Composition of the Legislative Councils-

1) The total number of members of the Legislative Council of a State having such a Council shall
not exceed one-third of the total number of members in the Legislative Assembly of that
State:
Provided that the total number of members in the Legislative Council of a State shall in no
case be less than forty.

2) Until Parliament by law otherwise provides, the composition of the Legislative Council of a
State shall be as provided in clause (3).

3) Of the total number of Members of the Legislative Council of a State-

(a) as nearly as may be, one-third shall be elected by electorates consisting of members of
municipalities, district boards and such other local authorities in the State as Parliament may
by law specify.

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(b) as nearly as may be, one twelfth shall be elected by electorates consisting of persons residing
in the State who have been for at least three years graduates of any university in the territory
of India or have been for at least three years in possession of qualifications prescribed by or
under any law made by Parliament as equivalent to that of a graduate of any such university;
(c) as nearly as may be, one-twelfth shall be elected by electorates consisting of persons who have
been for at least three years engaged in teaching in such educational institutions within the
State, not lower in standard than that of a secondary school, as may be prescribed by or under
any law made by Parliament;
(d) as nearly as may be. one-third shall be elected by the members of the Legislative Assembly of
the State from amongst persons who are not members of the Assembly;
(e) the remainder shall be nominated by the Governor, in accordance with the provisions of clause
(5) ;

4) The members to be elected under sub-clauses (a), (b) and (c) of clause (3) shall be chosen in such
territorial constituencies as may be prescribed by or under any law made by Parliament, and the
elections under the said sub-clauses and under sub-clause (d) of the said clause shall be held in
Accordance with the system of proportional representation by means of the single transferable vote.
5) The members to be nominated by the Governor under sub-clause (e) of clause (3) shall consist of
persons having special knowledge or practical experience in respect of such matters as the following,
namely—Literature, science, art, co-operative movement and social service. [Art. 171]

DURATION AND RELATIONS BETWEEN

TWO HOUSES OF THE STATE LEGISLATURE
Every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years from
the date appointed for its first meeting and no longer and the expiration of the said period of five years
shall operate as dissolution of the Assembly:

Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by
Parliament by law for a period not exceeding one year at a time and not extending in any case beyond
a period of six months after the Proclamation has ceased to operate.
The Legislative Council of a State shall not be subject to dissolution. As nearly as possible one-
third of the members thereof shall retire as soon as limy be on the expiration of every second year in
accordance with the provisions made in that behalf by Parliament by law.

Qualifications for membership[Art. 173]

A person shall not be qualified to be chosen to fill a seat in the Legislature of State unless he:
1) is a citizen of India and makes and subscribes before some person authorized in that behalf by
the Election Commission on an oath or affirmation according to the form set out for the
purpose in the Third Schedule;
2) is in the case of seat in the Legislative Assembly, not less than twenty-five years of age and, is
in the case of seat in the Legislative Council, not less than thirty years of age; and
3) Possesses such other qualifications as may be prescribed in that behalf by or under any law
made by Parliament.

Disqualifications for membership[Art. 191]

1) A person shall not be disqualified for being chosen as, and for being, a member of the
Legislative Council of a State—

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(a) if he holds any such office of profit under the Government of India or the Government of
any State specified in the First Schedule, as is declared by Parliament by law to disqualify
its holder ;
(b) if Ile is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent ;
(d) if he is not a citizen of India or has voluntarily acquired the citizenship of a foreign State or
is under any acknowledgement or allegiance or adherence to a foreign State;
(e) if he is disqualified by or under any law made by Parliament. The necessary qualifications
and disqualifications are prescribed by Parliament in the Representation of the Peoples
Act, 1951.

2) For the purposes of this Article a person shall not be deemed to hold an office of profit under
the Government of India or the Government of any State specified in the first Schedule by
reason only that he is a Minister either for the Union or for such State.

Decision on questions as to disqualifications of members-

The Constitution (44th Amendment) Act, 1978 substituted the old Article 192 as it was prior
to 42nd Amendment Act. 1976. According to the new Article 192(1) if any question arises as to
whether a member of House of the Legislature or a State has become subject to any of the
disqualifications mentioned in clause (I) of Article 191, the question shall be referred for the decision
of Governor and his decision shall be final. (2) Before giving any decision on any such question the
Governor shall consult the Election Commission and the Election Commission may, for this purpose,
made such enquiry as if thinks fit.

STATE JUDICIARY
The High Courts of India: Composition, Appointment of Judges
Article 214 provides that every State has a High Court operating within its territorial
jurisdiction. But the Parliament has the power to establish a common High Court for two or more
States (Article 231).
In India, neither the State executive nor the State Legislature has any power to control the
High Courts or two after its Constitution or organisation. It is only Parliament which can do it. In case
of Union Territories the Parliament may by law extend the jurisdiction of a High Court to or exclude
the jurisdiction of a High Court from any Union Territory, or create a High Court for a Union Territory.
Thus Delhi, a Union Territory, has a separate High Court of its own while the Madras High
Court has jurisdiction over Pondicherry, the Kerala High Court over Lakshadweep and Mumbai High
Court over Dadra and Nagar Haveli, the Kolkata High Court over Andaman and Nicobar Islands, the
Punjab High court over Chandigarh.
Composition of High Courts:
i. Every High Court shall consists of a Chief Justice and such other judges as the President of
India may from time to time appoint.
ii. Besides, the President has the power to appoint
(a) Additional Judges for a temporary period not exceeding two years, for the clearance of
areas of work in a High Court;
(b) an acting judge, when a permanent judge of a High Court (other than Chief Justice) is
temporarily absent or unable to perform his duties or is appointed to act temporarily as
Chief Justice.

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But neither an additional nor an acting Judge can hold office beyond the age of 62 years age of
retirement raised from 60 to 62.
Appointment and Conditions of Office of a Judge of a High Court:
Every Judge of a High Court shall be appointed by the President. In making the appointment,
the President shall consult the Chief Justice of India, the Governor of the State (and also the Chief
Justice of that High Court in the matter of appointment of a Judge other than the Chief Justice).
Tenure: A Judge of the High Court shall hold office until the age of 62 years. Every Judge, permanent,
additional or acting, may vacate his office earlier in any of the following ways-
(i) by resignation in writing addressed to the President;
(ii) by being appointed a Judge of the Supreme Court or being transferred to any other High
Court, by the President;
(iii) by removal by the President on an address of both Houses of Parliament (supported by the
vote of 2/3 of the members present) on the ground of proved misbehaviour or incapacity,.
The mode of removal of a Judge of the High Court shall thus be the same as that of a judge
of the Supreme Court.

Salary and Allowances of the Judges:

It is provided that the judges of the High Court shall draw such salaries and allowances, as the
Parliament may by law fix from time to time. In addition they will also be entitled to receive other
prescribed allowances.
By providing the expenditure salaries and allowances the judges shall be charged on the
consolidated fund of State. These cannot be reduced except in financial emergency. Nor can the
allowances and rights be varied by Parliament to the disadvantage of a judge during his/her term of
office.

INDEPENDENCE OF JUDGES ENSURED

As in the case of the Judges of the Supreme Court, the Constitution seeks to maintain the indepen-
dence of the Judges of the High Court s by a number of provisions:-
(i) By laying down that a Judge of the High Court shall not be removed, except in the manner
provided for the removal of a Judge of the Supreme Court (Article 218);
(ii) by providing that the expenditure in respect of the salaries and allowances of the Judges
shall be charged on the Consolidated Fund of the State [Article 202 (3)(d)];
(iii) by specifying in the Constitution the salaries payable to the Judges and providing that the
allowances of a Judge or his rights in respect of absence or pension shall not be varied by
Parliament to his disadvantage after his appointment (Article 221) except under a
Proclamation of Financial Emergency [Article 360 (4)(b)].
(iv) by laying down that after retirement a permanent Judge of High Court shall not plead or act
in a Court or before any authority in India, except the Supreme Court and a High Court
other than the -High Court in which he had held his office (Article 220).
Control of the Union over High Court:
The control of the Union over a High Court in India is exercised in the following matters:
(i) Appointment, (Article 217), transfer from one High Court to another (Article 222) and
removal [Article 217(1)] and determination of dispute as to age of Judges of High Courts
[Article 217 (3)];
(ii) the Constitution and organisation of High Courts and the power to establish a common
High Court for two or more States (Article 231); and
(iii) to extend the jurisdiction of a High Court to, or to exclude it jurisdiction from, a Union
Territory, are all exclusive powers of the Union Parliament (Article 231).

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Jurisdiction of High Courts:

The constitution does not attempt detailed definitions or classification of the different types of
jurisdiction of the High Courts. It was presumed that the High Court s which were functioning with
well- defined jurisdiction at the time of the framing of the Constitution would continue with it and
maintain their position as the highest courts in the States. The Constitution, accordingly, provided that
the High Courts would retain their existing jurisdiction and any future law that was to be made by the
Legislatures.
Besides, the original and appellate jurisdiction, the Constitution vested in the High Court s four
additional powers:
i. The power to issue writs or orders for the enforcement of Fundamental Rights or for any
other purpose;
ii. the power of superintendence over subordinate courts;
iii. the power to transfer cases to themselves pending in the subordinate courts involving
interpretation of the Constitution; and
iv. the power to appoint officers.
(a) Original and Appellate Jurisdiction:
The High Courts are primarily courts of appeal. Only in matters of admiralty, probate,
matrimonial, contempt of Court, enforcement of Fundamental Rights and cases ordered to be
transferred from a lower court involving the interpretation of the Constitution to their own file, they
have original jurisdiction. The High Courts of Bombay, Calcutta and Madras exercise original civil
jurisdiction when the amount involved exceeds specified limit. In criminal cases it extends to case
committed to them by Presidency Magistrates.
On the appeal side they entertain appeals in civil and criminal cases from their subordinate
courts as well as from their original side. For historical reasons and as a result of the specific
provisions in the Government of India Act, 1935, no High Court has any original jurisdiction in any
matter concerning revenue. In 1950 Constitution removed this restriction.
(b) Power of Superintendence and Transfer:
Every High Court has a power of superintendence over all courts and tribunals throughout the
territory in relation to which it exercises jurisdiction, excepting military tribunals [Art. 227]. This
power of superintendence is a very wide power in as much as it extends to all courts as well as
tribunals within the State, whether such court or tribunal is subject to the appellate jurisdiction of the
High Court or not.
Further, this power of superintendence would include a revisional jurisdiction to intervene in
case of gross injustice or non-exercise of abuse of jurisdiction, even though no appeal or revision
against the orders of such tribunal was otherwise available.
However, this jurisdiction of High Court has been taken away in respect of Administrative
Tribunals set up under Article 323A, by the administrative Tribunals Act. 1985. If the High Court is
satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the
interpretation of the Constitution, it may transfer the case of itself.
After the case has come to the file of the High Court, it may dispose of the whole case itself, or
may determine the constitutional questions involved and return the case to the court from which it
has been withdrawn together with a copy of its judgement on such question and direct it to dispose of
the case in conformity with such judgement.
The Constitution, thus, denies to subordinate courts the right to interpret the Constitution so
that there may be the maximum possible uniformity as regards constitutional decisions. It is
accordingly, the duty of the subordinate courts to refer to the High Court a case which involves a
substantial question of law as to the interpretation of the Constitution and the case cannot be disposed
of without the determination of such question. The High Court may also transfer the case to itself upon
the application of the party in the case.

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(c) Writ Jurisdiction:

Article 226 of the Constitution empowers every High Court, throughout the territories in
relation to its which exercises jurisdiction to issue to any person or authority, including in appropriate
cases, any Government, within those territories, directions, orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warrantor and certiorari, or any of them, for the
enforcement of any of the Fundamental Rights and for any other purpose.
The Constitution by Forty-second amendment omitted the provision for any other purpose ,
but the Forty-fourth amendment has restored it. The peculiarity of this jurisdiction is that being
conferred by the Constitution, it cannot be taken away or abridged by anything short of an amendment
of the Constitution itself.
Although the Supreme Court and the High Courts have concurrent jurisdiction in the
enforcement of Fundamental Rights, the Constitution does not confer to the High Court s the special
responsibility of protecting Fundamental Rights as the Supreme Court is vested with such a power.
Under Article 32 the Supreme Court is made the guarantor and protector, of Fundamental Rights
whereas in the case of High court the power to enforce Fundamental Rights is part of their general
jurisdiction.
The jurisdiction to issue writs under these Articles is larger in the case of High Court in as
much as while the Supreme Court can issue them only where a fundamental right has been infringed, a
High Court can issue them not only in such cases but also where an ordinary legal right has been
infringed, provided a writ is a proper remedy in such cases, according to well-established principles.
(d) Court of Record:
The High Court is a court of record and has all the powers of such a court including the power to
punish for contempt of itself. The two characteristics of a court of record are that the records of such a
Court are admitted to be of evidentiary value and that they cannot be questioned when produced
before any court and that it has the power to punish for contempt of itself. Neither the Supreme Court
nor the Legislature can deprive a High Court of its power of punishing contempt of itself.
OFFICERS AND SERVANTS AND THE EXPENSES OF HIGH COURTS

Article 229 of the Constitution says:

(a) Appointments of officers and servants of a High Court are made by the Chief Justice of the High
Court.
(b) Subject to the provisions of any law made by the Legislature of the State, the conditions of
service of Officers and servants of a High Court shall be such as may be prescribed by the rules
made by the Chief Justice of the High Court.
(c) The administrative expenses of the High Court including all salaries, allowances, etc. are
charged upon the Consolidated Fund of the State.

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THE RELATION BETWEEN CENTRE AND STATE IN INDIA

Position of the States in Indian Union:

In India, before the formation of the federation the States were not ‘sovereign’ entities.

As such, there was no need for safeguards to protect ‘States’. On account of the exigencies of the
situation, the Indian federation has acquired characteristics which are quite different from the
American model.

(i) The residuary powers under the Indian Constitution are assigned to the Union and not to the
States. However, it may be noted that the Canadian Constitution does the same mode of distrib-
uting the powers cannot be considered as eroding the federal nature of the Constitution.

(ii) Though there is a division of powers between the Union and the States, the Indian
Constitution provides the Union with power to exercise control over the legislation as well as the
administration of the States. Legislation by a State can be disallowed by the President, when
reserved by the Governor for his consideration.

The Governor is appointed by the President of the Union and holds office “during his pleasure”.
Again these ideas are found in the Canadian Constitution though not in the Constitution of the
U.S.A.

(iii) The Constitution of India lays down the Constitution of the Union as well as the States, and
no State, except Jammu and Kashmir, has a right to determine its own (State) Constitution.

(iv) When considering the amendment of the Constitution we find that except in a few specific
matters affecting the federal structure, the States need not even be consulted in the matter of
amendment of the Constitution. The bulk of the Constitution can be amended by a Bill in the
Union Parliament being passed by a special majority.

(v) In the case of the Indian Constitution, while the Union is indestructible, the States are not. It
is possible for the Union Parliament to reorganise the States or to alter their boundaries by a
simple majority in the ordinary process of legislation.

The ‘consent’ of the State Legislature concerned is not required; the President has only to
‘ascertain’ the views of the Legislatures of the affected States. The ease with which the federal
organisation may be reshaped by an ordinary legislation by the Union Parliament has been
demonstrated by the enactment of the States Reorganisation Act, 1956. A large number of new
States have, since, been formed.

(iv) Under the Indian Constitution, there is no equality of representation of the States in the
Council of States. Hence, the federal safeguard against the interests of the lesser States being
overridden by the interests of the larger or more populated States is absent under our
Constitution. Its federal nature is further affected by having a nominated element of twelve
members against 238 representatives of the States and Union Territories.

Distribution of Powers: Legislative, Administrative and Financial:

Our Constitution is one of the very few that has gone into details regarding the relationship
between the Union and the States. A total of 56 Articles from Article 245 to 300 in Part XI and
XII are devoted to the State-Centre relations. Part XI (Articles 245-263) contains the legislative
and administrative relations and Part XII (Articles 246-300) the financial relations.

By going into great details of the relations, the Constitution framers hope to minimize the
conflicts between the centre and the states. By and large, the confrontations between the two
have been minimal.

Legislative Relations (Articles 245-255):

From point of view of the territory over which the legislation can have effect, the jurisdiction of
a State Legislature is limited to the territory of that State. But in the case of Parliament, it has
power to legislate for the whole or any part of the territory of India i.e.

States, Union Territories or any other areas included for the time being in the territory of India.
Parliament has the power of ‘extraterritorial legislation’ which means that laws made by the
Union Parliament will govern not only persons and property within the territory of India, but also
Indian subjects resident and their property situated anywhere in the world. Only some provisions
for scheduled areas, to some extent, limit the territorial jurisdiction of Parliament.

Legislative Methods of the Union to Control over States:

(i) Previous sanction to introduce legislation in the State Legislature (Article 304).

(ii) Assent to specified legislation which must be reserved for consideration [Article 31 A (1)].

(iii) Instruction of President required for the Governor to make Ordinance relating to specified
matters [Article 213(1)].

(iv) Veto power in respect of other State Bills reserved by the Governor (Article 200).

The Three Lists:

As for the subjects of legislation the Constitution has adopted, as if directly from the
Government of India Act, 1935, a three-fold distribution of legislative powers between the Union
and the States, a procedure which is not very common with federal constitutions elsewhere.

The Constitutions of the United States and Australia provided a single enumeration of powers—
power of the Federal Legislature— and placed the residuary powers in the hands of the States.
Canada provides for a double enumeration, dividing the legislative powers between the Federal
and State legislatures. The Indian Constitution introduces a scheme of three-fold enumeration,
namely, Federal, State and Concurrent.

List I includes all those subjects which are in the exclusive jurisdiction of Parliament.

List II consist of all the subjects which are under exclusive jurisdiction of the State Legislature,
and

List III which is called the Concurrent List, consists of subjects on which both Parliament and
the State legislatures can pass laws.

(i) Union List:

List I, or the Union List, includes 99 items, including residuary powers, most of them related to
matters which are exclusively within the jurisdiction of the Union. Subjects of national
importance requiring uniform legislation for the country as a whole are inducted in the Union
List.

The more important examples are defence, armed forces, arms and ammunition, atomic energy,
foreign affairs, coinage, banking and insurance. Most of them are matters in which the State
legislatures have no jurisdiction at all.

But, there are also items dealing with inter-state matters like inter-state trade and commerce
regulation and development of inter-state rivers and river valleys, and inter-state migration,
which have been placed under the jurisdiction of the Union Parliament.

Certain items in the Union List are of such a nature that they enable Parliament to assume a role
in certain spheres in regard to subjects which are normally intended to be within the jurisdiction
of the States; one such example is that of industries.

While assigned primarily to the State List; industries, the control of which by the Union is
declared by a law of Parliament, to be expedient in the public interest’ are to be dealt with by
parliamentary legislation alone. Parliament, by a mere declaration, can take over as many
industries as it thinks fit.

It is under this provision that most of the big industries, like iron, steel and coal, have been taken
over by Parliament under its jurisdiction. Similarly, while museums, public health, agriculture
etc. come under State subject, certain institutions like the National Library and National Museum
at New Delhi and the Victoria Memorial in Calcutta have been placed under the jurisdiction of
Parliament on the basis of a plea that they are financed by the Government of India wholly or in
part and declared by a law of Parliament to be institutions of national importance.

The university is a State subject but a number of universities have been declared as Central
Universities and placed under the exclusive jurisdiction of Parliament. Elections and Audit, even
at the State level, were considered matters of national importance. The Extensive nature of the
Union List thus places enormous powers of legislation even over affairs exclusively under the
control of the States in the hands of Parliament.

(ii) State List:

List II or the State List, comprises 61 items or entries over which the State Legislature has
exclusive power of legislation. The subject of local importance, where variations in law in
response to local situations may be necessary, has been included in the State List.

Some subjects of vital importance in the list are State taxes and duties, police, administration of
justice, local self-government, public health, agriculture, forests, fisheries, industries and
minerals.

But, in spite of the exclusive legislative jurisdiction over these items having been given to the
States, the Constitution, through certain reservations made in the Union List has given power to
Parliament to take some of these items under its control. Subject to these restrictions, one might
say, the States have full jurisdiction over items included in the State list.

(iii) Concurrent List:

The inclusion of List III or the Concurrent List, in the Constitution gives a particular significance
to the distribution of legislative power in the Indian federal scheme. The Concurrent List consists
of 52 items, such as criminal law and procedure, civil procedure, marriage, contracts, port trusts,
welfare of labour, economic and social planning.

These subjects are obviously such as may at some time require legislations by Parliament and at
other by a State Legislature. The provision of a Concurrent List has two distinct advantages.

In certain matters in which Parliament may not find it necessary or expedient to make laws, a
Sate can take the initiative, and if other States follow and the matter assumes national
importance, Parliament can intervene and bring about a uniform piece of legislation to cover the
entire Union Territory.

Similarly, if a State finds it necessary to amplify a law enacted by Parliament on an item

included in the Concurrent List in order to make it of a greater use of its own people, it can do so
by making supplementary laws.

The items included in the Concurrent List can be broadly divided into two groups-those dealing
with general laws and legal procedure, like criminal law, criminal procedure, marriage, divorce,
property law, contracts etc, and those dealing with social welfare such as trade unions, social
security, vocational and technical training of labour, legal, medical and other professions etc.;
while the items coming under the first group are of primary importance to the Union
Government, they have been left, by convention, to Parliament. In matters of social welfare, it is
open to the State legislatures either to take the initiative in making laws or to enact laws which
are supplementary to the Parliamentary laws.

Predominance of Union Law:

In case of over-lapping of a matter between the three Lists, predominance has been given to the
Union Legislature, as under the Government of India Act, 1935. Thus, the power of the State
Legislature to legislate with respect to matters enumerated in the State List has been made
subject to the power of the Union Parliament to legislate in respect of matters enumerated in the
Union and Concurrent Lists, and the entries in the State List have to be interpreted accordingly.

In the Concurrent sphere, in case of repugnancy between a Union and a State law relating to the
same subject, the former prevails. If however, the State law was reserved for the assent of the
President and has received such assent, the State law may prevail notwithstanding such
repugnance. But it would still be competent for Parliament to override such State law by
subsequent legislation.

Residuary Powers:

The Constitution vests the residuary power, i.e., the power to legislate with respect to any matter
not enumerated in any one of the three Lists in the Union Legislature (Art. 248). It has been left
to the courts to determine finally as to whether a particular matter falls under the residuary power
or not.

It may be noted, however, that since the three lists attempt an exhaustive enumeration of all
possible subjects of legislation, and courts generally have interpreted the sphere of the powers to
be enumerated in a liberal way, the scope for the application of the residuary powers has
remained considerably restricted.

Expansion of the Legislative Powers of the Union under Different Circumstances:

(a) In the National Interest:

Parliament shall have the power to make laws with respect to any matter included in the State
List for a temporary period, if the Council of States declares by a resolution of 2/ 3 of its
members present and voting, that it is necessary in the national interest.

(b) Under the Proclamation of National or Financial Emergency:

In this circumstance, Parliament shall have similar power to legislate with respect to State
Subjects.

(c) By Agreement between States:

If the Legislatures of two or more States resolve that it shall be lawful for Parliament to make
laws with respect to any matters included in the State List relating to those States, Parliament
shall have such power.

It shall also be open to any other State to adopt such Union legislation in relation to itself by a
resolution passed on behalf of the State legislature. In short, this is an extension of the
jurisdiction of the Union Parliament by consent of the Legislatures.

(d) To implement treaties:

Parliament shall have the power to legislate with respect to any subject for the purpose of
implementing treaties or international agreements and conventions.

(e) Under a Proclamation of Failure of Constitutional Machinery in the States:

When such a Proclamation is made by the President, the President may declare that the powers
of the Legislature of the State shall be exercisable by or under the authority of Parliament.

Administrative Relations (Articles 256-263):

The distribution of executive powers between the Union and the States follows, in general, the
pattern of distribution of the legislative powers. The executive power of a State is treated as
coextensive with its legislative powers, which means that the executive power of a State extends
only to its territory and with respect to those subjects over which it has legislative competence.

Looking at from the point of view of the Union Government, we can say that the Indian
Constitution provides exclusive executive power to the Union over matters with respect to which
Parliament has exclusive powers to make laws, (under List I of Schedule VII) and over the
exercise of powers conferred upon it, under Article 73, by any treaty or agreement at the
international level. On the other hand, the States have exclusive executive powers over matters
included in List II.

In matters included in the Concurrent List (List III) the executive function ordinarily remains
with the States, but in case the provisions of the Constitution or any law of Parliament confer
such functions expressly upon the Union, the Union Government is empowered to go beyond
giving directions to the State executive to execute a Central law relating to a Concurrent subject
and take up the direct administration of Union law relating to any Concurrent subject.

In the result, the executive power relating to Concurrent subjects remains with the States, except
in two cases-(a) Where a law of Parliament relating to such subject vests some executive
functions specifically in the Union, e.g., the Land Acquisition Act, 1894; the Industrial Disputes
Act, 1947 [Provision to Art. 73(1)].

So far as these functions specified in such Union Law are concerned, it is the Union and not the
States which shall have the executive power while the rest of the executive power relating to the
subjects shall remain with the States, (b) where the provisions of the Constitution itself vest some
executive functions upon the Union.

Thus, (i) the executive power to implement any treaty or international agreement belongs
exclusively to the Union; (ii) the Union has the power to give directions to the State
Governments as regards the exercise of their executive power in certain matters.

The Constitution has devised techniques of control over the States by the Union to ensure that
the State governments do not interfere with the legislative and executive of the Union. Some of
these administrative avenues of control are as under:

In Normal Times:

(i) The power to appoint and dismiss the Governor (Article 155-156)

(ii) The power to appoint other dignitaries in the State such as judges of the High Court,
members of the State Public Service Commission (Article 217, 317).

There are some other specified agencies for Union Control

(i) Directions to the State Government:

The Constitution prescribes a Coercive Sanction for the enforcement of the directions issued
under any of the foregoing powers, namely the power of the President to make a Proclamation
under Article 356.

(ii) Delegation of Union Functions:

While Legislating on a Union Subject, Parliament may delegate powers to the State
Governments and their officers in so far as the Statute is applicable in the respective States
[Article 258 (2)].

(iii) All-India Services:

Besides the person serving under the Union and the States, there are certain services which are
‘common to the Union and the States’. There are called ‘All-India Services’ of which the Indian
Administrative service and the Indian Police Service are the existing examples [Article 312 (2)].

The Indian Constitution has provision for the Organisation of certain all-India services, recruited
and controlled by the Union Government as far as their general administration is concerned. The
British Government had instituted the Indian Civil Services (ICS) in order to establish a kind of
direct control over the provincial administration.

The idea was adopted by the Constituent Assembly and, under Article 312; power has been given
to the Council of States, by a resolution supported by not less than a two-thirds majority of the
members present and voting, to constitute all- India service common to the Union and the States.
It was further provided that the Indian Administrative Service (IAS) and the Indian Police
Service (IPS), which had been constituted before the Constitution came into force, would be
deemed to have been constituted under this Article. The Union Government is able to penetrate
quite deep into the administrative affairs of the States through these all India services.

The IAS and the IPS are not the only all-India services. Serial new services, governed by the
same conditions, have been added, like the Indian Engineering Service, the Indian Economic
Service, the Indian Statistical Service, the Indian Agriculture Service and the Indian Education
Service.

(iv) Grant-in-Aid:

The Parliament is given such powers to make such grants as it may deem necessary to give
financial assistance to any State which is in need of such assistance (Article 275). Besides this,
the Constitution provides for specific grants on the following two matters:

(i) (a) For schemes of development;

(b) For welfare of scheduled tribes;

(c) For raising the level of administration of scheduled areas.

(ii) To the State of Assam, for the development of the tribal areas in that State [Article 275 (1)]

(v) Inter-state Council:

Article 263 says that the President is empowered to establish an inter-State Council. The
Constitution assigned three fold duties to this body.

(a) To investigate and discuss subjects of common interest between the Union and the States or
between two or more States;

(b) Research in such matters as agriculture, forestry, public health etc., and

(c) To make recommendations for co-ordination of policy and action relating to such subjects.

The Sarkaria Commission has recommended the Constitution of a permanent inter-State Council.
Such a council, consisting of six Union Cabinet Ministers and the Chief Ministers of all the
States, has been created in April 1990.

(vi) Inter-State Commerce Council:

For the purpose of enforcing the provisions of the Constitution, relating to the freedom of trade,
commerce and intercourse throughout the territory of India (Article 301-305), Parliament is
empowered to constitute as authority similar to the Inter-State Commerce Commission in the
U.S.A. and to confer on such authority such powers and duties as it may deem fit (Article 307).
(vii) Extra-Constitutional Bodies:

Apart from the above Constitutional agencies for Union Control, there are some advisory bodies
and conferences which held at the Union level which further the co-ordination of State policy
and eliminate differences as between the States.

(viii) Planning Commission:

This extra-Constitutional and non-statutory body was set up by a resolution (1950) of the Union
Cabinet and its main objective was to formulate an integrated Five Year Plan for economic and
social development and to act as an advisory body to the Union Government.

(ix) National Development Council (NDC):

This council was formed in 1952 as an adjunct to the Planning Commission to associate the
States in the formulation of the Plans. The main functions of this council are:

(a) To strengthen and mobilize the efforts and resources of the nation in support of the plans;

(b) To promote common economic policies in all vital spheres; and

(c) To ensure the balanced and rapid development of all parts of the country.

(x) National Integration Council (NIC):

Another non-constitutional body was created in 1986 to deal with the welfare measures for the
minorities on an all India basis. Some of the burning issues before it were communal harmony,
increased violence by secessionists, the problems in respect of Punjab, Kashmir, and Ram
Janambhoomi-Babri Masjid.

During Emergency:

In ‘Emergencies’ the government under the Indian Constitution will work as if it were a unitary
government.

Some of the important Provisions during ‘Emergency’ are as under:

(i) During a Proclamation of Emergency, the power of the Union to give directions extends to the
giving of directions as to the manner in which the executive power of the State is to be exercised,
relating to any matter [Article 353(a)]. (So as to bring the State Government under the complete
control of the Union, without suspending it).

(ii) Upon a Proclamation of failure of Constitutional machinery in a State, the President shall be
entitled to assume to himself all or any of the executive powers of the State [Article 356(1)].

During a Proclamation of Financial Emergency:

(a) To observe canons of financial propriety, as may be specified in the directions [Article
360(3)].

(b) To reduce the salaries and allowances of all or any class of persons serving in connection
with the affairs of the Union including the Judges of the Supreme Court and High Courts [Article
360(4)(b)].

(c) To require all Money Bills or other Financial Bills to be reserved for the consideration of the
President after they are passed by the Legislature of the State [Article 360(4)].

Financial Relations Related to the Distribution of Revenue (Article 264-281):

Financial Relations:

All feasible sources of taxation have been listed and allocated either to the Centre or to the
States. These are as follows:

(i) There are certain items of revenue in the State List which are levied, collected and
appropriated by the States. For example, naval revenue etc.;

(ii) There are certain-items of revenue in the Union List which are levied, collected and
appropriated by the Union, e.g. Customs duties etc.;

(iii) There are certain duties levied by the Union but collected and appropriated by the States. For
example, stamp duties etc.;

(iv) There are certain taxes levied and collected by the Union but assigned to the States e.g.
succession and estate duties, taxes on railway fares and freights, etc;

(v) There are certain taxes levied and collected by the Union and distributed between the Union
and the States, e.g. excise duties etc.

Consolidated Funds and Public Accounts of India and of the States:

Subject to the provisions of Article 267 and to the provisions of this Chapter with respect to the
assignment of the whole or part of the net proceeds of certain taxes and duties to States, all
revenues received by the Government of India, all loans raised by that Government by the issue
of treasury bills, loans or ways and means advances and all moneys received by that Government
in repayment of loans shall form one Consolidated Fund to be entitled “the Consolidated Fund of
India”, and all revenues received by the Government of a State, all loans raised by that
Government by the issue of treasury bills, loans or ways and means advances and all moneys
received by that Government in repayment of loans shall form one consolidated fund to be
entitled “the Consolidated Fund of the State” [Article 266(1)].
All other public money received by or on behalf of the Government of India or the Government
of a State shall be credited to the Public Account of India or the Public Account of the State, as
the case may be (Article 266(2)).

No money out of the Consolidated Fund of India or the Consolidated Fund of a State shall be
appropriated except in accordance with law and for the purposes and in the manner provided in
this Constitution [Article 266(3)].

Contingency Fund:

Parliament may by law establish a Contingency Fund in the nature of an impress to be entitled
“the Contingency Fund of India” into which shall be paid, from time to time, such sums as may
be determined by such law, and the said Fund shall be placed at the disposal of the President to
enable advances to be made by him out of such Fund for the purposes of meeting unforeseen
expenditure pending authorisation of such expenditure by Parliament by law under Article 115 or
Article 116 [Article 267(1)].

The Legislature of a State may by law establish a Contingency Fund in the nature of an impress
to be entitled “the Contingency Fund of the State” into which shall be paid from time to time
such sums as may be determined by such law, and the said Fund shall be placed at the disposal of
the Governor of the State to enable advances to be made by him out of such Fund for the
purposes of meeting unforeseen expenditure pending authorisation of such expenditure by the
Legislature of the State by law under Article 205 or Article 206 [Article 267(2)].

Finance Commission:

Arts. 270, 273, 275 and 280 provide for the Constitution of a Finance Commission (at stated
intervals) to recommend to the President certain measures relating to the distribution of financial
resources between the Union and the States, for instance, percentage of the net proceeds of
income- tax which should be assigned by the Union to the States and the manner in which the
share to be assigned shall be distributed among to the States [Art. 280].

The Constitution of the Finance Commission is laid down in Art. 280, which has to be read with
the Finance Commission (Miscellaneous Provisions) Act of 1951, which has supplemented the
provisions of the Constitution. Briefly speaking, the Commission has to be reconstituted by the
President, every five years.

The Chairman must be a person having ‘experience in public affairs’, and the other four
members must be appointed from amongst the following

a) A High Court Judge or one qualified to be appointed as such;

(b) a person having special knowledge of the finances and accounts of the Government;

(c) a person having wide experience in financial matters, and administration;

(d) a person having special knowledge of economics,

(e) a person familiar with treasures needed to augment the consolidated fund of a State to
supplement the resources of the Panchayat, in the State.

It shall be the duty of the Commission to make recommendations to the President as to:

(a) the distribution between the Union and the States of the net proceeds of taxes which are to be
or may be, divided between them under this Chapter and the allocation between the States of the
respective shares of such proceeds; (b) the principles which should govern the grants-in-aid of
revenues of the States out of the Consolidated Fund of India; (c) any other matter referred to the
Commission by the President in the interests of sound finance.

The First Finance Commission was constituted in 1951, with Sri Neogy as the Chairman and it
submitted its report in 1953.

Some Details of Distribution:

(i) Taxes which are exclusively central, and the revenues which are wholly appropriated for the
use of the Central Government form one group. These include export duties, corporation tax,
taxes on the capital value of the assets, exclusive of agricultural land of individuals and
companies, (ii) Income tax constituting a separate category in as much as while it is the Centre
which levies, fixes rates and collects the tax, it has to share the proceeds with the States as
prescribed by the President on the basis of the recommendations made by the Finance Commis-
sion. (iii) Union duties of excise other than duties which have been given to States, which may
be shared if Parliament has so decided.

The Constitution has left it to the discretion of Parliament to decide by law whether any of the
union duties of excise should be shared with the States, how these are to be shared, and how the
shares are to be distributed to the States, (iv) Taxes which are to be levied and collected by the
Centre, but to be distributed entirely (except for those proceeds which are attributable to the
Union territories) to the States in accordance with such principles of distribution as may be laid
down by Parliament by law.

These taxes consist of succession and estate duties; terminal taxes on passengers and goods
carried by rail, sea or air taxes on railway fares and freights; taxes on the sale or purchase of
newspapers; sale or purchase taxes on inter-State trade, (v) Taxes levied by the Centre but
collected by the States and appropriated by them for their own use.

They are stamp duties and excise duties on medicinal and toilet preparations containing alcohol;
in connection with these two taxes, the Centre only levies the tax, and fixes the rate of duty to be
paid on the alcohol contained in the medical and toilet preparations, but each State collects the
tax and appropriates it for its own purpose.
Grants and Loans:

Besides the devolution of revenues the Union meets the financial needs of the State in two other
ways: (i) by making grants-in-aid of State revenues and other grants, and (ii) by giving loans.
According to the Constitution, both the Union and the States are empowered to make grants.

But by virtue of the sums at its disposal, the Union’s power is greater. The Union can make
grants for purposes outside its legislative jurisdiction, and it is under this provision that many of
the large capital grants for national development schemes are made.

Grant-in-aid may be made to a State to defray its budgetary deficits, or it may make grant-in-aid
on the basis of budgetary need, and to aid States whose revenues, even after devolution fall short
of their expenditures.

Efforts are generally made to keep these grants-in-aid to a minimum by making devolution
adequate. Other grants are generally unconditional, but in certain cases, as in Assam, grants have
been made for the development of backward areas and tribes.

Besides grants-in-aid, States also sometimes depend heavily on the Union for loans. The Union
government has unlimited power to borrow either within India or outside, and may exercise this
power subject only to such limits as might be fixed by Parliament from time to time.

In the case of the States, however, their borrowing power is subject to a number of Constitutional
limitations. A State cannot borrow outside India. The State executive has the power to borrow
within the territory of India, subject to many conditions.

Borrowing Powers:

The Union has unlimited power of borrowing, upon the security of the revenues of India either
within India or outside. The Union Executive can exercise the power; subject only to such limits
as may be fixed by Parliament from time to time.

The borrowing power of a State is, however, subject to a number of Constitutional

limitations:

(i) It cannot borrow outside India, (ii) The State Executive shall have the power to borrow,
within the territory of India upon the security of the revenues of the State, subject to the
following conditions: (a) limitation as may be imposed by the State Legislature; (b) if the Union
has guaranteed an outstanding loan of the State, no fresh loan can be raised by the State without
consent of the Union Government; (c) The Government of India may itself offer a loan to a State,
under a law made by Parliament; so long as such a loan or any part thereof remains outstanding,
no fresh loan can be raised by the State without the consent of-the Government.

Distribution of Taxes between Union and the States:

The distribution of the tax-revenue between the Union and the States, according to the foregoing
principles, stands as follows:

1. Taxes Belonging to the Union Exclusively:

(i) Customs, (ii) Corporation tax. (iii) Taxes on capital value of assets of individuals and
Companies, (iv) Surcharge on income tax, etc. (v) Fees in respect of matters in the Union List
(List I).

2. Taxes belonging to the States Exclusively:

(i) Land Revenue, (ii) Stamp duty except in documents included in the Union List, (iii)
Succession duty, estate duty, and Income tax on agricultural land, (iv) Taxes on passengers and
goods carried on inland waterways, (v) Taxes on lands and buildings, mineral rights, (vi) Taxes
on animals and boats, on road vehicles, on advertisements, on consumption of electricity, on
luxuries and amusements, etc. (vii) Taxes on entry of goods into local areas, (viii) Sales Tax. (ix)
Tolls, (x) Fees in respect of matters in the State List, (xi) Taxes on professions, trades, etc., not
exceeding Rs. 2,500 per annum (List II).

3. Duties Levied by the Union but Collected and Appropriated by the States:

Stamp duties on bills of Exchange, etc., and Excise duties on medicinal and toilet preparations
containing alcohol, though they are included in the Union List and levied by the Union, shall be
collected by the States insofar as leviable within their respective territories, and shall form part of
the States by whom they are collected (Article 268).

4. Taxes Levied as well as Collected by the Union, but Assigned to the States within which
they are Leviable:

(i) Duties on succession to property other than agricultural land, (ii) Estate duty in respect of
property other than agricultural land, (iii) Terminal taxes on goods or passengers carried by
railway, air or sea. (iv) Taxes on railway fares and freights, (v) Taxes on stock exchange other
than stamp duties, (vi) Taxes on sales of and advertisements in newspapers, (vii) Taxes on the
sale or purchase of goods other than newspapers, where such sale or purchase takes place in the
course of Inter-State trade or commerce, (viii) Taxes on Inter-State consignment of goods
(Article 269).

5. Taxes Levied and Collected by the Union and Distributed between Union and the States:

Certain taxes shall be levied as well as collected by the Union, but their proceeds shall be
divided between the Union and the States in a certain proportion, in order to effect an
equitable division of the financial resources. These are:

(i) Taxes on income other than on agricultural income (Article 270).

(ii) Duties of excise as are included in the Union List, excepting medicinal and toilet preparations
may also be distributed, if Parliament by law so provides (Article 272).

Distribution of Non-Tax Revenue:

The principal sources of non-tax revenues of the Union are the receipts from:

Railways; Posts and Telegraphs; Broadcasting; Opium; Currency and Mint; Industrial
and Commercial Undertakings of the Central Government relating to the subjects over which the
Union has jurisdiction.

Of the Industrial and Commercial Undertakings relating to Central subjects may be mentioned.
The Industrial Finance Corporation; Air India; Indian Airlines.

Industries in which the Government of India have made investments; such as the Steel Authority
of India; the Hindustan Shipyard Ltd; the Indian Telephone Industries Ltd.

The States, similarly, have their receipts from: Forests, Irrigation and Commercial Enterprises
(like Electricity, Road Transport) and Industrial Undertakings (such as Soap, Sandalwood, Iron
and Steel in Karnataka, Paper in Madhya Pradesh, Milk Supply in Mumbai, Deep-sea Fishing
and Silk in West Bengal).

Role of the Planning Commissions:

The institution which is sometimes held responsible for giving the maximum strength to the
forces of centralisation in the country and yet has continued to remain an extra-statutory and
extra-constitutional body is the Planning Commission.

A Planning Commission was set up under Nehru’s Chairmanship by the Indian National
Congress more than ten years before the country became independent to draw up a national plan.
It had produced some voluminous reports.

A Planning and Development Department was set up and a Development Board was organised
by the British Government during the Second World War but these were, comparatively, minor
efforts. One might, therefore, say that real planning began with the setting up of the Planning
Commission in 1950.

No attempt was, however, made to take resort to legislation or to an amendment of the

Constitution. It was set up by a simple resolution of the Union Cabinet put forward by Prime
Minister Nehru with himself as its Chairman, to formulate an integrated five-year plan for the
economic and social development of the country and to act as an advisory board to the Union
Government in this sphere.

But, even though the Planning Commission was set up without legislation or constitutional
amendment, it has been growing in strength from year to year. Consisting of the Prime Minister,
some important Cabinet Ministers of the Union and some non-officials, it has grown over the
years as a heavy bureaucratic organisation.

The function of the Planning Commission, in theory, is to prepare a plan for the most effective
and balanced utilisation of the country’s resources, with a view to initiate “a process of
development which will raise living standards and open out to the people new opportunities for a
richer and more varied life”. Its function, in other words, is to formulate a plan.

Development being related mostly to State subjects, the implementation of the plan rests with the
States. The role that the Commission plays with regard to the States is merely advisory. Once the
advice has been tendered by the Planning Commission, it has no direct means of securing the
implementation of the plan. The practice, however, is different.

The States have to depend on the Centre for financial assistance without which the plans cannot
be implemented. Since the States cannot implement the plans without financial assistance from-
the Centre, and the Union would like different States to follow a more or less uniform policy the
Centre comes to exercise an immense control over the implementation part of the plans in the
States.

National Development Council (NDC):

Constituted as the another part of the Planning Commission, it works in close cooperation with
the Government of India. In order to promote coordination with the States, a National
Development Council, consisting of all the Cabinet Ministers of the Government of India, the
Members of the Planning Commission and the Chief Ministers of all the States, was set up.
Having no statutory or constitutional basis, the National Development Council is an ad hoc
improvised body, but, thanks to a convention, its decisions are regarded as binding on the Centre
as well as on the State government.

It is interesting to note that there is no body analogous to the Planning Commission at the State
level, though generally there are Planning Departments and sometimes Development
Commissioners in the States. All planning is done at the Union level and it is the responsibility
of the States to implement the plans.

Part XI Articles 245-293: A Combination of Conflicts and Cooperation:

The relationship between the Centre and the States covers a wide range and embraces a very
large part of the functions and activities in the administrative, social and economic spheres. Since
1950, many events have occurred which have a direct or indirect bearing on the Centre-State
relations.

For instance, the Planning Commission was set up by a resolution of the Government of India in
March, 1950 with the object of accelerating the economic growth of the country and to meet the
social urge for the extension of social services.
Though not a creation of the Constitution, not even endowed with a statutory sanction, the
Planning Commission assumed the role of the architect of India’s destiny. There were
widespread complaints and it was contended that Five-Year Plans had reduced the federal
structure to almost a unitary system.

The reorganisation of the States in 1956 and thereafter, especially with the emergence of non-
Congress Governments in some States after the 1967 gave the issue of Centre-State relations a
new dimension and importance.

Grievance of States in General against the Centre:

(i) The States regard as inadequate the resources placed at their disposal and demand transfer of
more financial resources. The tight control exercised by the Centre over the financial institutions
of India restricts the action of States.

The States have, consequently, to look to the Centre for funds in case of unforeseen calamities or
to carry out various schemes. They do not see eye to eye with the Centre on the issue of overdraft
facilities and debt and repayment liabilities of State governments.

(ii) The Centre has the prerogative to decide finally the location of various industries and
projects. Undue delays in clearance of projects have adversely affected the interests of the States.

(iii) The States resent the Centre’s encroachment into their sphere, evidence in the transfer of
subjects from the State List to the Concurrent List. It may be noted that even the Congress-ruled
States have objected to this. Nor do the States like the persistence of the Centre in the matter of
getting sales tax abolished.

(iv) The States disapprove of the Centre’s practice of unilaterally increasing the wages and
salaries of its staff, as this creates problems for the State governments vis-a-vis their own staff.
The administered prices are controlled by the Centre, and arbitrary and drastic increase in the
prices upset State budgets.

(v) Resentment is also caused because of conflicting interests in location of new and important
projects and industries.

Grievances of ‘Opposition-Ruled’ States against the Centre:

Besides the general grievances stated above, there are some specially felt by the States ruled by
parties different from that of ruling at the Centre.

(i) They are critical of the role of the Governors; the manner of their appointment, transfers and
dismissals. They feel that party considerations outweigh constitutional conventions in the matter
Of Governors’ appointment. They see the Governor as the Centre’s agent.
(ii) They resent the frequent (and sometimes arbitrary) imposition of President’s Rule and
dismissal of State governments. This is seen as unwarranted and unconstitutional action on the
Centre’s part.

(iii) The State governments resent deployment of paramilitary forces such as CRPF, RPF,
Central Industrial Security Force, etc. in the States without requisition from the States.

(iv) The States allege that the Centre shows little respect for the views expressed by State Chief
Ministers or Ministers at conferences convened by the Centre. The Centre is alleged to expect
unquestioned submission by the State governments like the appointment of Commission of in-
quiry by the Centre against the governments and ministries, invariably, of those States ruled by
parties other than that at the Centre.

Centre’s Grievances against States:

The Centre, for its part, feels displeased at the attitude of the States over various issues. Its aim is
to achieve equitable development of the country. It feels perturbed at the objections of the more
advanced States over its special concessions and measures to develop the backward areas.

The Centre also alleges that State governments tend to divert funds allocated for a particular
scheme to other purpose. The Centre also resents the States’ claiming credit for the successful
implementation of Centrally-sponsored projects.

Reforming Centre-State Relations:

Some of the major recommendations made by different committees and teams are as under:

1. The Setalvad Study Team:

The Setalvad Study Team had recommended the Constitution of an inter- State Council
composed of the Prime Minister and other central ministers holding key portfolios, Chief
Ministers and others, invited or co-opted. It suggested measures to rationalize the relationship
between the Finance Commission and the Planning Commission.

Besides, it recommended that the office of Governor be filled by a person having ability,
objectivity and independence and the incumbent must regard himself as a creation of the
Constitution and not as an errand boy of the Central Government

2. The Administrative Reforms Commission:

The Administrative Reforms Commission noticed that the Central Government had even moved
into the fields earmarked for the States under the Constitution and asked it to withdraw from
such areas.
It recommended the setting up of an inter-State Council but made a novel suggestion about its
composition. Instead of giving seats in this body to all the Chief Ministers, it wanted to have five
representatives one each from the five zonal councils.

Much more importantly, the ARC highlighted the need for formulation of guidelines for
governors in the exercise of their discretionary powers. This would ensure uniformity of action
and eliminate all suspicions of partnership or arbitrariness.

The question whether a Chief Minister enjoys majority support or not should be tested on the
floor of the Legislature and for this he should summon the Assembly whenever a doubt arises.

It also opined that when a ministry suffers a defeat in the Legislative Assembly on major policy
issues and the outgoing chief minister advises the governor to dissolve the Assembly with a view
to obtaining the verdict of the electorate, the governor should normally accept the advice.

3. Rajamannar Committee Report:

The DMK government of Tamil Nadu appointed a Commission with a direction to suggest
changes in the existing level of Union-State relations. Their terms of reference were to examine
the entire question regarding the relationship that should exist between the Centre and the States
in a federal set-up and to suggest amendments to the Constitution so as to “secure utmost
autonomy to the States.”

The Committee headed by P.V. Rajamannar, a retired Chief Justice of Madras High
Court, presented its report on May 27, 1971. Some of the important recommendations of
the Committee were:

(i) The Committee recommended the transfer of several subjects from the Union and Concurrent
Lists to the State List. It recommended that the ‘residuary power of legislation and taxation’
should be vested in the State Legislatures.

(ii) An Inter-State Council comprising Chief Ministers of all the States or their nominees with
the Prime Minister as its Chairman should be set up immediately.

(iii) The Committee recommended the abolition of the existing Planning Commission and that its
place must be taken by a statutory body, consisting of scientific, technical, agricultural and
economic experts, to advise the States which should have their own Planning Boards.

(iv) The Committee advocated deletion of those articles of the Constitution empowering the
Centre to issue directives to the States and to take over the administration in a State. The
Committee was also opposed to the emergency powers of the Central Government and
recommended the deletion of Articles 356, 357 and 360.

(v) The Committee recommended that every State should have equal representation in the Rajya
Sabha, irrespective of population.
(vi) The Governor should be appointed by the President in consultation with the State Cabinet or
some other high power body that might be set up for the purpose and once a person had held this
office, he should not be appointed to any other office under the Government.

(vii) On recruitment to the services, the Committee recommended that Article 312 should be so
amended as to omit the provision of the creation of any new All-India cadre in future.

(viii) The High Courts of States should be the highest courts for all matters falling within the
jurisdiction of States.

(ix) The Committee said that ‘territorial integrity’ of a State should not be interfered with in any
manner except with the consent of the State concerned.

(x) It recommended that the States should also get a share of the tax revenues from corporation
tax, customs and export duties and tax on the capital value of assets and also excise duties.

4. Sarkaria Commission Report:

In view of the various problems which impeded the growth of healthy relations between the
Centre and the States, the Central Government set up a Commission in June 1983, under the
Chairmanship of Justice R.S. Sarkaria mainly to suggest reforms for an equitable distribution of
powers between the Union and the States. The Commission submitted its report in 1988.

Major Recommendations:

(i) Though the general recommendations tilt towards the Centre – advocating the unity and
integrity of the nation, the Commission suggested that Article 258 (e.g. the Centre’s right to
confer authority to the States in certain matters) should be used liberally.

(ii) Minimal use of Article 356 should be made and all the possibilities of formation of an
alternative government must be explored before imposing President’s Rule in the State. The
State Assembly should not be dissolved unless the proclamation is approved by the Parliament.

(iii) It favoured the formation of an Inter-Government Council consisting of the Prime Minister
and the Chief Ministers of States to decide collectively on various issues that cause friction be-
tween the Centre and the States.

(iv) It rejected the demand for the abolition of the office of Governor as well as his selection
from a panel of names given by the State Governments. However, it suggested that active
politicians should not be appointed Governors.

When the State and the Centre are ruled by different political parties, the Governor should not
belong to the ruling party at the Centre. Moreover, the retiring Governors should be debarred
from accepting any office of profit.
(v) It did not favour disbanding of All India Services in the interest of the country’s integrity.
Instead, it favoured addition of new All India Services.

(vi) The three-language formula should be implemented in its true spirit in all the States in the
interest of unity and integrity of the country.

(vii) It made a strong plea for Inter-State Councils.

(viii) The Judges of the High Courts should not be transferred without their consent.

(ix) It did not favour any drastic changes in the basic scheme of division of taxes, but favoured
the sharing of corporation tax and ‘every of consignment tax.

(x) It found the present division of functions between the Finance Commission and the Planning
Commission as reasonable and favoured the continuance of the existing arrangement.

Bargaining Federalism: Emerging Trends:

The end of one party rule in the Centre after the debacle of the Congress in 1996 has seen five
national elections and governments in 1989, 1991, 1996, 1998 and 1999. In between 1996-97 the
Central Government was run by the United Front made up of regional parties.

The regional leaders like Chandrababu Naidu, Karunanidhi, Mulayam Singh Yadav, G.K.
Moopnar, Prafulla Kumar Mohanta emerged as the Prime Minister maker at the centre. With 24
allies, some of them volatile, Vajpayee has managed to run the coalition government
successfully, because of bargaining.

The government’s stability depended on its bargaining capacity coping with the diverse demands
put up by the allies. The new emerging trend that is seen is that the regional parties forming the
government in various provinces and they start the process of political bargaining with the
coalition government at the centre.

This bargaining for sharing power at the Centre, apparently for the fulfillment of regional aspira-
tions, was evident in the formation of the government after 1998, and 1999 elections.

Whether it was Mamta Banerjee wanting a Bengal Package, Telegu Desam Party wanting
Central grants or the Lok Sabha speakership, or Miss Jayalalitha demanding waters from the
Cauvery or Samata Party setting up a New Railway Zone in Bihar—all have tried to extract the
maximum share of the spoils and to seek solutions of the problems in their respective states.
Class –LL.B (HONS.) II SEM. Subject – Constitution Law-II

capacities under the Union or a State

312 All-India Services
312A Power of Parliament to vary or revoke conditions of service of officers of
certain services
313 Transitional provisions
314 Repealed
CHAPTER II PUBLIC SERVICE COMMISSION

315 Public Service Commissions for the Union and for the States
316 Appointment and term of office of members
317 Removal and suspension of a member of a Public Service Commission
318 Power to make regulations as to conditions of service of members and staff of
the Commission
319 Prohibition as to the holding of offices by members of Commission on ceasing
to be such members
320 Functions of Public Service Commissions
321 Power to extend functions of Public Service Commissions
322 Expenses of Public Service Commission
323 Reports of Public Service Commissions

The State Liability 299-300

Leading case
Steam navigation co. v Secretary of State for India
Kasturi Lal v State of UP
UOI v. Sugrabai
N.Nagendra Rao & Co. State of AP
Rudal Shah v. Bihar
Nilbati Behra V. State of Orissa

The Liability of State in Contracts – Art. 299

Amendments Article narrates about The Liability of State in Contracts
299. Contracts.—(1) All contracts made in the exercise of the executive power of the Union or of a
State shall be expressed to be made by the President, or by the Governor of the State, as the case may
be, and all such contracts and all assurances of property made in the exercise of that power shall be
executed on behalf of the President or the Governor by such persons and in such manner as he may
direct or authorize.

(2) Neither the President nor the Governor shall be personally liable in respect of
any contract or assurance made or executed for the purposes of this Constitution, or for the purposes
of any enactment relating to the Government of India heretofore in force, nor shall any person making
or executing any such contract or assurance on behalf of any of them be personally liable in respect
thereof.

Essentials of Amendments Article 299

All contracts made in the exercise of the executive power of the Union or of a State shall be expressed
to be made by the President or by the Governor of the State, as the case may be.
All such contracts and all assurances of property made in the exercise of that power shall be executed
on behalf of the President or the Governor by such persons and in such manner as he may direct or
authorize.

37
Class –LL.B (HONS.) II SEM. Subject – Constitution Law-II

No liability of the President or Governor: Neither the President nor the Governor shall be personally
liable in respect of any contract or assurance made or executed for the purposes of this Constitution,
or for the purposes of any enactment relating to the Government of India heretofore in force, nor shall
any person making or executing any such contract or assurance on behalf of any of them be personally
liable in respect thereof.

Amendments Article 299 is mandatory

If the requirements of Amendments Article 299 are not complied with, the officer executing the
contract would be personally liable.
Quantum merit or quantum valebat (service or goods received): If the Government enjoys the benefit
of performance by the other party to the contract, shall be bound to give recompense on the principles
of Quantum merit or quantum valebat. The principles as laid down in Sections 65 to 70 (Quasi-
contracts) of the Indian Contract Act, 1872 shall also apply in the Government Contracts also.
Depending upon the facts and circumstances, the Doctrine of Estoppels may also apply in the
Government Contracts under Amendments Article 299.
State of West Bengal v B.K. Mondal & Sons
Union of India v Rallia Ram
The Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v Sipani Singh and others

Promissory Estoppels
The Doctrine of Promissory Estoppels has been variously called Promissory Estoppels , Requisite
Estoppels , and Quasi-Estoppels

Services Under Union & State Article (308-323)

The idea of establishing a Public Service Commission for the recruitment of Public Services in the
country was first formulated in the memorandum presented by the Government of India in 1919 to
the Committee on the division of functions. It is provided that there shall be established in India a
Public Service Commission which shall discharge in regard to the recruitment and control of the
public services in India., such other functions as may be assigned thereto by rules made by the
secretary of State in council The Government of India considered this question and forwarded its
recommendations to the Provincial Governments of their views. It also said that competitive
examinations were going to be introduced; it must be subject to the following conditions.

First the candidates must be graduates; there should be a preliminary selection of candidates by a
Committee to be constituted for the purpose; the Provincial Governments should decide upon the
recommendations of the Committee; there should be some age limit. In 1924, the Royal Commission
on public Services (Lee Commission) laid stress on the necessity for constituting without delay a
Public Service Commission under the Government of India Act, 1919. They proposed to assign to the
Commission four distinct functions; First, the recruitment of personnel for public services; Second, the
establishment and the maintenance of proper standards of qualifications for admission to the services;
Third, quasi-judicial functions relating to disciplinary control and protection of services and finally,
advisory functions in regard to the general service problems.

The Government of India Act, 1935 accordingly provided in section that, there shall be a Public
Service

Commission for the Federation and a Public Service Commission for each Province. After India
attained her Independence in 1947 and proceeded to frame a Constitution according to her own
ideals, the Constituent Assembly, entrusted with this

38
Class –LL.B (HONS.) II SEM. Subject – Constitution Law-II

Right to property

Pre 1978 Amendment ACT Article 19(1)(f)

Post 1978 Amendment Act Articles 31(a), 31(a), 31(a), 300 A

The Indian Constitution does not recognize property right as a fundamental right. In the year 1977, the
44th amendment eliminated the right to acquire, hold and dispose of property as a fundamental
right. However, in another part of the Constitution, Article 300 (A) was inserted to affirm that no
person shall be deprived of his property save by authority of law. The result is that the right to
property as a fundamental right is now substituted as a statutory right. The amendment expanded the
power of the state to appropriate property for social welfare purposes. In other words, the
amendment bestowed upon the Indian socialist state a license to indulge in what Fredric Bastiat
termed legal plunder. This is one of the classic examples when the law has been perverted in order to
make plunder look just and sacred to many consciences.

Indian experiences and conception of property and wealth have a very different historical basis than
that of western countries. The fact the present system of property as we know arises out of the
peculiar developments in Europe in the 17th to 18thcentury and therefore its experiences were
universally not applicable. A still more economic area in which the answer is both difficult and
important is the definition of property rights. The notion of property as it has developed over
centuries and it has embodies in our legal codes, has become so much a part of us that we tend to take
it for granted, and fail to recognize the extent to which just what constitutes property and what rights
the ownership of property confers are complex social creations rather than self evident
propositions. This also seems to be the hidden reason why the right to property is suddenly much
contested throughout India today and why the state is coming up unexpectedly against huge
resistance from unexpected quarters in attempting to acquire land in India. The action of the state to
assert the Eminent Domain over subsidiary claims on property and the clash which resulted there
from Singur, Nandigram and other parts of India is precisely a manifestation of a clash of cultures. To
put in Samuel Huntingtons words, the ideas of the west of development and liberalization propagated
by the present ruling elite and the old Indic ideas which shape the views of the majority of the people.
Whereas the new A.300 A imposes only one limitation on this power (i.e.,) Authority of Law

MAXIMS
The doctrine is based on the following two Latin maxims

i. Salus Populi est Suprema Lex Welfare Of The People Of The Public Is The
Paramount Law;

ii. Necessita Public Major est Quam Public Necessity Is Greater Than Private
Necessity. Also right to property against the state.

However, when the state realized that an absolute property and the aspirations of the people were not
the same the legislature was subsequently forced to make the said right to property subject to social
welfare amid amendments to the Constitution. Articles 31-A, 31-B and 31-C are the indicators of the
change and the counter pressure of the state when it realized the inherent problems in granting a clear
western style absolute fundamental right to property (even though it was balanced by reasonable

43
Class –LL.B (HONS.) II SEM. Subject – Constitution Law-II

restrictions in the interest of the public), specially Article 31-C, which for the first time brought out the
social nature of property. It is another matter that the said provisions were misused, and what we are
discussing today, but the abuse of the socialist state in India is not the scope of the present article and
the articles are considered on their face value only. Supreme Court Approach to the Right to Property
The Supreme Courts approach to the right to property can be divided into two phases:-

THE TIME TILL THE RIGHT

TO PROPERTY WAS A THE TIME AFTER
FUNDAMENTAL RIGHT (PRE THE CONVERSION OF
1978) RIGHT TO PROPERTY
AS A
CONSTITUTIONAL
RIGHT (POST 1978)

Pre 1978 The Fundamental Right to Property

The Ninth Schedule was inserted in the Constitution by the Constitution (First Amendment) Act, 1951
along with two new Articles 31 A & 31 B so as to make laws acquiring zamindaris unchallengeable in
the courts. Thirteen State Acts named in this schedule were put beyond any challenge in courts for
contravention of fundamental rights. These steps were felt necessary to carry out land reforms in
accordance with the economic philosophy of the state to distribute the land among the land workers,
after taking away such land from the land lords.

By the Fourth Amendment Act, 1955, Art 31 relating to right to property was amended in several
respects. The purpose of these amendments related to the power of the state o compulsory acquisition
and requisitioning of private property. The amount of compensation payable for this purpose was
made unjustifiable to overcome the effect of the Supreme Court judgment in the decision of State of
West Bengal v. Bella Banerjee. By the Constitution (Seventeenth Amendment) Act, 1964, article 31 A
was amended with respect to meaning of expression estate and the Ninth Schedule was amended by
including therein certain state enactments.

During this period the Supreme Court was generally of the view that land reforms need to be upheld
even if they did strictly clash against the right to property, though the Supreme Court was itself
skeptical about the way the government went about exercising its administrative power in this regard.
The Supreme Court was insistent that the administrative discretion to appropriate or infringe
property rights should be in accordance with law and cannot be by mere fact. The court however
really clashed with the socialist executive during the period of nationalization, when the court

44
Class –LL.B (HONS.) II SEM. Subject – Constitution Law-II

admirably stood up for the right to property in however a limited manner against the over reaches of
the socialist state

In this juncture the court in this Bank Nationalization case has clearly pointed out the following two
points:
 The Constitution guarantees the right to compensation which is equivalent in
money to the value of the property has been compulsorily acquired. This is the
basic guarantee. The law must therefore provide compensation and for
determining compensation relevant principles must be specified: if the principles
are not relevant the ultimate value determined is not compensation.
 The Constitution guarantees that the expropriate owner must be given the value of
his property (the reasonable compensation for the loss of the property). That
reasonable compensation must not be illusionary and not reached by the
application of an undertaking as a unit after awarding compensation for some
items which go to make up the undertaking and omitting important items amounts
to adopting an irrelevant principle in the determination of the value of the
undertaking and does not furnish compensation to the expropriated owner.

Post 1978 The Constitutional Right to Property

It was at this period the Supreme Court had gone out of its way to hold against the right to property
and the right to accumulate wealth and also held that with regard to Article 39, the distribution of
material resources to better serve the common good and the restriction on the concentration of
wealth. The court however is also responsible in toning down the excesses on the right to property
and wealth by the socialist state. During the period of Liberalization, the Supreme Court has attempted
to get back to reinterpret the provisions which give protection to the right to property so as to make
the protection real and not illusory and dilute the claim of distribution of wealth. However, this has
been an incremental approach and much more needs to be done to shift the balance back to the
original in the Constitution. This means that the acquisition of property is not merely temporal but to
be accepted as valid it must conform to spiritual guidelines as well as the Indian conceptions recognize
quite clearly that though property can be enjoyed which has not been acquired strictly in terms of the
law, it cannot be called real property of the person concerned. Property therefore is not merely an
individual right but a construction and part of social and spiritual order. The basis of conception of
property in the societies of India is not a rigid and clear demarcation of claims belonging to an
individual but is a sum total of societal and individual claims all of which need not be based on clear
individual legal demarcation.

44th Amendment to the Constitution & the present scenario

The outburst against the Right to Property as a Fundamental Right in Articles 19 (1) (f) and 31 started
immediately after the enforcement of the Constitution in 1950. Land reforms, zamindari abolition
laws, disputes relating to compensation, several rounds of Constitutional amendments, litigations and
adjudications ultimately culminated first in the insertion of the word socialist in the Preamble by the
42nd Amendment in 1977 and later in the omission of the Right to Property as a FR and its
reincarnation as a bare Constitutional right in Article 300-A by the 44th Amendment in 1978.
Today, the times have changed radically. India is no more seen through the eyes of only political
leaders with a socialist bias. It is India Shining seen through the corporate lenses of financial giants
like the Tatas, Ambanis and Mahindras, with an unfathomable zeal for capitalism, money and markets.
There is another angle. There is a scramble by industrialists and developers for land all over the
country for establishment of Special Economic Zones. Violent protests by poor agriculturists have
taken place to defend their meager land-holdings against compulsory acquisition by the State. In
particular, the riots and killings in Singur, Nandigram etc. in a State (of West Bengal) ruled by

45
Class –LL.B (HONS.) II SEM. Subject – Constitution Law-II

communists has turned the wheel full circle. Socialism has become a bad word and the Right to
Property has become a necessity to assure and assuage the feelings of the poor more than those of the
rich. Soon after the abolition of the Fundamental Right to property, in Bhim Singh v. UOI, the Supreme
Court realised the worth of the Right to Property as a Fundamental Right. In the absence of this
Fundamental Right to property, it took recourse to the other Fundamental Right of Equality which is
absolutely the concept of Reasonableness under Article 14 for invalidating certain aspects of the urban
land ceiling legislation. Today, the need is felt to restore the right to property as a Fundamental Right
for protecting at least the elementary and basic proprietary rights of the poor Indian citizens against
compulsory land acquisition. Very recently, the Supreme Court, while disapproving the age-old
Doctrine of Adverse Possession, as against the rights of the real owner, observed that The right to
property is now considered to be not only a Constitutional right or statutory right but also a human
right. Thus, the trend is unmistakable. By 2050, if the Constitution of India is to be credited with a
sense of sensibility and flexibility in keeping with the times, the bad word socialist inserted in the
Preamble in 1977 shall stand omitted and the Right to Property shall stand resurrected to its original
position as a Fundamental Right.

Judiciary over 300-A

Constitutionality of A. 31A
In Ambika Mishra v State of UP , the Supreme Court upheld the Constitutionality of clause (a)
of Article 31A (1) on the test of basic structure. In Minerva Mills v Union of India , the Court held that
the whole of Art. 31A is unassailable on the basis of stare decisis, a quietus that should not allowed to
be disturbed.In Waman Rao and I R Coelho case, the First Amendment in which the Art. 31A was
introduced and Fourth Amendment which substituted new clauses to this Article has been held
Constitutional. Therefore relying on the judgments of Minerva Mills, Waman Rao and Coelho
case Article 31A can be stated as constitutionally valid.

Emergence of Article 31 B: Validation of certain Laws

Art.31A was added to the Constitution by the Constitution (First Amendment) Act, 1951. It was added
as a Constitutional device to protect the specified statutes from any attack on the ground that they
infringe Part III of the Constitution . It has retrospective effect which is clear from the words ever to
have become void . The introduction of this provision has cure the defects in various acts of the Ninth
schedule as regards to the unconstitutionality alleged on the grounds of infringement of Part III of
the Constitution, these acts even if void or inoperative at the time, they were inactive by reason of
infringement of Article 13(2) of the Constitution assumes full force from the respective dates of their
enactment after their inclusion in the Ninth schedule read with Article 31B of the Constitution. The
Ninth schedule consists of 284 legislations until the Constitution (78th amendment) act, 1995 but
article 31B did not empower the legislatures to amend these acts inconsistently with the provisions of
the Constitution or to take away the rights conferred by the Constitution. The amendments must be
consistent with the provision of the Constitution or be saved under Article 31A of the Constitution, if
not they must be held void. A question was raised in Prag Ice And Oil Mills v. Union Of India whether
article 31B saved the orders and notifications issued under Section 3 of the Essential Commodities Act
1955 which was already included in the Ninth schedule but as was already decided in Godavari Sugar
Mills Ltd. v. S.B Kamble that the amendments to ac act subsequent to an inclusion of an act in the Ninth
schedule were not entitled to the protection of Article 31B. The Supreme Court dismissed the petition
as the act did not violate the petitioner s rights under Article 14 and 19, it was explained by the court
that when a particular act or regulation is placed in the Ninth schedule, the parliament may be
assumed to have applied its mind to the provisions of the particular act and the desirability, propriety
or necessity of placing it in the Ninth schedule and such an assumption cannot in the very nature of
things be made in the case of an order issued under an Act or Regulation placed in the Ninth schedule.

46
Class –LL.B (HONS.) II SEM. Subject – Constitution Law-II

Constitutional Validity of Article 31B

In Waman Rao v. Union of India , the court held that amendments in the Ninth schedule made before
the decision of Keshavananda Bharti v. State of Kerala that is before 24.04.1973 were beyond
challenge but the amendments made afterwards could be tested on the grounds of amendment of
basic structure. Similar views were given by the court in Minerva Mills v. Union of India and Bhim
Singhji v. Union of India . In I.R. Coelho v. State of Tamil Nadu the nine judge bench of the Supreme
Court unanimously decided that as held in Keshavananda Bharti case and later clarified in Waman Rao
case while the laws included in the Ninth schedule before the decision in Keshavananda Bharti case
are immune from any challenge on the grounds of violation of fundamental rights or basic structure
and the Acts included after the decision shall be open to challenge. The Court reaffirmed
that Article 31B did not destroy or damage the basic structure of the Constitution.

Emergence of Article 31 C
Insertion of Article 31-C by the Twenty-Fifth Amendment Article 31-C Notwithstanding anything
contained in Article 13, no law giving effect to the policy of the state towards securing [all or any of the
principles laid down in Part IV] shall be deemed to be void on the ground that it is inconsistent with, or
takes away or abridges any of the rights conferred by [Article 14 or Article 19] and [no law containing
a declaration that it is for giving effect to such policy shall be called in question in any court on the
ground that it does not give effect to such policy].Provided that where such law is made by the
Legislature of a State, the provisions of this Article shall not apply thereto unless such law, having been
reserved for the consideration of the President, has received his assent Right to Constitutional
Remedies. The insertion of this article made A. , and inapplicable to certain laws made by
Parliament or any legislature. Along with this it was also added that a declaration in the law that is to
implement the directive principles enshrined in A. 39(b) and (c) cannot be questioned in a court of
law. Therefore, the insertion of this article granted complete immunity to a law from judicial scrutiny
if the President certified that it was enacted to promote the policy laid down in A. 39(a) and (b). The
provisions of this Article would apply only if the law had received the assent of the President.

History behind Article 31C

This article was inserted by the 25th Constitutional Amendment to get over the difficulties placed by
judicial decisions in the way of giving effect to the Directive Principles in Part IV. It provided immunity
from any challenge on the grounds of violation of Article 14, 19 and 31 any law enacted for
implementing the directives in clause (b) and (c) of Article 39. In the 25th amendment it was further
provided that such law made to give effect to the policy under Article 39(b) and (c), would not be open
to judicial review. However, this second part was struck down in Keshavananda Bharti v State of
Kerala, but rest of the Article was held valid. After this amendment 42nd Constitutional Amendment
Act was passed by the Parliament which replaced Article 39(b)-(c) by all Directives contained in Part
IV of the Constitution. The part which was held unconstitutional in the Keshavananda Case was not
omitted from the official text of the Constitution, since later cases seems to restrict the scope of judicial
review of the statutory declaration only to the narrow question whether there is a reasonable nexus
between the act passed and the objects of the directive it seeks to implement. But in the Minerva mills
v Union of India , it was held that extending the immunity of Article 31C to all the Directives of Part IV
by the 42nd amendment was unconstitutional, thus, Article 31C is confined to its pre 1976 position,
which has not been overruled by any larger bench yet.

Decisions given by court on the Constitutionality of Article 31C

The validity of the 25th Constitutional Amendment was questioned in Keshavananda Bharti v State of
Kerala , Sikri C.J. held that since Parliament cannot under article 368 abrogate fundamental rights;
equally it cannot enable the legislature to abrogate them. Therefore article 31C must be declared
unconstitutional. The second part of Article 31C was held unconstitutional on the ground that it ousted

47
Class –LL.B (HONS.) II SEM. Subject – Constitution Law-II

the jurisdiction of the Courts which is a basic feature of the Constitution and which cannot be done
away with a amendment under Article 368.
Minerva Mills Ltd. v. Union of India, The extended version of article 31C was struck down by the
Supreme Court. The Court ruled that the extension of the shield of article 31C to all the Directive
Principles was beyond the amending power of Parliament under article 368 because by giving primacy
to all Directive Principles over the Fundamental Rights in articles 14 and 19, the basic or essential
features of the Constitution viz., judicial review has been destroyed.
Waman Rao v. Union of India , The Supreme Court maintained that article 31C as it stood prior to the
42nd Amendment Act made in 1978, was valid as its Constitutionality had been upheld in
Keshavananda Bharti case.
Sanjeev Coke Manufacturing Company v. M/s. Bharat Coking Coal Ltd. , The Supreme Court struck
down article 31C as unconstitutional (Amended portion in 42nd Amendment Act) on the ground that it
destroys the "basic features" of the Constitution. The goal set out in Part IV has to be achieved without
abrogating the means provided for by Part III. Thus there is no conflict between the directive
principles and the fundamental rights. These are meant to supplement one another. The Court held
that article 31C as originally introduced by the 25th Amendment is constitutionally valid.I.R. Coelho v.
State of Tamil Nadu , the Supreme Court held that any law which infringes basic structure of
the Constitution can be struck down. Parliament has power to amend Part III so as to abridge or take
away fundamental rights but that power is subject to the limitation of basic structure doctrine. There
should be a balance between fundamental rights an Directive Principles of State Policy.

Conditions for applicability of Article 31C

There are two conditions which must be fulfilled for the application of Article 31 C
1. A law for giving effect to the policy of the state to implement a Directive Principle in Article 39(b) or
(c).
2. The Legislature making a declaration to that effect.
But the question that whether the act is intended to secure the object contained in Article 39(b)-(c)
does not depend upon the declaration made by the legislature but upon the contents of the act as
found by the court.

48
 Freedom of Trade, Commerce and Intercourse

Introduction:

In all Federations an attempt is made through constitutional provisions to create and preserve

a national economic fabric to remove and prevent local barriers to economic activity, to

remove impediments in the way of inter-State trade and commerce and thus to make the

country as one single economic unit so that economic resources of all the various units may

be utilized to the common advantage of all.

The framers of the Indian Constitution were fully conscious of the importance of maintaining

the economic unity of the Union of India. Free movement and exchange of goods throughout

the territory of India was essential for the economic unity of the country which alone could

sustain the progress of the country. Free flow of trade, commerce and intercourse within and

across inter-State borders is an important pre-requisite for ensuring economic unity, stability

and prosperity of a country having a two-tier polity.

Most federal constitutions contain special provisions to protect this freedom. The Indian

Constitution also contains provisions guaranteeing freedom of commerce, trade and

intercourse throughout the territory of India. However, no freedom can be absolute.

Limitations for the common good are inherent in such freedom. That is why, legitimate

regulatory measures are not considered to constitute restrictions on this freedom.

Economic unity is one of the constitutional aspirations and safeguarding its attainment and

maintenance of that unity are objectives of the Indian Constitution.

3
Motivation For The Constitution-Makers:

In the matter of Atiabari Tea Co. Ltd. V. State of Assam 1, the Supreme Court explained in

detail the motivations and aspirations of the framers of the Constitution in drafting the Article

under Trade, Commerce and intercourse in Indian territory in the following words:

“In drafting the relevant Articles [Arts. 301-305] the makers of the Constitution were fully
conscious that economic unity was absolutely essential for the stability and progress of the
federal polity which had been adopted by the Constitution for the governance of the country.
Political freedom had been won, and political unity which had been accomplished by the
Constitution, had to be sustained and strengthened by the bond of economic unity. Local or
regional fears or apprehensions raised by local or regional problems may persuade the State
legislatures to adopt remedial measures intended solely for the protection of regional interests
without due regard to their effect on the economy. The object of the Constitution-makers was
to avoid such possibility. Free movement and exchange of goods throughout the territory of
India is essential for the economy of the nation and for sustaining and improving living
standards of the Country.”

Article 301.

Article 301: Subject to the other provisions of this Part, trade, commerce and intercourse

throughout the territory of India shall be free.

The main provision framed is Art. 301. According to this article “trade, commerce and

intercourse throughout the territory of India shall be free.” This constitutional provision

imposes a general limitation on the exercise of legislative power, whether of the Centre or of

the States, to secure unhampered free flow of trade, commerce & intercourse form one part

of the territory to another. The purpose underlying Art. 301 is to promote economic unity of

India and that there should not be any regional or territorial economic barriers.

1
AIR 1961 SC 232

4
Scope and object Art. 301.

1. Article 301 imposes a limitation upon the exercise of legislative power, whether by the

Union or by a State.

2. The object of the freedom declared by this Article is to ensure that the economic unity of

India may not be broken up by internal barriers 2.

3. Article 301 states that subject to the other provisions of Part XIII, trade, commerce and

intercourse throughout India shall be free. It is not freedom from all laws but freedom from

such laws which restrict or affect activities of trade and commerce amongst the States.

Article 301 of the Indian Constitution is modeled on section 92 of the Australian

Constitution. The origins of Art 301 may be traced directly to sec. 92 of the Australian

Constitution, but there are some significant differences between the two provisions like

Coverage under Art. 301 is broader than that of Sec. 92 of the Australian Constitution. The

freedom in India is wider than that in Australia under Section 92. While Section 92 refers to

inter- State trade only, Article 301 includes both inter-State and intra-State Trade Activities.

The restrictions in Australia were spelled out by the Court whereas in India the Constitution

itself lays down restrictions on Article 301 which are contained in Articles 302 to 305.

Although Article 301 is positively worded, in effect, it is negative as freedom

correspondingly creates general limitation on all legislative power to ensure that trade,

commerce and intercourse throughout India shall be free.

2
Atiabari Tea Co. v. State of Assam, AIR 1961 SC 232; State of Bombay v. Chamarbaugwala, AIR 1957 SC
699

5
In Jindal Stainless Ltd. v. State of Haryana 3, Article 301, refers to freedom from laws

which go beyond regulations which burden, restrict or prevent the trade movement between

States and also within the State.

Trade in liquor.

The permissive privilege to deal in liquor is not a “right” at all. The levy charged for parting

that privilege is neither a tax nor a fee. It is simply a levy for the act of granting permission

or for the exercise of power to part with the privilege. Therefore, Arts. 301-304 will be

rendered inapplicable at this activity in question. Further, there is not a single judgment

which upholds the applicability of Arts. 301-304 to the liquor trade. On the contrary

numerous judgments expressly hold these articles to be inapplicable to trade, commerce and

intercourse in liquor.

State of Punjab v. Devans Modern Breweries Ltd. 4

The freedom guaranteed by Art. 301 is not available to liquor because it is a noxious

substance injurious to public health, order and morality. Therefore, regulations in the interest

of public health and order takes the case out of Art. 301.

3
AIR 2006 SC 2550
4
(2004) 11 SCC 26 (paras 141, 116 and 145)

6
 Arts. 19(1) (g) and Article 301.

Article 19(1)(g) in Part III guarantees to every Indian citizen a fundamental right to carry on

trade and business, subject to such reasonable restrictions as may be imposed in the interests

of the general public. Also Articles 301 to 307 of Part XIII of the Constitution are provisions

relating to trade, commerce and intercourse within the territory of India. Article 301

guarantees that trade; commerce and intercourse shall be free throughout the territory of

India. It imposes a general limitation on the exercise of legislative power, whether of the

Union or of the States, to secure unobstructed flow of trade, commerce and intercourse from

one part of the territory of India to another.

Prima face, it seems that there is some overlapping between Art. 19(1)(g) and Art. 301,

because both aim at the freedom of trade or business, and if either of the provisions is

infringed, the aggrieved individual can seek his remedy from the Court against the offending

legislative or executive action.

There are two obvious points of distinction, namely:

(a) While Art. 19(1)(g) confers a fundamental right, Art. 301 confers a justiciable right but

it is not fundamental right.

(b) While Art. 19(1)(g) is confined to citizens, Art. 301 extends to all individuals.

In case of emergency, Art 19(1)(g) remains suspended and so the Courts can take recourse to

Art. 301, to adjudge the validity of a restriction on trade, commerce and intercourse.

7
In some other situations, both provisions may be applicable and it may be possible to invoke

both. Economic situations and conditions being unpredictable, it is not necessary to evolve

any conceptualistic differentiation between the two Articles. Art. 301 is mandatory provision

and any law contravening the same is ultra vires, but it is not a fundamental right and hence

is not enforceable under Art. 32.

In the matter of S. Ahmad v. State of Mysore 5, it was held that the three possible alternatives

where a petition will lie can be: -

1. A provision may be valid under Art 301-304, but may be invalid under Art. 19(1) (g); or

2. It may be invalid under Art. 301-304 as well; or

3. It may be invalid under Art. 301-304, but not under Art. 19(1)(g)

But still a common ground is left where the two articles are bound to overlap; some basis of

distinctions has, therefore, to be found out, particularly when the infringement of either

provision gives justiciable right to the individual.

Prior to the Supreme Court decision in the Automobile case 6, the consensus of opinion in

the High Courts, broadly, was that while Art. 19(1)(g) looked at the freedom from the point

of view of the individual, Art. 301 looked at it from the point of view of geographical

barriers or restrictions against the movement of goods, while Art. 19(1)(g) lays down the

rights of the citizen in the matter of profession, trade or business, Art. 301 deals with how the

trade, commerce and intercourse is to be carried on between one place and another, whether

the two places are situated in two States or are inside the same State 7.

5
AIR 1975 SC 1443
6
Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan, AIR 1962 SC 1406
7
Moti Lal v. Uttar Pradesh Govt., AIR 1951 All. 257

8
The majority in the Automobile case, have held the distinction is not so simple. It was not

correct to say that while Art. 19(1)(g) guaranteed an individuals right to carry on his trade

Art. 301 guaranteed a free flow of the volume of trade against geographical barriers. Art. 301

according to the majority, also aimed at the freedom of the individual from restrictions, not

necessarily geographical , - but since regulatory measures were outside the purview of Art.

301, the scope of the two provisions was not identical.

In Bishamber Dayal Chandra Mohan v. State of U.P 8, the freedom under both Art. 19(1)(g)

and 301 is subject to restrictions imposed by the State in the collective interest, which must

also be reasonable and not arbitrary or excessive. These limitations are inherent in both the

freedoms. Regulatory measures do not constitute restrictions under either provision.

In the matter of Saghir Ahmad v. State of U.P. 9, Mukherjea J. was of the view that while

Art. 19(1)(g) deals with the rights of the individuals, Art. 301 provide safeguards for the

carrying on trade as a whole distinguished from an individual’s right to do the same.

However in the matter of Dist. Collector, Hyderabad v. Ibrahim 10, the Supreme Court

denounced the theory that Art. 301 guarantees freedom in the abstract and not of the

individuals.

Again in the matter of Motilal v. State of U.P 11. and Bapubhai v. State of Maharashtra12,

there was a view that the difference between Art. 19(1)(g) and Art. 301 is that Art. 301 could

be invoked only when an individual is prevented from sending his goods across the State, or

from one point to another in the same state, while Art. 19(1)(g) can be invoked only when the

8
AIR 1982 SC 33
9
AIR 1954 SC 728, 742
10
AIR 1970 SC 1725
11
AIR 1951 SC 257
12
AIR 1956 BOM 21

9
complaint is with regard to the right of an individual to carry on business unrelated to, or

irrespective of, the movement of goods, i.e. while Art 301 contemplates the right of trade in

motion, Art 19(1)(g) secures the right at rest.

Subject to the other provisions of this part.- This means that while the general rule of

freedom of trade and intercourse is enunciated in Art. 301, it may be subjected to restrictions

imposed by law.

(a) by Parliament, under Arts. 302 and 303(2), and

(b) by the State Legislatures, under Art. 304, subject to the limitations prescribed by Arts.

302-302, respectively 13.

2. No such restrictions can be imposed by executive action.

The scope and content of Art. 301 depends on the interpretation of these three expressions used

therein, viz., Trade-Commerce-Intercourse/ Free/ Throughout Territory Of India.

1. Trade, Commerce and Intercourse: -

The words trade and commerce have been broadly interpreted. In most cases the accent has

been given on the movement aspect.

Trade, commerce. – Though the word ‘business’ is ordinarily more comprehensive than the

word ‘trade’, they are synonymous with the other. So used, trade or business would mean

some real, substantial and systematic or organized course of activity or conduct with a set

purpose.

‘Intercourse’. – This word is used to give the freedom declared by Art. 301 the largest

import. It thus includes the freedom to import things for personal or commercial use 14.

In the matter of Koteshwar v. K.R.B. & Co.15, the Supreme Court held that

13
State of Bihar v. Harihar Prasad Debuka, AIR 1989 SC 1119
14
Chobe, B.N v. Palnitkar, AIR 1954 Hyd. 207.

10
‘a power conferred on the state Government to make an order providing for regulating or

prohibiting any class of commercial or financial transactions relating to any essential article,

clearly permits imposition of restrictions on freedom of trade and commerce and, therefore,

its validity has to be assessed with reference to Art. 304(b)’.

In Fatehchand v. State of Mahararshtra16, the Supreme Court considered the question

whether the Maharashtra Debt Relief Act, 1976, was constitutionally valid vis-à-vis Art. 301.

This depended on the further question whether money-lending to the poor villagers which

was sought to be prohibited by the Act could be regarded as trade, commerce and

intercourse. The Court answered in the negative although it recognized that money-lending

amongst the commercial community is integral to trade and is, therefore trade. The Court

thus stated:

“In short, State action defending the weaker sections from social injustice and all forms of

exploitation and raising the standard of living of the people, necessarily imply that economic

activities, attired as trade or business, can be de-recognized as trade or business.”

17
In State of Bombay v. Chamarbaugwala , the Supreme Court held that the protection

offered by Art. 301 is confined to such activities as may be regarded a lawful trading activity

and does not extend to an activity which is res extra commercium and cannot be said to be

‘trade’. It cannot include activities which are inherently pernicious, such as trafficking in

women; hiring of goondas for committing crimes, gambling. and that, accordingly, there is

no question of the application of Art. 301 or 304 to laws made for the suppression of such

activities.

15
AIR 1969 SC 504
16
AIR 1977 SC 1825
17
State of Bombay v. Chamarbaugwala, AIR 1957 SC 699

11
2. Free: -

‘Shall be free’ ‘Freedom’ in this Article does not mean absolute freedom but freedom for

all restrictions except those which are provided in other articles of Part XIII, as well as

regulatory and compensatory measures. The power of the Union of the State to exercise

legitimate regulatory control is independent of the restrictions imposed by Arts. 302-305.

On the other hand, ‘restriction’ would not be valid if it does not come under Arts. 302-305.

Now, since restrictions under the latter provisions can be imposed only by law the freedom

under Art. 301 cannot be taken away by mere executive action.

The Supreme Court emphasized in Atiabari case that Art. 301 provides that the flow of trade

shall run smooth and unhampered by any restriction either at the boundaries of the State, or

at any other point inside the State themselves. The majority judgment emphasized that free

movement and exchange of goods throughout the territory of India is essential for sustaining

the economy and living standards of the Country.

The word ‘free’ in Art. 301 cannot mean absolute freedom or that each and every restriction

on trade and commerce is invalid. The Supreme Court has held in Atiabari that freedom of

trade and commerce guaranteed by Art. 301 is freedom from such restrictions as directly and

immediately restrict or impede the free flow or movement of trade.

In the matter of Amrit Banaspati Co. Ltd. V. Union of India 18, the Supreme Court observed

that:

“Suffice it to say that it is only when the intra-state or inter-state movement of the persons or

goods are impeded directly and immediately as distinct from creating some indirect or

consequential impediment, by any legislative or executive action, infringement of the

18
AIR 1995 SC 925

12
freedom envisaged by Art. 301 can arise. Without anything more, a tax law, per se may not

impair such freedom. At the same time, it should be stated that a fiscal measure is not outside

the purview of Art. 301 of the Constitution.”

The Supreme Court has ruled that the imposition of sales tax on goods sold within the State

cannot be considered as contravening Article 301.

A tax may, in certain cases, directly and immediately impede the movement or flow of trade,

but the imposition of a tax does not do so in every case. It depends on the context and

circumstances. Measures impeding the freedom of trade, commerce and intercourse may be

legislative or executive and may be fiscal or non-fiscal. Freedom may be impeded by

impediments on the individuals carrying on trade or business, on the business itself, or on the

vehicles, carriers, instruments and labour used in trade and commerce.

Any person aggrieved by infringement of Art. 301 can seek his remedy from the court

against the offending legislative or executive action.

3. Throughout The Territory Of India: -

‘Throughout the territory of India’, these words extend the freedom not only to inter-State

but also in intra-State transactions and movements 19.

As according to State of Bombay v. R.M.D.C. 20, Art. 302 and 304 state the words “territory

of India” in Art. 301 removes all inter-State or intra-State barriers, and brings out the idea

that for the purpose of the freedom of trade and commerce, the whole country is one unit.

Trade cannot be free throughout India if barriers exist in any part of India, be it inter-State or

intra-State.

19
State of Madras v. Nataraja Mudaliar, AIR 1969 SC 147
20
AIR 1957 SC 699

13
Regulatory Measures

Measures which impose compensatory taxes, or, are purely regulatory, do not come within

the purview of 'restrictions' contemplated in Article 301 because they facilitate flow of trade,

rather than hampering it. Such measures, therefore, need not comply with the requirement of

the provisions of Article 304(b). Thus, a State law imposing a tax, for vehicle, on the owners

of motor vehicles does not directly affect the freedom of trade or commerce even though it

indirectly imposes a burden on the movement of passengers and goods within the territory of

the taxing State.

Regulatory measures are not regarded as violative of the freedom guaranteed by Art. 301.

The word ‘free’ in Art. 301 does not mean freedom from such regulation as is necessary for

an orderly society. Regulatory measures do not fall within the purview of the restrictions

contemplated by Art. 301.

In the matter of G.K. Krishnan v. State of Tamil Nadu 21, the Supreme Court observed:

“there is clear distinction between laws interfering with freedom to carry out the activities

constituting trade and laws imposing on those engaged therein rules of proper conduct or

other restraint directed to the due and orderly manner of carrying out the activities.”

The word ‘regulation’ does not have any fixed or inflexible meaning. It is difficult to define

this word as it has no precise meaning. It is a word of broad import, having a broad meaning

and is very comprehensive in scope. Every case has to be judged on its own fact and its own

facts and in its own setting of time and circumstances. It may be that in some situations even

a ‘prohibition’ may be regarded as being regulatory in nature and not hit by Art. 301.
21
AIR 1975 SC 583, 587

14
In the matter of the State of Tamil Nadu v. Sanjeetha Tarding Co.22, the Supreme Court

observed: “According to us, the expression ‘free trade’ cannot be interpreted in an

unqualified manner. Any prohibition on movement of any article from one State to another

has to be examined with reference to the facts and circumstances of that particular case-

whether it amounts to regulation only, taking into consideration the local conditions

prevailing, the necessity for such prohibition and what public interest is sought to be served

by imposition thereof.”

Remedies for infringement of Art. 301. – 1. Not being a fundamental right, the

infringement of Art. 301 cannot be challenged by a petition under Art. 32. This does not

mean, however, that the individual has no remedy if Art. 301 if infringed. Either an

individual or a State can challenge any legislative or executive action which offends against

this Article, by other proceedings e.g. under Art. 226.

2. The doctrine of severability applies where a statutory provision or order violate the

provision of Art. 301 or 304.

Restrictions upon the freedom.- 1- The limitation imposed upon inter-State freedom of

trade, commerce and intercourse, by the other provisions of Part XIII are –

(a) It is subject to non-discriminatory restrictions imposed by Parliament, in the public

interest (Art. 302) 23.

(b) Even discriminatory or preferential provisions may be made by Parliament, for the

purpose of dealing with a scarcity of goods arising in any part of India (Art. 302(2).

22
AIR 1993 SC 237, 243
23
Dt. Collector of Hyderabad v. Ibrahim & Co., AIR 1970 SC 1278

15
(c) Non-discriminatory taxes may be imposed by States on imported goods similarly as in

intra-State goods. (Art. 304(a).

(d) Reasonable restriction may be imposed by a State in the public interest (Art. 304(b).

(e) Restrictions imposed by existing law to continue except insofar as provided otherwise by

order of the President [Art. 305]. Existing laws relating to any matter referred to in Art. 19(6)

(ii) are also protected.

2. The freedom cannot be restricted by mere executive order.

A. Instances of laws held invalid:

(i) Assam Taxation on Goods carried by Roads or Inland Waterways Act, 1954.

(ii) Jute Packaging Material (Compulsory Use in Packing Commodities) Act, 1987:

(iii) Provisos of Rule 2 made under the Mysore Forest Act, 1900.

(iv) Tripura Transit Rules, Rule 3.

B. Instances of Acts held not to contravene Art. 301:

(i) Andhra Pradesh Sugarcane (Regulation of Supply and Purchase), Act, 1961.

(ii) Assam Motor Vehicles Taxation (Amendment) Act, 1963, 1966.

(ii) A. P. General Sales Tax Act, 1957, Entry 24(a) of Sch. I

(iv) Karnataka Tax on Entry of Goods Act, 1979, S. 3(1).

(V) M.P. Sthaniya Kshetra Me Mal Ke Pravesh Par kar Adhiniyam, 1976, S.3.

(vi) Mines & Minerals ()Reg. & Development) Act, 1957.

(vii) T. N. Essential Articles Control and Requisitioning Act, 1949.

(viii) T. N. Timber Transit Rules, 1968-Rr. 1-A(3)(b), 2, 3(ii) and 7(4).

(ix) Tripura Sales Tax Act, 1976, S.38-B.

16
 Power of Parliament to impose restrictions on trade, commerce and intercourse.

Parliamentary Power To Regulate Trade & Commerce:

Art. 302. Parliament may by law impose such restrictions on the freedom of trade, commerce

or intercourse between one State and another or within any part of the territory of India as

may be required in the public interest.

Therefore, Art. 302 empowers Parliament to impose by law such restrictions on the freedom

of trade, commerce and intercourse between one state and another, or within any part of the

territory of India, as may be required in the public interest.

By virtue of Art. 302, Parliament is, notwithstanding the protection conferred by Art. 301,

authorized to impose restrictions on the freedom of trade, commerce and intercourse in the

public interest. Thus, Art. 302 relax the restriction imposed by Art. 301 in favor of

Parliament.

The Sarkaria Commission 24 justified the present position in the following words as:

“The need for empowering Parliament to place restrictions on trade and commerce even

within a State is obvious. Ours is a vast country with varying economic potentiality and

considerable differences in regard to existing levels of development. The Unions

responsibility in respect of certain matters may, therefore, entail regulating trade and

commerce even within a State for achieving national objectives. For example there is the

need to protect the interests of the poor and weaker sections of our community like the tribal

people etc. Indiscriminate exploitation of natural resources in one State, for example

denudation of forests, may have far reaching implications for other States which may be

affected by floods, silting up of reservoirs etc. Such situations may require imposition of
24
] SARKARIA COMMISSION REPORT, 502 (1988)

17
restrictions on trade even within the State. The importance of Parliamentary control over

intra-State trade is also significant where centers of production of certain commodities are

situated entirely within a State but the centers of consumption are located outside the State.”

The requirement of ‘public interest’ in Art. 302 would not present any serious problem in the

way of parliament regulating trade and commerce because of the strong presumption in favor

of parliamentary legislation being in public interest.

The majority judgment in Atiabari case even suggested that prima facie the question of

public interest underlying a Parliamentary law imposing restrictions on the freedom of trade

‘may not be justiciable’. If this be the correct approach, then Parliament’s power to decide

what restrictions need be imposed under Art. 302 may be said to be practically unlimited.

But the correctness of the view was doubted in the matter of Kheyerbari 25 by the Supreme

Court. In case of Art. 19(1)(g), the concept of public interest is justiciable and there appears

to be no reason why Art. 302 should be treated differently. From a practical point of view,

however, to hold ‘public interest’ as justiciable may not mean much for it is rare for a Court

to hold that a legislation lacks public interest.

A person challenging the law will have to show to the Court why it is not required in public

interest, and this, is a difficult task except in the rare case where the law is seen on its face to

have been passed for a private purpose.

In another turn, Parliament enacted the Municipal Corporation Act, 1957, and empowered

the Corporation to levy terminal tax on all goods carried by railway or road in the Union

territory of Delhi from any place outside thereof. The Supreme Court declared the levy valid

on two grounds, viz.

25
Kheyerbari Tea Co V. State of Assam, AIR 1964 SC 925

18
1. It does not impose any direct and immediate impediment on the inter-State movement of

goods and so was not hit by Art. 301 which only hits direct and immediate impediments on

intra-State or inter-State movements of goods or persons. It is true that a tax may in certain

cases, directly and immediately impede the movement or flow of trade, but the imposition of

the tax does not do so in every case.

2. Even if the act ‘directly and immediately’ impedes the movement of the goods, the

statutory provision is saved by Art. 302. There is a presumption that the imposition of a tax is

in public interest 26.

The Court has stated that only when the intra-State or inter-State movement of the persons or

goods are impeded directly and immediately as distinct from creating some indirect or

inconsequential impediment by any legislative or executive action, infringement of the

freedom envisaged by Art. 301 can arise, without anything more, a tax law, may not impair

the said freedom. At the same time, it should be stated that a fiscal measure is not outside the

purview of Art. 301 of the Constitution.

Limitations on Power of Parliament—Article 303 (1) and (2): -

This guarantee of freedom is expressly subject to the other provisions of Part XIII (Articles

302 to 305) of the Constitution. Article 302 enables Parliament to impose restrictions, by

law, on the freedom of trade, commerce and intercourse between one State and another or

within any part of the territory of India as may be required in public interest. But, this power

to place restrictions cannot be used by Parliament to make any law which discriminates

between one State and another or gives preference to one State over another, “by virtue of
26
Amrit Banaspati Co. Ltd v. Union of India, AIR 1995 SC 1340

19
any Entry in the Seventh Schedule relating to trade and commerce” [Article 303(1)]. Clause

(2) of the Article engrafts an exception to the limitation contained in clause (1), in as much as

it permits Parliament to make a law giving preference, or making discrimination between one

State and another, if it is declared by such law that it is necessary to do so for the purpose of

dealing with a situation arising from scarcity of goods in any part of the territory of India.

It was argued in State of Madras v. Nataraja Mudaliar 27, that as it hampered trade and

commerce by giving preference to one State over another, or by making discrimination

between one State and another, Arts. 301 and 303(1) were infringed. The Court rejected the

argument holding that an act enacted for the ‘purpose of imposing tax which is to be

collected and retained by the State’ does not amount to a law giving preference to one State

over another, or making any discrimination between one State and another, merely because

of varying rates of tax prevailing in different States. Several reasons adduced in support of

the view stated:

1. The flow of trade does not necessarily depend upon the rates of sales tax and various other

factors also are relevant.

2. Referring to Australian cases 28 , the Court derived the principle applicable in the Nataraja

case, viz. ‘where differentiation is based on considerations not dependent upon natural or

business factors which operate with more or less force in different localities that the

Parliament is prohibited from making a discrimination’.

Art. 302 thus authorize Parliament to mitigate the effect of Art. 301 and Art. 303 does not cut

into Art. 302 much. In the end result, Parliament is left with an abundant capacity to regulate

trade and commerce and it is more akin to the American congress in this respect than to the

27
AIR 1969 SC 147
28
King v. Barger, 6 CLR 41

20
Australian Parliament. Art. 301 is worded on the model of Sec. 92 of the Australian

Constitution, and both provisions restrict Parliament, but then Art. 302, to a very large extent,

frees the Indian Parliament from the restraints of Art. 301.

Instances of legislation under Art. 302:

(i) Essential Commodities Act, 1955 29, and Orders made there under.

(ii) Defence of India Act, 1962, and the Rules made there under 30.

(ii) Central Sales Tax Act, 1956, 8(2)(b).

(iv) Mines & Minerals (Regulation & Development) Act, 1957 31.

Regulation and Restriction. - 1. It is now established that even apart from the specific

provisions in Arts. 302 -305, the Union as well as State Legislatures have the power to

exercise legitimate regulatory 32 control over the freedom of trade and commerce, which does

not amounts to a restriction. In fact, legitimate regulation does not infringe the freedom

declared by Art. 301 33.

It is therefore necessary to distinguish a regulation from restriction, which term is used in

Arts. 302, 304(b): While restrictions obstruct the freedom of movement of inter-State

transactions, regulations promote it 34.

29
Bishamber Dayal Chandra Mohan v. State of UP, AIR 1982 SC 33
30
Surajmal Roopchand v. State of Rajasthan, AIR 1967 Raj. 104.
31
State of T. N. v. Hind Stone, AIR 1981 SC 711
32
Manick Chand Paul v. Union of India, AIR 1984 SC 1249
33
Malwa bus services Ltd. v. State of Punjab, AIR 1983 SC 634
34
Automobile transport Rajasthan Ltd. v. State of Rajasthan, AIR 1962 SC 1406

21
The following measures have thus been held to be regulatory –

(a) Police regulations, such as provisions for lighting, rules of the road, etc., which facilitate

the movement rather than retard it.

(b) Licensing provisions with compensatory fees 35.

(c) Provision for necessary services to enable the free movement, whether charged for or not.

On the other hand, the following have been held to be restriction rather than regulation:

(i) A rule which totally prohibits movement of certain goods during a specified period 36.

(ii) Anything which directly hinders the free flow of trade, commerce and intercourse

between any two parts of India, constitutes a restriction within the meaning of Arts. 302, 304

2. A restriction may be valid only if it conforms to the terms of Art. 302 or 304(b), as the

case may be.

3. In determining whether a State Act imposing tax amounts to restriction on trade,

commerce and inter-course among the States, the Court should examine whether the

impugned provisions amounted to a restriction directly or indirectly on the movement of

trade and commerce 37.

In the public interest. – 1. This means that even where a restriction imposed by law

imposes a direct burden on the freedom of trade under Art. 301, it may be constitutionally

35
State of Mysore v. Sanjeeviah, AIR 1967 SC 1189
36
Koteswar Vittal Kamath v. K. Rangappa Balig & Co., AIR 1969 SC 504
37
State of H.P. v. Yash Pal Garg, (2003) 9 SCC 92

22
valid, if it is required in the public interest, e.g., to prevent evasion of tax, to canalize inter-

State trade through registered or licensed dealers 38.

2. Article 302 is, however, subject to the condition in Art. 303 that such Union law should

not be discriminatory as between different States except where it is necessary for dealing

with a situation of scarcity of goods [Art. 303(2)].

3. In order to be protected by Art. 302, the nexus of the law with public interest must be

reasonable, even though that word is not used in Art. 302 39. This does not, however, imply

any quasi-judicial obligation or compliance with the rules of natural justice 40.

4. If the condition of public interest is satisfied, Art. 302 would authorize both inter-State or

intra-State restriction 41.

States power to regulate trade and commerce

Limitations imposed by Article 303(1) on the legislative power of Parliament apply to that of

the State Legislatures, also. But, the State Legislatures do not have the exceptional power to

enact discriminatory laws, which is available to Parliament by virtue of Article 303(2).

Article 304 carves out two exceptions in favor of the State Legislatures, to the freedom

guaranteed under Article 301.

38
State of T.N. v. Sitalakshmi Mills, AIR 1974 SC 1505
39
Prag Ice and Oil Mills v. Union of India, AIR 1978 SC 1296
40
Saraswati Industrial syndicate Ltd. v. Union of India, AIR 1975 SC 460
41
State of Madras v. Nataraja Mudaliar, AIR 1969 SC 147

23
A State legislature may by law impose on goods imported from other States or the Union

Territories, any tax to which similar goods manufactured or produced in that State are

subject, however, not so as to discriminate between goods so imported and goods so

manufactured or produced. [Clause (a) of Article 304].

Art. 304(a) imposes no ban, but lifts the ban imposed by Arts. 301 and 303, subject to one

condition. Art. 304(a) is thus enabling and prospective. According to Art. 304(a), a State

legislature may by law impose on goods imported from other States any tax to which similar

goods manufactured or produced within that State are subject, as not to discriminate between

goods so imported and goods so manufactured or produced.

For application of Art. 304(b) to a tax on trade, three conditions need to be fulfilled:

1. The Bill has to be introduced or moved in the State legislature with the prior sanction of

the president, or that the Bill has been assented to by the President.

2. The tax in question constitutes a reasonable restriction.

3. The tax has been levied in public interest.

In Automobile Transport 42, the Supreme Court compared Art. 304(b) with Art. 302 in the

following words:

“This provision [Art. 304(b)] appears to the State analogue to the Union Parliament’s

authority defined by art. 302. Leaving aside the pre-requisite of presidential sanction for the

validity of State legislation under clause (b) provided in the proviso thereto, there are two

important differences between Art. 302 & Art. 304(b). The first is that while the power of

Parliament under Art. 302 is subject to the prohibition of preferences and discriminations
42
Automobile Transport v. State of Rajasthan, AIR 1962 SC 1406

24
decreed by Art. 303(1) unless Parliament makes the declaration contained in Art. 303(2), the

State’s power contained in Art. 304(b) is made expressly free from the prohibition contained

in Art. 303(1), because the opening words of Art. 304 contain a non-obstanate clause both to

Art. 301 and Art. 303. The second difference springs from the fact that while Parliament’s

power to impose restrictions upon Art 302 upon freedom of commerce in the public interest

is not subject to the requirement of reasonableness, the power of the States to impose

restrictions on the freedom of commerce in the public interest under Art. 304 are subject to

the condition that they are reasonable”.

Although Article 302 does not speak of reasonable restrictions yet it is evident that the

restrictions contemplated by it must bear a reasonable nexus with the need to serve public

interest. In several recent decisions where the constitutional validity of a law imposing

restrictions under Article 302 was challenged, the Supreme Court did apply the test of

reasonableness to uphold the validity of those ‘restrictions’.

Need For An Authority Under Article 307

Article 307 empowers Parliament to appoint such authority as it considers appropriate for

carrying out the purposes of Arts. 301, 302, 303 and 304. It can confer on such authorities

such powers and duties as it thinks necessary.

Several State Governments are in favour of setting up an authority contemplated in Article

307. Some of them consider that such an 'authority' may be useful in the context of

enforcement of laws relating to essential commodities and settling questions of taxation,

cesses, duties, etc. One of them has also referred to the need for continuous appraisal of the

various fiscal laws as well as executive decisions and measures which the Union and the

25
States took from time to time on trade, commerce and intercourse within the country. The

Chambers of Commerce have also emphasized the need for setting up of an authority

contemplated by Article 307, especially for recommending measures to rationalise or modify

restrictions imposed by the different States.

The Government of India does not consider it necessary to set up such an authority. The

Department of Civil Supplies has expressed its view as follows:

“Since the situations keep on changing from time to time in the country, the Ministries at the

Centre should be able to respond to such situations more promptly and appropriately because

they have the readily available advice with them of experts, legal opinion, information from

various parts of the country and views of the producing and consuming States, etc. The

establishment of an authority under Article 307, would only cause delays, conflicts and

controversies among the various States/regions. Moreover, the authority if established, can

only be a data collecting, deliberative and advisory body but not a decision making authority

which still shall have to rest with the Central Government. The Department, therefore, does

not consider the necessity of setting up of an authority under Article 307 of the Constitution

to settle issues among the various States.”

Trade, Commerce and intercourse cover a multitude of activities. Actions of the Union and

State Governments have wide-ranging impact on them. Legislative and executive actions in

the field of licencing, tariffs, taxation, marketing regulations, price controls, procurement of

essential goods, channelisation of trade, and controls over supply and distribution, all have a

direct and immediate bearing on trade and commerce. Innumerable laws and executive orders

occupy the field today. This has led to an immensely complex structure. Many issues of

conflict of interests arise every day.

26
We are of the view that it would be advantageous to constitute an authority under Article

307 and It should be an expert body. Being removed from the pressures of day to day

administration it would be able to formulate objective views, taking into account the long

term perspective, in regard to various intricate problems relating to trade, commerce and

intercourse. Being an expert constitutional body it would also inspire confidence among the

various States and other interests. Such an expert body would be eminently suited to strike a

proper balance between freedom of trade and the need for restrictions in order to foster

development with social justice.

Conclusion & Suggestion

Free flow of trade, commerce and intercourse within and across inter-State borders is an

important pre-requisite for ensuing economic unity, stability and prosperity of a country.

Limitations for the common good are inherent in such freedom, least it should de-generate

into a self-defeating license.

Notwithstanding the fact that the word 'reasonable' is not used in Article 302, a low imposing

restrictions under Article 302 would be open to judicial review on the ground that it has no

reasonable nexus with the public interest alleged. The proposal for insertion of the word

'reasonable' before the world 'restriction' in Article 302 is thus merely of theoretical

significance and cannot be supported.

Intra-State trading activities often have a close and substantial relation to inter-State trade

and commerce. State laws though purporting to regulate intra-State trade may have

implications for inter-State trade and commerce. These may impose discriminatory taxes or

unreasonable restrictions impeding the freedom of inter-State trade and commerce. If clause

27
(b) of Article 304 is deleted, the commercial and economic unity of the country may be

broken up by State laws setting up barriers to free flow of trade and intercourse through

parochial or discriminatory use of their powers.

The scheme of the Articles in Part XIII, considered as a whole, is well-balanced. It reconciles

the imperative of economic unity of the Nation with interests of State autonomy by carving

out in clauses (a) and (b) of Article 304, two exceptions in favour of State legislatures to the

freedom guaranteed under Article 301.

Considering the intricate nature and the need for objective examination of the wide-ranging

issue connected with the freedom of trade, commerce and intercourse, it is recommended,

that an expert authority should be constituted under Article 307. Among other things, such an

authority may be enabled to:

(a) Survey and bring out periodically a report on the restrictions imposed on intra-State and

inter-State trade and commerce by different governments and their agencies;

(b) Recommend measures to rationalize or modify the restrictions imposed to facilitate free

trade and commerce;

(c) Examine complaints from the public and the trade in this regard; and

(d) Suggest reforms in the matter of imposition, levying and sharing of taxes for purposes of

Part XIII of the Constitution.

The ambit of Article 307 is wide enough to bring all matters relevant to freedom and

regulation of trade, commerce and intercourse within the purview of such an authority 'for

carrying out the purposes of Articles 301, 302, 303 and 304'. It is entirely left to the judgment

of parliament to clothe the 'authority' under Article 307 with such powers and duties as may

28
be considered necessary. Such an 'authority' may have both an advisory and executive, role

with decision-making powers. To begin with such an authority may be assigned an advisory

role. In course of time in the light of experience gained, such additional powers as may be

found necessary can be conferred on it.

Therefore we can say that Articles in the Part XIII of the Indian Constitution make a

complete package to look after the activities of Trade, Commerce and Intercourse in all

respects.

29
 CONSTITUTIONAL PROVISIONS OF SERVICES UNDER UNION AND STATES

The Constitution of India provides for the creation of All India Services that are common to the
Union and the States. The All India Services Act, 1951 provides that the Central Government
may make rules for regulating the recruitment and the conditions of service of persons appointed
to the All India Services.

 Presently only the IAS, the IPS and the IFS have been constituted as All India Services.

 The recruitment to these services is made through the Union Public Service Commission on the
basis of the annual Civil Services Examination.

 This is intended to insulate the civil service from political influences and prevent the
development of a patronage system.

 The officers of the All India Services are recruited and trained by the Union Government and
serve in the various State Governments as well as Centre.

 Please note that the Indian Revenue Service is called a Central Service instead of an All India
Service as they work only in the Central Government.

Contents

 Cadres
 Indian Administrative Service (IAS)
 Indian Forest Service (IFoS)
 Indian Police Service
 Applicability to Jammu & Kashmir
 Regulation of recruitment and conditions of the public services
 Applicability of doctrine of pleasure
 Removal and Dismissal of civil servants
 Creation of new All India Services
 Proposed All India Judicial Service
 Change in condition of service of Civil Servants
 State public service commissions
 Removal of chairman /member of the public service commission can be removed
 number of members in public service commissions
 Can chairman of UPSC join any other government job after he has ceased to hold office?
 How examinations are conducted by Public Service Commissions?
 Who submits the report of public service commission’s in parliament / assembly?
 Cadres

The officers of All India Services are organized into cadres, derived from the states they are
allotted to work in for as long as they continue to be a member of the respective Service.
Twenty-four states have their own cadre, but there are also three joint cadres: Assam-Meghalaya,
Manipur-Tripura, and Arunachal Pradesh-Goa-Mizoram-Union Territories (AGMUT). Recently
the North-Eastern Areas (Re-organisation) Amendment Bill, 2011 was approved by the cabinet
which seeks to provide for separate Cadres of All India Services for the States of Manipur and
Tripura.

 There are State Cadres and the Officers of All India Services (AIS) – Indian Administrative
Service, Indian Police Service and Indian Forest Service – are divided into State cadres.

 When on probation the All India Service (AIS) Officers are allocated to their States. Officers of
AIS working with the Central Government are posted on deputation for some years.

 The AIS officers in a State cadre may be original residents of that State but almost 2/3 of all
officers are from outside the state.

 The AIS officer cannot demand his home State cadre but may put in request for being
considered for the home cadre. Generally once allotted to a State, an officer for his whole
service stays with that State cadre.

The All India Services Act 1951 empowers the government of India to make, after consultation
with state governments, rules for the regulation of recruitment and conditions of service of the
persons appointed to an All India Service.

Indian Administrative Service (IAS)

 Controlled by the Central Government.

 Selected candidates are appointed to different state cadres and as and when required they also
move to Central Government jobs on deputation.

 IAS Officers are trained to handle government affairs. This being the main responsibility, every
civil servant is assigned to a particular office which deals with policy matters pertaining to that
area.

 The policy matters are framed, modified, interpreted in this office under the direct supervision
of the Administrative Officer in consultation with the Minister. The implementation of policies
is also done on the advice of the Officer.

 Cabinet Secretary stands at the top of the government machinery involved in Policy making
followed by Secretary/Additional Secretary, Joint Secretary, Director, Under Secretary and
Junior Scale Officers in that order.
 These appointments are filled by civil servants according to seniority in the Civil Services. In the
process of decision making, a number of officers give their views to the Minister who weighs the
matter and makes a decision considering the issue involved.

Indian Forest Service (IFoS)

India was one of the first countries in the world to introduce scientific forest management.

 1864 → British Raj established the Imperial Forest Department.

 1866 → Dietrich Brandis, a German forest officer, was appointed Inspector General of Forests.

 1867→The Imperial Forestry Service was organized subordinate to the Imperial Forest
Department.

The British colonial government also constituted provincial forest services and executive and
subordinate services similar to the forest administrative hierarchy used today. Officers appointed
from 1867 to 1885 were trained in Germany and France, and from 1885 to 1905 at Cooper’s Hill,
London, a noted professional colleges of forestry. From 1905 to 1926, the University of Oxford,
University of Cambridge, and University of Edinburgh had undertaken the task of training
Imperial Forestry Service officers.

 From 1927 to 1932, forest officers were trained at the Imperial Forest Research Institute (FRI)
at Dehradun, which had been established in 1906.

 The Indian Forest College (IFC) was established in the 1938 at Dehradun, and officers
recruited to the Superior Forest Service by the states and provinces were trained there.

 Forestry, which was managed by the federal government until then, was transferred to the
“provincial list” by the Government of India Act 1935, and recruitment to the Imperial Forestry
Service was subsequently discontinued.

 The modern Indian Forest Service was established in the year 1966, after independence, under
the All India Services Act 1951.

 The first Inspector General of Forests, Hari Singh, was instrumental in the development of the
IFS.

Indian Police Service

The Indian Police Service is responsible for internal security, public safety and law and order. In
1948, a year after India gained independence from Britain; the Imperial Police (IP) was replaced
by the Indian Police Service.

Please note that IPS is not a law enforcement agency; rather it is the body to which all senior
police officers belong regardless of the agency for whom they work.
 Applicability to Jammu & Kashmir

Article 308 says that in this part, the Expression State does not include the State of Jammu and
Kashmir. This means that provisions of Part XIV don’t apply to Jammu & Kashmir. However,
please note that we have a Jammu and Kashmir Cadre.

Regulation of recruitment and conditions of the public services

Article 309 empowers the Parliament and the state legislatures to regulate the recruitment and the
conditions of service of the persons appointed to public services and posts under the Centre and
States respectively. The original constitution provided that until such laws are made, the
president or Governor can make rules for the regulation of such matters.

Applicability of doctrine of pleasure

Doctrine of pleasure is applicable to public services. Article 310 says that the services under Part
XIV are under the pleasure of the President or Governor. This section makes it clear that a
person who is a member of a defense service or of a civil service of the Union or of an all-India
service or holds any post connected with defense or any civil post under the Union holds office
during the pleasure of the President, and every person who is a member of a civil service of a
State or holds any civil post under a State holds office during the pleasure of the Governor 3 of
the State.

Though, these officers hold the office during the pleasure of the president and Governor, yet
their dismissal is subject to a condition. This condition has been stipulated in article 310(2).
Article 310(2) says that in case of dismissal of a person from these services, the president or the
Governor may (in order to secure the services of a person having special qualifications) provide
for the payment to compensation. This compensation may be provided on the following grounds:

 If the post is abolished before expiration of the contractual period or

 If he / she is required to vacate that post for reasons not connected with misconduct on his / her
part.

Removal and Dismissal of civil servants

Article 311 makes it clear that a person who is a member of the civil service of the Union or
State can not be dismissed or removed by an authority subordinate to that by which he was
appointed. The removal is possible only after an inquiry in which he / she has been informed of
the charges against him / her and given a reasonable opportunity of being heard in respect of
those charges. However, the above rule is not applicable in the following cases:

 If the person is convicted on a criminal charge.

 If the authority empowered to remove him / her, records in written that there are satisfactory
reasons to remove him / her from service and its practically not possible to conduct such
inquiries. The decision of the authority in such cases is final.

If the Governor or President is satisfied that such inquiry is not needed in the interest of the
security.

Creation of new All India Services

Article 312 says that if the Rajya Sabha has declared by resolution supported by not less than
two-thirds of the members present and voting (Special Majority) that it is necessary or expedient
in the national interest so to do, Parliament may by law provide for the creation of one or more
all India services. Please note that this also includes an All India Judicial Service. Article 312
also makes it clear that the services known at the commencement of Indian Constitution as the
Indian Administrative Service and the Indian Police Service shall be deemed to be services
created by Parliament under this article.

Proposed All India Judicial Service

Article 312 also makes it clear that the all-India judicial service shall not include any post
inferior to that of a district judge as defined in article 236. The law providing for the creation of
the all-India judicial service aforesaid may contain such provisions for the amendment of
Chapter VI of Part VI as may be necessary for giving effect to the provisions of that law and no
such law shall be deemed to be an amendment of this Constitution for the purposes of article
368.

Change in condition of service of Civil Servants

Article 312 A makes it clear that the Parliament by law can change/ revoke the conditions of the
services with respect to the remuneration, leave and pension and the rights as respects
disciplinary matters of persons who, having been appointed to serve under the Government of
India or of a State in any service or post.

The article 312 also makes it clear that dispute on such a decision shall not be questioned in any
court.

State public service commissions

Article 315 makes provisions for Public Service Commissions for the Union and Each state. If
two or more States may agree that there shall be one Public Service Commission for that group
of States, and if a resolution to that effect is passed by the House or, where there are two Houses,
by each House of the Legislature of each of those States, Parliament may by law provide for the
appointment of a Joint State Public Service. Chairman and other members of a Public Service
Commission shall be appointed as follows:
 President → for UPSC and Joint Public Service Commission

 Governor → for state public service commission

Further, around 50% of the members of every Public Service Commission shall be persons with
minimum 10 years experience under Government of India or under the Government of a State.
A member of a Union Public Service Commission holds the office for a term of 6 years from the
date on which he enters upon his office or 65 years of age. The age for State Public Service
Commission or Joint Commission is 62 years. A member of Public service commission tenders
his / her resignation to President (in case of UPSC/JPSC) or to Governor in case of State Public
Service Commission. A member of Public Service Commission is NOT eligible for
reappointment into the same office again, once the term has expired.

Removal of chairman /member of the public service commission can be removed

Article 317 deals with the removal of the Chairman or any other member of a Public Service
Commission. Please note that thought the chairman and members of UPSC / JPSC are appointed
by President and State PSCs by Governor, the removal of chairman or any member of even a
state Public Service Commission can be done ONLY by President.

They can be removed from office by order of the President on the ground of misbehaviour after
the Supreme Court, on reference being made to it by the President, has, on inquiry held in
accordance with the procedure prescribed in that behalf under article 145, reported that the
Chairman or such other member, as the case may be, ought on any such ground to be removed.

However, this article makes it clear that President, in the case of the Union Commission or a
Joint Commission, and the Governor in the case of a State Commission, may suspend from office
the Chairman or any other member of the Commission in respect of whom a reference has been
made to the Supreme Court. This suspension would be valid until the President has passed orders
on receipt of the report of the Supreme Court on such reference.

Number of members in public service commissions

Article 318 makes it clear that the numbers of members of commission, conditions of service etc.
are determined by the President in case of UPSC and JPSC and Governor in case of State PSCs.

Can chairman of UPSC join any other government job after he has ceased to hold office?

No. Article 319 makes it clear that once the chairman of the UPSC has ceased to hold the office,
he / she shall be ineligible for further employment, either under Government of India or
Government of state.

However, the same article makes clear that Chairman of a State Public Service Commission shall
be eligible for appointment as the Chairman or any other member of the Union Public Service
Commission or as the Chairman of any other State Public Service Commission, but not for any
other employment either under the Government of India or under the Government of a State.

The members of the UPSC shall be eligible for appointment as the Chairman of the Union Public
Service Commission, or as the Chairman of a State Public Service Commission, but not for any
other employment either under the Government of India or under the Government of a State.

How examinations are conducted by Public Service Commissions?

Article 320 makes it clear that it shall be the duty of the Union and the State Public Service
Commissions to conduct examinations for appointments to the services of the Union and the
services of the State respectively.

If two or more states request the UPSC to assist the states in framing and operating schemes of
joint recruitment for any services for which candidates possessing special qualifications are
required, UPSC will help them out.

Article 321 says that an act made by Parliament or Legislature of a State may provide for the
exercise of additional functions by the Union Public Service Commission or the State Public
Service Commission.

Article 322 makes it clear that expenses of the Union or a State Public Service Commission,
including any salaries, allowances and pensions payable to or in respect of the members or staff
of the Commission, shall be charged on the Consolidated Fund of India or Consolidated Fund of
the State.

Who submits the report of public service commission’s in parliament / assembly?

Article 323 makes it clear that it will be the duty of the UPSC to present annually to the
President a report as to the work done by the Commission and on receipt of such report
the President shall cause it to be laid before each House of Parliament.

In case of state public service commission, the same will be done by the Governor.

If the case is of a Joint Public Service Commission, then the JPSC will present a report annually
to the Governor of each of the States the needs of which are served by the Joint Commission a
report as to the work done by the Commission in relation to that State.
 CONSTITUTIONAL PROVISIONS OF SERVICES UNDER UNION AND STATES

The Constitution of India provides for the creation of All India Services that are common to the
Union and the States. The All India Services Act, 1951 provides that the Central Government
may make rules for regulating the recruitment and the conditions of service of persons appointed
to the All India Services.

 Presently only the IAS, the IPS and the IFS have been constituted as All India Services.

 The recruitment to these services is made through the Union Public Service Commission on the
basis of the annual Civil Services Examination.

 This is intended to insulate the civil service from political influences and prevent the
development of a patronage system.

 The officers of the All India Services are recruited and trained by the Union Government and
serve in the various State Governments as well as Centre.

 Please note that the Indian Revenue Service is called a Central Service instead of an All India
Service as they work only in the Central Government.

Contents

 Cadres
 Indian Administrative Service (IAS)
 Indian Forest Service (IFoS)
 Indian Police Service
 Applicability to Jammu & Kashmir
 Regulation of recruitment and conditions of the public services
 Applicability of doctrine of pleasure
 Removal and Dismissal of civil servants
 Creation of new All India Services
 Proposed All India Judicial Service
 Change in condition of service of Civil Servants
 State public service commissions
 Removal of chairman /member of the public service commission can be removed
 number of members in public service commissions
 Can chairman of UPSC join any other government job after he has ceased to hold office?
 How examinations are conducted by Public Service Commissions?
 Who submits the report of public service commission’s in parliament / assembly?
 Cadres

The officers of All India Services are organized into cadres, derived from the states they are
allotted to work in for as long as they continue to be a member of the respective Service.
Twenty-four states have their own cadre, but there are also three joint cadres: Assam-Meghalaya,
Manipur-Tripura, and Arunachal Pradesh-Goa-Mizoram-Union Territories (AGMUT). Recently
the North-Eastern Areas (Re-organisation) Amendment Bill, 2011 was approved by the cabinet
which seeks to provide for separate Cadres of All India Services for the States of Manipur and
Tripura.

 There are State Cadres and the Officers of All India Services (AIS) – Indian Administrative
Service, Indian Police Service and Indian Forest Service – are divided into State cadres.

 When on probation the All India Service (AIS) Officers are allocated to their States. Officers of
AIS working with the Central Government are posted on deputation for some years.

 The AIS officers in a State cadre may be original residents of that State but almost 2/3 of all
officers are from outside the state.

 The AIS officer cannot demand his home State cadre but may put in request for being
considered for the home cadre. Generally once allotted to a State, an officer for his whole
service stays with that State cadre.

The All India Services Act 1951 empowers the government of India to make, after consultation
with state governments, rules for the regulation of recruitment and conditions of service of the
persons appointed to an All India Service.

Indian Administrative Service (IAS)

 Controlled by the Central Government.

 Selected candidates are appointed to different state cadres and as and when required they also
move to Central Government jobs on deputation.

 IAS Officers are trained to handle government affairs. This being the main responsibility, every
civil servant is assigned to a particular office which deals with policy matters pertaining to that
area.

 The policy matters are framed, modified, interpreted in this office under the direct supervision
of the Administrative Officer in consultation with the Minister. The implementation of policies
is also done on the advice of the Officer.

 Cabinet Secretary stands at the top of the government machinery involved in Policy making
followed by Secretary/Additional Secretary, Joint Secretary, Director, Under Secretary and
Junior Scale Officers in that order.
 These appointments are filled by civil servants according to seniority in the Civil Services. In the
process of decision making, a number of officers give their views to the Minister who weighs the
matter and makes a decision considering the issue involved.

Indian Forest Service (IFoS)

India was one of the first countries in the world to introduce scientific forest management.

 1864 → British Raj established the Imperial Forest Department.

 1866 → Dietrich Brandis, a German forest officer, was appointed Inspector General of Forests.

 1867→The Imperial Forestry Service was organized subordinate to the Imperial Forest
Department.

The British colonial government also constituted provincial forest services and executive and
subordinate services similar to the forest administrative hierarchy used today. Officers appointed
from 1867 to 1885 were trained in Germany and France, and from 1885 to 1905 at Cooper’s Hill,
London, a noted professional colleges of forestry. From 1905 to 1926, the University of Oxford,
University of Cambridge, and University of Edinburgh had undertaken the task of training
Imperial Forestry Service officers.

 From 1927 to 1932, forest officers were trained at the Imperial Forest Research Institute (FRI)
at Dehradun, which had been established in 1906.

 The Indian Forest College (IFC) was established in the 1938 at Dehradun, and officers
recruited to the Superior Forest Service by the states and provinces were trained there.

 Forestry, which was managed by the federal government until then, was transferred to the
“provincial list” by the Government of India Act 1935, and recruitment to the Imperial Forestry
Service was subsequently discontinued.

 The modern Indian Forest Service was established in the year 1966, after independence, under
the All India Services Act 1951.

 The first Inspector General of Forests, Hari Singh, was instrumental in the development of the
IFS.

Indian Police Service

The Indian Police Service is responsible for internal security, public safety and law and order. In
1948, a year after India gained independence from Britain; the Imperial Police (IP) was replaced
by the Indian Police Service.

Please note that IPS is not a law enforcement agency; rather it is the body to which all senior
police officers belong regardless of the agency for whom they work.
 Applicability to Jammu & Kashmir

Article 308 says that in this part, the Expression State does not include the State of Jammu and
Kashmir. This means that provisions of Part XIV don’t apply to Jammu & Kashmir. However,
please note that we have a Jammu and Kashmir Cadre.

Regulation of recruitment and conditions of the public services

Article 309 empowers the Parliament and the state legislatures to regulate the recruitment and the
conditions of service of the persons appointed to public services and posts under the Centre and
States respectively. The original constitution provided that until such laws are made, the
president or Governor can make rules for the regulation of such matters.

Applicability of doctrine of pleasure

Doctrine of pleasure is applicable to public services. Article 310 says that the services under Part
XIV are under the pleasure of the President or Governor. This section makes it clear that a
person who is a member of a defense service or of a civil service of the Union or of an all-India
service or holds any post connected with defense or any civil post under the Union holds office
during the pleasure of the President, and every person who is a member of a civil service of a
State or holds any civil post under a State holds office during the pleasure of the Governor 3 of
the State.

Though, these officers hold the office during the pleasure of the president and Governor, yet
their dismissal is subject to a condition. This condition has been stipulated in article 310(2).
Article 310(2) says that in case of dismissal of a person from these services, the president or the
Governor may (in order to secure the services of a person having special qualifications) provide
for the payment to compensation. This compensation may be provided on the following grounds:

 If the post is abolished before expiration of the contractual period or

 If he / she is required to vacate that post for reasons not connected with misconduct on his / her
part.

Removal and Dismissal of civil servants

Article 311 makes it clear that a person who is a member of the civil service of the Union or
State can not be dismissed or removed by an authority subordinate to that by which he was
appointed. The removal is possible only after an inquiry in which he / she has been informed of
the charges against him / her and given a reasonable opportunity of being heard in respect of
those charges. However, the above rule is not applicable in the following cases:

 If the person is convicted on a criminal charge.

 If the authority empowered to remove him / her, records in written that there are satisfactory
reasons to remove him / her from service and its practically not possible to conduct such
inquiries. The decision of the authority in such cases is final.

If the Governor or President is satisfied that such inquiry is not needed in the interest of the
security.

Creation of new All India Services

Article 312 says that if the Rajya Sabha has declared by resolution supported by not less than
two-thirds of the members present and voting (Special Majority) that it is necessary or expedient
in the national interest so to do, Parliament may by law provide for the creation of one or more
all India services. Please note that this also includes an All India Judicial Service. Article 312
also makes it clear that the services known at the commencement of Indian Constitution as the
Indian Administrative Service and the Indian Police Service shall be deemed to be services
created by Parliament under this article.

Proposed All India Judicial Service

Article 312 also makes it clear that the all-India judicial service shall not include any post
inferior to that of a district judge as defined in article 236. The law providing for the creation of
the all-India judicial service aforesaid may contain such provisions for the amendment of
Chapter VI of Part VI as may be necessary for giving effect to the provisions of that law and no
such law shall be deemed to be an amendment of this Constitution for the purposes of article
368.

Change in condition of service of Civil Servants

Article 312 A makes it clear that the Parliament by law can change/ revoke the conditions of the
services with respect to the remuneration, leave and pension and the rights as respects
disciplinary matters of persons who, having been appointed to serve under the Government of
India or of a State in any service or post.

The article 312 also makes it clear that dispute on such a decision shall not be questioned in any
court.

State public service commissions

Article 315 makes provisions for Public Service Commissions for the Union and Each state. If
two or more States may agree that there shall be one Public Service Commission for that group
of States, and if a resolution to that effect is passed by the House or, where there are two Houses,
by each House of the Legislature of each of those States, Parliament may by law provide for the
appointment of a Joint State Public Service. Chairman and other members of a Public Service
Commission shall be appointed as follows:
 President → for UPSC and Joint Public Service Commission

 Governor → for state public service commission

Further, around 50% of the members of every Public Service Commission shall be persons with
minimum 10 years experience under Government of India or under the Government of a State.
A member of a Union Public Service Commission holds the office for a term of 6 years from the
date on which he enters upon his office or 65 years of age. The age for State Public Service
Commission or Joint Commission is 62 years. A member of Public service commission tenders
his / her resignation to President (in case of UPSC/JPSC) or to Governor in case of State Public
Service Commission. A member of Public Service Commission is NOT eligible for
reappointment into the same office again, once the term has expired.

Removal of chairman /member of the public service commission can be removed

Article 317 deals with the removal of the Chairman or any other member of a Public Service
Commission. Please note that thought the chairman and members of UPSC / JPSC are appointed
by President and State PSCs by Governor, the removal of chairman or any member of even a
state Public Service Commission can be done ONLY by President.

They can be removed from office by order of the President on the ground of misbehaviour after
the Supreme Court, on reference being made to it by the President, has, on inquiry held in
accordance with the procedure prescribed in that behalf under article 145, reported that the
Chairman or such other member, as the case may be, ought on any such ground to be removed.

However, this article makes it clear that President, in the case of the Union Commission or a
Joint Commission, and the Governor in the case of a State Commission, may suspend from office
the Chairman or any other member of the Commission in respect of whom a reference has been
made to the Supreme Court. This suspension would be valid until the President has passed orders
on receipt of the report of the Supreme Court on such reference.

Number of members in public service commissions

Article 318 makes it clear that the numbers of members of commission, conditions of service etc.
are determined by the President in case of UPSC and JPSC and Governor in case of State PSCs.

Can chairman of UPSC join any other government job after he has ceased to hold office?

No. Article 319 makes it clear that once the chairman of the UPSC has ceased to hold the office,
he / she shall be ineligible for further employment, either under Government of India or
Government of state.

However, the same article makes clear that Chairman of a State Public Service Commission shall
be eligible for appointment as the Chairman or any other member of the Union Public Service
Commission or as the Chairman of any other State Public Service Commission, but not for any
other employment either under the Government of India or under the Government of a State.

The members of the UPSC shall be eligible for appointment as the Chairman of the Union Public
Service Commission, or as the Chairman of a State Public Service Commission, but not for any
other employment either under the Government of India or under the Government of a State.

How examinations are conducted by Public Service Commissions?

Article 320 makes it clear that it shall be the duty of the Union and the State Public Service
Commissions to conduct examinations for appointments to the services of the Union and the
services of the State respectively.

If two or more states request the UPSC to assist the states in framing and operating schemes of
joint recruitment for any services for which candidates possessing special qualifications are
required, UPSC will help them out.

Article 321 says that an act made by Parliament or Legislature of a State may provide for the
exercise of additional functions by the Union Public Service Commission or the State Public
Service Commission.

Article 322 makes it clear that expenses of the Union or a State Public Service Commission,
including any salaries, allowances and pensions payable to or in respect of the members or staff
of the Commission, shall be charged on the Consolidated Fund of India or Consolidated Fund of
the State.

Who submits the report of public service commission’s in parliament / assembly?

Article 323 makes it clear that it will be the duty of the UPSC to present annually to the
President a report as to the work done by the Commission and on receipt of such report
the President shall cause it to be laid before each House of Parliament.

In case of state public service commission, the same will be done by the Governor.

If the case is of a Joint Public Service Commission, then the JPSC will present a report annually
to the Governor of each of the States the needs of which are served by the Joint Commission a
report as to the work done by the Commission in relation to that State.