The Constitution ofIndia

l
ects Houses [Article 88] ~ 11
ts of Ministers and Attorney-Genera1 as resp _
. . Attorney-General oflndia shall have the nght to speak ~ If
Article 88 provides that every Mm 1ster and th e . H ·oint sitting of the Houses, and si1
. h ceedings of either ouse, any J
in, and otherwise to take part m t e pro ' d b but shall not by virtue of this sb
. f h' h h y be name a mem er,
any committee of Parliament O w ic e ma
~ Ir
Article be entitled to vote. • f the either House of
d'13 t'cioate
1 in the meetmgs o
:> It follows that Attorney General Q f In can par
Parliament but shall not be entitled to vote.
QJlorum and voting in Houses of Parliament [Article 100]
. . .
~ Article 100 provides that all questions at any s1ttmg o d t'
. . .
f either House or jomt sitting of the Houses shall
other than the Speaker or
-
Defir

V,
. of votes of the members resent an vo m
be determined b a ma on (:
person acting as Chairman or Speaker. . . .
· fi · b t shall have and exerose a castmg vote in (1
:> The Chairman or Speaker shall not vote m the mt mstance, u
the case of an equality of votes.
:> Q!Jorum: The quorum to constitute a meeting of either House of Parliament shall be one-tenth of the
total number of members of the House.
Legislative procedure

Provisions as to introduction and passing of Bills [Article 107]

Article 107 provides that except Money Bills and other financial Bills, a Bill may originate in either
House of Parliament.
Atbject to the provisions of Articles 108 and 109, a Bill shall not be ~eemed_ to have been passed by ~e
/

/
r
~-~uses of Parliament unless it has been agreed to by both Houses, either without amendment or with
amendments only as are agreed to by both Houses.
A Bill pending in Parliament shall not lapse by reason of the prorogation of the Houses.
:> A Bill pending in the Council of States which has not been passed by the House of the People shall not
lapse on dissolution of the House of the People.
:> A Bill which is pending in the House of the People, or which having been passed by the House of the
People is pending in the Council of States, shall, subject to the provisions of Article 108, lapse on a
dissolution of the House of the People.

Joint sitting of both Houses [Article 108]

:> Article 108 provides that if after a Bill has been passed by one House and transmitted to the other
House and:-
(a) Bill is rejected by the other House; or

(6) Houses have finally disagreed as to the amendments to be made in the Bill·, or
(c) More than six months elapse from the date of the reception of the B'1ll b y t h e at h er H ouse wi·th out
the Bill being passed by it.

The President ma noti to the Houses his intention to summon them t o meet rn • • fior the
· sittm
· a ·amt
. . .
purpose of dehberatmg and votmg op the Bill.

400 Samarth Agrawal Books

 :> There will be no joint . . n,e Constit11tion oflndilt
Sitting ·
:> If at the joint sitt' in case of.M
• · . tng of the oney Bills
s1tt1ng, is passed by a . two 1--Iouses t he B'1II .
shall be dee me d for the
tnapurp
ori of t he total nurnber •withofsuch amen d ments, if
. any, as are agreed to in joint
:> In case of 'oint sittin th Hoses of this Constitution~e:bers of both Houses resent and votin it
e ouse will be 'cl o ave been passed by both Houses.
res1 ed over b t he S eaker of
Lok Sabha.
Money Bills
Definition of Mone B'I
. y t ls [Article llO]
:> Article 110 provid h _
with all or any of tehs t fialtla B~ll shall be deerned t b .
e o ow
(a) the imposition b 1· . 1ng matters:
° e a Mone B II ·f ·
y I t tt contains only provisions dealing
, a o 1t1on • .
b) h , rem1ss1on 1 .
( t e regulation of the b . , a teratton or regulation of any t .
I d. orrow1ng f ax,
n ta, or the amendment o money or the giving of an
undertaken by th G of the law with respect to a fi ! guarantee by the Government of
e overnment oflndia· ny manc1al obligations undertaken or to b
(c) th e custody of th C ' e
. e onsolidated Fund
m to or the withdrawal of moneys fro;ra:he Co;~ngency Fund oflndia, the payment of moneys
(d) the appropriation of m y sue und;
oneys out of the c rd
1
(e) the declaring of any d. onso ated Fund of India;
th . expen tture to be expend. tu h
e mcreasing of the amount f 1 rec arged on the Consolidated Fund ofl d'
. o any such expenditure· n ta or
(t) the .receipt of money on account of the Consolidated ' .
India or the custody or issue of h Fund of India or the public account of
State·, or sue money or the audit of the accounts of the U mon . or of a

(g) any ma~ter in.cidental to any of the matters specified in sub-clauses (a) to (f).
~ If any q uest10n anses whether a Bill is a M oney BI·u or not,
the People shall be final. the decision of the Speaker of the House of

~ :~re shall be endors~d- on every Money Bill when it is transmitted to the Council of States under
tide 109, and when It 1s presented ~o 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.

Special procedure in respect of Money Bills (Article 109)

~ A Money Bill shall not be introduced in the Rajya Sabha.
~ After a Money Bill has been passed by the Lok Sabha it shall be transmitted to the Rajya Sabha for its
recommendations. The Rajya Sabha shall within a period of fourteen days from the date of its receipt
of the Bill return the Bill to the Lok Sabha with its recommendations and the Lok Sabha may there-
upon either accept or reject all or any of the recommendations of the Rajya Sabha.
~ If the Lok Sabha accepts any of the recommendations of the Rajya, the Money Bill shall be deemed to
have been passed by both Houses with the amendments recommended by the Rajya Sabha and ac-

cepted by the Lok Sabha.

~ If the Lok Sabha does not accept any of the recommendations of the Rajya Sabha, the Money Bill shall
be deemed to have been passed by both Houses in the form in which it was passed by the Lok Sabha
ts recommended by the Rajya Sabha.
wit h out any o f th e amen d me n
Samarth Agrawal Books 401
 The Comtit1111on ofIndia .
. S bha for its recommendatJ.ons
tted to the RaJya a
~ If a Money Bill passed by the Lok Sabha and tr~nsm1. d f fourteen days. it shall be deemed to have
is not returned to the Lok Sabha with'.n t~e sa1fdhper10d :eriod in the form in which it was passed by
been passed by both Houses at the expuat10n o t e sa1 -
the Lok Sabha.

Assent to Bills [Article lll] f p liament it shall be presented

·11 h been assed by the Houses o ar ,
~ Article 111 provides that when a B1 as _P . .
to the President, and the President has following options.-
Rest
(1) Assents to the Bill, or --i
(2) Withholds assent. . h H with a request to reconsider the
~ j
{3) He may also return the Bill if it is not a Money Bill to t e ouses

Bill. .d th Bill accordingly and if the Bill is passed again Cou

. . d th Houses shall recons1 er e , .d hall
~ When a Bill 1s so returne , e d to the President for assent, the Pres1 ent _s_
by the Houses with or without amendment and presente
not withhold assent.
Annual financial statement (Article 112] .
~ Article 112 provides that the President shall in respect of every financial year c~~se to ~e:1~before
both the Houses of Parliament a statement of the estimated receipts a~d expen i~re o e overn-
ment of India for that year, in this Part referred to as the 'annual financial statement.
~ It is also popularly called 'The Budget'.

Appropriation Bills (Article 114]

~ Article 114 provides that soon after the grants under Article 113 have been ma~e by the Lok Sabh~,
there shall be introduced a Bill to provide for the appropriation out of the Consolidated Fund oflnd1a
of all moneys required to meet
(a) Grants so made by the House of the People; and
(b) Expenditure charged on the Consolidated Fund oflndia but not exceeding in any case the amount
shown in the statement previously laid before Parliament.

Votes on account, votes of credit and exceptional grants [Article 116]

~ Article 116 provides that the Lok Sabha shall have power:-
(a) to make any grant in advance in respect of the estimated expenditure for a part of any financial
year pending the completion of the procedure prescribed in Article 113 for the voting of such
-
grant and the passing of the law in accordance with the provisions of Article 114 in relation to that ...
expenditure;
(b) to make a grant for meeting an unexpected demand upon the resources oflndia when on account ~
.
of the magnitude or the indefinite character of the service the demand cannot be stated with the
details ordinarily given in an annual financial statement;
(c) to make an exceptional grant which forms no part of the current service of any financial year; and 1

Parliament shall have power to authorise by law the withdrawal of moneys from the Consolidated
Fund oflndia for the purposes for which the said grants are made.
'1
402 Samarth Agrawal Books
 Tht Co nstu11tion
· ofIndia

J.,anguage to be used . p 2,_ther matters

- 1n a r rlament [
~ Article 120 provid th ----.:.:.:. Article 120]
. es at business in p
~ The Chairman of th arliament h 11 b
member who cann e Council of States s a e transacted m Hmd1 or in English.
ot adequat I or Speaker of h H
mother-tongue. e y express himself . H. t e . ouse of the People may permit any
m md1 or m English dd
Restriction on discu . . to a ress the House in his
- r
ss1on in Pa r iament [Ar . 1
~ Article 121 provides th . tic e 121]
le
at no dis ·
ud e of the Su rem C cussion shall take pl . p .
e ourt or of H" - ace m arhament with
for presenting an add a I h Court in th d. h respect to the conduct of any
ress to th e president
. pra . e 1sc ar e of h is
· d utles
· except upon a motion
n Courts not to inquire i t ymg for the removal of the Jud
n o proceedings of p r ge.
~ Article 122 provides th th . . ar lament [Article 122]
h at e validity of an . .
t e ground of any alleged irregul . f y proceedmgs m Parliament shall not be call d . .
N ffi - anty o procedure e m question on
~ o o icer or Member of p 1· . .
I . ar lament m who
regu atmg procedure or the conduct ofb . m powers are vested by or under this Constitution cor
t th · · cl . • usmess or fi • . . r,
o e JUns 1ct1on of any court . ' or mamtammg order, in Parliament shall be b"
m respect of the exercise by him of those powers. su Ject

I ~
THE STATE EXECUTIVE
[Part VI, Articles 153-167]

Articles 153 to 167 in Part VI o f t h e Const1tut1on

. . deal with the State Executive.

Governor

Advocate General of the State State Executive Chief Minister

Council of Ministers

Governor

~ Article 153 provides that there shall be a Governor for each State. Same person can be appointed as
Governor for two or more States.
~ Article 154 provides that the executive power of State shall be vested in the Governor.
~ The Governor is the chief executive head of the State. But, like the President, he is a nominal executive
head (titular or constitutional head). The Governor also acts as an agent of the central government.

Therefore, the office of governor has a dual role.

Appointment of Governor [Article 155]

~ Article 155 The Governor of a State shall be appointed by the President by warrant under his hand
and seal. 403
Samarth Agrawal Books
 Tbe Constit11tion ofIndia

:> The Governor is neither directly elected by the people nor indirectly elected by a specially constituted
electoral college as is the case with the President.
=> In Hargovind v. Raghukul, AIR 1979 SC 1109, Supreme Court held that the office of Governor of
r
a State is not an employment under the Central government. It is an independent constitutional office
and is not under the control of or subordinate to the Central government.

Qualifications for appointment as Governor [Article 157]

~ Article 157 provides that no person shall be eligible for appointment as Governor unless he is a citizen
of India and has completed the age of thirty-five years.

Term of office of Governor [Article 156]

~ Joint reading of Article 156(1) and 156(3) provides that Governor holds office for a term of five
years from the date on which he enters upon his office. However, this term of five years is subject to
the pleasure of the President.
~ Resignation: The Governor may, by writing under his hand addressed to the President, resign his
office.
~ Governor shall, notwithstanding the expiration of his term, continue to hold office until his successor
enters upon his office.
~ The Constitution does not lay down any grounds upon which a Governor may be removed by the
President

Conditions of Governor's office [Article 158]

~ Article 158 provides that the Governor shall not be a member of either House of Parliament or of a
House of the Legislature of any State specified in the First Schedule.
~ If a member of either House of Parliament or of a House of the Legislature of any such State be
appointed Governor, he shall be deemed to have vacated his seat in that House on the date on which
he enters upon his office as Governor.

~ The Governor shall not hold any other office of profit.

~ The emoluments and allowances of the Governor shall not be diminished during his term of office.

Oath or affirmation by the Governor [Article 159)

~ Article 159 provides that before entering upon his office, the Governor has to make and subscribe to
an oath or affirmation. In his oath, the Governor swears:-

(a) to faithfully execute the office;

(b) to preserve, protect and defend the Constitution and the law; and

(c) to devote himself to the service and well-being of the people of the state.

:> The oath of office to the governor is administered by the Chief Justice of the concerned State High
Court and in his absence, the senior-most Judge of that court available.

404 Samarth Agrawal Books

 power of Governor t o grant pa d 7be Co11Stit11tio,,
.
oflndill
If :> Article 161 provid r ons, etc. [Arf I
. . es that the ic c 161]
e res ites or remiss·ions of . Govern or of a St
convicted of any offence aga.un1shme nt or to suspe ate dshall have . the power to grant pardons, rg,rieyes.
extends . Inst any 1aw relating t n • remit or commute the sentence of any person
. o a matter to whi h h .
Ordmance making p c t e executive power of the State
ower of th
"- . 1 e Govern [ .
:> ru tic e 213 provide c --- or Article 213]
s ior the
ture. ower of Gover
- ----=~c!!nL\,!o~r1:toQ_J;~roQJmt!ll!uJ!l~a!_!te;__,!O~d~'lfil.ng~lY!iing~m!LQ:f..li~~
:> This provision is ak' r mances durin recess of Le ·sla-
m to the power of P .
:> However, the power of Governer d 'ff,. resident . to promul gate Ordmances . under Article 123
Th 1 ers with h ·
► e Governor shall not, wit . h out inst . t at of President in the foliowmg . aspects:-
if . ructions from the p resi.d ent,
promulgate any such Ordinance
(a) A B111 containing th e same pr · •
sanctio f
n o t h e President for ovmons
the int would
d . und. er t h'is Constltution
• .
have required the previous
(b) He would have d d . ro uction mto the Legislature; or .
. eeme it ne cessary to res B' 11
consideration of the President; or erve a i containing the same provisions for the

(c) ~ A_ct of the Legislature of the State containi ..

st1tut1on have been invalid u 1 . ng the same prov1S1ons would under this Con-
. h n ess, havmg been reserv d f, h · ·
It ad received the assent f th P 'd e or t e consideration of the President'
0 e res1 ent. '

Chief Minister and the Council of Ministers

~ The Governor
. is the nominal executive authority and the ch·ie fM.imster
. . th e real executive
is . authority
executive.
~ The Governor is the head of the State while the Chief Minister is the head of the Government.
~ The position of the Chief Minister at the State level is analogous to the position of Prime Minister at the
Centre.

Appointment of Chief Minister and Council of Ministers

~ Article 164 provides that the Chief Minister shall be appointed by the Governor and the other Minis-
ters shall be appointed by the Governor on the advice of the Chief Minister.
~ In the States of Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha, there shall be a Minister in
charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and

backward classes or any other work.

3
~ouncil of Ministers to aid and advise Governor [Article 16 ]
~ Art" I ·cl th th
hall be a Council of Ministers with the Chief Minister at the head to aid
1c e 163 prov1 es ere sat . . . .
. · h rcise of his functions, except m so far as he is by or under this
an cl advise the Governor tn t e exe . . . .
. . . . h ' functions or any of them m his discretion.
Constitut10n reqmred to exercise is
Saroarth Agrawal Books 405
 The Constitution efIndia

THE STATE LEGISLATURE

[Part VI, Articles 168-212]
the organisatio n. comp osition. durati
:) Articles 168 to 212 in Part VI of the Constitution deal with ~
officers. procedures etc. of the State Legislature.
Constitution of Legislatur es in States [Article 168]
lature which shall consist of the r_
:) Article 168 provides that for every State there shall be a Legis ~er.
nor, and-
taka. Telangana and Uttar Prade.m, two
(a) In the States of Andhra Pradesh. Bihar, Maharashtra, Karna
Houses;
(b) In other States, one House.
shall be known as the Legislative Council
:> Where there are two Houses of the Legislature of a State, one
is only one House, it shall be kno wn~
and the other as the Legislative Assem bly, and where there
Legislative Assembly.

Abol ition or creat ion of Legislative Coun cils in States [Article 169]
de for the abolition or creation of the Legisla-
:> Article 169 provi des that Parliament may by law provi
State passes a resolution to that effect by a
tive Coun cil of a State if the Legislative Assembly of the
a majority of not less than two-thirds of~
majority of the total membersh ip of the Assembly and by
members of the Assembly present and voting.
170]
Com posit ion of the Legislative Assemblies [Article
each State shall consist of not more than five
:> Article 170 provi des that the Legislative Assembly of ituencies in
t election from territ orial const
hund red. and not less th an sixty mem bers chose n by direc
the State.

Com posi tion of the Legislative Cou ncils [Article 171]

in the Legislative Coun cil of a State having
:> Article 171 provides that the total numb er of members Assembly
er of mem bers in the Legislative
such a Coun cil shall not exceed one third of the total numb
of that State.
cil of a State shall in no case be less than forty.
:> The total numb er of mem bers in the Legislative Coun
cil of a State
:> Of the total numb er of mem bers of the Legislative Coun
rates consi sting of mem bers of municipali-
(a) as nearl y as may be, one-third shall be elected by electo
the State as Parli amen t may by law specify;
ties, distri ct board s and such other local autho rities in
electorates consi sting of persons residing in the
(b) as nearl y as may be, one-twelft h shall be elected by
of any unive rsity in the rerrit ory oflnd ia or
State who have been for at least three years graduates
ficati ons prescribed by or unde r any law
have been for at least three years in possession of quali
of any such university;
made by Parli amen t as equiv alent to that of a gradu ate
by electorates consi sting of perso ns who have
(c) as nearl y as may be, one-twel fth shall be elected
educa tiona l instit ution s withi n the State, not
been for at least three years engaged in teach ing in such
be presc ribed by or unde r any law made
lower in stand ard than that of a secon dary schoo l, as may
by Parlia ment ;

406 Samarth Agrawal Books

 (d) as nearly as may be o . The Constitution ofIndia

~
State from amongs~ p::::::~~hall be elected by the me b
(e) the remainder shall be no .
The memb
o are not members of
mmated by the G
t: ;rs
of the Legislative Assembly of th
e ssembly; e
ers to be nom· d overnor
· mate b h ·
practical experience in respect ofysuch
t e Governor
matters as shall . of persons h avmg
consist
the followi . special knowledge or
ng, namely:-

Literature
Special knowledge Science
or Art
Practical experience
Co-o peratlve
. movement
Social service

~ . Duration of State Legtslatures

. [Article 172]

contmue for five years from the date appoint d ~ . y ~ every _State, unless sooner dissolved shall
..,Article
. 172 provides th at every Legislative
. . Assembl f
:, The said · d e or us mt meeung '
per10 may, while a Proclamation of Erner e . . .
by law for a period not exceedin" o . g ncy is m operation, be extended by Parliament
. =
s,x months afitec the Proclamation h
ne year at a time and t
d
d. .
no exten mg m any me beyond a peciod of
. . as cease to operate.
:> The Leg1slat1ve no e sub'1ect to dissolution b t 1
e membecsCouncil
thereofofshall
a State
refshall t b . ' u as near Y as possible one-third
d . .. ire as soon as ma be on the ex iration of eve second m in
0 f th
accor a nee with the provmons made in that behalf by Parliament by law.

Q!ialification for membership of the State Legislature [Article 173]

:> Article 173 provides that a person shall not be qualified to be chosen to fill a seat in the Legislature of

a State unless he
(a) ls a citizen oflndia, and makes and subscribes before some person authorised in that behalf by the
Elect10n Comm1ss10n an oath or affirmation according to the form set out for the purpose in the

Third Schedule;
(b) ls, in theease of a seat in the Legislative Assembly, not less than twenty-fiveyears of ags and, in the
case of a seat in the Legislative Council, not less than thirty years of a~ and
(c) Possesses such other qualifications as may be prescribed in that behalf by or under any law made by

Parliament.
The Speaker and Deputy Speaker of the Legislative Assembly [Article 178]

:, Article 178 provides that every Legislative Assembly of a State shall, as soon as may be, choose two
members of the Assembly to be respectively fu)eaker and Deputy Speaker.
The Chairman and Deputy Chairman of the Legislative Council [Article 182]
:, Article 182 provides that the Legislative Council of every State having such Council shall, ~s soon as
may be, choose two members of the Council to be respectively Chairman and Deputy Chauma1>- 407

Sainarth Agrawal Books

 1
!,11/ I 1/rlllJ/ 1111, / /11 l~/1 t//1 1flt l1J ll1 tJt1• fl
II /1f 111/l• 1/ l1/ f/11< / 111' /l /•11 / II I/ 111
11/ I 1/H 111 ,,.1 II 1! 1 / 1(1 /1/l!J1/ I
,, , I /111 I/ I j/1 1,/ /111/1
1
I 1111/111, 1iJ 1•pffllfl11Y, /1/1/11///llill•III 11/ )11 fyt •
,,,,,, / II j 11 • • ,11 I 1111 11,11, 11/1 1 jl ,,,,,,, , If ti t '"'" '111 ///l' lj Ill
j 1 ,~,., 1 ,,,, ,,, I, I 1,11 11l1 ,111111
1
Iii 11111,,1,,11 ,,t 1111/f,1, ft,111/,,,/1 /,,111,I /11 t/J,111 l'rll / , ~W~,tl,
1
1 1 1 1
111111 1111 "' /111111,d,//111/ VI 11,11 •1d11111,11 II ,/111 1 11 ,1111 1111 ,11 1111" 11" 11 1
w I, I 1111 • 11l11111, 11
\
\ a
f /f l ' , 1111111 f/11h1111d/11,/h1 , /·ll' /11111 1,1 1!1 11, (,1/111f,,111111J1111 !" /111lv, 1111111/111lw11r11,,f,,11l'fJ l1"
11
11111, 111 1 , 111111 11111

fll lj!flllliilllll ill 11/ 111d1

,I v11l1 J/1 1 iq,11111111111 '11//l/111/i/1111111'1 1 1 ,
11
•
I l,1 111• 111l ti '
\
\
, ,,. ,lo '' ""' ,d l'" , 1111111111 1111dd 111,l y 111 , I, di, 11 v,ri l 1111 II,, v.11,11111h 1,I "''"" jfl(I ,,, I, 1,r,I ,,, 1 111 cl
t I 11 II , , 111 ~11 Ii I II 1111 i. I II , I I, 1 I dI I I~IIll I I I I \ I' I 1/I/ 1/11 I t 1~• I~1v, ,ii 1, 111 [I II I'' J t 11 ,11 '/ I,, ii, r; ,•rr 11, 1,,, 111 111

lf lf'idlillliflll ,., 111il111 . 1

I! 111 ,!t ( l,h, 1, 11, j flfl ,r.,,,,,l \ rn11/1f/,111 I //11/1111111/111//,1,(l'l'IIJl\ ',CC l\l\l,(,J/111k111r11111111J.'"
/H \\ I i h 1 ',Iii 11 • III I I 1111 I I 1111 II I d1 ii ,I II ii I I I~11 II I I II ,\ /' I 1///1/11 \ I I_, 1111 1 111 II I \ 11 Id II 1,I I 111 I\ 1r 111,1 I I l'I ~
11
1111111 111!11111111111d !11111 11, 111 \ 1q1111111 1 111111 ,111,I 11 1~11 I ,,1111 ~ 1111 < l,11 I 11""', 111 l111\1,, ~ '111 \d \i,,vc

1'11111 II I
I i, 111 I ~II 111111 1111, 11\1 1111,1 111 Ill II 111 d 111 1111 111111111111 1d t\11 ( \111•1 lu.1111• w\11t1 1 ,. 1111111 rd ,d\rl
I d,1111 1111, 1 \111 111111111, 11111 1111\\11 ~1111111 11111~1 111il11,1·~ ,d t\11 \1q111 •1111· ( 111111

HIit
 r,,, Conr111111ion ofIndia The selection s
REME COURT :, should only a
UNION JUDICIARY-THE SUP 7)
stances and fo
[Part V, Articles 124-14 .
. . jurisd1ct10n, powers. be appointed.
I . h the organisauon.
. p V f the Constitution dea wit The court hcl
:, Articles 124 to 147 m art o :>
f h Supreme Court. :, In re Presid
procedures etc. 0 t e [A-tide 124]
. o f S uprem e Court ru consultation
.
Establishment an
d constitution
. .. g of Chief Justice of ~-
~ e
,l•h h
Articl 124(1) 'provides tha'\:t ere s a
JI be
I'
a Supreme 'b
t may preSCrl e,
9
Cour t of Ind!_ cons1stm
.
:> The sole ind·
I
:, With regard
India and as many other judges as the Par iamen . f 7 other judges and a Chief Justlce of
. . n there were maximum o . . Chief Justic
~ At the commencement ofConsututJo . . I di Chief Justice oflndia is 34. The collegi
· number of Judges me u ng ·
India. At present the maximum A 2019 has been passed which has :, If two Judg
f Jud es) Amendment ct, . d' )
~ T h e Supreme Court (Number o g 34 (including the Chieflust1ce ofln I,! :> In regard t~
.
increase d the strength of Supreme Court Judges from 31 to
India and j

~ 1
Appointment of Judges

.
·des that every Judge of the Supreme Court
- - shall be aePointed by the President.
:> :1:~r:::~
~ '~ -124(21Jprov1 . b the President with the consultation of such judges of Supreme Court
:> Su p rem e
tion p roce
:, The Ch1efJust1ce is appointed Y . · f ther judges the President shall always
or High Court as he may deem necessary. In appointment o o - ----,
consult the ChiefJustice oflndia.
/ National j
Controversy regarding appointment of judges \ D 99 th rl
I ~
Article 124 uses the term 'consult'. Earlier, it was interpreted that President is not bound to act in
\ D Acco~
accordance with such consultation.
I a p_p~ j
~ n1 Union of India v. Sankalchand Seth, AIR 1977 SC 2328, the Supreme Court held that 'consulta- I rrussu
J ~on' means full and effective consultation. It does not mean concurrence and the President is not bound I D How~
)fsuch consultation. I sc,s
J In S.P. Gupta v. Union ofIndia, AIR 1982 SC 149, (also known as 1ujudges case orJudges transfer case) the I
I
2014
again
Supreme Court agreed with the opinion in Sankalchand's case. This meant that executive had supremacy
in appointment of judges.
I □ The ,
I
I Not1
~The decision of government could only be challenged on the grounds of ma/a fides or based on irrel-
'\.. _ _ hen~
evant considerations. In effect decision in S.P. Gupta's case gave absolute primacy to the government in
appointment of judges.

~ In S.C. Advocates on Record Association v. Union of India, (1993) 4 SCC 441, (also known as z.i :> Article
fudges case) Supreme Court overruled the decision in S.P. Gupta 's case. The court held that in the matters
0
--W" Per
~ appointment of judges of Supreme Court and High Courts the Chief Justice oflndia should have
pnmacy. ~ He
sue
~ Greatest significance should be attached to the opinion of the Chi· fJ .; h' h · c d f ~He
e usuce w 1c 1s 1orme a ter
taking into account the views of two senior-most Judges of the Supreme Court. sue

408
Samarth Agrawal Books
- -
 • 7bt Const1·, ·
~ The select10n should be m d
., a e as a re I
"''°" eflntlia
5
hould only act
d fi as a ch k su
ec on exercise O f t of 12!rti cipauvc
.
· • consultative process. In such process cxecuuve
stances an
. d or strong a d
n cogent reas 0 power
h by Ch 1 fJ • · 1 ·
c ustice of India. Only in aceptiona carcum-
be appomte . ns t e nam es recommended by Chief . Justu:e . may not
. of India
:J The court held that the appo·
intment of Ch fJ .
:J In re Presidential referen AI ie UStlce oflndia should be made on the basis of seniority.
· ce, R 1999 SC 1 (
consu 1ta tton process to be ado t d b ' also known as J ''Judges case) Supreme Court held that
· d-
~ · of India
P e Y the Chief) ustice . consultation
. requtres . of
. of plurality
of
:J The sole individual opin ion of Ch ' f .
ie Justice do •
:J With regard to the appo· t es not constitute consultation.
>f . . - m ment of Supreme C
Chief Justice of Ind ia should l ourt Judge, and transfer of a High Court Judge the
. consu t a colle1tium 0 f fi .
The col 1egmms m ust include su Ch ' our semormost Judges of the Supreme Court.
. ccessor ief Justice oflndia.
s :J If two Judges give adverse opinion th th C . .
. en e hiefJust:J.ce should not send the opinion to the government.
:J In regar d to th e appointment of H ' h C
India and two seniormost Judge. ig ourt Judge the collegium should consist of Chief Justice of

:> The recommendations of the colle iu h

·th the opinion f Ch• fJ . g ms_ s ould be based on consensus and unless it is in conformity
WI
O t
ie US ice of 1nd ia, recommendation should not be made.

:> Supreme
. Court
. made it
. _ clear tha t r ecommen d auon •
· for appomtment without following the consulta-
tion process 1s not bmdmg on the government.

( National Judicial App~~~~ Co-;~~~ [9~ Co~stiMi;n~e~d-;.~c2014],

I □ 99 th Constitution Amendment, 2014 amended Articles 124(2). 127 and 128. It inserted Articles ',
I 124A 124B and 124C. I
/ □ According to new provision under Article 124(2) every Judge of the Supreme Court is to be \
I appointed by the President o n the recommendation of National Judicial Appointments Com- I
I m1ss10n. I
/ □ However, In Supreme Court Advocates-on-Record A.ssodation v. Union ofIndia. (2015) I
/ SC, Supreme Court declared both the 99th Constitutional Amendment as well as the NJAC Act, I
/ 2014 as unconstitutional and void. Consequently, the earlier collegium system became operative \
I agam. I
I D The court opined that the NJAC would affect the ind ependence of the judiciary. \
/ Note: Sina the provisions relating to N]AC have been dalared unamstitutional and it is no longer a good law \
I\ henr,e detailed description ofthe same.!!._not . he.!'!_· _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
. give'!_ /
-----------
Qualification of Supreme Court Judges

~ Article 124(3) provides the following qualifications:-

--W" Person should be a citizen oflndia; . .
th.Y fi fi Judge of a High Court or two or more High Courts m
-'<?I He has been atleast or 1ve years a
success10n; ·
, ./ d te of a High Court or of two or more such courts m
•--tCJ He has been for atleast 10 years an a voca
succession; . .
·d t a distinguished iunst.
~ He is, in the opinion of the Presi en '
409
- Samarth Agrawal Books
 77,e ConstitNlion ofl ndiiz

/2
@at'?) ~
fS eme Court shall, before he
= Article 124(6) provides thatk everyd person app
ointed to be a Judge o upr
bscribe before c res1 n
. d.
"d t or some other crson a omte in
. dS h d 1
enters upon his office, a e an su . din to the form set out in Thu c c u c. righ
that behalf by him, an oath or affirmation accor g
~ Tenure, Resignation and Removal of Judges .

= Article 124(2) provides that a Judge of Supreme Cour t holds the office until he attains the age of 65
mil· b d · d by such authority and in such manner as
= The age of aJudge of the Supreme Court shal 1 e etermme
the Parliament may by law provide. . d dd d
:> Th
= Resignation: AJudge ofSupreme Court may resign
. h. ffi b writing under his ban
1s o 1cc Y
a resse to
(1)
the President. [Article 124(2Xa)J

~ Removal of ud es . .
/ ~cle 124(2Xb) provides that a Judge may be removed from his office in the manner provtded 1n
', _}rrlcle 124(4). (2
/ Article 124(4) provides that procedure for removal of a Supreme. Court Judge. It lays down that the
Judge of the Supreme Court shall be removed by an order of the President only on the ground of
roved misbehavior and inca aci .
Procedure: The order of the President can only be passed when it has been addressed to both Houses
Jurisd
of Parliament in the same session. The address must be supported by a majority of total membership
of that House and also by majority of not less than two-thirds of the members of that House present
and voting.

= Article 124(5) further provides that Parliament may by law regulate the procedure for the presentation
/1
of an address and for the investigation and proof of the misbehavior or incapacity of a Judge. J
~
= Parliament has passed Judges (Inquiry) Act, 1968, which lays down the procedure for removal of
the Supreme Court and High Court Judge.

s
Jurisdiction of the Supreme Court
r
Original Jurisdiction I
Appellate Jurisdiction I
[Article 131) Advisory Jurisdiction
[Articles 132-134 and 136)

r I
[Article 143]
-
Juri:
:>
Jurisdiction in I
Jurisdiction in
constitutional Jurisdiction in
civil matters Special Leave
matters criminal to Appeal
(Article 133]
[Article 132] matters
or SLP
[Article 134)
[Article 136]
410
Samarth Agrawal Books
 ~Corrs,;
Ori inat . ."'tio,, ofl,,du,

/2,
11
j\rticle 131 .provides th a t t h e Su ur d1ction Art·tcIe 131
.
g matters 1f the disput e involves prcrnc Court 5 hall have th . .
right depends. any qucstio f e exclus1Vc onginal jurisdiction in the follow-
no laworf: .
.Jff) Disputes be twee act on which the existence or extent of a legal
/ ' n Governrne of Ind·
. b nt
/ (b) D1sputes etween G overnment 1a and one or more States· or
other
. States
b on the h
ot er; or of India and any states or States' on one side and one or more

7
/q D 1sputes etween tw or mo s° c"'sc. -3) 5,-\c:;;...-\C oJ=
t-<-c..o"'f'nc..;to~"" vc;
. re~~
;-'T'\1Url~
· . .
Exclusion of original )Unsd1ction ·
- .Q n dJ"'-..

:, The original jurisdiction of S

. upreme Court d
(1) Disputes arising out of a oes not extend to the following matters·-
. ny treaty ag ·
which
. was executed
. b erore
c the com
' reement, covenant• engagement, sanad. or similar instrument
. or which prov1·d es that the · mencement
tton . d' . · · and continues to be in opera-
of th e c onSt1tut1on
· to Article 131] JUns ictton of the Supreme Court shall not extend to such a
dispute· [proVIso

(2) Parliament may by law exclud the 1unsd1ction

. . . .
.
of t h e Supreme Court .m disputes
. . . or controle fth
th e use, d 1stnbut1on with respect to
· 0 ·
e water of any mter-State river or river valley. [Article 262(2)1

·
Appellate Jur·is d"ictlon [Articles 132-134 and 136]

. 1e 132]
Jurisdiction in constitutional matte rs [Ar tic

. to the Supreme C t f
Article 132 provides that an appeal sh a111 te . d d
order of a High Court in th . . our rom any ]U gment. ecree or final
e terntory oflnd1a wh th 10 . . ·1 . .
igh Court cert'fi d A_ • ' e er a civt • cnmmal or other proceeding if the
.H . fth' .
I ies un er rut1cle 134A th at t h e case mvolves a substantial question of law as to the
mterpretaaon o 1s Constitution.

Juri .iction in civil matters [Article 133]

.
Article. 133 .provides r
that an appe a1s h a 11 1e to t h e Supreme Cout from any 1udgment.
· decree or final
order 10 a civil proceedings of a High Court in the territory of India if the High Court certifies under
Article 134-A that:- ·,
(a) the case involves a substantial question oflaw of general importance; and
(b) in the opinion of the High Court such question needs to be decided by the Supreme Court.

Jurisdiction in criminal matters [Article 134]

~ Article 134 provides that an appeal shall lie to the Supreme Court from any judgment. final order or
sentence in a criminal proceeding of a High Court in the territory oflndia 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; or

(c) certifies under Article 134-A that the case is a fit one for appeal to the Supreme Court.
411
Samarth Agrawal Books
 The Constit11tion ofIndia

1361 /-
Appea I or SLP [Article . • n grant spec1·al leave to appeal frorn
Special 1,eave to Court may in its d1scret10 ' assed or made b y ~ 1
- Art" I 136 provides that Supreme ce or order in any case or matter p
~ JC e dctcrminatJOn, sen ten , I
. dgment, decree, d. . d d I
ill! . I. tic territory ofln IB·
or tnbuna in 1 .
. t . nable to any JU gment, ecrcc
I shall not be ma10 a1 d , I 0 ~
d that special leave to appca . . I nstituted by or un er a ~ I toJ
~ Article 136(2) prov1 es d ade by any court or tnbuna co I
determination, sentence or passe or m I o Ad
I
relating to armed forces .

.
. d' •
Advisory Juns 1ct1on [Article 143)

ears to the President that:-

I
I
I
0
:J
.I
sit
prov1des that if at any ume It app .
or is likely to anse, and . .
I
I □
sJI
question oflaw or fact has ansen . . that it is expedient to obtain the SC
f h public importance I 7tJ
(b2 e question is of such nature and o_ sue c the question for the Advisory opinion of the I
n it he may rerer d . . .
opinion of the Supreme Court upo • . . h . k fit report to the Presi ent its opm1on. I □ p
fter such hearmg as it t m s J • I
Court and the Court may a . SC 956 has held that the court is not hound
1 Education Bilf, AIR 1958 • I
~ Supreme Court m re Kera a .
ade to it by the President. I
to answer a reference m . c h tters which are excluded from the proviso I
'd that if the President rerers sue ma .
~ Article 143(2) proVJ es . . . f h S reme Court then the court will be bound to give I
of Article 131 for the advisory opm10n o t e up I D
opinion on it I
I
Supreme Court to be Court of Record [Article 129] I D
~ Article ~
• 129 prov1·d es th at supreme Court shall be a court of record and shall have powers of such a
I
I
court including the power to punish for its contem,Et. I
~ A court of record is a court whose records are admitted to be of evidentiary value and they are not I □
questioned when they are produced before the court. Power to punish for contempt necessarily fol- I
lows from the postion of court of record. I
I
~ In Rajeshwar Singh v. Subra ta Roy Sahara., AIR 2014 SC 476, Supreme Court held that jurisdiction I
of Supreme Court under Article 129 is independent of the provisons of Contempt of Court Act, 1971. I
~ In DelhiJudicial Service Association v. State of Gujarat, (1991) 4 SCC 406, Supreme Court held I
I
that under Article 129 the Supreme Court has power to punish a person for the contempt of itself as
well as its subordinate courts. '--

Law declared by Supreme Court to be binding on all courts [Article 141]

~ 141
Article_ provides that the law declared by the Supreme Court shall be binding on all courts within
the terntory oflndia.

~ In Bengal Immunity v State of Bih AIR 19 S ,

. . · ar, 55 C 661, Supreme Court held that Supreme Court
can depart fjram its previous decisions Th . ' 11
t S · e expression a courts within the territory oflndia' means all
cour s except upreme Court. Therefore Su C .
case it may reverse it. . ' preme ourt Is not bound by its decision and in proper

412
Samarth Agrawal Books
-
 - The Consfitr,tio,, o'/,rd,,,
/ - - - - - - -
-=- ~;u
1.1 ! --- --
lbeoa---
--------- 7

11 □ Salaries and aJJo- .-..ances: Article

I and other entitlements of a Suprern125Co Pr<>vides that the aalanea ldowa J
•
I □ Actin g ChiefJustic . A . e Utt Judge shall be determin«f ti, tfw Pit ilmfflt air•~ ; I
1

I f, e. rtaclc 126 pr 'd 1 g ~ I

to per orrn the functions of Chief ov_1 t~ tha_t tht
President may appoin t a c t u
I I
Justice in his absence.
I □ Ad hoc) u dges. Article 127 provid f;
. . .
.
to fulfill the quoru m of t h e Judges es or appointment of ad hoc judges in the Supreme Court I
I to h O Id . I
ue session of court.
I □ Atten dance of r et'ared J udges: Article 128or contin . I
II . . provid es for attend ance of retired Judges at the I
s1ttmgs of the Supreme Court.
I
/ D Seat of Supre me Court · Ar . 1 Delhi or in I
e ~JO provides that the Suprem e Court shall sit in
I some other lace as the ~h - tfacustice · h th
te oflnd ·
ta ma wit ea roval of Presid ent from time to I
I time appoi nt.
I
I □ Powe r of review: Articl e 137 rov·1d th .
ions of any law made by the I
/ Parlia ment or a l d p es at sub1ect to the provis I
ny ru e ma e under Art'tc1e 145 , t h e Supreme Court shall have power to review I
/ · d d b ·
any JU gmen t prono unced or order
I A • ti (2020 ma e Y lt. In Kanta ru Rajee varu v. Youn g Lawy ers
that the court can I
Viso / ;soci ast ~n, ) Supre me Court while hearing Sabrimala reference held I
review jurisdi ction.
/ re er que ions of law to a larger bench while exercising I
lVe fS . .
D Enlar geme nt of jurisdict' ment may I
/ ton o uprem e Court : Articl e 138 provides that Parlia
with respect to matters in Union List,
I by law confe r furthe r jurisd iction to the Supreme Court ~
of State may agree to confer.
! matte rs as the Gove rnmen t of India or Gover nment
other purpo se: Articl e 139 provides that 1
/ D Co~f erme nt of powe r to issue writs for any
to issue writs for the purpose other 1
a Parlia ment may by law confe r on Supre me Court power \
/ than that mentioned in A<ticld2(2).
es that Supreme Court may pass such I
Ot / D Powe r to do comp lete justic e: Articl e 142 provid
complete justice in any matter •pendi ng I
1- / decre e or make such orders as is necessary for doing
(2020) 1 SCC 1 held that the phrase 'is I
I before it. Supre me Court in M. Siddi q v. Suresh Das,
tude and encompasses a power of equity I
/ neces sary for doing comp lete justice' is of wide ampli
uate to produ ce outcome. I
I which is emplo yed wstric t applic ation oflaw is inadeq I
I □ Rules of the court: Article 145 provides that Supre me Court may from time to time, with the \
generally the practice and proced ure of the I
/ appro val of the Presid ent, make rules for regula ting
f _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ./
\. _ _ court. _ _ _ _ _ _ _ _ _ _ _ _ _

THE STATE JUDICIARY- HIGH COURTS

IPart VI, Articles 214-232]
furthe r provid es that
~ Article 214 rov at there shall be a Hi h Cour t for each State. Article
two or more
a comm on High Court for two or more tates or for
.
P arIiame nt may b y Iaw es t a bli' sh
States and a Unio n Territ ory.
and shall have all the powers of
' h Cour
· le 215 prov1·d es t h a t ~ H 1g . t shall be a court _ . record
of r
~ Artic
mpt of itself.
such a court inclu ding the powe r to pums h for conte
our~t~sh~a~ll~c~o~n~si~st~o~f~a~C.~h~i=ef~l~
1~·~h~C~~ ·1:!
• u~st~ic~e:...!:a~n""'d-"s"""uch==-o=t=h=er=-l""u=d=ge~s as the
-.
~ Article 216 provi des that every...: ig
to time deem it neces sary to appom t.
Pres1'd en t may firo m t1'me 413
Samarth Agrawal Books
 . • offndia
The Cons11t1111on • l 217
d c:s _Artie c:
f IIi b Court u .d that every Judge of a
01 ·otroent o d It provi es - . -
A H. h Court Ju ge. . the Chief ustlcc of a
. t of a ig ld a oint
. {i r the appointmen . 1be President wou f the State .
. Jc 217 proVJdes o . b the President. . d the Governor o
:, :;:c Court would be a omte!ith the Chief ustice of India an . ssed previously in three Judges
Hi Court after consultation H'gh Court Jtidge has been discu ointment of a High Court
:, The procedure of app. d
ointment of i r
therein are equally app i
cable for the app
f
The guidelines laid own d h ' hand addressed to the

1J
case• . g un er 1s -
Judge. . h Tudge rnay by wnun
. . I 217(1Xa) provides t at a~
:, Resignation: Artie e fi h . s office by the Ptesident in
President. resign his ofi ice. may be removed from l Court
. I 217(1Xb) provides that a Judge l of the Judge of Supreme .
:, Removal: Arti c e 24(4) for the remova . 62
'ded under Article 1 f ff h Court Judge is years.
the manner provt t' ement age o a ig 1
. t· Article 217(1) provides that the re ir J d fa High Court shall before he
:, Retiremen · ointed as a u ge 0
. .d that every person app f the State or some erson a
:, Oath: Article 219 provt es .b b fore the Governor o . .
h' Hice make and subscn e e . d. to the form set out m the Third
enters upon is o ' . th or affirmat10n accor mg
pointed in that behalf by bun, an oa
Schedule.
g__ualifications of High Court Judges
. . b e a High Court Judge:-
:, Article 217(2) provides the following are the quahficat10ns to ecom

(a) He is a citizen oflndia; or .

(b) He has for at least ten years held a judicial office in the territory oflnd1a; or .
(c) He has for at least 10 years been an advocate of a High Court or of two or more such courts 10

succession.

Power of High Courts to ,issue certain writs [Article 226

~ Article 226 provides that every High Court is empowered to issue writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari for the enforcement of fundamental rights or for any
other purpose.

Habeas Corpus

~ It is a latin term >Vhich means 'you may have the body.'

~ The writ is issued in form of an order calling upon the person by whom anoth · d · d
bri th t b fi h - er person 1s etame to
per~!n. a person e ore t e court and to let the court know by what authority he has detained that

~ Application can be made by a person who is illegally detained bu . . . .

made by any person on behalf 0 f th . t m certam cases application can be
e person detamed.
Mandamus

~ The term mandamus means 'we comma d' I .

bf n . t is an order of th .
or a pu ic authority to do or to forbear to d h. . e superior court commanding a person
o somet mg m the nature of public duty.
414
Samarth Agrawal Books
 . for . . ~ Cn,,,;,,,,_.,,
~ Following are the es sentials
..,1#Jit,

(1) There has to be a le I

issuing rnandarnu •··-
ga or st .
atut ory duty in favour
(2) The applicant made
has . a representation before th of applicant;
(3) The authority f:
e authority for performance of' such
dutr.
ailed to perform the IegaI or statutory d
= Generally• the wn.t of rna d uty.
. 'f
n amus will not 1ie the duty · not a mandatory duty and it is only a
discretionary duty. I
is
Prohibition

= Wr
. . . d' . on.
• ed by a su .
it of prohibition is Issu .
penor coun to prevent an inferior court or tribunal from exca:ding
its 1uns .1cttb.
= . .
.
Th e mam o Ject behind this wn.t is .
to prevent th e .infenor couns from usurpi·n g the Jun • on.
· ·sd'1ct1
Ccrt1oran
:, It is issued by the supenor • court to th · r d .. . dicial
h
· t e orders which are e mrerior court or any bo y exercising Judicial or quasi-ju
fun ctions quash mg in e
the court
the gro und s o h. h . xcess to or abuse the jurisdiction of .
:, roll ow ing are
. n w Ic It can be issued·-
·
(1 ) Where there Is want o f or excess of jurisdiction-
'
(2) Wh en there is err or of 1aw apparent on the face of the record·
3) Wh th . . exercising the . .sd. . ,
( en ere is material.uregu1ant. y tn
Jun 1ctton.
:, Certorari and p roh 1·b Itlo ·• ed sister writs.
n are also call
.
n is issu ed bef;ore th e d ec1s . 1s
. 1on . made b th th ont· y ·i.e. to prevent exercising the
:, Wn t of Pro hib itio
. y e au
. . d . . . . . ision
1uns ict:Ion, while writ of Ce rfJOran is issued after the decision is made i.e. to quash the dec
n, 'IVT
·
x_uo w arranto
at authority
:, It me ans 'by whice at aut hor ity ' . The h oId er of th e public office is called upon to show by wh
he hol ds the off .

he is not legally entitled to hold.

If the court finds that the
f
~ !t ~ev en; ~ per son to
e office has no
hol d an
aut
off
hor
ice
ity
wh
to
ich
hol d the offi ce, the court may direct the holder
to vacate the
ofi er O
fj
o 1ce.
in respect of a private office.
to be a pub lic off ice . Wr it of quo warranto can not be issued
~ The off ice has
nte nd en ce ov er all cou rts by the High Co urt (Article' 227]
Power of sup eri
and tribunals
t eye ry Hig h Co urt sha ll hav e sup_erintendence over all courts
~ Art icle 227 pro vid es
tha
isd icti on.
hou t the terr itor ies in rela tion to wh ich it exercises the jur
thr oug
urt may:-
For thi s pur pos e the Hig h Co
h cou rts;
(a) caII for ret urn s fro m suc ctice and proceedings of
e gen era l rul es and pre scr ibe for ms for regulating the pra
(b) ma ke and issu
suc h cou rts; and s of any such courts.
wh ich boo ks, ent ries and acc oun ts shall be kep t by the officer
(c) pre scr ibe for ms in d tha t
Su ren dra Ku ma r Sri vas tav a, (2019) 4 SC C 214 Supreme Co urt hel
~ In Sta te ofJh ar kh an d v. , but not und er Article 226.
der Art icle 227 cha llen gin g jud icia l ord ers are ma inta ina ble
wri t pet itio n un
41S
Samarth Agrawal Books
 Th, Comtrtulton ofIndia - - - -
/--------------Mis~Ua~~~--- ------ '\
I
/ I
/ □
h Id the office as a permanent Judge of a High
Article 220 provides that no person who has e h . . I dia except the Supreme Court I Legislative
I Court shall plead or act in any court or be~o re any aut onty m n I
f [Articles
and the other High Courts. .Hi h Court Judge. I
f Article 221 provides for the salaries, allowances, pcns10_ ns of the I
□
g . f I cl
fI h h
□ Article 222 provides that the President after consultation wit t e Chief Justice o n 1a may I
/ transfer a Judge from one High Court to another. . . I
/ . rovides for the appointment of acting ChiefJustice. Th~ Pr~s1dent may appoint I
/ □ Art:le 2J::e to be acting Chief Justice when the office of Chief Justice is vacant.. . I
I/ □
ano er . -
Article 224 provides for appointment of addit10n~I and actmg u ges.
J d The add1t1onal and II
w
I actmgJudges are appointed for a period not exceedmg two years. . I
I □ .
Article 224A provides for the appointment of retued h ~
Ju d ges at t~ · tt'~
ngs_of_
the
_High
_ _Court.
__ /
'---------------------- -
:> Article 24
SUBORDINATE COURTS
for thew
[Part VI, Articles 233-237]
or any P~
~ Article 233 provides that appointments, posting and promotion ~f any_ person as_diStrict judges i~ ~ny
:> Article
State shall be made by the Governor of the State in consultation with the High Court exercismg
that it w
jurisdiction in relation to such State.
~ A person not already in the service of the Union or of the State shall only be eligible to be a~pointed ~ftc:
a district judge if he has been for not less than seven years an advocate or a pleader and 1s recom- ~
:> The Stat
i
mended by the High Court for appointment.
between
~ Article 234 provides that appointments of persons other than district judges to the judicial service of Ta.zj
a State shall be made by the Governor of the State in accordance with rules made by him in that behalf
Suprem
after consultation with the State Public Service Commission and with the High Court exercising juris-
diction in relation to such State. lation cJ
the Stat!
~ Article 235 provides that the control over district courts and courts subordinate thereto including the
posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State
and holding any post inferior to the post of district judge shall be vested in the High Court.

~ In Dheeraj Mor v. Hon'ble High Court of Delhi, (2020) Supreme Court held that Civil Judges are Article
not eligible to seek direct recruitment to post of District Judges in bar quota. Eligibility under Article ture. Fe
233(2) of the Constitution requires 7 years of continuous practice. Only practising candidates can avail
the quota. __y/pa
RELATIONS BE1WEEN THE UNION AND THE STATES
~
~
[Part XI, Articles 245-293]

~ Distribution of powers between the Union and the States is an essential feature of federalism. The
at
Constitution has provided exhaustive provisions for distribution of powers between the Union and the
States. ► P.
n
416
Samarth Agrawal Books -
\ ih,c,,
I

•
Relations B "''""''"" 0flndu,
I et-ween The U .
I
r-------- nton and The Stau,,

I
I
Legislative relations
[Articles 245-255]
Ad I
ll1101strattvc rclattom Fmanc1al relations
I [Articles 256-263] [Articles 264-293]
I
----=-~--
Legislative
Relation s
.
[A rticles 245-255)

The distribution .
of Legislative Powers
r
with respect to territory
I
I
with respect to subject matter

~ relation
~ Article 245(1) provides that sub·
Ject to the provisions O f h. C . .
for thewh ole or any part of th t is onst1tut1on, Parliament may make laws
e country and the Le . 1 f
or any part of the State. gis ature O the State may make laws for the whole

~ Article 245(2) provides that no law m d b p .

that it would have extra-ter ·t • I a ~ y arhament shall be deemed to be invalid on the ground
n ona 9Perat10n.
~ f territorial nexus
. . laws except when there is sufficient connection
~ t a t eth Legislature cannot make ext ra-terntonal
between e 5tate and th e subject matter of legislation. [A.H. Wadia v: Commissioner of Income
Taxj .

~ Supreme
_ Court in State of Bombay v:· RM · · 11eg1s-
- •D . C ., AIR 1957 SC 699 , heId th at extra-terntona ·
lat10n can be upheld only when there is a sufficient nexus between the object sought to be achieved and
the State seeking to achieve them. The connection must be real and not illusory.

~ m a t t e r relation

~ Article 246 is related to the subject matter of law making power of the Parliament and State Legisla-
ture. Following points are important with respect to subject matter relation.
/Parliament has exclusive power to make laws with respect to matters enumerated in the Union
~ (List I).
/ ~~ate Le islature has exclusive power to make laws with respect to matters enumerated in the State
L. List II).
Parliament and State Legislature both have powers to make laws with respect to matters enumer-

ated in Concurrent List (List III).

► Parliament has power to make laws with respect to~atter for any partlof the territory oflndia
not included in a State notwithstanding that such matter is a matter enumerated in the State List.

- Samarth Agrawal Books

417
 The Comtit11tion ofIndia
~ J a v e d V. State of Haryana. (2003) sec, Supreme
Court held_tha~ the Constitution gives auto~ o~
to the Centre and the States within their respective fields. The leg1slat1on
of one State cannot be h~d to
be discriminatory against its citizens simply because Parliament or State
- .---- --,-- ----- --
n3t chosen to enact similar laws~
----
Legislatures of other States h;-;---
~
~ t i d e 246A provides for the sp~l provision with respect (a)
to goods and service taxes. This provision
has been inserted vide 101" Constit utional Amend ment, 201L (b)
~ Article 248 provides for~residuary powers of legislatiorillt lays down that subject (c)
to Article 246A,
Parliament has exclusive power to make law with respect to any matter
not enumer ated in the Concur- ;, In
rent List or State List.
Al
en
Pr,nciples of Interpretation of Lists ~ o c tJ
~ Subject matters enumerated in the lists are not scientifically perfect and there
compar tmental ization . There has to be certain overlapping. Therefo
interpre tation oflists which are to be followed by the Courts while
cannot be a water-tight
re, there are certain princip les for ~
~ e n a r y power of Legislature
adjudic ating upon the matter:-
_,, .)
► It is the absolute power to enact laws and it is only subject to legislati
ve compet ence and other
constitutional limitations.
► The power of the legislature to enact laws with reference to the matters
entrust ed to it is unquali fied
and it is only subject to the limitati ons impose d by the Constit ution.
[l.K. Jute Mills v. State of
U.P., AIR 1961 SC 1534]
► Entriesl:!ihould not be interpre ted in restrive sense. Each general word
in an entry should be con-
strued to include all ancillary powers or subsidi ary matters . [State
of West Benga l v. Union of
India]
/ T u e power to make laws include s the power to give effect :> At
to it prospec tively as well as retrospec-
to
tively.
~ Anci11ary or incide~tal powers ..
► The power to legislate on a topic include s the power to legislate on
an ancillar y or inciden tal matter
which can be said to be reasona ble include d in the power given.
► In R.D. Joshi v. Ajit Mills, AIR 1977 SC 2279, Suprem e Court held that
the entries in the list must
be given wide meanin g implyin g all ancillar y and inciden tal powers
.The court held that punitiv e
measur es for enforci ng social legislat ion is ancilla ry measur es.
~ t r i n e of Pith and Substance
~ f the law passe~ by one_legislat ure encroac hes upon ~he
field assigne d to other, then the court will
apply the doctnn e of pith and substan ce to determ ine whethe
r the legisla ture was compe tent to
/mak e it or not.

~/ Pith and Substa nce oflegis lation means true object and scope
oflegis lation.
J If the pith and substan ce of law relates to the matter s within the compe tence oflegis
lature then the
enactm ent will be held to be intra vires.

418 Samarth Agrawal Books

 ,_,:.. 11 '!be Co,u,; .
, In Pr.uu.ua Kumar v. »--• htno,, oflndu,
. . . ----uuc of Co
cut d1stmct1on is not £O .bl 'IJUnelt'e Kb
becausetheyarebou d SSI ebetweenthe) .• . u/na.AIR1947PC60,thecourtheldthataclear·
n to over) cgis 1attve pow fth . ~

>·
consider :- ap. In ascert , . en o e Union and the State u:_gts~_mres_
h b. ain,ng th e pith and subst;nce of the Act the court must
(a) t e o Ject of the Act, .
(b) the scope of the Act a d
(c) the effect as the whole~ /H)b'~ ~.:f Cc ~ c 4 ~
, In State of Bombay v F N
· Balsara,
· · and
Act, as valid because th e ·pith .. •
sub t AIR 1951 SC 318 , the court held the Bombay Proh1b1tton
encroached upon th e -runion
, • List. s ance of the Act fi II · S •
e m tate List even though it incidentally
~ctrinc of Colourable Legislation
► I h .
. appare nt y t e legislature
It means that though . th
of t h e powers yet 10 substan · pasSmg e statute purported to act within the limits
- ce it transgressed these -
" [K.C.G. Narayana Deo v: St. powers. The transgression is covert or indirect
. · ate of Orissa, AIR 1953 SC 375] ·
It 1s based on the maxim 'wh at cannot be done d. I
/ ·1· · b irect Y, cannot also be done indirectli
► Co Ioura 61 1ty 1s ound up w·th1 . ·
,. 'B'''- mcompetency and not with bad faith or evil motive.
► Sta ,e o1 war v. Kameshwar Singh .
declared invalid on the g d f 'AIR 1952 SC 2 52, is the only case where t,pe law has been
roun o colourable legislation.

Repugnancy between Centre and State law (Article 254]

~ Article 254(1) ·
· o f a Iaw made by the Legislature
. . provides that if an YP rov·lSlon of the State is repugnant
r ·
to. any provmon of a law made by p ar lament wit h respect to one of the matters of the Concurrent
List then the law made by Parliam en t sh a11 preva1·1 . Th.1s prov1S1on · to Article 254(2).
· subiect
· · 1s
~ Article 254(1) is applied when there is inconsistency between State law and the Union law with respect
to the Concurrent List.
~ Article 254(2) envisages a situation where the State law will prevail over Union law.
~ It provides that if the State law is repugnant to any law made by Parliament on the Concurrent List but
the State law has been reserved for the assent of the President and has revieved the assent of the
President then the State law will prevail over the law made by the Parliament.
~ However, Parliament can still override such law by subsequently making a law on the same matter.
~ Deep Chand v. State of U.P., AIR 1959 SC 648, Supreme Court held that repugnancy between
two statutes may be ascertained when there is direct conflict between the two provisions, when the
Parliament intends to lay down an exhaustive code in respect of the subject matter replacing the Act of
the State Legislature or where the law made by the Parlia~ent and the law made by the State Legislature

~PY the same field .

/In M Kamnanid.hi v. Union ofIndia, AIR 1979 SC 898, Supreme Court held that in order to decide
the question of repugnancy it must be shown that the two enactments contain inconsistent and irrecon-
cilable provisions, so that they cannot stad together or operate in the same field. The court further held
that where two statutes occupy a particular field and there is rooom or possibility of both the statutes
operating in the same field without coming into collision with each other, no repugnancy results.

- Samarth Agrawal Books 419

 Tbt Con.rtit11tion of India •
h State subJect
' legislate on t e
Parliaments power to . I on the matters enumerated
. t gets. the aut h on
•ty to Jeg1s ate
:> In the following circumstances the Par Iiamcn
in the State List.
. Interest [Article 249) . su orted b 3 of the members
(1) National . . h R . a Sabha asses a resolution . that the Parliament should
d s that 1f t e a . h tional mterest
:> Article 249 prov1 e . . rv and expedient m t e na . S t List then it shall be lawful
d t111 l1; that at as necessa_ ther entry m ta e
present an vo d nd service tax or any O I gas the resolution remains
make laws ~ith respect to goo s:Or whole or any part of the country so on
for the Parliament to make laws . .
in force. . bh . can be renewed multiple lime
ains valid for a year but it
:> Such resolution passedb y the RaJYa. Sa a rem .
but not exce eding one year each tame. h . .
ffect after expl!at10n o f six months after resolution
:> The law made by Parliament shall cease to ave e
ceases to operate.
. f ency [Article 250]
(2) During proclamataon o emerg . . operation the Parliament sh-all
. th lamation of emergency is m cl d
:> Article 250 provides that while e proc f the country with respect to goo s an
have the power to make laws for the whole or an~ part o
ecified in the State List.
service tax and other matters sp . th f th date when emergency ceases to
. o f six mon s rom e
:> Such law will cease to have effect a fiter expiry
operate.
(3) Consent of States [Article 252)
States ass a resolution to the effect that
:> Article 252 provides that if the Legislatureli~ of two or more tter inpthe State List then it shall be lawful
it is desirable to have a law passed by the Par ament on any ma
for the Parliament to make laws on that subject matter.
(4) To give effect to Treaties and International agreements [Article 253]

:> Article 253 empowers the Parliament to make law for the whole or any P.art of India for implement·
ing treaties and international agreements and conventions.

(5) In case of failure of Constitutional machinery in State [Article 3srj'

:> Article 35~provides that Parliament is empowered to make laws with respect to all matters in the State
List in case of State emergency.

Administrative Relations [Articles 25~263]

e 256 provides that the executive power of every State shall be so exercised as to ensure compli-
anc with the laws made by the Parliament and any existing laws which apply in that State and the
ex utive power of the Union shall extend to giving of such directions to a State as may appear to the
overnment of India to be necessary for that purpose.

~ Article 261 provides that full faith and credit shall be given throughout the territory oflndia to public
acts, records and judicial proceedings of the Union and of every State.

~ Final judgments or orders delivered or passed by civil courts in any part of the territory oflndia shall
be capable of execution anywhere within that territory according to law.

420
Samarth Agrawal Books
 n,, Co,,,11
tion of water d" 110
of l11d111
:;z:.-----..::..:..~1,sputes '" "

j\rticle 262(1) provides l'l

. .h t at Par ha
comP lamt wit respect to th e use dis ment
~ Jl - ~nb_!lJ:Jon- rnay bory claw prov,d c for the adjud1cat1on of any d1~pute or
ontrol of the
:, parliament may by Jaw waters of, or m, anymter-State nvcr or
provide th
tion m respect of any tnter-S at neither Suprern
tate Water d e Court nor an oth
:, parliam nt has enacted I tspute or com 1 : er court shall excrc1~e iumdtc•
...!lter-State W P atnt. [Article 262(2)]
ater Dis
Jntc: tatc Council putes Act. 1956 und er Art1cle 262.

:, Article 263 provides for th e establish

~States. and between Centre and States.
ment of an Inter-State Council to effect coordmauon between
lltio fl
:, The President can establish sue h a coun ·1 'f
I
be served by its establishment · ci at any time it appears to h'im th at the public
. interest would

:, He can define the nature of d .

. . uties to be performed b sue . .
:, Article 263 specifies the dut'1es t I1at can b . y ha council and its organisation and proced ure.
. . . e assigned to it i th c II .
(a) Inqumng mto and adv· · n e ro owing manner·
ismgupo n d'isputes which . ·
to (b) Investigating and di . . may anse between States;
. scussmg subiects in which h sta
mterest; and t e tes or the Centre and the states have a common

(c) Making
. recommendations u pon any such subject and . I I c
at policy and action on it. particu ar Y,or the better co-ordination of

:> The Sarkaria Commission on C en t re-5 tate Relations

. (1983 87) d st
ment of a permanent Inter-St t C . . - ma e a rong case for the establish-
a e ounc11 under Article 263 of th e C onsutution.
. .
:> th
In pur
nter ance
St t of
Cothe above
·1. recommendatio ns o f th e Sark:ana
. Commission, Government established
- ae unc1 m 1990.

:> It consists of the following members:

(i) Prime Minister as the Chairman

(ii) Chief Ministers of all the States

(iii) Chief Ministers of Union Territories having Legislative Assemblies
(iv) Administrators of Union Territories not having Legislative Assemblies

(v) Governors of States under President's rule

(vi) Six Central Cabinet Ministers, including the Home minister, to be nominated by the Prime Minister.
~ Five Ministers of Cabinet rank/ Minister of State (independent charge) nominated by the Chairman

of the Council (i.e., Prime Minister) are per~anent invitees to the Council.
421
Samarth Agrawal Books
 The Constitution of
India
Fi na nc ia l R el at
io ns [A rt ic le s 26
4- 29 !}

A
Co oI'd I a ted
.
le 265 proVIdes that
Fund of India an
Article 266 provid
d of
h
no tax s a
II be levied or collecte d

. the Statde
f I d"
excep
t by the authority
of law.

es for Consolidated d of States and pu .

Fun o n ia an blic account o f In .
of State. . . dia and
h 11 be subject to A
~ These proV1 rt icle 267 (Continge
. s1on s s thae ncy Fund) and to
~
e as s1 gn m en t of w hole or the provisions relat
th part of the net pr d ing to
Consolidated Fu nd ocee s.
of India: Followin rd dF .
g shall fo;m the
(1) All revenue re Conso I ate un d f India·-
ceived by the Gov o .
(2) All loans raise ernment of Indi~;
d by the Governm . .
ent of India by iss
(3) Loans or ways ue of treasury bills
and means advanc ,
(4) All money rece es;
~
Consolidated Fu
ived by the Gover
nd of th e State: Fo
nment in repaym
ent of loans. .
llowing shall form d th t
(1) All revenue re the C on so lid at ed
ceived by the Gov Fu o of e S ate
(2) All loans raise er nment of the Stat :-
d b}"the Governm e;
ent of the State by
(3) Loans or ways issue of treasury
and means advanc bills;
(4) All money rece es;
~ All other public monivey ed by the Governm
ent in repayment
71e sh ill be credited to
s received by or on
the l!ublic m ou nt
be ha lf of the G ov
of loans.
er nm en_t of In di a
/~cy of !n di a ot th e l! or th e G ov er nm en
ub hc ac co un t of
th e St at e.
t of
~ Article 267(1) provides
Fu nd of In di a an
d of th e States
for the Continge
ncy Fu nd. of In di
Continge y Fund a an d Article U
~ Article 26nc of the State.
7(1) provides that th
,7(2) pr ov id es fo
r the
e Parliament may
sums shall be paid by law establish a C on tin
~ Such fund shall be plinto it as may be determined by such law. ge nc y Fu nd of In
di a an d such
aced at the dispos
such Fund for the al of th e Presiden
purpose of meetin t to enable advanc
g unforeseen ex pe es to be m ad e by
ture by the Parliam nd itu re pe nd in g hi m ou t of
ent by law un de r au th or iz at io n of
~ e simila Article 115 or 11 su ch expendi-
t lines Contingenc 6
y Fund of the Stat
e shall be "5tablishe
/~and d by the State Gov
Service Tax ernment by law.
~ Provisions related
to Goods an d Se
rvice Tax has be
ment Act, 2016. en in tr od uc ed by
101• 1 C on st it ut io
~ Arti~le 269A prov na l Amend-
ide~ th at Goods
commerce shall be an d Service tax on su
levied and collect pp lie s in th e co
ur se of in te r- St
~ ~uc. tax shall be ed by th e G ov er nm en
t of In di a.
at e tr ad e or
ap pr op ria te d betw
1ament by law on ee n th e U ni on an d th e St
the re co m m en da ates in th e m an ne
tio n of G oo ds an r as m ay be pr ov
ods and Service d Service Ta x C id ed by
Tax (GST) Counc ou nc il.
il
Artic
an d le 279A (inserted by
Service Tax C ou nc 101" C on st itu tio
il. (GST C ou nc il) n 1Am d
a en m en t, 2016) .
:> It provides th at pr ov id es fo r es ta bl is hm
the GST C ou nc il en t of Goods
co m m en ce m en t sh al l be co ns tit ut ed by
of 101st C on st itu th e Pr es id en t w
tio na l A m en dm it hi n si xt y d s
en t, 2016. f th
422 ay ro m e
Samarth Agraw
al B oo ks
 /4
1'heCo
"'""'""" of/,ulu,

, j\rtidc 279A(2) provides that th

mern bers:- e Goods and Se rvice .
· Tax Council shall consist of the follo,nng

(a) Jbe Union Finance Minister (Ch .

. . auperson);
(b) The Umon Minister of St . •
. . ate in charge ofR .
(c) The Mm1ster in charge of p· evenue or Fmance (Member);
inance or Taxafion or any other Minister nominated by each State
Government (Members).
, The Members of the Goods an d Serv1ces
. Tax Co ·1
as soon as may be, choose one a unci referred to in sub-clause (c) of clause (2) shall,
. . . for such
penod th
. as ey may decide. mongst themselves O be th e Vice-Chairperson
t of the Council

~ Q!Jorum: One-half of the total num ber of Memb f th G

constitute the quorum at its meetings. ers O e oods and Services Tax Council shall

· • have been di.satssui under the chapter 'Constitutional Bodi.ts'.

Note: Provisions relating to Finana Commzsswn

TJW)E, COMMERCE AND INTERCOURSE WITIIlN THE TERRITORY OF INDIA

[Part XIII, Articles 301-307]
, General
in rules
Articles 302- _ and commerce are 1ai.d d own under Article 301 and restrictions are laid down
of trade
305
, Article 301 provides ··
. that subi·ect t 0 0 th er provmons of Part XIII, trade, commerce and intercourse
th rough out th e terntory oflndia shall be free.
, . means free
'Freedom' here ·
. movement an d transport o f good s. 'Trade• means some real, substanual
and systematJ.c or organized course of,g,ctivity or conduct with a set purpose.
~ Object: The object behind the provision is to create and preserve a national economic fibre. It breaks
down the border between the States and creates one economic unit. {Atiabari Tea Co. v. State of
Assam, AIR 1961 SC 232]
~ In State ofBombay v. R.M.D.C, AIR 1957 SC 699, it was held that protection offered under Article
301 is available to lawful trading activity and does not extend to activities which are res extra wmmercium.
~ Article 301 is violated only when a legislative or executive act operates to restrict trade, commerce and
intercourse directly and immediately.
~ Laws which are mere regulatory or impose compensatory taxes are outside the scope of Article 301. In
determining whether a tax directly offends against Article 301 movement of goods which are subject
of trade must be kept in mind.
~ In Atiabari Tea Co. v. State of Assam, AIR 1961 SC 232, Supreme Court held that imposition of
tax or duty in every case would not amount per se to an infringement of Article 301. Taxes simpliciter as
opposed to discriminatory taxation is not within the scope of Article 301.
~ In Automobile Transport Ltd. v. State of Rajasthan, AIR 1962 SC 1406, Supreme Court recog-
nized the concept of regulatory and compensatory taxes and held that compensatory taxes are outside

the purview of Article 301.

~ In compensatory taxes the existence of a specific, identifiable object behind the levy and a nexus

between the subject and object of levy has to be shown.

Samarth Agrawal Books 423