Allocation and share of resources

 when we see about the characteristics of federal state then we find that one of the characteristics specifically
mentions about the distribution of taxes.
 Thus, a federal state always has a distribution of powers. Indian Constitution specifies about the distribution
of revenues where exclusive powers are given to the State, to collect taxes and exclusive powers rest with
Union in relation with taxes.
 In the words of D.D. Basu.-“No system of federation can be successful unless both union and states have at
their disposal adequate financial resources to enable them to discharge their respective responsibilities under
the constitution.”
 In India the scheme of distribute of sources of revenue between the Centre and states is based on the scheme
laid down in the Government of India Act 1935.
 The constitution of India provides for the appointment of finance commission under Art. 280 which itself
whose very unique feature of flexibility.
 The constitution provides separateprovisions relating to taxation by centre and states. The taxes enumerated
in the union List (List I) are leviable by centre exclusively while those mentioned in the state list (List II) are
leviable by the state exclusively.Art. 265- Article 256 says that no tax can be levied or collected except by
the authority of law.

Grants-in-aid to the states serve two purposes

 Through grant-in-aid the central Government exercises strict control over the states because grants are
granted subject to certain conditions. If any state does not agree to the condition the Central Government
may withdraw the grants.
 It generates the centre state co-ordination and co-operation if a state wants to develop its welfare schemes
for the people of the state it may ask for the financial help from the centre.

The distribution of revenues is from Article 268 till Article 281 in the Indian Constitution.

1. Article 268: Duties levied by the Union but collected and appropriated by the States:
This Article was amended by the Constitution (seventh amendment) Act, 1956 with effect from 1st
November 1956. Article 268 (1) provides that stamp duties and excise on medicinal and toilet
preparation which are mentioned in Union List, the collection of duties shall be made by the State
which shall be levied by the Union Government.

2. Article 268-A: Service tax levied by Union and collected an appropriated by the Union and States:
This Article was inserted by ninety-fifth Amendment Bill, 2003 which was passed by both the
Houses of Parliament – Lok Sabha on 6-5-2003 and Rajya Sabha on 8-5-2003 . Article speaks that
taxes on services shall be levied by the Government of India which shall be collected by the States.
Such tax shall be appropriated by the Government of India and the States.

3. Article 269: Taxes levied and collected by the Union but assigned to the States:
a. This Article was lastly amended by the eightieth amendment with effect from 1st April, 1996. Taxes
which shall be levied and collected by the Government of India which are included in this Article:
(a) the consignment of goods which takes place in the course of inter-state trade or commerce, (b)
sale or purchase of goods which takes place in the course of inter-state trade or commerce
State of Andhra Pradesh v. National Thermal Corporation Ltd
The Supreme Court considered section 3 and 6 of Central Sales Tax Act, 1956. Supreme Court held that a
movement of goods after completion of the transaction of sale within the State, does not constitute inter-State
sale. Bench has also laid down few principles for considering inter-State trade or commerce:
1) Existence of a contract of sale incorporating a stipulation, express or implied regarding inter-State movement
of goods;
2) Goods must actually move from one State to another pursuant to such contract;
3) Such movement of goods must be from one State to another, where the sales conclude

4. Article 270: Taxes levied and distributed between Union and States:
This Article was lastly amended in eightieth amendment which was in effect from 1st April, 1996. This
Article specifically provides that taxes on income other than agricultural income and corporation tax
shall be levied and collected by the Union and is distributed by the Union and States . The revenue
which shall be transferred to the Sates is unconditional and the States shall be free to use their income as
and when they like.

5. Article 271: Surcharge on certain duties and taxes for purposes of the Union:
This Article corresponds to S. 137 and S. 138(1) of the Government of India Act, 1935. Article basically
speaks that Parliament is empowered to levy a surcharge from time to time as it's the parliament who has
imposed a surcharge and so it won't be precluded to surcharge in another form.

Grants-in-aid- The constitution provides for three kinds of grants-in-aid to the states from the Union
resources

6. Under Art. 273 – grants-in-aid will be given to the states of Assam, Bihar, Orissa and west Bengal in lieu
of export duty on the jute products. The sums of such grants are prescribed by the president with the
consultation of finance commission. The sums will be given to the states for the period of 10 years from the
commencement of the constitution.
7. Under Art. 275- empowers parliament to make such grants, as it may deem essential to the states which are
in need of financial assistance. The constitution also provides for special grants given to the states which
undertakes schemes of development for the purpose of promoting the welfare of the scheduled tribes or
raising the level of administration of the scheduled areas. A Special grant to Assam is given for this purpose.
8. Under Art. 282-- both the Union and States make grant for any Public purpose even if it relates to a subject
over which it cannot make laws. The central government can under this Article make grants to hospitals or
to schools.

Finance Commission
 Article 280 of the Indian Constitution is a very important article as it deals with the Finance Commission of
India. It lays down the composition, power and functions of the finance commission. The idea of the finance
committee has been borrowed from the Common-wealth Commission of Australia.
 As per Article 280, the President has the power to set up a Finance Commission after a period of every five
years. The Finance Commission will assist the President by making recommendations to him regarding the
distribution of net proceeds of taxes to be divided between the centre and the states.
 The object of setting up the Finance Commission is to ensure an equitable distribution of funds between the
Centre and state so that neither there is any impairment to the autonomy of States nor to limit the revenue
resources of the Centre.
 The composition of Finance Commission is mentioned under the Finance Commission Act, 1951 which
when read with provisions of Article 280 lays down that the Commission basically consists of five members
out of which there will be one Chairman, as appointed by the President of India.
 The criteria for selection of the Chairman is that he/she should have a special understanding of public affairs
while the members shall possess the following qualifications:
o He/she may be either a judge of a High Court or qualified enough to be appointed so.
o He/She must have deep knowledge of the finance and accounts of the Government.
o He/She must be experienced in the field of financial matters and in administration; or
o He/ She must have a special understanding of economics.

Functions of the Finance Commission

 The distribution of the net proceeds between the Union and the States and allocation of such proceeds
between different States.
 To lay down guidelines concerning the grants-in-aid of the revenue of the states out of the Consolidated
Fund of India.
 The suggestions on augmentation of the consolidated Fund of a state to supplement the resources of the
Panchayats and Municipalities in the State.
 Any other matter in the interest of sound finance
State emergencies
 An emergency is a situation in which the government can exercise its emergency power. Emergency power
includes the power to perform actions or execute policies which they would not be empowered to enforce in
a state of normalcy.
 An emergency could also be understood as a situation in which the government machinery fails and needs
immediate government control to normalize the situation and counter the problems.
 Under these conditions, some fundamental rights given under the third part of the Constitution are
suspended. The suspension is necessary for the overall well-being of society. Without the suspension, the
government cannot stabilize the situations.
 Government can enact laws to impose such reasonable restrictions on the grounds of the sovereignty and
integrity of India, the security of the State, friendly relations with foreign States, public order, decency or
morality or concerning contempt of court, defamation or incitement to an offence.

Emergency Provisions

 Emergency Provisions are mentioned under part 18 of the Indian Constitution Article 352 to Article 360.
This part has laid down provisions of emergency in 3 ways.
 First, the National Emergency which is imposed in the whole of India. The enforcement of national
Emergency is subject to provisions mentioned under Article 352, 353, 354, 358 and 359 in the Indian
Constitution.
 Second, in this form of emergency, the President‟s rule is imposed in a state under certain conditions and the
state government gets suspended if any. The enforcement of president rule under this form of emergency is
subject to provisions mentioned under Article 355, 356 and 357 of the Indian Constitution.
 Third, the financial emergency is imposed in case of a grave financial instability. The enforcement of
financial emergency is subject to provisions mentioned under Article 360 of the Indian Constitution.

Reason for National Emergency

 Under Article 352 the President of India has the power to proclaim a national emergency. There are 3
grounds under which the emergency can be enforced.
 But only if the President is satisfied that the reason for emergency falls under those grounds and there
indeed is a national security issue. The three grounds are:
o War
 o External Aggression
o Armed Rebellion (substituted with “Internal Disturbances” by forty-fourth Amendment Constitution
Amendment Act, 1978).

Reasons for President Rule or State Emergency

Under Article 356 the President has the power to proclaim state emergency on receiving a request or report
from the Governor of that particular state stating the situation of that state is such that it is impossible to
discharge constitutional liabilities of the State Government. For that purpose, the State Government is
suspended and the President‟s rule is imposed.

Reasons for Financial Emergency

Under Article 360 the President can impose a financial emergency if he is satisfied that the situation is causing a
financial threat to India or any part of it. Financial emergency has never been imposed in India under any
circumstances in its history since the adoption of the Indian Constitution.

Fundamental Rights in Emergency

 In a democracy, emergency disrupts the basic principles on which state machinery works. Most importantly,
it disrupts the rights fundamentally available to a citizen of that state.
 In India, the proclamation of an emergency drastically affects the fundamental rights of the people. At the
same time, it is not correct that this provision is unconstitutional.
 Both fundamental rights and emergencies are part of the same document. Sometimes, in case of extreme
situations fundamental rights are suspended under Article 359.
 It was foreseen by the framers of the constitution that in future the national security may get endangered due
to the rise of certain events or forces. Such a situation may render it necessary for the State to suspend the
liberties of individuals for the sake of national security.

Direction of Centre to the State under Article 356 and 365

 No chapter of the Constitution has been subject of more acrimonious attack by the critics that those dealing
with the emergency provisions. The constituent Assembly witnessed one of its most agitated scenes during
the discussion of these provisions.
 Many prominent members of the assembly opposed the inclusion of these provisions in the constitution as
they thought they were inconsistent with the democratic provisions embodied elsewhere.
 The majority of members, however favored the inclusion of these provision, although reluctantly as a
precautionary measure against possible disruptive forces destroying the newly established union.
 The constitution provides for three different categories of emergency and in each case the president is
empowered to declare the emergency.
o National Emergency – due to war, external aggression or armed rebellion (Art 352)
o State Emergency - due to the failure of constitutional Machinery in state (Art 356)
o Financial Emergency (Art. 360)

Failure of constitutional Machinery in State- Article 356

Article 356 says that if the president, on receipt of report from the governor of a state or otherwise is satisfied
that a situation has arisen in which the government of the state cannot be carried on in accordance with the
provision of the 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 to
anybody or authority in the state.
 The president may declare that the powers of the legislature of the state shall be exercised by or under the
authority of Parliament.
 The president may make such incidental and constitutional provisions as may appear to him to be necessary
or desirable for giving effect to the object of proclamation.
 The president cannot, however assume to himself any of the powers vested in High court or suspend the
operation of any provision of the constitution relating to the High court.

Article 365 of the Indian Constitution

“where any state has failed to comply with, or to give effect to any directions given in the exercise of the
executive powers of the union under any of the provisions of this constitution, it shall be lawful for the president
to hold that a situation has arisen in which the government of the state cannot be carried on in accordance with
the provisions of this constitution”

Thus this article can validly be invoked only if;

 any direction is given by the union in the valid exercise of its power under any of the provision of
the constitution
 such direction has not been complied with or given effect to by the state.

S.R. Bommai v/s union of India – Judicial Guidelines for imposing president’s Rule

 supreme court held that the dismissal of the BJP Government in Madhya Pradesh, Rajasthan and Himachal
Pradesh in the wake of the Ayodhya incident of Dec.6,1992 was valid and imposition of the president‟s
Rule in these states was constitutional.
 The court held that secularism is a basic feature of the constitution and any state government which acts
against that ideal can be dismissed by the president.
 Article 365 is intended not only to supply an additional ground for the president‟s action under Article 365
but also to restrict and confine the scope of the word “otherwise” in Article 365 to the grounds Mention in
Article 365.

Centre’s responsibility and internal disturbance within states

 Article 355 of the Indian Constitution states about –

o The duty of the Union to protect every State against external aggression and internal disturbance and
to ensure that the Government of every State is carried on in accordance with the provisions of the
Constitution.
 Even though this article has rarely been used, it is viewed as a tool to justify the implementation of
emergency under the provisions of emergency. Two words stand out in this context: “internal disturbance”
and “armed rebellion.”
 While Article 352 enables the centre to declare an emergency in the event of an armed rebellion, such a
declaration cannot be issued in the event of an internal disturbance.
 So, according to the Supreme Court, Article 355 does not give the centre the authority to declare an
emergency because of trivial internal disturbance without any armed rebellion and cannot rationalise a
declaration of emergency under Article 352, nor can such disruption explain issuance of a proclamation
under Article 356, unless it negates or prevents the State from carrying out its government in accordance
with the provisions of the Constitution.
 However, the scope of measures anticipated for the execution of the obligation under Article 355, have
shifted gradually but dramatically.
 The general framework has transitioned from the perspective that these operations should be limited to the
case of emergencies, including those mentioned in Part XVIII of the Indian Constitution, to the presently
prevalent perception that the centre can take any legally enforceable or constitutionally guaranteed action to
discharge its duty.
 Considering the scope of Article 355 of the Indian Constitution, it is not confined merely to the events of
internal disturbance and external aggression in different states. The same was stated in the case of H. S. Jain
v, Union of India.

H. S. Jain v. Union of India (1996)

 In this case, a question was raised regarding the declaration of emergency in the state of Uttar Pradesh. In
Uttar Pradesh, a state emergency was reimposed under Article 356.
 The Court held that by implication of Article 355 enshrined in the Indian Constitution, the Union was
required to make sure that a new Legislative Assembly was formed by upholding the constitutional
provisions.
 The statutory obligation imposed on the centre is to make sure that the administration of every State is
conducted in conformity with the provisions of the constitution. Also, the democratic process was adopted
to consider other options for forming a majority government in the state of Uttar Pradesh.

Federal comity- Relationship of trust and faith between Centre and state
 Part XI of the Indian Constitution specifically deals with centre-state relations. It has been bifurcated into
legislative and administrative relations. Further, in Part XII, provisions related to financial relations are laid
down
 Legislative relations
o Articles 245 to 255 deal with legislative relations between the Union and the states i.e. the
Parliament and state legislatures. It discusses the extent of law-making powers given to the Union
and states.
o On analysing the provisions, it is evident that the Parliament clearly has superseding powers as
compared to state legislatures.
 Administrative relations
o Articles 256 to 263 deal with administrative relations i.e. Central Government and various state
governments. Though India is federal yet it has unitary features and thus in Article 256 itself, it is
stated that the state governments should ensure that they abide by the laws made by Parliament and
do not perform any executive or administrative function in contravention of the same.
o The Sarkaria Commission urged for cooperative federalism in case of administrative relations
between the Centre and states to ensure better relations between the two.
 Financial relations
o Articles 264 to 293 of Part XII of the Constitution deal with financial relations between the Centre
and state. Since India is a federal country, it follows the separation of powers relating to taxes and it
is the duty of the Centre to allocate funds to the states.
o All such related provisions have been covered herein. The power of the Centre and states to levy
taxes has been mentioned in Schedule VII.
o Further, it has many other provisions relating to levy and allocation of taxes by centre and states,
grants to states, surcharges etc.
 Article 246A
o The provision relates to GST. No authority had the power to levy GST since the same was not
mentioned in the Seventh Schedule. Therefore, by the 101st Constitution Amendment Act, 2016,
GST was made valid.
 Article 256
o This provision makes it an obligation on part of the state governments to ensure compliance with
laws made by the Parliament and also gives power to the Central Government to give directions to
states as it may deem necessary.
 Article 258
o The provision empowers the Centre to confer and entrust powers to a state even in matters where the
Union has executive powers.
o It is believed that this provision is a tool for encouraging cooperative federalism since it would lead
to more decentralised powers leading to a more federalist nation.
 Article 270
o This provision deals with levying and distribution of taxes between the Centre and the states. These
include those taxes which are collected by the Central Government in accordance with List-I.
o It prescribes for the formation of a Finance Commission and distribution of such percentage to every
state as may be discussed by the commission

Electoral Reforms in India

 The rules, regulations, and directives of the Election process in India have been changed quite a few times
in order to maintain the dignity of the voting right and to eliminate corruption from all possible levels.
 The first three elections were conducted on a fairground but the standards started to degrade in the fourth
one held in 1967.
Issues with Electoral Politics in India

 Misuse of Government Machinery: Misuse of government machinery takes many forms, including the
publication of advertisements at the expense of the government and the public exchequer highlighting their
accomplishments, disbursements from ministerial discretionary funds, and the use of government vehicles
for canvassing.
 Muscle Power: Violence, pre-election intimidation, post-election victimisation, the vast majority of
riggings of any kind, and silent and violent booth capturing are all fruits of muscle power.
 Criminalization of Politics: During election season, newspapers are frequently brimming with stories
about the number of criminals on the loose who are backed by each political party. The criminals‟
motivation for entering politics is to obtain influence and ensure that cases against them are dropped or not
pursued.
 Money Power: Electioneering is a costly event in any democratic government, but it is especially so in
India. Money power plays a negative influence in our electoral system, substantially influencing the
functioning of periodic elections.
 Lack of Moral Values in Politics: Political parties‟ ideological orientation has deteriorated dramatically. In
India, party dynamics have resulted in the creation of worthless politics.

Electoral Reforms in India After 1996

 The number of proposers and seconders increased for the post of President and Vice-President: The number
of proposers and seconders for the post of President increased to 50, and for the post of Vice-President, the
number increased to 20.
 Voting through postal ballot: For persons who cannot come to polling booths, the postal ballot system was
introduced. This provision was also extended to persons in the armed forces.
 Declaration of criminal records and assets: A candidate contesting elections has to provide a declaration for
any criminal case registered against him. He also needs to declare all the assets and liabilities during the
nomination.
 Domicile and residency requirements changed for contesting elections from any constituency from 2003
onwards.
 An open ballot system in Rajya Sabha was introduced.
 Under section and other laws Amendment Act 2003, travelling expenses were not included in election
expenditures.
 Parties are entitled to receive donations for their election campaigns from any private organisation or
individual. A single individual needs to report to the Election Commission for donating more than 20000.

Electoral Reforms in India Since 2010

 Restriction on exit polls: The Election Commission of India declares a particular time period during which
exit polls cannot be conducted or declared.
 The amount of security deposit was further increased to 25000 for general category individuals contesting
for Lok Sabha elections and 12500 for SC/ST category individuals. For contesting state legislative assembly
elections, the amount was also increased to 10000 for the general category and 5000 for SC ST category
individuals.
 Appellate authorities within the district: If a person is dissatisfied with the decision of the electoral
registration officer, then an appeal first needs to be filed to the District Magistrate, Additional district
magistrate, executive magistrate or district collector and later to the electoral officer.
 Voting rights to citizens of India living abroad: This was introduced by the Representation of the People
Amendment Act 2010. Persons living abroad who have not acquired citizenship in another country are
eligible to vote in India.
 Registration of the electors‟ amendment rules 2013.
 NOTA introduced: The option of none of the above was introduced in cases where the voter is not satisfied
with any of the candidates contesting the election.

Need for Electoral Reforms in India

o Free and fair elections have been made possible by electoral reforms. Election reforms include things
like implementing best practices to ensure better, more accountable parliamentary democracy, fixing
structural problems, promoting honest politics, and preserving public confidence.
o There should be transparency in politics like giving Indian citizens the right to information, facilitating
voting with assurance, ending the criminalization of politics, maintaining the secrecy of voters, ensuring
free and fair elections, fairly registering political parties, finding a solution for delisting voters, the non-
partisan role of the media, and enforcing the model code are all examples of transparency in politics.
o The need for electoral reforms has also been felt, primarily in order to fulfil the aspirations of the
younger generation, prevent the criminalization of politics, discourage the use of force and money in
politics, stop the abuse of government resources, increase public trust, strengthen election commissions,
make them independent, and use technology in the electoral process.

Election Commission
 The Election Commission was established in accordance with the Constitution on 25th January 1950. The
Constitution establishes the Election Commission as a body autonomous in character and insulated from
political pressures or executive influence.
 The major aim of election commission of India is to define and control the process for elections conducted
at various levels, Parliament, State Legislatures, and the offices of the President and Vice President of India.
 In Order to ensure free, fair, and impartial elections the Commission functions as a permanent self-
governing constitutional body.

Appointment & Tenure of Commissioners

 The Chief Election Commissioner and the Election Commissioner are appointed by the President of
India.
  Each of them holds their offices for a period of 6 years or up to the age of 65 years, whichever comes
first.
 They receive the same perks and pay as Supreme Court Judges.
 The only way a Chief Election Commissioner can be removed from office is upon an order of the
President supported by the Parliament.
 The Election Commissioner or Regional Commissioner can only be removed from office by the Chief
Election Commissioner.

Advisory and Quasi-Judiciary Powers

 The Election Commission of India has advisory jurisdiction in terms of post-election ineligibility of
sitting members of the Parliament and State Legislature.
 Cases, where an individual is found guilty of malpractice at elections by the Supreme Court or High
Courts, are referred to the ECI for its opinion of the said person‟s disqualification. In such cases, the
judgement passed by the ECI is final and binding on the President of India or the Governor as per
jurisdiction.
 The Election Commission of India also has the power to ban any candidate who has not lodged an
account of election expenses by the deadline and as per the law.
 ECI can also remove or reduce the period of disqualification as per the law.

Administrative Powers

 Allotting territorial areas for electoral constituencies in the country

 Organise and amend electoral rolls and register eligible voters
 Inform dates and schedule of elections and scrutinize nomination papers
 Give recognition to political parties and assign election symbols to them.
 ECI appoints the following seats:
o Chief Electoral Officer
o District Election Officer
o Returning Officer
o Electoral Registration Officer

Election Commission Functions

The election commission has been entrusted its functions under part XV of the Indian Constitution and the
People‟s Representation Act, 1951.

 Election Commission of India superintendents, direct and control the entire process of conducting
elections to Parliament and Legislature of every State and to the offices of President and Vice-President
of India.
 The one of the most important function of the commission is to decide the election schedules for the
conduct of periodic and timely elections, whether general or bye-elections.
 It has to organize and periodically amend electoral rolls and to register all qualified voters. It also has to
issue Electronic Photo Identity Card (EPIC).
 It decides on the location polling stations, assignment of voters to the polling stations, location of
counting centres, arrangements to be made in and around polling stations and counting centres and all
allied matters.
Doctrine of Separation of Powers and checks and balances
Separation of powers is a fundamental principle of democratic governance that divides the powers and functions
of a government among different branches or institutions. The idea that government powers should be divided
among separate and distinct authorities has a long history in western constitutionalism.

Three-tier machinery of state government

Legislative

 The main function of the legislature is to enact a law. Enacting a law expresses the will of the State and it
also acts as the wain to the autonomy of the State. It is the basis for the functioning of executive and
judiciary.
 It is spotted as the first place among the three organs because until and unless the law is framed the
functioning of implementing and applying the law can be exercised.
 The judiciary act as the advisory body which means that it can give the suggestions to the legislature about
the framing of new laws and amendment of certain legislation but cannot function it.

Executive

 It is the organs which are responsible for implementing, carrying out or enforcing the will of the state as
explicit by the constituent assembly and the legislature. The executive is the administrative head of the
government.
 It is called as the mainspring of the government because if the executive crack-up, the government exhaust
as it gets imbalanced. In the limited sense, executive includes head of the minister, advisors, departmental
head and his ministers.

Judiciary

 It refers to those public officers whose responsibility is to apply the law framed by the legislature to
individual cases by taking into consideration the principle of natural justice, fairness.
 The Parliament is competent enough to make any law subject to the conditions of Constitution and there are
no restrictions on its law-making powers. The president power and functions are given in the Constitution
itself (Article 62 to Article 72).
 The judiciary is self –dependent in its field and there is no obstruction with its judicial functions either by
Legislature or the Executive.
 The High Court under Article 226 and Article 227 and Supreme Court under Article 32 and Article 136 of
Constitution are given the power of judicial review and any law passed by the legislature can be declared
void by the judiciary if it is inconsistent with Fundamental Rights (Article 13).

In the case of I.C Golakhnath vs State of Punjab, the Constitution brings in actuality the distinct
constitutional entities i.e namely, the Union territories, Union and State. It also has three major instruments
namely, judiciary, executive and legislature. It demarcates their jurisdiction minutely and expects them to
exercise their function without interfering with others functions.

Checks and balances

 The doctrine of separation of powers is a fundamental principle in a democratic government, which entails
dividing the powers of the state into three separate branches: the legislative, executive, and judicial. Checks
and balances are designed to maintain the system of separation of powers, keeping each branch in its place.
 And so, the Indian Constitution does not accept the principle of strict separation of powers rather, it mostly
relies on the principle of checks and balances
 This pairing of separated powers with an intricate system of checks and balances is designed to give
each branch fortifications against encroachments by the others.
 The aim of this principle is to prevent the concentration of unchecked power and to provide for checks
and balances, in which the powers of one branch of government are limited by the powers of another branch
to prevent abuses of power and avoid autocracy.
 The doctrine of checks and balances states that each organ of the government shall act on the other organs in
such a way as to prevent them from becoming totalitarian and to prompt them towards fulfilling their
constitutional obligations.

Judicial Activism, Judicial Restraint

Judicial restraint
 It is a theory of interpretation for the Judiciary. It is a notion which portrays that the judges should limit the
exercise of their powers by not influencing the decision or the proceedings with their own preferences and
perspectives, rather by the constitutional and statutory mandates.
 It propounds that judges must hesitate in striking down the laws until and unless these laws are
unconstitutional.
 As per this procedural doctrine, the judges are required to grant substantial deference in the cases dealing
with constitutional issues and nullify their actions only when there is a coherent violation of constitutional
principles.
 The notion of judicial review should be limited by the courts so that new ideas in policies can be promoted.
Hence, the Judiciary must focus on the following aspects:
1. The intention of the makers of the Constitution
2. Precedents
3. Not indulge in policy-making

 The case of State of Rajasthan vs Union of India (1977) is a landmark judgement where the Court decided
not to indulge into this matter as it involved political inquiry, thereby adhering to the principle of judicial
restraint.
 Also, in S.R.Bommai vs Union of India, the Supreme Court held that the case pertained to political inquiry
and so, the Courts ought not to meddle. Justice Ahmadi stated that it was hard to advance judicially sensible
standards to investigate the political choices and if the courts do it then it would be entering the political
brush and scrutinizing the political knowledge, which the court must evade.

Judicial Activism

 Judicial activism is a principle contrasting to judicial restraint whereby the jurists believe that the judges
should perceive the judicial outlook according to the transforming society.
 As per the Black‟s Law Dictionary, judicial activism is judicial philosophy which motivates judges to depart
from the traditional precedents in favour of progressive and new social policies.
 When the executive does not make decisions in favour of the public, the Judiciary, with the powers vested
by the Constitution, rules to solve such public grievances. This gave rise to the concept of judicial activism
which has given importance to social welfare.
 However, in recent times, the concept of judicial activism has been criticized by the legal fraternity since it
goes against the doctrine of separation of powers by interfering into the fields of the other organs of the
government.
 It also promotes the judges to not give a strict interpretation to the Indian Constitution, thereby reducing the
sanctity of the grundnorm of the nation and opposing the intent of the makers of the Constitution.
 The leading judgment of Maneka Gandhi vs Union of India is an excellent example of judicial activism
wherein the Supreme Court recited „the procedure established by law‟ into Article 21 of the Constitution
 which is repositioned as „due process of law‟ or the procedure that ensures justice, equity and good
conscience.

Article 21 and Judicial Activism

 According to Article 21 of the Indian Constitution, no person shall be deprived of life and liberty except by
the procedure established by law.
 In A.K.Gopalan vs State of Madras, the Supreme Court ordered that not only a procedure established by law
is required for upholding the life and liberty of an individual, but it is quintessential for such procedure to be
just, fair and reasonable. Justice Harilal rejected the contention and interpreted the word „procedure‟ under
Article 21.
 In the 1960s, with the Golaknath case, the country witnessed the protective attitude of the judiciary when it
was ruled that the Parliament itself does not have any right to take away the fundamental rights of the
citizens by way of any further legislation.

Public interest Litigation

 In simple words, means, litigation filed in a court of law, for the protection of Public Interest, such as
pollution, Terrorism, Road safety, constructional hazards etc.
 Public interest litigation is not defined in any statute or in any act. It has been interpreted by judges to
consider the intent of public at large. Although, the main and only focus of such litigation is only Public
Interest there are various areas where a Public interest litigation can be filed. For e.g.
o Violation of basic human rights of the poor
o Content or conduct of government policy
o Compel municipal authorities to perform a public duty.
o Violation of religious rights or other basic fundamental rights
 PIL is a vital tool to enforce the human rights of those people who do not have access to them due to
poverty or such other reasons. It also helps judicially monitor state institutions like protective homes,
prisons, asylums, etc.
 PIL aims to facilitate common people to access the courts to seek redress in legal matters. It is a crucial tool
for social change, accelerating the attainment of justice and law and upholding the rule of law.
 PIL has been critical in bringing about political and social change in India and has been instrumental in
exposing and addressing various issues affecting the public.
 A Public Interest Litigation can be filed before the Supreme Court under Article 32 of the Constitution or
before the High Court of a State under Article 226 of the Constitution under their respective Writ
Jurisdictions.

 Habeas Corpus:
o It is the most valuable writ for personal liberty. Habeas Corpus means, Let us have the body.

 Mandamus:
o Mandamus is a Latin word, which means We Command. Mandamus is an order from a superior
court to a lower court or tribunal or public authority to perform an act, which falls within its duty.

 Quo-Warranto:
o It is a writ issued with a view to restraining a person from acting in a public office to which he is not
entitled.

 Prohibition:
o Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This Writ is
issued when a lower court or a body tries to transgress the limits or powers vested in it.
 Certiorari:
o Literally, Certiorari means to be certified. The Writ of Certiorari is issued by the Supreme Court to
some inferior court or tribunal to transfer the matter to it or to some other superior authority for
proper consideration

Vishaka vs. State of Rajasthan: This case is related to the issue of sexual harassment in the workplace. As a
result, the Vishaka Guidelines came into effect, published in 1997, which provided employers with the
definition of sexual harassment, a list of preventative strategies, and information on filing complaints of
workplace sexual harassment.

M.C. Mehta vs. Union of India: This case is related to pollution in the Ganges basin. The judgment criticised
the local government for giving permission for untreated sewage from Kanpur‟s tanneries to enter the Ganges.
Directions were given to prevent the consequences of water and air pollution on millions of people in the Ganga
basin and emphasised the need for sustainable development.

Independent Judiciary

 Independent judiciary implies that the executive and legislature should not interfere in the work of the
judiciary. The judiciary is expected to be free from all the influences and interests of the government and the
ruling party and should not act on its behalf.
 The judges, in an independent judiciary, should have the freedom to exercise the judicial powers conferred
upon them without any influence, pressure or fear.
 The impartial judges play the most vital role to ensure the independence of the judiciary and act as a
foundation of a fair and impartial system of courts.
 The separation of powers is a fundamental guarantee of the independence of the judiciary. In the decision-
making process, judges should have the freedom to decide cases impartially, in accordance with their
interpretation of laws and facts.
 case of State Of U.P v. Raj Narain & Ors (1975), the Allahabad High Court declared the then Prime
Minister of India Indira Gandhi guilty of electoral malpractices and therefore ordered to set aside the
election.

Institutional or functional judicial independence

 Institutional or functional judicial independence refers to the fact that the other organs of the government
should not interfere in the judiciary by any means. It is solely based on the degree of separation of power.
 The judiciary is free to decide the appointments, transfers and salaries and amenities provided to the judicial
officer or the judges. It is the independence of the judiciary from the other institutions or organs of the State.

Decisional judicial independence

 Decisional judicial independence refers to the idea that a judicial officer should be impartial, neutral and
free from prejudices and any biases while deciding any particular case. The independence of an individual
judge is termed decisional judicial independence.
 It also includes the fact that a judge should decide a case based on the concerning facts and laws only
without being affected by the opinions of the media, politics, pressure or interference or influence from any
quarter and fear of any penalty in their own careers.
Composition of Supreme Court

 Under article 124 of Indian Constitution which provides for „Constitution and establishment of S.C. „clause
(1) states that the Supreme Court of India comprises a Chief Justice and another number of judges as
Parliament by law prescribes.
 Originally, the other number of judges were „seven‟ excluding the Chief Justice of India. Presently, the total
number of judges in the Supreme Court are 34 including the Chief Justice of India.
 For a person to become a judge of Supreme Court
o he must be a citizen of India, and
o must have 5 years of experience as a judge in the High Court; It is not necessary here that this five
year of experience must be in a „single‟ High Court. It can be possible that a person has 2 years‟
experience in some High Court and 3 years of experience in some other High Court; or
o must have 10 years of experience as an advocate in High Court; or
o is in the opinion of the president, a distinguished Jurist.

Appointment of judges

 In Supreme Court Advocates on Record Association v. Union of India, the Court held that the „collegium
system‟ as it existed before NJAC, would again become operative.
 But the Court also ordered for the introduction of appropriate measures in order to improve the 21 years old
„collegium system‟ resultantly the memorandum of the procedure is brought into working i.e now
„collegium system‟ will work as per „MOP‟.
o The MOP may indicate eligibility criteria such as the minimum age
o in order to bring transparency in the appointment process, the appointment procedure of judges as
detailed in MOP ought to be made available on the website of the concerned Court
o The MOP may provide for the establishment of the secretariat for better management of‟ collegium
system‟
o The MOP may provide for an appropriate mechanism to deal with complaints against anyone who is
being considered for appointment as a judge

Article 124(4) mentions those Removal regulations of the Supreme court judge as follows:

 A judge of the Supreme Court shall not be removed from his office except by an order of the President
passed after an address by each House of Parliament supported by a majority of the total membership of
that House and by a majority of not less than two-thirds of the members of that House present and
voting has been presented to the president in same session for such removal on the ground of proved
misbehaviour or incapacity.