PAHUJA LAW ACADEMY

[PREAMBLE TO THE CONSTITUTION]

MAINS-QUESTION

 

1. What is Secularism

 

2. What is the importance of Scularism? How it has been translated into the constitutional provision refers to decided cases.

 

3. Describe the importance of preamble.

 

4. Examine the content of the preamble in light of the decided cases.

 

5. What do you mean by constitutionalism? Describe the important elements of constitutionalism.

 

PAHUJA LAW ACADEMY

[PREAMBLE TO THE CONSTITUTION]

Lecture – 2

 

Text of the Preamble

The Preamble presently reads “We, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

 

JUSTICE, Social, Economic and Political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all;

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

 

Significance

 

Like any other part of the Constitution, the Preamble was also enacted by the Constituent Assembly, but, after the rest of the Constitution was already enacted. The reason for inserting the Preamble at the end was to ensure that it was in conformity with the Constitution as adopted by the Constituent Assembly.

 

The Preamble embodies the basic philosophy and fundamental values-political, moral and religious – on which the Constitution is based. It contains the grand and noble vision of the Constituent Assembly, and reflects the dreams and aspirations of the founding fathers of the Constitution.

The Preamble is the soul of the Constitution. It is a key to the Constitution. It is a proper yardstick with which one can measure the worth of the Constitution.

In the Berubari Union case (1960), the Supreme Court said that the Preamble shows the general purposes behind the several provisions in the Constitution, and is thus a key to the minds of the makers of the Constitution. Further, where the terms used in any article are ambiguous or capable of more than one meaning, some assistance at interpretation may be taken from the objectives enshrined in the Preamble. Despite this, the Supreme Court specifically opined that Preamble is not a part of the Constitution.

In the Kesavananda Bharuti case (1973), the Supreme Court rejected the earlier opinion and held that Preamble is an integral part of the Constitution. It observed that the Preamble is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble.

The Preamble is neither a source of power to legislature nor a prohibition upon the powers of legislature. It is non-justiciable, i.e., its provisions are not enforceable in courts of law.

 

Amendability

 

The question as to whether the Preamble can be amended under Article 368 of the Constitution arose for the first time in the historic case of Kesavananda Bharati (1973). The Supreme Court held that the Preamble is a part of the Constitution and that the Preamble can be amended, subject to the condition that no amendment is done to the ‘basic features’.

 

The Preamble has been amended only once so far, in 1976, by the 42nd Constitutional Amendment Act, which has added three new words – Socialist, Secular and Integrity – to the Preamble.

 

The Preamble: Source of Constitution

 

The Preamble indicates the source from which the Constitution comes viz. the people of India. It is ordained by the people of India through their representatives assembled in a sovereign Constituent Assembly. The preamble declares clearly that it is the people of India who have adopted, enacted and given to themselves the Constitution.

The Preamble embodies the great purposes, objectives and the policy underlying its provisions apart from the basic character of the State which was to come into existence Le. a Sovereign Democratic Republic. The Preamble to the Indian Constitution reads:

&nsp;

“We, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

 

JUSTICE, Social, Economic and Political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all;

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

 

(The words ‘socialist’ and ‘secular’ have been added to the Preamble by the 42nd Amendment Act, 1976. Also, ‘unity of the Nation’ was amended to read ‘unity and integrity of the Nation’).

 

Significance

 

Like any other part of the Constitution, the Preamble was also enacted by the Constituent Assembly, but, after the rest of the Constitution was already enacted. The reason for inserting the Preamble at the end was to ensure that it was in conformity with the Constitution as adopted by the Constituent Assembly.

The Preamble embodies the basic philosophy and fundamental values-political, moral and religious – on which the Constitution is based. It contains the grand and noble vision of the Constituent Assembly, and reflects the dreams and aspirations of the founding fathers of the Constitution.

The Preamble is the soul of the Constitution. It is a key to the Constitution. It is a proper yardstick with which one can measure the worth of the Constitution.

 

The objectives of the Preamble are: Justice, Liberty, Equality and Fraternity. The ultimate goal is that of “securing the dignity of the individual and unity and integrity of the Nation.”

 

The preamble sets out the aims and aspirations of people, and these have been translated into various provisions of Constitution. The people will continue to be governed under the Constitution so long as it is acceptable to them and its provisions promote their aims and aspirations. Following the course of Indian history and pattern of Indian politics, it may be said that, unlike the western society, it is the elite of Indian society rather than people themselves who have set the tone for reformation of society. For example, in field of legislative activity, enactment of a law is not brought about as a culmination of urges of people reflecting changes in socio-economic order, but a measure which was enacted and adopted by Constituent Assembly which took the lead in projecting a system to be identified with aims and aspirations of people (Though Constituent Assembly was not directly elected by people, it doesn’t necessarily mean that it didn’t project the feeling of people). The Constitution though not ratified by people, came into force in 1949.

 

Besides the fact that the preamble provides it is the people of India who have enacted and given to themselves the Constitution, the successful Working of the Constitution and its continued acceptance by people over the years, leads to no other conclusion that the binding force of Constitution is the sovereign will of people of India. If at any stage of history, the people find that Constitution is not serving the needs of society, they may set in motion a machinery which provides for a system suited to aims and aspirations of people. It may, therefore, be rightly observed that the ‘sovereignty’ lies with the people of India — Preamble declares that source of authority under the Constitution is the People of India (Sovereignty, is not located in Parliament, as it is bound by Constitution… which in a sense may appear to be sovereign as it is Supreme Law. However, it is the people who have given Constitution).

 

Thus, the source of the Constitution are the people themselves from whom the Constitution receives its ultimate sanction. The Constitution has not been imposed on them by any external authority, but is the work of the Indians themselves.

 

Utility of Preamble

 

Preamble represents the quintessence, the philosophy, the ideals, the soul or spirit of the entire Constitution of India. It had the stamp of “deep deliberation”, was “marked by precision”: it was “an epitome” of the broad features of the Constitution which were an amplification or concretization of the concepts set out in the Preamble (Madhlokar, J. in Sajjan Singh v State of Rajasthan AIR 1955 SC 845).

 

The Preamble does not grant any power but it gives a direction and purpose to the Constitution. The utility of the Preamble is as follows:

 

(i) It contains the enacting clause which brings the Constitution into force.

(ii) It indicates the source of Constitution.

(iii) It declares the basic type of Government and polity which is sought to be established in the country.

(iv) A statement of objectives of the Constitution – which the legislation is intended to achieve (e.g. implementation of Directive Principles). It epitomizes principles on which the Government is to function.

(v) It serves as a challenge to the people to adhere to the ideals enshrined in it (‘Justice, Liberty, Equality, Fraternity, etc.).

(vi) It is a sort of introduction to the statute and many a times very helpful to understand the policy and legislative intent. It is a ‘Key-Note’ i.e. key to the minds of the framers of the Constitution.

(vii) Several decisions of the Supreme Court pointed out the importance and utility of it. By itself, it is not enforceable in a Court of Law, yet it states objects and aids legal interpretation of the Constitution, where language is ambiguous….. construction which fits the preamble may be preferred (However, the preamble cannot override the express provisions of an Act).

 

Amendment of Preamble

In Golak Nath vs. State of Punjab

Supreme Court held that Preamble to act set out the main objective which the legislation is intended to achieve.

 

In the Berubari Union case (1960),

The Supreme Court said that the Preamble shows the general purposes behind the several provisions in the Constitution, and is thus a key to the minds of the makers of the Constitution. Further, where the terms used in any article are ambiguous or capable of more than one meaning, some assistance at interpretation may be taken from the objectives enshrined in the Preamble. Despite this, the Supreme Court specifically opined that Preamble is not a part of the Constitution. Preamble does not form part of the constitution.

 

Keshavanand’s case (AIR 1973 SC 1467)

The Court held that preamble is part of Constitution and it is of extreme importance; and Constitution should be read and interpreted in the light of grand and noble vision expressed in preamble. In fact the Preamble was relied on in imposing implied limitations on amendment under the Art. 368.

 

Held that since preamble is part of Constitution, it can be amended, but ‘basic features’ in it can’t be amended. As edifice of our Constitution is based upon these features and if they removed, it will not be the ‘same’ Constitution. Amending power can’t change the Constitution in such a way that it ceases to be a ‘Sovereign Democratic Republic’.

 

B.R. Kapur vs.State of Tamil Naidu (2001)

Supreme Court said that the Constitution prevails over the will of people and expressed thought the majority party.

Preamble promote the unity of the integrity of the nation.

 

The Preamble is neither a source of power to legislature nor a prohibition upon the powers of legislature. It is non-justifiable, i.e., its provisions are not enforceable in courts of law.

 

PAHUJA LAW ACADEMY

Constitution of India – Preamble

(Preliminary Questions)

 

1. Which of the following is vested in the Preamble of Indian Constitution

(a) Fundamental philosophy

(b) Making of the constitution

(c) Communist nature

(d) Atheist state

 

2. Who denoted the Preamble as an Identity Card

(a) Jawahar Lal Nehru

(b) B. R. Ambedkar

(c) B. N. Rao

(d) N. A. Palkhiwala

 
3. Which were inserted from the following in 42nd Constitutional Amendment

(a) Socialist, Republic, Secular

(b) Socialist, Secular, Integrity

(c) Socialist, Sovereignty, Republic

(d) Socialist, Republic, Integrity

 
4. Consider the followings in relation to Preamble

1. Origin of the Preamble was from the Objective Resolution presented by Jawahar Lal Nehru on December 13, 1946

2. Preamble cannot be termed as Objective

(a) Only 1

(b) Only 2

(c) Both 1 and 2

(d) Neither 1 nor 2

 
5. Choose from the following the true meaning of Sovereignty

(a) Independence of taking decision in internal matters

(b) Independence of taking decision in external matters

(c) Both (a) and (b)

(d) Neither (a) nor (b)

 
6. The words ‘Freedom’, ‘Equality’ and ‘Fraternity’ were taken from which country

(a) Russia

(b) America

(c) France

(d) Germany

 
7. Consider the followings

1. Preamble was considered as amendable under Keshavananda Bharti v. State of Kerala (1973)

2. Preamble was considered as amendable under Berubari union case (1960)

Which of the above are true?

(a) Only 1

(b) Only 2

(c) Both 1 and 2

(d) Neither 1 nor 2

 
8. Who said: “The Preamble of the Constitution is an ideology/ philosophy of futuristic dream”

(a) Jawahar Lal Nehru

(b) B. R. Ambedkar

(c) K. M. Munshi

(d) Sir Alladi Krishna Swami Ayyar

 
9. Which of the following is related to Constitutional amendment of Preamble

(a) 44th amendment

(b) 42nd amendment

(c) 61st amendment

(d) 69th amendment

 
10. Justice in relation to (Social, economic and political) was taken from

(a) France

(b) Russia

(c) America

(d) Germany

 
11. Who said “Political democracy cannot last unless there lies at the base of it social democracy”

(a) B. N. Rao

(b) B. R. Ambedkar

(c) Jawahar Lal Nehru

(d) Sardar Vallabh bhai Patel

 
12. The Preamble of India contains

(a) Source, nature and object of the Constitution

(b) Source, nature and object of the Dictatorship

(c) Source, nature and object of Religionist

(d) Source, nature and object of Monarchy

 
13. Which nature of Socialism is accepted in India

(a) Fabian Socialism

(b) Communist Socialism

(c) Democratic Socialism

(d) Scientific Socialism

 
14. Which nature of democracy is prevailing in India

(a) Direct democracy

(b) Indirect democracy

(c) Mixed form of direct and indirect democracy

(d) Neither (a) nor (b)

 
15. Objective resolution was presented in constituent assembly on

(a) December 13, 1946

(b) January 23, 1947

(c) January 22, 1946

(d) January 22, 1947

 
16. What was the true constitutional state of Republic of India, when Indian Constitution came into force

(a) Democratic Republic

(b) Sovereignty, secularism, democratic republic

(c) Sovereignty, democratic republic

(d) Sovereignty, Socialist, Secularism

 
17. Which one of the following was not mentioned in Preamble in the year 1975

(a) Fraternity

(b) Sovereignty

(c) Equality

(d) Integrity

 
18. Which of the following states India as Secular State

(a) Fundamental Rights

(b) Preamble

(c) 9th Schedule

(d) Directive Principle of State policy

PAHUJA LAW ACADEMY

UNION AND ITS TERRITORIES

Striking feature no. 4

Indestructible union with destructible states

(Union and Its Territories)

 

Part I of the Constitution comprising Arts. 1 to 4 provides a self-contained mechanism for effecting changes in the constitution of States or Union Territories of the Union of India.

 

By a simple majority and by ordinary legislative process, Parliament may form a new State or alter the boundaries, etc. of existing States and thereby change the political map of India.

 

Art. 1: India – a Union of States, its Territory

 

Art. 1(1) declares that “India, that is Bharat, shall be a Union of States”. The expression “Union” indicates that the Indian federation is not the result of an agreement between the units it constituted of and that the component units have no freedom to secede from the union so created.

 

Art. 1(3) mentions that the “territory of India” comprises of the (a)State territories, (b) Union territories, and (c) such other territories as maybe acquired by the Government of India at any time.

There are at present 29 States and 7 Union Territories in the Union of India. Art. 1(3)(c) does not expressly confer power on the Government of India to acquire new territories, but it is the inherent right of a sovereign State to acquire a foreign territory and no Parliamentary legislation is required for this purpose. Art. 1(3)(c) merely states a factual situation and does not confer a power on Parliament to acquire foreign territory. It is to be noted that only ‘States’ are the members of the Union of India [by virtue of Art.1(1)].

 

In N. Masthan Sahib v Chief Commr., Pondicherry (AIR 1962 SC 797), the Apex Court held that the expression ‘acquired’ [Art. 1 (3)(c)] should be taken to be a reference to ‘acquisition’ as understood in public international law. If there was any public notification, assertion or declaration by which the Government of India had declared or treated a territory as part and parcel of India, the courts would be bound to recognize an ‘acquisition’ as having taken place, with the consequence that the territory would be part of the territory of the Union within Art. 1(3)(c). A statement by the Government of India that it did not consider a particular area to have been acquired by it is binding on the Court.

 

The territory can be said to have acquired when the Indian Union acquires sovereignty. A foreign territory would not come within Art. 1(3)(c)until there is legal transfer of territory to India so as to constitute its “acquisition” in International Law.

 

Art. 2: Admission or Establishment of New States

 

Art. 2 provides: “Parliament may by law admit into the Union, or establish, new States, on such terms and conditions as it thinks fit.”

 

The expression “admit” refers to the admission of a State already inexistence as a ‘State’ i.e. duly organized political community. The term “establish” refers to the creation of a State where none existed before (In Re Berubari case AIR 1960 SC 845).

 

A new State may be admitted into the Union any of the following ways -(i) an inferior category such as a Union Territory, may be raised to the status of full State, (ii) a foreign territory acquired by India may be made a State and admitted into the Union, (iii) a territory separated from an existing State reorganized into a full State. However, Art. 2 deals with admission, etc. of new States, which may be formed of the foreign territories… Art. 2 does not refer to the territories forming part of the existing States (Art. 3 provides for that).

 

Art. 2 confers full discretion on the Parliament as to what terms should be imposed on the new States so admitted into the Union. The expression “by law” indicates that a legislative action on the part of the Parliament is required for the admission of a new State. Therefore, the acquisition of a foreign territory by India automatically makes the said territory a pan of the

 

Indian territory under Art. 1(3)(c), but the said territory can be admitted as a ‘State,’ into the Union, by the process of law, enacted by Parliament under Art. 2.

 

Art. 3 (a): Formation of New States

 

Art. 3(a) empowers the Parliament to form new States, by law. It may do so by any of the following modes –

 

(i) by separation of territory from any State,

(ii) by uniting two or more States,

(iii) by uniting parts of States,

(iv) by uniting any territory to a part of any State.

While Art. 2 relates to admission or establishment of new States which are not part of the Union, Art. 3 provides for the formation of or changes in the existing States including Union Territories. It is important to note that “Foreign Territories” which become pan of India on acquisition may:

(i) Either be admitted into the Union;

(ii) Constituted into new States under Art. 2; or

(iii) Merged into an existing State under Art. 3(a) or 3(b); or

(iv) Formed into a Union Territory.

The Constitution of India does not guarantee the territorial integrity of any State of the Union (In Re Berubari case). Parliament may even cut away the entire area of the State to form a new State. When a new State is formed by uniting two or more States, the States cannot unite in some matters and not to unite in respect of other matters.

It may also be noted that there is nothing in the Constitution which would entitle a new State, after its formation or admission into the Union, to claim complete equality of status with a State existing at the commencement of the Constitution, or formed thereafter under Art. 3.

 

Art. 3(b) to (e): Alteration of Areas, Boundaries or Names of States

The Parliament may, by law, (b) increase the area of any State, (c) diminish the area of any State, (d) alter the boundaries of any State, and (e) alter the name of any State. The Parliamentary legislation is subject to the condition laid down in Proviso to Art. 3.

 

Proviso to Art. 3- “No Bill for this purpose shall be introduced in either House of Parliament except on the recommendation of the President, and such a Bill has to be referred by the President to the Legislature of that State for expressing its views thereon”.

 

The State Legislature is required to express its view within a specified time period as directed by the President. He may extend the time so specified. The Parliament, however, is not bound to accept these views.

 

Once the Bill has been referred to the concerned State Legislatures, and thereafter duly introduced in Parliament, subsequent amendments seeking to make provisions different from those contained in the original Bill at the time of its introduction, are not required to be referred again to the State Legislatures (if the amendments are germane to the subject matter of the original proposal or are not a direct negation thereof). Also, no fresher commendation of the President is necessary for the consideration of the proposed amendment to the Bill (Bubulal Parate v State of Bombay AIR 1960 SC 51).

 

Explanation I to Art. 3- The term “State” in clauses (a) to (e) of Art. 3 include a “Union Territory”. But the term “State” used in Proviso to Art. 3does not include a Union Territory (the reason being that the Union Territories are under the administration of the President himself).

 

Explanation II to Art. 3 – The power conferred on Parliament by clause (a) of Art. 3, to form a new State, include the power to form a new Union Territory also.

 

Art. 4: Supplemental Matters

 

Art. 4(1) directs the Parliament, in case it makes a law under Art.2 or 3, to include therein necessary provisions (supplement, incidental and consequential) for the amendment of First and Fourth Schedules of the Constitution. The First Schedule specifies the number of States which are members of the Union and their respective territories. The Fourth Schedule specifies the number of seats to which each State is entitled to in the Council of States.

 

Art. 4(2) said that laws relatable to Art. 2 or 3 do not amount to constitutional amendments for the purposes of Art. 368. Thus, such laws may be passed by the Parliament by simple majority procedure (subject to the requirements laid down by proviso to Art. 3) and without going through the special majority procedure prescribed by Art. 368.

 

Cession of Territory to a Foreign State

The powers given to Parliament to reorganize States cannot be availed of by it to cede any Indian Territory to a foreign country. This was held so in an advisory opinion in the below-mentioned case.

 

Case Law

IN RE BERUBARI UNION AND EXCHANGEOF ENCLAVES (AIR 1950 SC 858)

[The power to diminish the area of a State does not entitle Parliament to cede Indian territory to a foreign State. Parliament has no power under Art.3(c) to make a law to implement an agreement with the government of a foreign State ceding Indian territory to a foreign State. Area diminished under Art. 3(c) should and must continue to be a part of territory of India.

 

An amendment of Constitution, under Art.368, to modify the First Schedule to the Constitution, is necessary for ceding Indian territory to a foreign State.]

 

PAHUJA LAW ACADEMY

CITIZENSHIP & THE PRESENT CONTROVERSY ON

CITIZENSHIP AMENDMENT BILL

LECTURE NO.- 4

MAINS-QUESTION

 

1. Explain whether a Corporation is a Citizen or not?

 

2. What are the different ways by which a person can acquire Indian Citizenship under The Citizenship Act, 1955?

 

3. What are the conditions given in the Constitution by which a person can acquire Indian Citizenship?

 

4. Differentiate between Domicile and Residence.

 

5. How can the citizenship of a person be terminated?

 

PAHUJA LAW ACADEMY

CITIZENSHIP & THE PRESENT CONTROVERSY ON

CITIZENSHIP AMENDMENT BILL

 

Constitutional Provisions

 

Though India is a Federation having two levels of government, Centre and State- there is only single citizenship, viz the Indian Citizenship, viz the Indian citizenship and no separate State citizenship.

 

Articles 5 to 11 of the Constitution lay down as to who are the citizens of India at the commencement of the Constitution i.e. on 26 January 1950. These citizens have been classified into:

(1) Citizens by Domicile;

(2) Citizens by Migration;

(3) Citizens by Registration

 

CITIZENS BY DOMICILE

Under Article 5, every person having domicile in India at the commencement of the Constitution and fulfilling any of the following conditions, is a citizen of India, viz:

(a) He was born in India;

(b) Either of whose parents was born in India;

(c) Who has been ordinarily resident in India for not less than five years immediately preceding the commencement of the Constitution

 

The basic idea of ‘domicile’ is permanent home’. A person’s domicile is the country which is considered by law to be his permanent home. Residence is the country and the intention to make it his home is necessary to constitute a domicile. The residence in a place by itself is not sufficient to constitute it his domicile. It must be accompanied by the intention to make it his permanent home.

 

As Supreme Court has observed in Central Bank of India v Ram Narain, an intention to reside forever in a country where one has taken up his residence is an essential constituent element for the existence of domicile in that country. The Supreme Court has expounded this theme in Louis De Raedt v Union of India as follows:-

 

For the acquisition of a domicile of choice, it must be shown that the person concerned had a certain state of mind,

the animus manendi. If he claims that he acquired a new domicile at a particular time, he must prove that he had formed the intention of making his permanent home in the country of residence and of continuing to reside there permanently. Residence alone, unaccompanied by this state of mind, is insufficient.

 

CASE LAW:

1) Joshi v Madhya Pradesh

2) Pradeep Jain v Union of India

 

CITIZENS BY MIGRATION

The Independence of India was accompanied by a large scale migration of people from Pakistan. As these people belonged to the territory which ceased to be a part of India after the Independence, they could not be regarded as Indian citizens under Article 5 and therefore, special provisions had to be made for them in the Constitution.

 

Under Article 6, an immigrant from Pakistan became a citizen of India if he, or either of his parents, or any of his grandparents, was born in India (as it was prior independence) and in addition fulfilled either of the following two condition:

 

(a) In case he migrated to India before July 19, 1948, he had been ordinarily resident in India since the date of his migration; or

(b) In case he migrated on or after July 19, 1948, he had been registered as a citizen of India.

 

CITIZENS BY REGISTRATION

According to Article 8, a person who, or either of whose parents, or any of whose grandparents, was born in India (before Independence) but who is ordinarily residing in any country outside India and Pakistan, may register himself as a citizen of India with the diplomatic or consular representative of India in the country of residence.

 

TERMINATION OF CITIZENSHIP

 

Under Article 7, a citizen of India by domicile (Article 5), or by migration (Article 6), ceases to be citizen if he has migrated to Pakistan after March 1, 1947. If, however, after migration to Pakistan, he has returned to India, under a permit of resettlement or permanent return, he can register himself as a citizen of India in the same manner as a person migrating from Pakistan after July 19, 1948.

 

Article 7 thus overrides Articles 5 and 6. Article 7 envisages only those persons who migrated to Pakistan between March 1, 1947 and January 26, 1950. These persons lost their Indian citizenship. The question of citizenship of persons migrating to Pakistan after January 26, 1950, has to be decided under the provisions of the Indian Citizenship Act.

 

DUAL CITIZENSHIP

 

Under Article 9, no person can be a citizen of India under Article 5, 6 and 8, if he has voluntarily acquired the citizenship of a foreign country. The provision thus recognizes the principle that no Indian citizen can claim a dual or plural citizenship. However, this is subject to Parliament’s power under Article 11 to provide for inter alia, the acquisition of citizenship.

 

THE CITIZENSHIP ACT, 1955

 

Article 11 expressly empowers Parliament to make a law to provide for such matters and accordingly, Parliament has enacted the Citizenship Act, 1955 to provide for the acquisition and determination of Indian Citizenship. In connection with this, reference may be made to entry 17 List I which runs as “citizenship, naturalization and aliens”. Thus, Parliament has exhaustive power to legislate with respect to “citizenship”.

 

The Act provides for 5 different ways of acquiring Indian Citizenship viz;

(a) Birth;

(b) Descent;

(c) Registration;

(d) Naturalisation;

(e) Incorporation of some territory into India.

 

CORPORATION NOT A CITIZEN

 

The Corporation is a government company registered under the Indian Companies Act and consists only of the President of India and the Secretary of the Ministry of Commerce as its shareholders. Its status is that of a private limited Company. The Corporation moved the Supreme Court under Article 32 to quash sales tax proceedings against it by a State on the ground that the imposition of the sales tax was illegal and infringed its Fundamental Right guaranteed by Article 19(1)(g).

 

The basic question which arose was whether the ‘Corporation’ was a ‘citizen’ for the freedom under Article 19(1)(g) is available only to a citizen and to none else.

 

The Supreme Court answered the question in negative. The Court argued that the Indian Constitution does not define citizenship. Articles 5 to 9 of the Constitution deal with citizenship in certain circumstances only, but the tenor of these Articles is such that they cannot apply to a juristic person. The Citizenship Act specifically excludes a Company, association, body or individual whether incorporated or not, from the concept of a person under the Act and so from the concept of the Indian citizenship. Thus, under the Constitution, or the Citizenship Act, only a natural person can be a citizen .

 

THE CITIZENSHIP (AMENDMENT) BILL, 2016

1 Short title and commencement:- THE CITIZENSHIP (AMENDMENT) BILL, 2016 A BILL further to amend the Citizenship Act, 1955. BE it enacted by Parliament in the Sixty-seventh Year of the Republic of India as follows:—

 

(1) This Act may be called the Citizenship (Amendment) Act, 2016.

 

(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

 

2. In the Citizenship Act, 1955 (hereinafter referred to as the principal Act), in section 2, in sub-section (1), after clause (b), the following proviso shall be inserted, namely:— “Provided that persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who have been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any order made thereunder, shall not be treated as illegal migrants for the purposes of this Act.”. 57 of 1955. Amendment of section 2. 34 of 1920. 31 of 1946. AS INTRODUCED IN LOK SABHA Bill No. 172 of 2016

 

3. In the principal Act, in section 7D, after clause (d), the following clause shall be inserted, namely:— “(da) the Overseas Citizen of India Cardholder has violated any of the provisions of this Act or provisions of any other law for the time being in force; or”.

 

4. In the principal Act, in the Third Schedule, in clause (d), the following proviso shall be inserted, namely:— ‘Provided that for the persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, the aggregate period of residence or service of a Government in India as required under this clause shall be read as “not less than six years” in place of “not less than eleven years”.’. Amendment of Third Schedule. Amendment of section 7D.

 

STATEMENT OF OBJECTS AND REASONS

The Citizenship Act, 1955 was enacted to provide for the acquisition and determination of Indian citizenship. Under the existing provisions of the Act, persons belonging to the minority communities, such as Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who have either entered into India without valid travel documents or the validity of their documents have expired are regarded as illegal migrants and hence ineligible to apply for Indian citizenship. It is proposed to make them eligible for applying for Indian citizenship. Many persons of Indian origin including persons belonging to the aforesaid minority communities from the aforesaid countries have been applying for citizenship under section 5 of the Act, but are unable to produce proof of their Indian origin. Hence, they are forced to apply for citizenship by naturalisation under section 6 of the Act, which, inter alia, prescribes twelve years residency as qualification for naturalisation in terms of the Third Schedule to the Act. This denies them many opportunities and advantages that may accrue only to the citizens of India, even though they are likely to stay in India permenently. It is proposed to amend the Third Schedule to the Act to make applicants belonging to minority communities from the aforesaid countries eligible for citizenship by naturalisation in seven years instead of the existing twelve years. Presently, there is no specific provision in section 7D of the Act to cancel the registration of Overseas Citizen of India Cardholders who violate any Indian law. It is also proposed to amend the said section 7D, so as to empower the Central Government to cancel registration as Overseas Citizen of India in case of violation of the provisions of the Act or any other law for the time being in force. The Bill seeks to achieve the above objectives. RAJNATH SINGH NEW DELHI; The 15th July, 2016 LOK SABHA ———— A BILL further to amend the Citizenship Act, 1955. ———— (Shri Rajnath Singh, Minister of Home Affairs) GMGIPMRND—1537LS(S-3)—15.07.2016.

 

PAHUJA LAW ACADEMY

CITIZENSHIP & THE PRESENT CONTROVERSY ON

PRELIMINARY QUESTIONS

 

1. Which of the following is not a condition given under Article 5 for a person to be a Citizen of India?.

a) A person who was born in India

b) A person either of whose parents was born in India

c) A person who has been ordinarily resident in India for not less than five years immediately preceding the commencement of the Constitution

d) None of the above

 

2. Which article draws distinction between Domicile and residence?

a) Article 5

b) Article 7

c) Article 9

d) Article 11

 

3. The Termination of Citizenship is guaranteed under:-

a) Article 5

b) Article 7

c) Article 9

d) Article 11

 

4. Which of the following Article guarantees provides for provision of Dual Citizenship?

a) Article 9

b) Article 10

c) Article 11

d) Article 8

 

5. The Citizenship Act, 1955 provides _____ ways for acquiring Indian Citizenship.

a) 3

b) 4

c) 5

d) 7

 

6. Which of the following is correct?

a) Domicile and five years residence are necessary to make a person a citizen.

b) Domicile and three years residence are necessary to make a person a citizen.

c) Only residence is necessary to make a person a citizen.

d) Only Domicile is necessary to make a person a citizen.

 

7. Which of the following has exclusive power to legislate with respect to citizenship?

a) President

b) Parliament

c) Prime Minister

d) Governor

 

8. A boy of 12 years age, who left for Pakistan in 1948, leaving behind his parents in India, came back to India on a Pakistani passport in 1954, again left for Pakistan and came back to India in 1956. Decide.

a) The boy will lose his Indian citizenship due to migration.

b) The boy will not lose his Indian citizenship as his parents are domiciled and reside in India.

c) Since the boy has not attained the majority, thus, he will be considered a citizen of India.

d) Both (b) and (c)

 

9. Which of the following is incorrect?

a) A minor takes the domicile of his father

b) A married woman takes the domicile of her husband

c) A married woman takes the domicile of her father

d) All of the above

 

10. The migration envisaged in Article means coming to India from outside and it must have taken place:-

a) After the commencement of the Constitution

b) Before the commencement of the Constitution

c) During the commencement of the Constitution

d) Any of the above

PAHUJA LAW ACADEMY

FUNDAMENTAL RIGHTS

 

1. Can a person waive any of his Fundamental Rights? Explain with the help of case laws.

 

2. Why Fundamental Rights are called Fundamental?

 

3. What is Doctrine of Severability? Explain with the help of relevant case laws.

 

4. What is Doctrine of Eclipse? Explain with the help of relevant case laws.

 

5. Distinguish between Ordinary Legal Right and Fundamental Rights.

 

6. Discuss the features of Fundamental Rights.

 

7. What are the exceptions of Right to equality?

 

8. Article 20 grants protection against arbitrary and excessive punishment to an accused person, whether citizen or foreigner or legal person like a Company or a Corporation. What are the provisions contained in that direction?

 

9. Explain with the help of case law that the Right to life as embodied in Article 21 is not merely confined to animal existence or survival but it includes within its ambit the right to live with human dignity.

 

10. Distinguish between Writ of Prohibition and Writ of Certiorari.

 

11. Distinguish between Socialistic Principles and Gandhian Principles.

 

FUNDAMENTAL RIGHTS

 

The Fundamental Rights are enshrined in Part III of the Constitution from Articles 12 to 35. In this regard, the framers of the Constitution derived inspiration from the Constitution of USA (i.e., Bill of Rights).

The Fundamental Rights are meant for promoting the ideal of political democracy. They prevent the establishment of an authoritarian and despotic rule in the country, and protect the liberties and freedoms of the people against the invasion by the State. They operate as limitations on the tyranny of the executive and arbitrary laws of the legislature.

Originally, the Constitution provided for seven Fundamental Rights viz,

Right to equality (Articles 14-18)

Right to freedom (Articles 19-22)

Right against exploitation (Articles 23-24)

Right to freedom of religion (Articles 25-28)

Cultural and educational rights (Articles 29-30)

Right to property (Article 31)

Right to constitutional remedies (Article 32)

 

However, the right to property was deleted from the list of Fundamental Rights by the 44th Amendment Act, 1978. It is made a legal right under Article 300-A in Part XII of the Constitution. So at present, there are only six Fundamental Rights.

 

Features of Fundamental Rights

The Fundamental Rights guaranteed by the Constitution are characterised by the following:

Some of them are available only to the citizens while others are available to all persons whether citizens, foreigners or legal persons like corporations or companies.

They are not absolute but qualified. The state can impose reasonable restrictions on them. However, whether such res-trictions are reasonable or not is to be decided by the courts. Thus, they strike a balance between the rights of the individual and those of the society as a whole, between individual liberty and social control.

Most of them are available against the arbitrary action of the State, with a few exceptions like those against the State’s action and against the action of private individuals. When the rights that are available against the State’s action only are violated by the private individuals, there are no constitutional remedies but only ordinary legal remedies.

Some of them are negative in character, that is, place limitations on the authority of the State, while others are positive in nature, conferring certain privileges on the persons.

They are justiciable, allowing persons to move the courts for their enforcement, if and when they are violated.

They are defended and guaranteed by the Supreme Court. Hence, the aggrieved person can directly go to the Supreme Court, not necessarily by way of appeal against the judgment of the high courts.

They are not sacrosanct or permanent. The Parliament can curtail or repeal them but only by a constitutional amendment act and not by an ordinary act. Moreover, this can be done without affecting the ‘basic structure’ of the Constitution.

They can be suspended during the operation of a National Emergency except the rights guaranteed by Articles 20 and 21. Further, the six rights guaranteed by Article 19 can be suspended only when emergency is declared on the grounds of war or external aggression (i.e., external emergency) and not on the ground of armed rebellion (i.e., internal emergency).

Their scope of operation is limited by Article 31A (saving of laws providing for acquisition of estates, etc.), Article 31B (validation of certain acts and regulations included in the 9th Schedule) and Article 31C (saving of laws giving effect to certain directive principles).

Their application to the members of armed forces, para-military forces, police forces, intelligence agencies and analogous services can be restricted or abrogated by the Parliament (Article 33).

Their application can be restricted while martial law is in force in any area. Martial law means ‘military rule’ imposed under abnormal circumstances to restore order (Article 34). It is different from the imposition of national emergency.

Most of them are directly enforceable (self-executory) while a few of them can be enforced on the basis of a law made for giving effect to them. Such a law can be made only by the Parliament and not by state legislatures so that uniformity throughout the country is maintained (Article 35).

Article 12 has defined the term ‘State’ for the purposes of Part III. According to it, the State includes the following:

Government and Parliament of India, that is, executive and legislative organs of the Union government.

Government and legislature of states, that is, executive and legislative organs of state government.

All local authorities, that is, municipalities, panchayats, district boards, improvement trusts, etc. All other authorities, that is, statutory or non-statutory authorities like LIC, ONGC, SAIL, etc.

 

Thus, State has been defined in a wider sense so as to include all its agencies. It is the actions of these agencies that can be challenged in the courts as violating the Fundamental Rights. According to the Supreme Court, even a private body or an agency working as an instrument of the State falls within the meaning of the ’State’ under Article 12.

 

Article 13 declares that all laws that are inconsistent with or in derogation of any of the fundamental rights shall be void. In other words, it expressively provides for the doctrine of judicial review. This power has been conferred on the Supreme Court (Article 32) and the high courts (Article 226) that can declare a law unconstitutional and invalid on the ground of contravention of any of the Fundamental Rights.

 

The term ‘law’ in Article 13 has been given a wide connotation so as to include the following:

Permanent laws enacted by the Parliament or the state legislatures;

Temporary laws like ordinances issued by the president or the state governors;

Statutory instruments in the nature of delegated legislation (executive legislation) like order, bye-law, rule, regulation or notification; and

Non-legislative sources of law, that is, custom or usage having the force of law.

 

Further, Article 13 declares that a constitutional amendment is not a law and hence cannot be challenged. However, the Supreme Court held in the Keshvanand Bharuti case (1973) that a Constitutional amendment can be challenged on the ground that it violates a fundamental right that forms a part of the ’basic structure’ of the Constitution and hence, can be declared as void.

 

Right to Equality (Article 14-18)

Article 14 says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. This provision confers rights on all persons whether citizens or foreigners. Moreover, the word ‘person’ includes legal persons, viz, statutory corporations, companies, registered societies or any other type of legal person.

 

The concept of ‘equality before law’ connotes: (a) the absence of any special privileges in favour of any person, (b) the equal subjection of all persons to the ordinary law of the land administered by ordinary law courts, and (c) no person (whether rich or poor, high or low, official or non-official) is above the law.

 

The Supreme Court held that where equals and unequals are treated differently, Article 14 does not apply. While Article 14 forbids class legislation, it permits reasonable classification of persons, objects and transactions by the law. But the classification should not be arbitrary, artificial or evasive. Rather, it should be based on an intelligible differential and substantial distinction.

 

Further, the Supreme Court held that the ‘Rule of Law’ as embodied in Article 14 is a ‘basic feature’ of the constitution. Hence, it cannot be destroyed even by an amendment.

 

Exceptions to Equality

The rule of equality before law is not absolute and there are constitutional and other exceptions to it. These are:

The President of India and the Governor of States enjoy the following immunities (Article 361):

The President or the Governor is not answerable to any court for the exercise and performance of the powers and duties of his office.

No criminal proceedings shall be instituted or continued against the President or the Governor in any court during his term of office.

 

No person shall be liable to any civil or criminal proceedings in any court in respect of the publication in a newspaper (or by radio or television) of a substantially true report of any proceedings of either House of Parliament or either House of the Legislature of a State (Article 361-A).

No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof (Article 105).

Article 31-C is an exception to Article 14. It provides that the laws made by the state for implementing the Directive Principles contained in clause (b) or clause (c) of Article 39 cannot be challenged on the ground that they are violative of Article 14. The Supreme Court held that “where Article 31-C comes in, Article 14 goes out”.

The foreign sovereigns (rulers), ambassadors, diplomats, UNO and its agencies enjoy immunity from criminal and civil proceedings.

 

Article 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. The word ‘discrimination’ means ‘to make an adverse distinction with regard to’ or ‘to distinguish unfavourably from others’. The use of the word ‘only’ connotes that discrimination on other grounds is not prohibited.

 

The second provision of Article 15 says that no citizen shall be subjected to any disability, liability, restriction or condition on grounds only of religion, race, caste, sex, or place of birth with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, road and places of public resort maintained wholly or partly by State funds or dedicated to the use of general public. This provision prohibits discrimination both by the State and private individuals, while the former provision prohibits discrimination only by the State.

 

There are three exceptions to this general rule of non-discrimination:

 

The state is permitted to make any special provision for women and children. For example, reservation of seats for women in local bodies or provision of tree education for children.

The state is permitted to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes. For example, reservation of seats or fee concessions in public educational institutions.

The state is empowered to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes or the scheduled tribes regarding their admission to educational institutions including private educational institutions, whether aided or unaided by the state, except the minority educational institutions.

 

The last provision was added by the 93rd Amendment Act of 2005. In order to give effect to this provision, the Centre enacted the Central Educational Institutions (Reservation in Admission) Act, 2006, providing a quota of 27% tor candidates belonging to the Other Backward Classes (OBCs) in all central higher educational institutions including the Indian Institutes of Technology (IITs) and the Indian Institutes of Management (IIMs).

 

Article 15,

 

103rd Constitutional Amendment Act, 2018 “Economic Reservation in India”

An amendment was made in the article in 2018 after the government announced 10% reservation in colleges and universities for economically weaker sections. It states, “Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.

The Constitutional (103rd Amendment) Act got the assent of President of India on 13th January, 2018. The bill was passed in Lok Sabha by 323 members voting in favor and 3 members against the bill. It was subsequently passed by Rajya Sabha with 165 members in the favor and only 7 members against the bill.

It provides reservation of jobs in central government jobs as well as government educational institutions. It is also applicable on admissions to private higher educational institutions.

It applies to citizens belonging to the economically weaker sections from the upper castes.

This reservation is “in addition to the existing reservations and subject to a maximum of ten per cent of the total seats in each category”.

The Statement of Objects and Reasons of the Bill states that people from economically weaker sections of the society have largely remained excluded from attending the higher educational institutions and public employment on account of their financial incapacity to compete with the persons who are economically more privileged.

The bill states that it is drafted with a will to mandate Article 46 of the Constitution of India, a Directive Principle that urges the government to protect the educational and economic interests of the weaker sections of society. While socially disadvantaged sections have enjoyed participation in the employment in the services of the state, no such benefit was provided to the economically weaker sections.

 

AMENDED ARTICLES

Article 15 (6) is added to provide reservations to economically weaker sections for admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30. The amendment aims to provide reservation to those who do not fall in 15 (5) and 15(4) (effectively, SCs, STs and OBCs).

Article 16 (6) is added to provide reservations to people from economically weaker sections in government posts.

An explanation states that “economic weakness” shall be decided on the basis of “family income” and other “indicators of economic disadvantage.”

 

Article 16, provides for equality of opportunity for all citizens in matters of employment or appointment to any office under the State. No citizen can be discriminated against or be ineligible for any employment or office under the State on grounds of only religion, race, caste, sex, descent, place of birth or residence.

There are three exceptions to this general rule of equality of opportunity in public employment:

Parliament can prescribe residence as a condition for certain employment or appointment in a state or union territory or local authority or other authority.

The State can provide for reservation of appointments or posts in favour of any backward class that is not adequately represented in the state services.

A law can provide that the incumbent of an office related to religious or denominational institution or a member of its governing body should belong to the particular religion or denomination.

In the famous Mundal case (1992), the scope and extent of Article 16(4), which provides for reservation of jobs in favour of backward classes, has been examined thoroughly by the Supreme Court. Though the Court has rejected the additional reservation of 10% for poorer sections of higher castes, it upheld the constitutional validity of 27% reservation for the OBCs with certain conditions, viz,

The advanced sections among the OBCs (the creamy layer) should be excluded from the list of beneficiaries of reservation.

No reservation in promotions; reservation should be confined to initial appointments only. Any existing reservation in promotions can continue for five years only (i.e., upto 1997).

The total reserved quota should not exceed 50% except in some extraordinary situations. This rule should be applied every year.

The ‘carry forward rule’ in case of unfilled (backlog) vacancies is valid. But it should not violate 50% rule.

A permanent statutory body should be established to examine complaints of over-inclusion and under-inclusion in the list of OBCs.

 

Article 17 abolishes ‘untouchability’ and forbids its practice in any form. The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law.

 

In 1976, the Untouchability (Offences) Act, 1955 has been comprehensively amended and renamed as the Protection of Civil Rights Act, 1955 to enlarge the scope and make penal provisions more stringent. The act defines civil right as any right accruing to a person by reason of the abolition of untouchability by Article 17 of the Constitution. A person convicted of the offence of ‘untouchability’ is dis-qualified for election to the Parliament or state legislature.

 

The Supreme Court held that the right under Article 17 is available against private individuals and it is the constitutional obligation of the State to take necessary action to ensure that this right is not violated.

 

Article 18 abolishes titles and makes four provisions in that regard:

 

It prohibits the state from conferring any title (except a military or academic distinction) on anybody, whether a citizen or a foreigner.

It prohibits a citizen of India from accepting any title from any foreign state.

A foreigner holding any office of profit or trust under the state cannot accept any title from any foreign state without the consent of the president.

No citizen or foreigner holding any office of profit or trust under the State is to accept any present, emolument or office from or under any foreign State without the consent of the president.

 

In 1996, the Supreme Court upheld the constitutional validity of the National Awards – Bharat Rama, Padma Vibhushan, Padma Bhushan and Padma Sri. It ruled that these awards do not amount to ‘titles’ within the meaning of Article 18 that prohibits only hereditary titles of nobility. However, it also ruled that they should not be used as suffixes or prefixes to the names of awardees. Otherwise, they should forfeit the awards.

 

Right to Freedom (Article 19-22)

Article 19 guarantees to all citizens the six rights. These are:

 

Right to freedom of speech and expression.

Right to assemble peaceably and without arms.

Right to form associations or unions or co-operative societies.

Right to move freely throughout the territory of India.

Right to reside and settle in any part of the territory of India.

Right to practice any profession or to carry on any occupation, trade or business.

These six rights are protected against only state action and not private individuals. Moreover, these rights are available only to the citizens and to shareholders of a company but not to foreigners or legal persons like companies or corporations, etc.

 

The State can impose ‘reasonable’ restrictions on the enjoyment of these six rights only on the grounds mentioned in the Article 19 itself and not on any other grounds.

 

Freedom of Speech and Expression: It implies that every citizen has the right to express his views, opinions, belief and convictions freely by word of mouth, writing, printing, picturing or in any other manner. The Supreme Court held that the freedom of speech and expression includes the following:

 

Right to propagate one’s views as well as views of others.

Freedom of the press.

Freedom of commercial advertisements.

Right against tapping of telephonic conversation.

Right to telecast, that is, government has no monopoly on electronic media.

Right against bundh called by a political party or organisation.

Right to know about government activities.

Freedom of silence.

Right against imposition of pre-censorship on a newspaper.

Right to demonstration or picketing but not right to strike.

 

The State can impose reasonable restrictions on the exercise of the freedom of speech and expression on the grounds of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, and incitement to an offence.

 

Freedom of Assembly: Every citizen has the right to assemble peaceably and without arms. It includes the right to hold public meetings, demonstrations and take out processions. This freedom can be exercised only on public land and the assembly must be peaceful and unarmed. This provision does not protect violent, disorderly, riotous assemblies, or one that causes breach of public peace or one that involves arms. This right does not include the right to strike. The State can impose reasonable restrictions on the exercise of right of assembly on two grounds, namely, sovereignty and integrity of India and public order including the maintenance of traffic in the area concerned.

 

Freedom of Association: All citizens have the right to form associations or unions or co-operative societies. It includes the right to form political parties, companies, partnership firms, societies, clubs organisations, trade unions or anybody of persons. It not only includes the right to start an association or union but also to continue with the association or union as such. Further, it covers the negative right of not to form or join an association or union.

 

Reasonable restrictions can be imposed on the exercise of this right by the State on the grounds of sovereignty and integrity of India, public order and morality. However, the right to obtain recognition of the association is not a fundamental right.

 

The Supreme Court held that the trade unions have no guaranteed right to effective bargaining or right to strike or right to declare a lock-out. The right to strike can be controlled by an appropriate industrial law.

 

Freedom of Movement: This freedom entitles every citizen to move freely throughout the territory of the country. He can move freely from one state to another or from one place to another within a state. This right underline the idea that India is one unit so far as the citizens are concerned. Thus, the purpose is to promote national feeling and not parochialism.

 

The grounds of imposing reasonable restrictions on this freedom are (two, namely, the interests of general public and the protection of interests of any scheduled tribe.)The entry of outsiders in tribal areas is restricted to protect the distinctive culture, language, customs and manners of scheduled tribes and to safeguard their traditional vocation and properties against exploitation.

 

The freedom of movement has two dimensions, viz, internal (right to move inside the country) and external (right to move out of the country and right to come back to the country). Article 19 protects only the first dimension. The second dimension is dealt by Article 21 (right to life and personal liberty).

 

Freedom of Residence: Every citizen has the right to reside and settle in any part of the territory of the country. This right has two parts: (a) the right to reside in any part of the country, which means to stay at any place temporarily, and (b) the right to settle in any part of the country, which means to set up a home or domicile at any place permanently.

 

The State can impose reasonable restrictions on the exercise of this right on two grounds, namely, the interest of general public and the protection of interests of any scheduled tribes.

 

Freedom of Profession, etc.: All citizens are given the right to practice any profession or to carry on any occupation, trade or business. This right is very wide as it covers all the means of earning one’s livelihood.

 

The State can impose reasonable restrictions on the exercise of this right in the interest of the general public. Further, the State is empowered to:

 

prescribe professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business;

carry on by itself any trade, business, industry or service whether to the exclusion (complete or partial) of citizens or otherwise.

 

Article 20 grants protection against arbitrary and excessive punishment to an accused person, whether citizen or foreigner or legal person like a company or a corporation. It contains three provisions in that direction:

 

No ex-post-facto law: No person ’ shall be (i) convicted of any offence except for violation of a law in force at the time of the commission of the act, nor (ii) subjected to a penalty greater than that prescribed by the law in force at the time of the commission of the act.

No double jeopardy: No person shall be prosecuted and punished for the same offence more than once.

No self-incrimination: No person accused of any offence shall be compelled to be a witness against himself.

 

Article 21 declares that no person shall be deprived of his life or personal liberty except according to procedure established by law. This right is available to both citizens and non-citizens.

 

The Supreme court in the Menaka case (1978) held that the ’right to life’ as embodied in Article 21 is not merely confined to animal existence or survival but it includes within its ambit the right to live with human dignity and all those aspects of life which go to make a man’s life meaningful, complete and worth living. It also ruled that the expression ‘Personal Liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights that go to constitute the personal liberties of a man.

 

The Supreme Court has declared the following rights as part of Article 21:

 

Right to live with human dignity.

Right to decent environment including pollution free water and air and protection against hazardous industries.

Right to livelihood.

Right to privacy.

Right to health.

Right to free education up to 14 years of age.

Right to free legal aid.

Right to information.

 

Article 21A declares that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the State may determine. Thus, this provision makes only elementary education a Fundamental Right and not higher or professional education. This provision was added by the 86th Constitutional Amendment Act of 2002.

 

In pursuance of Article 21A, the Parliament enacted the Right of Children to Free and Compulsory Education (RTE) Act, 2009. This Act seeks to provide that every child has a right to be provided full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards.

 

Article 22 grants protection to persons who are arrested or detained. Detention is of two types namely, punitive and preventive. Punitive detention is to punish a person for an offence committed by him after trial and conviction in a court. Preventive detention, on the other hand, means detention of a person without trial and conviction by a court. Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the near future. Thus, preventive detention is only a precautionary measure and based on suspicion.

 

The Article 22 has two parts- the first part deals with the cases of ordinary law and the second part deals with the cases of preventive detention law.

 

The first part of Article 22 confers the following rights on a person who is arrested or detained under an ordinary law;

     

Right to be informed of the grounds of arrest.

     

Right to consult and be defended by legal practitioner.

     

Right to be produced before a magistrate within 24 hours, excluding the journey time.

     

Right to be released after 24 hours unless the magistrate authorises further detention.

The second part of Article 22 grants protection to persons who are arrested or detained under a preventive detention law. This protection is available to both citizens as well as aliens and includes the following:

The detention of a person cannot exceed three months unless an advisory board reports sufficient cause for extended detention. The board is to consist of judges of a high court.

 The grounds of detention should be communicated to the detenu. However, the facts considered to be against the public interest need not be disclosed.

The detenu should be afforded an opportunity to make a representation against the detention order.

 

Article 22 also authorises the Parliament to prescribe the maximum period for which a person can be detained in any classes of cases under a preventive detention law.

 

Some of the preventive detention laws made by the Parliament are: Maintenance of Internal Security Act (MISA), 1971, National Security Act (NASA), 1980, Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985, Prevention of Terrorism Act (POTA), 2002 etc.

 

Right Against Exploitation (Article 23-24)

Article 23 prohibits traffic human beings, begar (forced labour and other similar forms of forced labour. Any contravention of this provision shall be an offence punishable in accordance with law. This right is available to both citizens and non-citizens. It protects the individual not only against the State but also against private persons.

 

The expression ‘traffic in human beings’ include (a) selling and buying of men, women and children like goods; (b) immoral traffic in women and children, including prostitution; (c) devadasis; and (d) slavery. To punish these acts, the Parliament has made the Immoral Traffic (Prevention) Act13, 1956.

 

Article 23 also provides for an exception to this provision. It permits the State to impose compulsory service for public purposes, as for example, military service or social service, for which it is not bound to pay. However, in imposing such service, the State is not permitted to make any discrimination on grounds only of religion, race, caste or class.

 

Article 24 prohibits the employment of children below the age of 14 years in any factory, mine or other hazardous activities like construction work or railway. But it does not prohibit their employment in any harmless or innocent work. The Child Labour (Prohibition and Regulation) Act, 1986, is the most important law in this direction.

 

The Commissions for Protection of Child Rights Act, 2005 was enacted to provide for the establishment of a National Commission and State Commissions for Protection of Child Rights and Children’s Courts for providing speedy trial of offences against children or of violation of child rights.

 

Right To Freedom of Religion (Article 25-28)

 

Article 25 says that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion. The implications of these are:

Freedom of conscience: Inner freedom of an individual to mould his relation with God or Creatures in whatever way he desires.

Right to profess: Declaration of one’s religious beliefs and faith openly and freely.

Right to practice: Performance of religious worship, rituals, ceremonies and exhibition of beliefs and ideas.

Right to propagate: Transmission and dissemination of one’s religious beliefs to others or exposition of the tenets of one’s religion. But, it does not include a right to convert another person to one’s own religion. Forcible conversions impinge on the ‘freedom of conscience’ guaranteed to all the persons alike.

Article 26 According to this article, every religious denomination or any of its section shall have the following rights:

Right to establish and maintain institutions for religious and charitable purposes;

Right to manage its own affairs in matters of religion;

Right to own and acquire movable and immovable property; and

Right to administer such property in accordance with law.

 

Article 25 guarantees rights of individuals, while Article 26 guarantees rights of religious denominations or their sections.

 

Article 27 lays down that no person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination. In other words, the State should not spend the public money collected by way of tax for the promotion or maintenance of any particular religion This provision prohibits the State from favouring, patronising and supporting one religion over the other. This provision prohibits only levy of a tax and not a tee. This is because the purpose of a tee is to control secular administration of religious institutions and not to promote or maintain religion.

 

Article 28 Under this article, no religious instruction shall be provided in any educational institution wholly maintained out of State funds. However, this provision shall not apply to an educational institution administered by the State but established under any endowment or trust, requiring imparting of religious instruction in such institution.

 

Further, no person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to attend any religious instruction or worship in that institution without his consent. In case of a minor, the consent of his guardian is needed.

 

Cultural and Educational Rights (Article 29-30)

Article 29 provides that any section of the citizens residing in any part of India having a distinct language, script or culture of its own, shall have the right to conserve the same. Further, no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, or language.

 

Article 29 grants protection to both religious minorities as well as linguistic minorities. However, the Supreme Court held that the scope of this article is not necessarily restricted to minorities only, as it is commonly assumed to be. This is because of the use of words ’section of citizens’ in the Article that include minorities as well as majority.

 

Article 30 grants the following rights to minorities, whether religious or linguistic:

 

All minorities shall have the right to establish and administer educational institutions of their choice.

The compensation amount fixed by the State for the compulsory acquisition of any property of a minority educational institution shall not restrict or abrogate the right guaranteed to them.

In granting aid, the State shall not discriminate against any educational institution managed by a minority.

 

Thus, the protection under Article 30 is confined only to minorities (religious or linguistic) and does not extend to any section of citizens (as under Article 29). However, the term ’minority’ has not been defined anywhere in the Constitution.

 

The right under Article 30 also includes the right of a minority to impart education to its children in its own language.

 

Right to Constitutional Remedies (Article 32)

A mere declaration of fundamental rights in the Constitution is meaningless, useless and worthless without providing an effective machinery for their enforcement, if and when they are violated. Hence, Article 32 confers the right to remedies for the enforcement of the fundamental rights of an aggrieved citizen. In other words, the right to get the Fundamental Rights protected is in itself a fundamental right. It contains the following four provisions:

The right to more the Supreme Court by appropriate proceedings for the enforcement of the Fundamental Rights is guaranteed.

The Supreme Court shall have power to awe directions or orders or writs for so enforcement of any of the fundamental rights. The writs issued may include habeas corpus mandamus, prohibition, certiorari and qua-warranto.

Parliament an empower any other court to issue directions, orders and writs of all kinds. However, this can be done without prejudice to the above powers conferred on the Supreme Court Any other court here does not include high courts because Article 226 has already conferred these powers on the high courts.

The right to move the Supreme Court shall not be suspended except as otherwise provided for by the Constitution Thus the Constitution provides that the President can suspend the right to move any court for the enforcement of the fundamental rights during a national emergency (Article 359).

 

It is thus clear that the Supreme Court has been constituted as the defender and guarantor of the fundamental rights of the citizens. It has been vested with the ‘original’ and ‘wide’ powers for that purpose Original, because an aggrieved citizen can directly go to the Supreme Court, not necessarily by way of appeal Wide, because its power is not restricted to issuing of orders or directions but also writs of all kinds.

 

In case of the enforcement of Fundamental Rights, the jurisdiction of the Supreme Court is original but not exclusive. It is concurrent with the jurisdiction of the high court under Article 226. It vests original powers in the high court to issue directions, orders and writs of all kinds for the enforcement of the Fundamental Rights. It means when the Fundamental Rights of a citizen are violated, the aggrieved party has the option of moving either the high court or the Supreme Court directly.

 

The writ jurisdiction of the Supreme Court differs from that of a high court in three respects:

The Supreme Court can issue writs only for the enforcement of fundamental rights whereas a high court can issue writs not only for the enforcement of Fundamental Rights but also for any other purpose.

The Supreme Court can issue writs against a person or government throughout the territory of India whereas a high court can issue writs against a person residing or against a government or authority located within its territorial jurisdiction only or outside its territorial jurisdiction only if the cause of action arises within its territorial jurisdiction.

A remedy under Article 32 is in itself a Fundamental Right and hence, the Supreme Court may not refuse to exercise its writ jurisdiction. On the other hand, a remedy under Article 226 is discretionary and hence, a high court may refuse to exercise its writ jurisdiction.

 

Different kinds of writs mentioned in Articles 32 and 226 of the Constitution are:

 

Habeas Corpus: It is an order issued by the court to a person who has detained another person, to produce the body of the latter before it. The court then examines the cause and legality of detention. It would set the detained person free, if the detention is found to be illegal. Thus, this writ is a bulwark of individual liberty against arbitrary detention.

 

The writ of habeas corpus can be issued against both public authorities as well as private individuals. The writ, on the other hand, is not issued where the (a) detention is lawful, (b) the proceeding is for contempt of a legislature or a court, (c) detention is by a competent court, and (d) detention is outside the jurisdiction of the court.

 

Mandamus: It is a command issued by the court to a public official asking him to perform his official duties that he has failed or refused to perform. It can also be issued against any public body, a corporation, an inferior court, a tribunal or government for the same purpose.

 

Prohibition: It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess. Thus, unlike mandamus that directs activity, the prohibition directs inactivity.

 

The writ of prohibition can be issued only against judicial and quasi-judicial authorities. It is not available against administrative authorities, legislative bodies, and private individuals or bodies.

 

Certiorari: It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case. It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law. Thus, unlike prohibition, which is only preventive, certiorari is both preventive as well as curative.

 

Qua-Warranto: It is issued by the court to enquire into the legality of claim of a person to a public office. Hence, it prevents illegal usurpation of public office by a person.

 

The writ can be issued only in case of a substantive public office of a permanent character created by a statute or by the Constitution. It cannot be issued in cases of ministerial office or private office. Unlike the other four writs, this can be sought by any interested person and not necessarily by the aggrieved person.

 

Article 33 empowers the Parliament to restrict or abrogate the fundamental rights of the members of armed forces, paramilitary forces, police forces, intelligence agencies and analogous forces. The objective of this provision is to ensure the proper discharge of their duties and the maintenance of discipline among them. The power to make laws under Article 33 is conferred only on Parliament and not on state legislatures.

 

Article 34 provides for the restrictions on fundamental rights while martial law is in force in any area within the territory of India. It empowers the Parliament to indemnify any government servant or any other person for any act done by him in connection with the maintenance or restoration of order in any area where martial law was in force. The Parliament can also validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.

 

The Act of Indemnity made by the Parliament cannot be challenged in any court on the ground of contravention of any of the fundamental rights.

 

Article 35 lays down that the power to make laws, to give effect to certain specified fundamental rights shall vest only in the Parliament and not in the state legislatures. This provision ensures that there is uniformity throughout India with regard to the nature of those fundamental rights and punishment for their infringement.

 

Directive Principles of State Policy

 

Introduction

DPSP are the constitutional instructions or recommendations to the State in legislative executive and administrative matters.

The Directive Principles resemble the ‘Instrument of Instructions’ enumerated in the Government of India Act of 1935.

DPSP constitutes a very comprehensive economic, social and political programme for a modern democratic State. They aim at realising the ideals of justice, liberty, equality and fraternity. They embody the concept of a ‘welfare state’ and not that of a ‘police state’.

 Though they are non-justiciable, (Article 37) itself says that these principles are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

It helps the courts in examining and determining the constitutional validity of a law.

 

Classification of the Directive Principles

The Constitution does not contain any classification of Directive Principles, however they are bifurcated based on different ideologies:

 

Socialistic Principles

Aims at providing social and economic justice, and set the path towards welfare state.

 

To promote the welfare of the people by securing a social order permeated by justice (Article 38).

To secure the right to adequate means of livelihood for all citizens (Article 39).

To promote equal justice and to provide free legal aid to the poor (Article 39A).

To secure the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement (Article 41).

To raise the level of nutrition and the standard of living of people and to improve public health (Article 47).

 

Gandhian Principles

Organise village panchayats and endow them with powers and authority to enable them to function as units of self-government (Article 40).

To promote cottage industries (Article 43).

To promote voluntary formation autonomous functioning, democratic control and professional management of co-operative societies (Article 43B).

To promote the educational and economic interests of SCs, STs, and other weaker sections of the society and to protect them from social injustice and exploitation (Article 46).

To prohibit the consumption of intoxicating drinks and drugs which are injurious to health (Article 47).

To prohibit the slaughter of cows, calves and other milch and draught cattle and to improve their breeds (Article 48).

Important DPSPs

 

Liberal-Intellectual Principles

They direct the state:

 

To secure for all citizens a uniform civil code throughout the country (Article 44).

To provide early childhood care and education for all children until they complete the age of six years (Article 45).

To organise agriculture and animal husbandry on modern and scientific lines (Article 48).

To protect and improve the environment and to safeguard forests and wild life (Article 48 A).

To protect monuments, places and objects of artistic or historic interest which are declared to be of national importance (Article 49).

To separate the judiciary from the executive in the public services of the State (Article 50).

To promote international peace and security and maintain just and honourable relations between nations; to foster respect for international law and treaty obligations, and to encourage settlement of international disputes by arbitration (Article 51).

 

New Directive Principles

They were added with the 42nd Amendment Act of 1976 and require the state to:

 

44th Amendment Act of 1978 man dated the State to minimise inequalities in income, status, facilities and opportunities (Article 38).

 

86th Amendment Act of 2002 changed the subject-matter of Article 45 and made elementary education a fundamental right under Article 21A.

 

The 97th Amendment Act of 2011 added a new Directive Principle relating to co-operative societies. State to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies.

 

secure opportunities for health development of children (Article 39).

promote equal justice and to provide free legal aid to the poor (Article 39A).

take steps to secure the participation of workers in the management of industries. (Article 43A)

protect and improve the environment and to safeguard forests and wild life (Article 48A).

 

Relevance

They impose a moral obligation on the state authorities for their application, but the real force behind them is political, that is, public opinion.

Directive Principles was made non-justiciable and legally non-enforceable because:

Country did not possess sufficient financial resources.

The presence of vast diversity.

 

Utility

The Directives are the life giving provisions of the Constitution. They ensure that they constitute the philosophy of social justice in all the precepts for the authorities of the state.

 

They have sewed as useful beacon-lights to the courts helping the courts in exercising their power of judicial review, the power to determine the constitutional validity of a law.

They amplify the Preamble.

 

The present position is the Fundamental Rights enjoy supremacy over the Directive Principles. This does not mean that the Directive Principles cannot be implemented.

 

Fundamental Duties

 

Introduction

Fundamental duties were incorporated in the Constitution in 1976, the fundamental duties for citizens. In 2002, one more Fundamental Duty was added.

The Fundamental Duties in the Indian Constitution are inspired by the Constitution of erstwhile USSR.

 

The need and necessity of Fundamental Duties was felt during the operation of the internal emergency (1975-1977), so in 1976 Sardar Swaran Singh Committee to make recommendations about fundamental duties was constituted. The Congress Government at Centre accepted these recommendations and enacted the 42nd Constitutional Amendment Act in 1976. This amendment added a new part, namely, Part IVA to the Constitution with only one article 51A.

 

List of Fundamental Duties

 

According to Article 51 A, it shall be the duty of every citizen of India:

 

(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

(b) to cherish and follow the noble ideals that inspired the national struggle for freedom;

(c) to uphold and protect the sovereignty, unity and integrity of India;

(d) to defend the country and render national service when called upon to do so;

(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities and to renounce practices derogatory to the dignity of women;

(f) to value and preserve the rich heritage of the country’s composite culture;

(g) to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures;

(h) to develop scientific temper, humanism and the spirit of inquiry and reform;

(i) to safeguard public property and to abjure violence;

(j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement; and

(k) to provide opportunities for education to his child or ward between the age of six and fourteen years which was added by the 86th Constitutional Amendment Act, 2002.

 

Features

Some of them are moral duties while others are civic duties.

They essentially contain just a codification of tasks integral to the Indian way of life.

They are confined to citizens only and do not extend to foreigners.

The Constitution does not provide for their direct enforcement by the courts since there is not legal sanction against their violation. However, the Parliament is free to enforce them by suitable legislation.

 

Significance

In spite of criticisms and opposition, the fundamental duties are considered significant because they

 

serve as a reminder to the citizens to be conscious of duties they owe to their country,

serve as a warning against the anti-national and antisocial activities

serve as a source of inspiration for the citizens and promote a sense of discipline and commitment among them.

 

helps the courts in examining and determining the constitutional validity of a law.

 

Striking feature no. 6

 

“Our constitution strikes a balance between political, social, economic democracy, between the rights of individual on the one hand an interest of the society and needs of the security of the state, on the other, and incorporates the dictum that only in theworld of duties, that rights have significance”.

 

Fundamental Rights: General

(Part III)

 

Why Fundamental rights are called Fundamental?

 

Fundamental rights are rights having a noble pedigree. They are natural rights which are in the nature of external conditions necessary for the greatest possible unfolding of the capacities of a human being. These secured and guaranteed conditions are called fundamental rights. It is generally agreed that these natural rights are inherent in man and cannot be taken away by the State. Natural rights command higher sanctity than other rights e.g. rights based on contract because they exist independent of any Act. Besides it also incorporates legal explanation. As a matter of fact part III, part IV and part IVA, constitute one organic whole.

 

Part III of the Constitution, which contains fundamental rights, has been described as the Magna Carla of India. These fundamental rights substantially cover all the traditional civil and political rights enumerated in the Universal Declaration of Human Rights. Dr. Ambedkar described them as “the most criticized part” of the Constitution. Gajendra gadkar, J. described them as the “very foundation and comer stone of the democratic way of life ushered in this country by the Constitution”.

 

Fundamental rights were deemed essential to protect the rights and liberties of the people against the encroachment of the power delegated by them to their government. They are limitations upon all the powers of the government. In Maneka Gandhi case, Bhagwati J. observed: “These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. They weave a ‘pattern of guarantee’ on the basic structure of human rights, and impose negative obligations on the State not to encroach on individual liberty in its various dimensions.”

 

These rights are regarded as fundamental because they are most essential for the attainment by the individual of his full intellectual, moral and spiritual status. The object behind the inclusion of them in the Constitution is to establish ‘a government of law and not of man’. The object is to establish rule of law.

 

Restrictions or Suspension of Fundamental Rights

 

Absolute and unrestricted individual rights do not, and cannot exist in any modern State. The Constitution prescribes ‘reasonable’ restrictions to be imposed on individuals liberties in the interest of society?’ in A.K. Gopalan v State of Madras (AIR 1950 SC27), Mukherjee, J., observed: “There cannot be any such thing as absolute and uncontrolled liberty wholly freed from restraint, for that would lead to anarchy and disorder. The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority essential to the safety, health, peace, general order and morals of the community. In fact, for the very protection of these rights the society must arm itself with certain powers. What the Constitution therefore attempts to do by declaring the rights of the people is to strike a balance between individual liberty and social control.”

 

The courts normally would respect the legislative policy behind a valid legislation which imposes reasonable restrictions in the interest of the State [R.U.C.L. v Union of India (2004) 2 SOC 476).

 

Suspension and exceptions

 

The Constitution also provides for the suspension of fundamental rights in certain circumstances, The U.S. and the Australian Constitution have no provision for suspension of the fundamental rights Article 355 provides that when the proclamation of emergency is made by the President under Art. 352, the freedoms guaranteed by Art. 19 are automatically suspended for the period of emergency. Art.359 further empowers the President to suspend the right to move any court for the enforcement of fundamental rights (except Arts. 20 and 21) during the continuance of emergency. So even during the period a proclamation of emergency is in operation a person has the right to seek protection of his life and personal liberty.

 

Article 33 empowers Parliament to modify the application of Fundamental Rights to the Armed Forces or forces charged with maintenance of public order etc. in the interest of discharge of duties and maintenance of discipline. Under Art.34, Parliament may by law indemnify any person for anything done in contravention of fundamental rights for maintenance of order during the operation of martial law.

 

Classification of Fundamental Rights

 

The fundamental rights under the Constitution can be classified under the following six groups;

(a) Right to equality (Arts. 14-18)

(b) Right to freedom (Arts. 19-22).

(c) Right against exploitation (Arts. 23-24).

(d) Right to freedom of religion (Arts. 25-23).

(e) Cultural and educational rights (Arts. 29-30).

(f) Right to Constitutional remedies (Arts. 32-35).

 

[Note: The 44th Amendment has abolished the ‘right to property’ as a fundamental right guaranteed by Art. 19(1)(f) and Art. 31 of the Constitution, and hence these Articles have been omitted. it is now only a legal right. Under article 300-A)

 

New addition

Article 21A was inserted by 86th amendment act 2002. It provides for free and compulsory education to children between 6 to 14 years.

 

Fundamental Rights available against State and not against private individuals- individual needs constitutional protection against the State. The rights which are given to the citizens by way of fundamental rights are a guarantee against State action as distinguished from violation of such rights from private parties. Private action is sufficiently protected by the ordinary law of land. If the freedom of speech given by Art. 19(1) is taken away by State action or if a person is deprived of his personal liberty an action would lie against the State Fundamental rights: self-executory or require legislation – Certain rights need no legislation to make them enforceable e.g. Arts. 14, 19, and, 21, etc. But there are certain rights in Part III which are imperfect and need further legislation to make them enforceable. Such rights are”. Art. 17 (untouchability). Art. 21A (education); Art. 23(traffic in human beings; and, Art. 24 (child labour). An article 15(i) (appears to be absolute in nature.)

 

Fundamental rights: negative or positive – Some rights are in the form of prohibitions; they are a mandate to the State not to do a particular type of act (negative in form). For example, Art. 14 reads, “The State shall not deny to any person equality before the law or the equal protection of the laws.” Articles 15(1), 16(2), 18(1), 20, 21, 22(1), 27, and 28(1) are similarly worded. Some of the articles expressly create and confer one or more rights. Art. 19(1) reads: “All citizens shall have the right-(a) to freedom of speech and expression.” Art. 25(1) says, all persons are equally entitled to freedom of conscience Articles 21A, 29, 30 and 32 are other examples of positively worded rights.

 

Fundamental rights: available lo citizens or all persons – Some rights are available only to citizens. Such rights are- Arts. 15, 16, 19, 29 and 30. Some rights are available to all persons in India, citizens and foreigners alike (except enemy aliens).

 

Such rights are- Arts. 14, 20, 21, 21A, 23, 24, and, 25-28.4

 

Fundamental Rights Compared with Other Rights

 

Ordinary legal right e.g. right of a consumer, shareholder, mortgagor, etc. is protected and enforced by the ordinary law of the land. A fundamental right is protected and enforced by the Constitution. Ordinary rights can be changed by the common legislative process. A fundamental right can be altered only by a constitutional amendment. A fundamental right can be suspended or abridged only in the manner prescribed by the Constitution.

 

An ordinary right generally imposes a corresponding duty on another individual (and, State in some cases) but a fundamental right is a right which an individual possesses against the State.

 

All constitutional rights are not fundamental rights e.g. right not to be subjected to taxation without authority of law (Art. 265), Right to property (Art. 300A), Freedom of trade (Art. 301).

 

A fundamental right cannot be waived in India (see below). An ordinary legal right can be waived by an individual.

 

Waiver of Fundamental Rights

Fundamental rights occupy an important place in the scheme of basic human rights. A question arises: Can a person waive (i.e. voluntarily relinquish or abandon) any of his Fundamental Rights? In U.S.A., a Fundamental Right can be waived [Boykin v Alabama, 395 U.S. 238 (1969)].

 

In Behram v State of Maharashtra (AIR 1955 SC 123), the Fundamental Rights were divided into two broad categories: (i) Rights conferring benefits on the individuals, and (ii) those rights conferring benefits on the general public. The court repudiated the doctrine of waiver saying that the Fundamental Rights were not put in the Constitution merely for individual benefit. These Rights were there as a matter of public policy and therefore, the doctrine of waiver could have no application in case of Fundamental Rights, A citizen cannot invite discrimination by telling the State ‘You can discriminate’, or get convicted by waiving the protection given to him under Arts. 20 and 21.

 

The question of waiver of a Fundamental Right has been discussed more fully by the Supreme Court in Basheshar Nath v C,I.T. (AIR 1959 SC 149). After the Commission had decided upon the amount of concealed income under Sec. 5(1) of relevant Act, the petitioner on May 19, 1954, agreed as a settlement to pay in monthly installments over Rs. 3 lacs by way of tax and penalty. In 1955, the Supreme Court declared Sec. 5(1) ultra vires under Article 14. The petitioner there upon challenged the settlement between him and the Commission, but the plea of waiver was raised against him. The Supreme Court however upheld his contention.

 

In their judgments, the learned Judges expounded several views regarding waiver of Fundamental Rights, viz.:

 

(1) Art. 14 cannot be waived for it is an admonition to the State as a matter of public policy with a view to implement its object of ensuring equality. No person can, therefore, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution.

 

(2) A view, somewhat broader than the first, was that none of the Fundamental Rights can be waived by a person. The Fundamental Rights are mandatory on the State and no citizen can by his act or conduct, relieve the State of the solemn obligation imposed on it.

 

The Constitution makes no distinction between Fundamental Rights enacted for the benefit of an individual and those enacted in public interest or on grounds of public policy (such distinction has been attempted in USA). A large majority of the people in India are economically poor, educationally backward and politically not yet conscious of their rights. Individually or even collectively, they cannot be pitted against the State, and therefore, it is the duty of the judiciary to protect their Rights against themselves.

 

(3) An individual could waive a Fundamental Right which was for his benefit, but he could not waive a Right which was for the benefit of the general public.

 

In view of the majority decision in Basheshar, it is now an established proposition that an individual cannot waive any of his Fundamental Rights. This proposition has been applied in a number of cases. “The State cannot arrogate to itself a right to commit breach of the Fundamental Rights of any person by resorting to principles of waiver or estoppel or other similar principles” [Yousuf Ali v M. S. Kasbekar AIR 1982 Bom 135]. Similarly, the Gauhati High Court has explained that the Fundamental Rights have been embodied in the Constitution not merely for the benefit of a particular individual but also as a matter of constitutional policy and for public good, and, therefore, the doctrine of waiver or acquiescence cannot be applied thereto (Omega Advertising Agency v State Electricity Board AIR 1982 Gau 37).

 

In Olga Tellis case (AIR 1986 SC 180), the Apex Court asserted that the high purpose which ‘the Constitution seeks to achieve by conferment of fundamental rights is not only to benefit the individual but to secure the larger interests of the community. Therefore, even if a person says, either under mistake of law or otherwise, that he would not enforce any particular Fundamental Right, it cannot create an estoppel against him. Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid, an all powerful State could easily tempt an individual to forgo his precious personal freedoms on promise of transitory, immediate benefits. In this case, the pavement dwellers gave an undertaking that they would not claim any Fundamental Right to put up huts on pavements or public roads and that they would not obstruct the demolition of the huts alter a certain date. Later, when the huts were sought to be demolished after the specified date, the pavement dwellers put up the plea that they were protected by Ari. 21. It was argued in the Supreme Court that they could not raise any such plea in view of their previous undertaking. The court overruled the objection saying that Fundamental Rights could not bewaived. There can be no estoppels against the Constitution which is the paramount law of the land. The Court observed: “No individual can barter away the freedoms conferred on him by the Constitution.”

 

Recently, in Nar Singh Pal v Union of India (AIR 2000 SC 1401), the Supreme Court has asserted: “Fundamental Rights under the Constitution cannot be bartered away. They cannot be compromised nor there do any estoppel against the exercise of Fundamental right available under the Constitution. The doctrine of non-waiver developed by the Supreme Court of India denotes manifestation of its role of protector of the Fundamental Rights?

ARTICLE 12

[DEFINITION OF STATE]

 

‘Unless the context otherwise requires, the term ‘State’ include the following -executive and legislature of Union and States,” all local or other authorities within territory of India or under the control of government of India.

 

The definition is not exhaustive but inclusive, which means that apart from those organs or bodies which have been enumerated, others may also be covered by the expression ‘State. ‘Art 12, thus, is an interpretative article. The expression ‘other authorities’ has been interpreted by the courts, as it has not been defined in the Constitution or in any statute. Generally, a liberal or extended interpretation has been adopted by the courts.

 

It may be noted that this extended interpretation of the term ‘State’ is limited in its application only to Part III (Fundamental Rights) and Part IV (Directive principles)and it does not extend to the other provisions of the Constitution e.g. Arts. 309- 311 (Part XIV) (Sukhdev Singh’s case, below).

 

(b) Authorities

 

According to Webster’s dictionary, ‘authority’ means a person or body exercising power or command. in the context of Art. 12, ‘authority’ means the power to make laws, orders, regulations, bye-laws, etc., which have the force of law and power to enforce those laws. For instance, the bye-laws made by a Municipal Committee.

 

(c) Local Authorities

 

The expression as defined in Sec. 3 of the General Clauses Act refers to authorities like Municipalities, District Boards, Panchayats, etc.

 

(d) Other Authorities

 

The expression ‘other authorities’ in Article 12 is used alter mentioning the executive and legislature of Union and States, and all local authorities. Thus, it was held that it could only indicate authorities of a like nature i.e. ejusdem generis. So construed, it could only mean authorities exercising governmental or sovereign functions. It cannot include persons, natural or juristic eg a university unless it is ‘maintained by the State (University of Madras v Shantha Bai AIR 1954 Mad. 67). But, later it was held that ejusdem generis rule could not be resorted to in interpreting this expression, as there is no common genus running through these named bodies (in Art. 12), nor can these bodies so placed in one single category on any rational basis.

 

In Electricity Board, Rajasthan v Mohan Lal (AIR 1967 SC 1857) and Sukhdev Singh v Bhagal ram (AIR 1975 SC 1331), a very restrictive interpretation of the expression other authorities’ given by court — only the authorities created by the Constitution or Statute are the ‘other authorities’, though it is not necessary that statutory authority should been engaged in performing governmental or sovereign functions. Thus, Rajasthan Electricity Board, Oil & Natural Gas Commission (ONGC), Life Insurance Corporation, Industrial Finance Corporations, etc. are held to be ‘other authorities’. These bodies have power to make bye-laws, regulations, etc. for regulating conditions of services of their employees. The employees are entitled to claim protection of Arts. 14 and 18 against these bodies.

Case Law

 

Some Prakash Rekhi v Union of India (AIR 1981 SC 212)

Airport Authority’s Case,

R.D. Shetty v International Airport Authority of India (AIR 1979 SC 1628)Ajay Hasia v Khalid Mujib (AIR 1981 SC 487),

S.M. IIyas v ICAR [1993 (1 SCC 182)],

Tekraj Vasandi v Union of India [1988 (1 SCC 236)]

Chandra Mohan Khanna v NCERT (AIR 1992 SC 76)

Ashok Kumar Singh v BITCO Ltd. (AIR 1998 Pat 9),

In Pradeep Kumar Biswas v Indian Institute of Chemical Biology (2002) 5 SCC 1,

Virendra Kumar Srivastava v U.P, Rajya KarmchariKalyan Nigam (2005) 1 SCC 149,

Zee Telefimls Ltd. V Union of India (2005) 4 soc 649

G. Basso Reddy v International Crops Research Institute (AIR 2003 SC 1764)

 

Is Judiciary included in the word ‘state’?

 

Unlike in USA, where a judicial decision implies ‘State action‘ for the purposes of enforcement of fundamental rights, in India the ‘judiciary’ is not specifically mentioned in Art. 12. The judicial view is that the judgments of courts cannot be challenged on the ground that they contravene fundamental rights.

 

In Naresh v State of Maharashtra (AIR 1967 SC 1), it was held that even if a court is the State a writ, under Art. 32 cannot be issued to a High Court of competent jurisdiction against its judicial orders, because such orders cannot be said to violate the fundamental rights. What the judicial decision purports to do is to decide the controversy between the parties and nothing more. The court said that the ‘judiciary’ while exercising its rule making power under Art. 145 would be covered by the expression ‘State’ within the meaning of Art. 12, but while performing its judicial functions, it is not so included.

 

In Rupa Ashok Hurra v Ashok Hurra (AIR 2002 SC 1771), the Apex Court has Re-affirmed and ruled that no judicial proceeding could be said to violate any of the fundamental rights. It was said to be settled position of law that the superior courts of justice did not fall within the ambit of ‘State’ or ‘other authorities under Art. 12.

 

Comments — Mr. H.M. Seeravi is of opinion that the judiciary should be included in the definition of ‘the State’ and a judge acting as a judge is subject to the writ- jurisdiction of Supreme Court. In A.R. Antulay v R.S. Nayak (AIR 1988 SC 1531),, it was held that the court could not pass an order or issue a direction which would be violative of fundamental rights, thus, it can be said that the expression ‘State’ includes judiciary also.

It is submitted that the judiciary, though not expressly mentioned in Art. 12, it should be included so, since courts are set up by statute and exercise power conferred by law. It is suggested that discrimination may be brought about… even (by) judiciary. The courts, like any other organ of the State, are limited by the mandatory provisions of the Constitution.

 

ARTICLE 13

[LAWS INCONSISTENT WITH FUNDAMENTAL RIGHTS]

 

Clause (1) – All pre-Constitution or existing laws i.e. laws which were in force immediately before the commencement of the Constitution shall be void to the extent to which they are in consistent with fundamental rights from the date of the commencement of Constitution.

Clause (2) – The State shall not make any law which takes away or abridges the fundamental rights, and any law in contravention of fundamental rights shall to the extent of contravention, be void.

[Thus, Art. 13(2) applies to post-Constitution laws]

Clause (3) —The term ‘law includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.

Article 13, in fact, provides for the ‘judicial review’ of all legislations in India, past as well as future. All laws whether made by a legislature or by a delegated authority and all executive acts must respect and conform to the fundamental rights. The ordinances promulgated by the President under Art. 123 or by the Governor under Art.213 must also not be inconsistent with the fundamental rights. Art. 13 imposes an obligation on the State to respect and implement the fundamental rights and at the same time confers a power on the courts (Supreme and High Courts via Art. 32 and Art. 226) to declare a lawful Act void if it infringes a fundamental right. Art. 13, thus, provides teeth to the fundamental rights and makes them justiciable i.e. enforceable in the courts.

Application and Rules of Interpretation of Article 13

No retrospective effect- Every pre-constitutional law must after the commencement of the Constitution confirm to the provisions of Part III. It, otherwise, it cannot operate after 26-1-1950. Art. 13(1) (including other fundamental fights) is prospective in nature. All inconsistent existing laws become void only after the commencement of Constitution. They are not void ab initio. Such laws exist for all past acts, transactions, etc. and for enforcing all rights and liabilities accrued before the date of the Constitution. However, no body can claim his rights and liabilities to be enforced under a particular procedure (in respect of pending proceedings) which becomes inconsistent with fundamental rights.

 

Case Law

Keshavan Madhava Menon v State of Bombay (AIR 1951 SC 128)

(2) Doctrine of Severability or Separibility” — It means that if an offending provision can be separated from that which is constitutional then only that part which is offending is to be declared as void and not the entire statute (State of Bombay v EN. Balsam AIR 1951 SC 318; the case arose under the Bombay Prohibition Act, 1949). The words “to the extent of such inconsistency be void‘ in Art.13 means that only the repugnant provisions of the law in question shall be treated by courts as void and not the entire statute.

The primary test is whether what remains is so inextricably mixed with the pan declared invalid that what remains cannot survive independently. Doctrine of severability is applicable to legislation which ispartly ultra vires that is beyond the legislative competence of the legislature. This is contemplated by Art. 254, which is applicable to an Act which is generz-1lly’within the legislative competence of a legislature but certain parts are outside the scope of legislative entry.

Case Law

R.M.D.C. v Union of India (AIR 1957 sc 628)

Chintaman Rao v State of MP. AIR 1951 SC 118

A.K. Gopalan v State of Madras (AIR 1950 SC 27),

In Kihota Hollohan v Zachithu (AIR 1993 SC 412),

 

(3) Doctrine of Eclipse” – It provides for validation of void laws. It is based on the principle that a law which violates fundamental rights is not nullity or void ab initio but becomes only unenforceable i.e. remains in a moribund condition. “It is over-shadowed or eclipsed by the fundamental rights, and remains dormant, but it is not dead.

Case Law

Bhikaji Narain Dhakras v State of M.P. (AIR 1955 SC 781)

 

Does the doctrine of eclipse apply to a post-Constitution Law?

Art 13(2) deals with post-Constitution or future laws [while clause (1) deals with pre-Constitution or existing laws]. As distinguished from clause (1), clause (2) makes the inconsistent laws void ab initio (void from their very inception or still- born law) and even convictions made under such laws shall have to be set aside Also, such laws cannot be revived by subsequent amendment of the Constitution It IS to be noted that in both clause (1) and (2) of Art. 13, a declaration by the court of their invalidity will be necessary, to make the laws invalid.

Case Law

State of Gujarat v Shri Ambica Mills Ltd. (AIR 1974 SC 1300)

Deep Chand v State of U.F! (AIR 1959 SC 648)

Mahendra LaL Jain v State of U.P (AIR 1963 SC 1019),

M.P.V.Sundararamaier State of A.P. (AIR 1958 SC 468),

Jagannath v Authorized Officer, Land Reform (1971) 2 SCC 893

Dulare Lodh v Additional District Judge, Kanpur case (AIR 1984 SC 1260),

L.R. Coelho v State of Tamil Nadu (AIR 2007 SC 861),

 

Art. 13 and the Terms ‘Law’ and ‘Laws in Force’ [Art. 13(3)]

Article 13(3) (a) gives the term ‘law a very broad connotation which includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law. This is necessary to protect the violation or infringement of fundamental rights.

The term “law, thus, includes enacted law or legislation; ordinances issued by the President Governor; administrative /executive orders including delegated legislation; statutory rules; government notifications; bye-laws or regulations made by a municipal or statutory body; custom or usage having the force of law” etc.

It may be noted that administrative directions or instructions issued for the guidance of its officers which are not intended to be legal obligations, are outside the purview of the term ‘law’ under Art. 13. Similarly, the provisions of a Manual (compilation of executive orders or circulars) issued by the Government are not ‘law’. Circulars issued by the Central Board of Direct Taxes or by the Central Board of Excise and Customs are not law. The Flag Code which contains guidelines regarding flying of our national flag is not law.“

Personal laws – Hindu or Muslim law – are not covered by the term ‘law’ under Art. 13. An amendment of the Constitution enacted under Art. 368 is outside the purview of Art. 13 (See under the chapter on ‘Amendment of the Constitution’).

Article 13(3) (b) lays down that the expression “laws in force” includes “laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.” It, therefore, include laws which were on the Statute Book, though not in use or operation e.g. the Fugitive Offenders Act, 1881, passed by the British Parliament and applicable to India.

Article 13, is not applicable to law declared by the Supreme Court under Articles 141- 142

Art. 13(2) of the Constitution envisages a situation where the State action, be it legislative or executive, violates the fundamental rights; such law is declared as void but when the previous overruled decision and the new rule laid down by the Court as a stare decisis operates prospectively from a given date (namely, either the date of judgment or extended date), such order of judgment is not a legislative Act which is void under Art. 13(2) but a judicial tool by which the effect of the judgment was given.

Therefore, the judgment of the Supreme Court in Mandal case declaring that Rangachari ratio did not correctly interpret Arts. 16(1) and 16(4) is a declaratory law under Art. 141 of the Constitution. Art. 13(1) and (2) deal with the statute law and not the law declared by the Supreme Court under Art. 141 and directions/ orders under Art. 142. The question is whether such a declaration is inconsistent with the Constitution or in derogation of the fundamental rights.

The Court in Mandal case (holding reservation in promotion to be unconstitutional) had obviously recognised the need to adjust the competing rights of both the disadvantaged and advantaged sections of citizens and, therefore, it postponed the operation of that judgment for 5 years from that date giving an option to the executive to have the law amended appropriately [Ashok Kumar Gupta v State of UP (1997) 5 SCC 201].

 

PRELIMINARY QUESTIONS

 

1. Article 21A was inserted by:-

a) 97th Amendment

b) 86th Amendment

c) 44th Amendment

d) 46th Amendment

 
2. By 44th Amendment which of the following was abolished as a Fundamental Right guaranteed by Article 19(1)(f) and Article 31 of the Constitution?

a) Right to property

b) Cultural and educational rights

c) Right against exploitation

d) Right to Constitutional Remedies

 
3. In which of the following cases Supreme Court asserted: “Fundamental Rights under the Constitution cannot be bartered away. They cannot be compromised nor there do any estoppels against the exercised Fundamental Right available under the Constitution.”?

a) Yousuf Ali v. M.S. Kasbekar

b) Behram v. State of Maharashtra

c) Nar Singh Pal v. Union of India

d) RUCL v. Union of India

 
4. The proclamation of emergency is made by President under:-

a) Article 350

b) Article 351

c) Article 352

d) Article 395

 
5. Which Article empowers Parliament to modify the application of Fundamental Rights to the Armed Forces or forces charged with maintenance of public order etc. in the interest of discharge of duties and maintenance of discipline?

a) Article 33

b) Article 34

c) Article 35

d) Article 32

 
6. Which of the following is incorrect?

a) An individual could waive a Fundamental Right which was for his benefit, but he could not waive a Right which was for the benefit of the general public.

b) An ordinary legal right can be waived by an individual.

c) Article 14 can be waived for it is an admonition to the States as a matter of public policy with a view to implement its object of ensuring equality.

d) A Fundamental Right is a right which an individual possesses against the State.

 
7. In context of Article 12, ‘Authority’ means:-

a) A person or body exercising power or command.

b) The power to make laws, orders, regulations, bye-laws etc which have the force of law and power to enforce those laws.

c) Power to enforce laws

d) Power to make laws

 
8. Directive Principles are given in:-

a) Part III of the Constitution

b) Part II of the Constitution

c) Part V of the Constitution

d) Part IV of the Constitution

 
9. Which of the following is not ‘other authority’ as per Article 12 of the Constitution?

a) U.P. Warehousing Corporation

b) Life Insurance Corporation

c) Industrial Financial Corporation

d) None of the above

 
10. ‘Law in force’ is defined under:-

a) Article 13(3)(b)

b) Article 13(3)(a)

c) Article 13(2)

d) Article 13(1)

 
11. Article 19-22 deals with:-

a) Right to Equality

b) Right to Freedom

c) Right to Property

d) Right to Freedom of Religion

 
12. Which of the following is an exception to Article 14?

a) Article 21

b) Article 30

c) Article 31C

d) Article 105

 
13. In 1976, the Untouchability (Offences) Act, 1955 was comprehensively amended and renamed as:-

a) Protection of People’s Rights Act, 1955

b) Protection of Untouchable’s Rights Act, 1955

c) Protection of Civil Rights Act, 1955

d) Protection of Citizen’s Rights Act, 1955

 
14. Which of the following Article provides that the State shall provide fee and compulsory education to all children of the age of six to fourteen years in such a manner as the State may determine?

a) Article 21A

b) Article 22

c) Article 19

d) Article 20

 
15. The expression ‘traffic in human beings’ include:-

I. Selling and buying of men, women and children like goods

II. Immoral traffic in women and children, including prostitution

III. Devadasis

IV. Slavery

a) All of the above

b) I & II

c) I, II & III

d) I, II & IV

 
16. Which Article prohibits the employment of children below the age of 14 years?

a) Article 22

b) Article 24

c) Article 23

d) Article 21

 
17. _____________ is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in case.

a) Mandamus

b) Prohibition

c) Certiorari

d) Quo-Warranto

 
18. Fundamental Duties were incorporated in the Constitution in:-

a) 1970

b) 1976

c) 1980

d) 1986

 
19. New Directive Principle relating to co-operative societies were added by:-

a) 97th Amendment

b) 86th Amendment

c) 44th Amendment

d) 42nd Amendment

 
20. Cultural and Educational Rights are given in:-

a) Article 24

b) Article 32

c) Article 25-28

d) Article 29-30

 

ORGANS OF GOVERNMENT

LECTURE – 6 (A)

Mains Questions

 

1. Describe the elections provisions of President and Vice President.

 

2. Explain the Constitution position of President with reference to important provisions and Judicial decisions.

 

3. Explain the Power and Positions of the Governor.

 

4. Describe the discretionary power of the Governor.

 

5. Describe the position, power and function of Attorney General.

 

6. Explain the power of president under Art. 123 and compare it with article 13.

 

7. What is no confidence motion?

 

ORGANS OF GOVERNMENT

LECTURE – 6 (A)

   

President

Introduction

The Union executive consists of the President, the Vice-President, the Prime Minister, the council of ministers and the attorney general of India.

Articles 52 to 78 in Part V of the Constitution deal with the Union executive.

The President is the head of the Indian State, he acts as the symbol of unity, integrity and solidarity of the nation.

Election

The President is elected by members of Electoral College comprising of the elected members of both the Houses of Parliament, legislative assemblies of the states; and the elected members of the legislative assemblies of the Union Territories of Delhi and Puducherry.

President’s election is held with the system of proportional representation by means of the single transferable vote and the voting is by secret ballot.

A candidate to be declared elected to the office of President must secure a fixed quota of votes.

All doubts and disputes in relation with election of the President are inquired into and decided by the Supreme Court whose decision is final.

Qualifications

A person to be eligible for election as President must

be a citizen of India.

have completed 35 years of age

be qualified for election as a member of the Lok Sabha.

not hold any office of profit under the Union government or any state government or any local authority or any other public authority.

A sitting President or Vice-President of the Union, the Governor of any state and a minister of the Union or any state is not deemed to hold any office of profit and hence qualified as a presidential candidate.

The nomination of a candidate for election to the office of President must be subscribed by at least 50 electors as proposers and 50 electors as seconders.

 

Conditions

He cannot be a member of either House of Parliament or a House of the state legislature.

He enjoys personal immunity from legal liability for official acts.

During his term of office, he is immune from any criminal proceedings, also in respect of his personal acts and cannot be arrested or imprisoned.

However, after giving two months’ notice, civil proceedings can be instituted against him during his term of office in respect of his personal acts.

Term of President’s Office

President holds office for a term of five years.

He can resign, by addressing the resignation letter to the Vice President.

He can hold office beyond the term of five years until successor assumes charge. He is also eligible for re-election to that office and may be elected for any number of terms.

Removal

The President can be removed from office by a process of impeachment for violation of the Constitution, however the term violation has not been defined by the Constitution.

Impeachment charges can be initiated by either House of Parliament which should be signed by one-fourth members of the House.

A 14 days’ notice should be given to the President. Once impeachment resolution is passed by a majority of two-thirds of the total membership of the House, it is sent to the other House, which should investigate the charges.

President has the right to appear and to be represented at such investigation. If the other House also sustains the charges and passes the impeachment resolution by a majority of two-thirds, then the President stands removed from his office.

It should be noted here that nominated members can participate in the impeachment process, but not in the election of the President; the elected members of the legislative assemblies of the state and union territories of Delhi and Puducherry do not participate in the impeachment process.

Powers of the President

Executive Powers

All executive actions of the Government formally taken in his name.

He appoints the prime minister and the other ministers, attorney general of India and also determines his remuneration. He appoints the comptroller and auditor general of India, the chief election commissioner and, the chairman and members of the Union Public Service Commission, the governors of states, the chairman and members of finance commission.

He can seek any information relating to the administration of affairs of the Union, and proposals for legislation from the prime minister.

He can require the Prime Minister to submit, for consideration of the council of ministers.

He can appoint a commission to investigate into the conditions of SCs, STs and other backward classes, an inter-state council to promote Centre-state and inter-state cooperation.

He directly administers the union territories through administrators appointed by him.

He can declare any area as scheduled area and has powers with respect to the administration of scheduled areas and tribal areas.

 

Legislative Power

He summons or prorogues the Parliament and dissolves the Lok Sabha.

He summons a joint sitting of both the Houses of Parliament.

He addresses the Parliament at the commencement of the first session after each general election and the first session of each year.

He decides on matters of disqualifications of members of the Parliament, in consultation with the Election Commission.

His prior recommendation is needed to introduce certain types of bills in the Parliament like a bill involving expenditure from the Consolidated Fund of India, or for the alteration of boundaries of states or creation of a new state.

He can promulgate ordinances when the Parliament is not in session which can be retrospective in nature and follows the same rules.

 

Financial Powers

Money bills can be introduced in the Parliament only with his prior recommendation.

He lays before the Parliament the annual financial statement (i.e., the Union Budget).

No demand for a grant can be made except on his recommendation.

Judicial Powers

Appointment of Chief Justice and the judges of the SC and HC.

Under article 72, President has been empowered with pardoning power, which includes

Pardon: Completely absolves the convict from all sentences, punishments and disqualifications.

Commutation: Substitution of one form of punishment for a lighter form.

Remission: Reducing the period of sentence without changing its character.

Respite: Awarding a lesser sentence in place of one originally awarded due to some special reason.

Reprieve: Stay of the execution of a sentence (especially that of death) for a temporary period to enable the convict to have time to seek pardon or commutation from the President.

Diplomatic Powers

The international treaties and agreements are negotiated and concluded on behalf of the President subject to the approval of the Parliament.

Military Powers

Military Powers

President is the supreme commander of the defence forces of India. Apart from appointing the chiefs of the Army, the Navy and the Air Force he can declare war or conclude peace, subject to the approval of the Parliament.

Emergency Powers

The Constitution confers extraordinary powers on the President to during

National Emergency (Article 352);

President’s Rule (Article 356 & 365); and

Financial Emergency (Article 360)

 

Veto Power

The President has veto power over the bills passed by the Parliament namely – absolute veto, suspensive veto and pocket veto.

Absolute Veto refers to the power of the President to withhold his assent to a bill passed by the Parliament. The bill then ends and does not become an act. It is usually exercised with respect to private members’ bills, and with respect to the government bills when the cabinet resigns (after the passage of the bills but before the assent by the President) and the new cabinet advises the President not to give his assent to such bills.

Suspensive Veto is when he returns a bill for reconsideration of the Parliament. But, if the bill is passed again by the Parliament with or without amendments and presented to the President, it is obligatory for the President to give his assent to the bill. President does not possess this veto in case of money bills. The President can either give his assent to a money bill or withhold his assent to a money bill but cannot return it for the reconsideration of the Parliament.

Pocket Veto refers to when the President neither ratifies nor rejects nor returns the bill, but simply keeps the bill pending for an indefinite period. The Constitution does not prescribe any time-limit within which he has to take the decision with respect to a bill presented to him for his assent.

The President has no veto power in respect of a constitutional amendment bill. The 24th Constitutional Amendment Act of 1971 made it obligatory for the President to give his assent to a constitutional amendment bill.

When a bill is reserved by the governor for the consideration of the President, the President has three alternatives (Article 201).

He may give his assent, or

Withhold his assent, or

He may direct the governor to return the bill (if it is not a money bill) for the reconsideration of the state legislature. But, if the bill is passed again by the state legislature and presented again to the President for his assent, the President is not bound to give his assent to the bill.

Ordinance-Making Power

Under article 123 the President to promulgate ordinances during the recess of Parliament but with following conditions:

He can promulgate an ordinance only when both the Houses of Parliament are not in session or when either of the two Houses of Parliament is not in session, when only one House is in session.

An ordinance made when both the Houses are in session is void.

He can make an ordinance only when he is satisfied that the circumstances exist that render it necessary for him to take immediate action.

Under the 44th Constitutional Amendment Act of 1978 the President’s satisfaction is justiciable on the ground of mala fide.

An ordinance can be issued only on those subjects on which the Parliament can make laws and is subject to the same constitutional limitation as an act of Parliament. Hence, an ordinance cannot abridge any of the fundamental rights.

Every ordinance issued by the President during the recess of Parliament must be laid before both the Houses of Parliament when it reassembles.

 

The ordinance-making is not a discretionary power President can promulgate or withdraw an ordinance only on the advice of the council of ministers headed by the prime minister.

 

POSITION OF PRESIDENT:

RELATION BETWEEN

PRESIDENT AND COUNCIL OF MINISTERS

All executive functions are executed in the name of President, authenticated in such manner as may be prescribed by rules to be made by President (Article 77). The President has wide administrative powers (to appoint and dismiss officers, ministers, etc.), military powers, diplomatic and legislative powers.

The President, however, must exercise powers according to the Constitution. Art. 53(1) which vests the executive power of the Union in the President provides that the power may be exercised by the President either directly or through officers subordinate to him. For this purpose, Ministers are deemed to be officers subordinate to him.

Article 74(1) provides that there shall be a Council of Ministers with Prime Minister at the head, to aid and advise President in exercise of his functions. Article 74(2) lays that question whether any, and if so, what advice was tendered by minister to the President shall not be inquired into in any court. Thus, relation between President and Council of Ministers are confidential.

Prior to the 42nd Amendment, there was no clear provision in the Constitution that President was bound by ministerial advice. This amendment amended Article 74 which makes it clear that President shall be bound by the advice of Council of Ministers. However, by 44th Amendment, President has been given one chance to send back advice to the Council of Ministers for reconsideration. However, President shall act in accordance with advice tendered after such reconsideration.

Article 75(1) says that Prime Minister shall be appointed by President and other Ministers shall be appointed by President on the advice of Prime Ministers. Article 75(2) Lays that Minister shall hold office during the pleasure of President. Article 75(3) lays down that Council of Ministers shall be collectively responsible to the Lok Sabha.

Clause (1A), added to Art. 75(1) by the Constitution 91st Amendment (2003), provides that the size of the Council of Ministers including the Prime Minister shall not exceed 15 per cent of the total number of the members in the Lok Sabha.

It may be noted that the Ministers are nominees of the Prime Minister. The Constitution does not contain any restriction on the Prime Minister’s choice of his colleagues. In practice, his choice is governed by considerations like party standing, capacity, educational skill, willingness to carry out a common policy, regional representation, representation of backward or scheduled classes, minorities, etc.

Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule [Art. 75(4)]. The salaries and allowances of Ministers shall be such as Parliament may from time to time by law determine and, until Parliament so determines, shall be as specified in the Second Schedule [Art. 75(6)]. The Salaries and Allowances of Ministers Act, 1952, has been passed for this purpose.

Prime Minister

He is the leader of the majority party in the Lok Sabha. According to Article 74(1), he is the head of the Council of Ministers. He is primes inter pares (‘First among Equals’) in Council of Ministers. His main function is to aid and advise the President in the exercise of his functions. In this way, he is the real or chief executive.

The Prime Minister’s office is his personal secretariat. Under the Allocation of Business Rules, 1961, it occupies the status of a department of the Government of India. ‘Cabinet’ is the core of the Council of Ministers. The Prime Minister is the Chairman of the Planning Commission. Recently, he has been made the Chairperson of the ‘Tiger Conservation Authority’.

Deputy Prime Minister

The post of Deputy Prime Minister is not prescribed in the Constitution. However, seven Deputy Prime Ministers have been made so far (e.g. Sardar Patel – first; L.K. Advani – last). Such appointment depends on the discretion of the Prime Minister and the communication is sent to the President of India. He occupies the position of Prime Minister in assisting him in his absence. His office is meant to reduce the workload of the Prime Minister. He, however, lacks the powers of the Prime Minister.

The Supreme Court has ruled that the Deputy Prime Minister is just a Minister and he takes the same oath as a Minister does.

President’s Discretion: A Limited One

(Council of Ministers to Aid and advise President)

Alladi Krishna Ayyar, a member of the Drafting Committee of the Constituent Assembly, observed that the word “President” used in the Constitution “merely stands for the fabric responsible to the Legislature”. What he means by the term ‘President’ is the Union Council of Ministers which is declared to be collectively responsible to the House of People i.e. Lok Sabha.

The role of the President as a figurehead is reflected in his indirect election. It may also be noted that the Constitution nowhere uses the terms like “discretion” and “individual judgment” for the President which were used for the Govemor—General under the Government of India Act, 1935.

According to Dr. Ambedkar, “Under the Draft Constitution, the President occupies the same position as the King under the English Constitution. He is the head of State but not of the executive. He represents nation but does not rule the nation. His place in the administration is that of a ceremonial device on a seal by which the nati0n’s decisions are made known. He can do nothing contrary to the advice of Council of Ministers nor can do anything without their advice.”

It is the Council of Ministers which makes decisions relating to the administration of the affairs of the Union and its decisions are binding on the President. Except in certain marginal cases, President shall have no power to act in his discretion in any case:-

(i) Council of Ministers is collectively responsible to Lok Sabha [Art. 75(3)]. Thus, for the policy decisions of the government, the Council of Ministers is answerable to Parliament; the President is not responsible to Parliament for the acts of government. It will be anomalous to hold that the ministers are answerable for the acts and policies of the government in the making of which they only give advice, while the final decisions are taken by the President.

If the President ignores the advice of Ministers enjoying the confidence in Lok Sabha, it may resign and thus create a constitutional crisis. The President must then find another Prime Minister who, with his colleagues, can secure the support of the Lok Sabha. If the outgoing Prime Minister has the support of the Lok Sabha, it will not be possible for the President to have an alternative government. It is obligatory on the President to have always a Council of Ministers.

(ii) If he dismisses any Ministry having support of Lok Sabha, they may bring impeachment proceedings against him… this serves as a deterrent against the President assuming real powers.

(iii) The President may not be able to incur any expenditure in case of any conflict between himself and the Council of Ministers. The latter has the support of Lok Sabha which in turn controls the executive primarily through its authority over the purse i.e. the power to levy and collect taxes. Any amount incurred by the President without proper authorization by Parliament would be unconstitutional.

(iv) ,Appointment of Prime Minister- President’s discretion is limited. Thus when a single party gains an absolute majority and has an accepted leader, President‘s choice of selecting Prime Minister is a mere formality. Similarly, if on the death or resignation of a Prime Minister, the ruling party elects a new leader, President has no choice but to appoint him as Prime Minister.

However, if no single party gains majority and a “coalition government” is to be formed, President can exercise a little discretion and select the leader of any party who, in his opinion, can form a stable Ministry. However, even in such a situation, his action should be guided by certain conventions.

It may be noted that the President may first invite a person and appoint him the Prime Minister and then ask him to prove his majority or seek a vote of confidence in the Lok Sabha within a reasonable time. In such a case, the action of the President it1 proroguing the Lok Sabha on the advice of the new Council of Ministers (headed by Prime Minister Charan Singh) and giving them time to seek a vote of confidence is not only proper but entirely constitutional (Dinesh Chandra v Chaudhury Charan Singh AIR 1980 Del 114). In this case, it was argued that it is only after a member of the Lok Sabha secures the vote of confidence of the Lok Sabha that he should be appointed as the Prime Minister. The Court rejecting this argument said that it is the President and not the Lok Sabha that select the Prime Minister. The Court held that the President exercised his discretion to dissolve the Lok Sabha after considering the advice of the Council of Ministers (though it did not secure the vote of confidence of the House) in a difficult and extraordinary situation.

Incidentally, Charan Singh was the only Prime Minister who remained in office for a while without obtaining a vote of confidence from, and without ever facing, the Lok Sabha.

(v) Dismissal of a Minister/or Cabinet – Though Ministers hold office during the pleasure of President [Art. 75(2)], but President is bound to exercise his pleasure in accordance with Prime Minister’s advice. Thus, it is a power of Prime Minister against his (undesirable) colleagues (It is, however, necessary to realise the idea of collective responsibility).

‘Collective responsibility’ implies that Council of Ministers is responsible (to the Lok Sabha) as a body for the general conduct of the affairs of the government. The entire Council of Ministers is made collectively responsible to the House and that ensures the smooth functioning of the democratic machinery. The Council of Ministers work as a team and all decisions taken by the Cabinet are the joint decisions of all its members. No matter whatever be their personal differences of opinion within the Cabinet, but once a decision has been taken by it, it is the duty of each and every Minister to stand by it and support it both in the Legislature and outside.

Lord Salisbury explained this principle of collective responsibility thus: “For all that passes in the Cabinet each member of it who does not resign is absolutely irretrievably responsible, and has no right afterwards to say that he agreed in one sense to a compromise while in another he was persuaded by his colleagues.”

Thus, as soon as a Ministry loses the confidence of the House or is defeated on any question of policy, it must resign. If a ‘no-confidence motion’ is passed against any one Minister, the entire Council of Ministers must resign.

If any Minister does not agree with the majority decision of the Council of Ministers, his option is to resign or accept the majority decision. If he does not, the Prime Minister would drop him from his Cabinet and thus ensure collective responsibility. This is a great weapon in the hands of the Prime Minister through which he maintains unity and discipline in his colleagues (Cabinet). Dr. Ambedkar said: “The Prime Minister is really the keystone of the arch of the Cabinet and until we create that office and endow that office with statutory authority to nominate and dismiss Ministers there can be no collective responsibility.”

It needs to be clarified that along with the principle of collective responsibility the principle of ‘individual responsibility’ of each Minister to the Parliament also works. Every Minister has to answer question regarding the affairs of his department in the Parliament. He cannot throw the responsibility of his department either on his officials or another Minister. If the Minister has taken action with the Cabinet’s approval the principle of collective responsibility applies and the whole Cabinet should support and defend his action. However, if the Minister has taken action without the Cabinet’s approval, the Cabinet may or may not support him. In case of non-support, the Minister has to go and not the whole Cabinet. But the Cabinet cannot retain the Minister and at the same time contend that the responsibility is all his (Ram Jawaya v State of Punjab AIR 1955 SC 519).

There is no doubt about the President’s power to dismiss ministry that has lost the confidence of Lok Sabha. But, can President dismiss such ministry, which though enjoys the confidence of Lok Sabha, but has lost the support of the people. In India, such Ministry enjoying the confidence of Legislative Assembly have been dismissed in various States.

It is no violation of constitutional practice if the President dismisses a Ministry when he is satisfied on reasonable grounds that it has lost the support of the people. The will of the people must in the end prevail and President will be violating the Constitution if he allows discredited government to continue only because it has succeeded in managing to keep the members of legislature in its favour. But the real problem is how to know the will of people (press views, by-elections results, etc., may be used, however these methods are not free from difficulties). Nevertheless, if the President is clear and his decision is based on reasonable and proper grounds, there should be no difficulty in taking the action.

(vi) Dissolution of Lok Sabha – So long as Prime Minister and his cabinet enjoys confidence, the President is bound to dissolve Lok Sabha only when advised by Prime Minister. But, this advice will not be binding on the President, when Prime Minister loses his majority or unable to prove his majority or a vote of no-confidence passed against him or when he is not facing the Parliament, but President has proof that ruling party does not have a majority.

In the above circumstances, the President must try to find out whether any alternative ministry can be possible. He should make all possible efforts to avoid a mid-term poll.

(vii)Communication with Prime Minister – Article 78 provides that it shall be the duty of Prime Minister to communicate to the President ‘all decisions’ of Council of Ministers relating to administration of affairs of Union and proposals for legislation; to furnish such information relating to administration as President may call for; and if the President so requires to submit for the consideration of Council of Ministers any matter on which ‘a decision’ has been taken by a Minister but which has not been considered by the Cabinet. This is very necessary for the successful working of the principle of collective responsibility.

A controversy regarding the President’s position and his relation with Prime Minister raised during the tenure of President Zail Singh and Prime Minister Rajiv Gandhi. The controversy mainly arose due to mistrust created by Prime Minister not meeting the President frequently and keeping him informed about the affairs of Government particularly ‘Bofors gun deal’.

The President has a right to know what his government is doing or proposes to do. But the question how much information is to be furnished by Prime Minister to the President is his prerogative. This should be a matter to be resolved by mutual confidence and cooperation between the two.

(viii) The working of the Constitution since 1950 has established that President is a nominal or constitutional or formal Head and the real executive power vests in the Council of Ministers.

Supreme Court’s Views

The Supreme Com has consistently taken the view that position of President (and Governors) under the Constitution is similar to the position of Crown under the British Parliamentary system. It is a fundamental principle of English constitutional law that Ministers must accept responsibility for every executive act. The power of the sovereign (or king) is conditioned by the practical rule that Crown must find advisers to bear responsibility for his action. This rule of English law is incorporated in our Constitution also.

It is the essence of Parliamentary Government that the real executive powers should be exercised by the Council of Ministers responsible to Lok Sabha. The Council of Ministers enjoying a majority in the legislature concentrated in itself the virtual control of both executive and legislative functions. Ram Jawaya v State of Punjab (AIR 1955 SC 549), Shamsher Singh v State of Punjab (AIR 1974 SC 2192) are the judicial precedents in this regard.

Wherever the Constitution requires the satisfaction of President or Governor, for example, in Article 123, 213, 311(2)(c), 356, 360, the satisfaction is not the personal satisfaction, but it is the satisfaction in the constitutional sense under the cabinet system of government. It is the satisfaction of Council of Ministers on whose aid and advice the President or Governor generally exercises all his powers. Whether the functions exercised by the President are the functions of the Union or the functions of the President, they have equally to be exercised on the aid and advice of the Council of Ministers except those which he has to exercise in his discretion (Shamsher Singh v State of Punjab AIR 1974 SC 2192).

These few well-known exceptions (according to Krishna Iyer, J. in his separate concurring opinion in the aforesaid case) relate to: (i) the choice of Prime Minister (or Chief Minister) restricted by the consideration that the Prime Minister (or Chief Minister) should command a majority in the House; (ii) the dismissal of a government which has lost the majority in the House but refuses to quit office; and (iii) the dissolution of the House where an appeal to the country has become necessary, though the better course may be to act in this regard on the advice of the Prime Minister or Chief Minister. The motivation for taking such an action must be compelled by the peril to democracy, and the appeal to the House or to the country must become blatantly obligatory.

In U.N. Rao v Indira Gandhi (AIR 1971 SC I002), the Apex Court held: Art. 74(1) is mandatory and, therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers. Any exercise of executive power without such aid and advice (even after the President has dissolved the legislature) will be unconstitutional in view of Art.74(1) and Arts. 75(2)-(3).

In Bejoy Lakshmi Cotton Mill’s case (AIR 1967 SC 1145), it was observed that although the executive power is vested in President or Governor, it is actually carried on by Ministers. The President or Governor means the ‘President or Governor aided and advised by Ministers.’

 

VICE PRESIDENT OF INDIA

There shall be a Vice-President of India (Art. 63). He is the second highest ranking government officer in the executive branch of the Government after the President.

The Constitution provides for a Vice President who is elected by members of the two Houses of Parliament in accordance with the system of proportional representation by means of a single transferable vote and secret ballot [Art. 66(1)]. The ‘electoral college’ consists of all members of the Lok Sabha and Rajya Sabha including the nominated ones.

A candidate for the office of Vice-President must:

be a citizen of India;

be more than 35 years of age;

possess the qualifications prescribed for membership of the Rajya Sabha;

not be member of either House of the Parliament or State Legislature;

not be person of unsound mind or insolvent; and

not hold any office of profit under the Union or State Government or local authority [Art. 66(3)-(4)].

Explanation- For the purposes of this article, a person shall not be deemed to hold any office of profit by reason only that he is the President or Vice-President of the Union or the Governor of any State or is a Minister either for the Union or for any State.

The Vice President holds office for a term of five years from the date on which he enters office. He is eligible for re-election. He shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office.

His term can be cut short if he resigns (by addressing to the President).

Also, he can be removed by the Rajya Sabha through a resolution passed by a majority of all the then ‘members (i.e. total strength of the House minus the number of vacancies) and likewise agreed to by the Lok Sabha. However, a 14 day’s notice of the intention to move the resolution has to be given to the Vice-President (Art. 67).

It may be noted that there is no impeachment process for removal of Vice-President. The Constitution does not prescribe any ground on which a resolution for the removal of Vice-President can be moved.

Powers – The Vice-President is the ex-officio Chairman of the Rajya Sabha and presides over it meetings (Art. 64). All bills, resolutions, motions or questions can be taken up by the Rajya Sabha only with his consent. He is the chief spokesman of the Rajya Sabha before the President as well as the Lok Sabha. He is entitled to the same salary and allowance which are paid to the Speaker of the Lok Sabha.

He discharges the functions of the office of the President in case that post falls vacant on account of the death, resignation or removal of the President. The Vice-President can act as President for a maximum period of six months because fresh elections for the office of President must be held within six months of the occurrence of vacancy. Similarly, if the President is unable to discharge his functions for some reasons (casual vacancy on account of illness) or remains absent, the Vice-President discharges all his functions. When he does so, he ceases to perform the functions of the Chairman of the Rajya Sabha. The Vice-President shall, during, and in respect of the period while he is so acting as, or discharging the functions of, President, have all the powers and immunities of the President and be entitled to such emoluments, allowances and privileges as may be determined by Parliament by law (Art. 65).

 

center>Governor

The Constitution of India envisages the same pattern of government in the states as that for the Centre, that is, a parliamentary system. Articles 153 to 167 in Part VI of the Constitution deals with the state executive. The state executive consists of the governor, the chief minister, the council of ministers and the advocate general of the state.

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. Usually, there is a governor for each state, but the 7th Constitutional Amendment Act of 1956 facilitated the appointment of the same person as a governor for two or more states.

Appointment

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. He is appointed by the president by warrant under his hand and seal. In a way, he is a nominee of the Central government. But, as held by the Supreme Court in 1979, the office of governor of 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.

He should be a citizen of India.

He should have completed the age of 35 years.

Additionally, two conventions have also developed in this regard over the years. First, he should be an outsider, that is, he should not belong to the state where he is appointed, so that he is tree from the local politics. Second, while appointing the governor, the president is required to consult the chief minister of the state concerned, so that the smooth functioning of the constitutional machinery in the state is ensured.

Conditions of Governor’s Office

The Constitution lays down the following conditions for the governor’s office:

He should not be a member of either House of Parliament or a House of the state legislature. If any such person is appointed as governor, he is deemed to have vacated his seat in that House on the date on which he enters upon his office as the governor.

He should not hold any other office of profit.

He is entitled without payment of rent to the use of his official residence.

He is entitled to such emoluments, allowances and privileges as may be determined by Parliament.

When the same person is appointed as the governor of two or more states, the emoluments and allowances payable to him are shared by the states in such proportion as determined by the president.

His emoluments and allowances cannot be diminished during his term of office.

The Governor enjoys personal immunity from legal liability for his official acts. During his term of office, he is immune from any criminal proceedings, even in respect of his personal acts. He cannot be arrested or imprisoned. However, after giving two months’ notice, civil proceedings can be instituted against him during his term of office in respect of his personal acts. 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.

Term of Governor’s Office

A 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. Further, he can resign at any time by addressing a resignation letter to the President.

The governor has no security of tenure and no fixed term of office. He may be removed by the President at any time. The Constitution does not lay down any grounds upon which a governor may be removed by the President. The President may transfer a Governor appointed to one state to another state for the rest of the term. Further, a Governor whose term has expired may be reappointed in the same state or any other state.

strong>Powers and Functions

A governor possesses executive, legislative, financial and judicial powers more or less analogous to the President of India. However, he has no diplomatic, military or emergency powers like the president. The powers and functions of the governor are discussed below:

Executive Powers

The executive powers and functions of the Governor are:

All executive actions of the government of a state are formally taken in his name.

He can make rules specifying the manner in which the Orders and other instruments made and executed in his name shall be authenticated.

He can make rules for more convenient transaction of the business of a state government and for the allocation among the ministers of the said business.

He appoints the chief minister and other ministers. They also hold office during his pleasure.

He appoints the advocate general of a state and determines his remuneration. The advocate general holds office during the pleasure of the governor.

He appoints the state election commissioner and determines his conditions of service and tenure of office. However, the state election commissioner can be removed only in like manner and on the like grounds as a judge of a high court.

He appoints the chairman and members of the state public service commission. However, they can be removed only by the president and not by a governor.

He can seek any information relating to the administration of the affairs of the state and proposals for legislation from the chief minister.

He can recommend the imposition of constitutional emergency in a state to the president. During the period of President’s rule in a state, the governor enjoys extensive executive powers as an agent of the President.

He acts as the chancellor of universities in the state. He also appoints the vice-chancellors of universities in the state.

Legislative Powers

A governor is an integral part of the state legislature. In that capacity, he has the following legislative powers and functions:

He can summon or prorogue the state legislature and dissolve the state legislative assembly.

He can address the state legislature at the commencement of the first session after each general election and the first session of each year.

He can send messages to the house or houses of the state legislature, with respect to a bill pending in the legislature or otherwise.

He can appoint any member of the State legislative assembly to preside over its proceedings when the offices of both the Speaker and the Deputy Speaker fall vacant. Similarly, he can appoint any member of the state legislature council to preside over its proceedings when the offices of both Chairman and Deputy Chairman fall vacant.

He can nominate one member to the state legislature assembly from the Anglo-Indian Community.

He decides on the question of disqualification of members of the state legislature in consultation with the Election Commission.

When a bill is sent to the governor after it is passed by state legislature, he can:

     

Give his assent to the bill, or

     

Withheld his assent to the bill, or

     

Return the bill (it is not a money bill) for reconsideration of the state legislature, However, if the bill is passed again by the state legislature with or without amendments, the governor has to give his assent to the bill, or

     

Reserve the bill for the consideration of the president In one case such reservation is obligatory, that is, where the bill passed by the state legislature endangers the position of the state high court.

He can promulgate ordinances when the state legislature is not in session. These ordinances must be approved by the state legislature within six weeks from its reassembly. He can also withdraw an ordinance anytime.

He lays the reports of the State Finance Commission, the State Public Service Commission and the Comptroller and Auditor-General relating to the accounts of the state, before the state legislature.

Financial Powers

The financial powers and functions of the governor are:

He sees that the Annual Financial Statement (state budget) is laid before the state legislature.

Money bills can be introduced in the state legislature only with his prior recommendation.

No demand for a grant can be made except on his recommendation.

He can make advances out of the Contingency Fund of the state to meet any unforeseen expenditure.

He constitutes a finance commission after every five years to review the financial position of the panchayats and the municipalities.

Judicial Powers

The judicial powers and functions of the governor are:

He can grant pardons, reprives, respites and remissions of punishment or suspend, remit and commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the state extends.

He is consulted by the president while appointing the judges of the concerned state high court.

He makes appointments, postings and promotions of the district judges in consultation with the state high court.

He also appoints persons to the judicial service of the state (other than district judges) in consultation with the state high court and the State Public Service Commission.

Veto Power of Governor

With Regard to Ordinary Bills: Every ordinary bill, after it is passed by the legislative assembly in case of a unicameral legislature or by both the Houses in case of a bicameral legislature either in the first instance or in the second instance, is presented to the governor for his assent. He has four alternatives:

He may give his assent to the bill, the bill then becomes an act.

He may withhold his assent to the bill; the bill then ends and does not become an act.

He may return the bill for reconsideration of the House or Houses. If the bill is passed by the House or  He may return the bill for reconsideration of the House or Houses. If the bill is passed by the House or Houses again with or without amendments and presented to the governor for his assent, the governor must give his assent to the bill. Thus, the governor enjoys only a ‘suspensive veto’.

He may reserve the bill for the consideration of the President.

When the governor reserves a bill for the consideration of the President, he will not have any further role in the enactment of the bill. If the bill is returned by the President for the re-consideration of the House or Houses and is passed again, the bill must be presented again for the presidential assent only. If the President gives his assent to the bill, it becomes an act. This means that the assent of the Governor is no longer required.

With Regard to Money Bills: Every money bill, after it is passed by the state legislature (unicameral or bicameral), is presented to the governor for his assent. He has three alternatives:

He may give his assent to the bill, the bill then becomes an act.

He may withhold his assent to the bill, the bill then ends and does not become an act.

He may reserve the bill for the consideration of the president.

 

Thus, the governor cannot return a money bill for the reconsideration of the state legislature. Normally, the governor gives his assent to a money bill as it is introduced in the state legislature with his previous permission. When the governor reserves a money bill for the consideration of the President, he will not have any further role in the enactment of the bill. If the President gives his assent to the bill, it becomes an Act. This means that the assent of the governor is no longer required.

Constitutional Position of Governor

The Constitution of India envisages the governor only a nominal executive, the real executive constitutes the council of ministers headed by the chief minister. In other words, the governor has to exercise his powers and functions with the aid and advise of the council of ministers headed by the chief minister, except in matters in which he is required to act in his discretion (i.e., without the advice of ministers). According to the Constitution:

The executive power of the state shall be vested in the governor and shall be exercised by him either directly or

through officers subordinate to him in accordance with this Constitution (Article 154).

There shall be a council of ministers with the chief minister as the head to aid and advise the governor in the exercise of his functions, except in so far as he is required to exercise his functions in his discretion (Article 163).

The council of ministers shall be collectively responsible to the legislative assembly of the state (Article 164). This provision is the foundation of the parliamentary system of government in the state.

The constitutional position of the governor differs from that of the president in the following two respects:

While the Constitution envisages the possibility of the governor acting at times in his discretion, no such possibility has been envisaged for the President.

After the 42nd Constitutional Amendment (1976), ministerial advice has been made binding on the President, but no such provision has been made with respect to the governor.

The Constitution makes it clear that if any question arises whether a matter falls within the governor’s discretion or not, the decision of the governor is final and the validity of anything done by him cannot be called in question on the ground that he ought or ought not to have acted in his discretion. The governor has constitutional discretion in the following cases:

Reservation of a bill for the consideration of the President.

Recommendation for the imposition of the President’s Rule in the state.

While exercising his functions as the administrator of an adjoining union territory (in case of additional charge).

Determining the amount payable by the Government of Assam, Meghalaya, Tripura and Mizoram to an autonomous Tribal District Council as royalty accruing from licenses for mineral exploration.

Seeking information from the chief minister with regard to the administrative and legislative matters of the state.

In addition, the governor also has situational discretion (i.e., the hidden discretion derived from the exigencies of a prevailing political situation) in the following cases:

Appointment of chief minister when no party has a clear-cut majority in the state legislative assembly or when the chief minister in office dies suddenly and there is no obvious successor.

Dismissal of the council of ministers when it cannot prove the confidence of the state legislative assembly.

Dissolution of the state legislative assembly if the council of ministers has lost its majority.

 

Attorney General of India

The Constitution under Article 76 has provided for the office of the Attorney General (AG), the highest law officer in the country.

The AG is appointed by the president who must be a person qualified to be appointed a judge of the Supreme Court.

The term of office of the AG is not fixed by the Constitution nor does it contain the procedure for his removal.

AG holds office during the pleasure of the president so he may be removed by the president at any time.

He may also quit his office by submitting his resignation to the president. Conventionally, he resigns when the government (council of ministers) resigns or is replaced, as he is appointed on its advice.

AG receives such remuneration as the president may determine.

Duties and Functions

As the chief law officer the duties of the AG include the following:

To give advice to the Government upon legal matters which are referred to him by the president.

To perform duties of a legal character that are assigned to him by the president.

To discharge the functions conferred on him by the Constitution or any other law.

The president has assigned the following duties to the AG:

Appear on behalf of the Government of India in all cases in the Supreme Court in which the Government is concerned.

To represent the Government in any reference to the Supreme Court under Article 143 of the Constitution.

To appear, when required by the Government, in any high court in any case in which the Government of India is concerned.

Rights and Limitations

The AG has the right of audience in all courts, he has the right to speak and take part in the proceedings of both the Houses of Parliament or their joint sitting and any committee of the Parliament of which he may be named a member, but without a right to vote.

AG enjoys the privileges and immunities that are available to a member of Parliament along with some limitations like he should not advise or hold a brief against the Government, AG should not defend accused persons in criminal prosecutions without the permission of the Government.

He should not accept appointment as a director in any company or corporation without the permission of the Government of India.

The Attorney General is not a full-time counsel for the Government. He does not fall in the category of government servants. Further, he is not debarred from private legal practice. The AG is not a member of the Central cabinet. There is a separate law minister in the Central cabinet to look after legal matters at the government level.

Solicitor General of India

There other law officers of the Government are the solicitor general of India and additional solicitor general of India.

They assist the AG in the fulfillment of his official responsibilities.

Article 76 does not mention about the solicitor general and additional solicitor general.

Finance Commission

Article 280 of the Constitution of India provides for a Finance Commission as a quasi- judicial body. It is constituted by the president of India every fifth year or at such earlier time as he considers necessary.

Composition

The Finance Commission consists of a chairman and four other members to be appointed by the president. They hold office for such period as specified by the president in his order. They are eligible for reappointment.

The Constitution authorizes the Parliament to determine the qualifications of members of the commission and the manner in which they should be selected. Accordingly, the Parliament has specified the qualifications of the chairman and members of the commission. The chairman should be a person having experience in public affairs and the four other members should be selected from amongst the following:

A judge of high court or one qualified to be appointed as one.

A person who has specialized knowledge of finance and accounts of the government.

A person who has wide experience in financial matters and in administration.

A person who has special knowledge of economics.

Functions

The Finance Commission is required to make recommendations to the president of India on the following matters:

The distribution of the net proceeds of taxes to be shared between the Centre and the states, and the allocation between the states of the respective shares of such proceeds.

The principles that should govern the grants-in-aid to the states by the Centre (i.e., out of the consolidated fund of India).

The measures needed to augment the consolidated fund of a state to supplement the resources of the panchayats and the municipalities in the state on the basis of the recommendations made by the state finance commission.

Any other matter referred to it by the president in the interests of sound finance.

The commission submits its report to the president. He lays it before both the Houses of Parliament along with an explanatory memorandum as to the action taken on its recommendations.

LECTURE NOTE (IN CONTINUATION OF UNION EXECUTIVE)

STATE – EXECUTIVE

(GOVERNOR, CHIEF MINITER COUNCIL OF MINISTERS AND

ADVOCATED GENERAL OF STATE)

 

The constitution of India envisages the same pattern of Govt. in the states as that of centre, that’s parliamentary system part VI of the constitution, which deals with Govt. in the states is not applicable to state of JAMMU AND KASHMIR, which enjoys spl status and has a separate constitution of its own (Art370)

Art 153 to 167 in part VI of the constitution

Deal with state executive. The state executive consist of.

GOVERNOR

CHIEF MINISTER

COUNCIL OF MINISTER

ADVOCATE GENERAL OF THE STATE

 

Governor :-     (Constitution at arrangement)

153:-“There shall be a governor for each state”. (The 7th amendment 1956 added that nothing in this Article shall prevent the appointment of the same person as governor for two or more states)

This is normally R/W article 158 3(A) (Inserted by 7th amendment act 1956) where in it is categorically stated that where the same person is appointed as governor of two more states, the emoluments and allowances of the governor shall be allocated among states in such proportion as the president may by order determine.

154(1):-     The executive power of state shall be vested in the governor and shall be exercised by him either Directly through officers subordinate to him in accordance with this constitution.

 

Now in this provision there are Four important expressions in 154 (1)

          “VESTED IN THE GOVERNOR”

          “Executive power or functions”

          “To be exercised through officers subordinate to him” ] (Issues connected)

          “In accordance with this constitution”

 

155:- Appointed by the president by warrant under his hand and seal.

          

Now article 156 the term of office of governor and article 157 qualification for

          

Appointment as governor or article 158, condition of governor office-“this is clause (1)”

          

(2) (3) (4) of article 158.

Apart from Four expressions mentioned in 154(1) there is a small issue in 156(1) that “shall

hold office during the pleasure of the president .(connected used with relevant case law).

156(2):-The governor by writing under his hand addressed to the prez resign his office.

156(3):- Shall hold office for a term of five years from the date on which he enters upon his office

The proviso of 156(3) says that the governor shall hold office until his successors

Enters upon his office.

Article 157 in respect of qualifications includes “He must be citizen of India or has.

Competed the age of 35 years. Article 158: Further under the caption “condition of governor:, it is also included 158(1): 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 1st schedule or if appointed he shall be deemed to have vacated his seat in that house on the date on which he enters upon his office as governor.

 

158(3):-Governor shall be entitled without payments if rent to the use of his official residents emoluments, allowances, privileges to him as may be determined by parliament by law and until provisions in that. Behalf is so made such emolument allowances and privileges as are specified in the second schedule. – (small issue)

158(4):- Emoluments and allowances of governor shall not be diminished during his term of office.

159. Oath or affirmation by the Governor- Every Governor and every person discharging the functions of the governor shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of the High Court exercising jurisdiction in relation to the State, or, in absence, the senior most Judge of that Court available, an oath or affirmation in the following form, that is to say-

161. Power of governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases. – The governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends

Connected issue (already deaet with in the Pardoning Powers of president vis – airs Governor)

162. Extent of executive power of State – Subject to the provisions of this Constitution, the executive power of a Sate shall extend to the matters with respect to which the Legislature of the State has power to make laws:

Provided that in any matter with respect t to which the Legislature of a Sate and Parliament have power to make laws, the executive power of the State shall by subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.

Connected issue (already clear with)

Council of Ministers

163. Council of Ministers to aid and advise Governor – (1) There shall be a Council of Ministers with the Chief Minister as the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and.

(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.

(Connected issue)

164. Other provisions as to Ministers. – (1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor:

Provided that in the States of 1[Chattisgarh, Jharkhand], Madhya Pradesh and 2[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[1A) The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent. Of the total number of members of the Legislative Assembly of that State:

Provided that the number of Minister, including the Chief Minister, in a State shall not be less than twelve:

Provided further that where the total number of Ministers, including the Chief Minister, in the Council of Ministers in any State at the commencement of the Constitution (Ninety-first Amendment) Act, 2003 exceeds the said fifteen per cent. Or the number specified in the first proviso, as the case may be, then the total number of Ministers in that State shall be brought in conformity with the provisions of this clause within six months from such date* as the President may by public notification appoint. ]

3[(1B) A member of the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the

Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing form the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a state or either House of the expiry of such period, till the date on which he is declared elected, whichever is earlier.

(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.

(3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of office and of secrecy according to the forms set out for the purpose in the Third Schedule.

(4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minster.

(5) The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified in the Second Schedule.

Connected issue

The Advocate-General for the State

165. Advocate-General for the State. – (1) The Governor of each State shall appoint a person who is qualified to be appointed a Judge of High Court to be Advocate – General for the State.

(2) It shall be the duty of the Advocate-General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.

(3) The Advocate-General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine.

Connected issue

Conduct of Government Business

166. Conduct of business of the Government of a State. – (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.

(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.

(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.

167. Duties of Chief Minister as respects the furnishing of information to Governor, etc – It shall be the duty of the Chief Minister of each State-

(a) to communicate to the Governor of the State all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation;

(b) To furnish such information relating to the administration of the affairs of the State and proposals for legislation as the Governor may call for; and

(c) if the Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.

Connected issue

 

PRELIMINARY QUESTIONS

1. Governor is mere titular head of the State. He has some discretionary powers in the exercise of which he need not take advice given to him by Council of Minister. These matters are

(a) reservation of any bill for the consent of the President

(b) appointment of the Chairman of the Upper House.

(c) special address of the governor after general election

(d) appointment of the Advocate- General.

2. The power of the President are

(a) beyond the Constitution

(b) in accordance with the Constitution

(c) in accordance with the Parliament only.

(d) Supra- Constitutional

3. If President wants to tender his resignation before expiry of his normal term he has to address the same to:

(a) Chief Justice of India

(b) Parliament

(c) Prime – Minister

(d) Vice President

4. The salary and allowances of the Governor

(a) Consolidated Fund of the State

(b) Consolidated Fund of the India

(c) Contingency Fund of the India

(d) (a) & (b) in equal proportion.

5. The Comptroller and Auditor General (CAG) is appointed by

(a) The President

(b) The Council of Ministers

(c) The Prime Minister

(d) The Speaker of the Lok Sabha

6. The President of India has no power to remove

(a) by an order the Chairman or any other member of UPSC only after the report from Supreme Court.

(b) by an order the Chairman or other members of State Public Service Commission only after the report from Supreme Court.

(c) Advocate- General of a State

(d) A judge of Supreme Court in accordance with the procedure prescribed.

7. Any charge for impeachment of the President may be preferred.

(a) only in the House of People

(b) only in Council of States

(c) only in joint session of the Parliament

(d) by either House of Parliament

8. The President’s Rule under Article 356 remains valid in the State for the maximum period of

(a) one year

(b) two years

(c) six months

(d) nine months

9. ___________ refers to when the President neither ratifies nor rejects nor returns the bill, but simply keeps the bill pending for an indefinite period.

a) Suspensive Veto

b) Pocket Veto

c) Absolute Veto

d) None of the above

10. _________ Constitutional Amendment made it obligatory for the President to give his assent to a Constitutional Amendment Bill.

a) 44th

b) 24th

c) 96th

d) 87th

 

Parliament and State Legislatures

LECTURE – 6 B

Mains Questions

 

1. Discuss the Composition Structure of Rajya Sabha and Lok Sabha.

 

2. What are the qualifications and disqualifications for Membership of Parliament?

 

3. What are the powers and functions of Speaker of Lok Sabha?

 

4. Distinguish between Censure Motion and No-Confidence Motion.

 

5. What is Money Bill?

 

6. Discuss the stages in Budget Enactment.

 

7. Define Funds. Explain different kinds of funds for the Central Government.

 

Parliament and State Legislatures

Introduction

Article 79 to 122 in Part V enumerates the organisation, composition, duration, officers, procedures, privilege, powers of the Parliament.

 

Organisation of Parliament

Parliament of India consists of three parts the President, the Council of States and the House of the People.

The framers of the Indian Constitution relied on the British pattern rather than the American pattern.

 

Composition of Rajya Sabha

The maximum strength is 250; 238 are to be the representatives of the states and union territories (elected indirectly) and 12 are nominated by the president.

At present, the Rajya Sabha has 245 members.

The Fourth Schedule of the Constitution deals with the allocation of seats in the Rajya Sabha to the states and union territories.

Representation of States in the Rajya Sabha are elected by the elected members of state legislative assemblies. In accordance with the system of proportional representation by means of the single transferable vote. The seats are allotted to the states in the Rajya Sabha on the basis of population.

This election is held in accordance with the system of proportional representation by means of the single transferable vote. Out of the seven union territories, only two (Delhi and Puducherry) have representation in Rajya Sabha.

The president nominates 12 members to the Rajya Sabha from people who have special knowledge or practical experience.

Composition of Lok Sabha

The maximum strength of the Lok Sabha is fixed at 552. Out of this, 530 members are to be the representatives of the states. 20 members are to be the representatives of the Union territories and 2 members are to be nominated by the president from the Anglo-Indian community.

At present, the Lok Sabha has 545 members.

Representation of States. The representatives of states in the Lok Sabha are directly elected by the people from the territorial constituencies in the states. Based on the principle of universal adult franchise, Every Indian citizen who is above 18 years of age and who is not under the provisions of the Constitution or any law is eligible to vote at such election. The voting age was reduced from 21 to 18 years by the 61st Constitutional Amendment Act, 1988.

Constitution has empowered the Parliament to prescribe the manner of choosing the representatives of the union territories in the Lok Sabha.

The provision of nominated members was to operate till 1960 but has been extended till 2020 by the 95th Amendment Act, 2009.

Territorial Constituencies

For the purpose of holding direct elections to the Lok Sabha, each state is divided into territorial constituencies.

Each state is allotted a number of seats in time Lok Sabha in such a manner that the ration between that number and its population is the same for all states.

Each state is divided into territorial constituency in such a manner that the ratio between the population of each constituency and the number of seats allotted to it is the same throughout the state.

Readjustment after each Census

After every census, a readjustment is to be nude in (a) allocation of seats in the Lok Sabha to the states, and (b) division of each state into territorial constituencies. Parliament is empowered to determine the authority and the manner in which it is to be made.

The 42nd Amendment Act of 1976 froze the allocation of seats in the Lok Sabha to the states till the year 2000 at the 1971 level. This ban on readjustment was extended for another 25 years (i.e., up to year 2026) by the 84th Amendment Act of 2002.

Later, the 87th Amendment Act of 2003 provided for the delimitation of constituencies on the basis of 2001 census and not 1991 census without altering the number of seats allotted to each state in the Lok Sabha.

Reservation of Seats for SCs and STs

Though the Constitution has abandoned the system of communal representation, it provides for reservation of seats for scheduled castes and scheduled tribes on the basis of population ratios under the 95th Amendment Act of 2009, this reservation is to last until 2020.

Seats are reserved for scheduled castes and scheduled tribes, are elected by all the voters in a constituency. A member of scheduled castes and scheduled tribes is also not debarred from contesting a general.

Territorial Representation

Lok Sabha, has adopted the system of territorial representation for the election of members to the Lok Sabha.

Under territorial representation, every member of the legislature represents a geographical area known as a constituency known as single-member constituency. A candidate who secures majority of votes is declared elected.

There are two kinds of proportional representations, namely, single transferable vote system and list system. In India, the first kind is adopted for the election of members of the Rajya Sabha and state legislative council and for electing the President and the Vice-President.

Duration of Two Houses

The Rajya Sabha is a continuing chamber, that is, it is a permanent body and not subject to dissolution. One-third of its members retire every second year. Their seats are filled up by fresh elections and presidential nominations at the beginning of every third year. The retiring members are eligible for re-election and re-nomination any number of times.

Parliament in the Representation of the People Act (1951) provided that the term of office of a member of the Rajya Sabha shall be six years.

Lok Sabha’s normal term is five years from the date of its first meeting after the general elections, after which it automatically dissolves. President is authorised to dissolve the Lok Sabha at any time even before the completion of five years and this cannot be challenged in a court of law.

The term of the Lok Sabha can be extended during the period of national emergency be a law of Parliament for one year at a time for any length of time. This extension cannot continue beyond a period of six months after the emergency has ceased to operate.

Membership of Parliament

Qualifications

A person to be chosen a member of the Parliament

He must be a citizen of India.

He must make and subscribe to an oath or affirmation before the person authorised by the election commission for this purpose. In his oath or affirmation, he swears.

To bear true faith and allegiance to the Constitution of India

To uphold the sovereignty and integrity of India

 

He must be not less than 30 years of age in the case of the Rajya Sabha and not less than 25 years of age in the case of the Lok Sabha.

The Parliament has laid down additional qualifications in the Representation of People Act (1951).

He must be registered as an elector for a parliamentary constituency. This is same in the case of both, the Rajya Sabha and the Lok Sabha. A candidate contesting an election to the Rajya Sabha from a particular state was dispensed with in 2003.

Disqualifications

Under the Constitution, a person shall be disqualified for being elected as a member of Parliament:

If he holds any office of profit under the Union or state government.

If he is of unsound mind and stands so declared by a court.

If he is an undischarged insolvent.

If he is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance to a foreign state.

If he is so disqualified under any law made by Parliament.

The Parliament has laid down the following additional disqualifications in the Representation of People Act (1951).

He must not have been found guilty of certain election offences or corrupt practices in the elections.

He must not have been convicted for any offence resulting in imprisonment for two or more years.

He must not have failed to lodge an account of his election expenses within the time.

He must not have any interest in government contracts, works or services.

He must not have been punished for preaching and practising social crimes such as untouchability, dowry and sati.

 

Disqualification

On the ground of Defection

The Constitution mentions that a person shall be disqualified from being a member of Parliament if he is so disqualified on the ground of defection under the provisions of the Tenth Schedule. A member incurs disqualification under the defection law: if he voluntary gives up the membership of the political party on whose ticket he is elected to the House; if he votes or abstains from voting in the House contrary to any direction given by his political party;

if any independently elected member joins any political party; and

if any nominated member joins any political party after the expiry of six months.

In 1992, the Supreme Court ruled that the decision of the Chairman/ Speaker in this regard is subject to judicial review.

The question of disqualification under the Tenth Schedule is decided by the Chairman in the case of Rajya Sabha and Speaker in the case of Lok Sabha (and not by the president).

Double Membership

According to the Representation of People Act, 1951 A member of Parliament vacates his seat in case of double membership. A person if elected to both the Houses of Parliament, he must intimate within 10 days in which House he desires to serve.

If a sitting member of one House is also elected to the other House, his seat in the first House becomes vacant.

If a person is elected to two seats in a House, he should exercise his option for one. Otherwise, both seats become vacant.

A person cannot be a member of both the Parliament and the state legislature at the same time.

Resignation

A member may resign his seat by writing to the Chairman of Rajya Sabha or Speaker of Lok Sabha.

The seat falls vacant when the resignation is accepted.

 

Absence

A House can declare the seat of a member vacant if he is absent from all its meetings for a period of sixty days without its permission.

A member has to vacate his seat in the Parliament:

if his election is declared void by the court;

if expelled by the House;

if elected to the office of President or Vice-President; and

if appointed to the office of governor of a state

If a disqualified person is elected to the Parliament, the Constitution lays down no procedure to declare the election void. This matter is dealt by the Representation of the People Act (1951), which enables the high court to declare an election void if a disqualified candidate is elected.

The salaries and allowances of the Speaker of Lok Sabha and the Chairman of Rajya Sabha are determined by Parliament. They are charged on the Consolidated Fund of India and thus are not subject to the annual vote of Parliament. In 1953, the Parliament enacted the Salaries and Allowances of Officers of Parliament Act.

Presiding Officers

There is a Speaker and a Deputy Speaker for the Lok Sabha and a Chairman and a Deputy Chairman for the Rajya Sabha.

A panel of chairpersons for the Lok Sabha and a panel of vice-chairpersons for the Rajya Sabha also exists.

Speaker of Lok Sabha

The Speaks is elected by the Lok Sabha from amongst its members (as soon as may be, after its first sitting).

When the office of the Speaker falls vacant, the Lok Sabha elects another member to fill the vacancy.

The date of election of the Speaker is fixed by the President.

Usually Speaker is in office during the life of the Lok Sabha. However, he has to vacate his office in cases he ceases to be a member of the Lok Sabha; he resigns by writing to the Deputy Speaker; and he is removed by a resolution passed by a majority of all the members of the Lok Sabha.

Such resolution can be moved only after giving 14 days’ advance notice.

When a resolution for the removal of the Speaker is under consideration of the House, he cannot preside at the sitting of the House, but may be present in which he can speak and take part in the proceedings and vote in the first instance, though not in the case of an equality of votes.

Whenever Lok Sabha is dissolved, the Speaker does not vacate his office and continues till the newly- elected Lok Sabha meets.

Powers and Functions

The Speaker is the head of the Lok Sabha.

He is the guardian of powers and privileges of the members, the House and its committees.

He is the principal spokesman of the House, and his decision in all Parliamentary matters is final.

The Speaker derives his powers and duties from three sources – the Constitution of India, the Rules of Procedure and Conduct of Business of Lok Sabha, and Parliamentary Conventions (residuary powers that are unwritten or unspecified in the Rules).

His primary responsibility is maintaining order and decorum in the House for conducting its business and regulating its proceedings in which he has final power in this regard.

He is the final interpreter of the provisions of (a) the Constitution of India, (b) the Rules of Procedure and Conduct of Business of Lok Sabha, and (c) the parliamentary precedents, within the House.

He adjourns the House or suspends the meeting in absence of a quorum. (The quorum to constitute a meeting of the House is one-tenth of the total strength of the House).

He does not vote in the first instance but he in case of a tie. This is called casting vote, and its purpose is to resolve a deadlock.

He presides over a joint setting of the two Houses of Parliament. Such a sitting is summoned by the President to settle a deadlock between the two Houses on a bill.

He can allow a ‘secret’ sitting of the House at the request of the Leader of the House. When the House sits in secret, no stranger can be present in the chamber, lobby or galleries except with the permission of the Speaker.

He decides whether a bill is a money bill or not and his decision on this question is final.

He decides the questions of disqualification of a member of the Lok Sabha, arising on the ground of defection under the provisions of the Tenth Schedule.

He acts as the ex-officio chairman of the Indian Parliamentary Group of the Inter Parliamentary Union. He also acts as the ex-officio chairman of the conference of presiding officers of legislative bodies in the country.

He appoints the chairman of all the parliamentary committees of the Lok Sabha and supervises their functioning.

He is the chairman of the Business Advisory Committee, the Rules Committee and the General Purpose Committee. Independence and Impartiality As the office of the Speaker is vested with great prestige, position and authority, independence and impartiality becomes its sine qua non.

 

Independence and Impartiality

He is provided with a security of tenure.

He can be removed only by a resolution passed by the Lok Sabha by an absolute majority (i.e., a majority of the total members of the House)

This motion of removal can be considered and discussed only when it has the support of at least 50 members.

Since his salaries and allowances are fixed by Parliament they are charged on the Consolidated Fund of India and thus are not subject to the annual vote of Parliament.

His work and conduct cannot be discussed and criticised in the Lok Sabha except on a substantive motion.

His powers of regulating procedure or conducting business or maintaining order in the House are not subject to the jurisdiction of any Court.

He has a very high position in the order of precedence. He is placed at seventh rank, along with the Chief Justice of India. This means, he has a higher rank than all cabinet ministers, except the Prime Minister or Deputy Prime Minister.

Deputy Speaker of Lok Sabha Like the Speaker, the Deputy Speaker is also elected by the Lok Sabha itself from amongst its members. He is elected after the election of the Speaker has taken place. The date of election of the Deputy Speaker is fixed by the Speaker. Whenever the office of the Deputy Speaker falls vacant, the Lok Sabha elects another member to fill the vacancy. Like the Speaker, the Deputy Speaker remains in office usually during the life of the Lok Sabha.

He also acts as the Speaker when the latter is absent from the sitting of the House. In both the cases, he assumes all the powers of the Speaker. He presides over the joint sitting of both the Houses of Parliament, in case the Speaker is absent from such a sitting.

Deputy Speaker is not subordinate to the Speaker. He is directly responsible to the House. The Deputy Speaker has one special privilege, whenever he is appointed as a member of a parliamentary committee, he automatically becomes its chairman.

The Speaker and the Deputy Speaker, while assuming their offices, do not make and subscribe any separate oath or affirmation.

The institutions of Speaker and Deputy Speaker originated in India in 1921 under the provisions of the Government of India Act of 1919 (Montague-Chelmsford Reforms.

In 1921, the Frederick Whyte and Sachidanand Sinha were appointed as the first Speaker and the first Deputy Speaker (respectively) of the central legislative assembly. In 1925, Vithalbhai J. Patel became the first Indian and the first elected Speaker of the central legislative assembly.

G.V. Mavalankar and Ananthasayanam Ayyangar were the first Speaker and the first Deputy Speaker (respectively) of the Lok Sabha.

The Speaker nominates from amongst the members a panel of not more than ten chairperson to form the panel of chairpersons of Lok Sabha.

Any of them can preside over the House in the absence of the Speaker or the Deputy Speaker.

A member of the panel of chairpersons cannot preside over the House, when the office of the Speaker or the Deputy Speaker is vacant. Here Speaker’s duties are to be performed by such member of the House as the President may appoint for the purpose.

The elections are held, as soon as possible, to fill the vacant posts.

Speaker Pro Tem

The Speaker of the last Lok Sabha vacates his office immediately before the first meeting of the newly- elected Lok Sabha so the President appoints a member of the Lok Sabha as the Speaker Pro Tem.

The senior most member is selected usually.

The Speaker Pro Tem has all the powers of the Speaker. He presides over the first sitting of the newly-elected Lok Sabha.

His main duty is to administer oath to the new members. He also enables the House to elect the new Speaker.

When the new Speaker is elected by the House, the office of the Speaker Pro Tem ceases to exist.

Chairman of Rajya Sabha

The vice-president of India is the ex-officio Chairman of the Rajya Sabha.

When the Vice-President acts as President or discharges the functions of the President, he does not perform the duties of the office of the Chairman of Rajya Sabha.

The Chairman of the Rajya Sabha can be removed from his office only if he is removed from the office of the Vice-President.

As a presiding officer, the powers and functions of the Chairman in the Rajya Sabha are similar to those of the Speaker in the Lok Sabha.

Unlike the Speaker the Chairman is not a member of the House. The Chairman also cannot vote in the first instance, can cast a vote in the case of an equality of votes.

The Vice-President cannot preside over a sitting of the Rajya Sabha as its Chairman when a resolution for his removal is under consideration.

But, can be present and speak in the House and can take part in its proceedings, without voting, even at such a time.

The salaries and allowances of the Chairman are also fixed by the Parliament charged on the Consolidated Fund of India, thus are not subject to the annual vote of Parliament.

During any period when the Vice-President acts as President or discharges the functions of the President, he is paid the salary and allowance of the President during such a time.

The Deputy Chairman performs the duties of the Chairman’s office when it is vacant or when the Vice-President acts as President or discharges the functions of the President.

Leader of the House

According to the Rules of Lok Sabha, the ‘Leader of the House’ means the prime minister, if he is a member of the Lok Sabha, or a minister who is a member of the Lok Sabha and is nominated by the prime minister to function as the Leader of the House.

There is also a ‘Leader of the House’ in the Rajya Sabha. He is a minister and a member of the Rajya Sabha and is nominated by the prime minister to function as such.

 

Leader of the Opposition

In each House of Parliament, there is the ‘Leader of the Opposition’ who is the leader of the largest Opposition party having not less than one-tenth seats of the total strength of the House.

In a parliamentary system of government, the leader of the opposition has a significant role to play whose main functions are to provide a constructive criticism of the policies of the government and to provide an alternative government.

The leader of Opposition in the Lok Sabha and the Rajya Sabha were accorded statutory recognition in 1977.

They are also entitled to the salary, allowances and other facilities equivalent to that of a cabinet minister.

Whip

The offices of the leader of the House and the leader of the Opposition are not mentioned in the Constitution but are mentioned in the Rules of the House and Parliamentary Statute respectively.

The office of ‘whip’ is not mentioned in the Rules of the House or in a Parliamentary Statute.

It is based on the conventions of the parliamentary government. Every political party, whether ruling or Opposition has its own whip in the Parliament.

He is charged with the responsibility of ensuring the attendance of his party members and securing their support in favour of or against a particular issue and regulates their behaviour.

The members are supposed to follow the directives given by the whip. Otherwise, disciplinary action can be taken.

 

Sessions of Parliament

Summoning

The president summons each House of Parliament to meet, the maximum gap between two sessions of Parliament cannot be more than six months.

There are usually three sessions in a year, viz

Budget Session (February to May);

Monsoon Session (July to September); and

Winter Session (November to December)

A ‘session’ of Parliament is the period spanning between the first sitting of a House and its prorogation (or dissolution in the case of the Lok Sabha).

The period spanning between the prorogation of a House and its reassembly in a new session is called ‘recess’.

 

Adjournment

Suspending the work in a sitting for a specified time, which may be hours, days or weeks.

Adjournment sine die means terminating a sitting of Parliament for an indefinite period, when the House is adjourned without naming a day for reassembly.

The power of adjournment as well as adjournment sine die lies with the presiding officer of the House.

 

Prorogation

The presiding officer (Speaker or Chairman) declares the House adjourned sine die, when the business of a session is completed.

Within the next few days, the President issues a notification for prorogation of the session.

However, the President can also prorogue the House while in session.

Dissolution

Rajya Sabha is a permanent House so not subject to dissolution.

Only the Lok Sabha is subject to dissolution.

Dissolution ends the very life of the existing House, and a new House is constituted after general elections are held. The conditions of dissolution are:

Automatic dissolution on the expiry of its tenure of five years or the terms as extended during a national emergency; or

Whenever the President decides to dissolve the House. Once the Lok Sabha is dissolved before the completion of its normal tenure, the dissolution is irrevocable.

When the Lok Sabha is dissolved, all business including bills, motions, resolutions, notices, petitions pending before it or its committees lapse.

They must be reintroduced in the newly constituted Lok Sabha.

Some pending bills and all pending assurances that are to be examined by the Committee on Government Assurances do not lapse on the dissolution of the Lok Sabha.

The position with respect to lapsing of bills

A bill pending in the Lok Sabha lapses (whether originating in the Lok Sabha or transmitted to it by the Rajya Sabha).

A bill passed by the Lok Sabha but pending in the Rajya Sabha lapses.

A bill not passed by the two Houses due to disagreement and if the president has notified the holding of a joint sitting before the dissolution of Lok Sabha, does not lapse.

A bill pending in the Rajya Sabha but not passed by the Lok Sabha does not lapse.

A bill passed by both Houses but pending assent of the president does not lapse.

A bill passed by both Houses but returned by the president for reconsideration of Houses does not lapse.1

 

Quorum

Quorum is the minimum number of members required to be present in the House before it can transact any business.

It is one-tenth of the total number of members in each House including the presiding officer.

It means that there must be at least 55 members present in the Lok Sabha and 25 members present in the Rajya Sabha, if any business is to be conducted.

Voting in House

All matters in either House or joint sitting of both the Houses are decided by a majority of votes of the members present and voting, excluding the presiding officer.

Matters which are specifically mentioned in the Constitution like impeachment of the President, amendment of the Constitution, removal of the presiding officers of the Parliament require special majority, not ordinary majority.

Language in Parliament

The Constitution has declared Hindi and English to be the languages for transacting business in the Parliament.

The presiding officer can permit a member to address the House in his mother tongue.

Rights of Ministers

In addition to the members of a House, every minister and the attorney general of India have the right to speak and take part in the proceedings of either House, any joint sitting of both the Houses and any committee of Parliament of which he is a member, without being entitled to vote.

A minister can participate in the proceedings of a House, of which he is not a member.

A minister, who is not a member of either House, can participate in the proceedings of both the Houses.

A person can remain a minister for six months, without being a member of either House of Parliament.

Parliamentary Proceedings

Question Hour: The first hour of every parliamentary sitting is slotted for this. Members ask questions and the ministers usually give answers to three types of questions, namely, starred, unstarred and short notice. A starred question is distinguished by an asterisk which requires an oral answer so supplementary questions can follow. An unstarred question requires a written answer and hence, supplementary questions cannot follow. A short notice question is one asked by giving a notice of less than ten days. It is answered orally.

Zero Hour is not mentioned in the Rules of Procedure. It is a device available to the members of the Parliament to raise matters without any prior notice. The zero hour starts immediately after the question hour and lasts until the agenda for the day is taken up. It is an Indian innovation in the field of parliamentary procedures and has been in existence since 1962.

Motions

No discussion on general public matter can take place except on a motion made with the consent of the presiding officer.

The House expresses its decisions or opinions on various issues through the adoption or rejection of motions moved by either ministers or private members.

The motions to raise discussions on various matters fail into three principal categories:

Substantive Motion, a self-contained independent proposal dealing with a very important matter like impeachment of the President or removal of Chief Election Commissioner.

Substitute Motion, a motion that is moved in substitution of an original motion and proposes an alternative to it. It adopted by the House, it supersedes the original motion.

Subsidiary Motion by itself has no meaning and cannot state the decision of the House without reference to the original motion or proceedings of the House.

Subsidiary motion is divided into three sub-categories:

Ancillary Motion is used as the regular way of proceeding with various kinds of business.

Superseding Motion is moved in the course of debate on another issue and seeks to supersede that issue.

Amendment seeks to modify or substitute only a part of the original motion.

• Closure Motion is a motion moved by a member to cut short the debate on a matter before the House.
• lf the motion is approved by the House debate is stopped forthwith and the matter is put to vote. There are four kinds of closure motions.

Simple Closure: It is one when a member moves that the ‘matter having been sufficiently discussed be now put to vote’.

Closure by Compartments: In this case, the clauses of a bill or a lengthy resolution are grouped into parts before the commencement of the debate. The debate covers the part as a whole and the entire part is put to vote.

Kangaroo Closure: only important clauses are taken up for debate and voting and the intervening clauses are skipped over and taken as passed.

CENSURE MOTION vs NO CONFIDENCE MOTION

Guillotine Closure: It is one when the undiscussed clauses of a bill or a resolution are also put to vote along with the discussed ones due to want of time (as the time allotted for the discussion is over).

• Privilege Motion is concerned with the breach of parliamentary privileges by a minister is moved by a member when he feels that a minister has committed a breach of privilege of the House by withholding facts, or by giving wrong or distorted facts. Its purpose is to censure the concerned minister.
• Calling Attention Motion is introduced in the Parliament by a member to call the attention of a minister to a matter of urgent public importance, and to seek an authoritative statement from him on that matter. It is an Indian innovation in the parliamentary procedure and has been in existence since 1954 and is mentioned in the Rules of Procedure.
• Adjournment Motion is introduced in the Parliament to draw attention of the House to a definite matter of urgent public importance, and needs the support of 50 members to be admitted. The right to move a motion for an adjournment is subject to raising a matter which is definite, factual, urgent and of public importance.
• No-Confidence Motion, Article 75 says that the council of ministers shall be collectively responsible to the Lok Sabha. It means that the ministry stays in office so long as it enjoys confidence of the majority of the members of the Lok Sabha. It needs the support of 50 members to be admitted.
• Motion of Thanks is the first session after each general election and the first session of every fiscal year addressed by the president. The president outlines the policies and programmes of the government in the preceding year and ensuing year. At the end of the discussion, the motion is put to vote and it must be passed in the House. Otherwise, it amounts to the defeat of the government.
• No-Day-Yet-Named Motion is a motion that has been admitted by the Speaker but no date has been fixed for its discussion.
• Point of Order can raises a point of order when the proceedings of the House do not follow the normal rules of procedure. It is usually raised by an opposition member in order to control the government. It is extraordinary procedure as it suspends the proceedings before the House. Here no debate is allowed.
• Half-an-Hour Discussion, the Speaker can allot three days in a week for such discussions meant for discussing a matter of sufficient public importance.
• Short Duration Discussion also known as two-hour discussion as the time allotted for such a discussion should not exceed two hours. This device has been in existence since 1953.

Resolutions

The members can move resolutions to draw the attention of the House to matters of general public interest. The discussion must be strictly relevant to and within the scope of the resolution. They are put into three categories:

• Private Member’s Resolution moved by a private member (other than a minister), discussed only on alternate Fridays and in the afternoon sitting.
• Government Resolution is one that is moved by a minister.
• Statutory Resolution can be moved either by a private member or a minister. It is always tabled in pursuance of a provision in the Constitution or an Act of Parliament.

Further, all motions are not necessarily put to vote of the House, whereas all the resolutions are required to be voted upon.

Youth Parliament was started on the recommendation of the Fourth All India Whips Conference with the objective to acquaint the younger generations with practices and procedures of Parliament. The ministry of parliamentary affairs provides necessary training and encouragement to the states in introducing the scheme.

Legislative Procedure in Parliament

The legislative procedure is identical in both the Houses of Parliament. Every bill has to pass through the same stages in each House. Bills introduced in the Parliament are of two kinds: public bills and private bills (also known as government bills and private members’ bills respectively).

The bills introduced in the Parliament can be further classified into four categories:

• Ordinary bills, which are concerned with any matter other than financial subjects.
• Money bills, which are concerned with the financial matters like taxation, public expenditure, etc.
• Financial bills, which are also concerned with financial matters (but are different from money bills).
• Constitution amendment bills, which are concerned with the amendment of the provisions of the Constitution.

The Constitution has laid down separate procedures for the enactment of all the four types of bills.

Ordinary Bills

Every ordinary bill has to pass through the following five stages in the Parliament:

First Reading: An ordinary bill can be introduced in either House of Parliament. The member who wants to introduce the bill has to ask for the leave of the House. No discussion on the bill takes place at this stage. Later, the bill is published in the Gazette of India. If a bill is published in the Gazette before its introduction, leave of the House to introduce the bill is not necessary.

Second Reading: During this stage, the bill receives not only the general but also the detailed scrutiny and assumes its final shape. Hence, it forms the most important stage in the enactment of a bill. In fact, this stage involves three more sub-stages, namely, stage of general discussion, committee stage and consideration stage.

Stage of General Discussion: The principles of the bill and its provisions are discussed generally, but the details of the bill are not discussed. At this stage, the House can take any one of the following tour actions:

It may take the bill into consideration immediately or on some other fixed date;

It may refer the bill to a select committee of the House;

It may refer the bill to a joint committee of the two Houses;

It may circulate the bill to elicit public opinion.

A Select Committee consists of members of the House where the bill has originated and a joint committee consists of members of both the Houses of Parliament.

• Committee Stage: The select committee examines the bill thoroughly and in detail, clause by clause. It can also amend its provisions, but without altering the principles underlying it. After completing the scrutiny and discussion, the committee reports the bill back to the House.
• Consideration Stage: The House, after receiving the bill from the select committee, considers the provisions of the bill clause by clause. Each clause is discussed and voted upon separately. The members can also move amendments and if accepted, they become part of the bill.

Third Reading: At this stage, the debate is confined to the acceptance or rejection of the bill as a whole and no amendments are allowed, as the general principles underlying the bill have already been scrutinised during the stage of second reading. If the majority of members present and voting accept the bill, the bill is regarded as passed by the House.

PUBLIC BILL vs PRIVATE BILL



Thereafter, the bill is authenticated by the presiding officer of the House and transmitted to the second House for consideration and approval.

Bill in the Second House: In the second House also, the bill passes through all the three stages discussed above. There are four alternatives before this House:

• it may pass the bill with amendments and return it to the first House for reconsideration;
• it may reject the bill altogether; and
• it may not take any action and thus keep the bill pending.

If the second House passes the bill without any amendments or the first House accepts the amendments suggested by the second House, the bill is deemed to have been passed by both the Houses and the same is sent to the president for his assent. On the other hand, if the first House rejects the amendments suggested by the second House or the second House rejects the bill altogether or the second House does not take any action for six months, a deadlock is deemed to have taken place. To resolve such a deadlock, the president can summon a joint sitting of the two Houses.

Assent of the President: Every bill after being passed by both Houses of Parliament either singly or at a joint sitting, is presented to the president for his assent. There are three alternatives before the president:

• he may give his assent to the bill; or
• he may withhold his assent to the bill; or
• he may return the bill for reconsideration of the Houses.

Money Bill

Article 110 of the Constitution deals with the definition of money bill. It states that a bill is deemed to be a money bill if it contains ‘only’ provisions dealing with all or any of the following matters:

ORDINARY BILL vs MONEY BILL

• The imposition, abolition, remission, alteration or regulation of any tax;
• The regulation of the borrowing of money by the Union government; The custody of the Consolidated Fund of India or the contingency fund of India, the payment of moneys into or the withdrawal of money from any such fund;
• The appropriation of money out of the Consolidated Fund of India;
• Declaration of any expenditure charged on the Consolidated Fund of India or increasing the amount of any such expenditure;
• The receipt of money on account of the Consolidated Fund of India or the public account of India or the custody or issue of such money, or the audit of the accounts of the Union or of a state.

Whether a bill is a money bill or not the decision of the Speaker of the Lok Sabha is final. When a money bill is transmitted to the Rajya Sabha for recommendation and presented to the president for assent, the Speaker endorses it as a money bill.

A money bill can only be introduced in the Lok Sabha and that too on the recommendation of the president. Every such bill is considered to be a government bill and can be introduced only by a minister.

After a money bill is passed by the Lok Sabha, it is transmitted to the Rajya Sabha for its consideration. The Rajya Sabha has restricted powers with regard to a money bill. It cannot reject or amend a money bill. It can only make the

recommendations. It must return the bill to the Lok Sabha within 14 days, wither with or without recommendations. The Lok Sabha can either accept or reject all or any of the recommendations of the Rajya Sabha.

If the Rajya Sabha does not return the bill to the Lok Sabha within 14 days, the bill is deemed to have been passed by both the Houses in the form originally passed by the Lok Sabha.

Finally, when a money bill is presented to the president, he may either give his assent to the bill or withhold his assent to the bill but cannot return the bill for reconsideration of the Houses. Normally, the president gives his assent to a money bill as it is introduced in the Parliament with his prior permission.

Financial Bills

Financial bills are those bills that deal with fiscal matters, that is, revenue or expenditure. Financial bills are of three kinds:

• Money bills—Article 110
• Financial bills (I) —Article 117 (1)
• Financial bills (II) — Article 117 (3)

It is clear that money bills are simply a species of financial bills. Hence, all money bills are financial bills but all financial bills are not money bills.

Financial Bills (I): A financial bill (I) is a bill that contains not only any or all the matters mentioned in Article 110, but also other matters of general legislation. For instance, a bill that contains a borrowing clause but does not exclusively deal with borrowing. In two respects, a financial bill (I) is similar to a money bill—(a) both of them can be introduced only in the Lok Sabha and not in the Rajya Sabha, and (b) both of them can be introduced only on the recommendation of the president. In all other respects, a financial bill (I) is governed by the same legislative procedure applicable to an ordinary bill. Hence, it can be either rejected or amended by the Rajya Sabha. In case of a disagreement between the two Houses over such a bill, the president can summon a joint sitting of the two Houses to resolve the deadlock. When the bill is presented to the President, he can either give his assent to the bill or withhold his assent to the bill or return the bill for reconsideration of the Houses.

Financial Bills (II): A financial bill (II) contains provisions involving expenditure from the Consolidated Fund of India, but does not include any of the matters mentioned in Article 110. The only special feature of this bill is that it cannot be passed by either House of Parliament unless the President has recommended to that House the consideration of the bill. Hence, financial bill (II) can be introduced in either House of Parliament and recommendation of the President is not necessary for its introduction.

Joint Sitting of Two Houses

Joint sitting is an extraordinary machinery provided by the Constitution to resolve a deadlock between the two Houses over the passage of a bill. A deadlock is deemed to have taken place under any one of the following three situations:

• if the bill is rejected by the other House;
• if the Houses have finally disagreed as to the amendments to be made in the bill; or
• if more than six months have elapsed from the date of the receipt of the bill by the other House without the bill being passed by it.

In the above three situations, the president can summon both the Houses to meet in a joint sitting for the purpose of deliberating and voting on the bill.

If the bill (under dispute) has already lapsed clue to the dissolution of the Lok Sabha, no joint sitting can be summoned. But, the joint sitting can be held if the Lok Sabha is dissolved after the President has notified his intention to summon such a sitting (as the bill does not lapse in this case).

The Speaker of Lok Sabha presides over a joint sitting of the two Houses and the Deputy Speaker, in his absence. If the Deputy Speaker is also absent from a joint sitting, the Deputy Chairman of Rajya Sabha presides. If he is also absent, such other person as may be determined by the members present at the joint sitting, presides over the meeting. It is clear that the Chairman of Rajya Sabha does not preside over a joint sitting as he is not a member of either House of Parliament.

The quorum to constitute a joint sitting is one-tenth of the total number of members of the two Houses. The joint sitting is governed by the Rules of Procedure of Lok Sabha and not of Rajya Sabha. If the bill in dispute is passed by a majority of the total number of members of both the Houses present and voting in the joint sitting, the bill is deemed to have been passed by both the Houses.

Budget in Parliament

The Constitution under Article 112 refers to the budget as the ‘annual financial statement’. The budget is a statement of the estimated receipts and expenditure of the Government of India in a financial year, which begins on 1 April and ends on 31 March of the following year.

The budget contains the following:

• Estimates of revenue and capital receipts;
• Ways and means to raise the revenue;
• Estimates of expenditure;
• Details of the actual receipts and expenditure of the closing financial year and the reasons for any deficit or surplus in that year; and
• Economic and financial policy of the coming year, that is, taxation proposals, prospects of revenue, spending programme and introduction of new schemes/ projects.

The Railway Budget was separated from the General Budget in 1921 on the recommendations of the Acworth Committee. The reasons or objectives of this separation are as follows:

• To introduce flexibility in railway finance.
• To facilitate a business approach to the railway policy.
• To secure stability of the general revenues by providing an assured annual contribution from railway revenues.
• To enable the railways to keep their profits for their own development (after paying a fixed annual contribution to the general revenues).

In August 2016, the Central Government decided to merge the railway budget into the general budget.

Constitutional Provisions

• The President shall in respect of every financial year cause to be laid before both the Houses of Parliament a statement of estimated receipts and expenditure of the Government of India for that year.
• No demand for a grant shall be made except on the recommendation of the President.
• No money shall be withdrawn from the Consolidated Fund of India except under appropriation made by law.
• No money bill imposing tax shall be introduced in the Parliament except on the recommendation of the President, and such a bill shall not be introduced in the Rajya Sabha.
• Parliament can reduce or abolish a tax but cannot increase it.
• The estimates of expenditure embodied in the budget shall show separately the expenditure charged on the Consolidated Fund of India and the expenditure made from the Consolidated Fund of India.
• The budget shall distinguish expenditure on revenue account from other expenditure.

Charged Expenditure

The charged expenditure is non-votable by the Parliament, that is, it can only be discussed by the Parliament, while the other type has to be voted by the Parliament. The list of the charged expenditure is as follows:

• Emoluments and allowances of the President and other expenditure relating to his office.
• Salaries and allowances of the Chairman and the Deputy Chairman of the Rajya Sabha and the Speaker and the Deputy Speaker of the Lok Sabha.
• Salaries, allowances and pensions of the judges of the Supreme Court.
• Pensions of the judges of high courts.
• Salary, allowances and pension of the Comptroller and Auditor General of India.
• Salaries, allowances and pension of the chairman and members of the Union Public Service Commission.
• Administrative expenses of the Supreme Court, the office of the Comptroller and Auditor General of India and the Union Public Service Commission including the salaries, allowances and pensions of the persons serving in these offices.
• The debt charges for which the Government of India is liable, including interest, sinking fund charges and redemption charges and other expenditure relating to the raising of loans and the service and redemption of debt.

Stages in Budget Enactment

The budget goes through the following six stages in the Parliament:

• Presentation of Budget: The Finance Minister presents the General Budget with a speech known as the ’budget speech’. At the end of the speech in the Lok Sabha, the budget is laid before the Rajya Sabha, which can only discuss it and has no power to vote on the demands for grants.
• General Discussion: The general discussion on budget begins a few days after its presentation. It takes place in both the Houses of Parliament and lasts usually for three to four days. During this stage, the Lok Sabha can discuss the budget as a whole or on any question of principle involved therein but no cut motion can be moved nor can the budget be submitted to the vote of the House.
• Scrutiny by Departmental Committees: After the general discussion on the budget is over, the Houses are adjourned for about three to four weeks. During this gap period, the 24 departmental standing committees of Parliament examine and discuss in detail the demands for grants of the concerned ministers and prepare reports on them. These reports are submitted to both the Houses of Parliament for consideration.
• Voting on Demands for Grants: In the light of the reports of the departmental standing committees, the Lok Sabha takes up voting of demands for grants. The demands are presented ministry wise. A demand becomes a grant after it has been duly voted.

During this stage, the members of Parliament can discuss the details of the budget. They can also move motions to reduce any demand for grant. Such mot-ions are called as ’cut motion’, which are of three kinds:

• Policy Cut Motion: It represents the disapproval of the policy underlying the demand. It states that the amount of the demand be reduced to Re 1. The members can also advocate an alternative policy.
• Economy Cut Motion: It represents the economy that can be affected in the proposed expenditure. It states that the amount of the demand be reduced by a specified amount (which may be either a lumpsum reduction in the demand or omission or reduction of an item in the demand).
• Token Cut Motion: It ventilates a specific grievance that is within the sphere of responsibility of the Government of India. It states that the amount of the demand be reduced by Rs.100. The cut motions do not have much utility in practice. They are only moved and discussed in the House but not passed as the government enjoys majority support. Their passage by the Lok Sabha amounts to the expressions of want of parliamentary confidence in the government and may lead to its resignation.
 
• Passing of Appropriation Bill: The Constitution states that ‘no money shall be withdrawn from the Consolidated Fund of India except under appropriation made by law’. Accordingly, an appropriation bill is introduced to provide for the appropriation, out of the Consolidated Fund of India, all money required to meet:
• The grants voted by the Lok Sabha.
• The expenditure charged on the Consolidated Fund of India.

The Appropriation Bill becomes the Appropriation Act after it is assented to by the President. This act authorises (or legalises) the payments from the Consolidated Fund of India.

This means that the government cannot withdraw money from the Consolidated Fund of India till the enactment of the appropriation bill. This takes time and usually goes on till the end of April. But the government needs money to carry on its normal activities after 31 March (the end of the financial year). To overcome this functional difficulty, the Constitution has authorised the Lok Sabha to make any grant in advance in respect to the estimated expenditure for a part of the financial year, pending the completion of the voting of the demands for grants and the enactment of the appropriation bill. This provision is known as the ‘vote on account’. It is passed (or granted) after the general discussion on budget is over. It is generally granted for two months for an amount equivalent to one-sixth of the total estimation.

• Passing of Finance Bill: The Finance Bill is introduced to give effect to the financial proposals of the Government of India for the following year. It is subjected to all the conditions applicable to a Money Bill. Unlike the Appropriation Bill, the amendments (seeking to reject or reduce a tax) can be moved in the case of finance bill. According to the Provisional Collection of Taxes Act of 1931, the Finance Bill must be enacted (i.e., passed by the Parliament and assented to by the president) within 75 days.

Funds

The Constitution of India provides for the following three kinds of funds for the Central government:

• Consolidated Fund of India (Article 266): It is a fund to which all receipts are credited and all payments are debited. In other words, (a) all revenues received by the Government of India; (b) all loans raised by the Government by the issue of treasury bills, loans or ways and means of advances; and (c) all money received by the government in repayment of loans forms the Consolidated Fund of India. No money out of this fund can be appropriated (issued or drawn) except in accordance with a parliamentary law.
• Public Account of India (Article 266): All other public money (other than those which are credited to the Consolidated Fund of India) received by or on behalf of the Government of India shall be credited to the Public Account of India. This includes provident fund deposits, judicial deposits, savings bank deposits, departmental deposits, remittances and so on. This account is operated by executive action, that is, the payments from this account can be made without parliamentary appropriation.
• Contingency Fund of India (Article 267): The Constitution authorised the Parliament to establish a ‘Contingency Fund of India’, into which amounts determined by law are paid from time to time. This fund is placed at the disposal of the president, and he can make advances out of it to meet unforeseen expenditure pending its authorisation by the Parliament. The fund is held by the finance secretary on behalf of the president.

Committees

Public Accounts Committee

This committee consists of 22 members (15 from the Lok Sabha and 7 from the Rajya Sabha). The members are elected by the Parliament every year from amongst its members according to the principle of proportional representation by means of the single transferable vote. Thus, all parties get due representation in it. The term of office of the members is one year. A minister cannot be elected as a member of the committee. The chairman of the committee is appointed by the Speaker from amongst its members. Since 1967, a convention has developed whereby the chairman of the committee is selected invariably from the Opposition.

The function of the committee is to examine the annual audit reports of the comptroller and auditor general of India (CAG), which are laid before the Parliament by the president. The CAG submits three audit reports to the president, namely, audit report on appropriation accounts, audit report on finance accounts and audit report on public undertakings. The committee examines public expenditure not only from legal and formal point of view to discover technical irregularities but also from the point of view of economy, prudence, wisdom and propriety to bring out the cases of waste, loss, corruption, extravagance, inefficiency and nugatory expenses.

Estimates Committee

Originally, the committee had 25 members but in 1956 its membership was raised to 30. All the thirty members are from Lok Sabha only. The Rajya Sabha has no representation in this committee. These members are elected by the Lok Sabha every year from amongst its members, according to the principles of proportional representation by means of a single transferable vote. Thus, all parties get due representation in it. The term of office is one year. A minister cannot be elected as a member of the committee. The chairman of the committee is appointed by the Speaker from amongst its members and he is invariably from the ruling party.

The function of the committee is to examine the estimates included in the budget and suggest ‘economies’ in public expenditure. Hence, it has been described as a ‘continuous economy committee’. The committee continues the examination of the estimates from time to time, throughout the financial year and report to the House as its examination proceeds. It is not incumbent on the committee to examine the entire estimates of any one year. The demands for grants are finally voted despite the fact that the committee has made no report.

Committee on Public Undertakings

Originally, it had 15 members (10 from the Lok Sabha and 5 from the Rajya Sabha). However, in 1974, its membership was raised to 22 (15 from the Lok Sabha and 7 from the Rajya Sabha). The members are elected by the Parliament every year from amongst its members according to the principle of proportional representation by means of a single transferable vote. Thus, all parties get due representation in it. The term of office of the members is one year. A minister cannot be elected as a member of the committee. The chairman of the committee is appointed by the Speaker from amongst its members who are drawn from the Lok Sabha only. Thus, the members of the committee who are from the Rajya Sabha cannot be appointed as the chairman.

The functions of the committee are:

• To exam.i.ne the reports and accounts of public undertakings.
• To examine the reports of the comptroller and auditor general on public undertakings.
• To examine whether the affairs of the public undertakings are being managed in accordance with sound business principles and prudent commercial practices.
• To exercise such other functions vested in the public accounts committee and the estimates Committee in relation to public undertakings which are allotted to it by the Speaker from time to time.
 

Parliamentary Privileges

Parliamentary privileges are special rights, immunities and exemptions enjoyed by the two Houses of Parliament, their committees and their members. They are necessary in order to secure the independence and effectiveness of their actions.

The Constitution has also extended the parliamentary privileges to those persons who are entitled to speak and take part in the proceedings of a House of Parliament or any of its committees. These include the attorney general of India and Union ministers. The parliamentary privileges do not extend to the president who is also an integral part of the Parliament.

Classification

Parliamentary privileges can be classified into two broad categories:

• those that are enjoyed by each House of Parliament collectively, and
• those that are enjoyed by the members individually.

Collective Privileges: The privileges belonging to each House of Parliament collectively are:

• In has the right to publish its reports, debates and proceedings and also the right to prohibit others from publishing the same.
• It can exclude strangers from its proceedings and hold secret sittings to discuss some important matters.
• It can punish members as well as outsiders for breach of its privileges or its contempt by reprimand, admonition or imprisonment (also suspension or expulsion, in case of members).
• It has the right to receive immediate information of the arrest, detention, conviction, imprisonment and release of a member.
• It can institute inquiries and order the attendance of witnesses and send for relevant papers and records.
• The courts are prohibited to inquire into the proceedings of a House or its committees.
• No person (either a member or outsider) can be arrested, and no legal process (civil or criminal) can be served within the precints of the House without the permission of the presiding officer.

Individual Privileges: The privileges belonging to the members individually are:

• They cannot be arrested during the session of Parliament and 40 days before the beginning and 40 days after the end of a session. This privilege is available only in civil cases and not in criminal cases or preventive detention cases.
• They have freedom of speech in Parliament. No member is liable to any proceedings in any court for anything said or any vote given by him in Parliament or its committees.

Breach of Privilege and Contempt of the House

When any individual or authority disregards or attacks any of the privileges, rights and immunities, either of the member individually or of the House in its collective capacity, the offence is termed as breach of privilege and is punishable by the House.

Any act or omission which obstructs a House of Parliament, its member or its officer in the performance of their functions or which has a tendency, directly or indirectly to produce results against the dignity, authority and honour of the House is treated as a contempt of the House.

[B] STATE LEGISLATURE

 

The State Legislature consists of the Governor and one or two Houses. If the State has only one ‘House, it is known as Legislative Assembly (‘Vidhan Sabha’). The other is the Legislative Council (‘Vidhan Parishad’) (Art. 168).At present, these States have a bicameral legislature – Andhra Pradesh, Bihar, Jammu & Kashmir, Karnataka, Maharashtra, and Uttar Pradesh. All the other States have only one House.

Legislative Councils can be created or abolished in a State by Parliament on the recommendation of the Legislative Assembly of the concerned State. Also, the actual strength of each House is fixed by the Parliament. The Parliament has abolished the Legislative Councils in Tamil Nadu, Punjab and West Bengal. In 2007, the Andhra Pradesh Legislative Council which was abolished in 1985 has been revived by an Act of Parliament. In M.P., there is no Legislative Council because the relevant amendment to constitute it has not been brought into force.

Legislative Assembly

This is the ‘popular House’ of the State Legislature and consists of directly elected representatives of the people. The strength of the legislative assembly varies from 60 to 500 in different States according to population [Art.170(1)]. Also, the Governor has the power to nominate one member of the Anglo-Indian community to Legislative Assembly of his State (Art. 333).Under Art.332, seats can be reserved for SCs/STs in the Legislative Assemblies.

The Assembly enjoys a term of five years but can be dissolved earlier by the Governor on the request of the Chief Minister. Likewise, its term can be extended for any period not exceeding one year at a time by the Parliament during national emergency. The term cannot be extended beyond a period of six months after the proclamation of emergency has ended (Art. 172).

Qualifications for M.L.A. (Art. 173)

A person can become a member of the Legislative Assembly only if he:

– is a citizen of India (and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule);

– is more than 25 years of age;

– possesses such other qualifications as may be prescribed by or under the law enacted by Parliament.

Legislative Council

It is the ‘upper House’ of the State Legislature and contains various categories of members. It has members elected by the Legislative Assembly(one-third), members elected by local bodies (one-third), members elected by teachers (one-twelfth), members elected by university graduates (one-twelfth),members nominated by the Governor from amongst those having special knowledge or practical experience in matters such as literature, science, art, cooperative movement, and, social service (one-sixth) [Art. 171].

The maximum strength of the Legislative Council can be one-third the total membership of the Legislative Assembly of that State, but in no case less than 40. The Legislative Council is a permanent body and cannot be dissolved. It enjoys a term of six years with one-third of its members retiring every two year. The Council elects a Chairman and a Vice-chairman from amongst its members.

To be eligible for membership of the Legislative Council, a person (Art. 173):

– must be a citizen of India;

– must be more than 30 years of age;

– must possess such other qualifications as may be prescribed by Parliament from time to time.

Disqualification for Membership of State Legislature (Art. 191)

Art. 191(1) lays down that a person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State-

(a) if he holds any office of profit under the Government of India or the Government of any State;

(b) if he is of unsound mind and stands so declared by a competent court;

(c) if he is an un-discharged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;

(e) if he is so disqualified by or under any law made by Parliament.

Explanation- For the purposes of this clause, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State.

Art. 191(2) lays down that a person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule (i.e. on the ground of defection).

If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of Art. 191, the question shall be referred for the decision of the Governor and his decision shall be final. Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion (Art. 192). If any question arises as to whether a member of a House has become subject to any of the disqualifications under the Tenth Schedule, the question shall he referred to the Chairman or the Speaker of the House, whose decision shall be final.

It may be noted that Art. 192 is applicable only to disqualifications to which a member becomes subject after he is elected as such. As regards the disqualifications which arose long before his election, neither the Governor nor the Election Commission has jurisdiction under Art. 192. Such a matter can only be raised in an election petition before the Court.

Union And State Relations:

Legislative/Administrative/Financial Powers

Lecture Note- 5 (Continued)

Legislative Powers

The main characteristic of a federal Constitution is the distribution of powers between the Centre and the States. The Indian Constitution provides for a new kind of federalism to meet India’s peculiar needs. In the matter of distribution of powers, the Framers followed the pattern of the Government of India Act, 1935. Thus, predominance has been given to the Union Parliament over the State Legislatures or Assemblies regarding the distribution of legislative powers.

Scheme of distribution of powers

The legislative powers are subject to the scheme of distribution of powers between the Union and State Legislatures (as provided in three lists under the Constitution), fundamental rights (i.e. legislative powers cannot contravene the fundamental rights) and other provisions of the Constitution (Arts. 245-254).

VIIth schedule – three lists

There are three Lists which provide for distribution of legislative powers (under 7thSchedule to the Constitution):-

1. (1) Union List (List I) – It contains 97 items and comprises of the subjects which are of national importance and admit of uniform laws for the whole of the country. Only the Union Parliament can legislate with respect to these matters e.g. Defence, Foreign Affairs, Banking, Currency, Union Taxes, etc.
2. State List (List II) – It contains 66 items and comprises of subjects of local or State interest and thus lie within the legislative competence of the State Legislatures, viz. Public Order and Police, Health, Agriculture, Forests, etc.
3. Concurrent List (List III) – It contains 47 items, with respect to which, both Union Parliament and the State Legislature have concurrent power of legislation. The Concurrent List (not found in any federal Constitution) was to serve as a device to avoid excessive rigidity to a two-fold distribution. It is a ‘twilight zone’, as for not so important matters, the States can take initiative, while for the important matters, the Parliament can do so. Besides, the States can make supplementary laws in order to amplify the laws made by Union Parliament. The subjects include general laws and social welfare – civil and criminal procedure, marriage, contract, planning education, etc.

However, in spite of the distribution of legislative powers under the three Lists, the predominance has been given to the Union Parliament over the State Legislatures

Twofold distribution

The Constitution makes a two-fold distribution of legislative powers:-

(i) With respect to territory.

(ii) With respect to subject matter of legislation. (i.e. three Lists).

[1] TERRITORIAL LEGISLATIVE JURISDICTION

[Art. 245]

Article 245 defines the ambit or territorial limits of legislative powers. “Cl.(1): Subject to the Constitutional provisions, Parliament may make laws for whole or any part of territory of India, and a State Legislature for the territory of that State. Cl. (2): No law made by the Parliament would be invalid on the ground that it would have extra-territorial operation i.e. takes effect outside the territory of India.”

Theory of Territorial Nexus or Doctrine of Territorial Nexus

The doctrine of territorial nexus is deeply rooted in laws of India even before the commencement of Constitution of India in 1950. The Government of India Act, I935 (for the purpose of territorial jurisdiction), first recognized that the laws of Union and States are enforceable in the territory of India and of State respectively although this simple generalization is subject to the exception of doctrine of territorial nexus. In the post-Constitution era, Art.245has made doctrine of territorial nexus a part of scheme of distribution of legislative powers under the Constitution.

Art. 245(1) provides that a State legislature may make laws for the territory of that State. The State legislature cannot make extra territorial laws, except when there is sufficient connection or nexus between the State and the object i.e. subject matter of legislation (object may not be physically located within the territorial limits of State)

Case Laws

(A.H. Wadia v CITAIR 1947 FC 18).

Wallace Bros. v CIT Bombay (AIR 1948 PC 118),

In State of Bombay v R.M.D.C. (AIR 1957 SC 699), the Bombay State levied a tax on lotteries and prize competitions in the State. The tax was extended to a newspaper printed and published in Bangalore, but had wide circulation in Bombay. The respondent conducted the prize competition through this paper… for which entries were received from Bombay through agents and depots established in the State to collect entry forms and fees.

Thus, all activities which the competitor is to undertake took place mostly in Bombay (viz. the standing invitations, filling up of the forms and the payment of money). The Court held that a sufficient territorial nexus exist for the State of Bombay to tax the newspapers. If there is a “sufficient nexus” between the person sought to be charged and the State seeking to tax him, the taxing statute would be upheld. But, the connection must be real and not illusory (i.e. it should be on the basis of a valid law) and the liability sought to be imposed must be pertinent to that connection (i.e. law selects some fact which provide some connection with the State). Whether there is a sufficient connection, is a question of fact and will be determined by the courts in each case.

TATA IRON AND STEEL CO. v STATE OF BIHAR (AIR 1958 SC 452)

STATE OF BIHAR v SMT. CHARUSILA DAS (AIR 1959 SC 1010)

Extra-territorial Operation of Parliamentary Law

According to Prof. Wheare, “Extra-territorial legislation” simply means legislation which attaches significance for courts within the jurisdiction to facts and events occurring outside the jurisdiction.

Art. 245(2) provides that no law made by the Parliament would be invalid on the ground that it would have extra-territorial operation i.e. takes effect outside the territory of India. In other words, Parliamentary law will cover persons and their property anywhere in world, and the legislation may offend the rules of international law or may not be recognized by the foreign courts. Thus, if a citizen of India goes to France and marries a French girl while his first wife is alive, he can be prosecuted in India for bigamy.

Case Laws

A.H. Wadia v I.T. Commr., Bombay (AIR 1949 FC 18),

Electronics Corpn., India v C.I.T. If (AIR 1989 SC 1707),

 

DISTRIBUTION OF LEGISLATIVE SUBJECTS

[Art. 246]

Art. 246 provides:-

(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in the List I (Union List).

(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the State legislature also, have power to make laws with respect to any of the matters enumerated in the List III (Concurrent List).

(3) Subject to clauses (1) and (2), the State legislature has exclusive power to make laws for such State with respect to any of the matters enumerated in List II (State List).

(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State, notwithstanding that such matter is a matter enumerated in the State List.

Thus, Art.246 provides that the Parliament has exclusive power to make laws with respect to Union List; the State legislature for the State List; and, the Parliament and State legislature, both, for the Concurrent List. However, as it will be seen later, there is predominance of the Union Parliament in matters of legislative law making.

Autonomy to Centre and States (Legislative Powers)

In Javed v State of Haryana [JT 2003 (6) SC 283], the apex court upheld the constitutional validity of certain provisions of Haryana Panchayati Raj Act, 1994, which disqualified a person for holding office of Sarpanch or a Panch of a Gram Panchayat, etc. if he had more than two living children, though a similar provision was not found to have been enacted by the Parliament or other State Legislatures.

In State of M.P. v G.C. Mandawar (AIR 1954 SC 493), it was held that two laws enacted by two different governments and by two different Legislatures could be read neither in conjunction nor by comparison for the purpose of finding out if they were discriminatory.

Other case laws

PROF. YASHPAL v STATE OF CHHATTISGARH [AIR 2006 SC 2026]

GST

Goods and Service Tax GST is an Indirect Tax which has replaced many Indirect Taxes in India. The Goods and Service Tax Act was passed in the Parliament on 29th March 2017. The Act came into effect on 1st July 2017; Goods & Services Tax Law in India is a comprehensive, multi-stage, destination-based tax that is levied on every value addition.

GST is one indirect tax for the entire country. There are several articles in the constitution of India which define the financial relations between Union and States. Since GST bills involve a huge interest of the state governments, such a historical tax reform cannot take place without making suitable changes into the constitution. For this purpose 101st amendment of the constitution was passed. This act received the assent of the President of India on 8th September, 2016. The important changes made in constitution (new articles / amended articles) via this law are as follows:

Article 246 (A)

Article 269A

Article 279-A:

Changes in the 7th Schedule Union List: State List

Other Important amendments in existing articles

 

Article 246A This is a new article inserted in the constitution. It says that

(1) Notwithstanding anything contained in articles 246 and 254, Parliament, and, subject to clause (2), the Legislature of every State, have power to make laws with respect to goods and services tax imposed by the Union such State.

(2) Parliament has exclusive power to make laws with respect to goods and services tax where the supply of goods, or of services, or both takes place in the course of inter-State trade or commerce.

Article 269A Levy and collection of goods and services tax in course of inter-State trade or commerce.: (1) Goods and services tax on supplies in the course of inter-State trade or commerce shall be levied and collected by the Government of India and such tax shall be apportioned between the Union and the States in the manner as may be provided by Parliament by law on the recommendations of the Goods and Services Tax Council.

Explanation.- For the purposes of this clause, supply of goods, or of services, or both in the course of import into the territory of India shall be deemed to be supply of goods, or of services, or both in the course of inter-State trade or commerce.

(2) The amount apportioned to a State under clause (1) shall not form part of the Consolidated Fund of India.

(3) Where an amount collected as tax levied under clause (1) has been used for payment of the tax levied by a State under article 246A, such amount shall not form part of the Consolidated Fund of India.

(4) Where an amount collected as tax levied by a State under article 246A has been used for payment of the tax levied under clause (1), such amount shall not form part of the Consolidated Fund of the State.

(5) Parliament may, by law, formulate the principles for determining the place of supply, and when a supply of goods, or of services, or both takes place in the course of inter-State trade or commerce.

Article 279A- of the amended Constitution the President shall, within sixty days from the date of commencement of the Constitution (One Hundred and First Amendment) Act, 2016, by order, constitute a Council to be called the Goods and Services Tax Council.

1. The GST Council which will be a joint forum of the Centre and the States shall consist of the following members: –

a. the Union Finance Minister………………………………………………………. Chairperson;

b. the Union Minister of State in charge of Revenue or Finance…………….. Member;

c. the Minister in charge of Finance or Taxation or any other Minister nominated by each State Government ……………………………….. Members.

2. The Members of the Goods and Services Tax Council referred to in sub-clause (c) of clause (2) shall, as soon as may be, choose one amongst themselves to be the Vice-Chairperson of the Council for such period as they may decide.
3. The Goods and Services Tax Council shall make recommendations to the Union and the States on-

a. the taxes, cesses and surcharges levied by the Union, the States and the local bodies which may be subsumed in the goods and services tax;

b. the goods and services that may be subjected to, or exempted from the goods and services tax;

c. model Goods and Services Tax Laws, principles of levy, apportionment of Goods and Services Tax levied on supplies in the course of inter-State trade or commerce under article 269A and the principles that govern the place of supply;

d. the threshold limit of turnover below which goods and services may be exempted from goods and services tax;

e. the rates including floor rates with bands of goods and services tax;

f. any special rate or rates for a specified period, to raise additional resources during any natural calamity or disaster;

g. special provision with respect to the States of Arunachal Pradesh, Assam, Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura, Himachal Pradesh and Uttarakhand; and

h. any other matter relating to the goods and services tax, as the Council may decide.

4. The Goods and Services Tax Council shall recommend the date on which the goods and services tax be levied on petroleum crude, high speed diesel, motor spirit (commonly known as petrol), natural gas and aviation turbine fuel.
5. While discharging the functions conferred by this article, the Goods and Services Tax Council shall be guided by the need for a harmonized structure of goods and services tax and for the development of a harmonized national market for goods and services.
6. One-half of the total number of Members of the Goods and Services Tax Council shall constitute the quorum at its meetings.
7. The Goods and Services Tax Council shall determine the procedure in the performance of its functions.
8. Every decision of the Goods and Services Tax Council shall be taken at a meeting, by a majority of not less than three-fourths of the weighted votes of the members present and voting, in accordance with the following principles, namely: —

a. the vote of the Central Government shall have a weightage of one third of the total votes cast, and

b. the votes of all the State Governments taken together shall have a weightage of two-thirds of the total votes cast, in that meeting.

9. No act or proceedings of the Goods and Services Tax Council shall be invalid merely by reason of—

a. any vacancy in, or any defect in, the constitution of the Council; or

b. any defect in the appointment of a person as a Member of the Council; or

c. any procedural irregularity of the Council not affecting the merits of the case.

10. The Goods and Services Tax Council shall establish a mechanism to adjudicate any dispute:-

a. between the Government of India and one or more States; or

b. between the Government of India and any State or States on one side and one or more other States on the other side; or

c. between two or more States, arising out of the recommendations of the Council or implementation thereof.

[A] Principles of Interpretation of Lists

The distribution of subject-matters cannot be claimed to be scientifically perfect and there happens to be overlapping between the subjects enumerated in the three lists. Whether a particular subject falls in the sphere of one or other government (i.e. Union or State), the Supreme Court has evolved following principles to determine respective powers of Union and State Legislatures.

It is an absolute power to enact laws (even if it is contrary to any understanding or guarantee given by the State), subject only to its legislative competence and other constitutional limitations. The Parliamentary power of legislation to acquire property,

for example, is unrestricted, as held in State of W.B. v Union of India (AIR 1963 SC 1241); R. v Burah (1878) 3 AC 889.No limitation can be read on the ground of legislative practice or legitimate expectations (Sri Srinivasa Theatre v Govt. of T.N. AIR 1992 SC 999).

The principle to interpret the entries (in Lists) so as to make the legislative power of Parliament and State legislatures ‘plenary’ is that the entries should not be read in narrow or restricted sense. Each general word in an entry should be construed to include all ancillary or subsidiary matters which can fairly and reasonably be said to comprehend in it (State of W.B. v Union of India).

case law

J.K. JUTE MILLS v STATE OF U.P. (AIR 1961 SC 1534)

(ii) Liberal and Harmonious Construction

The position in the Indian Constitution is different from other federal Constitutions in respect of distribution of legislative powers. There is no clear-cut division of powers between the Union and States. Thus, in case of conflict, the judiciary has to make reconciliation attempts between the conflicting entries (In Re C.P. & Berar Sales of Motor Spirits & Lubricants Taxation Act, 1938).

case law

1. IN RE C.P. & BERAR SALES OF MOTOR SPIRITS & LUBRICANTS TAXATION ACT, 1938 (AIR 1939 F.C. 1)

2. GUJARAT UNIVERSITY v KRISHNA RANGANATHMUDHOLKAR (AIR 1963 SC 703)

3. ITC LTD. v AGRICULTURAL PRODUCEMARKET COMMITTEE (AIR 2002 SC 852)

(iii) Ancillary or Incidental Powers

It is well-settled that the power to legislate on a topic of legislation carries with it the power to legislate on an ancillary matter which can be said to be reasonably included in the power given. Thus, the power to legislate w.r.t. land includes the power w.r.t. mortgages of land as a subsidiary subject. The power to make laws on a subject includes the power to pass a valid law retrospectively….. The power to levy tax would include the power to enact provisions to check tax evasion/tax remission.

The power to make laws for labour welfare will justify the State to takeover and utilize for the benefit of workers as a class, the unpaid accumulation belonging to the employees, but which were not claimed by them.

In R.D. Joshi v Ajit Mills (AIR 1977 SC 2279), the Court held that the punitive measures for enforcing social legislation are part of the ancillary powers. The Entries in lists must be given wide meaning implying all ancillary and incidental powers. The question was whether it was permissible for State legislature to enact that sums collected by dealers by way of sales tax which was prohibited by State law, would be forfeited to the State punitively under Entry 54 read with Entry 64 of List II. The Court held that it was a punitive measure to enforce the Act; penal sanction for enforcing fiscal legislation for protecting public interest is part of ancillary powers.

case law

UNITED PROVINCES v ATIQA BEGUM (AIR 1941 F.C. 16)

(iii) Pith and Substance Rule

This doctrine is applied when the legislative competence of a legislature with regard to a particular enactment is challenged ….when a law dealing with a subject in one list touching on a subject in another list. In such a case, what has to be ascertained is the pith and substance of enactment i.e. true object of legislation (and its scope and effects).

In Kerala SEB v Indian Aluminium Co. Ltd. (1976) 1 SCC 466, it was held: “For deciding under which entry a particular legislation falls the theory of ‘pith and substance’ has been evolved by the courts. If in pith and substance a legislation falls within one list or the other but some portion of the subject-matter of that legislation incidentally trenches upon and might come to fall under another list, the Act as a whole would be valid notwithstanding such incidental trenching.”

case law

1. PRAFULLA KUMAR v BANK OF COMMERCE, KHULNA (AIR 1947 P.C. 60)

2. STATE OF RAJASTHAN v G. CHAWLA (AIR 1959 SC 544)

3. STATE OF KARNATAKA V DRIVE-IN ENTERPRISES (AIR 2001 SC 1328)

(v) Doctrine of Colourable Legislation

The Constitution distributes the legislative powers between the Parliament and the State Legislature, and, they are required to act within their respective spheres. Often the question arises as to whether or not the legislature enacting the law has transgressed the limits of its constitutional powers. Such transgression may be patent, manifest or direct, but it may also be disguised, covert and indirect. The doctrine of colourable legislation is applied when the transgression is disguised, covert and indirect. The “colourable legislation” simply means a legislation which, while transgressing constitutional limitation, is made to appear as if it were quite constitutional.

case law

K.C. GAJAPATI NARAYAN DEO V STATE OF ORISSA (AIR 1953 SC 375)

[B] Residuary Powers (Art. 248)

(To be dealt with)

[C] Inconsistency or Repugnancy between Union and State Laws (Art. 254)

Clause (1): “If any provision of a law made by State legislature is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to matters enumerated in Concurrent List, then subject to clause (2) provisions, the Parliamentary law, whether passed before or after State legislatures’ law, or the existing law, shall prevail and State law shall, to the extent of repugnancy, he void.”

Art. 254(1) enumerates the rule that in the event of a conflict between a Union and a State law, the former prevails. The Union law may have been enacted prior to the State law or subsequent to the State law. The principle behind is that when there is legislation covering the same ground both by the Centre and by the State, both of them competent to enact the same, the Central law should prevail over the State law.

Case Law on Repugnancy

1. Zaverbhai v State of Bombay (AIR 1954 SC 752)

2. DEEP CHAND v STATE OF U.P. (AIR 1959 SC 648)

3. M. KARUNANIDHI v UNION OF INDIA (AIR 1979 SC 898)

4. HOECHST PHARMACEUTICALS LTD. v STATE OF BIHAR (AIR 1983 SC 1019)

5. P.K. TRIPATHI, “ARTICLE 254-THE TEXT IS EXPLICIT” (AIR 1986, J. 17)

6. KAISER-I-HIND (P) LTD. v NATIONALTEXTILE CORPN., (AIR 2002 SC 3404)

Concluding Remarks

The rationale for such distribution of legislative powers between Union and States is that a strong Centre is necessary to coordinate the activities of various States in the interest of uniformity and to check fissiparous or anti-national tendencies. Besides, the Central control was considered necessary for the purpose of achieving, rapid economic and industrial progress.

According to T.K. Tope, these provisions are merits rather than demerits of Indian Constitution. They enable the Centre to legislate in exceptional circumstances on the State subjects without amending the Constitution and thus introducing a certain amount of flexibility in the scheme of distribution of powers. Moreover, they are invoked only for a limited period.

The Sarkaria Commission has also rejected the demand for curtailing the powers of the Centre saying that a strong Centre is necessary to preserve the unity and integrity of the country. The Commission is also of the view that the supremacy of Parliament envisaged in Arts. 246 and 254 is essential and needs no change. The only suggestion given in this respect is that residual matters other than taxation should be in the Concurrent List. The various suggestions asking for transfer of subjects to the State or Concurrent List have been rejected. The Commission has, however, suggested that there should be consultation by the Centre on all concurrent subjects before passing any law.

 

ADMINISTRATIVE RELATIONS BETWEEN UNION AND STATES

[ARTS. 256-263]

 

Articles 256 to 263 seek to regulate administrative relations between the Union and States. It is common in federal systems that the administrative relations between the Union and the States are fraught with difficulties. The Constitution of India seeks to achieve a smooth working relationship between the two levels. Both the Union and States can delegate their functions to each other, with mutual consent.

Directions by Centre to States- Art. 256 provides that the executive power of State shall be so exercised as to ensure compliance with Parliamentary laws, and the executive power of Union shall also extend to the giving of such directions to a State as it may deem essential for the purpose.

Such power given to the Centre is necessary for the proper execution of Parliament laws e.g. untouchability law (uniform application of laws in all the States).

Art. 257- States must exercise their executive power in such a way so as not to impede or prejudice the exercise of executive power of Union in the State. For this, Union can give directions to a State, also in two specific matters:- (i) construction and maintenance of means of communication of national or military importance, (ii) measures to be taken for the protection of railways within the States. Regarding expenditure in this connection, the State Government and the Central Government may agree mutually or may refer the matter to the Chief Justice of India for appointment of an arbitrator. Any extra expenditure incurred by the State for the purpose of fulfilling Central directives is to be reimbursed by the Centre to the State. The Constitution prescribes a coercive sanction for the enforcement of its directions through Art. 365.

Delegation of Union’s functions to States (Art. 258)- The President may with the consent of a State government entrust to that Government functions relating to any matter falling within the executive power of the Union. Under Cl. (2), Parliament can also use State machinery for the enforcement of Union laws and for this purpose may confer power or impose duties upon the State or its officers. No consent of State is necessary under Cl. (2). This constitutes a great encroachment on the autonomy of States. Art. 258-A – States (via Governor) may entrust functions to the Union Government with the latter’s consent.

Thus, where it is not inconvenient for either government to directly carry out its administrative functions, it may get those functions executed through the other government.

Art. 260- The Union Government will have exclusive jurisdiction in relation to territories outside India.

Art. 261 – The provision in Article 261, directing that full faith and credit shall be given to public acts, records and judicial proceedings of the Union and the States in all parts of the Indian territory, adds a lot to the smooth working of Union-State relations.

Art. 262 – Parliamentary control over Inter-State rivers and provisions for adjudication of any Inter-State water disputes were designed to take away the possibilities of friction between Union and States and between States themselves.

Art. 263 (Inter-State Council) – It empowers the President to establish an Inter-State Council in public interest, to enquire into and advise upon Inter-State disputes and matters of common interest between States or between the Union and the States and make recommendations for better co-ordination of policy and action.

It is a constitutional body. On the basis of Sarkaria Commissions recommendations, a permanent Council was created in April 1990, consisting of six Union Cabinet Ministers and Chief Minister of each State. The Sarkaria Commission has made out a strong case for Inter-State Councils under Art. 263.

 

FINANCIAL RELATIONS BETWEEN UNION AND STATES

Indian Constitution provides for independent sources of income for the Centre and States by completely separating the Central-State taxing powers. ‘The specific powers of taxation of the Union extend to taxes on income, corporate taxes, customs duty, excise duties on most items, estate and wealth taxes and fees in respect of matters in the “Union List. The main taxation powers of the State are over land revenue, stamp duties, agricultural income tax, passenger tax, entry taxes and most importantly sales taxes and duties on alcohol and other intoxicants mentioned in State List. The Concurrent List includes no taxes.

However, since it was not envisaged that the States would be financially self-reliant, the Constitution provides for the sharing of some revenue items between the Union and the States. The main aspects of these are:

(a) Duties levied by the Union but collected and utilized by the State (Stamp duties and duties of excise on medicinal and toilet preparations) (Art. 268).

(b) Duties and taxes levied and collected by the Union but assigned to the States (Railways passenger fares tax or grants in lieu of it).

The new Art.268A [added by the Constitution 88th Amendment Act, 2003] empowers the Union of India to levy ‘Service taxes.’ Such taxes shall be collected and appropriated by the Union and States in accordance with such principles as may be formulated by Parliament by law.

(c) Income tax and Union excise duties are levied and collected by the Union but shared with the States according to the recommendations of the Finance Commission. ‘Surcharges’ on duties and taxes are, however, not shareable nor is the ‘income tax paid by corporate enterprises.’

The Tenth Finance Commission has recommended that out of the total income obtained from certain Central taxes and duties, 29 per cent shall be given to the States. The Constitution (80thAmendment) Act, 2000, which has amended Arts.269 and 270, has been enacted on the recommendation of the Tenth Finance Commission.

The new clause (1) of Art.269 provides that ‘taxes on sale or purchase of goods and taxes on the consignment of goods’ shall be levied and collected by the Government of India but shall be assigned and shall be deemed to have been assigned to States on or after the is day of April, 1996 in the manner as may be prescribed by Parliament by law.

The new Art.270 provides that “all taxes and duties referred to in the Union List, except the duties and taxes referred to in Art. 271 and any cess levied for specific purposes under any law made by Parliament, shall be levied and collected by the Government of India and shall be distributed between the Union and States in the manner provided in clause (2).”

Art. 270(2): ‘“Such percentage, as may be prescribed, of the net proceeds in any financial year of any such tax or duty, shall form part of the consolidated Fund of India, but shall be assigned to the States within which that tax or duty is leviable in that year, and shall be distributed among those States in such manner and from such time as may be prescribed.”

The word “prescribed” in Art. 270 means Finance Commission which will give its recommendation, to the Government about the actual amount of net proceeds from all taxes and duties leviable by the Central Government and shall be distributed among the States. This amendment will enhance the income of the States.

(d) The Union can also give grants to the States for different purposes. These can be either on the recommendations of the Finance Commission or on a discretionary basis.

Grants-in-aid: The Constitution provides for three kinds of grants-in-aid to the States from the Union resources-

(i) Under Art. 273, grants-in-aid will be given to the States of Assam, Bihar, Odhisa 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 the Finance Commission.

(ii) Art. 275 empowers the 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 undertake 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.

(iii) Under Art. 282, both the Union and a State make grant for any ‘public purpose’ even if it relates to a subject matter over which it cannot make laws. The Central Government can under this Article make grants to hospitals or schools.

Finance Commission

The Constitution provides for the establishment of a Finance Commission by the President within two years of commencement of the Constitution and thereafter, at the end of every five years (Art. 280). Thus, it is a constitutional and not a statutory body. The First Finance Commission was constituted in1951 under the chairmanship of Mr. K.C. Neogy.

The Finance Commission consists of Chairman and four other members. According to the qualifications prescribed by the Parliament, the Chairman is selected from amongst persons who have had experience in public affairs, while the members are selected from amongst persons who are, or have been, or are qualified to be appointed Judges of the High Court; or have special knowledge of the finance and accounts of government; or have had wide experience in financial matters and in administration; or have special knowledge of economics.

The main functions of the Finance Commission are:

— to recommend to the President the basis for distribution of the net proceeds of taxes between the Centre and the States;

— to recommend the principles which should govern the grants-in-aid to be given to States out of the Consolidated Fund of India;

— to tender advice to the President on any other matter referred to the Commission in the interest of sound finance.

Art. 281 says that the President shall cause every recommendation of the Finance Commission to be laid before each House of Parliament together with an explanatory memorandum.

Critical Appraisal of Financial Relations

“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” (D.D; Basu). It is indeed a hard fact that if the legislative and administrative authority of the constituent units is to be maintained they must be autonomous financially. However, this principle of federalism has not been fully implemented in any of the existing federations of the world, including India.

The scheme of distribution of revenues indicates, like distribution of legislative and administrative powers, a clear tendency towards centralisation. The problem of Centre-State relations is more serious in the sphere of distribution of finances. The Centre’s resources are many and vast but the State resources are very meagre. The financial resources of the States are generally limited and relatively inelastic unlike those at the disposal of the Union. The State has to implement all the welfare schemes. Thus, States are dependent upon Centre for funds.

Further, the States can resort to market borrowings only with the Union’s consent. The Union controls the financial institutions and can also resort to deficit financing through its control over the money supply. On the other hand, the Union restricts, or even denies overdraft facilities (with the RBI) to the States.

In practice, the major transfer of resources from the Union to the States does not take place through statutory but discretionary channels, particularly projects approved by the Planning Commission. These transfers are tied to special projects and hence, the financial autonomy of the States is considerably curtailed.

It is to be noted that the Planning Commission (an executive body) has been created by the resolution of the Government of India. It is not a statutory body like the Finance Commission. But the Planning Commission distributes large parts of Central grants to the States than the Finance Commission. The Central grant recommended by the Planning Commission is a discretionary grant. In fact, out of the total grants made in a year, only 30 per cent is under the purview of the Finance Commission and 70 per cent is discretionary grant.

Planning Commission is a political body. It is therefore suggested that the Planning Commission should be made a statutory body and it should be made permanent. It should also be made more broad based body. It is hoped that this step would help in reducing the stresses and strains which at present exists between the Centre and the States.

 

PAHUJA LAW ACADEMY

PRELIMINARY QUESTIONS

 
1. The maximum strength of Rajya Sabha is:-

a) 238

b) 245

c) 250

d) 550

 
2. At present, the Lok Sabha has ____ members.

a) 552

b) 530

c) 545

d) 245

 
3. The 42nd Amendment of 1976:-

Froze the allocation of seats in the Lok Sabha to the states till the year 2000 at the 1971 level

b) Provided for the delimitation of constituencies on the basis of 2001 census and not 1991 census without altering the number of seats allotted to each state in the Lok Sabha

c) The voting age was reduced from 21 to 18

d) Reservation of Seats for SCs and STs

 
4. What is the minimum age to be a member of Lok Sabha?

a) 21 years

b) 25 years

c) 30 years

d) 28 years

 
5. The date of election of speaker of Lok Sabha is fixed by:-

a) Governor

b) Members of Lok Sabha

c) President

d) Vice President

 
6. Who amongst the following was the first speaker of the Central Legislative Assembly?

a) Sachidananda Sinha

b) Frederick Whyte

c) G.V. Mavalankar

d) Ananthasayanam Ayyangar

 
7. The Speaker of the last Lok Sabha vacates his office:-

a) Immediately before the first meeting of the newly elected Lok Sabha

b) Immediately after the first meeting of newly elected Lok Sabha

c) At the will of President

d) At the will of Vice-President

 
8. Who amongst the following is the ex-officio Chairman of the Rajya Sabha?

a) President

b) Vice-President

c) Any member of Rajya Sabha

d) Any member of Lok Sabha

 
9. In each House of Parliament, there is the ‘Leader of the Opposition’ who is the leader of the largest Opposition party having not less than _________ seats of the total strength of the House.

a) Three-fourth

b) One-tenth

c) Half

d) One-fourth

 
10. The Joint Sitting of Two Houses is governed by:-

a) Rules of Procedure of Rajya Sabha

b) Rules of Procedure of Lok Sabha

c) Rules of Procedure as may be decided between both houses

d) Rules of Procedure as may be laid down by President

 

PAHUJA LAW ACADEMY

Supreme Court

LECTURE – 6 C

Mains Questions

 

1. Who can be appointed as the judge of Supreme Court?

 

2. How can the judge of Supreme Court be removed?

 

3. Discuss the organization of High Court.

 

4. When and how can a retired judge of High Court act as a judge of that High Court?

 

5. Discuss the jurisdiction of District Courts.

 

PAHUJA LAW ACADEMY

Supreme Court

LECTURE – 6 C

 

Introduction

• The Indian Constitution has established an integrated judicial system with the Supreme Court at the top and the High Courts below it,
• The single system of courts was adopted from the Government of India Act of 1935 which enforces both Central laws as well as the state laws.
• The Supreme Court was inaugurated on January 28, 1950. It succeeded the Federal Court of India, established under the Government of India Act of 1935.
• Articles 124 to 147 in Part V of the Constitution deal with the Supreme Court.

Organisation

There are 31 judges at present which was increased from 26 in 2009.

• The judges of the Supreme Court are appointed by the president after consultation with such judges of the Supreme Court and high courts as he deems necessary.
• The other judges are appointed by president after consultation with the chief justice and such other judges of the Supreme Court and the high courts as he deems necessary.
• The consultation with the chief justice is obligatory in the case of appointment of a judge other than Chief justice.
• He should consult a collegium of four seniormost judges of the Supreme Court and even if two judges give an adverse opinion, he should not send the recommendation to the government.
• 99th Constitutional Amendment Act of 2014 and the National judicial Appointments Commission Act of 2014 have replaced the collegium system of appointing judges to the Supreme Court. National judicial Appointments Commission (NJAC). 2015, the Supreme Court has declared both the 99th Constitutional Amendment as well as the NIAC Act as unconstitutional and void. Earlier collegium system became operative again.
• The practice to appoint the senior must judge of the Supreme Court as the chief justice of India has been prevalent, however the convention was violated in 973 and in 1977.
• This discretion of the government was curtailed by the Supreme Court in the Second Judges Case (1993), in which it was ruled that the seniormost judge of the Supreme Court should alone be appointed to the office of the chief justice of India.

Qualifications

• A person who can be appointed as a judge of the Supreme Court should be a citizen of India. (Article 124 (3))
• Have been a judge of a High Court for five years; or have been an advocate of a High Court (or High Courts in succession) for ten years; or (Article 124 B)
• Be a distinguished jurist in the opinion of the president. [Art.124(3)]
• Constitution has not prescribed a minimum age for appointment as a judge of the Supreme Court.
• A person appointed as a judge of the Supreme Court, before entering upon his Office, has to make and subscribe an oath or affirmation before the President, or some person appointed by him for the same.[Art.124(6)].

Tenure

• He holds office until the age of 65 years.
• He can resign his office by writing to the president. (Article 124 (2))
• He can be removed from his office by the President on the recommendation of the Parliament.

Removal (Article 124 (4))

• The President issues the removal order only after an address by Parliament has been presented to him in the same session for such removal.
• The address has to be supported by a special majority of each House of Parliament.
• The grounds of removal are two proved misbehaviour or incapacity. The Judges Enquiry Act, 1968 regulates the procedure relating to the removal of a judge of the Supreme Court by the process of impeachment:
• A removal motion signed by 100 members (Lok Sabha) or 50 members (Rajya Sabha) is to be given to the Speaker/ Chairman.
• The Speaker/ Chairman may admit the motion or refuse.
• If admitted, then the Speaker/ Chairman constitutes a three-member committee to investigate into the charges.
• The committee consists of (a) the chief justice or a judge of the Supreme Court, (b) a chief justice of a high court, and (c) a distinguished jurist.
• If the committee ratifies the judge to be guilty of misbehaviour or suffering from an incapacity, the House can take up the consideration of the motion. After the motion is passed by each House by special majority, an address is presented to the president for removal of the judge.
• Finally, the president passes an order removing the judge.
• The salaries, allowances, privileges, leave and pension of the judges of the Supreme Court are determined from time to time by the Parliament. (Article 125)

Acting Chief justice (Article 126)

• The President can appoint a judge of the Supreme Court as an acting Chief Justice of India when:
• the office of Chief Justice of India is vacant; or
• the Chief Justice of India is temporarily absent; or
• the Chief Justice of India is unable to perform the duties of his office.

Ad hoc Judge (Article 127)

• Ad hoc Judge (Article 127)
• In case of lack of quorum of the permanent judges to hold or continue any session of the Supreme Court, the Chief Justice can appoint a judge of a High Court as an ad hoc judge of the Supreme Court for a temporary period. He can do so only after consultation with the chief justice of the High Court concerned and with the previous consent of the president.

Retired judges (Article 128)

• In case of lack of quorum of the permanent judges to hold or continue any session of the Supreme Court, the Chief Justice can appoint a judge of a High Court as an ad hoc judge of the Supreme Court for a temporary period. He can do so only after consultation with the chief justice of the High Court concerned and with the previous consent of the president.

Retired judges (Article 128)

• The chief justice can request a retired judge of the Supreme Court or a retired judge of a high court (who is duly qualified for appointment as a judge of the Supreme Court) to act as a judge of the Supreme Court for a temporary period.

Procedure

• The Supreme Court with the approval of the president, can make rules for regulating generally the practice and procedure of the Court.
• The cases or references made by the President under Article 143 are decided by a Bench consisting of at least five judges. All other cases are usually decided by a bench consisting of not less than three judges.

Independence

The Supreme Court has been assigned crucial role in the Indian democratic political system.

• It is a federal court,
• the highest court of appeal,
• the guarantor of the fundamental rights of the citizens and guardian of the Constitution.

Following provisions have been made to safeguard the independence of the Supreme Court

• The judges of the Supreme Court are appointed by the President in consultation with the members of the judiciary itself.
• They do not hold their office during the pleasure of the President, though they are appointed by him.
• The salaries, allowances and pensions of the judges and the staff as well as all the administrative expenses of the Supreme Court are charged on the Consolidated Fund of India. Hence non-votable by the Parliament.
• Conduct of Judges cannot be discussed in Parliament or in a State Legislature except when an impeachment motion is under consideration of the Parliament.
• The retired judges of the Supreme Court are prohibited from pleading or acting in any Court or before any authority within the territory of India. This ensures that they do not favour anyone in the hope of future favour.
• The Supreme Court can punish any person for its contempt. This power is vested in the Supreme Court to maintain its authority, dignity and honour.
• The Parliament is not authorised to curtail the jurisdiction and powers of the Supreme Court.
 

Powers of the Supreme Court

• The final interpreter and guardian of the Constitution
• Has advisory and supervisory powers.

Original Jurisdiction (Article 131)

>The Supreme Court decides the disputes between

• the Centre and one or more states; or
• the Centre and any state or states on one side and one or more states on the other; or
• between two or more states.

Here the Supreme Court has exclusive original jurisdiction and no other court can decide such disputes and original means.

Writ Jurisdiction (Article 32)

• Since the Supreme Court is the guarantor and defender of the fundamental rights of the citizens it is empowered to issue writs including.
• habeas corpus, mandamus, prohibition, qua-warrento and certiorari for the enforcement of the fundamental rights of an aggrieved citizen.
• An aggrieved citizen can directly go to the Supreme Court, not necessarily by way of appeal.
• However, the writ jurisdiction of the Supreme Court is not exclusive since high courts are also empowered to issue writs for the enforcement of the Fundamental Rights.
• The Supreme Court can issue writs only for the enforcement of the Fundamental Rights and not for other purposes. The high court can issue writs not only for the enforcement of the fundamental rights but also for other purposes.

Appellate Jurisdiction (Article 132 read with 136)

• The Supreme Court is primarily a court of appeal and hears appeals against the judgments of the high courts on constitutional matters, civil matters, criminal matters and appeals by special leave.

Advisory Jurisdiction

Article 143 authorises the president to seek the opinion of the Supreme Court on

• a question of law or fact of public importance which has arisen or which is likely to arise.
• any dispute arising out of any pre-constitution treaty, agreement, covenant, engagement, sanad or other similar instruments.

Judicial Review (Article 137)

• The power of the Supreme Court to examine the constitutionality of legislative enactments and executive orders of both the Central and state governments.
• If they are found to be violative of the Constitution they can be declared as illegal, unconstitutional and invalid.

Consequently, they cannot be enforced by the Government. Judicial review is needed for the following reasons:

To uphold the principle of the supremacy of the Constitution.

To maintain federal equilibrium.

To protect the fundamental rights of the citizens.

Other Powers

• SC decides the disputes regarding the election of the president and the vice-president. Here, it has the original, exclusive and final authority. (Article 71)
• It enquires into the conduct and behaviour of the chairman and members of the Union Public Service Commission on a reference made by the president. (Article 317)
• Has the power to review its own judgment or order and is not bound by its previous decision. So it can depart from it in the interest of justice or community welfare making it a self-correcting agency. (Article 137)
• It is authorised to withdraw the cases pending before the high courts and dispose them by itself. It can also transfer a case or appeal pending before one high court to another high court. (Article 139 A (2))
• It has power of judicial superintendence and control over all the courts and tribunals functioning in the entire territory of the country. (Article 142)

 

High Court

In the Indian single integrated judicial system, the high court operates below the Supreme Court but above the subordinate courts. The high court occupies the top position in the judicial administration of a state.

The Constitution of India provides for a high court for each state, but the Seventh Amendment Act of 1956 authorised the Parliament to establish a common high court for two or more states or for two or more states and a union territory. The territorial jurisdiction of a high court is co- terminus with the territory of a state.

At present, there are 24 high courts in the country. Out of them, three are common high courts. Delhi is the only union territory that has a high court of its own (since 1966). The Parliament can extend the jurisdiction of a high court to any union territory or exclude the jurisdiction of a high court from any union territory.

Organisation of High Court (Article 216)

Every high court (whether exclusive or common) consists of a chief justice and such other judges as the president may from time to time deem necessary to appoint. Thus, the Constitution does not specify the strength of a high court and leaves it to the discretion of the president.

Appointment (Article 217)

The judges of a high court are appointed by the President. The chief justice is appointed by the President after consultation with the chief justice of India and the governor of the state concerned. For appointment of other judges, the chief justice of the concerned high court is also consulted. In case of a common high court for two or more states, the governors of all the states concerned are consulted by the president. In the Third Judges case (1998), the Supreme Court opined that in case of the appointment of high court judges, the chief justice of India should consult a collegium of two senior-most judges of the Supreme Court. Thus, the sole opinion of the chief justice of India alone does not constitute the ’consultation’ process.

Qualifications (Article 217 (2)

A person to be appointed as a judge of a high court, should have the following qualifications:

• He should be a citizen of India.
• He should have held a judicial office in the territory of India for ten years; or

He should have been an advocate of a high court (or high courts in succession) for ten years.

Therefore, it is clear that the Constitution has not prescribed a minimum age for appointment as a judge of a high court.

• He holds office until he attains the age of 62 years. Any questions regarding his age is to be decided by the president after consultation with the chief justice of India and the decision of the president is final.
• He can resign his office by writing to the president.
• He can be removed from his office by the President on the recommendation of the Parliament.
• He vacates his office when he is appointed as a judge of the Supreme Court or when he is transferred to another high court.

Removal

Removal process is same as that of Supreme Court judges.

Acting Chief Justice (Article 223)

The President can appoint a judge of a high court as an acting chief justice of the high court when:

• the office of chief justice of the high court is vacant; or
• the chief justice of the high court is temporarily absent; or
• the chief justice of the high court is unable to perform the duties of his office.

Additional and Acting judges (Article 224)

The President can appoint duly qualified persons as additional judges of a high court for a temporary period not exceeding two years when:

• there is a temporary increase in the business of the high court; or
• there are arrears of work in the high court.

An acting judge holds office until the permanent judge resumes his office. However, both the additional or acting judge cannot hold office after attaining the age of 62 years.

Retired Judges (Article 224 A)

At any time, the chief justice of a high court of a state can request a retired judge of that high court or any other high court to act as a judge of the high court of that state for a temporary period. He can do so only with the previous consent of the President and also of the person to be so appointed. Such a judge is entitled to such allowances as the President may determine.

Jurisdiction And Powers of High Court (Article 225)

The high court is the protector of the Fundamental Rights of the citizens. It is vested with the power to interpret the Constitution. The Constitution empowers the Parliament and the state legislature to change the jurisdiction and powers of a high court. At present, a high court enjoys the following jurisdiction and powers:

• Original Jurisdiction: It means the power of a high court to hear disputes in the first instance, not by way of appeal. It extends to the following:
• Matters of admirality, will, marriage, divorce, company laws and contempt of court.
• Disputes relating to the election of members of Parliament and state legislatures.
• Regarding revenue matter or an act ordered or done in revenue collection.
• Enforcement of fundamental rights of citizens.
• Cases ordered to be transferred from a subordinate court involving the interpretation of the Constitution to its own file.
• >Writ Jurisdiction: Article 226 of the Constitution empowers a high court to issue writs including habeas corpus, mandamus, certiorari, prohibition and qua-warranto for the enforcement of the fundamental rights of the citizens and for any other purpose. The phrase ‘for any other purpose’ refers to the enforcement of an ordinary legal right.

The writ jurisdiction of the high court (under Article 226) is not exclusive but concurrent with the writ jurisdiction of the Supreme Court (under Article 32). It means, when the fundamental rights of a citizen are violated, the aggrieved party has the option of moving either the high court or the Supreme Court directly. However, the writ jurisdiction of the high court is wider than that of the Supreme Court. This is because, the Supreme Court can issue writs only for the enforcement of fundamental rights and not for any other purpose, i.e., it does not extend to a case where the breach of an ordinary legal right is alleged.

• Appellate Jurisdiction: A high court is primarily a court of appeal. It hears appeals against the judgments of subordinate courts functioning in its territorial jurisdiction. It has appellate jurisdiction in both civil and criminal matters. Hence, the appellate jurisdiction of a high court is wider than its original jurisdiction.
• Supervisory Jurisdiction: A high court has the power of superintendence over all courts and tribunals functioning in its territorial jurisdiction (except military courts or tribunals). (Article 227)
• Control over Subordinate Courts: in addition to its appellate jurisdiction and supervisory jurisdiction over the subordinate courts, a high court has an administrative control and other powers over them. These include the following:

It is consulted by the governor in the matters of appointment, posting and promotion of district judges and in the appointments of persons to the judicial service of the state (other than district judges). (Article 234)

It deals with the matters of posting, promotion, grant of leave, transfers and discipline of the members of the judicial service of the state (other than district judges). (Article 235)

It can withdraw a case pending in a subordinate court if it involves a substantial question of law that require the interpretation of the Constitution. It can then either dispose of the case itself or determine the question of law and return the case to the subordinate court with its judgment. (Article 228)

Its law is binding on all subordinate courts functioning within its territorial jurisdiction in the same sense as the law declared by the Supreme Court is binding on all courts in India.

• A Court of Record: As a court of record, a high court has two powers: (Article 215)

The judgments, proceedings and acts of the high courts are recorded for perpetual memory and testimony. These records are admitted to be of evidentiary value and cannot be questioned when produced before any subordinate court. They are recognised as legal precedents and legal references.

It has power to punish for contempt of court, either with simple imprisonment or with fine or with both.

The expression ‘contempt of court’ has not been defined by the Constitution.

Power of Judicial Review: Judicial review is the power of a high court to examine the constitutionality of legislative enactments and executive orders of both the Central and state governments. On examination, if they are found to be violative of the Constitution (ultra-vires), they can be declared as illegal, unconstitutional and invalid (null and void) by the high court. Consequently, they cannot be enforced by the government. Though the phrase ’judicial review’ has nowhere been used in the Constitution, the provisions of Articles 13 and 226 explicitly confer- the power of judicial review on a high court.

SUBORDINATE JUDICIARY

ORGANIZATION OF SUBORDINATE JUDICIARY

The Constitution also provides for appointment of subordinate judiciary. It provides for the appointment of district and subordinate judges, lays down their qualifications and places the whole of the civil judicial under the control of the High Court. The jurisdiction and nomenclature of subordinate courts in the various states of the country are different. At present, there are three or more tiers of civil and criminal courts below the High Court.

The subordinate judiciary in each district is headed by a District and Sessions Judge. The usual designations on the civil side are District Judge, Additional District Judge, and Civil Judge. On the criminal side, we have Sessions Judge, Additional Sessions Judge, Chief Judicial Magistrate, Judicial Magistrate etc.

JURISDICTION OF DISTRICT COURTS

The District Courts are at the top of all the subordinate or lower courts. They are however under the administrative control of the High Court of the State to which the district court belongs to. Their jurisdiction is confined to the districts they are responsible for, which could be just one or more than one. The original jurisdiction of the District Courts in civil matters is confined by not just the territorial limitations, but by pecuniary limitations as well.

The territorial and pecuniary jurisdiction in civil matters is usually set in concerned state central enactments on the subject of civil courts. If the amount in dispute in a matter is way above the pecuniary jurisdiction of the District Court, then the matter will be heard by the concerned High Court of that State.

On the criminal side, jurisdiction is exclusively derived from the criminal procedure code and all other Panel laws. As per this code the maximum sentence a district court may award to a convict is capital punishment.

The district court has appellate jurisdiction over all subordinate courts situated in the district on both civil and criminal matters. Subordinate courts, on the civil side (in ascending order) are, Junior Civil Judge Court, Principal Junior Civil Judge Court and Senior Civil Judge Court (also called sub-court). Subordinate courts, on the criminal side (in ascending order) are, Second Class Judicial Magistrate Court, First Class Judicial Magistrate Court and Chief Judicial Magistrate Court.

Certain matters on criminal side or civil side cannot be tried by a lesser court than a district court. This gives the District Court original jurisdiction in such matters.

The decisions of the District Courts are, of course, subject to the appellate jurisdiction of the High Courts.

APPOINMENT OF SUBORDINATE JUDGES

The Governor in consultation with the High Court appoints the district judges. A person who is not already in government service should have at least seven years’ experience at the bar to become eligible for the position of a district judge (Article 233).

Appointment of persons other than district judges to the judicial service of a State shall be made by the Governor in accordance with rules made there under. Besides the State Public Service Commission, the High Court has to be consulted in the matter of such appointments (Article 234).

The administrative control of the High Court over the district courts and other lower courts is full in as much as postings, promotions and grant of leave etc. to any person belonging to the judicial service of a State and holding any post inferior to the post of a judge is vested in the High Court. (Article 227)

QUASI JUDICIAL BODIES

Apart from the judicial bodies who enforce the laws and rules laid down by the legislature and executive and also interpret them (the Supreme Court and High Courts), there are numerous quasi judicial bodies who are involved in dispute resolutions. These quasi judicial bodies are the Tribunals and Regulators.

Tribunals are constituted as per relevant statutory provisions and are seen as an alternative forum for redressal of grievances and adjudication of disputes other than the Courts. Some of the important tribunals are, Central Administrative Tribunal (CAT), Telecom Disputes Settlement Appellate Tribunal (TDSAT), Competition Appellate Tribunal (COMPAT), Armed Forces Tribunal (AFT), Debt Recovery Tribunal (DRT), etc.

The kinds of cases the tribunals hear are limited to their specific area. For example, TDSAT can hear only matters related to telecom disputes and not matters of armed forces personnel. So the area of operation of these tribunals are marked out at the beginning itself by the statute under which it is constituted.

The same hold true for the various regulators like – TRAI, DERC, etc. They regulate the activities of companies which fall under their purview as per the statute.

 

PRELIMINARY QUESTIONS

 

1. What is the minimum age for appointment as a judge of the Supreme Court?

a) 35

b) 30

c) 40

d) No limit

 

2. What is the maximum age until the judge of Supreme Court holds the office?

a) 60 years

b) 75 years

c) 65 years

d) 70 years

 

3. A removal motion signed by 100 members (Lok Sabha) or 50 members (Rajya Sabha) is to be given to:-

a) President

b) Speaker

c) Chairman

d) Either (b) or (c)

 

4. The cases or reference made by the President under Article 143 are decided by a Bench consisting of:-

a) Atleast 5 judges

b) Atleast 7 judges

c) Atleast 3 judges

c) Atleast 3 judges

 

5. The judges of the Supreme Court are appointed by the:-

a) President

President in consultation with the members of the judiciary itself.

Judges of the Supreme Court

d) Vice-President

 

6. Which Article authorizes the President to seek the opinion of the Supreme Court on a question of law or fact of public importance which has arisen or which is likely to arise?

a) Article 137

b) Article 132

c) Article 136

d) Article 143

 

7. High Court can issue writs:-

Only for the enforcement of the fundamental rights

Only for purposes other than enforcement of fundamental rights

Not only for the enforcement of fundamental rights but also for other purposes

None of the above

 

8. The President can appoint duly qualified persons as additional judges of a High Court for a temporary period not exceeding:-

a) Six months

b) One year

c) Two years

d) Three years

 

9. Who has the power to appoint District Judges?

a) Governor

b) Governor in consultation with the High Court

c) President in consultation with the High Court

d) Vice-President

 

10. Which of the following is not a Quasi Judicial Body?

a) NCLT

b) DRT

c) Central Administrative Tribunal

d) None of the above

 

PAHUJA LAW ACADEMY

FEDERALISM/ INDIAN FEDERALISM

LECTURE – 7

Mains Questions

 

1. Discuss the essential features of Federalism.

 

2. As compared to other federal constitution, what are the distinctive features of the Indian Constitution?

 

3. Explain the term ‘Territory of India’.

 

4. What are the modes for formation of a new state?

 

5. Explain the various ways by which a new state may be admitted into the Union.

 

6. What is a federal state? What are the drawbacks of federal form of Government?

 

7. What are the essential features of federalism?

 

8. Discuss the Unitary features of Indian Constitution?

 

9. What is Doctrine of Territorial Nexus? Explain with the help of case laws.

 

10. Explain the Doctrine of Pith & Substance.

 

11. Explain the Doctrine of Colourable Legislation.

 

12. Explain the two-fold distribution of powers in the Constitution.

 

PAHUJA LAW ACADEMY

FEDERALISM/ INDIAN FEDERALISM

(OVERVIEW)

 

Striking feature no. 5

“Federal in structure but unitary in spirit”

Character of Union-State Relationship: Concept of Federalism

 

Federalism is a form of government in which the sovereign authority of political power is divided between the various units viz. Centre, States, Municipalities, etc. The federal State is a political convenience intended to reconcile national unity and integrity and power with maintenance of the State’s right.

The existence of co-ordinate authorities (i.e. general and regional governments) independent of each other is the gist of the federal principle. This is the traditional or classical view of federalism. The exceptions are permissible provided the federal principle is predominantly retained in the Constitution (Prof. Wheare). In a unitary Constitution, the powers of Government are centralized in one Government i.e. Centre.

According to Prof. Birch, federalism is “the system of government in which there is a division of powers between one general and several regional authorities, each of which in its own sphere is independent and coordinate with each other.“ The American Constitution is universally regarded as an example of federal Constitution (besides Canada, Australia and Switzerland).It establishes dual polity i.e. the Federal and the State Governments. The powers of both the Central and the State Governments are divided and both are independent in their own spheres.

The traditional view of federalism ignores compulsions of socio-economic forces operating in the modem era which have not left untouched the traditional federations. The insistence of traditional approach on independence in the mutual relationship of the States and Centre are too idealistic to be followed in the present era of inter-dependence and cooperation. The modem jurists thus talk of ‘cooperative federalism.’ There are concurrent powers – an area over which both the national and State governments operate.

According to Dicey, a federal State is “a political contrivance intended to reconcile national unity with maintenance of State rights.” Dicey calls federalism a political contrivance for a body of States which desire Union but not unity. Federalism is, therefore, a concept which unites separate States into a Union without sacrificing their own fundamental political integrity. Separate States, therefore, desire to unite so that all the member-States may share in formulation of the basic policies applicable to all and participate in the execution of decisions made in pursuance of such basic policies. Thus the essence of a federation is the existence of the Union and the States and the distribution of powers between them. Federalism, therefore, essentially implies demarcation of powers in a federal compact.

The modern jurists view federation as a pure creature of expediency whereby the powers are so distributed between the Central and State Governments that there is scope for constant adjustment of relations between the two sets of government according to requirement of time and place. The federalism varies from place to place, and from time to time depending on factors like – historical, geographical, economical and political.

Essential Features of Federalism

A federal Constitution usually has the following essential characteristics:-

A federal Constitution usually has the following essential characteristics:-

(i) Duality of Government and Distribution of Powers- The basis of distribution of powers between Central and State Governments is that in matters of national importance, authority is entrusted in the Union, and matters of local importance remain with the States.

(ii) Supremacy of Constitution- Every power, executive, legislative or judicial whether it belongs to the Centre or the State is subordinate to and controlled by the Constitution.

(iii) A Written Constitution- The Supreme Constitution is essential if Government is to be federal, and a written Constitution is essential if federal Government is to work well.

(iv) Rigidity of Constitution- In a rigid Constitution, the procedure of amendment is very difficult, and the power of amendment does not remain exclusively with either Central or State Governments.

(v) Authority of Courts- The judiciary, in a federal polity, has the final power to interpret the Constitution and guard the entrenched provisions of Constitution.

Example of Federal Constitution

The American Federation can be described as the outcome of the process of evolution, in that, the separate States first formed into a Confederation (1781) and then into a Federation (1789). Although the States may have their own Constitutions, the Federal Constitution is the suprema lex and is made binding on the States. That is because under the American Constitution, amendments to the Constitution are required to be ratified by three-fourths of the States.

Besides under that Constitution there is a single legislative list enumerating the powers of the Union and, therefore, automatically the other subjects are left to the States. This is evident from the Tenth Amendment. Of course, the responsibility to protect the States against invasion is of the Federal Government. The States are, therefore, prohibited from entering into any treaty, alliance, etc., with any foreign power.

The principle of dual sovereignty is carried in the judicial set-up as well since disputes under federal laws are to be adjudicated by federal courts, while those under State laws are to be adjudicated by State courts, subject of course to an appeal to the Supreme Court of the United States. The interpretation of the Constitution is by the United States Supreme Court.

 

INDIAN CONSTITUTION: FEDERAL OR QUASI-FEDERAL

The Indian federalism was designed on the basis of the working of the federalism in U.S.A., Canada and Australia. Yet it deviates from those federalism in many respects and establishes its own distinctive features. There is a difference of opinion among scholars about the nature of Indian Constitution- whether it is federal or not.

Federal Characteristics of Indian Constitution

There is a dual polity i.e. Central and State Governments. There is a Supreme Constitution. Our Constitution is a written and controlled (rigid) Constitution. It can be amended only to the extent of and in accordance with the provisions contained therein, the principal provision being Article 368. Further, the Constitution establishes an apex court in the form of the Supreme Court to maintain the authority of the courts.

The Constitution does incorporate the concept of federalism provisions. The provisions which establish the essence of federalism i.e. having States and a Centre, with a division of functions between them with sanction of the Constitution include, among others, Lists II and III of the Seventh Schedule that give plenary powers to the State Legislatures; the authority to Parliament to legislate in a field covered by the States under Art.252, only with the consent of two or more States; the competence of Parliament to legislate in matters pertaining to the State List, only for a limited period, under Art.249, “in the national interest”, and, under Art. 258 (1) to entrust a State Government (with the Governor’s consent) functions in relation to which executive power of the Union extends; decentralization of power through 73rd and 74th Amendments; etc. (Kuldin Nayar v UOI AIR 2006 SC 3127).

Deviations from Federal Characteristics: Unitary Features of Indian Constitution

In the following matters, it is pointed out, the Indian Constitution modifies the strict application of the federal principle:-

(i) Legislative Relations- Under the Art. 249, Parliament is empowered to make laws with respect to every matter enumerated in the State List, if it is necessary in the national interest. Similarly, legislation for giving effect to international agreements (Art.253). In case of inconsistency between the laws made by Parliament and laws made by Legislature of States, the laws made by Parliament whether passed before or alter the State law in

Previous sanction of the President is required for introduction of certain Bills in the State Legislatures (viz. Art. 304).

(ii) Administrative or Executive Relations – All planning is at the Union level (via Planning Commission), the States only implement the plans formulated by the Union. Further, there is All-India Services.

The executive power of every State has to be exercised “as to ensure compliance with the laws made by Parliament. Art. 365 authorises the President to hold that a situation has arisen in which Government of a State cannot be carried on in accordance with the provisions of Constitution, if the State fails to comply with or give effect to any directions given in exercise of the executive power of the Union.

(iii) Financial Relations- The States depend largely upon financial assistance from the Union (through grants-in-aids). Power of taxation(which is exercisable by the States in comparatively minor fields, the more important such as income-tax, wealth-tax, excise-duties other than those on certain specified articles and customs, being reserved to the Union) conferred by various entries under list II on the States is also severely restricted.

(iv) Parliaments power to form new States and alter boundaries of existing States- The very existence of the State thus, under Art.3, depends upon the sweet will of Union.

(v) Appointment of Governors- The Governors of States are appointed by President and answerable to him. They hold the office at the pleasure of the President. They thus act in a manner suitable to the President even at the cost of the interest of the States of which they are Governors. There are provisions in Constitution under which the Governor is required to send certain State laws for the assent of President and the President is not bound to give his assent.

(vi) Emergency Provisions- Under emergency, the normal distribution of powers between the Centre and States undergo a vital change (in the favour of the Centre). Under Art.356, the State Legislature can be dissolved and President’s rule can be imposed either on the Governor’s report or otherwise when there is a failure of the constitutional machinery in a State.

(vii) Single and Uniform Citizenship- for the whole country.

(viii) Uniform and Integrated Judicial system- for the whole country.

(ix) Inter-State Council- If at any time it appears to the President that the public interests would be served by the establishment of a Council charged with the duty of (a) inquiring into and advising upon disputes which may have arisen between States; (b)investigating and discussing subjects in which some or all of the States, or the Union and one or more of the States, have a common interest; or (c) making recommendations upon any such subject and, in particular, recommendations for the better co-ordination of policy and action with respect to that subject, it shall be lawful for the President to establish such a Council, and to define the nature of the duties to be performed by it and its organization and procedure (Art.263).

(x) Freedom of trade and commerce – for the whole country. The comprehensive provisions of Part XIII seek to make India a single economic unit for purposes of trade and commerce under the overall control of the Union Parliament and the Union executive.

Thus, in certain circumstances, the Constitution empowers the Centre to interfere in the State matters and thus places the States in a subordinate position or converts the Union into a unitary State, which violates the federal principle. The similar views were expressed in State of W. B. v Union of India case (discussed later).

In the opinion of Prof Wheare, the Constitution is almost ‘quasi-federal’ ….. (devolutionary in character) a unitary State with subsidiary federal features, rather than a federal State with subsidiary unitary features. Jennings has characterised the Indian Government system under the Constitution as ‘a federation with a strong centralising tendency’.

Austin and A.H. Birch used the term “Cooperative federalism” for Indian system i.e. it is neither purely federal nor purely unitary, but a combination of both. To ensure cooperation between Union and States, a strong centre is there but regional governments are not weak, and there is mutual independence of two governments. The regional governments are partially dependent upon payments from Centre, and the Centre by use of conditional grants, frequently promote development in matters which are constitutionally assigned to the regions.

Dicey holds that the extent of federalism in India is largely watered down by the needs or progress and development of a country which has to be nationally integrated, politically and economically co-ordinated, and socially, intellectually and spiritually uplifted.

Although Dr. Ambedkar thought that our Constitution is federal “in as much as it establishes a dual polity”, he also said in the Constituent Assembly, that our Constitution makers had avoided the ‘tight mould of federalism’ in which the American Constitution was forged. Dr. Ambedkar, one of the principal architects of our Constitution considered our Constitution to be ‘both unitary as well as federal according to the requirements of time and circumstances.’

“The correct view”, observes Dr. V.N. Shukla “is that emergency provisions which come into operation only on the happening of the specific contingencies, do not modify or destroy the federal system. It is rather a merit of the Constitution that it visualises the contingencies when the strict application of the federal principle might destroy the basic assumption on which our Constitution is built. The Constitution by adopting itself to changed circumstances strengthens the Government in its endeavour to overcome the crisis. In an emergency the behaviour of each federal Constitution is very much different from that in peace time.”

Criticism of Wheare’s views

The term “quasi-federal” as suggested by Wheare is very vague as it does not denote how powerful the Centre is, how much deviation there is from the pure ‘federal model’, etc. It may be that Centre has been assigned a larger role than the States but that by itself does not detract from the federal nature of Constitution, for it is not the essence of federalism to say that only so much, and not more power, is to be given to the Centre.

The federalism varies from place to place, and from time to time depending on factors like – historical, geographical, economical and political. Indian Constitution is sufficiently federal, and it is no less federal than American federalism. The framers of Indian Constitution kept in view the practical needs of country designed on federal structure not on the footing that it should conform to some theoretical or standard pattern, but on the basis that it should be able to sub serve the need of the vast and diverse country like India.

Conclusions: Indian Federalism is ‘Unique’

India adopted a federal structure as the different parts of the country were at different stages of development and it would have been difficult to control from one centre; and to ensure minorities their due place.

However, the Indian federalism is unique because of its mode of formation i.e. from Union to States (creation of autonomous units and then combining them into a federation), and not vice versa. It is to be noted that term ‘Union of States’ (Art.1) and not ‘federation’ is used in the Constitution. Also, the units have no right to secede (as in a confederation).

The Constitution of India is neither purely federal nor purely unitary, but is a combination of both. It is a union of composite States of a novel type. Neither the Parliament not the State legislation is ‘sovereign’ because each being limited by the Constitutional provisions affecting the distribution of powers. The Constitution enshrines the principle that in spite of federalism, the national interest ought to be paramount. Thus, the Indian Constitution is mainly federal with unique safeguards for enforcing national unity and growth.

The scope of application of federal principle in India is shown by the scope of State legislatures. However, Indian federation is not defective; the defect is political because there is a conflict between opposition-party ruled States and the Central Government. Also, federalism is not dead in India, as evidenced by the fact that new regions are demanding statehood and union has yielded, thus States like Manipur, Tripura, Goa, etc. have been created. Moreover, in spite of conflicts, the opposition-party ruled States do exist.

Case Law

1. LEADING CASE: RAM JAWAYA KAPUR v STATE OF PUNJAB (AIR 1955 SC 549)

2. LEADING CASE: STATE OF WEST BENGAL v UNION OF INDIA (AIR 1963 SC 1241)

3. LEADING CASE: S.R. BOMMAI v UNION OF INDIA (AIR 1994 SC 1918)4. LEADING CASE: STATE OF HARYANA V STATE OF PUNJAB (AIR 2002 SC 685)

5. LEADING CASE: KULDIP NAYAR v UNION OF INDIA (AIR 2006 SC 3127)

 

PAHUJA LAW ACEDFEMY

PRELIMINARY QUESTIONS

 

1. Parliament may form a new state or alter boundaries by:-<

a) Simple majority

b) Ordinary Legislative process

c) Either (a) or (b)

d) Both (a) and (b)

 

2. Which article declares that “India, that is Bharat, shall be a Union of States”?<

a) Article 2

b) Article 1

c) Article 4

d) Article 3

 

3. The term “establish” means:-<

a) Creation of a State

b) Creation of a State where none existed before

c) Admission of a State already inexistence as a ‘State’ i.e. duly organized political community

d) Admission of a State

 

4. Which Article empowers the Parliament to form new states?<

 

a) Article 3 (e)

b) Article 3 (b)

c) Article 3 (c)

d) Article 3 (a)

 

5. No bill for the purpose of ‘Alteration of areas, boundaries or name of states’ shall be introduced in either House of the Parliament except on the recommendation of:-<

a) Cabinet Ministers

b) President

c) Governor

d) Prime Minister

 

6. Article 4(2) says that laws relatable to __________ do not amount to constitutional amendments for the purposes of Article 368.<

a) Article 1

b) Article 2

c) Article 3

d) Both (b) and (c)

 

7. Which schedule specifies the number of seats to which each State is entitled to in the Council of States?<

a) Second Schedule

b) First Schedule

c) Fourth Schedule

d) Third Schedule

 

8. According to which of the following, a federal state is a political contrivance intended to reconcile national unity with maintenance of state rights?<

a) Prof. Birch

b) Dicey

c) Prof. Wheare

d) Austin

 

9. Under which Article, the state legislature can be dissolved and President’s rule can be imposed either on the Governor’s report or otherwise when there is a failure of the constitutional machinery in a State?<

a) Article 300

b) Article 356

c) Article 400

d) Article 378

 

10. Article 3 (b) to (e) deals with:-<

a) Formation of New States

b) Alteration of Areas, Boundaries or Names of States

c) Admission or Establishment of New States

d) Supplementary Matters

 

11. Who defined Federal State as a political contrivance intended to reconcile national unity with maintenance of State rights?<

a) Prof. Birch

b) Dr. Ambedkar

c) Dicey

d) Dr. V.N. Shukla

 

12. The States depend largely upon financial assistance from the:-<

a) State

b) Union

c) International Grants

d) None of the above

 

13. The Governors of States are appointed by:-<

b) Council of Membersa) President

c) Members of Lok Sabha

d) Members of Rajya Sabha

 

14. The term “Cooperative Federalism” for Indian System was used by:-<

a) Austin and A.H. Birch

b) Prof Wheare

c) Dicey

d) Dr. Ambedkar

 

15. The three lists which provide for distribution of legislative powers is given under:-<

a) 7th Schedule

b) 10th Schedule

c) 5th Schedule

d) 9th Schedule

 

16. How many items are listed in the Union List?<

a) 65

b) 66

c) 47

d) 97

 

17. Article 245 provides for:-<

a) Territorial Legislative Jurisdiction

b) Distribution of Legislative Subjects

c) Administrative Relations between Union and States

d) Residuary Powers

 

18. In which of the following case it was held that two laws enacted by two different governments and by two different legislatures could be read neither in conjunction nor by comparison for the purpose of finding out if they were discriminatory?<

a) A.H. Wadia v I.T. Commr., Bombay

b) State of M.P. v G.C. Mandawar

c) State of W.B. v Union of India

d) Electronics Corpn., India v C.I.T.

 

19. The case United Provinces v. Atiqa Begum relates to:-<

a) Ancillary or Incidental Powers

b) Doctrine of Pith and Substance

c) Doctrine of Liberal and Harmonious Construction

d) Principles of Interpretation of Lists

 

20. The case State of Rajasthan v. G. Chawla relates to:-<

a) Ancillary or Incidental Powers

b) Doctrine of Pith and Substance

c) Doctrine of Colourable Legislation

d) Principles of Interpretation of Lists

 

PAHUJA LAW ACADEMY

PANCHAYATI RAJ

LECTURE – 8

Mains Questions

 

1. What was the object of appointment of Ashok Mehta Committee?

 

2. What are the salient features of Panchayat?

 

3. What are the powers and functions of Panchayat?

 

4. Explain the Role of Finance Commission.

 

5. Discuss the composition of Municipalities.

 

PANCHAYATI RAJ

 

Panchayati Raj signifies the system of rural local self-government to build democracy at the grass root level aiming at rural development. It was constitutionalised through the 73rd Constitutional Amendment Act of 1992.

Balwant Rai G Mehta committee on the working of Community Development Programme (1952) and the National Extension Service (1953) in November 1957 recommended the establishment of the scheme of ‘democratic decentralisation’, which ultimately came to be known as Panchayati Raj. Specific recommendations are:

Establishment of a three-tier panchayati raj system- gram panchayat at the village level, panchayat samiti at the block level and zila parishad at the district level.

The village panchayat should be constituted with directly elected representatives, whereas the panchayat samiti and zila parishad should be constituted with indirectly elected members.

All planning and development activities should be entrusted to these bodies.

The panchayat samiti should be the executive body while the zila parishad should be the advisory, coordinating and supervisory body.

The district collector should be the chairman of the zila parishad.

There should be a genuine transfer of power and responsibility to these democratic bodies.

Adequate resources should be transferred to these bodies to enable them to discharge their functions and fulfill their responsibilities.

A system should be evolved to effect further devolution of authority in future.

These recommendations were accepted by the National Development Council in January 1958. The council did not insist on a single rigid pattern and left it to the states to evolve their own patterns suitable to local conditions.

Rajasthan was the first state to establish Panchayati Raj in 1959, in Nagaur district.

Ashok Mehta Committee

In December 1977, the Janata Government appointed a committee on panchayati raj institutions under the chairmanship of Ashok Mehta which submitted its report in 1978.Its main recommendations were:

The three-tier system of panchayati raj should be replaced by the two-tier system, that is, zila parishad at the district level, and below it, the mandal panchayat.

A district should be the first point for decentralisation under popular supervision below the state level.

Zila parishad should be the executive body and made responsible for planning at the district level.

The panchayati raj institutions should have compulsory powers of taxation to mobilise their own financial resourses.

Development functions should be transferred to the zila parishad and all development staff should work under its control and supervision.

No action was taken on the recommendations of the Ashok Mehta Committee at the central level However, Karnataka, West Bengal and Andhra Pradesh took steps to revitalize the panchayati raj, keeping in view some of the recommendations of the committee.

GVK Rao Committee

The Committee on Administrative Arrangement for Rural Development and Poverty Alleviation Programmes was appointed by the Planning Commission in 1985. It concluded that the developmental process was gradually bureaucratised and divorced from Panchayati Raj. Following recommendations to revitalise the Panchayati Raj system were made:

Zila Parishad should be of pivotal importance in the scheme of democratic decentralisation.

The Panchayati Raj institutions at the district and lower levels should be assigned an important role with respect to planning, implementation and monitoring of rural development programmes.

LM Singhvi Committee

In 1986 a committee on ‘Revitalisation of Panchayati Raj Institutions for Democracy and Development’ was appointed which made the following recommendations.

The PRI should be constitutionally recognised, protected and preserved by adding new chapter in the Constitution.

Ensure regular, free and fair elections to the Panchayati Raj bodies.

Nyaya Panchayats should be established for a cluster of villages. It also emphasised the importance of the Gram Sabha and called it as the embodiment of direct democracy.

The judicial tribunals should be established in each state to adjudicate controversies about election to the Panchayati Raj institutions, their dissolution and other matters related to their functioning.

Thungon Committee

In 1988 P.K. Thungon Committee to examine the political and administrative structure in the district for the purpose of district planning suggested for the strengthening of the Panchayati Raj system.

The Panchayati Raj bodies should have a fixed tenure of five years.

Maximum period of super session of a body should be six months.

A planning and co-ordination committee should be set-up at the state level under the chairmanship of the minister for planning. The presidents of Zilla Parishads should be its members.

A detailed list of subjects for Panchayati Raj should be prepared and incorporated in the Constitution.

A state finance commission should be set-up in each state. It would lay down the criteria and guidelines for the devolution of finances to the Panchayati Raj institutions.

Gadgil Committee

The Committee on Policy and Programmes was constituted in 1988. The committee was asked to consider the question of how best Panchayati Raj institutions could be made effective.

The Panchayati Raj bodies should have the responsibility of preparation and implementation of plans for socio-economic development. For this purpose, a list of subjects should be specified in the constitution.

Establishment of a State Election Commission for the conduct of elections to the Panchayats.

The above recommendations of the Gadgil Committee became the basis for drafting an amendment bill aimed at conferring the constitutional status and protection to the Panchayati Raj institutions.

After multiple efforts of giving Constitutional status to PRIs by the Rajiv Gandhi government and by the V P Singh government, P V Narsimha Rao government in 1991 in considered the matter again. It drastically modified the proposals in this regard to delete the controversial aspects and introduced a constitutional amendment bill in the Lok Sabha in September, 1991. This bill finally emerged as the 73rd Constitutional Amendment Act, 1992 and came into force on 24 April, 1993.

73rd Amendment Act, 1992

It added a new Part-IX to the Constitution and consists of provisions from Articles 243 to 243 O. It also added a new Eleventh Schedule. This schedule contains 29 functional items of the panchayats. It deals with Article 243-G.

The act has given a practical shape to Article 40 of the Constitution which says that, “The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.” This article forms a part of the Directive Principles of State Policy.

The act has brought PRIs under the purview of the justiciable part of the Constitution making the state governments constitutionally obligated to adopt the new panchayati raj system in accordance with the provisions of the act.

Consequently, neither the formation of panchayats nor the holding of elections at regular interval depend on the will of the state government any more.

Provisions of the act can be grouped into two categories-compulsory (mandatory or obligatory) which have to be included in the state laws. The voluntary provision, may be included at the discretion of the states. The provisions of the act ensures the right of the states to take local factors like geographical, politico-administrative and others, into consideration.

Salient Features

Gram Sabha: Gram Sabha as the foundation of the panchayati raj system will be a body consisting of persons registered in the electoral rolls of a village comprised within the area of Panchayat at the village level. Thus, it is a village assembly consisting of all the registered voters in the area of a panchayat. It may exercise such powers and perform such functions at the village level as the legislature of a state determines.

Three-Tier System: panchayats at the village, intermediate, and district levels to bring about uniformity in the structure of panchayati raj throughout the country (a state having a population not exceeding 20 lakh may not constitute panchayats at the inter-mediate level).

Election: All the members of panchayats at the village, intermediate and district levels shall be elected directly by the people. The chairperson at the intermediate and district levels shall be elected indirectly—by and from amongst the elected members while chairperson of a panchayat at the village level shall be elected in such manner as the state legislature determines.

Reservation of Seats: Reservation for scheduled castes and scheduled tribes in every panchayat (i.e., at all the three levels) in proportion of their population in the panchayat area. The act provides for the reservation of not less than one-third of the total number of seats for women (including the number of seats reserved for women belonging the SCs and STs). Further, not less than one-third of the total number of offices of chairpersons in the panchayats at each level shall be reserved for women. The act also authorises the legislature of a state to make any provision for reservation of seats in any panchayat or offices of chairperson in the panchayat at any level in favour of backward classes.

Duration of Panchayats: Five-year term of office at every level. However, it can be dissolved before the completion of its term. Further, fresh elections to constitute a panchayat shall be completed.

before the expiry of its duration of five years; or

in case of dissolution, before the expiry of a period of six months from the date of its dissolution.

Disqualifications: A person shall be disqualified from being a member of panchayat if he is so disqualified under any law for the time being in force for the purpose of elections to the legislature of the state concerned, or made by the state legislature.

However, no person shall be disqualified on the ground that he is less than 25 years of age if he has attained the age of 21 years. Further, all questions of disqualifications shall be referred to such authority as the state legislature determines.

State Election Commission

The superintendence, direction and control of the preparation of electoral rolls and the conduct of all elections to the panchayats shall be vested in the state election commission.

It consists of a state election commissioner to be appointed by the governor. His conditions of service and tenure of office shall also be determined by the governor. He shall not be removed from the office except in the manner and on the grounds prescribed for the removal of a judge of the state high court.

The state legislature may make provision with respect to all matters relating to elections to the panchayats.

Powers and Functions

The state legislature may endow the Panchayats with powers and authority as may be necessary to enable them to function as institutions of self-government.

Such a scheme may contain provisions for the devolution of powers and responsibilities upon Panchayats with respect to

preparation of plans for economic development and social justice;

implementation of schemes for economic development and social justice as may be entrusted to them, including those in relation to the 29 matters listed in the Eleventh Schedule.

The state legislature may authorize a panchayat to levy, collect and appropriate taxes, duties, tolls and fees; provide for making grants-in-aid to the panchayats from the consolidated fund of the state; and provide for constitution of funds for crediting all moneys of the panchayats.

Role of Finance Commission

The governor shall, after every five years, constitute a finance commission to review the financial position of the panachayats.

The principles that should govern distribution between the state and the panchayats of the net proceeds of the taxes, duties, tolls and fees levied by the state. The grants-in-aid to the panchayats from the consolidated fund of the state.

The measures needed to improve the financial position of the panchayats.

Audit of Accounts: The state legislature will make provisions with respect to the maintenance of accounts by the panchayats and the auditing of such accounts.

The president may direct that the provisions of the act shall apply to any union territory subject to such exceptions and modifications as he may specify.

Exempted States and Areas: The act does not apply to Jammu and Kashmir, Nagaland, Meghalaya and Mizoram. The areas include, (a) the scheduled areas and the tribal areas in the states; (b) the hill area of Manipur for which a district council exists; and (c) Darjeeling district of West Bengal for which Darjeeling Gorkha Hill Council exists.

The Parliament may extend the provisions of this Part to the scheduled areas subject to such exceptions and modifications as it may specify. Under-this provision, the Parliament has enacted the ‘Provisions of the Panchayats (Extension to the Scheduled Areas) Act’, 1996 (PESA).

Bar to Interference by Courts in Electoral Matters: The act bars the interference by courts in the electoral matters of panchayats. It declares that the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies cannot be questioned in any court. No election to any panchayat is to be questioned except by an election petition presented to such authority and in such manner as provided by the state legislature.

Municipalities

The system of urban government was constitutionalised through the 74th Constitutional Amendment Act of 1992.

Urban Local Government signifies the governance of an urban area by the people through their elected representatives which is demarcated for this purpose by the state government.

There are eight types of urban local governments in India municipal corporation, municipality, notified area committee, town area committee, cantonment board, township, port trust and special purpose agency.

At the Central level, the subject of ‘urban local government’ is dealt with by the following three ministries: (i) Ministry of Urban Development, created as a separate ministry in 1985 (ii) Ministry of Defence in the case of cantonment boards (m) Ministry of Home Affairs in the case of Union Territories

Evolution

The urban local government originated and developed in modem India during the period of British rule.

In 1687-88, the first municipal corporation in India was set up at Madras.

In 1726, the municipal corporations were set up in Bombay and Calcutta.

Lord Mayo’s Resolution of 1870 on financial decentralisation visualized the development of local self-government institutions.

Lord Ripon’s Resolution of 1882 has been hailed as the ‘Magna Carta’ of local self- government. He is called as the father of local-self- government in India.

Under the dyarchical scheme introduced in Provinces by the Government of India Act of 1919, local self-government became a transferred subject.

Under the provincial autonomy scheme introduced by the Government of India Act of 1935, local self-government was declared a provincial subject.

74th Amendment Act, 1992

It added a new Part IX-A to the Constitution entitled as ‘The Municipalities’ and consists of provisions from Articles 243-P to 243-ZG which gave constitutional status to the municipalities.

It has also added Twelfth Schedule to the Constitution containing eighteen functional items of municipalities (Article 243-W).

Municipalities were brought under the purview of justiciable part of the Constitution making the state governments constitutionally obligated to adopt the new system of municipalities in accordance with the provisions of the act.

Salient Features

Three Types of Municipalities –

nagar panchayat for a transitional area i.e. an area transiting from rural to urban,

municipal council for a smaller urban area

Salient Features

Three Types of Municipalities –

nagar panchayat for a transitional area i.e. an area transiting from rural to urban,

municipal council for a smaller urban area

municipal corporation for a larger urban area.

Composition

All the members shall be elected directly by the people of the municipal area.

Each municipal area shall be divided into territorial constituencies to be known as wards.

The state legislature may provide the manner of election of the chairperson of a municipality.

It may also provide for the representation of persons having special knowledge or experience in municipal administration without the right to vote in the meetings of municipality, the members of the Lok Sabha and the state legislative assembly representing constituencies which comprise wholly or partly the municipal area, members of the Rajya Sabha and the state legislative council registered as electors within the municipal area and the chairpersons of committees.

Wards Committees consisting of one or more wards, within the territorial area of a municipality having population of three lakh or more will be constitued.

The act provides for the reservation of seats for the scheduled castes and the scheduled tribes in proportion of their population.

It provides for reservation of not less than one-third of the total number of seats for women (including the number of seats reserved for woman belonging to the SCs and the STs).

The state government may make any provision for the reservation of seats in any municipality or offices of chairpersons in municipalities in favour of backward classes.

The act provides for a five-year term of office for every municipality but it can be dissolved before the completion of its term.

Fresh elections to constitute a municipality shall be completed

          

before the expiry of its duration of five years; or

in case of dissolution, before the expiry of a period of six months from the date of its dissolution.

Disqualifications

The provisions of disqualification is similar to those enumerated for members in Panchayati Raj Institutions Similarly, no person shall be disqualified on the ground that he is less than 25 years of age if he has attained the age of 21 years.

Powers and Functions

The state legislature endows the municipalities with the necessary powers and authority to enable them to function as institutions of self-government.

Provisions can include the devolution of powers and responsibilities upon municipalities at the appropriate level with respect to preparing of plans for economic development and social justice; implementation of schemes for economic development and social justice.

Finances

The state legislature may

authorise a municipality to levy, collect and appropriate taxes, duties, tolls and fees;

assign to a municipality taxes, duties, tolls and fees levied and collected by state government;

provide for making grants-in-aid to the municipalities from the consolidated fund of the state; and

provide for constitution of funds for crediting all moneys of the municipalities.

Finance Commission shall also review the financial position of municipalities and make recommendation to the governor as to:

The principles that should govern the distribution between the state and the municipalities, the net proceeds of the taxes duties, tolls and fees levied by the state.

The determination of the taxes, duties, tolls and fees that may be assigned to the municipalities.

The grants-in-aid to the municipalities from the consolidated fund of the state.

The measures needed to improve the financial position of the municipalities.

The governor shall place the recommendations of the commission along with the action taken report before the state legislature.

Exempted Areas

The act does not apply to the scheduled areas and tribal areas in the states.

It does not affect the functions and powers of the Darjeeling Gorkha Hill Council of the West Bengal.

District Planning Committee shall be constituted at the district level to consolidate the plans prepared by panchayats and municipalities in the district, and to prepare a draft development plan for the district as a whole. Four-fifths of the members of a district planning committee should be elected by the elected members of the district panchayat and municipalities in the district from amongst themselves.

While preparing the draft development plan district planning committee shall regard matters of common interest between the Panchayats and the Municipalities including spatial planning, sharing of water and other physical and natural resources, the integrated development of infrastructure and environmental conservation.

Metropolitan Planning Committee is to be established in every metropolitan area to prepare a draft development plan. The state legislature may make provisions with about the composition of such committees, the manner of election of members of such committees, functions in relation to planning and coordination for the metropolitan area. Two-thirds of the members of a metropolitan planning committee should be elected by the elected members of the municipalities and chairpersons of the panchayats in the metropolitan area from amongst themselves.

The chairpersons of such committees shall forward the development plan to the state government.

The act bars interference by courts in the electoral matters of municipalities. It declares that the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies cannot be questioned in any court, no election to any municipality is to be questioned except by an election petition presented to such authority and in such manner as provided by the state legislature.

Types of Urban Government

There are eight types of urban local bodies for the administration of urban areas:

Municipal Corporations are created for the administration of big cities like Delhi, Mumbai, Kolkata.

They are established in the states by the acts of the concerned state legislatures, and in the union territories by the acts of the Parliament of India. A municipal corporation has three authorities – the Council which is the deliberative and legislative wing of the corporation. The Council is headed by a Mayor assisted by a Deputy Mayor. He is elected in a majority of the states for a one-year renewable term. They deal with public works, education, health, taxation, finance and so on.

The municipal commissioner is responsible for the implementation of the decisions taken by the council and its standing committees appointed by the state government and is generally a member of the IAS.

Municipalities are established for the administration of towns and smaller cities set up in the states by the acts of the concerned state legislatures and in the union territory by the acts of the Parliament of India. Municipality also has three authorities, namely, the council, the standing committees and the chief executive officer. The council is the deliberative and legislative wing of the municipality. Unlike the Mayor of a municipal corporation, the Chairman of municipality plays a significant role and is the pivot of the municipal administration. The standing committees facilitate the working of the council and deal with public works, taxation, health, finance and so on.

Notified Area Committee is created for the administration of two types of areas-a fast developing town due to industrialisation, and a town which does not yet fulfil all the conditions necessary for the constitution of a municipality, but otherwise considered important by the state government. Its powers are equivalent to those of a municipality. It is an entirely nominated body since all the members of a notified area committee including the chairman are nominated by the state government. Thus, it is neither an elected body nor a statutory body.

Town Area Committee is set up for the administration of a small town. It is a semi-municipal authority and is entrusted with a limited number of civic functions like drainage, roads, street lighting, and conservancy. It is created by a separate act of a state legislature. It may be wholly elected or wholly nominated by the state government or partly elected and partly nominated.

Cantonment Board is established for municipal administration for civilian population in the cantonment area under the provisions of the Cantonments Act of 2006. It works under the administrative control of the defence ministry of the Central government. It consists of partly elected and nominated members. The elected members hold office for a term of five years while the nominated members continue so long as they hold the office in that station. The functions performed by a cantonment board are similar to those of a municipality. These are statutorily categorized

into obligatory functions and discretionary functions. The sources of income includes both, tax revenue and non-tax revenue.

Township is established by the large public enterprises to provide civic amenities to its staff and workers who live in the housing colonies built near the plant. The enterprise appoints a town administrator to look after the administration of the township. The township form of urban government has no elected members.

Port Trustare established in the port areas like Mumbai, Kolkata, Chennai and so on for managing and protecting the ports and providing civic amenities. A port trust is created by an Act of Parliament.

Special Purpose Agency undertake designated activities that belong to the domain of municipal corporations or municipalities or other local urban governments. In other words, these are function- based and not area-based. They are known as ‘single purpose’, ‘unipurpose’ or ‘special purpose’ agencies or ‘functional local bodies’. Such bodies are Town improvement trusts, Urban development authorities, Water supply and sewerage boards, Housing boards, Pollution control boards, Electricity supply boards, City transport boards. These functional local bodies are established as statutory bodies by an act of state legislature or as departments by an executive resolution and function as autonomous bodies and deal with the functions allotted to them independently of the local urban governments, that is, municipal corporations or municipalities and so forth. They are not subordinate agencies of the local municipal bodies.

Municipal Personnel

They are of three types- Separate Personnel System, Unified Personnel System, Integrated Personnel System.

Central Council of Local Government

It was set up in 1954 constituted under Article 263 of the Constitution of India by an order of the President of India. The Council is an advisory body and consists of the Minister for Urban Development and the ministers for local self- government in states. The Union minister acts as the Chairman of the Council.

The Council considers and recommends the policy matters, makes proposals for legislation, examines the possibility of cooperation between the Centre and the states, recommends Central financial assistance and reviews the work done by the local bodies with the Central financial assistance.

 

PRELIMINARY QUESTION

 

1. The executive power shall be vested in the:-

a) Governor

b) Chief Minister

c) Council of Minister

d) Advocate General of the State

 

2. Article 153 to 167 in Part VI of the Constitution deals with:-

a) Panchayati Raj System

b) State Executive

c) Fundamental Duties

d) Supreme Court

 

3. A person shall hold the office of Governor for a term not exceeding:-

a) 7 years

b) 3 years

c) 5 years

d) 1 year

 

4. Which Article provides for the Power of Governor to grant pardons, etc and to suspend, remit or commute sentences in certain case?

a) Article 159

b) Article 161

c) Article 160

d) Article 156

 

5. Article 158(4) provide the:-

a) Emoluments and allowances of governor shall not be diminished during his term of office.

b) The governor by writing under his hand addressed to the prez resign his office.

c) The governor shall be appointed by the president

d) None of the above

 

6. What is the minimum number of Minister, including the Chief Minister, in a State as guaranteed under Article 164?

a) 10

b) 12

c) 15

d) 20

 

7. Who amongst the following shall be responsible to the Legislative Assembly of the State?

a) Governor

b) Council of Ministers

c) Advocate General for the State

d) Chief Minister

 

8. The Salaries and allowances of Ministers are specified in:-

a) Third Schedule

b) Fifth Schedule

c) Fourth Schedule

d) Second Schedule

 

9. Who shall be the Advocate General of the State?

a) A person who is qualified to be appointed as a Judge of High Court

b) A person who is qualified to be appointed as a Judge of Supreme Court

c) A person who is qualified to be appointed as a Judge of District Court

d) Any of the above

 

10. The Advocate General shall hold the office during the pleasure of the:-

a) Chief Minister

b) President

c) Council of Ministers

d) Governor

 

11. GVK Rao Committee was appointed for:-

a) Administrative arrangement for rural development and poverty alleviation programmes

b) Panchayati Raj Institutions

c) Revitalisation of Panchayati Raj Institutions

d) Examine the political and administrative structure

 

12. 12) LM Singhvi Committee was appointed for:-

a) Administrative arrangement for rural development and poverty alleviation programmes

b) Panchayati Raj Institutions

c) Revitalisation of Panchayati Raj Institutions

d) Examine the political and administrative structure

 

13. The Eleventh Schedule was added by:-

a) 72nd Amendment

b) 73rd Amendment

c) 74th Amendment

d) 75th Amendment

 

14. The preparation of electoral rolls shall be vested in the:-

a) Panchayat

b) State Election Commission

c) Gram Sabha

d) None of the above

 

15. The 73rd Amendment Act, 1992 provides for reservation of not less than one third of the total number of seats for:-

a) SC

b) ST

c) OBC

d) Women (including SCs and STs)

 

16. The governor shall constitute a finance commission to review the financial position of the panchayats after every:-

a) 3 years

b) 5 years

c) 2 years

d) 7 years

 

17. The system of Urban Development was constitutionalised through:-

a) 74th Amendment

b) 73rd Amendment

c) 75th Amendment

d) 77th Amendment

 

18. There are _____ types of Urban Local Governments.

a) 7

b) 5

c) 8

d) 10

 

19. The first Municipal Corporation in India was set up at:-

a) Calcutta

b) Madras

c) Bombay

d) New Delhi

 

20. Who amongst the following is called as the father of local-self-government in India?

a) Lord Mayo

b) Lord Ripon

c) Rajiv Gandhi

d) Indira Gandhi