PAHUJA LAW ACADEMY
Lecture – 1
Preamble to the Constitution
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.
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.
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:
“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’).
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:
- It contains the enacting clause which brings the Constitution into force.
- It indicates the source of Constitution.
- It declares the basic type of Government and polity which is sought to be established in the country.
- 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.
- It serves as a challenge to the people to adhere to the ideals enshrined in it (‘Justice, Liberty, Equality, Fraternity, etc.).
- 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.
- 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)
- Which of the following is vested in the Preamble of Indian Constitution
- Fundamental philosophy
- Making of the constitution
- Communist nature
- Atheist state
- Who denoted the Preamble as an Identity Card
- Jawahar Lal Nehru
- R. Ambedkar
- N. Rao
- A. Palkhiwala
- Which were inserted from the following in 42nd Constitutional Amendment
- Socialist, Republic, Secular
- Socialist, Secular, Integrity
- Socialist, Sovereignty, Republic
- Socialist, Republic, Integrity
- Consider the followings in relation to Preamble
- Origin of the Preamble was from the Objective Resolution presented by Jawahar Lal Nehru on December 13, 1946
- Preamble cannot be termed as Objective
(a) Only 1
(b) Only 2
(c) Both 1 and 2
(d) Neither 1 nor 2
- Choose from the following the true meaning of Sovereignty
- Independence of taking decision in internal matters
- Independence of taking decision in external matters
- Both (a) and (b)
- Neither (a) nor (b)
- The words ‘Freedom’, ‘Equality’ and ‘Fraternity’ were taken from which country
- Consider the followings
- Preamble was considered as amendable under Keshavananda Bharti v. State of Kerala (1973)
- Preamble was considered as amendable under Berubari union case (1960)
Which of the above are true?
- Only 1
- Only 2
- Both 1 and 2
- Neither 1 nor 2
- Who said: “The Preamble of the Constitution is an ideology/ philosophy of futuristic dream”
- Jawahar Lal Nehru
- R. Ambedkar
- M. Munshi
- Sir Alladi Krishna Swami Ayyar
- Which of the following is related to Constitutional amendment of Preamble
- 44th amendment
- 42nd amendment
- 61st amendment
- 69th amendment
- Justice in relation to (Social, economic and political) was taken from
- Who said “Political democracy cannot last unless there lies at the base of it social democracy”
- N. Rao
- R. Ambedkar
- Jawahar Lal Nehru
- Sardar Vallabh bhai Patel
- The Preamble of India contains
- Source, nature and object of the Constitution
- Source, nature and object of the Dictatorship
- Source, nature and object of Religionist
- Source, nature and object of Monarchy
- Which nature of Socialism is accepted in India
- Fabian Socialism
- Communist Socialism
- Democratic Socialism
- Scientific Socialism
- Which nature of democracy is prevailing in India
- Direct democracy
- Indirect democracy
- Mixed form of direct and indirect democracy
- Neither (a) nor (b)
- Objective resolution was presented in constituent assembly on
- December 13, 1946
- January 23, 1947
- January 22, 1946
- January 22, 1947
- What was the true constitutional state of Republic of India, when Indian Constitution came into force
- Democratic Republic
- Sovereignty, secularism, democratic republic
- Sovereignty, democratic republic
- Sovereignty, Socialist, Secularism
- Which one of the following was not mentioned in Preamble in the year 1975
- Which of the following states India as Secular State
- Fundamental Rights
- 9th Schedule
- Directive Principle of State policy
PAHUJA LAW ACADEMY
LECTURE NOTE – 2
Write in under 150 words:-
- 1. Describe the elections provisions of President and Vice President.
- 2. Explain the Constitution position of President with reference to important provisions and
- 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.
Q.6. Explain the power of president under Art. 123 and compare it with article 13.
Q.7. What is no confidence motion?
PAHUJA LAW ACADEMY
LECTURE NOTE – 1
ORGAN OF GOVERNMENT
Union and State Executive
Union Executive State Executive Governor,
CM & Council of Ministers
& Advocate General of State
President VP PM Attorney General Legislative Assembly
- 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.
- 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.
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.
- The oath of office to the President is administered by the Chief Justice of India and in his absence, the senior most judge of the Supreme Court available.
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
The international treaties and agreements are negotiated and concluded on behalf of the President subject to the approval of the Parliament.
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.
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)
- 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.
- 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:
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.
He is the leader of the majority party in the Lok Sabha. According to Art.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:-
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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 1002), 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).
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.
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.
The Constitution lays down only two qualifications for the appointment of a person as a governor. These are:
- 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.
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:
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.
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 nominates one-sixth of the Members of the state legislative council from amongst persons having special knowledge or practical experience in literature, science, art, cooperative movement and social service.
- 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.
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.
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.
COMPARING PARDONING POWERS OF PRESIDENT AND GOVERNOR
|He can pardon, reprive, respite, remit, suspend or commute the punishment or sentence of any person convicted of any offence against a Central law.||He can pardon, reprieve, respite, remit, suspend or commute the punishment or sentence of any person
convicted of any offence against a state law.
|He can pardon, reprieve, respite, remit, suspend or commute a death sentence. He is the only authority to
pardon a death sentence.
|He cannot pardon a death sentence. Even if a state law prescribes for death sentence, the power to grant pardon lies with the President and not the governor. But, the governor can suspend, remit or commute a death sentence.|
|He can grant pardon, reprieve, respite, suspension, remission or commutation in respect to punishment or sentence by a court-martial (military court).||He does not possess any such power.
- 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 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.
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.
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.
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.
PAHUJA LAW ACADEMY
LECTURE NOTE – 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
- reservation of any bill for the consent of the President
- appointment of the Chairman of the Upper House.
- special address of the governor after general election
- appointment of the Advocate- General.
- The power of the President are
- beyond the Constitution
- in accordance with the Constitution
- in accordance with the Parliament only.
- Supra- Constitutional
- If President wants to tender his resignation before expiry of his normal term he has to address the same to:
- Chief Justice of India
- Prime – Minister
- Vice President
- The salary and allowances of the Governor
- Consolidated Fund of the State
- Consolidated Fund of the India
- Contingency Fund of the India
- (a) & (b) in equal proportion.
- The Comptroller and Auditor General (CAG) is appointed by
- The President
- The Council of Ministers
- The Prime Minister
- The Speaker of the Lok Sabha
- The President of India has no power to remove
- by an order the Chairman or any other member of UPSC only after the report from Supreme Court.
- by an order the Chairman or other members of State Public Service Commission only after the report from Supreme Court.
- Advocate- General of a State
- A judge of Supreme Court in accordance with the procedure prescribed.
- Any charge for impeachment of the President may be preferred.
- only in the House of People
- only in Council of States
- only in joint session of the Parliament
- by either House of Parliament
- The President’s Rule under Article 356 remains valid in the State for the maximum period of
- one year
- two years
- six months
- nine months
PAHUJA LAW ACADEMY
LECTURE NOTE NO.- 3
UNION AND STATE JUDICIARY
- 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.
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.
- 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)].
- 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)
- 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.
- 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.
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
- 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.
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.
- 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)
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.
Oath or Affirmation (Article 219) : A person appointed as a judge of a high court, before entering upon his ofﬁce, has to make and subscribe an oath or affirmation before the governor of the state or some person appointed by him for this purpose.
The Constitution has not fixed the tenure of a judge of a high court. However, it makes the following four provisions in this regard: (Article 217 (1) (a))
- 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 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.
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.
PAHUJA LAW ACADEMY
LECTURE – 4
Parliament and State Legislatures
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.
President is an integral part of the Parliament. Summons and prorogues both the Houses, dissolves the Lok Sabha, addresses both the Houses, issues ordinances.
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.
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.
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
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.
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.
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).
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
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’.
- 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.
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.
- 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.
- 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.
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.
- 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
|Censure Motion||No-Confidence Motion|
|1.||It should state the reasons for its adoption in the Lok Sabha.||1.||It need not state the reasons for its adoption in the Lok Sabha.|
|2.||It can be moved against an individual minister or a group of ministers or the entire council of ministers.||2.||It can be moved against the entire council of ministers only.|
|3.||It is moved for censuring the council of ministers for speciﬁc policies and actions.||3.||It is moved for ascertaining the conﬁdence of Lok Sabha in the council of ministers.|
|4.||If it is passed in the Lok Sabha, the council of ministers need not resign from the office.||4.||If it is passed in the Lok Sabha, the council of ministers must resign from office.|
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.
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.
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
|Public Bill||Private Bill|
|1.||It is introduced in the Parliament by a minister.||It is introduced by any member of Parliament other than a minister.|
|2.||It reflects of the policies of the government (ruling party).||It reflects the stand of opposition party on public matter.|
|3.||It has greater chance to be approved by the Parliament.||It has lesser chance to be approved by the Parliament.|
|4.||Its rejection by the House amounts to the expression of want of parliamentary confidence in the government and may lead to its resignation.||Its rejection by the House has no implication on the parliamentary confidence in the government or its resignation.|
|5.||Its introduction in the House requires seven days’ notice.||Its introduction in the House requires one month’s notice.|
|6.||It is drafted by the concerned department in consultation with the law department.||Its drafting is the responsibility of the member concerned.|
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 as sent by the first house (i.e., without amendments);
- 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.
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
|Ordinary Bill||Money Bill|
|1.||It can be introduced either in the Lok Sabha or the Rajya Sabha.||1.||It can be introduced only in the Lok Sabha and not in the Rajya Sabha.|
|2.||It can be introduced either by a minister or by a private member.||2.||It can be introduced only by a minister.|
|3.||It is introduced without the recommendation of the president.||3.||It can be introduced only on the recommendation of the President.|
|4.||It can be amended or rejected by the Rajya Sabha.||4.||It cannot be amended or rejected by the Rajya Sabha. The Rajya Sabha should return the bill with or without recommendations, which may be accepted or rejected by the Lok Sabha.|
|5.||It Can be detained by the Rajya Sabha tor a maximum period of six months.||5.||It can be detained by the Rajya Sabha for a maximum period of 14 days only.
|6.||It does not require the certification of the Speaker when transmitted to the Rajya Sabha (if it has originated in the Lok Sabha).||6.||It requires the certiﬁcation of the Speaker when transmitted to the Rajya Sabha.|
|7.||It is sent for the President’s assent only after being approved by both the Houses. In case of a deadlock due to disagreement between the two Houses, a joint sitting of both the houses can be summoned by the president to resolve the deadlock.||7.||It is sent for the President’s assent even if it is approved by only Lok Sabha. There is no chance of any disagreement between the two Houses and hence, there is no provision of joint sitting of both the Houses in this regard.|
|8.||Its defeat in the Lok Sabha may lead to the resignation of the government (if it is introduced by a minister).||8.||Its defeat in the Lok Sabha leads to the resignation of the government.|
|9.||It can be rejected, approved, or returned for
reconsideration by the President.
|9.||It can be rejected or approved but cannot be returned for reconsideration by the President.|
- 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 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.
- 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.
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.
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.
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.
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 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.
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 make rules to regulate its own procedure and the conduct of its business and to adjudicate upon such 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.
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.
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-
- if he holds any office of profit under the Government of India or the Government of any State;
- if he is of unsound mind and stands so declared by a competent court;
- if he is an un-discharged 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 or adherence to a foreign State;
- 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.
PAHUJA LAW ACADEMY
LECTURE – 5
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 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.
In 1991, the Supreme Court ruled that the certiorari can be issued even against administrative authorities affecting rights of individuals.
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
- 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:
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).
- 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).
|Article 38||State to secure a social order for the promotion of welfare of the people|
|Article 40||Organisation of village panchayats.|
|To promote cottage industries on an individual or co-operation basis in rural areas|
|Article 44||Uniform civil code for the citizens|
|Provision for early childhood care and education to children below the age of 6 years|
|Promotion of educational and economic interests of scheduled castes, scheduled tribes and other weaker sections|
|Article 50||Separation of judiciary from executive|
|Article 51||Promotion of international peace and security|
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).
- 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.
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 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:
- to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
- to cherish and follow the noble ideals that inspired the national struggle for freedom;
- to uphold and protect the sovereignty, unity and integrity of India;
- to defend the country and render national service when called upon to do so;
- 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;
- to value and preserve the rich heritage of the country’s composite culture;
- to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures;
- to develop scientific temper, humanism and the spirit of inquiry and reform;
- to safeguard public property and to abjure violence;
- 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
- 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.
- 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.
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.