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 MODULE 1

SALIENT FEATURES OF THE CONSTITUTION ARE AS FOLLOWS:

LS PUF

1. Lengthiest constitution in the world: Indian constitution adopted by the constituent

Assembly on November 26, 1949 is the lengthiest constitution originally containing 395
Articles, divided into 22 parts and 9 schedules. It is described as ‘elephant size’ constitution.
We have incorporated 105 Amendments to the constitution. It has been a model, for many
developing countries. Now it has 448 Articles and 12 schedules and 25 parts. The length
of the constitution is because of several factors: -
● It incorporates the experience of all leading constitution.
● It prescribes constitution for the union, states as well as for the local government.
● It incorporates detailed provisions regarding centre – state relations.
● It includes justifiable and non – justifiable rights.
● It contains special provisions to meet regional problems and needs of SC, ST, OBC
and other minorities.

2. Sovereignty resides in the people: The preamble of the constitution declares that the
constitution of India was adopted and enacted by the people of India and they are the
custodians of the republic.

3. Parliamentary form of Government: The constitution of India establishes parliamentary

form of government both at the centre and the states. In a Parliamentary form of government,
the Prime Minister and council of Ministers are responsible for all their actions to the
Parliament, particularly to the Lower house, Loksabha. Parliament keep control on
executives by various means i.e. by asking questions, by no confidence motion etc. Also in
Parliamentary system there are two types of head; one is nominal and one is real. In India
President is nominal and Prime- Minister is real head.

4. Unique blend of Rigidity and Flexibility: Constitutions are classified into rigid and flexible.
A rigid constitution is one that requires a special procedure for its amendment, as for
example, the American Constitution. A flexible constitution is one that can be amended in
the same manner as the ordinary laws are made, as for example, the British Constitution.
The Indian Constitution is a unique example of the combination of rigidity and flexibility.
The Indian Constitution provides for three types of amendments ranging from simple to
most difficult procedures depending on the nature of the amendment.

Fundamental Rights: Part III of the Indian Constitution guarantees six fundamental rights
to all Citizens. Fundamental Rights are one of the important features of the Indian
Constitution. The Constitution contains the basic principle that every individual is entitled to
enjoy certain rights as a human being and the enjoyment of such rights does not depend upon
the will of any majority or minority. No majority has the right to abrogate such rights. The
fundamental rights are meant for promoting the idea of political democracy. They operate as
limitations on the tyranny of the executive and arbitrary laws of the legislature. They are
justiciable in nature, that is, enforceable by the courts for their violation.

DQA IJ
Directive Principles of the state Policy: According to Dr B R Ambedkar, the Directive
Principles of State Policy is a ‘novel feature’ of the Indian Constitution. They are
enumerated in Part IV of the Constitution. The Directive Principles were included in our
Constitution in order to provide social and economic justice to our people. Directive
Principles aim at establishing a welfare state in India where there will be no concentration of
wealth in the hands of a few. They are non-justiciable in nature. In the Minerva Mills case
(1980), the Supreme Court held that ‘the Indian Constitution is founded on the bedrock of the
balance between the Fundamental Rights and the Directive Principles’.

Quasi – federal in nature: The nature of the Indian state is federal, in the sense that the
powers are distributed between the Union and the state. But in times of emergency
Government assumes a unitary character. It is federal because:
- It has two sets of government.
- There is division of powers between the centre and the states.
- There is independent judiciary.
It is unitary because:
- It is described as “union of states”.
- There is single citizenship.
- There is single integrated judicial and administrative system.
- There is integrated machinery for elections, audits.
 - State Governors are appointed and removed by President,
- States depend upon the union’s grant – in – aid.
- During emergency, it can be converted into unitary system.
Hence, the Indian Constitution has been variously described as ‘federal in form but unitary
in spirit’, ‘quasi-federal’ by K C Wheare.

Adult Suffrage: Indian democracy functions on the basis of ‘one person one vote’. Every
citizen of India who is 18 years of age or above is entitled to vote in the elections irrespective
of caste, sex, race, religion or status. The Indian Constitution establishes political equality in
India through the method of universal adult franchise.

Independence of Judiciary: India has a single integrated judicial system. Also, the Indian
Constitution establishes Independent Judiciary by enabling the Indian judiciary to be free
from the influence of the executive and the legislature. The Supreme Court stands as the apex
court of the judicial system. Below the Supreme Court are the High Courts at the state level.
Under a high court, there is a hierarchy of subordinate courts, that is district courts and the
other lower courts. The Supreme Court is a federal court, the highest court of appeal, the
guarantor of the fundamental rights of the citizens and the guardian of the Constitution.
Hence, the Constitution has made various provisions to ensure its independence.

Judicial Review: It means the power of the courts to declare any law passed by the
legislature and any act of executive as void, if it violates any provision of the constitution. It
emphasise supremacy of judiciary.

FSR SSU
Fundamental Duties: The original constitution did not provide for the fundamental duties of
the citizens. Fundamental Duties were added to our Constitution by the 42nd Amendment
Act of 1976 on the recommendation of the Swaran Singh Committee. It lays down a list
of ten Fundamental Duties for all citizens of India under Article 51A. Later, the 86th
Constitutional Amendment Act of 2002 added one more fundamental duty. While the rights
are given as guarantees to the people, the duties are obligations that every citizen is expected
to perform. However, like the Directive Principles of State Policy, the duties are also
non-justiciable in nature. There is a total of 11 Fundamental duties altogether.
Sovereign: India is a free and independent country. India is no more under the domination
of any foreign country, and any external force cannot influence its decisions. India is a
member of the commonwealth Nations. But its membership does not affect the sovereignty of
India.

Republic: It means that the head of the state, the president, will be periodically elected by
the people. Citizens’ partnership in the affairs of the state is ensured.

Secular: The Constitution of India stands for a secular state. Hence, it does not uphold any
particular religion as the official religion of the Indian State. The distinguishing features of a
secular democracy contemplated by the Constitution of India are:
- The State will not identify itself with or be controlled by any religion;
- While the State guarantees to everyone the right to profess whatever religion one
chooses to follow (which includes also the right to be an antagonist or an atheist), it
will not accord preferential treatment to any of them;
- No discrimination will be shown by the State against any person on account of his
religion or faith; and
- The right of every citizen, subject to any general condition, to enter any office under
the state will be equal to that of the fellow citizens. Political equality which entitles
any Indian citizen to seek the highest office under the State is the heart and soul of
secularism as envisaged by Constitution.
The conception aims to establish a secular state. This does not mean that the State in India is
anti-religious. The western concept of secularism connotes a complete separation between
religion and the state (negative concept of secularism). But, the Indian constitution embodies
the positive concept of secularism, i.e., giving equal respect to all religions or protecting all
religions equally. Moreover, the Constitution has also abolished the old system of communal
representation. However, it provides for the temporary reservation of seats for the scheduled
castes and scheduled tribes to ensure adequate representation to them.

Single Citizenship: In a federal state usually, the citizens enjoy double citizenship as is the
case in the USA. In India, there is only single citizenship. It means that every Indian is a
citizen of India, irrespective of the place of his/her residence or place of birth. He/she is not a
citizen of the Constituent State like Jharkhand, Uttaranchal or Chattisgarh to which he/she
may belong but remains a citizen of India. All the citizens of India can secure employment
anywhere in the country and enjoy all the rights equally in all the parts of India. The
Constitution makers deliberately opted for single citizenship to eliminate regionalism and
other disintegrating tendencies. Single citizenship has undoubtedly forged a sense of unity
among the people of India.

Uniformity in Basic Administration: There is uniformity in most important matters of

administration. e.g. single integrated judicial system, uniformity in civil and criminals laws,
All India services.

SEPARATION OF POWERS: also called as system of checks and balances

Rule of Law: According to this axiom, people are ruled by law but not by men, that is, the
basic truism that no man is infallible. The axiom is vital to a democracy. More important is
the meaning that law is the sovereign in democracy. The chief ingredient of law is custom
which is nothing but the habitual practices and beliefs of common people over a long number
of years. In the final analysis, rule of law means the sovereignty of the common man’s
collective wisdom. Apart from this crucial meaning, rule of law means a few more things
like
● There is no room for arbitrariness
● Each individual enjoys some fundamental rights, and
● The highest judiciary is the final authority in maintaining the sanctity of the
law of the land.
The Constitution of India has incorporated this principle in Part III and in order to provide
meaning to Article 14 (all are equal before the law and all enjoy equal protection of
laws), promotion of Lok Adalats and the venture of the Supreme court known as “public
interest litigation” have been implemented. Also, as per today’s law of the land, any litigant
can appeal to the presiding judicial authority to argue the case by himself or seek legal
assistance with the help of the judiciary.

Rule of Law- A V Dicey- Introduction to the Study of the Law of the Constitution(1885)-
three basic principles
(i) The Supremacy of law– Dicey believed that Rule of Law stands for absolute supremacy
of law. No person, irrespective of his position whether he is a common man or government
authority is bound to obey the law. No one should be punished except for the breach of law
and that the alleged offence is proved before the ordinary court following the due procedure.
(ii) Equality before law– It means the equal subjection of all class of people to the law of the
land administered by the ordinary courts. No man is above the law and would be treated
equally in the eyes of law irrespective of their pedestal in life
(iii) The Predominance of Legal Spirit– The phrase legal spirit refers to the spirit of
justice. This concept advocates the principle that law should be according to justice and not
vice-versa. He was against providing rights such as the right to personal liberty, freedom, etc.
in the written constitution of the country. The constitution is not the source but the
consequence of the rights of the individuals thus these rights should be a result of the judicial
decisions.
- The concept of Rule of Law in its most fundamental sense is the foundation upon
which modern democratic society is founded and seeks to establish.
- The principle of Rule of Law vests in a state that is governed by laws and not by the
arbitrary actions of men.
- “Rule of Law symbolizes an enlightened civilized society’s efforts and quest to
combine that degree of liberty without which law is tyranny with that degree of law
without which liberty becomes license
- Rule of Law- different facets: One of which is disputes between citizens shall be
adjudicated by independent and impartial judges; and so will disputes w.r.t the legality
of Government acts.
- Our Constitution has adopted (modified at times to suit our needs) and codified these
propositions of Rule of Law.
- Provisions related to Equality, Justice, Freedoms enshrined in our Constitution all
have the tread of Rule of Law running through them.
- Pratap Singh vs State of Punjab 1964: “The present Constitution of India has its
foundation in the concept of Rule of Law and it enshrines and guarantees the Rule of
Law .”

SEPARATION OF POWERS
The purpose of separation of powers is to prevent abuse of power by a single person or a
group of individuals. It will guard the society against the arbitrary, irrational and tyrannical
powers of the state, safeguard freedom for all and allocate each function to the suitable
organs of the state for effective discharge of their respective duties.
Meaning of Separation of Powers
French Jurist Montesquieu in his book L. Esprit Des Lois (Spirit of Laws) published in
1748, for the first time enunciated the principle of separation of powers. “When the
legislative and executive powers are united in the same person, or in the same body or
Magistrate, there can be no liberty. Again, there is no liberty if the judicial power is not
separated from the Legislative and Executive power.”
Separation of powers divides the mechanism of governance into three branches i.e.
Legislature, Executive and the Judiciary. Although different authors give different definitions,
in general, we can frame three features of this doctrine.
1. Each organ should have different persons in capacity, i.e., a person with a function in
one organ should not be a part of another organ.
2. One organ should not interfere in the functioning of the other organs.
3. One organ should not exercise a function of another organ (they should stick to their
mandate only).
Thus, these broad spheres are determined, but in a complex country like India there often
arises conflict and transgression by one branch over the other.
Significance of the doctrine
Why do we need a separation of powers between the various organs of the State? Whenever
there is a concentration of power in one centre/authority, there is bound to be greater chances
of maladministration, corruption, nepotism and abuse of power. This principle ensures that
autocracy does not creep into a democratic system. It protects citizens from arbitrary rule.
Hence, the importance of the Separation of Powers doctrine can be summed up as follows:
1. Keeps away autocracy
2. Safeguards individual liberty
3. Helps create an efficient administration
4. Judiciary’s independence is maintained
5. Prevents the legislature from enacting arbitrary or unconstitutional laws

No theoretical specificity mandating strict demarcation –but implicitly provisions like Article
50 which points towards this. – Three branches of government have their own separate
spheres of work. But we have in principle adopted this principle.
The Indian Supreme Court in Ram Jawaya Kapur v. State of Punjab, though Mukherjee J.
held as follows: The Indian Constitution has indeed not recognized the doctrine of separation
of powers in its absolute rigidity, but the functions of different parts or branches of the
government have been sufficiently differentiated and consequently it can very well be said
that our Constitution does not contemplate assumption, by one organ or part of the state, of
functions that essentially belong to another.
A more refined and clarified view taken in Ram Jawayas case can be found in Katar Singh v.
State of Punjab, by Ramaswamy J. : It is the basic postulate under the Indian Constitution
that the legal sovereign power has been distributed between the legislature to make the law,
the executive to implement the law and the judiciary to interpret the law within the limits set
down by the Constitution.

Advantages
1. The efficiency of the organs of state increased due to separation of works hence time
consumption decreases. Since the experts will handle the matters of their parts so the
degree of purity and correctness increases.
2. There is the division of work and hence division of skill and labour occurs.
3. Due to division of work there is no overlapping remains in the system and hence
nobody interfere with others working area.
4. Since the overlapping removed then there is no possibility of the competition in
between different organs.

Disadvantages
1. Wrong Reading of British System: Having witnessed the British people enjoying
liberty, Montesquieu wrongly concluded that in Britain there was a separation of
powers. He misread British politics.
2. Not Fully Attainable: This theory is not fully attainable. The executive has some role
in rule-making, and the legislature also performs some judicial functions. For
example, impeachment which is judicial in nature is done by the legislature.
3. Administrative Complications: Separation of powers results in administrative
complications. It becomes difficult to forge cooperation, coordination and harmony
among the organs of government.
 4. Could Lead to Confusion and Deadlock: Separation of powers sometimes leads to
jealousy, suspicion and friction among the organs of government. While producing
disharmony and confusion, it may paralyze the administration.
5. Inequality of Powers: This theory is based on the principle of equality of powers, but
this principle is flawed. In the parliamentary system, the legislature which represents
the people is most powerful while the executive is most powerful in the presidential
system.
6. Could Disturb the Balance of Power: The government, performing various
important functions, has become increasingly powerful. Besides being the
problem-solver and crisis-manager, it is also required to provide welfare for the
people. All this has made the executive very powerful, and has disturbed the balance
among the three organs of government.

CHECKS AND BALANCES

checks and balances, principle of government under which separate branches are empowered
to prevent actions by other branches and are induced to share power. Checks and balances are
applied primarily in constitutional governments. They are of fundamental importance in
tripartite governments, such as that of the United States or India, which separate powers
among legislative, executive, and judicial branches.
Under the principle of checks and balances, each branch of the government shall possess
tools to check and limit the powers of other branches within the government. Normally,
in a parliamentary democracy, the branches of the government are legislation, the executive,
and the judiciary.
A system of checks and balances keeps a government from taking unprecedented and
totalitarian actions. The following points are important to understand the system of checks
and balances.
● It is a horizontal distribution of powers between different organs of the government
● It provides different government bodies to work on the same level
● This system prevents one body of authority from overpowering others
● The system provides methods for different government organs to check each other

On Executive
 ● In the parliament proceedings, the Indian parliamentary democracy provides different
instruments and methods used to hold the government accountable to the
parliament—for example, no-confidence motion, question hour, and censor motion
● The constitution provides for the feature of Judicial Review; according to this,
executive action - like emergency, pardoning can be reviewed

On Legislature
● The constitution prevents the legislators from meddling with the executive role by
providing provisions
● It is done so a conflict of interest may not arise between two essential organs of the
government
● The judiciary can execute their doctrine of judicial review on legislation if they find
them extra-constitutional and out of line with the constitution’s basic features
● The constitution also prevents the legislators from discussing the conducts of the
judges of the High Court and the Supreme Court in the parliament

On Judiciary
● The constitution provides for the impeachment of a sitting judge of the Supreme
Court or a High Court if found guilty of not complying with his responsibilities or any
misconduct
● The appointment of judges and other judicial appointments require the government’s
nod after being approved by the collegium

PREAMBLE OF THE CONSTITUTION

What is a Preamble?
A preamble is an introductory statement in a document that explains the document’s
philosophy and objectives.
In a Constitution, it presents the intention of its framers, the history behind its creation, and
the core values and principles of the nation.
The preamble basically gives idea of the following things/objects:
- Source of the Constitution
- Nature of Indian State
- Statement of its objectives
 - Date of its adoption

History of the Preamble to Indian Constitution:

The ideals behind the Preamble to India’s Constitution were laid down by Jawaharlal
Nehru’s Objectives Resolution, adopted by the Constituent Assembly on January 22,
1947.
Although not enforceable in court, the Preamble states the objectives of the Constitution, and
acts as an aid during the interpretation of Articles when language is found ambiguous.

Components of Preamble:
● It is indicated by the Preamble that the source of authority of the Constitution lies
with the people of India.
● Preamble declares India to be sovereign, socialist, secular, democratic and
republic.
● The objectives stated by the Preamble are to secure justice, liberty, equality to all
citizens and promote fraternity to maintain unity and integrity of the nation.
● The date is mentioned in the preamble when it was adopted i.e. November 26, 1949.

Key words in the Preamble:

● We, the people of India: It indicates the ultimate sovereignty of the people of India.
● Sovereign: The term means that India has its own independent authority and it is
not a dominion of any other external power. In the country, the legislature has the
power to make laws which are subject to certain limitations.
● Socialist: The term means the achievement of socialist ends through democratic
means. It holds faith in a mixed economy where both private and public sectors
co-exist side by side.
○ It was added in the Preamble by 42nd Amendment, 1976.
● Secular: The term means that all the religions in India get equal respect, protection
and support from the state.
○ It was incorporated in the Preamble by 42nd Constitutional Amendment,
1976.
● Democratic: The term implies that the Constitution of India has an established form
of Constitution which gets its authority from the will of the people expressed in an
election.
 ● Republic: The term indicates that the head of the state is elected by the people. In
India, the President of India is the elected head of the state.

Objectives of the Indian Constitution:

The Constitution is the supreme law and it helps to maintain integrity in the society and to
promote unity among the citizens to build a great nation. The main objective of the Indian
Constitution is to promote harmony throughout the nation. The factors which help in
achieving this objective are:
● Justice: It is necessary to maintain order in society that is promised through various
provisions of Fundamental Rights and Directive Principles of State Policy provided
by the Constitution of India. It comprises three elements, which is social, economic,
and political.
○ Social Justice – Social justice means that the Constitution wants to create a
society without discrimination on any grounds like caste, creed, gender,
religion, etc.
○ Economic Justice – Economic Justice means no discrimination can be caused
by people on the basis of their wealth, income, and economic status. Every
person must be paid equally for an equal position and all people must get
opportunities to earn for their living.
○ Political Justice – Political Justice means all the people have an equal, free
and fair right without any discrimination to participate in political
opportunities.
● Equality: The term ‘Equality’ means no section of society has any special privileges
and all the people have given equal opportunities for everything without any
discriminations. Everyone is equal before the law.
● Liberty: The term ‘Liberty’ means freedom for the people to choose their way of life,
have political views and behaviour in society. Liberty does not mean freedom to do
anything, a person can do anything but in the limit set by the law.
● Fraternity: The term ‘Fraternity’ means a feeling of brotherhood and an emotional
attachment with the country and all the people. Fraternity helps to promote dignity
and unity in the nation.

Status of Preamble:
The preamble being part of the Constitution is discussed several times in the Supreme Court.
It can be understood by reading the following two cases.
Berubari Case: It was used as a reference under Article 143(1) of the Constitution
which was on the implementation of the Indo-Pakistan Agreement related to the
Berubari Union and in exchanging the enclaves which were decided for consideration
by the bench consisting of eight judges.
Through the Berubari case, the Court stated that ‘Preamble is the key to open the
mind of the makers’ but it can not be considered as part of the Constitution. Therefore
it is not enforceable in a court of law.
Kesavananda Bharati Case: In this case, for the first time, a bench of 13 judges was
assembled to hear a writ petition. The Court held that:
● The Preamble of the Constitution will now be considered as part of the
Constitution.
● The Preamble is not the supreme power or source of any restriction or
prohibition but it plays an important role in the interpretation of statutes and
provisions of the Constitution.
● So, it can be concluded that preamble is part of the introductory part of the
Constitution.

In the 1995 case of Union Government Vs LIC of India, the Supreme Court has once again
held that Preamble is the integral part of the Constitution but is not directly enforceable in a
court of justice in India.

Amendment of the Preamble:

42nd Amendment Act, 1976: After the judgment of the Kesavanand Bharati case, it was
accepted that the preamble is part of the Constitution.
● As a part of the Constitution, preamble can be amended under Article 368 of
the Constitution, but the basic structure of the preamble can not be amended.
● As of now, the preamble is only amended once through the 42nd Amendment
Act, 1976.
The term ‘Socialist’, ‘Secular’, and ‘Integrity’ were added to the preamble through 42nd
Amendment Act, 1976.
● ‘Socialist’ and ‘Secular’ were added between ‘Sovereign’ and ‘Democratic’.
● ‘Unity of the Nation’ was changed to ‘Unity and Integrity of the Nation’.
 PRESIDENTIAL AND PARLIAMENTARY FORM OF GOVERNMENTS

There are basically two forms of democratic government systems – Presidential and
Parliamentary. India follows a parliamentary form of government modelled on Britain’s. Our
founding fathers had strong reasons for adopting this, as opposed to the presidential system.
Apart from the parliamentary and presidential systems, there can also be a hybrid system
incorporating features of both systems. The chief difference between these systems is the
extent of power separation between the legislative, the executive and the judiciary.
Another major difference between the presidential and parliamentary systems is the
accountability of the executive to the legislature.

Presidential form of government:

A Presidential system is also called a congressional system. It refers to a system of

governance in which the President is the Chief Executive and is elected directly by the
people. The head of the government thus exists separately from the legislature. It is a form of
government where the three branches (legislature, executive and judiciary) exist separately
and cannot dismiss or dissolve the other branch. While the legislature makes the laws, the
President enforces them and it is the courts that are responsible for exercising judicial duties.
The origin of the Presidential form of government can be traced back to medieval England,
France and Scotland, where the executive authority lay with the Monarch or Crown
(King/Queen) and not the estates of the realm (Parliament). This influenced the
constitutional makers of the United States of America, who created the office of President,
for which direct elections were to be held.

Features: The Presidential system of democratic governance has the following features:
1. President does not have nominal powers. He is both the head of the executive and
the head of the state. As the head of the executive, he has a ceremonial position. As
the head of the government, he acts as the chief real executive. Thus, the Presidential
system is characterised by a single executive concept.
2. President is directly elected by the people or the electoral college.
 3. The President cannot be removed, except through an impeachment procedure for a
grave unconstitutional act.
4. The President governs with the help of a small body of people. This is his cabinet.
The cabinet is only an advisory body that consists of non-elected departmental
secretaries, who are selected by the president. It is responsible to the President, and
the departmental secretaries can be removed by him.
5. The President and his cabinet are not answerable to the legislature, nor are they
members of the legislature.
6. The concept of Separation of powers is clearly visible in the Presidential system.
The three branches are completely separated and members of one branch cannot be
the members of the other branch.
7. The President can veto the acts of the legislature. He/She can also grant pardon.

Advantages: The advantages of having a Presidential system:

1. In most Presidential systems, the President is elected directly by the people. This
creates more legitimacy than that of a leader who has been appointed indirectly.
2. Since in a Presidential system the branches of the government work separately, it
becomes easier to maintain the system checks and balances.
3. The President, under this system, is usually less constrained and can take decisions
more independently. Thus, this system allows for quick decision-making. This
becomes very beneficial at the time of crisis.
4. A Presidential government is more stable. This is because the term of the President is
fixed and is not subject to majority support in the legislative. Hence, he/she does not
need to worry about losing the government.
5. Since it is the President who chooses his cabinet and the executive need not be
legislators, the President is able to choose experts in various fields to head relevant
departments in his government. This ensures that only the people who are capable
and knowledgeable form part of the government.
6. Once the election is complete and the President gains power, the whole nation accepts
him/her. Political rivalries are forgotten and people look at problems from a
national view, rather than a party view.
Disadvantages: There are certain disadvantages which come with the Presidential System.
Let’s understand what these are:
 1. The Presidential form of governance is autocratic as it places a lot of power in the
hands of one person, i.e., the President. Also, the President is out of the control of the
legislature.
2. The complete separation between the legislature and executive may lead to conflicts
and a deadlock between the executive and the legislature. The legislature may
refuse to accept the policies of the executive; while the executive may not agree to the
Acts passed by the legislature, and the President may even veto them.
3. This system gives the President the power to choose the people of his choice for his
cabinet to form the government. The President may misuse this power and choose his
relatives, business partners etc, which might affect the political working of the state.
4. It leads to less accountability in the government and may also result in the legislature
and the executive playing the blame game in time of crisis.

Parliamentary form of government

A Parliamentary form of democracy is also known as the Cabinet form of government or

the ‘Responsible Government.’ It refers to a system of governance in which the citizens
elect representatives to the legislative Parliament. This Parliament is responsible to make
the decisions and laws for the state. It is also directly answerable to the people.
As a result of the elections, the party with the greatest representation forms the government.
Its leader becomes the Prime Minister and performs various executive functions along with
the members of Parliament appointed by the Prime Minister to the cabinet.
The parties who lose the elections form the minority and serve as opposition in the
Parliament. These parties challenge the decisions of the party in power. The Prime Minister
may be removed from power in case the members of Parliament lose confidence in him.
Attempts to create a system of Parliamentary democracy were seen in the European
Revolution of 1848 but these did not lead to any consolidated system. Parliamentary
democracy came to be in 1918 and developed throughout the twentieth century.

Features:
1. The head of state and the head of government are different under the
Parliamentary form of government. The head of the state is usually the President or
 monarch. He/she has only ceremonial powers. The head of the government is
generally the Prime Minister, and he/she is vested with real power.
2. It can be either bicameral (with two houses) or unicameral (with one house). A
bicameral system usually consists of a directly elected lower house, which in turn
elects the upper house.
3. The powers of government are not completely separated. The lines between the
legislature and the executive are blurred as the executive forms part of the legislature.
4. This system is also characterized by the majority party rule. But no government can
be a hundred percent majority, and the Parliament also consists of the opposition.
5. The council of ministers, in this system, is collectively responsible to the Parliament.
The lower house of Parliament can even dismiss the ruling government by passing a
no-confidence motion in the house.
6. Most of the time, in this form of government, the cabinet proceedings are kept secret
and are not meant to be divulged to the public.
Advantages: Adopting a Parliamentary system of governance has certain advantages. Let’s
look at these in detail:
1. There is better coordination between the legislature and the executive. This is
because executive is part of the legislature and most members of the lower house
support the government . Thus, in Parliamentary system, there is lesser tendency of
disputes and conflicts, which makes it comparatively easier to pass legislation and
implement it.
2. This type of government is more flexible as, if required, the Prime Minister can be
changed. For instance, in the UK during the Second World War, Prime Minister
Neville Chamberlain was replaced by Winston Churchill.
3. A Parliamentary democracy allows representation of diverse groups. This system
gives opportunities to various diverse ethical, racial, linguistic and ideological groups
to share their views and enable making of better and suitable laws and policies.
4. Since, the executive is responsible to the Parliament, it has the power to keep a
check upon the activities of the executive. Moreover, the members of the Parliament
can move resolutions, discuss matters and ask questions of public interest to put
pressure on the government. This enables responsible governance.
5. Parliamentary system prevents autocracy. This is because the executive is
responsible to the legislature, and it is possible to vote out the Prime Minister through
 a no confidence motion. Thus, power does not get concentrated in the hands of only
one person.
6. In case, the no confidence motion is passed, the leader of the state invites the
opposition to form the government. Thereby, this system provides an alternate
government.

Disadvantages: The Parliamentary system also has certain disadvantages. These are:
1. Because of party fragmentation, the legislators cannot exercise their free will and vote
as per their own understanding and opinions. Rather, they have to follow the party
policy.
2. The system might lead to legislators who intend to enter the executive only. They are
largely unqualified to legislate, which can hamper the working of the government.
3. Since the executive is formed of the members of the winning party, it is not the
experts who head the departments.
4. Since, in the Parliamentary system, tenure of the council of ministers is completely
dependant upon their popularity, there is no fixed tenure. Because of this they often
hesitates to take bold and long-term policy decisions.
5. Such governments might prove to be unstable. This is because the government exists
only as long as they maintain majority support in the house. Many a times, when
coalition parties come into power, the government is short lived and disputes arise.
Because of this, the executive puts all of its focus upon staying in power, rather than
worrying about the welfare of people and state of affairs.

Difference between the Parliamentary and Presidential forms of the Government

Basis Parliamentary Form of Presidential Form of

Government Government

Meaning It is a form of government where It is a system of government in

the legislature and executive are which the three organs of the
closely related to each other. It is government – the executive,
a system in which the citizens judiciary, legislature work
separately. In it, the President is
 elect representatives to the the chief executive and is elected
legislative Parliament. directly by the citizens.

Executive There is dual executive as leader There is a single executive as the

of the state and leader of the leader of the state and the leader of
government are different. the government is the same.

Ministers The ministers belong to the The ministers can be chosen from
ruling party and are Members of outside the legislature, and are
Parliament. No outsider is usually industry experts.
allowed to become a minister.

Accountability The Executive is accountable to The Executive is not accountable

the Legislature. to the Legislature.

Dissolution of The Prime Minister can dissolve The President cannot dissolve the
lower house the lower house. lower house.

Tenure The tenure of the Prime Minister The tenure of the President is
depends upon the majority fixed.
support in the Parliament, and is
thus, not fixed.

Separation of The principle of Separation of The principle of Separation of

Powers powers is not followed strictly. powers is strictly followed.
There is concentration and fusion Powers are divided and the
of powers between the Legislature, the Executive and the
Legislative and the Executive. Judiciary work separately.

Party Discipline Party discipline is stronger and Party discipline is comparatively

the system leans towards unified less and failure to vote with one’s
 action, block voting and distinct party does not threaten the
party platforms. government.

Autocracy This type of government is less This type of government is more

autocratic as immense power is autocratic as immense power is
not given to only one person. concentrated in the hands of the
President.

Conclusion: The system of governance in countries differs depending on whether a country

has a Presidential or Parliamentary system. There are some countries who have adopted a
mixture of both these types as well. These systems have multiple differences based on
separation of powers, accountability, executives etc. Both of these systems come with their
own advantages and disadvantages. A country chooses the system which suits it the most.
The Parliamentary system allows representative governance, which is suitable in a diverse
country like India.

PARLIAMENTARY FORM OF GOVERNMENT ENVISAGED UNDER INDIAN

CONSTITUTION
PARLIAMENTARY FORM INDIA

The parliamentary system of government in the Constitution is as in the UK. Under Article
53(1), the executive power of the Union is vested in the President; but by virtue of Article
74(1) in the exercise of his powers and functions, he acts on the aid and advice of the Council
of Ministers headed by the Prime Minister. The Council of Ministers must accept
responsibility for every executive act and is, therefore, accountable for its actions to
Parliament. This rule is incorporated in Article 75(3) which provides that the Council of
Ministers shall be collectively responsible to the House of the People. Thus, the condition
precedent for the Council of Ministers to function in the constitutional sense is its retaining
the confidence of the House of the People. The President has, therefore, the status of a formal
or constitutional head of the government which is similar to that of the Queen or King in the
UK. Also, wherever the Constitution requires the satisfac- tion of the President for the
exercise of any of his power or function, the satisfac- tion required by the President is not the
personal satisfaction of the President, but the satisfaction of the President in the constitutional
sense in the parliamentary system of government. The same is equally true of the Governor of
a State in the exercise of his powers and functions, except where he is required by or under
the Constitution to exercise his powers and functions at his discretion.

Factors that prompted the framers of the Indian Constitution to adopt the
Parliamentary System
1. It is a system with which the country had grown familiar.
2. The system can provide effective leadership in emergencies.
3. Parliamentary system ensures harmony between the executive and legislature.
4. The system gives more responsibility
5. The assessment of responsibility of the executive is daily and periodic.
6. The daily assessment is done by Members of Parliament through questions,
resolutions, no-confidence motions, adjournment motions, and debates on
addresses.
7. Periodic assessment is done by the electorate at the time of elections which happens
every five years or even earlier)
8. An argument against the Parliamentary System is that the tyranny of the executive can
sometimes approximate an authoritarian rule, where the party in power is having a
clear majority in the legislature.
9. This can happen if there is no opposition party or even if there is an opposition party,
it is not able to play its legitimate role as it ought to.
10. The successful working of a parliamentary system presupposes the existence of a
viable party system in the sense that the various political parties have a strong base
with an ideology, policy, and program.
11. At one time during the 1975-77 Emergency, there appeared to be a serious move to
amend the Constitution to replace the parliamentary sys- tem by Presidential system.
The move was, however, immediately rebuffed pre- sumably by the then Prime
Minister, Mrs Indira Gandhi, who was also alleged to have initially blessed the move.
Since then the form of government has never been a seriously debatable issue. Nor
has there been any constitutional crisis serious enough to require such a debate.
12. In view of multi-party coalition governments at the Centre from 1977 to 1980 1989 to
1991 and 1996 to 2014, leading to frequent no-confidence motions and fall of
governments because of change of loyalty of the coalition partners, resulting in fresh
parliamentary elections, suggestions were made from time to time for a fixed term of
 the Lok Sabha and State Legislative Assemblies as well as for a constructive vote of
no-confidence. But following the National Commission to Review the Working of the
Constitution, which agreed to work on the condition that it will not consider any
change in parliamentary form of government under the Constitution, this issue was
not pursued any further." In spite of the draw. back of multi-party coalitions especially
at the Centre for several years, the par- liamentary form of government seems to be
working well in its place and setting an example of its kind.

The features or principles of parliamentary government in India are:

1. Nominal and Real Executives: The President is the nominal executive (de jure executive
or titular executive) while the Prime Minister is the real executive (de facto executive). Thus,
the President is head of the State, while the Prime Minister is head of the government. Article
74 provides for a council of ministers headed by the Prime Minister to aid and advise the
President in the exercise of his functions. The advice so tendered is binding on the President.
2. Majority Party Rule: The political party which secures majority seats in the Lok Sabha
forms the government. The leader of that party is appointed as the Prime Minister by the
President; other ministers are appointed by the President on the advice of the prime minister.
However, when no single party gets the majority, a coalition of parties may be invited by the
President to form the government.
3. Collective Responsibility: This is the bedrock principle of parliamentary government. The
ministers are collectively responsible to the Parliament in general and to the Lok Sabha in
particular (Article 75). They act as a team, and swim and sink together. The principle of
collective responsibility implies that the Lok Sabha can remove the ministry (i.e.,council of
ministers headed by the prime minister) from office by passing a vote of no confidence.
4. Political Homogeneity: Usually members of the council of ministers belong to the same
political party, and hence they share the same political ideology. In case of coalition
government, the ministers are bound by consensus.
5. Double Membership: The ministers are members of both the legislature and the
executive. This means that a person cannot be a minister without being a member of the
Parliament. The Constitution stipulates that a minister who is not a member of the Parliament
for a period of six consecutive months ceases to be a minister.
6. Leadership of the Prime Minister: The Prime Minister plays the leadership role in this
system of government. He is the leader of council of ministers, leader of the Parliament and
leader of the party in power. In these capacities, he plays a significant and highly crucial role
in the functioning of the government.
7. Dissolution of the Lower House: The lower house of the Parliament (Lok Sabha) can be
dissolved by the President on recommendation of the Prime Minister. In other words, the
prime minister can advise the President to dissolve the Lok Sabha before the expiry of its
term and hold fresh elections. This means that the executive enjoys the right to get the
legislature dissolved in a parliamentary system.
8. Secrecy: The ministers operate on the principle of secrecy of procedure and cannot divulge
information about their proceedings, policies and decisions. They take the oath of secrecy
before entering their office. The oath of secrecy to the ministers is administered by the
President.
9. Close relationship between the legislature and the executive: Here, the Prime Minister
along with the Council of Ministers form the executive and the Parliament is the legislature.
The PM and the ministers are elected from the members of parliament, implying that the
executive emerges out of the legislature.
[Link] Legislature: Most parliamentary democracies follow bicameral legislature.
[Link] fixed tenure: The term of the government depends on its majority support in the lower
house. If the government does not win a vote of no confidence, the council of ministers has to
resign. Elections will be held and a new government is formed.

Merits of Parliamentary System

The advantages of the parliamentary system are as follows:
● Better coordination between the executive and the legislature: the executive is a
part of the legislature both are interdependent at [Link] generally the majority of
the legislature support the government, it is easier to pass laws and implement them.
● Prevents authoritarianism: Since the executive is responsible to the legislature, and
can vote it out in a motion of no confidence, there is no authoritarianism. Also, unlike
the presidential system, power is not concentrated in one hand.
● Responsible government: The members of the legislature can ask questions and
discuss matters of public interest and put pressure on the [Link] ministers
are responsible to the Parliament for all their acts of omission and commission. The
Parliament exercise control over the ministers through various devices like question
hour, discussion, adjournment motion, no confidence motion, etc.
 ● Representing diverse groups: In this system, the parliament offers representation to
diverse groups of the country. This is especially important for a country like India.
● Flexibility: There is flexibility in the system as the PM can be changed easily if
needed. During the Second World War, the British PM Neville Chamberlain was
replaced by Winston Churchill. This is unlike the presidential system where he/she
can be replaced only after the entire term or in case of impeachment/incapacity.
● Ready Alternative Government: In case the ruling party loses its majority, the Head
of the State can invite the opposition party to form the government. This means an
alternative government can be formed without fresh elections.

Demerits of Parliamentary System:

● Unstable Government: The parliamentary system does not provide a stable
government. There is no guarantee that a government can survive its tenure. The
ministers depend on the mercy of the majority legislators for their continuity and
survival in office.
● No Continuity of Policies: The parliamentary system is non-conducive for the
formulation & implementation of long term policies. This is due to the uncertainty of
the tenure of the government. A change in the ruling party is usually followed by
changes in the policies of the government.
● Dictatorship of the Cabinet: When the ruling party enjoys absolute majority in the
Parliament, the cabinet becomes autocratic and exercises nearly unlimited powers.
● Government by Amateurs: The parliamentary system is not conductive to
administrative efficiency as the ministers are not experts in their fields. The prime
minister has a limited choice in the selection of ministers; his choice is restricted to
the members of Parliament alone and does not extend to external talent.
● Against Separation of Power: In the parliamentary system, the legislature and the
executive are together and inseparable. The cabinet acts as the leader of legislature as
well as the executive. Hence, the whole system of government goes against the letter
and spirit of the theory of separation of powers.
● Failure to take a prompt decision: Since there is no fixed tenure enjoyed by the
Council of Ministers, it often hesitates from taking bold and long-term policy
decisions.
● Party politics: Party politics is more evident in the parliamentary system where
partisan interests drive politicians more than national interests
 Essential features of a Federal Constitution and (b) Indian Federalism

Characteristic Features of Federal Government

A federal Constitution has normally the following five characteristics:

(1) Distribution of powers - Distribution of powers between the Central Government and
the governments of the several units forming the federation. Federation means the
distribution of powers of the State among a number of coordinate bodies, each originating in
and controlled by the Constitution.

(2) Supremacy of the Constitution - The Constitution should be binding on the Central
Government and the government of the several units. Neither of the two governments should
be in a position to override the provisions of the Constitution relating to relationship between
as well as division of power between the Centre and the units.

(3) Written Constitution- The Constitution must be a written Constitution. According to A.

V. Dicey to base an arrangement of the kind that exists in a federal system upon
understandings or conventions would result in misunderstandings and disagreements.
(4) Rigidity - Power of amending the Constitution, atleast those provisions which regulate
the status and powers of the Central Government as well as the units, should not be confined
exclusively either to the Central Governments or the governments of the various units.

(5) Authority of Courts - There must be in existence courts of law, which can prevent the
Central Government as well as the governments of various units from encroaching upon each
other's powers. There must be in existence courts of law which can declare laws made by the
Central Government as well as the governments of various units ultra vires on the ground of
excess of power. There must be in existence a final Supreme Court which is not dependent on
the Central Government or the government of various units and which has the authority to
have the last word in matters involving constitutional interpretation.

Distinctive Features of Federal Polity of India

The federal polity which has been established by the Indian Constitution, contains, as
compared to other federal Constitutions, several distinctive features:

(1) Single citizenship - Dual polity with single citizenship. One citizenship for the
whole of India. In United States, for example, each State has he right to grant its
citizens or residents a number of rights, which it may legally deny or grant on more
difficult terms to those who are not its citizens or residents.

(2) Single constituent authority - States in United States have the right to make their
own Constitution. In India no such power is given to the constituent units. As Dr.
Ambedkar says: "The Constitution of the Union and of the States is a single frame
from which neither can get out and within which they must work".

(3) Minimises rigidity and legalism - Federation is said to be a weak form of

government. Tow reasons are given for the weakness of a federal government,
namely, rigidity and legalism. A federal constitution is necessarily a written
constitution and a written constitution is invariably a rigid constitution. It cannot be
modified by the ordinary process of legislation. Legalism is inherent in a federal
polity.

A federal constitution makes a demarcation of powers between the Union and State
Governments. Any invasion of the Union Government in the field assigned to the
States and vice-versa is a breach of the Constitution.
It will be for the judiciary to determine if there has been any breach of the
Constitution. Accordingly, legalism in a federal constitution means necessary
predominance given to the judiciary in making it the arbiter of the validity of laws
enacted by the Union or State Legislatures.

The Indian Constitution adopts the following means to mitigate the rigours of rigidity
and legalism:

It provides a long list of concurrent subjects - The Indian Constitution, like the
Australian Constitution, has made a number of provisions which remain in force until
Parliament by law provides otherwise.

Power is given to Parliament to legislate on state subjects under certain

circumstances: (a) When a subject in the state list becomes a matter of national
importance; (b) when President has proclaimed an emergency; (c) if the States give
consent to such an exercise of power by Union Legislature; (d) when it becomes
necessary to give effect to international agreements etc.

The process for amendment of the Constitution is less rigid as compared to other
constitutions (Basic features of the Constitution have become unamendable through
judicial interpretation)

(4) During emergencies the Constitution can become unitary - In normal times,
the Constitution of India is framed to work as a federal system. However, in times of
war and other national emergencies it is designed to work as if it were unitary.

According to Dr. Ambedkar: "All federal systems, including the American, are placed
in a tight mould of federalism. No matter what the circumstances, it cannot change its
form and shape. It can never be unitary. On the other hand the Draft Constitution can
be both unitary as well as federal according to the requirements of time and
circumstances".

(5) Maintains unity in basic matters - The Constitution of India adopts the
following three means to maintain administrative and legislative unity:

(a) A singe judiciary

(b) Uniformity in fundamental laws, civil and criminal

(c) Common All-India-Services

Review of administrative aspects of Union-States Relations was made by

Administrative Reforms Commission (1966-1970) which made elaborate suggestions
for greater co-operation and harmony between the Union and the States within the
existing framework.

Commission under the Chairmanship of R. S. Sarkaria to "examine and review the

working of the existing arrangments between the Union and the States in regard to
powers, functions and responsibilities in all spheres and to recommend such changes
or other measures as may be appropriate". Sarkaria Commision submitted its report in
1988.

In spite of occasional disagreements between the Union and the States, the national
consensus has never digressed from the existing constitutional arrangements which
provide for a strong Union (Centre) with all possibilities of decentralization. From
time to time various Constitutional Amendments have strengthened the position of the
Union by transferring exclusive state subjects to the concurrent list.

(6) States and Union are not rivals - Each unit is intended to work harmoniously in
its own sphere without impediment by the other, with an overriding power of the
Union where it is necessary in public interest.

The 73rd and 74th Amendments to the Constitution of India (in 1992) have created a
third tier of local governments i.e., panchayats and municipalities. These amendments
have no impact on Centre-State relations, but they encourage federal tendencies at the
local level

In the context of Article 356, through certain landmark judicial pronouncements, the
Supreme Court of India has emphasized the federal character of the Indian
Constitution and has imposed various procedural restraints on the exercise of power
by the Union under Article 356. [Read, S.R. Bommai v. Union of India, (1994) 3
SCC 1; Rameshwar Prasad (6) v. Union of India, (2006) 2 SCC 1].

In certain other judgments in the context of other provisions of the Constitution, the
judiciary has strengthened the position of the States vis-a-vis the Union [Read,
Hoechst Pharmaceuticals v. State of Bihar, (1983) 4 SCC 45; Vijay Kumar Sharma v.
 State of Karnataka, (1990) 2 SCC 562; Rishikesh v. Salma Begum, (1995) 4 SCC
718; NDMC v. state of Punjab, (1997) 7 SCC 339. State of West Bengal v. Committee
for Protection of Democratic Rights, (2010) 3 SCC 571.

Thus, they conclude that the Indian Constitution does not endow Federal principle in a strict
sense.

In the following matters the Constitution contains a modification of the strict application of
the federal principle:

Article 249 - Power of Parliament to legislate w.r.t. A matter in the State List in the National
Interest.

• If the upper House of Parliament (Council of States) passes a resolution, supported by not
less than two-thirds of the members present and voting, that it is necessary or expedient in the
national interest that Parliament should make laws with respect to any matter enumerated in
the State List, it would be competent for Parliament to make laws for the States with respect
to that matter to be operative for such period, not exceeding one year, as may be specified in
the resolution.

The operation of such a legislation can be extended for additional periods of one year at a
time by the resolutions of the Rajya Sabha passed in the same manner as the first resolution.

Articles 352, 353, 354 - Emergency Provisions where the Federal principle is not strictly
applied

• During a period of emergency, the Union Parliament can make laws in relation to the
matters in the State List, the Union can give directions to the States as to how they should
exercise their executive authority in matters which are within their charge, the Union can
empower the officers and authorities of the Union to executive matters in the State List and
the Union can suspend the financial provisions of the Constitution.

Article 358 - Suspension of provisions of art. 19 during emergencies

Article 359 - Suspension of fundamental rights except art. 20 and art. 21

Article 356- State Emergency

If the President who is the head of the Union executive, is satisfied that the government of a
State cannot be carried on in accordance with the provisions of the Constitution, he can issue
a proclamation to that effect. He can then assume all the functions of the government of the
State, including the powers of the Governor. The only exception is that he cannot assume any
of the powers vested in or exercisable by the High Court. By the same proclamation, the
President can authorize Parliament to exercise the powers of the State Legislature.

Article 357 - Exercise of Legislative Powers under proclamation issued under Article 356.
(President exercises legislative powers during emergency)

Article 360 - Financial Emergency

If the President is satisfied that a situation has arisen which threatens the financial stability or
credit of India or any of its units, he can declare a financial emergency. In such an event, he
can issue necessary directions, including orders for the reduction of salaries and allowances
of public servants belonging to the Union and the States. All money Bills, passed by the State
Legislatures during the period of financial emergency are subject to the control of the Union.

Article 257- Control of Union over States in certain cases.

• The Union is empowered to issue administrative directions to the States in relation to

certain matters. The directions so issued are binding upon the States. The Constitution
provides adequate means for securing compliance with the directions issued by the Union to
the States.

Article 365 - Effect of failure to comply with or to give effect to directions given by the
Union.

Article 3 - Formation of new States and alteration of territory.

Parliament can by unilateral action increase or diminish the area of any State or alter the
boundaries of any State or alter the name of any State. Unlike other federal constitutions, the
emphasis on the territorial integrity of the constituent units is absent in the Indian
Constitution.

Articles 200, 201, 288(2) and 304

Laws passed by the State Legislature may be reserved for the consideration of the President
by the Governor. Some of the legislations must be specifically reserved. Some legislations
cannot be even introduced or moved in the State Legislature without the prior sanction of the
President.

Articles 155, 156 and 163. (w.r.t. Governor- dominance of Center)

Governors of the States are appointed by the President. They hold their office during the
pleasure of the President.

Professor K. C. Wheare is of the view that the Indian Constitution establishes a system of
government which is at the most quasi-federal. According to him it provides for a unitary
state with subsidiary federal features rather than a federal state with subsidiary unitary
features.

A similar view has been taken by the Supreme Court of India in

State of West Bengal v. Union of India, AIR 1963 SC 1241

State of Rajasthan v. Union of India, (1977) 3 SCC 592

State of Karnataka v. Union of India, (1977) 4 SCC 608

Professor V. N. Shukla is of the view that the nature of Indian Constitution is federal and that
none of the terms of the Constitution violate the essentials of a federal polity.

Professor P. K. Tripathi in an article published in Journal of Bar Council of India [(1974) 3

Journal of Bar Council of India 251] expresses the view that the Constitution of India is not
at all federal.

Professor M. P. Singh, the revising editor of V.N. Shukla's Constitution of India does not
consider the Indian Constitution to be federal in the sense in which the known federal
constitutions are. Professor Singh is of the view that the Indian Constitution has some federal
features but it does not accord with any established model of federalism.

● The Indian Constitution is heavily biased towards the Union.

● This bias was necessitated by historical reasons and political expediency.
● Centre-State relations in a federation are determined by the conditions and
circumstances which existed at the time of framing of the Constitution. This is the
reason why no two patterns of distribution of power in federations look alike.
 ● In the Indian Constitution there is clear distribution of powers between the Union and
the States and notwithstanding the pre- eminence of the Union, the States have been
assigned exclusive jurisdiction which gives them an identity and an independent and
viable status.
● The centralizing theme which runs through the entire Constitution of India is a theme
noticeable in other federations as well.
● This shift towards centralization is indicative of the transformations in the traditional
concept of federation.

How India is quasi federal in nature:

● Division of power between the central and state government but the central
government has been given more power than the state government.
● Parliament can override the laws which are passed by the states for the reason of
national interest.
● Residual powers are vested with the central government.
● Major taxation powers are also vested with the central government.
● Parliament does not represent the states equally, however, in a pure federal
government the upper house of the legislature has equal representation from the
constituting states. But in our Rajya Sabha, the states do not have equal
representation. The populous state has more representatives in the Rajya Sabha that
the less populous states.
● In India, citizens are allotted single citizenship which is not a feature of pure federal
government. As in true federal nation, citizens are allotted dual citizenship. First, they
are the citizens of their provinces then they are the citizens of their nation.

POWER TO CEDE INDIAN TERRITORY (Article 1 to 4)

1. Name and territory of the Union.—(1) India, that is Bharat, shall be a Union of States. 1
[(2) The States and the territories thereof shall be as specified in the First Schedule.] (3) The
territory of India shall comprise— (a) the territories of the States; 2 [(b) the Union territories
specified in the First Schedule; and] (c) such other territories as may be acquired.
 ● Article 1 of the Indian Constitution states, ‘India, that is Bharat, shall be a union of
states’. this refers type of administration at that moment- in the past many princely
states came together to form as india.
● is it open for them to opt out from the union? NO -
● the article 1 - gives name of the country - it is a union of state
● second clause - The States and the territories thereof shall be as specified in the First
Schedule. - ' article 1 to 4 makes changes to schedules 1 to 2 .
● we have pondicherry - which we acquired from france - this situation falls under sub
clause - c - the other territories acquired
● India has a total of 8 Union Territories and 28 states.
● This is not a agreement to come together

Acquired:
[Link] –acquired by a Treaty of Cession from France- then governed as an
‘acquired territory’ from June 9, 1952 to October 2, 1954 –then merged with West Bengal .
[Link], Daman and Diu, acquired from the Portuguese by annexation, were being
administered since December 20, 1961 as ‘acquired territory’ until they were incorporated as
Union Territories from March 3, 1962
3. The French Settlement of Pondicherry (together with Karaikal, Mahe and Yanam),
which was ceded to India by the French Government in 1954- administered since December
28, 1962 as ‘acquired territory’- Constituted as a Union Territory by the Constitution (14th
Amendment ) Act, 1962.

Modes of Acquisition of Territory: COPS

● Cession: Territory ceded by one State to another by voluntary arrangement , such as
sale, gift, exchange or treaty. No cession of Indian territory can take place without a
constitutional amendment. Chandernagore; Pondicherry
● Occupation: Appropriation by one State of territory not belonging to any civilised
State.
● Prescription: Title top a territory may be acquired by long possession. Possible only
if territory was lying derelict.
● Subjugation: Military conquest followed by annexation Goa, Daman& Diu
Article 2. Admission or establishment of new States.—Parliament may by law admit into
the Union, or establish, new States on such terms and conditions as it thinks fit.
2A. [Sikkim to be associated with the Union.]Omitted by the Constitution (Thirty-sixth
Amendment) Act, 1975, s. 5 (w.e.f. 26-4-1975).

Article 3. Formation of new States and alteration of areas, boundaries or names of

existing States.— Parliament may by law—
(a) form a new State by separation of territory from any State or by uniting two or more
States or parts of States or by uniting any territory to a part of any State;
(b) increase the area of any State;
(c) diminish the area of any State;
(d) alter the boundaries of any State;
(e) alter the name of any State

Article 4 - Laws made under articles 2 and 3 to provide for the amendment of the First
and the Fourth Schedules and supplemental, incidental and consequential matters.—
(1) Any law referred to in article 2 or article 3 shall contain such provisions for the
amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect
to the provisions of the law and may also contain such supplemental, incidental and
consequential provisions (including provisions as to representation in Parliament and in the
Legislature or Legislatures of the State or States affected by such law) as Parliament may
deem necessary.
(2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the
purposes of article 368.
● This article specifies that the laws provided in article 2 and 3,
admission/establishment of new states and alteration of names, areas and boundaries
etc. of established states, are not to be considered amendments of the Constitution
under article 368.
● It means these can be passed without resorting to any special procedure and by a
simple majority.
 CITIZENSHIP
The Constitution of India does not define the term ‘citizen’. Citizenship is listed in the Union
List under the Constitution and thus is under the exclusive jurisdiction of Parliament. The
Conferment of a person as a citizen of India is governed under Articles 5 to 11 by Part II of
the Constitution of India.

Acquiring Citizenship by Domicile [Article 5] :

At the commencement, all those born and domiciled in India were given citizenship.
Even those who were domiciled and not born in India, but either of whose parents were
born in India were considered as citizens.
Anyone who had been an ordinary resident for more than five years was entitled to apply for
citizenship preceding such commencement.
In Pradeep Jain v. Union of India, the Supreme Court has held that in India, Article 5
recognizes only one domicile viz., domicile of India. It does not recognize the notion of State
domicile.

Citizenship of Migrants to India from Pakistan [Article 6]: Since Independence was
preceded by partition and migration, Article 6 laid down that anyone who migrated to India
before 19th July 1949, would automatically become an Indian citizen if either of his/her
parents or grandparents was born in India. But those who entered into India after this, have to
register themselves.

Citizenship of Migrants of Pakistan [Article 7]: If a person has migrated to Pakistan after
1st March, 1947, he/she shall not be considered as a citizen of India. An exception is made
in favour of a person who has returned to India on the basis of permit for resettlement in
India.
In Bhawanrao Khan v. Union of India, the Supreme Court held that “a foreign lady cannot
claim Indian citizenship merely on the ground of long stay and inclusion of her name in the
voter’s list”.

Citizenship of Persons of Indian Origin residing outside India [Article 8]: If a person is
residing outside India but either of the parents or grandparents have taken birth in India and if
the person is registered as a citizen of India by the Diplomatic or Consular representative
of India, shall be considered as a citizen of India.

Persons voluntarily acquiring Citizenship of a Foreign State not to be Citizens of India

[Article 9]: If a person has voluntarily adopted the citizenship of any Foreign State, then
he/she won’t be considered as a citizen of India.
In State of U.P. v. Rehmatullah , the Supreme Court held that the Central Government is
authorized to take action against people who have acquired the foreign citizenship and have
lost the citizenship of India, but they are still residing in the country.

Continuance of the Rights of Citizenship [Article 10]: Any person who is deemed to be a
citizen of India under any of the foregoing provisions shall continue to be a citizen of India
subject to the provisions of any law that may be made by Parliament.
In Ebrahim Wazir v. State of Bombay , the constitutional validity of Influx from Pakistan
Control Act, 1949 was put forward. The Supreme Court held that Section 7 of this Act was
ultra vires of Parliament because to allow the forcible removal of an Indian citizen from India
would be tantamount to destroy the right of citizenship conferred by Part II of the
Constitution.

Parliament to regulate the Rights of Citizenship by Law [Article 11]The Parliament has
the right to make any provision with regard to the acquisition and termination of citizenship
and any other matter relating to citizenship.

MODULE II

RELATIONS BETWEEN THE UNION AND STATE

LEGISLATIVE RELATIONS (Chapter-I)

Legislative powers in a federal or quasi-federal constitution are divided between the Union
and the States. The division exists both in respect of territory and topics of legislation.

245. Extent of laws made by Parliament and by the Legislatures of States

(1) Subject to the provisions of this Constitution, Parliament may make laws for the whole
or any part of the territory of India, and the Legislature of a State may make laws for
the whole or any part of the State
(2) No law made by Parliament shall be deemed to be invalid on the ground that it would
have extra territorial operation

● Article 245 of the Constitution of India defines the ambit of territorial limits of the
legislative powers vested in Parliament and State Legislatures.
● Article 245 (1) states that the laws of Parliament may apply or extend to the whole or
any part of the territory of India while the laws of a State Legislature may apply or
extend to the whole or any part of that State.
● By virtue of the opening words of Article 245 (1) the application or extent of laws of
Parliament as well as State Legislature are subject to the provisions of the
Constitution.
● According to Article 245 (2) a law passed by Parliament shall not be deemed to be
invalid on the ground that it has extra- territorial application. The power to make laws
having extra-territorial application is conferred only on Parliament and not on the
State Legislature.
● An Act of a State Legislature, if it gives extra-territorial operation to its provisions,
can successfully be challenged in the court, unless the extra-territorial application can
be sustained on the ground of territorial nexus. A State Law is not invalid so long as
there is a sufficient nexus or connection between the State and the subject-matter of
the law.
● Although the object to which the State Law applies may not be physically be located
within the territorial limits of a State, yet the State law will be valid if there exists a
connection between the State and the object.
● Sufficiency of territorial connection involves a consideration of two elements:
(a) the connection must be real and not illusory and
(b) the liability sought to be imposed must be pertinent to that connection.
● Constitution of India in making distribution of legislative powers between Union and
the States, follows the Government of India Act, 1935.

TISCO Ltd v. State of Bihar, AIR 1958 SC 452 - The appellant company was the owner of
certain mines in Bihar from where it extracted iron ore which it utilised in its factory at
Jamshedpur for making iron and steel. Under Bengal Cess Act, 1880 all immovable property
situated in any part of the State of Bihar was liable to payment of local cess which was to be
assessed on the annual net profits from them. The appellant claimed that it was not liable to
the levy of cess under the Act because it did not sell any ore as such and could not therefore
be treated as having made "any profit" from the mines within the meaning of the Act. The
question was whether "Profit" from the mine when the ore extracted was not sold by it as
such but was utilized by [Link] court held there was sufficient territorial nexus and
upheld the Act as [Link] there is sufficient nexus between the law and the object
sought to be taxed will depend upon the facts and circumstances of a particular case.

State of Bombay v. R.M.D Chamarbaugwala, AIR 1957 SC 699 - In the R.M.D.C. case, the
Bombay Legislature passed the Bombay Lotteries and Price Competitions Control and Tax
Act, 1948, which imposed tax on price competitions carrying on business in the State. The
question for decision before the Supreme Court was whether the respondent, the organiser of
the competition, who was outside the State of Bombay, could be validly taxed under the Act.
In other words, the standing invitations, the filling up of the forms and the payment of money
took place within the State of Bombay. In these circumstances, it was held that there existed
a sufficient territorial nexus to enable the Bombay Legislature to tax the respondent
who was residing out of state.

State of Bihar v. Charusila Dasi, AIR 1959 SC 1002 - The doctrine of territorial nexus is not
confined to taxing statutes alone. In State of Bihar v. Charusila Dasi18, it has been held that
a State Legislature has the power to legislate with respect to charitable and religious
trusts situated within its territory even though any part of the trust property, small or
large, is situated in another State. The trust being situated in a particular State, the State has
legislative power over it and also over its trustees or their servants and agents who must be in
that State to administer the trust.

● Article 246 defines the respective jurisdiction of the Union and the State Legislatures
as regards subjects or topics of legislation.
● The Constitution of India enumerates various items of legislation in three lists - List I
i.e., Union List, List II I.e., State List and List III i.e., Concurrent List.
● Parliament has exclusive power of legislation with respect to the items in Union List
 ● State Legislatures have exclusive powers of legislation with respect to the items in the
State List .
● Both Parliament and State Legislatures may make laws with respect to the items in the
Concurrent List. The three Lists do not exhaust all legislative subjects.

Article 248 - Residuary powers of legislation

(1) Parliament has exclusive power to make any law with respect to any matter not
enumerated in the Concurrent List or State List
(2) Such power shall include the power of making any law imposing a tax not mentioned
in either of those Lists
● Entry 97 of List 1 - 97. Any other matter not enumerated in List II or List III
including any tax not mentioned in either of those Lists.

Articles 119, 209, 246-A, 262

● [Link] authorised Parliament to make special rules of procedure in relation to any
financial matters. In case of any inconsistency with the standard rules of procedure
made under Draft Article 98 (Article 118), the special rules would prevail.
● 209. .It authorised state legislature to make special rules of procedure in relation to
any financial matters. In case of any inconsistency with the standard rules of
procedure made under Draft Article 98 (Article 118), the special rules would prevail.
● 246A. (1) Notwithstanding anything contained in articles 246 and 254, Parliament,
and, subject to clause (2), the Legislature of every State, have power to make laws
with respect to goods and services tax imposed by the Union or by such State.
● 262. Adjudication of disputes relating to waters of inter State rivers or river
valleys
(1) Parliament may by law provide for the adjudication of any dispute or complaint
with respect to the use, distribution or control of the waters of, or in, any inter State
river or river valley
(2) Notwithstanding anything in this Constitution, Parliament may by law provide that
neither the Supreme Court nor any other court shall exercise jurisdiction in respect of
any such dispute or complaint as is referred to in clause (1)

Principles of Interpretation
1. Plenary (absolute) power of the legislature - Unless the Constitution expressly
prohibits legislation on a subject either absolutely or conditionally, the power of a
legislature to enact legislation within its legislative competence is plenary.
- Once the topic of a legislation is comprised within any of the entries in any of
the three Legislative Lists, any limitation on such power must be found either
in that entry or in any other provision of the Constitution.
- Eg: entry 44 of Union list does not include universities , Power of Parliament
to legislate with respect to acquisition of property in Entry 42 of List Ill is,
subject to the provisions of the Constitution.
- State of West Bengal v. Union of India, AIR 1963 SC 1241- Supreme Court
upheld the constitutionality of Coal Bearing Areas (Acquisition and
Development) Act, 1957 which authorized the Union Government to
acquire land and rights in or over land which is vested in a State.
According to Chief Justice Sinha, the power of the Union in respect of
property situated in the States, even if the States are regarded the Union as
sovereign, remains unrestricted. No positive interdict against the exercise of
power by virtue of Entry 42 of List Ill can be located in the Constitution of
India.
- State of Karnataka v. Union of India, (1977) 4 SCC 608 Central Government's
power to appoint a Commission of Enquiry against the Chief Minister of a
State under section 3 (1) of the Commission of Enquiry Act, 1952 was upheld
by the Supreme Court disregarding the claim of sovereignty and autonomy by
the State of Karnataka (based on federalism). Parliament's power to enact the
Act was upheld under Entries 94 -inquiry and 97 - anything not in list II and
list III of List I, Entry 45 of List III - inquiry and Article 248.

2. Predominance of Union Power - Opening words of Article 246 (1) and 246
(3)-notwithstanding anything in the clause (2) n (3), parliament has exclusive power
to make laws regarding list I.
- If there is an overlapping between List I and List II it is the Union Legislature
which will be competent to legislate.
- If there is an overlapping between List I and List III, it is List I that shall
prevail.
 - Power of Union Legislature shall prevail in a case of conflict between List II
and List III.

3. Avoidance of confict - Harmonious construction - Widest amplitude should be

given to the language of the entries.
- Some of the entries in the different Legislative Lists may overlap and
sometimes may appear to be in direct conflict with each other. It is then the
duty of the courts to reconcile the entries and bring about harmony between
them.
- Courts will strive to arrive at a reasonable and practical construction of the
language of the sections so as to reconcile the respective powers they contain
and give effect to all of them.
- It is only when such reconciliation proves impossible should the
overriding power of the Union Legislature operate and prevail.
- Gujarat University v. Krishna Ranganath Mudholkar, AIR 1963 SC 703 -
Whether the Gujarat State Legislature was competent to enact the Gujarat
University Act, 1949 and statute made thereunder which prescribed an
exclusive medium in which instruction was to be imparted in the State's
universities. Item 11 of List II (Now item 25 of List III) [Education], Item 66
of List I [Coordination and determination of standards in institutions for
higher education or research and scientific and technical institutions]
Invalidated the statutes - Thus to the extent of overlapping the power conferred
by Item 66 of List I must prevail over the power of the State Legislature under
Item 11 of List II insofar as the medium of instruction is a necessary incident
of the power under Entry 66 of List I.
D.A. V. College v. State of Punjab, (171) 2 SCC 261- Constitutional validity of
the provisions of Punjab University Act, 1961 prescribing Punjabi as the sole
medium of instruction and examination in all affiliated colleges of the
university was challenged as the power in that regard was vested in the
Parliament under Entry 66 of List I. The Supreme Court held that no State had
the legislative competence to prescribe any particular medium of instruction in
respect of higher education if it interferes with the power of Parliament under
Entry 66 of List I.
 - State of A.P. v. Lavu Narendranath, (1971) 1 SCC 607 - On the other hand, in
State of A.P. v. Lavu Narendranath20, the Supreme Court held that Entry 66 of
List I has no relation to a test prescribed by the State Government for selecting
a limited number of students out of a large number of students applying for
admission to a particular course of study in a university or an institution for
higher education

4. Doctrine of pith and substance - Doctrine of pith and substance is applied when the
legislative competence of a legislature with regard to a particular enactment is
challenged with reference to the entries in different Legislative Lists because a law
dealing with a subject in one List within the competence of the legislature concerned
is also touching on a subject in another List not within the competence of that
legislature.
- In such a case, what has to be ascertained is the pith and substance of the
enactment- the true character and nature of the legislation.
- If, on examination of a statute, it is found that the legislation is in substance on
a matter assigned to the legislature enacting that statute, then it must be held
valid in its entirety even though it may incidentally trench upon matters
beyond its competence.
- The subject matters in the different Lists are bound to overlap and therefore
Incidental encroachments shall take place.
- In such cases the question to be asked is what in pith and substance is the
effect of the enactment of which complaint is made and In what List is its true
nature and character to be found.
- In ascertaining the pith and substance of an impugned legislation, one must
have regard to the enactment as a whole, as well as to its object and to the
scope and effect of its provisions.
- The doctrine of pith and substance also applies even when the Parliament and
the State Legislatures legislate in the same List Le., the Concurrent List with
respect to different Entries. [Vijay Kumar Sharma v. State of Karnataka,
(1990) 2 SCC 562).
- The doctrine of pith and substance is relevant for determining whether a law
of Parliament and a law of the State Legislature are on the same subject-matter
in the Concurrent List or whether they pertain to different subject-matters. If
 the pith and substance of the two laws is the same then it becomes necessary
to apply Article 254 (1)- union law prevails.
- State of Rajasthan v. G. Chawla, AIR 1959 SC 1959 State Legislature enacted
a law restricting the use of sound amplifiers. Mr. Chawla violated the
provision of the relevant law - was prosecuted. Lower Court convicted Mr.
Chawla. Judicial Commissioner held the Act to be invalid and quashed his
conviction. Appeal to the Supreme Court. State-Entry 6 of List II - Public
health and sanitation". Respondent - Impugned law fell under Entry 32 of List
1 - "posts, telegraphs, telephones, wireless, broadcasting and other like forms
of communication". Even though the amplifier is an apparatus for
broadcasting or communication, the Supreme Court held that the impugned
legislation, in pith and substance fell within Entry 6 of List II.
- .D. N. Banerji v. P. R. Mukherjee, 1953 SCR 302 - Industrial Disputes Act,
1947 which was a Central Act, insofar as it applied to municipalities was
challenged on the ground that it related to a State subject l.e., local
government. The Court held that in pith and substance the impugned Act fell
within the scope of Entry 22 of List III [Trade Unions; industrial and labour
disputes] and not Entry 5 of List II [Local government, that is to say, the
constitution and powers of municipal corporations, Improvement trusts,
district boards, mining settlement authorities and other local authorities for the
purpose of local self government or village administration]
- Shri Ramtanu Co-operative Housing Society Limited v. State of Maharashtra,
(170) 3 SCC 323Maharashtra Industrial Development Act. Entry 24 of List II
[Industries subject to the provisions of Entries 7 and 52 of List 1]. Entry 7 of
List I [Industries declared by Parliament by law to be necessary for the
purpose of defence or for the prosecution of war]. Entry 52 of List 1
[Industries, the control of which by the Union is declared by Parliament by
law to be expedient in the public interest]
- Observation of Chief Justice Latham in Bank of New South Wales v.
Commonwealth, (1948) 76 CLR 1 (Australia) - "The power to make laws with
respect to a subject-matter is a power to make laws which in reality and
substance are laws upon that subject-matter. It is not enough that a law should
refer to the subject-matter or apply to that subject-matter: for example, income
tax laws apply to clergymen and hotel-keepers as members of the public; but
 no one would describe an income tax law as being, for that reason, a law with
respect to clergymen or hotelkeepers. Building regulations apply to buildings
erected for or by banks; but such regulations could not properly be described
as laws with respect to banks or banking"

5. Colourable Legislation - If the Constitution distributes legislative powers amongst

different bodies, which have to act within their respective spheres marked out by
specific legislative entries, or if there are limitations on the legislative authority in the
shape of fundamental rights, questions do arise whether the legislature in a particular
case has or has not, in respect of the subject-matter of the law or in the method of
enacting it, transgressed the limits of its constitutional powers.
- Such transgression may be latent, manifest or direct, but it may also be
disguised, covert and indirect and it is in the latter scenario that the expression
'colourable legislation' has been employed in judicial pronouncements.
- The idea conveyed by the expression 'colourable legislation is that although a
legislature in passing a statute purports to act within the limits of its powers,
yet in substance and in reality it transgresses those powers, the transgression
being veiled by what appears on proper examination to be a mere pretence or
disguise.
- It is the substance of the Act that matters and not the form or outward
appearance and if the subject matter in essence is something which is beyond
the powers of that legislature to legislate upon, the form in which the law is
clothed would not save it from condemnation.
- One cannot do indirectly what he cannot do directly.
- Naga People’s Movement of Human Rights v. UoI (1998) - The validity of the
Armed Forces (Special Powers) Act, 1958 (as amended) (AFSPA) enacted by
Parliament and the Assam Disturbed Areas Act, 1955 enacted by the State
Legislature of Assam, were raised before a Constitution Bench of 5-Judges.
The Court delivered a unanimous decision and upheld the validity of both
AFSPA and the Assam Act. Parliament was competent to enact this Act in
1958 in exercise of its legislative power under Entry 1 of the Union List. Entry
2 of the Union List and Article 248 read with Entry 97 of the Union List and,
after the Forty-second Amendment to the Constitution, the legislative power to
enact the said legislation is expressly conferred under Entry 2-A of the Union
 List and that it cannot be regarded as a law falling under Entry 1 of the State
List.

The Constitution of India authorizes both Parliament and State Legislatures to legislate
concurrently with respect to the subjects enumerated in the Concurrent List.
Article 254 provides for the resolution of conflict between a Central and a State Law with
respect to a matter in the Concurrent List.
Article 254 is more or less on the same lines as Section 107 of Government of India Act,
1935.
Article 254 (1) enacts the normal rule that in the event of a conflict between a Union and a
State law, the Union law will prevail over the State law.
If any provision of a law made by parliament which parliament is competent to enact or to
any provision of any existing law with respect to one of the matters enumerated in the
concurrent list, then the law made by parliament whether passed before or after the law made
by such state or as the case may be the existing law shall prevail and the law made by the
state legislature shall to the extent of repugnancy be void.
The time of making either law is irrelevant, if the two laws are repugnant with each other,
whether the law of Parliament is made before or after the law of the State, the law made by
Parliament shall prevail to the exclusion of the law made by the State Legislature.
The expression 'existing law' in Article 254 means a law made before the commencement of
the Constitution by any legislature, authority or person having power to make such law.
For instance, subjects like marriage and divorce, transfer of property other than agricultural
land, criminal law, civil procedure, contracts and evidence are included in the Concurrent
List. Laws on these matters, which were made before the commencement of the Constitution,
will be ‘existing laws' within the meaning of Article 254.

Mangtulal v, Radha Shyam, AIR 1953 Pat 14. - In 1947, the Bihar Buildings (Lease, Rent and
Eviction) Control Act, 1947 was passed for a certain length of time. In 1951, the Bihar
Legislature extended the life of the Act till 1955. Section 11 of the Act restricted the right of
the landlords to eject tenants which they had under the Transter of Propeny Act, 1882. The
subject of •transfer of property- is in the concurrent list and the Transfer of Property Act was
an existing law on the subject. The Court held section 11 of Bihar (Lease, Rent and Eviction)
Control Act. 1947 invalid for being repugnant to the provisions of the Transfer of Property
Act which was an existing law on the subject.
Hoechst Pharmaceuticals Ltd. V. State of Bihar. (1983) 4 SCC 45)
"The question of repugnancy under Article 254 (1) between a law made by Parliament and a
law made by the State Legislature arises only in case both the legislations occupy the same
field with respect to the matters enumerated in the Concurrent List and there IS a direct
conflict between the two laws.......Article 254 (1) has no application to cases of repugnancy
due to overlappng found between List II on the one hand and List I and List Ill on the other. If
such overlapping exists in any particular case, the State law Will be ultra vires because of the
non-obstante clause in Article 246 (1) read With the opening words 'subject to' in Article 246
(3). In such a case. the State law Will fail not because of repugnance to the Union law but due
to want of legislative competence........” The Supreme Court has also clarified that Article 254
applies only when the law of Parliament or the existing law and the law of the State
Legislature are with respect to the same matter or entry in the Concurrent List

Article 254 (2) enacts an exception to the rule laid down in Article 254 (1). Where a State
Law with respect to one of the matters enumerated in the Concurrent List contains any
provision repugnant to the provisions of an earlier law made by the Parliament, or an existing
law with respect to that matter, then the law so made by the State Legislature shall, if it has
been reserved for the consideration of the President and has received his assent, prevail in
that State.

ADMINISTRATIVE RELATIONS

Art. 256. Obligation of States and the Union

- The executive power of every State shall be so exercised as to ensure compliance with
the laws made by Parliament and any existing laws which apply in that State, and the
executive power of the Union shall extend to the giving of such directions to a State
as may appear to the Government of India to be necessary for that purpose
- Although the Union has its own area of power, the territories in which it functions are
under the control of states which in turn have their own areas of power independent of
the Union.
- To ensure that a State Government by its actions or inactions does not interfere with
the legislative and administrative policies of the Union and thereby undermine the
 unity of the nation, certain powers of administrative control over the States have been
given to the Union.
- Article 256 lays down that it shall be the duty of the State to exercise its executive
power so as to ensure that due effect is given within the State to every Act of
Parliament and to every existing law which apply in that State.
- The Union Government is entitled to give directions to the State Government
regarding the duty which is imposed on the State Government by Article 256.

Article 257 gives authority to the Union to issue directions to the States with respect to:
(a) the manner in which the executive power of the State shall be exercised so as not to
impede or abridge the executive power of the Union.
(b) The construction and maintenance of means of communication, declared to be of
national or military importance.
(c) measures to be taken for protection of railways within the State.

Distinction between Article 256 and 257 (1):

1. Article 256 (1) lays down a general obligation upon States.
2. Article 257 lays down a specific obligation on the States not to do anything which
would impede or hamper the executive power of the Union.
3. Under the Government of India Act, 1935, the obligation of the nature laid down in
Article 256 was treated as a constitutional or moral duty of the States.
4. Under the Constitution of India, the Union is -entitled to give directions to the States
with respect to the matter specified in Article 257.

The Constitution provides for a situation in which a State Government declines to carry out
the directions issued by the Union. Article 365 lays down that where a State has failed to
comply with or give effect to any directions given in the exercise of the executive powers of
the Union, it shall be lawful for the President to hold that a situation has arisen in which the
Government of the State cannot be carried on in accordance with the provisions of the
Constitution. Thereafter the President will be entitled to assume all or any of the functions of
the Government of the State and all the powers vested in or exercisable by the Governor or
any body or authority other than the High Court of the State. The President may also declare
that the powers of the State Legislature shall be exercisable by or under the authority of
Parliament.
Article 257 (4) lays down that if in carrying out any of the directions issued under Article
257 additional costs have been incurred by the State, such sums as may be agreed shall be
paid by the Govemment of India. If there is no agreement on the point it shall be determined
by an arbitrator to be appointed by the Chief Justice of India.
Article 258 (1) empowers the President to entrust to a State Government functions relating to
any matter falling within the executive power of the Union. This delegation of functions has
to be with the consent of the Government of the State. A notification by the President under
Article 258 entrusting functions to a State Government is a legislative act.

In Jayantilal Amratlal Shodhan v. F.N. Rana, it was held by the Supreme C that Article
258(1) empowers the President to entrust to the State the functions which are vested in the
Union, and which are exercisable by the President behalf of the Union. But it went on to say
that Article 258 does not authorise President to entrust such power as are expressly vested in
him by the Consti such as those under Articles 356 and 309 and which do not fall within the
of Article 258(1). Thus a distinction was sought to be made between the exec functions of the
Union and the executive functions of the President.
TRADE AND COMMERCE
 MODULE-III
COMPOSITION AND TERMS OF HOUSES OF PARLIAMENT AND STATE
LEGISLATURE

CHAPTER 2 - ARTICLE - 79 TO 122 - Chapter 2 of the Constitution of India deals with

Parliament.
● Article 79 calls for the constitution of the parliament consisting of Presi and two
houses
● Composition of the Council of States - Article 80
- Indian Parliament is bicameral in nature i.e. that it has two houses. The Upper
House is called the Council of States(Also called Rajya Sabha).
- According to article 80, the Maximum number of Members of the House
cannot exceed 250 members where twelve members are nominated by the
 President(Article 80(1)a) and the other 238 members are from States and
UTs(art 80(1)(b)). At present, the upper house has 245 members.
- The president makes the nominations from those persons who have special
knowledge or practical experience in literature, science, art and social
service. The allocation of seats in the House among the States and the Union
Territories is listed out under the 4th schedule as amended by the 7th
amendment.
- The allotment among the various States and the Union Territories is on the
basis of population, the formula being one seat for each million of the
population for the first five million and thereafter one seat for every two
million population or part thereof exceeding one million.
- The election to rajya sabha, unlike lok sabha is an indirect election process.
The representation of each state shall be elected by the elected members of the
legislative Assembly of the state in accordance with the system of
proportional representation by means of single transferable vote. The
Members of Rajya Sabha belonging to Union Territories arechosen in such
manner as Parliament may by law prescribe.
- In making nominations to Rajya Sabha, the President acts on the advice of the
Council of Ministers. Further, the Courts do not interfere with the presidential
power to make nominations.
- Kuldip Nayar v. UoI - There is no difference of status between the elected
and the nominated members of Rajya Sabha, except that the former do, and
the latter do not, participate in the election of the President of India.
- Term: Rajya Sabha is a permanent or continuing body . There is a rotational
system where one-third of its members retire every two years [Art. 83(1)],
and their seats are filled up by fresh elections and presidential
nominations.
● Composition and term of lok sabha: The House of People is the lower or popular
house of Parliament.
- According to Clause 1 of Article 81 of the Constitution, as amended by the
Seventh Amendment in 1956, the House of the People shall consist of not
more than 530 members chosen by direct election from territorial
constituencies in the States and not more than 20 members to represent the
Union territories chosen in such a manner as Parliament may by law provide.
- Currently, the house has 543 elected members of which 530 members are from
states and 13 are from UTs. Between 1952 and 2020, 2 additional members of
the Anglo-Indian community were also nominated by the President of India
on the advice of the Government of India, which was abolished in January
2020 by the 104th Constitutional Amendment Act, 2019. Provision has been
made for reservation of seats in the Lok Sabha for Scheduled Castes and
Scheduled Tribes
- Members from the States and UTs are elected by the system of direct election
from territorial constituencies on the basis of adult suffrage [Art.81(1)(a)]
(The 7th Amendment of the Indian Constitution was needed to implement the
recommendations of the States Reorganisation Commission regarding the
reorganization of the states on a linguistic basis. It also has a provision that
made readjustment in the allocation of seats to the states and the divisions of
each state into territorial constituencies after each census.)
- Clause 2 states that The total elective membership of the Lok Sabha is
distributed among States in such a way that the ratio between that number
and the population of the State, as far as practicable, is the same for all
the States. Each State shall be divided into the territorial constituencies in
such a manner that the ratio between the population of each constituency
and number of seats allotted to it, is so far as practicable, the same
throughout the States. [Arts. 81(2)(a) and Art. 81(2)(b)].. This provision
does not apply to a State having a population of less than six millions [Proviso
to Art. 81(2)].
- Clause 3 - Following the Constitution 84th Amendment Act, the total number
of existing seats as allocated to various States in the Lok Sabha on the basis of
the 1971 census and for territorial constituencies on basis of 2001 census,
shall remain unaltered till the first census to be taken after the year 2026
- The term of the Lok Sabha, unless dissolved earlier, is five years from the
date appointed for its first meeting. However, while a proclamation of
emergency is in operation, this period may be extended by Parliament by law
for a period not exceeding one year at a time, and not extending in any case,
beyond a period of six months after the proclamation has ceased to operate.
17th Lok Sabha is in operation.
● Composition and term of state legislature: The State Legislature is a law making
body at state level. In most States, the Legislature consists of the Governor and the
Legislative Assembly (Vidhan Sabha). This means that these State have unicameral
Legislature. In a few States, there are two Houses of the Legislature namely, the
Legislative Assembly (Vidhan Sabha) and the Legislative council (Vidhan Parishad)
besides the [Link] Legislative Assembly is known as the lower House or
popular House. The Legislative Council is known as the upper House. Andhra
Pradesh, Bihar, Karnataka, Maharashtra, Telangana, and Uttar Pradesh have
bicameral legislatures, with the remaining states having a unicameral one.
- Article 168 deals with the constitution of legislatures in [Link] regards the
composition of the Legislative Assemblies of the States, Article 170 provides that
the Legislative Assembly of each State shall be composed of members chosen by
direct election. The total number of members of an Assembly is not to be more than
500 and less than 60.
- As regards the composition of the Legislative Councils, Article 171 provides that
the total number of members in the Legislative Council shall not exceed 1/3rd of the
total number of members of the State Assembly. The total number is not to be
less than 40 in any case.
- Out of the total number of members of the Legislative Council of a State
(1) about 1/3rd shall be elected by electorates consisting of members of
municipalities, district boards and such other local authorities in the State as
Parliament may by law specify,
(2) about 1/12th shall be elected by electorates consisting of persons residing in
the State who have been for at least 3 years graduates of any University in
the territory of India or have been for at least 3 years in possession of
qualifications prescribed by or under any law made by Parliament as
equivalent to that of a graduate of any such University,
(3) about 1/12th shall be elected by electorates consisting of persons who have
been for at least 3 years engaged in teaching in such educational
institutions within the State, not lower in standard than that of a
secondary school,
(4) about 1/3rd shall be elected by the members of the Legislative Assembly of
the State from amongst persons who are not members of the Assembly, and
 (5) the remainder shall be nominated by the Governor. The nominated
members shall consist of persons having special knowledge or practical
experience in respect of literature, science, art, co-operative movement and
social service
● TENURE - As regards the duration of the State Legislatures, Article 172 provides
that every State Assembly shall continue for 5 years from the date appointed for its
first meeting and no longer. The expiration of 5 years shall operate as a dissolution of
the Assembly. However, the Assembly can be dissolved earlier. The period of 5 years
may be extended by Parliament by law for a period not exceeding one year at a time
and not extending in any case beyond a period of 6 months after the Proclamation of
Emergency has ceased to operate. The Legislative Council is a permanent House. It
is not subject to dissolution, but about one-third of its members shall retire after
every two years.
 OFFICERS OF PARLIAMENT

As per the SALARIES AND ALLOWANCES of OF OFFICERS OF PARLIAMENT ACT,

1953, “Officer of Parliament” means any of the following officers, namely, the Chairman
and Deputy Chairman of the Council of States and the Speaker and the Deputy Speaker
of the House of the People

OFFICERS OF COUNCIL OF STATES: The officers of the Council of States are the
Chairman and the Deputy Chairman of the Council of States. Article 89 provides that the
Vice-President of India shall be the ex officio Chairman of the Council of States.( Also
article 64 states the same that Vice-President of India shall be the ex officio Chairman) The
Deputy Chairman is to be elected by the members of the Council of States.
1. Chairman:
● Ex-officio means ‘as a result of one’s position’ - meaning the Vice President is
Chairman of the Council of States because of his position as Vice President. So, when
he stops being Vice President, he will stop being Chairman.
● During any period 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 (Article 91)
● 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. Under the Rules of Procedure
of the House, the Chairman enjoys powers to regulate the proceedings of the House
similar to those enjoyed by the Speaker in relation to the Lok Sabha
● Unlike the Speaker (who is a member of the House), the Chairman is not a member
of the House. But like the Speaker, the Chairman also cannot vote in the first
instance. He too can cast a vote in the case of an equality of votes. (Article 100)
● The Vice-President cannot preside over a sitting of the Rajya Sabha as its Chairman
when a resolution for his removal is under consideration. However, he can be
present and speak in the House and can take part in its proceedings, without voting,
even at such a time (Article 92)
● During any period when the Vice-President acts as President or discharges the
functions of the President, he is not entitled to any salary or allowance payable to the
 Chairman of the Rajya Sabha. But he is paid the salary and allowance of the President
during such a time.

2. deputy chairman:
- Article 90 talks about Vacation and resignation of, and removal from, the office of
Deputy Chairman.
- Deputy Chairman of the Council of States
(a) shall vacate his office if he ceases to be a member of the Council
(b) may at any time, by writing under his hand addressed to the Chairman, resign
his office; and
(c) may be removed from his office by a resolution of the Council passed by a
majority of all the then members of the Council. However, a notice of 14 days
is required for passing such a resolution.
- Article 91 states that in the absence of the Chairman, the Deputy Chairman is to
perform all the duties of the Chairman.
● 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.
● He also acts as the Chairman when the latter is absent from the sitting of the
House.
● In both the cases, he has all the powers of the Chairman. It should be
emphasised here that the Deputy Chairman is not subordinate to the
Chairman. He is directly responsible to the Rajya Sabha
● Like the Chairman, the Deputy Chairman, while presiding over the House,
cannot vote in the first instance; he can only exercise a casting vote in the case
of a tie.
- Article 92 - However, the Chairman or the Deputy Chairman is not to preside while a
resolution for his removal from office is under consideration. The Chairman shall
have the right to speak in and otherwise take part in the proceedings of the Council of
States while any resolution for the removal of the Vice-President from his office is
under consideration, but he shall not have any right to vote.
- The Vice-President cannot preside over a sitting of the Rajya Sabha as its Chairman
when a resolution for his removal is under consideration. And he cannot vote for such
resolution or for any other proceedings during this resolution.
 - The salaries and allowances payable to the Chairman and Deputy Chairman are
fixed by Parliament by law and, until so fixed, are to be as specified in the Second
Schedule to the Constitution [Art. 97].

OFFICERS OF THE HOUSE OF PEOPLE: Art. 93 to 97 - Speaker or the Deputy

Speaker

● There shall be a Speaker to preside over the House of the People. The House of the
People will, as soon as may be after its first sitting, choose two members of the House
to be, respectively, Speaker and Deputy Speaker [Art. 93]. The Speaker or the
Deputy Speaker will normally hold office during the life of the House(5yrs), but his
office may terminate earlier in any of the following ways under Article 94
(i) By his ceasing to be a member of the House.
(ii) By resignation in writing, addressed to the Deputy Speaker, and vice versa.
(iii) By removal from office by a resolution, passed by a majority of all the then
members of the House. Provided that 14 days prior notice has to be given for such
resolution.
● As in case of the Speaker, the salaries and allowances of the Chairman are also fixed
by the Parliament. They are charged on the Consolidated Fund of India and thus are
not subject to the annual vote of Parliament.
● However, the Speaker has two special powers which are not enjoyed by the
Chairman.
1. The Speaker decides whether a bill is a money bill or not and his decision on
this question is final.
2. The Speaker presides over a joint sitting of two Houses of Parliament.
● While the office of Speaker is vacant, the duties of the office shall be performed by
the Deputy Speaker or, if the office of Deputy Speaker is also vacant, by such member
of the House of the People as the President may appoint for the purpose(art. 95)
● While a resolution for his removal is under consideration, the Speaker shall not
preside but he shall have the right to speak in, and to take part in the proceedings of,
the House, and shall have a right of vote except in the case of equality of votes [Art.
96].
● Kihoto Hollohan v. Zachillu and Others : "The office of the Speaker is held in the
highest esteem and respect in Parliamentary traditions. The evolution of the institution
 of Parliamentary democracy has as its pivot the institution of the Speaker. The
Speaker holds a high, important and ceremonial office... The Speaker is said to be the
very embodiment of propriety and impartiality"
● Art. 98 talks about Secretariat of Parliament.—
● Each House of Parliament shall have a separate secretarial staff:
● Parliament may by law regulate the recruitment, and the conditions of service
of persons appointed, to the secretarial staff of either House of Parliament.(art
98(2))
● Until provision is made by Parliament under clause (2), the President may,
after consultation with the Speaker of the House of the People or the
Chairman of the Council of States, as the case may be, make rules regulating
the recruitment, and the conditions of service of persons appointed, to the
secretarial staff of the House of the People or the Council of States, and any
rules so made shall have effect subject to the provisions of any law made
under the said clause.
OFFICERS OF STATE LEGISLATURE: Articles 178 - 187
Under Article 178, Every State Assembly shall have a Speaker and a Deputy Speaker.

Article 179 - A person holding office as Speaker or Deputy Speaker of an Assembly shall
vacate his office if he ceases to be a member of the Assembly, or he may at any time resign
his office, or may be removed from his office by a resolution of the Assembly passed by a
majority of all the then members of the Assembly. A notice of 14 days is required for passing
such a resolution. Whenever the Assembly is dissolved, the Speaker shall not vacate his
office until immediately before the first meeting of the Assembly after the dissolution.

Article 180 - When the office of the Speaker is vacant, his duties are to be performed by the
Deputy Speaker. When the Speaker is absent from any sitting of the Assembly, the Deputy
Speaker is to preside in his place.

Article 181 - However, neither the Speaker nor the Deputy Speaker is to preside while a
resolution for his removal from office is under consideration. The Speaker shall have the
right to speak and otherwise to take part in the proceedings of the Legislative Assembly while
a resolution for his removal from office is under consideration. He shall be entitled to vote
only in the first instance on such a resolution but not in the case of equality of votes.
Under Art 182, the Legislative Council of a State is to have a Chairman and a Deputy
Chairman.

Article 183 - They vacate their offices if they cease to be members of the Council. They can
also resign their offices voluntarily. They can also be removed from their offices by a
resolution of the Council passed by a majority of all the then members of the Council. As in
the case of the Speaker, a notice of 14 days is required to pass such a resolution.

Article 184 - The Deputy Chairman is to preside in the absence of the Chairman or when the
office of the Chairman is vacant.

Article 185 - Neither of them is to preside over a meeting of the Council while a resolution
for their removal from office is under consideration. The Chairman has the right to speak and
take part in the proceedings of the Council while a resolution for his removal is under
consideration and he is also entitled to vote except when there is an equality of votes

THE FUNCTIONS AND POWERS OF THE INDIAN PARLIAMENT

The functions and powers of the Indian Parliament can be divided into legislative, executive,
financial and other catagories.

Legislative Functions - There are three lists – Union List, State List and the Concurrent List.
Only Parliament can make laws on the subjects mentioned in the Union List. You know that
the Union List has 97 subjects. Along with the State Legislatures, the Parliament is
empowered to make laws on the Concurrent List. In case, both the Centre as well as the
States make a law on the subject mentioned in the Concurrent List then the central law
prevails upon the state law if there is a clash between the two. Any subject not mentioned in
any list i.e. residuary powers are vested with the Parliament. Thus the law making power of
the Parliament is very wide. It covers the Union List and Concurrent List and in certain
circumstances even the State List also.
Executive Function - In the parliamentary form of government, the executive is responsible
to the legislature. Hence, the Parliament exercises control over the executive by several
measures. Prime Minister and his Council of Ministers are responsible to the Parliament
individually as well as collectively. The Parliament can dislodge a ministry by passing a vote
of no confidence or by refusing to endorse a confidence [Link] the no-confidence motion
or the confidence motions are the extreme ways of maintaining the accountability of the
Parliament over the [Link] Parliament also exercises control over the executive
through several motions like adjournment motion cut motion, censure motion.

Financial Functions - Parliament is the ultimate authority when it comes to finances. The
Executive cannot spend a single pie without parliamentary approval. The Union Budget
prepared by the Cabinet is submitted for approval by the Parliament. All proposals to impose
taxes should also be approved by the Parliament. There are two standing committees (Public
Accounts Committee and Estimates Committee) of the Parliament to keep a check on how the
executive spends the money granted to it by the legislature.

Amending Powers - The Parliament has the power to amend the Constitution of India. Both
Houses of the Parliament have equal powers as far as amending the Constitution is
concerned. Amendments will have to be passed in both the Lok Sabha and the Rajya Sabha
for them to be effective.

Electoral Functions - The Parliament takes part in the election of the President and the
Vice President. The electoral college that elects the President comprises of, among others,
the elected members of both Houses. The President can be removed by a resolution passed by
the Rajya Sabha agreed to by the Lok Sabha.(initiated by either house?)

Judicial Functions - In case of breach of privilege by members of the House, the

Parliament has punitive powers to punish them. A breach of privilege is when there is an
infringement of any of the privileges enjoyed by the MPs. The power of the Parliament to
punish its members is also generally not subject to judicial review. Other judicial functions of
the Parliament include the power to impeach the President, the Vice President, the judges of
theSupreme Court, High Courts, Auditor-General, etc.

Other Powers-
(i). To discuss various issues of national and international importance
(ii). Imposing emergency
(iii). Increase or decrease area, change names, alter the boundary of the states
(iv). Create or abolish state legislature etc any powers can be added from time to time

PRIVILEGES OF PARLIAMENT AND STATE LEGISLATURES:

Article 105- deals with parliamentary privileges - This article adopts a particular
methodology. 2 privileges- freedom of speech and freedom of publication of proceedings are
specifically mentioned in 2 clauses here. With respect to other privileges of each house is
provided in clause 3. The 44th amendment was made in 1978. Before that clause 3 laid down
that the powers, privileges and immunities of each house of parliament will be the ones
provided in the house of commons in the UK. Right now even after amendment it is the same
because no new law has been made to change it
Important case. PV Narasimha Rao v state, 1998 vol 4 supreme court cases 626. Scope of
this article clause 2 was discussed.
Facts of the Case: During the 10th Lok Sabha election which was held in the year 1991, the
congress party was the leading party and subsequently, it formed the government with P.V.
Narasimha Rao as a Prime Minister. However, everything was going well in the party unless
during the monsoon session of Lok Sabha in July 1993 a ‘No Confidence Motion’ was
moved against the existing government of P.V. Narasimha Rao. Now, the party was in
minority so they gave bribes to a few members of JMM (Jharkhand Mukti Morcha) and urge
them to vote against the motion. The party somehow managed to defeat the motion with 251
members voting in the favor of the motion and 265 voting against the motion. After the
motion got defeated the party once again came into power. But on February 28, 1996, a
person named Shri Ravindra Kumar of Rashtriya Mukti Morcha filed a complaint with the
CBI wherein it was alleged that some members of parliament were bribed during the
no-confidence motion in Lok Sabha in July 1993. The CBI based on information received
registered a complaint under Section 13(2), Section 13(1) (d) (iii) of the Prevention of
Corruption Act against the Suraj Mandal, Shibu Soren, Simon Marandi, and Shallendra
Mahto, members of JMM. In short, a criminal prosecution was launched against the
bribe-taking and bribes giving members of the Parliament under the Prevention of Corruption
Act, 1988 and Section 120-B of the Indian Penal Code. The cognizance was taken by the
special Jude Delhi, the person who sought to be charged as aforesaid, filed a petition in Delhi
High Court seeking to quash the charge, the High court dismissed the petition. Therefore an
appeal was filed in the Supreme Court of India and then referred to the constitutional bench.
Whether this privilege will extend to bribes for voting on things in parliament. Majority held
that members who gave and took bribes but did not participate in voting couldn't take
protection under this article. The majority did not agree with the minority that the words, in
respect of means arising out of and therefore wouldn't cover conduct antecedent to speech or
voting in parliament. Majority disagreed with this.

Markandeya katju v lok sabha 2003 vol 2 supreme court cases 384 -
BRIEF FACTS AND PROCEDURAL HISTORY - On 10.03.2015, the petitioner, a former
Judge of this Court published a post on his Facebook Page in respect of Mahatma Gandhi,
Father of the Nation. The post was entitled “Gandhi – A British Agent” and stated that
Mahatma Gandhi did great harm to India. On the same date, another post was published by
the petitioner on his Facebook Page in respect of Netaji Subhash Chandra Bose referring to
him as an agent of Japanese fascism. These posts evoked immediate response and on
11.03.2015, discussion took place in Rajya Sabha. At the end of the discussion, a Resolution
was moved by the Chairman of Rajya Sabha which was passed unanimously by the House.
The resolution condemned the remarks made by the petitioner. On the next day, discussion
also took place in Lok Sabha whereafter a resolution was passed by Lok Sabha on 12.03.2015
condemning the facebook post made by the petitioner. On 23.03.2015, the petitioner sent
e-mails to the Chairman, Rajya Sabha and to the Speaker, Lok Sabha that the aforesaid
Resolutions condemning his statements on Mahatma Gandhi and Netaji Subhash Chandra
Bose were passed by Rajya Sabha and Lok Sabha without giving him any opportunity of
hearing and that rules of Natural Justice required that he should have been given an
opportunity of hearing. Since the petitioner did not receive any response from the Chairman,
Rajya Sabha or the Speaker, Lok Sabha, he has filed the present petition. The petition prayed
for quashing of the aforesaid Resolutions. The houses passed resolutions based on the
conduct of the judge. He approached SC that the houses should apologize to him. The court
observed that a citizen can get noticed and commented on in the houses. The amount the
citizen should be protected from being talked about in the parliament is for the legislature to
decide. The petition was dismissed by the court.

Right to publish debates, reports and proceedings. - Other privileges shall be determined
from time to time by parliament and if not determined it will be the same as the powers on
20th June 1979. Freedom from arrest is one such privilege in civil matters. Right to exclude
strangers. Right to prohibit the publication of debates. Right of the houses to regulate their
own constitutions and internal proceedings. Right to punish outsiders for contempt and expel
the members

MSM Sharma v Sri Krishna singha - Here breach of privilege proceedings were initiated
against the editor of a newspaper for publishing parts of speech of a legislator in legislative
assembly Bihar which were ordered to be expunged by the speaker of the house. The editor
filed a writ petition and contended that house of commons has no privilege to prohibit the
publication of publicly seen and heard proceedings for that part of proceedings which were
expunged. The SC said no. At that the time of commencement of the constitution, the house
of commons had the privilege to prohibit the publication of even true and faithful versions of
debates. Privileges will prevail over fundamental rights. Did not find any violation of article
21 so did not talk about it.

Article 361 A. - today no one can be charged for true publication made
LEGISLATIVE PROCEDURE
 MODULE 4

4. Cabinet form of Government – Collective responsibility of cabinet – Election, removal and

powers of President and Vice President – Appointment and powers of Governors – Ordinance
making power - pardoning powers - Executive, Union and State – Other constitutional
authorities - emergency provisions and federal structure – Services under the Constitution –
Doctrine of pleasure – Protection of Civil Servants.

CABINET FORM OF GOVERNMENT:

The cabinet form of government is also known as the parliamentary form of

[Link] Constitution of India provides for a parliamentary form of government, both
at the Centre and in the states. Articles 74 and 75 deal with the parliamentary system at the
Centre and Articles 163 and 164 in the states. The parliamentary system of government is
the one in which the executive is responsible to the legislature for its policies and acts.

FEATURES OF PARLIAMENTARY GOVERNMENT

REFER MOD 1 FOR PARLIAMENTARY FORM OF GOVT

COLLECTIVE RESPONSIBILITY OF CABINET

The term "collective responsibility" is explained by Lord Salisbury thus: For all that
passes in the Cabinet every member of it who does not resign is absolutely and irretrievably
responsible and has no right afterwards to say that he agreed in one case to a compromise,
while in another he was persuaded by his colleagues... It is only on the principle that absolute
responsibility is undertaken by every member of the Cabinet, who, after a decision is arrived
at, remains a member of it, that the joint responsibility of Ministers of Parliament can be
upheld and one of the most essential principles of parliamentary responsibility established."

Article 75(3) lays down that the Council of Ministers shall be collectively responsible to the
Lok [Link] principle of collective responsibility means that the Council of Ministers is
responsible as a body for the general conduct of the affairs of the government. All
Ministers stand or fall together in Parliament, and the government is carried on as a unity. In
the words of the Supreme Court of India, the principle of collective responsibility is that "for
every decision taken by the Cabinet, each one of the ministers is responsible to the
Legislature concerned."(Karnataka v. Union of India, AIR 1978 SC 131.)

The members of Parliament can put questions and supplementary questions to them. They
can move and pass votes of no-confidence or censure. They can reject the budget or any
other legislation put before the House by the Ministers. They can move token-cuts in the
salaries and allowances of the Ministers and thereby indicate that the Ministers do not
enjoy the confidence of the House. By all these methods, the Ministers can be made
responsible to the Legislature. If one Minister is defeated, all Ministers are bound to resign
because it shows a lack of faith in the Cabinet as a [Link] decisions of the Cabinet are
regarded as the decisions of the whole Council of Ministers and binding on all ministers.
A Minister cannot disown responsibility for any Cabinet decision so long as he remains a
Minister. He cannot both remain a Minister and criticise or oppose a Cabinet decision or even
adopt an attitude of neutrality, or oppose a colleague in public. But this does not mean that
the whole Cabinet can be responsible for an error of judgment or maladministration by
any single Minister. Similarly, if any Minister is found guilty of corrupt practices, it is
only that Minister and not the Cabinet as a whole which is called upon to resign.

In S.P. Anand, Indore v. H.D. Deve Gowda it was held that even if PM is not a MP once
elected become answerable to the House.

It is to give effect to the principle of collective responsibility that the deliberations of the
Cabinet are kept secret.A Cabinet Minister may lose his office if he reveals the details of a
Cabinet discussion to the press. Because preservation of a united front will become
impossible if disclosures are permitted of the differences of opinion which emerged at a
Cabinet meeting amongst its members.

In U.N.R. Rao v. Indira Gandhi, - it was urged that Article 75(3) should be read as meaning
that the principle of collective responsibility applies only when the House of the People is in
existence and not when it is dissolved or prorogued.
 ELECTION, REMOVAL AND POWERS OF PRESIDENT AND VICE
PRESIDENT

PRESIDENT OF INDIA

(Part-V-Union, Chapter I The executive)

Article 53-Executive power of the union vests with the president.
Article 73 - merely defines the matters to which the executive authority of the Union extends.

Executive authority is the authority to carry out the executive functions of the government.
It is not possible to frame an exhaustive definition of 'executive function'. Ordinarily, it
connotes the residue of the governmental functions that are either legislative or judicial
[Link] speaking, 'executive function' comprises both determination of policy as
well as carrying it into execution. Today the executive exercises the powers of subordinate
legislation and administrative justice.

Jayantilal Amratlal Shodhan v. F. N. Rana, AIR 1964 SC 648 - "It cannot, however, be
assumed that the legislative functions are exclusively performed by the Legislature, executive
functions by the executive and judicial functions by the judiciary alone. The Constitution has
not made an absolute or rigid division of functions between the three agencies of the State. To
the executive, exercise of functions legislative or judicial are often entrusted. For instance
power to frame rules, regulations and notifications which are essentially legislative in
character is frequently entrusted to the executive. Similarly judicial authority is also entrusted
by legislation to the executive authority".

Functions and powers of the President:

POWERS OF PRESIDENT: In India the powers of the Union government are treated as the
powers of the President because these powers are used in his name in pursuance of the
constitutional stipulation under Article 53 which reads: The executive powers of the Union
shall be vested in the President and shall be exercised by him either directly or through the
officers subordinate to him in accordance with this Constitution

[Link] Functions:
 ● The President is at the head of the Union Executive. Consequently, all executive
powers are exercised in his name
● As head of the executive, the President appoints the Governors of States, the Judges
of the Supreme Court and the High Courts, the Auditor General of India and many
other high officials, such as the members of Finance Commission, Election
commission, Union Public commission etc.
● The President also appoints the Prime Minister and with his advice the other
Ministers of the Union Council of Ministers.
● The President can also dissolve the Union Council of Ministers in accordance with
Article 75(2) of the constitution, if he finds that the Ministry does not enjoy the
support of the majorities in the Lok Sabha.
● Supreme Commander: As head of State, the President is the supreme Commander of
the Armed Forces of India and is entitled to declare war or conclude a treaty.
[Link] Powers:
● Summoning the Houses of Parliament in normal circumstances;
● Dissolving the Lower House and summoning a joint session of both the Houses in
case of deadlock between the two on a particular bill;
● Addressing first session of the both Houses of Parliament after each General
Election to the Loksabha;
● Nominating 12 Members to the Upper House
● Giving assent to the bills passed by both Houses of Parliament to make in an Act
● Except when both Houses of Parliament are in session, the President may promulgate
such Ordinances as the circumstances appear to him to require (Article 123). Such
an ordinance can have the same force and effect of an Act of Parliament

3. Financial Powers
● No money bill can be introduced in Parliament without the recommendations of the
President.
● According to the Constitution of India, the Annual Financial Statement is placed by
the President before both the Houses of Parliament
● No proposal for spending money or raising revenues for purposes of government can
be introduced in Parliament without previous permission of the President.
4. Emergency Powers
● The constitution of India empowers the President to proclaim three kinds of
● 1. Emergencies: National Emergency (Art. 352);
● 2. Emergency for failure of Constitutional Machinery in a State (Art. 356);
● 3. Financial Emergency (Art. 360)
● Wide powers are given to the President in an emergency including the power to the
enforcement of fundamental rights.

[Link] powers
● All international treaties and agreements are negotiated and concluded on behalf of
the President.
● The President may also send and receive diplomats, i.e. the officers from the Indian
Foreign Service. The President is the first citizen of the country.

6. judicial powers:
● The President of India grants, pardons, reprieves or remissions of punishment to
any person who has been convicted by a Court of Law under article 72

In Ram Jawaya Kapur v. State of Punjab, Mukherjea CJ, speaking for the court, stated
that though the executive power is vested in the President, the President is only a formal or
constitutional head of the executive. The real power is vested in the Council of Ministers
on whose aid and advice the President acts in the exercise of his functions. The executive
has the primary responsibility for the formulation of government policy and its transmission
into law. But it is responsible for all its actions to the legislature, and, therefore, it must
retain the confidence of the legislature. The basis of this responsibility is embodied in
Article 75(3).
Shamsher Singh v. State of Punjab, 1974- SC addressed in this case about 74 - whether
Presi had any discretion like Governor (163).
SC held-Presi& Governor are custodians of executive power & that they shall exercise their
formal consti powers with aid and advice of COM, say a few well-known exceptional
situations. They are (not limited to )-
● The choice of PM.
● The dismissal of a govt that lost its majority in the house but refuses to quit → guided
by mandate.
 ● The dissolution of the house
● Assent to bills (Art 111)
Elections of President in India:

Article 55(3) - elected according to Proportional Representation by the means of single

transferable vote.
56. Term of office of President
Tenure: As per article 56, President shall hold the office for terms of 5 years from the date he
enters upon his office. Even after expiry of his terms, he shall continue in office untill his
successor enters upon his office. he may resign his office before the expiry of his normal
terms of 5 years by writing to the vice president.
when to hold election:
Election to the President's office must be held before the expiry of the tenure of the President
in office [Art. 62(1)]. If the office falls vacant by death, resignation or removal or otherwise,
then election to fill the vacancy should be held within six months from the date of the
occurring of the vacancy. The person so elected as the President is entitled to remain in office
for the full term of five years from the date he assumes charge of his office [Art. 62(2)].

In re : Presidential Poll [1974]

Election to fill vacancy in office of Presi must be completed before the expiry of the term of
Presti completed
Facts -State Constituency of Gujarat was disolved.
Held- must be in accordance with Art 62
The Presidential & [Link] Elections Act, 1952 - also talks about the same

Qualifications of Presi:

Baburao Patel Vs Dr Zakir Hussain, (AIR 1968 SC 904) wherein it has held that "the
Election Commission cannot lay down a new qualification for a candidate for
Presidential Election under Article 324 of the Constitution. Accused of not taking the oath
and undue influence. Held no undue influence and oath not required.
Purno Agitok Sangma v. Pranab Mukherjee, (2013): office of profit questioned - ISI -
nomiantion paper

REMOVAL:
Impeachment is a quasi judicial [Link] idea of impeachment seems to have been
borrowed from the U.S. Constitution

PARDONING POWER

Article 72 empowers the President to grant pardon, reprieve, respite or remission of

punishment, or to suspend, remit or commute the sentence of any person convicted of any
offence in all cases--
(a) where the punishment or sentence is by a court martial;
(b) where the punishment or sentence is for an offence against a law relating to a matter to
which the Union's executive power extends; and
(c) of a death sentence.

● pardon means to forgive, to excuse;

● remission reduces the amount of a sentence without changing its character and
commutation is changing the sentence to a higher penalty of a different form.
● A pardon is an act of grace which releases a person from punishment for some
offence. A pardon may be either full, limited or conditional. A full pardon wipes out
the offence in the eyes of law; a limited pardon relieves the offender from some but
not all the consequences of the guilt and a conditional pardon imposes some condition
for the pardon to be effective.

The scope of the power conferred on the President by Art. 72 is very extensive. It extends to
the whole of India. The power to grant pardon may be exercised either before conviction by
amnesty to the accused or under-trial prisoner or after conviction.(In re Channugadu,)
KM Nanavati v. State of Bombay - In K.M. Nanavati v. State of Bombay, the Supreme Court
held that the Executive has no power to dispense with the operation of the law though the
President and the Governors are vested with the power to Grant pardon to offender under
Article 72 and Article 161 respectively. The Supreme Court has held that the Governor’s
power to suspend sentence under Article 161 is subject to the rules made by the Supreme
Court under Article 145 for disposal of pending appeals before it. Once the appeal is filled
in the court the governor cannot exercise his power of suspension of sentence under
Article 161, and if he does so his order would be invalid being in conflict with the
Supreme Court rules under Article 143.
In Kehar Singh the Court considered the nature of the President’s power under Article 72
while dealing with a petition challenging the President’s rejection of a mercy petition by
Indira Gandhi’s assassin, Kehar Singh. The Court explicitly held in that ‘Article 72 falls
squarely within the judicial domain and can be examined by the court by way of judicial
review.’ However the Court qualified this finding by holding that the order of the President
cannot be subjected to judicial review on its merits except within the strict limitations
defined in Maru Ram. Considerations that are arbitrary or ‘wholly irrelevant, irrational,
discriminatory or mala fide.’ However in Kehar Singh the Court declined to lay down
guidelines for the exercise of the power under Article, stating that there is sufficient
indication in the terms of Art.72 and in the history of the power enshrined in that provision as
well as existing case law. The decisions in Maru Ram Kehar Singh still hold the field and
thus the present position is that Presidential Pardon under Article 72 is subject to judicial
review on the grounds mentioned in Maru Ram v Union of India.
The Governor’s power of pardon under Article 161 runs parallel to that of the President under
Article 72 and thus several cases based on the same have a bearing on the Presidential Power
under Article 72. Moreover judgments dealing with Article 72 have simultaneously deal with
Article 161 and vice-versa.

ORDINANCE MAKING POWER:

Ordinarily, under the Constitution, the President is not the repositary of the legislative power
of the Union. This power belongs to Parliament. But, with a view to meet extraordinary
situations demanding immediate enactment of laws, the Constitution makes provision to
invest the President with legislative power to promulgate ordinances. An ordinance is only a
temporary law. The executive in Britain or the U.S.A. enjoys no such power.

Article 123 empowers the President to promulgate such ordinances as the circumstances
appear to him to require when--
(1) both Houses of Parliament are not in session; and
(2) he is satisfied that circumstances exist which render it necessary for him to take
immediate action

R.C. Cooper v. Union of India, AIR 1970 SC 564: The Ordinance is promulgated in the
name of the President and in a constitutional sense on his satisfaction: it is in truth
promulgated on the advice of his Council of Ministers and on their satisfaction
 ● The power to issue an ordinance is legislative power. An ordinance issued by the
President partakes fully of the legislative character and is made in the exercise of
legislative power. (A.K. Roy v. Union of India)
● An ordinance is to be promulgated when the 'President', or rather the Central
Executive, is satisfied that circumstances exist which render it necessary to take
immediate act ion. Whether or not circumstances exist which make the promulgation
of an ordinance necessary is a matter to be decided by the Executive in its subjective
satisfaction. Whether this satisfaction is non-justiciable or subject to judicial
review on any ground still remains an open question

An ordinance has the same force and effect as an Act of Parliament [Art. 123(2)]. An
ordinance comes to an end in the following situations--
(i) Resolutions disapproving the ordinance are passed by both Houses of Parliament;
(ii) if the ordinance is not replaced by an Act within the stipulated period;
(iii) the executive lets it lapse without bringing it before the Houses of Parliament;
(iv) if it is withdrawn by the Government at any time.
● One of the essentials to be kept in mind while passing an ordinance is that the
President should be satisfied; that circumstances exist that requires immediate actions
on part of the President. The apex court has not yet defined ‘satisfaction of the
President’ and even whether the subjective satisfaction of the President can be
questioned in the Court of Law.
● Filed petition in SC regarding this issue under Art 213 which led to landmark case
DC Wadhwa v. State of Bihar is a fine example of the abuse of Ordinance-making
power. In this case, the Bihar Governor promulgated 256 Ordinances and all of them
were kept alive for period ranging from 1-14 years by re-promulgation from time to
time. Out of 256, 69 were re-promulgated several times with the prior permission
of the President. The Court, in this case, held that the colorable re-promulgation of
ordinances is unconstitutional, as it amounts to fraud on the Constitution.

election removal and powers of vice president:

Article 63 of Indian Constitution states that "There shall be a Vice President of India."
article 65:-The office of the Vice President in India is complementary to that of the
President, in that, the Vice President takes over the role of the President in the latter’s absence
when In the event of the occurrence of any vacancy in the office of the President by reason
of his death, resignation or removal or unable to discharge his functions owing to absence,
illness or any other cause. while acting as a president the Vice president shall have all the
powers and immunities of the President and be entitled to such emoluments, allowances and
privileges

article 66-this article talks about election of vice [Link] Vice-President shall be
elected by the members of an electoral college consisting of the members of both Houses
of Parliament in accordance with the system of proportional representation by means of
the single transferable vote and the voting at such election shall be by secret ballot.
● clause 2 states that when the vice president is elected to his office he shall not be a
member of either House of Parliament or of a House of the Legislature of any State.
● clause 3 of 66 deals with qualification of vice president
No person shall be eligible for election as Vice-President unless he—
○ (a) is a citizen of India;
○ (b) has completed the age of thirty-five years; and
○ (c) is qualified for election as a member of the Council of States
○ also clause 4 states that vice president shall not eligible for election if he holds
any office of profit
● All disputes arising in connection with the election of the Vice President are
petitioned to the Supreme Court of India, which inquires into the matter.

article 67- deals with term of vice president.

The Vice-President shall hold office for a term of five years from the date on which he enters
upon his office.
provsio to art 67 deals with removal of vice president:
(a) a Vice-President may, by writing under his hand addressed to the President, resign his
office;
(b) a Vice-President may be removed from his office by a resolution of the Council of
States passed by a majority of all the then members of the Council and agreed to by the
House of the People; but no resolution for the purpose of this clause shall be moved unless at
least fourteen days' notice has been given of the intention to move the resolution;
(c) a Vice-President shall, notwithstanding the expiration of his term, continue to hold office
until his successor enters upon his office.
powers of vice president:
The Vice President of India, after the President, is the highest dignitary of India, and certain
powers are attached to the office of the Vice President. These are:
● The Vice President shall discharge the functions of the President during the temporary
absence of the President due to illness or any other cause due to which the President is
unable to carry out his functions.
● The Vice President shall act as the President, in case of any vacancy in the office of
the President by reason of his death, resignation, removal through impeachment or
otherwise. The Vice President shall take over the duties of the President until a new
President is elected and resumes office.
● The Vice President is the ex-officio Chairman of the Council of States.
● When the Vice President acts as, or discharges the functions of the President, he or
she immediately ceases to perform the normal functions of being the Chairman of
the Council of States.

appointment of governor:
article 153 talks about consitutiton of governor at state level

Art. 155: Appointment of Governor: The Governor of a State shall be appointed by the
President by warrant under his hand and seal.

Article 156: Term of office of Governor.—

(1) The Governor shall hold office during the pleasure of the President.
(2) The Governor may, by writing under his hand addressed to the President, resign his
office.
(3) Subject to the foregoing provisions of this article, a Governor shall hold office for a term
of five years from the date on which he enters upon his office:

Article 157:Qualifications for appointment as Governor.—

No person shall be eligible for appointment as Governor unless he is a citizen of India and
has completed the age of thirty-five years

Powers of governor:
Executive Powers
● All the executive functions in the State are carried on in the name of the Governor.
● the governor not only appoints the Chief Minister but on his/her advice appoints
the members of the Council of Ministers.
● The governor calls the leader of the majority party or an alliance of parties ( if no
single party in the Legislative Assembly gets majority) to form the Government.
● On the advice of the Chief Minister The state governor allocates portfolios among the
ministers.
● He/she appoints the Advocate- General and Chairman and members of the State
Public Service Commission. Also he has the power to appoint judges of the courts,
other than the High Court. he/she however, is consulted when the judges of the
State High Court are appointed by the President of India.
● While discharging all his/her functions as Head of the Executive in the State, the
Governors like the President, is aided and advised by the Council of Ministers headed
by the Chief Minister.

Legislative Powers
● As the Governor is said to be a part of the State Legislature, he has the right of
addressing and sending messages, summoning, deferring and dissolving the State
Legislature, just like the President has, in respect to the Parliament. Although
these are formal powers, in reality, the Governor must be guided by the Chief Minister
and his Council of Ministers before making such decisions.
● The Governor inaugurates the state legislature and the first session of each year, by
addressing the Assembly, outlining the new administrative policies of the ruling
government.
● The Governor lays before the State Legislature, the annual financial statement and
also makes demands for grants and recommendation of ‘Money Bills’.
● The Governor constitutes the State Finance Commission. He also holds the power to
make advances out of the Contingency Fund of the State in the case of any unforeseen
circumstances.
● All bills passed by the Legislative Assembly become a law, only after the Governor
approves them. In case it is not a money bill, the Governor holds the right to send
it back to the Vidhan Sabha for reconsideration. But if the Vidhan Sabha sends
back the Bill to the Governor the second time, then he has to sign it.
 ● The Governor has the power to promulgate an ordinance when the Legislative
Assembly is not in session, and a law has to be brought into effect immediately.
However, the ordinance is presented in the state legislature in the next session, and
remains operative for a total of six weeks, unless it is approved by the legislature.

Judicial Powers
● The Governor can grant pardons, reprieves, respites or remission of punishments. He
can also suspend, remit or commute the sentence of any person convicted of an
offence against the law under art 161.
● The Governor is consulted by the President in the appointment of the Chief Justice to
the High Court of that particular state.
●
Emergency Powers
● In case no political party bags a majority in the Vidhan Sabha of the state, the
Governor holds the power to use his discretion to select the Chief Minister.
● The Governor informs the President in an official report, of a particular emergency
arisen in the state, and imposes ‘President’s Rule’ on the behalf of the President. The
Governor, in such circumstances, overrides the advice or functions of the Council of
Ministers, and directs upon himself, the workings of the state.

Emergency:
Part- XVIII of Indian Constitution deals with the Emergency provisions i.e. Articles 352 to
360. There are three types of Emergencies mentioned in the Constitution. The power of
imposing all three types of Emergencies is vested upon the President of India. The concept of
Emergency was borrowed from the Weimar Constitution of Germany.

1. Proclamation of National Emergency (Article 352)

(1)president proclaims - war, external aggression and armed rebellion - to whole India or a
part affected - if imminent danger is there it can be proclaimed before war, external
aggression and armed rebellion.
(2) it can be revoked by subsequent proclamation
(3) the decision should be communicated in writing by union cabinet to Presi
(4)laid down before each house of parli - one month to accept - or else expires
Proviso - during this if LS is dissolved - proclamation must be approved within 30 days of
its reconstitution (when they sit first) - otherwise ceases to exist.
(5) duration - 6 months - second period starts after the end of first period - and the 2nd
proclamation had to undergo the same process under (4) - same proviso of (4).
(6) - requires majority of that house & requires not less than 2/3rds of majority of that house
present and voting.
(7) if house of people asks or if a situation needed - presi can revoke proclamation.
(8) the notice, in writing, which has to be signed by not less than one-tenth of the member of
House of People, disapproving the proclamation altogether from the starting under clause (1)
or disapproving the continuation of the proclamation, shall be handed over to:
● To the speaker, if the House of People is in session
● To the President, if the House of People is not in session;
A special meeting shall be conducted by either the speaker or the president, whomsoever
receives the notice, within fourteen days for the purpose of considering such resolution. This
revocation is passed by simple majority.
(9) power of Presi can issues different proclamations on different grounds.

In 1975, there was no provision for a periodic review of the proclamation of emergency,
after the decision was passed by the two houses of the Parliament. However, the 44th
Amendment Act made it mandatory that the passage of the proclamation of emergency shall
be reviewed after six months and in the absence of a renewed parliamentary approval, the
emergency shall be suspended. The amendment further provided that 10 percent or more
members of the Lok Sabha may requisition a meeting in order to consider a bill for
disapproving the proclamation. Such a requisition shall be summoned within 14 days. If the
specially summoned meeting, passes the bill by a simple majority, the emergency shall be
revoked - internal disturbance to armed rebellion.

The 44th Amendment has introduced a clause, viz., Art. 352(3), to the effect that the
President shall not issue a proclamation of emergency [under Art. 352(1)], or a proclamation
varying the same, unless the decision of the Union Cabinet that such a proclamation may be
issued has been communicated to him in writing.
Every proclamation issued under Art. 352(1) will automatically cease after one month if not
approved by Parliament in the meantime. Formerly, the period allowed for parliamentary
approval of the proclamation was two months. The 44th Amendment has reduced it to one
[Link] approved by the Parliament, the emergency remains in force for a period of six
months from the date of proclamation. In case it is to be extended beyond six months, another
prior resolution has to be passed by the Parliament.[Art. 352(5)]

NAGA CASE
The expression 'internal disturbance' has a wider connotation than 'armed rebel lion' in the
sense that 'armed rebellion' is likely to pose a threat to the security of the country or a part
thereof, while 'internal disturbance, though serious in nature, would not pose a threat to the
security of the country or a part thereof. The intention underlying the substitution of the word
'internal disturbance' by the word 'armed rebellion' in Article 352 is to limit the invocation of
the emer- gency powers under Article 352 only to more serious situations where there is a
threat to the security of the country or a part thereof on account of war or external
aggression or armed rebellion and to exclude the invocation of emergency powers in
situations of internal disturbance which are of lesser gravity"
Effects of National Emergency - Article 353
The declaration of National Emergency has far-reaching effects both on the rights of
individuals and the autonomy of the states in the following manner :
(i) The most significant effect is that the federal form of the Constitution changes into unitary.
The authority of the Centre increases and the Parliament assumes the power to make laws for
the entire country or any part thereof, even in respect of subjects mentioned in the State List.
(ii) The President of India can issue directions to the states as to the manner in which the
executive power of the states is to be exercised.
(iii) During this period, the Lok Sabha can extend its tenure by a period of one year at a time.
But the same cannot be extended beyond six months after the proclamation ceases to operate.
The tenure of State Assemblies can also be extended in the same manner.
(iv) During emergency, the President is empowered to modify the provisions regarding
distribution of revenues between the Union and the States. - Art 354
(v) The Fundamental Rights under Article 19 about are automatically suspended and this
suspension continues till the end of the emergency. - 358
(vi) Article 359 - effect on FR.
B. Failure of constitutional machinery in States.- State Emergency
Article 355 imposes a twofold duty on the Centre:--
(i) to protect every State against external aggression and internal disturbance, and
(ii) to ensure that the government of every State is carried on in accordance with the
provisions of the Constitution.
The two limbs of Art. 355 are not interdependent as constitutional break-down can take place
in a State even without there being a situation of 'external aggression" or "internal
disturbance".

Article 356 of the constitution empowers the President to issue a proclamation on receipt of a
report from the Governor of a State, or otherwise too, if he is satisfied that the government of
the State cannot be carried on in accordance with the provisions of the Constitution. By that
proclamation, he can assume to himself all or any of functions of the government of the State
and all or any of the powers vested in exercisable by the Governor or any body or authority in
the State, and declare at the powers of legislature of that State shall vest in Parliament. He
cannot, never, assume to himself any of the powers vested in or exercisable by a High Court
or to suspend, either in whole or in part, the operation of any provision of the Constitution
relating to High Courts.
The duration of a proclamation issued under Article 356 is two months. If not If after two
months the proclamation is to be c1ontinued, it has to be ratified by Parliament. Where
Parliament has ratified a proclamation, it will be in operation for six months, and any further
continuance should be sanctioned by Parliament. If dissolved -THIRTY DAYS after sitting
of parli. It can be extended for another six months but not beyond one year. However,
emergency in a State can be extended beyond one year if
(a) a National Emergency is already in operation; or if
(b) the Election Commission certifies that the election to the State Assembly cannot be held

In S.R. Bommai v. Union of India (S.R. Bommai), a Full Bench of the Karnataka High Court
reiterated that the proclamation under Article 356 is justiciable and that the courts could look
into the materials or reasons disclosed for issuing the proclamation to find out whether those
materials or reasons were wholly extraneous to the formation of the satisfaction and had no
rational nexus at all to the satisfaction reached under Article 356. But it upheld the President's
proclamation based on the Governor's report of horse trading among the legislators. The court
rejected the argument that the Governor should have ascertained the support to the Chief
Minister on the floor of the House.

In State of Rajasthan v. Union of India - President can assume the power of the governor
and himself dissolve the Legislative Assembly of a State.

Effects of Imposition of President’s Rule in a State

The declaration of emergency due to the breakdown of Constitutional machinery in a State
has the following effects:
(i) The President can assume to himself all or any of the functions of the State Government or
he may vest all or any of those functions with the Governor or any other executive authority.
(ii) The President may dissolve the State Legislative Assembly or put it under suspension. He
may authorise the Parliament to make laws on behalf of the State Legislature.
(iii) The President can make any other incidental or consequential provision necessary to give
effect to the object of proclamation
(iv) Article 357 allows the President to authorise expenditure from consolidated fund of state
when lok sabha is not in session, pending sanction of parliament

Article 358-ssuspension of provisions of Art. 19 during emergencies (it suspends the right)
State can make any law or executive action during war or external aggretion. It ceases to
operate with the proclamation
the law must contain recital to to the effect that such law is in relation to emergency
The executive action must emerge out of law containg recital.
Can be extended to parts of India where emergency isnt declared, if it affects the security of
india or if that part is threatened due to emergency in the existing part

Article 359--ssuspension of provisions of part iii during emergencies (it suspends the
remedy)
(1)Right to move to court and pending cases regarding part iii except art. 20 n 21 stands
suspended.
(1A) State can make any law or executive action. It ceases to operate with the proclamation
1B the law must contain recital to to the effect that such law is in relation to emergency
The executive action must emerge out of law containg recital.
Can be extended to parts of India where emergency isnt declared, if it affects the security of
india or if that part is threatened due to emergency in the existing part.

Financial Emergency
If the President is satisfied that a situation has arisen whereby the financial stability or credit
of India, or of any part there is threatened, he may by a proclamation make a declaration to
that effect. During the period the proclamation is in operation, the executive authority of the
Unicr shall extend to the giving of directions to any State to observe such canons financial
propriety as may be specified in the directions and be deemed necessary for maintaining
financial stability and credit of the State. Under these directions, any State may be required
by the Union to reduce salaries and allowances of all or any class of persons employed by the
State and reserve all money and financial Bills for consideration of the President after they
are passed by the leg islature of the State.
Like the other two types of emergencies, it has also to be approved by the Parliament. It must
be approved by both Houses of Parliament within two months. Financial Emergency can
operate as long as the situation demands and may be revoked by a subsequent proclamation.

Effects of Financial Emergency

The proclamation of Financial Emergency may have the following consequences:
(a) The Union Government may give direction to any of the States regarding financial
matters.
(b) The President may ask the States to reduce the salaries and allowances of all or any class
of persons in government service.
(c) The President may ask the States to reserve all the money bills for the consideration of the
Parliament after they have been passed by the State Legislature.
(d) The President may also give directions for the reduction of salaries and allowances of the
Central Government employees including the Judges of the Supreme Court and the High
Courts. So far, fortunately, financial emergency has never been proclaimed.

Makhan Singh Tarsikka v. state of punjab

Considered the effect of proclamation of emergency and president order under Article 359.
Doctrine of pleasure

It is a doctrine originated from common law countries mainly England where in Crown has
the absolute power to terminate or dismiss any servant working for the nation. Back in days
there is no fixed tenure to public servants and their tenure is absolute discretion of the Crown.
So, In England, the normal rule is that a civil servant of the Crown holds his office during the
pleasure of the Crown. This means that his services can be terminated at any time by the
Crown, without assigning any reason. Even if there is a contract of employment between the
Crown, the Crown is not bound by it. The civil servants who work under the pleasure of the
Crown, if terminated cannot challenge the pronouncement of the Crown or claim for damages
and are abide to follow.

Coming to the legal framework of India, there has been a strong effect or influence of laws of
England as India follows common law principles. Likewise, India has also adopted the
doctrine of pleasure like various other laws of the Common Law. In our Constitution we can
see this doctrine the pleasure Even though the doctrine has been accepted in India, but its
functionality is not accepted in its true form i.e. this doctrine does not work the same way it
does in England. We can see this doctrine under Article 310 of the Constitution of India. If
we look at Article 310(1) the terms “except as expressly provided” indicate that this doctrine
is not absolute as in England and British India. Supreme Court Judges, Auditor General, High
Court Judges, Members of Public Service Commission, Chief Election Commission are the
exempted class from the doctrine of pleasure under the constitutional limitations as expressed
under Article 310(1). In India, the notion the King can do no wrong is not followed and
hence, the civil servants are provided with some safeguard under Article 311 of the
Constitution of India. Article 311 puts certain restriction on the absolute power of the
President or Governor for dismissal, removal or reduction in rank of an officer. This means
that in India the relation between the head of the State and the civil servant is not unilateral
therefore, the servant can sue the act done while the exercise of this doctrine. In India, this
doctrine is subject to limitations imposed by the Constitution itself.

The Civil servants have not only been provided with Constitutional status under Article 308
but they have also been granted some protection under Article 311. The protections available
to a civil servant under Article 311 of the Constitution as follows
 ● No dismissal by subordinate authority
● The reasonable opportunity of being heard
So, services of any civil servants cannot be terminated at pleasure unless the mandatory
provisions of Article 311 have been observed.

In Union of India v. Tulsi Ram Patel, the Supreme Court in the case laid emphasis on the
reasonability behind the termination of a servant and mandates the departmental inquiry as
well as.

It is thus not surprising that the doctrine was imported into the legal system of pre-partition
Indian subcontinent, by virtue of the Government of India Act, [Link], we can say that
The Civil Services were introduced in India during the British rule therefore, their laws and
regulations were also applied in India as per the needs of the country but after the
independence of India, the civil services were provided Constitutional Status under Indian
Constitution.

MODULE - V

SUPREME COURT

Indian judiciary is independent and impartial. It is free from the influence of the executive as
well as the legislature. Its judges are appointed on the basis of their qualifications and cannot
be removed easily neither can their terms of office be altered to their disadvantage. there is a
unique blend of Parliamentary sovereignty with judicial Supremacy.

Art 124- establishment and constitution of SC - provides for the establishment of the SC
consisting of a CJI and not more than 7 judges until the parliament prescribes a larger
number. Now 33 Judges, 33+1(CJI), done by The Supreme Court (Number of judges)
Amendment Act, 2019)
● Article 124(2) - every judge of SC is appointed by Presi and not hold office after
65years of age
● Qualification to be a Judge of Supreme Court - 124[3]-
 ○ Citizen of India
○ Has been for at least five years as a Judge of a High Court or of two or more
such Courts in succession; or
○ Has been for at least ten years an advocate of a High court or of two or more
such Courts in succession; or
○ In the opinion of the President, a distinguished jurist.
● Article 124(2) (b) provides that a judge may be removed-
○ Article 124[4] provides the procedure for the removal of a Supreme Court
judge. It lays down that a judge may be removed by the President only on
grounds of proved misbehavior or incapacity
○ Prior to the President passing this order, it should be addressed to both the
houses and both houses need to approve with a Simple majority (total
membership) and 2/3rd majority of members (present and voting)
○ Such order shall be presented to the president in the same session and
President orders the removal.
● Art 124[5] says that the Parliament may by law regulate the procedure for the
presentation of an address and for the investigation and proof of the misbehavior
or incapacity of a Judge under clause (4)
● Article 124[6] provides that the Oath by Supreme Court Judge is taken in front of
President or some person appointed by President.
● Article 124[7] No person who has held office as a judge of the Supreme Court shall
plead or act in any court or before any authority within the territory of India.

Art 125- Salaries of judges - the salaries for the judges in the SC and the HC are fixed by
the parliament by law. the salaraies, allowances and pensions of the judges are charged on the
consolidated fund of India. this article was however amended in 1986 because the original
article did not give the possibility of an upward revisions.

Art 126- appointment of acting chief justice - President May appoint acting Chief Justice to
perform the functions of chief justice in his absence.

Art 129- SC to be a court of record - It shall also have the powers to punish for contempt of
itself.
In Delhi Judicial Service Assn. v. State of Gujarat 1991, it has been held that under Article
129 the Supreme Court has power to punish a person for the contempt of itself as well as of
its subordinate courts. The expression “including’ extends and widens the scope of power. It
indicates that the Supreme Court as a court of record has the power to punish for contempt of
itself and also something else which would fall within the inherent jurisdiction of the court of
record. In Rajeshwar Singh vs. Subrata Roy Sahara, 2014 Supreme Court held that
jurisdiction of Supreme Court under article 129 is independent of provisions of Contempt Of
Court Act, 1971

Article 131 - 139 - Jurisdiction

Art 141- law declared by the SC to be binding on all courts - the decision of the SC is
binding on all courts in the country. it is also binding on the state and its officers. even a set
of directions issues under this article shall be binding. the SC is also not bound by its
previous decisions and can overrule its own decisions. if there is a conflict between the
decisions given by the SC on the same matter then the decision given by the larger bench
shall prevail . also, the opinion of the SC under advisory jurisdiction are entitled to due
weight and respect and are normally followed by the courts through an authoritative
pronouncement. In Krishena Kumar v. UOI the SC has clarified that the precedent consists
only in the enunciation of the reason or principle upon which a question before the court has
been decided.
 HIGH COURT
214. High Courts for States. "I"] There shall be a High Court each State - This article has to
be read along with Articles 230 and 231 which respectively provide for the extension of
jurisdiction of High Courts to the Union territories and for the establishment of a common
High Court for two or more States. A High Court may also have one or more Benches of
itself within the area of its territorial jurisdiction. In determining the question of having
Benches and their location the opinion of the Chief Justice of the High Court shall have prime
importance. The Chief Justice may express his opinion through a committee of judges. Such
opinion is not open to challenge before the Supreme Court."

215. High Courts to be courts of record. - Every High Court shall be a court of record and
shall have all the powers of such a court including the power to punish for contempt of itself.
Every High Court is declared to be a court of record. There are two characteristics of a court
of record: 1) the records of such a court are admitted to be of evidentiary value and they
cannot be questioned when produced in a court, and 2) it has the power to punish for
contempt of itself." The power to punish for contempt of court is a special power derived
from Article 215 and not from the Contempt of Courts Act, 1971. No Act of Legislature
could take away that power and confer it afresh on the High Court by virtue of its own
authority. Therefore, this power remains unrestricted by any legislation." The High Courts'
jurisdic- tion to try and punish for contempt of court includes all necessary and incidental
powers to effectuate that jurisdiction." As the power to punish for its contempt is vested in
each High Court, contempt matters arising in one High Court cannot be transferred to another
High Court." As courts of record the High Courts also have the power to review and correct
their decisions, even though no specific power of review is conferred on the High Courts as is
conferred on the Supreme Court under Article 137. As such they have inherent and plenary
powers which include the power to review their decisions and correct the errors apparent on
the face of the record." It can undo its decision obtained by playing a fraud on the court."

216. Constitution of High Courts.-Every High Court shall consist of a Chief Justice and
such other Judges as the President may from time to time deem it necessary to appoint. The
Constitution does not fix the number of judges of a High Court. Each court is to consist
of such number of judges as may be deemed necessary by the President.

217. Appointment and conditions of the office of a Judge of a High Court

(1) Every Judge of a High Court shall be appointed by the President by warrant under his
hand and seal after consultation with the Chief Justice of India, the Governor of the
State, and, in the case of appointment of a Judge other than the chief Justice, the chief
Justice of the High court, and shall hold office, in the case of an additional or acting Judge,
as provided in Article 224, and in any other case, until he attains the age of sixty two years
Provided that
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office by the President in the manner provided in
clause ( 4 ) of Article 124 for the removal of a Judge of the Supreme Court;
(c) the office of a Judge shall be vacated by his being appointed by the President to be a
Judge of the Supreme Court or by his being transferred by the President to any other
High Court within the territory of India
(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a
citizen of India and
(a) has for at least ten years held a judicial office in the territory of India; or
 (b) has for at least ten years been an advocate of a High Court or of two or more such
Courts in succession; In the explanation of this article meaning of judicial officer is
provided and had been provided that when computing whether the office of advocate of
high court has been held for 10 years, their tenure as a judicial officers should also be
included.
(3) If any question arises as to the age of a Judge of a High Court, the question shall be
decided by the President after consultation with the Chief Justice of India and the decision
of the President shall be final

221. Salaries etc. of Judges.-"

(1) There shall be paid to the Judges of each High Court such salaries as may be determined
by Parliament by law and, until provision in that behalf is so made, such salaries as are
specified in the Second Schedule.
(2) Every Judge shall be entitled to such allowances and to such rights in respect of leave of
absence and pension as may from time to time be determined by or under law made by
Parliament and, until so determined, to such allowances and rights as are specified in the
Second Schedule:
Provided that neither the allowances of a Judge nor his rights in respect of leave of absence or
pension shall be varied to his disadvantage after his appointment.

APPOINTMENT OF SC & HC JUDGES:

Appointment of Judges to Supreme Court and High Courts (Art. 124 - appointment of SC
Judge and Art.217 - Appointment of HC Judge)

126. Appointment of acting Chief Justice - When the office of Chief Justice of India is
vacant or when the Chief Justice is, by reason or absence or otherwise, unable to perform the
duties of his office, the duties of the office shall be performed by such one of the other Judges
of the Court as the President may appoint for the purpose

127. Appointment of ad hoc Judges

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

Article 222 (1) of the Constitution of India-gives the power to transfer a Judge, from one
High Court to another, to the President of India who is required to consult the Chief
Justice of India (CJI) before exercising his authority to transfer a Judge.

In Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193 the question was
raised, whether Central Government can transfer a Judge of High Court to another High
Court without the consent of the concerned Judge? The matter was heard by a bench
comprising of five Judges. However, parties settled matter between them and therefore, an
order disposing of Appeal in terms of settlement was passed.
- On the issue of transfer of Judge with or without his consent, Bhagwati, J. in his
minority opinion observed, "It is no doubt true that the words "without his consent"
are not to be found in Clause (1) of Article 222, but the word 'transfer' which is used
there is a natural word which can mean consensual as well as compulsory transfer and
if the high and noble purpose of the Constitution to secure that independence of the
superior Judiciary by insulating it from all forms of executive control or interference
is to be achieved, the word 'transfer" must be read in the limited sense of consensual
transfer".
- The majority opinion of the Court emerged that "a High Court Judge cannot be
transferred as a matter of punishment, as for example, for the views which he bona
fide holds and that his transfer, being conditioned by the requirements of public
interest, cannot be effected for an extraneous purpose"
- Finally it was held that consent of the Judge to be transferred has to be taken, "not so
much a constitutional necessity but as a matter of courtesy in view of high position
 that is held by him. But there may be cases where, if the Judge does not consent and
the public interest compels, the power under Article 222 can be exercised."

Seven Judge Constitution Bench in S.P. Gupta v. Union of India [1981 Supp SCC 87.] (1st
Judges case).

- The major issues discussed and decided by the Court included power to appoint and
transfer High Court Judges. All the seven Judges delivered their separate opinions
after due deliberations.
- Following are the significant outcome that has emerged from the majority view of the
Judges in S.P. Gupta Case (1st Judges case). APT PS
1. Appointment of Judges: It was unanimously decided that the power to
appoint Judges vests in Central Government and appointment must be made
after effective consultation.
2. Primacy of the President: The majority of 4:3 decided that the opinion of
Chief Justice does not enjoy primacy over the other constitutional
functionaries. What is required under Article 217(1)(Talks about appointment
of HC judges) is only consultation and not concurrence of the Chief Justice
of India. "The President has, however, a right upon consideration of all
relevant facts to differ from the other constitutional functionaries for cogent
reasons and take a contrary view".
3. Transfer of Judges: Unanimous opinion emerged that transfer of a Judge
must be in public interest, Transfer of a Judge from one High Court to another
must not be by way of punishment.
4. Prior consent of the Judge: All the Judges, except Bhagwati, J. held-to
transfer a Judge of High Court, prior consent of the Judge is not necessary.
5. Seed of Collegium: Bhagwati, J. in his separate opinion observed
"There must be collegium to make recommendation to the President in regard
to appointment of a Supreme Court or High Court Judge. The recommending
authority should be more broad based and there should be consultation with
wider interests".
However, the aforesaid opinion of Bhagwati, J. was not supported by other
Judges of the bench.
The question of the process of appointing the Supreme Court Judges came to be considered
by the Supreme Court in S.C. Advocates on Record Association v Union of India, (1993) 4
SCC 441 [2ND Judges Case]
- A public interest writ petition was filed in the Supreme Court by the Lawyers'
Association raising several crucial issues concerning the Judges of the Supreme Court
and the High Courts.
- The petition was considered by a bench of nine Judges.
- The Court considered the question of the primacy of the opinion of the Chief Justice
of India in regard to the appointment of the Supreme Court Judges.
- The Court emphasized that the question has to be considered in the context of
achieving "the constitutional purpose of selecting the best" suitable for composition of
the Supreme Court "so essential to ensure the independence of the judiciary, and,
thereby, to preserve democracy,"
- Referring to the 'consultative process envisaged in Art. 124(2) for appointment of the
Supreme Court Judges, the Court emphasized that this procedure indicates that the
Government does not enjoy 'primacy' or "absolute discretion" in the matter of
appointment of the Supreme Court Judges
- The Court has pointed out that the provision for consultation with the Chief Justice
was introduced because of the realisation that the Chief Justice is best equipped to
know and assess the worth of the candidate and his suitability for appointment as a
Supreme Court Judge, and it was also necessary to eliminate political influence,
- The Court has also emphasized that the phraseology used in Art. 124(2) indicates that
it was not considered desirable to vest absolute discretion or power of veto in the
Chief Justice as an individual in the matter of appointments so that there should
remain some power with the Executive to be exercised as a check, whenever
necessary.
- Thus, in the matter of appointment of a Supreme Court Judge, the primary aim ought
to be to reach an agreed decision taking into account the views of all the consultees
giving the greatest weight to the opinion of the Chief Justice. When decision is
reached by consensus, no question of primacy arises. (Collegium point)
- Only when conflicting opinions emerge at the end of the process, the question of
giving primacy to the opinion of the Chief Justice arises, "unless for very good
reasons known to the executive and disclosed to the Chief Justice of India, that
appointment is not considered to be suitable."
- The Court has further clarified that "the primacy of the opinion of the Chief Justice of
India" is, in effect. "primacy of the opinion of the Chief Justice of India formed
collectively, that is to say, after taking into account the views of his senior
colleagues who are required to be consulted by him for the formation of his
opinion".
- Emphasizing upon this aspect further, the Court has said that the principle of non-
arbitrariness is an essential attribute of the Rule of Law and is all pervasive
throughout the Constitution.
- An adjunct of this principle is "the absence of absolute power in one individual in
any sphere of constitutional activity.
- Therefore, the meaning of the "opinion of the Chief Justice" is "reflective of the
opinion of the judiciary" which means that "it must necessarily have the element of
plurality in its formation"
- The final opinion expressed by the Chief Justice is not merely his individual opinion
but "the collective opinion formed after taking into account the views of some other
Judges who are traditionally associated with this function"
- The Court also laid down the following propositions in relation to the appointment of
the Supreme Court Judges:
1. Initiation of the proposal for appointment of a Supreme Court Judge must be
by the Chief Justice.
2. In exceptional cases alone, for stated and cogent reasons, disclosed to the
Chief Justice, indicating that the person who was recommended is not suitable
for appointment, that appointment recommended by the Chief Justice of India
may not be made. However, if the stated reasons are not accepted by the Chief
Justice and other Supreme Court Judges who have been consulted in the
matter, on reiteration of the recommendation of the Chief Justice of India, the
appointment should be made as a healthy convention.
3. No appointment of any Judge to the Supreme Court can be made by the
President unless it is in conformity with the final opinion of the Chief Justice
formed in the manner indicated above.
4. As the President acts on the advice of the Council of Ministers in the matter of
appointment of a Supreme Court Judge, the advice of the Council of Ministers
is to be given in accordance with Art. 124(2) as interpreted by the Supreme
Court.
 5. All consultation with everyone involved, including all the Judges consulted,
must be in writing. Expression of opinion in writing is an in-built check on
exercise of the power, and ensures due circumspection.
6. Appointment to the office of Chief Justice of India ought to be of the
senior-most Judge of the Supreme Court considered fit to hold the office.
"The provision in Art. 124(2) enabling consultation with any other Judge is to
provide for such consultation, if there be any doubt about the fitness of the
senior-most Judge to hold the office, which alone may permit and justify a
departure from the long-standing convention", ie., to appoint the senior-most
Supreme Court Judge to the office of the Chief Justice of India.
7. "Inter se seniority among Judges in their High Court and their combined
seniority on all India basis" should be "kept in view and given due weight
while making appointments from amongst High Court Judges to the Supreme
Court. Unless there be any strong cogent reason to justify departure, that order
of seniority must be maintained between them while making their appointment
to the Supreme Court."
- Clarifying certain points arising out of the above judgment, the Supreme Court has
delivered an advisory opinion on a reference made by the President" under Art. P143.

In re Special Reference No. 1 of 1998, (1998) 7 SCC 739 [3rd Judges Case]
In this opinion, the Court has laid down the following propositions in regard to the
appointment of the Supreme Court Judges:
1. In making his recommendation for appointment to the Supreme Court, the Chief
Justice of India ought to consult four senior-most puisne Judges of the Supreme
Court. Thus, the collegium to make recommendation for appointment should consist
of the Chief Justice and four senior-most puisne Judges.
2. The opinion of all members of the collegium in respect of each recommendation
should be in writing.
3. The views of the senior-most Supreme Court Judge who hails from the High
Court from where the person recommended comes must be obtained in writing for
the consideration of the collegium.
4. If the majority of the collegium is against the appointment of a particular person,
that person shall not be appointed. The Court has gone on to say that "if even two of
the Judges forming the collegium express strong views, for good reasons, that are
 adverse to the appointment of a particular person, the Chief Justice of India would not
press for such appointment."
5. The following exceptions have now been engrafted on the rule of seniority among
the High Court Judges for appointment to the Supreme Court:
(a) A High Court Judge of outstanding merit can be appointed as a Supreme
Court Judge regardless of his standing in the seniority list. "All that needs to
be recorded when recommending him for appointment is that he has
outstanding merit,
(b) A High Court Judge may be appointed as a Supreme Court Judge for "good
reasons" from amongst several Judges of equal merit, as for example, the
particular region of the country in which his parent High Court is situated is
not represented on the Supreme Court Bench.

Amendments to constiution after the 3 judge case:

● On 31 December 2014, the parliament enacted the Constitution (Ninety-ninth
Amendment) Act, 2014 making provision for establishment of the National Judicial
Appointments Commission (NJAC).
● Through this amendment a new article i.e. 124A was inserted in the Constitution apart
from other alterations in the Constitution.
● The NJAC was designed to replace the collegium system that had emerged as a
controversial system for appointments and transfers of the Judges of superior courts.
● The NJAC envisaged a six member body consisting of CJI, two other senior
Judges of the Supreme Court next to the CJI, the Union Law minister and two
eminent persons.
● The NJAC was entrusted with the function of recommendation of 'able persons with
integrity' for appointment as CJI, Judges of Supreme Court, Chief Justices of High
Courts and other Judges of High Courts. The task of making recommendation for
transfer of High Court Judges including chief justices of High Courts was also
entrusted on NJAC
● The National Judicial Appointments Commission Act, 2014 [ Act No. 48, 31st Dec.
2014.] (NJAC Act): The NJAC Act was enacted by the Parliament of India and was
purported to regulate the procedure to be followed by the National Judicial
Appointments Commission in the process of recommending persons for appointments
and transfers of Judges belonging to the superior courts.
In Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1 (4th
Judges case) by a split opinion of 4:1, 99th amendment to the Constitution was declared
violative of the basic structure of the Constitution of India.
- The NJAC Act, 2014 which emerged from 99th amendment was also held invalid.
The judgment of the Supreme Court was based on the concept of 'Basic Structure' of
the Constitution as enunciated in Kesavananda Bharati case
- The Court Pronounced that the basic structure of the Constitution can never be
violated by making amendments in the Constitution. As per majority the 99th
Constitution Amendment adversely affects the basic structure of the Constitution by
introducing changes which are substantive in nature with respect to appointment of
Judges to the Supreme Court and the High Courts by rewriting Article 124 and Article
217.
- The changes, in the opinion of the Court, "seriously compromised the
independence of the judiciary" and therefore, the 99th Constitution Amendment is
unconstitutional.

JURISDICTION OF SC

Article 131 - Original jurisdiction - Article 131 defines the exclusive and the original
jurisdiction of the Supreme Court. A court has original jurisdiction when it has authority to
hear and determine a case in the first instance. In a federal or a quasi-federal structure, which
the Indian Constitution sets up disputes may arise between the Government of India and
one or more States, or between govt of india and 2 or more states on one side and 1 or
more states on other side, or between two or more States.
The article imposes two limitations on the exercise of the original jurisdiction by the Supreme
Court first as to the party, and second as to the subject-matter.
(1) Parties.-There must be an inter-State dispute, ie the dispute must be between the units of
the Union or between the Union and any one or more of the States, or between the Union and
any State or States on one side and one or more States on the other. In State of Karnataka v.
Union of India", the court had the occasion to consider the nature, scope and applicability of
Article 131.
(2) Subject-matter.-The dispute must involve any question on which the existence or extent
of a legal right depends. A legal right is an interest recognised and protected by a rule of legal
justice-an interest the violation of which would be a legal wrong done to him whose interest it
is, and respect for which is a legal duty. What Article 131 requires is that the dispute must be
one which involves "a question" on which the existence or extent of "a legal right depends".

Disputes excluded from Article 131.-The exclusive jurisdiction conferred on the Supreme
Court under this article is subject to the other provisions of the Constitution. In the following
matters, the exclusive jurisdiction of the Supreme Court is excluded by the Constitution: The
proviso to Article 131 declares that the jurisdiction of the Supreme Court does not extend to a
dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar
instrument which, having been entered into or executed before the commencement of the
Constitution, continues in operation after such commencement, or which provides that the
jurisdiction shall not extend to such a dispute. A dispute involving interpretation of these
documents has evidently been left within the exclusive discretion of the executive.

Writ Jurisdiction: The Constitution of India ensures that the Supreme Court is the guarantor
and protector of the fundamental rights of the citizens. Article 32 of the Constitution of India
empowers the Supreme Court to issue writs for enforcement of fundamental rights in the
country. The Supreme Court is empowered to issue the following types of writs, which
include :
● Habeas Corpus – You may have the body.
● Mandamus – We command.
● Prohibition – To prohibit
● Quo-Warrenton – What is your authority?
● Certiorari – To be certified.
The supreme court has original jurisdiction concerning writ jurisdiction, which confirms that
any aggrieved person can directly go to the supreme court, not necessarily by way of appeal.
About the Writ, The jurisdiction of the Supreme Court is not an exclusive power as the High
Courts can also issue writs in respect of the enforcement of fundamental rights.
Here we have to note that the Supreme Court can issue only writs for the enforcement of
fundamental rights and not for any other purpose, on the other hand, the High Courts can
issue writs for enforcement of fundamental rights as well as for other p TT to ⁵urposes. That
means the writ jurisdiction of the High Court is wider than the writ jurisdiction of the
Supreme Court.
Art. 132- 136 - Appellate Jurisdiction -
Article 132 - Appellate jurisdiction of Supreme Court in appeals from High Courts in
certain cases ( 1 ) An appeal shall lie to the Supreme Court from any judgment, decree or
final order of a High Court in the territory of India, whether in a civil, criminal or other
proceeding, if the High Court certifies under Article 134A that the case involves a
substantial question of law as to the interpretation of this Constitution.
(3) Where such a certificate is given, any party in the case may appeal to the Supreme Court
on the ground that any such question as aforesaid has been wrongly decided.
Explanation - For the purposes of this article, the expression final order includes an order
declaring an issue which, if decided in favour of the appellant, would be sufficient for the
final disposal of the case
- It deals with questions involving interpretation of the Constitution arising out of any
proceedings in a High Court-civil, criminal, or other proceeding. There are three
conditions for the grant of the certificate by the High Court under clause
- Firstly, the order appealed against should be a "judgment, decree final order
made by a High Court in a civil, criminal or other proceeding".
- Secondly, the case should involve a question of law as to the interpretation of
the Constitution. The word "involve" is important. It implies a considerable
degree of necessity. The mere circumstance that a question of law is raised in
a case would not justify the inference that the proposed appeal involves a
substantial question of law, unless it is necessary to decide the question of law
for a proper decision of the case.
- Thirdly, the question involved must be a substantial question of law. The
word "substantial" here means a question regarding which there is a
difference of opinion. A question will not be a substantial question when the
law on the subject has been finally and effectively decided by the Supreme
Court.

Article 133. Appeals in Civil matters - It deals with appeals to the Supreme Court from
decisions of High Courts in civil proceedings. For such appeal, the following conditions
must be fulfilled:
1. The decision appealed against must be a "judgment, decree or final order" of a High Court
in the territory of India.
2. Such judgment, decree or final order should be given in a civil proceeding
3. A certificate of the High Court to the effect that
a) the case involves a substantial question of law, and
b) in the opinion of the High Court, the said question needs to be decided by the Supreme
Court
Civil Proceedings - The expression covers all proceedings in which party asserts the
existence of a civil right conferred by the civil law or by statute, and claims relief for breach,
S.A.L. Narayan Row v. Ishwarlal Bhagwandas,

Art 134. Appeals in criminal matters.-A limited criminal appellate jurisdiction is conferred
upon the Supreme Court by Article 134. It is limited in the sense that the Supreme Court has
been constituted a court of criminal appeal in exceptional cases where the demand of
justice requires interference by the highest court of the land. There are two modes by
which a criminal appeal from any "judgment, final order or sentence" in a criminal
proceeding of a High Court can be brought before the Supreme Court:
1. Without a certificate of the High Court -
(a) An appeal lies to the Supreme Court if the High Court reverses the decision of
acquittal of the accused person and sentences him to [Link] it is established
that the High Court has applied the correct principles in reversing an order of
acquittal, the Supreme Court would not ordinarily interfere with the High Court's
order of conviction or reassess the evidence. The Supreme Court would only
examine whether the High Court has approached the question properly and
applied the principles correctly."
(b) If the High Court has withdrawn for trial before itself any case from any court
subordinate to its authority and has in such trial convicted the accused person
and sentenced him to death, an appeal shall lie to the Supreme Court from the order
of the High Court.

2. With certificate.-An appeal lies to the Supreme Court from any judgment, final order or
sentence in a criminal proceeding of a High Court, if the High Court certifies under Article
134-A that the case is a fit one for appeal to the Supreme Court
Under Art 134(2) entails that Parliament is empowered to enlarge the appellate jurisdiction
of the SC in regard to Criminal matters.
Art. 135 - Until Parliament by law otherwise provides, the Supreme Court shall also have
jurisdiction and powers with respect to any matter to which the provisions of Article 133 or
Article 134 do not apply if jurisdiction and powers in relation to that matter were exercisable
by the Federal Court immediately before the commencement of this Constitution under any
existing law

Art 136 - Articles 132 to 135 of the Constitution deal with appeals to the Supreme Court
which a person may avail of as a matter of right so long as the conditions specified in those
articles are satisfied. Under Article 136, one may appeal to the court only with its
permission or leave. But the power of the court to hear appeals in this article is much wider
and general. It vests in the Supreme Court plenary jurisdiction in the matter of entertaining
and hearing appeals by granting special leave against any judgment, decree, determination or
order, in any cause or matter, passed or made by any court or tribunal. Compared with the
provisions of Articles 132, 133 and 134, the jurisdiction conferred under Article 136 has the
following distinguishing features:
1. The power to grant special leave is not confined to judgments, decrees or final orders of
the High Courts. It can be granted even against the decisions of the lower courts such as of
Magistrates.
2. Appeals shall lie from orders or determinations of all courts or tribunals in the territory of
India, except those relating to armed forces.
3. There is no condition that the order of the court should be a final order. Hence, appeals
against interlocutory orders are permissible, But normally, an appellant is expected to
exhaust the other remedies provided in law.
5. The order or determination of a court or tribunal may be in any cause or matter, civil
criminal or otherwise.
6. No law making any determination of any court or tribunal final can limit the jurisdiction
of the court in Article 136."

Art 137 - Review Jurisdiction - Article 137 empowers the Supreme Court to review its own
judgments. The power is exercisable in accordance with, and subject to, the rules of the court
made under Article 145 or any law made by Parliament. The rules permit the review of a
judgment by the Supreme Court on the grounds mentioned in Order 47, Rule 1 CPC. The
power of review cannot, however, be used for the purpose of a fresh appeal in disguise.
Its purpose is to ensure that justice is not defeated and that errors leading to the miscarriage
of justice are remedied. Errors requiring review are those which are patent and apparent on
the face of record and are errors of inadvertence and not those that need to be fished out." In
criminal cases, review petition should be allowed in the rarest of cases considering the nature
of offence and its impact on society. (Lily Thomas v. UoI)

Art 143 - Advisory Jurisdiction - Normally the function of a court of law is to answer
questions of law or fact when properly raised before it in a dispute between the parties. This
article, however, confers a particular jurisdiction, commonly called the consultative or
advisory jurisdiction, on the Supreme Court to give its opinion on questions unconnected
with a pending case to President. A similar power was conferred on the Federal Court of
India by Section 213, Government of India Act, 1935. There has been considerable difference
of opinion amongst jurists and political thinkers as to the expediency of placing on the courts
an obligation to advise the executive on difficult questions of law. In spite of weighty
arguments to the contrary, the framers of the Constitution thought it expedient to confer
advisory jurisdiction upon the Supreme Court. Experience so far has proved them to be right.
Article 143 authorises the President to refer to the Supreme Court a question of law or
fact which in his opinion is of such a nature and of such public importance that it is
expedient to obtain its opinion upon it. The language of Article 143 is quite wide and there
is no condition that it is only in respect of matters falling within the powers, functions, and
duties of the President that it would be competent for him to frame questions for the advisory
opinion of the Supreme Court. In re: Special Courts Bill, 1978,," the question referred by the
President to the Supreme Court was whether the Special Courts Bill, 1978, or any of its
provisions, if enacted, would be constitutionally invalid. In this case the extent and scope of
Art 143(1) was discussed.

Article 142 - Enforcement of decrees and orders of Supreme Court and unless as to
discovery, etc
( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such
order as is necessary for doing complete justice in any cause or matter pending before it, and
any decree so passed or orders so made shall be enforceable throughout the territory of India
in such manner as may be prescribed by or under any law made by Parliament and, until
provision in that behalf is so made, in such manner as the President may by order prescribe
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court
shall, as respects the whole of the territory of India, have all and every power to make any
order for the purpose of securing the attendance of any person, the discovery or
production of any documents, or the investigation or punishment of any contempt of
itself
 JURISDICTION OF HC

Writ Jurisdiction:
1. Public law remedy of immense scope.- Article 226 of the Constitution confers a
power on all the High Courts of India which they did not enjoy before the
commencement of the Constitution.
- It enables them to issue to any person or authority, including in appropriate
cases any government, orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, for the
enforcement of any of the rights conferred by Part III and "for any other
purpose", L.e. for the enforcement of any other legal right.
- The power conferred on the High Court under Article 226(1) can, in a proper
case, be exercised even against the legislature. [In re Power, Privileges and
Immunities of State Legislatures, AIR 1965 SC 745]
- The language used in Article 226, as also in Article 32, is very wide and does
not confine the power of the High Courts to the issuing of prerogative writs
only. The power under this article extends to the issuing of "directions, orders
or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, or any of them". The use of the
 expression "nature", indicates that the scope of the prerogative writs is wider
in India than in England.
- The High Courts can also issue directions, orders or writs other than the
prerogative writs.
- The High Courts are also enabled to mould the reliefs to meet the peculiar and
complicated requirements of this country.
2. Territorial extent of writ jurisdiction.- By clause (1) of Article 226, a twofold
territorial limitation has been placed on the power of the High Courts to issue writs.
- Firstly, the power is to be exercised "throughout the territories in relation to
which it exercises jurisdiction", i.e. writs issued by the court cannot run
beyond the territories subject to its jurisdiction.
- Secondly, the person or authority to whom a High Court issues such a writ
must be "within those territories".
- It clearly implies that they must be amenable to its jurisdiction either by
residence or location within those territories.
- In Election Commission v. Saka Venkata Subba Rao, (1953) 1 SCC 320 the
respondent had applied to the Madras High Court under Article 226 for a writ
restraining the Election Commission, a statutory authority constituted by the
President, having its office permanently located at New Delhi, from inquiring
into his alleged disqualification for membership of the Assembly. On appeal,
the Supreme Court held that the High Court had no power to issue a writ to the
Election Commission which had its office permanently located in New Delhi.
It was pointed out by the court that the mere functioning of a tribunal or
authority, permanently located elsewhere, within the territorial limits of the
High Court is not sufficient to invest the High Court with jurisdiction under
Article 226 to issue a writ. Nor was the accrual of the cause of action within
the territorial limits of the jurisdiction of the High Court sufficient for
investing the High Court with jurisdiction under Article 226 to issue a writ.
;.Accordingly, no High Court, other than the Punjab High Court," which had
the jurisdiction over Delhi, could issue a direction, order or writ to the Central
Government because the seat of the Government of India was located in New
Delhi.
The Law Commission recommended the removal of this anomaly. The 15th
Amendment to the Constitution, 1963, accordingly added clause (2) which
 permits the High Courts within whose jurisdiction the cause of action in
whole or in part arises, to issue directions, orders or writs to any government
or authority. notwithstanding that the authority or the government is located
outside their territorial jurisdiction. After the amendment, therefore, the
position is that a government or authority can be directed by the High Court
within whose jurisdiction it is located and also by a High Court within whose
jurisdiction the cause of action in whole or in part arises.
A High Court within whose jurisdiction whole or part of the cause of action
has arisen is not justified in declining to hear a matter on the ground that the
matter in issue could be more effectively dealt with by another High Court.
3. Discretionary remedy- The powers under Article 226 confer a discretion of a most
extensive nature on the High Courts.
- But the very vastness of the powers conferred on the High Court imposes
on it the responsibility to use them with circumspection. Accordingly, the
High Court will necessarily exercise the jurisdiction in accordance with
judicial considerations and well-established principles.
- Any exercise of jurisdiction based on irrelevant or extraneous considerations
shall be invalid.
- The exercise of the power under Article 226 being in the area of public law it
is difficult to lay down clear and fine principles for its exercise because
ultimately the courts have to be guided by what is fair and just in the
circumstances of the case. Yet they have to keep it within the parameters of its
genesis as a supervisory power instead of appellate power."
- In the exercise of the power under Article 226, the courts do not interfere in
the policy decisions of the government unless they are clearly inconsistent
with the Constitution and laws. [TISCO Ltd. v. Union of India, (1996) 5
SCC 709]
- Similarly, unless any law is violated, the court ought not to interfere in any
matter even if people are agitating against it. [Amitabh Bhacjan Corporation
Ltd. v. Mahila Jagran Manch, (1997) 7 SCC 91]
4. Alternative remedy.- The remedy in Article 226 is a discretionary remedy and the
High Court has always the discretion to refuse the grant of any writ if it is satisfied
that the aggrieved party can have an adequate remedy elsewhere
 - The remedies under Article 226 should not be permitted to be utilised as
substitutes for ordinary remedies.
- All the High Courts accordingly agree that writs or directions under Article
226 should ordinarily be not issued where an equally efficient and adequate
alternative remedy, exists, unless there is any exceptional reason for dealing
with the matter under the writ jurisdiction.
- In N. T. Veluswami Thevar v. G. Raja Nainar, AIR 1959 SC 422, it was held
that where the statute provides a right of appeal against a decision of the
Election Tribunal to the High Court, it would be a proper exercise of
discretion to decline to interfere with interlocutory orders passed by the
tribunal.
- Firm Hari Pd. V. STO, AIR 1959 All 246, the Allahabad High Court refused
to issue a writ where the aggrieved assessee had a remedy against the
assessment made by the Sales Tax Officer by way of appeal to the appellate
authority.

5. Delay. - There is no prescribed period of limitation nor do the provisions of the

Limitation Act apply to a petition under Article 226, but inordinate delay in invoking
the jurisdiction of the High Court may be a good ground for declining to grant relief.
- If the delay could satisfactorily and properly be explained, the High Court
would not refuse the remedy to the petitioner. If the wrong complained of is a
continuing wrong, it has an important bearing in considering the question of
delay.
6. Suppression of facts - If the applicant for a writ under Article 226 is guilty of the
suppression of material facts in his application and of an attempt to mislead the court
thereby, his petition will be rejected, and the court should refuse to consider it on
merits."
- In Hazari Lal Bhanna Mal v. State of H.P., AIR 1953 HP 41, the petitioner
made a deliberate misstatement of facts in his writ petition in order to mislead
the High Court and on the basis of wrong allegations succeeded in obtaining a
rule nisi from the court prohibiting the State from taking certain action. The
court held that this by itself was a sufficient ground for rejecting the writ
petition.
 7. Futile writ.- If the writ applied for is not likely to serve any useful purpose, the court
may in its discretion reject the application on this ground.
- In Ram Pratap v. Revenue Minister, AIR 1953 Raj. 111, the applicant
applied for a writ of certiorari against the order of the Revenue Minister of the
State directing the Collector to make a reference under Section 8. Land
Acquisition Act, 1894. The court held that though the Revenue Minister had
no jurisdiction to make the impugned order and should have left the parties to
apply to the High Court for a writ to the Collector, the actual order in the case
was not to be interfered with, for, if the party had come to the High Court, he
would only have got that relief which had been given to him under the
directions given by the Revenue Minister.
8. Disputed questions of fact- The proceedings under Article 226 are of a summary
nature and are not suitable for agitation of disputed questions of fact.
- Accordingly, it has been held that where the rights claimed by the applicant
cannot be conveniently determined in such summary proceedings the High
Court, in exercise of its discretion, shall refuse to interfere by a writ under
Article 226.
9. Dismissal in limine.- Under Article 226, the High Court may decline to entertain a
writ petition if it is found to be making a claim on grounds which are frivolous,
reckless, vexatious, without substance, or prima facie unjust.
- However, a writ petition should not be dismissed in limine, if an action of a
public authority is questioned on grounds of its being unlawful, high-handed,
arbitrary or unjust.
10. Joinder of parties - A petition under Article 226 ought not to be heard without
making party the persons to be affected by the decision of the High Court. In case the
number of such persons is too large, they must be represented by someone in
representative capacity.

Art 227 - Supervisory Jurisdiction - This article confers on the High Court the power of
superintendence over the courts and tribunals in the State or within its jurisdiction. The power
of superintendence conferred by Article 227 is in addition to the power conferred upon the
High Courts to control inferior courts or tribunals through writs under Article 226. It is, in
some ways, wider than the power and jurisdiction under Article 226. The supervisory
jurisdiction extends to keeping the subordinate tribunals within the limits of that authority
and ensuring that they obey the law." This power is also in addition to the powers of revision
under any legislation. However, it is a supervisory power and has to be exercised as such,
distinct from appellate power.