MODULE 1:

Introduction and Basic

Information about
Indian Constitution

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Introduction
The Constitution of India is the supreme law of India. It frames fundamental political principles,
procedures, practices, rights, powers, and duties of the government. It imparts constitutional
supremacy and not parliamentary supremacy, as it is not created by the Parliament but, by a
constituent assembly, and adopted by its people, with a declaration in its preamble. Parliament
cannot override it.
The world’s longest constitution is the Indian’s constitution. At its commencement, it had 395
articles in 22 parts and 8 schedules. It consists of approximately 145,000 words, making it the
second largest active constitution in the world. Currently, it has a preamble, 25 parts with 12
schedules, 5 appendices, 448 articles, and 105 amendment

History
The constitution of India was adopted on the 26th of November in the year 1949. However, it came
to effect on the 26th of January, 1950. 26th of January is celebrated as the Republic Day of India.
It was adopted by the Constituent Assembly. Dr. B. R. Ambedkar, the chairman of the Drafting
Committee, is widely considered to be the architect of the Constitution of India. After, the adoption
of the constitution, the Union of India became the contemporary and modern Republic of India.

What is Constitution?
A constitution is a set of fundamental principles or precedents of a particular entity that shall help
in understanding how it is supposed to be governed. The constitution is a set of fundamental laws
that the government, as well as any individual, shall follow. It offers a way to govern a country.
These fundamental laws or principles are written in a document, and that is why it is called the
‘Written Constitution’. It helps in demonstrating the social, political structure of a country. It also
includes the legal entity of the nation. It is the primary and prime law of the country. It is usually
sketched by the government, and in recent years, many nations have altered their constitution,
which is uncommon but needed.
In specific terms, Constitution is referred to defined as
1. Basic Law of the Nation
2. A system that integrates and collaborates the organization and individual norms

It is a structure that the government must follow, and so do the common man. The foundation of
the government is set by the constitution. The collective rights and freedom of individuals are
offered by the constitution, and everyone must follow the law.

What is Constitutionalism?
Constitutionalism is the governing law that helps regulate the functionality of the government. As
such, constitutionalism sets the standards of actions for the government. It indeed sets limitations
to the government. Constitutionalism defines the action of a government as legitimate or not. No
government shall work beyond the principles of constitutionalism and, if it does so, is considered
invalid. One needs to understand that having the constitution does not guarantee to set
constitutionalism. It is the other way around. A nation must have the governing laws for the
government to have the constitution set. Also, the country that has a constitution and not have
constitutionalism makes it vulnerable as the rules can be broken at any time.
Basic Features of Constitutionalism are given below:
1. Popular Sovereignty
2. Separation of Powers
3. Responsible and Accountable Government
4. Rule of Law
5. An independent judiciary
6. Respect for individual rights
7. Respect for self-determination
8. Civilian control of the military
9. Police governed by law and judicial control

As such, the concept of constitutionalism help restores peace in the nation. Imagine, without that,
the government can act on their own without any governing authority to question them. Even
questioned, there is no law to say that the action was wrong. This is widely avoided in the nations
that have strong constitutionalism that puts limitations on the government, and the same shall be
adhered to by any government that is formed.

Main Differences between Constitution and Constitutionalism

1. The main difference between Constitution and Constitutionalism is that the constitution is a
written document while constitutionalism is not.
2. The constitution is the supreme law of the country, while constitutionalism is the one that allows
it to function legitimately.
3. Constitutional amendments can be changed by the Government, while constitutionalism cannot
be changed.
4. The non-existence of a constitution can still have the company thrive, while the non-existence
of constitutionalism shall ruin the country as there is no governing law for the government in
power.
5. Constitution is the rules and regulation set for the structure of the government and society, while
constitutionalism sets the limitation to the government itself.

Salient features of Indian Constitution

Lengthiest written constitution

• Constitution can be classified into written constitution such as that of America or

unwritten constitution such as that UK.
 • The constitution of India is a written constitution which happens to be the
lengthiest written constitution in the world.
• It is comprehensive, elaborate and a detailed document

Drawn from various sources

• It has borrowed most of its provisions from the constitution of various other
countries as well as from the Government of India act, 1935. Ex: independ ence of
judiciary from USA, Fundamental Rights from USA etc
• Though it is borrowed, the Indian constitution-makers made sure the borrowed
features were made suitable to Indian conditions. Ex: Though we borrowed cabinet
form of governance from UK, the cabinet is not all-supreme as in the case of UK.

Preamble of the constitution

• The Preamble consists of the ideals, objectives and basic principles of the
Constitution.
• The salient features of the Constitution have developed directly and indirectly
from these objectives which flow from the Preamble
• It asserts India to be a Sovereign Socialist Secular Democratic Republic and a
welfare state committed to secure justice, liberty and equality for the people and
for promoting fraternity, dignity the individual, and unity and integrity of the
nation.
• The Preamble is the nature of Indian state and the objectives it is committed to
secure for the people.

Democratic system

• The authority of the government rests upon the sovereignty of the people. The
people enjoy equal political rights.
• Free fair and regular elections are held for electing governments

India is a republic

• The Preamble declares India to be a Republic.

• India is not ruled by a monarch or a nominated head of state. India has an elected
head of state (President of India) who wields power for a fixed term of 5 years.
• After every 5 years, the people of India indirectly elect their President.

Union of states

• Article I of the Constitution declares, that “India that is Bharat is a Union of

States.”
Fundamental Rights and duties:

• The Constitution of India grants and guarantees Fundamental Rights to its citizens.
• The constitution of India confirms the basic principle that every individual is
permitted to enjoy certain basic rights and part III of the Constitution deals with
those rights which are known as fundamental right.
• The Six FR include- Right to Equality; Right to Freedom; Right Against
Exploitation; Right to Freedom of Religion; Cultural and Educational Rights and
Right to Constitutional Remedies (Art. 32).
• The fundamental rights are justiciable and are not absolute. Reasonable constraints
can be imposed keeping in view the security-requirements of the state.
• A new part IV (A) after the Directive Principles of State Policy was combined in
the constitution by the 42nd Amendment, 1976 for fundamental duties.

Directive Principles of State Policy:

• A unique aspect of the Constitution is that it comprises of a chapter in the

Directive Principles of State Policy.
• These principles are in the nature of directives to the government to implement
them to maintain social and economic democracy in the country.

Parliamentary System:

• The Constituent Assembly decided to espouse Parliamentary form of government

both for the Centre and the states.
• In Indian parliamentary system, distinction is made between nominal and real
executive head.
• The Council of Ministers is responsible before the Lok Sabha. There are close
relations between executive and legislature.

Federal structure of government:

• A federal state is a state where a country is divided into smaller regions and the
government is functioning at two levels
• The Indian Constitution has envisaged a federal structure for India considering the
geographical vastness and the diversity of languages, region, religion s, castes, etc.
• Written Constitution, supremacy of the Constitution, division of powers between
Union and States, bicameral Legislature, independent Judiciary, etc. are the
features of Indian federation.

Universal adult franchise

• All men and women enjoy an equal right to vote. Each adult man and woman
above the age of 18 years has the right to vote.
• All registered voters get the opportunity to vote in elections.
Single integrated State with Single Citizenship:

• India is the single Independent and Sovereign integrated state.

• All citizens enjoy a common uniform citizenship.
• They are entitled to equal rights and freedoms, and equal protection of the state.

Integrated Judicial system

• The Constitution provides for a single integrated judicial system common for the
Union and the states.
• The Supreme Court of India works at the apex level, High Courts at the state level
and other courts work under the High Courts.

Independent Judiciary

• It is necessary to secure the philosophical foundations of the rule of law and

democracy
• Firstly, the Constitution makers created a separate Judiciary independent of
Legislature and Executive.
• Secondly, the Constitution has ensured complete independence of Judiciary in the
matters of administration and finances.

Amending the Constitution of India:

• Amending the Constitution of India is the procedure of making modifications to

the nation’s fundamental law or supreme law.
• The procedure of amendment in the constitution is laid down in Part XX (Article
368) of the Constitution of India.
• This procedure guarantees the sanctity of the Constitution of India and keeps a
check on uninformed power of the Parliament of India.

Judicial Review:

• The judiciary has significant position in Indian Constitution and it is also made
independent of the legislature and the executive.
• The Supreme Court of India stands at the peak of single integrated judicial system .
• It operates as defender of fundamental rights of Indian citizens and guardian of the
Constitution.

Secularism

• In no other country of the world so many religions co-exist as in India. In view of

such diversity the Constitution guarantees complete freedom of religion to all.
• The citizens of our country are free to follow any religion and they enjoy equal
rights without any distinction of caste, creed, religion or sex.
 • The State does not discriminate against anyone on the ground of his religion, nor
can the State compel anybody to pay taxes for the support of any particular
religion.
• Everybody is equally entitled to freedom of conscience and the right freely to
profess, practice and propagate religion.
• The Constitution regards religion as a private affair of individuals and prohibits
the State from interfering with it. The Constitution also grants various cultural
rights to minorities.

Independent bodies

• Constitution has setup various independent bodies and vested them with powers to
ensure the constitutional provisions. Ex: Election Commission, CAG, Finance
Commission
• These institutions have been provided with security of tenure, fixed service
conditions etc to ensure that they are not susceptible to the whims of either the
legislature or the executive.

Emergency provisions

• Indian constitution contains elaborate provisions to deal with those challenges that
pose a threat to the country’s security and unity.

Three-tier government

• Through 73 rd and 74 th amendment act, we have rural and urban local bodies as an
additional constitutional tier of the government structure.

Historical Background of the Constituent Assembly of India

On the basis of the framework provided by the Cabinet Mission*, a Constituent Assembly was
constituted on 9th December, 1946. The Constitution making body was elected by the Provincial
Legislative Assembly constituting of 389 members who included 93 from Princely States and
296 from British India.

The seats to the British Indian provinces and princely states were allotted in proportion of their
respective population and were to be divided among Muslims, Sikhs and rest of the communities.
All sections of the Indian society got representation in the Constituent Assembly in spite of
limited suffrage.

The first meeting of the Constituent Assembly took place on December 9, 1946 at New Delhi with
Dr Sachidanand Sinha being elected as the interim President of the Assembly. However, on
December 11, 1946, Dr. Rajendra Prasad was elected as the President and H.C. Mukherjee as the
Vice-President of the Constituent Assembly.
Note: *Cabinet Mission was a high-powered mission sent in February 1946 to India by the Atlee
Government (British Prime Minister.) The mission had three British cabinet members – Pethick
Lawrence, Stafford Cripps, & and A.V. Alexander. The Cabinet Mission’s aim was to discuss the
transfer of power from British to Indian leadership.

Image: Various Committees of Constituent Assembly

Functions of the Constituent Assembly

1. Framing the Constitution.

2. Enacting laws and involved in the decision making process.

3. It adopted the National flag on July 22, 1947.

4. It accepted and approved India's membership of the British Commonwealth in May 1949.

5. It elected Dr. Rajendra Prasad as the first President of India on January 24, 1950.

6. It adopted the National anthem on January 24, 1950.

7. It adopted the National song on January 24, 1950.

Government of India Act, 1935

Background

• As the growing demands of populace led by Indian leader for constitutional

reforms in India intensified with progression in the British Rule, the evolving
administrative arrangements put in place by the British paved the way for a more
responsible government in India premised on the fact of maximum representation
of Indians
• India’s support to Britain in the First World War also aided in British
acknowledgement of the need for the inclusion of more Indians in the
administration of their own country.
o This formed the basis of the passing of the Government of India Act, 1935
by the British Parliament
• This legislation was the longest Act passed by the British Parliament after its
domination and overtaking of administrative control in India
• The Act was based on the facts and considerations of several experiences and
outcomes which, inter alia, include
o the Simon Commission Report
o the recommendations of the Round Table Conferences
o the White Paper published by the British government in 1933 (based on the
Third Round Table Conference
o the Report of the Joint Select Committees

Salient Features of the Government of India Act, 1935

A) All India Federation
It provided for the establishment of an All India Federation consisting of provinces and princely
states as units. The Act divided the powers between the Centre and units in terms of three
lists, Federal List (for Centre containing 59 items), Provincial List (for provinces
containing 54 items) and the Concurrent List (for both containing 36 items).
Residuary powers were given to the Viceroy. However, the federation never came into being as
the princely states did not join it.
B) Provincial Autonomy
It abolished diarchy in the provinces and introduced ‘provincial autonomy’ in its place.
The provinces were allowed to act as autonomous units of administration in their defined
spheres. Moreover, the Act introduced responsible governments in provinces which meant that
the governor was required to act with the advice of ministers responsible to the provincial
legislature
However, the Ministers were not absolutely free in matter of running their departments. As the
Governors continued to possess a set of overriding powers although such powers were not
exercised very often.
C) Bicameralism
The Act introduced bicameralism in six out of eleven provinces.
Thus, the legislatures of Bengal, Bombay, Madras, Bihar, Assam and the United Provinces were
made bicameral consisting of a legislative council (Upper House) and a legislative assembly
(Lower House) with certain restrictions on them Also, the Central Legislature was bicameral,
consisting of Federal Assembly and Council of States. The term of the assembly was five years
but it could be dissolved earlier also.
D) Diarchy at the Centre
The Act of 1935 abolished diarchy at the Provincial level and introduced it at the Centre.
Consequently, the federal subjects were divided into reserved subjects and transferred subjects.
Religious affairs, defence, administration of tribal areas and external affairs were included in
the reserved subjects. The Transferred subjects were to be administered on the advice of
ministers and the number of ministers could not exceed ten.
The Governor-General remained over all in charge of both the Reserved and Transferred
subjects. The idea of diarchy was imposed with the purpose of facilitating better administration
and the governor general was appointed to look after and coordinate among the two parts of the
government
E) Communal/Class Representation
The Act further extended the principle of communal representation by providing separate
electorates for depressed classes (scheduled castes), women and labourers (workers).
Further, under the Act the Muslims got 33 percent (1/3 of the seats) in the Federal Legislature
Other features
A) It abolished the Council of India, established by the Government of India Act of 1858. The
secretary of state for India was provided with a team of advisors.
B) It provided for the establishment of a Reserve Bank of India to control the regulation of
currency and credits of the country.
C) The franchise (voting rights) was extended further from 3% to 14% of the total population.
D) It provided for the establishment of a Federal Court, set up in 1937, which continued to
function till the establishment of the Supreme Court of India after the attainment of
independence (1950).
E) The Act also paved the way for reorganization of certain parts including the Sindh being
carved out of Bombay Presidency, split of Bihar and Orissa and the severance of Burma from
India.
Significance of the Act
1. The Government of India Act of 1935 marked the second milestone towards a completely
responsible government in India after the Act of 1919.
2. The Act of 1935 served some useful purposes by the experiment of provincial autonomy,
thus we can say that the Government of India Act 1935 marks a point of no return in the history
of constitutional development in India.
3. The Government of India Act 1935 curtailed the powers concentrated in the hands of the
Central Government and distributed it by ensuring that a decentralized form of government takes
shape in India
4. Separate electorates for women, although they had not asked for it, was quite good for
the advancement of women in the decision making process.
5. This Act was the first attempt to give the provinces an autonomous status by freeing them
from external interference.
6. The Act also holds great importance in the Indian history because it eventually culminated in
the fact of the Dominion Status which urged the need for Independence again in the minds of
the people.

Indian Independence Act of 1947

Introduction:
The Indian Independence Act, 1947, crucial because it enabled the transfer of power from the
Crown to India in an amicable manner, was passed in British Parliament on July 5 that year, and
received royal assent on July 18. A plan was formulated to split the British Indian colonies into
India and Pakistan by Viceroy of India Lord Louis Mountbatten and Prime Minister of Britain
Clement Attlee on June 3, 1947, after consultations with the main stakeholders — Indian
National Congress, the Muslim League and representatives of the Sikh community.
Salient features of Indian Independence Act 1947 are:
1. It declared India as an independent and sovereign state.
2. It provided for partition of India and creation of two new dominions- India and
Pakistan.
3. It abolished the position of secretary of state for India.
4. It abolished the office of viceroy and provided for each dominion, a governor-general,
who was to be appointed by the British King on the advice of the dominion cabinet .
5. It empowered the constituent assemblies of the two dominions to frame and adopt any
constitution for their respective nations and to repeal any act of the British parliament,
including the independence act itself.
6. The constituent assemblies were empowered to legislate for their respective dominions
till the new constitutions were drafted and enforced.
7. It granted the princely states the freedom to join either of the dominions or to remain
independent.
8. Governance of each dominion was to be conducted based on the provisions of the GoI
act, 1935.
9. British monarch could no longer ask for bills or veto them. However, this was reserved
for Governor-General.
10. Governor-General of the dominions were made to act on the aid and advice of the
council.
Evaluation of the features of act:
1. Hastened act: the lack of clarity on the border still has its repercussions today with
constant tussle between India and Pakistan. The same is the case with border on Chinese
side.
2. Jammu and Kashmir question: Jammu and Kashmir has been the bone of contention
even today.
3. Rise in communal feeling: Another unforeseen consequence of Partition was that
Pakistan’s population ended up more religiously homogeneous than originally
anticipated.
4. Suspicion: Indian Muslims are frequently suspected of harboring loyalties towards
Pakistan; non-Muslim minorities in Pakistan are increasingly vulnerable thanks to the so-
called Islamisation of life there since the 1980s.
Enforcement of the Constitution
1. The Constitution of India came into force on 26 January, 1950. On that day, the Assembly
ceased to exist, transforming itself into the Provisional Parliament of India until a new
Parliament was constituted in 1952.
2. The date of 26th January was chosen to commemorate the historical day as on this day in 1930
that Purna Swaraj day was celebrated and the tricolour flag of Indian independence was unfurled
following the resolution of the Lahore Session (December 1929) of the Indian National
Congress.
3. Some provisions of the Constitution pertaining to citizenship, elections, provisional
parliament, temporary and transitional provisions came into force on November 26, 1949 itself.
4. The remaining provisions (the major part) of the Constitution came into force on January 26,
1950. This day is referred to in the Constitution as the 'date of its commencement' and celebrated
as the Republic Day. 5. With the commencement of the Constitution, the Indian Independence
Act of 1947 and the Government of India Act of 1935, with all enactments amending or
supplementing the latter Act, were repealed.

Preamble to the Indian 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:

o Source of the Constitution

o Nature of Indian State
o Statement of its objectives
o 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 a sovereign, socialist, secular and democratic 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. Sovereignty means the independent authority of the State, not being subject to the
control of any other State or external power.
▪ 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.

o 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.

o 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.
Image: Preamble of India
 Fundamental Rights in India (Article 12-35)
The development of Fundamental Rights in India is heavily inspired by the United States Bill of
Rights. These rights are included in the constitution because they are considered essential for the
development of the personality of every individual and to preserve human dignity.
• Fundamental Rights are included in Part-III of the Indian constitution which is also known as the
Magna Carta of the Indian Constitution.
• These rights are called fundamental rights because they are justiciable in nature allowing persons
to move the courts for their enforcement, if and when they are violated.
Features of The Fundamental Rights
Some of the salient features of Fundamental Rights include:
• FRs are protected and guaranteed by the constitution.
• FRs are NOT sacrosanct or absolute: in the sense that the parliament can curtail them or put
reasonable restrictions for a fixed period of time. However, the court has the power to review the
reasonability of the restrictions.
• FRs are justiciable: The constitution allows the person to move directly to the Supreme Court
for the reinforcement of his fundamental right as and when they are violated or restricted.
• Suspension of Fundamental Rights: All the Fundamental Rights are suspended during National
Emergencies except the rights guaranteed under Articles 20 and 21.
• Restriction of Fundamental Rights: The Fundamental Rights can be restricted during military
rule in any particular area.

Six Fundamental Rights (Articles 12 to 35)

Under this section, we list the fundamental rights of India and briefly describe each of them.

1. Right to Equality (Articles 14 – 18)

Right to equality is one of the important fundamental rights of Indian constitution that guarantees
equal rights for everyone, irrespective of religion, gender, caste, race or place of birth. It ensures
equal employment opportunities in the government and insures against discrimination by the State
in matters of employment on the basis of caste, religion, etc. This right also includes the abolition
of titles as well as untouchability.

2. Right to Freedom (Articles 19 – 22)

Freedom is one of the most important ideals cherished by any democratic society. The Indian
Constitution guarantees freedom to citizens. The freedom right includes many rights such as:

• Freedom of speech
• Freedom of expression
• Freedom of assembly without arms
 • Freedom of association
• Freedom to practice any profession
• Freedom to reside in any part of the country
Some of these rights are subject to certain conditions of state security, public morality and decency
and friendly relations with foreign countries. This means that the State has the right to impose
reasonable restrictions on them.

3. Right against Exploitation (Articles 23 – 24)

This right implies the prohibition of traffic in human beings, beggar, and other forms of forced
labour. It also implies the prohibition of children in factories, etc. This Constitution prohibits the
employment of children under 14 years in hazardous conditions.

4. Right to Freedom of Religion (Articles 25 – 28)

This indicates the secular nature of Indian polity. There is equal respect given to all religions.
There is freedom of conscience, profession, practice and propagation of religion. The State has no
official religion. Every person has the right to freely practice his or her faith, establish and maintain
religious and charitable institutions.

5. Cultural and Educational Rights (Articles 29 – 30)

These rights protect the rights of religious, cultural and linguistic minorities, by facilitating them
to preserve their heritage and culture. Educational rights are for ensuring education for everyone
without any discrimination.

6. Right to Constitutional Remedies (32 – 35)

The Constitution guarantees remedies if citizens’ fundamental rights are violated. The government
cannot infringe upon or curb anyone’s rights. When these rights are violated, the aggrieved party
can approach the courts. Citizens can even go directly to the Supreme Court which can issue writs
for enforcing fundamental rights.

Fundamental Duties
How were the Fundamental Duties Incorporated?

▪ The idea of Fundamental Duties is inspired from the Constitution of Russia (erstwhile
Soviet Union).
▪ These were incorporated in Part IV-A of the Constitution by the 42nd Constitutional
Amendment Act, 1976 on the recommendations of the Swaran Singh Committee.
▪ Originally 10 in number, one more duty was added through the 86th Constitutional
Amendment Act, 2002.
o All the eleven duties are listed in Article 51-A of the Constitution (the sole Article
in Part-IV-A).
▪ Like the Directive Principles of State Policy, Fundamental duties are also non-justiciable
in nature.
What are the Listed Fundamental Duties?

▪ To abide by the Constitution and respect its ideals and institutions, the National Flag and
the National Anthem,
▪ To cherish and follow the noble ideals that inspired the national struggle for freedom,
▪ To uphold and protect the sovereignty, unity and integrity of India,
▪ To defend the country and render national service when called upon to do so,
▪ To promote harmony and the spirit of common brotherhood amongst all the people of
India transcending religious, linguistic and regional or sectional diversities and to renounce
practices derogatory to the dignity of women,
▪ To value and preserve the rich heritage of the country’s composite culture,
▪ To protect and improve the natural environment including forests, lakes, rivers and
wildlife and to have compassion for living creatures,
▪ To develop scientific temper, humanism and the spirit of inquiry and reform,
▪ To safeguard public property and to abjure violence,
▪ To strive towards excellence in all spheres of individual and collective activity so that the
nation constantly rises to higher levels of endeavour and achievement, and
▪ To provide opportunities for education to his child or ward between the age of six and
fourteen years (added by the 86th Constitutional Amendment Act, 2002).
What is the Significance of Fundamental Duties?

▪ Constant Reminder of Democratic Conduct:

o Fundamental Duties are intended to serve as a constant reminder to every citizen that
while the Constitution specifically conferred on them certain fundamental rights, it
also requires citizens to observe basic norms of democratic conduct and democratic
behaviour.
▪ Admonishes Against Anti-Social Activities:
o They serve as a warning to the people against the anti-social activities that
disrespect the nation like burning the flag, destroying public property or disturbing
public peace.
▪ Sense of Discipline and Commitment:
o These help in the promotion of a sense of discipline and commitment towards the
nation.
o They help in realising national goals by the active participation of citizens rather
than mere spectators.
▪ Help Determine Constitutionality of Law:
o It helps the Court in determining the constitutionality of the law.
o For instance, any law passed by the legislatures, when taken to Court for
constitutional validity of the law, if it is giving force to any Fundamental Duty,
then such law would be taken as reasonable.

Task for Students: Difference between Fundamental Rights and Fundamental Duties

Directive Principles of State Policy (DPSP)

Introduction

o Background: The source of the concept of Directive Principles of State Policy (DPSP) is
the Spanish Constitution from which it came in the Irish Constitution. The concept of
DPSP emerged from Article 45 of the Irish Constitution.
o Constitutional Provisions: Part IV of the Constitution of India (Article 36–51) contains
the Directive Principles of State Policy (DPSP).

o Article 37 of the Indian Constitution States about the application of the Directive
Principles.

o Fundamental Rights Vs DPSP:

o Unlike the Fundamental Rights (FRs), the scope of DPSP is limitless and it protects
the rights of a citizen and work at a macro level.

• DPSP consists of all the ideals which the State should follow and keep in mind
while formulating policies and enacting laws for the country.
o Directive Principles are affirmative directions on the other hand, Fundamental Rights
are negative or prohibitive in nature because they put limitations on the State.
o The DPSP is not enforceable by law; it is non-justiciable.
o It is important to note that DPSP and FRs go hand in hand.

o Classification of Principles: The Directive Principles are classified on the basis of

their ideological source and objectives. These are Directives based on:

o Socialist Principles
 o Gandhian Principles
o Liberal and Intellectual Principles

Directives based on Socialist Principles

▪ Article 38: The State shall strive to promote the welfare of the people by securing and
protecting a social order by ensuring social, economic and political justice and
by minimising inequalities in income, status, facilities and opportunities.
▪ Articles 39: The State shall in particular, direct its policies towards securing:

o Right to an adequate means of livelihood to all the citizens.

o The ownership and control of material resources shall be organised in a manner to
serve the common good.
o The State shall avoid concentration of wealth in a few hands.
o Equal pay for equal work for both men and women.
o The protection of the strength and health of the workers.
o Childhood and youth shall not be exploited.
▪ Article 41: To secure the right to work, to education and to public assistance in cases of
unemployment, old age, sickness and disability.
▪ Article 42: The State shall make provisions for securing just and humane conditions of
work and for maternity relief.
▪ Article 43: The State shall endeavour to secure to all workers a living wage and a decent
standard of life.

o Article 43A: The State shall take steps to secure the participation of workers in the
management of industries.
▪ Article 47: To raise the level of nutrition and the standard of living of people and to
improve public health.
Directives based on Gandhian Principles

▪ Article 40: The State shall take steps to organise village panchayats as units of Self
Government
▪ Article 43: The State shall endeavour to promote cottage industries on an individual or
cooperative basis in rural areas.

o Article 43B: To promote voluntary formation, autonomous functioning, democratic

control and professional management of cooperative societies.
▪ Article 46: The State shall promote educational and economic interests of the weaker
sections of the people particularly that of the Scheduled Castes (SCs), Scheduled Tribes
(STs) and other weaker sections.
▪ Article 47: The State shall take steps to improve public health and prohibit consumption of
intoxicating drinks and drugs that are injurious to health.
▪ Article 48: To prohibit the slaughter of cows, calves and other milch and draught cattle and
to improve their breeds.
Directives based on Liberal-Intellectual Principles

▪ Article 44: The State shall endeavour to secure for the citizen a Uniform Civil
Code through the territory of India.
▪ Article 45: To provide early childhood care and education for all children until they
complete the age of six years.
▪ Article 48: To organise agriculture and animal husbandry on modern and scientific lines.

o Article 48A: To protect and improve the environment and to safeguard the forests
and wildlife of the country.
▪ Article 49: The State shall protect every monument or place of artistic or historic interest.
▪ Article 50: The State shall take steps to separate judiciary from the executive in the public
services of the State.
▪ Article 51: It declares that to establish international peace and security the State shall
endeavour to:

o Maintain just and honourable relations with the nations.

o Foster respect for international law and treaty obligations.
o Encourage settlement of international disputes by arbitration.
Amendments in DPSP:

▪ 42nd Constitutional Amendment, 1976: It introduced certain changes in the part-IV of the
Constitution by adding new directives:

o Article 39A: To provide free legal aid to the poor.

o Article 43A: Participation of workers in management of Industries.K1M
o Article 48A: To protect and improve the environment.
▪ 44th Constitutional Amendment, 1978: It inserted Section-2 to Article 38 which declares
that; “The State in particular shall strive to minimise economic inequalities in income and
eliminate inequalities in status, facilities and opportunities not amongst individuals but also
 amongst groups”.

o It also eliminated the Right to Property from the list of Fundamental Rights.
▪ 86th Amendment Act of 2002: It changed the subject-matter of Article 45 and made
elementary education a fundamental right under Article 21 A.

Parliamentary System of Government

India chose a parliamentary form of government primarily because the constitution-makers were
greatly influenced by the system in England. Another reason the founding fathers saw was that the
parliamentary model would only work to accommodate the varied and diverse groups within our
population. Also, the strict separation of powers in the presidential system would cause conflicts
between the two branches, the executive and the legislature, which our newly-independent country
could ill-afford.

There are more parliamentary forms of government in the world than there are presidencies. In
this system, the parliament is generally supreme and the executive is responsible to the legislature.
It is also known as the Cabinet form of government, and also ‘Responsible Government’.

Features of the parliamentary system

1. 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.
2. Executive responsible to the legislature: The executive is responsible to the legislature.
There is a collective responsibility, that is, each minister’s responsibility is the
responsibility of the whole Council.
3. Dual executive: There are two executives – the real executive and the titular executive.
The nominal executive is the head of state (president or monarch) while the real executive
is the Prime Minister, who is the head of government.
4. Secrecy of procedure: A prerequisite of this form of government is that cabinet
proceedings are secret and not meant to be divulged to the public.
5. Leadership of the Prime Minister: The leader of this form of government is the Prime
Minister. Generally, the leader of the party that wins a majority in the lower house is
appointed as the PM.
6. Bicameral Legislature: Most parliamentary democracies follow bicameral legislature.
7. No 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.
Although India follows this system chiefly influenced by the British model, there are a few
differences between the Indian and British systems. They are:
 • In India, the PM can be from either the Rajya Sabha or the Lok Sabha. In Britain, the PM
will always be from the lower house, the House of Commons.
• In Britain, the speaker once appointed, formally resigns from his/her political party. In
India, the speaker continues to be a member of his/her party though he/she is expected to
be impartial in the proceedings.
• The concept of a shadow cabinet is absent in India. In Britain, the opposition forms a
shadow cabinet that scrutinises the actions and policies of the government. It also offers
alternative programmes.

Merits of Parliamentary System

The advantages of the parliamentary system are as follows:

• Better coordination between the executive and the legislature: Since the executive is a
part of the legislature, and 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 government. The parliament can check
the activities of the executive.
• 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.

Demerits of Parliamentary System

The disadvantages of the parliamentary system are as follows:

• No separation of powers: Since there is no genuine separation of powers, the legislature

cannot always hold the executive responsible. This is especially true if the government has
a good majority in the house. Also, because of anti-defection rules, legislators cannot
exercise their free will and vote as per their understanding and opinions. They have to
follow the party whip.
• Unqualified legislators: The system creates legislators whose intention is to enter the
executive only. They are largely unqualified to legislate.
• Instability: Since the governments sustain only as long as they can prove a majority in the
house, there is instability if there is no single-largest party after the elections. Coalition
governments are generally quite unstable and short-lived. Because of this, the executive
has to focus on how to stay in power rather than worry about the state of affairs/welfare of
the people.
 • Ministers: The executive should belong to the ruling party. This rules out the hiring of
industry experts for the job.
• 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.
• Control by the bureaucracy: Civil servants exercise a lot of power. They advise the
ministers on various matters and are also not responsible to the legislature.

Federal System of government

Introduction:
A federal government is one in which powers are divided between the national government and
the regional governments by the Constitution itself and both operate in their respective
jurisdictions
The federal features of the Constitution of India are:

• Dual Polity: The Constitution establishes a dual polity consisting the Union at the
Centre and the states at the periphery. Each is endowed with sovereign powers to
be exercised in the field assigned to them respectively by the Constitution
• Written Constitution: It specifies the structure, organisation, powers and
functions of both the Central and state governments and prescribes the limits
within which they must operate. Thus, it avoids the misunderstandings and
disagreements between the two
• Division of Powers: The Constitution divided the powers between the Centre and
the states in terms of the Union List, State List and Concurrent List in the Seventh
Schedule
• Supremacy of the Constitution
• The Constitution is the supreme (or the highest) law of the land. The laws
enacted by the Centre and the states must confirm to its provisions.
• Thus, the organs of the government (legislative, executive and judicial) at both the
levels must operate within the jurisdiction prescribed by the Constitution
• Independent Judiciary: The Constitution establishes an independent judiciary
headed by the Supreme Court to settle the disputes between the Centre and the
states or between the states

However, the India federal system of government has a power tilt towards the centre.

Strong Centre

o The Union List contains more subjects than the State List.
o The more important subjects have been included in the Union List .
o The Centre has overriding authority over the Concurrent List.
o Finally, the residuary powers have also been left with the Centre .
States Not Indestructible
The states in India have no right to territorial integrity. The Parliament can by unilateral action
change the area, boundaries or name of any state.
Flexibility of the Constitution

o The bulk of the Constitution can be amended by the unilateral action of the
Parliament, either by simple majority or by special majority
o Further, the power to initiate an amendment to the Constitution lies only
with the Centre.

No Equality of State Representation

The states are given representation in the Rajya Sabha on the basis of population.
Emergency Provisions
During an emergency, the Central government becomes all powerful and the states go into the
total control of the Centre. It converts the federal structure into a unitary one without a formal
amendment of the Constitution.
Parliament’s Authority Over State List

o The Parliament is empowered to legislate on any subject of the State List if

Rajya Sabha passes a resolution to that effect in the national Interest
o This means that the legislative competence of the Parliament can
be extended without amending the Constitution.

Veto Over State Bills

The governor is empowered to reserve certain types of bills passed by the state legislature for the
consideration of the President. The President can withhold his assent to such bills not only in the
first instance but also in the second instance.

Centre-State Relations
India is a union of states. The constitution of India has divided the legislative, executive and
financial powers between the centre and the states, which gives the constitution a federal
character whereas the judiciary is integrated into a hierarchical structure.

The centre-state relations are divided into three parts, which are mentioned below:

(A) Legislative Relations (Article 245-255)

Part XI of the Indian Constitution specifically deals with centre-state relations. It has been
bifurcated into legislative and administrative relations. Further, in Part XII, provisions related to
financial relations are laid down. All three categories have been discussed in detail hereafter.
Legislative relations

Articles 245 to 255 deal with legislative relations between the Union and the states i.e. the
Parliament and state legislatures. It discusses the extent of law-making powers given to the
Union and states. On analysing the provisions, it is evident that the Parliament clearly has
superseding powers as compared to state legislatures. The different provisions lay down the
subject matters on which they can legislate, the effect of inconsistency between state and
national law, residuary powers of the Parliament and many other provisions. It is this chapter that
provides for Schedule VII which deals with the Union List, State List and Concurrent List.

Administrative relations

Articles 256 to 263 deal with administrative relations i.e. Central Government and various state
governments. Though India is federal yet it has unitary features and thus in Article 256 itself, it
is stated that the state governments should ensure that they abide by the laws made by Parliament
and do not perform any executive or administrative function in contravention of the same.
The Sarkaria Commission urged for cooperative federalism in case of administrative relations
between the Centre and states to ensure better relations between the two. The same was
important since there often arises the situation of different parties working at the Central and
state levels which creates chaos and distrust thereby leading to inefficient administration.

Financial relations

Articles 264 to 293 of Part XII of the Constitution deal with financial relations between the
Centre and state. Since India is a federal country, it follows the separation of powers relating to
taxes and it is the duty of the Centre to allocate funds to the states. All such related provisions
have been covered herein. The power of the Centre and states to levy taxes has been mentioned
in Schedule VII. Further, it has many other provisions relating to levy and allocation of taxes by
centre and states, grants to states, surcharges etc. A very recent example of financial centre-state
relation is the Goods and Services Tax which is a dual structure tax. The tax is imposed and
collected by both the Centre and state and then is distributed between the Centre and states. To
simplify, CGST and SGST are received by Centre and state respectively and IGST is received by
the Centre and redistributed between states. This is a precise example of cooperative federalism
in the financial sphere.

Amendment of the Constitutional Powers & Procedure

▪ Article 368 in Part XX of the Constitution deals with the power of parliament to amend
the constitution and its procedures.
o It states that the Parliament may amend the Constitution by way of addition, variation
or repeal of any provision in accordance with the procedure laid down for the purpose.
 o However, the Parliament cannot amend those provisions which form the ‘basic
structure’ of the Constitution. This was ruled by the Supreme Court in
the Kesavananda Bharati case (1973).

▪ It provides for two types of amendments, that is, by a special majority of Parliament and
the special majority of parliament along with the ratification of half of the states
legislatures by a simple majority.
▪ Amendment of certain provisions of the Constitution requires amendment by a simple
majority of each house present and voting. These amendments are not deemed to be
amendments under Article 368.
What is a Simple Majority?

▪ A number of provisions in the Constitution can be amended by a simple majority of the

two Houses of Parliament outside the scope of Article 368.
▪ These provisions include
o Formation of new states and alteration of areas, boundaries or names of existing
states,
o Abolition or creation of legislative councils in states,
o Use of official language,
o Citizenship – acquisition, and termination,
o Elections to Parliament and state legislatures,
o Fifth Schedule – administration of scheduled areas and scheduled tribes,
o Sixth Schedule – administration of tribal areas.
What is a Special Majority?

▪ About:
o Under Article 368(2), Parliament can amend the Constitution by passing a Bill with
a special majority.
o Fundamental Rights and Directive Principles of State Policy (DPSP) are the two
most important provisions that can be amended by the special majority, but the
amendments should be within Basic structure of the constitution.
o All provisions that do not require ratification by states, and those that come
directly under the purview of Article 368, can be amended by the special majority.
▪ Special Majority with Consent of Half of States:
o Those provisions of the Constitution which are related to the federal structure of
the polity can only be amended by a special majority of the Parliament and also with
the consent of half of the state legislatures by a simple majority.
 o Important provisions that require ratification by the states include the election of
President, Supreme Court and High Courts, representation of states in
Parliament, distribution of legislative powers between the Union and the states, and
the extent of executive power of the Union and the states.
o Most importantly, an amendment to Article 368 itself, requires ratification by the
states.
What are the Restrictions to Parliament’s Amending Power?

▪ In the landmark Kesavananda Bharati case 1973, the supreme court has ruled that
parliament has the power to amend any part of the constitution but it cannot alter the
“basic structure of the constitution”.
▪ The constituents of basic structure are not clearly defined by the court. However, it has
been interpreted to provisions like values enshrined in preamble like secularism, equality
etc., federalism, separation of power, independence judiciary, rule of law etc.

Emergency Provisions: National Emergency, President Rule & Financial

Emergency
A state of emergency in India refers to a period of governance that can be proclaimed by
the President of India during certain crisis situations. Under the advice of the cabinet of ministers,
the President can overrule many provisions of the Constitution, which guarantees Fundamental
Rights to the citizens of India.

▪ The emergency provisions are contained in Part XVIII of the Constitution of India,
from Article 352 to 360. These provisions enable the Central government to meet any
abnormal situation effectively.
▪ The rationality behind the incorporation is to safeguard the sovereignty, unity, integrity and
security of the country, the democratic political system and the Constitution.
▪ The Constitution stipulates three types of emergencies-

1. National Emergency
2. Constitutional Emergency
3. Financial Emergency
NATIONAL EMERGENCY

▪ National emergency can be declared on the basis of war, external aggression or armed
rebellion. The Constitution employs the expression ‘proclamation of emergency’ to denote
an emergency of this type.
▪ Grounds of declaration:
 o Under Article 352, the president can declare a national emergency when the security
of India or a part of it is threatened by war or external aggression or armed rebellion.
o The President can declare a national emergency even before the actual occurrence of
war or armed rebellion or external aggression
o When a national emergency is declared on the grounds of ‘war’ or ‘external
aggression’, it is known as ‘External Emergency’. On the other hand, when it is
declared on the grounds of ‘armed rebellion’, it is known as ‘Internal Emergency’.

• This term ‘armed rebellion’ is inserted from the 44th amendment. Before this
term it was known as internal disturbance.
▪ Example:

o If India and Pakistan openly accept that they will use armed forces against each other
is simply war.
o If there is no formal declaration that there will be armed forces used against a country
is External aggression.
o And if because of these two grounds an emergency is proclaimed as an external
emergency.
▪ Parliamentary approval and duration

o The proclamation of emergency must be approved by both the houses of parliament

within one month from the date of its issue.
o However, if the proclamation of emergency is issued at a time when the Lok Sabha
has been dissolved or the dissolution takes place during the period of one month
without approving the proclamation, then the proclamation survives until 30 days
from the first sitting of Lok Sabha after its reconstitution, provided the Rajya Sabha
has in the meantime approved it.
o If approved by both the houses, the Emergency continues for 6 months and can be
extended to an indefinite period with an approval of the Parliament for every six
months.
o Every resolution approving the proclamation of emergency or its continuance must be
passed by either House of Parliament by a special majority.
▪ Revocation of proclamation

o A proclamation of Emergency may be revoked by the President at any time by a

subsequent proclamation. Such proclamation does not require parliamentary approval.
o The emergency must be revoked if the Lok Sabha passes a resolution by a simple
majority disapproving its continuation.
▪ Effects of national emergency

o A proclamation of Emergency has drastic and wide-ranging effects on the political

system. These consequences can be grouped into 3 categories:

• Effects on the centre-state relations: While a proclamation of Emergency is in

force, the normal fabric of the Centre-State relations undergoes a basic change.
this can be studied under three heads:

• Executive: Centre becomes entitled to give executive directions to a state

on ‘any’ matter
• Legislative: The parliament becomes empowered to make laws on any
subject mentioned in the state list, the president can issue ordinances on
State subjects also, if the parliament is not in session. The laws made on
state subjects by the parliament become inoperative six months after the
emergency has ceased to be in operation.
• Financial: the president can modify the constitutional distribution of
revenues between the centre and the states.
• Effect on the life of the Lok Sabha and State Assembly:

• While a proclamation of National Emergency is in operation, the life of the

Lok Sabha may be extended beyond the normal term for one year at a time.
However, this extension cannot continue beyond a period of six months
after the emergency has ceased to operate.
• Similarly, the Parliament may extend the normal tenure of a state
Legislative Assembly by one year each time during a national emergency,
subject to a maximum period of six months after the emergency has ceased
to operate.
• Effect on fundamental rights: Articles 358 and 359 describes the effect of a
National Emergency on the Fundamental Rights. These two provisions are
explained below:

• Suspension of Fundamental rights under Article 19: According to

Article 358, when a proclamation of National Emergency is made, the six
fundamental rights under article 19 are automatically suspended. Article 19
is automatically revived after the expiry of the emergency.

• The 44th Amendment Act laid out that Article 19 can only be
suspended when the National Emergency is laid on the grounds of
war or external aggression and not in the case of armed rebellion.
 • Suspension of other Fundamental Rights: Under Article 359, the
President is authorised to suspend, by order, the right to move any court for
the enforcement of Fundamental Rights during a National Emergency.
Thus, remedial measures are suspended and not the Fundamental
Rights.

• The suspension of enforcement relates to only those Fundamental

Rights that are specified in the Presidential Order.
• The suspension could be for the period during the operation of
emergency or for a shorter period.
• The Order should be laid before each House of Parliament for
approval.
• The 44 Amendment Act mandates that the President cannot suspend
the right to move the court for the enforcement of Fundamental
Rights guaranteed by Article 20 and 21.
▪ Declarations made so far: This type of emergency has been proclaimed three times so far-
in 1962, 1971 and 1975

o The first proclamation of National Emergency was issued in October 1962 on account
of Chinese aggression in the NEFA and was in force till January 1968.
o The second proclamation of National Emergency was made in December 1971 in the
wake of the attack by Pakistan.
o Even when the emergency was in operation, the third proclamation of National
Emergency was made in June 1975. Both the second and the third proclamations were
revoked in March 1977
President’s Rule

▪ Article 355 imposes a duty on the centre to ensure that the government of every state is
carried on in accordance with the provisions of the constitution.
▪ It is this duty in the performance of which the centre takes over the government of a state
under Article 356 in case of failure of constitutional machinery in a state.
▪ This is popularly known as ‘President’s Rule’.
▪ Grounds of imposition: the president’s ruler can be proclaimed under Article 356 on two
grounds:

1. Article 356 empowers the President to issue a proclamation if he is satisfied that a

situation has arisen in which the government of a state cannot be carried on in
accordance with the provisions of the constitution.
 2. Article 365 says that whenever a state fails to comply with or to give effect to any
direction from the centre, it will 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.
▪ Parliamentary approval and duration: A proclamation imposing president’s rule must be
approved by both the houses of parliament within two months from the date of its issue.

o However, if the proclamation of President’s rule is issued at a time when the Lok
Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the
period of two months without approving the proclamation, then the proclamation
survives until 30 days from the first sitting of the Lok Sabha after its reconstitution,
provided that the Rajya Sabha approves it in the meantime
▪ Consequences of the President’s rule: The President acquires the following extraordinary
powers when the President’s rule is imposed in a state:

o He can take up the functions of the state government and powers vested in the
governor or any other executive authority in the state.
o He can declare that the powers of the state legislature are to be exercised by the
parliament.
o He can take all other necessary steps including the suspension of the constitutional
provisions relating to any body or authority in the state.
Financial Emergency

▪ Grounds of declaration: Article 360 empowers the president to proclaim a Financial

Emergency if he is satisfied that a situation has arisen due to which the financial stability or
credit of India or any part of its territory is threatened.
▪ Parliamentary approval and duration: A proclamation declaring financial emergency
must be approved by both the Houses of Parliament within two months from the date of its
issue.

o However, if the proclamation of Financial Emergency is issued at a time when the

Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes place during
the period of two months without approving the proclamation, then the proclamation
survives until 30 days from the first sitting of the Lok Sabha after its reconstitution,
provided the Rajya Sabha has in the meantime approved it.

• Once approved by both the houses of Parliament, the Financial Emergency

continues indefinitely till it is revoked.
Effects of Financial Emergency

▪ Extension of the executive authority of the Union over the financial matters of the States.
▪ Reduction of salaries and allowances of all or any class of persons serving in the State.
▪ Reservation of all money bills or other financial bills for the consideration of the President
after they are passed by the legislature of the State.
▪ Direction from the President for the reduction of salaries and allowances of all or any class
of persons serving the Union; and the judges of the Supreme Court and the High Courts.
Local Self Government – Constitutional Scheme in India
Local self-government plays a crucial role in empowering citizens and fostering grassroots
democracy. In India, the constitutional scheme of local self-government provides a framework
for decentralization and participatory governance. Enshrined in the 73rd and 74th Amendments
to the Indian Constitution, the local self-government system has been instrumental in promoting
inclusive development, empowering marginalized communities, and strengthening the
democratic fabric of the nation. In this blog, we will explore the key features, significance, and
challenges of the local self-government constitutional scheme in India.

Key Features of Local Self-Government in India

1. Panchayati Raj Institutions (PRIs): The 73rd Amendment Act, 1992, introduced the
concept of PRIs, which are local self-government bodies at the village, intermediate (block),
and district levels. PRIs consist of elected representatives who form gram panchayats,
panchayat samitis, and zilla parishads, respectively.
2. Municipalities: The 74th Amendment Act, 1992, brought about a similar system for urban
areas, establishing municipalities as local self-government bodies. Municipal corporations,
municipal councils, and nagar panchayats are the three tiers of urban local governance.
3. Constitutional Recognition: The amendments added the 11th and 12th Schedules to the
Indian Constitution, which outline the functional domains of PRIs and municipalities. They
include subjects such as agriculture, health, education, water supply, urban planning, and
more.
4. Direct Elections: The constitutional scheme mandates direct elections to PRIs and
municipalities, ensuring democratic representation at the local level. Reservation of seats for
Scheduled Castes (SCs), Scheduled Tribes (STs), and women further promotes social
inclusion.

Significance of Local Self-Government

1. Grassroots Democracy: The local self-government system empowers citizens by giving

them the opportunity to participate directly in decision-making processes. It strengthens
democratic values and fosters a culture of citizen engagement at the grassroots level.
2. Inclusive Development: Local self-government brings governance closer to the people,
enabling better identification and understanding of local needs. By involving local
communities in decision-making, it facilitates targeted development initiatives and ensures
inclusive growth.
3. Empowering Marginalized Communities: Reserved seats for SCs, STs, and women in local
self-government institutions aim to uplift historically marginalized sections of society. These
provisions encourage equal representation and provide a platform for marginalized
communities to voice their concerns and shape policies.
4. Efficient Service Delivery: Local self-government bodies are responsible for delivering
various public services, such as education, healthcare, water supply, sanitation, and
infrastructure development. By decentralizing governance, the system aims to improve the
efficiency and responsiveness of service delivery.
MODULE 2: Union
Executive & State
Executive
Parliament
Introduction
Supreme Legislative Body: The Parliament is the legislative organ of a Union government and
the Parliament of India is its supreme legislative body.
It occupies a pre-eminent and central position in the Indian democratic political system due to
the adoption of the Parliamentary form of Government (‘Westminster’ model of
government).
First Parliament: The first general elections under the new Constitution of India were held
during the year 1951-52 and the first elected Parliament came into existence in April, 1952.
Constitutional Provisions: Articles 79 to 122 in Part V of the Constitution deal with the
organisation, composition, duration, officers, procedures, privileges and powers of the
Parliament.
Frame of Reference for Parliament: The framers of the Indian Constitution relied on the
British pattern for Parliament rather than the American pattern.
The President is not an integral part of the legislature in the USA, however, in India, it is.
Organs of Parliament
Rajya Sabha (The Council of States):
About: It is the Upper House (Second Chamber or House of Elders) and it represents the states
and union territories of the Indian Union.
The Rajya Sabha is called the permanent House of the Parliament as it is never fully
dissolved. The IV Schedule of the Indian Constitution deals with the allocation of seats in the
Rajya Sabha to the states and UTs.
Composition: The maximum strength of Rajya Sabha is 250 (out of which 238 members are
representatives of the states & UTs (elected indirectly) and 12 are nominated by the
President).
Current strength of the house is 245, 229 members represent the states, 4 members represent
the UTs and 12 are nominated by the president.
Election of Representatives: The representatives of states are elected by the members of state
legislative assemblies.
The representatives of each UT in the Rajya Sabha are indirectly elected by members of an
electoral college specially constituted for the purpose.

Only three UTs (Delhi, Puducherry and Jammu & Kashmir) have representation in Rajya
Sabha (others don’t have enough population).
The members nominated by the President are those who have special knowledge or practical
experience in art, literature, science and social service.
The rationale is to provide eminent persons a place in the house without going through elections.
Functions: Rajya Sabha has an important role of reviewing and altering the laws initiated by
the Lok Sabha.
It can also initiate legislation and a bill is required to pass through the Rajya Sabha in order to
become a law.
Power:
State Related Matters: The Rajya Sabha provides representation to the States. Therefore, any
matter that affects the States must be referred to it for its consent and approval.

If the Union Parliament wishes to remove/transfer a matter from the State list, the approval of
the Rajya Sabha is necessary.
Lok Sabha (The House of the People):
About: It is the Lower House (First Chamber or Popular House and it represents the people of
India as a whole.
Composition: The maximum strength of the Lok Sabha is fixed at 550 out of which 530
members are to be the representatives of the states and 20 of the UTs.
The current strength of Lok Sabha is 543, out of which 530 members represent the states and
13 represent the UTs.
Earlier, the President also nominated two members from the Anglo-Indian community, but by
the 95th Amendment Act, 2009, this provision was valid till 2020 only.
Election of Representatives: The representatives of states are directly elected by the
people from the territorial constituencies in the states. By the Union Territories (Direct
Election to the House of the People) Act, 1965, the members of Lok Sabha from the UTs are
chosen by direct election.
Functions: One of the most important functions of the Lok Sabha is to select the executive, a
group of persons who work together to implement the laws made by the Parliament.
This executive is often what we have in mind when we use the term government.
Powers:

• Decisions in Joint Sitting: Any ordinary law needs to be passed by both the Houses.
However, in case of any difference between the two Houses, the final decision is taken by
calling a joint session of both the [Link] to a larger strength, the view of the Lok
Sabha is likely to prevail in such a meeting.
• Power in Money Matters: Lok Sabha exercises more powers in money matters. Once
the Lok Sabha passes the budget of the government or any other money related law,
the Rajya Sabha cannot reject [Link] Rajya Sabha can only delay it by 14 days or
suggest changes in it, however, the former may or may not accept these changes.
• Power over Council of Ministers: The Lok Sabha controls the Council of Ministers.
If the majority of the Lok Sabha members say they have ‘no confidence’ in the Council
of Ministers, all ministers including the Prime Minister, have to [Link] Rajya Sabha
does not have this power.
President:
About: The President of India is not a member of either of the Houses and does not sit in the
Parliament to attend its meetings but s/he is an integral part of the Parliament.
S/He is the head of the state and is the highest formal authority in the country.
Appointment: The elected Members of Parliament (MPs) and the elected Members of the
Legislative Assemblies (MLAs) elect the President of India.
Powers:
1. Assent for Passing a Bill: A bill passed by both the Houses of Parliament cannot become law
without the President’s assent.
2. Summoning and Prorogation of Houses: He has the power to summon and prorogue both
the Houses, dissolve the Lok Sabha and issue ordinances when the Houses are not in session.
Officials:
Rajya Sabha: The Vice-President of India is the ex-officio Chairman of the Rajya Sabha. S/He
presides over the meetings of Rajya Sabha.
In his absence the Deputy Chairman (elected by its members from amongst themselves) presides
over the meeting of the House.
Lok Sabha: The presiding officer of Lok Sabha is known as Speaker.
S/He remains the Speaker even after Lok Sabha is dissolved till the next House elects a new
Speaker in her/his [Link] the speaker’s absence, a Deputy Speaker (elected by the House)
presides over the meetings.
Powers/Functions of Parliament
1. Legislative Functions: Only Parliament can make laws on the subjects of the Union
List. Along with the State Legislatures, the Parliament is empowered to make laws on
the Concurrent List. In a subject not mentioned in any list, the residuary powers are vested with
the Parliament.
2. Financial Functions: It is the custodian of the public money. The Government can neither
impose any tax on the public nor spend the money without the approval of the Parliament.
The budget is approved by the Parliament every year.
3. Electoral Functions: It participates in the election of the President of India and also elects the
Vice-President. The Lok Sabha elects its Speaker and Deputy Speaker and the Rajya Sabha
elects its Deputy Chairman.
4. Power of Removal: Certain high functionaries may be removed from office on the initiative
of the [Link] can remove the President, Judges of the Supreme Court and High
Courts through impeachment for violation of the Constitution.
[Link] of the Constitution: Most of the parts of the Constitution can be amended by the
Parliament by special majority. Certain provisions can only be amended by the Parliament with
the approval of States.
The Parliament cannot change the basic structure of the Constitution.
6. Power over Executive: Parliament exercises control over the Executive through question-
hour, zero hour, calling attention notice, adjournment motion etc.
The government always takes these motions very seriously because the government’s policies
are criticized severely and their likely impact on the electorate whom the government would
have to face ultimately.

Question 1: What are the powers & functions of President in India?

Answer: 1. Executive Powers of President: For every executive action that the Indian
government takes, is to be taken in his name. He may/may not make rules to simplify the
transaction of business of the central government. He appoints the attorney general of
India and determines his remuneration
a) He also appoints the following people:
• Comptroller and Auditor General of India (CAG)
• Chief Election Commissioner and other Election Commissioners
• Chairman and members of the Union Public Service Commission
• State Governors
• Finance Commission of India chairman and members
b) He seeks administrative information from the Union government. He requires PM to submit,
for consideration of the council of ministers, any matter on which a decision has been taken by a
minister but, which has not been considered by the council
c) He appoints National Commissions of:
• Scheduled Castes
• Scheduled Tribes
• Other Backward Classes

d) He can declare any area as a scheduled area and has powers with respect to the administration
of scheduled areas and tribal areas
2. Legislative Powers of President
a) He summons or prorogues Parliament and dissolve the Lok Sabha. He summons a joint sitting
of Lok Sabha and Rajya Sabha in case of deadlock
b) He addresses the Indian Parliament at the commencement of the first session after every
general election
c) He appoints speaker, deputy speaker of Lok Sabha, and chairman/deputy chairman of Rajya
Sabha when the seats fall vacant.
d) He nominates 12 members of the Rajya Sabha
e) He consults the Election Commission of India on questions of disqualifications of MPs.
f) He recommends/ permits the introduction of certain types of bills. He promulgates ordinances.
3. Financial Powers of President
a) To introduce the money bill, his prior recommendation is a must.
b) He causes Union Budget to be laid before the Parliament
c) To make a demand for grants, his recommendation is a pre-requisite
d) Contingency Fund of India is under his control
e) He constitutes the Finance Commission every five years
4. Judicial Powers of President
a) Appointment of Chief Justice and Supreme Court/High Court Judges are on him
b) He takes advice from the Supreme Court, however, the advice is not binding on him
c) He has pardoning power: Under article 72, he has been conferred with power to grant pardon
against punishment for an offence against union law, punishment by a martial court, or death
sentence.
Note: Pardoning powers of the president includes the following types:
 • Pardon with the grant of pardon convicts both conviction and sentence completely
absolved
• Commutation with this nature of the punishment of the convict can be changed
• Remission reduces the term of the imprisonment
• Respite awards lesser punishment than original punishment by looking at the special
condition of a convict
• Reprieve stays the execution of the awarded sentence for a temporary period
5. Diplomatic Powers of President
a) International Treaties and agreements that are approved by the Parliament are negotiated and
concluded in his name
b) He is the representative of India in international forums and affairs
6. Military Powers of President
He is the commander of the defence forces of India. He appoints:
• Chief of the Army
• Chief of the Navy
• Chief of the Air Force
7. Emergency Powers of President
He deals with three types of emergencies given in the Indian Constitution:
• National Emergency (Article 352)
• President’s Rule (Article 356 & 365)
• Financial Emergency (Article 360)
Question 2: What is the Veto Power of the President?
Answer: When a bill is introduced in the Parliament, Parliament can pass the bill and before the
bill becomes an act, it has to be presented to the Indian President for his approval. It is on the
President of India to either reject the bill, return the bill or withhold his assent to the bill. The
choice of the President over the bill is called his veto power. The Veto Power of the President of
India is guided by Article 111 of the Indian Constitution.
Comparison of Presidents in USA and India
1. Manner of election: US president is more or less directly elected whereas the Indian president
is indirectly elected. The advantage of the directly elected head of the government is the stability
of the government. Unlike Indian Prime Minister American President is not overpowered by the
“compulsions of coalition politics”
2. Head of the State: The US President is both the Head of the State and Head of the
Government, whereas the Indian president is only the head of the State. President of the US is
the real executive. Indian President like the British monarch is only a titular head.
3. Term of office: American President holds the office for 4 years and he can seek re-election
only once, while the Indian president holds the office for 5 years and is eligible for re-election
any number of times.
4. Responsibility to Legislature: The US president is not part of any legislature and is not
responsible to the legislatures. In India, the Parliament includes the President and the two
houses- Lok Sabha and Rajya Sabha.
[Link] process: Both the American and Indian Presidents can only be removed from the
office through impeachment. In India either house can initiate impeachment proceedings against
the president and with the concurrence of the other house can impeach the President. In US the
power to impeach solely lies with the Senate (upper house).
6. Emergency powers: Indian President wields huge powers during emergency situations. He
can proclaim both external and internal emergencies. Indian President can declare emergency in
a state, dissolve state legislature and dismiss the state council of ministers. During financial
emergency, he has the power to reduce the salaries of all the government officials including that
of the Supreme Court and High Court judges. He has a formidable list of executives, financial
and legislative powers which he can exercise on the advice of the cabinet during emergency.
7. Independence of office: The Indian President needs to act as per the advice of the Council of
Ministers (CoM) while discharging his duties. The CoM takes all the decisions pertaining to the
affairs of the country and executes them under the President’s name.
In the US, the members of the cabinet are not members of the Congress and are not responsible
to it. The cabinet members are appointed by the President and they are liable to be dismissed by
the President. The American President has the power to determine the policy of his government
independently without any external interference.
8. Veto power: Indian President has comparatively lesser veto power than the President of US.
The President of US can veto a bill passed by the Congress. He needs to sign the bill if it is once
again passed by two-thirds majority of both the houses.
The Indian President on the other hand can send the bill for reconsideration only once. If the bill
is passed again even by a simple majority in the Parliament he is obliged to sign the bill.
9. Pocket veto: US President can exercise his pocket veto power by not signing the bill for 10
days if he knows the session of the congress will end within 10 days. In such cases the bill dies.
Indian President can keep the bill for indefinite period as there is no constitutionally prescribed
time limit to give his assent. The President can use his pocket veto if the fall of the government
appears imminent. However, he has to act as per the advice of the new government and cannot
take his own decision if the current government falls. Pocket veto was first exercised by the
President Giani Zail Singh with respect to the Indian Postal Bill which was passed by the Rajiv
Gandhi government. Subsequently, the new government withdrew the bill in 1989.
10. State bills: Certain state bills need the previous consent of the president and he possess
absolute veto power with respect to some types of state bills. The US President does not have
such powers.
11. Dissolving the legislature: The Indian President can dissolve the Parliament while the US
President does not have such powers.
Powers and Functions of the Prime Minister
Under a parliamentary or semi-presidential system, the prime minister is the leader of the
ministry and the head of the council of ministers in the executive arm of government. The
President appoints the Prime Minister under Article 75 of the Indian Constitution. Article 74(1)
establishes a Council of Ministers, led by the Prime Minister, to assist and advise the President.

The Prime Minister of India

1. The President is the nominal executive power (de jure executive) conferred by the
Constitution underneath the parliamentary system of government. At the same moment,
the Prime Minister is the real executive authority (de facto executive).
2. In other words, the President is the head of state, but the Prime Minister is the head of
government.
3. The mechanism for selecting and appointing the Prime Minister is not specified in the
Constitution.
4. Article 75 solely states that the President appoints the Prime Minister.
5. Parliament sets the Prime Minister’s salary and allowances regularly. They are paid the
same amount as salary and allowances as a member of Parliament.
The Prime Minister’s Powers and Functions
The Prime Minister’s powers and functions can be reviewed under the following headings:
1. In relation to the Ministerial Council
As the chairman of the Union council of ministers, the Prime Minister has the following powers:
• They make recommendations to the President for ministerial appointments. The President
can only appoint ministers who the Prime Minister has proposed.
• They assign and reassign certain portfolios to ministers.
• In a disagreement, they might ask a minister to resign or suggest the President fire him.
• The council of ministers’ meeting is presided over by this individual, and their decisions
are affected by their decision.
• They preside over the council of ministers and affect its decisions.
• They direct, direct, manage and organise the work of all ministries.
• By retiring from office, they can put the council of ministers to an end.
• The Prime Minister is the Head of the Council of Ministers
2. In Relation to the President
In regard to the President, the Prime Minister has the following authority:
• They are the primary point of contact between the President and the Council of Ministers.
It is the prime minister’s responsibility to:
 • All decisions of the council of ministers relevant to the management and legislative
initiatives of the Union should be transmitted to the President.
• To provide such information about the administration of the Union’s affairs and
legislative ideas as the President may request.
• If the President so directs, present to the council of ministers any topic on which a
minister has made a decision but has not been reviewed by the council.
• They advise the President on key appointments such as with the Attorney General of
India, the Chairman and Members of the UPSC, the Comptroller and Auditor General of
India, election commissioners, the Chairman and Members of the Finance Commission,
and so on.
3. Regarding the Parliament
• The Prime Minister is the Lower House’s leader. As a result, they have the following
abilities:
• He counsels the President on the convening and adjourning of Parliamentary sessions.
• At any time, he can recommend the dissolution of the Lok Sabha to the President.
• He announces government initiatives on the House floor.
Other Powers and Functions
• They are the heads of the NITI Ayog (which succeeded the Planning Commission), the
National Integration Council, the InterState Council, the National Water Resources
Council, and a number of other organisations.
• They have had a massive impact on the country’s foreign policy.
• He is the Union government’s leading spokesman.
• During a crisis, he is the political crisis manager.
• As the nation’s leader, he meets with diverse groups of people in various states and gets
memos about their issues, among other things.
• He is the main face and the leader of the ruling party and the political head of the armed
forces.
Prime Ministerial Power Restriction
• Vote of no confidence: Under the Parliamentary system of government, if the Prime
Minister is not performing to the satisfaction of the Members of Parliament and is not
meeting the ambitions for which he was appointed, they can vote no confidence in him.
In such circumstances, the Prime Minister must resign. The dread of being pushed out of
power limits his abilities.
• Toeing the party line: The Prime Minister’s party has an ideology and policy platform
that they want to enact. As a result, the prime minister cannot operate outside of the
party’s stated policies.
• Advice from the Head of State: The Head of State may advise the Prime Minister on
specific issues from time to time. They may call the Prime Minister’s attention to
particular pressing concerns affecting the country. In that respect, the Prime Minister is
constrained by the Head of State.
• Public opinion: The Prime Minister may be swayed by public opinion. This might
happen if he leads the implementation of a policy that the public believes is harmful to
 their interests. Furthermore, the prime minister’s advice may not want to be in the press
for the wrong reasons. In that sense, he is constrained by public opinion.
Independence of the Judiciary
1. Fair and neutral judicial system which can take its decision without any interference of the
executive or legislative branch of government.
2. Principle of separation of powers: The Judiciary keeps in check the executive and
Legislature in accordance with the derived from Article 13.
3. Separation of judiciary from the executive (Article 50)
Provisions that ensure Judicial Independence
1. Security of Tenure: Judges continue to remain in office till they reach the age of 65 years in
the case of judges of the Supreme Court (Art. 124(2)) and 62 years in the case of judges of the
High Courts (Art. 217(1)).
2. Removal of Judges: They cannot be removed from the office except by an order of the
President and that too on the ground of proven misbehaviour and incapacity. The resolution has
also to be accepted to that effect by a majority of the total membership of each House of
Parliament. Also, by a majority of no less than two-third of the members of the house present
and voting. It is so complicated that there has been no case of the removal of a Judge of the
Supreme Court or High Court under this provision.
3. Salaries and Allowances of Judges: The judges are independent as their salaries and
allowances are fixed and are not subject to a vote of the legislature.
4. Powers and Jurisdiction of Supreme Court: Parliament can only add to the powers and
jurisdiction of the Supreme Court but cannot curtail them. In civil cases, Parliament may change
the pecuniary limit for the appeals to the Supreme Court.
5. Power to Punish for Contempt: Both the Supreme Court and the High Court have the power
to punish any person for their contempt.
Article 129 provides that the Supreme Court shall have the power to punish for contempt
of itself.
Likewise, Art. 215 lays down that every High Court shall have the power to punish for
contempt of itself.
6. Separation of the Judiciary from the Executive: Article 50 states that the state shall take
steps to separate the judiciary from the executive in the public services of the state.
Need for Independent judiciary
• Welfare State: The decisions of the constitutional courts of this country have enabled
social democracy to thrive.
• Live up to people’s aspirations: Judiciary’s ability to uphold the Constitution sustains
its impeccable character. The immense trust reposed by the public at large upon the
judiciary, as a last resort of hope.
 • Checks and balances in a political democracy: A robust justice delivery system at the
grassroots level ensures better functioning of the state.
• Accountability to the people: To uphold the democratic principle of accountability. It
helps to keep the executive and legislature accountable to the people through judicial
review and judicial activism.
• Constitution interpretation: The written constitution is considered as the basic law of
the land and requires some authority to interpret it without prejudice and self-interest.
• Protection of individual rights: Independent India inherited a deeply fragmented society
from its colonial past. The stark divide between the haves and have nots is still a
[Link] an impartial and independent judiciary protects the rights of the individual
without fear and favour.
• Prevent autocracy: Without an independent judiciary, we will have a dictatorship, as the
executive will be able to do whatever it likes.
Appointment of Judges in Supreme Court
Composition and Strength of the Supreme Court: Originally, the Supreme Court had eight
judges (one chief justice and seven others).
The Parliament has increased the number of judges over time.
The current strength of the Supreme Court is 34 judges (one chief justice and 33 others).
Qualifications for Appointment as a Judge:
According to Article 124(3) of the Constitution, a person can be appointed as a judge of the
Supreme Court if he or she:
• A person must be a citizen of India.
• Must have served as a judge of a High Court for at least five years or two such courts
in succession.
• Alternatively, must have been an advocate of a High Court for at least ten years or two
or more such courts in succession.
• Must be a distinguished jurist in the opinion of the president.
Appointment:
The Judges of the Supreme Court are appointed by the President under clause (2) of Article
124 of the Constitution.
The President consults with judges of the Supreme Court and High Courts to make informed
appointments.
Oath of Office:
Every appointed judge must make and subscribe to an oath before the President or an appointed
[Link] oath includes commitments to uphold the Constitution, sovereignty and integrity of
India, and perform duties without fear or favor.
Tenure and Resignation:
• There is no prescribed minimum age limit for a judge's appointment.
 • A judge of the Supreme Court serves until they reach the age of 65 years.
• However, a judge may resign before reaching the age of 65 years by resigning to the
President.
Salaries and Allowances:
• Salaries, allowances, privileges, leave, and pension of Supreme Court judges are
determined by Parliament.
• The Salaries, Pension, and Allowances of the Supreme Court Judges are charged upon
the Consolidated Fund of India.
Removal:
A judge of the Supreme Court can only be removed from office by an order of the President.
The removal process requires an address by each House of Parliament, supported by a special
majority i.e., a majority of the total membership of that House and a majority of not less
than two-thirds of the members present and voting. The grounds for removal are proven
misbehaviour or incapacity.
Parliament has the authority to regulate the procedure for presenting the address and
investigating and proving the misbehaviour or incapacity of a judge.
Once appointed, judges can serve until the age of 65 and cannot be removed during their tenure
except for proved misbehaviour or incapacity.
Collegium System for Judicial Appointments:
Judges of the higher judiciary are appointed through the collegium system. The collegium,
consisting of the Chief Justice of India and the four senior-most judges of the Supreme
Court, decides on appointments, elevations, and transfers of Judges.
The term "collegium" is not mentioned in the Indian Constitution but has been established
through judicial pronouncements.
Judicial Appointments to High Courts
Article 217 of the Constitution: It states that the Judge of a High Court shall be appointed by
the President in consultation with the Chief Justice of India (CJI), the Governor of the State.
In the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High
Court is consulted.
Consultation Process: High Court judges are recommended by a Collegium comprising the CJI
and two senior-most judges. The proposal, however, is initiated by the Chief Justice of the
High Court concerned in consultation with two senior-most colleagues.
The recommendation is sent to the Chief Minister, who advises the Governor to send the
proposal to the Union Law Minister.
The Chief Justice of the High Court is appointed as per the policy of having Chief Justices
from outside the respective States.
Ad-hoc Judges: The appointment of retired judges was provided for in the Constitution
under Article 224A. Under the Article, the Chief Justice of a High Court for any State may at
any time, with the previous consent of the President, request any person who has held the
office of judge of that court or of any other High Court to sit and act as a judge of the High Court
for that State.
Judicial Review
It is a type of court proceeding in which a judge reviews the lawfulness of a decision or action
made by a public body. In other words, judicial reviews are a challenge to the way in which a
decision has been made, rather than the rights and wrongs of the conclusion reached.
Judicial review has two important functions, like, of legitimizing government action and the
protection of constitution against any undue encroachment by the government. Judicial
review is considered a basic structure of the constitution.
Judicial review is also called the interpretational and observer roles of the Indian judiciary.

Types of Judicial Review:

• Reviews of Legislative Actions: This review implies the power to ensure that laws
passed by the legislature follow the provisions of the Constitution.
• Review of Administrative Actions: This is a tool for enforcing constitutional
discipline over administrative agencies while exercising their powers.
• Review of Judicial Decisions: This review is used to correct or make any change in
previous decisions by the judiciary itself.
Importance of Judicial Review:
1. It is essential for maintaining the supremacy of the Constitution.
2. It is essential for checking the possible misuse of power by the legislature and executive.
3. It protects the rights of the people.
4. It maintains the federal balance.
5. It is essential for securing the independence of the judiciary.
6. It prevents tyranny of executives.
Public Interest Litigation
Introduction: The expression ‘Public Interest Litigation’ has been borrowed from American
jurisprudence, where it was designed to provide legal representation to previously unrepresented
groups like the poor, the racial minorities, unorganised consumers, citizens who were passionate
about the environmental issues, etc. Public interest Litigation (PIL) means litigation filed in a
court of law, for the protection of “Public Interest”, such as Pollution, Terrorism, Road safety,
Constructional hazards etc. Any matter where the interest of public at large is affected can be
redressed by filing a Public Interest Litigation in a court of law.
Public interest litigation is not defined in any statute or in any act. It has been interpreted by
judges to consider the intent of public at large.
Public interest litigation is the power given to the public by courts through judicial activism.
However, the person filing the petition must prove to the satisfaction of the court that the petition
is being filed for a public interest and not just as a frivolous litigation by a busy body.
The court can itself take cognizance of the matter and proceed suo motu or cases can commence
on the petition of any public spirited individual.
Some of the matters which are entertained under PIL are:

• Bonded Labour matters

• Neglected Children
• Non-payment of minimum wages to workers and exploitation of casual workers
• Atrocities on women
• Environmental pollution and disturbance of ecological balance
• Food adulteration
• Maintenance of heritage and culture

Who Can File a PIL and Against Whom?

Any citizen can file a public case by filing a petition:

• Under Art 32 of the Indian Constitution, in the Supreme Court.

• Under Art 226 of the Indian Constitution, in the High Court.
• Under sec. 133 of the Criminal Procedure Code, in the Court of Magistrate.
However, the court must be satisfied that the Writ petition fulfils some basic needs for PIL as the
letter is addressed by the aggrieved person, public spirited individual and a social action group
for the enforcement of legal or Constitutional rights to any person who are not able to approach
the court for redress.
A Public Interest Litigation can be filed against a State/ Central Govt., Municipal Authorities,
and not any private party. The definition of State is the same as given under Article 12 of the
Constitution and this includes the Governmental and Parliament of India and the Government
and the Legislature of each of the States and all local or other authorities within the territory of
India or under the control of the Government of India.
Judicial Activism
Judicial activism signifies the proactive role of the Judiciary in protecting the rights of citizens.
The practice of Judicial Activism first originated and developed in the USA.
In India, the Supreme Court and the High courts are vested with the power to examine the
constitutionality of any law, and if such a law is found to be inconsistent with the provisions of
the constitution, the court can declare the law as unconstitutional.
It has to be noted that the subordinate courts do not have the power to review constitutionality of
laws.
Judicial activism has arisen mainly due to:

• The failure of the executive and legislatures to act.

• Since there is a doubt that the legislature and executive have failed to deliver the
desired results.
• It occurs because the entire system has been plagued by ineffectiveness and
inactiveness.
• The violation of basic human rights has also led to judicial activism.
• Due to the misuse and abuse of some of the provisions of the Constitution, judicial
activism has gained importance.

What are Lokpal and Lokayukta?

The Lokpal and Lokayukta Act, 2013 provided for the establishment of Lokpal for the Union
and Lokayukta for States. These institutions are statutory bodies without any constitutional
status. They perform the function of an "ombudsman” and inquire into allegations of corruption
against certain public functionaries and for related matters.
Why do We need such Institutions?
Maladministration is like a termite which slowly erodes the foundation of a nation and hinders
administration from completing its task. Corruption is the root cause of this problem. Most of the
anti-corruption agencies are hardly independent. Even Supreme Court has been termed CBI as a
“caged parrot” and “its master’s voice”.
Many of these agencies are advisory bodies without any effective powers and their advice is
rarely [Link] is also the problem of internal transparency and accountability. Moreover,
there is not any separate and effective mechanism to put checks on these agencies.
In this context, an independent institution of Lokpal has been a landmark move in the history of
Indian polity which offered a solution to the never-ending menace of corruption.
What are the Key Provisions of the Lokpal and Lokayuktas (Amendment) Act, 2016?
• It amended the Lokpal and Lokayukta Act, 2013.
• It also amended section 44 of the 2013 Act that deals with the provision of furnishing of
details of assets and liabilities of public servants within 30 days of joining the
government service.
• It replaces the time limit of 30 days, now the public servants will make a declaration of
their assets and liabilities in the form and manner as prescribed by the government.
What is the Structure of Lokpal?
• Lokpal is a multi-member body, that consists of one chairperson and a maximum of 8
members.
• Chairperson of the Lokpal should be either the former Chief Justice of India or the former
Judge of Supreme Court or an eminent person with impeccable integrity and outstanding
ability, having special knowledge and expertise of minimum 25 years in the matters
relating to anti-corruption policy, public administration, vigilance, finance including
insurance and banking, law and management.
• Out of the maximum eight members, half will be judicial members and minimum 50% of
the Members will be from SC/ ST/ OBC/ Minorities and women.
• The judicial member of the Lokpal either a former Judge of the Supreme Court or a
former Chief Justice of a High Court.
• The non-judicial member should be an eminent person with impeccable integrity and
outstanding ability, having special knowledge and expertise of minimum 25 years in the
matters relating to anti-corruption policy, public administration, vigilance, finance
including insurance and banking, law and management.
• The term of office for Lokpal Chairman and Members is 5 years or till the age of 70
years.
• The members are appointed by the president on the recommendation of a Selection
Committee.
• The selection committee is composed of the Prime Minister who is the Chairperson,
Speaker of Lok Sabha, Leader of Opposition in Lok Sabha, Chief Justice of India or a
Judge nominated by him/her and One eminent jurist.
• For selecting the chairperson and the members, the selection committee constitutes a
search panel of at least eight persons.
What comes under the Jurisdiction of Lokpal and its Powers?
• Jurisdiction of Lokpal includes Prime Minister, Ministers, members of Parliament,
Groups A, B, C and D officers and officials of Central Government.
• Jurisdiction of the Lokpal included the Prime Minister except on allegations of corruption
relating to international relations, security, the public order, atomic energy and space.
• The Lokpal does not have jurisdiction over Ministers and MPs in the matter of anything
said in Parliament or a vote given there.
• Its jurisdiction also includes any person who is or has been in charge (director/ manager/
secretary) of anybody/ society set up by central act or any other body financed/ controlled
by central government and any other person involved in act of abetting, bribe giving
or bribe taking.
 • The Lokpal Act mandates that all public officials should furnish the assets and liabilities
of themselves as well as their respective dependents.
• It has the powers to superintendence over, and to give direction to CBI.
• If Lokpal has referred a case to CBI, the investigating officer in such case cannot be
transferred without the approval of Lokpal.
• The Inquiry Wing of the Lokpal has been vested with the powers of a civil court.
• Lokpal has powers of confiscation of assets, proceeds, receipts and benefits arisen or
procured by means of corruption in special circumstances.
• Lokpal has the power to recommend transfer or suspension of public
servant connected with allegation of corruption.
• Lokpal has the power to give directions to prevent the destruction of records during
the preliminary inquiry.
What are Its Limitations?
The institution of lokpal has tried to bring a much needed change in the battle against corruption
in the administrative structure of India but at the same time, there are loopholes and lacunae
which need to be corrected.
• Lokpal is not free from political influence as the appointing committee itself consist of
members from political parties.
• The appointment of Lokpal can be manipulated in a way as there is no criterion to decide
who is an ‘eminent jurist’ or ‘a person of integrity.’
• The 2013 act did not provide concrete immunity to the whistle blowers. The provision
for initiation of inquiry against the complainant if the accused is found innocent will only
discourage people from complaining.
• The biggest lacuna is the exclusion of judiciary from the ambit of the Lokpal.
• The Lokpal is not given any constitutional backing and there is no adequate provision
for appeal against the Lokpal.
• The specific details in relation to the appointment of Lokayukta have been left
completely on the States.
• To some extent, the need for functional independence of the CBI has been catered to by a
change brought forth in the selection process of its Director, by this Act.
• The complaint against corruption cannot be registered after a period of seven years from
the date on which the offence mentioned in such complaint is alleged to have been
committed.
The Governor
According to the Constitution of India, there has to be a Governor for each State. If need be, one
person may be appointed Governor for even two or more States. The executive authority of every
State is vested in the Governor of the state. He/She may exercise the same, directly or through
the officers subordinate to him.
The Governor : Appointment, Qualifications, Tenure etc.
The Governor of a State is appointed by the President of India. There is no bar on reappointment
of a Governor either in the same State or in different States. This shows that the Governor is not
elected but is appointed. In order to become a Governor a person must have following
qualifications:
1. He/she must be a citizen of India;
2. He/she should be at least 35 years; and
3. He/she cannot hold any office of profit during his tenure.
However, if a person is a member of either House of the Parliament or the Legislature of any
State or a member of the Council of Ministers at the National or the State level and is appointed
as Governor, he/she ceases to be a member of the Legislature or the Council of Ministers.
The Governor is appointed for a term of five years but normally holds office during the Structure
of Government pleasure of the President. He/she may resign before the expiry of the term or may
be removed by the President earlier. As a matter of fact while appointing or removing the
Governor the President goes by the advice of the Prime Minister. He/she is entitled to a rent-free
residence which is called Raj Bhawan. His/her emoluments, allowances and privileges are
specified by the law. However, the emoluments and allowances of the Governor cannot be
reduced during his tenure.
The Governor: Powers, Position and Role
The powers and functions of the Governor can broadly be categorised under two heads namely
(a) as the head of the State, and
(b) as the representative of the Union Government.

(A) Executive Powers

All the executive functions in the State are carried on in the name of the Governor. He/she not
only appoints the Chief Minister but on his/her advice appoints the members of the Council of
Ministers. According to a well-established convention he/she 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 he/she allocates portfolios among the
ministers. He/she appoints the Advocate- General and Chairman and members of the State Public
Service Commission. He/she 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.

(B) Legislative Powers

The Governor is an inseparable part of the State Legislature and as such he/she possesses certain
legislative powers as well. The Governor has the right to summon and prorogue the State
Legislature. He/she can, on the recommendation of the Council of Ministers headed by the Chief
Ministers dissolve the State Legislative Assembly. He/She can address the session of the State
Legislative Assembly or Joint Session of the two Houses of the Legislature. He can send
messages to either or both Houses. He/She can nominate one member of the Anglo-Indian
Community to the State Legislative Assembly, if he/she is satisfied that after General Elections,
the said community is not adequately represented in the Assembly.

He/she nominates one-sixth members of the total strength of the Legislative Council if the same
is existing in a State. Such nominated members are those who possess special knowledge in the
field of literature, science, cooperative movement and social service. The assent of the Governor
is necessary for a bill to become a law. In this regard, the Governor has the following options :

(a) He/she may give assent to the bill; in that case the bill becomes a law;
(b) He/she may withhold the assent; in which case the bill fails to become a law;
(c) He/she may return the bill with his message. If the State Legislature passes the bill in its
original shape or in a modified form, the Governor has to give the assent to the bill;
(d) He/she may reserve the bill for the consideration of the President.

The Governor has the power to issue ordinances during the period when the State Legislature is
not in session. However, the ordinance has to be placed before the State Legislature when it
reassembles for the next session. It ceases to operate after six weeks, unless earlier rejected by
the Legislature. The Legislative Assembly may replace the ordinance by a law enacted by it
within the said period. The legislative powers, like the executive powers, of the Governor are, in
practice exercised by the State Council of Ministers, headed by the Chief Minister.

(C) Financial Powers

1. No money bill can be introduced in the State Legislative Assembly without the prior
permission of the Governor.
2. The annual and supplementary budgets are introduced in the Assembly in the name of the
Governor.
3. The Governor has the control over the State Contingency Fund.

(D) Power of Pardon

The Governor possesses the power to grant pardon reprieves, respites or remission of punishment
or to suspend, remit or commute the sentence of any person convicted by the Courts of any
offence against any law relating to a matter to which the executive power of the State extends.

(E) Discretionary Powers

As has been stated earlier that while exercising the executive, legislative, financial and judicial
powers the Governor is aided and advised by the Council of Ministers headed by the Chief
Minister. These powers are enjoyed by him/her as the Head of State. There are a few more
powers which he/she possesses as the representative of the Central or Union Government. These
powers are also called discretionary powers. It is under special circumstance that the Governor
may act without the advice of the Council of Ministers. In other words, such powers of the
Governor are exercised in his/her own discretion. They are:
1. A situation may arise when in the opinion of the Governor there is the breakdown of the
constitutional machinery in the State. In such a case, the Governor may report the situation to the
President for imposition of the President’s Rule in that State. As the Governor exercises this
power on his/her own, it is called the discretionary power of the Governor. In case the
Governor’s report is accepted by the President, and he/she proclaims emergency under Article
356, the State Council of Ministers is removed, and the State Legislative Assembly is either
dissolved or put under suspension. During such emergency, the Governor rules on behalf of the
President. Structure of Government

2. A situation may also arise when the Governor may reserve a bill for the consideration of the
President. As the Governor does or can do this job on his own, it again is one of his discretionary
powers. The discretionary powers of the Governor were meant for extraordinary and emergency
situations. However, in practice these have not only been used in such situations, but have been
made use of relating to normal powers in controversial manner. This has led to creating tension
between Union and State relations.

The Chief Minister

Each State has a Council of Ministers to aid and advise the Governor in the exercise of his
functions. Chief Minister is the head of the government in the State. The Council of Ministers
with the Chief Minister as its head exercises real authority at the State level.
Formation of the Council of Ministers
The Chief Minister is appointed by the Governor. The person who commands the majority
support in the State Legislative Assembly (Vidhan Sabha) is appointed as the Chief Minister by
the Governor. The other Ministers are appointed by the Governor on the advice of the Chief
Minister. The ministers included in the Council of Minister’s must belong to either House of the
State legislature. A person who is not a member of the State legislature may be appointed a
minister, but he/she ceases to hold office if he/she is not elected to the State legislature within six
months of his appointment. The portfolios to the members of the Council of Ministers are
allocated by the Governor on the advice of the Chief Minister.

Functions of the Chief Minister

Chief Minister is the head of the Council of Ministers of his State. The constitutional position of
the Chief Minister is more or less similar to that of the Prime Minister. The Chief Minister plays
an important role in the administration of the State. We can discuss his functions as follows:
1. Chief Minister is the real head of the State Government. Ministers are appointed by the
Governor on the advice of the Chief Minister. The Governor allocates portfolios to the ministers
on the advice of the Chief Minister.
2. Chief Minister presides over the Cabinet meetings. He/she coordinates the functioning of
different ministries. He/she guides the functioning of the Cabinet.
3. Chief Minister plays a key role in framing the laws and policies of the State Government. Bills
are introduced by the ministers in the State legislature with his/her approval. He/she is the chief
spokesman of the policies of his government both inside and outside the State Legislature.
4. The Constitution provides that the Chief Minister shall communicate to the Governor all
decisions of the Council of Ministers relating to the administration and the affairs of the State
and proposals for legislation.
5. The Chief Minister furnishes such information relating to the administration of the affairs of
the State and proposals for legislation as the Governor may call for.
6. If the Governor so requires, the Chief Minister submits for consideration of the Council of
Ministers any matter on which a decision has been taken by a minister but which has not been
considered by the Cabinet.
7. The Chief Minister is the sole link of communication between the Cabinet and the Governor.
The Governor has the right to be informed by the Chief Minister about the decisions taken by the
Council of Ministers.
The above functions show that the real authority is vested with the Council of Ministers headed
by the Chief Minister. The Council of Ministers is the real executive in the State. The position of
the State Council of Ministers largely depends upon the strength of the ruling party in the State
Assembly and the personality of the Chief Minister. The position of the Chief Minister is more
powerful when his party is in power in the Centre as well. As long as the Chief Minister and his
Council of Ministers enjoy the confidence of majority in the Legislative Assembly, he exercises
the real executive power in the State.
Relationship of the Governor with the Chief Minister
The Governor is the constitutional head of the State. All executive actions in the State are taken
in his name. The Governor appoints the Chief Minister and on the advice of the Chief Minister
he appoints other ministers. The Governor is responsible for smooth running of the State
administration. It is his/her duty to see that the State administration is carried on in accordance
with the provisions of the Constitution. If he/she finds that the constitutional machinery of the
State has broken down or the administration cannot be carried on in accordance with the
provisions of the Constitution, he/she may recommend to the Union Government to proclaim
emergency in the State. The Governor in his/her report can advise the President to impose
President’s Rule in the State. If the President is satisfied, he/she will declare emergency under
Article 356, popularly known as President’s Rule in the State. After proclamation, the State
comes under the control of the Centre and the Governor acts as the Centre’s agent. The Council
of Ministers is dismissed and Assembly (Vidhan Sabha) is dissolved or suspended. The
Constitution provides that there shall be a Council of Ministers with the Chief Minister as its
head to aid and advise the Governor in the exercise of his functions, except when he/ she is
required by the Constitution to act on his discretion. When the Chief Minister enjoys the
confidence of the majority in the State legislature, then the Governor’s capacity to exercise
his/her discretionary powers is reduced. In such a situation the Chief Minister is the real head of
the State administration and the Governor is the constitutional head. So we see that the Governor
plays a dual role. As the constitutional head of the State, he/she acts on the advice of the Council
of Ministers and also serves as the agent of the Central Government. The relations between the
Governor and the Chief Minister are influenced by the political and constitutional conditions in
the State. In normal conditions, the Governor is the ceremonial head of the State but during the
President’s Rule he/she becomes the agent of the Centre and assumes control of the State
administration. Keeping the spirit of the Constitution in mind, the Governor may in a sense be
the “eyes and ears” of the Central Government and as he/she is appointed, removed or
transferred by the Centre he continues to be subservient to Centre as well as the party in power
there. It may Be emphasized that the job of the Governor would not be merely that of an umpire
to see that the game is played according to the letter and spirit of the Constitutional provisions.

The State Council of Ministers: Power and Functions

The Constitution provides that there shall be a Council of Ministers with the Chief Minister at
the head to aid and advice the Governor in the exercise of his functions except in so far as he is
by or under the Constitution required to act in his discretion.
The governor appoints the Chief Minister and other Ministers on the advice of the Chief
Minister. The Council of Ministers constitutes the real executive in the State. Although the
administration is carried on in the name of the Governor, actual decisions are normally made by
Ministers.
Under ordinary circumstances, the Governor has to follow their advices. It is the duty of the
Chief Minister of a State to communicate to the Governor regarding administration and the
affairs of the State.
Thus, in theory the Governor may dismiss a minister if he so likes, but in view of the collective
responsibility of the Council of Ministers to the State Legislative Assembly, he is not likely to
use this power in actual practice.
The Constitution defines the position of the Council of Ministers in relation to the State
Legislature by providing that the Council of Ministers is collectively responsible to the
Legislative Assembly of the State. This means that they can remain in office only if they enjoy
the support of a majority of members of the State Legislative Assembly.
The number of the ministers is not fixed. It is for the Chief Minister to determine the size of the
Council of Ministers and he does so as the requirements of the occasion may demand.; The only
constitutional requirement is that in the States of Bihar, Madhya Pradesh, and Orissa the Council
of Ministers must have a Minister in charge of Tribal welfare and the same Minister may also be
entrusted with the welfare of the Scheduled Castes and Backward Classes in the State.
Powers and Functions of the Council of Ministers:
The Council of Ministers performs the following functions:
(i) Formulation of Policies:
The Ministers formulate the policies of the government. The Cabinet takes decisions on all major
problems—public health, relief to the disabled and unemployed, prevention of plant diseases,
water storage, land tenures and production, supply and distribution of goods. When it has
formulated a policy, the appropriate department carries it out.
(ii) Administration and Maintenance of Public Order:
The executive power is to be exercised in such a way as to ensure compliance with State laws.
The Constitution empowers the Governor to make -rules for the more convenient transaction of
the business of the Government. All such rules are made on the advice of the Council of
Ministers.
(iii) Appointments:
The Governor has the power to appoint the Advocate-General and the Members of the State
Public Service Commission. The Vice-Chancellors of the State Universities and members of
various Boards and Commissions are all appointed by the Governor. The Governor cannot make
these appointments at his will. He must exercise these functions on the advice of his ministers.
(iv) Guiding the Legislature:
Most of the Bills passed by the Legislature are Government Bills, prepared in the ministries.
They are introduced, explained and defended in the State Legislature by the Ministers. The
Cabinet prepares the Governor’s Address in which it sets forth its legislative programme at the
commencement of the first session of the Legislature each year.
For weeks at a stretch the Cabinet’s proposal take over every working moment of the House. The
Cabinet makes sure that all government bills will be translated into laws.
(v) Control over the State Exchequer:
The State budget containing the estimates of income and expenditure for the ensuing year is
placed by the Finance Minister before the State Legislature. The Legislature cannot take the
initiative in the case of a Money Bill. Such a Bill must be recommended by the Governor and
can be introduced only by a Minister. The initiative in financial matters lies with the Executive.
(vi) Execution of Central Laws and Decisions of the Union Government:
The Union Government is empowered to give directions to the State-governments in certain
matters. The States should exercise their executive power so as to ensure compliance with the
laws made by Parliament. They should not do anything which would hamper the executive
power of the Union.
Railways, for instance, is a Union subject, but police, including railway police, is a State Subject.
The Union Government can give directions to the State Executive as to the measures to be taken
for the protection of railways within the State.
State Legislature – Legislative Assembly
The Legislative Assembly is the popularly elected chamber and is the real Centre of power in a
State. The maximum strength of an assembly must not exceed 500 or its minimum strength fall
below 60. But some of the States have been allowed to have smaller Legislative Assemblies, e.g.
Sikkim, Arunachal Pradesh, Goa, etc.
The territorial constituencies demarcation should be done as far as possible, such that the ratio
between the population of each constituency and the number of seats allotted to it is the same all
over the State.
Apart from these general provisions, there are also special provisions with respect to the
representation of SC and ST. In case the Governor feels that the Anglo-Indian community is not
adequately represented, he can nominate one member of that community to the assembly.
State Legislature – Legislative Council
The Legislative Council of a State Comprises not more than one-third of the total number of
members in the Legislative Assembly of the State and in no case less than 40 members.
However, in Jammu and Kashmir, the strength is only 36. The system of the composition of the
Council as provided for in the Constitution is not final. The final power is given to the
Parliament of the Union. But until the Parliament legislates on the subject, it shall be as provided
for in the Constitution, which is described below:
Duration of Legislative Assembly & Legislative Council
It will be a partly nominated and partly elected body, the election being an indirect one and in
accordance with the principle of proportional representation by the single transferable vote. The
members being drawn from various sources, the Council shall have a variegated composition.
Broadly speaking 5/6 of the total number of members of the Council shall be indirectly elected
and 1/6 will be nominated.
The duration of the Legislative Assembly is five years. The Governor has the power to dissolve
the Assembly even before the expiry of its term. The period of five years, may, while a
proclamation of emergency is in operation, be extended by the 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
proclamation has ceased to operate (Article 172(1)).
Unlike the Legislative Assembly, the Legislative Council is not subject to dissolution. It is a
permanent body unless abolished by the Legislative Assembly and Parliament by the due
procedure. But no person can be a permanent member of the Council as one-third of the
members of the Council retire on the expiry of every second year. It amounts to a term of six
years for each member. There is no bar on a member getting re-elected on the expiry of his term.
(a) one-third of the total number of members of the Council would be elected by electorates
consisting of members of local bodies like the municipalities and the district boards.
(b) one-twelfth of the members would be elected by electorates comprising of graduates of the
standing of three years dwelling in that particular state.
(c) one-twelfth of the members would be elected by electorates consisting of teachers who have
been in the teaching profession for at least 3 years in educational institutes in that state, which
are not lower than secondary schools in the standard.
(d) one-third would be elected by members of the Legislative Assembly from amongst people
who are not Assembly members.
(e) The rest would be nominated by the Governor from persons having knowledge or practical
experience in matters like science, literature, cooperative movement, art and social service. (The
Courts can’t question the propriety or bonafide of the Governor’s nomination.)

Qualifications of Members of Legislative Assembly

A person shall not be qualified to be selected to occupy a seat in the Legislature of a State unless
he/she
(a) is an Indian citizen;
(b) is 25 years or above for Legislative Assembly, and is 30 or above for Legislative Council,
and
(c) possess such other qualifications as may be prescribed by the Parliament.
Powers & Functions of State Legislature
The functions of the states’ Legislative Council are only advisory in nature. If any Bill is passed
by the Legislative Assembly and sent to the Council, and the Council refuses to give its approval,
then the Assembly has the right to reconsider it. The assembly may pass it with or without the
amendments proposed by the Council, and again send it to the Council. When a bill approved by
the Assembly is sent to the Council for the first time, it may retain it for three months, but in the
case when it is sent for the second time and is kept in the Council for one month only, the bill is
deemed as having been passed. This evidently demonstrates the Assembly’s absolute superiority
over the LC. In the case of Money Bills, the State Assembly’s powers are the same as those of
the Lok Sabha. It is evident that the position of the Vidhan Parishad is haplessly weak. Even, in
theory, it cannot be compared to the Rajya Sabha that, in spite of being the upper chamber of the
Union Legislature, has some effective powers.
• There is no provision in the Constitution for a joint sitting of the State Legislature. It is to
be noted that while the Vidhan Sabha can override the Vidhan Parishad, the vice versa is
never possible. A non-money bill that is passed by the Vidhan Parishad can be rejected
by the Vidhan Sabha more than once.
• The LC members do not participate in the election of the President of the country. Apart
from that, they do not have any meaningful role in any bill’s rectification nor in a
constitutional amendment. In practical terms, the Legislature of a State implies its
Legislative Assembly which possesses the following major powers and functions:
• It can create laws on any subject in the State List; it can also create laws on the
Concurrent List provided the law does not contradict or conflict any law already made by
the Parliament.
• The Assembly asserts control over the Council of Ministers. Assembly members can
question the ministers, move motions and resolutions, and also pass a vote of censure in
order to dismiss the state government. The government ministry is collectively
accountable to the Legislative Assembly. If the ministry is defeated in the Assembly, it
amounts to the passing of a no-confidence vote against the government.
• The assembly controls the State’s finances. A money Bill can emerge from the Assembly
and it is considered passed by the LC after a lapse of fourteen days after reference made
to it by the Sabha. It could reject or pass the grants or reduce their amount indicating
rejection or adoption of the budget and hence, implying victory or defeat of the State
Government. Therefore, no tax can be levied or withdrawn without the consent of the
Vidhan Sabha.
• The Assembly has constituent powers. With reference to Article 368, certain Bills of
Constitutional amendment after being passed by the Parliament would be referred to the
States for the process of ratification. In these cases, the Vidhan Sabha has a role to play.
It should give its judgement by passing a resolution by a simple majority indicating
approval or disapproval of the said Bill. There is a provision wherein the President shall
refer to the state assembly of a state before he recommends the introduction of a bill
which concerns with the alteration of the concerned state’s boundary lines or its
reorganisation in such a manner that its territory is increased or decreased.
Some other powers of the State Assembly are as under:
• It elects its Speaker as well as Deputy Speaker. It can also remove them by a no-
confidence vote.
• It participates in the election of India’s President.
• It also considers reports presented by agencies such as the Auditor-General, State Public
Service Commission, and others. Hence, it is evident that the Vidhan Sabha is the
powerful and popular chamber of the State Legislature. In theory, it is somewhat parallel
to the Lok Sabha.
Limitations on the powers of State Legislature
• Certain types of Bills cannot be moved in the State Legislature without the previous
sanction of the President of India
• Certain Bills passed by the State Legislature cannot become operative until they receive
the President’s assent after having been reserved for his consideration by the Governor;
• The Constitution empowers Parliament to frame laws on subjects included in the State
List if the Council of States declares that it is necessary and expedient in the national
interest that Parliament should Legislate on these subjects
• Parliament can exercise the power to make laws for the whole or any part of the territory
of India with respect to any of the matters enumerated in the State List, while a
Proclamation of emergency is in operation
• The Legislative competence of Parliament can also extend to the subjects enumerated in
the State List during the operation of a proclamation of the breakdown of the
Constitutional machinery.
The State High Courts
At present there are 21 High Courts for 28 States and seven Union Territories. The High Courts
are the highest courts at State level, but being part of integrated Indian judiciary, they work under
the superintendence, direction and control of the Supreme Court.
Composition T
There is a High Court for each State. However, there can be a common High Court for two or
more States. For example, the States of Punjab and Haryana and the Union Territory Structure of
Government of Chandigarh have a common High Court situated at Chandigarh. Similarly, the
High Court of Guwahati is common for seven northeastern States of Assam, Nagaland, Manipur,
Meghalaya, Mizoram, Tripura and Arunachal Pradesh. Delhi, though not a State, has its own
separate High Court. Every High Court has a Chief Justice and a number of judges. The number
of judges varies from State to State. The number of judges of each High Court is determined by
the President. The judges of the High Courts are appointed by the President of India. While
appointing Chief Justice of a High Court, the President has to consult the Chief Justice of the
Supreme Court and the Governor of the State concerned. While appointing other judges, the
President consults the Chief Justice of the Supreme Court, the Chief Justice of the High Court
and Governor of the State concerned. The judges can be transferred from one High Court to
another by the President. As mentioned earlier, consultation with the Chief Justice of the
Supreme Court in respect of appointments and transfers of the judges of the High Court is also
obligatory and binding for the President.
Qualifications, Tenure and Removal of the Judges
In order to be appointed as a judge of a High Court, the person concerned should possess
following qualifications:
(i) He or she should be a citizen of India.
(ii) He or she should have held a judicial office, at the district level or below for at least ten
years.
OR
He or she should have been an advocate in one or more High Courts for at least ten years
continuously without break.
Once appointed, the High Court judges hold office till they attain the age of 62 years. After
retirement, they may be appointed judges of the Supreme Court or they may practice as
advocates either in the Supreme Court or in any High Court other than the High Court in which
they served as judges.
A High Court judge may be removed before he or she attains the age of 62 years, only on the
ground of incapacity or proved misbehavior.
He or she may be removed if both the Houses of Parliament adopt a resolution by a majority of
their total membership and by two thirds majority of members present and voting, separately in
each House in the same session. Such a resolution is submitted to the President, who then can
remove the concerned judge. This procedure is same as for removal of judges of the Supreme
Court.
Powers and Jurisdiction of the High Court
• The High Courts have the power to hear and decide cases which are brought directly to it.
This power is called Original Jurisdiction.
• When a High Court hears an appeal against the decision of a lower court, it is called
Appellate Jurisdiction. A High Court is mostly a court of appeal. Appeals in both civil
and criminal cases are brought to it against the decisions of the lower courts.
Original Jurisdiction
• The original jurisdiction of the High Courts is very limited. Cases of alleged violation of
fundamental rights can be started in High Courts, or in the Supreme Court. The High
Courts have the power to issue orders to restore the fundamental rights of the people.
• A High Court can hear election petition in its original jurisdiction, challenging the
election of a Member of Parliament or State Legislative Assembly. It can set aside the
election of a member if it finds that he or she used corrupt means in his or her election.
• All the lower courts function under the superintendence control and guidance of the High
Court in the State.
• High Courts hear appeals against the judgements of the subordinate courts. In civil cases,
appellate jurisdiction extends to all such cases which involve an amount exceeding Rs. 5
lakh.
 • Any party to a civil dispute, which is dissatisfied with the decision of the District Court
may appeal against the decision of the District Court in the High Court.
• It also hears cases relating to patents and designs, succession, land acquisition,
insolvency and guardianship.
• The High Courts hear and decide appeals against decisions of the sessions courts in
criminal cases. An accused who is found guilty by a sessions court, and awarded a
sentence may file an appeal against the verdict of the sessions court. Sometimes even
State may appeal against a sessions court judgement for enhancement of punishment. The
High Court may accept the decision of the sessions court, or alter it and increase or
reduce the sentence, or change the nature of sentence, or may acquit an accused.
However, if an accused is awarded death sentence by the sessions court, the sentence
must be confirmed by the High Court before the person is hanged to death. Even if the
accused does not file an appeal against death sentence, the State refers it to the High
Court for confirmation.
Superintendence of Subordinate Courts
A High Court has the right of superintendence and control over all the subordinate courts in all
the matter of judicial and administrative nature. In the exercise of its power of superintendence,
the High Court may call for any information from the lower courts; may make and issue general
rules and prescribe norms for regulating the practice and proceedings of these courts; and it may
issue such directions, from time to time, as it may deem necessary. It can also make rules and
regulations relating to the appointment, demotion, promotion and leave of absence for the
officers of the subordinate courts.
Court of Record
A High Court is also a court of record, like the Supreme Court. Lower courts in a State are bound
to follow the decisions of the High Court which are cited as precedents. A High Court has also
the power to punish for its contempt or disrespect.
Subordinate Courts
In each district of India there are various types of subordinate or lower courts. They are civil
courts, criminal courts and revenue courts. These Courts hear civil cases, criminal cases and
revenue cases, respectively. Civil cases pertain to disputes between two or more persons
regarding property, breach of agreement or contract, divorce or landlord – tenant disputes. Civil
Courts settle these disputes. They do not award any punishment as violation of law is not
involved in civil cases. Criminal cases relate to violation of laws. These cases involve theft,
dacoity, rape, pickpocketing, physical assault, murder, etc. These cases are filed in the lower
court by the police, on behalf of the state, againt the accused. In such cases the accused, if found
guilty, is awarded punishment like fine, imprisonment or even death sentence. Revenue cases
relate to land revenue on agriculture land in the district.
Qualifications and Appointment of Judges
• The judges of subordinate courts are appointed by the Governor in consultation with the
Chief Justice of the High Court of the concerned State.
 • Any person who has been an advocate for at least seven years or one who is in the
Structure of Government service of the State or the Central Government is eligible to be a
judge of the District Court provided he/she possess the required legal qualifications.
Civil Courts
The Court of the District Judge is the highest civil court in a district to deal with civil cases. Very
often the same court is called the Court of District and Sessions Judge, when it deals with both
civil and criminal cases at the district level. The judge of this court is appointed by the Governor
of the State. Below the Court of District Judge, there may be one or more courts of sub judges in
the district. Separate family courts, which are equal to courts of sub judge, have been established
in districts to exclusively hear cases of family disputes, like divorce, custody of children, etc.
Below them there are courts of munsifs and small causes courts which decide cases involving
petty amounts. No appeal can be made against the decisions of the small causes courts. All these
courts hear and settle civil disputes. The Court of the District Judge (called the District Courts)
hears not only appeals against the decisions of the courts of sub judges, but also some of the
cases begin directly in the Court of District Judge itself. Appeals against the decisions of this
court may be heard by the High Court of the State. Civil Courts deal with cases pertaining to
disputes between two or more persons regarding property, divorce, contract, and breach of
agreement or landlord – tenant disputes.
Criminal Courts
The Court of the Sessions Judge (known as Sessions Courts) is the highest court for criminal
cases in a district. Below this court, there are courts of magistrates of First, Second and Third
class. In metropolitan cities like Delhi, Calcutta, Mumbai and Chennai, First Class Magistrates
are called Metropolitan Magistrates. All these criminal courts are competent to try the accused
and to award punishment, as sanctioned by law, to those who are found guilty of violation of
law. Criminal Courts hear criminal cases which are related to violation of laws. These cases
involve theft, dacoity, rape, arson, pick-pocketing, physical assault, murder etc. In such cases the
guilty person is awarded punishment. It may be fine, imprisonment or even death sentence.
Normally every accused is presented by the police before a magistrate. The magistrate can
finally dispose off cases of minor crime. But, when a magistrate finds prima-facie case of serious
crime he/she may commit the accused to the sessions court. Thus, sessions courts try the accused
who are sent upto them by the magistrate concerned. As mentioned above, an accused who is
awarded death sentence by the sessions court, can be hanged to death only after his sentence is
confirmed by the High Court.
Revenue Courts
Revenue courts deal with cases of land revenue in the State. The highest revenue court in the
district is the Board of Revenue. Under it are the Courts of Commissioners, Collectors,
Tehsildars and Assistant Tehsildars. The Board of Revenue hears the final appeals against all the
lower revenue courts under it.
 MODULE 3:
Introduction and Basic
Information about
Legal System
The Legal System: Sources of Law in India
Sources of law are the origins of laws, the binding rules that enable any state to govern its
territory. The term “source of law” may sometimes refer to the sovereign or to the seat of power
from which the law derives its validity. The sources of law are classified into the following
categories:
A. Customs: Customs can simply be explained as an established mode of social behavior within
a community. All customs cannot be accepted as sources of law. The courts have laid down some
essential tests for customs to be recognized as valid sources of law. These tests are:
a) Antiquity: In order to be legally valid customs should have been in existence for a long time.
b) Continuous: A custom to be valid should have been in continuous practice.
c) Exercised as a matter of right: Custom must be enjoyed openly and with the knowledge of
the community.
d) Reasonableness: A custom must conform to the norms of justice and public utility.
e) Morality: A custom which is immoral or opposed to public policy cannot be a valid custom.

B. Judicial precedent: Judicial precedent refers to previously decided judgments of the superior
courts, such as the High Courts and the Supreme Court, which judges are bound to follow.
System of judicial precedent is based on the hierarchy of courts. This binding character of the
previously decided cases is important, considering the hierarchy of the courts established by the
legal systems of a particular country. In the case of India, this hierarchy has been established by
the Constitution of India.
C. Legislation: The term ‘legislation’ is derived from the Latin word legis which means 'law'
and latum which means “to make”. Legislation is backed by the authority of the sovereign, and it
is directly enacted and recognized by the State. The legislation is considered as a primary source
of law in India. Legislation has a wide ambit and it is used to regulate, authorize, to enable, to
provide funds, to prescribe, to sanction, grant, and declare or to restrict. The legislature is framed
by the parliament in the form of new acts, new laws, repeal and amendment of old laws.

Court Structure in India

India has a single integrated judicial system. The judiciary in India has a pyramidal structure
with the Supreme Court (SC) at the top. High Courts are below the SC, and below them are the
district and subordinate courts. The lower courts function under the direct superintendence of the
higher courts.

The diagram below gives the structure and organization of the judicial system in the country.
Acts of Parliament

Acts of parliament, sometimes referred to as primary legislation, are texts of law passed by the
legislative body of a jurisdiction (often a parliament or council). An Act of Parliament makes the
system of a specific or particular law and tends to contain an outline of the purpose for the Act.
By delegating the legislation by Parliament to the Executive or any subordinate, it empowers
different people or bodies to integrate more details to an Act of Parliament. Parliament along
these lines licenses others to make laws and guidelines through delegated legislation.
How a Bill does Becomes an Act?

Refer to the below link:

[Link]
[Link]

Common Law or Case law

Common law is an unwritten body of laws based on judicial precedents. For unusual cases where
the result cannot be decided on the basis of current laws or written law regulations, common
law guides the decision-making process.
Common law is followed in many parts of the world, including Australia, Canada, Hong Kong,
India, New Zealand, and the United Kingdom. Common law, also known as jurisprudence, is a
body of unwritten laws based on judicial precedents.
The concept is based on institutionalized judgments and interpretations from the courts and the
jury. Common laws also illustrate the motivation for the implementation of new legislation.
As compared to civil law, the common law's purpose is to produce consistent results by applying
the same definition requirements. In some cases, the precedent depends on the individual
jurisdictions' case-by-case procedures. As a consequence, common law elements can vary from
one case to another.
Understanding Common Law
A system of common law is less prescriptive than a system of civil law. Therefore, a government
may wish to enshrine its citizens' protections in specific legislation related to the proposed
infrastructure program.
Features of a Common Law System
• There will be no codified laws or written constitution always.
• Judicial decisions made at the highest courts can usually be reversed only by the same
court or by law.
• Typically, all that is not specifically prohibited by law is permitted.

Principles taken from decisions of judges constitute binding legal rules:

A precedent is a principle or a rule that was declared or laid down in a previous legal case. It is
binding or advisory on tribunals and courts when a similar case with similar facts arises before it.
These are nothing but previous legal decisions that have been taken by judges in similar cases in
these courts that provide an outline as to what must be held in similar cases that arise before the
court or similar cases that arise in lower courts or similar cases that arise before a lesser bench. A
lesser bench is when the number of judges is lesser than those that decided the case that the new
bench will be basing their decision on. In the 18th century, the Government of India Act, 1935,
held that decisions made in Federal courts and in the Privy Councils would be binding on the
courts during the reign of the British. Since the 18th century, precedents have been a legal
characteristic of the Indian legal system and have helped many judges form decisions and reverse
decisions that later on were found to be arbitrary or mindless.

Types of precedents

1. Declaratory and Original: In declaratory precedents, the mere application of a rule

in a previous legal case is used. Original precedents result in the creation of new laws.
Here new laws are created and applied. An example can be where we considered that
the power to amend the constitution was not restricted till it was decided that limits
must be placed on the same and that all laws in the Ninth Schedule henceforth must
also be tested against the basic structure.
2. Persuasive: Here the precedent is not necessarily needed to be followed. The judge
will rely heavily on this case and take it into consideration. It is not directly
considered as a source of law but is seen as a form of historical precedents. This is
usually seen in High Courts, where the judgements in one High Court can be
considered as persuasive precedents in another. This can be seen when similar cases
arise in various High Courts the verdict can be made by relying upon judgments from
other High Courts. They will not be binding but will be persuasive and will act in
favour of the litigating party in whose favour the previous verdicts have been made.
3. Absolutely authoritative: In these cases, the verdict that has been earlier must
mandatorily be followed by the judge. Even if the judge thinks that it is a wrong
judgement they are required to follow that precedent because of sheer numbers. This
is usually seen in cases where the bench is smaller than the bench that decided upon
the precedent that the judge is relying on. This is also possible in cases of hierarchy,
where certain courts have to rely on decisions made by superior courts.
4. Conditionally authoritative: In this case, the precedents by a general rule are
considered authoritative but can be disregarded in cases of the parties appearing
before the Supreme Court. The decision can also be overturned. An example can be
where we considered that the power to amend the constitution was complete till it was
decided that limits must be placed on the same and that all laws in the Ninth Schedule,
henceforth must also be tested against the basic structure.

Relevance of judicial precedents

India has a unified judicial system with a single constitution. This means that there is only one
Judiciary that is responsible for the interpretation of the Constitution. The Apex Court is the
ultimate interpreter. This is a part of the basic framework of our Constitution. We are Federal
with a strong Centre, unlike the United States where they follow federalism in the true sense.
This was done with the view of ensuring that the various provinces while having their own State
Legislatures are held together by a strong centre. This was to make sure that riots and protests do
not break out in the newly formed nation that had not only been ruled by the Britishers but had
also recently witnessed a partition that resulted in a refugee crisis as severe as the refugee crisis
in Europe after the Second World War. The person who is best equipped to make a decision is
the Supreme Court and its judges.

Consumer Protection Act, 2019

The Consumer Protection Act, 2019 established the Central Consumer Protection
Authority (CCPA) whose primary objective is to promote, protect and enforce the rights of
consumers.
It is empowered to:

• Conduct investigations into violations of consumer rights and institute

complaints/prosecution.
• Order recall of unsafe goods and services.
• Order discontinuance of unfair trade practices and misleading advertisements.
• Impose penalties on manufacturers/endorsers/publishers of misleading advertisements.

Product Liability:
A manufacturer or product service provider or product seller will be held responsible to
compensate for injury or damage caused by defective product or deficiency in services
Basis for product liability action:
1. Manufacturing defect.
2. Design defect.
3. Deviation from manufacturing specifications.
4. Not conforming to express warranty.
5. Failing to contain adequate instructions for correct use.
6. Service provided-faulty, imperfect or deficient.
Punishment for Manufacture or Sale of Adulterated/Spurious Goods: In case of the first
conviction, a competent court may suspend any license issued to the person for a period of up to
two years and in case of second or subsequent conviction, may cancel the license permanently.
Other Rules and Regulations:
As per the Consumer Disputes Redressal Commission Rules, there will be no fee for filing
cases up to Rs. 5 lakh. The credit of the amount due to unidentifiable consumers will go to
the Consumer Welfare Fund (CWF). State Commissions will furnish information to the Central
Government on a quarterly basis on vacancies, disposal, the pendency of cases and other matters.
Central Consumer Protection Council (CCPC)
It is an advisory body on consumer issues, headed by the Union Minister of Consumer Affairs,
Food and Public Distribution with the Minister of State as Vice Chairperson and 34 other
members from different fields.
It has a three-year tenure and has Minister-in-charge of consumer affairs from two States from
each region- North, South, East, West, and North-East Region.

Tribunals
Tribunal is a quasi-judicial institution that is set up to deal with problems such as resolving
administrative or tax-related disputes. It performs a number of functions like adjudicating
disputes, determining rights between contesting parties, making an administrative decision,
reviewing an existing administrative decision and so forth.

Why is there a Need for Tribunals?

▪ To overcome the situation that arose due to the pendency of cases in various Courts,
domestic tribunals and other Tribunals have been established under different Statutes,
hereinafter referred to as the Tribunals.
▪ The Tribunals were set up to reduce the workload of courts, to expedite decisions and
to provide a forum which would be manned by lawyers and experts in the areas falling
under the jurisdiction of the Tribunal.
▪ The tribunals perform an important and specialized role in justice mechanism. They take a
load off the already overburdened courts. They hear disputes related to the environment,
armed forces, tax and administrative issues.
What are the Constitutional Provisions?

▪ Tribunals were not part of the original constitution, it was incorporated in the Indian
Constitution by 42nd Amendment Act, 1976.
o Article 323-A deals with Administrative Tribunals.
o Article 323-B deals with tribunals for other matters.
▪ Under Article 323 B, the Parliament and the state legislatures are authorized to provide for
the establishment of tribunals for the adjudication of disputes relating to the following
matters:
o Taxation
o Foreign exchange, import and export
o Industrial and labour
o Land reforms
o Ceiling on urban property
o Elections to Parliament and state legislatures
o Food stuff
 o Rent and tenancy rights
▪ Articles 323 A and 323 B differ in the following three aspects:
o While Article 323 A contemplates the establishment of tribunals for public service
matters only, Article 323 B contemplates the establishment of tribunals for certain
other matters (mentioned above).
o While tribunals under Article 323 A can be established only by Parliament, tribunals
under Article 323 B can be established both by Parliament and state legislatures with
respect to matters falling within their legislative competence.
o Under Article 323 A, only one tribunal for the Centre and one for each state or two or
more states may be established. There is no question of the hierarchy of tribunals,
whereas under Article 323 B a hierarchy of tribunals may be created.
What are the Different Tribunals in India?

▪ Administrative Tribunals
o Administrative Tribunals was set-up by an act of Parliament, Administrative
Tribunals Act, 1985. It owes its origin to Article 323 A of the Constitution.
• It adjudicates disputes and complaints with respect to recruitment and conditions
of service of persons appointed to the public service and posts in connection
with the affairs of the Union and the States.
o The Administrative Tribunals Act, 1985 provides for three types of tribunals:
• The Central Government establishes an administrative tribunal called
the Central Administrative Tribunal (CAT).
• The Central Government may, upon receipt of a request in this behalf from
any State Government, establish an administrative tribunal for such State
employees.
• Two or more States might ask for a joint tribunal, which is called the Joint
Administrative Tribunal (JAT), which exercises powers of the administrative
tribunals for such States.
o There are tribunals for settling various administrative and tax-related disputes,
including:
• Central Administrative Tribunal (CAT), Income Tax Appellate Tribunal
(ITAT), Customs, Excise and Service Tax Appellate Tribunal
(CESTAT), National Green Tribunal (NGT), Competition Appellate
Tribunal (COMPAT) and Securities Appellate Tribunal (SAT), among
others.
▪ Central Administrative Tribunal
o It has jurisdiction to deal with service matters pertaining to the Central Government
employees or of any Union Territory, or local or other government under the control
 of the Government of India, or of a corporation owned or controlled by the Central
Government.
• The CAT was set-up on 1 November 1985.
• It has 17 regular benches, 15 of which operate at the principal seats of High
Courts and the remaining two at Jaipur and Lucknow.
• These Benches also hold circuit sittings at other seats of High Courts. The
tribunal consists of a Chairman, Vice-Chairman and Members.
• The Members are drawn, both from judicial as well as administrative
streams so as to give the Tribunal the benefit of expertise both in legal and
administrative spheres.
o The appeals against the orders of an Administrative Tribunal shall lie before
the Division Bench of the concerned High Court.
▪ State Administrative Tribunal
o Article 323 B empowers the state legislatures to set up tribunals for various matters
like levy, assessment, collection and enforcement of any of the tax matters
connected with land reforms covered by Article 31A.
▪ Water Disputes Tribunal
o The Parliament has enacted Inter-State River Water Disputes (ISRWD) Act,
1956 have formed various Water Disputes Tribunal for adjudication of disputes
relating to waters of inter-State rivers and river valleys thereof.
▪ Armed Forces Tribunal (AFT)
o It is a military tribunal in India. It was established under the Armed Forces Tribunal
Act, 2007.
o It has provided the power for the adjudication or trial by AFT of disputes and
complaints with respect to commission, appointments, enrolments and conditions of
service in respect of persons subject to the Army Act, 1950, The Navy Act, 1957
and the Air Force Act, 1950.
o Besides the Principal Bench in New Delhi, AFT has Regional Benches at
Chandigarh, Lucknow, Kolkata, Guwahati, Chennai, Kochi, Mumbai and Jaipur.
• Each Bench comprises of a Judicial Member and an Administrative Member.
o The Judicial Members are retired High Court Judges and Administrative
Members are retired Members of the Armed Forces who have held the rank
of Major General/ equivalent or above for a period of three years or more, Judge
Advocate General (JAG), who have held the appointment for at least one year are
also entitled to be appointed as the Administrative Member.
▪ National Green Tribunal (NGT)
o The National Environment Tribunal Act, 1995 and National Environment
Appellate Authority Act, 1997 were found to be inadequate giving rise to demand
for an institution to deal with environmental cases more efficiently and effectively.
o The Law Commission in its 186th Report suggested multi-faceted Courts with judicial
and technical inputs referring to the practice of environmental Courts in Australia and
New Zealand.
• As a result NGT was formed as a special fast-track, quasi-judicial body
comprising of judges and environment experts to ensure expeditious disposal of
cases.
o The National Green Tribunal was established in 2010 under the National Green
Tribunal Act 2010 as a statutory body.
• It was setup for effective and expeditious disposal of cases relating
to environmental protection and conservation of forests and other natural
resources.
• It also ensures enforcement of any legal right relating to environment and giving
relief and compensation for damages to persons and property.
o The Tribunal is mandated to make and endeavour for disposal of applications or
appeals finally within 6 months of filing of the same.
o Initially, the NGT is proposed to be set up at five places of sittings and will follow
circuit procedure for making itself more accessible.
• New Delhi is the Principal Place of Sitting of the Tribunal and Bhopal, Pune,
Kolkata and Chennai shall be the other four place of sitting of the Tribunal.
▪ Income Tax Appellate Tribunal
o Section 252 of the Income Tax Act, 1961 provides that the Central Government shall
constitute an Appellate Tribunal consisting of many Judicial Members and
Accountant members as it thinks fit to exercise the powers and functions conferred on
the Tribunal by the Act.
What is the Difference Between Tribunal and Court?

▪ Administrative Tribunals and Ordinary Courts both deal with the disputes between the
parties which affects the rights of the subjects.
▪ Administrative Tribunal is not a court. Some notable differences between a court and
Administrative Tribunal are as follows -
 No. Court of Law Tribunal

A court of law is a part of

the traditional judicial An Administrative Tribunal is
1. an agency created by the
system whereby judicial powers
are derived from the state. statute and invested with judicial
power.

Tribunal is also known as the Quasi-

The Civil Courts have judicial judicial body. Tribunals have the
2. power to try all suits of a civil power to try cases of special matter
nature unless the cognizance is which are conferred on them by
expressly or impliedly barred. statutes.

Judges of the ordinary courts of

Tenure, terms and conditions of the
law are independent of the
services of the members
executive in respect of their
3. of Administrative Tribunal are
tenure, terms and conditions of
entirely in the hands of
service etc. Judiciary is
Executive (government).
independent of Executive.

The president or a member of the

4. The presiding officer of the court Tribunal may not be trained as well in
of law is trained in law. law. He may be an expert in the field
of Administrative matters.

A judge of a court of law must be An Administrative Tribunal may be

5. impartial who is not interested in a party to the dispute to be decided
the matter directly or indirectly. by it.

A court of law is bound by all An Administrative Tribunal is not

6. the rules of evidence and bound by rules but bound by
procedure. the principles of nature of Justice.
 Administrative Tribunal may decide
Court must decide all
questions by taking into account
questions objectively on the basis
7. departmental policy, the decision of
of evidence and materials on
Administrative Tribunal may be
record.
subjective rather than objective.

A court of law can decide vires of Administrative Tribunal cannot do

8. a legislation. so.
 UNIT 4: INTELLECTUAL
PROPERTY LAWS & I.T. ACT 2000

K.N.C. 501
⦁ The Information Technology Act, 2000 or ITA, 2000 or IT Act,
was notified on October 17, 2000.
⦁ It is the law that deals with cybercrime and electronic
commerce in India.
⦁ In 1996, the United Nations Commission on International
Trade Law (UNCITRAL) adopted the model law on electronic
commerce (e-commerce) to bring uniformity in the law in
different countries.
🞂 Further, the General Assembly of the United
Nations recommended that all countries must consider this
model law before making changes to their own laws. India
became the 12th country to enable cyber law after it passed the
Information Technology Act, 2000.
⦁ While the first draft was created by the Ministry of
Commerce, Government of India as the Ecommerce Act, 1998, it
was redrafted as the ‘Information Technology Bill, 1999’, and
passed in May 2000.
⦁ Information Technology Act 2000, has 13 chapters, 94 sections
and 4 schedules. –
⦁ First 14 sections deals with some legal aspects concerning digital
signature.
⦁ Further other sections deal with certifying authorities who are
licensed to issue digital signature certificate.
⦁ Sections 43 to 47 provide for penalties and compensation.
⦁ Sections 48 to 64 deals with Tribunals a appeal to high court.
⦁ Section 65 to 79 of the act deals with offences.
⦁ Section 80 to 94 deals with miscellaneous of the Act.
⦁ Grant legal recognition to all transactions done via electronic
exchange of data or other electronic means of communication or e-
commerce, in place of the earlier paper-based method of
communication.
⦁ Give legal recognition to digital signatures for the authentication of
any information or matters requiring legal authentication
⦁ Facilitate the electronic filing of documents with Government
agencies and also departments
⦁ Facilitate the electronic storage of data
⦁ Give legal sanction and also facilitate the electronic transfer of
funds between banks and financial institutions
⦁ Grant legal recognition to bankers under the Evidence Act, 1891 and
the Reserve Bank of India Act, 1934, for keeping the books of
accounts in electronic form.
⦁ All electronic contracts made through secure electronic
channels are legally valid.
⦁ Legal recognition for digital signatures.
🞂 Security measures for electronic records and also digital
signatures are in place
⦁ A procedure for the appointment of adjudicating officers for
holding inquiries under the Act is finalized
⦁ Provision for establishing a Cyber Regulatory Appellant
Tribunal under the Act. Further, this tribunal will handle all
appeals made against the order of the Controller or
Adjudicating Officer.
⦁ An appeal against the order of the Cyber Appellant Tribunal is
possible only in the High Court
⦁ Provision for the appointment of the Controller of Certifying
Authorities (CCA) to license and regulate the working of
Certifying Authorities. The Controller to act as a repository of
all digital signatures.
⦁ The Act applies to offences or contraventions committed
outside India
⦁ Senior police officers and other officers can enter any public
place and search and arrest without warrant
⦁ Provisions for the constitution of a Cyber Regulations
Advisory Committee to advise the Central Government and
Controller.
⦁ A digital signature is exactly what it sounds like a modern
alternative to signing documents with paper and pen.
⦁ It uses an advanced mathematical technique to check the
authenticity and integrity of digital messages and documents.
It guarantees that the contents of a message are not altered in
transit and helps us overcome the problem of impersonation
and tampering in digital communications.
⦁ Digital signatures also provide additional information such as
the origin of the message, status, and consent by the signer.
⦁ It is the use of electronic means, to promote good governance.
It connotes the implementation of information technology in
the government processes and functions so as to cause simple,
moral, accountable and transparent governance. It entails the
access and delivery of government services, dissemination of
information, communication in a quick and efficient manner.
⦁ Reduced corruption
⦁ High transparency
⦁ Increased convenience
⦁ Growth in GDP
⦁ Direct participation of constituents
⦁ Reduction in overall cost.
⦁ Expanded reach of government
G2G (Government to Government): When the exchange of
information and services is within the periphery of the
government, is termed as G2G interaction. This can be both
horizontal, i.e. among various government entities and vertical,
i.e. between national, state and local government entities and
within different levels of the entity.
G2C (Government to Citizen): The interaction amidst the
government and general public is G2C interaction. Here an
interface is set up between government and citizens, which
enables citizens to get access to wide variety of public services.
The citizens has the freedom to share their views and grievances
on government policies anytime, anywhere.
G2B (Government to Business): In this case, the e-governance
helps the business class to interact with the government
seamlessly. It aims at eliminating red-tapism, saving time, cost
and establish transparency in the business environment, while
interacting with government.
G2E (Government to Employees): The government of any
country is the biggest employer and so it also deals with
employees on a regular basis, as other employers do. ICT helps
in making the interaction between government and employees
fast and efficient, along with raising their level of satisfaction by
providing perquisites and add-on benefits.
Secure electronic record.
Where any security procedure has been applied to an electronic record at a
specific point of time. then such record shall be deemed to be a secure electronic
record from such point of time to the time of verification.
Secure digital signature.
If, by application of a security procedure agreed to by the parties concerned, it can
be verified that a digital signature, at the time it was affixed, was-
⦁ unique to the subscriber affixing it.
⦁ capable of identifying such subscriber.
⦁ created in a manner or using a means under the exclusive control of the
subscriber and is linked to the electronic record to which it relates in such a
manner that if the electronic record was altered the digital signature would be
invalidated.
then such digital signature shall be deemed to be a secure digital signature.
⦁ A Digital Signature Certificate is a secure digital key that is
issued by the certifying authorities for the purpose of
validating and certifying the identity of the person holding this
certificate. Digital Signatures make use of the public key
encryptions to create the signatures.
⦁ A digital signature certificate (DSC) contains information
about the user’s name, pin code, country, email address, date
of issuance of certificate and name of the certifying authority.
⦁ Digital Signature Certificates are helpful in authenticating the personal
information details of the individual holder when conducting business
online.
⦁ Reduced cost and time: Instead of signing the hard copy documents
physically and scanning them to send them via e-mail, you can digitally
sign the PDF files and send them much more quickly.
⦁ The Digital Signature certificate holder does not have to be physically
present to conduct or authorize a business
⦁ Data integrity: Documents that are signed digitally cannot be altered
or edited after signing, which makes the data safe and secure.
⦁ The government agencies often ask for these certificates to cross-check
and verify the business transaction
⦁ Authenticity of documents: Digitally signed documents give
confidence to the receiver to be assured of the signer’s authenticity.
They can take action on the basis of such documents without getting
worried about the documents being forged.
⦁ Section 43: Where a person without the permission of owner or
any other person-in-charge damage the Computer, or Computer
System, or Computer Network, the he shall be liable for Penalty
and Compensation to such person so affected.
⦁ Section 44: Where a person fails to furnish any document,
return, report to the controller, or certifying authority, then he
shall be liable to pay penalty upto Rs.1,50,000/- per failure.
Further where a person fails to furnish any information, books or
other documents within time specified, then he shall be liable to
pay penalty upto Rs.5,000/- per day. Further provided that where
a person fails to maintain books of accounts or other records,
then he shall be liable to pay penalty upto Rs.10,000/- per day.
⦁ Section 66D: Any person dishonestly, or fraudulently by
means of any communication device or computer resource
cheats by personating, then he shall be liable to pay penalty
upto Rs.1,00,000/-, or Imprisonment upto 3 years, or both.
⦁ Section 66E: Any person intentionally captures, publishes, or
transmits image of private area of any person without consent,
then he shall be liable to pay penalty upto Rs.2,00,000/-, or
Imprisonment upto 3 years, or both.
⦁ Section 66F: Any person does any act electronically, or with
use of computer with intent to threaten unity, integrity,
security, or sovereignty of India, then he shall punishable
with Imprisonment for Life.
⦁ Section 65: Any person tamper, conceal, destroy, or alter any computer
source document intentionally, then he shall be liable to pay penalty
upto Rs.2,00,000/-, or Imprisonment upto 3 years, or both.
⦁ Section 66: Any person dishonestly, or fraudulently does any act as
referred in Section 43, then he shall be liable to pay penalty
upto Rs.5,00,000/-, or Imprisonment upto 3 years, or both.
⦁ Section 66B: Any person dishonestly, or fraudulently receives or retains
any stolen computer resource or communication device, then he shall be
liable to pay penalty upto Rs.1,00,000/-, or Imprisonment upto 3 years,
or both.
⦁ Section 66C: Any person dishonestly, or fraudulently make use of
Electronic Signature, Password or any other Unique Identification
Feature of any other person, then he shall be liable to pay penalty
upto Rs.1,00,000/-, or Imprisonment upto 3 years, or both.
⦁ Intellectual Property Rights (IPR) are an essential but
often overlooked set of rights. The creative rights over an
original piece of work, invention or even an idea behind a
business can come under the purview of Intellectual
Property Rights.
⦁ With the emergence of the digital age, instances of
plagiarism and copyright infringements have increased
manifold. Strict laws to prevent theft of intellectual
property have become absolutely necessary to create an
atmosphere of trust and to encourage innovation.
Patent law is a component of the broader framework regarded as
intellectual property. Legal aspects include protecting
your intellectual property rights, including trademarking,
copyrighting and protecting trade secrets.
While trying to patent an invention, the inventor must ensure that
their design meets three basic requirements.
⦁ Novelty: For an invention to be considered a novelty, it has to be
new.
⦁ Usefulness: For an invention to be considered useful it should be
able to perform what it intends to while serving a useful purpose
⦁ Inventive or lacking obviousness: An Inventive patent is
provided when a series of original steps are taken in the creation
of an idea or product.
⦁ Latin term patere, "to lay open" (i.e., to make available for
public inspection), In English term letters patent, royal
decree granting exclusive rights to a person. Patents in the
modern sense originated in 1474, in the Republic of Venice
⦁ A patent is a form of intellectual property. It consists of a
set of exclusive rights granted by a government to a true
and first inventor or their assignee for a limited period of
time in exchange for the public disclosure of an invention.
Patent is an exclusive right granted to a person who has
invented a new and useful article or an improvement over
an existing article.
⦁ National applications : National applications are generally
filed at a national patent office, such as the United Kingdom
Patent Office, to obtain a patent in the country of that
office. The application may either be filed directly at that
office, or may result from a regional application or from an
international application under the Patent Cooperation
Treaty (PCT), once it enters the national phase.

⦁ Regional applications : A regional patent application is one

which may have effect in a range of countries. The
European Patent Office (EPO) is an example of a Regional
patent office. The EPO grants patents which can take effect
in some or all countries contracting to the European Patent
Convention (EPC), following a single application process.
⦁ International applications : (under the Patent Cooperation Treaty)
The Patent Cooperation Treaty (PCT) is operated by World
Intellectual Property Organization (WIPO) and provides a
centralized application process, but patents are not granted under
the treaty. The PCT system enables an applicant to file a single
patent application in a single language. The application, called an
international application, can, at a later date, lead to the grant of a
patent in any of the states contracting to the PCT. WIPO, or more
precisely the International Bureau of WIPO, performs many of
the formalities of a patent application in a centralized manner,
therefore avoiding the need to repeat the steps in all countries in
which a patent may ultimately be granted. The main advantage of
proceeding via the PCT route is that the option of obtaining
patents in a wide range of countries is retained
1. Standard application : A standard patent application is a patent
application containing all of the necessary parts (e.g. a written description
of the invention and claims) that are required for the grant of a patent. A
standard patent may or may not result in the grant of a patent depending
upon the outcome of an examination by the patent office it is filed in. In
the U.S., a standard patent application is referred to as a "non-
provisional" application.

2. Provisional application : Provisional patent applications can be filed at

many patent offices, such as the USPTO in the U.S. A provisional
application provides an opportunity to place an application on file to
obtain a filing date (thereby securing a priority date), but without the
expense and complexity of a standard patent application. The disclosure
in a provisional application may, within a limited time (one year in the
U.S.), be incorporated into a standard patent application if a patent is to
be pursued. Otherwise, the provisional application expires. No
enforceable rights can be obtained solely through the filing of a
provisional application.
3. Continuation application : In certain offices a patent application
can be filed as a continuation of a previous application. Such an
application is a convenient method of including material from a
previous application in a new application when the priority year
has expired and further refinement is needed. Various types of
continuation application are possible, such as continuation and
continuation-in-part
4 .Divisional application : A divisional application is one which has
been "divided" from an existing application. A divisional
application can only contain subject matter in the application from
which it is divided (its parent), but retains the filing and priority
date of that parent. A divisional application is useful if a unity of
invention objection is issued, in which case the second (and third,
fourth, etc.) inventions can be protected in divisional applications
Rights of an applicant
The applicant or the owner of the invention has the following rights: -
1. to be granted the patent, where the relevant requirements are fulfilled;
[Link] the grant of the patent and within the limits defined below to preclude any
person from exploiting the patented invention in the manner referred to in section
53; and
3. to conclude license contracts as provided for in the Act.
Obligations
The applicant or the owner of the invention has the following obligations -
[Link] disclose the invention in a clear and complete manner, and in particular to
indicate at least one mode for carrying out the invention, in accordance with the
requirements, and subject to the sanctions, applicable under the Act;
2. to give information concerning corresponding foreign applications and grants;
[Link] pay fees to the Managing Director, as prescribed in the Act and the
regulations, subject to the sanctions provided for therein; and
[Link] connection with license contracts and contracts assigning patents or patent
applications, to refrain from making undesirable provisions referred to in section
69.
Rights of owner of a patent
The owner of the patent has the right to preclude any person
from exploiting the protected invention by any of the
following acts -
1. when the patent has been granted in respect of a product -
[Link], importing, offering for sale, selling and using the
product; or
[Link] such product for the purposes of offering it for
sale, selling or using the product;
2. when the patent has been granted in respect of a process -
1. using the process, or doing any of the acts referred to in
paragraph (1), in respect of a product obtained directly by
means of the process.
⦁ Patent infringement means the violation of the exclusive rights of
the patent holder. As discussed earlier, patent rights are the
exclusive rights granted by the Government to an inventor over his
invention for a limited period of time. In other words, if any
person exercises the exclusive rights of the patent holder without
the patent owner's authorization then that person is liable for
patent infringement. Sections 104-114 of the Patents Act, 1970
provide guidelines relating to patent infringement.

⦁ Unlike the Design law, the Patents law does not specify as to what
would constitute infringement of a patented product or process.
However, the following acts when committed without the consent
of the patentee shall amount to infringement:
▪ making, using, offering for sale, selling, importing the patented product;
▪ using the patented process, or using, offering for sale, selling or importing
the product directly obtained by that process
⦁ Direct patent infringement is the most obvious and the most common
form of patent infringement. Basically, direct patent infringement
occurs when a product that is substantially close to a patented product
or invention is marketed, sold, or used commercially without
permission from the owner of the patented product or invention.
⦁ Indirect patent infringement suggests that there was some amount of
deceit or accidental patent infringement in the incident. For instance, A
holds a patent for a device and B manufactures a device which is
substantially similar to the A’s device. B is supplied with a product
from another person C to facilitate manufacturing of the B’s device. If
the device so manufactured by B infringes upon A’s patent, then the
person C indirectly infringes A’s patent. Further, if such a product is
knowingly sold or supplied, it may lead to“ contributory infringement”.
In the above example, if the person C knowingly supplies the product
to B then the infringement is construed as contributory infringement.
⦁ to produce copies or reproductions of the work and to sell
those copies (including, typically, electronic copies)
⦁ to import or export the work
⦁ to create derivative works (works that adapt the original work)
⦁ to perform or display the work publicly
⦁ to sell or assign these rights to others
⦁ to transmit or display by radio or video
Right of paternity: to claim authorship of work and to prevent
all others from claiming authorship of his work.
Right of integrity: to prevent distortion, mutilation or other
alterations of his work, or any other action in relation to said
work, which would be prejudicial to his honor or reputation.
Owners develop new work and get copyright protection to ensure
that they can get profit from their efforts. Owner has sole authority
either to sell his work or to license it to the third party who can
make use of his work but if someone duplicates or reproduces the
work of copyright holder without the latter's permission, then this
can lead to copyright infringement, in which owner can take legal
action against the infringer.

Exception to Infringement under Sec.52 of The Copyright Act,

1957
⦁ Private or personal use, including research
⦁ Criticism or review, whether of that work or any other work
⦁ The reporting of current events and current affairs, including the
reporting of a lecture delivered in public.
⦁ Civil remedy: According to Section 55 of The Copyright Act,
1957, where copyright in any work has been infringed upon,
the owner of the copyright shall be entitled to all such
remedies by way of injunction, damages, & accounts.
⦁ Criminal remedy: According to Section 63 of The Copyright
Act, 1957, the copyright holder can take criminal proceedings
against the infringer, in which there is a provision of at least
six-month imprisonment, which may be extended to 3 years
and with a fine of Rs. 50,000, which may extend to 2 lakhs.