CONSTITUTION OF INDIA

Characteristics of a Federal Constitution

(1) Dual Government – There will be 2 independent Governments. One at each of the States and the Other at the Centre. Both deriving powers from a common source called Constitution. Both are independent in their own areas.

(2) Division of Powers – The Legislative and Executive Powers are divided between the Union and the States. The distribution of such Powers is reflected in the Constitution. The maters of National importance which required a Uniform Policy in the interest of the Unit, the Authority is given to the Union. The matters of local concerns remain with the States.

(3) Written Constitution – The foundation of a Federal State is a Contract between the Union and the States. It is NOT possible to maintain Supremacy of Constitution unless the terms of such contract are reduced in writing. Therefore, Written Constitution is a must part of Federation Constitution.

(4) Supreme Judiciary – There should be an Authority to interpret the provision of the Constitution and also arbitrate the disputes between the Union and the States. Such Authority should be independent and impartial. This role has been given to Supreme Court which is the highest Authority to interpret and enforce Constitution and also to arbitrate the disputes between the Units and the Federation.

(5) Supremacy of Constitution – A Federal State derives its existence from the Constitution. Therefore, every power whether it is Executive or Legislative or Judicial – whether it belong to the Union or the States, should be respected and that is why Constitution is treated as Supreme Law of Land in a Federation.

(6) Dual Citizenship – A Federal Constitution always envisages Dual Citizenship. One for the State and the other for the Union. India is an exception. Except Jammu & Kashmir, NO other State enjoys Dual Citizenship.

Contd….2…

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(7) Rigidity of Constitution – A Written Constitution should be normally rigid and without the concurrence of the Units, the Constitution should NOT be meddled with. The Power to amend the Constitution is equally given to the States and the Union.

(8) Single Judiciary – Since the Judiciary has the responsibility to interpret and enforce Constitution on all the Organs of the State, the judicial Powers have NOT been divided between the Union and the States in a Federal Constitution. In other words, judiciary is common for both Union and States.

Salient Features of Indian Constitution

(1) Lengthiest and most detailed Constitution originally comprising of 395 Articles, 8 Schedules and 20 Parts (now it has 444 Articles, 12 Schedules). US has only 7, Australia has 128 and Canada has 147 Articles. The bulkiness of the Constitution is due to the inclusion of even administrative provisions like, Official Language, Public Services, Administered Areas, Union Territories, etc. This is primarily to prevent abuse of authority by any Organ of the State. Nothing has been left to the initiative of Administrators. In the words of Dr. Bhimrao Ambedkar “This is because Democracy in India is only a top-dressing in Indian soil which is essentially undemocratic. It is, therefore, wiser NOT to trust the Legislators to prescribe the form of administration”.

(2) Indian Constitution is described as “Basket of Borrowings” with most provisions having been taken from Government of India Act, 1935. British Constitution contributed Cabinet form of Government, Civil Services, Office of Speaker, CAG, Parliamentary form, Rule of Law. US Constitution gave Fundamental Rights, Judicial Review, Independent Judiciary, Preamble, Role of Vice-President as Chairman of Rajya Sabha. Canada contributed Federation with Strong Centre, Residuary Powers to the Union. Irish contributed manner of Election of President, Nomination of Member in Legislative. Germany gave Emergency Powers and Suspension of Fundamental Rights during Emergency. Fundamental Duties given by Japan. Procedure of Amendment of Constitution taken from South Africa.

(3) Our Constitution proposes to establish a Sovereign, Socialistic, Secular and Democratic Republic.

Contd…..3…

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(4) Parliamentary form of Government with Union Council of Ministers headed by Prime Minister forming part of Legislature. President is only a figure head.

(5) Our Constitution is partly rigid and partly flexible. The basic structures of the Constitution can NOT be amended while some features of Federal Structures can be amended through special majority of both the Houses of Parliament and ratification by Half of the States. It is flexible because in 60 years, it has been amended more than 100 times.

(6) It provides Fundamental Rights duly protected by Article-13 & Article-32.

(7) It has Directive Principles of State Policy aiming to establish a Welfare State with Socio and Economic Justice.

(8) Our Constitution is Federal in structure and Unitary in Spirit. It is Federal because of Written Constitution, Division of Powers, Dual Government, Supremacy of Judiciary, Independent Judiciary and Primacy of Constitution. It is Unitary in spirit because of unequal representation in Rajya Sabha, Appointment of Governors, who function as Agents of Central Government. Emergency provisions “Destructible States in indestructible Union”.

(9) Universal Adult Suffrage (Franchise) powers to all men and women of 18 years and above irrespective of Religion, Race, Caste, Sex and Property.

(10) We have a unified Supreme Judiciary with Supreme Court at the top as Interpreter of the Constitution and Guarantor of Fundamental Rights and Minority Rights vested with the Powers of Judicial Review.

(11) Though it is a Federation, it provides for only a Single Citizenship.

Unique Features which NO other Constitution in the World has

(1) Preventive detention even during normal times (Article-22).

(2) Ordinance making Powers of President – President usurping (encroaching) the Powers of Legislature (Article-123).

Contd…..4…

-: 4 :-

(3) Special Leave Petition (Article-136).

(4) Advisory Jurisdiction of Supreme Court (Article-143).

(5) Fundamental Duties (Article-151-A). Though Fundamental Duties - Right to Work is a Fundamental Right in Japan whereas it is only a Directive Principle in India.

(6) Anti-Defection Law (Schedule-X) – Legislators dis-trusting themselves.

Preamble of the Constitution

Preamble has been described as “Political Horoscope”, “Key to the Minds of Framers of Constitution”, “Soul of Constitution” and it walks before Constitution.

Preamble indicates what he had thought and dreamt before Freedom Struggle and during Freedom Struggle. Preamble indicates 3 Principles :-

(1) It indicates the People of India is the ultimate authority and source of Constitution (We, the People of India do hereby adopt, enact and give unto ourselves this Constitution).

(2) What Rights and Fundamental Duties which People want to secure to all Citizens.

(3) The type of Government and Polity which was to be established.

(4) “We, the People of India” indicates that our Constitution is NOT the gift of British as Canadian Constitution in 1867 or Australian Constitution in 1900 nor our Constitution was imposed onus like that of Japanese Constitution of 1946. In other words, the Constitution of India was made “for the People of the People and by the People”.

The Preamble does NOT have any Article number as such it is a part of the Constitution. Supreme Court, in Perubari Case declared that Preamble is NOT the part of Constitution it can NOT be regarded as a source of substantive Powers because such Powers have been in the body of the Construction. The purpose of Constitution is that it should be resorted to when there is any ambiguity in the Law. This decision was in 1960.

Contd……5…

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In 1973, in Kesavananda Bharati case (Fundamental Rights case), the Supreme Court overruled its earlier decision and held that Preamble is part of Constitution and the Constitution should be read and interpreted only with reference to the Preamble.

Can Preamble be amended especially when it has no Article No.?

This has been examined in the Fundamental Rights case in 1973. The argument was that the Preamble limits the scope of Article-368 and as such it isi beyond Amendment. However, Supreme Court declared that :

(1) Preamble is part of the Constitution.

(2) It can be amended subject to the condition that it does NOT affect the basic structure of the Constitution.

Whether Preamble was ever amended?

Through 42nd Amendment Act, 1976, three Terms were included in the Preamble :

(1) Secular (2) Socialistic (3) Integrity

These Terms are NOY new because they had already been included in spirit in various provisions of the Constitution.

Secular – means that the State does not recognize any religion as State Religion. It treats all religions equally. In other words, the State is neither Pro-Religious nor Anti-Religious nor Irreligious. This concept had already been included in Articles 25,26,27 & 28.

Socialistic – does NOT mean abolition of private property nor does it mean ownership by the State. It only means to minimize the inequality between the haves and have nots. This directive had already been included in Article 39-B & C.

Integrity – Article-1 says that India i.e. Bharat is a Union of States. Though it is a Federation, the term Federation had NOT been included anywhere in the Constitution. It implies that the States have NO rights to secede (break away).

Contd…..6…

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Union and its Territory

Article-1 says that India i.e Bharat is Union of States. The term Federation is NOT found anywhere in the Constitution. The term Union was specifically suggested by Dr. Ambedkar which implies 2 things :-

(1) Indian Union is NOT the result of any Agreement of Independent & Sovereign State.

(2) The States do NOT have the right to secede (break away).

Americans had to wage a Civil War to establish that the Sates have NO right to break and that their Federation is indestructible. It is always better to make it clear this position at the outset rather than leaving this to speculation and posterity.

The States and Territories thereof are specified in the 1st Schedule. Territory of India consists of :-

(1) Territories of the States – which share the Powers with the Union.

(2) Union Territories – which are administered directly by the Union.

(3) Such other Territories as may be acquired.

At present, we have

States 28 --

Union Territories 07 (1) Delhi (2) Andaman & Nicobar Islands (3) Lakshadweep (4) Dadra & Nagar Haveli (5) Pondicherry (6) Daman & Diu (7) Chandigarh

Whether the Country can acquire any Territory

The Powers to acquire a new Territory is an attribute of sovereign functions and for this NO legislation is required. The territory can be acquired through Occupation, Subjugation, Conquest, Lease or Gift. These acquired territories will be subsequently converted into Union Territory and then added to the States.

Contd…..7…

-: 7 :-

Administration & Establishment of a New State

The Constitution gives the powers to the Parliament to admit a new State or to establish a new State on such terms and conditions as deems fit.

Administration of a State means admitting a State which already exists. Establishment of a State means formation and administration of a new State which has NOT in existence.

There is NO provision in the Constitution which gives right to the new State after admission to claim any equality with other State because the administration and formation is on such terms and conditions, as prescribed by the Parliament.

Article-3 gives the Procedure for forming or establishing a State. The State can be formed by :-

(1) Separation of a territory from any State.

(2) By Uniting two or more States.

(3) By Uniting any part of the State.

(4) By Uniting any territory to any part of any State.

Parliament has also the powers to increase or decrease the area and also to change the name of the State or Union Territory.

Parliament is competent to do the aforesaid changes without the consent of the affected State. This can be done by passing a Law by parliament by simple majority. Two conditions are to be satisfied :

(1) No Bill for formation of a new State or altering the boundaries or changing the name should be introduced in either House of Parliament, except on the recommendation of the President.

(2) If the bill affects the area or boundary or name of any State, President, before recommending, should refer to the Bill to the concerned State Legislature for its views within such stipulated period as specified by President.

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If the State Legislature does NOT express its views within the stipulated time or if the State has expressed opposing views even then, the Bill can be recommended, introduced and passed in Parliament. In other words, President or Parliament is NOT bound by the views of the State and the Bill can be passed. These amendments “are NOT treated as amendments for the purpose of Article-368 eventhough it amends Schedule-1”.

Therefore, the very existence of a State, its name, its territory, its boundary, etc. totally depends on the sweet will of the Union. That is why, we say that India is an indestructible Union with destructible States.

Cession of Territory

Article-3 empowers the Parliament to decrease the area of any State. The decrease may happen in 2 ways :-

(1) Where a part of a territory of a State/Union Territory is taken out and added to another State.

(2) Where a part of a territory of any State/Union Territory is taken out and given to a Foreign Country.

Whether Part (2) above is possible?

This came up before Supreme Court in a reference made by President under Article-143. India and Pakistan entered into an Agreement in 1958 to resolve border dispute. The Agreement was for “Transfer of 50% of Perubari area (measuring an area of 9 Sq. Miles) to Pakistan in exchange of Kuchbehar area. When the Agreement was to be implemented, there was a strong agitation in West Bengal. At this stage, President referred the matter to Supreme Court with 2 questions :-

(1) Whether any legislative action is necessary to implement Perubari Agreement

(2) If so, whether a Law of Parliament under Article-3 is enough or an amend-ment under Article-368 is required.

Contd…..9…

-: 9 :-

Supreme Court held that the Article-3 deals with only the internal adjustments of the territories of the constituent States because the area diminished in one State continuous to be the area under the Union.

Article-3 does NOT, therefore, provide for ceding the territory to a Foreign State. Therefore, the Agreement can be implemented only after amending the Constitution through Article-368. Supreme Court also held that to cede territory is an attribute of Sovereign Power of the State.

Fundamental Rights (Article-35)

Article-12 defines State. The term includes State Executives, State Legislatures, Union Executives and Union Legislature including those of local or any other Authorities functioning under them. The term State includes Judiciary also.

Article-13 also called “Judicial Review” taken from US Constitution. The Powers of the Supreme Court and High Courts facilitates to pronounce upon the Constitutionality of Legislature and Executive acts to protect the Constitution. High Court exercises these Powers under Article-226 and the Supreme Court under Article-32.

Article-13 provides that the State shall NOT make any Law which takes away or abridges any of the rights conferred in Part-3 of the Constitution and if any Law is made abridging or taking away any of such rights, that Law is void to the extent of inconsistency.

Supreme Court held that Judicial Review is a basic structure which means that the Judicial Review can NOT be taken away even through amendment of the Constitution. Article-13 also defines Law which includes Ordinance, Rule, Order, By Law, Regulation, Notification, Custom or Usage.

24 th Amendment Act added the following :-

“Nothing in Article-13 shall apply to any amendment made through Article-368. This is to overcome the decision of Supreme Court in Golak Nath case in which Supreme Court declared that Parliament has NO Powers to amend any part of the Constitution”.

Contd…..10…-: 10 :-

Four Doctrines

(1) Prospective Over-ruling

This Doctrine was propounded by Supreme Court in the famous Golak Nath case. While Supreme Court has nullified the Powers of Parliament to amend the Constitution in that case in 1967, through Prospective Over-ruling, Supreme Court protected all past amendments declaring that the Parliament can NOT henceforth amend the Constitution whatever amendments have been carried out, though would remain valid.

(2) Doctrine of Severability

This doctrine means if an offending Provision can be separated from that which is constitutional, then only that Part which is offending is to be declared as void and NOT the entire Law. In other words, when a Part of the Law is declared unconstitutional by the Court, then a question arises whether the whole Law is invalid or only that Provision which is unconstitutional is invalid. Supreme Court decided only the offending Provision is invalid because Article-13 clearly says “to the extent of repugnancy”.

(3) Doctrine of Waiver

A Citizen can NOT waive his Fundamental Rights. It is NOT open to an accused to give up Constitutional Rights and get convicted. These rights have been put in the Constitution NOT only for the benefit of the individual but also in the interest but also in the interest of the Society. It is an obligation imposed on the State by the Constitution. No person can relieve the State of this obligation. In other words, it is the duty of the Court to protect the right of the Citizen against themselves.

(4) Doctrine of Eclipse

This Doctrine means that a Law which violates a Fundamental Right is NOT totally void but it becomes unenforceable i.e. it remains dormant. It is only over-shadowed by Fundamental Right and they remain for all past transactions.

Contd…..11…-: 11 :-

Fundamental Rights

Legal Right

A Legal Right is an interest protected by an ordinary Law and enforced in the Court of Law. While an ordinary Legal Right is protected and enforced by an ordinary Law. A Constitutional Right is a right guaranteed in the Constitution and which can NOT be taken away without amending the Constitution.

Fundamental Right is a right included in the Constitution in Part-3 duly protected by Article-13 and Article-32 of the Constitution. In other words, a right available in Constitution but NOT included in Parat-3 is called Constitutional Right.

Therefore, all Constitutional Rights are Legal Rights but all the Legal Rights are NOT Constitutional Rights. Similarly, all Fundamental Rights are Constitutional Rights but all the Constitutional Rights are NOT Fundamental Rights.

Salient features of Fundamental Rights

1) Fundamental Rights are kept at a high pedestal.

2) These rights are protected from abridgement (curtailment) by Article-13.

3) Adequate machinery has been provided to protect Fundamental Rights through Supreme Court and High Court (Article 32 & 226).

4) Article-32 itself is a Fundamental Right. Therefore, it can NOT be denied to any citizen.

5) Fundamental Rights are not absolute but subject to certain restrictions. Some have been prescribed in the Constitution and some can be prescribed by Legislators.

6) Fundamental Rights can be suspended during Emergency under Article-352 & Article-359. Article-19 stands automatically suspended. And in respect of others, except Article-20 & 21, President is to notify the suspension.

7) For the first time in the constitutional history, 44th Amendment Act, 1978 deleted a Fundamental Right (viz.) Right to Property – Article-31.

Contd…..12…

-: 12 :-

Above all, Fundamental Rights are not free for exception. Under Article-31A, added through First Amendment Act, 1951, if any law is made to implement agrarian reforms, that law can NOT be questioned even if it violates Article-14, 19 & 31. Similarly under Article-31-B, added through First Amendment Act, 1951, if any law is made for implementing land reforms and included in Schedule 9, that law gets judicial immunity from Article-14, 19 & 31. Similarly, if any Law is made to implement any Socialistic Principle given in Article-39B & 39C, that law cannot be questioned, even if it violates Article-14, 19 & 31. This was added through 25 th

Amendment Act, 1971.

In addition, Fundamental Duties is another exception to Fundamental Rights. If there is a clash between Fundamental Duty and Fundamental Right, the former will prevail over the latter.

There are 7 Fundamental Rights

1) Right to Equality : Article-14 to 18;

2) Right to Freedom : Article-19 to 22;

3) Right against exploitation : Article-23 & 24;

4) Right to Freedom of Religion : Article-25 to 28;

5) Cultural and Educational Rights : Article-29 & 30;

6) Right to Property : Article -31 (since deleted)

7) Right to Constitutional Remedies : Article-32 to 35.

Availability of Fundamental RightsSome Fundamental Rights are available only to the Citizens and some others

are to both the Citizens & Non-Citizens.

What are the special privileges and rights available only to the citizens ?

1) Article-15 Prohibition of discrimination on the grounds of Religion, Race, Caste, Sex or Place of Birth. (RRCSP)

2) Article-16 The right of Equality of opportunity in the matters of Public Appointment and Public Employment under the State.

Contd….13…

-: 13 :-

3) Article-19 - Seven Freedoms

Freedom of speech and expression, Freedom of Assembly, Freedom to form Union or Association, Freedom to move throughout the Territory of India, Freedom to reside and settle in any part of India, Freedom to acquire, hold and dispose of property (deleted through 44th Amendment Act 1978) and Freedom to practice any Profession, Trade , Business or Occupation.

4) Article-29 & 30 - Cultural and educational rights.In addition, there are certain offices under the Constitution, which can be occupied only by the citizens (viz.) President, Vice President, Governor etc.

In addition, right to vote for elections to Lok Sabha and Assembly, is available only to the citizens and they can alone become the Members of Union and state Legislatures.

Article-14 to 18 consists Right to Equality. Article-14 prohibits discrimination in a general way. Article-15 prohibits discrimination against any Citizen on the grounds of Religion, Race, Caste, Sex or Place of birth. Article-16 generates Public Appointment and Public Employment under the State. Article-17 abolishes Untouchability. Article-18 abolishes Titles.

Article-14 says that the State shall NOT deny to any person equality before Law or equal protection of Law. Available to citizens and Non-Citizens, negative in character, injunction (ban) against the State. This right has 2 components:

1) Equality before Law;

2) Equal protection of Law.

Equality before Law is of English origin and equal protection of Law is of American.

Equal before Law :

This means absence of discrimination. Right from the Prime Minister to Peon, all are equal in the eyes of law, based on rule of law. And the rule of law is a man can be punished only for a breach of law and not for anything else and equality before law is no one is above law. Constitution is supreme law of land. In short, King is not the law and the law is the King. However you are tall, law is taller than you. Rule of law is better than rule of man.

Now the question is whether there are any exceptions to this principle of equality before law?

Contd…..14…

-: 14 :-

There are certain exceptions, which have been given in the Constitution itself.

1) President or Governor is not answerable in any Court of Law for any act done or purported to have done, in exercise of their Powers (Article 361).

2) No civil proceedings can be instituted against President or Governor during the term of office until 60 days of notice in writing is given.

3) No criminal proceedings can be initiated or continued against President or Governor during the term of office.

4) No process of arrest of President or Governor can be issued, from any court of law during the term of their office.

5) Under International Law, Foreign Sovereigns, Ambassadors and Diplomats enjoy full immunity from judicial process.

The above immunity does not apply to impeachment proceedings against President or suits against Government of India.

In addition to the above, Article 31A, 31B, 31C and Fundamental Duties are exceptions to Article 14, as explained in salient features of Fundamental Rights.

Equal protection of law

This means right of equal treatment in similar circumstances both with regard to privileges and liabilities of law. If there is any reasonable basis for classification, the legislature can make reasonable classification. In other words, it is only guarantee of equal treatment under equal circumstances, permitting differential treatment when the circumstances differ.

Equal protection of law does not mean that every law must be general nor does it mean that the same law should apply for all. It does not also mean that every law should have universal application because all persons are not by very nature in the same position. The different needs of different classes of people require different treatments. In fact, identical treatments in unequal circumstances will amount to inequality. Therefore, a reasonable classification is NOT only permissible (Permissible Classification) (V.Imp.) but also essential. Nevertheless, the classification should not be arbitrary.

[Recall Section-303 of IPC, Airhostess case, Pension case and adultery case]

Contd……15…

-: 15 :-

Supreme Court recently held that the government can NOT discriminate among women on account of marriage. Supreme Court allowed an appeal of Mrs. Savitha and her Father challenging the Railway Board circular which provided that the married daughter of the retiring official was eligible for government accommodation, only if the retiring father has no son. Supreme Court held this circular “Gender biased” and commented that “a son is a son till he marries and gets his wife; and a daughter is a daughter for life”.

Article 15 : Protective discrimination

1) The State shall not discriminate against any citizen on the ground of Religion, Race, Caste, Sex or Place of birth.

2) No citizen shall be, on ground of Religion, Race, Caste, Sex or Place of birth, be subjected to any disability or restrictions or conditions with regard to shops, restaurants, hotels, motels, use of wells, bathing guards, tanks, roads, public resorts etc., which are maintained wholly or partly out of State funds or dedicated to general public.

The above 2 provisions have following exceptions :

a) The State can make special provision for protection of women and children.

b) Similarly, the State can make special provisions for advancement of socially and educationally backward classes of citizens or SC & ST (added through First Amendment Act, 1951 – as result of Supreme Court decision in Chenpakam Durairajan case).

The above exceptional classes of people (viz.) women, children, socially & educationally backward classes, SCs & STs require special protection and affirmative action of the State.

Even though the principle of equality demands prohibition of discrimination, the discrimination is protected in the above cases, in social interest. This is, therefore, called Protective Discrimination.

The women are protected because their physical structure and maternal functions place them at a disadvantage in their struggle for their subsistence in the gender biased society and their physical well-being becomes the duty of the society.

Contd…..16…

-: 16 :-

93 rd Amendment Act, 2005 amended Article-15 and added the following

“The State can make special provisions for the advancement of society and educationally backward classes of citizens, SCs & STs relating to their admission to educational institutions aided or unaided by the State, other than minority institutions referred to in Article-30.”

Article – 16 has two provisions

1. There shall be an equality of opportunity for all Citizens in the matter of public employment and public appointment to any office under the State.

2. No citizen shall on the ground only of Religion, Race, Caste, Descent (inheritance), Place of Birth, or Resident, be ineligible or discriminated against in respect of any employment or office under the State.

The above provisions have following exceptions

(i) This is an exception to the provision which forbids discrimination on the grounds of Religion, Race, Caste, Descent, Place of Birth or Resident. This empowers only the Parliament to regulate by Law, the extent to which it is permissible for the State, to depart from the above provision. Accordingly, Parliament has passed Public Employment (requirement as to residents) Act 1957. This Act exempts Himachal Pradesh, Manipur, Tripura & Andhra Pradesh.

(ii) The 2nd exception is that the State can make the special provision for appointment of post in favour of any backward class citizens which are not adequately represented in services under the State.

(iii) The 3rd exception is that the State can make special provision for reservation in matters of promotion to any class of post in services of the States in favour of SC & ST (not for OBC), which have not been adequately represented in services under the States. This was added through 77th Amendment Act, 1995, to overcome the Supreme Court decision in Indira Sawhney case.

Contd…..17…

-: 17 :-

(iv) The 4th exception is: 81 Amendment Act 2000 added Article 16 (4B), to end 50% ceiling on reservation for SC & ST and OBC in the backlog vacancies, which could not be filled up in previous years due to non availability of eligible candidates; it has been provided that these vacancies should be considered as a separate class and should be filled in succeeding years and such vacancies should not be considered together with the vacancy of the year in which they are being filled up for the purpose of ceiling of 50% reservation of the year.

(v) 85th Amendment Act 2001 extended the benefit of reservation in favour of SCs and STs (not for OBCs) in matters of promotion with consequential seniority from April, 1995.

(vi) The 6th exception is that the equality provision will not prevent the relaxation of qualifying marks in any examination and also lowering the standards of evaluation for reservation in matters of promotion for SCs& STs. (Article-335 amended through 82nd Amendment Act, 2000).

In addition to the above, the officers connected to a religious institution may be reserved for member professing that particular religion or belonging to that particular denomination.

Article-17 : Abolition of Untouchability

Article-17 abolishes untouchability and forbids its practice in any form. If it is practiced, it is an offence and punishable under Law.

Untouchability has not been defined but the Supreme Court held the term should be understood as a practice which had developed in the country historically i.e. a practice which contemptuously looks down a group of persons purely based on their birth. The purpose of the Article is to liberate the Indian Society from the blind, ritualistic, strict traditional belief.

Article-18 : Abolition of Titles

(i) Article-18(1) prohibits the States to confer Titles to any person, military and academic distinctions are exempted;

Contd……18…-: 18 :-

(ii) It prohibits Indian Citizens from accepting any Title from any Foreign State;

(iii) This Article prohibits any foreigner holding office of profit under the State from accepting any Titles from any foreign State without President’s consent;

(iv) It also prohibits a person, both citizen and non citizen holding any office of profit under the State, from accepting any present or emoluments or office of any kind from any foreign State without Presidential consent.

Article-18 is only a Directory. There is NO penalty prescribed for violation of these provisions, though Parliament can always make a law.

Supreme Court recently held that conferment of Titles of Bharat Ratna, Padma Vibhushan, Padma Bhushan, Padma Sri etc. are NOT violation of Article-18. These awards indicate the State’s recognition of the good work done by the Citizens and does NOT violate the principles of equality.

Article-19 : Right to Freedom

Right to Freedom consists of Article-19, 20, 21 and 22, put together called “Magna Carta of Civil Liberties”.

Article-19 gives 7 freedoms; Article-20 provides protection in respect of conviction for offences; Article-21 deals with protection of life and personal liberty; Article-22 is protection against arrest and detention.

Article-19 gives 7 Freedoms

(i) Freedom of Speech and Expression;

(ii) Freedom of Assembly;

(iii) Freedom to form Union & Association;

(iv) Freedom to move throughout the Territory of India

(v) Freedom to reside and settle in any Part of India,

(vi) Freedom to acquire hold and dispose of property (deleted through 44th Amendment Act, 1978)

(vii) Freedom to practice any profession, trade or business or occupation.

Contd……19…

-: 19 :-

Each of these freedoms can be restricted and the grounds of restriction are given in the Constitution itself. That is why we say that what Article-19 gives by one hand is taken by the other hand.

Man is a National being. He desires to do many things. But in a civilized society, the desires have to be controlled, reconciled and to be regulated in their exercise by similar desires of other fellow citizens. There cannot be any right, which is absolute and injurious to the society.

The restrictions so imposed cannot be arbitrary.

Article-19 is available only to the citizens.

(1) Freedom of Speech and Expression:

This includes Press Freedom also. There is no separate article for press freedom. This includes not only the rights to propagate your views but also otherwise. This helps self attainment, discovery of truth, capacity in decision making and to strike a balance between social change & stability.

The Freedom of Speech and Expression includes, freedom to silence also (in respect of expulsion of three children from the school in the National anthem case; and LIC house journal case).

Prasar Bharati was established on the directions of the Supreme Court, as a result of interpretation of this Article, so also Right to Information Act 2005, Right to know about the candidates contesting the elections.

The freedom of speech and expression can be restricted in the interest of Sovereignty, Integrity, Public Order, Morality, Contempt of court, Decency, Defamation, Friendly relations with Foreign States, incitement to offence or security.

Freedom of Press: The Indian Constitution does not provide for the freedom of Press separately. It is implicit in Article 19. The restrictions that limit the freedoms in the case of individuals apply to the press also.

(2) Freedom of Assembly Freedom of Assembly can be restricted in the interest of Sovereignty, Integrity, Public Order (SIPO).

(3) Freedom to form Union and Association can be restricted in the interest of Sovereignty, Integrity, Public Order and Morality (SIPOM).

Contd…..20…

-: 20 :-

(4) Freedom to move throughout the territory of India can be restricted in the interest of “general public” and Scheduled Tribe. The General Public includes public order, morality, decency and health.

(5) Freedom to reside and settle in any part of India can be restricted in the interest of general public and Scheduled Tribe.

(6) Freedom to acquire hold and disposal of property has been deleted through 44th Amendment Act 1978. It has been placed as Article 300A, as Constitutional Right.

(7) Freedom to practice any profession, trade, business or occupation

This can be restricted in the interest of the following(i) General Public;

(ii) For the sake of professional / technical qualifications;

(iii) To enable the State to carry on any trade or business exclusively, to the exclusion of other citizens.

Article-20 : Protection against ex-post facto Law, Double Jeopardy, self-incrimination has 3 provisions namely :-

1) Protection against ex-post facto Law

No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence. Similarly, he shall not be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. In other words, if an act is not an offence at the time when it was committed, it cannot be made as an offence at a later date subsequent to the commission of offence (i.e.) ex-post facto law is a law which imposes a penalty retrospectively.

This Act imposes a limitation on the law making powers of the Legislature.

Normally a Legislature can make retrospective and prospective law but this clause prohibits retrospective criminal law.

Contd……21…

-: 21 :-

This does not however apply to civil liability or change of procedure (i.e.) a Law can be imposed retrospectively. Supreme Court, however, clarified an ex-post facto provision can be extended, if it is beneficial.

2) Protection against Double Jeopardy (danger)

a) No person can be prosecuted and punished for the same offence more than once.

b) In this case, the person must be accused of an offence; the prosecution should have taken place before a Court.

c) The person should have been punished in the said proceedings.

d) The offence must be the same, for which he was prosecuted and punished earlier.

In British and American Constitutions, the protection is available against second prosecution also. The first prosecution should have taken place before a Court. In other words, the proceedings before Customs Authority or Departmental Authorities or Administrative Authorities cannot be considered as judicial proceedings.

3) Protection against Self-incrimination

No person accused of any offence shall be compelled to be a witness against himself. This is based on the principle of natural justice that every person is innocent until and unless the otherwise is proved. Therefore, it is for the prosecution to establish the guilt of the accused and the accused person need not make any statement against his will under the spell of compulsion, which may expose him for prosecution for a crime. The ingredients are :

a) The person should be accused of any offence;

b) Protection is against any compulsion to be a witness and against himself.

This does not apply to compulsory production of material objects or specimen handwriting or finger impression or blood specimens. Article-20 cannot be suspended even during Emergency.

Contd……22…

-: 22 :-

Article-21 : Provides protection of Life and Personal Liberty

No person shall be deprived of his life or personal liberty except by a procedure established by Law.

The Act does not refer to due process of law, as in US Constitution. It only says “the procedure established by law thereby placing the Legislature in a more important position”.

The procedural due process involves:

1) providing notice;

2) opportunity to be heard;

3) impartial tribunal and

4) orderly procedure.

These are not required in the procedure established by law.

In A.K. Gopalan Vs Union of India, Supreme Court held that our Constitution embodies English concept of personal liberty and not due process. Therefore, if a competent legislature has made a law providing that a person may be deprived of his personal liberty in certain circumstances, in certain manner, the validity of that law cannot be questioned.

However, Supreme Court in Menaka Gandhi case in July 1977, overruled its earlier decisions and declared that the personal liberty covers a variety of right, which are included in Article-19.

Through various decisions, Supreme Court amplified (widened) the term personal liberty and included the following rights:

1) Right to live with human dignity and all that goes along with it viz.) adequate nutrition, clothing, shelter, reading, writing, free moving, mingling with fellow human beings;

2) Right to livelihood because the easiest way to deprive a person of his life, is to deprive him his means of livelihood (Bombay Civil Service case);

3) Right to minimum wages (Asiad workers case);

4) Right to subsistence Allowance;

Contd…….23…-: 23 :-

5) Right to privacy (even a woman of easy virtue has right to privacy – domiciliary visits banned);

6) Right against inhuman treatments;

7) Right to Education (Supreme Court in Mohini Jain case held that Capitation Fee deprives the children of their education. Based on this, today right to education is a Fundamental Right);

8) Supreme Court also held, it is the professional obligation of all doctors, to extend the medical help to the injured immediately, without waiting for legal formalities;

9) Right against solitary confinement (Shobhraj case);

10) Right to speedy trial;

11) Right against the use of third degree methods;

12) Imprisonment of a poor person for non-payment of debts (to be poor is no crime);

13) Right against hand cuffing;

14) Right against illegal arrest;

15) Right against custodial violence;

16) Right to bear child;

17) Over loading of school bus violates Article 21;

18) Donation of organ by husband to his ailing father is not violation of Article 21;

19) Right to electricity;

20) Compensation for Medical negligence (like, child birth after sterilization);

Contd……24…-: 24 :-

21) Before sending a pregnant woman to jail, the government should ensure pre-natal and postnatal care for mother and child. The birth place of the child should be shown as Registration Office and not Jail.

22) Interim compensation for rape victim (Miss Subhra Chakraborty case in 1995).

In a case of Rudal Shah, though he was acquitted by the Sessions Court on 30th June, 1968, he was released from the Jail only on 16th October, 1982. Supreme Court fined the Bihar Government Rs.50000/-.

Virginity Test violates Article-21. Holding of beauty contest is against Article-21. Telephone tapping is violation of Right to privacy.

Death sentence and killing a person by rope, is not violation of Article-21.

Right to life does not include right to commit suicide.

Right to bail is a right included in Article 21 (Bail is the rule and Jail is exception).

Prevention of sexual harassment at work places (Visakha Vs State of Rajasthan) is included in Article-21.

Article-21 cannot be suspended even during emergency.

Article-21(A) : Right to Education

The State shall provide free and compulsory education to all children of the age of 6 – 14 years in such manner as the State may, by law, determine.

The right to education comes from Right to life.

Supreme Court in Unnikrishnan case declared Right to Education is a Fundamental Right.

This article was added through 86th Amendment Act, 2002.

It is a fundamental duty for parents and guardians to send their wards to school.

Article-22: Protection against arbitrary arrest

Article-22 deals with 2 separate matters.

1) Those arrested under ordinary law of crime;

2) Those arrested under the law of preventive detention.

Contd……25…

-: 25 :-

Article-22 guarantees 4 rights to persons arrested under ordinary law of crimes.

a) Right to be informed as soon as possible, of the ground of arrest;

b) Right to consult and be represented by a lawyer of his choice;

c) Right to be produced before a Magistrate within 24 hours of his arrest, excluding journey time from the place of arrest to the place of Magistrate;

d) Freedom from detention beyond the said period, except by an order of the Magistrate.

The above 4 are not available to 2 groups of people:

1) Enemy alien;

2) A person arrested and detained under preventive detention law.

Safeguard against preventive detention:

1) The government can detain a person in custody only for 3 months;

2) For detention beyond 3 months, a report should be obtained from Advisory Board, as to whether the detention is justified or not;

3) Advisory Board consists of persons who are or who have been or who are qualified to be appointed as Judges of High Court;

4) Maximum detention period will be prescribed by Parliamentary law;

5) A person can be detained also in accordance with provisions of any law made by Parliament;

6) The person so detained should be informed about the ground of detention as soon as may be, unless such disclosure is against the public interest;

7) A person detained must have earliest opportunity to represent against his detention.

Contd…….26…-: 26 :-

Parliament may by Law prescribe :

a) The procedure to be followed by the Advisory Board in an enquiry;

b) Maximum period of detention;

c) Circumstances and clauses of the case in which a person can be detained for more than 3 months without getting the opinion of Advisory Board.

44th Amendment Act, 1978 made the following changes :

1) The detention period before getting the opinion of Advisory Board reduced from 3 months to 2 months.

2) The composition of Advisory Board was changed as follows:

a) The Board to be constituted on the recommendation of Chief Justice of High Court;

b) Chairman should be serving Judge of High Court;

c) 2 members should be normally serving and in rare case retired High Court Judges.

It also abolished the provision of preventive detention without reference to Advisory Board.

Curiously, even after 32 years, the amendments made through 44th

Amendment Act 1978, have not been notified by the Government.

Article-23 : Right against exploitation

Traffic in human beings and beggars and similar forms of forced labour are prohibited. Any contravention is punishable under law. However, State can impose compulsory service for public purpose provided that the State shall not discriminate on the grounds of Religion, Race, Caste and Place of Birth.

Traffic in human being means selling and buying of men and women like goods. It includes Bonded Labour and also Devadasi system.

Contd…….27…-: 27 :-

Article-24: Prohibition of employment of children

No child, below the age of 14 years, is employed to work in any factory or mine or in any employment of hazardous nature. This Article does NOT prohibit the employment of children in harmless work. It does not also prohibit employment of the children above 14 years.

Article-25 -28 : Right to freedom of Religion/Secular Rights/Religious Rights

Secularism has been declared as basic structure of the Constitution in S.R. Bommai case by the Supreme Court. If any political party preaches against secularism, it can be de-recognized and also if any State government functions against Secularism, Article-356 (i.e.) President’s Rule can be imposed.

Article-25 : Freedom of Conscience and free Profession, Practice and Propagation of Religion

Subject to Public Order, Morality and health and other provisions of Part III, all persons are equally entitled to freedom of conscience and right to freely profess, practice and propagate the religion.

Nothing prevents the State from making Law on the following :-

1. To regulate or restrict any economic, financial or political or other secular activities associated with the religious practices;

2. To provide social welfare or social reform or throwing open Hindu religious institutions of public character to all sections of Hindus.

Article-26: Freedom to manage Religious Affairs

Subject to public order, morality and health every religious denomination has the following 4 rights:-

(i) To establish & maintain Institutions for religious and charitable purpose;

(ii) To manage its own affairs in the matter of religion;

(iii) To acquire and own Movable and Immovable properties;

(iv) To administer such property as per law. (They cannot dispose of the property).

Contd……28…

-: 28 :-

Article-27 : Freedom from payment of taxes

It states that no person shall be compelled to pay any tax, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. If any State aid is extended to all religious institutions including the secular ones, without any discrimination, then Article 27 does not apply.

Article-28 : Prohibits imparting of religious instructions or religious worship in educational institutions.

There are four categories of Educational Institutions :-(i) Established and wholly maintained out of State funds;

(ii) Administered by the State but established by the endowments or trusts;

(iii) Recognized by the State;

(iv) Aided by the State.

In the case of item 1, no religious instruction can be imparted.

In the case of item 2, religious worship or instructions is permitted.

In the case of item 3 and 4, religious worship or instruction can be imparted only with the consent of the individual and if they are minors, the consent of the guardian should be obtained.

Article-29 & 30 : Cultural and Educational Rights or Minority Rights

The first proviso to Article 29 guarantees to every section of citizens, to conserve their distinct Language, Script or Culture (LSC).

Clause 2 of the Article provides that no citizen can be denied admission to any educational institution maintained by the States or receiving aid out of State funds on the grounds of Religion, Race, Caste or Language (RRCL).

Even though Article 29 relates to minorities, its purview is not confined to them alone, because this is available to any section of citizens i.e.) available to majority also. For example - in Maharashtra, Punjabis or Biharis are minorities. In other words, the deciding factor is the population of the minorities in that particular area.

Contd……29…

-: 29 :-

Article 30 : All minorities whether based on religion or language have the Right to establish and administer Educational Institutions of their choice.

In granting aid to educational institutions, the State shall not discriminate against any educational institution on the ground that it is under the management of a minority based on religion or language.

In making any law for compulsory acquisition of property of any educational institution of such minorities, the State should ensure that the amount fixed for acquisition is adequate under the law and should not restrict the right guaranteed under their clause.

Article 31: Right to Property (deleted)

Right to property has been deleted through 44th Amendment Act 1978 and placed as Article 300A as Constitutional Right.

1st Amendment Act, 1951 inserted in Article-31(A) and Article-31(B) and 25th

Amendment Act, 1971 incorporated Article-31(C).

Besides Article-31, there are 3 other Articles (viz.)

1) Article-31(A) - Abolition of Zamindari System otherwise called Agrarian Reforms.

2) Article-31(B) - Provides that none of the acts and regulation in the 9th

Schedule shall be land reforms. Initially 9th schedule had only 13 acts and today it has over 264 acts. e.g.) Tamil Nadu reservation act has been incorporated in 9th Schedule.

3) Article-31(C) - It empowers Parliament and State Legislatures to make Law to secure the Directive Principles (i.e.) protection of implementation of socialistic Principles given in Article-39(B) and 39(C). Such Laws cannot be questioned.

[These have been discussed under salient features of Fundamental Rights of Article- 14.]

Today the position is Article-39(B) & (C) can alone prevail over the Fundamental Rights of Article-14, 19 and 31.

Contd…….30…

-: 30 :-

Article 32 : Right to Constitutional remedies

This provides a guaranteed remedy for enforcing Fundamental Rights conferred in Part III of the Constitution. This remedial right itself is a Fundamental Right, by being included in Part III. Therefore, Supreme Court cannot refuse to entertain any application seeking protection against violation of F.Rs. Thus, Supreme Court is guarantor of FR and custodian of secular and minority rights.

That is the reason, why Dr. Ambedkar had declared in Parliament in his introductory speech as follows :-

“If I am asked to name any particular Article in this Constitution as the most important, without which the entire Constitution will become a nullity, I can not refer to any other Article except Article 32”.

Article-32 has 4 provisions :-

(1) Class-1 - guarantees of a right to move Supreme Court for enforcement of Fundamental Rights.

(2) Class-2 empowers the Supreme Court to issue appropriate directions/orders including, Prerogative Writs in the nature of ‘Habeas Corpus’, ‘Writ of Mandamus’, ‘Prohibition’, ‘Certiorari’ and ‘Quo-Warranto’ for enforcement of Fundamental Rights.

(3) Class-3 empowers the Parliament to make a Law empowering any other Court to exercise within the local limits of its jurisdiction all or any of the Power exercisable by Supreme Court under the above Class.

(4) Class-4 provides that this right to Constitutional remedy cannot be suspended except as otherwise provided in the Constitution.

What is except as otherwise provides?

When the National emergency under Article-352 has been declared, the President can suspend Article-32 in respect of all Fundamental Rights except Article-20 & 21.

Contd……31…-: 31 :-

This Power is derived from Article-359. Supreme Court & High Court under Article-32 & 226 can issue following Writs for enforcement of Fundamental Rights :

(1) Writ of Habeas Corpus means “produce the body”. The power to issue this Writ is vested with Supreme Court & High Court. This is the direction of the Court to an Authority who is detaining another, ordering him to bring the body of the person at a specified time to a specified place for a specified purpose. The purpose being to set at liberty the person who is confined without any lawful jurisdiction normally the Writ is issued only against the State but rarely against Private individual also (as in the case of a Cancer patient seeking direction of the Court to see his own daughter).

Habeas Corpus cannot be issued in the following cases :

(i) Where the person against whom the Writ is issued or the person who is detained is not within the jurisdiction of the Court;

(ii) To secure the release of a person imprisoned by the Court on a criminal charge or under Preventive Detention Law;

(iii) To interfere with the proceedings of Contempt of Court or Contempt of Parliament.

(2) Writ of Mandamus - means “be command or be order”. This is an Order of Supreme Court or High Court commanding a person or an Authority to do what is his duty or NOT to do what he is NOT lawfully entitled to do so. Here, it commands a person to whom it is addressed to do some public or quasi-public legal duty which he has refused to perform for which the Petitioner has a right. In other words, the Applicant should have a legal right to the performance of the legal duty of public nature. It lies not only against State but also against an Administrative Authority.

Writ of Mandamus cannot be issued :

(i) if the duty is discretionary nature.

(ii) to any private individual unless the State is in collusion.

(iii) Mandamus is not issued against the President or any Governor.

Contd……32…

-: 32 :-

(3) Prohibition – This is issued by the higher Court to prevent an inferior Court or Tribunal from exceeding its jurisdiction or acting contrary to the Rules or acting contrary to the Principles of Natural Justice. In other words, this Writ is issued by the Supreme Court or High Court to a Subordinate Court to prevent it from usurping (encroaching) the jurisdiction with which it is not legally vested.

The difference between ‘Mandamus’ and ‘Prohibition’ is that the former commands activity and the latter commands inactivity. Besides, the former is issued not only against Judicial Authorities but also can be issued against Administrative Authorities, whereas the latter is against only Judicial and Quasi-judicial authorities.

(4) Certiorari - This is an Order from Supreme Court or High Court for removal of a Suit from an inferior Court to the Superior Court. It is issued to bring up the decision or records of the inferior Court to the Superior Court with a view to getting an illegal Order quashed. This Writ is also against Judicial & Quasi-Judicial Authorities and NOT against any Administrative Authority.

Difference between Prohibition & Certiorari Prohibition is issued to prohibit the Subordinate Court from making an illegal Order, whereas Certiorari is issued to nullify an Order made unlawfully. In other words, Prohibition is issued during pendency of proceedings whereas Certiorari is issued at the end of proceedings to nullify an Order which is illegal.

(5) Quo Warranto – Under this Supreme Court or High Court may grant an injunction to restrain a person from acting in an Office to which he is not legally entitled and may declare the Office as vacant. The Application for the issue of this Writ is maintainable only in respect of an Office of Public nature created by Law or Constitution and not against any Private Institution. This Writ can be issued very rarely.

Article-33 – Restriction of Fundamental Rights

Fundamental Rights in application of Armed Forces - Parliament may, by Law, determine to what extent any of the Fundamental Rights be restricted or abrogated in their application to Armed Forces or Forces Charged with the maintenance of Public Order and tranquility to ensure proper discharge of their duties and maintenance of discipline among them.

Contd……33…

-: 33 :-

50th Amendment Act, 1984 amended this Article-33 and further extended the scope to 2 more Categories :

(1) Persons employed in any Bureau established by the State for intelligence;

(2) Persons employed in connection with any Telecommunication System set up for Armed Forces or Central Police Organization or Intelligence Bureau.

Article-34 – Indemnification (Protection) during Martial Law

Parliament may, by law, indemnify any person in the services if the Union/State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area where Martial Law is in operation or validate any sentence passed or punishment inflicted (imposed). There is a provision in the Constitution which speaks about declaration of Martial Law. Some experts compare Martial Law with National Emergency which does not appear to be correct because during National Emergency, the Council of Ministers exists and the President acts only on the advice of the Council of Ministers.

Article-35 – Powers of Parliament to make Law

This Power entrusted to Parliament especially for enforcing Fundamental Rights. Parliament has the Powers and State Legislatures do not have the Powers to make Law with reference to any of the matters in Class-3 of Article-16 (residential condition to employment), Class-3 of Article-32 (authorizing other Courts with similar Powers as that of Supreme Court for enforcement of Fundamental Fights), Article-33 (modification of rights in application to Armed Forces, Central Organization, Intelligence Bureau and Telecom Personnel in these three) and Article-34 (indemnification of the acts done by the Officials when Martial Law is in force). Parliament has also the Powers to prescribe punishments for the acts which have been declared as offence (like, Untouchability, Titles & Forced Labour, etc.).

Part-IV (Directive Principle of State Policy has been taken from Irish Constitution. For the “State”, the same definition given in Article-12 applies.

Article-37 – states that the Directive Principle are not enforceable through Court of Law, nevertheless these directives are fundamental in the governance of the country and it is the duty of the State to apply these Principles in making Law.

Contd……34…-: 34 :-

These have been described as “Conscience of Constitution to transform the Police State into a Welfare State”. These constitute a comprehensive Political, Social and Economic Programme to establish a modern Welfare State.

Directive Principles have been criticized as :

(1) Pious wishes of a old man;

(2) A New year Resolution to be broken sooner than later;

(3) A Post-dated Cheque drawn on an unknown Banker to be payable at the convenience of the Bank.

Article-38 – Provides 2 objectives :

(1) Promotion of Welfare of the people by securing a social order with social, economic and political justice.

(2) To minimize the inequality of income and status facilities and opportunities not only among individuals but also among different groups of people (this was added through 4th Amendment Act, 1978).

Directive Principle are classified into 3 groups :

(1) Socialistic Principles.

(2) Gandhian Principles.

(3) Liberal or Western or Miscellaneous Principles.

(1) Socialistic Principles

(1) Adequate means of livelihood.

(2) Equal Pay for equal work.

(3) Workers participation in Management (46th Amendment Act, 1946).

(4) Protection of workers and children.

(5) To regulate the economic system to avoid concentration of wealth and means of production.

Contd…….35…-: 35 :-

(6) Decent standard of living and facilities to all workers.

(7) To secure health and strength of workers, to secure children economic abuse with human conditions and maternity relief for women (added through 42nd Amendment Act).

(8) Right to work, right to public assistance in the case of unemployment, old age, sickness and disablement.

(9) Right to education (this has been made as a Fundamental Right under Article-21(A).

(2) Gandhian Principles

(1) To organize Village Panchayats and Centres of Self-governance.

(2) Promotion of Weaker Sections especially, Schedules Castes/Scheduled Tribes and protect them from exploitation and social injustice.

(3) Promotion of Cottage Industries.

(4) Prohibition of liquor and intoxicants.

(5) Prohibition of Cow Slaughter.

(3) Liberal or Western Principles

(1) Uniform Civil Code (Article-44).

(2) Free and Compulsory Education for the children below the age of 6 years (86th Amendment Act, 2002).

(3) Separation of Judiciary from Executives.

(4) Effective Legal System with even handed justice to all Citizens including, Free Legal Aid (42nd Amendment Act, 1976).

(5) Re-organization of Agriculture and Animal Husbandry on scientific lines.

(6) Protection of Environment and Wild Life.

(7) Protection of Monuments of Historical importance.

(8) Promotion of International Peace and Security.

(9) Respect for International Law and Treaty Obligation.

Contd……36…

-: 36 :-

Of the above directives, Article-38 & 39 provide the Doctrine of Distributive Justice. This concept indicates the removal of economic inequality.

Article-38 gives objectives & Article-39 provides implementation of Socialistic Principles.

Article-39 says that the ownership and control of the material resources of the society should be so distributed that it serves the common interest.

Article-39(C) says that the operation of the economic system should be so regulated that it does not result in the concentration of wealth and means of production to the detriment of Society.

Difference between Fundamental Rights & Directive Principles :

Fundamental Rights are limitation on the State. Directive Principles are positive obligation of the State. Fundamental Right ends political democracy and Directive Principle ends socio-economic democracy. Fundamental Rights can be enforced through Court of Law whereas Directive Principles cannot be enforced.

Article-13 & 32 protect Fundamental Rights whereas Directive Principles do not have the protection.

Relation between Fundamental Rights & Directive Principles :

Basically, because of the protection from Article-13 & 32, Directive Principles cannot over-write Fundamental Rights. However, Supreme Court propounded a Doctrine of Harmonious Relations. According to Supreme Court, there is no conflict between Fundamental Right and Directive Principle. They complement each other. If any provision of the Constitution gives 2 or more interpretation, the Court should take that interpretation which avoids the conflict. If the conflict is unavoidable, then Fundamental Right must prevail.

Supreme Court struck down the Bank Nationalization Act and Privy Purse Act because these violated Article-14, 19 & 31. These 2 Legislations meant to implement Article-13 (B) & (C). 25th Amendment Act, 1971 inserted Article-31 (C) and extended protection from Judicial Review to Article-39 (B) & (C).

Contd…….37…-: 37 :-

Implementation of Directive Principles

(1) Abolition of Zamindari System.

(2) Land Reforms.

(3) Organization of Village Panchayats (73rd & 74th Amendments).

(4) Promotion of Cottage Industry.

(5) Establishment of Silk Board, Coir Board, Khadi & Village Industries Commission, All India Handicrafts Board, Maternity Act, Children’s Act, Industrial Disputes Act, Protection of Civil Rights Act, Dowry Prohibition Act, Abolition of Privy Purse, Nationalization of Insurance, Nationalization of Banks, etc. are the result of its implementation.

Directive Principles which have not been fully implemented

(1) Right to Work.

(2) Uniform Civil Code.

(3) Prohibition of Liquor.

(4) Prevention of Cow Slaughter.

(5) Participation of Workers in Management.

Directives in other Parts of Constitution

(1) Provision of facilities for instruction in mother tongue at the Primary stage to the children of linguistic minorities {Article-350(A)}.

(2) Promotion of spread of Hindi and its development so that it may serve as the medium of expression of the composite culture (Article-351).

(3) The Clauses of Schedule Castes & Scheduled Tribes should be taken into account consistently with maintenance of efficiency in administration (Article-335).

Contd…..38…-: 38 :-

Article-51(A) {Part-IV(A)} - Fundamental Duties

Fundamental Duties taken from the Constitution of Japan and other Communist Countries recommended by Dr. Sharan Singh Committee added through 42nd Amendment Act, 1976. Originally, there were 10 Duties. Subsequently, 86 th

Amendment Act, 2002 added a duty for every Citizen who is a Parent or Guardian to provide opportunity for education for his child/ward in the age group of 6 and 14.

The other 10 Fundamental Duties are :

(1) To abide by the Constitution and respect its ideals, institutions, National Flag and National Anthem.

(2) To cherish and follow the noble ideals of our Freedom Struggle.

(3) To protect and afford Sovereignty, Integrity & Unity of the country.

(4) To defend the country and render National Service.

(5) Promotion of Harmony, Spirit of Common Brotherhood among all People of India and to renounce the Practices, derogatory to the Dignity of Women.

(6) To protect rich Heritage of our Country.

(7) To safeguard Public Property and avoid violence.

(8) To develop scientific temper, humanism and spirit of enquiry.

(9) To improve natural environment including, Forest, Rivers with compassion for living creatures.

(10) To strive for excellence in all spheres of individual and collective activity so that the country rises to higher level of achievement.

Fundamental Duties is an aid to interpret the Constitution. Even though, it cannot be enforced through Court of Law. It is a Guide for interpretation of the provision of the Constitution. If there is any doubt in Constitution, the Mandate in Article-51(A) should provide. In a recent case of Compulsory Retirement of an official who overstayed his leave was upheld by the Supreme Court observing that the official has isolated his Fundamental Duty in rendering the National Service.

Contd……39…-: 39 :-

Part-V – Union Executives(Extend and Scope of Executive Powers of Union)

Union Executives consist of President, Vice President, Council of Ministers and Attorney General.

Article-52 - provides that there shall be a President of India.

Article-53 – says that the Executive Powers of the Union are vested in President of India and shall be exercised by him either directly or indirectly through his Subordinates in accordance with the provisions of the Constitution.

The Supreme Command of all the 3 Armed Forces is also vested in President of India and he is to exercise these Powers as authorized by Law. Nothing in this Article shall be deemed to transfer to President any function which has been conferred on the State or any other Authority. Similarly, Parliament is authorized to confer any function on any authority other than President.

The term Executive Power given in Article-53 is explained in Article-73 which explains the extent and scope of the Executive Power of the Union.

Executive Power is not defined in the Constitution. However, it indicates the residue or balance of the governmental functions which remained after Legislative and Judicial functions are taken away.

Broadly, the Executive functions cover determination and implementation of Policies, initiation of Legislative proposals, maintenance of Law and Order, promotion of socio, economic and political welfare schemes, formulation of Foreign Policies, general administration of the State including, day-to-day administration except, those functions specifically given to Judiciary and Legislature. Therefore, Article-73 says that the Executive Power of the Union extends to the matters on which Parliament has Powers to make Law and also to exercise such rights which are exercised by virtue of any Treaty or Agreement.

How the Executive Powers of the Union are exercised?

Article-53 provided that the Executive Powers of the Union is vested in President and he will exercise these Powers either directly or indirectly through his Subordinates in accordance with the provisions of the Constitution.

Contd…..40…-: 40 :-

This term namely “in accordance with the provisions of the Constitution” should be read with Article-74.

Article-74 says that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall in exercise of his functions act according to such advice. By stating “in exercise of his functions”, it is made clear that the President has to act in all his functions only on the advice of the Council of Ministers.

He cannot act without the advice of the Council of Ministers nor can he act contrary to the advice of the Council of Ministers. In case of any difference of opinion, the only option open to the President is to refer back any advice to the Council of Ministers for reconsideration. If the Council of Ministers reconsidered the advice and tenders again the same advice, such a reconsidered advice has binding on the President.

Most importantly, whether any advice was given by Council of Minister to the President and if so the nature of advice cannot be questioned in any Court of Law, a judicial immunity is given to all Cabinet decisions. It is also made clear that any number of Ministers without a Prime Minister is not a Council of Ministers whereas a Prime Minister with only one Cabinet Minister constitutes a Council of Ministers.

How the Council of Ministers is formed?

Article-75 explains formation of Council of Ministers. President appoints the Prime Minister and on his advice the other Ministers. Ministers hold their office during Pleasure of the President. Council of Ministers is collectively responsible to Lok Sabha. President is to administer Oath of Office and Secrecy to all Ministers in the Format as given in Schedule-III.

A Minister who is not a Member of either House of Parliament can remain as Minister only for 6 months within which period he should become a Member of either House failing which he will lose Ministership.

91st Amendment Act, 2003 has provided that the strength of Council of Ministers should not exceed 15% of the strength of Lok Sabha.

Contd……41…-: 41 :-

Normally, Prime Minister should be a Member of Lok Sabha but rarely from Rajya Sabha also. Constitution does not provide for the post of Deputy Prime Minister. It is only a matter of description and does not confirm any power of the Prime Minister.

What is collective responsibility?

Collective responsibility means that the Council of Ministers as a body is responsible only to Lok Sabha for general conduct of the affairs of the Government. The Council of Ministers works as a team and all the decisions of the Cabinet are joint decisions of the Members of the Cabinet. No matter whatever be there personal difference of opinion within the Cabinet and once a decision is taken in the Cabinet, it is the duty of each Minister to stand by the decision and support it both in the Legislature and outside. In other words, Cabinet as a team sinks and sails together. If any Minister does not agree with a Cabinet decision, the option is open to him is to resign. He cannot remain in the Cabinet and oppose the decision of the Cabinet. This Article also implies that Council of Ministers is responsible only to Lok Sabha i.e. No Confidence Motion cannot be brought before Rajya Sabha.

What is individual responsibility?

Every Minister is responsible for the acts of the Officers of his Department. He is to reply Questions, Adjournment Motion and Calling Attention Motion regarding the affairs of his Department in the Parliament. The Minister is responsible and he cannot throw the responsibility on officers or other Ministers for every act of negligence raised in Parliament. However, if the Minister has taken the Cabinet into confidence, then the Principle of collective responsibility applies and the whole Cabinet is responsible for that and it should defend the Minister if such a decision goes wrong.

Duties of the Prime Minister towards President

Article-77 – All Executive functions of Government of India shall be expressed to be taken in the name of President. Orders and other instruments made and executed in the name of President, should be authenticated in such a manner as specified in the Rules to be made by President. The validity of an Order made or executed by President and so authenticated cannot be questioned in any Court of Law on the ground that it is not an order made or executed by President himself.

Contd…….42…-: 42 :-

For Convenient transaction of business of Government of India, the President is to make 3 Rules which are :

(1) Transaction of Business Rules.

(2) Allocation of Business Rules.

(3) Authentication of Order Rules.

Article-78 – Constitutional Duties of Prime Minister towards President

The Prime Minister has 3 duties :

(1) To communicate to President all the decisions of the Council of Ministers on the administration of the affairs of the Union and the proposals for Legislation.

(2) To furnish such information relating to the administration of the affairs of the Union and the proposals for Legislation as the President may call for;

(3) If the President so requires, the Prime Minister is to submit for consideration of Council of Ministers any matter on which a decision was taken by a Minister but has not been considered by Council of Ministers or Cabinet.

Even though, the Prime Minister is duty bound to provide information sought for by President, the Constitution does not specify as to when such information should be provided. Therefore, the Prime Minister can meet him every week as Pt. Jawahar Lal Nehru did, every month as Mrs. Indira Gandhi did and quarterly as Mr. Rajiv Gandhi did.

President of India

President of India is the Head of State and he is the symbol of unity of the country.

Qualifications : Citizenship, should have completed 35 years of age, should be an Voter in any of the Parliamentary Constituency, should not hold any Office of Profit under the Government of India or any State Government or local authority. However, holding the Office of President, Vice President, Governor or Minister of the Union or the Sate or not construed as Office of Profit.

Contd……43…-: 43 :-

Term of Office : 5 years from the date of entry into the Office. Even after the expiry of the specified term, he will continue till his successor enters. He is eligible for re-election for any number of terms. He can resign by writing to Vice President. He can be removed by a process of Impeachment.

Elections to fill the vacancy caused by the expiry of the term should be completed before the expiry of the term. However, election to fill the casual vacancy due to death or resignation or removal, etc. should be held within 6 months. During the period of 6 months, Vice President will act as President.

Privileges : The Pay and Allowances and emoluments of the President and his Secretariat are “Charged” into “Consolidated of Fund”. The Salary, Allowances and other Privileges cannot be varied to the disadvantage of the President during the term of his Office.

In addition, President enjoys the immunity given to him under Article-361 of the Constitution (an Exception to equality before Law).

Conditions for holding Office : The President of India should not be a Member of either House of Parliament or State Legislature. If a Member of either House of Parliament or State Legislature gets elected as President, he would be deemed to have vacated his seat on his entry into the Office of President.

His emoluments are Rs.1.5 Lakh per month as Salary and Rs.75000 per month as Pension. He is administered Oath of Office by Chief Justice of India or in his absence, Senior-most Judge of Supreme Court. The primary responsibility of the President is to Preserve, Protect and Defend the Constitution.

Election of President : The President of India is elected by an Electoral College consisting of elected Members of both the House of Parliament and elected Member of Legislative Assembly of all the State including, Delhi & Pondicherry. The nominated Members of Parliament can NOT vote.

The election is held in accordance with the System of Proportional Representation by Single Transferable Vote. The Vote being Secret. The basis for proportional representation is uniformity in the scale of representation among the States and parity between the States.

Contd…. 44…-: 44 :-

In other words, every elected Member of Legislative Assembly of each State shall have as many as there are multiples of 1000 in the quotient by obtaining by dividing the population of the State by the total number of elected Members of that Assembly.

Value of a Vote of an MLA is = State Population (as per 1971 Census) X 1 Total elected Members of the Assembly 1000

The balance of 500 or more should be taken as 1 (one). Let us say Punjab Population is 2,08,49,840. There are 208 elected Members. Let us calculate the value of a Vote of an MLA of Punjab as under :-

Value of a Vote of an MLA = 20849840 X 1__ = 100 208 1000

Therefore, each MLA of Punjab can cast 100 Votes. 208 Members of Punjab Assembly can vote upto the value of 20,800. The number of Votes which each elected Member of Parliament can cast is obtained by dividing the total number of Votes of Legislative Assembly of all the States obtained under the above formula by the total number of elected Members of both the Houses of Parliament. If the balance exceeds half, it is treated as 1.

For e.g. the total number of Votes of elected Members of Assemblies of all States is 74940 and the total number of elected MPs is 750, then the value of 1 MP is :

74940 = 99 23 i.e. 99 + 1 = 100 750 25

In other words, the total value of an MP Votes is 75000 (i.e. 750 X 100).

Electoral Quota

In the system of proportional Representation, when a 2 or more candidates contest for a Single Post, the winning candidate should get more than 50% either in the 1st Count or in subsequent Counts. This more than 50% is called Electoral Quota.

Contd……45…-: 45 :-

For e.g.

Electoral Quota = No. of Valid Votes Polled (+) 1No. of Seats Vacant + 1

If the Votes Polled is 100 and Seat Vacant is 1. Now, the Electoral Quota will calculated as under :

100 (+) 1 = 100 = 50 + 1 = 511+1 2

Single Transferable Vote has been explained as under :-

In Single Transferable Vote, each Voter has a choice of more than one preference. He can mark his preference in the Ballot Paper. The 2nd & 3rd

preference Vote are taken into consideration in the 3rd and subsequent Counts.

In the 1st Count only 1st preference Votes are considered. If no candidate gets Electoral Quota, then the 2nd Counts occurs. At this stage, the Candidate with least number of Votes is eliminated. His Votes are transferred in favour of the Candidates according to 2nd preference. This process goes on and subsequent preferences are counted until 1 Candidate gets equal to or more than the Electoral Quota. This process includes re-poll also :

For e.g. There are 4 Candidates (A), (B), (C), (D). Valid Votes are 15000 and Electoral Quota is 7500 + 1 = 7501.

In the 1st Count, the Votes polled in favour of the Candidates are as follows :-

(A) = 5250 |(B) = 4800 | 1st Preference Votes(C) = 2700 |(D) = 2250 |

Here, no one got the Electoral Quota namely 7501. Now, (D) with least number of Votes is out of the race. His 2nd preference Votes will be transferred to the rest of the Candidates.

Contd……46…-: 46 :-

Let us presume that the following Votes polled in favour of the Candidates as their 2nd Preference :

(A) = 300 |(B) = 1050 | 2nd Preference Votes(C) = 900 |

Now, add the above Votes to the respective Candidates which will be as under :

(A) = 5250 + 300 = 5550(B) = 4800 + 1050 = 5850(C) = 2700 + 900 = 3600

Here also, even after 2nd Count is over, no one got the Electoral Quota. Now, (C) having obtained the least number of Votes is out of the race. The 3 rd preference Votes recorded in favour of (C) are now transferred to (A) & (B) respectively. The 3rd Preference Votes polled in favour the Candidates are as under :

(A) 1700 | 3rd Preference(B) 1900 | Votes

Now, add the above Votes to the respective Candidates which will be as under :

(A) = 5550 + 1700 = 7250(B) = 5850 + 1900 = 7750

Therefore, (B) having obtained more than the Electoral Quota and also the highest, he is declared elected in spite of the fact that he got less number of 1st

preference Votes than (A).

Any dispute with regard to Presidential Election shall be decided by the Supreme Court and its decision is final (Article-71). However, no action of the President shall be declared invalid by the Court even if it invalidates the election on the ground of violation of any provision of Presidential Election Act. The Court will not go into the suitability of the person elected because this is to be decided by the Member of Electoral College and not by the Court.

After having been unseated by Allahabad High Court, Smt. Indira Gandhi brought out 39th Amendment Act, 1975 whereby the disputes with regard to election of President, Vice President, Prime Minister & Speaker are to be decided by an Authority appointed by a Law to be made by Parliament.

Contd…….47…-: 47 :-

It was also envisaged that the Law so made cannot be questioned in any Court of Law. However, 49th Amendment Act, 1978 nullified this Amendment and restored ‘status quo ante’.

The election can be challenged only by the Candidate supported by 20 Electors (in the case of President and 10 in the case of Vice President). Supreme Court declared that incomplete Electoral College cannot be a ground for challenging the Presidential Election.

Impeachment of President (Article-61)

President can be impeached only for violation of Constitution. The charges shall be preferred by either House of Parliament in the form of a proposal conferred in a Resolution being moved after atleast 14 days Notice in writing signed by NOT less than 1/4th of total Members of that House declaring their intention to more the Resolution. That Resolution shall be passed by a majority of 2/3 rd of the total Membership of that House.

Now, the other House shall investigate the Charges or Cause of the Charges to be investigated. The President has the right to appear or be represented during such investigation. If, as a result of investigation, a Resolution is passed by a majority of NOT less than 2/3rd of the total Membership of that House declaring that the Charges have been sustained, then such a Resolution shall have the effect of removing the President from the date on which the said Resolution is passed.

Deficiencies

(1) Only MPs are involved for the removal of the President whereas in the case of Presidential Election, Electoral College consisting of MPs & MLAs involved.

(2) Nominated MPs have no role in the Presidential Election whereas in the process of his removal, they can vote.

(3) Every Investigation Committee be made in the name of the President. In the case of Impeachment, the accused President cannot be made in his name.

(4) There is no Time limit defined nor violation of Constitution is defined.

Contd……48…-: 48 :-

Vice President

Vice President is the Ex-Officio Chairman of Rajya Sabha. He shall not hold any Office of Profit. However, when he acts as a President, he shall not perform the duties of Chairman, Rajya Sabha. In the event of any vacancy in the Post of President due to Death, Resignation or Removal or otherwise, Vice President will act as President till the new President enters upon the Office. The election to the President should be held within 6 months. However, when President is unable to discharge his functions due to illness or for any other cause, Vice President shall discharge his functions. When Vice President acts as President, he enjoys all the Powers, Immunities and Emoluments as allowed for President.

Qualifications – Should be a Citizen of India, 35 years of age and should be a Voter in any of the Parliamentary Constituency and shall not hold any Office of Profit. However, holding Office of President, Vice President, Governor or Minister in the Union or State will not be construed as an Office of Profit.

Vice President is elected by an Electoral College consists of MPs of both the Houses of Parliament by a System of Proportional Representation by Single Transferable Vote and Voting being Secret. In other words, nominated MPs can also Vote. Vice President has a term of 5 years from the date of entry into the Office. He can resign by writing to President.

Vice President is removed from Office by a Resolution of Rajya Sabha after 14 days Notice and passed by a majority of all the then Members of the House and as agreed to by Lok Sabha and for this no reason to be cited nor any initial strength of support is required.

Importance of Vice President – His primary duty is to preside over the sittings of Rajya Sabha as Chairman. He can act as President in the vacancy created by death or resignation or removal of the sitting President. Even in such cases, he can act only for 6 months within this period, the election for President should be conducted.

The moment he becomes President, he is no longer Vice President because he becomes full-fledged President with all privileges, immunities and status. The Constitution does not provide any machinery to consider President’s inability to discharge his functions. It is for the President to decide when he is unable to discharge his functions and when he would be able to resume his duties.

Contd……49…-: 49 :-

Powers of the President

(1) Executive Powers

All Executive Powers are vested with the President who exercises the Posers in accordance with the provisions of Article-74. All Executive actions of the Union are expressed to be taken in the name of President. President makes Rules for Authentication of Orders and other instruments made and executed in his name. He also makes the Rules for convenient Transaction of Business and Allocation of Business. President appoints the Prime Minister and on his advice, the other Ministers. President appoints the Attorney General, Comptroller & Auditor General, Judges of Supreme Court & High Courts, Governors of the States, Chairman & Members of Election Commission, UPSC, Finance Commission, etc. In making some of the appointments, he is required to consult certain persons other than his Ministers.

For e.g. While appointing the Judges of Supreme Court, he is to consult Chief Justice of India.

Eventhough these dignitaries are appointed by President, they can be removed only after following the procedure stipulated in the Constitution. In the case of inferior officials, the President is obliged to consult UPSC in matters relating to appointments and discipline.

President is the Administrator of Union Territories. President has the right to be informed of all decisions of the Cabinet and also the Legislative Proposals. He should be provided with such other information as may be required. He can ask the Prime Minister to place a decision of an individual Minister for consideration of the Council of Ministers. He may issue directions to the State Governments for maintenance of Law & Order.

(2) Diplomatic Powers

President represents the Nation. He sends and receives the Ambassadors and other Diplomatic Agents. All Treaties and International Agreements are made in his name though that implementation may require Legislation

Contd……50…-: 50 :-

(3) Military Powers

President is the Supreme Command of the Defence Forces. He can declare War & Peace. He appoints all the 3 Chiefs of Army. However, the Military Powers are regulated by Law.

(4) Legislative Powers

Union Legislature consists of President, Vice President, Lok Sabha & Rajya Sabha. He is to summon each House of Parliament periodically. But the interval between 2 Sessions should not exceed 6 months. He can prorogue both the Houses and can Dissolve Lok Sabha. He can convene Joint Sitting of both the Houses to resolve a dispute between the two Houses over a Non-Money Bill. At the commencement of 1st Session of each year, the President will address a Joint Sitting of both the Houses of Parliament. He can also address any time either House or both the Houses together and for this purpose, he can require the attendance of the Members. He can send Message to either House or both the Houses with reference to any Bill pending or otherwise.

President can nominate 12 Members to Rajya Sabha from among those who are distinguished in the areas of Literature, Art and Social Science. He can also nominate 2 Anglo-Indian Members for Lok Sabha, if this said Community is not adequately represented in Lok Sabha. He appoints “Protem Speaker” (The senior- most Member to be elected as Speaker for the purpose of “Oath of Office and Secrecy”) and also Acting Deputy Chairman when Chairman is acting as President and Deputy Chairman is not available.

In certain cases, the recommendation of President is essential for introduction of certain Bills like, Money Bills, Finance Bills, Financial Bills, Bill which is to change the name of a State or Territory of the State, etc. and not following the above provision, the President can eventually refuse to give assent to the Bill (as in the case of Shri R. Venkataraman, Ex-President).

No Bill can become an Act without the consent of the President. When a Bill

is passed by both the Houses of Parliament and it is presented to President for his assent he has the following options :

(1) He can declare his assent in which case the Bill becomes an Act;

(2) He can declare that he is withholding his assent which is called – (otherwise known as “Absolute Veto”)

Contd…….51…-: 51 :-

(3) He may in the case of Bills other than Money Bill and Constitutional Amendment Bill, return the Bill for reconsideration of both the Houses of Parliament. If the Bill is passed again by both the Houses, the President has to give his assent. This is called “Suspense Veto”.

In addition to Absolute Veto and Suspense Veto, there is one more Veto called “Pocket Veto”. The Constitution has not prescribed any time-limit for President to decide on giving assent or not. Taking advantage of this lack of provision, President sits over a Bill or Pockets the Bill, which is known as “Pocket Veto”.

For e.g. Post Office Amendment Bill, 1986, President may withhold, assent in the following cases :

(1) Private Members Bill on the advice of the Council of Ministers;

(2) In the case of Govt. Bill after the passage but before assent, a new Council of Ministers took charge and advises the President to withhold his assent.

(3) In case of Bills which did not follow the necessary procedures or which are beyond the competence of Parliament.

(4) In respect of Constitutional Amendment Bill, President has to give his assent. He cannot even exercise “Pocket Veto”.

(5) Ordinance Making Powers (Article-123)

If, at any time, when both the Houses of Parliament are not in Session and when the President is satisfied that circumstances exist which it make it necessary to take immediate action, he may issue such an Ordinance as the circumstances may warrant so.

The Ordinance shall have the same force of law made by Parliament. The Ordinance should be placed before Parliament and should be approved by both the Houses within 6 weeks from the date of re-assembly unless it is disapproved earlier by Parliament. President can withdraw the Ordinance at any time.

Ordinance making Powers are co-terminus with the Legislative Powers of Parliament. It implies that the Ordinance can not violate Fundamental Rights.

Contd…….52…-: 52 :-

It has been made clear by adding Ordinance within the definition of Law in Article-13. The Ordinance making Power is exercised by President on his own satisfaction. It cannot be questioned in any Court of Law. Ordinance can be issued only when both the Houses of Parliament are not in Session. An Ordinance can also be issued when one House is in Session and the other House is not in Session because a law cannot be made by one House alone.

Except India, no other country has this provision where Executives exercising the Powers of Legislature. This Power has been greatly misused in Wadhwa Case wherein Supreme Court commented that the misuse as fraud on the Constitution. Whenever Govt. seeks to replace the Ordinance with a Bill, an Explanatory Statement should accompany, explaining the urgency for Ordinance. This Statement is only for information and no discussion is held on that.

(6) Judicial Powers (Article-72)

The President has the Powers to grant Pardon, Reprieve, Respite, Remission of any Punishment or Remit or Commute the sentence of any person convicted of any offence in the following 3 cases :-

(1) In all cases, where the punishment or sentence is by a Court Martial;

(2) In all cases, where the punishment or sentence is for an offence against any Law relating to a matter on which the Executive Powers of Union extends.

(3) In all cases, where the sentence is a “Sentence of Death”.

The purpose of this Judicial Power for the President is to correct the possible errors committed by the Judiciary.

In Kehar Singh case, Supreme Court laid down following Principles :-

(1) The convict has no right to insist for oral hearing;

(2) No guidelines can be prescribed for President for exercising this Power;

(3) President can exercise this Power only on the advice of Council of Ministers;

(4) President can go into the merits of the case and take a different view;

(5) The Powers of the President is not subject to Judicial Review.

Contd……53…

-: 53 :-

Pardon – to completely absolve the offender from all punishments and sentences and place him in the same position as if he has not committed any crime at all.

Commutation – to substitute of one form of punishment for another of a lighter character (Rigorous Imprisonment to Simple Imprisonment – just one below).

Remission – to reduce the amount of sentence without changing the character (one year Rigorous Imprisonment to 6 months Rigorous Imprisonment).

Respite – to award a lesser Penalty on special grounds (a pregnant lady caught for theft being awarded Simple Imprisonment instead of Rigorous Imprisonment).

Reprieve – to temporarily suspend execution of a sentence pending proceedings for Pardon or Commutation.

(7) Emergency Powers

(1) National Emergency (Article-352)

If the President is satisfied that a grave emergency exists whereby the security of India is threatened by war or external aggression or armed rebellion, he may proclaim emergency in respect of whole or part of India. Armed Rebellion was inserted through 44th Amendment Act, 1978 in the place of internal disturbances.

This Proclamation can be revoked or varied by President. Actual occurrence of war, external aggression or armed rebellion is not essential. Instead, imminent danger or such an occurrence is enough. The Proclamation can be issued by President only when the Cabinet i.e. the Prime Minister & other Ministers of Cabinet rank communicate the decision in writing (unlike not merely on the advice of Prime Minister as was done by Smt. Indira Gandhi in June, 1975) that the Proclamation should be laid before each House of Parliament within 1 month, which should be approved.

Contd……54… -: 54 :-

If Lok Sabha is dissolved during this 1 month, Rajya Sabha will approve it first and Lok Sabha will approve within 30 days from the date of re-assembly after General Election. The Resolution should be passed by both the Houses by Special Majority and such a Resolution is valid for 6 months from the date of Proclamation.

For further continuance of emergency, Parliament approval is required by Special Majority every 6 months. If Lok Sabha is dissolved during this 6 months period, without approving further extension, Rajya Sabha should approve it first and Lok Sabha will approve within 30 days from the date of re-assembly after General Elections.

President revokes Proclamation, if Lok Sabha passes a Disapproval Resolution by Simple Majority. For this purpose, Lok Sabha can be convened if 1/10th of the total Members request for the Session. The Notice should be given to the President, if the House is not in Session and to the Speaker if the House is in Session. The President or Speaker should convene the Session within 14 days from the date of receipt of Notice.

(2) Constitutional Emergency or State Emergency or President’s Rule (Article-356)

Where the President is satisfied on the basis of the report of the Governor or otherwise that a situation has arisen in which the State Govt. cannot be carried on in accordance with the provisions of the Constitution, he may proclaim President’s Rule for that particular State for 6 months in the first instance. This Proclamation should be approved by both the Houses of Parliament within 2 months lest, it would expire. If Lok Sabha is dissolved during these 2 months, Rajya Sabha should approve it first and Lok Sabha will approve within 1 month from the date of re-assembly after General Elections. The approval of Proclamation by Parliament is by Simple Majority. The validity of 6 months is calculated from the date of Proclamation. Parliament can extend President’s Rule through similar Proclamation to be passed by simple majority upto 3 years.

Contd……..55…

-: 55 :-

However, the Proclamation of President’s Rule cannot be extended beyond 1 year unless following 2 conditions are to be satisfied :

(i) A Proclamation of National Emergency should be in operation either in whole of India or whole of the State or any part of the State.

(ii) Election Commission should certify that during the period, it is difficult for them to hold elections to the Assembly of the State under President’s Rule.

Therefore, President’s Rule cannot continue in any State beyond 3 years unless :

(i) The Constitution is amended;

(ii) The ground of President’s Rule is different from the earlier one.

Consequences of President’s Rule

(1) The Legislative Powers of the State will be exercised by the Union Parliament i.e. Parliament is competent to make Law on all State subjects with regard to that particular State.

(2) Fundamental Rules are not suspended.

(3) Since the country has unified Judiciary, High Court retains its Authority.

(4) The Executive Powers of the Union will extend to give in directions to the State how it should be run.

In S.R. Bommai case (1994), Supreme Court unanimously held :-

(1) President’s Powers under Article-356 is subject to Judicial Review.

(2) President’s Rule cannot be imposed without Written Report of the Governor.

(3) If a State Govt. works against Secularism, Presidents’ Rule can be imposed.

(4) No whole-sale dismissal of opposition-ruled State Governments, when a new Political Party comes to power at the Centre.

Contd…….56…-: 56 :-

(5) Imposition of President’s Rule and Dissolution of State Assembly cannot be done together. The State Assembly can be dissolved only after the approval of such Proclamation by Parliament.

(6) If President’s Rule is imposed as political consideration, the Court can order for restoration of the dismissed State Assembly.

(7) The Judiciary can compel the Union Government to disclose the grounds and relevant material based on which the President’s Rule was imposed.

(3) Financial Emergency (Article-360)

If the President is satisfied that a situation has arisen whereby the Financial Stability or Credit of India or of any part of its Territory is threatened, he may, by Proclamation, impose Financial Emergency. Both the House of parliament should approve the Proclamation within 2 months by Simple Majority. The Proclamation can be revoked or varied by the President by subsequent Proclamation. If Lok Sabha is dissolved during these 2 months, Rajya Sabha should approve it first and Lok Sabha will approve within 1 month from the date of re-assembly after General Election. There is no need for further approval of Parliament for the continuance of Finance Emergency.

Consequences/Effects of Financial Emergency

Executive Powers of the Union shall extend to give in directions to any State to observe such Principles of financial propriety as deemed necessary to maintain Financial Stability & Credit. These directions may include a provision for reduction of salary for a class of people or all classes of people including Judges of High Court and also reservation of Money Bills & Financial Bills passed by State Legislatures for consideration of President.

This is the only emergency which has not been imposed in our country so far because once it is imposed, our capacity to repay will be in doubt and as a result of that no country will give us any loan or financial assistance.

Contd……57…-: 57 :-

Union Legislature

Rajya Sabha (Original Strength 238 + 12 = 250, presently 233 + 12 = 245)

Rajya Sabha is the Council of States with the representatives of the States. The Council has a maximum strength of 250 (238 + 12) of whom 238 are the representatives of the States and 12 are nominated Members. At present, Rajya Sabha has 233 + 12 = 245 Members.

The Members are elected by the elected Members of Legislative Assembly of all the States & Union Territories, including Delhi & Pondicherry by a system of “Proportional Representation by Single Transferable Votes” with Open Ballot. President can nominate 12 Members chosen from among the eminent persons having special knowledge & experience in the fields of Literature, Art or Social Science.

The reservation of seats is given in Schedule-IV. There is no reservation for Scheduled Castes/Scheduled Tribes in Rajya Sabha. Vice-President is Ex-Officio Chairman of Rajya Sabha. Rajya Sabha will elect a Member as Deputy Chairman. When the Chairman (i.e. Vice-President) is acting as President, Deputy Chairman will perform the functions of the Presiding Officer of Rajya Sabha.

Qualifications : Should be an Indian Citizen, should have completed 30 years of age, should be an Elector in any of the Parliamentary Constituency in India and should not hold any Office of Profit. Holding an Office of President, Vice-President, Governor or Minister in Union or any State will not be construed as Office of Profit. Nominated Members have equal voting rights except, for the election of President.

Rajya Sabha is a Permanent Body with 1/3rd of its Members retiring every 2 years making the term of the Members 6 years except in the case of Casual Vacancies for whom the term would be the balance or rest of the tenure.

Powers of Rajya Sabha - These can be groups under 3 Categories :-

(i) Equal Powers with Lok Sabha;

(ii) Unequal Powers with Lok Sabha;

(iii) Exclusive/Special Powers of Rajya Sabha.

Contd…….58…

-: 58 :-

(i) Equal Powers : Rajya Sabha enjoys equal Powers with regard to Non-Money Bills or Non-Constitutional Amendment Bills. A Non-Money Bill can be delayed by Rajya Sabha for 6 months. In the case of any dispute between Lok Sabha and Rajya Sabha, Joint Session can be convened to resolve the dispute. Even in Joint Session, the will of Lok Sabha always prevails over Rajya Sabha (Article-543 vis-à-vis Article-243).

(ii) Unequal Powers : It has only an inferior position in the case of Money Bills. Rajya Sabha cannot pass a Money Bill. It can only recommend amendments and those are not binding on the Lok Sabha and can also be rejected. Rajya Sabha can delay a Money Bill only for 14 days. On the 14 th

day, the Bill is deemed to have been passed by both the Houses of Parliament.

(iii) Special/Exclusive Powers :

(1) Under Article-249, Rajya Sabha can pass a Resolution by 2/3rd

majority of the Members sitting and voting, authorizing Parliament to make a Law on a State subject in national interest. This Resolution is valid for 1 year and can be renewed every year by passing similar Resolution by similar majority.

(2) Under-312, Rajya Sabha can pass a Resolution by 2/3rd majority of the Members sitting and voting declaring that it is desirable to create an All India Service in national interest.

(3) The election of Vice-President and removal of Vice-President, Rajya Sabha plays a major role.

(4) In the case of approval of emergencies, the role of Rajya Sabha is crucial when Lok Sabha is in a state of dissolution.

Existence of Rajya Sabha is so desirable for the following reasons :

(1) Senior Politicians and Statesmen can get access to Parliament and also to Council of Ministers through Rajya Sabha without undergoing the ordeal of elections so that the country can utilize their experience and service.

Contd……59…

-: 59 :-

(2) Rajya Sabha acts as a speed-breaker over Lok Sabha being a popular House. Lok Sabha is always tempted to act hurriedly to fulfill the public opinion and wishes. In such cases, Rajya Sabha puts a break so that Lok Sabha is given an opportunity to think it again and reconsider the decision taken at the heat of the moment.

(3) Rajya Sabha is a Federal Chamber with representatives of the States which is mandatory for Federal system of Constitution.

Lok Sabha(Original Strength 530 (States) + 20 (UTs) = 550 &

presently 543 + 2 Anglo-Indians = 545)

Lok Sabha is a popular House directly elected by people. Original strength is 550 of which 530 to be elected from the States and 20 from Union Territories. 2 Anglo-Indian Community Members are to be nominated by the President if they have no adequate representation in the House.

At present, 543 elected Members including Speaker and 2 nominated Members from Anglo-Indian Community.

Qualifications : Citizenship, 25 years of age, Should be a Voter in any of the Parliament Constituencies.

In addition, Representation of People’s Act has prescribed the following disqualifications :-

(1) Corrupt practices at election;

(2) Conviction for an any offence involving 2 years Imprisonment or more;

(3) Failure to lodge an account of election expenses;

(4) Having any interest/share in any of the Companies;

(5) Dismissal from Govt. service for disloyalty or corruption;

(6) Any conviction under Dowry Prohibition Act, Protection of Civil Rights Act, Essential Commodities Act or Foreign Exchange Maintenance Act (FEMA);

Contd……60…

-: 60 :-

In addition to the above, a person is disqualified from being chosen a Member of Parliament or continuing as Member of Parliament, if he suffers from the following disqualifications :-

(1) Unsound mind or insanity;

(2) Un-discharged insolvent;

(3) Not a Citizen of India or voluntarily acquired any Foreign Citizenship or acknowledged any Foreign Allegiance;

(4) Disqualified under any Law of Parliament.

Following are the 5 situations where a Member loses his seat :

(1) If election is declared invalid;

(2) Member disqualified under Article-102;

(3) Anti-defection Law;

(4) House expelling the Member;

(5) Absence of a Member from the House for 60 days or above.

Once an election is declared, the Court will not intervene till the completion of election. An election can be called in question only in the High Court. If the High Court holds an election invalid, the person will cease to hold office.

If the Member is disqualified under Article-102, this question is referred to President. He will take the advice of the Election Commission and the advice of Election Commission is binding on the President & the decision of President is final.

Anti-defection Law proceedings are provided in Schedule-X. Under this provision that a seat of a Member of Parliament or State Legislature shall fall vacant on the following occasions :-

(i) An MP/MLA gives up the Membership of his Party;

(ii) If he votes for or abstains from voting contrary to Party Whip without permission & the offence has not been condoned within 15 days;

Contd………61…

-: 61 :-

(iii) an independent Member joins any Political Party;

(iv) A nominated Member joining any Political Party after 6 months.

The above penal provisions will not attract the following :-

(i) When 2 or more Parties decide to merge by 2/3 rd majority of the total strength of the Party in the Legislature.

(ii) Resignation of Speaker or Deputy Speaker of Lok Sabha or Deputy Chairman of Rajya Sabha from Party Membership or joining another Party after the term.

Anti-defection Law proceedings are conducted under the Chairmanship of Speaker and the proceedings are treated as internal proceedings of the House and therefore, the validity of such proceedings cannot be questioned in any Court of Law and the decision of the Speaker is final.

The NDA Govt. brought 91st Amendment Act, 2004 by which the provision of allowing 1/3rd of the Legislative Party to split without attracting the penal provision of Anti-defection Law has been deleted.

In addition, 91st Amendment Act also added the following provisions :-

(i) The Council of Ministers strength should not be more than 15% of the Lower House.

(ii) A disqualified MP or MLA cannot be appointed as Minister till the end of the term of such Membership unless he gets elected to the House.

Similarly, it has also been provided that a disqualified Legislator cannot hold any political or remunerative Post unless he is re-elected.

In addition, the House has the prerogative to expel a Member from the House (In 1977 Mrs. Indira Gandhi was expelled from Lok Sabha for breach of privilege of the House). Besides, an MP can be removed from the seat if he has been absented himself for 60 days or more from the sittings of the House.

Contd…….62…

-: 62 :-

Term of Lok Sabha : 5 years from the date of its 1st sitting. President can dissolve Lok Sabha at any time. This cannot be questioned in any Court of Law. During National Emergency, the term can be extended for a period not exceeding 1 year at a time and not extending beyond 6 months after the expiry of National Emergency.

Offices of Lok Sabha : Speaker & Deputy Speaker are the Officers of Lok Sabha. Both are Members of the House. Though they belong to a Political Parties, they may resign their Membership from their respective Parties and their resignation will not attract the provisions of Anti-defection Law. This is to maintain the dignity and neutrality of their Offices.

Speaker can resign by writing to Deputy Speaker and Deputy Speaker to the Speaker. The Speaker is elected by the Members of Lok Sabha. The election is direct by the Members of the House by the majority of the then Members of the House.

Speaker can be removed from Office by a Resolution passed by the majority of the then Members of the House. The Resolution should be moved after giving 14 days Notice. When the discussion on his removal is on in the House, the Speaker cannot preside over the sittings.

Speaker is the Chief Presiding Officer who maintains dignity, decorum and discipline of the House. He can adjourn and re-summon the House. He allocates time for difference kinds of Business. He interprets the Rules of Procedures and provisions of the Constitution. He puts the Resolutions to vote and announce the results. He admits the Motion and Points of Order. He addresses the House on important matters. He can adjourn the House in the absence of Quorum. He allows Secret Sittings of the House.

He is the Head of Parliamentary Committees. He asks the Govt. to supply information to the House. He prevents unparliamentary and irrelevant expressions. He can name a Member. He can suspend a Member. He can order his Martials to remove a Member from the House. He admits Privilege Motions. Before arresting a Member, the permission of Speaker is necessary when the House is in Session. He controls Parliamentary Secretariat and make adequate arrangements for the security of MPs, Staff and their Property. He can accept or reject the resignation of a Member.

Contd….. 63…

-: 63 :-

Speaker has the following Special Powers :-

(i) He certifies a Bill after having been passed by the House.

(ii) He decides whether a Bill is Money Bill or not.

(iii) He certifies a Money Bill and his Certificate is beyond judicial scrutiny.

(iv) He presides over joint sittings.

(v) He is the Channel of communication between President and the House.

(vi) He nominates Members for Parliamentary Delegation.

(vii) He is the Ex-Officio Chairman of the Indian Parliamentary Group.

(viii) He corrects Patent errors in a Bill after it has been passed by the House.

(ix) He makes Obituary References and delivers Valedictory Address at the Concluding Session.

Speaker enjoys a Unique Position in the House that he continues in the Office even after the Dissolution of the House till the 1st meeting of the re-constituted House. His decisions in the Anti-defection Law proceedings are final and cannot be questioned in any Court of Law.

Whatever he says is an Order and has to be complied with except on 2 occasions which are :-

(i) When he participates in the dissolution on a matter concerning his Constituency;

(ii) When a Motion for his removal is under discussion in which case he will not preside over the sittings.

If the post of Speaker is vacant, his duties will be performed by Deputy Speaker and if that post of Deputy Speaker is also vacant, the duties will be performed by any such Member as appointed by the President.

During the absence of Speaker from any sitting, the Deputy Speaker will preside over the sittings. If he is also absent, any such person as may be determined by the Rules of Procedure of the House (Panel of Presiding Officers) and if no such person is present, then any person as determined by the House.

Contd…….64…

-: 64 :-

Privileges of Parliament or Powers of Union Legislature (Article-105)

Subject to the provisions of the Constitution and subject to the Rules of Procedure of the House, there shall be full freedom of speech & expression within the four walls of Parliament and also in the proceedings of the Parliamentary Committees.

The freedom of speech & expression guaranteed to every Citizen is subject to certain restrictions. Contrary to this, the freedom of speech & expression enjoyed by the MPs under Article-105 is totally investigated inside the Parliament. No Member is liable to any proceeding in any Court in respect of anything said or any vote for or vote against given by him in the Parliament or in any Committee.

No person shall be liable in respect of any Publication of any Report or Paper from Parliament proceedings. This freedom is available to all persons who have the right to speak in Parliament and take part in Parliament proceedings. Therefore, this Article gives absolute freedom & absolute immunity from the Court for anything said within the House. Outside the House, a Member is as good as any other Citizen and liable for defamation for his defamatory Statements.

This freedom is subject to regulatory proceedings and provisions of the Constitution. Therefore, Article-121 prohibits any discussion in the House about the Conduct of a Judge of either Supreme Court or High Court except upon a Motion for his removal.

A Member cannot be arrested or imprisoned on Civil Proceedings within 40 days before or after the Session of Parliament. This privilege is against Civil Proceedings only and not against Criminal Proceedings or Contempt of Court or Contempt of Parliament.

An MP is exempted to serve as a Juror. Similarly, he cannot be asked to attend as a Witness before the other House or before any Committee of Parliament or State Legislature without the permission of the House and his own consent.

Collective Powers - The House has the right to receive immediate information of arrest, detention, conviction, imprisonment and release of a Member. Without the permission of the Speaker or Chairman, no process of arrest or legal procedure can be initiated.

Contd…….65…

-: 65 :-

The House has the Powers to prohibit the disclosure of the proceedings of “Secret Sittings”.

The House can exclude strangers from the House. In addition, the House has the Power to punish any person whether a Member or Non-Member for Contempt of Parliament or Breach of Privilege (Mrs. Indira Gandhi expelled by Lok Sabha in 1977).

Above all, Parliament has the right to regulate the internal proceedings of the House and validity of such proceedings cannot be questioned in any Court of Law.

How a Bill becomes an Act?

(1) An Act is a formal expression of Legislative Policy. The Ministry should decide the need for an Act and Policy to be implemented at the level of Joint Secretary and above.

(2) First, the proposal is referred to Ministry of Law for its advice on the

competence of Parliament, feasibility and desirability of the proposed Legislation. At this stage, the advice will be general in nature.

(3) The advice of Ministry of Law is examined in the Administrative Ministry and if the Law is still required, the approval of the Minister In-charge of the Administrative Ministry will be obtained.

(4) For all Legislative proposals, the approval of Cabinet is required. Therefore, the Ministry (i) prepares a Self-Contained Summary with a Cabinet Note, (ii) gets the approval of the Minister, (iii) circulates the Note among all the concerned Ministries including, Ministry of Law, (iv) incorporates their comments, (v) gets the approval of the Minister for the final Note and (vi) sends the Note to Cabinet Secretariat.

(5) The Cabinet will give the approval after considering the proposal either in the Cabinet Meeting or in the Cabinet Committee or through Circulation.

(6) Now, the Administrative Ministry (i) prepares an Office Memorandum with full Back-ground of the case & the Cabinet decision and (ii) asks Ministry of law to draft the Bill.

Contd…….66…-: 66 :-

(7) Drafting of the Bill is very crucial, requiring close coordination with Ministry of Law till a perfect Bill is prepared.

(8) Minister In-charge of the Administrative Ministry will now approve the Bill

and also sign the Statement of Objects & Reasons (SOR) prepared by the Ministry. SOR is the Preamble of the Bill giving the purpose, objectives and salient features of the proposal.

(9) Some Bills like, Money Bills, Finance Bills, Financial Bills, Bill for creation of a State, etc. require recommendations of the President before the Bill being introduced. Therefore, the Ministry (i) prepares a Self-contained Note along with the decision of the Cabinet, a Copy of the proposed Bill and Summary (ii) sends it to the Cabinet Secretariat who sends the Note President’s Secretariat. Now, the President will give sanction in File.

(10) The fact of President’s recommendation will be communicated to the Secretary General of both Lok Sabha and Rajya Sabha by the Minister.

(11) The Bill should be accompanied by Financial Memoranda, if expenditure is involved, explanation for resorting to Ordinance, if the Bill is to replace the Ordinance, Extend and Scope of delegated Legislation, Copies of supportive documents (Resolution under Article-249 & Article-312).

(12) The Bill will now be sent to Ministry of Law for onward transmission to Government of India Press for printing.

(13) The Proof copy received from the Press will be checked by the Administrative Ministry and Ministry of Law. The final copy will be sent to Secretary General of the concerned House, after giving Print Order.

Procedure of passing a Bill Parliament

Money Bills can be introduced only in Lok Sabha and the rest in either House. There are 3 stages that a Bill go through in Parliament :-

(i) 1st Reading (ii) 2nd Reading (iii) 3rd Reading

Contd…….67…-: 67 :-

1 st Reading : On the day allotted, the Minister will move the Motion requesting the permission of the House to introduce the Bill. If the permission is opposed, the opposing Member will make a Statement and the Minister will reply and after that the Motion will be put to vote. Full discussion is allowed only if the Motion is opposed on the ground of competence.

After the Bill is introduced, it will be published in the Gazette Extra-Ordinary and its copies given to the Members of both the Houses of Parliament. 1st reading ends here.

2 nd Reading : After its introduction, the Bill becomes the property of the Legislature. Therefore, the Speaker/Chairman will refer the Bill to the departmentally related Parliamentary Standing Committee which has the Member from both the Houses. The Committee will examine the Bill, takes evidence, expert advice and feed-back from the Stake-holders and make proposals of amendment. The Report of the Committee and its suggestions will be placed on the Table of the House with a copy being sent to the Ministry. The Ministry will examine the proposals and decide on the merits of the proposals. In case the Ministry has agreed to any proposal of amendment, a Notice for the official amendments so desired should be given to the Speaker/Chairman.

At the stage of 2nd Reading, the Minister will move the Motion for taking-up the Bill for consideration. At this stage, Statement of Objects and Reasons (SOR) will be discussed. Then clause-by-clause discussion starts. After clause-by-clause discussion, any amendments proposed by Private Members will be taken up. After this is voted, Schedules, Titles Table of Contents, Preamble, Enacting Formula, etc. will be discussed and voted. 2nd Reading ends here.

3 rd Reading : At the stage of 3rd Reading, the discussion is confined only to the arguments for and against the Bill. Only verbal changes are allowed and finally the Minister will move a Motion that the Bill be passed and the Bill will be put to vote.

When the Bill is passed by one House, it is sent to the other House and the same procedure will be followed in that House. As far Money Bill, Rajya Sabha can delay only for 14 days after which the Bill is deemed to have been passed by both the House of Parliament.

In the case of Ordinary Bill, both the Houses will enjoy equal powers. It can be introduced in either House and sent to the other House. The other House may pass the Bill as it is or pass with amendments or reject or take no action at all.

Contd……..68…-: 68 :-

If the other House passes the Bill in the same form, it is sent to the President for his assent. If the other House passes the Bill with amendments, it is sent back to the House of origin for reconsideration. If the House of origin agrees with the amendments, it is sent to the President for his assent. Where the House of origin does not agree with the amendments or where the Bill was rejected by the other House or where the other House did not take any action for 6 months, there is a Special Procedure in Article-108 of the Constitution for Joint Session to resolve the dispute over a Non-Money Bill.

Joint Session will be notified by President on the advice of Council of Ministers. Speaker will preside over the sittings of the Joint Session. If the Bill is passed by a majority of total Members of both the Houses of Parliament be present and voting, it is deemed to have been passed by both the Houses and sent to the President for his assent.

Joint Sessions held in earlier occasions also to pass (i) Dowry Prohibition Bill, 1960 (ii) Banking Recruitment Bill, 1977 and (iii) Prevention of Terrorists Activities Act, 2002 (POTA).

Powers/Functions of Parliament

(1) Legislative Functions

(1) Right to legislate (make Laws) is the inherent powers of any Legislature. Therefore, under Article-246 of the Constitution, Parliament can legislate on all subjects given in List-I of Schedule-VII which has 99 subjects including, Defence, Currency & Coinage, Communication, Railways, External Affairs, Banking, etc.

(2) If can also legislate on all the concurrent subjects in List-III of Schedule-VII which has 52 subjects like, Insurance, Labour, Education, Economic Planning, etc. Concurrent List is not found in any Federal Constitution. On the concurrent subjects, both Union and State Legislatures can make Laws. However, in case of any clash, Union Law will prevail over State Law unless this State Law was reserved for consideration by President and has been assented by him.

Contd…….69…-: 69 :-

Schedule-VII also has the State subjects in List-II which has 61 subjects including, Police, Law & Order, Land, Health, Sanitation, Agriculture, etc. On these subjects, any State Legislatures can make Law and Parliament cannot.

Under Article-246 of the Constitution, Parliament can make Law on all subjects including, State subjects with regard to Union Territories because, Schedule-VII divides the Powers only between Union and States.

Under Article-248, Parliament can make Law on all residuary subjects i.e. the subjects which are not available in any of the 3 Lists of Schedule-VII.

Parliament can make Law on State subjects under the special circumstances listed below :-

(1) Under Article-249, Rajya Sabha passes a Resolution by 2/3rd majority of Members sitting and voting, authorizing the Parliament to make a Law in national interest Parliament gets the authority to make Law on the given State subjects. This Resolution is valid for 1 year and can be renewed every year.

(2) Under Article-252, when 2 or more State Legislatures pass a Resolution, authorizing the Parliament to make a Law on the State subjects, Parliament get the authority to make a Law on the given subjects. The Law so make can be adopted by other States also.

(3) Under National Emergency under Article-352, Parliament can legislate on all subjects including, State subjects for the entire country.

(4) Under Article-253, Parliament can make Law on all subjects including, State subjects to implement any Treaty, Agreement made with any country or to implement a decision arrived at in any International Conference.

(5) When President’s Rule is imposed under Article-356 on any State, Union Parliament can make Law on any subjects including, State subjects with regard to that particular State.

Contd……70…

-: 70 :-

(2) Executive Functions

Under Article-75 of the Constitution, the Union Executives i.e. the Council of Ministers is collectively responsible to Lok Sabha and it continues to remain in Office only during the pleasure of Lok Sabha. In other words, the moment the Lok Sabha withdraws its pleasure bypassing “No-Confidence Motion” or Defeating “Confidence Motion”, the Council of Ministers is to resign. The administrative Policy of the Govt. is laid down by the Parliament and the activities are controlled, monitored and disciplined by Parliament. Parliament always keeps the Ministers on toes. Like, No-Confidence Motions, Adjournment Motions, Calling Attention Motions, Short-duration Discussions, Cut Motions, Half-an-hour Discussions, Starred, Unstarred and Short-Notice Questions & Zero-Hour Discussions keep the Ministers alert. Comptroller and Auditor General audits on behalf of Parliament.

(3) Financial Functions Parliament has full control over finance. Not even a pie can be withdrawn

from Consolidated Fund of India without the approval of Lok Sabha. Though the Budget is prepared by Executives, the power to sanction money lies with Parliament. The Finance Committee comprising of Public Accounts Committee, Estimates Committee and Committee on Public Undertakings function as Watch-dogs of public finance.

(4) Miscellaneous Functions

Parliament elects President, Vice-President, Impeaches and removes President, Vice-President, Judges of both Supreme Court and High Courts, CAG, Chief Election Commissioner and other Constitutional Authorities. Parliament approves emergency and Lok Sabha disapproves emergency. Parliament can create All India Services.

(5) Constituent Functions or Procedure to amend Constitution

There are 3 types of Amendments;

Contd………71…

-: 71 :-

1 st Type of Amendments are those which can be effected by Simple Majority . These are not to be treated as Amendments for the purpose of Article-368 even-though, they amend the Constitution

E.g.: Creation of a new State, change of name of a State or its territory or boundary, etc. In these cases, the Bill can be introduced in either House. After having been passed by one House by simple majority, this is referred to the other House which also passes the Bill by simple majority. After passing by both the Houses, it is presented to the President for his assent. After his assent, the Bill becomes an Act and the Constitution stands amended. Though for the purpose of Article-368, it is not an Amendment.

2 nd Type of Amendments are those which can be effected by Special Majority namely, absolute Majority + 2/3rd of Members sitting & voting. All provisions of the Constitution other than those mentioned in the 1st Category falls under this group. In this case, the Bill can be introduced in either House and should be passed by both the Houses by Special Majority and after passing, it is presented to President who shall give his assent.

3 rd Type of Amendments are those which require, in addition to passing of the Bill by both the Houses by Special Majority + ratification by a Resolution passed by Simple Majority not less than half of the States Legislatures. The amendments of the following provisions require such ratification and those are Federal Features of the Constitution :

(i) Election of President;

(ii) Extend & Scope of Executive Powers of the Union/State;

(iii) Provisions of Union & State Judiciary;

(iv) Distribution of Legislative Powers;

(v) Representation of States in Parliament;

(vi) Schedule-VII;

(vii) Article-368;

(viii) Setting up of High Courts in Union Territories.

After having been ratified by half of the States, the Bill will be presented to Parliament who shall give his assent.

Contd……72…

-: 72 :-

Supreme Court held that the Amendments Powers of the Parliament include power to amend Article-1 and also to give away National Territory to a Foreign State. 24th Amendment Act, 1921 clarifies that nothing in Article-13 shall apply to any amendment made under this Article.

42nd Amendment Act made a new proviso as given below :

“No amendment of the Constitution including, Part-III made or purported to have been made whether before or after 42nd Amendment Act, 1976 can be called in question in any Court of Law on any ground”. Supreme Court nullified this clause in Minerva Mill Case.

Similarly, Supreme Court also nullified the following proviso amended through 42nd

Amendment Act :-

“For removal of doubts, it is clarified that there is no limitation in the Constituent Power of the Union to add, delete or overhaul any part of the Constitution”.

Union Judiciary

Independence of Judiciary

(1) Judges of Supreme Court though appointed by President by an Executive Order, can be removed only after following the procedure given in the Constitution.

(2) The salary, Allowances, Secretariat expenditures, etc. of the Judges of Supreme Court are “charged” into Consolidated Fund of India.

(3) During their term of Office, the salary, allowances and conditions of service of Judges of Supreme Court cannot be varied except during grave Financial Emergency.

(4) No discussion can take place either in Parliament or in State Legislatures on the conduct of Judge of Supreme Court except, upon a Motion for his removal.

Contd…….73…

-: 73 :-

(5) Supreme Court and High Courts have the Powers to punish any person for Contempt of Court.

(6) Under Article-50, the State should take steps to separate Judiciary from Executives in public service.

(7) Parliament can only increase the Powers and Jurisdiction of the Supreme Court and cannot curtail their Powers.

(8) As per the decision of the Supreme Court, the Executive Powers to appoint the Judges of Supreme Court are very limited now. The Executive is required to consult the Chief Justice of India who will consult the other 3 Senior Judges and the recommendation of Chief Justice is binding on President.

(9) A Retired Judge of Supreme Court cannot undertake any Practice after retirement in any Court in India.

(10)The Appointment of the Officers and servants of the Supreme Court are made by Chief Justice of India or by his Nominees.

Composition of Supreme Court(30 Judges + 1 CJI)

Supreme Court comprises of 30 Judges + one Chief Justice of India.

Qualifications : (1) Citizenship (2) Judges of High Court High Courts for 5 years or more or (3) Advocates in one or more High Courts for 10 years or (4) Eminent Jurists.

Appointment : The Judges of Supreme Court are appointed by President, in consultation with such other Judges of Supreme Court & High Courts, as he deems fit. However, while appointing other Judges, he shall always consult Chief Justice of India and such other Judges of Supreme Court & High Courts.

Contd……74…

-: 74 :-

In 1993, Supreme Court laid-down strict Guidelines for appointment of Judges

(1) The Appointment of Chief Justice of India is on the basis of Seniority;

(2) The opinion of Chief Justice of India shall have a Priority in the Selection of a Candidate; Before recommending, the Chief Justice of India must consult 3 Senior-most Colleagues. The unanimous recommendation of Chief Justice of India is binding on President. Only exceptional cases and for strong reasons, the names recommended by Chief Justice of India can be ignored by President. The reasons can be :

(i) Doubtful character of the Candidate. (ii) Poor Health.(iii) Unduly short tenure.(iv) CJI’s recommendation is not unanimous.

Term of Office :

A Judge of Supreme Court shall hold office until he attains 65 years of age (going to be 68 years for which a proposal is under consideration). The Judge can resign by writing to President. Revoking or withdrawing the resignation is not possible if it becomes effective. However, if he chooses to resign from a future date, it can be withdrawn.

Removal of a Judge of Supreme Court

A Judge of the Supreme Court can be removed by a Presidential Order for proved misbehavior or incapacity. The Order can be made only after it has been addressed to both the Houses of Parliament in the same Session and the address must be passed by both the Houses by Special Majority.

Judges Enquiry Act, 1968 provides the Procedure :-

100 Members of Lok Sabhs or 50 Members of Rajya Sabha should give a Notice to Speaker/Chairman who, on receipt of the Notice, will examine the charges and appoint a Committee comprising of :

(i) 1 Serving Judge of Supreme Court + (ii) 1 Chief Justice of any High Court + (iii) 1 Distinguished Jurist.

Contd………75…

-: 75 :-

The Committee will investigate into the charges to decide the amount of guilt. During investigation, the accused Judge should be given reasonable opportunity of being heard in person. If the charge is incapacity, it would be referred to the Medical Board. The Committee will submit its Report to the Speaker/Chairman.

On the basis of the said Report, if both the Houses of Parliament pass a Resolution by Special Majority, stating that the charges have been proved, then on the basis of the said Resolution, President will issue the Order of removal of the Judge of Supreme Court.

For the 1st time, a Judge of Supreme Court Justice Ramaswamy was sought to be removed. In his case, 108 Members of Lok Sabha sponsored the Motion. The Committee consisted of Justice P.B. Sawant (Supreme Court Judge) + Justice P.D. Desai (Chief Justice of Bombay High Court) + Justice O.P. Chinnappa Reddy (Retired Judge) as Members. Parliament can act only if the Committee finds the accused Judge guilty.

In the case of Justice Ramaswamy, the Committee held that the charges are proved. However, the Motion was defeated in Lok Sabha because it could not get Absolute Majority.

Appointment of Ad-hoc Judges

Chief Justice of India may, with the prior consent of Parliament and in consultation with Chief Justice of the High Court concerned, request in Writing the attendance of a High Court Judge at the sitting of the Supreme Court as Ad-hoc Judge. This High Court Judge should have been qualified to be appointed as Judge of Supreme Court. Similarly, the Chief Justice of India may, with the prior consent of President, request any person who held the Office of Judge of Supreme Court or Judge of High Court who was qualified to be appointed as Judge of Supreme Court to sit and act as Judge of Supreme Court provided he himself is willing.

Contd…..76…

-: 76 :-

Powers of Supreme Court

I. Original Jurisdiction

The Supreme Court of India has exclusive jurisdiction on the matters of dispute between the Union & the States. It can decide any dispute involving a Question of Law or Question of Fact between Govt. of India & any other State or Govt. of India & one or more States or the States inter-se. 7 th Amendment Act, 1951 provided that the original jurisdiction of the Supreme Court does not extend to any dispute if it arises any other provisions of the Treaty or Agreement which have been entered into before the inception of the Constitution and which has been continued. The original jurisdiction shall also not extend to any dispute forbidden by the Constitution which are :

(i) the matters referred to Finance Commission (Article-280);(ii) adjustment of certain expenses between Union & the States (Article-290);(iii) inter-State water disputes.

Besides, under Article-71, the dispute relating to the Election of President and Vice-President shall be decided by the Supreme Court alone. Therefore, this is also the original jurisdiction. In addition, under Article-32, Supreme Court has but not exclusive jurisdiction in the matters relating to enforcement of Fundamental Rights by issue of Prerogative Writs. This is not exclusive because High Court under Article-226 can also issue the Writs for enforcement of Fundamental Rights.

II. Appellate Jurisdiction

Appellate jurisdiction covers Civil, Criminal & Constitutional cases already decided by High Courts.

1. Civil Cases : An appeal lies to the Supreme Court if the High Court certified that the case involves a substantial Question of Law of great importance and that the question should be decided by the Supreme Court.

2. Criminal Cases : The Supreme Court is not constituted as a general Court of criminal appeal. Instead only a limited criminal appellate jurisdiction has been given to the Supreme Court.

Contd……77…

-: 77 :-

Any criminal appeal lies to the Supreme Court in 2 ways :-

(i) without a Certificate of a High Court;(ii) with a Certificate of a High Court.

An appeal lies before the Supreme Court without a Certificate of High Court, if the High Court has, on appeal reverse an Order of Acquittal of an accused person and sentenced him to death or if the High Court has withdrawn for final before itself any case from any subordinate Court and awarded the accused with death sentence. This jurisdiction has been extended to the cases involving Life Imprisonment and Rigorous Imprisonment for not less than 10 years.

An appeal also lies to the Supreme Court if the High Court certifies that it is fit case for appeal. The High Court is required to giver this Certificate along with the Judgment either suo-moto or otherwise.

3. Constitutional Cases : An appeal lies to the Supreme Court if the High Court certifies that the case involves a substantial Question of Law as to the interpretation of the Constitution.

Special Leave Petition

Supreme Court may in its discretion grant Special Leave to appeal form any Judgment or Decree or Determination or Sentence or Order in any case or any matter passed by any Court or Tribunal within the Territory of India. However, this will not apply to any Judgment or Sentence or Order passed by any Court or Tribunal constituted under any Law relating to Armed Forces. This is a wide discretionary powers vested with the Supreme Court. There is no exception except that of Armed Forces. This power can be exercised only where there is a flagrant violation of Principles of Natural Justice.

(i) Under normal Appellate provision, an appeal can be entertained by Supreme Court only against the final Orders. But under Article-136, the word “Order” is not qualified by the adjective “Final”. Therefore, the Supreme Court can allow Special Leave even from interlocutory (interim) Orders too.

Contd……78…

-: 78 :-

(ii) Under Appellate jurisdiction, the appeal lies only against the final Orders of the High Court whereas under Article-136, Supreme Court can grant Special Leave of appeal from any Court or any Tribunal including any Subordinate Court.

(iii) Under appeal, the appeal lies only against the Judgment or Decree of any Court or Tribunal whereas under Article-136, the appeal can be against any matter or case.

Court of Record (Article-129)

Article-129 makes the Supreme Court a Court of Record i.e. a Court whose Records are admitted to be of evidentiary value and they are not to be questioned when they are produced before any Court. It is treated as Final Order provided the facts are of identical/similar nature.

A Court of Record has the power to punish anybody for its contempt. Even truth is not a defence for contempt of Court cases. Mr. Kalyan Singh, the then Chief Minister of Uttar Pradesh was punished for contempt of Court for his failure to protect and prevent the construction of a Platform in the disputed premises of Babri Masjid. He was awarded one day imprisonment and a fine of Rs.2000.

III. Advisory Jurisdiction (Article-143)

If, at any time, it appears to the President that a Question of Law or Question of Fact has arisen or likely to arise and the question is of such nature and importance, that it is expedient to take the opinion of the Supreme Court, then he may refer it to Supreme Court for consideration. The Supreme Court may, after such hearing, report its opinion to the President.

Since only advice is asked, Supreme Court is not bound to answer a reference made by the President. However, Clause-2 of Article-143 provided that the Supreme Court is bound to report to the President its opinion on matters mentioned in the proviso to Article-131 i.e. where the Original Jurisdiction of Supreme Court does not extend. In other words, matters referred to Finance Commission; inter-State water dispute; adjustment of expenses between Union & States, etc. have been excluded from the Original Jurisdiction of Supreme Court.

Contd……79…

-: 79 :-

Since President has asked only for advice, he is not bound by the advice of the Supreme Court. Nevertheless, such advice of the Supreme Court is binding on all Subordinate Courts.

President has so far asked advice of the Supreme Court on a number of issues including Kerala Education Bill, 1958, Perubari Case, 1960, UP Assembly Case, 1965, Special Court Case, 1979, Babri Masjid Case, 1993 & position of Election Commission, 1995.

IV. Review Jurisdiction (Article-137)

The Supreme Court has the power to review its own decision which is subject to :

(i) discovery of any new and important evidence;

(ii) mistake or error which is apparent on the phase of the record or for any other reason.

Centre-State Relations

The relationship between the Centre & the States can be :

(i) Legislative Relations;(ii) Administrative Relations;(iii) All India Services;(iv) Grants-in-Aid.

I. Legislative Relations

This is divided into two-fold distribution

(a) Subject matters (Powers of Parliament);(b) Territorial jurisdiction.

Territorial Jurisdiction : Subject to the provisions of the Constitution, Parliament can make Law for the whole or part of India. It has jurisdiction not only cover the subjects and their properties within India but also the subjects and their properties situated in any part of the World.

Contd…….80…

-: 80 :-

On the other hand, the State Legislatures can make Law for the whole or part of the State. Unless, the territory of the State is extended, a State-Law cannot be extended beyond the Territorial jurisdiction of the State.

II. Administrative Relations

Article-355, 256, 257, 365 & 356, in sequence, govern administrative relations.

Article-355 imposes a duty on the Union to protect the States against external aggression and internal disturbances and also to ensure that the State is run as per the provisions of the Constitution. By virtue of this Article, Union watches the States and acts by sending Para-military Forces whenever necessary.

Article-256 provides that the Executive Powers of the State will be so exercised to ensure compliance of Parliamentary Law and the Union is authorized to give directions to ensure compliance of these provisions. Supposing this provision is not there, execution of the Central Law in the States could not be possible.

Article-257 reassures what is said in Article-256. The Executive Power of the States should be exercised in such a way as not to impede (obstruct) or prejudice the Executive Power of the Union in the States. For this purpose, the Union can issue directions to the States how the Executive Powers of the State should be exercised. These powers are specific on matters relating to construction and maintenance of means of communication which are of military importance, protection of Railways, means of communication, etc.

Above 3 provisions have been provided with teeth through Article-365 which says that if any State Govt. fails to comply with any direction given by the Union in exercise of these Powers given in the Constitution, it is lawful for the President to conclude that a situation has come in which the State Govt. cannot be run in accordance with the provisions of the Constitution and the President holding that opinion, it would result in invoking Article-356 to impose President’s Rule in that State.

III. All India Services

Besides separate Services for Centre & State, Constitution provides creation of All India Services which is common to Union & the States to ensure better Centre-State relations, inter-State coordination & faithful implementation of Policies of Union.

Contd……..81…

-: 81 :-

All India Services are created by a Resolution passed by Rajya Sabha by 2/3 rd

majority of its Members sitting and voting, authorizing Parliament to create the said Service under Article-312.

IV. Grants-in-Aid

Financial resources of the States are limited. Though, they have to do a lot of work for social upliftment under the Directive Principles. To cope-up with even increasing financial needs of the States, the Central Govt. provides Grants-in-Aid for 2 purposes :-

(i) As a means of control over the State because, the Centre can always withhold the Grants of the States who do not obey their directives;

(ii) To enhance Centre-State coordination & cooperation resulting in implementation of Central Schemes in the States.

Constitutional Dignitaries or Functionaries

1. Comptroller & Auditor General (Article-148)

It is an independent Constitutional Authority who controls the financial system of the country both at the union and State level. This Office was created in 1919 on the recommendation of Munford Reforms. Govt. of India Act, 1935 equated him with the Judge of Federal Court. Our Constitution equated him with the Judge of Supreme Court. In 1976, the responsibility of CAG for compilation of accounts was given to Deptt. of Expenditure which now administers the accounts through Integrated Financial Advisers in all the Ministries.

CAG is appointed by the President and holds Office for 6 years or 65 years of age whichever is earlier. He is forbidden to accept any employment after retirement. Though, Shri Narahari Rao, Dr. Ashok Chandra & Shri T.N. Chaturvedi accepted posts under the Union after retirement as CAG. The Salary & Allowances and Secretariat expenses of CAG are Charged into the Consolidated Fund of India and these cannot be varied to his disadvantage during the term of his office.

Contd…….82…

-: 82 :-

Though he is appointed by the President, he cannot be removed by the President without following the procedure given in the Constitution. In other words, he can be removed only for proved misbehavior or incapacity after following the similar procedure stipulated for removal of a Judge of Supreme Court.

Functions :

(1) To audit the accounts of Union Govt./ State Govts./Union Territories to ensure proper expenditure from Consolidated Fund of India;

(2) To audit and report on the expenditure from Contingency Fund and Public Fund of the Union & the States;

(3) To audit and report all Trading, Manufacturing and Profit & Loss Statement kept by the Departments under the Union & the States.

(4) To audit and report of the Receipts & Expenditures of all Bodies financed by the Union or a State Govt.

(5) CAG has access to all Books of Accounts with regard to Receipts & Expenditure of the Union & the States.

Importance :

He is the Chief Auditor responsible for auditing all expenditure from the revenue of the Union & the States within and outside India. He is to ensure whether the money shown as spent was legally available, whether the money was spent for the purpose for which it was allocated by Lok Sabha, whether the expenditure confirms the authority, whether the expenditure was incurred for public purpose and whether the subordinate authorities exercised their powers as per the Rules provided in DFPR, 1978.

In brief, he not only ensures that the expenditure does not exceed the sanctioned grant but also the authority, sincerity and economy in spending the funds.

Contd……..83…

-: 83 :-

Deficiency :

Those CAG is Comptroller and Auditor General, he only functions as Auditor General only after the expenditure is incurred. He has no control over issue of money from Consolidated Fund of India because many Deptts. have been authorized to draw money by issuing Cheques without any authority from CAG who is involved only at the audit stage i.e. after the damage is done.

Besides, the receipts from Income Tax, Wealth Tax, Estate Duty, Excise Duty & Land Revenues have been excluded from the scope of audit.

2. Election Commissioner (Article-324)

Article-324 provides for creation of Election Commissioner to supervise, direct and control over holding elections. Election Commissioner is an independent Constitutional Plural Body. It is to have Chief Election Commissioner (CEC) as Chairman & such other number of Election Commissioners as the President determines. In October, 1989, 2 Election Commissioners were appointed to cope- up with the additional work consequent upon the reduction of voting age from 21 to 18 years. However, their appointments were subsequently revoked.

In August, 193, again 2 Election Commissioners were appointed. At present, the Election Commission has 1 Chief Election Commissioner as Chairman & 2 Election Commissioners as Members.

The Salary & Allowances of CEC & Election Commissioners are Charged into Consolidated Fund of India. Their service conditions cannot be varied to their disadvantage during their term of their offices. The CEC & Election Commissioners hold their Office for 6 years or 65 years of age whichever is earlier.

Chief Election Commissioner can be removed only for proved misbehavior or incapacity after following the similar procedure stipulated for the removal of a Judge of Supreme Court or High Courts. However, Election Commissioners can be removed by the President on the recommendation of Chief Election Commissioner. In other words, Parliament is not involved in the process of his removal from office.

Contd……..84…

-: 84 :-

Functions of CEC:

(1) Supervision, direction and control of all matters pertaining to the elections of the President, Vice-President, Members of Parliament & MLAs;

(2) Preparation and revision of Electoral Rolls for General Elections of Parliament or State Legislatures;

(3) To advise the President or Governor with regard to the question of disqualification incurred by Members of Parliament or State Legislatures;

(4) Exemption of persons from disqualification imposed by Judiciary;

(5) Appointments of Election Officers for enquiry into the disputes connected with election arrangements;

(6) Settlement of disputes regarding allocation of Election Symbols;

(7) Allotment of Broadcast/Telecast Slots for election broadcast too different Political Parties;

(8) To determine Code of Conduct for Political Parties;

(9) To arrange Staff from the Union & the State Govts. for conducting elections;

(10) To review the Representation of Peoples Act & introduce Electoral Reforms;

(11) To determine Territorial Areas of Constituencies after Delimitation Commission Recommendations;

(12) To advise the President whether elections can be held in a State which is under President’s Rule.

Contd…….85…

-: 85 :-

3. Attorney-General (Article-61)

Attorney-General of India is a part of Union Executives. He is the Chief Law Officer and Legal Adviser. He has the right of audience in all the Courts in the Territory of India. He represents India in International Court. It is the duty of Attorney-General to advise Govt. of India upon all the legal matters. He can participate in the discussion in either House of Parliament or State Assemblies.

He should be qualified to be a Judge of Supreme Court. However, while a distinguished Jurist can be appointed as a Judge of Supreme Court, he cannot be appointed as Attorney-General. His tenure is co-terminus with the Council of Ministers. Therefore, whenever there is a change of incumbency in the Council of Ministers, he should resign. He is not a Govt. servant and is not a whole-time Counsel/Advocate for Govt. In other words, he can carry on private practice but, he cannot plead against the Government.

4. Chairman, Union Public Service Commission (Article-315)

Article-315 provides for UPSC comprising at present a Chairman and 9 Members appointed by the President. Half of the Members should have held office in the Union or State Governments.

Chairman & Members of UPSC can hold their Offices for 6 years or 65 years of age whichever is earlier. A Member is not eligible for re-appointment. However, he can be appointed as Chairman.

Chairman or Member can be removed by the President on the grounds of proved misbehavior or incapacity. They can be removed only after the enquiry and recommendation for removal by Supreme Court on a reference made by the President. Pending enquiry, President can suspend a Member or Chairman. The Chairman or Member will be guilty of misbehavior if he becomes interested in any Govt. Contracts or Agreement or any monetary profit.

President can also remove the Members or Chairman by an Order if he is adjudged as insolvent or engages himself in any paid employment or if he is suffering from any mental or physical inability.

Contd……86…

-: 86 :-

Functions

The jurisdiction of UPSC extends to the Union and centrally administered areas. If required by 2 or more States, UPSC can assist them in operating Joint Recruitment of Staff. Similarly, at the request of the Govt. of the State and with the approval of the President, UPSC can serve any other State. Parliament can also give additional functions to UPSC. However, UPSC cannot, on its own, take additional functions.

In addition to the above normal functions, UPSC has to conduct examinations for recruitment to various services of the Union Govt. either through written examinations or through interviews or both. Such examinations are for All India Services, Indian Civil Services, National Defence Academy, SCRA, Indian Economic Service, Indian Statistical Service, Indian Engineering Service, etc.

UPSC has to be consulted by the executives on all matters relating to recruitment of Members to Civil Services and also Civil Posts, Principles to be followed in making appointments, promotion, transfers from one post to another, suitability norms, Disciplinary matters including Memorials & Petitions, grant of extra-ordinary Pension, grant of financial assistance for legal proceedings, etc. The advice of the UPSC is not binding on the executives. However, where there is a difference of opinion between UPSC and Disciplinary Authority, such cases are referred to Deptt. of Personnel headed by the Prime Minister which has also the Administrative Ministry for UPSC for decision.

Deficiency

Proviso to Article-321 dilutes the impact of UPSC. President can make regulations, specifying the matter on which UPSC consultation is not necessary. This proviso has been liberally used – rather misused by various Governments. As a result, the following have been excluded from the purview of UPSC :-

(1) Reservation of appointments for SC/ST/OBC;

(2) Chairman & Members of various Commissions & Tribunals;

(3) Appointment of Diplomats;

(4) Appointments of majority of Group ‘C’ & Group ‘D’ posts (90% of staff);

(5) All temporary posts less than 1 year.

Contd……87…

-: 87 :-

However, the copies of the regulations so made by the executives are to be placed on the Table of the House. This is the only safeguard against possible misuse. In addition, the instances where the executives did not follow the advice of UPSC have to be incorporated in the Annual Report of UPSC for being placed before both the Houses and the Members of Parliament will have an opportunity to discuss the issue of the reasons for not accepting the advice of UPSC.

Special Status of Jammu & Kashmir (Article-370)

Only 2 Articles of Indian Constitution apply to J&K, Article-1 & Article-370. J&K is a unique State in the sense, it has a separate Constitution and J&K citizens enjoy dual citizenship namely J&K Citizenship & Indian Citizenship.

Article-370 provides a special status to J&K. This is because of a commitment made by Govt. of India with the erstwhile Rulers of J&K at the time of accession. Like India, J&K was also under British control and got independence on 15 th August, 1947. Soon thereafter, J&K was attacked by Pakistan invaders supported by Pakistan Army. To save himself from the attack, Maharaja Hari Singh decided to accede to India and Instrument of Accession was signed on 26th October, 1947 and as a result, J&K became a part of Indian Union. However, India accepted the accession subject to the Ratification of the proposal by Constituent Assembly of J&K. Still the Constituent approves the accession and interim arrangement was made through Article-370.

The Legislative Authority of parliament over J&K was confined only to those subjects included in the Instrument of Accession i.e. External Affairs, Defence and Communication. In June, 1952, there was an Agreement between Pt. Jawaharlal Nehru & Sheikh Abdullah. This Agreement was ratified by the Constituent Assembly of J&K in October, 1954. As a result of this, the power of Union Parliament was extended to all Union subjects.

In 1954, the Constituent Assembly of J&K abolished the Rule of maharaja and approved the accession of J&K with India. The Constitution of J&K is difference from Indian Constitution in a large number of areas.

Contd……..88…

-: 88 :-

The important provisions of J&K Constitution are as under :-

(1) J&K is an integral part of India; The Territory of the State comprises of all the territories which were under the Kindgom of Maharaja Hari Singh at the time of independence.

(2) The State Legislature consists of Governor & 2 Houses namely, Legislative Assembly and Legislative Council.

(3) Legislative Assembly consists of 100 Members and Legislative Council consists of 36 Members.

(4) Out of 100 Members of the Legislative Assembly, 25 seats are reserved for Pakistan Occupied Kashmir + 2 Women Members nominated by Governor.

(5) High Court J&K comprises of 1 Chief Justice & 2 Judges. Official language is Urdu but English continues as a Link Language.

(6) All Executive & Legislative Powers of J&K will extend to all matters except those on which Parliament of India has Power to make Law for the State.

(7) All Residuary Subjects belong to the State in which if the State is affected, Parliament cannot make any Law without its consent.

(8) Directive Principles of J&K aims to establish Socialistic Pattern of Society and Preventive Detention Law is not applicable to J&K.

(9) Right to Property still remains only in J&K which means only J&K citizens have the right to purchase a property in J&K. This is because when British Govt. tried to settle down Punjabi Muslims in J&K to control Pandit Sabha of Hindus, Dr. Hari Singh, the then Hindu Ruler passed a Law giving property right exclusively to the citizens of J&K.

(10) If Article-370 is to be deleted from the Constitution, President has to promulgate a Regulation which will be placed on the Table of the House. This Regulation can be promulgated only on the recommendation of J&K Constituent Assembly.

-oOo-