Indian Polity

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INDIAN INDIAN INDIAN INDIAN INDIAN POLITYPOLITYPOLITYPOLITYPOLITY

(P(P(P(P(Pararararart-II)t-II)t-II)t-II)t-II)

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CONTENTS

JUDICIARY .................................................................................................................................. 5

RULE OF LAW.......................................................................................................................... 13

JUDICIAL REVIEW.................................................................................................................... 14

JUDICIARY VS. LEGISLATURE................................................................................................ 16

PANCHAYAT & MUNICIPALITIES .............................................................................................. 17

ELECTORAL SYSTEM AND ITS REFORM ............................................................................. 27

CENTRAL AND STATE PUBLIC SERVICE COMMISSION..................................................... 33

EMERGENCY PROVISIONS.................................................................................................... 37

OFFICIAL LANGUAGE .............................................................................................................. 39

IMPORTANT COMMISSIONS ................................................................................................... 41

TRIBUNALS .............................................................................................................................. 49

COUNCILS................................................................................................................................ 49

CONSTITUTIONAL AMENDMENT ............................................................................................ 50

MISCELLANEOUS TOPICS ..................................................................................................... 56


INDIAN POLITY

(b) has been for at least ten years anadvocate of a High Court or of two ormore such Courts in succession; or

(c) is, in the opinion of the President, adistinguished jurist.

(4) Parliament may by law regulate the pro-cedure for the presentation of an addressand for the investigation and proof of themisbehaviour or incapacity of a Judgeunder clause (4).

(5) Every person appointed to be a Judge ofthe Supreme Court shall, before he entersupon his office, make and subscribe beforethe President, or some person appointed inthat behalf by him, an oath or affirmationaccording to the form set out for thepurpose in the Third Schedule.

(6) No person who has held office as a Judgeof the Supreme Court shall plead or act inany court or before any authority withinthe territory of India.

Article 125:Salaries, etc., of Judges.(1) There shall be paid to the Judges of the

Supreme Court such salaries as may bedetermined by Parliament by law and,until provision in that behalf is so made,such salaries as are specified in the SecondSchedule.]

(2) Every Judge shall be entitled to such privi-leges and allowances and to such rights inrespect of leave of absence and pension asmay from time to time be determined byor under law made by Parliament and,until so determined, to such privileges,allowances and rights as are specified inthe Second Schedule:

Provided that neither the privileges nor theallowances of a Judge nor his rights in respect ofleave of absence or pension shall be varied to hisdisadvantage after his appointment.

JUDICIARY

The Supreme CourtThe Constitution of India has the following

provisions regarding the Supreme Court of India:

Article 124:Establishment and constitution of SupremeCourt.(1) There shall be a Supreme Court of India

consisting of a Chief Justice of India and,until Parliament by law prescribes a largernumber, of not more than seven.

(2) Every Judge of the Supreme Court shall beappointed by the President by warrantunder his hand and seal after consultationwith such of the Judges of the SupremeCourt and of the High Courts in the Statesas the President may deem necessary forthe purpose and shall hold office until heattains the age of sixty-five years:Provided that in the case of appointmentof a Judge other than the Chief Justice, theChief Justice of India shall always beconsulted. Provided further that(a) a Judge may, by writing under his hand

addressed to the President, resign hisoffice;

(b) a Judge may be removed from his officein the manner provided in clause (4).

The age of a Judge of the Supreme Court shallbe determined by such authority and in suchmanner as Parliament may by law provide.(3) A person shall not be qualified for ap-

pointment as a Judge of the SupremeCourt unless he is a citizen of India and-(a) has been for at least five years a Judge

of a High Court or of two or moresuch Courts in succession; or

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Article 126:Appointment of acting Chief Justice.

When the office of Chief Justice of India isvacant or when the Chief Justice is, by reason ofabsence or otherwise, unable to perform the dutiesof his office, the duties of the office shall beperformed by such one of the other Judges of theCourt as the President may appoint for thepurpose.

Article 127:Appointment of ad hoc Judges.(1) If at any time there should not be a

quorum of the Judges of the SupremeCourt available to hold or continue anysession of the Court, the Chief Justice ofIndia may, with the previous consent ofthe President and after consultation withthe Chief Justice of the High Court con-cerned, request in writing the attendanceat the sittings of the Court, as an ad hocJudge, for such period as may be neces-sary, of a Judge of a High Court dulyqualified for appointment as a Judge of theSupreme Court to be designated by theChief Justice of India.

(2) It shall be the duty of the Judge who hasbeen so designated, in priority to otherduties of his office, to attend the sittings ofthe Supreme Court at the time and for theperiod for which his attendance is re-quired, and while so attending he shallhave all the jurisdiction, powers and privi-leges, and shall discharge the duties, of aJudge of the Supreme Court.

Article 128:Attendance of retired Judges at sittings of theSupreme Court.

Notwithstanding anything in this Chapter,the Chief Justice of India may at any time, withthe previous consent of the President, request anyperson who has held the office of a Judge of theSupreme Court or of the Federal Court 2[or whohas held the office of a Judge of a High Court andis duly qualified for appointment as a Judge of theSupreme Court] to sit and act as a Judge of theSupreme Court, and every such person so requested

shall, while so sitting and acting, be entitled tosuch allowances as the President may by orderdetermine and have all the jurisdiction, powersand privileges of, but shall not otherwise bedeemed to be, a Judge of that Court:

Provided that nothing in this article shall bedeemed to require any such person as aforesaidto sit and act as a Judge of that Court unless heconsents so to do.

Article 129:Supreme Court to be a court of record.

The Supreme Court shall be a court of recordand shall have all the powers of such a courtincluding the power to punish for contempt ofitself.

Article 130:Seat of Supreme Court.

The Supreme Court shall sit in Delhi or in suchother place or places, as the Chief Justice of Indiamay, with the approval of the President, from timeto time, appoint.

Article 131:Original jurisdiction of the Supreme Court.

Subject to the provisions of this Constitution,the Supreme Court shall, to the exclusion of anyother court, have original jurisdiction in anydispute-(a) between the Government of India and one

or more States; or(b) between the Government of India and any

State or States on one side and one or moreother States on the other; or

(c) between two or more States, if and in so faras the dispute involves any question (whetherof law or fact) on which the existence orextent of a legal right depends:Provided that the said jurisdiction shall not

extend to a dispute arising out of any treaty,agreement, covenant, engagement, sanad or othersimilar instrument which, having been enteredinto or executed before the commencement of thisConstitution, continues in operation after suchcommencement, or which provides that the saidjurisdiction shall not extend to such a dispute.


Article 132Appellate jurisdiction of Supreme Court in appealsfrom High Courts in certain cases.(1) An appeal shall lie to the Supreme Court

from any judgment, decree or final orderof a High Court in the territory of India,whether in a civil, criminal or other pro-ceeding, if the High Court certifies underarticle 134A that the case involves a sub-stantial question of law as to the interpre-tation of this Constitution.

(3) Where such a certificate is given, anyparty in the case may appeal to the Su-preme Court on the ground that any suchquestion as aforesaid has been wronglydecided.

Explanation.- For the purposes of this article,the expression "final order" includes an orderdeciding an issue which, if decided in favour ofthe appellant, would be sufficient for the finaldisposal of the case.

Article 133:Appellate jurisdiction of Supreme Court in appealsfrom High Courts in regard to civil matters.-(1) An appeal shall lie to the Supreme Court

from any judgment, decree or final orderin a civil proceeding of a High Court in theterritory of India 7 [if the High Courtcertifies under article 134A.(a) that the case involves a substantial

question of law of general importance;and

(b) that in the opinion of the High Courtthe said question needs to be decidedby the Supreme Court.

(2) Notwithstanding anything in article 132,any party appealing to the Supreme Courtunder clause (1) may urge as one of thegrounds in such appeal that a substantialquestion of law as to the interpretation ofthis Constitution has been wrongly de-cided.

(3) Notwithstanding anything in this article,no appeal shall, unless Parliament by lawotherwise provides, lie to the SupremeCourt from the judgment, decree or finalorder of one Judge of a High Court.

Article 134:Appellate jurisdiction of Supreme Court in regardto criminal matters.(1) An appeal shall lie to the Supreme Court

from any judgment, final order or sen-tence in a criminal proceeding of a HighCourt in the territory of India if the HighCourt-(a) has on appeal reversed an order of

acquittal of an accused person andsentenced him to death; or

(b) has withdrawn for trial before itself anycase from any court subordinate to itsauthority and has in such trial convictedthe accused person and sentenced himto death; or

(c) 8[certifies under article 134A] that thecase is a fit one for appeal to theSupreme Court:

Provided that an appeal under sub-clause (c)shall lie subject to such provisions as may be madein that behalf under clause(1) of article 145 and to such conditions as the

High Court may establish or require.(2) Parliament may by law confer on the

Supreme Court any further powers to en-tertain and hear appeals from any judg-ment, final order or sentence in a criminalproceeding of a High Court in the territoryof India subject to such conditions andlimitations as may be specified in such law.

Article 135:Jurisdiction and powers of the Federal Courtunder existing law to be exercisable by theSupreme Court.-

Until Parliament by law otherwise provides,the Supreme Court shall also have jurisdiction andpowers with respect to any matter to which theprovisions of article 133 or article 134 do not applyif jurisdiction and powers in relation to that matterwere exercisable by the Federal Court immediatelybefore the commencement of this Constitutionunder any existing law.

Article 136:Special leave to appeal by the Supreme Court.(1) Notwithstanding anything in this Chap-

ter, the Supreme Court may, in its discre-


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tion, grant special leave to appeal fromany judgment, decree, determination, sen-tence or order in any cause or matterpassed or made by any court or tribunalin the territory of India.

(2) Nothing in clause (1) shall apply to anyjudgment, determination, sentence or or-der passed or made by any court or tribu-nal constituted by or under any law relat-ing to the Armed Forces.

Article 137:Review of judgments or orders by the SupremeCourt.

Subject to the provisions of any law made byParliament or any rules made under article 145,the Supreme Court shall have power to reviewany judgment pronounced or order made by it.

Article 138:Enlargement of the jurisdiction of the SupremeCourt.(1) The Supreme Court shall have such fur-

ther jurisdiction and powers with respectto any of the matters in the Union List asParliament may by law confer.

(2) The Supreme Court shall have such fur-ther jurisdiction and powers with respectto any matter as the Government of Indiaand the Government of any State may byspecial agreement confer, if Parliament bylaw provides for the exercise of such juris-diction and powers by the Supreme Court.

Article 139:Conferment on the Supreme Court of powers toissue certain writs.

Parliament may by law confer on the SupremeCourt power to issue directions, orders or writs,including writs in the nature of habeas corpus,mandamus, prohibition, quo warranto andcertiorari, or any of them, for any purposes otherthan those mentioned in clause (2) of article 32.

Article 140:Ancillary powers of Supreme Court.

Parliament may by law make provision forconferring upon the Supreme Court suchsupplemental powers not inconsistent with any of

the provisions of this Constitution as may appearto be necessary or desirable for the purpose ofenabling the Court more effectively to exercise thejurisdiction conferred upon it by or under thisConstitution.

Article 141:Law declared by Supreme Court to be bindingon all courts.

The law declared by the Supreme Court shallbe binding on all courts within the territory ofIndia.

Article 142:Enforcement of decrees and orders of SupremeCourt and orders as to discovery, etc.(1) The Supreme Court in the exercise of its

jurisdiction may pass such decree or makesuch order as is necessary for doing com-plete justice in any cause or matter pend-ing before it, and any decree so passed ororder so made shall be enforceable through-out the territory of India in such manneras may be prescribed by or under any lawmade by Parliament and, until provisionin that behalf is so made, in such manneras the President may by order1 prescribe.

(2) Subject to the provisions of any law madein this behalf by Parliament, the SupremeCourt shall, as respects the whole of theterritory of India, have all and every powerto make any order for the purpose ofsecuring the attendance of any person, thediscovery or production of any documents,or the investigation or punishment of anycontempt of itself.

Article 143:Power of President to consult Supreme Court.(1) If at any time it appears to the President

that a question of law or fact has arisen,or is likely to arise, which is of such anature and of such public importance thatit is expedient to obtain the opinion of theSupreme Court upon it, he may refer thequestion to that Court for considerationand the Court may, after such hearing asit thinks fit, report to the President.


(2) The President may, notwithstanding any-thing in the proviso to article 131, refer adispute of the kind mentioned in the 3[saidproviso] to the Supreme Court for opinionand the Supreme Court shall, after suchhearing as it thinks fit, report to the Presi-dent its opinion thereon.

Article 144:Civil and judicial authorities to act in aid of theSupreme Court.

All authorities, civil and judicial, in the territoryof India shall act in aid of the Supreme Court.

Article 145:Rules of Court, etc.(1) Subject to the provisions of any law made

by Parliament, the Supreme Court mayfrom time to time, with the approval of thePresident, make rules for regulating gen-erally the practice and procedure of theCourt including(a) rules as to the persons practising before

the Court;(b) rules as to the procedure for hearing

appeals and other matters pertaining toappeals including the time within whichappeals to the Court are to be entered;

(c) rules as to the proceedings in the Courtfor the enforcement of any of the rightsconferred by Part III;

(d) rules as to the entertainment of appealsunder sub-clause (c) of clause (1) ofarticle 134;

(e) rules as to the conditions subject towhich any judgment pronounced ororder made by the Court may bereviewed and the procedure for suchreview including the time within whichapplications to the Court for such revieware to be entered;

(f) rules as to the costs of and incidental toany proceedings in the Court and as tothe fees to be charged in respect ofproceedings therein;

(g) rules as to the granting of bail;(h) rules as to stay of proceedings;

(i) rules providing for the summarydetermination of any appeal whichappears to the Court to be frivolous orvexatious or brought for the purpose ofdelay;

(j) rules as to the procedure for inquiriesreferred to in clause (1) of article 317.

(2) Subject to the rules made under this articlemay fix the minimum number of Judgeswho are to sit for any purpose, and mayprovide for the powers of single Judgesand Division Courts.

(3) The minimum number of Judges who areto sit for the purpose of deciding any caseinvolving a substantial question of law asto the interpretation of this Constitution orfor the purpose of hearing any referenceunder article 143 shall be five:

Provided that, where the Court hearing anappeal under any of the provisions of this Chapterother than article 132 consists of less than fiveJudges and in the course of the hearing of theappeal the Court is satisfied that the appealinvolves a substantial question of law as to theinterpretation of this Constitution thedetermination of which is necessary for the disposalof the appeal, such Court shall refer the questionfor opinion to a Court constituted as required bythis clause for the purpose of deciding any caseinvolving such a question and shall on receipt ofthe opinion dispose of the appeal in conformitywith such opinion.(4) No judgment shall be delivered by the

Supreme Court save in open Court, andno report shall be made under article 143save in accordance with an opinion alsodelivered in open Court.

(5) No judgment and no such opinion shall bedelivered by the Supreme Court save withthe concurrence of a majority of the Judgespresent at the hearing of the case, butnothing in this clause shall be deemed toprevent a Judge who does not concur fromdelivering a dissenting judgment or opin-ion.

Article 146:Officers and servants and the expenses of theSupreme Court.(1) Appointments of officers and servants of

the Supreme Court shall be made by the


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Chief Justice of India or such other Judgeor officer of the Court as he may direct:

Provided that the President may by rule requirethat in such cases as may be specified in the rule,no person not already attached to the Court shallbe appointed to any office connected with theCourt, save after consultation with the UnionPublic Service Commission.(2) Subject to the provisions of any law made

by Parliament, the conditions of service ofofficers and servants of the Supreme Courtshall be such as may be prescribed by rulesmade by the Chief Justice of India or bysome other Judge or officer of the Courtauthorised by the Chief Justice of India tomake rules for the purpose:

Provided that the rules made under thisclause shall, so far as they relate to salaries,

allowances, leave or pensions, require theapproval of the President.(3) The administrative expenses of the Su-

preme Court, including all salaries, allow-ances and pensions payable to or in re-spect of the officers and servants of theCourt, shall be charged upon the Consoli-dated Fund of India, and any fees or othermoneys taken by the Court shall form partof that Fund.

High CourtsIn each state there is a High Court, which

exercises powers within the territorial jurisdictionof the state concerned. A High Court consists ofa Chief Justice and such other judges as thePresident may, from time to time, determine.Since the number of the judges of the State High

THE FOLLOWING ARE THE TWENTY-ONE HIGH COURTS SORTED BY NAME, YEAR OFESTABLISHMENT, JURISDICTION, PRINCIPAL SEAT (HEADQUARTERS) AND BENCHES.

Court name Established Jurisdiction Seat BenchesAllahabad High Court 1866 Uttar Pradesh Allahabad LucknowAndhra Pradesh High Court 1954 Andhra Pradesh HyderabadBombay High Court 1862 Maharashtra, Goa, Dadra and Nagar Mumbai Nagpur,

Haveli, Daman and Diu Panaji,Aurangabad

Calcutta High Court 1862 West Bengal, Andaman and Nicobar Calcutta Port BlairIslands (circuit bench)

Chhattisgarh High Court 2000 Chhattisgarh BilaspurDelhi High Court 1966 National Capital Territory of Delhi New DelhiGauhati High Court 1948 Arunachal Pradesh, Assam, Manipur, Guwahati Kohima, Aizwal &

Meghalaya, Nagaland, Tripura, Mizoram Imphal. Circuit Benchat Agartala & Shillong

Gujarat High Court 1960 Gujarat AhmedabadHimachal Pradesh High Court 1971 Himachal Pradesh ShimlaJammu and Kashmir High Court 1943 Jammu & Kashmir Srinagar & JammuJharkhand High Court 2000 Jharkhand RanchiKarnataka High Court 1884 Karnataka Bangalore Circuit Benches at

Hubli-Dharwad &Gulbarga

Kerala High Court 1956 Kerala, Lakshadweep KochiMadhya Pradesh High Court 1936 Madhya Pradesh Jabalpur Gwalior, IndoreMadras High Court 1862 Tamil Nadu, Pondicherry Chennai MaduraiOrissa High Court 1948 Orissa CuttackPatna High Court 1916 Bihar PatnaPunjab and Haryana High Court 1947 Punjab, Haryana, Chandigarh ChandigarhRajasthan High Court 1949 Rajasthan Jodhpur, JaipurSikkim High Court 1975 Sikkim GangtokUttaranchal High Court 2000 Uttarakhand Nainital


courts has not been fixed by the constitution, itvaries from court to court. Appointments of thejudges of the High Court shall be made by thePresident by warrant under his hand and seal.The President consults the Chief Justice of Indiaand the Governor of the state and the Chief Justiceof the High Court concerned in making theappointment. In case, of the appointment of theChief Justice of the High Court, the President willconsult the Chief Justice of India and the Governorof the state concerned.

Qualifications and Conditions of ServiceA person shall not be qualified for appointment

as a judge of High court unless he is a citizen ofIndia and has either held for at least ten years ajudicial office in the territory of India or has forat least ten years been an advocate of a High courtin any state. The salary allowance and otheramenities enjoyed by the judges of High Courtscannot be modified to their disadvantage duringtheir tenure of office. However, the President isauthorised to reduce their salaries during theproclamation of financial emergency. As thesalaries and other expenses of the judges and themaintenance of state High Courts are charged tothe Consolidated Fund of the state, they are tosubject to the vote of the state legislature.

A judge shall hold office till he attains the ageof sixty two years. However, he may resign hisoffice by writing to the President. He can beremoved from his office by the President, in themanner provided for the removal of a judge ofthe Supreme Court. A judge can be removed fromhis office before the expiry of his term on groundsof proved misbehaviour or incapacity. However,such an action can be taken by the President onlyif both the House of Parliament pass a resolutionby a two thirds majority of the members presentin each House which should also be the majorityof the total membership of the House.

How a Judge of the Supreme Court orHigh Courts can be removed?

A complex procedure for removal of judges isusually laid down in the constitution. The framersof Indian Constitution were conscious of the valueof an independent judiciary and made elaborateprovisions to secure the same.

Article 124 of the Constitution provides for the

establishment and Constitution of the SupremeCourt of India. The article lays down that theSupreme Court shall consist of Chief Justice ofIndia and not more than such number of judgesas Parliament may by law prescribe. It furtherprovides that every judge shall be appointed bythe President by warrant under his hand and sealafter consultation with such of the judges of theSupreme Court and of the High courts in theStates as the President may deem necessary forthe purpose and shall hold office until he attainsthe age of 65 years. The Supreme Court judge mayresign his office by writing in his hand addressedto the President. Clause (4) of article 124 providesthat a judge of Supreme court shall not beremoved from his office except by an order of thePresident passed after an address by each Houseof Parliament supported by a majority off totalmembership of that House and by a majority ofnot less than two-third of the Members of thatHouse present and voting presented to thePresident in the same session for such removal onthe ground of proved misbehaviour or incapacity.Provision to article 217(1) and article 218 indicatethat provisions of clauses (4) and (5) of article 124equally apply for the removal of a judge of theHigh Court.

Clause (5) of article 124 empowers Parliamentto regulate the procedure for the presentation ofan address and for the investigation and proof ofthe misbehaviour or incapacity of a judge by law.A suggestion in the Constituent Assembly that thematter may first be investigated by a judicialcommittee was rejected. Article 124 is an attemptto make the judiciary totally independent of theexecutive or legislature so that the judiciary canadjudicate constitutional and legal questionsfearlessly and impartially.

Jurisdiction of High CourtThe High Court of a state enjoys the following

powers:-

1. Original: The original criminal jurisdic-tion of the High Court has been completelytaken away by the criminal procedureCode, 1973. The original civil jurisdictionhas been retained by the courts in respectof actions of higher value.


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2. Appellate: The appellate jurisdiction ofthe High Court is both civil and criminal.Appeals from the decisions of the DistrictJudges and from those of SubordinateJudge in case of a higher value, lie directto the High Court. On questions of fact aswell as law when any court subordinateto the High Court decides an appeal fromthe decision of an inferior court, a secondappeal lies to the High Court from thedecisions of the lower appellate court butonly on question of law and procedure.The criminal appellate jurisdiction of theHigh Court extends to appeals from thedecisions of a Sessions Judge or an Addi-tional Sessions Judge, where the sentenceof imprisonment exceeds seven years andfrom the decisions of an Assistant SessionJudge.

3. Power of Superintendence: According toArticle 227, every High Court has thepower of superintendence over all courtsand tribunals, except those dealing withthe armed forces functioning with its ter-ritorial jurisdiction. Interpreting the scopeof this power, the Supreme Court said thatall types of tribunals including the electiontribunals operating within a state are sub-ject to the superintendence of the HighCourts and further, that the "superinten-dence is both judicial and administrative.

4. Control over Subordinate Court: As thehead of the judiciary in the state, the HighCourt has got an administrative controlover the subordinate judiciary in the statein respect of certain matters, besides itsappellate and supervisory jurisdiction overthem. Article 228 empowers the HighCourt to transfer constitutional cases fromlower courts. Thus, if the Court is satisfiedthat a case pending in one of its subordi-nate courts involves a substantial questionof law as to the interpretation of theconstitution, the determination of which isnecessary for the disposal of the case, itshall then withdraw the case and mayeither dispose of the case itself or deter-mine the constitutional question and thensend the case back to the court where fromit was withdrawn.

5. The Writ Jurisdiction of High Court:Every High Court shall have powerthroughout the territories in relation towhich it exercises jurisdiction to issue toany person or authority including theGovernment within those territories, or-ders or writs including writs in the natureof habeas corpus, mandamus, prohibition,quo warranto and certiorari or any ofthem for enforcement of the fundamentalrights guaranteed by the constitution, andfor any other purposes (Article 226). Thepower may also be exercised by any HighCourt exercising jurisdiction in relation tothe territories within which the cause ofaction, wholly or in part, arises for theexercise of such power, notwithstandingthat the seat of such government or au-thority or the residence of such person isnot within those territories.

6. Power of Appointment: According toArticle 229, the Chief Justice of the HighCourt, is empowered to appoint officersand servants of the Court. The Governormay in this respect require the Court toconsult the Public Service Commission ofthe state. He also consults the High Courtin the appointment, posting, and promo-tion of district judges and along with thestate Public Service Commission in ap-pointing person to the judicial service ofthe state. The Chief Justice is alsoauthorised to regulate the conditions ofservice of the staff subject to any law madeby the state legislature in this respect. Thepower of the Chief Justice to appoint anymember of the staff of the High Court alsoincludes his power to dismiss any suchmember form the service of the court. Thepowers of posting and promotions andgrant of leave to persons belonging to thejudicial service is also vested in the HighCourt. The constitution also provides forcharging all the administrative expenses ofthe High Court on the Consolidated Fundsof the State.

Subordinate CourtsAs mentioned earlier, the judiciary of a state

consists of a high court and a hierarchy of


subordinate courts, also known as lower courts.The subordinate courts are so called because oftheir subordinate to the state high court. Theyfunction below and under the high court atdistrict and lower levels.

Articles 233 to 237 in Part VI of the Constitutionmake the following provisions to regulate theorganisation of subordinate courts and to ensuretheir independence from the executive.

1. Appointment of District Judges

The appointment, positing and promotion ofdistrict judges in a state are made by the governorof the state in consultation with the high court.

A person to be appointed as district judgeshould have the following qualifications:(a) He should not already be in the service of the

Central or the state government.(b) He should have been an advocate or a

pleader for seven years.(c) He should be recommended by the high

court for appointment.The expression 'district judge' includes judge

of a city civil court, additional district judge, jointdistrict judge, assistant district judge, chief judgeof a small cause court, chief presidency magistrate,additional chief presidency magistrate, sessionsjudge, additional sessions judge and assistantsessions judge.

2. Appointment of other Judges

Appointment of person (other than districtjudges) to the judicial service of a state are madeby the governor of the state after consultation withthe State Public Service Commission and the highcourt.

The expression 'judicial service' means a serviceconsisting exclusively of persons intended to fillthe post of district judge and other civil judicialposts inferior to the post of district judge.

3. Control over Subordinate Courts

The control over district courts and othersubordinate courts including the posting,promotion and leave of person belonging to thejudicial service of a state and holding any postinferior to the post of district judge is vested in thecourt. This control is vested in the high court to

secure the independence of the subordinatejudiciary.

The Constitution also empowers the governorto apply the above provisions regardingsubordinate courts to any class or classes ofmagistrate in the state.

RULE OF LAW

The Rule of Law- is a basic requirement for ademocratic government. And for the maintenanceof rule of law, there must be an independent andimpartial judiciary. It is embodied in the conceptof rule of law that equality before the law or equalprotection of the laws is ensured to all citizens,and every citizen is protected from arbitraryexercise of power by the State. Thus in a stateprofessing the rule of law, the aim should be toprovide for a system which secures to its citizensadequate procedure for the redress of theirgrievances against the state before forums whichare able to administer justice in an impartialmanner without any fear or favour.

Rule of Law in IndiaEach country has devised its own system to

ensure the maintenance of the rule of law. TheIndian Constitution embodies the modern conceptof the rule of law with the establishment of ajudicial system which should be able to workimpartially and free from all influences. The ruleof law pervades over the entire field ofadministration and every organ of the State isregulated by the rule of law. The concept of therule of law would lose its vitality if theinstrumentalities of the state are not charged withthe duty of discharging their function in a fair andjust manner. It has been held that the rule of lawpervades the Constitution as its basic feature andcannot be taken away even by an amendment ofthe Constitution.

Constitutional Provisions for Rule of LawFundamental Rights: Indian Constitution

enshrines the fundamental rights to individualswhich operate as limitations on the exercise ofpowers by the government. If there is aninfringement of the Fundamental Rights of acitizen, the rule of law requires that there shouldbe a proper forum for the address of his grievances.For this purpose, it is provided that an aggrieved


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person may even move the Supreme Court directlyby appropriate proceedings for the enforcement ofhis fundamental rights. The rule of law under theConstitution thus serves the needs of the people.It recognises the social reality and tries to adjustitself to it from time to time avoiding theauthoritarian path.

It is specifically provided that the state shallnot deny to any person, equality before the lawor the equal protection of law. The absence ofarbitrary power is the first essential of the rule oflaw upon which the Indian constitutional systemis based. In a system governed by the rule of law,discretion, when conferred upon executiveauthorities, must be confined within clearly definedlimits. This means that decision should be madeby the application of known principles and rulesand, in general, such decisions should be predictableand the citizen should know where he stands.

Directive Principles: The Indian Constitutionlays down in Part IV the Directive Principles ofState Policy. It enjoins to bring about a social orderin which justice, social, economic and political,shall prevail all the institutions of national life. Itdirects it to work for an egalitarian society wherethere is no concentration of wealth, where thereis plenty, where there is equal opportunity for all,to education, to work, to livelihood, and wherethere is social justice.

It is true that the representatives of the peopleare charged with the responsibility of realising theaims and objectives of the Constitution, but left tothemselves there is a possibility that uncontrolledand unrestricted power might lead to anauthoritarian State. It is here that the DPSPs. comeinto picture & serve as the beacon lights for boththe politicians as well as the judiciiary who isresponsible for ensuring that the govt. of the dayrespects the rights of the people & acts as per ruleof law.

JUDICIAL REVIEW

Judicial Review means the power of the courtsto declare a law made by legislature beyond thepowers given to it by the Constitution as ultraviresof the Constitution and hence void. Judicial reviewis a powerful weapon to restrain anyunconstitutional exercise of power by theLegislature and the Executive. The only check onthe exercise of power by the judiciary, however,

is the self-imposed discipline of judicial restraint.The doctrine of judicial review does not permit thecourt to direct or advise the executive in mattersof policy or to sermonize vis--vis any matterwhich under the Constitution lies within thesphere of Legislature or the Executive, providedthose authorities do no transgresses theirconstitutional limits or statutory powers.

Judicial Review in IndiaThe phrase "judicial review" is not anywhere

used in the Indian Constitution. But, the framersof Indian Constitution intended this power to beexercised by the courts while interpreting any lawpassed by the Parliament or State-legislatures.

Till 1967 the Supreme Court had exercised thepower of judicial review with restraint. But insGolaknath case, 1967, the Supreme Courtoverruled previous decisions and declared that theParliament could not amend the Constitution totake away or abridge any of the FundamentalRights. This decision resulted in a publiccontroversy over the sovereignty of Parliament.Then, came two other judgments of the SupremeCourt - the Bank Nationalization case and thePrivy Purses case. These cases also questioned thesupremacy of the parliament. Soon thereafter ina newly elected Lok Sabha following the 1971elections, the Parliament passed 24th , 25th and26th constitution Amendment bills to neutralisethe effect of the three above-mentioned SupremeCourt judgments. In the famous KeshavanandBharati Case, 1973, the Supreme Court reversedthe Golaknath Case ruling and upheld Parliament'sright to amend the Constitution including theFundamental Rights, but not the 'basic structureor framework' of the Constitution. The SupremeCourt holds the view that the Parliament is notomnipotent to change the basic structure of theConstitution.

Impact of the 42nd AmendmentThe 42nd Amendment enacted during the

Emergency made far-reaching changes to curtailthe powers of the courts and to make the Parliamentsovereign. Firstly, the 42nd Amendment statedthat no amendment to the Constitution could bequestioned in a Court of Law. And "for theremoval of the doubts, it is hereby declared thatthere shall be no limitation what ever on the


constituent power of Parliament to amend by wayof addition, variation or repeal the provisions ofthis constitution." In this manner, through thisAmendment the Supreme Court's power to judicialreview of constitutional amendments was takenaway to establish the complete and totalsovereignty of Parliament. The Amendment statedthat:(a) A High Court cannot pronounce invalid any

Central law,(b) The Supreme Court shall not pronounce a

State law as unconstitutional unless a Centrallaw has also been challenged.Further, the minimum number of judges of the

Supreme Court who shall sit to determine theconstitutional validity of any Central or State lawshall be seven and in the case of High Court, five.It was also stated that a majority of not less thantwo- thirds of the judges hearing such a case mustagree before a law is declared invalid. But afterthis the 43rd Amendment was passed whichrestored the pre-emergency position of the SupremeCourt's power of judicial review over laws passedby state legislatures and Parliament. As far asParliament's sovereignty with regard to amendingthe Constitution is concerned, there is no change.The power of Parliament to amend the Constitutionexists as under the 42nd Amendment, howeverthe judgment of the Supreme Court in the MinervaMills case in May 1980 was a setback to theposition of unlimited powers claimed by theParliament to amend any part of Constitution.This judgment recognized only limited powers ofthe Parliament to amend the Constitution withoutaltering the basic structure.

Constitutional ProvisionsArticle 32 of the Constitution makes the

Supreme Court the ultimate guardian of theFundamental Rights of the citizens and clothes itwith the power to issue writs for their enforcement.Article 142 gives the Apex Court wide powers toproonounce orders as are necessary in the interestof justice for doing complete justice in any causeor matter before it, in addition to its powers tomake decisions under article 131 to 136. Article142 contains no words of limitation and hasenabled the court to intervene in a wide varietyof cases. Starting with Union Carbide Corpn. v.Union of India, (1991) Supreme Court has made

significant strides to maintain the rule of law,which is the bedrock of our Constitution.

Significance of Judicial ReviewIt is said that there is a shift from the traditional

judicial role to judicial activism, from passivity tocreativity, in that the courts are taking judicialnotice of the changing needs of the society andevolving new tools for redressing public wrongs.Public Interest Litigation based on the enlargedconcept of locus standi, has developed on accountof judicial activism. In several matters, the Courtshave provided relief through the 'judicial review',such as, in cases concerning the deprived ordisadvantaged sections of the society, prisoners,environmental degradation, closure of pollutingindustries in Delhi, encroachments andunauthorised constructions, immediate medicalaid by government hospitals to seriously injuredpersons, reparations to riot-victims, professionalcollege admissions, contempt involvingdisobedience or imperviousness to court orders,corruption in high places, or malfeasance of publicservants (including Ministers) involving breach ofpublic trust, etc.

ConclusionUndoubtedly, the maxim "the King can do no

wrong" or absolute immunity of the governmentis not recognised in our legal system, ratherindependence and impartiality which are the twobasic attributes essential for proper discharge ofjudicial functions are emphasized upon. In fact,"judicial activism" is nothing but Judiciary'sinsistence that the rule of law must guide theLegislature and the Executive in enacting orenforcing the laws of the land. Judicial review isa constitutionally embraced concept, which hasbeen streesed upon in cases like Minerva MillsLtd.v. Unin of India, S.P.Sampath Kumar v.Union of India. Subhesh Sharma v. Union ofIndia,etc. Judicial review, in India is a power bornfrom the first principles of democraticconstitutionalism & is today an area of greatpromise. It is an essential part of the rule of law.

However, it must also be kept in view that theactual governance of the country is certainly thesphere of the Executive which is accountable toParliament. Neither the Executive nor the Judiciaryshould exceed their legitimate functions. Only


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then the two organs of the State can functionharmoniously. Self restraint is the key to the wholeissue.

JUDICIARY VS. LEGISLATURE

Conflict between legislature and the judiciaryhas often given rise to anxiety and grave concernto the governments at the Centre and the States.The executive heaves a sigh of relief when theconflict gets resolved or the matter is put in thecold storage after initial heat over the powers eachof these wings of the States enjoy under theConstitution subsidies. There are a number ofcases where friction between the two has arisen.There has been a perennial conflict not only inndiabut also in England about the respective rights andprivileges of Members of Parliament and theJudiciary.

The Indian SceneIn India, under the written Constitution, the

three organs of the Government, viz. theLegislature, judiciary and the executive, have tofunction within their respective powers and noneof them can exceed its powers. Whether, any oneof these organs has exceeded its powers or not, isa matter of judicial interpretation. In severaldecisions of the Supreme Court, it has been heldthat the Supreme Court is the ultimate interpreter

of the Constitution and its interpretation is bindingon all courts, tribunals and authorities in thiscountry. Under article 141 of the Constitution, thelaw declared by the Supreme Court is binding onall parties. So, if there is any doubt that anyparticular organ of Government has exceeded itspowers, the interpretation ultimately rests withthe Supreme Court.

Even the powers granted by the Constitutionto the Members of Parliament and the Assemblyare subject to other provisions of the Constitution.They cannot act arbitrarily; nor can they deprivethe citizens of their fundamental rights arbitrarily.There is a provision in the Constitution for codifyingthe laws relating to the privileges of legislaturesand if Parliament makes such a law that infringeswith Article 13 of the Constitution; validity of thesame can be tested before the Supreme Court inthe same manner as any other legislation. So, thescheme of the Constitution does not contemplatethat Parliament or a State Legislature is not at allliable to be questioned for any violation of lawsince rule of law is the corner-stone of theConstitution of India. Though Legislatures inIndia have plenary powers they function withinlimits prescribed by the material and relevantprovisions of the Constitution.Main areas of conflict

Following are the Main areas of conflictbetween the Legislature and the Judiciary:(a) Existence, extent and scope of Parliamentary

privileges and power of Legislatures to punishfor contempt,

(b) Interference in the proceedings ofParliament/Legislatures,

(c) Decisions given by the Presiding Officers ofLegislatures under the Anti-defection law;and

(d) Decision given by the Presiding Officers ofLegislatures in administration of theirSecretariats.

ConclusionWith an aim to reduce the conflict between the

Legislature and Judiciary, it is recommended thatthe Presiding Officers should not be made partypersonally in a suit pertaining to the administrativematters of their Secretariats. The suit, in turn,could be filed against the concerned Legislature

WHAT QUESTIONS ARE RAISED AGAINSTJUDICIAL REVIEW?

Following are the main questions raised by thecritics of Judicial Review: Is the judiciary expanding its powers at the ex-

pense of the executive? Are the courts reaching the boundaries of the rule

of separation of powers? Do the new dimensions, which the judicial review

has brought in, are attempts to tread on territoryhitherto reserved for the Executive?

Is there a government by the Judiciary, unsup-ported by any popular mandate?

What is the line where the courts will stop?These questions often agitate the minds of think-

ing people. The public opinion is divided on theseissues and the biggest question that remains unan-swered is - "whether the judiciary has exceeded thelimits of its legitimate functions?"


through the Secretary of the Legislature whocould represent the legislature in the Court and ifnecessary, appear personally in the case. But, it isNOT recommended to enlarge the scope of article361 to provide the same protection to the PresidingOfficers as enjoyed by the President of India andthe Governors of States. Some critics opine thatthere was no need to codify the privileges of theLegislature. This argument is understandable as itis based on the apprehension that it will give riseto more judicial interference. On the other hand,from the point of view of citizens, the codification

of privileges of Legislatures may be highly desirable,a view-point which is strongly supported by thepress and the media. It is a matter of satisfactionthat there have not been too many cases wherethe Legislature was called upon to exercise itspowers for punishing for the breach of privilegeand contempt of the House. But, the relationsbetween legislature and judiciary in the context ofprivileges and immunities would continue to causesome uneasiness till the time grammar and spiritof democratic form of government became thegrain of Indian society.

Anyways, it is needless to say that the strengthof the democracy lies in the existence of harmoniousrelations among different organs of the State, inparticular, Legislature and Judiciary. These relationscan be harmonized through informal mechanismsand mutual understanding. After all, every detailrelating to the functioning of democracy cannotbe put in black and white.

PANCHAYAT& MUNICIPALITIES

Rural Local BodiesThe Constitution (73rd Amendment) Act,

1992 has added a new Part IX consisting of 16Articles and the Eleventh Schedule to theConstitution. The 73rd Amendment Actenvisages the Gram Sabha as the foundation ofthe Panchayati Raj System to perform functionsand powers entrusted to it by the Statelegislatures. The amendment provide for a threetier Panchayati Raj System at the village,intermediate and district levels. Small stateswith population below twenty lakh have beengiven the option not to constitute the Panchayatsat the intermediate level. The Act provides thatthe Panchayat bodies will have an assuredduration of five years, with elections mandatoryafter this period. However, one thing is to benoted that under the Amendment Act theestablishment of Panchayats and the devolutionof necessary powers and authority on thePanchayati Raj institutions are vested in theState Governments. In view of this it may besaid that the success of the Panchayati Rajinstitutions as a unit of democracy and therebyushering an all around development of ruralareas will much depend on the intention and

WHAT ARE THE POWERS, PRIVILEGES ANDIMMUNITIES OF MEMBERS OF LEGISLATURES?

The relevant provision of the Constitution relatingto powers, privileges and immunities of the mem-bers of Parliament and State Legislatures is incor-porated under Article 105 & Article 194 respectively.These Articles provide that:

(1) Subject to the provisions of the Constitutionand to the rules and standing orders regu-lating the procedure of the Legislatures, thereshall be freedom of speech in the Legisla-ture of the Union and of every State.

(2) No member of any Legislature shall be li-able to any proceedings in any court in re-spect of anything said or any vote given byhim in the Legislature or any committeethereof, and no person shall be so liable inrespect of the publication by or under theauthority of a House of such a Legislature ofany report, paper, votes or proceedings.

(3) In other respects, the powers, privileges andimmunities of a House of any Legislature,and of the members and committees of aHouse of such Legislature, shall be such asmay from time to time be defined by thatLegislature by law, and until so defined, shallbe those of that House and of its membersand committees immediately before thecoming into force of section 26 of the Con-stitution (Forty-fourth Amendment) act, 1978.

It must be noted that although the Constitution(Forty-fourth amendment) Act, 1978 omitted refer-ence to the British House of Commons for the pur-pose of determining the powers and privileges ofHouses of Parliament in India, in the absence ofenactment of any law defining them, these privi-leges, in effect, remained the same as those of theBritish House of Commons at the commencementof the Constitution.


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support of the State Governments. Withouthonest intention, these institutions would bemisused by rural rich and poor and illiteratemasses will remain a mute supporters as it ishappening in Parliamentary and State Assemblyelections in the Country.The salient features of the Seventy-ThirdConstitutional Amendment Act may besummarised as follows:

Gram Sabha: Article 243A provides that theGram Sabha may exercise such powers andperform such functions at the village level as thelegislature of a State may by law provide. The73rd amendment thus envisages the Gram Sabhaas the foundation of Panchayati Raj System.Gram Sabha means a body consisting of personsregistered in the electoral rolls relating to villagecomprised within the area of Panchayat at thevillage level.

Constitution of Panchayats: Article 243Bvisualises a three-tier Panchayati Raj System. Itprovides that in every State there shall beconstituted Panchayats at the village,intermediate and district levels. Small stateshaving a population not exceeding twenty lakhshave been given an option not to constitute thePanchayats at the intermediate level.

Composition of Panchayats: Article 243Cprovides that, subject to the provisions of thispart the legislature of a State may by law makeprovisions with respect to the composition ofPanchayats. However, the ratio between thepopulation of the territorial area of a Panchayatat any level and the number of seats in suchPanchayats to be filled by election shall, so faras practicable, be the same throughout theState.

All the seats in a Panchayat shall be filled bypersons chosen by direct election from territorialconstituencies in the Panchayat area. For thispurpose each Panchayat area shall be dividedinto territorial constituencies in such mannerthat the ratio between the population of eachconstituencies and the number of seats allottedto it, so far as practicable, be the same throughoutthe Panchayat area.

The legislature of a State may by law providefor representation of following persons inPanchayats :

(a) the Chairpersons (Chairman) of thePanchayats at the village level, in thePanchayats at the intermediate level or inthe case of a State not having Panchayats atthe intermediate level, in the Panchayats inthe district level;

(b) the Chairpersons of the Panchayats at theintermediate level, in the Panchayats at thedistrict level;

(c) the members of the Lok Sabha and theLegislative Assembly of the Staterepresenting constituencies which comprisewholly or partly a Panchayat area at thelevel other than the village level, in suchPanchayats;

(d) the members of the Rajya Sabha andLegislative Council of the State where theyare registered as electors.The Chairperson of a Panchayat and other

members of Panchayat whether or not chosenby direct election from territorial constituenciesin the Panchayat area shall have the right tovote in the meetings of Panchayat.

The Chairperson of a Panchayat at thevillage level shall be elected in such a manneras the legislature of a State may by law, provide.The Chairperson of a Panchayat at theintermediate level or district level shall be electedby, and amongst, the elected members thereof.

Disqualifications for Membership: Aperson shall be disqualified for being chosen as,and for being a member of Panchayats:(a) if he is so disqualified by or under any law

for the time being in force for the purposesof elections to the legislature of the Stateconcerned;

(b) if he is so disqualified by or under any lawmade by the legislature of the State.But no person shall be qualified on the

ground that he is less than 25 years of age,under clause (a), if he has attained the age of21 years.

If any question arises as to whether a memberof a Panchayat has become subject to any of thequalifications mentioned in clause (1) thequestion shall be referred for the decision ofsuch authority and in such manner as thelegislature of a State may, by law, provide.


Reservation of Seats in Panchayats: Article243D provides that in every Panchayats seatsshall be reserved for the Scheduled Castes andScheduled Tribes. The number of seats soreserved shall be, as nearly as may be, in thesame proportion to the total number of seats tobe filled by direct election in that Panchayat asthe population of the SCs and STs in thatPanchayat area bears to the total population ofthat area and such seats may be allotted byrotation to different constituencies in aPanchayat.

Out of total number of seats reserved underclause (1) not less than 1/3 seats shall bereserved from women belonging to the SCs andSTs. [Clause (2)] Out of total number of seats tobe filled by direct election in every Panchayatnot less than 1/3 (including the number of seatsreserved for SCs and STs women) seats shallbe reserved for women. Such seats may beallotted by rotation to different constituents ina Panchayat. [Clause (3)]

The office of the Chairpersons in thePanchayats at the village or any other level shallbe reserved for SCs, STs, and women in suchmanner as the legislature of a State may, by law,provide. But the number of offices ofChairpersons reserved for the SCs and STs inthe Panchayats at each level in any State shallbe, as nearly as possible, in the same proportionto the total number of such offices in thePanchayats at each level in proportion of thetotal population of the SCs and STs in the State.However, not less than 1/3 of the total numberof the offices of Chairperson in the Panchayatat each level shall be reserved for women. Thenumber of offices reserved under this clauseshall be allotted by rotation to differentPanchayats at each level.

The reservation of seats under clauses (1)and (2) and the reservation of offices ofChairperson (other than the reservation forwomen) under clause (4) shall cease to haveeffect on the expiration of the period specifiedin Article 334. [Clause (5)]

Reservation for Backward Classes : Thelegislature of a State is empowered under clause(6) to make provision or reservation of seats inany Panchayat or office of Chairpersons in the

Panchayats at any level in favour of backwardclasses of citizens.

Duration of Panchayats : According toArticle 243E every Panchayat, unless soonerdissolved under any law for the time being inforce, shall continue for five years from the dateappointed for its first meeting. No amendmentof any law in force shall have effect of causingdissolution of a Panchayat at any level whichis functioning before such amendment till theexpiration of its normal period of five years.

An election to constitute a Panchayat mustbe completed :(a) before the expiry of its duration;(b) before the expiration of a period of six

months from the date of its dissolution.But where the remainder of the period for

which the dissolved Panchayat would havecontinued in less than six months, it shall notbe necessary to hold any election under thisclause for constituting the Panchayat for suchperiod.

Powers, Authority and Responsibility ofPanchayats : Article 243G, provides that subjectto the provisions of this Constitution thelegislature of a State may, by law, endow thePanchayats with such powers and authority asmay be necessary to enable them to function asan institution of self government. Such law maycontain provision for the devolution of powersand responsibilities upon Panchayats subject tosuch conditions as may be specified therein,with respect to :(a) the preparation of plans for economic

development and social justice;(b) the implementation of schemes for social

development and social justice as may beentrusted to them including those in relationto the matters listed in the Eleventh Schedule.The matters listed in the Eleventh Schedule

are as follows:1. Agriculture, including agricultural exten-

sion.2. Land improvement, implementation of

land reforms, land consolidation and soilconservation.

3. Minor irrigation, water management andwatershed development.


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4. Animal husbandry, dairying and poultry.5. Fisheries.6. Social forestry and farm forestry.7. Minor forest produce.8. Small-scale industries, including food pro-

cessing industries.9. Khadi, village and cottage industries.

10. Rural housing.11. Drinking Water.12. Fuel and fodder.13. Roads, culverts, bridges, ferries, water-

ways and other means of communication.14. Rural electrification, including distribu-

tion of electricity.15. Non-conventional energy sources.16. Poverty alleviation programme.17. Education, including primary and second-

ary schools.18. Technical training and vocational educa-

tion.19. Audit and non-formal education.20. Libraries.21. Cultural activities.22. Markets and fairs.23. Health and sanitation, including hospitals,

primary health centres and dispensaries.24. Family welfare.25. Women and child development.26. Social welfare, including welfare of the

handicapped and mentally retarded.27. Welfare of the weaker sections, and in

particular, of the Scheduled Castes andthe Scheduled Tribes.

28. Public distribution system.29. Maintenance of community assets.

It is to be noted that Article 243G is subjectto the provisions of the Constitution. This meansthat the normal distribution of powers underArticle 245 and 246 cannot be effected by theState legislature while vesting with powers andauthorities upon the Panchayats.

Powers to Impose Taxes and Funds ofPanchayats : Article 243H empowers a Statelegislature to make by law provision for imposingtaxes etc. by the Panchayats, such a law :(a) authorize a Panchayat to levy, collect and

appropriate such taxes, duties, tolls and feesin accordance with such procedure andsubject to such limits;

(b) assign to a Panchayat such taxes, duties,

tolls and fees levied and collected by theState Government for such purposes andsubject to such conditions and limits;

(c) provide for making such grants-in-aid to thePanchayats from the Consolidated Fund forthe State; and

(d) provide for constitution of such funds forcrediting all moneys received, by or on behalfof the Panchayats and also for thewithdrawal of such money therefrom.Finance Commission : Article 243-I provides

for the establishment of a Finance Commissionfor reviewing financial position of thePanchayats. The Governor of a State shall withinone year from the commencement of theConstitution (73rd Amendment) Act, 1992 andthereafter at the expiration of every fifth year,constitute a Finance Commission. The legislatureof the State may by law, provide for thecomposition of the Commission, the qualificationsrequisite for appointment of its members andthe manner in which they shall be selected.

It shall be the duty of the Finance Commissionto review the financial position of the Panchayatsand to make recommendations to the Governoras to:(a) the principles which should govern :

(i) the distribution between the State and thePanchayats of the net proceeds of thetaxes, duties, tolls and fees leviable by theState, which may be divided betweenthem under this Part and the allocationbetween the Panchayats at all levels oftheir respective shares of such proceeds;

(ii) the determination of the taxes, duties, tollsand fees which may assigned to, or appro-priated by, the Panchayats;

(iii) the grants-in-aid to the Panchayats fromthe Consolidated Fund of the State;

(b) the measures needed to improve the financialposition of the Panchayats;

(c) any other matter referred to the FinanceCommission by the Governor in the interestsof sound finance of the Panchayats.The commission shall determine its procedure

and shall have such powers in the performanceof its functions as the State legislature may, bylaw, confer on it.


The Governor shall cause everyrecommendation made by the Commissiontogether with an explanatory memorandum asto the action taken thereon to be laid before thelegislature of the State.

The Governor shall cause everyrecommendation made by the Commissiontogether with an explanatory memorandum asto the action taken thereon to be laid before thelegislature of the State

The State Finance Commission underPanchayatri Raj Law is designed to ensureregional balance in the distribution of State andCentral Funds.

Audit of Accounts of Panchayats : Thelegislature of a State may, by law, make provisionwith respect to the maintenance of accounts bythe Panchayats and the auditing of suchaccounts.

Elections to the Panchayats : Under Article243K the superintendence, direction and controlof the preparation of electoral rolls and conductof all elections to the Panchayats shall be vestedin a State Election Commission consisting of theState Election Commissioner to be appointed bythe Governor. Subject to the provisions of anylaw made by the State legislature, the conditionsof service and tenure of office of the StateElection Commissioner shall be such as theGovernor may by rule determine. The StateElection Commissioner shall not be removedfrom his office except in like manner and on likegrounds as a Judge of a High Court. Theconditions of service of the State ElectionCommissioner shall not be varied to hisdisadvantage after his appointment.

The Governor of State shall, when sorequested by the State Election Commissioner,make available to Commission such staff as maybe necessary for the discharge of its functions.

The State legislature may, subject to theprovisions of this Constitution, by law, makeprovision with respect to all matters relating toor in connection with elections to the Panchayats.

Part not to apply to Certain Areas : Article243M provides that Part 9 shall not apply to thefollowing areas :

1. the scheduled areas referred to in clause(1) and tribal areas referred to in clause (2)of Article 244;

2. the State of Nagaland, Meghalaya andMizoram;

3. the hill areas in the State of Manipur forwhich District Councils exist under anylaw for the time being in force;

4. to Panchayats at the district level of the hillareas of the District of Darjeeling in theState of West Bengal for which DarjeelingGorkha Hill Council exists under any lawfor the time being in force;

5. shall affect the functions and powers ofthe Darjeeling Gorkha Hill Council consti-tuted under such law.

Notwithstanding anything in thisConstitution:(a) The State Legislature of Nagaland,

Meghalaya and Mizoram may, by law,extend this Part to that State, except theareas referred to in clause (1) if the LegislativeAssembly of that State passes a resolution tothat effect by a majority of the totalmembership of that House and by a majorityof not less than two-third of the members ofthat House present and voting;

(b) Parliament may, by law, extend the provisionsof Part 9 to the Scheduled areas and Tribalareas referred to in clause (1) subject to suchexceptions and modifications as may bespecified in such law, such law shall not bedeemed to be amendment of this Constitutionfor the purposes of Article 368.Continuance of Existing Laws and

Panchayats : Article 243N provides that notwithstanding anything in Part 9 or any provisionof any law relating to Panchayats in force in aState immediately before the commencement ofthe Constitution (73rd Amendment) Act, 1992,which is inconsistent with the provisions of Part9, shall continue to be in force until amendedor repealed by a competent legislature or othercompetent authority or until the expiration ofone year from such commencement, whicheveris earlier.

However, all the Panchayats existingimmediately before such Government shall


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continue till the expiration of their duration,unless sooner dissolved by resolution passed bythe Legislative Assembly of that State or in aState having a Legislative Council, by eachHouse of the Legislature of the State.

Courts not to interfere in Electoral Matters:Article 243-O bars the interference by courts inelectoral matters of Panchayats. It provides thatnotwithstanding anything in this Constitutionthe validity of any law relating to the delimitationof constituencies or the allotment of seats tosuch constituencies made under Article 243Kshall not be called in question in any court.

The validity of an election to any Panchayatcan be challenged only through an electionpetition presented to such authority and in suchmanner as provided by any law made by thelegislature of a State.

Financial Powers of Panchayati RajInstitutions

Article 243-G of the Constitution of Indiaintroduced by the 73rd Amendmentdeals withthe question of powers, authority andresponsibilities of Panchayats. It reads thus :

Subject to the provisions of the Constitution,the legislature of the State may, by law, endowthe Panchayats with such powers and authorityas may be necessary to enable them to functionas institutions of self-government and such lawmay contain provisions for the devolution ofpowers and responsibilities upon Panchayats atthe appropriate level, subject to such conditionsas may be specified therein, with respect to(a)the preparation of plans for economicdevelopment and social justice; and (b) theimplementation of such schemes for economicdevelopment and social justice as may beentrusted to them including those in relation tothe matters listed in the Eleventh Schedule.

While Article 243-G of the Constitutionvisualises Panchayats as institutions for self-government, it subjects the extent of devolutionof powers and functions to the will of the StateLegislatures.

As per Article 243-H of the Constitution,State Legislatures have been empowered toenact laws;

to authorise a Panchayat to levy, collect andappropriate some taxes, duties, tolls andfees;

to assign to the Panchayat, some taxes,duties, tolls levied and collected by the StateGovernment;

to provide for making grants-in-aid to thePanchayats from the Consolidated Fund ofthe State; and

to provide for constitution of such funds forPanchayats for crediting all money receivedby or on behalf of Panchayats and also thewithdrawal of such money therefrom.Article 243-I of the Constitution provides for

constitution of a State Finance Commission(SFC) to review the financial position ofPanchayats and to make recommendations tothe Governor regarding the principles governingthe major issues mentioned in Article 243-H.

Urban Local BodiesThe Narsimha Rao Government introduced

a Constitution Amendment Bill pertaining tourban local bodies in the Lok Sabha on September16, 1991. With a few modifications, it wasessentially based on the 65th Amendment Billbrought by the then Prime Minister, Rajiv Gandhiand which was defeated in the Rajya Sabha inOctober 1989. The Bill was passed by both theHouses in December 1992. It received the assentof the President on April 20, 1993 and waspublished in the gazette on the same day as theConstitution 74th Amendment Act, 1992.

Part IX-A has been added to the constitution.This amendment has added 18 new articles anda new twelfth schedule relating to urban localbodies in the constitution.

The objectives of 74th ConstitutionAmendment Act include decentralization ofpower and ensuring popular participation inplanning management and delivery of civilservices. It introduces some fundamental changesin the system of municipal governance. Durationof elected municipal governments, participationof women and weaker sections in urban affairsand enabling framework for efficient delivery ofpublic services were regarded as appropriatesubject covered by constitutional provisions.


Accordingly, the 74th ConstitutionalAmendment Act provided for:Definitions:

In this Part, unless the context otherwiserequires,(a) Committee means a Committee constituted

under article 243S;(b) District means a district in a State;(c) Metropolitian area means an area having

a population of ten lakhs or more, comprisedin one or more districts and consisting of twoor more Municipalities or Panchayats orother contiguous areas, specified by theGovernor by public notification to be aMetropolitan area for the purposes of thisPart;

(d) Municipal area means the territorial areaof a Municipality as is notified by theGovernor;

(e) Municipality means an institution of self-government constituted under article 243Q;

(f) Panchayat means a Panchayat constitutedarticle 243B;

(g) Population means the population asascertained at the last preceding census ofwhich the relevant figures have beenpublished.

Constitution of Municipalities:(1) There shall be constituted in every State:

(a) A Nagar Panchayat (by whatevername called) for a transitional area,that is to say, an area in transitionfrom a rural area to an urban area;

(b) A Municipal Council for a smallerurban area; and

(c) A Municipal Corporation for a largerurban area.

In accordance with the provisions of thisPart:

Provided that a Municipality under thisclause may not be constituted in such urbanarea or part thereof as the Governor may,having regard to the population of the area, thedensity of the population therein, the revenuegenerated for local administration, thepercentage of employment in non-agriculturalactivities, the economic importance or such

other factors as he may deem fit, specify bypublic notification for the purpose of this Part.Composition of Municipalities:(1) Save as provided in clause (2), all the seats

in Municipality shall be filled by personschosen by direct election from the territo-rial constituencies in the Municipal areaand for this purpose each Municipal areashall be divided into territorial constituen-cies to be known as wards.

(2) The Legislature of a State may, by law,provide:(a) For the representation in a

Municipality of:(i) Persons having special knowledge

or experience in Municipaladministration;

(ii) The members of the House of thePeople and the members of theLegislative Assembly of the Staterepresenting constituencies whichcomprise wholly or partly theMunicipal area;

(iii) The members of the Council ofStates and the members of thelegislative Council of the Stateregistered as electors within theMunicipal area;

(iv) The Chairpersons of theCommittees constituted underclause (5) of article 243S:

Provided that the persons referred to inparagraph (i) shall not have the right to vote inthe meetings of the Municipality;(b) The manner of election of the Chairperson

of a Municipality.Constitution and Composition of WardsCommittees:(1) There shall be constituted Wards Commit-

tees, consisting of one or more wards,within the territorial area of a Municipal-ity having a population of three lakh ormore.

(2) The Legislature of a State may, by law,make provision with respect to:(a) The composition and the territorial

area of a Wards Committee;


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(b) The manner in which the seats in aWards Committee shall be filled.

(3) A member of a Municipality representinga ward within the territorial area of theWards Committee shall be a member ofthat Committee.

(4) Where a Wards Committee consists of:(a) One ward. The member representing

that ward in the Municipality; or(b) Two or more wards, one of the

members representing such wards inthe Municipality elected by themembers of the Wards Committee,shall be the Chairperson of thatCommittee.

(5) Nothing in this article shall be deemed toprevent the legislature of a State frommaking any provision for the constitutionof Committees in addition to the WardsCommittee.

Reservation of Seats:(1) Seats shall be reserved for the Scheduled

Castes and the Scheduled Tribes in everyMunicipality and the number of seats soreserved shall bear, as nearly as may be,the same proportion to the total number ofseats to be filled by direct election in thatMunicipality as the population of theScheduled Castes in the Municipal area orof the Scheduled Tribes in the Municipalarea bears to the total population of thatarea and such seats may be allotted byrotation to different constituencies in aMunicipality.

(2) Not less than one-third of the total numberof seats reserved under clause (1) shall bereserved for women belonging to the Sched-uled Castes or, as the case may be, theScheduled Tribes.

(3) Not less than one-third (including thenumber of seats reserved for women be-longing to the Scheduled Castes and theScheduled Tribes) of the total number ofseats to be filled by direct election in everyMunicipality shall be reserved forwomen and such seats may be allotted byrotation to different constituencies in aMunicipality.

(4) The offices of Chairpersons in the Munici-palities shall be reserved for the ScheduledCastes, the Scheduled Tribes and womenin such manner as the legislature of a Statemay, by law, provide.

(5) The reservation of seats under clauses (1)and (2) and the reservation of offices ofChairpersons (other than the reservationfor women) under clauses (3) shall ceaseto have effect on the expiration of theperiod specified in article 334

(6) Nothing in this Part shall prevent theLegislature of a State from making anyprovision for reservation of seats in anyMunicipality or offices of Chairpersons inthe Municipalities in favour of backwardclass of citizens.

Duration of Municipalities:(1) Every Municipality, unless sooner dissolved

under any law for the time being in force,shall continue for five years from the dateappointed for its first meeting and nolonger:

Provided that a Municipality shall be givena reasonable opportunity of being heard beforeits dissolution.(2) No amendment of any law for the time

being in force shall have the effect ofcausing dissolution of a Municipality atany level, which is functioning immedi-ately before such amendment, till the ex-piration of its duration specified in class(1).

(3) An election to constitute a Municipalityshall be completed:(a) Before the expiry of its duration

specified in clause (1).(b) Before the expiration of a period of six

months from the date of its dissolution:Provided that where the remainder of the

period for which the dissolved Municipalitywould have continued is less than six months,it shall not be necessary to hold any electionunder this clause for constituting theMunicipality of such period.(4) A Municipality constituted upon the dis-

solution of a Municipality before the expi-ration of its duration shall continue only


for the remainder of the period for whichthe dissolved Municipality would havecontinued under clause (1) had it not beenso dissolved.

Disqualification for Membership:(1) A person shall be disqualified for being

chosen as, and for being, a member of aMunicipality:(a) If he is so disqualified by or under any

law for the time being in force for thepurposes of elections to the Legislatureof the State concerned:

Provided that no person shall be disqualifiedon the ground that he is less than twenty-fiveyears of age, if he has attained the age oftwenty-one years;

(b) If he is so disqualified by or under anylaw made by the legislature of theState.

(2) If any question arises as to whether amember of a Municipality has becomesubject to any of the disqualificationsmentioned in clauses (1), the question shallbe referred to for the decision of suchauthority and in such manner as thelegislature of a State may, by law, provide.

Powers, Authority and Responsibilities ofMunicipalities:

Subject to the provisions of this Constitution,the legislature of a State may, by law, endow:(a) The Municipalities with such powers and

authority as may be necessary to enablethem to function as institutions of self-government and such law may containprovisions for the devolution of powers andresponsibilities upon Municipalities, subjectto such conditions as may be specified therein,with respect to:(i) The preparation of plans for economic

development and social justice;(ii) The performance of functions and the

implementation of schemes as may beentrusted to them including those inrelation to the matters listed in theTwelfth Schedule;

(b) The Committees with such powers andauthority as may be necessary to enablethem to carry out the responsibilities

conferred upon them including those inrelation to the matters listed in the TwelfthSchedule.

Power to impose taxes by, and Funds of, theMunicipalities:

The Legislature of a state may, by law,(a) Assign to a Municipality such taxes, duties,

tolls and fees in accordance with suchprocedure and subject to such limits;

(b) Assign to a Municipality such taxes, dutiestolls and fees levied and collected by theState Governments for such purposes andsubject to such conditions and limit;

(c) Provide for making such grants-in-aid to thewithdrawal for such moneys therefrom, asmay be specified in the law,

(d) Provide for constitution of such funds forcrediting all moneys received, respectively,by or on behalf of the Muniscipalities andalso for the withdrawal for such moneystherefrom, as may be speciefied in the law.

Finance Commission:(1) The Finance Commission constituted un-

der Article 24-I shall also review the finan-cial position of the Municipalities andmake recommendations to the Governoras to:(a) The principles which should govern:

(i) The distribution between the Stateand the Municipalities of the netproceeds of the taxes, duties, tollsand fees leviable by the State,which may be divided betweenthem under this Part and theallocation between theMunicipalities at all level of theirrespective shares of such proceeds;

(ii) The determination of the taxes,duties, tolls and fees which maybe assigned to, or appropriatedby, the Municipalies;

(iii) The grant-in-aid to theMunicipalities from theConsolidated Fund of the States;

(b) The measure needed to improve thefinancial position of the Municipalities;


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(c) Any other matter referred to theFinance Commission by the Governorin the interest of sound finance of theMunicipalities.

(2) The Governor shall cause every recom-mendation made by the Commission un-der this article together with an explana-tory memorandum as to the action takenthereon to be laid before the Legislature ofthe State.

Audit of Accounts of Municipalities:The Legislature of a State may, by law, make

provisions with respect to the maintenance ofaccounts by the Municipalities and the auditingof such accounts.Elections to the Municipalities:(1) The Superintendence, direction and con-

trol of the preparation of electoral rolls,for, and the conduct of, all elections to theMunicipalities shall be vested in the StateElection Commission referred to in Article243K.

(2) Subject to the provisions of this Constitu-tion, the Legislature of a State may, bylaw, make provision with respect to allmatters relating to, or in connection with,elections to the Municipalities.

Application to Union Territories:The provisions of this Part shall apply to the

Union territories and shall, in their applicationto a Union territory, have effect as if thereferences to the Governor of a State werereference to the Administrator of the Unionterritory appointed under Article 239 andreferences to the Legislature or the LegislatureAssembly of a State were references in relationto a Union territory having a LegislativeAssembly, to that Legislative Assembly.

Provided that the President may, by publicnotification, direct that the provisions of thisPart apply to any Union territory or part thereofsubject to such exception and modification as hemay specify in the notification.

Part not to apply to certain areas:(1) Nothing in this Part shall apply to the

Scheduled Areas referred to in clause (1),and the tribal areas referred to in clause(2), of Article 244.

(2) Nothing in this Part shall be construed toaffect the function and powers of theDarjeeling Gorkha Hill Council consti-tuted under any law for the time being inforce for the hill areas of the district ofDarjeeling in the State of West Bengal.

(3) Notwithstanding anything in this Consti-tution, Parliament may, by law, extend theprovision of this Part to the ScheduledAreas and the tribal areas referred to inclause (1) subject to such exception andmodifications as may be specified in suchlaw, and no. such law shall be deemed tobe an amendment of this Constitution forthe purposes of Article 368.

Committee for District Planning:(1) There shall be constituted in every State at

the district level a District Planning Com-mittee to consolidate the plans preparedby the Panchayats and the Municipalitiesin the district and to prepare a draftdevelopment plan for the district as awhole.

(2) The Legislature of a State may, by law,make provision with respect to:(a) The composition of the District

Planning Committees;(b) The manner in which the seats in such

Committee shall be filled:Provided that not less than four-fifths of the

total number of members o

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