Indian Polity

HISTORICAL BACKGROUND AND MAKING OF THE CONSTITUTION

The idea to have a Constitution was given by MN Roy. The Constitution declares lndia to be a

Sovereign, Socialist, Secular, Democratic and Republic for assuring its citizens of Justice, Equality and

Liberty and Endeavours to promote fraternity among them.

Historical Background

British Administration in India till 1858 was mainly that of the East India

Company. As we know, the British came to India in 1600 as traders as a part of

East India Company. Later, in 1765, they got Diwani Right over Bengal, Bihar

and Orissa. Also, the company, which began as a purely Commercial Corporation,

gradually attained the status of a Government. This gave impetus to various

commercial and political activities of East India Company.

With this increased power, there arose the need of regulation of activities of East

India Company. This was done by different Acts of British Parliament like

Regulating Act 1773, Pitt's India Act 1784, Charter Act 1813, 1833, 1853 etc.

After 1857 Revolt in India, British Crown took responsibiJ-ity of directly

administering India. To administer India, they passed various Government of

India Acts like Government of India Act, 1858, 1892, 1909, 1919 and 1935 etc.

Meanwhile, after setting up of Congress in 1885, it pressurised British

Government to bring reforms in Indian Administration.

In 1928, Motilal Nehru drafted a Constitution for India known as Nehru Report.

Later in 1934, MN Roy suggested that India should have a Constituent Assembly

to draft a Constitution of its own. Such a Constituent Assembly was set up in

1946. On 26th January, 1950, Indian Constitution came into being.

Constitutional Development Indian Constitution has various phases that are influenced by the British System. This

was the first step of the British Government to control the affairs of East India Company

in India. The company, through a charter, had only been given trading rights by the

British Crown. When it acquired territories in India and slowly, but surely converted

itself into a ruling body, the Parliament could not accept and regularise this development.

Regulating Act, 1773:

for the first time recognised the political and administrative functions of the company

and laid the foundation of Central Administration in India.

Features of the Act, 1773

The Regulating Act in England reformed the Court of Proprietors of the company.

Previously, a shareholder, holding a stock of £ 500 and over, became a member of

the Court of Proprietors. The Regulating Act, raised it to the minimum to £ 1000.

This made the Court of Proprietors a compact, better organised body to discharge

both its duties and responsibilities. It prohibited the servants of company from

engaging in any private trade or accepting presents or bribes from the public.

The Act elevated Governor of Bengal Warren Hastings to Governor - General and

subsumed the presidencies of Madras and Bombay under Bengal's control. The

Act named four additional men to serve with the Governor- General in the

Calcutta Council. These councillors were commonly known as the Council of

Four.

A supreme court was established at Fort William at Calcutta. British Judges were

to be sent to India to administer the British Legal System that was used there. It

strengthened the control of the British Government over the Company by

requiring the Court of Directors to report on its revenue, civil, military affairs in

India.

The shortcomings of the Regulating Act, soon became obvious. The East India

Company Act 1784, also known as Pitt's India Act (William Pitt was Prime

Minister of Britain at that time), was an Act of the Parliament of Great Britain

intended to address the shortcomings of the Regulating Act of 1773, by bringing

the East India Company's rule in India under the control of the British

Government.

In between there was one more Act known as Amending Act of 1781. It was also

known as Act of Settlement. Among many things it amended the jurisdiction of

Supreme Court. It was deprived of its Right to Action arising in the collection of

revenue.

This Act placed the Indian affairs of the East India Company under the direct

control of the British Government.

Pitt's India Act, provided for a body of six commissioners popularly known as the

Board of Control. It established Board of Control over the Court of Directors. It

consisted of one Secretary of State, the Chancellor of the Exchequer and four

Privy Councillors appointed by the King and holding office during his pleasure.

The Board of Control took care of the Political affairs while the Court of

Directors managed the commercial affairs.

Again in 1786, an Amending Act, was brought by the British Government, which

took care of problem related to the Councils of the Governor-General and

Governors and made Lord Cornwallis the second Governor-General.

Charter Act, 1793

Charter Act of 1793, was an Act of the Parliament of Great Britain, which renewed the

charter issued to the British East India Company and continued the company's rule in

India The Act made only fairly minimal changes to either the system of Government in

India or British oversight of the company's activities. Most importantly, the Company's

trade monopoly was continued for a further period of 20 years. The Governor-General

was granted extensive powers over the subordinate Presidencies.

Charter Act of 1813

The East India Company Act, 1813, also known as the Charter Act of 1813, renewed the

charter issued to the British East India Company and continued the Company's rule in

India. However, the Company's commercial monopoly was ended, except for the tea

trade and the trade with China reflecting the growth of British power in India.

Provisions of the Act, 1813 Following were the provisions of 1813 act

The Act expressly asserted the Crown's Sovereignty over British India.

Christian Missionaries were allowed to come to British India and preach their

religion.

It directed that separate accounts to be maintained of the Company's territorial and

commercial revenues.

The Company's Charter had previously been renewed by the Charter Act of 1793

and was next renewed by the Government of India Act 1833.

The Charter Act of 1833

It came into being after many Socio-political changes in British society. The Act gave

another 20 years to East India Company to trade in India. Also, this Act was the last step

towards Centralization in British India.

Provisions of the Act, 1833

Company's monopoly to tea trade and China trade was abolished and it was

required to wind up its commercial business. But administrative and political

powers were continued and status quo was maintained.

It made the Governor-General of Bengal as the Governor- General of India and

vested in him all Civil and Military powers. Lord William Bentick was the first

Governor-General of India.

Fourth member was added to Governor General's Council for legislative purposes. Lord

Macaulay was the first incumbent.

The Act vested the Legislative Power exclusively in Governor-General in Council and

deprived of the Government of the Residencies namely, Bombay and Madras of their

legislative functions.

Law Commission under Lord Macaulay was constituted.

Beginning of Central Legislative Council in India.

The Indian Civil Services was founded. It attempted to introduce a system of open

competition for selection of civil servants and affirmed that the Indians should not be

barred from holding any place, office and employment.

It provided that the Company's territories in India were held by it (in trust for His

Majesty, His heirs and successors) .

The Charter Act of 1853

It renewed the powers of the Company and allowed it to retain the possessions of Indian

territories on trust for the British Crown. It was the last of the series of Charter Acts.

Provisions of the Act, 1853 :

It laid foundation of Parliamentary System of Government, the Executive and Legislature

were separated. Legislative Assembly functioned on the model of British Parliament.

Renewed the term of East India Company for an indefinite period that means time period

was not defined in the Act. Reduced the number of Board of Directors from 24 to 18 and

6 out of them were nominated.

By this Act, the Court of Directors were disposed of their power of patronage and higher

posts in administration were thrown open to the competitive examination. A committee

headed by Lord Macaulay was appointed in the year 1854 to enforce this.

The Act for the first time introduced local representation in the Indian (Central)

Legislative Council. Of the six new legislative members of the Governor-General's

Council, four members were appointed by the Local (Provincial) Governments of

Madras, Bombay, Bengal and Agra.

The law member was made the full member of the Governor General's Executive

Council.

Govt. of India Act, 1858

The First War of Indian Independence in 1857, brought the affairs of East India Company to

an end. In 1858, an Act known as the Act for the Good Government of India, abolished the

East India Company and transferred the powers of Government, territories and revenues to

the British Crown. By this Act, the Government of India was placed directly under the

Crown through the Secretary of State for India and all the matters were to be seen by him.


This Act ended the system of double government. The structure of Board of Directors and

Court of Proprietors were abolished. It changed the designation Governor-General of India to

that of Viceroy of India and made the direct representative of the British Crown.Lord Canning,

who was then Governor-General, became the first viceroy of India.

Government of India Act 1858, created a new office, Secretary of State for India with complete

authority over Indian Administration;. He was a member of the British Cabinet and was

representative of the British Parliament. . .

This Act constituted the Secretary of State in Council With a power to sue and being sued in

India and in England. By this Act, a Council of India (15 members) as an advisory body was

established to assist the Secretary of State for India. The Secretary of State was made the

Chairman of the Council.

The Indian Councils Act, 1861:

It was one of the series of reforms initiated by the British Government to reform the British

Administrative set up in India.


Following are the features of the 1861 Act

The Indian Councils Act, 1861, reversed the centralising tendency that started in 1773

and completed with 1833 Act. It restored the Legislative Powers of the Bombay and

Madras Presidencies.

The Act, provided for the establishment of new Legislative Councils for Bengal

(established in 1862), North-Western Frontier Province (established in 1866) and Punjab

(established in i897).

This Act, empowered the Viceroy to make rules and orders for the more convenient

transaction of business in the Council.

It gave a recognition to the Portfolio System, introduced by Lord Canning in 1859.

It authorised the Viceroy to issue ordinances. During an Emergency, he could do so even

without the concurrence of the Legislative Council.

It associated Indians with the law making process for the first time. The Viceroy could

nominate Indians as non-official members in his expanded Council. In 1862, three

Indians were nominated to the Legistative Council.

The Indian Councils Act 1892:

It dealt exclusively with the powers, functions and compositions of the Legislative Councils.


It increased the number of additional (non-official) members in the Central and

Provincial Legislative Councils, but maintained the official majority in them.

Legislative Council was given power to discuss the budget.

Members of Legislative Council were allowed to ask questions to the Executive.

It authorised Viceroy to nominate non-official members Central Legislative

Council on the recommendation of the Provincial Legislative Councils and the

Bengal Chamber of Commerce.

Similarly, it authorised Governors to nominate non-official members in the

Provincial Legislative Councils on the recommendation of the District Boards,

Municipalities, Universities, Trade Associations, Zamindars and Chambers.

Indian Councils Act, 1909

This Act is also known as Morley-Minto Reforms as Lord Morley was the then Secretary of

State for India and Lord Minto was the then Viceroy of India

Features of the Act, 1909 :

As per the Act of 1909, membership of the Legislative Council at the Centre increased

from 16 to 60. For major Provincial Councils, the number was raised to 50 and for

Minor Provinces it was fixed to 30. The additional members were both nominated and

elected. The principle of election was functional representation.

This Act allowed the provincial Legislative Councils to have non-official majority,

however, it retained official majority in the Central Legislative Council.

Satyendra Prasad Sinha became the first Indian to join the Viceroy's Executive

Council. He was appointed as the law member. Because this Act, for the first

time, provided for the association of Indians with the Executive Councils of the

Viceroy and Governors.

The Act also increased the number of Executive Councilors in the three major

presidencies - Bombay, Madras and Bengal.

This Act increased the deliberative functions the Legislative Councils at both the levels.

Law members were allowed to ask supplementary questions, discussion on any matter of

general public interest and budget.

This Act introduced a system of communal representation for Muslims by providing

separate electorate to them. As per this, the Jim members were to be elected only by

muslim voters. Hence, Lord Minto is referred to the Father of Communal electorate in

India

Govt. of India Act, 1919

This Act is also known as the Montague- Chelmsford Reform. Montague was the

Secretary of State for India and Lord Chelmsford was Viceroy of India. It was in line with

the declaration of British Gov 20th August, 1917, that its objective was the gradual

introduction of responsible Government in India.


This Act introduced system of dyarchy, a term derived from the dyarchy, which

means double rule, in the provinces. It was consider substantial step towards

transfer of power to the Indians. The Provincial subjects of administration were to

be divided into two categories:Transferred and Reserved lists.

The transferred subjects were to be administered by the Governor with the help of

ministers responsible to the Legislative Council. Whereas Governor and the

Executive Council were to administer the reserved subject without having any

responsibility towards the Legislature. However the experiment was largely

unsuccessful.

This Act set the Devolution Rules, by which subjects of administratior. divided into

two categories namely, Central and Provincial.

It introduced for the first time, bicameralism and direct elections in country.

Consequently, the Indian Legislative Council was replaced the Bicameral

Legislature consisting of an Upper House (Council of State) an Lower House

(Legislative Assembly). The majority of members of both Houses were to be

chosen by direct election.

The number of Indians in the Governor General's Executive Council was raised to

three in a Council of six members. The Indian members were entrusted with

departments such Law, Education, Labour, Health and Industries.

Communal representation extended to Sikhs, Christians, Anglo-Indians, etc

Secretary of State to be henceforth paid salary out of the British revenue.

It provided for a new office ofthe High Commissioner for India in London and

transferred to him some of the functions of the Secretary of State for India.

Government ofIndia Act 1919, also provided for franchise for those, who were

educated, paid tax and had property.

It made provision for the establishment of a Public Service Commission, which

came into being in 1926 for recruitment of civil servants.

It separated Provincial budgets from the Central budget and Provincial Legislatures

were authorised to enact their budgets.

The Act of 1919, had provided for the appointment of a Commission to review the

provisions of the Act in the light of its working and to extend, modify or restrict

the degree of responsibility of Government of India.

Simon Commission, 1927-30

The Commission was to be appointed in 1929 as per the Provisions of the Act. But

for various political reasons, it was appointed in 1927, with Sir John Simon as its

Chairman. It was also known as Indian Statutory Commission. It had 7 members.

One of its members was Clement Attlee, who subsequently became the British

Prime Minister and oversaw the granting of independence to India and Pakistan in

1947.

Recommendation of the Simon Commission

The commission published its report in 1930. It proposed the abolition of Dyarchy

and the extension of Representative Government in the provinces and the formation

of a federation of British India and Princely States. It also recommended that

separate communal electorates be retained, but only until tensions between Hindus

and Muslims had died down.

The Nehru Report,1928

Lord Birkenhead had challenged Indians to frame a Constitution, which was acceptable

to all. Nehru Report was in response to that challenge. All Party Conference was

therefore, called at Deihi in February 1928 and it came out with a report Within 6 months

(August, '1928) known as the Nehru Report. It was named after Pandit Motilal Nehru, the

Chairman of the Committee, which was constituted to draft the recommendations. The

Indian National Congress ratified the Nehru Report in Its Calcutta session held in

December 1928. The report recommended responsible Governments both at the

Provinces and the Centre.

Govt of India Act, 1935

British Government came up with the Government of India Act of 1935, after series

of efforts in the form of White Papers and Round Table Conferences. The Act was

a significant step towards establishing a completely responsible Government in

India. It was a lengthy document with 321 Sections and 10 Schedules.


This Act made the provision for the establishment of an All India Federation

consisting of Provinces and Princely States as units.

This Act divided the powers between the Centre and units in terms of three

lists :Federal List (59 items), Provincial List (54 items) (iii) Concurrent List

(36 items)

Residuary Powers were vested in Viceroy.

It provided for the adoption of dyarchy at the Centre. Therefore, the Federal

subjects were divided into Reserved subjects and Transferred subjects.

Nonetheless, this Provision of the Act did not come into operation at all.

This Act did away with the Council of India (established by the Government

of India Act of 1858).

This Act provided for the establishment of a Reserve Bank of India.

This Act provided for the establishment of a Federal Court, which was set up

in 1937.

This Act introduced Provincial Autonomy and abolished dyarchy in the

provinces (introduced in 1935).

This Act introduced responsible Governments in provinces, as per this

arrangement, the Governor was required to act with the advice of Ministers

responsible to the Provincial Legislature. This provision came into effect in

1937, though it was discontinued in 1939.

This Act introduced bicameralism with a Legislative Council (Upper House)

and a Legislative Assembly (Lower House) in 6 out of 11 provinces.

It extended communal representation to the depressed classes, women and

labour.

It extended franchise and about 10% of the total population got the voting

right.

It provided for the establishment a Federal Public Service Commission,

Provincial Public Service Commission and Joint Public Service Commission

for two or more provinces.

The proposed All India Federation did not materialise. It was conceptually

inadequate and structurally defective. It could not convince anyone, the

Indian National Congress, the Muslim League, the Hindu Mahasabha or the

Princely States. Muslims opposed the majority rule. Princes opposed the

forces of democracy and Congress opposed Federation by Courtesy.

Government of India Act of 1935 thus remained a lost ideal.

The Act of 1935 as a whole, however, was important. It not only acted as an

Interim Constitution, but also provided a basis for the Constitution of Free

India. The Acts alongwith earlier constitutional reforms, gave direction to

the process of change as well as influenced its contents.

August Offer, 1940

In July 1940, the Congress formally asked England to affirm its adherence to

the goal of independence for India. In response, the Viceroy Lord

Linlithgow issued a statement from Simla on 8th August popularly known as

the August Offer.

The main purpose of this proposal was to secure Congress cooperation

during the World War II. The offer turned down the Congress demand for

setting up the Provisional National Government but promised immediate

expansion of the Viceroy's Executive Council by increasing the number of

Indians.

A Representative Constitution making body to be set up after the war.

A War Advisory Council would be set up consisting of representative of

British India and the Indian States.

In this offer, the Viceroy had promised the Muslim League and other

minorities that the British Government would never agree to a Constitution

or Government in India which did not enjoy their support.

Reaction to August Offer

The congress rejected the August Offer because there was no suggestion for a

National Government and it encouraged Anti-congress forces like the Muslim

League.

Nehru said flatly that the whole conception of Dominion Status for India was as

dead as a door-nail. The Muslim League took the stand that it would not be

satisfied with anything short of the Partition of India.

It was under US pressure after the fall of Rangoon to the Japanese forces that the

British Government decided to send a mission to India.

As the situation of World War II worsened (After Germany invaded Russia)

President Roosevelt of the USA and President Chiang Kai-Shek of China (also the

Labour Party Leader of Britain) put pressure on Churchill to seek the active

cooperation of Indians in the war.

Cripps Proposal, 1942

After the fall of Rangoon to the Japanese, the British Government decided to send a mission,

headed by Sir Stafford Cripps (Member of the British War Cabinet and a left-wing Labourite) to

India, in March 1942. The Congress Working Committee, which met on 11th April, 1942, while

rejecting the Cripps proposals said it would not be satisfied with mere promise for the future,

but with only realisation of freedom.

Proposals in the Draft Declaration

Sir Stafford Cripps spent three. weeks in India (March-April, 1942) and after discussion With

leaders of various political parties, on 29th March, announced his proposals in the form of a

Draft Declaration. The proposals contained in the Draft Declaration were

The aim of the British Government is to provide Dominion Status to India

Holding of fresh election to all the Provincial Legislature after which a Constitution

making body would be set up, after the war, whose members would be elected by the

Provincial Assemblies and nominated by the rulers in the case of the Princely States.

The Constitution is to be framed after the war would be accepted by the British

Government on the condition that any Indian Province not prepared to accept this

Constitution could, if so desired, remain outside the Indian union and negotiate directly

or separately With Britain.

During the war, an Executive Council would be set up and it shall be composed of

leaders of the principal sections of Indian people. But, the British Government would

have complete control over Defence and Military operations.

Wavell Plan, 1945

Since the resignation of Congress Ministries in 1939, there was a kind of political

deadlock in the country. In an attempt to resolve the deadlock in India, in March 1945,

Viceroy went to England for consultation and to create conducive atmosphere for

dialogue ordered on 14th June, 1945, the release of all the Congress Working

Committee members. On this day, Wavell broadcast a plan, popularly known as Wavell

Plan.

The Wavell Plan proposed for the formation of a new Executive Council at the centre, in

which all the members except the Viceroy and Commander in Chief would be Indian.

Moreover, all the portfolios except Defence were to be under the control of Indian

members. In the proposed Executive Council, which was to have 14 members, the

Muslims who constituted only about 25% of the total population of India were given the

right to be over represented by selecting 6 representatives.

Cabinet Mission Plan, 1946

The decision to send Cabinet Mission was taken on 22nd January, 1946. On 19th

February, 1946, the British Prime Minister C. Attlee Government announced in the

House of Lords about the mission and the plan to quit India. A high-powered mission of

three British Cabinet members (Sir Patrick-Lawrence, Secretary of State for India, Sir

Stafford Cripps, President of the Board of Trade and A V Alexander, First Lord of

Admiralty) reached Delhi on 24th March, 1946.

The appointment of the Cabinet Mission was a virtual declaration of India's

independence. Sir Pethick Lawrence announced that the objective of the mission was to

set-up machinery for forming the Constitution of Independent India and to make

necessary arrangements for Interim Government.

The purpose of the mission was to find out ways and means for the peaceful transfer of

power in India, to suggest measures for the formation of a Constitution making

machinery and also to set up Interim Government with following portfolio

s.no. Members Portfolios Held

1. Pt Jawaharalal Nehru External Affairs and commonwealth

2. Sarder Vallabhbhai Patel Home, information and Broadcasting

3. Dr Rajendra Prasad Food and Agriculture

4. Dr John Mathai Industries and Supplies

5. Jagjiven Ram Labour

6. Sardar Baldev Singh Defence

7. CH Bhabha works, Mines and Power

8. Liaquat Ali Khan Finance

9. Adur Rab Nishtar Posts and Air

10. Asaf Ali Railways and Transport

11. C Rajagopalachari Education and Arts

12. II chundrigar Commerce

13. Ghaznafar Ali Khan Health

14. Joginder Nath Mandal Law

3rd June Plan,1947

This is also known as Balkan Plan and Mountbatten Plan. The British Government

proposed this Plan which was announced on 3rd June, 1947 that included following

principles

Principle of Partition of India was accepted by the British Government.

Successor Governments would be given dominion status.

Implicit right to secede from British Commonwealth.

Indian Independence Act, 1947

The Indian Independence Act of 1947, was as an Act of the Parliament of the

United Kingdom that partitioned British India into the two new independent

dominions of India and Pakistan. The Act was formulated by the British

Government after representatives of the Indian National Congress, the Muslim

League, and the Sikh community came to an agreement with the Viceroy of India,

Lord Mountbatten.

It was in line with the announcement made by British Prime Minister Clement

Atlee, on 20th February, 1947. He had announced that British Government would

grant full Self Government to British India by June, 1948.


This Act provided that British rule in India should be over by the midnight of 15th

August, 1947.

This Act provided that British India could be divided into two independent

Dominions of India and Pakistan. Both these Dominions had Right to secede from

the British Commonwealth.

Office of Viceroy was abolished and each dominion was provided a Governor-

General, who was to be appointed by the British Monarch. British Government

was to have no responsibility with respect to the Government of India or Pakistan.

This Act authorised the Constituent Assemblies of both the Dominions to enact

laws for their own territories till the New Constitution was drafted and

implemented. Acts passed by British Parliament were not applicable after 15th

August, 1947.

Office of the Secretary of State for India was abolished.

British Paramountacy over the Indian Princely States and treaty relations with tribal

areas were done away with from 15th August, 1947.

It declared that Indian Princely States were free to join either Dominion of India or

Dominion of Pakistan or may remain independent.

Governor-General of India and the Provincial Governors were made nominal heads

of the states, because they had to Act on the advice of their respective Council of

Ministers.

Appointment to Civil Services and reservation of posts by the Secretary of State for

India was stopped.

The British Monarch was made to remove the title of Emperor of India from the

Royal Style and Titles.

On 15th August, 1947, India became Independent and Lord Mountbatten became

first Governor General of free India with following portfolio

Members Portfolios Held

Pt Jawaharlal Nehru Prime Minister, External Affairs and

Commonwealth Relation; Scientific Research

Sardar Vallabhbhai patel Home, Information and Broadcasting; States

Dr Rajendra Prasad Food and Agriculture

Maulana Abul Kalam Azad Education

Dr John Mathai Railways and Transport

RK Shanmugham Chetty Finance

Dr BR Ambedkar Law

Jagjivan Ram Labour

Sardar Baldev Singh Defence

Raj Kumari Amrit Kaur Health

CH Bhabha Commerce

Rafi Ahmed Kidwai Communication

Dr Shyam Prasad Mukherji Industries and Supplies

VN Gadgil Works, Mines and Power

Making of the Constitution

Introduction

The idea of a Constituent Assembly for India was given for the first time by MN

Roy in 1934. Later in 1935, Congress also demanded to have a Constituent

Assembly to frame the Constitution. August Offer 1940, Cripps Mission 1942,

had the provision of Constituent Assembly. On the recommendation of Cabinet

Mission Plan, a Constituent Assembly was setup in November, 1946.

The Constituent Assembly met for the first time in New Delhi on 9th December,

1946 in the Constitution Hall which is now known as the Central Hall of

Parliament House. The first meeting was held on 9th December, 1946, with

Sachidanand Sinha, as the interim or provisional President. On 11th December,

1946, Dr Rajendra Prasad was elected as the permanent President of the

Constituent Assembly.

The Constituent Assembly took almost three years (2 years, 11 months and 18

days to be precise) to complete its historic task of drafting the Constitution for

Independent India. During this period, it held eleven sessions covering a total of

165 days. Of these, 114 days were spent on the consideration of the Draft

Constitution.

Composition of the Constituent Assembly

As to its composition, members were chosen by indirect election by the

members of the Provincial Legislative Assemblies, according to the scheme

recommended by the Cabinet Mission.

The arrangement was 292 members were elected through the Provincial

Legislative Assemblies; 93 members represented the Indian Princely States; and

4 members represented the Chief Commissioners' Provinces.

Seats were divided among the provinces and princely states and the three

principal communities of Muslims, Sikhs and General in proportion of their

population.

The 93 seats allotted to the Princely states were never filled as they had decided

to stay away from the Assembly.

The 73 seats won by the Muslim League from the provinces to the Constituent

Assembly became empty as the league boycotted the Assembly and Pakistan

was formed.

Objective Resolution of Pandit Nehru

On 13th December, 1946, Pt Jawaharlal Nehru moved the Objectives

Resolution, which laid down the fundamentals and philosophy of the

constitutional structure.

This Constituent Assembly declares its firm and solemn resolve to proclaim

India as an Independent Sovereign Republic and to draw up for her future

governance a Constitution.

According to the Resolution;

o The territories that now comprise British India, the territories that now

form the Indian States and such other parts of India as are outside British

India and the States as well as such other territories as are willing to be

constituted into the Independent Sovereign India, shall be a Union of

them all; and

o The said territories, whether with their present boundaries or with such

others as may be determined by the Constituent Assembly and thereafter

according to the law of the Constitution, shall possess and retain the

status of Autonomous Units, together with residuary powers and exercise

all powers and functions of Government and Administration, save and

except such powers and functions as are vested in or assigned to the

Union or as are inherent or implied in the Union or resulting there from;

and Wherein, all powers and authorities of the Sovereign Independent

India, its constituent parts and organs of Government, are derived from

the people; and

o It shall be guaranteed and secured to all the people of India justice, social

economic and political equality of status, of opportunity and before the

law; freedom of thought, expression, belief, faith, worship, vocation,

association and action, subject to law and public morality; and Wherein,

adequate safeguards shall be provided for Minorities, Backward and

Tribal Areas and depressed and Other Backward Classes; and Whereby,

shall be maintained the integrity of the territory of the Republic and its

sovereign rights on land, sea and air according to justice and the law of

civilised nations; and

o This ancient land attains its rightful and honored placed in the world and

make its full and willing contribution to the promotion of world peace

and the welfare of mankind.

This Resolution was unanimously adopted by the Constituent Assembly on 22nd

January, 1947.

Sessions of the Constituent Assembly

Session Held

First 9th-December, 1946

Second 20th-25th January,1947

Third 28th April – 2nd May, 1947

Fourth 14th-31 st July, 1947

Fifth 14th-30th August, 1947

Sixth 27th January, 1948

Seventh 4th November, 1948-8th January, 1949

Eighth 16th May – 16th June. 1949

Ninth 30th July – 18th September, 1949

Tenth 6th -17th October, 1949

Eleventh 14th-26th November, 1949

Drafting Committee

On 29th August, 1947, the Constituent Assembly setup a Drafting Committee under the

Chairmanship of Dr BR Ambedkar with members Members Alladi Krishnaswamy Ayyar ,N

Gopalaswami Ayyangar ,Dr KM Munshi ,TT Krishnamachari (replaced DP Khaitan) and N

Madhava Rau (replaced BL Mitter) to prepare a Draft Constitution for India. While

deliberating upon the Draft Constitution, the Assembly moved, discussed and disposed of as

many as 2473 Amendments out of a total of 7635 tabled.

The Constitution of India was adopted on 26th November, 1949 and the honourable

members appended their signatures to it on that day. In all, 284 members actually signed

the Constitution. 26th November, 1949 is also mentioned in the Preamble as the date on

which the people of India adopted, enacted and gave to themselves the Constitution.

The Constitution of India came into force on 26th January, 1950. On that day, the

Assembly ceased to exist, transforming itself into the Provisional Parliament of India

until a new Parliament was constituted in 1952.

In addition to the making of the Constitution, It ratified the India's membership of the common

wealth in May 1949.It adopted the national flag on July 22nd, 1947.It adopted the national

anthem on January 24th,1950.It adopted the national song on January 24th, 1950.

OtherCommittees

Name of the Committee Chairman

Committee on the Rules of Procedure Rajendra Prasad

Steering Committee Rajendra Prasad

Finance and Staff Committee Rajendra Prasad

Credential Committee Alladi Krishnaswami Ayyar

House Committee B Pattabhi Sitaramayya

Order of Business Committee KM Munsi

Adhoc Committee on the National Flag Rajendra Prasad

Committee on the Function of the GV Mavalankar

Constituent Assembly

States committee Jawaharlal Nehru

Advisory Committee on Functions Rights, Vallabhbhai Patel

Minorities and Tribal and Excluded Areas

Minorities Sub-Committee HC Mukherjee

Fundamental Rights Sub-Committee JB Kripalani

North-East Frontier Tribal Areas and Gopinath bardoloi

Assam Excluded and Partially Excluded and

Partially Excluded Areas Sub-Committee

Union Powers committee Jawaharlal Nehru

Union Constitution Committee Jawaharlal Nehru

Drafting Committee BR Ambedkar

SALIENT FEATURES OF THE INDIAN CONSTITUTION

Introduction:

The Constitution of India is the Supreme Law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers and duties of government institutions and sets out Fundamental Rights, Directive Principles and the Duties of Citizens. Various Amendments such as 7th, 42nd, 73rd and 74th have introduced substantial changes to the original Constitution. The 42nd Amendment is called as the Mini Constitution as it introduced many changes to the Constitution.

Sources of the Constitution

Some of the features borrowed from foreign countries are:

Features Source Constitution

Parliamentary form of Government, The idea of the Rule of Great Britain Law, Law making Procedure, Office of the CAG, Single Citizenship

Great Britain

Preamble, Fundamental Rights, Judicial Review, Independence of Judiciary, President Impeachment

The USA

Concurrent List, Freedom of Trade Australia

Federation with Strong Centre, Residuary Power with Centre

Canada

Suspension of Fundamental Rights during Emergency

Germany

Fundamental Duties and the Ideal of Justice

Soviet Union

Republic and the ideals of Liberty, equality and Fraternity

France

Procedure established by Law Japan

Distinctive Features of the Constitution:

The following are the salient features of the Indian Constitution

Written and Voluminous Constitution

Unlike British Constitution, Indian Constitution is a Written Constitution, which has been

drafted after a prolonged process of discussion by the Constituent Assembly. In the

original Constitution (1949), there were 395 Articles, 8 Schedules, 22 Parts and a

Preamble. Now, it has about 450 Articles, 24 Parts and 12 Schedules. There are many

reasons for the big size of the Constitution like Influence of 1935 Act, vastness of the

country, Single Constitution for both the Centre and the States etc. Our Constitution not

only contains Fundamental Principles of Governance, but also detailed Administrative

Provisions.

Drawn from various Sources

In order to provide the best features in the Indian Constitution, the Constituent Assembly

drew many features from various Constitutions of the world. Almost Two-third of the

features have been taken from the Government of India Act, 1935. Dr Ambedkar rightly

claimed that Indian Constitution has been prepared after ransacking all the Constitutions

in the world.

Parliamentary Democracy

Our Constitution has adopted Parliamentary System of democracy, so as to represent the

pluralist tradition and interest of the country. In a Parliamentary Form, Members of the

Legislature provides the Executive. The Council of Ministers is collectively responsible to

the Legislature. They enjoy power till they have support of the Lok Sabha. Parliamentary

Form of Government is characterised with presence of Nominal and Real Executives,

collective responsibility of Executive to the Legislature, dissolution of Lower House,

leadership of Prime Minister and Chief Minister. Though, Indian Parliamentary Form is

based on the British Model, but it has some differences, e.g., unlike British Parliament,

Indian Parliament is not sovereign. Also, unlike British Crown, Indian President is not

hereditary.

Federal Polity with Unitary Colour

The Indian Constitution provides a Dual Polity with the Union at the Centre and the States

at the periphery, each enjoying powers clearly demarcated by the Constitution. Indian

federation has many federal features like Written Constitution, Rigidity of the

Constitution, Independence of Judiciary, Bicameralism etc.

Schedule VII provides the division of subjects into three lists namely, the Union List, the State

List and the Concurrent List, defining the Legislative and Executive Powers of each level of

Government. The Union Government reserves the right to make laws in areas specified on the

Union List, the State Governments are allowed to make Laws in areas specified in the State list

and Laws in areas listed in the Concurrent List may be made at either a State or Federal level.

The Supreme Court is the Apex authority to interpret the Constitution of India as well as

decide on disputes arising out of Centre-State relations.

Although, Indian Polity

has several federal features, but it has many unitary features also like Single Constitution,

Uniform and Single Citizenship, Power of Parliament to change the territorial extent of States

even without the consent of the State concerned (Article 3). Also, if the President declares

National Emergency for the whole or part of India under Article 352, the Parliament can make

laws on subjects, which are otherwise, exclusively under the State List. The residuary powers

are with the centre. Judges of the High Courts are appointed by the President in consultation

with the Governors under Article 217 and the States do not have any role in this. Even Article 1

declares India as a Union of States. Looking at these features KC Wheare called Indian

Federation as Quasifederal, Morris Jones called it as Bargaining Federalism and Granville

Austine called it Cooperative Federalism.

Rigid as well as flexible Indian Constitution is blend of both rigidity and flexibility. Rigidity comes from some of rigorous procedures provided for amending some of the features of the Constitution. Amendments to the constitution are made by Indian Parliament, the procedure for, which is laid out in Article 368. It provides two kinds of Amendments:

1. Amendments with special majority and ratification by One-half of states. 2. Amendments with special majority only.

Most of the federal features of Indian Constitution have to be passed by special majority and ratification by 50% of the states. Other features can be amended in a flexible manner that means ratification by states is not required. Welfare State A Welfare State is one that provides social justice to all its citizens. It is based on the principles of equality of opportunity, equitable distribution of wealth and public responsibility for those unable to avail themselves of the minimal provision for a good life. Indian Constitution has

many features that aim at establishing a Welfare State. Judicial Supremacy and Integrated Judiciary Our Constitution provides for a single integrated judiciary with Supreme integrated judiciary with Supreme Court at its Head. Each State has a high Court (except few States, which have common High Court) with administrative control over the sub-ordinate judiciary. The single system of courts enforces both Central as well as State laws. This feature is unlike USA where, federal court enforces only Federal Laws. The Constitution provides for provisions to maintain independence of the judiciary such as security of their service, prohibition on discussion on the conduct of Judges in parliament except during the procedure for removal, charging the salaries of Judges on Consolidated Fund of India etc. Fundamental Rights Fundamental Rights are defined as basic human freedoms, which every Indian citizen has the

Right to Enjoy for a proper and harmonious development of personality. Fundamental Rights

are contained in Part III of Indian Constitution. There are Six Rights in this Part, earlier there

were Seven Rights, but as per 44th Amendment Act, Right to Property was deleted as a

Fundamental Right and made a Legal Right under Article 300A. The Fundamental Rights

conferred by the Constitution are broadly classified under the following groups

Right to Equality ,Right to Freedom , Right against Exploitation ,Right to Freedom of Religion,

Cultural and Educational Right sand Right to Constitutional Remedies .

All the Fundamental Rights are universally applicable to all citizens, irrespective of race, place

of birth, religion, caste, creed, color or gender. They are enforceable by the courts, subject to

certain restrictions. Fundamental Rights enjoy a very high importance in the Constitution and a

citizen can directly approach the Supreme Court for their enforcement.

Schedules of the Indian Constitution

Schedules Features

First This lists the States and Territories of India, lists any changes to their borders

and the laws used to make that change.

Second This lists the salaries of officials holding public office, Judges and Comptroller

and Auditor-General of India.

Third Forms of Oaths - This lists the oaths of offices for elected officials and Judges.

Fourth This details the allocation of seats in the Rajya Sabha (the Upper House of

Parliament) per State or Union Territory.

Fifth This provides for the administration and control of Scheduled Areas and

Scheduled Tribes.

Sixth Provisions for the administration of Tribal Areas in Assam, Meghalaya, Tripura

and Mizoram.

Seventh The Union, State and Concurrent Lists.

Eighth The official languages.

Ninth Originally, Articles mentioned here were immune from judicial review on the

ground that they violated Fundamental Rights

Tenth Anti-defection provisions for Members of Parliament and Members of the

State Legislatures.

Eleventh Panchayat Raj (Rural Local Government).

Twelfth Municipalities (Urban Local Government).

Parts of the constitution:

The description of the Parts of the Constitution is as follows:

Part-I (Articles 1-4) Deals with territory of India Formation of new States, Alterations, Names

of existing States.

Part-II(Articles 5-11) Deals with various Rights of Citizenship.

Part-III(Articles 12-35) Deals with Fundamental Rights of Indian Citizens. (Article 31- dealing with

the Right to Property was deleted by 44th Amendment).

Part-IV (Articles 36-51) Deals with Directive Principles of State Policy.

Part-IVA (Article 52A) Added by 42nd Amendment in 1976 contains the Duties of the Citizens.

Part-V (Articles 52-151) Deals with Government at the Union Level (Duties and Functions of Prime

Minister, Minister, President, Attorney General, Parliament- Lok Sabha and

Rajya Sabha, Comptroller and Auditor General).

Part-IV (Articles152-237)

Deals with Government at State Level (Article 152 exempts Jammu and

Kashmir from the category of ordinary states.) (Duties and Functions of

Chief Minister and his Ministers, Governor, State Legislature, High Court,

Advocate General of the State).

Part-VII (Article 238) Deals with States was replaced in 1956 by the 7th Amendment.

Part-VIII (Articles 239-241) Deals with Union territories.

Part-IX and Part IX-A

Consists of 2 Parts

Added by 73rd Amendment in 1992. Contains a new schedule Schedule

Eleven. It contain 29 subjects related to Panchayati Raj. (They have been

given administrative powers).

Part IX-B

The Cooperative Societies

Part-X (Articles 244, 244A)

Deals with Scheduled and Tribal Areas.

Part-XI (Articles 245-263)

Deals with relation between Union and States.

Part-XII (Articles 264-

300A) Deals with distribution of Revenue between Union and States,

Appointment of Finance Commission (Article 280), Contracts Liabilities etc.

Part-XIII (Articles 301-307)

Relates to Trade, Commerce and Intercourse within the Territory of India.

Part-XIV

Deals with UPSC and Public Service Commission.

Part-XIV A (Articles 323A,

323B) Deals with Tribunals.

Part-XV (Articles 324-329)

Deals with Elections (Also Election Commission).

Part-XVI (Articles 330-342)

Deals with special provisions for Scheduled Castes and Scheduled Tribes

and Anglo-Indian Representation.

Part-XVII (Articles 343-

351) Relates to Official Language.

Part-XVIII (Articles 352-

360) Deals with Emergency Provisions.

Part-XIX (Articles 361-367)

Exemption of Criminal Proceeding for their Official Acts of President and

Governors.

Part-XX (Article 368)

Deals with Amendment of Constitution.

Part-XXI (Articles 369-392)

(Article 369 gives temporary powers to the Parliament to make laws for

State List) (Article 370 contains temporary State Provisions of Jammu and

Kashmir- Restrict the Parliament to make laws for that list) (Articles 371 A,

371 B, 371 C, 371 D, 371 E, 371 F, 371 G, 371 Hand 3711 relates to Special

Provisions for Maharashtra, Nagaland, Assam, Manipur, Andhra, Sikkim,

Mizoram, Arunachal Pradesh and Goa)

Part-XXII (Articles 393-

395) Concerns the short title, commencement and repeal of the Constitution.

Directive Principles of State Policy

The Directive Principles of State Policy are guidelines to the Central and State Governments of

India, to be kept in mind, while framing Laws and Policies. These Provisions, contained in Part

IV of the Constitution of India, are not enforceable by any Court, but the Principles laid down

therein are considered fundamental in the Governance of the country, making it the duty of

the State to apply these Principles in making Laws to establish a just society in the country. The

Principles have been inspired by the Directive Principles given in the Constitution of Ireland

and also by the Principles of Gandhism and relate to social justice, economic welfare, foreign

policy and legal and administrative matters.

Fundamental Duties

The Fundamental Duties of citizens were added to the constitution by the 42nd

Amendment Act in 1976, upon the recommendations of the Swarna Singh Committee that

was constituted by the government earlier that year, originally ten in number, the

Fundamental Duties were increased to eleven by the 86th Amendment in 2002, which

added a duty on every parent or guardian to ensure that their child or ward was provided

opportunities for education between the ages of six and fourteen years.

The other Fundamental Duties obligate all citizens to respect the National Symbols of India,

including the Constitution, to cherish its heritage, preserve its composite culture and assist in

its defense. They also obligate all Indians to promote the spirit of common brotherhood,

protect the environment and public property, develop scientific temper, abjure violence, and

strive towards excellence in all spheres of life. Citizens are morally obligated by the

Constitution to perform these duties. However, like the Directive Principles, these are non-

justifiable, without any legal sanction in case of their violation or non-compliance.

Secular Polity

The Constitution provides for a State, which has no official Religion and separates State and

Religion from each other. It establishes a State which has an equidistant policy towards all

religions that means it follows the philosophy of Sarva Dharma Sambhav.

Also, all the minorities both religious and linguistic are given special constitutional protection,

so as to preserve the diversity existing in our country. It should be remembered that the term

Secular was added as part of Constitution, 42nd Amendment Act.

Secular Features of our Constitution

Term Secular exists in our Constitution.

Right to equality is provided to all citizens irrespective of their religion.

Equal opportunity is guaranteed.

All sections of people have been given freedom to manage their religious affairs.

Religious and educational rights of minorities have been recognized.

Uniform civil code is aimed for.

Universal Adult Franchise

The Indian Constitution adopts Universal Adult Franchise as a basis of election to the Lok

Sabha and the State Legislative Assemblies. Every citizen who is above 18 years of age (earlier

it was 21 years but reduced as per 61st Amendment Act, 1988) has the right to vote without

any discrimination of caste, race, religion, sex, literacy etc. Universal Adult Franchise upholds

the principle of equality enables minorities to protect their interest and opens up new hopes

and vistas for weaker sections. This provision exists in Article 326 of our Constitution. The

Constitution also preserves the principle of 'one man, one vote'.

Single Citizenship

Our Constitution provides for a Federal and Dual Polity, but it provides single citizenship for

the country. Unlike USA, there is no State Citizenship. Every Indian enjoys the same Rights of

Citizenship without consideration of the State he belongs to. But there is an exception to this

general principle, Indian State of Jammu and Kashmir has its own Constitution as well as Laws

related to Citizenship.

Emergency Provisions

Part XVIII of Indian Constitution deals with emergency provisions. The Constitution envisages

three types of emergencies i.e., National Emergency (Article 352), State Emergency (Article

356) and Financial Emergency (Article 360). During Emergency, Central Government becomes

all powerful and the States come under the control of the Centre. It converts the federal

structure into a unitary one without the Amendment of the Constitution. Till now, Financial

Emergency has never been imposed in our country.

Constitutional Bodies

The Constitution provides for certain independent bodies such as Election Commission to

ensure free and fair elections in our country, Comptroller and Auditor General (CAG) to audit

the accounts of Central and State Government, Union Public Service Commission (UPSC), State

Public Service Commission, Joint Public Service Commission to conduct examinations for

recruitment to all India Services, Central and State Services etc.

Three- Tier Government

Originally Indian Constitution provided only for Two-Tier Government. Though Article 40

contained under Directive Principles of State Policy did talk about organisation of Village

Panchayat, but as it was not under enforceable part of the Constitution, this provision was not

effectively implemented. It was up to the States to take efforts to empower people at the

grass root level.

By the 73rd and 74th Amendment Act of 1992, Third-Tier of Governments (Panchayats and

Municipalities) was given Constitutional Recognition. It also added Part IX and IXA respectively,

having detail provisions related to organisation of Village Panchayat. This Amendment also

added New Schedules 11 and 12 to the Constitution, which contains power and responsibilities

of Panchayats and Municipalities.

The Preamble to the Constitution

Preamble is normally known as preface or introduction to the Constitution, which contains the spirit or

essence of the Constitution. The Preamble to the Constitution sets out the philosophy on

which the political system of our country rests; it clearly establishes the main objectives

of the Indian Constitution. Constitution of America was the first Constitution in the

world to begin with a Preamble. India, like some other countries, also followed this

practice.

The Preamble

The Preamble of Indian Constitution is based on the objective resolution, drafted and

moved by Pandit Jawaharlal Nehru and passed by the Constituent Assembly. As

observed by the Supreme Court of India, the Preamble is a key to unravel the minds of

the makers of the Constitution. Preamble embodies the ideals and aspirations of the

people of India. Preamble also contains the enacting clause, which brings the

Constitution into force.

It has been amended by the 42nd Constitutional Amendment Act (1976), which added

three new words socialist, secular and integrity. Like the Directive Principles of State

Policy, the Preamble is also non-justifiable in nature and cannot be enforced in a Court

of Law. It does not provide definite and real power to the three organs of the State

(Legislature, Executive and Judiciary), nor limits their powers under the provisions of

the Constitution.

Components of the Preamble

The Preamble shows following four ingredients or components

Source of Authority of the Constitution - the Preamble states that the Constitution

derives its authority from the people of India.

Date of Adoption of the Constitution- It stipulates 26th November, 1949, as the date of

adoption of the Constitution.

Nature of Indian State- It states India to be a Sovereign, Socialist, Secular, Democratic

and Republican State.

Objectives of the Constitution- It specify Justice, Liberty, Equality and Fraternity as the

objectives of Indian Constitution.

Can Preamble be amended?

In the historic Keshavanand Bharti Case (1973), honorable Supreme Court overturned its

earlier view (as opined in Berubari Case) and held that the Preamble can be amended under

Article 368, subject to the condition that no amendment is done to the basic features.

The Preamble has been amended only once so far, in 1976, by the 42nd Constitutional

Amendment Act, which has added three new words-socialist, secular and integrity to the

Preamble. This Amendment was held to be valid as it was assumed that these amendments

are clarifying and qualifying in nature. They are already implicit in the Preamble.

The Preamble as in our Constitution

We, THE PEOPLE OF INDlA, having solemnly resolved

to constitute India into a SOVEREIGN. SOCIALIST, SECUlAR. DEMOCRATIC. REPUBLIC and to

secure to , all its citizens; , JUSTICE, social. economic and political; LIBERTY of thought,

expression. belief. faith and worship; EQUALITY of status and of opportunity; and to promote

among them all FRATERNITY assuring the dignity of the individual and the unity and integrity

of the nation; IN OUR CONSTITUENT ASSEMBLY this 26th day of ' November, 1949 do HEREBY

ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

Terms used in Preamble

Some important terms used in Preamble are

Sovereign

Sovereignty is the characteristic of the State. It emphasises that there is no authority

inside or outside India on which the country is in any way dependent. It has a free

government, which is directly elected by the people and makes laws that govern the

people. Popular sovereignty is also one of the basic structures of Constitution of India.

People have supreme right to make decisions. No external power can dictate

Government of India.

It is a modern notion of supreme political authority within a territory. According to

some Constitutional experts, the word people in the preamble means representatives

of the people in the Parliament and thus implies Parliamentary sovereignty in an

indirect democracy like ours.

Indian Parliament is not sovereign as ours is a federal country where the powers of

Parliament are restricted and shared with the States. Also, Laws made by the

Parliament are subject to the Provisions of the Constitution, which means that laws not

in conformity with the Constitution are not valid. In our country, the Constitutional

validity of any law is decided by the Supreme Court. Though, India is a member of

various organisations like Commonwealth, United Nations etc, but it in no way

constitutes a limitation on her sovereignty.

Socialist

The word Socialist was added to the Preamble by the 42nd Amendment Act I in 1976, but even

before that the Constitution had socialistic elements in the , form of Directive Principles of

States Policy. Socialism means ownership of productive forces by the Government, so that

they benefit people equally.

India has adopted Democratic Socialism, which is different from Communist Socialism. Our

aim is to minimise inequality and try to achieve socialistic pattern of society through

democratic means. Distributive justice is part of socialistic pattern of development. Since 1991,

we have allowed greater role I to the market forces through the New Economic Policy, 1991,

but our constitutional goal still remains the same, i.e., to provide distributive justice through

democratic means.

Secular

The term Secular means separation of religion from politics because religion is private,

while politics is public. If religion and politics are mixed then they may create social

tension. India is not secular in the sense the Western countries are, due to its

distinctive socio-cultural environment.

In Indian context, secular state does not mean that India is non-religious or irreligious

or anti-religious, but simply means that the state in itself is not religious and follows

the Ancient Indian principle of Sarva Dharma Samabhava. It also means that the state

shall not discriminate against the citizens in any way on the basis of religion; it is

equidistant from all the religions.

This is ensured in particular by two articles in the part on Fundamental Rights. While

Article 15 prohibits discrimination by state on several grounds including religion,

Article 16 ensures equality of opportunity for all in public employment without

discrimination on grounds such as religion.

All individuals in our country are free to practice the religion of their choice. The state

regards religion to be the private affair of a person including the right to believe or not

to believe in a religion. The term Secular too was added by the 42nd Amendment Act.

Democratic

A democratic political system is one, which believes in popular sovereignty. Democracy

is basically of two type- Direct and Indirect democracy. Direct democracy is a form of

Government, in which people vote on policy initiatives directly, as opposed to a

representative democracy, in which people vote for representatives who then vote on

policy initiatives. There are four devices of direct democracy i.e., Referendum,

Initiative, Recall and Plebiscite.

Our country follows a system of Representative Democracy, where the MPs and MLAs

are elected directly by the people. Through 73rd and 74th Constitutional Amendment

Acts, 1992, efforts are being made to take democracy to the grassroots through

Panchayats and Municipalities. Preamble envisages not only political democracy, but

also social and economic democracies.

Republic

Democracy is of two types, namely, Republic and Monarchy. Unlike Britain, India is a

Republic, which means that there exists no hereditary ruler in India an, all the

authorities of the state are directly or indirectly elected by the people. India has an

elected head called, the President. He/she is elected indirectly for a fixe tenure of five

years.

Preamble - Part of the Constitution

In Berubari Union Case (1960), Supreme Court despite, observing that Preamble shows

the general purpose: behind the several provisions in the Constitution and thus a key

to the minds of the makers of the Constitution, held that Preamble is not a part of

Constitution.

In Keshavanand Bharati Case (1973), Supreme Court rejected its opinion expressed in

Berubari Case am held that Preamble is a part of the Constitution. In S.R.Bommai Case,

1993, supported its View of Keshavanand Bharati Case (1973).

In this case, Justice Ramaswamy observed that the Preamble of the Constitution is an

integral part of the constitution. In LIC of India Case (1995), Supreme Court again held

that the Preamble is an integral part of the Constitution.

Like any other Part of the Constitution, the Preamble was also enacted by the

Constituent Assembly, but, after the rest of the Constitution was already enacted. The

reason for inserting the Preamble at the end was to ensure that it was in conformity

with the Constitution as adopted by the Constituent Assembly.

In Keshavanand Bharati Case (1973), Supreme Court also propounded the concept of

basic features and stated that democratic form of government, federal structure, unity

and integrity of the nation, secularism, socialism, social justice and judicial review are

basic features of the Constitution.

Cases Related to Preamble

Berubari Union Case (1960)- Supreme Court held that Preamble is not a part of Constitution.

Kesavananda Bharati Case (1973)-Supreme Court held that Preamble is a part of the

Constitution.

S.R.Bommai Case (1993)- Regarding the dismissal of three BJP Governments in States of

Rajasthan and Himachal Pradesh, Justice Ramaswamy observed that the Preamble of the

Constitution is an integral part of the Constitution.

L1C of India Case (1995) -Supreme Court again held that the Preamble is an integral part of the

Constitution.

Values enshrined in Preamble

The Preamble states that the objectives to be secured to every citizen are ….

Justice

Indian Constitution aims for three kinds of justice i.e., social, economic and political.

Political Justice in India is guaranteed by universal adult suffrage without any sort of

qualification. Social Justice means absence of discrimination on the grounds of caste,

religion, color, creed, sex or language. It is ensured by abolishing any title of honour

(Article 18) and untouchability (Article 17). Economic Justice means non-discrimination

between people on economic grounds. It also means removal of economic inequality. It

is guaranteed primarily through the directive principles. Idea of justice has been taken

from the Russian Revolution.

Liberty

It is bulwark of democracy. Our Constitution provides liberty of thought, expression,

belief, faith and worship. Liberty is an essential attribute of a free society that helps in

the fullest development of mental and spiritual abilities of an individual. The Indian

Constitution guarantees six types of democratic freedoms to individuals under Article 19

and Right to Freedom of Religion under Articles 25 to 28. However, liberty does not

mean that an individual is free to do whatever he wants, but he has to enjoy his rights

within constitutional limits. The ideals of liberty, equality, fraternity have been taken

from the French Revolution.

Equality

The Preamble mentions two types of equality i.e., Equality of Status and Equality of

Opportunity. The fruits of liberty cannot be fully realised until there is an equality of

status and opportunity. As per Article 15 of our Constitution, any discrimination by the

State only on the basis of religion, caste, sex or place of birth, is illegal. We have also

abolished untouchability (Article17) and titles of honour (Article 18). However, the

Parliament has passed certain laws for the SCs, STs, OBCs, to bring the, thus far

neglected sections of the society into the national mainstream.

Fraternity

It is enshrined in the Constitution means a sense of brotherhood prevailing amongst all

the sections of the people. This is sought to be achieved by making the State secular,

guaranteeing fundamental and other rights equally to people of all sections, and

protecting their interests. However, fraternity is an evolving process and by the 42nd

Amendment, the word Integrity was added, thus giving it a broader meaning.

IINDIA AND ITS TERRITORY

There was no unanimity in the constituent assembly with regard to the name of the country

Articles 1 to 4 under Part I of the Constitution specifies the provisions related to the

union and its territory. Article 1 says, India, that is Bharat, shall be a Union of States

(rather than a Federation of States.) Dr BR Ambedkar explained the significance of the

term Union, indicating two things-first, Indian Union is not a result of agreement of

independent and sovereign states and second, the Units/States do not have right to

break away from the Union. As described in the Article 1, the territory of India can be

classified into three categories.

1. Territories of States 2. Union territories 3. Territories that may be acquired by

Government of Indian

India: Union of States

There was a debate in the Constituent Assembly over the name of our country, few

members were in favour of India whereas, others preferred Bharat. To avoid the

conflict, both of these names were adopted, which is clearly reflected in Article 1 of

our Constitution which refers to our country as India that is Bharat. The country is an

integral whole, divided in different States for the matter of administrative

convenience.

The names of all the states and Union Territories and their territorial extent are

mentioned in the First Schedule. At present, there are 28 States and 7 Union

Territories as mentioned in the First Schedule of the Constitution. The Provisions of

the Constitution pertaining to the States are applicable to all the States (except

Jammu and Kashmir) in the same way.

However, there are some special Provisions under Part XXI, applicable to the States of

Maharashtra, Gujarat, Nagaland, Assam, Manipur, Andhra Pradesh, Sikkim, Mizoram,

Arunachal Pradesh and Goa overriding the General Provisions relating to the States as

a class. Additionally, the Fifth and Sixth Schedules hold separate provisions with

respect to the administration of Scheduled Areas and Tribal Areas within the States.

There is a distinction between Territory of India and Union of India. Territory of India

is a wider facet of the Union of India because the latter includes only states, while the

former includes not only the States, but also Union Territories and Territories that

may be acquired by the Government of India at any future time.

Government of India independently provides for provisions of administration for

territories and States of India. The States are the members of the federal system and

share a distribution of powers with the centre. The Union Territories and the acquired

territories, on the other hand, are directly administered by the Central Government.

India being a sovereign state can acquire foreign territories according to the methods

recognised by international law, i.e., cession (following treaty, purchase, gift, lease or

plebiscite), occupation (hitherto unoccupied by a recognised ruler), conquest or

subjugation. India acquired a number of foreign territories as Dadra and Nagar Haveli,

Goa, Daman Diu, Pondicherry and Sikkim since the begin of the Constitution.

Part I

(The Union and Its Territory)

Article 1 Name and territory of the union.

Article 2 Admission or Establishment of New States.

Article 3 Formation of New States and Alteration of Area:

Boundaries or Names of Existing States.

Article 4 Laws made under Articles 2 and 3 to provide for the Amendment of the First and

the Fourth Schedules and supplemental, incidental and consequential matters.

Admission or Establishment of New States

Article 2 says that Parliament may, by h admit into the Union or establish new States

(such terms and conditions as it thinks fit. Artie 2 therefore, authorises Parliament, to

admit ne States in the Union and establish new States.

The first refers to the admission of States, which are duly formed and established and

are, already in existence. The second refers to the admission and formation of a State,

which was not existence before. Notably, Article 2 only relate to those States that are

not part of the Union of India.

Formation of New States

Article 3 relates to the formation of or changes in the existing states of the Union of

India. In other words, Article 3 deals with the internal. Re-adjustment of the territories

of the constituent States of the Union of India. One can understand Article 3 by

referring to examples like formation of new State from existing states like Jharkhand

from Bihar, Uttarakhand from Uttar Pradesh etc.

Powers with the Parliament to reorganise the States under Article 3

Form a new state by separation of territory from any State or by uniting two more states or

parts of States or by uniting any territory to a part of any State.

Increase the area of any State,

Diminish the area of any State,

Alter the boundaries of any State and

Alter the name of any State.

Three conditions in this regard under Article 3 are Firstly; A Bill contemplating the above

changes can be introduced in the Parliament only with the prior commendation of the

President. Secondly, before Recommending the Bill, the President has to refer the same to the

State Legislature concerned for expressing its views within a specified period. Thirdly, the

Parliament or the President is not bound by the views of the Legislature and may accept or

reject the proposal, even if the views were received on time. This is why India is described by

many as an indestructible Union of destructible States. In other words, the Union Government

can alter the boundaries of the State in contrary to the United States of America, where the

boundary of States cannot be altered by the Federal Government without the consent of the

States. Hence, the USA is described as an indestructible Union of indestructible States.

Laws made Under Article 2 and 3

Article 4 states that laws made for admission or establishment of new States under Article 2

and formation of new States and alteration of areas, boundaries or names of existing States

under Article 3 are not to be considered as amendments of the Constitution under Article 368.

This implies that such laws can be passed by a simple majority and by the ordinary legislative

process. However, Article 4 raised a very interesting and important question relating the power

of the Parliament to cede (give up or grant) Indian Territory to a foreign country. The Central

Government's decision to cede a part of the territory known as the Berubari Union (Paschim

Banga) to Pakistan led to political agitation and controversy and thereby necessitated the

presidential reference. In this case, the Supreme Court held that the power of Parliament to

diminish the area of a State does not cover cession of the Indian Territory to a foreign country.

Hence, Indian Territory can be ceded to a foreign State only by amending the Constitution

under Article 368. Consequently, the 9th Constitutional Amendment Act (1960) was enacted to

transfer the said territory to Pakistan.

Formation of States after 1950s

Andhra Pradesh Formed by the State of Andhra Pradesh Act, 1953 by carving out some

areas from the State of Madras.

Kerala Formed by the State Reorganisation Act, 1956. It comprised

Travancore and Cochin areas.

Formed from the Princely State of Mysore by the State Reorganisation

Act, 1956. It was renamed Karnataka in 1973 from Mysore.

Karnataka The State of Bombay was divided into two States namely,

Maharashtra and Gujarat by the Bombay Reorganisation Act, 1960.

Gujarat and

Maharashtra

State of Nagaland Act, 1962 created the State of Nagaland, which was

carved out of Assam (now Asom).

Nagaland It was carved out from the State of Punjab by the Punjab

Reorganisation Act, 1966.

Haryana It was carved out from the State of Punjab by the Punjab

Reorganisation Act, 1966.

Himachal State of Himachal Pradesh Act, 1970 elevated the Union Territory of

Himachal Pradesh to the status of State.

Meghalaya Gujarat and Maharashtra Nagaland Himachal Pradesh First carved out

as a sub-state within the State of Assam by 23rd Constitutional

Amendment, 1969. Later, in 1971, it received the status of a full-

fledged State by the North-Eastern Areas Reorganisation Act, 1971.

Manipur and Tripura Both these States were elevated from the status of Union Territories

by the North-Eastern Areas Reorganisation Act, 1971.

Sikkim Sikkim was given first the status of associate State, by the 35th

Constitutional Amendment Act, 1974. 36th Amendment Act, 1975,

uplifted its status to a full State in 1975. From 1947 to 1974, Sikkim

was a protectorate of India, with India being responsible for its

defence, external affairs and communications.

Mizoram It was uplifted to the status of a full state by the state of Mizoram

Act, 1986.

Arunachal Pradesh It received the status of a full State of Arunachal Pradesh Act,

Goa It was separated from the Union Territory of Goa, Daman and Diu and

was made a full-fledged State by the Goa, Daman and Diu

Reorganisation Act, 1987, But Daman and Diu remained as Union

Territory till date.

Chhattisgarh Created, as State of India, by the Constitutional Amendment Act

2000. By dividing Madhya Pradesh on 1st November, 2000.

Uttarakhand Earlier known as Uttaranchal was formed by the Constitutional

Amendment Act 2000 by dividing Uttar Pradesh on 9th November,

2000. In January 2007, the name of the State was officially changed

from Uttaranchal to Uttarakhand.

Jharkhand Created as 28th State, by the Constitutional Amendment Act 2000, by

dividing Bihar on 15th November, 2000.

Creation of a New State

Following steps are to be following the creation of a was state

A law has to be passed by the Parliament for formation of a new State or altering the area of a

State or altering the names of the existing States.

No Bills for the formation of new States or alteration of the boundaries or names or the existing

states shall be introduced in either house of the Parliament, except on the recommendation of

the President,

The president, before introducing the Bill in the Parliament, shall refer it to the concerned State

Legislature for its opinion within a specified time limit, the time limit may be extended.

The Bill may be introduced even if the opinion has not come.

The Parliament is not bound to accept or act upon the views of the State Legislature.

Fresh reference to the State Legislature every time on an Amendment to the Bill is not

necessary.

Reorganisation of States

At the time of independence, had two types of political units, i.e., the British Provinces and the

princely States. Two independent and separate dominions of India and Pakistan were created

by the Indian Independence act (1947). Three options were available to the princely States

namely, joining India, joining Pakistan or remaining independent.

Of the 552 Princely States situated within the geographical boundaries of India only Hyderabad,

Junagarh and Kashmir refused to join India, others were integrated soon after independence.

With India under different circumstances.

Category of States in 1950

When Constitution came in force, it contained a fourfold classification of the States of the

Indian Union-Part A, Part B, Part C and D State.

Part A States 9 erstwhile Governor's provinces of British India.

Part B States 9 erstwhile Princely States with Legislatures.

Part C States Erstwhile Chief Commissioner Provinces of British-India and some of the

erstwhile Princely States, total 10 in number.

Part D States The Andaman and Nicobar Islands were Kept as the Solitary State.

Committees for State Reorganisation

Dhar Commission

There was a demand from different regions, mainly South India, for reorganisation of

States on linguistic basis. Consequently, in June 1948, the Government of India

appointed the Linguistic Provinces Commission under the Chairmanship of SK Dhar to

study the feasibility of organising States on linguistic basis. The Commission rejected

the linguistic basis of reorganisation of States and it recommended the reorganisation

of States on the basis of administrative convenience.

JVP Committee

The Dhar Commission's report created much resentment and led to the appointment

of another Linguistic Provinces Committee in December 1948 to examine the linguistic

basis of state reorganisation. This Committee consisted of Jawaharlal Nehru,

Vallabhbhai Patel and Pattabhi Sitaramayya and hence, was popularly known as JVP

Committee. This Committee also rejected language as the basis for reorganisation of

States.

However, in 1953, the Government of India was forced to create the first linguistic

State, known as Andhra State with Kurnool as its capital, by separating the Telugu

speaking areas from the Madras state after the death of Mr Potti Sreeramulu, who was

fasting for a separate state based on the linguistic basis (Telugu-speaking) people of

Madras State.

State Reorganisation Committee (1953)

Chairman Fazal Ali

Members 1. Hridaynath Kunzru

2. KM Panikkar

Highlights

The Commission in its report, submitted in 1955, accepted language as the basis of the

reorganisation of the States.

It suggested the reorganisation of 27 States of various categories into 16 States and 3

Union Territories.

The State Reorganisation Act, 1956, was passed by the Parliament to give effect to the

recommendations of the Commission.

Fazal Ali Commission

The formation of Andhra Pradesh deepened the demand from other regions for

creation of States on linguistic basis. This compelled the Government of India to

appoint a three-member States Reorganisation Commission under the Chairmanship of

Fazal Ali with KM Panikkar and HN Kunzru as members to revisit the whole question.

It submitted its report in September, 1955 and largely accepted language as the basis

of reorganisation of States. It regarded unity of nation as the primary consideration in

any redrawing of the country's political units. Fazal Ali Commission acknowledged four

major factors that can be taken into account in any scheme of reorganisation of States

Linguistic and cultural homogeneity.

Preservation and strengthening of the unity and security of the country.

Financial, economic and administrative considerations.

Planning and promotion of the welfare of the people in each

state as well as of the Nation as a whole.

Fazal Ali Commission's recommendations were broadly accepted and it was followed

by the States Reorganisation Act (1956) and the 7th Constitutional Amendment Act

(1956). These changes abolished the distinction between Part A and Part B States and

Part C States were abolished. After reorganisation, 14 States and 6 Union Territories

were created on 1st November, 1956.

Advantages of Small States

Advantages of small States are

It will raise administrative efficiency leading to proper utilisation of resources.

Development will take place and regional inequalities will become slender.

Small States are more successful in financial management.

The popular demands, needs and problems of the region may be addressed efficiently.

There will be greater competition among States for more development.

Smaller States will have more homogeneous preferences.

Disadvantages of Small States

Disdvantages of small States are

It will increase the burden of administrative expenses, which could have been utilised for

development work.

It will open the Pandora's box creating demand for more States.

Smaller States do not necessarily show better economic performance e.g., North-

Eastern States.

The disputes may lead to more and more demand for special packages for development

by the parent State.

It may increase inter-state conflicts

e.g., water.

Congress working committee passed a resolution on 30th July, requesting the centre to

form Telangana. The Union cabinet on 3rd October, 2013 gave its approval to form

Telangana, which will be the 29th State of India.

Regionalism

It refers to a group of people in a Region or a State coming together to demand and

agitate for more powers of autonomy or a separate state for any of the following

reasons

1.Economic backwardness.

2 neglect of Collective feeling.

3 Their resources are utilised for others benefits.

4 Inadequate attention of development.

Lately, there have been many demands for new States from various quarters, e.g.,

Telangana (Andhra Pradesh), Bodoland (Assam), Vidarbha (Maharashtra), Gorkhaland

(West Bengal), Kodagu (Karnataka), Harit Pradesh (Uttar Pradesh), Mithilanchal (Bihar)

etc. Government has reacted to the regionalists demands by way of

Grant of separate State (Uttarakhand, Chhattisgarh and Jharkhand in 2000).

Creating Autonomous Council (e.g., Gorkhaland Territorial Administration).

Granting special privileges to the backward regions (Article 371 (2) for Gujarat and

Maharashtra) etc.

Telangana Statehood Demand

Telangana is the largest single region of the three regions of Andhra Pradesh covering

41.47% of its total area and inhabited by 40.54% of the State's population, contributes

about 76% to the State's revenues (excluding Central Government Contribution).

Proponents of a separate Telangana State feel all the Agreements, Accords, Formulae,

Plans and Assurances on the floor of legislature and Lok Sabha, in last 60 years, could

not be honoured and Telangana was forced to remain neglected, exploited and

backward.

The Union Government appointed Committee for Consultations on the Situation in

Andhra Pradesh (CCSAP) under the Chairmanship of Justice B N Sri Krishna to examine

the situation in Andhra Pradesh arising out of the demand for a separate State of

Telangana and the protests in the State against the move. Congress working committee

passed a resolution on 30 July, requesting the centre to form Telangana.

The Union Cabinet on 3 October, 2013 gave its approval to form Talangana, which will

be the 29th state of India Keeping the state united and providing for creation of a

statutorily empowered Telangana Regional Council for socio-economic development

and political development of Telangana region, was the most preferred option as

recommended by the Sri Krishna Committee report.

Gorkhaland Territorial Administration

After three years of agitation for a State of Gorkhaland led by GJM, the GJM reached an

agreement with the State Government of West Bengal to form a semi-autonomous

body to administer the Darjeeling hills. A Bill for the creation of GTA was passed in the

West Bengal Legislative Assembly on 2nd September, 2011. The GTA replaced the

Darjeeling Gorkha Hill Council, which was formed in 1988 and administered the

Darjeeling hills for 23 years. GTA presently has three hill sub-divisions (Darjeeling,

Kalimpong and Kurseong) and some areas of Siliguri sub-division under its authority.

The GTA will have administrative, executive and financial powers, but no legislative

powers. A 10-Member Joint Verification Committee headed by a retired High Court

Judge would examine the demand to bring the Gorkha-inhabited pockets of the Dooars

and the Terai under the GTA.

Sri Krishna Committee Report

In an all-party meeting on 6th January, 2011, which was boycotted by the TRS, BJP and TOP,

the Home Ministry released the 505-page Sri Krishna Committee Report. The report discusses

six solutions to the problem as below

Maintaining status quo keeping the Andhra Pradesh State as it is with no change in the

Telangana, Seemandhra and coastal regions.

Bifurcating the State of Andhra Pradesh into Seemandhra and Telengana regions with both of

them developing their own capitals in due course of time. Hyderabad to be converted to a

Union Territory. This proposal was similar to the Punjab-Haryana-Chandigarh model.

Dividing Andhra Pradesh into two States one of Rayala- Telangana with Hyderabad as its

capital and second-one of the coastal Andhra Pradesh.

Dividing Andhra Pradesh into Seemandhra and Telangana with enlarged Hyderabad Metropolis

as a separate union Territory that will be linked geographically to district Guntur in coastal

Andhra via Nalgonda district in the South East and via Mahboobnagar district in the South to

Kurnool district in Rayalaseema

Bifurcation of the State into Telangana and Seemandhra as per existing boundaries with

Hyderabad as the capital of Telangana and Seemandhra to have a new capital. This was the

second most preferred option according to the report.

Keeping the state united and providing for creation of a statutorily empowered Telangana

Regional Council for socio-economic development and political development of Telangana

region. This was the most preferred option.

ISSUES OF CITIZENSHIP

Introduction

Part II (Articles 5 to 11) of our Constitution deals with the matters of Citizenship. A

citizen of a State is a person, who enjoys full civil and political rights. India has two kinds

of persons living in the country namely Citizens and Aliens. The Citizens are the

permanent and full members of the Union of India who enjoy all the civil and political

rights. On the other hand, Aliens are the people belonging to some other nation and are

citizens of some other country.

Part II of the Constitution simply describes citizenship of classes of persons living in

India at the commencement of the Constitution, i.e., 26th January, 1950 and leaves the

entire Law of Citizenship to be regulated by legislations made by the Parliament.

Part II Citizenship

Article 5- Citizenship at the commencement of the Constitution.

Article 6 - Rights of Citizenship of certain persons who have migrated to India from Pakistan.

Article 7- Rights of Citizenship of certain migrants to Pakistan.

Article 8 -Rights of Citizenship of certain persons of Indian origin residing outside India

Article 9- Persons voluntarily acquiring citizenship of a foreign state not to be citizens.

Article 10 -Continuance of the rights of Citizenship.

Article 11- Parliament to regulate the Right of Citizenship by Law.

Provisions Related to Citizenship

As per our Constitution, following categories of people became citizen of India at its

commencement on 26th January, 1950.

A person with domicile in territory of India and born in Indian territory or either of

his/her parents were born in India or if he is ordinarily resident in India for 5 years

immediately after preceding the commencement of the Constitution (Article 5).

A person, who migrated from Pakistan to India and is born in undivided India or any of

his/her parents or any of the grandparents were born in the undivided India and fulfils

anyone of the two conditions, in case, he/she migrated to India before 19th July, 1948,

he/she had been ordinarily resident in India since the date of his migration or in case,

he/she migrated to India on or after 19th July, 1948, he had been registered as citizen

of India (Article 6).

A person, who migrated to Pakistan from India after 1st March, 1947, but later returned

to India for resettlement could become an Indian citizen, after being a resident of India

for six months presiding his date of application for registration for Indian Citizenship

(Article 7).

A person who or any of whose parents or grandparents, was born in undivided India but

who is ordinarily residing outside India shall become an Indian citizen if he has been

registered as a citizen of India by the diplomatic or consular representative of India in

the country of his/her residence, whether before or after the commencement of the

Constitution. Thus, this provision covers the overseas Indians who may want to acquire

Indian Citizenship (Article 8). There is another form of Citizenship, which is

automatically incorporated if any new territory becomes the part of the Union of India.

Other Provisions Related to Citizenship

Apart from the above provisions, our Constitution also contains some other provisions related

to Citizenship as mentioned below

No person shall be a citizen of India or be deemed to be a citizen of India, if he/she has

voluntarily acquired the Citizenship of any foreign State (Article 9).

Every person who is or is deemed to be a citizen of India shall continue to be such citizen,

subject to the Provisions of any Law made by Parliament (Article 10).

Parliament shall have the power to make any provision with respect to the acquisition and

termination 0 Citizenship and all other matters relating to Citizenship (Article 11). Under the

powers given by this Article, Parliament passed,the Indian Citizenship Act, 1955.

Single v/s Dual Citizenship

In India, a person can have only one citizenship (Single citizenship) i.e., only Indian citizenship.

Dual Citizenship is a status in which a person is concurrently regarded as , citizen under the

laws of more than one country: Due citizenship is not allowed under the Indian Constitution.

There are various countries/unions In the world that allow for multiple citizenship like the USA,

the European Union, Switzerland etc.

Getting Indian citizenship

As per the Citizenship Act of 1955, there are five ways of acquiring Citizenship, viz

birth, descent, registration, naturalisation and incorporation of territory.

By Birth

Every person born in India on or after 26th January, 1950, shall be a citizen of India

provided either or both of his/her parents are citizens of India at the time of his/her

birth. But this law does not apply where his/her parent are diplomats of any other

country or is an enemy alien at the time of his/her birth.

By Descent

Broadly, a person born outside India on or after 26th January, 1950, is a citizen of

India by descent if his/her either of the parents is a citizen of India at the time of that

person's birth.

By Registration

The prescribed authority may, on application, register as a citizen of India, any person

who is not a citizen by virtue of Constitution or the provisions of the Citizenship Act.

This mode of acquiring citizenship is available to any of the following categories…

Person of Indian origin who are ordinarily resident in India for 7 years immediately

before making an application for registration.

Persons of Indian origin who are ordinarily resident in any country or place

outside undivided India.

Persons who are or have been married to citizens of India.

Minor children of persons who are citizens of India.

A person of full age and capacity whose parents are registered as citizens of India.

A person of full age and capacity who or either of his parents, was earlier citizen of

independent India and has been residing in India for one year immediately before

making an application for registration.

A person of full age and capacity who has been registered as an overseas citizen of

India for five years and who has been residing in India for one year before making and

application for registration.

All the above categories of persons are required to take an oath of allegiance before

they are registered as citizens of India.

An Ordinary Resident

An applicant shall be deemed to be ordinarily resident in India if

He/she has resided in India throughout the period of twelve months immediately before making an

application for registration and

He/she has resided in India during the eight years immediately preceding the said period of twelve

months for a period of not less than six years.

Person of Indian Origin

Broadly a person of Indian origin is a citizen of another country who

was a citizen of India on 26th January, 1950 or at any time there after; or

belonged to a territory that became a part of India after 15th August; or

is the child or grandchild of a person described above; and

has never been a citizen of Pakistan or Bangladesh

Aliens

Aliens are generally divided into two categories namely

Friendly Aliens- Those who belong to those countries, which have friendly relations with India.

Enemy Aliens -Those belonging to the countries, which are at war with India They enjoy lesser

rights than the friendly aliens.

By Naturalisation

Citizenship by naturalisation can be acquired by making an application in the

prescribed manner.

The qualifications for naturalisation are the following.

He must be a person of full age and capacity.

He must not be a citizen of a country where Indian citizens are prevented from

becoming citizens by naturalisation.

He has renounced the citizenship of the other country.

He has either resided in India or has been in Government service for 12 months

before the date of making the application for naturalisation, or during 7 years prior to

these 12 months, he has resided or has been in the Government service for not less

than four years.

He must take an oath of allegiance.

He is of a good character.

He has an adequate knowledge of a language recognized by the Constitution.

By Incorporation of Territories

If any new territory becomes a part of India, after a popular verdict, the Government

of India shall specify the person of that territory to be the citizen of India.

In India, there is single citizenship i.e., citizenship of India. A citizen is an individual who

enjoys all the rights given by the law, available in the country.

Losing Citizenship

The Citizenship Act, 1955, also describes three ways of losing one’s citizenship of India

by means of renunciation, termination and deprivation.

Renunciation

It is covered is Section 8 of the Citizenship Act, 1955. If an adult citizen of India makes in the

prescribed manner a declaration renouncing his Citizenship of India, the declaration shall be

registered by the Central government and upon such registration, that person shall cease to be

a citizen of India.

Termination

When a citizen of India of full age and capacity voluntarily acquires the Citizenship of

another country, the Indian Citizenship of that person shall be automatically terminated.

Deprivation

The Central Government under Section 10 of the Indian Citizenship Act, 1955 can

deprive anyone of Indian Citizenship if it is satisfied that the registration or certificate of

naturalisation was obtained by means of fraud, false representation or concealment of

any material fact or the citizen of India has, during any war, in which India may be

engaged, unlawfully traded or communicated with an enemy or been engaged in or

associated with, any business or commercial activity that was to his knowledge carried

on in such manner as to assist an enemy in that war or the citizen of India has, within

five years after registration has been sentenced to imprisonment for a term of not less

than two years.

Citizenship Act, 1955

The Citizenship Act, 1955, provides for acquisition and termination of Citizenship after the

commencement of the Constitution. Since, its enactment, this Act has been amended several

times. The Citizenship Act 1955 was amended in the year 1986, 1992,2003 and 2005.

Rights of the Citizens

The Constitution confers the following rights and privileges exclusively on the Citizens of India

(denies the same to aliens)

Right against discrimination on grounds of religion, race, caste, sex or place of birth

(Article 15).

Right to equality of opportunity in the matter of public employment (Article 16).

Right to freedom of speech and expression, assembly, association, movement, residence

and profession (Article 19).

Cultural and Educational Rights (Articles 29 and 30).

Right to vote in elections to the Lok Sabha and State Legislative Assembly (Article 326).

Eligibility to hold certain public offices, that is, President of India, Vice-President of India,

Judges of the Supreme Court and the High Courts, Governor of States, Attorney General

of India and Advocate General of States.

Right to contest for the membership of the Parliament and the State Legislature.

Duties of citizens

The citizens are also obligated to perform certain duties towards the Indian State, i.e.,

respecting the National Flag and National Anthem, defending the country and others as

mentioned in Article 51A of our Constitution.

Dual Citizenship and OCI

(Overseas Citizens of India)

The Constitution of India forbids Dual Citizenship. No person can hold an Indian passport

simultaneously with the passport of another country. There is however a form of Indian

Nationality known as Overseas Citizens of India (OCI).

The Indian Government, on application, may register any person as an Overseas Citizen

of India if that person is of Indian Origin and is from a country, which allows Dual

Citizenship in some form or other. OCI however is not a full Citizenship of India and is

not equivalent to Dual Citizenship.

People with OCI status are given type of Visa known as U-Visa it is attached to the

passport of Country of which they are citizens. This Visa allows the whole multiple entry,

multi-purpose, life-long visits to India. Persons holding this Visa are not require obtain

separate work permits work in India.

Overseas Citizens of India are eligible to hold constitutional posts or be appointed to

public services. OCI are also not allowed to invest agriculture or plantation properties.

Person of Indian Origin (PIO) Card

This card is issued to any pen holding a non-Indian Passport, who can prove their Indian

origin up three generations before. It can also be given to spouses of Indian Citizens or

Persons of Indian Origin. Citizens of Pakistan, Bangladesh and other countries as

specified the Government are not eligible for grant of POI Card.

A PIO Card is valid for a period 15 years from the date of issue and the holder, holds the

following benefits

Exemption from registration at Foreigners Regional Registration Office (FRRO) for

periods of stay less than 180 days.

Enjoy parity with non-resident Indians in economic, financial and educational fields.

Acquire, hold, transfer or dispose of immovable properties in India except for

agricultural properties.

Open rupee bank accounts, lend in rupee to Indian residents and make investments in

India etc.

Possession of a PIO Card does not entitle the holder to Exercise political rights.

Visit restricted or protected areas without permission.

Undertake mountaineering, research and missionary work without permission.

Non-Resident Indians (NRI)

Non-Resident Indians (NRIs) are Indians citizens, who stay abroad for employment/carrying on

business or vocation outside India. Section 20 of the Representation of the People Act (RPA)-

1950 disqualifies a Non-Resident Indian (NRI) from getting his/her name registered in the

electoral rolls. Consequently, it also prevents an NRIs from casting his/her vote in elections to

the Parliament and to the State Legislatures.

In August 2010, Representation of the People (Amendment) Bill-2010 which allows voting

rights to NRIs was passed in both Lok Sabha and Rajya Sabha with subsequent gazette

notifications on 24th November, 2010. With this NRI's will now be able to vote in Indian

elections, but have to be physically present at the time of voting.

Government Decides to Give Voting Rights to NRls

Fulfilling the long-standing demand of its Diaspora, India decided to allow Non-Resident

Indians (NRls) to vote and participate in the election process. Pursuant to the law that was

enacted to enable Non-Resident Indians to vote in our national elections, the Government has

issued notifications for registration of overseas electors under the Representation of People

Act, 1950. This constitutes the first major step to enable Indian residents abroad to participate

in our election process. By providing voting rights the Government has recognised and valued

the important role being played by Indian communities living abroad.

Difference between PIO and OCI Card

S.No. PIO Card OCI Card/

A person is registered as PIO card holder

under the Ministry of Home Affairs' scheme

dated 19th August, 2002.

A person is registered as Overseas Citizen of

India (OCI) under the Citizenship Act, 1955.

The OCI scheme is operational from 2nd

December, 2005.

PIOs of all countries except Afghanistan,

Bangladesh, Bhutan, China, Nepal, Pakistan

and Sri Lanka are eligible for PIO.

PIOs of all countries except Pakistan and

Bangladesh are eligible for OCI

PIO card holder do not require separate visa A multiple entry, multi-purpose life-long visa

to visit India. for visiting India is given to OCI.

They are exempt from the requirements of

registration if his/her stay on any single visit

in India does not exceed 180 days.

Exemption from registration with local police

authority for any length of stay in India.

Can visit India without visa for 15 years from

the date of issue of PIO card.

Can visit India without visa for life-long.

All activities except mountaineering,

missionary, research work and visiting

protected/restricted areas, which require

specific permit, can be undertaken.

All activities except mountaineering,

missionary, research work and visiting

protected/restricted areas which require

specific permit, can be undertaken.

He/she has to reside in India for minimum 7

years before making application for granting

Indian Citizenship.

He/she may be granted Indian Citizenship

after 5 years from date of registration

provided he/she stays for one year in India

before making application.

Smart Facts

Article 9 deals with renunciation of Citizenship. The 2003 Amendment of Citizenship Act,

redefined the term illegal immigrant and inserted and defined Overseas Citizen of India. The

2005 Amendment of Citizenship Act, extended overseas citizen of India status to Person's of

Indian Origin (PIO) of any country except Pakistan and Bangladesh.

Originally, the Citizenship Act 1955, also provided for the Commonwealth Citizenship.

Any foreigner who fulfils the eligibility criteria for getting Indian Citizenship may apply online

through Ministry of Home Affairs.

An illegal migrant is a person with a valid prescribed travel documents, but remains in India

beyond the permitted period of time.

Persons who are married to a Citizen of India and who are ordinarily resident in India for seven

years can apply for Indian Citizenship.

As per the Citizenship Act, 1955, there are three ways of loosing Citizenship whether acquired

under the Act or prior to it under the Constitution namely, Renunciation, Termination and

Deprivation.

Pravasi Bharatiya Divas

Pravasi Bharatiya Divas (PBD) is celebrated on 9th January, every year to mark the contribution

of Overseas Indian Community in the development of India. 9th January, was chosen as the

day to celebrate this occasion, since it was on this day in 1915 that Mahatma Gandhi, the

greatest Pravasi, returned to India from South Africa, led India's freedom struggle and

changed the lives of Indians forever.

PBD conventions are being held every year, since 2003. These conventions provide a platform

to the overseas Indian community to engage with the government and people of the land of

their ancestors for mutually beneficial activities. The decision to celebrate the Pravasi Bharatiya

Divas was taken in accordance with recommendations of the High Level Committee (HLC) on

the Indian Diaspora set up by Government of India under the Chairmanship of Dr LM Singhvi.

Pravasi Bharatiya Divas 2013

The 11th Pravasi Bharatiya Divas was held in Kochi, Kerala from 7th-9th January, 2013. The

President of Mauritius, Rajkeswur Purryag, was the chief guest at the official inaugural session.

The theme of year 2013 PBD was "Engaging diaspora-the Indian growth story". About 2000

delegates from 44 countries participated. Prime Minister Manmohan Singh released a special

Rs. 5 stamp on this day to commemorate 100 years of the founding of Ghadar Party. The

Ghadar was formed in 1913 by overseas Indians in USA to liberate India from British Rule.

FUNDAMENTAL RIGHTS

Rights are claims of social life, they help individuals to develop their personality. The

Fundamental Rights provide protection only against state action and do not safeguard against

the action of private individuals.

The Indian Constitution is first and foremost a social document. The majority of its

provisions are either directly aimed at furthering the goals of the social revolution or

attempt to foster this revolution by establishing the conditions necessary for its

achievement. Yet despite the permeation of the entire Constitution by the aim of

national renascence, the core of the commitment to the social revolution lies in Part

III (Fundamental Rights) and Part IV (Directive Principles of State Policy). Granville

Austin considers these two parts as the conscience of the Constitution.

Concept of Fundamental Rights

The origin of the concept of Fundamental Rights may be traced to the 13th century

England. It was in 1215 that the people of England revolted against King John and

enforced their demand for reiteration of their claims against the royal absolutism.

The King was forced to acknowledge that there were certain rights of the subjects,

which could not be violated even by a legal sovereign. The Magna Carta, 1215, which

was an evidence of people's success, was a written document. It enjoined "respect for

the law by the King, forbade denial of justice, prohibited unlawful detention and

excessive fines."

Meaning

The Fundamental Rights have been declared essential rights in order that human

liberty may be preserved, human personality developed and an effective social and

democratic life promoted. In the Manka Gandhi v/s Union of India case, 1978, Justice

Bhagwati observed:

These Fundamental Rights represent the basic values cherished by the people of this

country since the Vedic times and they are calculated to protect the dignity of the

individual and create conditions in which every human being can develop his

personality to the fullest extent.

They weave a pattern of guarantees on the basic structure of human rights and

impose negative obligations on the state not to encroach on individual liberty in its

various dimensions.

Classification of fundamental Rights

Fundamental Rights have been grouped in following six categories

Article 12 Definition

Article 13 Laws inconsistent with or in derogation of the Fundamental Rights.

Right to Equality

Article 14 Equality before law

Article 15 Prohibition of discrimination on grounds of religion, race, caste, sex or place of

birth

Article 16 Equality of opportunity in matters of public employment,

Article 17 Abolition of untouchability,

Article 18 Abolition of titles

Right to Freedom

Article 19 Protection of certain rights regarding freedom of speech etc

Article 20 Protection in respect of conviction for offences

Article 21 Protection of life and personal liberty

Article 21(A) Right to Education

Article 22 Protection against arrest and detention in certain cases

Right against Exploitation

Article 23 Prohibition of traffic in human beings and forced labour

Article 24 Prohibition of employment of children in factories etc

Right to Freedom of Religion

Article 25 Freedom of conscience and free profession, practice and propagation of religion

Article 26 Freedom as to manage religious affairs

Article 27 Freedom as to payment of taxes for promotion of any particular religion

Article28 Freedom as to attendance at religious instruction or religious worship in certain

educational institutions

Cultural and Educational Rights

Article 29 Protection of interests of minorities

Article 30 Right of minorities to establish and administer educational institutions

Right to Constitutional Remedies

Article 32 Provides institutional framework for the enforcement of the Fundamental Rights

by the Supreme Court.

Dr BR Ambedkar called this article as The Fundamental of the Fundamental Rights and The

heart and soul of the Constitution.

Need of Fundamental Rights

The inclusion of a chapter on Fundamental Rights, in the Constitution, is in

accordance with the trend of modern democratic thought. These rights are basic to a

democratic polity. The object is, not only to ensure the inviolability of certain

essential rights against authoritarianism, but also, to impress upon the people the

fact of their having reached a new level of national existence.

The guarantee of basic human rights is an indispensable requirement of a free

society. The Constitution of England is unwritten and the supremacy of Parliament is

its dominant characteristic. As a result, there is no formal declaration of Fundamental

Rights of the people in England.

However, there prevails Rule of Law, which is the bedrock of British Constitution. The

Americans adopted the Constitution-making, for securing their Bill of Rights. The

original Constitution framed in 1787 and brought into force in 1789, did not contain

any Fundamental Rights for Americans. It was met with serious condemnation.

Consequently, the first ten amendments were enacted in 1791, incorporating the

Fundamental Rights. These amendments have been described as the American Bill of

Rights.

The framers of the Indian Constitution followed the American model in adopting and

incorporating the Fundamental Rights for the people of India. The Constitution, not

only secures the Fundamental Rights, but also, provides a speedy and effective

remedy for their enforcement.

In a series of decisions, starting with Menaka Gandhi Case, 1978, the Apex Court has

widened the ambit of the Fundamental Rights and has sought to bring these rights in

conformity with the global trends in human rights jurisprudence.

Nature of Fundamental Rights

The Fundamental Rights are individual rights and are enforceable against the state

and not against individuals except right against untouchability (Article 17), right

against exploitation (Articles 23 and 24) and right to personal liberty (Article 21)

whereby in case of violation, an individual, who has violated these rights can be

taken to the court of law.

The Fundamental Rights are regarded as limitations on the powers of state. They are

also negative obligations upon the state because they are mostly negatively worded.

The Fundamental Rights have to be exercised subject to the limitations embodied in

that very part itself. So to say, the rights are not absolute or unrestricted. For,

absolute rights cannot exist in a modern state. If the rights are uncontrolled and

absolute, it may lead to chaos and anarchy in the society.

Restrictions on fundamental Rights

The Fundamental Rights of an individual have been restricted under some or all of the

following grounds under various articles

For the security of the state.

For the maintenance and promotion of the interest of women, children and the socially and

educationally backward classes.

To maintain friendly relations with foreign States.

In case of defamation.

Contempt of courts.

For the maintenance of public order, decency and morality.

Judicial Review and Fundamental Rights

Judicial review is the power of the Supreme Court and High Courts to declare a law as

unconstitutional or void, if it is inconsistent with any of the provisions of the

Constitution to the extent of such inconsistency. This power is available both against

the law made by the legislature and an act of the executive.

Definition of State (Article 12)

Article 12 defines the term 'State the purpose of the Fundamental Rights. Article 12

provides that the context otherwise requires state includes the Government and

Legislature of each of the States, local or other authorities within territory of India or

under the control, the Government of India."

Article 12 gives an inclusive and exhaustive definition of the State. Definition of the

State includes

The Government and Parliament of India.

The Government and

Legislature of each State.

All local or other authorities within the territory of India.

All local or other authorities under the control of the Government India.

Amendability of Fundamental Rights

The expression 'law' according Article 13 includes any law passed by state laws, rules,

regulation, ordinances, executive directions etc. The First (Constitutional) Amendment

Act, 1951 added the Schedule IXth to the Constitution which mostly constitution social

legislations like the land reform act and its provisions cannot be challenged in any

court of law for contravening any of the Fundamental Rights. Secondly Article 15 (4)

was added to protect the interests of the, Scheduled Castes and Schedule Tribe: and

the policy of reservations was introduced.

This amendment act violated the right to equality, the right to property and it was

challenged in the Shankari Prasad v/s Union of India Case, 1951. In this case, the

Supreme Court held that the Parliament can amend the Fundamental Rights. In

Sajjan Singh v/s State of Rajasthan (1965), the Supreme Court reiterated the same

judgement. In Golaknath v/s State of Punjab (1967), the court reversed its decision

and held that the Parliament has no authority to amend the Fundamental Rights.

After this, the 24th (Constitution) Amendment Act was passed in 1971. It amended Article 13

and introduced Article 13(4) which said that,firstly nothing in this article shall apply to

amendment made under Article 368.

Secondly it also changed the title of Article 368 "The power of the Parliament to amend the

Constitution and the procedure thereof." Nature of Article 368 was changed and 24th

Amendment Act established that any part of Constitution can be changed including the

Fundamental Rights. This 24th Constitutional (Amendment) Act was challenged in the

Keshavanand Bharti v/s State of Kerala Case 1973. In this case the Supreme Court propounded

the Doctrine of basic structure of the Constitution.

Doctrine of Basic Structure of Constitution

The Supreme Court in Keshavananda Bharti case gave the judicial innovation of the doctrine of

basic structure of the Constitution. It held that the power of the Parliament to amend the

Constitution is limited to the extent of not violating the basic structure of the Constitution.

However, the court did not elaborate on what constitutes the basic structure of the

Constitution. However, through various judgments of the court, we have come to know about

the basic structure of the Constitution i.e., parts which constitute the basic structure of the

Constitution.

Thus, the basic structure means those parts of the Constitution without which the Constitution

would leave its basic character. It has helped in maintaining the supremacy of the Constitution

and it has also shown a definite direction for the Constitutional developments to take place. In

the Minerva Mills v/s Union of India Case, the Supreme Court upheld the basic structure

doctrine given by Supreme Court in Keshavananda Bharati Case.

Basic Structure of the Constitution

Sovereign nature of government,

The idea of a welfare state,

Secularism,

Republican and Parliamentary form of government.

The concept of Constitutional supremacy,

Judicial Review,

Balance between the various organs of the government.

Rule of law.

Federalism,

Balance between the Fundamental Rights and Directive Principles of State Policy,

Fundamental Rights under Article 14, 15, 19,

Fair and free elections.

Doctrine of Eclipse

Article 13(1) states that all laws inconsistent with or in contravention of the Fundamental

Rights shall be void to the extent of such inconsistency. The Articles reads as all laws in force in

the territory of India immediately before the commencement of this Constitution, in so far as

they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency,

be void. 'Laws' as defined under Article 13 include any ordinance, order by law, rule,

regulation, notification, custom or usage having in the territory of India, the force of law. It

does not include any amendment to the Constitution made under Article 368.

The state shall not make any law which takes away or abridges the rights conferred by this part

and any law made in contravention of this clause shall, to the extent of the contravention, be

void. The Supreme Court in the Bhikaji Narain us State of Madhya Pradesh propounded

doctrine of eclipse and clarified that any such law is not dead altogether. It is overshadowed by

the Fundamental Right and remains dormant or eclipsed to the extent it comes under the

shadow of the Fundamental Rights.

The eclipsed par gets revived and effective again if the prohibition brought about by the

Fundamental Right is removed by an amendment to the Constitution. This was a case relating

to a pre-constitutional law. The Supreme Court in the State of Gujarat us Sri Ambika Mills case

1974, gave the verdict that this doctrine is applicable to the pre-constitutional as well as post-

constitutional law.

Doctrine of Severability

Clause 1 and 2 of Article 13, thus declare that laws inconsistent with or in contravention of the

Fundamental Rights shall be void to the extent of such inconsistency or contravention, as the

case may be. It means that, where only a part of the law is inconsistent with or contravenes

the Fundamental Rights, it is only that part, which shall be void under Article 13 and not the

whole of the law. The courts apply the doctrine of severability to separate the valid portion of

the law from the invalid portion.

Suspension of fundamental Rights

Article 358 states that the Fundamental Rights provided under Article 19 are automatically

suspended when the National emergency is proclaimed on the grounds of war and external

aggression. However, if the National Emergency is proclaimed on the grounds of internal

armed rebellion, the rights under Article 19 are not automatically suspended.

Article 359 state that if a National Emergency is proclaimed then the President may by a

separate proclamation suspend all other Fundamental Rights except those under Articles 20

and 21.

Constitutional Amendment Acts Declared as Unconstitutional

Amendment Act Relevant Ruling

Seventeenth Amendment (in part) Golak Nath vs State of Punjab, 1967

Twenty-Fifth Amendment (Article 31C) Keshavananda bharti Case, 1973

Thirty-Sixth Amendment (Article329) Inidra Gandhi vs RajNarain, 1975

Article 368 Minerva Mills Case, 1980

Thirty-Second Amendment Sambmurth vs UOI, 1987

Fifty-Second Amendment (10th Schedule,

para 7)

Kihota vs Zachihu, 1993

Right to Equality (Articles 14-18)

Equality before Law and Equal protection of Lows (Article 14)

The State shall not deny to any person equality before the law or the equal protection of

the laws within the territory of India. Equality before Law is a negative concept. It

signifies that no one is above the law. The concept has been borrowed from United

Kingdom's Constitution. It is based on the concept of Rule of Law.

Classification of Fundamental Rights

Fundamental Rights have been classified under the following six categories

Right to Equality (Articles 14-18)

Right to Freedom (Articles 19-22)

Right against Exploitation (Articles 23-24)

Right to Freedom of Religion (Articles 25-28)

Cultural and Educational Rights (Articles 29-30)

Right to Constitutional Remedies (Article 32)

Rule of Law was propounded by the Greek political thinker Aristotle. According to

Aristotle, ''Rule of Law is better than rule of men." In the modern times, it has been

popularized by Professor Dicey. Rule of Law establishes the supremacy of law ie, Lex

Superanus. Rule of Law has transformed the concept of Rex Lex (King is law) to the

concept of Lex Rex (Law is the king).

The essential characteristic of the Rule of Law are

The supremacy of law which means that all persons (individuals and government) are

subject to law.

The concept of justice which emphasizes interpersonal adjudication, law based on

standards and the importance of procedures.

Restrictions on the exercise of discretionary powers,

The doctrine of judicial precedent,

The common law methodology,

Legislation should be prospective and not retrospective.

Underlying moral basis for all laws,

Equal Protection of Laws

The concept equal protection of laws is based on Section 1 of the 14th Amendment of

the Constitution of the United States of An adopted on 28th July, 1868. It does not mean

equal application of law for people irrespective of the circumstances under which they

are place means equality as per law in equal circumstances i.e., equality a equals. There

should be no discrimination between one person and in similar circumstances.

Exceptions

Under Article 361(1), the President, or the Governor of a State, shall not answerable to

any court for the exercise and performance of the powers and duties of his office or for

any act done or purporting to be done by in the exercise and performance of those

powers and duties.

No criminal proceedings shall be initiated or continued against President, or the

Governor of a State in any court during his/her term of office

No process for the arrest or imprisonment of the President, or the Governor of a State,

shall be issued from any court during his/her term of office.

No civil proceedings in which relief is claimed against the President or the Governor of a

State, shall be initiated during his/her term of office in any court in respect of any act

done or purporting to be done by him in his personal capacity, whether before or after

he/she entered upon his office as President as Governor of a State, until the expiry of 2

months after the notice writing has been delivered to the President or the Governor, as

the case may be, or left at his office stating the nature of the proceedings. Under

international law, the visiting head of government and foreign diplomats posted in the

country are not subject to the jurisdiction of local courts.

Prohibition of Discrimination on Certain Grounds (Article 15)

Article 15-The state shall not discriminate against any citizen on grounds only of religion,

race, caste, sex, place of birth or any of them. This right available only to citizens.

Exceptions

Article 15(3)- Nothing in this article shall prevent the state from making any special

provision for women and children.

Article15(4)-Nothing in this article or in Clause (2) of Article 29 shall prevent the State

from making any special provision for the advancement any socially and educationally

backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

The 93rd Constitution Amendment Act, 2005 inserted Article 15(5), which authorises the

state to make special provisions for the advancement of al socially and educationally

backward classes of citizens or for the Schedule Castes and the Schedule Tribes in so far

as such special provisions relate their admission to educational institutions including

private education institutions, whether aided or unaided by the state, other than the

minority educational institutions referred to in Clause(l) of Article 30.

Concept of Creamy Layer

The term creamy layer came into focus during the 1992 Supreme Court Judgment on the

Mandal Commission recommendations asking for 27% reservations for Other Backward Classes

(OBCs) in Central Government Jobs. The children of the following different categories of people

belong to creamy layer among OBCs and thus, will not get the quota benefit

Persons holding constitutional posts like President, Vice-President, Judges of the SC and the

HCs, Chairman and Members of UPSC and SPSCs, CEC, CAG and so on.

Group AI Class I and Group BI Class II Officers of the All India, Central and State Services and

employees holding equivalent posts in PSUs, banks, insurance organisations, universities etc

and also in private employment.

Persons who are in the rank of Colonel and above in the Army and equivalent posts in the Navy,

the Air Force and the Para-military Forces.

Professionals like doctors, lawyers, engineers, artists, authors, consultants and so on.

Persons engaged in trade, business and industry.

People holding agricultural land above a certain limit and vacant land or buildings in urban

areas.

Persons having gross annual income of more than Rs. 4.5 lakh or possessing wealth above the

exemption limit.

Mandal Commission

The Mandai Commission was established in India in 1979, by the Janta Party Government under

Prime Minister Morarji Desai with a mandate to investigate the conditions of the socially and

educationally backward classes and suggest measures for their advancement. It was headed by

Indian Parliamentarian Bindheswari Prasad MandaI.

In 1980, the Commission's Report affirmed the affirmative action practice under Indian Law

whereby, members of lower castes [known as Other Backward Classes (OBCs) and Scheduled

Castes and Tribes] were given exclusive access to a certain portion of Government jobs and

slots in Government universities and recommended changes to these quotas, increasing them

by 27% to 49.5%.

It was after ten years in 1990 that the VP Singh Government declared reservation of 27%

government jobs for the OBCs. Pursuant to Supreme Court ruling Ram Nandan Committee was

appointed to identify the creamy layer among the OBCs.

It submitted its report in 1993, which was accepted. Government also established National

Commission for Backward Classes in 1993, by an Act of Parliament. It considers inclusions in

and exclusions from the lists of castes notified as backward for the purpose of job reservation.

Equality of Opportunity in Matters of Public Employment (Article 16)

There shall be equality of opportunity for all citizens in matters relating to employment or

appointment to any office under the state.

No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence

or any of them, be ineligible for, or discriminated against in respect of, any employment or

office under the state. This right is available only to citizens.

Exceptions

Article 16(3) Nothing in this article shall prevent Parliament from making any law prescribing, in

regard to a class or classes of employment or appointment to an office under the government,

or any local or other authority within, a State or Union Territory, any requirement as to

residence within that State or Union Territory prior to such employment or appointment.

Article 16(4)- Nothing in this article shall prevent the state from making any provision for the

reservation of appointments or posts in favour of any backward class of citizens which, in the

opinion of the State, is not adequately represented in the services under the State.

Article 16(4A)- Nothing in this article shall prevent the State from making any provision for

reservation in matters of promotion, with consequential seniority, to any class or classes of

posts in the services under the State in favour of the Scheduled Castes and the Scheduled

Tribes which, in the opinion of the State, are not adequately represented in the services under

the State.

The SCs STs had been enjoying the facility of reservation in promotion since 1995. In the Indira

Sawhney v/s Union of India case, 1992, the Supreme Court observed that reservation in

appointments or in posts is confined to the initial appointment and cannot extend to

reservation in the matter of promotion.

This verdict of the Supreme Court was considered to adversely affect the interest of Schedule

Caste and Schedule Tribes. In view of its commitment to protect the interests of the SCs and the

STs, the Government decided to continue the existing policy of providing reservation in

promotion in case of SCs and STs. The Constitution (77th Amendment) Act, 1995, amended

Article 16 by inserting a new clause 4A to provide for reservation in promotion for SCs and the

STs.

Abolition of Untouchability (Article 17)

Untouchability is abolished and its practice in any form is forbidden. The enforcement of any

disability arising out of 'Untouchability' shall be an offence punishable in accordance with law.

Untouchability is neither defined in the Constitution nor in the Act. The Mysore High Court has,

however, held that the term is not to be understood in its literal or grammatical sense, but to

be understood as the practice as it had developed historically in this country.

Understood in this sense, it is a product of the Hindu Caste System according to which

particular sections amongst the Hindus had been looked down as untouchables by other

sections of that society.

The Parliament enacted the Untouchability (Offences) Act, 1955. This Act was amended by the

Untouchability (Offences) Act, 1976, in order to make the law more stringent to remove the

evil of Untouchability from the society. It has now been named as 'The Protection of Civil

Rights Act,' 1955. The Protection of Civil Rights Act prescribes punishment which may extend

to imprisonment up to 6 months and also with a fine, which may extend to Rs. 500 or both.

Abolition of Titles (Article 18)

It has four provisions

No title, not being a military or academic distinction, shall be conferred by the state.

No citizen of India shall accept any title from any foreign state.

No person who is not a citizen of India shall, while he holds any office of profit or trust

under the state, accept without the consent of the President any title from any

foreign state.

No person holding any office of profit or trust under the state shall, without the

consent of the President, accept any present, emolument, or office of any kind from or

under any foreign state.

Only those titles which can create artificial social barriers have been abolished. The

National Awards were introduced by the Centre in 1954, by Presidential notifications.

The Presidential notification made it clear that these civilian awards cannot be used as

titles and should not be attached as suffixes or prefixes to the name of the awards. In

1977, these awards were discontinued. However, they were again revived in 1980.

In the Balaji Raghavan v/s Union of India Case, 1996, the petitioners challenged the

validity of these National Awards and requested the court to prevent the Government

of India from conferring these awards. It was contended that the National Awards are

titles within the meaning of Article 18. The Supreme Court held that the National

Awards such as Bharat Ratna, Padma Bhusan etc, are not violative of Article 18 of the

Constitution. These were awards and not titles. The National Awards are given to the

people for rendering meritorious service to the society or the state.

Right to Freedom (Articles 19 -22)

Protection of Six Freedom Rights

Article 19 Guarantees all citizens shall have the right

(a) To freedom of speech and expression;

(b) To assemble peaceably and without arms;

(c) To form associations or unions or co-operative societies.

(d) To move freely throughout the territory of India;

(e) To reside and settle in any part of the territory of India; and

(g) To practice any profession, or to carryon any occupation, trade business.

Originally Article 19(1) had seven freedoms. But Article 19 (1) i.e., right to freedom of

property was omitted by the 44 (Constitutional) Amendment Act, 1978. The rights

granted und Article 19 are available only to the citizens.

Right to freedom of Speech and Expression [Article 19 (1) (a)]

The freedom of speech and expression guaranteed under Artie 19(1)(a), means the

right to speak and to express one's opinion J words of mouth, writing, printing,

pictures or in any other manner It is the right of a citizen to express his views freely

and openly. Openly means without any fear while freely denotes that the citizen can

choose any medium to express his opinion e.g., printing writing, putting banners and

hoardings etc. It is to express one's convictions and opinions or ideas freely, through

any medium of communication or visible representation such as gesture, signs and

the like. The right to freedom of speech and expression has been subjected to wide

interpretations by the Supreme Court.

Reasonable Restrictions on Freedom of Speech and Expression

Clause 2 of Article 19, provides: Nothing in sub-clause (a) of clam (1) shall affect the

operation of any existing law, or prevent the stat from making any law, in so far as

such law imposes reasonable restrictions on the exercise of the right conferred by the

said sub-clause in the interests of the sovereignty and integrity of India the security of

the state, friendly relations with foreign state, public order, decency or morality, or in

relation to contempt of court defamation or incitement to an offence.

Freedom of Press

Unlike the American Constitution, Article 19(1) does not specifically or separately provides for

liberty of the press. The omission was explained by Dr BR Ambedkar when he observed ‘’The

editor of a press or the managers are merely exercising the right of expression and therefore,

no special mention is necessary of the freedom of the press."

Right to Know and to Obtain Information

It has been held that in a democratic government, it is elementary that citizens ought

to know what their government is doing. They have the right to know every public act.

It has also been held that exposure to public gaze and scrutiny is one of the surest

means of achieving a clean and healthy administration.

With a view to promote openness, transparency and accountability in administration,

the Right to Information Act came into operation form 12th October, 2005. The act

provides for furnishing information by the public information officer on request from

the person desiring to obtain it. Penalty up to Rs. 25000 can be imposed for failure to

give information.

Rights of the Citizens/Voters to know the Antecedents

The Supreme Court in Association for Democratic reforms v/s Union of India Case,

2002, ruled that right to know the antecedents of the candidates contesting for MP or

MLA including their criminal antecedents was fundamental and basic for survival

without free and fair elections, without fairly informed voters, the court said that the

voter had the right to get material information with respect to a candidate contesting

election for a post, which was of utmost importance in the democracy, was implied in

the freedom of speech guaranteed by Article 19(1) (a) which also included freedom of

silence.

Right to Reply or answer Criticism Against One’s Views

In Life Insurance Corporation of India v/s Manubhai D Shah, the Supreme Court held that the

right to reply, i.e, the right to get published one’s reply in the same news media in which

something was published against or in relation to a citizen, was a part of the freedom of

speech and expression.

Demonstration and Picketing

It has been held that demonstrations or picketing are visible manifestations of one’s ideas and

in effect a form of speech and expression. However, in order to be protected under Article

19(1)(a), the demonstrations or picketing must not go beyond the limits of persuasion or

inducement and which does not restrain others form what they please, would be saved under

Article 19(1)(a).

Right of a Convict to Express Himself

In M Hasan v/s State of Andhra Pradesh, 1998, the Andhra Pradesh High Court held that

refusal to journalists and videographers seeking interview with condemned prisoners

amounted to deprivation of citizens Fundamental Right to speech and expression under Article

19(1)(a). As far as the exercise of Fundamental Right was concerned, the Court said, position of

a condemned prisoner was on par with a free citizen. He had a right, the court ruled, to give

his ideas and was entitled to be interviewed or to be televised.

No Right to Call or Enforce Bandh, Hartals, Blockades

The Supreme Court in CPI v/s Bharat Kumar, 1998 reiterated with approval the decision of the

Kerala High Court in Bharat Kumar v/s State of Kerala, 1994 and laid down that there was right

to call or enforce ‘Bandh’, which interfered with the exercise of fundamental freedoms of

other citizens, in addition, to causing national loss in many ways. The court held that Hartal

and boycott can be illegal, if accompanied by violence. Regarding a blockade, on one has a

right to call for a blockade of the office of the local authority in exercise of the right of their

free movement.

Free of Silence

In Bijoe Emmanuel v/s State of Kerala, the Supreme court held that no person could be

compelled to sing National Anthem ‘if he has genuine conscientious objections based on his

religious belief. In this case, their children belonging to Jehovah’s Witnesses were expelled

from the school for refusing to sing the National Anthem during school prayers. They used to

stand up respectfully when the National Anthem was being sung, but did not join in singing it.

The Kerala High Court upheld their expulsion from the school on the ground that it was their

fundamental duty to sing the National anthem and that they committed an offence under the

Prevention of Insults to National honour Act, 1971. The Supreme Court, however, reversed the

decision of that the expulsion of the children from that school was a violation of their

Fundamental Right under Article 19(1) (a). which also included freedom of silence.

Freedom of Assembly [Article 19(1) (c)]

It guarantees to all citizens the right to assemble peacefully and without arms. it is a corollary of

Article 19 (1) (a). This right is absolute but restricted. The assembly must be non-violent and

must not cause any breach of public peace. If the assembly is disorderly or riotous then it is not

protected under Article 19(1) (b) and reasonable restrictions may be imposed under Article

19(3).

Reasonable restrictions on Freedom of Assembly

The right to hold assembly conferred by Article 19(1)(b) is, however, not absolute. It is

subjected to the following limitation -

The assembly must be peaceful;

It must be unarmed; and The State may impose reasonable restrictions under Clause (3) of

Article 19 in the interest of public order or sovereignty and integrity of India.

Freedom to Form Association [Article 19(1) (c)]

It guarantees the right to form associations. It includes the association of any kind-political,

social or cultural. Further, it also means the right to join or not to join any association or right to

continue or not to continue with the association.1. It gives rise to the right to form trade

unions. It is a Fundamental Right of workers to form trade unions.

The Supreme Court conferred that the Constitution does not recognizes the right to strike. It is

a legal right but the strike must follow some rules. Workers can strike only after giving due

notice.

In CPM v/s Bharat Kumar 1998, Case the Supreme Court stated that Bandh is illegal.

Bandh (A general strike) is illegal because it carries an element of aggression or

compulsion. The compulsion of shut down [Article 19] offices, shops and disturbance to

Public Transport System, therefore violate a Fundamental Right of citizen (Right to

Freedom of Movement). Moreover, bandh prevents the workers to earn their daily

bread; therefore it violates the Right to Livelihood. It also violates the Right to Freedom

of Speech and Expression.

The Supreme Court held that the Hartal is not illegal, because there is not any form of

coercion involved no disturb normal life criticism.

ESMA (Essential Services Maintanance Act) The citizens involved in delivery of essential

services cannot go on strike (Telecommunication, Administration etc). Right to form

Association under Armed Forces Article 33 of the Constitution empowers the Parliament

to pass a law restricting the right to form political association to

(a) The members of the Armed Forces.

(b) The members of the forces charged with or

(c) Persons employed in any bureau or other organisation established by the State for

purposes of intelligence or

(d) Persons employed in or connection with the telecommunication system.

Example Police Forces (Restriction of Rights) Act, 1966, thus they do not have the right

to form trade unions and hence not to go on strike.

Right to Freedom of Association

An association means "a collection of persons who have joined together for a certain

object, which may be for the benefit of the members or the improvement, welfare or

advantage of the public or some scientific, charitable or similar purpose." It is a term of

widest connotation. Article 19(1)(c) includes the right to form companies, societies,

partnership firms, trade unions, clubs, political parties and the like body of persons. It is

the right of every citizen, to be a member of or to associate himself, with any

organisation, association, union, club, company or society. According to the Supreme

Court, the right to form association includes the right to join or not to join, to continue

or not to continue with an association. Right to form trade unions emanates from this

right.

Right to Freedom of Association

It guarantees to citizens the right to move freely throughout the territory of India. The

word 'throughout' means no part of the country can be made inaccessible to the people

of India. The word freely means wherever one likes and however one likes. But, these

right can be restricted on the found of Security, Public order or for protecting the

interests of the Scheduled Tribes.

Restrictions Imposed

On the basis of the above provision, the following reasonable resttriction can be

imposed on the Freedom of Movement

In the interest of country's security,

For protecting the interests and culture of the Schedule Tribes,

For maintenance of public order, decency and morality,

Freedom of Residence [Article 19(1) (e)]

It is a corollary of Article 19 (1) (d). It provides that reside and settle down throughout

the territory of India right is subject to certain reasonable restriction in the, like the

Scheduled areas or border areas.

Broadly speaking the two rights contained in Articles] and 19(1)(e) are parts of the same

right an complementary and often go together. Article 19(1)(e) natural corollary to

Article 19(1)(d). The object behind guarantee contained in 19(1)(d) and 19(1)(e) is to

make citizens national minded. It is to put an end to have parochial considerations.

These provisions have thus re all internal barriers within territory of India or any parts.

Right to Practice any Profession, or to Carry on Any Occupation, Trade or Business [Article

19(1)(g)]

Definition of Profession, Trade, Business and Occupation: The term Occupation means

some activity by which a person is occupied or engaged. It would be an activity of a

profession undertaken as a means of livelihood or a mission of life. The term Profession

has been interpreted to mean occupation requiring the exercise of intellectual skill,

coupled with manual skill. The term Business means activity involving the production,

distribution consumption of wealth and the production and availability of material

services. While trade is an activity concerning, sale and purchase of goods.

The Right is subjected to Clause (6) of Article 19.

Exceptions

Clause (6) of this Article provides: Nothing in sub-clause (g) of the said clause shall

affect the operation of any existing law so far as it important zones, or prevent the state

from making law imposing, in the interests of the general public, reason restrictions on

the exercise of the right conferred by the sub-clause and, in particular, nothing in the

said sub clause shall affect the operation of any existing law in so far as it relates to, or

prevent the state from making any law relating to-

The professional or technical qualifications necessary for practicing any profession or

carrying on any occupation, trade or business or

the carrying on by the state, or by a corporation owned controlled by the state, of any

trade, business, industry or service, whether to the exclusion, complete or part of

citizens or otherwise.

Protection in Respect of Conviction for Offences (Article 20)

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, nor 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.

No person shall be prosecuted and punished for the same offence more than once.

No person accused of any offence shall be compelled to be a witness against himself.

Available to all individuals and cannot be suspended even during emergency.

Conclusion of Article 20

An analysis of Article 20 leads us to the following conclusions

The state shall not enact ex-post facto criminal legislation. Ex-post facto law means enacting a

law and giving retrospective effect to it. Criminal legislations cannot be given retrospective

effect, but they should be given a prospective effect.

This Art prevents the government or the authority from misusing the law for its own self-

interest. The state shall not practice double jeopardy: Double Jeopardy means punishing an

individual twice for the same crime.

The state shall not compel an individual to provide self-incriminating evidence: Self-

incriminating evidence means compelling an individual to make a ' statement and making use

of that, statement in the court of law to get him punished. This is to save the individual from

the arbitrary acts of the executive.

Protection of Life and Personal Liberty (Article 21)

No person shall be deprived of his life or personal liberty except according to

procedure established by law.

Article 21, which cannot be suspended even during emergency secures two rights

1. Right to Life.

2. Right to Personal Liberty.

Right to Life

The right to life does not merely mean the continuance of a person's animal existence.

It means 'the fullest opportunity to develop one's personality and potentiality to the

highest level possible in the existing stage of our civilisation. The right implies a

reasonable standard of comfort and decency.

Right to life under Article 21 on face appears to be a colorless article. However, this

Article has been receiving the widest interpretations by the courts. It has given rise to

more number of inferred rights. Inferred right is one which is not explicitly provided in

the Constitution, but has been implied under the existing Constitution by the judiciary

by giving liberal interpretations.

Different Facets of Right to Life

Right to dignified life

Right to reputation

Right to livelihood

Right of a couple to adopt a son for making their life more meaningful Right not to

commit suicide

Right to shelter

Right against cruel punishment Right against denial of wages Right to speedy trial

Right to live in unpolluted environment

Right to health and timely medical aid

Right against delayed execution

Right to die with dignity

Right to sleep (SC Judgment on the police lathicharge in Ramlila Maidan on Baba

Ramdev's Supporters at midnight)

Right to Personal Liberty

Procedure Established by Law It’s a doctrine that originated in Britain. Procedure

established by law means that judiciary will look whether there is a law passed to the

effect or not. Secondly, it shall see whether the law has been passed by a competent

authority or not and thirdly, whether it has been passed in the prescribed manner or

not.

Due Process of Law The idea of due process of law has been borrowed from the US

Constitution. It says that, while looking into the interpretation of law the court shall

look into all the provisions of the procedure established by law and should also see

that whether the law is just, fair and reasonable or not. Thus, while procedure

established by law looks at only the letter of the law, Due Process of law looks at both

the letter and spirit of the law.

Different Facets of Right to Personal Liberty

Right to privacy

Right to go abroad

Right against illegal detention

Right to bail

Right against hand-cuffing

Right to write a book

Right against solitary confinement

Right to socialise

Under-trials not to be kept with convicts

Supreme Court's Verdict on Euthanasia

In a landmark judgment delivered by a two-judge bench of the Supreme Court (March, 2011)

in the Aruna Shanbaug case laid down a broad legal framework for dealing with a subject that

has not received the attention it deserves from the legislature.

Upholding the distinction between active euthanasia, which involves taking specific steps such

as injecting a person with a lethal substance and passive euthanasia, which is withdrawing

medical treatment with the knowledge that it will cause death, the court has held that the

latter is permissible in exceptional circumstances e.g., when a patient is kept alive purely

mechanically and when he or she is only able to sustain involuntary functioning through

advanced medical technology. Citing a slew of international case laws on the subject, the

Supreme Court has laid down a strict framework for the procedure to be adopted for non

voluntary passive euthanasia until suitable legislation is in place.

All mercy-killing pleas should be heard by a two-member bench of the appropriate High Court

and decisions may be taken only after seeking medical opinion from three empanelled doctors,

who must examine the patient, his or her medical records and also get the views of the

hospital staff.

Principle of Natural Justice

There are three principles of natural justice

No man can be a judge in his own case.

No man shall be punished unheard.

An authority while deciding an issue shall act in an unbiased manner.

Right to Education (Article 21A)

''The State shall provide free and compulsory education to all children of the age of 6

to 14 years in such a manner as the state may, by law, determine."

Article 21A was added by the 86th Constitution (Amendment Act), 2002.

Right to Education, Bill 2009

The Parliament on 3rd August, 2009 passed the Right of Children to Free and

Compulsory Education Bill, 2009. The Bill seeks to provide education to children

between 6 to 14 years of age.

The Bill, one of the flagship programmes in 100 day agenda of the UPA government

also earmarks 25 % seats to weaker sections in private schools.

The Bill also seeks to do away with the practice of schools taking capitation fees before

admission and subjecting procedure.

The Bill seeks to achieve ten broad objectives which include free and compulsory

education, obligation on the part of the state to provide education, nature of

curriculum consistent with Constitution, quality, focus on social responsibility and

obligation of teachers and debureaucratisation in admissions.

Protection Against Arrest and Detention in Certain Cases (Article 22)

No person who is arrested shall be detained in custody without being informed, as may be, of

the grounds for such arrest nor shall he be denied the right to consul to be defended by, a

legal practitioner of his choice.

Every person, who is arrested and detained in custody, shall be produced before nearest

magistrate within a period of twenty-four hours of such arrest excluding the necessary for the

journey from the place of arrest to the court of the magistrate an such person shall be

detained in custody beyond the said period without the authority a magistrate.

The analysis of the above provisions shows that Article 22 guarantees the folio' safeguards

against arrest or detention made under the ordinary law relating to commission of offences

Right to be informed, as soon as may be, of the grounds for arrest or detention,

Right to consult and be defended by a legal practitioner of his choice,

Right to be produced before the nearest magistrate within 24 hours of his arrest,

Right not to be detained in custody beyond 24 hours without the authority of magistrate,

Exceptions

Article 22(3) Nothing in Clauses (1) and (2) shall apply To any person who for the time being is an enemy alien; or To any person who is arrested or detained under any law providing for preventive detention, Article 22 says that theses rights are not available to the enemy aliens and secondly persons detained under the preventive detention laws. Safeguards Against Arrest or Detention made Under Preventive Detention Law [Articles 22(4)

to (7)]

Article 22(4)(a) A person arrested under a preventive detention law cannot be detain beyond

three months.

If he is to be detained beyond three months, his detention shall be approved by an Advisory

Committee/ Board headed by a sitting judge of the concerned High Court and other two

members shall be sitting or retired judges of the High Court. The opinion of the Advisory Board

confirming the detention must be obtained before the expiry of the first three months of

detention.

Preventive Detention

'Preventive detention' means the detention of a person without trial in such

circumstances that the evidence in possession of the authority is not sufficient to make

a legal charge. The justification for preventive detention is suspicion or reasonable

apprehension, reasonable probability, of the impending commission of an act

prejudicial to the state. The aim is to prevent the abuse of freedom anti-social and

subversive elements.

The Supreme Court in AK Gopalan v/s State of Madras case,1950 explaining the

necessity of provisions relating to preventive detain observed: This sinister-looking

feature, so strangely out of place il democratic Constitution, which invests personal

liberty with the sacrosanctity of a Fundamental Right and so incompatible with the

promises of preamble, is doubtless designed to prevent the abuse of freedom by anti-

so and subversive elements which might imperil the national welfare of infant republic.

Legislations on preventive Detention

Both, the Union Parliament and the State Legislatures are vested with pm to make

laws providing for preventive detention. Entry 9 in List I (Union List) of the Schedule

VIIth reads as "Preventive detention for reasons connected with defence, Foreign

affair, or the security of India; persons subjected to such detention."

Entry 3 in List III (Concurrent List) of the Schedule VIIth provides: "Preventive detention

for reasons connected with the security of a state, the maintenance of public order, or

the maintenance of supplies and services essential to the community; persons

subjected to such detention." It was on 26th February, 1950, that the first law relating

to preventive detention was placed on the Statute book. It was titled as the Preventive

Detention Act, 1950. The act was enacted with a view to preventing any person from

acting in a manner prejudicial to the Defence of India, the relation of India with foreign

powers, the security of India or a State or the maintenance of public order, the

maintenance of supplies and services essential to the community.

The preventive detention Act, 1950 was enacted as purely a temporary measure and

was to cease to have effect on 1st April, 1951. However, its life was extended from

time to time till it lapsed on 21st December, 1969.

Other Laws of prevention Detention

A new law relating to preventive detention, titled as the Maintenance of Internal

Security Act, 1971 (MISA), was enacted, which was continued until it was repealed on

3rd August, 1977.

Another Preventive Detention law in the form of Prevention of black-marketing and

maintenance of Supplies of Essential Commodities Act, 1980, was enacted with a view

to prevent black marketing or hoarding of essential commodities. The Act is still in

force.

The National Security Ordinance, 1980 was promulgated by the President in

September, 1980, providing for preventive detention of persons responsible for

communal and caste riots and other activities prejudicial to the security of the country.

It was replaced by the National Security Act, 1980.

It provides for preventive detention of persons acting in any manner prejudicial to the

defence of India, the relations of India with foreign powers, the security of India, the

maintenance of supplies and services essential to the community and also for

regulating the presence or expulsion of a foreigner from India. The NSA, 1980, is still in

force.

To deal with specific situation of terrorism in Punjab, Jammu and Kashmir and other

parts of the North- East, the Terrorist and Disruptive Activities (prevention), 1985,

(TADA), was enacted, (modified in 1987) providing for preventive detention of persons

assisting or rendering any assistance to terrorists or destructionists.

The TADA was repealed in May, 1995. A softer version of the defunct TADA has been

brought in on 17th October, 2001, in the form of the Prevention of Terrorism

Ordinance, 2001, with the object of rubbing out the terrorists with bases in foreign

countries. The Ordinance was replaced by the Prevention of Terrorism Act, 2002 but

that too was repealed on 23rd October, 2004.

In addition to the above laws, the Central laws which provide for preventive detention,

which are presently in force, include the Conservation of Foreign Exchange and

Prevention of Smuggling Act, 1974; the Prevention of Illicit Traffic in Narcotic Drugs

and Psychotropic Substances Act, 1988.

The Constitution (44 Amendment) Act, 1978

It proposed to amend Clause (4)(a) of Article 22 to the effect that

A detention without obtaining the opinion of the Advisory Board shall continue for not

more than two months. This change was to be brought into force by a notification by

the Government of India. As yet no such notification has been issued and therefore the

law remains as it was prior to the said amendment act.

The detaining authority must communicate, as soon as may be, to the detenu, the

grounds of such detention;

The detaintion must be afforded the earliest opportunity to make a representation

against the order of detention.

No detention beyond the maximum period prescribed under a law made by Parliament

under Clause 7(b).

Supreme Court on Preventive Detention

In the Pooja Batra v/s UOI Case 2009, the Supreme Court has held that a person cannot

be held in preventive detention (custody) without adequate evidence as otherwise it

would be violated of his or her personal liberty guaranteed by the Constitution.

In matters relating to preventive detention, authorities have to examine whether there

was any organised act or activities giving room for an inference that the detainees

would continue to indulge in similar prejudicial activity warranting detention of the

person, the apex court said.

"In an appropriate case, if there is no adequate material for arriving at such a

conclusion based on solitary incident the court is required and is bound to protect him

in view of the personal liberty, which is guaranteed under the Constitution of India," a

Bench of Justices Dalveer Bhandari and P Sathasivam observed.

Under law, a person can be held under 'preventive detention' for a certain period if

there are sufficient evidence to indicate that the accused has the propensity to indulge

in criminal activities, if he/she is not detained by the authorities.

The Bench passed the observation while upholding an appeal filed by Pooja Batra

challenging the preventive detention of her husband Deepak Batra by Customs

authorities under the Conservation of Foreign Exchange and Prevention of Smuggling

Activities Act (COFEPOSA).

Right Against Exploitation (Articles 23-24)

Prohibition of Traffic in Human Beings and Forced Labour (Article 23)

Article 23 (1) Traffic in human beings and beggar and other similar forms of forced

labour are prohibited and any contravention of this provision shall be an offence

punishable in accordance with law. Traffic in Human beings means engaging in slavery

and servitude and forcing women, children and the crippled in immoral activities.

Beggar means forced labours with or without payment.

Exceptions under Article 23

Article 23(2)- Nothing in this article shall prevent the state from imposing compulsory

service for public purposes, and in imposing such service the state shall not make any

discrimination on grounds only of religion, race, caste or class or any of them.

For instance during elections the state can compel the government officials to do

duties and during war the state can compel the individuals to work in auxiliary units.

Notes on Article 23 Article 23(1) envisages legislation for the enforcement of the

Constitutional prohibition. Section 374 of the Indian Penal Code is one such

enactment, though a pre-Constitution one. Specific legislation also exists regarding

immoral traffic in women and girls and regarding bonded labour.

The Immoral Traffic (Prevention) Act 1956, was initially enacted as the 'Suppression of

Immoral Traffic in Women and Girls Act, 1956' in pursuance of the International

Convention for the Suppression of the Traffic in persons and of the exploitation of the

prostitution of others signed at New York on 9th May, 1950. This Act was amended

twice, once in 1978 and second time in 1986.

Prohibition of Employment of Children in Factories, etc. (Article 24)

No child below the age of fourteen years shall be employed to work in any factory or

mine or engaged in any other hazardous employment. This right can be enforced

against both the State and an individual.

Recently, Union Cabinet approved a proposal for amending the Child Labour

(Prohibition and Regulation) Act 1986, to ban employment of children aged up to 14

in any form of industry. It will be an offence to employ such children not only in

features or industries (as it is at present,) but also in homes or in farms, if their labour

is meant to serve any commercial interest. It is to be noted that Article 24 does not

abolish child labour in its present form because children below 14 years of age can be

employed in non hazardous industries.

Right to Freedom of Religion (Articles 25-28)

Freedom of Conscience and Free Profession, Practice and Propagation of Religion (Article 25)

25 (1) Subject to public order, morality and health and t other provisions of this part,

all persons are equally entitled to freedom of conscience and the right freely to

profess, practice and propagate religion. This Clause secures to every person

1. Freedom of Conscience.

2. Right to practice, profess and propagate the religion of one’s own choice.

(i) Freedom of conscience. The expression 'free do conscience' means the inner-

freedom of an individual mould his religious views. Any belief which is genuinely and

conscientiously hold, attracts the protection of Article 25(1).

(ii) To profess means to declare freely and openly one’s faith or belief. It is to declare

one's belief in such a way that it would be known to those whom it may concern. To

Practice means to perform religious duties, rite rituals.

To propagate means to spread and publicise one’s religious views. However, it does not

confer Fundamental Right on an individual to convert other to his own religion.

Supreme Court made a distinction between religious beliefs and opinion on one hand

and religious practice and conduct the other. The state cannot interfere in case of the

former, 1 it can do so in case of the latter.

Freedom to Manage Religious Affairs (Article 26)

Subject to public order, morality and health, every religious denomination or any

section thereof shall have the right

1. to establish and maintain institutions for religious are

Charitable purposes;

2. To manage its own affairs in matters of religion;

1. To own and acquire movable and immovable property; and

4. To administer such property in accordance with law.

However, the affair of these institutions can be regulated of the maintenance of

public order, decency etc.

Terminologies Used In ride 26

Conscience Absolute inner freedom of the citizen to mould his/her relation with God in

whatever manner he/she likes.

Profess To declare freely and openly one's faith and belief.

Practice to perform the prescribed religious duties, rites and rituals and to exhibit his religious

beliefs.

Propagate Spread and publicise his/her religious views for the edification of others. It only

indicates persuasion and exposition without any element of coercion.

Legislations on Conversion

The legislative history relating to the issue of conversion in India underscores the point that

the authorities concerned were never favourably disposed towards conversion. While British

India had no anti-conversion laws, many princely states enacted anti conversion legislation:

The Raigarh State Conversion Act, 1936, the Patna Freedom of Religion Act of 1942, the

Sarguja State Apostasy Act, 1945 and the Udaipur State Anti Conversion Act 1946. Similar laws

were enacted in Bikaner, Jodhpur, Kalahandi and Kota and many more were specifically

against conversion to Christianity.

In the post independence era, Parliament took up for consideration in 1954 the Indian

Conversion (Regulation and Registration) Bill and later in 1960 the Backward Communities

(Religious Protection) Bill, both of which had to be dropped for lack of support. The proposed

Freedom of Religion Bill 1979, was opposed by the Minorities Commission due to the Bill's

evident bias.

As early as 1967, it became evident that the concern was not just with forced conversion, but

with conversion to any religion other than Hinduism and especially Christianity and Islam. In

the Orissa and Madhya Pradesh Acts, the punishment was to be doubled if the offence had

been committed in respect of a minor, a woman or a person belonging to the Scheduled Caste

or Scheduled Tribe community.

These may be seen as further reinforcing the several statutory penalties for ceasing to be a

Hindu such as the 1955-56 Hindu Law enactments namely Hindu Minority and Guardianship

Act, 1956 (Section 6), Hindu Adoption and Maintenance Act, 1956, (Sections 7, 8, 9, 11, 18 24),

Hindu Marriage Act, 1955, (Sections 13 (ii), 13 A) and the Hindu Succession Act (section 26).

The picture is complete if we account for the fact that most of these laws are aimed to keep

the low caste Hindus within the fold of Hinduism. And so while law prohibits conversion,

'reconversion' of low caste Hindus is permissible. If a low caste Hindu who had converted to

another faith or any of his descendants reconverts to Hinduism, he might get back his original

caste (Kailash Sonkar (1984); S Raja Gopal AIR 1969).

Freedom From Payment of Taxes for Promotion of any Particular Religion (Article 27)

No person shall be compelled to pay any taxes, the proceeds of which are specifically

appropriated in payment of expenses for the particular religion or religious denomination.

Freedom From Attending Religious Instruction (Article 28)

1. No religious instruction shall be provided in any educational institution wholly maintained

out of state funds.

2. Nothing in Clause (1) shall apply to an educational institution which is administered by the

state, but has been established under any endowment or trust which requires that

religious instruction shall be imparted in such institution.

3. No person attending any educational institution recognized by the state or receiving aid

out of state funds shall be required to take part in any religious instruction that may be

imparted in such institution or to attend any religious worship that may be conducted in

such institution or in any premises attached thereto unless such person or, if such person is

a minor, his guardian has given his consent thereof.

An analysis of Article 28 shows that the provision relates to religions instructions to be

imparted in educational institutions. For this purpose Article 28 divides educational institutions

under four heads.

1. Educational institutions owned and controlled completely by the state, in such institutions

no religions instructions can be imparted.

2. The institutions that receive aid out of the state funds, in such institutions religious

instructions may be imparted, but the students cannot be compelled to undertake these

instructions.

3. Institutions recognised by the state, in such institutions religious instructions may be

imparted, but the students are not compelled to follow it.

4. The educational institutions that are administered by the state, but have been established

by charitable institutions and endowments. Here religious instructions may be imparted

and the students have to compulsorily take over the instructions.

Cultural and Educational Rights (Articles 29-30)

Protection of Interests of Minorities (Articles 29)

1. Any section of the citizens residing in the territory of India or any part thereof having a

distinct language, script or culture of its own shall have the right to conserve the same.

2. No citizen shall be denied admission into any educational institution maintained by the

state or receiving aid out of state funds on grounds only of religion, race, caste, language

or any of them.

Right of Minorities to Establish and Administer Educational Institutions (Article 30)

Article 30(1) says that all minorities, whether religious or linguistic, shall have the Right to

Establish and Administer Educational Institutions of their Choice. Clause l(A) added by the

44th Amendment, in effect provides that if the property of any such institution is acquired, the

compensation paid would be proper and adequate, so that the right given by the article

remains meaningful.

Clause 2 provides that in the matter of giving aid, the state shall not discriminate against

minority managed institutions. Thus, the protection under Article 30 is confined only to

minorities (religious or linguistic) and does not extend to any section of citizens (as under

Article 29). However, the term minority has not been defined anywhere in the Constitution.

The Right to Administer however, does not mean Right to Maladministration. The

right is subject to regulatory power of the State.

Legislation in the interests of social welfare, industrial relations, academic standards,

efficiency, discipline, health, sanitation, public order, morality, reasonable

regulation to prescribe syllabus etc, does no violence to Article 30 so long as it does

not deprive the minority of its Right to Manage the Institution.

Minority educational institutions are of three types

1. Institutions that seek recognition as well as aid from the state.

2. Institutions that seek only recognition from the state and not aid.

3. Institutions that neither seek recognition nor aid from the state.

Article 30 has been criticised inter alia on the ground that the Right to Establish and

administer educational institutions of their choice available to the minorities is

denied to the majority community.

Also, since the term minority has not been defined in the Constitution anywhere and

there are advantages in belonging to the minority, groups within the majority Hindu

fold have started claiming minority status e.g., Arya Samaj in Punjab. Hence, at

present right to property is only a legal right, but not a Fundamental Right.

Right to Property

The provisions relating to the Right to Property were changed a number of times. The

44th Amendment of 1978 deleted the Right to Property from the list of Fundamental

Rights as mentioned in Article 31 by the then Morarji Desai Government. A new

provision, Article 300A, was added to the Constitution which provided that no person

shall be deprived of his property saved by authority of law.

Saving of Laws Providing for Acquisition of Estates (Article 31A)

Article 31A deals with saving certain categories of laws even if, they are in

contravention with the Fundamental Rights. It states that notwithstanding anything

contained in Article 13, no law providing for following provisions (as mentioned in

Clauses from (a) to (e) ) shall be deemed to be void on the ground that it is

inconsistent with, or takes away or abridges any of the rights conferred by Article 14

or Article 19.

The acquisition by the State of any estate or of any rights therein or the

extinguishment or modification of any such rights. The taking over of the

management of any property by the State for a limited period either in the public

interest or, in order to secure the proper management of the property.

The amalgamation of two or more corporations either in the public interest or, in

order to secure the proper management of any of the corporations.

The extinguishment or modification of any rights of managing agents, Secretaries and

treasurers, Managing Directors, Directors or managers of Corporations, or of any

voting rights of shareholders thereof.

The extinguishment or modification of any rights accruing by virtue of any

agreement, lease or license for the purpose of searching for, or winning, any mineral

or mineral oil, or the premature termination or cancellation of any such agreement,

lease or license.

Validation of Certain Acts and Regulations (Article 31B)

Article 31B saves the Acts and Regulations included in the Schedule IXth from being

challenged and invalidated on the ground of contravention of any of the

Fundamental Rights.

However, the Supreme Court in 2007, ruled that there could not be any blanket

immunity from judicial review of laws included in the Schedule IXth.

The Court held that judicial review is a basic feature of the Constitution and it could

not be taken away by putting a law under the Schedule IXth.

It ruled that the laws placed under schedule IXth after 24th April, 1973 are open to

challenge in court violated fundamental Right, Articles 14, 15, 19 and 21 or the (basic

structure) of the Constitution, on 24th April, 1973 that the court had first expounded

the doctrine of (basic structure).

Saving of Laws Giving effect to Certain Directive principles (Article 31 C)

Article 31 C was added as part Amendment Act. It states that that seeks to

implement the Soc Directive Principles specified in

Article 39(b) or 39 (c), shall be void on the ground of contravention ' Fundamental

Rights conferred Article 14 or Article 19.

Right to Constitutional Remedies (Article 32)

It is true that a declaration Fundamental Rights is meaning unless there is effective

machinery the enforcements of the rights. Remedy, which makes the right real.

If there is no remedy, there is no respect of fundamental rights. It was therefore, in

the fitness things that our Constitution makers having incorporated a long list

Fundamental Rights have provided for an effective remedy for enforcement of these

rights under Article 32 of the Constitution. Article 32, itself is a Fundamental Right.

Article 32 confers one of the ‘highly cherished rights’. This right has been held to be

an important and integral part of the basic structure of the Constitution.

It empowers an individual to approach the Supreme Court directly in case his one or

more Fundamental Rights are violated.

“If l was asked to name any particular article in the Constitution as the most

important an article without which the Constitution would be a nullity-L-could not

refer to any other article except his one. It is the very soul of the Constitution and the

very heart of it. ” Dr BR Ambedkar.

Article 32 has been described as the cornerstone of the democratic edifice raised by the Constitution. In the Ramesh Thapar v/s State of Madras Case 1950, the Supreme Court held that it is because of this article that the Supreme Court should be declared as the guardian or protector of Fundamental Rights.

The apex court further held that the Supreme Court could not, consistently with the responsibility laid upon it, refuse to entertain applications seeking protection against infringements of such rights.

For the proper enforcement of the Fundamental Rights Article 32(2) gives the Supreme Court the power to issue writs. A writ is an order or command issued by a court in writing under its seal.

Writs originated under the Roman law, but have been developing under the British

Constitution. The concept of writs has been borrowed from the British Constitution. It is in

the nature of a command or prohibition from performing certain acts that are specified in

the orders of the court.

Petition under Article 32 and Res Judicata

Res Judicata is a rule of public policy that there should be finality to binding decisions of courts of competent jurisdiction and that parties to the litigation should not be vexed with the same litigation again.

The principle is embodied in Section 11 of the Code of Civil procedure. If a question has been

once decided by the Supreme Court under Article 32, the same question cannot be reopened,

again under Article 226. In Daryao v/s state of UP Case, 1961, it was held that where the

matter had been heard and decided by the High Court under Article 226, the writ under Article

32 is barred by the rule of res judicata and could not be entertained. But there is an important

exception to the rule of res judicata.

In Gulam Sarvar v/s Union of India Case 1967, the court held that the rule of res judicata is not

applicable in the writ of habeas corpus and where the petitioner has been refused a writ from

the High Court, he may file a petition for the same writ under Article 32.

Amendment to the Fundamental Rights Since 1995

77th Constitution Amendment Act, 1995

The amendment introduced a new Article 16(4A) which provides that the reservation in favour of the Scheduled Castes and Scheduled Tribes can be made in promotion in the public services.

81st Constitution Amendment Act, 2000 This amendment also adds another Article 16(4B) which provides that the number of unfilled posts of the Scheduled Castes, Scheduled Tribes and Other Backward Castes shall not be included in the number of fresh vacancies to be filled up. The implication of this amendment is that the number of backlog vacancies shall lie beyond the permissible limit of 50% of vacancies in the reserved category.

82nd Constitution Amendment Act, 2000 This amendment inserts a new proviso in Article 335, which provides that the state may relax the minimum qualifying marks for the Scheduled Castes and Scheduled Tribes candidates in promotional examinations.

85th Constitution Amendment Act, 2002 It effects further amendment to Article 16(4A) which provides that consequential seniority shall also be taken into consideration in promotions of Scheduled Castes and the Scheduled Tribes candidates to various government posts.

86th Constitution Amendment Act, 2002 This amendment inserts Article 21A, which provides Fundamental Right to free and compulsory education to children from 6 to 14 years of age in a manner determined by law by the state.

93rd Constitution Amendment Act, 2005 This amendment act inserts Article 15(5), which authorises the state to make special provisions for the advancement of any socially and educationally backward classes of citizens or for the Schedule Castes and the Schedule Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the state, other than the minority educational institutions referred to in clause(1) of Article 30.

Members of Armed Forces and the Fundamental Rights

Article 33 provides that Parliament may, by law, determine to what extent any of the rights

conferred by this Part shall, in their application to

the members of the Armed Forces; or the members of the Forces charged with the maintenance of public order; or persons employed in any bureau or other organisation established by the State for purposes

of intelligence or counter intelligence; or

persons employed in, or in connection with, the telecommunication systems set-up for the

purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or

abrogated so as to ensure the proper discharge of their duties and the maintenance of

discipline among them

Article 33 enables Parliament to modify Fundamental Rights in relation to military or para-

military forces, police forces and analogous forces. The restrictions on the Fundamental Rights

under Article 33 can be imposed only by Parliament by law. Prior to the Constitution (50th

Amendment) Act, 1984, Article 33 empowered the imposition of restrictions on Fundamental

Rights only in respect of members of Armed Forces or the forces charged with the

maintenance of public order. The amendment included the later two more categories of

persons.

Restrictions on Fundamental Rights during the Operation of Martial Law

Article 34 provides "Notwithstanding anything in the foregoing provisions of this Part,

Parliament may by law indemnify any person in the service of the Union or of a 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 within the territory of India where martial law was in

force or validate any sentence passed, punishment inflicted, forfeiture ordered or other

act done under martial law in such area."

Article 34 empowers Parliament to make any law for indemnifying any person for acts done during the operation of martial law. The power of Parliament is subject to two conditions 1. The act must have been done in connection with the maintenance or restoration of order. 2. Martial law must be in force in the area where the act was done.

In the proper sense of the term, martial law means' the suspension of ordinary

government of a country or part of it by military tribunals.' It must be noted that the

Constitution does not have a provision authorising proclamation of martial law.

However, it is implicit in the text of Article 34 that the government may declare martial

law in any part of the territory of India.

Article 35 (Legislation to give effect to the provisions of this part)- This article provides

for powers to make laws on certain articles in this part only on the Parliament and

excludes the state legislatures jurisdiction from them. These Articles are 16(3), 32(3), 33

and 34. The jurisdiction to make laws for punishment under articles, which declare

certain acts to be offences. This includes Article 17 on untouchability and Article 23 on

trafficking in human beings and forced labour also lies exclusively with the Parliament

and not State Legislatures

Writ Jurisdiction of Supreme Court and High Courts

Under Article 32 of the Constitution, the Supreme Court can issue writs for enforcement of the Fundamental Rights only. On the other hand, under Article: of the Constitution, the High Courts have been empowered to issue writs for enforcement of the Fundamental Rights as well as other legal rights of individuals. Thus, the writ jurisdiction of the High Courts is wider than that of Supreme Court.

Under Article 32 of the Constitution, the Supreme Court is bound to issue writs if

individual approaches the apex Court on the violation of the Fundamental Rights. On

the other hand, under Article 226 of the Constitution, the High Courts are· bound to

issue writs. They can suggest some alternatives also. Thus, the Supreme Court has been

made the custodian or the guardian of the Fundamental Rights of citizens.

Difference between Writ Jurisdiction of Supreme Court and High Court

Supreme Court High Court

The Supreme Court can issue writs only

for the enforcement of Fundamental

Rights

High court can issue writs not only for the

enforcement of Fundamental Rights, but

also for any other purpose. The

expression ‘for any other purpose’ refers

to the enforcement of an ordinary legal

right.

The Supreme Court can issue writs

against a person or Govermment

throughout the Territory of India

High Court can writs against a person

residing or against a Govermment or

authority located within its territorial

jurisdiction only or outside its territorial

jurisdiction only if the cause of action

arises within its territorial jurisdiction.

A remedy under Article 32 is in itself a

Fundamental Rights and hence, the

Supreme Court may not refuse to

exercise its Writ Jurisdiction.

A remedy under Article 226 is

discretionary and hence, a High Court

may refuse to exercise its Writ

Jurisdiction.

Types of Writs

Habeas Corpus

It literally means 'to have the body'. It can be issued against the state as well against an

individual. It is issued in order to safeguard the individual liberty. It issued in case of

wrongful confinement by an individual by illegal detention by t state. The court can

order that the detained person be produced before the court order to ascertain or

verify the grounds of his detention. If the detention is found illegal, the court shall order

the release of the person. Thus, this writ is essential to maintaining individual liberty. It

can be filed against state by any individual and organisation and not necessarily the

aggrieved individual. Principle of 'Locus standi’ does not apply in case of Habeas Corpus.

Mandamus

It literally means command. It can be issued only against a public authority or public

organist private individuals or orgainsations. This writ is in the form of a command to

the public official asking him to perform his official duties that he has failed or

refused to perform. It can also be issued against any public body, a corporation, an

inferior court, a tribunal or government for the same purpose.

It cannot be issued against the President or governor of State or private

organizations. It cannot be issued against a private individual or body, to enforce

departmental instructions, which do not carry statutory force, when the duty is

discretionary and mandatory, to enforce a contract, against the Chief Justice of a

High Court acting in a judicial capacity. Principle of Locus standi applies i.e., only the

aggrieved individual can file a case under mandamus.

Prohibition

It is a writ issued by a higher court to a lower court or a quasi-judicial body. It cannot be issued

against non-judicial bodies. This writ is issued on the ground of excess of jurisdiction, absence

of jurisdiction or for acting in violation of principle of natural justice. It is a prohibitive writ ie.,

the writ is in the form of prohibiting the judicial or quasi-judicial body from proceeding further

with a case. Principle of Locus standi applies.

Certiorari

This writ is similar to the writ of prohibition except that prohibition is issued when the case is

pending in the court of law while the writ of certiorari is issued when the judgment or order or

direction has been given by the court to quash that judgment. Locus standi applies to

certiorari. Earlier, this writ was available only against judicial and quasi-judicial bodies.

However in 1991, the Supreme Court ruled that certiorari can also be issued against

administrative bodies affecting rights of individuals. It is not available against legislative bodies

and private individuals and bodies. It is issued by a higher court to a lower court or tribunal

either to transfer a case pending with the latter to itself or to squash the order of the latter in

a case. It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law.

Unlike prohibition, which is only preventive, certiorari is both preventive and curative.

Quo Warranto

It literally means 'what is your authority'? The writ is issued to call upon the holder of -a public

office to show to the court, under what authority he is holding that office. The purpose of the

writ is to prevent a person from holding an office, which he is not legally entitled to hold.

Locus standi does not apply in case of Quo Warranto. It can only be issued in case of a

substantive public office of a permanent character created by a statute or under the

Constitution. It cannot be issued in case of a ministerial or private office.

Directive Principles of State Policy

An important feature of the Constitution is the directive Principles of State Policy. Part IV of

the Constitution relates to the Directive Principles of State Policy. Although, the directive

Principles are asserted to be “fundamental in the governance of the country,” they are not

legally enforceable.

Introduction

Directive Principles are guidelines for creating a social order characterised by social,

economic and political justice, liberty, equality and fraternity as enunciated in the

Constitution's Preamble.

Object and Purpose behind the

Directive Principles

The roots of the Directive Principles may be traced back to the 1931 Karachi Resolution or farther, to the two streams of socialist and nationalist sentiments in India that had been flowing ever faster, since the late twenties. It is not unreasonable to conjecture also that the placing on the government of a major responsibility for the welfare of the mass of Indians had an even deeper grounding in Indian history.

Under the Mughal Rule or the British Raj, the masses had, generally speaking, looked

to the ruler for dispensations both evil and good. Heir to this tradition, the members of

the Constituent Assembly believed that the impetus for bringing about the social

revolution continued to rest with the government. The inspiration for including the

Directive Principles in the Constitution is drawn from the Constitution of Ireland. The

Directive Principles set forth the ideals and objectives to be achieved by the State for

setting up in India a Social welfare State, as distinguished from a mere Police State.

The basic aim of the welfare State is the attainment of substantial degree of social,

economic and political equalities; to provide the means, whereby all its members can

reach minimum standard of economic security, civilized living, capacity to secure social

status and culture to keep good health.

The Welfare State, therefore, should take positive measures to assist the community at

large to achieve the above discussed aspects. Democracy will become real when in

practice there is sharing of power and responsibility by all sections of the people and it

becomes illusory when it is about pursuit of power by the dominate sections alone.

The Directive Principles cannot be confined to mere rhetoric or to ad hoc policies of

electoral appeasement or handouts.

Part IV Directive Principles of State Policy

Article 36 Definition.

Article 37 Application of the principles contained in this part.

Article 38 State to secure a social order for the promotion of welfare of the

people.

Article 39 Certain principles of policy to be followed by the State.

Article 39A Equal justice and free legal aid.

Article 40 Organization of Village Panchayat.

Article 41 Right to work, to Education and to Public Assistance in certain cases.

Article 42 Provision for just and humane conditions of work and maternity relief.

Article 43 Living wage etc, for workers.

Article 43A Participation of workers in management of industries.

Article 43B Promotion of cooperative societies.

Article 44 Uniform Civil Code for the citizens.

Article 45 Provision for free and compulsory education for children.

Article 46 Promotion of educational and economic interests of Scheduled Castes,

Scheduled Tribes and other weaker sections.

Article 47 Duty of the State to raise the level of nutrition and the standard of

living and to improve public health.

Article 48 Organization of agriculture and animal husbandry.

Article 48A Protection and improvement of environment and safeguarding of

forests and wildlife,

Article 49 Protection of monuments and places and objects of national

importance.

Article 50 Separation of judiciary from executive.

Article 51 Promotion of International Peace and Security.

The Directive Principles contain the social, economic, cultural and educational

objectives of the State. These provide a motivation for a peaceful political revolution.

These also provide a programme for social reconstruction and economic upliftment of

the people of India. In the opinion of Dr LM Singhvi, an eminent jurist, "the Directive

Principles of State Policy are the life-giving provisions of the Constitution. These

principles constitute the stuff of the Constitution and its philosophy of social justice.

These principles represent the pledges and the promises of our Constitution which is

not merely a literary document but a living instrument." Article 36 provides that the

meaning of state in this part of the Constitution is the same as that in the Part III on

Fundamental Rights. Article 37 provides that the provisions of this part of the

Constitution (DPSPS) are not enforceable in any court of law, but the principles

contained in them are fundamental to the governance of the country. It will be the

duty of the state to apply these principles in making laws.

Classification of Directive Principles

The Directive Principles are meant to be the fundamental principles, which should necessarily be made the basis of all executive and legislative action that may be taken in the governance of the country. The Directive Principles are unique blend of Socialist, Gandhian and Western Liberal principles. Socialist principles

Article 38,State to secure a social order for the promotion of welfare of the people.

The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order, in which justice, social, economic and political, shall inform all the institutions of the national life. The State shall, in particular, strive to minimise the inequalities in income and endeavor to eliminate the inequalities in status facilities and opportunities, not only amongst individuals, but also among groups of people residing in different areas and engaged in different vocations. Article 39 Certain principles of policy to be followed by the State. The State shall, in particular, direct its policy towards securing (a) That the citizens, men and women equally, have the right to an adequate means of

livelihood; (b) That the ownership and control of the material resources of the community

are, so distributed as best to sub serve the common good; (c) That the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; (d) That there is equal pay for equal work for both men and women; (e) That the health and strength of workers, men and women and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; (f) That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. Gandhian Principles Article 40- Organisation of Village Panchayats. And endow them with such powers and authority as may be necessary to enable them to function as units of self-government.

Article 46- Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections. The State shall promote with special care the educational and economic interests of the weaker sections of the people and, in particular, of the Scheduled Castes and the Scheduled Tribes and shall protect them from social injustice and all forms of exploitation. Article 47- Duty of the State to raise the level of nutrition and the standard of living

and to improve public health. The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs, which are injurious to health. Article 41- Right to work, to education and to public assistance in certain cases. The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement and in other cases of undeserved want. Article 42- Provision for just and humane conditions of work and maternity relief. The State shall make provision for securing just and humane conditions of work and for maternity relief. Article 43 -The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas. Article 43A- Participation of workers in management of industries. The State shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organisations engaged in any industry. Article 45- Provision for early childhood care and education to children below the age of six years. The State shall endeavour to provide, early childhood care and education for all children until they complete the age of six years. Article 48- Origassation of agriculture and animal husbandry. The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds and prohibiting the slaughter, of cows and calves and other milch and draught cattle. Liberal Principles Article 39A- Equal justice and free legal aid. The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Article 44- Uniform Civil Code for the citizens. The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. Article 48A- The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 49- It shall be the obligation of the state to protect every monument or place or object of artistic or historic interest (declared by or under law made by Parliament), to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be. Article 50- Separation of judiciary from executive. The State shall take steps to separate the judiciary from the executive in the public services of the State. Article 51- Promotion of international peace and security. The State shall endeavour to Promote international peace and security; Maintain just and honourable relations between nations; Foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and Encourage settlement of international disputes by arbitration.

Nature of Directive Principles These are positive obligations The Directive Principles impose positive obligations on the State. The Directive Principles can be implemented by executive action, so as they do not contravene any law. The other instruments of the state have the obligation to follow these Directives and to act in consonance with these Directives These are in the form of general instructions The Directive Principles are in form of general instructions to the state They are non-justifiable Article 37 expressly declares that the Dir Principles shall not be enforceable by any court. But this non-enforceable nature does not reduce the importance of the Directive Principles, for these Directives h been, at the same time, declared as fundamental in the governance of the count. has, been further, been laid down a duty of the State to apply these Directive Principles while making laws. Directive Principles Added in Different Amendments 42nd Amendment Act, 1976 Article 39 (f) Provision of opportunities and facilities to children to develop in a healthy manner and, In a condition of freedom and dignity and protection of childhood and youth against exploitation and against moral and material abandonment. Article 39A Provision for equal justice and free legal aid in order to ensure that justice is not denied to any citizen by reason of economic and other disabilities. Article 43A- Making provision for participation of workers in management of industries. Article 48A- Protection of environment and wildlife. 44th Amendment Act, 1978 Article 38(2)- Provides that the State shall strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals, but also amongst groups of people residing in different areas or engaged in different vocations. 86th Amendment Act, 2002 This Act modified the Directive Principles of States Policy. Article 45- It provides that the State shall endeavour to provide early childhood care and education for all children until they complete the age of six years. Relationship between Directive Principles and Fundamental Rights One of the main objectives of the Constitution makers including the Directive Principles in the Constitution was to lay down certain principles for the guidance of the Government of the day. While formulating the policies for the governance of the State, the Governments are expected to act according to these principles. During the freedom struggle of India, our national leaders had made promise; regarding the Fundamental Rights that the citizens of free India should get. The Fundamental Rights included not only civil and political rights, but also social and economic rights. But, when India got independence, the leaders realised that it would not be possible for them to grant immediately some of the social and economic rights that they had promised in the past. But at the same time they did not want to default on their past promises. They wanted some way out of this hurdle. They assigned this task to a sub-committee of the Constituent Assembly. The subcommittee suggested that the Fundamental Rights should be divided into two categories. Some rights could be granted immediately and others may be granted in future, if and when the country was in a position to grant them. This was the genesis of the two Parts of the Constitution. Part III of the Constitution deals with Fundamental

Rights while Part IV deals with the Directive Principles of State Policy. Difference between Directive Principles and Fundamental Rights While the Fundamental Rights constitute limitations upon state action, the Directive Principles are in the nature of instruments of instruction to the government of the day to do certain things and to achieve certain ends by their actions. Fundamental Rights are justifiable, but the Directive Principles are non-justifiable. One can approach the courts even the higher judiciary for the enforcement of Fundamental Rights where as one cannot approach the courts for the implementation of the Directive Principles. The directives, however, require to be implemented by legislation and, so long as there is no law carrying out the policy laid down in a Directives, neither the state nor individual can violate any existing law or legal right under colour of following a Directives. The Fundamental Rights lay down the negative obligation of the state. They are prohibitive in character and are, in fact, in the nature of injunctions requiring the state not to do certain things. Directive Principles are, on the contrary, affirmative directions dealing with the positive obligations of the state towards the citizens, they declare the duty of the state to promote certain social and economic objectives. The main objective of Fundamental Rights is to establish political democracy, by guaranteeing equality, liberty, religious freedom and cultural rights but the aim of Directive Principles of state policy is to establish just social, economic and political order. Cases Connected to Directive Principles and Fundamental Rights The first important case regarding the relationship between the Fundamental Rights and Directive Principles was the Champakam Dorarirajan v/s State of Madras 1951. In this case the Supreme Court ruled that the reservation of seats in the educational institutions and public employment provided by the State of Madras is unconstitutional and void as it violated right to equality. The Supreme Court ruled that the Directive Principles shall remain subordinate to the Fundamental Rights. However Supreme Court realised the importance of the Directive Principles and in the Re Kerala Education Bill Case, 1957 formulated the Theory of harmonisation. Under this theory the court held that there is no inherent conflict between the Directive Principles and Fundamental Rights. They are supplementary to each other and aim towards achieving the same goal. They together constitute an integrated scheme; it is the duty of the court to interpret the provisions of the Constitution in such a manner, so as to harmonies the Fundamental Rights and Directive Principles as far as possible The Supreme Court in the Minerva Mills Limited Case 1980 viewed that Part III and Part IV of the Constitution are complementary and supplementary to each other. The Court observed that the Constitution was founded on the bed-rock of balance between the Fundamental Rights and Directive Principles. To give absolute primacy to one over the other was to disturb the harmony of the Constitution. In the Rajan Dwivedi v/s Union of India Case 1983, the Supreme Court held that both the Fundamental Rights and Directive Principles aim at the same goal of bringing about a social revolution and the establishment of a Welfare State. It is a mandate of the Constitution not to the Legislature and the Executive only but to the courts as well. In conclusion, we may hold that there is no inherent conflict between the Fundamental Rights and the Directive Principles. Both are complementary and supplementary to each other and both work towards the aim of the establishment of social and political democracy.

Supremacy of Directive Principles over Fundamental It was in 1971 that the first step was taken to provide supremacy for Directive Principles in the form of Article 31C which was added to the Constitution by the Constitution (25th Amendment) Act, 1971. The effect of the insertion of Article 31C was to provide supremacy for Directive Principles contained in Articles 39(b) and 39(c) over Fundamental Rights contained in Articles 14, 19 and 31. It enhanced the utility of the Directive Principles, which had stood the testimony of the Supreme Court in Keshavananda Bharti Case 1973. The Court observed. In building up a just and social order it is sometimes imperative that the Fundamental Rights should be subordinated to Directive Principles ... economic goals have an uncontestable claim for priority over ideological ones on the ground that excellence comes only after existence. It is only if men exist that there can be Fundamental Rights. To further widen the scope of the Directive Principles, the Constitution (42nd Amendment) Act, 1976, amended Article 31C for providing supremacy for all the Directive Principles. The effect of amendment was to give overriding effect to Directive Principles and to make them immune from being declared as violative of the rights guaranteed by Articles 14, 19 or 31. However, the change incorporated by 42nd Amendment was struck down by the Supreme Court in the Minerva Mills Limited v/s Union of India Case, 1980. The Court thus restored Article 31C to its original status as inserted by the 25th Amendment Act, 1971. It thus follows that the Directive Principles contained in Articles 39(b) and 39(c) shall have supremacy over the Fundamental Rights contained in Articles 14 and 19 Importance of Directive Principles The Directive Principles are not enforceable in a court of law, but they are as important as any part of the Constitution including the Fundamental Rights. Article 37 states that-The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws The Directive Principles were earlier described as mere window dressing or post dated cheque, which are not encashable but the Directive Principles contain a guideline for the centre, Professor Gledhill held the opinion that it would be superficial to dismiss the Directive Principles as mere good resolution. These are the life giving provisions of the Constitution. They constitute the stuff of the Constitution and its philosophy of social justice. The success and failure of the government is judged on the implementation of the Directive Principles. Doubts were expressed in the Constituent Assembly itself that the Directive Principles were not more than mere pious hopes and they were likely to remain as high sounding platitudes. Professor KC Wheare remarked that the Directive Principles were in the nature of a mere homily or a manifesto of aims and aspirations. Sir Ivor Jennings observed that Part IV of the Constitution was a product of time and circumstances and that the ideas expressed in this part might survive for a generation, i.e., they had merely a transitory importance. A three Judge Bench of the Supreme Court in Air India Statutory Corporation v/s United Labour Union Case, 1997 observed that these Directives are fore-runners of the UNO

Convention of Right to Development. These principles are embedded as integral part of our Constitution and that these now stand elevated to inalienable fundamental human rights The Directive Principles contain the social, economic, cultural and educational, objectives of the State. These provide a motivation for a peaceful political revolution. These also provide a programme for social reconstruction and economic upliftment of the people of India. The Directive Principles inscribe the ideas and aspirations of the people of India for which they had fought against the foreign rule. In the words of Dr KV Rao, "The Directive Principles are the brain centre of the Constitution, which gives the directions for working the mechanism contained in other parts of the Constitution." Amendments made in the Directive principles

1. The Constitution (Forty-Second Amendment) Act, 1976 added the following Directive Principles to the existing list

(a) Article 39F-To secure opportunities for healthy development of children, (b) Article 39A-To equal justice and free legal aid to the poor. (c) Article 43A-To take steps to secure the participation of workers in the management

of industries. (d) Article 48A-To protect and improve the environment and to safeguard forests and wildlife. 2. The Constitution (44th Amendment) Act, Ii inserted clause (2) in Article 38, which requires State to strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals, but also amongst groups of people residing in different areas or engaged in different vocations. The Constitution (86th Amendment) Act, 21 amended the subject matter of Article 45. The amended Article 45 provides for early childhood c and education for all children from 0-6 years of age. Directives Contained in Other Parts Besides the directives contained in Part IV, there certain other directives addressed to the state in to parts of the Constitution. Those directives are also non-justiciable. These are Article 350A enjoins every state and every local authority within the state to provide adequate facilities for instruction in the mother tongue children belonging to linguistic minority groups. Article 351 enjoins the union to promote the spread the Hindi language and to develop it, so that it may serve as a medium of expression of all the element: the composite culture of India. Article 335 enjoins that the claims of the member: the Scheduled Castes and Scheduled Tribes shall taken into consideration, consistently with 1 maintenance of efficiency of administration, in making of appointments to services and posts connection with the affairs of the union or a state. Though the Directives contained in Article 335, 305A and351 are not included in Part IV, courts have given similar attention to them on the application of the principle that all parts of the Constitution should be read together.

FUNDAMENTAL DUTIES The Fundamental Duties in India are provided by the Constitution of India in Part IVA under Article 51A. The Fundamental Duties of citizens were added to the Constitution by the 42nd Amendment in 1976, upon the recommendations of the Swaran Singh Committee that was constituted by the government. Initially ten in number, the Fundamental Duties were increased to eleven by the 86th Amendment in 2002, which added a duty on every parent or guardian to ensure that their child or ward was provided opportunities for education between the ages of 6-14 years. These duties are recognized as the moral obligation that helps in upholding the spirit of nationalism as well as supports the harmony of nation. However, unlike Fundamental Rights, these are not legally enforceable in courts. Part IV A (Article 51A) of the Constitution 1. To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem. 2. To cherish and follow the noble ideals, which inspired our national struggle for freedom. 3. To uphold and protect the sovereignty, unity and integrity of India 4. To defend the country and render national service when called upon to do so. 5. To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women. 6. To value and preserve the rich heritage of our composite culture. 7.To protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. 8. To develop the scientific temper, humanism and the spirit of inquiry and reform. 9. To safeguard public property and to abjure violence. 10. To strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement 11. Who is a parent or guardian to provide opportunities for education to his child or as the case may be, ward between the ages of 6-14 years. Sources of Fundamental Duties The Fundamental Duties in Indian Constitution inspired by the Constitution of the erstwhile USSR. Japanese Constitution also contains a list of Fundamental Duties. The inclusion of Fundamental Duties in our Constitution also brings it in line Article 29(1) of the Universal Declaration Human Rights, which says 'Everyone has the (to the community, in which alone the free and development of the personality is possible.' Justice Verma Committee and Fundamental Duties Justice Verma Committee report on teaching Fundamental Duties to citizens was set up in 1999 and the report presented in 2000. It recommended reorienting approaches to school curriculum and teacher's education programmes and incorporating Fundamental Duties in higher professional education. National Commission to Review the Working of the Constitution (NCRWC) report in 2002 recommended to implement the Justice Verma Committee recommendations. In 2003, Supreme Court directed the Central Government to enact a Law for the enforcement of Fundamental Duties citizens as suggested by Justice Verma Committee Significance of Fundamental Duties Fundamental Duties of citizens genuine purpose of the Effective Governance . In particular, no democratic political succeed, where the citizens are not willing active participants in the process of governance by assuming responsibilities and discharging citizen duties and coming forward to give their best to the country. It serves as a reminder

to the citizen: they should not only enjoy their rights but al conscious of their duties towards their country. They also help courts in examining constitutional validity of a Law. Some of the Fundamental Duties enshrined in Article 51A have been incorporated in separate Laws. For instance, the first duty includes respect for the National Flag and the National Anthem. Disrespect is punishable by Law. To value and preserve the rich heritage of the mosaic i.e., India should help to weld our people into one nation, but much more than Article 51A is needed to treat all human beings equally, to respect each religion and to confine it to the private sphere and not make it a bone of contention between different communities of this land. Relationship between the Fundamental Rights, Directive Principles and Fundamental Duties The Directive Principles have been used to uphold the constitutional validity of legislations in case of a conflict with the Fundamental Rights. Article 31C, added by the 25th Amendment in 1971 provided that any Law made to give effect to the Directive Principles in Article 39(b)-(c) would not be invalid on the grounds that they derogated from the Fundamental Rights conferred by Articles 14, 19 and 31. The application of this Article was sought to be extended to all the Directive Principles by the 42nd Amendment in 1976, but the Supreme Court struck down the extension as void on the ground that it violated the basic structure of the Constitution. The Fundamental Rights and Directive Principles have also been used together in forming the basis of legislation for social welfare. The Supreme Court, after the judgement in the Kesavananda Bharati Case, has adopted the view of the Fundamental Rights and Directive Principles being complementary to each other, each supplementing the other's role in aiming at the same goal of establishing a welfare State by means of social revolution. Likewise, the Supreme Court has used the Fundamental Duties to uphold the constitutional validity of statutes, which seeks to promote the objects laid out in the Fundamental Duties. These Duties have also been held to be obligatory for all citizens, subject to the State enforcing the same by means of a valid law. The Supreme Court has also issued directions to the State in this regard, with a view towards making the provisions effective and enabling a citizens to properly perform their duties. In 2002, through 86th Amendment Act 2002, a new clause (k) was added as the eleventh duty. Criticism of Fundamental Duties Fundamental Duties as contained in Part IVA are criticized on the ground that they are not exhaustive as they do the ground that they are not exhaustive as they do not contain various important duties like casting vote, paying taxes etc. also, some of the duties are difficult to understand as they are vague and ambiguous. As these duties are not justiciable, they have been criticized as just being moral instructions.

UNION GOVERNMENT

The Union Executive consists of the President, Vice-President, Prime Minister with his Council of Ministers and the Attorney Genera Articles 52 to 78 deal with the Union Executive. Union Executive The President is the head of the state, while the Prime Minister is the head of the government. The President is a nominal head and has very little actual powers. He is however a symbol of unity, integrity and solidarity of the nation. The President Article 52 of the Constitution provides that there shall be a President of India. Article 53(1) says that the Executive Power of the union shall be vested in the President and shall be exercised by him either directly or through officers subordinates to him in accordance with this Constitution. Article 53(2) states that without prejudice to the generality of the foregoing provision, the supreme command of the defence forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law. Election of the president The President is elected indirectly by an Electoral College through the System of Proportional Representation with Single Transferable Vote. Articles 54, 55 and 71 of the Constitution deal with the election of the President. Electoral College Article 54 reads that the President shall be elected by the Members of an Electoral College consisting of “The elected members of both the Houses of Parliament. The elected members of the Legislative Assemblies of the States. The elected members of the Legislative Assemblies of the Union Territories of Delhi and Puducherry.” List of Important Articles Article Subject-Matter 52 The President of India 53 Executive power of the Union 54 Election of President 55 Manner of election of President 56 Term of Office of President 57 Eligibility for re-election 58 Qualification for election as President 59 Conditions of President’s Office 60 Oath or affirmation by the president 61 Procedure for impeachment of the President 62 Time of holding election to fill the vacancy in the Office of

President 63 Vice-President 64 Vice-President as ex-officio Chairman of the council of

states 65 Vice-President to act as the President 66 Election of Vice-President 67 Term of office of Vice-President 68 Time of holding elections to fill the vacancy in the office of

Vice-President 69 Oath or affirmation by the Vice-President 70 Discharge of President’s functions in other contingencies 71 Matters related to election of the President 72 Powers of President to grant pardons etc 73 Extent of executive power of the union 74 Council of ministers to aid and advise the president

75 Other provisions as to Ministers like appointment, term, salaries etc

76 Attorney-General of India 77 Conduct of the business of the Government of India 78 Duties of Prime Minister in respect to furnishing of

information to the President etc.

Article 55 deals with the method of the President's election. The President is elected by

proportional representation with Single Transferable Vote System. Proportional

representation means that in order to get elected, the candidate must get a fixed quota

of votes when only one person is to be elected. The number of votes needed to win is

one more than 50% of valid Votes. Under the Single Transferable Vote System, an

elector can indicate more than one preference on his ballot paper.

Qualifications for president

For the highest Executive Post of India, our Constitution lays down relatively simple

qualifications. Article 58 provides a list of these qualifications. As per Article 58(1) no

person shall be eligible for election as President, unless he

1. Is a Citizen of India?

2. Has completed the age of thirty-five years and

3. is qualified for election as a member of the House of the People.

As per Article 58(2) a person shall not be eligible for election as President if he holds any

office of profit under the Government of India or the Government of any State or under

any local or other authority subject to the control of any of the said Governments.

In regards the qualifications, the Constitution makers have left certain gaps. For

instance, no rationale is given for fixing the age at 35 years and it is not specified

whether he should be a natural born citizen or naturalized one. He can make as many

preferences as the number of candidates participating in the election. At least one

preference must be made for the validity of votes.

Election Method of the President

The nomination of a candidate for the post of President has to be proposed by 50

members and seconded by another 50 members of the Electoral College. The number of

votes which each elected member of the Legislative Assembly of each State and the

Parliament is entitled to cast at such election shall be determined in the following

manner.

Every elected member of the Legislative Assembly of a State shall have as many votes as

there are multiples of one thousand in the quotient obtained by dividing the population

of the State by the total number of the elected members of the assembly.

Value of the vote of an MLA

Total population of State (1971 Census) / Total number of elected members in the

States Legislative Assembly × 1000

Every elected member of either House of Parliament shall have such number of votes as

may be obtained by dividing the total number of votes assigned to members of the

Legislative Assemblies of the States by the total number of the elected members of both

the Houses of Parliament.

This can be expressed as

Value of the vote of an MP is equal to;

Total value of votes of all MLAs of all States, divided by Total number of elected

Member of Parliament.

Then, the quota of votes a candidate needs to win the election is determined in the

following manner

Electoral Quota

11

dectedendidatetobnumberofco

ledidvotespolumberofvallnTota

Proportional Representation

Elections are to be held on the principle of proportional representation with a single

transferable vote and secret ballot. Pundit Nehru had moved and also got passed the

11th Amendment Act, according to which the elections of the President and the Vice-

president could not be challenged on the ground that the Electoral College was

incomplete.

Conditions of President’s Office

The Constitution lays down the following conditions of the president’s office

Article 59 (1) says that the President shall not be a Member of either House of

Parliament or of a House of the Legislature of any State and if a Member of either House

of Parliament or of a House of the Legislature of any State be elected President, he shall

be deemed to have vacated his seat in that House on the date on which he enters upon

his office as President.

Article 59 (2) prohibits the President from holding any other office of profit.

Article 59 (3) says that the President shall be entitled without payment of rent to the use

of his official residences and shall be also entitled to such emoluments, allowances and

privileges as may be determined by Parliament by Law and, until provision in that behalf

is so made, such emoluments, allowances and privileges as are specified in the Second

Schedule.

Article 59(4) says that the emoluments and allowances of the President shall not be

diminished during his term of office.

Oath by the president (Article 60)

The oath of office to the President is administered by the Chief Justice of India and in his

absence, the senior most judge of the Supreme Court available. In his oath, the President

swears To faithfully execute the office.

1. To preserve, protect and defend the Constitution and the Law and.

2. To devote himself to the service and wellbeing of the people of India.

Term of Office of President

Article 56 (1) provides for a five year term for the President from the date on which he

enters upon his office. The Election of next President is held before the expiry of the

term of the incumbent. However, if election is not held within five years, the incumbent

President continues to hold the office till the election is held. In this case, the Vice-

President does not get the opportunity to act as the President.

A President can be again elected as President (Article 57). There is no limitation as to

how many times a person can become President. He can, however, resign from his office

at any time by addressing the resignation letter to the Vice-President, which should be

communicated by him to the Speaker of the House of People. Further, he can also be

removed from the office before completion of his term by the process of Impeachment.

Salary and Emoluments

The salary and other perks are decided through the President's (Emoluments) and

Pension Act, 1951. This Act has been amended from time to time to review the salary.

The first clause of this Act says that the President will get emoluments on' 1.50 lakh per

month.

Impeachment of the President

Articles 56 (1) (b) and Article 61 provide for the Impeachment of the President. Keeping in mind

the dignity of the Office, deliberate provisions were inserted to make the removal difficult.

The President can be impeached on the grounds of violation of the Constitution and has to be

informed in writing 14 days in advance about the intention to initiate Impeachment

proceedings.

The Impeachment motion can be brought about in the form of resolution in either House of

the Parliament where, it has to be signed by one-fourth of the Members of the House.

After the Impeachment motion is passed by a majority of two-thirds of the total membership of

that house, it is sent to the other House, which should investigate the charges. The President

can present his case or defend himself during the investigation of Impeachment Charges. If the

charges are proved and the motion is passed by a two-third majority in the second chamber

also, the President is considered removed from that time and day. An Impeachment is a quasi-

judicial procedure in the Parliament. The nominated members of either House of Parliament

can participate in the Impeachment of the President though they do not participate in his

election. No President has been impeached so far.

Vacancy in the Office of the President

If the office of the President becomes vacant due to death, resignation or impeachment

before the expiry of the term, the election to the office of President is held within Six

months of the occurrence of the vacancy [Article 62(1)]. In this case, the Vice-President

will act as President till the newly elected President assumes office. The newly elected

President holds office for a five year term. If the office of President is temporarily vacant

due to illness or otherwise, or absence of the President, the Vice-President discharges

the duties and functions of President till the incumbent President resumes office (Article

65). In case, both President and Vice-President are not available to perform the duties of

President, the Chief Justice of Supreme Court discharges the duties of President and in

his absence the next Senior Justice of Supreme Court performs the functions of

President.

This situation arose only once so far in 1969, when the incumbent President Dr. Zakir Hussain

died in May 1969 and the Vice-President resigned on 20th July, 1969 to contest the election of

President. In this contingency, Justice M Hidayatullah, Chief Justice of Supreme Court

discharged the duties of President from 20th July, 1969.

In fact, M Hidayatullah is the only person to perform the functions of President two times into

different capacities, e.g., first time in 1969 as the Chief Justice of Supreme Court and second

time as the Vice-President of India in October, 1982.

When any person, i.e., Vice-President, Chief Justice of India, or the senior most Judge of the

Supreme Court is acting as the President or discharging the functions of the President, he

enjoys all the powers and immunities of the President and is entitled to such emoluments,

allowances and privileges as are determined by the Parliament.

Presidents of India

Name Tenure Important Facts

Fromm To

Dr Rajendra Prasad 26.01.1950 13.05.1962 First President and also had

the longest tenure (12 years)

Dr S Radhakrishnan 13.05.1962 13.05.1967 Was also first Vice-President

of India

Dr Zakir Hussian 13.051967 03.05.1969 Shortest tenure First Muslim

President; First President to

die in harness

W Giri (Vice-President) 03.05.1969 20.07.1969 First acting President of India

Justice M Hidayatullah 20.07.1969 24.08.1969 Was also the Chief Justice of

India

W Giri 24.08.1969 24.08.1974 -

F Ali Ahmed 24.08.1974 11.02.1977 Died in office

BD Jatti 11.021977 25.02.1977 Acting President

N Sanjeeva Reddy 25.07.1977 25.07.1982 Youngest President (64) years)

Giani Zail Singh

R Venkataraman

25.07.1982

25.07.1987

25.07.1987

25.07.1992

First Sikh President

Oldest President (76 years)

Dr SD Sharma 25.07.1992 25.07.1997 -

KR Narayanan 25.07.1997 20.07.2002 First Dalit President

DR APJ Abdul Kalam 25.07.2002 25.07.2007 First scientist to become

President

Mrs Pratibha Patil 25.07.2007 25.07.2012 First woman to become

President

Pranab Mukherjee 25.07.2012 Till Date -

Powers of the Indian President:-

The Post of the President is vested with substantial powers in various fields. But he has

to function according to the advice of the Prime Minister and his Council of Ministers.

Therefore, his role is that of a Ceremonial Head in whose name the decisions of the

Government are carried out.

The President of India enjoys the following powers :-

Administrative Powers:--Article 77 requires that every Executive action of the

Union shall be taken in the name of the President.

Appointment of Prime Minister and Other Ministers :-

The President invites the leader of the Majority Party in the Lok Sabha to act as the

Prime Minister and on his advice, appoints all the other Union Ministers and

distributes portfolios among them. The advice of Council of Ministers is made binding

upon the President by the 42nd Constitutional Amendment, 1976 by amending Article

74 of the Constitution. The President is further empowered to make rules for the more

convenient transaction of the business of the Government of India and for the

allocation of the said business among the Ministers.

Other Appointment by the President :-

He appoints the Attorney General of India and determines his remuneration. The

Attorney General holds office during the pleasure of the President. He appoints the

Comptroller and Auditor General of India, the Chief Election Commissioner and other

Election Commissioners, the Chairman and members of the Union Public Service

Commission, the Governors of States, the Chairman and Members of Finance

Commission, Planning Commission and the Language Commission. He is also

empowered to set up an Inter-State Council charged with the duty of investigating into

and advising on disputes between States. He also bestows titles. The President also

appoints the Heads of the Army, Navy and Air Force. He can appoint a Commission to

investigate into the conditions of SCs, STs and other Backward Classes and can declare

any area as Scheduled Area and has powers with respect to the administration of

Scheduled Areas and Tribal Areas. He directly administers the Union Territories

through administrators appointed by him.

To Obtain Information from Prime Minister:-

The President has a Right to Obtain Information from the Prime Minister. Article 78 of

the Constitution states that it is the duty of the Prime Minister to communicate to the

President all decisions of the Council of Ministers relating to the administration of the

affairs of the Union and proposals for legislation and furnish information to the

President as called for by the latter.

Financial Powers

Money bills can be introduced in Parliament only with the prior recommendation of

the President. He causes to be laid before the Parliament the Annual Financial

Statement (Union Budget). No demand for a grant can be made except on his

recommendation. He constitutes a Finance Commission every five years to recommend

the distribution of revenues between the centre and the states. He can make advances

out of the Contingency Fund of India to meet any unforeseen expenditure.

Legislative powers

The President is a part of the Union Parliament. He nominates 12 persons, eminent in

literature, art, science or social service to the Rajya Sabha. He can also nominate two

persons belonging to Anglo-Indian Community to the Lok Sabha, if in his opinion, that

community is inadequately represented in the House.

Powers Related to Parliament:-

The President summons the sessions of the Parliament. He ensures that a period of more than

six months should not elapse between two sessions. In case of an Emergency, he can extend

the life of the Lok Sabha by one year. He is authorized to convene a Joint Session of both the

Houses in case of disagreement between the Houses on the passage of a Bill. Besides, if both

the Houses disagree on a Bill, and the President feels that the Bill is not needed to be passed,

he can refuse to call a joint session, thereby, killing the Bill, Joint sessions cannot, however, be

convened for Money Bills A Bill passed by the Parliament can become a Law only after the

President gives his assent to it. He can return a Bill other than a Money Bill or a Constitutional

Amendment Bill for the reconsideration of the Parliament once. When a Bill passed by a State

Legislature is reserved by the Governor for consideration of the President, the President can

give his assent to the Bill, or withhold his assent to the Bill, or direct the Governor to return the

Bill (if it is not a Money Bill) for reconsider- action of the State Legislature.

Powers Regarding Bill

A Bill passed by the Parliament can become an act only if it receives the assent of the

President. When such a bill is presented to the President for his assent, he has three

alternatives (under Article 111 of the Constitution).

1. He may give his assent to the Bill, or

2. He may with hold his assent to the Bill or

3. He may return the Bill (if it is not a Money Bill) for reconsideration of the

Parliament. However, if the Bill is passed aging by the Parliament with or without

amendments and again presented to the President must give his assent to the Bill.

The President of India is vested with three types of vetoes-Absolute Veto, Suspensive

veto and Pocket Veto.

There is no Qualified Veto in the case of Indian President; it is possessed by the American

President. Every year, the President causes to be laid before Houses of Parliament, the Annual

Financial Statement (the Annual Budget), the report of the Comptroller and Auditor General of

India, the recommendations of the Finance Commission and reports of the Union Public Service

Commission. Under Article 86 he can also send messages to either one or both the Houses,

whether with respect to a Bill pending in the Parliament or otherwise. He can appoint any

Member of the Lok Sabha to preside over its proceedings when the offices of both the Speaker

and the Deputy Speaker fall vacant. Similarly, he can also appoint any Member of the Rajya

Sabha to preside over its proceedings when the offices of both the Chairman and the Deputy

Chairman fall vacant.

Veto Powers of the President

The Veto Power enjoyed by the executive in modern states can be classified into the following

four types Absolute Veto. It is the power to say no to a Bill passed by both Houses of

Parliament Such a Bill never becomes an Act. The power can not be overridden by the

Legislature. The Indian President has this power in relation to Bills except Money Bills.

Suspensive Veto the President exercises this Veto when he returns a Bill for reconsideration of

the Parliament. However, if the Bill is passed again by the Parliament with or without

amendments and again presented to the President, it is obligatory for the President to give his

assent to the Bill.

Pocket Veto In this case, the President neither assents nor rejects nor returns the Bill, but

simply keeps the Bill pending for an indefinite period. This power of the President not to take

any action (either positive or negative) on the Bill is known as the Pocket Veto. Since the

Constitution of India does not specify a time limit for the President to assent to a Bill, the Indian

President can exercise Pocket Veto.

Qualified Veto It is the Power of Veto, which can be overridden by the Legislature by a higher

majority. The American President may return a Bill within 10 days specifying his objections to

the Bill. If both the Houses pass the Bill again with 2/3rd majority (Present and Voting) the Veto

is overridden. If the requisite majority can not be mustered the Veto stands. In India, there is no

Qualified Veto.

Power to Make Ordinances

Article 123 (1) gives ordinance making power to the President. The President may promulgate ordinances on all those matters with respect to which Parliament is competent to make Laws. The ordinance has the same effect as Law passed by Parliament. An ordinance can be promulgated only when the Houses of the Parliament are not in session. The President may withdraw the ordinance at any time. The ordinance is required to be laid before both Houses of the Parliament. It ceases to operate at the expiry of six weeks from the reassembly of the Parliament Ordinances issued by the President can modify or repeal an act of Parliament or another ordinance. It cannot be used however, to amend the Constitution or to abridge or take away any Fundamental Right. Under the rules of Lok Sabha, when a Bill seeking to replace an ordinance is placed in the House, a statement explaining the reasons for promulgation of the ordinance should also be presented. The Supreme Court has ruled that repeated promulgation of an ordinance with the same text, without attempting to get the relevant Bill passed would amount to a violation of the Constitution and the ordinance is liable to be struck down. Judicial Powers The President appoints the Chief Justice and the Judges of Supreme Court and High Courts. He dismisses the Judges if and only if the two Houses of the Parliament pass resolutions to that effect by two-thirds majority of the members present in accordance with the provisions provided in the Constitution. He can also seek advice from the Supreme Court on any question of Law or Fact (Article 143). However, the advice tendered by the Supreme Court is not binding on the President.

Terminology

Pardon Completely absolves the guilt of the offender. When a convict is granted pardon, he is

completely absolved from the punishment imposed on him as also from all penal consequences

and such disqualification.

Reprieve Temporay suspension of the senfence.

Respite Awarding a lesser sentence on special ground for example, pregnancy of a women

offender.

Remission Remission means reduction of the amount of sentence without changing its

character, i.g., 7 years of rigorous imprisonment is reduced to 3 years of rigorous

imprisonment.

Commutation Substitution of one form of punishment for another form which is of a lighter

character, or example, rigorous imprisonment is commuted to simple imprisonment.

Pardoning Power

Article 72 confers on the Pre power to grant pardons, Rep. Respites or Remissions of

Punishment, or to Commute the Sentence of any person convicted of an offence President is

empowered to pardons in case, where the punishment or sentence is for an offence un union

law; punishment or sentence is by a court martial; sentence of death.

The pardoning power of the President is independent of the judiciary and is an executive

power. The Pres while using this power does not sit as a court of appeal.

The object of granting such a power the President is to keep the door for correcting any judicial

error and to provide relief from a sentence VI the President considers as un harsh. The Supreme

Court examined the pardoning power OJ President and laid down the {alto! principles" The

petitioner has no right for an hearing by President.

The petitioner has no right for an oral hearing by President.

The president can examine the evidence afresh taking a view different from the

Courts.

President exercises this power on advice from the Union cabinet.

President is not bound to give reasons for his order.

The pardoning power of President is not subject to judicial review except where the

decision is arbitranj irrational, mala fide or discriminating. If one petition of mercy is

rejected, stay cannot obtained by filing another petition.

Emergency Powers

With the aim of protecting the peace, security and unity of the country, the President

can declare three types of emergencies. National Emergency (Article 352) President's

Rule (Article 356) and Financial Emergency (Article 360)

National Emergency

Article 352 confers power on the President to make a proclamation of Emergency on

the grounds of war, external aggression, or armed rebellion. Its duration in the first

instance is two months. Within one month, it has to be ratified by the Parliament. If the

Lok Sabha is not in session then it has to be ratified by the Rajya Sabha else it stands

void. After it is notin session then the emergency continues as long as President desires.

The period, however, cannot exceed six months at a time.

President’s Rule

Article 356 confers power on the President to make a proclamation of State Emergency

by declaring that the Government in a State cannot be run in accordance of the

provisions of the Constitution. The proclamation has to be approved by both the

Houses by a simple majority. The proclamation is initially applicable for two months

after ratification by the Parliament it becomes applicable for six months if not revoked

earlier. It can be extended for six months at a time for a period not exceeding three

years.

Financial Emergency

Under Article 360, the President is vested with the power to proclaim financial

emergency, if he is satisfied that the financial stability or, the credit of India or any part

of India is threatened, by any reason. Such an Emergency must be approved by the

Parliament within two months. It has never been declared. On a previous occasion, the

financial stability or credit of India has indeed been threatened, but a financial

emergency was avoided through the selling of India's gold reserves (in 1991).

Military Powers

Article 53 (2) lays down that "the Supreme Command of the Defense Forces of the

Union shall be vested in the President and the exercise thereof, shall be regulated by

Law." The President is thus declared to be the Supreme Commander of the defence

forces of the country. In the exercise of this power, it is the President, who can declare

war against a country and make peace.

Diplomatic Powers

The President appoints Ambassadors and diplomatic representatives of India to foreign

countries and missions and receives credentials of foreign diplomats. All treaties and

agreements with foreign states are entered into, in the name of the President. He also

has the right to negotiate treaties and conventions with other countries without the

intervention of the Union Parliament, except in cases where the execution of a treaty

requires legislation of any kind.

Constitutional Position of the President

All the powers expressly vested in the President have to be interpreted in the light of

the Parliamentary System of Government, adopted under the Constitution. The

essential characteristic of such a system is to have a Nominal Head of the State. Article

53 says that the Executive Power of the Union shall be vested in President and shall be

exercised by him either directly or through officers subordinate to him in accordance

with this Constitution. It thus, provides for delegation of the Executive Power by the

President to others. Article 74 provides for a Council of Ministers with the Prime

Minister at the Head to aid and advise the President who shall, in the exercise of his

functions, act in accordance with such advice and the Council of Ministers shall be

collectively responsible to the Lok Sabha Article 75 Mter the Constitution (44th

Amendment) Act, 1978, except in certain marginal cases referred to by the Supreme

Court, the President shall have no power to act in his discretion in any case. The

President has the power to send back the advice received from the Council of Ministers,

in a particular case, back to them for their reconsideration once and if the Council of

Ministers adheres to its previous advice, the President shall have no option but to act in

accordance with such advice. The power to return the advice for reconsideration can be

exercised only once on the same matter.

Vice-President

Article 63 of the Constitution provides for the Vice-President of India. The Vice-

President is the second most important Constitutional functionary of the Union. His

office is a contingency office to take care of the President's office if there is a vacancy in

the office of the President. This office is modelled on the lines of the American Vice--

President.

Election of Vice-President

According to Article 66(1), the Vice- President shall be elected by the members of an

Electoral College consisting of the Members of both Houses of Parliament in accordance

with the system of proportional representation by means of the Single Transferable Vote

and the voting at such election shall be held by secret ballot.

According to Article 66(2), the Vice- President shall not be a member of either House of

Parliament or of a House of the Legislature of any State, and if a Member of either

House of Parliament or of a House of the Legislature of any State be elected Vice-

President, he shall be deemed to have vacated his seat in that House on the date on

which he enters upon his office as Vice-President.

Both the nominated and elected members participate in the elections. The Members of

the State Legislative Assemblies do not participate in the elections. All disputes and

doubts arising out of or in connection with the election of the Vice-President shall be

inquired into and decided by the Supreme Court whose decision is final.

Qualification

Qualifications for the post of Vice-President are laid down in Article 66(3) according to

which no person shall be eligible for election as Vice-President unless

1. He is a citizen of India.

2. He has completed the age of 35 years and

3. He is qualified for election as a member of the Council of States.

Article 66(4) holds that a person shall not be eligible for election as Vice-President if he

holds any office of profit under the Government of India or the Government of any State

or under any local or other authority subject to the control of any of the said

Governments. Further, the nomination of a candidate for election to the office of Vice-

President must be subscribed by at least 20 electors as proposers and 20 electors as

seconders. Every candidate has to make a security deposit of ~ 15000 in the Reserve

Bank of India. For the purposes of this article, a person shall not be deemed to hold any

office of profit by reason only that he is the President or Vice-President of the Union or

the Governor of any State or is a Minister either for the Union or for any State.

Tenure of Vice-President

Article 67 provides that the Vice-President shall hold office for a term of five years from

the date on which he enters upon his office. He may, by writing under his hand

addressed to the President, resign from his office. He may also be removed from his

office by a resolution of the Council of States passed by a majority of all the then

Members of the Council (called as absolute majority) and agreed to by the House of the

People, but no resolution for the purpose of this clause shall be moved unless at least 14

day's notice has been given of the intention to move the resolution. A Vice-President

shall, despite the expiration of his term, continue to hold office until his successor enters

upon his office.

Vice-President is ex-officio Chairman of Rajya Sabha.

Seats in the Rajya Sabha are allocated as per population of that Sate.

The Vice-President can be removed by a resolution of the Rajya Sabha passed by

an absolute majority.

Appointment of all ministers is made by President on the recommendation of

Prime Minister.

Comparison of Indian and American Vice-President

The American Vice-president assumes the office of President if it fails vacant and

remains the President for the unexpired term while the Indian President merely

severs as acting President is elected.

As regards the Vic-President, even though the post is one of great authority and

prestige, the Vice-president, at best, remains his Superfluous Highness

remembered only is case of vacancy in the President’s office.

Oath by Vice-President

The oath of office to the Vice-President is administered by the President some person

appointed in that be by him. In his oath, the Vice-President swears to bear true faith and

allegiance to the Constitution of India and faithfully discharge the duties of office.

Emoluments

The Vice-President derives his s as the Ex-officio Chairman of Rajya Sabha, which is

current Rs. 1.25 lakh per month. During period he acts as the President, receives the

salary and allowances that of President.

Vice-Presidents of India

Vice-President Tenure

Dr Sarvapalli Radhakrishnan 1952-1962

Dr Zakir Hussain 1962-1967

Varahagiri Venkatagiri 1967-1969

Gopal Swarup Pathak 1969-1974

DB Jatti 1974-1979

Justice Mohammad Hidayatullah 1979-1984

R Venkataraman 1984-1987

Dr Shanker Dayal Sharma 1987-1992

NR Narayanan 1992-1997

Krishan Kant (Died) 1997-2002

Bhairon Singh Shekhawat 2002-2007

Mohammed Hamid Ansari 2007 till date

Vacancy in Office

A vacancy in the Vice-President's office may arise due to expiry of term, resignation,

removal, death or otherwise. If vacancy is due to the expiry of the term then elections

should be held before the term of the incumbent Vice-President expires, but if the

vacancy is due to death, resignation, removal then elections to fill the vacancy should

be held at the earliest.

Functions of the Vice-President

Article 64 states that the Vice-President shall be the Ex-officio Chairman of the Council

of States. His Chief function is to preside over the proceedings of the House. Under

Article 65(1), in case of vacancy in the office of President, the Vice-President acts as the

President till a new President is elected. However, during this period, he does not

perform the duties of the office of the Chairman of the Rajya Sabha (Article 64) and

then the Deputy Chairman of the Rajya Sabha acts as its Chairman.

Prime Minister

The most distinctive feature of the Indian Constitution is the Parliamentary form of

Government where the Indian Prime Minister has often been designated as primus

inter pares (first among equals), the pivot of the whole system of Government and

interstellar lunar minares (Moon among the Stars). The Prime Minister is assisted in this

task by his Council of Ministers, comprising Cabinet Ministers, Ministers of State with

Independent Charge, Ministers of State who work with Cabinet Ministers and Deputy

Ministers.

Appointment of the Prime Minister

The President of India appoints the leader of the party or alliance that enjoys majority

support in the Lok Sabha (Lower House of Indian Parliament) as Prime Minister. In case

no Single Party or Alliance has a majority, the leader of the largest Single Party or

alliance is usually appointed by the President as the Prime Minister. The President may

also ask him to subsequently secure a vote of confidence in the Lok Sabha within a

month.

The President however has great discretion in such a situation. This discretion was

exercised by the President, for the first time in 1979, when Neelam Sanjiva Reddy (the

then President) appointed Charan Singh (the coalition leader) as the Prime Minister

after the fall of the Janata Party Government headed by Morarji Desai.

The Union Council of Ministers is appointed by the President on the advice of the Prime

Minister. In 1997, the Supreme Court held that a person who is not a member of either

House of Parliament can be appointed as Prime Minister.

Oath, Term and Salary

The Prime Minister swears to bear faith and allegiance to the Constitution of India, also

to uphold the Sovereignty and Integrity of India. He also swears to faithfully discharge

the duties of his office and do right to all people without fear, favour, affection or ill

will.

The Prime Minister holds office till the pleasure of the President but the President

cannot dismiss him as long as he enjoys the majority in the Lok Sabha. But if he loses

the confidence of the Lok Sabha he must resign or the President dismisses him. The

salary and allowances of the Prime Minister are determined by the Parliament from

time to time. He gets the salary and allowances payable to a Member of Parliament.

Prime Ministers of India

Name Tenure Note

From To

Jawaharlal Nehru 15-08-1947 27-05-1964 First Prime Minister of

India, died in office; also

had he longest tenure (17

years)

Gulzari Lal Nanda 27-05-1964 09-06-1964 First acting Prime Minister

Lal Bahadur Shastri 09-06-0964 11-01-1966 Only Prime Minister to die

abroad during an official

your

Gulzari Lal Nanda 11-01-1966 24-01-1966 First to become Acting

Prime Minister twice

Indira Gandhi 24-01-1966 24-03-1977 First woman Prime

Minister of India; First

Prime Miniter to lose an

election

Morarji Desai 24-03-1977 28-07-1779 Oldest Prime Minister (81

years) and the first to

resign from office

Charan Singh 28-07-1979 14-01-1980 Only prime minister who

did not face the Parliament

Indira Gandhi 14-01-1980 31-10-1984 First prime Minister to be

assassinated

Rajiv Gandhi 31-010-

1984

01-12-1989 Youngest Prime Minister

(40 years)

VP Singh

Chandra Shekhar

21-12-1989

10-01-1990

10-11-1990 First Prime Minster to step

down after vote of no-

confidence

-

21-06-1991

PV Narasimha Rao 21-06-1991 16-05-1996 First Prime Minister from

Southrn India

Atal Bihari Vajpayee 16-05-1996 01-06-1996 Shortest tenure of a

Prmime Minister

HD Deve Gowada 01-06-1996 21-04-1997 -

IK Gujral 21-04-1997 19-03-1998 -

Atal Bihari Vajpayee 19-03-1998 13-10-1999 -

Atal Bihari Vajpayee 13-10-1999 22-05-2004 -

Dr Manmohan Singh 22-05-2004 Till Date First Sikh Prime Minister

Powers and Functions of the Prime Minister

According to the British Political Scientist, Harold J Laski, the Prime Minister in a

Parliamentary form of Government is central to the formation of Council of Ministers,

central to its life and central to its death.

Powers in Reference to Council of Ministers

As per Article 75, the Prime Minister is empowered to advise the President about the

appointment of other Ministers to constitute the Council of Ministers. The political life

and death of Ministers also depends upon the Prime Minister. He may change their

portfolios or may even advise the President to dismiss them. The Prime Minister stands

at the Head of the Council of Ministers, the other Ministers cannot function when the

Prime Minister resigns or dies. He summons meetings of the Council of Ministers and

presides over them. He defends colleagues both in Parliament and public. He also

initiates and defends the official policies.

In Reference to Parliament

The Prime Minister is the leader of the ruling party. He advices the President in fixing the

dates of summoning and proroguing the Lok Sabha. He is the main Spokesman of the

Government, he explains the Government policies before the Parliament. He has to take

the initiative in getting the important Bills passed. He has to maintain constant touch and

good relations with the opposition party to ensure the smooth conduct of the business of

the House.

Channel Between president and Cabinet

The Prime Minister is the main Channel of Communication between the President and the Council of Ministers (Article 78). He also influences to a great extent every appointment made by the President. The President appoints the Attorney General of India, Comptroller and Auditor General of India, Chairman and Members of the UPSC, Election Commissioners, Chairman and Members of the Finance Commission etc

on the advice of the Prime Minister. He is the Chairman of the Planning Commission,

National Development Council, National Integration Council, Inter-State Council and

National Water Resources Council and plays an important role in shaping our Foreign

Policy.

Position of Minister

The Prime Minister has a special position compared to the other Ministers. He acts not

only as a communications channel between the President and the Council of Ministers

but also as the Chief Spokesman of the Cabinet Policies before Parliament. As the leader

of the ruling party or alliance, he plays a very important role.

In theory, the President appoints removes the other Ministers, he does only on the

advice of the Prime Minister. any important matter, the Prime Minis can unilaterally take

the decisions with consulting his colleagues and the decision taken by him are, in

practice, final.

In the contemporary era of coalition polity in India it is very difficult on the part of Prime Minister to be a Dictator. Because the Prime Minister has to remember the as the leader of a Coalition Government should always try to satisfy the coalition partners. He cannot appoint the Ministers in t Council of Ministers at his will and has major say in the allotment of porfolios amongst the Ministers. He has to cons and take into consideration the views of coalition partners before taking a policy decision. The Prime Minister has to work take the coalition partners into confident in all important issues. In fact, the power and position of the Prime Minister largely. depend on his personality and efficiency. Deputy Prime Minister There is no mention of Deputy Prime Minister in the Constitution. Deputy Prime Minister is appointed mostly due to political reasons. Sardar Patel acted as first Deputy Prime Minister in Nehru's time, Advani acted as Deputy Prime Minister during Atal Bihari Vajpayee's time etc. List of Deputy Prime Ministers of India Deputy Prime Minister Tenure Sardar Vallabhbhyai 1947-1950 Morarji Desai 1967-1969 Charan Singh and Jagjivan Ram (jointly) 1979-1980 Yb Chavan 1979-1980 Devi Lal 1989-1991 LK Advani 2002-2004

Council of Ministers

The Indian Parliamentary form of Government is characterised by the presence of

Council of Ministers headed by the Prime Minister which acts as the real Executive

Authority.

Article 74 of the Constitution of the Republic of India provides for a Council of Ministers

which shall aid the President in the exercise of his functions. Article 75 provides for

other provisions such as appointment, salaries and allowances of Prime Minister and

other ministers.

Leader of the Nation

The Prime Minister leads the entire Nation. He addresses the people of the country on

important national and international issues, and problems., If there are problems in the

Political, Social or Economic spheres, he assures the people by communicating to them the

Government's policies and programmes for the solution of the problems.

Constitutional Provisions for Council of Ministers

As per Article 74

There shall be a Council of Ministers with the Prime Minister at the Head to aid and advise the

President who shall, in the exercise of his functions, act in accordance with such advice

Provided that the President may require the Council of Ministers to reconsider such advice,

either generally or otherwise, and the President shall act in accordance with the advice

tendered after such reconsideration.

The question whether any, and if so what, advice was tendered by Ministers to the President

shall not be inquired into in any court.

As per Article 75

The Prime Minister shall be appointed by the President and the other Ministers shall be

appointed by the President on the advice of the Prime Minister.

The Ministers shall hold office during the pleasure of the President.

The Council of Ministers shall be collectively responsible to the House of the People.

Before a Minister enters upon his office, the President shall administer to him the oaths of

office and of secrecy according to the forms set out for the purpose in the Third Schedule.

A Minister who for any period of six consecutive months is not a member of either House of

Parliament shall at the expiration of that period cease to be a Minister.

The salaries and allowances of Ministers shall be such as Parliament may from time to time by

Law determine and, until Parliament so determines, shall be as specified in the Second

Schedule.

Provisions for Advice of Ministers

As per Article 74 the President has the Council of Ministers headed by the Prime

Minister to aid and advice him on the exercise of his functions Article 74 in its original

form stated that there shall be a Council of Ministers headed by Prime Minister to aid

and advice the President. It did not state whether the President was bound by such

advice. However, the Supreme Court on the basis of conventions established in England

clarified that the President was virtually bound by the aid and advice of Council of

Ministers, so long as the Council of Ministers enjoys the confidence of the Lok Sabha.

The 42nd Amendment Act, 1976, amended Article 74, which introduced the condition

that the President shall Act according to such advice. The 44th Amendment Act, 1978,

further amended Article 74 and introduced a provision which states that President may

reer the advice of Council of Ministers for their reconsideration with or without

suggestions. The President shall be bound by the advice given by the Council of Minister

after such reconsideration by the Council of Ministers.

Appointment of Ministers

The Prime Minister is appointed by the President and the Prime Minister advices the

President on the appointment of other Ministers. The Members of Parliament are

usually appointed as Ministers but a Non-member of Parliament can also be appointed

as Minister provided he gets elected within six months.

Oath and Salary of Ministers

The Minister swears to bear faith and allegiance to the Constitution of India, uphold the

integrity and sovereignty of India and to faithfully and consciously discharge the duties

of his office. The salaries and allowances of Ministers are determined by the Parliament

from time to time. The Ministers get salary equivalent to that of a member of

Parliament.

Collective Responsibility of the Council of Minister

Article 75 provides that the Council of Ministers are collectively responsible to the Lower House of the Legislature. They work as a team and sink and swim together. If a vote of no confidence is passed in Parliament, the government is responsible collectively, and thus the entire Government resigns.

The consequence will be that a new government will be formed, or Parliament will

dissolve and a general election will be called. Cabinet collective responsibility is not the

same as individual Ministerial responsibility, which states that Ministers are responsible

and therefore culpable for the running of their departments. Also, the Cabinet decisions

bind all Cabinet Ministers.

Individual Responsibility

The Principle of individual responsibility is enshrined in Article 75. The Article provides

that the ministers hold office till the pleasure of the President which means that the

President can remove the minister even though they enjoy the confidence of the Lok

Sabha.

Cabinet vs Council of Ministers

Cabinet is the highest decision making body consisting of Cabinet Ministers, formulating the chief policies and carrying out Coordination of Central Administration. It is the advisory body to the President. The Council of Ministers is wider body consisting of 60 to 70 Ministers including all the three type of Ministers. Its functions are determined ' by the cabinet and it implements the decisions of the Cabinet.

Kitchen Cabinet

It is an informal body consisting of Prime Minister and two or more influential colleagues in whom he has faith and can discuss any problem with them. It is composed of not only Cabinet Ministers but also friends and family members. It reduces the authority and status of the Cabinet as the highest decision making body. The phenomenon of Kitchen Cabinet also exist in USA and Britain.

Composition of the Council of Ministers

There are three categories of Ministers, namely, Cabinet Ministers, Ministers of State and Deputy Ministers

Union Cabinet Minister

They head important Ministries of the Central Government like Defence, Home, External Affairs etc. A Cabinet Minister may also hold additional charges of other Ministries, where no other Cabinet Minister is appointed. Minister of State

The Minister of State can either be given independent charge of MinistrieslDepartments or can be attached to Cabinet Ministers. Hence, they work under the supervision and direction of the Cabinet Ministers. Deputy Ministers Deputy Ministers are not given independent charge of Ministries/ Departments. They are attached to other types of Ministers to help in their administrative and political duties.

Cabinet Committees

As it is very difficult for the Prime Minister to convence the entire cabinet for each and every issue, a system of Cabinet Committees has been introduced to facilitate the smooth functioning of the Government. They provide necessary information to the Cabinet to take a decision on a particular matter. This system also safeguards the Principle of collective responsibility. It also vastly increases the effectiveness of the control of the political executive over bureaucracy. Cabinet Committees are necessary to perform functions devolved on them by the Cabinet. Another advantage of the Cabinet Committees is that they facilitate effective coordination among the Members of the Cabinet.

There are two types of Cabinet Committees, namely,

1. Standing and

2. Adhoc Committees

As the name itself indicates Adhoc Committees are formed to settle some specific problems

and once the task is finished the committee ceases to exist. But Standing Committees yield real

power and are of great importance in the political system.

A Cabinet Committee is headed by a Cabinet Minister and sometimes we also see the Prime

Minister heading a Cabinet Committee. Cabinet Committees are setup by the Prime Minister.

They are Extra-constitutional devices that means there is no mention of Cabinet Committees in

the Constitution. They are setup as per the exigencies of the time.

There are four important Standing Cabinet Committees, namely, Political Affairs Committee

(headed by Prime Minister), Economic Affairs Committee (headed by Prime Minister),

Appointments Committee (headed by Prime Minister) and Parliamentary Affairs Committee

(headed by Home Minister).

Parliament of India

The Parliament is the legislative organ of the Union. It occupies a Pre-eminent and central position in the Indian democratic political system due to adoption of the Parliamentary form of Government. Our founding fathers made arrangements for the working of the Parliamentary Democracy vide elaborate articles in the Constitution. Article 79 to 123 in Part V deals with the President Provisions of the Parliament Parliament

President Lok Sabha Raiya Sabha

Constitutional Arrangement of Parliament

Article 79 provides for a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the Council of States and the House of the People. Though the President of India is not a member of either House of Parliament and does not sit in the Parliament to attend its meetings, he is an integral part of the Parliament. President's assent is required for any Bill, passed by both the Houses of Parliament to become a Law. He also performs certain functions relating to the proceedings of the Parliament, for example, he summons and pro-rogues both the Houses, dissolves the Lok Sabha, addresses both the Houses, issues ordinances when

they are not in session and so on. Constitutional Arrangement of Parliament Article 79 provides for a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the Council of States and the House of the People. Though the President of India is not a member of either House of Parliament and does not sit in the Parliament to attend its meetings, he is an integral part of the Parliament. President's assent is required for any Bill, passed by both the Houses of Parliament to become a Law. He also performs certain functions relating to the proceedings of the Parliament, for example, he summons and pro-rogues both the Houses, dissolves the Lok Sabha, addresses both the Houses, issues ordinances when they are not in session and so on. Composition of Rajya Sabha

Article 80 provides that the Council of States shall consist of

1. Twelve members to be nominated by the President from amongst the persons

having special knowledge or practical experience in respect of literature,

science, art or social service.

2. Not more than two hundred and thirty-eight representatives ofthe States and of

the Union Territories.

The present strength of Rajya Sabha, however, is 245, out of which 233 are

representatives of the States and Union Territories of Delhi and Puducherry and 12 are

nominated by the President. Article 80 clause (4) provides that the representatives of

each State in the Council of States shall be elected by the elected Members of the

Legislative Assembly of the State in accordance with the system of proportional

representation by means of the Single Transferable Vote. The IVth Schedule to the

Constitution provides for allocation of seats to the States and Union Territories in Rajya

Sabha. The allocation of seats is made on the basis of the population of each State.

Consequent on the reorganisation of States and formation of new States, the number

of elected seats in the Rajya Sabha allotted to States and Union Territories has changed

from time to time since 1952.

Representation of States

The representatives of States in the Rajya Sabha are elected by the elected members

of State Legislative Assemblies. The election is held in accordance with the system of

proportional representation by means of the Single Transferable Vote. The seats are

allotted to the States in the Rajya Sabha on the basis of population. Hence, the number

of representatives varies from State to State.

Representation of Union Territories

The representatives of each Union Territory in the Rajya Sabha are indirectly elected by

Members of an Electoral College specially constituted for the purpose. This election is

also held in accordance with the system of proportional representation by means of

the Single Transferable Vote. Out of the seven union Territories, only two (Delhi and

Puducherry) have representation in Rajya Sabha.

Nominated Members

The President nominates 12 Members to the Rajya Sabha from people who have special

knowledge or practical experience in art, literature, science and Social service. The rationale

behind this principle of nomination IS to provide eminent persons a place in the Rajya Sabha

Without going through the process of election. The representatives of the States and of the

Union Territories in the Rajya Sabha are elected by indirect election.

Process for Election

The representatives of each State and two Union Territories are elected by the elected

members of the Legislative Assembly of that State and by the Members of the Electoral

College for that Union Territory, as the case may be, in accordance with the system of

proportional representation by means of the single transferable vote.

The Electoral College for the National Capital Territory of Delhi consists of the elected

members of the Legislative Assembly of Delhi and that for Puducherry consists of the

elected Members of the Puducherry Legislative Assembly. Rajya Sabha is a permanent

house and is not subject to dissolution. However, one-third Members of Rajya Sabha

retire after every second year. A member who is elected for a full term serves for a

period of six years.

The election held to fill a vacancy arising other than expiration of the term of office of a

member is called Bye-election. A member elected in a bye-election remains member for

the remainder of the term of the member who had resigned or died or disqualified to be

member of the House under the Tenth Schedule.

Duration of Rajya Sabha

The election held to fill a vacancy arising other than expiration of the term of office of a

member is called Bye-election. A member elected in a bye-election remains member for

the remainder of the term of the member who had resigned or died or disqualified to be

member of the House under the Tenth Schedule.

The Parliament in the Representation of the PI Act (1951) provided that the term of office

member of the Rajya Sabha shall be six years. Act also empowered the President of India

to Curtail the term of members chosen in the first Rajya Sabha.

Qualifications for Rajya Sabha

Article 84 of the Constitution lays down the qualifications for Parliament.

A person to be qualified for the membership of the Rajya Sabha should posses the

following qualifications

He must be a citizen of India and make and subscribe before some person

authorized, in that behalf by the Election Commission an oath or affirmation

according to the form set out for the purpose in the Third Schedule of the

Constitution.

He must not be less than 30 years of age.

He must prossess such other qualifications as may be prescribed in that behalf by

or under any law made by Parliament.

Disqualifications for Rajya Sabha

Article 102 of the Constitution lays down that person shall be disqualified for being

chosen as and for being, a Member of either House of Parliament

1. If he holds any office of profit under the Government of India or the Government

of any State, other than an office declared by Parliament by Law not to disqualify

its holder.

2. If he is of unsound mind and stands so declared by a competent court.

3. If he is an undischarged solvent.

4. If he is not a citizen of India, or has voluntarily acquired the citizenship of a

Foreign State, or is under any acknowledgement of allegiance adherence to a

Foreign State.

5. If he is so disqualified by or under any Law by Parliament.

A member nominated to the House by the President, however, is allowed to join a

Political Party if he/she does so within the first six months of taking seat in the House. A

member shall not be disqualified on this account, if he voluntarily leaves the membership

of his Political party after he is elected as Deputy Chairman, Rajya Sabha.

Composition of Lok Sabha

The maximum strength of the House envisaged by the Constitution is 552, which is made

up by e of up to 530 members to represent the States 20 members to represent the

Union Territories and not more than two members of the Anglo Community to be

nominated by the President, if in his/her opinion, that community is not adequately

represented in the House. The total membership is distributed among the States in such

a way that the ratio between the number of seats allotted to each State and the

population of the State is, so far as practicable, the same for all States.

Representation of States

The representatives of States in the Lok Sabha are directly elected by the people from

the Territorial Constituencies in States. The election is based on the principle of

Universal Adult Franchise.

Representation of Union Territories

The Constitution has empowered the Parliament to prescribe the manner of choosing

the representatives of the Union Territorites in the Lok Sabha.

Nominated Members

As per Article 331, the President can nominate two members from the Anglo Indian

Community, if the community is not adequately represented in the Lok Sabha.

Election to the Lok Sabha

For the purpose of holding direct elections to the Lok Sabha, each state is divided into

Territorial Constituencies to ensure that there is uniformity of representation in two

respects.

1. Between the different States

2. Between the different ConstituenCIes in the same State. The 42nd Amendment

Act of 1976, froze allocation of seats in the Lok Sabha to the States and the

division of each State into Territorial Constituencies till the year 2000 at the 1971

level.

This ban on readjustment was extended up to year 2026 by the 84th Amendment Act of

2001.

Comparison between

Lok Sabha and Rajya Sabha

The Lok Sabha is the popular House. Its Members are directly elected by the people. But

the Members of the Rajya Sabha are indirectly elected. The Members of the Council of

Ministers at the Centre are responsible to the Lok Sabha and not to the Rajya Sabha.

The Government will have to resign if it loses a vote of confidence in the Lok Sabha The

Money Bill can be introduced only in the Lok Sabha, it cannot be introduced in the

Rajya Sabha Under Article 249, if the Rajya Sabha authorises the Parliament by a

special majority of not less than two-third of its members present and voting, to

legislate on any subject belonging to State List in National Interest, the Parliament can

make a Law on the subject mentioned in the State List

A resolution for the removal of the Vice-President can be initiated only in the Rajya

Sabha. The Rajya Sabha should pass such a resolution with effective majority. Under

Article 312, the Rajya Sabha by a special majority of not less than two-third of its

members present and voting, can authorise the Parliament to create or abolish an All

India Service.

Duration of Lok Sabha

The Lok Sabha is for a term of five years from the date of its first meeting after the

General Elections, after which it gets dissolved automatically. This term may be

extended in case of emergency for one year at a time for any length of time subjected to

Law made by Parliament.

Qualifications for Lok Sabha

Membership of the Lok Sabha requires that

1. The person must be a Citizen of India.

2. He must be not less than 25 years of age.

3. He must possess such other qualifications as may be prescribed in that behalf by

or under any Law made by Parliament.

Disqualifications for Lok Sabha

Under the Constitution, a person shall be disqualified for being elected as a Member

of Parliament.

1. If he is not a Citizen of India or has voluntarily acquired the Citizenship of a Foreign

State or is under any acknowledgement of allegiance to a Foreign State.

2. If he is so disqualified under any Law made by Parliament.

3. If he is an undisharged insolvent.

4. If he holds any office of profit under the Union or State Government (except that

of a Minister or any other office exempted by Parliament).

5. If he is of unsound mind and stands so declared by a court.

Salaries and Allowances

The salaries and allowances of Members of either House of Parliament is determined

by the Parliament. The Constitution has no Provision for the same.

Oath or affirmation

In his oath or affirmation, a Member of Parliament swears

1. to bear true faith and allegiance to the Constitution of India.

2. to uphold the sovereignty and integrity of India.

3. to faithfully discharge the duty upon which he is about to enter.

Unless a member takes the oath, he cannot vote and participate in the proceedings

of the House and does not become eligible to parliamentary parliamentary and

immunities and is liable to a penalty of Rs. 500 for each day he sits or votes as a

member in a House.

Presiding Officers

Chairman of the Rajya Sabha

The presiding officer of the Rajya Sabha is known as the Chairman. The Vice-

president of India is the Ex-officio Chairman of the Rajya Sabha. During any period

when the Vice-President acts as President or discharges the functions of the

President, he does not perform the duties of the office of the Chairman of Rajya

Sabha. The chairman can be removed only if he is removed as the Vice-President.

The Vice-President cannot preside over a sitting of the Rajya Sabha as its Chairman

when a resolution for his removal is under consideration.

Deputy Chairman of Rajya Sabha

Rajya Sabha also chooses from amongst its members, a Deputy Chairman. There is

also a Panel of Vice-Chairmen in Rajya Sabha, the members of which are nominated

by the Chairman, Rajya Sabha. In the absence of the Chairman and Deputy Chairman,

a member from the Panel of Vice-Chairmen presides over the proceedings of the

House

Speaker of the Lok Sabha

Article 93 says that the house of the people shall, as soon as may be, choose two

Members of the House to be respectively Speaker and Deputy Speaker thereof and,

so often as the office of Speaker or Deputy Speaker becomes vacant, the House shall

choose another Member to be Speaker or Deputy Speaker, as the case may be. The

Speaker is the presiding officer of the Lower House of Parliament of India.

The Speaker is elected in the very first meeting of the Lok Sabha after the General Elections for a term of 5 years from amongst the Members of the Lok Sabha. He/she is supposed to resign from his/her original party because as a Speaker, he/she has to remain impartial. Speaker can resign by addressing his resignation to the Deputy Speaker.

The Speaker of the Lok Sabha conducts the business in the House. He/She decides whether

a bill is a Money Bill. He/she maintains discipline and decorum in the House and can punish

a member for their unruly behaviour by suspending them. He/she permits the moving of

various kinds of motions and resolutions like the motion of no confidence, motion of

adjournment, motion of censure and calling attention notice as per the rules. The Speaker

decides on the agenda to be taken up for discussion during the meeting. The date of

election of Speaker is fixed by the President

Speakers of Lok Sabha

Speaker Tenure

Ganesh Vasudev Mavalankar (died) 1952-1956

M Ananthasayanam Ayyangar 1956-1962

Hukam Singh 1962-1967

Neelam Sanjiva Reddy (Resigned) 1967-1969

Gurdial Singh Dhilion (Resigned) 1969-1975

Bali Ram Bhagat 1976-1977

Neelam Sanjiva Reddy (Resigned) 1977-1977

KS Hegde 1977-1980

Bal Ram Jakhar 1980-1989

Rabi Ray 1989-1991

Shivraj V Patil 1991-1996

PA Sangma 1996-1998

GMC Balayogi (Died) 1998-2002

Manohar Gajanan Joshi 2002-2004

Somnath Chatterjee 2004-2009

Ms meira Kumar 2009 till date

Deputy Speaker

The Deputy Speaker of the Lok Sabha is the Vice-Presiding Officer of the Lok Sabha, the

Lower House of Parliament of India. He acts as the Presiding Officer in case of leave or

absence caused by death or illness of the Speaker of the Lok Sabha. The Deputy Speaker is

elected in the very first meeting of the Lok Sabha after the General Elections for a term of 5

years from amongst the Members of the Lok Sabha.

He holds office till either he ceases to be a Member of the Lok Sabha or he himself resigns

from the Lok Sabha. He can be removed from office by a resolution passed in the Lok Sabha

by a majority of its members. He is supposed to resign from his original party because as a

Deputy Speaker, he has to remain impartial.

List of Deputy Speakers

Name Term

MA Ayyangar 30.5.1982-7.3.1956

Sardar Hukam Singh 20.3.1956-31.3.1976

SV Krishnamoorthy Rao 23.4.1962-3.3.1967

RK Khadilkar 28.3.1967-1.11.1969

GG Swell 9.2.1970-18.1.1977

Godey Murahari 1.4.1977-22.8.1979

G Lakshanan 1.2.1980-31.12.1984

M Thambi Durai 22.1.1985-27.11.1989

Shivraj Patil 19.2.1990-13.3.1991

S Mllikarjunaiah 13.8.1991-10.5.1996

Suraj bhan 12.7.1996-4.12.1999

P M Sayeed 17.12.1998-6.2.2004

Charanjit Singh Atwal 9.6.2004-18.5.2009

Karia Munda 8.6.2009-Present

Protem Speaker

The first meeting after election in which Speaker and Deputy Speaker is selected by

Members of Parliament is held under the senior most Member of Parliament, he is

called Protem Speaker.

Protem Speakers of Kok Sabha

Speaker Tenure

Shri GV Mavalankar First

Shri B Das First

Shri Hukam Singh First

Sheth Govind Das Second, Third, Fourth and fifty

Shri DN Tiwari Sixith

Shri Jagijivan Ram Seventh and Eighth

Professor NG Ranga Ninth

Shri Inderjit Gupta Tenth, Eleventh, Twelfth and thirteenth

Shri Somnath Chatterjee Fourteenth

Shri Balasaheb Vikhe patil Fourteenth

Shri Manikrao Hodlya Gavit Fifteenth

Leader of the House

Under the Rules of Lok Sabha, the Leader of the House means the Prime Minister, if

he is a Member of the Lok Sabha, or a Minister who is a Member of the Lok Sabha

and is nominated by the Prime Minister to function as the Leader of the House. His

primary responsibility is to maintain coordination amongst all sections of the House

for a harmonious and meaningful debate in the House. For this purpose, he remains

in close contact not only with the Government but also with the opposition,

individual Ministers and the Presiding Officer.

Leader of the opposition

The office of Leader of the Opposition was given official recognition through the Salary and Allowances of Leaders of the Opposition in Parliament Act, 1977.

This Act defines the Leader of the Opposition in Rajya Sabha, as a Member of the Council of States who is, for the time being, the Leader in that House of the party in opposition to the Government constituting the greatest numerical strength and recognised as such by the Chairman of the Council of States.

The Leader of the Opposition should satisfy three conditions, namely

1. He should be a Member of the House. 2. The Leader in Rajya Sabha of the party in opposition to the Government having

the greatest numerical strength.

3. He should be recognized as such by the Chairman, Rajya Sabha.

In each House of Parliament, there is the Leader of the Opposition. The leader of the largest Opposition Party having not less than one-tenth seats of the total strength of the House is recognised as the Leader of the Opposition in that House. In a Parliamentary System of Government, the Leader of the Opposition has a significant role to play. His main functions are to provide a constructive criticism of the policies of the Government and to provide an alternative Government. The leader of the Opposition has a Cabinet rank.

Whip

A whip is an official in a political party. Whose primary purpose is to ensure party discipline In a Legislature. Whips are a party's enforcers, who typically offer inducements and threaten punishments for party members to ensure that they vote according to the Official Party Policy. A whip's role is also to ensure that the elected representatives of their party are In attendance when important votes are taken: The usage comes from the hunting term whipping In, I.e., preventing hounds from wandering away from the pack.

Sessions of Parliament Summoning The President from time to time summons each House of Parliament to meet. But, the maximum gap between two sessions of Parliament cannot be more than six months. Prorogation The Presiding Officer (Speaker or Chairman) declares the House adjourned sine die, when the business of a session is completed. Within the next few days, the President issues a notification for prorogation of the session. It terminates the session of the House.

Adjournment A sitting of Parliament can be terminated by adjournment or adjournment sine die or prorogation or dissolution (in the case of the Lok Sabha). An adjournment suspends the work in a sitting for a specified time, which may be hours, days or weeks. Adjournment sine die means terminating a sitting of Parliament for an indefinite period. It does not necessarily signify end of the session.

Dissolution The Lok Sabha can be dissolved on the expiry of its tenure of five years or when the President decides to dissolve it. When the Lok Sabha is dissolved, all business including Bills, motions, resolutions, notices, petitions etc pending before it or its committees lapse. New elections are to be held on the dissolution of Lok Sabha. Quorum It is the minimum number of Members required to be present in the house before it can transact any business. It is one-tenth of the total number of Members in each House including the Presiding Officer.

Anti-defection Law

The Anti·defection Law was passed in 1985 during the 52nd Constitutional Amendment, which added the 10th Schedule to the Indian Constitution. The main aim of the law was to combat the evils of political defections. Later in 91st Constitutional Amendment Act, 2003, omitted the provision which provided disqualification on ground of defection not

to apply in case of split

Disqualification

As per 52nd amendment, disqualification would apply in following cases

If a member of a House belonging to a political party voluntarily gives up the

membership of his political party.

Votes or does not vote in the Legislature, contrary to the directions of his political

party. However, if the member has taken prior permission, or is condoned by the

party within 15 days from such voting or abstention, the member shall not be

disqualified.

If an independent candidate joins a political party after the election.

If a nominated member joins a party 6 months after he becomes a member of the

Legislature.

Authority The power to disqualify a member rests with the Chairman or the Speaker of the House. Initially, the Act had the provision that the decision of the presiding officer is final and can not be questioned in any court of law but in Kihoto Hollohan case, this provision was declared unconstitutional as it took away the judicial review power from the courts. Exceptions 52nd Amendment Act is not applicable in following cases

A person shall not be disqualified if his original political party merges with another and he and other members of the old political party become members of the new political party.

Members voluntarily giving up party membership on being elected as presiding officer of the House. The presiding officer of a House is empowered to make rules regarding implementation of 52nd Amendment Act.

Criticism of Anti-defection Law The law does not talk about consequen-ces of expulsion of a member from the party. The ruling of the Speaker is that he should be considered as an unattached member. He cannot join a political party. Another grey area in the law is that it only talks about Members of Legislature but one becomes member only after he/she is sworn in. So the question remains that whether law applies to a person who has been declared elected, but has not taken oath. Advantages 52nd Amendment is a great effort towards combating the evils of political defections. It is because of 52nd Amendment Act that political parties got constitutional recognition, earlier there was no mention of political parties in the

Constitution. It facilitates democratic alignment by allowing mergers. Parliamentary Proceedings The first hour of a sitting of the Lok Sabha is devoted to Questions and that hour is called the Question Hour. The Government is, as it were, put on trial during the question Hour and every Minister whose turn it is to answer questions has to stand up and answer for his or his administration's acts of omission and Commission. The questions are of three kinds, namely, starred, un-starred and short notice. A starred question (distinguished by an asterisk) requires an oral answer and hence supplementary questions can follow. An un-starred question on the other hand, requires a written answer and hence, supplementary questions cannot follow. A short notice question is one that is asked by giving a notice of less than ten days. It is answered orally. Zero Hour The period follows the question hour and it starts at the noon and its duration is one hour (from 12 noon to 1 pm). During the Zero Hour, various issues of public importance are raised without prior notice. Motions Motion is presented with the consent of the Presiding officer. It is necessary for discussion of any matter related to public importance. It is moved by either minister or private members. It is of three types. 1. Substantive Motion 2. Substitute Motion 3. Subsidiary Motion Other Motions of Parliamentary Proceedings Calling Attention Motion With the prior permission of the Speaker, any Member of the Parliament may call the attention of a Minister to a matter of urgent public importance. The Minister may make a brief statement about the matter or he may ask for time to make a statement later. No-confidence Motion It is a resolution introduced by the Opposition claiming that the House has lost its confidence in the Government. If it is passed then Government must resign from the office. It can only be introduced in the Lok Sabha. Rajya Sabha does not enjoy this power because Article 75 says that Council of Minister shall be collectively responsible to Lok Sabha. This motion requires the support of 50 members to be admitted. Censure Motion This motion seeks to censure the Government for its lapses. If the motion is passed in the Lower House, then the Government needs to resign. It can be moved against an individual Minister. This motion should state the reason for its adoption. It is in practice since 1954. Allocation of Seats in Parliament S.No. States/UTs In Raiya Sabha In Lok Sabha 1. Andhra Pradesh 18 42 2 Arunachal

Pradesh 1 2

3 Asom 7 14 4 Bihar 16 40

5 Chhattisgarh 5 11 6 Goa 1 2 7 Gujarat 11 26 8 Haryana 5 10 9 Himachal Pradesh 3 4 10 Jammu & Kashmir 4 6 11 Jharkhand 6 14 12 Karnataka 12 28 13 Kerala 9 20 14 Madhya Pradesh 11 29 15 Maharashtra 19 48 16 Manipur 1 2 17 Meghalaya 1 2 18 Mizoram 1 1 19 Nagaland 1 1 20 Odisha 10 21 21 Punjab 7 13 22 Rajasthan 10 25 23 Sikkim 1 1 24 Tamil Nadu 18 39 25 Tripura 1 2 26 Uttarakhand 3 5 27 Uttar Pradesh 31 80 28 Paschim Benga 16 42

II Union Territiories

1. Andaman and Nicobar Island - 1

2 Chandigarh - 1

3. Dadra and Nagar Haveli - 1

4. Daman and Diu - 1

5. Delhi (The National Capital Territory of

Delhi)

3 7

6. Lakshadweep - 1

7. Puducherry 1 1

III Nominated Members

Total 245 545

Privilege Motion It is a motion moved by a Member of Parliament. He charges the Minister with

committing a breach of the privilege of the House by withholding or distorting facts.

Adjournment Motion It is introduced in the Parliament to draw attention of the House to a

definite matter of urgent public importance and needs the support of 50 members to be

admitted. It can only be moved in Lower House of the Parliament. It should not raise any matter

which is under adjudication by a court.

Motion of Thanks The first session after each general election and the first session of every

fiscal year is addressed by the President. In this address the President outlines the policies and

programmes of the Government in the preceding year and ensuing year. This address is

discussed in both the Houses of Parliament on motion called the Motion of Thanks.

Half-an-Hour Discussion Half-an-Hour Discussion can be raised on a matter of sufficient public

importance which has been the subject of a recent question in Lok Sabha irrespective of the

fact whether the question was answered orally or the answer was laid on the Table of the

House and the answer which needs elucidation on a matter of fact. Normally not more than

half an hour is allowed for such a discussion.

Short Duration Discussion It is also known as Two Hour Discussion as the time allotted for such

a discussion should not exceed two hours. The Members of the Parliament can raise such

discussions on a matter of urgent public importance. The Speaker can allot two days in a week

for such discussions. There is neither a formal motion before the house nor voting.

Legislative Procedure in Parliament

The Legislative procedure is identical in both the Houses of Parliament. A Bill is a

proposal for Legislation and it becomes an Act or law when duly enacted. Bills may be

classified under four heads viz, Ordinary, Money Financial and Constitutional

Amendment Bills. The Legislative procedure of Government Bills and Private Members

Bill is same. Money and Financial Bills cannot be introduced in the Rajya Sabha. The

other bills can be introduced in either House.

Various Stages in the passage of the Bill

First Reading A Bill is the draft of a Legislative Proposal which has to pass through various stages

before it becomes an Act of Parliament. The Legislative process starts with the introduction of a

Bill in either House of Parliament, Lok Sabha or Rajya Sabha. A Bill can be introduced either by a

Minister or by a Private Member. In the former case, it is known as a Government Bill and in the

latter case it is called as a Private Member's Bill.

When the House grants leave to introduce the bill, the mover of the bill introduces it by

reading its title and objectives. No discussion on the bill takes place at this stage. Later,

the bill is published in the Gazette of India. If a bill is published in the Gazette before its

introduction, leave of the House to introduce the bill is not necessary. The introduction

of the bill and its publication in the Gazette constitute the first reading of the bill.

Second Reading The Second Reading consists of consideration of the Bill which is in two stages.

First Stage The first stage consists of general discussion on the Bill as a whole when the

principle underlying the Bill is discussed and may be referred to a Select Committee.

Third Reading At this stage, the debate is confined to arguments either in support or rejection

of the Bill without referring to the details thereof further than that are absolutely necessary. If

the majority of members present and voting accept the bill, the bill is regarded as passed by the

House. In passing an Ordinary Bill, a simple majority of members present and voting is

necessary. But in the case of a Bill to amend the Constitution, a majority of the total

membership of the House and a majority of not less than two-thirds of the members present

and voting is required in each House of Parliament.

Consideration of the Bill at a Joint Sitting

If a Bill passed by one House is rejected by the other House, or, the Houses have finally

disagreed as to the amendments to be made in the Bill, or more than six months elapse

from the date of the receipt of the Bill by the other House without the Bill being passed

by it, the President may call a joint sitting of the two Houses to resolve the deadlock.

If, at the joint sitting of the Houses, the Bill is passed by a majority of the total number of

Members of both the Houses present and voting, with the amendments, if any, accepted

by them, the Bill is deemed to have been passed by both the Houses. There cannot be a

joint sitting of both Houses on a Constitution Amendment Bill. A joint session of

Parliament can be called under Article 108 of the Constitution.

Article 108 has been used to push through legislation on only three occasions

In May, 1961 to pass the Dowry Prohibition Bill.

In May, 1978 to pass the Banking Service Commission (Repeal) Bill.

In March, 2002 to pass the Controversial Prevention of Terrorism Act with 425 votes in

favour of the legislation, 296 against and 60 abstentions.

Financial Bills

Financial Bills are those bills that deal with fiscal matters, that is, revenue or

expenditure. However, the Constitution uses the term Financial Bill in a technical sense.

Financial Bills are of three kinds

1. Money Bills-Article 110 2. Financial Bills (I)-Article 117 (1)

3. Financial Bills (H)-Article 117 (3)

Money Bills

Bills, which exclusively contain provisions for imposition and abolition of taxes, for

appropriation of money out of the Consolidated Fund, etc, are certified as Money Bills.

Money Bills are considered as such only after they are certified by the Speaker of Lok

Sabha as Money Bills. The decision of the Speaker in this regard cannot be called into

question.

Money Bills can be introduced only in Lok Sabha. Rajya Sabha cannot make

amendments in a Money Bill passed by Lok Sabha and transmitted to it. It can,

however, recommend amendments in a Money Bill, but must return all Money Bills to

Lok Sabha within fourteen days from the date of their receipt. It is open to Lok Sabha to

accept or reject any or all of the recommendations of Rajya Sabha with regard to a

Money Bill.

If Lok Sabha accepts any of the recommendations of Rajya Sabha, the Money Bill is

deemed to have been passed by both Houses with amendments recommended by

Rajya Sabha and accepted by Lok Sabha and if Lok Sabha does not accept any of the

recommendations of Rajya Sabha, the Money Bill is deemed to have been passed by

both Houses in the form in which it was passed by Lok Sabha without any of the

amendments recommended by Rajya Sabha.

Assent of the President

When a Bill is assed by both Houses, the Secretariat of the House Which is last in possession of

the Bill obtains the assent of the President. In the case of a Money Bill or a bill passed at a joint

sitting of the Houses, the Lok Sabha after the President has given his assent to it.

The President may give his/her assent or withhold his assent to a bill. The President may also

return the Bill (except a Money Bill) with his/her recommendations to the Houses for

reconsiderations, and if the House pass the Bill again with or without amendments the

President cannot withhold his/her assent to the Bill. The President, however, is bound to give

his/her assent to a Constitution Amendment Bill passed by the House of Parliament by the

requisite special majority and, where necessary, ratified by the States. Since the constitutin

Amendment Bill is introduced only on recommendation of the president.

f a Money Bill passed by Lok Sabha and transfer Rajya Sabha for its recommendations is

not retl Lok Sabha within the said period of fourteen d~ deemed to have been passed

by both Houses expiration of the said period in the form in which passed by Lok Sabha.

Financial Bills (I)

A Financial Bill (I) is a bill that contains not onl: all the matters mentioned in Article 110,

but al matters of general legislation. In case of a disagl between the two Houses over

such a bill, the Pl can summon a joint sitting of the two Houses to the deadlock. When

the bill is presented President, he can either give his assent to thE withhold his assent

to the bill or return the reconsideration of the Houses.

Financial Bills

(II) A Financial Bill (II) contains provisions in expenditure from the Consolidated Fund of

India. but does not include any of the matters mentioned in 110. Financial Bill (II) can be

introduced in House of Parliament and recommendation President is not necessary for

its introduction. It either rejected or amended by either Ho Parliament.

In case of a disagreement between the two House such a bill, the President can

summon a joint si the two Houses to resolve the deadlock. When the presented to the

President, he can either give his to the bill or withhold his assent to the bill or return

the bill for reconsideration of the Houses.

Supplementary/Excess Grants

No expenditure III excess of the sums authorized by Parliament can be incurred without

the sanction of Parliament. Whenever a need arises to incur expenditure, a

Supplementary estimate is laid Parliament.

If any money has been spent on any service dl Financial Year in excess of the amounts

granted for service and for that year, the Minister of Financial/Railways presents a

Demand for Excess The procedure followed in Parliament in regard to

Supplementary/Excess Grants is more or less the as is adopted in the case of estimates

included General Budget.

Funds

Indian Constitution provides three kinds of fun Central Government

1. Consolidated Fund of India

2. Public Accounts of India

3. Contingency Fund of India Consolidated Fund of India Article 266 provides the Parliament to have 'Consolidated Fund of India'. It is a fund to which all receipts are credited and all payments are debited. In other words,

1. all revenues received by the Government of India. 2. all loans raised by the Government by the issue of Treasury Bills, loans or ways

and means of advances. 3. all money received by the Government in repayment of loans from the

Consolidated Fund of India. All the legally authorised payments on behalf of the Government are made out of this fund. No money out of this fund, can be appropriated (issued or drawn) except in accordance with a Parliamentary Law. Public Account of India 266(2)-All other public moneys received by or on behalf of the Government of India or the Government of a State other than those credited to the consolidated fund are credited to the Public Account of India. Public Accounts of India All public money received by Government of India on or on behalf of, shall be credited to the Public Accounts of India. It includes departmental deposits, remittances, judicial deposits, provident fund deposits etc. This account can be made by without parliamentary appropriation as these payments are mostly in the nature of banking transactions. Contingency Fund of India he Constitution authorised the Parliament to establish a 'Contingency Fund of India', Article 267 into which amounts determined by law are paid from time to time. Accordingly, the Parliament enacted the Contingency Fund of India Act in 1950. This fund is placed at the disposal of the President and he can make advances out of it to meet unforeseen expenditure pending its authorisation by the Parliament. In 2005, the amount of money in the Contingency Fund of India was increased from Rs. 50 crore to Rs. 500 crore. Budget in the Parliament The budget is a statement of the estimated receipts and expenditure of the

Government of India in a financial year, which begins on 1st April and ends on 31st March of the following year. The Government of India has two budgets, namely, the Railway Budget and the General Budget. While the former consists of the estimates of receipts and expenditures of only the Ministry of Railways, the latter consists of the estimates of receipts and expenditure of all the Ministries of the Government of India (except the railways). Demands for Grants The estimates of expenditure included in the Budget and required to be voted by Lok Sabha are in the form of Demands for Grants. Each Demand contains first a statement of the total grant and then a statement of the detailed estimate divided into items. Members of Parliament can move motions to reduce any demand for grant such motions are called as 'Cut motion' which are of three types.

1. Token Cut means that the amount of the demand be reduced by Rs. 100 in order to ventilate a specific grievance which is within the sphere of the responsibility of the Government of India.

2. Policy Cut means that the amount of the demand be reduced to Rs. 1 representing disapproval of the policy underlying the demand.

3. Economy Cut means that the amount of the demand be reduced by a specified amount representing the economy that can be effected. Such specified amount may be either a lump sum reduction in the demand or omission or reduction of an item in the demand.

The Annual Financial Statement (Article 112), laid before both the Houses of Parliament constitutes the Budget of the Union Government. Presentation The General Budget is presented in Lok Sabha by the Minister of Finance. He makes a speech introducing the Budget and it is only in the concluding part of his speech that the proposals for fresh taxation or for variations in the existing taxes are disclosed by him. The Annual Financial Statement is laid on the Table of Rajya Sabha at the conclusion of the speech of the Finance Minister in Lok Sabha. Budget Documents Alongwith the Annual Financial Statement, Government presents the following documents

1. An Explanatory Memorandum briefly explaining the nature of receipts and expenditure during the current year and the next year and the reasons for variations in the estimates for the two years,

2. The Books of Demands showing the provisions Ministry-wise and 3. A separate demand for each department and service of the Ministry. The

Finance Bill which deals with the taxation measures proposed by Government is introduced immediately after the presentation of Budget. It is accompanied by a memorandum explaining the Provisions of the Bill and their effect on the finances of the country.

Vote on Account

Since Parliament is not able to vote the entire budget before the commencement of the new financial year, the necessity to keep enough finance at the disposal of Government in order to allow it to run the administration of the country remains. A special provision is, therefore, made for Vote on Account by which Government obtains the Vote of Parliament for a sum sufficient to incur expenditure on various items for a part of the year. Normally, the Vote on Account is taken for two months only. But during election year

or when it is anticipated that the main Demands and Appropriation Bill will take longer time than two months, the Vote on Account may be for a period exceeding two months Discussion

The Budget is discussed in two stages in Lok Sabha. First, there is the General

Discussion on the Budget as a whole. This lasts for about 4 to 5 days. Only the broad

outlines of the Budget and the principles and policies underlying it are discussed at this

stage. Scrutiny by Departmental Committees

After the General Discussion on the Budget is over, the Houses are adjourned for about

three to four weeks. During this gap period, the 24 Departmental Standing Committees

of Parliament examine and discuss in detail the demands for grants of the concerned

Ministries and prepare reports on them.

These reports are submitted to both the Houses of Parliament for consideration. The Standing Committee System established is 1993 (and expanded in 2004) makes

parliamentary financial control over Ministries much more detailed, close, in-depth

and comprehensive. Appropriation Bill After the General Discussion on the Budget proposals and Voting on Demands for

Grants have been completed, Government introduces the Appropriation Bill. The Appropriation Bill is intended to give authority to Government to incur expenditure

from and out of the Consolidated Fund of India. The procedure for passing this Bill is

the same as in the case of other money Bills. Finance Bill The Finance Bill seeking to give effect to the Government's taxation proposals which is

introduced in Lok Sabha immediately after the presentation of the General Budget, is taken up for consideration and passing after the Appropriation Bill is passed. However, certain provisions in the Bill relating to Levy and collection of fresh duties or variations in the existing duties come into effect immediately on the expiry of the day on which the Bill is introduced by virtue of a declaration under the Provisional Collection of Taxes Act. Parliament has to pass the Finance Bill within 75 days of its in trod induction. Parliamentary Committees Parliamentary Committees are of two kinds Adhoc Committees and the Standing Committees. Adhoc Committees are appointed for specific purpose and they cease to exist when they finish the t: assigned to them and submit a report. The principal Adhoc Committees are the Select and Joint Committees on Bills. Others like the Railway Convention Committee, the Committees on the Draft Five Year PI: and the Hindi Equivalents Committee were appointed for spec purposes. Apart from the Adhoc Committees, each House of Parliament . Standing Committees like the Business Advisory Committee, Committee on Petitions, the Committee of Privileges and the Rules Committee. Of special importance is yet another class of Committees which act Parliament's Watch Dogs over the Executive. These are Committees on Subordinate Legislation, the

Committee on Government Assurances, the Committee on Estimates, the Committee

on Public Accounts and the Committee on Public Undertakings and Departmentally

Related Standing Committees (DRSCs). The Committee on Estimates, the Committee

on Public Accounts, Committee on Public Undertakings and DRSCs play an important 1

in exercising a check over Governmental Expenditure and Po Formulation. Estimates committee

This Committee consists of thirty members by the Lok Sabha every year from amongst

its members. A Minister is not eligible for election t this Committee. The term of the

Committee is one year. The main function of the Committee on Estimates is to report

what economies, improvements in organisation, efficiency, or administrative reform,

consistent with the policy underlying the estimates, may be effected and to suggest alternative policies in order to bring about efficiency and economy in administration.

Committee on Public Undertakings

The Committee on Public Undertakings consists of 15 members elected by the Lok

Sabha; 7 members of Rajya Sabha are also associated with it. A Minister is not eligible

for election to this Committee. The term of the Committee is one year. Functions of Public Undertakings The functions of the Committee on Public Undertakings are

To examine the reports and accounts of Public Undertakings; To examine the reports, if any, of the Comptroller and Auditor General on the Public

Undertakings, To examine in the context of the autonomy and efficiency of the Public Undertakings

whether the affairs of the Public Undertakings are being managed in accordance with sound business principles and prudent commercial practices, and

Such other functions vested in the Committee on Public Accounts and 1 Committee on Estimates In relation to 1 Public Undertakings as are not covered clauses (a), (b) and (c) above and as may be allotted to the Committee by. Speaker from time to time. The Commit does not, however, examine matters major Government Policy and matters day-to-day administration of undertakings.

Committee on Public Accounts This Committee consists of 22 members (15 from Lok Sabha and 7 from Rajya Sabha). A Minister is not eligible for election to this Committee. The term of the Committee is one year. The main duty of the Committee is to ascertain whether the money granted by Parliament has been spent by Government 'within the Scope of the Demand'. The Appropriation Accounts of the Government of India and the Audit Reports presented by the Comptroller and Auditor General mainly form the basis for the examination of the Committee. Public Accounts Committee and Estimates Committee are complementary to other. While the Estimates Committee deals with the estimates of Public expenditure, the public Accounts Committee examines mainly the accounts showing the appropriation of sums granted by the house for the expenditure of the Government of India in order to ascertain whether the Parliament and for the purpose for which it was granted. As a matter of practice since 1967, a member of opposition is being appointed as the Chairman of the public Account Committee. Public Accounts Committee is not concerned with the question of Policy and its findings are export facto that means the committee can point out irregularities only after they have taken place. Departmental Standing Till 13th Lok Sabha, each Standing Committee consisted of not more than 45 members, 30 to

be nominated by the Speaker from amongst the Members of Lok Sabha and 15 to be nominated by the Chairman, Rajya Sabha from amongst the Members of Rajya Sabha. However, with re-structuring of DRSCs in July, 2004 each DRSC consists of 31 members, 21 from Lok Sabha and 10 from Rajya Sabha. Committee of Privileges The work of this committee is to examine every question involving breach of privilege of the House or of the Members or of any Committee thereof referred to it by the House or by the Speaker. It also determines with reference to the facts of each case whether a breach of privilege is involved and make suitable recommendations in its report. Committee on Absence of Members from the Sittings of the House This committee considers applications from members for leave of absence from the sittings of the House and examine every case where a member has been absent for a period of 60 days or more, without permission, from the sitting of the House. Committee on Government Assurances Scrutinise the assurances, promises, undertakings etc given by Ministers from time to time and to report on the extent to which such assurances etc have been implemented and to see whether such implementation has taken place within the minimum time necessary for the purpose. Committee on Petitions This committee considers and reports on petitions presented to the House. It also considers representations from various individuals, associations etc not covered by the rules relating to petitions and give directions for their disposal. Committee on Private Member's Bills and Resolutions It allots time to Private Member's Bills and Resolutions, examines Private Member's Bills seeking to amend the Constitution before their introduction in Lok Sabha and also examines such Private Member's Bills where the legislative competence of the House is challenged. Rules Committee It considers matters of procedure and conduct of business in the House and recommends any amendments or additions to the Rules of Procedure and Conduct of Business in Lok Sabha that are considered necessary. The stages in the normal financial legislation include

1. Presentation of the Budget. 2. Discussion on the Budget. 3. Passing of Appropriation Bill. 4. Vote on Account. 5. Passing of the Finance Bill.

Select the correct answer using the codes givens below (a) 1,1 and 3 (b) 1,3 and 5 (c) 1,2,3 and 4 (d) 1,2,3 and 5 Assertion (A) Appropriation bill is a part of every budget. Reason (R) Any expenditure that involves withdrawal from the Consolidated Fund of India needs an Appropriations Bill to the passed. Codes

(a) Both A and R are true and R is the correct explanation of A (b) Both A and R are true but R is not the correct explanation of A (c) A is true, but R is false (d) R is true, but A is false

What will follow if a Money Bill is substantially amended by the Rajya sabha? [UPSC 2013] (a) The Lok Sabha may sill proceed with the Bill, accepting or not accepting the

recommendations of the Rajya Sabha (b) The Lok Sabha cannot consider the Bill further (c) The Lok Sabha may send the Bill to the Rajya Sabha for reconsideration (d) The President may call a joint sitting for passing the Bill.

Consider the following statements the parliamentary Committee on Public Accounts [UPSC 2013]

1. Consists of not more than 25 members of the Lok Sabha. 2. Scrutinizes appropriation and finance accounts of the Government. 3. Examines the report of the comptroller and Auditor General of India.

Which of the statements given above is/are correct? (a) Only 1 (b) 2 and 3 (c) Only 3 (d) All of the above 1. (d) 2. (a) 3. (a) 4. (b)

State Government Part VI of our Constitution deals with the State Government. State Government includes State Executive, State Legislature and State Judiciary. The State Executive consists of the Governor, the Chief Minister, the State Council of Ministers and the Advocate General of the State.

Governor Article 153, provides that there shall be a Governor for each State. 7th Constitutional Amendment Act of 1956, provides that one person can be appointed as the provides that one person can be appointed as the Governor for two or more States. Article 154 (1) holds that the Executive Power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. The Governor acts as an agent of the Central Government and thus has a dual role. Appointment of the Governor According to Article 155, the Governor of a State shall be appointed by the President by warrant under his hand and seal. Thus, he is a nominee of the Central Government. As per Supreme Court, the Governor is an independent constitutional office and is not under the control of or subordinate to he Central Government. The Constitution provides for only two qualifications for the appointment of a person as a Governor. As per Article 157, on person shall be eligible for appointment as Governor unless he is citizen of India and has completed the age of 35 years. He Governor or any person discharging the functions of the Governor shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of the High Court or in his absence, the senior most Judge of that Curt available. His oath or aff8rmation (under Article 159) prescribe that he would preserve, protect and defend the Constitution and the law. Article 158 lays down the following conditions for the office of the Governor

The Governor must not be a member of either House of Parliament or of a House of the Legislature of any State specified in the First Schedule and if a member of either ouse of Parliament or of a House of the Legislature of any such State be appointed Governor, he shall be deemed to have vacated his seat in that house on the date on

which he enters upon his office as Governor. The Governor must not hold any other office of profit. The Governor is entitled without payment of rent to the use of his official residences

and shall be also entitled to such emoluments, allowances and privileges as may be determined by Law of the Parliament.

Where the same person is appointed as Governor of two or more States, the emoluments and allowances payable to the Governor shall be allocated among the States in such proportion as the President may by order determine.

The emoluments and allowances of the governor shall not be diminished during his term of office. At present, Governor’s salary is Rs. 1.1 lakh per month.

Punchhi commission’s Recommendations on Governor Appointed in 2007, the second panel on Centre-State relations has made following recommendations regarding State Governor

Endorsing an NCRWC recommendation, it says appointment of Governor should be entrusted a committee comprising the Prime Minister Home Minister, Speaker of the Lok Sabha Chief Minister of the concerned State. Vice-President can also be involved in the process.

On the Governors qualifications, it suggests that the nominee should not have participated active politics for at least a couple of years before his appointment.

Cciticising arbitrary dismissals, it says the practice to treating Governors as political football must stop. Unlike the Sarkaria Report, the Punchhi Report is categorical that a Governor be given fixed five years tenure.

The panel also felt that Governors should have the Right to Sanction prosecution of a Minister against the advice of the Council of Ministers, However, it wants the convention of making them Chancellors of Universities done away with. There should be critical changes in the role of the Governor including fixed five years tenure as well as their removal only through impeachment by the state Assembly.

Uuderlining that removal of a Governor before a reason related to his discharge of fuctions, it has proposed provisions for Impeachment by the State Legislature along the same lines as that of President by Parliament. This, significantly, goes against the Doctrine of Pleasure upheld bvy the recent Supreme Court Judgment.

Term of Office Article 156 (1) states that the Governor holds office during the pleasure of the President. The Governor may, by writing under his hand addressed to the President, resign his office. The Governor holds office for a term of five years from the date on which he enters upon his office, if not removed by President earlier. He shall also continue to hold office, even on the expiry of his term, until his successor enters upon his office. Article 160 provides that the President shall make such provisions as he thinks fit for the discharge of the functions of the Governor of a State in any contingency not provided for. The Governor has no security of term and no fixed term of office as he may be removed by the President at any time. Privileges of the Governor

The Governor of a State is not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties.

No criminal proceedings what, so ever shall be instituted or continued

against the Governor of a State, in any court during his term of office. No process for the arrest or imprisonment of the Governor of a State shall

issue from any court during his term of office. No civil proceedings, in which relief is claimed against the Governor of a State, shall be instituted during his term of office in any court in respect of any act purporting to be done by him in his personal capacity. Whether before or after, he entered upon his office as Governor of such State, until the expiry of two months after notice in writing has been delivered to the Governor. Sarkaria commission’s (1983-86) Recommendations It was recommended that a politician from the Ruling Party at the centre should not be made the Governor of a State run by another party or a coalition of parties. Article 155 of the Constitution should be suitably amended to ensure effective that the Chief Minister of a State while, appointing a Governor in that State. The Vice-president of India and the Speaker of the Lok Sabha should also be consulted while making this appointment though this consultation should be confidential, informal and not a matter of Constitutional obligations. He should be a man of some eminence in some field. He should not belong to the State, where he has to serve as the Governor and be a detached figure with little record of participation in the local politics of the State. Powers and Functions of the Governor The Governor enjoys Executive, Legislative, Financial and Judicial Powers. Executive Power The Governor is the Chief Executive Head of the State. He is the Nominal Executive Head like the President. He may exercise this power either directly or through officers subordinate to him. Article 162 states that the Executive Power of the State extends to matters with respect to which the Legislature of the State has power to make laws. Article 166(1) requires that all executive action of the Government of the State is expressed to be taken in the name of the Governor. It is not till this formality is observed that the action can be regarded as that of the State. Legislative Powers The Governor summons the sessions of both Houses of the State Legislature and prorogues them. The Governor inaugurates the State Legislature by addressing it after the Assembly Elections and also at the beginning of the first session every year. A Bill that the State Legislature has passed, can become a law only after the Governor gives assent. The Governor can return a Bill to the State Legislature, if it is not a Money Bill, for reconsideration. However, if the State Legislature sends it back to the Governor for the second time, the Governor must assent to it. The Governor has the power to reserve certain Bills for the President under Article 200. When the State Legislature is not in session and the Governor considers it necessary to have a law, then the Governor can promulgate ordinances as per Article 213. These ordinances are submitted to the State Legislature at its next session. They remain valid for no more than six weeks from the date the State Legislature is reconvened unless approved by it earlier. Under Article 171(3)(e) and (5), the Governor may nominate to the Legislative Council of the state (where it exists) one sixth members from among persons having special knowledge or practical experience in respect of literature, science, art, co-operative movement and social service. Governor may also nominate to the Legislative Assembly a person from the Anglo-Indian Community if he feels the community needs

representation and is not adequately represented in the Assembly (Article 333). Financial Powers Money Bill can be introduced in the State Legislative Assembly only on the prior recommendation of the Governor. He/she also causes to be laid before the State Legislature the annual financial statement, which is the State Budget. Further no demand for grant shall be made except on his/her recommendations. He can also make advances out of the Contingency Fund of the State to meet any unforeseen expenditure. Moreover, he constitutes the State Finance Commission. Appointments Made by Governor as Executive Head The Governor appoints the Chief Minister of a State. He/she also appoints the Advocate General and the Chairman and members of the State Public Service Commission. The President consults the Governor in the appointment of Judges of the High Courts and the, Governor appoints the Judges of, the District Courts. Discretionary Powers Article 163(1) provides that the Governor is to act in accordance with the advice of the Council of Ministers except in so far as he is by or under this Constitution, required to exercise his functions or any of them in his discretion. Article 163(2) clarifies that if any question arises whether any matter is or is not a matter of discretion of the Governor, the decision of the Governor is final and the validity of anything done by the Governor shall not be called in question on the ground. Article 200 empowers the Governor to reserve Bills, having been passed by the House or the Houses of the State Legislature, as the case may be, for the consideration of the President.

Punchhi Commission's View Regarding Discretionary Power Enjoyed by Governor

The Punchhi Commission Report has recommended that a Constitutional Amendment be brought about to limit the scope of discretionary powers of the Governor under Article 163 (2). Governors should not sit on decisions and must decide matters within a four months period. Judicial Powers

According to Article 161, the Governor of a State shall have the power to grant pardons, reprieves, respites or

remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence

against any law relating to a matter to which the executive power of the State extends.

Constitutional Position of Governor Indian Constitution provides Parliamentary form of Government both in centre as well as in

states where Governor is only nominal executive, the real powers vested in the Council of

Ministers, headed by the Chief Minister. The Governor has to exercise his powers and functions

with the aid and advice of Council of Ministers.

He can only use his powers only in the matters, in which he is required to act in his discretion. It

is clear in the Constitution that if any question arises whether the matter is within the Governor's discretion or not, the decision of the Governor is final and the validity of anything

done by him cannot be called question.

In some cases, the Governor has certain special responsibilities to discharge according to the

directions issued by the President, though he has to consult the Council of Ministers and Chief

Minister, acts finally on his discretion. A Comparison between Powers and Position of he President and the Governor President Governor The President is not only the Head of the Each State has its own laws and the

State and the Government, he is also the Commander-in-Chief of the Armed Forces

Governor who looks after internal governance of every State He is the person, who finalises the Budget of the State and also has the power to appoint Judges in the courts.

The President cannot function without the aid and advise of the Council of Ministers

Governor can exist without the aid and advice of the Council of Ministers.

The President can grant pardon, reprieve, respite, suspension, remission or commutation in respect to punishment or sentence by a Court Martial

Governor can suspend, remit or commute a death sentence. The Governor does not enjoy such power.

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