You are on page 1of 95

Constitutional law important questions:

Q. 35 Discuss the position of the President under the Indian


Constitution.

Ans. Position of President. - Article 52 of the Constitution lays down that there shall be a
President of India. Article 53 (1) provides that the executive powers of the union shall vest in
the President. Article 74(1) lays down that there shall be a Council of Ministers with the
Prime Minister at the head to aid and advise the President. Article 74(2) provides that the
question whether any advice was given by the Council of Ministers shall not be questioned
in any court of law. Article 75 provides that 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.
A purely literal interpretation of these provisions conveys the impression that the President if
so desires can become a dictator. But this interpretation is not in tune with the spirit of the
constitution. In a parliamentary form of Government, the President is a titular head and the
real powers are vested with the Council of Ministers. In various cases like Ram Jawaya v.
State of Punjab, AIR 1955 SC 544, U.N. Rao v. Indira Gandhi, AIR 1974 SC
2192 and M/s Bishambhar Dayal Chandra Mohan v. State of U.P., AIR 1982 SC 33, the
Supreme Court has held that the President is merely a ceremonial head and the real power
lies with the Council of Ministers.
The Constitution (42nd Amendment Act, 1976) has now removed all doubts about the
position of President to a greater extent. It has amended Article 74 which makes it
obligatory for the President to act in accordance with the advice given by the Council of
Ministers. But the Constitution (44th Amendment Act, 1978) has inserted a proviso to clause
(1) of Article 74 according to which the President may require the Council of Ministers to
reconsider such advice either generally or otherwise and the President shall act in
accordance with such reconsidered advice. This provision recognises the essential rule of
the President that he can advise and guide the Government.
Under our Parliamentary system of Government the President is the Constitutional head of
the state while the real power vests in the Council of Ministers. In view of the following
provisions the position of the President is clear:

(1) Article 75(3) provides that the Council of Ministers is collectively responsible to the
House of People for the executive functions. How can the Council of Ministers be made
responsible, for an act which is not performed by it but by the President.
(2) Article 78(a) provides that it shall be the duty of the Prime Minister to communicate the
President on any matter on which a decision has been taken by a Minister.....
(3) The President is bound by the advice of the Council of Ministers even after the
dissolution of the House of the People. Even after the dissolution of the House, the Council
of Ministers remain in office and advise the President in exercise of his powers. Any
exercise of powers by the President under such circumstances will be unconstitutional in
view of Article 74(1) of the Constitution. (U.N. Rao v. Indira Gandhi, AIR 1971 SC 1002).
Q. 36 How is the President of India elected ? How can he be
impeached ? What qualifications are necessary for election of the
President ? What are the terms and conditions of his office?

Ans. Election of President of India According to Article 54 of Constitution of India,


President shall be elected by the members of an electoral college constituting of (a) the
elected members of both houses of Parliament, (b) the elected members of the legislative
assemblies of the States.
Article 55 says that so far as practicable there shall be uniformity in the scale of
representation of the different States at the election of the President. For the purpose of
securing such uniformity among states inter se as well as parity between the states as a
whole and the union the number of votes which each elected member of 'Parliament and of
the legislative assembly of each state is entitled to cost at such election shall be determined
in following manner:(a) Every elected member of legislative assembly of a State shall have as many votes as
there are multiplies of one thousand in quotient obtained by dividing the population of the
State by the total number of the elected member of the Assembly;
(b) if after taking the said multiplies of one thousands the remainder is not less than five
hundred then the vote of each member referred to in sub-clause (a) shall be further
increased by one;
(c) each 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 the members of

Legislative Assemblies of the State under sub- clauses (a) and (b) by the total number of
the elected members of both Houses of Parliament fractions exceeding one-half being
counted as one and other fractions disregarded.
The election of the President shall be held in accordance with the system of proportional by
means of the single transferable vote and the voting at such election shall be by secret
ballot.
The Constitution (42nd Amendment) Act, 1976 substitutes the old explanation given in
Article 55. According to the substituted explanation the expression "population" used in
Article 55 means the population as ascertained at the last census of which the relevant
figures have been published:
The reference in the Explanation to the last preceding census of which the relevant figures
have been published shall, until the relevant figures for the first census taken after the year
2000 have been published, be construed as a reference to the 1971 census.
This change has been brought under the new population policy. Accordingly, it makes
consequential change in the relevant articles, namely, 81 and 82 relating to Lok Sabha.
Article 170 relating to State Assemblies, Article 330 and 332 relating to reservation of seats
for Scheduled Castes and Scheduled Tribes.
The number of votes which any voter is eligible to vote for Presidential election may be
mathematically represented as follows:
(1) The number of votes a member of any Legislative Assembly is eligible to cast be
determined in accordance with the following formula:Population of State :- 1000
Divided by total number of elected members of State Assembly.
If the remainder after dividing by 1000 is 5000 or more than the vote of each member shall
be further increased by one.
(2) The number of votes of a member of Parliament shall be determined in accordance with
the following method:Total votes assigned to members of all State Assemblies divided by total number of elected
members of both Houses of Parliament.
If the fraction exceeds one-half than the vote of each MP's will further be increased by one
vote.
The President and Vice-President Election Act, 1974 provides that the name of the
President candidate must be proposed by at least 10 electors and be seconded by 10
electors and also provides for the security deposit of Rs. 2500.

In Charan Lal Sahu v. Shri Neelam Sanjeeva Reddy, AIR 1978 SC 499, the Supreme
Court observed that Article 58 only provides the qualifications or conditions for the eligibility
of a candidate for President Election. It has nothing to do with the nomination of a candidate
which requires ten seconders.
In re President Election case, AIR 1974 SC 1682, the holding of the election of the
President was challenged on the ground that the electoral college as mentioned in Articles
54 and 55 would be incomplete because the Gujarat State Legislative Assembly was
dissolved. The Supreme Court held that the election to the office of the President must be
held before the expiration of the term of the President, notwithstanding the fact that at the
time of such election the Legislative Assembly of Gujarat is dissolved.
1. Qualifications. - Article 58 lays down the qualifications which a person must possess for
being elected to the office of the President of India;
(a) He must be a citizen of India.
(b) He must have completed the age of 35 years.
(c) He must be qualified for election as a member of the House of the People (i.e. he must
be registered as a voter in any Parliamentary Constituency).
(d) He must not hold 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.
But the following persons shall not be deemed to hold any office or profit and hence
qualified for being a candidate for Presidentship. They are (a) the President and VicePresident of the Union, (b) the Government of any State, (c) the Minister of the Union or of
any State [Article 58].
2. Condition of President's Office. - Article 59 says that the President cannot be a
member of either House of Parliament or of a House of the Legislature of any State. If a
member of either House of Parliament or of a State Legislature is 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. The President shall not hold any other office of profit.
Q. 37 Describe the Procedure for impeachment of President.

Ans. Procedure for impeachment of the President Article 61 of the Indian Constitution
lays down the procedure for the impeachment of the President. The provision of Article 61,
are as follows:According to Article 61 (1) when a President is to be impeached for violation of the
Constitution, the charge shall be preferred by either House of Parliament. No such charge
shall be preferred unless:
(a) the proposal to prefer such charge is contained in a resolution which has been moved
after at least fourteen days notice in writing signed by not less than one fourth of the total
number of the members of the House has given their intention to move the resolution
(Article 61(2)), and
(b) such resolution has been passed by a majority of not less than two thirds of the total
membership of the House. (Article 61(3)).
According to Article 61(4), when a charge has been so preferred by either House of the
Parliament the other House shall investigate the charge of cause to be investigated and the
Parliament shall have the right to appear and to be represented to such investigation. If as a
result of the investigation a resolution is passed by a majority of not less than two thirds of
the total membership of caused to be investigated declaring that the charge preferred
against the President, has been sustained, such resolution shall have the effect of removing
the President from the office as from the date on which the resolution is so passed.
Q. 38 Discuss the Power of President under Constitution of India.

Ans. The powers of the President under the Indian Constitution, are as given below:(1) Executive Powers - Article 52 of the Constitution lays down that there shall be a
President of India. Further Article 53(1) provides that the executive powers of the union shall
be vested in the President and it shall be exercised by him either directly or through officers
sub-ordinate to him in accordance with law. The officers sub-ordinate to him, include
ministers also.(Emperor v. Srinath, AIR 1945 PC 163).
(2) Power of Appointment - The President shall appoint the Prime Minister and other
ministers shall be appointed by the President on the advice of the Prime Minister (Article
75(1). The President appoints:
(i) The Attorney General for India (Article 76);
(ii) The judges of the Supreme Court (Article 124);

(iii) The judges of the High Courts (Article 217);


(iv) Comptroller and Auditor General of India (Article 148);
(v) Governors of States (Article 155);
(vi) Finance Commission (Article 280);
(vii) Members and Chairman of Union Public Service Commission (Article 316);
(viii) Joint Public Service Commission for a group of states (Article 316);
(ix) Commission to investigate on the condition of Backward Classes (Article 340);
(x) Commission to report on the Administration of Scheduled Areas (Article 339);
(xi) Special officers for Scheduled Castes and Scheduled Tribes (Article 338);
(xii) Commission and Committee of Parliament on official language (Article 341).
(3) Military Powers - The President shall be Supreme Commander of the Defence forces
and the exercise thereof shall be regulated by law and Parliament shall have power to
regulate or control the exercise of military powers by the President.
(4) Power to grant pardons - According to Article 72 (1) the President shall have the power
to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit and
commute the sentence of any person convicted by any offence:
(a) in all cases where the punishment or sentence is by a Court Marshall.
(b) in all cases where the punishment or sentence is for an offence against any law relating
to a matter to which the executive powers of the Union extends.
(c) in all cases where the sentence is a sentence of death.
(5) Emergency Powers : Part XVIII (i.e. Articles 352 to 360) of the Constitution deals with
the emergency powers of the President. The emergencies envisaged under the Constitution
are of three kinds:- (1) emergency arising out of war, external aggression or armed rebellion
[Article 352], (2) emergency due to failure of constitutional machinery in the State, and (3)
financial emergency. If the President is satisfied that the security of India is threatened by
war, external aggression or armed rebellion [Article 352], or if either on the receipt of report
of the Governor of the State or otherwise he is satisfied that a situation has arisen in which
the Government of State cannot be carried on in accordance with the Constitution [Article
356] or a situation has arisen whereby the financial stability of India is threatened [Article
360], he may proclaim an emergency. A proclamation of emergency made under Article 352
may be revoked by a subsequent proclamation. Such a proclamation must be laid before
each House of Parliament and ceases to operate at the expiration of one month unless
approved by both Houses. The President may durin

(6) Diplomatic Power : The President appoints ambassadors, Ministers and Consuls to
other countries and receives in return corresponding foreign diplomatic representatives. He
represents India in the International sphere and can negotiate treaties subject to ratification
by Parliament which has the power to legislate on all matters which bring India into relations
with foreign countries.
(7) Power to Summon and Address Houses of Parliament:
(i) The President shall from time to time - (a) summon the houses or either house to meet at
such time and place as he thinks fit (b) prorogue the House; (c) Dissolve the House of
Parliament (Article 86(1)).
(ii) The President may send message to either House of Parliament whether with respect to
a Bill then pending in Parliament, or otherwise, and a House to which any message is so
sent shall, with all convenient despatch, consider any matter required by the message to be
taken into consideration [Article 86(3)].
(iv) At the commencement of the first session after each general election to the House of
the People and at the commencement of the first session of each year the President shall
address both Houses of Parliament assembled together and inform Parliament of the cause
of its summons [Article 87].
(8) Powers to give assent to Bills, etc. - When a Bill has been passed by the Houses of
Parliament it shall be presented to the President and the President shall declare either that
he assents to the Bill or that he withholds assent therefrom.
But the President may as soon as possible after the presentation to him of a Bill for assent,
return the Bill if it is not a Money Bill, to the Houses with a message requesting that they will
reconsider the Bill or any specified provision thereof and, in particular, will consider the
desirability of introducing any such amendments as he may recommend in his message,
and when a Bill is so returned, the Houses shall reconsider the Bill accordingly, and if the
Bill is passed again by the Houses with or without amendment and presented to the
President for assent the President shall not withhold assent therefrom [Article 111(1)].
No Bill for the formation of a new State or the re-distribution of the boundaries of any State
shall be introduced in either Houses of Parliament except on the recommendation of the
President. (Article 3).
(9) Ordinance-making Power of the President - [Article 123] : Article 123 provides that if
at any time when both Houses of the Parliament are not in session and the President is
satisfied that circumstances exist which render it necessary for him to take immediate
action, he may issue such ordinance as the circumstances appear to him to require. The

ordinances issued by him shall have the same force as on Act of Parliament. Such
ordinances, however, must be laid before both Houses of Parliament and shall cease to
operate, at the expiry of the six weeks from the date of re-assembly of Parliament, unless a
resolution disapproving it is passed by both Houses before the expiration of six weeks. The
President may, if he likes, withdraw such an ordinance at any time. An ordinance
promulgated under Article 123 is a law having the same force and effect as an Act of
Parliament. Hence, an ordinance will be void in so far it makes any provision which under
the Constitution the Parliament is not competent to make. Thus an ordinance cannot violate
the fundamental rights.
(10) Privilege of the President : Article 361 guarantees the following privilege to the
President:
1. The President shall not be answerable to any court for the exercise and performance
of the powers and duties of his office or of any act done or purporting to be done by him in
the exercise of those powers and duties. However, the conduct of the President may be
brought under review by any Court, tribunal or body appointed or designated by either
House of Parliament for the investigation of the charge in impeachment proceedings. The
immunity afforded to the President will not restrict the right of any person to bring case
against the Government of India.
2. No criminal proceedings whatsoever shall be instituted and continued against the
President in any Court during the term of office.
3. No process for the arrest or imprisonment of the President shall be issued from any
Court during his term of office.
4. No civil proceedings in which relief is claimed against the President shall be instituted
during his 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 had entered upon his office until (a)
a notice in writing has been given to the President. (b) two months have passed after the
service of such notice, and (c) the notice states the nature of proceeding, the cause of
action the name, residence and description of the party taking the proceedings and the
relief claimed.
Q. 39 Describe the qualifications, election, functions and the position
of the Vice-President of India.

Ans. There shall be a Vice-President of India (Article 63). The Vice-President shall be
elected by the members of both Houses of Parliament assembled at a joint meeting in
accordance with the system of proportional representation by means of the single
transferable vote and the voting at such election shall be by secret ballot [Article 66(1)].
The Presidential and Vice-Presidential Election (Amendment) Act, 1974, provides that the
name of the candidates for Vice-President must be proposed by 5 electors and be
seconded by 5 electors and also provides for the security of Rs. 2500.
The Vice-President shall not be a member of either House of Parliament or of a House of
the Legislature of a State, 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. [Article
66(2)].
No person shall be eligible for elections as Vice-President unless he (a) is a citizen of India;
(b) has completed the age of thirty-five years; and (c) is qualified for election as a member
of the Council of States. [Article 66(3)].
A person shall not be eligible for election of a 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 [Article 66(4)].
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 [Article 66, Explanation].
The Vice-President shall hold office for a term of five years from the date on which he enters
upon his office:
The Vice-President may by writing under his hand addressed to the President, resign his
office:
The Vice-President may be removed from his office by a resolution of the Council of States
passed by a majority of all the then members of the Council and agreed to by the House of
the People; but no resolution for the purpose of this clause shall be moved unless at least
fourteen days notice has been given of the intention to move the resolution.
The Vice-President shall, notwithstanding the expiration of the term of office of VicePresident shall complete before the expiration of the term [Article 68(1)]. An election to fill a
vacancy in the office of Vice-President occurring by reason of his death, resignation or
removal, or otherwise shall be held as soon as possible after the occurrence of the vacancy,
and the person elected to fill the vacancy shall, subject to the provisions of Article 67, be

entitled to hold office to the full term of five years from the date on which he enters upon his
office [Article 68(2)].
Parliament may make such provisions as it thinks fit for the discharge of the function of the
parliament in any contingency, not provided for in this Chapter (Article 70).
The Vice-President of India shall be ex-officio Chairman of Rajya Sabha (Article 64) and
shall on any vacancy in the office of the President by reason of his death resignation or
removal or otherwise act as a President until the date on which a new President is elected
to fill such vacancy enters upon his office. Even when the President is unable to discharge
his function. Until the date on which the President resumes his duties (Article 65).
Q. 40 Discuss the position of Prime Minister in the Council of
Ministers? What are his powers and functions?

Ans. Article 74(1) says that 'there shall be a Council of Ministers with the Prime Minister at
the head to aid and advise the President, who shall in the exercise of his functions, act in
accordance with such advise. Article 74(2) then provides that "the question whether any
advice was given by the Minister to President cannot be inquired by any Court."
According to Article 75(1), the Prime Minister shall be appointed by the President and other
ministers shall be appointed by President on the advice of the Prime Minister.
So the Constitution of India makes it obligatory for the President to appoint a Council of
Ministers and he must exercise his functions with the aid and advice of the ministers. The
relation between the President and the Council of Ministers is confidential in view of Article
74(2).
POSITION OF PRIME MINISTER
According to Article 75(1) the Prime Minister is appointed by the President and other
ministers shall be appointed by President on advice of Prime Minister. In Parliamentary
system of Government, the selection of the Prime Minister is an important function of
President. The Prime Minister will be appointed that person who has majority of members in
House of People. So in appointing the Prime Minister, the President can hardly exercise
discretion and President's choice to select Prime Minister is restricted to the leader of the
party in majority in Lok Sabha or a person who is in position to win the confidence of the
majority in that House. Thus the paramount consideration for the President in appointment
of Prime Minister is to see that the person chosen has support of majority in the House.

According to Article 75(3) "Council of Ministers shall be collectively responsible to the


House of the People."
The Council of Ministers consists of three categories of Ministers - Ministers of
Cabinet rank, Minister of State and Deputy Ministers. The Cabinet rank Ministers are the
heads of their departments. All Cabinet Ministers are not members of the Cabinet. They
attend the meetings of the Cabinet when specially invited by the Prime Minister and when
the matter concerning their department is discussed by the Cabinet. The salaries and
allowances of Ministers shall be such as Parliament may from time to time by law
determine. The Ministers of State are formally of Cabinet status and are paid the same
salary as the Cabinet Ministers and they hold independent charge of their department. The
Deputy Ministers are paid lesser salary than the Cabinet rank Ministers and have no
separate charge of a department. Their task is to assist the Ministers with whom they are
attached to in their administrative duties.
The Cabinet is the smaller body of the Council of Ministers. Though the Indian
Constitution nowhere mentions the word Cabinet but it does incorporate the essentials of a
Cabinet system of British Government. In Britain, the Cabinet is a child of chance and is
essential based upon convention, i.e., unwritten rules. The Cabinet is thus an extraconstitutional growth based upon convention. The Cabinet is the supreme policy making
body. The Council of Ministers never meet as a whole it never discusses policy matters. All
senior most Ministers are the members of the Cabinet. The Council of Ministers shall be
collectively responsible to the House of the People. The Minister must be a member of
either House of Parliament.
A non-member can become a Minister - Article 75(5) provides that a Minister who for a
period of six consecutive months is not a member of either House of Parliament shall cease
to be a Minister at the expiration of that period. Thus, there is no legal bar that a Minister
must be a Member of Parliament. An outsider may be appointed a Minister but he must
become Member of Parliament within the period of six months. If he is not elected within the
time mentioned above he is bound to resign from the legislature.
In S.P. Anand v. H.D. Deve Gowda, AIR 1997 SC 272 it was held that a person who is not
a member of either House of Parliament can be appointed by Prime Minister for six months
as per Article 75(5).
However in B.R. Chauhan v. State of Punjab, AIR 2001 SC 2707 Supreme Court has
held that a non-member who fails to get elected during the period of six consecutive months
after his appointment as Minister cannot be re-appointed as Minister.

The Powers & Functions of Prime Minister The Council of Ministers headed by the Prime
Minister is the 'ex-facto' executive head of the State, the President being the formal
executive head. The function of the Council of Ministers, is to aid and advise the President.
Previously there existed a controversy as to whether the above tendered by the Council of
Ministers was binding on the President. The Supreme Court had decided in Ram Jawaya v.
State of Punjab, AIR 1995 SC 549 and Shamasher Singh v. State of Punjab, AIR 1974
SC 2193 that the advice of Council of Ministers was binding on the President. After
Constitution (44th Amendment Act, 1978), the President may require the Council of
Ministers to reconsider such advice. Article 74(2) provides that the question whether any
and if so what advice was tendered by ministers to the President shall not be required into
in any court.
The Council of Ministers with Prime Minister at its head, normally conducts the
administration of the Union Government through the various departments, formulates the
policy of the Government, determines its legislative programme and use its initiative in the
introduction and passage of legislation. It is the cabinet headed by the Prime Minister, that
prepares the Union budget and moves demands for grants. The foreign policy of India is
formulated by the cabinet. Even the emergency powers of the President, are actually
exercised by the cabinet. In short the Council of Ministers with Prime Minister at the head, is
the actual executive of the Union and the President is merely its ceremonial head.
Q. 41 Describe the provisions relating to the appointment of
Attorney General of India. Discuss his functions.

Ans. According to Article 76 the President shall appoint a person who is qualified to be
appointed a judge of the Supreme Court of India to be Attorney General of India. The
Attorney General shall hold office during the pleasure of the President. He shall receive
such remuneration as the President may determine. Thus the power to appoint the Attorney
General and to remove him from office is vested in the President, but he exercises this
power on the advice of the Council of Ministers.
Duties of Attorney General
The Attorney General gives advice to the Government of India upon such legal matters as
may be referred to him and perform such duties of a legal character as may be assigned to
him, by the President from time to time. He discharges functions conferred on him by or
under the Constitution or any other law.

According to the rules made by the President, the Attorney General, in addition, is required
to appear on behalf of the Government of India in all cases in the Supreme Court in which
the Government of India is concerned, also he represents the Government of India in any
reference made by President to the Supreme Court under Article 143.
The Government of India may also require him to appear in any High Court in any case in
which the Government of India is concerned. In the performance of his duties, the Attorney
General has the right of audience in all courts in India. He has also the right to speak in and
otherwise to take part in the proceedings of either House of Parliament and parliamentary
committees. He enjoys all the parliamentary privileges which are available to members of
the Parliament.
Q. 42 Discuss the composition of Parliament of India. Discuss about
relation between the two Houses of Parliament.

Ans. According to Article 79 of Constitution, the Parliament of India, shall consists of three
organs. The President, the Council of States (Rajya Sabha) and the House of people (Lok
Sabha). Though President is not a member of either House of Parliament, yet he is integral
part of the Parliament. No Bill passed by the Parliament shall become law unless assented
by President, like the English Crown the President is associated with the Parliament of the
country.
THE RAJYA SABHA
The Rajya Sabha or Council of State is the upper House of Parliament. The maximum
membership of the Rajya Sabha is fixed at 250 of whom 12 shall be nominated by the
President and the remainder i.e. 238 shall be representatives of States and Union
Territories (Article 80(1).
The representatives of States are elected by the members of the Legislative Assemblies in
accordance with the system of proportional representation by means of the single
transferable vote. The representatives from the Union Territories are chosen in such a
manner a Parliament may by law determine. The allocation of seats to each State or Union
Territory and numbers of seats allocated to each in the Rajya Sabha are specified in the
Fourth Schedule. The 12 nominated persons are chosen by the President from amongst the
persons having special knowledge or practical experience in Literature, science, Art and
Social Service [Article 80(3)]. The nominated members do not participate in the election of
the President of India.

The Vice-President of India shall be the ex officio Chairman of the Rajya Sabha. The Rajya
Sabha shall also elect a member of the House to be a Deputy Chairman [Article 89]. When
the office of Chairman is vacant or he is acting as the Vice-President or discharging the
function of President, his duties shall be performed by the Deputy Chairman. If the office of
the Deputy Chairman is also vacant the duties shall be performed by such member of the
Rajya Sabha as the President may appoint for that purpose. The Chairman presides over
the sittings of the House and in the absence the Deputy Chairman presides. If both are
absent then such person as may be determined by the rule of procedure of the Council and
if no such person is present such other person as may be determined by the Council shall
act as Chairman [Article 91].
A Deputy Chairman shall vacate his office if he ceases to be a member of the Council. He
may resign his office by writing to the Chairman. He may also be removed from his office by
a resolution of the Council passed by a majority of all the then member present [Article 90].
But such a resolution can only be moved by giving at least 14 days' notice. While a
resolution for the removal of the Chairman (Vice-President) is under consideration, the
Deputy Chairman, shall not preside. The Chairman shall have the right to speak and take
part in the proceedings but shall have no right to vote on such resolution or on any other
proceedings [Article 92].
The Rajya Sabha is a permanent House. Although, the Rajya Sabha is a permanent body
but in respect of powers it enjoys inferior position vis-a-vis the Lok Sabha. A money bill can
only be introduced in the Lok Sabha. The Rajya Sabha has no powers in respect of a
money bill. A vote of non-confidence cannot be passed against the Government by the
Rajya Sabha.
However Rajya Sabha fulfil following purposes:(1) It is considered useful because senior-politicians and statesmen might get an easy
access in it without undergoing the ordeal of general election necessary for the members of
Lok Sabha so that experience and talent is not lost to the country and they may discuss
question of public interest.
(2) The existence of Rajya Sabha stops the drastic changes in the law of the country made
in the heat of monetary passion and affords opportunity for its reconsideration by delaying
its adoption for a limited period.
(3) The Rajya Sabha is a House where the State are represented keeping with the federal
principles [Articles 83(a), (b)].
LOK SABHA

The maximum number of membership of Lok Sabha is fixed at 545. Article 81 provides
that out of 545, 525 will be elected members by election in different territorial constituencies
in States and 20 members will represent Union Territories. The members of Union
Territories shall be chosen in such a manner as the Parliament may by law provide. The
representatives of the states are chosen by direct election from territorial constituencies in
the states on the basis of adult suffrage. The President may, if he is of the opinion that the
Anglo-Indian community is not adequacy represented in the Lok Sabha, nominate not more
than two members of that community to the Lok Sabha. Every citizen of India who is not
less than 18 years of age shall be entitled to take part in the parliamentary election and
shall have right to vote in the election of Lok Sabha, if he is not otherwise disqualified under
the Representation of Peoples' Act.
According to Article 81(2)(a) there shall be allotted to each state a number of seats in the
Lok Sabha, in such manner that the ratio between that number and the population of the
state is, so far as practicable, the same for all states; and (b) each state shall be divided into
territorial constituencies in such manner that the ratio between the population of each
constituency and the number of seats allotted to it, so far as practicable, the same
throughout the state.
Provided that the provisions of sub-clause (a) of clause (2) of Article 81 shall not be
applicable for the purpose of allotment of seats in the Lok Sabha to any state so long as the
population of the state does not extend to six millions.
The allocation of seats in the Lok Sabha to each state is determined on the basis of
population. The expression, "population" in this article means the population as ascertained
at the last preceding census. The reference in this clause to the last preceding census is
census of 1971. The Constitution (42nd Amendment act, 1976) provides that the seats in
the Lok Sabha will be allocated on the basis of 1971 census and this will continue to be so
till the year 2000. This means that there will be no change in the number of seats in the Lok
Sabha on the basis of 1981 and 1991 censuses. The Amendment provides that the redelimitation of constituencies undertaken after each census shall take effect on such date
as the President may by order specify.
Seats shall be reserved in the Lok Sabha for the Scheduled Castes and the Scheduled
Tribes (Article 330). This reservation was made originally for ten years from the
commencement of the Constitution. Now it has been extended to forty years (Article 334).
The normal life of the Lok Sabha is five years. This term may be reduced by a
dissolution of the House by the President. The normal life of Lok Sabha may be extended

where a proclamation of emergency under Article 352 is in operation. Such extension


should not exceed one year at a time and not exceed in any case beyond a period of six
months after proclamation of emergency has ceased to be in operation (Article 83).
Sessions of Parliament - The President shall from time to time summon each House of
Parliament to meet at such time and place as he thinks fit, but six months shall not
intervene between its last sitting in one session and the date appointed for its first sitting in
the next session [Article 85(1)].
At the commencement of the first session after each general election to the House of
People and at the commencement of the first session of each year the President shall
address both Houses of Parliament assembled together and inform Parliament of the
causes of its summons (Article 87).
The President may address either House of Parliament or both Houses assembled together
and for that purpose require the attendance of members. The President may send
messages to either Houses of Parliament, whether with respect to a Bill then pending in
Parliament or otherwise, and a House to which any message is sent shall with convenient
despatch consider any matter required by the message to be taken into consideration.
(Article 86).
Prorogation of the Houses. - The President may from time to time prorogue the Houses or
either House. Prorogation does not end the life of the House. It only terminates its session.
The House may need and consider the pending business.
Dissolution of Lok Sabha - The President may, from time to time, dissolve the Lok Sabha
(Article 85). However, in actual practice this power sis exercised by the Prime Minister and
the President dissolves the Lok Sabha on his advice. So long as the Prime Minister is in
majority in the legislature the President is bound to dissolve the Lok Sabha if advised by
him. But if the Prime Minister looses the majority in the House or defeated in a vote of noconfidence the President will not be bound to dissolve the Lok Sabha on the advice of such
a Prime Minister. In such a case, the President may exercise his own discretion.
Q. 43 What are the Qualifications for Membership of Parliament?
What are their disqualification ?

Ans. Qualification for membership of Parliament - A person for being chosen as a


member for Parliament must be (a) a citizen of India, (b) not less than 30 years of age in the
case of the Council of States and not less than 25 years of age in the case of House of the

People, (c) possessing such other qualification as may be prescribed by Parliament, (d)
taken an oath before some person authorised in that behalf by the Election Commission
according to form set out for the purpose in Third Schedule [Article 84].
The Representation of Peoples Act, 1951, requires that a person's name should be
registered as a voter in any Parliament Constituency.
The Constituency does not prescribe any educational qualification for membership of
Parliament.
Disqualifications - A person is disqualified for being chosen and for continuing as a
member of Parliament if he suffers from following disqualifications [Article 102]: (a) If he
holds any office of profit under Central or the State Government other than an office
declared by Parliament by law not to disqualify its holder [Article 102(1)]. (b) If he is of
unsound mind and a competent court has declared him to be so. (c) If he is an
undischarged insolvent. (d) If he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or under any acknowledgement of allegiance or adherence of
a foreign state. (e) If he is so disqualified under any law made by Parliament. For this
purpose, Parliament has prescribed the necessary disqualifications in the Representation of
Peoples Act, 1951.
A Minister in the Central or the State Government is not considered as holding the office of
profit [Article 102(2)].
Disqualifications under the Representation of Peoples Act are - (1) Corrupt practice at
an election, (2) conviction for an offence resulting in imprisonment for two or more years, (3)
failure to lodge an account for election expenses, (4) having an interest or share in the
contract for supply of goods or execution of any work or performance of a service to the
Government, (5) being a director or managing agent or holding an office of profit in a
Corporation in which the Government has 25% share, (6) dismissal from Government
service for corruption or disloyalty to the State.
Disqualification on ground of defection - the 52nd amendment has amended Articles
101, 102, 190 and 191 and added a new Schedule, the Tenth Schedule to the Constitution
which specifies the disqualifications on the ground of defection. The amendment has added
a new clause (2) to Articles 102 and 191 which provide that a member shall be disqualified
for being a member of either House of Parliament or of State Legislatures if he incurs the
disqualifications specified in the Tenth Schedule:(1) if he voluntarily gives up the membership of the political party on whose ticket he is
elected to the House; or

(2) if he votes or abstains from voting in the House against any direction of the political party
or by any person or authority authorised by it in this behalf, without the prior permission, of
such party and unless it has been condoned by the party within 15 days from the date of
voting or abstention; or
(3) if any nominated member joins any political party after the expiry of six months from the
date on which he takes his seat in the House.
Exceptions - The above disqualification will however not apply (1) if a member of
Parliament or State Legislature goes out of his party as a result of a split in the original party
provided such group consists of not less than 1/3 of the total membership of that party in the
House, (2) if a member goes out as a result of a merger of his original political party with
another political party provided 2/3 of the members of the legislature party have agreed to
such merger, or (3) if a member, after being elected as the presiding officer gives up the
membership of the party to which he belonged, or does not rejoin that party or becomes a
member of another party.
Decision on questions of disqualification of Members - Article 103 provides that if any
question arises as to whether a member of either House of Parliament has become subject
to any disqualification mentioned under Article 102 the question shall be referred to the
President whose decision shall be final. However, the President is required to obtain the
opinion of the Election Commission before giving any decision on matter of qualifications
and shall act according to it.
According to Article 101 when a sitting member becomes subject to a disqualification after
his election he will ipso facto cease to be member and his seat shall become vacant. No
person can be a member of both Houses of Parliament at the same time. If a person is
elected member of both Houses of Parliament, the Parliament may provide by law in which
Houses he will vacate his seat. No person can be a member of both the Parliament and the
State Legislature. If a person is so elected then at the expiry of such time as the President
may by rules specify, that person's seat in the Parliament shall become vacant unless he
has previously resigned his seat in the State Legislature [Article 101(2)].
The Representation of Peoples Act, 1951, provides that if a person is elected to both
Houses of Parliament, he must intimate within 10 days from the publication of the election
result in which House he desires to serve.
Q. 44 Discuss the Legislative powers of the Parliament under the
Indian Constitution.

Ans. The most important functions of the Parliament is the making of laws. The legislative
powers of the Parliament is initiated through procedure for introduction and passage of a
Bill. The Bills may be of two kinds:(a) Ordinary Bills, (b) Money Bills
(a) Procedure for passing Ordinary Bills : Except Money Bills and other Financial Bill, a
Bill may originate in either House of Parliament. Such a Bill shall not be deemed to have
been passed by the Houses of Parliament unless it has been agreed to by both Houses,
either without amendment or with such amendments only as are agreed to by both Houses.
A Bill pending in Parliament shall not lapse by reason of prorogation of the Houses.
A Bill pending in the Rajya Sabha which has not been passed by the Lok Sabha shall not
lapse on the dissolution of the Lok Sabha.
A Bill which is pending in Lok Sabha or which having been passed by the Lok Sabha is
pending in Rajya Sabha shall, subject to the provision of Article 108, lapse on the
dissolution of the Lok Sabha (Article 107).
Joint sitting of Both Houses in certain Cases - Article 108 provides that if after a Bill has
been passed by one House and transmitted to the other House:
(a) the Bill is rejected by other House; or
(b) the Houses have finally disagreed as to the amendments to be made in the Bill;
(c) more than six months have elapsed from the date of the reception of the Bill by the other
House without the Bill being passed by it.
Where the President has under clause (1) notified his intention of summoning the Houses to
meet in a joint sitting neither House shall proceed further with the Bill, but the President may
at any time after the date of his notification, summon the Houses to meet in a joint sitting for
the purpose specified in the notification and if he does so, the Houses shall meet
accordingly.
If at joint sitting of the Houses, the Bill with such amendments, if any, as agreed in the joint
sitting is passed by majority of the total number of members of both Houses present and
voting, it shall be deemed to have been passed by both Houses for the purpose of this
Constitution.
Special Procedure in respect of Money Bills - A money Bill shall not be introduced in the
Council of States except on the recommendation of the President [Article 117(1)].

After a Money Bills has been passed by the Lok Sabha it shall be transmitted to the Rajya
Sabha for its recommendations and the Rajya Sabha shall within a period of fourteen days
from the date of its receipt return the Bill to the Lok Sabha with its recommendations and
the Lok Sabha may thereupon either accept or reject all or any of the recommendations of
the Rajya Sabha.
If the Lok Sabha accepts any of the recommendations of the Rajya Sabha, the money Bill
shall be deemed to have been passed by both Houses with the amendments recommended
by the Rajya Sabha and accepted by the Lok Sabha.
If the Lok Sabha does not accept any of the recommendations of the Rajya Sabha, the
Money Bill shall be deemed to have been passed by both Houses in the form in which it
was passed by the Lok Sabha without any of the amendments recommended by the Rajya
Sabha.
If a Money Bill passed by the Lok Sabha and transmitted to the Rajya Sabha for its
recommendations is not returned to the Lok Sabha within the said period of fourteen days, it
shall be deemed to have passed by both Houses at the expiration of the said period in the
form in which it was passed by the Lok Sabha (Article 109).
Rajya Sabha, thus enjoys only a recommendatory authority over the passage of money Bill.
It is not authorised to reject or amount Money Bill passed by the Lok Sabha.
ASSENT TO BILLS
When a Bill has been passed by both the Houses of Parliament, it shall be presented to
President, and the President shall declare either that he assents to the Bill or that he
withholds assent therefrom.
The President may as soon as possible, after the presentation to him, a Bill for assent,
return the Bill, if it is not money Bill, to the Houses with a message requesting that they will
reconsider the Bill or any specified provision thereof and in particular will consider the
desirability of introducing such amendments as he may recommend in his message and
when a Bill is so returned, the House shall reconsider the Bill, accordingly and if the Bill is
passed again by the Houses with or without amendment and presented to President for
assent the President shall not withhold assent therefrom (Article 111).
Q. 45 Write Note on : Money Bill
Ans. Money Bill - Article 110(1) defines that a Money Bill is a Bill which contains only
provisions with respect to all or any of the following matters:(a) the imposition, abolition, remission, alteration or regulation of any tax,

(b) the regulation of the borrowing of money or the giving of any guarantee by the
Government of India,
(c) the custody of the Consolidated Fund or the Contingency Fund, the payment or
withdrawal of money from such Fund,
(d) the appropriation of money out of the Consolidated Fund of India,
(e) the declaring of any expenditure to be charged on the Consolidated Fund of India,
(f) the receipt of money on account of the Consolidated Fund of India or the public account
of India or the custody or issue of such money or the audit of the accounts of the Union or of
a State,
(g) any matter incidental to any of the matters specified in sub- clauses (a) to (f).
But a Bill is not money Bill by reason only that it provides for(a) the imposition of fines or other pecuniary penalties, or
(b) the payment of fees for licence or service rendered, or
(c) imposition, abolition, remission, alteration or regulation of any tax by any local authority
or body for local purposes [Article 113(2)].
If any question arises whether Bill is a Money Bill or not the decision of the Speaker of the
Lok Sabha shall be final. So when a Bill is sent to the Rajya Sabha or presented to the
President for assent, a certificate of the Speaker shall be endorsed on it that it is a Money
Bill [Article 110(4).
A Money Bill can only be introduced in the Lok Sabha. It cannot be introduced in Rajya
Sabha [Article 109(1)]. A Money Bill can only be introduced with the recommendation of the
President. However, no recommendation of the President is necessary for the moving of an
amendment taking provision for the reduction or abolition of any tax [Article 117(1), Proviso].
After a Money Bill has been passed by the Lok Sabha, it is sent to the Rajya Sabha for its
recommendations. The Rajya Sabha must return the Bill to the Lok Sabha within 14 days
from the receipt of the Bill with its recommendation. The Lok Sabha may either accept or
reject all or any of the recommendations of the Rajya Sabha. If the Lok Sabha accepts any
of the recommendations by the Lok Sabha, the Money Bill shall be deemed to have been
passed by both Houses with the amendments by the Rajya Sabha and accepted by the Lok
Sabha. If a Money Bill passed by the Lok Sabha and sent to the Rajya Sabha for its
recommendations is not returned to the Lok Sabha within 14 days, the Bill shall be deemed
to have been passed by both Houses at the expiration of the said (14 days) period in the
form in which it was passed by the Lok Sabha. Thus the Rajya Sabha can at most detain a

Money Bill for 14 days only [Article 109]. If the Lok Sabha rejects all the recommendations
of the Rajya Sabha, the bill shall be deemed to have been passed by both Houses in the
form in which it was passed by the Lok Sabha. Then it will be presented to the
Q. 46 What do you understand by the Annual Financial Statement
and what is the procedure in respect of it?

Ans. Annual Financial Statement - Budget [Article 112] - According to Article 112 the
President shall in respect of every financial year cause to be laid before both the Houses of
Parliament an annual financial statement commonly know as the Budget. This statement
gives out the estimated income and expenditure for that year. This estimated expenditure is
shown separately under two heads - (a) the sums charged upon the Consolidated Fund of
India and (b) the sums required to meet other expenditure out of the Consolidated Fund of
India. The expenditure or revenue account should also be distinguished from the other
expenditures.
The following expenditures are charged on the Consolidated Fund of India:
(1) The Salary and allowances of the President and other expenditure relating to his office.
(2) Salaries and allowances of the Chairman and Deputy Chairman of the Rajya Sabha and
the Speaker and the Deputy Speaker of the Lok Sabha.
(3) Debt charges for which the Government of India is liable.
(4) Salaries, allowances and pensions payable to Judges of the Supreme Court, the
Comptroller and Auditor-General of India, Judges of the High Courts and Federal Court.
(5) Any sums required to satisfy any judgement, decree or award of any court or tribunal.
(6) Any other expenditure declared by this Constitution or by Parliament by law to be so
charged.
Discussion and voting on Budget - According to Article 113 the expenditure which is
charged on the Consolidated Fund of India shall not be submitted to the vote of Parliament.
However, Houses are not prevented from discussing any of these items of expenditure.
Appropriate Bills - No money can be taken out from the Consolidated Fund of India unless
the Appropriation Act is passed [Article 114(3)]. Therefore after the demands for grants
under Article 113 are passed by the Lok Sabha, a Bill known as Appropriation Act is
introduced in the Lok Sabha. The Bill specifies all the grants made by the Lok Sabha, the
expenditure charge on the Consolidated Fund of India as shown in the previous statement

before Parliament. But no amendment shall be proposed to the Appropriation Bill which will
have the effect of varying the amount or altering the destination of any grant so made or of
varying the amount of any expenditure charged on the Consolidated fund of India.
Supplementary Additional or Excess Grants [Article 115] - If the amount authorised by
the Appropriation Act to be expended for a particular service is found to be insufficient for
the purposes of that year or when a need has arisen during the current financial year upon
some new service not contemplated for that year, for any additional expenditure, a
supplementary grant is made by Parliament. The procedure is the same for both the
Appropriation Act and the Supplementary grant.
Votes on Account - Votes on Credit and Exceptional Grant - Before the Appropriation
Act is passed no money is to be withdrawn from the Consolidated Fund of India. But the
Government may need money to spend before it is passed. Accordingly under Article 116(a)
the Lok Sabha can grant a Limited sum from the Consolidated Fund of India to the
Executive to spend till the Appropriation Act is passed by Parliament. Under clause (b) the
Lok Sabha can make a grant for meeting an unexpected demand upon the resources of
India when on account of the magnitude or the indefinite character of the service, the
demand cannot be stated with details ordinarily given in the Annual Financial Statement.
Under Clause (3) the Lok Sabha has the power to make exceptional grant which forms no
part of the current service of any financial year. However, it is necessary that Parliament
shall make a law for withdrawal of money from the Consolidated Fund of India for the
purpose the Lok Sabha has sanctioned the grants either by Annual Appropriation Act or
Supplementary Grant, Excess Grant, Votes on Account, Votes on Credit or Exceptional
Grant.
Q. 47 Discuss the Constitution of Supreme Court of India. Describe
the qualification, tenure and the procedure for removal of a Judge of
the Supreme Court.

Ans. The essence of a federal Constitution is the division of powers between the Central
and State Governments. The division is made by a written Constitution which is the
Supreme Law of the Land. Since language of the Constitution is not free from ambiguities
and its meaning is likely to be interpreted differently by different authorities at different
times; it is but natural that disputes might arise between the Centre and its constituent units

regarding their respective powers. Therefore, in order to maintain the supremacy of the
Constitution, there must be an independent and impartial authority to decide disputes
between the Centre and the States or the States inter se. This function can only be
entrusted to a judicial body. The Supreme Court under our Constitution is such an
arbitration. It is the final interpreter and guardian of the Constitution.
Composition of the Court : Article 124 of our Constitution provides that the Supreme Court
of India shall consist of a Chief Justice of India and 25 other judges until the number of
judges is increased.
Appointment of Judges : The Judges of the Supreme Court are appointed by the
President. The Chief Justice of the Supreme Court is appointed by the President with the
consultation of such of Judges of the Supreme Court and the High Courts as he deems
necessary for the purpose. But in appointing other Judges. The President shall always
consult the Chief Justice of India. He may consult such other Judges of the Supreme Court
and High Courts as he may deem necessary [Article 124(2)].
So under Article 124(2) the President, in appointing other Judges of the Supreme Court is
bound to consult the Chief Justice of India. But in appointing the Chief Justice of India he is
not bound to consult anyone. The word 'may' used in Article 124 makes it clear that it is not
mandatory on him to consult anyone.
The appointment and transfer of Judges Cases II - In re Presidential Reference, AIR
1999 SC 1 a nine-judge-bench of the Supreme Court has unanimously held that the
recommendation made by the Chief Justice of India on the appointment of Judges of the
Supreme Court and the High Courts without following the consultation process are not
binding on the Government. The Court also widened the scope of the Chief Justice's
consultation process upholding the government's stand on consultation process, the Court
gave its opinion on the nine questions raised by the President in his reference to the
Supreme Court, under Article 143 of the Constitution. The President had sought the
Supreme Court's clarification on the consultation process, as laid down in S.C. Advocates
case for the appointment and transfer of Judges following a controversy over the
recommendation by former Chief Justice of India M.M. Punchchi. The BJP Government did
not agree with his recommendation and referred the matter for the Supreme Court's opinion.
The Court held that the consultation process to be adopted by the Chief Justice of India
requires consultation of Plurality of Judges. The expressions "consultation with the Chief
Justice of India" in Articles 217(1) and 222(1) of the Constitution of India requires
consultation of with plurality of Judges in the formation of opinion of the Chief Justice of

India. The sole individual opinion of the Chief Justice of India does not constitute
"consultation" within the meaning of the said articles. The majority held that in regard to the
appointment of judges to the Supreme Court under Article 124(2), the Chief Justice of India
should consult "a collegium of four seniormost Judges of the Supreme Court" and made it
clear that if "two Judges give adverse opinion the Chief Justice should not send the
recommendation to the Government." The collegium must include the successor Chief
Justice of India. The opinion of the collegium must be in writing and the Chief Justice of
India should send the recommendation to the President along with his own
recommendations.
The recommendations of the collegium should be based on a consensus and unless the
opinion is in conformity with that of the Chief Justice of India, no recommendation is to be
made. In regard to the appointment of Judges of the High Courts, the Court held that the
collegium should consist of the Chief Justice of India and any two seniormost Judges of the
Supreme Court. In regard to transfer of High Court Judge the Court held that in addition to
the collegium of four Judges, the Chief Justice of India is required to consult Chief Justices
of the two High Courts (one from which the Judge is being transferred and the other
receiving him).
The Court held that the appointment of the Judges of higher courts can be challenged only
on the ground that the consultation power has not been in conformity with the guidelines
laid down in the 1993 judgement and as per opinion given in 1999 decision i.e., without
consulting four senior most Judges of the Apex Court.
The decision of the Supreme Court has struck a golden rule. It has made the consultation
process more democratic and transparent.
Qualification of a Judge : According to Article 124(3) a person shall not be qualified for
appointment as a judge of the Supreme Court, unless he is a citizen of India and
(a) has been at least five years a Judge of a High Court or two or more such courts in
succession, or
(b) has been for ten years at least as an Advocate of a High Court or two or more such
courts in succession, or
(c) is in the opinion of the President, a distinguished jurist.
REMOVAL OF A JUDGE According to Article 124(4) a judge of Supreme Court shall not be
removed from his office except by an order of the President passed after an address by
each House of Parliament supported by a majority of the total membership of that House
and by a majority of not less than two third of the members of that House present and voting

has been presented to President in the same session of such removal on the ground of
proved misbehaviour or incapacity.
Article 124(5) provides that Parliament may by law regulate the procedure of the
presentation of an address and for the investigation and proof of misbehaviour or incapacity
of a judge under clause (4).
According to Article 124(6) every person appointed to be a judge of the Supreme Court shall
before he enters upon his office make and subscribe before the President or such other
person appointed in this behalf by him on oath or affirmation according to form set out for
the purpose in the third schedule for allegiance to the Constitution and faithful performance
of duties without fear or favour.
No person who has held the office of a Judge of the Supreme Court shall plead or act in any
Court or before an authority within the territory of India.
In a historic judgement in K. Veeraswami v. Union of India, (1991) 3 SCC 655, a five
Judge bench of the Supreme Court by a majority of 4-1 has held that a Judge of the
Supreme Court and High Court can be prosecuted and convicted for criminal misconduct.
Mr. Veeraswami was the Chief Justice of the Madras High Court in 1969. In 1976 the CBI
registered a case against him charging him with amassing wealth disproportionate to his
known income and had thus committed an offence under the Prevention of Corruption act.
When he came to know these developments he proceeded on leave from March 9, 1976
and subsequently retired on April 8, 1976. The appellant filed a petition in the High Court for
quashing the FIR filed by CBI which was dismissed. He went to Supreme Court by way of
special leave petition. The Supreme Court dismissed the appeal against the Madras High
Court and ordered his prosecution. The expression "misbehaviour" in Article 124(5) includes
criminal misconduct defined in the Prevention of Corruption Act. The expression "public
servant" in Section 6(1)(c) and (2) includes Judges of the High Court and the Supreme
Court. The Judges (Inquiry) Act, 1968 enacted by Parliament under Article 124 (5) and the
Judges (Inquiry) Rules, 1969 made thereunder provide for removal of a Judge on the
ground of proved misbehaviour or inability. It does not provide for prosecution of a Judge for
offences under Section 5(1)(e) of the Prevention of Corruption Act.
Q. 48 Describe the nature and scope of Jurisdiction of Supreme Court
in respect of Inter-Government disputes.

Ans. The Supreme Court of India is a court of record as provided in Article 129 of the
Constitution. Dr. Ambedkar defined a court of record as "a court the record of which are
admitted to be of evidentiary value and they are not to be questioned when they are
produced before any court."
Article 129 further provides that the Supreme Court shall have all the powers of such a court
including the power to punish for its contempt. This power necessarily follows from that
position of the Supreme Court.
Jurisdiction - The Supreme Court of India has three kinds of jurisdiction(i) original (ii) Appellate (iii) Advisory (i) Original Jurisdiction - Article 131 deals with the
original jurisdiction of the Supreme Court. The cases of Inter-Government disputes come
under its original jurisdiction. The Supreme Court shall have, to the exclusion of any other
court, original jurisdiction in any dispute:
(a) between the Government of India and one or more states; or
(b) between the Government of India and any state or states on the one side and one or
more other states on the other; or
(c) between two or more states.
The Supreme Court in its original jurisdiction cannot entertain any suit brought by private
individual, against the Government of India. The dispute relating to the original jurisdiction of
the court must involve a question of law or fact on which the existence of legal right
depends. This means that the court has no jurisdiction in matters of political nature. A legal
right means a right-recognised by law and capable of being enforced by the power of a
state but not necessarily in a court of law.
The original jurisdiction of the Supreme Court, however, does not extend to the following
matters:
(1) The jurisdiction of the Supreme Court shall not extend to a dispute arising out of any
treaty, agreement, covenant, engagement, sanad, or other similar instrument which was
executed before the commencement of the Constitution and continues to be in operation or
which provides that the jurisdiction of the Supreme Court shall not extend to such a dispute.
(2) Under Article 264, Parliament may by law exclude the jurisdiction of the Supreme Court
in disputes with respect to the use, distribution or control of the water of any inter-state river
or river-valley.
(3) Matters referred to the Finance Commission under Article 280.

(4) Matters regarding adjustment of certain expenses between the Union and the State
under Article 290.
Q. 49 Discuss the Civil and Constitutional and Criminal appellate
Jurisdiction of Supreme Court. Also discuss regarding special leave to
appeal.

Ans. Appellate Jurisdiction - Article 132 - The Supreme Court is the highest Court of
Appeal in the country. The writ and decrees of the Court run throughout the country.
The Appellant jurisdiction of the Supreme Court can be divided into four main categories:(1) constitutional matters,
(2) civil matters,
(3) criminal matters,
(4) special leave to appeal.
(1) Appeal in Constitutional matters - Under Article 132(1) an appeal shall lie to the
Supreme Court from any judgement, decree or final order or a High Court whether in civil,
criminal or other proceedings, if the High Court certifies under Article 134-A that the case
involves a substantial question of law as to the interpretation of this Constitution. Where
such a certificate is given any party in the case may appeal to the Supreme Court on the
ground that any such question as aforesaid has been wrongly decided.
The object of the new Article 1340a is to avoid delay in granting certificate by the High Court
for appeal to the Supreme Court. Under Article 134-A the High Court can grant a certificate
for appeal to the Supreme Court under Article 132 either on its own motion or on 'oral'
application of the aggrieved party immediately after passing the judgement, decree or final
order. Prior to this, the High Court could do so only on the application of the aggrieved party.
Under Article 132(1) three conditions are necessary for the grant of certificate by the High
Court:(1) the order appealed must be against a judgment, decree or final order made by the High
Court in civil, criminal or other proceedings.
(2) the case must involve a question of law as to the interpretation of this Constitution, and
(3) if the High Court under Article 134-A certifies that the case be heard by the Supreme
Court.

(2) Appeal in Civil Cases - Article 133 provides that an appeal shall lie to the Supreme
Court from any judgment decree or final order in a civil proceeding of a High Court only if
the High Court certifies under Article 134-A:
(i) that the case involves a substantial question of law of general importance, and
(ii) that in the opinion of the High Court the said question needs to be decided by the
Supreme Court.
The Constitution (30th Amendment Act, 1972) has removed the condition of monetary value
that an appeal could go to the Supreme Court only when the amount or value in dispute
was not less than Rs.20,000. Under the amended provision of Article 133, now an appeal
could go to the Supreme Court only if the High Court certifies under Article 134-A that the
case involves the substantial question of general importance.
In Kiranmal v. Dayanoba, AIR 1983 SC 461, the High Court dismissed the appeal by one
word, order "Dismissal" against the judgement of the civil judge. The Supreme Court found
that the appellant could have raised serious question of law and facts before the High Court,
and therefore, held that it was a fit case which ought to be admitted and disposed off, on
merits. The case was remitted to the High Court for disposal on merits.
The expression, "civil proceedings" means proceedings in which a party asserts the
existence of a civil right. The civil proceeding is one in which a person seeks to remedy by
an appropriate process the alleged infringement of his civil rights against another person or
the State and which if the claim is proved, would result in the declaration express or implied,
of the right claimed and relief, such as payment of debt, damage, compensation etc. There
is no ground for restricting the expression "civil proceedings" only to those proceedings
which arise out of civil suits in proceedings which are tried as civil suits. Accordingly a
proceeding before a High Court under Article 226 for the grant of writ, constitutes a civil
proceeding.
In an appeal under Article 133, the appellant cannot be allowed to raise new grounds not
raised before the lower court.
No appeal shall lie, unless Parliament by law otherwise provides to the Supreme Court from
the judgment, decree or final order of a single judge of a High Court. This prohibition can be
removed by Parliament by law. Such a law will not be an amendment of the Constitution.
(3) Appeal in Criminal Cases - Article 134 - According to Article 134 an appeal lies to the
Supreme Court from any judgement, final order or sentence in a criminal proceeding of a
High Court in the following two ways:(a) Without a certificate of High Court, (b) with a certificate of the High Court.

(a) Without a Certificate - Article 134 (a)(b) - An appeal lies to the Supreme Court without
the certificate of the High Court if the High Court(a) has no appeal reversed an order of acquittal of an accused person and sentenced him
to death;
(b) has withdrawn for trial before itself any case from any court subordinate to its authority
and has in such trial convicted the accused person and sentenced him to death.
But if the High Court has reversed the order of conviction and has ordered the acquittal of
an accused, no appeal would lie to the Supreme Court.
(b) With a Certificate - Article 134(c) - Under clause (c) an appeal lies to the Supreme
Court if the High Court certifies under Article 134-A that it is a fit case for appeal to the
Supreme Court.
The power of the High Court to grant fitness certificate in the criminal cases is a
discretionary power, but the discretion is a judicial one and must be judicially exercised
alongwith the well established lines which govern these matters.
It is to be noted that under Article 134(1)(c), the Supreme Court is not constituted as general
court of criminal appeal. A limited criminal appellate jurisdiction is conferred upon the
Supreme Court by Article 134.
Parliament is empowered under Article 134(2) to extend the appellate jurisdiction of the
Supreme Court in criminal matters. In exercise of the powers under clause (2) of Article 134
Parliament has enacted the Supreme Court Enlargement of Criminal Appellate Jurisdiction
Act, 1970. Section 2 of the above Act provides - "Without prejudice to the powers conferred
on the Supreme Court by clause (1) of Article 134 of the Constitution, an appeal shall lie to
the Supreme Court from any judgement, final order or sentence in a criminal proceeding of
a High Court in the territory of India if the High Court(a) has on appeal reversed an order of acquittal of an accused person and sentenced him
to imprisonment for life or to imprisonment for a period of not less than ten years;
(b) has withdrawn for trial before itself any case from any court subordinate to its authority
and has in such trial convicted the accused person and sentenced him to imprisonment for
life or to imprisonment for a period of not less than ten years."
(4) Appeal by Special Leave - Under Article 136 the Supreme Court is authorised to grant
in its discretion special leave to appeal from (a) any judgement, decree, determination,
sentence or order, (b) in any case or matter, (c) passed or made by any court or tribunal in
the territory of India.

This Article vests very wide powers in the Supreme Court. The power given under this
Article is in the nature of a special residuary powers which are exercisable outside the
purview of ordinary law. Articles 132 to 135 deals with ordinary appeals to the Supreme
Court in cases where the needs of justice demand interference by the highest Court of the
land. This Article is worded in the widest possible terms. It vests in the Supreme Court a
plenary jurisdiction in the matter of entertaining and hearing appeals by granting special
leave against any kind of judgment or order made by any Court or Tribunal (except a
Military Tribunal) in any proceedings and the exercise of this power is left entirely to the
discretion of the court unfettered by any restrictions and this power cannot be curtailed by
any legislation short of amending the Article itself.
Q. 50 Discuss about Advisory Jurisdiction of the Supreme Court and
Powers of Supreme Court to review its own Judgement or order and
making rules?

Ans. Advisory Jurisdiction : Article 143 of the Constitution vests in the Supreme Court on
advisory jurisdiction. According to clause (1) of Article 143, whenever it appears to the
President that a question of law or fact has arisen or is likely to arise, which is of such
nature and of such public importance that it is expedient to obtain the opinion of Supreme
Court upon it, he may refer it to the Court for consideration. The Court then may after such
hearing as it thinks fit, report to the President its opinion thereon. Under Clause (2) of this
Article, a matter which is excluded from the Supreme Court's jurisdiction under Article 131,
may be referred to it for opinion and the court shall, after such hearing as it thinks fit, report
to the President its opinion thereon.
In clause (1) of Article 143, the use of the word, "may" indicates that it is not obligatory on
the Supreme Court to make a report on the reference made to it. The court has the
discretion in the matter and may in proper case, for good reasons, decline to express any
opinion on the question submitted to it. However, in clause (2), the word used is "shall"
which indicates that it is obligatory for the court to give its opinion on a reference made
thereunder.
The experience of a few other countries may be useful and instructive in this respect. The
U.S. Supreme Court has consistently refused to pronounce advisory opinions on abstract
legal questions. The High Court of Australia has also refused to exercise advisory opinion.

But to some extent the same purpose is achieved by permitting an Attorney General to bring
proceedings in the High Court to secure a determination of the validity of national or state
legislation after its passage by the legislature whether before or after it has entered into
force.
In the light of this foreign experience, the Supreme Court of India, has considered the
matter of its advisory jurisdiction in Re Kerala Education Bills, 1957 (AIR 1958 SC 956).
Following propositions may be called out from its observations therein:
(1) The Supreme Court may in proper case for good reasons decline to express an opinion
on a reference made to it under Article 143(1).
(2) The question validity of a bill rather than statute in force, may be referred to the court for
Article 143(1) does contemplate reference to a question of law that is "likely to arise".
(3) It is for the President to determine what question should be referred to the court. The
court cannot go beyond the reference.
Upto the year 2001, the President has made 11 references to Supreme Court. The
important among them are, Re Delhi Laws Act Case in 1951, Re Kerala Education Bills,
1958, Re Berubari Case in 1956, Keshav Singh Case in 1965, the Special Court Reference
case in 1978. In 1993 President of India has made a reference to the Supreme Court to
express its opinion in Ayodhya Temple/Mosque Case.
In a landmark judgment in Ismail Faruqui v. Union of India, (1994) 6 SCC 360 the five
judge bench of the Supreme Court comprising held that the Presidential reference seeking
the Supreme Court's opinion on whether a temple originally existed at the site where the
Babari Masjid subsequently stood was superfluous and unnecessary and opposed to
secularism and favoured one religious community and therefore, does not require to be
answered.
Power to Review its Judgement The Supreme Court can review its own judgement or order (Article 137) a Review will lie in
Supreme Court on :(1) discovery of new and important matters or evidence;
(2) mistake or error apparent on the face of record;
(3) any other sufficient reason;
In R.D. Sagar v. V.V. Nagary, AIR 1976 SC 2183 Supreme Court point out that a
judgement of the final court is final. A review of such a judgement is an exceptional
phenomenon, permitted only where a grave and glaring error is made out.

The judgement of the Supreme Court will be binding on all courts in India. The expression
"all courts, within the territory of India" clearly means courts other than the Supreme Court.
Thus the Supreme Court is not bound by its own decisions and may in proper case reverse
its previous decisions.
In the case of Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661, the Court held
that "there is nothing in the Indian Constitution which prevents the Supreme Court departing
from its previous decision if it is convinced of its error and its beneficial effect on the general
interest of public."
The Court said, "the Supreme Court should not lightly dissent from its previous decisions.
Its power of review must be exercised with due care and caution and only for advancing the
public well being in the light of surrounding circumstances of each case brought to its notice
but it is not right to confine its power within rigidly fixed limits.
Thus it is clear that the doctrine of precedent (stare decisis) is followed in India to a limited
extent.
Q. 51 Discuss the Qualification, appointment, tenure and conditions
of office of Governor of a State.

Ans. Article 153 of the Constitution provides that there shall be a Governor for each state.
Provided that nothing in this Article shall prevent the appointment of the same person as
Governor for two or more states.
According to Article 155, the Governor of a state shall be appointed by the President by
warrant under his hand and seal.
No person shall be eligible for appointment as Governor unless he is a citizen of India and
has completed the age of thirty five years (Article 156).
The Governor will hold office for a term of a 5 years. Provided that a Governor shall,
notwithstanding the expiration of his term, continue to hold office until his successor enters
upon his office. The Governor shall hold office during the pleasure of the President.
Conditions of office of the Governor.
According to Article 158, the conditions of office of the Governor will be as follows:
(1) The Governor shall 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 House 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.
(2) The Governor shall not hold any other office of profit.
(3) The Governor 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.
(4) The emoluments and allowances of the Governor shall not be diminished during his term
of office.
According to Article 159 every Governor and every 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 exercising jurisdiction in relation to the State or in his
absence the senior most judge of that court available on oath or affirmation in the
prescribed form.
Q. 52 Discuss the powers and position of the Governor of a State
under the Constitution of India.

Ans. Powers of Governor - The head of the State is known as Governor, his powers are
analogous to those of the President with certain important distinctions. The President is
elected to his office, while Governors are appointed by the President, and hold office during
his pleasure and may be dismissed from office by him.
The powers of a Governor may be classified under the following four heads :
(1) Executive (2) Legislative (3) Financial (4) Judicial.
1. Executive powers - The executive powers of the State is vested in the Governor to be
exercised by him either directly or through officers subordinate to him (Article 154). All
executive actions shall be expressed to be taken in his name. The executive power of a
State, shall extent to matter in respect to which the legislature of a State has power to make
laws. In any matter with respect to which both the Legislature of a State and Parliament
have powers to make laws i.e., if a matter mentioned in the concurrent list the executive
power of the State shall be subject to and limited by the executive powers conferred by the
Constitution or by any law made by Parliament upon the Union or authorities thereof.
(Article 162).

The Governor appoints the Chief Minister and other Ministers on the advice of Chief
Minister. The Ministers hold office during the pleasure of the Governor. The Council of
Ministers is, however, responsible to the State Legislature or to the Lower House of such
Legislature where the Legislature consists of two chambers. This means that so long the
ministers enjoy the confidence of the legislature they can not be dismissed by the Governor.
This makes the Governor a constitutional head like the President of India.
2. Legislative Power - The Governor is part and parcel of the Legislature of a State which
consists fo the Governor and the House or Houses of Legislature as the case may be
(Article 168). The Governor nominates one-sixth of the total number of the members of the
Upper House of legislative council where such council exists. The Governor makes
nominations of persons having special knowledge or experience in literature, science, art,
cooperative movement and social service (Article 171). He may nominate two members of
the Anglo Indian Community for a period of 10 years from the commencement of the
Constitution if he is of opinion that the community is not adequately represented in the State
Assembly (Article 333).
The Governor summons, prorogues the Houses of the legislature and dissolves the
Legislative Assembly (Article 174). He addresses the Houses of the legislature (Articles
175, 176). He gives assent to Bills without which no Bill can become law (Article 200). He
sends messages to the legislature (Article 176).
The Governor is empowered to make rules for the more convenient transaction of the
business of the Government of the State, and for the allocation among Ministers of the said
business in so far as it is not business with respect to which the Governor is by or under the
Constitution required to act in his discretion (Article 166). He appoints the Advocate-General
of the State (Article 165). The Chairman and members of the State Public service
Commission (Article 316), and the judges of subordinate judiciary in consultation with the
State High Court (Article 283, 284).
(3) Ordinance making power of the Governor - The most important power of the Governor is
the power to promulgate ordinances under Article 213. His power in this respect are similar
to those of the President. Ordinances are promulgate when the legislature is not in session
and the matters to which the ordinance relates, require an immediate action in this respect.
There are certain ordinances which cannot be promulgated without instructions from the
President. Such an instruction is required of a Bill containing the same provisions as the
ordinance would (i) have required the previous sanction of the President, or (ii) have been

reserved by the Governor for the consideration of the President, or (iii) have required the
assent of the President before it becomes law (Article 213).
(4) Financial powers and functions - No Money Bill or other Financial Bill can be introduced
and no demand for grants may be moved in the legislature except on the recommendation
of the Governor. The Governor causes the Annual Financial Statement, that is, the Budget
is laid before the House or Houses of legislature and is authorised also to place demands
for supplementary and additional grant if required in any year. The Governor has the
contingency fund of the state at his disposal for emergencies. Subject to limits, if any, fixed
by the legislature, the Governor can borrow money on the security of the Consolidated Fund
of the State and guarantee the loans of any other local authorities (Articles 205, 207 and
209).
(5) Power to grant Pardon etc. - The Article 161 provides that 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 of which the executive power of the state extends.
In K.M. Nanawati v. State of Bombay, AIR 1961 S.C. 99, the Supreme Court held that the
power of the Governor to suspend sentences under Article 161 is subject to the rules made
by the Supreme Court with respect to only those cases which are pending before it in
appeal. It is open to the Governor to grant a full pardon at any time even during the
pendency of the case in the Supreme Court, but the Governor can not exercise his power of
suspension of the sentence for the period when the Supreme Court is seized of the case.
Position of Governor - Like the President of India the Governor is also a mere Constitutional
head. Though all the above mentioned powers are vested in him but he is required to
exercise his powers with the aid and advice of his Council of Ministers.
In Ram Jawaya Kapoor v. State of Punjab, AIR 1955 SC 549, the Supreme Court has
held that the President and the Governor in India are only Constitutional heads. The real
executive power is exercised by the Council of Ministers. The President and the Governor
are required to exercise their powers on the advice of the Council of Ministers.
In Shamsher Singh v. State of Punjab, AIR 1974 SC 2193, the Supreme Court held that
wherever the Constitution requires the 'satisfaction' of the Governor, the satisfaction is the
satisfaction of the Council of Ministers and not the personal satisfaction of the Governor. He
is merely a Constitutional head. Accordingly, it was held that the removal of the members of
the subordinate judiciary by the concerned Minister was valid.

Under Article 155 the Governor holds office during the pleasure of the President and
continues to hold this office at the discretion of the President. In this respect he occupies
the position of a representative of the union in the state. However, Article 163(1) states that
there shall be a Council of Ministers with Chief Minister at the head to aid and advise the
Governor in the exercise of his functions or any of them in his discretion. Article 239 (2) also
states that where a Governor is appointed an administrator, he shall exercise his functions
as such administrator independently of his Council of Ministers. Besides a reference may be
made to Articles 356 and 200. In making reports to the union the Governor will be justified in
exercising his discretion even against the aid and advice of the Council of Ministers. The
reason is that the failure of the Constitutional machinery may be because of the conduct of
the Council of Ministers. Similarly Article 200 indicates another instance where the Governor
may act in reserving a Bill for consideration of the President irrespective of the advice of
Council of Ministers in such matter the Governor has to discharge his duties to the last of
his judgment and pursue such cause which is not detrimental to the state.
As mentioned above, in certain matters the Governor is required by or under this
constitution to act in his discretion. In this respect, Governor may be regarded as a link
between the union and the states thereby providing an opportunity to the union to have
some kind of control over the states. As such, the Governor may be regarded as a
representative of the union in the states.
Q. 53 Discuss the relationship of Governor of the State with the
Council of Ministers in that State.
Or
Is Governor bound to act with the advice of his minister ? Does the
Constitution confer discretionary power upon the Governor and if so,
what are such powers?
Ans. The Governor is a constitutional head in a State like the President in the Centre. The
executive power of the State is vested in him and such power is to be exercised by him
directly or through officers subordinate to him in accordance with the Constitution (Article
114). There is a Council of Ministers with the Chief Minister at the head to aid and advise
the Governor in the exercise of his functions except in matters where the Governor is by, or
under the Constitution, required to act in his discretion. The Governor appoints the Chief

Minister and other Ministers are appointed by the Governor on the advice of the Chief
Minister. All Ministers hold office during the pleasure of the Governor. The Council of
Ministers is collectively responsible to the Legislative Assembly of the State and may be
removed from office by an adverse vote therein.
Although the Chief Minister is appointed by the Governor but the Governor has no
discretion in this matter. He is bound to appoint the leader of the majority party as the Chief
Minister. It is only when no party secures majority in the legislature the Governor can
exercise his discretion in the selection of the Chief Minister.
The ministers cannot be dismissed by him at his discretion. The ministry is responsible to
the Legislative Assembly and therefore, so long as they enjoy the confidence of the majority
they cannot be dismissed. The Council of Ministers act as a team and responsible to the
legislature and not to the Governor. All decisions are taken by the Council of Ministers.
These decisions are conveyed to the Governor by the Prime Minister.
All these provisions make it clear that the Governor is a mere constitutional head and acts
through a body responsible to the people. Normally, the Governor is bound to act with the
advice of his Council of Ministers in all matters except where he is required to act in his
discretion. In Sunil Kumar v. Government of West Bengal, AIR 1950 Cal. 274, the
Calcutta High Court observed. "The Governor under the present Constitution cannot act
except in accordance with the advice of his Ministers". The only functions which the
Governor may be called upon in certain circumstances to exercise in his personal discretion
are the following:
(1) Appointment of the Chief Minister.
(2) Dismissal of a Ministry.
(3) Dissolution of the Legislative Assembly.
(4) Under paras 9 and 18 of 6th Schedule in respect of tribal areas in Assam.
(5) In advising the President to impose President Rule in States.
(1) Appointment of the Chief Minister : In normal circumstances he has no discretion in this
matter. He is bound to appoint the leader of the majority party as the Chief Minister. But
when no party secures a clear majority in the House the Governor may exercise his
discretion in this matter.
(2) Dismissal of a Minister : The Ministers hold office during the pleasure of the Governor.
This means that a Ministry can be dismissed by the Governor. But so long as a ministry
enjoys the support of the majority in the legislature the Governor can not dismiss it.
However, if a ministry loses the majority support in the House or a non-confidence motion is

passed against it, the Governor may dismiss such a ministry. Whether a Ministry has lost
the majority or not must be decided on the floor of the House.
(3) Dismissal of Legislative Assembly : Normally the Assembly will be dissolved by the
Governor on the advice of the cabinet. But when the Chief Minister has lost the majority in
the House and advises the Governor to dissolve the Assembly the Governor may refuse to
do so. He may take his own decision in this matter.
(4) Under para 16(2) of 6th Schedule in respect of tribal areas of Assam : In this respect the
Constitution expressly provides that in certain circumstances the Governor might act in his
discretion. This is confined to tribal areas of Assam only.
(5) In advising the President to impose President rule in States : In this matter the Governor
is not required to consult his cabinet. The Governor takes his own decision whether there
are circumstances justifying that Government of the State can not be carried on in
accordance with the provisions of the Constitution he may then report the matter to the
President for appropriate actions under the Constitution.
Q. 54 Describe the composition of :
(A) Legislative Assembly (Vidhan Sabha)
(B) Legislative Council (Vidhan Parishad)

Ans. (1) Legislative Council : The legislative council is the upper House of State legislature.
The total number of members of legislative council shall not exceed one third of the total
number of members of legislative assembly provided that total numbers in legislative
council of the State shall in no case be less than 40.
Until the Parliament by law otherwise provides composition of legislative council of the State
shall be as provided in Clause (3) of Article 17. The total number of members of the
legislative Council of the State will be as follow:(a) as nearly as may be, one-third shall be elected by electorates consisting to the members
of Municipalities, District Boards and such as local authorities in the state as Parliament
may by law specify;
(b) as nearly as may be, one-twelfth shall be elected by electorates consisting of persons
residing in the state who have been for at least three years' graduates of any university in
the territory of India or have been for at least three years in possession of qualification

prescribed by or under any law made by Parliament to that of Graduate of any such
university;
(c) as nearly as may be, one-twelfth shall be elected by electorates consisting of persons
who have been at least three years engaged in teaching in such educational institutions
within the state, not lower in standard than that of a secondary school, as may be,
prescribed by or under any law made by Parliament;
(d) as nearly as may be, one-third shall be elected by the members of the legislative
Assembly of the state from amongst persons who are not members of the Assembly;
(e) The remainder shall be nominated by the Governor in accordance with the provisions of
clause (5).
The members to be elected under sub-clauses (a), (b) and (c) of clause (3) shall be chosen
in such territorial constituencies as may be prescribed by or under any law made by
Parliament, and the elections under the said sub-clauses and under sub-clause (d) of the
said clause, shall be held in accordance with the system of proportional representation by
means of the single transferable vote.
The members to be nominated by the Governor, under sub-clause (e) of clause (3) shall
consist of persons having special knowledge or practical experience in respect of such
matters as the following namely - literature, science, art cooperative movement and social
service.
Duration of Legislative Council The Legislative Council is not subject to dissolution but as
nearly as one- third of its members shall retire at the end of every second year. Like Council
of states, it is also a permanent House.
(2) Legislative Assembly (Vidhan Sabha) :
The Legislative Assembly in a State is popular House. The minimum number of seats of the
Legislative Assembly is fixed at 60 and the maximum number is fixed at 500. The members
of Legislative Assembly are chosen directly by the people on the basis of adult franchise
from territorial constituencies in the State [Article 170(1)]. The representation in the House
is on basis of population in respect of each territorial constituency in the State.
The 42nd Amendment had amended Article 170 and added a new Explanation, which
provided that the number of seats in State Assemblies would be determined on the basis of
the 1971 census and would be frozen till the year 2000. The Constitution (84th Amendment)
Act, 2001 has substituted for the figures "2000" the figures "2026". The expression
population for this purpose means the population as determined on the basis of 1991

census. The redetermination of the constituencies, on the basis of new census undertaken
after the year 2026 will take effect on dates fixed by the President.
In the Legislative Assembly of every State, seats will be reserved for the Scheduled Tribes
and Scheduled Castes on the basis of population [Article 332].
It's Tenure - The normal tenure of the Legislative Assembly of every State is of five-years
but it may be dissolved earlier by the Governor [Article 172]. During the proclamation of
emergency the life of the Assembly may be extended by an Act of Parliament for a period of
one year at a time but in no case beyond a period of six months after the proclamation has
ceased to operate [Article 172].
Qualification of Membership A person to be qualified to be chosen as a member in the
State Legislature(a) must be a citizen of India, and makes and subscribes before some persons authorised
by the Election Commission an oath or affirmation prescribed in the Third Schedule;
(b) must not be less than 25 years of age in the case of the Legislative Assembly and not
less than 30 years in case of the Legislative Council;
(c) must possess much other qualification as may be prescribed by Parliament by law
[Article 173].
Disqualification of Membership A person is disqualified for being chosen as a member of
the Legislature of a State (a) if he holds any office of profit under the Central or State Government, or
(b) if he is of unsound mind,
(c) if he is an undischarged insolvent,
(d) 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 or adherence of a foreign State.
(e) if he is so disqualified by or under any law of Parliament [Article 191].
Article 19 deals with the disqualifications incurred by a member after he has been elected
as member. It says that "no one can be a member of both the Houses of the Legislature of a
State or a member of the Legislature of two or more States at the same time". If a person is
chosen a member of the Legislature of two or more States then at the expiry of the specified
period under rules made by President his seat in the Legislature shall fall vacant unless he
resigns his seat in all but one of the States. If a member of State Legislature absents
himself, without the permission of the House from all meetings for a period of sixty days
(excluding the period for which the House is prorogued or is adjourned for more than four

consecutive days) the House may declare his seat vacant [Article 190(3), (4)]. If a member
becomes disqualified under Cl. (1) of Article 191 his seat shall become vacant.
Q. 55 Describe the legislative procedure in State Legislature.

Ans. (i) Procedure for Ordinary Bills : Article 196 of the Constitution provides provision as to
introduction and passing of ordinary bills. It lays down:
(1) Subject to the provisions of Article 198 and 207 with respect to Money Bills and other
financial Bills, a Bill may originate in either House of State Legislature having Legislative
Council.
(2) Subject to the provisions of Article 1987 and 198 a Bill shall not be deemed to have been
passed by the Houses of the legislature of a state having a Legislative Council unless it has
been agreed to by both Houses, either without amendment or with such amendments only
as are agreed to by both Houses.
According to Article 197(1) if a Bill has been passed by the Legislative Assembly of a state
having a Legislative Council and transmitted to the Legislative Council:
(a) the Bill is rejected by the Council; or
(b) more than three months elapsed from the date on which the Bill is laid before the
Council without the Bill being passed by it; or
(c) the Bill is passed by the Council with amendments to which the legislative Assembly
does not agree;
the Legislative Assembly may, subject to the rules regulating its procedure, pass the Bill
again in the same or in any subsequent session with or without such amendments, if any,
as have been made, suggested or agreed to by the Legislative Council and then transmit
the Bill as so passed to the Legislative Council.
Article 197(2) provides that if a Bill has been so passed for the second time by the
Legislative Assembly and transmitted to the Legislative Council(a) the Bill is rejected by the council; or
(b) more than one month elapses from the date on which the Bill is laid before the Council
without the Bill being passed by it; or
(c) the Bill is passed by the Council with amendments to which the Legislative Assembly
does not agree;

the Bill shall be deemed to have been passed by the Houses of the legislature of the state
in the form in which it was passed by the Legislative Assembly for the second time with and
amendments, if any, as has been made or suggested by the Legislative Council and agreed
to by the Legislative Assembly.
Money Bills : A Money Bill must originate in the Lower Houses of the State Legislature
(Legislative Assembly). A Money Bill cannot originate in the Legislative Council. After a
Money Bill has been passed by the Legislative Assembly, it shall be transmitted to the
Legislative Council for its recommendations. The Legislative Council must return the Bill to
the Legislative Assembly with its recommendations within a period of 14 days from the date
of its receipt of the Bill. The Legislative Assembly may either accept or reject all or any of
the recommendations of the Legislative Council. If the Legislative Assembly accept any of
the recommendations of the Legislative Council, the Money Bill shall be deemed to have
been passed by both Houses, with the amendments recommended by the Legislative
Council and accepted by the Legislative Assembly. If the Legislative Assembly rejects all the
recommendations of the Council the Money Bill shall be deemed to have been passed by
both Houses in the form in which it was passed by the Legislative Assembly. But if a Bill is
not returned by the Council within 14 days, it shall be deemed to have been passed by both
Houses at the expiration of such period in the form in which it was originally passed by the
Legislative Assembly [Articles 198 and 199].
Assent to Bills (Article 200) - When a Bill has been passed by both the Houses the Bill is
sent to Governor for his assent. He may declare either that: (a) he assents to the Bill, (b) he
withholds his assent, (c) he reserves the Bill for the consideration of the President. At least
in one case, where a Bill is likely to affect the powers of the High Court of a State, the
Governor must reserve it for the consideration of the President, (d) he may return the Bill to
the Houses for reconsideration. In the last case when a Bill, returned by the Governor for
the reconsideration of the Houses, is passed again by the Houses with or without
amendments and presented to the Governor for assent, the Governor shall not withhold
assent second time. This means that he cannot reject the Bill. He must give his assent or
reserve the Bill for the consideration of the President.
Bills Reserved for President's consideration - (Article 201) - Under Article 201 the Governor
may reserve certain Bills passed by the State Legislature for the consideration of the
President. When a Bill is reserved by a Governor for the consideration of the President, the
President may take one of the three courses1. He assents to the Bill,

2. He withholds his assent to the Bill, or


3. He may, where the Bill is not a Money Bill, direct the Governor to return the Bill to the
Houses of the State Legislature together his suggestions as referred to in the first proviso to
Article 200. It shall be the duty of the Legislature to reconsider the Bill within a period of 6
months. If it is again passed by the Houses it shall be presented to the President for his
consideration.
Procedure in financial matters (Articles 202 to 207) - In financial matters the procedure in
the State is similar to that in Union. The procedure for the submission of the Annual
Financial Statement, or the passing of the 'Annual Appropriation Act', 'Votes of Credit',
'Votes on Accounts' and Supplementary Grants, etc., is analogous to that in the Union under
Article 112.
General Rules of Procedure - As in the case of the Centre, a House of the Legislature of a
State has right to make rules for regulating its procedure and conduct of his business.
These rules are subject to the provisions of the Constitution [Article 208]. The validity of any
proceedings in the Legislature shall not be called in question on the grounds of alleged
irregularity of the Procedure [Article 212].
Q. 56 Discuss about the Constitution of the High Court. How are the
judges appointed and what are their qualifications? In what manner
they may be removed from the office.

Ans. Article 214 says that there shall be a High Court in each State. However, under Article
231(1) Parliament can establish by law a common High Court for two or more States or for
two or more States and a Union Territory. The High Court stands at the head of the Judiciary
in the State.
Constitution of High Courts - Every High Court consists of a Chief Justice and such other
Judges as the President may, from time to time, deem it necessary to appoint (Article 216).
Thus the Constitution does not fix any maximum number of Judges of a High Court.
Appointment of Judges - Article 217 provides that every judge of a High Court shall be
appointed by the President. The President appoints the Chief Justice of a High Court after
consultation with the Chief Justice of India and the Governor of the State concerned. In
case of appointment of a Judge other than the Chief Justice he may consult even the Chief
Justice of the High Court concerned.

In S.P. Gupta & others v. Union of India, AIR 1982 SC 149, popularly known as the
Judges Transfer case the question was whether in appointing the additional Judges of the
High Courts the President was bound by the advice of the Chief Justice of India. Under
Article 217 the President is obliged to consult the three functionaries, the Chief Justice of
India, the Chief Justice of High Court and the Governor of the State.
In this context the majority held that the opinion of the C.J. of India had no primacy over the
opinion of the Chief Justice of the High Court under Article 217. According to Bhagwati, J.,
all the three functionaries, Chief Justice of High Court, Chief Justice of India, and the
Governor of a State are given equal importance in the consultation process and there is no
superiority over the opinion of one over that of another.
In a historic judgement, S.C. Advocate-On-Record v. Union of India, (1993) 4 SCC 441 a
nine judge Bench of the Supreme Court by a 7:2 majority overruled the Judges Transfer
case and held that in matter of appointment and transfer of judges greatest significance
should be attached to the view of the Chief Justice of India. The majority gave primacy to
the opinion of the Chief Justice of India formed in consultation with two senior most judges
of the Supreme Court in regard to appointment and their transfers. The Court held that the
process of appointment must be initiated by the Chief Justice of the High Court. In the event
of conflicting opinion by the constitutional functionaries, the opinion of the judiciary
symbolised by the view of the Chief Justice of India, formed after consulting some of his
colleagues has primacy.
In re Presidential Reference, AIR 1999 SC 1, known as 'Appointment and Transfer of
Judges case' a nine-member-Bench of the Supreme Court has unanimously held that
recommendations made by the Chief Justice of India on the appointment of judges of the
Supreme Court and High Courts without following the consultation process are not binding
on the Government.
The Court has widened the scope of Chief Justice of India's consultation and held that the
consultation process to be adopted by the CJI under Articles 217(1) and 222(1) requires
consultation of plurality of judges. The sole opinion of CJI does not constitute consultation
process. The Court held "recommendations made by the CJI without complying with the
norms and guidelines regarding the consultation process are not binding on the
Government."
In regard to the appointment of Judges of the High Courts, the Court held that the CJI
should consult "a collegium of two senior most judges of the Supreme Court."

Transfer of a judge from one High Court to another - Article 222(1) empowers the President
after consultation with the Chief Justice of India to transfer a Judge from one High Court to
any other High Court. Clause (2) makes provisions for the grant of compensatory allowance
to a Judge who goes on transfer to another High Court.
In Union of India v. Sankalchand, AIR 1977 SC 2328 the constitutionality of a notification
issued by the President by which Justice Sankalchand Sheth of the Gujarat High Court was
transferred to the High Court of Andhra Pradesh, was challenged on the ground that the
order was passed without the consent of the Judge and against public interest and without
effective consultation of the Chief Justice of India. The Supreme Court held that a Judge of
a High Court could be transferred under Article 222(1) without his consent. If consent was
imported in Article 222 so as to make condition precedent to transfer a Judge from one High
Court to another than a Judge by withholding consent could render the power contained in
Article 222 wholly ineffective and nugatory. The power to transfer a High Court Judge is
conferred by the Constitution in public interest and not for the purpose of providing the
Executive with a weapon to punish a Judge who does not touch its line or who, for some
reason or the other, has fallen from its grace.
Qualifications - A person to be qualified for appointment as Judge of a High Court.(a) must be a citizen of India,
(b) must have held a judicial office for at least ten years, in the territory of India,
(c) must have been an advocate of High Court for at least ten years. [Art 217(1) and (2)].
Term and removal of Judges - A Judge of the High Court shall hold office until he attains the
age of 62 years. If a question arises as to the age of a Judge of a High Court, then it shall
be decided by the President after consultation with the Chief Justice of India and the
decision of the President shall be final. [Article 217(3)]. A Judge may, however, be removed
from the office by the President in the same manner and on the same grounds as a Judge
of the Supreme Court. The office of a Judge falls vacant by his being appointed by
President to be Judge of the Supreme Court or being transferred to any other High Court. A
Judge may also resign his office by writing to the President. [Article 220].
Q. 57 Describe the jurisdiction and powers of the High Courts.

Ans. Jurisdiction of High Courts


The Constitution does not make any detailed provisions regarding the general jurisdiction of
the High Courts. Under Article 225, the jurisdiction of the High Courts, the law administered

by them, the respective powers of their Judges in relation to the administration of justice by
the Court and their rule making power, all are to be the same as were enjoyed by them
immediately before the Commencement of the Constitution. The Constitution thus maintains
the status quo existing on the eve of the commencement of the Constitution in relation to
the jurisdiction and powers of the High Courts. The status quo is, however, subject to the
provisions of the Constitution and to any law made by the appropriate legislature in
pursuance of its powers under the Constitution.
The proviso to Article 225 lays down that any restriction on the original jurisdiction of a High
Court regarding a revenue matter, or an act ordered or done in revenue collection, existing
prior to the commencement of the Constitution, will no longer exist.
The second important change affected by the Constitution in the jurisdiction of High Courts
is through the all important Article 226 which empowers the High Courts to issue the writs.
This is an important power to enforce the rights of the people, to administer justice and to
review administrative action.
According to Article 226(1) of the Constitution, it may be issued to any person, authority
including in appropriate cases, any Government within those territories, directions, orders or
writs like habeas corpus, mandamus, Certiorari, Quo-Warranto, prohibition or any of them
for the enforcement of fundamental rights conferred on the people in Part III of the
Constitution.
It may be pointed out that remedy under Article 226 is discretionary and the Court may
refuse to grant the remedy under Article 226, if adequate remedy is available to the
petitioner. But in Himmat Lal v. State of U.P., AIR 1954 SC 403, however, the Supreme
Court has held that the existence of an alternate remedy is no bar to the exercise of writ
jurisdiction where there is violation of fundamental rights.
Power of Superintendence - According to Article 227, every High Court shall have
superintendence over all courts and tribunals throughout the territories of India in relation to
which it exercises jurisdiction, except any court or tribunal constituted by or under any law
relating to the armed forces.
The power of superintendence under Article 227 is of an administrative as well as judicial
nature. This power being an extra-ordinary one is to be sparingly exercised and in
appropriate cases to keep the subordinate courts within the bounds of their authority and
jurisdiction and not for correcting mere errors.
Control over Subordinate Courts - Article 235 vests in High Court the control over the
subordinate courts. While Article 227 deals with the official acts of the persons occupying

those courts, Article 235 deals with subordinate judicial officers themselves in relation to
their discipline posting and promotions. Further Article 227 deals with both the courts and
tribunals but Article 235 deals with the controlling power of the High Court only with the
courts not with tribunals.
Court of Record - According to Article 215, every High Court shall be a court of record and
shall have power to punish for its contempt by itself.
General jurisdiction under other statutes - High Courts have original and appellate
jurisdiction in civil and criminal matters as conferred by other statutes and their letter
patents. Such powers have been safeguarded by Article 225 of the Constitution in favour of
the High Courts.
Q. 58 What do you understand by Union Territories?

Ans. The Union Territories are formed by centrally administered areas. Article 239 of
Constitution of India makes the specific provisions for administration of Union Territories.
Article 239 provides that a Union Territory is to be administered by the President acting to
such extent as he thinks fit through an administrator to be appointed by him with such
designation as he may specify.
Article 239 (2) says A Governor of a State may also be appointed by him as the
administrator of an adjoining Union Territory. Where a Governor is so appointed as
administrator for the Union Territory, he shall exercise his functions as such administrator
independently of his Council of Ministers.
Article 239-A of Constitution empowers the Parliament to create by law for Union Territory of
Pondicherry, a legislature or a Council of Ministers. Such legislature may be an elected
nominated or partly nominated partly elected. Under Article 239-B administrator of Union
Territory of Pondicherry is empowered to promulgate ordinances when the legislature in not
in session. However no such ordinance can be promulgated without prior permission of
President. The Constitution (69th Amendment) Act 1992, had added two new articles i.e.
Article 23-AA and Article 239-AB to the Constitution which gave special status to the Union
Territory of Delhi. Article 239-AA provides that the Union Territory of Delhi shall now be
called as "National Capital Territory of Delhi" and the Administrator appointed under Article
239 shall be designated as Lieutenant Governor.
Article 239-AB provides that if the President of India, on the report of Lieutenant-Governor
or otherwise in satisfied.

(a) that a situation has arisen in which the administration of Nation Capital Territory can not
be carried or in accordance with provisions of Article 239-AA or any low made in pursuance
of that article or
(b) that for the proper administrator of National Capital Territory is necessary or expedient to
do so.
The President may by order suspend the operation of any provision of Article 239-AA or all
or any of the provisions if any made in pursuance of that article for such period and subject
to such condition as may be specified in such incidental and consequential provisions as
may appear to him to necessary and expedient for administering the National Capital
Territory in accordance with provisions of Article 239 and 239-AA.
According to Article 240, the President is empowered to make regulations for peace,
progress and good government of the Union Territory of Andaman & Nicobar Island,
Lakshadweep, Dadra & Nagar Haveli, Daman & Diu and Pondicherry.
Article 241 empowers Parliament by law to Constitute a High Court for Union Territory or
declare any court in any such territory to be a High Court for all or any of the purposes of
the Constitution.
Q. 59 Discuss the composition, reservation, duration, power and
responsibilities of Panchayats according to provisions of the
Constitution.

Ans. The Constitution (73rd Amendment) Act, 1992 added a new Part IX consisting of 16
Articles and the Eleventh Schedule to the Constitution. The 73rd Amendment Act envisages
the Gram Sabha as the foundation of the Panchayati Raj System to perform functions and
powers entrusted to it by the State legislatures.
Gram Sabha - Article 243A provides that the Gram Sabha may exercise such powers and
perform such functions at the village level as the legislature of a State may by law provide.
The 73rd amendment thus envisages the Gram Sabha as the foundation of Panchayati Raj
System. 'Gram Sabha' means a body consisting of persons registered in the electoral rolls
relating to a village comprised within the area of Panchayat at the village level.
Constitution of Panchayats - Article 243B visualises a three-tier Panchayati Raj System. It
provides that in every Stat there shall be constituted Panchayats at the village, intermediate

and district levels. Small States having a population not exceeding twenty lakhs have been
given an option not to constitute the Panchayats at the intermediate level.
Composition of Panchayats - Article 243C provides that, subject to the provisions of this part
the Legislature of a State may by law make provisions with respect to the composition of
Panchayats. However, the ratio between the population of the territorial area of a Panchayat
at any level and the number of seats in such Panchayats to be filled by election shall, so far
as practicable, be the same throughout the State.
All the seats in a Panchayat shall be filled by the persons chosen by direct election from
territorial constituencies in the Panchayat area. For this purpose each Panchayat's area
shall be divided into territorial constituencies in such manner that the ratio between the
population of each constituencies and the number of seats allotted to it, so far as
practicable, be the same throughout the Panchayat area (Clause 2).
The legislature of a State may by law provide for representation of following persons in
panchayats (a) the Chairpersons (Chairman) of the Panchayats at the village level, in the Panchayats at
the intermediate level or in the case of a State not having Panchayats at the intermediate
level, in the Panchayats in the district level;
(b) the Chairpersons of the Panchayats at the intermediate level, in the Panchayats at the
district level;
(c) the members of the Lok Sabha and the Legislative Assembly of the State representing
constituencies which comprise wholly or partly a Panchayat area at the level other than the
village level, in such Panchayats;
(d) the members of the Rajya Sabha and Legislative Council of the State where they are
registered as electors;
(i) a Panchayat area at the intermediate level, in Panchayat at the intermediate level;
(ii) a Panchayat area at the district level, in Panchayat at the district level.
The Chairpersons of a Panchayat and other members of a Panchayat whether or not
chosen by direct election from territorial constituencies in the Panchayat area shall have the
right to vote in the meetings of Panchayat (Article 243(4).
The Chairperson of a Panchayat at the village level shall be elected in such a manner as
the legislature of a State may by law, provide. The Chairpersons of a Panchayat at the
intermediate level or district level shall be elected by, and amongst, the elected members
thereof (Article 243(5).

Disqualifications for membership. - A person shall be disqualified for being chosen as, and
for being a member or Panchayats (a) if he is so disqualified by or under any law for the time being in force for the purposes of
elections to the legislature of the State concerned;
(b) if he is so disqualified by or under any law made by the legislature of the State.
But no person shall be qualified on the ground that he is less than 25 years of age under
clause (a), if he has attained the age of 21 years.
If any question arises as to whether a member of a Panchayat has become subject to any
of the qualifications mentioned in clause (1) the question shall be referred for the decision of
such authority and in such manner as the legislature of a State may, by law, provide Cl.(2).
Reservation of seats in Panchayats - Article 243D provides that in every Panchayats seats
shall be reserved for the Scheduled Castes and Scheduled Tribes. The number of seats so
reserved shall be, as nearly as may be, in the same proportion to the total number of seats
to be filled by direct election in that Panchayat as the population of the SC's and ST's in that
Panchayat area bears to the total population of that area and such seats may be allotted by
rotation to different Constituencies in a Panchayat.
Out of total number of seats reserved under clause (1) not less than 1/3 seats shall be
reserved for women belonging to the SC's and ST's [Clause (2)]. Out of total number of
seats to be filled by direct election in every Panchayat not less than 1/3 (including the
number of seats reserved for SC's and ST's women) seats shall be reserved for women.
Such seats may be allotted by rotation to different Constituencies in a Panchayat [Clause
(3)].
Duration of Panchayats - According to Article 243E every Panchayat, unless sooner
dissolved under any law for the time being in force, shall continue for five years from the
date appointed for its first meeting. No amendment of any law in force shall have effect of
causing dissolution of a Panchayat at any level which is functioning before such
amendment till the expiration of its normal period of five years [Clause (2)].
An election to constitute a Panchayat must be completed (a) before the expiry of its duration;
(b) before the expiration of a period of six months from the date of its dissolution [Clause
(3)].
Powers, authority and responsibility of Panchayat - Article 243G, provides that subject to the
provisions of this Constitution the legislature of a State may, by law, endow the Panchayats
with such powers and authority as may be necessary to enable them to function as an

institution of self government. Such law may contain provisions for the devolution of powers
and responsibilities upon Panchayats subject to such conditions as may be specified
therein, with respect to(a) the preparation of plans for economic development and social justice;
(b) the implementation of schemes for social development and social justice as may be
entrusted to them including those in relation to the matters listed in the Eleventh Schedule.
Powers to impose taxes and funds of Panchayats - Article 243H empowers a State
Legislature to make by law provision for imposing taxes etc. by the Panchayats. Such a law(a) authorize a Panchayat to levy, collect and appropriate such taxes, duties, tolls and fees
in accordance with such procedure and subject to such limits;
(b) assign to a Panchayat such taxes, duties, tolls and fees levied and collected by the
State Government for such purposes and subject to such conditions and limits;
(c) provide for making such grants-in-aid to the Panchayats from the Consolidated Fund for
the State; and
(d) provide for constitution of such funds for crediting all moneys received, by or on behalf of
the Panchayats and also for the withdrawal of such money therefrom.
Q. 60 Discuss the Composition, Reservation, Duration, Powers and
Responsibilities of Municipalities according to the provisions of
Constitution.

Ans. Part IX-A was added to the Constitution by the Constitution (73rd Amendment) Act,
1992.
Constitution of municipalities - Article 243Q provides for the establishment of the following
three types of municipal corporations for urban areas(a) a Nagar Panchayat for a transitional area, that is to say, an area is transition from a rural
area to a urban area,
(b) a Municipal council for smaller urban area, and
(c) a Municipal corporation for a larger urban area.
Composition of Municipalities - Article 243R provides that save as provided in clause (2), all
the seats in a municipality shall be filled by persons chosen by direct elections from
territorial constituencies in the Municipal area. For this purpose each Municipal area shall
be divided into territorial constituencies to be known as Wards.

The legislature of a State may by law, provide for the representation in a Municipality of the
following:(i) persons having special knowledge or experience to Municipal administration;
(ii) the members of the Lok Sabha and the Legislature Assembly of the State representing
constituencies which comprise wholly or partly the Municipal area;
(iii) the members of the Rajya Sabha and the Legislative Council of the State registered as
electors within the Municipal area;
(iv) the Chairpersons of the committees constituted under clause (5) of Article 243S.
However, the persons referred to in paragraph (i) shall not have the right to vote in the
meeting of the Municipality.
The legislature will also by law provide the manner of election of the chairpersons of a
Municipality.
A "Municipal area" under Article 243-R means the territorial area of a Municipality as is
notified by the Governor.
Reservation of seats in Municipalities - Article 243-T provides for the reservation of seats for
the members of Scheduled Castes and Scheduled Tribes in every Municipality. The number
of seats reserved for them shall be as nearly as may be, in same proportion to the total
number of seats to be filled by directed election in that Municipality as the population of the
SC's and ST's in the Municipal area bears to the total population of that area and such
seats may be allotted by rotation to different constituencies in a Municipality.
Out of total number of seats reserved under clause (1), 1/3 seats shall be reserved for
women belonging to the SC's and ST's as the case may be. Out of total number of seats
(including the number of seats reserved for women belonging to the SC's and ST's), to be
filled by direct election in every Municipality 1/3 seats shall be reserved for women. Such
seats may be allotted by rotation to different constituencies in a Municipality [Clause (2) and
(3)]. The office of Chairpersons in the Municipalities shall be reserved for the SC's, ST's and
women in such manner as the legislature of a State may, by law, provide [Article 243T (4)].
Reservation of seats for Backward class of citizens - Under clause (6) the legislature is
empowered to make provisions for reservations of seats in any Municipality of office
Chairpersons in the Municipalities in favour of backward class of citizens.
All kinds of reservation of seats shall cease to have effect on the expiration of the period
specified in Article 334 that is (upto 50 years from the commencement of the Constitution).

Duration of Municipalities - Article 243U provides that every Municipality, unless sooner
dissolved under any law for the time being in force, shall continue for five years from the
date appointed for its first meeting.
An election to constitute a Municipality shall be completed before the expiration of its
duration and before the expiration of a period of six months from the date of its dissolution
in case it had been dissolved earlier. But where the reminder of the period for which the
dissolved Municipality would have continued is less than six months, it shall not be
necessary to hold elections under this clause for constituting the Municipality for such
period. [Clause (3)].
Disqualifications for Membership - According to Article 243V a person shall be disqualified
for being chosen as, and for being, a member of a Municipality(a) if he is so disqualified by or under any law for the time being in force for the purposes of
elections to the Legislature of the State concerned;
(b) if he is so disqualified by or under any law made by the Legislature of the State.
However, a person shall not be disqualified on the ground that he is less than 25 years of
age, if he has attained the age of 21 years. Thus a person having attained the age of 21
years is eligible for being chosen as a member of a Municipality.
Powers, authority and responsibilities of Municipalities - Under Article 243W, the Legislature
of a State, subject to the provisions of this Constitution, is empowered by law to endow(a) the Municipalities with such powers and authority as may be necessary to enable them
to function as institution of Self-government and such law may contain provisions for the
devolution of powers and responsibilities upon Municipalities, subject to such conditions as
may be specified therein, with respect to(i) the preparation of plans for economic development and social justice;
(ii) the performance of functions and the implementation of schemes as may be entrusted to
them including those in relation to the matters listed in the Twelfth Schedule;
(b) the committees with such powers and authority as may be necessary to enable them to
carry out the responsibilities conferred upon them including those in relation to the matters
listed in the Twelfth Schedule.
Q. 61 Discuss how the legislative powers between the Union and the
States are distributed under the Constitution? What do you mean by
(1) Union list (2) State List and (3) Concurrent List?

Ans. The distribution of powers is an essential feature of federalism. The object for which a
federal State is formed involves a division of authority between the National Government
and the separate States.....
The Constitution of India makes two-fold distribution of legislative powers(1) with respect to territory;
(2) with respect to subject-matter.
Territorial jurisdiction - Article 245(1) provides that subject to the provisions of this
Constitution, Parliament may make laws for the whole or any part of the territory of India.
According to clause (2) of Article 245 a law made by Parliament shall not be deemed to be
invalid on the ground that it has extra-territorial operation, i.e., takes effect outside the
territory of India. In A.H. Wadia v. Income-tax Commissioner, Bombay, AIR 1949 FC 18,
the Supreme Court held : "In the case of a sovereign Legislature question of extraterritoriality of any enactment can never be raised in the municipal court as a ground for
challenging its validity.
The Legislature of a State may make laws for the whole or any part of the State [Article
245(1)]. This means that State Laws would be void if it has extra-territorial operation i.e.,
takes effect outside the State.
Hence State law would be invalid if it has extra-territorial operation, i.e., takes effect outside
the State. But there is exception to this general rule. A State law of extra-territorial operation
will be valid if there is sufficient nexus between the object and the State, State of Bombay
v. R.M.D.C, AIR 1957 SC 699. (2) Jurisdiction with respect to subject-matter - A federal
system postulates a distribution of powers between Centre and States. The nature of
distribution varies with the local circumstances of each country. In America, Australia,
Canada and other federal countries the Government powers are clearly demarcated by their
constitutions. The American Constitution only enumerates the powers of the Central
Government and leaves the residuary powers to the States. Australia follows the American
pattern and enumerates only the powers of the Central Government. In Canada, there is
double enumeration of federal and provincial, leaving the residue for the Centre. Canada
opted for a strong centre. The Indian Constitution has followed the Constitution of Canada
obviously option for a strong Centre. However, they added one List the concurrent list. The
present Constitution divides the powers between the Union and the States in three lists - the
Union list (List I), the State list (List II, and the Concurrent list (List III). The powers not
enumerated in three lists, that is residuary powers are entrusted to the Centre.

1. Union List - The Union List comprises subjects within the legislative competence of the
Parliament; the State list, subjects within the Legislative competence of the State; the
concurrent list, subjects in respect of which both the Union and State have jurisdiction to
legislate.
The Union list includes 97 items including defence, foreign affairs, banking, currency, and
coinage, etc.
2. State List - The State list includes 66 items including public order and police, local
Government, public health and sanitation, agriculture, forest, fisheries, education and State
taxes, etc. The (42nd Amendment) has taken out education from it and included it in
concurrent list.
3. Concurrent List - The concurrent list consists of 47 items such as Criminal Law and
procedure, Civil Procedure, marriage, contracts, torts, trusts, welfare of labour, social
insurance, economic and social planning.
Where a law of the State is repugnant to a law of the Union, the latter shall prevail. In
respect of a subject, in concurrent list the State law may prevail notwithstanding
repugnancy, if the State law reserved for the assent of the President and has received such
assent.
Residual powers - Parliament has exclusive power to legislate with respect to any matter
not included in the Concurrent or State list (Article 248). Such exclusive powers are called
residuary powers. Entry 97 in the Union list also lays down that the Parliament has the
exclusive powers to make laws with respect to any of the matters not stated in the three
lists. Unlike the Constitution of India the Constitution of the U.S.A., Australia and
Switzerland vest the residuary power not in the Centre but in the States.
In the State of Karnataka v. Union of India, AIR 1978 SC 68, the Supreme Court
observed that if the subject of enquiries the ministers in the State Government is not
mentioned specifically either in any of the articles of the Constitution or in the Legislative
lists it does not follow from it that legislation covering such enquiries is incompetent except
by means of Constitution amendment. On the contrary, under Article 248 also Parliament
has exclusive power to make law on any matter including levy of tax not enumerated in the
State list or concurrent list.
Q. 62 Discuss under what circumstances the Parliament can legislate
on State list?

Ans. Though in normal times the distribution of powers must be strictly maintained and
neither the State nor the Centre can encroach upon the sphere allotted to the other by the
Constitution, yet in certain exceptional circumstances the above system of distribution is
either suspended or the powers of the Union Parliament are extended over the subjects
mentioned in the State List. The exceptional circumstances are:
(1) Power of Parliament to legislate in the national interests - According to Article 249, if the
Rajya Sabha passes a resolution supported by 2/3 of the members present and voting that
it is necessary or expedient in the national interest that Parliament should make laws with
respect to any matter enumerated within State Law, then it shall be lawful for the Parliament
to make laws for the whole or any part of the territory of India with respect to that matter so
long as the resolution remains in force. Such a resolution normally lasts for a year, it may be
renewed as many times necessary but not exceeding a year at a time.
(2) During a Proclamation of Emergency : According to Article 250 while the Proclamation of
Emergency is in operation the Parliament shall have power to make laws for the whole or
any part of the territory of India with respect to all matters in the State list.
(3) Parliament's power to legislate with the consent of the States: According to Article 252 if
the Legislature of two or more State pass resolution to the effect that it is desirable to have
a law passed by Parliament on any matters in the State list, it shall be lawful for Parliament
to make laws regulating that matter. Any other State may adopt such a law by passing a
resolution to that effect. Such law can only be amended or repealed by the Act of
Parliament.
(4) Parliament's power to legislate for giving effect to treaties and international agreements:
Article 253 empowers the Parliament to make any law for the whole or any part of the
territory of India for implementing treaties and international agreements and conventions. In
other words, the normal distribution of powers will not stand in the way of Parliament to
pass a law forgiving effect to an international obligation even though such law relates to any
of the subject in the State List.
(5) In case of failure of constitutional machinery in a State - Under Article 256 Parliament is
empowered to make laws with respect to all matters in the State List when the Parliament
declares that the Government of the State cannot be carried on in accordance with the
provisions of the Constitution.
It is submitted that these provisions enable the Centre to legislate in exceptional
circumstances on the State subjects without amending the constitutions and thus
introducing a certain amount of flexibility in the scheme of distribution of powers. Thus the

framers have incorporated the federal principle in our Constitution in a modified form in the
light of the experience in another federations and in view of the peculiar requirement of our
country.
Q. 63 What do you understand by :(i) Doctrine of Repugnancy
(ii) Doctrine of Pith & Substance
(iii) Doctrine of Colorable legislation.

Ans. (i) Doctrine of Repugnancy


Article 254(1) says that if any provision of law made by the Legislature of the State is
repugnant to any provision of a law made by Parliament which is competent to enact or to
any provision of the existing law with respect to one of the matters enumerated in the
Concurrent List, then the law made by Parliament, whether passed before or after the law
made by the Legislature of such stage, or, as the case may be, the existing law shall prevail
and the law made by the Legislature of the State shall, to the extent of the repugnancy be
void.
Article 254(1) only applies where there is inconsistency between a Central Law and a State
Law relating to a subject mention in the Concurrent List. In M. Karunanidhi v. Union of
India, AIR 1979 SS 898, Fazal Ali, J., reviewed all its earlier decisions and summarised the
test of repugnancy. According to him a repugnancy would arise between the two statues in
the following situations:
1. It must be shown that there is clear and direct inconsistency between the two enactments
Central Act and State Act which is irreconcilable, so that they cannot stand together or
operate in the same field.
2. There can be no repeal by implication unless the inconsistency appears on the face of
the two statutes.
3. Where the two statutes occupy a particular field, but there is room or possibility of both
the statutes operating in the same field without coming into collusion with each other, no
repugnancy results.
4. Where there is no inconsistency but a statute occupying the same field seeks to create
distinct and separate offences, no question of repugnancy arises and both the statutes
continue to operate in the same field.

Clause (2) of Article 254 states that where a law made by a state legislature with respect to
a matter in the Concurrent list contains any provisions repugnant to the provisions of an
earlier parliamentary law or existing law with respect to that matter, then the state law will
prevail in the state provided it has been reserved for the President's consideration and has
received his assent. This clause is an exception to the general rule embodied to the clause
(1) of Article 254 as detailed above. A proviso to clause (2) states that nothing in clause (2)
shall prevent parliament from enacting at any time any law with respect to the same matter
including a law adding to, amending, varying or respecting the law so made by the state
legislature.
(ii) Doctrine of Pith and Substance : The Privy Council applied this doctrine in Prafulla
Kumar Mukherjee v. Bank of Khulna, AIR 1947 PC 60. In this case the validity of Bengal
Money Lender's Act 1946, which limited the amount and rate of interest recoverable by a
money lender on any loan was challenged on the ground that it was ultra vires the Bengal
legislature in so far as it related to "Promissory Notes", a central subject. The Privy Council
held that Bengal Money Lender's Act was in pith and substance a law in respect of money
lending and money lenders - a state subject, and was valid even though it trenches
incidentally on "Promissory Notes" - a Central subject.
In State of Bombay v. F.N. Balsara, AIR 1951 SC 318, the Bombay Prohibition act which
prohibited sale and possession of liquors in the state, was challenged on the ground that it
incidentally encroached upon import and export of liquor across custom frontier - a Central
subject. It was contended that the prohibition, purchase, use, possession and sale of liquor
will affect its import. The Supreme Court held the act valid because the pith and substance
of the act fill under the State list and not under Union list even though the Act incidentally
encroached upon the legislative powers of the Union.
(iii) Doctrine of Colourable Legislation : The doctrine of colourable legislation is based upon
the maxim that you cannot do indirectly what you cannot do directly. The doctrine becomes
applicable when a legislature seeks to do something in an indirect manner what it cannot do
directly. The doctrine thus refers to the question of competence of the legislature concerned
to enact a particular law. The constitution has already distributed legislative powers between
the Parliament and state legislatures and each has power to enact within its legislative
spheres, marked out for it by the specific legislative entires. In respect of the subject matter
of a particular legislation, the question may arise whether the legislature transgresses the
limits imposed on it by the Constitution. Such transgression may be patent, manifest or
direct or may be disguised, covert or indirect.

In order to decide to which class of subjects of legislation a statute really belongs, and so
whether or not the legislature has transgressed the sphere assigned to it what material is
the substance of the legislation in question, its true nature and character not its outward or
formal appearance. To ascertain the true character and substance of the enactment, courts
take into consideration its object, purpose or design.
In K.C.G. Narayan Dev v. State of Orissa, AIR 1935 SC 375 the Supreme Court explained
the meaning and scope of the doctrine of Colourable Legislation in the following terms:
"If the Constitution distributes the legislative power amongst different Legislative bodies,
which have to act within their respective spheres marked out by specific legislative Entries,
or if there are limitations on the legislative authority in the shape of fundamental rights,
question arises as to whether the Legislature in a particular case has or has not, in respect
to the subject-matter of the statute or in the method of enacting it, transgressed the limits of
its constitutional powers. Such transgression may be patent, manifest or direct, but it may
also be disguised, covert or indirect, or and it is to this latter class of cases that the
expression colourable legislation has been applied in judicial pronouncements. The idea
conveyed by the expression is that although apparently a legislature in passing a statute
purported to act within the limits of its powers, yet in substance and in reality it transgressed
these powers, the transgression being veiled by what appears, on proper examination to be
a mere pretence or disguise.....
Q. 64 Discuss the methods of administrative control over the State
by Union.

Q. 65 Describe the financial relation between Union and the States


Or
Discuss the provisions dealing with distribution of revenue between
Union and the State.
Ans. Article 268 provides the scheme of the distribution of revenue between the Union and
the States. The States possess exclusive jurisdiction over taxes enumerated in the State
List. The Union is entitled to the proceeds of the taxes in the Union List. The Concurrent List
includes no taxes. However, it is to be noted that while the proceeds of taxes within the

State Lists are entirely retained by the States proceeds of some of the taxes in the Union
List may be allowed, wholly or partially to the States. The Constitution mentions following
categories of the Union taxes which are wholly or partially assigned to the States:
1. Duties levied by the Union but collected and appropriated by the States - According to
Article 268 stamps duties and duties of excise on medicinal and toilet preparations
mentioned in the Union List shall be levied by the Central Government. These duties are
collected by the States within which such duties are leviable. The proceeds of such duties
are assigned to the States.
2. Taxes levied and collected by the Union and assigned to the States : Constitution 80th
Amendment Act, 2000 : The Constitution (80th Amendment) Act, 2000 has amended Article
269 and substituted new clauses in place of clauses (1) and (2) of Article 269. It has also
substituted a new Article in place of the existing Article 270 and has deleted Article 272 of
the Constitution. The amendment has been enacted on the basis of the recommendations
of the Tenth Finance Commission.
The new clause (1) of Article 269 provides that taxes on sale or purchase of goods and
taxes on the assignment of goods shall be levied and collected by the Government of India
but shall be assigned and shall be deemed to have been assigned to States on or after the
1st day of April, 1996 in the manner as may be prescribed by Parliament by law. The
expression "taxes on the sale or purchases of goods" shall mean taxes on sale or purchase
of goods other than newspapers, where such sale or purchase takes place in the course of
inter- State trade or commerce.
The new clause (2) of Article 269 provides that the net proceeds in any financial year of any
such tax, except in so far as those proceeds represent proceeds attributable to Union
territories, shall not form part of the Consolidated Fund of India; but shall be assigned to the
States within which tax is leviable in that year, and shall be distributed among those States
in accordance with such principles of distribution as may be prescribed by Parliament by
law.
3. Taxes levied and collected by the Union but distributed between the Union and States The Constitution (80th Amendment) Act, 2000 has substituted a new Article for Article 270
which shall be deemed to have been substituted with effect from 1st day of April, 1996. The
new Article 270 provides that "all taxes and duties referred to in the Union List, except the
duties and taxes referred to in Articles 271 and any cess levied for specific purposes under
any law made by Parliament shall be levied and collected by the Government of India and
shall be distributed between the Union and the States in the manner provided in clause (2).

Clause (2) provides that such percentage, as may be prescribed, of the net proceeds of any
such tax or duty in the financial year shall form part of the Consolidated Fund of India, but
shall be assigned to the States within which that tax or duty is leviable in that year, and shall
be distributed among those States in such manner and from such time as may be
prescribed in the manner provided in clause (3).
According to clause (3) the word "prescribed" in Article 270 means Finance Commission
which will give its recommendation to the Government about the actual amount of net
proceeds from all taxes and duties leviable by the Central Government and shall be
distributed among the States. This amendment will enhance the income of the States.
4. Taxes for the purpose of the Union - Article 271 provides that it Parliament at any time
increases any of the duties or taxes mentioned in Articles 269 and 270 by imposing a
surcharge, the whole proceeds of any such surcharge shall form part of the Consolidated
Fund of India.
Q. 66 Write short notes on (i) Consolidated Fund of India and of the
states, (ii) the Public Accounts of India and of the states.

Ans. Consolidated Fund and Public Accounts of India and of states : Subject to the
provisions of the contingency fund and the provisions with respect to the assignment of the
whole or part of the net proceeds of certain taxes and duties of states, all revenues received
by the Government of India, all loans raised by that government by the issue of treasure
bills, loans or ways and means, advances and all moneys received by that Government in
repayment of loans, shall form one consolidated fund to be entitled "the consolidated fund of
India" and all revenues received by the Government of the state, all loans raised by the
Government by the issue of treasury bills, loans or ways and means, advances and all
moneys received by that Government in repayment of loans form consolidated fund to be
entitled "the consolidated fund of the state". (Article 266(1)).
All other public moneys received by or on behalf of the Government of India or the
Government of a State, shall be credited to the public accounts of India or the public
accounts of the state, as the case may be. (Article 266(2)).
No moneys out of the consolidated fund of India or the consolidated fund of a State shall be
appropriated except in accordance with law and the purpose and in the manner provided in
this Constitution. This restriction does not apply to the public accounts. (Article 266(3)).

Q. 67 Describe the provisions relating to the Contingency fund of


India.

Ans. Article 267 authorises Parliament and state legislature to create a contingency fund
formed by such sums as may be determined by law. Article 267(1) provides that Parliament
may, by law, establish a "Contingency Fund of India" into which shall be paid from time to
time such sums as may be determined by such law, and the said fund shall be placed at the
disposal of the President to enable advances to be made by him out of such fund for the
purposes of meeting unforeseen expenditure pending authorisation of such expenditure by
Parliament by law under article 115 or Article 116.
Further, Article 267(2) lays down that the legislature of a state may by law establish a
contingency fund in the nature of an imprest to be entitled to the "Contingency Fund of the
State," into which shall be paid from time to time such sums as may be determined by such
law, and said fund shall be placed at the disposal of the Governor of the state to enable
advances to be made by him out of such fund for the purposes of meeting unforeseen
expenditure pending authorisation of such expenditure by the legislature of the state by the
law under Article 205 or Article 206.
The Contingency fund whether of the union or of the state is an emergency fund for making
advances to meet unforeseen expenditures without going through the formality otherwise
prescribed for making any expenditure so that the situation may be expeditiously dealt with.
Q. 68 Discuss the Constitution and functions of the Finance
Commission.

Ans. According to Article 280(1) the President shall within two years from the
commencement of the Constitution and thereafter at the expiration of every fifth year or at
such earlier times as the President considers necessary, by order Constitute a Finance
Commission which shall consist of a Chairman and four members to be appointed by the
President.
Article 280(2) provides that Parliament may by law determine the qualification which shall
be requisite for appointment as member of the commission and the manner in which they
shall be selected.
Duties of the Finance Commission -

It shall be the duties of the Finance Commission to make recommendations to the President
as to(a) the distribution between the union and the states of the net proceeds of taxes which are
to be, or may be, divided between them under this chapter and the allocation between the
states of the respective shares of such proceeds;
(b) the principle which should govern the grants-in-aid of the revenues of the states out of
the consolidated fund of India;
(c) any other matter referred to the Commission by the President in the interest of sound
finance.
The Commission shall determine their procedure and shall have powers in the performance
of their functions as Parliament may by law confer on them.
Article 281 provides that the President shall cause every recommendations of the Finance
Commission to be laid before each House of Parliament together with an explanatory note.
The scheme of distribution of revenue indicate, like distribution of legislative and
administrative powers a clear tendency towards centralisation in favour of the centre. The
Centre's resources are vast but the state resources are very meagre while the
responsibilities of states are many fold. The control of centre over the finances appears to
be a violation of the principles of federation which is adopted in the India Constitution. But it
is to be stood in the context of historical background underlying the Indian Constitution, that
is for consolidating and strengthening the unity of India. It is the Central Government which
is ultimately responsible for maintaining economic unity and thereby maintaining the welfare
of country.
Q. 69 Explain the provisions of Constitution relating to Right to
Property.

Ans. The Constitution (44th Amendment) Act, 1978, has omitted Articles 19(1)(f) and 31
from Part III of the Constitution and thus the right to property is no more a fundamental right.
The said amendment has added a new chapter by inserting a new Article 300-A which
relates to "right to property" (Chapter IV). Article 300-A is the reproduction of Article 31(1)
according to which "no person shall be deprived of his property except by authority of law".
Here the law means the ordinary law of land. Hence has authority to take away the property
of an individual if it is in accordance with an ordinary law passed by the Legislature. Thus,

both these questions that for what purpose property will be taken and whether any
compensation will be paid will be determined by the legislature. Now right to property not
being fundamental right, in case of violation of right to property under Article 300-A a person
will not be entitled to invoke the writ jurisdiction of Supreme Court under Article 32. He will,
however, be entitled to invoke the jurisdiction of High Courts under Article 226.
The eminent jurist Mr. M. Seervai has strongly criticised by saying that it would destroy the
most cherished right which are embodied in our Constitution. According to him, this
amendment has taken away the very valuable rights of an individual.
Dr. P.K. Tripathi in his Article "Right to property after 44th Amendment" (A.I.R. 1980) Journal
51, concluded that now the right to property of citizens and non-citizens, is more
comprehensively and firmly secured under the constitutional law of India, than ever before.
He justified his conclusion by stating that an amendment in existing position will now require
not only the procedures laid down in Article 368, but also, the consent of the States as
required in the proviso to Article 368.
In Maneka Gandhi v. Union of India, (AIR 1978 SC 597) and later in series of other cases
the Supreme Court has held that the validity of a law passed under the new Article 300-A for
the purpose of depriving a citizen of his property can be challenged on the ground of no
provision for payment of compensation for the property compulsorily acquired for public
purpose.
In this case the meaning and the scope of 'law' has been enlarged. Now after this decision
term law has been explained as a valid law which is just, fair and reasonable in nature as
well as procedure.
Any law made under Article 300-A which does not provide for compensation for the property
to be acquired compulsorily for public purpose, will be declared void, unfair, unjust,
unreasonable hence unconstitutional.
Q. 70 Discuss the scope and extent of the freedom of trade,
commerce and intercourse under the Constitution.

Ans. Freedom of Trade, Commerce and Intercourse is secured in India by Article 301 which
declares that trade, commerce and intercourse throughout the territory of India shall be free.
Articles 302 to 305 are exceptions to Article 301 of the Constitution.
In Atiabari Tea Co. v. State of Assam, AIR 1951 SC 232, the validity of the Assam
Taxation (on Goods Carried by Roads or Inland Waterways) Act of 1954 was challenged on

the ground that it violated Article 301 of the Constitution and was not saved by Article
304(b). The petitioner carried on the business of growing tea and exporting it to Calcutta via
Assam. While passing through Assam the tea was liable to tax under the said Act. The
Supreme Court held that the impugned law undoubtedly levied a tax directly and
immediately on the movements of goods and therefore came within the purview of Article
301. The Act was, therefore, held void. The Court said that taxes may and do amount to
restrictions if they directly and immediately restrict trade.
In Automobile Transport Ltd. v. State of Rajasthan, AIR 1962 SC 1906 the appellant
challenged the validity of the Rajasthan Motor Vehicles Taxation Act, 1951, inter alia, as
violating Article 301. The State Government imposed a tax on all motor vehicles used and
kept within the State of Rajasthan. The Court held the tax valid as they were only regulatory
measures imposing compensatory taxes - for facilitating trade, commerce and intercourse.
The majority judgment in the Atiabari Tea Co.'s case read with a majority judgment in the
Automobile's case lead to the following principles relating of Article 301.:
(1) Article 301 assures freedom of inter-State as well as intra-State trade, commerce and
intercourse.
(2) Trade, commerce and intercourse have the widest connotation and take in movement of
goods and persons.
(3) The freedom is not only from laws enacted in the exercise of the powers conferred by
the legislative entries relating to trade and commerce or production, supply and distribution
of goods, but also to all laws including tax laws.
(4) Only those laws whose direct and immediate effect to inhibit or restrict freedom of trade
or commerce will come with the mischief of Article 301.
(5) Laws which are merely regulatory or which impose purely compensatory taxes, and
hence intended to facilitate freedom of trade, are outside the scope Article 301.
Exceptions to Right
Freedom of Trade, Commerce and Intercourse as contained in Article 301 is subject to
restrictions imposed in Article 302 to 305 of Constitution. These restrictions are as follows:(1) Parliament's power to regulate trade and commerce in the Public Interest - Article 302
authorizes President to impose such restrictions on the freedom of trade, commerce and
intercourse between one state and the other or within any part of the territory of India, as
may be required in the public interest. The question whether a restriction imposed by
Parliament by law in the public interest or not is justiciable issue. In that case Parliament is
given the sole power to decide what restrictions can be imposed in the public interest as

authorized by Article 302. It has been held in Surajmal Roop Chand & Co. v. State of
Rajasthan, AIR 1967 Raj. 104, that restrictions imposed on the movement of grain under
the Defence of India Rules, 1962 are in the public interest.
(2) Parliament's power to discriminate between states on the ground of exigencies of
situations - Article 303(1) provides that Parliament will not give any preference to one state
over another or discriminate between the states by virtue of an entry relating to trade and
commerce in any of the lists, but Article 303(2) gives power to the Parliament to give
preference over other states, if it is declared by law made by Parliament that it was
necessary to do so for the purpose of dealing with a situation arising from any scarcity of
goods in any part of India.
(3) State's power to regulate trade and commerce - Article 304(1) provides that state may by
law impose on goods imported from other state any tax to which similar goods
manufactured or produced in that state, are subject so, however, as not to discriminate
between goods so imported and goods so manufactured or produced. Thus what Article
304(a) ensures is that so far as taxation is concerned, inter state commerce must be put at
par with the intrastate commerce. But Article 304(b) authorizes a state to impose by law
such reasonable restrictions on the freedom of trade, commerce and intercourse with or
within that state as may be required in the public interest provided the Bill or amendment for
this purpose has received the previous sanction of the President before it is introduced or
moved in State Legislature. Hence a law passed by a state to regulate inter-state trade and
commerce, must satisfy the following conditions under Article 304(b) - (1) previous sanction
of the President of India must be obtained, (2) the law must be in public interest, (3)
restrictions imposed by such a law, must be reasonable.
In this way it is obvious that Parliament has powers to regulate trade, commerce and inter
course in the country.
(4) Saving of Existing Laws - Article 305 saves the existing laws from the operation of
Articles 301 and 303 except in so far as the President may by order otherwise directs.
Existing law is defined in Article 366(10) as any law, ordinance, order, bye-law, rule or
regulation passed or made before the commencement of the Constitution by any legislature
or authority. In Saghir Ahmad v. State of U.P., AIR 1964 SC 728, the Supreme Court
raised the question whether an Act providing for state-monopoly in a particular trade or
business, conflicts with the freedom of trade and commerce guaranteed by Article 301 but
left the question undecided. Article 19 was amended by the Constitution (Ist Amendment
act, 1951) in order to take out such state monopolies out of the purview of Article 19(1)(g).

It was held in the above case that as a matter of precaution, the laws creating statemonopolies, would not be declared invalid as infringing Article 301 for which the amendment
was added in Article 305. Thus a state or the Centre now can run any business on a
monopolistic basis and it would not be bad under Article 305 of the Constitution, because
such monopolies are reasonable restrictions in public interest.
Q. 71 Explain the Doctrine of Pleasure and state the exceptions
enumerated in the Constitution of India.

Ans. Doctrine of Pleasures - In England, the normal rule is that a civil servant of the Crown
holds his office during the pleasure of the Crown. This means that his services can be
terminated at any time by the Crown, without assigning any reason. Even if there is a
contract of employment between the Crown, the Crown is not bound by it. In other words, if
a civil servant is dismissed from service he cannot claim arrears of salary or damages for
premature termination of his service. The doctrine of pleasure is based on the public policy.
Article 310 of the Indian Constitution incorporates the Common law doctrine of pleasure. It
expressly provides that all persons who are members of the Defence Services or the Civil
Services of the Union of All-India Services hold office during the pleasure of the President.
Similarly, members of the State Services hold office during the pleasure of the Governor.
But this rule of English law has not been fully adopted in this Article. Thus Article 310 itself
places restrictions and limitations on the exercise of the pleasure under Article 310 is limited
by Article 311(2). The services of permanent Government servant cannot be terminated
except in accordance with rules made under Article 309, subject to the procedure in Article
311(2) of the Constitution and the fundamental rights. The above doctrine of pleasure is
invoked by the Government in the public interest after a Government servant attains the age
of 50 years or has completed 25 years of service. This is constitutionally permissible as
compulsory termination of service under F.R. 56(b) does not amount to removal or dismissal
by way of punishment. While the government reserves its right under F.R. 56(b) to
compulsory retire a Government servant even against his wish, there is a corresponding
right of the Government servant under F.R. 56(c) to voluntarily retire from service by giving
the Government three months' notice.
Restriction on doctrine of Pleasure - The Constitution lays down the following limitations on
the exercise of the doctrine of pleasure:

(1) The pleasure of the President or Governor is controlled by provisions of Article 311, so
the field covered by Article 311 is excluded from the operation of the doctrine of
pleasure (Motiram v. North Eastern Frontier Railway, AIR 1964 SC 600).The pleasure
must be exercised in accordance with the procedural safeguards provided by Article 311.
(2) The tenure of the Supreme Court Judges [Article 124], High Court Judges [Article 218],
Auditor-General of India [Article 148(2)]. The Chief Election Commissioner [Article 324], and
the Chairman and members of the Public- Service Commission [Article 317] are not
dependent on the pleasure of the President or the Governor, as the case may be. These
posts are expressly excluded from the operation of the doctrine of pleasure.
(3) The doctrine of pleasure is subject to the Fundamental Rights (Union of India v. P.D.
More, AIR 1962 SC 630; General Manager, S. Rly. v. Rangachari, AIR 1962 SC 36).
Q. 72 Discuss the scope of Constitutional protection of Civil servants
in India.

Ans. Constitutional Safeguards to Civil Servants Article 311(1) provides "No person who is a member of a civil service of the union or an all
India service or a civil service of a state or holds a civil post under the Union or a State,
shall be dismissed or removed by an authority subordinate to that by which he was
appointed. Clause (2) of Article 311 lays down "No such person as aforesaid shall be
dismissed or removed or reduced in rank except after an inquiry in which he has been
informed of the charges against him and given a reasonable opportunity of being heard in
respect of the charges....."
These above mentioned provisions enact the general principle that a government servant
holds office during the pleasure of the government, with following restrictions on the
prerogative of dismissal at pleasure. To sum up, the contents of Article 311, are:
(i) the persons employed in civil capacities under the Union or State shall not be dismissed
or removed by an authority subordinate to that by which they were appointed; and
(ii) no such person shall be dismissed or removed or reduced in rank except after an inquiry
as provided in clause (2) of Article 311.
These restrictions are Constitutional safeguards of the civil servants.
No Removal by a subordinate Authority - Supreme Court has held in Mahesh v. State of
U.P., AIR 1955 SC 70, that it does not mean that the removal or dismissal must be by the
same authority who made the appointment or his direct superior. In this case the person

appointed by the Divisional Personal Officer, E.I.R., was dismissed by the Superintendent,
Power, E.I.R. The Court held the dismissal valid as both the officers were of the same rank.
Reasonable opportunity to defend - The rule of reasonable opportunity embodied in Article
311(2) is the most important safeguard furnished to a civil servant under the India
Constitution. Two important questions regarding Article 311(2) are:
(i) who can invoke the protection of this Article and when;
(ii) what is the content of the words "reasonable opportunity" used in Article 311(2).
(i) When and to whom Article 311(2) applies - Article 311(2) applies only the persons who
are members of a civil service of the Union or of an all India service or of a civil service of a
state or to persons who hold a civil post under the Union or a state these safeguards are not
applicable to members of defence forces or to any posts connected with defence. Thus, the
protection under Article 311 is not available to military personal who are governed by the
Army Act. Their services can be terminated without assigning any reasons.
The Supreme Court has held in Sukhdeo Singh v. Bhagatram, AIR 1975 SC 1331 that
statutory corporations such as L.I.C., O.N.G.C. and Industrial Finance Corporation, are
state under Article 12, but protection of Article 311(2) is not available to their employees.
The provisions of Article 311 are applicable both to permanent and temporary servants, as
has been held by the Supreme Court in Parshottum Lal Dhingra v. Union of India, AIR
1958 SC 56. However, suspension of a government servant from service is neither
dismissal nor removal and is, therefore, not within the scope of protection of Article 311 of
the Constitution.
(ii) Reasonable opportunity to defend - Article 311(2) lays down that a civil servant cannot
be dismissed, or removed or reduced in rank unless he has been given reasonable
opportunity to show cause against the action proposed to be taken against him. Originally,
the opportunity to defend was given to a civil servant at two stages, (i) at the inquiry stage,
and this is in accord, with the rule of principles of natural justice that no person should be
condemned without hearing, (ii) at the punishment stage, when after enquiry charges have
been proved and any of the three punishments, dismissal or removal or reduction in rank,
were proposed to be taken against him. The Constitution (42nd Amendment Act, 1976) has
abolished the right of the government servant to make representation at the second stage of
the enquiry. The newly added proviso to Article 311(2) makes it clear that if after enquiry it is
proposed to enforce upon a person any of the above mentioned punishments; they may be
imposed on the basis of the evidence given during such enquiry, and he shall not be entitled
to make any representation.

The protection under Article 311(2) is available only when dismissal, removal or reduction in
rank, has been inflicted on a civil servant by way of punishment and not otherwise.
The protection of Article 311(2) will not be available to a civil servant in following situations:(1) Where a civil servant has been dismissed or removed or reduced in rank on the ground
of misconduct which has led to his conviction on criminal charges;
(2) Where it is impracticable to provide a civil servant an opportunity to depend himself but
the authority taking action against him shall record the reasons for such action;
(3) According to proviso of Article 311 where the interest of the security of State is pertinent
it will not be expedient to provide an opportunity to defend to the concerned civil servant.
Q. 73 Discuss the composition and function of Public Service
Commission in Union and State.

Ans. Public Service Commission The Constitution provides for the establishment of Public Service Commission for the Union
and for each State [Article 315(1)]. Two or more States may agree to have Common Public
Service Commission [Article 315(2)]. The Union Public Service Commission, if requested by
the Governor of State, may with the approval of the President, agree to act for a State.
Appointment of Members of Public Service Commission - The Chairman and Members of
the Union Public Service Commission or a Joint Commission are appointed by the
President and in the case of a State commission by the Governor [Article 316(1)]. But "as
nearly as may be" one-half of the members of every Public Service Commission must be
persons who at the dates of their appointments have held office for at least ten years under
the Government of India or the Government of a State.
A member of Public Service Commission shall hold office for a period of 6 years. Unless he
attains the age of 65 in case of Union Commission or 60 years in case of State
Commission, whichever is earlier. If he attains the age of retirement he has to retire even
before the expiry of normal terms of 6 years. A member may himself resign from his office.
He may also be removed from his office by order of the President on the ground of
misbehaviour, if on reference made by the President the Supreme Court, after enquiry,
report to the President that he should be removed. If the Chairman or any other member of
a Public Service Commission is or becomes in any way concerned or interested in any
contract, agreement made by or on behalf of the Government of India or State Government

or participates in any way in the profits or emolument resulting from such contract, or
agreement he shall be deemed to be guilty of misbehaviour [Article 317(1)].
Functions of Public Service Commission - It shall be the duty of the Union and the State
Public Service Commission to conduct examinations for appointments. If requested by two
or more States it shall be obligatory on the Union Public Service Commission to assist them
in devising of joint recruitment for services requiring special qualifications. The Union or
State Commissions must be consulted(1) in all matters relating to methods of recruitment to civil posts;
(2) on the principles to be followed in making appointments: promotions and transfers and
the suitability of candidates;
(3) on disciplinary matters affecting a person in service under the Central or State
government;
(4) on any claim by such a person for the costs incurred in defending legal proceedings
instituted against him in respect of acts done or purporting to be done in the execution of his
duty;
(5) on any claim for compensation in respect of injuries sustained by a person while in
service of the Government.
In all above matters it shall be the duty of the Commission to advise. However, the
President and the Governors make regulations specifying the matters in which, either
generally or in any particular circumstances the Commission may not be consulted [Article
203(3)]. The functions of Public Service Commission are only advisory and the Constitution
has no provision to make it obligatory upon the Government to act, upon the advice of the
Commission in any case.
Additional functions may be assigned to the Union and State Public Service Commission by
an Act of Parliament and State Legislature [Article 321]. The expenses of the Union or a
State Public Service Commission, and the salaries, allowances of its members are charged
on the Consolidated Fund of India or State, as the case may be [Article 322].
The Commissions shall submit an annual report on the work done by them to the President
or Governor, as the case may be. The reports are to be laid before the Parliament and the
State Legislatures, respectively together with a memorandum as regards the cases where
the advice of the Commission was not accepted and the reasons for such non-acceptance
[Article 323(1) and (2)].

Q. 74 Discuss how the administrative tribunals and tribunals for


other matters shall be constituted. Discuss the scope and extent of
their powers and functions.

Ans. The Constitution (42nd Amendment) Act, 1976 has added a new Part XIV-A to the
Constitution. This Part XIV-A consists of two Articles 323-A and 323-B which empower the
Parliament to establish hierarchy of tribunals to decide disputes relating to tax matters,
export, imports, labour disputes, matters relating to land reform and urban ceilings, election
disputes, service matters and matters relating to supply of essential commodities.
Administrative Tribunals for Service matters - Article 323-A provides for the establishment of
administrative tribunals for the adjudication of disputes of Government servants.
Article 323-A lays down :
(1) Parliament may, by law, provide for the adjudication or trial by administrative tribunals of
disputes and complaints with respect to recruitment and conditions of service of persons
appointed to public services and post in connection with the affairs of the Union or of any
State or of any local or other authority within the territory of India or under the control of the
Government of India or any corporation owned or controlled by the Government.
(2) A law made under clause (1) may make provisions for :(a) a separate administrative tribunal for the Union and each State or for two or more
States;
(b) of the jurisdiction, powers (including the power to punish for contempt) and authority
which may be exercised by each of said tribunals;
(c) of the procedure (including provisions as to limitation and rules of evidence) to be
followed by the said tribunals;
(d) excluding the jurisdiction of all courts, except the jurisdiction of the Supreme Court under
Article 136, with respect to the disputes or complaints referred to in clause (1).
(e) The transfer of all cases to tribunals which were pending in any court or authority before
the establishment of such tribunals;
(f) repeal or amend any order made by the President consequential provision, (including
provisions as to fees) as Parliament may deem necessary for the effective functioning of
and for the speedy disposal of cases by and the enforcement of the orders of such
tribunals.

(3) The provisions of this Article shall have effect notwithstanding anything in any other
provision of this Constitution or any other law for the time being in force.
Tribunals for other matters - Article 323-B - Article 323-B empowers Parliament and the
State Legislature to establish tribunals for the adjudications of any disputes, complaints or
offences with respect to all or any of the matters specified in clause (2) of this Article. The
matters referred to in clause (2) are the following, namely:(a) levy, assessment, collection and enforcement of any tax;
(b) foreign exchange and export;
(c) industrial and labour disputes;
(d) land reforms laws enacted under Article 31-A of the Constitution;
(e) ceiling on urban property;
(f) election disputes of members of Parliament or the State Legislatures, but excluding the
matters referred to in Articles 329 and 329-A. These Articles have taken away the
jurisdiction of the Courts to decide election disputes of the Prime Minister and Speaker of
the Lok Sabha;
(g) production, procurement, supply and distribution of foodstuffs and essential goods and
control of prices of such goods;
(h) rent, its regulation and control and tenancy issues including the rights, title and interests
of landlords and tenants.
(i) offences against laws with respect to any of the matters specified in sub-clauses (a) to
(h) and fees in respect of any of those matters;
(j) matters incidental to any of the matters specified in the above sub-clauses. Such a law
will define the jurisdiction and powers of such tribunals and will lay down procedure to be
followed by the said tribunals.
Appeal to Supreme Court by special leave under Article 136 : Though the writ jurisdiction of
High Courts has now been taken away but an aggrieved party can still go to Supreme Court
under Article 136 of the Constitution. The Supreme Court has already laid down the
guidelines for the grant of special leave to appeal from the decision of the tribunals.
Under the powers of Article 323-A, the Central Government has established one Central
Administrative Tribunal at Delhi and eight additional branches at different states which
started functioning with effect from Nov. 1, 1985.

Q. 75 Discuss the composition and Functions of Elections


Commission.

Ans. Election Commission : To ensure free, fair and impartial election the Constitution
establishes the Election Commission, a body autonomous in character and free from
political or executive influence. The commission is an All India body having jurisdiction over
elections to Parliament, State Legislature, offices of the President and Vice-President.
Article 324 provides for appointment of an election commission to superintend, direct and
control elections.
Its Composition - The Election Commission consists of the Chief Election Commissioner
and such number of election commissioners if any, as the President may fix from time to
time. According to Article 324(2) all these commissioners are appointed by the President
subject to the provisions of any law enacted by Parliament for the purpose. Article 324(4)
provides that the President may appoint, after consultation with the Election Commission
such Regional Commissioners as the President may consider necessary to assist the
Election Commission in the discharge of its functions. The Regional Commissioners may be
appointed before each general election of Lok Sabha and State Legislative Assemblies and
also the biennial election to the State Legislative Councils.
Article 324(3) provides that Chief Election Commissioner acts as the chairman of the
Election Commission. The President may determine by making rules, the conditions of
service and tenure of office of the Election Commissioners and Regional Commissioners.
This is, however, subject to the law made by the Parliament. Article 324 provides that the
tenure of Chief Election Commissioner is independent of the executive discretion for he
cannot be removed from his office except in the like manner and on the same grounds as a
judge of the Supreme Court. Further the conditions of his service cannot be varied to his
disadvantage after appointment. He can therefore discharge his functions without fear or
favour.
In S.S. Dhannoa v. Union of India, AIR 1991 SC 1745 Supreme Court has held that
Election Commissioners cannot be placed at par with the Chief Election Commissioner in
terms of power and authority.
On October 2, 1993 the Government issued an Ordinance (which is now on Act) and
converted the one man Election Commission into a multi member Commission by
appointing two persons as Election Commissioners. The Ordinance provides specifically

that the decision of three members Election Commission "shall as far as possible, be
unanimous". But, in case of difference of opinion between the Chief Election Commissioner
and other Election Commissioners, the matter "shall be decided according to the opinion of
the majority". The Ordinance has amended the law and equated the two Election
Commissioners with the CEC in respect of salary and other terms of service.
In a significant judgment in T.N. Seshan v. Union of India, (1995) 4 SCC 611 a five judge
Constitution Bench of the Supreme Court unanimously upheld the validity of the Act
equating the status, power and authority of two Election Commissioners with that of CEC
The Chief Election Commissioner Mr. T.N. Seshan had challenged the validity of the
Ordinance and the Act on the ground that it was arbitrary, unconstitutional and void.
Delivering the judgment of the Court, Ahamadi, CJ. held that the CEC does not enjoy a
status superior to other ECs. Although there are two differences between the service
conditions of CEC and other ECs such as the CEC can only be removed from his office in
the like manner and on the like ground as a judge of the Supreme Court and that conditions
of service cannot be varied to the disadvantage of the CEC after his appointment, while
other ECs can be removed on the recommendation of the CEC, but that is not an indicia for
conferring a higher status on CEC. Article 324 envisages a permanent body to be headed
by a permanent incumbent namely, the CEC. The scheme of Article 324 clearly provides for
a multi member body comprising the CEC and the Election Commissioners (ECs).
Functions of Election Commission - According to Article 324(1) the Election Commission
performs the following functions:
The superintendence, direction and control of the preparation of the electoral rolls and also
the conduct of elections to Parliament, State Legislatures and to the offices of President and
Vice-President. There shall be one general electoral roll for every territorial constituency
[Article 325]. No person shall be ineligible for inclusion in any such roll on grounds only of
religion, race, caste, sex or any of them. The elections to the Parliament and State
Legislatures are to be held on the basis of adult suffrage. Every person who is a citizen of
India and who is not less than 18 years of age is not otherwise disqualified under this
Constitution or any law (Representation of Peoples Act, 1950) made by the Legislature on
the ground of non-residence, unsoundness of mind, crime, or illegal practice, has a right to
be registered as a voter [Article 326].
Power of Parliament and State Legislatures with regard to election Law - Article 327
empowers Parliament to make provisions with respect to all matters, relating to or in
connection with election to Parliament and State Legislature, the preparation of electoral

rolls, the delimitation of constituencies and all other connected matters. In exercise of the
power conferred by Article 327, Parliament has enacted the Representation of Peoples
Acts, 1950 and 1951; the Presidential and Vice-Presidential Elections Act, 1952; and the
Delimitation Commission Act, 1952. Article 328 confers a similar power on State
Legislatures. The State Legislature can make laws relating to all the above matters referred
to under Article 327, in so far as provision in that behalf is not made by Parliament.
In Special Reference No. 1 of 2002, AIR 2003 SC 87 the President has referred the
important question regarding interpretation of Article 174 and Article 324 to the Supreme
Court for its opinion under Article 143 of the Constitution. Under Article 174 the government
has power to dissolve the State Legislative Assembly from time to time and place as he
thinks fit. This power, however, is exercised by the government. But it also provides that six
months shall not intervene between its last sitting in one session and the date appointed for
its first sitting in the next session. This means that in normal situation if a legislative
assembly is dissolved election must be held and the assembly be constituted to meet within
that period. Article 324 vests power of superintendence, direction and control of the
preparation of the electoral rolls for and the conduct of, all elections to Parliament and the
legislature of every State under this Constitution. Under Article 356 there is a provision for
the Presidentials Rule in a State. The facts were that there was an unfortunate accident in
Godhara in Gujarat on 27 February, 2002 in which 58 Kar Sevaks were burnt alive in a train
in which they were returning from Ayodhya to their homes. As a result of this there was
widespread communal riots in certain areas of State. The Chief Minister then took a political
move and prematurely dissolved the Assembly on 27 July, 2002 and recommended for
election. The Election Commissioner visited the State to take the stock of situation and took
the decision that condition in the State was not conducive for holding the assembly election.
It even recommended for the imposition of President's rule after the lapse of 6 months. In
view of this the government referred three questions to the Supreme Court for its opinion:
(1) Whether Article 174 is subject to the decisions of the Election Commission not to hold
elections in a State under Article 324.
(2) Whether the Election Commission can declare election schedule which violates Article
174 and after the expiry of 6 months constitutional period for assembly to meet
necessitating the imposition of President's Rule under Article 356.
(3) Whether the mandate of Article 174 to hold election will be fulfilled by the holding of
election by Commission under Article 324.

A Five Judge Bench headed by the Chief Justice B.N. Kirpal rejected the contention of the
Gujarat government that Article 174 of the Constitution which mandates that not more than
six months shall lapse between two sittings of an elected assembly and held that Article
174(1) does not apply to a 'dissolved Assembly' whose life has come to an end and ceased
to exist but applies to a 'live' assembly. The Court said that art. 174(1) neither relates to
elections nor does it provide any outer limit for holding elections for constituting the
Legislative Assembly". The Court held that the holding of elections is the exclusive domain
of the Election Commission under Article 324 of the Constitution. The Court said that this
was evident from Sections 14 and 15 of the Representation of People Act which provide
that the President or the Governor shall fix the date for holding elections on the
recommendations of the Election Commission.
Regarding whether Article 174 would yield to Article 324 the Court said that "Article 174(1)
and Article 324 operate on different fields and neither Article 174(1) is subject to Article 324
nor Article 324 is subject to Article 174(1).
Q. 76 Discuss how the Constitution protects the rights of minorities
in India?

Ans. The Constitution of India does not recognise religious minorities. - All votes shall
be enrolled in one general electoral roll for any territorial constituency (Article 325). There is
no discrimination on the grounds of religion, caste, race, or tribe in election or public
services.
The Constitution, however, recognise linguistic and cultural minorities. any section of the
citizens of India having a distinct language, script or culture shall have the right to conserve
the same. [Article 29(1)].
They may have their educational institutions of their own choice (Article 30). They may get
the language spoken by them officially recognised (Article 347). There is no reservation of
seats in the House of People or Legislative Assembly for any community, except Scheduled
Castes and Scheduled Tribes and Anglo-Indians (Articles 330-333). The claims of
Scheduled castes and Tribes shall be taken into consideration in making appointments to
public services consistently with efficiency of the administration (Article 335). during the first
two years after the commencement of this Constitution appointment of Anglo-Indians to
posts in the railways, Customs, postal and telegraph services shall be made on the same
basis as immediately before the 15th August, 1947; there shall be successive reduction in

such reservation by ten percent, after every two years (Article 336). The President or
Governor, as the case may be, may nominate two members of the Anglo-Indian community
to Parliament or the Legislative Assembly if their representation is inadequate. Such
representation in Parliament, or Legislative Assemblies or public services for any
community shall cease on the expiry of ten years after the commencement of the
Constitution (Articles 344, 356).
Reservation of seats and special representation to cease after twenty years - Article
334 of the Constitution of India as amended by the Constitution (23rd Amendment) Act,
1969, provides that (a) the reservation of seats for the Scheduled Castes and the
Scheduled Tribes in the House of the People and (b) the representation of the Anglo-Indian
Community in the House of the People and the Legislative Assembly of the States by
nomination, shall cease to have effect on the expiration of a period of forty years (amended
by 45th Amendment Act 1980) from the commencement of this Constitution.
Formerly the period of reservation was intended to be only fourteen years from the
commencement of the Constitution but now by the new amendment i.e., the Constitution
(23rd Amendment) Act, 1969, the reservation will continue for thirty years, (45th
Amendment) Act has amended the Article 336 and now expiry period has been extended
upto forty years instead of thirty years.
Q. 77 What are the special provisions contained in the Constitution
for the protection of interest of the Scheduled Castes and Scheduled
Tribes? Discuss.

Ans. The Constitution has not defined as to which are the sections of Scheduled Castes
and Scheduled Tribes. It, however, empowers the President to draw up list of these castes
and specify as the Scheduled Castes and Scheduled Tribes by a notification. The Governor
of a state has the similar power for the state. Any alteration in the list is within the power of
the Parliament. However, following are the special provisions for the protection of the
interest of the Scheduled Castes and Scheduled Tribes:
(1) According to Article 330, seats shall be reserved in the House of the Peoples for:
(a) the Scheduled Castes,
(b) the Scheduled Tribes,
(c) the Scheduled Tribes in the autonomous districts of Assam.

(2) Article 332 provides that seats shall be reserved for the Scheduled Castes and
Scheduled Tribes in the Legislative Assembly of every state.
(3) According to Article 334, the reservation of seats for the Scheduled Castes and
Scheduled Tribes shall cease to have effect after the expiry of period of fifty years from the
commencement of the Constitution.
(4) Reservation of posts for the appointment of candidates in the services of the union and
states, shall be made under Article 164(4) of the Constitution, in favour of Scheduled Castes
and Scheduled Tribes candidates.
(5) Article 15(4) provides that nothing in this Article or in clause (2) of Article 29, shall
prevent the state from making any special provisions for the advancement of any socially
and educationally backward classes or citizens or for Scheduled Castes and Scheduled
Tribes.
(6) Article 338(1) provides that there shall be a special officer for the Scheduled Castes and
Scheduled Tribes to be appointed by the President. Clause (2) of Article 338 provides that it
shall be the duty of the special officer to investigate all matters relating to the safeguards
provided for the Scheduled Castes and Scheduled Tribes and to report to the President
upon the working of such safeguards at such intervals as the President may direct, and the
President shall cause all such reports to be laid before the Parliament.
(7) According to Article 339 (1) the President may at any time and shall at the expiration of
ten years from the commencement of the Constitution, by order appoint a commission to
report on the administration of the Scheduled Areas and the welfare of the Scheduled Tribes
in the state. The Union Government shall have power to give directions to the State
Governments to draw up and execute the schemes specified in the direction to be essential
for the welfare of the Scheduled Tribes in the state.
The above are in nutshell the constitutional provisions for the protection of interests of the
Scheduled Castes and Scheduled Tribes.
Q. 78 Discuss the Constitutional provisions relating to the official
language of the Union and the states.

Ans. According to Article 343(1) of the Constitution, the official language of the Union shall
be Hindi in Devnagri script. However, the form of numericals to be used for the official
purposes of the Union shall be international form of Indian numericals.

Article 343(2) provides that for a period of fifteen years from the commencement of the
Constitution, the English language shall continue to be used for all the official purposes of
the Union.
Even during this period of fifteen years, the President may authorise the use of the Hindi
language in addition to the English language and of the Devnagri form of numericals for any
of the official purposes of the Union.
Article 343 lays down that Parliament may, by law, provide for the use, after the said period
of fifteen years, of
(a) the English language;
(b) the Devnagri form of numerals, for such purposes as may be specified in law (Article
343).
Official language of States - The Legislature of a State may, by law, adopt any one or more
of the languages in use in the State or Hindi as the language or languages to be used for all
or any of the official purpose of the State.
Until the Legislature of the State otherwise provides by law, the English language shall
continue to be used for those official purposes within the State for which it was being used
immediately before the commencement of this Constitution. (Art. 345).
Q. 79 What is the language for communications between the Union
and a State and the States inter se? Discuss the constitution and
function of the commission and committee of Parliament on official
language.

Ans. The language for the time being authorised for use in the Union for official purpose
shall be the official language for communication between one State and another State and
between a State and the Union;
Provided that if two or more States agree that the Hindi language shall be the official
language for communication between such states, the language may be used for such
communication. (Article 346).
Commission and Committee of Parliament on official language - The Constitution provides
for the appointment of a commission as well as a committee of Parliament to advise the
President on certain matters relating to the official language.

According to Article 334(1) the President shall at the expiration of five years from the
commencement of this Constitution and thereafter at the expiration of ten years from such
commencement by order constitute a commission which shall consist of a chairman and
such other members representing the different language specified in the Eighth Schedule
as the President may appoint, and the order shall define the procedure to be followed by the
Commission (Article 344(1)).
It shall be the duty of the Commission to make recommendations to the President as to(a) the progressive use of the Hindi language for the official purposes of the Union;
(b) restrictions on the use of the English language for all or any of the official purposes of
the Union;
(c) the language to be used for all or any of the purposes mentioned in Article 348;
(d) the form of numerals to be used for any one or more specified purposes of the Union;
(e) any other matter referred to the commission by the President as regarded the official
language of the Union and the language for communication between the Union and a State
or between one State and another and their use [Article 344(2)].
In making their recommendations under clause (2) the Commission shall have due regard
to the industrial, cultural and scientific advancement of India, and the just claims and the
interest of persons belonging to the non-Hindi speaking areas in regard to the public
services [Article 344(3)].
There shall be constituted a committee consisting of thirty members, of whom twenty shall
be members of the House of the People and ten shall be members of the Council of State to
be elected respectively by the members of the House of the People and the members of
Council of States in accordance with the system of proportional representation by means of
the single transferable vote. [Article 344(4)].
It shall be the duty of the committee to examine the recommendation of the commission
constituted under clause (1) and to report to the President their opinion thereon [Article
344(5)].
Notwithstanding anything in Article 348, the President may after consideration of report
referred to in clause (3) issue direction in accordance with the whole or any part of that
report (Article 344(6).
In Union of India v. Mura Soli, AIR 1977 SC 225 the respondents filed writ petitions in the
High Court for declarations that the President order which requires training of administrative
personnel in Hindi while in service is void. It was contended that Presidential order ceased
to have any effect because the second language commission was not appointed as

required u/Article 344. The Supreme Court held that Presidential order was valid. The power
to appoint commission under Article 344 cannot be said to be exhausted on the expiry of 15
years. The President can use it on more than one occasion. The order continues itself at the
end of 15 years.
Q. 80 Discuss the provisions of different types of emergency under
the Constitution of India?

Ans. The Constitution of India provides for three types of emergency:


A. National Emergency - due to war, external aggression or armed rebellion (Article 352).
B. State Emergency - due to the failure of constitutional machinery in States (Article 356).
C. Financial Emergency - (Article 360).
A. National Emergency - Article 352 provides that if the President is satisfied that a grave
emergency exists whereby the security of India or any part of India is threatened, either by
war or external aggression or armed rebellion, he may make a Proclamation of Emergency
in respect of the whole of India or any part of India as may be specified in the Proclamation.
The Proclamation of Emergency made under clause (1) may be varied or revoked by the
President by a subsequent Proclamation [CI. (2)].
The President shall not issue a Proclamation under clause (1) or a Proclamation varying
such Proclamation unless the decision of the Union Cabinet (i.e. the Council consisting of
the Prime Minister and other Ministers of Cabinet rank appointed under Article 75) that such
a Proclamation may be issued has been communicated to him in writing.
The Proclamation of Emergency must be laid before each House of Parliament and it shall
cease to be in operation at the expiration of one month (prior to the 44th amendment two
months) unless before the expiry of one month it has bee approved by resolutions of both
Houses of Parliament. If the Proclamation of emergency is issued at a time when the Lok
Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the period
of one month referred to above, without approving the Proclamation but the Proclamation
has been approved by the Rajya Sabha, the Proclamation shall cease to operate at the
expiration of 30 days from the date on which the Lok Sabha sits after fresh election, unless
before the expiry of the above period of thirty days a resolution, approving the Proclamation
has been passed by the Lok Sabha [CI.(4)]. A resolution approving the Proclamation must
be passed by special majority, that is by a majority of the total members of each House and

also by a majority of not less then 2/3 of the members present and voting in each House.
Prior to the 44th amendment, such resolution could be passed by Parliament by a simple
majority.
A Proclamation of Emergency once approved by Parliament shall remain in force for a
period of six months from the date of the passing of the second resolution approving in
under clause (4), unless revoked earlier. For the further continuance of the emergency
beyond the period of six months' approval by Parliament would be required every six
months. If the dissolution of the Lok Sabha takes place during the period of six months
without approving the further continuance of emergency, but it has been approved by the
Rajya Sabha, the Proclamation shall cease to operate at the expiry of 30 days after the Lok
Sabha sits after fresh election unless before the expiry of the above period, it is approved
by the Lok Sabha (Cl.5). Here also the resolution is required to be passed by the special
majority referred to above.
The President shall revoke a Proclamation of Emergency or a Proclamation varying such
proclamation if the Lok Sabha passes a resolution disapproving it or disapproving its
continuance. Where a notice in writing signed by not less than 1/10th of the total number of
members of the Lok Sabha have been given their intention to move a resolution for
disapproving the continuance of a Proclamation of Emergency - (a) to the Speaker, if the
House is in session; or (b) to the President, if the House is not is session; a special sitting of
the Lok Sabha shall be held within 14 days from the date on which such a notice is received
by the Speaker or the President for the purpose of considering the resolution (Cls. 7 and 8).
In Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, Bhagwati, J. has held that
there is no bar to judicial review of the validity of a Proclamation of Emergency issued by
the President under Article 352 (1). Merely because a question has a political complexion, it
is no ground why the court should shrink from performing its duty under the Constitution if it
raises an issue of Constitutional determination.
Effects of Proclamation of Emergency - The following are the consequences of the
Proclamation of Emergency.
(1) Extension of Centre's Executive Power (Article 353) - During the operation of a
Proclamation of Emergency the executive power of the Union extends to giving of directions
to any State as to the manner in which the executive power of the State is to be exercised.
The 42nd amendment made a consequential change in Article 353 following the
amendment made in Article 352. It provides that the executive power of the Union to give
directions under clause (a) and the power to make laws under clause (b) shall also extend

to any State other than the State where emergency is in force, if the security of India or any
part of the territory is threatened by activities in or in relation to that part of the territory of
India in which the Proclamation of Emergency is in operation.
(2) Parliament empowered to legislate on State Subjects [Article 353(b)] - While the
Proclamation of Emergency is in operation, the Union Parliament is empowered to make
laws with respect to any of the matters in the State List.
(3) Centre empowered to alter distribution of revenue between the Union and the
State (Article 354) - The Present may, while a Proclamation of Emergency is in operation
by the order after the Financial arrangement between the State and the Union as provided
in Articles 268 to 279. Every such order is to be laid before each House of Parliament and
will come to an end by the end of the financial year in which the Proclamation of Emergency
ceases to operate.
(4) Extension of life of Lok Sabha [Article 83(2)] - While the Proclamation of Emergency
is in operation, the President may extend the normal life of the Lok Sabha by a year each
time upto a period not exceeding beyond six months after Proclamation ceases to operate.
(5) Suspension of fundamental rights guaranteed by Article 19 - (Article 358) provides
for suspension of the six freedoms guaranteed to the citizens by Article 19 of the
Constitution. It says that while a Proclamation of Emergency is in operation nothing in
Article 19 shall restrict the power of the State to make any law or to take any executive
action abridging or taking away the rights guaranteed by Article 19 of the Constitution. It
means that as soon as the Proclamation of Emergency is made the freedoms guaranteed
by Article 19 are automatically suspended.
The (44th Amendment) Act, 1978 - has made two important changes in Article 358 :(i) Article 19 will be suspended only when a proclamation of emergency is declared on the
ground of war, external aggression and not when the emergency is declared on the ground
of armed rebellion; and
(ii) Article 358 will only protect emergency laws from being challenged in the court of law
and not other laws which are unrelated to the emergency. The Supreme Court in M.M.
Pathak v. Union of India, AIR 1973 SC 106 held that the effect of Proclamation of
Emergency on Fundamental rights is that the rights guaranteed by Articles 14 and 19 are
not suspended during emergency but their operation is only suspended. This means that
only the validity of an attack based on Articles 14 and 19 is suspended during the
emergency.

Article 359 empowers the President to suspend the right to enforce fundamental rights
guaranteed by Part III of the Constitution. He may by order declare that the right to move
any court for the enforcement of such of the fundamental rights as may by mentioned in the
order. Constitution (44th Amendment) Act exclude Articles 20 and 21 from such order and
all proceedings pending in any court for the enforcement of such rights shall remain
suspended for the period the Proclamation is in force or for such shorter period as may be
specified in the order. An order made under may extend to the whole or any part of the
territory of India. [Cl. (2)]. An order made under Cl. (1) shall, as soon as possible be laid
before each House of Parliament. [Cl.(3)].
Thus the Constitution (44th Amendment) Act makes two important changes :(1) That the President does not have power to suspend Article 21 during emergency, and
(2) Laws unrelated to emergency can be challenged in a Court of Law.
In A.D.M. Jabalpur v. S. Shukla, 1976 SC 1207 (popularly known as Hebeas corpus case),
the respondent challenged the validity of the Proclamation of Emergency under Article 352.
The main question for the consideration of the Supreme Court was whether in view of the
President order any writ under Article 226 for habeas corpus to inforce the right to personal
liberty of a person detained under the Act on the ground that the order of detention is not in
compliance with the Act. The Supreme Court held that no person has any legal right to
move any writ-petition under Article 226 before a High Court for a habeas corpus or any
other writ or order or direction to challenge the legality of the detention order, on the ground
that the order is not under or in compliance with the Act or is illegal or vitiated by mala fides
factual or legal or is based on extraneous consideration.
The Court, however, refused to follow the ruling in Makhan Singh v. State of Punjab, AIR
1964 SC 381, wherein the Supreme Court had pointed out that if a detenue challenged his
detention on the ground that it violated statutory provisions or the detention is vitiated by
mala fides the challenge could not be barred because of the Presidential order under Article
359 (1).
B. State Emergency - due to the failure of constitutional machinery in States
Failure of Constitutional machinery in State - Article 356 says that if the President, on
receipt of a report from the Governor of a State or otherwise is satisfied that a situation has
arisen in which the Government of the State cannot be carried on in accordance with the
provisions of the Constitution, he may issue a Proclamation. By that Proclamation:
(1) The President may assume to himself all or any of the powers vested in or exercisable
by the Governor to anybody or authority in the State.

(2) The President may declare that the powers of the Legislature of the State shall be
exercised by or under the authority of Parliament.
(3) The President may make such incidental and consequential provisions as may appear to
him to be necessary or desirable for giving effect to the object of Proclamation.
When the Proclamation of Emergency is made under Article 356(1), the powers of the State
Legislature are to be exercised by Parliament. Parliament can confer on the President the
power to make laws for the States. Parliament may also authorise the President to delegate
such powers to any other authority as specified by himself. [Article 357 (1) (a)]. If the Lok
Sabha is not in session the President may authorise expenditure from the Consolidated
Fund of State, pending sanction of such expenditure by Parliament.
The Proclamation issued under Article 356 (1) may be revoked or varied by the President by
a subsequent Proclamation.
It is to be noted that the word "satisfaction" in Article 356(1) does not mean the personal
satisfaction of the Governor but it is the satisfaction of the cabinet. The satisfaction of the
President can, however, be challenged on two grounds that (1) it has been exercised mala
fide (2) based on wholly extraneous and irrelevant grounds, because in that case it would
be no satisfaction of the President.
A proclamation issued under Article 356 shall be laid before each House of Parliament and
shall remain in operation for 'two months' unless before the expiry of that period it has been
approved by both Houses of Parliament [Clause (3) of Article 356]. Any such Proclamation
may be revoked or varied by a subsequent Proclamation. If any such Proclamation is issued
at the time when Lok Sabha is dissolved or the dissolution takes place during the period of
two months and the Proclamation is passed by the Rajya Sabha but not passed by the Lok
Sabha, the Proclamation shall cease to operate at the expiry of 30 days from the date on
which the new Lok Sabha meets after the reconstruction unless before the expiry of 30 days
it has been also passed by the Lok Sabha. If the Proclamation is approved by the
Parliament it will remain in operation of "six months". Parliament may extend the duration of
Proclamation for "six months" at a time but no such Proclamation shall in any case remain
in force for more than three years.
After 44th Amendment of the Constitution in 1978, a new Clause (5) to Article 356, has been
added in place of existing clause (5) which has now been, omitted. This new clause (5)
provide that a resolution for the continuance of the emergency beyond one year shall not be
passed by either House of Parliament unless (a) a proclamation of emergency is in
operation at the time of passing of such resolution, and (b) the Election Commission

certifies that the continuance in force of the proclamation under Article 356 during the period
specified in such resolution is necessary on account of difficulties in holding general
elections to the state legislative Assembly concerned. This means that the extension of the
emergency beyond the period of one year is possible only if the conditions mentioned in
clause (5) are available. Prior to this Amendment, there was no such condition imposed and
the Government could extend the period upto the maximum of three years without sufficient
reasons.
The Constitution (48th Amendment Act, 1984) has again amended clause (5) of Article 356
and inserted a proviso in clause (5) namely "provided that in the case of the proclamation
issued under clause (1) on the 6th day of 1983 with respect to the State of Punjab. The
reference in this clause "to any period beyond the expiry of one year" shall be construed as
reference to "any period beyond the expiry of two years". Under the existing clause (5) the
Presidential proclamation of Oct. 6, 1983, with respect to Punjab, could not continue in force
for more than one year unless "the special circumstances" mentioned therein were satisfied.
This was enacted to meet out the special circumstances prevailing in the State of Punjab
due to Akali agitation. Having regard to the prevailing situation in the state, the continuance
of the proclamation beyond 6th Oct. 1984, was necessary. This amendment makes the
conditions in the existing Article 356 (5) inapplicable in case of the State of Punjab.
In S.R. Bommai v. Union of India, (1994) 3 SCC 1 regarding proclamation of emergency
under Article 356 Supreme Court laid down following guidelines(1) Presidential proclamation dissolving a State Legislative Assembly is subject to judicial
review.
(2) If a State Government works against secularism, President's rule can be imposed.
(3) No wholesale dismissal of opposition ruled States governments when a new political
party assumes power at the Centre.
(4) If President's rule is imposed only on political considerations the Court can even restore
the assembly.
(5) Imposition of President's rule and dissolution of State Assembly cannot be done
together.
(6) State Assembly can be dissolved only after Parliament approves Central rule.
(7) The Supreme Court or a High Court can compel the Union Government to disclose
material on whose basis President's rule is imposed on a State.

(8) The power of the President under Article 356 is a constitutional power, it is not an
absolute power. The existence of material is a pre- condition to form the satisfaction to
impose the President's rule.
C. Financial Emergency. - Article 360 provides that if the present is satisfied that situation
has arisen whereby the financial stability or credit of India or part of the territory thereof is
threatened, he may by a proclamation make a declaration to that effect.
The 44th Amendment makes Article 360 self-contained. It provides that the proclamation of
financial emergency shall cease to be in operation at the expiry of two months unless it has
been approved by both Houses of Parliament. Such a proclamation may be revoked or
varied by the President by a subsequent proclamation. But if the Lok Sabha is dissolved
during the period of two months and resolution is approved by the Rajya Sabha, but not by
the Lok Sabha the proclamation shall cease to operate at the expiry of 30 days from the
date on which the new Lok Sabha sits unless before the expiry of 30 days a resolution
approving proclamation is passed by the Lok Sabha.
During the period when such a proclamation is in operation, the executive authority of the
Union shall extend to the giving direction to any State to observe such canons of financial
propriety as may be specified in the directions and be deemed necessary by the President
for maintaining financial stability and the credit of the State.
Q. 81 Discuss the scope and extent of power of Parliament to amend
the Constitution. Are there any limitation on the amending power of
Parliament?

Ans. Amendment of Constitution - With the constant change in political, social and
financial spheres, Constitution also require amendments to change political society.
Framers of the Indian Constitution were keen to avoid excessive rigidity. They were anxious
to have a document which could grow with growing nation and adapt itself to the changing
need and circumstances of growing people. So the Constitution require some flexibility. But
at the same time, framers of Indian Constitution were also aware that it should not be so
flexible that it would be a playing of the whims and caprices of the ruling party. So a
balanced theory was kept, process of amendment of Constitution has not been made too
rigid nor too flexible. Article 368 of Constitution of India provides the method of amendment.

For the purpose of amendment, various articles of Constitution can be divided into three
categories:(1) Amendment by Simple Majority - Articles that can be amended by Parliament by
simple majority as the required for passing of any ordinary law. The amendments
contemplated in Articles 5, 169 and 239-A, can be made by simple majority. These Articles
are specifically excluded from the purview of the procedure prescribed in Article 386.
(2) Amendment by Simple Majority - Articles of the Constitution which can be amended by
special majority as laid down in Article 368. All constitutional amendments, other than those
referred to above, come within this category and must be effected by a majority of the total
membership of each House of Parliament as well as by a majority of not less than 2/3 of the
members of that House present and voting.
(3) By Special Majority and Ratification by States - Article which require, in addition to
the special majority mentioned above, ratification by not less than 1/2 of the State
Legislatures.
The following provisions require such ratification by the States :
(1) Election of the President - Articles 54 and 55.
(2) Extent of the Executive powers of the Union and States - Articles 73 and 162.
(3) Articles dealing with judiciary, Supreme Court, High Court in the States and Union
territories - Articles 124 to 147, 214 to 231, 241.
(4) Distribution of Legislative powers between the Centre and the State - Articles 245 to
255.
(5) Any of the Lists of the VIIth Schedule.
(6) Representation of States in Parliament IVth Schedule.
(7) Article 368 itself.
Procedure for Amendment - A Bill to amend the Constitution may be introduced in either
House of Parliament. It must be passed by each House by a majority of the total
membership to that House and by a majority of not less than 2/3 of the members of that
House present and voting. When a Bill is passed by both Houses it shall be presented to
the President for his assent who shall give his assent to Bill and thereupon the Constitution
shall stand amended. But a Bill which seeks to amend the provisions mentioned in Article
368 requires in addition to the special majority mentioned above the ratification by the 1/2 of
the States.

The question whether amendment of fundamental rights are covered by the proviso to
Article 368, came for consideration inShankari Prasad v. Union of India, AIR 1951 SC
455. In this case, validity of the First Amendment which inserted Article 31-A and 31-B, was
challenged. The Supreme Court held that power to amend the Constitution including the
fundamental rights, was contained in Article 368 and that the word "Law" in Article 13(2)
includes only an ordinary law and not Constitutional amendments. Therefore, a
Constitutional amendment will be valid even if it abridges or takes away any of the
fundamental rights.
Same line of approach was followed in Sajjan Singh v. State of Rajasthan, AIR 1965 SC
845 in which the validity of seventeenth Amendment of the Constitution was challenged.
Supreme Court approved the majority judgement given in Shankari Prasad case, that
"amendment of the Constitution" means amendment of all the provisions of the Constitution.
But in Golak Nath v. State of Punjab, AIR 1967 SC 1643, Supreme Court overruled the
decisions of Shankari Prasad and Sajjan Singh cases and held that Parliament had no
power to amend Part III Of the Constitution so as to abridge or take away the fundamental
rights.
The Constitution (24th Amendment Act, 1971) was passed to remove the difficulties created
by the decision of Golak Nath case. This amendment provides that Article 13 does not
include the amendment of the Constitution made under Article 368. It added a new subclause in Article 368 which provides that "notwithstanding anything in this Constitution,
Parliament may, in exercise of constituent power, amend by way of addition, variation, or
repeat any provision of the Constitution."
The Constitution (24th Amendment) Act, 1971 was passed to remove the difficulties created
by Golak Nath's case. The (24th Amendment) Act, 1971, provides that Article 13 does not
include the amendment of the Constitution made under Article 368. It added a new subclause in Article 368 which provides that 'notwithstanding anything in this Constitution,
Parliament may, in the exercise of constituent power amend by way of addition, variation or
repeal any provision of the Constitution'.
The validity of this Amendment was again challenged in Kesawanand v. State of Kerala,
AIR 1973 SC 1461. In this case the Supreme Court by majority overruled the Golak Nath's
case and held that Article 368, even before the (24th Amendment) contained the power as
well as the procedure of the amendment. As regards the scope of the amending power
contained in Article 368 the court said that the word 'amendment' has been used in various
places to mean different things. In Article 368, it means any addition or change in any of the

provisions of the Constitution. The fundamental rights cannot be abrogated, but they can be
amended reasonably. The court further said that every part of the Constitution can be
amended provided in the result the basic feature of the Constitution remains the same.
The Constitution (42nd Amendment) Act, 1976 - To remove the difficulties created by the
Supreme Court decision in Kesavanand Bharti v. State of Kerala, the Constitution (42nd
Amendment) Act, 1976 has added two new clauses (4) and (5) to Article 368 of the
Constitution. Clause (4) provides that "no constitutional" amendment (including the
provision of Part III) or purporting to have been made under Article 368 whether before or
after the commencement of the Constitution (42nd Amendment) Act, 1976 shall be called in
any court on any ground. Clause (5) declares that there shall be no limitation whatever on
the constituent power of Parliament to amend by way of addition, variation, or repeal the
provisions of the Constitution under this Article.
In Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, the Supreme Court held Cl. (4)
and Cl. (5) of Constitution 368 as void because through these clauses all limitations on the
amending power of Parliament were removed.
The court held that Parliament cannot have unlimited power to amend the Constitution.
"Limited amending power" is the basic feature of the Constitution. The court, however, held
that the doctrine of basic structure is to be applied only in judging the validity of
amendments to the Constitution and it does not apply for judging the validity of ordinary
laws made by Legislature.
Q. 82 Write Short note on :
(a) Concept of Basic Structure
(b) Doctrine of Judicial Review

Ans. (a) Concept of Basic Structure Theory of Basic Structure : A limitation on


Amending power - The validity of the Constitution (24th Amendment) Act, 1971, was
challenged in Keshvanand Bharati v. State of Kerala, AIR 1973 SC 1461, popularly
known as the 'Fundamental Right's case the petitioners had challenged the validity of the
Kerala Land Reforms Act 1963. But during the pendency of the petition the Kerala Act was
amended in 1971 and was placed in the Ninth Scheduled by the 29th Amendment Act. The
petitioner were permitted to challenge the validity of Twenty Fourth, Twenty Fifth and Twenty
Ninth Amendment to the Constitution also. The question involved was as to what was the

extent of the amending power conferred by Article 368 of the Constitution? On behalf of the
Union of India it was claimed that amending power was unlimited and short of repeal of the
Constitution any change could be effected. On the other hand, the petitioner contended that
the amending power was wide but not unlimited. Under Article 368 Parliament cannot
destroy the "basic feature" of the Constitution.
The Court by majority overruled the Golak Nath's case which denied Parliament the power
to amend fundamental rights of citizens. The majority held that Article 368 even before the
24th Amendment contained the power as well as the procedure of amendment. The 24th
amendment merely made explicit what was implicit in the unamended Article 368-A.
As regards the scope of amending power contained in Article 386, six judges held that there
are inherent or implied limitations on the amending power of Parliament and Article 368
does not confer power to amend the Constitution so as to damage or destroy the essential
elements or basic features of the Constitution.
The court by majority of 7 to 6 held that the Parliament has wide powers of amending the
Constitution and it extends to all the Articles, but the amending power is not unlimited and
does not include the power to destroy or abrogate the 'basic feature' or 'framework' of the
Constitution.
What is the basic structure ? What then are the essentials of the basic structure of the
Constitution ? Although the Judges enumerated certain essentials of the basic structure of
the Constitution, but they also made it clear that they were only illustrative and not
exhaustive. They will be determined on the basis of the facts in each case, According to
Sikri, C.J., the basic structure of the Constitution consists of the following features: (1)
Supremacy of the Constitution, (2) Republican and democratic forms of the Governments,
(3) secular character of the Constitution, (4) Separation of powers between the Legislature,
the Executive and the Judiciary, (5) Federal character of the Constitution.
In Indira Nehru Gandhi v. Raj Narayan, AIR 1975 SC 2299, the Supreme Court applied
the theory of basic structure and struck down Cl.(4) of Article 329-A. which was inserted by
the Constitution (39th Amendment) Act, 1975 on the ground that it was beyond the
amending power of Parliament as it destroyed the 'basic feature' of the Constitution.
The Supreme Court has added the following features as basic features of the Constitution
to the list of basic features laid down in the Keshavananda Bharati's case :
1. Rule of law.
2. Judicial Review.
3. Democracy, which implies free and fair Election.

In Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, Supreme Court has held that
the following are that basic features of the Constitution:
1. limited power of Parliament to amend the Constitution;
2. harmony and balance between fundamental rights and directive principles;
3. fundamental rights in certain cases;
4. power of judicial review in certain cases.
42nd Amendment and Article 368 - After the decisions of the Supreme Court in
Keshavananda Bharati and Indira Nehru Gandhi cases the Constitution (42nd Amendment)
Act, 1976, was passed which added two new clauses, namely, clauses (4) and (5) to Article
368 of the Constitution. Clause (4) provided that "no constitutional amendment (including
the provision of Part III) or purporting to have been made under Article 368 whether before
or after the commencement of the Constitution (42nd Amendment) Act, 1976 shall be called
in any court on any ground. Clause (5) removed any doubts about the scope of the
amending power. It declared that there shall be no limitation whatever on the constituent
power of Parliament to amend by way of addition, variation or repeal of the provisions of the
Constitution under this Article.
In Minerva Mills v. Union of India, AIR 1980 SC 1789, the Supreme Court by 4 to I
majority struck down clauses (4) and (5) of Article 368 inserted by the 42nd Amendment, on
the ground that these clauses destroyed the essential feature of the basic structure of the
Constitution. Limited amending power is a basic structure of the Constitution.
(b) Doctrine of Judicial Review In most of the countries with a written Constitution, the
judiciary performs the role of an authoritative expounder of the Constitution. This role of the
judiciary stems from the feeling that a system based on written Constitution can hardly be
effective in practice without an authoritative, independent and impartial arbiter of
Constitutional issues and to check power being exercised by a governmental organ which is
not sanctioned by the Constitution.
The Indian Constitution, however, explicitly establishes the doctrine of judicial review. The
relevant Articles are : 13, 32, 131-136, 143, 226 and 246. The doctrine of judicial review is
thus firmly rooted in India and judiciary has many a time enunciated it. InMadras v. V.G.
Row, AIR 1952 SC 196 the Supreme Court has stated that our Constitution contains
express provisions for Judicial review of legislation as to its conformity with the Constitution.
Similarly, in A.K. Gopalan v. State of Madras, AIR 1950 SC 27, the Supreme Court
declared, "In India it is the Constitution that is supreme and that a statute law to be valid,
must in all cases, be in conformity with the constitutional requirements and it is for judiciary

to decide whether any enactment is constitutional or not". The court further held, "that in so
far as there is any limitation on the legislative power, the Court must, on a complaint being
made to it, scrutinize and ascertain whether such limitation has been transgressed and if
there have been any transgression, the court will courageously declare the law
unconstitutional, for the court is bound by its Oath' to uphold the Constitution."
Rule of literal Interpretation - The basic approach of the Indian judiciary has been
interpret the Constitution literally, like an ordinary legislative enactment. This is known as
positivist approach. In Chiranjit Lal v. Union of India, AIR 1951 SC 56, the Supreme Court
has laid down the principle in these words, "In interpreting the provisions of our Constitution,
we should go by the plain words used by the Constitution makes." In interpreting the
Constitution, the courts in India have mostly applied the same principles as are applicable in
the construction of a statute. This has been the dominant approach, though at times the
Supreme Court has taken care to emphasise that the Constitution must not be construed in
any narrow and pedantic sense.
The principle of broad and liberal interpretation has been consistently applied to the
construction of legislative entries in three lists. The entries are to be given a broad sense
beneficial to the widest possible amplitude of powers and a narrow and restricted
Constitution. They include within their scope and ambit all ancillary matters which
legitimately come within the topics mentioned therein.
Principle of harmonious Constitution -The Constitution should be so interpreted so as to
give effect to all its parts and the presumption should be that no conflict or repugnancy was
intended by the framers between the various provisions of the Constitution. It is, therefore,
laid down that in case there are provisions in the Constitution which cannot be reconciled,
the provisions should be so interpreted that if possible, effect should be given to both. That
is what is known as the rule of harmonious construction. This rule is used to resolve the
conflict between the various provisions of the Constitution while interpreting the Constitution
for its judicial review