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LL.B. Semester - II
109 - CONSTITUTIONAL LAW- II
CONTENTS
SYLLABUS :
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Go To CONTENTS.
Module-1 ANSWERS :
Q : 2012, 4, 5 : Discuss in detail the powers of the president of india.
Ans : Part V of the Constitution, under Chapter I, lists out the
qualification, election and impeachment of the President of India. The
President of India is the head of state of the Republic of India. The
President is the formal head of the executive of India and is also the
commander-in-chief of the Indian Armed Forces. Although Article 53 of
the Constitution of India states that the President can exercise his or
her powers directly or by subordinate authority, with few exceptions,
all of the executive authority vested in the President are, in practice,
exercised by the Council of Ministers (CoM).
Article 52 : The President of India
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It is not true that the President of India has got only limited
powers. Indian President is not merely a ceremonial head unlike
many other countries. Though Indian President often acts based on
the advice of Council of Ministers, he has many discretionary
powers where he takes decisions based on his own convictions.
President of India enjoys several veto powers over bills present in
the parliament, and can even summon the PM to give him
explanations on certain matters.
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Q : 2014 : Discuss the position of president and governor under the indian
constitution.
Ans :
<write on position of president>
<write on position of governor>
Discuss how governor is an 'agent' of union of India :
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Go To Module-1 QUESTIONS.
GOVERNOR :
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Powers of Governor : With every job there are powers attached. The
powers of the Governor are conferred by the Constitution to enable
him/her to perform his/her functions effectively as a Head of the
State. The powers of the Governor can be categorized as
(A) executive powers,
(B) legislative powers,
(C) financial powers,
(D) discretionary powers.
(E) Judicial Powers
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is true that the Governor is a nominal head and the real powers are
exercised by the Council of Ministers headed by the Chief Minister. But
it will not be correct to say that the Governor is just a constitutional or
ceremonial head. He/ She can exercise his/her powers effectively
under certain circumstances, especially when there is political
instability in the State. Since he/she is a link between the Centre and
the State, he/she becomes very effective, if the central government
sends directions to the State government. The discretionary powers
also make the Governor to act as a real executive in particular
circumtances.
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Go To Module-1 QUESTIONS.
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Under Art. 110 it is clear, that a bill is a money bill only if it relates
to all or any of the six Counts specified in the article.
Whether or not a bill is a money bill is finally decided by the
Speaker of the Lok Sabha. A bill which the Speaker certifies to be a
money bill is a money bill and the decision of the Speaker cannot be
questioned
Thus all financial bills are not money bills. Only these financial bills
as are certified by the Speaker to be money bills are money bills.
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both the Houses. If the Lok Sabha does not accept any amendment
suggested by the Rajya Sabha. The bill is deemed to have been
passed by both the Houses of the Parliament in its original form.
Thus the Rajya Sabha can at best delay a money bill by 14
days. It can never kill a money bill, like the U. S. Senate. The
delaying power of the House of Lords in England is one
month.
After the bill is finally passed by the Lok Sabha it is presented to
the President for his assent. The President however cannot withhold
assent to a money bill as, such bills are introduced in the
Parliament with the previous assent of the President.
Most important Money-Bill :
Go To Module-1 QUESTIONS.
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Go To Module-1 QUESTIONS.
Legislative council
Legislative assembly
discuss following for both houses ----- composition tenure
qualification/ removal of members/ defection
chairman/speaker powers /privileges/ immunities
functions position vs the other house
Go To Module-1 QUESTIONS.
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Outline of SC jurisdiction :
(1) Original Jurisdiction (Art-32, 131, 143)
(A) Art-32 writ jurisdiction fundamental rights
(B) Art-131 disputes between center-state
(C) Art-143 - Advisory Jurisdiction - reference from President
(2) Appellate Jurisdiction (Art-132-137)
(A) Art-132 - Appellate Jurisdiction Constitutional
(B) Art-133 - Appellate Jurisdiction - Civil
(C) Art-134 - Appellate Jurisdiction - Criminal
(D) Art-136 - Special Leave to appeal by SC
(E) Art-137 - Power to review its judgement
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Art. 143
1. If at any time it appears to the president that a
question of law or fact has arisen or is likely to arise and
that the question is of such public importance that
expedient opinion of the SC is required, then he may refer
it to the SC. The SC, after such hearing as it may deem
fit, will report back to the president.
2. the SC is can be asked to give opinion even on matters
not permitted under art 131.
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Go To Module-1 QUESTIONS.
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Art 226 imposes two limits on HC's writ. First, it can run only
in the territorial jurisdiction of the High Court and secondly
the person or authority must lie in that jurisdiction.
In the case of Election Commision of India vs Venkata Rao,
AIR 1975 SC held that Madras High Court cannot issue a writ
to ECI because it is based in New Delhi and so is out of its
jurisdiction. The law commission recommended that these
are serious limitations and they defeat the very purpose of
this article. So it was amended by 15th amendment in 1963.
High Court can now issue a writ even to a central authority if
the cause of action in whole or part arises in its jurisdiction.
Discretionary Remedy - Not to be exercised if alternate remedy is
available :
The remedy available in 226 is a discretionary remedy and
the High Court has the discretion to accept or refuse a
petition. In general, if a remedy is available elsewhere, writs
under 226 are discouraged. However, this does not mean
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CONCLUSION :
Go To Module-1 QUESTIONS.
Differences :
While Supreme Court has power to issue writs via article 32, High
Courts have this power via article 226.
While Supreme Court has power to issue writs for enforcement of
ONLY Fundamental rights, High Courts can issue writs for
enforcement of fundamental rights as well as any other matter also.
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Go To Module-1 QUESTIONS.
Go To Module-1 QUESTIONS.
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Go To Module-1 QUESTIONS.
Module-2 QUESTIONS :
Q : 2012, 4, 5 : Explain : procedure for amendment of constitution under
Art-368.
Q : 2013 : Explain basic structure doctrine with case law.
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Go To CONTENTS.
Module-2 ANSWERS :
Q : 2012, 4, 5 : Explain : procedure for amendment of constitution under
Art-368.
Q : 2013 : Explain basic structure doctrine with case law.
Ans :
Read answer from notes for 108 Constitutional Law I ----> Module-1 Q
: 2015 : Explain : basic structure theory to the preamble / power of
parliament to amend the constitution.
Go To Module-2 QUESTIONS.
Module-3 QUESTIONS :
Q : 2012, 3, 4, 5 : What is meant by Emergency? When can there be
proclamation of emergency? What is the effect of proclamation of
emergency?
Q : Discuss : Effect of emergency declaration on Fundamental Rights :
Q : 2013 : Explain : failure of constitutional machinery in state
Q : 2012 : Explain the case of S R Bommai -vs- Union of India.
Q : 2013, 5 : Explain : S R Bommai -vs- Union of india
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Go To CONTENTS.
Module-3 ANSWERS :
Q : 2012, 3, 4, 5 : What is meant by Emergency? When can there be
proclamation of emergency? What is the effect of proclamation of
emergency?
Ans :
http://www.legalservicesindia.com/article/article/position-of-
fundamental-rights-during-emergency-589-1.html
Intro : Emergency (Art-352 to 360) & fundamental rights :
When the Constitution of India was being drafted, India was passing
through a period of Stress and strain. Partition of the country, communal
riots and the problem concerning the Merger of princely states including
Kashmir. Thus, the Constitution-makers thought to Equip the Central
Government with the necessary authority, so that, in the hour of
emergency, When the security and stability of the country is threatened
by internal and external threats. Therefore, some emergency provisions
were made in Constitution to safeguard and protect the security,
integrity and stability of the country and effective functioning of State
Governments.
1. NATIONAL EMERGENCY :
As it is very clear from the opening words of the above stated
heading,national emergency deals with constitutional provisions to be
applied,whenever there are inbalance in the society in the whole
country and not in a particular or specific region or state.
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Discussion :
Provisions have been made in the Constitution for dealing with
extraordinary situations that may threaten the peace, security,
stability and governance of the country or a part thereof.
The Constitution of India has provided for imposition of emergency
caused by war, external aggression or internal rebellion. This is
described as the National Emergency. This type of emergency can
be declared by the President of India if he is satisfied that the
situation is very grave and the security of India or any part thereof
is threatened or is likely to be threatened either, by war or external
aggression by armed rebellion within the country. The President can
issue such a proclamation even on the ground of threat of war or
aggression. According to the 44th Amendment of the Constitution,
the President can declare such an emergency only if the Cabinet
recommends in writing to do so.
Art-352 phrase - ". . . the security of India or any part of the
territory thereof is threatened . . ." this statements talks about the
situation when either the country wholly or any part of the
country,but that would not be considered as state emergency,also
this kind of proclamation may be made before the actual occurrence
of such war, external aggression or armed rebellion.
Art-352 phrase - armed rebellion was not there in the
constitutional provisions from the very beginning. Until 1978 an
emergency could be declared because of war, external aggression
or internal disturbance, that was too vague and broad in sense.
The 44th constitutional amendment substituted the word armed
rebellion for internal disturbance.
The intention underlying the substitution of the words internal
disturbance by armed rebellion is to limit the invocation of Art-
352 only to more serious situations where there is a threat to the
security of the country.
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2. STATE EMERGENCY
Art-356 Provisions in case of failure of constitutional machinery in
States :
(1) 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 this Constitution, the President
may by Proclamation
(a) assume to himself all or any of the functions of the
Government of the State and all or any of the powers vested in
or exercisable by the Governor or any body or authority in the
State other than the Legislature of the State;
(b) declare that the powers of the Legislature of the State shall
be exercisable by or under the authority of Parliament;
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Discussion :
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Conclusion :
In view of the above facts, Article 356 has become very
controversial. In spite of the safeguards provided by the 44th
Amendment Act, this provision has been alleged to be misused by
the Union Government. That is why, there is a demand either for its
deletion or making provision in the Constitution to restrict the
misuse of this Article.
The Sarkaria Commission which was appointed to review the
CentreState relations also recommended that,
Article 356 should be used only as a last resort.
the State Legislative Assembly should not be dissolved unless
the proclamation is approved by the Parliament.
all possibilities of forming an alternative government should be
fully explored before the Centre imposes emergency in a State
on grounds of breakdown of Constitutional machinery.
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The Supreme Court held in the Bommai case that the Assembly
may not be dissolved till the Proclamation is approved by the
Parliament. On a few occasions such as when Gujral Government
recommended use of Article 356 in Uttar Pradesh, the President
returned the recommendation for reconsideration. The Union
Government took the hint and dropped the proposal.
3. FINANCIAL EMERGENCY :
Art-360 : Provisions as to financial emergency :
(1) If the President is satisfied that a situation has arisen whereby
the financial stability or credit of India or of any part of the territory
thereof is threatened, he may by a Proclamation make a declaration
to that effect.
(2) . . . (4)
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Go To Module-3 QUESTIONS.
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Limitations : However,
such order are to be placed before Parliament as soon as possible for
its approval.
Art-20 and Art-21 can not be suspended IN ANY CASE.
Discussion :
Suspension of fundamental rights during emergency is a matter of
debate and conflicts of opinion ab initio.
it would be a mistake to treat human rights as though there were a
trade-off to be made between human rights and goals such a security
and development.
Fundamental rights are moral rights which have been made legal by
the Constitution. These constitutional rights which are fundamental in
character represent rights in the strong sense. They are distinct from
ordinary legal and constitutional rights because they may not be
restricted on ground of general utility.
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The very essence of these rights is that they are guaranteed even if
the majority would be worse off in doing so, that fundamental rights
are necessary to protect the dignity of an individual. Invasion of these
rights is a very serious matter and it means treating a man as less
than a man. This is grave injustice and it is worth paying the
incremental cost in social policy or efficiency that is necessary to
prevent it.
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Go To Module-3 QUESTIONS.
Background :
Article 356 deals with imposition of President's Rule over a State of
India. When a state is under President's Rule, the elected state
government (led by the Chief Minister and the Council of Ministers)
is suspended, and administration is conducted directly by the
Governor of the state. The Governor is an appointee of the
President and thus, effectively, a functionary of the Union
Government (the central or federal government). Thus imposition of
President's Rule negates the federal character of the Indian political
system, where administration usually is shared between the Union
and State governments. It also militates against the democratic
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The Facts of the case : S.R. Bommai v. Union of India came before the
bench of 9 judges (consisting of Kuldip Singh, P. B. Sawant, Katikithala
Ramaswamy, S. C. Agarwal, Yogeshwar Dayal, B. P. Jeevan Reddy, S.
R. Pandian, A. M. Ahmadi, J. S. Verma) under the following
circumstances :
In 1988, the Janata Party being the majority party in the State
Legislature had formed Government under the leadership of S.R.
Bommai. In September 1988, the Janata Party and Lok Dal merged
into a new party called Janata Dal. The Ministry was expanded with
addition of 13 members.
Within two days thereafter, one K.R. Molakery, a legislator of Janata
Dal defected from the party. He presented a letter to the Governor
along with 19 letters, allegedly signed by legislators supporting the
Ministry, withdrawing their support to the Ministry.
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Judgment on 7 contentions :
(1) Is Presidential proclamation justiciable? :
While dealing with the question as to whether the Presidential
Proclamation under Article 356 was justiciable all the judges
were unanimous in holding that the presidential proclamation
was justiciable. The Supreme Court held that the proclamation
under Article 356(1) is not immune from judicial review. The
validity of the Proclamation issued by the President under Article
356(1) is judicially reviewable to the extent of examining
whether it was issued on the basis of any material at all or
whether the material was relevant or whether the Proclamation
was issued in the malafide exercise of the power. The Supreme
Court or the High court can strike down the proclamation if it is
found to be malafide or based on wholly irrelevant or extraneous
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The Principles laid down by Supreme Court : The SC laid down certain
guidelines so as to prevent the misuse of A356 of the constitution.
The majority enjoyed by the Council of Ministers shall be tested on
the floor of the House.
Centre should give a warning to the state and a time period of one
week to reply.
The court cannot question the advice tendered by the CoMs to the
President but it can question the material behind the satisfaction of
the President. Hence, Judicial Review will involve three questions
only:
a. Is there any material behind the proclamation
b. Is the material relevant.
c. Was there any mala fide use of power.
If there is improper use of A356 then the court will provide remedy.
Under Article 356(3) it is the limitation on the powers of the
President. Hence, the president shall not take any irreversible
action until the proclamation is approved by the Parliament i.e. he
shall not dissolve the assembly.
A356 is justified only when there is a breakdown of constitutional
machinery and not administrative machinery
A356 shall be used sparingly by the centre, otherwise it is likely to
destroy the constitutional structure between the centre and the
states. Even Dr. Ambedkar envisaged it to remain a 'dead letter' in
the constitution.
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within which Article 356 has to function. The Supreme Court said
that Article 356 is an extreme power and is to be used as a last
resort in cases where it is manifest that there is an impasse and the
constitutional machinery in a State has collapsed. The views
expressed by the court in this case are similar to the concern
showed by the Sarkaria Commission.
The principles laid down in this case put a bar on the dismissal of
the state government by the centre for political gains.
It was in this case that the court firmly laid down certain provision
relating to Presidential proclamation issued Under Article 356.
The Court held that Presidential proclamation under Article 356 is
not absolute and the power conferred by Article 356 on president is
conditioned power.
The Supreme Court held that presidential proclamation is not
immune from judicial review.
Moreover, if the presidential proclamation is held unconstitutional,
the legislature dissolved by the presidential proclamation can be
revived.
The court rejected this contention that Articles 74(2) bars the court
from inquiring about the material on the basis of which the
proclamation is issued.
Conclusion :
In spite of such bold and illustrious judgement delivered by the
Supreme Court, people criticized that the Court took such a long
time to deliver the verdict and allowed, the illegality to be
perpetuated and ultimately deprive the citizens of those states to
be governed by their chosen representative.
It was also criticized that the concept of secularism had been
misinterpreted only regard to Hindu fundamentalism.
Still, the judgement delivered by the Supreme Court put a check on
arbitrary dismissal of state governments in future and strengthen
the federal structure of Indian polity which had hitherto been
damaged on several occasions particularly when different political
parties were in power at the Centre and the State.
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Go To Module-3 QUESTIONS.
Module-4) Miscellaneous :
4..1)Article 31-B & Schedule IX, Doctrine of Pleasure,
Constitutional safeguards to Civil Servants, Attorney General,
Advocate General, Chief Election Commissioner and Election
Commission, Official Language
4..2)Freedom of Trade, Commerce and Intercourse
4..3)Special provisions relating to Jammu and Kashmir
4..4)Relations between Union and State : Legislative,
Administrative and Financial, Schedule VII
4..5)Consolidated funds, Contingency Funds, CAG, Public Service
Commission
Module-4 QUESTIONS :
Q : 2012 : Explain : Significance of Ninth Schedule and importance of Art-
31B.
Q : 2013 : Explain : Doctrine of pleasure.
Q : 2013 : Explain : Attorney general
Q : 2012, 4 : Explain : Advocate General for the state.
Q : 2013 : Explain : Chief Election Commissioner.
Q : 2012, 5 : Explain : Election commission.
Q : 2012 : Explain : State official language and languages.
Q : 2012, 4, 5 : Explain : provisions relating to inter-state trade and
commerce under the constitution.
Q : 2013 : Explain : Special provisions relating to Jammu and Kashmir.
Q : 2012, 4, 5 : Explain : relations between state and union - - -
administrative, legislative and financial.
Q : Explain : Centre-State Relations: Division Of Powers Between The
Union And The State Governments
Q : 2014 : Explain : Union list, state list and concurrent list (schedule
VII)
Q : 2013 : Explain : Consolidated funds.
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Go To CONTENTS.
Module-4 ANSWERS :
Q : 2012 : Explain : Significance of Ninth Schedule and importance of Art-
31B.
Ans :
http://www.yourarticlelibrary.com/essay/judicial-review-and-the-ninth-
schedule-of-the-indian-constitution/24982/
http://www.legalservicesindia.com/article/article/emergence-of-article-
31-a-b-and-c-and-its-validity-1435-1.html
Background : Constitution of India as adopted in 1950, had "Right to
Property" as a fundamental right. This coupled with Art-13 made it
impossible for Nehru Government to pursue its socialist agenda by
acquiring land from zamindars and redistribute the same to landless
poors. Hence Art-31B and Schedule-IX were added through
Constitutional (first) amendment Act 1951.
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The 34th amendment in 1974 added 20 more land tenure and land
reforms laws enacted by the states.
In 1975, Indira Gandhis infamous abuse of executive power leading
up to emergency saw the 39th amendment adding certain central
enactments.
1976 saw the 40th amendment even more to the 9th schedule.
The 47th amendment in 1984 added more,
in 1990 the 66th amendment gave more protection to land ceiling
acts.
The 76th amendment to accommodate Tamil Nadu Governments
legislation to provide for reservations to the level of 69 percent for
SC/ST and OBCs followed.
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Conditions of service :
Opening words of Article 309 subject to the provisions of this
Constitution, makes it clear that the conditions of service whether laid
down by the legislature or prescribed by the rules, must conform to
the mandatory provisions of the Constitution as laid down in Articles
310, 311 and 320 or in
These rules should also satisfy such conditions as equal pay for equal
work under Article 39 (d). However, the doctrine of pleasure may be
invoked by the government in public interest after a public servant has
attained the age of 50 years or has completed 25 years service.
This is constitutionally permissible under F.R. 56. The power to frame
rules under Article 309 includes the power to amend or alter the rules
with retrospective effect subject to the principle that the benefits
acquired under the existing rules cannot be taken away by an
amendment with retrospective effect. This view has been expressed
by the Supreme Court in T.K. Kapur v. State of Haryana, 1986 Supp.
S.C.C. 584.
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Go To Module-4 QUESTIONS.
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Ans :
read pg-246-249 of Jhabvala
Go To Module-4 QUESTIONS.
Go To Module-4 QUESTIONS.
Historical background :
American experience : According to some writers, it is the Commerce
clause of the American Constitution which made the United States one
united nation. For, under the Commerce clause, the national
government of the United States assumed enormous powers of
regulating a wide variety of activities of the citizens and of the
constituent States.
But the process has involved an unending legal conflict which is still
raging between the Union and the State even after two centuries of
the working of the Constitution.
Australian experiance : In Australia too, the situation is not happy
owing to the omnibus character of the right to inter-State trade and
commerce that is embodied in the Constitution.
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Thus the framers of the Indian Constitution had the benefit of these
experiences at the time of drafting the provisions dealing with inter-State
trade and commerce as embodied in the Constitution.
Objectives :
From the very beginning of its deliberations, the Constituent Assembly
was keen to ensure the freedom of inter-State trade and commerce
through out the Union. In fact, one of the primary purposes of federal
Union itself is the establishment of freedom of commerce.
This is why Articles 301 to 307 form a well-though-out scheme and, in
the opinion of one of the members of the Drafting Committee, "are
about as nearly perfect as human ingenuity could possibly make
them."
The objective behind the principle of freedom of inter-State commerce
is that within the country trade and commerce should develop to the
largest possible extent and it should not be hindered by artificial
barriers and restrictions imposed by the various States of the
federation.
Accordingly, the Constitution has taken into account the largest interests
of India as a whole as well as the interests of particular States and the
wide geography of this country in which the interests of one region differ
from those of another.
Art-301 : Freedom of trade, commerce and intercourse : Subject to the
other provisions of this Part, trade, commerce and intercourse
throughout the territory of India shall be free.
Speaking on issue Ambedkar said: "I should also like to say that
according to the provisions contained in this part, it is not the intention
to make trade and commerce absolutely free, that is to say, deprive both
Parliament and States of any power to depart from the fundamental
provision that trade and commerce shall be free. The freedom of trade
and commerce is subject to certain limitations which may be imposed by
Parliament or by the Legislatures of the various States, subject to the
fact that the limitations contained in the power of Parliament is confined
to cases arising from scarcity of goods in one part of the territory of
India, and in the case of the States it must be justified on the ground of
public interest."
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that Abdullah will give up the demand for plebiscite and special status
of Jammu and Kashmir will continue; it would no longer remain a
temporary measure.
But the agreement could not be implemented owing to the differences
and the Order of the President could not be issued.
Jammu and Kashmir is the only state in the country having a
Constitution of its own within the framework of India Union.
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(iii) The residuary power in respect of J&K rests with the State
Government and not with the Union Government.
(iv) The Fifth Schedule pertaining to the administration and control of
Scheduled Areas and Scheduled Tribes and the Sixth Schedule
pertaining to the administration of Tribal Areas are not applicable to
the State of J&K.
(v) The provisions of the Indian Constitution regarding denial of
citizenship to person who migrated to Pakistan do not apply to
Permanent residents of J&K who after having migrated to the territory,
now included in Pakistan, return to the territory of that State or
permanent return issue by or under the authority of any law made by
the Legislature of that State and even such person shall be deemed to
be a citizen of India.
(vi) Certain special rights have been granted to the permanent
residents of the State of J&K with regard to employment under the
State; acquisition of immovable property in the State; settlement of
the State etc.
(vii) No proclamation of emergency made by the President under
Article 352 on the ground of armed rebellion shall have effect on the
State of J&K without the State Governments concurrence.
(viii) The Union has no power to suspend the Constitution of the State
on the ground of failure to comply with the direction given by the
Union. In the event of the breakdown of the Constitutional machinery
in the State, Governors Rule is to be imposed. However, in 1964,
Articles 356 arid 357 was extended to that State in the event of a
breakdown of Constitutional machinery to take over the administration
of that State.
The Parliament was also provided the power to legislate for the
State during emergency under Article 356. The first occasion when
Presidents Rule under Article 356 was imposed in J&K was in 1986
to follow Governors Rule.
The Union has no power to make a proclamation of financial emer-
gency in the State.
(ix) The provisions of Part IV relating to the Directive Principle of State
Policy do not apply to J&K.
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e.g., (i) alteration of the name of territories of the State (Art. 3).
(ii) International treaty or agreement affecting the disposition of
any part of the territory of the State (Art. 253).
Similar fetters have been imposed upon the executive power of the
Union to safeguard the autonomy of the State of Jammu and
Kashmir, a privilege which is not enjoyed by the other States of the
Union, thus,
(i) No Proclamation of Emergency made by the President under
Art. 352 on the ground of internal disturbance shall have effect in
the State of Jammu & Kashmir, without the concurrence of the
Government of the State,
(ii) Similarly, no decision affecting the disposition of the State
can be made by the Government of India, without the consent of
the Government of the State,
(iii) The Union shall have no power to suspend the Constitution of
the State on the ground of failure to comply with the directions
given by the Union under Art. 365. In the event of a breakdown
of the constitutional machinery as provided by the State
Constitution, it is the Governor who shall have the power, with
the concurrence of the President, to assume to himself all or any
of the functions of the Government of the State, except those of
the High Court,
(iv) The Union shall have no power to make a Proclamation of
Financial Emergency with respect to the State of Jammu and
Kashmir under Art. 360
(v) Articles 356-357 relating to suspension of constitutional
machinery have been extended to J & K by the Amendment
Order of 1764.
Fundamental Rights and the Directive Principles :
The provisions of Part IV of the Constitution of India relating to the
Directive Principles of State Policy do not apply to the State of
Jammu & Kashmir. The provisions of Art. 19 are subject to special
restrictions for a period of 25 years. Art. 19(1)(f) and 31(2) have
not been omitted, so that the fundamental right to property is still
guaranteed in this State.
Separate Constitution for the State :
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While the Constitution for any of the other States of the Union of
India is laid down in part VI of the Constitution of India, the State
of Jammu & Kashmir has its own Constitution (made by a separate
Constituent Assembly and promulgated in 1957).
Procedure for Amendment of State Constitution:
While an Act of Parliament is required for the amendment of any of
the provisions of the Constitution of India the provisions of the
State Constitution of Jammu & Kashmir (excepting those relating to
the relationship of the State with the Union of India) may be
amended by an Act of the Legislative Assembly of the State, passed
by a majority of not less than two-thirds of its membership; but its
such amendment seeks to affect the Governor or the Election
Commission, it shall have no effect unless the law is reserved for
the consideration of the President and receives his assent.
It is also to be noted that no amendment of the Constitution of
India shall extend to Jammu & Kashmir unless it is so extended by
an Order of the President under Art. 370(1).
Alteration of Area Boundary:
No alteration of the area of boundaries of this State can be made by
Parliament without the consent of the Legislature of the State of J &
K.
Other Jurisdictions:
By amendments of the Constitution Order, the jurisdictions of the
comptroller and Auditor-General, of the Election Commission, and
the Special Leave Jurisdiction of the Supreme Court have been ex-
tended to the State of Jammu and Kashmir.
Go To Module-4 QUESTIONS.
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http://www.erewise.com/current-affairs/centre-state-
relations_art52f23588ba502.html
http://www.kkhsou.in/main/polscience/indian_federalism.html
http://www.yourarticlelibrary.com/essay/the-relation-between-centre-
and-state-in-india/24925/
Intro :
Generally, three models are followed in the matter of division of
powers in a federation.
In the first model, the powers of the Centre are defined and the
residuary powers are left to the States. This model is found in
America.
In the second model, the powers of the federating units or States are
defined and the residuary powers are given to the centre. Canada
follows this model, and
In the third model, the powers of both the governments are clearly
laid down. Australia has this model of federation.
In India, we follow the combination of both the Canadian and the
Australian models.
Extensive and expansive nature of the Union List : It may be noted here
that,
The subjects/ powers which are not mentioned in any of the above
three lists are called residuary powers and the Union government can
make laws on them.
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With reference to the three lists, we can discuss the division of powers
between the two governments in India under following three headings,
(1) Legislative relations,
(2) Administrative relations, and
(3) Financial relations.
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State List : The State governments can make laws on the subjects
mentioned in the State list.
The State list has 66 subjects local importance and may vary from
State to State are included in the State list.
The main subjects of the State List are : law-and-order, police,
state court fees, prisons, local government, public health and
sanitation, hospitals and dispensaries, pilgrimages within India,
intoxicating liquors, relief of disabled and unemployable, libraries,
communications, agriculture, animal husbandry, water supply,
irrigation and canals, fisheries, road passenger tax and goods tax,
capitation tax and others.
NB : Though the State governments have power to make laws on
the subjects of the State list, yet the Central government, on
certain occasions, can also make laws on these subjects. For
example, during the period of emergency, the Parliament makes
laws on State subjects.
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The main subjects listed in this list are : economic planning, social
security, electricity, criminal law, criminal procedure, preventive
detention for reasons concerned with the security of state, marriage
and divorce, transfer of property other than agricultural land,
contract, actionable wrongs, bankruptcy and insolvency, trust and
trustees, administration of justice, evidence and oaths, civil
procedure, contempt of court, lunacy, prevention of cruelty to
animals, forests, protection of wild animals and birds, population
control and family planning, trade unions, education, labour
welfare, inland shipping and navigation, food stuffs, price control,
stamp duties, and others.
Exception :
The Parliament can make a law on State subjects also, provided the
Rajya Sabha passes a resolution by a 2/3 majority that such a law
is necessary for national interest.
Sometimes the Governor of a state can reserve certain bills passed
by the state legislature for the consideration of President.
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There are certain taxes like land revenue, tax on agricultural income,
estate duty, etc., which are levied and collected by the States. They
are the sources of State revenue in to its Consolidated Fund.
Some taxes are there like stamp duty, income tax, excise, etc. which
are levied by the Union, and which are source (partly) of revenue in to
Consolidated Fund of State, and source (partly) source of revenue in
to Consolidated Fund of Union.
There are some other taxes which are the sources of income of the
Union government alone. Example, revenue earned from railways,
posts and telegraphs, wireless, broadcasting, etc.
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Consolidated funds :
Intro :
A consolidated fund or the consolidated revenue fund is the term
used for the main bank account of the government in many of the
countries in the British Commonwealth of Nations.
Union as well as each of the states have such a fund wherein ALL
the resources of the Union are to be placed. Likewise, all resourcs
of states are to be placed in respective Consolidated Fund of that
state.
The Comptroller and Auditor General of India audits these funds and
reports to the relevant legislatures on their management.
The consolidated fund of India is made-up of the money received by
the Government of India from,
i. Revenues (direct and indirect taxes);
ii. Issue of treasury bills (loans taken by government of India);
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The part of state from taxes and duties are paid to them before
depositing the revenue in this fund.
Money can be appropriated from this fund only in accordance with law
and for only those purposes which are provided in the constitution.
Every year, finance minister must put following three files on the table
of parliament:
Appropriation bill: to get permission of parliament, to take out cash
from Consolidated fund of India. Art 266.
Finance Bill: to get permission of parliament to collect taxes from
Juntaa. Art 265.
Annual financial statement: to show the parliament data about his
incoming and outgoing money. Art 112
Contingency funds :
Intro :
Necessity of contingency fund arises on account of the fact that,
under the constitution, every item of expenditure requires the prior
sanction of the parliament or the state legislature, as the case may
be. However, sometimes an unexpected demand has to be met and
there may not be any time to get the requisite sanction.
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Mandate :
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The Constitution of India forms the basis for the existence and
mandate of the CAG. Articles 148 to 151 ensure that the CAG and the
IAAD (Indian Audit and Accounts Department) that works under him
are able to conduct their work in an impartial and upright manner.
Article 148 imbues the CAG with the immunities from executive action
accorded to a Supreme Court Judge (making him independent of the
Executive as well as the Legislature).
Articles 149 and 150 define his duties and powers.
Article 151 prescribes that his reports relative to Union and the States
are to be submitted to the President/ Governor and placed before the
respective legislatures (Lok Sabha or Vidhan Sabha).
The salary and other conditions of service of the Comptroller and
Auditor General prescribed by Parliament by law viz., the Comptroller
and Auditor General (Conditions of Service) Act, 1953, as amended in
1971.
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Amendments to the CAG Act of 1971 to keep pace with the changes in
governance.
A collegium type mechanism to choose a new CAG on the lines of
selecting a Chief Vigilance Commissioner (CVC).
Ex CAG famously remarked : Audit has an adversarial function. In
any situation whether it is private or public or government or
whatever it is, it has an adversarial function. We are not going to
praise government policies in an adversarial function. What is the
purpose of audit to look into actions taken and try to ensure that
the actions that have been taken are as per the rules and procedures.
Prominent audit reports : Following are some of the most debated CAG
reports :
2G Spectrum allocation
Coal Mine Allocation
Fodder scam
Krishna-Godavari(KG)D6 gas block
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Type of Organization :
The constitution provided a commission as distinct from the customary
departmental type for undertaking the task of recruitment of civil
servants. The fathers of the constitution were perhaps guided in their
decision by the fact that the task requires experts and longer
specialized knowledge that facilitates collective deliberation by a group
of experts who are able to pool their knowledge and experience to
arrive at informed and objective decisions. Such a method of making
decisions collectively is described as corporate mode of functioning or
decision making.
Further a plural body like public service commission consisting of
experts in parts professional and technical weightage in the process of
decision making. When several heads combine for deliberations,
biases are eliminated and objectivity is ensured. A commission
functions outside the normal governmental machinery, hence greater
flexibility and innovativeness of approach is possible. Bureaucratic
rigidities and delays, which characterize government departments can
thus be avoided.
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Go To Module-4 QUESTIONS.
Go To CONTENTS.
SUGGESTED READING :
Constitutional Law of India: D. D. Basu
Introduction to the Constitution of India : D. D. Basu
Shorter Constitution of India : Durga Das Basu
Constitutional Law of India : V. N. Shukla
Constitutional Law of India : M. P. Jain
Constitution of India : J. N. Pandey
Constitutional Law of India : H. M. Seervai
Constitutional Law of India : P. M. Baxi
Introduction to the Constitutional Law of India : Narendra Kumar, Allabahad
Law Agency
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