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INDIAN POLITY

Historical Background

It was enacted in order to improve the condition of the east India Company. It was the first step taken by the British Government to control and regulate the affairs of the East India Company in India.  Following are the provisions of this act.

  • It designated the Governor of Bengal as the ‘Governor-General of Bengal’ and created an Executive Council of four members to assist him. The first such Governor-General was Lord Warren Hastings.
  • Supreme Court was introduced at Calcutta.
  • The act barred the members of the council as well as the governor general to accept any kind of gift.
  • The government in the presidency of Madras and Bombay was made subordinate to the government in Calcutta.
  • The significance of the Regulating Act is that it brought the affairs of the Company under the control of the Parliament.
  • Besides, it proved that the Parliament of England was concerned about the welfare of Indians.
  • The greatest merit of this Act is that it put an end to the arbitrary rule of the Company and provided a framework for all future enactments relating to the governing of India.

Note: There was practice of corruption in the company and the company was not performing well hence, the Regulating Act 1773 was introduced.

The act came as a measure to eradicate the shortcoming of the regulating act 1773.

  • The act separated the political and economic function of the company. It allowed the Court of Directors to manage the commercial affairs but created a new body called Board of Control to manage the political affairs. Thus, it established a system of double government.
  • The number of members in the council of governor general council was reduced to three.
  • It empowered the Board of Control to supervise and direct all operations of the civil and military government or revenues of the British possessions in India.

Note: There was tussle between the Governor General of Bengal and East India company, the decisions of Governor General was nullified by the supreme court quite often. So, the British government intervened to resolve the deadlock.  

The monopoly of East India Company in trade was abolished (Except in trade with China and Tea) and the trade was open to all English traders. The act was passed by British govt. 

  • The Act incorporated the principle of encouraging learned Indians and promoting knowledge of modern sciences in the country. The Act directed the Company to sanction one lakh rupees annually for this purpose; however, even this petty amount was not made available till 1823, mainly because of the controversy raged on the question of the direction that this expenditure should take.
  • Powers of the Board of Control were further enlarged.

This Act was the final step towards centralization in British India. It made the Governor-General of Bengal as the Governor-General of India and vested in him all civil and military powers.  Thus, the act created, for the first time, a Government of India having authority over the entire territorial area possessed by the British in India. Lord William Bentinck was the first governor-general of India.

  • All restrictions on European immigration and the acquisition of property in India were lifted. Thus, the way was paved for the wholesale European colonization of India.
  • Bengal, Madras, Bombay and all other territories were placed under complete control of the governor-general of India.
  • All revenues were to be raised under the authority of the governor-general who would have complete control over the expenditure too.
  • The Governments of Madras and Bombay were drastically deprived of their legislative powers and left with a right of proposing to the governor-general the projects of law which they thought to be expedient. The laws made under the previous acts were called as Regulations while laws made under this act were called as Acts.
  • A law member was added to the governor-general’s council for professional advice on law-making.
  • It ended the activities of the East India Company as a commercial body, which became a purely administrative body.

The Company’s monopoly over trade with China and in tea also ended.

Note: The Charter Act of 1833 attempted to introduce a system of open competition for selection of civil servants, and stated that the Indians should not be debarred from holding any place, office and employment under the Company. However, this provision was negated after opposition from the Court of Directors.

It separated, for the first time, the legislative and executive functions of the Governor- General’s council.

  • It established a separate Governor-General’s legislative council which came to be known as the Indian (Central) Legislative Council. This legislative wing of the council functioned as a Mini-Parliament, adopting the same procedures as the British Parliament. Thus, legislation, for the first time, was treated as a special function of the government, requiring special machinery and special process.
  • It introduced an open competition system of selection and recruitment of civil servants. The covenanted civil service was thus thrown open to the Indians also. Accordingly, the Macaulay Committee (the Committee on the Indian Civil Service) was appointed in 1854.
  • It introduced, for the first time, local representation in the Indian (Central) Legislative Council. Of the six new legislative members of the governor-general’s council, four members were appointed by the local (provincial) governments of Madras, Bombay, Bengal and Agra.
  • The law member became the full member of the governor-general’s executive council.
  • Six members were to be added to the executive council while legislating but the executive council retained the veto over the Legislative Council.

After the revolt of 1857 the British government took the control of administration in their own hand, it led to end of company rule. It abolished the board of directors and board of control to manage the political and economic affairs of the company. The power was vested in the British crown now.

It changed the designation of the Governor-General of India to that of Viceroy of India. He (viceroy) was the direct representative of the British Crown in India. Lord Canning thus became the first Viceroy of India.

It created a new office, Secretary of State for India, vested with complete authority and control over Indian administration. The secretary of state was a member of the British cabinet and was responsible ultimately to the British Parliament.

The act was known as the Act for the Good Government of India.

The Act of 1858 was, however, largely confined to the improvement of the administrative machinery by which the Indian Government was to be supervised and controlled in England. It did not alter in any substantial way the system of government that prevailed in India.

After the great revolt of 1857, the British Government felt the necessity of seeking the cooperation of the Indians in the administration of their country. In pursuance of this policy of association, three acts were enacted by the British Parliament in 1861, 1892 and 1909. The Indian Councils Act of 1861 is an important landmark in the constitutional and political history of India.

It made a beginning of representative institutions by associating Indians with the law-making process. It thus provided that the viceroy should nominate some Indians as non-official members of his expanded council.

In 1862, Lord Canning, the then viceroy, nominated three Indians to his legislative council—the Raja of Benaras, the Maharaja of Patiala and Sir Dinkar Rao.

It initiated the process of decentralization by restoring the legislative powers to the Bombay and Madras Presidencies. It thus reversed the centralizing tendency that started from the Regulating Act of 1773.

It also provided for the establishment of new legislative councils for Bengal, North-Western Frontier Province (NWFP) and Punjab, which were established in 1862, 1866 and 1897 respectively.

It empowered the Viceroy to make rules and orders for the more convenient transaction of business in the council. It also gave recognition to the ‘portfolio’ system, introduced by Lord Canning in 1859. Under this, a member of the Viceroy’s council was made in-charge of one or more departments of the government and was authorised to issue final orders on behalf of the council on matters of his department(s).

It empowered the Viceroy to issue ordinances, without the concurrence of the legislative council, during an emergency. The life of such an ordinance was six months.

Making of the Constitution

The Constituent Assembly was constituted in November 1946 under the scheme formulated by the Cabinet Mission Plan.

The total strength of the Constituent Assembly was to be 389. Of these, 296 seats were to be allotted to British India and 93 seats to the Princely States.

Proportional Representation: Each province and princely state was to be allotted seats in proportion to their respective population. Roughly, one seat was to be allotted for every million Population.

Seat allocation on Communal Lines: Seats allocated to each British province were to be decided among the three principal communities—Muslims, Sikhs and general, in proportion to their population.

Election by respective Community:  The representatives of each community were to be elected by members of that community in the provincial legislative assembly and voting was to be by the method of proportional representation by means of single transferable vote.

Nominated Members: The representatives of princely states were to be nominated by the heads of the princely states.

Partly Elected and Partly Nominated Body: It is thus clear that the Constituent Assembly was to be a partly elected and partly nominated body. Moreover, the members were to be indirectly elected by the members of the provincial assemblies, who themselves were elected on a limited franchise.

No Gandhi, No Jinnah: Although the Constituent Assembly was not directly elected by the people of India on the basis of adult franchise. The Assembly included all important personalities of India at that time, with the exception of Mahatma Gandhi and M. A. Jinnah.

Working of the constituent assembly: The Constituent Assembly held its first meeting on December 9, 1946. The Muslim League boycotted the meeting and insisted on a separate state of Pakistan. The meeting was thus attended by only 211 members.

President: Dr. Sachchidanand Sinha, the oldest member, was elected as the ‘temporary’ President of the Assembly, following the French practice.

Later, on December 11, 1946, Dr. Rajendra Prasad and H C Mukherjee were elected as the President and Vice-President of the Constituent Assembly respectively.

Constitutional Advisor: Sir B N Rau was appointed as the Constitutional advisor to the Assembly. 

Objectives Resolution: On December 13, 1946, Jawaharlal Nehru moved the historic ‘Objectives Resolution’ in the Assembly. It laid down the fundamentals and philosophy of the constitutional structure.

Note: Whenever the Assembly met as the Constituent body it was chaired by Dr. Rajendra Prasad and when it met as the legislative body, it was chaired by G V Mavlankar. These two functions continued till November 26, 1949, when the task of making the Constitution was over.

  1. Union Powers Committee: Jawahar Lal Nehru
  2. Union Constitution Committee: Jawahar Lala Nehru
  3. Provincial Constitution Committee: Sardar Patel
  4. Drafting Committee: Dr. B R Ambedkar
  5. Steering Committee: Dr. Rajendra Prasad

Drafting Committee: This committee that was entrusted with the task of preparing a draft of the new Constitution. It consisted of seven members. They were:

  1. Dr. B R Ambedkar (Chairman)
  2. N Gopalaswamy Ayyangar
  3. Alladi Krishnaswamy Ayyar
  4. Dr. K M Munshi
  5. Syed Mohammad Saadullah
  6. N Madhava Rau
  7. T. T. Krishnamachari

The Drafting Committee, after taking into consideration the proposals of the various committees, prepared the first draft of the Constitution of India, which was published in February 1948.

Public Feedback on the Draft: The people of India were given eight months to discuss the draft and propose amendments. In the light of the public comments, criticisms and suggestions, the Drafting Committee prepared a second draft, which was published in October 1948.

Note: UK has no written constitution. 

Finally, the original Constitution had 395 Articles, 8 Schedules and 22 Parts.

Salient features of the constitution

The constitution of India is the lengthiest Written Constitution and drawn from Various Sources. The Constitution of India has borrowed most of its provisions from the constitutions of various other countries as well as from the Government of India Act of 1935.

Philosophical Part: The philosophical part of the Constitution (the Fundamental Rights and the Directive Principles of State Policy) derive their inspiration from the American and Irish Constitutions respectively.

Political Part: The political part of the Constitution (the principle of Cabinet Government and the relations between the executive and the legislature) have been largely drawn from the British Constitution.

A rigid Constitution is one that requires a special procedure for its amendment, as for example, the American Constitution.

A flexible constitution, on the other hand, is one that can be amended in the same manner as the ordinary laws are made, as for example, the British Constitution.

The Constitution of India is neither rigid nor flexible but a synthesis of both.

Article 368 provides for two types of amendments:

  • Some provisions can be amended by a special majority of the Parliament, i.e., a two-third majority of the members of each House present and voting, and a majority (that is, more than 50 per cent), of the total membership of each House.
  • Some other provisions can be amended by a special majority of the Parliament and with the ratification by half of the total states.

At the same time, some provisions of the Constitution can be amended by a simple majority of the Parliament in the manner of ordinary legislative process. Notably, these amendments do not come under Article 368.

The Constitution of India establishes a federal system of government. It contains all the usual features of a federation, viz., two governments, division of powers, written Constitution, supremacy of Constitution, rigidity of Constitution, independent judiciary and bicameralism.

However, the Indian Constitution also contains a large number of unitary or non-federal features, viz., a strong Centre, single Constitution, single citizenship, flexibility of Constitution, integrated judiciary, appointment of state governor by the Centre, all-India services, emergency provisions, and so on.

Moreover, the term ‘Federation’ has nowhere been used in the Constitution.

Article 1, on the other hand, describes India as a ‘Union of States’ which implies two things: one, Indian Federation is not the result of an agreement by the states; and two, no state has the right to secede from the federation.

Hence, the Indian Constitution has been variously described as ‘federal in form but unitary in spirit’.

The Constitution of India has opted for the British Parliamentary System of Government rather than American Presidential System of Government. Note: In Kesavananda Bharati case (1973), the Supreme Court ruled that the constituent power of Parliament under Article 368 does not enable it to alter the ‘basic structure’ of the Constitution.

The doctrine of sovereignty of Parliament is associated with the British Parliament while the principle of judicial supremacy with that of the American Supreme Court.

Just as the Indian parliamentary system differs from the British system, the scope of judicial review power of the Supreme Court in India is narrower than that of what exists in US.

This is because the American Constitution provides for ‘due process of law’ against that of ‘procedure established by law’ contained in the Indian Constitution (Article 21).

The Supreme Court, on the one hand, can declare the parliamentary laws as unconstitutional through its power of judicial review. The Parliament, on the other hand, can amend the major portion of the Constitution through its constituent power.

Preamble of the constitution

The Preamble is based on the objectives Resolution drafted and moved by Pandit Nehru and adopted by the Constituent Assembly. The preamble was enacted only after the rest of the constitution was enacted by the Constituent Assembly.

Key Terms include: 

Socialist, Secular and Integrity: Preamble has been amended once by the 42nd Constitutional amendment act, 1976 to add three new words Socialist, Secular, and Integrity.

Note: The American Constitution was the first to introduce Preamble.

Socialism: It is a range of economic and social systems characterised by social ownership of the means of production and workers’ self-management.

Secular: All religions in our country have the same status and support from the state.

Integrity: It is the practice of being honest and showing a consistent and uncompromising adherence to strong moral and ethical principles and values.

Sovereign: The word ‘sovereign’ implies that India is neither a dependency nor a dominion of any other nation, but an independent state. There is no authority above it, and it is free to conduct its own affairs (both internal and external).

Republic: Therefore, the term ‘republic’ in our Preamble indicates that India has an elected head called the president. A republic means that the political sovereignty is vested in the people and not in a single individual like a king.

Date of adoption of the Constitution: It stipulates November 26, 1949 as the date.

In Berubari case (1960), the Supreme Court specifically opined that Preamble is not a part of the Constitution.

In Kesavananda Bharati case (1973), the Supreme Court rejected the earlier opinion and held that Preamble is a part of the Constitution.

Hence, the current opinion held by the Supreme Court that the Preamble is a part of the Constitution, is in consonance with the opinion of the founding fathers of the Constitution.

However, two things should be noted

  1. The Preamble is neither a source of power to legislature nor a prohibition upon the powers of legislature.
  2. It is non-justiciable, that is, its provisions are not enforceable in courts of law.

Amendability of the preamble

In the historic case of Kesavananda Bharati (1973), SC observed that Preamble can be amended, subject to the condition that no amendment is done to the ‘basic features’.

The Preamble has been amended only once so far, in 1976, by the 42nd Constitutional Amendment Act, which has added three new words—Socialist, Secular and Integrity—to the Preamble. This amendment was held to be valid.

Berubari Case: In the Berubari Union case (1960), Supreme Court recognized the significance of the Preamble. Supreme Court mentioned that assistance from Preamble could be taken in the interpretation of articles that are ambiguous or capable of more than one meaning.

However, Supreme Court specifically mentioned that the Preamble is not a part of the constitution.

Kesavananda Bharati Case: In Kesavananda Bharati Case (1973), Supreme Court rejected the earlier opinion and held that Preamble is a part of the Constitution. It observed that Constitution should be read and interpreted in
the light of the grand and noble vision expressed in the Preamble. The Supreme Court also held that the Preamble could be amended as long as basic features of the Constitution enshrined in the Preamble are not amended.

LIC of India Case: In the LIC of India Case (1995) also, Supreme Court again held that the Preamble is an integral part of the constitution.

Q. The Preamble to the Constitution of India is

(a) a part of the Constitution but has no legal effect

(b) not a part of the Constitution and has no legal effect either

(c) part of the Constitution and has the same legal effect as any other part

(d) a part of the Constitution but has no legal effect independently of other parts

Answer: (d)

Explanation: The question, whether the ‘Preamble of the constitution’ is a part of constitution or not, was put forward in front of SC by the famous Kesavananda Bharati case (1973).

The Supreme Court held that Preamble is a part of the Constitution.

It observed that the Preamble is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble.

So, the correct answer is (d).

Again, the question is, are you smart enough to solve this question without being aware about the Keshavnanda Bharati case.

Tell me any of the ideals of the Preamble of the constitution, like “Liberty of thought, expression, belief”.

Have you heard someone going to SC, knocking its door for the violation of fundamental right enshrined in the Preamble?

No, Petitioners cite some article like Article 21, Article 19 etc. while pleading for the justice because detailed provision has been mentioned under different articles only.

So although noble ideals have been mentioned in the Preamble, the interpretation is possible only with the help of specific articles.

Schedule of the Indian Constitution

First Schedule: Name of States and UTs and their jurisdiction.

Second Schedule: Salary and Privilege of President, Governor, Lok Sabha Speaker and Deputy Speaker, Rajya Sabha Chairman and Deputy Chairman, Speaker and Deputy Speaker of Legislative Assembly, Chairman and Deputy Chairman of State Legislative Council, Judge of Supreme Court, Judge of High Court, CAG.

 

Third Schedule: Oath and Affirmation for Union Ministers, Candidates for Election to Parliament, Members of Parliament (MPs), Supreme Court Judges, Comptroller and Auditor General, State Ministers, State Legislature Elections’ Candidates, State Legislature Members, High Court Judges.

 

Fourth Schedule: It contains the provisions in relation to the allocation of seats for States and Union Territories in the Rajya Sabha.

 

Fifth Schedule: It contains provisions in relation to the administration and control of scheduled areas and scheduled tribes.

 

Sixth Schedule: It contains provisions in relation to the administration of tribal areas in the states of Assam, Meghalaya, Tripura and Mizoram.

 

Seventh Schedule: This schedule deals with the three legislative lists: Union, State, Concurrent.

Eighth Schedule: It deals with the 22 official languages.

 

Ninth Schedule: Validation of certain Acts and Regulations, Zamindari System, the schedule was added by 1st constitutional amendment.

 

Tenth Schedule: “Anti-defection” provisions for the Members of Parliament and the Members of the State Legislatures.

 

Eleventh Schedule: Panchayat Raj (rural local government)

 

Twelfth Schedule: Municipalities (urban local government)

 

 

11th Schedule include following subjects:

 

  1. Agriculture, including agricultural extension.
  1. Land improvement, implementation of land reforms, land consolidation and soil conservation.
  1. Minor irrigation, water management and watershed development.
  1. Animal husbandry, dairying and poultry.
  1. Fisheries.
  1. Social forestry and farm forestry.
  1. Minor forest produce.
  1. Small scale industries, including food processing industries. (Not Mining)
  1. Khadi, village and cottage industries.
  1. Rural housing.
  1. Drinking water.
  1. Fuel and fodder.
  1. Roads, culverts, bridges, ferries, waterways and other means of communication.
  1. Rural electrification, including distribution of electricity.
  1. Non-conventional energy sources. (Not the conventional energy source)
  1. Poverty alleviation programme.
  1. Education, including primary and secondary schools.
  1. Technical training and vocational education.
  1. Adult and non-formal education.
  1. Libraries.
  1. Cultural activities.
  1. Markets and fairs.
  1. Health and sanitation, including hospitals, primary health centers and dispensaries.
  1. Family welfare.
  1. Women and child development.
  1. Social welfare, including welfare of the handicapped and mentally retarded.
  1. Welfare of the weaker sections, and in particular, of the Scheduled Castes and the Scheduled Tribes.
  1. Public distribution system.
  1. Maintenance of community assets.

Union and its Territory

Article 1 describes India, that is, Bharat as a ‘Union of States’ rather than a ‘Federation of States’.

The ‘Territory of India’ is a wider expression than the ‘Union of India’ because the latter includes only states while the former includes not only the states but also union territories and territories that may be acquired by the Government of India at any future time.

Article 3 authorises the Parliament to:
(a) form a new state by separation of territory from any state or by uniting two or more states or parts of states or by uniting any territory to a part of any state,
(b) increase the area of any state,
(c) diminish the area of any state,
(d) alter the boundaries of any state, and
(e) alter the name of any state.

However, Article 3 lays down two conditions in this regard: one, a bill contemplating the above changes can be introduced in the Parliament only with the prior recommendation of the President; and two, before recommending the bill, the President has to refer the same to the state legislature concerned for expressing its views within a specified period.

It is thus clear that the Constitution authorises the Parliament to form new states or alter the areas, boundaries or names of the existing states without their consent. In other words, the Parliament can redraw the political map of India according to its will.

Does the power of Parliament to diminish the areas of a state (under Article 3) include also the power to cede Indian territory to a foreign country?

This question came up for examination before the Supreme Court in a reference made by the President in 1960.

The Supreme Court held that the power of Parliament to diminish the area of a state (under Article 3) does not cover cession of Indian territory to a foreign country. Hence, Indian territory can be ceded to a foreign state only by amending the Constitution under Article 368.

On the other hand, the Supreme Court in 1969 ruled that, settlement of a boundary dispute between India and another country does not require a constitutional amendment. It can be done by executive
action as it does not involve cession of Indian territory to a foreign country.

Citizenship

The Constitution deals with the citizenship from Articles 5 to 11 under Part II. Constitution does not deal with the problem of acquisition or loss of citizenship subsequent to its commencement. It empowers the Parliament to enact a law to provide for such matters and any other matter relating to citizenship.

Citizen: The citizens are the members of Indian state and enjoy full civil and political rights. Aliens, on the other hand, are the citizens of some other state and hence, do not enjoy all the civil and political rights.

Aliens are the citizens of other countries. Aliens can be of two types: Friend and Enemy.

The friendly aliens are the citizens of those countries whose relation with India is cordial. The enemy aliens are the citizens of those countries whose relation with India is not good.

The rights extended to the friendly aliens are more than the rights extended to enemy aliens.

Further, in India both the citizen by birth and citizen by naturalization can hold the post of president. This is not the case with US.

Following persons became the citizens of India

  1. The person has been born in India or his father, Grandfather was born in India.
  2. If a person migrated from Pakistan to India.
  3. If a person migrated from India to Pakistan but returned to India before July 1948.
  4. The persons born in India living abroad ordinarily.

Constitution confers the following rights and privileges on the citizens of India (and denies the same to aliens):

  1. Right against discrimination on grounds of religion, race, caste, sex or place of birth (Article 15).
  2. Right to equality of opportunity in the matter of public employment (Article 16).
  3. Right to freedom of speech and expression, assembly, association, movement, residence and profession (Article 19).
  4. Cultural and educational rights (Articles 29 and 30) i.e. the right of minorities to establish the educational institutions.
  5. 5. Right to vote in elections to the Lok Sabha and state legislative assembly.
  6. Right to contest for the membership of the Parliament and the state legislature.
  7. Eligibility to hold certain public offices, that is, President of India, Vice-President of India, judges of the Supreme Court and the high courts, governor of states, attorney general of India and advocate general of states.

FR available to both Citizens and the Aliens

  1. Equality before the law and equal protection of the law (Article 14).
  2. Protection in response of conviction for offences (Article 20).
  3. Protection of life and personal liberty (Article 21) etc.

Note: If a person acquires the citizenship of other country his citizenship becomes void.

Acquisition of Citizenship: The Citizenship Act of 1955 prescribes five ways of acquiring citizenship, viz, birth, descent, registration, naturalisation and incorporation of territory.

Loss of Citizenship: The Citizenship Act, 1955, prescribes three ways of losing citizenship whether acquired under the Act or prior to it under the Constitution, viz, renunciation, termination and deprivation.

National Register of Citizens of India: The National Register of Citizens (NRC) contains names of Indian citizens of Assam.

The NRC Updation of 2014–2016 across Assam includes the names of those persons (or their descendants) who appear in the NRC 1951, or in any of the Electoral Rolls up to the midnight of 24 March 1971 or in any one of the other admissible documents issued up to the midnight of 24 March 1971, which would prove their presence in Assam on or before 24 March 1971.

This exercise is undertaken to distinguish between Indian citizens and illegal migrants in Assam.

Following persons became the citizens of India

  1. The person has been born in India or his father, Grandfather was born in India.
  2. If a person migrated from Pakistan to India.
  3. If a person migrated from India to Pakistan but returned to India before July 1948.
  4. The persons born in India living abroad ordinarily.

Constitution confers the following rights and privileges on the citizens of India (and denies the same to aliens):

  1. Right against discrimination on grounds of religion, race, caste, sex or place of birth (Article 15).
  2. Right to equality of opportunity in the matter of public employment (Article 16).
  3. Right to freedom of speech and expression, assembly, association, movement, residence and profession (Article 19).
  4. Cultural and educational rights (Articles 29 and 30) i.e. the right of minorities to establish the educational institutions.
  5. Right to vote in elections to the Lok Sabha and state legislative assembly.
  6. Right to contest for the membership of the Parliament and the state legislature.
  7. Eligibility to hold certain public offices, that is, President of India, Vice-President of India, judges of the Supreme Court and the high courts, governor of states, attorney general of India and advocate general of states.

FR available to both Citizens and the Aliens

  1. Equality before the law and equal protection of the law (Article 14).
  2. Protection in response of conviction for offences (Article 20).
  3. Protection of life and personal liberty (Article 21) etc.

The Citizenship Act of 1955 prescribes five ways of acquiring citizenship, viz, birth, descent, registration, naturalisation and incorporation of territory.

The Citizenship Act, 1955, prescribes three ways of losing citizenship whether acquired under the Act or prior to it under the Constitution, viz, renunciation, termination and deprivation.

Fundamental Rights

The Fundamental Rights are enshrined in Part III of the Constitution from Articles 12 to 35. In this regard, the framers of the Constitution derived inspiration from the Constitution of USA.

Part III of the Constitution is rightly described as the Magna Carta of India.

The Fundamental Rights are guaranteed by the Constitution to all persons without any discrimination. They uphold the equality of all individuals, the dignity of the individual, the larger public interest and unity of the nation.

The Fundamental Rights are meant for promoting the ideal of political democracy. They prevent the establishment of an authoritarian and despotic rule in the country, and protect the liberties and freedoms of the people against the invasion by the State.

They operate as limitations on the tyranny of the executive and arbitrary laws of the legislature. In short, they aim at establishing ‘government of laws and not of men’.

The Fundamental Rights are named so because they are guaranteed and protected by the Constitution, which is the fundamental law of the land. They are ‘fundamental’ also in the sense that they are most essential for the all-round development (material, intellectual, moral and spiritual) of the individuals.

Originally, the Constitution provided for seven Fundamental Rights viz,

  1. Right to equality (Articles 14–18)
  2. Right to freedom (Articles 19–22)
  3. Right against exploitation (Articles 23–24)
  4. Right to freedom of religion (Articles 25–28)
  5. Cultural and educational rights (Articles 29–30)
  6. Right to property (Article 31)
  7. Right to constitutional remedies (Article 32)

However, the right to property was deleted from the list of Fundamental Rights by the 44th Amendment Act, 1978. It is made a legal right under Article 300 A in Part XII of the Constitution. So at present, there are only six Fundamental Rights.

Features of Fundamental rights: The Fundamental Rights guaranteed by the Constitution are characterised by the following:

  1. Some of them are available only to the citizens while others are available to all persons whether citizens, foreigners or legal persons like corporations or companies.
  2. They are not absolute but qualified. The state can impose reasonable restrictions on them. However, whether such restrictions are reasonable or not is to be decided by the courts.

Thus, they strike a balance between the rights of the individual and those of the society as a whole, between individual liberty and social control.

  1. Most of them are available against the arbitrary action of the State, with a few exceptions like those against the State’s action and against the action of private individuals.

When the rights that are available against the State’s action only are violated by the private individuals, there are no constitutional remedies but only ordinary legal remedies.

  1. Some of them are negative in character, that is, place limitations on the authority of the State, while others are positive in nature, conferring certain privileges on the persons.
  1. They are justiciable, allowing persons to move the courts for their enforcement, if and when they are violated.
  1. They are defended and guaranteed by the Supreme Court. Hence, the aggrieved person can directly go to the Supreme Court, not necessarily by way of appeal against the judgement of the high courts.
  1. They are not sacrosanct or permanent. The Parliament can curtail or repeal them but only by a constitutional amendment act and not by an ordinary act. Moreover, this can be done without affecting the ‘basic structure’ of the Constitution.
  1. They can be suspended during the operation of a National Emergency except the rights guaranteed by Articles 20 and 21. Further, the six rights guaranteed by Article 19 can be suspended only when emergency is declared on the grounds of war or external aggression (i.e., external emergency) and not on the ground of armed rebellion (i.e., internal emergency).
  1. Their application to the members of armed forces, Para-military forces, police forces, intelligence agencies and analogous services can be restricted or abrogated by the Parliament.

Definition of State: The term ‘State’ has been used in different provisions concerning the fundamental rights. Hence, Article 12 has defined the term for the purposes of Part III. According to it, the State includes the following:

(a) Government and Parliament of India, that is, executive and legislative organs of the Union government.

(b) Government and legislature of states, that is, executive and legislative organs of state government.

(c) All local authorities that is, municipalities, Panchayats, district boards, improvement trusts, etc.

(d) All other authorities, that is, statutory or non-statutory authorities like LIC, ONGC, SAIL, etc.

Thus, State has been defined in a wider sense so as to include all its agencies. It is the actions of these agencies that can be challenged in the courts as violating the Fundamental Rights.

According to the Supreme Court, even a private body or an agency working as an instrument of the State falls within the meaning of the ‘State’ under Article 12.

Q. One common agreement between Gandhism and Marxism is

(a) The final goal of a stateless society

(b) Class struggle

(c) Abolition of private property

(d) Economic determinism

Answer: A

Marx: Marx viewed the state as a creature of the bourgeois economic interest.

Gandhi: A social order free from political bindings and consisting of self-governing individuals should be the aim of the society.

Laws inconsistent with fundamental rights: Article 13 declares that all laws that are inconsistent with or in derogation of any of the fundamental rights shall be void. In other words, it expressively provides for the doctrine of judicial review.

This power has been conferred on the Supreme Court (Article 32) and the high courts (Article 226) that can declare a law unconstitutional and invalid on the ground of contravention of any of the Fundamental Rights.

Right to equality: Equality before Law and Equal Protection of Laws

Article 14 says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. This provision confers rights on all persons whether citizens or foreigners.

Moreover, the word ‘person’ includes legal persons, viz, statutory corporations, companies, registered societies or any other type of legal person.

Equality before Law: The concept of ‘equality before law’ is of British origin while the concept of ‘equal protection of laws’ has been taken from the American Constitution. The first concept connotes: (a) the absence of any special privileges in favour of any person, (b) the equal subjection of all persons to the ordinary law and (c) no person (whether rich or poor, high or low, official or non-official) is above the law.

Equal Protection of the Law: Equal protection means the right to equal treatment in similar circumstances, both in the privileges conferred and in the liabilities imposed.

Equal protection of the laws means that amongst equals the law should be equal and should be equally administered and the likes should be treated alike.

Rule of Law: The concept of ‘equality before law’ is an element of the concept of ‘Rule of Law’, propounded by A.V. Dicey, the British jurist. His concept has the following three elements or aspects.

(i) Absence of arbitrary power, that is, no man can be punished except for a breach of law.

(ii) Equality before the law, that is, equal subjection of all citizens (rich or poor, high or low, official or non-official) to the ordinary law of the land administered by the ordinary law courts.

(iii) The primacy of the rights of the individual, that is, the constitution is the result of the rights of the individual as defined and enforced by the courts of law rather than the constitution being the source of the individual rights.

The first and the second elements are applicable to the Indian System and not the third one. In the Indian System, the constitution is the source of the individual rights.

The Supreme Court held that the ‘Rule of Law’ as embodied in Article 14 is a ‘basic feature’ of the constitution. Hence, it cannot be destroyed even by an amendment.

Freedom of speech: Article 19 (1) of the constitution of India contains the provision regarding the freedom of speech.  However, the state can impose considerable restriction on the freedom of speech for integrity of India, Contempt of court, Defamation etc. This right is available only to the citizens of India and not to the foreigners.

RTI: It has been given the status of a fundamental right under Article 19(1) of the Constitution. Article 19 (1) under which every citizen has freedom of speech and expression and have the right to know how the government works, what role does it play, what are its functions and so on.

Right against Exploitation: 1. Prohibition of Traffic in Human Beings and Forced Labor: Article 23 prohibits traffic in human beings, begar (forced labour) and other similar forms of forced labour. Any contravention of this provision shall be an offence punishable in accordance with law.

This right is available to both citizens and non-citizens. It protects the individual not only against the State but also against private persons.

Article 23 also provides for an exception to this provision. It permits the State to impose compulsory service for public purposes, as for example, military service or social service, for which it is not bound to pay. However, in imposing such service, the State is not permitted to make any discrimination on grounds only of religion, race, caste or class.

Prohibition of Employment of Children in Factories, etc.: Article 24 prohibits the employment of children below the age of 14 years in any factory, mine or other hazardous activities like construction work or railway. However, it does not prohibit their employment in any harmless or innocent work.

Right to freedom of Religion: 1. Freedom of Conscience and Free Profession, Practice and Propagation of Religion Article 25 says that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion.

Freedom from Taxation for Promotion of a Religion: Article 27 lay down that no person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination. In other words, the State should not spend the public money collected by way of tax for the promotion or maintenance of any particular religion.

Freedom from Attending Religious Instruction: Under Article 28, no religious instruction shall be provided in any educational institution wholly maintained out of State funds. However, this provision shall not apply to an educational institution administered by the State but established under any endowment or trust, requiring imparting of religious instruction in such institution.

Protection of the right of minority

Article 29 deals with the protection of the interests of minorities. It provides that any section of the citizens residing in any part of India having a distinct language, script, or culture of its own, shall have the right to conserve the same.

It also provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, or language.

Article 29 grants protection to both religious minorities as well as linguistic minorities. However, the Supreme Court held that the scope of this article is not necessarily restricted to minorities only, as it is commonly assumed to be. This is because of the use of the words ‘section of citizens’ in Article 29 that includes minorities as well as the majority. 

Article 30 grants the following rights to minorities, whether religious or linguistic:

  • All minorities shall have the right to establish and administer educational institutions of their choice.
  • The compensation amount fixed by the State for the compulsory acquisition of any property of a minority educational institution shall not restrict or abrogate the right guaranteed to them.
  • In granting aid, the State shall not discriminate against any educational institution managed by a minority. Thus, the protection under Article 30 is confined only to minorities (religious or linguistic) and does not
    extend to any section of citizens (as under Article 29). However, the term ‘minority has not been defined anywhere in the Constitution. 

Minority educational institutions are of three types:

  1. institutions that seek recognition as well as aid from the State
  2. institutions that seek only recognition from the State and not aid
  3. institutions that neither seek recognition nor aid from the State

The institutions of the first and second type are subject to the regulatory power of the state with regard to syllabus prescription, academic standards, discipline, sanitation, employment of teaching staff, etc.

The institutions of the third type are free to administer their affairs but subject to the operation of general laws like contract law, labor law, industrial law, tax law, economic regulations, etc.

  • No citizen will be debarred from getting admission in any state funded institution on the ground of race, Language or religion. (Article 30)
  • The minority (Religious or Linguistic) can establish and operate the institution of their choice. In granting aid, the state will not discriminate between these institutions, (Article 31).

If state either recognizes or fund the minority institution, then the state can intervene in the academic activities of the institutions. However, if state does not recognize or fund then the state is not allowed to intervene in the affairs of the institution. These autonomous institutions are subject to limitation of labor law, Taxation lay etc.

Since AMU is a central university hence the regulation of UGC is applied on this institute.

Right to constitutional remedies: Article 32 confers the right to remedies for the enforcement of the fundamental rights of an aggrieved citizen.

This makes the fundamental rights real. That is why Dr. Ambedkar called Article 32 as the most important article of the Constitution— ‘an Article without which this constitution would be a nullity. It is the very soul of the Constitution and the very heart of it’.

The Supreme Court has ruled that Article 32 is a basic feature of the Constitution. Hence, it cannot be abridged or taken away even by way of an amendment to the Constitution.

Writs—types and scope: The Supreme Court (under Article 32) and the high courts (under Article 226) can issue the writs of habeas corpus, mandamus, prohibition, certiorari and quo-warranto.

Further, the Parliament (under Article 32) can empower any other court to issue these writs. Since no such provision has been made so far, only the Supreme Court and the high courts can issue the writs and not any other court.

These writs are borrowed from English law where they are known as ‘prerogative writs’.

The writ jurisdiction of the Supreme Court differs from that of a high court in three respects:

  1. The Supreme Court can issue writs only for the enforcement of fundamental rights whereas a high court can issue writs not only for the enforcement of Fundamental Rights but also for any other purpose.

The expression ‘for any other purpose’ refers to the enforcement of an ordinary legal right. Thus, the writ jurisdiction of the Supreme Court, in this respect, is narrower than that of high court.

  1. The Supreme Court can issue writs against a person or government throughout the territory of India whereas a high court can issue writs against a person residing or against a government or authority located within its territorial jurisdiction only or outside its territorial jurisdiction only if the cause of action arises within its territorial jurisdiction.

Thus, the territorial jurisdiction of the Supreme Court for the purpose of issuing writs is wider than that of a high court.

  1. A remedy under Article 32 is in itself a Fundamental Right and hence, the Supreme Court may not refuse to exercise its writ jurisdiction. On the other hand, a remedy under Article 226 is discretionary and hence, a high court may refuse to exercise its writ jurisdiction. Article 32 does not merely confer power on the Supreme Court as Article 226 does on a high court to issue writs for the enforcement of fundamental rights or other rights as part of its general jurisdiction. The Supreme Court is thus constituted as a defender and guarantor of the fundamental rights.

Habeas Corpus: It is a Latin term, which literally means ‘to have the body of’. It is an order issued by the court to a person who has detained another person, to produce the body of the latter before it. The court then examines the cause and legality of detention. It would set the detained person free, if the detention is found to be illegal. Thus, this writ is a bulwark of individual liberty against arbitrary detention.

The writ of habeas corpus can be issued against both public authorities as well as private individuals. The writ, on the other hand, is not issued where the (a) detention is lawful, (b) the proceeding is for contempt of a legislature or a court, (c) detention is by a competent court, and (d) detention is outside the jurisdiction of the court.

Mandamus: It literally means ‘we command’. It is a command issued by the court to a public official asking him to perform his official duties that he has failed or refused to perform. It can also be issued against any public body, a corporation, an inferior court, a tribunal or government for the same purpose.

The writ of mandamus cannot be issued (a) against a private individual or body; (b) to enforce departmental instruction that does not possess statutory force; (c) when the duty is discretionary and not mandatory; (d) to enforce a contractual obligation; (e) against the president of India or the state governors; and (f) against the chief justice of a high court acting in judicial capacity.

Prohibition: Literally, it means ‘to forbid’. It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess. Thus, unlike mandamus that directs activity, the prohibition directs inactivity.

The writ of prohibition can be issued only against judicial and quasi-judicial authorities. It is not available against administrative authorities, legislative bodies, and private individuals or bodies.

Certiorari: In the literal sense, it means ‘to be certified’ or ‘to be informed’. It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to it or to squash the order of the latter in a case.

It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law. Thus, unlike prohibition, which is only preventive, certiorari is both preventive as well as curative.

Till recently, the writ of certiorari could be issued only against judicial and quasi-judicial authorities and not against administrative authorities.

However, in 1991, the Supreme Court ruled that the certiorari can be issued even against administrative authorities affecting rights of individuals.

Quo-Warranto: In the literal sense, it means ‘by what authority or warrant’. It is issued by the court to enquire into the legality of claim of a person to a public office. Hence, it prevents illegal usurpation of public office by a person.

The writ can be issued only in case of a substantive public office of a permanent character created by a statute or by the Constitution. It cannot be issued in cases of ministerial office or private office.

Unlike the other four writs, this can be sought by any interested person and not necessarily by the aggrieved person.

Like prohibition, certiorari is also not available against legislative bodies and private individuals or bodies.

Armed forces and Fundamental Rights: Article 33 empowers the Parliament to restrict or abrogate the fundamental rights of the members of armed forces, paramilitary forces, police forces, intelligence agencies and analogous forces.

The objective of this provision is to ensure the proper discharge of their duties and the maintenance of discipline among them.

The power to make laws under Article 33 is conferred only on Parliament and not on state legislatures. Any such law made by Parliament cannot be challenged in any court on the ground of contravention of any of the fundamental rights.

A parliamentary law enacted under Article 33 can also exclude the court Martials (tribunals established under the military law) from the writ jurisdiction of the Supreme Court and the high courts, so far as the enforcement of Fundamental Rights is concerned.

Martial law and fundamental rights: Article 34 provides for the restrictions on fundamental rights while martial law is in force in any area within the territory of India. It empowers the Parliament to indemnify any government servant or any other person for any act done by him in connection with the maintenance or restoration of order in any area where martial law was in force.

The Act of Indemnity made by the Parliament cannot be challenged in any court on the ground of contravention of any of the fundamental rights.

The concept of martial law has been borrowed in India from the English common law. However, the expression ‘martial law’ has not been defined anywhere in the Constitution.

Directive Principles of State Policy

The phrase ‘Directive Principles of State Policy’ denotes the ideals that the State should keep in mind while formulating policies and enacting laws. These are the constitutional instructions or recommendations to the State in legislative, executive and administrative matters.

According to Article 36, the term ‘State’ in Part IV has the same meaning as in Part III dealing with Fundamental Rights. Therefore, it includes the legislative and executive organs of the central and state governments, all local authorities and all other public authorities in the country.

The Directive Principles resemble the ‘Instrument of Instructions’ enumerated in the Government of India Act of 1935.

In the words of Dr. B R Ambedkar, ‘the Directive Principles are like the instrument of instructions, which were issued to the Governor-General and to the Governors of the colonies of India by the British Government under the Government of India Act of 1935. What is called Directive Principles is merely another name for the instrument of instructions. The only difference is that they are instructions to the legislature and the executive’.

The idea has been taken from Irish constitution.  These are the instruction for states acting as the legislature or as executive.  The directive principle of state policy is not enforceable in the court but since these have been mentioned in the constitution of India hence it is considered to be fundamental in the governance of the state.

It promotes the concept of a ‘welfare state’ and not that of a ‘police state’, which existed during the colonial era. In brief, they seek to establish economic and social democracy in the country. 

Q. Which part of the constitution of India declares the ideals of welfare state?

(a) Directive Principles of State policy

(b) Fundamental Rights

(c) Preamble

(d) Seventh schedule

(UPSC Prelims 2020)

Answer: A

The Directive Principles are non-justiciable in nature, that is, they are not legally enforceable by the courts for their violation. Therefore, the government (Central, state and local) cannot be compelled to implement them.

Nevertheless, the Constitution (Article 37) itself says that these principles are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

The Directive Principles, though non-justiciable in nature, help the courts in examining and determining the constitutional validity of a law. The Supreme Court has ruled many a times that in determining the constitutionality of any law, if a court finds that the law in question seeks to give effect to a Directive Principle, it may consider such law to be ‘reasonable’ in relation to Article 14 (equality before law) or Article 19 (six freedoms) and thus save such law from unconstitutionality.

Q. With reference to the provisions contained in Part IV of the Constitution of India, which of the following statements is/are correct?

  1. They shall be enforceable by courts.
  2. They shall not be enforceable by any court.
  3. The principles laid down in this part are to influence the making of laws by the State.

Select the correct answer using the code given below:

(a) 1 only

(b) 2 only

(c) 1 and 3 only

(d) 2 and 3 only

(UPSC Prelims 2020)

Answer: (d)

The Directive Principles of State Policy are guidelines for the framing of laws by the government. These provisions are not enforceable by the courts, but the principles on which they are based are fundamental guidelines for governance that the State is expected to apply in framing policies and passing laws.

Directive Principles, they are not enforceable by courts unless otherwise made enforceable by parliamentary law.

The phrase ‘Directive Principles of State Policy’ denotes the ideals that the State should keep in mind while formulating policies and enacting laws.

Therefore, the correct answer is (d).

The Constitution does not contain any classification of Directive Principles. However, on the basis of their content and direction, they can be classified into three broad categories, viz, socialistic, Gandhian and liberal–intellectual.

Socialistic Principles: These principles reflect the ideology of socialism. They lay down the framework of a democratic socialist state, aim at providing social and economic justice, and set the path towards welfare state.

They direct the state:

  1. To promote the welfare of the people by securing a social order permeated by justice— social, economic and political—and to minimize inequalities in income, status, facilities and opportunities (Article 38).
  1. To secure (a) the right to adequate means of livelihood for all citizens; (b) the equitable distribution of material resources of the community for the common good; (c) prevention of concentration of wealth and means of production; (d) equal pay for equal work for men and women; (e) preservation of the health and strength of workers and children against forcible abuse; and (f) opportunities for healthy development of children (Article 39).
  1. To promote equal justice and to provide free legal aid to the poor (Article 39 A).
  1. To secure the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement (Article 41).
  1. To make provision for just and humane conditions for work and maternity relief (Article 42).
  1. To secure a living wage, a decent standard of life and social and cultural opportunities for all workers (Article 43).
  1. To take steps to secure the participation of workers in the management of industries 8 (Article 43 A).
  1. To raise the level of nutrition and the standard of living of people and to improve public health (Article 47).

Gandhian Principles: These principles are based on Gandhian ideology. They represent the programme of reconstruction enunciated by Gandhi during the national movement.

In order to fulfill the dreams of Gandhi, some of his ideas were included as Directive Principles. They require the State:

  1. To organise village Panchayats and endow them with necessary powers and authority to enable them to function as units of self-government (Article 40).
  1. To promote cottage industries on an individual or co-operation basis in rural areas (Article 43).
  1. To promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies (Article 43B).
  1. To promote the educational and economic interests of SCs, STs, and other weaker sections of the society and to protect them from social injustice and exploitation (Article 46).
  1. To prohibit the consumption of intoxicating drinks and drugs which are injurious to health (Article 47)
  1. To prohibit the slaughter of cows, calves and other milch and draught cattle and to improve their breeds (Article 48).

Liberal–Intellectual Principles: The principles included in this category represent the ideology of liberalism. They direct the state:

  1. To secure for all citizens a uniform civil code throughout the country (Article 44).
  2. To provide early childhood care and education for all children until they complete the age of six years (Article 45).
  3. To organise agriculture and animal husbandry on modern and scientific lines (Article 48).
  4. To protect and improve the environment and to safeguard forests and wild life (Article 48 A).
  5. To protect monuments, places and objects of artistic or historic interest which are declared to be of national importance (Article 49).
  6. To separate the judiciary from the executive in the public services of the State (Article 50).
  7. To promote international peace and security and maintain just and honorable relations between nations; to foster respect for international law and treaty obligations, and to encourage settlement of international disputes by arbitration (Article 51).

Q. In India, separation of judiciary from executive is enjoined by

(a) The preamble of the constitution

(b) The directive principles of state policy

(c) The seventh schedule

(d) The conventional practice

Answer: (b)

Article 50 of the Indian Constitution recommends state to take efforts to separate the judiciary from the executive in the public services of the State.

Note: Preamble do not mention the idea of separation of executive and judiciary.

Seventh Schedule is about division of Power between Centre and State. 

The 42nd Amendment Act of 1976 added four new Directive Principles to the original list. They require the State:

  1. To secure opportunities for healthy development of children (Article 39).
  2. To promote equal justice and to provide free legal aid to the poor (Article 39 A).
  3. To take steps to secure the participation of workers in the management of industries (Article 43 A).
  4. To protect and improve the environment and to safeguard forests and wild life (Article 48 A).

The 44th Amendment Act of 1978 added one more Directive Principle, which requires the State to minimize inequalities in income, status, facilities and opportunities (Article 38).

Again, the 86th Amendment Act of 2002 changed the subject-matter of Article 45 and made elementary education a fundamental right under Article 21 A. The amended directive requires the State to provide early childhood care and education for all children until they complete the age of six years.

The 97th Amendment Act of 2011 added a new Directive Principle relating to co-operative societies. It requires the state to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies (Article 43B).

Fundamental Duties

The original constitution contained only the fundamental rights and not the fundamental duties. Later in 1976, the fundamental duties of citizens were added in the Constitution.

In 2002, one more Fundamental Duty was added.

The Fundamental Duties in the Indian Constitution are inspired by the Constitution of erstwhile USSR.

Swaran Singh committee recommendations: In 1976, the Congress Party set up the Sardar Swaran Singh Committee to make recommendations about fundamental duties.

The Congress Government at Centre accepted these recommendations and enacted the 42nd Constitutional Amendment Act in 1976.

This amendment added a new part, namely, Part IVA to the Constitution.

This new part consists of only one Article, that is, Article 51A which for the first time specified a code of ten fundamental duties of the citizens.

Interestingly, certain recommendations of the Committee were not accepted by the Congress Party and hence, not incorporated in the Constitution. These include:

  1. The Parliament may provide for the imposition of such penalty or punishment as may be considered appropriate for any non-compliance with or refusal to observe any of the duties.
  1. No law imposing such penalty or punishment shall be called in question in any court on the ground of infringement of any of Fundamental Rights or on the ground of repugnancy to any other provision of the Constitution.
  1. Duty to pay taxes should also be a Fundamental Duty of the citizens.

According to Article 51 A, it shall be the duty of every citizen of India:

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

(b) To cherish and follow the noble ideals that inspired the national struggle for freedom;

(c) To uphold and protect the sovereignty, unity and integrity of India;

(d) To defend the country and render national service when called upon to do so;

(e) To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities and to renounce practices derogatory to the dignity of women;

(f) To value and preserve the rich heritage of the country’s composite culture;

(g) To protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures;

(h) To develop scientific temper, humanism and the spirit of inquiry and reform;

(i) To safeguard public property and to abjure violence;

(j) To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement; and

(k) To provide opportunities for education to his child or ward between the age of six and fourteen years. This duty was added by the 86th Constitutional Amendment Act, 2002.

Unlike some of the Fundamental Rights which extend to all persons whether citizens or foreigners, the Fundamental Duties are confined to citizens only and do not extend to foreigners.

Like the Directive Principles, the fundamental duties are also non-justiciable. The Constitution does not provide for their direct enforcement by the courts. Moreover, there is no legal sanction against their violation. However, the Parliament is free to enforce them by suitable legislation.

Amendment of the Constitution

Like any other written Constitution, the Constitution of India also provides for its amendment in order to adjust itself to the changing conditions and needs. However, the procedure laid down for its amendment is neither as easy as in Britain nor as difficult as in USA. In other words, the Indian Constitution is neither flexible nor rigid but a synthesis of both.

Article 368 in Part XX of the Constitution deals with the powers of Parliament to amend the Constitution and its procedures, it states that the Parliament may, in exercise of its constituent power, amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure laid down for the purpose.

However, the Parliament cannot amend those provisions which form the ‘basic structure’ of the Constitution. This was ruled by the Supreme Court in the Kesavananda Bharati case (1973).

The procedure for the amendment of the Constitution as laid down in Article 368 is as follows:

  1. An amendment of the Constitution can be initiated only by the introduction of a bill for the purpose in either House of Parliament and not in the state legislature. 
  2. The bill can be introduced either by a minister or by a private member and does not require prior permission of the president.
  3. The bill must be passed in each House by a special majority, that is, a majority (that is, more than 50 per cent) of the total membership of the House and a majority of two-thirds of the members of the House present and voting.
  4. Each House must pass the bill separately. In case of a disagreement between the two Houses, there is no provision for holding a joint sitting of the two Houses for the purpose of deliberation and passage of the bill.
  5. If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of half of the states by a simple majority, that is, a majority of the members of the House present and voting.
  6. After duly passed by both the Houses of Parliament and ratified by the state legislatures, where necessary, the bill is presented to the president for assent.
  7. The president must give his assent to the bill. He can neither withhold his assent to the bill nor return the bill for reconsideration of the Parliament.
  8. After the president’s assent, the bill becomes an Act (i.e., a constitutional amendment act) and the Constitution stands amended in accordance with the terms of the Act.

There are two procedures to amend the constitution: 

  1. Using Article 368
  2. Without using Article 368

Article 368 provides for two types of amendments, that is, by a special majority of Parliament and also through the ratification of half of the states by a simple majority. But, some other articles provide for the amendment of certain provisions of the Constitution by a simple majority of Parliament, that is, a majority of the members of each House present and voting (similar to the ordinary legislative process). Notably, these amendments are not deemed to be amendments of the Constitution for the purposes of Article 368.

Therefore, the Constitution can be amended in three ways:

(a) Amendment by simple majority of the Parliament,

(b) Amendment by special majority of the Parliament, and

(c) Amendment by special majority of the Parliament and the ratification of half of the state legislatures.

By Simple Majority of Parliament

A number of provisions in the Constitution can be amended by a simple majority of the two Houses of Parliament outside the scope of Article 368. These provisions include:

  1. Admission or establishment of new states.
  2. Formation of new states and alteration of areas, boundaries or names of existing states. Bill to alter the boundaries of any state can be introduced in the Parliament only with the prior recommendation of the President. President has to refer the same bill to the state legislature concerned for expressing its views within a specified period. However, President is not bound by the views of the state legislature.
  3. Abolition or creation of legislative councils in states.
  4. Second Schedule—emoluments, allowances, privileges and so on of the president, the governors, the Speakers, judges, etc.
  5. Quorum in Parliament.
  6. Salaries and allowances of the members of Parliament.
  7. Rules of procedure in Parliament.
  8. Privileges of the Parliament, its members and its committees.
  9. Use of English language in Parliament.
  10. Number of puisne judges in the Supreme Court.
  11. Conferment of more jurisdictions on the Supreme Court.
  12. Use of official language.
  13. Citizenship—acquisition and termination.
  14. Elections to Parliament and state legislatures.
  15. Delimitation of constituencies.
  16. Union territories.
  17. Fifth Schedule—administration of scheduled areas and scheduled tribes.
  18. Sixth Schedule—administration of tribal areas.

By Special Majority of Parliament

The majority of the provisions in the Constitution need to be amended by a special majority of the Parliament, that is, a majority (that is, more than 50 per cent) of the total membership of each House and a majority of two-thirds of the members of each House present and voting. The expression ‘total membership’ means the total number of members comprising the House irrespective of fact whether there are vacancies or absentees.  

The provisions which can be amended by this way include:

(i) Fundamental Rights;

(ii) Directive Principles of State Policy; and

(iii) All other provisions which are not covered by the first and third categories.

By Special Majority of Parliament and Consent of States:

Those provisions of the Constitution which are related to the federal structure of the polity can be amended by a special majority of the Parliament and also with the consent of half of the state legislatures by a simple majority. If one or some or all the remaining states take no action on the bill, it does not matter; the moment half of the states give their consent, the formality is completed.

There is no time limit within which the states should give their consent to the bill.

The following provisions can be amended in this way:

  1. Election of the President and its manner.
  2. Extent of the executive power of the Union and the states.
  3. Supreme Court and high courts.
  4. Distribution of legislative powers between the Union and the states.
  5. Any of the lists in the Seventh Schedule.
  6. Representation of states in Parliament.
  7. Power of Parliament to amend the Constitution and its procedure (Article 368 itself).

The power to initiate an amendment to the Constitution lies with the Parliament. Hence, unlike in USA, the state legislatures cannot initiate any bill or proposal for amending the Constitution except in one case that is, passing a resolution requesting the Parliament for the creation or abolition of legislative councils in the states. Here also, the Parliament can either approve or disapprove such a resolution or may not take any action on it.

Major part of the Constitution can be amended by the Parliament alone either by a special majority or by a simple majority. Only in few cases, the consent of the state legislatures is required and that too, only half of them, while in USA, it is three-fourths of the states.

The Constitution does not prescribe the time frame within which the state legislatures should ratify or reject an amendment submitted to them. Also, it is silent on the issue whether the states can withdraw their approval after according the same.

Basic Structure of the Constitution

Parliament under Article 368 can amend any part of the Constitution including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution.

However, the Supreme Court is yet to define or clarify as to what constitutes the ‘basic structure’ of the Constitution. From the various judgements, the following have emerged as ‘basic features’ of the Constitution: 

  1. Supremacy of the Constitution
  2. Sovereign, democratic and republican nature of the Indian polity
  3. Secular character of the Constitution
  4. Separation of powers between the legislature, the executive and the judiciary
  5. Federal character of the Constitution
  6. Unity and integrity of the nation
  7. Welfare state (socio-economic justice)
  8. Judicial review
  9. Freedom and dignity of the individual
  10. Parliamentary system
  11. Rule of law
  12. Harmony and balance between Fundamental Rights and Directive Principles
  13. Principle of equality

The ‘catch-up’ rule was explained in the Nagaraj judgement, holding that if a senior general candidate was promoted after SC and ST candidates, he would gain his seniority on promotion in relation to the juniors who had been promoted against reserved vacancies.

Q. Consider the following statements

1.The constitution of India defines its basic structure in terms of federalism, secularism, fundamental rights and democracy

2.The constitution of India provides for the ‘judicial review’ to safeguard the citizen’s liberties and to preserve the ideals on which the constitution is based.

Which of the above given statements is/are correct?

(a) 1 only

(b) 2 only

(c) Both 1 and 2

(d) Neither 1 nor 2

UPSC Prelims 2020

Answer: B

S1: Incorrect, the Supreme Court defines basic structure, not the constitution.

S2: Correct, article 13 has this provision.

Parliamentary System

The Constitution of India provides for a parliamentary form of government, both at the Centre and in the states.

Articles 74 and 75 deal with the parliamentary system at the Centre and Articles 163 and 164 in the states.

The Parliament of India consists of three parts viz, the President, the Council of States and the House of the People.

Why President is a part of Parliament?

This is because a bill passed by both the Houses of Parliament cannot become law without the President’s assent. He also performs certain functions relating to the proceedings of the Parliament, for example, he summons and prorogues both the Houses, dissolves the Lok Sabha, addresses both the Houses, issues ordinances when they are not in session, and so on.

Interdependence between Legislative and Executive Organ: The parliamentary form of government emphasises on the interdependence between the legislative and executive organs.

How the Parliamentary System in India is different from the British one? 

  1. The British system is based on the doctrine of the sovereignty of Parliament
    while the Parliament in India is not supreme in India.
  2. India does not have the system of legal responsibility of the minister but Britain has it.

Q21. A parliamentary system of government is one which

(a) All political parties in the parliament are represented in the government

(b) The government is responsible to the Parliament and can be removed by it

(c) The government is elected by the people and can be removed by them

(d) The government is chosen by the parliament but cannot be removed by it before completion of a fixed term

(UPSC Prelims 2020)

Answer: B

The Parliament of India consists of three parts viz, the President, the Council of States and the House of the People.

Why President is a part of Parliament?
This is because a bill passed by both the Houses of Parliament cannot become law without the President’s assent. He also performs certain functions relating to the proceedings of the Parliament, for example, he summons and prorogues both the Houses, dissolves the Lok Sabha, addresses both the Houses, issues ordinances when they are not in session, and so on.

Interdependence between Legislative and Executive Organ: The parliamentary form of government emphasises on the interdependence between the legislative and executive organs.

Composition of Rajyasabha: The maximum strength of the Rajya Sabha is fixed at 250, out of which, 238 are to be the representatives of the states and union territories (elected indirectly) and 12 are nominated by the president.

At present, the Rajya Sabha has 245 members. Of these, 229 members represent the states, 4 members represent the union territories (Delhi 3, Pondicherry 1) and 12 members are nominated by the president.

The Fourth Schedule of the Constitution deals with the allocation of seats in the Rajya Sabha to the states and union territories.

1.Representation of States: The representatives of states in the Rajya Sabha are elected by the elected members of state legislative assemblies.

The election is held in accordance with the system of proportional representation by means of the single transferable vote. The seats are allotted to the states in the Rajya Sabha on the basis of population. For example, Uttar Pradesh has 31 members while Tripura has one member only.

2.Representation of Union Territories: The representatives of each union territory in the Rajya Sabha are indirectly elected by members of an electoral college specially constituted for the purpose.

This election is also held in accordance with the system of proportional representation by means of the single transferable vote. Out of the seven union territories, only two (Delhi and Puducherry) have representation in Rajya Sabha. The populations of other five union territories are too small to have any representative in the Rajya Sabha.

3. Nominated Members: The president nominates 12 members to the Rajya Sabha from people who have special knowledge or practical experience in art, literature, science, sport and social service, Sports. The rationale behind this principle of nomination is to provide eminent persons a place in the Rajya Sabha without going through the process of election.

Note: Article 80 of the constitution says that the President can nominate a person to Rajya Sabha.

 

  1. With reference to the funds under Member of Parliament Local Area Development(MPLADS)Scheme, which of the following statements are correct?
  1. MPLADS funds must be used to create durable assets like physical infrastructure for health, education etc.
  2. A specified portion of each MP’s fund must benefit SC/ST populations.
  3. MPLADS funds are sanctioned on an annual basis and the unused funds cannot be carried forward to the next year.
  4. The district authority must inspect at least 10% of all works under implementation.

Select the correct answer using the given code below-

 

(a) 1 and 2 only

 

(b) 3 and 4 only

 

(c) 1, 2 and 3 only

 

(d) 1, 2 and 4 only

 

Answer: (d) 

S1: Correct, this is the basic mandate behind the creation of the fund.

S2: Correct, a common statement, usually a portion of the fund is reserved for the vulnerable community to ensure inclusive development. S2 is correct.

S3: Incorrect, MPLADS funds are sanctioned on yearly basis and the unused funds do not lapse. S3 is wrong.

S4: Correct, the work is executed by the district administration and the district authority must inspect at least 10% of all works under implementation every year. Hence, S4 is correct.

Composition of Lok Sabha: The maximum strength of the Lok Sabha is fixed at 552. Out of this, 530 members are to be the representatives of the states, 20 members are to be the representatives of the union territories and 2 members are to be nominated by the president from the Anglo-Indian community.

At present, the Lok Sabha has 545 members. Of these, 530 members represent the states, 13 members represent the union territories and 2 Anglo-Indian members are nominated by the President.

Representation of States: The representatives of states in the Lok Sabha are directly elected by the people from the territorial constituencies in the states. The election is based on the principle of universal adult franchise. Every Indian citizen who is above 18 years of age and who is not disqualified under the provisions of the Constitution or any law is eligible to vote at such election.

The voting age was reduced from 21 to 18 years by the 61st Constitutional Amendment Act, 1988.

Nominated Members: The president can nominate two members from the Anglo-Indian community if the community is not adequately represented in the Lok Sabha.

System of elections to Lok Sabha: Each state is allotted a number of seats in the Lok Sabha in such a manner that the ratio between that number and its population is the same for all states. This provision does not apply to a state having a population of less than six million.

Readjustment after each Census: After every census, a readjustment is to be made in (a) allocation of seats in the Lok Sabha to the states, and (b) division of each state into territorial constituencies.

Parliament is empowered to determine the authority and the manner in which it is to be made. Accordingly, the Parliament has enacted the Delimitation Commission Acts in 1952, 1962, 1972 and 2002 for this purpose.

The 42nd Amendment Act of 1976 froze the allocation of seats in the Lok Sabha to the states and the division of each state into territorial constituencies till the year 2000 at the 1971 level. This ban on readjustment was extended for another 25 years (i.e. up to year 2026) by the 84th Amendment Act of 2001, with the same objective of encouraging population limiting measures.

Delimitation of Constituencies: The Constitution makes the similar provision for allocation of seats and demarcation of constituencies with respect to Legislative Assemblies of the States. This process of allocation of number of seats and their demarcation into territories is known as process of Delimitation of Constituencies.

The Constitution 42nd Amendment (1976) had put a ban on any further delimitation of constituencies until 2000.

 

91st Amendment of the Constitution passed in 2002 has extended this freeze of seats up to 2026.

The year 2026 has been chosen, because the population planners have projected that by that year the population of India would stabilize and the country could hope to have zero growth rate of population thereafter.

This amendment, however, has made provisions of setting up of a Delimitation Commission to readjust the constituencies. This is primarily due to change in population patterns and migrations etc.

Duration of Rajya Sabha: The Rajya Sabha (first constituted in 1952) is a continuing chamber, that is, it is a permanent body and not subject to dissolution. However, one-third of its members retire every second year. Their seats are filled up by fresh elections and presidential nominations at the beginning of every third year.

The retiring members are eligible for re-election and renomination any number of times.

The Constitution has not fixed the term of office of members of the Rajya Sabha and left it to the Parliament.

Accordingly, the Parliament in the Representation of the People Act (1951) provided that the term of office of a member of the Rajya Sabha shall be six years. The act also empowered the president of India to curtail the term of members chosen in the first Rajya Sabha.

In the first batch, it was decided by lottery as to who should retire. Further, the act also authorised the President to make provisions to govern the order of retirement of the members of the Rajya Sabha. 

Duration of Lok Sabha: Unlike the Rajya Sabha, the Lok Sabha is not a continuing chamber. Its normal term is five years from the date of its first meeting after the general elections, after which it automatically dissolves.

However, the President is authorised to dissolve the Lok Sabha at any time even before the completion of five years and this cannot be challenged in a court of law.

 

Further, the term of the Lok Sabha can be extended during the period of national emergency be a law of Parliament for one year at a time for any length of time. However, this extension cannot continue beyond a period of six months after the emergency has ceased to operate.

 

Membership of parliament: Qualifications: He must be a citizen of India. He must be not less than 30 years of age in the case of the Rajya Sabha and not less than 25 years of age in the case of the Lok Sabha.

 

Disqualifications: Under the Constitution, a person shall be disqualified for being elected as a Member of Parliament:

  1. If he holds any office of profit under the Union or state government (except that of a minister or any other office exempted by Parliament).
  2. If he is of unsound mind and stands so declared by a court.
  3. If he is an undischarged insolvent.
  4. If he is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance to a foreign state; and
  5. If he is so disqualified under any law made by Parliament.

The Parliament has laid down the following additional disqualifications in the Representation of People Act (1951):

  1. He must not have been found guilty of certain election offences or corrupt practices in the elections.
  2. He must not have been convicted for any offence resulting in imprisonment for two or more years. But, the detention of a person under a preventive detention law is not a disqualification.
  3. He must not have failed to lodge an account of his election expenses within the time.
  4. He must not have any interest in government contracts, works or services.
  5. He must not be a director or managing agent nor hold an office of profit in a corporation in which the government has at least 25 per cent share.
  6. He must not have been dismissed from government service for corruption or disloyalty to the State.
  7. He must not have been convicted for promoting enmity between different groups or for the offence of bribery.
  8. He must not have been punished for preaching and practicing social crimes such as untouchability, dowry and sati.

On the question whether a member is subject to any of the above disqualifications, the president’s decision is final. However, he should obtain the opinion of the election commission and act accordingly.

 

Q19. Consider the following statements:

  1. According to the Constitution of India, a person who is eligible to vote can be made a minister in a State for six months’ even if he/she is not a member of the Legislature of that State.
  2. According to the Representation of People Act, 1951, a person convicted of a criminal offence and sentenced to imprisonment for five years is permanently disqualified from contesting an election even after his release from prison.

Which of the statements given above is/are correct?

(a) 1 only

(b) 2only

(c) Both 1 and 2

(d) Neither 1 nor 2

(UPSC Prelims 2020)

Answer: (a) 

 

What Constitution Says?

What RPA, 1951 says?

A Minister who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to be a Minister.

 

S1 is correct.

Source: licchavilyceum.com

A person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.

 

S2 is not correct.

Election Commission recommends disqualification of 20 AAP MLAs: The Election Commission has recommended that 20 MLAs of the Aam Aadmi Party in Delhi be disqualified as they held offices of profit while being legislators. President Ram Nath Kovind will make the final decision based on the recommendation.

 

Note: In June 2016, the Congress had approached the Election Commission, alleging that 21 MLAs of the AAP had been appointed parliamentary secretaries in March 2015.

 

In September 2016, the Delhi High Court set aside their appointments as parliamentary secretaries.

Disqualification on Ground of Defection: The Constitution also lays down that a person shall be disqualified from being a member of Parliament if he is so disqualified on the ground of defection under the provisions of the Tenth Schedule. A member incurs disqualification under the defection law:

  1. If he voluntary gives up the membership of the political party on whose ticket he is elected to the House;
  2. If he votes or abstains from voting in the House contrary to any direction given by his political party.
  3. If any independently elected member joins any political party; and
  4. If any nominated member joins any political party after the expiry of six months.

The question of disqualification under the Tenth Schedule is decided by the Chairman in the case of Rajya Sabha and Speaker in the case of Lok Sabha (and not by the president of India).

 

In 1992, the Supreme Court ruled that the decision of the Chairman/Speaker in this regard is subject to judicial review.

 

Vacating of Seats: In the following cases, a Member of Parliament vacates his seat.

 

Double Membership:  A person cannot be a member of both Houses of Parliament at the same time. Thus, the Representation of People Act (1951) provides for the following:

(a) If a person is elected to both the Houses of Parliament, he must intimate within 10 days in which House he desires to serve. In default of such intimation, his seat in the Rajya Sabha becomes vacant.

 

(b) If a sitting member of one House is also elected to the other House, his seat in the first House becomes vacant.

 

(c) If a person is elected to two seats in a House, he should exercise his option for one. Otherwise, both seats become vacant.

 

Similarly, a person cannot be a member of both the Parliament and the state legislature at the same time. If a person is so elected, his seat in Parliament becomes vacant if he does not resign his seat in the state legislature within 14 days.

 

Resignation:  A member may resign his seat by writing to the Chairman of Rajya Sabha or Speaker of Lok Sabha, as the case may be. The seat falls vacant when the resignation is accepted. However, the Chairman/Speaker may not accept the resignation if he is satisfied that it is not voluntary or genuine.

 

Absence: A House can declare the seat of a member vacant if he is absent from all its meetings for a period of sixty days without its permission. In computing the period of sixty days, no account shall be taken of any period during which the House is prorogued or adjourned for more than four consecutive days.

 

Other cases:  A member has to vacate his seat in the Parliament:

(a) if his election is declared void by the court;

(b) if he is expelled by the House;

(c) if he is elected to the office of President or Vice-President; and

(d) if he is appointed to the office of governor of a state.

If a disqualified person is elected to the Parliament, the Constitution lays down no procedure to declare the election void. This matter is dealt by the Representation of the People Act (1951), which enables the high court to declare an election void if a disqualified candidate is elected. The aggrieved party can appeal to the Supreme Court against the order of the high court in this regard. (High Court first)

 

Salaries and Allowances: Members of either House of Parliament are entitled to receive such salaries and allowances as may be determined by Parliament.

 

The salaries and allowances of the Speaker of Lok Sabha and the Chairman of Rajya Sabha are also determined by Parliament. They are charged on the Consolidated Fund of India and thus are not subject to the annual vote of Parliament.

 

Ways of suspension in Lok Sabha: The Speaker is empowered to force a Member to withdraw from the House (for the remaining part of the day), or to place him/her under suspension.

 

Revocation of a Member’s suspension in Lok Sabha: While the Speaker is empowered to place a Member under suspension, the authority for revocation of this order is not vested in her, it is vested in the House.  

 

What happens in Rajya Sabha?

Like the Speaker in Lok Sabha, the Chairman of the Rajya Sabha is empowered under Rule Number 255 of its Rule Book to “direct any Member whose conduct is in his opinion grossly disorderly to withdraw immediately” from the House.

 

1.“Any Member so ordered to withdraw shall do so forthwith and shall absent himself during the remainder of the day’s meeting.”

2.The Chairman may “name a Member who disregards the authority of the Chair or abuses the rules of the Council by persistently and willfully obstructing” business.

3.In such a situation, the House may adopt a motion suspending the Member from the service of the House for a period not exceeding the remainder of the session.

4.The House may, however, by another motion, terminate the suspension.

5.Unlike the Speaker, however, the Rajya Sabha Chairman does not have the power to suspend a Member.

Election and Tenure: The Speaker is elected by the Lok Sabha from amongst its members (as soon as may be after its first sitting). Whenever the office of the Speaker falls vacant, the Lok Sabha elects another member to fill the vacancy.

 

The date of election of the Speaker is fixed by the President.

Usually, the Speaker remains in office during the life of the Lok Sabha. However, he has to vacate his office earlier in any of the following three cases:

  1. If he ceases to be a member of the Lok Sabha;
  2. If he resigns by writing to the Deputy Speaker; and
  3. If he is removed by a resolution passed by a majority of all the members of the Lok Sabha (Absolute Majority).

 

Such a resolution can be moved only after giving 14 days’ advance notice.

 

When a resolution for the removal of the Speaker is under consideration of the House, he cannot preside at the sitting of the House, though he may be present. However, he can speak and take part in the proceedings of the House at such a time and vote in the first instance, though not in the case of an equality of votes.

 

It should be noted here that, whenever the Lok Sabha is dissolved, the Speaker does not vacate his office and continues until the newly- elected Lok Sabha meets.

 

Role, Powers and Functions:  The Speaker is the head of the Lok Sabha, and its representative. He is the guardian of powers and privileges of the members, the House as a whole and its committees. He is the principal spokesperson of the House, and his decision in all Parliamentary matters is final.

 

He is thus much more than merely the presiding officer of the Lok Sabha. In these capacities, he is vested with vast, varied and vital responsibilities and enjoys great honor, high dignity and supreme authority within the House.

 

The Speaker of the Lok Sabha derives his powers and duties from three sources, that is, the Constitution of India, the Rules of Procedure and Conduct of Business of Lok Sabha, and Parliamentary Conventions (residuary powers that are unwritten or unspecified in the Rules).

 

Altogether, he has the following powers and duties:

  1. He maintains order and decorum in the House for conducting its business and regulating its proceedings. This is his primary responsibility and he has final power in this regard.

 

  1. He is the final interpreter of the provisions of (a) the Constitution of India, (b) the Rules of Procedure and Conduct of Business of Lok Sabha, and (c) the parliamentary precedents, within the House.

 

  1. He adjourns the House or suspends the meeting in absence of a quorum. The quorum to constitute a meeting of the House is one-tenth of the total strength of the House.

 

  1. He does not vote in the first instance. However, he can exercise a casting vote in the case of a tie. In other words, only when the House is divided equally on any question, the Speaker is entitled to vote. Such vote is called casting vote, and its purpose is to resolve a deadlock.

 

  1. He presides over a joint setting of the two Houses of Parliament. Such a sitting is summoned by the President to settle a deadlock between the two Houses on a bill.
  2. He can allow a ‘secret’ sitting of the House at the request of the Leader of the House. When the House sits in secret, no stranger can be present in the chamber, lobby or galleries except with the permission of the Speaker.

 

  1. He decides whether a bill is a money bill or not and his decision on this question is final.

 

When a money bill is transmitted to the Rajya Sabha for recommendation and presented to the President for assent, the Speaker endorses on the bill his certificate that it is a money bill.

 

  1. He decides the questions of disqualification of a member of the Lok Sabha, arising on the ground of defection under the provisions of the Tenth Schedule. In 1992, the Supreme Court ruled that the decision of the Speaker in this regard is subject to judicial review.

 

  1. He acts as the ex-officio chairman of the Indian Parliamentary Group of the Inter- Parliamentary Union. He also acts as the ex-officio chairman of the conference of presiding officers of legislative bodies in the country.

 

  1. He appoints the chairman of all the parliamentary committees of the Lok Sabha and supervises their functioning.

 

He himself is the chairman of the Business Advisory Committee, the Rules Committee and the General Purpose Committee.

 

  1. He can suspend a member of the house for disruption. He cannot nullify the suspension as this right is vested in the house. The Chairman of Rajyasabha do not have the right to suspend a member. The suspension and revocation of suspension is done by the Rajya Sabha itself.

 

The following provisions ensure the independence and impartiality of the office of the Speaker:

  1. He is provided with a security of tenure. He can be removed only by a resolution passed by the Lok Sabha by an absolute majority (i.e. a majority of the total members of the House) and not by an ordinary majority (i.e. a majority of the members present and voting in the House).

 

This motion of removal can be considered and discussed only when it has the support of at least 50 members.

 

  1. His salaries and allowances are fixed by Parliament. They are charged on the Consolidated Fund of India and thus are not subject to the annual vote of Parliament.

 

  1. His work and conduct cannot be discussed and criticized in the Lok Sabha except on a substantive motion.

 

  1. His powers of regulating procedure or conducting business or maintaining order in the House are not subject to the jurisdiction of any Court.

 

  1. He cannot vote in the first instance. He can only exercise a casting vote in the event of a tie. This makes the position of Speaker impartial.

 

  1. He is given a very high position in the order of precedence. He is placed at seventh rank, along with the Chief Justice of India. This means, he has a higher rank than all cabinet ministers, except the Prime Minister or Deputy Prime Minister.

 

Deputy Speaker of Lok Sabha: Like the Speaker, the Deputy Speaker is also elected by the Lok Sabha itself from amongst its members. He is elected after the election of the Speaker has taken place. The date of election of the Deputy Speaker is fixed by the Speaker.

 

Whenever the office of the Deputy Speaker falls vacant, the Lok Sabha elects another member to fill the vacancy. Like the Speaker, the Deputy Speaker remains in office usually during the life of the Lok Sabha.

 

However, he may vacate his office earlier in any of the following three cases:

  1. if he ceases to be a member of the Lok Sabha;
  2. if he resigns by writing to the Speaker; and
  3. if he is removed by a resolution passed by a majority of all the members of the Lok Sabha.

 

Such a resolution can be moved only after giving 14 days’ advance notice.

 

The Deputy Speaker performs the duties of the Speaker’s office when it is vacant. He also acts as the Speaker when the latter is absent from the sitting of the House. In both the cases, he assumes all the powers of the Speaker. He also presides over the joint sitting of both the Houses of Parliament, in case the Speaker is absent from such a sitting.

 

It should be noted here that the Deputy Speaker is not subordinate to the Speaker. He is directly responsible to the House.

 

The Deputy Speaker has one special privilege, that is, whenever he is appointed as a member of a parliamentary committee, he automatically becomes its chairman.

 

Like the Speaker, the Deputy Speaker, while presiding over the House, cannot vote in the first instance; he can only exercise a casting vote in the case of a tie. Further, when a resolution for the removal of the Deputy Speaker is under consideration of the House, he cannot preside at the sitting of the House, though he may be present.

 

When the Speaker presides over the House, the Deputy Speaker is like any other ordinary member of the House. He can speak in the House, participate in its proceedings and vote on any question before the House.

 

The Deputy Speaker is entitled to a regular salary and allowance fixed by Parliament, and charged on the Consolidated Fund of India.

 

Up to the 10th Lok Sabha, both the Speaker and the Deputy Speaker were usually from the ruling party. Since the 11th Lok Sabha, there has been a consensus that the Speaker comes from the ruling party (or ruling alliance) and the post of Deputy Speaker goes to the main opposition party.

 

The Speaker and the Deputy Speaker, while assuming their offices, do not make and subscribe any separate oath or affirmation.

 

Panel of Chairpersons of Lok Sabha: Under the Rules of Lok Sabha, the Speaker nominates from amongst the members a panel of not more than ten chairpersons. Any of them can preside over the House in the absence of the Speaker or the Deputy Speaker.

 

He has the same powers as the Speaker when so presiding. He holds office until a new panel of chairpersons is nominated.

 

When any member of the panel of chairpersons is also not present, any other person as determined by House acts as the Speaker.

 

It must be emphasised here that a member of the panel of chairpersons cannot preside over the House, when the office of the Speaker or the Deputy Speaker is vacant. During such time, the Speaker’s duties are to be performed by such member of the House as the President may appoint for the purpose.

 

The elections are held, as soon as possible, to fill the vacant posts.

 

Speaker Pro Tem: As provided by the Constitution, the Speaker of the last Lok Sabha vacates his office immediately before the first meeting of the newly- elected Lok Sabha. Therefore, the President appoints a member of the Lok Sabha as the Speaker Pro Tem. Usually, the senior most member is selected for this.

 

The President himself administers oath to the Speaker Pro Tem.

The Speaker Pro Tem has all the powers of the Speaker. He presides over the first sitting of the newly elected Lok Sabha. His main duty is to administer oath to the new members. He also enables the House to elect the new Speaker.

 

When the new Speaker is elected by the House, the office of the Speaker Pro Tem ceases to exist. Hence, this office is a temporary office, existing for a few days.

Election and Tenure: The Speaker is elected by the Lok Sabha from amongst its members (as soon as may be after its first sitting). Whenever the office of the Speaker falls vacant, the Lok Sabha elects another member to fill the vacancy.

 

The date of election of the Speaker is fixed by the President.

Usually, the Speaker remains in office during the life of the Lok Sabha. However, he has to vacate his office earlier in any of the following three cases:

  1. If he ceases to be a member of the Lok Sabha;
  2. If he resigns by writing to the Deputy Speaker; and
  3. If he is removed by a resolution passed by a majority of all the members of the Lok Sabha (Absolute Majority).

 

Such a resolution can be moved only after giving 14 days’ advance notice.

 

When a resolution for the removal of the Speaker is under consideration of the House, he cannot preside at the sitting of the House, though he may be present. However, he can speak and take part in the proceedings of the House at such a time and vote in the first instance, though not in the case of an equality of votes.

 

It should be noted here that, whenever the Lok Sabha is dissolved, the Speaker does not vacate his office and continues until the newly- elected Lok Sabha meets.

 

Role, Powers and Functions:  The Speaker is the head of the Lok Sabha, and its representative. He is the guardian of powers and privileges of the members, the House as a whole and its committees. He is the principal spokesperson of the House, and his decision in all Parliamentary matters is final.

 

He is thus much more than merely the presiding officer of the Lok Sabha. In these capacities, he is vested with vast, varied and vital responsibilities and enjoys great honor, high dignity and supreme authority within the House.

 

The Speaker of the Lok Sabha derives his powers and duties from three sources, that is, the Constitution of India, the Rules of Procedure and Conduct of Business of Lok Sabha, and Parliamentary Conventions (residuary powers that are unwritten or unspecified in the Rules).

 

Altogether, he has the following powers and duties:

  1. He maintains order and decorum in the House for conducting its business and regulating its proceedings. This is his primary responsibility and he has final power in this regard.

 

  1. He is the final interpreter of the provisions of (a) the Constitution of India, (b) the Rules of Procedure and Conduct of Business of Lok Sabha, and (c) the parliamentary precedents, within the House.

 

  1. He adjourns the House or suspends the meeting in absence of a quorum. The quorum to constitute a meeting of the House is one-tenth of the total strength of the House.

 

  1. He does not vote in the first instance. However, he can exercise a casting vote in the case of a tie. In other words, only when the House is divided equally on any question, the Speaker is entitled to vote. Such vote is called casting vote, and its purpose is to resolve a deadlock.

 

  1. He presides over a joint setting of the two Houses of Parliament. Such a sitting is summoned by the President to settle a deadlock between the two Houses on a bill.
  2. He can allow a ‘secret’ sitting of the House at the request of the Leader of the House. When the House sits in secret, no stranger can be present in the chamber, lobby or galleries except with the permission of the Speaker.

 

  1. He decides whether a bill is a money bill or not and his decision on this question is final.

 

When a money bill is transmitted to the Rajya Sabha for recommendation and presented to the President for assent, the Speaker endorses on the bill his certificate that it is a money bill.

 

  1. He decides the questions of disqualification of a member of the Lok Sabha, arising on the ground of defection under the provisions of the Tenth Schedule. In 1992, the Supreme Court ruled that the decision of the Speaker in this regard is subject to judicial review.

 

  1. He acts as the ex-officio chairman of the Indian Parliamentary Group of the Inter- Parliamentary Union. He also acts as the ex-officio chairman of the conference of presiding officers of legislative bodies in the country.

 

  1. He appoints the chairman of all the parliamentary committees of the Lok Sabha and supervises their functioning.

 

He himself is the chairman of the Business Advisory Committee, the Rules Committee and the General Purpose Committee.

 

  1. He can suspend a member of the house for disruption. He cannot nullify the suspension as this right is vested in the house. The Chairman of Rajyasabha do not have the right to suspend a member. The suspension and revocation of suspension is done by the Rajya Sabha itself.

 

The following provisions ensure the independence and impartiality of the office of the Speaker:

  1. He is provided with a security of tenure. He can be removed only by a resolution passed by the Lok Sabha by an absolute majority (i.e. a majority of the total members of the House) and not by an ordinary majority (i.e. a majority of the members present and voting in the House).

 

This motion of removal can be considered and discussed only when it has the support of at least 50 members.

 

  1. His salaries and allowances are fixed by Parliament. They are charged on the Consolidated Fund of India and thus are not subject to the annual vote of Parliament.

 

  1. His work and conduct cannot be discussed and criticized in the Lok Sabha except on a substantive motion.

 

  1. His powers of regulating procedure or conducting business or maintaining order in the House are not subject to the jurisdiction of any Court.

 

  1. He cannot vote in the first instance. He can only exercise a casting vote in the event of a tie. This makes the position of Speaker impartial.

 

  1. He is given a very high position in the order of precedence. He is placed at seventh rank, along with the Chief Justice of India. This means, he has a higher rank than all cabinet ministers, except the Prime Minister or Deputy Prime Minister.

 

Deputy Speaker of Lok Sabha: Like the Speaker, the Deputy Speaker is also elected by the Lok Sabha itself from amongst its members. He is elected after the election of the Speaker has taken place. The date of election of the Deputy Speaker is fixed by the Speaker.

 

Whenever the office of the Deputy Speaker falls vacant, the Lok Sabha elects another member to fill the vacancy. Like the Speaker, the Deputy Speaker remains in office usually during the life of the Lok Sabha.

 

However, he may vacate his office earlier in any of the following three cases:

  1. if he ceases to be a member of the Lok Sabha;
  2. if he resigns by writing to the Speaker; and
  3. if he is removed by a resolution passed by a majority of all the members of the Lok Sabha.

 

Such a resolution can be moved only after giving 14 days’ advance notice.

 

The Deputy Speaker performs the duties of the Speaker’s office when it is vacant. He also acts as the Speaker when the latter is absent from the sitting of the House. In both the cases, he assumes all the powers of the Speaker. He also presides over the joint sitting of both the Houses of Parliament, in case the Speaker is absent from such a sitting.

 

It should be noted here that the Deputy Speaker is not subordinate to the Speaker. He is directly responsible to the House.

 

The Deputy Speaker has one special privilege, that is, whenever he is appointed as a member of a parliamentary committee, he automatically becomes its chairman.

 

Like the Speaker, the Deputy Speaker, while presiding over the House, cannot vote in the first instance; he can only exercise a casting vote in the case of a tie. Further, when a resolution for the removal of the Deputy Speaker is under consideration of the House, he cannot preside at the sitting of the House, though he may be present.

 

When the Speaker presides over the House, the Deputy Speaker is like any other ordinary member of the House. He can speak in the House, participate in its proceedings and vote on any question before the House.

 

The Deputy Speaker is entitled to a regular salary and allowance fixed by Parliament, and charged on the Consolidated Fund of India.

 

Up to the 10th Lok Sabha, both the Speaker and the Deputy Speaker were usually from the ruling party. Since the 11th Lok Sabha, there has been a consensus that the Speaker comes from the ruling party (or ruling alliance) and the post of Deputy Speaker goes to the main opposition party.

 

The Speaker and the Deputy Speaker, while assuming their offices, do not make and subscribe any separate oath or affirmation.

 

Panel of Chairpersons of Lok Sabha: Under the Rules of Lok Sabha, the Speaker nominates from amongst the members a panel of not more than ten chairpersons. Any of them can preside over the House in the absence of the Speaker or the Deputy Speaker.

 

He has the same powers as the Speaker when so presiding. He holds office until a new panel of chairpersons is nominated.

 

When any member of the panel of chairpersons is also not present, any other person as determined by House acts as the Speaker.

 

It must be emphasised here that a member of the panel of chairpersons cannot preside over the House, when the office of the Speaker or the Deputy Speaker is vacant. During such time, the Speaker’s duties are to be performed by such member of the House as the President may appoint for the purpose.

 

The elections are held, as soon as possible, to fill the vacant posts.

 

Speaker Pro Tem: As provided by the Constitution, the Speaker of the last Lok Sabha vacates his office immediately before the first meeting of the newly- elected Lok Sabha. Therefore, the President appoints a member of the Lok Sabha as the Speaker Pro Tem. Usually, the senior most member is selected for this.

 

The President himself administers oath to the Speaker Pro Tem.

The Speaker Pro Tem has all the powers of the Speaker. He presides over the first sitting of the newly elected Lok Sabha. His main duty is to administer oath to the new members. He also enables the House to elect the new Speaker.

 

When the new Speaker is elected by the House, the office of the Speaker Pro Tem ceases to exist. Hence, this office is a temporary office, existing for a few days.

The presiding officer of the Rajya Sabha is known as the Chairman. The vice-president of India is the ex-officio Chairman of the Rajya Sabha. During any period when the Vice-President acts as President or discharges the functions of the President, he does not perform the duties of the office of the Chairman of Rajya Sabha.

 

The Chairman of the Rajya Sabha can be removed from his office only if he is removed from the office of the Vice-President. As a presiding officer, the powers and functions of the Chairman in the Rajya Sabha are similar to those of the Speaker in the Lok Sabha. However, the Speaker has two special powers which are not enjoyed by the Chairman:

  1. The Speaker decides whether a bill is a money bill or not and his decision on this question is final.
  2. The Speaker presides over a joint sitting of two Houses of Parliament.

 

Unlike the Speaker (who is a member of the House), the Chairman is not a member of the House. However, like the Speaker, the Chairman also cannot vote in the first instance. He too can cast a vote in the case of an equality of votes.

 

The Vice-President cannot preside over a sitting of the Rajya Sabha as its Chairman when a resolution for his removal is under consideration. However, he can be present and speak in the House and can take part in its proceedings, without voting, even at such a time (while the Speaker can vote in the first instance when a resolution for his removal is under consideration of the Lok Sabha).

 

As in case of the Speaker, the salaries and allowances of the Chairman are also fixed by the Parliament. They are charged on the Consolidated Fund of India and thus are not subject to the annual vote of Parliament.

 

During any period when the Vice-President acts as President or discharges the functions of the President, he is not entitled to any salary or allowance payable to the Chairman of the Rajya Sabha. However, he is paid the salary and allowance of the President during such a time.

 

Deputy Chairman of Rajya Sabha: The Deputy Chairman is elected by the Rajya Sabha itself from amongst its members. Whenever the office of the Deputy Chairman falls vacant, the Rajya Sabha elects another member to fill the vacancy.

The Deputy Chairman vacates his office in any of the following three cases:

  1. if he ceases to be a member of the Rajya Sabha;
  2. if he resigns by writing to the Chairman; and
  3. if he is removed by a resolution passed by a majority of all the members of the Rajya Sabha (Absolute Majority).

 

Such a resolution can be moved only after giving 14 days’ advance notice.

 

The Deputy Chairman performs the duties of the Chairman’s office when it is vacant or when the Vice-President acts as President or discharges the functions of the President. He also acts as the Chairman when the latter is absent from the sitting of the House.

 

In both the cases, he has all the powers of the Chairman.

It should be emphasised here that the Deputy Chairman is not subordinate to the Chairman. He is directly responsible to the Rajya Sabha.

 

Like the Chairman, the Deputy Chairman, while presiding over the House, cannot vote in the first instance; he can only exercise a casting vote in the case of a tie. Further, when a resolution for the removal of the Deputy Chairman is under consideration of the House, he cannot preside over a sitting of the House, though he may be present.

 

When the Chairman presides over the House, the Deputy Chairman is like any other ordinary member of the House. He can speak in the House, participate in its proceedings and vote on any question before the House.

 

Like the Chairman, the Deputy Chairman is also entitled to a regular salary and allowance. They are fixed by Parliament and are charged on the Consolidated Fund of India.

 

Panel of Vice-Chairpersons of Rajya Sabha: Under the Rules of Rajya Sabha, the Chairman nominates from amongst the members a panel of vice chairpersons.

 

Any one of them can preside over the House in the absence of the Chairman or the Deputy Chairman. He has the same powers as the Chairman when so presiding.

 

He holds office until a new panel of vice-chairpersons is nominated. When any member of the panel of vice-chairpersons is also not present, any other person as determined by the House acts as the Chairman.

 

It must be emphasised here that a member of the panel of vice-chairpersons cannot preside over the House, when the office of the Chairman or the Deputy Chairman is vacant. During such time, the Chairman’s duties are to be performed by such member of the House as the president may appoint for the purpose. The elections are held, as soon as possible, to fill the vacant posts.

Each House of Parliament has separate secretarial staff of its own, though there can be some posts common to both the Houses. Their recruitment and service conditions are regulated by Parliament.

 

The secretariat of each House is headed by a secretary-general. He is a permanent officer and is appointed by the presiding officer of the House.

Under the Rules of Lok Sabha, the ‘Leader of the House’ means the prime minister, if he is a member of the Lok Sabha, or a minister who is a member of the Lok Sabha and is nominated by the prime minister to function as the Leader of the House. There is also a ‘Leader of the House’ in the Rajya Sabha. He is a minister and a member of the Rajya Sabha and is nominated by the prime minister to function as such.

In each House of Parliament, there is the ‘Leader of the Opposition’. The leader of the largest Opposition party having not less than one-tenth seats of the total strength of the House is recognised as the leader of the Opposition in that House.

 

In a parliamentary system of government, the leader of the opposition has a significant role to play. His main functions are to provide a constructive criticism of the policies of the government and to provide an alternative government. Therefore, the leader of Opposition in the Lok Sabha and the Rajya Sabha were accorded statutory recognition in 1977.

 

They are also entitled to the salary, allowances and other facilities equivalent to that of a cabinet minister. It was in 1969 that an official leader of the opposition was recognised for the first time. The same functionary in USA is known as the ‘minority leader’.

 

Whip: Though the offices of the leader of the House and the leader of the Opposition are not mentioned in the Constitution of India, they are mentioned in the Rules of the House and Parliamentary Statute respectively.

 

The office of ‘whip’, on the other hand, is mentioned neither in the Constitution of India nor in the Rules of the House nor in a Parliamentary Statute. It is based on the conventions of the parliamentary government.

 

Every political party whether ruling or in opposition has its own whip in the Parliament, He is appointed by the political party to serve as an assistant floor leader. He is charged with the responsibility of ensuring the attendance of his party members in large numbers and securing their support in favour of or against a particular issue.

 

He regulates and monitors their behavior in the Parliament. The members are supposed to follow the directives given by the whip. Otherwise, disciplinary action can be taken.

Summoning: The president from time to time summons each House of Parliament to meet. However, the maximum gap between two sessions of Parliament cannot be more than six months. In other words, the Parliament should meet at least twice a year.

  1. There are usually three sessions in a year, viz, 
  2. the Budget Session (February to May)
  3. the Monsoon Session (July to September); and 
  4. the Winter Session (November to December).

Q. Consider the following statements:

  1. The President of India can summon a session of the Parliament at such place as he/she thinks fit.
  2. The Constitution of India provides for three sessions of the Parliament in a year, but it is not mandatory to conduct all three sessions.
  3. There is no minimum number of days of that the Parliament is required to meet in a year.

Which of the statements given above is/are correct?

(a) 1 only

(b) 2 only

(c) 1 and 3 only

(d) 2 and 3 only

(UPSC Prelims 2020)

Answer: (c)

Article 85 of the Constitution lays following provisions:

“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 (this makes S2 incorrect) shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session. Hence S1 is correct.

The Parliament should meet at least twice a year. Therefore, the constitution prescribes a maximum gap but there is no minimum gap.

So, statement 3 is correct.

Session: A ‘session’ of Parliament is the period spanning between the first sitting of a House and its prorogation (or dissolution in the case of the Lok Sabha).

During a session, the House meets every day to transact business. The period spanning between the prorogation of a House and its reassembly in a new session is called ‘recesses’.

Adjournment: A session of Parliament consists of many meetings. Each meeting of a day consists of two sittings, that is, a morning sitting from 11 am to 1 pm and post-lunch sitting from 2 pm to 6 pm.

A sitting of Parliament can be terminated by adjournment or adjournment sine die or prorogation or dissolution (in the case of the Lok Sabha). An adjournment suspends the work in a sitting for a specified time, which may be hours, days or weeks.

Adjournment Sine Die: Adjournment sine die means terminating a sitting of Parliament for an indefinite period. In other words, when the House is adjourned without naming a day for reassembly, it is called adjournment sine die.

The power of adjournment as well as adjournment sine die lies with the presiding officer of the House. He can also call a sitting of the House before the date or time to which it has been adjourned or at any time after the House has been adjourned sine die.

Prorogation: The presiding officer (Speaker or Chairman) declares the House adjourned sine die, when the business of a session is completed. Within the next few days, the President issues a notification for prorogation of the session. However, the President can also prorogue the House while in session.

Dissolution: Rajya Sabha, being a permanent House, is not subject to dissolution. Only the Lok Sabha is subject to dissolution. Unlike a prorogation, dissolution ends the very life of the existing House, and a new House is constituted after general elections are held.

The dissolution of the Lok Sabha may take place in either of two ways:

  1. Automatic dissolution, that is, on the expiry of its tenure of five years or the terms as extended during a national emergency; or
  2. Whenever the President decides to dissolve the House, which he is authorised to do.

Once the Lok Sabha is dissolved before the completion of its normal tenure, the dissolution is irrevocable.

When the Lok Sabha is dissolved, all business including bills, motions, resolutions, and notices, petitions and so on pending before it or its committee lapse. They must be reintroduced in the newly-constituted Lok Sabha. However, some pending bills and all pending assurances that are to be examined by the Committee on Government Assurances do not lapse on the dissolution of the Lok Sabha.

Lapse of Bill: The position with respect to lapsing of bills is as follows

  1. A bill pending in the Lok Sabha lapses (whether originating in the Lok Sabha or transmitted to it by the Rajya Sabha).
  1. A bill passed by the Lok Sabha but pending in the Rajya Sabha lapses.
  1. A bill not passed by the two Houses due to disagreement and if the president has notified the holding of a joint sitting before the dissolution of Lok Sabha, does not lapse.
  1. A bill pending in the Rajya Sabha but not passed by the Lok Sabha does not lapse.
  1. A bill passed by both Houses but pending assent of the president does not lapse.
  1. A bill passed by both Houses but returned by the president for reconsideration of Houses does not lapse.

Note: Whenever there is involvement of president, Bills do not lapse.

Key facts:

  1. Adjournment (of a sitting) does not affect the bills or any other business pending before the House and the same can be resumed when the House meets again.
  2. Prorogation (of a session) does not affect the bills or any other business pending before the House. However, all pending notices (other than those for introducing bills) lapse on prorogation and fresh notices have to be given for the next session.

Devices of parliamentary proceedings

Question Hour: The first hour of every parliamentary sitting is slotted for this. During this time, the members ask questions and the ministers usually give answers.

The questions are of three kinds, namely, starred, unstarred and short notice.

A starred question (distinguished by an asterisk) requires an oral answer and hence supplementary questions can follow.

An unstarred question, on the other hand, requires a written answer and hence, supplementary questions cannot follow.

A short notice question is one that is asked by giving a notice of less than ten days. It is answered orally.

Zero Hour: Unlike the question hour, the zero hour is not mentioned in the Rules of Procedure. Thus it is an informal device available to the members of the Parliament to raise matters without any prior notice.

The zero hour starts immediately after the question hour and lasts until the agenda for the day (i.e. regular business of the House) is taken up.

In other words, the time gap between the question hour and the agenda is known as zero hour.

It is an Indian innovation in the field of parliamentary procedures and has been in existence since 1962.

Motions: No discussion on a matter of general public importance can take place except on a motion made with the consent of the presiding officer. The House expresses its decisions or opinions on various issues through the adoption or rejection of motions moved by either ministers or private members.

The motions moved by the members to raise discussions on various matters fall into three principal categories:

  1. Substantive Motion: It is a self-contained independent proposal dealing with a very important matter like impeachment of the President or removal of Chief Election Commissioner.
  1. Substitute Motion: It is a motion that is moved in substitution of an original motion and proposes an alternative to it. If adopted by the House, it supersedes the original motion.
  1. Subsidiary Motion: It is a motion that, by itself, has no meaning and cannot state the decision of the House without reference to the original motion or proceedings of the House. It is divided into three sub-categories:

(a) Ancillary Motion: It is used as the regular way of proceeding with various kinds of business.

(b) Superseding Motion: It is moved in the course of debate on another issue and seeks to supersede that issue.

(c) Amendment: It seeks to modify or substitute only a part of the original motion.

Closure Motion: It is a motion moved by a member to cut short the debate on a matter before the House. If the motion is approved by the House, debate is stopped forthwith and the matter is put to vote. There are four kinds of closure motions:

(A) Simple Closure: It is one when a member moves that the ‘matter having been sufficiently discussed be now put to vote’.

(b) Closure by Compartments: In this case, the clauses of a bill or a lengthy resolution are grouped into parts before the commencement of the debate. The debate covers the part as a whole and the entire part is put to vote.

(c) Kangaroo Closure: Under this type, only important clauses are taken up for debate and voting and the intervening clauses are skipped over and taken as passed.

(d) Guillotine Closure: It is one when the undiscussed clauses of a bill or a resolution are also put to vote along with the discussed ones due to want of time (as the time allotted for the discussion is over).

Privilege Motion It is concerned with the breach of parliamentary privileges by a minister. It is moved by a member when he feels that a minister has committed a breach of privilege of the House or one or more of its members by withholding facts of a case or by giving wrong or distorted facts. Its purpose is to censure the concerned minister.

Calling Attention Motion: It is introduced in the Parliament by a member to call the attention of a minister to a matter of urgent public importance, and to seek an authoritative statement from him on that matter. Like the zero hour, it is also an Indian innovation in the parliamentary procedure and has been in existence since 1954. However, unlike the zero hour, it is mentioned in the Rules of Procedure.

Adjournment Motion It is introduced in the Parliament to draw attention of the House to a definite matter of urgent public importance, and needs the support of 50 members to be admitted. As it interrupts the normal business of the House, it is regarded as an extraordinary device. It involves an element of censure against the government and hence Rajya Sabha is not permitted to make use of this device. The discussion on an adjournment motion should last for not less than two hours and thirty minutes.

The right to move a motion for an adjournment of the business of the House is subject to the following restrictions:

  1. It should raise a matter which is definite, factual, urgent and of public importance;
  2. It should not cover more than one matter;
  3. It should be restricted to a specific matter of recent occurrence and should not be framed in general terms;
  4. It should not raise a question of privilege;
  5. It should not revive discussion on a matter that has been discussed in the same session;
  6. It should not deal with any matter that is under adjudication by court; and
  7. It should not raise any question that can be raised on a distinct motion.

No-Confidence Motion Article 75 of the Constitution says that the council of ministers shall be collectively responsible to the Lok Sabha. It means that the ministry stays in office so long as it enjoys confidence of the majority of the members of the Lok Sabha. In other words, the Lok Sabha can remove the ministry from office by passing a no-confidence motion. The motion needs the support of 50 members to be admitted.

It need not state the reason for adoption.

It is moved against the entire council of minister.

The purpose is to check the confidence of Lok Sabha in the Government.

The Council of minister must resign if adopted in Lok Sabha.

Censure Motion censure motion is different from a no-confidence; it should state the reason for the adoption. It can be moved against individual minister or a group of minister.

The purpose behind Censure Motion is to censure the council of ministers for specific policies and action.

The Council of minister need not resign if adopted in Lok Sabha.

Motion of Thanks: The first session after each general election and the first session of every fiscal year are addressed by the president. In this address, the president outlines the policies and programmes of the government in the preceding year and ensuing year.

This address of the president, which corresponds to the ‘speech from the Throne in Britain’, is discussed in both the Houses of Parliament on a motion called the ‘Motion of Thanks’. At the end of the discussion, the motion is put to vote.

This motion must be passed in the House (Lower). Otherwise, it amounts to the defeat of the government.

This inaugural speech of the president is an occasion available to the members of Parliament to raise discussions and debates to examine and criticise the government and administration for its lapses and failures.

No-Day-Yet-Named Motion: It is a motion that has been admitted by the Speaker but no date has been fixed for its discussion. The Speaker, after considering the state of business in the House and in consultation with the leader of the House or on the recommendation of the Business Advisory Committee, allots a day or days or part of a day for the discussion of such a motion.

Point of Order: A member can raise a point of order when the proceedings of the House do not follow the normal rules of procedure. A point of order should relate to the interpretation or enforcement of the Rules of the House or such articles of the Constitution that regulate the business of the House and should raise a question that is within the cognizance of the Speaker.

It is usually raised by an opposition member in order to control the government. It is an extraordinary device as it suspends the proceedings before the House. No debate is allowed on a point of order.

Half-an-Hour Discussion: It is meant for discussing a matter of sufficient public importance, which has been subjected to a lot of debate and the answer to which needs elucidation on a matter of fact. The Speaker can allot three days in a week for such discussions. There is no formal motion or voting before the House.

Short Duration Discussion: It is also known as two-hour discussion as the time allotted for such a discussion should not exceed two hours. The members of the Parliament can raise such discussions on a matter of urgent public importance. The Speaker can allot two days in a week for such discussions. There is neither a formal motion before the house nor voting.

Special Mention: A matter which is not a point of order or which cannot be raised during question hour, half-an hour discussion, short duration discussion or under adjournment motion, calling attention notice or under any rule of the House can be raised under the special mention in the Rajya Sabha. Its equivalent procedural device in the Lok Sabha is known as ‘Notice (Mention) Under Rule 377’.

Resolutions: The members can move resolutions to draw the attention of the House or the government to matters of general public interest.

The discussion on a resolution is strictly relevant to and within the scope of the resolution. A member who has moved a resolution or amendment to a resolution cannot withdraw the same except by leave of the House.

Resolutions are classified into three categories:

  1. Private Member’s Resolution: It is one that is moved by a private member (other than a minister). It is discussed only on alternate Fridays and in the afternoon sitting.
  2. Government Resolution: It is one that is moved by a minister. It can be taken up any day from Monday to Thursday.
  3. Statutory Resolution: It can be moved either by a private member or a minister. It is so called because it is always tabled in pursuance of a provision in the Constitution or an Act of Parliament.

Resolutions are different from motions in the following respects:

“All resolutions come in the category of substantive motions, that is to say, every resolution is a particular type of motion. All motions need not necessarily be substantive. Further, all motions are not necessarily put to vote of the House, whereas all the resolutions are required to be voted upon.

Youth Parliament

Its objectives are:

  1. to acquaint the younger generations with practices and procedures of Parliament;
  2. to imbibe the spirit of discipline and tolerance cultivating character in the minds of youth; and
  3. to inculcate in the student community the basic values of democracy and to enable them to acquire a proper perspective on the functioning of democratic institutions.

The ministry of parliamentary affairs provides necessary training and encouragement to the states in introducing the scheme.

Quorum is the minimum number of members required to be present in the House before it can transact any business. It is one-tenth of the total number of members in each House including the presiding officer. It means that there must be at least 55 members present in the Lok Sabha and 25 members present in the Rajya Sabha, if any business is to be conducted.

If there is no quorum during a meeting of the House, it is the duty of the presiding officer either to adjourn the House or to suspend the meeting until there is a quorum.

All matters at any sitting of either House or joint sitting of both the Houses are decided by a majority of votes of the members present and voting, excluding the presiding officer (Simple Majority). Only a few matters, which are specifically mentioned in the Constitution like impeachment of the President, amendment of the Constitution, removal of the presiding officers of the Parliament and so on, require special majority, not ordinary majority.

The presiding officer of a House does not vote in the first instance, but exercises a casting vote in the case of an equality of votes.

The proceedings of a House are to be valid irrespective of any unauthorized voting or participation or any vacancy in its membership.

The Constitution has declared Hindi and English to be the languages for transacting business in the Parliament. However, the presiding officer can permit a member to address the House in his mother tongue.

The attorney general of India have the right to speak and take part in the proceedings of either House, any joint sitting of both the Houses and any committee of Parliament of which he is a member, without being entitled to vote.

There are two reasons underlying this constitutional provision:

  1. A minister can participate in the proceedings of a House; of which he is not a member. In other words, a minister belonging to the Lok Sabha can participate in the proceedings of the Rajya Sabha and vice-versa.
  1. A minister, who is not a member of either House, can participate in the proceedings of both the Houses. It should be noted here that a person can remain a minister for six months, without being a member of either House of Parliament.

It refers to the last session of the existing Lok Sabha, after a new Lok Sabha has been elected. Those members of the existing Lok Sabha who could not get re-elected to the new Lok Sabha are called lame-ducks.

The parliamentary committee assists the parliament in decision making and to have a deeper look into the policy making. 

Who forms the Parliamentary Committee?

  • These parliamentary committees are formed by the president and assisted by the secretariat.  
  • The committee submits its report to the chairman/ Speaker of the house.

Types of Parliamentary Committee? 

There are two types of parliamentary committees based on the life of the committee.

  • Standing committee (Permanent in nature)
  • Ad hoc committees (Temporary in nature, formed for a particular issue)

There are two types of committee based on the nature of selection of its members.

  • Select committee
  • Joint committee

The committee has to submit its find report to the houses. However, if a member has different opinion than the final report, he may append a minute of dissent with the report.

Public Account Committee

  • This is a joint parliamentary committee.
  • The members are selected based on the principle of single transferable vote system.  It ensures the participation of all the political parties in the election of member of PAC.
  • It consists of 22 members. 15 from Loksabha and 7 from Rajyasabha.
  • The basic function of the PAC is to investigate the CAG reports.
  • It submits its audit report to the president and not the speaker of the house.
  • The president tables the report before the parliament.
  • The head of the PAC is chosen from the opposition.

The PAC checks account of CAG. The action of PAC is postpartum in nature and it actually has no control over the purse of government.

Estimate Committee of House

  • All the 30 members of the committee are from the Loksabha only and the Rajyasabha has no representation in it. 
  • The function of the committee is to oversee the estimate of the budget and public expenditure.
  • These members are elected by the Lok Sabha every year from amongst its own members. 
  • The term of office is one year.
  • A minister cannot be elected as a member of the committee.
  • The chairman of the committee is appointed by the Speaker from amongst its members and he is invariably from the ruling party.

In more detail, the functions of the committee are:

  1. To report what economies, improvements in organisation, efficiency and administrative reform consistent with the policy underlying the estimates, can be affected
  2. To suggest alternative policies in order to bring about efficiency and economy in administration.
  3. To examine whether the money is well laid out within the limits of the policy implied in the estimates
  4. To suggest the forth in which the estimates are to be presented to Parliament

Further, 

(a) It examines the budget estimates only alter they have been voted by the Parliament, and not before that.

(b) It cannot question the policy laid down by the Parliament.

(c) Its recommendations are advisory and not binding on the ministries.

(d) It examines every year only certain selected ministries and departments. Thus, by rotation, it would cover all of them over a number of years.

(e) It lacks the expert assistance of the CAG which is available to the Public Accounts Committee.

(f) Its work is in the nature of a post-mortem.

Committee on Public Undertakings

This committee was created in 1964 on the recommendation of the Krishna Menon Committee.

  • It has  22 members (15 from the Lok Sabha and 7 from the Rajya Sabha).
  • The members of this committee are elected by the Parliament every year from amongst its own members according to the principle of proportional representation by means of a single transferable vote.
  • The term of office of the members is one year.
  • A minister cannot be elected as a member of the committee.
  • The chairman of the committee is appointed by the Speaker from amongst its members who are drawn from the Lok Sabha only.
  • Thus, the members of the committee who are from the Rajya Sabha cannot be appointed as the chairman.

The functions of the committee are:

  1. To examine the reports and accounts of public undertakings
  2. To examine the reports of the Comptroller and Auditor General on public undertakings
  3. To examine whether the affairs of the public undertakings are being managed in accordance with sound business principles and prudent commercial practices. 

Departmental Standing Committees

  • The main objective of the standing committees is to secure more accountability of the Executive (i.e., the Council of Ministers) to the Parliament, particularly financial accountability.
  • They also assist the Parliament in debating the budget more effectively.
  • The 24 standing committees cover under their jurisdiction all the ministries / departments of the Central Government.
  • Each standing committee consists of 31 members (21 from Lok Sabha and 10 from Rajya Sabha). The members of the Lok Sabha are nominated by the Speaker from amongst its own members, just as the members of the Rajya Sabha are nominated by the Chairman from amongst its members.
  • A minister is not eligible to be nominated as a member of any of the standing committees.

The functions of each of the standing committees are:

  1. To consider the demands for grants of the concerned ministries / departments before they are discussed and voted in the Lok Sabha. Its report should not suggest anything of the nature of cut motions.
  2. To examine bills pertaining to the concerned ministries / departments
  3. To consider annual reports of ministries / departments
  4. To consider national basic long-term policy documents presented to the Houses

The following limitations are imposed on the functioning of these standing committees:

(i) They should not consider the matters of day-to-day administration of the concerned ministries/ departments.

(ii) They should not generally consider the matters which are considered by other parliamentary committees.

It should be noted here that the recommendations of these committees are advisory in nature and hence not binding on the Parliament.

Rules Committee

It considers the matters of procedure and conduct of business in the House and recommends necessary amendments or additions to the Rules of the House. The Lok Sabha committee consists of 15 members including the Speaker as its ex-officio chairman. In Rajya Sabha, it consists of 16 members including the Chairman as its ex-officio chairman.

Federal System

Political scientists have classified governments into unitary and federal on the basis of the nature of relations between the national government and the regional governments. 

By definition, a unitary government is one in which all the powers are vested in the national government and the regional governments, if at all exist, derive their authority from the national government. On the other hand, a federal government, is one in which powers are divided between the national government and the regional governments by the Constitution itself and both operate in their respective jurisdictions independently. Examples: Britain, France, Japan, China, Italy, Belgium, Norway, Sweden, Spain and so on have the unitary model of government while the US, Switzerland, Australia, Canada, Russia, Brazil, Argentina and so on have the federal model of government. 

Federal GovernmentUnitary Government
1. Dual Government (that is, national government and regional government)1. Single government, that is, the national government which may create regional governments
2. Written Constitution2. Constitution may be written (France) or unwritten (Britain)
3. Division of powers between the national and regional government3. No division of powers. All powers are vested in the national
government
4. Supremacy of the Constitution4. Constitution may be supreme (Japan) or may not be supreme
(Britain)
5. Rigid Constitution5. Constitution may be rigid (France) or flexible (Britain)
6. Independent judiciary6. Judiciary may be independent or may not be independent
7. Bicameral legislature7. Legislature may be bicameral (Britain) or uni-cameral (China)

1. Dual Polity: The Constitution establishes a dual polity consisting the Union at the Centre and the states at the
periphery. Each is endowed with sovereign powers to be exercised in the field assigned to them respectively by the Constitution. The Union government deals with the matters of national importance like defence, foreign affairs, currency, communication and so on. The state governments, on the other hand, look after the matters of regional and local importance like public order, agriculture, health, local government and so on.

2. Written Constitution: The Constitution is not only a written document but also the lengthiest Constitution of the world. It specifies the structure, organisation, powers and functions of both the Central and state governments and prescribes the limits within which they must operate. Thus, it avoids the misunderstandings and disagreements between the two.

3. Division of Powers: The Constitution divided the powers between the Centre and the states in terms of the Union List, State List and Concurrent List in the Seventh Schedule. The Union List consists of 100 subjects (originally 97), the State List 61 subjects (originally 66) and the Concurrent List 52 subjects (originally 47). Both the Centre and the states can make laws on the subjects of the concurrent list, but in case of a conflict, the Central law prevails. The residuary subjects (i.e. which are not mentioned in any of the three lists) are given to the Centre.

4. Supremacy of the Constitution: The Constitution is the supreme (or the highest) law of the land. The laws enacted by the Centre and the states must confirm to its provisions. Otherwise, they can be declared invalid by the Supreme Court or the high courts through their power of judicial review. Thus, the organs of the government
(legislative, executive and judicial) at both the levels must operate within the jurisdiction prescribed by the Constitution.

5. Rigid Constitution: The division of powers established by the Constitution as well as the supremacy of the Constitution can be maintained only if the method of its amendment is rigid. Hence, the Constitution is rigid to the
extent that those provisions which are concerned with the federal structure (i.e., Centre–state relations and judicial organisation) can be amended only by the joint action of the Central and state governments. Such provisions require for their amendment a special majority of the Parliament and also an approval of half of the state legislatures.

6. Independent Judiciary: The Constitution establishes an independent judiciary headed by the Supreme Court for two purposes: one, to protect the supremacy of the Constitution by exercising the power of judicial review; and two, to settle the disputes between the Centre and the states or between the states. The Constitution contains various measures like security of tenure to judges, fixed service conditions and so on to make the judiciary independent of the government.

7. Bicameralism: The Constitution provides for a bicameral legislature consisting of an Upper House (Rajya Sabha) and a Lower House (Lok Sabha). The Rajya Sabha represents the states of Indian Federation, while the Lok Sabha represents the people of India as a whole. The Rajya Sabha (even though a less powerful chamber) is required to maintain the federal equilibrium by protecting the interests of the states against the undue interference of the Centre.

1. Strong Centre: The division of powers is in favour of the Centre and highly inequitable from the federal angle.
Firstly, the Union List contains more subjects than the State List. Secondly, the more important subjects have been included in the Union List. Thirdly, the Centre has overriding authority over the Concurrent List. Finally, the residuary powers have also been left with the Centre, while in the US, they are vested in the states. Thus, the Constitution has made the Centre very strong.

2. States Not Indestructible: Unlike in other federations, the states in India have no right to territorial integrity. The Parliament can by unilateral action change the area, boundaries or name of any state. Moreover, it requires only a
simple majority and not a special majority. Hence, the Indian Federation is “an indestructible Union of destructible states”. The American Federation, on the other hand, is described as “an indestructible Union of indestructible states”.

3. Single Constitution: Usually, in a federation, the states have the right to frame their own Constitution separate from that of the Centre. In India, on the contrary, no such power is given to the states. The Constitution of India embodies not only the Constitution of the Centre but also those of the states. Both the Centre and the states must operate within this single-frame. 

4. Flexibility of the Constitution: The process of constitutional amendment is less rigid than what is found in other federations. The bulk of the Constitution can be amended by the unilateral action of the Parliament, either by simple
majority or by special majority. Further, the power to initiate an amendment to the Constitution lies only with the Centre. In US, the states can also propose an amendment to the Constitution.

5. No Equality of State Representation: The states are given representation in the Rajya Sabha on the basis of population. Hence, the membership varies from 1 to 31. In US, on the other hand, the principle of equality of representation of states in the Upper House is fully recognised. Thus, the American Senate has 100 members, two
from each state. This principle is regarded as a safeguard for smaller states. 

6. Emergency Provisions: The Constitution stipulates three types of emergencies—national, state and financial. During an emergency, the Central government becomes all powerful and the states go into the total control of the Centre. It converts the federal structure into a unitary one without a formal amendment of the Constitution. This kind of transformation is not found in any other federation.

7. Single Citizenship: In spite of a dual polity, the Constitution of India, like that of Canada, adopted the system of single citizenship. There is only Indian Citizenship and no separate state citizenship. All citizens irrespective of the state in which they are born or reside enjoy the same rights all over the country. The other federal states like US, Switzerland and Australia have dual citizenship, that is, national citizenship as well as state citizenship.

8. Integrated Judiciary: The Indian Constitution has established an integrated judicial system with the Supreme Court at the top and the state high courts below it. This single system of courts enforces both the Central laws as well as the state laws. In US, on the other hand, there is a double system of courts whereby the federal laws are enforced by the federal judiciary and the state laws by the state judiciary.

9. All-India Services: In US, the Federal government and the state governments have their separate public services. In India also, the Centre and the states have their separate public services. But, in addition, there are all-India services (IAS, IPS, and IFS) which are common to both the Centre and the states. The members of these services are recruited and trained by the Centre which also possess ultimate control over them. Thus, these services violate the principle of federalism under the Constitution.

10. Integrated Audit Machinery: The Comptroller and Auditor-General of India audits the accounts of not only the Central government but also those of the states. But, his appointment and removal is done by the president without
consulting the states. Hence, this office restricts the financial autonomy of the states. The American Comptroller-General, on the contrary, has no role with respect to the accounts of the states. 

11. Parliament’s Authority Over State List: Even in the limited sphere of authority allotted to them, the states do not have exclusive control. The Parliament is empowered to legislate on any subject of the State List if Rajya Sabha passes a resolution to that effect in the national interest. This means that the legislative competence of the Parliament can be extended without amending the Constitution. Notably, this can be done when there is no emergency of any kind.

12. Appointment of Governor:  The governor, who is the head of the state, is appointed by the President. He holds office during the pleasure of the President. He also acts as an agent of the Centre. Through him, the Centre exercises
control over the states. The American Constitution, on the contrary, provided for an elected head in
the states. In this respect, India adopted the Canadian system.

13. Integrated Election Machinery:  The Election Commission conducts elections not only to the Central legislature but also to the state legislatures. But, this body is constituted by the President and the states have no say in this matter.
The position is same with regard to the removal of its members as well. On the other hand, US has
separate machineries for the conduct of elections at the federal and state levels.

14. Veto Over State Bills:  The governor is empowered to reserve certain types of bills passed by the state legislature for the consideration of the President. The President can withhold his assent to such bills not only in the first instance but also in the second instance. Thus, the President enjoys absolute veto (and not suspensive veto) over state bills. But in US and Australia, the states are autonomous within their fields and there is no provision for any such reservation.

Centre State Relations

The Constitution provides for a three-fold distribution of legislative subjects between the Centre and the states, viz., List-I (the Union List), List-II (the State List) and List-III (the Concurrent List) in the Seventh Schedule:

  • The Parliament has exclusive powers to make laws with respect to any of the matters enumerated in the Union List. This list has at present 100 subjects (originally 971 subjects) like defence, banking, foreign affairs, currency, atomic energy, insurance, communication, inter-state trade and commerce, census, audit and so on.
  • The state legislature has “in normal circumstances” exclusive powers to make laws with respect to any of the matters enumerated in the State List. This has at present 61 subjects like public order, police, public health and sanitation, agriculture, prisons, local government, fisheries, markets, theaters, gambling and so on.
  • Both, the Parliament and state legislature can make laws with respect to any of the matters enumerated in the Concurrent List. This list has at present 52 subjects (originally 473 subjects) like criminal law and procedure, civil procedure, marriage and divorce, population control and family planning, electricity.

The power to make laws with respect to residuary subjects (i.e., the matters which are not enumerated in any of the three lists) is vested in the Parliament. This residuary power of legislation includes the power to levy residuary taxes.

  1. When Rajya Sabha Passes a Resolution (Article 249): If the Rajya Sabha declares that it is necessary in the national interest that Parliament should make laws on a matter in the State List, then the Parliament becomes competent to make laws on that matter.

Such a resolution must be supported by two-thirds of the members present and voting. The resolution remains in force for one year, it can be renewed any number of times but not exceeding one year at a time. The laws cease to have effect on the expiration of six months after the resolution has ceased to be in force.

Note: This provision does not restrict the power of a state legislature to make laws on the same matter. However, in case of inconsistency between a state law and a parliamentary law, the latter is to prevail.

  1. During a National Emergency (Article 250): The Parliament acquires the power to legislate with respect to matters in the State List, while a proclamation of national emergency is in operation. The laws become inoperative on the expiration of six months after the emergency has ceased to operate.

Here also, the power of a state legislature to make laws on the same matter is not restricted. But, in case of repugnancy between a state law and a parliamentary law, the latter is to prevail.

  1. When States Make a Request (Article 252): When the legislatures of two or more states pass resolutions requesting the Parliament to enact laws on a matter in the State List, then the Parliament can make laws for regulating that matter. A law so enacted applies only to those states which have passed the resolutions.

However, any other state may adopt it afterwards by passing a resolution to that effect in its legislature. Such a law can be amended or repealed only by the Parliament and not by the legislatures of the concerned states.

The effect of passing a resolution under the above provision is that the Parliament becomes entitled to legislate with respect to a matter for which it has no power to make a law. On the other hand, the state legislature ceases to have the power to make a law with respect to that matter. The resolution operates as abdication or surrender of the power of the state legislature with respect to that matter and it is placed entirely in the hands of Parliament which alone can then legislate with respect to it.

  1. To Implement International Agreements (Article 253): The Parliament can make laws on any matter in the State List for implementing the international treaties, agreements or conventions. This provision enables the Central government to fulfill its international obligations and commitments.
  1. During President’s Rule (Article 356 (b)): When the President’s rule is imposed in a state, the Parliament becomes empowered to make laws with respect to any matter in the State List in relation to that state. A law made so by the Parliament continues to be operative even after the president’s rule. This means that the period for which such a law remains in force is not co-terminus with the duration of the President’s rule. But, such a law can be repealed or altered or re-enacted by the state legislature.

Article 365 says that where any state has failed to comply with (or to give effect to) any directions given by the Centre, it will be lawful for the President to hold that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution. It means that, in such a situation, the President’s rule can be imposed in the state under Article 356.

The President can establish (under Article 263) an Inter-State Council to investigate and discuss subject of common interest between the Centre and the states. Such a council was set up in 1990.

Protection of the States’ Interest: To protect the interest of states in the financial matters, the Constitution lays down that the following bills can be introduced in the Parliament only on the recommendation of the President.

  • A bill which imposes or varies any tax or duty in which states are interested.
  • A bill which varies the meaning of the expression ‘agricultural income’ as defined for the purposes of the enactments relating to Indian income tax;
  • A bill which affects the principles on which moneys are or may be distributable to states; and
  • A bill which imposes any surcharge on any specified tax or duty for the purpose of the Centre.

In view of the growing pressure for the greater autonomy, in June 1983 the Union Government appointed a commission under the chairmanship of Justice R.S. Sarkaria to review the question of centre state relations. The commission submitted its report to the then Prime Minister Rajiv Gandhi on 27 October 1987.

Sarkaria Commission recommended for establishing a permanent Inter-State Council as an independent national forum for consultation accordance with article 263.

Key Recommendations:

  1. Restrain from the frequent use of article 356 of the constitution, and all possibilities of formation of an alternative government must be explored before imposing presidential rule in the state and the state assembly should not be dissolved unless the proclamation is approved by the parliament.
  2. Active politicians should not be appointed governors. When the state and the centre are ruled by different political parties, the governor should not belong to the ruling party at the centre. Further, the retiring governors should be debarred from accepting any office of profit. 
  1. The judges of high courts should not be transferred without their consent.
  1. The three-language formula should be implemented in its true spirit in all the states in the interest of unity and integrity of the country.
  1. The work of the union and the state governments affecting local people must be carried out in the local language.
  1. It did not favor disbanding of all-India services in the interest of the country’s integrity. Instead, it favored new all-India services.
  1. It favored retention of the national development council and suggested activation of the zonal councils.
  1. It found the present division of functions between the finance commission and the planning commission as reasonable and favored continuance of this arrangement. 
  1. Taxation power, which was so far in the union list, should be shifted to the concurrent list in view of the need for states to mobilize more resources.
  1. For all legislations in respect of subject on the concurrent list, there should be active consultation with the state government, except in emergent cases.
  1. States should be allowed to impose local or municipal taxes on industrial or commercial properties owned by the centre.

Conclusion: The recommendation of Sarkaria commission seeks to provide greater autonomy to states in the administrative and financial spheres.

  1. Which one of the following suggested that the Governor should be an eminent person from outside the State and should be a detached figure without intense political links or should not have taken part in politics in the recent past? (UPSC Prelims 2020)

(a) First Administrative Reforms Commission (1966)

(b) Rajamannar Committee (1969)

(c) Sarkaria Commission (1983)

(d) National Commission to Review the Working of the Constitution (2000)

Answer: C

Justification: Active politicians should not be appointed governors. When the state and the centre are ruled by different political parties, the governor should not belong to the ruling party at the centre. This is the part of recommendations of Sarkaria Commission Report.

The Inter State Council is an Indian constitutional body set up on the basis of provisions in Article 263 of the Constitution of India.

The body was formed by a Presidential Order dated 28 May 1990 on recommendation of Sarkaria Commission. The Council is formed to discussing or investigating policies, subjects of common interest, and disputes, among states and comes under Home Ministry.

The Inter State Council composes of the following members:

  1. Prime Minister, Chairman.
  2. Chief Ministers of states and union territories.
  3. Administrators of union territories.
  4. Six members of Cabinet rank.

The Council is a recommendatory body to investigate and discuss subjects, in which some or all of the states or the union government have a common interest.

It considers recommendations for the better coordination of policy and action, and also matters of general interest to the states.

The inter-state council is not a permanent constitutional body for coordination between the states and union government. It can be established ‘at any time’ if it appears to the President that the public interests would be served by the establishment of such a council.

The Central Council of Local Government was set up in 1954. It was established under Article 263 of the Constitution of India by an order of the President of India. 

The Council is an advisory body only and it doesn’t have any judicial powers.  It consists of the Minister for Urban Development in the Government of India and the ministers for local self-government in states. The Union minister acts as the Chairman of the Council.

Inter-State Relation

The Zonal Councils are Statutory bodies established by the act of the Parliament.

Each zonal council consists of the following members: (a) home minister of Central government. (b) Chief Ministers of all the States in the zone, (c) two other ministers from each state in the zone, (d) Administrator of each union territory in the zone.

Union Home minister is the chairman of the zonal council and the chief minister of state is the vice chairman of Zonal council on the rotation basis.

The Zonal Councils are the statutory (and not the constitutional) bodies. They are established by an Act of the Parliament, that is, States Reorganisation Act of 1956. The act divided the country into five zones (Northern, Central, Eastern, Western and Southern) and provided a zonal council for each zone.

Emergency Provisions

The emergency in India refers to a period of governance during which the President can overrule certain provisions of the constitution of India that ensures the fundamental rights to its citizens.

The Constitution stipulates three types of emergencies

National Emergency: An emergency due to war, external aggression or armed rebellion (Article 352). This is popularly known as ‘National Emergency’. However, the Constitution employs the expression ‘proclamation of emergency’ to denote an emergency of this type.

State Emergency: An Emergency due to the failure of the constitutional machinery in the states (Article 356). This is popularly known as ‘President’s Rule’. It is also known by two other names— ‘State Emergency’ or ‘constitutional Emergency’.

 

However, the Constitution does not use the word ‘emergency’ for this situation.

Financial Emergency due to a threat to the financial stability or credit of India (Article 360).

 

When a national emergency is declared on the ground of ‘war’ or ‘external aggression’, it is known as ‘External Emergency’. On the other hand, when it is declared on the ground of ‘armed rebellion’, it is known as ‘Internal Emergency’.

During an Emergency, the Central government becomes all powerful and the states go into the total control of the Centre.

 

A proclamation of national emergency may be applicable to the entire country or only a part of it. The 42nd Amendment Act of 1976 enabled the president to limit the operation of a National Emergency to a specified part of India.

 

Originally, the Constitution mentioned ‘internal disturbance’ as the third ground for the proclamation of a National Emergency, but the expression was too vague and had a wider connotation. Hence, the 44th Amendment Act of 1978 substituted the words ‘armed rebellion’ for ‘internal disturbance’.

 

Thus, it is no longer possible to declare a National Emergency on the ground of ‘internal disturbance’ as was done in 1975 by the Congress government headed by Indira Gandhi.

 

The 38th Amendment Act of 1975 made the declaration of a National Emergency immune from the judicial review. But, this provision was subsequently deleted by the 44th Amendment Act of 1978.

Further, in the Minerva Mills case, (1980), the Supreme Court held that the proclamation of a national emergency can be challenged in a court on the ground of malafide or that the declaration was based on wholly extraneous and irrelevant facts or is absurd or perverse.

The proclamation of Emergency must be approved by both the Houses of Parliament within one month from the date of its issue.

 

However, 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 without approving the proclamation, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha has in the meantime approved it.

 

If approved by both the Houses of Parliament, the emergency continues for six months, and can be extended to an indefinite period with an approval of the Parliament for every six months. This provision for periodical parliamentary approval was also added by the 44th Amendment Act of 1978.

 

Every resolution approving the proclamation of emergency or its continuance must be passed by either House of Parliament by a special majority that is, (a) a majority of the total membership of that house, and (b) a majority of not less than two-thirds of the members of that house present and voting.

 

This special majority provision was introduced by the 44th Amendment Act of 1978. Previously, such resolution could be passed by a simple majority of the Parliament.

A proclamation of emergency may be revoked by the President at any time by a subsequent proclamation. Such a proclamation does not require the parliamentary approval.

Further, the President must revoke a proclamation if the Lok Sabha passes a resolution disapproving its continuation. Again, this safeguard was introduced by the 44th Amendment Act of 1978.

 

The 44th Amendment Act of 1978 also provided that, where one-tenth of the total number of members of the Lok Sabha give a written notice to the Speaker (or to the president if the House is not in session), a special sitting of the House should be held within 14 days for the purpose of considering a resolution disapproving the continuation of the proclamation.

 

A resolution of disapproval is different from a resolution approving the continuation of a proclamation in the following two respects:

  1. The first one is required to be passed by the Lok Sabha only, while the second one needs to be passed by the both Houses of Parliament.
  2. The first one is to be adopted by a simple majority only, while the second one needs to be adopted by a special majority.

A proclamation of Emergency has drastic and wide ranging effects on the political system. These consequences can be grouped into three categories:

  1. Effect on the Centre-state relations,
  2. Effect on the life of the Lok Sabha and State assembly, and
  3. Effect on the Fundamental Rights.

 

(a) Executive:  During a national emergency, the executive power of the Centre extends to directing any state regarding the manner in which its executive power is to be exercised. In normal times, the Centre can give executive directions to a state only on certain specified matters. However, during a national emergency, the Centre becomes entitled to give executive directions to a state on ‘any’ matter. Thus, the state governments are brought under the complete control of the Centre, though they are not suspended.

 

(b) Legislative During a national emergency, the Parliament becomes empowered to make laws on any subject mentioned in the State List. Although the legislative power of a state legislature is not suspended, it becomes subject to the overriding power of the Parliament.

 

The laws made by Parliament on the state subjects during a National Emergency become inoperative six months after the emergency has ceased to operate.

 

Notably, while a proclamation of national emergency is in operation, the President can issue ordinances on the state subjects also, if the Parliament is not in session.

 

(c) Financial: While a proclamation of national emergency is in operation, the President can modify the constitutional distribution of revenues between the centre and the states. This means that the president can either reduce or cancel the transfer of finances from Centre to the states. Such modification continues till the end of the financial year in which the Emergency ceases to operate.

Also, every such order of the President has to be laid before both the Houses of Parliament.

 

Effect on the Life of the Lok Sabha and State Assembly: While a proclamation of National Emergency is in operation, the life of the Lok Sabha may be extended beyond its normal term (five years) by a law of Parliament for one year at a time (for any length of time). However, this extension cannot continue beyond a period of six months after the emergency has ceased to operate.

 

For example, the term of the Fifth Lok Sabha (1971–1977) was extended two times by one year at a time. Similarly, the Parliament may extend the normal tenure of a state legislative assembly (five years) by one year each time (for any length of time) during a national emergency, subject to a maximum period of six months after the Emergency has ceased to operate.

 

Effect on the Fundamental Rights:  Articles 358 and 359 describe the effect of a National Emergency on the Fundamental Rights. Article 358 deals with the suspension of the Fundamental Rights guaranteed by Article 19, while Article 359 deals with the suspension of other Fundamental Rights (except those guaranteed by Articles 20 and 21). These two provisions are explained below:

 

(a) Suspension of Fundamental Rights under Article 19: According to Article 358, when a proclamation of national emergency is made, the six Fundamental Rights under Article 19 are automatically suspended. No separate order for their suspension is required.

 

Legislative and executive actions taken during the emergency cannot be challenged even after the Emergency ceases to operate.

 

The 44th Amendment Act of 1978 restricted the scope of Article 358 in two ways. Firstly, the six Fundamental Rights under Article 19 can be suspended only when the National Emergency is declared on the ground of war or external aggression and not on the ground of armed rebellion.

 

(b) Suspension of other Fundamental Rights Article 359 authorises the president to suspend the right to move any court for the enforcement of Fundamental Rights during a National Emergency.

 

This means that under Article 359, the Fundamental Rights as such are not suspended, but only their enforcement. The said rights are theoretically alive but the right to seek remedy is suspended.

 

The suspension of enforcement relates to only those Fundamental Rights that are specified in the Presidential Order. Further, the suspension could be for the period during the operation of emergency or for a shorter period as mentioned in the order, and the suspension order may extend to the whole or any part of the country. It should be laid before each House of Parliament for approval.

 

The 44th Amendment Act of 1978 restricted the scope of Article 359 in two ways. Firstly, the President cannot suspend the right to move the Court for the enforcement of fundamental rights guaranteed by Articles 20 to 21. In other words, the right to protection in respect of conviction for offences (Article 20) and the right to life and personal liberty (Article 21) remain enforceable even during emergency.

 

Distinction between Articles 358 and 359:  The differences between Articles 358 and 359 can be summarized as follows:

  1. Article 358 is confined to Fundamental Rights under Article 19 only whereas Article 359 extends to all those Fundamental Rights whose enforcement is suspended by the Presidential Order.
  2. Article 358 automatically suspends the fundamental rights under Article 19 as soon as the emergency is declared. On the other hand, Article 359 does not automatically suspend any Fundamental Right. It only empowers the president to suspend the enforcement of the specified Fundamental Rights.
  3. Article 358 operates only in case of External Emergency (that is, when the emergency is declared on the grounds of war or external aggression) and not in the case of Internal Emergency (ie, when the Emergency is declared on the ground of armed rebellion). Article 359, on the other hand, operates in case of both External Emergency as well as Internal Emergency.

 

  1. Article 358 suspends Fundamental Rights under Article 19 for the entire duration of Emergency while Article 359 suspends the enforcement of Fundamental Rights for a period specified by the president which may either be the entire duration of Emergency or a shorter period.

 

  1. Article 358 extends to the entire country whereas Article 359 may extend to the entire country or a part of it.

 

  1. Article 358 suspends Article 19 completely while Article 359 does not empower the suspension of the enforcement of Articles 20 and 21.

 

This type of Emergency has been proclaimed three times so far—in 1962, 1971 and 1975.

 

The Emergency declared in 1975 (internal emergency) proved to be the most controversial. There was widespread criticism of the misuse of Emergency powers. In the elections held to the Lok Sabha in 1977 after the Emergency, the Congress Party led by Indira Gandhi lost and the Janta Party came to power.

 

This government appointed the Shah Commission to investigate the circumstances that warranted the declaration of an Emergency in 1975. The commission did not justify the declaration of the Emergency. Hence, the 44th Amendment Act was enacted in 1978 to introduce a number of safeguards against the misuse of Emergency provisions.

Grounds of Imposition: Article 355 imposes a duty on the Centre to ensure that the government of every state is carried on in accordance with the provisions of the Constitution. It is this duty in the performance of which the Centre takes over the government of a state under Article 356 in case of failure of constitutional machinery in state. This is popularly known as ‘President’s Rule’. It is also known as ‘State Emergency’ or ‘Constitutional Emergency’.

 

The President’s Rule can be proclaimed under Article 356 on two grounds—one mentioned in Article 356 itself and another in Article 365:

  1. Article 356 empowers the President to issue a proclamation, if he is satisfied that a situation has arisen in which the government of a state cannot be carried on in accordance with the provisions of the Constitution.

 

Notably, the president can act either on a report of the governor of the state or otherwise too (i.e., even without the governor’s report).

 

  1. Article 365 says that whenever a state fails to comply with or to give effect to any direction from the Centre, it will be lawful for the president to hold that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution.

 

Parliamentary Approval and Duration: A proclamation imposing President’s Rule must be approved by both the Houses of Parliament within two months from the date of its issue. However, if the proclamation of President’s Rule 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 two months without approving the proclamation, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha approves it in the meantime.

 

If approved by both the Houses of Parliament, the President’s Rule continues for six months. It can be extended for a maximum period of three years with the approval of the Parliament, every six months.

 

However, if the dissolution of the Lok Sabha takes place during the period of six months without approving the further continuation of the President’s Rule, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha has in the meantime approved its continuance.

 

Every resolution approving the proclamation of President’s Rule or its continuation can be passed by either House of Parliament only by a simple majority, that is, a majority of the members of that House present and voting.

 

The 44th Amendment Act of 1978 introduced a new provision to put restraint on the power of Parliament to extend a proclamation of President’s Rule beyond one year. Thus, it provided that, beyond one year, the President’s Rule can be extended by six months at a time only when the following two conditions are fulfilled:

 

  1. A proclamation of National Emergency should be in operation in the whole of India, or in the whole or any part of the state; and
  2. The Election Commission must certify that the general elections to the legislative assembly of the concerned state cannot be held on account of difficulties.

 

A proclamation of President’s Rule may be revoked by the President at any time by a subsequent proclamation. Such a proclamation does not require the parliamentary approval.

 

Consequences of President’s Rule: The President acquires the following extraordinary powers when the President’s Rule is imposed in a state:

  1. He can take up the functions of the state government and powers vested in the governor or any other executive authority in the state.
  2. He can declare that the powers of the state legislature are to be exercised by the Parliament.
  3. He can take all other necessary steps including the suspension of the constitutional provisions relating to anybody or authority in the state.

 

Therefore, when the President’s Rule is imposed in a state, the President dismisses the state council of ministers headed by the chief minister. The state governor, on behalf of the President, carries on the state administration with the help of the chief secretary of the state or the advisors appointed by the President. This is the reason why a proclamation under Article 356 is popularly known as the imposition of ‘President’s Rule’ in a state.

 

Further, the President either suspends or dissolves the state legislative assembly. The Parliament passes the state legislative bills and the state budget.

 

  1. The Parliament can delegate the power to make laws for the state to the President or to any other authority specified by him in this regard,
  2. The Parliament or in case of delegation, the President or any other specified authority can make laws conferring powers and imposing duties on the Centre or its officers and authorities,
  3. The President can authorise, when the Lok Sabha is not in session, expenditure from the state consolidated fund pending its sanction by the Parliament, and
  4. The President can promulgate, when the Parliament is not in session, ordinances for the governance of the state.

 

 

A law made by the Parliament or president or any other specified authority continues to be operative even after the President’s Rule. This means that the period for which such a law remains in force is not coterminous with the duration of the proclamation. But it can be repealed or altered or re-enacted by the state legislature.

 

It should be noted here that the President cannot assume to himself the powers vested in the concerned state high court.

 

Use of Article 356: Since 1950, the President’s Rule has been imposed on more than 100 occasions, that is, on an average twice a year. Further, on a number of occasions, the President’s Rule has been imposed in an arbitrary manner for political or personal reasons. Hence, Article 356 has become one of the most controversial and most criticized provisions of the Constitution.

 

For the first time, the President’s Rule was imposed in Punjab in 1951. By now, all most all the states have been brought under the President’s Rule, once or twice or more.

 

In a landmark judgement in Bommai case (1994), the Supreme Court upheld the validity of this proclamation on the ground that secularism is a ‘basic feature’ of the Constitution. But, the court did not uphold the validity of the imposition of the President’s Rule in Nagaland in 1988, Karnataka in 1989 and Meghalaya in 1991.

 

Dr. B R Ambedkar, while replying to the critics of this provision in the Constituent Assembly, hoped that the drastic power conferred by Article 356 would remain a ‘dead-letter’ and would be used only as a measure of last resort.

 

Scope of Judicial Review: The 38th Amendment Act of 1975 made the satisfaction of the President in invoking Article 356 final and conclusive which could not be challenged in any court on any ground. But, this provision was subsequently deleted by the 44th Amendment Act of 1978 implying that the satisfaction of the President is not beyond judicial review.

 

In Bommai case (1994), the following propositions have been laid down by the Supreme Court on imposition of President’s Rule in a state under Article 356:

  1. The presidential proclamation imposing President’s Rule is subject to judicial review.
  2. The satisfaction of the President must be based on relevant material. The action of the president can be struck down by the court if it is based on irrelevant or extraneous grounds or if it was found to be malafide or perverse.

 

  1. Burden lies on the Centre to prove that relevant material exist to justify the imposition of the President’s Rule.

 

  1. The court cannot go into the correctness of the material or its adequacy but it can see whether it is relevant to the action.
  2. If the court holds the presidential proclamation to be unconstitutional and invalid, it has power to restore the dismissed state government and revive the state legislative assembly if it was suspended or dissolved.

 

  1. The state legislative assembly should be dissolved only after the Parliament has approved the presidential proclamation. Until such approval is given, the president can only suspend the assembly. In case the Parliament fails to approve the proclamation, the assembly would get reactivated.

 

  1. Secularism is one of the ‘basic features’ of the Constitution. Hence, a state government pursuing anti-secular politics is liable to action under Article 356.

Grounds of Declaration: Article 360 empowers the president to proclaim a Financial Emergency if he is satisfied that a situation has arisen due to which the financial stability or credit of India or any part of its territory is threatened.

 

The 38th Amendment Act of 1975 made the satisfaction of the president in declaring a Financial Emergency final and conclusive and not questionable in any court on any ground. But, this provision was subsequently deleted by the 44th Amendment Act of 1978 implying that the satisfaction of the president is not beyond judicial review.

 

Parliamentary Approval and Duration:  A proclamation declaring financial emergency must be approved by both the Houses of Parliament within two months from the date of its issue. However, if the proclamation of Financial 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 two months without approving the proclamation, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the

Rajya Sabha has in the meantime approved it.

 

Once approved by both the Houses of Parliament, the Financial Emergency continues indefinitely till it is revoked. This implies two things:

  1. There is no maximum period prescribed for its operation; and
  2. Repeated parliamentary approval is not required for its continuation.

A resolution approving the proclamation of financial emergency can be passed by either House of Parliament only by a simple majority, that is, a majority of the members of that house present and voting.

 

A proclamation of Financial Emergency may be revoked by the president at any time by a subsequent proclamation. Such a proclamation does not require the parliamentary approval.

 

Effects of Financial Emergency

The consequences of the proclamation of a Financial Emergency are as follows:

  1. The executive authority of the Centre extends (a) to directing any state to observe such canons of financial propriety as are specified by it; and (b) to directions as the President may deem necessary and adequate for the purpose.
  2. Any such direction may include a provision requiring (a) the reduction of salaries and allowances of all or any class of persons serving in the state; and (b) the reservation of all money bills or other financial bills for the consideration of the President after they are passed by the legislature of the state.
  3. The President may issue directions for the reduction of salaries and allowances of (a) all or any class of persons serving the Union; and (b) the judges of the Supreme Court and the high court.

 

Thus, during the operation of a financial emergency, the Centre acquires full control over the states in financial matters. H N Kunzru, a member of the Constituent Assembly, stated that the financial emergency provisions pose a serious threat to the financial autonomy of the states.

President

The Indian President is the head of the state. He is the first citizen of India and is a symbol of solidarity, unity, and integrity of the nation.

The President is elected not directly by the people but by members of Electoral College consisting of:
1. The elected members of both the Houses of Parliament;
2. The elected members of the legislative assemblies of the states; and
3. The elected members of the legislative assemblies of the Union Territories of Delhi and Puducherry.

Thus, the nominated members do not participate in the election of the President. 

Each member of the Electoral College is given only one ballot paper. The voter, while casting his vote, is required to indicate his preferences by marking 1, 2, 3, 4, etc. against the names of candidates. This means that the voter can indicate as many preferences as there are candidates in the fray.

All doubts and disputes in connection with election of the President are inquired into and decided by the Supreme Court whose decision is final. The election of a person as President cannot be challenged on the ground that the Electoral College was incomplete.

A person to be eligible for election as President should fulfill the following qualifications:
1. He should be a citizen of India.
2. He should have completed 35 years of age.
3. He should be qualified for election as a member of the Lok Sabha.
4. He should not hold any office of profit

Further, the nomination of a candidate for election to the office of President must be subscribed by at least 50 electors as proposers and 50 electors as seconders. Every candidate has to make a security deposit of Rs 15,000 in the Reserve Bank of India. The security deposit is liable to be forfeited in case the candidate fails to secure one-sixth of the votes polled.

The oath of office to the President is administered by the Chief Justice of India and in his absence, the senior most judge of the Supreme Court available.

The President is entitled to a number of privileges and immunities. He enjoys personal immunity from legal liability for his official acts. During his term of office, he is immune from any criminal proceedings, even in respect of his personal acts. He cannot be arrested or imprisoned. However, after giving two months’ notice, civil proceedings can be instituted against him during his term of office in respect of his personal acts.

The President holds office for a term of five years from the date on which he enters upon his office. However, he can resign from his office at any time by addressing the resignation letter to the Vice- President. Further, he can also be removed from the office before completion of his term by the process of impeachment.

The President can be removed from office by a process of impeachment for ‘violation of the Constitution’. However, the Constitution does not define the meaning of the phrase ‘violation of the Constitution’.

The impeachment charges can be initiated by either House of Parliament. These charges should be signed by one-fourth members of the House (that framed the charges), and a 14 days’ notice should be given to the President. After the impeachment resolution is passed by a majority of two-thirds of the total membership of that House, it is sent to the other House, which should investigate the charges.

The President has the right to appear and to be represented at such investigation. If the other House also sustains the charges and passes the impeachment resolution by a majority of two-thirds of the total membership, then the President stands removed from his office from the date on which the bill is so passed.

The nominated members of either House of Parliament can participate in the impeachment of the President though they do not participate in his election; the elected members of the legislative assemblies of states and the Union Territories of Delhi and Puducherry do not participate in the impeachment of the President though they participate in his election.

A bill passed by the Parliament can become an act only if it receives the assent of the President. When such a bill is presented to the President for his assent, he has three alternatives (under Article 111 of the Constitution):
1. He may give his assent to the bill, or
2. He may withhold his assent to the bill, or
3. He may return the bill (if it is not a Money bill) for reconsideration of the Parliament.

However, if the bill is passed again by the Parliament with or without amendments and again presented to the President, the President must give his assent to the bill.

Thus, the President has the veto power over the bills passed by the Parliament, that is, he can withhold his assent to the bills. The object of conferring this power on the President is two-fold—(a) to prevent hasty and ill-considered legislation by the Parliament; and (b) to prevent legislation which may be unconstitutional.

The veto power enjoyed by the executive in modern states can be classified into the following four types:
1. Absolute veto that is, withholding of assent to the bill passed by the legislature.
2. Qualified veto, which can be overridden by the legislature with a higher majority. This veto is not available with the Indian president.
3. Suspense veto, which can be over ridden by the legislature with an ordinary majority.
4. Pocket veto that is, taking no action on the bill passed by the legislature.

Of the above four, the President of India is vested with three—absolute veto, suspensive veto and pocket veto. There is no qualified veto in the case of Indian President; it is possessed by the American President. The three vetos of the President of India are explained below:

Absolute Veto: It refers to the power of the President to withhold his assent to a bill passed by the Parliament. The bill then ends and does not become an act. Usually, this veto is exercised in the following two cases:
(a) With respect to private members’ bills (i.e., bills introduced by any Member of Parliament who is not a minister); and
(b) With respect to the government bills when the cabinet resigns (after the passage of the bills but before the assent by the President) and the new cabinet advises the President not to give his assent to such bills.

Suspensive veto: The veto by which a law is merely suspended until reconsidered by the legislature and becomes a law if repassed by an ordinary majority is called the suspensive veto. The President does not possess this veto in the case of money bills. The President can either give his assent to a money bill or withhold his assent to a money bill but cannot return it for the reconsideration of the Parliament. Normally, the President gives his assent to money bill as it is introduced in the Parliament with his previous permission.

Pocket Veto: In this case, the President neither ratifies nor rejects nor returns the bill, but simply keeps the bill pending for an indefinite period. This power of the President not to take any action (either positive or negative) on the bill is known as the pocket veto. The President can exercise this veto power as the Constitution does not prescribe any time-limit within which he has to take the decision with respect to a bill presented to him for his assent.

It should be noted here that the President has no veto power in respect of a constitutional amendment bill. The 24th Constitutional Amendment Act of 1971 made it obligatory for the President to give his assent to a constitutional amendment bill.

Presidential Veto over State Legislation: The President has veto power with respect to state legislation also. A bill passed by a state legislature can become an act only if it receives the assent of the governor or the President (in case the bill is reserved for the consideration of the President).

When a bill, passed by a state legislature, and is presented to the governor for his assent, he has four alternatives (under Article 200 of the Constitution):
1. He may give his assent to the bill, or
2. He may withhold his assent to the bill, or
3. He may return the bill (if it is not a money bill) for reconsideration of the state legislature, or
4. He may reserve the bill for the consideration of the President.

When a bill is reserved by the governor for the consideration of the President, the President has three alternatives (Under Article 201 of the Constitution):
1. He may give his assent to the bill, or
2. He may withhold his assent to the bill, or
3. He may direct the governor to return the bill (if it is not a money bill) for the reconsideration of the state legislature. If the bill is passed again by the state legislature with or without amendments and presented again to the President for his assent, the President is not bound to give his assent to the bill. This means that the state legislature cannot override the veto power of the President.

Further, the Constitution has not prescribed any time limit within which the President has to take decision with regard to a bill reserved by the governor for his consideration. Hence, the President can exercise pocket veto in respect of state legislation also.

Article 123 of the Constitution empowers the President to promulgate ordinances during the recess of Parliament. These ordinances have the same force and effect as an act of Parliament, but are in the nature of temporary laws.

The ordinance-making power is the most important legislative power of the President. It has been vested in him to deal with unforeseen or urgent matters. But, the exercises of this power are subject to the following four limitations:
1. He can promulgate an ordinance only when both the Houses of Parliament are not in session or when either of the two Houses of Parliament is not in session.

2. He can make an ordinance only when he is satisfied that the circumstances exist that render it necessary for him to take immediate action.

The decision of the President to issue an ordinance can be questioned in a court on the ground that the President has prorogued one House or both Houses of Parliament deliberately with a view to promulgate an ordinance on a controversial subject, so as to bypass the parliamentary decision and thereby circumventing the authority of the Parliament.

4. Every ordinance issued by the President during the recess of Parliament must be laid before both the Houses of Parliament when it reassembles. If the ordinance is approved by both the Houses, it becomes an act. If Parliament takes no action at all, the ordinance ceases to operate on the expiry of six weeks from the reassembly of Parliament. The ordinance may also cease to operate even earlier than the prescribed six weeks, if both the Houses of Parliament pass resolutions disapproving it.

If the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks is calculated from the later of those dates. This means that the maximum life of an ordinance can be six months and six weeks, in case of non-approval by the Parliament (six months being the maximum gap between the two sessions of Parliament). If an ordinance is allowed to lapse without being placed before Parliament, then the acts done and completed under it, before it ceases to operate, remain fully valid and effective.

An ordinance like any other legislation, can be retrospective, that is, it may come into force from a back date. It may modify or repeal any act of Parliament or another ordinance. It can alter or amend a tax law also. However, it cannot be issued to amend the Constitution.

Article 72 of the Constitution empowers the President to grant pardons to persons who have been tried and convicted of any offence in all cases where the:
1. Punishment or sentence is for an offence against a Union Law;
2. Punishment or sentence is by a court martial (military court); and
3. Sentence is a sentence of death.

The pardoning power of the President is independent of the Judiciary; it is an executive power. But, the President while exercising this power does not sit as a court of appeal. The object of conferring this power on the President is two-fold: (a) to keep the door open for correcting any judicial errors in the operation of law; and, (b) to afford relief from a sentence, which the President regards as unduly harsh.

The pardoning power of the President includes the following:
1. Pardon: It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments and disqualifications.

2. Commutation: It denotes the substitution of one form of punishment for a lighter form. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to a simple imprisonment.

3. Remission: It implies reducing the period of sentence without changing its character. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year.

4. Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender.

5. Reprieve: It implies a stay of the execution of a sentence (especially that of death) for a temporary period. Its purpose is to enable the convict to have time to seek pardon or commutation from the President.

The exercise of pardoning power by the President is not subject to judicial review except where the Presidential decision is arbitrary, irrational, malafide or discriminatory.

Pardoning power of the governor differs from that of the President in following two respects:
1. The President can pardon sentences inflicted by court martial (military courts) while the governor cannot.
2. The President can pardon death sentence while governor cannot.

Even if a state law prescribes death sentence, the power to grant pardon lies with the President and not the governor.

Vice President

The Vice-President, like the president, is elected not directly by the people but by the method of indirect election. He is elected by the members of an electoral college consisting of the members of both Houses of Parliament.

Thus, this Electoral College is different from the Electoral College for the election of the President in the following two respects:
1. It consists of both elected and nominated members of the Parliament (in the case of president, only elected members).
2. It does not include the members of the state legislative assemblies (in the case of President, the elected members of the state legislative assemblies are included).

Thus, the Vice-President’s election, like that of the President’s election, is held in accordance with the system of proportional representation by means of the single transferable vote and the voting is by secret ballot.

To be eligible for election as Vice-President, a person should fulfill the following qualifications:
1. He should be a citizen of India.
2. He should have completed 35 years of age.
3. He should be qualified for election as a member of the Rajya Sabha.
4. He should not hold any office of profit under the Union government or any state government or any local authority or any other public authority.

Further, the nomination of a candidate for election to the office of Vice-President must be subscribed by at least 20 electors as proposers and 20 electors as seconders. Every candidate has to make a security deposit of Rs. 15,000 in the Reserve Bank of India.

The oath of office to the Vice-President is administered by the President or some person appointed in that behalf by him.

The Vice-President holds office for a term of five years from the date on which he enters upon his office. However, he can resign from his office at any time by addressing the resignation letter to the President.

He can also be removed from the office before completion of his term. A formal impeachment is not required for his removal. He can be removed by a resolution of the Rajya Sabha passed by an absolute majority (i.e. a majority of the total members of the House) and agreed to by the Lok Sabha.

But, no such resolution can be moved unless at least 14 days of advance notice has been given. Notably, no ground has been mentioned in the Constitution for his removal.

The Vice-President can hold office beyond his term of five years until his successor assumes charge.

He is also eligible for re-election to that office. He may be elected for any number of terms.

The functions of Vice-President are two-fold:
1. He acts as the ex-officio Chairman of Rajya Sabha. In this capacity, his powers and functions are similar to those of the Speaker of Lok Sabha.
2. He acts as President when a vacancy occurs in the office of the President due to his resignation, removal, and death or otherwise. He can act as President only for a maximum period of six months within which a new President has to be elected.

Further, when the sitting President is unable to discharge his functions due to absence, illness or any other cause, the Vice-President discharges his functions until the President resumes his office.

While acting as President or discharging the functions of President, the Vice-President does not perform the duties of the office of the chairman of Rajya Sabha. During this period, those duties are performed by the Deputy Chairman of Rajya Sabha.

Salary of the vice president is decided by the Parliament (Simple Majority).

Prime Minister

The Constitution does not contain any specific procedure for the selection and appointment of the Prime Minister. Article 75 says only that the Prime Minister shall be appointed by the president.
However, this does not imply that the president is free to appoint any one as the Prime Minister. In accordance with the conventions of the parliamentary system of government, the President has to appoint the leader of the majority party in the Lok Sabha as the Prime Minister.

But, when no party has a clear majority in the Lok Sabha, then the President may exercise his personal discretion in the selection and appointment of the Prime Minister.

The main task of PMO is to help the Prime Minister in the performance of his functions as the head of the government. It is responsible for assisting him in maintaining, on the official side, liaison with union ministers, the president, governors, chief ministers, representatives of foreign governments in India and others, and on the public side, in handling various requests or complaints from members of the public addressed to the Prime Minister. It is headed politically by Prime Minister and administratively by the Principal Secretary.

Central Council of Ministers

As the Constitution of India provides for a parliamentary system of government modelled on the British pattern, the council of ministers headed by the prime minister is the real executive authority is our politico-administrative system.

The fundamental principle underlying the working of parliamentary system of government is the principle of collective responsibility. Article 75 clearly states that the council of ministers is collectively responsible to the Lok Sabha. This means that all the ministers own joint responsibility to the Lok Sabha for all their acts of omission and commission. They work as a team and swim or sink together. When the Lok Sabha passes a no-confidence motion against the council of ministers, all the ministers have to resign including those ministers who are from the Rajya Sabha.

Alternatively, the council of ministers can advise the president to dissolve the Lok Sabha on the ground that the House does not represent the views of the electorate faithfully and call for fresh elections. The President may not oblige the council of ministers that has lost the confidence of the Lok Sabha.

Article 75 also contains the principle of individual responsibility. It states that the ministers hold office during the pleasure of the president, which means that the President can remove a minister even at a time when the council of ministers enjoys the confidence of the Lok Sabha. 

However, the President removes a minister only on the advice of the Prime Minister. In case of a difference of opinion or dissatisfaction with the performance of a minister, the Prime Minister can ask him to resign or advice the President to dismiss him.

Cabinet Committees

They are extra-constitutional in emergence. In other words, they are not mentioned in the Constitution. However, the Rules of Business provide for their establishment.

They are of two types—standing and ad hoc. The former is of a permanent nature while the latter are of a temporary nature. The ad hoc committees are constituted from time to time to deal with special problems. They are disbanded after their task is completed.

They are set up by the Prime Minister according to the exigencies of the time and requirements of the situation. Hence, their number, nomenclature, and composition vary from time to time.

Their membership varies from three to eight. They usually include only Cabinet Ministers. However, the non-cabinet Ministers are not debarred from their membership.

They not only include the Ministers in charge of subjects covered by them but also include other senior Ministers.

They are mostly headed by the Prime Minister. Sometimes other Cabinet Ministers, particularly the Home Minister or the Finance Minister, also acts as their Chairman. But, in case the Prime Minister is a member of a committee, he invariably presides over it.

They not only sort out issues and formulate proposals for the consideration of the Cabinet, but also take decisions. However, the Cabinet can review their decisions.

They are an organizational device to reduce the enormous workload of the Cabinet. They also facilitate in-depth examination of policy issues and effective coordination. They are based on the principles of division of labour and effective delegation.

The following four are the important cabinet committees:
1. The Political Affairs Committee deals with all policy matters pertaining to domestic and foreign affairs.
2. The Economic Affairs Committee directs and coordinates the governmental activities in the economic sphere.
3. Appointments Committee decides all higher level appointments in the Central Secretariat, Public Enterprises, Banks and Financial Institutions.
4. Parliamentary Affairs Committee looks after the progress of government business in the Parliament.

The first three committees are chaired by the Prime Minister and the last one by the Home Minister.

Supreme Court

The judges of the Supreme Court are appointed by the president.

The chief justice is appointed by the president after consultation with such judges of the Supreme Court and high courts as he deems necessary. 

The other judges are appointed by president after consultation with the chief justice and such other judges of the Supreme Court and the high courts as he deems necessary.

The consultation with the chief justice is obligatory in the case of appointment of a judge other than Chief justice.

Appointment of Chief Justice: Supreme Court ruled that the senior most judge of the Supreme Court should alone be appointed to the office of the chief justice of India.

Qualifications of Judges:  A person to be appointed as a judge of the Supreme Court should have the following qualifications:

  1. He should be a citizen of India.
  2. He should have been a judge of a High Court (or high courts in succession) for five years; or (b) He should have been an advocate of a High Court (or High Courts in succession) for ten years; or (c) He should be a distinguished jurist in the opinion of the president.

From the above, it is clear that the Constitution has not prescribed a minimum age for appointment as a judge of the Supreme Court.

Oath or Affirmation: A person appointed as a judge of the Supreme Court, before entering upon his Office, has to make and subscribe an oath or affirmation before the President, or some person appointed by him for this purpose.

Tenure of Judges: The Constitution has not fixed the tenure of a judge of the Supreme Court. However, it makes the following three provisions in this regard:

  1. He holds office until he attains the age of 65 years.
  2. He can resign his office by writing to the president.
  3. He can be removed from his office by the President on the recommendation of the Parliament.

Removal of Judges:  A judge of the Supreme Court can be removed from his Office by an order of the president. The President can issue the removal order only after an address by Parliament has been presented to him in the same session for such removal.

The address must be supported by a special majority of each House of Parliament (i.e. a majority of the total membership of that House and a majority of not less than two-thirds of the members of that House present and voting).

The grounds of removal are two—proved misbehaviour or incapacity.

The Judges Enquiry Act (1968) regulates the procedure relating to the removal of a judge of the Supreme Court by the process of impeachment:

  1. A removal motion signed by 100 members (in the case of Lok Sabha) or 50 members (in the case of Rajya Sabha) is to be given to the Speaker/Chairman.
  2. The Speaker/Chairman may admit the motion or refuse to admit it.
  3. If it is admitted, then the Speaker/Chairman is to constitute a three-member committee to investigate into the charges.
  4. The committee should consist of (a) the chief justice or a judge of the Supreme Court, (b) a chief justice of a high court, and (c) a distinguished jurist.
  5. If the committee finds the judge to be guilty of misbehaviour or suffering from incapacity, the House can take up the consideration of the motion.
  6. After the motion is passed by each House of Parliament by special majority, an address is presented to the president for removal of the judge.
  7. Finally, the president passes an order removing the judge.

Salaries and Allowances: The salaries, allowances, privileges, leave and pension of the judges of the Supreme Court are determined from time to time by the Parliament. They cannot be varied to their disadvantage after their appointment except during a financial emergency.

Acting Chief Justice: The President can appoint a judge of the Supreme Court as an acting Chief Justice of India when:

  1. The office of Chief Justice of India is vacant; or
  2. The Chief Justice of India is temporarily absent; or
  3. The Chief Justice of India is unable to perform the duties of his office.

Ad hoc Judge: When there is a lack of quorum of the permanent judges to hold or continue any session of the Supreme Court, the Chief Justice of India can appoint a judge of a High Court as an ad hoc judge of the Supreme Court for a temporary period.

He can do so only after consultation with the chief justice of the High Court concerned and with the previous consent of the president. The judge so appointed should be qualified for appointment as a judge of the Supreme Court.

It is the duty of the judge so appointed to attend the sittings of the Supreme Court, in priority to other duties of his office and while so attending, he enjoys all the jurisdiction, powers and privileges (and discharges the duties) of a judge of the Supreme Court.

Retired Judges: At any time, the chief justice of India can request a retired judge of the Supreme Court or a retired judge of a high court (who is duly qualified for appointment as a judge of the Supreme Court) to act as a judge of the Supreme Court for a temporary period.

He can do so only with the previous consent of the president and also of the person to be so appointed. Such a judge is entitled to such allowances as the president may determine.

He will also enjoy all the jurisdiction, powers and privileges of a judge of Supreme Court. But, he will not otherwise be deemed to be a judge of the Supreme Court.

Q. With reference to the Constitution of India, prohibitions or limitations or provisions contained in ordinary laws cannot act as prohibitions or limitations on the constitutional powers under Article 142. It could mean which one of the following?

(a) The decisions taken by the Election Commission of India while discharging its duties cannot be challenged in any court of law.

(b) The Supreme Court of India is not constrained in the exercise of its powers by laws made by the Parliament.

(c) In the event of grave financial crisis in the country, the President of India can declare Financial Emergency without the counsel from the Cabinet.

(d) State Legislatures cannot make laws on certain matters without the concurrence of Union Legislature.

(UPSC Prelims 2020)

Answer: B

Explanation: Article 142 of Constitution of India deals with Enforcement of orders of the Supreme Court. It states that the Apex Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing “complete justice” in any case pending before it.

Such orders of the Supreme Court are enforceable throughout the territory of India as prescribed by any law made by Parliament or order of the President of India.

So, what if you are completely unware of Article 142?

Still you have to attempt the question.

Eliminate option a: Any one can challenge the decision of Election Commission in the court.

Eliminate option c: President of India can declare Financial Emergency only after the recommendation from the Cabinet.

Eliminate option d: The Constitutional cases or references made by the President under Article 143 are decided by a Bench consisting of at least five judges.

Original Jurisdiction

Any dispute between:

(a) The Centre and one or more states; or

(b) The Centre and any state or states on one side and one or more states on the other; or

(c) Between two or more states.

In the above federal disputes, the Supreme Court has exclusive original jurisdiction. Exclusive means, no other court can decide such disputes and original means, the power to hear such disputes in the first instance, not by way of appeal.

Note: The dispute between Centre and UTs are not covered under original jurisdiction.

Writ Jurisdiction

The Constitution has constituted the Supreme Court as the guarantor and defender of the fundamental rights of the citizens.

The Supreme Court is empowered to issue writs including habeas corpus, mandamus, prohibition, quo-warrento and certiorari for the enforcement of the fundamental rights of an aggrieved citizen.

In this regard, the Supreme Court has original jurisdiction in the sense that an aggrieved citizen can directly go to the Supreme Court, not necessarily by way of appeal. However, the writ jurisdiction of the Supreme Court is not exclusive.

The high courts are also empowered to issue writs for the enforcement of the Fundamental Rights. It means, when the Fundamental Rights of a citizen are violated, the aggrieved party has the option of moving either the high court or the Supreme Court directly.

There is also a difference between the writ jurisdiction of the Supreme Court and that of the high court. The Supreme Court can issue writs only for the enforcement of the Fundamental Rights and not for other purposes.

The high court, on the other hand, can issue writs not only for the enforcement of the fundamental rights but also for other purposes. It means that the writ jurisdiction of the high court is wider than that of the Supreme Court.

But, the Parliament can confer on the Supreme Court, the power to issue writs for other purposes also.

Appellate Jurisdiction

The Supreme Court is primarily a court of appeal and hears appeals against the judgement of the lower courts.

(a) Appeals in constitutional matters.

(b) Appeals in civil matters.

(c) Appeals in criminal matters.

(d) Appeals by special leave.

(a) Constitutional Matters: In the constitutional cases, an appeal can be made to the Supreme Court against the judgement of a high court if the high court certifies that the case involves a substantial question of law that requires the interpretation of the Constitution.

(b) Civil Matters: In civil cases, an appeal lies to the Supreme Court from any judgement of a high court if the high court certifies that the case involves a substantial question of law of general importance.

(c) Criminal Matters: The Supreme Court hears appeals against the judgement in a criminal proceeding of a high court if the high court—

(1) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or

(ii) has taken before itself any case from any subordinate court and convicted the accused person and sentenced him to death; or

(iii) Certifies that the case is a fit one for appeal to the Supreme Court.

Advisory Jurisdiction

The Constitution (Article 143) authorises the president to seek the opinion of the Supreme Court in the two categories of matters:

(a) On any question of law or fact of public importance which has arisen or which is likely to arise.

(b) On any dispute arising out of any pre-constitution treaty, agreement.

In the first case, the Supreme Court may tender or may refuse to tender its opinion to the president.

However, in the second case, the Supreme Court ‘must’ tender its opinion to the president.

In both the cases, the opinion expressed by the Supreme Court is only advisory and not a judicial pronouncement.

Hence, it is not binding on the president, he may follow or may not follow the opinion. However, it facilitates the government to have an authoritative legal opinion on a matter to be decided by it.

So far (2013), the President has made fifteen references to the Supreme Court under its advisory jurisdiction (also known as consultative jurisdiction).

A Court of Record: (a) The judgements, proceedings and acts of the Supreme Court are recorded for perpetual memory and testimony. These records are admitted to be of evidentiary value and cannot be questioned when produced before any court. They are recognised as legal precedents and legal references.

(b) It has power to punish for contempt of court, either with simple imprisonment for a term up to six months or with fine up to `2,000 or with both.

In 1991, the Supreme Court has ruled that it has power to punish for contempt not only of itself but also of high courts, subordinate courts and tribunals functioning in the entire country.

Contempt of court may be civil or criminal. Civil contempt means wilful disobedience to any judgement, order, writ or other process of a court or wilful breach of an undertaking given to a court.

Criminal contempt means the publication of any matter or doing an act which— (1) scandalises or lowers the authority of a court; or (ii) prejudices or interferes with the due course of a judicial proceeding; or (iii) interferes or obstructs the administration of justice in any other manner.

However, innocent publication and distribution of some matter, fair and accurate report of judicial proceedings, fair and reasonable criticism of judicial acts and comment on the administrative side of the judiciary do not amount to contempt of court.

Power of Judicial Review

Judicial review is the power of the Supreme Court to examine the constitutionality of legislative enactments and executive orders of both the Central and state governments. On examination, if they are found to be violative of the Constitution (ultra-vires), they can be declared as illegal, unconstitutional and invalid (null and void) by the Supreme Court. Consequently, they cannot be enforced by the Government.

Judicial review is needed for the following reasons:

(a) To uphold the principle of the supremacy of the Constitution.

(b) To maintain federal equilibrium (balance between Centre and states).

(c) To protect the fundamental rights of the citizens.

Though the phrase ‘Judicial Review’ has nowhere been used in the Constitution, the provisions of several articles explicitly confer the power of judicial review on the Supreme Court. The constitutional validity of a legislative enactment or an executive order can be challenged in the Supreme Court on the following three grounds:

(a) it infringes the Fundamental Rights (Part III),

(b) it is outside the competence of the authority which has framed it, and

(c) it is repugnant to the constitutional provisions.

Other Powers

Besides the above, the Supreme Court has numerous other powers:

(a) It decides the disputes regarding the election of the president and the vice-president. In this regard, it has the original, exclusive and final authority.

(b) It enquires into the conduct and behavior of the chairman and members of the Union Public Service Commission on a reference made by the president. If it finds them guilty of misbehaviour, it can recommend to the president for their removal. The advice tendered by the Supreme Court in this regard is binding on the President.

(c) It has power to review its own judgement or order. Thus, it is not bound by its previous decision and can depart from it in the interest of justice or community welfare.

In brief, the Supreme Court is a self-correcting agency. For example, in the Kesavananda Bharati case (1973), the Supreme Court departed from its previous judgement in the Golak Nath case (1967).

(d) It is authorised to withdraw the cases pending before the high courts and dispose them by itself.

(e) Its law is binding on all courts in India. Its decree or order is enforceable throughout the country. All authorities (civil and judicial) in the country should act in aid of the Supreme Court.

(f) It is the ultimate interpreter of the Constitution. It can give final version to the spirit and content of the provisions of the Constitution.

(g) It has power of judicial superintendence and control over all the courts and tribunals functioning in the entire territory of the country.

The Supreme Court’s jurisdiction and powers with respect to matters in the Union list can be enlarged by the Parliament. Further, its jurisdiction and powers with respect to other matters can be enlarged by a special agreement of the Centre and the states.

National Judicial Appointments Commission: National Judicial Appointments Commission (NJAC) was a proposed body which would have been responsible for the appointment and transfer of judges to the higher judiciary in India.

The Commission was established by amending the Constitution of India through the ninety-ninth constitution amendment vide the Constitution (Ninety-Ninth Amendment) Act, 2014.

The NJAC would have replaced the collegium system for the appointment of judges as invoked by the Supreme Court.

The NJAC Bill and the Constitutional Amendment Bill, was ratified by 16 of the state legislatures in India, and subsequently assented by the President of India Pranab Mukherjee on 31 December 2014. The NJAC Act and the Constitutional Amendment Act came into force from 13 April 2015.

Constitution Bench of Supreme Court by 4:1 Majority upheld the collegium system and struck down the NJAC as unconstitutional.

A new article, Article 124A, (which provides for the composition of the NJAC) has been inserted into the Constitution.

Composition of NJAC:  As per the amended provisions of the constitution, the Commission would have consisted of the following six persons: Chief Justice of India (Chairperson, ex officio), Two other senior judges of the Supreme Court next to the Chief Justice of India – ex officio The Union Minister of Law and Justice, two eminent persons These (two) eminent persons would have been nominated by a committee consisting of the Chief Justice of India, Prime Minister of India.

Functions of the Commission

As per the amended constitution, the functions of the Commission would have included the following:

  1. Recommending persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts.
  2. Recommending transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court.
  3. Ensuring that the persons recommended are of ability, merit and other criteria mentioned in the regulations related to the act.

The Collegium system: This is one where the Chief Justice of India and a forum of four senior most judges of the Supreme Court recommend appointments and transfers of judges. However, it has no place in the Indian Constitution. The system was evolved through Supreme Court judgments in the Three Judges Cases.

Recently the collegium system has recommended the names of judges to be appointed in the higher judiciary, but the government has delayed the clearance of proposal citing that the delay is from high court.

Supreme Court has said that the independence of judiciary is the basis structure of the constitution.

Governor

Articles 153 to 167 in Part VI of the Constitution deal with the state executive, the state executive consists of the governor, the chief minister, the council of ministers and the advocate general of the state.

The governor is the chief executive head of the state. But, like the president, he is a nominal executive head (titular or constitutional head). The governor also acts as an agent of the central government.

Therefore, the office of governor has a dual role.

Usually, there is a governor for each state, but the 7th Constitutional Amendment Act of 1956 facilitated the appointment of the same person as a governor for two or more states.

Salary of governors is revised by parliament.

The governor is neither directly elected by the people nor indirectly elected by a specially constituted electoral college as is the case with the president. He is appointed by the president by warrant under his hand and seal.

In a way, he is a nominee of the Central government. But, as held by the Supreme Court in 1979, the office of governor of a state is not an employment under the Central government.

 

It is an independent constitutional office and is not under the control of or subordinate to the Central government.

 

The Draft Constitution provided for the direct election of the governor on the basis of universal adult suffrage. But the Constituent Assembly opted for the present system of appointment of governor by the president because of the following reasons:

 

  1. The direct election of the governor is incompatible with the parliamentary system established in the states.
  1. The mode of direct election is more likely to create conflicts between the governor and the chief minister.
  1. The governor being only a constitutional (nominal) head, there is no point in making elaborate arrangements for his election and spending huge amount of money.
  2. The election of a governor would be entirely on personal issues. Hence, it is not in the national interest to involve a large number of voters in such an election.
  3. An elected governor would naturally belong to a party and would not be a neutral person and an impartial head.
  4. The election of governor would create separatist tendencies and thus affect the political stability and unity of the country.
  5. The system of presidential nomination enables the Centre to maintain its control over the states.
  6. The direct election of the governor creates a serious problem of leadership at the time of a general election in the state.
  7. The chief minister would like his nominee to contest for governorship. Hence, a second rate man of the ruling party is elected as governor.

Therefore, the American model, where the Governor of a state is directly elected, was dropped and the Canadian model, where the governor of a province (state) is appointed by the Governor-General (Centre), was accepted in the Constituent Assembly.

 

The Constitution lays down only two qualifications for the appointment of a person as a governor.

These are:

  1. He should be a citizen of India.
  2. He should have completed the age of 35 years.

Additionally, two conventions have also developed in this regard over the years. First, he should be an outsider, that is, he should not belong to the state where he is appointed, so that he is free from the local politics. Second, while appointing the governor, the president is required to consult the chief minister of the state concerned, so that the smooth functioning of the constitutional machinery in the state is ensured. However, both the conventions have been violated in some of the cases.

 

His emoluments and allowances cannot be diminished during his term of office. In 2008, the Parliament has increased the salary of the governor from 36,000 to 1.10 lakh per month.

 

Like the President, the governor is also entitled to a number of privileges and immunities. He enjoys personal immunity from legal liability for his official acts. During his term of office, he is immune from any criminal proceedings, even in respect of his personal acts.

 

He cannot be arrested or imprisoned. However, after giving two months’ notice, civil proceedings can be instituted against him during his term of office in respect of his personal acts.

 

Before entering upon his office, the governor has to make and subscribe to an oath or affirmation.

In his oath, the governor swears:

(a) to faithfully execute the office;

(b) to preserve, protect and defend the Constitution and the law; and

(c) to devote himself to the service and well-being of the people of the state.

 

The oath of office to the governor is administered by the chief justice of the concerned state high court and in his absence, the senior-most judge of that court available.

 

Every person discharging the functions of the governor also undertakes the similar oath or affirmation.

A governor holds office for a term of five years from the date on which he enters upon his office. However, this term of five years is subject to the pleasure of the President. Further, he can resign at any time by addressing a resignation letter to the President.

The Supreme Court held that the pleasure of the President is not justifiable. The governor has no security of tenure and no fixed term of office. He may be removed by the President at any time.

A governor possesses executive, legislative, financial and judicial powers more or less analogous to the President of India. However, he has no diplomatic, military or emergency powers like the president.

The powers and functions of the governor can be studied under the following heads:

  1. Executive powers.
  2. Legislative powers.
  3. Financial powers.
  4. Judicial powers.

Executive powers: He appoints the state election commissioner and determines his conditions of service and tenure of office. However, the state election commissioner can be removed only in like manner and on the like grounds as a judge of a high court.

 

He appoints the chairman and members of the state public service commission. However, they can be removed only by the president and not by a governor.

 

He can require the chief minister to submit for the consideration of the council of ministers any matter on which a decision has been taken by a minister but which has not been considered by the council.

 

He can recommend the imposition of constitutional emergency in a state to the president. During the period of President’s rule in a state, the governor enjoys extensive executive powers as an agent of the President.

 

He acts as the chancellor of universities in the state. He also appoints the vice-chancellors of universities in the state.

 

Legislative Powers

A governor is an integral part of the state legislature. In that capacity, he has the following legislative powers and functions:

  1. He can summon or prorogue the state legislature and dissolve the state legislative assembly.
  2. He can address the state legislature at the commencement of the first session after each general election and the first session of each year.
  3. He can send messages to the house or houses of the state legislature, with respect to a bill pending in the legislature or otherwise.
  4. He can appoint any member of the State legislative assembly to preside over its proceedings when the offices of both the Speaker and the Deputy Speaker fall vacant. Similarly, he can appoint any member of the state legislature council to preside over its proceedings when the offices of both Chairman and Deputy Chairman fall vacant.
  5. He nominates one-sixth of the members of the state legislative council from amongst persons having special knowledge or practical experience in literature, science, art, cooperative movement and social service.
  6. He can nominate one member to the state legislature assembly from the Anglo-Indian Community.
  7. He decides on the question of disqualification of members of the state legislature in consultation with the Election Commission.
  8. When a bill is sent to the governor after it is passed by state legislature, he can:

(a) Give his assent to the bill, or

(b) Withhold his assent to the bill, or

(c) Return the bill (if it is not a money bill) for reconsideration of the state legislature.

 

However, if the bill is passed again by the state legislature with or without amendments, the governor has to give his assent to the bill, or

(d) Reserve the bill for the consideration of the president. In one case such reservation is obligatory, that is, where the bill passed by the state legislature endangers the position of the state high court. In addition, the governor can also reserve the bill if it is of the following nature:

(i) Ultra-vires, that is, against the provisions of the Constitution.

(ii) Opposed to the Directive Principles of State Policy.

(iii) Against the larger interest of the country.

(iv) Of grave national importance.

(v) Dealing with compulsory acquisition of property under Article 31A of the Constitution.

 

  1. He can promulgate ordinances when the state legislature is not in session. These ordinances must be approved by the state legislature within six weeks from its reassembly. He can also withdraw an ordinance anytime. This is the most important legislative power of the governor.
  1. He lays the reports of the State Finance Commission, the State Public Service Commission and the Comptroller and Auditor-General relating to the accounts of the state, before the state legislature.

Financial Powers

The financial powers and functions of the governor are:

  1. He sees that the Annual Financial Statement (state budget) is laid before the state legislature.
  2. Money bills can be introduced in the state legislature only with his prior recommendation.
  3. No demand for a grant can be made except on his recommendation.
  4. He can make advances out of the Contingency Fund of the state to meet any unforeseen expenditure.
  5. He constitutes a finance commission after every five years to review the financial position of the Panchayats and the municipalities.

Judicial Powers

The judicial powers and functions of the governor are:

  1. He can grant pardons, reprives, respites and remissions of punishment or suspend, remit and commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the state extends.
  2. He is consulted by the president while appointing the judges of the concerned state high court.
  3. He makes appointments, postings and promotions of the district judges in consultation with the state high court.
  4. He also appoints persons to the judicial service of the state (other than district judges) in consultation with the state high court and the State Public Service Commission.

In estimating the constitutional position of the governor, particular reference has to be made to the provisions of Articles 154, 163 and 164. These are:

(a) The executive power of the state shall be vested in the governor and shall be exercised by him either directly or through officer’s subordinate to him in accordance with this Constitution (Article 154).

(b) There shall be a council of ministers with the chief minister as the head to aid and advice the governor in the exercise of his functions, except in so far as he is required to exercise his functions in his discretion (Article 163).

(c) The council of ministers shall be collectively responsible to the legislative assembly of the state (Article 164).

 

This provision is the foundation of the parliamentary system of government in the state.

 

From the above, it is clear that constitutional position of the governor differs from that of the president in the following two respects:

  1. While the Constitution envisages the possibility of the governor acting at times in his discretion, no such possibility has been envisaged for the President.
  2. after the 42nd Constitutional Amendment (1976), ministerial advice has been made binding on the President, but no such provision has been made with respect to the governor.

The Constitution makes it clear that if any question arises whether a matter falls within the governor’s discretion or not, the decision of the governor is final and the validity of anything done by him cannot be called in question on the ground that he ought or ought not to have acted in his discretion.

The governor has constitutional discretion in the following cases:

  1. Reservation of a bill for the consideration of the President.
  2. Recommendation for the imposition of the President’s Rule in the state.
  3. While exercising his functions as the administrator of an adjoining union territory (in case of additional charge).
  4. Determining the amount payable by the Government of Assam, Meghalaya, Tripura and Mizoram to an autonomous Tribal District Council as royalty accruing from licenses for mineral exploration.
  5. Seeking information from the chief minister with regard to the administrative and legislative matters of the state.

Chief Minister

The term of the Chief Minister is not fixed and he holds office during the pleasure of the governor. However, this does not mean that the governor can dismiss him at any time. He cannot be dismissed by the governor as long as he enjoys the majority support in the legislative assembly but, if he loses the confidence of the assembly, he must resign or the governor can dismiss him.

(a) He is the chairman of the State Planning Board.

(b) He acts as a vice-chairman of the concerned zonal council by rotation, holding office for a period of one year at a time.

(c) He is a member of the Inter-State Council and the National Development Council, both headed by the prime minister.

(d) He is the chief spokesman of the state government.

(e) He is the crisis manager-in-chief at the political level during emergencies.

(f) As a leader of the state, he meets various sections of the people and receives memoranda from them regarding their problems, and so on.

(g) He is the political head of the services.

The following provisions of the Constitution deal with the relationship between the governor and the Chief Minister:

  1. Article 163: There shall be a council of ministers with the Chief Minister as the head to aid and advice the governor on the exercise of his functions, except in so far as he is required to exercise his functions or any of them in his discretion.
  1. Article 164: The Chief Minister shall be appointed by the governor and other ministers shall be appointed by the governor on the advice of the Chief Minister.

The ministers shall hold office during the pleasure of the governor and The council of ministers shall be collectively responsible to the legislative assembly of the state.

 

  1. Article 167: It shall be the duty of the Chief Minister:

(a) To communicate to the governor of the state all decisions of the council of ministers relating to the administration of the affairs of the state and proposals for legislation;

 

(b) To furnish such information relating to the administration of the affairs of the state and proposals for legislation as the governor may call for; and

 

(c) If the governor so requires, to submit for the consideration of the council of ministers any matter on which a decision has been taken by a minister but which has not been considered by the council.

State Council of Minister

Article 163 of Indian Constitution provides for the Council of Ministers to aid and advice Governor. If any question arises whether a matter falls within the Governor’s discretion or not, decision of the Governor shall be final and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.

The advice tendered by Ministers to the Governor shall not be inquired into in any court.

Union Public Service Commission

It is an independent constitutional body directly created by the Constitution.

Composition: The UPSC consists of a chairman and other members appointed by the president of India.

The chairman and members of the Commission hold office for a term of six years or until they attain the age of 65 years, whichever is earlier.

Removal: The President can remove the chairman or any other member of UPSC from the office under the following circumstances:

(a) If he is adjudged an insolvent (that is, has gone bankrupt);

(b) If he engages, during his term of office, in any paid employment outside the duties of his office; or

(c) If he is, in the opinion of the president, unfit to continue in office by reason of infirmity of mind or body.

In addition to these, the president can also remove the chairman or any other member of UPSC for misbehavior. However, in this case, the president has to refer the matter to the Supreme Court for an enquiry. If the Supreme Court, after the enquiry, upholds the cause of removal and advises so, the president can remove the chairman or a member. Under the provisions of the Constitution, the advice tendered by the Supreme Court in this regard is binding on the president.

The entire expenses including the salaries, allowances and pensions of the chairman and members of the UPSC are charged on the Consolidated Fund of India. Thus, they are not subject to vote of Parliament.

The chairman of UPSC (on ceasing to hold office) is not eligible for further employment in the Government of India or a state.

A member of UPSC (on ceasing to hold office) is eligible for appointment as the chairman of UPSC or a State Public Service Commission (SPSC), but not for any other employment in the Government of India or a state.

State Public Service Commission

Articles 315 to 323 in Part XIV of the Constitution deal with the composition, appointment and removal of members, power and functions and independence of a SPSC.

Terms: The chairman and members of the Commission hold office for a term of six years or until they attain the age of 62 years, whichever is earlier (in the case of UPSC, the age limit is 65 years). However, they can relinquish their offices at any time by addressing their resignation to the governor.

Removal: Although the chairman and members of a SPSC are appointed by the governor, they can be removed only by the president (and not by the governor).

The president can remove them on the same grounds and in the same manner as he can remove a chairman or a member of the UPSC.

Thus, he can remove him under the following circumstances:

(a) If he is adjudged an insolvent (i.e., has gone bankrupt); or

(b) If he engages, during his term of office, in any paid employment outside the duties of his office; or

(c) If he is, in the opinion of the president, unfit to continue in office by reason of infirmity of mind or body.

In addition to these, the president can also remove the chairman or any other member of SPSC for misbehavior. However, in this case, the president has to refer the matter to the Supreme Court for an enquiry. If the Supreme Court, after the enquiry, upholds the cause of removal and advises so, the president can remove the chairman or a member.

Under the provisions of the Constitution, the advice tendered by the Supreme Court in this regard is binding on the president.

Further, the Constitution has also defined the term ‘misbehaviour’ in this context.

Joint Public Service Commission

The Constitution makes a provision for the establishment of a Joint State Public Service Commission (JSPSC) for two or more states.

While the UPSC and the SPSC are created directly by the Constitution, a JSPSC can be created by an act of Parliament on the request of the state legislatures concerned.

Thus, a JSPSC is a statutory and not a constitutional body. The two states of Punjab and Haryana had a JSPSC for a short period, after the creation of Haryana out of Punjab in 1966.

The chairman and members of a JSPSC are appointed by the president. They hold office for a term of six years or until they attain the age of 62 years, whichever is earlier.

They can be suspended or removed by the president. They can also resign from their offices at any time by submitting their resignation letters to the president.

The chairman and members of a JSPSC are appointed by the president. They hold office for a term of six years or until they attain the age of 62 years, whichever is earlier.

They can be suspended or removed by the president. They can also resign from their offices at any time by submitting their resignation letters to the president.

Uniform Civil Code

Amid the row over wearing hijab in schools and colleges, an Union Minister   has said the Uniform Civil Code (UCC) is the “need of the hour” and it should be discussed both in Parliament and in society.

  • The UCC means formulation of one law to be made applicable to all religious communities in matters such
    as marriage, divorce, inheritance and adoption.

ARC Report

What is governance?

Governance is the “Good governance is the most important factor to eradicate poverty” – Kofi Annan.

 “The 2nd Administrative Reforms Commission’s ARC (2005) includes 15 reports on on wide range of topics. The aim of the report was to introduce required reforms in the administrative system.  

1st Report Recommendation: Right to Information

  • Repeal the ‘Official Secret Act 1923’. The government did not accepted this recommendation as the official, secret act is a tool to check espionage. 
  • Ministers to take the “Oath of Transparency” in place of “Oath of Secrecy”. 

1st ARC Report

The 2nd Administrative Reforms Commission’s ARC (2005) includes 15 reports on on wide range of topics. The aim of the report was to introduce required reforms in the administrative system.  

1st Report Recommendation: Right to Information

  • Repeal the ‘Official Secret Act 1923’. The government did not accepted this recommendation as the official, secret act is a tool to check espionage. 
  • Ministers to take the “Oath of Transparency” in place of “Oath of Secrecy”. 

2nd ARC Report

The 2nd Administrative Reforms Commission’s ARC (2005) includes 15 reports on on wide range of topics. The aim of the report was to introduce required reforms in the administrative system.  

1st Report Recommendation: Right to Information

  • Repeal the ‘Official Secret Act 1923’. The government did not accepted this recommendation as the official, secret act is a tool to check espionage. 
  • Ministers to take the “Oath of Transparency” in place of “Oath of Secrecy”. 

Extra

The 2nd Administrative Reforms Commission’s ARC (2005) includes 15 reports on on wide range of topics. The aim of the report was to introduce required reforms in the administrative system.  

1st Report Recommendation: Right to Information

  • Repeal the ‘Official Secret Act 1923’. The government did not accepted this recommendation as the official, secret act is a tool to check espionage. 
  • Ministers to take the “Oath of Transparency” in place of “Oath of Secrecy”. 

Anti defection law

The act lays the ground of disqualification in case of defection.

  • Anti-defection law was passed by the Indian Parliament in the year 1985 (Rajeev Gandhi Government).
  • The act was passed under 52nd constitutional amendment to the parliament.
  • The act was further amended by 91st amendment to the constitution.
  • Through 91st amendments, the clause of split was deleted.

Grounds of disqualification under anti defection law

  • If a member of one political party joins the other political party, then his candidature will be canceled.
  • If the elected member castes his vote against the directive of the political party, his candidature will be cancelled.
  • If an independent member joins a political party.
  • If a nominated member joins the political party after 06 months of being elected.

The anti-defection law does not apply in the following cases

• If the speaker of the house resigns from the political party and rejoins it after he ceases to hold the post of the speaker.
• In case there is a merger of two third of strength of a political party into some other political party.

Federal System

Indian as the union of States

The Constitution of India provides for a federal system of government in the country. However, the term ‘federation’ has nowhere been used in the Constitution. Instead, Article 1 of the Constitution describes India as a ‘Union of States’. 

The Constitution divided the powers between the Centre and the states in terms of the Union List, State List and Concurrent List in the Seventh Schedule. The Union List consists of 100 subjects (originally 97), the State List 61 subjects (originally 66) and the Concurrent List 52 subjects (originally 47).

Both the Centre and the states can make laws on the subjects of the concurrent list, but in case of a conflict, the Central law prevails. The residuary subjects (i.e. which are not mentioned in any of the three lists) are given to the Centre.

Constitution is rigid to the extent that those provisions which are concerned with the federal structure (i.e., Centre–state relations and judicial organisation) can be amended only by the joint action of the Central and state governments. Such provisions require for their amendment a special majority of the Parliament and also an approval of half of the state legislatures.

The Parliament is empowered to legislate on any subject of the State List if Rajya Sabha passes a resolution to that effect (By special majority) in the national interest. This means that the legislative competence of the Parliament can be extended without amending the Constitution. Notably, this can be done when there is no emergency of any kind.

Tools in Democracy

Initiative: It is a method by means of which the people can propose a bill to the legislature for enactment.

Referendum: A referendum is a procedure whereby proposed legislation is referred to the electorate for settlement by their direct votes. 
Recall : It is a method by means of which the voters can remove a representative or an officer before the expiry of his term when he fails to discharge his duties properly. 
Plebiscite: A plebiscite is a method of obtaining the opinion of people on any issue of public importance. It is a direct vote of the qualified electors of a state in regard to some important public question.

Directive Principle of State Policy DPSP

The phrase ‘Directive Principles of State Policy’ denotes the ideals that the State should keep in mind while formulating policies and enacting laws. These are the constitutional instructions or recommendations to the State in legislative, executive and administrative matters.

According to Article 36, the term ‘State’ in Part IV has the same meaning as in Part III dealing with Fundamental Rights. Therefore, it includes the legislative and executive organs of the central and state governments, all local authorities and all other public authorities in the country.

The Directive Principles resemble the ‘Instrument of Instructions’ enumerated in the Government of India Act of 1935.

In the words of Dr. B R Ambedkar, ‘the Directive Principles are like the instrument of instructions, which were issued to the Governor-General and to the Governors of the colonies of India by the British Government under the Government of India Act of 1935.

What is called Directive Principles is merely another name for the instrument of instructions. The only difference is that they are instructions to the legislature and the executive’.

The idea has been taken from Irish constitution.  These are the instruction for states acting as the legislature or as executive.  The directive principle of state policy is not enforceable in the court but since these have been mentioned in the constitution of India hence it is considered to be fundamental in the governance of the state.

It promotes the concept of a ‘welfare state’ and not that of a ‘police state’, which existed during the colonial era. In brief, they seek to establish economic and social democracy in the country. 

Q22. Which part of the constitution of India declares the ideals of welfare state?

(a) Directive Principles of State policy

(b) Fundamental Rights

(c) Preamble

(d) Seventh schedule

(UPSC Prelims 2020)

Answer: A

The Directive Principles are non-justiciable in nature, that is, they are not legally enforceable by the courts for their violation. Therefore, the government (Central, state and local) cannot be compelled to implement them.

Nevertheless, the Constitution (Article 37) itself says that these principles are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

The Directive Principles, though non-justiciable in nature, help the courts in examining and determining the constitutional validity of a law. The Supreme Court has ruled many a times that in determining the constitutionality of any law, if a court finds that the law in question seeks to give effect to a Directive Principle, it may consider such law to be ‘reasonable’ in relation to Article 14 (equality before law) or Article 19 (six freedoms) and thus save such law from unconstitutionality.

Q18. With reference to the provisions contained in Part IV of the Constitution of India, which of the following statements is/are correct?

  1. They shall be enforceable by courts.
  2. They shall not be enforceable by any court.
  3. The principles laid down in this part are to influence the making of laws by the State.

Select the correct answer using the code given below:

(a) 1 only

(b) 2 only

(c) 1 and 3 only

(d) 2 and 3 only

(UPSC Prelims 2020)

Answer: (d)

Government of India Act of 1858

After the revolt of 1857 the British government took the control of administration in their own hand, it led to end of company rule.

  • It abolished the board of directors and board of control to manage the political and economic affairs of the company.
  • The power was vested in the British crown now.
  • It changed the designation of the Governor-General of India to that of Viceroy of India.
  • He (viceroy) was the direct representative of the British Crown in India.
  • Lord Canning thus became the first Viceroy of India.
  • It created a new office, Secretary of State for India, vested with complete authority and control over Indian administration.
  • The secretary of state was a member of the British cabinet and was responsible ultimately to the British Parliament.

The act was known as the Act for the Good Government of India.

The Act of 1858 was, however, largely confined to the improvement of the administrative machinery by which the Indian Government was to be supervised and controlled in England. It did not alter in any substantial way the system of government that prevailed in India.

After the great revolt of 1857, the British Government felt the necessity of seeking the cooperation of the Indians in the administration of their country. In pursuance of this policy of association, three acts were enacted by the British Parliament in 1861, 1892 and 1909. The Indian Councils Act of 1861 is an important landmark in the constitutional and political history of India.

Indian Councils Act of 1861

It made a beginning of representative institutions by associating Indians with the law-making process. It thus provided that the viceroy should nominate some Indians as non-official members of his expanded council.

In 1862, Lord Canning, the then viceroy, nominated three Indians to his legislative council—the Raja of Benaras, the Maharaja of Patiala and Sir Dinkar Rao.

It initiated the process of decentralization by restoring the legislative powers to the Bombay and Madras Presidencies. It thus reversed the centralizing tendency that started from the Regulating Act of 1773.

It also provided for the establishment of new legislative councils for Bengal, North-Western Frontier Province (NWFP) and Punjab, which were established in 1862, 1866 and 1897 respectively.

It empowered the Viceroy to make rules and orders for the more convenient transaction of business in the council. It also gave recognition to the ‘portfolio’ system, introduced by Lord Canning in 1859. Under this, a member of the Viceroy’s council was made in-charge of one or more departments of the government and was authorised to issue final orders on behalf of the council on matters of his department(s).

It empowered the Viceroy to issue ordinances, without the concurrence of the legislative council, during an emergency. The life of such an ordinance was six months.

National Commission of Scheduled Caste

The National Commission for Scheduled Castes (SCs) is a constitutional body in the sense that it is directly established by Article 338 of the Constitution.

It provides safeguards against the exploitation of Scheduled Castes and
Anglo Indian communities.

It consists of a chairperson, a vice-chairperson and three other members. They are appointed by the President by warrant under his hand and seal. Their conditions of service and tenure of office are also determined by the President.

The Commission, while investigating any matter or inquiring into any complaint, has all the powers of a civil court.

Report of the commission: the commission presents an annual report to the president. It can also submit a report as and when it thinks necessary.

The President places all such reports before the Parliament, along with a memorandum explaining the action taken on the recommendations made by the Commission.

The memorandum should also contain the reasons for the non-acceptance of any of such recommendations.

The President also forwards any report of the Commission pertaining to a state government to the state governor. The governor places it before the state legislature, along with a memorandum explaining the action taken on the recommendations of the Commission. The memorandum should also contain the reasons for the non-acceptance of any of such recommendations.

National Commission for Scheduled Tribes

Like the National Commission for Schedules Castes (SCs), the National Commission for Scheduled Tribes (STs) is also a constitutional body in the sense that it is directly established by Article 338-A of the Constitution.

The National Commission for SCs and STs came into being consequent upon passing of the 65th Constitutional Amendment Act of 1990.

REPORT OF THE COMMISSION: The Commission presents an annual report to the President. It can also submit a report as and when it thinks necessary.

The President places all such reports before the Parliament, along with a memorandum explaining the action taken on the recommendations made by the Commission. The memorandum should also contain the reasons for the non-acceptance of any of such recommendations.

The President also forwards any report of the Commission pertaining to a state government to the state governor. The governor places it before the state legislature, along with a memorandum explaining the action taken on the recommendations of the Commission. The memorandum should also contain the reasons for the non-acceptance of any of such recommendations.

Central Vigilance Commissioner

It was set up by the Government of India in February, 1964 on the recommendations of the Committee on Prevention of Corruption, headed by Shri K. Santhanam Committee, to advise and guide Central Government agencies in the field of vigilance.

  • It was established in 1964 by the executive resolution of the central
    government. Thus, originally it was neither a constitutional body and nor a statutory body.
  • In 2003, Parliament gives it a statutory status by enacting Central Vigilance Commission (CVC) Act, 2003.

The appointment is done by the president of Indian on the recommendation of body consisting of Prime Minister as the chairman, Minister of home affairs, LOP in Loksabha. It is a 3-member committee.

The vigilance commissioner can be removed from the office by the president after report on the matter from Supreme Court.

Integrity Index: The CVC has decided to go in for development of the Integrity Index-based on bench-marking of internal processes and controls within an organisation as well as management of relationships and expectations of outside stakeholders.

CVC has supervisory powers over CBI. However, CVC does not have the power to call for any file from CBI or to direct CBI to investigate any case in a particular manner.

Important Links

Governor (CH: 26)

Articles 153 to 167 in Part VI of the Constitution deal with the state executive, the state executive consists of the governor, the chief minister, the council of ministers and the advocate general of the state.

The governor is the chief executive head of the state. But, like the president, he is a nominal executive head (constitutional head). The governor also acts as an agent of the central government.

Usually, there is a governor for each state, but the 7th Constitutional Amendment Act of 1956 facilitated the appointment of the same person as a governor for two or more states.

Note: Salary of governors is revised by parliament.

APPOINTMENT OF GOVERNOR

The governor is neither directly elected by the people nor indirectly elected by a specially constituted electoral college as is the case with the president. He is appointed by the president by warrant under his hand and seal.

In a way, he is a nominee of the Central government. But, as held by the Supreme Court in 1979, the office of governor of a state is not an employment under the Central government.

It is an independent constitutional office and is not under the control of or subordinate to the Central government.

The Constitution lays down only two qualifications for the appointment of a person as a governor. These are:

  1. He should be a citizen of India.
  2. He should have completed the age of 35 years.

Additionally, two conventions have also developed in this regard over the years.

  • First, he should be an outsider, that is, he should not belong to the state where he is appointed, so that he is free from the local politics.
  • Second, while appointing the governor, the president is required to consult the chief minister of the state concerned, so that the smooth functioning of the constitutional machinery in the state is ensured.

However, both the conventions have been violated in some of the cases.

His emoluments and allowances cannot be diminished during his term of office. 

Like the President, the governor is also entitled to a number of privileges and immunities. He enjoys personal immunity from legal liability for his official acts. During his term of office, he is immune from any criminal proceedings, even in respect of his personal acts.

He cannot be arrested or imprisoned. However, after giving two months’ notice, civil proceedings can be instituted against him during his term of office in respect of his personal acts.

Oath of Governor

Before entering upon his office, the governor has to make and subscribe to an oath or affirmation.

The oath of office to the governor is administered by the chief justice of the concerned state high court and in his absence, the senior-most judge of that court available.

Every person discharging the functions of the governor also undertakes the similar oath or affirmation.

TERM OF GOVERNOR’S OFFICE

A governor holds office for a term of five years from the date on which he enters upon his office. However, this term of five years is subject to the pleasure of the President. Further, he can resign at any time by addressing a resignation letter to the President.

The Supreme Court held that the pleasure of the President is not justifiable. The governor has no security of tenure and no fixed term of office. He may be removed by the President at any time.

POWERS AND FUNCTIONS OF GOVERNOR

A governor possesses powers more or less analogous to the President of India. However, he has no diplomatic, military or emergency powers like the president.

The powers and functions of the governor can be studied under the following heads:

  1. Executive powers.
  2. Legislative powers.
  3. Financial powers.
  4. Judicial powers.

Executive powers

  • He appoints the state election commissioner and determines his conditions of service and tenure of office. However, the state election commissioner can be removed only in like manner and on the like grounds as a judge of a high court.
  • He appoints the chairman and members of the state public service commission. However, they can be removed only by the president and not by a governor.
  • He can require the chief minister to submit for the consideration of the council of ministers any matter on which a decision has been taken by a minister but which has not been considered by the council.
  • He can recommend the imposition of constitutional emergency in a state to the president. During the period of President’s rule in a state, the governor enjoys extensive executive powers as an agent of the President.
  • He acts as the chancellor of universities in the state. He also appoints the vice-chancellors of universities in the state.

Legislative Powers

A governor is an integral part of the state legislature. In that capacity, he has the following legislative powers and functions:

  1. He can summon or prorogue the state legislature and dissolve the state legislative assembly.
  2. He can address the state legislature at the commencement of the first session after each general election and the first session of each year.
  3. He can send messages to the house or houses of the state legislature, with respect to a bill pending in the legislature or otherwise.
  4. He can appoint any member of the State legislative assembly to preside over its proceedings when the offices of both the Speaker and the Deputy Speaker fall vacant.
  5. Similarly, he can appoint any member of the state legislature council to preside over its proceedings when the offices of both Chairman and Deputy Chairman fall vacant.
  6. He nominates one-sixth of the members of the state legislative council from amongst persons having special knowledge or practical experience in literature, science, art, cooperative movement and social service.
  7. He can nominate one member to the state legislature assembly from the Anglo-Indian Community.
  8. He decides on the question of disqualification of members of the state legislature in consultation with the Election Commission.

When a bill is sent to the governor after it is passed by state legislature, he can:

(a) Give his assent to the bill, or

(b) Withhold his assent to the bill, or

(c) Return the bill (if it is not a money bill) for reconsideration of the state legislature.

However, if the bill is passed again by the state legislature with or without amendments, the governor has to give his assent to the bill, or

(d) Reserve the bill for the consideration of the president.

In one case such reservation is obligatory, that is, where the bill passed by the state legislature endangers the position of the state high court. In addition, the governor can also reserve the bill if it is of the following nature:

(i) Ultra-vires, that is, against the provisions of the Constitution.

(ii) Opposed to the Directive Principles of State Policy.

(iii) Against the larger interest of the country.

(iv) Of grave national importance.

(v) Dealing with compulsory acquisition of property under Article 31A of the Constitution.

Ordinance

He can promulgate ordinances when the state legislature is not in session. These ordinances must be approved by the state legislature within six weeks from its reassembly. He can also withdraw an ordinance anytime. This is the most important legislative power of the governor.

He lays the reports of the State Finance Commission, the State Public Service Commission and the Comptroller and Auditor-General relating to the accounts of the state, before the state legislature.

Financial Powers

The financial powers and functions of the governor are:

  1. He sees that the Annual Financial Statement (state budget) is laid before the state legislature.
  2. Money bills can be introduced in the state legislature only with his prior recommendation.
  3. No demand for a grant can be made except on his recommendation.
  4. He can make advances out of the Contingency Fund of the state to meet any unforeseen expenditure.
  5. He constitutes a finance commission after every five years to review the financial position of the Panchayats and the municipalities.

Judicial Powers

The judicial powers and functions of the governor are:

  1. He can grant pardons, reprives, respites and remissions of punishment or suspend, remit and commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the state extends.
  2. He is consulted by the president while appointing the judges of the concerned state high court.
  3. He makes appointments, postings and promotions of the district judges in consultation with the state high court.
  4. He also appoints persons to the judicial service of the state (other than district judges) in consultation with the state high court and the State Public Service Commission.

CONSTITUTIONAL POSITION OF GOVERNOR

In estimating the constitutional position of the governor, particular reference has to be made to the provisions of Articles 154, 163 and 164. These are:

(a) The executive power of the state shall be vested in the governor and shall be exercised by him either directly or through officer’s subordinate to him in accordance with this Constitution (Article 154).

(b) There shall be a council of ministers with the chief minister as the head to aid and advice the governor in the exercise of his functions, except in so far as he is required to exercise his functions in his discretion (Article 163).

(c) The council of ministers shall be collectively responsible to the legislative assembly of the state (Article 164).

This provision is the foundation of the parliamentary system of government in the state.

From the above, it is clear that constitutional position of the governor differs from that of the president in the following two respects:

  1. While the Constitution envisages the possibility of the governor acting at times in his discretion, no such possibility has been envisaged for the President.
  2. after the 42nd Constitutional Amendment (1976), ministerial advice has been made binding on the President, but no such provision has been made with respect to the governor.

The Constitution makes it clear that if any question arises whether a matter falls within the governor’s discretion or not, the decision of the governor is final and the validity of anything done by him cannot be called in question on the ground that he ought or ought not to have acted in his discretion.

The governor has constitutional discretion in the following cases:

  1. Reservation of a bill for the consideration of the President.
  2. Recommendation for the imposition of the President’s Rule in the state.
  3. While exercising his functions as the administrator of an adjoining union territory (in case of additional charge).
  4. Determining the amount payable by the Government of Assam, Meghalaya, Tripura and Mizoram to an autonomous Tribal District Council as royalty accruing from licenses for mineral exploration.
  5. Seeking information from the chief minister with regard to the administrative and legislative matters of the state.

Uniform Civil Code

Uniform Civil Code is a common law to govern the citizen of India in respect of marriage, divorce, adoption among others.  Currently personal law is applicable for individual religion in respect of handling these issues.  The basic motive behind the proposed uniform civil code is to protect the women’s right.

Uniform civil code is the proposal to replace the personal laws based on the scriptures and customs of each major religious community in India with a common set governing every citizen.

Article 44: As per article 44 of the Indian Constitution, the state shall endeavor to adopt a uniform civil code throughout the territory of India. This is a part of the directive principle of state policy.

Shah Bano case in 1985: Shah Bano case was a controversial maintenance lawsuit in India. Shah Bano, a 62-year-old Muslim mother of five from Indore, Madhya Pradesh, was divorced by her husband in 1978. She filed a criminal suit in the Supreme Court of India, in which she won the right to alimony (maintenance) from her husband.  However, she was subsequently denied the alimony when the Indian Parliament reversed the judgment under pressure from Islamic orthodoxy.

The Muslim Personal board has declared that the Supreme Court of Indian is not empowered to legislate on the matter of triple Talaq as this is not a part of the fundamental right.

Important Judgements

Golaknath case (1967): The Supreme Court ruled that the Parliament cannot take away any of the Fundamental Rights.

Kesavananda Bharati case (1973): The Supreme Court declared the law can be unconstitutional and invalid on the ground that judicial review is a basic Structure of the Constitution and hence, cannot be taken away.

Kesavananda Bharati case is a landmark decision of the Supreme Court of India that outlined the basic structure doctrine of the Indian Constitution.

The doctrine forms the basis of power of the Indian judiciary to review and override amendments to the Constitution of India enacted by the Indian parliament.

The court held that while the Parliament has ‘wide’ powers, it did not have the power to destroy the basic elements or fundamental features of the constitution.

Minerva Mills Case (1980): In the Minerva Mills case, the Supreme Court provided key clarifications on the interpretation of the basic structure doctrine. The court unanimously ruled that the power of the Parliament of India to amend the constitution is limited by the constitution. 

Hence the parliament cannot exercise this limited power to grant itself an unlimited power.

In addition, a majority of the court also held that the parliament’s power to amend is not a power to destroy. Hence the parliament cannot emasculate the fundamental rights of individuals, including the right to liberty and equality.

Landmark judgment of Prakash Singh v. Union of India (2006): The Supreme Court has stated that the landmark judgment of Prakash Singh v. Union of India (2006), which dealt with police reforms.

Prakash Singh, who served as DGP of UP Police filed a PIL in the Supreme Court post retirement, in 1996, seeking police reforms.

Recommendations of Supreme court in Prakash Singh judgment:

  • Fixing the tenure and selection of the DGP to avoid situations where officers about to retire in a few months are given the post.
  • In order to ensure no political interference, a minimum tenure was sought for the Inspector General of Police so that they are not transferred mid-term by politicians.
  • Postings of officers should be done by Police Establishment Boards (PEB) comprising police officers and senior bureaucrats to insulate powers of postings and transfers from political leaders.
  • Set up State Police Complaints Authority (SPCA) to give a platform where common people aggrieved by police action could approach.

Maneka Gandhi v. Union of India: It was a landmark decision of the Supreme Court of India in which the Court significantly expanded the interpretation of Article 21 of the Constitution. The court ordered to treat the personal liberty under article 21 in liberal terms and not in narrow terms.

Berubari Union case (1960)

In the Berubari Union case (1960), Supreme Court recognized the significance of the Preamble. Supreme Court mentioned that assistance from Preamble could be taken in the interpretation of articles that are ambiguous or capable of more than one meaning.

It also mentioned that Preamble shows general purposes behind several provisions in the constitution and is thus a key to the minds of the makers of the constitution.

However, Supreme Court specifically mentioned that the Preamble is not a part of the constitution.

LIC of India Case (1995)

In the LIC of India Case (1995) also, Supreme Court again held that the Preamble is an integral part of the constitution.