CONSTITUTION OF INDIA

Characteristics of a Federal Constitution

(1)

Dual Government

(2)

Division of Powers

(3)

Written Constitution

(4)

Supreme Judiciary

(5)

Supremacy of Constitution

(6)

Dual Citizenship

There will be 2 independent

Governments. One at each of the States and the Other
at the Centre. Both deriving powers from a common
source called Constitution. Both are independent in
their own areas.
The Legislative and Executive
Powers are divided between the Union and the States.
The distribution of such Powers is reflected in the
Constitution. The maters of National importance which
required a Uniform Policy in the interest of the Unit, the
Authority is given to the Union. The matters of local
concerns remain with the States.
The foundation of a Federal
State is a Contract between the Union and the States. It
is NOT possible to maintain Supremacy of Constitution
unless the terms of such contract are reduced in
writing. Therefore, Written Constitution is a must part
of Federation Constitution.
There should be an Authority
to interpret the provision of the Constitution and also
arbitrate the disputes between the Union and the
States.
Such Authority should be independent and
impartial. This role has been given to Supreme Court
which is the highest Authority to interpret and enforce
Constitution and also to arbitrate the disputes between
the Units and the Federation.
A Federal State
derives its existence from the Constitution. Therefore,
every power whether it is Executive or Legislative or
Judicial whether it belong to the Union or the States,
should be respected and that is why Constitution is
treated as Supreme Law of Land in a Federation.
A Federal Constitution always
envisages Dual Citizenship. One for the State and the

other for the Union. India is an exception. Except

Jammu & Kashmir, NO other State enjoys Dual
Citizenship.
Contd.2
-: 2 :-

(7)

Rigidity of Constitution

(8)

Single Judiciary

A Written Constitution
should be normally rigid and without the concurrence of
the Units, the Constitution should NOT be meddled with.
The Power to amend the Constitution is equally given to
the States and the Union.
Since the Judiciary has the
responsibility to interpret and enforce Constitution on
all the Organs of the State, the judicial Powers have
NOT been divided between the Union and the States in a
Federal Constitution.
In other words, judiciary is
common for both Union and States.

Salient Features of Indian Constitution

(1) Lengthiest and most detailed Constitution originally
comprising of 395 Articles, 8 Schedules and 20 Parts
(now it has 444 Articles, 12 Schedules). US has only 7,
Australia has 128 and Canada has 147 Articles. The
bulkiness of the Constitution is due to the inclusion of
even administrative provisions like, Official Language,
Public Services, Administered Areas, Union Territories,
etc. This is primarily to prevent abuse of authority by
any Organ of the State. Nothing has been left to the
initiative of Administrators. In the words of Dr. Bhimrao
Ambedkar This is because Democracy in India is only a
top-dressing in Indian soil which is essentially
undemocratic. It is, therefore, wiser NOT to trust the
Legislators to prescribe the form of administration.
(2) Indian Constitution is described as Basket of
Borrowings with most provisions having been taken
from Government of India Act, 1935.
British
Constitution contributed Cabinet form of Government,
Civil Services, Office of Speaker, CAG, Parliamentary

form, Rule of Law. US Constitution gave Fundamental

Rights,
Judicial
Review,
Independent
Judiciary,
Preamble, Role of Vice-President as Chairman of Rajya
Sabha.
Canada contributed Federation with Strong
Centre, Residuary Powers to the Union.
Irish
contributed manner of Election of President, Nomination
of Member in Legislative. Germany gave Emergency
Powers and Suspension of Fundamental Rights during
Emergency.
Fundamental Duties given by Japan.
Procedure of Amendment of Constitution taken from
South Africa.

(3) Our Constitution proposes to establish a Sovereign,

Socialistic, Secular and Democratic Republic.
Contd..3
-: 3 :(4) Parliamentary form of Government with Union Council of
Ministers headed by Prime Minister forming part of
Legislature. President is only a figure head.
(5) Our Constitution is partly rigid and partly flexible. The
basic structures of the Constitution can NOT be
amended while some features of Federal Structures can
be amended through special majority of both the
Houses of Parliament and ratification by Half of the
States. It is flexible because in 60 years, it has been
amended more than 100 times.
(6) It provides Fundamental
Article-13 & Article-32.

Rights

duly

protected

by

(7) It has Directive Principles of State Policy aiming to

establish a Welfare State with Socio and Economic
Justice.
(8) Our Constitution is Federal in structure and Unitary in
Spirit. It is Federal because of Written Constitution,
Division of Powers, Dual Government, Supremacy of
Judiciary, Independent Judiciary and Primacy of
Constitution. It is Unitary in spirit because of unequal
representation in Rajya Sabha, Appointment of
Governors, who function as Agents of Central

Government.
Emergency provisions
States in indestructible Union.

Destructible

(9) Universal Adult Suffrage (Franchise) powers to all men

and women of 18 years and above irrespective of
Religion, Race, Caste, Sex and Property.
(10) We have a unified Supreme Judiciary with Supreme
Court at the top as Interpreter of the Constitution and
Guarantor of Fundamental Rights and Minority Rights
vested with the Powers of Judicial Review.
(11) Though it is a Federation, it provides for only a Single
Citizenship.

Unique Features which NO other Constitution in

the World has
(1) Preventive detention even during normal times (Article-22).
(2) Ordinance making Powers of President President
usurping (encroaching) the Powers of Legislature
(Article-123).
Contd..4
-: 4 :(3) Special Leave Petition (Article-136).
(4) Advisory Jurisdiction of Supreme Court (Article-143).
(5) Fundamental
Duties
(Article-151-A).
Though
Fundamental Duties - Right to Work is a Fundamental
Right in Japan whereas it is only a Directive Principle in
India.
(6) Anti-Defection Law
trusting themselves.

(Schedule-X)

Legislators

dis-

Preamble of the Constitution

Preamble has been described as Political Horoscope,
Key to the Minds of Framers of Constitution, Soul of
Constitution and it walks before Constitution.

Preamble indicates what he had thought and dreamt

before Freedom Struggle and during Freedom Struggle.
Preamble indicates 3 Principles :(1)
It indicates the People of India is the ultimate
authority and source of Constitution (We, the People of
India do hereby adopt, enact and give unto ourselves
this Constitution).
(2)
What Rights and Fundamental Duties which People
want to secure to all Citizens.
(3)
The type of Government and Polity which was to be
established.

(4)

We, the People of India indicates that our

Constitution is NOT the gift of British as Canadian
Constitution in 1867 or Australian Constitution in 1900
nor our Constitution was imposed onus like that of
Japanese Constitution of 1946.
In other words, the
Constitution of India was made for the People of the

People and by the People.

The Preamble does NOT have any Article number as
such it is a part of the Constitution. Supreme Court, in
Perubari Case declared that Preamble is NOT the part of
Constitution it can NOT be regarded as a source of
substantive Powers because such Powers have been in the
body of the Construction. The purpose of Constitution is
that it should be resorted to when there is any ambiguity in
the Law. This decision was in 1960.
Contd5
-: 5 :In 1973, in Kesavananda Bharati case (Fundamental
Rights case), the Supreme Court overruled its earlier
decision and held that Preamble is part of Constitution and
the Constitution should be read and interpreted only with
reference to the Preamble.

Can Preamble be amended especially when it has

no Article No.?

This has been examined in the Fundamental Rights case

in 1973. The argument was that the Preamble limits the
scope of Article-368 and as such it isi beyond Amendment.
However, Supreme Court declared that :
(1) Preamble is part of the Constitution.
(2) It can be amended subject to the condition that it does
NOT affect the basic structure of the Constitution.

Whether Preamble was ever amended?

Through 42nd Amendment Act, 1976, three Terms were
included in the Preamble :
(1)
Secular
Integrity

(2)

Socialistic

(3)

These Terms are NOY new because they had already been
included in spirit in various provisions of the Constitution.

Secular means that the State does not recognize any

religion as State Religion. It treats all religions equally. In
other words, the State is neither Pro-Religious nor AntiReligious nor Irreligious. This concept had already been
included in Articles 25,26,27 & 28.

Socialistic does NOT mean abolition of private property

nor does it mean ownership by the State. It only means to
minimize the inequality between the haves and have nots.
This directive had already been included in Article 39-B & C.

Integrity Article-1 says that India i.e. Bharat is a Union of

States. Though it is a Federation, the term Federation had
NOT been included anywhere in the Constitution. It implies
that the States have NO rights to secede (break away).
Contd..6
-: 6 :-

Union and its Territory

Article-1 says that India i.e Bharat is Union of States.
The term Federation is NOT found anywhere in the

Constitution. The term Union was specifically suggested by

Dr. Ambedkar which implies 2 things :(1)

Indian Union is
NOT the result of any Agreement of Independent &
Sovereign State.
(2)
The States do NOT
have the right to secede (break away).
Americans had to wage a Civil War to establish that the
Sates have NO right to break and that their Federation is
indestructible. It is always better to make it clear this
position at the outset rather than leaving this to speculation
and posterity.
The States and Territories thereof are specified in the 1 st
Schedule. Territory of India consists of :(1)

Territories of the

States which share the Powers with the Union.

(2)
Union Territories
which are administered directly by the Union.
(3)
Such

other

Territories as may be acquired.

At present, we have
States
Union
Territories

28
-07 (1) Delhi (2) Andaman & Nicobar Islands (3)
Lakshadweep
(4) Dadra & Nagar
Haveli (5) Pondicherry (6) Daman & Diu (7)
Chandigarh

Whether the Country can acquire any Territory

The Powers to acquire a new Territory is an attribute of
sovereign functions and for this NO legislation is required.
The territory can be acquired through Occupation,
Subjugation, Conquest, Lease or Gift.
These acquired
territories will be subsequently converted into Union
Territory and then added to the States.

Contd..7
-: 7 :-

Administration & Establishment of a New State

The Constitution gives the powers to the Parliament to
admit a new State or to establish a new State on such terms
and conditions as deems fit.
Administration of a State means admitting a State which
already exists. Establishment of a State means formation
and administration of a new State which has NOT in
existence.
There is NO provision in the Constitution which gives
right to the new State after admission to claim any equality
with other State because the administration and formation is
on such terms and conditions, as prescribed by the
Parliament.
Article-3 gives the Procedure for forming or establishing
a State. The State can be formed by :(1)
(2)
(3)
(4)

Separation of a territory from any State.

By Uniting two or more States.
By Uniting any part of the State.
By Uniting any territory to any part of any State.

Parliament has also the powers to increase or decrease

the area and also to change the name of the State or Union
Territory.
Parliament is competent to do the aforesaid changes
without the consent of the affected State. This can be done
by passing a Law by parliament by simple majority. Two
conditions are to be satisfied :
(1) No Bill for formation of a new State or altering the
boundaries or changing the name should be introduced
in either House of Parliament, except on the
recommendation of the President.
(2) If the bill affects the area or boundary or name of any
State, President, before recommending, should refer to

the Bill to the concerned State Legislature for its views

within such stipulated period as specified by President.
Contd8
-: 8 :If the State Legislature does NOT express its views
within the stipulated time or if the State has expressed
opposing views even then, the Bill can be recommended,
introduced and passed in Parliament.
In other words,
President or Parliament is NOT bound by the views of the
State and the Bill can be passed. These amendments are
NOT treated as amendments for the purpose of
Article368 eventhough it amends Schedule-1.
Therefore, the very existence of a State, its name, its
territory, its boundary, etc. totally depends on the sweet will
of the Union.
That is why, we say that India is an
indestructible Union with destructible States.

Cession of Territory
Article-3 empowers the Parliament to decrease the area
of any State. The decrease may happen in 2 ways :(1) Where a part of a territory of a State/Union Territory is
taken out and added to another State.
(2) Where a part of a territory of any State/Union Territory
is taken out and given to a Foreign Country.

Whether Part (2) above is possible?

This came up before Supreme Court in a reference made
by President under Article-143. India and Pakistan entered
into an Agreement in 1958 to resolve border dispute. The
Agreement was for Transfer of 50% of Perubari area
(measuring an area of 9 Sq. Miles) to Pakistan in exchange of
Kuchbehar area.
When the Agreement was to be
implemented, there was a strong agitation in West Bengal.
At this stage, President referred the matter to Supreme
Court with 2 questions :-

(1)Whether

any

legislative

action

is

necessary

to

implement Perubari Agreement

(2)If so, whether a Law of Parliament under Article-3 is
enough or an amend-ment under Article-368 is required.
Contd..9
-: 9 :Supreme Court held that the Article-3 deals with only
the internal adjustments of the territories of the constituent
States because the area diminished in one State continuous
to be the area under the Union.
Article-3 does NOT, therefore, provide for ceding the
territory to a Foreign State. Therefore, the Agreement can
be implemented only after amending the Constitution
through Article-368. Supreme Court also held that to cede
territory is an attribute of Sovereign Power of the State.

Fundamental Rights (Article-35)

Article-12 defines State.
The term includes State
Executives, State Legislatures, Union Executives and Union
Legislature including those of local or any other Authorities
functioning under them. The term State includes Judiciary
also.
Article-13 also called Judicial Review taken from US
Constitution. The Powers of the Supreme Court and High
Courts facilitates to pronounce upon the Constitutionality of
Legislature and Executive acts to protect the Constitution.
High Court exercises these Powers under Article-226 and the
Supreme Court under Article-32.
Article-13 provides that the State shall NOT make any
Law which takes away or abridges any of the rights
conferred in Part-3 of the Constitution and if any Law is
made abridging or taking away any of such rights, that Law
is void to the extent of inconsistency.
Supreme Court held that Judicial Review is a basic
structure which means that the Judicial Review can NOT be

taken away even through amendment of the Constitution.

Article-13 also defines Law which includes Ordinance, Rule,
Order, By Law, Regulation, Notification, Custom or Usage.

24th Amendment Act added the following :Nothing in Article-13 shall apply to any amendment
made through Article-368. This is to overcome the decision
of Supreme Court in Golak Nath case in which Supreme Court
declared that Parliament has NO Powers to amend any part
of the Constitution.
Contd..10
-: 10 :-

Four Doctrines
(1)
Over-ruling

Prospective

This Doctrine was propounded by Supreme Court in the

famous Golak Nath case. While Supreme Court has nullified
the Powers of Parliament to amend the Constitution in that
case in 1967, through Prospective Over-ruling, Supreme
Court protected all past amendments declaring that the

Parliament
can
NOT
henceforth
amend
the
Constitution whatever amendments have been carried out,
though would remain valid.

(2) Doctrine of Severability

This doctrine means if an offending Provision can be
separated from that which is constitutional, then only that
Part which is offending is to be declared as void and NOT the
entire Law. In other words, when a Part of the Law is
declared unconstitutional by the Court, then a question
arises whether the whole Law is invalid or only that
Provision which is unconstitutional is invalid. Supreme Court
decided only the offending Provision is invalid because
Article-13 clearly says
to the extent of

repugnancy.

(3) Doctrine of Waiver

A Citizen can NOT waive his Fundamental Rights. It is

NOT open to an accused to give up Constitutional Rights and
get convicted.
These rights have been put in the
Constitution NOT only for the benefit of the individual but
also in the interest but also in the interest of the Society. It
is an obligation imposed on the State by the Constitution.
No person can relieve the State of this obligation. In other
words, it is the duty of the Court to protect the right of the
Citizen against themselves.
(4)

Doctrine of Eclipse

This Doctrine means that a Law which violates a

Fundamental Right is NOT totally void but it becomes
unenforceable i.e. it remains dormant.
It is only overshadowed by Fundamental Right and they remain for all past
transactions.

Contd..11
-: 11 :-

Fundamental Rights
Legal Right
A Legal Right is an interest protected by an ordinary
Law and enforced in the Court of Law. While an ordinary
Legal Right is protected and enforced by an ordinary Law. A
Constitutional Right is a right guaranteed in the Constitution
and which can NOT be taken away without amending the
Constitution.
Fundamental Right is a right included in the Constitution
in Part-3 duly protected by Article-13 and Article-32 of the
Constitution.
In other words, a right available in
Constitution but NOT included in Parat-3 is called
Constitutional Right.
Therefore, all Constitutional Rights are Legal Rights but
all the Legal Rights are NOT Constitutional Rights. Similarly,
all Fundamental Rights are Constitutional Rights but all the
Constitutional Rights are NOT Fundamental Rights.

Salient features of Fundamental Rights

1) Fundamental Rights are kept at a high pedestal.
2) These
rights
are
protected
from
abridgement
(curtailment) by Article-13.
3) Adequate machinery has been provided to protect
Fundamental Rights through Supreme Court and High
Court (Article 32 & 226).
4) Article-32 itself is a Fundamental Right.
can NOT be denied to any citizen.

Therefore, it

5) Fundamental Rights are not absolute but subject to

certain restrictions. Some have been prescribed in the
Constitution and some can be prescribed by Legislators.
6) Fundamental
Rights
can
be
suspended
during
Emergency under Article-352 & Article-359. Article-19
stands automatically suspended.
And in respect of
others, except Article-20 & 21, President is to notify the
suspension.
7) For the first time in the constitutional history, 44 th
Amendment Act, 1978 deleted a Fundamental Right
(viz.) Right to Property Article-31.
Contd..12
-: 12 :Above all, Fundamental Rights are not free for
exception.
Under Article-31A, added through First
Amendment Act, 1951, if any law is made to implement
agrarian reforms, that law can NOT be questioned even if it
violates Article-14, 19 & 31.
Similarly under Article-31-B,
added through First Amendment Act, 1951, if any law is
made for implementing land reforms and included in
Schedule 9, that law gets judicial immunity from Article-14,
19 & 31. Similarly, if any Law is made to implement any
Socialistic Principle given in Article-39B & 39C, that law
cannot be questioned, even if it violates Article-14, 19 & 31.
This was added through 25th Amendment Act, 1971.
In addition, Fundamental Duties is another exception to
Fundamental Rights.
If there is a clash between

Fundamental Duty and Fundamental Right, the former will

prevail over the latter.

There are 7 Fundamental Rights

1) Right to Equality

Article-14

to

18;
2) Right to Freedom

Article-19

to

22;
3) Right against exploitation
4) Right to Freedom of Religion

:
:

Article-23 & 24;

Article-25 to

28;
5) Cultural and Educational Rights
6) Right to Property

:
:

Article-29 & 30;

Article
-31

(since deleted)
7) Right to Constitutional Remedies

Article-32

to

35.

Availability of Fundamental Rights

Some Fundamental Rights are available only to the
Citizens and some others are to both the Citizens & NonCitizens.

What are the special privileges and rights available

only to the citizens?
1) Article-15
Prohibition of discrimination on the
grounds of Religion, Race, Caste, Sex or Place of Birth.
(RRCSP)
2) Article-16
The right of Equality of opportunity in the
matters of Public Appointment and Public Employment
under the State.
Contd.13
-: 13 :3) Article-19 - Seven Freedoms

Freedom of speech and expression, Freedom of

Assembly, Freedom to form Union or Association,
Freedom to move throughout the Territory of India,
Freedom to reside and settle in any part of India,
Freedom to acquire, hold and dispose of property
(deleted through 44th Amendment Act 1978) and
Freedom to practice any Profession, Trade , Business or
Occupation.
4) Article-29 & 30 - Cultural and educational rights.
In addition, there are certain offices under the
Constitution, which can be occupied only by the citizens
(viz.) President, Vice President, Governor etc.
In addition, right to vote for elections to Lok Sabha and
Assembly, is available only to the citizens and they can
alone become the Members of Union and state
Legislatures.
Article-14 to 18 consists Right to Equality. Article-14
prohibits discrimination in a general way.
Article-15
prohibits discrimination against any Citizen on the grounds
of Religion, Race, Caste, Sex or Place of birth. Article-16
generates Public Appointment and Public Employment under
the State. Article-17 abolishes Untouchability.
Article-18
abolishes Titles.
Article-14 says that the State shall NOT deny to any
person equality before Law or equal protection of Law.
Available to citizens and Non-Citizens, negative in character,
injunction (ban) against the State.
This right has 2
components:
1) Equality before Law;
2) Equal protection of Law.
Equality before Law is of English origin and equal protection
of Law is of American.

Equal before Law :

This means absence of discrimination. Right from the
Prime Minister to Peon, all are equal in the eyes of law,
based on rule of law. And the rule of law is a man can be
punished only for a breach of law and not for anything else
and equality before law is no one is above law. Constitution
is supreme law of land. In short, King is not the law and the
law is the King. However you are tall, law is taller than you.
Rule of law is better than rule of man.

Now the question is whether there are any exceptions to

this principle of equality before law?
Contd..14
-: 14 :There are certain exceptions, which have been given in the
Constitution itself.
1) President or Governor is not answerable in any Court of
Law for any act done or purported to have done, in
exercise of their Powers (Article 361).
2) No civil proceedings can be instituted against President
or Governor during the term of office until 60 days of
notice in writing is given.
3) No criminal proceedings can be initiated or continued
against President or Governor during the term of office.
4) No process of arrest of President or Governor can be
issued, from any court of law during the term of their
office.
5) Under
International
Law,
Foreign
Sovereigns,
Ambassadors and Diplomats enjoy full immunity from
judicial process.
The above immunity does not apply to impeachment
proceedings against President or suits against Government
of India.
In addition to the above, Article 31A, 31B, 31C and
Fundamental Duties are exceptions to Article 14, as
explained in salient features of Fundamental Rights.

Equal protection of law

This means right of equal treatment in similar
circumstances both with regard to privileges and liabilities
of law. If there is any reasonable basis for classification, the
legislature can make reasonable classification.
In other
words, it is only guarantee of equal treatment under equal
circumstances, permitting differential treatment when the
circumstances differ.

Equal protection of law does not mean that every law

must be general nor does it mean that the same law should
apply for all. It does not also mean that every law should
have universal application because all persons are not by
very nature in the same position. The different needs of
different classes of people require different treatments. In
fact, identical treatments in unequal circumstances will
amount to inequality. Therefore, a reasonable classification
is NOT only permissible (Permissible Classification) (V.Imp.)
but also essential. Nevertheless, the classification should
not be arbitrary.
[Recall Section-303 of IPC, Airhostess case, Pension case
and adultery case]
Contd15
-: 15 :-

Supreme Court recently held that the government can

NOT discriminate among women on account of marriage.
Supreme Court allowed an appeal of Mrs. Savitha and her
Father challenging the Railway Board circular which provided
that the married daughter of the retiring official was eligible
for government accommodation, only if the retiring father
has no son.
Supreme Court held this circular Gender
biased and commented that a son is a son till he marries
and gets his wife; and a daughter is a daughter for life.

Article 15 : Protective discrimination

1) The State shall not discriminate against any citizen on
the ground of Religion, Race, Caste, Sex or Place of
birth.
2) No citizen shall be, on ground of Religion, Race, Caste,
Sex or Place of birth, be subjected to any disability or
restrictions or conditions with regard to shops,
restaurants, hotels, motels, use of wells, bathing
guards, tanks, roads, public resorts etc., which are
maintained wholly or partly out of State funds or
dedicated to general public.

The above 2 provisions have following exceptions :

a) The State can make special provision for protection of

women and children.
b) Similarly, the State can make special provisions for
advancement of socially and educationally backward
classes of citizens or SC & ST (added through First
Amendment Act, 1951 as result of Supreme Court
decision in Chenpakam Durairajan case).
The above exceptional classes of people (viz.) women,
children, socially & educationally backward classes, SCs &
STs require special protection and affirmative action of the
State.
Even though the principle of equality demands
prohibition of discrimination, the discrimination is protected
in the above cases, in social interest. This is, therefore,
called Protective Discrimination.
The women are protected because their physical
structure and maternal functions place them at a
disadvantage in their struggle for their subsistence in the
gender biased society and their physical well-being becomes
the duty of the society.
Contd..16
-: 16 :-

93rd Amendment Act, 2005 amended Article-15 and

added the following
The State can make special provisions for the
advancement of society and educationally backward
classes of citizens, SCs & STs relating to their
admission to educational institutions aided or
unaided by the State, other than minority
institutions referred to in Article-30.

Article 16 has two provisions

1. There shall be an equality of opportunity for all Citizens
in the matter of public employment and public
appointment to any office under the State.
2. No citizen shall on the ground only of Religion, Race,
Caste, Descent (inheritance), Place of Birth, or Resident,

be ineligible or discriminated against in respect of any

employment or office under the State.

The above provisions have following exceptions

(i)

This is an exception to the provision which forbids

discrimination on the grounds of Religion, Race, Caste,
Descent, Place of Birth or Resident. This empowers only
the Parliament to regulate by Law, the extent to which it
is permissible for the State, to depart from the above
provision. Accordingly, Parliament has passed Public
Employment (requirement as to residents) Act 1957. This
Act exempts Himachal Pradesh, Manipur, Tripura &
Andhra Pradesh.

(ii) The 2nd exception is that the State can make the special
provision for appointment of post in favour of any
backward class citizens which are not adequately
represented in services under the State.
(iii) The 3rd exception is that the State can make special
provision for reservation in matters of promotion to any
class of post in services of the States in favour of SC & ST
(not for OBC), which have not
been adequately
represented in services under the States. This was added
through 77th Amendment Act, 1995, to overcome the
Supreme Court decision in Indira Sawhney case.
Contd..17
-: 17 :-

(iv) The 4th exception is: 81 Amendment Act 2000 added

Article 16 (4B), to end 50% ceiling on reservation for SC
& ST and OBC in the backlog vacancies, which could not
be filled up in previous years due to non availability of
eligible candidates; it has been provided that these
vacancies should be considered as a separate class and
should be filled in succeeding years and such vacancies
should not be considered together with the vacancy of
the year in which they are being filled up for the
purpose of ceiling of 50% reservation of the year.

(v)

85th Amendment Act 2001 extended the benefit of

reservation in favour of SCs and STs (not for OBCs) in
matters of promotion with consequential seniority from
April, 1995.

(vi) The 6th exception is that the equality provision will not
prevent the relaxation of qualifying marks in any
examination and also lowering the standards of
evaluation for reservation in matters of promotion for
SCs&
STs.
(Article-335
amended
through
82 nd
Amendment Act, 2000).
In addition to the above, the officers connected to a
religious institution may be reserved for member professing
that particular religion or belonging to that particular
denomination.

Article-17 : Abolition of Untouchability

Article-17 abolishes untouchability and forbids its
practice in any form. If it is practiced, it is an offence and
punishable under Law.
Untouchability has not been defined but the Supreme
Court held the term should be understood as a practice
which had developed in the country historically i.e. a
practice which contemptuously looks down a group of
persons purely based on their birth. The purpose of the
Article is to liberate the Indian Society from the blind,
ritualistic, strict traditional belief.

Article-18 : Abolition of Titles

(i)

Article-18(1) prohibits the States to confer Titles to any

person,
military
and
academic
distinctions
are
exempted;
Contd18
-: 18 :-

(ii) It prohibits Indian Citizens from accepting any Title from

any Foreign State;

(iii) This Article prohibits any foreigner holding office of

profit under the State from accepting any Titles from
any foreign State without Presidents consent;
(iv) It also prohibits a person, both citizen and non citizen
holding any office of profit under the State, from
accepting any present or emoluments or office of any
kind from any foreign State without Presidential
consent.
Article-18 is only a Directory.
There is NO penalty
prescribed for violation of these provisions, though
Parliament can always make a law.
Supreme Court recently held that conferment of Titles of
Bharat Ratna, Padma Vibhushan, Padma Bhushan, Padma Sri
etc. are NOT violation of Article-18. These awards indicate
the States recognition of the good work done by the
Citizens and does NOT violate the principles of equality.

Article-19 : Right to Freedom

Right to Freedom consists of Article-19, 20, 21 and 22,
put together called Magna Carta of Civil Liberties.

Article-19 gives 7 freedoms; Article-20

provides
protection in respect of conviction for offences; Article21 deals with protection of life and personal liberty;
Article-22 is protection against arrest and detention.

Article-19 gives 7 Freedoms

(i)
(ii)
(iii)
(iv)
(v)
(vi)

Freedom of Speech and Expression;

Freedom of Assembly;
Freedom to form Union & Association;
Freedom to move throughout the Territory of India
Freedom to reside and settle in any Part of India,
Freedom to acquire hold and dispose of property
(deleted through 44th Amendment Act, 1978)

(vii) Freedom to practice any profession, trade or business

or occupation.
Contd19
-: 19 :-

Each of these freedoms can be restricted and the

grounds of restriction are given in the Constitution itself.
That is why we say that what Article-19 gives by one hand is
taken by the other hand.
Man is a National being. He desires to do many things.
But in a civilized society, the desires have to be controlled,
reconciled and to be regulated in their exercise by similar
desires of other fellow citizens. There cannot be any right,
which is absolute and injurious to the society.
The restrictions so imposed cannot be arbitrary.
Article-19 is available only to the citizens.

(1) Freedom of Speech and Expression:

This includes Press Freedom also. There is no
separate article for press freedom. This includes not only
the rights to propagate your views but also otherwise. This
helps self attainment, discovery of truth, capacity in decision
making and to strike a balance between social change &
stability.
The Freedom of Speech and Expression includes,
freedom to silence also (in respect of expulsion of three
children from the school in the National anthem case; and
LIC house journal case).
Prasar Bharati was established on the directions of the
Supreme Court, as a result of interpretation of this Article,
so also Right to Information Act 2005, Right to know about
the candidates contesting the elections.
The freedom of speech and expression can be restricted
in the interest of Sovereignty, Integrity, Public Order,
Morality, Contempt of court, Decency, Defamation, Friendly
relations with Foreign States, incitement to offence or
security.
Freedom of Press: The Indian Constitution does not
provide for the freedom of Press separately. It is implicit in
Article 19. The restrictions that limit the freedoms in the
case of individuals apply to the press also.

(2) Freedom of Assembly Freedom of Assembly can be

restricted in the interest of Sovereignty, Integrity, Public
Order (SIPO).
(3) Freedom to form Union and Association can be
restricted in the interest of Sovereignty, Integrity, Public
Order and Morality (SIPOM).
Contd..20
-: 20 :(4) Freedom to move throughout the territory of
India can be restricted in the interest of general
public and Scheduled Tribe. The General Public
includes public order, morality, decency and health.
(5) Freedom to reside and settle in any part of India
can be restricted in the interest of general public and
Scheduled Tribe.
(6) Freedom to acquire hold and disposal of property
has been deleted through 44th Amendment Act 1978. It
has been placed as Article 300A, as Constitutional Right.
(7) Freedom

business or

to practice
occupation

any

profession,

trade,

This can be restricted in the interest of the following

(i) General Public;
(ii) For the sake of professional / technical qualifications;
(iii) To enable the State to carry on any trade or
business
exclusively, to the exclusion of other
citizens.

Article-20 : Protection against ex-post facto Law,

Double Jeopardy, self-incrimination has 3
provisions namely :1)

Protection against ex-post facto Law

No person shall be convicted of any offence except for

violation of a law in force at the time of the commission of

the Act charged as an offence. Similarly, he shall not be

subjected to a penalty greater than that which might have
been inflicted under the law in force at the time of the
commission of the offence. In other words, if an act is not an
offence at the time when it was committed, it cannot be
made as an offence at a later date subsequent to the
commission of offence (i.e.) ex-post facto law is a law which
imposes a penalty retrospectively.
This Act imposes a limitation on the law making powers
of the Legislature.
Normally a Legislature can make retrospective and
prospective law but this clause prohibits retrospective
criminal law.
Contd21
-: 21 :This does not however apply to civil liability or change
of procedure (i.e.) a Law can be imposed retrospectively.
Supreme Court, however, clarified an ex-post facto provision
can be extended, if it is beneficial.

2)

Protection against Double Jeopardy (danger)

a) No person can be prosecuted and punished for the same
offence more than once.
b) In this case, the person must be accused of an offence;
the prosecution should have taken place before a Court.
c) The person should have been punished in the said
proceedings.
d) The offence must be the same, for which he was
prosecuted and punished earlier.

In British and American Constitutions, the protection is

available against second prosecution also. The first
prosecution should have taken place before a Court. In
other words, the proceedings before Customs Authority or
Departmental Authorities or Administrative Authorities
cannot be considered as judicial proceedings.

3) Protection against Self-incrimination

No person accused of any offence shall be compelled to

be a witness against himself. This is based on the principle
of natural justice that every person is innocent until and
unless the otherwise is proved. Therefore, it is for the
prosecution to establish the guilt of the accused and the
accused person need not make any statement against his
will under the spell of compulsion, which may expose him for
prosecution for a crime. The ingredients are :
a) The person should be accused of any offence;
b) Protection is against any compulsion to be a witness
and against himself.
This does not apply to compulsory production of material
objects or specimen handwriting or finger impression or
blood specimens. Article-20 cannot be suspended even
during Emergency.
Contd22

-: 22 :-

Article-21 : Provides
Personal Liberty

protection

of

Life

and

No person shall be deprived of his life or personal

liberty except by a procedure established by Law.
The Act does not refer to due process of law, as in US
Constitution. It only says the procedure established by law
thereby placing the Legislature in a more important
position.
The procedural due process involves:
1)
2)
3)
4)

providing notice;
opportunity to be heard;
impartial tribunal and
orderly procedure.

These are not required in the procedure established by

law.
In A.K. Gopalan Vs Union of India, Supreme Court held
that our Constitution embodies English concept of personal
liberty and not due process.
Therefore, if a competent

legislature has made a law providing that a person may be

deprived of his personal liberty in certain circumstances, in
certain manner, the validity of that law cannot be
questioned.
However, Supreme Court in Menaka Gandhi case in July
1977, overruled its earlier decisions and declared that the
personal liberty covers a variety of right, which are included
in Article-19.
Through various decisions, Supreme Court amplified
(widened) the term personal liberty and included the
following rights:
1) Right to live with human dignity and all that goes along
with it viz.) adequate nutrition, clothing, shelter,
reading, writing, free moving, mingling with fellow
human beings;
2) Right to livelihood because the easiest way to deprive a
person of his life, is to deprive him his means of
livelihood (Bombay Civil Service case);
3) Right to minimum wages (Asiad workers case);
4) Right to subsistence Allowance;
Contd.23
-: 23 :5) Right to privacy (even a woman of easy virtue has right
to privacy domiciliary visits banned);
6) Right against inhuman treatments;
7) Right to Education (Supreme Court in Mohini Jain case
held that Capitation Fee deprives the children of their
education. Based on this, today right to education is a
Fundamental Right);
8) Supreme Court also held, it is the professional obligation
of all doctors, to extend the medical help to the injured
immediately, without waiting for legal formalities;
9) Right against solitary confinement (Shobhraj case);
10)

Right to speedy trial;

11)

Right against the use of third degree methods;

12)
Imprisonment of a poor person for non-payment of
debts (to be poor is no crime);
13)

Right against hand cuffing;

14)

Right against illegal arrest;

15)

Right against custodial violence;

16)

Right to bear child;

17)

Over loading of school bus violates Article 21;

18)
Donation of organ by husband to his ailing father is
not violation of Article 21;
19)

Right to electricity;

20)
Compensation for Medical negligence (like, child
birth after sterilization);
Contd24
-: 24 :21)
Before sending a pregnant woman to jail, the
government should ensure pre-natal and postnatal care
for mother and child. The birth place of the child should
be shown as Registration Office and not Jail.
22)
Interim compensation for rape victim (Miss Subhra
Chakraborty case in 1995).
In a case of Rudal Shah, though he was acquitted by
the Sessions Court on 30th June, 1968, he was released from
the Jail only on 16th October, 1982. Supreme Court fined the
Bihar Government Rs.50000/-.
Virginity Test violates Article-21. Holding of beauty
contest is against Article-21. Telephone tapping is violation
of Right to privacy.
Death sentence and killing a person by rope, is not
violation of Article-21.
Right to life does not include right to commit suicide.

Right to bail is a right included in Article 21 (Bail is the

rule and Jail is exception).
Prevention of sexual harassment at work places
(Visakha Vs State of Rajasthan) is included in Article-21.

Article-21 cannot be suspended even during emergency.

Article-21(A) : Right to Education

The State shall provide free and compulsory education
to all children of the age of 6 14 years in such manner as
the State may, by law, determine.
The right to education comes from Right to life.
Supreme Court in Unnikrishnan case declared Right to
Education is a Fundamental Right.
This article was added through 86th Amendment Act,
2002.
It is a fundamental duty for parents and guardians to send
their wards to school.

Article-22:

Protection against arbitrary arrest

Article-22 deals with 2 separate matters.

1) Those arrested under ordinary law of crime;
2) Those arrested under the law of preventive detention.
Contd25
-: 25 :-

Article-22 guarantees 4 rights to persons arrested

under ordinary law of crimes.
a) Right to be informed as soon as possible, of the ground
of arrest;
b) Right to consult and be represented by a lawyer of his
choice;
c) Right to be produced before a Magistrate within 24
hours of his arrest, excluding journey time from the
place of arrest to the place of Magistrate;

d) Freedom from detention beyond the said period, except

by an order of the Magistrate.

The above 4 are not available to 2 groups of people:

1) Enemy alien;
2) A person arrested
detention law.

and

detained

under

preventive

Safeguard against preventive detention:

1) The government can detain a person in custody only for 3
months;
2) For detention beyond 3 months, a report should be
obtained from Advisory Board, as to whether the
detention is justified or not;
3) Advisory Board consists of persons who are or who have
been or who are qualified to be appointed as Judges of
High Court;
4) Maximum detention
Parliamentary law;

period

will

be

prescribed

5) A person can be detained also in accordance

provisions of any law made by Parliament;

by
with

6) The person so detained should be informed about the

ground of detention as soon as may be, unless such
disclosure is against the public interest;
7) A person detained must have earliest opportunity to
represent against his detention.
Contd.26
-: 26 :-

Parliament may by Law prescribe :

a) The procedure to be followed by the Advisory Board in
an enquiry;
b) Maximum period of detention;

c) Circumstances and clauses of the case in which a person

can be detained for more than 3 months without getting
the opinion of Advisory Board.

44th Amendment Act, 1978 made the following changes :

1) The detention period before getting the opinion of
Advisory Board reduced from 3 months to 2 months.
2)

The composition of Advisory Board was changed as

follows:
a) The Board to be constituted on the recommendation
of Chief Justice of High Court;
b) Chairman should be serving Judge of High Court;
c) 2 members should be normally serving and in rare
case retired High Court Judges.

It also abolished the provision of preventive detention

without reference to Advisory Board.
Curiously, even after 32 years, the amendments made
through 44th Amendment Act 1978, have not been notified by
the Government.

Article-23 : Right against exploitation

Traffic in human beings and beggars and similar forms
of forced labour are prohibited.
Any contravention is
punishable under law.
However, State can impose
compulsory service for public purpose provided that the
State shall not discriminate on the grounds of Religion, Race,
Caste and Place of Birth.
Traffic in human being means selling and buying of men
and women like goods. It includes Bonded Labour and also
Devadasi system.

Contd.27
-: 27 :-

Article-24: Prohibition of employment of children

No child, below the age of 14 years, is employed to work

in any factory or mine or in any employment of hazardous
nature. This Article does NOT prohibit the employment of
children in harmless work.
It does not also prohibit
employment of the children above 14 years.

Article-25 -28 : Right to freedom of Religion/Secular

Rights/Religious Rights
Secularism has been declared as basic structure of the
Constitution in S.R. Bommai case by the Supreme Court. If
any political party preaches against secularism, it can be derecognized and also if any State government functions
against Secularism, Article-356 (i.e.) Presidents Rule can be
imposed.

Article-25 : Freedom of Conscience and free

Profession, Practice and Propagation of
Religion
Subject to Public Order, Morality and health and other
provisions of Part III, all persons are equally entitled to
freedom of conscience and right to freely profess, practice
and propagate the religion.

Nothing prevents the State from making Law on the

following :1. To regulate or restrict any economic, financial or
political or other secular activities associated with the
religious practices;
2. To provide social welfare or social reform or throwing
open Hindu religious institutions of public character to
all sections of Hindus.

Article-26:

Freedom to manage Religious Affairs

Subject to public order, morality and health every

religious denomination has the following 4 rights:(i)

To establish & maintain Institutions for religious and

charitable purpose;
(ii) To manage its own affairs in the matter of religion;
(iii) To acquire and own Movable and Immovable
properties;

(iv) To administer such property as per law. (They cannot

dispose of the property).
Contd28
-: 28 :-

Article-27 : Freedom from payment of taxes

It states that no person shall be compelled to pay any
tax, the proceeds of which are specifically appropriated in
payment of expenses for the promotion or maintenance of
any particular religion or religious denomination. If any
State aid is extended to all religious institutions including
the secular ones, without any discrimination, then Article 27
does not apply.

Article-28 : Prohibits imparting of religious

instructions or religious worship in educational
institutions.
There are four categories of Educational Institutions :(i) Established and wholly maintained out of State
funds;
(ii) Administered by the State but established by the
endowments or trusts;
(iii) Recognized by the State;
(iv) Aided by the State.
In the case of item 1, no religious instruction can be
imparted.
In the case of item 2, religious worship or instructions is
permitted.
In the case of item 3 and 4, religious worship or
instruction can be imparted only with the consent of the
individual and if they are minors, the consent of the
guardian should be obtained.

Article-29 & 30 : Cultural and Educational Rights

or Minority Rights
The first proviso to Article 29 guarantees to every
section of citizens, to conserve their distinct Language,
Script or Culture (LSC).

Clause 2 of the Article provides that no citizen can be

denied admission to any educational institution maintained
by the States or receiving aid out of State funds on the
grounds of Religion, Race, Caste or Language (RRCL).
Even though Article 29 relates to minorities, its purview
is not confined to them alone, because this is available to
any section of citizens i.e.) available to majority also. For
example - in Maharashtra, Punjabis or Biharis are minorities.
In other words, the deciding factor is the population of the
minorities in that particular area.
Contd29
-: 29 :-

Article 30 : All minorities whether based on religion

or language have the Right to establish and
administer Educational Institutions of their choice.
In granting aid to educational institutions, the State
shall not discriminate against any educational institution on
the ground that it is under the management of a minority
based on religion or language.
In making any law for compulsory acquisition of
property of any educational institution of such minorities,
the State should ensure that the amount fixed for acquisition
is adequate under the law and should not restrict the right
guaranteed under their clause.

Article 31:

Right to Property

(deleted)

Right to property has been deleted through 44 th

Amendment Act 1978 and placed as Article 300A as
Constitutional Right.
1st Amendment Act, 1951 inserted in Article-31(A) and
Article-31(B) and 25th Amendment Act, 1971 incorporated
Article-31(C).

Besides Article-31, there are 3 other Articles (viz.)

1) Article-31(A) - Abolition of Zamindari System otherwise
called Agrarian Reforms.

2) Article-31(B)
- Provides that none of the acts and
regulation in the 9th Schedule shall be land reforms.
Initially 9th schedule had only 13 acts and today it has
over 264 acts. e.g.) Tamil Nadu reservation act has been
incorporated in 9th Schedule.
3) Article-31(C) - It empowers Parliament and State
Legislatures to make Law to secure the Directive
Principles (i.e.) protection
of implementation
of
socialistic Principles given in Article-39(B) and 39(C).
Such Laws cannot be questioned.
[These have been discussed under salient features of
Fundamental Rights of Article- 14.]
Today the position is Article-39(B) & (C) can alone
prevail over the Fundamental Rights of Article-14, 19 and 31.
Contd.30
-: 30 :-

Article 32 : Right to Constitutional remedies

This provides a guaranteed remedy for enforcing
Fundamental Rights conferred in Part III of the Constitution.
This remedial right itself is a Fundamental Right, by being
included in Part III. Therefore, Supreme Court cannot refuse
to entertain any application seeking protection against
violation of F.Rs. Thus, Supreme Court is guarantor of FR
and custodian of secular and minority
rights.
That is the reason, why Dr. Ambedkar had declared in
Parliament in his introductory speech as follows :If I am asked to name any particular Article in this
Constitution as the most important, without which the
entire Constitution will become a nullity, I can not refer
to any other Article except Article 32.

Article-32 has 4 provisions :(1)

Class-1 - guarantees of a right to move Supreme
Court for enforcement of Fundamental Rights.
(2)
Class-2 empowers the Supreme Court to issue
appropriate directions/orders including, Prerogative

Writs in the nature of Habeas Corpus, Writ of

Mandamus,
Prohibition,
Certiorari
and
QuoWarranto for enforcement of Fundamental Rights.
(3)
Class-3 empowers the Parliament to make a Law
empowering any other Court to exercise within the local
limits of its jurisdiction all or any of the Power
exercisable by Supreme Court under the above Class.
(4)
Class-4 provides that this right to Constitutional
remedy cannot be suspended except as otherwise
provided in the Constitution.

What is except as otherwise provides?

When the National emergency under Article-352 has
been declared, the President can suspend Article-32
in respect of all Fundamental Rights except Article20 & 21.
Contd31
-: 31 :This Power is derived from Article-359. Supreme Court
& High Court under Article-32 & 226 can issue following
Writs for enforcement of Fundamental Rights :
(1) Writ of Habeas Corpus means produce the body.
The power to issue this Writ is vested with Supreme Court
& High Court. This is the direction of the Court to an
Authority who is detaining another, ordering him to bring
the body of the person at a specified time to a specified
place for a specified purpose. The purpose being to set at
liberty the person who is confined without any lawful
jurisdiction normally the Writ is issued only against the
State but rarely against Private individual also (as in the
case of a Cancer patient seeking direction of the Court to
see his own daughter).

Habeas Corpus cannot be issued in the following cases :

(i)

Where the person against whom the Writ is

issued or the person who is detained is not
within the jurisdiction of the Court;

(ii) To secure the release of a person imprisoned by

the Court on a criminal charge or under
Preventive Detention Law;
(iii) To interfere with the proceedings of Contempt of
Court or Contempt of Parliament.

(2)

Writ of Mandamus - means be command or be

order. This is an Order of Supreme Court or High Court

commanding a person or an Authority to do what is his
duty or NOT to do what he is NOT lawfully entitled to do
so. Here, it commands a person to whom it is addressed
to do some public or quasi-public legal duty which he
has refused to perform for which the Petitioner has a
right. In other words, the Applicant should have a legal
right to the performance of the legal duty of public
nature. It lies not only against State but also against an
Administrative Authority.

Writ of Mandamus cannot be issued :

(i)
(ii)

if the duty is discretionary nature.

to any private individual unless the State is in

(iii)

collusion.
Mandamus is not issued against the President or
any Governor.
Contd32
-: 32 :-

(3)

Prohibition

This is issued by the higher Court

to prevent an inferior Court or Tribunal from exceeding
its jurisdiction or acting contrary to the Rules or acting
contrary to the Principles of Natural Justice. In other
words, this Writ is issued by the Supreme Court or High
Court to a Subordinate Court to prevent it from usurping
(encroaching) the jurisdiction with which it is not legally
vested.
The difference between Mandamus and Prohibition is
that the former commands activity and the latter
commands inactivity. Besides, the former is issued not
only against Judicial Authorities but also can be issued

against Administrative Authorities, whereas the latter is

against only Judicial and Quasi-judicial authorities.

(4)

Certiorari

- This is an Order from Supreme Court

or High Court for removal of a Suit from an inferior
Court to the Superior Court. It is issued to bring up the
decision or records of the inferior Court to the Superior
Court with a view to getting an illegal Order quashed.
This Writ is also against Judicial & Quasi-Judicial
Authorities and NOT against any Administrative
Authority.

Difference

between

Prohibition

&

Certiorari

Prohibition is issued to prohibit the Subordinate Court

from making an illegal Order, whereas Certiorari is
issued to nullify an Order made unlawfully. In other
words, Prohibition is issued during pendency of
proceedings whereas Certiorari is issued at the end of
proceedings to nullify an Order which is illegal.
(5)
Quo Warranto Under this Supreme Court or
High Court may grant an injunction to restrain a person
from acting in an Office to which he is not legally
entitled and may declare the Office as vacant. The
Application for the issue of this Writ is maintainable
only in respect of an Office of Public nature created by
Law or Constitution and not against any Private
Institution. This Writ can be issued very rarely.

Article-33 Restriction of Fundamental Rights

Fundamental Rights in application of Armed Forces -

Parliament may, by Law, determine to what extent any of the

Fundamental Rights be restricted or abrogated in their
application to Armed Forces or Forces Charged with the
maintenance of Public Order and tranquility to ensure proper
discharge of their duties and maintenance of discipline
among them.

Contd33
-: 33 :50th Amendment Act, 1984 amended this Article-33 and
further extended the scope to 2 more Categories :

(1) Persons employed in any Bureau established by the

State for intelligence;
(2) Persons employed in connection with any
Telecommunication System set up for Armed Forces or
Central Police Organization or Intelligence Bureau.

Article-34 Indemnification (Protection) during

Martial Law
Parliament may, by law, indemnify any person in the
services if the Union/State or any other person in respect of
any act done by him in connection with the maintenance or
restoration of order in any area where Martial Law is in
operation or validate any sentence passed or punishment
inflicted (imposed). There is a provision in the Constitution
which speaks about declaration of Martial Law.
Some
experts compare Martial Law with National Emergency which
does not appear to be correct because during National
Emergency, the Council of Ministers exists and the President
acts only on the advice of the Council of Ministers.

Article-35 Powers of Parliament to make Law

This Power entrusted to Parliament especially for
enforcing Fundamental Rights. Parliament has the Powers
and State Legislatures do not have the Powers to make Law
with reference to any of the matters in Class-3 of Article-16
(residential condition to employment), Class-3 of Article-32
(authorizing other Courts with similar Powers as that of
Supreme Court for enforcement of Fundamental Fights),
Article-33 (modification of rights in application to Armed
Forces, Central Organization, Intelligence Bureau and
Telecom
Personnel
in
these
three)
and
Article-34
(indemnification of the acts done by the Officials when
Martial Law is in force). Parliament has also the Powers to
prescribe punishments for the acts which have been
declared as offence (like, Untouchability, Titles & Forced
Labour, etc.).
Part-IV (Directive Principle of State Policy has been
taken from Irish Constitution. For the State, the same
definition given in Article-12 applies.

Article-37
enforceable

states that the Directive Principle are not

through Court of Law, nevertheless these

directives are fundamental in the governance of the country

and it is the duty of the State to apply these Principles in
making Law.
Contd34
-: 34 :These have been described as Conscience of
Constitution to transform the Police State into a Welfare
State. These constitute a comprehensive Political, Social
and Economic Programme to establish a modern Welfare
State.

Directive Principles have been criticized as :

(1) Pious wishes of a old man;
(2) A New year Resolution to be broken sooner than later;
(3) A Post-dated Cheque drawn on an unknown Banker to
be payable at the convenience of the Bank.

Article-38 Provides 2 objectives :

(1) Promotion of Welfare of the people by securing a
social order with social, economic and political justice.
(2) To minimize the inequality of income and status
facilities and opportunities not only among individuals
but also among different groups of people (this was
added through 4th Amendment Act, 1978).

Directive Principle are classified into 3 groups :

(1) Socialistic Principles.
(2) Gandhian Principles.
(3) Liberal or Western or Miscellaneous Principles.

(1) Socialistic Principles

(1) Adequate means of livelihood.
(2) Equal Pay for equal work.
(3) Workers participation in Management (46th
Amendment Act, 1946).
(4) Protection of workers and children.
(5) To
regulate
the
economic
system
to
avoid
concentration of wealth and means of production.

Contd.35
-: 35 :(6) Decent standard of living and facilities to all workers.
(7) To secure health and strength of workers, to secure
children economic abuse with human conditions and
maternity relief for women (added through 42 nd
Amendment Act).
(8) Right to work, right to public assistance in the case
of unemployment, old age, sickness and disablement.
(9) Right to education (this has been
Fundamental Right under Article-21(A).

made

as

(2) Gandhian Principles

(1) To organize Village Panchayats and Centres of Selfgovernance.
(2) Promotion of Weaker Sections especially, Schedules
Castes/Scheduled Tribes and protect them from
exploitation and social injustice.
(3) Promotion of Cottage Industries.
(4) Prohibition of liquor and intoxicants.
(5) Prohibition of Cow Slaughter.

(3) Liberal or Western Principles

(1) Uniform Civil Code (Article-44).
(2) Free and Compulsory Education for the children
below the age of 6 years (86th Amendment Act, 2002).
(3) Separation of Judiciary from Executives.
(4) Effective Legal System with even handed justice to
all
Citizens
including,
Free
Legal
Aid
(42 nd
Amendment Act, 1976).
(5) Re-organization

of

Agriculture

and

Animal

Husbandry on scientific lines.

(6) Protection of Environment and Wild Life.
(7) Protection of Monuments of Historical importance.
(8) Promotion of International Peace and Security.
(9) Respect
for
International
Law
and
Treaty
Obligation.

Contd36
-: 36 :Of the above directives, Article-38 & 39 provide the
Doctrine of Distributive Justice. This concept indicates
the removal of economic inequality.
Article-38 gives objectives & Article-39
implementation of Socialistic Principles.

provides

Article-39 says that the ownership and control of the

material resources of the society should be so distributed
that it serves the common interest.

Article-39(C) says that the operation of the economic

system should be so regulated that it does not result in the
concentration of wealth and means of production to the
detriment of Society.

Difference between Fundamental Rights & Directive

Principles :
Fundamental Rights are limitation on the State.
Directive Principles are positive obligation of the State.
Fundamental Right ends political democracy and Directive
Principle ends socio-economic democracy.
Fundamental
Rights can be enforced through Court of Law whereas
Directive Principles cannot be enforced.
Article-13 & 32 protect Fundamental Rights whereas
Directive Principles do not have the protection.

Relation between Fundamental Rights & Directive

Principles :
Basically, because of the protection from Article-13 &
32, Directive Principles cannot over-write Fundamental
Rights. However, Supreme Court propounded a Doctrine of
Harmonious Relations. According to Supreme Court, there is
no conflict between Fundamental Right and Directive
Principle. They complement each other. If any provision of
the Constitution gives 2 or more interpretation, the Court
should take that interpretation which avoids the conflict. If

the conflict is unavoidable, then Fundamental Right must

prevail.
Supreme Court struck down the Bank Nationalization
Act and Privy Purse Act because these violated Article-14, 19
& 31. These 2 Legislations meant to implement Article-13
(B) & (C). 25th Amendment Act, 1971 inserted Article-31 (C)
and extended protection from Judicial Review to Article-39
(B) & (C).
Contd.37
-: 37 :-

Implementation of Directive Principles

(1) Abolition of Zamindari System.
(2) Land Reforms.
(3) Organization of Village Panchayats

(73rd

&

74th

Amendments).
(4) Promotion of Cottage Industry.
(5) Establishment of Silk Board, Coir Board, Khadi &
Village Industries Commission, All India Handicrafts
Board, Maternity Act, Childrens Act, Industrial
Disputes Act, Protection of Civil Rights Act, Dowry
Prohibition
Act,
Abolition
of
Privy
Purse,
Nationalization of Insurance, Nationalization of Banks,
etc. are the result of its implementation.

Directive Principles which have not been fully

implemented
(1)
(2)
(3)
(4)
(5)

Right to Work.
Uniform Civil Code.
Prohibition of Liquor.
Prevention of Cow Slaughter.
Participation of Workers in Management.

Directives in other Parts of Constitution

(1) Provision of facilities for instruction in mother

tongue at the Primary stage to the children of
linguistic minorities {Article-350(A)}.
(2) Promotion of spread of Hindi and its development
so that it may serve as the medium of expression of
the composite culture (Article-351).
(3) The Clauses of Schedule Castes & Scheduled Tribes
should be taken into account consistently with
maintenance of efficiency in administration (Article335).

Contd..38
-: 38 :-

Article-51(A) {Part-IV(A)} - Fundamental Duties

Fundamental Duties taken from the Constitution of
Japan and other Communist Countries recommended by Dr.
Sharan Singh Committee added through 42 nd Amendment
Act, 1976. Originally, there were 10 Duties. Subsequently,
86th Amendment Act, 2002 added a duty for every Citizen
who is a Parent or Guardian to provide opportunity for
education for his child/ward in the age group of 6 and 14.

The other 10 Fundamental Duties are :

(1) To abide by the Constitution and respect its ideals,
institutions, National Flag and National Anthem.
(2) To cherish and follow the noble ideals of our
Freedom Struggle.
(3) To protect and afford Sovereignty, Integrity & Unity
of the country.
(4) To defend the country and render National Service.
(5) Promotion
of
Harmony,
Spirit
of
Common
Brotherhood among all People of India and to
renounce the Practices, derogatory to the Dignity of
Women.
(6) To protect rich Heritage of our Country.
(7) To safeguard Public Property and avoid violence.

(8) To develop scientific temper, humanism and spirit of

enquiry.
(9) To improve natural environment including, Forest,
Rivers with compassion for living creatures.
(10) To strive for excellence in all spheres of individual
and collective activity so that the country rises to
higher level of achievement.
Fundamental Duties is an aid to interpret the
Constitution. Even though, it cannot be enforced through
Court of Law. It is a Guide for interpretation of the provision
of the Constitution. If there is any doubt in Constitution, the
Mandate in Article-51(A) should provide. In a recent case of
Compulsory Retirement of an official who overstayed his
leave was upheld by the Supreme Court observing that the
official has isolated his Fundamental Duty in rendering the
National Service.
Contd39
-: 39 :-

Part-V Union Executives

(Extend and Scope of Executive Powers of Union)
Union Executives consist of President, Vice President,
Council of Ministers and Attorney General.

Article-52 - provides that there shall be a President of

India.

Article-53 says that the Executive Powers of the Union

are vested in President of India and shall be exercised by
him either directly or indirectly through his Subordinates in
accordance with the provisions of the Constitution.
The Supreme Command of all the 3 Armed Forces is also
vested in President of India and he is to exercise these
Powers as authorized by Law. Nothing in this Article shall be
deemed to transfer to President any function which has been
conferred on the State or any other Authority. Similarly,
Parliament is authorized to confer any function on any
authority other than President.

The term Executive Power given in Article-53 is

explained in Article-73 which explains the extent and scope
of the Executive Power of the Union.
Executive Power is not defined in the Constitution.
However, it indicates the residue or balance of the
governmental functions which remained after Legislative
and Judicial functions are taken away.
Broadly, the Executive functions cover determination
and implementation of Policies, initiation of Legislative
proposals, maintenance of Law and Order, promotion of
socio, economic and political welfare schemes, formulation
of Foreign Policies, general administration of the State
including, day-to-day administration except, those functions
specifically given to Judiciary and Legislature. Therefore,
Article-73 says that the Executive Power of the Union
extends to the matters on which Parliament has Powers to
make Law and also to exercise such rights which are
exercised by virtue of any Treaty or Agreement.

How the Executive Powers of the Union are

exercised?
Article-53 provided that the Executive Powers of the
Union is vested in President and he will exercise these
Powers either directly or indirectly through his Subordinates
in accordance with the provisions of the Constitution.
Contd..40
-: 40 :This term namely in accordance with the provisions of
the Constitution should be read with Article-74.

Article-74 says that there shall be a Council of

Ministers with the Prime Minister at the head to aid and
advise the President who shall in exercise of his functions
act according to such advice. By stating in exercise of

his functions, it is made clear that the President has

to act in all his functions only on the advice of the
Council of Ministers.

He cannot act without the advice of the Council of

Ministers nor can he act contrary to the advice of the Council
of Ministers. In case of any difference of opinion, the only
option open to the President is to refer back any advice to
the Council of Ministers for reconsideration. If the Council of
Ministers reconsidered the advice and tenders again the
same advice, such a reconsidered advice has binding on the
President.
Most importantly, whether any advice was given by
Council of Minister to the President and if so the nature of
advice cannot be questioned in any Court of Law, a judicial
immunity is given to all Cabinet decisions. It is also made
clear that any number of Ministers without a Prime Minister
is not a Council of Ministers whereas a Prime Minister with
only one Cabinet Minister constitutes a Council of Ministers.

How the Council of Ministers is formed?

Article-75 explains formation of Council of Ministers.

President appoints the Prime Minister and on his advice the

other Ministers. Ministers hold their office during Pleasure
of the President. Council of Ministers is collectively
responsible to Lok Sabha. President is to administer Oath of
Office and Secrecy to all Ministers in the Format as given in
Schedule-III.
A Minister who is not a Member of either House of
Parliament can remain as Minister only for 6 months within
which period he should become a Member of either House
failing which he will lose Ministership.

91st Amendment Act, 2003 has provided that the

strength of Council of Ministers should not exceed 15%
of the strength of Lok Sabha.
Contd41
-: 41 :Normally, Prime Minister should be a Member of Lok
Sabha but rarely from Rajya Sabha also. Constitution does
not provide for the post of Deputy Prime Minister. It is only
a matter of description and does not confirm any power of
the Prime Minister.

What is collective responsibility?

Collective responsibility means that the Council of
Ministers as a body is responsible only to Lok Sabha for
general conduct of the affairs of the Government.
The
Council of Ministers works as a team and all the decisions of
the Cabinet are joint decisions of the Members of the
Cabinet. No matter whatever be there personal difference of
opinion within the Cabinet and once a decision is taken in
the Cabinet, it is the duty of each Minister to stand by the
decision and support it both in the Legislature and outside.
In other words, Cabinet as a team sinks and sails together. If
any Minister does not agree with a Cabinet decision, the
option is open to him is to resign. He cannot remain in the
Cabinet and oppose the decision of the Cabinet. This Article
also implies that Council of Ministers is responsible only to
Lok Sabha i.e. No Confidence Motion cannot be brought
before Rajya Sabha.

What is individual responsibility?

Every Minister is responsible for the acts of the Officers
of his Department. He is to reply Questions, Adjournment
Motion and Calling Attention Motion regarding the affairs of
his Department in the Parliament.
The Minister is
responsible and he cannot throw the responsibility on
officers or other Ministers for every act of negligence raised
in Parliament.
However, if the Minister has taken the
Cabinet into confidence, then the Principle of collective
responsibility applies and the whole Cabinet is responsible
for that and it should defend the Minister if such a decision
goes wrong.

Duties of the Prime Minister towards President

Article-77 All Executive functions of Government of India
shall be expressed to be taken in the name of President.
Orders and other instruments made and executed in the
name of President, should be authenticated in such a
manner as specified in the Rules to be made by President.
The validity of an Order made or executed by President and
so authenticated cannot be questioned in any Court of Law
on the ground that it is not an order made or executed by
President himself.

Contd.42
-: 42 :For Convenient transaction of business of Government
of India, the President is to make 3 Rules which are :
(1)
(2)
(3)

Transaction of Business Rules.

Allocation of Business Rules.
Authentication of Order Rules.

Article-78 Constitutional Duties of Prime Minister

towards President

The Prime Minister has 3 duties :

(1)

To communicate to President all the decisions of the

Council of Ministers on the administration of the affairs
of the Union and the proposals for Legislation.

(2)

To furnish such information relating to the

administration of the affairs of the Union and the
proposals for Legislation as the President may call for;

(3)

If the President so requires, the Prime Minister is to

submit for consideration of Council of Ministers any
matter on which a decision was taken by a Minister but
has not been considered by Council of Ministers or
Cabinet.

Even though, the Prime Minister is duty bound to

provide
information
sought
for
by
President,
the
Constitution does not specify as to when such information
should be provided. Therefore, the Prime Minister can meet
him every week as Pt. Jawahar Lal Nehru did, every month
as Mrs. Indira Gandhi did and quarterly as Mr. Rajiv Gandhi
did.

President of India
President of India is the Head of State and he is the symbol
of unity of the country.

Qualifications :

Citizenship, should have completed 35

years of age, should be an Voter in any of the Parliamentary
Constituency, should not hold any Office of Profit under the

Government of India or any State Government or local

authority. However, holding the Office of President, Vice
President, Governor or Minister of the Union or the Sate or
not construed as Office of Profit.
Contd43
-: 43 :-

Term of Office : 5 years from the date of entry into the

Office. Even after the expiry of the specified term, he will
continue till his successor enters. He is eligible for reelection for any number of terms. He can resign by writing
to Vice President. He can be removed by a process of
Impeachment.
Elections to fill the vacancy caused by the expiry of the
term should be completed before the expiry of the term.
However, election to fill the casual vacancy due to death or
resignation or removal, etc. should be held within 6 months.
During the period of 6 months, Vice President will act as
President.

Privileges :

The Pay and Allowances and emoluments of

the President and his Secretariat are Charged into
Consolidated of Fund. The Salary, Allowances and other
Privileges cannot be varied to the disadvantage of the
President during the term of his Office.
In addition, President enjoys the immunity given to him
under Article-361 of the Constitution (an Exception to
equality before Law).

Conditions for holding Office :

The President of India

should not be a Member of either House of Parliament or
State Legislature. If a Member of either House of Parliament
or State Legislature gets elected as President, he would be
deemed to have vacated his seat on his entry into the Office
of President.
His emoluments are Rs.1.5 Lakh per month as Salary
and Rs.75000 per month as Pension. He is administered
Oath of Office by Chief Justice of India or in his absence,
Senior-most Judge of Supreme Court.
The primary
responsibility of the President is to Preserve, Protect and
Defend the Constitution.

Election of President :

The President of India is

elected by an Electoral College consisting of elected
Members of both the House of Parliament and elected
Member of Legislative Assembly of all the State including,
Delhi & Pondicherry. The nominated Members of Parliament
can NOT vote.

The election is held in accordance with the System

of Proportional Representation by Single Transferable
Vote. The Vote being Secret. The basis for proportional
representation
is
uniformity
in
the
scale
of
representation among the States and parity between the
States.
Contd. 44
-: 44 :In other words, every elected Member of Legislative
Assembly of each State shall have as many as there are
multiples of 1000 in the quotient by obtaining by dividing
the population of the State by the total number of elected
Members of that Assembly.

Value of a Vote of an MLA is = State Population (as per

1971 Census) X
1
Total elected Members of the
Assembly
1000
The balance of 500 or more should be taken as 1 (one).
Let us say Punjab Population is 2,08,49,840. There are 208
elected Members. Let us calculate the value of a Vote of an
MLA of Punjab as under :-

100

Value of a Vote of an MLA = 20849840

208

1__ =

1000

Therefore, each MLA of Punjab can cast 100 Votes. 208

Members of Punjab Assembly can vote upto the value of
20,800. The number of Votes which each elected Member of
Parliament can cast is obtained by dividing the total number

of Votes of Legislative Assembly of all the States obtained

under the above formula by the total number of elected
Members of both the Houses of Parliament. If the balance
exceeds half, it is treated as 1.

For e.g. the total number of Votes of elected Members of

Assemblies of all States is 74940 and the total number of
elected MPs is 750, then the value of 1 MP is :
74940 =
750

99 23

i.e.

99 + 1 = 100

25

In other words, the total value of an MP Votes is 75000

(i.e. 750 X 100).

Electoral Quota
In the system of proportional Representation, when a 2
or more candidates contest for a Single Post, the
winning candidate should get more than 50% either in
the 1st Count or in subsequent Counts. This more than
50% is called Electoral Quota.
Contd45
-: 45 :-

For e.g.
Electoral Quota

= No. of Valid Votes Polled

No. of Seats Vacant + 1

(+) 1

If the Votes Polled is 100 and Seat Vacant is 1.

Electoral Quota will calculated as under :

100 (+) 1 = 100

1+1
2

Now, the

= 50 + 1 = 51

Single Transferable Vote has been explained as

under :In Single Transferable Vote, each Voter has a choice of
more than one preference. He can mark his preference in

the Ballot Paper. The 2nd & 3rd preference Vote are taken into
consideration in the 3rd and subsequent Counts.
In the 1st Count only 1st preference Votes are considered.
If no candidate gets Electoral Quota, then the 2 nd Counts
occurs.
At this stage, the Candidate with least number of
Votes is eliminated. His Votes are transferred in favour of
the Candidates according to 2 nd preference. This process
goes on and subsequent preferences are counted until 1
Candidate gets equal to or more than the Electoral Quota.
This process includes re-poll also :

For e.g.

There are 4 Candidates (A), (B), (C), (D). Valid

Votes are 15000 and Electoral Quota is 7500 + 1 =
7501.

In the 1st Count, the Votes polled in favour of the Candidates

are as follows :(A)
(B)
(C)
(D)

=
=
=
=

5250
4800
2700
2250

|
|
|
|

1st Preference Votes

Here, no one got the Electoral Quota namely 7501.

Now, (D) with least number of Votes is out of the race.
His 2nd preference Votes will be transferred to the rest of
the Candidates.
Contd46
-: 46 :Let us presume that the following Votes polled in favour of
the Candidates as their 2nd Preference :
(A)
(B)
(C)

=
=
=

300
1050
900

|
|

2nd Preference Votes

Now, add the above Votes to the respective Candidates

which will be as under :
(A)
(B)
(C)

=
=
=

5250 + 300 = 5550

4800 + 1050 = 5850
2700 + 900 = 3600

Here also, even after 2nd Count is over, no one got the
Electoral Quota. Now, (C) having obtained the least number
of Votes is out of the race.
The 3 rd preference Votes
recorded in favour of (C) are now transferred to (A) & (B)
respectively. The 3rd Preference Votes polled in favour the
Candidates are as under :
(A)
(B)

1700
1900

|
|

3rd Preference
Votes

Now, add the above Votes to the respective Candidates

which will be as under :
(A)
(B)

=
=

5550 + 1700 = 7250

5850 + 1900 = 7750

Therefore, (B) having obtained more than the Electoral

Quota and also the highest, he is declared elected in spite of
the fact that he got less number of 1 st preference Votes than
(A).
Any dispute with regard to Presidential Election shall be
decided by the Supreme Court and its decision is final
(Article-71). However, no action of the President shall be
declared invalid by the Court even if it invalidates the
election on the ground of violation of any provision of
Presidential Election Act. The Court will not go into the
suitability of the person elected because this is to be
decided by the Member of Electoral College and not by the
Court.
After having been unseated by Allahabad High Court,
Smt. Indira Gandhi brought out 39th Amendment Act, 1975
whereby the disputes with regard to election of President,
Vice President, Prime Minister & Speaker are to be decided
by an Authority appointed by a Law to be made by
Parliament.
Contd.47
-: 47 :It was also envisaged that the Law so made cannot be
questioned in any Court of Law. However, 49 th Amendment
Act, 1978 nullified this Amendment and restored status quo
ante.

The election can be challenged only by the Candidate

supported by 20 Electors (in the case of President and 10 in
the case of Vice President). Supreme Court declared that
incomplete Electoral College cannot be a ground for
challenging the Presidential Election.

Impeachment of President (Article-61)

President can be impeached only for violation of
Constitution. The charges shall be preferred by either House
of Parliament in the form of a proposal conferred in a
Resolution being moved after atleast 14 days Notice in
writing signed by NOT less than 1/4 th of total Members of
that House declaring their intention to more the Resolution.
That Resolution shall be passed by a majority of 2/3 rd of the
total Membership of that House.
Now, the other House shall investigate the Charges or
Cause of the Charges to be investigated. The President has
the right to appear or be represented during such
investigation. If, as a result of investigation, a Resolution is
passed by a majority of NOT less than 2/3 rd of the total
Membership of that House declaring that the Charges have
been sustained, then such a Resolution shall have the effect
of removing the President from the date on which the said
Resolution is passed.

Deficiencies
(1)

Only MPs are involved for the removal of the

President whereas in the case of Presidential Election,
Electoral College consisting of MPs & MLAs involved.

(2)

Nominated MPs have no role in the Presidential

Election whereas in the process of his removal, they can
vote.

(3)

Every Investigation Committee be made in the

name of the President. In the case of Impeachment, the
accused President cannot be made in his name.

(4)

There is no Time limit defined nor violation of

Constitution is defined.

Contd48
-: 48 :-

Vice President
Vice President is the Ex-Officio Chairman of Rajya Sabha.
He shall not hold any Office of Profit. However, when he acts
as a President, he shall not perform the duties of Chairman,
Rajya Sabha. In the event of any vacancy in the Post of
President due to Death, Resignation or Removal or
otherwise, Vice President will act as President till the new
President enters upon the Office.
The election to the
President should be held within 6 months. However, when
President is unable to discharge his functions due to illness
or for any other cause, Vice President shall discharge his
functions. When Vice President acts as President, he enjoys
all the Powers, Immunities and Emoluments as allowed for
President.

Qualifications Should be a Citizen of India, 35 years of

age and should be a Voter in any of the Parliamentary
Constituency and shall not hold any Office of Profit.
However, holding Office of President, Vice President,
Governor or Minister in the Union or State will not be
construed as an Office of Profit.
Vice President is elected by an Electoral College consists
of MPs of both the Houses of Parliament by a System of
Proportional Representation by Single Transferable Vote and
Voting being Secret. In other words, nominated MPs can
also Vote. Vice President has a term of 5 years from the
date of entry into the Office. He can resign by writing to
President.
Vice President is removed from Office by a Resolution of
Rajya Sabha after 14 days Notice and passed by a majority of
all the then Members of the House and
as agreed to by

Lok Sabha and for this no reason to be cited nor any

initial strength of support is required.

Importance of Vice President His primary duty is to

preside over the sittings of Rajya Sabha as Chairman. He
can act as President in the vacancy created by death or
resignation or removal of the sitting President. Even in such

cases, he can act only for 6 months within this period, the
election for President should be conducted.
The moment he becomes President, he is no longer Vice
President because he becomes full-fledged President with all
privileges, immunities and status. The Constitution does not
provide any machinery to consider Presidents inability to
discharge his functions. It is for the President to decide
when he is unable to discharge his functions and when he
would be able to resume his duties.
Contd49
-: 49 :-

Powers of the President

(1) Executive Powers
All Executive Powers are vested with the President who
exercises the Posers in accordance with the provisions of
Article-74. All Executive actions of the Union are expressed
to be taken in the name of President. President makes Rules
for Authentication of Orders and other instruments made
and executed in his name. He also makes the Rules for
convenient Transaction of Business and Allocation of
Business. President appoints the Prime Minister and on his
advice, the other Ministers. President appoints the Attorney
General, Comptroller & Auditor General, Judges of Supreme
Court & High Courts, Governors of the States, Chairman &
Members
of
Election
Commission,
UPSC,
Finance
Commission, etc. In making some of the appointments, he is
required to consult certain persons other than his Ministers.

For e.g. While appointing the Judges of Supreme Court, he

is to consult Chief Justice of India.
Eventhough these dignitaries are appointed by
President, they can be removed only after following the
procedure stipulated in the Constitution. In the case of
inferior officials, the President is obliged to consult UPSC in
matters relating to appointments and discipline.
President is the Administrator of Union Territories.
President has the right to be informed of all decisions of the
Cabinet and also the Legislative Proposals. He should be

provided with such other information as may be required.

He can ask the Prime Minister to place a decision of an
individual Minister for consideration of the Council of
Ministers. He may issue directions to the State Governments
for maintenance of Law & Order.

(2)

Diplomatic Powers
President represents the Nation. He sends and receives
the Ambassadors and other Diplomatic Agents. All Treaties
and International Agreements are made in his name though
that implementation may require Legislation

Contd50
-: 50 :(3)

Military Powers
President is the Supreme Command of the Defence
Forces. He can declare War & Peace. He appoints all the 3
Chiefs of Army. However, the Military Powers are regulated
by Law.

(4)

Legislative Powers
Union Legislature consists of President, Vice President,
Lok Sabha & Rajya Sabha. He is to summon each House of
Parliament periodically. But the interval between 2 Sessions
should not exceed 6 months. He can prorogue both the
Houses and can Dissolve Lok Sabha. He can convene Joint
Sitting of both the Houses to resolve a dispute between the
two Houses over a Non-Money Bill. At the commencement of
1st Session of each year, the President will address a Joint
Sitting of both the Houses of Parliament.
He can also
address any time either House or both the Houses together
and for this purpose, he can require the attendance of the
Members. He can send Message to either House or both the
Houses with reference to any Bill pending or otherwise.
President can nominate 12 Members to Rajya Sabha
from among those who are distinguished in the areas of
Literature, Art and Social Science. He can also nominate 2
Anglo-Indian Members for Lok Sabha, if this said Community
is not adequately represented in Lok Sabha. He appoints

Protem Speaker (The senior- most Member to be elected

as Speaker for the purpose of Oath of Office and Secrecy)
and also Acting Deputy Chairman when Chairman is acting as
President and Deputy Chairman is not available.
In certain cases, the recommendation of President is
essential for introduction of certain Bills like, Money Bills,
Finance Bills, Financial Bills, Bill which is to change the name
of a State or Territory of the State, etc. and not following the
above provision, the President can eventually refuse to give
assent to the Bill (as in the case of Shri R. Venkataraman,
Ex-President).
No Bill can become an Act without the consent of the
President. When a Bill is passed by both the Houses of
Parliament and it is presented to President for his assent he
has the following options :
(1) He can declare his assent in which case the Bill becomes
an Act;
(2) He can declare that he is withholding his assent which is
called (otherwise known as Absolute Veto)
Contd.51
-: 51 :(3) He may in the case of Bills other than Money Bill and
Constitutional Amendment Bill, return the Bill for
reconsideration of both the Houses of Parliament. If the
Bill is passed again by both the Houses, the President
has to give his assent.
This is called Suspense
Veto.
In addition to Absolute Veto and Suspense Veto, there is
one more Veto called Pocket Veto. The Constitution has
not prescribed any time-limit for President to decide on
giving assent or not.
Taking advantage of this lack of
provision, President sits over a Bill or Pockets the Bill, which
is known as Pocket Veto.

For e.g. Post Office Amendment Bill, 1986, President may

withhold, assent in the following cases :
(1)
Private Members Bill on the advice of the Council of
Ministers;

(2)
In the case of Govt. Bill after the passage but
before assent, a new Council of Ministers took charge
and advises the President to withhold his assent.
(3)
In case of Bills which did not follow the necessary
procedures or which are beyond the competence of
Parliament.
(4)
In respect of Constitutional
President has to give his assent.
exercise Pocket Veto.
(5)

Amendment Bill,
He cannot even

Ordinance Making Powers (Article-123)

If, at any time, when both the Houses of Parliament are
not in Session and when the President is satisfied that
circumstances exist which it make it necessary to take
immediate action, he may issue such an Ordinance as the
circumstances may warrant so.
The Ordinance shall have the same force of law made by
Parliament.
The Ordinance should be placed before
Parliament and should be approved by both the Houses
within 6 weeks from the date of re-assembly unless it is
disapproved earlier by Parliament. President can withdraw
the Ordinance at any time.
Ordinance making Powers are co-terminus with the
Legislative Powers of Parliament.
It implies that the
Ordinance can not violate Fundamental Rights.
Contd.52
-: 52 :It has been made clear by adding Ordinance within the
definition of Law in Article-13. The Ordinance making Power
is exercised by President on his own satisfaction. It cannot
be questioned in any Court of Law. Ordinance can be issued
only when both the Houses of Parliament are not in Session.
An Ordinance can also be issued when one House is in
Session and the other House is not in Session because a law
cannot be made by one House alone.
Except India, no other country has this provision where
Executives exercising the Powers of Legislature. This Power

has been greatly misused in Wadhwa Case wherein Supreme

Court commented that the misuse as fraud on the
Constitution.
Whenever Govt. seeks to replace the
Ordinance with a Bill, an Explanatory Statement should
accompany, explaining the urgency for Ordinance.
This
Statement is only for information and no discussion is held
on that.
(6)

Judicial Powers (Article-72)

The President has the Powers to grant Pardon,
Reprieve, Respite, Remission of any Punishment or Remit or
Commute the sentence of any person convicted of any
offence in the following 3 cases :(1)
In all cases, where the punishment or sentence is
by a Court Martial;
(2)
In all cases, where the punishment or sentence is
for an offence against any Law relating to a matter on
which the Executive Powers of Union extends.
(3)
In all cases, where the sentence is a Sentence of
Death.

The purpose of this Judicial Power for the President

is to correct the possible errors committed by the
Judiciary.
In Kehar Singh case, Supreme Court laid down following
Principles :(1)
(2)

The convict has no right to insist for oral hearing;

No guidelines can be prescribed for President for

exercising this Power;

(3)
President can exercise this Power only on the
advice of Council of Ministers;
(4)
President can go into the merits of the case and
take a different view;
(5)
The Powers of the President is not subject to
Judicial Review.
Contd53
-: 53 :-

Pardon

to completely absolve the offender from all

punishments and sentences and place him in the same
position as if he has not committed any crime at all.

Commutation

to substitute of one form of

punishment for another of a lighter character (Rigorous
Imprisonment to Simple Imprisonment just one below).

Remission

to reduce the amount of sentence without

changing the character (one year Rigorous Imprisonment
to 6 months Rigorous Imprisonment).

Respite

to award a lesser Penalty on special grounds

(a pregnant lady caught for theft being awarded Simple
Imprisonment instead of Rigorous Imprisonment).

Reprieve

to temporarily suspend execution of a

sentence
pending
proceedings
for
Pardon
or
Commutation.
(7)

Emergency Powers
(1)

National Emergency (Article-352)

If the President is satisfied that a grave emergency

exists whereby the security of India is threatened by
war or external aggression or armed rebellion, he may
proclaim emergency in respect of whole or part of
India.
Armed Rebellion was inserted through 44 th
Amendment Act, 1978 in the place of internal
disturbances.
This Proclamation can be revoked or varied by
President.
Actual occurrence of war, external
aggression or armed rebellion is not essential.
Instead, imminent danger or such an occurrence is
enough. The Proclamation can be issued by President
only when the Cabinet i.e. the Prime Minister & other
Ministers of Cabinet rank communicate the decision in
writing (unlike not merely on the advice of Prime
Minister as was done by Smt. Indira Gandhi in June,
1975) that the Proclamation should be laid before

each House of Parliament within 1 month, which

should be approved.
Contd54
-: 54 :If Lok Sabha is dissolved during this 1 month, Rajya
Sabha will approve it first and Lok Sabha will approve
within 30 days from the date of
re-assembly
after General Election.
The Resolution should be
passed by both the Houses by Special Majority and
such a Resolution is valid for 6 months from the date
of Proclamation.
For further continuance of emergency, Parliament
approval is required by Special Majority every 6
months.
If Lok Sabha is dissolved during this 6
months period, without approving further extension,
Rajya Sabha should approve it first and Lok Sabha will
approve within 30 days from the date of
reassembly after General Elections.
President revokes Proclamation, if Lok Sabha passes a
Disapproval Resolution by Simple Majority. For this
purpose, Lok Sabha can be convened if 1/10 th of the
total Members request for the Session. The Notice
should be given to the President, if the House is not in
Session and to the Speaker if the House is in Session.
The President or Speaker should convene the Session
within 14 days from the date of receipt of Notice.

(2) Constitutional
Emergency
Emergency or
Presidents Rule (Article-356)

or

State

Where the President is satisfied on the basis of the

report of the Governor or otherwise that a situation
has arisen in which the State Govt. cannot be carried
on in accordance with the provisions of the
Constitution, he may proclaim Presidents Rule for that
particular State for 6 months in the first instance. This
Proclamation should be approved by both the Houses
of Parliament within 2 months lest, it would expire. If
Lok Sabha is dissolved during these 2 months, Rajya

Sabha should approve it first and Lok Sabha will

approve within 1 month from the date of re-assembly
after General Elections. The approval of Proclamation
by Parliament is by Simple Majority. The validity of
6 months is calculated from the date of Proclamation.
Parliament can extend Presidents Rule through similar
Proclamation to be passed by simple majority upto 3
years.

Contd..55
-: 55 :However, the Proclamation of Presidents Rule cannot
be extended beyond 1 year unless following 2 conditions are
to be satisfied :
(i)

A Proclamation of National Emergency should be in

operation either in whole of India or whole of the
State or any part of the State.

(ii) Election Commission should certify that during the

period, it is difficult for them to hold elections to
the Assembly of the State under Presidents Rule.
Therefore, Presidents Rule cannot continue in any
State beyond 3 years unless :
(i) The Constitution is amended;
(ii) The ground of Presidents Rule is different from
the earlier one.

Consequences of Presidents Rule

(1) The Legislative Powers of the State will be exercised by
the Union Parliament i.e. Parliament is competent to
make Law on all State subjects with regard to that
particular State.
(2) Fundamental Rules are not suspended.

(3) Since the country has unified Judiciary, High Court

retains its Authority.
(4) The Executive Powers of the Union will extend to give in
directions to the State how it should be run.

In S.R. Bommai case

unanimously held :(1)

(1994),

Supreme

Court

Presidents Powers under Article-356 is subject to

Judicial Review.
(2)
Presidents Rule cannot be imposed without Written
Report of the Governor.
(3)
If a State Govt.

works

against

Secularism,

Presidents Rule can be imposed.

(4)
No whole-sale dismissal of opposition-ruled State
Governments, when a new Political Party comes to
power at the Centre.
Contd.56
-: 56 :(5)
Imposition of Presidents Rule and Dissolution of
State Assembly cannot be done together. The State
Assembly can be dissolved only after the approval of
such Proclamation by Parliament.
(6)
If Presidents Rule is imposed as political
consideration, the Court can order for restoration of the
dismissed State Assembly.
(7)
The Judiciary can compel the Union Government to
disclose the grounds and relevant material based on
which the Presidents Rule was imposed.

(3)

Financial Emergency (Article-360)

If the President is satisfied that a situation has arisen

whereby the Financial Stability or Credit of India or of
any part of its Territory is threatened, he may, by
Proclamation, impose Financial Emergency. Both the House
of parliament should approve the Proclamation within 2

months by Simple Majority.

The Proclamation can be

revoked or varied by the President by subsequent
Proclamation.
If Lok Sabha is dissolved during these 2
months, Rajya Sabha should approve it first and Lok Sabha
will approve within 1 month from the date of re-assembly
after General Election. There is no need for further

approval of Parliament
Finance Emergency.

for

the

continuance

of

Consequences/Effects of Financial Emergency

Executive Powers of the Union shall extend to give in
directions to any State to observe such Principles of financial
propriety as deemed necessary to maintain Financial
Stability & Credit. These directions may include a provision
for reduction of salary for a class of people or all classes of
people including Judges of High Court and also reservation of
Money Bills & Financial Bills passed by State Legislatures for
consideration of President.
This is the only emergency which has not been imposed
in our country so far because once it is imposed, our
capacity to repay will be in doubt and as a result of that no
country will give us any loan or financial assistance.
Contd57
-: 57 :-

Union Legislature
Rajya Sabha
(Original Strength 238 + 12 = 250, presently 233 +
12 = 245)
Rajya Sabha is the Council of States with the
representatives of the States. The Council has a maximum
strength of 250 (238 + 12) of whom 238 are the
representatives of the States and 12 are nominated
Members. At present, Rajya Sabha has 233 + 12 = 245
Members.

The Members are elected by the elected Members of

Legislative Assembly of all the States & Union Territories,
including Delhi & Pondicherry by a system of Proportional

Representation by Single Transferable Votes with

Open Ballot. President can nominate 12 Members chosen
from among the eminent persons having special knowledge
& experience in the fields of Literature, Art or Social Science.

The reservation of seats is given in Schedule-IV.

There is no reservation for Scheduled Castes/Scheduled
Tribes in Rajya Sabha.
Vice-President is Ex-Officio
Chairman of Rajya Sabha. Rajya Sabha will elect a Member
as Deputy Chairman.
When the Chairman (i.e. VicePresident) is acting as President, Deputy Chairman will
perform the functions of the Presiding Officer of Rajya
Sabha.

Qualifications : Should be an Indian Citizen, should have

completed 30 years of age, should be an Elector in any of the
Parliamentary Constituency in India and should not hold any
Office of Profit.
Holding an Office of President, VicePresident, Governor or Minister in Union or any State will not
be construed as Office of Profit. Nominated Members have
equal voting rights except, for the election of President.
Rajya Sabha is a Permanent Body with 1/3rd of its
Members retiring every 2 years making the term of the
Members 6 years except in the case of Casual Vacancies for
whom the term would be the balance or rest of the tenure.

Powers of Rajya Sabha - These can be groups under 3

Categories :(i) Equal Powers with Lok Sabha;
(ii) Unequal Powers with Lok Sabha;
(iii) Exclusive/Special Powers of Rajya Sabha.
Contd.58
-: 58 :(i)

Equal Powers : Rajya Sabha enjoys equal Powers

with regard to Non-Money Bills or Non-Constitutional
Amendment Bills. A Non-Money Bill can be delayed by
Rajya Sabha for 6 months. In the case of any dispute
between Lok Sabha and Rajya Sabha, Joint Session
can be convened to resolve the dispute. Even in Joint

Session, the will of Lok Sabha always prevails over

Rajya Sabha (Article-543 vis--vis Article-243).
(ii)

Unequal Powers : It has only an inferior position

in the case of Money Bills. Rajya Sabha cannot pass a
Money Bill. It can only recommend amendments and
those are not binding on the Lok Sabha and can also
be rejected. Rajya Sabha can delay a Money Bill only
for 14 days. On the 14th day, the Bill is deemed to
have been passed by both the Houses of Parliament.

(iii)

Special/Exclusive Powers :
(1)
Under Article-249, Rajya Sabha can pass a
Resolution by 2/3rd majority of the Members sitting
and voting, authorizing Parliament to make a Law
on a State subject in national interest.
This
Resolution is valid for 1 year and can be renewed
every year by passing similar Resolution by similar
majority.
(2)
Under-312, Rajya Sabha can pass a Resolution
by 2/3rd majority of the Members sitting and voting
declaring that it is desirable to create an All India
Service in national interest.
(3)
The election of Vice-President and removal of
Vice-President, Rajya Sabha plays a major role.
(4)
In the case of approval of emergencies, the
role of Rajya Sabha is crucial when Lok Sabha is in
a state of dissolution.

Existence of Rajya Sabha is so desirable for the

following reasons :
(1)
Senior Politicians and Statesmen can get access to
Parliament and also to Council of Ministers through
Rajya Sabha without undergoing the ordeal of
elections so that the country can utilize their
experience and service.
Contd59
-: 59 :-

(2) Rajya Sabha acts as a speed-breaker over Lok

Sabha being a popular House. Lok Sabha is always
tempted to act hurriedly to fulfill the public opinion
and wishes. In such cases, Rajya Sabha puts a break
so that Lok Sabha is given an opportunity to think it
again and reconsider the decision taken at the heat of
the moment.
(3) Rajya
Sabha
is
a
Federal
Chamber
with
representatives of the States which is mandatory for
Federal system of Constitution.

Lok Sabha

(Original Strength 530 (States) + 20 (UTs) = 550 &

presently 543 + 2 Anglo-Indians = 545)
Lok Sabha is a popular House directly elected by people.
Original strength is 550 of which 530 to be elected from the
States and 20 from Union Territories.
2 Anglo-Indian
Community Members are to be nominated by the President if
they have no adequate representation in the House.
At present, 543 elected Members including Speaker and
2 nominated Members from Anglo-Indian Community.

Qualifications : Citizenship, 25 years of age, Should be a

Voter in any of the Parliament Constituencies.
In addition, Representation of Peoples
prescribed the following disqualifications :(1)
(2)

(3)
(4)
(5)
(6)

Corrupt practices at election;

Conviction for an any offence

involving

Act

has

years

Imprisonment or more;
Failure to lodge an account of election expenses;
Having any interest/share in any of the Companies;
Dismissal from Govt. service for disloyalty or corruption;
Any conviction under Dowry Prohibition Act, Protection
of Civil Rights Act, Essential Commodities Act or Foreign
Exchange Maintenance Act (FEMA);

Contd60
-: 60 :-

In addition to the above, a person is disqualified from

being chosen a Member of Parliament or continuing as
Member of Parliament, if he suffers from the following
disqualifications :(1)
Unsound mind or insanity;
(2)
Un-discharged insolvent;
(3)
Not a Citizen of India or voluntarily acquired any
Foreign Citizenship or acknowledged any Foreign
Allegiance;
(4)

Disqualified under any Law of Parliament.

Following are the 5 situations where a Member

loses his seat :
(1)
(2)
(3)
(4)
(5)

If election is declared invalid;

Member disqualified under Article-102;
Anti-defection Law;
House expelling the Member;
Absence of a Member from the House for 60 days or
above.

Once an election is declared, the Court will not

intervene till the completion of election. An election can be
called in question only in the High Court. If the High Court
holds an election invalid, the person will cease to hold office.
If the Member is disqualified under Article-102, this
question is referred to President. He will take the advice of
the Election Commission and the advice of Election
Commission is binding on the President & the decision of
President is final.
Anti-defection Law proceedings are provided in
Schedule-X. Under this provision that a seat of a Member of
Parliament or State Legislature shall fall vacant on the
following occasions :(i) An MP/MLA gives up the Membership of his Party;
(ii) If he votes for or abstains from voting contrary to
Party Whip without permission & the offence has
not been condoned within 15 days;

Contd61
-: 61 :(iii) an independent Member joins any Political Party;
(iv) A nominated Member joining any Political Party
after 6 months.

The above penal provisions will not attract the

following :(i)

When 2 or more Parties decide to merge by 2/3rd

majority of the total strength of the Party in the
Legislature.

(ii) Resignation of Speaker or Deputy Speaker of Lok

Sabha or Deputy Chairman of Rajya Sabha from
Party Membership or joining another Party after the
term.
Anti-defection Law proceedings are conducted
under the Chairmanship of Speaker and the
proceedings are treated as internal proceedings of
the House and therefore, the validity of such
proceedings cannot be questioned in any Court of
Law and the decision of the Speaker is final.
The NDA Govt. brought 91st Amendment Act, 2004 by
which the provision of allowing 1/3rd of the Legislative Party
to split without attracting the penal provision of Antidefection Law has been deleted.

In addition, 91st Amendment Act also added the

following provisions :(i)

The Council of Ministers strength should not be more

than 15% of the Lower House.

(ii) A disqualified MP or MLA cannot be appointed as

Minister till the end of the term of such Membership
unless he gets elected to the House.

Similarly, it has also been provided that a disqualified

Legislator cannot hold any political or remunerative Post
unless he is re-elected.
In addition, the House has the prerogative to expel a
Member from the House (In 1977 Mrs. Indira Gandhi was
expelled from Lok Sabha for breach of privilege of the
House). Besides, an MP can be removed from the seat if he
has been absented himself for 60 days or more from the
sittings of the House.
Contd.62
-: 62 :-

Term of Lok Sabha

: 5 years from the date of its 1st

sitting. President can dissolve Lok Sabha at any time. This

cannot be questioned in any Court of Law. During National
Emergency, the term can be extended for a period not
exceeding 1 year at a time and not extending beyond 6
months after the expiry of National Emergency.

Offices of Lok Sabha :

Speaker & Deputy Speaker are

the Officers of Lok Sabha. Both are Members of the House.
Though they belong to a Political Parties, they may resign
their Membership from their respective Parties and their
resignation will not attract the provisions of Anti-defection
Law. This is to maintain the dignity and neutrality of their
Offices.
Speaker can resign by writing to Deputy Speaker and
Deputy Speaker to the Speaker. The Speaker is elected by
the Members of Lok Sabha. The election is direct by the
Members of the House by the majority of the then Members
of the House.
Speaker can be removed from Office by a Resolution
passed by the majority of the then Members of the House.
The Resolution should be moved after giving 14 days Notice.
When the discussion on his removal is on in the House, the
Speaker cannot preside over the sittings.
Speaker is the Chief Presiding Officer who maintains
dignity, decorum and discipline of the House.
He can
adjourn and re-summon the House. He allocates time for

difference kinds of Business. He interprets the Rules of

Procedures and provisions of the Constitution. He puts the
Resolutions to vote and announce the results. He admits the
Motion and Points of Order. He addresses the House on
important matters. He can adjourn the House in the absence
of Quorum. He allows Secret Sittings of the House.
He is the Head of Parliamentary Committees. He asks
the Govt. to supply information to the House. He prevents
unparliamentary and irrelevant expressions. He can name a
Member. He can suspend a Member. He can order his
Martials to remove a Member from the House. He admits
Privilege Motions.
Before arresting a Member, the
permission of Speaker is necessary when the House is in
Session.
He controls Parliamentary Secretariat and make
adequate arrangements for the security of MPs, Staff and
their Property. He can accept or reject the resignation of a
Member.
Contd.. 63
-: 63 :-

Speaker has the following Special Powers :(i)

He certifies a Bill after having been passed by the

House.
(ii) He decides whether a Bill is Money Bill or not.
(iii) He certifies a Money Bill and his Certificate is beyond
judicial scrutiny.
(iv) He presides over joint sittings.
(v) He is the Channel of communication

between

President and the House.

(vi) He nominates Members for Parliamentary Delegation.
(vii) He is the Ex-Officio Chairman of the Indian
Parliamentary Group.
(viii) He corrects Patent errors in a Bill after it has been
passed by the House.
(ix) He
makes
Obituary
References
and
delivers
Valedictory Address at the Concluding Session.
Speaker enjoys a Unique Position in the House that he
continues in the Office even after the Dissolution of the

House till the 1st meeting of the re-constituted House. His

decisions in the Anti-defection Law proceedings are final and
cannot be questioned in any Court of Law.
Whatever he says is an Order and has to be complied
with except on 2 occasions which are :(i)

When he participates in the dissolution on a matter

concerning his Constituency;

(ii) When a Motion for his removal is under discussion

in which case he will not preside over the sittings.
If the post of Speaker is vacant, his duties will be
performed by Deputy Speaker and if that post of Deputy
Speaker is also vacant, the duties will be performed by any
such Member as appointed by the President.
During the absence of Speaker from any sitting, the
Deputy Speaker will preside over the sittings. If he is also
absent, any such person as may be determined by the Rules
of Procedure of the House (Panel of Presiding Officers) and if
no such person is present, then any person as determined by
the House.
Contd.64
-: 64 :-

Privileges of Parliament or Powers of Union

Legislature (Article-105)
Subject to the provisions of the Constitution and subject
to the Rules of Procedure of the House, there shall be full
freedom of speech & expression within the four walls of
Parliament and also in the proceedings of the Parliamentary
Committees.
The freedom of speech & expression guaranteed to
every Citizen is subject to certain restrictions. Contrary to
this, the freedom of speech & expression enjoyed by the MPs
under Article-105 is totally investigated inside the
Parliament. No Member is liable to any proceeding in any
Court in respect of anything said or any vote for or vote
against given by him in the Parliament or in any Committee.

No person shall be liable in respect of any Publication of

any Report or Paper from Parliament proceedings.
This
freedom is available to all persons who have the right to
speak in Parliament and take part in Parliament proceedings.
Therefore, this Article gives absolute freedom & absolute
immunity from the Court for anything said within the House.
Outside the House, a Member is as good as any other Citizen
and liable for defamation for his defamatory Statements.
This freedom is subject to regulatory proceedings and
provisions of the Constitution.
Therefore, Article-121
prohibits any discussion in the House about the Conduct of a
Judge of either Supreme Court or High Court except upon a
Motion for his removal.
A Member cannot be arrested or imprisoned on Civil
Proceedings within 40 days before or after the Session of
Parliament. This privilege is against Civil Proceedings only
and not against Criminal Proceedings or Contempt of Court
or Contempt of Parliament.
An MP is exempted to serve as a Juror. Similarly, he
cannot be asked to attend as a Witness before the other
House or before any Committee of Parliament or State
Legislature without the permission of the House and his own
consent.

Collective Powers

- The House has the right to

receive immediate information of arrest, detention,
conviction, imprisonment and release of a Member.
Without the permission of the Speaker or Chairman, no
process of arrest or legal procedure can be initiated.
Contd.65
-: 65 :The House has the Powers to prohibit the disclosure of
the proceedings of Secret Sittings.
The House can exclude strangers from the House. In
addition, the House has the Power to punish any person
whether a Member or Non-Member for Contempt of
Parliament or Breach of Privilege (Mrs. Indira Gandhi
expelled by Lok Sabha in 1977).

Above all, Parliament has the right to regulate the

internal proceedings of the House and validity of such
proceedings cannot be questioned in any Court of Law.

How a Bill becomes an Act?

(1) An Act is a formal expression of Legislative Policy. The
Ministry should decide the need for an Act and Policy to
be implemented at the level of Joint Secretary and
above.
(2) First, the proposal is referred to Ministry of Law for its
advice on the competence of Parliament, feasibility and
desirability of the proposed Legislation. At this stage,
the advice will be general in nature.
(3) The advice of Ministry of Law is examined in the
Administrative Ministry and if the Law is still required,
the approval of the Minister In-charge of the
Administrative Ministry will be obtained.
(4) For all Legislative proposals, the approval of Cabinet is
required. Therefore, the Ministry (i) prepares a SelfContained Summary with a Cabinet Note, (ii) gets the
approval of the Minister, (iii) circulates the Note among
all the concerned Ministries including, Ministry of Law,
(iv) incorporates their comments, (v) gets the approval
of the Minister for the final Note and (vi) sends the Note
to Cabinet Secretariat.
(5) The Cabinet will give the approval after considering the
proposal either in the Cabinet Meeting or in the Cabinet
Committee or through Circulation.
(6) Now, the Administrative Ministry (i) prepares an Office
Memorandum with full Back-ground of the case & the
Cabinet decision and (ii) asks Ministry of law to draft the
Bill.
Contd.66
-: 66 :-

(7) Drafting of the Bill is very crucial, requiring close

coordination with Ministry of Law till a perfect Bill is
prepared.
(8) Minister In-charge of the Administrative Ministry will
now approve the Bill and also sign the Statement of
Objects & Reasons (SOR) prepared by the Ministry. SOR
is the Preamble of the Bill giving the purpose, objectives
and salient features of the proposal.
(9) Some Bills like, Money Bills, Finance Bills, Financial Bills,
Bill
for
creation
of
a
State,
etc.
require
recommendations of the President before the Bill being
introduced. Therefore, the Ministry (i) prepares a Selfcontained Note along with the decision of the Cabinet, a
Copy of the proposed Bill and Summary (ii) sends it to
the Cabinet Secretariat who sends the Note Presidents
Secretariat. Now, the President will give sanction in
File.
(10)
The fact of Presidents recommendation will be
communicated to the Secretary General of both Lok
Sabha and Rajya Sabha by the Minister.
(11)
The Bill should be accompanied by Financial
Memoranda, if expenditure is involved, explanation for
resorting to Ordinance, if the Bill is to replace the
Ordinance, Extend and Scope of delegated Legislation,
Copies of supportive documents (Resolution under
Article-249 & Article-312).
(12)
The Bill will now be sent to Ministry of Law for
onward transmission to Government of India Press for
printing.
(13)
The Proof copy received from the Press will be
checked by the Administrative Ministry and Ministry of
Law. The final copy will be sent to Secretary General of
the concerned House, after giving Print Order.

Procedure of passing a Bill Parliament

Money Bills can be introduced only in Lok Sabha and the rest
in either House. There are 3 stages that a Bill go through in
Parliament :-

(i)

1st Reading
Reading

(ii) 2nd Reading

(iii)

3rd

Contd.67
-: 67 :-

1st Reading :

On the day allotted, the Minister will move

the Motion requesting the permission of the House to
introduce the Bill.
If the permission is opposed, the
opposing Member will make a Statement and the Minister
will reply and after that the Motion will be put to vote. Full
discussion is allowed only if the Motion is opposed on the
ground of competence.
After the Bill is introduced, it will be published in the
Gazette Extra-Ordinary and its copies given to the Members
of both the Houses of Parliament. 1st reading ends here.

2nd Reading :

After its introduction, the Bill becomes the

property
of
the
Legislature.
Therefore,
the
Speaker/Chairman will refer the Bill to the departmentally
related Parliamentary Standing Committee which has the
Member from both the Houses. The Committee will examine
the Bill, takes evidence, expert advice and feed-back from
the Stake-holders and make proposals of amendment. The
Report of the Committee and its suggestions will be placed
on the Table of the House with a copy being sent to the
Ministry. The Ministry will examine the proposals and decide
on the merits of the proposals. In case the Ministry has
agreed to any proposal of amendment, a Notice for the
official amendments so desired should be given to the
Speaker/Chairman.
At the stage of 2nd Reading, the Minister will move the
Motion for taking-up the Bill for consideration. At this stage,
Statement of Objects and Reasons (SOR) will be discussed.
Then clause-by-clause discussion starts. After clause-byclause discussion, any amendments proposed by Private
Members will be taken up. After this is voted, Schedules,
Titles Table of Contents, Preamble, Enacting Formula, etc.
will be discussed and voted. 2nd Reading ends here.

3rd Reading :

At the stage of 3rd Reading, the discussion

is confined only to the arguments for and against the Bill.

Only verbal changes are allowed and finally the Minister will
move a Motion that the Bill be passed and the Bill will be put
to vote.
When the Bill is passed by one House, it is sent to the
other House and the same procedure will be followed in that
House. As far Money Bill, Rajya Sabha can delay only for 14
days after which the Bill is deemed to have been passed by
both the House of Parliament.
In the case of Ordinary Bill, both the Houses will enjoy
equal powers. It can be introduced in either House and sent
to the other House. The other House may pass the Bill as it
is or pass with amendments or reject or take no action at all.
Contd..68
-: 68 :If the other House passes the Bill in the same form, it is
sent to the President for his assent. If the other House
passes the Bill with amendments, it is sent back to the
House of origin for reconsideration. If the House of origin
agrees with the amendments, it is sent to the President for
his assent. Where the House of origin does not agree with
the amendments or where the Bill was rejected by the other
House or where the other House did not take any action for 6
months, there is a Special Procedure in Article-108 of the
Constitution for Joint Session to resolve the dispute over a
Non-Money Bill.
Joint Session will be notified by President on the advice
of Council of Ministers.
Speaker will preside over the
sittings of the Joint Session. If the Bill is passed by a
majority of total Members of both the Houses of Parliament
be present and voting, it is deemed to have been passed by
both the Houses and sent to the President for his assent.

Joint Sessions held in earlier occasions also to

pass (i) Dowry Prohibition Bill, 1960 (ii) Banking
Recruitment Bill, 1977 and (iii)
Prevention of
Terrorists Activities Act, 2002 (POTA).

Powers/Functions of Parliament

(1) Legislative Functions

(1)
Right to legislate (make Laws) is the inherent
powers of any Legislature. Therefore, under Article-246
of the Constitution, Parliament can legislate on all
subjects given in List-I of Schedule-VII which has 99
subjects including, Defence, Currency & Coinage,
Communication, Railways, External Affairs, Banking,
etc.
(2)
If can also legislate on all the concurrent subjects in
List-III of Schedule-VII which has 52 subjects like,
Insurance, Labour, Education, Economic Planning, etc.
Concurrent List is not found in any Federal Constitution.
On the concurrent subjects, both Union and State
Legislatures can make Laws. However, in case of any
clash, Union Law will prevail over State Law unless this
State Law was reserved for consideration by President
and has been assented by him.
Contd.69
-: 69 :Schedule-VII also has the State subjects in List-II which
has 61 subjects including, Police, Law & Order, Land, Health,
Sanitation, Agriculture, etc. On these subjects, any State
Legislatures can make Law and Parliament cannot.
Under Article-246 of the Constitution, Parliament can
make Law on all subjects including, State subjects with
regard to Union Territories because, Schedule-VII divides the
Powers only between Union and States.
Under Article-248, Parliament can make Law on all
residuary subjects i.e. the subjects which are not available in
any of the 3 Lists of Schedule-VII.

Parliament can make Law on State subjects under

the special circumstances listed below :(1) Under Article-249, Rajya Sabha passes a Resolution by
2/3rd majority of Members sitting and voting, authorizing

the Parliament to make a Law in national interest

Parliament gets the authority to make Law on the given
State subjects. This Resolution is valid for 1 year and
can be renewed every year.
(2) Under Article-252, when 2 or more State Legislatures
pass a Resolution, authorizing the Parliament to make a
Law on the State subjects, Parliament get the authority
to make a Law on the given subjects. The Law so make
can be adopted by other States also.
(3) Under National Emergency under Article-352, Parliament
can legislate on all subjects including, State subjects for
the entire country.
(4) Under Article-253, Parliament can make Law on all
subjects including, State subjects to implement any
Treaty, Agreement made with any country or to
implement a decision arrived at in any International
Conference.
(5) When Presidents Rule is imposed under Article-356 on
any State, Union Parliament can make Law on any
subjects including, State subjects with regard to that
particular State.
Contd70
-: 70 :-

(2) Executive Functions

Under Article-75 of the Constitution, the Union
Executives i.e. the Council of Ministers is collectively
responsible to Lok Sabha and it continues to remain in Office
only during the pleasure of Lok Sabha. In other words, the
moment the Lok Sabha withdraws its pleasure bypassing
No-Confidence Motion or Defeating Confidence Motion,
the Council of Ministers is to resign. The administrative
Policy of the Govt. is laid down by the Parliament and the
activities are controlled, monitored and disciplined by
Parliament. Parliament always keeps the Ministers on toes.
Like, No-Confidence Motions, Adjournment Motions, Calling
Attention Motions, Short-duration Discussions, Cut Motions,
Half-an-hour Discussions, Starred, Unstarred and Short-

Notice Questions & Zero-Hour Discussions keep the Ministers

alert. Comptroller and Auditor General audits on behalf of
Parliament.

(3) Financial Functions

Parliament has full control over finance. Not even a pie
can be withdrawn from Consolidated Fund of India without
the approval of Lok Sabha. Though the Budget is prepared
by Executives, the power to sanction money lies with
Parliament. The Finance Committee comprising of Public
Accounts Committee, Estimates Committee and Committee
on Public Undertakings function as Watch-dogs of public
finance.

(4) Miscellaneous Functions

Parliament elects President, Vice-President, Impeaches
and removes President, Vice-President, Judges of both
Supreme Court and High Courts, CAG, Chief Election
Commissioner
and
other
Constitutional
Authorities.
Parliament approves emergency and Lok Sabha disapproves
emergency. Parliament can create All India Services.

(5) Constituent Functions or Procedure to amend

Constitution
There are 3 types of Amendments;
Contd71
-: 71 :-

1st Type of Amendments are those which can be

effected by Simple Majority. These are not to be treated

as Amendments for the purpose of Article-368 even-though,
they amend the Constitution
E.g.: Creation of a new State, change of name of a State or
its territory or boundary, etc. In these cases, the Bill can
be introduced in either House. After having been passed
by one House by simple majority, this is referred to the

other House which also passes the Bill by simple

majority.
After passing by both the Houses, it is
presented to the President for his assent. After his
assent, the Bill becomes an Act and the Constitution
stands amended. Though for the purpose of Article-368,
it is not an Amendment.

2nd Type of Amendments are those which can be

effected by Special Majority namely, absolute Majority +
2/3rd of Members sitting & voting. All provisions of the
Constitution other than those mentioned in the 1 st Category
falls under this group.
In this case, the Bill can be
introduced in either House and should be passed by both the
Houses by Special Majority and after passing, it is presented
to President who shall give his assent.

3rd Type of Amendments are those which require, in

addition to passing of the Bill by both the Houses by Special

Majority + ratification by a Resolution passed by

Simple Majority not less than half of the States
Legislatures. The amendments of the following provisions
require such ratification and those are Federal Features of
the Constitution :
(i) Election of President;
(ii) Extend & Scope of

Executive

Powers

of

the

Union/State;
(iii) Provisions of Union & State Judiciary;
(iv) Distribution of Legislative Powers;
(v) Representation of States in Parliament;
(vi) Schedule-VII;
(vii) Article-368;
(viii) Setting up of High Courts in Union Territories.
After having been ratified by half of the States, the Bill
will be presented to Parliament who shall give his
assent.
Contd72
-: 72 :Supreme Court held that the Amendments Powers of the
Parliament include power to amend Article-1 and also to give
away National Territory to a Foreign State. 24 th Amendment

Act, 1921 clarifies that nothing in Article-13 shall apply to

any amendment made under this Article.
42nd Amendment Act made a new proviso as given below :
No amendment of the Constitution including, Part-III
made or purported to have been made whether before
or after 42nd Amendment Act, 1976 can be called in
question in any Court of Law on any ground. Supreme
Court nullified this clause in Minerva Mill Case.
Similarly, Supreme Court also nullified the following proviso
amended through 42nd Amendment Act :For removal of doubts, it is clarified that there is no
limitation in the Constituent Power of the Union to add,
delete or overhaul any part of the Constitution.

Union Judiciary
Independence of Judiciary
(1) Judges of Supreme Court though appointed by President
by an Executive Order, can be removed only after
following the procedure given in the Constitution.
(2) The salary, Allowances, Secretariat expenditures, etc. of
the Judges of Supreme Court are charged into
Consolidated Fund of India.
(3) During their term of Office, the salary, allowances and
conditions of service of Judges of Supreme Court cannot
be varied except during grave Financial Emergency.
(4) No discussion can take place either in Parliament or in
State Legislatures on the conduct of Judge of Supreme
Court except, upon a Motion for his removal.
Contd.73
-: 73 :(5) Supreme Court and High Courts have the Powers to
punish any person for Contempt of Court.

(6) Under Article-50, the State should take steps

separate Judiciary from Executives in public service.

to

(7) Parliament can only increase the Powers and Jurisdiction

of the Supreme Court and cannot curtail their Powers.
(8) As per the decision of the Supreme Court, the Executive
Powers to appoint the Judges of Supreme Court are very
limited now. The Executive is required to consult the
Chief Justice of India who will consult the other 3 Senior
Judges and the recommendation of Chief Justice is
binding on President.
(9) A Retired Judge of Supreme Court cannot undertake any
Practice after retirement in any Court in India.
(10)
The Appointment of the Officers and servants of the
Supreme Court are made by Chief Justice of India or by
his Nominees.

Composition of Supreme Court

(30 Judges + 1 CJI)
Supreme Court comprises of 30 Judges + one Chief
Justice of India.

Qualifications :

(1) Citizenship (2) Judges of High Court

High Courts for 5 years or more or (3) Advocates in one or
more High Courts for 10 years or (4) Eminent Jurists.

Appointment :

The Judges of Supreme Court are

appointed by President, in consultation with such other
Judges of Supreme Court & High Courts, as he deems fit.
However, while appointing other Judges, he shall always
consult Chief Justice of India and such other Judges of
Supreme Court & High Courts.
Contd74
-: 74 :-

In 1993, Supreme Court laid-down strict Guidelines for

appointment of Judges

(1)
The Appointment of Chief Justice of India is on the
basis of Seniority;
(2) The opinion of Chief Justice of India shall have a
Priority in the Selection of a Candidate; Before
recommending, the Chief Justice of India must consult
3
Senior-most
Colleagues.
The
unanimous
recommendation of Chief Justice of India is binding on
President.
Only exceptional cases and for strong
reasons, the names recommended by Chief Justice of
India can be ignored by President. The reasons can be
:
(i)
(ii)
(iii)
(iv)

Doubtful character of the Candidate.

Poor Health.
Unduly short tenure.
CJIs recommendation is not unanimous.

Term of Office :
A Judge of Supreme Court shall hold office until he
attains 65 years of age (going to be 68 years for which a
proposal is under consideration). The Judge can resign by
writing to President.
Revoking or withdrawing the
resignation is not possible if it becomes effective. However,
if he chooses to resign from a future date, it can be
withdrawn.

Removal of a Judge of Supreme Court

A Judge of the Supreme Court can be removed by a
Presidential Order for proved misbehavior or incapacity. The
Order can be made only after it has been addressed to both
the Houses of Parliament in the same Session and the
address must be passed by both the Houses by Special
Majority.

Judges Enquiry
Procedure :-

Act,

1968

provides

the

100 Members of Lok Sabhs or 50 Members of Rajya

Sabha should give a Notice to Speaker/Chairman who, on
receipt of the Notice, will examine the charges and appoint a
Committee comprising of :

(i) 1 Serving Judge of Supreme Court +

(ii) 1 Chief Justice of any High Court +
(iii) 1 Distinguished Jurist.
Contd75
-: 75 :The Committee will investigate into the charges to
decide the amount of guilt.
During investigation, the
accused Judge should be given reasonable opportunity of
being heard in person. If the charge is incapacity, it would
be referred to the Medical Board. The Committee will submit
its Report to the Speaker/Chairman.
On the basis of the said Report, if both the Houses of
Parliament pass a Resolution by Special Majority, stating
that the charges have been proved, then on the basis of the
said Resolution, President will issue the Order of removal of
the Judge of Supreme Court.
For the 1st time, a Judge of Supreme Court Justice
Ramaswamy was sought to be removed. In his case, 108
Members of Lok Sabha sponsored the Motion.
The
Committee consisted of Justice P.B. Sawant (Supreme Court
Judge) + Justice
P.D. Desai (Chief Justice of Bombay High
Court) + Justice O.P. Chinnappa Reddy (Retired Judge) as
Members. Parliament can act only if the Committee finds the
accused Judge guilty.
In the case of Justice Ramaswamy, the Committee held
that the charges are proved.
However, the Motion was
defeated in Lok Sabha because it could not get Absolute

Majority.

Appointment of Ad-hoc Judges

Chief Justice of India may, with the prior consent of
Parliament and in consultation with Chief Justice of the High
Court concerned, request in Writing the attendance of a High
Court Judge at the sitting of the Supreme Court as Ad-hoc
Judge. This High Court Judge should have been qualified to
be appointed as Judge of Supreme Court. Similarly, the Chief

Justice of India may, with the prior consent of President,

request any person who held the Office of Judge of Supreme
Court or Judge of High Court who was qualified to be
appointed as Judge of Supreme Court to sit and act as Judge
of Supreme Court provided he himself is willing.

Contd..76
-: 76 :-

Powers of Supreme Court

I. Original Jurisdiction
The Supreme Court of India has exclusive jurisdiction on
the matters of dispute between the Union & the States. It
can decide any dispute involving a Question of Law or
Question of Fact between Govt. of India & any other State or
Govt. of India & one or more States or the States inter-se.
7th Amendment Act, 1951 provided that the original
jurisdiction of the Supreme Court does not extend to any
dispute if it arises any other provisions of the Treaty or
Agreement which have been entered into before the
inception of the Constitution and which has been continued.
The original jurisdiction shall also not extend to any dispute
forbidden by the Constitution which are :
(i)

the matters referred to Finance Commission (Article280);

(ii) adjustment of certain expenses between Union & the
States (Article-290);
(iii) inter-State water disputes.
Besides, under Article-71, the dispute relating to the
Election of President and Vice-President shall be decided by
the Supreme Court alone. Therefore, this is also the original
jurisdiction. In addition, under Article-32, Supreme Court
has but not exclusive jurisdiction in the matters relating to
enforcement of Fundamental Rights by issue of Prerogative
Writs.
This is not exclusive because High Court under
Article-226 can also issue the Writs for enforcement of
Fundamental Rights.

II. Appellate Jurisdiction

Appellate
jurisdiction
covers
Civil,
Criminal
Constitutional cases already decided by High Courts.

&

1. Civil Cases : An appeal lies to the Supreme Court if

the High Court certified that the case involves a
substantial Question of Law of great importance
and that the question should be decided by the
Supreme Court.

2. Criminal Cases : The Supreme Court is not constituted

as a general Court of criminal appeal.
Instead only a limited criminal appellate
jurisdiction has been given to the Supreme
Court.
Contd77
-: 77 :Any criminal appeal lies to the Supreme Court in 2
ways :(i) without a Certificate of a High Court;
(ii) with a Certificate of a High Court.
An appeal lies before the Supreme Court without a
Certificate of High Court, if the High Court has, on
appeal reverse an Order of Acquittal of an accused
person and sentenced him to death or if the High
Court has withdrawn for final before itself any case
from any subordinate Court and awarded the
accused with death sentence. This jurisdiction has
been extended to the cases involving Life
Imprisonment and Rigorous Imprisonment for not
less than 10 years.
An appeal also lies to the Supreme Court if the High
Court certifies that it is fit case for appeal. The
High Court is required to giver this Certificate along
with the Judgment either suo-moto or otherwise.

3. Constitutional Cases : An appeal lies to the Supreme

Court if the High Court certifies that the case
involves a substantial Question of Law as to the
interpretation of the Constitution.

Special Leave Petition

Supreme Court may in its discretion grant Special Leave
to appeal form any Judgment or Decree or Determination or
Sentence or Order in any case or any matter passed by any
Court or Tribunal within the Territory of India. However, this
will not apply to any Judgment or Sentence or Order passed
by any Court or Tribunal constituted under any Law relating
to Armed Forces. This is a wide discretionary powers vested
with the Supreme Court. There is no exception except that
of Armed Forces. This power can be exercised only where
there is a flagrant violation of Principles of Natural Justice.
(i)

Under normal Appellate provision, an appeal can be

entertained by Supreme Court only against the final
Orders. But under Article-136, the word Order is not
qualified by the adjective Final.
Therefore, the
Supreme Court can allow Special Leave even from
interlocutory (interim) Orders too.
Contd78
-: 78 :-

(ii) Under Appellate jurisdiction, the appeal lies only

against the final Orders of the High Court whereas
under Article-136, Supreme Court can grant Special
Leave of appeal from any Court or any Tribunal
including any Subordinate Court.
(iii) Under appeal, the appeal lies only against the Judgment
or Decree of any Court or Tribunal whereas under
Article-136, the appeal can be against any matter or
case.

Court of Record (Article-129)

Article-129 makes the Supreme Court a Court of Record

i.e. a Court whose Records are admitted to be of evidentiary
value and they are not to be questioned when they are
produced before any Court. It is treated as Final Order
provided the facts are of identical/similar nature.
A Court of Record has the power to punish anybody for
its contempt. Even truth is not a defence for contempt of
Court cases. Mr. Kalyan Singh, the then Chief Minister of
Uttar Pradesh was punished for contempt of Court for his
failure to protect and prevent the construction of a Platform
in the disputed premises of Babri Masjid. He was awarded
one day imprisonment and a fine of Rs.2000.

III. Advisory Jurisdiction (Article-143)

If, at any time, it appears to the President that a
Question of Law or Question of Fact has arisen or likely to
arise and the question is of such nature and importance,
that it is expedient to take the opinion of the Supreme Court,
then he may refer it to Supreme Court for consideration.
The Supreme Court may, after such hearing, report its
opinion to the President.
Since only advice is asked, Supreme Court is not bound
to answer a reference made by the President. However,
Clause-2 of Article-143 provided that the Supreme Court is
bound to report to the President its opinion on matters
mentioned in the proviso to
Article-131 i.e. where the
Original Jurisdiction of Supreme Court does not extend. In
other words, matters referred to Finance Commission; interState water dispute; adjustment of expenses between Union
& States, etc. have been excluded from the Original
Jurisdiction of Supreme Court.

Contd79
-: 79 :Since President has asked only for advice, he is not
bound by the advice of the Supreme Court. Nevertheless,
such advice of the Supreme Court is binding on all
Subordinate Courts.

President has so far asked advice of the Supreme Court

on a number of issues including Kerala Education Bill, 1958,
Perubari Case, 1960, UP Assembly Case, 1965, Special Court
Case, 1979, Babri Masjid Case, 1993 & position of Election
Commission, 1995.

IV. Review Jurisdiction (Article-137)

The Supreme Court has the power to review its own decision
which is subject to :
(i) discovery of any new and important evidence;
(ii) mistake or error which is apparent on the phase of
the record or for any other reason.

Centre-State Relations
The relationship between the Centre & the States can be
:
(i)
(ii)
(iii)
(iv)

Legislative Relations;
Administrative Relations;
All India Services;
Grants-in-Aid.

I. Legislative Relations
This is divided into two-fold distribution
(a) Subject matters (Powers of Parliament);
(b) Territorial jurisdiction.

Territorial Jurisdiction :

Subject to the provisions of

the Constitution, Parliament can make Law for the whole
or part of India. It has jurisdiction not only cover the
subjects and their properties within India but also the
subjects and their properties situated in any part of the
World.
Contd.80
-: 80 :On the other hand, the State Legislatures can make Law
for the whole or part of the State. Unless, the territory of

the State is extended, a State-Law cannot be extended

beyond the Territorial jurisdiction of the State.

II. Administrative Relations

Article-355, 256, 257, 365 & 356, in sequence, govern
administrative relations.
Article-355 imposes a duty on the Union to protect the
States
against
external
aggression
and
internal
disturbances and also to ensure that the State is run as
per the provisions of the Constitution. By virtue of this
Article, Union watches the States and acts by sending
Para-military Forces whenever necessary.
Article-256 provides that the Executive Powers of the
State will be so exercised to ensure compliance of
Parliamentary Law and the Union is authorized to give
directions to ensure compliance of these provisions.
Supposing this provision is not there, execution of the
Central Law in the States could not be possible.
Article-257 reassures what is said in Article-256.
The
Executive Power of the States should be exercised in such
a way as not to impede (obstruct) or prejudice the
Executive Power of the Union in the States. For this
purpose, the Union can issue directions to the States how
the Executive Powers of the State should be exercised.
These powers are specific on matters relating to
construction and maintenance of means of communication
which are of military importance, protection of Railways,
means of communication, etc.
Above 3 provisions have been provided with teeth through
Article-365 which says that if any State Govt. fails to
comply with any direction given by the Union in exercise
of these Powers given in the Constitution, it is lawful for
the President to conclude that a situation has come in
which the State Govt. cannot be run in accordance with
the provisions of the Constitution and the President
holding that opinion, it would result in invoking Article356 to impose Presidents Rule in that State.

III. All India Services

Besides separate Services for Centre & State, Constitution

provides creation of All India Services which is common to
Union & the States to ensure better Centre-State relations,
inter-State coordination & faithful implementation of Policies
of Union.
Contd..81
-: 81 :All India Services are created by a Resolution passed by
Rajya Sabha by 2/3rd majority of its Members sitting and
voting, authorizing Parliament to create the said Service
under Article-312.

IV. Grants-in-Aid
Financial resources of the States are limited. Though,
they have to do a lot of work for social upliftment under the
Directive Principles.
To cope-up with even increasing
financial needs of the States, the Central Govt. provides
Grants-in-Aid for 2 purposes :(i)

As a means of control over the State because, the

Centre can always withhold the Grants of the States
who do not obey their directives;

(ii) To enhance Centre-State coordination & cooperation

resulting in implementation of Central Schemes in the
States.

Constitutional Dignitaries or Functionaries

1. Comptroller & Auditor General (Article-148)
It is an independent Constitutional Authority who controls
the financial system of the country both at the union and
State level.
This Office was created in 1919 on the
recommendation of Munford Reforms. Govt. of India Act,
1935 equated him with the Judge of Federal Court. Our
Constitution equated him with the Judge of Supreme Court.
In 1976, the responsibility of CAG for compilation of accounts
was given to Deptt. of Expenditure which now administers

the accounts through Integrated Financial Advisers in all the

Ministries.
CAG is appointed by the President and holds Office for 6
years or 65 years of age whichever is earlier. He is forbidden
to accept any employment after retirement. Though, Shri
Narahari Rao, Dr. Ashok Chandra & Shri T.N. Chaturvedi
accepted posts under the Union after retirement as CAG.
The Salary & Allowances and Secretariat expenses of CAG
are Charged into the Consolidated Fund of India and

these cannot be varied to his disadvantage during the

term of his office.

Contd.82
-: 82 :Though he is appointed by the President, he cannot be
removed by the President without following the procedure
given in the Constitution.
In other words, he can be
removed only for proved misbehavior or incapacity after
following the similar procedure stipulated for removal of a
Judge of Supreme Court.

Functions :
(1) To audit the accounts of Union Govt./ State Govts./Union
Territories
to
ensure
proper
expenditure
from
Consolidated Fund of India;
(2) To audit and report on the expenditure from
Contingency Fund and Public Fund of the Union & the
States;
(3) To audit and report all Trading, Manufacturing and Profit
& Loss Statement kept by the Departments under the
Union & the States.
(4) To audit and report of the Receipts & Expenditures of all
Bodies financed by the Union or a State Govt.
(5) CAG has access to all Books of Accounts with regard to
Receipts & Expenditure of the Union & the States.

Importance :

He is the Chief Auditor responsible for auditing all

expenditure from the revenue of the Union & the States
within and outside India. He is to ensure whether the money
shown as spent was legally available, whether the money
was spent for the purpose for which it was allocated by Lok
Sabha, whether the expenditure confirms the authority,
whether the expenditure was incurred for public purpose
and whether the subordinate authorities exercised their
powers as per the Rules provided in DFPR, 1978.
In brief, he not only ensures that the expenditure does
not exceed the sanctioned grant but also the authority,
sincerity and economy in spending the funds.

Contd..83
-: 83 :-

Deficiency :
Those CAG is Comptroller and Auditor General, he only
functions as Auditor General only after the expenditure is
incurred.
He has no control over issue of money from
Consolidated Fund of India because many Deptts. have been
authorized to draw money by issuing Cheques without any
authority from CAG who is involved only at the audit stage
i.e. after the damage is done.
Besides, the receipts from Income Tax, Wealth Tax,
Estate Duty, Excise Duty & Land Revenues have been
excluded from the scope of audit.

2. Election Commissioner (Article-324)

Article-324
provides
for
creation
of
Election
Commissioner to supervise, direct and control over holding
elections.
Election Commissioner is an independent
Constitutional Plural Body.
It is to have Chief Election
Commissioner (CEC) as Chairman & such other number of
Election Commissioners as the President determines.
In

October, 1989, 2 Election Commissioners were appointed to

cope- up with the additional work consequent upon the
reduction of voting age from 21 to 18 years. However, their
appointments were subsequently revoked.
In August, 193, again 2 Election Commissioners were
appointed. At present, the Election Commission has 1 Chief
Election
Commissioner
as
Chairman
&
2
Election
Commissioners as Members.
The
Salary
&
Allowances
of
CEC
&
Election
Commissioners are Charged into Consolidated Fund of
India. Their service conditions cannot be varied to their
disadvantage during their term of their offices. The CEC &
Election Commissioners hold their Office for 6 years or 65
years of age whichever is earlier.
Chief Election Commissioner can be removed only for
proved misbehavior or incapacity after following the similar
procedure stipulated for the removal of a Judge of Supreme
Court or High Courts. However, Election Commissioners can
be removed by the President on the recommendation of
Chief Election Commissioner. In other words, Parliament is
not involved in the process of his removal from office.

Contd..84
-: 84 :-

Functions of CEC:
(1)
Supervision, direction and control of all matters
pertaining to the elections of the President, VicePresident, Members of Parliament & MLAs;
(2)
Preparation and revision of Electoral Rolls for
General Elections of Parliament or State Legislatures;
(3)
To advise the President or Governor with regard to
the question of disqualification incurred by Members of
Parliament or State Legislatures;

(4)
Exemption of persons from disqualification imposed
by Judiciary;
(5)
Appointments of Election Officers for enquiry into
the disputes connected with election arrangements;
(6)
Settlement of
Election Symbols;

disputes

regarding

allocation

of

(7)
Allotment of Broadcast/Telecast Slots for election
broadcast too different Political Parties;
(8)

To determine Code of Conduct for Political Parties;

(9)
To arrange Staff from the Union & the State Govts.
for conducting elections;
(10) To review the Representation of Peoples Act &
introduce Electoral Reforms;
(11) To determine Territorial Areas of Constituencies
after Delimitation Commission Recommendations;
(12) To advise the President whether elections can be
held in a State which is under Presidents Rule.

Contd.85
-: 85 :-

3. Attorney-General (Article-61)
Attorney-General of India is a part of Union Executives.
He is the Chief Law Officer and Legal Adviser. He has the
right of audience in all the Courts in the Territory of India.
He represents India in International Court. It is the duty of
Attorney-General to advise Govt. of India upon all the legal
matters. He can participate in the discussion in either House
of Parliament or State Assemblies.
He should be qualified to be a Judge of Supreme Court.
However, while a distinguished Jurist can be appointed as a

Judge of Supreme Court, he cannot be appointed as

Attorney-General. His tenure is co-terminus with the Council
of Ministers.
Therefore, whenever there is a change of
incumbency in the Council of Ministers, he should resign. He
is not a Govt. servant and is not a whole-time
Counsel/Advocate for Govt. In other words, he can carry on
private practice but, he cannot plead against the
Government.

4. Chairman, Union Public Service Commission

(Article-315)
Article-315 provides for UPSC comprising at present a
Chairman and 9 Members appointed by the President. Half
of the Members should have held office in the Union or State
Governments.
Chairman & Members of UPSC can hold their Offices for
6 years or 65 years of age whichever is earlier. A Member is
not eligible for re-appointment.
However, he can be
appointed as Chairman.
Chairman or Member can be removed by the President
on the grounds of proved misbehavior or incapacity. They
can be removed only after the enquiry and recommendation
for removal by Supreme Court on a reference made by the
President.
Pending enquiry, President can suspend a
Member or Chairman. The Chairman or Member will be
guilty of misbehavior if he becomes interested in any Govt.
Contracts or Agreement or any monetary profit.
President can also remove the Members or Chairman by
an Order if he is adjudged as insolvent or engages himself in
any paid employment or if he is suffering from any mental or
physical inability.
Contd86
-: 86 :-

Functions

The jurisdiction of UPSC extends to the Union and

centrally administered areas.
If required by 2 or more
States, UPSC can assist them in operating Joint Recruitment
of Staff. Similarly, at the request of the Govt. of the State
and with the approval of the President, UPSC can serve any
other State. Parliament can also give additional functions to
UPSC. However, UPSC cannot, on its own, take additional
functions.
In addition to the above normal functions, UPSC has to
conduct examinations for recruitment to various services of
the Union Govt. either through written examinations or
through interviews or both. Such examinations are for All
India Services, Indian Civil Services, National Defence
Academy, SCRA, Indian Economic Service, Indian Statistical
Service, Indian Engineering Service, etc.
UPSC has to be consulted by the executives on all
matters relating to recruitment of Members to Civil Services
and also Civil Posts, Principles to be followed in making
appointments, promotion, transfers from one post to
another, suitability norms, Disciplinary matters including
Memorials & Petitions, grant of extra-ordinary Pension,
grant of financial assistance for legal proceedings, etc. The
advice of the UPSC is not binding on the executives.
However, where there is a difference of opinion between
UPSC and Disciplinary Authority, such cases are referred to
Deptt. of Personnel headed by the Prime Minister which has
also the Administrative Ministry for UPSC for decision.

Deficiency
Proviso to Article-321 dilutes the impact of UPSC. President
can make regulations, specifying the matter on which UPSC
consultation is not necessary. This proviso has been liberally
used rather misused by various Governments. As a result,
the following have been excluded from the purview of
UPSC :(1)
(2)

Reservation of appointments for SC/ST/OBC;

Chairman & Members of various Commissions &

Tribunals;
(3)
Appointment of Diplomats;
(4)
Appointments of majority of Group C & Group D
posts (90% of staff);

(5)

All temporary posts less than 1 year.

Contd87
-: 87 :-

However, the copies of the regulations so made by the

executives are to be placed on the Table of the House. This
is the only safeguard against possible misuse. In addition,
the instances where the executives did not follow the advice
of UPSC have to be incorporated in the Annual Report of
UPSC for being placed before both the Houses and the
Members of Parliament will have an opportunity to discuss
the issue of the reasons for not accepting the advice of
UPSC.

Special Status of Jammu & Kashmir (Article370)

Only 2 Articles of Indian Constitution apply to J&K,
Article-1 & Article-370. J&K is a unique State in the sense, it
has a separate Constitution and J&K citizens enjoy dual
citizenship namely J&K Citizenship & Indian Citizenship.
Article-370 provides a special status to J&K. This is
because of a commitment made by Govt. of India with the
erstwhile Rulers of J&K at the time of accession. Like India,
J&K was also under British control and got independence on
15th August, 1947. Soon thereafter, J&K was attacked by
Pakistan invaders supported by Pakistan Army. To save
himself from the attack, Maharaja Hari Singh decided to
accede to India and Instrument of Accession was signed on
26th October, 1947 and as a result, J&K became a part of
Indian Union. However, India accepted the accession subject
to the Ratification of the proposal by Constituent Assembly
of J&K. Still the Constituent approves the accession and
interim arrangement was made through Article-370.
The Legislative Authority of parliament over J&K was
confined only to those subjects included in the Instrument of
Accession i.e. External Affairs, Defence and Communication.
In June, 1952, there was an Agreement between Pt.
Jawaharlal Nehru & Sheikh Abdullah. This Agreement was
ratified by the Constituent Assembly of J&K in October, 1954.

As a result of this, the power of Union Parliament was

extended to all Union subjects.
In 1954, the Constituent Assembly of J&K abolished the
Rule of maharaja and approved the accession of J&K with
India. The Constitution of J&K is difference from Indian
Constitution in a large number of areas.

Contd..88
-: 88 :-

The important provisions of J&K Constitution are as

under :(1) J&K is an integral part of India; The Territory of the
State comprises of all the territories which were under
the Kindgom of Maharaja Hari Singh at the time of
independence.
(2) The State Legislature consists of Governor & 2 Houses
namely, Legislative Assembly and Legislative Council.
(3) Legislative Assembly consists of 100 Members and
Legislative Council consists of 36 Members.
(4) Out of 100 Members of the Legislative Assembly, 25
seats are reserved for Pakistan Occupied Kashmir + 2
Women Members nominated by Governor.
(5) High Court J&K comprises of 1 Chief Justice & 2 Judges.
Official language is Urdu but English continues as a Link
Language.
(6) All Executive & Legislative Powers of J&K will extend to
all matters except those on which Parliament of India
has Power to make Law for the State.
(7) All Residuary Subjects belong to the State in which if
the State is affected, Parliament cannot make any Law
without its consent.

(8) Directive Principles of J&K aims to establish Socialistic

Pattern of Society and Preventive Detention Law is not
applicable to J&K.
(9) Right to Property still remains only in J&K which means
only J&K citizens have the right to purchase a property
in J&K. This is because when British Govt. tried to settle
down Punjabi Muslims in J&K to control Pandit Sabha of
Hindus, Dr. Hari Singh, the then Hindu Ruler passed a
Law giving property right exclusively to the citizens of
J&K.
(10)
If Article-370 is to be deleted from the Constitution,
President has to promulgate a Regulation which will be
placed on the Table of the House. This Regulation can
be promulgated only on the recommendation of J&K
Constituent Assembly.

-oOo-