Features of Indian Constitution

• Topic 3 - Features of Indian Constitution

--Indian Constitution is unique in its contents
and spirit.
- Salient Features of Indian Constitution
- It have several salient features that distinguish
it from the constitution of other countries.
Salient features
• Lengthiest Constitution
• Parliamentary form of Government
• Rigidity and Flexibility
• Fundamental Rights
• DPSP – Directive Principles of State Policy
• Adult Suffrage
• An independent Judiciary – Judicial Review
• A Secular State
• Single Citizenship
• Fundamental Duties
• Three –tier System
1.Lengthiest Constitution:
- It is the lengthiest in the world.
- It is very comprehensive, elaborate and detailed
document
- Originally has preamble, 395 articles, 8 Schedules, 22
Parts
- Currently 2021- Around 448 Articles, 25 Parts and 12
Schedules.
• Four factors contributing to the size of
Constitution:
1. Geographical factors
2. Historical factors
3. Single constitution for both centre and state
4. Dominance of legal luminaries in the
Constituent Assembly
Constitution contains not only fundamental
principles of governance but also detailed
administrative provisions.
• 2. Parliamentary form of Government
- The Parliamentary system is also known as
‘Westminster’ model of government, responsible
government and cabinet government.
- Though it is based on UK model there are certain
fundamental difference in India.
- It is based on the principle of cooperation and co-
ordination between the legislative and executive
organ.
• Features of parliamentary form of government
is
- Presence of nominal and real executives
- Majority party rule
- Collective responsibility
- Leadership of the Prime Minister and so on
3. Rigidity and Flexibility
- Rigid – Special procedure for its amendment Eg:
American Constitution
- Flexible – Can be amended easily
Eg: British Constitution
- Indian Constitution – neither rigid nor flexible
- Art 368 – (i) Special Majority (2/3rd majority)
(ii) Special Majority + Ratification of
states
(iii) Simple Majority
4. Fundamental Rights :
- Part III – Six fundamental rights
1. Right to Equality – (Art 14 – 18)
2. Right to freedom (Articles 19-22)
3. Right against exploitation (Articles 23-24)
4. Right to freedom of religion (Articles 25-28)
5. Cultural and educational rights (Articles 29-30)
6. Right to Constitutional Remedies (Art 32) – Writ
Jurisdiction
Kinds of writs
• Habeas Corpus
• Mandamus
• Prohibition
• Certiorari
• Quo-Warranto
Justiciable in nature
Subjected to reasonable restrictions
Promoting the idea of political democracy
5. DPSP – Directive Principles of State Policy
- Part IV of the Indian Constitution (Art 36 – 51)
- Promoting the ideal of social and economic
democracy
- Establish the welfare state
- Dr.Ambedkar considered this as ‘novel
feature’ of the Indian Constitution.
6. Adult Suffrage
- Universal adult franchise is based on the
elections in India
- Citizens above 18 years can cast their vote
without any discrimination based on race, caste,
religion, sex, literacy etc
- Voting rights was reduced from 21 to 18 years in
1989 by 61st Constitutional Amendment Act
1988.
- Essence of democracy, upholds the principle of
equality and protects the interest of all.
7. An independent Judiciary – Judicial Review
- Hierarchy of courts – Supreme Court – High
Court and then subordinate courts
- Supreme Court is the guardian of Constitution
- Single court system in India
- USA – Federal laws enforced by federal
judiciary and state laws are enforced by state
judicary
- Independence is ensures through various
provisions of Indian Constitution such as
1. Appointment of judges
2. Tenure
3. Service conditions etc
• Separation of judiciary from executive is dealt
under Art 50
• Judicial Review
8. A Secular State
- Does not uphold any religion as official religion.
- Art 25- 28
- Preamble – secular was added, secure all its
citizen liberty of belief, faith and worship
- Art 14,,15,16, 29 and 30
- Constitution embodies the positive concept of
secularism – giving equal respect to all the
religions.
9. Single Citizenship
- USA – Dual Citizenship
- India – irrespective of state they are born enjoy
the same political and civil rights
10. Fundamental Duties
- inserted as PART IV A by 42nd Amendment Act,
1976 on the recommendation of swaran singh
committee.
- Reminder to the citizens that rights includes duties
as well.
• 11. Three tier system:
- Panchayat Raj system - 73rd and 74th
amendment act
- Gram Panchayat at the village level
- Panchayat Samiti at the block level and
- Zila Parishad at the district level.
 CITIZENSHIP (Article 5 to 11)
• Article 5 to 9 – determines who are the
Indians at the commencement of
Constitution.
• Article 10 – Continuance of such citizenship
• Article 11 – power of parliament to make law
regarding citizenship.
• Citizenship Act, 1955
• Citizens are people who enjoy all civil and
political rights.
• Nationality is a place of birth of a person
whereas
• Citizenship is his legal status in a country.
• Domicile - intention to reside forever in a
country is an essential element for domicile.
Article 5 :
• During the commencement of the Indian
Constitution, each person who has his or her
domicile in the territory of India and :
(a) who was born in the Indian territory; or
(b) either of whose parents was born in the
Indian territory; or
(c) An individual who has been ordinarily resident
in the Indian territory for at least 5 years
immediately preceding such commencement,
shall be a citizen of India.
 Article 6
• Migrants from Pakistan:
Due to Independence Act,1947, India was
partitioned into India and Pakistan, with effect
from 15-8-1947.
- A person migrated to India from Pakistan
became an Indian Citizen if he or either of his
parents or any of his grandparents was born in
undivided India and also fulfil any one of the
two conditions:
• Migrants from Pakistan before 19th July,1948 –
ordinary resident in India.
• Migrants from Pakistan to India on or after
19th July,1948 – he be the residents for not
less than 6 months preceding the date of his
application for registration.
 Article 7
Person who migrated to Pakistan from India
after march 1, 1947 , shall not be deemed to be
a citizen of India.
Provided nothing said above will apply to a
person if later he returned to India for
resettlement could become an Indian citizen.
 Article 8
Rights of Citizenship of Certain Persons of Indian Origin
Residing Outside India
- Any person who or either of whose parents or
grandparents were born in India as stated in the
Government of India Act 1955 and who is
residing ordinarily in any country outside India shall be
considered to be a citizen of India.
- If he has registered as a Citizen of India by an Indian
diplomatic or consular representative in that country on an
application made by him or her in the prescribed document
form to such diplomatic or consular representative,
whether before or after the commencement of the
Constitution.
• Article 9 - Voluntarily Acquiring Citizenship of
a Foreign State Not to be Citizens
• Article 10 – Every person are subjected to the
law created by the parliament
• Article 11 - Parliament to Regulate the Right of
Citizenship by Law
- Citizenship Act, 1955
- Citizenship Amendment Act, 2019
2019 Amendment:
• 2019 Amendment
• llegal migrants who are Hindus, Sikhs,
Buddhists, Jains, Parsis and Christians from
Afghanistan, Bangladesh and Pakistan, eligible
for citizenship.
• Period of naturalisation for such group of
persons from six years to five years.
INDIAN CONSTITUTION
Introduction to the Constitution of India and the Preamble

● Meaning of Constitution
● Importance of the Constitution of India
● Preamble to the Indian Constitution
● Features of the Preamble
 (i) Why do we need a written constitution?
(ii) What is the speciality of Indian Constitution?
(iii) Why Constitution is considered to be supreme in India?
What is a constitution?
It is the Supreme law of the land.
Set of rules for effective functioning and to create a orderly society
The constitution is something that sets the limits and boundaries of the governments' interaction and
powers.
The Constitution works as a means by which the government in the rule knows as to what extent they can
impose rules and regulations on the citizen of the country.
Constitutionalism - Constitutionalism’ means limited government or limitation on government.
Why do we need a written Constitution?
● Police state
● Welfare state - Protector and Provider – Social and Economic Well being of the
people.
● Most democratic country have written Constitution
● In a democratic country, the Constitution keeps a check on the excessive power of
the government.
● India is Multi -lingual, Multi-religious in nature, so to balance and protect the
interest of all and live in harmony/ peacefully.
What
— is the speciality of Indian Constitution?
Why Constitution is considered to be supreme in India?
1. Constitution is a basic document and it builds the degree of trust
and ensures coordination.
2. Provisions relating to different organs of government are present.
eg: legislative, executive, judiciary, TNPSC, UPSC, Election Commission etc
3. Concept of Separation of Powers
4. Regulate the relationship between Part III and Part IV of
Constitution.
Constitution

●
th
Came into force on 26 Jan, 1950 – 395 articles, 8
Schedules, 22 Parts
● How long it took to draft the Constitution? - 2 years, 11
months and 18 days.
● Currently 2021- Around 448 Articles, 25 Parts and 12
Schedules.
INDIAN CONSTITUTION
PREAMBLE TO THE CONSTITUTION OF INDIA
- is an introduction to the statute containing its essence.
- it embodies in a solemn form of all the ideals and
aspirations for which the country had struggled during the
British regime.
- “The Preamble to a Constitution embodies the
fundamental values and the philosophy, on which the
Constitution is based, and the aims and objectives, which
the founding fathers of the Constitution enjoined the polity
to strive to achieve”
How preamble was drafted?
● It was the remake of the first resolution on ‘Aims and Objects of the
Constitution’ which was moved on 13 December 1946 by Mr.Nehru and
adopted on 22nd Jan, 1947.
● Preamble - establish and promote and also aids the legal interpretation
of the Constitution where the language is found to be ambiguous.
● The importance and utility of the Preamble has been pointed out in
several decisions of the Supreme Court of India.
PREAMBLE TO THE CONSTITUTION OF INDIA
The preamble declares :
“We, the people of India having solemnly resolved to constitute
India into a Sovereign, Socialist Secular Democratic and Republic and
to secure its citizens:
Justice, Social, Economic and political;
Liberty of thought, expression, belief, faith and worship;
Equality of status and opportunity; and to promote among them all;
Fraternity assuring the dignity of the individual and the unity and the
integrity of the Nation.
In our Constituent Assembly this twenty- sixth day of November,
1949 do hereby, Adopt, Enact and Give to Ourselves this Constitution”
.
COMPONENTS
(a) Source of authority of the Constitution
(b) Nature of Indian State
(c) Objectives of Constitution
(d) Adoption of Constitution
Source of authority
● “We the people of India” – derives its authority from the people of
India
● Purnima Banerji – Part of Constituent assembly- Suggestions to
replace as “We on behalf of the people of India”.
● Dr. Ambedkar – As it embodies the desire of the people, which has
its roots, authority and sovereignty from the people.
● After assembly deliberations/ debate
NATURE OF INDIAN STATE
Sovereign, Socialist, Secular, Democratic and Republic in nature.
1.Sovereign
- supreme power , independent , absolute and uncontrolled – internally supreme and externally
free.
2. Socialist- added by 42nd Amendment Act,1976 – Socialist principles were present in Directive
Princilpe of State Policy
- aims at elimination of inequality in income, status and standards of life.
- India follows ‘Democratic Socialism” and not ‘Communistic Socialism”.
- Democratic Socialism’ that holds faith in a mixed economy where both private and public sectors
co-exist side by side.
3. Secular – added by 42nd Amendment Act,1976.
- Treating all the religions equally with respect.
- State does not recognize any religion.
- Art 25 to 28 of Indian Constitution – Religious freedom to practice, profess and propagate
religion of their choice.
4.Democratic –
- Demo means ‘PEOPLE’ , Cracy means ‘RULE’
- form of government which get its authority from the will of the people.
(a) Direct – Switzerland – Referendum, Initiative, Recall, Plebiscite
(b) Indirect - India
. 5. Republic – head of the state is not hereditary monarch.
- India has a elected head called the ‘President’.
OBJECTIVES

Justice – Social, Economic and Political

Liberty – of thought, expression, belief, faith and
worship.
Equality – of status and opportunity
Fraternity – assuring the dignity of individual and the
unity and integrity of the nation.
42
nd Amendment Act,1976 -:
1.Secular - S.R. Bommai v. Union of India , the
supreme court held that “secularism is the basic
feature of the Constitution.”
2.Socialist
3.Integrity
● Conclusion:
- Gives a brief idea about the makers of the Constitution
- Key to open the minds of the makers.
- The preamble does not grant any power to anyone but it gives the
structure on which the constitution stands.
INDIAN CONSTITUTION
 TOPIC 2

Sources of Constitution of India

Making of Constitution
● Indian constitution is the fundamental document that forms basis of Republic of India.
● Mahatma Gandhi and others suggested for need for a Constituent Assembly on the basis of adult suffrage.
● Its time consuming so, utilize the Provincial Assemblies, already constituted by election, as ‘elective bodies’ to
send suitable members to the Constituent Assembly.

Working of constitution
Objective resolution
Committees on constituent assembly – sub committees on Fundamental
Rights and Minorities.
Drafting committee
Enactment
Enforcement
Criticism
● 1. Working of Constitution:
- Constituent assembly first meeting was on Dec 9, 1946 – boycotted by
Muslim league demanding for separate State of Pakistan.
- Second meeting was on Dec 11, 1946 - Dr.Rajendra Prasad and
H.C.Mukerjee were elected as President and vice-president of the
Assembly respectively.
● 2. Objective Resolution:
- Introduced by Nehru as later became the preamble.
● 3. Committees of the Constituent Assembly:
- Major and Minor Committees
- Major Committee – Drafting Committee, Advisory Committee, Union
Powers committee etc
- Had sub committees on Fundamental Rights , Minorities, Tribal Areas etc
- Minor committee – Finance and staff committee, Hindi Translation
committee, Press gallery committee, House committee etc
4. Drafting of the Constitution
7 Members
1.Dr.Ambedkar
2.Gopalswamy Ayyangar
3.Alladi Krishnaswamy Ayyar
4.Dr. K.M.Munshi
5.Syed Mohammed Saadullah
6.T.T.Krishnamachari
7.N.Madhava Rau
Sources of Indian Constitution
● 1. The Government of India Act, 1935
● 2. British Constitution
● 3. US Constitution
● 4. Irish Constitution
● 5. Canadian Constitution
● 6. Australian Constitution
● 7. Weimar Constitution (Germany)
● 8. Soviet Constitution
● 9. French Constitution
● 10. South African Constitution
● 11. Japanese Constitution
HISTORY
● Regulating Act,1773 - Establishment of SC at Calcutta
● Charter Act , 1833 and 1853
● Government of India Act, 1858 - Governor General of India to Viceroy of
India
● Indian councils Act, 1861 and 1892 - Indian were associated in the law
making process, Initiated the process of decentralisation
● Morley - Minto reforms, 1909
- Communal Representation for Muslims - ‘Separate Electorate’
● Montague- Chelmsford reforms, 1919
- Demarcating and separating the central and provincial subjects
● Government of India Act, 1935
- Formation of Provincial Legislative Assemblies based on adult franchise.
- Creation of three list
- Separate electorate for depressed class, women
- Emergency Provisions
- Pubic Service Commission
- Judiciary
- Federal Scheme
USA:
- Fundamental Rights
- Judicial Review
- Impeachment of President
- Removal of Supreme Court and High Court Judges
- Preamble
- Independence of Judiciary
BRITISH:
- Writs – Right to Constitutional Remedies
- Parliamentary form of government
- Single Citizenship
- Parliamentary Privileges
- Rule of Law
IRELAND:
- DPSP
- Method of election of president
- Members nomination to Rajya Sabha
GERMANY:
- Emergency
- Amendment
USSR
- Fundamental duties
CANADA
- Federalism
● AUSTRALIA
- Concurrent List
- Freedom of Trade and Commerce
● FRANCE:
- Ideals of Liberty, Equality, Fraternity and Republic - Preamble
÷1
st draft – Feb, 1948.

÷ Eight months discussion – 2nd draft on Oct, 1948

● Draft constitution has been before the public for eight months.
Enactment :-
Final draft on Nov ,1948 and finally adopted on Nov 26,1949.
Criticism:-
1. Not a Sovereign body
3. Long time in making the constitution
4.Dominated by congress
5.Lawyer politician domination
6. Dominated by Hindus
Conclusion
● It is the origin of the state, the government, citizenship, rights, liberty &
justice. However, its is often criticized to not be original per se, because
many of its provisions are borrowed from other countries.
● Regardless of criticism, the constitution because of its borrowed
character, is like a bouquet with best flowers picked up from different
gardens.
● Different legal systems have evolved differently, giving rise to different
legal principles as fruit of evolution.
Fundamental Rights and Duties
 FUNDAMENTAL RIGHTS
• Part III of the Constitution of India
• Art 12- 35
Why are rights important in a society?
- The concept of human rights represents an
attempt to protect the individual from
oppression and injustice.
- Right to liberty is the very essence of a free
society and it must be safeguarded at all
times.
History:
- US - First modern Constitution to give
concrete shape to the concept of human
rights from its document Bill of Rights.
- UK – There is no formal declaration of
people’s Fundamental Rights in Britain. The
concept of Rule of Law prevails there, which
imposes a legal restraint on legislative and
executive power.
• India – The framers derived their inspiration
from US Bill of Rights.
- Part III is the Magna Carta of India.
What was the reason to incorporate
Fundamental Rights in the Constitution of India?
- Indian society is fragmented into may religious,
cultural and linguistic groups, and it is necessary
to give the people a sense of security and
confidence.
• FR in India apart from guaranteeing certain
basic civil rights and freedoms to all, also fulfil
the important function of giving a few
safeguards to minorities, protecting religious
freedom and cultural rights.
• It is a part of Basic structure of the
Constitution.
Classified into seven headings:
• Right to Equality (Art 14-18)
• Right to Freedom (Art 19-22)
• Right against exploitation (Art 23-24)
• Right to Freedom of Religion (Art 25-28)
• Cultural and Educational Rights (Art 29-30)
• Right to Property (Art 31)
• Right to Constitutional Remedies (Art 32)
 Art 12
• The term “State” has been defined.
• What is the need for knowing the definition?
It’s actions can be challenged if FR is violated.
• The “State” includes
1. Government and Parliament of India
2. Government and legislature of state
3. Local authorities
4. Other authorities
Within the territory of India or under the control of
the Government of India.
Local Authorities:
“Local authority shall mean a municipal
committee, district board, body of commissioner or
other authority legally entitled to or entrusted by
the government within the control or management
of a municipal or local fund”.
• Local governments includes municipal
corporation, district board, village panchayat etc
• The term “State” has been defined in a wider
sense so as to include all its agencies.
• All other authorities includes LIC,ONGC, SAIL
etc.
• According to Supreme Court, even a private
body or an agency working as an instrument
of the State falls within Art 12.
• They discharge the functions similar to
government.
 Art 13
• Art 13 (1) – Pre- Constitutional Law
• Art 13(2) – Post – Constitutional Law
• Art 13(3) – Definition of Law
• Art 13(3) -“law” includes any Ordinance,
order, bye-law, rule, regulation, notification,
custom or usage having in the territory of
India the force of law.
 Pre- Constitutional laws
• Art 13(1) -All laws in force in the territory of
India immediately before the commencement
of this Constitution, in so far as they are
inconsistent with the provisions of this Part,
shall, to the extent of such inconsistency, be
void.
- Eg: Before 1950, Indian Penal Code, 1908,
Indian Contracts Act, 1872 , Code of Civil
Procedure, 1908 etc
• Doctrine of Severability
• Doctrine of Eclipse
Eg: - In one case, The Prize Competitions Act of
1955 as it violated their fundamental right to carry
on any business, trade or profession.
- Definition of Competion under Section 2(d) not
only included the acts which were gambling in
nature but also acts which involved personal skills
of a person.
- The court declared Sec 2(d) as void.
• Art 13(2) -The State shall not make any law
which takes away or abridges the rights
conferred by this Part and any law made in
contravention of this clause shall, to the
extent of the contravention, be void.
Concept of Judicial Review:
- Power of Supreme Court and High Court to
declare the validity of law.
- It has an authority to declare it as
unconstitutional or invalid on the ground of
violation of FR.
• Power of Judicial Review in India Recently:
Eg: Triple Talaq Judgment
Adultry Judgment – Sec 497 of IPC
Right to Equality (Art 14- Art 18)
 Art 14
• Article 14 –
(i) Equality before law – English origin – Negative
concept – Because it promotes no
discrimination - based on A.V.Dicey’s Rule of
Law.
(ii) Equal protection of laws – US origin - Positive
concept – Reasonable classification is
permitted.
- Like should be treated alike- it denotes equality
of treatment in equal circumstances
• Exceptions:
- Article 361 – Special powers to the president and
governor.
- Armed forces – Military laws.
- Medical Practitioners – Medical council of India
- Ministers and executives are given wide
discretionary powers
- Foreign Sovereigns, Ambassadors, Diplomates
enjoy special previlege.
 Reasonable Classification
1. Geographical basis – each state may have
different laws.
2. Discrimination by state in its own favour – Eg:
Jallikattu
3. Taxation laws –
“Charging more for the theatres in metro cities is
valid under Article 14”
4. Special Courts and procedure – Article 246(2) –
parliament has power to establish special courts to
conduct trail for special offences.
 Art 15
The state shall not discriminate against
any citizen on grounds only of
(i)religion
(ii)Race
(iii)Caste
(iv)Sex
(v) place of birth or any of them.
Prohibition of discrimination in the places of –
access to shop, public restaurant , hotels
and place of public entertainment or
use of wells , tanks, bathing ghats, roads
and places of public resort.
Exception:
Art 15(3) the state shall make provisions Special provisions
made for women and children(Protective discrimination) –
Eg: Free education for children, Dowry Prohibition Act etc
Art 15 (4) the state shall make provisions Special provisions
for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled castes and
Scheduled Tribe. (inserted by 1st Amendment Act,1951) –
enabling provision
Art 15 (5) the state shall make provisions for the admission
to educational institutions including private educational
institution. ( inserted by 93rd Amendment Acct, 2005)
• Art 15 (6) the state shall make provisions for
the advancement of any economical weaker
section of citizens and shall make provisions
with regard to their admission in educational
institutions other than minority
institution.(maximum 10%) (103rd
Amendment,2019)
 Art 16
• Article 16 (1) – Equality of opportunity for all
citizens in matters of public employment.
• Article 16(2) – no discrimination based on
religion, race, caste, sex, descent, place of
birth, residence or any of them.
• Article 16(3) – Parliament can make any
special laws.
• Exceptions:
- Parliament can prescribe residence as a condition
for certain employment or appointment in a state
or union territory or local authority or other
authority.
- State can provide reservation for post of govt jobs
in favour of backward class of citizens who are
not adequately represented in the state services.
- State can provide reservation for post of govt jobs
in favour of Scheduled Caste and Scheduled Tribe.
- The State shall make provisions for reservation
of appointments in favour of any economically
weaker section of citizens other than those
mentioned above subject to maximum of 10% of
the post. (added by 103rd Amendment Act,
2019)
• Two questions:
1. Who is socially and educationally backward
classes?
2. What is the limit of reservation?
 Judicial decisions
• Balaji vs State of Mysore (AIR 1960 Mys 338) -
Caste alone cannot be the sole test to
ascertain the backwardness.
• Preeti Sagar Srivastava vs State of Madhya
Pradesh (AIR 1999 SC 2894) - With 4:1 the
court held that , merit alone can be the
criterion for selecting students to the courses
especially in medical and engineering.
• Periakaruppan vs State of Tamilnadu (AIR 1971
SC 2303)
Held, that classification of backward
classes on the basis of castes is accepted but
the government should not proceed on the basis
that once it is backward it will be backward
classes forever. The it would defeat the very
purpose of reservation.
• Reservation : (Mandal Commission Case)
• Indra Sawhney vs Union of India (AIR 1993 SC 477)
9 judges in the ratio of 6: 3 –
Held, Carry forward rule as valid but permitted only in exceptional
situations.
- The maximum percentage of reservation can be 50% only.
- Creamy layer (members of a backward class who are highly
advanced socially as well as economically and educationally) was
introduced in the category of Backward Classes but subjected to
restriction.
- 10% reservation for economical weaker class was struck down.
- No reservation for promotion.
• Mukesh Kumar vs The State Of Uttarakhand (7
February, 2020)
• The present judgment made a settled law that the
state government cannot be directed to provide
reservations for appointment in public posts, and is not
bound to make reservations for SCs and STs in matters
of promotions.
• Thus, an individual cannot claim reservation, as his
fundamental right. And, it is the discretion of the state
government to decide whether reservations are
required in appointments and promotions.
 Art 17
• ABOLITION OF UNTOUCHABILITY :
ii. Firstly, it announces that ‘untouchability’ is
abolished and its practice in any form is forbidden
ii. Secondly, it declares that the enforcement of any
disability arising out of ‘untouchability’ shall be an
offence punishable in accordance with law
Legislations:
1. Untouchability (Offences) Act
2. ‘Protection of Civil Rights Act, 1955
• Following actions are offences:
1. Preventing any person from entering any
place of public worship
2. Denying access to any shop, restaurant,
public entertainment etc
3. Insulting any person belonging to SC and ST
4. Refusing to admit persons in hospitals,
educational institutions etc
 Article 18
• Abolition of Titles
- No citizen of India shall accept any title from
any foreign State
- No person who is not a citizen of India shall,
while he holds any office of profit or trust
under the State, accept without the consent
of the President any title from any foreign
State
• Titles such as Maharaja, Dewan, Bahadur etc
are prohibited under Art 18
• Whereas, it permits awards such as Bharat
Ratna, Padma Bhushan, Padma Vibhusan,
Padma Sri etc
 Art 19
• It has six freedoms whereas originally it had
seven freedoms.
• All citizens shall have the right ----
• Article 19(1) (a) – to freedom of speech and
expression
• Article 19(1) (b) –to assemble peaceably and
without arms;
• Article 19(1) (c ) - to form associations or unions;
• Article 19(1) (d) - to move freely throughout the
territory of India;
• Article 19 (1) (e) - to reside and settle in any
part of the territory of India;
• Article 19 (1) (f) - omitted by 44th Amendment
act. (it was right to acquire, hold and dispose
of property).
• Article 19 (1) (g) - to practice any profession,
or to carry on any occupation, trade or
business.
• Freedom of speech and expression is not
absolute.
• It is subjected to restrictions.
• Article 19 (1) (a) – Article 19 (2)
• Article 19(1) (b) – Article 19 (3)
• Article 19(1) (c ) – Article 19 (4)
• Article 19 (1) (d) ,(e) – Article 19(5)
• Article 19 (1) (g) – Article 19 (6)
• Expression is a matter of liberty and right. The
liberty of thought and right to know are the
sources of expression.
• Freedom of expression is more essential in a
democratic setup of State where people are
the Sovereign rulers
• Effective participation of the people in the
Government
• Full fledged development of Personality
• Democratic Value
• To ensure Pluralism
• Freedom of Expression is among the foremost of
human rights. It is the communication and practical
application of individual freedom of thought.
• Highest of all liberty in India
• Article 19 has three implied Rights:
(i) Right to Silence
(ii) Right to receive information/ Right to know
(iii) Freedom of press
• Right to Silence
• Bijoe Emmanuel v. State of Kerala 1986 3 SC
615
• Right to Information Act, 2005
• Non- disclosure of information under RTI Act
is permitted according to Sec 8, 9 and 11.
• Restrictions – third party information cannot
be disclosed.
 Freedom of press: (Implied right)
• - Media has same rights like an individual to write,
publish, circulate or broadcast.
- Why India does not have Freedom of Press
expressly as it is present in US constitution?
• Dr.B.R.Ambedkar ,Chairman of Constituent Assembly
• “The press is merely another way of stating an
individual or a citizen. The press has no special rights
which are to be given or which are not to be exercised
by the citizen in his individual capacity.”
• “One did directly what the other did indirectly”.
 Freedom of Speech and Expression
• Article 19 (1) (a) and Article 19 (2)
• Freedom of Speech and Expression – Article 19(1)(a) is not absolute.
• It has the restrictions under Article 19(2)
The 8 restrictions were:
1. Security of the state
2. Friendly relations with foreign states
3. Public Order
4. Decency or morality
5.Contempt of Court
6. Defamation
7. Incitement to offence
8. Sovereignty and integrity of India – inserted by 16th Amendment Act, 1963.
 Article 19 (b) – (g)
• Article 19(b) – not absolute subjected to restriction
under Article 19(3).
• Right to assemble peaceably and without arms –
Conduct public meetings, demonstrations and take out
precessions.
• Restrictions -
• 1. Sovereignty and integrity of India (16th
Amendment,1963)
• 2. Public order
• 3. Reasonable restriction – Sec 144 of CrPC –
Magistrate can restrain , Sec 141 IPC , Unlawful
Activities (prevention) Act, 1967.
• Article 19(1)(c ) – freedom to form association
or unions or co-operative societies.
• Restriction: Article 19(4)
• 1.Public Order
• 2. Morality
• 3. Sovereignty and integrity
• Article 19(1) (d) and (e) – Freedom of
movement, to reside and settle in any part pf
India.
• Restriction: Article 19 (5)
• 1. In the interest of general public
• 2. Protection of interest of ST
• Article 19(1) (g) – Freedom to practise any profession, to carry
on any occupation, trade or business.
• Restrictions: Article 19 (6)
• 1. interest of general public
• 2. reasonable restriction - state can make laws relating to
-Professional or technical qualification necessary for
practising any profession.
Eg: Street Hawkers , lotteries , Ban on pan masala or gutkha,
Liquor Ban, Gambling.
Bombay hawkers Union vs Bombay Municipal Corporation( AIR
1985 SC 1206)
 Case laws
• Kedarnath vs State of Bihar – Sec 124 A of IPC
• Shreya Singal vs Union of India – Sec 66 A of IT Act
• Anuradha Bhasin vs Union of India (2020) – Ban on use of interenet.
• Issues Raised
Issue 1:
Whether the freedom of speech and expression and freedom to practise
any profession, or to carry on any occupation, trade or business over the
Internet is a part of the fundamental rights under Part III of the
Constitution?

Issue 2:
Whether the freedom of the press was violated due to the restrictions?
• Held:
• Right to freedom of speech and expression under Article 19(1)(a), and the
right to carry on any trade or business under 19(1)(g), using the medium
of internet is constitutionally protected”.
• The freedom of press was not restricted as the circulation was permitted.

• Foundation of Media Professional vs Union Territory of Jammu and

Kashmir (2020) – relaxation in use of internet during covid
 Article 20
• 20(1) – Protection against Ex post facto laws
• 20(2) – Protection against Double Jeopardy
• 20(3) – Protection against self – incrimination
Ex post facto laws: (Article 20(1))
No person shall be convicted of any
offence except for the violation of law in force
at the time of commission of the act , nor be
subjected to a penalty greater than that which
might have been under the law in force.
• Kedarnath vs State of West Bengal(AIR 1953 SC 404)
- committed an offence in 1947 – fine and
imprisonment was imposed.
- amended in 1949 – enhanced the punishment(fine
amount).
- Held, enhancement does not apply to the this case.
• Rathanlal vs State of Punjab(AIR 1965 SC 444)
- Boy was convicted for trespass and outraging the
modesty of a girl of 7 years.
 - convicted for 6 months rigorous
imprisonment and fine.
- later, Probation of Offenders Act, 1958 was
passed.
- it provided that person below 21 years
should not ordinarily be sentenced to
imprisonment
• Held, the rule of beneficial interpretation is
applied and court reduced the punishment.
 Article 20(2) - Double Jeopardy
• “Nemo debet vis vexari” means “ No man should be
put twice in peril for the same offence”
• Maqbool Hussain vs State of Bombay
- Gold brought by appellant will be confiscated by
customs officers under Sea Customs Act.
- later , he will be charged under FERA(Foreign
Exchange Regulation Act).
- the appellant invoked Art 20(2) and approached the
court.
- Held, Customs authority is not judicial in nature, so
Art 20 (2) does not apply .
 Venkataraman v. Union of India
- the appellant was dismissed from service based
on the inquiry under Public Service Enquiry
Act,1960.
- later, he was charged under IPC and Prevention
of Corruption Act.
- he challenged before the court and said it is
violative of Art 20 (2).
- Held, disciplinary action and prosecution under
Prevention of Corruption Act is different so, Art
20(2) does not apply.
 Article 20(3) - Protection against self -
incrimination
• Article 20(3) provides that no person shall be compelled to
be a witness against himself.
• It does not apply for - confession statement voluntarily
given in the court.
• The protection under this Article is applicable only if it is
under compulsion to give evidence.
• State of Bombay vs. Kathi Kalu oghad, AIR 1961 SC 1808
• The Court held that it is on the prosecution to find out
whether the accused gave the information voluntarily or
compulsorily. The Court made it clear that Section 27 of the
Evidence Act is not violative of Article 20(3).
 Nandhini Satpathi vs PL Dani
• This case is one of the most popularly cited cases when it
comes to self-incrimination and right to be silent.
• Nandini Satpathy – former Chief Minister of Orissa – against
whom a case had been registered under the Prevention of
Corruption Act, was asked to appear before the Deputy
Superintendent of Police [Vigilance] for questioning.
• The police wanted to interrogate her by giving her a string
of questions in writing. She refused to answer the
questionnaire, on the grounds that it was a violation of her
fundamental right against self-incrimination. She was
booked under sec 179 of IPC.
• Issue:
Whether Nandini Satpathy had a right to silence
and whether people can refuse to answer questions
during investigation that would point towards their
guilt?
Held:
The Supreme Court affirmed that the accused
has a right to silence during interrogation if the
answer exposes her/him into admitting guilt in
either the case under investigation or in any other
offence.
• An accused person cannot be coerced or
influenced into giving a statement pointing to
her/his guilt.
• An essential element of a fair trial is that the
accused cannot be forced to give evidence
against her/himself.
• Forcing suspects to sign statements admitting
their guilt violates the constitutional
guarantee against self incrimination
 Is the following ways legally valid?
• Shock Treatments?
• Narco –Analysis Test?
• Brain Mapping?
• Lie detector Test?
Narco-analysis, brain mapping and lie detector tests
against the will of the accused would be violative of
Article 20 (3) of the Constitution.
In India, the Narco-analysis test is done by a team
comprising of an anesthesiologist, a psychiatrist, a
clinical/ forensic psychologist, an audio-videographer, and
supporting nursing staff.
• In India, Narco-analysis was
• First used in 2002 in the Godhra carnage case.
• Famous Arun Bhatt kidnapping case in Gujarat
• Telgi stamp paper scam
• Nithari village (Noida) serial killings.
• Selvi v. State of Karnataka
• Held the use of Narco-analysis, brain-mapping and polygraph tests
on accused, suspects and witnesses without their consent as
unconstitutional and violation of the ‘right to privacy'.
• The judges said:
• “The compulsory administration of the impugned techniques
violates the right against self-incrimination. The test results cannot
be admitted in evidence if they have been obtained through the
use of compulsion. Article 20 (3) of the Constitution protects an
individual's choice between speaking and remaining silent,
irrespective of whether the subsequent testimony proves to be
inculpatory or exculpatory.
Article 21 of the Constitution of India
provides:
• “No person shall be deprived of his life or
personal liberty except according to procedure
established by law.”
• Right to life and personal liberty is an essential
part of human life.
• Right to life has been considered as the most
fundamental of all human rights.
• “Right to life‟ under Article 21 of the Indian
Constitution is supreme amongst all fundamental
rights, enshrined in Part III of the Constitution of
India
• The Indian judiciary widely interpreted and gave
progressive meanings to the words of “life‟,
“personal liberty‟, and “procedure established by
law” for protecting individuals fundamental
rights.
• Liberal interpretation of right to life and personal
liberty let to the creation of new sub rights .
• Right to life is not an absolute right. State can
impose reasonable restrictions by adopting some
procedure.
• The expression “procedure established by
law” in Article 21 does not mean any
arbitrary law rather it should be reasonable,
fair and just.
 Interpretation to the term “Life”
• In Kharak Singh v State of UP and Sunil Batra
v Delhi Administration , SC upheld the view of
US decision.
• The Supreme Court of India in Francis Coralie
Mullin v Union Territory of Delhi (AIR 1981 SC
746) observed Right to life includes the right
to live with human dignity.
 Interpretation to the term “Personal
Liberty”
• A.K. Gopalan v State of Madras(AIR 1950 SC 27) , the Court
refused to accept the liberal interpretation of Constitutional
provisions.
• The Court gave a narrow construction to words such as “personal
liberty‟ and “procedure established by law” used in Article 21 of
the Constitution.
• Issues:
1. Whether Preventive Detention Act 1950 is in violation of Article
19 and 21 of the Constitution?
2. Whether ‘procedure established by law’ under Article 21 of the
Indian Constitution is same as ‘due process of law’ under US
Constitution?
3. Whether is there any relation between Article 19 and 21 of the
Constitution or they are independent in nature?
• Held that the ‘personal liberty’ which is
enumerated under Article 21 of the
Constitution means nothing more than the
liberty of the physical body, that is freedom
from arrest and detention without the
authority of law.
• In Kharak Singh v State of UP, the Supreme
Court of India refused to accept the
narrowest interpretation of the term
“personal liberty‟.
• The court held that the term “personal
liberty‟ under Article 21 of the Indian
Constitution included not only mere freedom
from physical restraint but all other aspects of
liberty.
 Maneka Gandhi v Union of India
• A major breakthrough came in Maneka
Gandhi v Union of India(AIR 1978 SC 597)
• In this case, the action of impounding Maneka
Gandhi‟s passport was challenged on the
ground that it violated her personal liberty.
The authorities did not provide her any
hearing before impounding her passport.
Issues before the Court:
● Are the provisions under Articles 21, 14 and 19 are anyway
connected or they are mutually exclusive??
● Whether Section 10(3)(c) of Passport Act 1967 is a
violation of Article 14 and Article 19 of Constitution??
● Whether the power of passport authority to impound or
revoke any individual’s passport is arbitrary??
● Is “Right to travel abroad” included in Article 21 of the
constitution??
● What is the scope of “procedure established by law” given
in Article 21 of the constitution??
● Whether the word ” law” in Article 21 of the constitution
can also be read as rules of natural justice??
 Judgment
• The Supreme Court not only broadened the meaning
of the words “personal liberty” , but also adopted
the concept of procedural due process within the
words “procedure established by law”.
• Art 21, 14 and 19 has a nexus established between
these articles.
• Interest of sovereignty and integrity of the state” is
not at all vague and wrong under Passport Act so
thus rejected issue 2.
• The Court held that personal liberty includes a variety of
rights among which one such right is the right to go abroad.
• The court said that the “law” in Article 21 does not only mean
enacted law but also refers to rules and principles of natural
justice.
• Any law prescribed under ” procedure established by law”
should be just, fair and reasonable. According to Justice
Bhagwati ” The procedure cannot be arbitrary, unfair or
unreasonable”.
 Impact
• Justice Krishna Iyer said, ” The spirit of a man
is the root of Article 21. Personal liberty makes
for the worth of the human person”.
• The “Golden Triangle Test” was introduced by
the court that any law which is depriving a
person’s liberty must not only answer Article
21 but meet also the requirements of Article
14 and Article 19 of the Indian constitution.
 Sub - Rights
• The decision of Maneka Gandhi v Union of India inspired the later
decisions and made the courts realized to adopt new vistas of
personal freedoms like
• (i) Right to privacy
• (ii) Right to education
• (iii) Right to Die
• (iv) Right to speedy trial
• (v) Right to bail, Right to appeal
• (vi) Right to humane treatment inside prison
• (vii) Right against torture
• (viii) Right to live with basic human dignity
• (ix) Right to compensation to the victims
• (x) Right to clean and healthy environment etc
 Article 21A
• The Constitution (Eighty-sixth Amendment)
Act, 2002 inserted Article 21-A in the
Constitution of India to provide free and
compulsory education of all children in the
age group of six to fourteen years as a
Fundamental Right.
• The Right of Children to Free and Compulsory
Education (RTE) Act, 2009 was introduced and
enforced on 1 April 2010.
• Education gives a person human dignity. The
framers of the Constitution realising the
importance of education have imposed a duty on
the state under Art 45 as one of the directive
policy.
• Article 45 - “The State shall endeavour to provide,
within a period of ten years from the
commencement of this Constitution, for free and
compulsory education for all children until they
complete the age of fourteen years”.
 Judicial Decisions
• The object was to abolish illiteracy from the
country.
• 86th Amendment, 2002 also inserted Article
51 A(k) as a fundamental duty.
• Mohini Jain vs State of Karnataka (AIR 1992 SC
1858)
• Unnikrishnan vs State of AP (1993) 1 SC 645
 Judicial Decisions
• Mohini Jain vs State of Karnataka (AIR 1992 SC
1858)
- the matter was raised by the petitioners that
whether the right of education is a fundamental right
under Article 21 of the Constitution?
- the petitioner was Miss Mohini Jain who was
denied admission because of high capitation fee.
- Held, charging capitation fee is illegal and right to
education flows from Article 21.
• Unnikrishnan vs State of AP (1993) 1 SC 645
The court did not agree with the decision
of Mohini Jain that children of all ages have the
right to education but held that the right to
education is free and compulsory between the
age group of 6 to 14 years.
-This led to the creation of 86th Amendment
Act,2002.
• Protection against arrest & detention
• Article 22 of Indian Constitution
• Arrest brings humiliation
• Arrest curtails the freedom of individual
• Arrest involves restriction of personal liberty of a person
arrested and as such violates the basic human rights of liberty
• Though the Constitution of India as well as international
covenants recognize the power of the state to arrest any
person as a part of its major role in maintaining the law and
order problem, the Constitution of India mandates that “No
person shall be deprived of his life or personal liberty except
according to procedure established by law.”
 Article 22
• Article 22 safeguards the rights of individuals who have
been arrested and detained for committing an offence.
• Article 22 has contain 7 sub clauses:
• First part – Rights of an arrested person
• Second part – Protection to persons arrested under
preventive detention laws
• (1) No person who is arrested shall be
detained in custody without being
informed, as soon as may be, of the
grounds for such arrest nor shall he be
denied the right to consult, and to be
defended by, a legal practitioner of his
choice.
• i) Right To Be Informed Grounds Of Arrest
• (ii) Right To Legal Assistance
• (iii)Right To Be Produced Before The
Magistrate Within 24 Hours
• Art. 22 (3) & (4) enact two exceptions to the fundamental rights otherwise guaranteed to
the arrested persons under Clause (1) & (2),
• i.e., these protections are not available in case of an enemy alien
• a person arrested or detained under any law providing for preventive detention.
Cases:
D.K. Basu v State of West Bengal
Joginder Kumar v. State Of U.P and Others 1994 AIR 1349
 Safeguards Against The Order Of
Preventive Detention
• Art. 22 Clauses (4) to (7)
i) No law providing for preventive detention shall authorise
the detention of a person for a longer period than three
months unless
• (a) an Advisory Board consisting of persons who are, or
have been, or are qualified to be appointed as, Judges of
a High Court has reported before the expiration of the
said period of three months that there is in its opinion
sufficient cause for such detention:
 ii) to communicate the grounds of detention to the
detenu at the earliest;
iii) to afford him the earliest opportunity of making a
representation against the detention order which
implies the duty to consider and decide the
representation when made, as soon as possible.
• 44th Amendment – reduced the period of
detention from three to two months without the
opinion of advisory board. However, it is not
implemented yet.
• Preventive detention laws:
• 1. Preventive Detention Act, 1950 – valid till 1969
- A.K.Gopalan vs State of Madras (1950)
• 2. Maintenance of Internal Security Act (MISA), 1971 – valid till
1978
• 3. National Security Act, 1980
• 4.Foreign Exchange Conservation and Prevention of Smuggling
Activities (COFEPOSA), 1974
• 5. Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985 –
repealed
• 6. Prevention of Terrorist Activities Act (POTA), 2002
• 7. Unlawful Activities (Prevention) Act, 2008
 Art 23
Prohibition of traffic in human beings and forced labour
• (1) Traffic in human beings and begar and other similar
forms of forced labour are prohibited and any
contravention of this provision shall be an offence
punishable in accordance with law
• (2) Nothing in this article shall prevent the State from
imposing compulsory service for public purpose, and in
imposing such service the State shall not make any
discrimination on grounds only of religion, race, caste
or class or any of them
•
 Art 24
• Prohibition of employment of children in
factories, etc
• (i) No child below the age of fourteen years
shall be employed to work in any factory or
mine or engaged in any other hazardous
employment
 Right to Freedom of Religion
• 1) Freedom of conscience and free profession,
practice and propagation of religion (Article 25)
•
2) Freedom to manage religious affairs (Article 26)
•
3) Freedom as to payment of taxes for promotion of
any particular religion (Article 27)
•
4) Freedom as to attendance at religious instruction
or religious worship in certain educational institutions
(Article 28)
 What is Religion ?
• The term religion has not been defined in the
constitution.
• Religion has no precious definition.
• Religion is a matter of Faith but belief in God is
not essential to constitute Religion.
• Doctrines of each religion constitute its essential
part, but the court is competent to examine
them.
• Philosophy is different from religion.
 What is a Secular State?
• A secular state is said to be the one where there is no official religion
followed.
• To understand it more clearly, secularism is defined in the case of
S.R. Bommai v. Union of India [AIR 1958 SC 731], where it was held
that “Secularism is the basic feature of the Indian Constitution. The
State, in the interest of public order can impose certain restrictions
on the freedom of religion”.
• Religion is a matter of individual faith and cannot be mixed with
secular activities.
• Secularism means in India, state shall observe
neutrality & impartiality to all religions.
• All religions are respected and all beliefs &
methods of worship are accepted.
• All minority religions enjoy full freedom and in
certain cases protected.
• This is opposite in some neighbouring countries
such as Pakistan and Bangladesh which were
part of India but later became Islamic
countries.
• Before the Constitution 42nd amendment Bill
added the word “secular” in the constitution of
India, the word “secular” appeared only in
“Article 25”.
• India is a secular country and there is no state
religion.
• India also does not patronizes any religion.
• The Constitution 42nd amendment Act made
the above thought “explicit” in the constitution.
 Analysis
• Article 25 of the Constitution guarantees
freedom of religion to all persons in India. It
provides that all persons in India, subject to
public order, morality, health, and other
provisions:
– (i) Are equally entitled to freedom of conscience,
and
– (ii) Have the right to freely profess, practice and
propagate religion.
Meaning of Public order, morality and
health
• This means that Article 25 & 26 are not absolute.
No person can do such religious things which
affect the public order, morality and health.
• For example no one has right to conduct human
sacrifice.
• No one can perform worship on busy highway or
other public places which disturb the community.
• System of Devadasi etc.
• Nobody can claim a fundamental right to create
noise by amplifying the sound of his speech with
the help of loudspeakers.
• In this context, cracking of fireworks on Diwali &
using loudspeakers for Ajan in the morning had
also come under Supreme Court’s scrutiny.
• The Court restricted the time of bursting the
firecrackers, and it does not in any way violate
the religious rights of any person as enshrined
under Article 25 of the Constitution.
• Judicial Decisions:
• Appointment of Non-Brahmins as Pujari
• Triple Talaq
• Acquisition of place of worship by State
• Resham vs State of Karnataka – Hijab Issue -Full Bench
of Karnataka High Court presided by Chief Justice has
upheld the Hijab Ban GO of 5th February 2022. High
Court pronounced that Hijab is not essential religious
practice in Islam and and the school uniform is not
violative of fundamental rights and held it to be
reasonable restriction.
• Article 29 & 30
Cultural & Educational Rights
Rights Of Minorities
• Cultural and Educational Rights protect the
rights of religious, cultural and linguistic
minorities, by facilitating them to preserve their
heritage and culture.
 Protection of interests of minorities
• Article 29. (1) Any section of the citizens
residing in the territory of India or any part
thereof having a distinct language, script or
culture of its own shall have the right to
conserve the same.
• (2) No citizen shall be denied admission into
any educational institution maintained by the
State or receiving aid out of State funds on
grounds only of religion, race, caste,
language or any of them
Right of minorities to establish and
administer educational institutions
• Article 30. (1) All minorities, whether based on
religion or language, shall have the right to
establish and administer educational
institutions of their choice.
• (2) The state shall not, in granting aid to
educational institutions, discriminate against
any educational institution on the ground that
it is under the management of a minority,
whether based on religion or language
• Article 32 of the Indian Constitution
 Introduction
Declaration of fundamental rights is meaningless
unless there is an effective machinery for the
enforcement of the rights.
 It is the remedy which makes the right real.
 If there is no remedy there is no right at all.
 It was, therefore, our Constitutional-makers while
having incorporated a long list of fundamental
rights have also provided for an effective remedy
for the enforcement of these rights
 Article 32
• Article 32 confers one of the “highly cherished rights”.
• It confers the right to move the Supreme Court for the
enforcement of the Fundamental Rights.
• Article 32 provides for the last of the fundamental
rights.
• Unlike other rights, it is remedial and not substantive in
nature.
• So, if and when a person feels that he is unduly
deprived of any of the fundamental rights, he can,
under Article 32 of our Constitution, move the Supreme
Court for a legal remedy.
• Article 32 is itself a fundamental right.
• The apex court is given the authority to issue
directions or orders for the execution of any of
the rights conferred by the constitution as it is
considered ‘the protector and guarantor of
Fundamental Rights’.
• Note:
– Article 226 also empowers all the High Courts to
issue the writs for the enforcement of fundamental
rights.
• Article 32: In the words of Dr. B.R.Ambedkar:
–“If I was asked to name any particular Article
in this Constitution as the most important - an
Article without which this Constitution would be
a nullity- I could not refer to any other Article
except this one. It is the very soul of the
Constitution and the very heart of it.”
• Article 32 has contain 4 sub-clauses.
Kinds:
• Habeas Corpus
• Mandamus
• Prohibition
• Quo-warranto and
• certiorari
 writ of Habeas Corpus
• It is one of the important writs for personal liberty
• Meaning 'you may have the body’ or produce the
body.
• it is an order issued to set free a person who is, in
the opinion of the court, arbitrarily arrested or
detained by the executive authority.
• It is a process by which a person who is confined
without legal justification may secure a release from
his confinement.
 When the writ can be Issued?
• Writ of Habeas Corpus is issued if an individual is
kept in jail or under a private care without any
authority of law.
• A criminal who is convicted has the right to seek
the assistance of the court by filing an application
for “writ of Habeas Corpus” if he believes that he
has been wrongfully imprisoned and the conditions
in which he has been held falls below minimum
legal standards for human treatment.
 2. writ of Mandamus
• The Latin word 'Mandamus' means 'we order'.
• It is issued against a public authority who is under a
legal duty to do or forbear to do something, in the
performance of which the petitioner has a legal
right.
• The Supreme Court can issue this writ for the
reason of directing an inferior court or department
to do the needful for protecting or maintaining a
Fundamental Right.
• It is normally used for public purposes to enforce
performance of public duties.
 Conditions for issue of Mandamus
There must rest a legal right of the applicant for the performance
of the legal duty.
The nature of the duty must be public.
On the date of the petition, the right which is sought to be
enforced must be subsisting.
The writ of Mandamus is not issued for anticipatory injury.
 The writ of 'prohibition'
• It is issued for preventing an inferior court from
doing something which it is not legally competent
to do.
• Its main purpose is to prevent an inferior court
from exceeding its jurisdiction or from acting
contrary to the rules of Natural Justice.
• It prevents a tribunal possessing judicial or quasi-
judicial powers from assuming or threatening to
assume jurisdiction which it does not possess.
 Writ of Prohibition when issued?
• It is usually issued when the lower courts act in
excess of their jurisdiction. Also, it can be
issued if the court acts outside its jurisdiction.
And after the writ is issued, the lower court is
bound to stop its proceedings and should be
issued before the lower court passes an order.
• Prohibition is a writ of preventive nature. The
principle of this is ‘Prevention is better than
cure’.
 Writ of 'certiorari'
• literally means “to certify”.
• It is a remedial writ and is issued to quash an order
or decision which has been made without
jurisdiction or in violation of the principles of
natural justice.
• It is issued when there is a wrongful exercise of the
jurisdiction and the decision of the case is based on
it. The writ can be moved to higher courts like the
High Court or the Supreme Court by the affected
parties.
• With the weapon of Certiorari, the Supreme
Court has the power to remove a case from an
inferior court to a superior court in order to
protect a Fundamental Right.
• Both certiorari and prohibition have much in
common, both in their scope and in rules by
which they are governed.
• Both these writs lie against a judicial or quasi-
judicial body but not against an executive body.
 Example
• When an inferior Court takes up for hearing a matter over which it has no
jurisdiction, the person against whom the proceedings are taken can move the
superior Court for a writ of prohibition, and on that, an order will issue
forbidding the inferior Court from continuing the proceedings.
• On the other hand, if the Court hears that case or matter and gives a decision, the
party aggrieved will have to move the superior Court for a writ of certiorari, and
on that, an order will be made quashing the decision on the ground of want of
jurisdiction. Sometimes, the two writs may overlap.
 WRIT OF 'quo warranto',
• With the help of 'quo warranto', the Supreme Court can protect a
Fundamental Right from being violated by a government order
based upon favouritism.
• The object of this writ is to prevent a person who has wrongfully
usurped an office from continuing in that office – See: University of
Mysore vs. Govinda Rao, AIR 1965 SC 491.
“Quo Warranto” means “By what means” or
“by what authority”.
 For Instance
• If a person is unduly promoted by superseding his
seniors, the Supreme Court can, by such writ, quash the
order of such appointment for protecting the Right to
Equality as guaranteed by Article 14 and Article 16.
• The aggrieved person, may, however, seek a particular
writ to be issued, but it is the Supreme Court which will
decide what writ will be appropriate in a particular
case.
• In other words, it is the judges, and not the petitioner,
who will actually determine the nature of the writs to be
issued in a particular case.
 Features of FR
- Some rights are available to citizens and some
are available to all.
- They are not absolute. The government can
impose reasonable restrictions
- It is negative in character because it places a
limitation on the authority of State.
- They are justiciable.
 Rights applicable to all
• Fundamental rights available to both citizens and foreigners except
enemy aliens
• Article 14 – Equality before the law and equal protection of laws.
• Article 20 – Protection in respect of conviction for offences.
• Article 21 – Protection of life and personal liberty.
• Article 21A – Right to elementary education.
• Article 22 – Protection against arrest and detention in certain cases.
• Article 23 – Prohibition of traffic in human beings and forced labour.
• Article 24 – Prohibition of employment of children in factories etc.
• Article 25 – Freedom of conscience and free profession, practice and
propagation of religion.
• Article 26 – Freedom to manage religious affairs.
• Article 27 – Freedom from payment of taxes for promotion of any religion.
• Article 28 – Freedom from attending religious instruction or worship in
certain educational institutions.
 Fundamental Rights applicable only
to Citizens
• Fundamental Rights Available Only to Citizens of India
• Article 15 – Prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth.
• Article 16 – Equality of opportunity in matters of public
employment.
• Article 19 – Protection of six rights related to freedom – (a) of
speech and expression; (b) to assemble peaceably and without
arms; (c) to form associations or unions; (d) to move freely
throughout the territory of India; (e) to reside and settle in any part
of the territory of India; and (f) to practice any profession, or to
carry on any occupation, trade or business.
• Article 29 – Protection of language, script and culture of minorities.
• Article 30 – Right of minorities to establish and administer
educational institutions.
 Fundamental Duties

• Article 51A was added by 42nd Amendment Act, 1976

• 11 duties under Part IV A of Constitution.
• 11th duty was added by 86th Amendment Act, 2002.
• 51A. Fundamental duties.—It shall be the duty of every
citizen of India—
• (a) to abide by the Constitution and respect its ideals and
institutions, the National Flag and the National Anthem;
• (b) to cherish and follow the noble ideals which inspired our
national struggle for freedom;
• (c) to uphold and protect the sovereignty, unity and integrity
of India;
• (d) to defend the country and render national
service when called upon to do so;
• (e) to promote harmony and the spirit of
common brotherhood amongst all the people
of India transcending religious, linguistic and
regional or sectional diversities; to renounce
practices derogatory to the dignity of women;
• (f) to value and preserve the rich heritage of
our composite culture;
• (g) to protect and improve the natural environment
including forests, lakes, rivers and wild life, and to have
compassion for living creatures;
• (h) to develop the scientific temper, humanism and the
spirit of inquiry and reform;
• (i) to safeguard public property and to abjure violence;
• (j) to strive towards excellence in all spheres of individual
and collective activity so that the nation constantly rises to
higher levels of endeavour and achievement;
• (k) who is a parent or guardian to provide opportunities for
education to his child or, as the case may be, ward between
the age of six and fourteen years.
• Cases:
1. AIIMS Students Union vs AIIMS
2. Sarbananda Sonowal vs Union of India
Federalism – Centre State
Relationship
• What is Federalism/ Federal Structure?
• Why India adopted Federalism?
• What was the views of various eminent
jurist/historians?
What is Federalism/ Federal Structure?
Nature of Indian Constitution
Two classification (system of government or form of
government):
• Unitary
• Federal
Is Indian Constitution Federal in nature or Unitary in
nature?
--------- Before finding the answer to the said
question let us discuss the definition of the terms
Unitary and Federal.
Definition:
Unitary Government – all the powers are vested in the
national government and the regional governments
derive their power from the national government.
Eg: Britain , Japan, Spain, China etc
Federal Government – Powers are divided between the
national government and the regional governments by
the Constitution itself and both operate in their
respective jurisdictions independently.
Eg: US, Australia, Canada, Russia etc
 Why India adopted Federalism?
• Help in addressing the diversities
• Suitable for a country of size of India
• Would help address the fissiparous tendencies
by retaining the autonomy of the states.
• Powers of the local self government were also
protected.
• Essentials of Federalism:
1. Division of Powers
2. Supremacy of Constitution
3. Rigidity of Constitution
4. Written Constitution
5. Authority of Courts
• Essentials of Federalism:
1. Division of Powers – 7th Schedule – Three list
- Union List (97 entries) - National importance such as
defence, foreign affairs etc
- State List (66 entries) – look after the matters of regional
importance such as Public order, Health
- Concurrent List (47 entries)
- Residuary power given to centre
2. Supremacy of Constitution – laws enacted must confirm
to the provisions of Constitution
3. Rigidity of Constitution – Amendment procedure in tough
4. Written Constitution – lengthiest, specifies
the structure, organisation, powers and
functions of both central and state government.
5. Authority of Courts – independent judiciary-
two reasons
a) to protect the supremacy of the
Constitution
b) to settle the dispute between centre and
state
• Unitary features:
- Strong Centre’
- Single Constitution
- Flexibility of the Constitution etc
 Views of Eminent jurist/ historians-
Critical evaluation
• A federal constitution envisages a demarcation of
governmental functions and its powers between the centre
and the state as sanctioned by the constitution which is a
written document.
Is Indian Constitution purely federal in nature?
• Prof. Wheare : “ The Constitution establishes a system of
government which is almost quasi- federal…….. a unitary
State with subsidiary federal features rather than a federal
State with subsidiary unitary features”
• Sir Ivor Jennings has characterized it as “a federation with a
strong centralizing tendency”.
• Granville Austin called the Indian Federalism as a
“Cooperative Federalism”.
• American Constitution is truly federal type.
• Framers of Constitution took note of the
practical needs of the country designed on
federal structure ‘not on the footing that it
should confirm to some theoretical, definite
or standard pattern, but on the basis that it
should be able to subserve the need of the
vast and diverse country like India’.
Dr.Ambedkar on Federalism – “The basic
principles of federalism is that the legislative
and executive authority is partitioned between
the centre and States and not by law or by the
Centre but the Constitution itself.. The Centre
and States are co-equal in this matter”
• Thus , the Indian Constitution is mainly federal
with unique safeguards for enforcing national
unity and growth.
 Unitary features in Federal structure
1. Appointment of Governors – Article 155 and
156
2. Parliament’s power to legislate in the
national interest – Article 249
3. Parliaments powers to form new states and
alter boundaries of existing States – Article 3
4. Emergency Provisions – Article 352, 356, 360
 Centre –State Relationship
• Legislative – Art 245 to Art 255
• Administrative – Art 256 to Art 263
• Financial – Art 268 to Art 293
 Legislative – Art 245 to Art 255
• 1.Extent of laws made by Parliament and by the
Legislatures of States - Parliament may make laws
for the whole or any part of the territory of India,
and the Legislature of a State may make laws for
the whole or any part of the State.
• Exception – Parliament can make extra territorial
legislation. It can be applicable to Indian citizens
and their property in any part of the world.
• 2. Subject-matter of laws made by Parliament
and by the Legislatures of States – Three list
under Art 246
• Union List -97 entries
• Concurrent List – 66 entries
• State List- 47 entries
• 3. When can Parliament enact laws in the
state field?
- National Interest – Art 249 - resolution must
be supported by 2/3rd of the members present
and voting.
- One year – further period of one more year
- Proclamation of Emergency – Art 250 -
- When states make a request – Art 252 -One
year – further period of one more year
• Art 254. Inconsistency between laws made by
Parliament and laws made by the Legislatures
of States – Doctrine of Repugnancy
• Which will prevail? – Central Act will prevail
and Legislature of the State shall, to the extent
of the repugnancy, be void
• Art 254 (2) – Reserved for assent of president
– State Act will prevail
Administrative – Art 256 to Art 263
Article 256 – Obligation of States and the Union:
- State should ensure the compliance with the laws made
by the Parliament
Article 257 – Control of Union over states in certain cases:
- Executive power of states shall be exercised so as not
to impede or abridge the executive power of the union
- Construction and maintenance of means of
communication, declared to be of national or military
importance
- Measures to be taken for the protection of railways
within the state.
• All India Services
• Public Service Commissions
Financial – Art 268 to Art 293
CATEGORY LEVIED COLLECTED

TAXES (Art Union Collected and appropriated by

268) Ex: stamp duties on bills of States
exchange, cheques and Ex: stamp duties on bills of
promissory notes exchange, cheques and promissory
notes
TAXES (Art Levied by Union but Collected by Union but assigned to
269) assigned to States States
Eg: Sale or purchase of Eg: Sale or purchase of goods and
goods and consignment of consignment of goods
goods
TAXES (Art- Levied by Government of Collected by Government of India -
270) Indian- Distributed Distributed between Union and
between Union and States States

Central GST Union Union and States

State GST Union Union and States

• Administrative Reforms Commission
- 6 member under he chairmanship of Moraji Desai
– study the centre state relation – 22
recommendation were submitted. Few are
1. Inter – State Council has to be established under
Art 263
2. Delegation of powers to the maximum extent to
the states.
3. Transferring of more financial resources to the
states to reduce their burden.
• Rajmannar Committee – Tamil Nadu Government -
three member committee on the head of Dr.Rajmannar
• Sarkaria Committee – in 1983, three member
committee – 247 recommendations were submitteed-
study for one year.
They are:
1. Permanent Inter-State Council should be set up under
Art 263
2. All India Service must be strengthened
3. Centre should consult State before making any any
law on concurrent list.
4. Zonal Councils should be established and
activated to promote federalism
5. The residuary power of the Central
Government should remain with the parliament
• Punchhi Committee
In 2007
1. To facilitate effective implementation of the
laws on List III
• 2. New all- India services in sectors like health,
education, engineering and judiciary should
be created.
3. The current ceiling on profession tax should
be completely done away with by a
Constitutional Amendment.
 Finance Commission – Art 280
Finance Commission is a constitutional body for the purpose of
allocation of certain revenue resources between the Union and
the State Governments.
Duty of the Commission to make recommendations to the
President in relation to the
• the distribution between the Union and the States of the net
proceeds of taxes which are to be, or maybe, divided between
them and the allocation between the States of the respective
shares of such proceeds;
• the principles which should govern the grants in
aid of the revenues of the States out of the
Consolidated Fund of India;(Consolidated Fund of
India is the account of the revenue the
Government of India receives — via income tax,
Customs, central excise and the non-tax revenue
— and the expenses it makes, excluding
exceptional items.)
• any other matter referred to the Commission by
the President in the interests of sound finance
 Powers and Position of President of India

In Indian Parliamentary practice, the President is the nominal executive or a Constitutional ruler. He is
the head of the nation, but does not govern the nation. Our Union Council of Ministers headed by the
Prime Minister is the real executive. And the President rules the country on the advice of the Prime
Minister and his colleagues.

Powers: We shall now discuss in details, the powers and functions of the President of India in the light
of the above discussion. The powers and the functions of the President of India may be classified under
five heads, viz., and executive, legislative, financial, judicial and emergency.

1. Executive Power: The President of India is the head of the executive of the Union Government.
Therefore, all executive powers are vested in the hands of the President. He can exercise these powers
either directly or through the subordinate officers.

• According to the Constitution of India, all executive action is also taken in his name. The
President appoints the Governors of the States, the Judges of the Supreme Court and High
Courts of the States. The Prime Minister of India is appointed by the President. The President
also appoints other Ministers in consultation with the Prime Minister.
• The Constitution of India empowers the President to appoint the important officers of the Union
Government including the Attorney-General for India, the Comptroller and Auditor-General of
India, the Chairman of the Finance Commission, the Election Commissioners etc.
• The President is responsible for the administration of the Union Territories. For this reason, he
appoints Chief Commissioners and Lieutenant Governors of the centrally administered areas.
• The President has been empowered to set up a Commission for the settlement of disputes
relating to the supply of water between two or more States.
• Moreover, the Constitution has authorized the President to establish an Inter-State Council to
enquire into disputes that may arise between, the States as well as to discuss the matters of the
common interests between the Union and the States.
• The President alone can remove the Council of Ministers, the Governors of States and the
Attorney-General for India.
• The President of India is Supreme Commander-in-Chief of the Army, Navy and the Air Force of
the Union. He has the power to declare war.
• The President also enjoys the diplomatic power. He appoints the diplomatic representatives of
India to the foreign States. He also receives the credential letters of the diplomatic
representatives of other States.
• The President represents India in international affairs. He has the power to conclude treaties
with foreign States.

2. Legislative Powers: The President of India also enjoys legislative powers. He is an integral part of
Indian Parliament. Parliament consists of the President and two Houses—the House of the people (Lok
Sabha) and the Council of States (Rajya Sabha).

• The President has the power of to summon and prorogue both the House of Parliament. He can
also dissolve the House of the People before the expiry of its term.
• The Constitution of India empowers the President to deliver an address to the Parliament at the
commencement of the first session every year. He may also send messages to Parliament.
• The President nominates two members to the Lok Sabha from the Anglo-Indian Community
 and twelve members to the Rajya Sabha from among the persons who have acquired special
knowledge in art, science, literature and social service.
• In India, a public bill cannot become an act without the assent of the President. A bill passed by
the Union Parliament is sent to the President for his assent. The President may give his assent to
the bill or may withhold his assent from the bill or he may return the bill to Parliament for its
reconsideration. If the bill is again passed by both Houses of Parliament, the President shall
have to give his assent.
• When the Parliament is not in session, the President may issue an ordinance. It has the same
force as the law or Parliament. But it must be placed before the Parliament when it again
assembles. If it is then approved by both the Houses of Parliament, it will cease to operate after
six weeks of the date of meeting of Parliament. And the President can call a joint session of
both Houses of Parliament to resolve a constitutional deadlock over a public bill.

3. Financial Powers: The President of India also exercises financial powers. No money bill can be
introduced in Parliament without the recommendations of the President.

• According to the Constitution of India, the Annual Financial Statement is placed by the
President before both the Houses of Parliament. This statement shows the estimates of revenue
and expenditure of the central Government for the next year.
• It may be pointed out that the proposal for taxation and expenditure cannot be made without the
approval of the President.

4. Judicial Powers: The President of India grants, pardons, reprieves or remissions of punishment to
any person who has been convicted by a Court of Law.

5. Emergency Powers: The President of India exercises extra-ordinary powers in times of emergency.

The three kind of Emergency situations are:

1. Emergency due to armed rebellion or external aggression;
2. Emergency arising from the breakdown of constitutional machinery in a State;
3. Financial Emergency.

Proclamation of National Emergency by the President of India: The President of India may issue a
Proclamation of National Emergency when the security of India or any part thereof is threatened by
war, armed rebellion or external aggression. Such a Proclamation of Emergency may remain in force
for an indefinite period. During a Proclamation of National Emergency, the executive power of the
States is to be exercised in accordance with the directions given by the Central Government. Parliament
has the power to make laws on the subjects enumerated in the State List. The right to freedom of
speech and expression, freedom to form association, freedom to practice and profession, etc., embodied
in Article 19 shall remain suspended.

Failure of State Constitutional Machinery: In Case of failure of Constitutional machinery in a State,

the President of India is authorized to make a Proclamation to that effect. The maximum duration of
this type of emergency is three (3) years. During such an emergency, the President may assume to
himself the executive powers of the State. The powers of the legislatures of the State are to be exercised
by the Union Parliament.

Proclamation of Financial Emergency by the President: The President may also issue a
Proclamation of Financial Emergency if he is satisfied that the financial stability of India is threatened.
This type of emergency may continue to remain in force for an indefinite period. The Central
Government may give directions to the States for canons of financial propriety. All money-bills passed
by the State Legislatures are to be reserved for the consideration of the President.

Position: Thus the President of India has been given wide and far-reaching powers which he enjoys
both during normal and emergency times. But after the passing of the Constitution Forty-Second
(1976) and Forty-Fourth (1978) Amendment Acts, the President of our Republic has become a
Constitutional figurehead and nothing beyond that.

Today, President’s position is one of great authority and dignity, but at the same time strictly
constitutional. Thus the President is bound in every case to act on the advice of his Prime Minister and
other Ministers who are responsible to the Lok Sabha and responsive to the public opinion.

In short, the powers really reside in the Ministry and the Parliament and not in the President as such.
He has no discretion in our Parliamentary system of government.

The Supreme Court through various decisions has upheld the position that the President is a
constitutional head and as such he is as much bound by the advice of his Ministers during emergency as
during normal times.

For example, the President can declare a proclamation of the National Emergency (Article 352) only
after receiving a written communication of the decision of the Union Cabinet. If the President abuses
his powers, he can be removed from office by a process of impeachment.

It does not, however, mean that the President of India is a magnificent cipher or a mere rubber stamp.
Unlike the British Monarchy which is hereditary, the President of our Republic is an elected Head of
the State. In our coalition politics, there are some grey areas where the President may still have to use
his own judgment and wisdom. These are:
• Appointment of the Prime Minister,
• Dismissal of the Union Ministry,
• Dissolution of the Lok Sabha, and,
• Seeking information on all matters of administration and legislation from the Prime Minister
etc.

In some such situations, the role of our President may become most crucial and decisive. However, the
President has to be free from all political affiliations. He is expected to act with complete constitutional
rectitude and impartiality. The nation is expected to be benefitted by his wise leadership and
constructive role.

In short, the President of India is the symbol of national unity, magnet of loyalty and apparatus
of ceremony.
PRESIDENT OF INDIA:
AN OVERVIEW

Karthik Shiva
Assistant Professor of Law
VIT SOL
 UNION GOVERNMENT

• Legislature – Makes the Law

• Executive – Executes the Law
• Judiciary – Interpreting the
Law
 EXECUTIVE POWER

• Three Wings of the Govt – Functioning – Role and Responsibilities – Separation of Powers v. Division of
Powers

• Executive Power is vested in the hands of Dual Executive

• Nominal Executive and Real Executive

• Nominal Executive – President of India

• Real Executive - Prime Minister and Council of Ministers

• Dual-Level Executive – Union and States

• Union – vested in the PM & COM

• State – vested in the CM & COM

 UNION EXECUTIVE

• Art. 52-78 of the COI – Union Executive

• The Union Executive consists of the
a) The President,
b) The Vice- President,
c) The Prime Minister,
d) The Council of Ministers and
e) The Attorney General of India.
• Head of the State – Art. 52 – President of India
 PRESIDENT OF INDIA
• Head of the State of the Republic of India
• 15th President – Draupadi Mormu
• Electoral College of India – Indirect Election
• Term of Office – 5 years – No bar on re-election
• Replaced the King of India who was presented by the Governor
General of India – George VI the Head of the Indian State as
under Indian Independence Act, 1947 till the adoption of the
Constitution
• Position of the President of India – Akin to President of Ireland
(Elected President acting on advice of ministers answerable to
legislature
 PRESIDENT OF INDIA – CONSTITUENT
ASSEMBLY DELIBERATIONS

• Dr B.R. Ambedkar clarified the position of the President in the Constituent

Assembly:

“Under the draft constitution the President occupies the same position as the
King under the English Constitution. He is the head of the state but not of the
Executive. He represents the Nation but does not rule the Nation. He is the
symbol of the Nation. His place in the administration is that of a ceremonial
device on a seal by which the nation's decisions are made known.”
 PRESIDENT OF INDIA

• Art. 52-62 – Deals with the President – Election, Qualification, Terms and
Impeachment

• Art. 52 – Office of the President

• Art. 53 – Executive Power the Union

• Art. 54 – Election of the President

• Art. 55 – Manner of Election of President

• Art. 56 – Term of Office of President

• Art. 57 – Eligibility for Re-election

 PRESIDENT OF INDIA

• Art. 58 – Qualification for election as President

• Art. 59 – Conditions of President’s Office

• Art. 60 – Oath of Affirmation by the President

• Art. 61 – Procedure for Impeachment of the President

• Art. 62 – Time of holding of election to fill vacancy in the office of President

and the term of office of person elected to fill casual vacancy
 PRESIDENT OF INDIA

• Art. 52 – Office of the President

• “There shall be a President of India”

• Vice President to take over as Acting President – Art. 65

• V.P. not available –The President (Discharge of Functions) Act, 1969 –

Sec. 3 – Chief Justice or Senior Most Judge of SC to step in – Art. 70

• Chief Justice Mohammed Hidayatullah – Only CJI to serve as Acting

President
 EXECUTIVE POWER OF THE
PRESIDENT
• Art. 53 (1) – Executive Power of the Union

• It vests in the President of India

• It shall be exercised by him directly or through officers subordinate to him

• It provides that such exercise shall be in accordance with the constitution – Limitation of executive
power

• Executive Power is not defined under the Constitution of India

• Art. 53 r/w Art. 73 clarifies the concept of executive power

• Art. 73 – Executive power of the Union a) co-extensive with power of the Parliament to make laws
b)
 POWERS OF THE PRESIDENT

The President of India can be broadly classified under the following heads;

a) Executive Powers

b) Legislative Powers

c) Judicial Powers

d) Military Powers

e) Diplomatic Powers

f) Emergency Powers
 EXECUTIVE POWERS OF THE
PRESIDENT

• Executive Power of the Union vested in the hands of the President – to be

exercised on the aid and advise of the PM & CoM

• Power to Appoint - Appointment of various officials such as PM, Council

of Ministers, Attorney General, CAG, Governor of States, Judges of the
Supreme Court and High Court, CEC, Other Election Commissioners,
various commissions (NCSC, NCST, NCBC), etc.

• Power to return the advice of the CoM once – Art. 74(1)

 LEGISLATIVE POWERS OF THE PRESIDENT

• Power to make recommendation for a Bill for Reorganisation of States [Proviso to Art.
3]

• Power to nominate a number of members to the Parliament [Art. 80(3)]

• Power to summon or prorogue the Houses of the Parliament [Art. 85(1) & Art. 85(2)(a)]

• Power to dissolve the Lok Sabha [Art. 85(2)(b)]

• Power to send messages to the Parliament (Art. 86)

• Power to address the Parliament (Art. 87)

• Power to call for joint sitting of the Parliament [Art. 108)

 LEGISLATIVE POWERS OF THE PRESIDENT

• Power to assent to Bill (including returning it once for

reconsideration other than money bill) [Art. 111]

• Power to recommend Money Bill for introduction in the Lok Sabha

[Art. 117]

• Power to make ordinance (Art. 123)

• Power to make regulations for peace, progress and good government

of Union Territories (Art. 240)
 JUDICIAL POWERS OF THE PRESIDENT

• Power and Duty to defend, preserve and protect the constitution –

Art. 60

• Pardoning Power of the President – Art. 72

• Power to appoint judges and decide as to seniority – Art. 217(2) and

(3) and 124(2)

• Power of the President to seek the Advisory Opinion of the Supreme

Court (Art. 143)
 DIPLOMATIC POWERS OF THE PRESIDENT

• The President represents India in international forums and affairs where such a function is
chiefly ceremonial.

• The President may also send and receive diplomats, i.e. the officers from the Indian Foreign
Service. The President is the first citizen of the country.

• All international treaties and agreements are negotiated and concluded on behalf of the
President.

• In practice, such negotiations are usually carried out by the Prime Minister along with his
Cabinet (especially the Foreign Minister).

• Such treaties are subject to the approval of the Parliament.

 MILITARY POWERS OF THE PRESIDENT

• The President is the Supreme Commander of the Indian Armed Forces. (Art. 53)

• The President can declare war or conclude peace, on the advice of the Union Council
of Ministers headed by the Prime Minister.

• The President also appoints the chiefs of the service branches of the armed forces.

• All important military treaties and contracts are made in the President's name
 EMERGENCY POWERS OF THE
PRESIDENT

Emergency Powers of the President – Power to declare

emergencies

• National Emergency – Art. 352

• State Emergency – Art. 356

• Financial Emergency – Art. 360

 IMPEACHMENT OF THE
PRESIDENT

• Art. 56 (2) (b) read with Art. 61 of the Constitution of India

• Impeachment – Reasoning for violation of the Constitution –Art. 61(1) – Charge in either house of
the Parliament – applies only for President

• Step 1 - Requirement for a Charge >> 14 Days’ Notice in writing signed by minimum 1/4th
Members of that House + Resolution has to be passed by 2/3rd Majority of that House

• Step 2 – On basis of charge – Other House to investigate – President shall have right to appear
and be represented at such investigation – Investigating House to pass the impeachment
resolution by 2/3rd Majority – charge sustained – Effect of Removal
Directive Principles of State
Policy – PART IV
Article 36- 51
• Features of Directive Principles
• Classification
• Relationship between FR and DPSP
• Idea taken from Irish Constitution
• Dr.B.R.Ambedkar described these principles as
“Novel Features” of the Indian Constitution
and acts as an instrument of instruction to the
State.
• Granville Austin – American historian on
Indian Constitution – describes DPSP as
“Conscience of the Constitution”.
 Features of DPSP
• Denotes the ideals of the State – Keep in mind
while formulating the policies and enacting laws.
• It is a set of special provisions created by the
makers for giving proper direction to the States to
act.
• Constitutional Instruction or recommendations to
the State in legislative, Executive and
Administrative matters.
• It aims at realising the high ideals of Justice,
liberty, equality and fraternity as outlined in
Preamble.
• Promotes Socio-Economic Justice
• Political democracy would be useless without economic
democracy.
• Concept of Welfare State
Was this a new concept under the Constitution of India?
• It resembles the Government of India Act, 1935.
• DPSP are non-justiciable in nature – not legally enforceable
by the courts for their violation.
• Duty of the State to apply these principles in making laws.
• Though non-justiciable in nature, the laws can be
challenged if it violates Fundamental Rights.
 Classification
• Social and Economic Charter
• Social Security Charter
• Community Welfare Charter
Others:
• Socialist Principles
• Gandhian Principles
• Liberal –Intellectual Principles
Social and Economic Social Security Charter Community Welfare
Charter Charter

1. Article 38 1. Article 39A 1. Article 44

2. Article 39 2. Article 41 2. Article 40
3. Article 42 3. Article 48
4. Article 43 4. Article 48A
5. Article 43A 5. Article 49
6. Article 45 6. Article 50
7. Article 46 7. Article 51.
8. Article 47
• Article 36 - In this Part, unless the context otherwise
requires, “the State” has the same meaning as in Part III.
• Article 37 - Application of the principles contained in this
Part - The provisions contained in this Part shall not be
enforceable by any court, but the principles therein laid
down are nevertheless fundamental in the governance of
the country and it shall be the duty of the State to apply
these principles in making laws.
• Debate as to the usage of two words ”Directive” and
“Fundamental” – it is necessary to give direction to the
future legislature and executive to show in what manner
they have to exercise their legislative and executive powers.
 Social and Economic Charter
Article 38- Social order based on justice
(1) The State shall strive to promote the welfare of the
people by securing and protecting as effectively as it may
a social order in which justice, social, economic and
political, shall inform all the institutions of the national
life.
(2) The State shall, in particular, strive to minimise the
inequalities in income, and endeavour to eliminate
inequalities in status, facilities and opportunities, not only
amongst individuals but also amongst groups of people
residing in different areas or engaged in different
vocations.
• Article 39 - Principles of policy to be followed by the State for securing
economic justice: Article 39
in particular, direct its policy towards securing—
(a) that the citizens, men and women equally, have the right to an adequate
means of livelihood;
(b) that the ownership and control of the material resources of the
community are so distributed as best to subserve the common good;
(c) that the operation of the economic system does not result in the
concentration of wealth and means of production to the common
detriment;
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of workers, men and women, and the
tender age of children are not abused and that citizens are not forced by
economic necessity to enter avocations unsuited to their age or
strength;
 Social Security Charter
1. Equal justice and free legal aid - Article 39A
The State shall secure that the operation of the
legal system promotes justice, on a basis of equal
opportunity, and shall, in particular, provide free
legal aid, by suitable legislation or schemes or in
any other way, to ensure that opportunities for
securing justice are not denied to any citizen by
reason of economic or other disabilities.
- To promote equal justice
- To provide free legal aid to the poor
• Right to work, education and public assistance in certain
cases: Article 41- The State shall, within the limits of its
economic capacity and development, make effective
provision for securing the right to work, to education and to
public assistance in cases of unemployment, old age,
sickness and disablement, and in other cases of undeserved
want.
• Just and humane conditions of work: Article 42 - The State
shall make provision for securing just and humane
conditions of work and for maternity relief.
• Living wage for workers: Article 43 –Secure a living wage
and a decent standard of life and social and cultural
opportunities for all workers.
• Art 43A – Participation of workers in
management of industries- The State shall
take steps, by suitable legislation or in any
other way, to secure the participation of
workers in the management of undertakings,
establishments or other organisations
engaged in any industry (42nd Amendment,
1976)
• Provision for early childhood care and education to children below
the age of six years: Article 45
• Promotion of educational and economic interest of weaker
sections: Article 46 -The State shall promote with special care the
educational and economic interests of the weaker sections of the
people, and, in particular, of the Scheduled Castes and the
Scheduled Tribes, and shall protect them from social injustice and
all forms of exploitation.
• Duty to raise the standard of living and improvement of health:
Article 47 -The State shall regard the raising of the level of nutrition
and the standard of living of its people and the improvement of
public health as among its primary duties and, in particular, the
State shall endeavour to bring about prohibition of the
consumption except for medicinal purposes of intoxicating drinks
and of drugs which are injurious to health.
 Community Welfare Charter
1. Uniform Civil Code: Article 44
2. Organisation of Village Panchâyat: Article 40
3. Organisation of agriculture and animal
husbandry: Article 48 -The State shall endeavour
to organise agriculture and animal husbandry on
modern and scientific lines and shall, in
particular, take steps for preserving and
improving the breeds, and prohibiting the
slaughter, of cows and calves and other milch and
draught cattle.
• Protection and improvement of forests and wildlife:
Article 48A -The State shall endeavour to protect and
improve the environment and to safeguard the forests
and wild life of the country (42nd Amendment, 1976)
• Protection of monuments and places and objects of
national importance: Article 49
• Separation of Judiciary from Executive: Article 50 -The
State shall take steps to separate the judiciary from the
executive in the public services of the State.
• Promotion of International peace and security: Article
51.
 Differences
Fundamental Rights Directive Principles of State
Policy
1. Negative – as it restricts 1. Positive – requires the State
the State from doing certain to do certain things.
tings.
2. Justiciable 2. Non- justiciable

3. Aim to establish Political 3. Aim to establish Economic

Democracy and Social Democracy
4. Legal Sanctions 4. Moral and political
Sanctions
5. Welfare of individual 5. Welfare of community

6. Automatically enforced 6. Non – enforceable

7. Law violative of FR is 7. Courts cannot declare a law

Unconstitutional to be violative.
 Conflict
• Supreme court initially uphold the validity of
Fundamental Rights than DPSP
• Some case – DPSP> FR
• Recent approach – FR=DPSP (Harmonious
Construction)
 ORGANISATION,COMPOSITION AND ELECTION OF INDIAN
PARLIAMENT

PARLIAMENT

The Parliament is the legislative organ of the Union government. It occupies a pre-eminent
and central position in the Indian democratic political system due to adoption of the
parliamentary form of government, also known as ‘Westminster’ model of government .

Articles 79 to 122 in Part V of the Constitution deal with the organisation, composition,
duration, officers, procedures, privileges, powers and etc. of the Parliament.

ORGANISATION OF PARLIAMENT

Under the Constitution, the Parliament of India consists of three parts viz, the President, the
Council of States and the House of the People. In 1954, the Hindi names ‘Rajya Sabha’ and
‘Lok Sabha’ were adopted by the Council of States and the House of People respectively.
The Rajya Sabha is the Upper House (Second Chamber or House of Elders) and the Lok
Sabha is the Lower House (First Chamber or Popular House). The former represents the
states and union territories of the Indian Union, while the latter represents the people of
India as a whole.

Though the President of India is not a member of either House of Parliament and does not
sit in the Parliament to attend its meetings, he is an integral part of the Parliament. This is
because a bill passed by both the Houses of Parliament cannot become law without the
President’s assent. He also performs certain functions relating to the proceedings of the
Parliament, for example, he summons and prorogues both the Houses, dissolves the Lok
Sabha, addresses both the Houses, issues ordinances when they are not in session, and so
on.

In this respect, the framers of the Indian Constitution relied on the British pattern rather than
the American pattern. In Britain, the Parliament consists of the Crown (King or Queen), the
House of Lords (Upper House) and the House of Commons (Lower House). By contrast, the
American president is not an integral part of the legislature. In USA, the legislature, which
is known as Congress, consists of the Senate (Upper House) and the House of
Representatives (Lower House).

1
The parliamentary form of government emphasises on the interdependence between the
legislative and executive organs. Hence, we have the ‘President-in-Parliament’ like the
‘Crown-in-Parliament’ in Britain. The presidential form of government, on the other hand,
lays stress on the separation of legislative and executive organs. Hence, the American
president is not regarded as a constituent part of the Congress.

COMPOSITION OF THE TWO HOUSES

Composition of Rajya Sabha

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

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

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

1. Representation of States The representatives of states in the Rajya Sabha are elected by
the elected members of state legislative assemblies. The election is held in accordance with
the system of proportional representation by means of the single transferable vote. The seats
are allotted to the states in the Rajya Sabha on the basis of population. Hence, the number of
representatives varies from state to state. For example, Uttar Pradesh has 31 members while
Tripura has 1 member only. However, in USA, all states are given equal representation in
the Senate irrespective of their population. USA has 50 states and the Senate has 100
members—2 from each state.

2. Representation of Union Territories The representatives of each union territory in the

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

3. Nominated Members The president nominates 12 members to the Rajya Sabha from
people who have special knowledge or practical experience in art, literature, science and
social service. The rationale behind this principle of nomination is to provide eminent

2
persons a place in the Rajya Sabha without going through the process of election. It should
be noted here that the American Senate has no nominated members.

Composition of Lok Sabha

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

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

1. Representation of States The representatives of states in the Lok Sabha are directly
elected by the people from the territorial constituencies in the states. The election is based
on the principle of universal adult franchise. Every Indian citizen who is above 18 years of
age and who is not disqualified under the provisions of the Constitution or any law is
eligible to vote at such election. The voting age was reduced from 21 to 18 years by the 61st
Constitutional Amendment Act, 1988.

2. Representation of Union Territories The Constitution has empowered the Parliament to

prescribe the manner of choosing the representatives of the union territories in the Lok
Sabha. Accordingly, the Parliament has enacted the Union Territories (Direct Election to the
House of the People) Act, 1965, by which the members of Lok Sabha from the union
territories are also chosen by direct election.

3. Nominated Members The president can nominate two members from the Anglo-Indian
community if the community is not adequately represented in the Lok Sabha. Originally,
this provision was to operate till 1960 but has been extended till 2020 by the 95th
Amendment Act, 2009.

SYSTEM OF ELECTIONS TO LOK SABHA

The various aspects related to the system of elections to the Lok Sabha are as follows:

Territorial Constituencies

For the purpose of holding direct elections to the Lok Sabha, each state is divided into
territorial constituencies. In this respect, the Constitution makes the following two
provisions:

3
 1. Each state is allotted a number of seats in the Lok Sabha in such a manner that the
ratio between that number and its population is the same for all states. This provision
does not apply to a state having a population of less than six millions.

2. Each state is divided into territorial constituencies in such a manner that the ratio
between the population of each constituency and the number of seats allotted to it is
the same throughout the state.

In brief, the Constitution ensures that there is uniformity of representation in two respects:
(a) between the different states, and (b) between the different constituencies in the same
state.

The expression ‘population’ means the population as ascertained at the preceding census of
which the relevant figures have been published.

Readjustment after each Census

After every census, a readjustment is to be made in (a) allocation of seats in the Lok Sabha
to the states, and (b) division of each state into territorial constituencies. Parliament is
empowered to determine the authority and the manner in which it is to be made.
Accordingly, the Parliament has enacted the Delimitation Commission Acts in 1952, 1962,
1972 and 2002 for this purpose.

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

The 84th Amendment Act of 2001 also empowered the government to undertake
readjustment and rationalisation of territorial constituencies in the states on the basis of the
population figures of 1991 census. Later, the 87th Amendment Act of 2003 provided for the
delimitation of constituencies on the basis of 2001 census and not 1991 census. However,
this can be done without altering the number of seats allotted to each state in the Lok Sabha.

Reservation of Seats for SCs and STs

Though the Constitution has abandoned the system of communal representation, it provides
for the reservation of seats for scheduled castes and scheduled tribes in the Lok Sabha on
the basis of population ratios .

4
Originally, this reservation was to operate for ten years (ie, up to 1960), but it has been
extended continuously since then by 10 years each time. Now, under the 95th Amendment
Act of 2009, this reservation is to last until 2020.

Though seats are reserved for scheduled castes and scheduled tribes, they are elected by all
the voters in a constituency, without any separate electorate. A member of scheduled castes
and scheduled tribes is also not debarred from contesting a general (non-reserved) seat.

The 84th Amendment Act of 2001 provided for refixing of the reserved seats on the basis of
the population figures of 1991 census as applied to rationalisation of the general seats. Later,
the 87th Amendment Act of 2003 provided for the refixing of the reserved seats on the basis
of 2001 census and not 1991 census.

Proportional Representation not Adopted

Though the Constitution has adopted the system of proportional representation in the case of
Rajya Sabha, it has not preferred the same system in the case of Lok Sabha. Instead, it has
adopted the system of territorial representation for the election of members to the Lok
Sabha.

Under territorial representation, every member of the legislature represents a geographical

area known as a constituency. From each constituency, only one representative is elected.
Hence such a constituency is known as single-member constituency. In this system, a
candidate who secures majority of votes is declared elected. This simple majority system of
representation does not represent the whole electorate. In other words, it does not secure due
representation to minorities (small groups).

The system of proportional representation aims at removing the defects of territorial

representation. Under this system, all sections of the people get representation in proportion
to their number. Even the smallest section of the population gets its due share of
representation in the legislature.

There are two kinds of proportional representation, namely, single transferable vote system
and list system. In India, the first kind is adopted for the election of members to the Rajya
Sabha and state legislative council and for electing the President and the Vice-President.

Though some members of the Constituent Assembly had advocated the system of
proportional representation for the election of members to the Lok Sabha, the Constitution
has not adopted the system due to two reasons.

5
1. Difficulty for the voters to understand the system (which is complicated) due to low
literacy scale in the country.

2. Unsuitability to the parliamentary government due to the tendency of the system to

multiply political parties leading to instability in government.

Additionally, the system of proportional representation has the following demerits:

1. It is highly expensive.

2. It does not give any scope for organising by-elections.

3. It eliminates intimate contacts between voters and representatives.

4. It promotes minority thinking and group interests.

5. It increases the significance of party system and decreases that of voter.

6
Council of States (Rajya Sabha)
Background
Parliament of India consists of the President and the two Houses- the Council of
States (Rajya Sabha) and the House of the People(Lok Sabha). While the two
Houses continue to be reorganized as the Council of States and the House of the
People in the constitution, they are in actual practice known respectively as the
Rajya Sabha and the Lok sabha. On 23August 1954, the Chairman of the Council
of States, Dr. Sarvepalli Radhakrishna made an announcement in the Council about
the adoption of Hindi name of the Council of States as ‘Rajya Sabha’. Earlier, on
14 May 1954, the Speaker, Lok Sabha, Shri G.V.Mavalanker made an
announcement in the House that the House of the People would thereafter be
known as ‘Lok Sabha’.

The origin of the second Chamber can be traced to the Montague-Chelmsford

Report of 1918. The Government of India Act, 1919 provided for the creation of a
‘Council of State’ as a second chamber of the then legislature with a restricted
franchise which actually came into existence in 1921. The Governor-General was
the ex-officio President of the then Council of State. The Government of India Act,
1935, hardly made any changes in its composition.

The Constituent Assembly which first met on 9 December 1946, also acted as the
Central Legislature till 1950, when it was converted as ‘Provisional Parliament’.
During this period, the Central Legislature which was known as Constituent
Assembly (Legislature) and later Provincial Parliament was unicameral till the first
election was held in 1952. Extensive debates regarding the utility or otherwise of
a Second Chamber in Independent India Ultimately; it was decided to have a
bicameral legislature for independent India mainly because a federal system was
considered to be most feasible form of Government for such a vast country with
immense diversities. A single directly elected House, in fact, was considered
inadequate to meet the challenges that free India would face. A second chamber
known as the ‘Council of States’, therefore, was created with altogether different
composition and method of election from that of the directly elected ‘House of the
People’. It was conceived as the other Chamber, with smaller membership than the
House of the People. It was meant to be the federal chamber i.e., a House elected
by the elected members of Assemblies of the States and three Union Territories in
which States were not given equal representation. Unlike several other countries
which provide equal representation to all the States in the Upper House, in the

1
Rajya Sabha . States have unequal representation as they are represented in
proportion to their population. Apart from the elected members, provision was
also made for the nomination of twelve members to the House by the President.
The minimum age of thirty years was fixed for membership as against twenty-five
years for the Lower House. The element of dignity and prestige was added to the
Council of State by making the Vice-President of India ex-officio Chairman of the
Rajya Sabha. who presides over its sittings.

Constitutional Provisions relating to Rajya Sabha

Composition/Strength

Article 80 of the Constitution lays down the maximum strength of Rajya Sabha as
250, out of which 12 members are nominated by the President and 238 are
representatives of the States and of the two Union Territories. The present strength
of Rajya Sabha, however, is 245, out of which 233 are representatives of the States
and Union territories of Delhi Puducherry and Jammu and Kashmir w.e.f.
31.10.2019 and 12 are nominated by the President. The members nominated by the
President are persons having special knowledge or practical experience in respect
of such matters as literature, science, art and social service.

Allocation of Seats

The Fourth Schedule to the Constitution provides for allocation of seats to the
States and Union Territories in Rajya Sabha. The allocation of seats is made on
the basis of the population of each State. Consequent on the reorganization of
States and formation of new States, the number of elected seats in the Rajya Sabha
allotted to States and Union Territories has changed from time to time since 1952.

Eligibility

Qualifications

Article 84 of the Constitution lays down the qualifications for membership of

Parliament. A person to be qualified for the membership of the Rajya Sabha
should posses the following qualifications:

1. he must be a citizen of India , and makes and subscribes before some

person authorized in that behalf by Election Commission an oath or
affirmation according to the form set out for the purpose in the Third
Schedule to the Constitution.

2
 2. he must be not less than 30 years of age;
3. he must possess such other qualifications as may be prescribed in that behalf
by or under any law made by Parliament.

Disqualifications

Article 102 of the Constitution lays down that a person shall be disqualified for
being chosen as, and for being, a member of either House of Parliament –

1. if he holds any office of profit under the Government of India or the

Government of any State, other than an office declared by Parliament by law
not to disqualify its holder;
2. if he is of unsound mind and stands so declared by a competent court;
3. if he is an undischarged insolvent;
4. if he is not a citizen of India, or has voluntarily acquired the citizenship of a
foreign State, or is under any acknowledgement of allegiance or adherence
to a foreign State;
5. if he is so disqualified by or under any law made by Parliament.
Explanation- [For the purposes of this clause] a person shall not be deemed to hold
an office of profit under the Government of India or the Government of any State
by reason only that he is a Minister either for the Union or for such State.

Besides, the Tenth Schedule to Constitution provides for disqualification of the

members on ground of defection. As per the provisions of the Tenth Schedule, a
member may be disqualified as a member, if he has voluntarily given up the
membership of such political party; or if he votes or abstains from voting in the
House contrary to any direction issued by the political party to which he belongs,
unless such voting or abstention has not been condoned by the political party
within fifteen days. A member elected as an independent candidate shall be
disqualified if he joins any political party after his election.

A member nominated to the House by the President, however, is allowed to join a

political party if he/she does so within the first six months of taking seat in the
House.

A member shall not be disqualified on this account, if he voluntarily gives up the

membership of his political party after he is elected Deputy Chairman, Rajya
Sabha.

3
Process for Election/Nomination

Electoral College:

The representatives of the States and of the Union Territories in the Rajya Sabha
are elected by the method of indirect election. The representatives of each State
and three Union territories are elected by the elected members of the Legislative
Assembly of that State and by the members of the Electoral College for that Union
Territory respectively, in accordance with the system of proportional
representation by means of the single transferable vote. The Electoral College for
the National Capital Territory of Delhi consists of the elected members of the
Legislative Assembly of Delhi, and that for Puducherry and Jammu Kashmir
consists of the elected members of the respective Legislative Assemblies.

Biennial/Bye-election

Rajya Sabha is a permanent House and is not subject to dissolution.

However, one-third Members of Rajya Sabha retire after every second year. A
member who is elected for a full term serves for a period of six years and on the
expiration of this term retires from the membership of Rajya Sabha. The election
held to fill a vacancy arising otherwise than by retirement of a member is called
‘Bye-election’. A member elected in a bye-election remains a member only for the
remainder of the term of the member whose resignation or death or disqualification
under the Tenth Schedule led to the vacancy.

Presiding Officers - Chairman and Deputy Chairman

The Presiding Officers of Rajya Sabha have the responsibility to conduct the
proceedings of the House. The Vice-President of India is ex-officio Chairman of
Rajya Sabha. Rajya Sabha also chooses from amongst its members, a Deputy
Chairman. There is also a Panel of Vice-Chairmen in Rajya Sabha,who are
nominated by the Chairman, Rajya Sabha from the amongst the members of Rajya
Sabha. In the absence of the Chairman and Deputy Chairman, a member from the
Panel of Vice-Chairmen presides over the proceedings of the House.

Secretary-General

The Secretary-General is appointed by the Chairman of Rajya Sabha and holds

rank equivalent to the highest civil servant of the Union. The Secretary-General
works with anonymity and is readily available to the Presiding Officers for
rendering advice on parliamentary matters. The Secretary-General is also the

4
administrative head of the Rajya Sabha Secretariat and the custodian of the records
of the House. He works under the direction and control of the Chairman, Rajya
Sabha.

Relation between the two Houses

Under Article 75(3) of the Constitution, the Council of Ministers is collectively

responsible to the House of the People (Lok Sabha) which means Rajya Sabha
cannot make or unmake the Government. It can, however, exercise control over
the Government and this function becomes quite prominent, particularly when the
Government does not enjoy majority in Rajya Sabha.

To resolve a deadlock between the two Houses, in case of an ordinary legislation,

the Constitution provides for the joint sitting of both Houses. In fact, there have
been three occasions in the past when the Houses of Parliament had met in joint
sitting to resolve differences between them. Issues in joint sitting are decided by a
majority of the total number of members of both Houses present and voting. The
joint sitting is held in the Central Hall of Parliament House presided over by the
Speaker, Lok Sabha. However, in the case of a Money Bill, there is no provision in
the Constitution for a joint sitting of both Houses as Lok Sabha clearly enjoys pre-
eminence over Rajya Sabha in financial matters. As regards a Constitution
Amendment Bill, it has been provided in the Constitution that such a Bill has to be
passed by the specific majority, as prescribed under article 368 of the Constitution,
by both Houses. There is, therefore, no provision for resolving a deadlock between
the two Houses in regard to a Constitution Amendment Bill.

Ministers may belong to either House of the Parliament. The Constitution does not
make any distinction between the two Houses in this regard. The Ministers have
the right to speak and take part in the proceedings of either House but are entitled
to vote only in the House of which they are members.

With regard to powers, privileges and immunities of the Houses of Parliament,

their members and committees thereof, the two Houses are placed absolutely on
equal footing by the Constitution.

Other important matters in respect of which both Houses enjoy equal powers are
election and impeachment of the President, election of the Vice-President,
approving the proclamation of Emergency, the proclamation regarding failure of
constitutional machinery in States and financial emergency. In respect of receiving
reports and papers from various statutory authorities, etc., both Houses have equal
powers.
5
Except in the case of collective responsibility of the Council of Ministers and
certain financial matters, which fall in the domain of Lok Sabha only, both Houses
enjoy equal powers.

Special Powers of Rajya Sabha

The Council of States (Rajya Sabha), has its own distinctive features. Rajya Sabha
being a federal chamber enjoys certain special powers under the Constitution. All
the subjects/areas regarding legislation have been divided into three Lists - Union
List, State List and Concurrent List. Union and State Lists are mutually exclusive -
The Parliament cannot legislate on a matter placed in the State List in normal
circumstances. However, if Rajya Sabha passes a resolution by a majority of not
less than two-thirds of members present and voting saying that it is "necessary or
expedient in the national interest" that Parliament should make a law on a matter
enumerated in the State List, Parliament becomes empowered to make a law on the
subject specified in the resolution, for the whole or any part of the territory of
India. Such a resolution remains in force for a maximum period of one year but
this period can be extended by one year at a time by passing a similar resolution
further.

If Rajya Sabha passes a resolution by a majority of not less than two-thirds of the
members present and voting declaring that it is necessary or expedient in the
national interest to create one or more All India Services common to the Union and
the States, Parliament becomes empowered to create by law such services.

Under the Constitution, the President is empowered to issue Proclamations in the

event of national emergency, in the event of failure of constitutional machinery in
a State, or in the case of financial emergency. Every such proclamation has to be
approved by both Houses of Parliament within a stipulated period. Under certain
circumstances, however, Rajya Sabha enjoys special powers in this regard. If a
Proclamation is issued at a time when Lok Sabha has been dissolved or the
dissolution of Lok Sabha takes place within the period allowed for its approval,
then the proclamation remains effective, if the resolution approving it is passed by
Rajya Sabha within the period specified in the Constitution under Articles 352, 356
and 360.

Rajya Sabha in Financial Matters

A Money Bill can be introduced only in Lok Sabha. After it is passed by that
House, it is transmitted to Rajya Sabha for its concurrence or recommendation.
The power of Rajya Sabha in respect of such a Bill is limited. Rajya Sabha has to
6
return such a Bill to Lok Sabha within a period of fourteen days from its receipt. If
it is not returned to Lok Sabha within the said period of fourteen days the Bill is
deemed to have been passed by both Houses at the expiration of the said period in
the form in which it was passed by Lok Sabha. Rajya Sabha cannot amend a
Money Bill; it can only recommend amendments and Lok Sabha may either accept
or reject all or any of the recommendations made by Rajya Sabha.

Apart from Money Bills, certain categories of Financial Bills also cannot be
introduced in Rajya Sabha. There are, however, some types of Financial Bills on
which there is no limitation on the powers of the Rajya Sabha. These Bills may be
initiated in either House and Rajya Sabha has powers to reject or amend such
Financial Bills like any other ordinary Bill. Of course, such Bills cannot be passed
by either House of Parliament unless the President has recommended to that House
the consideration thereof.

Despite the limited role, Rajya Sabha does have a bearing on matters relating to
finance. The Budget of the Government of India is laid every year before Rajya
Sabha also and its members discuss it. Though Rajya Sabha does not vote on
Demands for Grants of the Ministries/Departments - a matter exclusively reserved
for Lok Sabha - no money, however, can be withdrawn from the Consolidated
Fund of India unless the Appropriation Bill has been passed by both the Houses.
Similarly, the Finance Bill is also brought before Rajya Sabha. Besides, the
Department-related Parliamentary Standing Committees that examine the annual
Demands for Grants of the Ministries/Departments are joint committees consisting
of members from Lok Sabha and Rajya Sabha.

Leader of the House

Apart from the Chairman and the Deputy Chairman, Leader of the House is an
important Parliamentary functionary who plays an important role in the efficient
and smooth conduct of the business in the House. The Leader of the House in
Rajya Sabha is normally the Prime Minister, if he/she is its member or a Minister
who is a member of the House and is nominated by the Prime Minister to function,
as the leader of the House.

The primary responsibility of the Leader of the House is to maintain coordination

amongst all sections of the House for a harmonious and meaningful debate in the
House. For this purpose, he remains in close contact not only with the
Government but also with the Opposition, individual ministers and the Presiding

7
Officer. He occupies the first seat (first row) in the Chamber at the right side of
the Chair so that he is easily available to the Presiding Officer for consultation.

As per the Rules of Procedure and Conduct of Business in the Council of States,
the Chairman consults the Leader of the House with regard to the arrangement of
Government business in the House, allotment of days or allocation of time for
discussion on the President’s Address, discussion on Private Members’ business on
any day other than Friday, discussion on No Day-Yet-Named Motions, Short
Duration Discussions and consideration and return of a Money Bill. He is also
consulted by the Chairman in the matter of adjournment or otherwise of the House
for the day in case of death of an outstanding personality, national leader or
international dignitary.

In the era of coalition governments, the task of the Leader of the House has
become more challenging. He ensures that all possible and reasonable facilities are
made available to the House for a meaningful discussion on any matter that is
brought before it. He works as the spokesperson of the House in expressing sense
of the House and represents it on ceremonial or formal occasions.

The following members have been the Leaders of the House in the Rajya Sabha:

Name From To
1. Shri N. Gopalaswami Ayyangar May 1952 Feb. 1953
2. Shri Charu Chandra Biswas Feb. 1953 Nov. 1954
3. Shri Lal Bahadur Shastri Nov. 1954 March 1955
4. Shri Govind Ballabh Pant March 1955 Feb. 1961
5. Hafiz Mohammad Ibrahim Feb. 1961 Aug. 1963
6. Shri Yashwantrao Balwantrao Chavan Aug. 1963 Dec. 1963
7. Shri Jai Sukh Lal Hathi Feb. 1964 March 1964
8. Shri M.C. Chagla March 1964 Nov. 1967
9. Shri Jai Sukh Lal Hathi Nov. 1967 Nov. 1969
10. Shri Kodradas Kalidas Shah Nov. 1969 May 1971
11. Shri Uma Shankar Dikshit May 1971 Dec. 1975
12. Shri Kamlapati Tripathi Dec. 1975 March 1977
13. Shri Lal K. Advani March 1977 Aug. 1979
14. Shri K.C. Pant Aug. 1979 Jan. 1980
15. Shri Pranab Mukherjee Jan. 1980 July 1981

8
 Name From To
Aug. 1981 Dec. 1984
16. Shri Vishwanath Pratap Singh Dec. 1984 April 1987
17. Shri N.D. Tiwari April 1987 June 1988
18. Shri P. Shiv Shanker July 1988 Dec. 1989
19. Shri M.S. Gurupadaswamy Dec. 1989 Nov. 1990
20. Shri Yashwant Sinha Dec. 1990 June 1991
21. Shri S.B. Chavan July 1991 April 1996
22. Shri Sikander Bakht 20th May 1996 31st May 1996
23. Shri Inder Kumar Gujral June 1996 Nov. 1996
24. Shri H.D. Deve Gowda Nov. 1996 April 1997
25. Shri Inder Kumar Gujral April 1997 March 1998
26. Shri Sikander Bakht March 1998 Oct. 1999
27. Shri Jaswant Singh Oct. 1999 May 2004
June 2004 May,2009
28. Dr. Manmohan Singh
May 2009 May,2014
29. Shri Arun Jaitley June, 2014 April, 2018
April, 2018 May, 2019

June,2019 July, 2021

30 Shri Thaawarchand Gehlot

31. Shri Piyush Goyal July,2021 till date

Leader of the Opposition (LOP)

The office of the Leader of the Opposition in a legislature is of immense public

importance. Its importance emanates from the central role accorded to the
Opposition in a parliamentary democracy. The role of Leader of the Opposition is
in fact very challenging as he has to ensure accountability of the government to
the legislature and to the public and present alternatives to government
proposals/policies. He has to be a very skilled parliamentarian to fulfill this special
responsibility to Parliament and to the nation.

9
There was no Leader of the Opposition in Rajya Sabha in real sense of the term till
the year 1969 till than the practice was to call the Leader of the party in Opposition
having the largest number of the members as the Leader of the Opposition, without
according him any formal recognition, status or privilege. The office of Leader of
the Opposition was given official recognition through the Salary and Allowances
of Leaders of the Opposition in Parliament Act, 1977. According to the said Act,
the Leader of the Opposition should satisfy three conditions, namely, (i) he should
be a member of the House (ii) the Leader in Rajya Sabha of the party in opposition
to the Government having the greatest numerical strength and (iii) be recognized as
such by the Chairman, Rajya Sabha.

The following members have been the Leaders of the Opposition in the
Rajya Sabha:

Name From To
1 Shri Shyam Nandan Mishra Decermber 1969 March 1971
2 Shri M. S. Gurupadaswamy March 1971 April 1972
3 Shri Kamlapati Tripathi 30.3.1977 15.2.1978
4 Shri Bhola Paswan Shastri 24.2.1978 23.3.1978
23.3.1978 2.4.1978
5 Shri Kamlapati Tripathi
18.4.1978 8.1.1980
6 Shri Lal K. Advani 21.1.1980 7.4.1980
7 Shri P. Shiv Shanker 18.12.1989 2.1.1991
8 Shri M. S. Gurupadaswamy 28.6.1991 21.7.1991
9 Shri S. Jaipal Reddy 22.7.1991 29.6.1992
7.7.1992 10.4.1996
10 Shri Sikander Bakht
10.4.1996 23.5.1996
11 Shri S. B. Chavan 23.5.1996 1.6.1996
12 Shri Sikander Bakht 1.6.1996 19.3.1998
13 Dr. Manmohan Singh 21.3.1998 21.5.2004
3.6.2004 4.7.2004
14 Shri Jaswant Singh
5.7.2004 16.5.2009
15 Shri Arun Jaitley 3.6.2009 26.5.2014
16 Shri Ghulam Nabi Azad 8.6.2014 10.02.2015
16.2.2015 15.2.2021
17. Shri Mallikarjun Kharge 16.2.2021 till date

10
Rajya Sabha plays a very constructive and effective role in our polity. Its
performance in the legislative field and in influencing the Government policies has
been quite significant. Rajya Sabha has, in fact, worked in a spirit of cooperation
with Lok Sabha as per the Constitutional mandate. Rajya Sabha has prevented
hasty legislation and has served as dignified chamber representing the federal
principle. As a federal chamber, it has worked for the unity and integrity of the
nation and has reinforced the faith of the people in parliamentary democracy.

11
 THE UNION EXECUTIVE [PART V, ARTICLES 52-72]

THE PRESIDENT

Article 52 provides that there shall be a President of India.

• The president is the head of Indian state. He is first citizen of India

Executive power of union article 53

• Article 53 provides that executive power of the union shall be vested in the
president and shall be exercised by him either directly or through officers
subordinate to him in accordance with the constitution.

• The president shall be supreme commander of Defence forces in India.

Election of president article 54

• Article 54 provides that president shall be elected by the members of electoral

college consisting of:

A. Elected members of both houses of parliament and

B. Elected members of Legislative assemblies of state

• State includes the national capital territory of Delhi and union territory of
Pondicherry. It means that elected members of Legislative assemblies of NCT of
 Delhi and union territory of Pondicherry shall also be eligible to vote in the
election of president.

• Member who do not participate in election of president: it is to be

noted that

1. nominated members of both the houses of parliament; and

2. nominated members of state legislative assembly; and

3. members both elected and nominated of state legislative council[ in case

of bicameral Legislature] and

4. Nominated members of legislative assemblies of Delhi and Puducherry do

not participate in the election of president.

• Article 55

• Provides that there shall be uniformity in the scale of Representation of different

states as well as parity between the state as whole and union at the election of the
president.

• the president election is held in accordance with the system of proportional

representation by the means of Single Transferable Vote and the voting is by
secret ballot[ article 55(3)]

• Term, Resignation And Re Election [Article 56]

• Provides that president shall hold office for the term of five years from the date
on which he enters upon his office.

• the president may resign by addressing his resignation to the vice president

• The president may for violation of constitution be removed from office by

impeachment in the manner provided in article 61.

• The president shall not withstanding the expiration of his term, continue to hold
the office until his successor enters upon his office.

• Resignation address to vice president shall be communicated by him to the

speaker of the house of people.

• Resignation

• President Vice President Speaker

 • Article 57 provides that the person who holds or has held the office of president
shall subject to the other provisions of the Constitution be eligible for re-election
to that office.

Qualification for the election of president [article 58]

• Article 58 provides that following shall be the qualification for election of

president.

1. He should be a citizen of India.

2. He should have completed 35 years of age.

3. He should be qualified for election as a member of Lok Sabha.

4. He should not hold any office of profit under the union government or any
State government or any local authority or any other public authority.

• A sitting president or vice president of the union, the governor of any state and a
Minister of the union or any state is not deemed to hold any office of profit and
hence qualified as presidential candidate.

Conditions of president's office [article 59]

• Article 59 provides that the president shall not be a member of either the
House of Parliament or of the House of Legislature of any state.

• If a member of either House of Parliament or of house of the Legislature

of any state be elected president, he shall be deemed to have vacated his
office in that house on the date on which he enters upon his office as a
president.

• The president shall not hold any other office of profit.

• The president shall be entitled without payment of rent to the use of his
official residence and shall be also entitled to search emoluments,
Allowances and privileges as maybe determined by the Parliament by law.

• The emoluments and allowances of president shall not be diminished

during his term of office.

Oath or affirmation by president [article 60]

• Article 60 provides that before entering upon his office, the president has to
make and subscribe to an oath or affirmation. In his oath the president swears:

1. To faithfully execute the office.

 2. To preserve, protect and Defend the constitution and law; and

3. To devote himself to the service and well-being of the people of India.

• The Oath of the office of president is administered by Chief Justice of India and
in his absence, the senior most judge of Supreme Court available.

• Any other person acting as a president or discharging the functions of the

president also undertake the similar oath or affirmation.

Impeachment of the president [article 61]

• Article 61 provides the procedure for impeachment of president.

• Grounds: president is impeached on the ground of violation of constitution. The

constitution does not define the meaning of phase ‘violation of the constitution’.

• The impeachment charges can be initiated by either House of the Parliament.

• 14 days prior notice

• These charges should be signed by one fourth member of the house (that framed
the charges).

• The president has the right to appear and to be represented at such investigation.

• If the other house also sustains the charges and passes the impeachment
resolution by a majority of two third and total memberships, then the president
stands removed from his office from the date on which the resolution is
so passed.

• in context of impeachment, two things should be noted:-

1. The nominated members Of either House of Parliament can participate in

impeachment of the president though they do not participate in his
election;

2. The elected member of legislative assemblies of the states and union

territories of Delhi and Puducherry do not participate in the impeachment
of president do they participate in his election.

• Till date no president has been impeached.

Vacancy, time for holding election etc [article 62]

 • Article 62 provides that an election to fill a vacancy caused by expiration of the
term of office of president shall be completed before the expiration of the term of
the president.

• vacancy in president's office

1. On expiry of his tenure of 5 year

2. by his resignation

3. on his removal by the process of impeachment

4. by his death

5. Otherwise [when he becomes disqualified to hold the office or when his

election is declared void].

• In the case of any delay in conducting the elections of new president by any
reason, the outgoing president continues to hold office the on his term of 5 years
until his successor assumes the charge. It is to be noted that in this situation the
Vice-President does not get an opportunity to act as a president.

• If the office false vacant by resignation, removal, death or otherwise, then the
election to fill the vacancy should be held within six months from the date of
occurrence of such a vacancy.

• The newly elected president remains an office for a full term of five years from
the date he assume the charge of his office.

Situations where vice president act as a president article 65

• When a vacancy occurs in the office of president due to his resignation, removal,
death or otherwise, the vice president acts as the President until our new
President is elected article 65(1).

• When the sitting president is unable to discharge is function due to absence,

illness or any other cause the vice president discharges his functions until the
president resumes his office article 65(2)

• in the case of office of vice president is vacant, the Chief Justice of India for if his
office is also vacant the senior most judge of Supreme Court available acts as the
President of discharges the functions of president.
Powers of president

1. Executive Power
2. Legislative Power
3. Financial Powers
4. Judicial Power
5. Military Powers
6. Diplomatic Powers

• Executive powers:

• Powers of the union Vest in the president. few important executive powers
and functions of President are:

i. All executive actions of Government of India are formally taken in the name
of president [article 77]

ii. Appoints the Prime Minister and other ministers. they hold office during
his pleasure [article 75 (1)]

iii. He appoints office bearers of constitutional post like the governor of state,
Attorney General of India, Comptroller and Auditor General of India, the
election commissioner and other Election Commissioner, the Chairman and
members of Union Public Service Commission the Chairman and member of
finance commission etc.

iv. he can appoint commissions to investigate into conditions of SC ST and

other backward classes[ article 338, 338 a 338 b]

v. He can appoint the Interstate Council to promote Centre state and

interested Corporation.[263]

vi. He directly administers union territories through administrator appointed

by him.[239]

vii. He can declare any area as scheduled area and has powers with respect to
administration of Scheduled Areas and tribal areas.[244(1) V SCHEDULE]
• Legislative powers

Following are the few important legislative powers of the president:-

1. He can summon of prorogue the Parliament and dissolve the Lok Sabha.
article 85 [1]

2. He can summon a joint sitting of both the houses of parliament [article

108]

3. He can appoint any member of Lok Sabha to preside over its proceedings
when the offices of both the speaker and deputy speaker fall vacant.
Similarly he can also appoint any member of Rajya Sabha to preside over
its proceedings when the offices of both the Chairman and Deputy
Chairman fall vacant.

4. nominates 12 members of Rajya Sabha from person having special

knowledge or practical experience in Literature, science, art and social
service [article 80(3)]

5. He can nominate two members of Lok Sabha from Anglo Indian

community article 331. Repealed by 104th constitutional amendment
2019.

6. He decides on question as to disqualification of members of parliament in

consultation with election commission (article 103).

7. when a bill is sent to the president after it has been passed by the
parliament he can Give his assent to the bill or

a. withhold his assent to the bill or

b. Return the bill [if it is not a money bill] for reconsideration of the
Parliament.

c. if the bill is passed Again by the parliament, with or without amendment,

the president has to give his assent to the bill [article 111]

8. He can promulgate Ordinance is when Parliament is not in session

Military Powers

Article 53 also states that the President shall be the Supreme Commander of all the
Armed Forces of the Union of India. It also states that no specific provisions can reduce
the scope of this general principle.

As the Supreme Commander of the Armed Forces of the Union, President has powers
regarding:

• Appointment of all the officers, including the appointment of the chiefs of the
forces;

• Wars are waged in the name of the President;

• Peace is concluded in the name of the President.

Diplomatic Powers

The President forms the face of Indian diplomacy and helps the nation to maintain
cordial relationships with countries across the globe.

• All the Ambassadors and high commissioners in foreign nations are his
representatives;

• He receives the credentials of the Diplomatic representatives of other nations;

• Prior to ratification by Parliament, the treaties and agreements with other

nations are negotiated by the President.

Ordinance making power of the President: Article 123

Article 123 talks about the presidential powers to promulgate ordinances. An ordinance
can be promulgated if:

• neither of the House of the Parliament is in session;

• And the President feels a need for immediate action.

The ordinance which is promulgated by the President will have the same effect as that of
an act or law of the Parliament.

The essential conditions to be met by an ordinance are:

• It shall be presented before both the Houses of Parliament for passing when it
comes to the session;
• The ordinance shall cease to operate six weeks after the date of
reassembling of the parliament;

• The ordinance may also expire if the resolutions disapproving it are passed by
both the Houses of Parliament;

• Therefore every Ordinance issued by the president during the Recess of

Parliament must be laid before both the houses of Parliament when it
reassembles. if the ordinance is approved by both the houses it becomes an act
and if Parliament takes no action at all, all the ordinance ceases to operate on
expiry of 6 Weeks from reassembly of parliament.

• It can be withdrawn at any time by the President;

• The ordinance must be in consonance to the Constitution of India

else it shall be declared void.

• It is to be noted an ordinance made when both the houses are in session is

void. Thus the power of the president to legislate by Ordinance is not a parallel
power of legislation.

• Grounds of promulgation he can make an ordinance only when he is

satisfied that the circumstances exist that render it necessary for him to take
immediate action.

• In RC Cooper vs. Union of India 1970 the supreme court held that the
president's satisfaction can be questioned in a court on the ground of
malafide.

• In A K Roy versus Union of India the supreme court held that Ordinance
would be subject to the test of vagueness, arbitrariness, reasonableness and
Public Interest.

• Scope of Ordinance making power is coextensive with that of Legislative

powers of parliament. It means that an ordinance can be issued only on those
subjects on which Parliament can make laws.

• The ordinance making power of the president is not a discretionary power,

and he can promulgate or withdraw an ordinance only on the advice of
Council of Ministers headed by the Prime Minister.

• In D C Wadhwa vs. State of Bihar 1987 the Supreme Court ruled that
successive Re promulgation of Ordinance without any attempt to get the Bill
passed by the Assembly would amount to fraud on constitution and the
ordinance so promulgated is liable to be struck down. it held that the
 exceptional power of law making through Ordinance cannot be used as a
substitute for legislative powers of state legislative assembly.

Financial Roles

• Money bills can be introduced in the Parliament only with the prior
recommendation of president [article 109 and 110]

• He Causes to be laid before the Parliament the annual financial statement that
is the union budget [article 112]

• The Contingency Funds of India are at the disposal of the President. He can
make advances out of the contingency fund of India to meet any unforeseen
expenditure. [ART 267]

• He also causes the presentation of audits in the Parliament. [151]

• He constitutes a finance commission after every five years to recommend the

distribution of revenues between the centre and the states [article 280]

Judicial powers

The President enjoys the following privileges as his judicial powers:

• He can rectify the judicial errors;

• He exercises the power of grant of pardons and reprieves of punishments; or

suspend, remit or commute sentences of any person convicted of any offence.

• President can seek the advice of Supreme Courts on: article 143

1. Legal matters,

2. Constitutional matter,

3. Matters of national importance.

So he can seek advice from the Supreme Court on any question of law or fact.
However the advice tendered by the Supreme Court is not binding on the
president.

Pardoning power: Article 72

Article 72 provides for the provisions relating to the pardoning powers of the President.
President can grant pardons, respites, reprieves, and remissions of punishments or
remit suspend or commute the sentence given to a person by the court in the following
cases:

• When the sentence is granted through a court-martial;

• When the sentence or punishment is given for offense of violation of any law
relating to matters that fall in the ambit of Union’s executive powers;

• When a death sentence is passed by a court.

• Pardon: it removes both the sentence and the conviction and completely
absolved the Convict from all sentences punishments and disqualification

• Commutation: it denotes the substitution of one form of punishment for a

lighter form. For example a death sentence may be commuted to rigorous
imprisonment.

• Remission: it applies reducing the period of sentence without changing its

character. for example sentence of rigorous imprisonment for two years may
be limited to a rigorous imprisonment for one year

• Respite: it denotes awarding a lesser sentence in place of one originally

awarded due to some special facts such as physical disability of a Convict for
pregnancy of a women offender.

• Reprieve: it implies a stay of execution of sentence [especially that of death]

for a temporary period. Its purpose is to enable the convict to have time to
seek pardon or commutation from the president.

In Maru Ram v Union of India, Supreme Court held that pardoning power under
Article 72 is to be exercised by the President, on the advice of the Central Government
and not on his own will and that the advice is binding on the head of the Republic.

Pardoning Power: subject to judicial review

In Kuljit Singh Alias Ranga Vs Lt. Governor of Delhi & Ors In this case, death
sentence of one of the appellants was confirmed by the Supreme Court. His mercy
petition was also rejected by the President. Then, the appellant filed a writ petition in
the Supreme Court challenging the discretion of the President to grant pardon on the
ground that no reasons were given for rejection of his mercy petition. The court
dismissed the petition and observed that the term “pardon” itself signifies that it is
entirely a discretionary remedy and grant or rejection of it need not to be reasoned.
In Kehar Singh vs. Union of India and Anr 1989: the Supreme Court held that
while exercising the pardoning power of president can scrutinize the evidence on record
and can come to a different conclusion. In doing so the president does not modify or
supersede the judicial records. The petition for Mercy has no right to an oral hearing by
the president.

In Epuru Sudhakar vs. government of Andhra Pradesh 2006 the Supreme

Court held that pardoning power of president under article 72 and of governor under
article 161 are subject to judicial review. Pardoning cannot be exercised on the basis of
caste and political reasons.

Articles 72 and 161 of Constitution

Article 161 grants the power to the Governor of the state to suspend, remit or commute
sentences of the offenders in certain cases relating to a violation of provisions or laws to
which the executive power of the state extends.

Article 72 Article 161

Grants power to the President of India. Grants powers to the Governor of

state.

The power is wider in scope. The scope of powers is narrower.

The powers of pardon extend to cases of Power cannot interfere with cases of
Court Martial as well. Court Martial.

Allows the President to grant pardon in Governor cannot grant pardon in

cases of death sentence. cases of death sentence.

Emergency Powers

Article 352 of the Constitution of India grants President, three kinds of emergency
powers as well:

• When a National Emergency is declared in case of external aggression or

internal armed rebellion, the President holds the powers to declare a state of
 emergency. Thus the President’s rule gets established in the country.
However, the prime minister and the Council of Ministers must recommend
such an emergency;

• When there exists a constitutional or law and order breakdown situation in a

state, the President may declare a state of emergency in such cases. The state
would then come under Governor’s rule;

• Whenever the financial stability of the nation or any country is seriously

affected, the President has the right to intervene and direct the state to check
and maintain public expenditure.

Privileges of the President: Article 361

Under Article 361, the President is protected from being answerable to any court for:

• For exercise and performance of his powers and duties of his office;

• For doing any act or claimed of doing any act in the exercise of those powers
and duties;

The conduct of the President can be reviewed only if either House of Parliament
designates or appoints any court tribunal or any other body to investigate the charges
under Article 61.

But it bars no person from bringing any valid proceeding against the Governor or
Government of India.

This Article immunes the President against all types of criminal proceedings during the
term of his office.

No issuance of any order relating to the arrest and imprisonment of the President can be
made by any court during his term of office.

A civil proceeding can be constituted against the president during his term of office if:

• The act is done or alleged to have been done, whether before or entering the
office of the President, by him was in his personal capacity;

• Two months prior notice is provided, to the president or was sent to his office,
stating:

1. The nature of the proceeding;

2. The cause of action;

 3. The details of the other party including name, description, and place
of residence;

4. The relief claimed by the other party;

Position of the President [art. 74(1)]

The position of the President has changed, with respect to his discretion to use his
power, has changed since the inception of the Constitution. The two major changes
came through the 42nd and 44th Amendment Act of the Constitution.

Prior to the 42nd Amendment Act of 1976

Prior to the 42nd amendment to the Constitution, the President was free to make
decisions based on his wisdom. He may also consider the Council of Ministers for their
advice on the action. As the Constitution at that time talks about constituting a Council
of Ministers with a Prime Minister, as its head, to aid and advise the President in
carrying out his duties.

After the 42nd Amendment Act, 1976

Later, the Constitution was amended to add the phrase that the President shall act on
the aid and advice of the council of ministers. But the provision was still ambiguous
whether the advice given by the Council of Ministers is binding on the president or not.

44th Amendment Act, 1978

This amendment was brought to swipe off the ambiguity created by the 42nd
amendment. This provision said that:

• President can send back the advice to the Council of Ministers for
reconsideration once;

• If the same advice is sent again without modifications by the Council then the
President is bound to accept it.
The Supreme Court of India: Composition, Power and Jurisdiction

It is the highest court of justice in India. It is the final platform for appeal in India. That is why it
is the most relevant topic for law exams and UPSC exams. Every judgement passed by the
Supreme Court is final and binding to all other courts. In this article, we will discuss the
composition, powers, jurisdiction and functions of the Supreme Court of India.

The Supreme Court of India

The Supreme Court is the apex court in the Indian judiciary. There is no court above the
Supreme Court. It has the highest authority to uphold the provisions of the constitution of India,
to protect the rights of the citizen of India and to protect the rule of law. The constitution of India
provides the Independence of Judiciary by giving the hierarchical setup which contains High
Courts and other subordinates courts.

History of the Supreme Court of India

Previously, the federal court of India was created under the Government of India Act, 1935. It
was considered as the apex court during the British time. This court was used to settle the
disputes between the federal states and provinces. This court was also used to hear the appeals
against the judgements given by High Courts.

After the independence of India, all the courts like Privy Council and federal court were replaced
by the Supreme Court of India. It was come in the existence in January 1950. At that time there
were 7 judges with the chief justice.

The constitution of India is the supreme law of the land and it contains the provisions which are
enforced by the law. But without any enforcement of the law, the provisions given under the
constitution were meaningless. That’s why the judiciary is independence so that it can interpret
the laws given under the constitution of India. Now, we can say that the supreme court of India
works as the guardian of the constitution of India and all the fundamental rights given to the
citizens of India.

Composition of Supreme Court

The article 124(1) of the constitution of India says that there shall be one Supreme Court in
India, which shall consist the Chief Justice of India, and other 34 judges including the Chief
Justice of India.

 The judges sit in benches of 2 or 3 is called a Division Bench

 The judges sit in benches of 5 or more is called a Constitutional Bench at the time where
there is a matter of fundamental questions of the law.

Bench to Decide the Cases

All the cases related to the Constitution of India shall be decided by the five judge’s bench
whereas the other cases are decided by at least three judges bench.

The seat of Supreme Court

Delhi is declared as the seat of SC of India. Though the CJI has the power to assign any place or
places as the seat of Supreme Court because this is an optional not mandatory.

Qualifications for the judges of Supreme Court of India:

The conditions to become the judge of the Supreme Court are given under Article 124(3) of the
Indian constitution.

 He must be a citizen of India. The person who is not a citizen of India cannot appear as a
candidate for the judge of the Supreme Court of India.
 If he is an eminent jurist.
 The person must be the judge of a high court for at least five years or more.
 He has practised as an advocate in a high court of India or as an advocate of two or more
High Court for at least 10 years.

Term of office of Judges of Supreme Court of India

The judges of SC hold the office until he attains the age of 65 years.

Independence of Judiciary

In India, the judiciary is known as the Independent. The constitution of India provides the
independence of the judiciary. Click to read the full article on Independence of judiciary.

Jurisdiction of Supreme Court of India

There are various types of the jurisdiction of SC:

Original jurisdiction (Article-131)

The SC has the original jurisdiction of several cases. These are the cases which cannot be heard
by other courts of justice. It includes the cases.
  The case between Government of India and one or more states of India.
 The case where the government of India and any state of states are one party and other
state or more than one state is a different party.
 A dispute arises between two or more states where the question is depending on the
existence of the legal right.

Conditions to appeal in the Supreme Court in civil cases

1. The civil case involves the substantial question of law

2. If the High Court opinion that the confliction arose in the case should be decided by the
Supreme Court.

Conditions to appeal in the Supreme Court in criminal cases

1. If the HC has reversed the acquittal order passed by session judge and give the death
sentence to the accused.
2. If the HC has withdrawn a criminal case for trial from any subordinate court and passed
the death sentence to the accused.
3. When the High court thinks that the case is fit for the appeal in the Supreme Court.

Normally, all the cases, where the interpretation of any article of the constitution is needed, the
SC hears the appeal in those cases. The Supreme Court can also take the cases suo-moto (on its
own).

Appellate jurisdiction (Article-132,133,134)

The Supreme Court is the highest court of appeal in India. It has the appellate jurisdiction in all
the cases of civil and criminal. All the cases decided in any high court of India have the
jurisdiction to appeal in the Supreme Court. The appeal for the cases can come before the SC
when High court issues a certificate for the effect.

Advisory jurisdiction (Article-143)

The supreme court of India has advisory jurisdiction. The president of India can seek advice
from the SC where the matter is legal and high public importance. The SC has the power to give
the opinion to the President but the president of India is not bound with the decision.

The jurisdiction in case of fundamental rights

The article 32 of the constitution of India has given the power to the Supreme Court to issue the
writs for the enforcement of the fundamental rights given under the constitution of India. That’s
why the SC acts as the guardian of the fundamental rights given to the citizens of India.
Final interpreter for the constitution of India

The constitution of India is the supreme law of the land in India. SC acts as the final guardian
and interpreter of the Constitution. The SC has the power to reject any law which is
unconstitutional. This is also known as the court’s power of judicial review.

Powers of the Supreme Court

 Power to punish for contempt of Court.

 Power to review own judgements- The Supreme Court is not binding to its own
decisions. It has the powers to review, change or revise its own decision.
 Appointment of ad hoc judges under article-127
 The jurisdiction in case of Electoral College -The Electoral College is used for the
election of the president and vice president of India. But if there is any confliction arises
during the elections, the Supreme Court has the power to hear that case and the decision
given by the Supreme Court will be final for the Electoral College.
 Appointment of retired judges of SC or HC- Article 128
 Appointment of acting Chief Justice-Article 126
 Revisory Jurisdiction under Article-137
 As a court of records-All, the cases decided in the Supreme Court are recorded. The
decision passed by the Supreme Court has the binding on all the courts in India. All the
High courts and other subordinate courts used the decisions and the judgements of the SC
to decide the case related to the judgement. The judgement passed by the Supreme Court
cannot be challenged by questioning.
 Special leave to appeal- The supreme court of India has the power to grant special leave
of appeal against the judgement, decree, order passed by any court or tribunal of India.

The procedure of the Supreme Court

 It has the power to make the rules regarding the functioning and procedures followed by
all the courts in India.
 With the approval of the President of India, the SC can lay down the conditions and
restrictions for its employees.
 When the office of president is vacant then it is the duty of the vice president to take the
responsibility of president office. But if somehow, the vice president is not there, the
Chief justice of India has the power to fill up the vacancy and can act as the president of
India for that period of time.

Can Supreme Court overrule President India?

The President of India cannot overrule the judgement passed by SC. It is the Parliament who can
amend any law to overrule the Judgement of the Supreme Court. The President has the power to
pardon power even in the decision given by the supreme court of India. But technically, here the
President is not overruling the Judgement, he only pardons the accused.

Conclusion

So it can be said that the supreme court of India is the most powerful court in India with having
the largest jurisdiction and the protector of the Constitution of India. It is playing an important
role in the evolution of the constitution of India by interpreting its articles and by invalidating the
unconstitutional laws.
 GOVERNOR, CHIEF MINISTER AND
STATE COUNCIL OF MINISTERS – AN
OVERVIEW
Prof. Karthik Shiva
VIT School of Law,
Vellore Institute of Technology, Chennai
 STATE EXECUTIVE

• Art. 153-167 of the COI – State Executive – Part VI

• The Union Executive consists of the
a) The Governor,
b) The Chief Minister,
c) The Council of Ministers and
d) The Advocate General
Head of the State – Art. 153 – Governor of the State
 GOVERNOR OF THE STATE

• Parallel pattern of government at the state level comprising of state executive

and state legislature i.e. Parliamentary Form

• Part VI of the Constitution of India – State Executive

• No office of Vice-Governor like Vice President

• Governor of the State – Nominal / Titular / Constitutional Head

• Also serves as an Agent of the Central Government

• Dual Role of Governor

• Separate Governor for each state usually – same person can hold governorship
in 2 or more states after 1956 (7th Constitution Amendment Act)
 GOVERNOR OF THE STATE

• Art. 153 – Governor of States

• Art. 154 – Executive Power the State

• Art. 155 – Appointment of Governor

• Art. 156 – Term of Office of the Governor

• Art. 157 – Qualifications for appointment as Governor

• Art. 158 – Conditions of Office of Governor

• Art. 159 – Oath or Affirmation by Governor

• Art. 160 – Discharge of functions of Governor in certain contingencies

• Art. 161 – Power of Governor to grant pardon, etc.

• Art. 162 – Extent of executive Power of the State

 APPOINTMENT OF GOVERNOR OF
THE STATE

• No election of Governor – Direct or Indirect by the people

• Appointed by President by warrant under his hand and seal

• Essentially a nominee of the Central Government

• Independent Constitutional Office – not under the control or

subordinate to the Central Government

• Idea of direct election of Governor was mooted akin to USA but

subsequently dropped in place a nominee system based on
Canadian model
 QUALIFICATIONS OF GOVERNOR
OF THE STATE

The Constitution lays down 2 qualifications for the appointment of

Governors

1. He should be a citizen of India

2. He should have completed 35 years of age

Constitutional Conventions

1. Outsider to the State  Free from Local Politics

2. Consultation with CM of State  Ensure smooth functioning

Both conventions have been violated in some cases

 CONDITIONS OF OFFICE OF
GOVERNOR

The Constitution lays down the following conditions for the the governor’s office:

1. He should not be a member of either House of Parliament or state legislature. Any such person
is appointed as governor vacates his seat on the date on which he enters his office as governor.

2. He should not hold any other office of profit.

3. He is entitled without payment of rent to the use of his official residence (the Raj Bhavan).

4. He is entitled to such emoluments, allowances and privileges as may be determined by

Parliament.

5. When the same person is appointed as the governor of two or more states, the emoluments and
allowances payable are shared by the states in such proportion as determined by the president.

6. His emoluments and allowances cannot be diminished during his term of office.
 PROTECTIONS, OATH AND TERM
OF OFFICE OF GOVERNOR
• The governor is also entitled to a number of privileges and immunities.

• He enjoys personal immunity from legal liability for his official acts.

• During his term of office, he is immune from any criminal proceedings, even in respect of his
personal acts. He cannot be arrested or imprisoned.

• After giving two months’ notice, civil proceedings can be instituted against him during his term
of office in respect of his personal acts.

• The oath of office to the governor is administered by the chief justice of the concerned state high
court and in his absence, the senior-most judge of that court available.

• A governor holds office for a term of five years from the date on which he enters upon his office.

• This term of five years is subject to the pleasure of the President.

• He can resign at any time by addressing a resignation letter to the President.

 POWERS OF THE GOVERNOR

• The Governor’s powers is many aspect such as executive, legislative, financial

and judicial powers more or less analogous to the President of India.

• But, he has no diplomatic, military or emergency powers like the president.

• The broad classification of the Governor’s power can be made as follows;

• Executive Power

• Legislative Power

• Financial Powers

• Judicial Powers
 CONSTITUTIONAL POSITION OF
THE GOVERNOR

The governor has constitutional discretion in the following cases:

1. Reservation of a bill for the consideration of the President.

2. Recommendation for the imposition of the President’s Rule in the state.

3. While exercising his functions as the administrator of an adjoining union territory (in
case of additional charge).

4. Determining the amount payable by the Government of Assam, Meghalaya, Tripura and
Mizoram to an autonomous Tribal District Council as royalty accruing from licenses
for mineral exploration.

5. Seeking information from the chief minister with regard to the administrative and
legislative matters of the state.
 CHIEF MINISTER AND COUNCIL OF MINISTERS

• State Executive in India is inspired by the British Westminster style

having a both a Head of the State and Head of the Government

• Head of the State Executive – Governor– Nominal (De Jure) Executive

• Head of the State Government – Chief Minister – Real (De facto)

Executive

• Article 163-167 deals with the CM and COM

 CHIEF MINISTER AND COUNCIL OF MINISTERS

• Art. 163  Council of Ministers to aid and advise Governor

• Art. 164  Other Provisions as to Ministers

• Art. 165  Advocate General of the State

• Art. 166  Conduct of business of Government of a State

• Art. 167  Duties of CM as respect the furnishing of information to the

President, etc.
 APPOINTMENT OF CHIEF MINISTER

• Art. 164  Governor to appoint the Chief Minister

• No specific procedure explicitly laid down under COI

• Constitutional Conventions dictate the appointment of CM  Leader of the majority

party in State Legislative Assembly

• No clear majority  Personal Discretion subject to certain conventions  Leader of

Largest Party or Coalition  With requirement to prove majority in LS  Vote of
Confidence

• CM can be member of State Legislative Assembly or Council  Predominantly SLA

 TENURE OF CHIEF MINISTER

• Term of the Chief Minister  Not fixed  Holds office during the
Pleasure of the Governor
• Does not mean that the Governor can dismiss the Chief Minister at any
time.
• Chief Minister enjoying majority support in the State Legislative Assembly
 Cannot be dismissed by the Governor
• CM loses the confidence of the State Legislature  Must Resign failing
which Governor can Dismiss him
• CM  Head of COM  Death/ Resignation/ Dismissal of CM dissolves
the Council of Ministers
 ROLE AND FUNCTIONS OF CHIEF MINISTER

The Chief Minister enjoys the following powers as Head of the Union council of
ministers:

1. Recommends persons for appointment as ministers by the Governor.

2. Allocates and reshuffles various portfolios among the ministers.

3. Can ask a minister to resign or advise the Governor to dismiss him.

4. Presides over the meeting of council of ministers and influences its decisions.

5. Guides, directs, controls, and coordinates the activities of all the ministers.

6. Can bring about the collapse of the council of ministers by resigning from office.
 ROLE AND FUNCTIONS OF CHIEF MINISTER

In Relation to the Governor enjoys the following powers in relation to the President:

1. He is the Principal channel of communication between the Governor and the council of ministers.
It is the duty of the prime minister:

A. to communicate to the Governor all decisions of the council of ministers relating to the
administration of the affairs of the Union and proposals for legislation;

B. to furnish such information relating to the administration of the affairs of the Union and
proposals for legislation as the Governor may call for; and

C. if the Governor so requires, to submit for the consideration of the council of ministers any
matter on which a decision has been taken by a minister but which has not been considered by the council.

2. He advises the Governor with regard to the appointment of important officials like Advocate General of
India, chairman and members of the SPSC, State Election commissioners, and so on.
 STATE COUNCIL OF MINISTERS

• Art. 163  Status of Council of Ministers

• Art. 164  Appointment, Tenure, Responsibility, Qualification, Oath, Salaries and Allowances
• CM and COM to aid and advise the Governor in the exercise of his functions
• 42nd and 44th Constitution Amendment Act  makes aid and advice binding on the
Governor
• Appointed on advice of CM by Governor  LA or LC Members  Non-members can
becomes minister but must be elected/nominated as MP within 6 months
• Minister  Right to speak and take part proceedings in both houses  Voting rights in
Single House  Art. 177
 FUNCTION AND COMPOSITION OF CENTRAL
COUNCIL OF MINISTERS
• Art. 163  CM and COM to always advise the President  Advice rendered by Ministers not to be enquired by
the Court  Exception discretionary powers of Governor

• Art. 164 (1)  Appointment by Governor on advice of CM  Mandatory appointment of Tribal Welfare
Minister in MP, Odisha, Chhattisgarh and Jharkhand

• Art. 164 (1)  Minister  COM  Pleasure of the Governor

• Art. 164 (1A)  CM and COM not to exceed 15% of LA

• Art. 164 (1B)  Not to be disqualified under anti-defection law to hold minister post

• Art. 164 (2)  COM collectively responsible to the Legislative Assembly  Principle of Collective
Responsibility

• Art. 164 (3)  Oath of Office and Secrecy administered by the President

• Art. 164 (4)  Non-member of Parliament for 6 consecutive months shall lose his ministerial position
ROLE OF MINISTERS
Responsibility of
Ministers

Collective Individual
Responsibility Responsibility
 RESPONSIBILITY OF MINISTERS

• Concept of Collective Responsibility  Basic Tenet of Parliamentary Form of

Government  Art. 164(2)  COM Collectively Responsible to SLA  All
ministers are jointly responsible for their acts of commission and omission 

• “Swim together or sink together”  No confidence motion is successful every

member of COM as to resign  including RS Ministers

• Cabinet decisions bind all cabinet ministers and other ministers even if they
differed in the cabinet meeting  Duty to stand by all cabinet decisions  if he
strongly disagrees  if not so he has to resign
 RESPONSIBILITY OF MINISTERS

• Concept of Individual Responsibility  Implicit in the Doctrine of

Pleasure under Art. 164

• Any particular minister who has lost the confidence of the CM can be
removed by the Governor  particular in case of any form of
wrongdoing on his part

• Dissatisfaction with performance of difference of opinion  CM can

ask him to resign or get him dismissed by the Governor
CLASSIFICATION OF MINISTERS

Categories of
Ministers

Cabinet Minister of Deputy

Minister State Minister
 CLASSIFICATION OF MINISTERS

• Three Categories  Cabinet Minister, MoS and Dep. Ministers  Difference in

ranks, emoluments and political importance  PM as the first among equals

• Cabinet Ministers  Important Ministry  Home, Defence, Finance, External

Affairs  Members of Cabinet  Attends meetings and Policy making

• Minister of State  Independent Charge / Attached to Cabinet Minister 

Accordingly Work independently or Work under Cabinet Ministers  Do not
attend Cabinet Meetings unless specially invited

• Deputy Ministers  No independent charge  attached to Cabinet Ministers or

MoS and assist them  Not part of Cabinet and do not attend Cabinet Meetings
 CABINET
• It is a smaller body consisting of 20-30 ministers.
• It includes the cabinet ministers only.
• It is a part and a sub-set of the Council of ministers.
• It meets frequently usually at least once a week to
deliberate and take decisions
• It’s policy decisions are binding on all ministers
• It has a supervisory role on the Council of Minister
 KITCHEN CABINET
• It is sub-classified into a Kitchen/Inner Cabinet
• It is a super-small body of Cabinet with highest decision making powers
• Informal and Extra-Constitutional System that developed in system
with a larger cabinet that may stifle decision making
• The objective is to ensure quick, efficient and robust decision making
• It helps in maintaining secrecy in important political matters
• It can meet more often and expeditiously that the full cabinet
• Decisions are cooked and placed before the full cabinet for formal
approval
• Also exists in USA and Britain
STATE LEGISLATIVE ASSEMBLY – AN
OVERVIEW

Prof. Karthik Shiva

VIT School of Law,
Vellore Institute of Technology, Chennai
 INTRODUCTION

• Articles 168 to 212 in Part VI of the Constitution deal with the State Legislature
• It deals with organisation, composition, duration, officers, procedures, privileges, powers, etc.
• There is no uniformity in the organisation of state legislatures
• State Legislatures may be unicameral or bicameral in nature
• Parliament is empowered to create of abolish the Legislative Councils in the States based on a resolution
passed by the state concerned
• State Resolution should be passed with special majority – 2/3 of membership of state legislature
• Andhra Pradesh, Maharashtra, Uttar Pradesh, Telangana, Bihar and Karnataka – Bicameral Legislatures
• Rest of the States – Unicameral Legislature
• Critiqued State Level Bicameralism in Constituent Assembly of India  Delay Decision Making and
Expensive
 COMPOSITION OF STATE LEGISLATIVE ASSEMBLY

• The legislative assembly consists of representatives directly elected by the people on the basis of universal adult franchise.

• Its maximum strength is fixed at 500 and minimum strength at 60.

• Its strength varies from 60 to 500 depending on the population size of the state.

• In case of Arunachal Pradesh, Sikkim and Goa, the minimum number is fixed at 30 and in case of Mizoram and Nagaland, it is 40
and 46 respectively.

• For holding direct elections to the assembly, each state is divided into territorial constituencies.

• Demarcation of constituencies is done in such a manner  Ratio between the population of each constituency and the
number of seats allotted to it is the same throughout the state  Parity across constituencies

• It ensures uniformity of representation between different constituencies in the state.

• The Constitution provided for the reservation of seats for scheduled castes and scheduled tribes in the assembly of each state
on the basis of population ratios.
 COMPOSITION OF STATE LEGISLATIVE COUNCIL

• The members of the legislative assembly, the members of the legislative council
are indirectly elected.

• The maximum strength of the council is fixed at one-third of the total strength of
the assembly and the minimum strength is fixed at 40.

• It means that the size of the council depends on the size of the assembly of the
concerned state.

• This is done to ensure the predominance of the directly elected House

(assembly) in the legislative affairs of the state.
 MANNER OF ELECTION OF STATE LEGISLATIVE
COUNCIL

1. 1/3 are elected by the members of local bodies in the state like municipalities, district boards, etc.,
2. 1/12 are elected by graduates of three years standing and residing within the state,
3. 1/12 are elected by teachers of three years standing in the state, not lower in standard than
secondary school,
4. 1/3 are elected by the members of the legislative assembly of the state from amongst persons
who are not members of the assembly, and
5. the remainder are nominated by the governor from amongst persons who have a special
knowledge or practical experience of literature, science, art, cooperative movement and social
service.
Thus, 5/6 of the total number of members of a legislative council are indirectly elected and 1/6 are
nominated by the governor.
The members are elected in accordance with the system of proportional representation by means
of a single transferable vote.
 DURATION OF STATE LEGISLATIVE ASSEMBLY

• Like the Lok Sabha, the legislative assembly is not a continuing chamber.

• Its normal term is five years from the date of its first meeting after the general elections

• The expiration of the period of five years operates as automatic dissolution of the assembly.

• The governor is authorised to dissolve the assembly at any time (i.e., even before the completion of
five years) to pave the way for fresh elections.

• The term of the assembly can be extended during the period of national emergency by a law of
Parliament for one year at a time (for any length of time).

• This extension cannot continue beyond a period of six months after the emergency has ceased to
operate.

• This means that the assembly should be re-elected within six months after the revocation of
emergency.
 DURATION OF STATE LEGISLATIVE COUNCIL

• Like the Rajya Sabha, the legislative council is a continuing chamber,

• It is a permanent body and is not subject to dissolution.

• But, one-third of its members retire on the expiration of every second year.

• So, a member continues as such for six years.

• The vacant seats are filled up by fresh elections and nominations (by governor) at
the beginning of every third year.

• The retiring members are also eligible for re-election and re-nomination any
number of times
 QUALIFICATION FOR STATE LEGISLATURE

The Constitution lays down the following qualifications for a person to be chosen a member of the state legislature.

(a) He must be a citizen of India.

(b) He must make and subscribe to an oath or affirmation before the person authorised by the Election Commission for this purpose.

In his oath or affirmation, he swears

(i) To bear true faith and allegiance to the Constitution of India

(ii) To uphold the sovereignty and integrity of India

(c) He must be not less than 30 years of age in the case of the legislative council and not less than 25 years of age in the case of the legislative assembly.

(d) He must posses other qualifications prescribed by Parliament.

Accordingly, the Parliament has laid down the following additional qualifications in the Representation of People Act (1951):

(a) A person to be elected to the legislative council must be an elector for an assembly constituency in the concerned state and to be qualified for the
governor’s nomination, he must be a resident in the concerned state.

(b) A person to be elected to the legislative assembly must be an elector for an assembly constituency in the concerned state. (

(c) He must be a member of a scheduled caste or scheduled tribe if he wants to contest a seat reserved for them. However, a member of scheduled
castes or scheduled tribes can also contest a seat not reserved for them.
 DISQUALIFICATION FOR STATE LEGISLATURE

Under the Constitution, a person shall be disqualified for being chosen as and for being a
member of the legislative assembly or legislative council of a state:

(a) if he holds any office of profit under the Union or state government (except that of a
minister or any other office exempted by state legislature),

(b) if he is of unsound mind and stands so declared by a court,

(c) if he is an undischarged insolvent,

(d) if he is not a citizen of India or has voluntarily acquired the citizenship of a foreign
state or is under any acknowledgement of allegiance to a foreign state, and

(e) if he is so disqualified under any law made by Parliament

 DISQUALIFICATIONS UNDER RPA, 1951

Accordingly, the Parliament has prescribed a number of additional disqualifications in the Representation of People Act (1951):

1. He must not have been found guilty of certain election offences or corrupt practices in the elections.

2. He must not have been convicted for any offence resulting in imprisonment for two or more years. But, the detention of a
person under a preventive detention law is not a disqualification.

3. . He must not have failed to lodge an account of his election expenses within the time.

4. He must not have any interest in government contracts, works or services.

5. He must not be a director or managing agent nor hold an office of profit in a corporation in which the government has at least
25 per cent share.

6. He must not have been dismissed from government service for corruption or disloyalty to the state.

7. He must not have been convicted for promoting enmity between different groups or for the offence of bribery.

8. He must not have been punished for preaching and practicing social crimes such as untouchability, dowry and sati.
 DISQUALIFICATIONS UNDER ANTI -DEFECTION
LAW

The Constitution also lays down that a person shall be disqualified for being a
member of either House of state legislature if he is so disqualified on the ground of
defection under the provisions of the Tenth Schedule.

The question of disqualification under the Tenth Schedule is decided by the

Chairman, in the case of legislative council and, Speaker, in the case of legislative
assembly

Kihota Hollohan v. Zachilhu (1992) – Decision of the Speaker subject to Judicial

Review
 VACATION OF SEATS

The Member of the State Legislature vacates his seat in the following cases;

1. Double Membership

2. Disqualification

3. Resignation  Writing to Chairperson / Speaker as case may be

4. Absence  60 Days Absence without permission  Seat is vacated

5. Other Cases  Election held void by Court  Expelled by the House 

Elected as President / Vice President  Appointed as Governor of a State
Local Administration
 Unit 1
• Definition:
- Self – Government
- Citizens of a country rule themselves and
control their own affairs
- Free from political control
• Local self-government means that residents in towns, villages
and rural settlements are the hosts in their own home.
• People elect local councils and their heads authorizing them
to solve the most important issues.
• Local self-government bodies are responsible for school and
pre-school education, primary healthcare (outpatient clinics,
rural health posts), cultural institutions, amenities – street
lighting, roads, cleaning, public order and many other
important day-to-day issues.
• The essence of the reform is to empower residents of towns,
villages, rural settlements – to independently solve all these
issues.
 Constitutional Provisions on Rural
Governance
• After Independence :
- Community Development Programme – 2nd Oct, 1952
- To study the functioning of Panchayat Raj System
- Suggested to appoint committees
- Failure of 5 year plans
 COMMITTEES
- Balwant Rai Mehta Committee, 1957
– V T krishnamachari Committee, 1960
- Takhatmal Jain Study Group,1966
- Ashok Mehta Committee,1977
- G.V.K. Rao Committee, 1985
- Dr. L.M. Singhvi Committee:, 1986
 Significance of 73rd amendment:
• 1. Added new Part IX
• 2. Created new 11th Schedule – 29 entries
• 3. Practical shape to Article 40 –DPSP
• 4. Constitutional status to village panchayat – (Art 243 A –O)
• 5. Compulsory and Voluntary Provisions
 History
• Entry 5 of List II – State subject
• Rajasthan – 1st state – Oct 2,1959 – Panchayat Samitis and Zila
Parishad Act, 1959
• Andhra Pradesh – 1959
• Mysore – Mysore Village Panchayats and Local Board Act,1959
• Assam Panchayat Act, 1959
• Madras Panchayat Act,1960
• Orissa Zilla Parishad Act,1959
• Punjab Panchayat Samitis and Zila Parishad Act, 1960
• Jammu and Kashmir
 Article 40
• Village Panchayat
• Welfare State
• Socio-Economic development
• Failure :
1. Inadequacy of financial resources
2. Non – Participation of people in village panchayat
Constitutional Provisions – Article 243 -243 O
73rd Amendment Act, 1992 :
Objective:
- Democratic decentralization of power and resources
- Execute Art 40
- Gandhian Principle of DPSP
- People should decide matters on their own
 SALIENT FEATURES
• 1. Gram Sabha
• 2. Three tier system
• 3. Election of members and chairperson
• 4. Reservation of seats
• 5. Duration of Panchayat
• 6. Disqualification
• 7. State Election Commission
• 8. Powers and Functions
• 9. Finances
• 10. Audit of accounts
• Article 243 :
- Gram Sabha
- Intermediate level
- Panchayat
- Village
• Article 243 A – Gram Sabha
 Article 243 – (A –O) - Panchayat

- Article 243 B – Three tier system

- Article 243 C – Composition of Panchayats
- Territorial Constituency
- Delimitation
- Right to Vote
- Article 243 D – Reservation of seats
- Scheduled Caste
- Scheduled Tribe
- Article 243 E – Duration of Panchayat
- Article 243 F – Disqualification for membership
- Article 243 G – Powers, authority and
responsibilities of panchayat
(i) Preparation of plans for economic
development and social justice
(ii)Implementation of schemes
 State Finance Commission
Three Institutions:
a) State Election Commission
b) State Finance Commission
c) District Planning Committee

• Review the Financial position

• Every fifth year
• Make recommendation to the governor on
(i) Net proceeds of the taxes, duties, tolls and fees
– distribution between state and panchayat
(ii) Grant in aid to the panchayat
• Composition and procedure – State by law
Functions:
- Reviewing the economic condition of the
various Panchayati raj institutions and
municipal bodies
- Take steps in boosting the financial condition
of the various municipal bodies and
Panchayati raj institutions in the state
- Allotting the funds between Panchayat and
Municipalities
- Role of an arbitrator between centre and state
 UNIT 4

Local Administration
THREE LEVELS OF THE INDIAN GOVERNMENT

CENTRAL
GOVERNMENT

STATE
GOVERNMENT

LOCAL SELF - GOVERNMENT

 LOCAL SELF GOVERNMENT

RURAL URBAN
 RURAL

PANCHAYAT PANCHAYAT SAMITI ZILA PARISHADS

(VILLAGE LEVEL) (BLOCK LEVEL) (DISTRICT LEVEL)
 URBAN
LOCAL
SELF-
GOVERNMENT

MUNICIPAL
CANTONMENT PORT
CORPORATIONS MUNICIPALITIES
BOARDS TRUSTS
Zila parishads
(district level)

Block samitis
(block level)

Panchayats
(village level)
 PANCHAYATI
SYSTEM

GRAM NYAYA
GRAM SABHA
PANCHAYAT PANCHAYAT
 ’
Gram Panchayat
1. Maintenance of roads, water sources
2. Health facilities
3. Drinking water
4. Cleanliness
5. Check spread of diseases – vaccination
6. Construction – buldings, burial grounds
7. Primary education
8. Record of birth and death
9. Improvement , development of farmers
10. Looking after weaker sections
 Optional Functions:
1. Construction of playgrounds, rest houses
2. Installation of television, radio sets in community
centres
3.Organisation of educational programmes
4. Cattle fairs, village markets
5. Plantation of trees
6. Running the library.
• Taxes on property, land, goods, and cattle;
• Rent collected for facilities like Barat Ghar
or any other property of panchayat;
• Various types of fines collected from the
offenders;
• Grants-in- aid from the State government
and Union government;
• A part of the land revenue collected by the
State government given to the Panchayats;
and
 Importance of Gram Panchayat
 Helping in daily problems
 Administrative, social, economic, judicial functions
 Community development
 Training for future leaders
 Mutual help, cooperation, responsibility, self – sufficiency
 Sarpanch:
• A sarpanch, is an elected head of a village
level statutory institution of local self-
government called the panchayat.
• The sarpanch, together with other elected
panchas (members), constitute the gram
panchayat.
• Sarpanch is also called as Panchayat
President.
• Responsibility as a sarpanch of gram panchayat
1. Develop inclusive plans to address the water supply and
sanitation needs of the households in the villages/GP.
2. Make provision for priorioratization on of water and sanitation on
facilities in the Gram Panchayat Development Plan (GPDP) and
mobilize resources to fulfil the water and sanitation on demands.
3. Encourage the VWSC/village team to participate in training and
capacity building programmes.
4. Strengthen capacity of village-level functionaries, such as
swachhagrahis/ barefoot technicians and review their
performances
5. Coordinate village-level information on, education and
communication on (IEC) activities for all concerned stakeholders.
• Participate in shramdaan (voluntary work).
• Develop soak pits, composting , biogas plants for
SLWM (managing greywater).
• Practise se waste segregation on at source and
the 4R(s): Reduce, Reuse, Recycle, Recover, for
managing solid waste.
• Encourage use of toilets by every person, every
time
• Encourage judicious use of water and avoid
wastage of water.
 BLOCK SAMITIS
(block level)
 Handles problems which are too difficult for panchayats to
solve –
Eg: pooling resouces for a large hospital
 Many village panchayats (usually a hundred) = one block
samiti / panchayat samiti
 Composition of Block Samiti
 Sarpanches of all village panchayats under it
 Town Area Committee (if any in the block) – Chairperson

 Cairperson, Vice – chairperson – elected by its members

 Block development officer – carrying out its plans

Members of Block Samiti?
• Members of LokSabha and RajyaSabha.
• Members of VidhanSabha and VidhanParishad from the
block.
• Representatives of women, Scheduled Castes, Schedules
Tribes, and Other Backward classes from the block.
• One – third for women
1. Supervises the working of the village panchayats
under it
2. It engages many experts to help the villagers. The
experts in the field of agriculture also help the
villagers in obtaining better quality seeds fertilisers
insecticides and in improving the breed of cattle.
3. The other experts bring about a change in the
outlook of the people through education and literacy.
4. Arranges government funds for its development
4. Community Development Programmes – financial
assistance, irrigation, seeds, fertilizers, education,
health facilities, drinking water, sanitation, financial as
5. It arranges for expert advice service to the
panchayats for their development in agriculture
construction of roads and buildings health and
education etc.
• s
 Zila Parishad
 District board (district level)
 Head of the panchayati raj system
 Zila Parishad - Composition
 Chairpersons of block samitis
 The Chairman of the Zilla Parishad should be the District
Collector and Magistrate
 All the presidents of the Panchayat Samiti are the members
of the Zilla Parishad.
 Members of the state legislature (vidhan sabha and vidhan
parishad)
 Members of the Parliament (MPs)
 District collector, district judges, district police officers
 Reservation of STs, backward classes
 One – third for women
 Zila Parishads - Functions
 Supervises block samitis, panchayats
 It has to approve the budgets of samitis in the district.
 Advises the state government on working of panchayati raj
system
 Supervises working of community development projects of
block samities and five – year plan projects
 Monitors agricultural production, undertakes irrigation
projects
 Builds, maintains, inspects primary, secondary schools,
hospitals, dispensaries, primary health centres
 Establishes and maintains cooperatives – promotion of
industries and arts
 Link between panchayat samiti and state government
 Sources of Income – Block samiti and Zila Parishad

 Grants and aids from state governments, central

government
 Land tax, house tax, water tax, electricity tax, tax on fairs
and cattle
74 TH CONSTITUTION AMENDMENT
ACT, 1992

Prof. Karthik Shiva

VIT School of Law,
Vellore Institute of Technology, Chennai
 INTRODUCTION

• Local Self–Government – Classified into RLB (Rural Local Bodies) and ULB (Urban Local Bodies)
• Rural Local Bodies – Panchayat Raj Institutions
• Urban Local Bodies – Municipalities and Municipal Corporations
• Given Constitutional Sanction  74th Constitution Amendment Act 1992
• Eight types of Urban Local Government in India
• Municipal Corporations
• Municipality
• Notified Area Committee
• Town Area Committee
• Cantonment Board
• Township
• Port Trust
• Special Purpose Agency
 74 TH CONSTITUTION AMENDMENT ACT, 1992

• Part IX-A to the Constitution of India  Municipalities

• Art. 243P to 243 ZG

• 12th Schedule to the Constitution of India

• 74th Constitution Amendment Act – gave constitutional status to the municipalities

• State Government are under obligation to adopt the new system of municipalities

• Objective is strengthening and revitalising urban local government

 THREE TYPES OF MUNICIPALITIES

The act provides for the constitution of the following three types of
municipalities in every state.

1. A Nagar panchayat (by whatever name called) for a transitional area

2. A municipal council for a smaller urban area.

3. A municipal corporation for a larger urban area

 74 TH CONSTITUTION AMENDMENT ACT, 1992

The governor has to specify a transitional area, a smaller urban area or a larger urban
area, keeping in view the following factors:

(a) Population of the area.

(b) Density of the population therein

(c) Revenue generated for local administration.

(d) Percentage of employment in non-agricultural activities.

(e) Economic importance.

(f) Such other factors as he may deem fit.

 74 TH CONSTITUTION AMENDMENT ACT, 1992

All the members of a municipality shall be elected directly by the people of the municipal area.

For this purpose, each municipal area shall be divided into territorial constituencies to be known as wards.

The state legislature may provide the manner of election of the chairperson of a municipality.

It may also provide for the representation of the following persons in a municipality.

1. Persons having special knowledge or experience in municipal administration without the right to vote
in the meetings of municipality.

2. The members of the Lok Sabha and the state legislative assembly representing constituencies that
comprise wholly or partly the municipal area.

3. The members of the Rajya Sabha and the state legislative council registered as electors within the
municipal area.

4. The chairpersons of committees (other than wards committees).

 WARD COMMITTEES AND OTHER COMMITTEES

Ward Committees

There shall be constituted a wards committee, consisting of one or more wards, within
the territorial area of a municipality having population of three lakh or more. The state
legislature may make provision with respect to the composition and the territorial area of
a wards committee and the manner in which the seats in a wards committee shall be
filled.

Other Committees

In addition to the wards committees, the state legislature is also allowed to make any
provision for the constitution of other committees. The chairpersons of such committees
may be made members of the municipality.
 RESERVATION OF SEATS

The act provides for the reservation of seats for the scheduled castes and the scheduled tribes in
every municipality in proportion of their population to the total population in the municipal area.

It provides for the reservation of not less than one-third of the total number of seats for women
(including the number of seats reserved for woman belonging to the SCs and the STs).

The state legislature may provide for the manner of reservation of offices of chairpersons in the
municipalities for SCs, STs and women.

It may also make any provision for the reservation of seats in any municipality or offices of
chairpersons in municipalities in favour of backward classes.

The reservation of seats as well as the reservation of offices of chairpersons in the municipalities for
the scheduled castes and scheduled tribes shall cease to have effect after the expiration of the period
specified in Article 334 (which is presently seventy years, that is, till 2030).
 DISQUALIFICATION

A person shall be disqualified for being chosen as or for being a member of a

municipality if he is so disqualified

(a) under any law for the time being in force for the purposes of elections to the
legislature of the state concerned; or

(b) under any law made by the state legislature.

However, no person shall be disqualified on the ground that he is less than 25

years of age if he has attained the age of 21 years.

Further, all questions of disqualifications shall be referred to such authority as

 POWERS AND FUNCTIONS

The state legislature may endow the municipalities with such powers and
authority as may be necessary to enable them to function as institutions of self-
government.

Such a scheme may contain provisions for the devolution of powers and
responsibilities upon municipalities at the appropriate level with respect to

(a) the preparation of plans for economic development and social justice;

(b) the implementation of schemes for economic development and social

justice as may be entrusted to them, including those in relation to the
eighteen matters listed in the Twelfth Schedule
 FINANCES AND AUDIT

The state legislature may

(a) authorise a municipality to levy, collect and appropriate taxes, duties, tolls and fees;

(b) assign to a municipality taxes, duties, tolls and fees levied and collected by state
government;

(c) provide for making grants-in-aid to the municipalities from the consolidated fund of
the state; and

(d) provide for constitution of funds for crediting all moneys of the municipalities

The state legislature may make provisions with respect to the maintenance of
accounts by municipalities and the auditing of such accounts.
 APPLICATION TO UNION TERRITORIES AND
EXEMPTED AREAS

The provisions of this part are applicable to the Union territories. But, the
President may direct that they would apply to a Union territory subject to such
exceptions and modifications as he may specify.

The act does not apply to the scheduled areas and tribal areas in the states. It
shall also not affect the functions and powers of the Darjeeling Gorkha Hill
Council of the West Bengal.

However, the Parliament may extend the provisions of this part to the
scheduled areas and tribal areas subject to such exceptions and modifications as
it may specify
 TWELFTH SCHEDULE
It contains the following 18 functional items placed within the purview of municipalities:

1. Urban planning including town planning;

2. Regulation of land use and construction of buildings;

3. Planning for economic and social development;

4. Roads and bridges;

5. Water supply for domestic, industrial and commercial purposes;

6. Public health, sanitation, conservancy and solid waste management;

7. Fire services;

8. Urban forestry, protection of the environment and promotion of ecological aspects;

9. Safeguarding the interests of weaker sections of society, including the handicapped and mentally retarded;
 TWELFTH SCHEDULE
10. Slum improvement and upgradation;

11. Urban poverty alleviation;

12. Provision of urban amenities and facilities such as parks, gardens, playgrounds;

13. Promotion of cultural, educational and aesthetic aspects;

14. Burials and burial grounds, cremations and cremation grounds and electric crematoriums;

15. Cattle ponds, prevention of cruelty to animals;

16.Vital statistics including registration of births and deaths;

17. Public amenities including street lighting, parking lots, bus stops and public conveniences; and

18. Regulation of slaughter houses and tanneries.

Elections and the Constitution of India:
An Introduction

Karthik Shiva B
Asst. Professor of Law,
VIT School of Law
Email: karthikshiva.law@gmail.com
 Introduction
Elections play a vital role in democratic countries around the modern world.

Elections may be; a). Direct b). Indirect; based on the level be; a). National b). State/ Provincial c). Local
Level

Elections are held for filling vacancies generally in the Legislature and Executive wing and in some cases even in
Judiciary - United States of America and Germany - Judicial Election

Elections does not equal Democracy

Democracies without Elections and Elections without Democracy

People’s Republic of North Korea - Arab Spring (2011) - Sham/Show Elections - Elections in Non-democracies

Athenian Democracy and Swiss Federation - Direct Democracy - Democracy without Elections - Sortition /
Rotation

Election (Tool) as means to an end i.e., Democracy (Result)

Requirement of Free and Fair Election - Facet of Rule of Law, Democracy and Constitutionalism
 Elections and Democracy: The Past
Traced to Democracy in Rome and Greece

Kshudrak-Malla Sangha - Republican

Federation - Chanda (vote) - Shalaka
(Pins)- Voting Tokens - Shalaka Grahak (Pin
Collector) - Open/Secret - 4th Century BC

Sabha and Samiti System in Ancient India

Kudavolai System in Tamil Nadu ( 700 AD

onwards)
 Elections and Indian Constitution: The Past
Medieval period - Trade and Village level - Popular Assemblies Continued

British rule - centralised administration - local assemblies faded away

Indian Councils Act, 1892 - Limited Local Representation

Indian Councils Act, 1901 - Elective Elements

Indian Councils Act, 1909 - Separate Electorate on Communal Lines

-Dyarchy in Provinces

Government of India Act, 1915- Amended in 1919- Bicameral Legislature -

Sikh seats - Electorate limited on property, education, tax payment, etc.

Government of India Act, 1935 - Increased communal reservations

Constituent Assembly of India - Indirectly elected by Provincial

Legislative Assemblies - Interim Parliament
Elections and the Constitution: The Present
Elections occupy a vital segment of the Constitution of India

Factors determining electoral democracy - Colonial regime, oppression of the

marginalised groups, linguistic, cultural, economic and religious factors, level of
education, state of the nation, etc.

Principle of Universal Adult Suffrage - Common Electorate

House of the People & State Legislative Assemblies - First Past the Post System -
Single-member constituencies

Council of States, State Legislative Councils, Presidential & Vice-Presidential

Elections - Proportional Representation through Single Transferable Vote
Elections and the Constitution: The Law
The notion of Election is scattered throughout the Constitution of India

References to Election are made explicitly and implicitly throughout the

Constitution of India

Preamble of the Constitution (Democratic Republic)

Fundamental Rights (Art. 14, 19, 21) – Electoral Democracy

Other Provisions (Art. 4 0 - Village Panchayat, Art. 243A-ZB - PRI (ULB

&RLB), Art. 323B - Election Tribunals, Reservation - Art. 330, 332, etc.)
Elections and the Constitution: Provisions
Part XV - Provisions relating to Elections - Art. 324-329A

Art. 324 - Election Commission of India

Art. 325 - Concept of Common Electoral Roll

Art. 326 - Election on the basis of Adult Suffrage

Women in First General Election 1952
Art. 327 - Power of the Parliament to make election law

Art. 328 - Power of the state legislature to make election law

Art. 329 - Bar on interference by Courts in electoral

matters
 Elections Commission of India (Art. 324)
Art. 324 (1) - Election Commission of India - It is a high -powered,
independent, permanent, constitutional body entrusted with the
Superintendence, direction and control of

A. Conduct of elections to Houses of Parliament, State

Legislatures and Offices of President and Vice President (Union
and State Level)
First General Election 1952
B. Preparation of Electoral Rolls
Established - 25th January, 1950

Objective - Free and Fair Elections in India

Members - Chief Election Commissioner and Other Election

Commissioners
Elections Commission of India (Art. 324)
Started as a single-member body with Shri
Sukumar Sen as the first Election Commissioner
of India in 1950

It became briefly a multi-member body for brief

period in 1989 and permanently multi-member Shri Sukumar Sen - First CEC

f rom 1993 - till date.

Presently, it is headed by a Chief Election

Commissioner and two other Election
Commissioners
Mr. Rajiv Kumar - Incumbent CEC
 Elections Commission of India (Art. 324)
•Office of Chief Election Commissioner and Other Election Commissioners
[Art. 324(2)]

•CEC – Chairman if there are Other Election Commissioners[Art. 324(3)]

•Regional Election Commissioners - Ad-hoc in nature - Assistance [324 ( 4 ) ]
•Conditions of Service, Tenure and Removal [324 (5)]
•Staff of the Election Commission of India [324 (6)]
 Election Commissioners of India: Service, Tenure and Removal
•Conditions of Service, Tenure and Removal [324 (5)] - Appointment by President subject to Law
made by Parliament - The Election Commission (Conditions of Service of Election Commissioners

and Transaction of Business) Act, 1991

•Qualifications - Not specified - Retired Civil Servants

•Tenure - Six years / 65 years of age - Sec. 4 of EC (CSTB) Act, 1991
•Removal of CEC - By Parliament - akin to Judge of SC - Proved Misbehaviour/Incapacity - Service
Conditions not to be varied to disadvantage

•Removal of Other Election Commissioners / Regional Commissioners - By President - On the

recommendation of CEC
 Election Commissioners: Position
•SS Dhannoa v. Union of India AIR 1991SC 1745 - Multi-member to Single
Members (1989-90) - Removal of SS Dhannoa by the Presidential Notification

challenged as arbitrary - Abolition of post v. Premature termination of

Service - CEC not on par with Other Election Commissioners

•TN Seshan v. Union of India 1995 ( 4 ) SCC 611- Single Member to Multi-
member conversion challenged (1993) - Ordinance - SC reversed the decision

in SS Dhannoa holding that CEC is on par with other election commissioners

 Election Commission of India - Functions
It exercises functions of administrative, advisory and quasi-judicial
nature;
Superintendence, direction & control
Preparation of electoral rolls
Conduct of all elections to Parliament and to legislature of every
State
Conduct of all elections to the office of President & VP
Decision as to disqualification - President and Governor to consult -
Art. 103 and 192
 Conducts of Elections in India
Election Commission of India State Election Commission

Art. 324
Art. 243K & 243ZA
Lok Sabha & Raj Sabha
Panchayat
State Legislature
Municipalities
President and Vice President
Concept of Common Electoral Roll (Art. 325)
Traced to communal electorate in British India - Poona Pact (1932) -
Religious and Class segregation eschewed under the Constitution

Single, Unified, Common and General Electorate for every territorial

constituency in India

It provides that only on the basis of religion, race, caste or sex;

No inclusion in a special electoral roll (No Privilege)

No ineligibility in common electoral roll (No Disqualification)

 Concept of Adult Suffrage(Art. 326)
Electoral Democracy in India is based on the principle of (universal) adult suffrage - Importance
of Adult Suffrage in 1950 - Special Relevance vis-a-vis other world nations

All citizens above the age of 18 years, and not disqualified by law on grounds of

Non-residence

Unsoundness of mind

Crime

Corrupt / Illegal Practice

are eligible to be registered as voters under Art. 326

61st Constitution (Amendment) Act, 1988 - w.e.f. 1989 - age of voting reduced to 18years
Constitutional Status of Vote (Art. 326)
What is the status of the Right to Vote?

Fundamental Right, Constitutional Right or Statutory Right?

Case of Andaman and Nicobar Islands - First vote in 1971

Arunachal Pradesh - First vote in 1977

Voting withheld on the ground of backwardness

Kuldip Nayar v. Union of India (2007) - Voting - Statutory Right

Reiterated in PUCL v. Union of India (2013) - Right to vote is a statutory rights (sec. 62
of RPA, 1951) - Right to be registered as a voter is a Constitutional right (Art. 326)
- Right to free and fair election is a Fundamental Right (Art. 21)
 Power to make law ( Art. 327 & 328)
Art. 327 - Power of the Parliament to make law relating to election to

the Houses of Parliament;

the State Legislature;

Preparation of Electoral Rolls;

Delimitation of Constituencies; and

Other related necessary matters

 Power to make law ( Art. 327 & 328)
Art. 328 - Power of the state legislature to make law relating to
election to state legislature in particular

It is subject to law made by the Parliament in this regard

It is supplementary and complementary to the power of the

Parliament i.e. to extent that provisions are not already made by
the Parliament

Parliamentary law to have overriding ef fect

Elections and the Constitution: The Law
Constitution of India
Representation of People Act, 1950

Representation of the People Act, 1951

Presidential and Vice-Presidential Election Act, 1952

Delimitation Act, 2002

Allied Rules and Regulations [Conduct of Election Rules, 1961and

Election Symbols (Allotment) Order, 1968]
Elections and the Constitution: Landmark Decisions
Union of India v. Association for Democratic Reforms (2002)- Right to information of
electors - Assets, Liabilities, criminal records, etc.

People’s Union for Civil Liberties v. Union of India (2003) - Right to know criminal
antecedents protected u/art. 19(1)(a) of the Constitution

People’s Union v. Union of India (2013) - NOTA Judgement - Rule 49-0 - Secrecy of Voting

Lily Thomas v. Union of India (2013)- Right to free and fair elections - Immediate
Disqualification on Conviction for 2 years or more

Raj Bala v. State of Haryana (2014) - Educational Qualifications for Local body elections
upheld

Common Cause v. Union of India (2015) - Government Spending on political advertisements

 Judicial Review in Electoral Matters
Art. 329 - It creates certain on bars on interference of the Courts
in matters relating to election.

It excludes from the purview of judicial review

Law relating to Delimitation u/art. 327 &328

Disputes relating to election other than by way of Election

petition
Elections and the Constitution of India - The Future
Simultaneous Elections

Social Media Control / Influence

NRI Voting Rights ( ETPBS)

Online / Remote Voting (Blockchain Technology)

Electoral Recall

Evolution of NOTA (Annulling elections)

Strengthening State Election Commissions

 Conclusion

“Man’s capacity for justice makes Democracy possible,

Man’s capacity for injustice make Democracy necessary.”

- Reinhold Niebuhr
‘A democracy must be progressive or it will cease to be
great or a democracy’.

- Theodore Roosevelt
NHRI AND OTHER
COMMISSIONS: AN
INTRODUCTION
Karthik Shiva
Assistant Professor of Law
VIT School of Law, Chennai
NATIONAL HUMAN RIGHTS COMMISSION
■ National Human Rights Commission established under the Protection of Human
Rights Act, 1993 – Apex human rights institution in India
■ India’s NHRC is fully complaint with the Paris Principles and is accredited with ‘A’
Status by the ICC (International Coordinating Committee) of National Human
Rights Institutions (NHRIs)
■ NHRC – Apex Statutory Human Rights Body
■ NCSC, NCST, NSBC - Constitutional Bodies
■ NCPCR, NCW, etc. – Statutory Bodies
■ National Commission for Safai Karamcharis – Non Statutory Bodies
 COMPOSITION OF NATIONAL HUMAN
RIGHTS COMMISSION
Chairperson
(Former Judge of the
Supreme Court)

Full Time Members Deemed Members

(Five) (Seven)

Three Members
One Member Chairperson of National
One Member (Former (Persons having special Chairperson of National Chairperson of National Chairperson of National Chairperson of National Chief Commissioner for
Chairperson of National Commission for
(Former Judge of Chief Justice of a High knowledge/practical Commission for Commission for Commission for Commission for Persons with
Commission for Women Protection of Child
Supreme Court) Court) experience in Human Minorities Scheduled Castes Scheduled Tribes Backward Classes Disabilities
Rights
Rights)

The Commission consists of a Chairperson, five full-time Members and seven deemed Members.

The statute lays down qualifications for the appointment of the Chairperson and Members of the Commission.
 LANDMARK CASES OF THE NHRC
■ Gujarat Riots case – Approached the SC on behalf of minorities

■ Punjab Mass Cremation Case – 1.75 lakh compensation for mass cremation of
1051 unidentified bodies by the state

■ Starvation Death in Orrisa – Special Rapporteur for Relief and Rehabilitation

■ Encounter Deaths in Andhra Pradesh – 1997 formulated guidelines for encounter

deaths and APCLC – extra judicial killings

■ Death Due to Silicosis – Tribes working Quartz crushing factories

NATIONAL COMMISSION FOR
WOMEN (NCW)
■ NCW – A statutory body established on the 31st January, 1992 under the National Commission

for Women Act, 1990

■ Traced to the recommendations of the Committee on the Status of Women in India (CSWI) in

1971 suggesting the setting up of a National Commission for Women to fulfill the surveillance

functions to facilitate redressal of grievances and to accelerate the socio-economic

development of women.

■ The First Commission was constituted on 31st January 1992 with Mrs. Jayanti Patnaik as the

Chairperson.

■ Present chairperson of NCW is Ms. Rekha Sharma – Inevitably a member of the present

dispensation (govt.)
 MISSION AND VISION OF NCW
■ Mission - To strive towards enabling women to achieve equality and equal participation in all spheres

of life by securing her due rights and entitlements through

– suitable policy formulation,

– legislative measures,

– effective enforcement of laws,

– implementation of schemes/policies and

– devising strategies for solution of specific problems/situations arising out of discrimination

and atrocities against women.

■ Vision – To ensure that the Indian Woman, secure in her home and outside, fully empowered to

access all her rights and entitlements, with opportunity to contribute equally in all walks of life.
 COMPOSITION OF NCW (Sec. 3) –

The National Commission for Women as per section 3(2) shall consist of;

a). A Chairperson, committed to the cause of women

b). Five members nominated by the central government from amongst persons of

i). Ability, integrity and standing

ii). experienced in law, trade unionism, management of an industry or organization committed to increasing the employment potential

of women, women’s voluntary organizations (including women activists), administration, economic development, health, education or

social welfare;

At least one member each shall be a member of the Scheduled Caste and Scheduled Tribes respectively

c). A Member Secretary nominate by the Central Govt.

i). An expert in management, organization structure or sociological movement

ii). Officer of Central Civil Service or All India Service or holding Civil post under the Union
 ROLE, POWERS AND FUNCTIONS OF THE NATIONAL COMMISSION

FOR WOMEN

■ Section 8 – Power to appoint committee to deal with specific issue concerning women

■ Section 9 – Power to regulate its own procedure

■ Section 10 – Functions of the Commission

■ Section 12 – Central Government to provide Grant to the NCW for the executing the

functions under this Act- Power of NCW to spend the grants as it thinks fit

■ Section 16 – The Central Government shall consult the NCW on all major policy matters

affecting women – Right of the NCW to be consulted

 ■ FUNCTIONS OF THE NATIONAL COMMISSION FOR WOMEN (NCW) – Sec. 10

■ (1) The commission shall perform all or any of the following functions, namely:-

a. Investigate and examine all matters relating to the safeguards provided for women under the Constitution

and other laws; (Investigation and Examination of Laws)

b. present to the Central Government, annually and at such other times as the Commission may deem fit,

reports upon the working of those safeguard; (Presentation of Reports)

c. make in such reports recommendations for the effective implementation of those safeguards for the

improving the conditions of women by the Union or any state; (Recommendatory function)

d. review, from time to time, the exiting provisions of the Constitution and other laws affecting women and

recommend amendments thereto so as to suggest remedial legislative measures to meet any lacunae,

inadequacies or shortcomings in such legislations; (Review of Laws)

 ■ FUNCTIONS OF THE NATIONAL COMMISSION FOR WOMEN (NCW) – Sec. 10 (contd.)

■ e. take up cases of violation of the provisions of the Constitution and of other laws relating to women with

the appropriate authorities; (Taking up of Cases of Violation)

■ f. look into complaints and take suo-moto notice of matters relating to:- (Look into complaints and suo-

moto notice)

■ i. deprivation of women's rights;

■ ii. non-implementation of laws enacted to provide protection to women and also to achieve the

objective of equality and development;

■ iii. non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships and

ensuring welfare and providing relief to women, and take up the issues arising out of such matters

with appropriate authorities;

 ■ FUNCTIONS OF THE NATIONAL COMMISSION FOR WOMEN (NCW) – Sec. 10 (contd.)

■ g. call for special studies or investigations into specific problems or situations arising out of discrimination

and atrocities against women and identify the constraints so as to recommend strategies for their removal;

(Special Studies on special problems)

■ h. undertake promotional and educational research so as to suggest ways of ensuring due representation

of women in all spheres and identify factors responsible for impeding their advancement, such as, lack of

access to housing and basic services, inadequate support services and technologies for reducing drudgery

and occupational health hazards and for increasing their productivity; (Educational Research)

■ i. participate and advice on the planning process of socio-economic development of women; (Role in

Planning)

■ j. evaluate the progress of the development of women under the Union and any State; (Role in Evaluation

of Progress in Union and States)

 FUNCTIONS OF THE NATIONAL COMMISSION FOR WOMEN (NCW) – Sec. 10

k. inspect or cause to inspected a jail, remand home, women's institution or other place of custody where women are kept

as prisoners or otherwise and take up with the concerned authorities for remedial action, if found necessary; (Inspection

and supervision)

l. fund litigation involving issues affecting a large body of women; m. make periodical reports to the Government on any

matter pertaining to women and in particular various difficulties under which women toil; (Fund Litigation)

n. any other matter which may be referred to it by Central Government (Miscellaneous functions)

2. The Central Govt to place reports under section 10(1)(b) before the both houses of the Parliament along with

memorandum explaining action taken or proposed to be taken on the recommendations and reason for non-acceptance

(Duty of the CG)

3. The State Government to place reports in the state legislature in matters concerned with state in a similar manner –

Parallel provision for the state government (Duty of SG)

FUNCTIONS OF THE NATIONAL COMMISSION FOR WOMEN (NCW) – Sec. 10

■ 4. The Commission shall, while investigating any matter referred to in clause (a) or sub-clause (i) of clause (f)

of sub-section (1), have all the powers of a civil court trying a suit and, in particular in respect of the following

matters, namely :-

a. summoning and enforcing the attendance of any person from any part of India and examining him on oath;

b. requiring the discovery and production of any document;

c. receiving evidence on affidavits;

d. requisitioning any public record or copy thereof from any court or office;

e. issuing commissions for the examination of witnesses and documents; and

f. any other matter which may be prescribed