TOPIC FOR NEXT CLASS - CONTINUATION OF PREAMBLE AND

AMENDMENT PROCEDURE.

Class5

Preamble - Can be amended or not

 Preamble on its own does not have any legal value and not legally
enforceable.

 But, it can be used to interpret other provisions of the Indian constitution or

even to test the constitutional validity of a law.

 In the Re Berubari Union case, the Supreme court of India held that
preamble is not a part of the constitution of India and therefore it cannot be
amended.

 In Kehsavananda Bharti vs the state of Kerala, overturns its previous

judgment and held that the Preamble is a part of the Indian constitution
and can be amended like any other provision.

 Also, it is not a source of power or authority.

Amendment of the Constitution

 Anything mentioned in the constitution can be changed or amended.

 Anything can be added to the constitution.

 Anything can be removed from the constitution.

 Amendment can be a mixture of the above three provisions:-

Maximum strength - Lok Sabha = 552, Rajya sabha = 250.

Total strength = Lok Sabha = 545, Rajya sabha = 245.

Effective/Actual strength = Total strength - absentees.

 Most of the provisions of the constitution can be amended as per the
procedure mentioned u/a 368.

 The rest of the provisions can be amended without using article 368.

 majority - There are different types of majorities in the Indian

constitution for different types of legislation.

 Simple majority - This refers to the majority of more than 50% of the
members present and voting. This is also known as Functional majority.

This type of majority is most frequently used in Parliamentary business

like:
- To pass Ordinary/Money/Financial bills.
- To pass Non-Confidence Motion/Adjournment Motion/Censure
Motion/Confidence Motion.
- To declare a financial emergency.
- Election of Speaker/Deputy Speaker of Lok Sabha and State
Legislatures.
- Constitution Amendment Bill under Article 368 which needs to be
ratified by states, require only simple majority at State Legislature.

 Total majority/Absolute majority - It refers to a majority of more than

50% of the total membership of the house.

For eg: as the total membership of Lok Sabha is 545, an absolute

majority in Lok Sabha means – 50% of 545 plus 1, i.e. 273.

This type of majority is used in General elections, for the formation of

government at center and state level.

 Effective Majority - It means more than 50% of the effective strength of

the house. This implies that out of the total strength (790), we minus the
vacant seats.
When the Indian Constitution mentions “all the then members”, that
refers to the effective majority.

This type of majority is used in:

- Removal of Vice-President in RS (Article 67(b))
- Removal of Speaker and Deputy Speaker of Lok Sabha & Vidhan
Sabha.
  Special majority – as per article 368, requires a majority of 2/3 rd members
present and voting supported by more than 50% of the total strength of the
house. This type of majority is used for most of the Constitutional amendment
bills.
 95% of provisions of the constitution require a special majority for
amendment.

For eg: to pass a constitutional amendment bill in any house:

Lok Sabha Rajya Sabha

Need to have support of ,, ,, ,, ,,(min. 123)

The majority of total members
of the house. (min. 273)
+ +
2/3 (66%) members’ majority who
rd
,, ,, ,,
Are present and voting. ,, ,, ,, ,,

i.e. b/w 273-545(acc. to presence) i.e. b/w 123-245

Cases where this type of majority as per article 368 is used in:
- To pass a constitutional amendment bill which doesn’t affect
federalism.
- Removal of judges of SC/HC
- Removal of CEC/CAG
- Approval of the national emergency requires special majority as per
article 368 in both houses.
- Resolution by the state legislature for the creation/abolition of
Legislative Council(article 169).

 Now, the Parliament of India has two kinds of legislative powers –

(i) Ordinary legislative power - Parliament can pass and enact

ordinary laws.

(ii) It has Constituent legislative powers, by this power parliament, can pass
Constitutional amendment laws. (Special majority needed for this)
 Amendment Process

 Any bill that seeks to amend the constitution is called a Constitutional

Amendment Bill.

 Article 368 provides the procedure for its amendment where a majority of
the provisions can be amended by an act of the Parliament supported by a
special majority of both the houses.

 But some provisions mentioned in the proviso to Article 368(2), can only
be amended with the ratification of at least half of the state legislatures
before a bill passed by the parliament is presented to the President for his
assent.

 Approval of the state legislatures requires a simple majority.

 Under the Indian constitution, a proposal for amendment of the constitution

can only be initiated in the Parliament and state Legislatures don’t have
any powers to initiate the process.

 Constitution makers wanted to give a role to the states in the amendment

procedure only with respect to those provisions that affect the powers of
the states.

The provisions requiring state ratification are –

(a) article 54(president’s election)

article 55(manner of president’s election)
article 73(the extent of executive powers of the union which will affect states)
article 162 (the extent of executive power of State)
article 241 (High Court for a State)
article 279A(Goods and Services Tax Council i.e taxation)

(b) Chapter IV of Part V (The Union Judiciary)

Chapter V of Part VI (There shall be a High Court for each State)
Chapter I of Part XI (Legislative Relations b/w States and Union)
(c) any of the Lists in the Seventh Schedule
(d) the representation of States in Parliament
(e) the provisions of this article as well.
 Parts of Constitution

 Part I - Union and its territories. Article 1-4.

 Part II - Citizenship and provisions. Article 5-11.
 Part III- Fundamental rights. Article 12-35.
 Part IV- Directive Principles of state policy. Article - 36 to 51.
 Part V - Union.
 Part VI - States.
 Part VII - Repealed
 Part VIII - Union territories.
 Part IX - The Panchayats.
And all these parts were added accordingly to the need and serial order in this
Constitution, rather than just saying that the Indian Constitution is a Haphazard of
Articles.

Schedules of the constitution

 Annexure/ schedules were added to reduce the bulkiness of the original

book of the constitution.

 It was also considered that schedules will make the constitution flexible.

 Schedules are like an additional list for reference of the contents of the
constitution.

 Schedule I - States and UTs.

 Schedule II - Allowances and emoluments for important functionaries.
 Schedule III - Oaths and affirmations.
 Schedule IV - Representation of states in Rajya sabha.
 Schedule V - administration and control of Scheduled Areas as well as of
Scheduled Tribes residing in any State other than the States of Assam,
Meghalaya, Tripura, and Mizoram.
 Schedule VI - provisions related to the Administration of Tribal Areas in the
States of Assam, Meghalaya, Tripura, and Mizoram.
 Schedule VII - lists for distribution of legislative powers, Union list, state list,
and concurrent list.
 Schedule VIII - official languages of the Union.
 Schedule IX- a list of laws.
 Schedule X - Anti defection law.
 Schedule XI and Schedule XII - a list of subjects to be given to
Panchayats by states
TOPIC FOR NEXT CLASS - PART I OF CONSTITUTION

Class6

INTRODUCTION AND BRIEF OVERVIEW OF LAST CLASS

PART 1- THE UNION AND ITS TERRITORY

Article 1

 Article 1 of the Indian constitution has three clauses where

 Clause 1 provides the name of the country that can be referred to as

India or Bharat.

 It also provides information on the organization of polity in India.

 Why did constituent assembly use the term Union of states instead of the
federation of states-
The term federation implies an agreement between the states like in the
United States of America.

 But, in India's context, the Union came into existence first, and then the
states came into existence.

 Because using the term federation of states would have implied that the
states can move away from the Union.

 Article 1 (2) provides the name of the states and the Union territories
and their corresponding territories which have been mentioned in
schedule 1

 Article 1 (3) provides the definition of the term territory of India that shall
comprise of-
Territories of states, UTs, and acquired territories.
The term territory of India connotes a wider meaning than the term
union of states.
Article 2

 Article 2 of the Indian constitution proves the idea that parliament can
pass a law to admit a state into the Indian Union or establish a state from
a territory outside the Indian territory and admit it into the Indian Union.

Article 3

 Article 3 of the constitution provides the procedure for the reorganization of

states in India.

 As per this provision, Parliament by law can form new states, alter the
area, alter the boundaries, alter the names of the states in India.

 Under this provision whatever parliament can do for the states can be
done for the UTs as well.

 Proviso to Article 3 provides that any such law should need the following
conditions -
Such a bill can be introduced in Parliament only on the prior
recommendation of the President.

The President before recommending the bill to the Parliament must seek
the views of the state legislatures concerned where they are supposed
to express their opinion on the bill within the specified time period as
mentioned by the President.

If the legislature does not provide its views within the specified period or
gives a contrary view the Parliament is free to proceed in the manner as it
may choose since the opinion of the state legislature is not binding on the
Parliament.

In the case of UTs, the prior recommendation of the president and

referral to the legislature are not required.
Article 4

 Article 4 states that a law made under articles 2 and 3 would not be
considered as a constitutional amendment act under article 368 and
would be treated as an ordinary law even though it may amend schedules
1, 4, and other provisions of the constitution for its effective enforcement.

 Such law is to be passed by a simple majority of both the houses of the

parliament.

Re-organization of states in India

 There were four main types of states at the time of enactment of the
constitution by the constituent assembly were: Part A states, Part B
states, the Part C States, Part D states.

 Part A States -The former governors’ provinces of British India.

Ruled by a governor and state legislatures.
These were Bombay, Madras, Assam, Bihar, Madhya Pradesh (earlier
Central Provinces and Berar), Punjab (earlier East Punjab), Uttar Pradesh
(earlier the United Provinces), Orissa, and West Bengal.

 Part B States -Former princely states or groups of princely states.

 Part C States- Comprised both the former chief commissioner's

provinces and some princely states.
These were Ajmer, Bhopal, Bilaspur, Coorg, Delhi, Himachal Pradesh,
Cutch, Manipur, Tripura, and Vindhya Pradesh. Part D States

 Part D state- these consist of Andaman and Nicobar Islands only.

TOPIC FOR NEXT CLASS - CONTINUATION OF RE-ORGANISATION OF
STATES.

Class7

INTRODUCTION

Re-organization of states

 Four main types of states at the time of enactment of the constitution by

the constituent assembly were –

Part A States - former governors’ provinces of British India.

These were ruled by a governor and state legislature.
These were Bombay, Madras, Assam, Bihar, Madhya Pradesh, Punjab,
Uttar Pradesh, Orissa, and West Bengal.

The Part B States- These were former princely states or groups of

princely states.
These states were Patiala and East Punjab States Union, Hyderabad,
Jammu and Kashmir, Travancore-Cochin, Madhya Bharat, Mysore,
Rajasthan, and Saurashtra.

The Part C States- Consisted both the former chief commissioner's

provinces and some princely states.
These states were governed by a chief commissioner.
Part C states were Ajmer, Bhopal, Bilaspur, Coorg, Delhi, Himachal
Pradesh, Cutch, Manipur, Tripura, and Vindhya Pradesh.

Part D states - these consist of Andaman and Nicobar Islands only.

Administered a lieutenant governor appointed by the central
government.
 Re-organization evolution –

SK Dhar commission in 1947 -To study the reorganization on a linguistic

basis.
Cannot be on a purely linguistic basis so rejected the linguistic criteria of
reorganization.

JVP committee of congress - was appointed to study the

recommendations of Dhar Commission Findings of the commission.
This also rejected linguistic basis.
Andhra Agitation started leading to the death of Potti Sriramulu.
Andhra's agitation led to the appointment of the State Reorganisation
Commission to examine the question holistically.

Fazl Ali commission - Nehru appointed States Reorganisation

Commission with Justice Fazl Ali, KM Panikkar, and H Kunzru as
members, to examine the entire question of the reorganization of the
states of the Union.

States Reorganisation Act, 1956 - Based on Fazl Ali Commission

recommendations, which are administrative Criteria, Economic
efficiency, Cultural homogeneity, Unity, and Integrity of India.
The process of States Reorganisation in India after 1956 (Explained with
map)

 Bombay reorganization act, 1960 - Formation of Gujrat.

 State of Nagaland act, 1962- Nagaland separated the state from

Assam.

 Punjab reorganization act, 1966- Formation of Haryana.

 New state of Himachal Pradesh act, 1970

 Northeastern reorganization act, 1971- Formation of Manipur, Tripura,

Meghalaya, Mizoram & Union territories of Arunachal Pradesh & Mizoram

 New state of Sikkim act, 1975

 State of Arunachal Pradesh Act, State of Mizoram act 1986- Formation of

states of Mizoram & Ar. Pradesh

 State of Goa Act, 1987 was created by the 12th CAA.

 UP reorganization act, 2000: Formation of Uttarakhand

 Bihar reorganization act, 2000: Formation of Jharkhand, on-demand of a

separate state in Bihar.

 MP reorganization act, 2000: Chattisgarh was formed out of MP.

 Andhra Pradesh reorganization act, 2014: Formation of Telangana

 The reorganization of J&K in 2019: Formation of UTs of Laddakh and

J&K

 Daman and Diu and Dadar & Nagar haveli were merged into one Union
territory in 2020.
Why linguistic reorganization was opposed?

 Secessionist tendencies at the time of independence may strengthen

regionalism and may/will compromise national unity.

 Other factors like administrative and economic concerns should also be

taken into account.

 Minority languages become vulnerable which may lead to more such

demands. (Explained with an example of tribal languages)

 It promotes an antagonistic attitude towards neighboring states.

 Was linguistic reorganization a good idea? – Yes

Homogenous states improved the administration.

The government can connect better with the masses in the language of the
masses and mass literacy could be achieved in the mother tongue.

It has helped strengthen cultural identity and the identity threats to

minority languages could be averted.

Removed a major grievance that could have led to fissiparous

tendencies.

Demand for newer states- Gorkhaland in West Bengal, Bodo land in

Assam, Bundelkhand, Vidarbha in Maharashtra, etc.

Demand for smaller states

 Why the issues arise – due to Decentralize power and administration.

Need to resolve issues of an identity crisis and effective

management of resources.
Fear of balkanization (fragmentation of regions) is far gone.

Arguments in favor - Government attention will be better focused if

states are small which will lead to better administration.

Better allocation of resources, and more diversity.

 Helps in resolving the issue related to identity, as in Northeast and
many hilly states this is a major issue (explained with examples).

Arguments against - Some people believe that the creation of smaller

states does not necessarily mean decentralization in fact power still
remains in few hands.

More the states, more disputes.

It is a costly affair.

Experience of New states created in 2000

 Uttarakhand and Chhattisgarh clocked an average growth rate of

approximately 3% during the pre-birth periods.

 In the post-birth period, these states improved their growth rates

dramatically: Uttarakhand 11%, Chhattisgarh: 9%.

 Contrast this with the mother states – UP accelerated 20% from 4.7% to
6%, MP from 6% to 7%.

 New states have hardly matched the agricultural growth of the parent
state.

 But their growth is higher than the average national agricultural growth
rate.

 Except in the case of Uttarakhand, the other two states have reported a
higher percentage of poor people than parent states.

 The infant mortality rate has shown a declining trend in all states.

 So, in conclusion, only bifurcation won't suffice as it is important to focus on

better administration, growth, and development.
FUNDAMENTAL RIGHTS

 Rights are reasonable claims of individuals which are protected by law

and recognized by society.

Natural and Human Rights- rights that are supposed to be enjoyed by all
human beings irrespective of which country they belong to i.e, these rights
are given to human beings by their sheer existence.

Statutory Rights- Those rights that are provided to individuals by law and
since these are given by law, they can also be taken away by law. A
statutory right or a legal right is different from a fundamental right because
fundamental rights cannot be taken away by an ordinary law and have
been given a special place in the constitution in part 3.

For eg Right to Education, Right to Information, MGNREGA.

 Any rights mentioned in the constitution are called Constitutional rights.

Fundamental Rights - rights that are mentioned in the Constitution in a

particular place (Part 3 of the Indian Constitution) are called Fundamental
Rights.

Other Constitutional Rights- Rights are available under the Constitution

but not under Part 3 of the Constitution.

 What makes FRs important/different - FRs are guaranteed rights and

No law can be made against FRs.

List of rights

 Right to Equality (12-18)

 Right to Freedom (19-22)
 Rights against Exploitation (23-24)
 Right to Religion (25-28)
 Cultural & Constitutional Rights (29-30)
 Rights to Constitutional Remedies (32)
Features of fundamental rights (Explained with example)

 Most of the rights are negatively worded.

 Most of the fundamental rights are available to citizens and non-citizens,

some are available only to citizens and some are available to non- citizens
as well.

 Fundamental rights are available against both the state as well as

individual
Fundamental Rights class 8

 Fundamental rights are guaranteed rights i.e., in case of violation

Supreme court of India will provide a remedy.
 The Supreme court can be directly approached in case of violation of
Fundamental Rights.

Article - 12 Definition of state (9:20 AM)

 Article 12 of the Indian constitution provides the definition of the term

state to clarify on whom the limitations provided by fundamental rights
would be applicable.
 As per this article, the state includes parliament, union govt, state
legislature, and state government but there has been ambiguity over the
term’s local authorities and other authorities.
 The explanation tow which has been provided by the apex court, the
term local authorities include municipalities, PRIs, municipal boards, and
bodies of similar nature performing local governance functions.
 The meaning of the term other authority
 In some of the earlier judgments, the court held that only those bodies
that perform sovereign functions would be classified as a state but in
subsequent judgments such as Rajasthan Electricity board and Ajay
Hasia, the court gave an expansive definition to the term other authorities.
 In this case, the court laid down the test of instrumentality.
 Test of Instrumentality or agency of the state or what comes under the
definition of state -
 If the entire share capital of an entity is held by the state.
 If an entity is a state conferred monopoly.
 Existence of deep and pervasive control of the state.
 If the financial assistance provided by the state is so much that it ends up
meeting a majority of the expenditure of the entity.
 If an entity performs functions in nature of public functions or welfare
state functions.
 Is Judiciary included in the definition of state u/a 12 -
 As per the Supreme court, the Judiciary will fall under the definition of the
term state only when it performs administrative functions.
 For example, the appointment of its staff, maintenance of infrastructure, etc.
 However, when the Judiciary performs judicial functions such as
pronouncing judgments, issuing orders, making rulings, etc it will not
come under the definition of the state.
Article 13

 After the commencement of the Constitution of India - Existing laws in

contravention with FR shall be void and no new laws can be made in
contravention of FRs.
  Article 13 of the Constitution provides powers of the judiciary to hold a law
unconstitutional and void if it is found to be violative of Fundamental rights
mentioned under Part III of the constitution.
 This power of the court extends to both Pre constitutional and post-
constitutional laws.
 This article states that any law inconsistent with fundamental rights shall be
void to the extent of the inconsistency.
 Meaning of the term "to the extent of "– It means that the entire law may not
be held void rather only a part of it i.e., inconsistent with fundamental rights
shall be held as void.
 Meaning of the term law as is applicable to article 13(2).
 The term law u/a13 (2) is a very broad term that not only includes acts of
the legislature but also actions of the executive that have the force of law.
 Therefore, law u/a 13 (2), includes ordinances, notifications, rules,
regulations, orders. schemes, programs, etc.
 The meaning of the term “laws enforced” as is applicable to article 13
(1) – Laws in force are those laws which have been enacted by a
competent legislature or an authority and were in operation before the
commencement of the Indian constitution.
 The doctrine of Severability - This doctrine states that the entire law
would not be held void if-
 Inconsistent parts can be severed from the consistent parts from
consistent parts.
 If the remaining law is not dependent on inconsistent provisions for its
existence.
 In a nutshell, one can state that article 13 puts limitations on the powers of
the state that it cannot make any law inconsistent with fundamental rights in
the court will check the relationship between inconsistent parts and the
remaining sections of the law.
 If the inconsistent part is central to the law then the whole law will be held
inconsistent or if the sections of the law that are inconsistent with
fundamental rights are too jumbled up with the consistent provisions the
entire law will be held void.

Relationship between a constitutional amendment act and Article 13(2)

 It took almost 23 years for the Supreme court to determine whether the
term law u/a13(2) includes constitutional amendment acts or not.
  If CAA is also a law then even it cannot violate fundamental rights but if the
constitutional amendment act is not a law then parliament can enact
constitutional amendment act to violate the fundamental rights or even
remove them.
 Cases to read -
 Shankari Prasad v/s UOI 1951.
 Sajjan Singh v/s UOI state of Rajasthan 1965.
 I.C. Golaknath v/s state of Punjab 1967.
 Keshavananda Bharti v/s state of Kerala 1973.
 Minerva mills v/s Union of India 1980.

TOPIC FOR NEXT CLASS - CONTINUATION OF FUNDAMENTAL RIGHTS.

Class9

A brief review of the previous class

Amendability of Fundamental Rights

 Land Reforms
 3 laws were introduced to protect the interest of Farmers
 Zamindari Abolition
 Land Ceiling laws
 Tenancy Reforms
 Since Land was a State Subject and various state legislature in India
started enacting it.
 These laws were challenged in the court.
 The question was raised like- These laws are violative of Fundamental
Rights (Article 14, 19, and 31) under Part III of the constitution.
 The courts under article 13 of the Constitution should strike down these
laws.
 Many High Courts pronounced judgment in favor of the landowning
class and declared these laws null and void.
 The constitution itself becomes a hurdle in the implementation of Land
Reforms.
 Exception of Articles 14,19 and 31 was planned to introduce.
1st Constitutional Amendment Act, 1951

 Added article 31A, 31B, and IXth Schedule in the Constitution.

  Article 31A- Laws that relate to some specific purpose as mentioned in the
article cannot be held void on the grounds that they violate Fundamental
Rights under 14,19 and 31
 Article 31B-No law placed under Schedule IX can be challenged on the
grounds that it is violative of any of the Fundamental Rights mentioned in
Part III.

Shankari Prasad Vs Union of India, 1951 [9:51 AM]

 3 Judge Bench
 Challenged on the grounds of violating Fundamental Rights under part III.
 The Supreme court upheld the constitutional validity of the 1st
Constitutional Amendment Act.
 Parliament can enact ordinary legislation. It also has Constituent
Legislative power under which Parliament can enact Constitutional
Laws.
 Ordinary legislation is subject to Article 13 and Judicial Review.
 Constitutional Amendment under article 368 does not come under
‘Law’ and hence it cannot be challenged in the Court. It will not be subject
to article 13 of the constitution.

Sajjan Singh Vs State of Rajasthan, 1965 [10:12 AM]

 5 Judge Bench (3:2 Judgment)

 Supreme Court upheld the Shankari Prasad Verdict.
 [Constitutional Amendment under article 368 does not come under
article 13 and hence is not subject to Judicial review]
 2 dissenting Judges: Justice Hidayatullah and Justice Mudholkar
 Justice Hidayatullah- Fundamental Rights are unamendable
 Justice Mudholkar- Indian Constitution has some core principles and
has some implied limitations that cannot be changed.

IC Golaknath Vs State of Punjab,1967 [10:36 AM]

 11 Judge Bench
 17th Constitutional Amendment Act was challenged.
 Supreme Court of India overturns the Judgment of Shankari Prasad and
Sajjan Singh.
 Fundamental Rights are sacrosanct and cannot be amended.
 "Constitutional Amendment Act is also law under article 13" and
therefore cannot violate Fundamental Rights.
  Parliament cannot enact any law in violation of Fundamental Rights.
 The Judgment is implemented prospectively. [Doctrine of Prospective
Overruling]
 Judiciary under article 13 can check the constitutionality of the
amendment under article 368.

Indira Gandhi government

 Sought to introduce some socialistic elements in the Constitution

 24th Constitutional Amendment Act- introduced article 13 (4) and Article
368 (3)
 25th Constitutional Amendment Act- introduced article 31C; mentions
that no law made to give effect to Directive Principles of State Policy
mentioned in article 39 B and 39 C can be challenged on the grounds
that it violates 14, 19, and 31.
 29th CAA- added Kerala LAnd reforms Act to Schedule IX

Kesvananda Bharati Vs State of Kerala, 1973 [11:00 AM]

 13 Judge Bench
 The doctrine of Basic Structure was introduced
 Certain principles or provisions mentioned in the Constitution of India are
a part of the Basic Structure and therefore cannot be amended.
 For example-
 Parliamentary Democracy
 Concept of Rule of Law
 Principles of Equality
 Indian State as Secular
 Federation
 But the court did not provide an exhaustive list of what all is included in the
Basic Structure.
 The court upheld the validity of the 25th Constitutional Amendment Act.
 Article 31 C(2)
 The court cannot enquire into whether the law mentioned in clause 1 is
actually giving effect to Principles mentioned in article 39 (b) and 39 (c)
 [Court declared this provision null and void as it was against the
Basic Structure of the Constitution]

42nd Constitutional Amendment 1976 [11:53 AM]

 Added 368 (4) and 368 (5)

  No amendment of the Constitution of India made under this article
(article 368) can be challenged in any court on any ground. [giving
unlimited power to the Parliament ]

Minerva Mills Vs Union of India [1980]

 Article 368 (4) and 368 (5) under 42nd CAA, 1976 is unconstitutional as it
violates the basic structure of the Constitution since Judicial Review is also
a part of the Basic Structure of the Constitution of India.
 Court mentions ' we are storing the situation as it existed prior to 42nd
constitutional Amendment i.e. Only article 39 (b) and 39(c) will be given
priority over article 14, 19 and 31

The topic of the next class: Further discussion on Concept of Basic

Structure

Class10

Revision: (9:12 AM)

 1951: Shankari Prasad case: CAA was not law, Fundamental Rights are
amendable.
 Then came Golaknath's Case: Fundamental Rights are unamendable.
 Golakhnath highlighted that Judiciary was above the Parliament, and
Article 13 dominated the amendments under Article 368.
 Keshavananda Bharti case propounded the ‘Basic Structure’ of the
Constitution.
 Minerva Mills case: Judicial Review is a part of Basic Structure.

Article 14 (9:45 AM)

 The state shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India.
 Article 14 is imposing a limitation on the powers of the State.
 Equality before the law: That law is supreme and shall prevail at all
times.
 Further, the concept says that everyone is equal in the eyes of law.
 Equal application of laws to all the people.

Equal Protection of Laws: (10:06 AM)

 It is a positive concept,
  This means ‘equals should be treated equally, and unequal should be
treated unequally.
 This means special concessions may be provided in the favour of the
weak or the marginalized.
 Allows the state to make positive discrimination.
 Whereas equality before the law prohibits discrimination.
 It is a US concept, while ‘equality before the law’ is a British concept.

Components of Article 14: (10:12 AM)

 Article 14 of the Indian Constitution provides for the right to equality.

 This article is a negatively worded article that prohibits the state from
denying any person:
 1. Equality before the law.
 2. Equal protection of laws.
 This right is available to both the citizens as well as non-citizens.

Concept of equality before the law: (10:16 AM)

 Equality before the law is a negative concept.

 And it has been adopted from Britain.
 As per this, the law is supreme and everyone is equal in the eyes of the
law.
 In a broad sense, it means that there should not be any special
privileges in favor of any person.
 It also means that no one is above the law.
 And the state shall not discriminate on the grounds of the status of a
person.
 This concept emanates from the concept of the rule of law, given by A V
Dicey.

Concept of Rule of Law: (10:19 AM)

 1. The law is supreme.

 2. The law would be equally applicable to everyone.
 3. The Constitution is a result of the rights of the people. (This principle is
not applicable in the context of India).

Concept of equal protection of laws: (10:22 AM)

 The concept of equal protection of laws emanates from the USA.

 And highlights that the laws should not be applied universally.
  The concept recognizes the principle that people placed in unequal
circumstances should not be treated equally.
 The reservation provisions for the marginalized are an example of equal
protection of laws.
 It allows the State to make positive discrimination in favor of those who are
placed in a disadvantageous position.

Criteria for positive discrimination: (10:40 AM)

 There should be an objective criterion,

 Secondly, when this classification is done, there should be a logical
nexus between the objective of the classification.
 For example:
 People having an income of 50 lac and above be taxed 20%, and below 50
lac be taxed 10%.
 For example:
 Age can be a criterion too, e.g. anyone aged below 18 years, will be
given less punishment, and adults to be given more punishment.

Principles to be followed for making positive discrimination: (11:10 AM)

 In order to make positive discrimination the following conditions should be

satisfied:
 There should exist an objective criterion to create a class of persons
who shall be provided with special treatment.
 There should exist a rational nexus between the objective criterion and the
purpose of classification.
 For example, People with higher incomes should pay higher taxes.
 Example of irrational nexus:
 Taxation rates are based on the color of the eyes.
 Entertainment tax on movies, based on the language of the movie.
 It also includes the principle of natural justice:
 No one can be a judge in their own case.
 Every person (accused) has a right to a fair hearing.
 The principle of natural justice is implicit in Article 14.
 EP Royappa vs. State of Tamil Nadu:
 “Equality and arbitrariness are sworn enemies, whenever, the power is
exercised in an arbitrary manner, Article 14 gets violated.”

Implicit meaning under Article 14: (11:22 AM)

 The court has held that the state should avoid arbitrariness in its action.
  As arbitrariness and equality are sworn, enemies.
 The court further held that no action of the state should be arbitrary
otherwise it can be called into question on the basis of violation of the
principle of equality.

The exception to the right to equality: (11:27 AM)

 Special privileges and amenities have been provided to the President,

and the Governors of the state as mentioned in Article 361.
 The president of the governor is not answerable to any court for the
performance of powers and duties of their office.
 No criminal proceedings can be initiated during their term of office.
 No process of arrest or imprisonment can be initiated during their term of
office.
 No civil proceedings can be initiated without giving at least 2 months'
notice during their term of office.
 Under Article 105 and 194, no act of an MP or a legislator in pursuance of
their duties in the parliament or legislature can be called in question in any
court.
 No legislator or parliamentarian can be arrested 40 days before and
after the session of the legislature.
 Diplomatic immunities and privileges are provided to diplomats of
foreign countries and international organizations.

Article 15 (1): (11:41 AM)

 The state shall not discriminate against any citizen (not a person or
foreigner), on the grounds only of religion, race, caste, sex, place of
birth, or any of them.
 Article 15 (2):
 (2) No citizen shall, on grounds only of religion, race, caste, sex, place of
birth, or any of them, be subject to any disability, liability, restriction, or
condition with regard to:
 (a) access to shops, public restaurants, hotels, and places of public
entertainment; or
 (b) the use of wells, tanks, bathing ghats, roads, and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of the
general public.

The topic for the next class: Article 15, 16, reservations, etc.

Class11
Revision: (9:12 AM)

 IC Golaknath Case: Restricted the powers of the Parliament.

 It restricted the powers to amend the constitution.
 Fundamental rights cannot be amended as per Article 368.
 Keshavanada Bharti Case:
 It declared that Fundamental rights are amendable.
 However, this is subject to the doctrine of basic structure.

Article 15: (9:51 AM)

 Article 15 of the Indian Constitution is a seminal provision that prohibits

discrimination by the state against citizens.
 Under Article 15 (1) the state is prohibited from discriminating against any
citizen on the grounds of religion, race, caste, sex, or place of birth.
 In other words, it means that no citizen of a particular religion, race, caste,
etc. shall be treated unfavorably when compared with citizens of other
religions, races, caste, sex, etc.
 This article provides protection only to the citizens.
 This essentially means that the state may discriminate against any non-
citizens.

Meaning of the term ‘only of’ in Article 15: (9:58 AM)

 The significance of the word ‘only of’ is that if there is any other ground or
consideration for the differential treatment besides those prohibited by
Article 15, the discrimination would not be held as unconstitutional.
 Therefore, discrimination in favor of a particular religion, sex, caste, etc. will
be permissible, if classification is a result of other grounds/considerations
besides the grounds mentioned in Article 15.
 For example, Physical or intellectual fitness for some work can be a
ground for discrimination by the state.

Article 15 (2): (10:02 AM)

 It prohibits the State as well as the individuals from discriminating

against any citizen to access places, that are public in nature on the
grounds mentioned in 15 (2).
 Places that are public in nature, need to fulfill either two conditions:
 First: They should be maintained fully or partially out of state funds.
 Second: they should be dedicated to the use of the general public.
  15 (3) is an example of equal protection of laws, since the State may
make provisions for women and children.
 Considering the marginalized position of these two, in the Indian society,
the Constitution makers wanted to provide the powers to the State for
their advancement.
 For example, the 73rd Constitutional Amendment Act provided 33%
reservation for women in Panchayati Raj institutions.

Article 16: (10:07 AM)

 Article 16 (1) is a specific instance of the right to equality according to

which all the citizens should be provided equal opportunities in matters of
Pubic Employment.
 According to Article 16 (2), discrimination cannot be made against any
citizen, wrt public employment on the grounds only of religion, race, caste,
sex, place of birth, descent, residence, or any of them.
 Article 16 (3) is an exception to Article 16 and allows the parliament to
impose domicile requirements for a category of jobs in a particular state or
a UT.
 State legislatures have not been vested with such powers.
 Article 16 (4) is yet another exception to Article 16 and allows the State to
make reservations in appointments or posts in favor of backward classes
of citizens who are inadequately represented in the service of the State.
 This article does not define ‘backward classes of citizens, but the court
has limited the scope of ‘backwardness’ to social and educational
backwardness.
 Article 340: Appointment of a Commission to investigate the conditions of
backward classes.
 Hence, The President may by order appoint a Commission consisting of
such persons as he thinks fit to investigate the conditions of socially and
educationally backward classes within the territory of India and the
difficulties under which they labor and to make recommendations as to the
steps that should be taken by the Union or any State to remove such
difficulties
 And to improve their condition and as to the grants that should be made for
the purpose by the Union or any State and the conditions subject to which
such grants should be made, and the order appointing such Commission
shall define the procedure to be followed by the Commission.
 BP Mandal Commission was appointed under Article 340.
  Identification of socially and educationally backward classes is difficult.

Reservations in India (11:12 AM)

 In the 1920s a Madras Government order called the Communal order,

provided reservations on the basis of ‘caste and religion’ in educational
institutions.
 A female named Champakam Dorairajan was unable to get admission
into a medical college, despite having requisite merit, because of the
reservation policy.
 She approached the court stating that the order was violative of
Fundamental Rights under Articles 15 and 29.

Champakam Dorairajan vs. State of Madras (1950):

 The state argued that the communal order is constitutionally valid as it

gives effect to DPSP under Article 46.
 However, the Court held that the communal order is unconstitutional
and violative of Articles 15 and 29.
 The court held that the State cannot violate the Fundamental Rights to
ensure the implementation of DPSPs.

Response of the Parliament: (11:16 AM)

 The Parliament passed the First Constitutional Amendment Act and

added Article 15 (4).
 This article states that the State may make provisions for the advancement
of Socially and Educationally backward classes of citizens even though
such provisions may violate Articles 15 and 29 (2).
 This Article gave Constitutional validity to the communal order and
several states utilized this provision to introduce similar benefits of
reservations to the SCs/STs in educational institutions.

Mandal Commission: (11:21 AM)

 The Government of India appointed BP Mandal Commission under

Article 340, to analyze the situation of SEBCs.
 And to provide recommendations for their upliftment.

Mandal Commission Findings:

  The commission used caste as a basic identifier to find out whether a
particular community can be categorized as socially and educationally
backward.
 The commission recommended, that the other backward classes should
also be provided reservations in addition to the SCs and the STs.
 It recommended 27% reservation for the OBCs in government jobs and
educational institutions.

VP Singh Government Order (1990)

 VP Singh’s government decided to implement the recommendations of the

Mandal Commission, and passed an executive order, providing 27%
reservation for the OBCs in Central Government jobs.
 The rationale provided was Article 16(4) and the findings of the Mandal
Commission.
 A widespread protest broke out in the country, and the executive order
was challenged in the Supreme Court.
 Subsequent governments also passed an order extending reservations to
the EWS community from non-backward classes to the tune of 10% in
government jobs.

Indra Sawhney Case (Arguments by the petitioner): (11:33 AM)

 Reservations provided are unconstitutional and violative of the principle of

equality.
 Reservations cannot be extended by executive order, parliament should
have enacted a law for this.
 Caste-based reservations are violative of Article 15 and Article 16.
 Reservations are anti-merit and would affect efficiency in administration.

Judgment of the Supreme Court: (11:36 AM)

 Upheld the constitutional validity of government order.

 Reservations are not violative of the principle of equality.
 Reservations do not affect the efficiency in administration rather
promote inclusion.
 Article 16 (4) contains all that is required to provide reservations in
government jobs and an executive order is enough.
 The Court held that Mandal Commission has identified OBCs on the
basis of a detailed criterion.
 And it would be wrong to equate OBC reservations with caste-based
reservations.
  The court held that backwardness has been identified on social and
educational parameters and therefore is not unconstitutional.
 The court held that reservations cannot be provided purely on the basis of
economic criteria.
 Reservations should not exceed a cap of 50%, else it would result in
reverse discrimination.
 Reservations will be applicable only to initial appointments and not
promotions.
 Carry forward rule is allowed, but subject to an overall 50% limit.
 In some services, merit alone should be the criteria. For example, if
someone is a Nuclear Scientist at BARC.
 Court also introduces the concept of ‘means’ test to identify creamy
layer within the OBCs, who shall not get benefits of reservations.
 The Court said that two important aspects to keep in mind while
extending reservations:
 Prove social and educational backwardness.
 They should be inadequately represented.
 Article 16 (4) should be read along with Article 335.
 Article 335 says, ‘when SC/ST reservations, such should not
compromise the efficiency of administration.’
 85th CAA added the words ‘consequential seniority in article 16 (4) a.

The topic for the next class: Consequential seniority, M. Nagaraja Case,
etc.

Class12

Concept of creamy layer: (9:11 AM)

 In Indra Sawhney Case, the Supreme Court of India introduced the

concept of a creamy layer and held that reservations for the OBCs
should only be provided to those, who pass the means test.
 As per the court, the creamy layer refers to those members of the
backward class who are socially, economically, and educationally
advanced as compared to the rest of the members of that community.
 They constitute the advanced sections of the backward class and end up
appropriating all the benefits of reservations meant for that class without
allowing the benefits to reach the truly backward members.
 The court asked the government to fix the norms of income, property,
and status for identifying the creamy layer.
 In 1993, DoPT issued a circular that laid down guidelines for the
identification of the creamy layer.
  In a recent judgment, the Supreme Court has directed the government to
explore the possibility of introducing the concept of a ‘creamy layer’ for the
SCs and STs.
 Judgment of the M Nagaraj vs. Union of India:
 The court upheld the constitutional validity, of the 75th, 81st, 82nd
amendment act.
 The court held that reservation in promotion is not a matter of right as
provisions under Article 16 for providing reservations are merely
enablers.
 The court further held that if the state wishes to exercise its discretion and
make such provisions, it should collect quantifiable data showing the
backwardness of the class and inadequacy of representation of that class
in public employment in addition to the compliance of Article 335.

Jarnail Singh Case (9:46 AM)

 In this case, the Court held the judgment in M Nagaraj was incorrect, as
there is no requirement to prove the backwardness through the means of
quantifiable data.
 The court also directed the government to consider the introduction of the
concept of a creamy layer for the SCs/STs.

Reservation in Educational institutions: (10:38 AM)

 Till 2005, the center did not provide reservations for the OBCs in central
educational institutions.
 93rd Amendment Act 2005, introduced article 15(5) that allows the State to
provide reservations in educational institutions in the favour of backward
classes of citizens.
 This article is an exception to Article 19(1) g, so as to prevent any legal
challenge on the grounds of violations of the freedom to carry out
business, trade, occupation of the profession.
 This provision allows the State to extend the reservations to private
educational institutions whether aided or unaided by the state.
 But these provisions would not be applicable w.r.t. Minority educational
institutions as they stand on a different plane due to Article 30.
 The Supreme Court upheld the constitutional validity of Article 15 (5) and
Central Educational Institution Act 2005, in Ashok Kumar Thakur vs.
Union of India.

Untouchability/Article 17 (11:07 AM)

  Article 17 of the Indian Constitution abolishes the practice of
untouchability where untouchability has been provided a specific
meaning.
 In Devrajiah Case, the Supreme Court has held that the word
untouchability is used in inverted commas, which means that one
cannot make any literal interpretation of this word.
 Rather it refers to an age-old practice carried out in India, where a
disability is imposed on an individual by the virtue of his or her birth.
 According to this practice, some persons were considered as untouchables
by the higher castes where even their physical touch was considered
polluting.
 By the virtue of Article 35, parliament passed the Abolition of
Untouchability Act 1955 which was later amended in 1976 to enhance the
punishments.
 And it was renamed as Protection of Civil Rights Act 1955.
 Acts or omissions are regarded as offenses under Civil Rights Act.
 First, to restrain a person from entering any premise of worship.
 Second, to refuse a person admission into a hospital, educational
institution, or any public place established for the benefit of the public.
 To preach or spread untouchability, directly or indirectly.
 To support or justify untouchability on religious or other grounds.
 In the PUDR vs. Union of India case, the court held that protection under
Article 17 is available not only against the State but also against private
individuals.
 In Sabarimala Case, the Court observed that Article 17, includes
untouchability based on social factors and is wide enough to cover
menstrual discrimination.
 In Safaikaramchari Andoolan vs. Union of India, the court issued several
directions for uplifting the status of manual scavengers, and subsequently,
in 2013 a law was introduced to abolish the practice of manual scavenging,
which is closely related to the concept of untouchability.

Article 18 (11:46 AM)

 Abolition of titles.
 British used to award titles.
 Often hereditary titles were given.
 This was done by the British to create a loyal class.
 Article 18 prohibits the awarding of titles by State to any individual.
 Indian citizens cannot receive any title who is in the service of State.
  Bharat Ratna and Padma Awards do not amount to a violation of Article 18.
 Balaji Raghavan vs UOI, the court allowed the government to confer
civilian honors.

The topic for the next class: Article 18, Freedom of speech and expression,
Article 19, etc.

Class13

Fundamental Rights under Article 19: (9:16 AM)

 The freedoms provided are not absolute in nature.

 Restrictions can be imposed by the State.
 The power of the State to impose restrictions on the exercise of these
freedoms is itself limited.

Importance of Freedom of Speech and Expression: (9:21 AM)

 It is the very basis of democracy.

 Democracy is all about expressions of opinions.
 Most important for the development of an individual.
 To be able to demand other rights, one needs freedom of speech and
expression.
 To develop the diversity of thoughts, opinions, and expressions.
 To prevent the government from becoming tyrannical.
 Pertinent for the empowerment of the weak.
 Helps in providing feedback.

Implicit meaning under Article 19(1) a: (9:34 AM)

 Express oneself through various aspects of art, e.g. music, sculpture,

etc.
 Freedom of the press, publishing articles, circulation, etc.
 In the case Sakal Papers vs. Union of India, SC says the right to press is
implicit in the right to freedom of speech and expression.
 Freedom to hoist the national flag is also included as a right to freedom of
speech and expression.
 In the case named Navin Jindal vs. UoI, right to hoist the national flag.
 The right to remain silent is also included in 19 (1) a: Prijoe Emmanuel vs.
the State of Kerala: Jehovah’s witnesses case.
  This right included the right to express oneself through modern means of
communication. E.g. through social media.
 Shreya Singhal vs. Union of India: the court held that the right to
express oneself through the internet is also included in freedom of
Speech and Expression.
 Section 66A of the IT Act was held inconsistent with Article 19(1) a,
hence it was held void as per Article 13.
 Right to information is also a right intrinsic to Article 19(1)a.
 Supreme Court in ADR vs UoI, that right to vote for NOTA is also a right to
freedom of Speech and Expression.

Evolution of Article 19 (2): 10:16 AM

 In the case of Ramesh Thapar vs. the State of Madras, the Supreme Court
held that the public order considerations cannot be a ground for imposing
restrictions on freedom of speech and expression under 19(1) a.
 Ramesh Thapar wanted to expand the circulation of his publications to the
state of Madras
 But an order of the Madras government’s prevented him from doing so on
the grounds of public order.
 The petitioner argued that his fundamental rights under freedom of speech
and expression have been arbitrarily restricted as public order is not
mentioned as a ground to restrict freedom of speech and expression.
 The Supreme Court ruled in his favor and stated that small instances that
affect the public order cannot be equated with the term ‘security of the
state’.
 As a result of this judgment, various high courts started to strike down
any laws where freedom of speech and expression was being curbed on
the grounds of public order and incitement to an offense.
 In response, the parliament of India passed the First CAA and added the
grounds of public order and incitement to an offense in Article 19(2).
 The Parliament also added two terms that limited the scope of the
powers of the State to curb the freedom of speech and expression.
 ‘Reasonable restriction’ and in the interest of.
 Whether a particular restriction is reasonable or not would be decided by
the courts.
  On the other hand, the replacement of the term ‘relates to’ with ‘in the
interest of' limited the powers of the State as the latter term is narrower in
its meaning.
 The 16th Constitutional Amendment Act further added the grounds of
sovereignty and friendly relations with foreign States.
 Presently the grounds for restriction can be categorized as follows:
 Grounds of National Interest.
 Sovereignty and Integrity of India.
 Security of the State.
 Friendly relations with the foreign state.
 Grounds of societal interest:
 Public order,
 Defamation,
 Decency or morality,
 Contempt of Court,
 Incitement to an offense.

Defamation: (11:19 AM)

 Defamation refers to bringing someone into disrepute by making false

statements, either written or spoken.
 What is not defamation?
 Mere insults or statements that hurt the feelings of a person to whom
they are addressed do not constitute defamation.
 Therefore a teacher calling a student lazy, or an employer admonishing the
employee for coming late would not be defamation under Section 499 of
IPC.
 In India, two remedies are available against a defamatory attack:
 Civil defamation.
 Here a compensation suit can be filed claiming damages from the
offender.
 Criminal defamation:
 Section 499 of the IPC defines the act of defamation as a criminal
offense.
 And it also provides exceptions to the same.

Debates on decriminalizing defamation: (11:43 AM)

 Many scholars believe that criminal defamation and related sections of the
IPC are misused by the State and the powerful people to curb legitimate
criticism of the government and to curb dissent.
  As per these experts, these sections impose unreasonable restrictions on
freedom of speech and expression and threaten the very fabric of
democracy.

Arguments in favor of decriminalization of defamation:

 Freedom of speech and expression is important for a vibrant democracy

and the threat of prosecution alone is enough to suppress the truth.
 Every case of dissent and criticism may be called a case of defamation.
 The process under this section itself becomes a punishment, especially
when a civil remedy is already available.
 It goes against the global trend of decriminalizing defamation.
 In 2011, the Human Rights Committee of ICCPR called upon the states to
abolish criminal defamation noting that it intimidates citizens and makes
them shy away from exposing their wrongdoings.
 In Subramanian Swami vs. UoI 2014, the Supreme Court upheld the
constitutionality of criminal defamation provisions on the following
grounds:
 The reputation and dignity of an individual is a fundamental rights under
Article 21.
 And is equally important as the freedom of speech of expression.

Arguments in favor of retaining defamation provisions: (11:52 AM)

 The criminalization of defamation to protect individual dignity amounts to a

reasonable restriction under Article 19(2).
 It has been a part of our statutory law for more than 60 years and has
neither diluted nor abridged the freedom of speech in our vibrant
democracy.
 Monetary compensation through civil defamation is not proportional to the
excessive harm done to a person’s reputation, especially as some
peoples are habitual offenders.
 Mere probability or misuse or abuse of law cannot be the reason for
declaring the law as unconstitutional.

The topic for the next class: Sedition, IPC 499, Article 19(2) details. Class14

Contempt of Court: (9:28 AM)

  Contempt means bringing someone into disrepute, to lower their
respect.

Contempt of the Courts Act 1971:

 Defines the contempt powers given to Supreme Court and High Courts in
India.
 One is civil contempt.
 Another is criminal contempt.
 Civil contempt means willful disobeying of any order, decree, or
judgment of the court.
 Or willful disobedience to not adhere to an affidavit or a statement made to
the court.
 Judicial proceedings:
 Interference with administration of justice.
 Scandalise the authority of the court.

Defenses available against Contempt: 9:40 AM

 Reasonable critique of the judgment of the court.

 If the person is stating the mere truth.
 Individual defamation of a judge is not to be considered contempt of
court.

Provision available against Contempt:

 Article 129 and 215 provide the higher judiciary with powers to punish a
person for contempt of court.
 Contempt essentially means to lower the respect for someone.
 Contempt of Courts Act 1971, defines contempt as civil and criminal
contempt.
 Civil contempt refers to willful disobedience of an order of the court or
denial of an undertaking provided to the court.
 Criminal contempt on the other hand refers to any words spoken or
written or signs that scandalize the authority of the court,
 Interferes with judicial proceedings,
 Interferes with the administration of justice.

The objective of Contempt Powers: (10:03 AM)

  The objective of these contempt powers is to insulate the institution of the
judiciary from unfair criticism and to protect the legitimacy of the judiciary
from being eroded.

Issues associated with misuse of Contempt of Courts: (10:08 AM)

 Excessive use at times even leads to violation of freedom of speech and

expression.
 The definitions provided are too vague and subjective and prone to
misuse.
 People are scared of criticizing the courts in a constructive manner as
well.
 It violates the principles of natural justice.
 It has been borrowed from the UK, where the last contempt proceedings
occurred in 1930.

Arguments in favor of keeping Contempt of Courts: (10:13 AM)

 The mere possibility of misuse of a law does not mean that the law
should be abolished.
 It is a necessary evil to allow the courts to function in a free and fair
manner.
 Some people are habitual offenders and therefore, strict provisions are
needed under the law to set an example.

Sedition under Section 124A: (10:20 AM)

 Section 124A of the IPC provides punishment for the offense of sedition.
 That was introduced by the British to curb dissent against British Rule
and has continued in India post the enactment of the Constitution as well.
 In Kedarnath vs. State of Bihar 1963, the Court upheld the constitutionality
of sedition provisions but narrowed down the concept to only those
instances where an individual tried to cause violence or bring the security of
the state into a threat.
 In Sanskar Marathe vs. the State of Maharastra, the court held that
strong criticism of the government does not amount to sedition.
 The Court further held that freedom of speech can not be encroached
upon in the name of sedition if there is no incitement to violence.

Arguments against Sedition Law: (10:41 AM)

  The law is a shadow of colonial rule.
 Used to curb legitimate dissent.
 Gainst democratic norms.
 The definition is vague.
 The conviction rate is very low, less than 2%.
 Most democratic countries have repealed this law as a draconian law.

Arguments in favor of retention of Sedition Law: (10:43 AM)

 The mere threat of misuse of the law doesn’t make the law wrong.
 Supreme Court has narrowed down the meaning of sedition and
therefore its misuse is less.
 National security, Naxalism, terrorism, etc. still exist.

Public Order: (11:05 AM)

 Public Order was introduced as a ground for restriction of the freedom of

speech and expression, by the first Constitutional Amendment act, in
response to the judgment of the court in the Romash Thapar Case.
 Public order refers to a situation where citizens or the public follow the
laws.
 An act affecting the public order would include instances such as fights,
small riots, kidnapping, etc.
 Security of the state is a very specific term that gets affected when there is
an attack on the existence of the State.

Sovereignty and Integrity of India

 This term was introduced as a ground for imposing reasonable restrictions

on the freedom of speech and expression by the 16th CAA, only those acts
that put the unity of the country in danger can be curbed on the basis of this
ground.
 Essentially it is a very narrow term, that can be invoked only in
exceptional circumstances.

Decency or morality: (11:11 AM)

 It is a very subjective term and should not be construed as sexual

morality only.
 In Aveek Sarkar Case, the Supreme Court held that the obscenity or
decency of an act of expression should not be judged on the basis of
rigid standards laid down in Victorian Law.
  Rather the court should apply the contemporary community standards
test to judge the reasonability of the restrictions on the freedom of speech
and expression.
 In Bobby International Case, the court ruled that the scenes depicting
nudity must not be seen in isolation, rather they must be seen in the
context in which they have been depicted.
 Article 19(1) b grants Indian citizens the right to assemble peacefully
and without arms.
 This right can be restricted reasonably on the ground of public order and
sovereignty and integrity of India.
 Section 144 of CrPC provides power to the magistrate of any state or union
territory to make an order prohibiting the gathering of four or more people in
a specified area.
 Such an order is usually made in cases of a danger that is apprehended to
public order.
 The maximum duration of such an order can be 2 months but the State
government may extend the validity up to 6 months also in exceptional
circumstances.
 In Babulal Parate vs. the State of Maharashtra, the court upheld the
Constitutional validity of Section 144 as it falls within the meaning of
reasonable restrictions.
 In Rammanohar Lohia Case (1967) the court held that no democracy can
exist if public order is allowed to be freely disturbed by a section of
citizens.
 In 2012, the Court criticized the government for imposing Section 144
against a sleeping crowd in Ramleela Maidan and held that, this provision
can be invoked only in grave circumstances for the maintenance of public
peace. Otherwise, it would result in abuse of the law.
 In Gorkha JanmuktiMorcha Case the court held that 19(1) b, provides the
rights to peaceful public demonstrations, but it does not include, the right to
resort to violence, including throwing stones.

Right to Strike: (11:41 AM)

 Only available by the law, not as a specific constitutional provision.

 Workmen in industry, have the statutory right to strike as per the
Industrial Disputes Act.
 Bandh:
 Call for bandh are unconstitutional in nature.
  Because you are prohibiting other people from their right to freedom of
movement, trade, etc.
 The Supreme Court has held that the Right to Strike is not a Fundamental
Right but merely a Statutory Right recognized by Industrial Disputes Act
1947.
 As far as the civil servants are concerned, they do not have the right to go
on strike.
 The court has held that under ASMA, the government can prohibit
striking employees from refusing to work in certain essential services.
 In Bharat Kumar vs. UoI, the court declared the Bandhs organized by
Political Parties as unconstitutional.
 It is observed that when a bandh is organized, people are expected to not
travel, and to stop their work and profession, therefore violating their
Fundamental Rights.
 As a result, such a call for bandhs is illegal and unconstitutional.

Article 19 (5):

 Grounds are:
 For the protection of interests of Scheduled Tribes,
 Or in the interest of the general public, e.g. Lockdown during COVID.
 Also, To protect the interests of Scheduled Tribes, Inner Line Permit is
needed to travel.

Article 19 (6):

 The state can put professional or technical qualifications.

 Can provide the restriction, exclusion of the citizens from any business,
etc. E.g. Defence manufacturing.

The topic for the next class: Article 20, Right to life, Article 22, etc.

Class15

Article 19 (1) (g): 9:17 AM

 Article 19 (1) (g) to practice any profession, or to carry on any

occupation, trade, or business.
 Article 19 (6): Reasonable restrictions on grounds of 'interests of the
general public.
 For example, a law has been enacted to restrict the application of a
Fundamental Right, in favor of Article 47, (reasonable restrictions).
  Article 19(6): And in particular, nothing in 19 (1) (g) shall affect the
operation of any existing law in so far as it relates to, or prevent the
State from making any law relating:
 Clause (1) for professional or technical qualifications,
 Through the Constitution (First Amendment) Act, 1951: for professional or
technical qualifications.
 Clause (2) or work related to a corporation owned or controlled by the
State.
 For example: in atomic energy. This particular profession may be a
complete or particle monopoly of the State.

Article 19 (1) (g) (Dictation): 9:30 AM

 Article 19 (1) (g) provides the right to freedom of profession, trade,

business, or occupation to all Indian citizens.
 It is an important provision that allows an individual to choose their
avocation or livelihood as per their choice.
 This right like other fundamental rights is not absolute in nature and can be
restricted on the basis of Article 19 (6)
 Under Article 19(6), the state has been empowered to make laws and
impose reasonable restrictions on the grounds of public interest.
 Further, this right can be specifically restricted, if the state makes a law
prescribing professional or technical qualifications necessary for practicing
a profession or carrying out any trade, business, or profession.
 For example, one needs to possess desired professional qualifications in
order to practice as a Doctor.
 Also, the State can make a law to exclude the citizens from a particular
trade, business, or industry, whether completely or partially, where such
activity can be carried on only by State or a corporation owned by State, or
controlled by State.

Article 20: (9:43 AM)

 It says ‘no person', which means it is available to citizens as well as

non-citizens.
 Article 20 (1): For protection in respect of conviction for offenses.
 There can be no ex-post-facto criminal legislation in India.
 No retrospective application of criminal laws.
 Cannot be provided the punishment greater than that existed at the tune of
commission of an offense.
Article 20(2): (9:58 AM)

 States that no person shall be prosecuted or punished for the same

crime more than once.
 The appeal mechanism is not barred by this mechanism.
 Hence, if an appeal is made in the higher court, it does not count as
prosecution, and will not be protected under Article 20 (2).
 Multiple offenses are charged separately.
 Departmental inquiry is a quasi-judicial process, and therefore is not
covered under Article 20(2).

Article 20 (3): 10:30 AM

 It states that "No person accused of any offense shall be compelled to be

a witness against himself."
 An accused cannot be compelled to provide witness against oneself.
 Things that are excluded are blood samples, hair samples, fingerprints,
thumb impressions, DNA testing, etc.

Article 20 (Dictation): 11:03 AM

 Article 20 provides protection in case of conviction of offenses.

 The first clause prohibits the retrospective effect of criminal legislation in
India.
 According to this provision, a person can be charged for an offense for
committing an act that was declared as an offense at the time of
committing the act.
 Nor can a person be subject to a punishment greater than that existed at
the time of the commission of the offense.
 It is important protection as it saves people from instances of political
vendetta, where those in power may enact laws which retrospective
effect to declare an act as an offense.
 In simple words when the legislature declares an action or an act to be an
offense, or increases the punishment for the commission of an offense, it
cannot be applied retrospectively to pre-judicially affect the interests of an
individual.
 Civil laws are not prohibited from the retrospective application.
 Article 20 (2):
 This clause safeguards an individual from facing successive criminal
proceedings or multiple punishments for the same offense.
 If any law provides for double punishment, it will be considered void,
due to this provision.
  Although Article 20(2) disapproves of double punishment, it does not
provide immunity, from proceedings before a tribunal.
 Therefore, a public servant who has been punished for an offense in a court
may be subjected to departmental proceedings with respect to the same
offense.
 This clause does not prevent subsequent trial and conviction for another
offense, even if both the offenses were conducted simultaneously or one
after the other.

Article 20 (3): 11:15 AM

 According to this provision, a person cannot be compelled to provide a

witness against himself where he is an accused.
 In simple words, an accused cannot be forced to self-incriminate.
 When a police officer uses the force of threatening a person, who is
accused to give evidence against himself, the right of protection against
self-incrimination comes in and the person has the right to remain silent
and not give any statement against himself out of pressure.
 Moreover, if a person confesses something in a trial, then it becomes
important for the court to satisfy itself that the confession so made was
voluntarily made by the person accused of an offense.
 This provision only prohibits a person to be a witness in a compelling
manner, and should not be considered equivalent to furnishing evidence.
 Therefore, taking fingerprints or blood samples etc. does not come
under the scope of ‘to be a witness’.
 immunity under Article 20 (3) is only limited to criminal proceedings.
 The Court in Selvi vs. Karnataka held that narco-analysis cannot be
compelled on a person as it leads to a violation of a person’s mental
privacy.

Article 21: 11:26 AM

 Life and liberty shall not be denied, according to the procedure

established by law.
 There should be a law, the law should provide a procedure, and thirdly, the
procedure should be followed.

AK Gopalan vs. State of Madras, 1950: (11:48 AM)

 Was arrested under Preventive Detention.

 He was denied the right to a fair hearing.
  Preventive Detention Act 1950 denied an opportunity to make
representation for himself.
 The court opined that Articles 14, 19, and 21 are mutually exclusive.

The topic for the next class: Dictation of Article 21, Preventive Detention,
etc.

Class16

Article 21 (In continuation) (09:10AM)

 Article 21 states that a person's life or personal liberty cannot be taken

away except according to the procedure established by law.
 It means that if there is a law that provides a procedure for taking
someone's life and personal liberty and if the procedure is followed
properly, then a person can be deprived of both.
 It also means that an action of the executive not backed by a law that takes
away a person's life or liberty would be held unconstitutional. This concept
is in contrast to due process of law mentioned in the US constitution, where
it is not enough to show the existence of such a law but the law itself should
be just, fair and reasonable.
 AK Gopalan Vs State of Madras:
 1. In this landmark judgment, the SC had the task of interpreting the exact
meaning of Art 21. The petitioner contended that his arrest under
Preventive Detention Act is unconstitutional and violative of Art 21 as the
law denied him an opportunity to present his case and is therefore unjust,
unfair and unreasonable.
 2. SC observation and Decision: The court held that it doesn't have the
powers to check the reasonability of the law under Art 21 and therefore if a
competent legislature provides a procedure to deprive a person's life and
personal liberty, it cannot be questioned in the court. As per the
commentators of the constitutional law, the court had taken a very narrow
view of Art 21 and therefore vested the legislature with excessive powers to
enact a law that may be arbitrary and unfair.
 Maneka Gandhi Vs Union Of India,1978:
 1. In this case, the majority judgment of the AK Gopalan case was
overturned and held that a law made to deprive a person of his life and
personal liberty should conform to the standards laid down in Art 14 and
19. In other words, Art 14,19, and 21 are not mutually exclusive. In a
way, the court expanded its power to check whether a law is just, fair
and reasonable or not.
  2. The court also mentioned that" life" under Art 21 does not mean mere
animal existence but includes all those things that make life worth living. As
a result, the court expanded the meaning of life and personal liberty in its
future judgments.
 Important Judgements:
 1. Olga Tellis Vs Bombay Municipal Corporation: Right to livelihood was
made a part of Art 21.
 2. Right to Clean Environment in MC Mehta Vs UoI.
 3. Right to Education in Mohini Jain Vs State of Karnataka.
 4. Right to a fair and speedy trial in Hussaianara Khatoon Vs the state of
Bihar.
 5. Right to go abroad in Maneka Gandhi Case.
 6. Right to Privacy in Puttaswamy Case.
 7. Navtej Johar Case, Right to choose one's sexual orientation.
 8. Right to choose one's life partner in Shakti Vahini's case.
 9. Anuradha Bhasin Case, Right to access the internet is also a part of Art
21.
 10. In the Khatri Vs State of Bihar case, the Right against torture was
made a part of Article 21.
 11. In Gian Kaur Case, the SC denied the Right to die as part of Art 21.
 12. In Aruna Shanbaug, the Right to passive euthanasia was made a
part of Art 21.

Article 22: (10:24 AM):

 It provides protection and safeguards in cases of detention.

 The first part of this article provides the following specific safeguards in
cases of punitive detention:
 1. The arrested person must be informed of the grounds of arrest as
soon as may be.
 2. He should be allowed to consult and be defended by a legal
practitioner of their choice.
 3. He should be produced in front of a magistrate within 24 hours of
arrest excluding the time of travel.
 4.No detention can extend beyond the period of 24 hours without the
approval of the magistrate.
 Exceptions: This right is not available to enemy aliens and persons
arrested under preventive detention law.
 Safeguards related to preventive detention:
  Preventive detention can be understood as imprisonment of a person when
the state suspects that a person is likely to commit a crime or is a threat to
public order. The safeguards are as follows:
 1.No person can be detained for a period of more than three months
without the approval of the advisory board, a body created to enforce
checks and balances on the powers of the executive.
 2. The detained person must be informed of the grounds of arrest and
must be given the earliest reasonable opportunity to make a
representation against the order.
 The advisory board should consist of persons who are or have been or are
qualified to be the judges of the HC. Also, Parliament by law can provide
the process of inquiry to be followed by the advisory board.
 Exceptions to safeguards:
 1. The state may withhold facts related to detention if it considers that
disclosure of such facts may be against the public interest.
 2. Parliament has been given powers to make law and prescribe
circumstances and classes of cases under which approval of the
advisory board is not required to extend the custody beyond three
months.

Critical analysis of Preventive detention provisions: (11:26 AM)

 1. As per many people, these laws are against the principles of liberal
democracy as a person is detained for not having committed a crime but on
a mere suspicion that he may do so. It is only an irony that constitution-
makers who were themselves victims of such laws chose to grant such
powers to the government in an independent India.
 2. In Abdul Kareem Vs State of West Bengal, the court held that the right
under Article 22(5) is not a mere formality. In fact, the court observed that
the preventive detention orders must be resorted to only in exceptional
circumstances.
 3. It is often alleged that the government fills the advisory board with
such officers who are qualified to become a judge of the HC, thereby
raising questions over the independence of such an advisory board.
 Even though the court stepped in against the infringement of the
fundamental rights of the citizens, the reality is that a large number of
cases pending in the courts means it takes several months to get a writ
petition issued against unlawful detention orders. As a result, the purpose
of the political or personal victimization of the detainee is fulfilled. As per
the report in the Indian Express, more than 75% of the
 detention orders made under the National Security Act 1980 between 2018
and 2020 were found to be incorrect and illegal by the court.

The topic for the next class: Article 23 onwards.

Class17

Article 23: (9:15 AM)

 Three things are prohibited:

 Traffic in human beings: Slave trade, sale, and purchase, forced
prostitution, etc.
 Begar (a form of forced labour); to work against their wishes.
 Other similar forms of forced labor: For example, below minimum
wages.

Article 23 (2): (9:28 AM)

 Allows the state to impose compulsory service for public purposes.

 There shall be no discrimination on the basis of the grounds mentioned in
Article 23 (2).
 One of the notable exceptions: is on the bases of sex.
 This means the State can make such discrimination: e.g., Conscription in
Army, etc.
 Article 24:
 Prohibition of child labour.
 Below the age of fourteen years, a child should not be working in
hazardous occupations.
 Parliament has enacted Child Labour (Prohibition and Regulation) Act,
1986 to prohibit such employment.

Article 23 (Dictation) (9:47 AM)

 Articles 23 and 24 of the Constitution form a code as they prohibit the

exploitation of individuals.
 Article 23 in specific prohibits traffic in human beings and various forms of
forced labor.
 Traffic in human beings refers to the selling and buying of human beings as
if they are the property of an individual.
 This term includes prostitution and slavery as well.
 Begar on the other hand includes/refers to forcing a person to work
against his/her own wishes.
  The term forced labour has been provided a broad interpretation by the
apex court and includes those cases where individuals are paid less than
minimum wages for the work.
 Article 23 (2) is an exception to Article 23, as it allows the state to
impose compulsory service for public purposes.
 For example, conscription in the armed forces may be allowed under
this provision of the Constitution.

Article 24: (10:01 AM)

 Article 24 states that no child below the age of 14 years shall be

employed in hazardous occupations including factories and mines.
 As per the Constitution makers, child labor is an inhumane practice that
takes away the opportunity of having a normal childhood from the children,
thereby hampering their growth and well-being.
 Parliament of India enacted the Child Labour (Prohibition and Regulation)
Act 1986, which gives powers to the central government to add or omit to
the list of hazardous occupations to the central government.
 In 2006, an amendment was made to the Act, that banned the
employment of children as domestic servants or working in
establishments such as hotels and restaurants.
 In 2016, another amendment was made to the Act, that identified a new
category of adolescents between the ages of 14 to 18, who have also been
prohibited to work in hazardous occupations.
 In MC Mehta vs. State of Tamil Nadu, the court qualified the industries
involved in manufacturing matches and firecrackers as hazardous in
nature and prohibited the employment of children.
 The court referred to provisions under Article 39 (e) while making its
observations.
 Article 25: An individual has the right to freedom of religion.
 Article 26: Community right to freedom of religion.
 Article 27: No taxation for the purpose of promoting any particular
religion.
 Article 28: Prohibiting compulsory religious education in certain
educational institutions.

Article 25 (Dictation): (11:43 AM)

 Article 25 provides individuals with the right to freedom of religion

including freedom of conscience.
  Freedom of conscience refers to the right of an individual to entertain
those beliefs and ideas which as considered conducive to the spiritual
well-being of an individual.
 Indian Consitution allows individuals to entertain any form of belief
including atheism for one’s spiritual well-being.
 The right to profess religion refers to the right of an individual to openly tell
the rest of the world about one's religious beliefs and values.
 The right to practice a religion allows individuals to carry out rituals and
ceremonies associated with one’s religion.
 The right to propagate includes the right of an individual to expose
others to the tenets of one’s faith or religion.
 In Stainislaus vs State Of Madhya Pradesh case, the court upheld the
validity of anti-conversion laws where it was noted that the right to
propagate one’s religion does not include the right to convert others
through coercion, inducement, or allurement.
 Rights under Article 25 can be restricted on the grounds of public order,
health, morality, and other Fundamental Rights.
 Further Article 25 (2) (a) allows the state to regulate secular activities
associated with religious activities, for example, the administration of a
temple is a secular activity associated with religious activity, and therefore
several states have made laws to regulate the administration of religious
places of worship.
 Article 25 (2) (b) allows the state to regulate even religious activities for the
purpose of social welfare or reform, or throwing open the Hindu temples to
all the classes and the sections of Hindus.

The doctrine of essential religious practices:

 The court will examine, from time to time, which can be called essential to
the practice of that religion.

The topic for the next class: Article 26 to 30.

Class18

Article 26 (9:10 AM)

 Article 26 of the Indian Constitution guarantees collective rights for the

freedom of religion to the religious denominations.
 Religious denominations are a section of people within a particular
religion that has a distinct set of beliefs and organizations.
  Supreme Court has laid down a three-pronged test to determine
whether a particular group is a religious denomination or not.
 1. If the section of citizens has a distinct name.
 2. If they have a common organization.
 3. They have a distinct set of beliefs and doctrines that they regard as
conducive to their spiritual well-being.
 For Example Arya Samaj, Ramakrishna Mission, Radhaswami Vyas,
etc.

Article 27: (9:33 AM)

 There can be no tax collection for the promotion of any particular

religion or religious denomination.
 Article 27 prohibits payments of taxes for the promotion and
maintenance of any particular religion.
 This article is consistent with the spirit of secularism imbibed in India’s
Constitution.
 The Supreme Court has held that the imposition of a fee does not
amount to tax, as a fee involves an element of quid pro quo where
special services are rendered for benefit of those from whom the
payment is received.

Article 28: (9:51 AM)

 Article 28 categorizes educational institutions into three categories:

 1. Fully funded by the State. (No religious instruction or instructions).
 2. Aided by, recognized by the State. (Religious instructions cannot be
made compulsory, it will be a matter of choice for their students or
guardian).
 3. Established by the trust where religious instruction was to be provided,
but administered by the State: There will be no limitation on the provision
of religious instructions.

Article 28 (Dictation): (10:21 AM)

 Article 28 categorizes educational institutions into the following three

categories:
 1. Completely maintained out of the state funds.
 2. Provided aid by the state or recognized by the state.
 3. Established under any endowment or trust that requires religious
education to be imparted in such institutions.
  In the first category, there is a complete prohibition on imparting
religious education and carrying out religious worship.
 In the second category, receiving religious instruction, or performing
religious worship is an individual’s choice and no one can be compelled to
do so.
 In the third category, there is no prohibition on imparting religious
instruction and carrying out religious worship, even if the institution is
administered by the state.

Aruna Roy vs. Union of India Case: (10:28 AM)

 In Aruna Roy vs. UoI, the court ruled that Article 28 does not ban the
study of religions.
 The whole emphasis of Article 28 is against imparting religious
instruction.
 There is no prohibition on the study of religious philosophy and culture
particularly for building a value-based social life in a society that is
degenerating for power, post, or property.

Article 29: (11:05 AM)

 Article 29 begins with the heading ‘protection of interest of minorities, which

is a misnomer, as this provision provides rights to both minorities as well as
majority communities.
 The objective behind this article is to protect the cultural diversity that is
unique to India.
 It provides a right to all the sections of citizens who have a distinct
language, script, or culture to protect and conserve the same.
 The second clause of this Article prohibits discrimination in matters of
admission to educational institutions maintained fully or partially out of
state funds.

Article 30 (11:35 AM)

 Article 30 provides a tool for the minority community to protect their

language and culture.
 As per the court, to gain the benefits under the Article 30, the
community needs to prove the following two things:
 1. It should prove that it is a religious or linguistic minority.
 2. Institution has been established and administered by the minority
community.
  The court has held that Aligarh Muslim University is not a minority
educational institution as it was not established by the minority
community and rather is a creation of a statute.
 The court has also held that right to administer the minority educational
institutions does not include the right to ‘mal-administer’.
 Also, the unit for the determination of minority status would be the state
where the minority community wants to establish an educational institution.

Article 32: (11:41 AM)

 The right to approach Supreme Court.

 It is itself a fundamental right.
 Approach Supreme Court even by a postcard.
 Court issues writs to enforce the Fundamental Rights.
 Supreme Court has the powers to issue: habeas corpus, mandamus,
prohibition, quo warranto, and certiorari writs.
 Habeas Corpus: To have a body.
 Mandamus: Direct someone to do something.
 Prohibition: To stop them from doing something.
 Certiorari: To certify.

The topic for the next class: Various Writs continued, DPSPs, etc. Class19

Article 32 (Revision): (9:12 AM)

 The procedure has been given a liberal scope.

 The court can be approached by simple writing on postcards as well.
 The writ of habeas corpus, in Latin, means ‘to have a body of’.
 This is available against both public and private individuals.
 Article 19 (1) (a) Freedom of Speech, Expression, Article 19(1) (d),
Article 21 (liberty), and Article 22 (prevention against unlawful
detention), etc. are violated by detention.

Habeas Corpus (9:26 AM)

 The meaning of the term habeas corpus is to have the body of.
 This writ is issued in cases of illegal detention of an individual by an
authority or an individual.
  If a person has been detained illegally, then he/she has to be physically
presented in front of the court, and the court will examine the reasons for
detention.
 And if no legal justification is presented in the court, then the person will be
set free.
 The principle of locus standi is not applicable in the cases of Habeas
Corpus.

Mandamus: (9:37 AM)

 Mandamus literally means ‘we command’.

 It demands some activity on the part of a body, to whom it is addressed.
 To perform some duty that he or she has refused to perform.
 A court can issue a writ of Mandamus to an authority to do something
specified in the writ.
 This writ can be issued either to a public official or an inferior court.
 But not an individual.
 The objective behind this writ is to awaken the sleeping authorities out of
their slumber.

Essential conditions for issuing a writ of Mandamus: (9:40 AM)

 One has to prove the violation of a Fundamental Right.

 Such a violation must be due to non-performance of statutory duty.
 There has to be a demand and a refusal for the performance of duty.

Prohibition: (9:50 AM)

 It is issued by the court to an inferior court or a tribunal, forbidding the

latter to continue the proceedings.

Certiorari:

 Certiorari on the other hand is issued by the court to quash the order of an
inferior court or a tribunal for the enforcement of Fundamental Rights.
 Both these writs are issued when an inferior court has either exceeded its
jurisdiction or usurped a jurisdiction with which it is not legally vested.
 Or if the court has acted contrary to the principles of natural justice or if the
decision has been obtained by fraud, corruption, or collusion.
 These writs can be issued to an inferior court or a tribunal.
  Further, Supreme Court has held, in multiple cases that whenever a body
of persons possess the legal authority to determine the questions affecting
the rights of the subjects a writ of certiorari or prohibition may be issued.
 Certiorari is issued to quash the final order, whereas the writ of prohibition
is issued to prohibit the court or tribunal from making an ultra vires order.
 Therefore one can say that the writ of prohibition is available during the
pendency of proceedings and before the final order is made.
 Whereas Certiorari can be issued only after the final order has been
made.
 The principle of locus standi is applicable in Mandamus, Prohibition, and
Certiorari.

Quo Warranto: (10:00 AM)

 Quo warranto literally means ‘where is your warrant of appointment.’

 It is a writ issued by the court to examine the legality of the claim of a
person to a public office.
 If the person is not able to show a legal right to occupy the office, then the
court can order that person to be removed from the office.
 In a nutshell, one can say that a writ of quo warranto lies against a
person who is not entitled to hold the office and is only a usurper of
such an office.
 For a writ of quo warranto to be issued, any such office in question must be
public in nature. And must be a creation of a law.
 The principle of locus standi is not applicable to Quo Warranto.

Comparison between the writ powers of the Supreme Court and High
Courts: (10:07 AM)

 They differ on the basis of territorial jurisdiction.

 SC: the whole country, HC: in their territorial jurisdiction only.
 SC writ is only for FRs.
 HC under 226, can issue writs for both FRs and Legal rights.
 The Supreme Court cannot refuse the right to its writ jurisdiction under
Article 32, as the right to move the SC for violation of a Fundamental Right
is a fundamental right in itself.
 Whereas, High Court may refuse its writ jurisdiction under Article 226 as it is
not a fundamental right.
 Parliament may by law extend powers exercised by the Supreme Court
under Article 32 (2) to other courts within their local jurisdiction.
Public Interest Litigation: (10:35 AM)

 The Supreme Court of India innovated the concept of PIL where it may
admit writ petitions by relaxing the principle of locus standi.
 The court has held that public-spirited individuals may approach the
court in the social or public interest on behalf of those who may not
have the resources to approach the court themselves.
 In the Husainara Khatoon Case, the plight of undertrials in prisons in
Bihar was brought to the notice of the Supreme Court, and a petition
was filed on the behalf of undertrials, for the enforcement of justice.
 Justice P N Bhagwati set aside the principle of locus standi, and
ordered the release of 40,000 prisoners from across the country.
 This case set precedent for several future cases as a result of which
members of the public having sufficient interest can approach the court for
the enforcement of fundamental rights of the weak and the marginalized.

Article 33: (11:10 AM)

 Article 33 states that the Parliament may make laws to restrict the
application of fundamental rights with respect to members of certain
organizations.
 In pursuant of such powers, Parliament has enacted several laws, the
Army Act 1950, Air Force Act 1950, and Police Forces Restriction of
Rights Act 1966.
 This provision has been provided to ensure that the security or the defense
of the country should not get compromised in the interest of the
Fundamental Rights of a section of citizens.

Article 34: (11:19 AM)

 Under this provision, Parliament can make a law and provide legal
immunity to any person in the service of union or the state, or any
person connected with the maintenance or restoration of order in an
area where Martial law is in force.
 There is no proper definition of Martial law in the Constitution or
otherwise.
 In the strictest sense, it means the suspension of ordinary law and its
replacement with discretionary actions of the executive and the armed
forces.

Directive Principles of State Policy: (11:32 AM)

  As per Article 37: DPSPs are non-enforceable, DPSPs are fundamental in
the governance of the country, and the state shall make endeavors to
enforce the DPSPs by making laws.

Article 38:

 State to secure a social order for the promotion of the welfare of the
people.

Article 39:

 Some principles to be followed while making policies.

 E.g. Article 39 (a) men and women equally have the right to an
adequate means of livelihood.

The topic for the next class: DPSPs continued.

Class20

Article 31 C: (9:11 AM)

 Saving of laws giving effect to certain directive principles.

 Any law made to give effect to Articles 39(b) and 39(c) cannot be held
unconstitutional/void on the grounds that it violates Articles 14, 19, and 31.

Article 39A (9:25 AM)

 Equal justice and free legal aid.

 It was originally not there, it was inserted by the 42nd CAA of 1976.
 It says: The State shall secure that the operation of the legal system
promotes justice.
 Parliament of India passed a law called as National Legal Services
Authority (NALSA), 1987.

Article 40: (9:31 AM)

 Organize Village Panchayats.

 They have been given Constitutional status by the 73rd Amendment
Act.

Article 41:
  Stall shall make effective arrangements for the right to work, education,
and to public assistance in cases of unemployment, old age, sickness, and
disablement.
 For E.g. To old age people, assistance to be provided, National Old Age
Pension Scheme, National Senior Citizen Policy.
 For example, Disabilities Act 1995, provisions for PwD, etc.

Article 42:

 Humane conditions of work and maternity relief.

 eg. Maternity Benefits Act,
 Provisions of Factories Act.

Article 43:

 To secure a decent standard of life and full enjoyment of leisure and

social and cultural opportunities.
 eg: Khadi Gram Udhyog,
 TRIFED, etc.

Article 43 A:

 Participation of workers in the management of industries.

 eg: Trade Union Act,
 Industrial Disputes Act,

Article 43 B:

 Promotion of co-operative societies.

 Ministry of cooperatives,
 97th CAA, 2011, etc.

Article 44: (9:44 AM)

 Uniform Civil Code.

 The State shall endeavor to secure for the citizens a uniform civil code
throughout the territory of India.

Uniform Civil Code (UCC): (10:19 AM)

 Article 44 casts a responsibility on the Indian State, to implement a

uniform Civil Code.
  UCC means that personal laws relating to marriage, divorce,
maintenance, adoption, etc. should be uniform for the people of all
religions.
 The Supreme Court has repeatedly rejected petitions seeking directions to
the Centre, to enforce the Uniform Civil Code, stating that it is a policy
matter that the court is not competent to venture into.
 At the same time, several attempts have been made by the courts to
implement UCC in specific matters.
 For example in Shah Bano Case, the Court held that the provisions
related to maintenance under CrPC should be applicable to all the
women irrespective of their religion.
 Similarly in the Sarla Mudgal case, the court dealt with the issue of
bigamy and its conflict with various laws related to marriage.
 In recent times, the Triple Talaq judgment is a testament to the Court’s
opinion on this matter.

Arguments in favor of UCC: (10:36 AM)

 It would lead to the simplification of laws and hence result in their

effective enforcement.
 It would promote gender equality as several practices having sanctions of
religion are discriminatory towards the women in particular.
 It would help in ensuring adherence to the ideals of secularism
enshrined in the Indian Constitution.
 It would help in strengthening national unity and integrity.

Arguments against the UCC: (10:40 AM)

 It is difficult to build consensus among the various communities over the

content of UCC.
 It may create fear and apprehension among the minorities that their
culture may be subsumed by the majority.
 It may get into conflict with several constitutional provisions, including
Articles 371A and 371G.
 It may be perceived as an interference in the exercise of the right to
freedom of religion.
 As per some people, it may threaten India’s rich and diverse culture.
 It may end up creating conflicts and communal tensions in the country.
 Conclusion:
 UCCs are placed under DPSPs, and therefore it is the duty of the state to
observe its implementation in the governance of the country.
  However, any such move to implement the UCC should only be made
after evolving a societal consensus.
 No such decision should be made in a hurry and the government needs to
work closely with the social and religious leaders, to build trust and create
awareness.

Article 45: (10:53 AM)

 Provision for early childhood care and education to children below the
age of six years.
 Provisions related to childcare, Anganwadi, etc., and RTE Act, etc. have
been instrumental in the same.

Article 46: (10:57 AM)

 Promotion of educational and economic interests of Scheduled Castes,

Scheduled Tribes, and other weaker sections.
 For example Eklavya Schools, etc.

Article 47:

 The duty of the State is to raise the level of nutrition and the standard of
living and to improve public health.
 A conservative principle, and is often in conflict with the economic
interests of the State.

Article 48:

 Organization of agriculture and animal husbandry.

 For example, increase in agricultural and farm production, dairy, poultry,
etc. via White Revolution, Silver Revolution (eggs), etc.
 Ban on cow slaughter, etc.

Article 48A:

 Protection and improvement of environment and safeguarding of forests

and wildlife.

Article 49:

 It shall be the duty of the state to protect monuments, places, etc. of

national importance (cultural and historic).
  Setting up of Archaeological Survey of India is an example of Article 49.

Article 50:

 Separation of judiciary from the executive.

 For example, CrPC, 1973.
 A challenge to the separation of power: Tribunals as quasi-judicial
bodies, etc.

Article 51:

 Promotion of international peace and security.

 Steps to promote international peace.
 India’s soft power, ambition to become a superpower, etc.

Critical analysis of DPSPs: (11:28 AM)

 Not justiciable.
 Vague in nature.
 Some of them as orthodox in nature.
 Some DPSPs are in direct conflict with FRs.
 They put a financial burden on the state.

Significance of DPSPs: (11:33 AM)

 Fundamental to the government of the country.

 Guiding principles of any Government in power.
 Help in the interpretation of the constitution.
 Bring consistency in governance.
 Establish a social and economic democracy in India.
 Establish accountability of the State.
 DPSPs and FRs reinforce/supplement the other.

Right to Property: (11:39 AM)

 Originally 19 (1) (f) gave the right to property to the citizens.

 It was removed by the 44th CAA, in 1978.

History of Right to Property: (11:42 AM)

 Originally in the Constitution, under 19 (1) (f) to acquire, hold and

dispose of the property.
  Article 31 allowed compulsory acquisition only on public grounds and
ensured ‘just compensation’ only as per law.
 Introduction of Article 31 A, 31 B to weaken Right to Property in favor of
land reforms.
 Article 31C was introduced to make exceptions to the Right to Property in
favor of Articles 39 (b) and 39 (c).
 Word ‘compensation’ replaced with ‘amount’, more powers to the state.
 Changes in 31 C were nullified by Minerva Mills Case.
 Right to Property is no longer a Fundamental Right under Article 19 or 31.

Article 300A vs. Article 19(1) (f) and 31: (11:53 AM)

 Cannot approach Supreme Court directly for Art 300A.

 No longer a Fundamental Right.
 Parliament and State Legislatures can make a law that may be in
contradiction to the Right to Property.
 Compensation of any amount may be provided, that amount cannot be
held as insufficient if sanctioned by law.

Topic for the next class: Fundamental Duties, etc.

classclass21

DPSPs vs. Fundamental Rights (9:09 AM)

Champakam Dorairajan vs. State of Madras:

 FRs should be given priority, as FRs are legally enforceable, while

DPSPs are not.
 Therefore in no case, the priority can be given to DPSPs over
Fundamental Rights.

Shankari Prasad vs. Union of India:

 Supreme Court has to contend whether Articles 14, 19, and 31 were in
conflict with DPSPs Article 39 (b) and 39 (c).
 Some DPSPs may be given effect over some Fundamental Rights so as to
achieve the basic objective of the Constitution.

IC Golakhnath vs the State of India:

  Fundamental Rights are sacrosanct in nature.
 And in no case, a law can be made to violate the FRs even if it is to give
effect to DPSPs.
 In IC Golakhnath the court is giving superiority to Fundamental Rights
over DPSPs.

Keshvananda Bharti Case:

 Indian Constitution may have provisions that may seem conflicting with
each other.
 But the courts must look at that interpretation that allows both the
conflicting provisions to exist simultaneously.
 This is known as the ‘doctrine of harmonious construction.

Minerva Mills Case:

 Indian Constitution is based on the bedrock of balance between FRs

and DPSPs.
 To give effect to one over the other completely would disturb this
delicate position.

Fundamental Duties: (9:39 AM)

 On the recommendation of the Swarn Singh Committee.

 Fundamental Duties are contained in Part IVA.
 Article 51A inserted 10 duties.
 Later on, another duty was inserted by the 86th CAA.
 Article 51 A (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.
 Fundamental Duties are not enforceable in courts.

Criticism against Fundamental Duties (10:04 AM)

 They are not legally enforceable by themselves, and therefore

considered mere puff words by many.
 Some of them are vague and subjective in nature.
 And therefore, open to multiple interpretations.
 As per various commentators of Constitutional law, many of them are not
precise in what is expected conduct from the citizens.

Opinion of Courts on Fundamental Duties:

  The state can make laws to enforce Fundamental Duties, but they are not
legally enforceable by themselves.
 Fundamental Duties cannot be enforced through the writs of the courts.
 They are only confined to the citizens of India.
 It is important for the citizens to not only demand rights but also perform
duties.
 Therefore Fundamental Duties are a constant reminder of the
responsibility of the citizens to the country.
 While judging the constitutionality of a law, the court will take into
consideration, if the law seeks to implement a provision under
Fundamental Duties.

Union Executive: (10:27 AM)

 President:
 Vice-president
 Council of Ministers headed by Prime Minister
 Attorney General of India

Office of President: (10:31 AM)

 There shall be a president of India.

 There will be only one president.
 He/she is the head of the executive, head of state, and part of
parliament.
 There should be no vacancy in the office of President at any time.

Article 53: (10:41 AM)

 All the executive powers of the Union are vested in the President of
India.
 Either directly or through the officers subordinate to him (including the
bureaucrat).
 Article 53 (2):
 Without compromising Article 53 (1), the President of India is also the
supreme command of the defense forces of India.
 Declaration of war and peace in the name of the President of India is
done.
 Article 154: (10:48 AM)
 Governor shall have all executive powers of the state.
 Directly or through subordinate officers.
  After the 7th CAA, 1956, the same person can be appointed as
governor of two or more states.

Article 74 (1): 11:07 AM

 President to have executive powers, and shall function on the aid and
advice of the Council of Ministers.
 Originally, 74(1) contained the following: “There shall be a Council of
Ministers, headed by Prime Minister to aid and advice President in the
exercise of his functions.”
 44th CAA, also introduced changes, ‘president of India can ask the
Council of Ministers to reconsider the advice given to him, but he may do
it once.

Relationship between the President and the Council of Ministers: (11:32

AM)

 The original provision of Article 74 stated that the President is supposed to

be advised by the CoM, headed by the Prime Minister, in the exercise of his
functions.
 The Supreme Court in Shamsher Singh vs. the State of Punjab held that
India has adopted a parliamentary form of democracy based on the
conventions of the British Model.
 And therefore President is a nominal executive, who is bound by the aid
and the advice of the CoM.
 Despite this judgment, the controversy related to whether the President
can exercise discretionary powers or not continued to linger.
 Parliament of India passed the 42nd Constitutional Amendment Act,
which changed the text of Article 74(1), and made the advice of the
CoM binding on the President, leaving no scope for ambiguity.
 Even a look at 75 (3) clarifies that the real powers of the executive are in
the hands of the Council of Ministers as it is the CoM that is collectively
responsible to the House of the People.
 Since responsibility is commensurate with power, it leaves no doubt that the
President is the nominal head under the Constitution.

Reconsideration of Advice given by the Council of Ministers: (11:39 AM)

 44th CAA added a proviso to Article 74(1), which has provided powers to
the President of India to ask the CoM, to reconsider the advice tendered
and such a power can be exercised in President's discretionary capacity.
  But if the CoM issues the advice for the second time, after such
reconsideration, the President is bound to act according to such advice.

Bar as to inquiry by the courts on the advice tendered by the Council of

Ministers: (11:47 AM)

 India has adopted the principle of separation of powers, and therefore

courts are not allowed to enter the executive domain.
 Putting a bar on the courts to question advice tendered to the president,
helps in ensuring the free and fair functioning of the executive in India.

Discretionary powers of the President of India (11:50 AM)

 Can submit for reconsideration of Council of Ministers, advice tendered in

the exercise of his function.
 In 1998, President asked for reconsideration of advice to impose Article
356 in Bihar.
 In the case of a hung parliament, President has the power to decide who
should be given the first opportunity to claim the stake to form the
government.

The topic for the next: Discretionary powers of President, Governor,

comparison between them.

Class22

Discretionary Powers of President: (9:11 AM)

 The president may ask the Prime Minister regarding the administration of
the affairs of the union.
 The president can ask for consideration of the Council of Ministers, any
matter on which decision has been taken by a minister without the
consideration of the rest of the Council.
 The president may exercise his discretionary powers to decide upon the
early dissolution of Lok Sabha if the Council of Ministers has been reduced
to a minority in the House of People.

Qualification for President of India: (9:28 AM)

 Be a citizen of India.
 The minimum age should be 35 years.
  Qualified to be elected as a member of the House of People (Lok
Sabha).

Qualifications for Vice President:

 Should be a citizen of India.

 The minimum age should be 35 years.
 Qualified to be elected as a member of the Council of Ministers.

Qualifications for the post of Governor:

 Should be a citizen of India.

 The minimum age should be 35 years.
 No such qualifications of being eligible to be a Member of Parliament.
 If a person holding a seat in parliament/state legislature goes on to become
President/Vice President/Governor, his/her seat in the legislature is deemed
to be vacated on the date he/she enters the office.

Removal of President: (9:47 AM)

 Grounds are violation of the Constitution.

 The exact meaning of violation: When the President takes any action in
contravention of the provisions of the Constitution.
 For the removal of the Vice-President and Governors, no ground has
been prescribed.

Procedure for impeachment of the President. (10:08 AM)

 Article 61 (3) calls for the principle of natural justice in case of

investigation of charges.
 The charges should be preferred by any house: Lok Sabha/Rajya
Sabha.
 A fourteen-day notice is required for introducing such a resolution.
 It should be written and signed by not less than 1/4th of the members of
that house.
 It should be passed by a majority of not less than two-thirds of the total
membership of the House.
 When a charge has been so preferred by either House of Parliament, the
other House shall investigate the charge or cause the charge to be
investigated and the President shall have the right to appear and to be
represented as such investigation.
  If as a result of the investigation a resolution is passed by a majority of not
less than two-thirds of the total membership of the House, then such
resolution shall have the effect of removing the President.

Removal of Vice President (10:22 AM)

 Resolution for removal of Vice President is introduced in Council of

States (Rajya Sabha).
 At least 14 days' notice is needed.
 When the resolution for the removal of the Vice President is taken, the
Deputy Chairman of Rajya Sabha precedes the proceedings.

Election of President of India: (11:52 AM)

 The election for the post of the President of India takes place as per the
system of proportional representation, with a single transferable vote and
secret ballot.
 Both the terms proportional representation, and ‘single transferable
vote’ are misnomers.
 As the idea behind mentioning the term ‘proportional representation’ is to
convey that the method is not First Past The Post System.
 The ‘Single Transferrable Vote’ is also a misnomer, as every voter is
supposed to indicate more than one preference among the candidates.
 A candidate to be successful should get more than 50% of the total
value of the votes polled at the elections.
 Therefore, the correct term to describe the process would be an
alternate voting system.

Electoral College

 The electoral college of the President consists of elected members of the

Parliament and elected members of Legislative Assemblies of the States,
including Delhi and Puducherry.

Process of Election: (11:57 AM)

 In this system, the voters are supposed to rank the candidates as per
their preference, instead of indicating support for only one candidate.
 Ballots are initially counted for each voter's top choice, and if a candidate
wins more than half of the total value of votes, based on first choices, that
candidate wins.
  If not, then the candidate with the fewest votes is eliminated and the voters
who selected the defeated candidate as a first choice, then have their
votes added to the total of their next choice.
 This process continues until a candidate has more than half of the votes in
his favor.
 The constitution-makers adopted this process from the method of
election of the House of Representatives in Australia.

Parity between the States: (12:05 PM)

 In order to introduce parity between the states, the formula used to

determine the value of the vote of an MLA is as follows:
 Total Population of State/Elected MLAs in State/1000.
 For determining the population the figures of the 1971 Census would be
referred to till the first Census after 2026.
 This was done in order to ensure that the states who could control their
population should not be adversely punished for the same.

Parity between the States and the Union: (12:08 PM)

 The value of the vote of an MP is equal to the total value of votes of all the
MLAs/Total number of elected MPs.

The topic for the next class: Parliament, etc.

Class23

Provisions that ensure the independence of the President’s office: (9:13 AM)

 Method of election of the president: So that no single party has

complete say in the election.
 Fixed-term of 5 years.
 He is not supposed to hold the office of profit.
 A seat in the legislature is deemed to be vacated upon appointment.
 Article 361: Immunities and privileges.
 Salaries and expenses of the President’s office are ‘charged’ upon the
Consolidated Fund of India.
 Article 59 (4) The emoluments and allowances of the President shall not be
diminished during his term of office
 The removal process has been made extremely difficult.
Article 71: (9:39 AM)

 Article 71 provides that disputes related to the election of the President

and Vice President shall be decided by the Supreme Court whose decision
shall be final.
 In case, such an election is declared void, the decisions taken on or
before such date shall not be invalidated for that reason.
 A vacancy in the electoral college cannot be held as a ground for
declaring the election as void nor shall it be called into question in the
Supreme Court.

Election of Vice President: (9:43 AM)

 The electoral college of the Vice President of India:

 All Members of Parliament.
 Article 66 (1) says all members of an electoral college consisting of the
members of both Houses of Parliament.
 This means both nominated and elected members of Parliament consist of
the electoral college for Vice President.
 There is no role for the members of state legislatures.

Powers of the President: (9:47 AM)

 No bill can become a law without presidential assent.

 As per Article 85, the president can summon and prorogue both the
Houses of the Parliament.
 Summon and prorogue powers of the president are on the aid and
advice of the Council of Ministers.
 There should not be a gap of more than 6 months between the two
sessions of Parliament.

Article 86: (10:08 AM)

 He can address either or both the houses of the Parliament.

 President may send a message to either House of Parliament.

Article 87: (Special address of the President)

 Supposed to be compulsorily made.

 Every first sitting of the newly-elected Lok Sabha, and every year.
 If Lok Sabha fails to approve the Vote of Thanks motion, then
government resigns.
  To tell the parliament the causes of its summons.
 As per Article 85, the President also has the power to dissolve Lok
Sabha.
 Here also, there can be two cases:
 When there is a majority government (i.e. enjoying a majority in Lok
Sabha):
 Then dissolution is done with the aid and advice of the Council of
Ministers.
 When there is a minority government (coalition government):
 Discretionary power of the president. (to prevent the exploration by the
opposition parties of an alternate government).

Veto Powers of the President: (10:47 AM)

 No veto: In the case of Constitutional Amendment Bills, the President

has to provide assent compulsorily.
 There is no veto power in the case of CAA bills.
 Ordinary bills may be further classified into:
 Money Bills are mentioned in 110 of the Indian Constitution.
 And Other Bills.

Veto Powers (Dictation) 11:32 AM

 Since any bill passed by the parliament does not become a law unless the
president provides his assent in certain situations the president may
withhold his assent to a bill.
 Such powers of the president are termed veto powers.
 In the case of Constitutional Amendment Bills, the president is bound to
provide his assent as was introduced by the 24th CAA.

Suspensive Veto:

 As per Article 111, the president may exercise suspensive veto powers in
case of bills other than Constitutional Amendment and Money Bills.
 As per this power, the president can temporarily prevent a bill from
becoming law by sending it back to the parliament for its
reconsideration.
 It may be accompanied by a message suggesting amendments to the bill.
 However, if the Parliament passes the bill again, the president would
need to give his assent irrespective of the form in which the bill has
been sent to the president.
  Therefore, we can say that a suspensive veto can be used only once
with respect to a particular bill.
 This power of the president is his discretionary power, that is, he is not
bound by the aid and advice of the Council of Ministers.
 Kalam used this power in the case of the Office of Profit Bill in 2006.

Pocket Veto:

 Article 111 does not prescribe any time limit for the president to provide his
approval to a bill passed by the Parliament.
 In such circumstances, the president may choose to do nothing with the bill
and delay its passing for an infinite period.
 In 1986, President Giani Zail Singh used his veto powers to delay the
passing of the bill till the end of his tenure.
 This power is also a discretionary power of the president.

Absolute Veto: (11:43 AM)

 This power allows the president to reject the bill completely and is not
supposed to be exercised without the aid and advice of the Council of
Ministers.
 It is generally exercised in the case of a private members bill, or if a bill
introduce by the previous government, that was pending approval of the
president is rejected by the president upon the appointment of a new
Council of Ministers.

Qualified Veto: (11:47 AM)

 It is not exercised in India but in the USA.

 As per this, if the president of the USA sends the bill back to the
parliament for its reconsideration.
 The parliament needs to pass the bill with a higher majority, i.e. ⅔
majority to overrule the suspensive powers used by the President.

The ordinance making power of the President: (11:53 AM)

 In case of urgent need, and when the parliament is not in session.

 President will pass the ordinance on aid and advice of the Council of
Ministers.
 Article 123: If the president is satisfied to take immediate action, he may
promulgate such Ordinances as the circumstances appear to him to require.
  President can pass ordinances on the subjects on which Parliament can
legislate.

The topic for the next class: Ordinance making power of President, mercy
powers of President, etc.

Class24

Ordinance making power of the President: (9:12 AM)

 The Indian Constitution, under Articles 123 and 213, provides

ordinance-making powers to the president and governors.
 The President or Governor may promulgate an ordinance if either house of
Parliament or State legislature is not in session and the President or
Governor is satisfied that the circumstances exist for him to take immediate
action.
 The satisfaction of the President is not his personal satisfaction but
rather the satisfaction of the Council of Ministers.
 Ordinances can be promulgated only on those subjects on which the
Parliament or the State Legislature is competent to make laws as the
case may be.
 This power may be misused by the executive to bypass the scrutiny of the
Parliament and also has an effect on the separation of powers.
 Therefore, several checks and balances have been created to prevent the
misuse of this power.

Inherent dangers involved with the use of Ordinance making powers: (10:09
AM)

 A minority government may use the ordinance route to avoid exposing its
status in Parliament.
 The executive may use the ordinance route to avoid the discussion in
Parliament on a bill that may generate an adverse reaction.

Safeguards against misuse of Ordinance making power: (10:12 AM)

 The ordinance should be passed within 6 weeks of reassembly of both the

houses of the Parliament.
 President may withdraw the ordinance at any time.
 Parliament may also disapprove of the ordinance by passing a
resolution before the expiry of six weeks period.
  The ordinance must be tabled in the parliament along with a statement of
reasons justifying the rationale behind the promulgation of such an
ordinance.

Judicial review of the Ordinance making power (10:15 AM)

 In RC Cooper vs. Union of India, SC has held that ordinance-making

power is also subject to judicial review.
 In AK Roy vs. Union of India, the court held that satisfaction is not the
personal satisfaction of the President.
 The court cannot question the advice given by the Council of Ministers, but
there should be no malafide intention behind the exercise of Ordinance
making power.

Re-promulgation of Ordinances: (10:17 AM)

 In DC Wadhwa vs. the State of Bihar, the court held that re- promulgation
of ordinances to avoid the scrutiny of the legislature is a fraud on the
Constitution and such power should be exercised only when the
legislature is overburdened with work or the session was too short to
consider the legislation appropriately.
 In the above circumstances, the Governor or the President may be
justified in re-promulgating the ordinances.

Critique of DC Wadhwa Judgement: (10:20 AM)

 Several scholars and analysts believe that the DC Wadhwa judgment has
provided the executive with an excuse to re-promulgate the ordinances by
either calling a shorter session of the legislature or on the basis that the
legislature is overburdened with work.
 This has led to unwarranted re-promulgation of ordinances, for example, the
Land Acquisition Ordinance passed by the central government in 2014 was
kept alive for nearly 3 years through the re-promulgation route until it was
finally passed by the Parliament in 2017.
 In Bihar, 265 ordinances were passed between 1967 to 1981, and some of
them were kept alive for 14 years through the re-promulgation route.

Clemency powers of President: (10:34 AM)

 No judicial system is free from errors and therefore it is important that a

person convicted of a crime where his guilt has not been proven beyond
 a reasonable doubt, the executive should be able to do justice in the
public interest.
 Under Article 72, and 161 of the Constitution of India, the president, and
governor have been provided with clemency powers which are not
discretionary power, and is supposed to be exercised on the aid and the
advice of the Council of Ministers.
 Pardon:
 This power removes both the sentence and the conviction. And
completely absorbs the convict from all the sentences, punishments,
and disqualification.
 Essentially it amounts to turning the clock back and is supposed to be
exercised only in exceptional circumstances.
 The power to pardon death sentences is only available to the president
and not to the Governor.
 Remission:
 Under this power, the quantum of punishment is changed, that is the
duration of punishment is reduced but the nature and the character of the
punishment remain the same.
 Commutation:
 It changes the type of sentence to a lighter punishment, for example, the
death sentence is commutated into life impresionment.
 Respite:
 Under this power, the nature of punishment is changed into a lighter one
due to certain extraordinary or special circumstances. For example, a
pregnant woman may be given a respite, and rigorous imprisonment may be
changed into simple imprisonment.
 Reprieve:
 It allows a delay in the execution of a sentence and therefore results in
putting a stay for a temporary period.

Judicial Review of Clemency Powers: (11:49 AM)

 In Kehar Singh and Epuru Sudhakar Case, the court held that judicial
review of clemency powers is possible in certain circumstances.
 When the order has been passed without application of mind or on the
basis of irrelevant considerations.
 If it was passed without taking the advice of the Council of Ministers.
 If it was passed with a malafide intention.
 If relevant facts important to the plea were kept out of consideration.
  Further, in Kehar Singh Case, the court stated that the exercise of mercy
powers by the President or the Governor is an act of grace and the
petitioner has no right to an oral hearing.

Delay in the disposal of mercy petitions: (11:53 AM)

 Considering the excessive delays in disposing of mercy petitions of death

row convicts, the court held that, it can be a ground for commutation of
capital punishment into life imprisonment, irrespective of the nature of the
crime. (Shatrughan Chauhan Case).
 This overruled an earlier judgment, where the court stated, that convicts
charged with crimes such as terrorism, cannot come to the court for
commutating their death sentence. (Devendra Singh Bhullar 2013)

Factors to be taken into consideration while exercising pardoning

powers: (11:56 AM)

 The seriousness of the offense.

 If there is a doubt over the convict’s guilt.
 The health of the convict, especially if he or she is suffering from a
serious illness.
 Post-conviction conduct of the prisoner.
 The effect of carrying out the punishment on society and the family of the
convict.

Topic for the next class: Difference between the clemency powers of
President and Governor, Prime Minister, Council of Minister, etc.

Class25

Relationship between Prime Minister and Council of Ministers, Prime

Minister and President: (09:10 AM)

 Appointment of Prime Minister and other Ministers:

 Article 75 holds that the Prime Minister shall be appointed by the President
and the other Ministers shall be appointed by the President on the advice of
the Prime Minister.
 However, certain conventions are followed by the President in
appointing the Prime Minister:
 Priority should be given to a political party which has got a clear majority in
the look sabha.
 In case, the above is not possible, the President should invite the leader of
a pre-poll alliance that enjoys an absolute majority in Lok sabha.
 If above these two situations are not possible:
 Then there is a hung Parliament and in the case of hung Parliament, the
President exercises the discretionary powers to decide who should be
invited to form the government.
 There are no prescribed rules in the Constitution which prescribe the order
in which the President should invite the political party or coalition to form
the government.
 The President may call the largest party to form the government.
 The President may call the largest pre-poll alliance to form the
government.
 The President may also call the largest post-poll coalition to form the
government.
 After the appointment of the Prime Minister, the Prime Minister provides the
list of names to the President for appointment as ministers in the Council of
Ministers.
 Composition of Council of Ministers: (09:30 AM)
 There is a maximum cap on the size of CoM i.e. 15% of the total
strength of the Lok sabha. It was done by Article 75 (1A) through the
91st Constitutional Amendment Act,2003.
 The same is applicable to the State Council of Ministers through Article
164(1A) added through the 91st Constitutional Amendment Act,2003.
 The reasons for this cap are as follows:
 To curb the evergreening increase in the size of CoM due to the
creation of new ministries.
 It leads to inefficiency in the administration against the principle of
Minimum Government and Maximum Governance.
 Greater administrative cost due to excessive ministries.
 Composition of CoM:
 Cabinet Ministers: It consists of the selected most important ministers
having important ministries.
 Ministers of State with independent charge of a Ministry. They may be
invited to attend the cabinet meetings.
 Ministers of State who do not have independent charge of a ministry.
They may work under the cabinet ministers or minister of state having
independent charge of the ministry.
 Deputy Ministers.
 The constitution has not discriminated between CoMs and other
ministers.
  The allocation of work to different ministers is done by the President under
his powers of 77(3) to make rules for the convenient transaction of
business and allocation of work of the Government of India.
 Parliamentary secretaries are ruling party members appointed to assist
ministers. They are regarded for all practical purposes as deputy ministers
having access to all official files and documents.
 Relationship between Prime Minister and Council of Ministers:
(10:10 AM)
 The PM recommends the person who can be appointed as minister by the
President.
 He can allocate and change the Portfolios among the ministers
according to his will.
 In case of difference of opinion arises between the PM and any of the
ministers or between a minister or the rest of the CoM, the PM can ask the
minister to resign or can advise the President to remove him.
 Under Article 75(2), the Ministers hold the office during the pleasure of the
President which means they can be removed from this position by the
President. This power of removal is supposed to be exercised with the aid
and advice of the PM.
 The PM presides over the meetings of the CoM and influences the
decisions of this body.
 He guides, directs, controls and coordinates the activities of all the
ministers.
 By resigning from his office or due to his death, the PM can bring about the
collapse of the CoM.
 PM plays a very crucial role in ensuring the collective responsibility of the
CoM to the Lok Sabha.
 Relationship between PM and President: (10:24 AM)
 Pm is the channel of communication between the President and the
CoM.
 Article 78(1) holds that It shall be the duty of the Prime Minister to
communicate to the President all decisions of the council of Ministers
relating to the administration of the affairs of the union and proposals for
legislation.
 The PM is supposed to furnish the information to the President when he
desires the same. This is the discretionary power of the President.
 All the important appointments for the various constitutional and
statutory posts are made by the President on the advice of the PM.

Relationship between PM and Parliament: (10:52 AM)

  The PM is the leader of the house in whichever house he is a member of.
 He advises the President with respect to the summoning and proroguing of
the sessions of the Parliament.
 He can recommend the dissolution of Lok Sabha to the President at any
time.
 He makes important announcements with respect to the government
policies in both the houses of the Parliament.

Discretionary powers of the Governor: (11:02 AM)

 Article 163(1) holds that there shall be a council of Ministers with the
Chief Minister as the head to aid and advise the Governor in the
exercise of his functions, except in so far as he is by or under this
constitution required to exercise his functions or any of them in his
discretion.
 Constitutional discretionary powers of the Governor:
 Under Schedule 6, If there are different Scheduled Tribes in an autonomous
district, the Governor has been given discretionary powers.
 Para 9(2) of Schedule 6 gives Governor the discretionary power to decide
the share of royalties to be made to the district council in case of a dispute.
 Article 371A gives the discretionary power to the Governor of Nagaland
with respect to the maintenance of peace and stability in the Tuensang hill
areas of the Nagaland.
 Under Article 371F, the discretionary powers have been given to the
Governor of Sikkim for the maintenance of peace and social and
economic advancement of Sikkim.
 Under Article 371H, the Governor of Arunachal Pradesh shall have
special responsibility with respect to law and order in the State of
Arunachal Pradesh
 Under Article 200, in case a bill passed by the state legislature that in the
opinion of the Governor derogates the power of the high court of the
state, he is duty-bound to reserve such a bill for the assent of the
President.
 Article 163(2) holds that if any question arises whether any matter is or is
not a matter as respects which the Governor is by or under this
Constitution required to act in his discretion, the decision of the Governor in
his discretion shall be final, and the validity of anything done by the
Governor shall not be called in question on the ground that he ought or
ought not to have acted in his discretion
  Situational discretionary powers of the Governor:
 In the case of a hung assembly, the Governor has the discretionary
power to decide who should be invited to form the government.
 In case, the CoM loses the majority in the legislative assembly, the
Governor has the discretionary power to dismiss the minority
government.
 In case, the CoM loses the majority in the legislative assembly and advises
the Governor to dissolve the legislative assembly, the Governor has the
discretionary power to dissolve the assembly or not.
 The veto powers with respect to the legislation i.e. Suspensive and
Pocket Veto power.
 Reserving a bill for the assent of the President under Article 200.
 Under Article 356, the report of the Governor bringing to the notice of the
President the failure of the constitutional machinery in the state is a
discretionary power of the Governor.
 Reserving a bill for the assent of the President:(11:42 AM)
 The Governor in his discretionary power may reserve a bill for the
assent of the President if it is important to do in the national interest.
 Under the provisions of Article 201, the President may either provide his
assent or withhold his assent unless it is a money bill.
 If the President sends the bill back for the reconsideration of the legislature,
the legislature is supposed to get back to the President within 6 months and
the President is not bound to provide his assent the second time and any
number of subsequent times irrespective of the views expressed by the
State Legislature.
 Once a bill is reserved by the governor for the assent of the President, the
Governor does not play any further role in the process of enactment of the
bill.
 The President may also exercise his pocket veto powers in case of state
legislation.
 Examples include the NEET Bill passed by the Tamil Nadu Legislative
Assembly has been reserved for the assent of the President, and the
GCTOC (Gujarat Control of Terrorism and Organised Crimes) Bill passed by
the Gujarat Legislature couldn't become law for more than 16 years as it
had been reserved for the assent of the President.

Appointment and Removal of the Governor: (11:54 AM)

 There are no constitutional provisions for the eligibility of the

appointment of the Governor and removal of the Governor.
 Reasons for not opting for the elections for the office of Governor:
  An elected Governor would defeat the purpose of the institution of the
Governor as it should be an independent office and not politicized.
 A political deadlock may arise between the CM and the Governor.
 It may also lead to the development of the secessionist tendency among the
states.
 If CM and Governor belong to the same party, then the Governor
wouldn't be able to independently perform his discretionary powers.
 Issues in the appointment of Governor:
 The system used for the appointment of Governor is called a spoiled
system as there are no eligibility criteria for the appointment of
Governor. It is done on the basis of the merit system.
 Even the retired IAS or judges are now appointed as the Governors.
 It has become a post for the rehabilitation of the rejected politicians.
 Appointments are not done with the consultation of the state
government.
 Recommendations made for the appointment of the
Governor:(12:06 AM)
 By Sarkaria Commission:
 Only eminent persons should be appointed as Governors.
 The Governor appointed should not belong to the same state.
 The Governor should be politically inactive in the recent past.
 He Should be a detached figure and should not be intimately connected
with the local politics of the state.
 By Venkatachalliah Commission:
 The tenure of the Governor should be fixed except for compelling
reasons.

The topic of the next class is issues related to the removal of the
Governor and Emergency provisions.

Class26

Recap of the last class (09:07 AM) Removal

of the Governor (09:10 AM)

 The Governor can be removed by the President. There are no

provisions in the constitution for the removal of the Governor.
 Issues with the removal of Governor:
 Wholesale removal of the Governors as per the pleasure of the
President.
 It undermines the independence of the position of the Governor.
  Untimely removal with malafide intentions.
 Removal purely on the basis of change in political parties at the center.
 In B.P. Singhal Vs UoI, 2010:
 The President, in effect the central government, has the power to
remove a Governor at any time without giving him or her any reason,
and without granting an opportunity to be heard.
 However, this power cannot be exercised in an arbitrary, capricious, or
unreasonable manner. The power of removing Governors should only be
exercised in rare and exceptional circumstances for valid and compelling
reasons.
 The mere reason that a Governor is at variance with the policies and
ideologies of the central government, or that the central government has lost
confidence in him or her, is not sufficient to remove a Governor.
 Thus, a change in central government cannot be a ground for the removal of
Governors, or to appoint more favorable persons to this post.
 A decision to remove a Governor can be challenged in a court of law:
 In such cases, first, the petitioner will have to make a prima facie case of
arbitrariness or bad faith on part of the central government.
 If a prima facie case is established, the court can require the central
government to produce the materials on the basis of which the decision
was made in order to verify the presence of compelling reasons.
 Recommendations for the removal of the Governor:
 According to Punchhi Commission:
 The phrase during the pleasure of the President should be removed
from the constitution.
 The Governor should be removed through a resolution in the state
legislature.
 Venkatachalliah Commission:
 He should be allowed to serve the tenure of 5 years and if he has to be
removed, then it should be done in consultation with the state legislature.

Emergency Provisions (09:51 AM)

 National Emergency:
 Under Article 352, if the President is satisfied that a grave emergency
exists whereby the security of India or of any part of the territory thereof is
threatened, whether, by war or external aggression or armed rebellion, he
may, by Proclamation, make a declaration to that effect in respect of the
whole of India or of such part of the territory thereof as may be specified in
the Proclamation.
 Only on the written advice of the cabinet, the President can proclaim a
national emergency. This provision has been added by the 44th
Constitutional Amendment Act, 1978.
 The original Article 352 contained internal disturbance in place of armed
rebellion. The internal disturbance was replaced by an armed rebellion by
the 44th Constitutional Amendment Act.
 Territorial extent of National Emergency:
 It can be either the entire territory of India or a part of it. The restriction of
the national emergency to a part of Indian territory was introduced by the
44th Constitutional Amendment Act,1978.
 Under Article 352(9), the President can also proclaim a national emergency
even before the occurrence of the war or on other grounds provided in the
constitution. There can also be multiple proclamations for the national
emergency on the various mentioned grounds in various parts of the
country
 Effects of National Emergency: (10:17 AM)
 On center-state relation:
 Legislative relations:
 Under Article 250, the Parliament has the power to legislate with respect to
any matter in the State List if a Proclamation of Emergency is in operation

Notwithstanding anything in this Chapter, Parliament shall, while a

Proclamation of Emergency is in operation, have, the power to make laws
for the whole or any part of the territory of India with respect to any of the
matters enumerated in the State List.

 However, such a law under Article 250 will remain in force up to 6

months after the proclamation of emergency ceases to exist.
 In case of a conflict between union and state law, the union law shall
prevail.
 Executive relations:
 Under Article 353(a), Effect of Proclamation of Emergency While a
Proclamation of Emergency is in operation, then notwithstanding anything
in this Constitution, the executive power of the Union shall extend to the
giving of directions to any State as to the manner in which the executive
power thereof is to be exercised.
 Under Article 353(b), the power of Parliament to make laws with respect to
any matter shall include the power to make laws conferring powers and
imposing duties, or authorizing the conferring of powers and the imposition
of duties, upon the Union or officers and authorities of the
 Union as respects that matter, notwithstanding that t is one which is not
enumerated in the Union List; Provided that where a Proclamation of
Emergency is in operation only in any part of the territory of India.
 Financial relations:
 Under Article 354, the President by order can suspend or modify the
distribution of revenues between union and states for the financial year in
which the proclamation of emergency ceases to exist. However, such an
order must be presented in both the houses of the Parliament.
 Fundamental rights: (11:17 AM)
 According to Article 358, when a proclamation of National Emergency is
made, the six fundamental rights under article 19 are automatically
suspended.
 Article 19 is automatically revived after the expiry of the emergency.
 It implies that the state can make a law against the freedoms provided
under Article 19 and can also take executive actions under this law.
However, under Article 358(2), it is subject to the condition that it should
contain the recital that is to give effect to the proclamation of emergency.
 The 44th Amendment Act laid out that Article 19 can only be suspended
when the National Emergency is laid on the grounds of war or external
aggression and not in the case of armed rebellion.
 Under Article 359, the President is authorized to suspend, by order, the
right to move any court for the enforcement of Fundamental Rights during
a National Emergency.
 The 44 Amendment Act mandates that the President under article 359
cannot suspend the right to move the court for the enforcement of
Fundamental Rights guaranteed by Articles 20 and 21.
 On the duration legislature:(11:48 AM)
 Under Article 83, while a Proclamation of Emergency is in operation, be
extended by Parliament by law for a period not exceeding one year as a
time and not extending in any case beyond a period of six months after s
the Proclamation has ceased to operate.
 Under Article 172, while a Proclamation of Emergency is in operation, be
extended by Parliament by law for a period not exceeding one year at a
time and not extending in any case beyond a period of six months after
the Proclamation has ceased to operate.
 Safeguards with respect to article 352 by 44th Constitutional
Amendment Act, 1978:
 The proclamation order must be made on the written advice of the
cabinet.
  Any such order of proclamation must be approved by both the Houses of
Parliament by a special majority in each house within one month of the
making such an order. Originally constitution mentioned a simple majority
and two months. If Lok Sabha is dissolved when an emergency
proclamation is made, then the council of state i.e. Rajya Sabha must
approve the emergency in one month and Lok sabha must approve it within
30 days of its reconstitution.
 If at least 1/10th of members of Lok Sabha give in writing to call for a special
sitting of Lok Sabha for disapproval of the emergency and if the resolution is
passed by Lok Sabha, then the emergency will cease to exist. Such notice
must be given to Lok Sabha Speaker if Lok Sabha is in session and if the
Lok Sabha is not in session, then it should be given to President. Within 14
days of such notice, the resolution should be taken up for voting.
 In the original constitution, the national emergency once approved will
remain in force until revoked but now it is applicable for 6 months and for
subsequent extension of national emergency by 6 months at a time, again
a resolution needs to be passed by both the houses with special majority.
 The national emergency is also subject to the Judicial review.

The topics for the next class are State Emergency, Financial Emergency,
and Union Parliament.

Class27

A brief revision of the previous class

Emergency Provision (continues..)

ADM Jabalpur vs Shivkant Shukla (9:10 AM)

 “The President issued orders under the Constitution of India, art. 359(1)
suspending the right of any person to move any court for enforcement of
fundamental rights under arts. 14, 21 and 22, and 19 for the duration of the
emergency. Following this declaration, hundreds of persons were arrested
and detained all over the country under the swoop of the Maintenance of
Internal Security Act, 1971 Various persons detained filed petitions in
different high courts for the issue of the writ of habeas corpus.”
 “The high courts broadly took the view that the detention may be
challenged on the grounds of ultra vires, rejecting the preliminary
 objection of the government. Aggrieved by this the government filed
appeals.
 Despite every high court ruling in favor of the detenus. The Supreme Court
ruled in favor of the government. What the court except for Khanna, J.
failed to realize is that the right to personal life and liberty are human rights
and is not a gift of the Constitution.” Article 4 recognizes the right to life and
personal freedom as an ineffable right in emergency situations, even in the
Universal Declaration on Civilian and Democratic Life.

The extent of Judicial Review power w.rt. A.352 (9:39 AM)

 This involves examining-

 Whether relevant material was available to proclaim an emergency
under Art 352 to form the satisfaction of the President
 Whether there was a malafide intention or not

Revocation of Article 356 (9:45 PM)

 A proclamation of President’s Rule may be revoked by the President at

any time by a subsequent proclamation.
 Such a proclamation does not require parliamentary approval
 Reference of Art 257 given
 Article 355 & Article 365 are said to be Precursors to Article 356-
 Article 355: Duty of the Union to protect States against external
aggression and internal disturbance
 It shall be the duty of the Union to protect every State against external
aggression and internal disturbance and to ensure that the Government of
every State is carried on in accordance with the provisions of this
Constitution.
 Article 365: Effect of failure to comply with, or to give effect to,
directions given by the Union
 Where any State has failed to comply with or to give effect to, any
directions given in the exercise of the executive power of the Union under
any of the provisions of this Constitution, it shall be lawful for the President
to hold that a situation has arisen in which the Government of the State
cannot be carried on in accordance with the provisions of this Constitution.
 Grounds for imposing Article 356
 Report of the governor or otherwise – the president is satisfied that
governance of the state could not be carried out according to the
provisions of the constitution
 Reference to Art 257 clause 2
 Effects of the imposition of Article 356
 i)Executive:
 President may assume all or any executive power of the state
 That is, The council of ministers headed by chief ministers gets
dismissed and all executive powers come into the hands of the
President.
 ii)Legislative:
 President can declare that the powers of the state legislature be
exercised by parliament or under the authority of parliament
 The state legislature is suspended- this is Animated Suspension
 It may even be dissolved but only after the proclamation of 356 has
been approved by parliament
 Dissolution may or may not happen
 Reference to Art 356(2)
 iii)Presisnedt may suspend certain provisions of the constitution wrt that
state
 Exception-
 The president cant assume the owers of HC to himself(it is an example
that even in the most difficult situation Separation of Powers remains
intact)
 Safeguards with respect to Art 356:
 Has to be approved within two months by a resolution of both the
Houses of Parliament-Simple majority
 However, if the proclamation of President’s Rule is issued at a time when
the Lok Sabha has been dissolved or the dissolution of the Lok Sabha
takes place during the period of two months without approving the
proclamation, then the proclamation survives until 30 days from the first
sitting of the Lok Sabha after its reconstitution
 ii)Subsequent proclamation for revoking can be made
 iii)Duration: six months-->1 year-->Maximum 3 years
 That is, it can be extended for a maximum period of three years with the
approval of the Parliament, every six months
 Hung Assembly-
 A situation in which no party or alliance can claim a majority in the
legislative assembly
 Reference to Art 357(2) -
 Any law made in exercise of the power of the Legislature of the State by
Parliament or the President or other authority referred to in sub-clause
(a) of clause ( 1 ) which Parliament or the President or such other
authority would not, but for the issue of a Proclamation under Article
 356, have been competent to make shall, after the Proclamation has
ceased to operate, continue in force until altered or repealed or
amended by a competent Legislature or other authority
 Break 11:10 AM-11:24 AM

Issues associated with Art 356 (11:24 AM)

 The term failure of constitutional machinery is vague and subjective and

prone to misuse
 Governors' reports are often manipulated to the advantage of the party
ruling at the center
 It is often invoked to dissolve the LA to deny an opportunity to the
opposition to stake a claim at govt formation
 Has been invoked 120 times since the commencement of the
constitution
 Often petty or frivolous grounds have been used to invoke art 356
 SR Bommai vs UOI 1994
 Art 356 is an exceptional provision and should be in exceptional
circumstances only
 The powers of the president to invoke Art 356 are not absolute-there
should be an existence of relevant material on the basis of which such
decision has been taken or governors' report
 Dissolution of assembly should not take place till approval is provided by
the parliament
 Art 74(2) only bars the courts from inquiring into advice given by CoM but
the court can ask for the production of relevant material
 JR of proclamation under Art 356 is possible and in case the malafide or
arbitrary action the court may revoke the proclamation and even restore it to
what it was prior to the use of proclamation including reinstating LA and
CoM

Reasons for declining use of Art 356(11:44 AM)

 SR Bommai Judgement
 Coalition parties
 Presidential activism

Recommendations of Sarkaria commission (11:52 AM)

 Any abuse or misuse of this drastic power would damage the

democratic fabric of the Constitution.
 Article 356 should be used sparingly, as a last measure, when all
available alternatives had failed to prevent or rectify a breakdown of
constitutional machinery in a State.
 It further recommended that a warning be issued to the errant State, in
specific terms that it is not carrying on the government of the State in
accordance with the Constitution. Before taking action under Article 356,
any explanation received from the State should be taken into account.
 In a situation of political breakdown, the Governor should explore all
possibilities of having a Government enjoying majority support in the
Assembly.

Article 360: Financial Emergency (11:56 AM)

 Grounds:
 (1)If the President is satisfied that a situation has arisen whereby the
financial stability or credit of India or of any part of the territory thereof is
threatened, he may by a Proclamation make a declaration to that effect
 (2)A Proclamation issued under clause ( 1 )

(a)may be revoked or varied by a subsequent Proclamation;

(b)shall be laid before each House of Parliament;

(c)shall cease to operate at the expiration of two months unless before

the expiration of that period it has been approved by resolutions of both
Houses of Parliament: Provided that if any such Proclamation is issued at
a time when the House of the People has been dissolved or the
dissolution of the House of the People takes place during the period of
two months referred to in sub-clause (c), and if a resolution approving the
Proclamation has been passed by the Council of States, but no resolution
with respect to such Proclamation has been passed by the House of the
People before the expiration of that period, the Proclamation shall cease
to operate at the expiration of thirty days from the date on which the
House of the People first sits after its reconstitution unless before the
expiration of the said period of thirty days a resolution approving the
Proclamation has been also passed by the House of the People

 Effects:
 (3)During the period any such Proclamation as is mentioned in clause ( 1 )
is in operation, the executive authority of the Union shall extend to the
giving of directions to any State to observe such canons of financial
 propriety as may be specified in the directions, and to the giving of such
other directions as the President may deem necessary and adequate for
the purpose
 (4)Notwithstanding anything in this Constitution

(a)any such direction may include

(i)A provision requiring the reduction of salaries and allowances of all or

any class of persons serving in connection with the affairs of a State;

(ii) A provision requiring all Money Bills or other Bills to which the
provisions of Article 207 apply to be reserved for the consideration of
the President after they are passed by the Legislature of the State;

(b) It shall be competent for the President during the period any
Proclamation issued under this article is in operation to issue directions
for the reduction of salaries and allowances of all or any class of persons
serving in connection with the affairs of the Union including the Judges of
the Supreme Court and the High Courts

 Duration of emergency:
 In force, till infinite period till revoked
 Safeguards:
 Parliamentary approval within 2 months by a simple resolution of both the
houses of parliament
 Discussion of 2022 UPSC PYQs (12:10 AM)

Next Class: Continuation of discussion of PYQs continues

Class28

Parliament (09:13:00 AM)

 Part V of the Indian Constitution deals with this part.

 Composition of the Parliament: As per Article 79 the Parliament of India
should consist of the President, House of People (Lok Sabha), and Rajya
Sabha (Council of State).
 The representation in the Council of states varies.
 MLAs in particular states supposed to choose the MPs for the Council of
states. Thus the member of the Rajya Sabha indirectly represents the state.
  Election for the members of the House of the people is done directly by the
people of India.
 The maximum strength of the Lok Sabha is 550. The total membership of
the House of People is 543.
 Rajya Sabha has a maximum strength of 250 and the total membership
now is 245. 233 are the representative are the states and UTs. Delhi and
Pondichery have been provided with seats in the Rajya Sabha.
 12 members of the Rajya Sabha are nominated by the President on the
basis of their special knowledge and experience.

Tenure of the House of Parliament

 The Tenure for the House of People (Lok Sabha): Normally it is 5

years. However, it may be dissolved earlier as well.
 The decision with respect to dissolution is taken by the President. In normal
circumstances, it will be as per the advice of the CoM. In normal cases, the
President does not have discretionary power.
 In the case of the minority government advising early dissolution, the
president may exercise discretionary power.
 Rajya Sabha is the permanent house of the Parliament. However, every MP
enjoys a tenure of 6 years.
 Every 2nd year 1/3rd members of the Rajya Sabha retire.

Constitutional provision

 Article 79: There shall be a Parliament for the Union which shall consist of
the President and two Houses to be known respectively as the Council of
States and the House of the People.
 Article 80: Composition of the Council of States.
 Article 81: Composition of the House of the People.
 Article 83: Duration of Houses of Parliament.
 The duration of the Lok Sabha can be extended from its normal duration by
Parliament by law for a period not exceeding one year at a time and not
extended in any case beyond a period of six months after the Proclamation
has ceased to operate.
 Allocation of the seats of the Rajya Sabha for different
states: Number of seats allocated to a state divided by the population of
the state: the ratio should remain constant so that parity could be
maintained.
 For the population counting for this calculation, we are using the census of
1971 till the years 2026.
  For the purpose of drawing the boundary of a territorial constituency, the
population figures of the 2001 census will be used till the 1st census after
2026.
 Article 82: Upon the completion of each census, the allocation of seats in
the House of the People to the States and the division of each State into
territorial constituencies shall be readjusted by such authority and in such
manner, as Parliament may by law determine
 Delimitation Commission has been entrusted with the job of determining the
seats allocated to a state and the boundaries of the constituencies within
the states. It has been created by the Delimitation Act passed by the
Parliament under Article 82 of the Indian Constitution.
 The already elected Lok Sabha is not affected by the recommendations of
the Delimitation Commission. These recommendations will come into effect
only after President is notified, till that time the existing system would be
deployed.

Unequal representation of states in Rajya Sabha (10.22:00 AM)

 States have been provided with unequal representation in the Rajya

Sabha. This number varies from 1 to 31. This is in contrast to the US
Senate where every state is provided with equal representation.
 Arguments against the present system of unequal representation on
Rajaya sabha:
 The smaller states feel that this system is discriminatory towards them.
 The Rajya Sabha has become the replica of the Lok Sabha.
 The USA is also a federation and provides equal representation in the
upper house.
 Arguments in favor of the present system of unequal
representation on Rajaya sabha:
 The equal representation will lead to more demand for several smaller
states.
 The equal representation will lead to an ever-expanding size of the
Rajya Sabha.
 The equal representation will lead to stalling of Rajya Sabha by the
smaller states.
 The system of equal representation in the Rajya Sabha will be
discriminatory against large states with huge populations.

Qualifications and Disqualification for the membership of

parliament (10:29:00 AM)

 Age: 25 years for Lok sabha and 30 years for Rajya sabha.
  For both, the person should be a citizen of India. The method to acquire
citizenship does not matter.
 A person need not be a natural-born citizen of India.
 Article 84: Qualification for membership of Parliament.
 One oath is taken while filing the nomination and the other was taken
after the election.
 Article 84 (c): The person should possess such other qualifications as
may be prescribed on that behalf by or under any law made by Parliament.
These other qualification criteria have been mentioned in the
Representation of People Act 1951.

Qualification under the Representation of People Act 1951

 In the case of the reserved seat for Scheduled Caste in Lok Sabha, the
person must be Scheduled Caste in either that state or elsewhere. He
must be a voter in any constituency in India.
 The same is the case with Scheduled Tribes. The person must be
Scheduled Tribes in either that state or elsewhere. He must be a voter in
any constituency in India.
 In case of a seat reserved for the Scheduled Tribes in the autonomous
district of Assam, the person must be a Scheduled Tribes as recognized in
any autonomous district of Assam. That person should be also an elector in
a constituency in which that district falls.
 The same is applied to the Scheduled Tribes seat in Lakshadweep. The
person must be a Scheduled Tribes as recognized in Lakshadweep. That
person should be also an elector in a constituency in Lakshadweep.
 In the case of Sikkim, the eligibility requirement is that the person
should be an elector in the constituency of the Sikkim.
 For the other seats of the Lok Sabha, the qualification is the person
should be elector of any constituency of India.

For the Qualification in the Rajya Sabha (Council of States)

 A person shall not be qualified to be chosen as a representative of any

State or Union Territory in the Council unless he is an elector for
Parliamentary Constituency (in India).
 The person should be an elector in any constituency in India. There is no
domicile requirement. This change was introduced in 2003 by an
Amendment Act. Prior to this the person representing the state had to be
a voter from a constituency in that state or UT only.
Amendment in 2003

 Did away with the domicile requirement: Section 3 of the RoPA, 1951
 The secret ballot was replaced with an open ballot.

Kuldip Nayyar vs. Union of India Case (2006)

 The court gave the verdict that there is no violation of basic structure as the
residence is not a constitutional requirement but a matter of qualification
made by the parliament under Article 84.
 As per the court, there is no violation of federalism.
 No constitutional requirement for secret voting in Rajya Sabha elections.
 Secret voting would prevent cross-voting and help in wiping out
corruption
 The Apex court held that the amendment will not have any impact on the
federal character of the Indian Constitution.

Arguments against the Amendment

 It compromises the interest of the state as Rajya Sabha helps the State in
voicing their opinion.
 If a person representing a state is not a resident of that state he would not
be able to express the issues of the people of the state in an effective
manner.
 As per some people, it compromises the principle of Federalism as
Rajya Sabha is a chamber of the states.
 Federalism is the part of the Basic Structure of the Constitution and
these changes that have been made, have affected the federal
character of the Indian Constitution.

Disqualification of the member of the Parliament (11:36:00 AM)

 Article 102 defined the Disqualification of the member of the

Parliament.
 These disqualifications are applicable to both one those who are
already members and those who want to be get elected.
 Article 102(a): The member should not hold any office of profit unless a law
of parliament declares that an office does not disqualify its holder.
 The Prevention of the Offices Act mentions the offices that are
exempted from the office of profit.
 If a person is of unsound mind and declared so by a competent court.
  The person is an undischarged insolvent. The person's liabilities have
become more than assets.
 If he is not a citizen of India, has voluntarily acquired the citizenship of a
foreign state, or is under any acknowledgment of allegiance or adherence
to a foreign state.
 If he is so disqualified by or under any law made by the parliament. The
name of the law is the representation of the People Act 1951.
 As per Article 102 (1), the decisions on such disqualification should be
taken by the President on the advice of the Election Commission of India
which is binding on him.
 If a person shall be disqualified for being a member of either house of the
parliament if he is so disqualified under the Tenth Schedule (anti-
defection) of the Indian constitution that was added under the 52nd
Amendment Act.

Office of the Profit (11:55:00 AM)

 Historical background for the origin of the office of the profit.

 King has started offering the seat of the MPs in his court to influence
their decision.
 MPs felt that this may lead to undue interference and influence of the
king on the Parliamentary functioning.
 Office of Profit was introduced to ensure the Separation of Power
 In India, we adopted the same principle as Britain but no law defines the
office of profit in India.
 We have laws that tell which offices are exempted from the Office of
Profit category.
 Supreme Court through its various judgments has provided the meaning of
the Office of Profit.

Definition of the term Office of profit

 There is no clear definition of office of profit in any law in India. Even

though exceptions have been provided to exclude certain offices from this
definition.
 In General terms, an office of profit is interpreted to be a position that
brings to the office holder some financial gain or advantage, or benefit.
The amount of such profit is immaterial.

Objective Behind the Office of Profit

  Members of the legislature hold the government accountable for its
work.
 The basic office of profit law is that if a legislature holds an office of profit
under the government, he/she might be susceptible to government
influences and may not discharge their constitutional duties impartially.
 The intent of the law is to ensure that there are no conflicts of interest in the
case of an elected member of a legislature.
 It simply seeks to enforce the concept of separation of power between the
legislature and the executive.

The topic for the next class discussion: Office of Profit will be continued.

Class29

Revision: (9:07 AM)

 Office of profit: Not defined as per law.

 The Office of profit is interpreted by the judiciary.

Factors for Office of Profit as per SC Judgment of 1964: (9:15 AM)

 Whether the government is the appointing authority.

 Whether the government has the powers to terminate.
 Whether the government determines the remuneration.
 What is the source of remuneration?
 What is the power that comes with that appointment?
 In addition, in the Jaya Bachan case, SC laid down that form of payment is
not relevant in determining an Office of Profit.
 Monetary gains could even be in form of an honorarium.
 Whether the office is capable of yielding profit.

Recommendations of 2nd ARC on the office of profit: (9:34 AM)

 2nd ARC has recommended that the law should be amended to define
Office of Profit on the following principles:
 All offices in a purely advisory capacity where the main function is to
provide policy inputs to the government shall not be treated as Office of
Profit irrespective of remuneration and perks associated with the office.
 All offices involving executive decision-making and the control of public
funds including, positions on governing boards of Public Undertakings shall
be treated as Office of Profit.
  If a serving minister, by the virtue of office, is a member or head of certain
organizations like the Planning Commission, where close coordination and
integration between the minister and the organization is vital for the
functioning of the government, it shall not be treated as Office of Profit.

Disqualifications under RoPA, 1951 (9:48 AM)

 Section 8 provides grounds for disqualification on conviction for certain

offenses.
 Conviction in case of heinous crimes such as rape, dowry, murder, etc.
 Section 8 (1) and 8 (2) provide a list of offenses, where a person convicted
of such an offense would be disqualified from the membership of parliament
and state legislature for a period of ‘term of imprisonment' and six years in
addition to it.
 Section 8 (3) provides that a person convicted of an offense with an
imprisonment of 2 years or more shall also be disqualified from the
membership for a period of six years plus the term of imprisonment.
 Section 8 (4) makes an exception for sitting legislators as they shall not be
disqualified automatically rather they would be provided a period of three
months during which they may file an appeal against conviction.
 And till the time the appeal is disposed of, they shall not be liable for
disqualification.
 In Lilly Thomas vs. Union of India, 2013, the Supreme Court held
Section 8 (4) of RoPA unconstitutional as Article 102 (1) (e) provides
powers to the parliament to make a law for disqualification.
 The Court stated that Parliament has no powers to prescribe a condition to
prevent disqualification of a person.
 Therefore, this section is beyond the competence of the Parliament of
India.
 Section 8 (A) provides that a person declared guilty of corrupt electoral
practice as defined in section 123 shall be disqualified if an order is made
by the High Court to the president of India.
 The President decides whether or not the person shall be disqualified
and if so, for what duration?
 This provision has several issues as an order has to be made by the
High Court and even if a person is found guilty, he or she may not be
disqualified as the decision rests with the President.
 Section 9 disqualifies a person from membership due to being found
guilty of corruption or disloyalty while holding a government office.
 The period of disqualification is 5 years.
  Section 9 (A) disqualifies a person on the account of having a contract
with the relevant government to provide goods or for the execution of
many works undertaken by the government.
 Section 10 disqualifies a person for holding the position as a managing
agent, manager, or secretary of a company in which the government has
25% or more stakes.
 Further Section 10 (A) disqualifies a person on the account of failure to
lodge an account of election expenses.
 Such a decision is supposed to be taken by the Election Commission of
India and the period of disqualification is of 3 years.

The exceptional power of the Election Commission under Section 11:

(10:43 AM)

 Under Section 11 the Election Commission of India may remove or reduce

the period of a disqualification after stating such reasons on the record.
 In 2019, the Election Commission of India removed the six-year
disqualification imposed on the Chief Minister of Sikkim for conviction in a
corruption case where he had served his sentence of one year.
 Question: On what grounds a people’s representative can be disqualified
under RoPA, 1951? Also, mention the remedies available to such a person
against his disqualification. (UPSC CSE 2019).

Anti-Defection Law in India: (11:19 AM)

 Anti-Defection Law was introduced by the 52nd Constitutional

Amendment Act, 1985, to curb defections that occurred due to
considerations of money or political office.
 The objective behind this law was to prevent defections that may affect the
stability of the government in power and to prevent corruption in Indian
politics.
 Provisions related to Anti-defection have been provided in Schedule X of
the Indian Constitution.
 This law is applicable to MPs, MLAs, and members of legislative
councils.

Disqualification on the grounds of changing the political party: (11:30

AM)
  If after getting elected a member of legislature voluntarily gives up
membership of the political party from which he or she contested the
elections.
 Resignation is covered under ‘voluntarily giving up’.
 It also includes even conduct and behavior of the person.

Disqualification on the grounds of changing political party: (11:41 AM)

 If after getting elected a member of legislature voluntarily gives up

membership of the political party from which he/she contested the
elections.
 If an independent member joins a political party after getting elected he
shall be liable for disqualification under the anti-defection law.
 If a nominated member joins a political party after 6 months of becoming a
member he shall be liable for disqualification.

Disqualification in case of voting contrary to the directions of the

political party: (11:51 AM)

 If a person votes contrary to the directions provided by the political party or

abstains from voting without prior permission or if such an action is not
condoned by the party within 14 days then he/she shall be liable for
disqualification under the anti-defection law.
 If the presiding officer resigns from the political party and joins a political
party after demitting the office, i.e. the office of the presiding officer, then
Anti-defection will not be applied.
 Exceptions:
 In case of a merger:
 If 2/3rd members of a political party in the legislature resign from the party
and join another political party or form a new party, anti-defection shall not
apply.
 Earlier splits were allowed. Now merger is allowed. This law was
supposed to curb horse trading, but now instead of the horse being
traded, the entire stable can be traded.
 Who decides the disqualification under Anti-Defection Law?
 The presiding officer decides, whose decision shall be final.
 In the case where Speaker’s disqualification is in question, then such
other person as appointed by the house shall continue the decorum.

The topic for the next class: Anti-Defection Law continued, drawbacks,
etc.
Class30

A Brief Overview of the Previous Class - 09.17 AM

Kihoto Holohan and Others v/s Zachillhu - 09.21 AM

 In this case, a challenge was made to the constitutional validity of the

anti-defection law.
 The court held that the provisions of this law do not subvert the democratic
rights of elected members in Parliament and the state legislature and nor
does it violate their conscience. However, paragraph 7 seeks to change the
operation and the effects of Articles 136, 226, and 227 of the constitution
which gives SC and HC jurisdiction in such cases.
 Any such provision should have been ratified by the state legislatures as per
proviso to Article 368(2) and therefore, paragraph 7 was held invalid.
 As far as the finality of the decision by the Speaker under paragraph 6 is
concerned, the court held it to be valid, however, it also stated that the High
Courts and the Supreme Courts can exercise judicial review under the
constitution.
 Judicial review should not cover any stage prior to the making of a
decision by the Presiding Officer.
 The Court also suggested that to maintain the independence of Individual
Parliamentarians, the whip of the political party should only be applicable in
2 cases -
 1) where the stability of the government is under threat. For example -
Incase of a no-confidence or confidence motion
 2) any matter that is central to the manifesto of the party in power.

Issues associated with Anti-defection law - 09.40 AM

 It compromises the freedom of speech and expression of individual

legislators by curbing dissent against the party's policies.
 By preventing Parliamentarians from changing parties, it reduced the
accountability of the government to the Parliament and to the people.
 It creates a conflict between the interest of a political party and the
interests of a constituency.
 The speaker is not time-bound to give his or her decision and in several
cases, Speaker has shown bias towards the ruling party by not exercising
powers of disqualification within a reasonable time.
  This law is not applicable to a pre-poll alliance that has emerged as a
reality in recent decades.

Recommendations of Expert bodies on the Anti defection law - 09.51

AM

 Dinesh Goswami Committee on electoral reforms suggested the issue of

disqualification should be decided by the President or the Governor on the
advice of the Election Commission.
 The Law Commission in its 170th report recommended that provisions
related to spilt and mergers should be deleted. Further, pre-poll electoral
alliances should be treated as political parties under the anti- defection law.
 NCRWC recommended that the vote cast by a defector to topple the
government should be treated as invalid.

Advantages of Anti-Defection law - 09.59 AM

 It provides stability to the governments by preventing shifts in party

allegiance.
 It ensures that candidates elected with party support and on the basis of the
party manifesto remain loyal to the party's policies.
 It promotes party discipline.
 Several countries have adopted similar laws including Bangladesh,
Singapore, and South Africa.

Vacation of Seats under Article 101 - 10.03 AM

 No person shall be a member of both the houses of the Parliament and

should vacate seats in one of the houses as per the Parliamentary law.
 A person can not simultaneously be a member of Parliament or state
legislature and in case he does not resign from the seat in the state
legislature, the seat in the Parliament shall be considered vacant.
 If a member does not attend the meetings of the Parliament for a
consecutive period of 60 days without the permission of the house shall
also be disqualified from the membership.
 Resignation from Parliament - A member may resign from his seat by
submitting the resignation to the presiding officer. It is the constitutional
duty of the presiding officer to ensure that such resignation is voluntary and
genuine, otherwise, he shall not accept such resignation.

Presiding Officers - 10.27 AM

  Chairman of Rajya Sabha -
 No separate process for election or removal.
 Entitled to Casting vote only. He or she can not vote in normal
circumstances.
 Deputy Chairperson of Rajya Sabha -
 The election is done by the members of Rajya Sabha by a simple vote.
 Removal is through a resolution passed by an effective majority of
members of Rajya Sabha.
 May also be removed by submitting a resignation to the Chairperson of the
Rajya Sabha.
 Qualification is to be a member of the Rajya Sabha.
 If he is not in the chair, he acts like an ordinary member of the Rajya
Sabha.
 If he is presiding, then he has the casting vote.
 Speaker of Lok Sabha -
 The election is by the member of the Lok Sabha through a simple voting
process.
 Removal is through a resolution passed by an effective majority of
members of Lok Sabha.
 Resignation is submitted to Deputy Speaker.
 No right to vote in the first instance. Only casting vote right.
 No casting vote right when the motion for his removal is voted upon.
 Can vote in the first instance when proceedings for his removal are
under consideration.
 Deputy Speaker of Lok Sabha -
 The election is by the member of the Lok Sabha through a simple voting
process.
 As a matter of convention, the deputy speaker belongs to the
opposition.
 Removal is through a resolution passed by an effective majority of
members of Lok Sabha.
 Resignation is submitted to Speaker.
 When not in the chair, he has the same powers as any other ordinary
member.
 When presiding, only casting vote is there.

Protem Speaker - 11.00 AM

 In India, the seniormost member of Lok Sabha is chosen as Protem

speaker or temporary speaker upon the constitution of a newly elected
Lok Sabha.
  Performs two functions -
 1) Administer oath to the newly elected members of Parliament.
 2) presides over the house for the election of the Speaker.

Break 11.07 AM - 11.25 AM

Parliament - 11.25 AM Sessions

of the Parliament

 Summoning and Proroguing session

 Not more than 6 months should elapse between two sessions of the
Parliament that is at least 2 sessions should happen in a year.
 Normally parliament has three sessions - Budget Session (Feb-March),
Monsoon Session (July-August), and Winter Session (December).
 11 AM-12 PM Question Hour (Rules and procedures of the Parliament); 12
PM-1 PM - Zero Hour Convention; 1 PM-2 PM - Lunch; 2 PM- Business of
Parliament.

Question Hour in the Parliament - 11.38 AM

 Lok Sabha starts every day with the Question Hour and the members
use it to hold the government accountable for its policies and action.
 During this hour, an MP can ask a Minister any question related to the
implementation of laws and policies under the control of the ministry.
 Submission of Question at least 15 days in advance.
 Starred Question -
 1) Oral answers by ministers.
 2) Up to 2 supplementary questions can be asked by that MP.
 3) Only 20 questions can be asked in a day.
 Unstarred Questions -
 1) Written replies
 2) Maximum of 230 unstarred questions are picked for the day.
 Short Notice Question -
 1) These relate to matters of urgent public importance and can be asked
with less than 10 days' notice.
 2) Like Starred questions, they are answered orally followed by
supplementary questions.
 3) No such questions have been admitted for the last 10 years in the
Parliament.

Zero Hour - 12.02 PM

  This period is used to raise matters that are urgent and can not wait for the
notice period required under other procedures.
 To raise a matter the MPs must give notice before 10 AM to the
presiding officer.
 The notice must also state the subject that they wish to raise in the
house.
 A presiding officer would decide if the matter would be allowed to be
raised or not.

Issues associated with the Question Hour - 12.05 PM

 In recent years, it has become the biggest casualty of Parliamentary

disruption.
 In the past, MPs were found guilty of asking questions after taking
money from vested interests.
 In recent times, the question hour has been suspended by the business
advisory committee.
 The time allocated to question hour usually goes to waste. For example
- In 2015, only 26% of the available time was utilised. In 2018, questions
were asked for only 22% of the allocated time.

Utility of Question Hour - 12.11 PM

 It ensures legislative control over the executive.

 It keeps the minister on his or her toes as the answers are published for the
consumption of the public.
 It ensures the system of checks and balances.
 It helps in informing the people about the functioning of the
government.
 It acts as a deterrent for the government to involve itself in financial
misdoings.
 In the past, it has ended up exposing the misdoings of the government.

Topics for the Next Class - Legislative business of the Parliament, Process
of passing Budget in the Parliament, Parliamentary committees

Class31

Practice Question: (9:14 AM)

  Individual parliamentarian’s role as the national lawmaker is on a
decline, which in turn, has adversely impacted the quality of debates
and their outcome. Discuss. (10 marks/150 words.)
 Discussion on the question was done.

Legislative Process (9:33 AM)

 Bill is draft legislation.

 Ordinary bills and Constitutional Amendment Bills (which can be
introduced in either house of parliament).
 Ordinary Bills:
 An ordinary bill can be classified into
 Non-financial bills, and bills concerning financial matters.
 Non-financial bills can be introduced in any house of parliament.
 Financial Bills:
 Money Bills and Financial Bill Type 1: Can be introduced in Lok Sabha
only.
 Financial Bill Type 2: Can be introduced in any house.
 Bills can be introduced by:
 Government or Private Member Bill.
 Private members can introduce all types of bills.

Introduction of a bill in the house: (9:49 AM)

 A member has to seek leave of the house.

 First reading of the bill:
 When the bill is put to the vote of the house as to whether it should be
introduced in the house for its consideration or not.
 Then it is put to vote of the house as to whether it should be introduced in
the house or not.
 It goes to the select committee of the house.
 Or the bill can be sent to the joint committee having members of both the
houses.
 General discussion is done on the bill.
 Clause by clause discussions is done.
 Various amendments may be suggested.
 Clause by clause 2nd reading is done.
 3rd Reading: Entire bill is put to vote.
 In the second house, the bill goes in the same.
 The second house may pass the bill.
 Or the second house may reject the bill, this is known as ‘deadlock’ in the
Parliament.
  Thirdly, the second house does not act on the bill for 6 months.
 Fourthly, the second house may suggest some amendments to the bill.
 After the amendments are suggested, the bill will make a second
journey to the first house.

Deadlock in Parliament: (10:26 AM)

 Deadlock in parliament refers to a situation when both the houses fail to

agree on a common version of the bill.
 Joint sitting: Where members of both the houses will sit together and
vote. Lok Sabha has the upper hand in a joint sitting.
 Joint sitting is conducted under Article 108.
 Joint sitting does not happen for Constitutional Amendment Bill.
 In the case of money bills, Rajya Sabha has limited powers, also joint
sitting is not possible.
 Lapsing of a bill:
 In the case of prorogation, there is no effect on the life of a bill.

Dissolution of Lok Sabha: (10:34 AM)

 First Case:
 In case a bill is introduced in Lok Sabha, pending in Lok Sabha: The bill will
lapse.
 Second Case:
 A bill introduced and passed in Lok Sabha, pending in Rajya Sabha
would also lapse.
 Third Case:
 Bill originating in Rajya Sabha, pending in Rajya Sabha, will not lapse on
the dissolution of Lok Sabha.
 Fourth Case:
 Bill introduced in Rajya Sabha, passed by Rajya Sabha, pending
approval of Lok Sabha, will lapse on the dissolution of Lok Sabha.
 Fifth Case:
 Bill passed by both the houses, pending approval of president will not
lapse on the dissolution of Lok Sabha.

Money Bill: (11:03 AM)

Financial Financial
Money Bill
Bill Type I Bill Type II
If a bill relates If a bill If a bill
to only those contains while
matters under introducing
matters Article 110 some
mentioned in (1) and provisions also
Article 110 something in involves
(1) from (a) addition (not expenditure
to (g). mentioned in from the
110 (1). Consolidated
E.g. abolition, Fund of India.
imposition of
the tax, etc.

Example:
Example:
For example, A bill creating
A bill a body but
A bill imposing tax also involving
imposing the and also expenditure
tax. creating a from CFI to
body to help manage
manage the body.
money raised
from tax.

An initial An initial
recommendatio recommendatio
n of the An initial n of the
president is recommendatio president is
required? n of the required?
Yes. president is Yes.
required?
Yes.

Rajya Sabha Rajya Sabha

has no power may reject
to reject Rajya Sabha the
money may reject bill.
bills. the
bill.

Budget: (11:32 AM)

 The Constitution of India does not mention the word budget.

 The Constitution of India uses the term Annual Financial Statement:
 Estimates expenditure and revenue for the coming Financial Year. (e.g. on
1st Feb, 2022: 2022-2023).
 And actual expenditure and revenue of the previous year (e.g. 2021-22)
 Expenditure in Annual Financial Statment:
 Charge expenditure on CFI: On which no voting takes place in the
parliament (this expenditure is considered as already made).
 Non-charged expenditure: Voting and discussion both take place.
Preparation of Budget: (11:50 AM)

 Department of Economic Affairs, Ministry of Finance.

 It begins somewhere around the month of October.
 They would send requests to all the departments and ministries of the
Government of India to share with them their annual work plan and
budget and share their demand for grants.
 State Plans and various plans of ministries are shared with the Ministry of
Finance.
 Expenditure statement and Revenue statements are prepared: Budget is
presented on 1st February.
 Finance Minister makes a statement in the Lok Sabha related to
important proposals in the budget and lays down the AFS.
 After the introduction of AFS, in both the houses, a general discussion
takes place in the parliament.

Vote on Account: (12:12 PM)

 A vote is taken by the government from the Lok Sabha to spend money for
the coming financial year till the time the budget is passed by the
parliament.
 Both the houses of parliament are adjourned for about 2 months.

Departmentally Related Standing Committees (DRSCs): (12:14 PM)

 These committees have 31 members each.

 Constituted for various domains like defense, health, etc.
 They present their report and are consulted at regular intervals on the
matters of budgeting, allocation, etc.

The topic for the next class: DRSCs, Budget, continued.

Class32

Recess of Parliament: (9:14 AM)

 After the Parliament goes into recess, the Department Related Standing
Committees examine various demands of grants and submit their
recommendations as a report.
 Then the Parliament would resume again.
 The parliament would start discussing various grants along with DRSC
recommendations.
  The discussion will happen in both Lok Sabha and Rajya Sabha.
 Members can also introduce cut motions on Demand for Grants.
 Cut motions are introduced to reduce the Demand for Grants by various
ministries.
 Cut Motions:
 Devices used by Members of Parliament to introduce cuts on Demand of
Grants by ministries/departments of the Government of India.

Policy Cut Motion: (9:26 AM)

 Results in complete disapproval of policy.

 The Demand for Grants is reduced to Re 1.
 It reflects disapproval of a policy of the government.
 If the policy cut motion is approved by the Parliament, then the Demand for
Grant will be reduced to Re 1.
 It can become a reason for the resignation of the government.

Token Cut Motion: (9:29 AM)

 A method through which the Demand for Grants is reduced by Rs. 100.
 The objective is to show token disapproval of the policy.

Economic Cut Motion: (9:37 AM)

 A proposal or a motion is made for the reduction in the Demand for

Grants by Rs. X.
 Rs. X can be any amount, e.g. on the recommendation of DRSCs, etc.
 After this stage is over, the Appropriation Bill is introduced in Lok
Sabha.

Appropriation Bill:

 The purpose of the Appropriation Bill is the withdrawal of money from the
Consolidated Fund of India.
 Various approved Demands for Grants are collated and voted upon in the
form of an Appropriation Bill.
 Once the Appropriation Bill is passed, now Finance Bill is introduced in
Lok Sabha.

Introduction of Finance Bill: (9:44 AM)

 For regulation of taxes. (Article 110).

  Then succeeded by the passing of the Finance Bill in Lok Sabha,
followed by Rajya Sabha.
 After this is completed, the budgeting process is considered as passed by
the Parliament.

Why Parliament does not scrutinize the Demand for Grants directly?
(9:47 AM)

 1. Parliament has limited time for functioning.

 2. Parliament is too big a group for any proper discussion.
 3. Parliament consists of laymen who lack specific technical knowledge
with respect to the functioning of different departments.

Various Grants are given to the Executive by the Parliament: (9:59 AM)

 After the passing of the budget to meet unforeseen expenses.

 Supplementary Grant:
 When the funds allocated under the budget are found to be insufficient to
meet the purpose or the objective during the current financial year, the
Parliament may provide, the executive with supplementary grants.
 Additional Grant:
 It is granted when a need has arisen during the current financial year for
additional expenditure upon some new service not contemplated in the
budget for that year.
 Excess Grant:
 It is granted when money has been spent on any service during the
financial year in excess of the amount granted for that service in the
budget for that year.
 It is voted by the Lok Sabha after the end of the financial year and before
the demand for excess grants is submitted to the Lok Sabha for voting, it
must be approved by the Public Accounts Committee (PAC) of the
Parliament.
 Exceptional Grant:
 It is approved by the Lok Sabha to make an exception for a service that is
not a part of any current service of any financial year.

Vote of Credit: (10:18 AM)

 It is granted for meeting an unexpected demand on the resources of

India when on account of magnitude or the indefinite character of
service, a demand has arisen that cannot be stated with the details
ordinarily given in an annual financial statement.
  It is like a blank cheque given by the Parliament to the executive.

Committees of Parliament (10:26 AM)

Ad Hoc Committees:

 Created for a specific purpose.

 E.g. Select Committees of the house for examining a bill.
 Ad Hoc committees also include Joint Committees.

Standing Committees:

 Permanent in nature.
 For E.g. Department Related Standing Committees (DRSCs).
 Estimates Committee and Public Account Committee.
 Public Account Committee consists of 22 members (15 are from Lok
Sabha, 7 members from Rajya Sabha).
 Estimates Committee has 30 members (all from Lok Sabha).
 No minister can be a member of PAC or Estimates Committee.
 The Chairman of the Public Accounts Committee is from the
Opposition.

Parliamentary Privileges and Immunities: (11:02 AM)

 Parliamentary privileges and immunities are certain exceptions provided in

the favor of parliament and parliamentarians so as to allow them to function
in an impartial manner.
 These privileges have been mentioned in Article 105 wrt to the
Parliament but no law of the parliament has specifically defined these
privileges till now.

Collective privileges enjoyed by the Parliament: (11:09 AM)

 Rights to publish the proceedings of the parliament and to prevent

someone from doing so.
 Right to exclude strangers from the proceedings of the parliament.
 No MP can be allowed to be a witness during a session of parliament,
without the approval of the House.
 Article 122. Courts not to inquire into proceedings of Parliament.
 Non-interference of courts in the proceedings of the Parliament.
 Parliament has the privilege to punish a person for contempt of the
Parliament or for the breach of the privilege of the Parliament.
  No arrest can be made during the session of Parliament.

Individual privileges of the Parliamentarians: (11:20 AM)

 They cannot be held legally liable for anything said or done in the
Parliament in the performance of duties as a parliamentarian.
 All of this is to be within the boundaries of parliamentary conduct.
 Article 121. Restriction on discussion in Parliament. (Conduct of judges
(HC/SC) cannot be discussed unless a motion for their removal is under
consideration)
 Taking bribes to vote or ask questions in the parliament is an act
performed by an MP in his personal capacity.
 No arrest can be made +/- 40 days in a civil case, within the session of
parliament.
 Attorney General has the right to take part in proceedings of the
Parliament and enjoys these privileges.
 All the ministers who are not members of Parliament yet, also enjoy
these privileges.

Reasons for the non-codification of Privileges of Parliament (11:39 AM)

 1. It may put freedom of speech and expression and the fundamental

rights of the citizens in conflict with the privileges, therefore resulting in
courts restricting the privileges.
 2. The vagueness in defining the privileges is in the favour of the
parliament as they can apply them in an arbitrary manner.
 3. Specifically defining the privileges may hamper the powers of the
presiding officers in ensuring proper conduct in the house.
 4. There have been very few instances of misuse of privileges of the
Parliament and therefore there is no pressing need to codify them.

Impact of non-codification of Privileges: (11:53 AM)

 Misuse of these privileges to curb criticism of the Parliament.

 It affects the freedom of speech and expression under Article 19 (1) (a).
 There have been several instances of misuse in the past, leading to
creating a nevagtive image of Parliament in the eyes of the citizens.

State Legislatures: (11:57 AM)

 Composition of State Legislatures:

 Governor, State Legislative Assembly, State Legislative Council.
  States that have State Legislative Council: Bihar, UP, Maharashtra,
Telangana, Andhra Pradesh, Karnataka.

The basis for the abolition and creation of Legislative Councils: (12:01
PM)

 Article 169 deals with the abolition and creation of Legislative Councils.
 Abolition and creation of Legislative Councils are to be done by
Parliament by law.
 Before the Parliament passes a law, the respective State Legislative
Assembly has to pass a resolution by a special majority.
 The law would not be considered as a Constitutional Amendment Act.

Composition of Legislative Councils (Article 171): 12:12 PM

 Composition of Legislative Council:

 The maximum size is ⅓ the size of the Legislative Assembly.
 The minimum size is 40 members.

Electoral college for Legislative Councils: (12:20 PM)

 Nearly 1/3rd are elected by an electoral college constituting of members of

local bodies in the state.
 Nearly ⅓ elected by members of the Legislative Assembly.
 Nearly 1/6th are nominated by the Governor. (Literature, science, art, co-
operative movement, and social service.)
 The remaining 1/6th can be divided into:
 1/12 are to be elected by an electoral college consisting of graduates
residing in the state.
 1/12 are to be elected by the teacher of secondary school and above
and of 3 years or above.

Topic for the next class: State Legislature, etc.

Class33

Composition of a Legislative Assembly: (9:10 AM)

 The maximum size is 500.

 The minimum size is 60.
 (Certain exceptions like Goa, etc. are there.)
  Elections to the Legislative Assembly happen in a direct manner where
every constituency chooses its representatives.
 Determination of territorial constituencies should be done by Delimitation
Commission in such a manner that the population of each constituency
within a state shall be the same as far as possible.
 Population figures used to draw boundaries of constituencies should be
from the 2001 Census till the first Census after 2026.
 The total number of seats allotted to a State in the Legislative Assembly is
to be determined on the basis of the 1971 Census till the first Census after
2026.
 Seats are reserved for SC/STs in each Legislative Assembly in
proportion to their population.
 As per Schedule VI: Assam has seats reserved for the members of the ST
community, from each autonomous district.
 In the case of Assam, a representative of the ST community from a
reserved seat should compulsorily belong to that district.
 Sikkim has a floating constituency (which has no territorial boundaries).
 Because the Buddhist monasteries are spread in an uneven manner.

Floating Constituency of Sikkim: (9:47 AM)

 Article 371 F has provided the Parliament with powers to ensure the
representation of certain sections in Sikkim’s Legislative Assembly.
 As a result, 15 out of 32 seats are reserved for Nepalese of Sikkim
origin and one seat has been reserved for Buddhist Sangha.
 This constituency of the Buddhist Sangha is a virtual constituency with no
geographical boundaries.
 Only those monks whose name is listed on the record of 111
monasteries registered under the Sangha can either contest or vote
during the elections.

Process of Legislation in States having two chambers: (9:52 AM)

 A bill other than a Money Bill or Financial Bill Type-1 can originate in
either house of the State Legislature.
 If the Legislative Assembly of the state sends the bill to Legislative
Council:
 The LC has the following options:
 To pass the bill.
 To suggest amendments.
 To reject the bill. (Bill makes another journey to LA)
 May choose to not act on the bill (maximum period of 3 months)
  Now the LC should pass the bill within one month, else the bill will be
considered as passed.
 In case Bill originates in LC:
 If a bill that originates in Legislative Council is not excepted in the same
manner by the Legislative Assembly, the bill comes to an end.
 LCs act as delaying chambers with limited powers.
 There is no concept of Joint Sitting in the case of States.

Difference between Powers of Council of States and Legislative Council:

(10:12 AM):

 No concept of Joint Sitting.

 The amendment suggested by the legislative council may or may not be
accepted by LA.
 Bill originating in LC if rejected by the LA comes to an end instantly.
 LC is merely a delaying chamber.
 In the case of money bills, the powers of LCs are the same as that of
Rajya Sabha (14 days delay).

Arguments in favor of retaining the Legislative Councils: (10:16 AM)

 It prevents majoritarianism.
 Essentially, it ensures that the same party does not necessarily
dominate the legislative assembly and LCs.
 It prevents hasty and populist legislation.
 It provides representation to grassroot-level bodies and multilevel
federalism.
 It provides representation to diverse sections of society including
teachers.
 It ensures the presence of technical expertise through the nomination
route.

Arguments against the Legislative Council: (10:22 AM)

 A superfluous body.
 It is best a delaying chamber.
 Often politicians rejected by the electorate are provided representation in
LCs.
 It is an expensive affair to maintain a legislative council.
 Representation of political parties in graduate and teacher
constituencies defeats the entire purpose of these constituencies.
  Several states including Tamil Nadu, Rajasthan, etc. have already
abolished LCs.

Center-State Relations: (10:35 AM)

 Legislative Relations: (Article 245 and 254):

 The distribution of legislative powers between the Center and States is
determined as per the following provisions:
 Article 245: (Extent of laws made by Parliament and by the
Legislatures of States.)
 Tells us about the territorial division of power between the Union and
States.
 Parliament can make laws for the entire territory of India, and may have
extra-territorial applications as well.
 Laws made by State Legislature will only be applicable throughout the
territory of the State (No extra-territorial application).
 The extent of laws made by Parliament:
 Indian citizens committing an offense as per Indian laws in other
countries may be tried as per Indian laws upon entry into India.
 Crime committed in cyberspace against an Indian from outside Indian
territory.

Doctrine of Territorial Nexus: (10:51 AM)

 The state legislature in general has no authority to create laws for extra-
territorial operations.
 This limitation is subject to an exception called the ‘doctrine of territorial
nexus’:
 Two conditions must be satisfied for the doctrine:
 Such an entity must have extra-territorial operations in the state.
 The entity and the territory of the state must have a valid nexus.
 Cases related to territorial nexus:
 TISCO vs. State of Bihar, Charusila Devi vs. State of Bihar, RMDC vs. the
State of Bombay.
 Article 246 (1) would prevail over clauses (2) and (3).
 Notwithstanding anything Clause (3), this means 246 (2) is above (3).
 Powers of State under Article 246(2) will be subject to Powers of Union
under Article 246 (1).
 Article 246(3) states that subject to clauses (1) and (2).
 A Union law on the union subject would prevail over a State Law on the
State subject.
  Union Law on Union-Subject > State law on State-subject or
Concurrent-subject.
 Union Law on Concurrent List-Subject > State law on State List-
Subject.
 This principle is called as Principle of Federal Supremacy.

Doctrine of Pith and Substance: (11:34 AM)

 Pith is True nature.

 The substance is Actual material.
 If a law is having an incidental encroachment.
 The doctrine of Pith and Substance has been provided by the courts to
resolve the conflicts that may arise between Union and State due to
conflicting interpretations of entries provided in various lists under
Schedule Seven.
 Situations in which the doctrine is applied:
 It is applied in the circumstances where List 1 is in conflict with List 2.
 The reason behind adopting: The powers of the would-be limited if
every law is declared void for encroachments.
 True nature and character: The doctrine ascertains the true nature of
law.
 Provision for a degree of flexibility.
 The first judgment that upheld the doctrine: State of Bombay vs. FN
Balsara.
 Widest interpretation should be provided to entries under the lists in
Schedule Seven.

Doctrine of Colourable Legislation: (11:50 AM)

 What cannot be done directly should not be done indirectly.

 When a legislature does not have the right to make law on a subject but
makes it indirectly.
 Court has laid down certain tests for discovering whether any particular Act
constitutes colorable legislation.
 Cases related to Colourable Legislation:
 State of Tamil Nadu vs M Ragappa.
 KC Gajapati vs. State of Orissa.

Doctrine of Harmonious Construction: (12:01 PM)

 This rule is used to avoid any inconsistency within a section or between a

section and other parts of a statute.
  The rule follows a very simple premise that every statute has a purpose
and intent as per law, and should be read as a whole.
 The interpretation which is consistent with all the provisions and makes the
enactment consistent shall prevail.
 The doctrine follows a settled rule that an interpretation that results in
injustice, hardship, inconvenience, and anomaly should be avoided.
 In order to allow two laws that are conflicting with each other to exist
simultaneously, the court has propounded the Doctrine of Harmonious
Construction.
 As per this doctrine, the court will give such an interpretation to the
state/union law to that it is consistent with the provisions of Union law or
state law as the case may be.
 In such as scenario, the court would give the widest possible interpretation
and allow both the laws to coexist unless conflicting provisions are so
repugnant that no conciliation is possible between the laws.

Doctrine of Repugnancy: (12:10 PM)

 Article 254: Inconsistency between laws made by Parliament and laws

made by the Legislatures of States.
 In case both Parliament and State Legislature have enacted a law on
Concurrent List subject that may be in conflict with each other, then
Union law shall prevail over the State Law irrespective of whether the
Union law was enacted before or after the enactment of State Law.
 Exception: Article 254 (2) If State law has been sent to President and
has received his assent, then State Law will prevail.
 However, Union can overrule this by again passing the law.

Topic for the next class: Administrative and Financial relations between
Center and States.

Class34

Powers of the Union to legislate on State Subjects: (9:18 AM)

 Article 249:
 If the Council of States passes a resolution by 2/3rd of members present
and voting that it is necessary for the national interest for the parliament to
legislate on a state subject then the parliament becomes competent to do
so as long as the resolution remains in effect.
 Duration of resolution: 1 year.
  Duration of law: Up to 6 months after the resolution ceases to exist.
 Article 250:
 During the proclamation of emergency under Article 352, parliament can
enact a law on any state subject.
 Duration of law: Law would cease to have effect 6 months after the
proclamation of emergency ceases to exist.
 Article 252:
 Power of Parliament to legislate for two or more States by consent and
adoption of such legislation by any other State.
 If two or more states pass a resolution that the parliament should enact a
law on a state subject then the parliament can enact a law that would be
applicable to such states and later other states may also pass a resolution
to adopt that law.
 Wildlife Protection Act 1972 was enacted under Article 252.
 Duration of such a law:
 Law would remain in effect forever unless the parliament repeals or
amends it.

Article 253: (9:43 AM)

 Parliament can enact a law for the entire territory of India or a part of a
state subject to keep up India’s commitment made as a part of an
international agreement, treaty, convention, etc.
 Lokpal and Lokayuktas Bill, 2011 was introduced in Parliament under India’s
commitment as a signatory to United Nations Convention against
Corruption.

Administrative Relations: (10:08 AM)

 Article 256:
 States should exercise their executive power in such as manner that it
complies with the union law.
 The union can issue directions to the States on such a matter.
 The idea behind Article 256 is to ensure that the Parliament's powers to
make laws and the Union’s powers to execute the same should not be
interfered with by the States.
 Article 257 (1):
 The executive power of every State shall be so exercised as not to impede
or prejudice the exercise of the executive power of the Union, and the
executive power of the Union shall extend to the giving of such directions
to a State as may appear to the Government of India to be necessary for
that purpose.
  Article 257 (1) is based on the principle that both the Parliament and the
States are competent to exercise executive powers in their own domain.
 In case the states impede the exercise of the executive power of the
union, the union may issue directions to the states for this purpose.
 Under Article 257 (2) the Union may directions to the states for the
construction and maintenance of means of communication declared to be
of national or military importance.
 Similarly, under Article 257 (3) the Union can issue directions to the
state to take measures for the protection of railways within the state.

Principles of cooperative federalism: (10:31 AM)

 Cooperative federalism is an idea that both the center and the states
should work together in the larger public interest.
 It is possible that while the states and the union exercise their executive
and legislative powers, certain conflicts may arise, and the principle of
cooperative federalism casts a responsibility on both to cooperate with each
other for the betterment of society.
 For example, if the central government wants to ensure that the national
highways are maintained properly, it can offer grants to the states for that
purpose.
 Article 258:
 President may entrust Union’s executive powers to the state, either
conditionally or unconditionally with the consent of state governments.
 Article 258 (2):
 Parliament may also through the law, entrust executive functions to the
states with respect to that law, even though that law may not be on a
subject that the state legislature is competent to enact.
 Article 258 A: Governor of the State may be the consent of the
President of India, either conditionally or unconditionally vest the
executive powers to the union.

Article 262: (10:49 AM)

 Under Article 262 of the constitution, Parliament by law can provide for an
adjudication mechanism for resolving disputes or complaints wrt the use,
distribution, or control of inter-state rivers.
 Further, the parliament may also exclude the Supreme Court or any
other courts to exercise jurisdiction w.r.t. such matters.
  Accordingly, the Parliament enacted the Inter-State River Water Disputes
Act, 1956 as per which, tribunals can be created or set up to resolve
disputes related to inter-state rivers.
 Multiple inter-state water tribunals have been created under this law
such as Mahanadi Tribunal, Kaveri Disputes Tribunal, Godavari
Disputes Tribunal, etc.
 But they have been unsuccessful in resolving these issues amicably.
 Some of the problems in the functioning of inter-state river tribunals are as
follows:
 Structural issue:
 These tribunals only consist of judges who do not have any technical
expertise on such matters.
 Procedural issues:
 States are reluctant to share data with the tribunals, in the absence of
which, the tribunals cannot make a conclusive award.
 Courts have overstepped the law of the Parliament and entertained
appeals against the award of the tribunals, defeating the entire purpose of
this law.
 Delays:
 The tribunals have shown excessive delay, at times, 10-15 years in
giving the final award.
 Several times states have refused to comply with the final award of the
tribunal due to political considerations.

Article 263: (11:30 AM)

 Article 263 provides powers to the president to set up a council for the
resolution of disputes between the states and to advise upon resolving the
common issues concerning the states and center.
 The first Center-State Relations Commission, i.e. Sarkaria Commission
recommended the constitution of a permanent State council charged with
the duties as mentioned in Article 263 (a) to clause (c).
 The president of India in 1990, issued an order, for the creation of an Inter-
State Council consisting of the Prime Minister as the Chairperson, six
Union Cabinet ministers, Chief Ministers of States, and the administrators
of the UTs not having an assembly.
 Despite the best efforts, Inter-State Council has not yielded the desired
results due to the following reasons:
 It has become a victim of bitterness between the political parties.
 Its recommendations are not binding in nature.
  The meetings of the Council are not held regularly even though it is
supposed to meet thrice a year.
 The last meeting of the Council happened in 2016, after a gap of 10
years.
 They do not have a permanent secretariat, in the absence of which,
agenda-setting and follow-up action has become a problem.
 The creation of multiple bodies, such as the NITI Aayog Council, and
GST Council, have diluted the functioning of this body.
 As per the Punchhi Commission and 2nd Administrative Reforms
Commission, Inter-State Council should be used to its truest potential to
usher in an era of cooperative federalism in India.

Financial Relations between the Union and the States: (11:52 AM)

 Why the financial powers of the union are more than the states?
 Most of the expenditure-intensive subjects are with the states.
 The number of subjects for taxation is considerably more in the case of the
Union when compared to the states.
 Subjects under the consideration of the Union are more elastic in nature.
Therefore, with the growth of the economy, a natural increase is witnessed
in the Center’s tax collection.
 Union has powers to impose cess and surcharges, that it does not
share with the states.
 States cannot borrow money from outside of India and in case a state
owes a loan repayment to the center, it cannot raise more money without
the permission of the Union.
 States have been reluctant to utilize their taxation powers properly
including agriculture.

Topic for the next class: Statutory grants, discretionary grants, etc.

Class35

Consolidated Fund of India: (8:38 AM):

 It includes all the revenues received by the Government, receipts of

interests and repayment of the loans given by the government,
advances, etc.
 All the expenditures of the GoI are met through the CFI except
unforeseen ones.
 Further, no amount of money can be taken out of CFI without the
authorization of parliament.
Public Account: (8:46 AM)

 Public Account of India or State shall constitute of all the other public
revenue obtained by the government of India or the Government of
State, or in the behave of Government.
 It includes certain kinds of transactions:
 For example:
 Small savings,
 Provident fund, etc.
 There is no requirement of obtaining any authorization from parliament.

Contingency Fund of India: (8:52 AM)

 The executive does not need to seek the permission of the legislature.
 The fund is in form of imprest.
 The fund is at disposal of the President of India.
 A contingency fund exists for disasters, unforeseen expenditures, etc.

Fiscal Transfers from the Union: (9:07 AM)

 Stamp duties are those taxes that are levied by the center, but collected
and appropriated by the states.
 Article 269, all those taxes which are levied and collected by the union
and assigned to states.
 Tax collection on state subjects.
 Article 270:
 The divisible pool of taxes: 42% of this (vertical pool with states)
devolution.
 The money which is coming in the divisible pool of taxes does not go
into the Consolidated Fund of India.
 The rest of 58% will go to the Consolidated Fund of India.
 Loans,
 Sale of Treasury Bills,
 Disinvestment of PSUs.
 Sale of natural resources.
 Statutory Grants: Article 275.

Grant in Aid:

 Grant in Aid is provided on the basis of FC recommendations to those

states which have revenue deficits.
  As per the 15th Finance Commission, 17 states will be given the Grant in
Aid money.
 It is called a statutory grant because it has to be approved by the
parliament.
 For the welfare of STs and scheduled areas, with a special focus on
Assam.
 This money is spent not on the recommendations of the Finance
Commission, but on the Ministry of Tribal Affairs approved by the
Parliament.

Discretionary Grants: (9:33 AM)

 As per Article 282.

 For public purposes.
 Given directly by the ministries to the states as part of Centrally
Sponsored Schemes.
 Money collected under CGST also forms part of this pool.
 Discretionary grants are conditional in nature.
 Concerns with the Discretionary Grants and Centrally Sponsored
Schemes:
 According to the Budget 2021-22, 23% of total fiscal transfers to states are
through CSS routes.
 It inhibits states from exercising policy priorities.
 Discretionary and non-transparent in terms of how they have formulated the
grant distribution.
 The purpose of Article 275 is defeated.
 Now CSS has been reduced under:
 The core of Core Schemes.
 Core Schemes
 And Optional Schemes.

Issues associated with discretionary grants: (10:00 AM)

 Corruption,
 Weak monitoring,
 Delay in transfers.

Grants to local bodies: (10:08 AM)

 Under Article 275, the Center is directly making grants to Local Bodies,
after the recommendation of the 13th Finance Commission.
 14th FC recommended fixed grants to local bodies.
  GST Council:
 Article 279 empowers the President of India to constitute a Council
named GST Council.
 Objective: It shall seek to ensure a uniform system of GST to avoid any
conflict.

Finance Commission: (10:12 AM)

 Need for FC?

 Assigned revenue powers are inadequate to meet the expenditure of
states.
 Mechanism to transfer funds from union to state governments by way of tax
devolution.
 The Chairman of the Finance Commission should have a special
understanding of public affairs.
 Members shall possess the following qualifications:
 Either a judge of a High Court or qualified enough to be appointed so.
 Must have deep knowledge of the finance and accounts of the
Government.
 Must be experienced in the field of financial matters and in
administration, or
 Must have a special understanding of economics.

Significance of Finance Commission:

 Finance Commission has played an imperative role in strengthening

and improving the fiscal federal structure of India.
 Union Government has also been receptive to the recommendations of
FC.
 It has also settled many issues from time to time.
 Criticism of the Finance Commission:
 Ad-hoc body and no concept of institutional memory.
 No mechanism to determine the efforts of states.
 Data quality is a major issue.
 Criteria for vertical distribution have varied.

15th Finance Commission:

 It has been recommended to maintain the vertical devolution at 41%.

 For horizontal devolution, it has suggested 12.5% weightage to
demographic performance, 45% to income, 15% each to population and
area, 10% to forest and ecology, and 2.5% to tax and fiscal efforts.
  The number of states qualifying for the revenue deficit grants decreases
from 17 in 2022 to 6 in 2026.
 Performance-based grants for incubation of new cities and health grants to
local governments.
 For Million-Plus cities, 100% of the grants are performance-linked
through the Million Plus Cities Challenge Fund (MCF).
 The 15th FC has also accepted the Center’s suggestion to set up a non-
lapsable fund for defense modernization.

Borrowing powers of Central Government: (10:31 AM)

 Central Government has almost unlimited powers in terms of borrowing.

 The law imposes no limits on the Center in relation to both national and
international borrowing.

Judiciary in India: (10:55 AM)

 Supreme Court,
 25 High Courts, and
 Subordinate Courts:
 Civil courts: District Court
 Criminal: Sessions Court
 For the Indian judiciary, the base has several lakhs of courts in form of
subordinate courts, and like a pyramid, at the top, there exists one
supreme court.
 Indian judiciary is an integrated judiciary (which means SC judgment will be
binding on all HCs and subordinate courts).

Meaning of independent judiciary: (11:03 AM)

 Not restrained.
 No interference.
 Judiciary should be able to function without fear and favor.

How independence of the judiciary is ensured? (11:06 AM)

 Appointments are made in consultation with the judiciary.

 Article 124 (4) removal can only happen by the special majority in both the
houses.
 Article 125 (2): Salaries and allowances can not be decreased to the
disadvantage.
 Article 146 (3): Salaries and allowances are charged on CFI.
  Article 121 and 211: No discussion on the conduct of Judges of the
SC/HC in any house of parliament, except during the impeachment
proceedings.
 SC can make its own rules for the conduct of its business.
 Ban on practice after retirement.
 Power to punish for its contempt.
 Freedom to appoint its staff.

Difference between the question of law and question of fact: (11:25 AM)

 In jurisprudence, a question of law is a question that must be answered by

applying relevant legal principles.
 Question of fact: must be answered by reference to facts and evidence,
and inferences arising from those facts.
 Article 129:
 Article 129 says that Supreme Court is a court of record.
 A court of record is a court whose judgments are binding on the lower
courts.
 In India, both the Supreme Court and the High Courts are designated as
courts of record.
 The other meaning of the term ‘court of records’ is that the judicial
pronouncements and rulings would have an effect of law.
 Also under Articles 129 and 215, both the Supreme Court and the High
Courts have powers to punish for contempt of the court.
 The details of the exercise of contempt powers have been provided in the
Contempt of Courts Act, 1971, which is a parliamentary law.

The seat of Supreme Court:

 Article 130 states that the Supreme Court shall sit in Delhi, but it may have
other seats as well if the Chief Justice of India desires so with the approval
of the President of India.

National Court of Appeals: (11:41 AM)

 The national court of appeals is a concept according to which the

Supreme Court should have multiple seats across the country to hear
appeals against the decisions of lower courts.
 And the constitutional seat should operate out of Delhi to decide
important constitutional cases.
 Critical analysis of the National court of appeals:
  The present arrangement of having a single seat for the Supreme Court
has created several problems:
 Issue of accessibility to people living in far-flung areas.
 Due to the above, the Supreme Court is not able to perform its most
important function, i.e. protection of Fundamental Rights.
 Therefore several scholars and experts have suggested the idea of
creating a national court of appeals.
 Concerns associated with the National Court of Appeals:
 It would be a costly affair.
 It may create problems with respect to the quality of judgments as there
would be no uniformity between the multiple seats of the Supreme Court.
 Article 124 (2): Every judge of SC shall be appointed by the President by
warrant under his hand and seal and shall hold office until he attains the
age of sixty-five years.
 Appointment of judges is to be done by the President in consultation
with CJI and other senior-most judges of the SC.
 CJI is appointed by the President after consultation with such judges of the
Supreme Court and high courts as he deems necessary.
 (99th CAA and NJAC Act 2014 introduced Article 124A and made changes
to Article 124 (2) but it was struck by the SC as being violative of the basic
structure of the separation of powers and the independence of the
Judiciary.
 Qualification of Judges of SC:
 Should be a citizen of India.
 Should have been a judge of HC (or high courts in succession) for five
years.
 He should have been an advocate of a High Court for ten years.
 He should be a distinguished jurist in the opinion of the president.
 The Constitution has not prescribed any minimum age to become a
judge of SC.

Tenure of SC Judges: (12:05 PM)

 Holds office till the age of 65 years.

 Resign his office by writing to the President.
 He can be removed from his office by the President on the
recommendation of the Parliament.

Removal of judges of Supreme Court: (12:08 PM)

 Removed by an order of the President.

  President can issue the removal order only after an address by
Parliament has been presented to him in the same session for such
removal.
 Address must be supported by a special majority of each house of
Parliament, a majority of the total membership of that House, and a
majority of not less than ⅔ of other houses present and voting.
 Grounds: proven misbehavior or incapacity (but the constitution does not
provide any definition of the same, it may include those actions which
are unbecoming of a judge.)
 Judges Inquiry Act (details of removal):
 Motion for impeachment addressed to the President is to be signed by
100 members of Lok Sabha or 50 members of Rajya Sabha and then
delivered to the Speaker/Chairman.
 The motion is to be investigated by a committee of 3 judges and a
distinguished jurist.
 If the Committee finds the judge guilty,
 The judge is then removed by the requisite majority.

Salaries and Allowances: (12:22 AM)

 The salaries, allowances, and privileges of judges of the Supreme Court are
determined from time to time by the Parliament.
 They cannot be varied to their disadvantage after their appointment
except during a financial emergency.

The topic for the next class: Supreme Court, High Courts, tribunals,
alternate dispute resolution, etc.

Class36

Appointment of the Judges to the higher judiciary: (9:11 AM)

 SP Gupta vs. Union of India (first judges case):

 Elaborated on the meaning of ‘consultation’ mentioned in Article 124.
 Here consultation means mere consultation and in case of difference of
opinion, the view of the President shall prevail over that of CJI.
 The executive shall enjoy primacy in the appointments to the higher
judiciary.
 SC Advocates on Record vs. Union of India: 1992:
 Supreme Court overturned the previous judgment and stated that the
judiciary shall enjoy primacy over the executive in judicial appointments.
  And ‘consultation’ means ‘concurrence’.
 Third Judges Case of 1998:
 Invented the concept of ‘collegium’.
 CJI’s opinion is not his sole opinion but rather formed on the basis of
consultation with four seniormost judges of the Supreme Court of India.
 Judiciary shall continue to enjoy primacy in appointments.
 Opinion of collegium should be informed in writing to the President of
India.

Appointment of the judges of the High Court: (9:30 AM)

 President shall consult the CJI, CJ of High Court, and Governor of the
State for the appointment of High Court judges.
 The process shall begin at the High Court where the CJ shall form an
opinion upon consultation with 2 seniormost judges of HC and the same be
conveyed to the governor.
 CJI may also consult such judges of the Supreme Court who may be
convergent with the functioning of that High Court.
 The opinion of the Chief Justice is conveyed to the President of India
after which the IB conducts its inquiry and passes the report to the
President.
 At this stage, it is possible that the president may recommend the CJI to
drop the name of particular judges, but the CJI is not bound by the opinion
of the president and may overrule the same.
 The opinion of the CJI here means the opinion of the Collegium.

Transfer of judges of High Court: (9:47 AM)

 CJI in consultation with 4 seniormost judges of SC and the collegium shall

also seek the opinion of the Chief Justice of both the High Courts and any
other judges of SCs who may be conversant with the functioning of the
concerned High Court.
 The opinion of the transferred judge is immaterial.
 All transfers should be made only in the public interest.

Issues with collegium system: (9:58 AM)

 It is seen as a closed-door affair.

 Lacking transparency, and therefore, the appointment process is prone to
biases and nepotism.
  The collegium is criticized for showing excessive delays in suggesting
names to the executives resulting in all-time high vacancies in the
judiciary.
 It has been alleged that the collegium system tends to overlook talented
junior judges and advocates.
 The proceedings of the collegium are often stalled especially due to
rivalries between the members.

National Judicial Appointments Commission, NJAC:

 The 99th Constitutional Amendment Act and the NJAC Act 2014, proposed
the formation of a judicial appointment commission for making appointments
to the higher judiciary.
 It was supposed to be a multi-membered body consisting of the judges of
the Supreme Court, the Union Law minister, and 2 eminent persons.
 The SC struck down these changes on the grounds that it violates the
basic structure of the Constitution as it compromises the principle of
separation of powers and independence of the judiciary.
 Way forward:
 In the UK, eligible people can submit applications for appointment as
judges.
 The same system can be followed in India where a full and complete
disclosure must be made of the relationship of the applicants to the
sitting and the retired judges and the detailed background of the
applicant.
 The collegium must convey to the public, whether the appointment is
based on seniority or merit.
 The composition of the collegium must be diversified and ensure the
presence of members from different sections including minorities, tribal
communities, women, etc.
 A permanent secretariat should be created to document the affairs of the
collegium so that the same can be put out in the public domain.

Additional judges to be appointed to HC: (10:35 AM)

 In case there is a temporary increase in the business of the high court.

 There are arrears of work in the high court.

The territorial jurisdiction of the Supreme Court: (10:41 AM)

 The entire territory of India.

 Subject matter:
  Original jurisdiction of Supreme Court:
 Original and exclusive:
 Federal disputes: any disputes between State vs. Union or State vs.
State.
 Original and non-exclusive:
 For example Fundamental Rights.
 Appellate Jurisdiction of Supreme Court:
 Constitutional:
 Civil Matters: High Court must certify that the case involves a
substantial question of law of constitutional importance.
 Criminal Matters:
 Special Leave Powers of the Supreme Court: Article 136.
 Review Jurisdiction of Supreme Court:
 Review Petition: SC can review its own decisions.
 Curative Petition: Rupa Ashok Hurra vs. Ashok Hurra case, an
innovation of the SC. It can review its review judgments.
 In a 1975 ruling, Justice Krishna Iyer said a review can be accepted
‘only when glaring omission or patent mistake or like grave error has
crept in early judicial fallibility.”.

Article 142:

 Enforcement of decrees and orders of Supreme Court and orders as to

discovery:
 SC can pass a decree or order to ensure ‘complete justice’.
 Extraordinary powers to carry out justice.
 Advisory Jurisdiction:
 Article 143 (2): SC has to provide advice (mandatory), pre-Constitutional
treaty/agreement, etc. between two states.
 Optional advisory jurisdiction:
 Article 143 (1): On the question of law or fact with public importance, not
binding.

Original Jurisdiction of High Courts: (11:27 AM)

 As defined under a specific law of the legislature.

 Writs power for the enforcement of Fundamental and other rights.
 High Court may withdraw a case from the lower court if there is a
substantial question of law w.r.t. Interpretation of Constitution.

Appellate powers of High Courts: (11:33 AM)

  In Civil Cases, values of more than 5 lacs can be heard.
 Appeals can be made against the decision of the district court.
 In criminal cases, appeals can be made against the decision of sessions
courts where capital punishment has been awarded.

Appointment of judges to the subordinate judiciary: (11:44 AM)

 District judges:
 Other judges:
 Article 233 states that Governor appoints the District Judge, in
consultation with the High Court.

Court of Record: (11:50 AM)

 Article 129: SC should be the court of record.

 The judgments, proceedings, and acts of the Supreme Court shall be the
records.
 Judgments are recognized as legal precedents and legal references.

Issues associated with the Indian judiciary: (11:55 AM)

 Opacity over appointments and transfers within the higher judiciary.

 Post-retirement appointments of judges compromised the independence of
the judiciary.
 A large number of vacancies in the High Courts and lower courts,
leading to huge pendency of cases.
 Supreme Court in recent times has invoked ‘Sealed Envelope’
jurisdiction, to receive information about the cases, this has
compromised the transparent nature of the Judicial system.
 The former CJI was criticized by the judges of the Supreme Court for
arbitrarily allocating cases to the judges as the CJI is the master of the
Roster.
 Questions have also been raised over misadventure shown by the
judiciary by interfering in the domain of the executive and the
legislature.

The topic for the next class: Judicial Activism, overreach, etc. Class37

Judicial Activism: (9:13 AM)

  Constitution makers gave the judiciary the role of interpreting laws and the
constitution and deciding disputes of different nature.
 But since the late 1970s, courts have started to play an assertive role to
force the other organs to discharge their constitutional functions effectively.
 For example, the PIL regime introduced by the courts has helped in
furthering the objectives of constitutional provisions.
 Judicial Activism reflects the positive role played by the judiciary owing to
the factors such as the near collapse of the responsible government, a
legislative vacuum, due to the inaction of the legislature, and challenges
created due to non-enforcement of the fundamental rights.

Positive effects of Judicial Activism:

 Judiciary, by incorporating the concept of due process of law, has

strengthened Fundamental Rights.
 The courts have brought a series of issues such as the President’s Rule,
ordinance-making powers, and Anti-defection provisions, under judicial
review.
 This has helped in safeguarding the provisions of federalism and
protecting the sanctity of basic principles of the constitution.
 Environmental protection:
 Judiciary has played an important role in environmental protection by
using the tool of Judicial Activism.
 For example, giving strict instructions to state governments to
implement the provisions for cleaning of River Ganga.
 Ban and sale and plying of old diesel cars in Delhi.
 Prohibition on the sale of crackers during festivals.
 Law and order:
 Through its judgments, in cases such as Vishahkah vs. the State of
Rajasthan, Lily Thomas vs. UoI, Khatri vs. the State of Bihar, Arnesh
Kumar vs. the State of Bihar, the court protected
 The judicial intervention has played a crucial role in protecting probity in
governance, CVC Case (Vineet Narayan Case) canceling coal block
allocation.

Judicial Overreach: (9:39 AM)

 When the judiciary takes up the powers of the executive and the
legislature it is referred to as judicial overreach.
  Judicial activism should not be used for interfering in the powers of the
other organs of the state, otherwise, it would translate into judicial
authoritarianism.
 In some of the cases, the judiciary has overstepped its role to the extent of
violating the principles of separation of powers.
 Banning the sale of liquor on highways.
 Exclusion of tourists from the core areas of tiger reserves.
 Banning of the diesel cars in Delhi.
 The monitoring of the investigation agencies, who as per the judiciary have
failed or neglected to investigate cases of corruption against public servants.

Cons of judicial overreach: (9:48 AM)

 Interference in the executive and the legislative domain is a clear

violation of the separation of powers.
 Increase the burden on the judiciary.
 Judicial law-making leads to uncertainty in the laws and creates chaos.
 Judiciary is a non-elected body and it does not enjoy popular support to
make laws.
 Therefore, executive or legislative actions by the judiciary undermine the
mandate of the people.
 Judiciary does not have the technical competence to decide on the
issues such as inter-linking of rivers, banning of diesel vehicles, etc.
which may lead to faulty policies.

Way forward on judicial activism: (9:54 AM)

 Judges should refrain from making individual perceptions and notions of

justice, as they do more harm than good to society.
 Therefore, judges should observe discipline and restraint while
pronouncing judgments.
 Courts can consider setting up division benches for inspecting the
validity of PILs and special leave petitions.
 There is a need to bring in urgent reforms in the appointment of the
judiciary to give a role to the executive as well in the process.
 Stricter accountability standards should be enforced by bringing in laws
such as Judicial Standards Accountability Bill, 2010.

Tribunals: (10:02 AM)

  Tribunals are those bodies that perform functions similar to courts but are
not courts themselves.
 Tribunals can be referred to as quasi-judicial bodies.

Objectives of tribunals: (10:05 AM)

 To provide speedy justice to the people.

 They do not necessarily follow strict principles of evidence and other
procedural laws.
 They usually rely on principles of natural justice.
 The tribunals make justice affordable and accessible to the people.
 A person may represent himself/herself in the tribunals.
 They provide justice on those matters that may be beyond the
competence of the courts.
 By providing an alternate remedy, they can reduce the burden on the
courts in the country.

When and how? (10:13 AM)

 By the 42nd Constitutional Amendment Act, Article 323 A and Article

323 B were added.
 Parliament by law may set up tribunals to decide disputes related to
service matters.
 These tribunals will decide matters related to Central Government
officers (CAT: Central Administrative Tribunal) as well as State
government officers (SAT: State Administrative Tribunals).
 Administrative Tribunals Act, 1985: These deal with the composition,
functions, and process of tribunals.
 Article 323 A (2) (d) excluded the jurisdiction of all the courts including the
HCs except Article 136 on all the matters mentioned in parliamentary law.
 In the L Chandrakumar vs. UoI case, the court held the provision
unconstitutional since it took away the powers of judicial review from the
High Courts (which is part of the basic structure of the Constitution).
 The present situation is that a decision of a Tribunal can be challenged in
front of an Appellate tribunal, and if it involves an important constitutional
matter, it can be further challenged in front of a division bench of the High
Court, and if not, the only remedy is to approach the Supreme Court under
Article 136.
 Article 323 B:
  For all the other matters such as taxation, company law, rent regulation,
foreign exchange, etc. tribunals would be created by the respective
legislature.

Concerns associated with the functioning of the tribunals: (10:38 AM)

 Tribunalisation of justice refers to a large number of alternative fora to

decide cases, which takes away the powers of the courts.
 A large number of tribunals have been created on varying matters,
which has reduced the powers of the courts.
 Tribunals do not rely on uniform procedures, and may therefore lead to
arbitrary and inconsistent decisions.
 Excessive interference in the functioning of the tribunals by the parent
ministry has compromised their independence.
 There is a variance in the appointment process, qualification criteria,
age of retirement, etc. from tribunal to tribunal.
 The inclination of the government to appoint retired bureaucrats has
compromised the independence of tribunals, especially because, the
government is litigant in most of the disputes.
 The original provisions of the tribunals excluded the jurisdiction of the
High Courts, thereby taking away their constitutional powers.
 There is a severe shortage of members in some of the tribunals,
therefore, compromising their efficient functioning.
 There is no time limit for the Center to notify the tribunal awards, and at
times, tribunals themselves have taken a long time to dispose of the
disputes.

Way ahead: (10:48 AM)

 Tribunals must not only be independent but also seem to be

independent.
 Therefore, they should be provided with requisite autonomy and made
independent of the parent ministry.
 In recent times the government has merged various tribunals t avoid
overlapping functions and to rationalize the number of tribunals.
 The Supreme Court has recommended that all the administrative matters
of tribunals should be managed by the Law Ministry rather than the ministry
associated with the subject area.
 It has also recommended the creation of an independent National
Tribunal Commission to ensure uniformity in the functioning of the
tribunals.
  The recently introduced Tribunals Reforms Bill of 2021 has overruled
some of the previous judgments of the courts and has therefore been
challenged in the Supreme Court.

Alternative Dispute Resolution: (11:36 AM)

 ADR is a mechanism for dispute resolution that is non-adversarial, i.e. both

the parties work together in a cooperative manner to reach the best
resolution in the interest of everyone.
 ADR can play a crucial role in reducing the burden of litigation on the
regular courts while providing speedy disposal of cases.

The rationale for ADR Mechanism:

 Speedy resolution of disputes with a focus on the conciliatory move.

 They are cost-effective.
 ADR reduces the burden on public finances, courts, etc.
 ADR helps in an amicable solution for both parties.
 Non-adversarial and confidential, matters can be kept secret/private.

Arbitration: (11:42 AM)

 A process in which disputes are submitted to arbitrators.

 Arbitration and Conciliation Act, 2019 is in place.
 Mediation:
 Involves an unbiased and third-party mediator.
 A mutually agreeable solution is reached by both parties.
 The agreement will not be decided by the mediator, but by both parties.

Shortcomings of ADR Mechanism: (11:52 AM)

 Wastage of time/Money if the Case is not resolved.

 The possibility of bias.
 Compromising confidentiality.
 Limited Judicial review.
 Informal, more opportunities for abuse of power.
 Lack of power to establish legal precedents.
 Unfamiliarity with the procedure of ADR, lack of awareness.

Gram Nyayalayas: (11:55 AM)

 To improve justice in rural areas.

  Presided by Nyayadhikaris.
 Jurisdiction over an area specified by a notification by the State
government.

Family Courts:

 The Family Court Act, 1984 provides for the establishment of Family
Courts by the State Governments, in consultation with HCs.
 Objectives:
 To deal with family matters exclusively.
 To institute a mechanism.
 Objectives of Family Courts:
 To create specialized courts for dealing with family matters.
 To create a mechanism for resolving family disputes.
 To provide an inexpensive remedy.

Lok Adalat: (12:02 PM)

 Lok Adalat is a system of ADR where justice is dispensed without

following the strict procedures of evidence, and CrPC.
 In India, Lok Adalats have been set up under NALSA Act 1987.
 These are usually preceded by retired judges, social activists, and other
members of the legal profession, and deal with cases that include family
disputes, traffic challans, motor accident claims, etc.
 In India, Lok Adalats can broadly be classified into two categories:
 National Lok Adalat:
 Which are held on a regular interval on a single day throughout the
country, where cases are disposed of in huge numbers.
 Permanent Lok Adalat:
 Are set up in Section 22B, of the NALSA Act, 1987, and are given the
responsibility of resolving the disputes related to public utility services
such as water, electricity, etc.
 The decision given by the Lok Adalats is binding on both parties and
one cannot approach the courts in an appeal against the decisions.

The topic for the next class: Local Self-Government, PESA Act, etc.

Class38

Schedule V: (9:15 AM)

 All the states except Assam, Meghalaya, Tripura, and Mizoram.

  Certain areas may be declared as scheduled areas where tribals live in
large numbers.
 The administration is supposed to be conducted as per the provisions of
Schedule V.
 Notification of an area as a scheduled area is supposed to be made by the
President.
 Any state having a scheduled area or otherwise may have a Tribal
Advisory Council to advise the governor on important matters related to the
administration of these areas.

Composition of Tribal Advisory Council: (9:25 AM)

 Maximum membership: 20.

 3/4th will be tribal MLAs from the state.
 The rest of the members will be appointed by the Governor.
 Chief Minister is the chairperson of TAC.
 Special Status:
 A law of parliament or state legislature would apply with such modifications
or may not apply if notified by the governor to Schedule V areas.
 Governor has powers to make regulations for the peace and good
government of these areas.
 These regulations would have an effect on laws, specifically, they can
make regulations on:
 Prohibition on transfer of tribal land.
 Regulation of allocation of land to Scheduled Tribes.
 Regulate the activities of money lending.

Criticism of TAC: (9:44 AM)

 Over and above the power of the president and state legislatures is
there.
 In most states, Tribal Advisory Council has not been constituted or rules
have not been made for their administration.
 As a result, TACs are dysfunctional in most states.
 Governors have not used their powers to make regulations.
 President has shown delay in giving assent to the regulations made by the
governor or worse not assented to them.
 Governor is supposed to provide a report to the President on the
administration of these areas.
 An amendment to Schedule V is not an amendment to the Constitution of
India.
Schedule VI: (10:02 AM)

 Applicable to Assam, Meghalaya, Tripura, and Mizoram: in which

districts/areas it is applicable would be mentioned in Schedule VI itself.
 Special Status: ADCs (Autonomous District Councils) or ARCs
(Autonomous Regional Councils) will be created.

Powers of ADCs and ARCs: (10:17 AM)

 ADCs or ARCs have the power to make laws on a variety of matters.

 Criticism of Schedule VI: Laws would come into effect only upon the
approval of the Governor, in most cases, the governor has either
delayed or not provided assent to such laws.
 Power to set up village councils which would act as courts w.r.t. Certain
disputes between tribals in these areas.
 Establish and manage different institutions for various purposes
including schools.
 Every such district or area would have its own funds.
 ADCs/ARCs have powers to collect land revenue and to impose taxes.
 Royalties from the mining of minerals in these areas would be shared
with District Councils.
 Can make regulations for the activity of moneylending.
 Laws of parliament or state legislature may apply to such areas with
modifications or may not apply.

Composition of ADCs/ARCs: (10:38 AM)

 Elected bodies and voting rights are given to all the adults in these
districts or areas.
 The maximum size of any ADC or ARC would be 30 members. Out of 30,
26 will be elected and 4 will be nominated by the governor.

Issues with ADCs/ARCs:

 In many states, ADCs/ARCs come in conflict with District administration

and state government due to overlapping powers.
 The councils are considered too small in some areas and some of the
minority tribal groups.
 Some tribal groups have no representation in these councils, as the
election happens as per the popular vote.
 A large number of non-tribals also reside in these districts and regions
and feel left out of the functioning of these councils.
Evolution of Panchayati Raj Institutions in India: (11:19 AM)

 Panchayats have been a feature of the Indian governance system for

time immemorial.
 But they always lacked a certain structure to their functioning.
 After independence, a renewed emphasis was given to these
institutions to bring development to the rural areas.
 The Government of India launched the Community Development
Programme (CDP) to address the issues of rural poverty and
development.
 But this program proved to be a major failure largely due to a lack of
involvement of the local population, and the inability of bureaucracy to
establish a connection with the masses.
 As a result, the Government of India established Balwant Rai Mehta
Committee to provide recommendations to overcome the failures of
rural development programs.
 It recommended the scheme of democratic decentralization which
ultimately was termed as Panchayati Raj.

Recommendations of Balwant Rai Mehta Committee: (11:25 AM)

 Establishment of a 3-tier Panchayati Raj System.

 Direct election of representatives.
 Planning and development tasks are to be given to these bodies.
 Devolution of adequate resources and functions to these bodies.
 Subsequently, some of the states passed their Panchayati Raj Acts and
gave legal status to these institutions.
 However, there were wide-ranging differences in such laws, which resulted
in a non-uniform approach to the Panchayati Raj and proved to be a major
reason for its ultimate failure.

Ashok Mehta Committee: (11:29 AM)

 Janta Party Government appointed Ashok Mehta Committee to make

recommendations, to strengthen and revive these institutions.

Important recommendations of Ashok Mehta Committee:

 The 3-tier system should be replaced with a 2-tier system.

 Reservation for SCs/STs.
 Constitutional recognition of these institutions.
 Participation of the political parties
  Zila Parishad should be made the executive body to carry out the
developmental work.

LM Singhvi Committee:

 Constitutional recognition to the PRIs.

 Gram Sabhas should be empowered to act as units of decentralization.
 Village Panchayats should be given more resources.

Introduction of 73rd Constitutional Amendment Act: (11:35 AM)

 After earlier failures to constitutionally recognize these bodies the parliament

passed the 73rd CAA to give constitutional status to the PRIs in India.
 Village Panchayat elections:
 Minimum 21 years of age, a citizen of India, should not be disqualified
under any law made by Parliament/state legislature.
 In some states, additional requirements have been provided.
 Compositions of the Panchayats:
 Chairperson of the panchayats as per laws of the state legislature.
 At the block level, the chairperson is elected by the members amongst
themselves.
 At Zila Parishad and the intermediate level, there can be non-elected
members (to be decided by the state legislature), MPs, MLAs, and MLCs
can be ex-officio members.

Reservations in PRIs: (11:54 AM)

 Reservations: SCs/STs in membership w.r.t their proportion in

population.
 Women have been provided reservations in membership at all levels, a
minimum of 33%.
 OBCs may also be provided reservations as per State law.

Duration of Panchayats: (11:58 AM)

 Normally 5 years, unless dissolved earlier.

 Newly elected panchayat upon dissolution of the previous one would
enjoy a tenure of 5 years if the last panchayat completed a full term or the
remainder was less than 6 months.
 Otherwise, it would have a tenure of the remaining period.
  An election upon the completion of tenure shall happen before the
completion.
 And in case of dissolution should happen within 6 months.

Elections to PRIs: (12:07 AM)

 A specially appointed body called State Election Commission would be

created.
 As per Article 243D, in those states where the population is less than 20
lakhs, intermediate panchayat may not be constituted.
 Gram Sabha is like legislature at the rural level. Article 243 A.
 Gram Sabha: Any adult member on the electoral roll of the village.
 Functions of Gram Sabha: Would be determined by the State
legislature.

Funcitons of Panchayat:

 As per Article 243G.

 Preparation of plans for economic development and social justice.
 The implementation of schemes.
 With respect to these aspects, State Legislatures may dissolve powers to
local governments on subjects mentioned in Schedule XI.
 Revenues of Panchayats:
 The state may by law give taxation and revenue collection powers to the
panchayats.
 May provide grants in aid as well as assign some taxes collected to
them.

The topic for the next class: Issues with PRIs, PESA Act, Comparison of
Constitutions, etc.

Class39

Structure of municipalities: (9:06 AM)

 Large cities: Municipal corporations.

 Smaller cities: Municipal councils.
 Areas in transition: Nagar Panchayat.
 Criteria for such classification:
 Population
 The density of population.
 Revenue generated.
  Percentage of the population involved in agriculture.
 Wards:
 Territorial constituencies, 3 lakhs.
 As per Article 243S, ward committees.
 Plans for the wards.
 Waste management.
 Oversee the spending of funds allocated to the wards.
 Apart from the ward committees, there may be other committees.
 Three functionaries:
 Corporators: Elected ward members. Members with Special knowledge
and experience, MPs, MLAs, etc. chairperson of a corporation is called
mayors.
 Mayors are indirectly elected.
 Municipal Corporation: CEO.
 Standing Committees: Maybe a part of Municipal Corporations.
 Article 243ZC: (Part not to apply to certain areas.), not applicable to Fifth
and Sixth Scheduled areas, and in Darjeeling Gorkha Hill areas.

Significance of 73rd Amendment:

 Build foundation from below.

 Acts as a school of democracy.
 Direct democracy becomes possible at this level.
 More durable and participative in character.
 Positive outcomes of 73rd CAA:
 Created another layer of government.
 Almost 100% success.
 5 lakh local self-governance institutions.
 Women have entered public life in a big way.
 Schemes related to digital financial levels, etc.

Issues with 73rd CAA:

 PRIs are dependent on States for deciding functions and roles.

 No uniformity in the allocation of functions across the states.
 Gram Sabha has not been defined properly.

Problems of financing the local bodies:

 Taxes are inelastic.

 There is also a reluctance on the part of the PRIs to impose taxes.
 PRIs generate only 5% of their finances through their own resources.
  Limited borrowing powers.
 States such as Kerala, Andhra Pradesh, etc. have done well.
 States are not implementing the recommendations of the SFCs.

Impact of 73rd CAA on women: (10:21 AM)

 30 lakh women contested elections.

 Participation of the women in gram sabha has increased.
 Empowerment by asserting control over resources, and officials, and
most of all, by challenging men.
 The concept of ‘panchayat pati’ is on the decline.
 Research using PRIs shows that having female political representation in
local governments makes women more likely to come forward and report
crimes.

Challenges faced by the women:

 Overburdened with family responsibilities.

 They feel inhibited to speak especially when they are in large male-
dominated assemblies.
 Women are only invited to complete a quorum.
 Lack of literacy in women.
 Problems of rotation policy every 5 years.
 Article 243 ZD:
 Committees for District Planning:
 Not less than four-fifths of the total number of members of such Committee
shall be elected by, and from amongst, the elected members of the
Panchayat at the district level and of the Municipalities in the district in
proportion to the ratio between the population of the rural areas and of the
urban areas in the district.

Problems of grassroots planning bodies:(10:41 AM)

 Delay in setting up.

 Don’t exist in states. Only on paper.
 No appointment of experts.
 State-level cabinet ministers are chairpersons in many states.
 No fiscal decentralization makes planning exercises useless in nature.
 Rural and urban linkages are not achieved on this matter.

PESA Act, 1996 (11:03 AM)

  The provisions of the 73rd Constitutional Amendment Act are not
applicable to Scheduled and Tribal areas, and as a result, upon the
recommendation of the Bhuria Committee, Parliament enacted PESA
1996, which extends to Scheduled Areas under Schedule V.
 As per this law, provisions of Part Nine relating to PRIs have been
extended to these areas with certain exceptions and modifications.
 Under Section 4 of this Act, certain modifications have been provided:
 State law with respect to Panchayats shall be made in consonance with the
customary law, and social and religious practices of the community.
 Gram Sabhas have been given special powers and made responsible to
safeguard and preserve the traditions, customs, and cultural identity of the
people.
 Some of the specific functions are as follows:
 Approval of Gram Sabha is mandatory before the implementation of
plans and programs for socio-economic development.
 Gram Sabha shall be consulted before making the acquisition of lands for
development projects.
 Gram Sabha’s recommendations are mandatory before granting a
license or mining lease for minor minerals.
 The state legislature, while giving powers to panchayat shall ensure that
Gram Sabhas are given specific powers w.r.t. the following matters:
 Ownership of minor forest produce.
 Power to prevent alienation of land from the scheduled tribes.
 Power to regulate money lending activities.
 Power to manage village markets.

National Language: (11:26 AM)

 The national language is one that is prevalent throughout the nation in the
social, cultural, and political realms.
 A country may designate a language as a national language, either by law
or otherwise.
 It is a symbol of national identity as is prevalent in many countries of the
world.
 It is a bond of unity throughout the country.
 It facilitates greater cultural interaction between people belonging to
different parts of the country.

Is the national language desirable for India?

 India is a land of diversity with more than 2000 spoken languages.

  Imposing any one particular language on people may have the following
negative consequences:
 It May reduce other languages to the sidelines, and lead to their
extinction, as many of them are already highly vulnerable.
 It May not be good for the unity of the country and promote secessionist
forces.
 Constitutional guarantees given to linguistic minorities may suffer.
 It may hinder the developmental processes, especially in education, as
maximum learning and development of a child happen in the mother
tongue.

Official language: (11:45 AM)

 It is a language that is given special status in a particular country, state, or

other jurisdiction.
 It is usually used for administrative purposes such as in the courts,
parliament, and administration.

Need for an official language:

 It ensures coherence in administration.

 Brings politics and governance closer to the people.
 Ensures efficient administration.
 Promotes national unity.

Adoption of official language in India:

 As per Article 343 (1), the official language of the Union shall be Hindi in the
Devnagiri script, but the numerals to be used would be in international form.
 As per article 343 (2), English was supposed to continue as an official
language of the union, along with Hindi, only for a period of 15 years, but
clause (3) provides powers to the Parliament to extend the usage of
English after the period of 15 years as well.
 In the aftermath of the anti-Hindi protest, the Parliament of India, passed the
Official Languages Act, 1963 to extend the usage of English beyond the said
period.

Important provisions of Oficial Languages Act, 1963:

 English will continue along with Hindi as an official language of the

union.
  Hindi communication between Hindi and non-Hindi states should be
accompanied by an English translation.
 States can continue to communicate with each other in English.
 Every state shall have the freedom to conduct its own affairs in the
language of its choice.
 Article 344 provides for the formation of a commission, after 5 years and 10
years from the date of commencement of the Constitution, 26 January 1950,
that shall consist of members representing different languages, specified in
Schedule Eight.
 Such a commission shall make recommendations for promoting the use of
Hindi, restricting the use of English, and protecting the claims and the
interests of people belonging to the non-Hindi states.
 Article 344 (4) provides for the constitution of a committee of parliament
that shall examine the recommendations of the commission and report their
views on the same to the president.

The official language of the States: (12:03 PM)

 As per Article 345, the state legislature may adopt any one or more
languages in the state or Hindi as an official language.
 Article 347 gives extraordinary powers to the president to direct the state
government to adopt a language spoken by a linguistic minority in the state
as one of the official languages.
 The language to be used in the Supreme Court, High Court, Parliament,
and the legislature of the State shall be English, but the governor, with the
previous consent of the President, may authorize the use of Hindi or other
languages for use in High Court.

Special Directives: (12:06 PM)

 Article 350 prescribes that every person can make a representation in any
language used at the union or the state, as the case may be, to an officer
or authority in the union or state.
 Article 350A casts a responsibility on the states to promote and provide
adequate facilities for education to children in their mother tongue at the
primary stage.
 This provision is applicable to linguistic minority groups.
 Article 350B provides for the appointment of a special officer for
linguistic minorities to recommend safeguarding the interests of
linguistic minorities.

Citizenship: (12:16 PM)

  Article 5: Domiciled in India.
 Article 6: Migrated to India from Pakistan.
 Article 7: People who re-migrated from Pakistan.
 Article 8: Citizenship status of people resident outside India, who was of
Indian origin.
 Article 9: At the time of commencement of the Constitution, people who
have acquired citizenship of other states would lose their citizenship of
India.
 Article 11: Parliament by law shall regulate citizenship matters after the
enactment of the Constitution of India.

Citizenship as per Citizenship Act, 1955:

 By birth.
 By descent.
 By registration.
 By naturalization.
 By acquisition of territory.

Giving up on citizenship:

 Renunciation
 Termination
 Deprivation

The topic for the next class: Citizenship issues, CAG, etc.

class40

Constitutional Bodies (09:18 AM)

 National Commission for Scheduled Castes, Scheduled Tribes, and

Backward Classes:
 NCBC was constituted under Article 338 B recently.
 Functions:
 Monitoring and investigating all issues concerning the safeguards
provided for the SCs, STs, and OBCs respectively under the
constitution.
 Enquiring into complaints relating to the deprivation of the rights and
safeguards of the SCs, STs, and OBCs.
 Taking part in and advising the central or state governments with
respect to the planning of socio-economic development of the SCs,
STs, and OBCs.
 Regular reporting to the President of the country on the implementation of
these safeguards.
 Recommending steps to be taken to further the socio-economic
development and other welfare activities of the SCs, STs, and OBCs.
 Any other function with respect to the welfare, protection, development,
and advancement of the SC, ST, and OBC community.
 Critical analysis of their functioning:
 They have overlapping functions with each other.
 They have overlapping functions with other statutory and constitutional
bodies like the National Commission for Women, National Commission for
Human Rights, etc., and thus lack accountability.
 Issues in the appointment of people on a political basis and therefore
compromising the independence of these bodies.
 Shortage of staff and vacancies in these bodies hampering their
efficiency.
 They lack any independent investigation machinery. Thus, they are
dependent upon the state investigation machinery for looking into
complaints.
 Their recommendations are non-binding in nature.
 Lack of accessibility to these bodies. For example, the NCST has only 6
regional offices across the country.
 By themselves, they do not have any punishing powers. Also, their
procedure to raise the dispute/ issue against the public officials is highly
bureaucratic in nature.
 Way forward:
 Creation of a separate cadre of the police force for these bodies for an
independent investigation of the violation of the rights of these
communities.
 Better discussions should be encouraged on the Action Taken Report by
these bodies.
 Enhancing the accessibility of these bodies by setting up more regional
offices.
 A specially appointed body should be given the task of recruiting these
bodies.
 Advantages of the creation of a unified commission:
 It would help in preventing the duplication of efforts and therefore end up
making these bodies efficient.
 It would ensure clear accountability.
  Pooling resources would help in overcoming the problems related to
vacancies and shortage of staff.
 They would be able to look at issues from a broader perspective
transcending the communities.
 A separate cadre of the police force can be created for this unified
commission.

National Human Rights Commission (09:54 AM)

 It was created in 1993 under the Protection of Human Rights Act 1993
which has been recently amended. Human Rights Commission was
constituted at two levels: National and State.
 Now, the former retired Supreme Court Judge can also be the chairman of
the NHRC.
 The chairman and members are appointed by the President on the
recommendations of a six-member committee consisting of the Prime
Minister as its head, the Speaker of the Lok Sabha, the Deputy Chairman
of the Rajya Sabha, leaders of the Opposition in both the Houses of
Parliament and the Union Home Minister.
 They can be removed only on the charges of proven misbehavior or
incapacity if proved by an inquiry conducted by a Supreme Court Judge.
 Functions:
 It has all the powers of a civil court and its proceedings have a judicial
character.
 NHRC investigates grievances regarding the violation of human rights
either suo-moto or after receiving a petition.
 It has the power to interfere in any judicial proceedings involving any
allegation of violation of human rights.
 It can visit any jail or any other institution under the control of the State
Government to see the living conditions of the inmates and to make
recommendations thereon.
 It can review the safeguards provided under the constitution or any law for
the protection of human rights and can recommend appropriate remedial
measures.
 NHRC undertakes and promotes research in the field of human rights.
 NHRC works to spread human rights literacy among various sections of
society and promotes awareness of the safeguards available for the
protection of these rights through publications, media, seminars, and other
means.
 Strength of NHRC:
  Selection of the members and chairperson is done in an independent
manner.
 It is financially autonomous to a large extent.
 The power to conduct a suo-moto inquiry into cases of human rights
violation.
 It has easy accessibility.
 It has advised the government on various issues like custodial deaths,
farmer suicides, etc.
 Issues:
 Lack of financial autonomy with respect to the functioning of NHRC.
 They lack their own investigation machinery and are dependent upon the
state machinery.
 It can look into a matter within one year of its occurrence, i.e the
Commission is not empowered to inquire into any matter after the expiry of
one year from the date on which the act constituting a violation of human
rights is alleged to have been committed.
 The functions of the commission are mainly recommendatory in nature.
 There is also an issue of manpower shortage and vacancy at the level of
the chairperson.
 There is also a lack of awareness among the people about the NHRC.
 It has no power to punish the violators of human rights, nor to award
any relief including monetary relief to the victim.
 It has a limited role, powers, and jurisdiction with respect to the violation of
human rights by the members of the armed forces.
It is not empowered to act when human rights violations through private
parties take place.
 They are focusing on individual actions and not institutional actions.

Comptroller and Auditor General: (10:23 AM)

 In India, unlike the UK, the CAG doesn't perform the comptroller
functions but rather only does the auditing function.
 In the UK, any money withdrawn out of the consolidated fund should be
approved by CAG.
 Appointment and Removal of CAG:
 The CAG is appointed by the President of India by a warrant under his
hand and seal.
 The CAG holds office for a period of six years or up to the age of
65years, whichever is earlier.
 He can resign at any time from his office by addressing the resignation
letter to the president.
 He can also be removed by the president on the same grounds and in the
same manner as a judge of the Supreme Court. In other words, he can be
removed by the president on the basis of a resolution passed to that effect
by both the Houses of Parliament with the special majority, either on the
ground of proven misbehavior or incapacity.
 Independence of CAG:
 CAG is appointed by the President by warrant under his hand and seal
and provided with tenure of 6 years or 65 years of age, whichever is
earlier.
 CAG can be removed by the President only in accordance with the
procedure mentioned in the Constitution which is the manner same as the
removal of a Supreme Court Judge.
 He is ineligible to hold any office, either under the Government of India or
of any state, once he retires/ resigns as a CAG.
 His salary and other service conditions cannot be varied to his
disadvantage after the appointment.
 His administrative powers and the conditions of service of persons serving
in the Indian Audit and Accounts Department are prescribed by the
President only after consulting him.
 The administrative expenses of the office of CAG, including all salaries,
allowances, and pensions are charged to the Consolidated Fund of India
that is not subject to vote.
 Duties and Powers of CAG:
 As per article 149, the Parliament has enacted the CAG Act, 1971 which
describes the powers and the duties to be performed by this office.
 He audits the receipts and expenditures from the consolidated fund of
India.
 He audits the transactions related to contingency funds and public
accounts.
 He audits all the government companies and the central PSUs.
 He audits all the autonomous bodies and authorities receiving
government funds.
 Audit of accounts of any other authority at the request of the President.
 Assessing the net proceeds of the taxes.
 Acts as an agent of the Parliament and conducts an expenditure audit on
their behalf.
 He ensures the accountability of the executive to the legislature in
financial administration.
 To check the legality of the funds shown in the accounts have been
disbursed properly and to make sure it was spent for the specific
 purpose and by the specific body. This is also termed the compliance
audit by the CAG.
 Performance and Propriety Audit by CAG:
 Conventionally the CAG would only perform Compliance audits but in
recent times, it has ventured into the domain of performance and
propriety audits.
 According to this, the CAG focuses on whether the interventions,
programs, and institutions are performing in accordance with the
principles of economy, efficiency, and effectiveness and whether there is
room for improvement.
 The CAG tries to examine whether the social and economic objectives
associated with the intervention have been achieved or not and what
improvements could have been made in the same.
 Under the Propriety audit, the CAG examines the propriety of executive
actions and looks beyond the formality of the expenditure to highlight any
case of losses and extravagant expenditures.

Issues in the functioning of CAG (11:01 AM)

 Lack of independence in the manner of appointment.

 The constitution doesn't prescribe any eligibility criteria for the CAG
office. Often, the IAS officers are given preference over IAAS officers
who have specific domain expertise and should be given priority for such
positions.
 Presently, the CAG office is a single-membered body, considering the
increased workload, the possibility of a multi-membered body should be
explored.
 CAG is usually not interested in the audit of private companies involved in
the delivery of public services.
 CAG is an overburdened institution especially as it is auditing the PPPs as
well these days. Considering the increased workload, the CAG office
should be provided with extra resources and hands.
 The effectiveness of the report of CAG is dependent on the report of PAC
and discussions in the Parliament on its basis but it has been often
observed that adequate debate doesn't happen in the Parliament with
respect to such reports.
 It is often criticized that the CAG had the benefit of hindsight which is not
available to the policymakers, therefore, overtly critical reports of CAG
may have a detrimental effect on the functioning of the civil services.
 Significance of CAG Office:
  He is the friend, philosopher, and guide of PAC and provides them with the
necessary technical inputs to hold the executive accountable.
 In the recent past, the CAG has played an important role in unearthing
some of the major scams in the country.
 CAG looks at the material in front of it to ascertain whether relevant
factors were taken into consideration to reach a policy decision.
 Above all, it ensures that the principles of the constitution and law are
complied with by the executive agencies.

Comparison of Indian Constitution with other countries: (11:31 AM)

 Comparison with UK Constitution:

 Approach:
 Comparison between Indian Parliament and British Parliament:
 Power and Status: British Parliament is Sovereign, unlike in India where the
Judiciary examines the laws made by the Parliament. In India, there is the
doctrine of Basic Structure unlike in the UK and also India has a written
constitution, thus Parliament has limited powers, unlike in the UK.
 Structure: House of Lords i.e. upper house of the UK is one of the
weakest in the world whereas India's upper house has certain special
powers and is almost at par with the Lower House except for certain
areas.
 Functioning: Anti-defection law is applicable in India unlike in the UK,
also there is a concept of a shadow cabinet in the UK, unlike in India.
The position of the speaker is neutral in the UK, unlike in India.
 Comparison on the ground of Head of State:
 Appointment: In India, the Head of State is elected whereas, in the UK, the
Head of State is a monarch.
 Discretionary powers: They are given implicitly and explicitly to the
Indian Head of State but not available to the British Monarch.
 Nature of Constitution:
 India has a federal system of government whereas the UK has a unitary
form of government.
 India has adopted Due process of Law from Procedure established by
Law unlike in the UK.
 Comparison between Judiciary:
 Indian Judiciary has wide judicial review power, unlike the UK.
 Indian Judiciary has adopted Due process of Law from Procedure
established by Law unlike in the UK.
 Comparison with US Constitution: (11:46 AM)
  Head of the State:
 Elections of the Head of the State in India and the US:
 Powers of the Head of the State in India and the US: Appointment
powers, Veto powers.
 Removal Process of Head of State:
 Fundamental Rights:
 Right to Equality: special provisions for certain sections are missing,
reservation part is missing in the US, and Articles 17 and 18 are missing in
the US.
 Position, Functions, Power and Structure of Parliament:
 Difference and Similarities between US Senate and Indian Rajya
Sabha.
 The procedure of Amendment of the Constitution:
 Concept of Indian Secularism Vs Western Secularism
 Nature of Indian Federalism and US Federalism
 Parliamentary Vs Presidential form of Government

Representation of People Act, 1951: (12:11 PM)

 Election Offences Covered under RoPA:

 Any form of gratification for voters to vote for or refrain from voting.
 Any appeal to vote for or refrain from voting on grounds of religion, race,
caste etc.
 Promotion of feeling of enmity between different classes of citizens.
 Publication or making any false statement with respect to the personal
character of a candidate.
 Booth capturing by a candidate.
 Obtaining any assistance from a person in service of the state.
 Recent Reforms in RoPA:
 Section 126 A has banned the publishing of election poll results till the
elections are over in all the constituencies.
 Section 20 A allows the NRIs to vote via postal ballot.
 Introduction of NOTA option to allow the voters to express rejection of
candidates.
 Section 8(4) was held unconstitutional and void in Lily Thomas.
 Introduction of the VVPAT system to make the EVMs robust.
 An election can be nullified even after the declaration of results if the
candidate has failed to disclose criminal records.
 Introduction of the chapter in the Model Code of Conduct related to the
promising of freebies by the political parties.
 Provisions of RoPA to check criminalization of Politics:
  Section 33 A makes it mandatory for candidates to file an affidavit about
criminal cases against them.
 Section 125 A prescribes a punishment of up to 6 months for declaring
wrong information.
 Section 8 provides for disqualification for conviction in certain offenses.
 Section 123 deals with corrupt electoral practices.
 Section 29, political parties need to furnish reports about their financing.

For detailed content, Kindly refer to the study material as told by the faculty.

The Polity Syllabus has been concluded.

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