Governor is a titular head or constitutional head and at the same time, he is

the agent of the centre as the union government nominates Governor in

each state.

How is a Governor Appointed?

The Indian President appoints Governor for each state by warrant under his
hand and seal. Central Government is responsible to nominate the governor
for each state.

Note:

 Unlike elections of the President, there is no direct or indirect election for the
post of Governor.
 The office of a governor is not a part of the union executive and is an
independent constitutional office. The governor doesn’t serve the union
government and neither is subordinate to it.
 The nomination of a governor by the Union and his appointment by the President
in India is based on the Canadian model of government.

What is the term of the Governor’s office?

Since the Governor holds the office under the pleasure of the President, his
office has no fixed term. President can remove the Governor and the grounds
upon which he may be removed are not laid down in the constitution.

Governor may also get transferred from one state to another by the
President. He also can be reappointed.

Note:

 An interregnum is not allowed; following which a Governor may sit in the office
beyond 5 years (expiry of the term) till the new governor assumes the charge of
the office.
 At President’s discretion, the Chief Justice of the High Court of the concerned
state can also be appointed as the Governor on a temporary basis when and how
the President thinks fit. (Example – On the governor’s death, Chief Justice of HC
can be appointed as the governor.)
What are the powers and functions of the Governor?

Executive Powers of the Governor

The following comes under his executive powers:

1. Every executive action that the state government takes, is to be taken in his
name.
2. How an order that has been taken up his name is to be authenticated, the rules
for the same can be specified by the Governor.
3. He may/may not make rules to simplify the transaction of the business of the
state government.
4. Chief Ministers and other ministers of the states are appointed by him.
5. It is his responsibility to appoint Tribal Welfare Minister in the states of:
1. Chattisgarh
2. Jharkhand
3. Madhya Pradesh
4. Odisha
6. He appoints the advocate general of states and determines their remuneration
7. He appoints the following people:
1. State Election Commissioner
2. Chairman and Members of the State Public Service Commission
3. Vice-Chancellors of the universities in the state
8. He seeks information from the state government
9. A constitutional emergency in the state is recommended to the President by him.
10. The governor enjoys extensive executive powers as an agent of the President
during the President’s rule in the state.

Legislative Powers of the Governor

The following are the legislative powers of the governor:

1. It’s in his power to prorogue the state legislature and dissolve the state
legislative assemblies
2. He addresses the state legislature at the first session of every year
3. If any bill is pending in the state legislature, Governor may/may not send a bill to
the state legislature concerning the same
4. If the speaker of the legislative assembly is absent and the same is Deputy
Speaker, then Governor appoints a person to preside over the session
5. As President nominates 12 members in Rajya Sabha, Governor appoints ⅙ of the
total members of the legislative council from the fields of:
1. Literature
 2. Science
3. Art
4. Cooperative Movement
5. Social Service
6. As President nominates 2 members in the Lok Sabha, Governor nominates 1
member in state legislative assembly from Anglo-Indian Community.
7. He can consult Election Commission for the disqualification of members
8. With respect to the bill introduced in the state legislature, he can:

 Give his assent

 Withhold his assent

 Return the bill

 Reserve the bill for the President’s consideration (In instances where the
bill introduced in the state legislature endangers the position of state High
Court.)

Similar Topic: How a bill is passed in the Indian Parliament

Note: Governor can reserve the bill for the President’s consideration in the
following cases:

 When provisions mentioned in the bill violates the constitution (Ultra-Vires)

 When provisions mentioned in the bill oppose Directive Principles of State Policy
 When provisions mentioned in the bill hinders the larger interests of the country
 When provisions mentioned in the bill concern the national importance
 When provisions mentioned in the bill mention the acquisition of property that is
dealt with Article 31A in the constitution. (Read more about important articles in
the Indian Constitution in the linked article.)

Also,

1. An ordinance can be promulgated by him when either the Legislative Assembly

or Council (Unicameral/Bicameral) are not in session. (Read the Ordinance
Making Power of President & Governor in the linked article.)
2. The following reports are laid by him:
1. State Finance Commission
2. State Public Service Commission
3. Comptroller and Auditor General (Concerning the state finance)

Financial Powers of the Governor

The following are the financial powers and functions of the Governor:
 1. He looks over the state budget being laid in the state legislature
2. His recommendation is a prerequisite for the introduction of a money bill in the
state legislature
3. He recommends for the demand for grants which otherwise cannot be given
4. Contingency Fund of State is under him and he makes advances out that to meet
unforeseen expenditure. (Download the notes on the types of funds in India from
the linked article.)
5. State Finance Commission is constituted every five years by him. (Read about
the Finance Commission of India in the linked article.)

Judicial Powers of the Governor

The following are the judicial powers and functions of the Governor:

1. He has the following pardoning powers against punishment:

1. Pardon
2. Reprieve
3. Respite
4. Remit
5. Commute
2. President consults the Governor while appointing judges of High Court.
3. In consultation with the state High Court, Governor makes appointments,
postings, and promotions of the district judges.
4. In consultation with the state high court and state public service commission, he
also appoints persons to the judicial services.

On 3rd August 2021, the Supreme Court held that the Governor of a
State can pardon prisoners, including death row ones, even before
they have served a minimum of 14 years of a prison sentence.

The recent judgement regarding the Governor’s power to pardon overrides

a provision in the Code of Criminal Procedure — Section 433A —
which mandates that a prisoner’s sentence can be remitted only after 14
years of jail.
Legislative Privileges mentioned in
the
constitution
Freedom of speech and
publication under parliamentary
authority
This is defined under Article 105(1) and clause (2).
It gives the members of parliament freedom of
speech under clause (1) and provides under
Article 105(2) that no member of parliament will
be liable in any proceedings before any Court for
anything said or any vote given by him in the
Parliament or any committee thereof. Also, no
person will be held liable for any publication of any
report, paper, votes or proceedings if the
publication is made by the parliament or any
authority under it.
The same provisions are stated under Article 194,
in that members of the legislature of a state is
referred instead of members of parliament.
Both the Articles, Article 19(1)(a) and Article 105
of the Constitution talks about freedom of speech.
Article 105 applies to the members of parliament
not subjected to any reasonable restriction.
Article19(1)(a) applies to citizens but are subject
to reasonable restrictions.
Article 105 is an absolute privilege given to the
members of the parliament but this privilege can
be used in the premises of the parliament and not
outside the parliament.
If any statement or anything is published outside
the parliament by any member and if that is
reasonably restricted under freedom of speech
then that published article or statement will be
considered as defamatory.
Case Law

Dr. Jatish Chandra Ghosh v. Hari Sadhan

Mukherjee And Others, AIR 1961 SC 613
The appellant is an elected member of the West
Bengal Legislative Assembly. The appellant had an
intention to ask certain questions in the assembly
and therefore he gave the notice for the same. The
questions to be asked in the assembly were
refused in compliance with the rules of procedure
for the conduct of the business in the assembly.
But the appellant published those questions he was
not allowed to ask in the assembly in a local
newspaper called JANAMAT.
The first respondent, who was then functioning as
a Sub-Divisional Magistrate and because of whose
conduct the matter of questions arose, filed a
complaint against the appellant and two others,
the editor and the printer and publisher of those
questions.
The petition contained the fact that the appellant
had made slanderous accusations against him with
an intention to be read by the members of the
public. These accusations were false and the
appellant published them, having an intention of
harming the reputation of the complainant. He also
alleged that publishing such false questions in the
journal first requires prior permission by the
government in instituting the legal proceeding
against the public servant.
In this case, it was held that the provisions of
Article 194 even though disallowed by the speaker
were a part of the proceedings of the house and
publication for the same will not attract any
sections of the Indian Penal Code.
He will not be prosecuted, as Article 194(1) not
only gives them freedom of speech but also give
the right to ask questions and publish them in the
press.
P.V. NARSIMHA RAO v. STATE (1998)
The facts of the case are – some of the MP’s
received bribes to vote against the motion of no-
confidence against the Prime Minister P.V.
Narsimha Rao. He was charged under IPC and
Prevention of Corruption Act on the grounds that
he bribed some MPs to vote against the no-
confidence motion when he was serving as the
Prime Minister. In this case, the question arose
that under Article 105(2) does any member of
parliament have any immunity to protect himself in
criminal proceedings against him?
It was held by the majority of the Court that under
Article 105(2) the members of the parliament will
get immunity and thus, the activity of taking bribe
by the MP’s will get immunity despite anything said
by them or any vote given by them in the
Parliament. The Court further explained that the
word “anything” here will be interpreted as a wider
term. The Court interpreted the term “anything” in
a wider sense and did not prosecute P.V. Narsimha
Rao.
Power to make rules
The Parliament has the power, which is given by
the Constitution of India, to make its own rules but
this power is subjected to the provisions of the
Constitution. Though it can make its own rules, the
rules should not be made for its own benefit. If
they make any rule which infringes any provision
of the Constitution then it would be held as void.
Internal
independence/autonomy
For the effective working of both the houses of
parliament and their members, internal
independence should exist without the interference
of any outside party or person. The houses can
deal with their respective issues internally without
any interference of the statutory authority.
The Indian Judiciary might not interfere with the
proceedings or issues dealt in the parliament or by
the members in the course of their business.
Nevertheless, it may interfere in the proceedings if
it is found to be illegal or unconstitutional.
Freedom from being arrested
The member of parliament cannot be arrested 40
days before and 40 days after the session of the
house. If in any case a member of Parliament is
arrested within this period, the concerned person
should be released in order to attend the session
freely.
Right to exclude strangers from
its proceedings and hold secret
sessions
The object of including this right was to exclude
any chances of daunting or threatening any of the
members. The strangers may attempt to interrupt
the sessions.
Right to prohibit the publication
of its reporters and proceedings
The right has been granted to remove or delete
any part of the proceedings took place in the
house.
Right to regulate internal
proceedings
The House has the right to regulate its own
internal proceedings and also has the right to call
for the session of the Legislative assembly. But it
does not have any authority in interrupting the
proceedings by directing the speaker of the
assembly.
Right to punish members or
outsiders for contempt
This right has been given to every house of the
Parliament. If any of its members or maybe non-
members commit contempt or breach any of the
privileges given to him/her, the houses may punish
the person.
The houses have the right to punish any person for
any contempt made against the houses in the
present or in the past.
Privileges and fundamental
rights
Part III of the Constitution contains fundamental
rights wherein Article 19(1)(a) grants freedom of
speech to the citizens. It is subjected to reasonable
restrictions. These restrictions are:-
Sovereignty and integrity of India should be
maintained,
Security of the states should be maintained,
Public order should not be disturbed,
Decency and morality should be maintained,
Defamation should be avoided,
Incitement to an offence should be avoided,
Contempt of court should be avoided,
Friendly relations with foreign states should be
maintained.
Where on the other hand the members of
parliament have been granted powers, privileges
etc. their powers or privileges are absolute unlike
fundamental rights for the citizens.
The Parliament enjoys mostly all the supreme
powers while making laws and exercise its power
to the best possible extent because of the absolute
nature of its powers and privileges.
The powers of the legislators are too wide such as
they decide their own privileges, include points
which can breach the laid down privileges, and also
decide the punishment for that breach.
Article 105(3) and Article 194(3) states that the
parliament should from time to time define the
laws or pass the laws on the powers, privileges and
immunities of the members of the parliament and
members of the legislative assembly.
Case Law
Gunupati Keshavram Reddy v. Nafisul Hasan
and the State of U.P AIR 1952
The facts of the case:- The U.P. Legislative
Assembly issued a warrant against the Home
Minister who was arrested from his residence in
Bombay on the ground of contempt of the house.
The Home Minister under Article 32 applied a writ
of Habeas Corpus on the ground that his detention
under Article 22(2) violates his fundamental right.
The Supreme Court accepted the arguments and
ordered his release according to Article 22(2). He
was not presented before the magistrate within
24hrs of his arrest or detention. Not presenting
him before the magistrate resulted in the violation
of his fundamental right under Article 22(2). In this
case, it was opined that Article 105 and Article 194
cannot supersede the fundamental rights.
MSM Sharma v. Sri Krishna Sinha AIR 1959
SC395
The facts of the case:-the petitioner is the editor of
the English Daily newspaper of Patna. He published
a report on the proceedings of the Bihar Legislative
Assembly and the reports were said to be removed
by the speaker.
The editor was presented before the Legislative
Assembly to give reasons for the breach of
privilege committed by him. At first, he was held
guilty for his conduct. Then, in an appeal, the
editor under Article 19 (1)(a) argued that he has a
right to freedom of speech. But the Court denied
all the arguments based on Article 19(1)(a) as it is
a general provision and Article 194 is a special
provision. If at any time both of these articles
come under any conflict the latter will prevail over
the former. As the general provision cannot
overrule the effect of the special provision.
It has also been suggested that if both Articles,
Articles 19(1)(a) and 194, are in conflict, the rule
of Harmonious Construction (every statute should
be read as a whole and interpretations consistent
of all the provisions of the statute should be
adopted when in conflict of any statute or any part
of the statute) should be applied.

OFFICE OF PROFIT
What Comes Under the Office of Profit?
The 1959 law does not clearly define what constitutes an office of profit but
the definition has evolved over the years with interpretations made in
various court judgments.

The office of profit comprises any place or position that carries or offers
some remuneration, financial advantage, benefit etc.

Factors constituting an ‘Office of Profit’

In 1964, the Supreme Court ruled that the test for determining whether a
person holds an office of profit is the test of appointment.

Several factors are considered in this determination including factors such

as:

1. whether the government is the appointing authority,

2. whether the government has the power to terminate the appointment,
3. whether the government determines the remuneration,
4. what is the source of remuneration, and
5. the power that comes with the position

Where has the Office of Profit Concept been Adopted

from?
The office of profit concept has been adopted from the British Parliamentary
model. This concept is based on similar lines with the English Act of
Settlement 1701

Advisory Jurisdiction of the Supreme Court

The Supreme Court has advisory jurisdiction over matters that have been
specifically referred to it by the President of India under Article 143 of the
Constitution.
  There is no specific provision for such an advisory jurisdiction in the Constitution
of the United States of America or that of Australia.
 In fact, the American Supreme Court has refused to entertain such pleas by the
Executive, it stated that it will focus on more concrete matters concerning the
law of the land.
 However, according to Section 60 of the Canadian Supreme Court Act, 1906, the
Governor-General may refer to important questions of law to the Supreme Court
for its advisory opinion.
 A similar provision that empowered the Federal Court to give an advisory opinion
on matters referred can be found in Section 213(1) of the Government of India
Act, 1935. The draft constitution later replaced the words “Governor-General”
and “Federal Court” with “President” and “Supreme Court” respectively.

Cases under Advisory Jurisdiction

Re Delhi laws Act Case

The first case that came to the Supreme Court via this jurisdiction was
the Re Delhi laws Act Case. In this case, the Court considered the validity
of a statute with respect to delegated legislation. A bench of seven judges
presided over the case but gave differing opinions. While all judges agreed
that the legislature had the power to delegate some lawmaking to the
executive, they differed on the extent to which such power may be
delegated. In general, the bench expressed two views:

 The Parliament can delegate its legislative power to any extent subject to the
condition or limitation that it must not efface itself or abdicate its powers.
 The Parliament could not delegate to another agency its ‘essential’ legislative
function, which implied policy formulation and enactment of policy it into a
binding rule of conduct.

Cauvery Dispute Tribunal Case

In the case of the Cauvery Dispute Tribunal, the Central Government

appointed a Tribunal to look into the dispute regarding the Cauvery River
between the states of Karnataka and Tamil Nadu.

 The Tribunal in one of its orders directed the State of Karnataka to release a
certain amount of water to Tamil Nadu.
 The Karnataka Government refused to honour the Tribunal’s decision and
promulgated an ordinance which empowered them to not implement the
Tribunal’s order.
 The President, in order to resolve the dispute, sent a reference to the Supreme
Court for its opinion on the matter.
  The Supreme Court held that the impugned ordinance was unconstitutional
because it not only violated Inter-State Water Dispute Act, 1956 but was also
against the principles of natural justice as the Karnataka Government became a
judge in its own cause.

Ismail Faruqui v Union of India

In Ismail Faruqui v Union of India, a five-judge bench of the SC

contended that the Presidential reference seeking the Court’s opinion on
whether there was initially a temple where the Babri Masjid later stood was
unnecessary and superfluous and also against the concept of secularism
favouring one religious section over another and hence, doesn’t need to be
answered.

 In Special Reference No. of 2002, the Apex Court held that it was well within its
jurisdiction to answer and advice the President in a reference made under Article
143(1) if the questions referred are likely to arise in future or such questions are
of public importance or there is no decision of the Supreme Court which has
decided the question.

Some of the other important cases that were referred to the Supreme Court
for its advisory opinion include Re Kerala Education Bill, Re BeruBari, Re Sea
Customs Act, Special court Reference case, Re Presidential Bill and Re
Special Courts Bill.

Conclusion

To conclude, the advisory jurisdiction of the Supreme Court in Article 143

gives the President the power to make references to the SC on any matters
but it can’t be called the Jurisdiction of Supreme Court. The views taken by
the Court are not binding on the President and it is not law within Article 141.
It is on the Court to examine if it should be answered or not, if not then with
valid reasons.

Original Jurisdiction of the SC in India

Original jurisdiction of a court refers to a matter for which the particular
court is approached first. In the case of the Supreme Court in India, its
original jurisdiction is covered under Article 131. It involves the following
cases:
 1. Any dispute between the Indian Government and one or more States.
2. Any dispute between the Indian Government and one or more States on one side
and one or more States on the other side.
3. Any dispute between two or more States.
4. Article 32 of the Constitution provides original jurisdiction to the SC for matters
regarding the enforcement of Fundamental Rights.
5. The SC can issue writs, directions, or orders including writs in the nature of
mandamus, habeas corpus, quo warranto, prohibition and certiorari.
6. The SC also has the power to direct the transfer of a criminal or civil case from
the High Court in one State to the High Court in another State.
7. It can also transfer cases from one subordinate court to another State High Court
8. If the SC deems that cases involving the same questions of law are pending
before it and one or more High Courts, and that these are significant questions of
law, it can withdraw the cases before the High Court or Courts and dispose off all
these cases itself.
9. The Arbitration and Conciliation Act, 1996 gives SC the authority to initiate
international commercial arbitration.

The Constitution of India bars the Supreme Court from hearing certain
disputes in its original jurisdiction, including:
 Disputes arising from treaties, agreements, or covenants entered into
before the Constitution came into effect
 Disputes that specifically state that the Supreme Court's jurisdiction
does not apply
 Inter-state water disputes
 Matters referred to the Finance Commission
 Disputes between the Centre and states over the adjustment of
certain expenses and pensions
 Ordinary commercial disputes between the Centre and states
 Recovery of damages by a state against the Centre

Supreme Court’s appellate

jurisdiction
The Supreme Court of India can exercise appellate
jurisdiction under the following heads:
1. Authority regarding constitutional matters
2. Authority regarding civil matters
3. Authority regarding criminal matters
4. Authority regarding special leave petition.
Appellate Jurisdiction under
Indian Constitution
1. Article 132: Supreme Court’s Appellate
Jurisdiction over appeals from high courts in
certain cases i.e., constitutional matters.
2. Article 133: Supreme Court’s Appellate
Jurisdiction over appeals from high courts
regarding civil matters.
3. Article 134: Supreme Court’s Appellate
Jurisdiction over appeals in criminal matters.
4. Article 135: Supreme Court possesses
jurisdiction over the federal court’s legal
jurisdiction and can exercise that authority.
5. Article 136: Appeal by Special Leave under the
discretion of supreme court | Special Leave
Petition.
In simple terms it can also be said that an appeal
in the Supreme Court can be made against the
order of the high court, but also with the
permission of the High Court.
Article 132: Supreme court’s
Appellate Jurisdiction over
appeals from high courts in
certain cases i.e., constitutional
matters
According to Article 132 of the Indian Constitution,
1950, it gives power for an appeal to the Supreme
Court from any High Court “judgement, decree, or
final order”, where case is related to any criminal
matter, civil matter, or any other matter and if it is
certified by the High Court that the case involves a
substantial question of interpretation of the law
related to Constitution and Where such a certificate
is given by the high court itself. Any party on such
grounds can appeal in supreme court on ground
that in matter of substantial question, case has
been decided.
As observed in SP Sampath Kumar vs. Union Of
India (1987), in this case the Supreme Court of
India had held that an appeal under Article 132
can only be filed in cases where a certificate is
issued by the High Court which mentions that the
case involves a substantial question of law. Further,
in Keshav Mills Ltd. vs. Commissioner of Income
Tax, Bombay (1953), it was concluded that an
appeal under Article 132 can only be filed against
the final judgement of the High Court.
In the case of the State of Madras vs. Rowjee
(1952), it has been held that an appeal under
Article 132 cannot be filed against an interlocutory
order of the high court and it can be filed only
against final judgement. Also, in State of Andhra
Pradesh VS. Sree Rama Rao (1963), Supreme
court held that a certificate from high court is not
merely a formality and that high court must apply
its mind before granting such certificate.
Article 133: Supreme Court’s appellate
jurisdiction over appeals from high
courts regarding civil matters
According to Article 133 clause (1) of the Indian
Constitution, 1950, any decision, decree, or final
order of a high court in a civil case taking place on
Indian soil may be appealed to the Supreme Court.
An appeal can be made under this Article if the
high court certifies the following conditions under
Article 134A:
(a) That the case for which an appeal can be made
includes a fundamental legal issue of wide
significance; and
(b) That according to the high court’s opinion, the
substantial question regarding constitutional law
needs to be decided by the Supreme Court.
Despite any provisions mentioned in Article 132,
any party appealing to the Supreme Court under
clause (1) may assert that a significant or basic
legal matter regarding the clarification of this
Constitution has been incorrectly decided as one of
the reasons in such an appeal and Despite
anything mentioned in this article, until and unless
the Parliament of India by-law provides that no
appeal from the final order may be made to the
Supreme Court., judgement, or decree of 1 Judge
of a high court.
The Supreme Court of India while deciding the
case of M/s. Salem Advocate Bar Association,
Tamil Nadu v. Union of India (2005), has observed
that the expression “judgement, decree, or final
order” in Article 133 of the Constitution must be
interpreted broadly to include interlocutory orders
as well.
The judgement in the case of State of West Bengal
v. Kesoram Industries Ltd. (2004) had clarified
that the value of the subject matter in a civil case
for determining the appellate jurisdiction of the
Supreme Court includes not only the claim made
by the plaintiff but also the counter-claim made by
the defendant.
In Som Prakash Rekhi v. Union of India (1981),
the Supreme Court has held that an appeal under
Article 133 of the Constitution lies only if the
judgement or order appealed against is a final
judgement, decree or order which finally
determines the rights of the parties in the suit.
In Union of India v. Deoki Nandan Aggarwal
(1992), the Supreme Court held that the test to
determine whether an issue raised in a civil suit
involves a substantial question of law of general
importance is whether the issue is of such a nature
that it would affect the rights of a large number of
people or a significant section of society.
Article 134: Supreme Court’s
Appellate Jurisdiction in criminal
matters
Article 134 of the Indian constitution talks about
the supreme court’s appellate jurisdiction in
criminal matters. According to Article 134 “any
judgement, final order, or punishment” issued by a
high court in a criminal case taking place on Indian
soil, there is a right of appeal to the Supreme
Court:
1. If a high court overturns an accused person’s
acquittal following an appeal from the accused
and sentenced him to death, i.e., if the high
court reverses his decision of acquittal of the
accused person upon filing an appeal and
sentences that person to death then in that case
an appeal can be made to the Supreme Court.
2. If the high court withdraws any case for trial
before itself, from any court subordinate to its
authority and if in such trial high court
sentences an accused person to death after
convicting him, then, in that case, appeal can be
made to the Supreme Court and appellate
jurisdiction of Supreme Court will come into
effect; or
(c) If the High Court certifies that the case is a fit
case pursuant to Article 134A for making an appeal
to the Supreme Court, provided that high court will
have to establish such conditions where an appeal
is allowed, it is subject to such provisions which
may be made in that behalf under Article 145
clause 1.
Also, in this Article, the Supreme Court can be
conferred with any further powers by law through
parliament in which supreme court can entertain
and hear appeals from “any sentence, judgement
or final order” issued by a High Court in a criminal
case that must take place on Indian soil. All the
matter is subject to such conditions that the law
may impose.
Landmark judgments
Lets understand essence of this article with some
landmark cases:
1. K.M. Nanavati vs. State of Maharashtra (1962):
This case was a sensitive and sensational
murder trial that eventually led to the abolition
of the jury system in India. The case was
initially tried before a jury, whose verdict was
later set aside by the Bombay High Court. The
case was then appealed to the Supreme Court
under Article 134.
2. Indira Nehru Gandhi vs. Raj Narain (1975): This
case dealt with the election dispute between
Indira Gandhi and Raj Narain. The Allahabad
High Court declared Indira Gandhi’s election to
be null and void, which was later challenged in
the Supreme Court under Article 134.
3. Zahira Habibullah Sheikh vs. State of Gujarat
(2004): This case involved the Best Bakery
massacre, where several people were burnt
alive during the communal riots in Gujarat in
2002. The case had been marked by witness
intimidation and a botched investigation. The
Supreme Court took suo moto cognizance of the
matter under Article 134 and transferred the
case out of Gujarat.
4. Ajmal Kasab vs. State of Maharashtra (2012):
This case dealt with the 2008 Mumbai terror
attacks, where Pakistani national Ajmal Kasab
was one of the main perpetrators. Kasab was
convicted and sentenced to death by the trial
court, which was later upheld by the Bombay
High Court. The case was then appealed to the
Supreme Court under Article 134.
5. Yakub Abdul Razak Memon vs. State of
Maharashtra (2015): This case dealt with the
1993 Bombay bombings, where Yakub Memon
was one of the conspirators. Memon was
convicted and sentenced to death by the trial
court, which was later upheld by the Bombay
High Court. The case was then appealed to the
Supreme Court under Article 134, which
rejected his plea for mercy and upheld his death
sentence.

Article 135: Supreme Court

possesses jurisdiction over
federal court’s legal
jurisdiction and can exercise
that authority.
Federal Courts functioned until the supreme court
of India was established in 1950. Federal courts
were the supreme authority of the Indian judicial
system.
Under current law “Jurisdiction and powers” of the
Federal Court are to be exercised by the Supreme
Court of India unless otherwise specified by law or
by Parliament. The supreme court shall also have
the authority, jurisdiction or power for the cases
which do not fulfil the criteria under Article 133 or
Article 134. Before the implementation of this
Constitution, the Federal Court and the Supreme
Court could exercise all these functions in
accordance with any applicable law.
In the case of the State of Maharashtra v. Milind
(2000), the question before the Supreme Court
was whether the Bombay High Court had the
jurisdiction to hear an appeal against an order of
acquittal passed by a Metropolitan Magistrate. The
Supreme Court held that the high court had the
jurisdiction to hear such an appeal under Article
135 of the Constitution.
Further, in the case of Moosa Raza v. State of
Kerala (2005), Article 135 was interpreted in the
context of appeals from the decisions of the Rent
Control Appellate Authority. The Supreme Court
held that when a statute provides for two forums
of appeal, both the forums should be deemed to
have concurrent jurisdiction unless the statute
expressly excludes one of them.
Article 136: Appeal by Special Leave under
the discretion of supreme court | Special
Leave Petition
In ordinary situations, the procedure to appeal in
Supreme Court can be found from Articles
132,133,134. There might be the chance that after
covering all the aspects of appeal to the Supreme
Court, any situation may arise whose solution is
not provided in Articles 132,133 and 134, i.e.,
some rule of law might still be broken. Thus, to
overcome this, a special power is given to the
Supreme Court under Article 136 of the Indian
Constitution, 1950. This power completely rests
upon the discretion of the Supreme Court.
Before the Supreme Court takes up the case
depending on its discretion, till that time this is
known as a petition, but once Supreme Court
accepts this petition then it is known as an appeal.
This article can be termed as an article of special
leave petition.
As observed and concluded in the landmark
judgement of Ramakant Rai vs. Madan Rai (2004),
the Supreme Court had observed that any private
party can also file an appeal under Article 136 in
the Supreme Court challenging acquittal.
In the case of Dharambir Singh v. Central Bureau
of Investigation (2008), the Supreme Court held
that the power under Article 136 is not limited to
questions of law but extends to questions of fact as
well. However, the court will not interfere with the
findings of fact unless there is a gross miscarriage
of justice.
In the case of Raja Ram Pal v. Speaker, Lok Sabha
(2007), the Supreme Court of India has held that
the power under Article 136 is not absolute and
should be exercised sparingly and only in
exceptional cases where there is a manifest error
of law or flagrant violation of the principles of
natural justice.
In the case of Lachmi Narain v. Union of India
(1975), the Supreme Court had once again held
that the grant of leave under Article 136 does not
automatically stay the operation of the impugned
order and that the court has the power to pass
appropriate interim orders while the appeal is
pending before it.
Final Appellate Authority/Final Order of
Supreme Court
The Supreme Court is the final authority and the
highest court of appeal, and no appeal lies and can
be filed after or against the judgement of the
Honourable Supreme Court. But one option is
given where the Supreme Court can review its own
judgement within 30 days from the days of
judgement on the grounds of review.

Conclusion
As we come to the end of this article, it is
necessary to state that the appellate jurisdiction,
as has been discussed under the Indian
Constitution, stands as a fundamental pillar of the
Indian judicial system and therefore exercising the
same is extremely essential as per circumstances.

Centre-State legislative
relations
The Constitution of India establishes a dual
constitutional authority with a simple separation of
powers, each of which is sovereign within its
domain. The Indian federation is not the result,
and Indian units cannot leave the union, as a
consequence of an arrangement between
independent units. There are also extensive
provisions in the constitution to govern the various
dimensions of relations between the centre and the
states. Central-state relations are separated by the
following:
1. The Legislative relations;
2. The Administrative relations;
3. Financial relations.
But under this article, we will cover the relationship
between legislature and centre-state.
The legislative ties between the centre and state
are governed by Articles 245 to 255 of Part XI of
the Constitution. It sets out a double division
between the Union and the states with legislative
powers i.e, in territorial recognition and relation to
the subject.
Territory jurisdiction:
Concerning the territory, Article 245(1) requires a
State Legislature to make law for the entire or any
part of the State to which it belongs, subject to the
dispositions of this constitution. Unless the
boundaries of the state itself are broadened by an
act of the Parliament, a State legislature can not
broaden territorial jurisdiction in any circumstance.
On the other hand, Parliament has the right to
legislate “on all or part of India’s territory, which
does not only include the States but also Indian
Union territory.” It also has the strength of extra-
territorial laws that no state legislature has. This
means that the laws made by Parliament would
apply not only to individuals and territory but also
to Indian subjects living anywhere in the world.
However, there are other limitations on
Parliament’s territorial competence. However,
certain unique clauses of the constitution are
subject to the plenary territorial competence of
Parliament. These are the following:
1. The President can make regulations that are
equivalent to the laws of Parliament, some
territories of the Union, such as the Andaman
and Lakshadweep Region, and these regulations
may revoke or amend a law adopted by
Parliament on the said territories (Article 240).
2. Notifications can be issued by the governor
(Para 5 of Schedule 5(3) of the Indian
Constitution) that prevent or change the
application of the Acts of Parliament to any
programmed area of government.
3. Para 12(1)(6) of schedule VI says that, by public
notification, the Governor of Assam may,
subject to such exceptions or adjustments as
may be stated in the notification, direct that any
other act of Parliament shall not apply to the
autonomous region or district of the state of
Assam or apply to that region or section.
In the case of A.H. Wadia v. CIT, the court held
that if there is an appropriate relation or link
between the State and the object, i.e. subject
matter of legislation, the State legislature cannot
make extraterritorial law (objects can not be
located physically within territorial limits of the
State). In the case of Wallace Bros, v. CIT, a
licensed business in England was a partner in an
Indian venture. Indian revenue tax authorities
were aiming to tax the company’s entire income.
The Court affirmed that the derivation for a year of
the substantial part of its revenue from British
India has given a corporation sufficiently territorial
relation to justify that it is regarded domestically in
India for all purposes of income taxation.
Hence, the above particular requirements have
been adopted since the areas mentioned in the
question are outdated and may cause difficulties or
other injurious effects if they are implemented
indiscriminately.
Subject matter:
A federal structure demands that the centre and
States share their forces. The nature of the
distribution is different in every region, depending
on the local and political context. For instance, in
America, sovereign states did not like the absolute
central government subordination. Therefore,
although maintaining the remainder, they believed
in confiding subjects of popular interest to the
central government. Australia was pursuing just
one set of forces in the United States. There are
double listings in Canada, leaving the residue in
the centre by the federal and provincial
governments. The Canadians were mindful of the
tragic circumstances that resulted in the Civil War
of 1891 in the United States of America. We knew
the vulnerabilities of the centre. And it was a good
core that they wanted. The Canadian regime chose
a strong centre as a result of the Indian
Constitution-Makers. However, they have added
one more list-a a concurrent list.

The extent of laws made by

Parliament and by the
legislatures of states
So far as the subjects of law are concerned, the
Constitution uses the Government of India Act of
1935 as its basis and subdivides authority into
three lists between the Union and the States.
These are:
(i)The Union list,
(ii) the State list, and
(iii) the Concurrent list.
There are 98 subjects on the Union List, over
which the Union has exclusive authority. The topics
on the Union list, for example, security and foreign
relations, are of national significance, etc. There
are 59 topics in the State List over which countries
have exclusive jurisdiction. The concerns listed on
a State list, such as public order, police and public
safety, are of local or national importance. The
Concurrent List contains 52 subjects like criminal
and civil cases, marriage and divorce, economic
and special planning unions, money, media,
magazines, employment, management of the
population and preparation of the families, etc. and
both the Union and States can enact laws on this
list but the federal rule prevails over state law in
the case of a dispute between the law of the
Central and the State law. The purpose of the
constitutional inclusion of the list was to ensure
continuity in key legal principles across the
country. Legislatures both in the parliament and in
the State may make laws on matters mentioned
above, but a preliminary and ultimate right of the
centre is to legislate on established matters. In the
event of a conflict between the law of the State
and the law of the Union on a subject in the
Concurrent List, the law of the Parliament shall
prevail.
भारतीय संिवधान के बारे में जाने
Residuary powers of
legislation
The Constitution also confers on the Union
Parliament residual powers (subjects not
mentioned on any of the three lists). Article 248
notes that, concerning anything that is not listed in
any of the three lists, the Parliament has the
exclusive authority to make legislation. It
represents the constitutionalist inclinations to a
strong core. Another unique feature of the residual
powers is that the final judgment on whether or
not a particular matter falls within the residual
powers of the court. In comparison to the
convention of other federations around the world,
residual powers have been granted to the Union,
where the residual powers are assigned to the
States. In the case of a dispute, however, it is up
to the court to determine whether a particular
issue falls under the residual power or not. The
Parliament is therefore allowed to enact any
legislation on any issue not mentioned in List II or
III. This authority shall include the authority to
legislate, which does not include a tax on either of
them (the Governor-General, and not a federal
legislature which exercised these powers, must be
observed until independence).
Entry 97 of List I also provides for the exclusive
powers of Parliament to make laws on all subjects
not mentioned in List II or III. The remaining
powers of legislation shall be solely delegated to
the Union Parliament under Article 248 and Entry
97 List I. The spectrum of residual powers,
however, is limited as all the topics included in all
three lists and residual powers come under, or not,
the Court’s view of a case. The reasoning for this
power is that it allows the House to legislate on
any issue that has avoided the House’s oversight
and on the subject that currently can not be
recognized. It requires Parliament, therefore, to
enact legislation on topics that have taken society
forward. The constitutional framers intended,
however, that the use of residual powers should be
the final and not the first step.
In the case of Kartar Singh v. State of Punjab and
UOI v. H.S. Dhillon’s case, the court held that
parliament may combine its power with the
residual power under Article 248 under entry into
the Union List or Competition List. Also in the case
of UOI v. H.S. Dhillon, it was held that Gift Tax Act,
Inquiry Act Commissions, etc. are valid under the
parliamentary residuary power. In the case of
State of A. P. v. National Thermal Power Corpn.
Ltd. the Supreme court held that unless an entry
does not state an exclusion from the area of
legislation that is evident at the time of obvious
reading, the absence of exclusion can not be read,
if a particular clause in the Constitution that forbids
such legislation is valid, as allowing the legislative
power not expressly excluded from it.

Parliament’s power to
legislate on State List
Although the Central Government does not have
the power in the common circumstances to
legislate on matters mentioned in that State, the
Parliament of the Union may only make laws on
such matters under some special conditions. These
special conditions are:
a) In the National Interest
(Art.249)
Several Articles of the Indian Constitution defined
the parliament’s predominance in the legislative
area. Article 249 provided that, where Rajya Sabha
has declared, by a resolution approved by not less
than two-thirds of the members present and
voting, that it is required or reasonable, in the
national interest for Parliament to lay down laws in
respect of any matter mentioned in the State List
referred to in the resolution, it becomes lawful for
Parliament to lay down laws for the whole or any
part of the proceedings. For the time in question,
such a resolution was in place not for more than
one year. However, the Rajya Sabha could extend
the term of such a resolution for a further duration
of one year from the date on which it would
otherwise have ceased to operate. The law of
Parliament, which Parliament should have been
responsible for passing such a resolution by Rajya
Sabha, ceased to have any effect on the expiry of
a term of six months after the date on which the
resolution ceased to be in force, except in the case
of things done or omitted to be done before the
expiry of that time. This provision allowed the
Rajya Sabha, representing the States, to place any
matter of local significance but national interest in
the concurrent list. The Rajya Sabha can do so at
any moment, whether emergency or not.
b) Under Proclamation of
National Emergency (Art. 250)
Article 250 notes that in the case of a declaration
of emergency, Parliament shall have the power to
make law on any item on the State List. This
legislation shall extend in the case of a national
emergency (Article 352) and every State in
compliance with the Order of the President (Article
356) or the event of a financial emergency (Article
360). Under this time, the laws of the State or
States shall remain inoperative to the degree that
they are contrary to the law of the centre (Art.
251). Thus, the Parliament as a whole will legislate
on the subjects specified in the State List while the
National Emergency Declaration is in effect.
However, the laws enacted by the Parliament
according to this clause shall cease to affect the
expiration of a period of six months after the
termination of the Proclamation, except in the case
of items done or omitted to be done before the
expiration of that time.
c) By Agreement between
States (Art. 252)
Article 252 provides for regulation by invitation. If
the Legislatures of two or more States adopt a
resolution and order the centre to make a law on a
specific item of the State Register, it shall be legal
for the Parliament to make a law. In the first place,
such law shall apply to the States which have
made such a request, unless any other State may
subsequently follow it by passing such a resolution.
Third, such laws can only be amended or repealed
by Parliament. The parliament may also make laws
about a State subject if two or more states’
legislatures agree that a parliament is allowed to
make laws concerning any issue mentioned in the
State List concerning that Matter. Subsequently,
any act passed by the Parliament shall extend to
those States and to any other State which has
passed such a resolution. Parliament also has the
power to amend or revoke any act of this kind.
d) To Implement Treaties (Art.
253)
To implement treaties or international conventions,
Parliament shall have the power to legislate
concerning any subject. In other words, even
about a state issue, the usual distribution of
powers does not preclude Parliament from passing
legislation to satisfy its foreign obligations or
through such legislation (Article 253). The
Parliament may pass any Treaty, international
agreement or convention, with any other country
or state, or any decision taken during an
international conference, association or other
entity, within the whole and any part of the
territory of India. Any law enacted by this
Parliament shall not, in that it covers the subject
listed in the list of States, be invalidated.
e) Under Proclamation of
President’s Rule (Art. 356)
By Article 356 and Article 357 of the Indian
Constitution, the prevalence of Parliament was
further defined. Article 356 stipulated that if the
President was satisfied that there existed a
situation in which the government of the State can
not be enforced according to the provisions of the
Constitution, he may declare exercisable by or
under the competence of the Parliament the
powers of the Legislature of that State. Parliament
must delegate the legislative power to the
President, as provided for in Article 357. The
President may also allow the Parliament to exercise
the powers of the State legislature during the
Declaration of the Rule of the President as a result
of the collapse of constitutional machinery in the
State. Nevertheless, all such regulations passed by
Parliament cease functioning six months after the
declaration of the rule of the President is over.

Conclusion
The Constitution authorizes the centre in the
following ways to have control over the state
legislature:
1. The Governor can withhold for President’s
consideration those forms of bills approved by
the State legislature. The President has an
absolute veto on them.
2. In the State legislature, even with the prior
approval of the President as imposing limitations
on free trade and commerce can bill are made
on such matters enumerated in the State list.
3. It is necessary for the President for the States
to withhold the bills of funds and other
budgetary measures approved during national
crises by the State legislature.
As a result, it is very clear from the scheme of
allocation of legislative powers between the Union
and the States that framers have bestowed more
authority on the Parliament than against the
States. The States do not have sole authority over
the topics given to the States by the Constitution
and therefore rendering the States, to that degree,
subordinate to the Centre. The centralization
pattern is contradictory with the fundamental
values but, rather than adopting conventional
provisions of a federal constitution, the legislative
system is more concerned with country unity. All
these provisions of the constitution are therefore
justified as they offer clarification and eradicate the
confusion between the powers of the centre and
state. Unless this theory of legislative supremacy
were to be removed, there would be a risk of two
similarly dominant pieces of government giving
rise to a dispute, agitation, confrontation, and
confusion as a result of competing legislation.
These provisions guarantee that there is an
overarching regulatory framework and that there is
continuity in the basic laws.
  The Election Commission of India (ECI) is an autonomous and
permanent constitutional bodyresponsible for organizing free and
fair elections in the Union and States of India.
 It was established on 25th January 1950.
 Today, the ECI has become the backbone of true democracy in India.

What is Election Commission of India?

 Articles 324 to 329 contained in Part XV of the Constitution of
India, 1950 (COI) contains provision in relation to ECI.
 The body administers elections to the Lok Sabha, Rajya Sabha, and
State Legislative Assemblies in India, and the offices of the
President and Vice President in the country.
 It is not concerned with the elections to panchayats and
municipalities in the states.
o For this, the Constitution of India provides for a separate State
Election Commission.

What are Constitutional Provisions in Relation to

ECI?
 Article 324: Superintendence, control and direction of national and
state-level elections are to be directly handled by the ECI
 Article 325: Inclusion and exclusion of names in electoral rolls are
based on Indian Citizenship. No citizen of India above the voting age
should be excluded from the rolls or included in a special electoral roll
based on any criteria such as race, caste, religion or sex.
 Article 326: Defines universal adult franchise as the basis for
elections to all levels of the elected government.
 Article 327: Defines responsibilities of the ECI and Parliament for the
conduct of national elections.
 Article 328: Defines the role and responsibilities of the state
legislatures with respect to state-level elections.
 Article 329: Prohibits court interference in matters related to elections
unless specifically asked to provide their views.

Powers of Election Commission of India

In details, these powers of the Election Commission of India are:

 Determining the Electoral Constituencies’ territorial areas throughout the country

on the basis of the Delimitation Commission Act of Parliament.
 Preparing and periodically revising electoral rolls and registering all eligible
voters.
 Notifying the schedules and dates of elections and scrutinising nomination
papers.
 Granting recognition to the various political parties and allocating them election
symbols.
 Acting as a court to settle disputes concerning the granting of recognition to
political parties and allocating election symbols to the parties.
 Appointing officers for inquiring into disputes concerning electoral arrangements.
 Determining the code of conduct to be followed by the political parties and
candidates during elections.
 Preparing a program for publicising the policies of all the political parties on
various media like TV and radio during elections.
 Advising the President on matters concerning the disqualification of MPs.
 Advising the Governor on matters concerning the disqualification of MLAs.
 Cancelling polls in case of booth capturing, rigging, violence and other
irregularities.
 Requesting the Governor or the President for requisitioning the staff required for
conducting elections.
 Supervising the machinery of elections throughout the country for ensuring the
conduct of free and fair elections.
 Advising the President on whether elections can be held in a state that is under
the President’s rule, in order to extend the period of emergency after 1 year.
 Registering political parties and granting them the status of national or state
parties (depending on their poll performance).

The Commission is aided in its function by deputy election commissioners.

The deputy ECs are taken from the civil services and they are appointed by
the Commission. They have a fixed tenure. They are aided by the
secretaries, deputy secretaries, joint secretaries and under-secretaries
posted in the commission’s secretariat.

Functions of Election Commission

1. To direct and control the entire process of conducting elections to Parliament and
Legislature of every State and to the offices of President and Vice-President of
India.
2. To decide the election schedules for the conduct of periodic and timely elections,
whether general or bye-elections
 3. To decide on the location of polling stations, assignment of voters to the polling
stations, location of counting centres, arrangements to be made in and around
polling stations and counting centres and all allied matters
4. To prepare electoral roll and issues Electronic Photo Identity Card (EPIC)
5. To grant recognition to political parties & allot election symbols to them along
with settling disputes related to it
6. To sets limits of campaign expenditure per candidate to all the political parties,
and also monitors the same
7. To advise in the matter of post-election disqualification of sitting members of
Parliament and State Legislatures.
8. To issue the Model Code of Conduct in the election for political parties and
candidates so that no one indulges in unfair practice or there is no arbitrary
abuse of powers by those in power.

Importance of Election Commission for India

 The Election Commission has been successfully conducting national as well as
state elections since 1952. Now, it plays an active role to ensure the greater
participation of people.
 The Commission has brought discipline among the political parties with a threat
of derecognizing if the parties failed in maintaining inner-party democracy.
 It supports the values preserved in the Constitution viz, equality, equity,
impartiality, independence; and rule of law in superintendence, direction, and
control over the electoral governance.
 ECI helps in conducting elections with the highest standard of credibility,
fairness, transparency, integrity, accountability, autonomy and professionalism.
 In the electoral process, it ensures the participation of all eligible citizens in an
inclusive voter-centric and voter-friendly environment.
 The Election Commission of India engages with political parties and all
stakeholders in the interest of the electoral process.
 It creates awareness about the electoral process and electoral governance
amongst stakeholders (political parties, voters, election functionaries, candidates
and people at large) to enhance and strengthen confidence and trust in the
electoral system of this country.

Lok Sabha Speaker & Deputy Speaker – Constitutional Provisions

Constitutional Provisions – Offices of Speaker and Deputy Speaker

Article Provides to choose two members of the House to be respectively Speaker and
93 Deputy Speaker when these two offices fall vacant.

Article Vacation, Resignation and Removal provisions for the offices of Speaker and
94 Deputy Speaker

Article Power of the Deputy Speaker or other person to perform the duties of the offices
95 of, or to act as, the Speaker

Article The Speaker or the Deputy Speaker not to preside while a resolution for his/her
96 removal from office is under consideration

Significance of the Office of Speaker of Lok Sabha

 The Speaker represents the full authority of the House, whereas the members of
Parliament represent the individual constituencies.
 The Office of the Speaker symbolises the dignity, honour and power of the House
over which he/she is presiding.
 The Speaker is considered as the true guardian of the traditions of parliamentary
democracy.
 The activities/actions of the Speaker are under scrutiny in the House, and he/she
can’t overlook any aspect of parliamentary life.
 The Office of the Speaker has been given a very high position (Seventh Rank) in
the Warrant of Precedence in India, positioned along with the Chief Justice of
India and next only to the President, the Vice-President and the Prime Minister.
He/she has a higher rank than all cabinet ministers.