KAMKUS COLLEGE OF LAW

B.A.LL.B.VI THSEM
CODE (BL-6003)
CONSTITUTIONAL LAW OF INDIA-II
Unit –I
Detailed Questions Answers
Q.1. Explain the Positions and various Powers are vested in President of
India ?
Or
Q. 1. Describe the election, qualifications, term of office and removal of the
President of India.
Ans. President of India
Article 52 of our constitution provides for a President of India. Article53(1) says that the
executive power of the union shall be vested in the President and shall be exercised by him either
by directly or through officers subordinate to him in the constitution .Article 53(2) declares the
President as the supreme commander of the defence forces and exercise of his power would be
regulated by law. However, this article states that any function can be transferred to the President
and permits the Parliament to confer any function to authorities other than the president.
This article makes the following things clear-
• The President can exercise the executive power of the union himself;
• He can exercise these powers through officers subordinate to him;
• Either he or his officers subordinate to him would exercise these powers in accordance with the
constitution;
• His function can be increased by Parliament, and that the function can be conferred on
authorities other than President.
Election of the President
The election of the President is indirect. Article 54 of the constitution says that the President
shall be elected by members of an electoral college consists of the elected members of both
house of the Parliament and the elected members of the legislative Assembles of the states.
Article 55 explains the manner of the election of the President. The election of the President shall

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be held in accordance with the system of proportional representation by means of single
transferable vote and the voting at such election shall be by secret ballot.
Value of votes of elected members of the state legislative assembles and parliament is decided
as per provisions of article 55(2) of the Constitution of India. Presidential election of India
involves proportional representation from respective states. The number of votes assigned to a
particular vote from a state assembly is decided as follows.
Total Number of elected member
Total Population of the State X 1
1ooo
The value of votes of each MLA varied from state to state.(for example the President election of
2007 in Andhra Pradesh each MLA had 148 votes ,in Bihar ,each MLA had 173 votes ,and so
on). The number of votes each elected Member of Parliament is entitled to the Presidential
election is arrived at by dividing the total number of votes given to all the elected members of the
state assemblies by the total number of elected members of both house of parliament.
Value of vote of each elected Members of parliament = Total value of votes of all the
elected MLAs of 28 state Legislative Assemblies

Total number of elected MPs

The election is held in accordance with the system of proportional representation by means
of single transferrable vote. The voting at the election is by secret ballet. In order to win a
Presidential election a candidate has to secure a minimum fixed quota of votes which is
calculated in accordance with Droop Method that is:
Total number of valid votes polled + 1
Total number of seats to be filled + 1
Oath by the President
According to Article 60 before entering upon his office, the President has to take an Oath or an
affirmation in the presence of the Chief Justice of the India, or in his absence, the senior most
Judge of the Supreme Court available, ‘to preserve, protect and defend the Constitution and the
law and to devote himself to the service and well-being of the people of India’

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 Term of Office
According to Article 56 the term of office of the President is five years with a provision for
re-election. He can resign before the expiry of his usual term, resignation to be addressed to the
Vice-President or can be removed by impeachment for violation of constitution in the manner as
in Article 61(1).
Qualification
Article 58 prescribes the qualifications for the election as President. These are:
• be a citizen of India.
• have completed the age of thirty five years.
• be qualified for election as a member of the house of the Parliament; and,
• must not hold any office of profit under the government of India or state.
Government or other authority subject to the control of any of the said But sitting President or
Vice-President or the Governor of any state or a minister either of union or any state is not
disqualified for election as president.
Emoluments and allowances of the President
The President shall be entailed without payment of rent to use of his official residence and shall
be also entailed to such emoluments, allowances and privileges as may be determined by
Parliament by law. The emoluments and allowances of President shall not be diminished during
his term of office.
Powers of the President

1. Executive Powers
The exercise of the executive power of the Union is the function of the President. A primary
function of the executive is to administer and execute the laws enacted by the Parliament and

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maintain law and order. However executive function cannot be limited to this and a modern state
is not expected to confine itself to a mere collection of taxes, maintaining law and order and
defending the country from external aggression. The executive operates over a large area and
discharges varied and complex functions.
2. Judicial Powers
The central executive is empowered to appoint judges of the Supreme Court and the High Court
under Article 124(2) and 217(1) respectively. The issue of the disqualification of the member of
the parliament is also decided formally by the President. The President of India is also provided
with some judicial powers which can be exercised by him by the authority given to him under
Article 72 of the Constitution. Under article 72 the President has the power to give reprieves,
pardons, respites, remission and commutation of sentence.
Reprieve means that the sentence of a person can be suspended for a temporary period of time. In
pardons, the person files a mercy petition to the President and it is usually applied for in cases
where the Supreme Court upholds the Capital punishment. If the President grants the pardon,
then the person is relieved of any sentence and becomes free from any punishment. Under
Respite, the person who is held guilty is awarded less punishment while under remission his the
amount of sentence awarded to a person is reduced after it has been awarded by the Court. In
Commutation, the punishment of a person is changed from one to another. For. e.g., if the
President approves the commutation of sentence, then a person who has been awarded Capital
Punishment may instead be awarded life imprisonment.

3. Legislative Powers
Legislative power of the central executive can be divided into the following heads: Participation
of the executive in the legislative process: The President along with the council of ministers is
both members of the parliament and participates intimately in the legislative making process.
The President has the power to convene and prorogue to dissolve Lok Sabha. The President has
the power to pass a bill and his assent is required for the transforming a bill passed by the two
houses into an act. Article 123 empowers the President to promulgate ordinance as the
circumstances which appear to require when both houses of the parliament are not in session He

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is satisfied that the circumstances exist which render it necessary for him to take immediate
action.
4. Diplomatic powers
International treaties and agreement are negotiated and concluded on behalf of the president
subject to the approval of parliament He represents India at international forums and sends and
receives diplomats.
• Military powers He is the supreme commander of defense forces and appoints the chiefs
of defense forces can declare war or conclude peace subject to approval of parliament.
• Emergency powers President can declare National Emergency under Article 352 He can
declare president's rule in states under Article 356 can declare Financial Emergency
under Article 360.
Under the Provisions of Article 352, 356 and 360 the president has the power to declare
emergency situation either in the whole territory of India or in any State or part of it.
There are 3 types of Emergency which can be declared by the president:
National Emergency (Article 352)
State Emergency (Article 356)
Financial Emergency (Article 360)
During Emergency, any rights including Fundamental rights except for Article 20 and 21 can be
suspended by the President and the Parliament can also pass a resolution to impose President’s
rule in any State.
Also, all the Government Contracts made by the Union are made in the name of the President
and in the absence of this requirement being fulfilled, a Government contract cannot be regarded
as valid.

Q. 2. Explain the provisions of the Constitution which reflect the Compositions,

appointment and transfer the judges of Supreme Court and High Courts.

Ans. Judicial independence is the concept that the judiciary should be independent from the
other branches of government. In 1861 the Indian High Courts Act 1861 was enacted to create
high courts for various provinces and abolished supreme courts at Calcutta, Madras and Bombay
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and also the sadar adalats in presidency towns which had acted as the highest court in their
respective regions. These new high courts had the distinction of being the highest courts for all
cases till the creation of Federal Court of India under the Government of India Act 1935. The
Federal Court had jurisdiction to solve disputes between provinces and federal states and hear
appeal against judgments of the high courts. The first CJI of India was H. J. Kania.
The Supreme Court of India came into being on 26 January 1950. It replaced both the Federal
Court of India and the Judicial Committee of the Privy Council which were then at the apex of
the Indian court system.
Composition
Parliament increased the number of judges (including CJI) from the original 8 in 1950, 18 in
1978, 26 in 1986, 31 in 2008 and 34 in 2019 (current strength) . As the number of the judges has
increased, they sit in smaller benches of two or three (referred to as a division bench)—coming
together in larger benches of five or more (referred to as a constitution bench) when required to
settle fundamental questions of law. A bench may refer a case before it to a larger bench, should
the need arise.
Eligibility of a judge of the Supreme Court Art 124 (3)
Art 124(3) of Indian Constitution deals with a person shall not be qualified for appointment
as a Judge of the Supreme Court unless he is a citizen of India and –
(a) has been for at least five years a Judge of a High Court or of two or more such Courts in
succession; or
(b) has been for at least ten years an advocate of a High Court or of two or more such Courts in
succession; or
(c) is, in the opinion of the President, a distinguished jurist.
Explanation I: In this clause “High Court” means a High Court which exercises, or which at any
time before the commencement of this Constitution exercised, jurisdiction in any part of the
territory of India.
Explanation II In computing for the purpose of this clause the period during which a a person
has been an advocate, any period during which a person has held judicial office not inferior to
that of a district judge after he became an advocate shall be included.

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What does the Constitution say regarding the appointments of judges?
Judges of the Supreme Court and High Courts are appointed by the President under Articles
124(2) and 217 of the Constitution. The President is required to hold consultations with such of
the judges of the Supreme Court and of the High Court’s as he may deem necessary.
Constitutional Provisions
• Article 124(2) says “Every Judge of the Supreme Court shall be appointed by the President
by warrant under his hand and seal after consultation with such of the Judges of the Supreme
Court and of the High Courts in the States as the President may deem necessary for the
purpose and shall hold office until he attains the age of sixty-five years:
Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief
Justice of India shall always be consulted:’’
• Article 217 “Every Judge of a High Court shall be appointed by the President by warrant
under his hand and seal after consultation with the Chief Justice of India, the Governor of the
State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief
Justice of the High Court.”
Judicial Interpretation
What is the collegium system?
It is the system of appointment and transfer of judges that has evolved through judgments of the
Supreme Court, and not by an Act of Parliament or by a provision of the Constitution. The
Supreme Court collegium is headed by the Chief Justice of India and comprises four other
seniormost judges of the court. A High Court collegium is led by its Chief Justice and four other
seniormost judges of that court. Names recommended for appointment by a High Court
collegium reaches the government only after approval by the CJI and the Supreme Court
collegium. Judges of the higher judiciary are appointed only through the collegium system —
and the government has a role only after names have been decided by the collegium.
How did the collegium system evolve when the Constitution is silent on it?
The collegium system has its genesis in a series of judgments called “Judges Cases”. The
collegium came into being through interpretations of pertinent constitutional provisions by the
Supreme Court in the Judges Cases.
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 1. First Judges Case: In S P Gupta Vs Union of India, 1981, the Supreme Court by a majority
judgment held that the concept of primacy of the Chief Justice of India was not really to be found
in the Constitution. It held that the proposal for appointment to a High Court can emanate from
any of the constitutional functionaries mentioned in Article 217 and not necessarily from the
Chief Justice of the High Court. The Constitution Bench also held that the term “consultation”
used in Articles 124 and 217 was not “concurrence”- meaning that although the President will
consult these functionaries, his decision was not bound to be in concurrence with all of them.
2. Second Judges Case: In The Supreme Court Advocates-on-Record Association Vs Union
of India, 1993,a nine-judge Constitution Bench overruled the decision in S P Gupta and devised
a specific procedure called ‘Collegium System’ for the appointment and transfer of judges in the
higher judiciary. The court must act in “protecting the integrity and guarding the independence
of the judiciary”, the majority verdict accorded primacy to the CJI in matters of appointment and
transfers while also ruling that the term “consultation” would not diminish the primary role of
the CJI in judicial appointments.
3. Third Judges Case: In 1998, President K R Narayanan issued a Presidential Reference to the
Supreme Court over the meaning of the term “consultation” under Article 143 of the Constitution
(advisory jurisdiction). The question was whether “consultation” required consultation with a
number of judges in forming the CJI’s opinion, or whether the sole opinion of CJI could by itself
constitute a “consultation”. In response, the Supreme Court laid down 9 guidelines for the
functioning of the coram for appointments and transfers — this has come to be the present form
of the collegium, and has been prevalent ever since.
This opinion laid down that the recommendation should be made by the CJI and his four senior
most colleagues, instead of two. It also held that Supreme Court judges who hailed from the
High Court, for which the proposed name came, should also be consulted. It was also held that
even if two judges gave an adverse opinion, the CJI should not send the recommendation to the
government.
Why has the collegium system been criticized?
Critics argue that the system is non-transparent, since it does not involve any official mechanism
or secretariat. It is seen as a closed-door affair with no prescribed norms regarding eligibility

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criteria or even the selection procedure. There is no public knowledge of how and when a
collegium meets, and how it takes its decisions. Lawyers too are usually in the dark on whether
their names have been considered for elevation as a judge.
What efforts have been made to address these concerns?
The NDA government has tried twice, unsuccessfully both times, to replace the collegium
system with a National Judicial Appointments Commission (NJAC). The BJP-led government of
1998-2003 had appointed the Justice M N Venkatachaliah Commission to opine whether there
was need to change the collegium system. The Commission favoured change, and prescribed an
NJAC consisting of the CJI and two senior most judges, the Law Minister, and an eminent
person from the public, to be chosen by the President in consultation with the CJI. The NDA 2
regime had NJAC as one of its priorities, and the constitutional amendment and NJAC Act were
cleared swiftly.
What happened to the NJAC then?
A five-judge Constitution Bench declared as unconstitutional the constitutional amendment that
sought to create the NJAC, which had envisioned a significant role for the executive in
appointing judges in the higher judiciary. The Bench sealed the fate of the proposed system with
a 4:1 majority verdict that held that judges’ appointments shall continue to be made by the
collegium system in which the CJI will have “the last word”. “There is no question of accepting
an alternative procedure, which does not ensure primacy of the judiciary in the matter of
selection and appointment of judges to the higher judiciary,” said the majority opinion.
How are appointments being made now?
The collegium has been making recommendations for appointments and transfer of judges.
However, the 2015 ruling, in the end, had also paved the way for a new Memorandum of
Procedure to guide future appointments so that concerns regarding lack of eligibility criteria
and transparency could be redressed. The Bench had asked the government to draft a new MoP
after consultation with the CJI. But more than a year later, the MoP is still to be finalised owing
to lack of consensus on several fronts between the judiciary and the government. Since the new
MoP is not in place, the government has been slow in clearing the appointments, which has

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also become a matter of judicial decision after a clutch of petitions were filed in the Supreme
Court against the delay in making appointments.
Q. 3. Explain the various Jurisdiction of Supreme Court?

Ans. Jurisdiction of the Supreme Court of India

Introduction
In any democracy, the separation of power is considered to be the most important ingredient to
prevent the concentration of power. India is not an exception to it. Along with Legislature and
Executive, the judiciary forms the 3rd most important organ of the separation of power to protect
democracy. The term ‘Judiciary’ refers to designate those officers of government whose function
is to apply the existing law to individual cases by keeping in view standards of ‘fairness’ and
‘reasonableness’ while applying the laws to individual cases. Lord Bryce says that there is “no
better test of the excellence of a government than the efficiency of its judicial system”. The
judiciary has been rightly called, “The shield of innocence and safe guardian of civil right”.

High Courts and Supreme Court are given the status of Constitutional Courts by the Constitution
of India. Those Courts are also known as the ‘Courts of Records.’ These Courts act as the
Custodians of the Indian Constitution and these have the supreme power to protect the
Fundamental Rights of the citizens guaranteed by Part III of the Indian Constitution.

By the legal meaning of the word ‘Jurisdiction’, we understand that the boundaries set by the
Constitution or any statutes, within which the Courts can exercise its judicial power. The
jurisdictions may be subject matter jurisdictions, territorial jurisdictions or pecuniary
jurisdictions, etc.

Jurisdiction refers to the inherent authority of a court to hear a case and to declare a judgment.

The jurisdiction of the Supreme Court can broadly be categorized as –

The Supreme Court of India is the highest Judicial Court within the territory of India. It is the
highest appellate and Constitutional Court in India. More importantly, it works as the ‘Sentinel
on the qui vive’ because; it has the absolute power to protect the ‘Supremacy of Fundamental
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Rights’ of the citizens guaranteed by Part III of the Constitution of India. It consists of the Chief
Justice of India and a maximum of 33 judges, it has also the powers in the form of original,
appellate, and advisory jurisdictions. Articles 124 to 147 of the Constitution lay down the
composition and jurisdiction of the Supreme Court.

Being the final court of appeal of the country, it takes up appeals against verdicts of the High
Courts of various States of the Union and other courts and tribunals. It safeguards the
Fundamental Rights of citizens and settles disputes between various government authorities as
well as the State Governments vs. another State Government or Union Government vs. State
Governments within the country.

1. Original Jurisdiction

Article 131 of Indian Constitution provides for original jurisdiction that deals with disputes (i)
between the Government of India and one or more States,
(ii) between the Government of India and any State or States on the one side and one or more
other States on the other, or
(iii) between two or more states.

2. Appellate Jurisdiction

The Supreme Court is the highest court of appeal in all Civil, Criminal and Constitutional cases.
Moreover, under “special leave to Appeal” provided in Article 136; the Supreme Court has
discretionary powers to take cases from High Courts. Article 134 of the Constitution for the first
time provides for an appeal to the Supreme Court from any judgment, final order or sentence in a
criminal proceeding of a High Court, as of right, in two specified classes of cases—
(a) where the High Court has on an appeal reversed an order of acquittal of an accused person
and sentenced him to death;
(b) where the High Court has withdrawn for trial before itself any case from any Court
subordinate to its authority and has in such trial convicted the accused and sentenced him to
death. In these two classes of cases relating to a sentence of death by the High Court, appeal lies
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to the Supreme Court as of right. Moreover, an appeal may lie to the Supreme Court in any
criminal case if the High Court certifies that the case is a fit one for appeal to the Supreme Court.

3. Advisory Jurisdiction

Article 143 (Power of President to consult Supreme Court) the advisory jurisdiction of the
Supreme Court It provides that if at any time it appears to the President that a question of law or
fact has arisen, or is likely to arise, which is of such a nature and of such public importance that
it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to
that Court for consideration and the Court may, after such hearing as it thinks fit, report to the
President, its opinion thereon.
• In Re Delhi Laws Act case was the first one in which the question of delegation of legislative
power was considered by the Supreme Court. It is worth nothing that each of the seven
judges who participated in the decision gave separate opinion.
• In Re Kerala Educational Bill Reference was made in a politically heated situation. The
Central Government made a skillful use of the provision of seeking advisory opinion of
Supreme Court.
• In Re Berubarireference, the highest Court of the land was called upon to advice the
President as to how an agreement with a foreign country which involved cession of territory,
could be implemented while dwelling over the matter, the Court considered the scope and
extent of Article 3 of the Constitution.
• In The Keshav Singh Reference While evaluating the opinion of the Supreme Court21, a
reference to the decision of the Allahabad High Court on the habeas corpus petition of
Keshav Singh, will be fully relevant after its final hearing in 1965, dismissing the petition,
the Allahabad High Court ruled that the U.P. Assembly had power to commit a person for its
contempt like the House of Commons in England. It held that the detention of the petition did
not violate the provisions of Articles 22 (2) of the Constitution.
Q.4.Explain the provisions of the Constitution related to the Council of
Ministers.

Ans. The Council of Ministers

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The Indian Constitution has borrowed the British Parliamentary form of Government in which
the real executive of the Indian Union is the Council of Ministers headed by the Prime Minister,
which actually exercises the executive authority, theoretically vested by the Constitution, in the
President.

Article-74(1) provided that “there shall be a Council of Ministers with the Prime Minister as its
head to aid and advise the President in the exercise of his functions.” After the 42nd
Amendment, 1976, the language of Article-74(1) provides that “There shall be a Council of
Ministers with the Prime Minister as its head to aid and advise the President who shall, in
exercise of his functions act in accordance with such advice.” After the 44th Amendment, 1978 a
proviso has been brought in clause (1) of Article-74 which provides that “Provided that the
President may require the Council of Ministers to reconsider such advice,, either generally or
otherwise, and the President shall act in accordance with the advice tendered after such
reconsideration.” This proviso has been considered by the experts of the constitutional law as an
excellent example of constitutional jurisprudence. According to Article-75(1), the Prime Minister
shall be appointed by the President and other Ministers shall be appointed by the President on the
advice of the Prime Minister.
Maximum Number of Ministers - This amendment has added two new clauses–Clauses (1A)
and (1B) of Article-75 of the Constitution. The new clause-1A provides that the total number of
ministers, including the Prime Minister, in the Council of Ministers shall not exceed fifteen per
cent of the total number of members of the House of the People.
The Council of Ministers consists of three categories of Ministers i.e. Ministers of Cabinet rank,
Ministers of State and Deputy Ministers. The Cabinet Ministers are the heads of their
departments. All Ministers are not members of the Cabinet. They attend the meetings of the
Cabinet when specially invited by the Prime Minister and when the matter concerning their
department is discussed by the Cabinet. The salaries and allowances of Ministers shall be such as
Parliament may from time to time by law determine. The Ministers of State hold independent
charge of their department. The Deputy Ministers have no separate charge of a department. Their
task is to assist the Ministers with whom they are attached.

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The Cabinet is the smaller body of the Council of Ministers. Indian Constitution nowhere
mentions the word ‘Cabinet’. The Cabinet is thus an extra-constitutional body based upon
convention. The Cabinet is the supreme policy making body. Senior most Ministers are the
members of the Cabinet. The Council of Ministers shall be collectively responsible to the House
of the People.
A non-member can become a Minister Article-75(5) provides that a Minister who for a period
of six consecutive months is not a member of either House of Parliament shall cease to be a
Minister at the expiration of that period. Thus, there is no legal bar that a Minister must be a
Member of Parliament. An individual may be appointed a Minister but he must become Member
of Parliament within the period of six months. If he is not elected within the time mentioned
above he is bound to resign from the Council of Ministers.
Before a Minister enters his office the President shall administer to him the oath of office and of
secrecy [Article-75(4)]. The Minister shall hold office during the pleasure of the President
[Article-75(2)].
The Constitution of India thus makes it obligatory for the President to appoint a Council of
Ministers and he must exercise his functions with the aid and advice of the Council of Ministers.
In S.P. Anand v. H.D. Deve Gowda the Supreme Court has held that a person who is not a
member of either House of Parliament can be appointed by Prime Minister for six months. In this
case the petitioner had challenged the appointment of Mr. Deve Gowda as the Prime Minister of
India in 1996 on the ground that at the time of appointment he was not a member of either House
of Parliament. On plain reading of Article-75(5) it is clear that the Constitution makers desired to
permit a person who was not a member of either House of Parliament to be appointed a Minister
for a period of six consecutive months and if during the said period he is not elected to either
House of Parliament he will cease to be a Minister.
Non-member cannot be re-appointed without being elected- In S.R. Chauhan v. State of
Punjab, the Supreme Court has held that a non-member who fails to get elected during the
period of six consecutive months after he is appointed as a Minister cannot be reappointed as
Minister. The case is based on Article-164(4) which is in similar terms as Article-75(5). In that
case Mr. Tej Prakash Singh who was not a member of Legislature was appointed as a Minister

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for six months. He failed to get himself elected to the Legislature and resigned. Mr. Tej Prakash
was again appointed as a Minister. The Supreme Court held that the appointment for a second
term without being elected was violative of Article-164(4) of the Constitution and invalid.
Article-164(4) is an exception to the normal rule and restricted to a short period of six
consecutive months. The clear mandate of Article-164(4) cannot be allowed to be frustrated by
giving a gap of few days and reappoint him as a Minister without securing the confidence of the
electorate in the meantime.
Appointment of the Prime Minister - The Prime Minister is head of the Council of Ministers
[Article-74(1)]. Article-75(1) says that “the Prime Minister shall be appointed by the President
[Article-75(1)] and the other Ministers shall be appointed by the President on the advice of the
Prime Minister.” Clause (3) of Article-75 says that “Council of Ministers shall be collectively
responsible to the House of the People.” The paramount consideration for the President in
appointment of the Prime Minister is to see that the person chosen by him commands the support
of the majority in the House of the People.
But in case of multiparty system, if none is in a position to gain required majority and a coalition
Government is to be formed, the President can exercise discretion and select the leader of any
party who, in his discretion, can form a ministry which can discharge the collective responsibility
in a proportionately more effective way. However, even in such a situation the President’s
discretion should be guided by certain conventions. First, in case of the defeat of the
Government in the House of the People the President should invite the leader of the opposition to
explore the possibility of forming the government. Secondly, he should invite the largest single
party in the House of the People to form the Government. Thirdly, if two or more parties form a
coalition before the election and secure the majority in the House of the People he should invite
the leader of the coalition to form the Government.
Principle of collective responsibility - The basic principle of Parliamentary form of
Government is the principle of collective responsibility. Article-75(3) provides that the Council
of Ministers shall be collectively responsible to the House of the People. The principle of
collective responsibility means that the Council of Ministers is as a body responsible to the
House of the People for the general conduct of affairs of the Government. The Council of

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Ministers work as a team and all decisions taken by the cabinet are the joint decisions of all its
members. No matter whatever be their personal differences of opinion within the Cabinet, but
once a decision has been taken by it, it is the duty of each and every Minister to stand by it and
support it both in the Legislature and outside.
Minister’s individual responsibility- Along with the principle of collective responsibility the
principle of individual responsibility of each minister to the Parliament also works. Every
Minister is responsible for the acts of the officers of his department. He has to answer questions
regarding the affairs of his department in the Parliament. He cannot throw the responsibility of
his department either on his officials or another Minister.
Constitutional duties of the Prime Minister - Article-78 provides that it shall be the duty of the
Prime Minister, (1) to communicate to the President all the decisions of the Council of Ministers
relating to the administration of the affairs of the Union and proposals for legislation, (2) to
furnish such information relating to administration of the affairs of the Union and proposals for
legislation as the President may call for, and (3) if the President so requires to submit for the
consideration of the Council of Ministers any matter on which a decision has been taken by a
Minister but which has not been considered by the Cabinet.
Thus, it is clear that the Prime Minister communicates the decisions and not merely renders the
advice to the President. The President in fact is bound to accept the decision taken by the
Cabinet. The decision is taken by the Cabinet whose head is the Prime Minister and it is binding
on the President because it is the Prime Minister and his Cabinet which is responsible to the
House of People. There is no provision in the Constitution which makes the President
responsible to the Parliament.
Dismissal of a Minister - According to Article-75(2) a Minister holds office during the pleasure
of the President. But the President is bound to exercise his pleasure in accordance with the
advice given by the Prime Minister. It is true that the President appoints the Prime Minister but
other Ministers are appointed by him on the advice of the Prime Minister. It is the Prime Minister
who selects the man of his team with whom he has to work. Moreover, for the effective
functioning of the principle of the collective responsibility it is necessary that he should have
unfettered discretion to select and to drop any Minister. If he thinks that the presence of any

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Minister is detrimental to the efficiency, integrity or policy of the Government he may drop him
from the Cabinet or advise the President to dismiss him from the Cabinet. Dr. B.R. Ambedkar
had said in the Constituent Assembly that no person shall be retained as member of the Cabinet,
if the Prime Minister says that he shall be dismissed. It is only when members of the Cabinet, if
both in the matter of their appointment as well as in the matter of the dismissal, are placed under
the Prime Minister that it should be possible to realize the idea of collective responsibility. The
Prime Minister is really the keystone of the arch of the Cabinet and until we create that office
and endow that office with statutory authority to nominate and dismiss ministers there can be no
collective responsibility.

Q.5. Write down the essential conditions for the appointment of the Prime
Minister.

Ans. The Prime Minister is the real executive or the de facto executive. He is the head of the
Government. The Prime Minister of India has significant powers and control in this position.
According to the constitution of India, the position of the Prime Minister holds control over the
decisions and activities more than the President. The Prime Minister is also the head of the
advisory body of the council minister serving the President. The Prime Minister is appointed by
the President, and the advises the President to choose the council minister for variable segments
and departments of the political system. In the constitution of India, the specific articles and
amendments mention the appointment process, eligibility, and powers of the Prime minister.

How the Prime Minister of India is appointed?

Article 75 states that the PM is to be appointed by the President. The President has to appoint the
leader of the majority party in the Lok Sabha as the PM. Constitutionally, the PM can be a
member of any of the two houses.
What are the powers and roles of the PM?
The following are broadly the roles of the PM

17
He is the head of the Government.
He chooses his own Cabinet, but they are appointed by the President.
He is the leader of the Council of Ministers (CoM). If the PM resigns or dies, the other ministers
cannot function and the cabinet is dissolved.
He is the link Between President and the Cabinet. He has to communicate the decisions if the
CoM relating to administration of affairs of the union and proposals for legislation to the
President.
He can recommend to the President about when the house has to be prorogued or dissolved. As a
chief spokesman he makes announcement of principal government policies and answers
questions on then

He is the chairman of various commissions such as-

Planning commission
National development council
National integration council
Inter-state councils
National water resources council.

He advises the President with regard to appointments of the following-

Comptroller and Auditor General (CAG)
Attorney General of India
Advocate General of India
Chairman and members of UPSC
Selection of Election Commissioners
Members and chairman of Finance Commission

Q. 6. Describe composition of the council of state and house of people. What are
the qualifications and disqualifications for the membership of parliament?

18
Discuss the provisions relating to duration, summoning, prorogation and
dissolution of the house.

Ans. Composition of Parliament

Parliament of India consists of three organs The President the Council of the States (the Rajya
Sabha) and the House of the People (the Lok Sabha). Though the President is not a member of
either House of Parliament yet he is an integral part of the Parliament and performs certain
functions relating to its proceedings. The President summons the two Houses of Parliament,
dissolves the House of People and gives assent to the Bills.
It is to be noted that although the Indian Constitution provides for the parliamentary form of
Government but unlike Britain, the Parliament is not supreme under the Indian Constitution. In
India the Constitution is supreme. In England, laws passed by the Parliament cannot be declared
unconstitutional while the Indian Constitution expressly vests the power of the judicial review in
the High Courts and the Supreme Court. The Indian Parliament is the creation of the Constitution
and derives all its powers from the Constitution. It is not a sovereign body.
The Rajya Sabha
The Maximum membership of the Rajya Sabha is fixed at 250 of whom 12 shall be nominated
by the President, and the remainder, i.e., 238 shall be representatives of States and the Union
Territories [Article-80(1)].
The representatives of States are elected by the members of the Legislative Assemblies in
accordance with the system of proportional representation by means of the single transferable
vote. The representatives from the Union Territories are chosen in such a manner as the
Parliament may by law determine. The allocation of seats to each State or Union Territory and
number of seats allocated to each in the Rajya Sabha are specified in the Fourth Schedule. The
12 nominated persons are chosen by the President from amongst the persons having special
knowledge or practical experience in literature, Science, Art and Social Service [Article-80(3)].
The nominated members do not participate in the election of the President of India. The manner
of the election of the members of the Rajya Sabha got its inspiration from the then Constitution
of the Ireland.
Chairman and Deputy Chairman of Rajya Sabha
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The Vice-President of India shall be the ex-officio Chairman of the Rajya Sabha. The Rajya
Sabha shall also elect a member of the House to be the Deputy Chairman [Article-89]. When the
office of Chairman is vacant or he is acting as the Vice-President or discharging the functions of
the President, his duties shall be performed by the Deputy Chairman. If the office of the Deputy
Chairman is also vacant the duties shall be performed by such member of the Rajya Sabha as the
President may appoint for that purpose. The Chairman presides over the sittings of the House and
in the absence the Deputy Chairman presides. If both are absent then such person as may be
determined by the rule of procedure of the Council and if no such person is present such other
person as may be determined by the Council shall act as Chairman [Article-91].
A Deputy Chairman shall vacate his office if he ceases to be a member of the Council. He may
resign his office by writing to the Chairman. He may also be removed from his office by a
resolution of the Council passed by a majority of all the then members [Article-90]. But such a
resolution can only be moved by giving at least fourteen days notice. While a resolution for the
removal of the Chairman (Vice-President) is under consideration, the Chairman, and while a
resolution for the removal of the Deputy Chairman, the Deputy Chairman shall not preside. The
Chairman shall have the right to speak and take part in the proceedings but shall not have right to
vote on such resolution [Article-92].
The Rajya Sabha is a permanent House. It is not subject to dissolution. Its members are elected
for a period of six years but one third of its members retire after every two years.
Utility of the Rajya Sabha
Although the Rajya Sabha is a permanent body yet in respect of powers it enjoys a different
position and role vis-a-vis the Lok Sabha. A money bill can only be introduced in the Lok Sabha.
The Rajya Sabha has limited powers and role in respect of a money bill. A vote of no confidence
cannot be passed against the Government by the Rajya Sabha. Even in case of ordinary bill if a
deadlock is created between the two Houses and the joint Session is held then by virtue ·of the
numerical strength the Lok Sabha will be able to pass that bill.
In a Federal Constitution another house is a necessity and it plays an important role in matters of
legislation and approval of executive action. The Rajya Sabha performs the roles like (1) It is
considered useful because senior-politicians and statesmen might get an easy access in it without

20
undergoing the ordeal of general election necessary for the members of Lok Sabha so that
experience and talent is not lost and they may discuss questions of public interest. (2) The Rajya
Sabha acts as a reviewing house over the Lok Sabha which being a popular House may be
tempted to act rather hastily keeping in view of public opinion. The existence of Rajya Sabha
stops the drastic changes in the law of the country made in the heat of momentary passion and
affords opportunity for its reconsideration by delaying its adoption for a limited period. (3) The
Rajya Sabha is a House where the States are represented keeping in view the federal principles in
the Constitution [Article 83 (a), (b)].
The Lok Sabha
The members of Lok Sabha are directly elected by the people. Under Article-331 the President
may nominate not more than two members of the Anglo-Indian community if in his opinion that
community is not adequately represented in the Lok Sabha. The representatives of the States are
elected directly by the people of the State on the basis of universal adult franchise. The
representatives of the Union Territories shall be elected in the manner prescribed by Parliament
by law. Every citizen of India, male or female who is not less than eighteenth years of age and is
not disqualified on the grounds of non-residence, unsoundness of mind, crime or corrupt or
illegal practice, is entitled to vote in the election of the Lok Sabha (Article-326).
Tenure of Lok Sabha
The Lok Sabha shall continue for five years from the commencement of its first session. The
President may, however, dissolve it even earlier. But while a proclamation of emergency is in
operation the life of the House of People may be extended by law of Parliament for one year at a
time. The Lok Sabha, whose life has been so extended, cannot continue beyond a period of six
months after the proclamation of emergency has ceased to operate [Article-83 (2)].
Qualifications for membership of Parliament
A person for being chosen as a member of the Parliament must be (a) a citizen of India, (b) not
less than thirty years of age in the case of the Council of the States and not less than twenty five
years of age in the case of the House of the People, (c) possessing such other qualifications as
may be prescribed by the Parliament, (d) take an oath before some person authorised in that

21
behalf by the Election Commission according to the format for the purpose in Third Schedule
[Article-84].
The Representation of Peoples Act, 1951, requires that a person’s name should be registered as a
voter in any Parliament Constituency.
The Constitution does not prescribe any educational qualification for membership of Parliament.
Disqualifications
A person is disqualified for being chosen and for continuing as a member of Parliament if he
suffers from the disqualifications [Article-102] - (a) If he holds any office of profit under Central
or the State Government other than an office declared by Parliament by law not to disqualify its
holder [Article-102 (1)]. (b) If he is of unsound mind and a competent court has declared him to
be so. (c) If he is an undercharged insolvent. (d) If he is not a citizen of India, or has voluntarily
acquired the citizenship of a foreign State, or under any acknowledgment of allegiance or
adherence to a foreign State. (e) If he is so disqualified under any law made by the Parliament.
For this purpose, Parliament has prescribed the necessary disqualifications in the Representation
of Peoples Act, 1951.
A Minister in the Union or the State Government is not considered as holding the office of profit
[Article-102 (2)].
Disqualifications under the Representation of Peoples Act are
(1) Corrupt practice at an election, (2) conviction for an offence resulting in imprisonment for
two or more years, (3) failure to file the account of the election expenses, (4) having an interest
or share in the contract for supply of goods or execution of any work or performance of a service
to the Government, (5) being a director or managing agent or holding an office of profit in a
Corporation in which the Government has 25% share. (6) dismissal from Government service for
corruption or disloyalty to the State.
Disqualification on ground of defection
The 52nd amendment has amended Articles 101, 102, 190 and 191 and added a new Schedule,
the Tenth Schedule to the Constitution which specifies the disqualifications on the ground of
defection. The amendment has added a new clause (2) to Articles 102 and 191 which provides
that a member shall be disqualified for being a member of either House of Parliament or of State

22
Legislature if he incurs the disqualifications specified in the Tenth Schedule, (1) if he voluntarily
gives up the membership of the political party on whose ticket he is elected to the house; or (2) if
he votes or abstains from voting in the house against any direction of the political party or by any
person or authority authorised by it in this behalf, without the prior permission, of such party and
unless it has been condoned by the party within 15 days from the date of voting or abstention; or
(3) if any nominated member joins any political party after the expiry of six months from the
date on which he takes his seat in the house.
Exceptions
The above disqualification will however not apply (1) if a member goes out as a result of a
merger of his original political party with another political party provided two third of the
members of the legislature party have agreed to such merger, or (2) if a member, after being
elected as the presiding officer gives up the membership of the party to which he belonged, or
does not rejoin that party or becomes a member of another party.
The Constitution 91st Amendment Act, 2003 has added a new clause to Articles- 75 and 164 of
the Constitution. Clause (I-B) provides that a member of the either House of Parliament
belonging to any political party who is disqualified for being member of that House on the
ground of defection under paragraph (2) of the Tenth Schedule shall also be disqualified to be
appointed as a minister under Clause (1) of Articles-75 and 164 until he is re-elected.
Consequently paragraph (3) of the Tenth Schedule under which the exemption from
disqualification was provided in case of split of one third members has been omitted.
If any question arises as to whether a member of a House has become subject to any of the
disqualifications under the Tenth Schedule, the question shall be referred to the Chairman or the
Speaker of such house, whose decision shall be final.
Decision on questions of disqualification of Members
Article 103 provides that if any question arises as to whether a member of either House of
Parliament has become subject to any disqualification mentioned under Article 102 the question
shall be referred to the President whose decision shall be final. However the President is required
to obtain the opinion of the Election Commission before giving any decision on matters of
qualifications and shall act according to it.

23
Speaker and Deputy Speaker of Lok Sabha
The Lok Sabha elects two of its members as Speaker and Deputy Speaker. When the Office of
Speaker is vacant the Deputy Speaker performs the duties of the office of the Speaker
[Article-93]. However, if the office of the Deputy Speaker is also vacant, the duties of the
Deputy Speaker shall be performed by such member of the House as the President may appoint
for the purpose [Article-95 (1)]. The Deputy Speaker also acts as the Speaker when the Speaker
is absent from any sitting of the house. If, however, he is also absent, such person as may be
determined by the rules of the house and if no such person is present such other person as may be
determined by the house shall act as Speaker [Article-95 (2)].
The Speaker and Deputy Speaker remain in office so long as they are members of the House. As
soon as they cease to be members of the House they have to vacate their offices. However, the
Speaker continues in his office even if the Lok Sabha is dissolved, till newly elected Lok Sabha
meets. The Speaker and Deputy Speaker may resign their offices or they may be removed from
their offices by a resolution of the House of the People passed by a majority of all the then
members of the House [Article-94 (a) (b) (c)].
Sessions of Parliament
The President shall from time to time summon each House of the Parliament to meet at such
time and place as he thinks fit. But the right of the President to summon the house is subject to
the condition that six months should not intervene between its last sitting in one session and the
date appointed for its sitting in the next session, [Article-85 (1)].
Prorogation
Prorogation merely ends a session. Prorogation does not end the life of the house. The house
meets again after prorogation. The power to prorogue the house is vested in the President
[Article-85 (9)]. A pending bill or business does not lapse on the prorogation of a session. It only
means that the house ceases to do a business at a particular time. It takes up pending business for
consideration when it meets after prorogation. An adjournment terminates a sitting of the house.
It is an act of the house and is exercised by the Presiding Officer at any time. An adjournment
does not affect the incomplete work before the house. The house may resume its business when
it meets again after the adjournment.

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Dissolution
Dissolution ends the very life of the house and after that the general elections must be held to
elect a new Lok Sabha. It is to be noted that it is the Lok Sabha which is subject to dissolution.
The Rajya Sabha is a permanent body and not subject to dissolution. Dissolution ends the very
life of the house while a prorogation ends a session.
Effect of dissolution on the business pending in the House
Where the Lok Sabha is dissolved (1) a bill pending in the Rajya Sabha but not passed by the
Lok Sabha does not lapse; (2) a bill pending in the Lok Sabha lapses; (3) a bill passed by the Lok
Sabha but pending in Rajya Sabha lapses unless it is saved by the intention of the President to
call a joint sitting of the two houses.
Q. 6. Examine the main Conventions and Principles on which the cabinet system
in India works. Also discuss the main functions of the cabinet.
Ans. The Cabinet of India works on certain conventions and principles as follows:
1. President Acts only as Constitutional Head
The principal characteristic of a parliamentary government is that the Head of the State exercises
only nominal powers. The administration of the country is run by head of the Government that is
the Prime Minister. But Article 75(3) of the Constitution further lays down that the Council of
Ministers is to be collectively responsibility to the House of the People. The provision of
responsibility to Parliament connotes that India has adopted parliamentary form of government.
The Prime Minister rules the country in the name of the President. According to Article 78 of the
constitution, all important decision is actually taken by the Council of Ministers and they are
communicated to the President by the Prime Minister. The President can only submit for the
consideration of the Council of Ministers any matter of national interest or any matter on which a
decision has been taken by a minister but not considered by the Council of ministers. According
to 42nd Amendment Article 74(1) the President will act according to the advice of the Council of
Ministers. The President of India does not attend the meeting of the Cabinet. It is the Prime
Minister who, being the keystone of the cabinet arch, presides over the Cabinet meetings.
2. Ministers Represent Majority Party of Parliament

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Every Minister has to be a member of the Union Parliament either at the time of his appointment
or within six months thereafter. Further the Ministers are collectively responsible to the
Parliament. They attend the sittings of the Parliamentary and take part in its deliberations. The
provision relating to parliamentary responsibility lays beyond doubt the foundation of a
parliamentary government. The Ministers as they are drawn from the majority party in the Lok
Sabha, naturally enjoy the confidence of that group. Sometime the Ministers are taken from the
minority group also. But as a team they command the confidence of the majority group.
3. Collective Responsibility of the Ministers to the Lok Sabha
Following the British convention, the Ministers in India are collectively and not severally
responsible to the Lok Shaba. Thus in Practice every Minister is equally responsible for any
lapse on the part of his colleague. A censure motion against one Minister amounts to
no-confidence against the whole Ministry in which case all the Ministers including the Prime
Minister have to go out of office. The members of the Parliament keep the Ministers under their
thumb in other ways also. They ask question and supplementary question which have to be
answered satisfactorily by the Minister concerned. By adopting adjournment motions the
President secures the obedience of the Ministers.
4. Principle of Secrecy
Every Minister before taking his office has to take an oath of secrecy. They are forbidden to
divulge the secrets of the department to the public. They are absolutely free to express divergent
views in the Cabinet meeting but once a decision is taken by a majority vote, each Minister has
to honour it. They have to appear before the Public and Parliament as one strong team. The
Cabinet Secretariat keeps a record of all Cabinet proceedings. The Employees of the Secretariat
are also warned not to leak out anything. Only the Prime Minister from time to time passes on
Cabinet decisions to the Press. If a Minister intends to lay bare his differences with the Prime
Minister before any House, he has to seek the consent of the Prime Minister.
5. Political Homogeneity
Usually all the Ministers belong to the same Political party, naturally they try to work out the
party’s elections manifesto. If the Prime Minister intends to form a coalition Ministry, then he
arrives at an understanding with the leaders of other groups to work a common programme. If

26
some Minister in a coalition Ministry does not agree to the majority decision, he relinquishes his
office.
6. Leadership of the Prime Minister
Whereas in the English constitution it is only a convention that king will endorse the
appointment of Ministers made by the Prime Minister, in Indian Constitution it is clearly written
that the President will appoint the Ministers on the advice of Prime Minister who will be the
Head of the Council of Ministers. Thus the Indian Constitution acknowledges the leadership of
his team of Ministers. The Prime Minister is the chief of Union Cabinet. He occupies the chair in
all the sitting of his Ministers. He advises the President regarding the allocation of portfolios to
the Ministers. He can also dismiss any member of his team for being defiant. If a Minister
refuses to resign, the Prime Minister tenders his own resignation and in the new Ministry he may
drop out that defaulting Minister. If a Minister loses the confidence of the Lok Sabha, the Prime
Minister stands by his side and tenders his own resignation.
Function of the Cabinet
1. Farming or Determining the Policies
The Union Cabinet formulates the general policy of country. It also shapes the foreign policy of
the Government. All the Important decisions are taken in the Cabinet meeting. For instance,
India’s policy of non-alignment and the resistance to colonialism, imperialism, racism and
military pacts has the support of all the Ministers. Policy-making is the most delicate and
difficult task for any Parliament. If the Parliament refuses to endorse them, the Ministry is forced
to resign or the Prime Minister having to get the verdict of the people in favour of his policies,
requests the President to dissolve the House and hold fresh election.
2. Running the Administration
The Cabinet forms the core of the government. It is the strongest administrative wing. Every
Minister holds one or more port-folios and feels responsible for the good administration of his
department. He promotes co-ordinates the functioning of various Minister. A matter which
concerns more than department is discussed in the special meeting of the Cabinet.
3. Preparation of the Bills and Piloting them in Parliament

27
 It is the function of the Ministers to prepare the draft of all important Bills and present it before
the Parliament for approval. These are called official Bills and are given priority and preference
over private Bills. A Bill moved by a private member had little chance of reaching the statute
book unless supported by the ruling party. Beside moving and piloting the Bills, the Cabinet
prepares a legislative programme of agenda for the new session of the Union legislature. The
Cabinet also prepares the text of President’s inaugural address to be delivered on the first day of
every year’s new session. The Minister also has to answer the question and supplementary
question asked by the member of both the houses. Since the Cabinet enjoys the backing of
majority group in the House, It does not have to face much difficulty in getting all government
measures approved by the House.
4. Budget
The Finance Minister with the co-operation of other Ministers Prepares a budget for the next
financial year It is thoroughly discussed in the Cabinet before being presented in a final shape in
the Lok Sabha. If the Parliament refuses to accept the Budget in its original form, the Cabinet is
constrained to resign.

Short Answers Questions Answers

Q. 1. Write the short note on Prime Minister of India.
Ans. Prime Minister
The Constitution of India provides for a parliamentary system of government and, therefore,
divides the executive into two parts: the nominal and real executive. The President of India is the
nominal executive and the Council of Ministers is the real executive which works under the
leadership of Prime Minister. Article 74, 75, and 78 of the constitution provide for provisions
relating to the council of Ministers and the Prime Minister.
Organization of the Council of Ministers
The Prime Minister shall be appointed by the President and other Ministers shall be appointed by
the President upon the advice of the Prime Minister. The Ministers hold office during the
pleasure of the President.
Powers and Functions Prime Minister Article 78

28
 Prescribe the duties’ of the Prime Minister. It says: 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 proposal for legislation.
Formation of the Council of the Ministers
The task of the formation of the ministry begins with the appointment of the Prime Minister by
the President. After this, the President appoints all other ministers on the advice of the Prime
Minister. He is free to determine the strength of his ministry and also select the ministers as per
his choice.
Allocation of Portfolios
It is an undisputed privilege of the P M to allocate portfolios to his ministers, which particular
department shall be entrusted to which minister is determined by him. The Prime Minister has
the power to shuffle his ministry.
Chairman of the Cabinet
The Prime Minister is the leader of the Cabinet. He presides over the meetings. He decides the
agenda of the meeting. In fact all matters are discussed in Cabinet with the approval and consent
of the Prime Minister. The Ministers have to accept his leadership. In all cases of disagreement
with him, they have to quit. The Prime Minister can demand resignation from any minister any
time.
Chief Link between the President and the Cabinet
The Prime Minister is the main channel of communication between the President and the
Cabinet. He communicates to the President all decisions arrived at in the Cabinet and puts before
the Cabinet the views of the President.
Chief Coordinator
The Prime Minister acts as the Chief Coordinator of the government. It is his responsibility to
co-ordinate the activities of all the departments and to secure co-operation amongst all
departments.
Leader of the Parliament

29
 The Prime Minister, as the leader of the Lok Sabha, is also the leader of the Parliament. In the
capacity as the leader of the majority party it is he who decides, in consultation with the Speaker,
the complete agenda of the house.
Determines the Foreign Policy
As the Powerful and real head of the government, the Prime Minster always plays a key role in
determining the foreign policy of the country and India’s relation with other countries. He is the
mainly responsible for country’s prestige and participation in international relations. He
represents the country in all important international conferences.
Role in Economic Planning
Prime Minister is the main spirit behind all economic planning. He plays a leading role in all
fiscal and developmental planning. Prime Minister is the ex-officio chairman of the Planning
Commission. He plays a leadership role at the national level and leads the country both times of
peace and war.
Q. 2. Define the original jurisdiction of the Supreme Court?

Ans. American Position

United States Constitution defines Original Jurisdiction thusly

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state
shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before
mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with
such exceptions, and under such regulations as the Congress shall make. United States
Constitution Article III,
Indian Position
In India, the Supreme Court has original, appellate and advisory jurisdiction. Its exclusive
original jurisdiction extends to all cases between the Government of India and the States of
India or between Government of India and states on one side and one or more states on other side
or cases between different states. Original jurisdiction is related to cases which are directly
brought to the Supreme Court. Cases which require the interpretation of the constitution or cases
relating to the denial of fundamental rights are heard in the Supreme Court. In case there is a
30
dispute between two or more states or between the union and the states, the Supreme Court
decides such cases. In addition, Article 32 of the Constitution of India grants original jurisdiction
to the Supreme Court on all cases involving the enforcement of fundamental rights of citizens. It
is empowered to issue directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari to enforce them.
The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the
High Court concerned under Article 132(1), 133(1) or 134 of the Constitution in respect of any
judgment, decree or final order of a High Court in both civil and criminal cases, involving
substantial questions of law as to the interpretation of the Indian Constitution. The Supreme
Court has special advisory jurisdiction in matters which may specifically be referred to it by the
President of India under Article 143 of the Indian Constitution.
Q. 3. Write down the procedure of appointment of the Attorney General of
India?
Ans. Attorney General of India
The Attorney General of India is the highest law officer of the country. He is responsible to assist
the Central government in its all legal matters. He is the Indian government's chief legal advisor,
and is primary lawyer in the Supreme Court of India. He can be said to be the lawyer from
government's side. He is appointed by the President of India under Article 76(1) of
the Constitution and holds office during the pleasure of the President. He must be a person
qualified to be appointed as a Judge of the Supreme Court (He must have been a judge of some
high court for five years or an advocate of some high court for ten years or an eminent jurist, in
the opinion of the President and must be a citizen of India.)
The Attorney General is necessary for giving advice to the Government of India in legal matters
referred to him. He also performs other legal duties assigned to him by the President. The
Attorney General has the right of audience in all Courts in India as well as the right to participate
in the proceedings of the Parliament, though not to vote. The Attorney General appears on behalf
of Government of Indiain all cases (including suits, appeals and other proceedings) in
the Supreme Court in which Government of India is concerned. He also represents the

31
Government of India in any reference made by the President to the Supreme Court under Article
143 of the Constitution.
Q. 4. Write a short note on Vice- President of India.

Ans. Vice- President of India

Vice-President of India Article 63 of the constitution provides for the office of the
Vice-President. Articles 64 and 89(1)provides that the Vice-President of India shall be ex-officio
Chairman of Rajya Sabha and shall not hold any other office of profit. In the constitutional
set-up, the holder of the office of Vice President is part of the executive but as Chairman of
Rajya Sabha, he is a part of Parliament.
Qualifications for the office of the Vice-President
• He must be a citizen of India.
• He must not be less than 35 years of age.
• He must possess all those qualifications which can entitle him to become a member of the
Rajya Sabha.
• He must not hold any office of Profit in Union or State Government.
• He must not be a member of either house of Parliament or any state legislature. In case he
is a Member of Parliament or State legislature, he must resign his membership before
assuming the office.
Election
Vice-President is elected by members of an electoral college consisting of members of both
houses Parliament in accordance with the system of proportional representation by means of
single transferable vote. The voting at such election is done by secret ballot.
Term
The term Vice-President is elected for five years. He is eligible for re-election. He may resign his
office before the expiry of the normal term. His letter of resignation is to be addressed to the
President.
Method of removal

32
The Vice-President can be removed from his office by a resolution of the Rajya Sabha passed by
its members and agreed by Lok Sabha. At least fourteen days’ notice is necessary before such
resolution is moved.
Salary
The Vice-President gets a salary of Rs 3.5 lakh per month. However, the salary is not paid to him
as vice-president, but he gets these emoluments as being the ex-officio Chairman of Rajya
Sabha. In this capacity, he enjoys other facilities also like free residence, free medical aid etc.
Functions
Vice-President performs a dual role
(1) As Vice-President
As the Chairman of Rajya Sabha Under Article 65 of the constitution of India, the
Vice-President act as the President in the event of a vacancy occurring due to death, resignation
or removal of the President, or otherwise. When the President is unable to act owing to his
absence, illness or any other cause, the Vice President discharges the President’s functions for a
temporary period until the President resumes his duties. As the Chairman of the Rajya Sabha, the
Vice-President presides over the meetings of the House.
As the Presiding Officer, the Chairman of the Rajya Sabha is the unchallenged guardian of the
prestige and dignity of the house. He is the custodian of the rights and privileges of the House.

Q.6. Discuss the Constitution, function& Powers of Public Service Commission.

Ans. Public service is defined as a service that is provided to the people by the government of
the country or a state concerned; Commission is defined as a group of people who are officially
charged with a particular act. So, we can say that the public service commission is that
commission or agency which is charged to recruit public servants (chosen people who serve the
public of their country) on a merit basis by conducting examinations at the central and state
level.
The origin of the public service commission in India dates back to 1919 when the first is part of
the government of India on 5 March 1919 the Indian constitutional reform which is referred to
the need to establish permanent offices for the regulation of service matters. Further, section

33
96(c) of the government of India act, 1919 provided for the establishment of a public service
commission to discharge such functions as may be assigned in the relation to the recruitment
and control of public services in India. Thereby the secretary in the council by rules made by
the state. Subsequently, the Lee commission also recommended a public service commission,
which was set up on 1st Oct 1926 and the 1st member of this commission was Sir Ross Barker.

After the passage of the government of India Act 1935, this public service commission was
converted into federal public service commission after the enforcement of the constitution on
26th January 1950 the name of the federal public service commission was changed to Union
public service commission. The commission has been constituted under article 315 of the
constitution.
The public service commission is an independent constitutional body that is enshrined under
Article 315- Article 323 of Part XIV of the Indian constitution. There are three public service
commissions in India.

Union public service commission (UPSC)

State public service commission (SPSC)
Joint public service commission (JPSC)
Constitutional Provisions
Article 315 to 323 of Part XIV of the Indian Constitution deals with the composition of UPSC,
SPSC, appointment, and removal of its members, and the powers and functions of UPSC, SPSC.
Under this provision, JSPSC is also mentioned.
Article 315: Constitution of Public Service Commissions (PSC) for the Union and the States of
India.
Article 316: Appointment and term of office of members of UPSC as well as SPSC.
Article 317: Removal and suspension of a member of both the UPSC or SPSC.
Article 318: Power to make regulations for the conditions of service of members and staff of
the Commission.

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Article 319: Prohibition of holding the office by members of Commission upon ceasing to be
such members.
Article 320: States the functions of Public Service Commissions.
Article 322: Expenses of Public Service Commissions.
Article 323: Reports of Public Service Commissions.
COMPOSITION OF U.P.S.C AND S.P.S.C
• Both U.P.S.C and S.P.S.C consists of one chairman and other members at central and
state level respectively.
• The commission consists of 9 to 11 members including the chairman, though the
number is nowhere defined or mentioned and it varies from time to time and is decided
by the president in case of UPSC and by the governor in case of SPSC.
• The present strength of the commission is 11 which is a chairperson and 10 other
members.
APPOINTMENT OF MEMBERS
The appointment of members of UPSC and SPSC is mentioned under article 316 of the Indian
constitution.

• The chairman and other members of UPSC and SPSC are appointed by the president
and governor of the state respectively.
• Though there is no specific qualification is mentioned in the constitution, one-half
(50%) of the UPSC members must be those who have served in a government office for
at least 10 years.
• The person to be appointed as a member of UPSC and SPSC should hold any office of
profit under the central or state government.
• When the chairman post is vacant or when the chairman is unable to perform his duties,
then the president and governor can appoint one of the members of UPSC and SPSC as
the chairman of UPSC and SPSC respectively.
Condition of service: In the case of UPSC the president shall be determined the number of
members and their condition of service. Present shall make the provision regarding the member

35
of staff and their services. And in the case of SPSC governor of state have the same duty as the
president. So, the condition of service of members of UPSC and SPSC shall not be amended
after his/her appointment that may lead to his/her disadvantages.

TENURE and REMOVAL:

• In the case of UPSC any member can hold office till the age of 65 years or for a term of
six years whichever is earlier, In the case of SPSC any member can hold the office till
the age of 62 years or for a term of six years whichever is earlier.
• Chairman of the UPSC and SPSC can leave their offices at any time by addressing their
resignation to the president and governor respectively. In both cases UPSC and SPSC the
president can remove the chairman or any other member on the ground (Removal
provision is given under article 317):
• If he sees any member unfit
• If the chairman and any member dissolve insolvent on the view of the president
During his tenure of office if chairman or any member engaging in any offers which
give him payment.
• But on the ground of misbehavior then the president will consult or refer the case to the
supreme court, then the supreme court will form a body which will investigate those
cases and the supreme court will advise the president and that advice is binding on the
president.
• The president and governor can suspend the member and chairman of UPSC and SPSC
respectively during the period when the matter is being inquired by the supreme court.
POWERS OF UPSC AND SPSC
The main strength or power of UPSC and SPSC is advisory power. It empowers the president
and the governor of any state to advise on the matters of
• Development of competencies on all matters relating to appointment to the civil services
of the government and the standard of candidates for transfer, promotion, and
appointment in all civil posts.

36
 • In respect of punctuality of decision and discipline in the government act of paying
compensation to a government servant, if the employee has suffered any problem or
financial loss due to negligence on the part of the government.
Matters relating to the demand and benefits of employees working under civil services and
those injured in the line of duty.
• It has the power to deal with the matters relating to the remedy of the punishment of
employees who have violated discipline or with all matters relating to the interest of
government servants working under the central government and the state government.
So that the constitution of India has made the UPSC and SPSC advisory bodies provide advice
on matters referred by the president of India or by the governor of the concerned state. That’s
why UPSC and SPSC is the recruiting agency at the central level and state level respectively.
FUNCTIONS OF UPSC and SPSC
Article 320 talks about the functions of the public service commission in which it says that:
• Its function is to recruit meritorious and potential candidates into administrative services
after being selected through competitive examination at all India and state respectively.
• The function of UPSC and SPSC is to assist the legislature in planning and conducting
joint recruitment for any services for which candidate must possess a particular
qualification
• UPSC advises the president and SPSC advises the governor on all matters relating to the
method of recruitment to civil services and for civil posts.
U.P.S.C. and S.P.S.C. lay down principles to be followed
• in making appointments to the posts of civil servants;
• in making promotions and transfers from one service to another;
• for checking the suitability of candidates for such appointment promotions or transfers.
• It also deals with all disciplinary matters affecting a person serving in a civil capacity
under the government of India or the governor of a state. It may also include a memorial
or petition relating to such a matter.

Q.5 . Write the Ordinance power.

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Ans. Ordinance-making power of the President (Article-123)
The most important legislative power of the President is his ordinance making power. If at any
time, when both Houses of the Parliament are not in session and the President is satisfied that
circumstances exist which render it necessary for him to take immediate action, he may issue
such ordinance as the circumstances appear to him to require. The ordinances, issued by him
shall have the same force as an Act of Parliament. Such ordinances issued by him shall have the
same force as an Act of Parliament. Such ordinances, however, must be laid before both Houses
of Parliament and shall cease to operate, at the expiry of six weeks from the date of re-assembly
or Parliament, unless a resolution disapproving it is passed by both Houses before the expiration
of six weeks. The President may, if he likes, withdraw such an ordinance at any time. An
ordinance promulgated under Article-123 is a law having the same force and effect as an Act of
Parliament. It cannot be treated as an executive action or an administrative decision. The
ordinance making power has been vested in the President to deal with unforeseen or urgent
matters.
The ordinance making power is exercised by the President on his own satisfaction. The court
cannot inquire into the reasons for the subjective satisfaction of the President or into the
sufficiency of those reasons. The existence of necessity for promulgating the ordinance is not
justifiable. The validity of an ordinance cannot be tested on grounds similar to those on which an
executive or judicial action is tested. The question whether a statute is constitutional or not is
always a question of power of the legislature concerned depending on the subject matter of the
statute, the manner in which it is accomplished and the mode of enacting it. The motive of the
legislature in passing a statute is beyond the scrutiny of courts. The propriety, expediency and
necessity of a legislative act are for the determination by the courts. An ordinance passed under
Article-123 and 213 stands on the same footing. Thus, the validity of an ordinance cannot be
challenged on the grounds of non-application of mind, more so when it has been promulgated on
the basis of a policy decision taken by the government.
An ordinance can be issued only when both the Houses of the Parliament are or not in session. It
follows from this that an ordinance can be issued when only one House is in session because a
law cannot be passed by one House alone. It is to be noted that the satisfaction is not the personal

38
satisfaction of the President. In reality, it is the satisfaction of the Cabinet on whose advice the
President exercises his ordinance making power.
The ordinance making power of the President is co-extensive with the legislative power of the
Parliament, that is to say, that it may be related to any subject in respect of which Parliament has
power to legislate. Hence, an ordinance will be void in so far it makes any provision which under
the Constitution the Parliament is not competent to make [clause-3]. Thus, an ordinance cannot
violate the fundamental rights.

Q. 6. Describe the function of parliament.

Ans. Function of parliament
Legislative Powers
The parliament has a major role to play in the legislative sector of the country which is as
follows: It is the duty of the Parliament to legislate on every matter mentioned in the Union and
Concurrent List. The Parliament also plays an important role in passing laws on the State Lists
under certain circumstances and as per certain articles such as 249, 252, and 253. The Parliament
can enact law at any time either amending or differentiating the state legislature law.
All the subjects in our constitution are divided among state, union and concurrent lists. In
concurrent list Parliamentary law is over riding than state legislative law. Constitution also has
powers to make law with respect to state legislature in following circumstances:
(i). When Rajya Sabha passes a resolution to that effect.
(ii). When national emergency is under operation.
(iii). When two or more states request parliament to do so.
(iv). When necessary to give effect to international agreements, treaties and conventions.
(v). When President’s rule is in operation.
2) Executive Powers
According to parliamentary form of government executive is responsible to the parliament for
its acts and policies. Hence parliament exercises control by various measures like committees,
question hour, zero hour etc. ministers are collectively responsible to the Parliament.
The parliament is an important part of the country as it takes control of the executive functions
with several ways:
39
The Parliament can any time remove a cabinet from the power which is possible by a vote of
no-confidence. It can also oppose the demand in the bill of finance brought by the Government.
The adjournment motion is an important executive function of the Parliament in which the
attention is brought to the public emergency interest. A Committee is appointed by the
Parliament to check on the departments if they are keeping the promises made to the Parliament.
The ministers are responsible for every action taken by the Parliament.
3) Financial Powers
The Parliament is the head of this department and without parliamentary approval, the Executive
cannot function. These are the financial functions of the Parliament:

• The tax imposition must be approved by the Parliament

• Cabinet prepares the Union Budget which is later submitted to the Parliament for their
approval.
• The Parliament plays a major role in the money bills.
• The two departments of the Parliament is appointed to keep a tab on how the money is
being spent given by the legislative to the executive which is Public Accounts Committee
and Estimates Committee.
It includes enactment of budget, scrutinizing the performance of government with respect of
financial spending through financial committees (post budgetary control)
4) Constituent Powers- Example - To amend the constitution, to pass any laws required
5) Judicial Powers- Includes -
(i) Impeachment of President for violation of constitution.
(ii). Removal of judges of Supreme Court and High court.
(iii). Removal of Vice- President.
(iv). Punish members for breach of privileges like sitting in the house when the member knows
he is not an eligible member, serving as member before taking oath etc.
6). Electoral Powers

40
It has its participation in the election of President and Vice-President. The members of Lok
Sabha elect speaker and deputy speaker from among its members. Similarly members of Rajya
Sabha elect deputy chairman.
7). Other Powers
(i). To discuss various issues of national and international importance.
(ii). Imposing emergency.
(iii). Increase or decrease area, change names, alter the boundary of the states.
(iv). Create or abolish state legislature etc any powers can be added from time to time.
Article 245 of the constitution declares that parliament may make laws for the whole or any part
of the territory of India and a state legislature can make laws for the whole or any part of the
state. Seventh Schedule of the constitution distributes the legislative powers between the centre
and the state by putting subjects into Union List, State List and Concurrent List. The centre can
make law on any of the subjects in the union list or in the concurrent list. The parliament can
override the law of a state on a subject listed in concurrent list. In addition to these powers, the
residuary powers are also vested with the parliament.
The constitution also empowers the Parliament to make law on a state subject in
the following circumstances:
(i) When Rajya Sabha passes a resolution supported by two-thirds of the members present and
voting.
(ii) When a Proclamation of Emergency is in operation.
(iii) When two or more states make a joint request to the parliament.
(iv) When it is necessary for parliament to implement any international treaty, agreement or
convention.
(v) When President’s rule is in operation in the state.

Very Short Questions Answers

Q.1. What is the Immunities are available of the President of India?

Ans. Privileges of the President

Article-361 of the Constitution guarantees the following privileges to the President–

41
1. The President shall not be answerable to any court for the exercise and performance of the
powers and duties of his office or for any act done or purporting to be done by him in the
exercise of those powers and duties. However, the conduct of the President may be brought
under review by any court, tribunal or body appointed or designed by either Houses of
Parliament for the investigation of the charge in impeachment proceedings. Thus, the immunity
afforded to the President will not restrict the right of any person to bring suit against the
government of India.

2. No criminal proceedings whatsoever shall be instituted and continued against the President in
any court during the term of office.

3. No process for the arrest or imprisonment of the President shall be issued from any court
during his term of office.

4. No civil proceedings in which relief is claimed against the President shall be instituted during
his term of office in any court in respect of any act done or purporting to be done by him in his
personal capacity whether before or after he had entered upon his office until (a) a notice in
writing has been given to the President, (b) two months have passed after the service of such
notice, and (c) the notice states the nature of proceeding, the cause of action, the name, residence
and description of the party taking the proceedings and the relief claimed.

Q. 2. Define the power of the President to consult the Supreme Court.

Ans. Article143 deals with the Advisory Jurisdiction of the Supreme Court
(1) If at any time it appears to the President that a question of law or fact has arisen, or is likely
to arise, which is of such a nature and of such public importance that it is expedient to obtain the
opinion of the Supreme Court upon it, he may refer the question to that Court for consideration
and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.
(2) The President may, notwithstanding anything in the proviso to article 131, refer a dispute of
the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court
shall, after hearing as it things fit, report to the President its opinion thereon.
Q. 3. What is the procedure for the impeachment of the President?

Ans. Impeachment of President (Art. 61)

Impeachment is the process to remove the President of India from his office before his term
expires. The impeachment can be carried out if the Constitution of India is violated by the
42
President and the proceedings can be initiated in either of the two houses of the Parliament.
Two-thirds majority is required to pass the resolution in the House. a notice signed by a quarter
of the members of the House and containing the charges is sent to the President. After 14 days
the charges are taken into consideration by the other House and in the meantime the President
can defend himself. If the charges are approved by the second House also then the President is
said to have been impeached. He has to leave his office.
Q. 4. Explain the composition of Supreme Court of India.

Ans. Article 124: Establishment and Constitution of Supreme Court

(1) There shall be a Supreme Court of India consisting of a Chief Justice of India and,
until Parliament by law prescribes a larger number, of not more than seven other Judges. (At
present 33 other judges )
(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his
hand and seal after consultation with such of the Judges of the Supreme Court and of the High
Courts in the States as the President may deem necessary for the purpose and shall hold office
until he attains the age of sixty-five years.
Q. 5. What do you understand by the Money Bill?
Ans. Money Bill
Article-110 (1) defines that a Money Bill is a bill which contains only provisions with respect to
all or any of the following matters-
(a) the imposition, abolition, remission, alteration or regulation of any tax,
(b) the regulation of the borrowing of money or the giving of any guarantee by the Government
of India,
(c) the custody of the Consolidated Fund or the Contingency Fund, the payment or withdrawal of
money from such fund,
(d) the appropriation of money out of the Consolidated Fund of India,
(e) the declaring of any expenditure to be charged on the Consolidated Fund of India,

43
(f) the receipt of money on account of the Consolidated Fund of India or the Public Account of
India or the custody or issue of such money or the audit of the accounts of the Union or of a State
(g) any matter incidental to any of the matters specified in sub-clauses (a) to (f)
But a Bill is not Money Bill by reason only that it provides for
(a) the imposition of fines or other pecuniary penalties, or
(b) the payment of fees for licence or service rendered, or
(c) Imposition, abolition, remission, alteration or regulation of any tax by any·· local authority or
body for local purposes [Article-113 (2)].
If any question arises whether a bill is a Money Bill or not the decision of the Speaker of the Lok
Sabha shall be final. So when a Bill is sent to the Rajya Sabha or presented to the President for
assent, a certificate of the Speaker shall be endorsed on it that it is a Money Bill [Article-110
(4)].
A Money Bill can only be introduced in the Lok Sabha. It cannot be introduced in Rajya Sabha
[Article-109 (1)]. A Money Bill can only be introduced with the recommendation of the
President. However, no recommendation of the President is necessary for the moving of an
amendment including provision for the reduction or abolition of any tax.
After a Money Bill has been passed by the Lok Sabha, it is sent to the Rajya Sabha for its
recommendations. The Rajya Sabha must return the Bill to the Lok Sabha within fourteen days
from the receipt of the Bill with its recommendation. The Lok Sabha may. either accept or reject
all or any of the recommendations of the Rajya Sabha. If the Lok Sabha accepts any of the
recommendations by the Rajya Sabha, the Money Bill shall be deemed to have been passed by
both Houses with the amendments by the Rajya Sabha and accepted by the Lok Sabha. If a
Money Bill passed by the Lok Sabha and sent to the Rajya Sabha for its recommendations is not
returned to the Lok Sabha within fourteen days, the bill shall be deemed to have been passed by
both Houses at the expiration of the fourteen days period in the form in which it was passed by
the Lok Sabha. Thus, the Rajya Sabha can at most detain a Money Bill for fourteen days only. If
the Lok Sabha rejects all the recommendations of the Rajya Sabha, the bill shall be deemed to
have been passed by both Houses in the form in which it was passed by the Lok Sabha. After that
the Money Bill is presented before the President for his assent.

44
The Lok Sabha may accept or reject the amendments suggested by the Rajya Sabha. It has thus
the final say with regard to the passing of a Money Bill, when a Money Bill is presented to the
President.

Q. Explain Ordinary Bill?

Ans. Ordinary bill is a bill that is presented by any house of parliament and is passed by both
houses of parliament. An ordinary bill, according to Articles 107 and 108 of the Indian
Constitution, is concerned with any issue other than financial matters. It can originate in either
House of the state legislature (if the legislature is bicameral). A bill of this nature can be
proposed by a minister or by any other member.

• Ordinary bill is introduced in any House of Parliament. This bill is introduced by a

Minister or a Private Member of Parliament.
• An ordinary bill is concerned with any issue other than financial concerns, according to
Articles 107 and 108 of the Indian Constitution.
• There is no recommendation of the President in the case of ordinary bills.
• Ordinary bills can be changed or rejected by Rajya Sabha, and they can be delayed for six
months.
• Article 111 of the Indian Constitution requires that a bill be brought to the President for
his approval or assent after it has been enacted by both houses of Parliament.
• In the event of an ordinary bill, there is a provision for a joint sitting.
• An ordinary bill goes through five stages before it becomes a law:
1. First reading,
2. Second reading
3. Third reading.
4. Bill in the Second House
5. Assent of the President
Q. Describe Financial Bill?

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Ans. The Finance Bill, also known as the "Act for Appropriation of Funds for Appropriations,"
is a bill that specifies the amount of money to be spent by the Government of India and how it is
to be spent. Financial bills are those that address fiscal issues, such as revenue or spending.
However, in a technical sense, the word "finance bill" is used in the Constitution. The Finance
Bill is a component of the Union Budget that specifies all of the legal changes necessary for the
proposed tax adjustments by the Finance Minister.

• Financial bills are those bills that are concerned with financial problems but are not
money bills, according to Article 117 of the Indian Constitution.
• Financial bills are further divided into two categories: Financial bills (i) and (II).
• The Speaker of the Lok Sabha has the authority to rule on whether or not the Bill is a
Money Bill.
• In addition, the Speaker's decision will be considered final.
• A Finance Bill is a bill that specifies the amount of money that the Government of India
intends to spend and how it intends to spend it.
• A Finance Measure is a financial bill that addresses issues such as tax relief, inflation,
and interest rates, among others.
• Because it is a financial bill, it can be presented by any member of either house of
Parliament.

UNIT-IInd
Detailed Questions Answers

46
Q.1. Discuss the procedure of appointment and powers of the Governor of the
State.

Ans. The Governor

PART VI of the Constitution deals with the other half of Indian federalism, i.e the States.
Article from 152-237 deals with various provisions related to States. It covers the executive,
legislature and judiciary wings of the states. Article 152 clarifies about the definition of state,
while the next set of articles lists the roles and responsibilities of the Governors of states.
Governors of the state Article-153
The pattern of the governance in the State is the same as that of the Union. The executive head is
to act according to the advice of the Council of Ministers. Article-153 creates the office of the
Governor. There shall be a Governor for each State. However, a person can be appointed
Governor of two or more States. The executive power of the State is vested in the Governor who
shall exercise it either directly or through officers subordinate to him. The expression officers
subordinate to him includes a Minister also. The office of the Governor is a unitary feature of the
Constitution.
Appointment of Governor - Article155: The Governor of a State is appointed by the President.
He holds his office during the pleasure of the President which technically means pleasure of the
Prime Minister and the Council of Ministers. He is an officer appointed by the Union
Government. The office of Governor is a unitary feature of the Constitution of India.
Qualifications Article 157 A person to be eligible for appointment as Governor must be (a)
citizen of India, (b) must have completed the age of thirty five years. The Governor shall not be a
member of either house of Parliament or of a house of the Legislature of any State. If a member
of either house of Parliament or of a house of the Legislature of any State is appointed as
Governor, he shall be deemed to have vacated his seat in the house on the date on which he
enters upon his office as Governor. He shall not hold any other office of profit.
The Governor is entitled to such emoluments, allowances and privileges as may be determined
by the Parliament by law. He is also entitled to rent free use of his official residence. The salary
and allowances of the Governor cannot be reduced during his term of office. The Governor
before entering upon his office is required to take an oath or affirmation in the presence of the
47
Chief Justice of the High Court of that State and if he is not present then in the presence of the
senior most judge of the High Court.
Tenure and Removal : Article 156 The Governor shall hold office during the pleasure of the
President. The tenure of the office of the Governor is of five years from the date on which he
enters upon his office. He may be removed from his office at any time. The Governor may,
however, resign from his office by writing to the President. The Presidential pleasure is not
justifiable.
Oath or Affirmation by the governor
Every Governor and every person discharging the functions of the Governor shall, before
entering upon his office, make and subscribe in the presence of the Chief Justice of the High
Court exercising jurisdiction in relation to the State, or, in his absence, the senior most Judge of
that Court available, an oath or affirmation in the following form, that is to say—
“I, A. B., do swear in the name of God that I will solemnly affirm
faithfully execute the office of Governor (or discharge the functions of the Governor) of
………….(name of the State) and will to the best of my ability preserve, protect and defend the
Constitution and the law and that I will devote myself to the service and well-being of the people
of ..………(name of the State) .”
Discharge of the functions of the Governor in certain contingencies Article 160
The President may make such provision as he thinks fit for the discharge of the functions of the
Governor of a State in any contingency not provided for in this Chapter.
Powers of the Governor
The powers of the Governor of a State are analogous to those of the President except that the
Governor has no diplomatic military or emergency power. The powers of the Governor can be
classified under four heads i.e. executive, financial, legislative and judicial–
Executive Power : The executive power of the State is vested in the Governor and is to be
exercised by him directly or through officers subordinate to him. The executive power of the
State extends to matters with respect to which the legislature of the State has power to make
laws. All executive actions of the Government of a State shall be expressed to be taken in the
name of the Governor.

48
The Supreme Court in Ram Jawaya Kapur v. State of Punjab , held that our Constitution has
adopted the Parliamentary form of governance and in governance the President and the
Governors are constitutional heads and the real executive powers are vested in the Councils of
Ministers. In Shamsher Singh v. State of Punjab , the Supreme Court has held that the President
and the Governors are constitutional heads and they exercise their powers and functions with the
aid and advice of the Council of Ministers and not personally save in cases where the Governor
is required by the Constitution to exercise his functions in his discretion. The appointment as
well as removal of the members of the subordinate judicial service is an executive function of the
Governor and is to be performed on the advice of the Council of Ministers. Wherever the
Constitution requires the satisfaction of the President or the Governor, the satisfaction is not the
personal satisfaction of the President or Governor but it is the satisfaction of the Council of
Ministers. The decision of any Minister or officer under rules of business made under any of the
Articles-77(3) and 166(3) is the decision of the President or the Governor, respectively. These
Articles do not provide for any delegation. Therefore, the decision of Minister or officer is the
decision of the President or the Governor.
Financial Powers
A Money Bill cannot be introduced in the legislative assembly of the state without the
recommendation of the Governor. No demand of grants can be made except on the
recommendation of the Governor. The Governor is required to cause to be laid before the house
or houses of the legislature Annual Financial Statement, known as the Budget.
Legislative Powers
The Governor summons the houses or each house of the legislature of state to meet at such time
and place as he thinks fit. However, six months must not lapse between the last sitting in one
session and the first in the next session. He may prorogue the houses or either house and dissolve
the legislative assembly. He has the right to address the state legislature. No bill can become law
without the assent of the Governor. He has the right to reserve certain bills for the assent of the
President. [Article-200].
Ordinance-making power of the Governor

49
The ordinance making power of the Governor is similar to that of the President. According to
Article-213, whenever the legislature is not in session and if the Governor is satisfied that
circumstance exist which require him to take immediate action he may legislate by ordinances.
However, the Governor cannot issue an ordinance without previous instructions from the
President in cases in which (a) bill would have required his previous sanction, or (b) required to
be reserved for the assent of the President. Every ordinance is to be laid before both houses of
the state legislature and shall cease to operate at the expiry of six weeks from the re-assembly of
the legislature or earlier than six weeks if a resolution disapproving it is passed by the legislative
assembly. The Governor may withdraw the Ordinance at any time before the expiry of six
weeks. The ordinance issued by the Governor shall have the same validity as an Act of the
Legislature.
The court cannot question the validity of the ordinance on the ground that there was no necessity
or sufficient ground for issuing the ordinance by the Governor. The existence of such necessity is
not a justifiable issue. The ordinance shall be laid before the Legislative Assembly of the State or
where there is a Legislative Council in the state, before both houses and, shall cease to operate at
the expiration of six weeks from the re-assembly of the legislature, unless it is approved earlier
by the legislature. The ordinance may be withdrawn at any time by the Governor. The ordinance
making power of the Governor is extensive with the legislative powers of the state legislature.
He can issue ordinance only on the subjects on which the state legislature is empowered to make
laws e.g., State List and Concurrent List. Both Union and State Legislatures can make laws on
subjects mentioned in the Concurrent List. According to Article-213 (3), therefore, an Ordinance
will be invalid to the extent it makes any provision which would be invalid if enacted by the state
legislature.
But such an ordinance will not be invalid if it has been issued by the Governor in pursuance of
instructions from the President. The Governor cannot issue an ordinance without the instructions
from the President in the following cases: (a) a Bill containing the same provision would have
required the provisional sanction of the President for its introduction into the Legislature, (b) he
would have deemed it necessary to reserve a Bill for the consideration of the President, (c) an
Act of the Legislature of the State containing the same provisions would have been invalid

50
unless having been reserved for the consideration of the President and had received the assent of
the President.
The Ordinance making power vested in the executive is meant to be exercised in exceptional
circumstances, i.e., where immediate action is necessary. It is not difficult to imagine the cases
when ordinary law making powers may not be able to deal with a situation which may suddenly
arise.
The fears expressed by members of the Constituent Assembly that the ordinance making powers
might be abused by the executive is not unfounded. D.C. Wadhava v. State of Bihar furnishes a
glaring example of the abuse of the ordinance making power by the executive. The petitioner, a
Professor of Political Science, carried a detailed research in the matter challenging the practice of
the State of Bihar in promulgating and re-promulgating ordinances on a large scale without
enacting them into Acts of the legislature and keeping them alive for an indefinite period of time.
He pointed out that the Governor of Bihar had promulgated 256 ordinances between 1967 and
1981 and all these were kept alive for periods ranging between 1 to 14 years by re-promulgating
them from time to time. Out of these 256, 69 were re-promulgated several times and kept alive
with the prior permission of the President of India. The court held that such a practice was a
subversion of the democratic process and colourable exercise of power and amounted to fraud
upon the Constitution and hence unconstitutional. The Court called it usurpation by the executive
of the law making function of the legislature. The power to promulgate an ordinance is
essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be
perverted to serve political ends.
The Pardoning Power
Article-161 says that the Governor shall have the powers to grant pardons, reprieves, respites or
remissions of punishment or to suspend, remit or commute the sentence of any person convicted
of any offence against any law relating to matters to which the executive power of the State
extends. The executive power of the State extends to matters with respect to which the legislature
of the State has power to make laws.
A similar power is conferred by Article-72 on the President of India. But there is a difference
between the pardoning power of the President under Article-72 and the pardoning power of the

51
Governor of a State under Article-161. Under Article-72 the power of the President is wider than
that of the Governors of states - First, the President has exclusive power to grant pardon in cases
where the sentence is a death sentence while the Governor cannot grant pardon in case of a death
sentence. Secondly, the President can pardon punishments of sentences inflicted by the court
martial. The governors have no such power. In respect of suspension, remission and
commutation of sentence both have concurrent power.
A pardon is an act of grace and therefore it cannot be demanded as a matter of right. The effect
of pardon is that it not only removes the punishment but in the eye of law places the offender in
the same position as if he had never committed the offence. The executive can exercise the
pardoning power at any time after commission of an offence, either before legal proceedings are
taken or during their pendency or either before or after conviction.
Pardoning power subject to judicial review: In a significant decision in E. Sudhakar v. State
of A. P.28 , the Supreme Court held that the Governor cannot exercise his pardoning power
arbitrarily. In the instant case a Congress Party worker was awarded death sentence by the trial
court for committing murder of a Telegu Desam Party worker. The High Court of the Andhra
Pradesh had confirmed the death sentence. The Governor of the state granted him pardon. The
son of the deceased filed a writ petition in the Supreme Court challenging the validity of the
pardoning power of the Governor. The Supreme Court quashed the pardoning order of the
Governor as illegal and upheld the judgment of the High Court of Andhra Pradesh awarding the
accused the sentence of death. The Supreme Court held that if the exercise of pardoning power is
done on the ground of caste, religion or political considerations the court can examine its
constitutional validity.
Q. 2. Explain the provisions of the Constitution which ensures Independence of
Judiciary and discuss the appointment and transfer of the judges of higher
courts.

Ans. Meaning of Independence of Judiciary

Independence of Judiciary means it is free from the other organs of the state especially
executive and legislative body. It must be from power pressure or other undue thing.
INDEPENDENCE means ‘the state or condition of being free from a dependence, subjection

52
or control.’ JUDICIARY means that branch of Government invested with the judicial power
and the system of the court in a country. It is intended to interpret construe and apply the law.
English Position
The Judges are appointed by the crown the executive of the day (prior to 2005)The power of
the executive was curtailed in 2005 by the Constitutional Reform Act ,2005 which established
the Judicial Appointments Commission for England and Wales and Judicial Appointments and
Conduct Ombudsman.
American Position
In U.S.A the President appoints the Supreme Court Judges with the consent of the Senate.
Indian Position
The framers of the Indian Constitution saw difficulties in both in English as well as American.
So they have adopted a middle course. The earlier English method appeared to give a blank
cheque to the executive while in American system it involves the possibility of subjecting
judicial appointments to political influence and pressure.
But in India Art 124(2) as mentioned above neither gives absolute authority to the
Executive nor does it permit parliament to influence the appointment of judges.
Nature and Scope of Independence of Judiciary
The nature and concept of independence of judiciary is of modern origin and accepted as a
hall-mark of a liberal democratic state". Independence of judiciary means a fair and neutral
judicial system of a country, which can afford to take its decision without any interference of
executive or legislative branch of government. In other words, judges should be independent and
free from restrictions, inducement, influence, pressures and threats direct or indirect from
executive or legislative
Different countries deal with the idea of judicial independence through different means of
judicial selection, or choosing judges. One way to promote judicial independence is by
granting life tenure or long tenure for judges, which ideally frees them to decide cases and
make rulings according to the rule of law and judicial discretion, even if those decisions are
politically unpopular or opposed by powerful interests.

53
This concept can be traced back to 18th-century England. In some countries, the ability of the
judiciary to check the legislature is enhanced by the power of judicial review. This power can be
used, for example, by mandating certain action when the judiciary perceives that a branch of
government is refusing to perform a constitutional duty or by declaring laws passed by the
legislature unconstitutional.
Independence of the judiciary is one of the basic structures of the Indian Constitution and has
also been recognized as a human right by international conventions. In our Constitution, three
wings of Government are enshrined, and each of these three wings of government has to work
independently in spite of the fact that they are inter connected with each other.
Justice Krishan Iyer observed for distinction that judiciary has to draw the line between
individual liberty and social control. The objective of justice is deeply enshrined in the
Preamble of the Constitution of India. In fact, judiciary does not only dispense justice between
one individual and the other or between one group of people and the other, it also does justice in
the controversies arising between individuals and States, State's State. All the above
responsibilities can be discharged only when the country has an authoritative, independent
and impartial judiciary.
Necessity for Independence of Judiciary
The basic need for the independence of the judiciary rests upon the following points
(i) To check the functioning of the Organs Judiciary acts as a watch dog by ensuring that all
the organs of the state function within their respective area and according to the provisions of the
Constitution. Judiciary acts as a guardian of the Constitution and also aid in securing the doctrine
of separation of power.
(ii) Interpreting the Provisions of the Constitution
It was well known to the framers of the Constitution that in future the ambiguity will arise with
the provisions of the Constitution so they ensured that the judiciary must be independent and self
competent to interpret the provision of the Constitution in such a way as to clear the ambiguity
but such an interpretation must be unbiased i.e. free from any pressure from any organs like
executive. If the judiciary is not independent, the other organs may pressurize the judiciary to

54
interpret the provision of the Constitution according to them. Judiciary is given the job to
interpret the Constitution according to the constitutional philosophy and the constitutional norms.
(iii) Disputes Referred to the Judiciary
It is expected of the judiciary to deliver judicial justice and not partial or committed justice. By
committed justice we mean to say that when a judge emphasized on a particular aspect while
giving justice and not considering all the aspects involved in a particular situation. Similarly
judiciary must act in an unbiased manner.
Constitutional provision relating Independence Of Judiciary
Indian Position
The framers of the Indian Constitution saw difficulties in both in English as well as American.
So they have adopted a middle course. The earlier English method appeared to give a blank
cheque to the executive while in American system it involves the possibility of subjecting
judicial appointments to political influence and pressure.
But in India Art 124(2) as mentioned above neither gives absolute authority to the Executive
nor does it permit parliament to influence the appointment of judges.
Article 124 deals with the appointment of Judges to the Supreme Court and Article 217
regarding appointment of Judges to High Courts. The fasciculus's of Article 124 to 147 in
Chapter IV of Part V under the caption "Union Judiciary" deals with the establishment and
constitution of Supreme Court, the appointment of judges and their powers rights, jurisdiction
and service conditions, etc., whilst Article 214 to 231 in Chapter V of the Part VI under the
caption " The High court's in the states" deals with the constitution of High Court, the
jurisdiction, the appointment and conditions of the office of a Judge of a High Court, his powers,
rights, service conditions, including transfer from one High Court to another etc.
The power to appoint a judge to the Supreme Court or to a High Court vests in the PresidentThe
power of appointment of judges of the Supreme Court is to be found in clause (2) of Article 124
and this clause provides that every Judge of the Supreme Court shall be appointed by the
President after consultation with such of the Judges of the Supreme Court andthe High Courts in
the states as the President may deem necessary for the purpose, provided that in the case of
appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be

55
consulted. It is obvious on a plain reading of clause (2) of Article 124 that it is the President,
which in effect and substance means the Central Government, which is empowered by the
Constitution to appoint Judges of the Supreme Court. Article 217, clause (1) vests the powers of
appointment of Judges of High Courts in the Central Government but such power are exercisable
only "after consultation with the Chief Justice of India, the Governor of the State and the Chief
Justice of the High Court".

JUDICIAL INTERPRETATION
Independence of judiciary starts from appointment of judges. The appointment of the judges is
the prime and fore-most link in the chain of judicial reform. As Justice Bhagwati has stated
that a right appointment would go a long way towards securing the right kind of judges who
would invest the judicial process with significance and meaning, for the deprived and exploited
sections of humanity. To enable the Supreme Court and High courts to discharge their
functions impartially, with fear of favor, the Constitution contains provisions to safeguard
their Executive after consultation with those competent to advice on the subject.
Sankalchand Seth ‘s case (AIR 1977SC2328) The meaning of the word ‘consultation
‘came before the consideration of the Supreme Court which was related to the scope of Art
222 of the Indian Constitution. It was held that the word ‘consultation’ means full and effective
consultation.
In S. P. Gupta V Union Of India (AIR 1982 SC149) popularly known as Judges transfer
case, the Supreme Court agreed unanimously agreed with the meaning of the term consultation
as explained by the majority in Sanakalchand Seth’s case.
It is submitted that the majority judgment of Supreme Court in the judge’s transfer was bound to
have an adverse affect on the independence and impartially of the judiciary which is the only
hope for the citizens in democracy.
After 1993 Position
Judicial Supremacy
In S.C. Advocate - on- Record Association v Union of India Case ( 1993 )4 SCC441 a nine
judge bench of the Supreme Court by a 7: 2 majority overruled its earlier judgment in the

56
judges transfer case (S. P.Gupta’s case) and held that in the matter of appointment of the
Judges of the Supreme Court and the High Courts and the Chief Justice of India should have
primacy.
Sole opinion of Chief Justice of India without consultation process :Not
binding on Government : Appointment and transfer of judges Case.
In re Presidential Reference case (AIR 1999 SC 1 ) a nine judge bench of the
Supreme Court unanimously held that the recommendation made by the Chief Justice of India
on the appointment of judges of the Supreme Court and the High Court’s without following
the consultation process are not binding on the Government.
The bone of contention in this particular section is the word 'consultation', that whether
'consultation' means concurrence or merely communication.
In 1982 in S.P. Gupta v. Union of India, a Bench of five judges of the Supreme Court
considered the method of appointment of judges of the Supreme Court and High Court. Both
Articles 124 (2) in relation to Supreme Court Judge and Article 217 (1) in relation to High
Court Judge require an appointment by the President (Which means the Executive) after
"consultation" amongst other functionaries mentioned in the articles of the Chief Justice of India
• But now in Supreme Court Advocates on record v. Union of India, the judgment in S.P.
Gupta's Case is now reversed that the court has held that the opinion of the Chief
Justice shall be binding on the President as he is more competent than other
constitutional machineries to accrue the merit of a candidate. The judges of the
Supreme Court and High Courts have been given the security of the tenure. Once
appointed, they continue to remain in office till they reach the age of retirement which is
65 years in the case of judges of Supreme Court (Article 124(2)) and 62 years in the
case of judges of High Courts (Article 217 (1)).
In the words of the bench in All India Judges Association v. Union of India They are not
employees of the State holding office during the pleasure of President/Governor of the State, as
the case may be".
Q. 3. Describe the writ Jurisdiction of High Courts.
Or

57
Q. 3. The writ jurisdiction of the High Court is wider than the Supreme Court.

Ans. Meaning of Writ

A writ is a directive issued by the Supreme Court and High Courts in India to carry out their
directives for the enforcement of the fundamental right and/or legal right of the affected
person. The Supreme Court can issue writs under Article 32 of the Constitution while the High
Courts can issue writs under Article 226 of the Constitution
Writ Jurisdiction Article-226
An important aspect of the Indian constitution is the jurisdiction it confers on the High Courts to
issue writs. The writs have been among the great safeguards provided for upholding the rights
and liberties of the people. Through, writs in India, the high Courts are able to control, to same
extent the administrative authorities in the modern administration again the era of welfare state.
The writ system provides an exception and less expensive remedy then any other remedy
available through the normal cost process.
Under Article-226, a High Court is important to issue directions, orders or writs including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of
them, for the enforcement of a fundamental right and for any other purpose. Article-226 thus
provides important machinery for judicial review of administrative and legislative action and its
scope cannot be limited or whittled down by legislation.
A High Court can issue a writ to a person or authority having its location or residence within
territorial jurisdiction of the High Court or if the cause of action fully or partly arises within the
territorial jurisdiction of the High Court, it can issue a writ even when the person resides or the
authority is located outside its territorial jurisdiction. This is a very useful constitutional
provision as a High Court within whose Jurisdiction a cause of action arises is competent to issue
writs to the Union Government located in New Delhi.
Article-226 is wider in scope than Art 32, because under Article-32, the Supreme Court may
issue writs for the enforcement of fundamental rights only while under Article-226, a High Court
can issue a writ not only for the enforcement of a fundamental but also for any other legal right.
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The existence of an adequate alternative legal remedy is not a bar to the invocation of the
jurisdiction of the High Court under Article-226 when the relief is sought in case of infringement
of a fundamental right. In other cases, however, a High Court does not ordinarily issue a writ
when an alternative remedy is available. In a writ petition the High Court has jurisdiction to
determine questions both of fact and law, but usually it is reluctant to go into the question of
facts.
Locus standi
Ordinarily a person can approach the High court under Article-226 to enforce his legal right or
when he has sufficient interest in the subject matter. Whether a person has sufficient interest or
not is for the court to decide. Recently, the courts have shown a good deal of flexibility in the
matter of legal standing because with the expansion of bureaucratic power, the chances of its
misuse have increased so much so that the courts have even sanctioned public interest litigations.
A question of public interest may be raised through a writ petition by someone even through he
may not be the person injured or affected by it. Locus standi has been given a larger ambit. A
non political, nonprofit making and voluntary organization consisting of public spirited citizens
interested in taking up the cause of ventilating legitimate public problems may file a writ
petition.
The Writs
Habeas corpus
This writ is used to secure release of a person who has been detained unlawfully or without legal
justification. The great value of the writ is that it enables an immediate determination of the right
to freedom of an individual. Detention may be unlawful if it is not in accordance with law, or the
procedure established by law has not been strictly followed in detaining a person, or there is no
valid law to authorize detention, or the law is invalid because it infringes a fundamental right, or
the legislature enacting it exceeds its limits. Detention should not contravene Article-22 e.g. if a
person who is not produced before a magistrate within twenty four hours of his detention is
entitled to be released. The power of detention vested in an authority, if exceeded, abused or
exercised in a malafide manner makes the detention unlawful. While dealing with a petition for a

59
writ of habeas corpus, the court may examine the legality of the detention without requiring the
person detained before it.
In Sheela Barse vs Maharashtra, it has been held that a writ may be prayed for by the prisoner
himself or if he is unable to do so by someone else on his behalf. The Supreme Court has sought
to reduce procedural formalities and technicalities to the minimum in the matter of issue of
habeas campus because courts regard personal liberty as one of the most cherished values of
mankind.
In Icchn Devi vs. India, the court held that even a postcard by a detenue from jail is sufficient to
activate the court into examining the legality of detention. Also because of Article-21, the court
places the burden of showing that detention is in accordance with the procedure established by
law on the detaining authority.
In Madhu Bala vs. Narendra Kr., the court held that when a person complains of illegal custody
or detention by a private person, the court may grant an interim bail while dealing with a habeas
corpus petition.
Quo Warranto
This writ calls upon the holder of a public office to show that under what authority he is holding
office. The court may oust a person from an office to which is not entitled. It is issued against the
usurper of an office and the appointing authority is not a party. The court may thus control
election or appointment to an office against law, and protect a citizen from being deprived of a
public office to which he may be entitled. To file a petition for quo warranto it is not necessary
that the suffered a personal injury himself or should seek redress a personal grievance. Petitions
of quo warranto have been moved to test the validity of election to a university syndicate, or a
municipal corporation nomination of members to a legislative council by the Governor,
appointment of the Chief Minister or Chief Justice of India, a Advocate General of a State,
University teachers, Presiding Officer of a labour court etc.
The motives of the appointing officer in making the appointment in question are irrelevant in a
quo warranto petition. Also, the court would not issue the writ if it is futile e.g. if the person
holding the office, on being ousted by quo warranto can be reappointed as held by the Delhi
High Court in P.L. Lakhanpal Vs. A. N. Ray.

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The writ lies only in respect of a public office of a substantive character. If a Chief Minister
holds office without lawful authority and breach of any constitutional provision writ of quo
warranto can be issued but the issue of the membership of the assembly can be decided only
through election petition. The writ of quo warranto cannot be issued on the issue that the
ministry does not command majority or confidence of the house, as held in Purushottam Lal vs.
State Rajasthan.
Mandamus
Mandamus is a command issued by a court asking a public authority to perform a public duty
belonging to its office, e.g. when a tribunal omits to decide a matter which it is bound to decide,
it can be commanded to determine the questions which it has left undecided.
Mandamus can be granted only when the legal duty is imposed on the authority in question and
the petitioner has a legal right to compel the performance of this duty. The performance of the
duty should be imperative and not discretionary. Mandamus can be issued directing the executive
to do its legal duty by implementing the order of a tribunal. Mandamus can be issued when the
government denies to itself a jurisdiction which it undoubtedly has under the law.
In K.K. Das vs. West Bengal, the Supreme Court held that it is essential that a demand for justice
and its refusal must precede the filing of a petition asking for mandamus.
In the modern times extensive discretionarily powers are being conferred on the executive. In
such cases, the court cannot ask an authority to exercise its discretion in a particular way or
question its exercise on merits, or substitute its own discretion for that of the authority in which it
is vested as held in Vice-Chancellor vs. S.K. Ghosh.
A mandamus can be issued to restrain a public authority from acting under a void law, as held to
Dwarka Vs. U.P.
A party seeking mandamus must first call upon the authority concerned to discharge its legal
obligation and show that it has refused or neglected to carry it out within a reasonable time
before applying to a court for mandamus even where the alleged obligation is established.
Certiorari and Prohibition
The writs of certiorari and prohibition are issued practically on similar grounds.

61
The only difference between the two is that certiorari is issued after the decision is given by a
lower tribunal while prohibition is issuable before the proceedings are completed. The object of
prohibition is prevention rather then cure e.g. the High Court can issue prohibition to restrain a
tribunal from acting under an unconstitutional law. But if the tribunal has already given its
decision then certiorari is the right remedy. It may be that in a proceeding before an inferior
body, the High Court may issue both prohibition and certiorari i.e. prohibition to prohibit the
body to proceed further and certiorari to quash what has already been done by it. These writs go
to a body acting in an adjudicatory capacity and according to natural justice or fair procedure and
not to one acting in a purely administrative manner. It is not usual to find an express provision in
a statute to indicate whether the body set up by it is to act according to actual justice or
otherwise. In most of the cases, it is to be implied. Courts have been expanding the horizons of
natural justice. Thus, certiorari has been issued to authorities for cancellation of the examination
results of students, or expulsion of a student by a university, an enquiry commission under the
Commission of Enquiry Act, industrial tribunals, election tribunals, dismissal from service etc.
A writ of certiorari or prohibition is issued only on such grounds as if the quasi-judicial body
acts under an invalid law, for correcting errors of jurisdiction as when it acts without jurisdiction,
or in excess of it or fails to exercise it.
The writ is also issued for correcting an error of law apparent on the face of the record. More
formal and technical errors of law are not sufficient to attract the writ. The writ jurisdiction is
supervisory and the court exercising it is not to act as an appellate court.

Short Answers Questions Answers

Q.1. Explain the provisions of the Constitution relating to the Privileges and
immunities of Parliament and its members?

Ans. Privilege has long been an important element of our Constitution, safeguarded by both the
courts and the common law. The concept of Parliamentary Privilege originated in England at a
time when the English House of Commons enjoyed little protection from interference,
intimidation and, at times, even physical force exerted by the King, his Ministers and the House
of Lords
Meaning and Definition of Parliamentary Privileges
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Parliamentary privilege is a legal immunity enjoyed by members of certain legislatures, in which
legislators are granted protection against civil or criminal liability for actions done or statements
made in the course of their legislative duties The classic definition of parliamentary privilege is
found in Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of
Parliament:
“Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively
and by Members of each House individually, without which they could not discharge their
functions, and which exceed those possessed by other bodies or individuals. Thus privilege,
though part of the law of the land, is to a certain extent an exemption from the general law.’’
These “peculiar rights” can be divided into two categories: those extended to Members
individually, and those extended to the House collectively. Each grouping can be broken down
into specific categories. For example, the rights and immunities accorded to Members
individually are generally categorized under the following headings:
• Freedom of speech;
• Freedom from arrest in civil actions;
• Exemption from jury duty;
• Exemption from attendance as a witness.
Constitutional Provisions relating to Parliamentary Privileges
• The powers, privileges and Immunities of the Indian Parliament and the State
Legislatures :
Article 105 deals with Parliament, Article 194 deals with State legislatures.
In India Article 105 of Constitution of India deals with Powers, privileges, etc., of the Houses of
Parliament and of the members and committees thereof. The Constitution expressly mentions
two privileges:
(a) Freedom of speech in the legislature, and
(b) Right of publication of its proceedings.
The publication of the proceedings of the Parliament under the authority of Parliament is thus
completely protected and is immune from being challenged in any Court of law on whatsoever
grounds. On the other hand the publication of proceedings without permission and authority of

63
Parliament amounts to contempt of its privilege. This privilege of Parliament has always been
the question of controversy in India.
Legislative vs Judiciary
The conflicts involving the question of Parliamentary privileges referred to the Judiciary reflects
the constraints the Judiciary is facing to strike this balance. The dichotomy of the judgments
delivered on the issue has added to the vagueness of the Parliamentary privileges in India. The
following presents the synopsis of the judicial verdicts on various privileges exercised by the
Parliament.
Freedom of Speech
The essence of Parliamentary democracy is a free, frank and fearless discussion in Parliament.
For a deliberative body like a House of Parliament, freedom of speech within the House is of
utmost significance. To enable members to express themselves freely in the House, it is essential
to immunize them from any fear, that they can be penalized for anything said by them within the
House.
In India freedom of speech in Parliament has been expressly safeguarded byArt.105 (1) and (2).
Art.105 (1) says, ‘subject to the provisions of this Constitution and to the and standing orders
regulating the procedure of Parliament, there shall be freedom of speech in Parliament’.
The corresponding constitutional provision for the state legislature is Art. 194(1),Art.105(2)
Confers immunity in relation to proceedings in Courts It says that no member in Parliament is
liable to any proceedings in any court in respect of anything said, or any vote given in Parliament
or a Committee thereof. The word proceeding means any preceding civil, criminal or even writ
proceedings nothing said in the House is actionable or justifiable. The Constitution provides for a
separation of powers between Parliament and the Judiciary by demarcating their roles and
responsibilities
M.S.M. Sharma V. Shri Krishna Sinha ( Search light case ). It held that Articles 105(3) and
194(3) stand in the same supreme position as provisions of Part III of the Constitution
(i) The Judiciary may guard against the unconstitutional exercise of power by Parliament,
and
(ii) Parliament may legislate on or act as a check in matters related to the Judiciary.

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Power to Punish for its Contempt
The house has a power to punish a person, whether its member or outsider, for its contempt or
breach of privilege. A House can impose the punishment of admonition, reprimand, and
suspension from the service of the House for the session, fine and imprisonment. This power to
commit for contempt is truly described as the Keystone of parliamentary privilege, for it issued
by the House to protect its privileges, punish their violation, and vindicate its authority and
dignity.
The Keshav Singh’s case is the landmark case in the Constitutional history of India relating to
the law of Parliamentary privileges. The Judgment delivered in this Presidential reference by the
Apex Court is truly an encyclopedia of law on Parliamentary privileges in India. The Court, even
knowing the fact that the opinion given in the reference has no binding force, discussed several
issues relating to the Parliamentary privileges
M.S.M. Sharma V. Shri Krishna Sinha.( Search light case ). It held that Articles 105(3) and
194(3) stand in the same supreme position as provisions of Part III of the Constitution
Q. 2. Discuss the concept of Judicial Review in our Indian Constitution?
Ans. Judicial review is a process under which executive or legislative actions are subject to
review by the judiciary. A court with authority for judicial review may invalidate laws acts and
governmental actions that are incompatible with a higher authority: an executive decision may be
invalidated for being unlawful or a statute may be invalidated for violating the terms of a
constitution. Judicial review is one of the checks and balances in the separation of powers: the
power of the judiciary to supervise the legislative and executive branches when the latter exceed
their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial
review may differ between and within countries. In India, a judicial review is a review of
government decisions done by the Supreme Court of India. A court with authority for judicial
review may invalidate laws acts and governmental actions which violates the Basic features of
Constitution.
The Establishment of Judicial Review

Judicial review is one of the distinctive features of United States constitutional law. In 1803,
the Supreme Court, led by Chief Justice John Marshall, decides the landmark case of William
65
Marbury versus James Madison, Secretary of State of the United States and confirms the legal
principle of judicial review–the ability of the Supreme Court to limit Congressional power by
declaring legislation unconstitutional–in the new nation.
Concept of Judicial Review

A court's authority to examine an executive or legislative act and to invalidate that act if it is c
ontrary to constitutionalprincipleIn the United States, the supremacy of national law is establish
ed by Article VI, Clause 2, of the U.S. Constitution. Called the supremacy clause, it states that "
This Constitution and the laws of the United States which shall be made in pursuancethere
of … shall be the supreme law of the land." It goes on to say that, "judges in every state shall be
bound thereby."
Thismeans that state laws may not violate the U.S. constitution and that all state courts must up
holdthe national law State courts uphold the national law through judicial review.
Q. 3. Discuss the “doctrine of Collective Responsibility.”
Ans. Collective Responsibility
1. Article 72 of the Constitution provides that there shall be a Cabinet which shall have the
general direction and control of the government of The Bahamas and shall be collectively
responsible therefor to Parliament. This doctrine of collective responsibility is the basis on which
the system of ministerial government rests. Without it the ministerial system cannot be effective
and cannot survive as a method of Government developed to work in accordance with the wishes
of the people.
2. All major decisions of policy must be made by Cabinet.
3. A fundamental principle of "Cabinet Government" is unity. It is important to present a united
front to the public; if any Minister feels conscientiously unable to support a decision taken by
Cabinet, he has one course open to him and that is to resign his office.
4. This principle is not affected by the assignment of responsibility to individual Ministers.
Decisions made by a Minister about any matter in his portfolio, when it is not within policy
already decided by Cabinet, must always be such as could, without doubt, be defended and
supported by Cabinet.

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5. All major matters of policy, and matters on which there may be doubt regarding the attitude of
other members of Cabinet, and all subjects on which there is unresolved difference of opinion
between Ministries, should be put before Cabinet. Moreover, should any Minister not agree with
an action taken by a fellow Minister without prior consultation with Cabinet, Cabinet will decide
whether or not the action should be upheld.
6. So long as a Minister remains a Minister he may not speak in public or in private against a
decision of Cabinet or against an individual decision of another Minister. As he is a member of
the Government Bench in the House of Assembly or in the Senate, he must not speak or vote on
any measure debated in either House otherwise than on the lines agreed by Cabinet.
7. No Minister may, in the Parliament or in public speeches, commit the Government to any
course of action save in accordance with the policy of Cabinet.
8. A Minister should bear these principles in mind in making public speeches and not commit the
Government in advance to any legislation or major policy which has not been put before Cabinet
and approved directly or indirectly.
9. In many Acts there is provision for the Governor-General or the Minister to make subsidiary
legislation such as Rules, Regulations or Orders. If the power lies with the Governor-General,
the Minister responsible for the subject would put the draft subsidiary legislation to Cabinet.
Similarly, unless the matter is very minor, a Minister, having the authority to make subsidiary
legislation, would put the draft to Cabinet for collective approval.
10. Bearing these points in mind, Ministers and their Permanent Secretaries should ensure that
major policy matters are referred to Cabinet while sparing that body the need to consider routine
or trivial subjects.

Very Short Questions Answers

Q 1. Define the Discretionary power of the Governor of the State.

Ans. Discretionary powers

Discretionary powers exercised by administrative and legal authorities are permissive, and not
binding. These powers are granted to these officials by statute or delegation. Discretionary
powers do not impose an obligation on a decision-maker to exercise them or to exercise them in
a particular manner. The Governor is the Constitutional head of the States. According to the
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Constitution, whether a matter of his discretion, the decision of the Governor is final and the
validity of anything done by him as a matter of his discretion cannot be questioned.

State Governor has constitutional discretion in the following cases:

i. Reservation of a Bill for the Consideration of the President;

ii. Recommendation for the imposition of the President’s Rule in the State;

iii. Exercising his functions as the administrator of an adjoining union territory.

iv. In the States of Assam, Meghalaya, Tripura and Mizoram the Governor determines the
amount payable to an autonomous Tribal District Council.

v. Seeking information from the Chief Minister with regard to the administrative and legislative
matters of the state. In addition to these, a Governor may exercise his discretionary powers to
meet political exigencies in the following cases

a. Appointing the Chief Minister when no party has acquired clear cut majority in the State
Legislative Assembly and when the Chief Minister dies when in office.

b. Dismissal of the Council of Ministers when they lose the confidence of the State Legislative
Assembly.

Q. 2. Explain the Procedure for removal of the Governor of the State ?

Ans. The Constitutional position on the removal of the Governor is that a Governor of a state is
an appointee of the President, and he or she holds office “during the pleasure of the President”
(Article 155 and 156). If the Governor continues to enjoy the pleasure of the President, s/he can
have a normal term of five years. Now ,the President is bound by the aid and advice of the
Council of Ministers under Article 74, so it is the Central Government which appoints or
removes the Governor.
The Supreme Court interpreted the constitutional provisions in the B. P. Singhal vs Union of
India and laid down some binding guidelines:
1. 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.

68
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.
2. 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 removal of Governors, or to appoint more favorable persons to this post.
3. 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.

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UNIT-III
Detailed Questions Answers
Q. 1. Describe in detail legislative, administrative and financial relations between
Union and state under the Constitution of India.
OR
Q. 1. Discuss the recommendations of Sarkaria Commission on Center-State
Relations.
Ans. Centre-State Relations in India
Thus India's federal system originated in the demands of the Indian national movement for an
all-India central government capable of reconciling regional pulls and pressures. The urgent need
for national unity was further underlined by the trauma of the partition. Therefore, deliberately
the Constitution of India has an inbuilt tilt for a stronger Centre. Constitutionally and politically,
India's federal system is of the Union-type, that is, a system in which the structural-functional
balance is in favour of the Centre. An ideal federal system has both aspects: mutual trust and
agreement to live together. Federalism in India has provided an institutional core. Thus the
federalism is clearly more than just relations between the centre and the states. The federal
principle of government has far reaching implications, going way beyond centre-state relations.
Centre-State Relations
Articles from 245 to 293 in Part XI of the Constitution deal with the legislative relations
between the Centre and the state. Centre and the states are supreme in their respective fields, the

70
maximum harmony and coordination between them is essential for the effective operation of the
federal system.

Centre-State Relations

Legislative Relations Arts. 245-255

Legislative powers which deal with law making are formally divided between the centre and
states in the Indian Constitution. The Union list has given the centre exclusive authority to act in
matters of national importance. The parliament alone has the power of making laws with respect
to 97 subjects enumerated in this list. These include matters like defence, foreign affairs,
railways, currency, election etc. They are included in this list because we need a uniform policy
on these matters throughout the country. The State list contains subjects of State and local
importance such as police, trade, commerce, agriculture and irrigation. State legislatures have the
exclusive powers of making laws with As quoted in B.Arora and N.Mukharji, Jurisdiction means
the area over which someone has legal authority. The area may be defined in terms of
geographical boundaries or in terms of certain kinds of subjects.
Aspect to the 61 subjects enumerated in the state list. Concurrent List includes subjects of
common eeriest to both the Union Government and the State governments, such as education,
forest, trade u ions, marriage, adoption and succession. The Union as well as the State
Governments can make laws on the subjects mentioned in this list. However, in case of a conflict
between the central law and state law with regards to subjects in the Concurrent List, the central
law prevails over the state law. Furthermore, the Union government has the power to legislate on
71
the 'residuary' subjects. However, the Constitution provides for certain occasions when which the
central government can legislate even on matters specifically mentioned in the state list. These
instances are:
• If the Rajya Sabha authorizes the Parliament by a two-third majority to legislate on a
subject mentioned in the state list, the Parliament can do so; however, this would remain,
in force, for a maximum period of one year at a time.
• If the legislatures of two or more states think it desirable that on any matter mentioned in
the state list, the Parliament should make a law for them; they can authorize it to do so.
But in this case, that law would be applicable only in those states which have passed such
a resolution.
• During Emergency, Parliament gets the power to make laws for the whole of, or any part
of, the territory of India with respect to any matters enumerated in the state list.
• The Parliament is also empowered by the Constitution to override the normal scheme of
distribution of legislative powers for implementing any treaty, agreement or convention
arrived at with a country or at an international conference, association or other body.
• Certain types of bills may be reserved by the Governor of a state for Presidential assent.
Besides, there are certain matters within the state list and concurrent list on which the
states must take the previous sanction of the President before making laws on them.
• The parliament's right to alter, admit new states to the Union or new states as mentioned
in First Schedule. The parliament is made competent even to increase or decrease the area
of a state, change its name, alter its boundaries, or cause a state. to completely disappear
by merger or integration with adjoining sates.
• The centre has purposely been made strong keeping in view the disturbed socio-economic
and political conditions as well as growing international tension prevailing at the time
Constitution was being framed.
Administrative Relations Art 256-263
As in legislative sphere, the Union has pre-eminent position in administrative sphere too-
The Union has the power to give direction to the state for any of the following purposes:

72
 • To ensure compliance with the laws made by Parliament and any existing law which
apply in that state;
• To ensure that the executive power of the state is so exercised as not to impede or
prejudice the exercise of the executive power of the Union;
• To secure the construction and maintenance of means of communication of national or
military importance;
• To ensure the protection of the railway within the state.
The Centre exercises administrative control over the, states through the instrumentality of All
India Services like IAS, IPS etc. The Constitution provides that to look after the administration
of the dual polity, both the centre and states are empowered to form their own civil services. The
All India Services, recruited on an all India basis, help ensure national integration, administrative
uniformity and cohesion.
With regard to two matters, adjudication of disputes and inter-water disputes, the union is
empowered to play the role of an arbiter in inter-state matters. The President may establish an
Inter-State council to enquire into, and make recommendations upon disputes between states. No
such council has been appointed till date.
The members of the state Public Service Commission are appointed by the state government but
they can be removed by the President after inquiry by the Supreme Court.
Besides, the Constitution provides for inter-level delegation of functions which makes operation
of federal principles adequately flexible. There is a framework of voluntary co-operation at
administrative level to sort out mutual differences between the centre and the states.
The Zonal Council

To counteract the divisive forces, the then PM, Nehru mooted an idea of having Zonal Council to
resolve such problems. The whole country has been divided into five zones, viz. the Northern
zone, the Southern zone, the Central zone" the Eastern zone and the Western zone. The idea is to
provide a mechanism and forum through which the regional differences could be mutually
resolved. They also facilitate co-operation in economic and social development in each zone.
The Union Home Minister is the ex-officio chairman of these zonal councils. Besides him, the

73
Chief Ministers of each of the states in the zone act like members and attend its meeting as and
when called. It is, however a purely advisory body.
Financial Relations Arts. 264 - 293
The financial relation between the union and the states pertains to the distribution of revenues –

All possible sources of taxation have been listed and allowed either to the centre or to the states.

These are -

• Certain items of revenue in the state list which are levied collected and appropriated by
the states, Le. octroi etc.

• Certain items of revenues in the Union List which are levied collected and appropriated
by the Union, e.g. custom duties.

• Certain duties levied by the Union but collected and appropriated by the states e.g. stamp
duties.

• Certain taxes levied and collected by the Union but assigned to the states, e.g. succession
and estate duties, taxes on railway fares and freights, ,etc.

• Certain taxes levied and collected by the Union and distributed between the Union and
the States e.g. excise duty etc.

• In addition, the Constitution empowers parliament to pay, out of Consolidated Fund of

India, certain sums every year as grant-in-aid of revenues to those states which need
assistance. These grants may be different for different states and they are mainly based on
the recommendation of Finance Commission.

• The Parliament is authorized by the Constitution to increase certain duties or taxes

mentioned above by a surcharge for exclusive Union purpose.

• The centre and states have independent powers of borrowing. In the case of states the
consent of the centre is required for such borrowing.

Issues in Centre-State Relations

Constitutionally speaking, India has a federal form of Government t in reality this system has
been unitary. The Constitution itself contains certain provisions which put acts in a subsidiary
position. These are: Article 155, which gives power to the Central Government to appoint
74
Governor of its choice; Article 248, which gives residuary powers to the Centre; Article 249,
which provides that the Rajya Sabha in the national interest can authorize the Union Parliament
to make laws with respect to state subjects; Article 250, which authorizes Parliament to legislate
on state subjects during national emergency; Articles 256&257,which require that the states use
their executive powers to ensure compliance with the Union laws and not to impede and
prejudice the exercise of the executive powers of the Union; Article 356 which envisages the
presidential takeover of state administration in event of the failure of the constitutional
machinery therein; and Article 360, which makes provisions for financial emergency.
These eight Articles have brought-centre-state relations into confrontations on the charge that the
Union government interferes politically in the day-to-day administration of the states. In
addition, the Union Government may misuse its powers and send armed forces or paramilitary
forces to the state on one pretext or the other without the concerned states consent. Below we
will discuss, in details, the contentious issues between the Centre and the States.
Sarkaria Commission
The three-member Commission, consisting of Justice R.S. Sarkaria (Chairman), B.Sivaraman
and S.R.Sen (Members), submitted its report, covering 5000 pages, to the Prime Minister on
October 20, 1987, to report on the entire gamut of the Centre-State relations. The Commission
refrained from making any radical recommendations on institutional structures. It outright
rejected the demand for curtailing"'! Powers of the centre and maintained that a strong centre is
necessary to preserve national unity and Integrity of the country. In it view the fundamental
provisions of the Constitution have done reasonably well and withstood the stresses and strains
of' the heterogeneous society like ours.
The Commission felt that the supremacy of Parliament, as envisaged in Arts. 246 and 254, is'
essential and needs no modification. However, the Commission has favored amendments to the
Constitution to provide for sharing of some taxes, hitherto under the central government, such as
corporation tax and levy of consignment tax on advertisements in broadcasting. The Commission
has made a strong case for Inter State Council, which it named Inter-Governmental Council,
under Art.263.The National Developmental Council, the Commission recommends, should be
retained and the Zonal Council activated. The most far reaching suggestion has been given as

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regards the role of Governor and suggested a need to have comprehensive guidelines followed
for the appointment of Governor to make it apolitical, as far as possible. The commission has
stipulated that a person to be appointed as a Governor should satisfy the following criteria:-
He should be an eminent person, normally from outside the state and should not be connected
with the local politics of the state.
The purview of consultation before appointing anyone for this post, must include the Vice
President of India and the Speaker of the Lok Sabha.
The tenure of office should not be disturbed except for some compelling reasons.
As far as misuse or abuse of Art.356 is concerned, the Commission categorically asserted that, it
should be invoked very sparingly and only as a measure of "last resort". The centre should step
in only when all available alternatives fail to prevent a breakdown of constitutional machinery of
the state. The Governor's report which forms the backdrop on the basis of that any action is taken
be made as far as possible a "speaking document".
The Sarkaria Commission, to sum up, does not favour structural changes, regards the existing
constitutional schemes and provisions but stressed on the harmony between different agencies
and structures for smooth functioning of the political system.
The failure of the Central government to implement most of the recommendation given by the
Sarkaria Commission created deep schism between the Union and the States. The States
demanded more autonomy, particularly related with financial, internal security and governor's
role. The UPA government, which promised a commission to look after these issues, had
constituted the 'Omission on Centre State relation' under the chairmanship of Chief Justice (retd.)
M.M. Pi.mchhi.lt will examine, inter-alia, the devolution of powers between the Centre and
States; the Centre's power to send security forces in case of problems arising due to communal
riots; and the jurisdiction of the Centre vis-a-vis the States in implementation of mega projects
and inter-linking of rivers.
Q. 2. Describe the liability of the Union or the States for torts and breach of
Contracts? Also discuss the provisions of immunity as laid out in Article 361 of
the Indian Constitution.

Ans. The State Liabilities-Tortious and Contractual

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Suits by or against the State

Article-300 of the Constitution says that the Government of India may sue or be sued in the
name of Union of India and Government of a State may sue or be sued in the name of the State,
or of the Legislature of the State. Thus, the Constitution makes the Union and the States as
juristic persons capable for owning and acquiring property, making contracts, carrying on trade
or business, bringing and defending legal action just as private individuals. The legal personality
of the Union of India, or of a State of Indian Union is thus placed beyond doubt by the express
language of Article-300. The Government of India can be sued in relation to its affairs so long as
the Parliament does not make a law providing otherwise [Article-300].
Liability in the law of contract

Article-299 authorizes the Government of India to enter into contract for any purpose. A contract
is binding on the Government of India if the following three conditions are fulfilled i.e. (1) it
must be expressed to be made by the President or by the Governor of the State as the case may
be, (2) it must be extended on behalf of the President or the Governor as the case maybe, and (3)
its execution must be by such person and in such manner as the President or Governor may direct
or authorise. Failure to comply with these conditions nullifies the contract and renders in void
and unenforceable. The contractual liability of the State under Indian Constitution is the same as
that of an individual under ordinary law of contracts. Although the contracts are made in the
name of the President he is not personally liable in respect of any contract.
Liability in the law of torts
Article-300(1) provides that the Government of India may be sued in relation to its affairs
subject to any law made by an Act of the Parliament. Thus, so long as the Parliament or the State
Legislature do not enact a law on the point the legal position in this respect is the same as existed
before the commencement of the Constitution.
Before the present Constitution came into force the East India Company and thereafter the
Government of India Act, 1858 which transferred the Government of India from East Indian
Company to the British Crown with its rights and liabilities, the Secretary of the State were
liable, on behalf of the Crown for the tortious acts of their servants committed in the course of
their employment. Section-65 of the Government of India Act, 1858 provided that the Secretary
77
of the State could be sued as it could be done against the East India Company. Section-65 of the
Government of India Act, 1858, was continued and we find it as Section-176 of the
Government of India Act, 1935. In the present Constitution the corresponding provision is
Article-300.
In P. and O. Steam Navigation Co. v. Secretary of the State for India, a servant of the plaintiffs
(company) was travelling from Garden Reach to Calcutta in a carriage driven by a pair of horses.
The accident took place when the coach was passing through the government dockyard. Some
government workmen employed in the government dockyard were carrying a heavy piece of iron
rod for the purpose of repairing a steamer. The men carrying the iron rod were going in the
middle of the road. When the carriage of the plaintiff drove up nearer the coachman gave a
warning to the men carrying the iron rod and the coachman slowed its speed. The men carrying
the iron rod attempted to get out of the way. Those in front tried to go on the one side of the road
while those behind tried to go the other side of the road. The consequence of this was loss of
time, bringing the carriage close to them before they had left the centre of the road. Seeing the
horses and carriage they got alarmed and suddenly dropped the iron rod and ran away. The iron
rod fell resulting in injuries to one horse which fell on the iron rod. The company filed a suit
against the Secretary of the State for the damages caused by the negligence of the servants
employed by the Government of India.
The court held that the Secretary of the State was liable for the damages caused by the
negligence of government servants, because the negligent act was not done in the exercise of a
sovereign function. The court drew a distinction between acts done in the exercise of sovereign
power and acts done in the exercise of non sovereign function i.e. acts done in the conduct of
undertakings which might be carried on by private individuals without having such power. The
liability could only arise in case of non sovereign functions. The East India Company had a two
fold character i.e. (a) as a sovereign power and (b) as a trading company. The liability of the
company could only extend in respect of its commercial dealings and not to the acts done by it in
exercise of delegated sovereign power. In the present case the damage was done to the plaintiff
in the exercise of non sovereign function i.e., the maintenance of dockyard which could be done
by any private individual without any delegation of sovereign power and hence the Government

78
was liable for the torts of its employees. The above principle has been approved and applied by
the Supreme Court in the following cases:
In State of Rajasthan v. Vidyawati, the driver of a jeep owned and maintained by the State of
Rajasthan for the official use of the Collector of a district, drove it rashly and negligently while
bringing it back from the workshop after repairs and knocked down a pedestrian and fatally
injured him. As a result of the injuries the pedestrian died. His widow sued the State of Rajasthan
for damages. The Supreme Court held that the state was liable and awarded damages. The
accident took place while the driver was bringing it back from the workshop to the Collector’s
residence. It cannot be said that he was employed on a task which was based on delegation of
sovereign or governmental powers of the state. His act was not an act in the exercise of a
sovereign function.
Now we have by our Constitution a republican form of government. One of the objectives is to
establish a socialist state. There is no justification in principle or in public interest that the State
should not be held liable vicariously for the tortious acts committed by its servants. Obviously,
the Supreme Court was of the view that immunity from liability of the State for tortious acts
committed by its servants when exercising sovereign powers delegated to it cannot be sustained.
In Kasturi Lal v. State of U.P. a person was taken into custody on suspicion of being in
possession of stolen property. His property including certain quantity of gold and silver was
taken from him and kept in the Malkhana till the disposal of the case. The gold and silver was
misappropriated by a police constable who fled to Pakistan. The appellant sued the State of Uttar
Pradesh for return of the gold and silver and as alternative claimed damages for loss caused by
negligence of the Meerut police. The state contended that no liability would accrue for acts
committed by a public servant where such acts were related to the exercise of sovereign power of
the state. The Supreme Court held that the state was not liable. The Court approved the
distinction made in the Steam Navigation Company case between sovereign and non-sovereign
functions of the State. The court however made a strong plea for enactment of a legislation to
regulate and control the claim of the state for immunity on the lines of the Crown Proceedings
Act of England.
New dimension in welfare republican state

79
no distinction between sovereign and non-sovereign functions
In N. Nagendra Rao and Co. v. State of A.P., the Supreme Court held that when due to the
negligent act of the officers of the state a citizen suffers any damage the state will be liable to
pay compensation and the principle of sovereign immunity of state will not absolve him from
this liability. The court held that in modern concept of sovereignty the doctrine of sovereign
immunity stands diluted and the distinction between sovereign and non sovereign functions no
longer exists. The court noted the dissatisfactory condition of the law in this regard and
suggested for enacting appropriate legislation to remove the uncertainty in this area. Rejecting
the contention of the state the Supreme Court held that the state was liable vicariously for the
negligence committed by its officers in discharge of public duty conferred on them under a
statute. As regards the immunity of the state on the ground of sovereign function, the court held
that the traditional concept of sovereignty has undergone a considerable change in the modern
times and the line of distinction between sovereign and non sovereign powers no longer survives.
No civilised system can permit an executive as it is sovereign. The concept of public interest has
changed with structural change in the society. No legal system can place the state above law as it
is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of the
officers of the state without remedy. The need of the state to have extraordinary powers cannot
be doubted. But it cannot be claimed that the claim of the common man be thrown out merely
because the act was done by its officer even though it was against law. Need of the state, duty of
its officials and right of the citizens are required to be reconciled so that the rule of law in a
welfare state is not shaken. In a welfare state functions of the state are not only defence of the
country or administration of justice or maintaining law and order but it extends to regulating and
controlling the activities of the people in almost every sphere, educational, commercial, social,
economic, political and even marital. The demarcation between sovereign and non sovereign
powers for which no rational basis survives has largely disappeared. Therefore, barring functions
such as administration of justice, maintenance of law and order and repression of crime etc.
which are among the primary and unalienable functions of a constitutional government, the state
cannot claim any immunity.

80
The court further said that sovereign immunity was never available if the state was involved in
commercial or private function nor it is available where its officers are guilty of interfering with
life and the liberty of a citizen not warranted by law. In both the cases the state is vicariously
liable to compensate to the wronged person. The doctrine of sovereign immunity has no
relevance in the present day context when the concept of sovereignty has itself undergone drastic
change. Sovereignty is now with the people. The legislature, the executive and the judiciary have
been created and constituted to serve the people. According to modern thinking the state is
treated in performance of its functions like a private company. It is therefore obviously liable for
negligence of its officers.
In Common Cause v. Union of India, the Supreme Court again examined the doctrine of the
sovereign immunity and rejected it. The Court held that the doctrine of sovereign immunity as
laid down in P. & O. Steam Navigation case is outmoded. It said that in modern times when the
state activities have been considerably increased it is very difficult to draw a line between its
sovereign and non sovereign functions. The increased activities of the state have made a deep
impression on all facets of life and therefore the liability of the state must be made coextensive
with the modern concept of a welfare state. The state must be liable for all tortious acts of its
employees, whether done in exercise of sovereign or non sovereign functions.
In Peoples Union for Democratic Rights v. Police Commissioner, Delhi Police Headquarters, a
labourer was taken to the police station for doing some work. When he demanded wages he was
severely beaten and ultimately succumbed to the injuries. It was held that the state was liable to
pay Rs. 75000/- as compensation to the family of the deceased. Similarly in Saheli v. Commr. of
Police, the state was held to be liable for the tortious acts of its employees when a nine year old
boy had died due to the beating by the police officer acting in excess of power vested in him. The
court directed the Government to pay Rs. 75000/- as compensation to the mother of the child.
End of the doctrine of sovereign immunity
In State of A.P. v. Challa Ramkrishna Reddya prisoner who had informed the jail authorities
that he apprehended danger to his life but no action was taken on this information and no
measures were taken for his safety. He was killed in the prison. It was also found that a police
officer was a party to the conspiracy to kill the prisoner which was hatched in the prison. The

81
court held that in case of violation of fundamental right the defence of sovereign immunity which
is an old and archaic defence cannot be accepted and the government and the police are liable to
compensate the victim. The court said that the personal liberty should be given supremacy over
sovereign immunity. Such rights cannot be defeated by pleading the old and archaic defence of
sovereign immunity which has been rejected in several cases by the Supreme Court. In a large
number of cases the courts have ordered the Government to pay compensation to the victims of
torture for violation of their fundamental right guaranteed by Article-21 of the Constitution.
Defence of state immunity not available where fundamental rights are
violated
In Rudal Shah v. State of Bihar, the Supreme Court directed the State of Bihar to pay
compensation of Rs.35,000 to the victim of tortious acts done by government employees during
sovereign functions. The petitioner had already completed his sentence but the prison officials
did not take care to release him. He was kept in jail for 14 years even after his acquittal by the
court.
In Sebastian M. Hongray two persons were taken into custody by army authorities in Manipur
but they were not produced before the court in obedience of a writ of habeas corpus and it was
presumed that they must have met with unnatural death while in army custody. The Supreme
Court directed the Union Government to pay damages of Rs.1 lakh each to the wives of those
persons.
In Bhim Singh v. State of Jammu and Kashmir, the Supreme Court awarded a sum of Rs.
50,000 to the petitioner as compensation for violation of his fundamental right of personal liberty
under Article-21 of the Constitution. The petitioner who was an MLA was illegally arrested and
detained in police custody and deliberately prevented from attending the session of the
Legislative Assembly.
In modern times the distinction between sovereign and non-sovereign functions has almost been
obliterated.
Q. 3. Explain the provisions relating to the Right to Property as laid down in
the Constitution of India.

Ans. RIGHT TO PROPERTY(Art. 300A)

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This provision has been added to the Constitution by the 44th Amendment Act, 1978. The
amendment takes away the right to property as a fundamental right and makes it only a
constitutional right which will be regulated by ordinary law. Consequently, Articles-19(f) and 31
have been deleted. However, Article-31 has re-appeared, though in part, as a new Article-300A
which provides that no person shall be deprived of his property save by authority of law.
Thus, the only condition to be complied with for the acquisition of private property under the
new Article-300A is a law of the legislature. The purpose for which property will be taken away
or whether any compensation will be paid both these conditions were necessary under repealed
Article-31, will be determined by the legislature.
The effect of the amendment is that for violation of his right to property under Article-300A a
person will not be entitled to invoke the writ jurisdiction of the Supreme Court under Article-32.
He will, however, be entitled to invoke the jurisdiction of the High Courts under Article-226.
In Jilubhai Nanbhai Khachar v. State of Gujarat, it has been held that the right to property
guaranteed by Article-300A is not a basic feature of the Constitution. It is only a constitutional
right.
The Janata Government led by Sh. Morarji Desai was committed to the electorate for the
abolition of the right to property as a fundamental right. Abolition of the right to property as a
fundamental right has, however, been criticized by H.M. Seervai. He is of the opinion that the
abolition of the right to property as a fundamental right would destroy other fundamental rights
which are embodied in the Constitution. A party pledged to restore fundamental rights of the
people cannot derogate a right which is essential for the existence of other valuable rights. The
fundamental right to the freedom of speech and expression (which includes the freedom of the
press), freedom of association, the freedom to move freely throughout the territory of India, to
settle in any part of India, to carry on business, profession or vocation in any part of India would
be destroyed if the right to property. is not guaranteed as a fundamental right and the obligation
to pay compensation for private property acquired for public purpose is not provided for.
Prof. P. K. Tripathi is however of the opinion that now the right to property of both the citizens
as well as the non citizens is more firmly and comprehensively secured under the Constitution
than ever before. It is so because an amendment in the existing position will now require not only

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the procedure laid down in Article-368 but also the consent of the States as prescribed in the
proviso to Article-368. The State will not be able to acquire private property without showing
public purpose and without paying full compensation or the market value of the property. Under
Entry 42 of the Concurrent list the Parliament and the State Legislatures have power to legislate
on acquisition or requisition of property. The condition inherent in this power is that it cannot be
used arbitrarily, i.e. it must used for public purpose and after paying full compensation to the
person deprived of his property. As long as these conditions were expressly laid down in
Article-31 they could not be read impliedly. Now that article is gone the implication becomes
operative. Under new Article-300A the only requirement is that there must be a law for depriving
a person of his property. This law must be a valid law and no law of acquiring a private property
can be valid unless it provides for acquisition or requisition of property for a public purpose and
unless there is a provision in such a law for paying compensation. It can be said that the validity
of a law passed under Article-300A for depriving a citizen of his private property can be
challenged on the ground that it does not provide for payment of compensation and is not for
public purpose. The law and procedure enacted and prescribed for the deprivation of personal
liberty must be just, fair and reasonable. So, if a law under Article-300A does not provide for
taking away private property of an individual for public purpose and for payment of
compensation it will be an unjust, unfair and unreasonable law and hence can be declared
unconstitutional and void.
Eminent Domain
Every Government has an inherent right to take and appropriate the private property belonging
to individual citizen for public use. This power is known as Eminent Domain. It is offspring of
political necessity. The welfare of the people or the public is the paramount law and public
necessity is greater than private. Thus, property may be needed and acquired under this power
for Government office, libraries, slum clearance projects, public schools, colleges and
universities, public highways, public parks, railways, telephone lines, dams, drainages, sewer and
water systems and many other projects of public interest, convenience and welfare. The exercise
of the power of compulsory acquisition by the state has been recognized in the jurisprudence of

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all civilised countries as conditioned by public necessity and payment of compensation. But the
power is subject to restrictions provided in the Constitution.
The new Article-300A imposes only one limitation on the power of Eminent Domain i.e.
authority of law.
Meaning of Property
The word property as used in Article-31 should be given a liberal meaning and should be
extended to all those well recognized types of interests which have the insignia or characteristic
of property right. It includes money, interest in property, e. g., and interest of an allot tee,
licensee, mortgagee or lessee of a property. The Mahantship of a Hindu Temple and
shareholders’ interests in the company are recognizable interests in property. The right to receive
pension is property.
Pension and gratuity are not bounty to be distributed by the Government to its employees on
their retirement but are valuable rights and property and any delay in settlement and payment
thereof must be visited with the penalty of payment of interest at the current market rate. The
liability to pay penal interest on these dues commences at the expiry of two months from the date
of retirement. In the instant case, the delay in payment of the above retirement benefits was due
to the non production of last pay certificate by the issuing authority hence the Government was
liable to pay interest.
No deprivation of property except by authority of law
Article-31(1) provided that no person shall be deprived of his property except by the authority
of law. This means that the state has authority to take away the property of an individual but it
can do so only by the authority of law. The word law as used in Article-300A makes it clear that
the deprivation of the property can only be made by the authority of law, be it an Act of
Parliament or State Legislature or a rule or statutory order having force of law and not by an
executive order. In Wazir Chand v. State of H.P., it was held that illegal seizure of goods in
possession of the petitioner in India under no authority of law at the instance of the Jammu and
Kashmir police was clearly an infringement of the fundamental right under Article-13(1). The
new Article-300A lays down similar condition for taking away the private property of an
individual. A person can be deprived of his property only by the authority of law.
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Short Questions Answers

Q.1. Write a short note on Doctrine of Territorial Nexus?

Ans. Doctrine of Territorial Nexus

Article 245 (2) of the Constitution of India makes it amply clear that ‘No law made by
Parliament shall be deemed to be invalid on the ground that it would have extra- territorial
operation.’ Thus legislation cannot be questioned on the ground that it has extra-territorial
operation.
2. It is well-established that the Courts of our country must enforce the law with the machinery
available to them; and they are not entitled to question the authority of the Legislature in making
a law which is extra-territorial
3. Extra-territorial operation does not invalidate a law. But some nexus with India may still be
necessary in some of the cases such as those involving taxation statutes
Territorial Nexus and the State Legislature
The Legislature of a State may make laws for the whole or any part of the State. Now, this leaves
it open to scrutiny whether a particular law is really within the competence of the State
Legislature enacting it. There are plethora of cases that have stated that the laws which a state is
empowered to make must be for the purpose of that State
Thus, the Doctrine of Territorial Nexus has been applied to the States as well. There are two
conditions that have been laid down in this respect-
1. The Connection (nexus) must be real and not illusory.
2. The liability sought to be imposed must be pertinent to that connection.
If the above two conditions are satisfied, any further examination of the sufficiency of
Nexus cannot be a matter of consideration before the courts.
In various cases relating to taxation statutes, the courts have time and again stated that it is not
necessary that the sale or purchase should take place within the Territorial Limits of the State.
Broadly speaking local activities of buying or selling carried in the State in relation to local
goods would be sufficient basis to sustain the taxing power of the State, provided of course, such
activities ultimately result in concluded sale or purchase to be taxedThere is also a Presumption

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of Constitutionality that the Legislature is presumed not to have exceeded its constitutional
powers and a construction consistent with those powers is to be put upon the laws enacted by the
Legislature.
Extra-Territorial Operation
It is well-established that the Parliament is empowered to make laws with respect to aspects or
causes that occur, arise or exist, or maybe expected to do so, within the territory of India and also
with respect to extra-territorial aspects or causes that have an impact or nexus with India.“Such
laws would fall within the meaning, purport and ambit of grant of powers of Parliament to make
laws ‘for the whole or any part of the territory of India’ and they may not be invalidated on the
ground that they require extra territorial operation. Any laws enacted by the Parliament with
respect to extra territorial aspects or cause that have no nexus with India would be ultra vires and
would be laws made for a foreign territory.” This clearly indicates that as long as the law enacted
by the Parliament has a nexus with India, even if such laws require extra territorial operation, the
laws so enacted cannot be said to constitutionally invalid. It is only when the ‘laws enacted by
the Parliament with respect to extra territorial aspects or causes that have no nexus with
India’ that such laws ‘would be ultra vires.
Q. 2. Explain the Doctrine of Colorable Legislation ?

Ans. Doctrine of Colourable Legislation

The doctrine of colourable legislation is based upon the maxim that you cannot do indirectly
what you cannot do directly. The doctrine becomes applicable when a legislature seeks to do
something in an indirect manner what it cannot do directly.
The doctrine thus refers to the question of competence of the legislature concerned to enact a
particular law. The Constitution has already distributed legislative powers between the
Parliament and State Legislatures and each has power to enact within its legislative spheres,
marked out for it by the specific legislative entries. In respect of the subject-matter of a particular
legislation, the question may arise whether the legislature transgresses the limits imposed on it
by the Constitution. Such transgression may be patent, manifest or direct or may be disguised,
covert or indirect. In order to decide to which class of subjects of legislation a statute really
belongs, and so whether or not the legislature has transgressed the sphere assigned to it, what
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material is the substance of the legislation in question, its true nature and character not its
outward or formal appearance. To ascertain the true character and substance of the enactment,
courts take into consideration its object, purpose or design.
The doctrine, Subha Rao, J. has stated in Gullapalli Nageshwar Rao vs. State Road Transport
Corporation, AIR 1959 S.C. 308, “The legislature can only make laws within its legislative
competency. The legislative field is circumscribed by the scheme of distribution of powers.The
legislature cannot overstep the field of competency, directly or indirectly. The court will
scrutinise to ascertain whether the legislature by device purports to make a law which though in
forms appears to be within its sphere in effect or substance, reaches beyond it.”The doctrine of
colourable legislation has reference to competency, and not to the motives, bona fides or
malafides, of the legislature. The motives of a legislature in making a law are irrelevant. It is not
for the courts to decide and scrutinise the policy which led to the enactment within the ambit of
the legislature.
State of Bihar v. Kameshwar Singh, AIR 1952 S.C. 252, is the only case where a law has been
declared invalid on the ground of colourable legislation. In this case, Bihar Land Reforms Act,
1950, was held void on the ground that though apparently it purported to lay down any such
principle and thus indirectly sought to deprive the petitioner of any compensation.
Q. 3. Write a short note on Doctrine of Pith and Substance.

Ans. Doctrine of Pith and Substance

Pith and Substance means the true nature of law
This doctrine comes into picture when there is a conflict between the different subjects in
different lists. There is an interpretation of List 1 and List 2 of the Constitution of India. There
can be a situation when a subject of one list touché the subject of another List. Hence this
doctrine is applied then the real subject matter is challenged and not its incidental effect on
another field. The doctrine has been applied in India also to provide a degree of flexibility in
the otherwise rigid scheme of distribution of powers. The reason for the adoption of this
doctrine is that if every legislation were to be declared invalid on the grounds that it encroached
powers, the powers of the legislature would be drastically circumscribed.
Need for the Doctrine of Pith and Substance in the Indian Context
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The doctrine has been applied in India also to provide a degree of flexibility in the otherwise
rigid scheme of distribution of powers. The reason for adoption of this doctrine is that if every
legislation were to be declared invalid on the grounds that it encroached powers, the powers of
the legislature would be drastically circumscribed.
“It is settled law of interpretation that entries in the Seventh Schedule are not powers but fields
of legislation. The legislature derives its power from Article 246 and other related articles of the
Constitution. Therefore, the power to make the Amendment Act is derived not from the
respective entries but under Article 246 of the Constitution. The language of the respective
entries should be given the widest scope of their meaning, fairly capable to meet the machinery
of the Government settled by the Constitution. Each general word should extend to all ancillary
or subsidiary matters which can fairly and reasonably be comprehended in it. When the vires of
an enactment is impugned, there is an initial presumption of its constitutionality and if there is
any difficulty in ascertaining the limits of the legislative power, the difficulty must be resolved,
as far as possible in favour of the legislature putting the most liberal construction upon the
legislative entry so that it may have the widest amplitude.”
Incidental or Ancillary Encroachment
Case Prafulla Kumar Mukherjee v. The Bank of Commerce succinctly explained the situation
in which a State Legislature dealing with any matter may incidentally affect any Item in the
Union List. The court held that whatever may be the ancillary or incidental effects of a Statute
enacted by a State Legislature, such a matter must be attributed to the Appropriate List according
to its true nature and character.
Thus, we see that if the encroachment by the State Legislature is only incidental in nature, it will
not affect the Competence of the State Legislature to enact the law in question. Also, if the
substance of the enactment falls within the Union List then the incidental encroachment by the
enactment on the State List would not make it invalid However, the situation relating to Pith and
Substance is a bit different with respect to the Concurrent List. If a Law covered by an entry in
the State List made by the State Legislature contains a provision which directly and
substantially relates to a matter enumerated in the Concurrent List and is repugnant to the
provisions of any existing law with respect to that matter in the Concurrent List, then

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the repugnant provision in the State List may be void unless it can coexist and operate without
repugnancy to the provisions of the existing law.
Important Supreme Court Judgments on the Doctrine of Pith and Substance
There are hundreds of judgments that have applied this doctrine to ascertain the true nature of a
legislation. In the present post, I will discuss some of the prominent judgments of the Supreme
Court of India that have resorted to this doctrine.
The State of Bombay And Another vs F.N. Balsara This is the first important judgment of the
Supreme Court that took recourse to the Doctrine of Pith and Substance. The court upheld the
Doctrine of Pith and Substance and said that it is important to ascertain the true nature and
character of legislation for the purpose of determining the List under which it falls.
Mt. Atiqa Begam And Anr. v. Abdul Maghni Khan And Ors. The court held that in order to
decide whether the impugned Act falls under which entry, one has to ascertain the true nature
and character of the enactment i.e. its ‘pith and substance’. The court further said that “it is the
result of this investigation, not the form alone which the statute may have assumed under the
hand of the draughtsman, that will determine within which of the Legislative Lists the
legislation falls and for this purpose the legislation must be scrutinized in its entirety”.
Zameer Ahmed LatifurRehman Sheikh v. State of Maharashtra and Ors. Pith and Substance
has been beautifully explained in this case:
“This doctrine is applied when the legislative competence of the legislature with regard to a
particular enactment is challenged with reference to the entries in various lists. If there is a
challenge to the legislative competence, the courts will try to ascertain the pith and substance of
such enactment on a scrutiny of the Act in question. In this process, it is necessary for the courts
to go into and examine the true character of the enactment, its object, its scope and effect to find
out whether the enactment in question is genuinely referable to a field of the legislation allotted
to the respective legislature under the constitutional scheme.
This doctrine is an established principle of law in India recognized not only by this Court, but
also by various High Courts. Where a challenge is made to the constitutional validity of a
particular State Act with reference to a subject mentioned in any entry in List I, the Court has to
look to the substance of the State Act and on such analysis and examination, if it is found that in

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the pith and substance, it falls under an entry in the State List but there is only an incidental
encroachment on any of the matters enumerated in the Union List, the State Act would not
become invalid merely because there is incidental encroachment on any of the matters in the
Union List.”

Very Short Questions Answers

Q. 1. Write in brief about the legislative powers of Lists in our Constitution of
India?

Or

Write down the general scheme of distribution of legislative powers. Refers to

decided cases?

Ans. The Constitution of India has provided for a division of powers between the Central and
state governments. Under the Seventh Schedule, there are three lists – the Union, State and
Concurrent.
• Article 246 The Union List (99subjects) has a range of subjects under which the
Parliament may make laws. This includes defence, foreign affairs, railways, banking,
among others.
• Articles 249–253The State List (65 subjects) lists subjects under which the legislature of
a state may make laws. Public order, police, public health and sanitation; hospitals and
dispensaries, betting and gambling are some of the subjects that come under the state.
• Article 254 The Concurrent (52subjects) List includes subjects that give powers to both
the Centre and state governments. Subjects like Education including technical education,
medical education and universities, population control and family planning, criminal law,
prevention of cruelty to animals, protection of wildlife and animals, forests etc. However,
given that there can be conflict when it comes to laws passed by Parliament and state
legislatures on the same subject, the Constitution provides for a central law to override a
state law.
Q. 2. Define the Doctrine of Harmonious Construction

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Ans. Rule of Harmonious Construction
When there is a conflict between two or more statues or two or more parts of a statute then the
rule of harmonious construction needs to be adopted. 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 consistent of all the provisions of the statute should be adopted. In the case in
which it shall be impossible to harmonize both the provisions, the court’s decision regarding the
provision shall prevail.
The rule of harmonious construction is the thumb rule to interpretation of any statute. An
interpretation which makes the enactment a consistent whole, should be the aim of the Courts
and a construction which avoids inconsistency or repugnancy between the various sections or
parts of the statute should be adopted. The Courts should avoid “a head on clash”, in the words
of the Apex Court, between the different parts of an enactment and conflict between the various
provisions should be sought to be harmonized. The normal presumption should be consistency
and it should not be assumed that what is given with one hand by the legislature is sought to be
taken away by the other. The rule of harmonious construction has been tersely explained by the
Supreme Court thus, “When there are, in an enactment two provisions which cannot be
reconciled with each other, they should be so interpreted, that if possible, effect should be given
to both”. A construction which makes one portion of the enactment a dead letter should be
avoided since harmonization is not equivalent to destruction.
Harmonious Construction should be applied to statutory rules and courts should avoid absurd or
unintended results. It should be resorted to making the provision meaningful in the context. It
should be in consonance with the intention of Rule makers. Rule of Harmonious construction is
applicable to subordinate legislature also.
The Supreme Court laid down five principles of rule of Harmonious Construction in the
landmark case of CIT v Hindustan Bulk Carriers:
1. The courts must avoid a head on clash of seemingly contradicting provisions and they must
construe the contradictory provisions so as to harmonize them.
2. The provision of one section cannot be used to defeat the provision contained in another
unless the court, despite all its effort, is unable to find a way to reconcile their differences. When

92
it is impossible to completely reconcile the differences in contradictory provisions, the courts
must interpret them in such as way so that effect is given to both the provisions as much as
possible.
3. Courts must also keep in mind that interpretation that reduces one provision to a useless
number or dead is not harmonious construction.
To harmonize is not to destroy any statutory provision or to render it fruitless.

Q. Doctrine of repugnancy?
Ans. According to the Article 254 (1), any provision of law formed by the Legislature of the
State is repugnant to any provision of law formed by Parliament which is competent to enact or
to any provision of the prevailing law with reference to one among the matters enumerated
within the Concurrent list, then the law made by Parliament, whether passed before or after the
law made by the Legislature of such stage or, because the case could also be , the prevailing law
shall prevail and therefore the law made by the legislature of the State shall, to the extent of the
repugnancy be void.
Article 254 (1) only applies where there’s inconsistency between a Central Law and a State Law
concerning a subject mentioned within the Concurrent List. Article 254 of the Constitution is
merely applicable when the State law is in ‘Pith and Substance’ a law concerning an entry within
the concurrent list on which the Parliament has legislated. The biggest question is how the
repugnancy is to be determined? In M. Karunanidhi v. Union of India, consistent with all the
sooner decisions Fazal Ali, summarised the test of repugnancy. A repugnancy would arise
between the 2 statutes within the following situations consistent with him:

• It must be shown that there’s clear and direct inconsistency between the 2 enactments
(Central Act and State Act) which is irreconcilable, in order that they can’t stand together
or operate within the same field.
• There is often no repeal by implication unless the inconsistency appears on the face of the
2 statues.

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 • Where there’s no inconsistency but a statue occupying an equivalent field seeks to make
distinct and separate offences, no doubt of repugnancy arises and both the statutes still
operate within the same field.
• Where the two statutes occupy a selected field, but there’s room or possibility of both the
statutes operating within the same field without coming into collusion with each other ,
no repugnancy results.

UNIT-IV
Detailed Questions Answers
Q. 1. Discuss the provisions relating to Freedom of trade, commerce and
intercourse within the territory of India. What are the exception to this rule ?
Ans. Freedom of trade, commerce and intercourse within the territory of India
Introduction
A single, national, integrated, domestic market is necessary to make the Indian economy efficient
and competitive. Free flow of trade and commerce within and across inter-State borders is an
important pre-requisite for ensuring economic unity, stability and prosperity of a country.
Freedom of “trade, commerce and intercourse throughout the territory of India”, subject to
the other provisions of Part XIII, is assured and declared by Article 301 of the Constitution of
India. The object of this freedom is to disallow barriers between the States and within the
boundaries of States and make India a single unit with a view to creating an environment,
conducive to trade and commerce.
Analysis of Freedom of Trade under Article 301
“Trade, commerce and intercourse throughout the territory of India” Article 301 of the
Constitution of India provides freedom to those activities which falls under the categories of
trade, commerce and intercourse. Any activities not regarded as trade, commerce and

94
intercourse falls outside the purview of the freedom provided under Article 301. Activities which
are criminal or undesirable would not be protected by Article 301 of the Constitution of India.
Article 301 of the Constitution of India guarantees freedom of trade throughout the territory of
India. The Constitution of America and Australia, use the words “among the states‟.In
Australia, the draft provisions of Section 92 included the words “throughout the
Commonwealth.’’Article 301 does not refer specifically to inter-State or intra-State trade and
commerce; it says merely “throughout the territory of India‟. Absence of the words
“inter-State or intra-State‟ in Article 301, led the High Courts to interpret the Article
differently.
In State of Uttar Pradesh v. Ram Charan, where the State Legislature restricted intra-State
movement of wheat, it was held that an order regulating trade and commerce within the State
would not come within the purview of Article 301. It is submitted perhaps, that the above view is
not correct. Article 302 uses the words “between one State and another or within any part of
the territory of India.
In Automobile Transport Ltd. v. State of Rajasthan, the Supreme Court held that Part XIII
applies to both inter-State and intra-State trade and commerce.
The words “trade, commerce and intercourse throughout the territory of India should be read
as a composite expression to understand the true nature, scope and application of Article 301.
• The word “throughout‟ implies movement from one place to another and it is this
aspect of trade which comes under the protection of Article 301.
• “Shall be free” Article 301 of the Constitution of India providesthat the trade,
commerce and intercourse throughout the territory of India shall be free. A question
arise what the word “free‟ means. The meaning of the word “free” may occasion, as it
has already done, maximum controversy in relation to Article 301.
Freedom may be absolute or relative
Freedom may be absolute or relative.
Literally “absolute freedom” means freedom with no restriction of any sort, while relative
freedom or freedom-in-law pre-supposes some sort of control. “Absolute Freedom” might have
been appropriate in the age of laissez-faire, when individualism was an acceptable goal.

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Justice Gajendragadkar has observed in Atiabari casethat Article 301is not subject to other
provisions of the Constitution but only to the other provision of Part XIII.
It is submitted that the freedom guaranteed under Article 301 is subject to Article 302 to 305.
Article 302-305 are subject to the other provisions of the Constitution. Hence, logically, Article
301 becomes subject to other provisions of the Constitution.The Article 301 secures freedom of
trade against the State action, legislative as well as executive and it is a limitation on the
exercise of legislative and executive powers by the State and that a Court may enforce it, if
violated. The more important point for determination is the extent of the limitation and when it is
violated. This requires an analysis and interpretation of the words of Article 301.
“Subject to the other provisions of this Part”
The words of Article 301 “Subject to the other provisions of this Part” suggest that trade,
commerce and intercourse throughout the territory of India are not absolutely free but are
subject to other provisions of Part XIII provided in Article 302 to 307. The legislative power
conferred on Parliament as well as State Legislature under Articles 245 and 246 could be
exercised so as to interfere with trade, commerce and intercourse. The inclusion of free trade
clause in Article 301, prevents them from doing so. It imposes a general limitation on the
legislative powers found in the Seventh Schedule of the Constitution. This limitation is not an
absolute limitation.
Art. 302.Parliament may by law impose such restrictions on the freedom of trade, commerce or
intercourse between one State and another or within any part of the territory of India as may be
required in the public interest.
Art. 303. (1) Notwithstanding anything in article 302, neither Parliament nor the Legislature of a
State shall have power to make any law giving, or authorising the giving of, any preference to
one State over another, or making, or authorising the making of, any discrimination between one
State and another, by virtue of any entry relating to trade and commerce in any of the Lists in the
Seventh Schedule.
(2) Nothing in clause (1) shall prevent Parliament from making any law giving, or authorizing
the giving of, any preference or making, or authorizing the making of, any discrimination if it is
declared by such law that it is necessary to do so for the purpose of dealing with a situation

96
arising from scarcity of goods in any part of the territory of India.
Art. 304 Notwithstanding anything in article 301 or article 303, the Legislature of a State may
by law-
(a) impose on goods imported from other States [or the Union territories] any tax to which
similar goods manufactured or produced in that State are subject, so, however, as not to
discriminate between goods so imported and goods so manufactured or produced; and Freedom
of trade, commerce and intercourse.
• Power of Parliament to impose restrictions on trade, commerce and intercourse.
• Restrictions on trade, commerce and intercourse among States. In by the Constitution
(Seventh Amendment) Act, 1956, s. 29 and Sch.

(b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse
with or within that State as may be required in the public interest:
Provided that no Bill or amendment for the purposes of clause (b) shall be introduced or
moved in the Legislature of a State without the previous sanction of the President
• Art. 305. Nothing in articles 301 and 303 shall affect the provisions of any existing
law except in so far as the President may by order otherwise direct; and nothing in article
301 shall affect the operation of any law made before the commencement of the
Constitution (Fourth Amendment) Act, 1955, in so far as it relates to, or prevent
Parliament or the Legislature of a State from making any law relating to, any such matter
as is referred to in sub clause (ii) of clause (6) of article 19.]
Direct and immediate restriction
In Atiabari case, it was said that restrictions on freedom which are guaranteed by Article 301,
were such restrictions as directly and immediately restricted the free flow or movement of trade.
This concept of „direct and immediate effect‟ has been taken from Australia.
Regulatory and compensatory measures
In Atiabari Tea Co. Ltd. v. State of Assam, the Supreme Court took the view that all measures,
which directly and immediately restrict or impede the flow or movement of trade would come
within the inhibition of Article 301.

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But later on the Supreme Court realized that such an interpretation might seriously affect the
legislative power of the State Legislatures, which were conferred plenary powers with regard to
subject in List II, item 26, „Trade and commerce within the State‟, and held that regulatory or
compensatory measured did not affect the freedom of trade and commerce. A compensatory tax
is a tax imposed for the purpose of supplying trading facilities.
Justice Das, in the Automobile Case, pointed out certain examples of compensatory taxes. The
collection of a toll or a tax for the use of a road or for the use of a bridge or for the use of an
aerodrome does not come within Article 301 at all. In evolving this notion of a compensatory
tax, the Court seems to have followed the Australian Constitution.
Q.3. Discuss the scope of protection available to a Government employee under
Art 311 of the Indian Constitution.
Ans. Constitutional Protection to Civil
Introduction
Civil Servants are considered as the back bone of the administration. In order to ensure the
progress of the country it is essential to strengthen the administration by protecting civil servants
from political and personal influence. So provisions have been included in the Constitution of
India to protect the interest of civil servants along with the protection of national security and
public interest. Part XIV of the Constitution of India deals with Services under The Union and
The State. Article 309 empowers the Parliament and the State legislature regulate the
recruitment, and conditions of service of persons appointed, to public services and posts in
connection with the affairs of the Union or of any State respectively
Doctrine of Pleasure
In England a civil servant holds his office during the pleasure of the Crown. His services can
be terminated at any time by the Crown without giving any reasons.
Article 310 of the Constitution of India incorporates the English doctrine of pleasure by
clearly stating that every person who is a member of a defence service or of a civil service of
the Union or of an all India service or holds any post connected with defence or any civil post
under the Union, holds office during the pleasure of the President, and every person who is a

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member of a civil service of a State or holds any civil post under a State holds office during the
pleasure of the Governor of the State . But this power of the Government is not absolute.
Article 311 puts certain restriction on the absolute power of the President or Governor for
dismissal, removal or reduction in rank of an officer.
Article 311 reads as follows: (1) No person who is a member of a civil service of the Union or
an all India service or a civil service of a State or holds a civil post under the Union or a State
shall be dismissed or removed by a authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after
an inquiry in which he has been informed of the charges against him and given a reasonable
opportunity of being heard in respect of those charges
Civil Post- The protective safe guards given under Article 311 are applicable only to civil
servants, i.e. public officers. They are not available to defence personnel.
In State of U. P. v A. N. Singh the Supreme Court has held that a person holds a civil post if
there exists a relationship of master and servant between the State and the person holding the
post. The relationship is established if the State has right to select and appoint the holder of the
post, right to control the manner and method of his doing the work and the payment by it of his
wages or remuneration.
Dismissal and Removal - Dismissal and removal are synonymous terms, but in law they
acquired technical meanings by long usage in Service Rules. In case of dismissal a person is
debarred from future employment, but in case of removal he is not debarred from future
employment.
No Removal by Subordinate Authority - No removal by subordinate authority does not mean
that the dismissal or removal must be by the same authority who made the appointment or by his
direct superior It is enough if the removing authority is of the same or co- ordinate rank as the
appointing authority.
Reduction in Rank - Reduction in Rank means reduction from a higher rank or post to a lower
rank or post and not loosing place in rank or cadre.
In State of Punjab v Kishan Das The Supreme Court held that a mere reduction in the salary in
the same cadre is not reduction in rank. Inquiry It is mandatory under Article 311(2)to make an

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inquiry before the dismissal, removal or reduction in rank of a civil servant. In that inquiry the
civil servant has to be informed of the charges against him and given a reasonable opportunity of
being heard in respect of those charges. Informed of the charges Informed of the charges, means
serving of a charge sheet explaining the reasons of the charges leveled against the concerned
officer and statement of allegations against each charge.
Reasonable Opportunity of Being Heard
In Khem Chand v Union of India The Supreme Court held that the 'reasonable opportunity'
means:-
(a) An opportunity to deny his guilt and establish his innocence, which he can do only if he is
told what the charges leveled against him are and the allegations on which such charges as based.
(b) An opportunity to defend himself by cross examining the witness produced against him and
by examining himself in support of his defiance.
(c) An opportunity to make his representation as to why the proposed punishment should not be
inflicted on him
Termination of Service When Amounts To Punishment
The protection under Art 311 is available only when the dismissal, removal or reduction in
rank is by way of punishment
In Parshotham Lal Dhingra v Union of India The Supreme Court has laid down two tests to
determine whether termination is by way of punishment-
(1) whether the servant had a right to hold the post or the rank (under the terms of contract or
under any rule)
(2) whether he has been visited with evil consequences If yes it amounts to punishment.
Suspension
Suspension of a government employee is not a punishment. It is neither dismissal or removal
nor reduction in rank. So the employee cannot claim a reasonable opportunity to be heard.
Exclusion of Opportunity to be Heard
Article 311(2 )Provides that reasonable opportunity of being heard is not applicable in the
following cases.

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 (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which
has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank ins
satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably
practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the
security of the State, it is not expedient to hold such inquiry.
Short Questions Answers

Q. 1. Write a short note on Doctrine of Pleasure.

Ans. Civil Servants are considered as the back bone of the administration. In order to ensure
the progress of the country it is essential to strengthen the administration by protecting civil
servants from political and personal influence. So provisions have been included in the
Constitution of India to protect the interest of civil servants along with the protection of national
security and public interest. Part XIV of the Constitution of India deals with Services under
The Union and The State. Article 309 empowers the Parliament and the State legislature
regulate the recruitment, and conditions of service of persons appointed, to public services and
posts in connection with the affairs of the Union or of any State respectively
Doctrine of Pleasure
In England the normal rule is that a civil servant of the Crown holds his office during the
pleasure of the Crown. This means that his services can be terminated at any time
by the Crown without assigning any reason even if there is a contract of employment, the Crown
is not bound by it. In other words if a civil servant is dismissed from service he cannot claim
arrears of salary or damages for premature termination of his service. The doctrine of pleasure is
based on public policy.
Article-310 of the Indian Constitution incorporates the Common law doctrine of pleasure. It
expressly provides that all persons who are members of the Defence Services or the Civil
Services of the Union hold office during the pleasure of the President. Similarly members of the
State Services hold office during the pleasure of the Governor. But this rule of English law has
not been fully adopted in this Article. A civil servant in India could always sue the union or state
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for arrears of salary. The rule is qualified by the words except or expressly provided by the
Constitution. Thus, Article-310 itself places restrictions and limitations on the exercise of the
pleasure under Article-310 are limited by Article-311(2). The services of permanent Government
servant cannot be terminated except in accordance with rules made under Article-309 subject to
the procedure in Article-311(2) of the Constitution and the fundamental rights. The above
doctrine of pleasure is invoked by the Government in the public interest after a government
servant attains the age of fifty years or has completed twenty five years of service. This is
constitutionally permissible as compulsory termination of service under does not amount to
removal or dismissal by way of punishment. While the Government reserves its right to
compulsory retire a government servant even against his wish, there is a corresponding right of
the government servant to voluntarily retire from service by giving a notice of three months to
the government. There is no question of acceptance of the request for voluntary retirement by the
government. Similarly, under Article-310 the government has power to abolish a post. However,
such an action, whether executive or legislative, is always subject to judicial review. The
question whether a person whose services are terminated as a result of the abolition of post
should be rehabilitated by giving alternative employment is a matter of policy.
Restrictions on the doctrine of pleasure
The Constitution provides limitations on the exercise of the doctrine of pleasure e.g. (i) The
pleasure of the President or the Governor is controlled by provisions of Article-311, so the field
covered by Article-311 is excluded from the operation of the doctrine of pleasure. The pleasure
must be exercised in accordance with the procedural safeguards provided by Article-311 (ii) the
tenure of the judges of the Supreme Court (Article-124), the judges of the High Courts
(Article-218), Auditor-General of India Article-148(2), the Chief Election Commissioner
(Article-324], and the Chairman and members of the Public-Service Commission (Article-317)
are not dependent on the pleasure of the President or the Governor. These posts are expressly
excluded from the operation of the doctrine of pleasure (iii) the doctrine of pleasure is subject to
the Fundamental Rights.
Q. 2. Write a short note on freedom of profession guaranteed under the
constitution there to.

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Ans. Freedom of Trade and Commerce and Constitutional provisions
Article 19(l)(g) of the Constitution guarantees to all citizens the right to practice any profession
or to carry on any occupation, trade or business. Under Article 19(6), however the state is not
prevented from making a law imposing, in the interests of the general public, reasonable
restrictions on the exercise of the fundamental right. or
(i) A law relating to professional or technical qualifications necessary for practicing a profession.
(ii) A law relating to the carrying on by the State, or by any corporation owned or controlled by
it, of any trade, business, industry or service,
Whether the exclusion, complete or partial, of citizens or otherwise The Constitution allows
reasonable restrictions on the exercise of the right in the interest of general public. The concept
of absolute right is conceivable in a modern State which has to reconcile the rights of the
individual with the interest of the community. In America though the constitution expressed the
rights in general terms, certain restrictions had to put on them by the judiciary to give them a
practical content in their application to individuals. The universal declaration of human rights is
also in general terms but Article 29 (2) permits imposition of limits and limitations were placed
on them in the covenant on civil and political rights.
In India, the Constitution itself has put certain restrictions on fundamental rights and enables
parliament by law to impose reasonable restrictions. In a modem State, rights must be subject to
social control and “it is a question of policy as to whether the legislature or judiciary makers
deliberately decided to place these powers in the hands of the legislature.” The judiciary can
exercise their powers only in the restricted field allotted to them.

Very Short Questions Answers

Q. 1. Define Administrative Tribunal Act 1985.

Ans. Establishment of Service Tribunals

The 42nd amendment provides for the establishment of Administrative Tribunals for the
determination of disputes relating to recruitment and conditions of service of persons appointed
to public services under the Union or State Governments or any local or other authority, or a

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corporation owned or controlled by government. Article-323A empowers the Parliament by law
to establish service tribunals.
Administrative Tribunals Act, 1985
In exercise of its powers under Article-323A the Parliament has enacted the Administrative
Tribunals Act,1985 establishing Administrative Tribunals to decide service disputes. The
Administrative Tribunals with main Bench in Delhi and additional benches at different places
were established and started functioning with effect from November1,1985. The Central
Tribunal will be headed by a Chairman and a Vice-Chairman for each of the benches and two
other members.
In Chandra Kumar v. Union of 1ndia, the Supreme Court held that clause 2(d) of Article-323A
and Clause 3 (d) of Article-323B to the extent they exclude the jurisdiction of the High Court
and the Supreme Court under Articles-226, 227 and 32 of the Constitution are unconstitutional
as they damage the power of judicial review which is a basic feature of the Constitution. The
result of the decision is that the High Courts and the Supreme Court shall continue to have
jurisdiction over service matters. The only thing is that the High Court will not entertain the
petition in first instance. An aggrieved party may go to the High Court by way of appeal.
Q. 2. Discuss the reasonable opportunity being heard. Is there any exception to
this rule.

Ans. Reasonable Opportunity of Being Heard

In Khem Chand v Union of India The Supreme Court held that the 'reasonable opportunity'
means:-
(a) An opportunity to deny his guilt and establish his innocence, which he can do only if he is
told what the charges leveled against him are and the allegations on which such charges as based.
(b) An opportunity to defend him by cross examining the witness produced against him and by
examining himself in support of his defiance.
(c) An opportunity to make his representation as to why the proposed punishment should not be
inflicted on him
Exclusion of Opportunity to be Heard

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Article 311(2) Provides that reasonable opportunity of being heard is not applicable in the
following cases.
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which
has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank ins
satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably
practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the
security of the State, it is not expedient to hold such inquiry.
Q. 3. What are the protections against the civil servants?

Ans. Civil Post

The protective safe guards given under Article 311 are applicable only to civil servants, i.e.
public officers. They are not available to defence personnel
Dismissal and Removal - Dismissal and removal are synonymous terms, but in law they
acquired technical meanings by long usage in Service Rules. In case of dismissal a person is
debarred from future employment, but in case of removal he is not debarred from future
employment.
No Removal by Subordinate Authority- No removal by subordinate authority does not mean
that the dismissal or removal must be by the same authority who made the appointment or by his
direct superior It is enough if the removing authority is of the same or co- ordinate rank as the
appointing authority.
Reduction in Rank - Reduction in Rank means reduction from a higher rank or post to a lower
rank or post and not loosing place in rank or cadre.
It thus involves two elements. A) Reduction in the physical sense means degradation.
B) It must be by way of penalty.
Q. 4. What are the Regulatory and compensatory measures under Art 301 of the
Indian Constitution?

105
Ans. Article 301 says that trade, commerce and intercourse throughout the territory of India
shall be free. And “this article should be understood in the context of an orderly society and it
must recognize the need and legitimacy of some degree of regulatory control irrespective of the
restrictions imposed by other articles in part XIII . Thus, Regulatory measures and compensatory
taxes for the use of trading facilities do not come within the purview of restrictions contemplated
by article 301.It is pertinent to bear in mind that all taxation is not necessarily an impediment or
a restraint in the matter or trade, commerce and intercourse. Instead of being such impediments
or restraints, they may, on the other hand, also provide for improvement of different kinds of
means of transport
The Supreme Court in the Atiabari Tea Co. case held that taxes, which hampered free flow of
trade and commerce, contravened Part XIII and, therefore were unconstitutional. The Court
qualified this decision in the Automobile Transport case and ruled that regulatory and
compensatory taxes did not come within the purview of Article 301. Thus, a measure which
operates on trade, commerce and intercourse directly and immediately may not be violative of
article 301 if it is regulatory or compensatory in the form of imposition of taxes for the use of
trading facilities.

UNIT-V

Q. 1. What are the provisions in the Constitution regarding the Elections?

Or
Q. 1. What are the powers and functions of Election Commission in India?
Ans. Laws pertaining to the elections in India are contained in Part XV of the Indian
Constitution. The provisions mentioned in the Articles (324 to 329) cover all aspects of
conducting elections starting from inclusion of names in electoral roll to formulation of laws
pertaining to elections.
Electoral Provisions in Indian Constitution

106
Election Commission Article-324 provides for an Election Commission to superintend, direct
and control elections. The Election Commission is an independent autonomous body and the
Constitution ensures that it functions freely without any interference of the executive.
Constitution of the election commission
The Election Commission shall consist of the Chief Election Commissioner and such other
Election Commissioners as the President may from time to time appoint. The Chief Election
Commissioner and the other Election Commissioners are appointed by the President subject to
the provisions of any law made by the Parliament. When other Election Commissioners are
appointed, the Chief Election Commissioner shall act as the Chairman of the Election
Commission. The President may also appoint after consultation with Election Commission such
Regional Commissioners as he may consider necessary to assist the Election Commission. The
conditions of service and tenure of office of the Election Commissioners and the Regional
Commissioners shall be such as the President may by law determine. The Chief Election
Commissioner can be removed from his office is the same manner and on the same grounds as of
a judge of the Supreme Court. The conditions of service of the Chief Election Commissioner
cannot be varied to his disadvantage after his appointment to the office by the President. The
other Election Commissioners and Regional Commissioners can be removed on the
recommendation of the Chief Election Commissioner.
The President or the Governor shall, when requested by the Election Commission, make
available to the Election Commission such staff as may be necessary to discharge its functions. It
can demand necessary staff from the Union and State governments whenever required.
In S.S. Dhannoa v. Union of India, the Supreme Court held that the Election Commissioners
cannot be placed at par with the Chief Election Commissioner in terms of power and authority.
The Court dismissed the petition of Mr. S.S. Dhanoa, challenging his removal from the post.
Holding that the removal of the two Election Commissioners was not a case of premature
termination of service but it was a case of the abolition of the post with termination of service as
a consequence. Hence the termination of service was not open to challenge on ground of
illegality. The court said that the protection available to the Chief Election Commissioners was

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not available either to the Election Commissioners or the Regional Commissioners and therefore
their conditions of service can be varied even to their disadvantage.
Multi Member Commission
In 1993 the Government issued an ordinance which is now on Act and converted the single
member Election Commission into a multi member Commission by appointing two persons as
Election Commissioners. The Ordinance provided specifically that the decision of three members
of the Election Commission shall so far as possible be unanimous. But, in case of difference of
opinion between the Chief Election Commissioner and other Election Commissioners the matter
shall be decided according to the opinion of the majority. The Ordinance issued by the President
provides that the allocation of business or work between the Chief Election Commissioner and
the other Election Commissioners shall be done under the Act and Rules of Business. The
Ordinance amended the law and equated the two Election Commissioners with the Chief
Election Commissioner in respect of salary and other terms of service.
The decision to make the Election Commission a multi member commission was made by the
Government in the wake of certain recent controversial decisions taken by the former Chief
Election Commissioner, Mr. T.N. Seshan, which had created a serious confrontation between the
Election Commission and the Government in 1993. He had postponed certain bye elections and
biennial elections to the Rajya Sabha and the State Legislative Councils unless certain
unresolved issues about the exclusive powers and privileges of the Commission to direct the
government about the deployment of the Central Police Forces at the time of an election. The
Commission had claimed exclusive jurisdiction to take disciplinary action against the staff
placed on poll duty.
The decision to have a multi-member Commission was also prompted by the ruling of the
Supreme Court in S.S. Dhannoa where it had observed that when an institution like the Election
Commission is entrusted with vital functions and is armed with exclusive and uncontrolled
powers to execute them, it is both necessary and desirable that the powers are not exercised by
one individual.
In T.N. Seshan v. Union of India the Constitution Bench of the Supreme Court unanimously
upheld the validity of the Act equating the status, power and authority of two Election

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Commissioners with that of the Chief Election Commissioner. The Chief Election Commissioner
Mr. T.N. Seshan had challenged the validity of the ordinance and the Act on the ground that it
was arbitrary, unconstitutional and void. He also alleged that because of his insistence on strict
compliance with model code of conduct by all political parties and strict actions the ruling party
at the union was unhappy with him; therefore in order to curtail his powers the Act was enacted.
He also said that they are inconsistent with the scheme of Article-324 and did not give power to
the Parliament to frame rules for transaction of business of the Election Commission. It was
pleaded by him that Section-10 of the Act which provides that the Election Commissioner will
take decisions unanimously and if they differ in opinion on any matter such matter shall be
decided according to the opinion of the majority is unworkable. The Court held that the Chief
Election Commissioner does not enjoy a status superior to other Election Commissioners.
Although there are differences between the service conditions of the Chief Election
Commissioner and the other Election Commissioners such as the Chief Election Commissioner
can only be removed from his office in the like manner and on the like ground as a judge of the
Supreme Court and that conditions of service cannot be varied to the disadvantage of the Chief
Election Commissioner after his appointment, while other Election Commissioners can be
removed on the recommendation of the Chief Election Commissioner, but that is not an
indication for conferring a higher status on the Chief Election Commissioner. Article-324
envisages a permanent body to be headed by a permanent incumbent namely, the Chief Election
Commissioner. Therefore in order to preserve and safeguard his independence he had to be
treated differently because there cannot be an Election Commission without a Chief Election
Commissioner. The court observed that nobody can be above the institution which he is
supposed to serve. He is merely the creature of the institution. He can exist only if the institution
exists. Projection of the individual as mightier than the institution would be grave injustice. The
judgment has ended nearly two years of bitter controversy over the functioning of the Chief
Election Commissioner vis-a-vis the Election Commissioners and advised all of them that for the
sake of the people and the country they would eschew their egos and work in a spirit of
camaraderie. We do hope they will forget and forgive and shall start on a clean slate of mutual

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respect and confidence and get going with the task entrusted to them in a sports men spirit
bearing in mind that the people of this country are watching them.
Referring to certain public utterances made by the Chief Election Commissioner Mr. T.N.
Sheshan the Chief Justice said that it appears that the Chief Election Commissioner is totally
oblivious to the sense of decorum and discretion that his high office requires, even if the cause is
laudable.
It has been held that the right to vote is a statutory right and therefore subject to the limitations
imposed by the State which can be exercised only in the manner provided by the statute. It is
neither a fundamental right nor a common law right. Accordingly,Section-5 of the
Representation of the Peoples Act, 1951 which debars a person to vote in an election if he is
confined in prison, whether under a sentence of imprisonment or transportation or otherwise, or
in lawful custody of police, but not under preventive detention, is not discrimination and is not
violative of Article-14 of the Constitution.
Functions of the Election Commission
According to Article-324(1) the Election Commission performs the functions i.e. the
superintendence, direction and control of the elections, preparation of the electoral rolls and also
the conduct of elections to the Parliament, the State Legislatures and of the offices of the
President and the Vice-President.
Article-325 provides that there shall be one general electoral roll for every territorial
constituency. Further Article-326 provides that no person shall be ineligible for inclusion in any
such roll on grounds only of religion, race, caste, sex or any of them. The elections to the
Parliament and the State Legislatures are to be held on the basis of universal adult suffrage.
Every person who is a citizen of India and who is not less than 18 years of age or is not
otherwise disqualified under the Constitution or any other law made by the legislature on the
ground of non residence, unsoundness of mind, crime, or illegal practice, has a right to be
registered as a voter.
It is the prerogative of the Government to choose the timing of the general elections. The role of
the Election Commissions is to take over the actual conduct and supervision of the elections. The
duty and power to initiate elections lie with the Government.

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Power of Parliament and State Legislatures with regard to election law
Article-327 empowers the Parliament to make provisions with respect to all matters relating to or
in connection with election to the Parliament and the State Legislature like the preparation of
electoral rolls, the delimitation of constituencies and all other connected matters. In exercise of
the power conferred by Article-327 the Parliament enacted the Representation of Peoples Acts,
1951, the Presidential and Vice-Presidential Elections Act, 1952, and the Delimitation
Commission Act, 1952. Article-328 confers a similar power on the State Legislatures. The State
Legislature can make laws relating to all the above matters referred to under Article-327.
Presidential reference under Article-143, relation between Article-174 and
Article-324
In a recent Presidential reference in 200285 the President referred the question regarding
interpretation of Article-174 and Article-324 to the Supreme Court for its opinion under
Article-143 of the Constitution. Under Article-174 the government has power to dissolve the
State Legislative Assembly. But it also provides that six months shall not intervene between its
last sitting in one session and the date decided for its first sitting in the next session. This means
that in normal situation if a legislative assembly is dissolved, election must be held and the
assembly be constituted within that period. Article-324 vests power of superintendence, direction
and control of the preparation of the electoral rolls for and the conduct of, all elections to
Parliament and the legislature of every State under this Constitution. Under Article-356 there is a
provision for the Presidents Rule in a State. The facts were that after accident in Godhara in
Gujarat in 2002 there were widespread communal riots in certain areas of Gujarat. The Assembly
was dissolved and the elections were recommended. The Election Commissioner visited the
State and decided that the condition in the State was not conducive for holding the assembly
election. It even recommended the imposition of President’s rule after the lapse of 6 months. In
view of this the government referred three questions to the Supreme Court for its opinion i.e. (1)
Whether Article-174 is subject to that decisions of the Election Commission not to hold elections
in a State under Article-324. (2) Whether the Election Commission can declare election schedule
which violates Article-174 and after the expiry of 6 months Constitutional period for assembly to
meet necessitating the imposition of President’s Rule under Article-356. (3) Whether the
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mandate of Article-174 to hold election will be fulfilled by the holding of election by
Commission under Article-324.
The Supreme Court rejected the contention of the Gujarat government that Article-174 of the
Constitution which mandates that not more than six months shall lapse between two sittings of
an elected assembly and held that Article-174(1) does not apply to a dissolved Assembly whose
life has come to an end and ceased to exist but applies to a live assembly. The court said that
Article-174(1) neither relates to elections nor does it provide any outer limit for holding elections
for constituting the Legislative Assembly. The court held that the holding of elections is the
exclusive domain of the Election Commission under Article-324 of the Constitution. The Court
said that this was evident from Sections-14 and 15 of the Representation of People Act, 1951
which provide that the President or the Governor shall fix the date for holding elections on the
recommendations of the Election Commission.
Regarding whether Article-174 would yield to Article-324, the court said that Article-174(1) and
Article-324 operate on different fields and neither Article-174 (1) is subject to Article-324 nor
Article-324 is subject to Article-174.
Referring to the contention of the Union and the political parties that in the absence of any period
provided either in the Constitution or in the Representation of People Act, 1951 the Election
Commission might not hold elections at all and in that event it would be the end of democracy.
The Court said that on premature dissolution of an Assembly the Election Commission is
required to initiate immediate steps for holding election for constituting the Assembly on the first
occasion and, in any case, within six months from the date of premature dissolution of the
Assembly.
With regard to the view of Election Commission, that in case the requirement of Article-174(1)
is not complied with the President would act under Article-356, the court said that it was
misplaced and does not apply. Regarding the third question, the court said that under Article-324
it is the duty and responsibility of the Election Commission to hold free and fair elections at the
earliest. No efforts would be spared by the Election Commission to hold timely elections. With
regard to the reference to the order of the Election Commission postponing elections in Gujarat
citing law and order situation in the State, the Court said that ordinarily the law and order or

112
public disorder should not be the occasion for postponing the election and it would be the duty
and responsibility of all concerned to render all assistance and cooperation to the Election
Commission for holding free and fair elections.
The consequential fallout of not holding elections for a long time was the functioning of a
caretaker government, which was contrary to the principle of responsible government was in
office. He said that reasons for deferring elections should be relatable to acts of God and
normally not acts of man. Myriad reasons may be there for not holding elections and situations
may be created by interested persons to see that elections do not take place and the caretaker
government continue in office. Any man made attempt to obstruct free and fair elections is
antithesis to democratic norms and should be overcome by arranging resources from the intended
sources and by holding the elections within the period of six months.
Though the Court held that the Election Commission has full power of holding and conducting
elections yet its power is not autocratic and its decisions are subject to judicial review. In this
sense the Election Commission emerged as the highest Constitutional authority but at the same
time its discretion has been rightly disciplined by the court. It must complete the elections within
an outside limit of six months unless there are some overriding emergency reasons for going
beyond that limit. Law and order was not a reason to postpone elections otherwise there was a
danger of indefinite postponement.
Courts not to interfere in election matters
Article-329 says that the validity of law relating to the delimitation of constituencies or the
allotment of seats to such constituencies shall not be called in question in any court. Clause (b) of
Article-329 provides that elections can only be called in question by an election petition
presented to such authority and in such manner as may be laid down by law made by the
appropriate legislation. In exercise of the power under clause (b) of this Article-Parliament
enacted the Representation of People’s Act, 1951. In this Act, the decision of the Election
Commission was final. In Ponnu Swami v. Returning Officer, the nomination papers of the
appellant for the state assembly were rejected by the Returning Officer. He moved the High
Court under Article-226 for the quashing of the order of the Returning Officer and direction for
the inclusion of his name in the list of valid nominations. The High Court dismissed the writ

113
petition on the ground that under Article-329 (b) the court had no jurisdiction to interfere with
the order of the Returning Officer. The appellant went in appeal to the Supreme Court. The
Supreme Court held that the word election in Article-329 connotes the entire procedure to be
gone through to return the candidate to the legislature and bars the jurisdiction of the High Court
under Article-226 and the acceptance or rejection of nomination paper is included in the term
election. The matter can only be challenged by the election petition before the High Court after
the election is over.
In Venkatachalam v. A. Swamickan the Supreme Court held that Article-329 which bars
interference of the court in electoral matter does not come into play in a case which falls under
Articles-191 and 193 which provides for disqualification of members and penalty for sitting and
voting when disqualified and the whole of election process is over. In such a case the High Court
can interfere under Article-226 and declare that he was entitled to sit in the state assembly.
But neither Article-329 (b) nor the Representation of the People’s Act, 1951 could restrict the
power of High Courts under Article-226 and the power of the Supreme Court under the
Article-136. The Constitution (19th Amendment) Act, 1966, abolished the jurisdiction of
Election Tribunals over election disputes. The Amendment has vested this power in the High
Courts. The effect of vesting the power in the High Courts was to expedite decision in election
disputes.
Amendments to the Indian Constitution
Electoral reforms had led to a series of constitutional amendments. It was during the time of
emergency (1975 to be precise) when the 39th amendment of the Indian Constitution was
enacted. The amendment was made to place the election of the President, the Vice President, the
Prime Minister and the Speaker of the Lok Sabha beyond the scrutiny of the courts. The 52nd
Amendment Act of 1985 set the provisions for disqualification of members of Parliament or
State Legislature for defecting to another political party after elections. The 73rd and 74th
amendments ensure direct election to all seats in Municipalities and Panchayats. The 73rd
amendment also makes provisions for reservation of seats for SCs, STs and women.
Q.2. Explain the emergency provisions of the Constitution. Describe its various
types and what are the effects of emergency on fundamental Rights?
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Ans. Emergency
The term Emergency may be defined as“circumstances arising suddenly that calls for immediate
action by the public authorities under the powers especially granted to them”.
Emergency provisions in India are borrowed from Weimar Constitution of Germany
Emergency Provisions are contained in Part Eighteen of the Constitution of India.
Emergency is the unique feature of the Indian Constitution that allows center to assume wide
powers so as to handle the special situations. The center can take full legislative and executive
control of any state. It allows the center to curtail or suspend the freedom of citizens. Dr. B.R
Ambedkar claimed that the Indian Federation was unique as during the times of emergency it
could convert itself into an entirely unitary system. In India, the emergency provisions are such
that the constitution itself enables the federal government acquire the strength of unitary
government whenever the situation demands. During such urgent needs all the pacific methods
should be exhausted and emergency should also be the last weapon to use as it affects India’s
federal feature of government. As per the articles 352, 356 and 360 in the Constitution of India,
President of India have been given extraordinary power to declare an emergency to meet any
threat to the country. Those powers to President of India in Constitution are called emergency
provisions.
Types of Emergencies

National Emergency, (Article 352 ) Financial Emergency (Article 360)

State Emergency (Article 356)

I. National Emergency (Article 352 )

.Article 352 of the Indian Constitution deals with national emergency.National emergency is
imposed whereby there is a grave threat to the security of India or any of its territory due to war,
external aggression or armed rebellion. Such emergency shall be imposed by the president on

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the basis of written request by the council of ministers headed by the Prime Minister. Grounds
for Proclamation of Emergency
Before the 44th amendment to the Constitution of India, the following are the grounds under
which the President can proclaim emergency.
▪ War
▪ External Aggression
▪ Internal Disturbance
However, the term Internal Disturbance is too vague and might also include political agitations
in the country. Hence, the 44th amendment replaced this with armed rebellion. After the 44th
amendment the following are the grounds under with a National Emergency can be proclaimed
by the President.
• War
• External Aggression
• Armed Rebellion.
When they are satisfied that there is an eminent danger thereof every proclamation is required to
be laid before each House of Parliament, it will cease to operate after one month from the date
of its issue unless in the meantime it is approved by the parliament, the proclamation may
continue for a period of 6 months unless revoked by the president. For further continuance of
emergency the resolution has to be passed by either house of parliament by a majority of not less
than two-third members of the houses. Such a proclamation of emergency may be revoked by the
president subsequently. The proclamation of emergency made under article 352 may be
subjected to the judicial review and its constitutionally can be questioned in a court of law on the
grounds of malafide. The proclamation made must be approved by both the houses of parliament
within one month after the proclamation. The effect of the proclamation of emergency is the
emergence of the full-fledged Unitary Government During the times of such emergency the
executive, legislative and financial power rests with the centre whereas the state legislature is not
suspended. The union government under Art.250 of the constitution gets the power to legislate in
regards to subjects enumerated in the state list. Except Art20 and 21 all the fundamental rights

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are suspended. Under Art.359 the president may suspend the right to move to the courts for
enforcement of fundamental rights during the time of emergency.
In the case of Minerva Mills vs Union of India it has been held that there is no bar to judicial
review of the validity of the proclamation of emergency issued by the president under Article
352(1). However, court's power is limited only to examining whether the limitations conferred
by the Constitution have been observed or not. It can check if the satisfaction of the president is
valid or not. If the satisfaction is based on mala fide or absurd or irrelevant grounds, it is no
satisfaction at all.
National emergency has been imposed thrice in the country- in 1962 at time of Chinese
aggression, in 1971 during the Indo-Pak War, in 1975 on the grounds of internal
disturbances.
Effects of National Emergency
The first and foremost effect of an emergency is the suspension of the fundamental rights
guaranteed by Article 19 of the Indian Constitution. Under articles 358 and 359, the President
of India can extend the suspension of all fundamental rights except those mentioned in Articles
20 and 21.
Union Executive is free to give directions on all the subjects and such directions are binding on
the States. State Government is not dismissed when National Emergency is proclaimed but
brought under the effective control of the Union. Under Article 250 when National Emergency is
in force, Parliament assumes Concurrent Legislative Jurisdiction over all the subjects under the
State List. State Legislative Assembly is not suspended or dissolved. It continues to enjoy the
jurisdiction over state subjects but Parliament also assumes legislative powers on such subjects.
The satisfaction of President under Article 352 can be challenged in a court of law on the
ground of mala fide.
State Emergency (Article 356)
It is the duty of the Union Government to ensure that governance of a State is carried on in
accordance with the provisions of the Constitution Article 356, the President may issue a
proclamation to impose emergency in a state if he is satisfied on receipt of a report from the
Governor of the State, or otherwise, that a situation has arisen under which the Government of

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the State cannot be carried on smoothly. In such a situation, proclamation of emergency by the
President is called ‘proclamation on account of the failure (or breakdown) of constitutional
machinery.’ In popular language it is called the President’s Rule.
Proclamation of Emergency
Article 356 deals with the failure of constitutional machinery in state also known as the
President’s rule. If the president on Governor’s report or otherwise is satisfied that the situation
has arisen that the government can’t be carried in accordance with the constitutional provisions
then, he may issue State emergency.
President can declare emergency either by the report of Governor or he himself is satisfied that
the situation is such that the emergency has to be imposed. But at times, President may declare
emergency when a report is not received from the governor. This was done by President
Venkataraman in 1991 in the state of Tamil Nadu even though he didn’t receive a report from
the governor. After the 42th Amendment of the constitution the state emergency was made
immune from judicial review. But later in the 44th Amendment the legality of President’s rule
could be challenged. The proclamation relating to state emergency shall be laid before each
House of Parliament unless both Houses approve it, the emergency shall cease to have effect
after the expiry of a period of two months. Further the duration of proclamation can be extended
to 6 months each time by both Houses of Parliament passing resolution approving its
continuance. Beyond the period of an year the proclamation can only be continued if the Election
Commission certifies that it is not possible to hold election in the state or that territory
The consequences of State Emergency
The President assumes all the executive power of the state himself. The state administration runs
by him or any person appointed by him generally the Governor. During such proclamation, the
state assembly is either dissolved or suspended. But the MLA’s do not lose their membership of
the Assembly. Parliament makes laws regarding the state list. The parliament only passes the
budget for the state. The High court of the state functions independently and President also
proclaims ordinances in the state.
In Rameshwar Prasad V. UOI (Bihar Assembly Dissolution Case) it was held that the
presidential proclamation dissolving state assembly in Bihar under Art.356 was unconstitutional

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on extraneous and irrelevant ground. The court said that the state governor misled the centre in
recommending dissolution of state assembly.
In the historic case of S.R Bommai V. UOI, a full bench of the Karnataka High court
produced different opinion about the imposition of the President’s rule in Karnataka, while in
other states the court held that it was in violation of the constitution and would have restored the
original position.
Financial Emergency (Article 360)
Article 360 states that if the President is satisfied that a situation has arisen whereby the financial
stability or the credit of India or any part thereof is threatened, President may declare a state of
financial emergency.
During the period such proclamation is in operation, the executive authority of the Union extends
to the giving of directions to any State to observe such canons of financial propriety as may be
specified in the directions, any such directions may also include:
A provision required the reduction of salaries and allowances of all or any class of person
serving a State or the Union a provision requiring all Money Bills or other Financial Bills to be
reserved for the consideration of the President after they are passed by the legislature of the
State.
A Proclamation issued under Article 360 will remain in force for two months unless before the
expiry of the period it is approved by both the Houses of the Parliament Once approved it
remains in force till revoked by the President.
No emergency under Article 360 has been issued so far.
Q. 3. Discuss the procedure for amendment of the Indian Constitution and
explain the extent of amending power with the help of decided cases.
Or
Q. 3. Explain the concept Doctrine of Basic Structure.
Ans. Amendment of the
Oxfords Dictionary of Law says Amendment means changes made to legislation, for the purpose
of adding to, correcting or modifying the operation of the legislation.
Amending the Constitution of India is the process of making changes to the nation's fundamental
law or supreme law. The procedure of amendment in the constitution is laid down in Part XX

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(Article 368) of the Constitution of India. This procedure ensures the sanctity of the Constitution
of India and keeps a check on arbitrary power of the Parliament of India. However, there is
another limitation imposed on the amending power of the constitution of India, which developed
during conflicts between the Supreme Court and Parliament, where Parliament wants to exercise
discretionary use of power to amend the constitution while the Supreme Court wants to restrict
that power.
This has led to the laying down of various doctrines or rules in regard to checking the
validity/legality of an amendment, the most famous among them is the Basic structure
doctrine as laid down by the Supreme Court in the case of Kesvananda Bharati v. State of
Kerala Provided the best explanation as to the scope and definition of the word amendment. it
purported that a broad definition of the word amendment will include any alteration or change.
the word amendment when used in connection with the constitution may refer to the addition of a
provision on a new and independent subject, complete in itself and wholly disconnected from
other provisions, or to some particular article or clause, and is then used to indicate an addition
to, the striking out, or some change in that particular article or clause".
Types of Amendments
Amendment by Simple Majority - As the name suggests, an article can be amended in the
same way by the Parliament as an ordinary law is passed which requires simple majority. The
amendment contemplated under Articles 5-11 (Citizenship), 169 (Abolition or creation of
Legislative Councils in States) and 239-A (Creation of local Legislatures or Council of
Ministers or both fir certain Union Territories) of the Indian Constitution can be made by
simple majority. These Articles are specifically excluded from the purview of the procedure
prescribed under Article 368.
Amendment by Special Majority - Articles which can be amended by special majority are laid
down in Article 368. All amendments, except those referred to above come within this category
and must be affected by a majority of total membership of each House of Parliament as well as
2/3rd of the members present and voting.
Amendment by Special Majority and Ratification by States - Amendment to certain Articles
requires special majority as well as ratification by states. Proviso to Article 368 lays down the

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said rule. Ratification by states means that there has to be a resolution to that effect by one-half
of the state legislatures. These articles include Article 54 (Election of President), 55 (Manner of
election of President), 73 (Extent of executive power of the Union), 162 (Extent of executive
power of State), 124-147 (The Union Judiciary), 214-231 (The High Courts in the States), 241
(High Courts for Union Territories), 245-255 (Distribution of Legislative powers) and Article
368 (power of the Parliament to amend the Constitution and procedure there for) itself. Any
list of seventh schedule or representation of states in Parliament as mentioned in the fourth
schedule is also included.
Art 368. Power of Parliament to amend the Constitution and Procedure therefore
(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent
power amend by way of addition, variation or repeal any provision of this Constitution in
accordance with the procedure laid down in this article.
(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the
purpose in either House of Parliament, and when the Bill is passed in each House by a majority
of the total membership of that House and by a majority of not less than two-thirds of the
members of that House present and voting, it shall be presented to the President who shall give
his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the
terms of the Bill:
Provided that if such amendment seeks to make any change in –
(a) Article 54, Article 55, Article 73, Article 162, Article 241 or Article 279A or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article,
The amendment shall also require to be ratified by the legislatures of not less than one-half of the
states by resolutions to that effect passed by those legislatures before the bill making provision
for such amendment is presented to the president for assent.
(3) Nothing in article 13 shall apply to any amendment made under this article.

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(4) No amendment of this Constitution (including the provisions of Part III) made or purporting
to have been made under this article whether before or after the commencement of section 55 of
the Constitution (Forty second Amendment) Act, 1976 shall be called in question in any court on
any ground.
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on
the constituent power of Parliament to amend by way of addition, variation or repeal the
provisions of this Constitution under this article.
Amenability of the Indian Constitution
According to Vepa P. Sarathi, there will never be a conflict between Legislature and Judiciary
and these two powerful organs will be better capable of guiding the third branch i.e. Executive, if
the following view for the purpose of amendment is accepted.
Article 368 can be interpreted in the following manner:
A) The power of the Parliament to amend Constitution is absolute and there are no limits on
that power.
B) Parliament should not, however, take away the power of the courts to strike down ordinary
legislation as tested against the amended Constitution.
The elementary question in controversy has been
Whether fundamental rights are amendable so as to take away the basic rights guaranteed by
the constitution?
Another controversy deals with the extent, scope and authority of parliament to amend
constitution.
The answer has been given by the Supreme Court from time to time, sometimes under immense
pressure and can be understood in the light of the following cases:
Shankari prasad v. Union of India (AIR 1951 SC 458)
The validity of the First Amendment Act to the Constitution was challenged on the ground that
it abridges the fundamental Rights under Part 3 of the Constitution of India.
Supreme Court held that the power to amend the Constitution, including Fundamental Rights is
contained in Article 368. An amendment is not a law within the meaning of Article 13(2). Article
13(2) states that – "The State shall not make any law which takes away or abridges the rights

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conferred by this part and any law made in contravention to this clause shall, to the extent of the
contravention, be void". An amendment is valid even if it abridges any fundamental Right.
Sajjan singh v. State of Rajasthan (AIR 1965 SC 845)
The validity of the 17th Amendment Act, 1964 was challenged on the ground that one of the
acts inserted by the amendment in the 9th Schedule affected the petitioner on the basis that the
amendment fell within the purview of Article 368 and the requirements in the proviso to Article
368 had not been complied with. Supreme Court approved the judgment in Shankari Prasad case
and held that on Article 13 (2) the case was rightly decided. Amendment includes amendment to
all provisions of the Constitution.
Golaknath v. State of Punjab (AIR 1967 SC 1643)
The Supreme Court prospectively overruled its decision in Shankari Prasad and Sajjan
Singhcases and held that Parliament had no power to amend part 3 of the Constitution so as to
abridge or take away any of the Fundamental Rights. It also added that Article 368 merely lays
down the procedure for the purpose of amendment. Further, The Court said that an amendment is
a law under Article 13(2) of the Constitution of India and if it violates any fundamental right, it
may be declared void.
24th Amendment Act, 1971
Golaknaths case created a lot of difficulties and as a result the Parliament enacted 24th
Amendment act, 1971 Whereby it changed the old heading of Article 368– "Procedure for
Amendment of the Constitution" to a new heading – "Power of the Parliament to Amend the
Constitution and Procedure Therefore.”
To the benefit of the Legislators, the 24th Amendment Act, 1971 restored and extended the
scope of power of Parliament to amend the Constitution by adding the words "amend by way of
addition or variation or repeal any provision in accordance with the provisions laid down in this
Article" Further, the amendment provided that "Nothing in Article 13 shall apply to any
amendment made under this article" by way of an addition of Clause 3 to Article 368.
Kesvananda Bharti v. State of Kerala (AIR 1973 SC 1461)
One of the various questions raised in this case was the extent of the power of the Parliament to
amend under Article 368.

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A 13 Judge Constitutional bench was formulated under Chief Justice Sikri in order to evaluate
the intricacies of Golaknaths case. The Supreme Court overruled its decision in Golaknaths
case and held that even before the 24th Amendment Article 368 contained power as well as
procedure for amendment. The majority held that there are inherent limitations on the amending
power of the Parliament and Article 368 does not confer power so as to destroy the Basic
Structure of the Constitution.
Basic Structure theory
The Theory of basic structure very effectively proved to be a limitation on the amending power
of the Parliament. The Basic Structure doctrine applies only to the Constitutionality of
amendments and not to ordinary Acts of Parliament, which must conform to the entirety of the
Constitution and not just its basic structure.
Chief Justice Sikiri indicated that Basic structure is-
1. The supremacy of Constitution.
2. The republican and democratic forms of government.
3. The secular character of Constitution.
4. Maintenance of separation of power.
5. The federal character of the Constitution.
Justices Shelat and Grover added another three -
1. The mandate to build a welfare state contained in the Directive Principles of State Policy
2. Maintenance of the unity and integrity of India.
3. The sovereignty of the country.
Justices Hegde and Mukherjea listed the following-
1. The Sovereignty of India
2. The unity of the country.
3. The democratic character of the polity.
4. Essential features of individual freedoms.
5. The mandate to build a welfare state.
Justice Jaganmohan Reddy referred the Preamble only-

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1. A sovereign democratic republic.
2. The provision of social, economic and political justice.
3. Liberty of thought, expression, belief, faith and worship.
4. Equality of status and opportunity.
42nd Amendment Act, 1976 and Article 368
42nd Amendment Act, 1976 was passed by the Parliament soon after. Amendment added clause
4 and clause 5 to Article 368 Article 368(4) provided that no Constitutional Amendment shall be
called in any court on any ground Article 368(5) provided that there shall be no limitation
whatsoever on the constituent power of the Parliament.
Minerva mills v. Union of India (AIR 1980 SC 1789) Supreme Court struck down clauses (4)
and (5) of Article 368 inserted by the 42nd amendment. Justification for the deletion of the said
clauses was based on the destruction of Basic Structure.
The Court was satisfied that 368 (4) and (5) clearly destroyed the Basic Structure as it gave the
Parliament absolute power to amend Constitution. Limitation on the amending power of the
Parliament is a part of the Basic Structure explained in Kesavanandas case.
S. P. Sampath kumar v. Union of India (AIR 1987 SC 386) The Constitutional validity of
Article 323A and the provisions of the Administrative Tribunals Act was challenged on the
ground that it excluded the jurisdiction of High Court under Article 226 and 227. Supreme
Court held that Article 323A and Administrative Tribunals Act was valid as it has not excluded
Judicial Review under Article 32 and 136. It was not proved beyond reasonable doubt that
Article 323A and Administrative Tribunals Act destroyed the basic structure and the Court
upheld their validity.
Chandra kumar v. Union of India (AIR 1997 SC 1125)The Supreme Court struck down clause
2(d)of Article 323A and clause 3(d) of Article 323B as they excluded the jurisdiction of High
court under Article 226 and 227 as well as jurisdiction of Supreme Court under Article 32 as
they damage the power of Judicial Review which is a basic feature of Constitution.
Amending the Constitution of India is the process of making changes to the nation's fundamental
law or supreme law.

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This procedure ensures the sanctity of the Constitution of India and keeps a check on arbitrary
power of the Parliament of India. However, there is another limitation imposed on the amending
power of the constitution of India, which developed during conflicts between the Supreme
Court and Parliament, where Parliament wants to exercise discretionary use of power to amend
the constitution while the Supreme Court wants to restrict that power.

Short Questions Answers

Q. 1. Write a short note on President Rule?

Ans. State Emergency (Article 356)

It is the duty of the Union Government to ensure that governance of a State is carried on in
accordance with the provisions of the Constitution Article 356, the President may issue a
proclamation to impose emergency in a state if he is satisfied on receipt of a report from the
Governor of the State, or otherwise, that a situation has arisen under which the Government of
the State cannot be carried on smoothly. In such a situation, proclamation of emergency by the
President is called ‘proclamation on account of the failure (or breakdown) of constitutional
machinery.’ In popular language it is called the President’s Rule.
Proclamation of Emergency
Article 356 deals with the failure of constitutional machinery in state also known as the
President’s rule. If the president on Governor’s report or otherwise is satisfied that the situation
has arisen that the government can’t be carried in accordance with the constitutional provisions
then, he may issue State emergency.
President can declare emergency either by the report of Governor or he himself is satisfied that
the situation is such that the emergency has to be imposed. But at times, President may declare
emergency when a report is not received from the governor. This was done by President
Venkataraman in 1991 in the state of Tamil Nadu even though he didn’t receive a report from the
governor. After the 42th Amendment of the constitution the state emergency was made immune
from judicial review. But later in the 44th Amendment the legality of President’s rule could
be challenged. The proclamation relating to state emergency shall be laid before each House of
Parliament unless both Houses approve it, the emergency shall cease to have effect after the

126
expiry of a period of two months. Further the duration of proclamation can be extended to 6
months each time by both Houses of Parliament passing resolution approving its continuance.
Beyond the period of an year the proclamation can only be continued if the Election Commission
certifies that it is not possible to hold election in the state or that territory
The consequences of State Emergency
The President assumes all the executive power of the state himself. The state administration runs
by him or any person appointed by him generally the Governor. During such proclamation, the
state assembly is either dissolved or suspended. But the MLA’s do not lose their membership of
the Assembly. Parliament makes laws regarding the state list. The parliament only passes the
budget for the state. The High court of the state functions independently and President also
proclaims ordinances in the state
In Rameshwar Prasad V. UOI (Bihar Assembly Dissolution Case) it was held that the
presidential proclamation dissolving state assembly in Bihar under Art.356 was unconstitutional
on extraneous and irrelevant ground. The court said that the state governor misled the centre in
recommending dissolution of state assembly.
In the historic case of S.R Bommai V. UOI, a full bench of the Karnataka High court
produced different opinion about the imposition of the President’s rule in Karnataka, while in
other states the court held that it was in violation of the constitution and would have restored the
original position.
Very Short Questions Answers
Q. 1. Define the effects of Proclamation of Emergency.
Ans. Effects of proclamation of emergency
Proclamation of Emergency is in operation, then-
1.The executive power of the union shall extend to the giving of directions to any state
2.The power of Parliament to make laws with respect to any matter shall include 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 it is one which is not enumerated in the Union List shall also extend
to any State other than a State in which or in any part of which the Proclamation of Emergency is
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in operation if and in so far as the security of India or any part of the territory thereof it
threatened by activities in or in relation to the part of the territory of India in which the
Proclamation of Emergency is in operation.
Q.2. Write down the procedure for Amendment in the Constitution?
Ans. An Amendment of the constitution can be initiated only by the introduction of a Bill in
either House of Parliament. The Bill must then be passed in each House by a majority of the total
membership of that House and by a majority of not less than two-thirds of the members of that
House present and voting. The Bill, passed by the required majority, is then presented to the
President who shall give his assent to the Bill. If the amendment seeks to make any change in
any of the provisions mentioned in the provision to article 368, it must be ratified by the
Legislatures of not less than one-half of the States. Although there is no prescribed time limit for
ratification, it must be completed before the amending Bill is presented to the President for his
assent.
Q. 3. What are the effects of emergency on fundamental Rights?
Ans. Effects of National Emergency
The first and foremost effect of an emergency is the suspension of the fundamental rights
guaranteed by Article 19 of the Indian Constitution. Under articles 358 and 359, the President
of India can extend the suspension of all fundamental rights except those mentioned in Articles
20 and 21.Union Executive is free to give directions on all the subjects and such directions are
binding on the States. State Government is not dismissed when National Emergency is
proclaimed but brought under the effective control of the Union. Under Article 250 when
National Emergency is in force, Parliament assumes Concurrent Legislative Jurisdiction over all
the subjects under the State List.

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