Constitutional Law-2

UNIT - I
1. What do mean by SLP? Nature and scope of the SLP. Explain the
circumstances when SLP would be maintainable in the Apex Court.
INRODUCTION: - The Supreme Court of India is authorized to grant in its
discretion special leave appeal from any judgment decree determination sentence
or order or in any case or matter passed any court or tribunal in the territory of
India. The only exception to this power of the Supreme Court is with regard to any
judgment etc. of any court or tribunal constituted by or under any law relating to
the Armed Forces. NATURE & SCOPE OF SPECIAL LEAVE PETITION:1. Article 136 of the constitution of India vests very wide powers in the Supreme
Court. The power given under this article is in the nature of a Special residuary
power which is exercisable outside the purview of ordinary law. This article deals
with ordinary appeals to the Supreme Court in the cases where the needs of justice
demand interference by the highest court of the land. This article has the widest
possible terms. It vests the Supreme Court a plenary jurisdiction in the matter of
entertaining and hearing appeals by granting Special Leave against any kind of
judgement or order made by any court or tribunal except Military Tribunal
DISTINCTION BETWEEN ARTICLE 136 AND ART. 132-135:-The power of
the Supreme Court under Article 136 is not fettered with any of the limitations
contained in articles 132 to 135 .a) In Jyotendra Singhi v/s S.T.Tripath-1993, it
has been held that party cannot gain advantage by approaching the Supreme Court
directly under Art.136 instead of approaching High Court under art. 226. This is
not a limitation inherent in Art. 136, it is a limitation which the Supreme Court
imposes itself. b) How & When an appeal can be entertained by Supreme
Court: - Art. 132 to 135 that an appeal can entertained by the Supreme Court
against the final order but under article 136 the word order is not qualified by the
adjective final and hence the court can grant special leave to appeal even from
interlocutory order. c) Under Articles 132 to 134 appeal lies against the final order
of High Court while under Art. 136 the Supreme Court can grant special leave for
appeal from any court or tribunal from any subordinate court below the High
Court. The wide discretionary power with which this Court is vested under it is to
be exercised in granting Special Leave to appeal in exceptional cases only. In case
of D.C.M. v/s Commissioner of Income tax-1955, court held that it being an
Exceptional and overriding power it has to be exercised sparingly and with caution
and only in Special extraordinary situations. Beyond that it is not possible to fetter
the exercise of this power by and set formula or rule.

d) Normally the Supreme Court does not interfere with concurrent findings of
the trail court and the High Court unless there is sufficient to do so as held in a case
of Sultan Ahmad v/s State of Bihar-1975, Supreme Court had to enter into the
merit of the case in order to prevent grave and substantial injustice to the appellant
who was evicted as a result of the wrong interpretation of the law.
e) In an appeal under article 136 the Supreme Court does not allow the appellant to
raise new plea for the first time as held in a case of Mani subha rao v/s
Ganeshapa-1978.
IN CRIMINAL CASES: - The power of the Supreme Court under article 136 has
more frequently been invoked in criminal appeals. As held in a case of Haripada
Dey v/s State of West Bengal-1956, that it will grant special leave only if there
has been gross miscarriage of justice or departure from legal procedure.
In Judicial Service Assn. v/s State of Gujrat-1991, the Supreme Court held that
under article 136 the Supreme Court has wide power to interfere and correct the
judgment and orders passed by any court or tribunal in the country.
In a judgment Union Carbide Corpn. V/s Union of India-1991: the court held
that under article 136 the court has inherent power to withdraw or transfer or
original suit pending in the District Court of Bhopal and dispose of the same and
also criminal proceedings in the course of hearing of appeals.
M.R.Dhawan v/s Pratap Bhanu-1978, the appellant was tried by the trial
Magistrate and was discharged on the ground that no prima facie case was
established against him. The session Judge affirmed the order of the Magistrate.
The Supreme Court held that he would not normally interfere with the discretion
exercised by the High Court. Private party can file appeal under Art. 136
challenging acquittal:- It is a land mark judgement in Ramakant Rai v/s Madan
Rai-2004, S.Court held that where an accused is acquitted by the High Court and
no appeal against the acquittal is filed by the State, a private can file appeal under
art. 136. At the end it is concluded here that where the High Court committed
serious errors of law in appreciating the evidence and based its decisions on
conjectures then the interference of Supreme Court is justified to reverse the
Acquittal by the High Court and convicting the accused and sentencing them to life
imprisonment.

2. WHAT ARE THE CONSTITUTIONAL REMEDIES PROVIDED UNDER THE

CONSTITUTION FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHTS?

COMPARE IN THIS REGARD THE JURISDICTION OF HIGH COURT UNDER ART.

226 WITH THAT OF SUPREME COURT UNDER ART. 32.

INTRODUCTION:- In the language of Law the writs as extraordinary remedies

which are issued upon cause shown in case where the ordinary legal remedies are
inapplicable or inadequate. According to Justice Hidayat Ullah, The word, writ
has been used in the same sense of a written document under the seal of the court
issued to a person or authority.
KINDS OF WRITS: - There are two types of Writs:i) The prerogative Writs:- The prerogative writs are ancient remedial process of an
extraordinary nature which have from the earliest time issued from the court Bench
in which the sovereign was always present in compensation of Law. The
jurisdiction to issue such writs was later on extended to the High Court of Justice
& Supreme Court of Judicature Act 1925.
ii) Original or Judicial writs:- The original or judicial writs commence between
party to party and they issue as of course.
WRITS - WHEN REQUIRED TO BE ISSUED:- Under article 32 and 226, the
constitution of Indian confers upon the Supreme Court and the High Court
respectively the power to issue direction orders or writs including writs in the
nature of Hebeas Corpus, Mandamus, Prohibition,Quo-warranto and Certiorari for
the Fundamental Rights and in the High Court for any other purpose. Refer case of
Fertilizer Corporation Kamgar Union v/s Fertilizer Corporation -1981:
1. HABEAS CORPUS:- The literal meaning of Harbeas Corpus is, you may have
the body. The writ of Habeas copus is a writ for securing the liberty of person
where such liberty is wrongly taken away. It is an effective means of immediate
release from unlawful detention whether in prison or in private custody. The writ
consists in a command from the Court of the production of the person detained or
imprisoned and through this writ the Court makes an inquiry into the cause of
imprisonment.
WHO CAN APPLY:- An application for Habeas Corpus can be made by either the
prisoner himself or by any other person on his behalf. The Supreme Court in Sunil
Batra v/s Delhi Administration-1980: It was held that the technicalities and the
legal necessaities are no impediment the court entertaining even an informal
communication as a proceeding for Habeas Corpus.
WHEN CAN THE WRITARE ISSUE:-1. The applicant or the person for whom
the application is made must be in the custody. 2. The application of Habeas
Corpus ordinarily should be by the husband or wife or son of detenu. 3. All the
formalities relating to arrest and detention was based on mala-fides e.g. long delay
in communication of the grounds of arrest. 4. The order of arrest must be defective
in substance. 5. Vague and indefinite grounds of detention can also be one of the

good grounds for getting a writ of Habeas Corpus issued. 6. Order of detention is
tainted with irregularity.
WHEN THE WRIT OF HABEAS CORPUS CANNOT ISSUED
If the application is made to High Court and place where the person is detained is
outside the jurisdictional limits of that High court.
I) When during the pendency of writ petition the person in question is released.
II) When detention is in execution of any sentence on indictment of a criminal charge.
III) When a person is detained under a preventive detention law.
2. WRIT OF MANDAMUS:- Writ of Mandamus means, The writ of mandamus is
a high prerogative writ of a most extensive remedial nature and is in the form of a
command issuing from the High Court of Justice, directed to any person,
corporation or inferior court requiring him or them to do some particular things
therein specified which appertains to his or their office and is in the nature of a
public duty.
IN WRIT OF MANDAMUS THERE MAY BE COMMAND
The writ of mandamus to do a particular thing or to abstain from doing a particular
thing i.e. the command may be either positive or negative. It lies in respect of
rights and duties of a purely moral character. Where there is no duty but only a
power to do a thing mandamus will not lie to enforce the exercise of the power
unless the power is coupled with a duty to exercise it.
WHEN THE WRIT IS GRANTED:- The writ of mandamus is granted to a
person whose rights have been infringed, in the following situations:1. The petitioner has a legal right.
2. That legal right has been infringed.
3. That the reason of infringement was the non performance of the corresponding
duty by the public authority.
4. The petitioner has demanded the performance of that legal duty by that public
authority and the authority has refused to act.
5. The duty sought to be enforced must be of a public nature, i.e. created by some
statute and not of a private nature.
WHEN WRIT OF MANDAMUS CANNOT BE LIED:- The writ of mandamus
does not lie in the following circumstances:1.When the duty is to do ministerial work. 2 When the duty is merely discretionary.
3.To enforce contractual obligation. A Pb.Engg.College v/s Sanjay Gulati-1983.
3. WRIT OF PROHIBITION:- A writ of Prohibition is a judicial writ issued by a
court of Superior jurisdiction directing an inferior court for the purpose of
preventing the inferior court from usuriping a jurisdjiction with which it is not
legally vested or to compel courts entrusted with judicial duties to keep within the
limits of their jurisdiction. Thus the writ of prohibition lies only against judicial

a.
b.

3.

1.
2.
3.
4.

5.

and quasi-judicial and quasi-judicial authorities. Refer a case of A.G.Gubert v/s

Registrar High Court Allahabad-1959 in this regard.
WHEN THE WRIT CAN BE ISSUED:- The writ of Prohibition can only be
issued when the following situations arise:When both excess of jurisdiction and absence of jurisdiction, violation of natural
justice, fraud, contravention of the laws of the land.
Writ of Prohibition can be issued to a judicial or quasi-judicial body which is
inferior to the issuing court.
Here it is pertinent to mention here that the existence of an alternative remedy is no
bar to the issue of prohibition.
A WRIT OF CERTIORARI:- It is a command or order by the superior court to
an inferior court or tribunal to transmit a record or cause or matter pending before
them to the superior court not to proceed with the case which is not within its
jurisdiction and also to quash any order made by the court in such a case. If the
order of inferior court is found to be without jurisdiction or against the principles
of natural justice, it will be quashed as held in the case of Champalal v/s The
commissioner of Income Tax-1970.
WHO MAY APPLY:- Any person whose legal right has been violated can apply
for the issue of this writ. Any person may on behalf of a group of persons or
society or persons at a large may apply.
GROUNDS ON WHICH WRIT IS ISSUED:-When the following circumstances
or arise the writ of Certiorari can be granted:The act, order or judgment in respect of which the writ is sought to be issued
should be the act, order or judgment of an inferior court or statutory body
exercising judicial or quasi-judicial functions.
Such courts or body must have acted in absence or in excess of the jurisdiction
vested in it the principles of natural justice so as to render such act order or
judgment invalid.
Where there is violation of the principles of natural justice so as to render such act
order or judgment invalid.
When there is an error apparent on the face of record.
As it has been held in the case of Gujrat Steel Tubes v/s Its Mazdoor Sabha
-1980. As held by the court that every order cannot be corrected merely because it
is wrong. It can be quashed if it is vitiated by the fundamental flow of gross
miscarriage of justice.
The grounds mentioned above are sufficient to quash the orders are self
explanatory.
WRIT OF QUO-WARRANTO:- A writ of Quo-Warranto is issues by the court
seeks from the person to whom it is issued information as to the warrant or

authority by which the said person supports his right to an office franchise or
liberty.
It lies against a person who claims or usurps an office franchise or liberty with
respect to which information is sought so that such persons right to the same may
be determined in the light of the authority or warranto cited by such person in
support thereof. In case of D.C.Jain v/s University of Jodhpur-1977:
WHEN THE WRIT OF QUO-WARRANTO IS ISSUED:- The writ of quowarranto can be issued when there is:1. When an illegal usurpation of public office by an unauthorized person.
2. When the public office and not a private office is of a substantive nature.
3. The person proceed against has been in actual possession and is the user of
particular office in question.
COMPARISION OF THE JURISDICTION OF THE H. C. & SUPREME COURT

I) The right guaranteed by article 32 can be exercised for the enforcement of

fundamental rights. It can be invoked only for the enforcement of fundamental
rights and no for other purpose.
II) The power of High Court to issue writs cannot be in derogation of Supreme Court
under Art. 226. An order under art.32 will supersede the orders of the High Court
previously passed.
III) An application under Art. 32 may always be made first to the Supreme Court since
art. 32 is itself a fundamental right. There is no need to resort to Art. 226 before
approaching the Supreme Court under Art. 32.
IV) Under art. 226 the jurisdiction of the High court to issue writ is limited to its
territorial jurisdiction i.e. within state whereas Supreme Court can issue the writs
against any authority throughout the territory of India.

3. Procedure of removal of Judges of the Supreme Court with the help of

decided cases.
PROCEDURE OF REMOVAL OF JUDGES:- A judge may be removed from
his office by an order of the President only on grounds of proved misbehavior or
incapacity. The order of the President can only be passed after it has been
addressed to both Houses of Parliament in the same session. The address must be
supported by a majority of total membership of that House and also by a majority
of not less than two thirds of the members of that House present and voting under
article 124 clause 4 of the constitution of India.

The procedure of the presentation of an address for investigation and

proof for misbehavior or incapacity of a Judge will be determined by Parliament by
law on the basis of provisions laid down in article 124(5) of the constitution. The
security of tenure of the Supreme Court Judge has been ensured by this provision
of the Constitution.
A very important judgement in the case of K. Veeraswami v/s Union Of India1991, It was held that a Judge of the Supreme Court and High court can be
prosecuted and convicted for criminal misconduct.
IMPEACHMENT OF JUSTICE V. RAMASWAMI:- Mr. V.Ramaswami was a
sitting Judge of Supreme Court of India. He was appointed as a Judge of Madras
High Court during 1987. He was transferred to Punjab & Haryana High Court as
Chief Justice. He was charged with having exceeded limits on telephone expenses
and misuse of official cars. Motion sponsored by 108 MPs of Ninth Lok Sabha
for his impeachment.
The committee was constituted for enquiry and Mr. Ramaswami challenged
the findings of Enquiry committee. The Supreme Court held that he has no right to
challenge the findings of the Inquiry Committee. The impeachment however was
defeated in the Lok Sabha as it failed to get support of the two-third of the
members present and voting.
Essentially to keep judiciary independent of the executive. The requirement of
two-third majority in Parliament could not have been conceived to provide
safeguard to a Judge whose conduct was under a cloud. The biggest victim of his
conduct has been the Judiciary.
FORCED RESIGNATION NOT PROVIDED IN THE CONSTITUTION:
AFFECTS THE INDEPENDENCE OF THE JUDICIARY.
In a Landmark judgment in C.Ravi Chandra Iyer v/s Justice A.M.Bhattacharya
-1995, The Supreme Court held that only the Chief Justice of India considered to
be the first among judges who can take action against an High Court Judge or
Chief Justice who has been observed bad conduct. The division bench of judges
gave a legal sanction to an inhouse procedure by judiciary only to be adopted by
the Chief justice of India for taking action against a High Court Judge of chief.
The court under article 217 (1) provided the procedure for removal of a Judge
from his office has been laid down no other procedure can be adopted. The
supreme court held that the resolution passed by Bar Council and Bar Association
against the Chief Justice of Bombay, alleging bad conduct and pressurize or
coercing him to resign.
Highlighting the importance of judicial activism of the Apex court and High court
Sh. K. Ramaswamy Justice observed that, The judge cannot retain his passive role
when he administers the law under the constitution to give effect to the
constitutional ideals.

The Judge must act independently if he is to perform the function as

expected of him and he must feel sure that such action of his will not lead to his
downfall.

4. Discuss the law relating to transfer of judges from one High Court to
another. Can such orders of transfer be judicially reviewed?
INTRODUCTION: - Provisions made in article 124 of the constitution of India
that the President of India is required to consult legal experts regarding transfer of
Judge from one High Court to another. The President however has a right to differ
from them and take a contrary view. Consultation does not mean concurrence and
the President is not bound by it.
Definition of Article 222:-The President may after consultation with the Chief
Justice of India transfer a judge from one High Court to any other High Court.
When a Judge has been transferred he shall during the period he serves after the
commencement of the constitution Act-1963 as a Judge of the other High Court be
entitled to receive compensatory allowance in addition to his salary. Such
compensatory allowance as may be determined by Parliament by law or President
my fix.
1. In S.P. Gupta v/s Union of India-1982, a popular case regarding transfers of
Judges. The Supreme Court agreed with the meaning of the term consultation as
explained by the majority in Sankalchand Sheths case-1977. However the only
ground on which the decision of the government can be challenged is that it is
based on mala fide and irrelevant considerations.
It means that the ultimate power to transfer or appoint judges is vested in the
Executive from whose dominance and subordination was sought to be protected.
The Supreme Court had used its power by ruling that constitution functionaries had
merely a consultative role and that power of transfer and appointment of judges is
solely and exclusively vested in the Central Government.
It is submitted that the majority judgment of Supreme Court in the judges
transfer was bound to have an adverse affect on the independence and impartiality
of the Judiciary. Bhagwati, J., has therefore in his judgment suggested for the
appointment of a Judicial Committee for recommendations in this regard.
In historic judgment in S.C. Advocate-on Record Association v/s Union of
India-1993, popularly known as Judges Transfer case a nine judge bench of the
Supreme Court by a 7/2 majority overruled its earlier judgment in the above case
and held that in the matter of appointment of the Judges of the Supreme Court and
the High Courts the Chief Justice of India should have primacy.
The matter was brought before the court through PIL writ petition filed
by an advocate of the Supreme Court seeking relief of filling up vacancies in the
higher judiciary. The court laid down detailed guidelines governing appointment
and transfer of Judges and held that the greatest significance should be attached to
the view of the Chief Justice.

That no appointment or transfer of any judge of the Supreme Court or a High

Court can be made unless it is conformity with the opinion of the Chief Justice of
India. Only in exceptional cases and for strong reasons the names recommended
by the Chief Justice may not be considered for transfer.
Can such orders of transfer be judiciary reviewed:- Sole opinion of Chief
Justice without following consultation process, not binding on government it can
be reviewed judiciary. In re Presidential Reference-1999, a nine judges bench of
Supreme Court has held that the recommendations made by the Chief Justice on
the transfer of judges of High Courts without following the consultation process
are not binding on Government. The court gave its opinion on the nine questions
raised by the President under Art.143, showing controversy over the
recommendations by CJI. The court held that the sole individual opinion of CJ
does not constitute consultation of within the meaning of article. Chief Justice
should consult collegiums of four senior most judges of the S.C.; he should not
send the recommendation to the govt. The collegiums must include the successor
Chief Justice. Collegiums will send his recommendations in writing to the Govt.,
for further action.

1.

2.

3.

4.

5.

5. Explain in detail the Powers of High Court.

INTRODUCTION: - Under article 227 every High Court has the following
powers in their jurisdiction. Article 225(a) gives jurisdiction to High Court (b) the
law administered in the existing High Court. (c) The powers of the Judges in
relation to the administration of justice in the court, (d) the power to make rule of
the High Court shall be the same as immediately before the commencement of this
constitution. The powers of the High Courts can be changed both by the Union
Parliament and the State Legislatures.
POWER OF HIGH COURTS:- There are following powers of the High Court:Power of superintendence over all courts: - Art. 227 of the constitution provide
the power of superintendence conferred on High Court by this article is a very
wide power. The High Court has the power of superintendence over all courts and
tribunals through- out the territory in relation to exercises his jurisdiction powers.
For this purpose High Court may call returns from, to make & issue general rules
and prescribed forms for regulating the work and Accounts, to setup the fees to be
given to the sheriff, clerks, attorneys, advocates and pleaders. However this power
does not extend over any Court or Tribunal constituted by law relating to the
Armed Forces.
Power under article 226: This power is wider than the power conferred on the
High Court to control the inferior courts through writs under article 226. It is not
confined only to administrative superintendence but also judicial superintendence
over all subordinate courts within its jurisdiction as held in case of Waryam Singh
v/s Amar Nath-1954.
To keep the inferior courts within their limits:- The power of superintendence
conferred on the High court by article 227 being extraordinary to be exercised
most sparingly and only in appropriate cases in order to keep subordinate courts
within the bounds of their authority and not for correcting mere error of facts
however erroneous those may be as held in a case of Waryam singh v/s
Amarnath-1954.
Transfer of certain cases to High Courts:-Under article 228 the High Court has
power o withdraw a case from a subordinate court, if it is satisfied that a case
pending in a subordinate court involves a substantial question of law as to the
interpretation of the Constitution. It may then either dispose of the case itself or
may determine the said question of law and return the case to subordinate court
with a copy of its judgment. The subordinate court will then decide the case in
conformity with the High Courts judgment.
To take disciplinary action: - Art. 235, the High Court has disciplinary
jurisdiction over subordinate court. It has been held that the Government had no
jurisdiction to take disciplinary action against a District Judge. It is the High Court

alone which is competent to exercise his disciplinary power against a judge of the
inferior court as held in a case of State of Haryana v/s Inder Parkash-1976 and
State of West Bengal v/s Nripendra nath Banerjee-1966. It was held & the High
Court quashed an order of the government for compulsory retiring a senior
subordinate judge. It was also held that the transfer of the District Judge was also
beyond the power of the Governor and had to be made by High Court the power
vested in it by article 235 as held in a case of State of Assam v/s Ranga
Mohammed-1967.
6. CPC amendment does not affect High Courts Power:- In a case of Surya Dev
Rai v/s Ram Chandra Rai-1976, it was held that what was the impact of
amendment in section 115 of CPC brought about on the power and jurisdiction of
the High court. The Supreme Court as held that the amendment in sec.115 of the
CPC does not affect the jurisdiction and the powers of the High Court under article
226 and 227. The judgments passed by the subordinate courts are open to challenge
and continue to be subject to certiorari and supervisory jurisdiction of High Court.
7. Power to issue orders of writ :- Article 226 provides that notwithstanding
anything in Article 32 every High Court shall have the power throughout the
territorial limits in relation to which it exercises jurisdiction to issue to any person
or authority including the appropriate cases any government within those territories
directions orders of writ in the nature of habeas corpus, mandamus, prohibition,
quo warranto and certiorari or any of them for the enforcement of fundamental
rights but also other legal rights as is clear from the words any other purpose. In a
landmark judgment in L. Chandra Kumar v/s Union of India-1997, court held
that the power of judiciary over legislative action vested in the High Courts under
article 226.
8. Interim Relief: - In 44th. amendment Act-1978, article 226 and added a new
clause (3) for regulating the procedure regarding the power of the High Court to
issue interim orders which are passed against a party without:
i)
Furnishing him the copies of such petition.
ii)
Without giving him an opportunity of being heard.
However if any party makes an application to the High Court for the vacation of
such order the High Court shall be bound to dispose of such an application within
two weeks. It the High Court fails to dispose of the application within the period of
two weeks the interim order shall on the expiry of the said period stand
automatically vacated. The power to issue interlocutory order under art.226 should
be used with circumspection.
6. Write a critical note on the Power of Supreme Court to punish for its
contempt. Can S. Court punish for contempt of courts subordinate to it?

INTRODUCTION:- Critical Note on the Power of Supreme Court to Punish

for its Contempt:-Supreme Court shall have all the powers of such a court
including the power to punish for contempt of itself under article 129 of the
constitution.
1. COURT OF RECORD: A court of record is a court whose records are admitted
to be of evidentiary value and they are not to be questioned when they are
produced before the court. Once a court is made a Court of Record, its power to
punish for contempt necessarily follows from that position. Contempt of Courts
Act-1971 defines the powers of courts for punishing contempt of courts and
regulates their procedure as in the, civil contempt: means willful disobedience to
any judgment, decree, direction, order, writ or other process of a court. Criminal
contempt:-Publication written, spoken or by words or by visible representation of
any matter or doing of any act of scandalizes, prejudices or interferes or to interfere
or to obstruct administration of justice. Case Mohd.Aslam v/s Union of India1994.
In Delhi Judicial Service Assn. v/s State of Gujrat-1991: It has been held
that under Art. 129 the Supreme Court has power to punish a person for the
contempt of itself as well as of its subordinate courts.
2. Ayodhya Case C.M of U.P. punished for Contempt: - In a case of
Mohd.Aslam v/s Union of India-1994, the Supreme Court held that the C.M. of
Uttar Pradesh Mr. Kalyan Singh was guilty of Contempt of Court for violating the
order of the court not to allow a permanent structure on the disputed land. The
court awarded a token sentence of one day and a fine of Rs.2000/-.
3. Manipur Assembly Speaker Borobabus case:-The Supreme Court directed
the Union government to produce before the court Manipur speaker sh. Borobabu
who had committed contempt of court by violating the order. The Judge said that it
is our constitutional duty which required us to make this order to uphold the
Majesty of law and justify the confidence of the people that no one in this country
is above than law. The contempt proceedings were dropped against him when he
appeared before the court and tendered an unconditional apology.
4. In an important Judgment in the case of Hindustan Times-1994: The Supreme
Court held that neither the Supreme Court nor the High Court has power to direct
dispossession of any one in a contempt. Under article 215 court punish for
contempt of court includes all necessary and incidental powers to effectuate that
jurisdiction.
5. The court cannot invest itself with the disciplinary jurisdiction of the Bar
Council of India and State Bar Council to punish an advocate for contempt of the
Court. This power is vested in the Disciplinary Committee of the Bar Council
under the Advocates Act. A complaint of professional misconduct is required to be
tried by the Disciplinary Committee of Bar Council.

Can Supreme Court punish for contempt of courts subordinate:- In re Vinay

Chandra mishra -1995, Supreme Court has examined the scope and extent of the
power of contempt in detail and held that under article 129, 215 and 142 of the
constitution it has power suo motu to take cognizance of contempt proceedings
against the contemnor. The Supreme Court not only with the power to punish for
contempt of itself but also of lower courts and tribunals in its capacity as the
highest court of record and also charged both the appellate and superintending
power over lower courts and tribunals as detailed in the constitution.
Similarly a Senior IPS Officer Mr. M.S.Ahlawat was sentenced to one years
rigorous imprisonment and punishment for criminal contempt for fabrication and
forgery of document in connection with a case of wrongful confinement of two
minor boys.
Similarly in another case a senior IAS officer of Karnataka, Mr. Vasudevan was
sent to jail for contempt of court.
It is ethically submitted that the object for vesting such a power in the Court was to
uphold the majesty of law, the rule of law which is the foundation of democratic
society. The judiciary is the guardian of the rule of law. Judiciary has special
function to perform and to see that all individuals and institutions including the
executive, legislative act within the framework of not only law but also the
fundamental law of the land.
CONCLUSION:- In a number of cases the Supreme Court has exercised its power
of contempt to punish erring bureaucrats who were either found guilty of
disobeying certain Courts orders for enforcing fundamental rights of citizens or
were charged with corruption. In 1995 or the first time since independence a
senior IAs officer was convicted for contempt of courts and sentenced to
imprisonment by the highest Court. The Senior IAS officer of Manipur who was
found guilty under the Prevention of Corruption Act-1947, for awarding a contract
on exorbitant rates to a person who was blacklisted by him (refer a Hindustan
Times of Oct.15, l995).

UNIT-II
7. Discuss the relationship between President of India and his Council of
Minister in India. Does President of India have any discretionary powers?

1.
2.
3.
4.
5.
6.

Ans:- Relationship between president council of ministers:- There shall be a

President of India, the executive powers of the Union shall be vested in the
President and shall be exercised by him either directly or through officers
subordinate to him in accordance with the Constitution of India. Without prejudice
to the generality of the provisions laid down in the Constitution the supreme
command of the Defence Forces of the Union shall be vested in the President and
to exercise of these powers shall be regulated by law.
However the President of India shall prevent the Parliament from conferring
by law functions on authorities other than the President, and be deemed to transfer
to the President any functions conferred by any existing law on the government of
any State or other authority.
The Council of Ministers:- Article 74 of the Constitution of India provides that,
There shall be a Council of Ministers with the Prime Minister as its head to
aid and advice the President in the exercise of his functions. The Prime
Minister shall be appointed by the President and other ministers shall be appointed
by President on the advice of the Prime Minister. The total strength of the ministers
shall not exceed 15 per cent of the total number of members of the House of
People.
Before a Minister enters his office the President shall administer to him the oath of
office and secrecy as provided under article 75(4) of the constitution. The Minister
shall hold office during the pleasure of the Parliament.
The President to appoint a Council of Ministers and he must exercise his functions
with the aid and advice of the Ministers.
The relation between the President and the Council of Minister is confidential
because article 74(2) of the constitution provides that the nature of advice tendered
by Ministers shall not be enquired into by the courts.
The Council of Ministers consists of three categories of Ministers, i) Minister of
Cabinet rank ii) Minister of state iii) Deputy Minister.
The Cabinet is the smaller body of Council of Ministers. The council of ministers
shall be collectively responsible to the House of the People.
That in case of 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.

Does President of India have any discretionary powers?

Yes the President of India may use his discretionary powers when:1. In case of multiple party systems as it prevails in India, if none is in a position to
gain required majority and a coalition government is to be formed, the President

can exercise a little discretion and select the leader of any party who in his opinion
can form a stable ministry. However it has been suggested that in such situation the
President must keep the certain conventions before finalizing his action in this
regard.
2. Mr. Charan Singh: The President invited the leader of opposition Mr.Y. B.
Chavan who had moved the no confidence motion to form the Govt. After four day
of hectic activities Mr. Chavan informed the President that he was not able to form
the government and up-to now the action of the President was not subject to any
criticism. Thereafter the President adopted an unusual course and asked Mr.
Charan Singh the leader of alliance and Mr. Desai the leader of largest single party
to submit the list of supporters, Mr.Singh showed a list of 262 whereas Mr.Desai
list contained only 236 members. It was clear that Mr. Singh did not have an
absolute majority in the House which should be of 270. On the ground that Mr.
Singh had the supporter of larger member of members than that of Mr.Desai, The
President invited him to form an alternative government but since the President
knew that Mr. Singh had no absolute majority he asked him to seek a vote of
confidence in the House within three weeks time.
3) In Setal Parsad Sexena v/s Union of India-1985, it was held that the
continuance of Shri Charan Singh as a caretaker Prime Minister ever after he had
failed to seek a mandate of the Lok Sabha three weeks after assuming the office of
the Prime Minister as directed by the President. The Janata Party was still the
largest single party in the House consisting of 205 members.
4) The President did not follow the convention of calling the leader of the
opposition. The President had said that he did not want to encourage defections by
calling upon Mr.Jagjivan Ram as a leader of the party of 205 members. This
appears to be fantastic because he made a great defector Mr.Charan Singh as Prime
Minister.
5) Thus it is clear that though in the above circumstances the President can
exercise his discretion in appointing the Prime Minister but it will certainly be
better to lay down certain conventions in this matter so as to avoid the situation
created by the unconstitutional action of the President.

8. What are the parliamentary Privileges? What privileges given to the

legislative chambers, their committees and members in India.
PARLIAMENTARY PRIVILEGES:-The constitutional provisions regarding
privileges of the State Legislature and Parliament are identical. While the article
105 deals with the privileges of Parliament whereas Act 194 deals with the
privileges of State Legislature. There are two privileges:1.Freedom of Speech :- That there shall be freedom of speech in parliament and
that no member of parliament shall be liable to any proceedings in any court in
respect of anything said or any vote given by him in Parliament or any committee
thereof under the article 105 of the constitution.
This act gives absolute immunity from courts for anything said within
the four walls of the House and if a member repeats or publishes a defamatory
speech made by him within the House, he does so, on his own responsibility and
risk and held for prosecution under Sec.500 IPC.
Art.121 prohibits any discussion in Parliament with respect to the
conduct of a Judge of the Supreme Court or a High Court in discharge of his
duties. Under rule 349 to 356 of Lok Sabha use of unparliamentarily language or
unparliamentarily conduct of a member is prohibited
2. Right of Publication of its Proceedings: - That no Member of Parliament shall
be liable to any proceeding in any court in respect of anything said or any vote
given by him in Parliament or any committee thereof and no person shall be liable
in respect of publication by or under the authority of either on the basis of
provisions laid down in article 105(2). In a case of Surendra v/s Nebakrishna1958, who was an editor of a newspaper, was held guilty of committing contempt
of court for publishing a statement of the House. It was held that there were many
advantages to the public which has the deepest interest in knowing what passes in
Parliament.
The object of the protection is to enable the members to speak their
mind in Parliament freely and fearlessly. The court held that the MPs who had
taken bribe and voted in Parliament against no confidence motion brought against
the Narsimba Rao government are entitled to the protection of Art. 105(2). The
Parliamentary Proceedings Act-1956 was passed which provides that no person
shall be liable to any proceeding civil or criminal in any court in respect of the
publication of the report of the proceedings of either House of Parliament unless it
is proved that publication of such proceeding expressly ordered to be expunged by
the speaker.
OTHER PRIVILEGES:- On the basis of provisions laid down in article 105(3)
of the constitution of India that the privileges of the House of Parliament and its

members were to be those which were enjoyed by the members of the House of
Commons in England on 26.01.l950. This article stands amended during 1978 in
its 44th Amendment Act. This amendment retained all the existing privileges which
were enjoyed by the members of Legislative in India. This means that the
privileges of each House of Parliament and State Legislatures will now be same as
existed immediately before coming into force of the 44th. Amendment. New
Privileges however can be defined by law and made by Parliament are as under:i)Freedom from Arrest:- A member of the Parliament cannot be arrested or
imprisoned on a civil proceeding within a period of 40 days before and 40days
after the session of the Parliament. This privilege is available against civil arrest
and does not extend to arrest or imprisonment on a criminal charge for contempt of
court or to preventive detention. Case of Smt. Indira Gandhi v/s Raj Narain1975. Ii) Right to exclude strangers from its proceedings:-In modern times
secret sessions are held only on exceptional occasions. Voters must be kept
informed about the working of their representatives in the Legislature. Iii) Right to
prohibit to publication of its Reports and Proceedings: In a famous Searchlight
case-1959, it was held by the court that publication of expunged portion of speech
constituted a breach of the privilege of the House. Iv)Right to regulate Internal
Procedings:-In a case of S.M.Sharma v/s Sri Krishna Sinha-1959, it was held
by the court that the validity of the proceedings inside the Legislature of a State
cannot be called in question on the allegation that the procedure laid down by law
has not been strictly followed. The House has exclusive right to regulate its own
internal proceedings under article 122. V)Right to punish Members or
Outsiders for contempt:- Each House has the power to punish its members for
Contempt of privilege. A member may be suspended or expelled from the House
or may be sentenced to jail. Famous example of Mrs. Indira Gandhi was expelled
from her membership and she was sentenced to jail, prorogued for committing
contempt of Parliament while she was PM. Vi) Privileges and Fundamental
Rights:-As provided in article 19(1) guarantees for freedom of speech and
expression to every citizen of India but this right is subject to reasonable
restrictions under art. 19(2), whereas in art. 105 is an independent right and is not
subject to any restrictions under Art.19 (1). Thus it is clear that the freedom of
speech under art.105 is different from the freedom of speech under article-19,
which is subject to restrictions.

9. What do you understand from the term Impeachment of the President.

Discuss various steps required to be taken for impeachment of President?
INTRODUCTION: - The President of India can be removed from the office for
violation of the constitution by impeachment. Such a motion of impeachment can
be initiated by any House of Parliament In such a case one fourth of the members,
of the house, intending to move such a motion have to serve a fourteen days notice
in writing. After the completion of the stipulated period the motion is discussed
and put to vote.
If two-thirds of the members support the motion that it is passed for
consideration of the other House. The other House on receiving the motion
investigates the changes. The President is allowed the opportunity to present his
defence either in person or through his nominee. If the House despite the defence
supports the motion by two-thirds majority the President stands impeached.
The President of India is entitled to certain legal immunity
during his tenure. He is not answerable to any court of law while discharging his
responsibilities. He cannot be arrested or imprisoned in connection with any civil
or criminal case. However civil suits may be instituted against him by serving at
least two months notice.
DEFINITION OF IMPEACHMENT: - Impeachment is the first of two stages in
a specific process for a legislative body to remove a Government official without
that official's agreement. The second stage is conviction.
Impeachment is so rare that the term can be misunderstood. A typical
misconception is to confuse it with involuntary removal from office. In fact, it is
only a legal statement of charges, paralleling an indictment in criminal law. An
official who is impeached faces a second legislative vote (whether by the same
body or another), which determines conviction, or failure to convict, on the charges
embodied by the impeachment. Most Constitutions require a supermajority to
convict. The word "impeachment" derives from Latin roots expressing the idea of
becoming caught or entrapped, and has analogues in the modern French verb to
prevent and the modern English impede.
The process should not be confused with a recall election. A recall election is
usually initiated by voters and can be based on "political charges", for example
mismanagement, whereas impeachment is initiated by a constitutional body
(usually a legislative body) and is usually based, but not always, on indictable
offences. The process of removing the official is also different.
Impeachment is a British invention. Following the British example, the
Constitutions of Virginia (1776) and Massachusetts (1780) and other States

thereafter adopted the impeachment doctrine. In private organizations, a motion to

impeach can be used to prefer charges.

PROCEDURE OF IMPEACHMENT OF PRESIDENT OF INDIA

Under Article 61, (1) When a President is to be impeached for violation of
the Constitution, the charge shall be preferred by either House of Parliament.
(2) No such charge shall be preferred unless(a) the proposal to prefer such charge is contained in a resolution which has been
moved after at least fourteen days' notice in writing, signed by not less than 1/4 th of
the total number of members of the House, has been given of their intention to
move the resolution, and
(b) Such resolution has been passed by a majority of not less than 2/3 rd of the total
membership of the House.
(3) When a charge has been so preferred by either House of Parliament, the other
House shall investigate the charge or cause the charge to be investigated and the
President shall have the right to appear and to be represented at such investigation.
(4) If as a result of the investigation a resolution is passed by a majority of not less
than 2/3rd of the total membership of the House by which the charge was
investigated or caused to be investigated, declaring that the charge preferred
against the President has been sustained, such resolution shall have the effect of
removing the President from his office as from the date on which the resolution is
so passed."
CONCLUSION:- The word 'Impeachment' is an origin of British convention
which means to remove a Government official without any official agreement and
after the impeachment conviction has been provided to that official. In India, it is a
quasi-judicial procedure and President can only be impeached on the ground of
violation of the Constitution.

1.

i)
ii)

iii)

iv)

UNIT-III
10. Discuss how the legislative Powers and Relations between the Union and
the States are distributed under the constitution?
INTRODUCTION:- The distribution of powers is an essential feature of
federalism. The object for which a federal State is formed involves a division of
authority between the National Government and the separate States. In fact the
basic principle of federation is that the legislative, executive and financial authority
is divided between the Centre and State not by any law passed by the Centre but by
Constitution itself. This is what the Indian Constitution does.
LEGISLATIVE RELATIONS:- The Constitution of India makes two-fold
distribution of legislative powers:With respect to Territory. 2. With respect of subject-matter.
Territorial Jurisdiction:- Article 245 of the constitution provides that, Parliament
may make laws for the whole or any part of the territory of India. Law made by the
parliament shall not be deemed to be invalid on the ground that it has extraterritorial operation i.e. takes effect outside the territory of India. Case of
A.H.Wadia v/s Income tax Commissioner Bombay-1949, court held that in the
case of sovereign Legislature question of extra-territoriality of any enactment can
never be raised in the municipal court as a ground for challenging its validity.
Jurisdiction with respect of subject-matter:- The constitution of India divides
the Legislative powers between the Union & States in three lists :Union List: - This list consists of 97 subjects. The subjects mentioned in the
Union list are of national importance i.e. defence, foreign affairs, banking,
currency and coinage, Union duties and taxes.
State List:- It consists 66 subjects but out of 66 four have been deleted by
constitutional amendments. These are of local importance such as public order and
police, local government, public health and sanitation agriculture forest fisheries
education state taxes and duties. The state has the exclusive power to make laws on
the above subjects.
Concurrent List: - This list contains 47 subjects. Some the new entries have also
been made by constitutional amendments. Both centre and state can make laws on
the subjects mentioned in this list. In case of any conflict between state and centre,
the central law will prevail.
i) Legislative Power is plenary:-The power of the Legislative under article 245 to
enact laws is a plenary power subject to its legislative competence and other
constitutional limitations. The power to make law includes the power to give effect
to it prospectively as well as retrospectively. The legislature has the power to alter
the existing law and has power to validate a law retrospectively subject to

constitutional limitations an ancillary power to legislate on the particular subject,

as held in the case of Govt. of A.P.v/s Hindustan Machine Tools-1975.
iii) Power of legislation declaring earlier decision invalid unconstitutional:-In the
case of State of Haryana v/s Karnal Co-Operative Farmers Society-1993, it
has been held by the court that legislature has power to render ineffective the
earlier judicial decisions by removing or altering or neutralizing the legal basis in
un amended law on which such decisions were founded but it does not have the
power to render ineffective the earlier judicial decisions.
DISTRIBUTION OF LEGISLATIVE POWERS:- It has pointed out that the
distribution of legislative powers between the Centre and the States. The nature of
distribution varies according to the local and political background in each country.
In American constitution enumerates the powers of the Central Government and
leaving the residuary power to the States.
1. The present constitution adopts the method followed by the Government of India
Act 1935 and divides the powers between the union and States in three lists: - i)
The Union List: consists of 97 subjects. The subjects are defence, foreign affairs,
banking currency and coinage, union duties and taxes. Ii) State List: it consists 66
subjects but out of 66 four have been deleted by amendments. These are local
Government, Public health and sanitation, agriculture, forest, fisheries and
education.iii) The Concurrent List: it contains 47 subjects some of the new
entries have also been made by amendment. Both centre and state make laws on
the subjects mentioned in these lists, In case of any conflict the law made by
Centre will be prevailed. In a case of Union of India v/s HS.Dhillon-1972.
2. The Residuary Powers: - Art. 248 of the constitution vests the residuary powers
in the Parliament. It says that the exclusive power to make any law with respect to
any matter not enumerated in the concurrent list. According to it Parliament has
exclusive power to make laws with respect to any matter not mentioned in the state
list or the concurrent list including any tax not mentioned in either of three lists.
Thus Indian Constitution is totally differing from USA, Switzerland and
Australia where residuary powers are vested in the States. This reflects the
leanings of the constitution makes towards a strong centre.

11. Discuss the scope and extent of the freedom of trade, commerce and
intercourse under the constitution of India.
INTRODUCTION: - That the trade, commerce and intercourse throughout the
territory of India shall be free. The freedom is guaranteed by the provisions made

in art301 in widest forms and applies to all forms of trade, commerce and
intercourse. It is subject to restrictions specified in article of the constitution. The
word trade means buying or selling of goods while the terms commerce includes
all forms of transportation such as by land, air or water. Thus the words trade,
commerce and intercourse covered all kinds of activities which are likely to come
under the nature of commerce.
DEFINITION OF TRADE, COMMERCE AND INTERCOURSE:- Article
301 of the constitution says, Trade and commerce and intercourse among the
States whether by means of internal carriage or ocean navigation shall be
absolutely free. The word absolutely free faces many difficulties so that is why in
India the Constitution itself lays down restrictions on article 301. It is also
mentioned here that the word free in this article does not mean freedom from
laws or regulations.
The object of Art.301:- The object of art.301 is the free movement and exchange
of goods throughout the territory of India which is essential in the interest of
economic unity of India. A case of Atibari Tea Co.Ltd., v/s State of Assam-1961.
In case of State of Mysore v/s Sanjeeviah-1967, the court held that the rule void
as it was not a regulatory but restrictive measure which infringed the right
guaranteed under article 301.
1. Power of Parliament t impose restrictions on trade, commerce and
intercourse:- Parliament may by law impose such restrictions on the freedom of
trade, commerce and intercourse between one State and another or within any part
of the territory of India as may required in the interest of pubic under article 302.
A leading case of Suraj Mal Roop Chand and Co., v/s State of Rajasthan-1967.
2. Restrictions on the legislative powers of the Union and States with regard to
Trade & Commerce: - In art.302 neither the Parliament nor the legislature of a
State shall have power to make any law, giving or authorizing the giving of any
preference to one State over another or making of any discrimination between
states by virtue of any entry relating to trade and commerce.
3. Restricions on trade, commerce and intercourse among States: - Art.304, (a)
impose restrictions on goods imported from other States any tax to which similar
goods manufactured or produced in that state. (b) Impose reasonable restrictions
on the freedom of trade, commerce or intercourse with or within state as may be
required in the interest of public. A case of Automobile Transport Ltd., v/s State
of Rajasthan-1962, provided that no amendment for the purposes of imposing
reasonable restrictions shall be introduced in the legislature without the approval of
the President.
4. Saving of existing laws and laws providing for State monopolies: - Article
305 saves existing laws and laws providing for State monopolies in so far as the
President may by order or directions as done in the case of Saghir Ahmad v/s

State of U.P.-1964, it appears from the judgment of the Court that in spite of such
amendment a law introducing such State monopolies might have to be justified
before the courts as being in the public interest or amounting to a reasonable
restrictions on trade & commerce under article 306 also.
5. Appointment of authority for carrying out the purposes of article-301:- As
per provisions Parliament may by law appoint such authority as it consider
appropriate for carrying out the purposes of article 301, 302, 303 and 304 and
confer on the authority so appointed such powers and such duties as it thinks
necessary.
CONCLUSION:- Keeping in view the facts mentioned above it is revealed that in
all Federations an attempt is made through constitutional provisions to create and
preserve a national economic fabric to remove and prevent local barriers to
economic activity. To remove the hurdles in the way of Inter-State trade and
commerce, Govt., should make the country as one single economic unit so that
economic resources of all the various units may be utilized to the common
advantage of all.

12. Explain the repugnancy between Union Law and State Law. What tests
have been laid down by the Supreme Court for determining the repugnancy
between Union Law & State Law?
INTRODUCTION:- The repugnancy between Union Law and State Law applies
where there is inconsistency between a Central Law and a State Law relating to a
subject mentioned in Concurrent List. A similar position described in the case of
M. Karunanidhi v/s Union of India-1979, the court reviewed all its earlier
decisions and summarized the test of repugnancy.

i)
ii)
iii)
iv)

DEFINITION:- Article 254 of the Constitution of India says that if any

provision of law made by the Legislature of the State in repugnant to any provision
of a law made by Parliament which is competent to enact or to any provision of the
existing law with respect to one of the matters enumerated in the Concurrent List,
then the law made by the Parliament whether passed before or after the law made
by legislature of such stage or as the case may be the existing law shall prevail and
the law made by the legislature of the State shall to the extent of the repugnancy be
void.
Repugnancy how arises between the two statutes: - It arises in the following
situations:It must be shown that there is clear and direct inconsistency between the two
enactments i.e. central Act and State Act, which is irreconcilable so that they
cannot stand together or operate in the same field.
There can be no repeal by implication unless the inconsistency appears on the face
of two statutes.
Where two statutes occupy a particular field but there is a room or possibility of
both the statutes operating in the same field without coming into collusion with
each other, no repugnancy results.
Where there is no inconsistency but a statute occupying the same field seeks to
create distinct and separate offences, no question of repugnancy arises and both the
statutes continue to operate in the same field.
Tests which have been laid down by the Supreme Court for determining the
repugnancy between Union Law & State Law:1. In M. Karunidhis case, The Supreme Court held that state act was not
repugnant to the Central Acts and therefore it did not repeal the Central Act which
continued to be in operation even after the repeal of the State Act and can be
invoked for the purpose of prosecuting the appellant. The State Act creates distinct
and separate offences with different ingredients and different punishments and
does not in any way collide with central Acts.
2. In Deep Chand v/s State of U.P.-1959, the validity of the U.P. Transport
services Act was involved. The State Government was authorized to make the
scheme for Nationalization of Motor Transport in the State. The existing law did
not contain any provision for the Nationalization of Motor Transport. The
Parliament with a view to introduce a uniform law amended M.V. Act and added a
new provision enabling the State Govt. to frame rules of nationalization of Motor
Transport. The court held that since both the Union Law and the State Law
occupied the same field, the State Law was void to the extent of repugnancy to the
Union Law.
3. In Zaverbhai v/s State of Bombay-1954, The Parliament enacted the Essential
Supplies Act for regulating production, supply and distribution of essential

commodities. A contravention of any provision of the above act was punishable

with imprisonment up-to three years or fine or both. On considering the
punishment inadequate, the Bombay Legislature passed an Act enhancing the
punishment provided under the central law. The assent of the President received
and thus prevailed over the Central Law. However later on the Parliament amended
its act. It was held by the Supreme Court that both occupied the same field, the
State law become void as being repugnant to the Central Law.
CONCLUSION:- Where a law made by the legislature of a State with respect to
one of the matters enumerated in the concurrent list contains any provision
repugnant to the provisions of any earlier law made by Parliament or an existing
law with respect to that matter then the law so made by the legislature of the State
shall if it has been reserved for the consideration of the President and has received
his assent prevail in that state.
From the gist of the above decisions, taken by the Supreme Court it is
revealed that the Supreme Court has done an important role and judged the case
impartial way by giving correct nature of justice.

13. Explain Doctrine of Pleasure with decided cases of Law.

INRODUCTION: - According to common law a civil servant holds his office
during the pleasure of Crown. This means his services can be terminated at any
time by the Crown without assigning any reason. Even if there is a contract of
employment between the Crown. 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 services. The doctrine of pleasure is based on the
public policy.
DEFINITION: - Article 310 of the Indian Constitution incorporates the Common
Law doctrine of pleasure. It expressly provides that all person who are members of
the Defence services or Civil Service of Union or members of the State Services
hold office during the pleasure of the President and the Governor respectively. It
pertinent to quote here that the English law has not been fully adopted in this
article.
A civil servant in India could always sue the crown for arrears of salary as has
been done in a case State of Bihar v/s Abdul Majid-1954, the rule is qualified by
the opening words of Art.310 itself places restrictions and limitations on the
exercise of the pleasure and is further limited by Art.311 (2).The services of the
permanent govt. employee cannot be terminated except in accordance with the
rules made under Art. 309 subject to the procedure laid down in art.311 (2) of the
constitution and Fundamental Rights.
The above doctrine of pleasure is invoked by the Government in the
public interest after attaining the age of 50 years by the Govt. servant or has
completed 25 years of service. This is constitutionally permissible as compulsory
termination of service. It does not amount to dismissal or removal by way of
punishment. However the Govt. reserves its right under rule to compulsory retire a
Govt. servant even against his wish.
There is a corresponding right of the Government servant under
financial rules to voluntarily retire from service by giving three months notice.
There is no condition of acceptance of the request for voluntary retirement by the
Govt., when an employee exercises his right under financial rules as held in the
case of Dinesh Chandra v/s State of Assam-1978.
Similarly under article 310 the government has the 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 matter of policy on which the court has not voice as held in the case
of K. Rajendran v/s State of Tamil Nadu-1982.

RESTRICTION ON DOCTRINE OF PLEASURE

The constitution of India laid down certain limitations on the exercise of doctrine
of Pleasure, some of them are as under:1. The pleasure of the President or the Governor is controlled by the provisions of
Article 31, so the field covered by article 311 is excluded from the operation of the
doctrine of pleasure as held in the case of Motiram v/s North Eastern Frontier
Railway-1964, it was held that the pleasure must be exercised in accordance with
the procedural safeguards provided in article 311.
2. It ought to be mentioned here that the tenure of the Judges of Supreme Court, High
Court, Auditor General of India, Chief Election Commissioner and members of the
Public Service Commission 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.
3. The doctrine of pleasure is subject to the fundamental rights as held in a case of
Union of India v/s P.D. More-1962.

14. Explain the Doctrine of Pith & Substance. Also about Interstate Council.
INTRODUCTION:- Within their respective spheres the Union & State
Legislature are made supreme and they should not encroach into the sphere
reserved to the other. If a law passed by one encroaches upon the field assigned to
the other the court will apply the doctrine of pith and substance to determine
whether the legislature concerned was competent to make it.
Definition:- Pith and substance of law i.e. the true object of the legislation or a
statute relates to a matter with the competence of legislature which enacted it. It
should be held to be intra-virus even though it incidentally trench on matter not
within the competence of the legislation. In order to ascertain true character of the
legislation one must have regard to the enactment as a whole to its object and to
the scope and effect of its provisions as held in a case of A.S.Krishna v/s State of
Madras-1957.
1. The Privy Council applied the doctrine in Profula Kumar Mukerjee v/s Bank of
Khulna-1947, in this case the validity of the Bengal Money Lenders Act-1946.
The court held that the Bengal Money Lenders act was in, pith and substance a
law in respect of money lending and money lenders a state subject and was valid
even though it trenched incidentally on Promissory Note.
2. In a case of State of Bombay v/s F.N. Balsara-1951, the Bombay Prohibition Act,
which prohibited sale and possession of liquors in the state, was challenged on the
ground that it incidentally encroached upon import and export of liquors across
custom frontier. The court held that the act valid because the pith and substance of
the act fell under the State List not under the Union list even though the Act
incidentally encroached upon the Union Powers of Legislation.
3. A case of Ishwari Khetal Sugar Mills v/s State of U.P.-1980, U.P.Sugar
Undertaking Act-1971 was challenged on the ground that the State Legislature had
no competence to enact the impugned law on the ground that it fell under
Parliament legislative power. The court however rejected these contentions and
held that there was no conflict between that state Act and the Central Act under
Industries Act, 1951, the act being Pith and substance.
INTER-STATE COUNCIL
INTRODUCTION:- The main object behind this provision is to establish regular
recognized machinery for inter-government consultation and inter-state relations so
that departments or institution of co-ordination and research are to be maintained
in such matters as agriculture, forestry, irrigation, education and public health.
Inter-State council gives opportunity to the States to express their views freely on
common matter and enable the Centre to understand the feelings of the States.
DEFINITION:- The President of India has exercised this power by consulting the
Centre Council of Health and Central Council of Local Self-Government and The

State Re-Organization Act, has set up five Zonal Councils. The Zonal Councils
consists Union Home Minister as ex-officio-Chairman, Chief Minister of the State
and two other ministers nominated by the Governor of the member state and one
person as advisor from Planning Commission and Chief Secretary of the State.
These councils have been established for the promotion of Co-operation and for
making the efforts to solve common problems of the member states.
Establishment of Inter-State Council: - The President of India in exercise of his
powers under article 263 has constituted the Inter-State Council on May 28, 1990.
The Prime Minister shall be the Chairman of the Inter-State Council and preside
over its meeting. In his absence he may nominate any Union Minister of Cabinet
Rank to preside over the meeting.
Procedure of the Council: - The council shall in the conduct of its business
observe the following procedure: - 1.The council shall adopt guidelines for
identifying and selecting issues to be brought before it. 2. Council may meet thrice
in a year at time and place as Chairman decides & will hold under camera. 3. The
members and the Chairman shall form questions to be discussed in the meeting. 4.
The council however may observe such other procedure as it may with the
approval of the Central Government from time to time.
Duties of the Council: - The council shall be a recommendatory body and it shall
perform the following duties:-1.Investigate and discuss subjects of common
interest. 2. Make recommendations for the better co-ordination of policy and
actions on such subjects. 3. Delibrate on such matters of general interest to the
States referred by the Chairman to the Council.

UNIT-IV
15. Discuss the procedure of amendment of the Constitution. Can Parliament
amend the basic structure of Indian Constitution? Refer to case law.
INTRODUCTION: - Amendment of the constitution n is made with a view to
overcome the difficulties which may encounter in future in working of the
Constitution. No generation has monopoly of wisdom not has it a right to place
fetters on future generations to mould the machinery of government according to
their requirements. If no provisions were made for the amendment of the
Constitution, the people would have recourse to extra constitutional method like
revolution to change the Constitution as it has been done in the case of
Keshwanand Bharti v/s State of Kerla-1973.
PROCEDURE OF AMENDMENT OF CONSTITUTION:- It is pertinent to
mention here that the machinery of amendment should be like a safety valve, so
devised as neither to operate the machine with two great facilities nor to require, in
order to set in motion an accumulation of force sufficient to explode it. Thus we
can safely say that the Indian federation will not suffer from the fault of rigidity of
legislation because it has the features of his flexibility. In Art. 368 it laid down
that bill o amend the constitution may be introduced in either of House of
Parliament. It must be passed by each House by a majority of the total membership
to that House present and voting. When the bill is passed by both Houses it shall be
presented to President for his assent and after the assent of the President the bill the
constitution stand amended. For the purpose of amendment the various articles of
the constitution are divided into three categories:1. Amendment by simple Majority:- Articles that can be amended by the Parliament
by a simple majority as that required for passing of any ordinary law. The
amendments contemplated in Articles 5, 169 and 239A can be made by simple
majority. These articles are specifically excluded from the purview of the
procedure prescribed in article 368.
2. Amendment by special majority: - The article 368 also provides some articles
which can be amended by a special majority. All constitutional amendments except
article 5, 169 and 239A come within this category and must be effected by majority
of the total membership of each House of Parliament as well as by a majority of
not less than 2/3 of the members of that House present and voting.
3. By special majority and Ratification by States:- Articles which require in
addition to the special majority ratification by not less than of the State
Legislature. The states are given an important voice in the amendments of these
matters. These are fundamental matters where states have power under the
constitution. The following provisions require ratification by the States:-

i)
ii)
iii)
iv)
v)

Election of President under art. 54 and 55.

Extent of Executive powers of Union & States articles 73, 162.
Articles dealing with judiciary Supreme Court, High Courts in the States and
Union Territories i.e. 124 to 147, 214 to 231 and 241.
Distribution of Legislative powers between the Centre and State 245 to 255.
Article of 368 also.
Can Parliament amend the basic structure of Indian Constitution
1. In Golak Nath v/s State of Punab-1971 & Shankri Parsad v/s Sajjan singh
cases, the court held that Parliament had no power from the date of decision to
amend Part III of the constitution so as to take away or abridge the fundamental
rights.
2. In Keshavanand Bharti v/s State of Kerla-1973, the petitioner contended that
the amending power was wide but not unlimited u/a368, the court by majority
overruled the Golak nath case but held that under article 368, Parliament is not
empowered to amend the basic structure or framework of the constitution.
3. As regards the scope of amending power contained in Art.368 the six Judges
held that there are implied limitations on the amending power of Parliament and
art.368 does not confer power to amend the constitution so as to damage or
destroy the essential elements or basic features of the constitution.
4. In Minerva Mills v/s Union of India-1980, Supreme Court by 4 to 1 majority
struck down clause 4 and 5 of article 368 on the ground that these clauses
destroyed the essential feature of the basic structure of constitution.

Question No.16: Write notes on Financial Emergency & Election of

Panchayat.
FINANCIAL EMERGENCY:- INTRODUCTION: - . Sometimes such a critical
situations arisen whereby the financial position or the creditability of India
becomes worst and to tackle such situations if the President of India satisfied

1.
2.
3.

4.
5.
6.

himself that the time has come whereby he may by a proclamation make a
declaration to this effect.
WHAT IS FINANCIAL EMERGENCY:- Article 360 of the constitution of
India provides that if the President of India is satisfied that situation has arisen
whereby the financial stability or credit of India or part of the territory thereof is
threatened, he may by a proclamation make a declaration of Financial Emergency
in the State.
The 44th. Amendment the article 360 makes self-contained with the following:That the proclamation of financial emergency shall cease to be in operation at the
expiry of two months unless it has been approved by both Houses of Parliament.
That such a proclamation may be revoked or varied by the President by a
subsequent proclamation.
That if the Lok Sabha is dissolved during the period of two months and resolution
is approved by the Rajya Sabha but not by the Lok Sabha the proclamation shall
cease to operate at the expiry of 30 days, from the date on which the new Lok
Sabha sits.
During the period when such proclamation is in operation the executive authority
of the Union shall extend to the giving directions to any State to observe such
canons of financial propriety.
Any such direction may include a provision for the reduction of salaries and
allowances of all or any class of persons serving in a State including the Judges of
the Supreme Court and High Courts.
It may also require that all Money or Financial Bills are to be reserved for the
consideration of the President after they are passed by Legislature of State.
CONCLUSION: The constitution of India is unique in respect that it contains a
complete scheme for speedy re-adjustment of the peace-time government
machinery in movements of national peril. These provisions may appear to be
particularly in a constitution which professes to be built upon a large building of
fundamental rights and democracy. India had her in glorious days whenever central
power grew weak, the constitution guards stands against the forces of
disintegration.

ELECTION OF PANCHAYAT
INTRODUCTION:- The constitution of India in its provisions has laid down
directions for the preparation of electoral rolls and to conduct of all elections to the
Panchayats shall be vested in a State Election Commission consisting of State

1.
2.
3.
4.
5.

6.

Election Commissioner to be appointed by the Governor subject to conditions laid

down in the law.
PROVISIONS AND PROCESS OF PANCHAYAT ELECTION
Article 243K provides that superintendence direction and control of the
preparation of electoral rolls for and the conduct of all elections to the Panchayats
shall be vested in a State Election Commission consisting of a State Election
Commissioner to be appointed by the Governor of the State.
The above instructions are subject to the provisions of any law made by the
Legislature of a State, the conditions of service and tenure of office of the state
Election Commissioner shall be such as the Governor may by rule determine.
The state Legislature may subject to the provisions of the Constitution by law
make provision with respect to all matters relating to or in connection with
elections to the Panchayat.
The Governor of State shall when so requested by the Election Commission to
provide staff as may be necessary for the discharge of its functions.
Election in Union Territories: - The President may however by public notification
direct that the provisions of shall apply to any Union territory.
Continuance of existing laws and Panchayats:- All the Panchayats existing
immediately before such government shall continue till the expiration of third
duration unless sooner dissolved by resolution passed by the legislature Assembly
of that State.
Courts not to interfere in electoral matters:-Article 243-O bars the interference
by Courts in electoral matters of panchayats. It provides that anything in this
constitution the validity of any law relating to determination of constituencies or
the allotment of seats to such constituencies made under Article 243K shall not be
called in question in any court.

17. Discuss the various grounds of proclamation of Emergency in India. Also

explain the consequences of such proclamation.
INTRODUCTION: - Proclamation of emergency can be made even before the
actual occurrences of the event contemplated in the constitution have taken place.
One of the chief characteristic of the Indian Constitution is the way in which the
normal federal constitution can be adopted to emergency situation. It is the merit of
the constitution that it visualizes the circumstances when the strict application of
the federal principles might destroy the basic assumptions on which constitution
built.

1.
2.
3.

Types of Emergency:- The constitution of India provides for three types of

emergency:National Emergency: due to war, external aggression or armed rebellion under
Article 352 of the constitution.
State Emergency: due to failure of constitutional machinery in the States under
article 356 of the constitution.
Financial Emergency: provided under article 360 of the constitution.
1. NATIONAL EMERGENCY: - Article 352 provides that if the President is
satisfied that a grave emergency exists whereby the security of India or any part of
India is threatened either by war or external aggression or by armed rebellion he
may make a Proclamation of Emergency in respect of the whole of India or any
part of India as may be specified in the Proclamation.
2. The President shall not issue a Proclamation unless the decision of the Union
cabinet i.e. Council consisting of Prime Minister and other ministers of cabinet
rank to suggest that such proclamation may be issued.
3. This means that the emergency can be declared only on concurrence of the
cabinet and not merely on the advice of the Prime Minister as was done by Mrs
Indira Gandhi in June, 1975.
4. The Proclamation of Emergency must be laid down before each House and it
shall cease to be in operation at the expiration of one month.
5. The Proclamation of Emergency once approved by Parliament shall remain in
force for a period of six months from the date of passing of the resolution.
Grounds:-a. Threatened either by war or external aggression b. armed rebellion.
Effects of Proclamation of Emergency:-1.Extension of Centres Power (353) the
executive power of the Union extends to giving of directions to any State. 2.
Parliament empowered to legislate on the State subjects under art. 353(b):Union
Parliament is empowered to make laws with respect to any of the matters in State
List. 3. Centre empowered to alter distribution of revenue between Union &
State354:Every such order is to be laid before each House of Parliament till cease
of emergency.4.Suspension of Fundamental Rights guaranteed by Art.19: Six
fundamental rights under art.358 shall remain suspended during emergency
period.5.Extension of life of Lok Sabha: during emergency the President may
extend the normal life of Lok Sabha by a year each time.
STATE EMERGENCY:-Art.356says that if the President on receipt of a report
from the Governor of a state or otherwise satisfied that a situation has arisen in
which Govt. of the state cannot be carried on in accordance with the provisions of
constitution, he may issue a Proclamation which results that:1.President may
assume all powers vested in or exercisable by the Governor or to anybody or
authority in the state.2.That the powers of the legislature of the state shall be
exercised by the Parliament. In 1959 President Rule imposed in Kerla in Peculiar

circumstances. In 1967 in Haryana and in 1975 in Nagaland the President Rule was
imposed. In1976 in Gujrat. Nine Assemblies Dissolution in 1977 and similarly in
1980 also and were asked to obtain fresh mandate. President Rule in Goa in 1998
due to defection of 10 MLAs from Congress Party. President Rule in Bihar in
1999, revoked and not approved by Parliament because of two successive
massacres of Dalits. President Rule in Bihar in 2005, as no party had the required
majority of 122MLAs in 243 member Assembly. President Rule in Karnataka2007, in Nagaland in 2008, in Jharkhan in 2009 and in Meghalaya in 2009.
FINANCIAL EMERGENCY:- Article 360 provides that if the President is
satisfied that the situation as arisen whereby the financial stability or credit of India
or part of the territory thereof threatened he may by a Proclamation make a
declaration to that effect. 44th. amendment makes art.360 self-contained; it
provides that the proclamation of financial emergency shall cease to be in
operation at the expiry of two months unless it has been approved by both
Houses of Parliament. Such a proclamation is revoked or varied by the President
by a subsequent proclamation but if the Lok Sabha is dissolved during two months
then it will approve by Rajya Sabha but not by the Lok Sabha the proclamation
shall cease to operate at the expiry of 30 days from the date on which new lok
Sabha sits. During the period of Financial Emergency executive of Union shall
extend to giving direction to any State. Any sch directions may include a provision
for the reduction of salaries of any class of persons serving in State including the
Judges of S.Court and High Courts. All Money or finance bills are to be considered
by President after these are passed by the Legislature of State.
The duration of a proclamation of financial emergency will be in operation for two
months and unless approved by President it shall cease to operate at the expiry of
two months period. Our constitution is unique in respect of speedy re-adjustment
of the peace-time. Constitution which professes to be built upon an edifice of
fundamental rights and democracy.

UNIT V
Doctrine of Pith & Substance
Definition:- Pith and substance of law i.e. the true object of the legislation or a
statute relates to a matter with the competence of legislature which enacted it. It
should be held to be intra-virus even though it incidentally trench on matter not
within the competence of the legislation. In order to ascertain true character of the
legislation one must have regard to the enactment as a whole to its object and to
the scope and effect of its provisions as held in a case of A.S.Krishna v/s State of
Madras-1957.
1. The Privy Council applied the doctrine in Profula Kumar Mukerjee v/s Bank of
Khulna-1947, in this case the validity of the Bengal Money Lenders Act-1946.
The court held that the Bengal Money Lenders act was in, pith and substance a
law in respect of money lending and money lenders a state subject and was valid
even though it trenched incidentally on Promissory Note.
2. In a case of State of Bombay v/s F.N. Balsara-1951, the Bombay Prohibition Act,
which prohibited sale and possession of liquors in the state, was challenged on the
ground that it incidentally encroached upon import and export of liquors across
custom frontier. The court held that the act valid because the pith and substance of
the act fell under the State List not under the Union list even though the Act
incidentally encroached upon the Union Powers of Legislation.
3. A case of Ishwari Khetal Sugar Mills v/s State of U.P.-1980, U.P.Sugar
Undertaking Act-1971 was challenged on the ground that the State Legislature had
no competence to enact the impugned law on the ground that it fell under
Parliament legislative power. The court however rejected these contentions and
held that there was no conflict between that state Act and the Central Act under
Industries Act, 1951, the act being Pith and substance.

i)

Ordinance Making Power

(Under article: 123)
The President can also promulgate ordinances during the recess of the Parliament.
Ordinance is an emergent legislation. If legislation is warranted at a time when the
legislature is not in session, the President on the request of the executive can issue
an ordinance having the force and effect of an Act.

ii)

iii)
iv)
v)
vi)
vii)

However every such ordinance must be laid before both the Houses of Parliament
and shall cease to operate, on the expiry of six weeks from the date of is
reassembly, unless approved by the Parliament. The ordinance also becomes in
operative if before the expiry of six weeks a resolution is passed by Parliament
against it.
The ordinance may be withdrawn by the President at any time. Over and above the
President of India have the powers to constitute the Parliament partially by virtue
of his powers to nominate members to both the Houses of the Parliament.
The ordinance making power of the President is co-extensive with the legislative
power of the Parliament.
The validity of the ordinance making power of the President had been challenged
in a number of cases and the court has upheld is constitutionally in its decisions. In
a case of S.K.Garg v/s Union of India-1981.
Ordinance making power is to enable the executive o deal with the unforeseen or
urgent matters which might well include a situation created by a law being decared
void by a court of Law. In a case
of A.K.Roy v/s Union of India-1982, it was held that the ordinance was valid and
not violative of Art.14

DOCTRINE OF PLEASURE.
INRODUCTION: - According to common law a civil servant holds his office
during the pleasure of Crown. This means his services can be terminated at any
time by the Crown without assigning any reason. Even if there is a contract of
employment between the Crown. 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 services. The doctrine of pleasure is based on the
public policy.
DEFINITION: - Article 310 of the Indian Constitution incorporates the Common
Law doctrine of pleasure. It expressly provides that all person who are members of
the Defence services or Civil Service of Union or members of the State Services
hold office during the pleasure of the President and the Governor respectively. It

pertinent to quote here that the English law has not been fully adopted in this
article.
A civil servant in India could always sue the crown for arrears of salary as has
been done in a case State of Bihar v/s Abdul Majid-1954, the rule is qualified by
the opening words of Art.310 itself places restrictions and limitations on the
exercise of the pleasure and is further limited by Art.311 (2).The services of the
permanent govt. employee cannot be terminated except in accordance with the
rules made under Art. 309 subject to the procedure laid down in art.311 (2) of the
constitution and Fundamental Rights.
The above doctrine of pleasure is invoked by the Government in the
public interest after attaining the age of 50 years by the Govt. servant or has
completed 25 years of service. This is constitutionally permissible as compulsory
termination of service. It does not amount to dismissal or removal by way of
punishment. However the Govt. reserves its right under rule to compulsory retire a
Govt. servant even against his wish.
There is a corresponding right of the Government servant under
financial rules to voluntarily retire from service by giving three months notice.
There is no condition of acceptance of the request for voluntary retirement by the
Govt., when an employee exercises his right under financial rules as held in the
case of Dinesh Chandra v/s State of Assam-1978.
Similarly under article 310 the government has the 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 matter of policy on which the court has not voice as held in the case
of K. Rajendran v/s State of Tamil Nadu-1982.
PARLIAMENTARY PRIVILEGES
The constitutional provisions regarding privileges of the State Legislature and
Parliament are identical. While the article 105 deals with the privileges of
Parliament whereas Act 194 deals with the privileges of State Legislature. There
are two privileges:1.Freedom of Speech :- That there shall be freedom of speech in parliament and
that no member of parliament shall be liable to any proceedings in any court in
respect of anything said or any vote given by him in Parliament or any committee
thereof under the article 105 of the constitution.
This act gives absolute immunity from courts for anything said within
the four walls of the House and if a member repeats or publishes a defamatory

speech made by him within the House, he does so, on his own responsibility and
risk and held for prosecution under Sec.500 IPC.
Art.121 prohibits any discussion in Parliament with respect to the
conduct of a Judge of the Supreme Court or a High Court in discharge of his
duties. Under rule 349 to 356 of Lok Sabha use of unparliamentarily language or
unparliamentarily conduct of a member is prohibited
2. Right of Publication of its Proceedings: - That no Member of Parliament shall
be liable to any proceeding in any court in respect of anything said or any vote
given by him in Parliament or any committee thereof and no person shall be liable
in respect of publication by or under the authority of either on the basis of
provisions laid down in article 105(2). In a case of Surendra v/s Nebakrishna1958, who was an editor of a newspaper, was held guilty of committing contempt
of court for publishing a statement of the House. It was held that there were many
advantages to the public which has the deepest interest in knowing what passes in
Parliament.
The object of the protection is to enable the members to speak their
mind in Parliament freely and fearlessly. The court held that the MPs who had
taken bribe and voted in Parliament against no confidence motion brought against
the Narsimba Rao government are entitled to the protection of Art. 105(2). The
Parliamentary Proceedings Act-1956 was passed which provides that no person
shall be liable to any proceeding civil or criminal in any court in respect of the
publication of the report of the proceedings of either House of Parliament unless it
is proved that publication of such proceeding expressly ordered to be expunged by
the speaker.

WHAT IS POSITION OF PRESIDENT INDIA.

Introduction: - The President of India is the head of state of the Republic of
India. The President is the formal head of the executive, legislature and judiciary of
India and is the commander-in-chief of the Indian Armed Forces. The Indian
President has to appoint the Prime Minister of India. The President also appoints
the Council of Ministers and with the Prime Ministers advice he/she distributes
the portfolios to the Council of Ministers. The President is also accountable to
make a wide range of appointments. The president can assign governors of States,
Attorney General, Chief Justice, Chief Election Commissioner, Ambassadors and
High Commissioners to other countries.The followings are the powers of
President:-

The Executive powers: - Art 53 of the constitution lies down that the executive
power of the union shall be vested in the President.
Legislative powers:- The President of India is an integral part of the Union
Parliament. The Parliament cannot function without involving him. Because he
alone can summon and prorogue the Houses of Parliament.
Military Powers:-i) The constitution vests the Supreme Command of the Defence
Force in the President of India. As such he makes all important appointments in the
Defence Force including the Chief of the three wings the Armed Force, the Air
Force and the Naval Force.
5. Diplomatic Powers:- The President enjoys wide diplomatic powers or powers
over foreign or external affairs.
6. Judicial Powers:- The President of India as head of the executive enjoys some
judicial powers. He can grant pardons, reprieves or respites or remission of
punishment. He can suspend, remit or commute the sentence of any person
convicted of any offence in cases where the punishment is by a court martial or
death sentence.
Financial Powers:- i) With regard to his powers in the field of finance the
constitution provides that all money bills will need his consent. ii) He is
empowered to order for the presentation of the report of the Auditor General of
India relating to the accounts of the Government of India. Sometimes some
awkward situations may demand very tough action or the part of the chief
executive. v) The President of India has been given some extraordinary powers to
deal with such emergent situation.
7. Emergency powers: - i) The makers of the Indian constitution were influenced
by the relevant provisions of the Government India Act, 1935 ii) In the
Constitution
There are 3types of emergencies: National, State & Financial emergencies.

PARDONING POWER OF PRESIDENT OF INDIA

Under Article 72, President of India has power to grant pardons reprieves, respites,
or remission of Punishment or to suspend, remit or commute the sentence of any
person convicted of any offence i.e. By Court Martial or by an offence against any
law relating to a matter to which the executive power of the Union extends or in all
the cases in which the sentence is one of death.

The object of conferring the judicial power on t he President is to

correct possible judicial errors for no human system of judicial administration can
be free from imperfection. A pardon completely absolves the offender from all
sentences and punishments and disqualifications and places him in the same
position as if he had never committed the offence.
Commutation means exchange of one thing for another. Hiere it
means substitution of one form of punishment for another of a lighter character
such as for rigorous imprisonment to simple imprisonment. Remission means
reduction of the amount of sentence without changing its character for example
sentence of one year may be remitted to six months. Respite means awarding a
lesser punishment on some special grounds like the pregnancy of a woman
offender. Reprieve means temporary suspension of death sentence e.g. pending a
proceeding for pardon or commutation.
In the case of Nanawatis -1961, The Supreme Court held that in view of the
language of article 72 and 161 which was similar to that used in sec. 295 of the
Act-1935 therefore the pardoning power can be exercised before, during or after
trial. In Maru ram v/s Union of India-1981, the power to pardon is exercised by
the President on the advice of the Council of Minister.

ADVISORY JURISDICTION OF SUPREME COURT

Article 143 of the constitution 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 and a
question 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 for the
Advisory opinion of the Court and the Court may after such hearing as it thinks fit
report to the President.

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

Under the rule the President refers to the Supreme Court the matters
which are excluded from its jurisdiction under the provision to Art. 131 the court
shall bound to give its opinion.
The Supreme Court of India like the Canadian Supreme Court exercises
the powers to give advisory opinion to the President. The Government of India
Act, 1935 empowered the Governor-General to consult the Court. There are
number of cases which have been sent to the Supreme Court for his advisory
opinion, however some of the important cases are under:Delhi Law Act-1951.
In Re Kerala Education Bill.
In Re Berubari case.
In Re Presidential Bill in 1974
In Re Special Court Bill 1978.
Ayodhya Dispute case.

INDEPENDENCE OF JUDICIARY
Only an impartial and independent judiciary can protect the rights of the individual
and provide equal justice without fear or favour. It is therefore very essential that
the Supreme Court should be allowed to perform its functions in an atmosphere of
independence and be free from all kinds of political pressures. For this issue the
constitution has made the following provisions to ensure independence of
judiciary.
1. Security of Tenure: - The judges of the Supreme Court have security of tenure and
they cannot remove from office except by an order of the President by adopting the
set procedure laid down in the constitution.

2. Salary of Judges fixed not subject to vote of Legislature: - The salary and
allowances of the judges of the Supreme Court are fixed by the constitution and
being paid from Consolidated Fund of India. Salary cannot be altered.
3. Parliament can extend but cannot curtain the jurisdiction and power of the
Supreme Court:- To work more effectively the Parliament may enhance the
jurisdiction of the Supreme Court in civil cases, here the point to be noted that in
all the provisions the Parliament an exceed, but cannot curtail the jurisdiction and
power of the Supreme Court under article 138.
4. No discussion in Legislature on the conduct of Judges:- Neither in Parliament
not in a State Legislature a discussion can take place with respect to the conduct of
a judge of the Supreme Court in discharge of his duties under article121.
5. Power to punish for its contempt:- The supreme Court and the High Court have
the power to punish any person for its contempt under article 129 and 215, this
power is very essential for maintaining the impartiality and independence of the
Judiciary.
6. Separation of judiciary from executive:- States have been directed by the
constitution through article 50 to take steps to separate the judiciary from the
executive in the interest of public service of the State.
7. Judges of the Supreme Court are appointed by the Executive with the
consultation of Legal experts:-Executive cannot appoint the Judges without the
consultation of the Judges of the Supreme Court as provided in Art. 124(2).
8. Prohibition on practice after retirement:- Under article 124(7) of the
constitution a retired Judge of the supreme Court is prohibited to appear and plead
in any court or before any authority within the territory of India.

ROLE OF GOVERNOR OF STATE

The Governor being the executive head, all executive actions are taken in
his name. He is to act on the advice of his Council of Ministers. The Governor is
no doubt vested with considerable powers but as a matter of convention he is not
expected to exercise these powers to the detriment of the State. He is a
constitutional Governor and is therefore the constitutional Head of the State.
Appointment of a Governor: - The Governor of a State is appointed by the
President of India as provided in article 155. He is neither elected by the direct
vote of the people nor by an indirect vote by a specially constituted Electoral
College as in the case with the President. He is a nominee of the Central
Government.

2.
3.
4.
5.

Tenure and Removal of a Governor:- Article 156 of the Constitution says that
the Governor shall hold office during the pleasure of the President subject to this
rule. The tenure of the Governor is fixed for five years from the date on which he
enters upon his office. Governor is to exercise of pleasure of the President. Thus it
lies within the power of the President to terminate in his discretion the term of
Governor.
Role of Governor: -1. Governor appoints Ministers and they hold office during
his pleasure as provided in article 164.
The Governor has a right of opening address, of addressing and sending messages
to and of summoning, proroguing and dissolving the Legislature, just as the
President has under article 174-176.
He has the power to cause the annual financial statement to be laid before the State
Legislature as in article 202 and making demands for grants and recommending
Money Bills as provided in article 207(1).
He has the power of making Ordinances during the recess of the Legislature and
power of vetoing State Bills.
He has the power to reserve the State Bills for the consideration of the President.

How the Impeachment of the President is initiated?

Introduction:- The President of India can be removed from the office for violation
of the constitution by impeachment. Such a motion of impeachment can be
initiated by any House of Parliament In such a case one fourth of the members, of
the house, intending to move such a motion have to serve a fourteen days notice in
writing. After the completion of the stipulated period the motion is discussed and
put to vote.
If two-thirds of the members support the motion that it is passed for consideration
of the other House. The other House on receiving the motion investigates the
changes. The President is allowed the opportunity to present his defence either in
person or through his nominee. If the House despite the defence supports the
motion by two-thirds majority the President stands impeached.

The President of India is entitled to certain legal immunity during his tenure. He is
not answerable to any court of law while discharging his responsibilities. He
cannot be arrested or imprisoned in connection with any civil or criminal case.
However civil suits may be instituted against him by serving at least two months
notice.
Definition of Impeachment:- Impeachment is the first of two stages in a specific
process for a legislative body to remove a Government official without that
official's agreement. The second stage is conviction.
Impeachment is so rare that the term can be misunderstood. A typical
misconception is to confuse it with involuntary removal from office. In fact, it is
only a legal statement of charges, paralleling an indictment in criminal law. An
official who is impeached faces a second legislative vote (whether by the same
body or another), which determines conviction, or failure to convict, on the charges
embodied by the impeachment. Most Constitutions require a supermajority to
convict. The word "impeachment" derives from Latin roots expressing the idea of
becoming caught or entrapped, and has analogues in the modern French verb
empcher (to prevent) and the modern English impede .
The process should not be confused with a recall election. A recall election is
usually initiated by voters and can be based on "political charges", for example
mismanagement, whereas impeachment is initiated by a constitutional body
(usually a legislative body) and is usually based, but not always, on indictable
offences. The process of removing the official is also different.
Impeachment is a British invention. Following the British example, the
Constitutions of Virginia (1776) and Massachusetts (1780) and other States
thereafter adopted the impeachment doctrine. In private organizations, a motion to
impeach can be used to prefer charges.
Procedure for impeachment of the President:- Under Article 61, (1) When a
President is to be impeached for violation of the Constitution, the charge shall be
preferred by either House of Parliament.
(2) No such charge shall be preferred unless(a) the proposal to prefer such charge is contained in a resolution which has been
moved after at least fourteen days' notice in writing, signed by not less than 1/4 th of
the total number of members of the House, has been given of their intention to
move the resolution, and
(b) Such resolution has been passed by a majority of not less than 2/3 rd of the total
membership of the House.
(3) When a charge has been so preferred by either House of Parliament, the other
House shall investigate the charge or cause the charge to be investigated and the
President shall have the right to appear and to be represented at such investigation.

(4) If as a result of the investigation a resolution is passed by a majority of not less

than 2/3rd of the total membership of the House by which the charge was
investigated or caused to be investigated, declaring that the charge preferred
against the President has been sustained, such resolution shall have the effect of
removing the President from his office as from the date on which the resolution is
so passed."
Conclusion:- The word 'Impeachment' is an origin of British convention which
means to remove a Government official without any official agreement and after
the impeachment conviction has been provided to that official. In India, it is a
quasi-judicial procedure and President can only be impeached on the ground of
violation of the Constitution.

1. Qualification and disqualification of the member of Rajya Sabha ?

Introduction:- The Council of States which is also known as Rajya Sabha, a
nomenclature that was announced by the chair in the House on the 23rd August,
1954 has its own distinctive features. The origin of the second Chamber can be
traced to the Montague-Chelmsford Report of 1918. The Government of India Act,
1919 provided for the creation of a Council of State as a second chamber of the
then legislature with a restricted franchise which actually came into existence in
1921. The Governor-General was the ex-officio President of the then Council of
State. The Government of India Act, 1935, hardly made any changes in its
composition.
The Constituent Assembly, which first met on 9 December 1946, also acted as the
Central Legislature till 1950, when it was converted as Provisional Parliament.
During this period, the Central Legislature which was known as Constituent
Assembly (Legislative) and later Provisional Parliament was unicameral till the
first elections were held in 1952.
Extensive debate took place in the Constituent Asse
.mbly regarding the utility or otherwise of a Second Chamber in Independent India
and ultimately, it was decided to have a bicameral legislature for independent India
mainly because a federal system was considered to be most feasible form of
Government for such a vast country with immense diversities. A single directly
elected House, in fact, was considered inadequate to meet the challenges before
free India. A second chamber known as the Council of States, therefore, was
created with altogether different composition and method of election from that of
the directly elected House of the People. It was conceived as another Chamber,
with smaller membership than the Lok Sabha (House of the People). It was meant
to be the federal chamber i.e., a House elected by the elected members of
Assemblies of the States and two Union Territories in which States were not given
equal representation. Apart from the elected members, provision was also made
for the nomination of twelve members to the House by the President. The
minimum age of thirty years was fixed for membership as against twenty-five
years for the Lower House. The element of dignity and prestige was added to the
Council of State House by making the Vice-President of India ex-officio Chairman
of the Rajya Sabha who presides over its sittings.

1.
2.
3.

1.
2.
3.
4.
5.

Qualifications :- Article 84 of the Constitution lays down the qualifications for

membership of Parliament. A person to be qualified for the membership of the
Rajya Sabha should posses the following qualifications:
he must be a citizen of India
he must be not less than 30 years of age;
he must possess such other qualifications as may be prescribed in Parliament.
Disqualifications :- Article 102 of the Constitution lays down that a person shall
be disqualified for being chosen a member of either House of Parliament
if he holds any office of profit under the Government of India or the Government
of any State.
if he is of unsound mind and stands so declared by a competent court;
if he is an undischarged insolvent;
if he is not a citizen of India.
if he is so disqualified by or under any law made by Parliament.
A member nominated to the House by the President, however, is allowed to
join a political party if he/she does so within the first six months of taking seat in
the House.
A member shall not be disqualified on this account, if he voluntarily leaves
the membership of his political party after he is elected Deputy Chairman, Rajya
Sabha.
Process for Election/Nomination
Electoral College: The representatives of the States and of the Union Territories in
the Rajya Sabha are elected by the method of indirect election. The representatives
of each State and two Union territories are elected by the elected members of the
Legislative Assembly of that State and by the members of the Electoral College for
that Union Territory.
Biennial/Bye-election:- Rajya Sabha is a permanent House and is not subject to
dissolution. However, one-third Members of Rajya Sabha retire after every second
year. A member who is elected for a full term for a period of six years. A member
elected in a bye-election remains member for the remaining term of the member
who had resigned or died or disqualified to be member of the House under the
Tenth Schedule.
Conclusion :- Rajya Sabha has played a constructive and effective role in our
politics. Its performance in the legislative field and in influencing the Government
policies has been quite significant. Rajya Sabha has, in fact, worked in a spirit of
cooperation with Lok Sabha as per the Constitutional mandate. Rajya Sabha has
prevented hasty legislation and has served as dignified chamber representing the

federal principle. As a federal chamber, it has worked for the unity and integrity of
the nation and has reinforced the faith of the people in parliamentary democracy.