UNIT-1

Qualification and election of President:-

Introduction- Article 52 of the constitution says that there shall be a president of India and all the
executive power of the Union shall be vested in him and he shall exercise such power either directly or
through or officers subordinate him. Further article 74 of the constitution provides that president shall
act on the aid and advise of council of minister headed by Prime Minister.

Qualification for the election of President:-

Article 58 of the constitution says that no person shall be eligible for the election of President unless
he/she possess following qualifications:-

1. He must be a citizen of India.

2. He must have completed 35 years old.

3. He must be qualified for the election of house of people (Lok Sabha).

4. He must not be holding any office of profit under the central government (Union) or state
government and local government (Authority). However there are certain person who shall not be
deemed to be holding any office of profit-

 President
 Vice President
 Governor
 Minister of the Union
 Minister of the state

Further 50 members of parliament must recommend the name of any person for the election of
President.

Election of President:-

There is no direct election or President by the citizen of India. In India a president is elected indirectly by
the citizens of India.

Who votes in the election of President:-

The president shall be elected by the members of an electoral college:-

1. Elected members of Parliament (Lok sabha & Rajya Sabha).

2. Elected members of legislative assembly of the states.

3. Elected members of Union Territory.

Who do not vote in the election of President:-

1. Nominated members of the parliament

2. Nominated members of the sate legislative and union territory.

3. Members of legislative council.

Manner of election of President:-

The election of President shall be held in accordance with the system of proportional representation by
means of single transferable vote.

Resolution of Dispute regarding the election of President:-

Introduction- Article 71 provides that all the disputes and doubts arising from the election of President
or vice-president shall be inquired and decided by the supreme court of India and the decision of the
apex court shall be final.

If supreme court declare the election if President is void then all the acts and decision taken by the
President shall be deemed valid in law.

Case Law- Dr. N. B. Khare vs Election Commission Of India on 14 October, 1957

The holding of election of President was challenged on the ground that electoral college which elects the
President is not complete due to the reason that general election in some part of Haryana and Punjab
has not yet taken therefore the election of President should be postponed.

The supreme court held that the election of President could only be challenged after the completion of
election and not before that.

11th Constitutional Amendment 1961:-

By the 11th constitutional amendment parliament brought clause four in article 71 which says that the
election of President cannot be challenged on the ground that there is vacancy in the electoral college of
the President.

Case Law- Re: Presidential Poll vs Unknown on 5 June, 1974

The election President was challenged on the ground that electoral college is incomplete because the
Gujarat state legislative assembly was dissolved.

Supreme court held that this is not the ground to challenged the election of President.

Procedure for the impeachment of the President:-

Introduction- Article 61, of the constitution provides the procedure for the impeachment of the
President. The President can be removed from his office on the ground of violation of the constitution.

Who participate in the impeachment of President:-

All the members of the both houses whether elected or nominated shall participate in the impeachment
of President.

Who do not participate in the impeachment of President:-

The members of legislative assembly of state and union territory do not participate in the impeachment
of President. Though they participate in the election of President.

Procedure for the impeachment of President:-

The impeachment proceeding can be initiated in either house of the Parliament. The charge of violation
of constitution should be signed by 1/4 of the house and before moving that resolution (charge) in the
house a prior fourteen days notice must be given to the President.

This resolution has to be passed by that house by the majority of two third of total membership of that
house, if the resolution is passed in one house then it will be send to the other house. The other house
shall investigate and enquire the charges against the President and president shall have right to appear
and make representation in that investigation. If the other house is also satisfied regarding the violation
of constitution by the President then that house also has to pass that resolution by 2/3 majority of total
membership of that house.

The movement the other house passes the resolution the President stands remove from his office from
the date on which resolution is passed.

Powers of President under constitution:-

1. Executive power

2. Financial power

3. Legislative power

4. Diplomatic power

5. Military power

6. Emergency power

7. Judicial power

8. Veto power

9. Ordinance making power

• Executive power-

The following power are the executive power of the President:-

1. All executive access of the government of India are formally taken in the name of President.

2. He appoints the prime minister and other minister of the government

3. He appoints attorney general of the India and also decide his salary etc.

4. He appoints the chief election commissioners and other election commissioners the chairman and
member of UPSC other member of UPSC, the Governor of the state, the chairman and other member of
finance commission.
5. He appoint a commission to investigate into the condition of SC, ST and other backwards classes.

6. He directly administers the Union Territories through administrator appointed by him.

• Financial powers:-

1. He causes to be laid before the parliament the Union budget (Annual Financial Statement).

2. Money bills can be introduced in the parliament only with his prior recommendation.

3. He appoints a finance commission after every five years in order to distribute the revenue between
centre and state.

• Legislative powers:-

1. President addressed the parliament at the beginning of the first session after each general election
and the first session of each year.

2. He can nominate twelve members of the Rajya sabha from the field of literature science art and social
service.

3. He can nominate two members of Lok sabha from Anglo Indian community.

4. He can issue ordinance when the parliament is not in session.

5. He can appoint any member of the Lok sabha to preside over its proceedings when the both speaker
and deputy speaker are not available.

6. He can appoint any member of Rajya sabha to preside over its proceedings when the both chairman
and deputy chairman are not available.

• Diplomatic power:-

1. All the international treaties and agreements are concluded on the behalf of President. However they
are subject to the approval of parliament.

2. He represent India in the other countries through diplomat like ambusher high commissioners etc.

• Military power:-

1. He is the supreme commander of the defence forces of India.

2. He appoints the chief of Army, Navy and Air force.

3. He can declare war or conclude peace subject to the approval of the Parliament.

• Emergency power:-

The President can declare three kinds of emergency

1. National emergency

2. State emergency ( President rule)

3. Financial emergency
• Judicial power:-

1. He appoints the chief justice and the other judges of supreme court and high courts.

2. He can seek advised from the supreme court on any question of law and fact under article 143.
However the advised given by supreme court is not binding on the President.

3. President can grant pardon, commutation, remission, respite and reprieve to any person convicted of
following offence:-

✓ In all cases where the punishment is given by military court.

✓ In cases where the punishment or sentenced is for an offence against a union law

✓ In all cases where the sentence is the sentence of death.

Pardon- In pardon the person gets absolve from all sentences and punishment and it is deemed that he
had never committed this offence.

Commutation- In communication the nature of the punishment is changed and sentence of one nature
get substituted to a lesser sentence from death to life imprisonment from rigorous imprisonment.

Remission- It means reduction of the amount of sentence without changing its nature for ex. From ten
year or 10 years imprisonment to 5 year imprisonment or 10 year rigorous imprisonment to 5 year
rigorous imprisonment.

Respite- It means awarding a lesser punishment on some special ground for ex. Pregnancy of a women
offender.

Reprieve- it means temporary suspension of death sentence for ex. If offender files a mercy petition
before the President.

• Veto power of President:-

Introduction- A bill passed by the Parliament only if it receives the assent of the President. When such a
bill is presented to the President for his assent then he has following three options:-

1. He may give his assent to the bill.

2. He may with hold his assent to the bill.

3. He may return the bill for the reconsideration of the parliament. However if such bill is passed again
by the parliament with or without amendment and again presented to the President then President has
to give the assent to the bill.

Types of Veto-

There are four kinds of Veto:-

1. Absolute veto

2. Qualified Veto
3. Suspensive Veto

4. Pocket Veto

Out of these four Veto President of India has power to issue three Veto’s-

• Absolute

• Suspensive

• Pocket

• Absolute veto- If President withholds his assent to the bill then the bill comes to an end at that time
only.

• Suspensive Veto- When President return the bill for the consideration of the Parliament then this is
called Suspensive veto. If parliament again passes this bill with or without amendment then President
has to give his assent.

• Pocket Veto- In this case President neither ratifies no reject nor return the bill but simply keeps the bill
pending for an indefinite period.

President Veto power over state law:-

A bill passed by a state Legislature can become the law only if the receives the assent of governor or
President.

When a bill is presented to the governor for his assent then he has following four options:-

1. He may give his assent to the bill .

2. He may withhold assents to the bill.

3. He can return the bill for the reconsideration for the state legislature.

However if state legislature again passes such bill with or without amendment and present to the
governor then he has to give his assent to the bill.

4. He may reserve the bill for the consideration of the President. When a bill is reserved by the governor
for the consideration of the President then President has following three options-

1. He may give his assent to the bill .

2. He may withhold assents to the bill.

3. He can return the bill for the reconsideration for the state legislature.

If the bill is agained passed by state legislature with or without amendment and presented again to the
President for his assent. The President is not bound to give his assent to the bill.

Ordinance Making Power of the President:--

Introduction- Article 123 of the constitution empowers the President to promulgate ordinance during
the recess the ordinance the object of this ordinance is to deal with any urgent matter on which law has
to be passed immediately.

Essentials conditions of promulgating and ordinance:-

1. Ordinance can only be issued when both houses of the parliament is not in the session.

2. If any ordinance is passed when both houses are in session then such ordinance shall be void.

3. Ordinance can only be issues on those matters on which parliament can make law.

4. An ordinance has to be passed by the parliament within six weeks from the date of its reassembly.

5. The maximum life of an ordinance can be six months and six weeks.

6. Any act done under the ordinance shall be valid even if ordinance lapse later on.

How an ordinance comes to an end:-

1. The President can revokes it any time after passing it.

2. If parliament disapproves it within six weeks.

3. If parliament does nothing about it for six weeks.

Case Law- Rustom Cavasjee(RC) Cooper v. Union Of India 1970:-

1. President passes the ordinance on the advice of council of minister headed by prime minister
therefore it cannot be said unconstitutional or undemocratic.

2. The ordinance can be challenged in the supreme court on the ground that President passed the
ordinance with malafide therefore judicial review can be done.

Constitutional position of President:-

Introduction- The position of President under Indian Constitution is not same s the position of President
of USA . President of USA is the real executive head of the state but in India President is only nominal
executive head of the state . The real executive powers in India has in the hands of council of ministers
headed by prime minister.

According to Dr. Bhim Rao Ambedkar-

The position of Indian President is same as of the king of United Kingdom (UK) . He is the head of the
state but not the head of Government. He represent the nation but doesn’t rule the nation he is the
symbol of the nation.

Position of President before 42nd Amendment 1976-

As per article 53 the executive powers of the union shall be exercised by President of India and he shall
act either directly or through officer subordinate to him. Further article 74 says that there shall be
council of ministers headed by Prime minister to aid and advised the President and President may act on
the advice of council of minister.
Before 42nd amendment act the President head the option either to act or not on the advice of council
of minister headed by Prime minister.

After 42nd Amendment act-

An amendment had been done under article 47 and the word “may” had been replaced by the word
“shall” . It means the discretionary power of the President had been done away by the Parliament. Now
the President has to act on the advised of council of minister headed by Prime minister.

Position after 44th Amendment 1978-

After 44th amendment a provision is added under article 74 which says that the President may require
the council of minister to reconsider their advice. If council of minister after reconsideration council of
minister gives some or other advise then the President has to act.

The Governor-
Introduction- Governor is the chief executive head of the state . He exercise all the executive power of
the state either directly or through officer subordinate to him.

Power of Governor:-

1) Executive power

2) Legislative power

3) Financial power

4) Judicial power

• Executive power-

1. All executive actions of the state government are formally taken in him name.

2. He appoints the chief minister and other minister in the state.

3. He appoints advocate general in the state.

4. He appoints the state election commissioner, chairman and other member of state public service
commission.

5. Governors appoint a tribal welfare in the states of Chhattisgarh, Jharkhand Madhya Pradesh and
Odisha.

6. He can recommend the imposition of president rule in the state.

7. He acts has the chancellor of the universities in the state. He also appoints the VC’s ( Vice chancellor)
in universities in the state.

Legislative powers of the governor:-

1. He can addressed the state legislature and the beginning of the first session after each general
election and the first session of each year.
2. He can appoints any member of the state legislative assembly to preside over which proceedings
when the both speaker and deputy speaker are not available.

3. He nominates one sixth of the members of state legislative council from the persons who are having
experience in the field of literature, science, art, social service and co-operative movements.

4. He can nominate one member to the state legislative assembly from the Anglo-Indian community.

5. He can promulgate ordinance when the state legislature is not in session.

Financial powers of the governor:-

1. He sees that the state budget is laid before the state assembly.

2. Money bill can be introduced in the state legislature only with the prior recommendations of the
governor.

3. He constitute a finance commission after every five years to review the financial position of the
panchayat and municipalities.

Judicial powers of the governor:-

1. He is consulted by the President while appointing the judges in the state high court.

2. He makes appointment, posting and promotion of the district judges in the consultation with the
state high court.

3. He appoints judicial officers other than district judges in consultation with the state high court and
state public service commission.

4. He can grant pardon, commutation, remission, reprieve, respite to any person convicted of any
offence under the state law.

Difference between the pardoning power of the President and governor:-

President-

1. President can pardon, commutation, remission, reprieve, respite if any persons if he is convicted
under any central law.

2. President can pardon, commutation, remission, reprieve, respite the death sentence. He is the only
authority to pardon a death sentence.

3. President can pardon, commutation, remission, reprieve, respite any person is convicted by the
military court.

Governor-

1. If any person is convicted under the state law.

2. He cannot pardon the death sentence but though he can commutation, remission, reprieve, respite.

3. Governor has no such authority.

Constitutional position of the governor:-

1. Article 154 of the constitution provides that all the executive powers of the state shall be
exercised by the governor either directly or through officers subordinate to him. Further article
163 provides that there shall be a council of minister with the chief minister as the head to aid
and advised the governor in the exercise of his functions Except in the matter where governor
can use his discretionary power. Governor of the state may refuse to act on the aid and advised
of the council of minister headed by chief minister.
Case law- B.P singhal vs. Union of India 2010 (SC)
Constitutional bench of the supreme court head that governor can challenge his removal if he
can saw that his removal his done arbitrary and unreasonably by the President. Therefore
supreme court can do the judicial review if the removal order of the governor is not Bonafide.

Governor do not have any constitutional discretion by he have some situational discretion
where he can act even without the aid and advice of council of minister-
1. Governor can use his discretion in the appointment of chief minister when no party has a
clear cut majority in the state assembly.
2. Governor can dissolved the state assembly if the no confidence motion has been passed
against the council of minister.

UNIT-2
Composition of parliament and the qualifications of its
members:-
Introduction- The Parliament of India consists of three part that is the President the council of
states and house of the people. In 1954 the Hindi names Rajya sabha and Lok sabha were given
to council of states and house of people respectively.
Composition of the two houses-
Composition of the Rajya Sabha-
The Rajya Sabha is also known as upper house, house of elders, council of state and second
chamber.
The maximum strength of the Rajya Sabha is fixed at 250. Out of these 250 members 238
members are to be elected from the states and union territory and the rest 12 members are to
be nominated by the President of India.
At present the Rajya Sabha has 245 members out of these 245 members 225 represent states 8
represent the Union Territory and 12 are nominated by the President of India.
Composition of the Lok Sabha:-
The Lok sabha is also known as the lower house, the house of the people, popular house and
first chamber of the Parliament.
The maximum strength of the Lok sabha is fixed at 552 members out of these 552 members, 530
members represents the state and 20 members represents the Union Territory and 2 members
are to be nominated by the President from Anglo India community.
At present Lok Sabha has 545 members out of these 545 members 524 represents states and 19
represents the Union Territory and 2 from Anglo-Indian community.
Note- 104 constitutional Amendment act 2020 has done away the concept of reservation
(Nomination) for Anglo-Indians under article 334 of the Indian Constitution.
Qualification to be a member of Parliament:-
The following qualifications are essential to become the member of Parliament:-
1. He must be a citizen of India.
2. He must not be less than 30 years of age in case of Rajya Sabha and not less than 25 years of
age in case of Lok Sabha.
3. He must take the oath before entering into the office.
4. He must possess other such qualifications prescribed by the parliament.
Qualifications under representation of people act 1951:-
1. He must be a registered voter in any parliamentary constituency.
2. He must be a member of SC/ST in any state or union territory if he wants to contest a
reserved seat.

Disqualification of a member of Parliament:-

Under the constitution the following disqualification of a member of Parliament are mentioned:-
1. If he is declared a person of unsound mind by the court.
2. If he holds any office of profits under the union or state government. However the parliament
may exempt any office to be treated as a office of profit.
3. If he is not a citizen of India or has voluntarily acquired the citizenship of any other foreign
country.
4. If he is disqualified under any other law made by parliament.
Disqualification under representation of people act 1951:-
1. If he has been convicted for any offence which is punishable for two or more years.
2. If he has been found guilty of certain election offences or corrupt practices in the election.
3. He must not have failed to give account of his election expenses within the time.
4. He must not be a director or managing agent in any corporation in which government has
25% share.
5. He must not have been dismissed from the government service for corruption or disloyalty to
the state.
6. He must not have been convicted for promoting enmity between different groups etc.
7. He must not have been punished for practicing any social crime such as untouchability, dowry
and sati.
The question of disqualification is decided by the President in consultation with the election
commission. The President shall act according to the opinion of the election commissioner.

Disqualifications on the ground of defection:-

The constitution provides that a person shall be disqualified from the membership of parliament
if he is disqualified on the ground of anti- defection law under 10th schedule of the constitution.
A member will be disqualified from his membership on the following grounds-
• If he voluntarily give up the membership of political party on whose ticket he is elected to the
house. • If he votes or abstain from the voting in the house against the direction given by his
political party. Unless his act is condoned within 15 days from the date of voting.
• If any independently elected member joins any political party.
• If any nominated members joins any political party after the expiry of six months.
The question of Disqualification under the 10th schedule is decided by the chairman in case of
Rajya Sabha and by the speaker in case of Lok Sabha.

Procedure for passing of bills:-

Introduction- The primary object of the parliament is to make law. Therefore parliament has to
pass the bills in both houses in order to make that bill a law. There can be two kinds of bills one
is public bill and second is private bill. A public bill is always bring by the minister, whereas a
private bill are tabled by the private members of the Parliament who are not part of the
government.

Classification of the bills:-

There are four kinds of bill which can be introduced in the parliament-
1. Ordinary bill
2. Money bill
3. Financial bill
4. Constitutional amendment bill

• Procedure of passing the ordinary bill in the Parliament- Every ordinary bill has to pass
through the following five stages in the Parliament before it can become a law:-
1. First reading- An ordinary bill can be introduced in any house of the Parliament. Such a bill
may be introduced either by a minister or by a private member of a house the member who
wants to introduce a bill has to ask for the leave of the house after the permission the mover of
a bill tables it by reading the title and object of the bill. At this stage no discussion on the bill can
take place. Later on this bill is published in the Gazette of India.
2. Second reading- This is most important stage of the bill because at this stage the detailed
discussion is done by the members of the house at this stage bill may be sent to the select
committee or joint committee or scrutiny and the committee can bring the appropriate
amendment in the bill. After the scrutiny of the bills goes to the house for general discussion.
Where member of the house discuss each provision of the bill in detailed and also recommend
the amendment in the bill.
3. Third reading- At this stage the debate is confined to the acceptance or rejection of the bill
and no amendment are allowed in the bill. If the majority of the members worse in favour of the
bill then bill is deemed to be the house and it goes to the other house.

Bill in the second house:-

In the second house also bill passes through the all three stages ( 1,2&3 reading). Second house
has following four alternatives:-
1. It may pass the bill as sent by the first house( without amendment)
2. It may pass the bill with amendments and return it to the first house for reconsideration.
3. It may reject the bill all together.
4. It may not take any action and keep the bill pending
If the second house passes the bill without any amendments or the first house except the
amendment suggested by the second house then the bill is deemed to have been passed by the
both houses and it is sent to the President for his assent.
Concept of joint sitting of both houses( Article 108):-
If the first house rejects the amendment suggested by the second house or the second house
rejects the bill all together or the second house doesn’t take any action for six months then a
deadlock is deemed to have taken place and resolve such a deadlock president can call a joint
sitting of both houses which shall be presided over by the Speaker of Lok Sabha. If majority of
the members of both houses in joint sitting approves the bill then bill is deemed to have been
passed by the both houses and it will be sent to the President for his assent.

Assent of the President:-

Every bill after being passed by both houses of parliament is to be presented to the President for
his assent. The President has following three alternatives in such case:-
1. He may give his assent to the bill.
2. He may withhold his assent.
3. He may return the bill for reconsideration of the Parliament.

MONEY BILL:-
Article 110 of the constitution deals with the definition of money bills it provides certain matters
on which if bill is stabled in the house then it will be called as money bill :-
1. Bill regarding imposition , abolition, remission, alternation, regulations of any tax.
2. The regulation of the borrowing of money by the union government.
3. The custody of the consolidated fund of India or the contingency fund of India , the payment
of money into or the withdrawal of money from any such fund.
4. Any appropriation of money out of consolidated fund of India.
5. Declaration of any expenditure charged on the consolidated fund of India or increasing the
amount of any such expenditure.
6. Any other matter which is incidental to the above mentioned list.
However, a bill is not deemed to be a money bill by reason only that it deals with following
matters:-
• The imposition of fines or other pecuniary penalties.
•The demand or payment of fees for licences.
• The imposition , abolition, remission, alternation, regulations of any tax. by any local
Authority.

Essential of a Money bill:-

1. If any question arises whether a bill is Money or not it shall be decided by the speaker of Lok
Sabha and his decision shall be final.
2. Speaker shall indorse on the bill that it is a money bill.
3. A money bill can only be introduced in the Lok Sabha and that to on the recommendation of
President.
4. Money bill can only be introduced by a minister and not by any private member of the house.

Procedure for passing the money bill:-

1. Rajya Sabha has very less power with regard to money bill. Because it cannot reject or amend
a money bill. It can only make the recommendation.
2. Lok Sabha is not bound by the recommendation of the Rajya Sabha. Lok Sabha can either
accept or reject all any recommendations of the Rajya Sabha.
3. Rajya Sabha has to return the bill to the Lok Sabha within 14 days with or without
amendment.
4. If the Lok sabha accept the recommendation of Rajya Sabha then bill is deemed to have been
passed by both houses.
5. If Lok Sabha doesn’t accept any recommendations then also bill is deemed to have been
passed by both houses.
6. If Rajya sabha doesn’t return the bill to the Lok sabha within 14 days then also it is deemed
that the bill has been passed by the both houses.
7. When a bill is presented to the President then he may either give his assent or withhold his
assent but he cannot return the bill for the recommendation of the house.

Difference between ordinary bill and money bill:-

• Ordinary bill-
1. It can be tabled either in Lok Sabha or Rajya Sabha.
2. It can be introduced either by a minister or private member.
3. It is introduced without the recommendation of the President.
4. It can be amended or rejected by the Rajya Sabha.
5. It can be detained By the Rajya Sabha for maximum periods of six months.
6. It doesn’t require the certification of the speaker when transmitted to the Rajya Sabha.
7. There is concept of joint sitting in case of deadlock between both houses.
8. It can be rejected, approved or returned for reconsideration by the President.

• Money bill-
1. It can only be tabled in Lok Sabha.
2. It can only introduced by a minister.
3. It can only be introduced on the recommendation of President.
4. It cannot be amended or rejected by the Rajya sabha. The Rajya Sabha can only give
recommendation to the Lok Sabha.
5. It can detained by the Rajya Sabha for a maximum periods of fourteen days.
6. It requires the certification of the speaker when transmitted to the Rajya Sabha.
7. There cannot any question of joint sitting.
8. It can only be rejected or approved but cannot be returned for reconsideration by the
President.

Financial bill:-
Financial bills are those bills that deal with fiscal matter that is revenue or expenditure etc. All
the money bills are also financial bill but all financial bills are not money bill. Only those financial
bills are money bills which are expressly mentioned under Article 110 of the constitution.

Procedure of passing the financial bill-

A financial bills is similar to the money bills into aspects-

A) Both money bill and financial bill can only be introduced in Lok Sabha not in Rajya Sabha.
B) Both of them can only be introduced on the recommendation of the President.
Apart from above mentioned two features the procedure of passing the financial bill is similar to
the ordinary bill. Therefore it can either be rejected or amended by the Rajya Sabha and in case
of disagreement between both houses can the President can call the joint sitting of both houses
to resolve the deadlock.

When the bill is passed by the both houses then it will be presented to the President and he has
following three alternatives-
1. He give Assent to the bill.
2. He may withhold his assent.
3. He may return the bill for the reconsideration of the house.

Principal of collective responsibility:-

Introduction- Article 74 of the constitution provides that there shall be a council of ministers
headed by Prime Minister to aid and advised the President of India and President shall act on
the advise of council of ministers. Further court cannot inquire that what advice is given by
council of ministers to the President. This article shows that the real executive power in India is
in the hand of council of ministers and not in the hand of President.
Further article 75(3) provides that the council of ministers shall be collectively responsible to the
Lok Sabha.

Concept of collective responsibility:-

The principal of collective responsibility means that all the ministers shall accept the policy of
the government which has been decided in the cabinet meeting (council of ministers meeting).
If any minster doesn’t agree with the policy of the government then he has no other option
except to resign from the ministry because in the parliamentary form of government all the
ministers work as a team and they swim or sink together. When the Lok Sabha passes a no
confidence motion against the council of ministers then all the ministers has to resign.
Apart from collective responsibility of ministers each minister also has individual responsibilities
to tell the house about the work done by his ministry. If the work of any minister is not up to any
standard then either he has to resign or he shall be dismissed by the Prime Minister. Further
Prime Minister can also ask the resignation of any minister who doesn’t agree with the policy of
the government in case if such minister doesn’t resign then Prime Minister can ask the President
to dismiss such minister from the ministry.

Parliamentary privileges:-
Introduction- Parliamentary privileges are special rights , immunities and exemption enjoyed by
the two houses of the Parliament and there members. These privileges are necessary in order to
make sure members of parliament do there tasks without any fear. Without these privileges a
house cannot protect its dignity and honour.

The Constitutional also gives these parliamentary privileges to those persons who are entitle to
speak and take part in the proceeding of the house for example Attorney general of India.
It must be noted that President doesn’t enjoy these parliamentary privileges even though he his
essential part of the Parliament.

Kinds of parliamentary privileges-

1. Collective privileges of the house
2. Individual privileges of its member
The following privileges belong to each house of the Parliament collectively-
1. Each house has the right to publish its record , debates and proceedings and also the right to
prohibit others for publishing same. However after 44th amendment act PRESS has right to
publish the true report of the parliamentary proceeding without any prior permission of the
house
2. Any house can call the secret sitting of the house prohibit the outsiders and media to publish
its report.
3. Each house can make rules to regulate its own procedure for the smooth functioning of the
house.
4. It has right to receive immediate information of the arrest, detention, conviction,
imprisonment and release of a member.
5. The courts are prohibited to enquire into the proceedings of the house or its committee.
6. No person either a member or outsider can be arrested within the premises of the houses
without the prior permission of the presiding officer.
7. No legal process either in civil or criminal matter can be served to any person within the
premises of the house without the prior permission of the presiding officer.

Individual privileges of the member of parliament-

1. No member can be arrested during the session of parliament and forty days before the
beginning and forty day after the end of a session. This privilege is available only in civil matters
and not in criminal matters.
2. Every member has freedom of speech in Parliament and no member is liable to any
proceeding in any court for anything said or any vote given by him in the Parliament. This
Freedom is subject to the provision of the constitution rules made by the Parliament.
3. Member can refuse to give evidence and appear as a witness in a case pending in a court
when Parliament is in session.

Source of this privileges-

The sources of Parliamentary privileges are followings-
1. Constitutional provisions (article 105)
2. Various laws made by the Parliament.
 3. Rules of both of the houses.
4. Parliamentary convention
5. Judicial interpretation

UNIT-3
Appointment of chief justice and other judges of supreme court:-
Introduction- The Supreme court of India is the final authority to interpret the constitution and safeguard
the fundamental rights of citizens. Therefore the question of appointment of judges in Supreme court
becomes important.

Appointment of judges:-

Article 124(2) of constitution says that every judge of supreme court shall be appointed by the President
after consultation with such other judges of supreme court and high court as the President may deem fit.
In case of appointment of judge other than CJI ( chief justice of India) President must consult the chief
justice of India.

Case law- S.P. Gupta vs President Of India And Ors. on 30 December, 1981

7 judges bench of supreme court by 4:3 majority held that President of India is not by the opinion of chief
justice of India. He is only bound to consult the CJI therefore the executive has the final say in the
appointment of judges in higher judiciary.

2 nd judges Case- Supreme Court Advocates on Record Association v. Union of India AIR 1994 SC 268

9 judges bench

The 9 judges bench of Supreme court by 7:2 majority held overruled the judgement of S.P GUPTA and
held that President is bound by the opinion of CJI and CJI will give his opinion after consulting to senior
most judges of the supreme court. Therefore recommendations made by the chief justice of India
regarding appointment of judges in supreme court shall be binding on the President.

3 rd judges case- Re-presidential reference case 1999

In this case supreme court held that chief justice of India will give his recommendation to the President
after consulting four other senior most judges of the supreme court. This group of five judges known as
collegium system.

99th constitutional amendment act 2014:-

By this amendment collegium system was replaced by NJAC ( NATIONAL JUDICIAL APPOINTMENT
COMMISSION). After this amendment President was supposed to appoint the judges on the
recommendation of NJAC.

Composition of NJAC-

This commission shall consists of six member:-

1. Chief justice of India ( Ex-officio chair person)

2. Two other senior judges of supreme court

3. Union law minister

4. Two eminent persons to be appointed by a committee consists of CJI, PM and leader of opposition in
Lok Sabha

This amendment was challenged in the case of supreme court advocate on record association versus
union of INDIA 2015 (SC). The five judges bench by the majority of 4:1 declared the 99th constitutional
amendment act unconstitutional as it would affect the independence of the judiciary. Therefore supreme
court restored back the collegium system senior most 5 judges.

Appointment of chief justice of India:-

When the constitution of India came into force then it was the practice to appoint the senior most judge
of the supreme court as CJI and this practice was followed till 1973 . In 1973 supreme court passed the
landmark judgement of keshvanand bharti versus union of India in which it was held that Parliament
cannot change the basic structure of the constitution the three senior most judges who gave the majority
judgement were superseded by the government and the 4th judge is seniority that is justice A.N Ray was
appointed as CJI and the three superseded judges J. Hegde J. Shelat J. grover resigned immediately.
Again in 1978/79 Justice H.R khanna was superseded because of his judgement in ADM Jabalpur case
and Justin M.H beg was appointed as CJI. After these two instances the practice is that only the senior
most judge of the supreme court shall be appointed as CJI.

Jurisdiction of the supreme court:-

Introduction- Since supreme court is the final interpret and guardian of the constitution and it also
protects the fundamental rights of the citizens, therefore the constitution has given a very vast and
extensive jurisdiction to the supreme court.

Classification of jurisdiction of Supreme court:-

1. Original jurisdiction
2. Writ jurisdiction
3. Appellate jurisdiction
4. Advisory jurisdiction
5. Power of judicial review
6. Power as a court of record

 Original jurisdiction (Article 131) – This article conferred exclusive original jurisdiction on the
supreme court. Exclusive means no other court can decide such matter and original means the
power to hear such matter in the first instance and not by way of appeal.
In the following disputes supreme court has exclusive original jurisdiction-
1. Dispute between Central and one or most states.
 2. Dispute between the Centre and any state or states on one side and one or most states
on the other side.
3. Dispute between two or more states.

Exception of Article 131-

1. The Dispute Arising out of a any pre constitution , treaty, agreement, covenant or any other
similar instrument which expressly provides that such disputes shall not be decided by the
judiciary.
2. Inter-state water disputes the parliament has enacted The inter-state water dispute act ,
1956(article 262) which excludes the original jurisdiction of Supreme court in dispute between
states regarding the use, distribution or control of the water of the rivers.

 Writ jurisdiction- Supreme court is the main defender of the fundamental rights of the citizens
therefore it is empowered to issues different writs or the enforcement of fundamental rights of
citizens. In this matter supreme court has original jurisdiction but not exclusive jurisdiction
because High courts also have been given the power to enforce the fundamental rights of
citizens.
Therefore supreme court has jurisdiction to issue any writ under article 32 of the constitution to
protect the fundamental rights of the citizens.
5 writs-
- Habeas corpus
- Mandamus
- Prohibition
- Certiorari
- Quo-warranto

Appellate jurisdiction of Supreme court:-

Since supreme court is the final appellate authorities in the country therefore it has very vast power and
jurisdiction to hear appeals. It also hears all those appeals which use to lie in privy council before 1950.
The appellate jurisdiction of the supreme court can be classified into 4 heads:-

a) Appeal in constitutional matter (article 132)

b) Appeal in civil matters (article 133)
c) Appeal in criminal matters (article134)
d) Appeal by special leave petition (article 136)

 Appeal in Constitutional matters- In any case before the high court if a question of law
arise relating to the interpretation of the constitution then high court can issue a
certificate to the party to appeal in the supreme court on the ground that the question
has been wrongly decided.

 Appeal in civil matters- In civil cases an appeal lies to the supreme court from any
judgement of a high court if high court certifies-
 1. Certifies that the case involves a substantial question of law
2. That question need to be decided by the supreme court.

Originally when the constitution came into force only those civil cases that involved a
sum of 20,000 rupees could be appealed before the supreme court but this pecuniary
limit was removed by 38th constitutional amendment act 1972.

 Appeal in criminal matters:- The supreme court hear the appeal against the judgement of High
court in criminal matters if High court-
1. If high court has on appeal reversed the order of acquittal of a accused and sentenced him to
death.
2. High court has taken before itself any case from any subordinate court and convicted the
accused with capital punishment (death punishment).
The parliament in 1970 had enlarged the criminal appellate jurisdiction of the
supreme court according to which an appeal shall lie to the supreme court if high
court.
3. If high court has on appeal reversed the order of acquittal of a accused and
sentenced him to 10 years or life imprisonment.
4. High court has taken before itself any case from any subordinate court and convicted
the accused with 10 years or life imprisonment.

In this four matters accuses person has right to approach supreme court in appeal even
without a certificate from the High court.

∆ Requirement of certificate – Apart from above mentioned four matters accuses person has to seek
certificate from the High court under article 134A in order to appeal to the supreme court.

 Appeal by special leave petition Article 136:-

The supreme court is authorised to grant in its discretion the special leave to appeal from any
judgement in any matter passed by any court or tribunal in the country except the military court.
Essential aspect of this SLP (special leave petition):-
1. It is a discretionary power therefore it cannot be claimed as a matter of right.
2. It can be granted in any judgement or order whether final or interlocutory.
3. It may be related to any matter i.e. constitutional, civil, criminal, income tax, labour,
revenue, administrative etc.
4. It can be granted against any court or tribunal and not necessary against a High court
except a military court.

Advisory jurisdiction of the supreme court article 143:-

Article 143 empowers the President to seek the opinion of supreme court in the following two matters:-

1. On any questions of law or fact of public importance which has arisen or which is likely to arise.
2. On any dispute arising out of any pre constitutional treaty, agreement etc.

In the first matter supreme court has discretionary power either to give or refuse its opinion to the
President. But in the second matter supreme court must give its opinion to the President.
 In both the matters the opinion expressed by the supreme court is only advisory and not a judicial
pronouncement therefore it is not binding on the President.

Power of judicial review:-

Judicial review is the power of the supreme court to examine the constitutional validity of any law
and executive order of both central and state government.

If court finds that a particular law or executive order is as per the constitution provisions then
Supreme can declare it illegal and void.

Power of supreme court as a court of record:-

As a court of record the supreme has two powers :-

1. The judgment orders of supreme court are recorded as legal precedent. The judgement of
supreme court can be referred in any sub-ordinate court and such sub-ordinate court shall be
bound by the judgement of supreme court.
2. Supreme has power to punish for contempt of court either with simple imprisonment for a term
up to six months or fine up to 2000/- rupees or both.
Supreme court in the case of-
Delhi judicial service association vs. State of Gujarat 1991
Held that supreme court has power to punish not only its own contempt but also the contempt of
any sub-ordinate court through out the territory of India.

Appointment and transfers of judges of High court:-

Introduction- The constitution provides the single integrated judicial system in India . In which high
courts operates below the supreme court but above the sub-ordinates courts.

At present there are 24 high courts in the country out of them 4 are common high courts.

Organisation of high courts:-

Every high court consists of a Chief justice and such other judges as the President may from time to time
think necessary to appoint.

Appointment of judges Article 217:-

As per article 217 the judges of a high court are appointed by the President. The chief justice of High
court is appointed by President after consultation with chief justice of India and the governor of the state
concerned and for the appointment of other judges the chief justice of the concerned high court is also
consulted.

In case of a common high court for two or more states the governor of all concerned states are also
consulted by the President.

Supreme court held in regard to the appointment of the judges of High court collegium cells consists of
chief justice of India and two other senior most judges of the supreme court.
Transfer of High court judges Article 222:-

According to article 222 the President can transfer a judge from one High court to another after
consulting the chief justice of India. On transfer such high court judge is entitled to receive in addition to
his salary such compensatory allowances as may be decided by Parliament.

Case law- union of India versus sankal chand himatlal sheth 1977

In this case supreme court held president is not bound to take the prior consent of the concerned judge
who is to be transferred. Further supreme court ruled that transfer of high court judge can only be made
in public interest and not by way of punishment.

Case law- S.P gupta versus union of India 1982

In this case court held that President has to make effective consultation with the chief justice of India
before transferring any judge of the high court.

Case law- Supreme court advocate on records versus union of India 1993

In the case of transfer of judges of high the opinion of the chief justice of India shall prevail over the
opinion of President. Further chief justice of India is required to consult the to senior most judges of the
supreme court before sending his recommendation for the transfer of a high court judge to the President.

Case law- Re-presidential reference case 1999

9 judge bench of Supreme court held that in case of Transfer of high court judge the CJI must consult 4
senior most judges of the supreme court and in addition to those judges the chief justice of 2 high courts
( One from which the judge is transferred and the other receiving him).

NJAC( National judicial appointment commission) 99th amendment

Jurisdiction of High court:-

Introduction- High court is the highest court of appeal in any state it is also the protector of the
fundamental rights of the citizens and it also has the power to interpret the constitution.

At present a high court has the following jurisdiction and powers:-

1. Original jurisdiction
2. Writ jurisdiction
3. Appellate jurisdiction
4. Supervisory jurisdiction
5. Control over sub-ordinate courts
6. Power as a court of record
7. Power of judicial review

Source of power and jurisdiction of High court:-

1. Constitution of India
2. Act of parliament

3. Act of state legislature

4. Criminal procedure code 1973

5. Civil procedure code 1908

Original jurisdiction :- It means the power of a High court to hear disputes in the first instance and not by
way of appeal. The high courts have original jurisdiction in the following matters:-

1. Matters of will, marriage, divorce, company law and contempt of court.

2. Dispute relating to the election of members of parliament and state legislature.
3. Dispute regarding revenue matters
4. enforcement of fundamental rights of citizens.

5. Cases ordered to be transferred from a subordinate court involving the interpretation of

constitution

Writ jurisdiction Article 226:-

Article 226 of the constitution empowers the High court to issue writs for the enforcement of
fundamental rights or any other legal right. The writ jurisdiction of the high court is wider then the
writ jurisdiction of the supreme court because supreme court can only the writ for the enforcement
of fundamental rights whereas high court can issue the writs for the enforcement of fundamental
rights or any other legal rights. There is one more difference between the writ jurisdiction of high
court and supreme courts that is Citizens right to go supreme court under article 32 is itself a
fundamental right but right to approach the high court under article 226 is not a fundamental right
in itself.

Appellate jurisdiction:-

A high court is primarily is a court of appeal it hears appeals against the judgements of subordinate
courts in is territorial jurisdiction. It has appellate jurisdiction in both civil and criminal matters.

Appeal in civil matters-

1. First appeal lies from the orders and judgement of the court and additional district court to the
high court on the question of law and fact.
2. Second appeal lies from the order and judgement of any district court or others subordinate
courts to the high court only on the question of law (section 100 cpc).
3. Appeal from the decision of the administrative or other tribunal lies to the high court.

Appeal in criminal matter:-

1. Appeals from the judgement of session court and additional session court lies to the high court.
2. Appeal from the judgements of others subordinate courts lies to the high court only if sentence is
of the imprisonment is of more than 7 years ( section 374 crpc).

Supervisory jurisdiction of the High court:-

A high court has the power of superintendent over all force and tribunals functioning in its territorial
jurisdiction except military court.

High court has following supervisory powers:-

1. High courts makes general rule and prescribed forms for regulating the practice and proceeding.
2. High court prescribes forms in which book , entries and account are to be kept by subordinate
courts.
3. High court decide the fees table to the clerks officers of subordinate courts.

Control over subordinate courts:-

In addition to appellate and supervisory jurisdiction over the subordinate courts the high court
has also administrative control over the subordinate courts. They are discussed below:-
1. High court is consulted by the governor in the matter of appointment, posting and
promotions of district judges.
2. High courts deals with the matter of posting, promotion , Transfer and discipline of the
members of judicial service in the state other than district judges.

High court as a court of record Article 215:-

Same as supreme court........

Power of judicial review:-

High court has power of judicial review to check the constitutionality of any law made by the central
government or state government. If high courts finds that the law made by the centre or state
government is against the constitution then it can declare such law as null and void.

Parliament by 42nd amendment act 1976 curtailed the judicial review power of the high court that it
cannot do the judicial review of the central law however the very next amendment i.e. 43rd amendment
act restored the power of judicial review of high court.

Independence of the judiciary:-

Conduct of judges cannot be discussed (Article 121)
The constitution prohibits any discussion in the parliament or in state legislatures regarding the
conduct of judges of supreme court or high court in the discharge of their duties . Except when
an impeachment motion is under consideration of the parliament.

Ban on practice after retirement-

Article 127(7) of the constitution says that the retired judges of supreme court are prohibited
from practicing in any court within the territory of India.
Further article 220 of the constitution says that the retired judges of the high court are also
prohibited from practicing in the high court where they acted as a judge or in front of any
subordinate court. However they can practice in other High courts or supreme court.
 Power to punish or its contempt-
A supreme court ( Article 129) and the High court ( (Article 215) have the power to punish any
person for the contempt of the court.

Freedom to appoint its staff-

The chief justice of India and the chief justice of High court has the power to appoints the
officers and servants in the staff of the court without any interference from the government.

Jurisdiction of the High court or supreme cannot be curtailed-

The parliament and the state legislature is not allowed to curtailed the jurisdiction of supreme
court or high court which is mentioned in the constitution. However parliament can enlarge the
jurisdiction of the supreme court or high court.

Separation of judiciary from executive (article 50)-

Article 50 of the constitution provides that the state shall take steps to separate the judiciary
from the executive in public services. This means that the executive authorities should not have
the judicial powers.

UNIT-4
RELATION BETWEEN CENTRE AND STATE-
INTRODUCTION- The constitution of India being federal in structure divide all powers between centre
and the states for ex- legislative, executive and financial power. However there is no division of judicial
power as the constitution has established and iterated judicial system to enforce both central as well as
state.

The centre state relations can be studied under 3 categories:-

A) Legislative relations
B) Administrative relations
C) Financial relation

 Legislative relations(Article 245-255)

Article 245-255 in part 11 of the constitution deal with the legislative relations between the centre and
the state. There as four aspects in the centre state legislature relation-

1. Territorial extent of central and state legislation.

2. Distribution of legislative subject.
3. Parliamentary legislation in the state field.
4. Central control over the state legislation.
  Territorial extent of central and state legislation-
1. The Parliament can make the laws whole or any part of the territory of the Indian. The
territory of India includes states, UT’s and any other area including in the territory of
India.
2. A state legislature can make laws for the whole or any party of the state. The law made
by a state legislature is not applicable outside the state except when there is sufficient
nexus(relation) between the state and the subject matter.
3. The Parliament alone can make extra territorial legislature. Therefore the laws of the
Parliament are also applicable to the Indian citizens and thee property in any part of the
world.

 Distribution of legislative subject-

The constitution provides 3 lists in the 7th schedule-

1. Union list
2. State list
3. Concurrent list

The union list has 97 entries on which the Parliament can make law. The state has 66 entries on which
generally the state legislation can make law. However under certain circumstances the Parliament can
also legislate on any matter which is mentioned in the state list. The concurrent list has 47 entries on
which the both Parliament and state legislatures can make law.

The power to make laws with respect to residuary subject is vested in the Parliament under Article 248 of
the constitution.

The constitution expressly provides that if any matter is mentioned in union list and state list then the
law of parliament will prevail over the law of state legislature. Further if there is a dispute between the
union list and concurrent list then the law of parliament which is made under union list shall prevail over
the law of state legislature which is made under concurrent list. If the dispute is between concurrent list
and state list then the law of parliament which is made under concurrent list shall prevail over law of
state legislature which is made under state list.

In case of conflict between the Central law and state law on any subject which is mentioned in the
concurrent list the central law will prevail over the state law but there is a exception. If the state law has
been reserved for the consideration of the President and it receives the assent of the President then the
central law will prevail over the central law in that state. However Parliament still would be competent
to override such state law later on by making a law on the same subject as per article 254 of the
constitution.

 Parliamentary legislation in the state field-

As a general rule only the state government can make law on any entry which is mentioned in the state
list. However there are 5 extraordinary circumstances Parliament can legislate in the state list.

1. When Rajya Sabha passes a resolution (article 249).

 2. During a national emergency ( article 250).
3. When State’s make a request ( article 252).
4. To implement international agreement (article 253).
5. During President rule ( article 356).

 When Rajya Sabha passes a resolution – The Rajya Sabha can pass the resolution by 2/3rd
majority of the members present and voting in the national interest. This resolution shall
empower the Parliament to make laws in the state list or a period of 1 year which is
renewable after one year. Any law made by Parliament during this time shall ceased to have
effect after six months from the expiry date of the resolution.

 During a national emergency- During national emergency also the Parliament acquired the
right to legislate on any matter which is mentioned in the state list. The law made during this
time shall become inoperative on the expiration of six months after the national emergency
has ceased to operate.

 When State’s make a request- when two or more states passes a resolution requesting the
Parliament to make law on any matter in the state list then Parliament gets the authority to
legislate on that particular subject. Such a law made by Parliament can only be amended or
repealed by parliament only and not by the legislatures of the concerned state. Ex- wildlife
protection act 1970.

 To implement international agreement- The Parliament can make law on any matter in the
state list for implementing the international treaties, agreement and convention.

 During President rule- Whenever President rule is imposed in any state then parliament
become empowered to make law in the state list.

Central control over state legislation:-

Besides the Parliament power to legislate directly on the state subject under 5 exceptional
circumstances, the constitution empowers the centre to exercise control over the state legislative
matters indirectly in the following ways-

1. The governor can reserve certain type of bills passed by the state legislature for the consideration of
the President and President enjoys absolute veto over them.

2. Bills on certain matters mentioned in the state list can be introduced in the state legislature only with
the previous sanction of the President.
3. The President can direct the state to reserve money bills and other financial bills passed by state
legislature for his consideration during a financial emergency.

Administrative relations between centre and state( Article 256-263)-

Article 256 to 263 in part 11 of the constitution deals with the administrative relations between the
centre and the state.

Distribution of executive powers:-

The executive power has been divided between the centre and the states on the lines on of the
distribution of legislative powers. Therefore the executive power of the centre extend to whole of India
and executive power of the state extend to its territory in respect of those matters which are mentioned
in the state list.

In respect of matters on which both the Parliament and state has power to legislate (concurrent list) .
The executive power rest with the states except when a constitutional provision or a Parliamentary law
specifically confer it on the centre.

Obligations of state and the centre-

The constitution has provided two restriction on the executive power on the state in order to give
adequate/sufficient scope to the centre for exercising its execution power. Therefore executive power
of every state is to be exercised in the following ways-

1. That it comply with the laws made by parliament.

2. That it doesn’t causes prejudice to the executive power of the centre in the state.

If the state executive authorities violates any of the above mentioned conditions then it will be lawful
for the President to hold that a situation has arisen in which the government of the state cannot be
carried on in accordance with the provision of constitution therefore the President rule can be imposed
under article 356.

Centre direction to the state executive-

In addition to the above two cases the centre is empowered to give directions to the states with regard
to the exercise of their executive power in the following matters-

1. The construction and maintenance of means of communication by the state.

2. The maintenance and protection of the Railway within the state.

3. Implementation of welfares schemes for the ST’s in the state.

Mutual delegation of executive functions-

Constitution provides inter-government delegation of executive function. Accordingly the President may
with the consent of the governor (Article 258) can delegate the executive function of the union to the
state. In the same way the governor may with the consent of central government can delegate the
executive function of the state to the central executive.
Further, Parliament has the authority to delegate the executive function of the centre to the state even
without the consent of the state government.

Cooperation between centre and the states-

The constitution contains some provisions in order to secure the co-operation between the centre and
the state-

1. Parliament can establish tribunal for inter-state river dispute under article 262.

2. President can establish an inter-state council to investigate and discussed the matter of common
interest between centre and the state.

3. Full faith and credit and credit is to be given throughout the territory of India to public acts, records
and judicial proceedings of the centre and every state.

Financial Relations between centre and state (Article 268-293)

Article 268-293 of the constitution deal with centre state financial relations. Beside these articles there
are some other provisions as well which deals with financial relation.

Allocation of taxing power-

1. The Parliament has exclusive power levy taxes in the union list.

2. State legislature has exclusive power to levy taxes on matters which are mentioned in state list.

3. Both the Parliament and state legislatures have power to make law regarding goods and service tax as
per Article 246(a).

4. The residuary power of taxation is vested in the Parliament.

Distribution of tax revenues-

The 80th amendment act 101 amendment act 2016 have introduced major changes regarding the
distribution of tax revenue between the centre and state.

The 80th amendment act provides that out of total income obtained from the central taxes and duties
29% should go to the states.

The 101 amendment act provides that both Parliament and state legislature have concurrent power to
tax on goods and services and the revenue obtained from such tax shall be distributed between centre
and state.

A. Taxes levied by centre but collected and appropriated by the state-

1. Stamp duties on cheques

2. promissory notes

3. policy of insurance
4. transfer of shares

B. Taxes levied and collected by centre by given to the states-

1. Taxes on the sale or purchase of goods in the course of interstate trade or commerce.

2. Taxes on the consignment of goods in the course of interstate trade or commerce.

C. Taxes levied and collected by the centre but distributed between the centre and the state.

This category includes all taxes and duties referred in the union list.

D. Surcharges on certain taxes and duties for the purpose of the centre-

Parliament can at any time surcharge the taxes and duties and the proceed of such surcharged go to the
centre exclusively.

E. Taxes levied and collected and retained by the state-

This category includes all taxes and duties referred in the state list the proceed of these taxes belongs
exclusively to the state.

Grant in aid to the states:-

There are two types of grants in aid-

1. Statutory grant ( Article 275)

2. Discretionary grant (Article 282)

• Statutory grant- article 275 empowers the Parliament to make grants to the states which are in need
financial assistance. Apart from these a specific can also be made for promoting the welfare of schedule
tribes in the sates.

• Discretionary grant- article 282 empowers the centre to make grants for any public purpose.

Finance commission (Article 280)

Article 280 provides that President shall constitute a finance commission in every five year. It is required
to make recommendation to the President on the following matters:-

1. The distribution of the net proceed of the taxes to be shared between centre and states.

2. The principal which should governs the grant in aid to the states by the centre.

State liability in Torts and Contract:-

Introduction- Article 300 of the constitution says that the government of India may sue or be sued by
the name of Union of India or Government of the state. Therefore the constitution makes the union and
the states as juristic person capable for acquiring property, making contact and carrying on trade and
business etc. just like a private individual.
Liability of state in contact:-

Article 299 authorises the government of India or Government of state to enter into contract for the
acquisition, holding and disposal of property, to carry on any trade or business or any other purpose. But
the constitution provides the following three conditions which must be fulfilled in order to make such
contract valid-

1. Contract must be expressed to be made by the President or the Governor.

2. It must be executed on the behalf of governor or president.

3. It must be executed by such person or in such manner as the President or governor may authorised.

If these conditions are not fulfilled then the contract shall be held void and not enforceable against the
government.

Further the President or the governor is not personally liable in respect of any contract executed in his
name.

Liability of the state in tort-

Before the independence there was law that Government will not liable for tort committed by its
servant during the performance of sovereign function but state can be had liable while doing non
sovereign function.

Under English common law there was maxim that “king can do no wrong” which means that the king
was not liable for wrongs of his servant. This immunity of the crown in Britain has been done away by
the crown proceeding act , 1947. However the position in India is still remains the same.

Case law- The State of Rajasthan vs Vidhwati 1962(SC)

Supreme court held that accident by the collector jeep was caused while doing non sovereign function
therefore state is liable to pay the compensation.

Case law- Kasturi lal vs. The State of U.P 1965(SC)

Court held that attach/ the property by the policy is the sovereign function of the state therefore state is
not liable if one of the police officer stole the property from the police station and run away to the
Pakistan.

Case Law- N. Nagendra Rao vs. State of Andhra Pradesh 1994(SC)

In this case court held that doctrine of sovereign function of the state is outdated and cannot sustain in
a democratic Republic country like India therefore state should be made liable to pay the compensation
if any wrong is done to the citizen by the public servant.

Case law- State of Andhra Pradesh vs Challa Ramkrishna Reddy 2000(SC) (Prison murder case)

Court held that the defence of sovereign immunity is an old and archaic defence and cannot be
accepted in our country therefore state and the police is liable to pay the compensation to the victim.
Freedom of trade commerce and intercourse within the Territory of
India ( Article 301-307)
Introduction- Article 301 to 307 of the constitution deal with trade, commerce and intercourse Article
301 declares that trade commerce and intercourse through out the territory of India shall be free. The
object of this provision is to increase the free flow of trade , commerce and intercourse in the country
this freedom is not only confined to interstate but also to intrastate , trade , commerce and intercourse.

Indian constitution borrowed this concept from 92 of the Australian constitution which says that trade ,
commerce and intercourse among the states absolutely free.

Meaning of trade commerce and intercourse-

The word trade means buying or selling of goods. The term commerce includes all forms of
transportation such as by air land and water. The term intercourse means movement of goods from one
place to another place.

Regulation and compensatory taxes are allowed

The word free in Article 301 doesn’t mean freedom from laws or regulations rather compensatory taxes
such as toll tax can be levied. Law can also provides some regulations like traffic regulations licence ,
charge for the maintenance of roads etc.

Case law- Atiabari Tea Co., Ltd. vs The State Of Assam 1951(SC)

The Assam government made a law to get the tax from exporting the tea. The petitioner who used to
export the tea to Calcutta via Assam challenged this law of Assam government.

The supreme court held that this law hamper the free flow of trade of the tea business therefore it is a
void law.

Restrictions on Trade and Commerce:-

• Parliament power to regulate trade and commerce in public interest-

Article 302 empowers the Parliament to impose restrictions on the freedom of trade, commerce or
intercourse if it is required in the public .

As per article 303 clause (1) Parliament cannot make any such law which give preference to one’s state
over the other. However can discriminate among the state if it is declared that there is scarcity of goods
in any part of the territory of India. The question whether there is scarcity of goods or not shall be
decided by parliament

• State powers to regulate trade and commerce-

Article 304(a) empowers the state to impose any tax on goods imported from other state if similar goods
in the state are also subject to the similar tax. It means state government cannot discriminate between
goods so imported or manufactured in the state.

Case law- State Of Madhya Pradesh vs Bhailal Bhai 1961(SC)

A state of law imposed sales tax on imported tobacco but locally produced tobacco was not subject to
such sale tax. Supreme court declared that law null and void.

Clause(b) of article 304 authorises the state to impose reasonable restrictions on the freedom of trade
Commerce and intercourse in the public interest but no bill for this purpose can be introduced in the
state assembly without the previous sanction of the President. A law passed by state assembly has to
fulfil the following three conditions-

1. Previous sanction of the President must be obtained.

2. Law must be in the public interest.

3. Restriction must be reasonable.

• State monopoly of any , business, profession ,commerce etc.

Government can have monopoly on any trade or business.

UNIT-5
AMENDMENT OF THE CONSTITUTION
Introduction- Article 368 of the constitution deals with the powers of parliament to amend the
constitution and its procedure. It says that parliament may amend the constitution by way of addition,
variation or repel and provision of the constitution.

Procedure for amendment-

1. An Constitutional amendment bill can be tabled in either house of the parliament.

2. Bill can be introduced either by a minister or private member of the house. And it doesn’t require any
prior permission of the President.

3. The bill must be passed in each house by a special majority i.e. a majority of the total membership of
the house and a majority of 2/3 of the members of the house present and voting.

4. Each house must passed the bill separately. In case of disagreement between the two houses there is
no provision for the joint sitting of the houses.

5. If the bill seeks to Amend the federal provision of the constitution than it must also be rectified by the
legislatures of the half states by simple majority. It means majority of the members of the house present
and voting. 6. After all these procedure the bill will be sent to the President for his assent. President can
neither can withhold his accent to the bill nor return the bill for the reconsideration of the parliament it
means he has to give his accent to the Constitutional amendment bill.

Types of Amendment-
1. Article 368 provides two types of amendments i.e. by special majority of the parliament and also
thorough the ratification of half of the states by simple majority. Therefore the Constitution can be
amended by the three ways two are given in the article 368 itself and one i.e. Amendment by simple
majority is given in different provision of the constitution.

A) Amendment by simple majority by the parliament - There are 18 provision there are 18 provision
which provides Amendment by simple majority in the Constitution.

B) Amendment by special majority of the parliament- The large portion of the constitution can be
amended by the special majority of the constitution.

C) Special majority of the parliament and consent of the states-Those provisions which changes the
federal structure of the constitution can be amended by this procedure-

1. Election of President and its manner

2. Changes in the supreme court and high court.

3. Changes in the executive powers of the union and the states.

4. Distribution of legislative power between the union and states.

5. Any change in the 7th schedule

6. Any change in the 4th schedule

7. Any change in the article 368 itself

Can parliament amend the fundamental rights under Article 368-

Case law- Sri Shankar Prasad Singh Deo vs. Union of India 1951

Case law- Sajjan singh vs. State of Rajasthan 1965

In this two cases supreme court held that parliament can change any provision of the constitution
including fundamental rights.

Case law- Golaknath vs. State of Punjab 1971

Supreme court overruled sankari prasad and sajjan singh case and held parliament cannot Amend the
fundamental rights mentioned under part 3 of the constitution.

24th Amendment act 1974-

Parliament added clause 4th to article 13 which says that parliament can amend any provision of the
constitution including the fundamental rights.

Parliament brought this amendment to nullify the ruling of golaknath case.

Case law- keshwanand bharti vs state of kerala 24th april 1973-

Supreme upheld the Constitutional validity of 24th Amendment act and held that parliament can
change any provision including the fundamental rights of the constitution subject to the basic structure.
42nd Amendment act 1976-

Parliament added clause 4th and 5th in Article 368 which says that parliament can change any provision
of the constitution and court shall have no power of Judicial review.

Case law- Minerva Mills Ltd. Vs. Union of India 1980

Supreme court declared 42nd Amendment unconstitutional (invalid) which dealt with the article 368.

Presently the position is the same which was declared in the judgement of keshwanand bharti case i.e.
parliament can amend anything subject to basic structure of the constitution.