CONSTITUTIONAL LAW – II

(Subject Code - LC 0701)

STUDY MATERIAL
FOR
LL.B. – II (Sem. – III), B.A.LL.B. – IV (Sem. – VII) and
B. B.A.LL.B. – IV (Sem. – VII) Pattern – 2017

By
Dr. Atul Lalasaheb More
(Asso. Prof.)
B.Sc. (Hons.), LL.M., Ph.D. (Law), NET (Law)

Associate Professor Ph. D. Guide, Dept. of Law,

New Law College, Member, BoS, Faculty of Law,
Ahmednagar Savitribai Phule Pune University,
Pune

ACADEMIC YEAR
2020-21

1
 ACKNOWLEDGEMENTS

At the outset, I acknowledge my indebtness for kind help and blessings extended to me
by Prof. Dr. Dilip Ukey, Vice Chancellor, MNLU, Mumbai and Prof. Dr. Durgambini Patel,
former HoD, Dept. of Law Savitribai Phule Pune University, who taught me in my LL.M study
and guided me during my Ph. D. research. I would like to particular mention about their
contribution in understanding and analyzing basic concepts during my study of Constitutional
Law, Administrative Law, Jurisprudence and Research Methodology, which promoted me to
undertake research, study and write on law subjects.
I should also thank my colleagues of BoS (Faculty of Law), Savitribai Phule Pune
University, Pune who help and encouraged me in this regards.
I should thank and deeply appreciate to all respected office bearers of our Sanstha namely
Ahmednagar Jilha Marath Vidya Prasarak Samaj, Ahmednagar. I would like to special mention
about its President, Shri. Nandakumar Zaware-Patil, Vice President, Shri. Ramchandra Dare,
Secretary, Shri. G. D. Khandeshe, Joint Secretary, Adv. Vishwasrao Athare Patil,
Treasurer, Dr. Vivek Bhapkar and Trusty Adv. Deeplaxmi Mhase Patil for their esteemed help,
support, co-operation and encouragement to undertake this activity.
Prof. M. M. Tambe, I/C Principal, all my Teaching and Non-Teaching colleagues,
Librarian Dr. P. G. Dhirade and students of New Law College, Ahmednagar who have initiated
me to prepare this study material.
I should mention without fail my indebtness to the authors for their works which is being
acknowledged in this study material and also to those their acknowledgements might be escaped
unintentionally. Besides this, I wish to thank those persons with whom I consulted for organizing
this study material.
It is true this acknowledgement shall be incomplete without my expression of gratitude
to my wife Adv. Aruna and other family members for sparing me to complete this study material.

Place: Ahmednagar
Date: 26th June 2020 Dr. More Atul Lalasaheb
(Asso. Prof. (Law))

2
Preface
The course of Constitutional Law – II Paper (Subject Code - LC 0701) of LL.B. – II
(Sem. – III), B.A.LL.B. – IV (Sem. – VII) and B. B.A.LL.B. – IV (Sem. – VII) Pattern – 2017
is designed on the basis of recommendations of Bar Council of India and UGC, New Delhi. I am
glad to reveal that the syllabus of this paper which is framed by Committee of BoS (Faculty of
Law), SPPU, Pune, I was a member of that Committee. The syllabus is framed with an objective
to acquaint the students with the Federal Principles of Indian Constitution and the powers,
functions and structures of various State organs established under it.
As it is said that the Constitution of India is living document hence, I am of the view that
it will be advantageous to study the content of this paper in the Social, Economic and Political
context in which the Constitution of India operates. I would like to particularly mention about
various amendments done in the Constitution of India regarding Anti-Defection Law, Panchayat
Raj, Applicability of provisions of RTI Act to the election of MPs and MLAs, Applicability of
provisions of Lok Pal Act, 2016 to the post of Prime Minister, Extension of period of reservation
of Seats to SCs/STs in Lok Sabha and State Legislative Assemblies, Provisions of Taxing (GST),
Abolition of Article 370 and 35A etc. The Apex Court also has given positive response by laying
down important rulings in this behalf. Hence, under this study material I have discussed most of
the relevant and important components which are need to be studied in the respective Modules of
the syllabus of this paper.
I would like to suggest to all law students, researcher and readers of this subject that in
order to avoid lengthiness of study material I have mentioned only those relevant aspects which
needs to be studied in each module, so you should read in detail those aspects from the reference
material which I acknowledged at the end leaf of this study material. Really I appreciate the great
work done by those authors in this subject.
I hope this study material will be useful to you, I will be happy to accept any relevant
suggestions to improve the contents of this study material.

Dr. More Atul Lalasaheb

(Asso. Prof. (Law))

3
 SYLLABUS
CONSTITUTIONAL LAW - II
(Sub. Code - LC 0701)
(Pattern - 2017)
B.A. LL.B. – IV (Sem. – VII), B.B.A. LL.B. – IV (Sem. – VII) and LL.B. – II (Sem. – III)

Module – 01 Nature of Indian Federalism:

1. Forms of Governments
2. Concept of Federalism
3. Essential characteristics of American Federalism
4. Essential characteristics of Indian Federalism
5. Indian Federalism distinguishes from American Federalism
Module – 02 Structure Powers and Functions Union and State Executive:
1. Union Executive (Articles 52 to 78)
2. State Executive (Articles 152 to 167)
Module – 03 Structure, Powers and Functions of Union and State Legislature:
1. Union Legislature (Articles 79 to 123)
2. State Legislature (Articles 168 to 213)
Module – 04 Structure, Powers and Functions of Supreme Court, High Court and Tribunals:
1. Supreme Court (Articles 124 to 147)
2. High Court and Subordinate Courts (Articles 214 to 237)
3. Tribunals (Articles 323A and 323B)
Module – 05 Relations between Union and the States:
1. Legislative Relations between Union and the States (Articles 245 to 255)
2. Administrative Relations between Union and the States (Articles 256 to 263)
3. Financial Relations between Union and the States (Articles 264 to 290A), An Overview of the Constitution (One Hundred First
Amendment) Act, 201
Module – 06 Constitutional Position of Jammu and Kashmir:
1. Historical background of Article 370
2. Provisions of Article 370 of the Constitution
3. The Constitutional (Application to Jammu and Kashmir) Order, 1954
Module – 07 Other Constitutional Institutions / Authorities:
1. Comptroller and Auditor-General of India (Articles 148 to 151)
2. Administration of Union territories (Articles 239 to 241)
3. Structure Powers and Functions of Panchayats (Articles 243 to 243O)
4. Structure Powers and Functions of Municipalities (Articles 243P to 243ZG)
5. Services and Public Service Commissions (Articles 308 to 323)
6. Elections and Election Commission (Articles 324 to 329)
Module – 08 Other Constitutional Provisions:
1. Borrowing (Articles 292 to 293)
2. Property, Contracts, Rights, Liabilities, Obligations and Suits (Articles 294 to 300)
3. Freedom of Trade, Commerce and Intercourse (Articles 301 to 307)
4. Official Language (Articles 343 to 351)
Module – 09 Emergency Provisions - Grounds, Approval for Continuation and Effects (Articles 352 to 360) :
1. National Emergency
2. State Emergency
3. Financial Emergency
Module – 10 Commissions and Committees on Union-State Relations - Objectives and Recommendations:
1. Administrative Reforms Commission (1966)
2. Rajmannar Committee (1969)
3. Sarkaria Commission (1983)
4. Punchhi Commission (2007)

4
 MODULE - 01
NATURE OF INDIAN FEDERALISM

The Constitution of India is unique in ratification of not less than one half of the
many ways: It- has several special features that States. The fact that during 60 years, there were
distinguish it from other Constitutions of the as many as 94 amendments disproves the charge
world. of the rigidity of our Constitution.
Types of Constitution Federal or Unitary: Constitutions are also
Written or unwritten: Constitutions may be divided between federal and unitary. The classic
written like the U.S. Constitution or unwritten example of the first category again is the U.s.
and based on conventions like the British. Our Constitution and of the second the U.K.
Constitution is written even though conventions Constitution. In a unitary constitution, all
also playa part insofar as they are in keeping powers are vested in the Central Government to
with the provisions of the Constitution. which the authorities in the units are subordinate
Rigid or Flexible: Constitutions may be called and function as the agents of the Government at
rigid or flexible on the ground of the amending the Centre and exercise authority by delegation
procedure being difficult or easy. Federal from the Centre. In a federal polity, usually,
Constitutions are usually classified as rigid there must be a rigid, written constitution, it
because of their difficult amending processes. must be supreme and it must specifically divide
Our Constitution may be said to be a powers between the federal government and the
combination of rigid and flexible inasmuch as governments of the units-both exercising powers
certain provisions of the Constitution e.g. in their respective spheres in their own right and
Articles 2, 3 and 4, and 169-can be amended like independently. In fact, in a classic federation,
ordinary legislation by simple majority in the the federal government enjoys only those
Houses of Parliament, other provisions can be powers that are by agreement surrendered to it
amended under Article 368 by the Houses of by the units. Also, there must be an independent
Parliament by a special majority of 2/3rd of the supreme court as the arbiter of any disputes
members present and voting and a majority of between the Union and the States.
the total membership in each House. Only in the India's Constitution has been variously
case of a few of the provisions, in addition to a described as quasi-federal, federal with a strong
special majority in the two Houses of unitary or pro-centre bias, federal in structure
Parliament, an amendment would require the but unitary in spirit, federal in normal times but

5
with possibilities of being converted into a Reasons for this unique unitary-federal
purely unitary one during Emergency, etc. The mix are to be found in the constitutional history
fact is that it is difficult to put our Constitution of India, the sheer size of the country and in the
in any strict mould of a federal or unitary type; it nature of her complex diversities based on
has features of both. It cannot be considered religion, language, region, culture etc. Moving
unitary because it provides, for example, for the Draft Constitution for adoption by the
distribution of executive and legislative powers Constituent Assembly, the Chairman of the
between the Union and the States and provisions Drafting Committee, Dr. B.R. Ambedkar tried to
affecting the powers of the States or Union-State explain the significance of using the term
relations cannot be amended without ratification "Union of States" instead of "Federation of
by the States. It cannot be considered strictly States" in the following words:
federal either because the residuary powers vest “The Drafting Committee wanted to make it
in the Union. As Dr. Ambedkar said, rigidity and clear that though India was to be a federation,
legalism were the two serious weaknesses of the federation was not the result of an
federalism. The Indian system was unique in agreement by the States to join in a federation
that it created a dual polity with a single Indian and that the federation not being the result of an
citizenship. It could be both unitary and federal agreement, no state has the right to secede from
according to requirements of time and it. The federation is a Union because it is
circumstances. Under Article 249, the Union indestructible. Though the country and the
Parliament can invade the State List. Under people may be divided into different States for
Articles 356 and 357, on the ground of failure of convenience of administration, the country is
constitutional machinery in any State, all its one integral whole, its people a single people
executive and legislative powers may be taken living under a single imperium derived from a
over by the Union and under Articles 352 to single source.”
354, the Constitution can be converted into an The text of the Constitution does not use
entirely unitary one inasmuch as during the term 'federal' or 'federation'. The Supreme
Proclamation of Emergency, the executive and Court has spoken of the Indian Union as
legislative powers of the Union extend to 'federal', 'quasi-federal' or 'amphibian' meaning
matters even in the State List. Finally, under sometimes 'federal' and sometimes 'unitary'.1
Articles 2, 3 and 4, new States may be formed Parliamentary or Presidential System
and areas, boundaries or names of existing-
1
States altered by the Union Parliament by . State of Rajasthan v. Union of India, AIR 1977
SC 1361. Also see under Chapter 6, 'The Union
ordinary law passed by simple majority votes. and its Territory'

6
 India is a Republic and the head is the differences and departures. To name a few; the
President in whom all the executive power vests UK. Constitution is still largely unitary, while
and in whose name it is to be exercised. He is ours is largely federal. They are a monarchy
also the Supreme Commander of the armed with a hereditary King/ Queen while we are a
forces. It has been held, however, that unlike the republic with an elected President, unlike the
U.S. President, our President is only a nominal British we have a written constitution and our
or constitutional head of the executive; he acts Parliament, therefore, is not sovereign even in
only with the aid and advice of the real political theory and legislation passed by it is subject to
executive which is the Council of Ministers. The judicial review. Our Constitution includes a
Ministers are collectively responsible to the charter of justiciable fundamental rights which
popular House of Parliament i.e. the Lok Sabha. are enforceable by the Courts not only against
Thus, following the British pattern, the the executive but also against the legislature
Constitution of India has basically adopted, both unlike the position in UK. Of course, in UK.
at the Union and State levels, the parliamentary also such rights have now become enforceable
system of government with ministerial after the Bill passed in 1998 came into operation
responsibility to the popular House as against in 2000.
the US. system of Presidential Government with There has been some debate in our
separation of powers and a nearly irremovable country on the desirability or otherwise .of
President as the Chief Executive for a fixed moving over) to the Presidential model. The
term. In the U.s. system, the President chooses founding fathers, however, preferred the
his team of ministers from among the citizens at parliamentary form because they had some
large and the ministers are not members of the experience of operating it and there were
legislature while in the Parliamentary System, advantages in continuing established institutions.
the Ministers are from Parliament and remain After a long struggle for responsible government
part of it and responsible to its House of the and against arbitrary executive authority, they
People. The Parliamentary System may be said were naturally allergic to a fixed term
to be laying greater stress on the concept of the irremovable executive. In a highly pluralistic
responsibility of the executive while the society with India's size and diversity and with
Presidential system obviously promotes more many pulls of various kinds, they believed that
the stability of the executive. the parliamentary form was the most suited for
It would, however, be wrong to assert accommodating a variety of interests and
that we have adopted the British parliamentary building a united India.
system in toto. There are several fundamental

7
 Discussing the problem of making a has been built for over a hundred years and buy
choice between the U.S. Presidential-model and a novel experience?”
the British parliamentary model, both of which PARLIAMENTARY SOVEREIGNTY VS.
were democratic, Dr. Ambedkar had said in the JUDICIAL SUPREMACY
Constituent Assembly: In the British parliamentary system,
“A democratic executive must satisfy two Parliament was supposed to be supreme and
conditions - 1) It must be a stable executive and sovereign. There were no limitations on its
2) it must be a responsible executive. powers, at least in theory, inasmuch as there was
Unfortunately it has not been possible so far to no written constitution and the Judiciary had no
devise a system which can ensure both in equal powers of judicial review of legislation even if a
degree. You can have a system which can give law violated fundamental human rights.
you more stability but less responsibility or you In the U.S. system, the Supreme Court
can have a system which gives you more with its power of judicial review and of
responsibility but less stability. The American interpreting the Constitution has assumed
and the Swiss systems give more stability but supremacy.
less responsibility. The British System on the In India, the Constitution has arrived at
other hand gives you more responsibility but a middle course and a compromise between the
less stability. The Draft Constitution in British sovereignty of Parliament and American
recommending the Parliamentary system of judicial supremacy. We are governed by the rule
Executive has preferred more responsibility to of law and judicial review of administrative
more stability.” action is an essential part of rule of law. Thus,
K.M. Munshi put the argument more courts can determine not only the
candidly when he said: constitutionality of the law but also the
“We must not forget a very important fact that procedural part of administrative action (State of
during the last hundred years, Indian 'public life Bihar v. Subhash Singh, AIR 1997 SC 1390).
has largely drawn upon the traditions of British But, since we have a written constitution and the
Constitutional Law. Most of us have looked up powers and functions of every organ are defined
to the British model as the best. For the last and delimited by the Constitution, there is no
thirty or forty years, some kind of responsibility question of any organ-not even Parliament-being
has been introduced in the governance of this sovereign. Both Parliament and the Supreme
country. Our constitutional traditions have Court are supreme in their respective spheres.
become parliamentary. After this experience, While the Supreme Court may declare a law
why should we go back upon the tradition that passed by Parliament ultra vires as being

8
violative of the Constitution, Parliament may A federation has well-established dual
within certain restrictions amend most parts of polity or dual government viz., the federal
the Constitution. government and the state governments. The
While many Constitutions of nations force of the government is divided between the
framed after the Second World War have federal and state governments which are not
floundered and gone into oblivion, our subordinate to one another but coordinate bodies
Constitution has successfully faced many crises that are independent within their respective
and survived. This itself is evidence of its allotted spheres. Therefore, the existence of co-
resilience, dynamism and growth potential. ordinate authorities independent of each other is
Therefore in the context of above the foundation of the federal principle. A
discuss the basis question raised - Is the Indian Constitution which embodies a federal system is
Constitution federal, unitary or quasi-federal? said to possess the following five characteristics:
The members of the Drafting Committee of the 1. Distribution of Powers
Constituent Assembly of India called it federal. An essential feature of a federal
But there are jurists who dispute this title. It is, Constitution is the distribution of powers
therefore, imperative to ascertain, what is a between the central government and the
federal Constitution and what are its essential governments of the several units (provincial
characteristics? However, the answer to this governments) forming the federation. Federation
Question is compounded by the fact that there is means the distribution of the power of the State
no agreed definition of a federal State and it is among a number of co-ordinate bodies, each
customary with scholars on the subject to start originating from and controlled by the
with the model of the United States, the oldest Constitution.
(1787) of all federal Constitutions in the world, 2. Supremacy of the Constitution
and to exclude any system that does not conform This means that the Constitution should
to that model from the nomenclature of be binding on the federal and state governments.
federation. But it is generally agreed that Neither of the two governments should be in a
whether a State is federal or unitary is one of position to override the provisions of the
degree and whether it is a federation or not Constitution relating to the powers and status
depends upon the number of federal features it which each is to enjoy. This requirement is
possesses.2 satisfied if the 6upremcy or overriding authority
A FEDERAL STATE is accorded only to the provisions relating to the

2
division of powers. Other provisions of the
. https://www.brainyias.com/federal-and-unitary-
features-of-indian-state/ (Dated 25/05/2020) Constitution, which do not relate to the

9
relationship between the Centre and the units, law to maintain the division of powers not only
need not be supreme. between the state governments, but also between
3. Written Constitution the federal government on one hand and the
The Constitution must necessarily be a state governments on the other. The courts of
written document. It will be practically law are vested with power to declare laws made
impossible to maintain the supremacy of the by the federal or state governments, ultra
Constitution, unless the terms of the vires on the ground of excess of
Constitution have been reduced into writing. power. Secondly, to constitute a final Supreme
4. Rigidity Court which should not be dependent upon the
This feature is a corollary to the federal or state governments and should be
supremacy of the Constitution. Here rigidity armed with the final authority to interpret the
does not mean that Constitution is unamendable Constitution. A perusal of the provisions of the
or not subject to change. It simply means that Constitution of India reveals that the political
the power of amending the provisions of the system introduced by it possesses all the
Constitution which regulates the status and aforesaid essentials of a federal polity.
powers of the federal and state government The Indian Constitution establishes a
should not be confined exclusively either to the dual polity. The dual polity consists of the
federal or state governments, but must be a joint Union at the Centre and the States at the
act of both. As regards the provisions of the periphery, each endowed with powers to be
Constitution that are not concerned with the exercised in the field assigned to them
federal system there is no need to maintain the respectively, by the Constitution. The powers of
same rigidity. the Union and the States are clearly demarcated.
5. Independent and impartial authority of The Constitution is written and supreme.
Courts Enactments in excess of the powers of the Union
The legal supremacy of the Constitution or the State Legislatures are invalid. Moreover,
which is an essential feature of a federal State an amendment which makes any changes in the
makes it necessary that there must be an status or powers of the Centre or the State
authority above both, the federal government Legislatures is invalid. Further, any amendment
and the component state governments to decide which makes changes in the status or powers of
whether they are operating under the frame of the Centre or the units is possible only with the
the Constitution in desired manner. This aspect concurrence of the Union and of a majority of
of involves two connected matters. Firstly, there the States. Finally, the Constitution establishes a
must be some authority, normally the courts of Supreme Court to decide disputes between the

10
Union and the States or between the States and 2. Power to form new States and to change
to interpret finally the provisions of the existing boundaries
Constitution. In the USA, it is not possible for the
UNITARY STATE federal government to unilaterally change the
A State is unitary when it is governed territorial extent of a State but in India, the
constitutionally as one single unit, with one Parliament can do so even without the consent
constitutionally created legislature. All power is of the State concerned. Under Art 3, Centre can
top down. In federal system, power is divided change the boundaries of existing States and can
between federal units. A unitary State is a carve out new States. This should be seen in the
sovereign State governed as one single unit in perspective of the historical situation at the time
which the Central government is supreme and of independence.
any administrative divisions (sub-national units) At that time there were no independent
exercise only powers that the Central States. There were only Provinces that were
government chooses to delegate. Thus, while in formed by the British based on administrative
a federal State, both the Central government and convenience. At that time States were artificially
State governments derive their authority from created and a provision to alter the boundaries
the same Constitution, in a unitary State, the and to create new States was dept so that
State governments derive their authority as appropriate changes could be made as per
delegated by the Central government. requirement. It should be noted that British India
UNITARY FEATURES OF INDIAN did not have States similar to the States in the
CONSTITUTION USA. Thus, the States in India do not enjoy the
1. Union of States right to territorial integrity.
Article 1 of the Constitution describes 3. Unequal Representation in the Legislature
India as a “Union of States”, which implies two The equality of units in a federation is
things: firstly, it is not the result of an agreement best guaranteed by their equal representation in
among the States, as it is there in federations and the Upper House of the federal legislature
secondly, the States have no freedom to secede (Parliament). However, this is not applicable in
or separate from the Union. Besides, the case of Indian States. They have unequal
Constitution of the Union and the States is a representation in the Rajya Sabha. In a true
single framework from which neither can get out federation such as that of United States of
and within which they must function. The Indian America every State irrespective of their size in
federation is a union because it is indestructible terms of area or population, sends two
and helps to maintain the unity of the country. representatives to the Upper House i.e. Senate.

11
4. Single Constitution otherwise given to federal units in conventional
There is a single Constitution for both federations such as USA and Australia.
Union and the States. There is no provision for 7. Power to make laws on the subjects in State
separate Constitutions for the States, except for list
Jammu and Kashmir. In the USA and Australia, The Parliament has the exclusive
the States have their own Constitutions which authority to make laws on the 100 subjects of the
are equally powerful as the federal Constitution. Union list, but the States do not have such
Nor the States of India can propose amendments exclusive rights over the State list. Under certain
to the federal Constitution. As such amendments circumstances, the Parliament can legislate on
can only be made by the Union Parliament. subjects of State list. This power is exercised
5. Single citizenship only on the matters of national importance and
India follows the principle of uniform that too if the Rajya Sabha agrees with
and single citizenship, but in the USA and 2/3rdmajority. There are five such situations as
Australia, double citizenship is followed. This mentioned below:
means that people are citizens of both the federal (1) Under Art. 249, if the Rajya Sabha passes a
State and their own State which has its own resolution with not less than 2/3rd majority,
Constitution. authorizing Parliament to make laws on any
6. More powers to the Central government in State subject, on the ground that it is
the list of subjects expedient or necessary in the national
In India, the distribution of powers has interest, then Parliament can legislate over
made the Central government very strong. In the that subject. Such laws shall be in force for
Schedule VII which contains the distribution of only 1 year and can be continuously
powers among units of federation, the Union list extended any number of times but for not
consists of 100 subjects whereas there are only more than one year at a time.
61 subjects in the State list. Again in the (2) Under Art 250, if national emergency is
Concurrent list, there are 52 subjects. In case of declared under Art 352, the Parliament has
an overlap or conflict, the Constitution secures the right to make laws with respect to all the
the predominance of Union list over Concurrent 61 subjects in the State list automatically i.e.
and State lists as well as that of Concurrent list the State list is transformed into the
over State list. Even the Residuary powers (the Concurrent list.
power to make laws on those subjects which (3) Under Art 252, if the Legislatures of two or
have not been mentioned in any of the lists) have more States request the Parliament to
been given to the Union government, which are legislate on a particular State subject, the

12
 Parliament can do so. However, such Articles 352, 356 and 360 for an act of foreign
legislation can be amended or repealed only aggression or internal armed rebellion,
by the Parliament. failure of constitutional machinery in a State and
(4) Under Art 253, the Parliament can make financial emergency respectively..
laws even on subjects in the State list to During the operation of an emergency, the
comply with the international agreements to powers of the State governments are greatly
which India is a party. The States cannot railed and the Union government acquires all the
oppose such a move. An example or this is powers. If the President declares
the Persons with Disabilities (Equal emergency for the whole or part of India under
Opportunities, Protection of Rights and Full Article 352, the Parliament can make laws on
Participation) Act, 1995 which was enacted subjects, which are otherwise, exclusively under
for giving effect to the Proclamation on the the State list. The Parliament can give directions
Full Participation and Equality of the People to the States on the manner in which to exercise
with Disabilities in the Asian and Pacific their executive authority in matters within their
Region convened by the Economic and So- charge. The financial provisions can also be
vial commission for Asia and Pacific held at suspended. Thus in one stroke, the Indian
Beijing in 1992. federation acquires a unitary character.
(5) Under Art. 356, if President’s rule is However, such a situation is not possible in
imposed in a State the power of the other federal Constitutions.
legislature of that State become exercisable 10. Appointment of Governor
by or under the authority of the Parliament. Articles 155 and 156 provide that the
This gives the Parliament full powers to Governor, who is the constitutional head of a
legislate on any matter included in the State State, is to be appointed by the President and
list. stays only until the pleasure of the President.
(6) In financial matters too, the States depend Thus, he is not responsible to the State
upon the Union to a great extent. The legislature. The Centre may take over the
states do not possess adequate financial administration of the State on the
resources to meet their requirements. During recommendations of the Governor or otherwise,
emergency, the Centre exercises full control to impose the President’s rule. In other words,
over the States’ finances. Governor is the agent of the Centre in the States.
9. Emergency provisions The working of Indian federal system clearly
The President of India an declare three reveals that the Governor has acted more as a
different types of emergency rules under Central representative than as the head of the

13
State. This enables the Union government to VIEWS OF DR. B. R. AMBEDKAR ON
exercise control over the State administration. AMERICAN AND INDIAN
11. Administrative directions to the States CONSTITUTION3
Under Article 256, the Centre can give In the Draft Constitution there is placed
administrative directions to the States, which are at the head of the Indian Union a functionary
binding on the latter. Along with the directions, who is called the President of the Union. The
title of this functionary reminds one of the
the Constitution also provides measures such as
President of the United States. But beyond
President’s rule under Article 365, to be adopted
identity of names there is nothing in common
by the Centre to ensure such compliance. between the form of Government prevalent in
12. Unified Judiciary America and the form of Government proposed
The federal principle envisages a dual under the Draft Constitution. The American
system of Courts. But, in India there is a single form of Government is called the Presidential
system of Government. What the Draft
integrated judicial system for whole of the
Constitution proposes is the Parliamentary
country. We have unified Judiciary with the
system. The two are fundamentally different.
Supreme Court at the apex. The High Courts Under the Presidential system of
work under its supervision. Similarly, the other America, the President is the Chief head of the
courts in a State work under the respective State Executive. The administration is vested in him.
High Court. Under the Draft Constitution the President
13. Appointment on Key Positions occupies the same position as the King under the
English Constitution. He is the head of the State
In addition to all this, all important
but not of the Executive. He represents the
appointments such as the Chief Election
Nation but does not rule the Nation. He is the
Commissioner, the Comptroller and Auditor symbol of the nation. His place in the
General are made by the Union government, administration is that of a ceremonial device on
though their jurisdiction extends to both Union a seal by which the nation's decisions are made
and the States. known. Under the American Constitution the
President has under him Secretaries in charge of
14. All India Services
different Departments. In like manner the
Under Article 312, the All India
President of the Indian Union will have under
Services officials IAS, IPS and IFS (Forest) are him Ministers in charge of different
appointed by the Centre, but are paid and Departments of administration. Here again there
controlled by the State. However, in case of any is a fundamental difference between the two.
irregularities or misconduct committed by the The President of the United States is not bound
officer, the States cannot initiate any disciplinary 3
. Speech given by Dr. B. R. Ambedkar on the
action except suspending him/her. Motion re Draft Constitution, 4th Nov. 1948

14
to accept any advice tendered to him by any of it is not dependent for its existence upon a
his Secretaries. The President of the Indian majority in the Congress, while the British
Union will be generally bound by the advice of system is a Parliamentary Executive which
his Ministers. He can do-nothing contrary to means that it is not dependent for its existence
their advice nor can he do anything without their upon a majority in the Congress, while the
advice. The President of the United States can British system is parliamentary Executive which
dismiss any Secretary at any time. The President means that it is dependent upon a majority in
of the Indian Union has no power to do so long Parliament. Being a non-Parliamentary
as his Ministers command a majority in Executive, the Congress of the United States
Parliament. cannot dismiss the Executive. A Parliamentary
The Presidential system of America is Government must resign the moment it loses the
based upon the separation of the Executive and confidence of a majority of the members of
the Legislature. So that the President and his Parliament. Looking at it from the point of view
Secretaries cannot be members of the Congress. of responsibility, a non-Parliamentary Executive
The Draft Constitution does not recognize this being independent of parliament tends to be less
doctrine. The Ministers under the Indian Union responsible to the Legislature, while a
are members of Parliament. Only members of Parliamentary Executive being more dependent
Parliament can become Ministers. Ministers upon a majority in Parliament become more
have the same rights as other members of responsible. The Parliamentary system differs
Parliament, namely, that they can sit in from a non-Parliamentary system in as much as
Parliament, take part in debates and vote in its the former is more responsible than the latter but
proceedings. Both systems of Government are of they also differ as to the time and agency for
course democratic and the choice between the assessment of their responsibility. Under the
two is not very easy. A democratic executive non-Parliamentary system, such as the one that
must satisfy two conditions - (1) It must be a exists in the U.S.A. the assessment of the
stable executive and (2) it must be a responsible responsibility of the Executive is periodic. It is
executive. Unfortunately it has not been possible done by the Electorate. In England, where the
so far to devise a system which can ensure both Parliamentary system prevails, the assessment of
in equal degree. You can have a system which responsibility of the Executive is both daily and
can give you more stability but less periodic. The daily assessment is done by
responsibility or you can have a system which members of Parliament, through questions,
gives you more responsibility but less stability. Resolutions, No-confidence motions,
The American and the Swiss systems give more Adjournment motions and Debates on
stability but less responsibility. The British Addresses. Periodic assessment is done by the
system on the other hand gives you more Electorate at the time of the election which may
responsibility but less stability. The reason for take place every five years or earlier. The Daily
this is obvious. The American Executive is assessment of responsibility which is not
anon-Parliamentary Executive which means that available under the American system is it is felt

15
far more effective than the periodic assessment Government. In the same way the Indian
and far more necessary in a country like India. Constitution proposed in the Draft Constitution
The Draft Constitution in recommending the is not a league of States nor are the States
Parliamentary system of Executive has preferred administrative units or agencies of the Union
more responsibility to more stability. Government. Here, however, the similarities
So far I have explained the form of Government between the Indian and the American
under the Draft Constitution. I will now turn to Constitution come to an end. The differences
the other question, namely, the form of the that distinguish them are more fundamental and
Constitution. glaring than the similarities between the two.
Two principal forms of the The points of difference between the
Constitution are known to history - one is American Federation and the Indian Federation
called Unitary and the other Federal. The two are mainly two. In the U.S.A. this dual polity is
essential characteristics of A Unitary followed by a dual citizenship. In the U.S.A.
Constitution are : (1) the supremacy of the there is a citizenship of the U.S.A. But there is
Central Polity and (2) the absence of subsidiary also a citizenship of the State. No doubt the
Sovereign polities. Contrariwise, a Federal rigours of this double citizenship are much
Constitution is marked: (1) by the existence of a assuaged by the fourteenth amendment to the
Central polity and subsidiary polities side by Constitution of the United States which prohibits
side, and (2) by each being sovereign in the field the States from taking away the rights,
assigned to it. In other words. Federation means privilegesand immunities of the citizen of the
the establishment of a Dual Polity. The Draft United States. At the same time, as pointed out
Constitution is, Federal Constitution inasmuch by Mr. William Anderson, in certain political
as it establishes what may be called a Dual matters, including the right to vote and to hold
Polity. This Dual Polity under the proposed public office, States may and do discriminate
Constitution will consist of the Union at the infavour of their own citizens. This favoritism
Centre and the States at the periphery each goes even farther in many cases. Thus to obtain
endowed with sovereign powers to be exercised employment in the service of a State or local
in the field assigned to them respectively by the Government one is in most places required to
Constitution. This dual polity resembles the the be a local resident or citizen. Similarly in the
American Constitution. The American polity is licensing of persons for the practice of such
also a dual polity, one of it is known as the public professions as law and medicine,
Federal Government and the other States which residence or citizenship in the State is frequently
correspond respectively to the Union required; and in business where public
Government and the States Government of the regulation must necessarily be strict, as in the
Draft Constitution. Under the American sale of liquor, and of stocks and bonds, similar
Constitution the Federal Government is not a requirements have been upheld.
mere league of the States nor is the States Each State has also certain rights in its
administrative units or agencies of the Federal own domain that it holds for the special

16
advantage of its own citizens. Thus wild game smaller buildings standing on the same ground,
and fish in a sense belong to the State. It is yet distinct from each other."
customary for the States to charge higher Distinct they are, but how distinct are
hunting and fishing license fees to non-residents the State Governments in the U.S.A. from the
than to its own citizens. The States also charge Federal Government? Some idea of this
non-residents higher tuition in State Colleges distinctness may be obtained from the following
and Universities, and permit only residents to be facts:
admitted to their hospitals and asylums except in 1. Subject to the maintenance of the republican
emergencies. form of Government, each State in America
In short, there are a number of rights is free to make its own Constitution.
that a State can grant to its own citizens or 2. The people of a State retain forever in their
residents that it may and does legally deny to hands, altogether independent of the
non-residents, or grant to non-residents only on National Government, the power of altering
more difficult terms than those imposed their Constitution.
nonresidents. These advantages, given to the To put it again in the words of Bryce: "A State
citizen in his own State, constitute the special (in America) exists as a commonwealth by
rights of State citizenship. Taken all together, virtue of its own Constitution, and all State
they amount to a considerable difference in Authorities, legislative, executive and judicial
rights between citizens and non-citizens of the are the creatures of and subject to the
State. The transient and the temporary sojourner Constitution."
is everywhere under some special handicaps. This is not true of the proposed Indian
The proposed Indian Constitution is a Constitution. No States (at any rate those in Part
dual polity withal single citizenship. There is I) have a right to frame its own Constitution.
only one citizenship for the whole of India. It is The Constitution of the Union and of the States
Indian citizenship. There is no State citizenship. is a single frame from which neither can get
Every Indian has the same rights of citizenship, outland within which they must work.
no matter in what State he resides. So far I have drawn attention to the
The dual polity of the proposed Indian difference between the American Federation and
Constitution differs the proposed Indian Federation. But there are
From the dual polity of the U.S.A. in some other special features of the proposed
another respect. In the U.S.A. the Constitutions Indian Federation which mark it off not only
of the Federal and the States Governments are from the American Federation but from all other
loosely connected. In describing the relationship Federations. All federal systems including the
between the Federal and State Government in American are placed in a tight mould of
the U.S.A., Bryce has said: "The Central or federalism. No matter what the circumstances, it
national Government and the State Governments cannot change its form and shape. It can never
may be compared to a large building and a set of be unitary. On the other hand the Draft
Constitution can be both unitary as well as

17
federal according to the requirements of time the Federal Government in the field assigned to
and circumstances. In normal times, it is framed the States and vice versa is a breach of the
to work as federal system. But in times of wait is Constitution and (2) such breach is a justiciable
so designed as to make it work as though it was matter to be determinedly the Judiciary only.
unitary system. Once the President issues a This being the nature of federalism, a federal
Proclamation which he is authorized to do under Constitution have been found in a pronounced
the Provisions of Article275, the whole scene forming the Constitution of the United States of
can become transformed and the State becomes America.
a unitary state. The Union under the Countries which have adopted
Proclamation can claim if it wants (1) the power Federalism at a later date have attempted to
to legislate upon any subject even though it may reduce the disadvantagesfollowing from the
be in the State list, (2) the power to give rigidity and legalism which are inherent therein.
directions to the States as to how they should The example of Australia may well be referred
exercise their executive authority in matters to in this matter. The Australian Constitution has
which are within their charge, (3) the power to adopted the following means to make its
vest authority for any purpose in any officer, and federation less rigid:
(4) the power to suspend the financial provisions (1) By conferring upon the Parliament of the
of the Constitution. Such a power of converting Commonwealth large powers of concurrent
itself into a unitary State no federation Legislation and few powers of exclusive
possesses. This is one point of difference Legislation.
between the Federation proposed in the Draft (2) By making some of the Articles of the
Constitution, and all other Federations we know Constitution of a temporary duration to remain
of. in force only "until Parliament otherwise
This is not the only difference between provides."
the proposed Indian Federation and other It is obvious that under the Australian
federations. Federalism is described as a weak if Constitution, the Australian Parliament can do
not an effete form of Government. There are two many things, which are not within the
weaknesses from which Federation is alleged to competence of the American Congress and for
suffer. One is rigidity and the other is legalism. doing which the American Government will
That these faults are inherent in Federalism, have to resort to the Supreme Court and depend
there can be no dispute. A Federal Constitution upon its ability, ingenuity and willingness to
cannot but be a written Constitution and a invent a doctrine to justify it the exercise of
written Constitution must necessarily bee rigid authority.
Constitution. A Federal Constitution means In assuaging the rigor of rigidity and
division of Sovereignty by no less a sanction legalism the Draft Constitution follows the
than that of the law of the Constitution between Australian plan on a far more extensive scale
the Federal Government and the States, with two than has been done in Australia. Like the
necessary consequences (1) that any invasion by Australian Constitution, it has a long list of

18
subjects for concurrent powers of legislation. emergency. Under Article 229 Parliament can
Under the Australian Constitution, concurrent exercise the same power if Provinces consent to
subjects are 39. Under the Draft Constitution such exercise. Though the last provision also
they are 37. Following the Australian exists in the Australian Constitution the first two
Constitution there are as many as six Articles in are a special feature of the Draft Constitution.
the Draft Constitution, where the provisions are The second means adopted to avoid
of a temporary duration and which could be rigidity and legalisms the provision for facility
replaced by Parliament at anytime by provisions with which the Constitution could be amended.
suitable for the occasion. The biggest advance The provisions of the Constitution relating to the
made by the Draft Constitution over the amendment of the Constitution divide the
Australian Constitution is in the matter of Articles of the Constitution into two groups. In
exclusive powers of legislation vested in the one group are placed Articles relating to (a)
Parliament. While the exclusive authority of the the distribution of legislative powers between
Australian Parliament to legislate extends only the Centre and the States, (b) the representation
to about 3 matters, the authority of the Indian of the States in Parliament, and (c) the powers of
Parliament as proposed in the Draft Constitution the Courts. All other Articles are placed in
will extend to 91 matters. In this way the Draft another group. Articles placed in the second
Constitution has secured the greatest possible group cover Avery large part of the Constitution
elasticity in its federalism which is supposed to and can be amended by Parliament by a double
be rigidly nature. majority, namely, a majority of knotless than
It is not enough to say that the Draft two thirds of the members of each House present
Constitution follows the Australian Constitution and voting and by a majority of the total
or follows it on a more extensive scale. What is membership of each House. The amendment of
to be noted is that it has added new ways of these Articles does not require ratification by the
overcoming the rigidity and legalism inherent in States. It is only in those Articles which are
federalism which are special to it and which are placed in group one that an additional safeguard
not to be found elsewhere. of ratification by the States is introduced.
First is the power given to Parliament to One can therefore safely say that the
legislate on exclusively provincial subjects in Indian Federation will not suffer from the faults
normal times? I refer to Articles 226, 227 and of rigidity or legalism. Its distinguishing feature
229. Under Article 226 Parliament can legislate is that it is a flexible federation.
when a subject becomes a matter of national There is another special feature of the
concern as distinguished from purely Provincial proposed Indian Federation which distinguishes
concern, though the subject is in the State list, it from other federations. Federation being a
provided are solution is passed by the Upper dual polity based on divided authority with
Chamber by 2/3rd majority in favour of such separate legislative, executive and judicial
exercise of the power by the Centre. Article 227 powers for each of the two polities is bound to
gives the similar power to Parliament in national produce diversity in laws, in administration and

19
in judicial protection. Upton ascertains point this Supreme Court form one single integrated
diversity does not matter. It may be welcomed as Judiciary having jurisdiction and providing
being an attempt to accommodate the powers of remedies in all cases arising under the
Government to local needs and local constitutional law, the civil law or the criminal
circumstances. But thievery diversity when it law. Thesis done to eliminate all diversity in all
goes beyond a certain point escapable of remedial procedure. Canada is the only country
producing chaos and has produced chaos in which furnishes close parallel. The Australian
many federal States. One has only to imagine system is only an approximation.
twenty different laws-if we have twenty States in Care is taken to eliminate all diversity
the Union-of marriage, of divorce, of inheritance from laws which are at the basis of civic and
of property, family relations, contracts, torts, corporate life. The great Codes of Civil &
crimes, weights and measures, of bills and Criminal Laws, such as the Civil Procedure
cheques, banking and commerce, of procedures Code, Penal Code, the Criminal Procedure Code,
for obtaining justice and in the standards and the Evidence Act, Transfer of Property Act,
methods of administration. Such a state of Laws of Marriage Divorce, and Inheritance, are
affairs not only weakens the State but becomes either placed in the Concurrent List so that the
intolerant to the citizen who moves from State necessary uniformity can always be preserved
testate only to find that what is lawful in one without impairing the federal system.
State is not lawful in another. The Draft The dual polity which is inherent in a
Constitution has sought to forge means and federal systems I said is followed in all
methods whereby India will have Federation and federations by a dual service. In all Federations
at the same time will have uniformity in all basic there is a Federal Civil Service and astute Civil
matters which are essential to maintain the unity Service. The Indian Federation though a Dual
of the country. The means adopted by the Draft Polity will have a Dual Service but with one
Constitution are three exception. It is recognized that in every country
(1) A single judiciary, there are certain posts in its administrative set up
(2) uniformity-in fundamental laws, civil and which might be called strategic from the point of
criminal, and view of maintaining the standard of
(3) A common All-India Civil Service to man administration. It may not be easy to spot such
important posts. posts in large and complicated machinery of
A dual judiciary, a duality of legal codes administration. But there can be no doubt that
and duality of civil services, as I said, are the the standard of administration depends upon the
logical consequences of a dual polity which is caliber of the Civil Servants who are appointed
inherent in federation. In the U. S. A. the Federal to these strategic posts. Fortunately for us we
Judiciary and testate Judiciary are separate and have inherited from the past system of
independent of each other. The Indian administration which is common to the whole of
Federation though a Dual Polity has no Dual the country and we know what these strategic
Judiciary at all. The High Courts and the posts are. The Constitution provides that without

20
depriving the States of their right to form their will agree that the Drafting Committee in
own Civil Services there shall be an All India performing its duty has not been guilty of such
service recruited on anal India basis with blind and slavish imitation as it is represented to
common qualifications, with uniform scale of be.
pay and the members of which alone could be As to the accusation that the Draft
appointed to these strategic posts throughout the Constitution has produced a good part of the
Union. provisions of the Government of India Act,
Such are the special Features of the 1935, I make no apologies. There is nothing to
proposed Federation. I will now turn to what the be ashamed of in borrowing. It involves no
critics have had today about it. plagiarism. Nobody holds any patent rights in
It is said that there is nothing new in the the fundamental ideas of constitution. What I am
Draft Constitution, that about half of it has been sorry about is that the provisions taken from the
copied from the Government of India Act of Government of India Act, 1935, relate mostly to
1935 and that the rest of it has-been borrowed the details of administration. I agree that
from the Constitutions of other countries. Very administrative details should have no place in
little of it can claim originality. the Constitution. I wish very much that the
One likes to ask whether there can be Drafting Committee could see its way to avoid
anything new in constitution framed at this hour their inclusion in the Constitution. But this is to
in the history of the world. More than hundred be said on the necessity which justifies their
years have rolled over when the first written inclusion. Grote, the historian of Greece, has
Constitution was drafted. It has been followed said that:
by many countries reducing their Constitutions "The diffusion of constitutional morality, not
to writing. What the scope of a Constitution merely among the majority of any community
should be has long been settled. Similarly what but throughout the whole, is the indispensable
are the fundamentals of constitution are condition of a government at once free and
recognized all over the world. Given these facts, peaceable; since even any powerful and
all Constitutions in their main provisions must obstinate minority may render the working of a
look similar. The only new things, if there can free institution impracticable, without being
be any, in constitution framed so late in the day strong enough to conquer ascendency for
are the variations made to remove the faults and themselves."
to accommodate it to the needs of the country. By constitutional morality Grote meant
The charge of producing a blind copy of the "a paramount reverence for the forms of the
Constitutions of other countries is based; I am Constitution, enforcing obedience to authority
sure, on an inadequate study of the Constitution. acting under and within these forms yet
I have shown what is new in the Draft combined with the habit of open speech, of
Constitution and I am sure that those who have action subject only to definite legal control, and
studied other Constitutions and who are unrestrained censure of those very authorities as
prepared to consider the matter dispassionately to all their public acts combined too with a

21
perfect confidence in the bosom of every citizen Another criticism against the Draft
amidst the bitterness of party contest that the Constitution is that no part of it represents the
forms of the Constitution will not be less sacred ancient polity of India. It is said that the new
in the eyes of his opponents than in his own." Constitution should have been drafted on the
(Hear, hear.) ancient Hindu model of a State and that instead
While everybody recognizes the of incorporating Western theories the new
necessity of the diffusion of Constitutional Constitution should have been raised and built
morality for the peaceful working of a upon village Panchayats and District
democratic Constitution, there are two things Panchayats. There are others who have taken a
interconnected with it which are not, more extreme view. They do not want any
unfortunately, generally recognized. One is that Central or Provincial Governments. They just
the form of administration has a close want India to contain so many village
connection with the form of the Constitution. Governments. The love of the intellectual
The form of the administration must be Indians for the village community is of course
appropriate to and in the same sense as the form infinite if not pathetic (laughter). It is largely due
of the Constitution. The other is that it is to the fulsome praise bestowed upon it by
perfectly possible to pervert the Constitution, Metcalfe who described them as little republics
without changing its form by merely changing having nearly everything that they want within
the form of the administration and to make it themselves, and almost independent of any
inconsistent and opposed to the spirit of the foreign relations. The existence of these village
Constitution. It follows that it is only where communities each one forming a separate little
people are saturated with Constitutional morality State in itself has according to Metcalfe
such as the one described by Grote the historian contributed more than another cause to the
that one can take the risk of omitting from the preservation of the people of India ,through all
Constitution details of administration and the revolutions and changes which they have
leaving it for the Legislature suffered, and is in a high degree conducive to
To prescribe them. The question is, can their happiness and to the enjoyment of a great
we presume such a diffusion of Constitutional portion of the freedom and independence. No
morality? Constitutional morality is not a natural doubt the village communities have lasted where
sentiment. It has to be cultivated. We must nothing else lasts. But those who take pride in
realize that our people have yet to learn it. the village communities do not care to consider
Democracy in India is only a top-dressing on an what little part they have played in the affairs
Indian soil, which is essentially undemocratic. and the destiny of the country; and why? Their
In these circumstances it is wiser not to part in the destiny of the country has been well
trust the Legislature to prescribe forms of described by Metcalfe himself who says:
administration. This is the justification for "Dynasty after dynasty tumbles down.
incorporating them in the Constitution. Revolution succeeds to revolution. Hondo,
Padhan, Mogul, Mahasabha, Sikh, English are

22
all masters in turn but the village communities establishes, indeed, a system of government
remain the same. In times of trouble they which is at the most quasi-federal, almost
Armand fortify themselves. A hostile army devolutionary in character; a unitary State with
passes through the country. The village
subsidiary federal features rather than a federal
communities collect their little cattle within their
State with unitary features.” Hence, it is true to
walls, and let the enemy pass unprovoked."
Such is the part the village communities say that Indian Constitution establishes a system
have played in the history of their country. of government which is only ‘federal in form but
Knowing this, what pride canone feel in them? unitary in spirit’. Here, the Centre has been
That they have survived through all vicissitudes made strong at the cost of the States.
may be a fact. But mere survival has no value.
Having said this all, it must be noted
The question is on what plane they have
that whatever the structure of the Constitution
survived. Surely on a low, on a selfish level. I
hold that these village republics have been the and resultant government is – federal, quasi-
ruination of India. I am therefore surprised that federal or unitary – it’s real nature depends on
those who condemn Provincialism and the spirit of functionaries occupying the
communalism should come forward as government. They can run it in the spirit of ‘co-
champions of the village. What is the village but operative federalism’ or ‘unitary centralism’.
a sink of localism, a den of ignorance, narrow-
The beauty of the Indian Constitution is that it
mindedness and communalism? I am glad that
has been made relatively flexible so as to
the Draft Constitution has discarded the village
and adopted the individual as its unit. showcase its federal or unitary face in
accordance with the socio-political situations in
Thus, if we see, our Constitution the country. Dr Ambedkar, one of the architects
establishes a federal State in terms of structure of the Indian Constitution, rightly remarked,
of governments, but it adorns a unitary character “Our Constitution would be both unitary as well
in terms of functions. This is particularly true in as federal according to the requirements of time
times of emergencies when all the powers are and circumstances.”
concentrated in the hands of Centre, as well as The aforementioned provisions in the
for the nature of legislative powers, Constitution are aimed at establishing a working
administrative and financial control of Centre balance between the requirements of national
over the States. Thus, it is quite obvious that the unity and autonomy of the States. The federal
Indian Constitution is more unitary than federal Constitutions of the USA and Australia, which
in nature. are placed in a tight mould of federalism, cannot
It is for this reason that Dr. K. C. change their form. They can never be unitary as
Wheare said: “The Indian Constitution per the provisions of their constitution. But, the

23
Indian Constitution is a flexible form of
federation – a federation of its own kind. It is a
federation sui generis.
The dominance of a single party both at
the Centre and in the States till the 6th General
elections had contributed further to the
centralized structure of government in India. The
Central government treated the State
governments in those years as their subordinates.
The financial strength of the Centre vis-à-vis
states has kept it powerful all along. With every
passing five year term the Planning Commission
in India has also been emerging as stronger
instrument for extending the sphere of influence
of the Union government over the States. The
situation has changed in the coalition era in the
last twenty years or so and the regional parties
are becoming strong. These regional parties are
bargaining hard with the Centre in order to
promote their local interests. With the rise of
regional parties India now seems to be moving
towards ‘bargaining federalism’.

24
 MODULE - 02
STRUCTURE POWERS AND FUNCTIONS UNION AND STATE EXECUTIVE

Our Constitution-makers chose for us Article 52 of the Constitution says that

the system of parliamentary democracy with there shall be a President of India. The position
ministerial responsibility to the representatives of the President in the scheme of our
of the people in the Lok Sabha. Under the Constitution is one of the highest honour,
British system, the head of the State is the dignity and prestige. He is the Head of the State
hereditary monarch. But, as the relationship and it would be very wrong to say that he is only
between the King and the Parliament has a nominal or titular head. As Nehru said in the
evolved over the centuries, real political and Constituent Assembly, it was not intended to
executive power has come to be vested in the make the President of India a mere figurehead.
Cabinet while the King has become a All executive power of the Union is vested in
constitutional, nominal or ceremonial head only. him and is to be exercised by him either directly
We, in India, do not have a monarchy. Also, we or through officers subordinate to him in
are not a small unitary State like the United accordance with the Constitution, 'Officers
Kingdom (U.K.). We are a large republic and a subordinate' are supposed to include Ministers.4
Union of States like the United States with an All executive action of the Government of India
elected President at the head of the Republic. is taken in his name. The Supreme Command of
We are thus in the unique position of being at the Defence Forces is vested in him and is to be
once a parliamentary polity and a Republic with exercised in accordance with law (Articles 53
a President. and 77).
Under Article 73 of the Constitution, the The President appoints the Prime
executive power of the Union extends to all Minister and on his advice other Ministers. All
matters with respect to which Parliament may the Ministers hold office during the pleasure of
make laws and to the exercise of all powers that the President (Article 75).
accrue to the Government of India from any Along with the two Houses of
international treaty or agreement. It is important Parliament, the President is an integral part of
to remember that all executive power has t9 be Parliament. He summons the two Houses to
exercised in accordance with the Constitution. meet, prorogues their sittings, and may dissolve
THE PRESIDENT the Lok Sabha (Article 85). He addresses the
Position and Powers of the President
44
. Emperor V. Srinath, AIR 1945 PC 163

25
members of the two Houses assembled together There are certain other functions which the
at the beginning of the first session each year President is required to perform under the
and after each General Election. The President Constitution in relation to Parliament. He
may also, otherwise, send messages to Houses of appoints the Speaker pro tern of Lok Sabha and
Parliament or address either or both of them. All an acting Chairman of Rajya Sabha as and when
Bills after being passed by the two Houses of the need arises. He summons the joint sitting of
Parliament must receive the assent of the both Houses in case of final disagreement
President in order to become laws. Bills between them on a Bill. The President causes to
belonging to certain categories (e.g. money bills) be laid, every year, before Parliament, the
can be introduced and proceeded with only with Budget of the government, referred to in the
the President's recommendation (Articles 79/ 85- Constitution as the II annual financial statement"
87, 111 and 117). When during the Ninth Lok and certain other reports of constitutional
Sabha an amendment proposing pension to functionaries like the Comptroller and Auditor-
members of Parliament after only a year's General of India, Finance Commission, Union
service was allowed to be introduced and passed Public Service Commission, National
without President's recommendation, President Commission for Scheduled Castes, National
Venkataraman did not give his assent to the Bill. Commission for Scheduled Tribes and
When both Houses of Parliament are not Backward Classes Commission. He may
in session and the President is satisfied about the nominate not more than two members of the
need for immediate action, he can promulgate Anglo-Indian Community to Lok Sabha, if he is
ordinances which have the same force and effect of the opinion that the community is not
as laws passed by Parliament (Article 123). adequately represented in the House. The
These are in the nature of interim or temporary President also nominates 12 members to the
legislation. For, their continuance is subject to Rajya Sabha from amongst persons having
parliamentary approval and enactment of laws to special knowledge or practical experience in
replace the ordinances. The President's power to respect of such matters as literature, science, art
issue ordinances extends to only those matters in and social service. Besides, he is empowered to
which Parliament can make laws. The Supreme decide, after obtaining the opinion of the
Court has upheld the legitimacy and validity of Election Commission, whether any member duly
the President's power to issue ordinances.5 elected attracts the disqualifications laid down in
Article 102 of the Constitution. His decision in

5
the matter is final.
. A.K. Roy v. Union of India, AIR 1982 SC 710;
R.K. Garg v. Union of India, AIR 1981 SC 2139

26
 All the high functionaries of the State developed after the passing of the sentence, and
including the judges of the Supreme Court and (v) other special features.
of the High Courts, the Attorney-General of The President cannot be compelled to
India, the Comptroller and Auditor General of give a hearing to a petitioner. The courts cannot
India, the Governors etc. are appointed by the interfere with the decisions of the President on
President (Articles 76, 124, 148, 155 and 217). merits, but they can look into whether the
Under Article 72, the President has the power to President has considered all relevant materials.6
grant pardons, reprieves, respites or remissions Since in the exercise of all his functions,
of punishment or to suspend, remit or commute the President has to act in accordance with the
the sentence of any person ill / all cases where advice of the Council of Ministers (Article 74),
the punishment has been awarded by a Court in the exercise of function of granting pardons
Martial, is for an offence against a Union law, or etc. also, the President is taken to be acting only
is a sentence of death. The power of the on the advice of the Council of Ministers.
President under Article 72 is independent of the Under Article 352, the President may
judiciary. He does not function as a court of proclaim a state of emergency in the whole or
appeal. The idea is to enable correction of any part of India if he is satisfied that a grave
judicial error. Also, the President may decide to situation exists whereby the security of India or
give relief from what may appear to him to be part of its territory is threatened by war or
too harsh a punishment. Justifying the vesting of external aggression of armed rebellion. Under
this power in the President, the Law Article 354, the President may restrict or
Commission in its 1967 Report on capital prohibit the distribution of revenues. When a
punishment said: proclamation of emergency is in operation, the
There are many matters which may not President may suspend the enforcement of
have been considered by the courts. The hands fundamental rights (Article 359). Under Article
of the court are tied down by the evidence 356, in case of failure of constitutional
placed before it. A sentence of death passed by a machinery in any State, the President may
Court after consideration of all the materials impose by proclamation President's rule in that
placed before it may yet require reconsideration State. Article 360 empowers the President to
because of: (i) facts not placed before the court, 6
. Hukam Singh v. State of Punjab, AIR 1975 P&H
(ii) facts placed before the court but not in the 902; Harbans v. State of U.P., AIR 1982 S.c. 849;
Kuljit v. Lt. Governor, AIR 1982 S.c. 774; Maru
proper manner, (iii) acts discovered after the v. Union of India, AIR 1980 S.c. 2147; Godse v.
passing of the sentence, (iv) events which have State of Maharastra, AIR 1961 SC 600; Nanavati
v. State of Bombay, AIR 1961 S.c. 122; State of
Punjab v. Joginder Singh, (1990) GLJ 1464 (SC)

27
declare financial emergency. Thus, the of the Council of Ministers in the discharge of
emergency powers of the President are drastic all his functions. This follows also from our
and far-reaching. adoption of the parliamentary form of
To sum up, the President has (1) Government with ministerial responsibility. The
executive powers to be exercised by him directly Supreme Court through various decisions has
or through officers; (2) powers to appoint high upheld the position that the President is a
functionaries of the State including judges of the constitutional head who must act on the advice
Supreme Court and High Courts; (3) military of the Council of Ministers and that the real
powers as the Supreme Commander of the executive power in our system vests in the
armed forces with the authority to declare war Council of Ministers. 8 Also, the Constitution
and peace; (4) power to grant pardon, reprieve does not make any distinction between normal
etc.; (5) diplomatic powers including times and Emergency in the matter of the
appointment of ambassadors and receiving the exercise of President's powers. There is no
credentials of foreign diplomatic representatives; special provision for any discretionary exercise
(6) legislative powers including powers to of powers during the Emergency. Article 74
summon and prorogue Houses and dissolve Lok governs exercise of all powers by the President
Sabha, assent to Bills etc. and issue ordinances and as such the President is as much bound by
having the force of law; (7) Emergency powers. the advice of Council of Ministers during
Despite all this array of impressive Emergency as during normal times. By the 44th
powers, our President's position is conceived as constitutional amendment, the position was
that of a constitutional head of State. It has to be finally put beyond all doubt and it was made
remembered that Article 53 makes it clear that clear that Emergency can be declared by the
the executive power of the Union has to be President only after receiving in writing a
exercised by the President "in accordance with communication regarding the Union Cabinet
the Constitution" and the exercise of the powers deciding to advise him to do so.
of the President a8 the Supreme Commander of Even though the Constitution makes it
7
the armed forces has to be "regulated by law". obligatory for the President to act on advice of
Also, under Article 60, the President takes an the Council of Ministers, there are some grey
oath "to preserve, protect and defend the
Constitution and the law". Article 74(1) requires
8
. Samsher Singh v. State of Punjab, AIR 1974 SC
the President to act only with the aid and advice 2192; U.N. Rao v. Indira Gandhi, AIR 1971 SC
1002; Mis Bishamber Dayal Chandra Mohan v.
7
. U.N. Rao v. Indira Gandhi, AIR 1971 SC 1002; Stqte of U.P. AIR 1982 SC 33; Ram Jawaya v.
Sanjeev v. State of Madras, AIR 1970 SC 1102. State of Punjab, AIR 1955 SC 544

28
areas where the President may still have to use Sekhar came to be appointed to the office of
his own judgment and wisdom. These are: Prime Minister.
1. Appointment of the Prime Minister (Article A question was raised whether a person
75(1)) n a situation where no single party or who was not a member of either house of
coalition commands the clear support of the Parliament could be appointed Prime Minister. It
majority of the Lok Sabha members. was held that under Article 75(5), such a person
Obviously, the President cannot appoint the could be a Minister for six months and since the
new Prime Minister on the advice of the Prime Minister was also a Minister he could be
outgoing Prime Minister who may have lost appointed from among non-members if he had
the election or the support of the House. the confidence of the House.9
2. Appointment of a Prime Minister in case of Besides, Article 78(a) casts on the Prime
sudden death (for example, by assassination Minister the responsibility to keep the President
as in the case of Indira Gandhi) of the informed of all decisions relating to the
incumbent, where the ruling legislature party administration of the affairs of the Union and
is unable to meet immediately to elect a proposals for legislation and to furnish the
leader, there is no settled seniority among information asked for by the President in that
Cabinet ministers and a name from outside regard. If a decision has been taken by a
the Cabinet is suggested. Minister, the President may require that it be
3. Dissolution of Lok Sabha (Article referred to the Council of Ministers for
85(2)(b))on the advice of a Council of consideration. Also, under the Proviso to Article
Ministers that may have lost the majority 74 inserted in 1978 by the 44th Amendment, the
support in Lok Sabha or against whom a President may require the Council of Ministers
vote of no confidence may have been to reconsider their advice. He shall, of course,
passed. act on the reconsidered advice. But according to
4. Dismissal of Ministers (Article 75(2))in case Article 74 (2), the question whether any, and if
the Council of Ministers loses the so what advice was tendered by the Ministers to
confidence of the House but refuses to the President is confidential between them and
resign. cannot be inquired into in any court of law. Of
In some such situations, the role of the course, the Government itself is not barred from
President may become most crucial and producing on its own any papers relating to the
decisive. This happened, for instance, when cabinet decisions and advice to the President and
Charan Singh, Rajiv Gandhi and Chandra 9
. S.P. Anand v. H.D. Deve Gowda, AIR 1997 SC
272

29
the Court can then look into them. 10 It is true Bill and the Bill seeking inter alia to provide to
that in Kartar Singh's case, the Supreme Court Members of Parliament pension after merely one
had held that the Court was within its rights to year's service.
look into the basis of the advice tendered by the Twice during his tenure, President
Council of Ministers to the President. But, in Narayanan was reported to have returned for
view of the very clear words of Article 74(2), reconsideration to his Council of Ministers its
the view in Kartar Singh v. State of Punjab 11 advice regarding imposition of President's rule
may not be fully correct and may need review. in U.P. and Bihar. The 'satisfaction' stipulated
When a Bill is presented to the President under Article 356 is of one single authority, that
for his assent under Article 111, he may declare of the President acting on the advice of the
that he assents to the Bill or withholds assent. Council of Ministers or, in other words, that of
There is no time limit prescribed for the the Union Government. It may be debatable
President giving his assent or declaring his whether in view of Article 74(2), what transpires
decision to withhold it. But the President may, between the President and his Ministers should
as soon as possible, also return the Bill, if it is become matters of public debate and
not a money Bill, for reconsideration to the controversy in the media.
Houses of Parliament. When after Election of the President
reconsideration, the Bill is passed, with or When the question of the method of the
without amendments, and is presented to the election of the President came up for
President again he shall not withhold his assent. consideration before the Constituent Assembly,
Inasmuch as giving assent to Bills is one one of the suggestions made was that he should
of the functions of the President to be discharged be elected directly by the people under universal
on the advice of the Council of Ministers, it is adult franchise. On the other extreme was a
open to him to seek clarificatory information suggestion that members of the two houses of
from the Prime Minister under Article 78(b) or Parliament alone may elect the President. The
to send a Bill back to the Government for Constituent Assembly devised a unique
reconsideration under Proviso to Article 74(1). mechanism which represented q middle course.
Presumably this is what was done by the Since the membership in the two houses
President in the case of the controversial Postal of Parliament was likely to be dominated by one
party, election of the President merely by a
10
. State of M.P. v. Nandlal, AIR 1987 SC 251; S.P.
Gupta v. Union of India, AIR 1982 SC 149; State majority of members of the Union Parliament
of Rajasthan v. Union of India, AIR 1977 SC could make him a nominee of the ruling party
1361
11
. JT (1994) 2 SC 423 like the Prime Minister and such a President

30
could not represent the constituent States of the Radhakrishnan and Dr. Zakir Husain contested
Union. On the other hand, if the President was the election to the office of the President of India
elected directly by the people, he could become in 1962 and 1967, respectively, without
a rival centre of power to the Council of resigning from the office of Vice President of
Ministers which would have been against the India. However, notwithstanding the constitu-
parliamentary system with ministerial tional provisions, Shri V.V. Giri, who was then
responsibility. As Nehru said in the Constituent the Vice President and Dr. N. Sanjiva Reddy,
Assembly, we could not have a directly elected who was the Speaker of Lok Sabha, resigned
President and not give him "real powers". their respective offices before filing their
Like the President of the United States, nomination papers for election to the office of
our President is also elected by an electoral President in 1969. Dr. N. Sanjiva Reddy again
college. But, here the Electoral College consists resigned from the office of Speaker in 1977
of the elected members of the two Houses of before a nomination proposing him as a
Parliament and Legislative Assemblies of the candidate for the office of President was filed.
States (Article 54). The thinking in the Vice-President, Shri R. Venkataraman and Vice-
Constituent Assembly was that such an electoral President, Dr. S.D. Sharma, who contested and
college would make the President the elected won the Presidential Election in 1987 and 1992
representative of the whole nation with a clear respectively did not resign from the office of
voice given to the States as well. Vice President till they assumed the office of
Article 58 of the Constitution lays down President of India.
that no person shall be eligible for election as The Election Statute
President unless he (a) is a citizen of India; (b) The Presidential and Vice Presidential
has completed the age of thirty five years; and Elections Act, 1952 and the Rules framed there
(c) is qualified for election as a member of the under regulate all matters relating to or
House of the People. A person shall not be connected with the election to the offices of the
eligible for election as President if he holds any President and the Vice President of India. The
office of profit under the Government of India or Act of 1952 was amended in 1974 and 1997 to
the Government of any State or under any local make certain changes therein in the light of the
or other authority subject to the control of any of experience gained during the elections held
the said Governments. But a person shall not be earlier. Similarly, the Presidential and Vice-
deemed to hold any office of profit by reason Presidential Election Rules 1952, were also
only that he is President or Vice-President of the revised. The main requirements of the Act are:
Union or the Governor of any State. Dr. S.

31
1. A nomination paper for election to the office entitled to cast at such election shall be
of President of India should be completed in determined in the following manner:
the prescribed form, subscribed by the a. Every elected member of the Legislative
candidate as assenting to the nomination and Assembly of a State shall have as many
also by at least fifty electors as proposers votes as there are multiples of one thousand
and at least fifty electors as seconders. in the quotient obtained by dividing the
Before 1997, the number of proposers and population of the State by the total number
seconders required was only ten each. The of elected members of the Assembly;
requirement was held to be in order because b. If, after taking the said multiples of one
Article 58 provided only the qualifications thousand, the remainder is not less than five
for eligibility and not the requirements for a hundred, then the vote of each member
12
valid nomination ; referred to in (a) above shall be further
2. Each nomination paper should be increased by one.
accompanied by a certified copy of the entry Illustration
relating to the candidate in the electoral roll Total population of
for the Parliamentary constituency in which a State 43,502,708
the candidate is registered as an elector. Total No. of elected
Article 55 provides that, as far as Members in the Assembly 294
practicable, there shall be uniformity in the scale No. of votes for each
of representation of the different States at the [Value of each vote]
election of the President; the election shall be = 43,502,708 / 1000 x 294
held in accordance with the system of = 147.96 or 148
proportional representation by means of the c. Each elected member of either House of
single transferable vote and the voting shall be Parliament shall have such number of votes
by secret ballot. The Article also provides that as may be obtained by dividing the total
for the purpose of securing uniformity among number of votes assigned to the members of
the States inter se as well as parity between the the Legislative, Assemblies of the States
States as a whole and the Union, the number of under (a) and (b) above by the total number
votes which each elected member of Parliament of elected members of both Houses of
and of the Legislative Assembly of each State is Parliament, fractions exceeding one half
being counted as one and other fractions

12
being disregarded.
. Charan Lal Sahu v. Neelam Sanjeeva Reddy, AIR
1978 SC 499

32
 The total number of members in the broadly to provide representation on the basis of
Electoral College for a Presidential election, for population and to respect the one man one vote
example, was 4,848 as detailed below: principle and the concepts of one Indian
Rajya Sabha 233 Citizenship and equality among all citizens.
Lok Sabha 543 Explanation to Article 55 clarifies that
State Assemblies 4072 the reference to population in that Article means
Total 4848 the population ascertained at the last preceding
The value of the vote of each Member census but that until the figures of a census after
of Parliament (both Rajya Sabha and Lok Sabha) the year 2026 become available, the reference to
is arrived at by dividing the total value of all the last preceding census would mean the 1971
votes assigned to elected members of Legislative census. The 84th Constitution Amendment
Assemblies (5,49,511) by the total number of the substituted the year 2026 for the year 2000 so
elected members of the two houses of that population continues to mean the population
Parliament (776). The value of the vote of each as in 1971.
member of Parliament thus came to 708. The The system of proportional
value of the vote of each member of the State representation by single transferable vote for the
Legislative Assembly differed from State to Presidential election was adopted presumably
State depending on the strength of the Assembly and simply because it was believed to give
and the population of the State as per the 1971 representation to minorities. There was hardly
census. The lowest value for a State was 7 and any discussion on the point in the Constituent
the highest 208. Assembly. The proposal was just accepted. The
The method of providing parity between system is hardly very relevant in a single
the States as a whole on the one hand and the member constituency situation. The system is
Union on the other meant that the whole process useful only when there are more than one seat to
was weighted in favour of the representatives of be filled by the same electorate at the same poll.
the States. They got double representation-first In fact to call the present system proportional
as members of the Council of States and representation by single transferable vote is a
secondly as members of the State Assemblies. misnomer. It could better be called a system of
This was done deliberately to make the office of alternate vote because it does in practice operate
President command unquestioning support from as such.
the entire country and the constituent States. The There have been 14 Presidential
idea of providing uniformity in the scale of Elections so far. The only person to be elected
representation of different States inter se was without a contest was Dr. Sanjiva Reddy in

33
1977. The most hotly contested election was that simply on the ground of there being any vacancy
of Shri V. V. Giri when second preference votes among the members of the Electoral College.
had to be counted. The only person to be elected A person who is neither a candidate nor
to the office of President for two terms was Dr. an elector cannot file a suit challenging the
Rajendra Prasad. validity of the election of the President.13
The election which was politically most In the Presidential Election case, on a
interesting and caused the greatest anxiety in reference made by the President under Article
political circles was that of 1987 when besides 143(1) the Supreme Court held that election to
Shri R. Venkataraman and Justice Krishna Iyer, the office of the President cannot be postponed
there was a third valid candidate. or invalidated on the ground that the electoral
One of the most noteworthy things college was incomplete or not fully constituted
during Presidential Elections till recently was because of some State Assembly having been
that most often many nominations were filed. dissolved.14 It must be held before the expiry of
Although most of these were non-serious the term of the incumbent President.
candidates and their nominations on scrutiny Conditions of President's office
were found to be invalid, this did make the point Article 59 of the Constitution lays down
very loudly that in our democracy any citizen the conditions of the President's office. The
without any distinction could aspire to occupy President shall not be a member of any house of
the highest office. Before the 1997 Presidential Union or State Legislature. He shall not hold any
election, an effort was made to curb the number office of Profit. He shall be entitled to the free
of non serious candidates by increasing the use of his official residences and such
required number of proposers and seconders emoluments, allowances and privileges as may
from ten each to fifty each and the amount of be determined by Parliament by law.
security deposit from Rs.2500 to Rs.15000. Ex-Presidents draw a pension, get a staff
Election Disputes: Article 71 of the car, secretarial staff, free travel by highest class
Constitution. lays down that all doubts and by air, free telephone, water and electricity, rent
disputes relating to or connected with the free furnished accommodation etc. provision has
Presidential and Vice-Presidential elections shall also been made for family pension, free
be enquired into and decided by the Supreme residence and Medicare for the President's
Court whose decision shall be final. spouse.
The election of the President or the
13
Vice-President cannot be called in question . N.B. Khare v. Election Commissioner of India,
AIR 1958 SC 139
14
. (AIR 1974 SC 1682

34
President's Term of Office Precedence is accorded to the Vice President.
Article 62(1) provides that an election to His office, therefore, is highly prestigious.
fill a vacancy caused by the expiration of the Article 63 of the Constitution says that there
term of office of President shall be completed shall be a Vice-President of India. The Vice-
before the expiration of that term. President shall be the ex-officio Chairman of
Article 56(1) provides that the President Rajya Sabha (Article 64). This follows the U.S.
shall hold office for a term of five years from the practice. As the Chairman of Rajya Sabha, he
date on which he enters upon his office. He can presides over the proceedings of the House and
resign his office by writing under his hand functions with reference to all its matters as the
addressed to the Vice-President. The President counterpart of the Speaker in Lok Sabha. But, as
shall, notwithstanding the expiration of his term, the Vice-President as such, no functions have
continue to hold office until his successor enters been assigned to him in the Constitution. By
upon his office. practice, he has come to have several ceremonial
Procedure for Impeachment functions like meeting ambassadors, visiting
Article 61 lays down that the President foreign dignitaries etc. Article 65 lays down that
may be removed from his office by he shall act as the President in the event of a
impeachment on grounds of violation of the vacancy in the office of President by reason of
Constitution. The charge for impeachment may his death, resignation or removal or otherwise.
be preferred in either House of Parliament by a In case the President is unable to discharge his
resolution signed by at least one-fourth of the functions owing to absence, illness or any other
total number of members of the House and cause, the Vice-President shall discharge his
passed by a majority of not less than two-thirds functions. While acting as President or
of the total membership of the House. When a discharging the functions of President, the Vice-
charge is so preferred by one House, it shall be President shall not perform the duties of the
investigated or got investigated by the other office of the Chairman of Rajya Sabha (Article
House and if a resolution is passed by this other 64).
couse by a majority of 2/3rd of its total It has been proved on many occasions,
membership, the President shall stand removed e.g. when two of our Presidents-Dr. Zakir
from his office from the date of the passing of Husain and Fakhruddin Ali Ahmed-died in
the resolution. office and Vice-Presidents V.V. Giri and B.D.
VICE-PRESIDENT Jatti acted as President that the contingency
Next to the President of India, the functions of the Vice-President are of crucial
highest position in the Official Warrant of importance to the nation.

35
 The Vice-President is elected by an On retirement, the Vice-President gets facilities
electoral college consisting of the members of like free furnished residence, travel, water,
the two houses of Parliament in accordance with electricity, telephone, secretarial and other
the system of proportional representation with facilities besides a monthly pension. Provision
single transferable vote (Article 66). This is has also been made for family pension, free
intended to ensure that he enjoys the confidence residence and Medicare for the spouse of the
of both the houses of Parliament. Vice-President.
The term of the office of the Vice- The emoluments etc. are determined by
President is five years and election to the office Parliament by law from time to time vide Article
has to be completed before the expiration of the 97 of the Constitution.15
term. All doubts and disputes regarding this COUNCIL OF MINISTERS
election shall be enquired into and decided by Article 74 of the Constitution lays down
the Supreme Court. The Vice-President may that there shall be a Council of Ministers with
resign from his office by writing under his hand the Prime Minister at the head to aid and advise
to the President. He may also be removed from the President who shall, in the exercise of his
his office by a resolution passed by a majority of functions, act in accordance with such advice.
all then members of Rajya Sabha and agreed to The President may, however, require the
by Lok Sabha (vrticles 67, 68 and 71). The Vice- Cow1cil of Ministers to reconsider 3uch advice.
President shall not be a member of either house The President shall act on the advice tendered
of Parliament or of a State Legislature (Article after such reconsideration.
66). , That there shall be a Council of
The eligibility conditions for election of Ministers has to be understood to mean that it
a person as Vice President are the same as those shall always be there. The Constitution does not
for election as President except that for the envisage a situation where there will be no
former, the candidate must be qualified for Prime Minister or no Council of Ministers.
election as a member of the Rajya Sabha There is no provision for failure of constitutional
(Article 66). machinery (as under Article 356) and direct
The Vice-President draws a salary as President's rule at the Union level.
Chairman Rajya Sabha. In addition, he is Acceptance by the President of the
entitled to a daily tax free allowance, free advice tendered by the Council of Ministers has
furnished residence, travel, water, electricity,
15
telephone medical and other facilities. . See Vice-Presidential Pension Act, 1997 (as
amended) and officers of Parliament (Salary and
Allowances) Act, 1997 (as amended).

36
become obligatory particularly after the 42nd the court looking at them if these are produced
and 44th Constitutional Amendments. Before by the Government.18
the amendments also the Supreme Court had Under Article 75, the Prime Minister is
taken the view that the advice was binding in all appointed by the President and other Ministers
cases.16 are appointed by him on the advice of the Prime
Even after the dissolution of Lok Sabha, Minister. The Ministers hold office during the
the President, in the exercise of his powers, was pleasure of the President but the Council of
bound by the aid and advice of the Council of Ministers is collectively responsible to Lok
Ministers. It was held by the Supreme Court in Sabha.
U.N. Rao v. Indira Gandhi17 that any exercise of While the President is to be fully guided
powers by the President without the advice of in the discharge of all his functions by the advice
the Council of Ministers shall be of the Council of Ministers with the Prime
unconstitutional as being violative of Article Minister at its head, it is not clear as to on whose
74(1). advice he performs the most crucial function of
However, the acceptance of the advice appointing the Prime Minister. So far as the
of the Council of Ministers by the President is letter of the Constitution goes, the President can
not automatic or mechanical. The President is appoint almost anyone as the Prime Minister but
entitled to consider it by applying his mind. The he has to remember that under the Constitution
44th Amendment allows to the President an the Council of Ministers headed by the Prime
opportunity to advise and caution the Council of Minister has the responsible to the House and
Ministers and seek reconsideration of any matter would have to go if it loses the confidence of the
before the President puts his seal of approval Lok Sabha. The President, therefore would
and accepts the proposed course of action. appoint only a person who, in his best judgment
The decisions of the Cabinet are taken would be acceptable to the House. If a party or a
confidentially and the advice tendered to the pre-election alliance commands absolute
President is also protected by confidentiality majority support in the Lok Sabha, there is no
between the President and the Council of difficulty. For, the President in such cases,
Ministers. As such, these cannot be questioned following well established parliamentary
in a court of law. Of course, there is no bar to practices and conventions, has to invite the

18
. S.P. Gupta v. Union of India, AIR 1982 SC 149;
State of Rajasthan v. Union of India, AIR 1977
SC 1361; State of M.P. v. Nandla!, AIR 1987,
16
. Samsher v. State of Punjab, AIR 1974 SC 2192 SC 251; Chaudhary v. Government of Bihar, AIR
17 1980 SC 383
. AIR 1971 SC 1002

37
Leader of the majority party, front or alliance to unhappy or dissatisfied with any Minister, he
take over as the Prime Minister and form a can advise him to resign, advise the President to
Government. But, where no single party or dismiss him or tender the resignation of his
coalition is in a position to form a Government Council of Ministers and then reconstitute it
on its own, the role of the President in choosing after deleting the name of the Minister in
the Prime Minister becomes most delicate and question.
difficult. He may have to use all his abilities to In the U.K. the concept is that of
decide on the leader most likely to command the individual and collective responsibility of
confidence of Lok Sabha. The golden rule in Ministers. Our Constitution, however, provides
such an eventuality is to call the leader of the only for collective responsibility which means
single largest party or alliance first or seek to be that there can be no no-confidence in a single
satisfied in advance about a leader having the Minister. The entire Council of Ministers is
support of more than half of the members of the jointly responsible to Lok Sabha for all acts of
Lok Sabha. Since in any case, ultimately it is Government. Therefore, it stands or falls
necessary for the Prime Minister to have the together. If it loses the confidence of the House,
confidence of the Lok Sabha and it is his the entire Council of Ministers must resign.
responsibility to find out who can command Also, collective responsibility would mean that
such confidence, the most logical and above the Ministers must not speak in public in
board solution would be that instead of getting different voices. If any Minister disagrees with a
involved in political controversies, appointing decision taken or a policy adopted by the
someone and then asking him to seek a Cabinet, he must either resign or own equal and
confidence vote in the House, the President can joint responsibility.
ask the House to elect its leader who can then be Again, in the U.K., historically the
appointed by the President as the Prime concept of ministerial responsibility was a by-
Minister. This has been recommended by the product or corollary of the doctrine that the King
Constitution Commission (2002) also. can do no wrong. Since the King could not be
While the Ministers are also appointed held responsible for any wrong acts of the State,
by the President and said to hold office during ministers came handy as a peg to hang
the pleasure of the President, in actual effect, it responsibility on. For every act of the State,
means they are selected by the Prime Minister- there was a Minister responsible. Every order of
the President cannot appoint anyone not the Crown for any public act had, therefore, to
recommended by the Prime Minister-and hold be countersigned by a Minister. In India, on the
office at his pleasure. If the Prime Minister is other hand, ministerial responsibility was

38
conceived and evolved on the basis of the consisting of Ministers of Cabinet rank. For all
highest principles of representative democracy, practical purposes, it is the Cabinet which takes
as the responsibility of the Government to the policy decisions and advises the President. The
directly elected representatives of the people in whole Council of Ministers including all
the Lok Sabha. Actually, in India the Ministers categories of Ministers almost never meets to
have no legal accountability for acts of the State transact any business.
which are done in the name of the President and Coalition Government
required to be countersigned by way of For the major part of the last six decades
authentication not by a Minister but by a single party governments have been in power at
Secretary (or other authorized officer) to the the Union level. Several of the States, however
Government in accordance with the n11es made had coalition governments from as far back as
by the President (Article 77). 1967.
The Constitution speaks only of The Constitution has no provision in
Ministers. It does not indicate any classification regard to single party or coalition governments.
or categories of Ministers into Cabinet It only speaks of the Prime Minister/Chief
Ministers, Ministers of State, Deputy Ministers Minister being appointed by the President/
etc. While Prime Minister is mentioned as one Governor and the Council of Ministers being
heading the Council of Ministers (Article 74), responsible to Lok Sabha/State Assembly.
there is no reference made to any Deputy Prime Coalition is the ad hoc coming together
Minister. In K.M. Sharma v. Devilal,19 oath by or entering into an alliance of two or more
Devi Lal as Deputy Prime Minister was separate parties, persons or interests, for a
questioned as being ultra vires the Constitution temporary period and with a specific objective
as the Constitution provided only for the 'Prime of taking combined action like formation of
Minister' and 'Ministers'. The Court upheld the government and carrying on the activities of the
oath as valid but said that 'Deputy Prime State. Coalition arrangements presume that the
Minister' was only a descriptive term and did not parties coming together retain their distinct
confer on him any powers of the Prime Minister. identities but they usually agree on a common
Also, the Constitution mentions only the minimum programme or a national agenda to be
Council of Ministers and makes no reference to followed by their government.
the Cabinet except in Article 352 (as amended in The National Democratic Alliance
1979) where Cabinet is defined as the Council (NDA) government in power at the Union level
during 1999-2004 was a coalition of several
19
. AIR 1990 SC 528 parties functioning on the basis of an agreed

39
national agenda of governance. The United In the words of the Constitution
Progressive Alliance (UPA) government in Commission (NCRWC) Report, the
power since 2004 is also a coalition government. administrative and economic costs of political
Caretaker Government instability and short-lived governments were
At the level of States, if the government 'simply collossal'. During 1989-1999, there were
cannot be carried on in accordance with the five general elections for Lok Sabha-,3 in 4
Constitution, there is provision for President's years (1996-1999). In all these elections, no
rule. But, at the Union level, the Constitution single party emerged with a majority of seats in
envisages that there shall always be a Council of the House. This aroused considerable concern
Ministers to aid and advise the President who about political stability, especially in the context
shall act in accordance with the advice tendered. of the needs of national development efforts and
There is no provision in the Constitution for the far-reaching changes in international
anything like a caretaker government. The term economic and security paradigms. During ten
has come to be used in common parlance to years, there were seven governments. In the
describe the status of a Council of Ministers that situation of a hung house where no single party
has resigned on having lost the confidence of the commanded majority support, India got either
Lok Sabha or otherwise but is asked by the minority governments or governments formed
President to continue till alternative by a workable multi-party alliance. On the
arrangements are made. If an alternative question of stability versus accountability (in
government cannot be formed immediately and parliamentary polity, the Commission said:
general 'elections have to be held, the outgoing Need for political stability has to be seen in two
Council of Ministers may have to hold charge emerging contexts: that in administering any
till the conclusion of elections and formation of economy in the global context, a reasonable
new government. In any case, the presumption is degree of stability of Government and strong
that such an arrangement is for as short a period governance is important. Secondly, the
as absolutely necessary, that elections, if economic and administrative costs of political
necessary, are held at the earliest possible and instability might reach unaffordable levels.
that during the interregnum no new schemes are In a situation where no single political
launched or major policy decisions taken by the party or prepoll alliance of parties succeeds in
Government unless dictated by demands of securing a clear majority in the Lok Sabha after
national security and the like. elections, instead of involving the highest office
Governmental Instability of the President in the controversies of finding
out who could command the confidence of the

40
House, the Commission recommended it would become an enabling law for larger defections.
be best to leave it to the House itself to The Commission recommended that all
determine majority support to a leader. It would defectors-whether individual or in groups-must
remove uncertainty and also obviate the need for resign and contest fresh election. They should be
the President asking his appointee as Prime debarred from holding any public office of a
Minister to seek a vote of confidence within minister or any other remunerative political post
certain number of days. without winning at a fresh election. Also, votes
The Rules of Procedure and Conduct of cast by them to topple a government should be
Business in Lok Sabha could provide for the treated as invalid.
election of the Leader of the House by the Lok The Commission further recommended
Sabha along with the election of the Speaker and that the practice of having oversized Councils of
in like manner. The Leader could then be Ministers must be prohibited by law. A ceiling
appointed as the Prime Minister. The same on the number of Ministers in any State or the
procedure could be followed for the office of the Union government be fixed at the maximum of
Chief Minister in the State concerned. 10% of the total strength of the popular house of
Anti-defection Law the legislature as provided in Article 239AA
The Commission further recommended applicable to Delhi. The practice of creating a
an amendment in the Rules of Procedure of the number of political offices with the position,
Legislatures for adoption of a system of perks and privileges of a minister should be
constructive vote of no-confidence. For a motion discouraged and their number should be limited
of no-confidence to be brought out against a to 2 per cent of the total strength of the lower
government at least 20% of the total number of house.
members of the House should give notice. Also, The Commission added:
the motion should be accompanied by a proposal A law or parliamentary convention to
of alternative Leader to be voted simultaneously. limit the size of the Cabinet is all the more
The Commission felt that instability of desirable at the present juncture in view of a
elected governments was in part attributable to manifest sense of abandonment with which large
unprincipled, opportunistic political size of Cabinets are resorted to. There are also
realignments from time to time and defections other political rewards for the party members
and re-defections. and supporters in the form of chairmanship of
The Anti-Defection Law in the Tenth statutory corporations, usually attached with
Schedule of the Constitution which was status of a Minister of Cabinet rank. The
supposed to prevent defections, in effect, had magnitude of the harm caused to public-interest,

41
to the efficiency of administration and to the Council of Ministers, the Prime Minister is the
exchequer is, indeed, incalculable. This has head of the Government. Also, he is the leader
increasingly become the pervasive political of his party or/and of a coalition of parties in
culture of the day. Parliament and usually the Leader of the popular
The Constitution (Ninety-first House. In the ultimate analysis, however, much
Amendment) Act, 2003 partly accepting the depends on the personality of the Prime Minister
recommendations of the Commission, amended and the level of acceptance and support he
the tenth Schedule of the Constitution to take commands from the nation, his party or alliance
away the protection from defectors on grounds and Parliament. The Prime Minister enjoys large
of split in the party and added a new Article powers of patronage. All the Ministers are
361B to make them ineligible for Ministership appointed at his recommendation and stand
or other remunerative public office till re- dismissed at his demand. The Prime Minister
election. Also, by amending Articles 75 and 164 allots work among the Ministers. Also, he can
the size of Council of Ministers was limited to change their portfolios at will. The Prime
15% of the number of Members in the lower Minister is the channel of communication
House. between the Council of Ministers and the
PRIME MINISTER President.
Duty has been specifically cast on the Questions relating to the relationship
Prime Minister to keep the President informed of between the Prime Minister and the President
all decisions relating to administration and and between the Prime Minister and other
legislation, to furnish such information in these Ministers have been subject matters of
matters as the President may call for and to place controversy right from the commencement of
before the Council of Ministers, if so desired by the Constitution. The perceptions of Sardar Patel
the President, any matter on which a decision as Home Minister and Nehru as the Prime
might have been taken by a Minister (Article Minister varied widely. Similarly, there were
78). fundamental differences between the first
In a parliamentary system of President Dr. Rajendra Prasad and the first
Government, the Prime Minister occupies a Prime Minister Jawaharlal Nehru. Later, despite
unique position as the most powerful all the amendments and judicial clarifications
functionary who controls both the Parliament about the President being only a constitutional
and the Executive. Increasingly parliamentary head, President Zail Singh had come very close
Government has come to be regarded as Prime to taking up cudgels against Prime Minister
ministerial Government. As the head of the Rajiv Gandhi and as much as threatening to

42
dismiss him. More recently, relations between
the holders of the two highest offices have been
cordial.
ATTORNEY-GENERAL OF INDIA
Under the chapter on 'The Executive',
the Constitution includes a provision (Article
76) for the President appointing a person
qualified to be a Supreme Court judge as the
Attorney-General of India to advise the
Government on legal matters qrl9, perform other
duties of a legal nature as may be assigned.
The Attorney-General holds office
during the pleasure of the President. However,
inasmuch as he is appointed on the advice of the
Government, a convention has grown that with a
change of Government, he submits his
resignation.
The Attorney-General is the Chief Law
Officer of the Government. He has the first right
of audience in all courts in India. Also, he has
the right to speak and take part in the
proceedings of either House of Parliament
without a right to vote. He is not' a full-time
officer of the House nor is he a member of the
Cabinet as in U.K. Also, he is not barred from
private practice except that he cannot advise or
hold briefs against the Government of India.

43
 MODULE 03
STRUCTURE, POWERS AND FUNCTIONS OF UNION AND STATE LEGISLATURE

The supreme legislature of the Union of satisfied that circumstances exist which render it
India is called the Parliament. As is natural in a necessary for him to take immediate action, the
system of parliamentary democracy, the President can promulgate Ordinances having the
Parliament of India occupies a place of primacy same force and effect as a law passed by
in the governance of the country. Parliament (Arts. 85, 111 and 123).
Composition of Parliament At the commencement of the first
The Parliament consists of the President session after each general election to Lok Sabha
and the two Houses-the Rajya Sabha (Council of and at the commencement of the first session of
States) and the Lok Sabha (House of the each year, the President addresses both Houses
People). Article 79 begins by saying that there of Parliament assembled together and informs
shall be a Parliament for the Union which means Parliament of the causes of its summons.
that there must always be a Parliament for the Besides, he may address either House of
Union. Of the three constituents of Parliament, Parliament or both Houses assembled together
only the Lok Sabha is subject to dissolution. The and for that purpose require the attendance of·
Rajya Sabha is a permanent or continuing House members. He is also empowered to send
and there must always be a President or a person messages to either House whether with respect
performing the functions of the President. to a Bill then pending in Parliament or
The President: Though the President of India is otherwise, and a House to which any message is
a constituent part of Parliament, he does not sit so sent has to, with all convenient dispatch,
or participate in: the discussions in either of the consider any matter required to be considered by
two Houses. The two Houses are, however, the message (Articles 86 and 87). Bills
summoned by the President to meet from time to belonging to certain categories can be
time. He can prorogue the two Houses and introduced and proceeded with only after the
dissolve the Lok Sabha. Prorogation terminates recommendation of the President has been
the session while dissolution puts an end to the obtained (Articles 117 and 274(1)).
life of the House. The I President's assent is RAJYA SABHA
essential for a Bill passed by both Houses to The Rajya Sabha is, as its name
become law. Not only that, when both the indicates, the Council of States. It represents the
Houses of Parliament are not in session and he is people in an indirect way inasmuch as they are

44
grouped into several components of the Union- Jharkhand - 06
the States and the Union territories-and members Haryana - 05
of Rajya Sabha are elected by the elected Hinnachal - 03
members of the State Legislative Assemblies in J&K - 04
accordance with the system of proportional Karnataka - 12
representation by means of single transferable Kerala - 09
vote (Article 80(4)). The different States of the M. P. - 01
Union have not been given equal representation Maharashtra - 19
in the Rajya Sabha. The number of Manipur - 01
representatives from each State in India depends Meghalaya – 01
largely on its population. Thus, while Uttar Mizorann - 01
Pradesh has 31 members in Rajya Sabha, Nagaland - 01
smaller States like Manipur, Mizoram, Sikkim, Orissa - 10
Tripura, etc. have only one member each. The Punjab - 07
populations in some of the Union territories such Rajasthan - 10
as Andaman and Nicobar Islands, Chandigarh, Sikkim - 01
Dadra and Nagar Haveli, Daman and Diu, and Tannil Nadu - 18
Lakshadweep are too small to have any Tripura - 01
representative in Rajya Sabha. Under the Uttar Pradesh - 31
Constitution, Rajya Sabha consists of not more Uttarakhand - 03
than 250 members. It includes twelve members West Bengal - 16
nominated by the President and 238 members Delhi - 03
elected by the States and the Union territories Puducherry - 01
(Art.80(1)). Nonninated - 12
The Rajya Sabha at present consists of Unlike the Lok Sabha, which has a fixed
245 members as follows: term but can be dissolved by the President at any
Andhra - 18 time, the Rajya Sabha is a permanent body and
Arunachal - 01 is not subject to dissolution. While the term of
Assann - 07 an individual member of Rajya Sabha is six
Bihar - 16 years, as nearly as possible, one-third of its
Goa - 01 members retire at the expiration of every second
Gujarat - 01 year in accordance with the provisions made in
Chhattisgarh - 05 that behalf by Parliament by law (Article 83(1))

45
The Vice-President, who is elected by the Jharkhand - 14
members of both Houses of Parliament, is the Haryana - 10
ex-officio Chairman of Rajya Sabha, whereas Himachal Pradesh - 04
the Deputy Chairman is elected by the members Jammu & Kashmir - 06
of the Rajya Sabha from amongst themselves Kama taka - 28
(Articles 64, 66 and 89). Kerala - 20
LOK SABHA Madhya Pradesh - 29
The other House-the Lok Sabha-is the Maharashtra - 48
House of the People. It is directly elected by the Manipur - 02
people. Every citizen of India who is not less Meghalaya - 02
than 18 years of age is entitled to vote in Mizoram - 01
elections to Lok Sabha unless he is otherwise Nagaland - 01
disqualified under law (Article 326). The Orissa - 21
Constitution provides that the Lok Sabha shall Punjab - 13
consist of not more than 530 members chosen by Rajasthan - 25
direct election from territorial constituencies in Sikkim - 01
the States, and not more than 20 members to Tamil Nadu - 39
represent the Union territories, chosen in such Tripura - 02
manner as Parliament by law provides (Article Uttar Pradesh - 80
81(1)). In addition, the President may· nominate West Bengal - 42
not more than two members to represent the Andaman & Nicobar - 01
Anglo-Indian community (Article 331). The Chandigarh - 01
maximum strength of the House envisaged in the Dadra & Nagar Haveli - 01
Constitution is thus 552. At present, the Lok Daman & Diu - 01
Sabha consists of 545 members as follows: Delhi - 07
Andhra Pradesh - 42 Lakshdweep - 01
Arunachal Pradesh - 02 Puducherry - 01
Assam - 14 Nominated
Uttarakhand - 05 (Anglo-Indian) - 02
Bihar - 40 The total elective membership is
Goa - 02 distributed among the States in such a manner
Gujarat - 26 that the ratio between the number of seats
Chhattisgarh - 11 allotted to each State and the population of the

46
State is, so far as possible, the same for all States 2. The reservation for Lok Sabha seats for the
(Article 81(2)(a)). Population for this purpose Scheduled Castes and Scheduled Tribes has to
means the population as ascertained at the 1971 be made in each state and Union territory on
census. There was to be no change in the population basis. The number of Lok Sabha
number of seats in Lok Sabha until the year seats reserved in a state or Union territory on
2000 (Article 81(3)) The position is now frozen population basis. The number of Lok Sabha
for another 25 years by substituting the figure seats reserved in a state or Union territory for
2026 for the figure 2000 in Articles 55, 81, 82, such castes and tribes is to be bear as nearly as
330 and 332 by the Constitution (Eighty-fourth possible the same proportion in the total number
Amendment) Act 2001 and the Constitution of seats alloted to that State or Union territory in
(Eighty-seventh Amendment) Act, 2003. the Lok Sabha as the population of the
Reservation of seats for SC and ST in the Scheduled Castes and the Scheduled Tribes in
house of the people the State or Union territory bears to the total
The Constitution of India treats the population of that State or Union territory.
Scheduled Castes and Scheduled Tribes in India In V.V. Giri, V.D.S. Dora the Supreme
with special favour and affords them some Court held that a Scheduled Tribe candidate can
safeguards. The Scheduled Castes are the contest an election for both the seats reserved as
depressed section of the Hindus who have well as open. At the same time it was also held
suffered for long under social handicaps and that a non Scheduled Tribe candidate residing in
thus need special protection and help for the a constituency for which there is a reserved seat
amelioration of their social, economic and will be unable to contest for election to that seat.
political condition. The constitution provides It may however be noted that elections are to be
some reservation for the Scheduled Castes and held on the basis of a single electoral roll, and
Scheduled Tribes in the Legislature. each voter in the reserved constituency is
Article 330 of the Constitution lays entitled to vote. There is no separate electorate,
down as follows: e.g. it is not for the Scheduled Castes and
1. Seats shall be reserved in the House of the Scheduled Tribes only to elect their
People for representatives. The system is that though a
(a) the Scheduled Castes person belonging to such castes and tribes is to
(b) the Scheduled Tribes except the Scheduled be elected to voters in the constituency. This has
Tribes in the tribal areas of Assam and the been done with a view to discourage the
Scheduled Tribes in the autonomous districts of sharpening of differentiation between the
Assam. Scheduled Castes and Scheduled Tribes from the

47
other people to lead to their gradual integration the seats for Scheduled Castes in Lok
in the main stream of national life. In 1961, Sabha from 79 to 84 and for Scheduled Tribes
Parliament enacted legislation provided for the from 41 to 47 out of 543 constituencies, as per
division of two members constituency and thus a Delimitation of Parliamentary and Assembly
non Scheduled Caste person will be debarred Constituencies Order, 2008.
from contesting election to a reserved seat even There’s no reservation for Rajya Sabha
though residing in that constituency. It frirther and State Legislative Council. However, 12
held that sec-54 of the Representation of people members are nominated to the Rajya Sabha by
Act is not opposed to Article 330 of the the President and the Governors of the states
Constitution when it is admitted that a having Legislative Councils also nominated
Scheduled Tribe candidate could compete for a members to the respective Councils.
general seat. Also a member of the Scheduled Allocation of seats for Scheduled Castes
Castes or Scheduled Tribes is not debarred from and Scheduled Tribes in the Lok Sabha are made
contesting any seat other than the reserved one. on the basis of proportion of Scheduled Castes
Originally, the reservation was for ten and Scheduled Tribes in the State concerned to
years but it is being extended every time for the that of the total population, provide provision
next ten years (Articles 330 and 334). Recently, contained in Article 330 of the Constitution of
by One Hundred and Twenty-Sixth Amendment, India read with Section 3 of the Representation
2019 reservation of seats for Scheduled Castes of the People Act, 1951.
(SCs) and Scheduled Tribes (STs) and While between 1952 and 2020, two
Representation of the Anglo-Indian community seats were reserved in the Lok Sabha, the lower
by nomination, in Lok Sabha and Legislative house of the Parliament of India, for members of
Assemblies extended for another 10 years till the Anglo-Indian community. These two
January 25, 2030. members were nominated by the President of
The population figure of Scheduled India on the advice of the Government of India.
Castes in percentage terms with reference to the In January 2020, the Anglo-Indian reserved seats
total population figure had increased from in the Parliament and State Legislatures of India
14.6% in 1971 census to 16.2% in 2001 census. were abolished by the 126th Constitutional
Similarly, the population figure of Scheduled Amendment Bill of 2019, when enacted as 104th
Tribes had increased from 6.9% in 1971 census Constitutional Amendment Act.
to 8.2% in 2001 census. The overall increase of The Lok Sabha has been provided with a
population figure of SC and ST in 2001 census fixed term as in the case of the popularly elected
has led the Delimitation Commission to increase House of Representatives in the United States of

48
America and the House of Commons in the Disqualifications for Membership
United Kingdom. The raison d'etre of Under Article 102, a person shall be
representative democracy is that the government disqualified for being chosen as and for being a
should obtain the mandate of the people member of either House (i) if he is not a citizen
periodically in order to continue in office of India or otherwise owes allegiance to a
legitimately. The term of the House in India is foreign State, (ii) if he is an undischarged
five years from the date appointed for its first insolvent or one declared by a competent court
meeting. The expiration of the period of five to be of unsound mind, (iii) if he holds any
years operates as its dissolution. The House may office of profit under the Union or a State
be dissolved before the expiration of its full term Government other than the office of Minister or
under certain circumstances. When a any office exempted by Parliament by law, and
Proclamation of Emergency is in force, the term (iv) if he is otherwise disqualified under any law
of Lok Sabha can be extended by Parliament for made by Parliament.
a period not exceeding one year at a time and Also, a person may be disqualified on
not exceeding in any case a period of six months grounds of defection under the Tenth Schedule
after the Proclamation has ceased to operate which was added to the Constitution by the 52nd
(Art.83). In fact, right from the First Lok Sabha, Amendment.
strictly viewed, every House has been dissolved If any question arises whether a member
before completing its full term. Once, when of either House has become subject to any
during the Emergency, its life was extended, the disqualification, it shall be decided by the
House was dissolved before the completion of President after obtaining the opinion of the
the extended term. Election Commission and in accordance with
MEMBERS OF PARLIAMENT that opinion. In case of disqualification on
Qualification for Membership grounds of defection, the matter will be decided
Article 84 lays down the qualifications by the Speaker Lok Sabha or Chairman Rajya
for membership of the two Houses of Sabha as the case may be.
Parliament. In order to be eligible to be chosen The job of Parliament and its Members
as a member, a person must He a citizen of India is to represent the people, to lay down policies,
and not less than 30 years of age in case of to make laws and to exercise surveillance over
Rajya Sabha membership and not less than 25 executive action. With the exception of
years of age in case of Lok Sabha membership. Members who become Ministers, other
Additional qualifications may be prescribed by Members are not expected to exercise any
law. executive powers by accepting any office of

49
profit under the Government. If those charged gave his assent after a few days and not before
with the responsibility of overseeing the the Government announced the appointment of a
executive, themselves become part of the Committee to consider the issues raised by the
executive establishment or become beholden to President.
the executive for an office of profit under the Constitutional provisions for State
Government, obviously they cannot be expected Legislatures corresponding to Articles 102 and
to faithfully perform any worthwhile oversight 103 are Articles 191 and 192.
functions. That is why, Article 102 of the Oath by Members
Constitution provides that apart from certain The first sitting of the first session of the
other things, holding an office of profit under the Lok Sabha after a general election is devoted to
Government would constitute a disqualification members making and subscribing the prescribed
for membership of Parliament. Giving a oath or affirmation to "bear true faith and
somewhat arbitrary power to the allegiance to the Constitution of India" and to
Parliament/State Legislatures, it is provided that "uphold the sovereignty and integrity of India"
any offices can be exempted from and to faithfully discharge the duty of a Member
disqualification. of Parliament. The oath/ affirmation is a
A Member was divested of her Rajya prerequisite for every member taking his seat in
Sabha Membership in March 2006 by the either House (Article 99 and 3rd Schedule).
President on the advice of the Election Salary and Allowances: Members of both the
Commission as per Article 103 of the Houses are entitled to salaries and allowances as
Constitution. Several other cases were also may be determined by Parliament by law from
reported to be pending when the two Houses of time to time (Article 106). It would be seen that
Parliament passed a Bill to retrospectively there is no separate mention of pensions in the
prevent the disqualification of a large number of provision. Parliament has, however sanctioned
Members who were alleged to be occupying to Members a pension under the Members of
high offices of profit under the Government. Parliament (Salaries, Allowances and Pension)
These included the Speaker Lok Sabha, Shri Act. A Bill passed by the two Houses during the
Som Nath Chatterjee and Leader of the United ninth Lok Sabha period inter alia provided for a
Progressive Alliance, Smt. Sonia Gandhi. The pension after only a year's service as a member.
President, however returned the Bill to the This, however, was not assented to by the
Houses of Parliament for reconsideration. When President.
the Bill, after reconsideration was again
presented to the President under Article 111, he

50
Officers of the Houses The Constitution gives the Speaker a
The Constitution provides for a Speaker special position in so far as relations between the
and a Deputy Speaker for the Lok Sabha and a two Houses in certain matters are concerned. He
Chairman and a Deputy Chairman for the Rajya determines what matters are financial matters
Sabha. The Vice-President of India is the ex- which fall within the exclusive jurisdiction of
officio Chairman of Rajya Sabha. A Deputy Lok Sabha. If he certifies a Bill to be a 'Money
Chairman is chosen by the House from among Bill', his decision is final (Article 110).
its own members. The Speaker and the Deputy Whenever, in the event of final disagreement
Speaker are chosen by the Lok Sabha . from between the Houses on a legislative measure a
among its members. In the absence of the joint sitting is called, he presides over such a
Speaker in the House, the Deputy Speaker joint sitting and all the Rules of Procedure in
discharges the functions of the Speaker. such a sitting operate under his directions and
Similarly, in the absence of the Chairman, the orders (Articles 108 and 118(4)).
Deputy Chairman presides over the Rajya The Speaker or Deputy Speaker of Lok
Sabha. While so presiding, the Deputy Presiding Sabha vacates his office if he ceases to be a
Officer in either case exercises all the powers of member of the House, he can resign by writing
the Presiding Officer in the House. (Articles 64, to the Deputy Speaker/Speaker and he can be
89, 91 and 93- 95). removed by a resolution of the House, with 14
Generally speaking, the position of the days' notice, passed by a majority of all the then
Speaker in India more or less corresponds to that members of the House (Article 94). A similar
of the Speaker of the House of Commons. His provision exists for the Deputy .Chairman Rajya
office is one of prestige, splendor and authority. Sabha in Article 90. Irrespective of the
He is the head of Lok Sabha. The smooth and dissolution of the House, the Speaker, however,
orderly conduct of the business of the House is continues in office until immediately before the
primarily his responsibility. Within the House first sitting of the new House (Article 94,
and in all matters connected with the House, his proviso 2).
word is final. His salary and allowances are SESSIONS OF PARLIAMENT
charged on the Consolidated Fund of India that It is for the President to summon each
is, they do not have to be voted by Parliament. House of Parliament from time to time. But
His conduct cannot be discussed except on a Article 85(1) provides that six months must not
substantive motion. He does not vote in the intervene between two sessions of the House.
House except when there is an equality of votes Normally there are three sessions of Parliament
(Articles 94, 96, 100(1) and 112(3)(b)). each year viz. the Budget Session (Feb. May),

51
the Monsoon Session Guly Sept.) and Winter shall exercise a casting vote only in case of an
Session (Nov. Dec.). In the case of the Rajya equality of votes; (2) that all proceedings of
Sabha, however, the Budget Session is split up either House shall be valid irrespective of any
into two sessions with a three to four week break vacancies in membership or any unauthorized
in between so that it has four sessions in a year. participation in debate or voting; and (3) that the
The schedule of sessions may vary during an quorum to constitute a meeting of either House
election year or under other special shall be one-tenth of the total number of
circumstances. members.
Conduct of Business and Legislative Except Money Bills and other Financial
Procedure Bills, a Bill may originate in either House. Such
Each House is the master of its a Bill, before being presented to the President
procedure and may make rules for regulating its for his assent, must be passed by both the
procedure and conduct of business subject to the Houses either without any amendment or with
provisions of the Constitution (Article 118). The such amendments as may be agreed to by both
validity of any proceedings in Parliament cannot Houses. In case of final disagreement between
be questioned in a court of law on grounds of the two Houses on any Bill other than a Money
any alleged irregularity of procedure and no Bill, the President may summon a joint sitting of
officer or member of Parliament is subject to the two Houses to resolve the differences
jurisdiction of courts in respect of exercise of (Articles 107108). Financial Bills: The
any powers in the matter of regulating procedure Constitution makes a distinction between Money
or conduct of business in Parliament (Article Bills and Financial Bills. Generally speaking, a
122). Financial Bill may be any Bill which relates to
Some of the basic rules of procedure and revenue or expenditure. Besides providing for
conduct of business have been laid down in the any of the matters specified in the Constitution
Constitution itself. Thus, Article 100 provides for a Money Bill, a Financial Bill may also
(1) that except where otherwise provided in the provide for other matters. For the sake of
Constitution (e.g. in the case of Constitutional convenience, the Financial Bills may be divided
Amendments, impeachment of the President, into two categories: Category A: those Bills
removal of the Presiding Officers, judges etc.), which make provisions for any of the matters
all questions at any sitting of either House or specified in Article 110 for the Money Bill but
joint sitting of the Houses shall be determined do not contain solely those matters, e.g. a Bill
by a majority of votes of the members present which contains a taxation clause, but does not
and voting other than the presiding officer who deal solely with taxation. Category B: those

52
Bills containing provisions involving the amendments accepted by Lok Sabha. If no
expenditure from the Consolidated Fund amendment recommended by Rajya Sabha is
(Articles 110 and 117). acceptable to Lok Sabha or if the Bill is not
Special Procedure for Money Bills returned by Rajya Sabha within 14 days, it is
Article 110 defines a Money Bill as a deemed to have been passed by both the Houses'
Bill which contains only provisions regarding in the form in which it was passed by Lok Sabha
taxes, borrowings, custody of the Consolidated (Article 109).
and Contingency Funds, appropriations, Assent to Bills
declaring of any expenditure as charged on the Article 111 says that when a Bill passed
Consolidated Fund, receipt and custody of by the two Houses of Parliament is presented to
money in the Consolidated Fund, audit of the the President, the President shall either assent to
accounts of the Union (or of a State) or any the Bill or withhold assent therefrom. He may
other incidental matters. A Bill shall not become return a Bill, if it is not a Money Bill, to the
a Money Bill simply because it provides for Houses for reconsideration. If the Bill is passed
imposition of fines or other pecuniary penalties, again with or without any amendments and
or for payment of fees for licenses, or for fees presented to President for assent, he shall not
for services rendered or by reason that it withhold assent (Article 111). Another option
provides for imposition, regulation etc. of any available to the President is to seek some
tax by any local authority or body for local information or clarifications or to return the Bill
purposes. In case of any question arising to the Government i.e., the Council of Ministers,
whether a Bill is a Money Bill, the decision of for reconsidering their advice for according
the Speaker shall be final. While being presented assent to the Bill (Articles 74(1) and 78(b)).
to the President for his assent, every Money Bill President Zail Singh did not give his assent to
has to be certified by the Speaker as such a Bill the Postal Bill and President Venkataraman
(Article 110). A Money Bill can be introduced returned to the Government the Bill seeking to
only in the Lok Sabha and only on the give pension to Members of Parliament after just
recommendation of the President. After it is one year's service.
passed by the Lok Sabha and transmitted to Procedure in Financial Matters
Rajya Sabha, the latter may make its The Budget
recommendations, if any, within a period of 14 The President is required to cause to be
days and the Lok Sabha may accept or reject all laid before both Houses of Parliament in respect
or any of the recommendations. The Bill is of each financial year a statement of the
deemed to be passed by both the Houses with estimated receipts and expenditure of the

53
Government. This is termed the annual financial judges of any High Court which exercises
statement or the budget. jurisdiction in relation to any area included
The estimates of expenditure embodied in the in the territory of India or which at any
annual financial statement shall show separately time before the commencement of this
(a) the sums required to meet expenditure Constitution exercised jurisdiction in
described by the Constitution as relation to any area included in a
expenditure charged upon the Consolidated Governor's Province of the Dominion of
Fund of India; and India;
(b) the sums required to meet other (e) the salary, allowances and pension payable
expenditure proposed to be made from the to or in respect of the Comptroller and
Consolidated Fund of India and shall Auditor-General of India;
distinguish expenditure on revenue account (f) any sums required to satisfy any judgment,
from other expenditure. decree or award of any court or arbitral
The expenditure charged on the tribunal;
Consolidated Fund of India shall include: (g) any other expenditure declared by the
(a) the emoluments and allowances of the Constitution or by Parliament by law to be
President and other expenditure relating to so charged (Article 112).
his office; Estimates and Demands for Grants
(b) the salaries and allowances of the Estimates relating to expenditure
Chairman and the Deputy Chairman of the charged on the Consolidated Fund are not
Council of States and the Speaker and the submitted to the vote of Parliament but
Deputy Speaker of the House of the People, discussion thereon is not barred. Other estimates
(c) debt charges for which the Government of are presented to Lok Sabha in the form of
India is liable including interest, sinking demands for grants and the Lok Sabha may
fund charges and redemption charges, and either assent to or refuse any demand. It may
other expenditure relating to the raising of also assent to a demand subject to a reduction in
loans and the service and redemption of the amount asked for. Every demand for grant
debt; must receive the prior recommendation of the
(d) (i) the salaries, allowances and pensions President (Article 113).
payable to or in respect of judges of the Appropriation Bills
Supreme Court; (ii) the pensions payable to After the Demands for grants are voted
or in respect of judges of the Federal Court; by the Lok Sabha, a Bill is introduced for
(iii) the pensions payable to or in respect of appropriation out of the Consolidated Fund of

54
India, moneys required to meet the grants are Article 105 of the Constitution provides
voted by the House and the expenditure is for the powers, privileges etc. of the Houses of
charged on the Consolidated Fund. No Parliament and of the members and committees
amendment is permitted which seeks to vary the thereof.
amount or alter the allocation of any grant head 'Privilege' means a special or
or vary the amount of any charged expenditure. exceptional right or freedom or an immunity
Appropriation Bill is necessary because no enjoyed by a particular class of persons or some
money can be drawn from the Consolidated individuals. In its legal sense it means an
Fund without parliamentary sanction through an exemption from some duty, burden, attendance
appropriation Act. Additional, supplementary or or liability to which o~hers are subject. Privilege
excess grants may be voted separately but the can also be defined as a right which others do
same procedure shall apply to them as well not have. Parliamentary privileges are those
(Articles 114-115). special rights belonging to each House of
Article 116 provides for (i) a vote on Parliament, its members and committees,
account, i.e. grants being made in advance of the without which they cannot perform their
budget approval and completion of the whole functions in the manner they are expected to.
procedure, (ii) an exceptional grant which does The privileges are granted with a view to
not form part of the current service of any maintaining the independence of action and the
financial year, and (iii) a grant to meet an dignity of the Houses of Parliament, their
unexpected demand of large magnitude or of an committees and members and to enable them to
indefinite character (Article 116). Parliament function without any let or hindrance. The
may by law regulate the procedure for the privileges, in practice, give rise to certain
purpose of timely completion of the financial powers, immunities and exemptions. It does not,
business. (Article 119). however, imply that the privileges belonging to
Language in Parliament members place them on a footing different from
Hindi and English have been declared that of an ordinary citizen in the eyes of law
by the Constitution to be the languages for unless there are good reasons in the interest of
conducting business in Parliament. The Parliament itself to do so. The basic law is that
Presiding Officers may, however, allow any all citizens including members of Parliament
member not proficient in either to address the should be treated equally before the law. They
House in his mother tongue (Article 120). have the same rights and liberties as ordinary
PARLIAMENTARY PRIVILEGES citizens except when they perform their duties in
Parliament. The privileges are available to the

55
members only when and to the extent that they and of the members and the committees of
are functioning as representatives of the people each House, shall be such as may from time
in Parliament and discharging their to time be defined by Parliament by law,
parliamentary responsibilities: The privileges do and, until, so defined, shall be those of that
not, in any way, exempt the members from their House and of its members and committees
normal obligations to society which apply to immediately before the coming into force of
them as much and perhaps more closely in that section 15 of the Constitution (Forty-Fourth
capacity, as they apply to others. Amendment) Act, 1978.
1. The more important of the privileges, 4. The provisions of clauses (I), (2) and (3)
namely freedom of speech in Parliament and shall apply in relation to persons who by
immunity of members from any proceedings virtue of this Constitution have the right to
in courts in respect of anything said or any speak in, and otherwise to take part in the
vote given by them in Parliament, are proceedings of a House of Parliament or any
specified in Article 105 of the Constitution. committee thereof as they apply in relation
There shall be freedom of speech in to members of Parliament.
Parliament but subject to the provisions of In other words, each House, its
the Constitution and to the rules and Committees and members in actual practice,
standing orders regulating the procedure of shall enjoy the powers and privileges (other than
Parliament. those specified in the Constitution) that were
2. Clauses(2) and (3) of the Article provide available to the British House of Commons as
that no member of Parliament shall be liable on 26 January 1950.
to any proceedings in any court in respect of The most important of parliamentary
anything said or any vote given by him in privileges is that of freedom of speech while
Parliament or any committee thereof, and no performing parliamentary duties. Article 19 also
person shall be so liable in respect of the gives a citizen the right of free speech but
publication by or under the authority of Articles 105 and 194 lay special emphasis on the
either House of Parliament of any report, right of free speech of members of the
paper, votes or proceedings.20 legislatures. Under Article 19, the right of free
3. In other respects, the powers, privileges and speech is subject to reasonable restrictions, for
immunities of each House of Parliament, instance, the law of libel. An ordinary person
who speaks something libelous is liable to be
20
. Tej Kiran v. Sanjiva, AIR 1970 SC 1573; Gatish proceeded against but a member of Parliament
v. Harisadhan (1956) 60 CWN 971, A.I.R. 1961
SC 613 speaking in the House or in one of its

56
committees is immune from any attack on the account of anything said by him in Parliament or
ground that his speech was libelous or a Committee thereof. Likewise, it would be a
defamatory. breach of privilege to institute any legal
Members have to give expression to proceedings against a member in respect of
public grievances and raise various matters of anything said by him in Parliament or in a
public importance. In doing this, members Committee thereof. It has been held by the
should not suffer any inhibition and they should Supreme Court in the Searchlight case that the
be able to speak out their mind and express their freedom of speech conferred on members under
views freely. Inside the House or Committees of Article 105 is subject only to those provisions of
Parliament, a member is absolutely free to say the Constitution which regulate the procedure of
whatever he likes subject only to the Parliament and to the rules and standing orders
Constitution and internal discipline of the House of the House, but is free from any restrictions
or the Committee concerned; no outside which may be imposed by any law made under
authority has any right to interfere. Freedom of Article 19(2) upon the freedom of speech of an
speech is absolutely necessary for a member to ordinary citizen. Any investigation outside
function freely without any fear or favour in the Parliament in respect of anything said or done
Committees and in the Houses of Parliament. by members in the discharge of their
Unless whatever a member says enjoys parliamentary duties would amount to a serious
immunity from legal action, he cannot be interference with the members' rights. Even
expected to speak freely and frankly. The though a speech delivered by a member in the
Constitution provides, therefore, that no action House may amount to contempt of court, no
can be taken against a member of Parliament in action can be taken against him in any court. A
any court or before any authority other than court, being an outside authority, does not have
Parliament in respect of anything said or a vote the power to investigate the matter. Article 122
given by him in Houses of Parliament or any specifically forbids any inquiry by courts into
Committee thereof. It has been held by the proceedings of Parliament.
Supreme Court that provisions of the tenth The courts of law in India have thus
schedule in regard to disqualification on ground recognised that a House of Parliament or a State
of defection are not violative of Article 105(1)21 Legislature is the sole authority to judge as to
It is a breach of privilege to molest a whether or not there has been a breach of
member or to take any action against "him on privilege in a particular case. It has also been
held that the power of the House to commit for
21
. Kihoto v. Zachillhu, AIR 1993 SC 412 (CB) contempt is identical with that of the House of

57
Commons and that a court of law would be In dealing with the effect of the
incompetent to scrutinize the exercise of that provisions contained in clause (3) of Article 194,
power. whenever it appears that there is a conflict
The immunity from external influence between the said provisions and the provisions
or interference, however, does not mean an pertaining to fundamental rights, an attempt will
unrestricted licence of speech within the walls of have to be made to resolve the said conflict by
Parliament. It is important to remember that the the adoption of the rule of harmonious
privileges of the Houses and members and construction.
committees thereof are subject to other The Allahabad High Court, in their
provisions of the Constitution being construed judgment in Keshav Singh's case dated 10
harmoniously. Thus, for example, the privilege March 1965 (i.e. delivered after the advisory
of freedom of speech in Parliament will be opinion of the Supreme Court), observed as
subject to rules of procedure framed by Houses follows:
of Parliament under Article 118 and Article 121 (i) In our opinion, both upon authority and
forbids discussion in Parliament on the conduct upon a consideration of the relevant
22
of judges except on a motion for their removal. provisions of the Constitution, it must be
In 1965, the Supreme Court in its advisory held that the Legislative Assembly has, by
opinion in Special Reference Case of 1964, 23 virtue of Article 194(3), the same power to
observed as follows: commit for its contempt as the House of
It would not be correct to read the Commons has.
majority decision in the Searchlight case as (ii) In our opinion, the provisions of Article
laying down a general proposition that whenever 22(2) of the Constitution cannot apply to a
there is a conflict between the provisions of the detention in pursuance of a conviction and
latter part of Article 194(3) and any of the imposition of a sentence of imprisonment by
provisions of the fundamental rights guaranteed competent authority.
by Part III, the latter must yield to the former. (iii) Since we have already held that the
The majority decision, therefore, must be taken Legislative Assembly has the power to
to have settled that Article 19(1)(a) would not commit the petitioner for its contempt and
apply, and Article 21 would. since the Legislative Assembly has framed
rules for the procedure and conduct of its
business under Article 208(1), the
22
. M.S. Sharma v. Sri Krishna Sinha, AIR 1959 SC commitment and deprivation of the personal
395
23
. Keshav Singh's case) liberty of the petitioner cannot but be held to

58
 be according to the procedure laid down by a general rule that the exercise of powers by the
law within the meaning of Article 21 of the legislature is not amenable to judicial review.
Constitution. Scope for judicial review in matters concerning
(iv) Once we come to the conclusion that the Parliamentary proceedings despite being limited
Legislative Assembly has the power and and restricted is subject to scrutiny on breach of
jurisdiction to commit for its contempt and other constitutional provisions. Sheer
to impose the sentence passed on the irregularity of the procedure is no ground of
petitioner, we cannot go into the_ question challenge to the proceedings in Parliament or
of the correctness, propriety or legality of effect thereof but in case of gross illegality or
the commitment. This Court cannot, in a violation of constitutional provisions the Court
petition under Article 226 of the has the jurisdiction to examine the procedure
Constitution, sit in appeal over the decision adopted. Power to punish for contempt is a
of the Legislative Assembly committing the broad power encompassing a variety of other
petitioner for its contempt. The Legislative powers. Only limitation the Court recognizes in
Assembly is the master of its own procedure the power of the legislatures to punish for
and is the sole judge of the question whether contempt is that such powers cannot be used to
its contempt has been committed or not. divest the ordinary Courts of their jurisdiction.
The Government, therefore, decided that Duty of Supreme Court is to ensure that there is
an amendment of the Constitution was not no abuse or misuse of power by the Legislature.
necessary. It was of the opinion that the Court, therefore, should exercise its power of
Legislatures and the Judiciary would develop judicial review with utmost care, caution and
their own conventions in the light of the opinion circumspection.24
given by the Supreme Court and the judgment Thus, the latest position is that exercise
pronounced by the Allahabad High Court. of power under the privilege law has also been
More recently, when 11 Members were brought under judicial review.
expelled from their respective Houses-l0 from Codification of Privileges: Article 105(3) of the
Lok Sabha and 1 from Rajya Sabha-and the Constitution stipulates that, apart from the
matter reached the Supreme Court, upholding privileges mentioned in the Constitution itself,
the power of the Houses of legislatures to expel Parliament may, from time to time, define its
their members, the Court held: Parliament would privileges by law. No law, however, has so far
always be presumed to perform its functions and been enacted by Parliament in pursuance of this
to exercise its powers in a reasonable manner 24
. Raja Ram Pal v. Speaker Lok Sabha, (2007) 3
subject to exception of there being no scope for SCC 184

59
provision to define the powers, privileges and in case of the Governor of Bihar26 but the same
immunities of each House and its members and should apply equally to Presidential Ordinances.
the Committees thereof. The President's ordinance making power
As far as the constitutional stipulation has been challenged in courts in a number of
"until defined by Parliament by law" and the cases. It is clear that while the constitutional
question of defining or codifying the validity of the ordinances has been upheld, the
parliamentary privileges are concerned, opinions ordinance making power of the President is
are divided. subject to the same limitations as the legislative
Legislative Powers of the President power of Parliament e.g. in the matter of being
Article 123 empowers the President to subject to judicial review, fundamental rights,
promulgate ordinances when both Houses of and distribution of legislative powers under the
Parliament are not in session and he is satisfied Seventh Schedule.27
that a situation has arisen that requires RELATIVE ROLE OF THE TWO HOUSES
immediate action. Ordinances issued by the The two Houses of Parliament enjoy co-
President have the same force and effect as laws equal power and status in all spheres except in
made by Parliament except that all such financial matters and in regard to the
ordinances become inoperative on the expiry of responsibility of the Council of Ministers, which
six weeks from the reassembly of Parliament or are exclusively in the domain of Lok Sabha.
earlier if disapproved by the two Houses. Accordingly, the following limitations have
It has been held that the satisfaction of been placed on the powers of Rajya Sabha:
the President is beyond judicial review but it (i) A Money Bill cannot be introduced in Rajya
means satisfaction on the aid and advice of the Sabha.
25
Council of Ministers. (ii) Rajya Sabha has no power either to reject or
Repromulgation of an ordinance without amend a Money Bill. It can only make
any attempt to get the corresponding Bill passed recommendations on the Money Bill. If such
by the legislature and the practice of proroguing a Bill is not returned to Lok Sabha within a
the House merely to promulgate an ordinance period of 14 days, the Bill is deemed to have
has been held to be a fraud on the Constitution
26
. D.C. Wadhwa v. State of Bihar, AIR 1987 SC
579
25 27
. AK. Roy v. Union of India, AIR 1982 SC 710; . State of Punjab v. Mohar Singh, AIR 1955 SC 84;
Cooper v. Union of India, AIR 1970 SC 564; State of Orissa v. Bhupendra, AIR 1962 SC 945;
Satpal v. Lt. Governor, AIR 1979 SC 1550; Nagaraj v. State of AP., AIR 1985 SC 551;
Venkata v. State of AP., AIR 1985 SC 725; Vcnkata v. State of AP., 1985 SC 724; R.K. Garg
Nagaraj v. State of AP., AIR 1985 SC 55; State of v. Union of India, 1 SIR I SC 2139; A.K. Roy v.
Rajasthan v. Union of India, AIR 1977 SC 136. Union of India, AIR 1982 SC 710

60
 been passed by both the Houses at the The Constitution has assigned some
expiration of the said period in the form in special powers to the Rajya Sabha. It alone has
which it was passed by Lok Sabha (Article the power to declare that it would be in national
109). interest for the Parliament to legislate in respect
(iii) Whether a particular Bill is a Money Bill or of a matter in the State List. If by a two-thirds
not is to be decided by the Speaker of Lok majority, Rajya Sabha passes a resolution to this
Sabha (Article 110(3)). effect, the Union Parliament can make laws for
(iv) Rajya Sabha may discuss the Annual the whole or any part of the country even with
Financial Statement (Article 113). It has no respect to a matter enumerated in the State List
power to vote on the Demands for Grants. (Article 249). Also, Parliament is empowered to
(v) Rajya Sabha has no power to pass a vote of make laws providing for the creation of one or
no confidence in the Council of Ministers more All India Services common to the Union
(Article 75(3)). and the States, if the Rajya Sabha declares by a
Every non-financial measure must be resolution supported by not less than two-thirds
passed by both the Houses individually before it of the members present and voting that it is
can become an Act. Rajya Sabha has equal necessary or expedient in the national interest to
powers with Lok Sabha in important matters like do so (Article 312).
the impeachment of the President, removal of
the Vice President, constitutional amendments, Parliament and the Executive
and removal of the Judges of the Supreme Court After a new Lok Sabha is duly elected
and the High Courts (Articles 56, 61, 67, 124(1) and constituted, the President invites the leader
and 217(1)(b». Every Presidential Ordinance, of the party or parties commanding the support
Proclamation of Emergency and Proclamation of of more than half of the members of the Lok
the failure of constitutional machinery in a State Sabha, to form the government.
must be placed before both Houses of While the Prime Minister usually is a
Parliament (Articles 123,352(4) and 356(4)). member of the Lok Sabha, the Ministers are
Disagreement between the two Houses on a Bill, drawn from both Houses of Parliament. A
other than a Money Bill and a Constitution person other than a Member of Parliament may
Amendment Bill, is resolved by both the Houses also be appointed as Minister, but he has to
in a joint sitting where matters are decided by vacate the office after six months unless, in the
majority vote. Such joint sitting of the two meanwhile, he manages to get himself elected to
Houses is presided over by the Speaker of Lok either of the two Houses. Since the Council of
Sabha (Articles 108 and 118(4)). Ministers is collectively responsible to Lok

61
Sabha (Article 75), Ministers are under a While the Executive has almost
constitutional obligation to resign collectively as unlimited right to initiate and formulate
soon as they lose the confidence of Lok Sabha. legislative and financial proposals before
The scheme of the Constitution Parliament and to give effect to approved
represents a real fusion of the highest executive policies unfettered and unhindered by
and legislative authorities. The relationship Parliament, the latter has the unlimited power to
between the Executive and Legislature there call for information, to discuss, to scrutinize and
under is one that is most intimate and ideally to put the seal of popular approval on proposals
does not admit of any antagonism or dichotomy. made by the Executive. The Executive remains
The two are not visualized as competing centres responsible and the administration accountable
of power but as inseparable partners or co- to Parliament. The function of Parliament is to
partners in the business of government. Strictly exercise political and financial control over the
speaking, Parliamentary system of government Executive and to ensure parliamentary
should mean Government by Parliament. But, surveillance of administration. This control is
the Parliament is a large body. It does not and exercised through various procedural devices
cannot itself govern. The Council of Ministers like Question Hour, Motions, Resolutions,
may in a sense be described as the grand various kinds of discussions and scrutiny by
executive committee of Parliament charged with parliamentary committees.
the responsibility of governance on behalf of the PARLIAMENT AND THE JUDICIARY
parent body. In other words, the Executive is not Parliament has the power to make laws
a separate or outside body. Inasmuch as the regulating the constitution, organisation,
Council of Ministers is drawn from and remains jurisdiction and powers of the Courts. It was laid
part of Parliament and responsible to Lok Sabha, down in the Constitution that the number of
the relationship may be said to be that of a part Judges other than the Chief Justice would not be
to the whole and one of interdependence. There more than seven. The number now (2009) vide
is, however, a clear distinction between the Supreme Court (Number of Judges) Amendment
functions of the Executive and the functions of Act, 2008 is thirty. The Parliament was,
Parliament (Article 75). The Parliament is to however, empowered to prescribe a larger
deliberate, discuss, legislate, advise, criticize and number of Judges by law (Article 124). Under
ventilate public grievances. Also, it has a our Constitution, the Parliament may by law:
legitimatizational role. The Executive is to 1. extend the jurisdiction of a High Court to, or
govern, albeit on behalf of Parliament and the exclude the jurisdiction of a High Court
People. from, any Union territory;

62
2. establish a common High Court for two or Further, the Constitution empowers Parliament
more States or for two or more States and a to create an all India judicial service which shall
Union territory; and not include any post inferior to that of a district
3. constitute a High Court for a Union territory judge (Articles 312(1) and (3)).
or declare any Court in any such territory to The validity of any proceedings in either
be a High Court for all or any of the House of Parliament cannot be questioned
purposes of the Constitution (Art.241). before a court of law on the ground of any
A judge of the Supreme Court or any alleged irregularity of procedure (Articles 122(1)
High Court may by writing under his hand, and 212(1)) 28 . The presiding officer of each
addressed to the President, resign his office. He House or any other officer or Member of
can be removed from his Office by the Parliament who is for the time being vested with
President, only if a joint address passed by both the powers to regulate procedure, or to enforce
Houses of Parliament with a special majority or carry out the decision of either House of
(i.e., by a majority of the total membership of Parliament, is not subject to the jurisdiction of
the House and by a majority of not less than the courts in exercise of those powers (Articles
two-thirds of the members of each House 122(2) and 105(3)).
present and voting) is presented to him (Article The constitutional validity of a law can
124(4) and 218). Parliament is not empowered be challenged in India on the ground that the
to discuss the conduct of any Judge of the subject matter of the legislation:
Supreme Court or of a High Court in the 1. is not within the competence of the
discharge of his duties except in the case of a Legislature which has passed it;
motion for presenting an address to the President 2. is repugnant to the provisions of the
praying for the removal of a Judge (Article 121). Constitution; or iii. it infringes one of the
Parliament may by law provide for the Fundamental Rights.
establishment of an administrative tribunal for There is no appeal against the judgment
the Union and a separate administrative tribunal of the Supreme Court. It remains the law of the
for each State or for two or more States. The law land unless its interpretation is reviewed or
made under the provision may specify the reversed by the Supreme Court itself or the law
jurisdiction and powers of the tribunals. Such or the Constitution is suitably amended by
law may exclude the jurisdiction of all Courts, Parliament. If an Act of Parliament is set aside
except the jurisdiction of the Supreme Court by the judiciary, Parliament can re-enact it after
under Article 136, with respect to certain
specified matters (Articles 323A and 323B). 28
. Kihoto v. Zachilhu, AIR 1993 SC 412

63
removing the defects for which it was set aside. concurrent power to legislate in respect of
Also, Parliament may, within the limits of its entries in the Concurrent List. In case of conflict
constituent powers, amend the Constitution in between the Union and the State laws, the
such a manner that the law no longer remains former prevails (Article 254). Also, the
unconstitutional. residuary powers vest in the Union Parliament
Thus the Parliament in India is not as (Article 248 and entry 97 of the Union List). A
supreme as the British Parliament where large number of Articles empower the
traditionally no judicial review of legislation is Parliament to make laws in various matters by
permitted. At the same time the judiciary in saying things like 'save as otherwise provided by
India is not as supreme as in the United States of Parliament by law', 'Parliament may by law ..... '
America which recognizes virtually no limit on or 'until Parliament by law prescribes' etc.
the scope of judicial review. Parliament may by law change the name, the
On the issue of the sovereignty of boundaries, area etc. of the States or establish
Parliament, different views have been expressed new States (Articles 2, 3 and 4), increase the
even by the Supreme Court. 29 It has, however, number of judges of the Supreme Court or
been held in the Gopalan case that within the establish additional courts (Articles 124,247).
specified limits of its powers, the Parliament is Under Article 249, Parliament may legislate
supreme. even on matters in the State List. Under Article
FUNCTIONS OF PARLIAMENT 253, it may legislate for implementing a treaty or
1) Legislation agreement with a foreign country even though
Traditionally the main function of a the matter falls in the State List. Also, in
legislature is to legislate. Under Articles 245- circumstances of President's rule (Article 356) or
246 Parliament can make laws for the whole or proclamation of Emergency (Article 352),
any part of India within its area of competence Parliament can legislate in the State field.
as defined and delimited under the distribution 2) Constituent Powers
of legislative powers between the Union and the Under Article 368, Parliament exercises
States vide the Seventh Schedule. In regard to constituent powers in accordance with the
the Union List, the Parliament's jurisdiction is procedure laid down for different categories of
exclusive. Both the Union and the States have amendments. While a large number of Articles
can be amended by Parliament itself by a special
29
. See A.K. Gopalan v. State of Madras, (1950) SCR majority, in certain cases concurrence of the
88; In re Delhi Laws case (1951) SCR 747; States is required (See under' Amendment of the
Shankari Prasad v. Union of India, AIR 1951 SC
458 Constitution'). Parliamentary control over

64
Government: In a parliamentary system of defeating the Government on a major issue of
Government and under the scheme of our policy; (c) passing an adjournment motion; or
Constitution, Parliament has to ensure Executive (d) refusing to vote supplies or defeating the
or Ministerial responsibility, financial control Government on a financial measure.
and administrative accountability. Executive or 5) Parliamentary control over public finance
Ministerial responsibility to Parliament or what The power to levy or modify taxes and
is often termed parliamentary control over the the voting of supplies and grants is one of the
Executive or the Government is based on: (i) the most important checks against the Executive
constitutional provision of collective assuming arbitrary powers. No taxes can be
responsibility of the Council of Ministers to the legally levied and no expenditure incurred from
popular House of Parliament; and (ii) the the public exchequer without specific
Parliament's control over the Budget (Articles parliamentary authorization by law (Articles 114
75, 114-116 and 265). 116 and 265).
4) Parliamentary control over the Executive In fact, except in the theoretical sense of
This is political in nature. The the budgetary control or the ultimate sanction of
answerability of the Executive is direct, a vote of no-confidence, parliamentary control
continuous, concurrent and day-to-day. When over the Government is no more valid even in
Parliament is sitting, the continuance of the the 'Mother of Parliaments', In actual practice, it
Government in office depends from moment to is the Government which controls Parliament
moment on its not losing the confidence of the through its majority in the House of the People
House of the People. The House may at any time and through its power to have the House
decide to throw out the Government by a dissolved and fresh elections ordered by the
majority vote, i.e. if the ruling party loses the President.
confidence of the majority of the members of the Administrative accountability is ensured
House, its Government goes. No grounds, through legislation, through parliamentary
arguments, proofs or justification are necessary. devices like questions, discussions on various
When the House clearly and conclusively motions, committee scrutiny, and through the
pronounces that the Government of the day has Minister who actually represents Parliament and
lost its confidence, the Government must resign. controls his department on behalf of Parliament.
Want of parliamentary confidence in the Other Functions: Besides, Parliament exercises
Government may be expressed by the House of multifarious functions, for example, in matters
the People by: (a) passing a substantive motion like the impeachment of the President, removal
of no-confidence in the Council of Ministers, (b) of Supreme Court and High Court judges,

65
Comptroller and Auditor-General, Chief political party before the expiry of six
Election Commissioner, Presiding Officers of months from the date on which he takes his
the two Houses etc. (Articles 61, 124,217, seat shall be disqualified if he joins any
148,324,90 and 94). political party after the expiry of the said
ANTI- DEFECTION LAW period of six months;
The Constitution (Fifty-second (4) no disqualification would be incurred where
Amendment) Act, 1985 amended Articles 101, a member claims that he belongs to a group
102, 190 and 191 of the Constitution regarding representing a faction arising from a split in
vacation of seats and disqualification from a party or merger of a party in another
membership of Parliament and the State provided that in the event of a split the
Legislatures and added a new schedule (Tenth group consists of not less than one-third of
Schedule) to the Constitution setting out certain the members of the legislature party and in
provisions as to disqualification on grounds of case of a merger of not less than two-thirds
defection. Originally, the Tenth Schedule inter of the members of the legislature party
alia provided that: concerned;
(1) an elected member of Parliament or a State (5) no disqualification is incurred by a person
Legislature, who has been elected as a who has been elected to the office of the
candidate set up by a political party, and a Speaker or the Deputy Speaker of the House
nominated member of Parliament or a State of the People or of the Legislative Assembly
Legislature who is a member of a political of a State or to the office of the Deputy
party at the time he takes his seat would be Chairman of the Council of States or the
disqualified on the ground of defection if he Chairman or the Deputy Chairman of the
voluntarily relinquishes his membership of Legislative Council of a State, if he severs
such political party or votes or abstains from his connection with his political party;
voting in the House contrary to any direction (6) the question as to whether a member of a
of such party; House of Parliament or State Legislature has
(2) an independent member of Parliament or a become subject to disqualification will be
State Legislature will be disqualified if he determined by the Chairman or the Speaker
joins any political party after his election; of the respective House; where the question
(3) a nominated member of Parliament or a is with reference to the Chairman or the
State Legislature who is not a member of a Speaker himself it will be decided by a
political party at the time of his nomination member of the concerned House elected by
and who has not become a member of any it in that behalf;

66
(7) the Chairman or the Speaker of a House has preferred by the Government in the Supreme
been empowered to make rules for giving Court. Several writ petitions challenging the
effect to the provisions of the Schedule. The validity and constitutionality of the 1985
rules are required to be laid before the enactment were also filed in the Supreme Court
House and are subject to modifications/ and various High Courts. The Supreme Court,
disapproval by the House; on the request of the Government, withdrew and
(8) all proceedings in relation to any question as transferred to itself all the writ petitions pending
to disqualification of a member of a House before various High Courts. The Supreme
under the Schedule will be deemed to be Court30 found that there were legal infirmities in
proceedings in Parliament within the the passage of the Anti-Defection Law inasmuch
meaning of Article 122 or, as the case may as the Constitution Amendment Bill had not
be, proceedings in the Legislature of a State been ratified by the requisite number of State
within the meaning of Article 212; and Assemblies before being presented for the
(9) notwithstanding anything in the President's assent. Also, the Speaker's functions
Constitution, no court will have any under the 10th Schedule called for a judicial
jurisdiction in respect of any matter determination of issues under the law. The
connected with the disqualification of a process of determining the question of
member of a House. disqualification could not be considered part of
The Constitution (Fifty-second the proceedings of the House and as such was
Amendment) Act, 1985, which has since not amenable to judicial review. The Supreme
popularly come to be known as the Anti - Court struck down Para 7 of the Schedule
Defection Law, has been the subject matter of a barring the jurisdiction of Courts and declared
controversy from the very beginning. It has been that while operating under the Anti-Defection
questioned on several grounds viz., that it is Law, the Speaker was in the position of a
violative of the basic structure of the tribunal and therefore his decisions like those of
Constitution, that it is beyond the competence of all tribunals were subject to judicial review.
Parliament, and that it gives preference to Some of the situations that arose do not
expediency over principles. seem to have seen foreseen by those who drafted
Paragraph 7 of the Tenth Schedule the 52nd Amendment for outlawing defections.
which barred the jurisdiction of the courts was Also, the fact that certain provisions of the Tenth
struck down as being ultra vires of the Schedule were found to be amenable to entirely
Constitution by the High Court of Punjab and 30
. Kihata Hallahan v. Zachillhu & Others, AIR 1993
Haryana and an appeal against this order was SC 412

67
different interpretations by different presiding members led by Shri Vr. Singh. Even though
officers created terrible uncertainty and fluidity eight of these members had been expelled earlier
in the application of the law and brought to by the Janata Dal leadership in two separate
limelight a number of defects. spells, the Speaker allotted them separate seats
At the Union level, two Governments- in the House. They continued to be shown as
those of Shri VP. Singh and Shri Chandra among the 59 Janata Oal members in all official
Shekhar-fell in quick succession. Even though Lok Sabha records. In his final decision on 1
Shri Chandra Shekhar formed the Janata Dal(S) June 1993. Speaker Patil held that (i) the
Government and won the confidence of the political parties had no right under the
House on a substantive motion, all the members Constitution to expel members from the
of the ruling Janata Dal(S) were either those legislature party so as to take away their
who had been expelled by Shri Vr. Singh and constitutional status as members elected on a
declared "unattached" by Speaker Rabi Ray or particular party ticket (Tenth Schedule,
those against whom show cause notices for Explanation (a) to para 2(1)), and (ii) that the 20
disqualification under the Anti-Defection Law members did not suffer from any disability as on
had been issued by Speaker Ray in the exercise 7 August 1992 and since they had the requisite
of his powers under the Anti-Defection Law. strength of one-third on that day, they
The Speaker's action covered all the members of constituted a valid faction of the Janata Dal
the Council of Ministers headed by Shri Chandra Parliamentary Party. The Speaker disqualified
Shekhar. This dragged on until finally on 11 four of the 20 members on the ground of
January, 1991 Ray decided to give benefit of voluntarily disobeying their party whip.
doubt to the ruling party and recognised the split However, the disqualification was to have only
as a one time process which began and closed on prospective effect from the date of the order.
5 November. Janata Dal(S) was recognised as a Most significantly, the Speaker agreed that the
political party with 54 members. The seven Anti-Defection Law was defective and needed
members who joined after the date of split were review and reform. He suggested that the task of
disqualified. determining disqualification of members under
In another case of Janata split, on 7 the Tenth Schedule could better be entrusted to
August, 1992, 20 of the 59 members of the the judges.
Janata Dal appeared before Speaker Patil It was agreed on all sides that the Tenth
physically in one group, at the same time and Schedule of the Constitution which embodied
claimed that they belonged to a group and the Anti-Defection Law had several serious
should be seated separately from the Janata Dal lacunae which had caused tremendous damage

68
to our body politic and that amendments were the Lok Sabha / Vidhan Sabha. However, the
called for urgently. For instance, several terms protection under the merger provision still
like 'political parties', 'split', 'merger' etc. had not remains.
been defined. The Tenth Schedule defined a Parliamentary Reforms
'Legislature Party' and an 'original political The Constitution Commission
party' in either case with reference to a 'political (NCRWC) reviewed the working of Parliament
party' but unfortunately a 'political party' had not for half a century (1950-2000) and inter alia
been defined. It would be necessary to define a recommended:
political party and to lay down conditions for its (1) periodic review of the work of Standing
recognition for purposes of the Anti Defection Committees of Parliament,
Law. It was particularly imperative in view of (2) setting up of a model standing committee
the constitutional provision of Para 3 of the on National economy,
Tenth Schedule to the effect that the breakaway (3) setting up of a Standing Constitution
faction following a split would be deemed to be Committee for a priori scrutiny of
a 'political party' for purposes of Para 2(1). Constitution amendment proposals.
The Constitution Commission (4) discussing major reports of Parliamentary
(NCRWC) recommended that all defectors- Committees on the floors of the two houses;
whether individual or in groups of one-third etc.- (5) parliamentarians throwing themselves open
should be disqualified for continuing as to public scrutiny through a parliamentary
members. They must resign and seek fresh 'ombudsman'.
election and until re-election, they should stand (6) restoration of domiciliary requirement for
debarred from holding any public office of a Rajya Sabha membership
minister or any other remunerative political post. (7) codification of parliamentary privileges
Following the NCRWC recommendation, the inter alia clarifying that they do not cover
Constitution (9pt Amendment) Act 2003 corrupt acts like accepting bribe
amended the Tenth Schedule of the Constitution (8) more systematic approach to planning
and inserted a new Article 361B to take away legislation, appointment of a Legislation
the protection from defectors on grounds of split Committee and referring all bills to a
in the party. It disqualified all defectors from departmental standing committee
membership and made them ineligible for (9) the MP LAD Scheme may be discontinued
ministership or other remunerative public office immediately for being inconsistent with the
till reelection. Also, the number of ministerial spirit of the Constitution.
posts was limited to 15% of the membership of

69
 STATE LEGISLATURES one member of that community as provided
Article 168 of the Indian constitution under Art 333 of the constitution of India.
provides that every state shall have a legislature. Composition of the Legislative Council
It consists of the governor and one house or the As per Art.171 of the Indian
governor and two houses. The two houses are constitution, the total number of members in the
known as the ‘Legislative Assembly’ and the legislative council of a state having such a
‘Legislative Council’. If there be only one council shall not exceed one-third of the total
house, it is known as the ‘Legislative number of members in the legislative assembly
Assembly’. It is not always necessary that every of the state, however, in no case, the strength of
state legislature must be bicameral. A state’s the legislative council shall be less than forty.
legislature may be unicameral. In fact, barring The composition of legislative council is
very few states, many states in the union do not partly through indirect election (one-third of the
have legislative councils. The constitution total numbers of the council being elected by
provides for the abolition of legislative councils members of the legislative assembly), partly
where they exist and also for their creation through special constituencies (e.g., graduates’
where they are non-existent. As per Art.169, for constituency, teachers’, constituency) and partly
creation or abolition, the legislative assembly of by nomination. The governor nominates persons
the state must pass a resolution to that effect by having special knowledge on experience in the
a majority of the total membership of the fields of literature, science, Art, co-operative
assembly and by a majority of not less than two- movement and social service.
thirds of the members of the assembly present Reservation of seats for SC / ST in the
and voting. Legislative assembly
Composition of Legislative Assemblies Article 332 of the Constitution deals
As per Art.170 of the Indian with the reservation of seats for the Scheduled
constitution, the legislative assembly of a state Castes and Scheduled Tribes in the Legislative
shall consist of not more than five hundred and Assemblies of the state. This Article lays down
not less than sixty members chosen by direct as follows:
election from the territorial constituencies in the (1) Seats shall be reserved for the Scheduled
state. If the governor of a state is of the Castes and Scheduled Tribes, except the
opinion that the Anglo-Indian community needs Scheduled Tribes in the tribal areas of Assam in
representation in the assembly and is not the Legislative Assembly of every state.
adequately represented therein, he may nominate

70
(2) Seats shall be reserved for the Scheduled Duration of State Legislatures and
Castes or the Scheduled Tribes in the Legislative Qualification for membership
Assembly of Assam. As per Arts.172 and 83, the provisions
(3) The number of seats reserved for the for the duration of the legislatures and as per
Scheduled Castes or the Scheduled Tribes in the Art.84 the provisions of qualification are mutatis
Legislative Assembly under clause (1) shall bear mutandis the same as those for the duration and
as nearly as may be, the same proportion to the qualification of members the houses of
total number of seats in the Assembly as the parliament.
population of the total number of seats in the Dissolution
Assembly as the population to the Scheduled As like president is of parliament,
Castes in the state or of the Scheduled Tribes in governor is an integral part of the state
the state or part of the state, as the case may be, legislature. Likewise the president at the centre,
in respect of which seats are so reserved, bears the governor of a state can summon, address,
to the total population of the state. prorogue the state legislature, can dissolve the
(4) The number of seats reserved for an state assembly, The legislative council is not
autonomous district in the Legislative Assembly subject to dissolution as mentioned under
of the state of Assam shall bear to the total Art.174,175,176 of the Indian constitution
number of seats in Assembly in proportion not respectively.
less than the population of the district bears to The speaker, deputy speaker of the
the total population of the state. legislative assembly; vacation, resignation,
(5) The Constitution for the seats reserved for removal, other ancillary provision are mutatis
any autonomous district of Assam shall not mutandis the same as those for the speaker and
comprise any area outside that district. deputy speaker of Lok Sabha as per
(6) No person who is not a member of a Art.178,179,180,181of the constitution of India.
Scheduled Tribe of any autonomous district of The chairman & deputy chairman of the
the state of Assam shall be eligible for election Legislative Council
to the Legislative Assembly of the state from Legislative Council has to choose both
any Constituency of that district. the chairman and the deputy chairman as soon as
The total number of seats in Legislative it can.
Assemblies in state and the Union Territories in Vacation, Resignation, Removal & other
the year 2019-20 was 4,120 out of which 577 Ancillary provisions
seats were reserved for SC's and 288 for ST's. The vice-president is the ex officio
chairman of the council of states. The provisions

71
for vacating his office or for his removal have 3) Although Art.200, exclusive of the proviso,
been dealt with earlier. corresponds to Art.111. The proviso requires
The other provisions relating to the that the governor to reserve for the
chairman, deputy chairman of the legislative consideration of the president any Bill which
council are mutatis mutandis the same as those in his opinion, if it became law, would so
relating to the speaker, deputy speaker of the derogate from the powers of the High court
Lok Sabha and the legislative assembly as as to endanger the position which the High
provided underArt.89 to 92 & 182 to 185 of the Court is designed to fill under the
constitution of India. Provisions for conducting constitution.
business like oaths, votes, quorum as provided 4) When a bill is reserved by the governor for
under Arts. 99 & 188; 100 &189 of the Indian the assent of the president, the president may
Constitution are same for both the parliament either give his assent or declare that he
and state legislatures. Further, the provisions for withholds his assent. Where the bill is not a
vacation of seats provided under Art. 101 & 190; money bill, the president may direct the
Disqualification mentioned under Arts.102 ,191; governor to return the bill together with the
provision of ‘No Dual Membership’ mentioned message as per proviso to Art.200 of the
under Arts.102 (1) and 190 (3); disputes as to constitution of India, requesting the
disqualification of members to be decided by the legislature to reconsider two bill or parts of
governor acting according to the opinion of the it in the light of the message, the house or
election commission as per Art.192 of the Indian houses must then consider the bill within six
constitution. months & if it is passed without amendment,
The provisions mentioned under Art.194 it must be submitted to the president for his
deal with the powers, privileges and immunities consideration.
of the members of legislatures. It compares Powers and functions of state legislatures
materials on Art.105.The procedures of the state The powers and functions of the state
legislature in respect of money bills and legislature may be mentioned as follows:-
financial and other matters are mutatis mutandis (a) Legislative powers
the same except for the following; The legislature of each state has got
1) No provision for joint session of legislative power to frame laws on all matters included in
assembly & legislative council even if a the state list (list II) and the concurrent list(list
state legislature has two houses. III) of the VII th schedule of the constitution of
2) Items charged on the consolidation fund are India. But laws made by the state legislature on
to some extent different. the subject in the concurrent list will be null and

72
void, if in case they conflict with the laws of the sanction, a single rupee cannot be spent. The
union on the same subject provided the relevant budget is introduced every year in the state
laws of the state legislature have not obtained legislature. The state legislature may pass,
the assent of the president. Thus, the constitution reduce, or reject the demands for grants made in
has imposed certain restrictions on the powers of the budget. It is its duty to find ways and means
the state legislature. Another limitation on the to meet the budget expenditure. Proposal for
power of the legislature is that during an increase or decrease of taxes are to be approved
emergency, the parliament of India may make in the assembly.
laws on the state list. In a bi-cameral legislature, the position
As provided under Article 249 of the of the legislative assembly superior to that of the
constitution of India, even in normal times, if the legislative council in respect of financial
council of states passes a resolution by two- matters. Excepting the expenditure charged on
thirds majority that in the national interest the the consolidated fund of the state (which is non-
union parliament should make law on any votable) all other items of expenditure must be
matters in the state list, the parliament of India is submitted to the legislative assembly in form of
competent to make laws. demands for grants. In financial matters, the
Further, the governor of the state, at his legislative assembly is supreme in the state.
discretion may reserve certain bills like (c) Control over executive
acquisition of private property, bills seeking to As we have parliamentary form of
impose restrictions on freedom of trade and government in the centre as well as in the states.
commerce, bills affecting powers of High Consequently, the council of ministers is
Courts, etc. for presidential assent. Under such collectively made responsible to the state
circumstances, the president of India may give legislature. Thus, the legislature exercises
assent to such bills or send them back for the supervision and control over the ministers. The
reconsideration of the state legislature. If such common method used to make the ministers
bills are again passed by the state legislature, the responsible to the legislature is through question,
president is not bound to give his assent. Thus censure motion, amendment to government's
the president can veto the bills in entirety, if he policy, vote of no confidence, etc.
so desires. Thus the legislative power of the state There are also committees, which
legislative assembly is limited. exercise control over the government on behalf
(b) Financial powers: of the state legislature. In controlling the
The legislature of a state controls the executive, the legislative assembly is more
finances of a state. Without the legislative powerful than the legislative council. A vote of

73
no confidence in the legislative council may not of the constitution. Thus unlike U.S.A., the state
lead to the resignation of the council of legislatures in India has limited voice in the
ministers. However, such a vote of no amendment of the constitution
confidence if passed in the legislative assembly Ordinance making powers of governor-
compels the ministry to tender its resignation. Just as the President of India is
(d) Electoral functions constitutionally mandated to issue ordinances
The elected members of the legislative under Article 123, the governor of a state can
assembly constitute a part of the electoral also issue ordinances under Article 213, when
college provided for the election of the president the state legislative assembly (or either of the
of India. The legislative assembly also elects the two Houses in states with bicameral legislatures)
representatives of the state to the Rajya Sabha is not in session. The powers of the president
and 1/3rd of the members of the legislative and the governor are broadly comparable with
council of the state concerned. Further, it elects respect to ordinance making. However, the
it’s speaker and deputy speaker. Legislative governor cannot issue an ordinance without
council also elects a chairman and vice- instructions from the president in three cases
chairman from among its members to preside where the assent of the president would have
over the meeting of the council. been required to pass a similar bill.
(e) Constituent functions Restrictions on the powers of state legislature
The state legislatures in India have no 1) Some bills can be introduced in a state
power to propose any amendment of the legislature only with the prior consent of the
constitution. All initiatives for the amendment of president.
the constitution are vested in the union 2) Some bills even though it is passed by the
parliament. state legislature, can be reserved by the
In America, both the union and the governor for the consent of the president.
states have equal power with regard to the Such bills become laws only after the assent
amendment of the constitution. However, there of the president.
are certain categories of amendments of the 3) The union parliament has got the power to
Indian constitution (such as the election of the pass laws on the state list, (for one year) if
Indian president, High Courts, the representation the Rajya Sabha adopts a resolution
of states in the parliament, Article 368 of the (supported by 2/3rd majority of the members
constitution etc.) which are to be ratified by one present and voting) and declares a state
half of the legislatures. In these respects, the subject mentioned in the resolution as a
state legislatures also take part in the amendment subject of national importance.

74
4) During the period of a national emergency GOVERNOR AND THE LEGISLATURE
(Under Art. 352), the parliament is (A) Nomination of members to the
empowered to pass a law on any subject of Legislature
the state list. Such law operates during the Like the President of India, the
period of emergency and for six months Governor of the State in the Indian Union is also
after the end of the emergency. an integral part of the State Legislature. It
5) During the operation of constitutional consists of the Governor and the Legislative
emergency in a state under Art 356, the Assembly and wherever there is a bi-cameral
union parliament gets the authority of Legislature it consists of the Governor, the
making laws for that state. The state Legislative Assembly and the Legislative
legislature stands either dissolved or Council as provided under Article 168 of the
suspended. Constitution.
6) Discretionary powers of the governor of a Article 333 says: “Notwithstanding
state also constitute a limitation on the state anything in Article 170, the Governor of a State
legislature. Whenever he acts in his may, if he is of the opinion that the Anglo Indian
discretion, he is beyond the jurisdiction of community needs representation in the
the state legislature. Acting in his discretion, Legislative Assembly of the State and is not
the governor can even dissolve the state adequately represented therein, nominate one
legislative assembly. member of the community to the Assembly.
7) The state legislature and the union According to Article 171(3)(e) of the
parliament, both have the concurrent power Constitution the State Governor is to nominate
to make laws on the subjects of the one-sixth of the members of the Legislative
concurrent list. If both the union parliament Council. Article 171, clause (5) stipulates “The
and a state legislature pass a law on the members to be nominated under sub-clause (e)
same subject of the concurrent list and there of clause (3) shall consists of persons having
is inconsistency between the two, the law special knowledge or practical experience In
passed by the union parliament gets respect of such matters as the following;
precedence over the corresponding state law. Literature, Science, Art, Co-operative
State legislature privileges Movement and Social service.”
The state legislature privileges are If we examine the qualifications
mutatis mutandis the same as those relating to mentioned in Article 171, then we will find that
privileges of members of parliament.- they are quite vague and when the Governor is
to nominate more than one person it is not

75
necessary that he should nominate persons of sole Judge on this point. The Court cannot
different categories mentioned in the Article. In substitute its opinion or decision in place of the
fact, he can nominate more than one person decision of the Governor.”
31
belonging to the same category. Besides this, On this point there are two conflicting
the question whether the persons nominated opinions. According to Mr. C.K. Daphtary
have the required qualifications or not, cannot be (former Attorney General) "the nomination is
decided by 'the Court because whether one not made by the Governor in his discretion, but
possesses the required qualifications or not is a is made by the Governor in the exercise of his
question of fact and the High Court executive power of the State vested in him on
cannot32decide it under Article 226. the aid and advice of the Council of Ministers.34
The pertinent question arises, whether But according to other school of thought "the
the Governor is to act upon the advice of the power exercised by the Governor under Article
Council of Ministers while exercising his 171(3)(e) is not an exercise of the executive
powers of nominating the members or whether power of the State but that in acting under this
he is to exercise his discretion in this respect. In provision of the Constitution, the Governor
33
Biman Chandra Bose vs. H.C. Mukherjee , the exercises his special constitutional function,
Calcutta High Court declared : "Unless a mentioned therein, and this function has to be
particular Article expressly so provides an performed by the Governor himself in his
obligation to act in his discretion, cannot be discretion."
imposed upon the Governor by implication. If we examine this question carefully,
Article 163 makes it quite clear that except in then it will be found that it is difficult to agree
the cases required to act in his discretion, he is to with the proposition made by the former
act on the advice and so it must be presumed Attorney General. "Just as the power of issuing
that in making the nomination he must have ordinance is a constitutional power and not a
acted on the advice of his Council of Ministers." power of the Government, and hence, it is
In this case it was alleged that out of nine incapable of being delegated or entrusted to any
persons nominated by the Governor, none fulfils other body or authority, similarly, the power of
the requirements of Article 171 (5). But the nomination is also a constitutional power given
Court held that "the Governor alone is made the to the Governor by Chapter III of Part VI which
gives other constitutional powers to him such as
31
. Vidya Sagar v. Krishna Ballabha Sahay, A.I.R. the power of summoning, proroguing and
1965,Patna, 321.
32 34
. Ibid. . Vidya Sagar Vs. Krishna Ballabha Sahay, A.I.R.
33
. AIR 1952, Cal. 801 1965 Patna, 321.

76
 39
dissolution.* The contention that the Governor Council. Sri Prakasa while defending his
does not exercise this power in the exercise of action said that the “convention requires that the
his executive power of the State is also Governor should make such nomination on the
supported by the fact, that the executive power advice of the Chief Ministers. As the then Chief
of the State extends only to those matters with Minister was not prepared to give any advice on
40
respect to which the Legislature of the State has anything, I had to act on my own.
power to make laws, 35 and since the State Subsequently these nominations were
Legislature has no power to make laws in this challenged in the Madras High Court by
respect, therefore, it is not an exercise of the Raraamoorthi on the ground that it was
executive power of the State. "Hence it is a “virtually in exercise of fraud of the powers
discretionary power, but if the Governor instead conferred by the Constitution on the Governor
of exercising his discretion, acts upon the advice because the nomination was made with the
of the Council of Ministers, then it will not be ulterior object of assisting the Congress
unconstitutional." 36 Here it is also pertinent to Legislature Party." The validity of nomination
note that, "the Court cannot enquire into advice, was also challenged on the ground that "the
37
if any, given by the Council of Ministers." The Governor cannot exercise the power of making
Governor not being liable to justify the the nominations under Article 171(3) (e), (5) of
nominations is not bound to disclose any facts the Constitution except on the advice of the
38
relating to such nominations. Being so, the Council of Ministers." But the High Court
power of nomination been misused by the refused to accept this contention.41
Governors in various States. For instance, "after There are other examples also where the
the General Election in 1952, the Governor of Governors have exercised this power without the
Madras nominated Mr. C. Rajagopalachari to the advice of the council of Ministers. For instance
Council simply to appoint him the Chief after the general election in 1957 the Kerala
Minister. In this case Sri Prakasa himself said Governor nominated an Anglo Indian to the
that he did not consult the Cabinet when he State Assembly. The nomination was even
nominated Mr. C. Rajagopalachari to the before the new Government was formed and

35
. Article 162.
36 39
. J.R. Siwach, Office of the Governor (1971), p. . K.V. Rao, "The Deputy Ministers - Their
125. constitutional positions." The modern Review,
37
. Vidya Sagar Vs. Krishna Ballabha Sahay, A.I.R. Vol. LXXXIV, No. 2, August 1953, pi 118.
40
1965, Patna 321. . Sri Prakasa, state Governors in India, (1966), p.
38
. Biman Chandra Vs. H. C. Mukherjee, Governor, 42.
41
West Bengal, A.I.R, 1952, Cal, 6o3. . In re Ramamoorthi, A.I.R, 1953, Madras, p. 95.

77
therefore without its advice. 42 Similarly the Chandra Bhan Gupta, 46 it decided that "clause
Governor of UP Mr. B. Gopal Reddy nominated 3(e) and (5) of Article 171 make an inroad into
four Congress backed persons to the Legislative principle of election which is the foundation of
Council during the President’s Rule. 43
Mr. the system of Parliamentary Government
Pitamber Das a member of the Rajya Sabha established by Constitution. Clause (5) was not
criticized these nominations and said that none purported to enable a Minister who had been
of those members was qualified to be appointed defeated in election to enter Legislature through
44
under Article 171 (5) of the Constitution. So back door to enable the party in office to
far as the qualifications mentioned in Art. 171 increase its numerical strength in the Upper
(5) are concerned the Governor can exploit the Chamber. Clause (5) was intended to make
situation easily because these are quite vague membership available in public interest to
and purposeless. The Allahabad High Court has persons having special knowledge or invaluable
decided that “even practical experience in political experience in the spheres mentioned so
spheres enumerated makes a person eligible for that they might not context election."
nomination to the Council even though he has Article 171 should be used according to
no special knowledge in them – person who has a set of conventions. The real talented persons
taken active part in politics and the governance should be searched from different fields as
of the State for several years – presumption is prescribed by Article 171(5) while making
that he has practical experience in matters of nomination. Past records of the persons to be
social service and is therefore qualified to be nominated should be verified. The politicians
nominated as member of the Council.45 defeated in the polls should not be nominated to
Besides in 1962 Mr. S. Nijalingapa after the Legislative Council.
having been defeated at the poll was brought to However, the constitutional practice
the Council through the instrumentality of warrants that the Governor should always
nomination. As a matter of fact such a step of consult the Council of Ministers before any
the Governor, in view of the decision of the name for nomination is declared.
Allahabad High Court, seems to be (B) Summoning of the Legislature
unconstitutional. In Har Sharan Varma Vs. Article 174(1) says "The Governor shall
from time to time summon the House or each
42
. Tribune, Ambala Cantt March 10 1967 House of the Legislature of the State to meet at
43
. Rajya Sabha Debates Vol. 65 No.18 Aug. 19,
1968 such time and place as he thinks fit, but six
44
. Ibid
45
. Harsharan Varma v. Chandra Bhan Gupta AIR
46
1962 All 301 . AIR 1962, Allahabad 305

78
months shall not intervene between its last Prime Minister who would advise the President
sitting in one session and the date appointed for to summon the Legislature.48
its first sitting in the next session." In Britain it is a well-formed convention
The term 'session' cannotes a number of that the Sovereign always exercises his
sittings of the Legislative body for transaction of prerogatives of summoning and proroguing and
business. A session begins with summons and dissolving Parliament on the advice of the Prime
ends with prorogation. According to the Minister.49 The British Parliament is summoned
Parliamentary norms it is expected that the by Queen / King by a royal proclamation and it
Governor would exercise this power according is prorogued and dissolved by the Queen / King.
to the advice of the Chief Minister of a State. It The modern practice is that the new Parliament
is the Council of Ministers which provides is summoned to meet not less than twenty clear
business for a session of the Legislature. The days after the date of the proclamation.50
Governor has nothing to do with the business The Union Government’s spokesman
except to act in accordance with the advice of also conceded that "it is for the Ministry
the Council of Ministers. In the Constituent functioning for the time being to reach the
47
Assembly when Prof. K.T. Shah wanted to decisions as to whether the State Legislature is
empower the Presiding Officers of both the to be summoned to meet, and if so, at what time
Houses of Parliament "provided that if at any and place. The Chief Minister will have to
time the President does not summon as provided persuade the Governor about it and the latter
for in the Constitution." Dr. B. R. Ambedkar may express a different view-point, but the final
maintained first that the President may be say will be that of the Chief Minister. 51 The
impeached since a refusal on the part of Emergency conference of the Presiding Officers
President to perform obligations which have of the Legislatures in India also held that the
been imposed upon him would be undoubtedly Governor should summon or prorogue the
violation of the Constitution and second that Legislature on the advice of the Chief Minister.52
neither the speaker nor the Chairman of either Hence, the Governor should act on the advice of
House would be entitled to summon the meeting
48
. Ibid, p. 106.
of the Legislature since the business' had to be 49
. S.3. Chrimes, English Constitutional History
provided by the executive; that is to say the (London, Oxford University Press, 1947), p. 14.
50
. E.C.E. Wade, 6. Godfrey Phillips, Constitutional
Law (London: Longmans Green and Co; 5th Edn.
1955) p. 90.
51
. Quoted from A.c. Noorani, India’s constitution, p.
29.
52
. Aslan Recorder, Vol. XIV, No. 17, April 22-28,
47
. C.A.D. Vol. VIII, p. 99 1968 pp. 8284-85.

79
the Chief Minister alone. It is the choice of the
Chief Minister alone when and where he wants
to transact the business of the Assembly.
This is the role of the Governor in the
normal days of the functioning of the
constitutional machinery in the State. But what
should be the role of the Governor when there
are constant defections or there is a split in the
ruling party which has reduced ruling
Government into a minority and the Chi6f
Minister is not prepared to face the Assembly?
The Constitution as such does not provide any
solution to meet this contingency.
Constitutional practice has
countenanced the authority of a Governor in
insisting upon a Chief Minister to convene the
Assembly to clear the clouds upon his
continuing majority when the loss of support is
manefestly obvious. It has been contended in
some quarters that such a procedure is opposed
to the terms of Article 174(1) which does not
compel a Chief Minister to convene a session of
the Assembly during the interval of six months.
The Advocate General of West Bengal is stated
to have expressed the view that "no Assembly
can be summoned to test the majority of the
Chief Minister.

80
 MODULE - 04
STRUCTURE, POWERS AND FUNCTIONS OF SUPREME COURT, HIGH COURT
AND TRIBUNALS

Provisions in regard to the judiciary in 124(2), Supreme Court Judges are to be

India are contained in Part V on The Union appointed by the President after consultation
under Chapter IV titled The Union Judiciary and with such of the judges of the Supreme Court
Part VI on The States under Chapters V and VI and of the High Courts as the President may
titled The High Courts in the States and deem necessary.
Subordinate Courts respectively. It is, however The proviso to the Article says that "in
important to emphasize that unlike other federal the case of appointment of a judge other than the
systems, for example, that of the United States, Chief Justice, the Chief Justice of India shall
we do not have separate hierarchies of federal always be consulted". The only obligation for
and State Courts. the Government was to consult the Chief Justice
For the entire republic of India, there is and other judges. Significantly, the appointment
one unified judicial system-one hierarchy of was not required to be made 'in consultation' but
courts-with the Supreme Court as the highest or only 'after consultation'. In actual practice, after
the apex court and as the only arbiter in matters receiving the opinion of the Chief Justice, the
of relations between the Union and the States Cabinet deliberated on the matter and advised
and the States inter se. the President in regard to persons to be
THE SUPREME COURT appointed. The President acted on the advice. In
Composition of the Court and conditions of case of the Chief Justice, the senior most judge
Judge's office: was usually appointed. The convention,
Article 124 provided for the however, was ignored when in the 70s, a couple
establishment of the Supreme Court with a Chief of Chief Justices were appointed superseding
Justice and seven other judges. It, however their more senior colleagues.
authorized Parliament to increase the number of It was held in S.P. Gupta v. Union of
judges by law. The number as fixed by law India (AIR 1982 SC 149) that consultation must
[Supreme Court (No. of Judges) Act 1956 as be effective and must imply exchange of views
amended in 1986) was 25 in addition to the after examining merits, but that it did not mean
Chief Justice. It has since been increased to 30 concurrence. However this case was overruled in
by the 2008 Amending Act. Under Article 1993 in the Supreme Court Advocates-on

81
Record Association v. Union of India (AIR 1994 the Chief and at least three of the four had to
SC 268). In this case, the Supreme Court agree.
practically took over the power of selecting the The Constitution Commission
judges for appointment in its own hands. As a (NCRWC) recommended appointment of a
safeguard, it mandated the Chief Justice National Judicial Commission as 'a machinery
associating two of his senior most colleagues in for appointment of judges 'and suggested that
the selection process. The procedure for retirement age of High Court judges may be
appointment was revised in the light of this increased to 65 years and of the Supreme Court
judgment in 1994 to the effect that the decisive judges to 68 years.
view in the matter of the appointment of judges Every judge of the Supreme Court holds
shall be that of the Chief Justice of India and in office until the age of 65 years. A judge may be
case of a vacancy in the office of the Chief removed from his office only by an order of the
Justice of India, the senior most judge shall be President passed after an address by each House
appointed unless the retiring Chief Justice of Parliament for his removal" on the ground of
reported that he was unfit. However, following misbehaviour or incapacity" supported by a
the government's reservations in regard to majority of the total membership of that House
certain recommendations made by the Chief and by a majority of not less than two-thirds of
Justice in the matter of appointment of judges to the members present and voting is presented to
the Supreme Court, the matter again became him in the same session. The procedure may be
highly controversial and the President made a regulated by Parliament by law (Article 124). In
reference to seek the advisory opinion of the the case of Justice Ramaswamy, motion for
Supreme Court under Article 143 of the presenting an address to the President for his
Constitution. The Court pronouncing its removal failed to get the required majority in
53
advisory opinion basically confirmed the Lok Sabha.
position in the 1993 judgment but it provided Contrary to the common belief, there is
some more safeguards. The Chief Justice had to no provision in our Constitution for the
consult four senior most judges of the Supreme impeachment of a judge. The impeachment is
Court and if two of the four disagreed on some provided for the President and none else. Also,
name, it could not be recommended. In effect, there is a fundamental difference between
decisions were to be taken by consensus where removal procedure and impeachment procedure
and between the impact of the adoption of a

53
motion for impeachment and the passing of a
. Spi. Ref No.1 of 1998 on 28 October 1998
[(1998) 7n see 739J motion for presenting an address to the President

82
seeking orders for the removal of a judge. The absence, the President shall appoint an Acting
grounds for the impeachment of the President Chief Justice from among the judges of the
have to concern 'violation of the Constitution' Court to perform the duties of the Chief Justice
while an address for removal of a judge has to (Article 126).
be on the ground of "misbehavior or incapacity". If at any time there is no quorum of
In case of impeachment, the moment the motion judges of the Supreme Court available to hold or
is passed by the two Houses, the President continue any session of the Court, the Chief
forthwith ceases to be the President. But in case Justice of India is empowered to appoint ad hoc
of the motion for removal, it is for the President judges in the Supreme Court from among judges
to consider issuing necessary orders. of the High Courts, having qualifications to be
Every person appointed as a judge of the appointed judges of the Supreme Court, for such
Supreme Court, before he enters upon his office, period as he deems necessary. He can do so only
takes an oath before the President -or some with previous consent of the President and after
person appointed in that behalf by him in the consultation with the Chief Justice of the High
form prescribed in the Constitution. The Court concerned. The judge so appointed is duty
Constitution prohibits a person who has held bound to give priority to the Supreme Court
office as a judge of the Supreme Court from duties. The Chief Justice of India may also invite
practicing law before any court in the territory of a retired judge of the Supreme Court or a retired
India (Article 124(6) and (7)). judge of the High Court having the qualification
Judges of the Supreme Court are to be to be a judge of the Supreme Court, to sit and act
paid such salaries as may be determined by as a judge of the Supreme Court for such period
Parliament by law (Article 125). This is done by as he deems necessary. This too can be done
the High Court and Supreme Court Judges with the previous consent of the President and
(Conditions of Service) Act as amended from also of the person to be so appointed (Articles
time to time. In addition, to salary, the judges 127 and 128).
are allowed sumptuory allowances, rent free POWER AND JURISDICTION OF THE
furnished residences, telephone, water, COURT:
electricity, medical and other facilities exclusive Article 129 provides that the Supreme
of allowances and privileges like travelling Court shall be a court of record and shall have
expenses within the country, pension etc. all the powers of such a court. Being the highest
When the office of the Chief Justice of court of the land, its proceedings, acts and
India is vacant or when the Chief Justice is decisions are kept in record for perpetual
unable to perform the duties of his office due to memory and for presentation as evidence, when

83
need be, in support of what the law is. Being a the Finance Commission (Article 280) and
court of record implies that its records can be adjustment of certain expenses and pensions
used as evidence and cannot be questioned for between the Union and the States (Article 290).
54
their authenticity in any court. Recovery of damages against the Government of
Court of record also means that it can India cannot be claimed by a State before the
punish for its own contempt. But this is a Supreme Court under Article 131. The Article
summary power, used sparingly and under does not cover such ordinary commercial
pressing circumstances. It does not inhibit matters between the Union and the States. 56
genuine and well intentioned criticism of court Also, a dispute to be so brought before the
and its functioning. Fair and reasonable criticism Supreme Court must involve a question, whether
of a judicial act in the interest of public good of law or fact, on which the existence or extent
does not constitute contempt. of a legal right depends.
The Supreme Court has original, Under the new Article 139A inserted by
appellate and advisory jurisdiction. Original the 44th Amendment in 1978, the Supreme
jurisdiction means the power to hear and Court may transfer to itself cases from one or
determine a dispute in the first instance. The more High Courts if these involve questions of
Supreme Court has been given exclusive law or of great importance. Also, the Supreme
original jurisdiction which extends to disputes Court may transfer cases from one High Court to
(a) between the Government of India and one or another in the interests of justice.
more States e.g. State of West Bengal v. Union The original jurisdiction of the Supreme
of India,55 (b) between the Government of India Court also extends to cases of violation of the
and one or more States on one side and one or fundamental rights of individuals and the Court
more States on the other, (c) between two or can issue several writs for the enforcement of
more States. However, this jurisdiction shall not these rights (Article 32). It is a unique feature of
extend to a dispute arising out of a treaty, our Constitution that in principle, any individual
agreement etc. which is in operation and can straightaway approach the highest court in
excludes such jurisdiction (Article 131). The case of violation of his fundamental rights.
jurisdiction of the Supreme Court may also be The appellate jurisdiction of the
excluded in certain other matters, e.g. inter State Supreme Court extends to civil, criminal and
water disputes (Article 262), matters referred to constitutional matters. In a civil matter, an
appeal lies to the Supreme Court from any
54
. Daphtary v. Gupta, AIR 1971 SC 1132;
56
Namboodripad v. Nambiar, AIR 1970 SC 2015 . Union of India v. State of Rajasthan (1984) 4
55
. AIR 1963 SC 1241 SCC 238

84
judgment, decree or final order of a High Court appeals shall be subject to rules made by the
if the High Court certifies under Article 134A Supreme Court and to such other conditions as
that a substantial question of law of general the High Court may decide. The grant of the
importance as to the interpretation of the certificate by the High Court for appeals in
Constitution is involved and the matter needs to criminal cases to the Supreme Court depends on
be decided by the Supreme Court (Articles 132- an evaluation whether the case involves a
134). substantial question of law and its interpretation
Considering an appeal under Article on which the Supreme Court is urgently required
133, the Supreme Court held in P.K. Dave v. to pronounce its opinion and whether it would
People's Union of Civil Liberties57 that the High result in grave injustice to the accused if he is
Court should refrain from using intemperate denied the opportunity of an appeal to the
language as part of judicial discipline while Supreme Court.
commenting upon the conduct of another Under Article 136, the Supreme Court,
individual particularly when that individual is at its discretion, may grant special leave to
not before the court. appeal from any judgment, decree,
In criminal cases, an appeal to the determination, sentence or order, in any cause or
Supreme Court shall lie if the High Court (a) has matter passed or made by any court or tribunal
reversed an order of acquittal of an accused in the territory of India. These powers of the
person and sentenced him to death, or (b) has Supreme Court to grant special leave to appeal
withdrawn for trial before itself any case from are far wider than the High Courts' power to
any court subordinate to its authority and has in grant certificates to appeal to the Supreme Court
such trial convicted the accused person and under Article 134. The Supreme Court can grant
58
sentenced him to death (Article 134). special leave against judgments of any court or
Under Article 134(1)(c) an appeal tribunal in the territory, except the military
against a decision of a High Court can be filed courts, and in any type of cases, civil, criminal
before the Supreme Court if the High Court or revenue. But, the Supreme Court has itself
certifies under Article 134A that the case is a fit said that it will grant special leave to appeal only
one for appeal to the Supreme Court. But the in cases where there has been gross miscarriage
proviso to sub-clause (c) lays down that such of justice or where the High Court or Tribunal is
found to have been wrong in law. If the
57
. AIR 1996 SC 2166 judgment of the court below shakes the
58
. Ram Kumar v. State of M.P., AIR 1975 SC 1026;
Padda Narayana v. State of U.P., AIR 1975 SC
1252

85
conscience and shocks the sense of justice, The President may also seek the opinion
Supreme Court shall interfere.59 of the Supreme Court, through a similar
Article 137 provides for the Supreme reference on any treaty, agreement, covenant,
Court having the power to review its own engagement, sanad or other similar instrument
judgments and orders. which had been entered into or executed before
Article 143 of the Constitution confers the commencement of this Constitution, and has
upon the Supreme Court advisory jurisdiction. continued in operation thereafter.
The President may seek the opinion of the Under Article 138, the Supreme Court
Supreme Court on any question of law or fact of shall have such further jurisdiction and powers
public importance on which has thinks it with respect to any of the matters in the Union
expedient to obtain such an opinion. On such List as Parliament may by law confer. It shall
reference from the President, the Supreme have such jurisdiction and powers with respect
Court, after giving it such hearing as it deems fit, to any matter as the Government of India and the
may report to the President its opinion thereon. Government of any State may by special
The opinion is only advisory, which the agreement confer, if the Parliament by law
President is free to follow or not to follow. The provides for the exercise of such jurisdiction and
first such reference was made in the Delhi Laws powers by the Supreme Court. This enlarges the
case 60. A recent instance was of President Abdul jurisdiction of the Supreme Court and provides it
Kalam seeking (in August 2002) advice of the with very special jurisdiction to hear cases of
Supreme Court under Article 143 in connection most urgent nature directly and in its original
with the controversy between the Election jurisdiction for speedy disposal.
Commission and the Government on elections in Article 139 lays down that Parliament
Gujarat. The issues related to the limits on the may by law confer on the Supreme Court power
powers of the Election Commission under to issue directions, orders or writs in matters not
Article 324, the impact of Article 174 on the already covered under Article 32. Under Article
jurisdiction and powers of the Commission and 140, Parliament may by law supplement the
whether the Commission' could recommend powers of the Supreme Court. Law declared by
promulgation of President's rule in a State. the Supreme Court is binding on all courts in
India vide Article 141.61 But no law can be taken
59
. Haripada Dey v. State of West Bengal, AIR 1965
SC 757; Matru v. State of U.P., AIR 1971 SC
61
1050; Ram Saran v. CT.O., AIR 1962 SC 1326; . Vineet Narain v. Union of India, AIR 1998 SC
Muniswamy v. Ranganathan, (1991) 2SCC 139; 889; Dwarikesh Sugar Industries Ltd. v. Prem
Mahesh v. State of Delhi, (1991) Cr LJ 1703 (FB) Heavy Engineering Works (P) Ltd., AIR 1997 SC
60
. (1951) SCR 7 2477

86
to have been declared where no reasons are court of the land to finally pronounce upon the
given. Also, what is binding is the principle or legality or otherwise of a legislative act in so far
the ratio of the decision and not findings on as it conforms, or does not conform, to the
62
facts, opinions or arguments. Decrees and provisions of the fundamental law, i.e. the
orders of the Supreme Court shall be enforceable Constitution of the land. Our Constitution very
throughout India and civil and judicial largely but not entirely follows the U.s. practice
authorities shall act in aid of the Supreme Court in this regard. The Constitution being the
(Articles 142 & 144). fundamental law of the land, every legislative
For purposes of giving effect to the enactment, whether of the Union or that of
directions and decisions of the Supreme Court, States must conform to this fundamental law
all authorities, civil and judicial, in the territory except that in India, after a law is declared
of India, have been made subordinate to the unconstitutional, in most cases, the Constitution
authority of the Supreme Court inasmuch as all can be amended to take care of the judicial
these are required to "act in aid of the Supreme interpretation and make the law permissible.
Court" (Article 144). The Supreme Court may Cases are often filed before the Supreme
from time to time, and with the approval of the Court by a State Government, or by an affected
President, make rules for regulating generally private individual or a party, claiming that in
the practice and procedure of the Court. The enacting a particular law, the concerned
officers and staff of the Supreme Court are government exceeded its jurisdictional limit with
appointed by the Chief Justice of India or such regard to the division of powers under the
other judge or officer of the court as he may Seventh Schedule. While reviewing such
direct (Articles 145 146). Article 147 clarifies enactment the Supreme Court will examine
that references to interpretation of the whether jurisdictional limits have been
Constitution shall cover interpretation of the transgressed. Incorporation of a Chapter on
Government of India Act 1935, Indian Fundamental Rights in the Constitution makes
Independence Act 1947 etc. judicial review specially relevant. Article 12
Judicial Review guarantees fundamental rights against all State
Judicial review as it has evolved in the action. And 'State' under this Article has been
United States 1j11eans the power of the highest defined to include the Government and
Parliament of India and the Government and the
62
. Supreme Court Employees v. Union of India, AIR
1991 SC 334; Ramesh v. Union of India, AIR Legislature of each of the States and all local or
1990 SC 560; C.R. T. v. S.E. W., AIR 1993 SC other authorities within the territory of India or
43; Krishan v. Union of India, (1990) 4 SCC 207
(FB) under the control of the Government.

87
 Article 13 declares all laws inconsistent territorial jurisdiction, directions, orders, or writs
with or in derogation of the fundamental rights including writs in the nature of habeas corpus,
to be void to the extent of inconsistency. Up to mandamus, prohibition, quo warranto and
1967, the Supreme Court accepted the view that certiorari, or any of them for the enforcement of
an Act amending the Constitution was not 'Law' any of these rights.
in the definition of Article 13(2). But, in the DUE PROCESS OF LAW VS. ACCORDING
Golaknath case, the Supreme Court ruled by a TO THE PROCEDURE ESTABLISHED BY
majority judgment that an Act amending the LAW
Constitution was also 'law' under this definition The US Constitution (Constitutional
and therefore subject to judicial review. The Amendments) provides that a man may not be
Constitution (Twenty-fourth Amendment) Act, deprived of his right to liberty and property
1971 inserted clause 13(4) in the Constitution, except according to due process o£1aw. The
laying down that an Amendment to the Indian Constitution, however, lays down that a
Constitution is not 'law' under the definition of man may not be deprived of his rights to liberty
Article 13(2). In the Keshvanand Bharti case, the except according to the procedure established by
Supreme Court upheld this position. law. The due process of law gives wide scope to
Article 32 in the Chapter on the Supreme Court to grant protection to the
Fundamental Rights specifically confers the rights of its citizens. It can declare laws violative
power of judicial review on the Supreme Court. of these rights void not only on substantive
Under this Article every citizen has a right to grounds of being unlawful, but also on
move the Supreme Court by appropriate procedural grounds of being unreasonable. Our
proceedings for the enforcement of the rights Supreme Court, while determining the
conferred in Chapter III. The Supreme Court can constitutionality of a law, however was expected
hear the petition in its original jurisdiction. The to examine only the substantive question, i.e.,
Supreme Court has been given the power to whether the law is within the powers of the
issue directions, orders or writs in the nature of authority concerned or not. It was not expected
habeas corpus, mandamus, prohibition, quo to go into the question of its reasonableness,
warranto and certiorari, whichever may be suitability or policy implications.
appropriate, for the enforcement of any of the The Supreme Court pronounces -its
rights conferred. judgment on a specific case through a specific
Under Article 226, State High Courts petition. It does not give its opinion or advice on
have been given similar power, i.e., the power to a general reference. Generally, there should be
issue to any person or authority, within its an aggrieved person who petitions the Court to

88
challenge the constitutionality of the statute there were a large number of labourers working
which has adversely affected his rights. He has in such quarries under "inhuman and intolerable
to show that he has sustained or is in immediate conditions" and many of them were bonded
danger of sustaining some direct injury as a labourers. The petitioners entreated that a writ
result of the enforcement of the statute, and that be issued for proper implementation of the
the injury complained of is justiciable. various provisions of the Constitution and
PUBLIC INTEREST LITIGATION Statutes with a view to ending the misery,
In the historic judgment in the Judges' suffering and helplessness of those labourers.
Transfer case, the seven judge Constitution The court treated the letter as a writ petition and
Bench of the Supreme Court held that any appointed a Commission consisting of two
member of the public even if not directly advocates to visit these stone quarries, make an
involved but having "sufficient interest" can enquiry and report to the court on the matter.
approach the High Court under Article 226, or in In Lakshmi Kant Pandey v. Union of
case of breach of fundamental rights the India,65 a writ petition was filed on the basis of a
Supreme Court, for redressal of the grievances letter complaining malpractices indulged in by
of the persons who cannot move the Court social organisations and voluntary agencies
because of "poverty, helplessness or disability or engaged in the work of offering Indian children
socially or economically disadvantaged to foreign parents. It was alleged that in the
position". The Court can be approached even guise of adoption, children of tender age were
through a letter in such a case. 63 After this not only being exposed to a long dreadful
judgment, it has been open to public minded journey to distant countries at great risk to their
individual citizens or social organizations to lives but also to uncertainty as to their shelter
seek judicial relief in the interest of the general and future. Chief Justice EN. Bhagwati laid
public. down certain principles and norms to ensure the
In Bandhua Mukti Morcha v. Union of welfare of the children and directed the
India64, an organisation dedicated to the cause of Government and various agencies dealing with
release of bonded labourers informed the the matter to follow them.
Supreme Court through a letter that they In recent years, under what has come to
conducted a survey of the stone quarries situated be called judicial activism, the Supreme Court
in Faridabad District of Haryana and found that has issued directions to control pollution, to
check the evil of child prostitution, to revive a
63
. S.P. Gupta v. President of India, AIR 1982 SC
149
64 65
. AIR 1984 SC 803 . ((1987) 1 SCC 667

89
sick company to protect the livelihood of 10,000 providing all the facts and proof against the
employe1s, to look into the danger to safety in constitutionality of the statute lies with the
building a dam, to segregate the children of petitioners.
prostitutes from their mothers, to! provide Doctrine of Severability
insurance to workers in match factories, to While interpreting the statute, the court
protect the Taj Mahal from environmental has to decide whether the law as a whole or only
pollution etc. 66 However, it has been held that some parts thereof attract unconstitutionality.
non-justiciable political matters cannot be The court can declare a law voids in part as well,
brought before the court under the guise of if the facts so warrant.
public interest litigation.67 Locus stundi to file a Doctrine of Progressive interpretation
petition depends on the facts as they exist. Even The Supreme Court, in interpreting the
a journalist may file a writ petition if the case Constitution, has been guided by the doctrine of
falls in the category of public interest litigation. progressive interpretation i.e., it has taken the
On the other hand, if personal interest litigation ever changing socio legal context in view while
is sought to be fought as public interest interpreting the Constitution.
litigation, person instituting such litigation may Effect of a law declared unconstitutional
be made to pay the costs. The Court should not Under Article 141, a law declared by the
allow an unscrupulous person to vindicate his Supreme Court shall be binding on all courts
68
personal grudge in the garb of public interest. within the territory of India. Thus, if the
Presumption in favour of Constitutionality Supreme Court declares a law unconstitutional,
The presumption is always in favour of whether on grounds of legislative competence,
constitutionality of an enactment. The burden of or of being violative of fundamental rights, the
order shall be binding on law courts in the
66
. Subhash v. State of Bihar, AIR 1991 SC 420; territory of India. Such law shall be totally
Vishal v. Union of India, (1990) 3 SCC 318;
Workers of Rohtas Industries Ltd. v. Rohtas ignored and shall not be implemented in
Industries Ltd., AIR 1990 SC 491; Tehri Baandh subsequent proceedings. 69 Independence of the
v. State of U.P, (1991) 1 SCC 121; Gaurav Jain
v. Union of India, AIR 1990 SC 292; Mehta v. Judiciary: In a representative democracy,
State of TN., AIR 1991 SC 417; M.e. Mehta v. administration of justice assumes special
Union of India, AIR 1997 SC 734.
67
. Maharshi v. the State, AIR 1990 All. 52. significance in view of the rights of individuals
68
. Rugmani v. Achutha, AIR 1991 SC 983; which need protection against executive or
Bholanath v. State of U.P (1990) Supp SCC 151;
$ubhash v. State of Bihar, AIR 1991 SC 420;
ehhetriya Pradushan v. State of T.N., AIR 1991 69
. Star Co. v. Union of India, AIR 1987 SC 179;
SC 417; Chetriya Samiti v. State of U.P (1991) I Assistant Collector v. Dunlop (1985) 1 SC 260;
SCJ 130. Gourya v. Thakur, AIR 1986 SC 1440

90
legislative interference. This protection is given or more States or for two or more States and a
by making the judiciary independent of the other Union territory (Articles 214 and 231).
two organs of the government and supreme in its Like the Supreme Court, each High
own sphere. An independent and supreme Court is also to be a Court of record and of
judiciary is also an essential requisite of a original and appellate jurisdiction with all the
federal polity, wherein there is a constitutional powers of such a court including the power to
division of powers between the federal punish for its contempt (Article 215).
government and governments of the constituent Judges of the High Court were
units and a functional division of powers appointed by the President after consultation
between the executive, legislature and judiciary. with the Chief Justice of India, the Governor of
Also, an independent and impartial judiciary is the State and in case of appointment of all
an essential requisite for ensuring human rights judges other than the Chief Justice, the Chief
and protecting democracy. Only an independent Justice of the High Court. It was held in S.P
judiciary can act effectively as the guardian of Gupta v. Union of India (AIR 1982 SC 149) that
the rights of the individual and that of the all the three functionaries were to be given equal
Constitution. There are many devices in the importance in the process of consultation.
Indian Constitution which ensure the Thereafter, we had the Supreme Court verdict in
independence of the Courts, for example, the the Advocates-On-Record case and the advisory
constitutional provisions in regard to the opinion.
appointment and removal of judges, security of To be appointed a High Court judge, a
tenure, salaries and service conditions, salaries person must be a citizen of India with ten years'
and allowances of judges being a charge on the service in a judicial office or ten years'
Consolidated Fund, recruitment and appointment experience as a High Court advocate. On
of their own staff by the Supreme Court, appointment, every High Court judge must take
debarring the judges of the Supreme Court from an oath of office. Every High Court judge shall
practicing before any Court in India after hold office until he attains the age of 62. He
retirement, the power to punish for contempt etc. cannot be removed from his office except in the
manner provided for removal of a judge of the
THE HIGH COURTS Supreme Court. Further, to ensure the
The Constitution provides for a High independence of the office of a High Court
Court for each State. Parliament may, however judge, it is laid down that after being a
establish by law a common High Court for two permanent judge of a High Court, a person shall
not plead in any court in India except the

91
Supreme Court or other High Courts. Every law relating to armed forces-in the area of its
High Court judge is entitled to a salary and jurisdiction (Article 227).
allowances as may be settled by Parliament by Where any High Court is satisfied that a
law. case pending in the lower courts involves a
Judges may be transferred from one substantial question of law as to the
High Court to another by the President after interpretation of the Constitution, it may
consulting the Chief Justice of India (Article withdraw the case and either itself decide it or
222). However, the Supreme Court has held that determine the said question of law and return the
judicial review is necessary to check case to the Court for determination (Article
arbitrariness and that a High Court judge can be 228).
transferred only on public interest and that only High Court has full control over its
70
the judge affected can question it. In the staff. The salaries and allowances of the judges
Advocates case, the Supreme Court decided that and of the High Court staff are all charged on
in the matter of transfer of judges as well, the the Consolidated Fund of the State.
views of the Chief Justice of India will be given Appointments of officers and staff of a High
primacy and respect, (AIR 1994 SC 266). The Court are made by the Chief Justice of the Court
President may appoint an acting Chief Justice or by such other judge or officer of the Court as
for a High Court. Also, in case of need, the he may decide. The terms and conditions of
President may appoint additional and acting service of the staff and officers of the Court
judges of the High Court for a period not should appropriately be settled by rules made by
exceeding two years. The Chief Justice of a the Chief Justice and approved by the President
High Court may, with the consent of the (Article 229). The jurisdiction of a High Court
President, appoint a retired judge to sit and act may be extended to or excluded from a Union
as a judge (Articles 215, 217 224A). Territory (Article 230).
Every High Court shall consist of a Article 226 lays down that every High
Chief Justice and such other judges as the Court shall have power throughout the territory
President may deem necessary to appoint from under its jurisdiction to issue to any person or
time to time (Article 216). Each High Court has authority directions, orders or writs including
powers of superintendence over all the courts writs of habeas corpus, prohibition, mandamus,
and tribunals-other than those set up under any quo warranto and certiorari or any of them for
the enforcement of the fundamental rights or for
70
. Union of India u. Sankal Chand, AIR 1977 SC any other purpose. Thus, while the Supreme
2328; K. Ashok Reddy v. Gout of India, JT
(1994) I S C 40 Court's writ jurisdiction extends only to cases of

92
violation of fundamental rights, the High Courts It needs to be remembered that the
under Article 226 enjoy much wider powers and remedy through a writ in cases other than those
can issue writs in all cases of breach of any of violation of fundamental· rights is not a
right. This becomes obvious from the use of the normal one and is not expected to be granted as
term /I for any other purpose". The High Court a matter of routine. It is an extraordinary remedy
may set aside an illegal order, may declare the which can be expected in special circumstances
law or the right, may order relief by way of, for and only under the discretion of the Court.
example, refund of illegal tax etc. Just as the law Judiciary is not supposed to lay down policy and
declared by the Supreme Court is binding on all no court or tribunal can compel the governments
courts in India, that declared by the High Court to change its policy involving expenditure.73
is binding on all subordinate courts within the The power to issue writs has been vested
State or within the territory covered by the in the Supreme Court and the High Courts with a
jurisdiction of the High Court.71 view to ensure quicker justice and early relief to
In appeals by special leave against the persons whose rights are violated with impunity
Patna High Court orders in writ petitions and who would suffer irreparably if a: ready and
alleging large-scale misappropriation of public speedy remedy is not made available without
funds to the extent of several hundred crores of going into avoidable technicalities. There are
rupees in the Animal Husbandry Department five well-known writs.
(Fodder Scam), the Supreme Court directed the Habeas Corpus literally means a demand
High Court to ensure that a fair, honest and to produce the body. It applies in a case where a
complete investigation was completed by the person is alleged to have been illegally detained.
CBI and all persons against whom a prima facie The issuance of the writ means an order to the
case for trial is made out were identified and put detaining authority or person to physically
on trial in accordance with law. The High present before the Court the detained person and
Court's jurisdiction extended to examining the show the cause of detention so that the Court can
manner of investigations and considering the determine its legality or otherwise. If the
72
question of extension of time. detention is found to be illegal, the detained
person is set free forthwith. Since now, after the

71 73
. State of Orissa v. Madan Gopal (1952) SCR 28; . Himmat Lal Shah v. State of U.P., AIR 1954 SC
Rambhadraiah v. Secretary, AIR 1981 SC 1653; 403; Abraham v. ITO, AIR 1961 SC 609; Bhopal
Desai v. Roshan, AIR 1976 SC 578; State of M.P. Sugar Industry v. ITO, AIR 1967 SC 549; State of
v. Bhailal, AIR 1964 SC 1006 Rajasthan v. Karam Chand, AIR 1965 SC 913;
72
. Union of India v. Sushil Kumar Modi, AIR 1997 Union of India v. Tejram, (1991) 3 SCC 11;
SC 314. Kartar Singh v. State of Punjab (1994) 2 SC 423

93
44th Amendment, Article 21 cannot be of prohibition is not issued against
suspended even during the proclamation of administrative agencies. It is available only
Emergency, this becomes a very valuable writ against judicial and quasi judicial bodies.
for safeguarding the personal liberty of the Certiorari lies against judicial and quasi
individual. judicial authorities-courts and tribunals-and
While the Supreme Court can issue the means 'to be informed'. When, for example, a
writ of habeas corpus only against the State in tribunal acts without jurisdiction or in excess of
cases of violation of fundamental rights, the it and issues an illegal order, that order can be
High Court can issue it also against private quashed by a writ of certiorari. Such a writ may
individuals illegally or arbitrarily detaining any lie even against an administrative body affecting
other person. individual rights.74
Mandamus is a command to act lawfully Quo Warranto is a question asking 'with
and to desist from perpetrating an unlawful act. what authority or warrant'. The writ may be
Where A has a legal right which casts certain sought to clarify in public interest the legal
legal obligations on B, A can seek a writ of position in regard to claim of a person to hold a
mandamus directing B to perform its legal duty. public office. An application seeking such a writ
Mandamus may lie against any authority, may be made by any person provided the office
officers, government or even judicial bodies that in question is a substantive public office of a
fail to or refuse to perform a public duty and permanent nature created by the Constitution or
discharge a legal obligation. The Supreme Court law and a person has been appointed to it
may issue a mandamus to enforce the without a legal title and in contravention of the
fundamental right of a person when its violation Constitution or the laws.
by some governmental order or act is alleged. Besides writs, the High Courts under
The High Courts may issue this writ to direct an Article 226 may also issue other directions and
officer to exercise his constitutional and legal orders in the interests of justice to the people.75
powers, to compel any person to discharge
duties cast on him by the Constitution or the THE SUBORDINATE COURTS
statute, to compel a judicial authority to exercise The Governor in consultation with the
its jurisdiction and to order the Government not High Court appoints the district judges. A
to enforce any unconstitutional law. person who is not already in Government
Prohibition is issued by a higher Court Service should have at least seven years'
to a lower Court or tribunal and is intended to 74
. Union of India v. Nambudri (1991) 2 VJSC 302.
prohibit it from exceeding its jurisdiction. Writ 75
. T.C. Basappa v. Nagappa, AIR 1954 SC 440

94
experience at the bar to become eligible for the judges, and increasing the retirement age of
position of a district judge (Article 233). judges, the Constitution Commission (NCRWC)
Article 233A inserted by the twentieth inter alia recommended:
Amendment Act validated the appointments of (i) Adequate training to presiding officers of
and judgments etc. delivered by certain district courts and a systematic assessment of the
judges (233A). training needs of judicial personnel at
Appointment of persons other than different levels
district judges to the judicial service of a State (ii) Delivery of judgments after the conclusion
shall be made by the Governor in accordance of the case ordinarily within 90 days
with rules made in that regard. Besides the State (iii) Award of exemplary costs in appropriate
Public Service Commission, the High Court has cases of abuse of law
to be consulted in the matter of such (iv) Preparation of a strategic plan by each High
appointments (Article 234). Court for time bound clearance of arrears in
The administrative control of the High courts within its jurisdiction. No case to
Court over the district courts and other lower remain pending for more than a year
courts is full inasmuch as postings, promotions (v) Union and State laws to be made for an
and grant of leave etc. to any person belonging effective scheme of compensation to
to the judicial service of a State and holding any victims of crime.
post inferior to the post of a judge is vested in
the High Court (Article 235).76
Article 236 is the interpretation clause
and explains terms like district judge, judicial
service etc. while Article 237 empowers the
Governor to apply the provisions regarding
subordinate courts to any class or classes of
magistrates in the State.
Judicial Reforms
Apart from suggesting a National
Judicial Commission for the appointment of

76
. Tej Pal v. State of U.P. (1985) 3 SCC 604; State
of Assam v. Ranga Mohammed, AIR 1967 SC
903.

95
 MODULE - 05
RELATIONS BETWEEN UNION AND THE STATES

Article 1 of our Constitution describes When the Commonwealth of India Bill

India as a "Union of States". When the British came up for discussion in the British House of
power was established in India it was highly Commons, the Government spokesman Malcolm
centralized and unitary. To hold India under its Hailey, among other things, significantly said
imperial authority, the British had to control it that some kind of federation was inevitable as
from the Centre and ensure that power remained the ultimate objective to be kept in view. The
centralized in their hands, A strong central problems of princely states and of British
authority was for the British both an imperial commercial interests were also raised as grounds
and an administrative necessity. The Charter Act for the continuation of a strong central authority
of 1833 carried the process of centralization in under the direct control of the British masters.
India to an extreme degree by depriving the Both the Simon Commission (1927-29) and the
Governments of Madras and Bombay of all Butler Committee (1927-30) visualized, even
legislative powers and concentrating them in the though as a distant ideal, a federal Union for the
Governor-General-in-Council at Calcutta. This whole of India.
act also expressly vested in the Governor- The Government of India Act of 1935
General-in-Council the superintendence, proposed to set up a federal polity in India, with
direction and control of the whole civil and a central government and the Provinces deriving
military Government of India. their jurisdiction and powers by direct
The Government of India Act, 1919, devolution from the Crown. The Federation
provided for a considerable measure of envisaged by the 1935 Act never came into
devolution of authority to the provinces. The being. The Provincial autonomy part of the 1935
Joint Committee on Constitutional Reforms in Act was put into operation. Since a limited
1934 observed: Notwithstanding the measure of responsible Government was established only at
devolution on the provincial authorities which the provincial level, the nationalists naturally
was the outcome of the Act of 1919, the asked for more powers for provincial
Government of India is and remains in essence a legislatures. The experiment was, however
unitary and centralized Government, with the short-lived.
Governor General-in-Council as the keystone of In any case, the country as a whole
the whole constitutional edifice. continued to be ruled under the 1919 Act by a

96
central authority until 1947. And, since under President of the Constituent Assembly
the 1919 Act, there was a central government, a emphasizing that the "soundest framework for
central legislature, a system of central laws etc., the Constitution was a federation with a strong
even after the new Constitution, the bureaucracy Centre". The report said that the severe
perhaps could not discard the colonial hangover limitation on the scope of central authority in the
and the use of these terms continued. Cabinet Mission's Plan was a compromise
When the Constituent Assembly first accepted by the Assembly much against its
met in 1946 and early 1947, the idea was to have judgment of the administrative needs of the
a federation with a Centre having limited country in order to accommodate the Muslim
powers. Before the Union Constitution League. The Union Powers Committee was
Committee could transact any worthwhile unanimous in its view that it would be injurious
business, the Mountbatten Plan of 3 June 1947 to the interests of the country to provide for a
was announced. All hopes of preserving the weak central authority which would be
unity of India vanished and the partition of the incapable of ensuring peace, of coordinating
country on communal lines became a firm vital matters of common concern, and of
decision. As was expected, a decisive swing speaking effectively for the whole country in the
followed in favour of a strong Centre. The international sphere. Meanwhile, 600 and odd
Union Constitution Committee and the princely states were integrated with the
Provincial Constitution Committee decided, at a emerging Indian Union. As a result, the number
joint meeting on 5 June, that in view of the 3 of State units in the Indian Union was brought
June announcement, the limitations imposed by down to manageable proportions.
the Cabinet Mission's plan on the form of the In the context of these developments,
constitution no longer existed. Once partition the Drafting Committee decided in favour of
had become a reality, there was no need to describing India as a Union, although its
appease the Muslim League and restrict the Constitution might be federal in structure. The
powers of the Union Government. The Union emphasis on India being a Union was to convey
Constitution Committee meeting of 6 June 1947 the fact that it was not the result of a compact or
tentatively decided that the Constitution should agreement between the constituent units but a
be a federal structure with a strong Centre, and declaration by the Constituent Assembly
that there should be three exhaustive lists with deriving its authority from the one people of
residuary powers vesting in the Centre. India. Further, the conceptualization was clearly
On 5 July 1947, the Union Powers intended to convey the federal nature of the
Committee presented a second report to the polity but with a subordinate position to the

97
States and structural functional balance in favour between the object and the State.78 Laws made
of the supremacy of the Union. The point was by Parliament, however, cannot be questioned
upheld by the Supreme Court in West Bengal v. on grounds of extra territorial operation (Article
77
Union of India . 245). The Seventh Schedule to the Constitution
The predominant concern of the embodies three lists; viz. the Union List, the
founding fathers as also of the various State List and the Concurrent List consisting of
Commissions and Committees appointed since 97, 66 and 47 items respectively. Even after the
Independence to consider reorganization of changes in the Schedule brought about by
States or Union-State relations-the JVP Constitution Amendment Acts, the numbers of
Committee, the Dar Commission, the States entries in the three lists have remained the same.
Reorganization Commission, the Rajamannar Where some entry in full or in part is omitted
Committee, the Sarkaria Commission, etc.-has (e.g. entry 33 in the Union List), the omission
been that of the unity and integrity of India. The has been indicated by putting stars (***) and
SRC report concluded: indicating in the footnote the name and number
It is the Union of India which is the of the relevant Amendment Act. Similarly,
basis of our nationality. States are but limbs of where a new entry is added, it is given a
the Union, and while we recognize that the limbs supplementary number by alphabets A, B, C,
must be healthy and strong it is the strength and etc. e.g. entry 2A in the Union List.
stability of the Union and its capacity to develop Amendments in the three lists have been
and evolve that should be the governing effected by the third, sixth,-seventh, fifteenth,
consideration of all changes in the country. thirty-second, forty-second and forty-sixth
Legislative Relations amendments. But, the most far reaching changes
Article 245 to 255 contain a charter of were made by the seventh and the forty-second
the distribution of legislative powers between amendments.
the Union and the States. Parliament may make Article 246 lays down that the Union
laws for the whole or any part of India. The Parliament would have exclusive jurisdiction to
Legislature of a State may make laws for the make laws in regard to items in the Union List,
whole or any part of the State. Any State law the State Legislature would have exclusive
would be void if it has extra territorial operation power to make laws in respect of items in the
unless sufficient nexus can be shown to exist State List and both the Union and State

78
. State of Bombay v. RMDC, AIR 1957 SC 699;
Tata Iron & Steel Co. v. State of Bihar, AIR 1958
77
. AIR 1963 SC 1241 SC 452.

98
Legislatures could legislate in the area of items laws with respect to any matter enumerated in
included in the Concurrent List. In case of any the State List, Parliament is competent to make
inconsistency between laws made by Parliament laws on that matter for the whole or any part of
and those made by the Legislature of a State in India. Such a resolution remains valid for a year;
respect of items in the Concurrent List, the it can be extended by another year by a
Union law shall prevail and the State law shall subsequent resolution. Any law passed under
be void to the extent of inconsistency except this provision would cease to be in force within
where a State law is reserved for the six months after the end of the year.
consideration of the President and receives his Again under Article 250, Parliament is
assent (Article 254). In the three fold empowered to make laws on any item included
distribution of legislative powers, residuary in the State List for the whole or any part of
powers of legislation have been left with the India while a Proclamation of Emergency is in
Union (Article 248). Also, Parliament has been operation. The maximum duration of validity of
given the power to make any law for the whole such laws will be six months after the expiry of
or any part of the country to give effect to any the Emergency.
international treaty, agreement, convention or In case of inconsistency between laws
decision (Article 253). made by Parliament under Articles 249 and 250
The Union List consists of subjects and laws made by State Legislatures, the law
which are of common interest to the Union and made by Parliament shall prevail and the State
with respect to which uniformity of legislation law shall be inoperative to the extent of
throughout the Union is essential. Subjects repugnancy while the law made by Parliament
which allow for diversity of interest and remains in effect (Article 251). Under the
treatment are included in the State List and Doctrine of Pith and Substance, any
matters in which uniformity of legislation jurisdictional conflict between the "Qnion and
throughout the Union is desirable but not the State/ s in regard to their legislative
essential are included in the Concurrent List. competence can be settled by the court
Although the States are given exclusive powers ascertaining the substance of the matter relating
over the subjects in the State List, there are two to an item in one list or the other.
exceptions to this general rule. Under Article According to Article 252, two or more
249, if the Rajya Sabha declares by a Resolution State Legislatures by passing a resolution may
supported by two-thirds of the members present ask Parliament to make laws on any matter in
and voting that it is necessary or expedient in the the State List. Such laws can be extended to
national interest that Parliament should make

99
other States provided the concerned State over Inter-State rivers and provisions for
Legislatures pass resolutions to that effect. adjudication of any Inter-State water disputes
ADMINISTRATIVE RELATIONS were designed to take away a whole host of
Articles 256 to 263 seek to regulate possibilities of friction between Union and
administrative relations between the Union and States and between States themselves (Article
the States. It is common in federal systems that 262). In fact the Constitution-makers did not
the administrative relations between the Union want anything to be left to chance; hence the
and the States are fraught with difficulties. The arrangement for Inter-State Councils. Article
Constitution of India seeks to achieve a smooth 263 empowers the President to establish an
working relationship between the two levels. It Inter-State Council to enquire into and advise
provides that the executive powers of the State upon Inter-State disputes and matters of
Government are to be exercised in such a way as common interest between States or between the
to ensure compliance with the laws made by Union and the States and make
Parliament. The Union Executive is also recommendations for better coordination of
empowered to give such directions to a State, as policy and action.
may appear to the Government of India, to be Under Article 258, the President may
necessary for the purpose. with the consent of a State Government entrust
Article 257 similarly provides that the to that Government or its officers functions in
executive power of every State shall be so relation to any matter to which the executive
exercised as not to impede the exercise of the power of the Union extends. Similarly, under
executive power of the Union and the Union Article 258A the Governor of a State may with
may issue necessary directions in that regard and the consent of the Union Government entrust to
for protection of railways and maintenance of that Government or to its officers functions in
means of communication of national or military relation to any matter to which the executive
importance. Any extra expenditure incurred by power of the State extends.
the State for the purpose of fulfilling Central FINANCIAL RELATIONS
directives is to be reimbursed by the Centre to In regard to the financial relations
the State. The provision in Article 261, directing between the Union and the States too, one can
that full faith and credit shall be given to public find the general tendency of Indian federalism
acts, records and judicial proceedings of the for centralization. The Union may be said to be
Union and the States in all parts of the Indian financially more powerful but given the nature
territory, adds a lot to the smooth working of of the country's needs for growth through
Union State relations. Parliamentary control planned economy this may be not only very

100
desirable but entirely necessary. The States, The Constitution Commission
however, have their own resources; the Union (NCRWC) has recommended:
provides substantial amounts to the States by • River water disputes being important
way of grantsin-aid, share proceeds of certain disputes between two or more States and/ or
taxes, etc. The provision for the appointment of the Union, they should be heard and
a Finance Commission every five years to disposed by a bench of not less than three
examine the distribution of tax proceeds Judges and if necessary, a bench of five
between the Union and States and to determine Judges of the Supreme Court for the final
the principles which should govern the grants- disposal of the suit.
in-aid is patterned on the Commonwealth Grants • Appropriate Parliamentary legislation
Commission in Australia and has contributed to should be made for repealing the River
the generally smooth financial relationship Boards Act, 1956 and replacing it by another
between the Union and the States. comprehensive enactment under Entry 56 of
List 1. The new enactment should clearly
UNION VS. CENTRE define the constitution of the River Boards
In the field of Union-State relations, it and their jurisdiction so as to regulate,
needs to be specially stressed that a great deal of develop all control all inter-State rivers
damage and misinterpretation has been caused keeping intact the adjudicated and the
as a result of the wrong use of the term 'Centre recognized rights of the States through
State' instead of 'Union State'. The Constitution which the inter-State river passes and their
does not use the term 'Centre'; actually 'Central inhabitants. While enacting the legislation,
government', 'Central legislature', 'Central laws' national interest should be the paramount
etc. are an unfortunate hang-over from the days consideration as inter-State rivers are
of the centralized government during the 'material resources' of the community and
colonial rule. 'Centre' and 'Union' create very are national assets.
different images and connote concepts very • In resolving problems and coordinating
different. 'Centre' is a point in the middle of the policy and action, the Union as well as the
circle while 'Union' is the whole circle. The States should more effectively utilize the
relationship between the Union and the States is forum of inter-State Council.
that between the whole and the parts and not
between the centre of authority and its
peripheries.

101
FINANCE, PROPERTY, CONTRACTS A scheme for the distribution of
AND SUITS revenues between the Union and the States is
Article 265 upholds the salutary laid down in Articles 268-273. The proceeds of
democratic principle of 'No taxation without all the taxes levied by the State are fully retained
representation' and categorically declares that no by the concerned State's themselves while taxes
taxes can be imposed without the authority of in the Union List may be in part allotted to the
law. Also, it adds, no taxes can be 'collected' States.
except as under the authority of law. Thus, taxes that belong exclusively to
Consolidated Fund: Subject to provision of a the Union include Customs, Corporation Tax,
Contingency Fund and allocations to the States, taxes on capital value of assets, surcharge on
all revenues received or loans etc. raised by the income tax, etc. and taxes in respect of matters
Government of India shall constitute a in the Union List.
Consolidated Fund of India. Similarly, there will Taxes belonging exclusively to the
be a Consolidated Fund for each of the States. States include land revenue, Stamp Duty on
All other money received by the Union or State items included in the State List, taxes on
Governments shall be credited to the public passengers and goods carried on inland
accounts of the Union or the State concerned. waterways, lands and buildings, mineral rights,
No amount can be withdrawn from the animals and boats, road vehicles,
Consolidated Fund without the authority of law. advertisements, consumption of electricity,
This restriction does not apply to public luxuries, amusements etc., taxes on entry of
accounts (Article 266). goods into a local area, State tax tolls, fees in
Contingency Fund: To meet contingent respect of matters in the State List and taxes on
situations where under some expenditure may be professions, trades, etc. not exceeding Rupees
required to be incurred emergently, Article 267 2500 per annum (Article 276 and List 2, Seventh
authorises Parliament and State Legislatures to Schedule). Stamp duties on Bills of exchange
form their contingency funds. The Contingency etc. and duties of excise on medicinal and toilet
Fund is placed at the disposal of Union or State preparations mentioned in the Union List shall
Government (President or Governor) to enable it be levied by the Union but collected and
to make advances for meeting unforeseen appropriated by the States and form part of their
expenses pending authorization by the revenues except in the case of Union Territories
legislature. (Article 268).
Distribution of Revenues between the Union Taxes on sale or purchase of goods other
and the States than newspapers and taxes on consignment of

102
goods shall all be levied and collected by the Bihar, Orris a and West Bengal in lieu of export
Government of India but shall be assigned to the duty on jute and jute products (Article 273).
States concerned and distributed among the Grants may be given to any State in need as may
States as may be decided by Parliament by law. be deemed essential (Article 275). Under Article
The proceeds attributable to Union Territories, 282, the Union or a State may make a grant for
however, shall form part of the Consolidated any public purpose irrespective of that purpose
Fund of India (Article 269 as amended by the being outside the legislative jurisdiction of the
80th Amendment during 2000). Union or State concerned.
There are some taxes and duties in the Article 274 requires that in case of Bills
Union List which are levied and collected by the affecting taxation in which States are interested,
Union but their proceeds are distributed between in effect, prior recommendation of the President
the Union and the States. After a Finance would be necessary.
Commission has been constituted, Presidential The State Legislatures may by law levy
Order in regard to distribution of proceeds from taxes on professions, trades, callings or
income tax etc. shall issue after considering the employment. The total amount of these taxes
Commission's recommendations (Articles 270- payable by an individual shall not exceed Rs.
271).79 2500 per annum. The provision would not affect
New Article 268A added by the 88th the power of Parliament to make laws in respect
Constitution Amendment provides for levy of of income from professions etc. (Article 276)
taxes on services to be collected and Finance Commission: Article 280 provides for
appropriated by the Government of India and the the appointment by the President of a Finance
States. New entry 92C inserted in the Union List Commission consisting of a Chairman and four
under the Seventh Schedule reads "Taxes on members every five years. The Commission
Services". shall make recommendations to the President in
Articles 273, 275 and 282 provide for regard to the distribution of proceeds between
three kinds of grants-in-aid and the the Union and the States and to suggest
circumstances in which these may be extended principles which should govern the grants-in-aid
to the States by the Union. Thus, grants may be to the States from the Consolidated Fund of
given by the Union to the States of Assam, India. The President shall cause the
recommendations of the Commission and action
79
. Article 272 providing for Union excise duties that taken thereon to be laid before each House of
"may be" distributed between the Union and the Parliament (Articles 280-281).
States, was omitted w.e.f. 9 June 2000 by the 80th
Amendment.

103
 Miscellaneous Financial Provisions: and consumption of goods and services
Custody etc. of Consolidated Funds, throughout India. GST would replace respective
Contingency Funds and moneys credited to taxes levied by the central and state
public accounts are to be regulated by governments.
Parliament and each State Legislature concerned Timeline of GST
(Article 283). • 1986: Vishwanath Pratap Singh, Finance
Suitors' deposits and other moneys Minister in Rajiv Gandhi’s government,
received by public servants and courts shall be proposed in the Budget a major overhaul of
paid into the public accounts of the Union or the the excise taxation structure. This was
State concerned as the case may be (Article similar to GST in a theoretical sense.
284). • 2000: Initiating discussions on GST,
Property of the Union shall be exempt Vajpayee government appoints an
from taxation by the States and the property of Empowered Committee headed by the then
the States shall be similarly exempt from finance minister of West Bengal Asim
taxation by the Union (Articles 285 and 289). Gupta.
Articles 286-288 place restrictions as to • 2004: Vijay Kelkar, then advisor to the
imposition of tax by the States on consumption Finance Ministry, recommends GST to
or sale of electricity or water and on the sale or replace the existing tax regime.
purchase of goods outside the State or in case of • Feb 28, 2006: GST appears in the Budget
export or import. speech for the first time. Finance Minister
Article 290 provides for adjustments to Chidambaram sets an ambitious task of
be made between the Union and State implementing GST by April 1, 2010.
Governments in respect of payment of certain • Feb 28, 2007: Chidambaram said in his
expenses of any Court or Commission and Budget speech that the Empowered
pensions of persons in service before the Committee of finance ministers will
Constitution. Article 290A provides for certain prepare a road map for GST.
sums to be paid annually to Devaswom Funds of • April 30, 2008: The Empowered
Travancore and Tamil Nadu from the Committee submits a report titled ‘A
Consolidated Funds of these States. Model and Roadmap Goods and Services
Tax (GST) in India’ to the government.
GOODS AND SERVICES TAX (GST) • Nov 10, 2009: Empowered Committee
The Goods and Services Tax (GST) is a submits a discussion paper in the public
comprehensive indirect tax on manufacture, sale, domain on GST welcoming debate.

104
• Feb 2010: Government launches project RajyaSabha where it lacks sufficient
for computerisation of commercial taxes. number.
Finance Minister Pranab Mukherjee defers • Aug 3, 2016: RajyaSabha passes the
GST to April 1, 2011. Constitution Amendment Bill by a two-
• March 22, 2011: Constitution Amendment thirds majority. Note: GST constitutional
Bill (115th) to GST introduced in the amendment bill needs to passed by at least
LokSabha 50% of state legislatures to be
• March 29, 2011: Bill referred to Standing st
implemented. Assam is 1 State to pass
Committee on Finance. GST bill.
• Nov 2012: Finance minister and state • 1 July 2017: GST to be applicable across
ministers decide to resolve all issues by India.
Dec 31, 2012. What is GST?
• Feb 2013: Declaring government’s resolve • It is a destination-based taxation system.
to introduce GST, the finance minister • It has been established by
makes provisions for compensation to the 101st Constitutional Amendment Act.
states in the Budget. • It is an indirect tax for the whole country
• Aug 2013: The standing committee on the lines of “One Nation One Tax” to
submits a report to Parliament suggesting make India a unified market.
improvements. But the bill lapsed as the • It is a single tax on supply of Goods and
15th LokSabha was dissolved. Services in its entire product cycle or life
• Dec 18, 2014: Cabinet approval for the cycle i.e. from manufacturer to the
Constitution Amendment Bill (122nd) to consumer.
GST. • It is calculated only in the “Value addition”
• Dec 19, 2014: The Amendment Bill at any stage of a goods or services.
(122nd) in the LokSabha • The final consumer will pay only his part
• May 6, 2015: The Amendment Bill of the tax and not the entire supply chain
(122nd) passed by the LokSabha. which was the case earlier.
• May 12, 2015: The Amendment Bill • There is a provision of GST Council to
presented in the RajyaSabha decide upon any matter related to GST
• May 14, 2015: The Bill forwarded to joint whose chairman in the finance minister of
committee of RajyaSabha and LokSabha India.
• Aug 2015: Government fails to win the
support of Opposition to pass the bill in the

105
Taxes subsume in GST 7. Entertainment Tax which are not levied by
GST would replace the following taxes the local bodies; i.e. panchayats,
currently levied and collected by the Centre: municipalities and District councils of
1. Central Excise duty autonomous districts can impose taxes on
2. Excise Duty levied under the Medicinal and entertainment and amusements
Toilet Preparations (Excise Duties) Act 8. Taxes on general advertisements
1955, 9. Taxes on lotteries, betting and gambling
3. Additional Excise Duties (Goods of Special 10. State cesses and surcharges insofar as
Importance) they relate to supply of goods or
4. Additional Excise Duties (Textiles and services
Textile Products) GST does not subsume stamp duties and
5. Additional Customs Duty (commonly custom duties.
known as Countervailing duties or CVD) What taxes at center and state level are
6. Special Additional Duty of Customs (SAD) incorporated into the GST?
7. Service Tax At the State Level
8. Cesses and surcharges in so far as they • State Value Added Tax/Sales Tax
relate to the supply of goods and services • Entertainment Tax (Other than the tax
9. Taxes on the sale or purchase of levied by the local bodies)
newspapers and on advertisements • Octroi and Entry Tax
published therein. • Purchase Tax
State taxes that would be subsumed within the • Luxury Tax
GST are: • Taxes on lottery, betting, and gambling
1. State VAT/ Sales Tax At the Central level
2. Central Sales Tax (levied by the Center and • Central Excise Duty
collected by the States) • Additional Excise Duty
3. Luxury Tax • Service Tax
4. Octroi • Additional Customs Duty (Countervailing
5. Entry Tax i.e, taxes on the entry of goods Duty)
into a local area for consumption, use or • Special Additional Duty of Customs
sale therein. (other than those in lieu of
octroi)
6. Purchase Tax

106
AN OVERVIEW OF THE CONSTITUTION Schedule, under Article 368 (2) the latter mode
(ONE HUNDRED FIRST AMENDMENT) of the amendment was followed.
ACT, 2016 Amendments:
The One Hundred and First Amendment The 101st Amendment Act inserts
of the Constitution of India, officially known as repeals and amends certain parts of the
The Constitution (One Hundred and First Constitution.
Amendment) Act, 2016, introduced a national The following Articles have been
Goods and Service Tax (GST) in India from inserted-
1stApril 2017. The GST is a Value Added Tax Article 246A:
(VAT) and is proposed to be a comprehensive (1) Notwithstanding anything contained in
indirect tax levied on manufacture, sale and Articles 246 and 254, Parliament, and, subject to
consumption of goods as well as services at the clause (2), the Legislature of every State, have
national level which will replace all indirect the power to make laws with respect to goods
taxes levied on goods and services by a single and services tax imposed by the Union or by
tax on the supply, right from the manufacturer to such State.
80
the consumer. (2) Parliament has exclusive power to make laws
This Amendment Act, introduced as the one with respect to goods and services tax where the
Hundred and Twenty-Second Amendment Bill, supply of goods, or of services, or both take
to the Constitution of India. There are three place in the course of inter-State trade or
ways of amending the Constitution: commerce.
• Bills passed by a simple majority Explanation—The provisions of this Article,
• Bills passed by a special majority of 2/3rd of shall, in respect of goods and services tax
the members present and voting. referred to in clause (5) of Article 279A, take
• Bills passed by a special majority along effect from the date recommended by the Goods
with ratification of legislatures of ½ of the and Services Tax Council.81
states. By this Article, the State Legislatures
Since the present amendment to the now have the power to make individual laws
Constitution also included amendments to with respect to GST imposed by the Centre and
Chapter I of Part XI and the Lists in the Seventh to make necessary arrangements for

80
. F. Lourdunathan& P. Xavier, A study on the
81
implementation of goods and services tax (GST) . Ministry of Law and Justice (Legislative Deptt.),
in India: Prospectus and challenges, 3(1) The Constitution (One Hundred and First
INTERNATIONAL JOURNAL OF APPLIED Amendment) Act, 2016, II THE GAZETTE OF
RESEARCH 626, 626-627 (2016) INDIA, Sep 8, 2016, at pp. 1-2.

107
implementation of the same in inter-state trade, amount shall not form part of the Consolidated
while the Centre has exclusive power to make Fund of the State.
GST laws in case of inter-state trade. Both the (5) Parliament may, by law, formulate the
Union and States in India now have concurrent principles for determining the place of supply,
powers to make law with respect to goods & and when a supply of goods, or of services, or
services. both take place in the course of inter-State trade
Article 269A: or commerce.82
(1) Goods and services tax on supplies in the In case of inter-state trade, the amount
course of inter-State trade or commerce shall be collected by the Centre is to be apportioned
levied and collected by the Government of India between the Centre and the States as per
and such tax shall be apportioned between the recommendations of the GST Council. That is
Union and the States in the manner as may be under GST, where the center collects the tax, it
provided by Parliament by law on the assigns the state’s share to state, while where the
recommendations of the Goods and Services state collects the tax, it assigns center’s share to
Tax Council. center. Such proceeds shall not form a part of
Explanation—For the purposes of this clause, the Consolidated Fund of India.
the supply of goods, or of services, or both in the Article 279A:
course of import into the territory of India shall (1) The President shall, within sixty days from
be deemed to be the supply of goods, or of the date of commencement of the Constitution
services, or both in the course of inter-State (One Hundred and First Amendment) Act, 2016,
trade or commerce. by order, constitute a Council to be called the
(2) The amount apportioned to a State under Goods and Services Tax Council.
clause (1) shall not form part of the (2) The Goods and Services Tax Council shall
Consolidated Fund of India. consist of the following members, namely:
(3) Where an amount collected as a tax levied (a) the Union Finance Minister:- Chairperson;
under clause (1) has been used for payment of (b) the Union Minister of State in charge of
the tax levied by a State under Article 246A, Revenue or Finance:- Member;
such amount shall not form part of the (c) the Minister in charge of Finance or
Consolidated Fund of India. Taxation or any other Minister nominated
(4) Where an amount collected as the tax levied by each State Government:- Members.
by a State under Article 246A has been used for
payment of the tax levied under clause (1), such
82
. Supra p. 2

108
(3) The Members of the Goods and Services Tax Nagaland, Sikkim, Tripura, Himachal
Council referred to in sub-clause (c) of clause Pradesh, and Uttarakhand; and
(2) shall, as soon as may be, choose one amongst (k) any other matter relating to the goods and
themselves to be the Vice-Chairperson of the services tax, as the Council may decide.
Council for such period as they may decide. (5) The Goods and Services Tax Council shall
(4) The Goods and Services Tax Council shall recommend the date on which the goods and
make recommendations to the Union and the services tax be levied on petroleum crude, high-
States on— speed diesel, motor spirit (commonly known as
(d) the taxes, ceases, and surcharges levied by petrol), natural gas and aviation turbine fuel.
the Union, the States and the local bodies (6) While discharging the functions conferred by
which may be subsumed in the goods and this Article, the Goods and Services Tax Council
services tax; shall be guided by the need for a harmonized
(e) the goods and services that may be structure of goods and services tax and for the
subjected to, or exempted from the goods development of a harmonized national market
and services tax; for goods and services.
(f) model Goods and Services Tax Laws, (7) One-half of the total number of Members of
principles of the levy, apportionment of the Goods and Services Tax Council shall
Goods and Services Tax levied on supplies constitute the quorum at its meetings.
in the course of inter-State trade or (8) The Goods and Services Tax Council shall
commerce under Article 269A and the determine the procedure in the performance of
principles that govern the place of supply; its functions.
(g) the threshold limit of turnover below which (9) Every decision of the Goods and Services
goods and services may be exempted from Tax Council shall be taken at a meeting, by a
goods and services tax; majority of not less than three-fourths of the
(h) the rates including floor rates with bands of weighted votes of the members present and
goods and services tax; voting, in accordance with the following
(i) any special rate or rates for a specified principles, namely:
period, to raise additional resources during (l) the vote of the Central Government shall
any natural calamity or disaster; have a weight of one-third of the total
(j) special provision with respect to the States votes cast, and
of Arunachal Pradesh, Assam, Jammu and (m) the votes of all the State Governments
Kashmir, Manipur, Meghalaya, Mizoram, taken together shall have a weight of two-

109
 thirds of the total votes cast, in that collected and appropriated by the Union and the
meeting. States.
(10) No act or proceedings of the Goods and Amended Articles:-
Services Tax Council shall be invalid merely by 1. The residuary power of legislation of
reason of— Parliament under Article 248 is now subject to
(n) any vacancy in, or any defect in, the Article 246A.
Constitution of the Council; or 2. Article 249 has been changed so that
2 rd
(o) any defect in the appointment of a person as if /3 majority resolution is passed by Rajya
a Member of the Council; or Sabha, the Parliament will have powers to make
(p) any procedural irregularity of the Council necessary laws with respect to GST also in the
not affecting the merits of the case. national interest.
(11)The Goods and Services Tax Council shall 3. Article 250 has been amended so that the
establish a mechanism to adjudicate any dispute Parliament will have powers to make laws
— related to GST during the emergency period.
(a) between the Government of India and one 4. Article 268 has been amended so that excise
or more States; or duty on medicinal and toilet preparation will be
(b) between the Government of India and any omitted from the state list and will be subsumed
State or States on one side and one or more in GST.
other States on the other side; or 5. Article 269 would empower the Parliament to
(c) between two or more States, arising out of make GST related laws for inter-state
the recommendations of the Council or trade/commerce.
implementation thereof.83 6. Article 270 now provides for collection and
This Article provides for the constitution of distribution of tax to be done according to
a GST Council along with its powers and Article 246A.
positions. The process of decision-making also 7. Currently, under Article 271, GST has been
has to be done through voting. exempted from being part of the Consolidated
Repealed Articles:– Fund of India.
Article 268A 8. Article 286 has been amended to include the
This sec., as inserted by Section 2 of the supply of goods and/or services under its ambit
Constitution (Eighty-eighth Amendment) Act, than just sale or purchase of goods.
2003 relating to Service tax levied by Union and 9. Article 366 now includes the definitions of
Goods and Service Tax, Services and State.
83
. Supra p. 3-4

110
10. Article 279A has also been brought States in case of any loss due to the
under the ambit of Article 368.84 implementation of GST to five years. However,

Amended schedule- no redressal against the advice or decisions of

the GST council has been provided to the States.
The Sixth Schedule has been
Special powers have been given to the president
amended to give power to the District
to make such necessary adaptations and
Councils to levy and collect taxes on
modifications by order within a period of three
entertainment and amusements. (para 8, sub-
years for removing any difficulty that may arise.
para3)
Finally, for the transitional period, it has been
The Seventh Schedule has been amended thus- provided that laws inconsistent with the above
1. In the Union List, petroleum crude, high- provisions shall continue to be in force until
speed diesel, motor spirit (petrol), natural repealed by the legislature, or until a year has
gas, and aviation turbine fuel, tobacco and elapsed, whichever is earlier.
tobacco products have been removed from BENEFITS OF GST
the ambit of GST and have been subjected For Central and State Governments
to Union jurisdiction. Newspapers, • Simple and Easy to administer: Because
advertisements, and Service Tax have been multiple indirect taxes at the central and
brought under GST. (entries 84, 92, 92C) state levels are being replaced by a single
2. In the State List, petroleum crude, high- tax “GST”. Moreover, backed with a robust
speed diesel, motor spirit (commonly end to end IT system, it would be easier to
known as petrol), natural gas, aviation administer.
turbine fuel and alcoholic liquor for human • Better control on leakage: Because of
consumption have been included, except better tax compliance, reduction of rent
where the sale is in course of inter-State or seeking, transparency in taxation due to IT
International trade and commerce. Entry tax use, an inbuilt mechanism in the design of
and Advertisement taxes have been GST that would incentivize tax compliance
removed. Taxes on entertainment only to be by traders.
included to the extent of that imposed by • Higher revenue efficiency: Since the cost
local bodies. (entries 52, 54, 55, 62) of collection will decrease along with an
Compensation and Transition increase in the ease of compliance, it will
Upon recommendation by GST Council, lead to higher tax revenue.
the Parliament will provide compensation to the

84
. Supra p. 5

111
For the Consumer GSTN?
• The single and transparent tax will provide • GSTN is registered as a not-for-profit
a lowering of inflation. company under the companies Act.
• Relief in overall tax burden. • It has been formed to set up and operate the
• Tax democracy that is luxury items will be information technology backbone of the
taxed more and basic goods will be tax- GST.
free. • While the Central (24.5%) and the state
For the Business Class (24.5%) governments hold a combined
• Ease of doing business will increase due to stake of 49%, the remaining 51% stake is
easy tax compliance. divided among five financial institutions—
• Uniformity of tax rate and structure, LIC Housing Finance with 11% stake and
therefore, better future business decision ICICI Bank, HDFC, HDFC Bank and NSE
making and investments by the corporates. Strategic Investment Corporation Ltd with
• Removal of cascading effects of taxes. 10% stake each.
• Reduction in transactional cost will lead to • GSTN had awarded Infosys Ltd the
improved competitiveness. contract to develop the hardware and
• Gain to the manufacturer and exporters. software for GST.
• It is expected to raise the country GDP by • The idea behind GSTN was to set up an
2% points. entity that is equidistant from both the
PRINCIPLE OF GST? Central government and the state
• The Centre will levy and collect the Central governments, as it will advise both the
GST. Centre and the states on the information
• States will levy and collect the State GST technology network
on the supply of goods and services within Controversy around GSTN
a state. It is argued by some as a private
• The Centre will levy the Integrated GST company therefore not under government
(IGST) on the interstate supply of goods control. It may lead to a breach of tax data into
and services, and apportion the state’s private hands and manipulation of the same for
share of tax to the state where the good or the advantage of some corporates.
service is consumed. To this allegation, the Finance minister replied
• The 2016 Act requires Parliament to in the parliament that this arrangement was
compensate states for any revenue loss decided by the empowered committee of the
owing to the implementation of GST. previous government and the present

112
government has endorsed it by considering the 1. The Central Goods and Services Tax Act
fact that private professionals are required to 2017 (The CGST Act)
such high octane system. Further, he said that if 2. The Integrated Goods and Services Tax Act
in future there seem to be any problem with the 2017 (The IGST Act)
current structure then it can be changed through 3. The Union Territory Goods and Services
the GST Council debate and discussion. Tax Act 2017 (The UTGST Act)
Further, GSTN website clarifies that the 4. The Goods and Services Tax
strategic control over GSTN is with the (Compensation to the States) Act 2017 (The
government given the sensitivity of the role of Compensation Act)
GSTN and the information that would be 5. And a state GST will be passed by the
available to it. The strategic control of the respective state legislative assemblies.
government over GSTN is ensured through The major features of these Acts may be
measures such as the composition of the board, seen here.
mechanism of special resolution and • The 14th Goods and Services Tax (GST)
shareholders agreement, induction of Council Meeting, held at Srinagar, Jammu
government officers on deputation and and Kashmir on 18 May 2017 broadly
agreements between GSTN and governments. approved the GST rates for goods at nil rate,
GST Council 5%, 12%, 18% and 28% to be levied on
• It is the 1 Federal Institution of India, as per
st
certain goods. The Council has also broadly
the Finance minister. approved the rates of GST Compensation
• It will approve all decision related to taxation Cess to be levied on certain goods.
in the country. • On 3 June 2017 GST council declared that
• It consists of Centre, 29 states, Delhi and Natural or cultured pearls, precious or semi-
Puducherry. precious stones, precious metals, metals clad
• Centre has 1/3 voting rights and states have
rd
with precious metal, and articles thereof;
2/3rd voting rights. imitation jewellery; coin etc. would attract
• Decisions are taken after a majority in the 3% GST while rough diamond will attract
council. 0.25%.
For the implementation of GST, apart from Consequent to the GST Council’s
the Constitution Amendment Act, some other recommendation, the Cabinet in its meeting
statutes are also necessary. The following four on 30 August, 2017 approved promulgation
GST related Acts were passed by the Parliament of an ordinance to suitably amend the Goods
on 6 April 2017 and notified on 12 April 2017:

113
 and Services Tax (Compensation to States) to decide about the items and the criteria
Act, 2017, so as to increase the maximum that which item will fall into which tax
rate, at which the Compensation cess can be bracket. It may lead to lobbying. To this,
levied from 15% to 25% on certain motor the Finance minister has said that the
vehicles for transport of not more than decision will be taken by the GST Council
thirteen persons , including the driver, like only and after due diligence and most
SUVs. probably by the consensus.
• Further, a cess would be levied on certain 3) Multiple tax rates and brackets: The
goods such as luxury cars, aerated drinks, philosophical idea that GST means “One
pan masala and tobacco products, over and Nation one Tax” is currently diluted due to
above the rate of 28% for payment of multiple tax rates and brackets. To this, the
compensation to the States. Finance minister has said that since the
• However, which goods and services fall into target consumer of goods and services have
which bracket is still an enormous task to be different capabilities and therefore there
completed by the GST council. must be a system similar to the democratic
• Highest tax slab is pegged at 40%. lines where higher value consumer pays
more taxes.
ISSUES ARISEN OR UNRESOLVED 4) Power to impose tax taken away by
1) Not all items are covered: Taxation for Central Government from the
certain items such as Alcohol, Tobacco etc. Parliament: The Central GST Bill, 2017
are still not under the GST domain. States allows the central government to notify
argue that including them would hamper CGST rates, subject to a cap. This implies
their revenue and they would suffer a huge that the government may change rates
resource. However, some experts say that subject to a cap of 20%, without requiring
the real reason is the nexus of politicians the approval of Parliament. Under the
with some business class and high profile Constitution, the power to levy taxes is
lobbying. Further, the Finance minister of vested in Parliament and state legislatures.
India has said in the parliament that the Though the proposal to set the rates through
consensus to include alcohol and tobacco delegated legislation meets this
under GST regime is possible in requirement, the question is whether it is
foreseeable future. appropriate to do so without prior
2) Decision criteria for the tax parliamentary scrutiny and approval.
bracket: There are apprehensions that how

114
5) Confusion regarding the location of business of deciding prices for goods and
consumption: Under GST, both state and services.
Centre can tax the services based on 7) Confusion regarding the control over
their location of consumption. Now the taxation: To avoid dual control, the GST
confusion arises since the general rule to council has reached a compromised
determine the location of the recipient is his formula. 90 percent of tax assesses with an
location or address on record; there are annual turnover of Rs 1.5 crore or less, will
specific rules for various services such as be assessed by states and the rest by the
telecom, property, transportation, etc. This Centre. For those with a turnover of over Rs
means that while a service may be 1.5 crore, the states and the Centre will
consumed across multiple states, the tax share it equally. However, this ‘solution’
revenue would be attributed to the state has its own set of issues. For example, if
where the recipient is registered or his an entity with a turnover of less than Rs 1.5
office is located. This could lead to higher crore in one year, posts a turnover of Rs 1.5
tax attributed to states that have more crore in the following financial year, who
registered offices. For example, suppose a would be the new authority to take over the
company is located in Bangalore and assessment? And, how will the existing
advertises its products in the Kolkata investigations, if any, against the entity be
edition of a newspaper, which has its addressed, and by whom? “There are a lot
registered office in Delhi. In this case, one of procedural issues, and if these issues are
may argue that the service is being finally not addressed properly, they would lead to
consumed in Kolkata. However, as the litigations.
recipient of services is in Bangalore, the tax 8) The issue of casual taxable person: If a
would accrue to Karnataka. person registered in one state moves to
6) Anti-Profiteering Clause: The government another state for a short period for some
is planning to set up an authority to see if business transaction – say to participate in a
any reduction in tax rates after GST is fair or exhibition, then that person would
passed on to the consumer by companies or have to get himself registered in that state
not. The industry and businesses are not for that period.
taking this idea kindly and they see it as a
backdoor entry of inspector raj. Experts say
that prices should be market determined
and no government authority has the

115
 MODULE - 06
CONSTITUTIONAL POSITION OF JAMMU AND KASHMIR

A. ARTICLE 370 OF THE CONSTITUTION the State with the Indian Union,85 and more and
Jammu and Kashmir is a constituent more provisions of the Constitution have been
State of the Indian Union, but its constitutional applied to it in course of time.
position, and its relation with the Central In 1950, when the Indian Constitution
Government, somewhat differ from that of the was on the anvil, the future picture of the
other States. relationship between India and the State was not
The instrument of accession signed by very clear due to many complications existing at
the Ruler of Jammu and Kashmir was accepted the time. Therefore, the Constitution contains
by the Governor-General of India on 27-10- Art. 370 which enables the constitutional
1947. Under this instrument, only three subjects- position of the State vis-avis the Indian Union to
external affairs, defence and communications- be defined from time to time without much
were surrendered by the State to the Dominion. difficulty.86
The two characteristic features of the special Article 370 makes "temporary
relationship are: provisions" with respect to the State. Article 370
(1) the State has a much greater measure of clearly recognizes the special position of the
autonomy and power than enjoyed by the other State of Jammu and Kashmir. Art. 370 makes
States; and Art. 1 of the Constitution which defines the
(2) the Centre's jurisdiction within the State is territory of the Union, and Art. 370 itself,
more limited than what it has with respect to the applicable to the State at once.
other States. Article 370(1)(b) limits the power of
Due to these special features not all the Parliament to make laws for the State to the
provisions of the Indian Constitution apply to following:(i) Those matters in the Union List
the State; some of the provisions apply, some do and the Concurrent List,4 as correspond to the
not apply at all, while others apply in a modified
85
. See, JAGOTA, Development of Constitutional
form. Relations between Jammu and Kashmir and India:
The constitutional position of the State 1950-1960, 2 JILI, 519 (1960); A.S. ANAND,
THE CONSTITUTION OF JAMMU &
has not remained static since it became a KASHMIR, (III Ed., 1998). Also, Md. Maqbool
v. State of J.K., AIR ]972 SC 963: (1972) 1 SCC
constituent unit of the Indian Union. It has been 536.
86
growing with time towards a closer affinity of . For comments on Art. 370, see, S.M.S.
Naqishbandi v. ITO, Salary Circle, AIR 1971 J &
K 120.

116
subjects specified in the State's Instrument of without modifications by order of the President.
Accession. Such an Order is not to be issued by the
The elaboration of these subjects in President-
terms of the entries in the two Lists is to be done (1) without consulting the State Government if
by the President by order in consultation with matters to be specified in the Order relate
the State Government. to those mentioned in the Instrument of
In the Instrument of Accession three Accession;
major heads have been mentioned, viz., defence, (2) without the concurrence of the State
foreign affairs and communications. Each of Government if the matters to be specified
these broad heads has a number of items which in the Order relate to matters other than
are also listed in the Instrument. those mentioned in the Instrument.
Besides the three major heads, a number Article 370(2) further provided that if
of ancillary matters have also been mentioned in the State Government gave its concurrence, as
the Instrument of Accession, e.g., election of the mentioned above, before the convening of the
President. It was necessary to identify those State Constituent Assembly, "it shall be placed
items in the Union and Concurrent Lists and this before such Assembly for such decision as it
task was left to the President to be performed by may take on". As the Constituent Assembly
him in consultation with the State Government. exists no more, Art. 370(2) has exhausted itself.
(ii) Such other subjects in the Union or In a way, Art. 370 empowers the
Concurrent Lists as the President may by order President to define the constitutional relationship
specify with the concurrence of the State of the State in terms of the provisions of the
Government. Indian Constitution, subject to the stipulation
This clause means that subjects other that he can do so with reference to the matters in
than those mentioned in the Instrument of the Instrument of Accession in consultation
Accession [as envisaged in (i) above] can be with, and with reference to other matters with
brought within the purview of Parliament. But the concurrence of, the State Government.
while in (i) above, only consultation with the The word 'modification' in Art. 370 is to
State Government is required, in (ii), the be given the widest amplitude. Thus, the
concurrence of the State Government has been President has power to vary, amend or modify a
stipulated. constitutional provision, in any way he deems
Article 370(1)(d) lays down that other necessary, while applying it to the State. The
provisions of the Constitution, besides the power to 'modify' is co-extensive with the power
above, can be applied to the State with or

117
to amend and is not confined to minor concurrence of the State Government, and when
alterations only. the President issues an order under Art. 370
Article 370 is a special provision for Thus, Art. 370 empowers the President
amending the Constitution in its application to to adapt the constitutional provisions applied or
the State of Jammu and Kashmir. Article 368) to be applied to the State of Jammu and Kashmir
does not curtail the power of the President under in the light of the situation existing in the State
Art. 370. Even a radical alteration can be made from time to time. This is a flexible arrangement
in a constitutional provision in its application to under which the constitutional position of the
the State. State can be defined from time to time.
The Supreme Court has refused to B. THE CONSTITUTION (APPLICATION
interpret the word 'modification' as used in Art. TO JAMMU & KASHMIR) ORDER, 1954
370(1) in any "narrow or pedantic sense". The Under Art. 370(1)(b)(ii), the
Supreme Court has observed on this point:87 Constitution (Application to Jammu and
"We are therefore of opinion that in the context Kashmir) Order, 1950, was promulgated by the
of the Constitution we must give the widest President of India in consultation with the
effect to the meaning of the word "modification" Government of Jammu and Kashmir. The Order
used in Art. 370(1) and in that sense it includes specified the matters with respect to which the
an amendment. There is no reason to limit the Union Parliament was to be competent to make
word "modifications" as used in Art. 370(1) only laws for the State.
to such modifications as do not make any The Order of 1950 was then replaced by
"radical transformation". an Order with the same title in 1954. This is the
Further, Art. 370 authorizes the basic Order which, as amended and modified
President to modify a constitutional provision from time to time, regulates the constitutional
not only when it is applied to the State for the status of the State.
first time, but even subsequently after it has been Today not only those provisions of the
applied.88 Indian Constitution which pertain to the matters
An amendment made to the Constitution does mentioned in the Instrument of Accession, but
not automatically apply to the State of Jammu many other provisions relating to several matters
and Kashmir. It can apply only with the not specified in the Instrument, apply to the
State. Briefly, the essentials of the constitutional
87
. Puranlal Lakhanpal v. Union of India, AIR 1961 position of the State are as follows.
SC 1519, 1521 : (1962) 1 SCR 688. (a) Provisions of the Constitution relating to the
88
. Sampat Prakash v. State of Jammu & Kashmir,
AIR ]970 SC 1118 : (1969) 1 SCC 562. Central Government apply to the State with

118
 a few modifications. The State has six is in pari-materia with the power of
members in the Lok Sabha elected directly other High Courts under Art. 226 with
by the people of the State. this difference, however, that the State
(b) The jurisdiction of the Supreme Court High Court can issue writs only for the
extends over the State except for Arts. 1359 enforcement of the Fundamental Rights
and 139. and not 'for any other purpose.'
(c) The State is governed under a Constitution (d) In the field of the Centre-State relationship,
of its own drafted by its Constituent the legislative power of Parliament vis-a-vis
Assembly. the State extends to the matters specified in
This Constitution came into force on List I excluding entries 8, 9, 34, 60, 79, 9716
January 26, 1957, and it is patterned closely on In a few other entries, such as (3, 67, 81),
the model of the Indian Constitution. Therefore, some modifications have been made in their
the provisions of the Indian Constitution relating application to the State. Parliament has no
to the State Governments (Legislature, residuary power vis-a-vis the State.
Executive and High Court) do not apply to the Originally List III was also made not
State except for the following provisions applicable to the State under the Order of
concerning the High Court Judges: 195418 But, subsequently, through amendments
(i) The Judges of the State High Court can of the 1954 order,19 the Concurrent List has
be removed from office in the same been made applicable to the State to some
manner as the Judges of any other High extent.
Court. Parliament can legislate for the State in
(ii) Restriction on retired High Court the Concurrent List except for entries 2,3,5 to
Judges to plead and act before any 10, 12 to 15, 17, 20, 21; 27, 28, 29, 31, 32, 37,
Court or authority except the Supreme 38, 40, 44. In entries 1, 30 and 45, slight
Court and other High Courts apply to modifications have been effected. The State List
the Judges of the State High Court. has been dropped in the State.
(iii) A Judge may be transferred to or from It means that Parliament can legislate
the State High Court after consultation with reference to the entries in List I and List III
with the Governor. (except those excluded) and all the rest of the
(iv) The State High Court has been given legislative power vests in the State Legislature.
power along with the Supreme Court of Parliament's power to legislate to
India to issue writs for the enforcement enforce a treaty is subject to the limitation that
of the Fundamental Rights. This power no decision affecting the disposition of the State

119
is 'to be made by the Government of India (i) The State is also bound to acquire or
without the consent of the State Government. requisition property for the Union if
(e) A Proclamation of Emergency under Art. required.
352(1) cannot have any effect in relation to (j) Within the ambit of its administrative
the State (except in regard to the distribution power, Centre can do all those things in the
of revenue) unless it has been made at the State which it can do in relation to the other
request or with the concurrence of the State States.
Government. (k) As regards the sharing of revenue between
A Proclamation can be made by the the Centre and the State, the general scheme
President under Art. 356 if he is satisfied that the applies?9 (l) Provisions relating to freedom
Government of the State cannot be carried on in of trade and commerce,30 services31 and
accordance with the provisions of the citizenship32 apply to the State.
Constitution of India, or the Constitution of the (l) The Ejection Commission has jurisdiction
State. When a Proclamation under Art. 356 is in over elections held in the State under its
operation, Parliament becomes entitled to Constitution. Like the rest of India, election
legislate for matters not enumerated in the Union petitions in the State are heard by the High
List. Court from where an appeal lies to the
No Proclamation under Art. 360 applies Supreme Court.
to the State. (m) No provisions regarding Minorities apply to
(f) The power of Parliament to re-organise the the State except those for the Scheduled
boundaries, etc., of the State is conditioned Castes and Backward Classes; seats are to
by the restriction that no Bill for such a be reserved in the Lok Sabha for the
purpose is to be introduced in Parliament Scheduled Castes.
without the consent of the State Legislature. (n) Provisions of the Constitution relating to the
(g) The executive power of the Centre vis-a-vis Official Language apply to the State only in
the State extends to the matters within the so far as they relate to-(i) the Official
Parliamentary legislative field. Language of the Union; (ii) the Official
The State is to exercise its executive Language of inter State and Central-State
power so as to ensure compliance with the laws communication; and (iii) the language of the
made by Parliament and as not to impede or Supreme Court proceedings.
prejudice the exercise of the executive power of (o) An amendment made to the Constitution
the Union. under Art. 368 does not take effect in the
(h) Art. 365 does not apply to the State.

120
 State unless applied by a Presidential order process of extending the various provisions of
under Art. 370(1)36 the Constitution to the State has been gradual
(p) Directive Principles of State Policy do not and as a result of consensus between the
operate in the State. Government of India and the State as dictated by
(q) Fundamental Rights operate in the State experience and mutual advantage of both.
with slight modifications, some of the On February 24, 1975, Prime Minister
important ones being: Indira Gandhi made a Statement on the future
1) The power of legislation regarding relationship between the State and the Indian
preventive detention v,ests in the State Union.4o The highlight of the Statement is that
Legislature alone and not in Parliament, this constitutional relationship will continue as
and Art. 22 stands modified to this hitherto, and that the extension of further
extent., provisions of the Constitution to the State will
2) The State Legislature, notwithstanding continue to be governed by the procedure
any Fundamental Right, has power to prescribed in Art. 370.
define persons who may be permanent C. STATUS OF ARTICLE 370
residents of the State and to confer on Article 370 has been characterized in the
them any special rights, or impose on Constitution as being of a temporary nature.
others any restrictions, as respects Article 370(3) says that the President, by public
employment under the State Government, notification, may declare that Art. 370 shall
acquisition of property within the State, cease to be operative, or shall be operative only
settlement in the State and right to with such exceptions, and modifications, and
scholarships provided by the State. from such date as he may specify. But before the
It will be apparent from the above that President can issue any such notification, the
from time to time through Presidential orders recommendation of the Constituent Assembly of
passed under Art. 370, a large number of the the "shall be necessary".
provisions of the Constitution have already Since the Constituent Assembly of the
become applicable to the State of Jammu and State exists no more, Art. 370(3) is no longer
Kashmir. The only condition precedent for the operative. Therefore, if any modification is to be
exercise of this power by the President is the made to Art. 370, recourse will have to be had to
concurrence of the State Government. There is Art. 368 regarding amendment of the
no limitation on the exercise of the power by the Constitution.
President in relation to one or more of the But, a moot point is whether any
remaining provisions of the Constitution. The amendment made to Art. 370 under Art. 368,

121
without the concurrence of, or consultation with, • Jammu and Kashmir legislative assembly
the State Government will be effective. The term is 6 years whereas its 5years for the
Constitution (Application to J & K) Order, 1950, states of India.
lays down that any amendment to the • The order of state of India are not valid in
Constitution does not apply to the State unless it Jammu and Kashmir.
is extended there- to by a Presidential Order • Parliament of India may makes laws in
under Art. 370(1) which again involves extremely limited areas in terms of Jammu
"concurrence of', or "consultation with", the and Kashmir.
State Government. • In Jammu and Kashmir if a women’s
D. ADVANTAGE OF ARTICLE 370 marries a person of any other state of India,
1. It has preserve and protect the ecology citizenship to the female ends.
environment and biodiversity in J&K to • If a women marries a man in other Indian
some extent. states she loses her citizenship whereas if
2. Government jobs are still available to any women marry a Pakistani she will be
residence of J&K. entitle to have a citizenship of Jammu and
3. Local brands are still running here due to Kashmir.
less competition. • Outsider cannot own a land in Jammu and
4. Maintains the status of J&K with union of Kashmir
India • RTI does not apply on Jammu and Kashmir,
5. Less crime rate and traffic but terrorist is RTE is not implemented, CBI does not
high which is the main negative issue. apply, Indian laws are not applicable
6. Less pollution as there are not very much Shariah law is applicable to women in
industries i.e. not giving any permission for Kashmir.
opening new business and industries. • There are no rights to panchayat in Kashmir,
7. Maintain the inland quality. minorities in Kashmir (Hindu, Sikh) does
8. Has to maintain Indian claims over Kashmir not get 16% reservation.
in world eye. • Indian parliament does not have any major
E. DISADVANTAGES OF ARTICLE 370 rights over Kashmir it can only control issue
Indian constitution deals with the special of defence, international relation and
status given to the state of J&K. communication.
• J&K citizen have dual citizenship. • Lack of medical facilities, no single private
• Jammu and Kashmir national flag is hospital in Jammu which include adjoining
different. districts.

122
• Terrorism in state is because of 370 and • The main problem is gender base, many
because Pakistan claims over Kashmir. claim to have a negative thought about the
• Lack of basic modern facilities like high Article 370 as it disqualifies women from
speed internet, 24 hours electricity and 24 the state of property rights.
hours of water supply. • However it is less known that the Article,
• Less competition makes the progress of itself was gender neutral but the definition
student slow and dull that means grow and of permanent resident in the state
development is low. constitution based on the notification issued
• No opportunity for state student to appear in in April 1927 and June 1932 during the
other state exam. Maharaja rule was thought to be
• No industrial sector is available. discriminatory.
• Jammu is always ignores in comparison to F. REASONS - WHY ARTICLE 370 BE
Kashmir just because it’s an international REMOVED
issue. 1. Temporary and Transition Provision Article
• It has hindered the progress of our state to a 370 was introduced under temporary and
large extent. transition provision, it is but still in
• Corruption is much more in J&K than from existence. So who will decide what was
others because of special status and laws. actually meant by the term temporary and
Only Muslim can become chief minister of transition provision.
J&K, no Hindu can become chief minister of 2. Does not fulfill the criteria of Section 5 of
J&K. the instrument of accession which says “The
• It has reduce the participation of non- terms of this my instrument of accession
Muslim community in politics and other shall not be varied by any amendment of the
fares. Act or the Indian Independence Act, unless
• Education has suffered a lot due to this. such amendments are accepted by me by
• Less GDP as well as revenue i.e. net income instrument supplement to this instrument”.
is less, growth is less, less jobs and 3. Encourages Separationist tendency As per
unemployment are the major problem due to the Article published in Indian republic,
this Article. Due to this youth can more Kahmiri locals do not think of them as part
participate in terrorism. of India and often asks people coming from
• Lack of control on government of India and different states to Kashmir, if they have you
their policy on our state. come from India. This shows that even the
concept of unity in integrity, which is one of

123
 the best attribute of India’s most cherished has struck down the discriminatory law
culture, is losing its meaning. regarding women’s Permanent Status after
4. It affects the economic development As per marrying a person who does not belong to
the provisions of Article 370 people from Kashmir and held that,” there is no provision
outside Kashmir cannot invest in Kashmir, in existing law dealing with the status of a
they cannot buy any property or carry on female Permanent Resident who marries a
any business. Where rest of the India enjoys non- resident person. The provision of
right to move freely and carry on trade in women losing their status of permanent
any part of India thereby developing India as resident after marrying outside the State
a whole, Kashmir due to restriction put by therefore did not have any legal basis”. But
Article 370 is closing doors of development the efforts of PDP Government led by
for itself. Mehbooba Mufti who tried to pass a bill
5. Permitting corruption - As we have CAG, named Permanent Resident
Lokpal, CBI to investigate corruption issues (Disqualification) Bill 2004 which says that
in other States of India, Kashmir due to if a women marries a person from outside
Article 370 does not come under these anti Kashmir will lose her permanent Resident
corruption bodies. When corruption is on its status and the same was well supported by
toll in India it becomes a very important Omar Abdulla’s party National Conference,
issue of debate that since the top most shows that the government of Jammu and
investigation bodies of India does not have Kashmir is in favour of such discrimination.
its operation in Kashmir, is Kashmir totally 7. Also, women in Kashmir do not enjoy same
a corruption free State and does not need property rights as men. In 21st century when
such authorities. whole world is talking about women
6. Restricts women rights According to the empowerment and her rights, it seems
Article published in F. Politics Dated Dec 2, Kashmir is still in stone ages, thereby
2013, with heading “Sorry Omar, It’s you restricting women’s rights.
who are ill-informed and not only Modi” 8. There is threat to Indian security It is well
The writer has tried to make out clearly the known to all that Pakistan is a great threat to
exact status of law on rights of Women India due to its deep involvements in
marrying outside Kashmir as far as their terrorism. The Article also gives Pakistan's
Permanent resident status is concerned. It citizens entitlement to Indian citizenship, if
mentions the Fact that in a historic case of he marries a Kashmiri girl. This is very
State of J & K v. Sheela Shawney The court sensitive issue and needs to be looked upon

124
 with great care and precautions. This way quake separating Kashmir from India. Such
we are welcoming terrorists thereby making statements and story does not give a sound
them our son in laws. How can this be footing to support Article 370. As this is
justified when terrorism is not only a something very unusual. Kashmir is part of
national issue of concern but global as well India only for the services mentioned in the
and more importantly when Kashmir is the Article otherwise not it seems to be very
eye of Pakistan right from the time of mean and selfish attitude. And the relation
Independence. between manmade Article causing natural
9. Chief Minister Omar Abdulla on Article phenomena like earthquake is also not
370. Chief Minister of Kashmir Shri. Omar digestible and acceptable.
Abdulla’s statements are no less than 10. Again as per the news published in Times of
threats. It is well known to all that law is a India especially mentioning the tweet by Mr.
dynamic concept and needs to get changed Abdulla “Mark my words and save this
with the expectation and need of the time. tweet – long after the Modi Govt. is distant
Then when he makes statements like, “we memory either J & K won’t be part of India
the people of J & K would like to or Art 370 will still exist” which was made
categorically tell BJP that it is not possible by his after The State Minister Mr. Singh
to withdraw Article 370 and any attempt by Said that they are open for debate over
anyone will be on our dead bodies”. As he Article 370, it seems that Mr. Abdulla is not
says that Article 370 forms the basis of even ready for an open discussion. Whereas,
Kashmir’s accession. But a very important if we look at the people’s opinion including
fact is that Article 370 is not as it was Kasmiri’s on one of the site maps of India.
framed it has been changed so many times com with a heading “What is your opinion –
with different Presidential orders only for Should the Govt. take a step to abolish
the benefit of the State. Now for the benefit Article 370 or not?”. Almost every person
of the Sate only if Article is removed than has given the pinion that Article 370 should
why Mr. Abdulla is making such statements. be removed. And Mr. Omar Abdulla seems
Also, as per the Article published in First to give only his opinion on Article 370 what
post, Dated 28th May 2014, where Mr. has he done to get opinion of each and every
Abdulla came up with a new story that he person living in J & K. where the voices of
has got an ancient stone and something is are people it’s only the politicians who are
written on it which means that if Article 370 shouting over Article 370.
is abrogated then it is going to cause earth

125
THE CONSTITUTIONAL (APPLICATION and Kashmir Sheikh Abdullah, which extended
TO JAMMU & KASHMIR) ORDER 1954. Indian citizenship to the ‘State subjects’ of
Both the Articles of the constitution i.e. Jammu and Kashmir.
Article 35 A and Article 370 concern the State The Presidential Order was issued
of Jammu and Kashmir, both of them being under Article 370 (1) (d) of the Constitution.
temporary provisions. The difference is with This provision allows the President to make
respect to their subject, where Article 35 A certain “exceptions and modifications” to the
protects the rights of the people with respect to Constitution for the benefit of ‘State subjects’ of
employment, property and aids by the state Jammu and Kashmir. So Article 35A was added
government whereas Article 370 protects and to the Constitution as a testimony of the special
grants special status to the sovereignty of the consideration the Indian government accorded to
state giving the power to make a separate set of the ‘permanent residents’ of Jammu and
laws to be applied for its governance. Kashmir.
Article 35A is a provision incorporated Article 35A is the result of the 1954 order.
in the Constitution giving the J&K Legislature a Article 35A – (The Article doesn’t find
power to decide who all are ‘permanent mention in any of the bare text of Constitution
residents’ of the State and confer on them published in INDIA, including the one kept in
special rights and privileges in public sector the Parliament) Saving of laws with respect to
jobs, acquisition of property in the State, permanent residents and their rights. —
scholarships and other public aid and welfare. Notwithstanding anything contained in this
The provision mandates that no act of the Constitution, no existing law in force in the State
legislature coming under it can be challenged for of Jammu and Kashmir, and no law hereafter
violating the Constitution or any other law of the enacted by the Legislature of the State –
land. a) defining the classes of persons who are, or
Background: shall be, permanent residents of the State of
Article 35A was incorporated into the Jammu and Kashmir; or
Constitution in 1954 by a Presidential order of b) conferring on such permanent residents any
the then President Rajendra Prasad on the special rights and privileges or imposing
advice of the Jawaharlal Nehru Cabinet. The upon other persons any restrictions as
controversial Constitution (Application to respects—
Jammu and Kashmir) Order of 1954 followed (i) employment under the State Government;
the 1952 Delhi Agreement entered into between (ii) acquisition of immovable property in the
Nehru and the then Prime Minister of Jammu State;

126
 (iii) settlement in the State; or Jammu and Kashmir fully into India” is one of
(iv) right to scholarships and such other the top priorities of the current government.
forms of aid as the State Government The present situation:
may provide, An NGO, We the Citizens, challenged
shall be void on the ground that it is Article 35A in Supreme Court in 2014 on
inconsistent with or takes away or abridges any grounds that it was not added to the Constitution
rights conferred on the other citizens of India by through amendment under Article 368. It was
any provision of this part.” never presented before Parliament, and came
So from this deciphering the provisions into effect immediately. In another case in SC,
of Article 35A, it is clear that – in September 2017 two Kashmiri women argued
1) It gives special rights to the “permanent that the state's laws, flowing from Article 35A,
residents” of the state where it empowers the had disenfranchised their children. which restrict
state legislature to define permanent the basic right to property if a native woman
residents and then give them special marries a man not holding a permanent resident
treatment, privileges and rights. This special certificate.
treatment is with respect to ’employment To find an effective solution to these
with the state government, acquisition of impending constitutional questions of law and to
immovable property in the state, settlement determine the rights of a a section of citizens
in the state, or right to scholarships and such aggrieved by the provisions of Article 35A the
other forms of aid as the state government Supreme Court has set up a three-judge bench to
may provide’. hear the matter in 2017.
2) By flipping through the pages of the Why is Article 35A in news now?
constitutional history of India we find it • The issue came up when a Kashmiri
interesting to note that this provision was woman, Charu Wali Khan filed a petition
enacted by a Presidential Order in 1954. to change the constitutional provision as she
Presidential Orders are issued with respect wanted succession rights in the state though
to the state of Jammu and Kashmir under she is settled outside the state.
Article 370, which is a temporary provision • This has led to a major controversy in the
in the Constitution as discussed earlier. state.
This clears the difference between them, • The state government filed a counter
also recently there have been various opinions petition, but the central government did not
and thoughts regarding the necessity of these do.
Articles in today’s’ time when “integration of

127
• The Central Government has submitted binding on all. This stand by the BJP has led
before the Supreme Court that it is ready to to rifts between the BJP and PDP.
discuss on scrapping of Article 35A which • The Supreme Court hinted at referring
does not allow people from outside the state petitions against Articles 370 and 35A of the
of Jammu & Kashmir to work, settle or own Constitution — which give special
property in the state. provisions to Jammu and Kashmir — to a
• The NDA Government wants to have a Constitution bench.
larger debate over the Article 35A • The top court said all petitions that demand
challenging the constitutional validity of the scrapping of the Articles should be heard
clause. together.
• An NGO, ‘We the Citizens’ have filed a writ Arguments against scrapping Article 35A
petition to strike down Article 35A. • Scrapping the Article 35A is seen as an
• The ruling party believes that the special assault on the special status of the Jammu
status, certain rights and privileges are and Kashmir by the state government.
enjoyed only by the residents of the state • Article 35A cannot be challenged on the
which has given rise to alienation and ground that they affect the fundamental
separatist identity to the people of Jammu rights of the other Indian Citizens.
and Kashmir. • The rights of the state legislature are not
• The provision does not allow people from unlimited and can be given only in the case
outside the state of Jammu & Kashmir to of – Employment, Property, Settlement and
work, settle or own property in the state. Scholarship.
Scholarships, forms of aid etc are also not • Kashmiris are apprehensive that such a
allowed to non-residents of the state. move would be dominated by the Hindu
What is Judiciary’s take on Article 35A? nationalist groups.
• Supreme Court was ready to have a • Former chief minister Omar Abdullah also
discussion on scrapping Article 35A while stated that this would create a bigger
the state government opposed such a move. agitation as was witnessed in 2008 over the
• The matter has been referred to three judge transfer of land to the Amarnath Shrine
bench and has been given a six-week Board.
deadline to settle the dispute.
• The state BJP leaders are vocal about
repealing the Article 35A. As the matter is
sub judice, the court’s decision should be

128
Arguments in favour of scrapping Article • The Article is drafted in Part XXI of the
35A Constitution: Temporary, Transitional and
• Article 35A was not a part of the original Special Provisions.
Constitution but was added later by a The State’s Constituent Assembly was
presidential order of 1954. empowered to recommend the Articles of the
• Article 370 is another matter of discussion Indian constitution to be applied to the state or to
as it is not permanent but a temporary abrogate the Article 370 altogether. After the
clause. state Constituent Assembly dissolved itself
• The definition can be altered by the state without recommending abrogation, the Article
government by passing a law with two third 370 was deemed to have become a permanent
majority. feature of the Indian Constitution.
What is the difference between Article 35A
and Article 370? THE JAMMU AND KASHMIR
Article 35A REORGANISATION ACT, 2019
• Empowers the Jammu and Kashmir state's The Jammu and Kashmir
legislature to define “permanent Reorganization Bill, 2019 was introduced in
residents” of the state and provide special Rajya Sabha on August 5, 2019 by the Minister
rights and privileges to those permanent of Home Affairs, Mr. Amit Shah. The Bill
residents. provides for reorganization of the state of
• Added to the Constitution through a Jammu and Kashmir into the Union Territory of
Presidential Order, i.e., The Constitution Jammu and Kashmir and Union Territory of
(Applications to Jammu & Kashmir) Order, Ladakh.
1954 - issued by the President of India on 14 ▪ Reorganization of Jammu and Kashmir:
May 1954, "in exercise of the powers The Bill reorganizes the state of Jammu and
conferred by" clause (1) of Article 370 of Kashmir into: (i) the Union Territory of Jammu
the Constitution, with the concurrence of the and Kashmir with a legislature, and (ii) the
Government of the State of Jammu and Union Territory of Ladakh without a legislature.
Kashmir. The Union Territory of Ladakh will comprise
Article 370 Kargil and Leh districts, and the Union Territory
• Gives autonomous status to the state of of Jammu and Kashmir will comprise the
Jammu and Kashmir. remaining territories of the existing state of
Jammu and Kashmir.

129
▪ Lieutenant Governor: The Union Territory power to make laws in relation to any matter for
of Jammu and Kashmir will be administered by the Union Territory of Jammu and Kashmir.
the President, through an administrator ▪ Council of Ministers: The Union Territory
appointed by him known as the Lieutenant of Jammu and Kashmir will have a Council of
Governor. The Union Territory of Ladakh will Ministers of not more than ten percent of the
be administered by the President, through a total number of members in the Assembly. The
Lieutenant Governor appointed by him. Council will aide and advise the Lieutenant
▪ Legislative Assembly of Jammu and Governor on matters that the Assembly has
Kashmir: powers to make laws. The Chief Minister will
The Bill provides for a Legislative Assembly for communicate all decisions of the Council to the
the Union Territory of Jammu and Kashmir. The Lieutenant Governor.
total number of seats in the Assembly will be ▪ High Court: The High Court of Jammu and
107. Of these, 24 seats will remain vacant on Kashmir will be the common High Court for the
account of certain areas of Jammu and Kashmir Union Territories of Ladakh, and Jammu and
being under the occupation of Pakistan. Further, Kashmir. Further, the Union Territory of Jammu
seats will be reserved in the Assembly for and Kashmir will have an Advocate General to
Scheduled Castes and Scheduled Tribes in provide legal advice to the government of the
proportion to their population in the Union Union Territory.
Territory of Jammu and Kashmir. In addition, ▪ Legislative Council: The Legislative
the Lieutenant Governor may nominate two Council of the state of Jammu and Kashmir will
members to the Legislative Assembly to give be abolished. Upon dissolution, all Bills pending
representation to women, if they are not in the Council will lapse.
adequately represented. ▪ Advisory Committees: The central
▪ The Assembly will have a term of five years, government will appoint Advisory Committees,
and the Lieutenant Governor must summon the for various purposes, including: (i) distribution
Assembly at least once in six months. The of assets and liabilities of corporations of the
Legislative Assembly may make laws for any state of Jammu and Kashmir between the two
part of the Union Territory of Jammu and Union Territories, (ii) issues related to the
Kashmir related to: (i) any matters specified in generation and supply of electricity and water,
the State List of the Constitution, except and (iii) issues related to the Jammu and
“Police” and “Public Order”, and (ii) any matter Kashmir State Financial Corporation. These
in the Concurrent List applicable to Union Committees must submit their reports within six
Territories. Further, Parliament will have the months to the Lieutenant Governor of Jammu

130
and Kashmir, who must act on these
recommendations within 30 days.
▪ Extent of laws: The Schedule lists 106
central laws that will be made applicable to
Union Territories of Jammu and Kashmir and
Ladakh on a date notified by the central
government.
These include the Aadhaar Act, 2016,
the Indian Penal Code, 1860, and the Right to
Education
Act, 2009. Further, it repeals 153 state laws of
Jammu and Kashmir. In addition, 166 state laws
will remain in force, and seven laws will be
applicable with amendments. These amendments
include lifting of prohibitions on lease of land to
persons who are not permanent residents of
Jammu and Kashmir.
The JAMMU AND KASHMIR
REORGANISATION ACT, 2019 of Parliament
received the assent of the President on the 9th
August, 2019, and came into force.

131
 MODULE - 07
OTHER CONSTITUTIONAL INSTITUTIONS / AUTHORITIES:

1. COMPTROLLER AND AUDITOR- Auditor-General have been equated with the

GENERAL OF INDIA judges of the Supreme Court. The service
(Articles 148 TO 151) conditions of those serving in the Audit and
Financial control of the administration is Accounts Department and the administrative
the bulwark of parliamentary democracy and for powers of the Comptroller and Auditor-General
exercising financial control an independent audit are to be laid down by the President by rules
agency is an essential pre requisite. The framed after consultation with the Comptroller
Constitution provides for a Comptroller and and Auditor-General. The administrative
Auditor-General of India being appointed by the expenses of the office of the Comptroller and
President. To ensure the independence of this Auditor-General are to be charged upon the
office from the executive government of the day, Consolidated Fund of India (Article 148).
it has been provided that the Comptroller and The form in which the accounts of the
Auditor-General shall not be removed from his Union and of the States are to be maintained is
office except on grounds of proved to be determined by the President on the advice
misbehaviour or incapacity, on an address of the Comptroller and Auditor-General. The
passed by each of the two Houses of Parliament Constitution left it to Parliament to lay down the
by two-thirds majority of those present and duties and powers of Comptroller and Auditor-
voting and a majority of the total membership of General in regard to the accounts of the Union
each House being presented to the President in and the States (Articles 149 and 150). Article
the same manner as applicable to the judges of 151, however, specifically lays down that the
the Supreme Court under Article 124(4). Also, Comptroller and Auditor-General shall submit to
the Comptroller and Auditor-General has been the President reports relating to the accounts of
made ineligible for any other office under the the Union and the President shall cause them to
Government of India or any State Government. be laid before both Houses of Parliament.
His salary etc. is left to be determined by Similarly reports in regard to the accounts of the
Parliament by law. The Comptroller and States will be submitted to the respective State
Auditor-General (Duties, Powers and Conditions Governors and shall be laid before the House/ s
of Service) Act, 1971, as amended regulates the of the concerned legislatures.
position. The salary, etc. of Comptroller and

132
 2. ADMINISTRATION OF UNION respect of matters in Lists II and III of the
TERRITORIES (Articles 239 to 241) Seventh Schedule in so far as these matters are
The Union Territories may be defined as areas applicable to the Union Territory. This applies to
directly administered by the Union. At present the Delhi Assembly also but there the legislative
there are seven Union Territories, viz. Andaman and executive powers in respect of public order,
and Nicobar Islands, Lakshadweep, Dadra and police and land and all matters related to these
Nagar Haveli, Daman and Diu, Puducherry, three areas have been retained by the Union to
Chandigarh and Delhi (First Schedule). The be handled through the Lt. Governor of Delhi.
erstwhile Union Territory of Delhi which had a The Union Territory of Andaman and Nicobar
Metropolitan Council and Executive Councillors Islands has a nominated body in place of a
has now emerged as the National Capital legislature (Article 239 A). The administrator of
Territory of Delhi with a legislature and a a Union Territory enjoys powers of
Council of Ministers (Articles 239AA and 239 promulgating' ordinances like the Governors of
AB inserted by the sixty-ninth amendment, States (Article 239B). The President has been
1991). empowered to make regulations for peace,
The Parliament may by law provide for progress and good government of all the Union
the administration of Union Territories. Subject Territories except where a legislature is
thereto, the administration of Union Territories functioning (Article 239A and 240). Parliament
is to be handled by the President through an may by law constitute a High Court for a Union
administrator appointed by him. The Territory or declare any Court to be the High
administrator is usually called the Lt. Governor. Court for its purposes (Article 241).
The President may also appoint the Governor of
a neighbouring State as the administrator of a 3. STRUCTURE POWERS AND
Union Territory. A Governor so appointed shall FUNCTIONS OF PANCHAYATS
discharge the functions of IIH' administrator (Articles 243 to 243O)
independently of the advice of the Councilor The Constitution (73rd Amendment)
Ministers of the State (Article 239). Parliament Act, 1992 and the Constitution (74th
may by law create for any territory a legislature Amendment) Act, 1992 have added new Parts
and a Council of Ministers. Such a legislature IX and IX A to the Constitution. Under these
and Council of Ministers exist for the Union two parts, we have as many as 34 new Articles-
Territory of Puducherry and for the National 243 to 243ZG and two new schedules viz.
Capital Territory of Delhi. The Legislative schedules 11 and 12. The 73rd Amendment
Assembly in Puducherry may make laws in gives constitutional recognition to the

133
Panchayats and the 74th Amendment to the amended amendment became a reality during
Municipalities. Thus, to the Union and the Narasimha Rao's time.
States, a third tier of governmental The seventy-third and seventy-fourth
instrumentalities has been added. constitutional' amendments made some
There is nothing entirely new about the fundamental changes in our political structure
institutions of Panchayats and Municipalities. and in the status of local institutions. These
Both these have existed for long. There were institutions acquired constitutional protection.
local self-government and Panchayati Raj laws The two amendments provided for the State
in many parts of India. But, unfortunately these legislatures making their own laws under the
institutions were not able to function constitutional provisions for establishing
satisfactorily for any length of time. Often, they Panchayats, Municipalities, etc. and conferring
stood superceded. Despite the Gandhian on them such powers and authority as may be
approach of treating the villages as units of necessary to enable them to function as
polity and Gandhiji's love for Panchayati Raj institutions of self-government. In every State, a
institutions, Dr. Ambedkar in the Constituent three-tier system was envisaged. Panchayats
Assembly did not favour them and even said were to be established at the Village and district
some very harsh things like these being dens of levels and at the intermediate level. States which
corruption, localism, backwardness etc. Finally, had a population of less than two million did not
as a compromise or a concession to Gandhi's need to have the intermediate level Panchayats.
views, Article 40 was included under the non- Statement of Objects and Reasons
enforcable Part IV on the Directive Principles of appended to the Constitution (Seventy-second
State Policy. It said that the state shall take steps Amendment) Bill, 1991 which was enacted as
to organise Village Panchayats and endow them the Constitution (Seventy-third Amendment)
with necessary authority "to function as units of Act, 1992
self-government" . STATEMENT OF OBJECTS AND
Hardly any attention was paid to Article REASONS
40 at the level of Union Parliament until Prime Though the Panchayati Raj Institutions
Minister Rajiv Gandhi took serious interest and have been in existence for a long time, it has
initiative to bring forward a constitutional been observed that these institutions have not
amendment. It was, however opposed on been able to acquire the status and dignity of
grounds of its being an effort to reach the viable and responsive people's bodies due to a
Panchayats directly, bypassing the States. The number of reasons including absence of regular
elections, prolonged supersession, insufficient

134
representation of weaker sections like Scheduled of 6 months in the event of supersession of any
Castes, Scheduled Tribes and women, Panchayat; disqualifications for membership of
inadequate devolution of powers and lack of Panchayats; devolution by the State Legislature
financial resources. of powers and responsibilities upon the
2. Article 40 of the Constitution which enshrines Panchayats with respect to the preparation of
one of the Directive Principles of State Policy plans for economic developments and social
lays down that the State shall take steps to justice and for the implementation of
organise village panchayats and endow them development schemes; sound finance of the
with such powers and authority as may be Panchayats by securing authorisation from State
necessary to enable them to function as units of Legislatures for grants-in-aid to the Panchayats
self-government. In the light of the experience in from the Consolidated Fund of the State, as also
the last forty years and in view of the short- assignment to, or appropriation by, the
comings which have been observed, it is Panchayats of the revenues of designated taxes,
considered that there is an imperative need to duties, tolls and fees; setting up of a Finance
enshrine in the Constitution certain basic and Commission within one year of the proposed
essential features of Panchayati Raj Institutions amendment and thereafter every 5 years to
to impart certainty, continuity and strength to review the financial position of Panchayats;
them. auditing of accounts of the Panchayats; powers
3. Accordingly, it is proposed to add a new Part of State Legislatures to make provisions with
relating to Panchayats in the Constitution to respect to elections to Panchayats under the
provide for among other things, Gram Sabha in a superintendence, direction and control of the
village or group of villages; constitution of chief electoral officer of the State; application of
Panchayats at village and other level or levels; the provisions of the said Part to Union
direct elections to all seats in Panchayats at the territories; excluding certain States and areas
village and intermediate level, if any, and to the from the application of the provisions of the said
offices of Chairpersons of Panchayats at such Part; continuance of existing laws and
levels; reservation of seats for the Scheduled Panchayats until one year from the
Castes and Scheduled Tribes in proportion to commencement of the proposed amendment and
their population for membership of Panchayats barring interference by courts in electoral
and office of Chairpersons in Panchayats at each matters relating to Panchayats.
level; reservation of not less than one-third of 4. The Bill seeks to achieve the aforesaid
the seats for women; fixing tenure of 5 years for objectives.
Panchayats and holding elections within a period

135
 The Constitution (seventy-third level as the Legislature of a State may, by law,
amendment) At, 1992 inserted new Part IX.- provide.
After Part VIII of the Constitution, the following Art.243B. Constitution of Panchayats.-
Part shall be inserted, namely: THE (1) There shall be constituted in every State,
PANCHAYATS. Art. 243 gives important Panchayats at the village, intermediate and
definitions like - district levels in accordance with the provisions
(a) "district" means a district in a State; of this Part.
(b) "Gram Sabha" means a body consisting of (2) Notwithstanding anything in clause (1),
persons registered in the electoral rolls relating Panchayats at the intermediate level may not be
to a village comprised within the area of constituted in a State having a population not
Panchayat at the village level; exceeding twenty lakhs.
(c) "Intermediate level" means a level between Art.243C. Composition of Panchayats.-
the village and district levels specified by the (1) Subject to the provisions of this Part, the
Governor of a State by public notification to be Legislature of a State may, by law, make
the intermediate level for the purposes of this provisions with respect to the composition of
Part; Pancayats:
(d) "Panchayat" means an institution (by Provided that the ratio between the
whatever name called) of self-government population of the territorial area of a Panchayat
constituted under article 243B, for the rural at any level and the number of seats in such
areas; Panchayat to be filled by election shall, so far as
(e) "Panchayat area" means the territorial area of practicable, be the same throughout the State.
a Panchayat; (2) All the seats in a Panchayat shall be filled by
(f) "population" means the population as persons chosen by direct election from territorial
ascertained at the last preceding census of which constituencies in the Panchayat area and; for this
the relevant figures have been published; purpose, each Panchayat area shall be divided
(g) "village" means a village specified by the into territorial constituencies in such manner that
Governor by public notification to be a village the ratio between the population of each
for the purposes of this Part and includes a group constituency and the number of seats allotted to
of villages so specified. it shall, so far as practicable, be the same
Art. 243A gives provision of Gram throughout the Panchayat area.
Sabha.- A Gram Sabha may exercise such (3) The Legislature of a State may, by law,
powers and perform such functions at the village provide for the representation-

136
(a) of the Chairpersons of the Panchayats at the (b) a Panchayat at the intermediate level or
village level, in the Panchayats at the district level shall be elected by, and from
intermediate level or, in the case of a State not amongst, the elected members thereof.
having Panchayats at the intermediate level, in Art. 243D. Reservation of seats.- (1)
the Pancayats at the district level; Seats shall be reserved for-
(b) of the Chairpersons of the Panchayats at the (a) the Scheduled Castes; and
intermediate level, in the Panchayats at the (b) the Scheduled Tribes,
district level; in every Panchayat and the number of seats of
(c) of the members of the House of the People reserved shall bear, as nearly as may be, the
and the members of the Legislative Assembly of same proportion to the total number of seats to
the State representing constituencies which be filled by direct election in that Panchayat as
comprise wholly or partly a Panchayat area at a the population of the Scheduled Castes in that
level other than the village level, in such Panchayat area or of the Scheduled Tribes in
Panchayat; that Panchayat area bears to the total population
(d) of the members of the Council of States and of that area and such seats may be allotted by
the members of the Legislative Council of the rotation to different constituencies in a
State, where they are registered as electors Panchayat.
within- (2) Not less than one-third of the total number of
(i) a Panchayat area at the intermediate level, in seats reserved under clause (1) shall be reserved
Panchayat at the intermediate level; for women belonging to the Scheduled Castes
(ii) a Panchayat area at the district level, in or, as the case may be, the Scheduled Tribes.
Panchayat at the district level. (3) Not less than one-third (including the
(4) The Chairperson of a Panchayat and other number of seats reserved for women belonging
members of a Panchayat whether or not chosen to the Scheduled Castes and the Scheduled
by direct election from territorial constituencies Tribes) of the total number of seats to be filled
in the Panchayat area shall have the right to vote by direct election in every Panchayat shall be
in the meetings of the Panchayats. reserved for women and such seats may be
(5) The Chairperson of - allotted by rotation to different constituencies in
(a) a Panchayat at the village level shall be a Panchayat.
elected in such manner as the Legislature of a (4) The offices of the Chairpersons in the
State may, by law, provide; and Panchayats at the village or any other level shall
be reserved for the Scheduled Castes, the

137
Scheduled Tribes and women in such manner as continue for five years from the date appointed
the Legislature of a State may, by law, provide: for its first meeting and no longer.
Provided that the number of offices of (2) No amendment of any law for the time being
Chairpersons reserved for the Scheduled Castes in force shall have the effect of causing
and the Scheduled Tribes in the Panchayats at dissolution of a Panchayat at any level, which is
each level in any State shall bear, as nearly as functioning immediately before such
may be, the same proportion to the total number amendment, till the expiration of its duration
of such offices in the Panchayats at each level as specified in clause (1).
the population of the Scheduled Castes in the (3) An election to constitute a Panchayat shall be
State or of the Scheduled Tribes in the State completed-
bears to the total population of the State: (a) before the expiry of its duration specified in
Provided further that not less than one-third of clause (1);
the total number of offices of Chairpersons in (b) before the expiration of a period of six
the Panchayats at each level shall be reserved for months from the date of its dissolution:
women: Provided that where the remainder of the period
Provided also that the number of offices for which the dissolved Panchayat would have
reserved under this clause shall be allotted by continued is less than six months, it shall not be
rotation to different Panchayats at each level. necessary to hold any election under this clause
(5) The reservation of seats under clauses (1) for constituting the Panchayat for such period.
and (2) and the reservation of offices of (4) A Panchayat constituted upon the dissolution
Chairpersons (other than the reservation for of a Panchayat before the expiration of its
women) under clause (4) shall cease to have duration shall continue only for the remainder of
effect on the expiration of the period specified in the period for which the dissolved Panchayat
article 334. would have continued under clause (1) had it not
(6) Nothing in this Part shall prevent the been so dissolved.
Legislature of a State from making any Art. 243F. Disqualifications for
provision for reservation of seats in any membership.-(1) A person shall be disqualified
Panchayat or offices of Chairpersons in the for being chosen as, and for being, a member of
Panchayats at any level in favour of backward a Panchayat-
class of citizens. (a) if he is so disqualified by or under any law
Art. 243E. Duration of Panchayats, etc.- for the time being in force for the purposes of
(1) Every Panchayat, unless sooner dissolved elections to the Legislature of the State
under any law for the time being in force, shall concerned:

138
Provided that no person shall be disqualified on (a) authorise a Panchayat to levy, collect and
the ground that he is less than twenty-five years appropriate such taxes, duties, tolls and fees in
of age, if he has attained the age of twenty-one accordance with such procedure and subject to
years; such limits;
(b) if he is so disqualified by or under any law (b) assign to a Panchayat such taxes, duties, tolls
made by the Legislature of the State. and fees levied and collected by the State
(2) If any question arises as to whether a Government for such purposes and subject to
member of a Panchayat has become subject to such conditions and limits;
any of the disqualifications mentioned in clause (c) provide for making such grants-in-aid to the
(1), the question shall be referred for the Panchayats from the Consolidated Fund of the
decision of such authority and in such manner as State; and
the Legislature of a State may, by law, provide. (d) provide for Constitution of such Funds for
Art. 243G. Powers, authority and crediting all moneys received, respectively, by
responsibilities of Panchayats.- Subject to the or on behalf of the Panchayats and also for the
provisions of this Constitution, the Legislature withdrawal of such moneys therefrom,
of a State may, by law, endow the Panchayats as may be specified in the law.
with such powers and authority as may be Art. 243-I. Constitution of Finance
necessary to enable them to function as Commission to review financial position.-(1)
institutions of self-government and such law The Governor of a State shall, as soon as may be
may contain provisions for the devolution of within one year from the commencement of the
powers and responsibilities upon Panchayats at Constitution (Seventy-third Amendment) Act,
the appropriate level, subject to such conditions 1992, and thereafter at the expiration of every
as may be specified therein, with respect to- fifth year, constitute a Finance Commission to
(a) the preparation of plans for economic review the financial position of the Panchayats
development and social justice; and to make recommendations to the Governor
(b) the implementation of schemes for economic as to-
development and social justice as may be (a) the principles which should govern-
entrusted to them including those in relation to (i) the distribution between the State and the
the matters listed in the Eleventh Schedule. Panchayats of the net proceeds of the taxes,
243H. Powers to impose taxes by, and Funds of, duties, tolls and fees leviable by the State, which
the Panchayats.-The Legislature of a State may, may be divided between them under this Part
by law,- and the allocation between the Panchayats at all

139
levels of their respective shares of such the preparation of electoral rolls for, and the
proceeds; conduct of, all elections to the Panchayats shall
(ii) the determination of the taxes, duties, tolls be vested in a State Election Commission
and fees which may be assigned to, or consisting of a State Election Commissioner to
appropriated by, the Panchayat; be appointed by the Governor.
(iii) the grants-in-aid to the Panchayats from the (2) Subject to the provisions of any law made by
Consolidated Fund of the State; the Legislature of a State, the conditions of
(b) the measures needed to improve the financial service and tenure of office of the State Election
position of the Panchayats; Commissioner shall be such as the Governor
(c) any other matter referred to the Finance may by rule determine:
Commission by the Governor in the interests of Provided that the State Election Commissioner
sound finance of the Panchayats. shall not be removed from his office except in
(2) The Legislature of a State may, by law, like manner and on the like grounds as a Judge
provide for the composition of the commission, of a High Court and the conditions of service of
the qualifications which shall be requisite for the State Election Commissioner shall not be
appointment as members thereof and the manner varied to his disadvantage after his appointment.
in which they shall be selected. (3) The Governor of a State shall, when so
(3) The Commission shall determine their requested by the State Election Commission,
procedure and shall have such powers in the make available to the State Election
performance of their functions as the Legislature Commission such staff as may be necessary for
of the State may, by law, confer on them. the discharge of the functions conferred on the
(4) The Governor shall cause every State Election Commission by clause (1).
recommendation made by the Commission (4) Subject to the provisions of this Constitution,
under this article together with an explanatory the Legislature of a State may, by law, make
memorandum as to the action taken thereon to provision with respect to all matters relating to,
be laid before the Legislature of the State. or in connection with, elections to the
Art. 243J. Audit of accounts of Panchayats.
Panchayats.- The Legislature of a State may, by Art. 243L. Application to Union
law, make provisions with respect to the territories.-The provisions of this Part shall
maintenance of accounts by the Panchayats and apply to the Union territories and shall, in their
the auditing of such accounts. application to a Union territory, have effect as if
Art. 243K. Elections to the Panchayats.- the references to the Governor of a State were
(1) The superintendence, direction and control of references to the Administrator of the Union

140
territory appointed under article 239 and (a) the Legislature of a State referred to in sub-
references to the Legislature or the Legislative clause (a) of clause (2) may, by law, extend this
Assembly of a State were references, in relation Part to that State, except the areas, if any,
to a Union territory having a Legislative referred to in clause (1), if the Legislative
Assembly, to that Legislative Assembly: Assembly of that State passes a resolution to that
Provided that the President may, by public effect by a majority of the total membership of
notification, direct that the provisions of this that House and by a majority of not less than
Part shall apply to any Union territory or part two-thirds of the members of that House present
thereof subject to such exceptions and and voting;
modifications as he may specify in the (b) Parliament may, by law, extend the
notification. provisions of this Part to the Scheduled Areas
Art. 243M. Part not to apply to certain and the tribal areas referred to in clause (1)
areas.-(1) Nothing in this Part shall apply to the subject to such exceptions and modifications as
Scheduled Areas referred to in clause (1), and may be specified in such law, and no such law
the tribal areas referred to in clause (2), of article shall be deemed to be an amendment of this
244. Constitution for the purposes of article 368.
(2) Nothing in this Part shall apply to- Art. 243N. Continuance of existing laws
(a) the States of Nagaland, Meghalaya and and Panchayats.-Notwithstanding anything in
Mizoram; this Part, any provision of any law relating to
(b) the Hill Areas in the State of Manipur for Panchayats in force in a State immediately
which District Councils exist under any law for before the commencement of the Constitution
the time being in force. (Seventy-third Amendment) Act, 1992, which is
(3) Nothing in this Part- inconsistent with the provisions of this Part,
(a) relating to Panchayats at the district level shall continue to be in force until amended or
shall apply to the hill areas of the District of repealed by a competent Legislature or other
Darjeeling in the State of West Bengal for which competent authority or until the expiration of
Darjeeling Gorkha Hill Council exists under any one year from such commencement, whichever
law for the time being in force; is earlier:
(b) shall be construed to affect the functions and Provided that all the Panchayats existing
powers of the Darjeeling Gorkha Hill Council immediately before such commencement shall
constituted under such law. continue till the expiration of their duration,
(4) Notwithstanding anything in this unless sooner dissolved by a resolution passed to
Constitution,- that effect by the Legislative Assembly of that

141
State or, in the case of a State having a 5. Fisheries.
Legislative Council, by each House of the 6. Social forestry and farm forestry.
Legislature of that State. 7. Minor forest produce.
Art. 243-O. Bar to interference by courts 8. Small scale industries, including food
in electoral matters.- Notwithstanding anything processing industries.
in this Constitution,- 9. Khadi, village and cottage industries.
(a) the validity of any law relating to the 10. Rural housing.
delimitation of constituencies or the allotment of 11. Drinking water.
seats to such constituencies, made or purporting 12. Fuel and fodder.
to be made under article 243K, shall not be 13. Roads, culverts, bridges, ferries, waterways
called in question in any court; and other means of communication.
(b) no election to any Panchayat shall be called 14. Rural electrification, including distribution
in question except by an election petition of electricity.
presented to such authority and in such manner 15. Non-conventional energy sources.
as is provided for by or under any law made by 16. Poverty alleviation programme.
the Legislature of a State.'. 17. Education, including primary and secondary
Constitution, after sub-clause (b), the following schools.
sub-clause shall be inserted, namely:- 18. Technical training and vocational education.
"(bb) the measures needed to augment the 19. Adult and non-formal education.
Consolidated Fund of a State to supplement the 20. Libraries.
resources of the Panchayats in the State on the 21. Cultural activities.
basis of the recommendations made by the 22. Markets and fairs.
Finance Commission of the State;". 23. Health and sanitation, including hospitals,
Constitution, the following Schedule primary health centres and dispensaries.
shall be added, namely:- 24. Family welfare.
ELEVENTH SCHEDULE (Article 243G) 25. Women and child development.
1. Agriculture, including agricultural extension. 26. Social welfare, including welfare of the
2. Land improvement, implementation of land handicapped and mentally retarded.
reforms, land consolidation and soil 27. Welfare of the weaker sections, and in
conservation. particular, of the Scheduled Castes and the
3. Minor irrigation, water management and Scheduled Tribes.
watershed development. 28. Public distribution system.
4. Animal husbandry, dairying and poultry. 29. Maintenance of community assets.".

142
 Thus the important thing was that now Articles 243-P to 243-ZG. In addition, the
Panchayats had to be elected directly by the Amendment Act has also added Twelfth
people in the same manner as members of the Schedule to the Constitution. It contains 18
popular houses at the Union and State levels functional items of municipalities listed under
were elected i.e. through territorial Article 243-W.
constituencies and on the principle of 'one man Statement of Objects and Reasons the
one vote'. For a Village Panchayat, the electorate Constitution (seventy-fourth Amendment) Act,
would be the Gram Sabha which would consist 1992 stated that in many States local bodies
of those registred in the electoral rolls. These have become weak and ineffective on account of
Panchayats cannot remain superceded for long; a variety of reasons, including the failure to hold
fresh elections would have to be held within six regular elections, prolonged supersessions and
months of the dissolution of a Panchayat. inadequate devolution of powers and functions.
Secondly, in all panchayats, seats would be As a result, Urban Local Bodies are not able to
reserved for women, Scheduled Castes and perform effectively as vibrant democratic units
Scheduled Tribes. There shall be a fixed five of self-government.
year term for all Panchayats. They shall have Having regard to these inadequacies, it
their own budget, power of taxation and list of is considered necessary that provisions relating
items in their jurisdiction. In their respective to Urban Local Bodies are incorporated in the
areas, the Panchayats shall be able to formulate Constitution particularly for –
their own development plans and implement (i) putting on a firmer footing the relationship
them. Every State shall have a State Election between the State Government and the Urban
Commissioner for conducting Panchayat Local Bodies with respect to –
elections and every five years a State Finance (a) the functions and taxation powers; and
Commission shall be constituted to take stock of (b) arrangements for revenue sharing;
the economic condition of the Panchayats. (ii) Ensuring regular conduct of elections;
4. MUNICIPALITIES (iii) ensuring timely elections in the case of
(Articles 243P to 243ZG) supersession; and
Similarly, in the 74th Amendment, there (iv) providing adequate representation for the
were provisions for the setting up of Nagar weaker sections like Scheduled Castes,
Palikas and Nagar Panchayats. This Amendment Scheduled Tribes and women.
of the Constitution of India has added Part IX-A Accordingly, it is proposed to add a new
to the Constitution of India. It is entitled as ‘The part relating to the Urban Local Bodies in the
Municipalities’ and has inserted provisions from Constitution to provide for – (a) constitution of

143
three types of Municipalities: (i) Nagar Chairpersons as may be specified in the State
Panchayats for areas in transition from a rural law;
area to urban area; (f) fixed tenure of 5 years for the Municipality
(ii) Municipal Councils for smaller urban areas; and re-election within six months of end of
(iii) Municipal Corporations for larger urban tenure. If a Municipality is dissolved before
areas. The broad criteria for specifying the said expiration of its duration, elections to be held
areas is being provided in the proposed article within a period of six months of its dissolution;
243-O; (g) devolution by the State Legislature of powers
(b) composition of Municipalities, which will be and responsibilities upon the Municipalities with
decided by the Legislature of a State, having the respect to preparation of plans for economic
following features: (i) persons to be chosen by development and social justice, and for the
direct election; (ii) representation of implementation of development schemes as may
Chairpersons of Committees, if any, at ward or be required to enable them to function as
other levels in the Municipalities; (iii) institutions of self-government;
representation of persons having special (h) levy of taxes and duties by Municipalities,
knowledge or experience of Municipal assigning of such taxes and duties to
Administration in Municipalities (without voting Municipalities by State Governments and for
rights); making grants-in-aid by the State to the
(c) election of Chairpersons of a Municipality in Municipalities as may be provided in the State
the manner specified in the State law; law;
(d) constitution of Committees at ward level or (i) a Finance Commission to review the finances
other level or levels within the territorial area of of the Municipalities and to recommend
a Municipality as may be provided in the State principles for - (1) determining the taxes which
law; may be assigned to the Municipalities; (2)
(e) reservation of seats in every Municipality- (i) Sharing of taxes between the State and
for Scheduled Castes and Scheduled Tribes in Municipalities; (3) grants-in-aid to the
proportion to their population of which not less Municipalities from the Consolidated Fund of
than one-third shall be for women; (ii) for the State;
women which shall not less than one-third of the (j) audit of accounts of the Municipal
total number of seats; (iii) in favour of backward Corporations by the Comptroller and Auditor-
class of citizens if so provided by the Legislature General of India and laying of reports before the
of the State; (iv) for Scheduled Castes, Legislature of the State and the Municipal
Scheduled Tribes and women in the office of Corporation concerned;

144
(k) making of law by a State Legislature with (c) "Metropolitan area" means an area having a
respect to elections to the Municipalities to be population of ten lakhs or more, comprised in
conducted under the superintendence, direction one or more districts and consisting of two or
and control of the chief electoral officer of the more Municipalities or Panchayats or other
State; (l) application of the provisions of the Bill contiguous areas, specified by the Governor by
to any Union territory or part thereof with such public notification to be a Metropolitan area for
modifications as may be specified by the the purposes of this Part;
President; (d) "Municipal area" means the territorial area of
(m) exempting Scheduled areas referred to in a Municipality as is notified by the Governor;
clause (1), and tribal areas referred to in clause (e) "Municipality" means an institution of self-
(2), of article 244, from the application of the government constituted under article 243Q;
provisions of the Bill. Extension of provisions of (f) "Panchayat" means a Panchayat constituted
the Bill to such areas may be done by Parliament under article 243B;
by law; (g) "population" means the population as
(n) disqualifications for membership of a ascertained at the last preceding census of which
Municipality; the relevant figures have been published.
(o) bar of jurisdiction of Courts in matters Art. 243Q. Constitution of
relating to elections to the Municipalities. Municipalities (1) There shall be constituted in
This Act may be called the Constitution every State,- (a) a Nagar Panchayat (by
(Seventy-fourth Amendment) Act, 1992. It shall whatever name called) for a transitional area,
come into force on such date as the Central that is to say, an area in transition from a rural
Government may, by notification in the Official area to an urban area; (b) a Municipal Council
Gazette, appoint. for a smaller urban area; and (c) a Municipal
Insertion of new Part IXA.-After Part IX Corporation for a larger urban area, in
of the Constitution, the following Part shall be accordance with the provisions of this Part:
inserted, namely:- `PART IXA THE Provided that a Municipality under this clause
MUNICIPALITIES may not be constituted in such urban area or part
Art. 243P gives various definitions in thereof as the Governor may, having regard to
this Part like - the size of the area and the municipal services
(a) "Committee" means a Committee constituted being provided or proposed to be provided by an
under article 243S; industrial establishment in that area and such
(b) "district" means a district in a State; other factors as he may deem fit, by public
notification, specify to be an industrial township.

145
(2) In this article, "a transitional area", "a the persons referred to in paragraph (i) shall not
smaller urban area" or "a larger urban area" have the right to vote in the meetings of the
means such area as the Governor may, having Municipality; (b) the manner of election of the
regard to the population of the area, the density Chairperson of a Municipality.
of the population therein, the revenue generated Art. 243S. Constitution and composition
for local administration, the percentage of of Wards Committees, etc.
employment in non-agricultural activities, the (1) There shall be constituted Wards
economic importance or such other factors as he Committees, consisting of one or more wards,
may deem fit, specify by public notification for within the territorial area of a Municipality
the purposes of this Part. having a population of three lakhs or more.
Art. 243R. Composition of (2) The Legislature of a State may, by law, make
Municipalities. provision with respect to - (a) the composition
(1) Save as provided in clause (2), all the seats in and the territorial area of a Wards Committee;
a Municipality shall be filled by persons chosen (b) the manner in which the seats in a Wards
by direct election from the territorial Committee shall be filled.
constituencies in the Municipal area and for this (3) A member of a Municipality representing a
purpose each Municipal area shall be divided ward within the territorial area of the Wards
into territorial constituencies to be known as Committee shall be a member of that
wards. Committee.
(2) The Legislature of a State may, by law, (4) Where a Wards Committee consists of- (a)
provide- (a) for the representation in a one ward, the member representing that ward in
Municipality of- (i) persons having special the Municipality; or (b) two or more wards, one
knowledge or experience in Municipal of the members representing such wards in the
administration; (ii) the members of the House of Municipality elected by the members of the
the People and the members of the Legislative Wards Committee, shall be the Chairperson of
Assembly of the State representing that Committee.
constituencies which comprise wholly or partly (5) Nothing in this article shall be deemed to
the Municipal area; (iii) the members of the prevent the Legislature of a State from making
Council of States and the members of the any provision for the constitution of Committees
Legislative Council of the State registered as in addition to the Wards Committees.
electors within the Municipal area; (iv) the Art. 243T. Reservation of seats.-
Chairpersons of the Committees constituted (1) Seats shall be reserved for the Scheduled
under clause (5) of article 243S: Provided that Castes and the Scheduled Tribes in every

146
Municipally and the number of seats so reserved (6) Nothing in this Part shall prevent the
shall bear, as nearly as may be, the same Legislature of a State from making any
proportion to the total number of seats to be provision for reservation of seats in any
filled by direct election in that Municipality as Municipality or offices of Chairpersons in the
the population of the Scheduled Castes in the Municipalities in favour of backward class of
Municipal area or of the Scheduled Tribes in the citizens.
Municipal area bears to the total population of Art. 243U. Duration of Municipalities,
that area and such seats may be allotted by etc.-
rotation to different constituencies in a (1) Every Municipality, unless sooner dissolved
Municipality. under any law for the time being in force, shall
(2) Not less than one-third of the total number of continue for five years from the date appointed
seats reserved under clause (1) shall be reserved for its first meeting and no longer: Provided that
for women belonging to the Scheduled Castes a Municipality shall be given a reasonable
or, as the case may be, the Scheduled Tribes. opportunity of being heard before its dissolution.
(3) Not less than one-third (including the (2) No amendment of any law for the time being
number of seats reserved for women belonging in force shall have the effect of causing
to the Scheduled Castes and the Scheduled dissolution of a Municipality at any level, which
Tribes) of the total number of seats to be filled is functioning immediately before such
by direct election in every Municipality shall be amendment, till the expiration of its duration
reserved for women and such seats may be specified in clause (1).
allotted by rotation to different constituencies in (3) An election to constitute a Municipality shall
a Municipality. be completed,- (a) before the expiry of its
(4) The officers of Chairpersons in the duration specified in clause (1); (b) before the
Municipalities shall be reserved for the expiration of a period of six months from the
Scheduled Castes, the Scheduled Tribes and date of its dissolution: Provided that where the
women in such manner as the Legislature of a remainder of the period for which the dissolved
State may, by law, provide. Municipality would have continued is less than
(5) The reservation of seats under clauses (1) six months, it shall not be necessary to hold any
and (2) and the reservation of offices of election under this clause for constituting the
Chairpersons (other than the reservation for Municipality for such period.
women) under clause (4) shall cease to have (4) A Municipality constituted upon the
effect on the expiration of the period specified in dissolution of a Municipality before the
article 334. expiration of its duration shall continue only for

147
the remainder of the period for which the preparation of plans for economic development
dissolved Municipality would have continued and social justice; (ii) the performance of
under clause (1) had it not been so dissolved. functions and the implementation of schemes as
Art. 243V. Disqualifications for may be entrusted to them including those in
membership.- relation to the matters listed in the Twelfth
(1) A person shall be disqualified for being Schedule;
chosen as, and for being, a member of a (b) the Committees with such powers and
Municipality- (a) if he is so disqualified by or authority as may be necessary to enable them to
under any law for the time being in force for the carry out the responsibilities conferred upon
purposes of elections to the Legislature of the them including those in relation to the matters
State concerned: Provided that no person shall listed in the Twelfth Schedule. 243X. Power to
be disqualified on the ground that he is less than impose taxes by, and Funds of, the
twenty-five years of age, if he has attained the Municipalities.-The Legislature of a State may,
age of twenty-one years; (b) if he is so by law,- (a) authorise a Municipality to levy,
disqualified by or under any law made by the collect and appropriate such taxes, duties, tolls
Legislature of the State. and fees in accordance with such procedure and
(2) If any question arises as to whether a subject to such limits; (b) assign to a
member of a Municipality has become subject to Municipality such taxes, duties, tolls and fees
any of the disqualifications mentioned in clause levied and collected by the State Government for
(1), the question shall be referred for the such purposes and subject to such conditions and
decision of such authority and in such manner as limits; (c) provide for making such grants-in-aid
the Legislature of a State may, by law, provide. to the Municipalities from the Consolidated
243W. Powers, authority and responsibilities of Fund of the State; and (d) provide for
Municipalities, etc.- Subject to the provisions of constitution of such Funds for crediting all
this Constitution, the Legislature of a State may, moneys received, respectively, by or on behalf
by law, endow- of the Municipalities and also for the withdrawal
(a) the Municipalities with such powers and of such moneys therefrom. as may be specified
authority as may be necessary to enable them to in the law.
function as institutions of self-government and Art. 243Y. Finance Commission.-
such law may contain provisions for the (1) The Finance Commission constituted under
devolution of powers and responsibilities upon article 243-I shall also review the financial
Municipalities, subject to such conditions as position of the Municipalities and make
may be specified therein, with respect to- (i) the recommendations to the Governor as to- (a) the

148
principles which should govern- (i) the (2) Subject to the provisions of this Constitution,
distribution between the State and the the Legislature of a State may, by law, make
Municipalities of the net proceeds of the taxes, provision with respect to all matters relating to,
duties, tolls and fees leviable by the State, which or in connection with, elections to the
may be divided between them under this Part Municipalities. 243ZB. Application to Union
and the allocation between the Municipalities at territories.-The provisions of this Part shall
all levels of their respective shares of such apply to the Union territories and shall, in their
proceeds; (ii) the determination of the taxes, application to a Union territory, have effect as if
duties, tolls and fees which may be assigned to, the references to the Governor of a State were
or appropriated by, the Municipalities; (iii) the references to the Administrator of the Union
grants-in-aid to the Municipalities from the territory appointed under article 239 and
Consolidated Fund of the State; (b) the measures references to the Legislature or the Legislative
needed to improve the financial position of the Assembly of a State were references in relation
Municipalities; (c) any other matter referred to to a Union territory having a Legislative
the Finance Commission by the Governor in the Assembly, to that Legislative Assembly:
interests of sound finance of the Municipalities. Provided that the President may, by public
(2) The Governor shall cause every notification, direct that the provisions of this
recommendation made by the Commission Part shall apply to any Union territory or part
under this article together with an explanatory thereof subject to such exceptions and
memorandum as to the action taken thereon to modifications as he may specify in the
be laid before the Legislature of the State. notification.
Art. 243Z. Audit of accounts of Art. 243ZC. Part not to apply to certain
Municipalities.-The Legislature of a State may, areas.-
by law, make provisions with respect to the (1) Nothing in this Part shall apply to the
maintenance of accounts by the Municipalities Scheduled Areas referred to in clause (1), and
and the auditing of such accounts. the tribal areas referred to in clause (2), of article
Art. 243ZA. Elections to the 244.
Municipalities.- (2) Nothing in this Part shall be construed to
(1) The superintendence, direction and control of affect the functions and powers of the Darjeeling
the preparation of electoral rolls for, and the Gorkha Hill Council constituted under any law
conduct of, all elections to the Municipalities for the time being in force for the hill areas of
shall be vested in the State Election Commission the district of Darjeeling in the State of West
referred to in article 243K. Bengal.

149
(3) Notwithstanding anything in this (3) Every District Planning Committee shall, in
Constitution, Parliament may, by law, extend the preparing the draft development plan,- (a) have
provisions of this Part to the Scheduled Areas regard to- (i) matters of common interest
and the tribal areas referred to in clause (1) between the Panchayats and the Municipalities
subject to such exceptions and modifications as including spatial planning, sharing of water and
may be specified in such law, and no such law other physical and natural resources, the
shall be deemed to be an amendment of this integrated development of infrastructure and
Constitution for the purposes of article 368. environmental conservation; (ii) the extent and
Art. 243ZD. Committee for district type of available resources whether financial or
planning.- otherwise; (b) consult such institutions and
(1) There shall be constituted in every State at organisations as the Governor may, by order,
the district level a District Planning Committee specify.
to consolidate the plans prepared by the (4) The Chairperson of every District Planning
Panchayats and the Municipalitiies in the district Committee shall forward the development plan,
and to prepare a draft development plan for the as recommended by such Committee, to the
district as a whole. Government of the State.
(2) The Legislature of a State may, by law, make Art. 243ZE. Committee for
provision with respect to- (a) the composition of Metropolitan planning.-
the District Planning Committees; (b) the (1) There shall be constituted in every
manner in which the seats in such Committees Metropolitan area a Metropolitan Planning
shall be filled: Provided that not less than four- Committee to prepare a draft development plan
fifths of the total number of members of such for the Metropolitan area as a whole.
Committee shall be elected by, and from (2) The Legislature of a State may, by law, make
amongst, the elected mambers of the Panchayat provision with respect to- (a) the composition of
at the district level and of the Municipalities in the Metropolitan Planning Committees; (b) the
the district in proportion to the ratio between the manner in which the seats in such Committees
population of the rural areas and of the urban shall be filled: Provided that not less than two-
areas in the district; (c) the functions relating to thirds of the members of such Committee shall
district planning which may be assigned to such be elected by, and from amongst, the elected
Committees; (d) the manner in which the members of the Municipalities and Chairpersons
Chairpersons of such Committees shall be of the Panchayats in the Metropolitan area in
chosen. proportion to the ratio between the population of
the Municipalities and of the Panchayats in that

150
area; (c) the representation in such Committees development plan, as recommended by such
of the Government of India and the Government Committee, to the Government of the State.
of the State and of such organisations and Art. 243ZF. Continuance of existing
institutions as may be deemed necessary for laws and Municipalities.- Notwithstanding
carrying out the functions assigned to such anything in this Part, any provision of any law
Committees; (d) the functions relating to relating to Municipalities in force in a State
planning and coordination for the Metropolitan immediately before the commencement of THE
area which may be assigned to such CONSTITUTION (Seventy-fourth Amendment)
Committees; (e) the manner in which the Act, 1992, which is inconsistent with the
Chairpersons of such Committees shall be provisions of this Part, shall continue to be in
chosen. force until amended or repealed by a competent
(3) Every Metropolitan Planning Committee Legislature or other competent authority or until
shall, in preparing the draft development plan,- the expiration of one year from such
(a) have regard to- (i) the plans prepared by the commencement, whichever is earlier: Provided
Municipalities and the Panchayats in the that all the Municipalities existing immediately
Metropolitan area; (ii) matters of common before such commencement shall continue till
interest between the Municipalities and the the expiration of their duration, unless sooner
Panchayats, including co-ordinated spatial dissolved by a resolution passed to that effect by
planning of the area, sharing of water and other the Legislative Assembly of that State or, in the
physical and natural resources, the integrated case of a State having a Legislative Council, by
development of infrastructure and environmental each House of the Legislature of that State.
conservation; (iii) the overall objectives and Art. 243ZG. Bar to interference by
priorities set by the Government of India and the courts in electoral matters.- Notwithstanding
Government of the State; (iv) the extent and anything in this Constitution,- (a) the validity of
nature of investments likely to be made in the any law relating to the delimitation of
Metropolitan area by agencies of the constituencies or the allotment of seats to such
Government of India and of the Government of constituencies, made or purporting to be made
the State and other available resources whether under article 243ZA shall not be called in
financial or otherwise; (b) consult such question in any court; (b) no election to any
institutions and organisations as the Governor Municipality shall be called in question except
may, by order, specify. by an election petition presented to such
(4) The Chairperson of every Metropolitan authority and in such manner as is provided for
Planning Committee shall forward the

151
by or under any law made by the Legislature of 12. Provision of urban amenities and facilities
a State.'. such as parks, gardens, playgrounds.
This Amendment Act has made certain 13. Promotion of cultural, educational and
Amendment in Article 280. In clause (3) of aesthetic aspects.
article 280 of the Constitution, sub-clause (c) 14. Burials and burial grounds; cremations,
shall be relettered as sub-clause (d) and before cremation grounds and electric crematoriums.
sub-clause (d) as so relettered, the following 15. Cattle pounds; prevention of cruelty to
sub-clause shall be inserted, namely:- "(c) the animals.
measures needed to augment the Consolidated 16. Vital statistics including registration of births
Fund of a State to supplement the resources of and deaths.
the Municipalities in the State on the basis of the 17. Public amenities including street lighting,
recommendations made by the Finance parking lots, bus stops and public conveniences.
Commission of the State;". 18. Regulation of slaughter houses and
This Amendment Act added Twelfth tanneries.''.
Schedule. (Article 243W) for - In the matter of reservations, elections,
1. Urban planning including town planning. power of taxation, formulation and
2. Regulation of land-use and construction of implementation of development projects,
buildings. constitution of a Finance Commission, fixed
3. Planning for economic and social term, etc., the provisions were very similar to
development. those in the 73rd Amendment in respect of
4. Roads and bridges. Panchayats.
5. Water supply for domestic, industrial and It gives constitutional status to the
commercial purposes. municipalities and has brought them under the
6. Public health, sanitation conservancy and purview of judicial review. In other words, the
solid waste management. state governments are under a constitutional
7. Fire services. obligation to add this new system of
8. Urban forestry, protection of the environment municipalities in accordance with the provisions
and promotion of ecological aspects. of the Act. The Act aims at revitalizing and
9. Safeguarding the interests of weaker sections strengthening the urban governments so that
of society, including the handicapped and they may function as effective units of local
mentally retarded. government.
10. Slum improvement and upgradation.
11. Urban poverty alleviation.

152
The Municipal Government: manner in which the seats in a ward committee
The Act provides for the constitution of should be filled. It may also make provisions for
three kinds of municipalities in every state: the constitution of committees in addition to the
(1) Nagar panchayats for areas in transition wards committees.
from a rural area to an urban area. The reservation of seats for the Scheduled
(2) Municipal councils for smaller urban areas. Castes and the Scheduled Tribes in every
(3) Municipal corporation for larger urban municipality in proportion of their population to
areas. the total population in the municipal area has
A transitional area, a smaller urban area or been provided by the statute. It also provides for
a larger urban area means such areas as the the reservation of not less than one-third of the
governor may specify by public notification for total number of seats for women including the
this purpose with regard to (1) population number of seats reserved for women belonging
density, (2) revenue and (3) percentage of to the SCs and the STs.
employment in non-agricultural activities. All The state legislature may provide for the
the members of a municipality are elected manner of offices of chairpersons in the
directly by the people of the municipal area. For municipalities for the SCs, the STs and the
this purpose, each municipal area is divided into women. It may also make any provision for the
territorial constituencies to be known as wards. reservation of seats in any municipality or
The state legislature provides the manner of offices of chairpersons in municipalities in
election of the chairperson of a municipality. favour of backward classes. The term of office
It may also provide the representation of for every municipality is 5 years.
persons having special knowledge or experience However, it can be dissolved before the
in municipal administration, the members of the completion of its term. The fresh election to
Lok Sabha, the state legislative assembly, the constitute a municipality have to be completed
Rajya Sabha and state legislative council and the (i) before the expiry of its duration of five years;
chairpersons of committees. Ward committees or (ii) in case of dissolution, before the expiry of
shall be constituted consisting of one or more a period of six months from the date of its
wards, within the territorial area of a dissolution.
municipality having population of three lakhs or A person shall be disqualified for being
more. chosen as or for being a member of a
The state legislature may make provision municipality if he is so disqualified under any
with respect to the composition and the law for the time being in force for the purposes
territorial area of a wards committee and the of elections to the legislature of the state

153
concerned; or under any law made by the state Governor about the principles which should
legislature. However, no person shall be govern the distribution between the state and the
disqualified on the ground of age if he has municipalities, the net proceeds of the taxes,
attained the age of 21 years. All questions of duties, tolls and fees levied by the state, the
disqualifications shall be referred to such determine of the taxes, duties, tolls and fees
authority as the state legislature may determine. which may be assigned to the municipalities and
The Election Commission of the state shall the grants-in-aid to the munic ipalities from the
have the power of superintendence, direction Consolidated Fund of the state.
and control of the preparation of electoral rolls The commission may recommend other
and the conduct of all elections to the matters referred by the Governor in the interests
municipalities. The state legislature has been of sound finance of municipalities. The Central
vested with the power to endow the Finance Commission may also suggest the
municipalities with authority as may be measures needed to augment the Consolidated
necessary to enable them to function as Fund of a state to supplement the resources on
institutions of self-government. the basis of the recommendations made by the
The scheme may contain provisions for the Finance Commission of the state.
devolution of powers and responsibilities with The state legislature makes provisions
respect to the preparation of plans for with respect to the maintenance of accounts and
development and social justice; and the auditing of such accounts. The Act does not
implementation of schemes, regarding 18 apply to the Scheduled Area and Tribal Areas
matters listed in the Twelfth Schedule. The state (Article 244) and does not affect the functions
legislature can authorize a municipality to levy, and powers of the Darjeeling Gorkha Hill
collect and appropriate taxes, duties, tolls and Council of West Bengal. The President may
fees, levied and collected by them or by the state extend the provinces to union territories with
government. It may provide for making grants- exceptions.
in-aid to the municipalities from the Every state has to constitute a District
Consolidated Fund of the state; and provide for Planning Committee to consolidate the plans
constitution of funds for crediting all moneys of prepared by panchayats and municipalities in the
the municipalities. district, and to prepare a draft development plan
The Finance Commission with a term of five for the district as a whole. The state legislature
years is constituted by each state to review the may make provision about the composition of
financial position of panchayats and such committees; and the manner of election of
municipalities. It makes recommendations to the their members.

154
The functions of these committees in relation to municipalities and chairpersons of the
district planning are determined by the panchayats in the metropolitan area from
legislature of the states. Four-fifths of the amongst themselves.
members of a District Planning Committee are The 74th Amendment states that the
elected by the elected members of the district Metropolitan Planning Committee shall prepare
panchayats and municipalities in the district a draft development plan for the area as a whole.
from amongst themselves. Not less than two-thirds of the members of such
The representation of these members in committees are elected by and from amongst the
the committee is in proportion to the ratio elected members of the municipalities and
between the rural and urban population of the chairpersons of the panchayats in the
district. The DPC in preparing the Draft municipalities and the panchayats in that area.
Development Plan gives regard to matters of There were 23 metropolitan
common interest between the panchayats and the agglomerations in the country in 1993. The
municipalities’ spatial planning; sharing of water Draft Development Plan, takes account of local
and natural resources; development of plans in the metropolitan area and the matters of
infrastructure and environment conservation. common interest, hire spatial plans, water and
The plan so prepared by the DPC is sent resource, development, infrastructure and
to the state government by the chairperson of the environ mental conservation. The overall
committee. The Act also provides for the objectives and priorities set by the Government
establishment of a Metropolitan Planning of India and the state government are organised
Committee to prepare a draft development plan. in view of resources available.
The metropolitan area should have a population Like the Eleventh Panchayati Raj
of 10 lakhs or more encompassing one or more Schedule, the 74th Amendment contains the
districts and/or two or more municipalities or Twelfth Schedule of municipal functions which
panchayats as contiguous area. are 18 in number.
The state legislature may make These basic urban functions are:
provisions with respect to composition and (1) Urban planning including town planning
representation in these committees and also their (2) Regulation of land use and construction of
functions in relation to planning and buildings
coordination for metropolitan areas. The Act (3) Planning for economic and social
lays down that two-thirds of the members of a development
metropolitan planning committee have to be (4) Roads and bridges
elected by the elected members of the

155
(5) Water supply for domestic, industrial and bodies and has further provided for unfunctional
commercial purposes local institutions for experimentation in big
ADVERTISEMENTS: cities.
(6) Public health, sanitation, conservancy and The Act creates eight kinds of these
solid waste management urban local bodies for urban areas in states:
(7) Fire services (1) Municipal Corporation
(8) Urban forestry protection of the environment (2) Municipality
and promotion of ecological aspects (3) Notified Area Committee
(9) Safeguarding the interests of weaker sections (4) Town Area Committee
of society including the handicapped and (5) Cantonment Board
mentally retarded. (6) Township
(10) Slum improvement and up gradation (7) Port Trust
(11) Urban poverty alleviation (8) Special Purpose Agency.
(12) Provision of urban amenities and facilities
such as parks, gardens, playgrounds Distribution of legislative powers between the
(13) Promotion of cultural, educational and Union and the States
aesthetic aspects Under the distribution of legislative
(14) Burials and burial grounds, cremations powers between the Union and the States, local
grounds and electric crematoriums government in both rural and urban areas was in
(15) Cattle ponds, prevention of cruelty to the exclusive State List. As it is, all the States-
animals some reluctantly-have passed legislation as
(16) Vital statistics including registration of required under the new constitutional provisions.
births and deaths Elections to local bodies were held in almost all
(17) Public amenities including street lighting, the States. Also, the 73rd and 74th Amendments
parking lots, bus stops and public conveniences do not apply to the States of Meghalaya,
(18) Regulation of slaughter houses and Mizoram, Nagaland and Jammu and Kashmir,
tanneries. the Union Territory of Delhi, hill areas in
The Variety of Urban Local Institution: Manipur and Darjeeling in W. Bengal. Also,
A look on the items of the schedule these do not apply unless extended to Scheduled
indicates that the Act has taken care of a wide Areas and Tribal Areas under Article 244. The
variety of subjects and areas where municipal Constitution (Eighty-third Amendment) of the
planning and services will be needed in future. It year 2000 has added a clause to Article 243M to
preserves the existing structure of urban local provide that reservation of seats for the

156
Scheduled Castes under Article 243D shall not of the federal scheme as also of the basic spirit
apply to the State of Arunachal Pradesh. of Panchayati Raj institutions.
It was hoped that the new Panchayats (ii) Much can be said for and against the ex-
and Municipalities would begin a new era of real officio membership of local Lok Sabha members
representative and participatory democracy with and M.L.A.s on the district and intermediate
nearly three and a half million elected level panchayats.
representatives-one-third of them women (iii) The ground realities indicate that, for their
(increased to fifty percent in some States)- own reasons, those elected to Parliament and
involved in the business of governance all over State Legislatures - the M.P.s, M.L.A.s and
India thereby bringing power to the people M.L.Cs - have not taken very kindly to the
where it belonged. As things stood, matters emerging leadership at the grassroots inasmuch
causing some concern were: as it may constitute a challenge to their
(i) The M.P. Local Area Development Scheme monopoly of political power in the area and
(MPLADS) which places at the disposal of develop into new competitive power centres.
every member of Union Parliament a sum of (iv) The details of functioning of the Local
Rupees two crores every year for being spent in Government institutions are largely left to the
his /her area on his /her recommendation on initiative of the State Governments and are to be
items mentioned in the guide list. There are settled by them. The States have passed vastly
similar schemes placing funds at the disposal of varied laws according to their own perception of
MLAs at the level of States. All the items on what and how much can be devolved on the
which these large funds can be spent at the local authorities. While the States naturally want
discretion of MPs and MLAs are covered by the the Union to transfer more of effective
eleventh and twelfth schedules of the legislative, executive and financial powers in
Constitution listing schemes to be entrusted to wider areas to them, the question is to what
the Panchayats, Municipalities etc. There is extent they would be themselves willing to
constant clamour and pressure for increasing the decentralise further down and share effective
amounts under the LADS for M.~.s, MLAs and power with local self-government institutions. In
MLCs. fact, from the perspective of Chief Ministers and
The Local Area Development Schemes States leadership, it is being argued that the
and the like are tantamount to legislators' foray power and jurisdiction of the States are being
into the area of executive functions. Secondly, seriously eroded on the one hand by the Union
this may seem to be an affront to cind a violation extending its role and on the other by the local
institutions taking over many of its functions

157
and powers. But, so far as the 73rd and 74th The Motilal Nehru Committee report in
Constitution Amendments are concerned, these 1928 recommended the discontinuance of the
do not themselves confer any powers as such on All India Services until the grant of
Panchayats and Municipalities. responsible government to India. During
negotiations at the first Round Table
5. SERVICES AND PUBLIC SERVICE Conference, two Indian members of the
COMMISSIONS Services Sub-Committee also called for
(Articles 308 to 323) immediate and total discontinuance of the All
In a modern democratic polity, civil India Services. Later, Jawaharlal Nehru and
services are an inevitable ingredient of the other leaders were highly critical of the ICS.
governmental apparatus. It is, in fact, the non- Nehru believed that the whole Government of
political and non-elected functionaries who India was controlled by the ICS. The Indian
are responsible for carrying on the Civil Service was the backbone of the
administration under the direction and control administration. The ICS were also described
of the elected representatives of the people as a civilian British army of occupation in
and in accordance with rules and principles. India. The ICS officers enjoyed vast powers
Indian bureaucracy or the civil service and authority to take and implement major
has been one of the most well-known in the decisions in administration. They were
world. In fact, the term 'civil service' was first trained to maintain a distance from the
used for the employees of the East India 'natives'. Referring to them as arrogant and
Company who served in departments other overbearing and contemptuous of public
than military. One of the earliest demands of opinion, Nehru felt that so long as the spirit of
Indian nationalist opinion was to rationalize the ICS-the spirit of authoritarianism-
the structure and functions of the civil service pervaded Indian administration and its public
to provide a greater share to Indians in the services, no new order could be built up. In
administration of their country. As a result of April 1940 Nehru went so far as to declare
increasing pressure and resentment in India, in that the first and foremost task of the
1922 the British Government finally bowed to nationalist government would be to abolish
the demand for holding simultaneous Civil the ICS.
Service examinations in India and England. The fact remains that at the time of
Also, from then on, the Imperial Civil independence, we· inherited a well organized
Services (ICS) were to be called the Indian framework of All India Services. In addition;
Civil Service (ICS). there was a network of central, provincial and

158
subordinate services. There were nearly 1000 executive and the Parliament.
officers in the ICS, roughly half of them were Although matters concerning
Indians. Owing to the state of affairs Government services could be normally
prevailing in the country as well as to avoid regulated by laws and the power to lay down
creation of any void in the Services, the detailed rules for recruitment and conditions
Interim Government under Nehru promised of service of the Union and State employees
those who were inclined to continue in the was left to the respective legislatures (vide
service "the same terms as to scales of pay, entry 70 of List I and entry 41 of List II), the
leave, pension rights and safeguard in matters Constitution-makers deemed it most prudent
of discipline as hitherto". A resolution to this to assure the services by providing some
effect was incorporated in the Indian constitutional guarantees and safeguards in
Independence Act, 1947 and finally in the the matter of recruitment, security of tenure,
Constitution of India (Article 314 which was procedure tor disciplinary action, etc. In this
repealed in 1972 by the Constitution (28th connection, the Constitution also provided
Amendment) Act. for the setting up of an independent Public
Sardar Patel's consistent support for the Service Commission. The provisions for the
rights and privileges for civil servants was Union and State Services applied to the
clearly reflected in his speeches in the whole of India except the State of Jammu &
Constituent Assembly and at other fora. Kashmir (Article 308).
While strongly defending the constitutional Article 309 provided for the regulation
safeguards for the civil services, Sardar Patel of recruitment and conditions of service of
even threatened to resign if such guarantees Union and State Government services by
were not incorporated in the Constitution. He appropriate Legislatures subject to the
almost eulogized the achievements of the provisions of the Constitution. Until any
civil services and asserted that they must get such laws were enacted, the services were to
recognition and praise. be regulated by rules made by the President
The two All India Services, the Indian or the Governor as the case may be.
Administrative Service and the Indian Police Article 310 laid down the principle that
Service, were created in 1946 on the British every Government employee-in a defence
pattern. The attainment of independence and service or a civil service-held his office
the introduction of the system of during the pleasure of the President or the
parliamentary democracy made the civil Governor. It was, however, possible to
services fully accountable to the political provide in special cases by contract to pay

159
compensation for early termination of the penalty was any other than dismissal,
service. Besides, there were special removal or reduction in rank. The Article,
constitutional safeguards in case of certain however, made no distinction between a
high functionaries like the judges of the person holding a temporary post and one
Supreme Court and High Courts, the Chief holding a permanent post.89
Election Commissioner, Comptroller and It has been held that the protection
Auditor-General, members of the Public extended by Article 311 is only procedural in
Service Commissions, etc. who could not be nature and not substantive. No remedy may
removed from their offices except in the lie if all the procedural requirements have
manner laid down in relevant Articles been meticulously fulfilled. In the main these
(124,217,317,324 etc.). Also, separate requirements are (a) that specific charges
provisions were made for regulating the must be framed against a civil servant
recruitment and conditions of service of proposed to be proceeded against; (b) the
certain categories of public servants, e.g. charges must be formally conveyed; (c) he
officers and staff of Legislature Secretariats must be provided a reasonable opportunity of
(Articles 98 and 187), employees of the answering the charges; (d) he must be given
Supreme Court and the High Courts (Articles an opportunity of defending himself by cross
146 and 299) and persons serving the Indian examining the witnesses and adducing all
Audit and Accounts Department (Article evidence on which he relies; and (e) the
148). Article 309 did not apply to them. decision in the matter must be based on the
Article 311 sought to place certain facts and materials placed before the
limitations on the exercise of the pleasure enquiring authority and no materials should
principle in respect of civil servants. Thus, no be relied upon without the civil servant
civil servant could be dismissed or removed concerned having an opportunity to examine
by an authority subordinate to the appointing and explain them. The basic principle is that
authority and no civil servant could be the enquiry must follow rules of natural
dismissed or removed or reduced in rank justice.90
except after an enquiry informing him of the Article 311, it has been held, would not
charges against him and giving him a be attracted if there are no penal
reasonable opportunity of being heard in
respect of those charges. The protection was 89
. Narasimhachar v. State of My sore, AIR 1960 SC
not available to defence employees and even 247; Parshotam v. Union of India, AIR 1958 SC
36; State of Punjab v. Ram, AIR 1992 SC 2188.
in case of civil employees it did not apply if 90
. Union of India v. Verma, AIR, 1957 SC 882.

160
consequences like loss of salary, allowances (c) when the President or the Governor as the
or pension accompanying the action against case may be is satisfied that in the interest of
him. Whatever the words used, if these the security of the State it is not expedient to
amount to removal or dismissal, the Article hold such an enquiry.
would apply. If the services are terminated in All India services are distinguished from
accordance with the terms of the contract or Central and State services inasmuch as
on superannuation or by way of compulsory members of Central services are concerned
retirement as per procedure for the same, with only the affairs of the Union and those
Article 311 would not provide any protection. of State services with State matters while
In case of reduction of rank also, the test is members of the All India services are
whether any penal consequences are common to the Union and the States and
involved. A person holding a post in a serve by turns both the Union and State
substantive capacity cannot be brought down Governments. Two All India services-the
to a lower post without following the Article Indian Administrative Service and Indian
311 procedure of enquiry, etc. But, if it is Police Service-are mentioned in the
reversion to the substantive post from an Constitution itself. Article 312 lays down that
officiating one, it is not reduction in rank for if Rajya Sabha passes a resolution by two-
purposes of Article 311 unless there are any thirds majority to the effect that it is
91
penal consequences. necessary or expedient in national interest to
The Supreme Court has, however held create one or more all India services,
that the Government before deciding to retire including All India Judicial Service,
a Government employee compulsorily from Parliament may by law provide for such
service, have to consider his entire record services. Parliament has under this Article
including the latest reports.92 enacted the All India Services Act, 1951
The enquiry contemplated in Article 311 creating certain all India Services in addition
may, however, be dispensed with in certain to the IAS and the IPS which had been
cases like (a) when the person has been already created in 1948. Article 312 also
convicted on a criminal charge; (b) where the empowers Parliament to regulate the
appropriate authority records in writing recruitment and conditions of service of
reasons for the enquiry not being practicable; persons appointed to All India services.
Article 312A inserted by the
91
. Parshotam v. Union of India. Constitution (28th Amendment) Act, 1972
92
. State of Orissa v. Ram Chandra Dass, AIR 1996
SC 2436. empowers Parliament to vary or revoke

161
conditions of service of persons appointed to office for a fixed term of six years or until the
the Civil Service of the Crown in India before age of 65 in case of the Union and 62 in case
the commencement of the Constitution. of the State Commissions. A Commission
Article 313 contains a transitional provision member is not removable from his office
saying that until otherwise provided, all the except in case of insolvency, infirmity of
laws in force applicable to any public service mind or body, on engaging in another paid
would continue. Article 314 which sought to employment or on being found by the
provide protection to existing officers of Supreme Court guilty of proved
certain services was repealed by the 28th misbehaviour, for having an interest in a
Amendment. Government contract or sharing the profits of
Public Service Commissions any such contract or agreement. Member of a
Article 315 lays down that there shall Public Service Commission on expiration of
be a Public Service Commission for the his term of office is ineligible for
Union and a Public Service Commission for reappointment to that office (Articles 316
each State. Two or more States may opt for a 317).93
Joint Commission. On request, the Union Article 318 provides that the terms and
Service Commission may also agree to serve conditions of service of a member of the
all or any of the needs of a State. Commission cannot be varied to his
The Public Service Commissions are disadvantage after his appointment. The
envisaged as independent constitutional President or the Governor as the case may be
institutions not subject to governmental or may determine the number of members and
political interference or control and charged staff of the Commission and regulate their
with the responsibility of recruitment and conditions of service.
management of public services. All expenses Members of the Commissions are not
of the Union and State Service Commissions eligible for any other appointment under the
94
are charged on the Consolidated Fund of the Government. The Chairman of a State
Union or the State concerned (Article 322). Commission can become a member or
The Chairman and members of the chairman of UPSC or chairman of another
Public Service Commissions are appointed by State Commission. A member of the UPSC is
the President or the Governor as the case may
be. As nearly as may be, half of the members 93
. U.P. Public Service Commission v. Suresh, AIR 1-
must have had ten years' service in the Union 987 SC 1953; Hargovind v. Raghukul, AIR 1979
SC 1109
or a State Government. Members shall hold 94
. Union of India v. U.D.Dwivedi, AIR 1997 SC 1313.

162
 eligible to become chairman of UPSC or of a cannot expect a remedy in a court of law
State Commission and a member of a State under Article 320. But where consultation is
Commission is eligible to become a member provided for by law or regulation, it will
or chairman of UPSC or any State constitute a legal obligation (Articles 320 321
Commission (Article 319). and 323).95
The functions of Public Service Administrative tribunals
Commissions are: The Constitution (Forty-Second
i. to conduct examinations for appointment Amendment) Act, 1976 inserted a new part-
to the services of the Union/State; Part XIV A-and Articles 323A and 323B to
ii. to make recommendations to the empower Parliament and State Legislatures to
Union/State Government for set up by law administrative tribunals for the
appointment of persons to its services; adjudication of disputes and complaints in all
iii. to be consulted in regard to method of service matters relating to recruitment and
recruitment, principles in matters of conditions of service of public employees.
appointments, promotions, transfers Tribunals may also be set up for certain other
from one service to another, and matters like taxation, labour and industry,
disciplinary matters of civilian land reforms, elections, rent laws etc. Several
employees; such tribunals have since been set up,
iv. to advise on any other matter that may excluding the jurisdiction of certain level of
be referred by the President/ Governor; Courts. Thus the Administrative Tribunals
v. on request to assist two or more States in Act 1985 setting up tribunals for resolving
regard to schemes for joint recruitment; service disputes takes away the jurisdiction of
vi. to present an annual report to the High Courts while appeal lies to the Supreme
President/Governor who shall cause it\to Court under Article 136 only.96 In L. Chandra
be laid before Houses of Kumar v. Union of India (AIR 1997 SC 1125) it
Parliament/State Legislature; was held that clause 2 (d) of Article 323 A
vii. any other function that Parliament/State and clause 3 (d) of Article 323 B are
Assembly may by law assign. 95
. State of U.P. v. Srivastava, AIR 1957 se 912;
The Supreme Court has held that the State of U.P. v. Rajasthan, AIR 1988 SC 162;
function of the Commission is purely Keshav v. U.P. HESC, (1985) SCC 671;
Neelima v. State of Haryana, AIR 1987 SC
advisory and if the Government fails to 169.
96
consult it in any matter specified for . Sampath v. Union of India, AIR 1987 SC 386;
Tamilmani v. Union of India, AIR 1992 SC
consultation, a public servant affected thereby 1120

163
unconstitutional to the extent that they constitutional safeguards under Article
exclude the jurisdiction of the High Courts 311 to ensure that the honest and
and the Supreme Court. efficient officials are given the requisite
Administrative Reforms protection but the dishonest are not
The Constitution Commission allowed to prosper in office. A
(NCRWC-2002) considered all those matters comprehensive examination of the entire
in depth and made recommendations of far- concept of administrative jurisprudence
reaching importance. These included: has to be undertaken to rationalize and
1. The questions of personnel policy Simplify the procedure of administrative
including placements, promotions, and legal action and to bring the theory
transfers and fast-track advancements on and practice of security of tenure in line
the basis of forward-looking career with the experience of the last sixty
management policies and techniques years.
should be managed by autonomous 5. The civil service regulations need to be
Personnel Boards for assisting the high changed radically in the light of
level political authorities in making key contemporary administrative theory to
decisions. introduce modem evaluation
2. Above a certain level-say the Joint methodology.
Secretary level-all posts should be open
for recruitment from a wide variety of 6. ELECTIONS AND ELECTION
sources including the open market. COMMISSION
3. Officials, before starting their career, in (Articles 324 to 329A)
addition to the taking of an oath of The biggest revolution since the
loyalty to the Constitution, should swear Independence of the country was the
to abide by the basic principles of good adoption of universal adult franchise for
governance. elections to the Lok Sabha and the
4. The constitutional safeguards have in Legislative Assemblies of the States. In a
practice acted to shield the guilty against newly independent country with appalling
swift and certain punishment for abuse backwardness, dismal poverty and rampant
of public office for private gain. A major illiteracy, it was an act of faith for the
corollary has been erosion of founding fathers to give a vote to every
accountability. It has accordingly citizen who was not less than 21 years of age
become necessary to re-visit the issue of (since reduced to 18) and not otherwise

164
disqualified under any law on grounds of ordinance given the same position and status as
non-residence, unsoundness of mind, crime the Chief Election Commissioner. Also, the
or corrupt or illegal practice (Article 326). Commission was required to act as a body
Article 324 provides for a single Election taking decisions unanimously or by majority.
Commission to superintend, direct and control The ordinance challenged unsuccessfully by the
all elections to Parliament and to the State Chief Election Commissioner before the
Legislatures and to the offices of the President Supreme Court, was replaced by the Chief
and the Vice-President. The Election Election Commissioner and other Election
Commission shall consist of the Chief Commissioners (Conditions of Service)
Election Commissioner and such number of Amendment Act 1994. It was assented to by the
other Election Commissioners, if any, as the President on 4 January 1994 and given
President may from time to time fix. When retrospective effect from 1 October 1993.
any other Election Commissioners are Article 324 also provides for the
appointed, the Chief Election Commissioner appointment of Regional Commissioners at the
shall act as the Chairman. Until 1989, The time of General Elections after consultation with
Election Commission consisted of the Chief the Chief Election Commissioner. The Chief
Election. Commissioner only. On 16 October Election Commissioner cannot be removed from
1989 two Election Commissioners were his office except in like manner and on like
appointed by a Presidential notification. In grounds as a Judge of the Supreme Court and the
less than three months, however the conditions of his service cannot be varied to his
notification was revoked and the Election disadvantage after his appointment. Other
Commission reverted with effect from 2 January Election Commissioners, if any, can be removed
1990 to being a single member body. It was held only on the recommendation of the Chief
by the Supreme Court that it was entirely for the Election Commissioner.
Executive to decide on the need of Election Article 325 lays down that there shall be
Commissioners other than the Chief Election one general electoral roll for every territorial
Commissioner and that the termination of the constituency for election to either House of
services of two Election Commissioners on the Parliament or to the House or either House of a
abolition of the posts was therefore valid. 97 State Legislature. No person is to be ineligible
Again, in October 1993 two Election for inclusion in the electoral roll on grounds of
Commissioners were appointed and by an religion, race, caste or sex, nor can anyone claim
to be included in any special electoral roll for
97
. Dhanoa v. Union of India, AIR 1991 SC 1745. any such constituency on any such ground.

165
 Article 327 vests legislative power in have earned national and international acclaim.
Parliament to make laws relating to all matters But, right from the first general election [1951-
concerning elections to either House of 52] the need for electoral reforms has been the
Parliament or to the House or either House of a subject of wide ranging debates. Practically
State Legislature, including the preparation of every report of the Election Commission has
electoral rolls, the delimitation of constituencies contained reform proposals and every successive
and all other matters "necessary for securing the Chief Election Commissioner has applied his
due constitution of such House or Houses". mind to this matter. The recommendations of the
Article 328 confers powers on State all party Dinesh Goswami Committee on
Legislatures to make laws relating to elections to Electoral Reforms set up in 1990, also found
the House, or either House of a State wide support. For its part, the Lok Sabha
Legislature. unanimously passed a resolution on electoral
Article 329 seeks to bar interference by reforms, moved by L.K. Advani, which based
courts in electoral matters including (i) the itself to an extent on the above Committee's
validity of any law relating to delimitation of recommendations. The Indrajit Gupta
constituencies or the allotment of seats under Committee (1998) was most particular about the
Article 327 or 328 and (ii) election to either all party agreement on State funding of
House of Parliament or a State Legislature. The elections. The Election Commission reacted to
latter can be questioned only by an election the electoral reform proposals that were sent by
petition presented to such authority and in such the Vajpayee Government for its comments.
manner as may be provided by law by the Also, the Commission made its own proposals.
concerned legislature. Under the Representation The Law Commission published a
of the People Act, the power to decide election voluminous report containing comprehensive
disputes now vests in the High Courts with a reform proposals. NCRWC made an in-depth
right of appeal to the Supreme Court. Disputes study of the problem. Report of NCRWC came
relating to the election of the President or Vice- at the end of March 2002. Before the
President are, however, to be settled by the government could get over the usual
Supreme Court. bureaucratic delays and insensitive ways of
Electoral Reforms dealing with reports of such Commissions, the
During the last six decades, 15 general Supreme Court pronounced its judgement on a
elections for Lok Sabha and very large number public interest petition on 2 May 2002. In its
for different State Assemblies have been held. operative part, the judgment directed the
By an large, these have been free and fair and Election Commission to work out within two

166
months modalities to call for information on political parties and this transparency in the
affidavit from all candidates seeking election to process of elections would include transparency
Parliament or a State Legislature in regard to: of a candidate who seeks election or re-election.
(a) whether the candidate had any conviction, In a democracy, the electoral process has a
acquittal or discharge on a criminal offence strategic role. The little man of this country
in the past, punishment or fine, if any, would have basic elementary right to know full
imposed; particulars of a candidate who is to represent
(b) whether during the six months preceding the him in Parliament where laws to bind his liberty
nomination, the candidate was accused of and property may be enacted.
any offence punishable with imprisonment The right to get information in
for two years or more and charges were democracy is recognised all throughout and it is
framed ,by a court of law with details natural right flowing from the concept of
thereof; democracy.
(c) movable, immovable assets including bank Under our Constitution, Article 19(1)(a)
balances etc of the candidate, spouse and provides for freedom of speech and expression.
dependents; Voters' speech or expression in case of election
(d) liabilities, if any, particularly if there are any would include casting of votes, that is to say,
over dues of public financial institutions or voter speaks out or expresses by casting vote.
government dues; For this purpose, information about the
(e) educational qualifications of the candidate. candidate to be selected is must. Voter's right to
The Supreme Court, inter alia held: Fair know antecedents including criminal past of his
election contemplates disclosure by the candidate contesting election for MP or MLA is
candidate of his past including the assets held by much more fundamental and basic for survival
him so as to give a proper choice to the voter of democracy. The little man may think over
according to his thinking and opinion. If on before making his choice of electing law
affidavit a candidate is required to disclose the breakers as law makers.
assets held by him at the time of election, voter The Election Commission referred the
can decide whether he could be re-elected even Supreme Court Directive to the government
in case where he has collected tons of money. (Ministry of Law) on 14 May 2002 for
To maintain the purity of elections and considering necessary action by way of
in particular to bring transparency in the process legislation or amendment of Rules regarding
of elections, the Commission can ask the nomination papers. The government called an
candidates about the expenditure incurred by the All Party meet to consider the matter on 8 July.

167
Since the two month limit was expiring, the would also be covered by disqualification, and
Election Commission on 28 J lme issued its that (2) disqualification would be for a period of
order which not only called for the information six years from the date of release. Thus the
on the lines indicated by the court but also anomaly of a person being able to seek election
provided for the Returning Officers having the while serving a prison sentence would be
power to reject any nomination on the ground of removed.
the candidate not furnishing the required The Supreme Court put its foot down
information or giving incomplete information. and reiterated its earlier directives regarding
The All-party meeting, attended by disclosure of full information by the candidates.
leaders of 21 parties, as was to be expected, The entire question of electoral reforms
reached a consensus strongly against some of the is embroiled in political controversies and party
sought for disclosures in regard to educational considerations. The main problems are:
qualifications, assets and liabilities etc. and 1) the high cost of elections and the question of
arming the Returning Officers with discretionary finding legitimate funds;
powers to reject nomination papers for none or 2) the role of money, muscle and mafia power
wrong disclosures. After the All party agreement and electoral malpractices;
on a draft legislation and all the drama on the 3) the scourge of communalism, casteism,
issue of an ordinance, the representations made criminalization and corruption;
to the President and his returning the ordinance 4) hung legislatures, instable governments and
to seek some clarifications, the President finally too frequent elections;
signed it and the ordinance was issued. The 5) the large size of constituencies and the
ordinance provided for disqualification of.a question of representative character of
candidate who had been charge-sheeted in two legislators when under the first past the post
courts involving the heinous crimes of murder, system majority of them are elected by
rape, drug smuggling, kidnapping for ransom, minority of votes cast;
treason, terrorist act leading to death etc. during 6) absence of ideology-based healthy party
a period of six months prior to the filing of the system and the prevalence of a large number
nomination. of parties without any internal party
On 4 October 2002, the Union Cabinet democracy;
approved amendments to the effect that (1) 7) Non-participation of people in selection of
besides those charged with crimes like murder candidates.
and rape, those charged under the Prevention of While most of the needed reforms may not
Corruption Act or Prevention of Terrorism Act impact constitutional provisions and may be

168
matters for political consideration, consensus about such criminalisation among the citizenry”,
building, legislative action and administrative Justice Nariman observed.
implementation, all these need to be examined in Justice Nariman wrote in his the
the context of the scheme of the Constitution, judgment that “It appears that over the last four
the nature of the polity and proposals for general elections, there has been an
constitutional review. alarming increase in the incidence of criminals
CRIMINALISATION OF POLITICIANS in politics. In 2004, 24% of the Members of
AND POLITICAL PARITES Parliament had criminal cases pending against
The significant development of them; in 2009, that went up to 30%; in 2014 to
criminalization of politicians and political 34%; and in 2019 as many as 43% of MPs had
parties raise public and court's alarm at the criminal cases pending against them”. He
unimpeded rise of criminals, often facing ordered political parties to submit compliance
heinous charges like rape and murder, reports with the Election Commission of India
encroaching into the country's political and within 72 hours or risk contempt of court action.
electoral scenes. Information should be detailed
th
So, the Supreme Court on 13 Feb. 2020 • The published information on the criminal
ordered political parties to publish the entire antecedents of a candidate should be
criminal history of their candidates for detailed and include the nature of their
Legislative Assembly and Lok Sabha elections offences, charges framed against him, the
along with the reasons that goaded them to field court concerned, case number, etc.
suspected criminals over decent people. • A political party should explain to the
The four-page judgment was based on a public through their published material how
contempt petition filed by advocate Ashwini the “qualifications or achievements or
Upadhyay about the general disregard shown by merit” of a candidate, charged with a crime,
political parties to a 2018 Constitution Bench impressed it enough to cast aside the smear
judgment (Public Interest Foundation v. Union of his criminal background.
of India) to publish the criminal details of their • A party would have to give reasons to the
candidates in their respective websites and print voter that it was not the candidate’s “mere
as well as electronic media for public awareness. winnability at the polls” which guided its
“In this judgment (2018), this court was decision to give him ticket to contest
cognisant of the increasing criminalisation of elections.
politics in India and the lack of information

169
Vacation of Seats: Article 101 lays down that a
member shall be required to vacate his seat in a
House if he is elected to both Houses of
Parliament or to a House of State Legislature. In
the latter case, if the member does not resign his
seat in the State Legislature within a period of
14 days from the date of publication of the
election result, his seat in the House of
Parliament may be declared vacant. A seat may
also stand vacated if a member becomes subject
to any disqualification or voluntarily resigns his
seat. The House may declare a seat vacant if the
concerned member fails to attend the House for
more than 60 days without permission.
This information should be published in
a local as well as a national newspaper as well as
the parties’ social media handles. It should
mandatorily be published either within 48 hours
of the selection of candidates or less than two
weeks before the first date for filing of
nominations, whichever is earlier.

170
 MODULE - 08
OTHER CONSTITUTIONAL PROVISIONS

1. BORROWING (Articles 292 to 293) The executive power of the Union and
The executive power of the Union of each State shall extend to carrying on any
extends to borrowing upon the Consolidated trade or business and to acquire, hold or dispose
Fund of India within limits, if any, set by of property and make contracts subject to any
Parliament by law (Article 292). A State could law made by the respective legislature (Article
also similarly borrow subject to limits set by law 298). This Article obviously is an independent
by the State Legislature. Government of India, or additional source of executive power outside
within its borrowing powers, could make loans Article 245. The Supreme Court in Khazan
to any State or give guarantees in respect of Singh v. State of U.P. (AIR 1974 SC 669) Held
loans raised by the State. So long as any of such that the power of a State under Article 298 to
loans remained outstanding, the State carryon trade etc. extends to carrying on a trade
Government could not raise any further loans in other States also.98
without consent of Government of India (Article All contracts made in the exercise of the
293). executive power of the Union or of a State (i)
are to be expressed in the name of the President
2. PROPERTY, CONTRACTS, RIGHTS, or the Governor as the case may be and (ii) shall
LIABILITIES, OBLIGATIONS AND SUITS be executed by such officers and (iii) in such
(Articles 294 to 300) manner as may be laid down by him. No
Articles 294, 295 and 296 provide that personal liability is to attach to the President or
any property, assets, rights, liabilities and the Governor or to the persons executing the
obligations vesting in or accruing to the contracts etc. (Article 299). It clearly follows
Government of the Dominion or of any of the that Article 299 is mandatory and no contracts
Provinces or of any of the Indian States before etc. are valid unless they are entered into strictly
the commencement of the Constitution shall vest in accordance with the requirements of this
in the Union or the concerned State. provision.99
Things of value within territorial waters
or continental shelf and resources of the 98
. Also see Anraj v. State of Maharashtra, AIR 1984
exclusive economic zone shall vest in the Union SC 781
99
. Bihar F.G.F. Cooperative Society v. Sipahi Singh,
(Article 297). AIR 1977 SC 2149; Mu/anchand v. State of M.P.,
AIR 1968 SC 1818; State of West Bengal v. B.K.

171
 The Government of India or of a State 3. FREEDOM OF TRADE, COMMERCE
may sue or be sued by its name subject to any AND INTERCOURSE
law made by Parliament or the State Legislature. (Articles 301 to 307)
If the Dominion of India was a party in any suit, Article 301 lays down that trade,
the Union of India will stand substituted and if a commerce and intercourse throughout the
Province or Indian State was a party it will be territory of India shall be free. Parliament may,
substituted by the corresponding State (Article however, impose by law restrictions in public
300). interest on inter-State trade, commerce and
Right to Property: Originally the intercourse (Articles 301 and 302). Neither
Constitution had incorporated the right to Parliament nor a State Legislature can make a
property as a fundamental right under Articles law that gives preference to one State over
19(£) and 31. The 44th Constitution Amendment another in the matter of trade and commerce
omitted Articles 19(f) and 31 with effect from except that Parliament may by law authorize
20 June 1979. Simultaneously, a new Article- discrimination that may become necessary for
Article 300Awas added to lay down that "no dealing with a situation of scarcity of goods in
person shall be deprived of his property save by any part of India (Article 303).
authority of law". Thus, the right to property Regulatory measures or a compensatory
ceased to be a fundamental right but remained a legislation imposing tax for facilitating trade
constitutional right and a legal right. In case of cannot be considered violative of the freedom of
the violation of the right under Article 300A, trade. Both intra State and inter State trade are
while the Supreme Court's writ jurisdiction covered by the freedom of trade provision.
under Article 32 cannot be invoked, High Court Trade, commerce and intercourse include
101
can certainly be approached under Article 226. movement of goods and persons.
Validity of a law passed under Article 300A can Freedom of trade etc. under Article 301
be challenged on the ground of no provision is subject to restrictions under Articles 302 and
being made for payment of compensation for 303. Also, under Article 304, a State may
100
depriving a citizen of his property. impose a tax on goods coming from another
State if similar goods from within the State are
subject to a similar tax so as to ensure that there

Mondal, AIR 1962 SC 779; Karamshi v. State of

101
Bombay, AIR 1964 SC 1714. . Atiabari Tea Ca. v. State of Assam, AIR 1961 SC
100
. Bishamber v. State of U.P., AIR 1982 SC 33; 237; Automobile Transport v. State of Rajasthan,
Maneka Gandhi v. Union of india, AIR 1978 SC AIR 1962 SC 406; State of Bihar v. Harihar
597. Also see under Fundamental Rights Prasad Debuka (1989) 2 SCC.

172
is no discrimination between the goods from the anywhere in India to conserve its distinct
other State and those manufactured within the language, script or culture. No citizen can be
State. Restrictions may also be imposed by the denied admission in any educational institution
State by law in public interest but a Bill for this maintained or aided by the State on grounds of
purpose can be introduced only with the prior language, religion, etc. Article 30 seeks to
sanction of the President. Nothing in Articles protect the rights of all minorities-based on
301 and 303 shall affect the existing laws and religion or language-to establish and administer
laws providing for State monopolies (Article educational institutions of their choice. The State
305). is enjoined not to discriminate against any
Article 307 provides for the Parliament educational institution on the ground of its
appointing an appropriate authority for language or religion-based management. (See
implementing the provisions of Articles 301 to under the 'Fundamental Rights' chapter).
304. Article 350A inserted by the Seventh
The Constitution Commission Amendment provides for local authorities in
(NCRWC) recommended that for carrying out every State endeavoring to extend adequate
the objectives of Articles 301, 302, 303 and 304, facilities for instruction in the mother tongue at
and other purposes relating to the needs and the primary stage of education to children
requirements of inter-State trade and commerce belonging to linguistic minority groups and for
and for purposes of eliminating barriers to inter- the President issuing necessary directions to any
State trade and commerce Parliament should, by State. The term 'linguistic minority group' has
law, establish an authority called the "Inter-State been interpreted to mean a group of people who
Trade and Commerce Commission" are in a numerical minority in a State as a whole
as distinguished from any particular area or
4. OFFICIAL LANGUAGE region thereof.102
(Articles 343 to 351) Article 350B provides for the
Although there is a separate Part-Part appointment by the President of a special officer
XVII-devoted to 'Official Language', provisions for linguistic minorities to investigate matters
pertaining to language are spread over different concerning safeguards for linguistic minorities
parts and chapters of the Constitution. and to report to the President at such intervals as
Protection of Linguistic Minority Rights and the President may direct. All such reports may
Non-Discrimination on Grounds of Religion
Article 29 enunciates the fundamental 102
. In re Kerala Education Bill, AIR 1958 SC 956
right of any section of citizens residing

173
be laid before Houses of Parliament and sent to official language of the Union proved to be the
the State Governments concerned. most intractable. Finally, under a compromise
Language of Legislatures formula embodied in Article 343, Hindi in
Article 120 lays down the official Devanagari script was accepted as the official
language of Parliament. It says inter alia that the language of the Union with the international
business in Parliament shall be transacted in form of Indian numerals. For a period of 15
Hindi or in English. The Presiding Offi.cer of years, English was allowed to be continued to be
either House may, however, permit any member used and even thereafter Parliament could by
who cannot adequately express himself in Hindi law provide for the use of English or Devanagari
or English to address the House in the mother form of numerals for any specified purposes.
tongue. Arrangements have since been made in Article 344 provided for the setting up
both the Houses of Parliament for simultaneous of a Commission after five years and thereafter
interpretation of speeches from major regional every ten years to make recommendations to the
languages into Hindi and English. In actual President as to (i) the progressive use of Hindi
practice, however, most of the time, the entire f6r official purposes, (ii) restricting the use of
business in either House is carried on in Hindi or English for official purposes, (iii) the language
English with full facilities of simultaneous to be used in the Supreme Court and the High
interpretation from Hindi to English and vice Courts, (iv) form of the numerals to be used and
versa. (v) any other matter regarding the official
The corresponding language provision language of the Union and the language of
for State Legislatures is Article 210. Business in communication between the Union and a State
a State Legislature may be transacted either in or between the States. The Commission was
the official language or languages of the State or expected to pay due regard to the needs of
in Hindi or in English and the Presiding Officer industrial, cultural and scientific advancement of
of a House may allow a member who cannot India and the just claims and interests of the
adequately express himself in any of these non-Hindi speaking areas in regard to public
languages to address the House in his mother services.
tongue. Article 344 also provide for the
Official Language of the Union constitution of a 30 member committee of the
Of the many formidable problems that members of the two Houses of Parliament to
the founding fathers of our Constitution faced, examine the recommendations of the
the question of establishing any one of our Commission and to report to the President who
languages as a national language or even as an could issue necessary directions thereon. Under

174
Article 349, no Bill or amendment in regard to subjects. Later, candidates were given the option
language was to be allowed except after to write their answers in anyone of the
consideration of this committee report by the recognized languages specified in the 8th
President. The first Official Language Schedule.
Commission was appointed in 1955. It Regional Languages and Link Language
submitted its report in 1956. The report was Article 345 seeks to tackle the issue of
examined by the Committee of the members of the official language for each State and the
the two Houses of Parliament and its opinion language for inter-State communication at the
submitted to the President who issued an order governmental level The legislature of a State
on 27 April 1960 constituting a Standing may by law adopt anyone or more of the
Commission for evolution of Hindi terminology languages in use in the State or Hindi for all or
for scientific, administrative and legal literature any of the official purposes and until that is
and the translation of English works into Hindi. done, English may continue to' be used as
Actually, under this order, two Commissions hithertofore. The language authorized to be used
were constituted, one under the then Ministry of as the official language of the Union shall be
Education and the other under the Ministry of ,the official language for communication
Law, to evolve Hindi equivalents. The order between the States and between a State and the
inter alia provided for continuance of English as Union. But, two or more States were free to
the medium of UPSC examinations with Hindi agree to use Hindi for communication between
being introduced later as an alternative medium. themselves (Article 346).
Parliamentary legislation was to continue to be If a substantial proportion of the
in English but authorized Hindi translations population of a State demand and the President
were to be provided. is satisfied, he or she may order that the
As a follow-up of the report of the First language used by them may also be officially
Official Language Commission and under recognized throughout the State or in any part
Article 343, Parliament enacted the Official thereof for such purposes as may be specified.
Language Act, 1963. The Act laid down that The 1963 Official Language Act
even after 15 years, English may continue to be provided that for purposes of communication
used along with Hindi for all official purposes of between the Union and the non Hindi states,
the Union and also for transaction of business in English shall be used and where Hindi is used
Parliament. for communication between a Hindi and a non-
Hindi was introduced as an alternative Hindi State, such communication shall be
medium for UPSC examinations in certain accompanied by an English translation.

175
Language of Higher Courts and citizen, was entitled to submit a representation
Authoritative Texts of Laws etc. for redress of any grievance to any officer or
Until Parliament by law provides authority of the Union or a State in any of the
otherwise, all proceedings in the Supreme Court languages used in the Union or in the State, as
and in every High Court are to be in English. the case may be. Thus, no government
Also, the authoritative texts of all Bills, department, agency or officer can refuse to
amendments, Acts, ordinances, orders, rules, entertain a representation on the ground of its
regulations and bye-laws at the Union and State not being in the official language.
levels have to be in English only. However, the Development of Hindi
Governor of a State may with the prior consent Under Article 351, the Union is duty
of the President, authorize the use of Hindi or bound to promote the spread and development of
any language used for any official purposes of the Hindi language so that it may serve as a
the State in the proceedings of the High Court of medium of expression for all the elements of the
the State provided that the judgments, decrees composite culture of India and to secure its
and orders must continue to be in English. enrichment by assimilating without interfering
(Article 348). with its genius, the forms, style and expressions
The 1963 Official Language Act, used in Hindustani and in other languages of
provided that Hindi translation of Acts etc. India specified in the Eighth Schedule and by
published under the authority of the President drawing, where necessary or desirable, its
shall be deemed to be authoritative and that vocabulary, primarily on Sanskrit and
every Bill or amendment shall be accompanied secondarily on other languages.
by a Hindi translation. A harmonious reading of the language
The 1963 Act similarly provided for a provisions, particularly of Articles 343, 344 and
Hindi translation of State Acts etc. in certain 351, would show that the ultimate goal is the
cases. For High Court judgments etc., the Act spread and development of Hindi and the
provided for the optional use of Hindi or other gradual switchover to its use for official
official language subject to the Governor purposes and as a link language. There is no
obtaining the prior consent of the President and violation of Article 351 if use of English is
an English translation accompanying the extended beyond 15 years but the power given
judgment etc. to Parliament under Article 343 is only to
Language of Public Grievances specify the particular purposes for which
Article 350 made the very significant English may continue to be used by the Union
provision that every person, i.e. not only a depending upon the progress made by Hindi as

176
the official language. 103 In Dalavi v. State of
Tamil Nadu (AIR 1976 S.C. 1559), the Supreme
Court annulled an order of the State Government
sanctioning pension to anti-Hindi agitators. The
Court held that the order violated Article
351inasmuch as it excited emotion against Hindi
instead of promoting it.
Authorized Hindi Text of the Constitution
A new Article 394A inserted by the 56th
Amendment Act provided for an authoritative
text of the Constitution in the Hindi language.
An authoritative Hindi text of the Constitution
has since been published.
The Eighth Schedule
Besides Hindi, our Constitution also
recognizes other languages and the need for their
development. The 22 languages of India listed in
the Eighth Schedule are: Assamese, Bengali,
Gujarati, Hindi, Kannada, Kashmiri, Konkani,
Malayalam, Manipuri, Marathi, Nepali, Oriya,
Punjabi, Sanskrit, Sindhi, Tamil, Telugu, Urdu,
Bodo, Dogri, Maithili and Santhali. The last four
were added by the Constitution (92nd
Amendment) Act, 2013.

103
. Union of India v. Murasoli, AIR 1977 SC 225

177
 MODULE - 09
EMERGENCY PROVISIONS
GROUNDS, APPROVAL FOR CONTINUATION AND EFFECTS

The term 'emergency' may be defined as that is, the one under Article 356 arising from a
'a difficult situation arising suddenly and failure of the constitutional machinery in any
demanding immediate action by public particular State and necessitating President's
authorities under powers specially granted to rule, though included under the Part on
them by the Constitution or otherwise to meet 'Emergency Provisions', may not strictly
such exigencies'. speaking be considered an emergency situation.
The founding fathers of our Constitution
felt that extraordinary situations could arise I. NATIONAL EMERGENCY
under which it might not be possible for the Article 352 provides that if the
normal scheme of the Constitution to function President, after receiving a written
and it might become necessary to suspend the communication of a Cabinet decision, is
operation of certain parts or provisions to protect satisfied that a grave emergency exists whereby
the independence and the security of the nation the security of India or any part thereof is
and to safeguard the Constitution and the threatened by war, external aggression or armed
democratic system. rebellion, he may issue a proclamation of
Dr. Ambedkar claimed that the Indian emergency for the whole of India or part thereof.
federation was unique and unlike any other He may also issue different proclamations on
federation inasmuch as in times of emergency it different grounds. Every Proclamation of
could convert itself into an entirely Unitary Emergency is required to be laid before each
State. The position was upheld by the Supreme House of Parliament, and is to cease to operate
Court in Gulam Sarwtar v. Union of India104. at the expiration of one month from the date of
Briefly, the Emergency provisions of the its issue by the President unless in the meantime
Constitution envisage two kinds of emergencies, it has been. approved by resolutions of both the
viz. (i) a national emergency under Article 352 Houses. However, once-approved by Parliament,
due to threat of war, external aggression or the Proclamation may continue in operation for
armed rebellion and (ii) financial emergency six months at a time unless revoked by the
under Article 360. The third kind of situation, President earlier by a subsequent Proclamation.
Resolutions approving the Proclamation of
104
. AIR 1967 SC 1335 Emergency or its continuance have to be passed
178
by either House of Parliament by a majority of respect of conviction for offences and protection
the total membership and not less than two- of life and liberty in Articles 20 and 21.
thirds of those present and voting. Also, if the The effect of the exercise of powers
Lok Sabha passes a resolution disapproving the under Articles 358 and 359 is that not only the
proclamation or its continuance, it shall be legislature but also the executive can interfere
revoked forthwith. If notice of a resolution with the fundamental rights of individuals
signed by not less than one tenth of the total except those under Articles 20 and 21.
membership is given to the President/Speaker, a Any law passed under Articles 358 and
special sitting of the House shall be held within 359 in order to be valid must contain a recital to
14 days to consider it. the effect that it is in relation to the Proclamation
Article 353 read with Article 365 of Emergency in operation. Also, all such laws
provides that once Emergency is proclaimed, the shall cease to have effect to the extent of
executive power of the Union extends to giving incompetency under the Fundamental Rights as
of directions to any State in regard to the soon as the Emergency ceases or the Presidential
exercise of the executive powers of the State and order ceases to have effect.
failure to comply with the directions would There have been three proclamations of
constitute enough justification for imposition of national emergency in India-in October 1962 at
President's rule under Article 356. the time of the Chinese aggression, in December
During the operation of Emergency, the 1971 in the wake of the war with Pakistan and in
legislative power of Parliament also extends to June 1975 on grounds of internal disturbance.
conferring powers and imposing duties by law The first proclamation issued in October 1962
on Union authorities in matters not otherwise continued till January 1968. The second
included in the Union List. proclamation issued in December 1971 lasted till
Under Article 354, the application of March 1977. The their proclamation issued in
provisions relating to distribution of revenues June 1975 while the second was still in
(Articles 268 to 279) may be suitably modified operation was also revoked in March 1977 with
during the period of the operation of Emergency. the second. Since the, there has been no
Article 358 provides for the suspension of the proclamation of emergency. During the periods
provisions of Article 19 during emergencies of Emergency, extraordinary powers were
while Article 359 authorizes the President to assumed by the Union Government under
suspend by order the enforcement of all the several laws and constitutional amendments
fundamental rights guaranteed in Part III of the passed by Parliament.
Constitution except the rights of. protection in

179
 There was widespread criticism of the be taken away. Also, the same amendment laid
misuse of powers during the period of internal down that under no circumstances could the
emergency. In the general elections that enforcement of rights under Articles 20 and 21
followed, the ruling Congress (I) under the be denied even during an Emergency.
leadership of Indira Gandhi lost and a Janata Several cases involving emergency
Party Government was formed. provisions were decided by the Supreme Court
Before the 44th Constitution before the 1978 amendment. These dealt with
Amendment, state of emergency could be matters arising during periods of the first and
declared under Article 352 throughout the entire second Emergencies proclaimed in 1962 and
country only. The Amendment made it possible 1971. The Court upheld the Presidential order
to cover only a part of the country, as may be suspending the right of a citizen to move the
deemed necessary, under emergency. Also, the Court to enforce the provisions of Articles 21
provisions of Article 352 were made more and 22.105 In Makhan Singh v. State of Punjab106
stringent in 1978-79 by the Constitution (44th the Court tried to balance the fundamental rights
Amendment) Act, 1978 which came into effect of the citizens with the Emergency provisions
from 20 June 1979. To prevent the misuse of and the needs of the security of the State. While
emergency provisions, the words 'armed conceding that if national security is in peril,
rebellion' were substituted for 'internal individual rights must give way to the State, the
disturbance', a written communication of the Court said:
decision by the Union Cabinet was made an How long the Proclamation of
essential pre condition for the issue of a Emergency should continue and what
Proclamation by the President, and the entire restrictions should be imposed on the
procedure for emergency provisions was fundamental rights of citizen~ during the
streamlined to ensure dependence on approval of pendency of the emergency, are matters which
Parliament, particularly of the Lok Sabha. The must inevitably be left to the executive because
Amendment made it possible for the President to the executive knows the requirements of the
modify the proclamation without revoking it situation and the effect of compulsive factors
subject to approval of Parliament. Thus, the which operate during periods of grave crises.
Amendment confined the suspension of Article But, the Court also held that it had the
19 only to situations of war or external power to judge and examine the validity of
aggression, i.e. where emergency was emergency legislation under which persons were
proclaimed on internal grounds of ' armed
105
. Mohan Chowdhury v. Chief Commissioner, AIR
rebellion', freedoms under Article 19 could not 1964 SC 173.
106
. AIR 1964 SC 381
180
detained with mala fide intentions or under of the State during emergency, citizen's rights to
excessive delegation of powers to the executive. freedom could not be taken away without the
In another case, the Court upheld the validity of existence of justifying necessity specified in
the statute which invested the executive with Defence of India Rules. On this ground, the
drastic powers and observed that the power to Court declared a detention "clearly and plainly
detain without trial was basically an executive mala fide". 111 In PL. Lakhanpal v. Union of
act not subject to judicial review.107 In State of India 112
, the Supreme Court overruled the
108
Maharashtra v. Prabhakar Pandurang Sanzgiri , decision in the Sadhu Singh case and held that
the Court upheld the liberty of a detenu to send principles of natural justice should apply to the
his book outside the jail for publication since decision -to review an order of detention. The
there was no nexus between the Government Court went further in State of Madhya Pradesh
order preventing it and the purpose of the v. Bharat Singh113 when it said: All executive
enforcement of emergency rules. The stand was action which operates to the prejudice of any
reiterated in K. Ananda Nambiar v. Chief person must have the authority of law to support
109
Secretary where Justice Gajendragadkar it, and the terms of Article 358 do not detract
asserted that even during the operation of from that rule ... Article 358 does not purport to
emergency, in considering the effect of a invest the State with arbitrary authority to take
Presidential order suspending the enforcement of action to the prejudice of citizens and others: it
fundamental rights, the order should be strictly merely provides that so long as the proclamation
construed in favour of the citizen's fundamental of emergency subsists laws may be enacted, and
rights. In Ram Manohar Lohia v. State of Bihar executive action may be taken in pursuance of
110
, it was held that the order of detention must lawful authority, which if the provisions of
prima facie be proper, that "maintenance of law Article 19 were operative would have been
and order" could not be equated with invalid.
"maintenance of public order" and that action In Mohd. Yaqub v. State of J&K114, the
under Defence of India Rules would be valid Supreme Court clearly observed that there was
only if taken in the "interests of public order" no scope for judicial review to find out any
and not merely "in aid of law and order". While nexus between exercise of power under Article
protecting the paramount interest of the security 359 and security of India in view of the
suspension of the enforcement of fundamental
107
. Sadhu Singh v. Delhi Administration, AIR 1966
111
SC 91. . G. Sadanandan v. State of Kerala, 1966 SC 1925.
108 112
. (AIR 1966 SC 424 . AIR 1967 SC 1507
109 113
. (AIR 1966 SC 657 . AIR 1967 SC 1170
110 114
. (AIR 1966 SC 740 . (AIR 1968 SC 765
181
rights in the interests of the security of the State clearly was to keep preventive detention
by the President. In Bhut Nath v. State of W. controlled exclusively by the executive.
Bengal 115 also, the Court declined to hold the Detenues could not move any Court for the writ
continuance of emergency void. Justice Iyer said of Habeas Corpus if a prima facie valid
that the argument that there was no real detention order existed.118
emergency fell outside the orbit of judicial In Union of India v. Bhanudas119 again,
control. The position' was reiterated in Collector the Court held that all rights of personal liberty
116
of Hyderabad v. Ibrahim and Co. . The Court under Articles 19,21 and 22 could be suspended
said: The executive order immune from attack during national emergency due to Presidential
is only that order which the' State was Orders under Article 359. Most of these Court
competent, but for the provisions contained in verdicts lost validity after the 44th amendment
Article 19, to make. Executive action ... which is inter alia amended Articles 352, 358 and 359.
otherwise invalid is not immune from attack, In the Minerva Mills case, it was held
merely because a proclamation of emergency is that the judiciary could act if it was established
in operation when it is taken." that the Union Government acted mala fide or
Article 358 made it clear that things on irrelevant or no facts. The remedy otherwise
done or omitted to be done during emergency could be only political. A matter like the
could not be challenged even after the satisfaction of the President is beyond the Court.
emergency was over on the ground of the Only if it was shown that there was, in fact, no
concerned emergency law having violated satisfaction at all, or the satisfaction was absurd,
Article 19.117 perverse or mala fide, the exercise of power
There appeared to be a considerable would be unconstitutional. Courts could
shift in the approach of the Supreme Court to certainly act under their power of limited
cases of violation of Fundamental Rights vis a judicial review in such a case.120 .
vis emergency provisions arising during the II. PRESIDENT'S RULE
proclamation of internal emergency (1975- It is the constitutional duty of the Union
1977). Thus, in the Habeas Corpus case, the to protect its States against external aggression
Court refused to interfere in matters of detention and internal disturbance and to ensure that the
of persons as it believed that the intention

115
. AIR 1974 SC 806
116 118
. AIR 1970 SC 1275 . Additional District Magistrate v. Shivkant Shukla,
117
. L Makhan Singh's case, op. cit.; Bennett Coleman AIR 1976SC 1207
119
and Co. Ltd. v. Union of India, AIR 1973 SC 106; . AIR 1977 SC 1027
120
A. Cooperative Agricultural and Industrial . Minerva Mills v. Union of India, AIR 1980 SC
Society Ltd. v. Union of India, AIR 1976 SC 958. 1789
182
Government of every State is carried on in accordance with the provisions of this
accordance with the Constitution (Article 355). Constitution" but a question may be asked when
If on receipt of a Report from the can the President lawfully hold that such a
Governor or otherwise, the President is satisfied situation has actually arisen. A very specific and
that Government of the State cannot be carried categorical answer is contained in Article 365
on in accordance with the Constitution or that when it says that where a State fails to comply
the constitutional machinery has failed, he may with Union directions (under Articles 256,257
issue a proclamation taking over any of the and others) "it shall be lawful for the President
functions and powers of the State Government to hold that a situation has arisen in which the
including those of the Governor and other. State Government of the State cannot be carried on in
authorities (Article 356). The satisfaction of the accordance with the provisions of this
President, of course, means the satisfaction of Constitution". It is unfortunate that before
the Union Government and President's rule is rushing to issue a proclamation under Article
actually rule by the Union Government. It is 356, no effort appeared to have been made to
important that Article 356 is read with Articles ensure that (i) the Union had done all that it
355, 256, 257, 353 and 365. This is usually not could in discharge of its duty under Article 355
done. Insofar as Article 355 speaks of the duty and (ii) that the State had "failed to comply with,
of the Union to ensure that government of every or give effect to" directions. It seems in many
state is carried on in accordance with the cases recourse to 356 has been taken without
provisions of the Constitution, it is obvious that keeping other provisions in view.
Article 356 is not the only one to take care of a Under the proclamation under Article
situation of failure of constitutional machinery. 356, the powers of the State Legislature may
The Union can also act in matters of 'external become exercisable by or on the authority of
aggression' or 'internal disturbance' under Article Parliament. The State Assembly may be
355 i.e. without imposing President's rule. dissolved or kept under suspended animation.
Article 355 can stand on its own. Also, Union The President may take all other steps that may
Government can issue certain directions under be necessary including suspension of the
Articles 256, 257 and 353. operation of any constitutional provisions
It is true that Article 356 clearly relating to any body or authority in the State
authorizes the President to issue a proclamation except the High Courts. Every proclamation
imposing President's rule over a State if he is must cease to operate at the expiry of two
satisfied that a situation has arisen in which the months unless approved by resolutions of the
Government of the State cannot be carried on in two Houses. After Parliament's approval also, a

183
proclamation may continue for not more than six proclamation under 356 depends on the
months at a time and not for more than a total of subjective satisfaction of the President and the
three years except in case of a proclamation Court could not substitute its own satisfaction
issued in May 1987 in respect of Punjab which for that of the President nor could it, in view of
was allowed to continue for five years under the Article 74(2), enquire into the advice given to
Constitution (68th Amendment) Act, 1991 the President by the Council of Ministers. The
(Article 356). Court, however, significantly added that if the
During the operation of President's rule satisfaction of the President was mala fide,
under Article 356, Parliament may confer the based on extraneous or irrelevant considerations
legislative power of the State on the President or no satisfaction at all, it could interfere. Thus,
and authorize him to delegate these powers to exercise of President's power under Article 356
other authorities (Article 357). was brought under judicial review to that extent.
Article 356, enabling the imposition of In the Bommai ease, the Court went
President's rule over the States by the Union, has much further. It was held (i) that the question of
been one of the most criticized and controversial the State Government losing the confidence of
provisions of the Constitution. Under this the House should be decided on the floor of the
provision, State Governments have been taken House and until that is done the Ministry should
over by the Union on nearly 120 occasions not be unseated, (ii) that dissolution of the
during the last 60 years (1950-2009) i.e. on an Assembly by Presidential Proclamation is
average twice each year. Opposition members subject to judicial review, and (iii) that if the
and critics have said that the Article has been court finds that relevant material justifying the
used, more often than not, for political and proclamation did not exist or that mala fide was
partisan purposes by the party in power at the involved, it may strike it down and restore the
Union level, usually to dismiss State Ministry S. R. Bommai v. Union of India122.
Governments of parties in opposition. In the The Constitution Commission (NCRWC) has
Constituent Assembly, while replying to the recommended:
critics of this provision, Dr. Ambedkar had (1) Article 356 should not be deleted. But it
expressed the hope that it might remain a dead must be used sparingly and only as a remedy
letter and might never be used except as a last of the last resort and after exhausting action
resort, after everything else failed. under other Articles like 256, 257 and 355,
In State of Rajasthan v. Union of (2) In case of political breakdown, necessitating
121
India , the Supreme Court held that a invoking of Article 356, before issuing a

121 122
. AIR 1977 SC 1361 . JT (1994) 2 SC 215
184
 proclamation there under, the concerned III. FINANCIAL EMERGENCY
State should be given an opportunity to The President is authorized by Article
explain its position and redress the situation, 360 of the Constitution to declare by a
unless the situation is such, that following proclamation financial emergency if he is
the above course would not be in the interest satisfied that the financial stability or credit of
of security of State, or defence of the India or of any part of its territory is threatened.
country, or for other reasons necessitating Such a proclamation may be revoked-or varied
urgent action. by a subsequent proclamation. It has to be laid
(3) The question whether the Ministry in a State before both Houses of Parliament and ceases to
has lost the confidence of the Legislative operate at the expiration of two months unless
Assembly or not, should be decided only on meanwhile approved by resolutions of the two
the floor of the Assembly and nowhere else. Houses. Once approved by Parliament, unlike
If necessary, the Union Government should proclamations under Article 352, it may
take the required steps, to enable the continue indefinitely until revoked or varied ..
Legislative Assembly to meet and freely During the operation of financial
transact its business. The Governor should emergency, the executive authority of the Union
not be allowed to dismiss the Ministry so extends to the giving of directions to any State to
long as it enjoys the confidence of the observe certain specified canons of financial
House. It is only where a Chief Minister propriety and such other directions that the
refuses to resign after his Ministry is President may find necessary or adequate. These
defeated on a motion of no-confidence, that directions may include reduction of salaries and
the Governor can dismiss the State allowances of all those serving a State and
Government. In a situation of political reserving for the President's consideration all
breakdown, the Governor should explore all money Bills and other Bills under Article 207
possibilities of having a Government after these are passed by State Legislatures. The
enjoying majority support in the Assembly. President may also direct reduction in salaries
(4) Article 356 should be amended so as to and allowances of all those serving in
ensure that the State Legislative Assembly connection with the affairs of the Union
should not be dissolved either by the including judges of the Supreme Court and the
Governor or the President before the High Courts. Fortunately, thus far, during the
proclamation issued under Article 356(1) last 60 years of the operation of the Constitution,
has been laid before Parliament and it has the has been no occasion for the promulgation of
had an opportunity to consider it. Financial Emergency.

185
 MODULE - 10
COMMISSIONS AND COMMITTEES ON UNION-STATE RELATIONS -
OBJECTIVES AND RECOMMENDATIONS

An attempt is made in this Module to 3) Augmenting financial resources of the states

touch upon the recommendations of some through fiscal transfers from the centre.
important commissions which were appointed 4) Appointment of non-partisan persons having
with a direction to suggest changes in the long experience in public life and
provisions of the constitution relating to union- administration as Governor of a state
state relations. Their terms of reference were to Other Recommendations
examine the entire question regarding the • It made the strong suggestion that Article
relationship that should exist between the two 370 was not a transitory provision. This
governments in a federal set up and to suggest appears to have been made specifically in
amendments to the constitution so as to secure response to “one all-India political party”
utmost autonomy to the states. that demanded the deletion of Article 370
1. The administrative reforms “in the interests of national integration.
Commission (1969) • It recommended that the residuary powers of
The Administrative Reforms legislation in regard to taxation matters
Commission set up under the Chairmanship of should remain exclusively in the
Sri. K. Hanumanthayya and this Commission • competence of Parliament while the
submitted its report in 1969. It made 22 residuary held other than that of taxation
recommendations to improve Centre State should be placed on the concurrent list.
relations. It ruled out any constitutional • That the enforcement of Union laws,
amendment and considered the existing particularly those relating to the concurrent
provisions as sufficient to regulate federal sphere, is secured through the machinery of
tensions. The important recommendations are the states.
given out of 22 recommendations in the • To ensure uniformity on the basic issues of
following: national policy, with respect to the subject of
1) Establishment of an Inter-state council under a proposed legislation, consultations may be
Article 263 of the constitution carried out with the state governments
2) Delegation of powers to the maximum individually and collectively at the forum of
extent to the states the proposed Inter-Governmental Council. It

186
 was not recommended that the consultation • Differences between the Union and the
be a constitutional obligation. States should be resolved by mutual
• Ordinarily, the Union should occupy only consultation.
that much field of a concurrent subject on • It has taken a favourable view on the
which uniformity of policy and action is demand of the States to provide more
essential in the larger interest of the nation, financial resources at their disposal.
leaving the rest and details for state action. • In order to improve Centre-State relations in
• On administrative relations, Sarkaria made the country, it has suggested economic
some observation: “Federalism is more a liberalization and suitable amendments to
functional arrangement for cooperative the Constitution.
action, than a static institutional concept. 2. Rajamannar Commission, 1969
• Article 258 (power of the Union to confer In 1969, the Tamil Nadu government
powers etc on states in certain cases) appointed Rajmannar Commission to look into
provides a tool by the liberal use of which this aspect and it submitted its report in 1971. It
cooperative federalism can be substantially demanded readjustment of the VII schedule and
realized in the working of the system. residuary power to the states. Its other important
• A more generous use of this tool should be recommendations are given in the following:
made than has hitherto been done, for • Setting of an Inter-State council
progressive decentralization of powers to the immediately
governments of the states. • Finance commission to be made a
• The Commission strongly recommended the permanent body
establishment of permanent Inter-State • Deletion of Articles 356, 357 and 365 which
Council. dealt with the President’s rule
• In addition, it desired that both the Centre • Abolition of All-India Services (lAS, IPS
and the States should have the concern for and IFS)
the development of backward territory or • Planning Commission to be replaced by a
areas. statutory body
• If the economic development of these • The Central government completely ignored
backward regions are undertaken in a its recommendations.
planned manner, the separatist tendencies Criticisms against P.V. Rajamannar
will be automatically controlled. Commission
Many critics criticized the Rajamannar
Committee Report.

187
• M. C. Setalvad, the noted Jurist, The Commission also recommended
emphatically criticized the recommendations delegation of more financial and administrative
by the P.V. Rajamannar Committee. He functions and powers to the states. This,
argued that the country has several according to the Commission would introduce
destructive and divisive forces raising their more efficiency and economy in administration
ugly heads now and then in the form of and would create an atmosphere for better and
linguism, communalism, casteism and other smoother relations between the two
narrow loyalties, such far-reaching changes governments.
would prove highly disastrous in the process 3. Sarkaria Commission, 1983
of nation-building and national solidarity.’’ The agitation for State autonomy led to
• Several articulated sections in India the creation of Sarkaria Commission by the
including certain interest groups have also Central Government to recommend changes in
opposed the recommendations. Centre-State relationship. The Commission
It is also interesting to note that even submitted its report in 1988. The founding
some of regional parties like Akali Dal and fathers of the Indian Constitution were deeply
National Conference had expressed their concerned about ensuring the unity and integrity
disagreement with the recommendations. of the country. They were aware of the forces of
The Union government also rejected disruption and disunity working within the
outright the recommendations made by P.V. country. These dangers at the time of
Rajamannar Committee. Further, the centre was independence could be handled only by a strong
not bound to accept these recommendations as government at the Centre. Therefore, the framers
the committee was appointed by a state of the Constitution assigned a predominant role
government. to the Centre. At the same time they made
A careful observation of P.V. provisions for the establishment of a co-
Rajamannar Committee and the Administrative operative federalism.
Reforms Committee reveals that the P.V. The working of the Indian federation
Rajamannar Committee pleaded for the during the last five decades clearly shows that
protection and consolidation of the identity, the the relations between the Centre and the States
territorial integrity and independence of the state have not always been cordial. The administrative
governments. As against this, the Administrative Reforms Commission and several other
Reforms Commission sought the extension of Commissions were appointed by the
state’s autonomy but emphasized the unity of Government of India from time to time to
India was a paramount importance. regulate Centre State relations. The Union

188
Government appointed Sarkaria Commission to legislative matters, role of Governors and use of
suggest ways and means to improve Centre- Article 356.
State relations. The claim for more autonomy Role of Governor and Issue of Appointment
led to the constitution of Sarkaria Commission of Governor
in 1983 which was asked to examine and review On the issue of appointment of the
existing arrangements between the Centres and Governors, it made some important
the States in all spheres and recommend recommendations as given in the following:
appropriate changes and measures. • The Governor should be eminent in some
An extraordinary situation, the need to walk of life and from outside the state. He
defeat the emergency regime of Indira Gandhi, should be a detached figure without intense
brought them together. With the return of the political links or should not have taken part
Congress party under Indira Gandhi’s leadership in politics in recent past.
with secure majority, the movements for state • Besides, he should not be a member of the
autonomy slowly receded in the background. At ruling party.
the present moment, there is no movement for • He should be appointed after effective
state autonomy like earlier even though the consultations with the state Chief Minister
struggle to get more financial resources for the and Vice President and Speaker of the Lok
state continues. In 1990 a visible change came in Sabha should be consulted by the PM before
the correlation of forces active in the Indian his selection.
politics. • As far as possible, the governor should
Major Recommendations of Sarkaria enjoy the term of five years.
Commission • He should be removed before his tenure
The Sarkaria Commission finally only on the grounds as mentioned in the
submitted its report in the year 1988. The constitution or if aspersions are cast on his
Sarkaria Commission’s charter was to examine morality, dignity,
the relationship and balance of power between • In the process of removal, state government
state and central governments in the country and may be informed and consulted
suggest changes within the framework of Regarding use of Article 356
Constitution of India. In spite of the large size of The Sarkaria Commission made the
its reports – the Commission recommended, by following recommendations:
and large, status quo in the Centre-State • This Article should be used very sparingly
relations, especially in the areas, relating to and as a matter of last resort. It can be
invoked only in the event of political crisis,

189
 internal subversion, physical breakdown and 1. Ordinarily, the Union should occupy only
non-compliance with the constitutional that much field of a concurrent subject on
directives of the centre. which uniformity of Policy and Action is
• Before that, a warning should be issued to required in the larger interest of the Nation,
the errant state in specific terms and leaving the rest of the details for State
alternate course of action must be explored action, within the abroad frame-work of the
before invoking it. Policy laid down in the Union Law.
• The material fact and grounds on the basis 2. Whenever, the Union proposes to undertake
of which this Article is invoked should be Legislation on a subject belonging to the
made an integral part of the Proclamation; it Concurrent List, the States’ views must be
will ensure effective Parliamentary control ascertained through inter-Governmental
over the invocation of the President Rule. Councils.
• The Governor’s report must be a ‘speaking 3. Parliamentary law passed under Article 252
document’ and it should be given wide (1), on request of two or more States should
publicity. So the Sarkaria Commission was not be perpetual but should be for specific
an important attempt to streamline the period not exceeding three years.
centre-state relations. It has become a 4. On receipt of a resolution from a State
reference point for any discussion on centre- recommending creation or abolition of a
state relations and it has been frequently Legislative Council, the same will be
referred to even by the judiciary. presented before the Parliament within a
• On its recommendation, the Inter-State reasonable time.
council was established in 1990 and it has 4. Punchi Commission 2007
considered its recommendations. The Central government constituted the
• However, many of its important Punchi Commission in 2007 to examine centre-
recommendations have not been state relations along with the possibility of
implemented and tensions in federal giving sweeping powers to the centre for suo
relations are a recurrent feature. motu deployment of Central forces in states and
Relating to Legislative Matters investigation of crimes affecting national
While it made the general observation security. It was chaired by the former Chief
that the Constitution is basically sound and there Justice of India M.M. Punchi. It submitted its
is no need for drastic changes in the basic recommendation in 2009. Some of its important
character of the Constitution, nevertheless it recommendations are given in the following:
gave following recommendations:

190
1. It called for giving a fixed term of five years c. The post-electoral coalition with all
to the governors and their removal by the parties joining the government; and last
process of impeachment (similar to that of d. The post electoral alliance with some
the President) by the State Legislature. parties joining the government and
2. The governor should have the right to remaining including Independents
sanction prosecution of a minister against supporting from outside.
the advice of the council of ministers. 6. The panel also feels that governors should
3. It called for an amendment of Articles 355 have the right to sanction prosecution of a
and 356 to enable centre to bring special minister against the advice of the council of
trouble-torn areas under its rule for a limited ministers. However, it wants the convention
period. Hence, it proposed ‘localizing of making them chancellors of universities
emergency provisions’ under which either a done away with.
district or parts of a district can be brought 7. As for qualifications for a governor, the
under the central rule instead of the whole Punchhi commission suggests that the
state. Such an emergency should not be for nominee not have participated in active
more than 3 months. politics at even local level for at least a
4. It proposed that Centre should have power couple of years before his appointment. It
to deploy its forces in case of communal also agrees with the Sarkaria
conflagration without state’s consent for a recommendation that a governor be an
short period of a week. eminent person and not belongs to the state
5. Among the significant suggestions made by where he is to be posted.
the Commission is, lying down of clear 8. The commission also criticizes arbitrary
guidelines for the appointment of chief dismissal of governors, saying, "the practice
ministers. Upholding the view that a pre-poll of treating governors as political football
alliance should be treated as one political must stop".
party, it lays down the order of precedence 9. There should be critical changes in the role
that ought to be followed by the governor in of the governor - including fixed five-year
case of a hung house: tenure as well as their removal only through
a. Call the group with the largest pre-poll impeachment by the state Assembly. It has
alliance commanding the largest number; also recommended that the state chief
b. The single largest party with support of minister have a say in the appointment of
others; governor.

191
10. Underlining that removal of a governor be communal incident, it has said that a
for a reason related to his discharge of delegation of five members of the Council,
functions, it has proposed provisions for who would be eminent persons, should visit
impeachment by the state legislature along the affected area within two days National
the same lines as that of President by debate and submit a fact-finding report.
Parliament. This, significantly, goes against 15. The commission, however, rejects a
the doctrine of pleasure upheld by the recent suggestion from some stakeholders as well
Supreme Court judgment. as the Liberhan Commission that the NIC be
11. Endorsing an NCRWC recommendation, it accorded constitutional status.
says appointment of governor should be 16. The commission has also studied new set-
entrusted to a committee comprising the ups like the National Investigation Agency,
Prime Minister, Home Minister, Speaker of and recommended procedures to ensure
the Lok Sabha and chief minister of the smooth co-operation of the states in terror
concerned state. The Vice-President can also investigations entrusted to NIA. One can say
be involved in the process. that the extreme politicization of the post of
12. Unlike the Sarkaria report, the Punchhi Governor must be decried and certain
report is categorical that a governor be given specific norms for the appointment and
fixed five-year tenure. The Punchhi removal have to be evolved.
Commission report also recommends that a 17. The recent ruling of the Supreme Court has
constitutional amendment be brought about indicated that the sanctity of this
to limit the scope of discretionary powers of constitutional post should be preserved. In
the governor under Article 163 (2). democracy, nobody can have absolute power
Governors should not sit on decisions and in the name of smooth administration and
must decide matters within a four-month good governance. The administrative
period. apparatus has to be in the line of the
13. The creation of an overriding structure to constitution, which was prepared by the
maintain internal security along the lines of people of the country and amended by the
the US Homeland Security department, elected representative of the people of India.
giving more teeth to the National Integration The 'doctrine of pleasure’ has to be
Council. understood in this light.
14. For the National Integration Council (NIC), Thus, the issue of state autonomy has
the commission has proposed that it should been a major issue in the dynamics of Indian
meet at least once a year. In case of any federalism.

192
 REFERENCE MATERIAL

1. D.D. Basu: Constitutional Law of India, LexisNexis, New Delhi 2013.

2. Subhash C. Kashyap: Our Constitution – an Introduction to India’s Constitution and

Constitutional Law 5th Edt. National Book Trust, New Delhi, 2014

3. M. P. Jain: Indian Constitutional Law, LexisNexis New Delhi 2015.

4. Dr. J. N. Pandey: An Introduction to Constitution of India, Central Law Agency, Allahabad,

2016

5. https://archive.org/details/Dr.BabasahebAmbedkarWritingsAndSpeechespdfsAllVolumes/pag
e/n53/mode/2up

6. GST - http://gstcouncil.gov.in/

193