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Preface

Respected reader,

Polity & Governance forms the heart of UPSC preparation and provides a bedrock on which the entire

governance structure of our country is based. From the perspective of UPSC exam, this section has

crucial weightage, both in the prelims and mains exam.

We have developed this material for our students of foundation classes. This book covers both Prelims

and Mains part of syllabus of Polity Governance and includes topics like basics of Constitution,

Preamble, Fundamental Rights & DPSP, Union Executive and Federalism. Other topics such as Judiciary,

State Administration, Constitutional & Non-Constitutional bodies along with Governance will be

covered in the second part of this book.

Hope you will appreciate our efforts.

Regards,

Rau’s IAS Study Circle

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CONTENTS
CHAPTER-1 CHAPTER-4
PHILOSOPHICAL PREAMBLE
UNDERSTANDING OF 35
CONSTITUTION 1. PREAMBLE AND ITS PURPOSE 35

01
1. CONSTITUTION AND ITS PURPOSE 01
CHAPTER-5
2. UNDERSTANDING THE CONSTITUTION 03

3. UNDERSTANDING CONSTITUTIONALISM 06
UNION AND ITS
4. CONSTITUTIONALISM VS. CONSTITUTIONAL
TERRITORY
MORALITY 07
42
5. CONSTITUTIONAL MORALITY OVER PUBLIC 1. CONSTITUTIONAL PROVISIONS 42
MORALITY 09
2. REORGANISATION OF STATES 45

CHAPTER-2
MAKING OF THE CHAPTER-6
CONSTITUTION CITIZENSHIP
11 49
1. CONCEPTS OF CITIZENSHIP 49
1. OBJECTIVE RESOLUTION 12
2. OVERSEAS CITIZEN OF INDIA, PERSON OF INDIAN
2. INDIAN CONSTITUTION IS 75% OF GOI ACT 1935 13
ORIGIN AND CITIZENSHIP (AMENDMENT) ACT 55
3. SOURCES OF INDIAN CONSTITUTION 14
3. PERSON OF INDIAN ORIGIN (PIO) 56

4. CITIZENSHIP (AMENDMENT) ACT 2019 56

CHAPTER-3 5. NATIONAL PEOPLE REGISTER, NATIONAL

POPULATION REGISTER AND CENSUS 58
COMPARISON OF THE
CONSTITUTION
PHILOSOPHICAL AND CHAPTER-7
STRUCTURAL UNDERSTANDING
FUNDAMENTAL RIGHTS
18
61
1. FEATURES OF CONSTITUTION 18
FUNDAMENTAL RIGHTS AND ITS FEATURES 61
2. COMPARISON OF CONSTITUTION 27
1. NATURAL, HUMAN, LEGAL & MORAL RIGHTS 61
3. UNITED KINGDOM 28
2. ARTICLE 12 64
4. CONSTITUTION OF USA 31
3. ARTICLE 13 65
5. FRANCE 33
4. ARTICLE 14 67

5. ARTICLE 15 72

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6. ARTICLE 16 75
CHAPTER-10
7. ARTICLE 17 81
EMERGENCY
8. ARTICLE 18 81
PROVISION
9. ARTICLE 19 82

10. ARTICLE 20 94
142
1. EMERGENCY PROVISIONS 142
11. ARTICLE 21 97
2. NATIONAL EMERGENCY (ARTICLE 352) 143
12. ARTICLE 21A 104
3. PRESIDENT RULE (ARTICLE 356) 146
13. ARTICLE 22 105
4. FINANCIAL EMERGENCY (ARTICLE 360) 149
14. ARTICLE 23 108

15. ARTICLE 24 109

16. ARTICLE 25-28 110 CHAPTER-11

17. ARTICLE 29 & 30 115 UNION EXECUTIVE
18. ARTICLE 32-35 121 (PRESIDENT)
150
CHAPTER-8 1. ELECTION OF PRESIDENT 150

2. EXECUTIVE POWER OF PRESIDENT 158

DIRECTIVE PRINCIPLES
OF STATE POLICY 3. LEGISLATIVE POWER OF THE PRESIDENT 159

127
1. DIRECTIVE PRINCIPLES OF STATE POLICY 127 CHAPTER-12
2. CLASSIFICATION OF DPSP (DIRECTIVE PRINCIPLES UNION EXECUTIVE
OF STATE POLICY) 128 (VICE PRESIDENT)
3. AMENDMENTS IN DPSP (DIRECTIVE PRINCIPLES OF
STATE POLICY) 134
165
1. CONSTITUTIONAL PROVISIONS OF VICE PRESIDENT
4. CONFLICTS BETWEEN FUNDAMENTAL RIGHTS &
OF INDIA 165
DPSP: ASSOCIATED CASES 134
2. AMERICAN VICE PRESIDENT 167
5. IMPLEMENTATION OF DPSP: ASSOCIATED ACTS &
AMENDMENTS 135

6. CRITICISM OF DPSP (DIRECTIVE PRINCIPLES OF CHAPTER-13

STATE POLICY) 136
UNION EXECUTIVE
7. NCRWC RECOMMENDATIONS 136 (CENTRAL COUNCIL OF
MINISTER)

CHAPTER-9 168
1. THE PRIME MINISTER OF INDIA 168
FUNDAMENTAL DUTIES
2. CENTRAL COUNCIL OF MINISTERS 169
137 3. CABINET 172
1. FUNDAMENTAL DUTIES 137

2. LIST OF FUNDAMENTAL DUTIES 138

3. RELATIONSHIP BETWEEN FUNDAMENTAL RIGHTS,

DIRECTIVE PRINCIPLES & FUNDAMENTAL DUTIES 139

4. CRITICISM OF FUNDAMENTAL DUTIES 140

ii

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3. ADVOCATE GENERAL OF STATE 234

CHAPTER-14
UNION EXECUTIVE
(ATTORNEY GENERAL OF CHAPTER-17
INDIA)
STATE LEGISLATURE
175 235
1. ATTORNEY GENERAL OF INDIA 175
1. STATE LEGISLATURE 235
2. SOLICITOR GENERAL OF INDIA 176
2. SESSION OF STATE LEGISLATURE 238
3. ADVOCATE GENERAL OF INDIA 177
3. LEGISLATIVE PROCEDURE OF STATE 240

CHAPTER-15 CHAPTER-18
PARLIAMENT FEDERALISM
178 243
1. PARLIAMENT 178
1. LEGISLATIVE RELATIONS 243
2. RAJYA SABHA 180
2. ADMINISTRATIVE RELATIONS 249
3. LOK SABHA 183
3. WATER DISPUTE 252
4. ANTI-DEFECTION 188
4. FINANCIAL RELATIONS 256
5. OFFICER OF LOK SABHA 194

6. SESSION OF PARLIAMENT: (ARTICLE 85, 86 AND 87)

200 CHAPTER-19
7. LEGISLATIVE PROCEDURE 207 ASYMMETRIC
8. PARLIAMENTARY PRIVILEGES 216 FEDERALISM
9. ANALYSIS OF WORKING OF PARLIAMENT 218
263
10. PARLIAMENTARY COMMITTEE 219
1. UNION TERRITORY 263

2. JAMMU KASHMIR AS UNION TERRITORY 270

CHAPTER-16 3. 5TH AND 6TH SCHEDULE 270

THE GOVERNOR 4. FIFTH SCHEDULE 272

5. SIXTH SCHEDULE 274

227
1. THE GOVERNOR 227

2. COUNCIL OF MINISTERS 231

iii

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PHILOSOPHICAL
1
UNDERSTANDING OF
Chapter CONSTITUTION
TOPICS TO BE COVERED
1. Constitution and its purpose
2. Understanding the Constitution
3. Understanding Constitutionalism
4. Constitutionalism Vs. Constitutional Morality
5. Constitutional Morality over Public Morality

1. CONSTITUTION AND ITS PURPOSE

A constitution is a set of fundamental rules that determine how a country or state
is run. Almost all constitutions are “codified”, which simply means they are written
down clearly in a specific document called “constitution”.
However, some countries, such as Israel, New Zealand, and United Kingdom, have “un-
codified” constitutions which can’t be found written down neatly in one document.
Constitutions usually include the following basic elements

1. As constitutions include the most fundamental rules governing a society, it is

generally more difficult for them to be amended than it is to pass ordinary pieces
of legislation. For example, in US, passing constitutional amendments requires a two-
thirds majority of both houses of congress before being approved by three-quarters
of the states. Alternatively, a constitutional convention can be called by two-thirds of
US states which can propose amendments that will then need to be approved by
three-quarters of the states. Both processes are much more difficult to complete than
simply passing legislation through a majority of both houses of congress, reflecting
the fundamental importance of rules set out in the constitution.
2. In contrast, United Kingdom’s “un-codified” constitution vests ultimate authority in
parliament to “make or unmake any law” (Dicey), under the principle of
“parliamentary sovereignty”. Since there is no written constitution of United Kingdom,

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PHILOSOPHICAL UNDERSTANDING OF CONSTITUTION

any law passed by parliament has the potential to be of constitutional significance,

meaning the authority for altering the UK constitution ultimately lies with parliament.

Parliamentary sovereignty means that parliament is superior to the executive and

judicial branch of the government and can therefore enact or repeal any law it
chooses. It is a cornerstone of the UK constitutional system and applies in some parts
of the Commonwealth such as Canada. The idea of parliamentary sovereignty is neatly
summed up by 19th century constitutional theorist A V Dicey: “Parliament…has, under
the English constitution, the right to make or unmake any law whatsoever; and,
further, … no person or body is recognised by the law of England as having the right
to override or set aside the legislation of Parliament. ” The notion of parliamentary
sovereignty was at the heart of the Brexit referendum in 2016. Those wishing to leave
European Union saw its institutions, such as European Parliament, as directly
challenging the sovereignty of Westminster Parliament because European laws can be
automatically binding and override local laws within the UK. On the other hand, it was
Westminster Parliament which accepted some limits on its own sovereignty when it
decided to join European Union (then known as European Economic Community) in
1972 when it passed European Communities Act.

PURPOSE OF THE CONSTITUTION

 To provide a set of basic rules that allow for minimal coordination amongst the
members of a society.
 To specify who has the power to make decisions in a society.
 Set limits on what the government can impose on its citizens.
 Enable the government to fulfil the aspirations of a society and create conditions for
a just society.

OTHER ASPECTS OF CONSTITUTION

 Constitutions can declare and define the boundaries of the political community.
These boundaries can be territorial (geographical borders of a state, as well as its
claims to any other territory or extraterritorial rights)
 Constitutions can declare and define the nature and authority of political
community. They often declare state’s fundamental principles and assumptions, as
well as where its sovereignty lies. For example, French Constitution declares that
‘France is an indivisible, secular, democratic and social Republic’ and that ‘National
sovereignty belongs to the people. Likewise, Indian constitution is based on popular
sovereignty. (Principle of popular sovereignty denotes that the source of
governmental power or sovereignty lies with the people.)
 Constitutions can express the identity and values of a national community. As nation
building instruments, Constitutions may define the national flag, anthem and other
symbols, and may make proclamations about the values, history and identity of the
nation. Ex. National flag, Anthem etc.
 Constitutions can declare and define the rights and duties of citizens.
 Constitutions can establish and regulate the political institutions of community—
defining the various institutions of government; prescribing their composition, powers
and functions; and regulating the relations between them.
 Constitutions can divide or share power between different layers of government
or sub-state communities. Many constitutions establish federal, quasi-federal or
decentralized processes for the sharing of power between provinces, regions or other
sub-state communities. These may be geographically defined (as in most federations,
such as Argentina, Canada or India), or they may be defined by cultural or linguistic

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PHILOSOPHICAL UNDERSTANDING OF CONSTITUTION

communities (Ex. 1994 Constitution of Belgium, which establishes autonomous

linguistic communities in addition to geographical regions).

2. UNDERSTANDING THE CONSTITUTION

CONSTITUTION AS INTERACTION OF LEGAL, POLITICAL SYSTEM AND
SOCIETY
1. Constitutions as legal instruments: A constitution ‘marries power with justice’. It
makes operation of power procedurally predictable, upholds the rule of law, and
places limits on arbitrariness of power. It is the supreme law of land, and it provides
standards that ordinary statutes must comply with.
2. Constitutions as social declarations: Constitutions often attempt, to varying
degrees, to reflect and shape society—for example, by expressing the common
identity and aspirations of people, or by proclaiming shared values and ideals. These
provisions are generally found in preambles and opening declarations but can also be
found in oaths and mottos or on flags and other symbols that are defined by
Constitution. Other substantive provisions of constitution, particularly those defining
socio-economic rights, cultural or linguistic policy, or education, might also belong to
this category. Ex. Article 14 - right to equality, Article 15- prohibition of discrimination,
etc
3. Constitutions as political instruments: Constitution prescribes a country’s decision-
making institutions: constitutions ‘identify the supreme power’, ‘distribute power
in a way that leads to effective decision making’ and ‘provide a framework for
continuing political struggle’. Political provisions show how state institutions
(Parliament, Executive, Courts, Head of state, local authorities, independent bodies,
etc.) are constituted, what powers they have and how they relate to one another. Ex.
Article 324 - Election Commission of India, Article 315- Union Public Service
Commission.

Constitutions balance and reconcile these legal, political and social functions in
different ways. Two broad constitutional archetypes can be identified:
Procedural & Prescriptive:
 Procedural: Defines the legal and political structures of public institutions and sets
out legal limits of government power in order to protect democratic processes and
fundamental human rights.
1. A procedural constitution may be appropriate in cases where it is difficult to arrive
at a common agreement over issues of values or identity, but where it is possible

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PHILOSOPHICAL UNDERSTANDING OF CONSTITUTION

to reach a more limited and pragmatic consensus on using democratic procedures

to resolve these differences. Ex: Canadian Constitution.
2. They make little or no explicit mention of nation-building or of fundamental
philosophical or ideological principles. They contain few substantive provisions
(provisions settling particular policy issues) except where such provisions reflect
pragmatic attempts to settle practical problems of co-operation in a pluralist
society (e.g., language rights and ownership of resources in Canada, education in
the Netherlands). Ex. Article 3- formation and alteration of boundaries of state.
 Prescriptive: It provides a collective vision of what might be considered a good society
based on common values and aspirations of a homogeneous community. In addition
to describing how government functions, constitution assumes (or attempts to
impose) a broad consensus on common societal goals that public authorities must
strive to achieve. This is reflected in the emphasis placed on constitution’s social
content and in the ideological shape of its legal and political content.
1. A prescriptive constitution may be appropriate in cases where a society wishes to re-
establish itself on a shared ethical basis that is both symbolically proclaimed by, and
practically embedded in, its supreme law. South Africa (1996) and Ecuador (2008)
provide examples of prescriptive constitutions.
It should be remembered that these archetypes are not firm categorizations.
Most constitutions contain, to varying degrees, both features.
According to South African Justice Albie Sachs, constitutions can be regarded as
‘autobiographies of nations. Even a relatively thin procedural constitution will say
something about how a society sees itself and about who is included in and who is
excluded from the nation’s self-narrative.
Indian Constitution is Prescriptive: It is committed to freedom (Article 19), equality
(Article 14), social justice, and some form of national unity. But underneath all this,
there is a clear emphasis on peaceful and democratic measures for putting this
philosophy into practice.
Individual Freedom:
1. Philosophy: A simple answer to the meaning of Freedom is the absence of
constraints. However, it is only one dimension of Freedom. Freedom is also about
expanding the ability of people to express themselves and develop their potential.
According to Amartya Sen, a free society is one which enables all individuals to
develop their potential with the minimum of social constraints. Then it becomes
necessary to understand which social constraints are justified and which are not. Ex:
Caste system is a kind of social constraint which can’t be justified, and any kind of
constraint can be justified based on Harm Principle i.e., harm caused must be
serious.
2. Indian Context: Freedom of expression is integral to Indian Constitution as
mentioned in Part III of Indian Constitution.

SOCIAL JUSTICE
Philosophy: Social justice means the rights of all people in our community are
considered in a fair and equitable manner. Social justice specifically targets the
marginalized and disadvantaged groups in our society such as Scheduled Tribes,
Scheduled Castes, children, people from culturally and linguistically diverse
backgrounds, people with disabilities, older people, women. There are four interrelated
principles of social justice: equity, access, participation and rights.

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PHILOSOPHICAL UNDERSTANDING OF CONSTITUTION

INDIAN CONTEXT
1. Liberalism of Indian Constitution differs from the idea of classical liberalism in a way
that it is always linked to social justice. Classical liberalism ensures equality while Indian
liberalism ensures equity where special provisions are provided for weaker sections. Ex:
Reservations for Scheduled Caste and Scheduled Tribe. (Article 16, Article 334)
We can extract five basic principles, from Ambedkar, through which justice can be
dispensed in the society. These are: 1. Establishing a society where individuals become
the means of all social purposes 2. Establishment of society based on equality, liberty
and fraternity 3. Establishing democracy- political, economic and social. 4. Establishing
democracy through constitutional measures and 5. Establishing democracy by breaking
monopoly of upper strata on political power

Three schools of secularism in India:

1. Gandhian: Article 25-28
2. Nehruvian: Article 15
3. Ambedkarite: Article 29 and 30
Differences in Indian secularism:

Western model of secularism Indian model of secularism

Mutual exclusion of state and Principled distance of state from religion, i.e.,
religion, i.e., non-interference in state can interfere or engage with religion.
affairs of each other.

Embodies a negative concept of Embodies a positive concept of secularism, i.e.,

secularism, i.e., strict separation equal respect to all religions or equal protection
of all religions (Sarvadharma Sam Bhava)
between religion & state.

No state support to any A state can aid educational institutions run by

educational institution run by minorities.
religious minorities.

No engagement with religion State-supported religious reform is possible.

whatsoever. For e.g.: Abolition of untouchability, allowing
inter-caste marriages, ban on triple talaq etc.

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No public policy can solely be Government frequently frames policies having a

based on religion, as religion is religious basis, like the constitution of waqf
completely a private matter. boards etc.

CRITICISM OF INDIAN SECULARISM

1. Indian secularism is criticized for being Anti-religious, but that is not true as Indian
secularism is not against religion but against institutionalised religious domination.
2. Indian secularism promotes Minoritism, but it only advocates minority rights as long
as those rights protect their fundamental interests.
3. Indian secularism is accused of being Interventionist, which means that secularism
is coercive, and it interferes excessively with religious freedom of communities. But
this is misread because Indian secularism permits state-supported religious reforms.
4. Indian Secularism criticized as an impossible project by other nations, but India
claims this false. In fact, migration is increasing due to globalization, and it is creating
a situation where the Indian model is very much desired. Europe, America, and some
parts of Middle East are beginning to resemble India in the diversity of cultures and
religions which are present in their societies.

3. UNDERSTANDING CONSTITUTIONALISM
Despite the proliferation of nominally democratic constitutions, only a minority
of states have so far succeeded in maintaining a lasting democratic
constitutional order. Constitutions ensure that government does not own the
state: it simply manages the state, under the authority of higher laws, on behalf
of citizens. Thus, the idea of Constitutionalism comes into play.
Constitutionalism and India: As constitutionalism is a political spirit or philosophy, it
is not necessary that the states having a constitution must be embodied with the
concept of constitutionalism. According to Douglas Greenberg, Constitutionalism is a
commitment to limitations on ordinary political power, it revolves around a political
process, one that overlaps with democracy in seeking to balance state power, individual
and collective rights, it draws on particular cultural and historical contexts from which
it emanates, and resides in public consciousness.
Positive constitutionalism: It challenges the understanding of seeing
Constitutionalism entirely in terms of limits upon State (Negative Constitutionalism).
Positive aspect of Constitutionalism requires the State to be seen in the light of a
“Welfare State”. Positive version of Constitutionalism requires creation of effective &
competent state institutions to ensure the well-being of its citizens. According to Prof.
M.P. Singh, if a constitution ignores accommodation and respect for diversity and
plurality in a society then it fails to meet the requirement of constitutionalism.
A written Constitution is no guarantee for Constitutionalism. Even Nazi Germany
had a constitution but that does not mean that it adhered to the philosophy of
Constitutionalism be it a negative or positive aspect of it.
1. SR Chaudhari vs Punjab: “Mere existence of a constitution, by itself, does not
ensure constitutionalism. What is important is the political traditions of the people
and its spirit and determination to work out its constitutional salvation through the
chosen system of its political organisation.”
2. Unless primacy to democratic policies and individual rights is not given,
Constitutionalism cannot survive. Subtle assaults to individual rights especially

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PHILOSOPHICAL UNDERSTANDING OF CONSTITUTION

freedom of speech, expression and privacy, such as sedition laws, surveillance laws,
undermine Constitutionalism.
RC Poudyal vs UOI: Supreme Court said that “Mere existence of a constitution, by
itself, does not ensure constitutionalism or a constitutional culture. It is the
political maturity and traditions of people that give meaning to a constitution
which otherwise would merely embody the political hopes and ideals”.

FEATURES IN INDIAN CONTEXT

1. A state by constitution: Indian constitution not just provides rights and immunities
to citizens, but it also delineates the character and structure of Indian State.
Therefore, it can also be said that the powers & extent of Indian State are limited
by Constitution.
2. Article 21 and Due process of law: In Swaran Singh vs State of UP: SC observed
that public power, including constitutional power, must never be exercised
arbitrarily or malafide, and ordinarily guidelines for fair and equal execution are
guarantees of valid use of power. The power being of the greatest moment, cannot
be a law unto itself but it must be informed by the finer canons of constitutionalism.
These requirements of Law and of Due process restrict the power of the state. Any
violation of these principles would enable the courts to strike down the law.
3. Fundamental Rights - IR Coelho vs TN: Principle of constitutionalism is based on
principle of legality which requires Courts to interpret legislations on presumption
that Parliament would not intend to legislate contrary to fundamental rights.
Legislature can restrict fundamental rights, but it is impossible for laws protecting
fundamental rights to be impliedly repealed by future statutes.
4. Written constitution: Being a written Constitution it provides for a limited
government, which is the core of Constitutionalism. Sovereign powers are divided
among 3 organs of the government. Powers of each organ are defined by
constitution and no organ, or its instrumentalities can transgress its limits.
5. Separation of power: NCT Of Delhi VS UOI: “Essence of constitutionalism is the
control of power by its distribution among several state organs or offices in such a
way that they are each subjected to reciprocal controls and forced to cooperate in
formulating the will of state.

4. CONSTITUTIONALISM VS. CONSTITUTIONAL

MORALITY
CONSTITUTIONALISM CONSTITUTIONAL MORALITY

Constitution is a form of limited Constitutional morality as per Dr Ambedkar,

government limited by a document is effective coordination between conflicting
i.e., constitution, supreme law of the interests of different people, and
land. It is a scenario where administrative cooperation to resolve them
government has to work within the amicably without any confrontation amongst
framework of rules and laws laid various groups working for the realization of
down by constitution. their ends at any cost.

Only having a written constitution Constitutional morality refers to obeying the

does not ensure constitutionalism. It law for moral as well as legal reasons.
can be ensured through well-

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functioning institutions, active civil

society and a proactive judiciary.

According to Dr. Ambedkar, Constitutional morality would mean effective

coordination between conflicting interests of different people and administrative
cooperation to resolve them amicably without any confrontation amongst the various
groups working for the realization of their ends at any cost.
According to our Constitution, we assert that there are laws and rights and that we
uphold these rights not just because they are laws but because doing so is morally
correct. So, Constitutional Morality refers to obeying the law for moral reasons as
well as for legal reasons.

EVOLUTION OF CONCEPT
Propounded by George Grote in 19th century in “A History of Greece.” He described
Constitutional Morality as a “paramount reverence for the forms of Constitution” of the
land. It essentially implied a “co-existence of freedom and self-imposed restraint”.
Ambedkar Perspective:
1. Ambedkar, drawing on ideas of Grote, formulated his understanding of constitutional
morality as an effective coordination between conflicting interest of different people
and administrative cooperation to solve those issues or conflicts amicably without
indulging in any major confrontations or resorting to violent revolutions.
2. According to him, constitutional morality was answer to the existing disparity in
society and the doctrine primarily translated to respect among stakeholders in a
republic for Constitutional democracy as accepted form of governance &
administration.
The term ‘Constitutional Morality’ is not found in the Indian Constitution. Nevertheless,
we find mention of “morality” in conjunction with “public order” in the Constitution at
various places like Article 19, 25 and 26 of Constitution.

LANDMARK JUDGEMENT RELATED TO CONSTITUTIONAL MORALITY

1. Navtej Johar vs UOI: Applying the doctrine, courts must not be remotely guided by
majoritarian view or popular perception, but they must be guided by constitutional
morality. Courts differentiated between public & constitutional morality and
said that the ideal of justice always have an overriding effect. i.e., constitutional
morality has an overriding effect on public morality.
2. Joseph Shine v. UOI: The idea of “Husband as master of women” or “a woman as a
possession of her spouse” was held to be completely contrary to the spirit of
constitution ideals. Here doctrine comes as counterpoise to “Public Morality”.
3. Government of NCT of Delhi vs UOI: SC equated constitutional morality to a ‘second
basic structure doctrine’ and it was observed that constitutional morality is “not
just the forms and procedures of Constitution but provides an enabling
framework that allows a society the possibilities of self-renewal”.

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4. Indian Young lawyers Association vs Kerala: SC held that exclusion between the age
of 10-50 in Sabrimala temple for worship of Lord Ayyappan is violative of 4 key
constitutional morality tests: Justice, Liberty, Equality and Fraternity. Court noted that
the word “morality” in Articles 25 & 26 must mean constitutional morality and
not popular morality and existing structures of social discrimination must be
evaluated through the prism of constitutional morality.

SIGNIFICANCE OF CONSTITUTIONAL MORALITY

1. Safeguards and upholds enforcement of rule of law: Questions both citizens and
government, it promotes people to be an active participant of system, fight
inequalities and non-constitutional elements.
2. Promoting and reinforcing the democratic ideals: Promotes congenial
cooperation and coordination of all stakeholders, especially among citizens and
state, to pursue constitutional ambitions.
3. Bring about a positive transformation in the perception of societal or public
morality: Can be used for reading down laws or statutes which are inconsistent with
current times. For instance, in passing a law prohibiting Sati, right to life and dignity
was passed on to Indian widows who were earlier considered to be harbingers of
misfortune and ill-luck.
4. Akin to Basic Structure doctrine: Together with basic structure doctrine, CM is
known as one of the ‘Constitutional Silences’. Like the basic structure test, it imposes
implied constitutional limits on the government and ensures that government’s
actions do not violate the spirit, soul, or conscience of Constitution.
5. Moving towards achieving Constitutionalism: Constitutional morality urges
organs of State to preserve the heterogeneous nature of the society. Thus, it backs
efficacy of Constitutionalism in true sense.

CRITICISM
1. Lack of literature and clarity on the concept: As there is no explicit mention of
‘constitutional morality’ in Constitution of India and no fixed, it has been left on the
discretion of judges to interpret the essence of this doctrine and apply in requisite
situations.
2. Encourages judicial supremacy and activism by courts: Upholding and promoting
democracy by using constitutional morality encourages judicial activism by the courts.
3. Creates distrust among public towards organs of State: Top-down imposition of
constitutional morality by Courts which is an unelected and autonomous body may
instil and encourage a general distrust among public towards Legislature & Executive.

5. CONSTITUTIONAL MORALITY OVER PUBLIC

MORALITY
Under Article 19 of Constitution, power to impose reasonable restrictions on
Fundamental Rights is vested with Legislative and Executive and not with
Judiciary. Thus, clearly asserting that judiciary cannot limit Fundamental Rights
through the doctrine of Constitutional Morality but the same can be done by
Executive and Legislature under the notion of Public Morality stated in Article 19.

ISSUES WITH CONSTITUTIONAL MORALITY OVER PUBLIC MORALITY

1. Might lead to backlash by some communities or groups: Some sections of people
might perceive imposition of constitutional morality as an infringement on their own

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ways of living and culture. Ex. Sabarimala judgement led to backlash by priests of
temple, residents and other devotees.
2. Can lead to societal disharmony and increase tensions in society: Has the
potential to disturb the delicate societal balance and widen deep rooted tensions in
the society.
However, even if in the short run, imposition of constitutional morality over public
morality might lead to a backlash; in the long run it is an essential step in order to
make the progress of society possible also it creates a path for a more equitable
and just society.

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2
MAKING OF THE
Chapter CONSTITUTION
TOPICS TO BE COVERED
1. Objective resolution
2. Indian Constitution is 75% of GOI Act 1935
3. Sources of Indian Constitution

Historical Background:
1. Poorna Swaraj Resolution 1920: Complete freedom from British rule
2. Nehru Report 1928: Fundamental rights, federal set-up
3. M N Roy: Idea of Constituent Assembly 1934
4. Government of India Act 1935: Many provisions were taken from this Act
5. Cripps Mission, Cabinet mission: Advocated the idea of constituent assembly.
Formed by Constituent assembly: A constituent assembly (also known as a
constitutional convention, constitutional congress, or constitutional assembly) is a body
assembled for drafting or revising a constitution.
Composition of the Constituent Assembly: Cabinet Mission put forth the idea of a
Constituent Assembly and, therefore the composition of the Assembly was made in line
with the Cabinet Mission scheme.
Structure of Constituent Assembly:

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 292 members elected through Provincial Legislative Assemblies.

 Indian Princely States was represented by 93 members.
 Chief Commissioners’ Provinces were represented by 4 members.
 Total membership of Constituent Assembly was to be 389. But the Mountbatten Plan
of 3rd June 1947 led to the partition of India thereby leading to a formation of a
separate Constituent Assembly for newly made Pakistan. This ceased some of the
representatives of certain Provinces to be members of the Assembly, resulting in a
reduction of the membership to 299 members.
 Working of Constituent Assembly proceeded based on Objectives Resolution that was
laid before the Assembly on 13th December 1946 by Pt. Jawaharlal Nehru and was
adopted by Constituent Assembly on 22 January 1947.

1. OBJECTIVE RESOLUTION
 Established the guiding principles for building the Constitution and eventually took
the shape of the Preamble to Indian Constitution. On 22 January 1947, the
Constituent Assembly accepted this Resolution.
 According to the Resolution, the Constituent Assembly would first proclaim India as
Independent Sovereign Republic, with all territories remaining autonomous and
possessing residuary powers; all Indians would be guaranteed justice, equality of
status, freedom of thought, expression, belief, faith, worship, vocation, association,
and subject to law and public morality; and adequate safeguards would be provided
for minorities, backward, and depressed people.
1. Constituent Assembly had a total of 22 committees to investigate different tasks in
making of the constitution. Out of the 22 committees, 8 were major committees and
rest were minor committees.
2. A major chunk of deliberations of Constituent Assembly was on Draft Constitution(s)
prepared by Drafting Committee. Members of Constituent Assembly proposed
amendments which had to be submitted in advance to the Chairman, and these were
debated at length. At the end of a debate on an Article of the Draft Constitution,
Constituent Assembly either adopted or rejected amendments. It took decisions
through a majority vote.
3. On 9 December 1946, Constituent Assembly sat for the first time. In the span of 2
years and 11 months, it completed its task of framing the Indian Constitution. During
this period, Constituent Assembly had 11 sessions and sat for a total of 166 days. On
26 November, Constituent Assembly adopted the Constitution of India which came
into force on 26 January 1950.

DISSOLUTION OF CONSTITUENT ASSEMBLY

1. Following the authentication of Constitution’s copies, Constituent Assembly was
naturally dissolved, with its chairperson elected President of India and its staff
diverted to other avenues.
2. However, majority of the Assembly continued to function as provisional Parliament of
India until the first general elections were held.
3. Provisional Parliament did, in fact, make first amendment to Indian Constitution in the
summer of 1951.

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CRITICISMS OF CONSTITUENT ASSEMBLY

1. Not a Representative Body: Constituent Assembly was not a representative body,
because its members were not directly elected by people of India using universal adult
franchise.
2. Not a Sovereign Entity: Constituent Assembly was not a sovereign body because it
was established by British government suggestions. The Assembly met after the
authorization of British government.
3. Time-consuming: Critics claim that Constituent Assembly took an excessive amount
of time to draught the Constitution. They claimed that framers of American
Constitution finished their work in just four months.
4. Congress-dominated Constituent Assembly: Congress party dominated the
Constituent Assembly. ‘Constituent Assembly was a one-party assembly in an
essentially one-party society,’ said Granville Austin. The Congress was the Assembly,
and India was the Congress.’

5. Lawyer–Politician Domination: Constituent Assembly was likewise dominated by

attorneys and politicians. They argued that other constituents of society were not
adequately reflected. This, they believe, is the primary cause for the Constitution’s
volume and complication of language.
6. Hindu-dominated: Some critics claim that Constituent Assembly was Hindu-
dominated. Lord Viscount Simon referred to it as “a Hindu body.” Winston Churchill,
likewise, stated that Constituent Assembly represented “just one large community in
India.”

2. INDIAN CONSTITUTION IS 75% OF GOI ACT

1935
FEATURES OF GOVERNMENT OF INDIA ACT 1935 REFLECTED IN
INDIAN CONSTITUTION:
BICAMERAL LEGISLATURE:
Indian Parliament with Lok Sabha and Rajya Sabha forming the legislative system is
extracted from the 1935 Act.

DIVISION OF POWERS:
1. Schedule 7 of Indian constitution and Centre-state relations (Article 256-263) are
based on the above sections of the 1935 Act.
2. Powers between centre and provinces were separated into three lists with
introduction of this act: Federal List (59 items for the centre), Provincial List (54 items for
provinces), and Concurrent List (36 items for both).

RESIDUARY POWERS:
1. Residuary powers concerning items not listed in Schedule 7 lists are vested with Union
government.
2. Residuary powers in Government of India 1935 Act were handed over to Viceroy.

EMERGENCY PROVISION:

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Section 45 of Government of India Act 1935 provided provision in case of failure of

constitutional machinery.

OFFICE OF GOVERNOR:
1. Constitutional post of Governor, his appointment, and his powers are mentioned in

Article 152 to Article 162.

2. The 1935 Act established the Office of Governor with all the executive powers and
authority of the centre was vested in the Governor.

ADMINISTRATIVE DETAILS AND INTER-STATE RELATIONS:

Inter-State relations and water dispute redressal mechanisms in Indian Constitution
were inspired by Section 130 of the 1935 Act.

SEPARATION OF POWER:
1. “No discussions shall take place in Parliament with respect to the behaviour of any
Judge of Supreme Court or a High Court in the exercise of his duties,” is given by
Articles 121 and 211 of Indian constitution respectively.
2. This was taken from Section 40 and Section 86 of the 1935 Act.

3. SOURCES OF INDIAN CONSTITUTION

 Federal Scheme
 Emergency Provisions
Government
 Public Service Commissions
of India Act
 Office of Governor
1935
 Judiciary
 Administrative Details

 Preamble
Constitution  Fundamental Rights
of the  Federal structure of government
 Electoral College

 Independence of judiciary and separation of powers among three

branches of government
United
 Judicial review
States
 President as Supreme Commander of Armed Forces
 Equal protection under law

 Parliamentary form of government

 Idea of single citizenship
 Idea of the Rule of law
British
 Writs
constitution
 Institution of Speaker and his role
 Law-making procedure
 Procedure established by Law

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Irish  Directive Principles of State Policy

constitution  Nomination of members to Rajya Sabha
(Ireland)  Method of Election of President

 Freedom of trade and commerce within country and between

States
Australian
 Power of national legislature to make laws for implementing
constitution
treaties, even on matters outside normal Federal jurisdiction
 Concurrent List

French
 Republic and ideals of Liberty, Quality and Fraternity in Preamble
constitution

Constitution
 Procedure for amendment
of South
 Election of Rajya Sabha members
Africa

Constitution
 Fundamental Duties under Article 51-A
of Soviet
 A Constitutionally mandated Planning Commission to oversee
Union
development of economy.
(USSR)

Constitution  Emergency powers to be enjoyed by Union.

of Germany  Suspension of Fundamental Rights during an emergency.

Constitution
 Procedure Established by Law
of Japan

Constitution  Fundamental Duties

of Russia  Idea of Social, Economic, and Political Justice in Preamble

UNIQUENESS OF INDIAN CONSTITUTION

1. Our Constitution strikes a balance between rigidity and flexibility. Parliament can
make amendments to Constitution as per needs, according to Article 368. However,
basic structure of Constitution cannot be changed or modified. Any violation of basic
structure of Constitution is unconstitutional and is invalidated by courts.
2. Constitution of India identifies only single citizenship. In countries like USA, there
is a provision of dual citizenship. People of India are citizens of the country as a whole
and not of the respective states like in the USA.
3. Universal Adult Franchise promotes the policy of ‘one person one vote’. Every
individual of 18 years and above has the right to vote irrespective of their age,
gender, race, colour, religion etc.
4. Constitution includes all federal characteristics of governance such as dual
government system, constitutional supremacy, an independent judiciary,
bicameralism, and division of powers between the three state organs of
executive, judiciary, and legislature.
5. It is unique as it includes many unitary features also. They include strong centre,
All India Services common to centre and the states, emergency provisions that can
transform the Constitution into a unitary one, if necessary, appointment of
governors by President on the advice of the centre, etc.

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6. Unlike USA where there is a two-tiered judiciary, a single judicial system prevails
with Supreme Court at the top in India, with State and District High Courts and other
subordinate courts below and subject to the supervision of the High Courts.

WOMEN’S CONTRIBUTION IN FRAMING CONSTITUTION

1. Ammu Swaminathan had put forth that the two stable pillars on which Indian
Constitution rests are Fundamental Rights, and Directive Principles of State Policy.
2. G. Durgabai had put forth her views on appointment of Judges of Provincial High
Courts, pointing that the same should be the duty of Governor and his set of Ministers
solely. Her views on prohibition of Devadasi system, protection of children from
exploitation & limitations on freedoms provided to individuals had been remarkable.
3. Hansa Mehta majorly highlighted the need for social, economic, and political justice
for women of India considering the prolonged suppression they have been subjected
to in India.
4. Purnima Banerji put forth her views on State’s Control over Religious Instruction in
schools. She also pointed out that secularism in a true sense could only be achieved
if citizens of the nation are united among themselves.
5. Renuka Ray belonging to West Bengal Constituency focused majorly on equality of
Status and justice for women.
6. Sarojini Naidu had sought an inclusive Constituent Assembly of India.
7. Sucheta Kripalani had uplifted the environment of Constituent Assembly by singing
the verses of national song, and national anthem of India.
8. Vijayalakshmi Pandit aimed for centrality of new Asia in the Post-Raj World Order.

CRITICISM OF THE CONSTITUTION

1. It is unwieldy based on the assumption that entire constitution of the country must
be found in one compact document. But this is not even true for countries such as
US, which do not have a compact constitution.
2. It is unrepresentative as members of constituent assembly were chosen by
restricted franchise, not by Universal adult franchise.
3. It is an alien constitution, as it was made using borrowed elements from other
constitutions.
4. It is not clear why in poor developing countries certain basic socio-economic rights
were relegated to the section on DPSP, rather than made an integral part of
Fundamental rights. For ex. China made basic education as fundamental rights.
5. Constitution contained provisions of preventive detention in the Fundamental Rights
chapter reflecting compromise of Individual freedom and liberty.
6. Prone to over litigation as many of the provisions are not clearly explained. This has
increased the ambit of courts to intervene and judicial activism and over-reach.

POSITIVES OF THE CONSTITUTION

1. Comprehensive document: Provides a detailed provision for day-to-day functioning
of government as well as special provisions for times of crisis such as emergency
provisions.
2. Contains safeguards for vulnerable sections of society such as scheduled caste,
scheduled tribes, other backward classes, economically weaker sections, women,
transgender, etc to ensure a just and equitable society. Ex. Article 16 - equality of
opportunities in public employment.

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3. Ensures federal balance by providing adequate provisions for states. These include
Schedule 7, GST council etc.
4. Has the ability to transform itself to give space for future needs to make it relevant
in times of needs. Ex. constitutional amendments.
5. Gives a detailed set of fundamental rights applicable to all citizens of country.
6. Lists future courses of action for future govts, by listing the goals that the govt must
follow, these are mentioned in Directive principles of State policy.

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COMPARISON OF THE
3 CONSTITUTION
Chapter PHILOSOPHICAL AND STRUCTURAL
UNDERSTANDING

TOPICS TO BE COVERED
1. Features of Constitution
2. Comparison of Constitution
3. United Kingdom
4. Constitution of USA
5. France

1. FEATURES OF CONSTITUTION
SIZE OF CONSTITUTION
1. Lengthiest Constitution: Very comprehensive document and includes many matters
which could be subject matter of ordinary legislation or administrative action.
2. Constitution makers didn’t want to leave certain matters Subject to doubts, difficulties
and controversies to be handled by future legislation.
3. Unlike United States where in addition to federal Constitution, each state had its own
separate Constitution.
4. Size, diversities and complexities of Indian situation also necessitated several special
temporary Provisions.
Not only “Constitution contains a very comprehensive charter of justifiable fundamental
rights, it also delineates limitations under which these must necessarily operate unlike
us, where limitation had to be read by the court decisions.

1950 2022

395 articles 470 articles

22 parts 8 schedule 25 parts

12 schedules

RIGIDITY & FLEXIBILITY

1. Constitution is neither a frozen document nor merely a lengthy legal document but a
charter of values and principles, basically a dream of a free, just, and equal society. A
dream which is not static or unvarying but is subject to constant renewal as each
generation discovers its new founding principles. Almost like a living being,
constitution keeps responding to various situations, circumstances and experiences
arising from time to time.
2. Our Constitution accepts the necessity of modifications according to changing needs
of the society. Secondly, in actual working of Constitution, there has been enough
flexibility of interpretations. Both political practice and judicial rulings have shown
maturity and flexibility in implementing the Constitution. These factors have made
our Constitution a living document rather than a closed and static rulebook.

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PROCESS OF AMENDMENT
1. Article 368 in Part XX of Indian Constitution deals with power of Parliament to amend
constitution and its procedure if requires.
2. Parliament is empowered to amend or repeal any provision of constitution in
accordance with the procedure laid down for this purpose.
3. However, in Kesavananda Bharati Case 1973, Supreme Court ruled that parliament
cannot amend those provisions which form “basic structure” of Constitution.

TYPES OF AMENDMENT
Article 368 of Indian Constitution provides for two types of amendments – (i) By a special
majority of Parliament and (2) By Special majority of Parliament along with ratification of
half of the state’s legislatures by a simple majority.
Certain provisions of Constitution require amendment by a simple majority of
each house, that is, a majority of members of each house present and voting (like
ordinary legislation). These amendments are not considered to be amendments
under Article 368.
Thus, Amendment of Indian Constitution is possible in three ways:
 Amendment by a simple majority of the Parliament
 Amendment by a special majority of the Parliament
 Amendment by a special majority of the Parliament, and the ratification of half of the
state legislatures

SIMPLE MAJORITY
This refers to the majority of more than 50% of the members present and voting
and it is outside the ambit of Article 368. This is also known as the functional
majority or working majority. The simple majority is the most frequently used
form of majority in Parliamentary business. When the constitution or the laws do
not specify the type of majority needed, the simple majority is considered for
voting.
To understand the simple majority, let us consider a situation in Lok Sabha. On a
particular day, out of the total strength of 545, 45 were absent and 100 abstained
from voting on an issue. So only 400 members were present and voting. Then the
simple majority is 50% of 400 plus 1, i.e., 201.
Several provisions in the Constitution can be amended by a simple majority of the
two houses of Parliament outside the scope of Article 368. These provisions
include:

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1. Admission or establishment of new states.

2. Formation of new states and alteration of areas, boundaries or names of existing
states.
3. Abolition or creation of legislative councils in states.
4. Second schedule – emoluments, allowances, privileges and so on of the president,
the governors, the speakers, judges etc.
5. Quorum in Parliament.
6. Salaries and allowances of members of Parliament
7. Rules of procedure in Parliament
8. Privileges of the Parliament, its members and its committees.
9. Use of English language in Parliament
10. Number of puisine judges in Supreme Court.
11. Conferment of more jurisdiction on Supreme Court
12. Use of official language
13. Citizenship – acquisition and termination
14. Elections to Parliament and state legislatures.
15. Delimitation of Constituencies
16. Union Territories
17. Fifth schedule – Administration of scheduled areas and scheduled tribes.
18. Sixth schedule – Administration of tribal areas.

SPECIAL MAJORITY
All types of majorities other than the absolute, effective or simple majority are
known as special majority. A special majority are of 4 types, with different clauses.
Two significant provisions that can be changed by a special majority are
Fundamental Rights and Directive Principles of State Policy (DPSP). However, any
changes must stay within the constraints of Basic Structure of Constitution.
1. Type 1 – Special Majority as Per Article 249.
2. Type 2 – Special Majority as per Article 368.
3. Type 3 – Special Majority as per Article 368 + 50% state ratification by a simple
majority.
4. Type 4 – Special Majority as per Article 61.

SPECIAL MAJORITY AS PER ARTICLE 249

Special majority as per article 249 requires a majority of 2/3rd members present
and voting. For example, if out of the 245 members in Rajya Sabha, only 150 are
present and voting, then the special majority required as per article 249 would be
101.
Cases where special majority as per article 249 is used:
 To pass Rajya Sabha resolution to empower the parliament to make laws in the state
list. (Valid up to 1 year but can be extended any number of times).

SPECIAL MAJORITY AS PER ARTICLE 368

It requires a majority of 2/3rd members present and voting supported by more
than 50% of the total strength of the house. This type of majority is used for most
Constitutional Amendment bills. To pass a Constitution Amendment bill in Rajya

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Sabha, in addition to getting the support of 123 members, the bill should be
favoured by more than 2/3rd of the members present and voting.
Cases where special majority as per Article 368 is used:
1. To pass a Constitutional Amendment Bill which does not affect federalism.
2. Removal of judges of SC/HC.
3. Removal of CEC/CAG.
4. Approval of a national emergency requires a special majority as per Article 368 in both
houses.

SPECIAL MAJORITY AS PER ARTICLE 368 PLUS STATE RATIFICATION

This type of special majority is required when a Constitutional Amendment bill
tries to change the federal structure. Special majority as per Article 368 plus state
ratification requires a majority of 2/3rd members present and voting supported by
more than 50% of the state legislatures by a simple majority.
Cases where special majority as per Article 368 plus state ratification is used: To
pass a Constitutional Amendment bill affecting federalism. Ex. position of High Court
Judges.
Special majority as per Article 61 requires a majority of 2/3rd members of total strength
of the house. In Lok Sabha, the special majority as per Article 61 is 364 while in Rajya
Sabha, special majority as per article 61 is 164.
Cases where special majority as per article 61 is used: For the impeachment of
President

PROCEDURE FOR AMENDMENT

1. An Amendment of Constitution may be initiated only by introduction of a Bill for the

purpose in either House of Parliament, not in the state legislature.
2. Prior permission of President for introducing a Constitution Amendment bill in
Parliament.
3. The bill can be presented by a minister or a private member.

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4. The bill must be passed in each house by a special majority i.e., majority of total
membership of the house and majority of two third of members of house present
and voting.
5. Each house must have to pass the bill separately and there is no provision for joint
sitting if any case of disagreement arises between the two houses.
6. If the bill seeks to amend the federal feature of Constitution, it must also be ratified
by half of the state legislature with a simple majority.
7. After duly passed by both houses and ratified by the states (if required), the bill is
presented to President for his assent.
8. President can neither withhold nor return the bill for the reconsideration purpose of
parliament. Hence, President must have to give his assent to the bill.
9. After the assent of the President, the bill will become an Act.

INDIAN CONSTITUTION IS CALLED A LIVING DOCUMENT

 Earliest mention of Constitution as “living document” comes from Wilson’s book
Constitutional Government in United States where he highlighted, ‘Living
political constitutions must be Darwinian in structure and in practice.’ Therefore,
Constitution should be viewed not merely as law but also as a source of foundational
concepts for the governing of society.
 Role of Judiciary: Judiciary has played an important role in not only saving the
essence of Constitution but also in its evolution.
1. Basic structure Doctrine: Propounded in Kesavananda Bharati Case, 1973. It
restricts Parliament from altering essential features of Constitution or what Supreme
Court termed as Basic Structure. Basic structure includes various Constitutional ideals
such as secularism, rule of law, federalism etc.
2. Transformative nature of Constitution: Courts, at various point of time, have
brought transformative changes through a broad reading of our Constitution. Courts
have regularly included various rights under existing Fundamental Rights to suit
changing times. For ex, Supreme Court in Puttaswamy Case recognised Right to
Privacy as a part of Fundamental Rights under Article 21.

CRITICISM OF AMENDMENT PROCEDURE IN INDIA

1. No Special Body: There is no provision for a special body to change the Constitution,
such as a Constitutional Convention (as in United States) or a Constitutional Assembly.
2. Exclusive to Parliament: Parliament has sole authority to propose a constitutional
modification. Except in one situation, when passing a resolution seeking the creation
or elimination of legislative councils in the states, state legislatures are unable to
introduce any bill or proposal to modify the Constitution.
3. States have no power to ratify or reject amendments: Constitution makes no
provision for the state legislatures to ratify or reject or amend an amendment that is
presented to them. It is silent on the question of whether states can revoke their
permission after giving it.
4. No joint Sitting: If there is a deadlock over the passage of a constitutional change
bill, there is no provision for a joint sitting of both Houses of Parliament.
5. Similar process as Ordinary law making: Procedure for amending a document is
comparable to the procedure for enacting legislation. Constitutional amendment
legislation must be carried by Parliament in the same way as other laws, except for
the special majority requirement.
6. Room for judicial intervention: They give a lot of room for the courts to intervene.

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SCHOLARLY VIEWS ON CONSTITUTIONAL AMENDMENT PROCEDURE

BR Ambedkar: The Assembly has not only refrained from putting a seal of finality and
infallibility upon this Constitution by denying people the right to amend the Constitution
as in Canada or by making the Amendment of Constitution subject to the fulfilment of
extraordinary terms and conditions as in America or Australia but has provided for a
facile procedure for amending the constitution.
KC Wheare: Indian constitution ‘strikes a good balance between flexibility and rigidities.
Pandit Nehru: While we want this Constitution to be as solid and permanent as we can
make it, there is no permanence in a constitution. There should be certain flexibility. If
you make any Constitution rigid and permanent, you stop the nation’s growth, growth of
a living, vital, organic people.

PARLIAMENTARY VS PRESIDENTIAL SYSTEM

A parliamentary system, also known as parliamentarianism, is distinguished by
executive branch of government being dependent on direct or indirect support of
parliament, often expressed through a vote of confidence.

FEDERAL OR UNITARY
1. In Unitary Constitution, all powers are vested in Central government to which
authorities in the units are subordinate and function as agents of government at the
Centre and exercise authority by delegation from Centre.
2. In a Federal polity, usually there is a rigid, written Constitution, which is supreme and
clearly divides powers between federal government and sub-units. In fact, in Classical
federation, only those powers that are by agreement surrendered to it by the units are
with the federal government. Also, there must be an Independent SC as the arbiter b/w
Union and States for settling disputes in an objective manner.

INDIAN CONSTITUTION IS CALLED QUASI-FEDERAL

1. Not Unitary: Because of distribution of power between Union and State.
2. Not Federal: Because of higher powers vested in Union, like emergency provisions,
enactment of laws in state list by center Article 249, residuary powers etc.

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Reason for Unique Unitary Federal mix:

 Constitutional history
 Sheer size
 Complex Diversities
 Partition and need to keep units together.
In Constituent assembly, BR-Ambedkar tried to explain the significance of using
the term Union of States rather than Federation of States.
1. Indestructible Federation: Though Country and people may be divided into
different States for Convenience of administration, the country is one integral whole.
2. Federation is not the result of Agreement between the States and no states have right
to secede.
Text of Constitution does not use the term “Federation” or Federal. Supreme Court
has spoken of Indian Union as Federal, Amphibian, and quasi-Federal, sometimes
Unitary.

FEATURES OF PARLIAMENTARY SYSTEM

1. Nominal and real executive: President is nominal executive while Prime Minister is
real executive.
2. Majority party rule: Political party or group of political parties which secures majority
seats in Lok Sabha forms the political executive (Government).
3. Collective responsibility: Ministers are collectively responsible to Parliament in
general and Lok Sabha in particular (article 75).
4. Political Homogeneity: Usually Council of Ministers belongs to the same political
party, and hence share same political ideology.
5. Double membership (diluted separation of powers between executive &
legislature): Ministers are both members of legislature and executive.
6. Leadership of Prime Minister: Prime Minister is leader of Council of Ministers,
Leader of political party and leader of Parliament.
7. Dissolution of Lower House: Lower House can be dissolved by President on
recommendations of Prime Minister.
8. Secrecy: Ministers work on principle of secrecy and cannot divulge information.
Though, Indian Parliamentary system has been borrowed from Westminster
system. However, it would be wrong to say that we have British Parliamentary
System in toto.

INDIAN VS. BRITISH PARLIAMENTARY DEMOCRACY

1. India has a republican system while British has a monarchial system.

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COMPARISON OF THE CONSTITUTION

2. British system is based on sovereignty of Parliament while Indian system is based on

supremacy of Constitution.
3. In Britain, Prime Minister must be member of Lower House, while in India he may be
member of any house.
4. In Britain, Members of Parliament are appointed as minister, in India even non
member can be appointed as minister, but for a maximum period of 6 months.
5. Britain has the system of legal responsibility of minister, while India has no such
system.
6. ‘Shadow cabinet’ is prevalent in Britain, which is formed by opposition party to balance
the ruling cabinet, and prepare members for future ministerial office.

PRESIDENTIAL SYSTEM
1. President is both head of state and head of government.
2. President governs through cabinet which is an advisory body selected & appointed by
him.
3. President and his secretaries do not have membership of Parliament.
4. President cannot dissolve the house.
5. Doctrine of separation of powers is followed strictly.

PARLIAMENTARY VS PRESIDENTIAL DEBATE

Arguments in favour of Presidential system
Stability: Establishes a stable executive which does not depend upon the fluctuating will
of legislature.
More democratic: The US model is decentralized, and chief executive (President) is
elected directly by the people. This enables local expression and real self-governance.
Parliamentary system, on the other hand, is inherently unitary, with Central government
controlling the entire country.
Better Administration: President can appoint anyone as secretaries (equivalent to
ministers) who are not members of Parliament. Top administrators are experts in the
field of administration to which they are assigned.
Stricter separation of powers: In Parliamentary system, there is overlap in Legislature
and Executive, weakening the prospect of legislature holding executive accountable.
Faster decisions: US President is more powerful, than India President domestically
hence faster decision making is possible in the former. Thus, in presidential form, there
is possibility of misuse of powers and legislatures are likely to be less dominant &
arrogant.
More Governance: Presidential system provides a fixed tenure for President. This
ensures stability of government and enables it to form medium-and long-term plans.

ARGUMENTS AGAINST PRESIDENTIAL SYSTEM

Abuse of office: Presidential system is vulnerable to abuse of power and at worst,
dictatorship due to the enormous power that is concentrated in the office of President.
Friction among government offices: Separation of powers seen in the US may cause
delays in execution of government programs, especially when the executive-legislative
relations are not properly managed.
Democratic stalemate: If legislature is dominated by the party opposed to president’s
party, there is a possibility of stalemate in governance because both President and
legislature would have democratic legitimacy.

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PREAMBLE

It declares the great rights and freedoms which the people of India intended to secure
to all citizens and the basic type of government and polity which was to be established.
It is ordained by the people of India through their representatives assembled in a
Sovereign Constituent Assembly. The Preamble declares in unambiguous terms
that it is the people of India who have adopted, enacted and given to themselves
the Constitution. It declares, therefore, that the source of authority under the
Constitution is the People of India and there is no subordination to any external
authority.

OBJECTIVES OF THE INDIAN CONSTITUTION

The main objective of the Indian Constitution is to promote harmony throughout
the nation.
The factors which help in achieving this objective are:
 Justice:
 It is necessary to maintain order in a society that is promised through various
provisions of Fundamental Rights and Directive Principles of State Policy provided by
the Constitution of India.
 It comprises three elements, which are social, economic, and political.
 Social Justice – Social justice means that the Constitution wants to create a society
without discrimination on any grounds like caste, creed, gender, religion, etc.
 Economic Justice – Economic Justice means no discrimination can be caused by people
on the basis of their wealth, income, and economic status. Every person must be paid
equally for an equal position and all people must get opportunities to earn for their
living.
 Political Justice –Political Justice means all the people have an equal, free, and fair right
without any discrimination to participate in political opportunities.
Equality:
 The term ‘Equality’ means no section of society has any special privileges and all the
people have been given equal opportunities for everything without any
discrimination. Everyone is equal before the law.
Liberty:
 The term ‘Liberty’ means freedom for the people to choose their way of life, have
political views and behaviour in society.
Liberty does not mean freedom to do anything; a person can do anything but within the
limit set by the law.
Fraternity:
The term ‘Fraternity’ means a feeling of brotherhood and an emotional attachment
with the country and all the people.
 Fraternity guarantees two things, according to the Preamble: human dignity and
national integrity.
 “Dignity of the individual” signifies that the Constitution not only ensures material
betterment and maintains a democratic set-up, but that it also recognizes that the
personality of every individual is sacred.
 However, fraternity cannot exist unless the dignity of each individual is preserved and
respected.
 To maintain this dignity, each individual must be guaranteed certain minimal
justiciable rights.

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PREAMBLE

KEY WORDS IN THE PREAMBLE

 We, the people of India: It indicates the ultimate sovereignty of the people of India.
Sovereignty means the independent authority of the State, not being subject to the
control of any other State or external power.
Sovereign: Sovereignty means that nation states are free to decide for themselves about
the kind of democracy that they want, the kind of rulers that they want, and their policies
internally and externally. Often, the concept of sovereignty is invoked to delineate the
distinction between taking decisions on their own by nation states and resisting external
pressures to sway the decision-making process. In this respect, sovereign nations are
expected to be autonomous and independent when they pursue policies that are in their
interest and their people’s interest and not according to the dictates of a foreign power.
Internal and External Sovereignty: Internal sovereignty refers to a government
capable of demanding obedience from all persons and parties within it. Or in other
words, no one is free to refuse the sovereign or disobey without punishment. For
instance, the United States is the sovereign power over its territory, and no one–including
the heads of major corporations like Mark Zuckerberg–can refuse to obey the laws of the
land. External sovereignty refers to a government that is not subordinated to another.
Again, the United States is a good example.
While the US may take part in the United Nations and make compromises in the
realm of international diplomacy, it cannot be commanded by any foreign leader.
Taiwan is a relatively good candidate for exemplifying internal sovereignty but not
external sovereignty. While the Taiwanese government carries out its
administrative governance without any major internal dispute, its claim to
external sovereignty is disputed by China.
Socialist:
 The term means the achievement of socialist ends through democratic means.
 It holds faith in a mixed economy where both private and public sectors co-exist side
by side.
 Democratic socialism aims to end poverty, ignorance, disease, and inequality of
opportunity.
 Indian socialism is a blend of Marxism and Gandhism , leaning heavily towards
Gandhian socialism.
 It was added in the Preamble by 42nd Amendment, 1976.

Secular:

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PREAMBLE

 The term means that all the religions in India get equal respect, protection and support
from the state.
 It was incorporated in the Preamble by 42nd Constitutional Amendment, 1976.
 The word secular appeared in only one article, that is Article 25 (2)(a) before it was
inserted into the Constitution’s Preamble.
 The state will protect every religion equally, but the state will not have any foundation
on religion.
Accordingly, Articles 25 to 28 (guaranteeing the fundamental right to freedom of
religion) have been included in the constitution
Case laws:
 In Ziyauddin Burhammudin Bukhari Vs. Brijmohan Ramdass Mehra: Justice M.H Beg
said: The secular state, rising above all differences of religion, attempts to secure the
good of all its citizens irrespective of their religious beliefs and practices. It is neutral
or impartial in extending its benefits to citizens of all castes and creeds.
 Maitland has pointed out that such a state has to ensure, through its laws, that the
existence or exercise of political or civil right or the right or capacity to occupy any
office or position under it or to perform any public duty connected with it does not
depend upon the profession or practice of any particular religion.
 Justice Gajendragadkar defined secularism of the Indian Constitution to mean
equality of rights to all citizens as citizens with their religion being entirely
irrelevant in the matter. “The State” he said “does not owe loyalty to any particular
religion as such; it is not irreligious or anti- religious; it gives equal freedom to all
religions”. Indian secularism sought to establish a rational synthesis between the
“legitimate functions of religion and the legitimate and expanding functions of the
State”.
 M.C. Setalvad also believed that under a secular State all citizens are to be
treated alike and not discriminated against on account of their religion.
Ayodhya case: The Supreme Court explained secularism thus: It is clear from the
constitutional scheme that it guarantees equality in the matter of religion to all
individuals and groups irrespective of their faith emphasizing that there is no religion
of the State itself.
Democratic:
 The term implies that the Constitution of India has an established form of Constitution
which gets its authority from the will of the people expressed in an election.
 The Indian Constitution provides for “representative parliamentary democracy”
under which the executive is responsible to the legislature for all its policies and
actions.
The term ‘democratic’ is used in the Preamble in the broader sense embracing
not only political democracy but also social and economic democracy.
Republic:
 The term indicates that the head of the state is elected by the people. In India, the
President of India is the elected head of the state.
 He is elected indirectly for a fixed period of five years. A republic also means two more
things:
 First, vesting of political sovereignty in the people and not in a single individual like a
king;

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PREAMBLE

 Second, the absence of any privileged class and hence all public offices being
opened to every citizen without any discrimination.
 According to Madison in The Federalist: Republic is a government which derives its
powers directly or indirectly from the great body of the people, and is administered
by persons holding their offices during pleasure, for a limited period, or doing good
behaviour.

STATUS OF PREAMBLE
 The preamble being part of the Constitution is discussed several times in the Supreme
Court. It can be understood by reading the following two cases.
 Berubari Case: The SC agreed that Preamble was the key to the minds of the framers
of the constitution. Where the words were found to be vague or their meaning was
unclear, help of the Preamble could be taken to understand the intention of the
framers and find out whether a particular word was used in a wide or narrow context.
Justice Gajendragadkar said Preamble is not the part of the Constitution. Also it did
not confer any substantial power upon the legislatures or other organs of the state.
 It was used as a reference under Article 143 (1) of the Constitution which was on the
implementation of the Indo-Pakistan Agreement related to the Berubari Union and in
exchanging the enclaves which were decided for consideration by the bench
consisting of eight judges.
 Through the Berubari case, the Court stated that ‘Preamble is the key to open the
mind of the makers’ but it cannot be considered as part of the Constitution. Therefore
it is not enforceable in a court of law.
 Golak Nath V. State of Punjab: Justice Hidayatullah observed that the Preamble to
the Constitution epitomized principles on which the Government was to function. The
Preamble was the very soul of the constitution- eternal and unalterable.
 Bharti Chandra Bhavan V State of Mysore: The scope of the Directive Principles and
Fundamental Rights also could be better understood in the light of the objectives
enshrined in the Preamble.
 Kesavananda Bharati Case: In this case, for the first time, a bench of 13 judges was
assembled to hear a writ petition. The Court held that:
 The Preamble of the Constitution will now be considered as part of the
Constitution.
 The Preamble is not the supreme power or source of any restriction or
prohibition but it plays an important role in the interpretation of statutes and
provisions of the Constitution.
So, it can be concluded that preamble is part of the introductory part of the Constitution.
Justice Sikri held: The Preamble was not only very much a part of the Constitution,
but was of extreme importance and the Constitution should be read and
interpreted in the light of grand and noble vision expressed in the Preamble. Any
provisions of the Constitution could be amended under article 368 only within the
broad contours of the Preamble and of the Constitution
In the words of the learned Supreme Court, The edifice of our Constitution is
based upon the basic elements mentioned in the Preamble. If any of these
elements are removed, the structure will not survive and it will not be the same
Constitution or it cannot maintain its identity.
 The 1995 case of Union Government Vs LIC of India: The Supreme Court has once
again held that Preamble is an integral part of the Constitution but is not directly
enforceable in a court of justice in India.

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PREAMBLE

AMENDMENTS TO THE PREAMBLE

 42nd Amendment Act, 1976: After the judgement of the Kesavanand Bharati case, it
was accepted that the preamble is part of the Constitution.
 As a part of the Constitution, the preamble can be amended under Article 368 of the
Constitution, but the basic structure of the preamble cannot be amended.
 As of now, Preamble is only amended once through the 42nd Amendment Act, 1976.
 The term ‘Socialist’, ‘Secular’, and ‘Integrity’ were added to the preamble through
42nd Amendment Act, 1976.
 ‘Socialist’ and ‘Secular’ were added between ‘Sovereign’ and ‘Democratic’.
 ‘Unity of the Nation’ was changed to ‘Unity and Integrity of the Nation’.
Recent Private Member Bill: It seeks to substitute “EQUITABLE” for the word
“SOCIALIST” in the Preamble to the Constitution. For the words “EQUALITY of
status and of opportunity”, the Bill seeks to substitute the following:
 “EQUALITY of status and of opportunity to be born, to be fed, to be educated, to get a
job and to be treated with dignity.
 ACCESS to information technology and all its implications, irrespective of caste, creed,
social status or income;”
 For the words “FRATERNITY assuring the dignity of the individual and the unity and
integrity of the Nation”, the Bill seeks to substitute the following, namely:
 “FRATERNITY assuring the dignity of the individual and the community and the unity
and integrity of the Nation
 HAPPINESS, assuring a high gross domestic happiness”.

MODIFICATION IN PREAMBLE
If we see the Preamble from a broader perspective, it seems to contain all the
necessary things required for social welfare and development of India. But if we
go in depth, then we could find out the necessity for constitutional reforms or
modifications in Preamble.
 Preamble is a carbon copy of Government of India Act, 1935, as it had included lots of
provisions of Act, 1935. Even Preamble does not reflect the political tradition of India,
Interpretation of Preamble made it too bulky as interpreting every word of Preamble
is too long and hectic task.
 The paradise of lawyers being too legalistic and complicated.
 Further on, the words- equality and justice had inconsistency. Justice in the political
field is not done as only earning more and more vote banks (through legal/ illegal
means) and political ends are there in the mind of leaders. This results in an increase
in corruption. The Indian government runs on the principle of utility thus keeping
aside individual interest in front of social interest. If this is happening then where
equality is, as this principle does not follow the reasonable classification.
India although declared itself as a secular country, still today, most of the fights, riots or
violence are in the name of religion. The historical and cultural theme of India is based
on the concept of Dharma, which is different from the concept of religion and thus,
communist theory of state cannot be applied to the Indian context.

REQUIREMENT FOR MODIFICATION

 It is considered as the conscience of the Constitution and is treated as the guiding
light in the interpretation of the Constitution.

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PREAMBLE

 The Preamble is widely accepted as the epitome or soul and spirit of the Indian
constitution.
 Though, it is a part of the Constitution, it is a neither a source of power to
legislature nor a prohibition upon the powers of legislature.
Conclusion
Thus, the analysis of various concepts and terms in the Preamble shows that the
noble words of our Preamble represent the quintessence, the philosophy, the
ideals or the soul of the entire Constitution of India. Other parts and provisions of
the Constitution are only an elaboration and an attempt to give concrete shape,
content and meaning to the words of the Preamble. It is however felt that the
words like Socialist, secular used in Preamble are very ambiguous.

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5
UNION AND ITS
Chapter TERRITORY
TOPICS TO BE COVERED
1. Constitutional Provisions
2. Reorganisation of States

1. CONSTITUTIONAL PROVISIONS
ARTICLE 1
It talks about the Name and Territory of the Union.
Article 1(1): Lays down that India that is Bharat, shall be a union of states. The emphasis
on India being a Union was to convey the fact that it was not the result of a compact or
agreement between the constituent units but a fortnight declaration by Constituent
Assembly which derived its power and authority from the sovereign people of India. No
State could therefore secede from the Union. Dr Ambedkar said in the Constituent
Assembly, Americans had to wage a civil war to establish that States have no right of
secession, and their Federation was indestructible. Drafting Committee thought that it
was better to make it clear at the outset rather than to leave it to speculation or to
Article 1(2): State and territories shall be specified in the First schedule.
Article 1(3): Territory of India shall comprise:
1. Territories of States
2. Union territories
3. Any territories that may be acquired e g. Pondicherry, Goa, Daman and Diu which
were added by 14th,12th, and 10th Constitutional amendment following their de jure
transfer to India.
Article 1(3)(c) does not expressly confer power on Government of India to acquire new
territories, but, it is the inherent right of a sovereign State to acquire a foreign territory
and no Parliamentary legislation is required for this purpose.
This Clause merely states that a new territory, which may be acquired by Government
of India, shall be automatically absorbed or assimilated into the territory of India. The
expression acquired means mode of acquisition as per international law like
occupation, cessation, subjugation, conquest and prescription.

ARTICLE 2
Article 2 of Constitution provides: “Parliament may by law admit into the Union,
or establish, new States on such terms and conditions as it thinks fit.”
It confers two different powers on the Parliament, viz.,
1. Power to admit into the Union new States
2. Power to establish new States.
 The first refers to admission of States which are duly formed and established and are
already in existence. The second refers to admission and formation of a State which

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UNION AND ITS TERRITORY

was not in existence before. It is to be noted that Article 2 deals with admission or
establishment of new States into Union of India which may be formed of the territories
not included in the existing States.
Article 2 provides that a new State can be admitted to the Union by Parliament “by
law”. The expression “by law” is significant. It requires legislative action on part of
Parliament for admission of a new State. Therefore, acquisition of a foreign territory by
India, in exercise of its inherent right as a sovereign State, automatically makes the said
territory a part of the territory of India under Article 1 (3) (c), but the said territory can be
admitted, as a State, into the Union, by the process of law, enacted by Parliament under
Article 2.
Article 3: It states that Parliament may by law form a new State by separation of a
territory from any State or by uniting two or more States completely or in parts or by
uniting any territory to a part of any State. It deals with:
(a) Form a new State by separation of territory from a State or by uniting two or
more States or parts of States;
(b) Increase the area of any State.
(c) Diminish the area of any State.
(d) Alter the boundaries of any State.
(e) Alter the name of any State:
Thus, Parliament can increase or diminish the area of any State or can alter the
boundaries or names of any State.
Parliament follows the following procedures in this regard.
Step-1: Either House of the Parliament, only on the recommendation of President, can
introduce a Bill giving effect to any or all the changes stated above.
Step-2: If such a bill affects the boundary or name of a State, then President will refer
the Bill to the concerned State Legislature before introducing it in Parliament for their
opinion.
Step-3: If the State Legislature fails to express an opinion within the given time limit then
it is deemed that it has expressed its views. Parliament is not bound to accept or act on
the view of the State Legislature.
In case of UTs, it is not necessary to seek views of Legislatures of UTs before such a Bill.

ARTICLE 4
It says that any law referred to in Article-2 or Article-3 will contain such provisions for
amendment of First & Fourth Schedule necessary to provide effects to the provisions
of law and may also contain such supplemental, incidental, and consequential provisions,
as Parliament may deem necessary.
This Article allows for consequential changes in First Schedule i.e. names of States in
Union of India and Fourth Schedule i.e. a number of seats allotted in the Rajya
Sabha for each state. Constitution will not treat any such law altering existing States or
creating a new State, as amendment.
Article 3 is the further extension of Article 2 with added features. Article 2 is related to
admission or establishment of new states that are not part of India. This Article provides
power to create a new state beyond the present territory. Article-3 deals with
establishment or creation of new states after reorganization of existing states which are
already parts of India.
Thus, Article 3 demonstrates the vulnerability and dependence of States’ territorial
integrity on the Union.

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ALTERATION OF AREA, BOUNDARY OR NAME OF A UNION

TERRITORY
 In Re: Berubari Union and Exchange of Enclaves, it was observed that Article 3 did not
refer to Union Territories. To provide for this omission, Constitution (Eighteenth
Amendment) Act, 1966, inserted Explanation I in Article 3. This Explanation makes
clear that the term “State” in Clauses (a) to (e) of Article 3 includes a “Union Territory”.
 It also provides that the power conferred on Parliament by Clause (a) of Article 3, to
form a new State, includes the power to form a new Union Territory also.
Cessation of Indian Territory to a Foreign State: Cessation of a territory means
transfer of sovereignty over such territory from one State to another. As an attribute of
sovereignty, a sovereign State possesses the power not only to acquire new territory but
also to cede any part of its territory to a foreign State.
There is no provision in Constitution enabling cessation of Indian territory to a foreign
State. Clause (c) of Article 3 empowers Parliament by law to diminish the area of any
existing State. Parliament, under this Clause, may even cut away the entire area of a
State. But, the scope of this Clause is restricted to inter-State adjustments and does not
cover the case of cessation of a part of the territory of India to a foreign State.
Question relating to cessation of a part of territory of India came up for
consideration before the Supreme Court in Re Berubari Union case:
 Power of Parliament under Article 3 (c) does not cover ceding Indian territory to a
foreign State. It is for interstate adjustments only. Transfer of a territory to a foreign
state can only be done by Constitutional Amendment.
 Supreme Court in 1969 ruled that settlement of a boundary dispute between India
and another country does not require a constitutional amendment. It can be done by
executive action as it does not involve cession of Indian Territory to a foreign country.

100TH CONSTITUTIONAL AMENDMENT ACT

100th CAA: Exchange of certain enclave territories with Bangladesh and conferment of
citizenship rights to residents of enclaves consequent to signing Land boundary
Agreement (LBA) treaty between India and Bangladesh.

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UNION AND ITS TERRITORY

2. REORGANISATION OF STATES
STATE REORGANISATION COMMISSION
To study the prospect of linguistic restructuring, government created a commission
chaired by S.K. Dhar. Administrative reorganization was prioritized by S. K. Dhar
Commission above linguistic reorganization. A linguistic principle for reorganisation of
states was also rejected by JVP Committee, which included Jawaharlal Nehru, Sardar
Patel, and Pattabhi Sitaramayya.
However, first linguistic state, Andhra Pradesh, was founded in 1953 when Telugu-
speaking districts of Madras State were separated into a separate province. The agitation
claimed the life of Potti Sriramulu, who had been on a 56-day hunger strike. Because
there were so many more linguistic requests, a commission was made led by Justice F.
Fazl Ali and including members H. N. Kunzru and KM. Panikkar.
Fazl Ali Commission recognised four major factors for reorganisation of provinces:
 Linguistic & Cultural similarities.
 Strenthening & preserving the unity & integrity of India.
 Administrative, financial & economic considerations.
 Planning & promotion of people’s welfare.
States Reorganization Act was approved in 1956 after its recommendations were
adopted with changes. With the Seventh Constitution Amendment, the 4 allocations
of States had been overtaken by 14 as well as six UTs. Distinction between Part-A and
Part-B states was repealed and Part-C states were abolished. Some states were merged
with adjacent states while others were designated as union territories.

Reasons in favour of reorganizing the state based on languages

 A linguistic foundation would enable greater local engagement in administration.
 Linguistic areas were inherently spatially continuous, making them easy to manage.
 Local tongues that had been ignored by British might now thrive.
 In many sections of the nation, a highly combustible scenario had arisen, as well as
the decision to establish linguistic states assisted in modifying the situation.
Reasons opposing reorganization of the state based on language.
 Fostered a sense of regionalism.
 Hampered economic cooperation between nations.
 Fostered an adversarial attitude toward neighbours.

NEED FOR SECOND STATES REORGANISATION COMMITTEE

Recent creation of new states like Telangana, Chhattisgarh, Uttarakhand,
Jharkhand are based on developmental needs, where it was found that states,
even after having enough resources, could not grow like the rest of its parent
state.
In recent times, Belagavi issue has created political tussle between Karnataka and
Maharashtra. Belagavi is an area in Karnataka, which has a sizeable Marathi-
speaking population and has been at the heart of a five-decade-old border row

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between Karnataka and Maharashtra whose final order from Supreme Court is
still awaited.
Actually, there is a demand of new States by dividing the larger states like UP
along with the demand of Saurashtra, Timaraland, Gorkhaland, and Bodoland.
Despite waves of reorganisation of states with the latest being the formation of
Telangana when the priciple of linguistic there has been continued demand for
formation of new states. This is because:
 Unequal sizes of province: Differences are visible in States like UP and North eastern
states. This has led to imperfect resource distribution & varying political clout. With
few states garnering attention, while few states shrouded in negligence.
 Opened pandora’s box: In India there are more than 600 languages and many
dialects; satisfying linguistic aspirations of all groups is quite impossible. For example:
demand for redistribution of boundaries of Maharashtra and Karnataka based on
language.
 Developmental deficit: Large states overlooked the development of certain regions.
These laggard regions have been demanding a separate province to have a focused
development.
 Ethnicity: Growing ethic assertion and identity politics, rise of ethnicity focused
political parties have further increased focus on the demands for new states.
 Fueled the forces of regionalism: As a result, India is still a nation in making and
its sub-national sentiments are given precedence over Indian unity and integrity.
Basis of Formation of New States:
 Physiographic character/distinctiveness: It is an important factor for the demand
for the creation of new states, for example, Uttarakhand is a mountainous region,
Jharkhand is a plateau and Chhattisgarh is a basin.
 Level of Economic Development: Lack of industry, agrarian crisis, and a low level of
infrastructural facilities push demand for such states, growth can be achieved in spite
of these handicaps. Eg. Gorkhaland
 Resource base: New state should be self-sustainable. For ex. Tulunadu, Kudagu
would not be a self-sustainable state. Demand for Bundelkhand and Maru Pradesh is
based on this factor.
 Ethnicity: One main reason for the creation of new states in India is cultural or social
affiliations. For instance, Nagaland in Northeast was created taking tribal affiliations
into account.
 Size of state/Geographical area: Big size of states makes the governance of the
larger area difficult, which leads to inequality in the level of development within in the
state. For ex. demand for Harit Pradesh in UP and Maru Pradesh in Rajasthan.
 Tribalism or nature of society: Based on the argument that specific planning like
area-based planning or tribal planning are required to develop the region. For ex.
Chhattisgarh, Jharkhand.

ARGUMENTS IN FAVOUR OF SMALL STATES

Fасtuаl analysis of developmental reроrt of three newly states in 2000 (Uttarakhand,
Jharkhand аnd Сhhаttisgаrh) аnd Telаngаnа in 2014 сreаted shows that all оf them have
shown remarkable аnnuаl grоwth in the develорment.

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 Better democratic governance: Comparatively smaller but compact geographical

entities tend to ensure that there is better democratic governance, as there is greater
awareness among policymakers about local needs.
 Cultural homegeniety: Smaller spatial units having linguistic compatibility and
cultural homogeneity also allow for better management, implementation and
allocation of public resources in provisioning basic social and economic infrastructure
services аnd effiсienсy in аdministrаtiоn.
 Decentralisation, Devolution and Democracy: Democratic polity of India is better
served by smaller states where decision-making power is devolved to smaller regions,
and funds are devolved to the people. Thus, fulfilling democratic aspiration of people.
 Lesser power distrance: Communities situated far from the state capitals and
economic hubs tend to be laggards and handicapped. However, in smaller states
somewhat better distribution of development takes place. For ex. People have to
travel lesser distance to access administrative and judicial courts.

ARGUMENTS IN AGAINST OF SMALL STATES

 Smaller states face limitations in terms of the natural (physical) and human
resources available to it.
 Smaller states will lack agro-climatic diversity required for economic and
developmental activities.
 Smaller states are restricted in its capability to raise resources internally.
 Smaller states can also lead to hegemony of the dominant community/caste/tribe
over their power structures. In such States, aggressive Nationalism too can develop
and lead to the growth of Son of Soil doctrine.
 Attainment of statehood can lead to the emergence of intra-regional rivalries
among the subregions as happened in Himachal Pradesh, religious communities in
Punjab and Caste tribes in Haryana.
 Creation of small states may also lead to certain negative political consequences. Since
the strength of state legislature would be rather small in such states, most ruling
party or ruling coalition would remain fragile as in Uttarakhand. In such a situation,
a small group of legislators could make or break a government at will.
 Creation of smaller states can lead to an appreciable increase in the inter-state
water, power, and boundary disputes. For ex. Creation of Telangana reopened the
conflict over the waters of Godavari & Krishna which were already settled before.
 Overhead expenditures: Division of states would require huge funds for building
new capitals and maintaining many Governors, Chief Ministers, Ministers and
administrators as the case in the division of Andhra Pradesh and Telangana
(establishment of new capital at Amravati).
 In human development indicators also, there is a mixed result where smaller states
including Haryana, Punjab, Kerala, and bigger states such as Tamil Nadu, Karnataka,
etc. top the list, indicating that good governance and not size, what determines
development.
 All these factors would only make it more dependent on the Centre for financial
transfers and centrally sponsored schemes.

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CONCLUSION
Evidence shows that both large and small states have fared well, and that poor
performance is not necessarily linked to size. In fact, today, technology can help make
governing larger territories easier and bring even far-flung areas closer. A more effective
autonomous institution could also be considered in the form of an empowered body
statutorily on par with 6th Schedule areas and assigned, say, all the functional areas
under the State List except law and order, maintenance of infrastructure like national
and state highways, power transmission networks and disaster relief establishment.

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6
Chapter CITIZENSHIP
TOPICS TO BE COVERED
1. Concepts of Citizenship
2. Overseas Citizen of India, Person of Indian Origin and Citizenship (Amendment) Act
3. Person of Indian Origin (PIO)
4. Citizenship (Amendment) Act 2019
5. National People Register, National Population Register and Census

1. CONCEPTS OF CITIZENSHIP
Two well-known principles for the grant of citizenship:
 ‘Jus soli’ confers citizenship on the basis of place of birth
 ‘Jus sanguinis’ gives recognition to blood ties.
 From the time of Motilal Nehru Committee (1928), the Indian leadership was in
favour of the enlightened concept of jus soli.
 Racial idea of jus sanguinis was rejected by Constituent Assembly as it was against
Indian ethos.

NATIONALITY VS CITIZEN
Citizenship may be distinguished from nationality of a person. While the former
refers to relationship of an individual with the State from the internal aspect, the
latter refers to similar relationship from the international aspect. While all citizens
of a State must be its nationals, all nationals may not be its citizens. In India, the
term nationality is neither used in Constitution nor in Citizenship Act, 1955.
Therefore, every citizen of India would also be regarded as an Indian national.

Nationality Citizen

Nationality denotes where an individual Citizenship is a legal status in a political

has been born or holds citizenship with institution such as a city or a state. The
a state. Nationality is obtained through relationship between a citizen and the
inheritance from his/her parents. institution that confers this status is
formal,

Ethnic or Racial Legal or Juristic

Birth and Inheritance (subject to rules Birth, Inheritance, Marriage,
prevalent in the country) Nationality Naturalization, Citizenship can be changed
cannot be changed

RIGHTS TO BE ENJOYED BY CITIZEN IN INDIA

1. Article 15 – Prohibition of discrimination on the grounds of religion, race, caste, sex
or place of birth
2. Article 16 – Equality of opportunity in matters of public employment
3. Article 19 – Protection of Six Fundamental Rights
4. Article 29 – Protection of language, script and culture of minorities

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5. Article 30 – Right of minorities to establish and administer educational institutions

6. Right to vote
7. Right to contest elections

ALIEN AND FOREIGNER

A person is an alien in a State if he is not a citizen of that State. Foreigners Act, 1946 did
not use the term alien. Section 2(a) of the Act defined the term ‘foreigner’. The Act was
amended in 1957. Under the amended Act, the term ‘foreigner’ is defined to mean the
same thing as an alien, i.e., a person who is not a citizen of India.
An enemy alien is a person who is a subject of a State at war with India. It also includes
Indian subjects voluntarily residing in or trading with an enemy country, while a friendly
alien resident in India may be conferred with full civil rights as opposed to political rights,
an enemy alien is not held entitled to neither civil nor political rights.

RIGHTS ENJOYED BY FOREIGNERS EXCEPT ENEMY ALIENS

Fundamental rights available to both citizens and foreigners except enemy
aliens

Article 14 – Equality before the law and equal protection of laws.

Article 20 – Protection in respect of conviction for offences.

Article 21 – Protection of life and personal liberty.

Article 21A – Right to elementary education.

Article 22 – Protection against arrest and detention in certain cases.

Article 23 – Prohibition of traffic in human beings and forced labour.

Article 24 – Prohibition of employment of children in factories etc.

Article 25 – Freedom of conscience and free profession, practice and propagation of

religion.

Article 26– Freedom to manage religious affairs.

Article 27– Freedom from payment of taxes for promotion of any religion.

Article 28– Freedom from attending religious instruction or worship in certain

educational institutions.

REFUGEE
A refugee is a person who has fled their own country because they are at risk of serious
human rights violations and persecution there. The risks to their safety and life were so
great that they felt they had no choice but to leave and seek safety outside their country
because their own government cannot or will not protect them from those dangers.
Refugees have a right to international protection.
India does not have a law for dealing with refugees. Presently, refugees are treated as
Foreigners under Foreigners Act, 1946. However, India has offered its territory for safety
of refugees from the neighbouring countries due to its geographic locations, democratic
governance, religious tolerance and freindliness.
Internationally, refugees are governed under the UN Refugee Convention of 1951 and its
1967 Protocol. India is not a party to this convention.

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However, various high courts have various rights of refugees in India under the Universal
Declaration of Human Rights (UDHR) and International Covenant on Civil & Political
Rights (ICCPR).

RIGHTS OF REFUGEES
Non-Refoulement: Article 33 (1) of 1951 Refugee convention, non-refoulement refers to
obligation of States, not to refoul, or return, a refugee to the territories where his
life or freedom would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion. This principle is universally
acknowledged as a human right.
Right to freedom from torture or inhumane treatment: Article 5 of Universal
Declaration of Human Rights states that ‘No one shall be subjected to torture or cruel,
inhuman or degrading treatment or punishment.

INDIA AND REFUGEES

According to UN estimates, India hosts almost 213,000 refugees and asylum
seekers, most hailing from Sri Lanka, Afghanistan, China or Myanmar. India’s
location in South Asia – surrounded as it is by ethnic violence in Sri Lanka and
Myanmar, conflict in Afghanistan, and political and ethnic suppression in China
puts the country at the centre of refugee movements. India is not a party to the
1951 Refugee Convention and its 1967 Protocol, but India has had a stellar record
on the issue of refugee protection. India has a moral tradition for assimilating
foreign people and culture. Further, the constitution of India also respects the life,
liberty, and dignity of human beings.
Supreme Court in National Human Rights Commission vs. Arunachal Pradesh (1996)
held that “while all rights are available to citizens, persons including foreign
citizens are entitled to the right to equality and the right to life, among others.”
Issues due to lack of policy framework
 Absence of legal framework for refugees leads to policy ambiguity whereby India’s
refugee policy is guided primarily by adhocism and ‘political utility’.
 Absence of a legal framework increases the possibility of the domestic politicisation
of refugee protection and complicates its geopolitical fault lines.
 Absence of a clearly laid down refugee protection law opens the door for
geopolitical considerations while deciding to admit refugees or not.
For example, India’s decision in the recent case of admitting Myanmar’s refugees fleeing
to India was influenced by the possibility of irking the Generals in Naypyitaw.

REASONS INDIA DOES NOT HAVE ENABLING POLICY

1. Social consequences of permitting refugees: Violence in Arunachal Pradesh after
citizenship amendment act.
2. Refugees might create an identity crisis with indigenous people. For ex. Bangladeshi
refugees in Assam & Arunachal threaten to overtake the indigenous population of the
region.
3. Difficult to identify and deport them back to their country after a few years. For ex,
Rohingya refugees entered through North-East. Later they spread to all other states.
4. Economic consequence of permitting refugees: Increased financial responsibility
of the state.

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5. Decreases domestic wage level and replaces native people. Since illegal
immigrants and refugees require food and shelter, they also work at very low wages
in their settling areas.
6. Political consequence of permitting refugees: Disturbing level playing electoral
field as seen in Assam.
7. Issue of terrorism: These refugees, since not accepted by governments, are
vulnerable to join terror outfits for work and revenue.

SUGGESTION
 A National Immigration Commission can be appointed to frame a National
Migration Policy and a National Refugee Policy for India.
 Government must strengthen Foreigners Act 1946 and sign bilateral agreements
with neighbourhood countries regarding deportation.
 States must cooperate with centre on refugee problem. As law and order is a state list
while international relations come under Union list.
 States should follow Ministry of Home Affairs guidelines of 2018 to identify illegal
immigrants. MHA recommendations include:
 Restrictions of Illegal Migrants specific locations as per provisions of law
 Capturing their biographic and biometric particulars
 Cancellation of fake Indian documents
 Initiating legal proceedings including deportation proceedings as per provisions of law

ASYLUM SEEKER
An asylum seeker is a person who has left their country and is seeking protection
from persecution and serious human rights violations in another country, but who
hasn’t yet been legally recognized as a refugee and is waiting to receive a decision
on their asylum claim. Seeking asylum is a human right. This means everyone
should be allowed to enter another country to seek asylum.
Migrant
Migrants choose to move not because of a direct threat of persecution or death,
but mainly to improve their lives by finding work, or in some cases for education,
family reunion, or other reasons. Unlike refugees who cannot safely return home,
migrants face no such impediment to return. If they choose to return home, they
will continue to receive the protection of their government.

CONSTITUTIONAL PROVISIONS
 Citizenship is listed in the Union List under the Constitution and thus is under the
exclusive jurisdiction of Parliament.
 The Constitution does not define the term ‘citizen’ but details of various categories
of persons who are entitled to citizenship are given in Part 2 (Articles 5 to 11).
 Unlike other provisions of the Constitution, which came into being on January 26,
1950, these articles were enforced on November 26, 1949, itself, when the
Constitution was adopted.
Article 5:
 It provided for citizenship on commencement of the Constitution.
 All those domiciled and born in India were given citizenship.
 Even those who were domiciled but not born in India, but either of whose parents
were born in India, were considered citizens.

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 Anyone who had been an ordinary resident for more than five years, too, was entitled
to apply for citizenship.
 According to Article 5 of the Constitution , a person shall be a citizen of India, if , he
fulfils the following two conditions :
1. He must at the commencement of the Constitution, have his domicile in the
territory of India and
2. Such a person must fulfil any one of the following three conditions
a) he was born in the territory of India
b) either of his parents was born in the territory of India; or
c) he must have been ordinarily resident in the territory of India for not less than 5
years immediately preceding the commencement of the constitution.
Article 6:
 It provided rights of citizenship of certain persons who have migrated to India from
Pakistan.
 Since Independence was preceded by Partition and migration, Article 6 laid down that
anyone who migrated to India before July 19, 1949, would automatically become an
Indian citizen if either of his parents or grandparents was born in India.
 But those who entered India after this date needed to register themselves.
Article 7:
 Provided Rights of citizenship of certain migrants to Pakistan.
 Those who had migrated to Pakistan after March 1, 1947, but subsequently returned
on resettlement permits were included within the citizenship net.
 The law was more sympathetic to those who migrated from Pakistan and called them
refugees than to those who, in a state of confusion, were stranded in Pakistan or went
there but decided to return soon.
Article 8:
 Provided Rights of citizenship of certain persons of Indian origin residing outside India.
 Any Person of Indian Origin residing outside India who, or either of whose parents or
grandparents, was born in India could register himself or herself as an Indian citizen
with Indian Diplomatic Mission.
Article 9:
 Provided that if any person voluntarily acquired the citizenship of a foreign State will
no longer be a citizen of India.
Article10:
 It says that every person who is or is deemed to be a citizen of India under any of the
foregoing provisions of this Part shall, subject to the provisions of any law that may be
made by Parliament, continue to be such citizen.
 Article 11:
 It empowers Parliament to make any provision with respect to the acquisition and
termination of citizenship and all matters relating to it.

ACQUISITION AND TERMINATION OF INDIAN CITIZENSHIP

There are four ways in which Indian citizenship can be acquired: birth, descent,
registration and naturalisation. The provisions are listed under the Citizenship Act,
1955.

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By Birth:
 Every person born in India on or after 26.01.1950 but before 01.07.1987 is an Indian
citizen irrespective of the nationality of his/her parents.
 Every person born in India between 01.07.1987 and 02.12.2004 is a citizen of India
given that either of his/her parents is a citizen of the country at the time of his/her
birth.
 Every person born in India on or after 3.12.2004 is a citizen of the country given both
his/her parents are Indians or at least one parent is a citizen, and the other is not an
illegal migrant at the time of birth.
By Descent:
 Section 4 of the Citizenship Act, 1955, provides that a person born outside India on or
after 26th January 1950, shall be a citizen of India by descent, if, at the time of his birth,
his father is a citizen of India. However, if the father of such a person is himself a citizen
of India by descent, then, such a person shall not be a citizen of India unless-his birth
is registered at the Indian Consulate, or his father is, at the time of his birth, in the
service under a Government in India.
The Citizenship (Amendment) Act, 2003 has amended Section 4 and now unless the
parents of such person declare, in such form and in such manner as may be prescribed,
that the minor does not hold the passport of another country. A minor, who is a citizen
of India by virtue of this Section and is also a citizen of any other country, shall cease to
be a citizen of India if he does not renounce the citizenship or nationality of another
country, within six months of attaining full age.
By Registration
 Citizenship can also be acquired by registration. Some of the mandatory rules are:
 A person of Indian origin who has been a resident of India for 7 years before applying
for registration.
 A person of Indian origin who is a resident of any country outside undivided India.
 A person who is married to an Indian citizen and is ordinarily resident for 7 years
before applying for registration.
 Minor children of persons who are citizens of India.
 A person of full age and capacity who has been registered as an overseas citizen of
India for five years and who has been residing in India for two years before making an
application for registration.
 For the purpose of clauses (a) and (c) above, an applicant shall be deemed to be
ordinarily resident in India if- (I)he has resided in India throughout the period of twelve
months immediately before making an application for registration; and (ii) he has
resided in India during the eight years immediately preceding the said period of twelve
months for a period of not less than six years. For the purpose of this Section, a person
shall be deemed to be of Indian origin if he or either of his parents was born in
undivided India or in other territory which became part of India after the 15th day of
August.
By Naturalisation:
 Naturalisation is “the act by which rights of citizenship are conferred by a State upon
a person who was before, an alien to that State”. Section 6 of the Citizenship Act, 1955,
provides for the acquisition of Citizenship of India by naturalisation.
Eligibility:
 He must not be a citizen of a country where Indian citizens are prevented from
becoming citizens of that country by naturalisation.

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 He has renounced the citizenship of his own country according to the law of that
country and has notified that he has renounced renunciation to the Central
Government)
 He has either resided in India or has been in the service of Government of India for 12
months immediately preceding the date of making the application for naturalisation.
 That for 14 Years immediately preceding the above period of 12 months, he has either
resided in India or has been in the service of Government or partly the one and partly
of the other, for period amounting in aggregate to not less than 11 years.
 He is of good character.
 He has adequate knowledge of at least one language recognised by the Constitution
of India.
 The Government of India may waive all or any of the above conditions for
naturalisation, in the case of a person who, in its opinion, has rendered
distinguished service for the cause of science, philosophy, art, literature, world
peace a human progress generally.” Citizenship by incorporation of Territory:
Section 7 of the Citizenship Act, 1955, provides that if any territory, not being
part of the territory of India, becomes a part of the territory of India, the
Government of India may, by order, notified in the Official Gazette, specify the
persons, who are residents of such territory, to be citizens of India from the date
to be specified in the order.

2. OVERSEAS CITIZEN OF INDIA, PERSON OF

INDIAN ORIGIN AND CITIZENSHIP
(AMENDMENT) ACT
OVERSEAS CITIZEN OF INDIA
A foreign national,
 Who was a citizen of India at the time of, or at any time after 26th January, 1950; or
 Who was eligible to become a citizen of India on 26th January, 1950; or
 Who belonged to a territory that became part of India after 15th August, 1947; or
 Who is a child or a grandchild or a great grandchild of such a citizen; or
 Who is a minor child of such persons mentioned above; or
 Who is a minor child and whose both parents are citizens of India or one of the parents
is a citizen of India – is eligible for registration as OCI cardholder.
 Besides, spouse of foreign origin of a citizen of India or spouse of foreign origin of an
Overseas Citizen of India Cardholder and whose marriage has been registered and
subsisted for a continuous period of not less than two years immediately preceding
the presentation of the application is also eligible for registration as OCI cardholder.
 However, no person, who or either of whose parents or grandparents or great
grandparents is or had been a citizen of Pakistan, Bangladesh or such other country
as the Central Government may, by notification in the Official Gazette, specify, shall
be eligible for registration as an Overseas Citizen of India Cardholder.
 Foreign nationals cannot apply for OCI in India while on Tourist Visa, Missionary Visa
and Mountaineering Visa. Moreover, the foreigner must be ordinarily resident of India
to be eligible to apply for OCI registration in India.

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Benefits:
 Multiple entries, multi-purpose lifelong visa to visit India.
 Exemption from reporting to Police authorities for any length of stay in India
 Parity with NRIs in financial, economic and educational fields except in the acquisition
of agricultural or plantation properties.

3. PERSON OF INDIAN ORIGIN (PIO)

1. PIO means a foreign citizen( except a national of Pakistan, Afghanistan,
Bangladesh , China, Iran, Bhutan, Sri Lanka and Nepal)
2. A foreign citizen whose one of the parents/ grandparents/ great grandparents
was born and a permanent resident of India.

4. CITIZENSHIP (AMENDMENT) ACT 2019

 The amendment proposes to permit members of six communities — Hindus, Sikhs,
Buddhists, Jains, Parsis and Christians from Pakistan, Bangladesh and Afghanistan —
to continue to live in India if they entered India before December 14, 2014.
 It also reduces the requirement for citizenship from 11 years to just 6 years.
 Two notifications also exempted these migrants from the Passport Act and Foreigners
Act.
 The Act provides that the central government may cancel the registration of OCIs on
certain grounds. These include: (i) if the OCI has registered through fraud, or (ii) if,
within five years of registration, the OCI has been sentenced to imprisonment for two
years or more, or (iii) if it becomes necessary in the interest of sovereignty and security
of India.

CITIZENSHIP (AMENDMENT) ACT 2019 IS NOT APPLICABLE

 These provisions on citizenship for illegal migrants will not apply to the tribal areas of
Assam, Meghalaya, Mizoram, and Tripura, included in the Sixth Schedule to the
Constitution. These tribal areas include Karbi Anglong (in Assam), Garo Hills (in
Meghalaya), Chakma District (in Mizoram), and Tripura Tribal Areas District.
 Further, it will not apply to the “Inner Line” areas notified under the Bengal Eastern
Frontier Regulation, 1873. In these areas, visits by Indians are regulated through the
Inner Line Permit.
 Currently, this permit system is applicable to Arunachal Pradesh, Mizoram, and
Nagaland. Manipur has also been brought under the Inner Line Permit (ILP) regime
through a Gazette Notification on the same day the bill was passed in the parliament.
Different Scenario in Assam: Many organisations in Assam protested against this
act as it may grant citizenship to Bangladeshi Hindu illegal migrants. The
justification given for the act is that Hindus and Buddhists are minorities in
Bangladesh, and fled to India to avoid religious persecution, but Muslims are a
majority in Bangladesh and so the same cannot be said about them.
 Assam witnessed large-scale illegal migration from erstwhile East Pakistan and, after
1971, from present-day Bangladesh.
 This led to the six-year-long Assam movement from 1979 to 1985, for deporting illegal
migrants.

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 The All-Assam Students’ Union (AASU) led the movement that demanded the updating
of the NRC and the deportation of all illegal migrants who had entered Assam after
1951.
 The Assam Movement against illegal immigration eventually led to the historic Assam
Accord of 1985, signed by the Movement leaders and the Rajiv Gandhi government.
 It set March 25, 1971, as the cut-off date for the deportation of illegal migrants.
 Since the cut-off date prescribed under articles 5 and 6 of the Constitution was July 19,
1949 – to give force to the new date, an amendment was made to the Citizenship Act,
1955, and a new section (6A) was introduced.

SECTION 6A
 The section was made applicable only to Assam.
 It laid down that all persons of Indian origin who entered Assam before January 1,
1966 and have been ordinary residents will be deemed Indian citizens.
 Those who came after 1 January 1966 but before March 25, 1971, and have been
ordinary residents, will get citizenship at the expiry of 10 years from their detection as
a foreigner.
 During this interim period, they will not have the right to vote but can get an Indian
passport.
 In Assam Sanmilita Mahasangha (2014) where the constitutionality of the 1986
amendment was challenged (the Mahasangha argues that the cutoff year for Assam
should be 1951 instead of 1971), the court referred the matter to the Constitution
Bench.
 To examine whether Section 6A is constitutional and valid though it prescribes a
different cut-off date for Assam (1971) from the one prescribed in the Constitution for
the rest of the country (1949).
A five-judge Bench of the Supreme Court is yet to examine the constitutionality of Section
6A under which the current NRC has been prepared.
Termination of Citizenship: The Citizenship Act (1955) prescribes three ways of
losing citizenship whether acquired under the Act or prior to it under the
Constitution,
 Renunciation
 Termination
 Deprivation

RENUNCIATION OF CITIZENSHIP
 Any Indian citizen of full age and capacity may file a declaration renouncing his Indian
citizenship.
 That person loses his or her Indian citizenship once the declaration is registered.
 However, if such a declaration is made during a war in which India is involved, the
Central Government will refuse to register it.
 Furthermore, when a person renounces his Indian citizenship, his or her minor
children lose their Indian citizenship as well.
 When such a child reaches the age of eighteen, he may reclaim his Indian citizenship.

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TERMINATION OF CITIZENSHIP
 When an Indian citizen acquires the citizenship of another country voluntarily
(consciously, knowingly, and without duress, undue influence, or compulsion), his
Indian citizenship automatically terminates.
 This provision, however, does not apply while India is engaged in a war.
 If a question arises as to whether, when, or how a person obtained the citizenship of
another country, it is to be resolved by such authority and in such manner as the rules
may prescribe.

DEPRIVATION OF CITIZENSHIP
 Deprivation is the compulsory termination of Indian citizenship.
 In some situations, the Indian government can strip a person of his citizenship.
However, this does not apply to all citizens.
 It is a compulsory termination of Indian citizenship by the Central government if:
 the citizen obtained citizenship through fraud.
 the citizen demonstrated disloyalty to the Indian Constitution
 the citizen unlawfully traded or communicated with the enemy during a war.
 the citizen was imprisoned in any country for two years within five years after
registration or naturalisation.
 the citizen was ordinarily resident outside of India.

5. NATIONAL PEOPLE REGISTER, NATIONAL

POPULATION REGISTER AND CENSUS
NATIONAL PEOPLE REGISTER VS CENSUS
 Any person who has been living in an area or locality for six months or more or intends
to live in an area/locality for the next six months at the time of a survey is considered
a resident.
 The NPR is a register of all ‘residents’ of the country, prepared at several levels — local
(village/sub-town), subdistrict, district, state and national — according to the
provisions of the Citizenship Act, 1955, and the Citizenship (Registration of Citizens
and Issue of National Identity Cards) Rules, 2003. The objective of the exercise is the
create a comprehensive database of residents of the nation including their
demographic particulars. The exercise is carried out under the supervision of Registrar
General and ex-Officio Census Commissioner, India. Every citizen of India has to be
issued a national identity card under the law.

NATIONAL POPULATION REGISTER (NPR) VS NATIONAL REGISTER

OF CITIZENS (NRC)
National Population Register (NPR) National Register of Citizens (NRC)

All people staying in India 6 months and Indian born or Indian parents or staying in
above and who intends to reside for 6 India for 11 years are eligible for Indian
months or more including foreigners Citizenship

Prepared with Census 2011 and was First prepared during 1951 census and it is
updated in 2015. The next update is not updated regularly. Assam is the only
scheduled during the next census from

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April 1, 2020 and September 30, 2020. Only state in the country where the NRC is
Assam would not participate in this activity updated

NPR is not a citizenship enumeration drive NRC is a citizenship enumeration drive as it

as it includes foreigners as well includes Indian citizens only

It is compulsory for all Indian residents to NRC is a subset of NPR where only the
register with the NPR. The main purpose of citizens of Indian are taken into account
the NPR is to identify illegal migrants and
identify them as foreign national.

DETAILS REQUIRED FOR NPR

The demographic details of every individual are required for every usual resident
on 21 points which includes ‘date and place of birth of parents’, last place of
residence, Permanent Account Number (PAN), Aadhar (on a voluntary basis), Voter
ID card number, Driving License Number and Mobile Number.
In the last NPR done in 2010, the data was collected on the 15 points and it did not
include ‘date and place of birth of parents’ and last place of residence.

CENSUS
 The responsibility of conducting the decennial Census rests with the Office of the
Registrar General and Census Commissioner, India under the Ministry of Home
Affairs, Government of India.
 In the Census, data is collected on demographic and various socio-economic
parameters like education, SC/ST, religion, language, marriage, fertility, disability,
occupation and migration of the individuals.
Two different phases of census:
 House listing and housing census
 Population enumeration.
Some facts:
 For the first time, population counting was conducted in the Rig Vedic period.
 From 1951, census was done as per census act 1948.
 The Census 2021 will be conducted in 18 languages out of the 22 scheduled languages
(under 8th schedule) and English, while Census 2011 was in 16 of the 22 scheduled
languages declared at that time.
 It also will introduce a code directory to streamline the process.
The option of “Other” under the gender category will be changed to “Third Gender”.

POPULATION CENSUS
The Population Enumeration follows the Housing Census within a gap of six to
eight months which counts each and every person in the country, Indian national
or otherwise, along with his or her individual particulars and information on social,
cultural, demographic, economic and other aspects
Concern with Census:
 Underutilisation and non-utilisation of Census Data.
 There are numerous large-scale surveys published by different ministries of govt of
India.
 Data collected are not disseminated on time, despite the use of technology. Ex:- Data
on migration was released in 2017 eco survey though collected in 2011.

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 Census based information was important at a time when there was no alternative way
of gauging the dynamics of population change.

OBJECTIVES OF SECC 2011

The SECC, 2011 has 3 major objectives:
 Households to be ranked based on their socioeconomic status. State Governments
can then prepare a list of families living below the poverty line.
 To obtain authentic information about caste-wise population of the country.
 To obtain authentic information regarding the socioeconomic condition, and
education status of various castes and sections of the population
Methodology used for SECC Data:
 Excluded- It identified the parameters to automatically exclude certain households.
Some parameters are pucca house with four or more rooms, a car, washing machine,
fridge and two-wheeler.
 Automatically included – Those facing certain residential, social or occupational
vulnerabilities, such as homeless or living in informal housing, households with no
able-bodied persons or adults or groups like beggars, rag pickers or sanitation
workers.
 Others -The remaining households will be ranked using 7 Deprivation Indicators.
Deprivation Indicators: SECC, depicted deprivation using seven indicators:
 Households with a kutcha house.
 Without an adult member in working age.
 Headed by a woman and without an adult male in working age.
 With a disabled member and without an able bodied adult.
 Scheduled Castes/ Scheduled Tribes (SC/ST).
 Without literate adults over 25 years
 The landless engaged in manual labour.
Benefits of caste census:
 It will reveal the elites among the backward class and thus has a potential to make an
efficient reservation system.
 It will enable data driven policy making.
 The status of migrants from one state to another state, and status of children of inter
caste marriage will also be known.
Issues:
 It will perpetuate the caste system.
 It will harden caste identities.
 If any data fudging happens while enumeration, it will spoil the entire system of
reservation.
 Can further strengthen caste based politics.

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7
Chapter FUNDAMENTAL RIGHTS
TOPICS TO BE COVERED
FUNDAMENTAL RIGHTS AND ITS FEATURES
1. Natural, Human, Legal & Moral Rights
2. Article 12
3. Article 13
4. Article 14
5. Article 15
6. Article 16
7. Article 17
8. Article 18
9. Article 19
10. Article 20
11. Article 21
12. Article 21A
13. Article 22
14. Article 23
15. Article 24
16. Article 25-28
17. Article 29 & 30
18. Article 32-35

FUNDAMENTAL RIGHTS AND ITS

FEATURES
1. NATURAL, HUMAN, LEGAL & MORAL RIGHTS
In simple words, rights are the common claims of people which every civilized
society recognizes as essential claims for their development, and which are
therefore enforced by the state.
 According to Laski, “Rights are those conditions of social life without which no man
can seek in general, to be himself at his best.”
 T. H. Green explained that “Rights are powers necessary for the fulfilment of man’s
vocation as a moral being.”
 Beni Prasad stated that “Rights are nothing more nor less than those social conditions
which are necessary or favourable to the development of personality.

VARIOUS KINDS OF RIGHTS

NATURAL RIGHTS
 These are universal rights which are inherent in every individual being a part of human
nature.

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 They are not conferred by law but only recognized and made enforceable by law. For
example, right to life.

HUMAN RIGHTS
 Human rights are like natural rights in the sense that they are universal and are
intrinsic in human nature.
 They are needed for dignified human life and are enjoyed irrespective of social,
political, and other considerations.
The Protection of Human Rights Act 1993 describes” Human Rights mean rights
relating to life liberty, equality and dignity of the individuals guaranteed by the
constitution or embodied in the International Covenants and enforceable by
courts in India.”
United Nation Centre of Human Rights defines Human Rights as “those rights which
are inherent in our nature and without which we cannot live as human beings”.
Universal Declaration of Human Rights which was adopted in 1948, states
human rights as “rights derived from the inherent dignity of the human
person”.
Characteristics of human rights:
 Human Rights are Inalienable: They are innate in all individuals irrespective of their
caste, creed, religion, sex and nationality. Human rights are conferred to an individual
even after his death. The different rituals in different religions bear testimony to this
fact.
 Human Rights are associated with human dignity: To treat another individual with
dignity regardless of the fact that the person is a male or female, rich or poor is
concerned with human dignity.
 Human Rights are Irrevocable: Human rights are irrevocable as they cannot be
taken away by any power or authority because these rights originate with the social
nature of man in the society of human beings, and they belong to a person simply
because he is a human being. As such human rights have similarities to moral rights.
 Human Rights are essential for the fulfilment of purpose of life: Human life has a
purpose. The phrase “human right” is applied to those conditions which are essential
for the fulfilment of this purpose. No government has the power to curtail or take
away the rights which are sacrosanct, inviolable, and immutable.
 Human Rights are Dynamic: Human rights are not stationary, they are dynamic.
Human rights go on expanding with socio-eco-cultural and political developments
within the State. Judges must construe laws in such ways as are in tune with the
changed social values.

LEGAL RIGHTS:
 Legal rights are rights which are guaranteed by any statute for the time being in force.
 For example, it could be a legal right of a son against his deceased father’s property
or right of a citizen to vote.

MORAL RIGHTS:
 Moral Rights are based on human consciousness.
 They are supported by the moral force of the human mind. These are based on human
sense of goodness and justice.
 These are not assisted by the force of law. Sense of goodness and public opinion are
the sanctions behind moral rights.

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 If any person disrupts any moral right, no legal action can be taken against him.
 The state does not enforce these rights. Its courts do not recognize these rights. Moral
Rights include rules of good conduct, courtesy and of moral behaviour. These stand
for moral perfection of the people.

DIFFERENCE BETWEEN FUNDAMENTAL RIGHTS AND HUMAN RIGHTS

 Fundamental Rights are defined as, ‘The Rights that ensures the civil liberty of the
citizens of the country , irrespective of their race, cast, gender, place of birth or religion
and allows the citizens of the country to lead their life as per their wants are known as
fundamental rights.’
 Human rights are defined as, ‘the basic rights and freedoms of a person, from birth
which all Human beings are entitled to, and stays until death.’ As human rights are
essential for all, no one is discriminated against based on religion, caste, gender, place
of birth, etc.

Basis of
Human Rights Fundamental Rights
Difference

Basic rights of the people that The Rights that ensure the civil
promote fairness, equality, liberty of the citizens i.e., to
Meaning
freedom and respect for all the lead their life as per their
people. wants.

These are country specific i.e.,

only
These are universal i.e., accepted
Scope exists for the people of a
all over the globe.
particular
country.

These are guarded These are guarded by the

Guarded by internationally as they are constitution as they are
universally accepted. country specific.

Enforcement Enforced by the organisation of Enforced by the law of a

Authority the United Nations. specific country.

FEATURES OF FUNDAMENTAL RIGHTS IN INDIA

INTEGRAL PART OF THE CONSTITUTION
Fundamental Rights have been made an integral part of the Constitution and hence
cannot be taken away by ordinary legislation. Any law passed by any legislature in the
country would be declared null and void if it is derogatory to the rights guaranteed by
the Constitution.

PROTECTED BY CONSTITUTION
 Fundamental Rights, unlike ordinary legal rights, are protected and guaranteed by the
constitution of the country.
 Some of the rights are available only to the citizens while others are available to all
persons whether citizens, foreigners or legal persons like corporations or companies.
 Not Sacrosanct, Permanent, or Absolute
 They are not sacrosanct or permanent and the Parliament can curtail or repeal them
but only by a constitutional amendment act.
 The rights are not absolute but qualified.

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 The state can impose reasonable restrictions on them, however, the reasonability of
the restrictions is decided by the courts.
 They are Justiciable
 The rights are justiciable and allow persons to move the courts for their enforcement,
if and when they are violated.
 Any aggrieved person can directly go to the Supreme Court in case of violation of any
fundamental right.
 Suspension of Rights
 The rights can be suspended during the operation of a National Emergency except the
rights guaranteed by Articles 20 and 21.
 Further, the six rights guaranteed by Article 19 can be suspended only when there is
an external emergency war or external aggression) [and not on the ground of armed
rebellion (i.e., internal emergency].
 Restriction of Laws
 Their application to the members of armed forces, paramilitary forces, police forces,
intelligence agencies and analogous services can be restricted or abrogated by the
Parliament (Article 33).
 Their application can be restricted while martial law (military rule imposed under
abnormal circumstances) is in force in any area.

2. ARTICLE 12
It defines the term “State” as used in different Articles of Part III of the
Constitution. It says that unless the context otherwise requires the term “State”
includes the following: –
 The Government and Parliament of India, i.e., Executive and legislature of the Union
 The Government and the Legislature of each State, i.e., Executive and Legislature of
States All local or other authorities within the territory of India
 All local and other authorities under the control of the Government of India
 The term “State” thus includes executive as well as the legislative organs of the
Union and States. It is, therefore, the actions of these bodies that can be
challenged before the courts as violating fundamental rights.
 In the context of Article 12, the word “authority” means the power to make laws,
orders, regulations, byelaws, notification, etc. which have the force of law and power
to enforce those laws.

THE TERM LOCAL AUTHORITY INCLUDES

 The word “Local authority” includes authorities like Municipalities, District Boards,
Panchayats, Improvement Trust and Mining Settlement Boards.
The Court laid down the following tests for determining whether a body is an
agency or instrumentality of the Government: – (RD Shetty case)
1. Financial resources of the State are the chief funding source, i.e., the entire share
capital of the corporation is held by Government
2. Existence of deep and pervasive State control
3. Functional character being governmental in essence, i.e., the functions of the
corporation are of public importance and closely related to governmental functions.
4. A department of Government is transferred to a corporation.

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Whether the corporation enjoys monopoly status which is State conferred, or State
protected.
However, the Court held these tests not conclusive but illustrative only and would
have to be used with care and caution.
The term Authorities under the control of the Government of India means:
It brings into the definition of the State all areas outside Indian Territory, but which are
under or may come under the control of the Government of India, such as, mandated or
trust territories.
Such a territory may come under India’s control by international agreement. Thus, even
such areas will be subject to Part III and the inhabitants of such areas may also claim the
benefit of Fundamental Rights guaranteed in Part III.
Board of Cricket for Control in India Case –
The court said BCCI was not fulfilling the parameters of State as defined in RD Shetty
case.

JUDICIARY IS INCLUDED IN THE WORD “STATE“:

The Supreme Court in A.R. Antulay vs R.S. Nayak, in a seven-judge Bench decision
held that The Court cannot pass an order or issue a direction which would be
violative of fundamental rights of citizens. Thus, it can be said that the expression
“State” as defined in Article 12 of the Constitution includes the judiciary also. But
not for judicial functions, and only for administrative purposes.

3. ARTICLE 13
Article 13 provides teeth to the fundamental rights. It makes the rights justiciable,
i.e., enforceable in the Courts. It declares all laws inconsistent with or abridge or
violate the fundamental rights. Article 13 thus, deals with the impact of
Fundamental Rights on State action.
The main object of Article 13 is to secure the paramountcy of the Constitution
especially about fundamental rights. “Article 13”, in fact, provides for the judicial
review of all laws, whether past or future.
It is said to be the Charter for judicial review. This power is exercisable by the
Supreme Court as well as by the High Courts under Articles 32 and 226,
respectively. The Courts can declare a law unconstitutional if it is inconsistent with
the rights conferred by Part III of the Constitution.
This power of judicial review over legislative action has been declared to be an
integral and essential feature, constituting part of the basic structure of the
Constitution.
 Clause (1) declares that all laws in force in the territory of India immediately before
the commencement of this Constitution shall be void to the extent to which they are
inconsistent with the provisions of part III of the Constitution.
 Clause (2) of this article provides that the State shall not make any law which takes
away or abridges the fundamental rights conferred by Part III of the Constitution and
any law made in contravention of fundamental rights, shall to the extent of
contravention, be void.
 Thus, it expressly provides for ‘judicial review’ of all the legislations in India, past as
well as future. This Power has been conferred on the Supreme Court (Art 32) and the
high courts (Art 226) that can declare a law unconstitutional and invalid on the ground
of any of the Fundamental Rights.

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 Clause (3) of this article gives the term ‘law’ a very broad connotation which includes-
 Permanent laws enacted by the Parliament or the State legislatures.
 Temporary laws like ordinances issued by the President or the State Governors
 Statutory instruments in the nature of delegated legislation (executive legislation) like
order, byelaws, rules, regulation or notification; and
 Non-legislative sources of the law, that is, custom or usage having the force of law.
Thus, not only legislation but any of the above can be challenged in the courts as
violating a Fundamental Right and hence, can be declared as void.
 Clause (4) of this article says that nothing in this law shall apply to any amendment of
this constitution made under Article 368.
Analysis: Clauses (1) and (2) of Article 13 thus declare that laws inconsistent w or
in contravention of the fundamental rights, shall be void to the extent of
inconsistency or contravention, as the case may be. It means that, where only a
part of the law is inconsistent with contravenes the fundamental right; it is only
that part which shall be w under Article 13 and not the whole of the law. The Courts
apply the doctrine of severability or separability to separate the valid portion of
the law from the invalid portion.
The Doctrine of severability was discussed at length in the case of R.M.D.C v. the State
of Bombay, and the court laid down the following principles.
 In order to find out whether the valid part of the statute can be separated from the
invalid part, the intention of the legislature is the determining factor.
 In case the valid and non-valid parts of a particular statute are inseparable then it will
invariably result in the invalidity of the entire statute.
 When the statute stands independently after the invalid portion is struck out then it
will be upheld, notwithstanding that the rest of the Statute has become
unenforceable.
 In cases where the valid and invalid parts are separable but both of them were
intended to be part of the same scheme, then the whole scheme will be invalid.
 There may be instances where the valid and invalid parts are separable and not part
of the same scheme, however, invalidating the valid part leaves the rest too thin and
truncated, then also it will be invalidated as a whole.
Severability is to be determined by reading the statute as a whole and not specific
provisions or parts.
To find the legislative intent behind a statute, it will be legitimate to take into account the
history, object, title and preamble.
In Keshavan Madhava Menon vs State of Bombay, the court held, a law in force before
the commencement of the Constitution if inconsistent with a fundamental right,
did not become void “in toto or for all purposes or for all times or for all persons.
Such law became void only to the extent of its inconsistency with the fundamental
right.
It followed that the existing law, because of its inconsistency with a fundamental
right, was not completely obliterated or wiped out altogether from the Statute
Book. The only effect is that the law got into a dormant or moribund state or that
it was shadowed by the fundamental right it violated, or that it was so eclipsed.

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DEFINITION OF THE TERM LAW AND LAW IN FORCE UNDER ARTICLE

13 (3)
Indian Young Lawyers Association vs The State of Kerala: The NarasuAppa Mali
judgment was overruled by Justice Chandrachud in this case. In this case, the
custom of not allowing women into the Sabarimala temple was challenged before
the Apex Court and the question arose whether customs come within the ambit of
Article 13.
Constitutional amendment a ‘law’ under Article 13(2):
This question was for the first time considered by the Supreme Court in Shankari
Prasad vs Union of India.
 The Court held that the word ‘law’ on Article 13 must be taken to include rules or
regulations made in exercise of ordinary legislative power and not amendments to
the Constitution made under Article 368.
 Thus, Article 13(2) did not affect amendments made under Article 368.
 The Court maintained its stance in Sajjan Singh vs State of Rajasthan, 1965.

4. ARTICLE 14
It says that ‘the State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India’. It uses two expressions
“equality before the law” and “equal protection of the law”. It confers rights on all
persons whether citizens or foreigners.

EQUALITY BEFORE LAW AND ABSOLUTE EQUALITY

The concept of equality does not mean absolute equality among human beings
which is physically not possible to achieve.
It is a concept implying absence of any special privilege by reason of birth, creed
or the like in favour of any individual, and also the equal subject of all individuals
and classes to the ordinary law of the land.

EQUALITY BEFORE LAW

It is of British origin and a negative concept which states that the law should be
equal and should be equally administered and that the like should be treated alike.
It connotes:
 The absence of any special privileges in favour of any person
 The equal subjection of all persons to the ordinary law of the land administered by
ordinary law courts.

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 No person (whether rich or poor, high or low, official or non-official) is above the law

RULE OF LAW
The concept of ‘equality before law’ is an element of the concept of ‘Rule of law’.
This concept was given by Prof Dicey in England. It guarantees equality before the
law. It requires that no person shall be subjected to harsh, uncivilised or
discriminatory treatment. His concept has three elements or aspects:

ABSENCE OF ARBITRARY POWER OR SUPREMACY OF LAW

 It means the absolute supremacy of law as opposed to the arbitrary power of the
Government. It means that no man can be punished except for a breach of law.

EQUALITY BEFORE THE LAW

 It means equal subjection of all citizens (rich or poor, high or low, official or non-
official) to the ordinary law of the land administered by the ordinary law courts.

PRIMACY OF RIGHTS OF THE INDIVIDUAL

 It means that the Constitution is the result of the rights of the individual as defined
and enforced by the courts of law rather than the constitution being the source of the
individual rights.
In the Indian System, only the first two elements are applicable and not the third
one. In the Indian System, the constitution is the source of individual rights. In
Bachhan Singh v. State of Punjab, it was held that the Rule of Law has three basic
and fundamental assumptions. They are:
 Law making must be essentially in the hands of a democratically elected legislature.
 Even in the hands of the democratically elected legislature, there should not be
unfettered legislative power; and
 There must be an independent judiciary to protect the citizens against excesses of
executive and legislative power.

EQUAL PROTECTION OF THE LAWS

 It is the positive concept of equality, taken from the American Constitution. It
connotes:
 The equality of treatment under equal circumstances, both in the privileges
conferred and liabilities imposed by the laws.
 The similar application of the same laws to all persons who are similarly situated.
 The like should be treated alike without any discrimination.

Equality before Law Equal Protection of Law

British origin Borrowed from American Constitution

It declares that no one (rich, poor, It states that similar people should be treated
high, or low) is above the law equally.

There are no special privileges Equality of treatment under the same

granted to anyone conditions (both in terms of privileges
granted and obligations imposed by the laws).
As a result, it indicates that the government
can take affirmative action (reservation) in
favour of society’s weaker members.

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All people are subject to the ordinary The same laws are applied in the same way to
law of the nation, which is all people who are in the same situation.
administered by ordinary law courts

It is a negative concept since it It’s a beneficial concept because it makes the

prohibits the state from state responsible for preventing rights
discriminating against individuals violations
arbitrarily.

PROTECTION OF ARTICLE 14 EXTENDS TO CITIZENS AND NON-

CITIZENS BOTH
 The word ‘any person’ in Article 14 of the Constitution denotes that the guarantee of
the equal protection of laws is available to any person which includes any company or
association or body of individuals. The protection of Article 14 extends to both citizens
and non-citizens and to natural as well as legal persons.

EXCEPTIONS TO RULE OF LAW

 First, ‘equality before the law’ does not mean that the “powers of the private citizens
are the same as the powers of the public officials”.
 For example, a police officer has the power to arrest while, as a general rule, no private
person has this power.
 Secondly, the rule of law does not prevent certain classes of persons being subjected
to special rules.
 For example, members of the armed forces are controlled by military laws, while
medical probationers are subjected to the regulations framed by the Medical Council
of India.
 Thirdly, ministers and other executive bodies are given very wide discretionary
powers of the statutes.
 For example, a minister may be allowed by law ‘to act as he thinks fit’ or ‘if he is
satisfied’.
 Fourthly, certain members of society are governed by special rules in their
professions, i.e., lawyers, doctors, nurses, members of armed forces and police. Such
classes of people are treated differently from ordinary citizens.

EXCEPTIONS TO EQUALITY
The rule of equality before law is not absolute and there are constitutional and
other exceptions to it. These are as follows:
 The scope of right to equality under Article 14 has been considerably restricted by the
42nd Amendment Act, 1976. The new Article 31-C added by the Amendment Act
provides that laws made by the State for implementing the Directive Principles
contained in clause (b) or clause (c) of Article 39 cannot be challenged on the ground
that they are violative of Article 14. Such laws will, thus, be an exception to Article 14
of the Constitution. In Sanjeev Coke Mfg. Co. vs Bharat Coking Coal Ltd., the SC held
that “where Article 31-C comes in, Article 14 goes out.”
 The President of India and the Governor of States enjoy the following immunities
(Article 361):
 The President or the Governor is not answerable to the Court for the exercise and
performance of the powers and duties of his office.
 No criminal proceedings shall be initiated or continued against the President or the
Governor in any court during his term of office.

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 No process for the arrest or imprisonment of the President or the Governor shall be
issued from any court during his term of office.
 No civil proceedings against the President or the Governor shall be instituted during
his term of office in respect of any act done by him in his personal capacity, whether
before or after he entered upon his office, until the expiration of two months next
after notice has been delivered to him.
 No person shall be liable to any civil or criminal proceedings in any court in respect of
the publication in a newspaper (or by radio or television) of a substantially true report
of any proceedings of either House of Parliament or either House of the Legislature
of a State (Article 361-A)
 No member of Parliament shall be liable to any proceedings in any court in respect of
anything said or any vote given by him in Parliament or any committee thereof. (Article
105)
 No member of the legislature of a State shall be liable to any proceedings in any court
in respect of anything said or any vote given by him in the Legislature or any
committee thereof. (Article 194)
The Foreign Sovereigns (rulers), ambassadors and diplomats enjoy immunity from
criminal and civil proceedings.
The UNO and its agencies enjoy diplomatic immunity.
Article 359(1) provides that where a proclamation of emergency is in operation the
President may, by order, declare that the right to move any court for the enforcement of
such rights conferred by Part III (except Articles 20 and 21) shall remain suspended. Thus,
if the President of India issues an order, where a Proclamation of Emergency is in
operation, enforcement of Article 14 may be suspended for the period during which the
Proclamation is in force.

ARTICLE 14 PERMITS CLASSIFICATION BUT PROHIBITS CLASS LEGISLATION

Article 14 permits Reasonable Classification and not Class Legislation.
Class Legislation means making improper discrimination by conferring certain privileges
upon a class of persons arbitrarily selected from a huge number of people.
 Thus, Class legislation violates equal protection whereas, Reasonable Classification is
always based on real and substantial distinction.
Thus, what Article 14 forbids is class-legislation, but it does not forbid reasonable
classification. Article 14 applies where equals are treated differently without any
reasonable basis. But where equals and unequal are treated differently, Article 14 does
not apply.

TEST OF REASONABLE CLASSIFICATION

While Article 14 forbids class legislation, it does not forbid reasonable classification
of persons, objects and transactions by the legislature for the purpose of achieving
specific ends. But classification must not be “arbitrary, artificial or evasive”. It
must always rest upon some real and substantial distinction bearing a just and
reasonable relation to the object sought to be achieved by the legislature. In the
case of State of West Bengal v. Anwar Ali Sarkar, the Supreme Court of India, stated
the twin test for reasonable classification. The court held that for the classification
to pass the test, two conditions must be fulfilled:
1. Classification must be founded on an intelligible differentia which distinguishes those
that are grouped together from others and
2. The differentia must have a rational relation to the object sought to be achieved by
the Act.

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The differentia which is the basis of classification and the object of the act are two
distinct things. What is necessary is that there must be a nexus between the basis
of classification and the object of the Act which makes the classification.

CASE LAWS
In Devika Biswas vs Union of India, 2016, the SC held that- In family planning and
sterilisation, it is necessary that the policies and incentive schemes are made
gender neutral and the necessary focus on female sterilisation is discontinued.
In K.A. Abbas vs Union of India, the validity of Cinematograph Act, 1952 was
challenged on the ground that it made unreasonable classification. The Court held
that- The treatment of motion pictures must be different from that of other forms
of art and expression due to its versatility, realism and its coordination of the
visual and real senses. The motion picture is able to stir up emotions more deeply
than any other product of art. Therefore, the classification of films into two
categories of ‘U’ films and ‘A’ films is a reasonable classification.
Doctrine of Legitimate Expectation
Legitimate Expectation means that a person may have a reasonable expectation
of being treated in a certain way by administrative authorities owing to some
consistent practice in the past or an express promise made by the concerned
authority. According to this doctrine, a public authority can be made accountable
in lieu of a legitimate expectation. Thus, the doctrine of Legitimate Expectation
pertains to the relationship between an individual and a public authority.
Legitimate Expectation may arise:
1. if there is an express promise given by a public authority; or
2. because of the existence of a regular practice which the claimant can reasonably
expect to continue.
3. such an expectation must be reasonable.
In Vishaka vs State of Rajasthan, the Supreme Court laid down exhaustive guidelines
to prevent sexual harassment of working women in places of their work until the
enactment of a legislation for this purpose. The court observed that the
fundamental rights under Article 14(2), 19(3)(1)(g) and 21(4) of the Constitution of
India that every profession, trade or occupation should provide a safe working
environment to the employees.
In Javed vs State of Haryana, validity of Section 175(1)(g) of the Haryana Panchayati
Raj Act, 1994 on the ground that it was violative of Article 14 of the Constitution.
Section 175(1)(g) disqualified a person having more than two children from
contesting elections for Sarpanch or Panch in Gram Panchayats but did not apply
to offices in other institutions of Local Self Governance or in State legislature or in
Parliament. The SC held that the provision is not discriminatory, and the
classification made by it is based on intelligible differentia having nexus with the
object of popularisation of family planning programme.

GEOGRAPHICAL APPLICATION OF THE LAW

The words “within the territory” used in Article 14 do not mean that there must be
a uniform law throughout the country. A law may be applicable to one State and
not to another. A State may be divided into several geographical regions and a law
may be applicable to one and not to others depending on commitments.
In Krishna Singh vs State of Rajasthan, the validity of Marwar Land Revenue Act,
1949, was challenged on the ground that it applied only to the Marwar portion of
the State of Rajasthan and not to the whole of the State. The Supreme Court held

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the law not to be violative of Article 14 as the particular conditions of Marwar

portion of the State required a special law to be applied there.

5. ARTICLE 15
CLAUSE (1)
The State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them.
The word ‘discrimination’ means to make an adverse distinction or to distinguish
unfavourable from others. For example, In Nainsukhdas vs State of U.P. a law which
provided for elections on the basis of separate electorates for members of
different religious communities was held to be unconstitutional.
The word ‘only’ used in Article 15(1) indicates that discrimination cannot be made
merely on the grounds that one belongs to a particular caste, sex, etc. It follows
from this that discrimination on grounds other than religion, race, caste, sex or
place of birth is not prohibited. It means that discrimination based on any of these
grounds and also on other grounds is not hit by Article 15(1). In D.P. Joshi vs State of
M.B., a rule of the State Medical College requiring a capitation fee from non-
Madhya Bharat Students for admission in the college was held valid as the ground
of exemption was residence and not place of birth.

INTER-RELATION OF ARTICLES 14 AND 15

Articles 14 & 15 are all different facets of the concept of equality. These Articles
guarantee equality of opportunity and of treatment to all the citizens in different
forms, while specifically mandating that the State shall not discriminate against the
citizens only on the grounds of religion, race, etc.However, while prohibiting
discrimination against citizens, neither of these Articles, prohibit reasonable
classification, an essential content of equality.
Thus, as in Article 14, as well in Article 15(1), if it is demonstrated that special treatment
is meted out to a class of citizens, not only on the ground of religion, etc., but due to
some special reasons and circumstances, the enquiry would be “does such a
classification stand the test of reasonableness.”
So, Gujarat High Court in Adam Chaki v. Government of India, upheld the pre-matric
Scholarship Scheme, made by the Government for students of minority community as
not violative of Article 15. The Scheme involved grant of scholarship to class of citizens
found to be socially, educationally, and economically disadvantaged on account of
their minority status.
The Court said that even if constitutionality of the Scheme could not be upheld on the
anvil of Article 15(4), the same satisfied the test of reasonable classification.

CLAUSE (2)
It is a specific application of the general prohibition contained in Clause (1). It says
that no citizen shall be subjected to any disability, liability, restriction, or condition
on grounds only of religion, race, caste, sex, or place of birth with regard to
Access to shops, public restaurants, hotels, and places of public entertainment; and
The use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly by State funds or dedicated to the use of the public.
While clause (1) of Article 15 prohibits discrimination by the State but clause (2)
prohibits both the State and private individuals from making any discrimination.

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There are three exceptions to this general rule of non-discrimination which are
discussed in the upcoming clauses.

CLAUSE (3)
It says, ‘Nothing in this article shall prevent the State from making any special
provision for women and children’. For example, women workers can be given
special maternity relief and free education for children.
In Joseph Shine vs Union of India, 2018 case, the Supreme Court in a five Judge Bench
held Section 497 of I.P.C. penalising the adultery violative of Articles 14, 15(1) and
21 of the Constitution of India and not a beneficial legislation covered by Article
15(3) of the Constitution. Adultery can be grounds for civil issues including
dissolution of marriage, but it cannot be a criminal offence. The Bench had also
held that Section 198 (2) of the CrPC, which gave the cuckolded husband the
exclusive right to prosecute his wife’s lover, was manifestly Section 198 (2) of the
CrPC arbitrary.

CLAUSE (4)
It says that ‘Nothing in this article or clause (2) of article 29 shall prevent the State
from making any special provision for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes and the
Scheduled Tribes. Article 15(4) is another exception to clauses (1), (2) of Article 15,
which was inserted by the constitution (First Amendment) Act, 1951, due to the
decision in State of Madras vs Champakam Dorairajan, 1951.
Article 15(4) an enabling provision
In M.R. Balaji vs State of Mysore, 1963 the Supreme Court held that the provisions
made in clause (4) of Article 15 is only an enabling provision and does not impose
any obligation on the State to take any special action under it. It merely confers a
discretion to act if necessary, by way of making special provision for backward
classes.

ARTICLE 15(4) AND RESERVATION

In Gulson Prakash vs State of Haryana, 2010, the Supreme Court held that a writ
cannot be issued to the State to make reservation. The principle behind Article
15(4) is that a preferential treatment can be given validly where socially, and
educationally backward classes need it. It is not an exception but only makes a
special application of the principle of reasonable classification. The class
contemplated under the clause must be both socially and educationally backward.
Thus, under clause (4) of Article 15, two things are to be determined:
 Socially and educationally backward classes.
 The limit of reservation
 Determining Socially and Educationally Backward class:
 P Rajendran vs State of Madras: Backwardness based on Caste solely.
 KC Vasanth Kumar vs State of Karnataka: Both caste and Poverty is a relevant
criterion in determining the backwardness of citizens. Occupations and place of
habitation may be counted.
 Indira Sawhney vs UOI: Caste can be important and sole factor in determining the
backwardness.
 National legal service authority vs UOI: In case of Jat Reservation, The Division Bench
of the Court strongly advised the Government to gradually discard “the caste-centric

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definition of backward” and evolve new practices, methods and yardsticks to discover
and address emerging forms of backwardness.

DEFINE THE LIMIT OF RESERVATION

Indra Sawhney vs Union of India
 Barring the extraordinary circumstances, the maximum limit can’t be more than 50%.
 The classification of Backward Classes into “Backward” and More Backward” not only
permissible but essential. The Court while discharging explained that the object of the
special provision contained in the Constitution was not to uplift a few individuals and
families in the Backward
 Classes, but to ensure the advancement of the Backward Classes as a whole. In this
respect, Balaji decision” stands overruled.
Later, the Apex Court in A.P.B.C. Sangh v. J.S.V. Federation, held the amalgamation
of extremely Backward Classes and Backward into one group as tantamount to
treating categories unequal as equals and hence violative of Article 14.

CLAUSE (5)
(1) The Constitution (93rd Amendment) Act, 2005, inserted clause (5) in Article 15
with effect from 2006 to nullify the effect of the judgments of the Supreme Court
on the point of admission in educational institutions. It provides that, “ Nothing in
this Article or in sub-clause (g) of clause
(2) of Article 19 shall prevent the State from making any special provision, by law,
for the advancement of any socially and educationally backward classes of citizens
or for the Scheduled Castes or the Scheduled Tribes in so far as such provisions
relate to their admission to educational institutions including private educational
institutions, whether aided or unaided by the State, other than the minority
educational institutions referred to in clause (1) of Article 30”.
Pramati Educational and Cultural Trust vs Union of India
This case deals with the constitutional validity of clause (5) of Article 15. The
Supreme Court held that None of the rights under Articles 14, 19(1)(g) and 21 of the
Constitution had been abrogated by Clause (5) of Article 15 of the Constitution and
the view taken by Bhandari, J. in Ashok Kumar Thakur v. Union of India that the
imposition of reservation on unaided institutions by the Ninety third Amendment
has abrogated Article 19(1)(g), a basic feature of the Constitution is not correct.
Instead, the Court held that the (Ninety-third Amendment) Act, 2005 of the
Constitution inserting Clause (5) of Article 15 of the Constitution was valid.

CLAUSE (6)
The Constitution (One Hundred and third Amendment) Act, 2019 has inserted
clause (6) in Article 15 which is as follows: Nothing in this article or sub-clause (g)
of clause (1) of Article 19 or clause (2) of Article 29 shall prevent the State from
making:
 Any special provision for the advancement of any economically weaker sections of
citizens other than the class mentioned in clauses (4) and (5); and
 Any special provision for the advancement of any economically weaker sections of
citizens other than the classes mentioned in clause (4) and (5) in so far as such special
provisions relate to their admission to educational institutions including private
educational institutions including private educational institutions, whether aided or
unaided by the State, other than the minority educational institutions referred to in
clause (1) of Article 30, which in the case of reservation would be in addition to the

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existing reservations and subject to a maximum of ten percent of the total seats in
each category.
Note: For the purposes of this article and Article 16, “economically weaker
sections” shall be such as may be notified by the State from time to time on the
basis of family income and other indicators of economic disadvantage.

6. ARTICLE 16
EQUALITY OF OPPORTUNITY IN PUBLIC EMPLOYMENT

CLAUSE (1)
It guarantees equality of opportunity for all citizens in matters of ‘employment’ or
‘appointment’ to any post under the State.

CLAUSE (2)
It provides that no citizen, on grounds only of religion, race, caste, sex, descent,
place of birth, residence or any of them, be ineligible for or discriminated against
in respect of, any employment or office under the State.
Clauses (1) and (2) of Article 16 lay down the general rule of opportunity or
appointment under the State and that no citizen can be discriminated against or
be ineligible for any employment or office under the State on grounds only of
religion, race, caste, sex, descent, place of birth or residence.
These two clauses apply only in respect of employment or office under the State.
Clauses (3), (4), (4-A), (5) and (6) of Article 16 are exceptions to this general rule of
equality of opportunity.

CLAUSE (3)
It provides that “Nothing in this article shall prevent Parliament from making any
law prescribing, in regard to a class or classes of employment or appointment to
an office under the Government of, or any local or other authority within, a State
or Union territory, any requirement as to residence within that State or Union
territory prior to such employment or appointment.”

CLAUSE (4)
It enables the State to make provision for reservation of posts in government jobs
in favour of any backward class of citizens which, in the opinion of the State, is not
adequately represented in the services under the State.
The expression Backward class of citizens means only SC and ST.
Article 16(4) is an enabling provision, enacted to secure egalitarian equality.
Reservation for a backward class is not a mandate. It has been held to be a
prerogative of the State. It confers a discretionary power on the State to make
reservation of appointments in favour of backward classes of citizens not
adequately represented in the services of the State either numerically, or
qualitatively. It confers no right on citizens to claim reservation. Article 16(4) has
been held not mandatory.
How reservation is to be made, is a matter of policy.
Scope of Article 16 (4)
Reservation should be for entry level in job or in the matter of Promotion.
In Indra Sawhney case, the court ruled after taking into consideration all the
circumstances, that Article 16 (4) did not contemplate or permit reservation in

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promotions. Parliament enacted the 77th amendment act inserting Article 16(4A),
thereby enabling the government to make laws providing quota in promotion for
SCs and STs.
1. Rules of Promotion: Concept of Catch-up Rule was first introduced in the Union of
India Vs. Virpal Singh (1995) and Ajit Singh Vs. State of Punjab (1996). It was upheld that
the senior general candidates, who were promoted after SC/ST candidates, would
regain their seniority over general candidates who were promoted earlier. The
Parliament later repealed the Catch-up Rule in the 85th & 117th Amendment that
introduced the principle of Constitutional Seniority. The Catch-up Rule was found to
be biased as for the interest of the reserved category. Therefore, the Constitution of
India had given the power to each State to reserve certain posts for the granting
promotion to the SCs/STs who have not been adequately represented in the
government services.
Consequential seniority:
 Let us assume that A, belonging to the General Category, currently holds Level 3 of a
government post.
 B, appointed under the Scheduled Caste quota, is junior to A in Level 3.
 When promotions to Level 4 are to be decided, let us assume further, that due to
reservations in promotions B has to be promoted to Level 4 before A because there
are no Scheduled Caste candidates at a seniority similar to that of A.
 The question that then arose was whether A would regain seniority over B when she
is promoted to Level 4 in due course.
 ‘Consequential Seniority’ means that A will not regain her seniority and B will now be
considered senior to A within Level 4
M. Nagaraj vs Union of India (2006), where a five-judge bench approved Parliament’s
decision to extend reservations for SCs and STs to include promotions with three
conditions.
It required the government to:
 Provide proof for the backwardness of the class benefitting from the reservation.
 Provide for its inadequate representation in the position/service for which reservation
in promotion is to be granted.
 To show how reservations in promotions would further administrative efficiency.
Issues after Nagraj Case:
 Whether the Nagraj Judgement needed reconsideration by a seven-judge bench.
 The second issue questioned whether the States had to collect quantifiable data to
prove the backwardness and inadequacy of the class while being promoted.
 The third issue was whether the creamy layer among the scheduled castes and the
scheduled tribes should be barred from obtaining promotions through the
reservation.

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Jarnail Singh Vs Lachhmi Narain Gupta case (2018):

Nagraj Judgement was challenged in 5 judge bench in Jarnail Singh case.
The provision that the State must collect quantifiable data showing backwardness of the
Scheduled Castes and the Scheduled Tribes is contrary to the nine-Judge Bench in Indra
Sawhney case making this provision invalid.
It was also seen in the Indra Sawhney Case that any discussion on the ‘creamy layer’ has
no relevance in the context of Scheduled castes and Scheduled tribes.
The Court held that socially, educationally, and economically advanced cream of
Scheduled Castes/Scheduled Tribes communities must be excluded from the benefits of
reservation in government services to transfer quota benefits to the weakest of the
weaker individuals. The court viewed the principle of the creamy layer as a principle of
identification and not of equality.
B K Pavitra case (2019)
Karnataka Government has extended consequential seniority to persons
belonging to SC/ST. SC in this case has upheld the validity of extension of
consequential seniority to person of SC/ST Community but rejected the pleas
seeking exclusion of creamy layer among the communities. The Supreme Court
had investigated the 3 elements to apply the policy of reservation in promotion
and put forward the following:
Regarding Backwardness: It was held that the creamy layer test could be applied at the
stage of reservation in promotion. Therefore, for Consequential Seniority, it cannot be
applied.
Regarding Inadequate Representation: The court had accepted the inadequate
representation claim and stated that SCs/STs are inadequately represented in the State
Government Services in Grade A, B, and C. In contrast, they are adequately represented
in Grade D. The Court had further upheld the Reservation Act 2018 and allowed
reservations up to 15% and 3% for SCs/STs, respectively.
Regarding Administrative Efficiency: The Supreme Court had accepted the claim that
Karnataka Government had given high performance in various sectors though it had a
reservation in public sector jobs. The court further stated that ‘administrative efficiency’
would mean ‘equal representation,’ and it criticized the merit-based approach to
maintain administrative efficiency.
2. Reservation should have carried Forward Rule or not.
 Carry Forward Rule states that if reserved seats for a post are not filled by candidates
belonging to reserved categories in a particular round of recruitment (due to a lack of
eligible candidates), then those seats are carried forward to the next round of
recruitment.
 Indira Sawhney Case: ‘Carry Forward Rule’ is valid but it shall not violate the aforesaid
50% cap.
 To nullify the Carry Forward Rule’s 50% cap set by Mandal Case, Constitution (81st
Amendment) Act was passed. It inserted clause (4B) in Article 16, which reads as
follows:
 Nothing in this article shall prevent the State from considering any unfilled vacancies
of a year which are reserved for being filled up in that year in accordance with any
provision for reservation made under clause (4) or clause (4A) as a separate class of
vacancies to be filled up in any succeeding year or years and such class of vacancies
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filled up for determining the ceiling of fifty percent reservation on total number of
vacancies of that year.”
3. Whether there should be creamy layer amongst SC/ST or not.
The five-judges Bench in Nagaraj case although upheld the constitutional validity
of all amendments, but the following two validations by the Supreme Court in this
case became the bone of contention:
1. First: State is not bound to make reservation for SC/ST in the matter of promotions.
However, if they wish to exercise their discretion and make such provision, the State
has to collect quantifiable data showing backwardness of the class and inadequacy of
representation of that class in public employment in addition to compliance of Article
335.
2. Second: It reversed its earlier stance in Mandal case, in which it had excluded the
creamy layer concept on SCs/STs (that was applicable on OBCs). The verdict in Nagaraj
case made clear that even if the State has compelling reasons (as stated above), the State
needs to ensure that its reservation provision does not lead to excessiveness- breaching
the ceiling-limit of 50%, or destroying the creamy layer principle, or extending the
reservation indefinitely. Therefore, the Court extended the creamy layer principle to SCs
and STs too in this verdict.
Centre asked the Court to review its stance on the above two issues: The Court
clarifying its stance in Jarnail Singh vs Lachhmi Narain Gupta case (2018) refused to
refer the above issue to a larger bench.
 However, it invalidated the requirement of collecting quantifiable data by states on
the backwardness of SCs and STs while granting quota in promotions as laid down by
the Court in Nagaraj verdict, but states need to back it with appropriate data showing
the inadequate representation of SCs & STs in the cadre.
 On the creamy layer principle for excluding the well-off amongst the SC/ST
communities from availing the benefit, the Court followed the Nagaraj verdict. The
Court held that socially, educationally, and economically advanced cream of
Scheduled Castes/Scheduled Tribes communities must be excluded from the benefits
of reservation in government services to transfer quota benefits to the weakest of the
weaker individuals and not be snatched away by members of the same class who were
in the “top creamy layer”.
 The Court also observed that it will not be possible to uplift the weaker sections if only
the creamy layer within that class bags all the coveted jobs in the public sector and
perpetuate themselves, leaving the rest of the class as backward as they were.
4. Sub categorisation of OBC.
Mandal commission submitted its report in December 1980 in this report the
commission identified about 3743 castes as socially & educationally backward
classes and recommended for reservation of 27% in Government jobs. Matter went
to 9 judge benches in Indra Sawhney case:
 Uphold reservation for OBC but Introduced creamy layer.
 But now the applicability of reservation has been questioned.
 The policy of reservation was designed as an ad hoc policy for ten years. But it is
continuing and getting extended after the end of every ten years. It is creating some
sort of frustrations among the high caste people evident in Jat, Maratha, Gujjar,
Patidar calls for reservation.
 It has created a “new class of vested interest” in society.

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 Contrary to the principle of equality. Special privileges and extra protection to certain
classes of people is against the policy of equality. It violates the very spirit of
democracy.
 Violating the efficiency and merit system of recruitment.
 Given rise to the politics of casteism in the Indian political system.
Findings of the G Rohini committee report so far
 In 2018, the Commission analysed the data of 3 lakh central job given under OBC
quota over the preceding five years and OBC admissions to colleges over the
preceding three years.
 The findings were: 97% of all jobs and educational seats have gone to just 25% of all
sub-castes classified as OBCs.
 95% of these jobs and seats have gone to 10 OBC communities.
 37% of the total OBC communities—983 OBC communities—have zero representation
in jobs and educational institutions.
 994 OBC sub-castes have a total representation of only 2.68% in recruitment and
admissions.
5. Understanding of Vertical and Horizontal Reservation
Reservation is of two types: Vertical reservation means reservation for SC/ ST/OBC,
and horizontal reservation means equal opportunity to other categories like
women, veterans, transgender community etc.
But this reservation does not mean a separate quota but accommodation of SC
women within SC quota, ST women within ST quota like this.
The Question is if OBC Disabled or women got the number equal to or more than
the general category cut off, whether he will take the seat of General category
quota or from OBC category only.
SC in Three Judge bench: The principle that groups eligible for horizontal
reservation cannot be excluded from the open category seats because they are
from other vertically reserved category communities, like SC or OBC. Women from
all categories are eligible to be considered for the open category or General
Category.
The Court has disapproved the view taken by some High Courts that, at the stage
of accommodating candidates for effecting horizontal reservation, the candidates
from reserved categories can be adjusted only against their own categories under
the concerned vertical reservation and not against the “Open category”.
6. All India quota: The AIQ scheme was introduced in 1986 under the Supreme Court’s
directions to provide for domicile-free merit-based opportunities to students from any
state aspiring to study in a good medical college in another state. The all-India quota
consists of 15 per cent of the total available UG seats and 50 per cent of the total available
PG seats in government medical colleges. Initially, there was no reservation in the AIQ
scheme up to 2007.
 In 2007, the Supreme Court introduced 15 per cent reservation for the Scheduled
Castes (SCs) and a 7.5-per cent quota for the Scheduled Tribes (STs) in the scheme.
 When the Central Educational Institutions (Reservation in Admission) Act became
effective in 2007, providing for a uniform 27 per cent reservation to the Other
Backward Classes (OBCs), the same was implemented in all the central educational
institutions such as the Safdarjung Hospital, the Lady Hardinge Medical College, the
Aligarh Muslim University and the Banaras Hindu University.

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 Accordingly, the number of seats in the medical and dental colleges was increased
over the next two years (2019-20 and 2020-21) to accommodate this additional 10 per
cent EWS reservation so that the total number of seats available for the unreserved
category does not reduce. In the AQI seats, however, this benefit was not extended to
the OBCs and EWS until recently.
 As per the commitment to the OBCs and EWS, the govt announced “27 per cent
reservation for OBCs, 10 per cent reservation for EWS” in AIQ seats for all the
undergraduate/postgraduate medical/dental courses from the current academic year
2021-22.

CLAUSE (5)
Nothing in this article shall affect the operation of any law which provides that the
incumbent of an office in connection with the affairs of any religious or
denominational institution or any member of the governing body thereof shall be
a person professing a particular religion or belonging to a particular denomination.

CLAUSE (6)
The Constitution (One Hundred and Third Amendment) Act, 2019 has inserted
clause (6) in Article 16 to provide ten percent reservation of posts for economically
weaker sections of citizens in addition to the existing reservation in each category.

Restriction on women from permanent commission in army

The Supreme Court in Secretary, Ministry of Defence vs Babita Punia, 2021, provided
equal opportunity to women in Army post and equal treatment with men
counterparts commenting on the stereotype mentally and blanket ban
restrictions on army women services. Justice D.Y Chandrachud and Justice Ajay
Rastogi held that.
1. All serving women officers on SSC shall be considered for the grant of Permanent
Commission.
2. The expression “in various staff appointments only” and “on staff appointments only”
in the 2019 circular shall not be enforced.
3. Short Service Commission women officers who are granted Permanent Commission
in pursuance of the above directions will be entitled to all consequential benefits
including promotion and financial benefits in parity with male counterparts.

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4. Blanket ban restrictions on women seeking criteria or command appointments would

not comport with the guarantee of equality under Article 14. Where the State, and in
this case the Army as an instrumentality of the State, differentiates between women
and men, the burden falls squarely on the Army to justify such differentiation with
reasonability.
5. Upholding the Judgement of Delhi High Court, court-ordered to take necessary steps
for compliance with this judgement shall be taken within three months from the date
of this judgement.

7. ARTICLE 17
ABOLITION OF UNTOUCHABILITY
It states that, “Untouchability” is abolished and its practice in any form is forbidden. The
enforcement of any disability arising out of “Untouchability” shall be an offence
punishable in accordance with the law.
The enforcement of any disability arising out of untouchability is to be an offence
punishable in accordance with law. “Untouchability” is neither defined in the Constitution
nor in any act. Article 17 is a very important part of the Right to Equality. It not only
provides equality but also social justice. This article in a way is like the 13th Amendment
of the American Constitution which banned Slavery in all its forms.
The Mysore High Court has, however, held that the term is not to be understood in its
literal or grammatical sense but to be understood as it had developed historically in this
country. Understood in this sense, it is a product of the Hindu caste system according
to which a particular section amongst the Hindus had been looked down as
untouchables by the other sections of that society.
Article 15(2) also helps in the eradication of untouchability under which no person, on
grounds of religion, race, caste, sex, place of birth or any of them can be denied access
to shops, public restaurants, hotels and places of entertainment or the use of wells,
tanks, bathing ghats, road and places of public resort maintained wholly or partly out
of State funds or dedicated to the use of general public.

CASE LAW
In Safai Karamchari Andolan and Ors. v. Union of India and Ors., a writ under Article
32 was filed by the Petitioners praying for the enforcement of Manual Scavengers’
and Construction of Dry Latrines (Prohibition) Act, 1993 by the Central
Government, State Governments and Union Territories. In this case, the Court
issued various directions:
1. Rehabilitation of all the manual scavengers
2. Giving Scholarships to the children of Manual Scavengers.
3. Giving one-time cash assistance to manual scavengers.
4. One member of their family should be given skill training in livelihood.
5. Other legal assistance as needed for them.
6. Compensation of 10 Lakh rupees for every sewer death.

8. ARTICLE 18
ABOLITION OF TITLES
Clause (1): No title, not being a military or an academic distinction, will be conferred by
the State.

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Clause (2): No citizen of India will accept any title from any of the foreign States.
Clause (3): No person who is not a citizen of India will, while he holds any office of the
profit or trust under the State, except without the consent of the President any title from
any foreign States.
Clause (4): No person holding any office of the profit or trust under the State shall,
without the consent of the President, accept any of the presents, emolument, or the
office of any kind from or under any foreign States.
Clauses (3) and (4) have been added to ensure that a non-citizen should remain loyal to
the State i.e. do not commit the breach of trust reposed in him.

TAKEAWAYS FROM ARTICLE 18

 Article 18 is applicable even to foreigners. A foreigner holding office of profit or trust
under the state cannot accept any title from any foreign state without the consent of
the president.
 Article 18 prohibits only hereditary titles of nobility.
 The British government had created an aristocratic class known as Rai Bahadurs and
Khan Bahadurs in India – these titles were also abolished.
 However, the military and the academic distinctions can be conferred on the citizens
of India. The awards cannot be used by the recipient as a title and do not, accordingly,
come within the constitutional prohibition”.
Hence the Supreme Court upheld the constitutional validity of the National Awards—
Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri.

EXCEPTIONS TO ARTICLE 18
In Balaji Raghavan v. Union of India, 1996, the validity of national awards was challenged
in the Court under Article 18 on the ground of their inconsistency with that Article.
The Supreme Court came to the conclusion that they did not conflict with Article 18
because they did not amount to ‘titles’ within the meaning of this article.
However, SC added that they could not be added as suffixes or prefixes to the names of
the awardee and if so, added they could be forfeited.
In the light of clause (f) of Article 51A, it is necessary that there should be a system of
award and decorations to recognize excellence in the performance of the duties.

9. ARTICLE 19
Article 19 guarantees to every Citizen of India the following six basic, fundamental
freedoms-19(a). Freedom of speech and expression.
19(b).Freedom to assemble peaceably and without arms
19(c). Freedom to form associations or unions or co-operative societies 19(d).
Freedom to move freely throughout the territory of India
19(e). Freedom to reside and settle in any part of the territory of India and
19(g). Freedom to practise any profession, or to carry on any occupation trade or
business

WHO CAN CLAIM FREEDOMS OF ARTICLE 19

 However, in R.C. Cooper vs. Union of India, the Apex Court held that the fundamental
rights of the shareholders as citizens, were not lost when they associated to form a
company. The Court, thus, ruled that if the action of the State impaired the rights of

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the Company, thereby affecting the rights of the shareholders, who were citizens of
India, the protection of Article 19 would be available to them.
 However, the freedoms of Article 19 cannot be claimed by a foreigner.

MEANING OF FREEDOM OF SPEECH AND EXPRESSION:

 The freedom of speech and expression, guaranteed under Article 19(1)(a), means the
right to speak and to express one’s opinions or to air grievances by words of mouth,
writing, printing, pictures or in any other manner.
 The freedom of expression, thus, includes the of the propagation of ideas, their
publication and circulation.
Scope of Article 19 (1):
 Right to know and to obtain information: It has been said that in a Government of
responsibility like ours, it is elementary that citizens ought to know what their
government is doing. They have ‘the right to know every public act, everything that is
done in a public way, by their public functionaries. No democratic government can
survive without accountability and the basic postulate of accountability is that the
people should have information about the functioning of the Government.
 Right to know the antecedents of candidates at Election: To maintain the purity
of elections and in particular to bring transparency in the process of election, the Apex
Court directed the Election Commission of India, to call for, on affidavit, by issuing
necessary order, in exercise of its power under Article 324, from each candidate
seeking election Parliament or a State Legislature, as a necessary part of his
nomination paper, information regarding his assets, educational qualifications and
criminal past, as well as, present criminal record. The apex court in Union of India v.
Association For Democratic Reforms, ruled that voters’ right to know antecedents
including criminal past of his candidate contesting election for M.P. or M.L.A is
fundamental and basic survival of democracy.
 Freedom of Silence-Right not to speak: In Bijoe Emmanuel v. State of Kerala, the
Supreme Court held that no person could be compelled to sing the National Anthem,
“if he has genuine conscientious objections based on his religious belief”. In this case
three children belonging to Jehovah’s Witnesses, were expelled from the school for
refusing to sing the National Anthem during school prayers. They used to stand up
respectfully when the National Anthem was being sung, but did not join in singing it.
The Kerala High Court upheld their expulsion from the school on the ground that it
was their fundamental duty to sing the National Anthem and that they committed an
offence under the Prevention of Insults to National Honours Act, 1971.The Supreme
Court, however, reversed the decision of the High Court and observed that they did
not commit any offence. It was held that the expulsion of the children from that school
was a violation of their fundamental right under Article 19(1)(a) which also included
freedom of silence. It may, thus, be stated that freedom of expression includes the
right not to express.
 Freedom of Press:
 No Pre-censorship of Press
 Right of access to source of information
 Freedom of circulation
 No Indirect attack on Press
 Journalist and their source: The Press Council Act, 1978, provides that it should not
compel a journalist to disclose the source of any news or information published by
the newspaper. However, apex court held that the journalists and publishers had

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greater responsibility towards the society to safeguard public order, decency and
morality. It may, therefore, be understood that if justice demands, scribe may be
compelled to reveal the source of their news, The press, though, one of the pillars of
a democratic society, should exercise its role, with the fullest sense of responsibility.
However, The Hon’ble Supreme Court observed in Union of India v/s Association for
Democratic Reforms, “One-sided information, disinformation, misinformation and
non-information, all equally create an uninformed citizenry which makes
democracy a farce.

WHY FREEDOM OF PRESS COMES UNDER SCANNER?

Handful ownership of Media: As per the reports of Data LEADS and Reporters
Without Borders, only a few people control ownership. Most of the Indian media
houses are owned or controlled by politically affiliated people.
 Hyper commercialization and Price war.
 Media today from news to advertising rely on spectacle, simplification and
exaggeration to grab and hold audiences.
 Steady growth of Pseudo scribes who take to journalism to gain access to power,
position and institutions.
 Sex and Nudity
 Lack of Integrity and Impartiality
Problem of hate speech is compounded when propagated by members of the
press. This appears to be true in case of the attacks on Umar Khalid and perhaps,
even in case of the activists arrested in relation to the Bhima Koregaon incident.
Regulation of Media in India
Press Council of India: The PCI has the power to receive complaints of violation of
the journalistic ethics, or professional misconduct by an editor or journalist.
Central Board of Film Certification: For screening films including short films,
documentaries, television shows and advertisements in theatres or broadcasting via
television the Central Board of Film Certification (CBFC) sanction is required.
Cable Television Network (Regulation) Act, 1995 content code / Advertisement
code is there in India for programmers and advertisements appearing in cable TV
Network. The News Broadcasting Standards Authority (NBSA), of the NBA, is
empowered to warn, admonish, censure, express disapproval and fine the
broadcaster a sum upto Rs. 1 lakh for violation of code.
Need to regulate electronic media
Will bring a level playing field for all kinds of digital players running independent news
digital organizations.
Will provide a kind of credence to digital platforms of all shapes and sizes.
Independent journalism will get recognition not only by the government but various
other arms of the government at state and central level. It will be able to bring some
kind of difference between serious and no serious news provider.
When it comes to social media platforms, it becomes very difficult to regulate the
content as the source is undefined. The news disseminated by the WhatsApp of
Facebook could be cross checked by the digital content of the registered website.
Present law and rule for regulation of Electronic media
Section 69(1) of Information Technology Act, 2000 allowed for intervention of
information in the interest of the country’s sovereignty and integrity, security of the

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state, friendly relations with foreign states, or public order or for preventing
incitement to the commission of any cognizable offence.
Section 79 of IT Act: An intermediary shall not be liable for any third party
information, data, or communication link made available or hosted by him.
Information Technology (Intermediary Guidelines and Digital Media Ethics Code)
Rules, 2021
Obligations of intermediaries: The 2021 Rules require the intermediary to “publish”
rules and regulations, privacy policy and user agreement for access or usage of its
services. The Rules specify restrictions on the types of content that users are allowed
to create, upload, or share.
Appeal mechanism against decisions of grievance officers: The 2021 Rules require
intermediaries to designate a grievance officer to address complaints regarding
violations of the Rules.
Expeditious removal of prohibited content: The 2021 Rules require intermediaries
to acknowledge complaints regarding violation of Rules within 24 hours, and dispose
of complaints within 15 days.
Right to exhibit Films:
Media and film Industry are regarded to be mediums of communications, and both
are deemed to be at the same level of protection as far as fundamental freedoms of
expression and speech are concerned.” However, neither of these mediums is
absolute, and appropriate limitations can be placed. The cinematograph act 1952, was
specifically developed to address this issue in India.

The Act establishes a ‘Central Board of Film Certification’ as a regulating agency in

India, with the authority to grant certifications to film producers.
 In K.A. Abbas v. Union of India, the constitutionality of censorship under the 1952 Act
along with the Rules under it was challenged. But the Supreme Court upheld the
constitutionality within the ambit of Article 19(2) and added that films have to be
treated separately from other forms of art and expression because a motion picture
is ‘able to stir up emotions more deeply than any other product of art’. However, at
the same time it cautioned that it should be ‘in the interests of society’
 Rangarajan vs. P. Jagjivan Ram: In this case, the decision of the Madras High Court
was challenged for revoking the ‘U-Certificate’ issued to a Tamil film called Ore Oru
Gramathile (In One Village). As the film criticized the reservation policy of the Tamil
Nadu Government, it was held that the reaction to the film in Tamil Nadu is bound to
be volatile[24]. But the Supreme Court overturned the High Court decision while
upholding the freedom of speech and expression. In doing so, the Court did
acknowledge to have a compromise between the interest of freedom of expression
and social interests.
Ministry of Information and Broadcasting recently announced the Cinematograph
(Amendment) Bill 2021. Recently The Tandav series was targeted and blamed for
“misrepresenting” Hindu gods and hurting the religious sentiments which further
led to a plethora of FIRs being filed. The present amended bill could be seen as a
direct result of this controversy.

CURRENT PROVISIONS OF THE ACT

Central Board of Film Certification (CBFC) grants certification to films if they meet all of
the criteria mentioned in section 5 A of the act.
CBFC can reject a film if it is against “the interests of the sovereignty and integrity of India,
security of the State, friendly relations with foreign States, public order, decency or

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morality, or involves defamation or contempt of court or is likely to incite the commission

of any offence ( Section 5(B))
Section 5B also empowers the union government to issue directions to the authority who
grants certificates to the films. Using this power, sometimes the central government
gives unreasonable direction. Ex:- Anti social activities should not be shown, dual
meaning words should not be used.
New provisions added in the Bill:
The new provisions include a jail term extending up to three years for piracy, and a fine
of not less than ₹3 lakh.
 The draft amendment bill seeks to vest the union government with revisionary powers
to review a film after it has been given a certificate by the CBFC. (Adding subsection to
section 6 (1)).
 The categories for classification of films would now include U, or universal, U/A 7+ ,
U/A 13+, and U/A 16+, besides an A rating for content restricted to adults. This is in
line with new IT rules 2021.
 The draft bill proposes to insert section 6AA which prohibits unauthorised recording.
According to Section 6AA, “Notwithstanding any law for the time being in force, no
person shall, without the written authorisation of the author, be permitted to us.

CONCERNS
 Government as Super Censor: Revisional powers of Union govt. will effectively make
it supreme power over cinema exhibition in the country
 Freedom of Speech: The encroachment of the central government on creative
independence, in mandating what films can be produced and consumed, potentially
endangering freedom of expression and weakens the scope of a mature democracy.
 Increasing Regulatory role of Govt.: The Cinematograph (Amendment Bill) 2021,
subsequent restrictions on OTT platforms and the abolishment of the FCAT only add
further fuel to the fire.
 Not a broken system: The Central Board of Film Certification (CBFC) has a robust
mechanism for film certification and there is no need to fix something that is not
broken.
 Public Consultation: The government has not provided enough time (only 14 days) for
meaningful consultation and the proposed changes ignore suggestions of reports by
two committees of experts on CBFC reform.
Freedom is not Absolute-Subject to Reasonable Restrictions
It has been realised that in any modern State, freedoms cannot be guaranteed in
absolute terms and cannot be uncontrolled. For, an organised society is a pre-condition
for civil liberties. While, absolute power results in tyranny, absolute freedoms, lead to
ruin and anarchy. Patanjali Shastri, J. in A.K. Gopalan vs State of Madras, observed: Man
as a rational being desires to do many things, but in a civil society his desires have to be
controlled, regulated and reconciled with the exercise of similar desires by other
individuals.
Article 19 (2) of Indian Constitution empowers the State to instil reasonable
restrictions on the following grounds:
Security of the State
 Friendly Relation with Foreign States
 Public Order
 Decency and morality

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 Contempt of court
 Defamation
 Incitement to offence
 Integrity and sovereignty of India
Security of State
In PUCL vs UOI, Petition has been filed by PUCL under Article 32 regarding phone tapping.
The validity of Section 5(2) was challenged in this case. Section 5(2) states the essential
elements which need to be fulfilled for the application of the Section is in the interest of
public safety and any occurrence of public safety. The government has no right to
exercise their power in the said Section if any of these two conditions are not fulfilled.
Telephone tapping is violating Article 19(1) of Indian Constitution, until and unless it
comes under the grounds of restrictions under Article 19 (2).
Communication surveillance in India takes place primarily under two laws:- The
Telegraph Act, (Section 5)1885 and The Information Technology Act, 2000 (Section 69) In
Public Union for Civil Liberties vs Union of India (1996),
Supreme Court pointed out lack of procedural safeguards in the provisions of the
Telegraph Act and The court noted that authorities engaging in interception were not
even maintaining adequate records and logs on interception. The court asked to set up
a review committee that can look into authorisations made under Section 5(2) of the
Telegraph Act.
This has resulted into Rule 419A states that a Secretary to the Government of India in
the Ministry of Home Affairs can pass orders of interception in the case of Centre, and
a secretary-level officer who is in-charge of the Home Department can issue such
directives in the case of a state government.
IT Act 2000:
Section 69 says for interception, monitoring and decryption of digital information “for
the investigation of an offence.
But the challenges are: Ambiguity on issues like type of interception, granularity of
information that can be intercepted and the degree of assistance from service providers
helps in bypassing the law and aids surveillance by the state.
Suggestions:
A rehaul of our surveillance infrastructure must align with the requirements of
proportionality, necessity and legitimacy, laid down by the right to privacy judgement. A
mechanism like in the United Kingdom can be followed which follows a form of
parliamentary oversight through the Intelligence and Security Committee of Parliament
(ISC), which examines the functioning, expenditure and operations of security and
intelligence agencies.
It is also essential to define which agencies have surveillance powers and lay down
robust and clear definitions for key concepts in this sphere. These include key terms
such as public safety, national security, public order and “public good”.

SOVEREIGNTY AND INTEGRITY OF INDIA

This ground was added to Article 19 (2) by the Constitution (16th Amendment) Act,
1963, as it is the foremost duty to maintain the sovereignty and integrity of India.
This imposes a restriction on freedom of speech and expression and does not
permit anyone to challenge the sovereignty of India. It restricts everyone from
saying something causing threat to the integrity of India.

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FRIENDLY RELATIONS WITH FOREIGN STATES

A state can impose a restriction on freedom of speech and expression if it
affects the friendly relations with other States. It was added to the constitution
of India by the 1st amendment act 1951. It is to be noted that no other
constitution in the world has a similar provision in it.

PUBLIC ORDER
 Constitution (1st Amendment), Act, 1951 also added this ground to the constitution.
This ground was added by the Constitution (First Amendment) Act, 1951, as a sequel
to Romesh Thaper case,” wherein the Apex Court rejected the contention that public
order was covered by the expression Security of State. The Court held that the concept
of “public order” was wider than “security of the State”.
 The test for determining whether an act affects law and order or public order is to see
whether the act leads to the disturbance of the current life of the community, or
whether the act affects merely an individual, the tranquillity of the society being
undisturbed Public order implies absence of violence and an orderly state of affairs in
which citizens can peacefully pursue their normal avocation of life.” It thus includes
public safety. Public safety means the safety of the community the external and
internal dangers. Thus, creating internal disorder or rebellion would affect public
order and public safety. However, mere criticism of the Government or its policy does
not, necessarily, disturb public order

DECENCY AND MORALITY

The words decency and morality are defined in section 292-294 of IPC.. It empowers
the government to put certain restrictions on freedom of speech and expression
under this. These sections of IPC restrict the distribution or sale of obscene books
etc. in public.
Shreya Singhal case:
 Section 66 A gave the government power to arrest and imprison an individual for
allegedly “offensive and menacing” online posts, and was passed without discussion
in Parliament.
 Section 66A empowered police to make arrests, on the subject whatever they could
construe as “offensive” or “menacing” or for the purposes of causing annoyance,
inconvenience, etc. It prescribed the punishment for sending messages through a
computer or any other communication device like a mobile phone or a tablet, and a
conviction could fetch a maximum of three years in jail.
Supreme Court: Every term employed has a hazy connotation, the court ruled. What
might offend one person might not offend another. The interpretation was deemed to
be subjective as a result. Because 66A violates the right to freedom of speech and
expression, the court ruled that the justifications do not cover it for reasonable
limitations provided by Article 19. (2). The court ruled that it is constitutionally valid to
prohibit access to material for the general public under Section 69A of the IT Act.
Contempt of court: Right to freedom of speech and expressions don’t allow anyone to
contempt of court. Reasonable restriction can be imposed on freedom of speech and
expression. Contempt of court is defined in section 2 of Contempt of Courts Act, 1971.
It covers both civil contempt and criminal contempt as well.

DEFAMATION
Defamation as the meaning of the word suggests is an injury to the reputation of
a person resulting from a statement which is false. A man’s reputation is treated

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as his property and if any person poses damage to property he is liable under the
law, similarly, a person injuring the reputation of a person is also liable under the
law.
 Defamation is both a criminal (which carries a prison sentence) and a civil offence
(punishable through the award of damages) in India. The IPC codifies the criminal law
on defamation, whereas defamation is penalised as a civil offence under the law of
torts.
 Defamation is defined in Section 499, and the punishment is outlined in section 500.
The offence of defamation is defined as any spoken, written, or visual statement
about another person designed to damage that person’s reputation. The conduct of
any person addressing any public issue or expressing comments on a public
performance an example of exceptions to this rule, as well as any imputation of truth
required for the public benefit.
Essentials of defamation:
 The statement must be defamatory, and the validity of the statement is determined
by how the general public as a whole will perceive the subject of the statement.
 The statement must be about the plaintiff, and it must demonstrate that it is falsely
disparaging them
 That assertion must be made public

WHY IS DEFAMATION A CRIME?

Reputation is an asset to each and every one. Any damage to such asset can be
legally dealt with. Defamation laws have been enacted to prevent person
maliciously using their right to freedom of speech and expression. The Indian law
has rightly not made any distinction between libel and slander. Otherwise there
could have been chances for committing slander and escaping from the laws that
there is no written publication of matter.

WHY DEFAMATION SHOULD REMAIN A CRIMINAL OFFENCE?

Arguments ‘In favor’:
 Anonymity provided by Internet: Since there is no mechanism to censor the Internet
from within, online defamation could only be adequately countered by retaining
defamation as a criminal offence.
 Article 21: Also, criminalization of defamation is part of the state’s “compelling
interest” to protect the right to dignity and good reputation of its citizens.
 Changes have been made from time to time: Sections 499 and 500 have 10 exceptions.
These exceptions clearly exclude from its ambit any speech that is truthful, made in
good faith and/or is for public good.
Arguments ‘Against’:
 Against the global trend: Many countries worldwide are in favour of treating
defamation as a civil wrong, not as a criminal offence. Also, in 2011, the Human Rights
Committee of the International Covenant on Civil and Political Rights called upon
states to abolish criminal defamation, noting that it intimidates citizens and makes
them shy away from exposing wrongdoing.
 Misuse by “Influential”: The misuse of law as an instrument of harassment is also
pervasive in India.
 Often, the prosecutor’s complaint is taken at face value by courts, which send out
routine notices for the appearance of defendants without any preliminary

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examination whether the offending comments or reports come under one of the
exceptions spelt out in Section 499. Thus, the process itself becomes the punishment.
 Criminal defamation has a pernicious effect on society: for instance, the state uses it
as a means to coerce the media and political opponents into adopting self-censorship
and unwarranted self-restraint. The law can also be used by groups or sections
claiming to have been hurt or insulted and abuse the process by initiating multiple
proceedings in different places.
 Public order concerns taken care by other sections: Defamatory acts that may harm
public order are covered by Sections 124, 153 and 153A, and so criminal defamation
does not serve any overarching public interest. Even though Section 499 provides
safeguards by means of exceptions, the threat of criminal prosecution is in itself
unreasonable and excessive.
Incitement to an Offence: This ground was added to Article 19(2) by the Constitution
(First Amendment) Act, 1951. It has been held that “incitement to an offence” did not
refer to “incitement to break a law”. Thus, an incitement to a breach of every civil law
is not necessarily contemplated by Article 19(2). However, the freedom does not
include the right to speak either about the implication or involvement of the accused,
in any crime, particularly, in the sensational crimes, either in the form of opinion/views
or agitations.
Sovereignty and Integrity of India: This ground was added to Article 19(2) by the
Constitution (Sixteenth Amendment) Act, 1963. The purpose is to guard the freedom of
speech and expression from being used to assail the sovereignty and territorial integrity
of the country.
Tests for Restrictions to be Imposed on the Freedoms (Article 19(2) to 19(6)]
“Proportionally test” given in Anuradha Bhasin case:
Facts of the case: The District Magistrate (DM) of Jammu and Kashmir imposed
restrictions under section 144 restricting the public gathering and movement
apprehending breach of peace and tranquillity in the state. Movements of journalists
were restricted and this was challenged under article 19 of Indian Constitution which
guarantees freedom of speech and expression and freedom to carry any trade or
occupation. Also the legality of shutting down the internet connection and restricting
movements in the State of Jammu and Kashmir was challenged in the Hon. Supreme
Court of India under article 32 of the Constitution of India.
Legitimate action: It requires the state to show the Court that the basic aim that the
restriction seeks to achieve is legitimate.
Least restrictive: The state must demonstrate that it has chosen the least restrictive
measure possible to achieve its purported objective.
A rational nexus: The state must establish that there exists a rational nexus between
the limitation imposed and its purported aim.
Technology and doctrine of proportionality
Technology does not have any statutory basis.
Benefits is outweighing the impact or not, cannot be said with certainty.
There should be strong data protection law before implementing this technology.

FREEDOM OF ASSEMBLY [ARTICLE 19 (1)(B) & 19(3)]

Article 19(1)(b) guarantees to all citizens “right to assemble peaceably and without
arms”. Clause (3) of Article 19 powers the State to impose reasonable restrictions
on the right to assemble, in the interests of “the sovereignty and integrity of India”

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or “public order”: The ground “sovereignty and integrity of India” was inserted by
the Constitution (16th Amendment) Act, 1963.
Scope of Right to Assembly:
The “right of assembly” guaranteed by Article 19(1)(b) is a corollary of be right to freedom
of speech and expression guaranteed under Article 19(1)(a), for, the very purpose of
holding an assembly is, to hold consultations, express one’s views, in respect of public
affairs. It educates the public in the formation of opinion on religious, political, economic
or social problems the society.
 The right of assembly thus includes the right to hold public meeting and to take out
processions. It also includes the right to hold demonstrations. Article 19(1)(b) has been
held to cover the right to hold hunger strike, long as it is assured to be peaceful
without arms and not against any individual or group/community.
Reasonable Restrictions on Freedom of Assembly
The right to hold assembly conferred by Article 19(1)(b) is, however, not absolute.
It is subjected to the following limitations:
 The assembly must be peaceful
 It must be unarmed; and
 The State may impose reasonable restrictions under Clause (3) of Article 19 in the
interests of Public Order or Sovereignty and integrity of India.
Freedom to form Association OR Union OR Cooperative Societies [Article 19 (1) &
Article 19 (4)]:
 Sub-clause (c) of Clause (1) of Article 19 guarantees to the citizens of India the freedom
to form associations or unions or cooperative societies”. Article 19(4) provides that the
State may impose reasonable restrictions on the exercise of this freedom in the
interests of “public order”, “morality” or The sovereignty and integrity of India”. The
ground of “the sovereignty and integrity of India” was inserted in Article 19(4) by the
Constitution (Sixteenth Amendment) Act, 1963
 The right to form association may be said to be a corollary of the right to free speech
contained in Article 19(1)(a). This freedom is as essential to democracy as the free
discussion” or the freedom to meet for consultation with others.
Scope:
 An association means “a collection of persons who have joined together for a certain
object, which may be for the benefit of the members or the improvement, welfare or
advantage of the public or some scientific, charitable or similar purpose”. It is a term
of widest connotation.
 Therefore, the right to form associations or unions guaranteed by Article 19(1)(c)
includes the right to form companies, societies, partnership firms, trade unions, clubs.
political parties and the like body of persons.
 The term “form” in Article 19(1)(c) cannot be restricted to only to the extent of
registration of the association/union, but include establishment, administration and
functioning of the same.

 Right to Protest
 The right to protest is protected under Article 19(1)(a), Article 19(1)(b) and Article
19(1)(c), which gives citizens the right to freedom of expression, the right to meet
peacefully without weapons and the right to form associations or trade unions.
These three articles constitute the right of protest on the basis that a protester can
exercise his right to hold a protest against any issue of national or social interest.

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 The right to freedom of expression and expression means that each person has the
right to freely express his or her opinions through a means such as gesture or
mouth, etc. The right to peaceful assembly without weapons, which is to hold public
meetings or to close a procession.
 The right to create associations or trade unions meant the right to form self-
regulatory clubs, professional associations or companies in the field of common
interest.
 Government Response to Protest:
 Accusation of Foreign Infiltration like support of Khalistani groups to the Farmer
Protest. Slapping UAPA, considering Protest as National security concern:-
 UAPA and Fundamental Rights
 It allows a central government to name any individual as Terrorist, and the name
of such person will be included in the Fourth Schedule of the act and that can be
denotified only by a Review Committee constituted by the government itself.
 An official designation as a terrorist will be akin to “civil death” of an individual. Wide
ambit that includes Writer, author, lawyers anyone.
 Non Bailable is against the rule of Bail is a rule and jail is an exception.
 Using water cannons, batons, and tear gas.
 Protesting farmers are dubbed as “Leftist and Maoist” and being “hijacked” by
unknown conspirators.
 Blocking of Internet
 In some States like UK, Bihar, Police watching social media posts for “anti-national”
posts and that passport applications could be denied to anyone who had posted
such content. Barricades and barbed wire and even planted spikes to check the
Protestor movement.
 Supreme Court on Right to Protest
 Ramlila Maidan Incident vs Home Secretary, Union of India (2012): The Supreme Court
had stated that citizens have a fundamental right to assembly and peaceful protest
which cannot be taken away by an arbitrary executive or legislative action.
 Mazdoor Kisan Shakti Sangathan (MKSS) vs Union of India(2018): In this case, SC
upheld the fundamental right to assembly and peaceful protest but ordered it to
be regulated in such a way that they do not cause inconvenience to residents from
Jantar Mantar road or the offices located there.
 Shaheen Bagh Judgement: The court upheld the right to peaceful protest against a
law but made it clear that public ways and public spaces cannot be occupied and
that too indefinitely. The right to protest in a public place should be balanced with
the right of the general public to move freely without hindrance. Fundamental
rights do not live in isolation. The right of the protester has to be balanced with the
right of the commuter and has to co-exist in mutual respect.
 Devangana Kalita vs State) (Natasha Narwal vs State): The bench commented that
 “ the right to protest is not outlawed and cannot be termed as a ‘terrorist act’ within
the meaning of the UAPA”.

FREEDOM OF MOVEMENT [ARTICLES 19(1)(D), 19(1)(E) & 19(5)]

Freedom of Movement (Article 19(1)(d)]: Clause (1) (d) of Article 19 guarantees to
every citizen of India the right to move freely throughout the territory of India.”

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Scope of Article 19(1)(d): The right to move freely throughout the territory of India
means the right of locomotion” which connotes the right to move wherever one
likes, whenever one likes, and however one likes.
Article 19(1)(d) guarantees the right to move freely not merely from one State to
another State, but also from one place to another, within the same State. The right
is not absolute in the sense that Clause 5 of Article 19 enables the State to impose
reasonable restrictions on the freedom on the following grounds-
 in the interest of general public
 For the protection of the interests of any Scheduled Tribe
Recent Observation:
 The provisions for providing the power of externment to the concerned executive
authorities can be found in many statutes such as The Maharashtra Police Act (MP
1951), Punjab Security of State Act 1953, and Assam Maintenance of Public Order Act
1947, Karnataka Police Act.
 The pandemic has brought many restrictions in our ordinary life. From restricting our
movement via imposed lockdowns to freedom of expression and assembly. Public
gatherings, restaurants, malls, etc. were put to close, especially during the early period
of the pandemic.
 Restriction on freedom of movement is put by the order passed by the government
under Section 144 of CrPC along with the Epidemic Disease.
Kharak Singh vs. The State Of U. P. & Others: In this case, unreasonable surveillance
and domiciliary visits by police not authorized by any law and thus held to be
violative of the right to freedom of movement. The Court observed that even
psychological restraint of freedom of movement is violative of this Article.
Freedom of Residence: Article 19(1)(e) guarantees to every citizen of India, the right
to reside and settle in any part of the territory of India. This right is subjected to
reasonable restrictions which may be imposed by the State, by law, under Article
19(5), (1) in the interests of general public; or (2) for the protection of the interests
of any Scheduled Tribe.
Articles 19(1)(d) and 19(1)(e) are Complementary: Broadly speaking, the two rights
contained in Articles 19(1)(d) and 19(1)(e) are parts of the same right and are
complementary and often go together. Most of the cases considered under Article
19(d) are relevant to Article 19(e) also. The two rights are, therefore, discussed
together.
Object of Articles 19(1)(d) & 19(1)(e) The object behind the guarantee contained in
Articles 19(1)(d) and 19(1)(e) is to make Indian citizens national minded. It is to put
an end to petty and parochial considerations. These provisions have thus removed
all internal barriers within the territory of India or any of its parts. The right to
move freely or to reside and settle in any part of India, thus, underlines the concept
that India is one unit so far as the citizens are concerned. These provisions are thus
complementary to Article 5 which provides a single citizenship
Freedom Of Profession, Occupation, Trade And Business [Articles 19(1)(g) & 19 (6)]
Sub-clause (g) of Clause (1) of Article 19 guarantees to every citizen the right “to
practise any profession, or to carry on any occupation, trade or business”. The right
is subjected to the provisions of Clause (6) of Article 19,
Profession, Trade, Business, Occupation-Defined:
 The term “occupation” means some activity by which a person is occupied or engaged.
It would be an activity of a person undertaken as a means of livelihood or a mission

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of life. For instance, a journalist has fundamental right to carry on his or her
occupation under Article 19(1)(g). It includes “profession”, “trade” or “business”.
 The term “profession” has been interpreted to mean an occupation requiring the
exercise of intellectual skill, often coupled with manual skill.
 The term “business” means any activity involving the production, distribution and
consumption of wealth and the production and availability of material services.
 Trade” is an activity concerning the sale and purchase of goods.
Scope
No Right to Carry On Business or Trade in Liquor:
The Court said that citizen had no fundamental right to trade in activities which
were immoral and criminal and in articles or goods which were obnoxious and
injurious to health, safety and welfare of general public. That, the State had power
to prohibit the manufacture, sale, possession, distribution and consumption of
liquors for the reason that it was a dangerous article of consumption and also
because the prohibition contained in the Directive Principle under Article 47 and it
has been ruled that there was no fundamental right under Article 19(1)(g) to carry
on trade or business in intoxicating liquors.
Dancing as a Profession:
Supreme Court in State of Maharashtra vs. Indian Hotel & Restaurants Assn.,” said
that prohibition on dancing in bar placed by Section 31-A of the Bombay Police Act,
1951 violated Article 19(1)(g) The Act, 1951 had classified establishments into
prohibited and exempted establishments on the basis of facilities it provided and
on the basis of harm it caused to atmosphere. Classification so made on the basis
of such invidious presumption, in the absence of any empirical data, showing that
dancing in prohibited establishment necessarily led to depravity and corruption of
public morals, was held not justified and, therefore, was struck down as violative
of Articles 14 & 15.

10. ARTICLE 20
PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES
Article 20 of the Indian Constitution provides the following safeguards to the
persons accused of crimes:
1. Ex post facto law: Clause (1) of Article 20
2. Double Jeopardy: Clause (2) of Article 20
3. Prohibition against self-incrimination: Clause (3) of Article 20

EX-POST-FACTO LAW
An ex-post-facto law is a law which imposes penalties retrospectively, i.e., on
acts already done or which increases penalties for such acts.
 Article 20(1) imposes a limitation on the law-making power of the Legislature.
Ordinarily, a Legislature can make prospective as well as retrospective laws but clause
(1) of Article 20 prohibits the Legislature from making retrospective criminal laws.
However. It does not prohibit imposition of civil liability retrospectively, i.e., with effect
from a past date. So, a tax can be imposed retrospectively.
 The protection afforded by clause (1) is available only against conviction or sentence
for a criminal offence under ex-post-facto law and not against the trial, civil laws or tax
laws.

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The protection (immunity) of clause (1) of Article 20 cannot be claimed in case of

preventive detention, or demand of security from a person. The prohibition is just for
conviction and sentence only and not for prosecution and trial under a retrospective law.

 Penalty greater than at the time of the commission of the offence: The second part of
clause (1) protects a person from ‘a penalty greater than that which he might have
been subjected to at the time of the commission of the offence’.

DOUBLE JEOPARDY
This protection is available only in proceedings before a court of law or a judicial
tribunal. This clause embodies the common law rule of nemo debet vis vexari which
means that no man should be put twice in peril for the same offence.
 It is not available in proceedings before departmental or administrative authorities as
they are not of judicial nature.
 The protection under clause (2) of Article 20 is narrower than that given in the
American and British laws. Under the British and American Constitution, the
protection against double jeopardy is given for the second prosecution for the same
offence irrespective of whether an accused was acquitted or convicted in the first trial.
But under Article 20(2), the protection against double punishment is given only when
the accused has not only been ‘prosecuted’ but also ‘punished’ and is sought to be
prosecuted second time for the same offence. The use of the word ‘prosecution’ limits
the scope of the protection under clause (1) of Article 20.
 The word ‘prosecution’ as used with the word ‘punishment’ embodied the following
essentials for the application of double jeopardy rule. They are:
o The person must be accused of an ‘offence’.
o The proceeding or the prosecution must have taken place before a “court” or
“judicial tribunal”.
o The person must have been ‘prosecuted and punished’ in the previous proceeding.
o The ‘offence’ must be the same for which he was prosecuted and punished in the
previous proceedings.

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PROHIBITION AGAINST SELF-INCRIMINATION

Clause (3) of Article 20 provides that no person accused of any offence shall be
compelled to be a witness against himself. This extends to both oral evidence and
documentary evidence.
However, it does not extend to:
 Compulsory production of material objects
 Compulsion to give thumb impression, specimen signature, blood specimens and
 Compulsory exhibition of the body
It extends only to criminal proceedings and not to civil proceedings
which are of criminal nature.
Accused of an offence
 The words ‘accused of an offence’ make it clear that this right is only available to a
person accused of an offence. Unless a person is accused of an offence, he cannot
claim protection of Article 20(3).
 In America, the protection of self-incrimination is not confined to the accused only. It
is also available to a witness. The position is the same in British law. But the protection
under clause (3) of Article 20 is only available to the accused. Thus, the guarantee in
our Constitution is narrower than that in the American Constitution.
To be a witness
 The prosecution under Article 20(3) covers not merely testimonial compulsion in a
court-room but also compelled testimony previously obtained- any compulsory
process for production of evidentiary document which are reasonably likely to
support the prosecution against him.
Compulsion to give evidence “against himself”
 The protection under Article 20(3) is available only against the compulsion of the
accused to give evidence “against himself”. But left to himself, he may voluntarily waive
his privilege by entering into the witness-box or by giving evidence voluntarily on
request.
Request is not compulsion: Request implies no compulsion; therefore, evidence given
on request is admissible against the person giving it. Compulsion means duress which
includes threatening, beating or imprisoning the wife, parent or child of the person.
Where the accused makes a confession without any inducement, threat or promise
under Article 20(3) does not apply.

CASE LAWS
Narcoanalysis, Polygraphy and Brain Finger Printing tests of accused:
 Polygraph or Lie Detector Test: It is a procedure that measures and records several
physiological indicators such as blood pressure, pulse, respiration, and skin
conductivity while a person is asked and answers a series of questions.
 This test is based on the assumption that physiological responses that are triggered
when a person is lying are different from what they would be otherwise.
 A numerical value is assigned to each response to conclude whether the person is
telling the truth, is deceiving, or is uncertain.
 A test similar to Polygraph was first done in the 19th century by the Italian
criminologist Cesare Lombroso, who used a machine to measure changes in the blood
pressure of criminal suspects during interrogation.

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 Narcoanalysis Test: It involves the injection of a drug, sodium pentothal, which

induces a hypnotic or sedated state in which the subject’s imagination is neutralised,
and they are expected to divulge information that is true.
 The drug, also referred to as truth serum, was used in larger doses as anaesthesia
during surgery, and is said to have been used during World War II for intelligence
operations.
 Recently, investigating agencies have sought to employ these tests in the investigation,
and are sometimes seen as being a softer alternative to torture or “third degree” to
extract the truth from suspects.
 Brain Mapping Test or P-300 test: In this test, the activity of the brain of a suspect is
measured during interrogation to find out whether he is concealing any information.
In the Selvi vs State of Karnataka & Anr case, 2010, the Supreme Court ruled that the
use of such neuroscientific investigative techniques constituted testimonial
compulsion and violated an accused person’s right against self-incrimination
under Article 20(3), and their right to life and personal liberty under Article 21 of
the Constitution.

11. ARTICLE 21
PROTECTION OF LIFE AND PERSONAL LIBERTY
It states that, “No person shall be deprived of his life or personal liberty
except according to procedure established by law.”
 The right guaranteed in Article 21 is available to ‘citizens’ as well as ‘non-citizens’.
 Article 21 can be claimed only when a person is deprived of his life or personal liberty
by the State under the meaning of Article 12. Thus, Violation of the right by Private
individual is not within the purview of Article 21.

MEANING OF RIGHT TO LIFE

Sunil Batra vs Delhi Administration: Right to life includes right to lead a healthy life
so as to enjoy all faculties of human body in their prime conditions. It would
even include the right to protection of a person’s tradition, culture, heritage, and
all that gives meaning to a man’s life.

SCOPE OF RIGHT TO LIFE

Right to live with Human Dignity
1. PUDR vs UOI: The non-payment of minimum wages to the workers has been held by
the supreme court as violative of Right to life.
2. Bandhu Mukti Morcha vs UOI: Linked the article 21 with DPSP particularly Article 41
and 42.
3. Jeeja Ghosh vs UOI: Rights guaranteed to differently abled person were founded on
the sound principles of human dignity, which is the core value of human right and
facet of Article 21.
Right to Reputation:
1. Subramaniam Swamy vs UOI: the apex court held that the reputation of an individual
is a basic element under Article 21 of the Constitution and balancing of fundamental
rights is a constitutional necessity. Right to free speech does not give a right to an
individual to defame others. The citizens have a correlative duty of not interfering
with the liberty of other individuals since everybody has a right to reputation and right
to live with dignity. Further, the court held that it is the duty of the State to regulate

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the freedom of speech and expression and to ensure that the citizens do not make
defamatory speeches. Existence of Section 499 of the IPC is not a restriction on the
freedom of speech and expression because it ensures that the social interest is served
by holding a reputation as a shared value of the public at large. Therefore, it is
essential to keep Section 499 (Criminal Defamation) of the Indian Penal Code, 1860
alive in order to protect the reputation of individuals.
2. Om Prakash Chautala vs Kanwar Bhan: A Good reputation is an element of personal
security and is protected by the constitution and thus inseparable facet of Right to
life.
Right to livelihood:
1. Olga Tellis vs Bombay Municipal Corporation: The pavements dwellers have the
Right to Livelihood which is considered in the sweep of Right to Life. the Petitioners
lived on the slums not by choice, but by a reason of involuntary acts; it did not include
a mala fide intent, and thus was not a Criminal trespass.
2. A person tested positive for HIV could not be rendered medically unfit solely on the
ground to deny him of employment.
Right to live in unpolluted environment
The Supreme court said that the word environment is of broad spectrum, which
brings within its ambit hygienic atmosphere and ecological balance, free from
pollution of air, water, sanitation without which life could not be enjoyed.
1. MC Mehta vs UOI: Large scale misuse of residential space for commercial purposes
violate right to have decent urban environment. In this case, Article 21 is read with
Article 48A and 51A (g).
2. Moti Lal Yadav vs State of UP:- The court directed Principal Secretary Home and
Chairman of UP Pollution Board to file separate affidavit on the steps taken to enforce
2000 rules.
3. In Re: Noise Pollution vs Unknown: The noise level at the boundary of the public place,
where loudspeaker or public address system or any other noise source is being used
shall not exceed 10 dB(A) above the ambient noise standards for the area or 75 dB(A)
whichever is lower.
4. MC Mehta vs UOI: Balance has to be maintained between environmental protection
and developmental activities. The court explained the protection and improvement
of environment as envisaged in Environment protection act can be achieved by
sustainable development.

RIGHT TO DIE
Suicide: According to Section 309 of IPC, “Whoever attempts to commit suicide and does
any act towards the commission of such offence, shall he punished with simple
imprisonment for a term which may extend to one year 1[or with fine, or with both].
“Mental Healthcare Act has effectively taken away the sting of Section 309. It will be good
when the IPC is amended and Section 309 removed. Until then, Mental Healthcare Act
will ensure that people who attempt suicide can be provided with services they need and
also protected from harassment from police authorities
1. P Rathinam vs UOI: In this case, it was held that if a person has attempted to commit
suicide, he must be unstable mentally and must be going through a lot already. And
punishing a person for trying to end his life because he was in trouble, would not help
his mental health at all.
2. Smt. Gian Kaur v. the State of Punjab: The Supreme Court held that the right to life is
a natural right while suicide is an unnatural extinction of life and therefore the latter

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is inconsistent with the former. The court thus upheld the constitutional validity of
Section 309.

MENTAL HEALTH CARE ACT 2017:

Recognition of Rights: Mental Healthcare Act provides right to access mental
healthcare, right to community living, protection from cruel, inhuman & degrading
treatment, right to equality and non-discrimination, right to information, right to
confidentiality, right to access medical records, right to personal contacts &
communication, right to legal aid, right to make complaints about deficiencies in
provision of services and also right to make advanced directive to mental healthcare
pateints.
Right to live with dignity: Every person with mental illness shall have a right to live
with dignity Right to Confidentiality: A person with mental illness shall have the right
to confidentiality in respect of his mental health, mental healthcare, treatment and
physical healthcare The Act empowers person with mental illness to make an advance
directive that states how he/she wants to be treated for the illness and who his/her
nominated representative shall be.

Euthanasia:
Active euthanasia: involves an active intervention to end a person’s life with substances
or external force, such as administering a lethal injection.
Passive or negative or non-aggressive euthanasia is the denial of medical care necessary
for maintaining life, such as the denial of antibiotics when the patient is likely to die
without them.
1. Aruna Shanbaug case (2011): The SC allowed passive euthanasia.
2. Common Cause case (2018): The SC decided that passive euthanasia will be legally
allowed henceforth in India and also laid down guidelines for living wills.
The requirement for the Magistrate’s approval has been replaced by an intimation to the
Magistrate.
 The medical board must communicate its decision within 48 hours (no time limit
earlier).
 Now a notary or gazetted officer can sign the living will in the presence of two
witnesses instead of the Magistrate’s countersign.
 In case the medical boards set up by the hospital refuses permission, it will now be
open to the kin to approach the High Court which will form a fresh medical team.
Death Sentence
Section 354 (5) of CrPC specifies that hanging is the method of execution in the civilian
court system. According to Army Act of 1950, army court-martial system recognises both
hanging and shooting as legitimate methods of execution. Between 2004 and 2015,
approximately 1500 capital punishment verdicts were issued, but only four convicts were
hanged.
Basis of Death Penalty:
Retribution: People should get what they deserve in proportion to the severity of their
crime. This argument states that real justice requires people to suffer for their
wrongdoing and to suffer in a way appropriate for the crime.
Deterrence: Capital punishment is often justified with the argument that by executing
convicted murderers, we will deter would-be murderers from killing people.

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Supreme Court on Death Penalty

Bachan Singh vs State of Punjab: It was determined that the death penalty is an
exception and life imprisonment is the rule, but the Supreme Court’s decision did not
define the phrase ‘rarest of rare.’
Swami Shraddananda case: The apex court had observed that where the apex court
judges “may feel somewhat reluctant in endorsing the death penalty… the court would
take recourse to the expanded option”. The expanded option being imprisonment for
the rest of life without remission.
Manoj v. State of Madhya Pradesh: Certain procedural thresholds must be met for
sentencing to be fair and explicitly rejects the idea that death sentences can be
determined solely on crime-based considerations.
1. Commitment to recognising reformation as integral to the Indian criminal justice
system, especially death penalty sentencing.
2. It asks the state and sentencing judges to establish that there is no probability of
reformation of the accused.
3. It recognises that aspects of the accused’s life, both pre-offence and post-offence in
prison, are relevant.
4. As practical steps in this process, the judgment asks courts to call for reports from the
probation officer as well as prison and independent mental health experts.
5. The state too must present material that speaks to a wide range of factors. The right
of the accused to present mitigating factors and rebut the state, if necessary, is also
recognised.
Reason Death Penalty persists:
 National Security: Some acts like waging war against the State, terrorism etc. erodes
the sanctity of our National Security framework.
 Acts that shake the collective conscience: Supporters of Death Penalty says that there
are some acts which shakes the collective conscience of society and deserves nothing
except death penalty.
Death Penalty should go away:
 Capital punishment are of the view that retribution is immoral, and it is just a sanitised
form of vengeance. Capital punishment doesn’t rehabilitate the prisoner and return
them to society.
 Social Factors Against Capital Punishment: An analysis of the possible reasons to
avert the death penalty is reflected in a series of recent verdicts such as Lochan Shrivas
vs State of Chhattisgarh (2021) and Bhagchandra vs State of Madhya Pradesh (2021).
These reasons might include socio-economic backwardness, mental health, heredity,
parenting, socialisation, education, etc.
 Discriminatory towards One Section: According to the Death Penalty India Report
2016 (DPIR), approximately 75% of all convicts sentenced to death in India are from
socio-economically underprivileged categories, such as Dalits, OBCs, and religious
minorities.
 Spent considerable time in jail due to an error by the State. However, if a person
is wrongly hanged, then no amount of compensation can bring back the person and
mitigate the error.
Inhumane: Human rights and dignity are incompatible with the death penalty. The death
sentence is a violation of the right to life, which is the most fundamental of all human
rights.

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Global Precedent – No correlation with low crime rates: Scandinavian countries like
Norway, Sweden and Finland have one of the lowest crime rates in the world without
death penalty. They focus on reforming the criminal rather than deterring him with
stricter and harsh punishments.
Law Commission in 262nd report proposed that the death penalty should be
abolished for all crimes excluding terrorism-related offences and war. The
experience of the Scandinavian countries also supports this view. However, till the
time it happens, there should be proper implementation of the Bachan Singh
Judgment by the Indian Courts.
Personal Liberty
 Liberty in negative sense means absence of restrictions.
 Positive liberty means freedom with certain restrictions which is necessary for the
good of the society. These restraints are necessary so that everyone irrespective of
the caste, creed, gender or any other societal factors which restrict a common man
could enjoy the liberty.
Personal liberty was examined for the first time in AK Gopalan case. It means
nothing more than the liberty of a physical body. It means freedom from arrest
and detention from false imprisonment. Kharak Singh case: The Court laid down
that an unauthorised intrusion into a person’s home and the disturbance caused
to him thereby violated his right to “personal liberty” enshrined in Article 21. Thus,
the Regulation authorising domiciliary visits, was plainly violative of Article 21 as
there was no law on which it could be justified and hence, it was struck down as
unconstitutional.
Facets of Personal Liberty
Right to Privacy: Internationally, the right to privacy is prescribed in Article 12 of
the United Nations Declarations of Human Rights (UDHR) 1948 and Article 17 of the
International Convention on Civil and Political Rights (ICCPR) 1966. The right to
privacy legally protects an individual against ‘arbitrary interference’.
 It is protected as an intrinsic part of the right to life and personal liberty.
 The Court directed the Centre to put into place, a robust regime for data protection.
The creation of such a regime requires a careful and sensitive balance between
individual interests and legitimate concerns of the State. The legitimate aims of the
State would include, for instance: Protecting national security, Preventing and
investigating crime, encouraging innovation and Preventing the dissipation of social
welfare benefits.
The Supreme Court was careful to point out that the fundamental right to privacy is not
absolute, and that it will always be subject to reasonable limitations. It was held that the
state can limit the right to privacy to defend legitimate state interests. Only state action
that passes each of the three tests can limit the right. First, such state action must have
a legislative mandate; second, it must be pursuing a legitimate state objective; and third,
it must be proportionate, i.e., such state action must be necessary for a democratic
society, both in nature and scope, and the action should be the least intrusive of the
available options to achieve the goals.
Telephone Tapping:
PUCL vs UOI: The Court laid down exhaustive guidelines to regulate the discretion vested
in the State under Section 5 of the Indian Telegraph Act for the purpose of telephone
tapping and interception of other messages to safeguard public interest against arbitrary
and unlawful exercise of power by the Government. Section 5(2) of the Act permits the
interception of messages in accordance with the provisions of the Act. “Occurrence of

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any public emergency” or in interest of public safety” are the sine qua non “for the
application of provisions under section 5(2) of the Act unless a public emergency has
occurred or the interest of public safety demands, the authorities have no jurisdiction to
exercise the powers under the said legislation. The Court said public emergency would
mean the prevailing of sudden condition or situation affecting the people at large calling
for immediate action. The expression ‘public safety’ means the state or condition of grave
danger or risk for the people at large. When either these two conditions are not in
existence, the Court said, the Central Government or the State Government or the
authorised officers cannot resort to telephone tapping.
Reproductive Choices:
 Devika Biswas vs UOI: The Supreme Court observed that “the right to health” and “the
reproductive rights of a person”, constituting two important components of the “right
to life” under Article 21 had been endangered by sterilization procedure carried out,
under “the Population Control and Family Planning Programme or the Public Health
Programme of the Government of India.”
Sexual orientation
 Suresh Kumar Koushal vs Naz Foundation case: Sexual orientation is an essential
attribute of privacy. Discrimination against an individual based on sexual orientation
is deeply offensive to the dignity and self-worth of the individual. Equality demands
that the sexual orientation of everyone in society must be protected on an even
platform. The right to privacy and the protection of sexual orientation lies at the core
of fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.
Disclosure of Disease
 Mr. X vs Hospital “Z: The court held that the “it was open to the hospital, or the doctor
concerned to reveal such information to persons related to the girl whom he intended
to marry, and she had a right to know about the HIV positive status of the appellant”.
Court also held that the duty to maintain secrecy in the doctor-patient relationship is
not absolute and can be broken for the public good or interest.
Article 21 and Prisoner Rights
Supreme Court while interpreting Article 21, has laid down a new Constitutional and
Prison Jurisprudence. Rights or protections recognised for prisoners have been
discussed below:
Right to Free Legal Aid:
1. M H Hoskot vs State of Maharashtra: Supreme Court laid down that right to free legal
aid at the cost of the State to an accused, who could not afford legal services for reasons
of poverty, indigence or incommunicado situation, was part of fair, just and reasonable
procedure implicit in Article 21. Free legal aid to the indigent has been declared to be “a
state’s duty and not government charity”.
Right to Speedy Trial: Article 21 requires that a person can be deprived of his liberty
only in accordance with procedure established by law which should be a just, fair, and
reasonable procedure. A procedure cannot be reasonable, fair, or just unless it ensures
a speedy trial for determination of the guilt of the person deprived of his liberty.
Guarantee of a speedy trial, it is explained, serves a three-fold purpose. Firstly, it protects
the accused against oppressive pre-trial imprisonment; Secondly, it relieves the accused
of the anxiety and public suspicion due to unresolved criminal charges, and lastly, it
protects against the risk that evidence will be lost, or memories dimmed by the passage
of time, thus, impairing the ability of the accused to defend him or herself.
1. Hussainara khatoon vs State of Bihar: The right to a speedy trial is available at all
stages namely, investigation, inquiry, trial, appeal, revision, and retrial. The Supreme

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Court in its various judgements emphasised that a person could approach the Supreme
Court under Article 32 and the High Court under Article 226 to enforce the right to a
speedy trial. However, the Court at various times refused to fix a time limit under which
a trial has to be concluded.

Section 309: It provides that the proceedings to be conducted on day-to-day basis

until the examination of all the witnesses have been done. It also provides that the
trial relates to an offence under Section 376, 376-A, 376-B, 376-C, 376-D, 376-DA or
376-DB of the Indian Penal Code, 1860, the inquiry or trial shall, as far as possible be
completed within two months from the date of filing of the charge sheet.Section 173:
Provides that the investigation of the offence of rape shall be completed within two
months.Section 311: Any Court may, at any stage of any inquiry, trial or other
proceeding under this Code, summon any person as a witness, or examine any person
in attendance

Right to Fair Trial

Principles:
 Presumption of innocence: this principle is considered the most important principle
of the fair trial so as to safeguard the accused from arbitrary and wrongful conviction.
 Independent, impartial and competent judges: Proceedings are to be conducted
by a competent, independent and impartial judge)/court. Section 479 of the code
explicitly prohibits any judge or magistrate to trial any case within which he is a party
or personally interested.
1. Best Bakery Case: Court said that a trial which is primarily aimed at ascertaining truth,
has to be fair to all concerned. Not only the accused be fairly dealt with, but also the
victims or their family members and relatives. Denial of a fair trial is as much injustice to
the accused as is to the victim and the society.
Right to Bail:
Criminal Procedure Code, 1973, does not define bail, although the terms bailable offence
and non-bailable offence have been defined in Section 2(a) Cr.P.C. as follows: ”Bailable
offence means an offence which is shown as bailable in First Schedule or which is made
bailable by any other law for the time being enforce, and non-bailable offence means
any other offence”. Sections. 436 to 450 set out the provisions for the grant of bail and
bonds in criminal cases. The amount of security that is to be paid by the accused to
secure his release has not been mentioned in Cr.P.C. Thus, it is the discretion of the court
to put a monetary cap on the bond.
Procedure Established by Law VS Due Process of Law
After a discussion between Constitutional Assembly Advisor, Sir B.N. Rau, and
Frankfurter J. of USA’s Supreme Court, who stated that the due process clause is
undemocratic and burdensome to judiciary because it empowers judges to invalidate
legislation enacted, Constituent Assembly used the term ‘procedure established by law’.
Constituent debate’s preference for “process defined by law” was to give parliamentary
supremacy in law making with appropriate constitutional and judicial safeguards for
“personal liberty” against judicial supremacy. The supremacy of the legislature was
maintained by the constituent assembly.
It signifies that if a law has been passed by Parliament by following the proper procedure,
then it will be a valid law. Implementing this concept indicates that a person might be
deprived of his life or personal liberty according to the procedure established by law.
AK Gopalan vs UOI: AK Gopalan, a political leader, was arrested in Madras under
Preventive Detention Act 1950. He claimed that action taken under Prevention

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Detention Act violated his fundamental rights under Article 14, 19 and Article 21 of Indian
Constitution. He also claimed that the phrase procedure established by law in Article 21
refers to due process of law. In his case, the procedure followed was not proper, resulting
in a breach of Article 21 of Indian Constitution.
Supreme Court ruled that if government takes away an individual’s freedom in
accordance with the procedure established by law, i.e., if imprisonment was done
by following the proper procedure, then it will not be considered a breach of Articles 14,
19, and 21 of the Indian Constitution. The Court took a narrow interpretation of Article
21 in this case.
However, in this case, Justice Fazl Ali gave a dissenting opinion. He said that the meaning
of the term procedure established by law also implies the due process of law, which
indicates that no one should be left without the opportunity of being heard i.e., Audi
alteram partum (no person shall be left unheard) since it is one of the important
principles of natural justice.
Maneka Gandhi v. Union of India: Passport of Maneka Gandhi was detained by officials
under the provisions of Passport act. Petitioner went to Supreme Court under Article 32
and argued that the government’s act of seizing her passport was a clear violation of her
personal liberty under Article 21. This decision greatly expanded the ambit of Article 21
and accomplished the purpose of making our country a welfare state, as mentioned in
the Preamble. The Court concluded that the procedure established by law ought to be
fair, just, and reasonable. The Court noted that the procedure specified by law for
depriving a person of his right to life and personal liberty must be proper, reasonable,
and fair, rather than discretionary, whimsical, and oppressive.
An individual’s life and freedoms can be taken away only when the following
requirements are satisfied:
 The law must be valid.
 There must be a proper procedure.
 That procedure should be just, fair, and not arbitrary.
If the procedure provided by law is frivolous, oppressive, or unreasonable, then it
should not be considered a procedure at all. A system must be reasonable or just
to represent the idea of natural justice.

Rules Of Principles of Natural Justice

No person shall be punished without being heard.
No person shall be judged by his own case.
An authority shall act Bonafide (good faith) without any bias.
If the court finds it to be arbitrary or oppressive it will declare the law invalid and
extend protection to the individual not against the arbitrary action of the executive
but also against the Legislative and Executive.

12. ARTICLE 21A

Article 21A was inserted into Indian Constitution by 86th Constitutional Amendment,
states that “the state shall provide free and compulsory education to all children between
the ages of 6 and 14 through a law that it may determine.” In 2009, Right to Education
Act was passed considering Article 21A.

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UNNI KRISHNAN VS STATE OF ANDHRA PRADESH

Supreme Court cited Article 13 of the International Covenant on Civil & Political Rights
when it stated that in order for the State to fulfil its duty to provide higher education, it
must use all of its resources to the fullest extent possible in order to gradually realise
each individual’s right to education.
The Court ruled that the scope of the right must be understood in light of the Directive
Principles of State Policy, including Article 45, which mandates that the State must make
every effort to provide free and mandatory education for all children under the age of
14.
Supreme Court ruled in Pramati Educational and Cultural Trust v. Union of India in 2014
that Right to Education Act of 2009 cannot force minority educational institutions to
admit students from other communities to uphold the state’s goal of providing ‘free’ and
‘compelled’ education to ‘all.’
School development Management vs State of Rajasthan: Wording of the article is not
absolute and permits the state to choose the medium of instruction ‘by law’. According
to what has been granted under Article 21A of Constitution, “no child or parent can claim
it as a matter of right, that he/his ward should be trained in a particular language or the
mother tongue solely.

13. ARTICLE 22
SAFEGUARDS AGAINST ARBITRARY ARREST AND DETENTION
PART I: DETAINED UNDER AN ORDINARY LAW
Clauses (1) and (2) of Article 22 guarantee four rights on a person who is
arrested for any offence under an ordinary law-
 The right to be informed ‘as soon as may be’ of ground of arrest’.
 The right to consult and to be represented by a lawyer of his own choice.
 The right to be produced before a magistrate within 24 hours.
 The freedom from detention beyond the said period except by the order of the
magistrate.
The above fundamental rights guaranteed to arrested persons by clauses (1) and
(2) of Article 22 are available to both citizens and non-citizens and not to persons
arrested and detained under any law providing for preventive detention.

RIGHTS TO BE INFORMED OF GROUNDS OF ARREST

 It is necessary to enable the arrested person to know the grounds of his arrest and to
prepare for his defence.
 Article 22(1) is in the nature of a directive to the arresting authorities to disclose the
grounds of arrest of a person immediately.
 If the ground of arrest is delayed, it must be justified by ‘reasonable circumstances.
 This right of being informed of the grounds of arrest is not dispensed with by offering
to make bail to the arrested person.
Right to be defended by a lawyer of his own choice
In Hussainara Khatoon vs Home Secretary, State of Bihar,1979 case, the SC held that its
is the constitutional right of every accused person who is unable to engage a lawyer, to
have free legal services provided to him by the State and the State is under constitutional
duty to provide a lawyer to such person if the needs of justice so require. If free legal
services are not provided, the trial itself may be vitiated as contravening Article 21.

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Right to be produced before a magistrate

 The arrested person must be produced before the Magistrate within 24 hours of his
arrest. No Detention beyond 24 hours except by order of the Magistrate
 The expression ‘arrest and detention’ in Articles 22(1) and (2) was held not to apply to
a person arrested under a warrant issued by the court on criminal or quasi-criminal
complaint or under security proceedings.
 It was designed to give protection against the act of the Executive or order of non-
judicial authorities and applies to a person who has been accused of a crime or of
offence of criminal or quasi-criminal nature or some act prejudicial to the State or
public interest.
Exceptions
 Clause (3) of Article 22 provides two exceptions to the rule contained in clauses (1) and
(2).
 It provides that the rights given to arrested person under clauses (1) and (2) are not
available to following persons:
 An enemy alien
 A person arrested and detained under Preventive Detention law

PART II: PREVENTIVE DETENTION

Meaning of Preventive Detention
It involves detainment (containment) of a person to keep him/her from
committing future crimes and/or from escaping future prosecution.
 Article 22 (3) (b) of Constitution allows for preventive detention and restriction on
personal liberty for reasons of state security and public order.
Safeguards against arrest or detention made under a law providing for
preventive detention [articles 22(4) to (7)]
Clauses (4) to (7) of Article 22 contain the procedural requirements which are
to be complied with when a person is detained under a law providing for
preventive detention. These are as follows-
No detention beyond three months unless such detention is approved by Advisory
Board.
Detaining authority must communicate, as soon as may be, to the detenu, the grounds
for such detention.
Detenu must be afforded the earliest opportunity of making a representation against the
order of detention.
No detention beyond the maximum period prescribed under a law made by Parliament
under Clause 7(a).
Article 22(7)(a) provides: “Parliament may by law prescribe the circumstances
under which and the class or classes of cases in which, a person may be detained
for a period longer than three months under any law for consideration providing
for preventive detention without obtaining the opinion of an il a final decision
Advisory Board in accordance with the provisions of sub-clause (a) of clause (4).
Purpose of the Preventive detention
1. In Mariappan vs. District Collector & Others, the Court held that the aim of detention
and its laws is not to punish anyone but to stop certain crimes from being committed.

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Safeguards against the misuse of power of Detention

1. Every case of preventive detention must be authorised by the law and not at the will
of the executive.
2. In fact, the Preventive detention cannot extend beyond a period of 3 months.
3. Every case of the preventive detention must be placed before an Advisory Board
composed of the Judges of the High Court (or persons qualified for Judges of the High
Court)
4. In fact, the case must be presented before the Advisory Board approx. within 3
months.
5. A continued detention after 3 months must have consent of the Advisory Board.
6. In fact, the person will be given the opportunity to afford the earliest opportunity to
make a representation against preventive detention.
7. No person can be detained indefinitely.
Preventive Detention – Issues:
 Arbitrariness: Police decisions on whether a person poses a threat are not tested in
court by leading evidence or evaluated by legally educated individuals.
 Violation of human rights: Quite frequently, there is no trial (up to three months),
no periodic review, and no legal representation for the imprisoned person.
 Abuse: It lacks any procedural safeguards to decrease detainees’ vulnerability to
torture and discriminatory treatment, as well as to prohibit authorities from utilising
preventative detention for subversive purposes.
 Suppression tool: In the lack of adequate protections, preventative detention has
been used inappropriately, notably against Dalits and minorities.
 It is strange that the framers of our Constitution, who were once victims of the tyranny
of preventative detention laws, opted to extend powers to governments to establish
such laws under the Constitution.
 Section 50 of the Criminal Procedure Code (CRPC) states that everyone detained
must be notified of the reason for their arrest and has the right to bail. In actuality,
though, obtaining bail is not an easy procedure.
Muntazir Ahmad Bhat v. UT of J&K (2021)
The Bench stated that while violent behaviour is not new, today’s extremism,
radicalism, and terrorism in their full expression have taken on a new character
and represent tremendous challenges to the civilised world. As a result, to keep
an eye on the detainees’ illicit conduct, the Bench rejected the plea of freeing a
preventive detenuee.
Abhayraj Gupta v. Superintendent, Central Jail, Bareilly
The Allahabad High Court quashed a detention order issued against a murder
suspect by exercising powers under the National Security Act, 1980, stating that if
a person is in custody and there is no imminent possibility of his release, the
power of preventive detention should not be exercised. In considering the
detention order issued against the petitioner, the Court noted that the detention
order contained a blatant assertion that if the petitioner is released on bond, he
may engage in criminal activity again.
Guidelines given by Supreme Court:
 The detention of an individual under preventive detention law should be based on
apprehensions that the concerned person is a threat to “public order” affecting the

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community at large. Mere ‘law and order’ problems such as indulging in cheating or
criminal breach of trust would not be sufficient.
 The state should not arbitrarily use preventive detention to deal with all “law and
order” problems, which could be dealt with by ordinary law.
 In all such cases, the court must ask one question in deciding its legality, i.e., was the
ordinary law of the land sufficient to deal with the situation? If the answer is in the
affirmative, the detention order will be illegal.
 Moreover, preventive detention must fall within the four corners of Article 21 (due
process of law). It must be read with Article 22 (safeguards against arbitrary arrest and
detention) and the statute in question.

14. ARTICLE 23
PROHIBITION OF ‘TRAFFIC IN HUMAN BEINGS’ AND FORCED
LABOUR
First part of Article 23(1) of Constitution prohibits traffic in human beings, begar and
other similar forms of forced labour. Second part of article 23 declares that any
contravention of this provision shall be an offence punishable in accordance with law.
Article 23(2) provides that, nothing in this article shall prevent State to impose
compulsory service for public purposes provided that in making so it shall not make any
discrimination on the grounds only of religion, race, caste or class or any of them.
‘Traffic in Human Beings’ means selling and buying men and women like goods and
include immoral traffic in women and children for immoral or other purposes.
 Though slavery is not expressly mentioned in Article 23, it is included in expression
‘traffic in human being’.
 Article 23 protects individual not only against State but also private citizens. It imposes
a positive obligation on the State to take steps to abolish evils of “traffic in human
beings” and begar and other similar forms of forced labour whenever they are found.
 Begar and “other forms of forced labour” are prohibited by this article.
 Act of begging is a crime in 20 states and two UTs of India. It is treated as cognizable
and non-bailable offense.
 Currently, there is no central law on begging & destitution and most states have
adopted the Bombay Prevention of Begging Act, 1959.
Ram Lakhan v State (Case dealing with anti-Begging law):
 In this case, Supreme Court has critically analysed every situation of a beggar from a
legal, social and ethical point of view.
 Contrary to Bombay act 1959, judgment has classified beggars into 4 categories:
o Down-right lazy who doesn’t want to work.
o Alcoholic or drug-addict

o Forced by a ringleader of a beggary “gang”.

o Starving, hopeless and helpless
 Judge says that people falling under the 3rd and 4th category are doing the act under
necessity and thus those should not be convicted for the act which they are not
performing voluntary.
 Provision is also contrary to fundamental right of freedom of speech and expression
(Art 19).

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 Court held that Begging Act violated Article 14 (equality before law) and Article 21 (right
to life and personal liberty) of the Constitution.
 Court observed that under article 21 it is stated the responsibility to provide quality
life to its citizens. State cannot penalize people for begging due to poverty.

15. ARTICLE 24
Prohibition of employment of children in factories etc.
Article 24 of Constitution prohibits employment of children below 14 years of age in
factories and hazardous employment. This provision is certainly in the interest of public
health and safety of the lives of children. Children are assets of a nation. That is why
Article 39 of the Constitution imposes upon the State an obligation to ensure that the
health and strength of workers, men and women, and the tender age of the children are
not abused and that citizens are not forced by economic necessity to enter avocations
unsuited to their age or strength.

LAWS THAT WERE PASSED IN PURSUANCE OF ARTICLE 24 IN INDIA

FACTORIES ACT, 1948
 This was the first act passed after independence to set a minimum age limit for the
employment of children in factories.
 The Act set a minimum age of 14 years. In 1954, this Act was amended to provide that
children below the age of 17 could not be employed at night.

MINES ACT OF 1952

 This Act prohibits the employment of people under the age of 18 years in mines.

CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986

 This was a landmark law enacted to curb the menace of child labour prevalent in India.
It described where and how children could be employed and where and how this was
forbidden.
 This Act designates a child as a person who has not completed his/her 14th year of
age. The 1986 Act prohibits the employment of children in 13 occupations and 57
processes.

CHILD LABOUR (PROHIBITION & REGULATION) AMENDMENT ACT, 2016

 This Act completely forbids the employment of children below 14 years of age. It also
bans the employment of people between the ages of 14 and 18 in hazardous
occupations and processes.
 Punishments to violators of this law were made stricter by this amendment act. This
Act allows children to be employed in certain family occupations and also as artists.

CHILD LABOUR (PROHIBITION AND REGULATION) AMENDMENT RULES, 2017

 Government notified the above Rules in 2017 to provide a broad and specific
framework for prevention, prohibition, rescue, and rehabilitation of child and
adolescent workers.
 The Rules clarified on issues concerning the employment of family enterprises and
provides safeguards for artists in that the working hours and conditions are specified.

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16. ARTICLE 25-28

ARTICLE 25
Freedom of conscience and free profession, practice, and propagation of religion
Article 25 guarantees the freedom of conscience, the freedom to profess, practice,
and propagate religion to all citizens. Article 25 (1) guarantees to every person “subject
to public order, morality and health and to the other provisions of Part III of the
Constitution the freedom of conscience and the right to profess, practise and propagate
religion”.
Article 25 (2) provides that: Nothing in this article shall affect the operation of any
existing law or prevent the State from making any law-
 Regulating or restricting any economic, financial, political or other secular activity
which may be associated with religious practice.
 Providing for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus.

DEFINITION OF RELIGION
 The term ‘religion’ is not defined in the Constitution and indeed it is a term which is
hardly susceptible to any rigid definition.
 Under Article 25(1) a person has a two-fold freedom:
 Freedom of conscience: The Freedom of ‘conscience’ is absolute inner freedom of the
citizen to mould his own relation with God in whatever manner he likes. When his
freedom becomes articulate and expressed in outward form, it is ‘to profess and
practice religion’.
 Freedom to profess, practise and propagate religion:
 To ‘profess’ a religion means to declare freely and openly one’s faith and belief. He has
the right to practice his belief by practical expression in any manner he likes.
To ‘practice’ religion is to perform the prescribed religious duties, rites and rituals, and to
exhibit his religious beliefs and ideas by such acts as prescribed by religious order in
which he believes.
To ‘propagate’ means to spread and publicise his religious view for the edification of
others. But the word ‘propagation’ only indicates persuasion and exposition without any
element of coercion. The right to propagate one’s religion does not give a right to convert
any person to one’s own religion. There is no fundamental right to convert any person to
one’s own religion.

CASE LAWS
ACQUISITION OF PLACE OF WORSHIP
 In M. Siddiq vs Mahant Suresh Das, the Court held by a majority of 2:1 held that
questionable observations made by the Constitutional Bench in Dr. M. Ismail Faruqui
vs Union of India, that ‘Mosque is not essential part of practice of religion of Islam and
namaz (prayer) by Muslims can be offered anywhere, even in open’ were made in
context of land acquisition. Those observations were neither relevant for deciding the
suits nor relevant for deciding the appeals for a quite long time.

ABOLITION OF TRIPLE TALAQ

 Shayara Bano, a 35-year-old woman, challenged the practice after getting divorced
under the triple talaq custom. In 2017, the Supreme Court, in a landmark 3-2 verdict,
had struck down instant triple talaq.

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 Triple Talaq is against the basic tenets of holy Quran and consequently, it violates
Shariat.
 It forms no part of Article 25 (1) of the Constitution.

RESTRICTIONS ON FREEDOM OF RELIGION

Religious liberty subject to public order, morality and health
 In Acharya Jagdishwaranand Avadhuta vs Commissioner of Police, Calcutta, 1984
case, . The SC held that “Tandava dance in procession or at public places by Ananda
Margis carrying lethal weapons and human skulls is not an essential religious rite of
the followers of Anand Marga and hence the order under Section 144, Cr.P.C.
prohibiting such procession in the interest of ‘public’ order and ‘morality’ is not
violative of the rights of petitioners under Article 25 and 26 of Constitution.
 Regulation of economic, financial, political and secular activities associated with
religious practices
In Mohd. Hanif Quareshi vs State of Bihar, 1958 case, the Supreme Court held that the
sacrifice of cows on the Bakrid day was not an essential part of Mohammedan religion
and hence, could be prohibited by the State under clause (2)(a) of Article 25.
Social Welfare and Social Reforms
 Under Clause (2)(b) of Article 25, the State is empowered to make laws for social
welfare and social reform. Thus, under this clause the State can eradicate social
practices and dogmas which stand in the path of the country’s onward progress.
 Right to Sikhs to wear and carry Kirpans: The right of Sikhs to wear and carry kirpans
is recognised practice of Article 25. This does not mean that he can keep any number
of kirpans. He is entitled to keep one sword. He cannot possess more than one Kirpan
without a licence.

ARTICLE 26
(Freedom to manage religious affairs)
It provides that subject to public order, morality, and health every religious
denomination or any section thereof shall have the right-
 To establish and maintain institutions for religious and charitable purposes.
 To manage its own affairs in matters of religion
 To own and acquire movable and immovable property.
 To administer such property in accordance with law
Relation between Article 25 and 26
Initially, it appeared that Article 26 is not subject to restrictions of Article 25. But
in the case of Sri Venkataramana Devaruand Ors. v. State of Mysore & Ors, Supreme
Court declared that article 25(2) has a wider scope of application. And article 26 is
subject to the restrictions of article 25. Analysis of article 26
 This article includes denomination of any religion, whether it is a majority or a minority
religion.
 It does not deal with the rights of individual rather it deals with the rights of religious
denominations.
 The state cannot interfere in the matters of the religion of denominations subject to
the grounds provided in article 25(2) (b).
But the state can interfere in the secular activities of the religious denominations and
organizations.

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Religious Denomination meaning:

 In simple words, it means” collection of individuals, classed together under the same
name” generally a religious sect or body having a common faith and organisation and
designated by a distinctive value.
 Indian Constitution does not specify religious denominations, court decisions must be
consulted to determine what constitutes a religious denomination.
 In SP Mittal v. Union of India, the Supreme Court established three standards that a
religious group must meet:
 A group of people who share a shared faith.
 A common structure.
 A distinct name is used for identification.
Examples of religious denomination: Shaivism, Shaktism, Vaishnavism, in
Hinduism and Shia and Sunni in Islam.

RIGHT TO ESTABLISH AND MAINTAIN INSTITUTIONS FOR RELIGIOUS AND CHARITABLE

PURPOSE 26 (A)
 The words ‘establish and maintain’ in Article 26 (a) must be read together and,
therefore, it is only those institutions which a religious denomination establishes
which claim to maintain it.
 The right under Article 26 (a) is a group right and is available to every religious
denomination, minority as well as majority communities.
The right to maintain an institution for religious and charitable purposes includes the
right to exclude the profession or practices belonging to the other religions.

RIGHT TO MANAGE ‘MATTERS OF RELIGION’ 26 (B)

It means the State cannot interfere in the exercise of this unless they run counter to
public order, health or morality. Accordingly, every religious denomination or
organisation enjoys complete freedom in the matters of deciding what rites and
ceremonies are essential according to the tenets of the religion they hold. The Court has
the right to determine whether a particular rite or ceremony is regarded as essential by
the tenets of a particular religion.
Issue of Excommunication: Bombay Prevention of excommunication act defined
Excommunication as the “expulsion of a person from any community of which he is a
member, depriving him of rights and privileges which are legally enforceable by a suit of
civil nature”. In practical terms, excommunication means not being allowed to access a
mosque belonging to the community or a burial dedicated to the community. A member
of the Dawoodi Bohra community filed a suit in 1949, saying the Act rendered certain
orders passed by their leader unlawful. The 51st leader of the community, Sardar Syedna
Taher Saifuddin Saheb, challenged the constitutional validity of the Act, stating it violated
fundamental rights guaranteed by the Constitution under Articles 25 (Freedom of
conscience and free profession, practice and propagation of religion) and 26 (Freedom
to manage religious affairs).
About the case:
Petitioner said Quran does not permit excommunication, and that it goes against the
spirit of Islam. They submitted that the right to regulate religious communities does not
include the right to excommunicate.
However, another party said that the practice of excommunicate was essential to the
Dawoodi Bohra faith. Actually, another party was of the view that power of
excommunication was part of the management of community affairs in matters of

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religion, and depriving the Dai (leader) of the right and making its exercise a penal
offence “struck at the very life of the denomination
SC in Sardar Syedna Saifuddin v. State of Bombay said: Dai’s (Leader) position is an
essential part of the community and the power to excommunicate is to enforce discipline
and preserve the denomination, not to punish.
Resurfacing of the matter
Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and
Redressal) Act, 2016, was passed. The Act describes a social boycott as “inhuman”, and
defines 16 types of social boycott — including preventing members of a community from
having access to facilities including community halls, burial grounds, etc. In October 2022,
the court said that it would consider whether the practice of excommunication that was
protected by the 1962 order can continue.
So, now the court will see the issue mainly on two grounds:
 Balancing the rights under Article 26(b) — right of religious denominations to manage
their own affairs in matters of religion.
 Whether the practice can be protected under Article 26(b) when tested on the
touchstone of constitutional morality.
Haji Ali Dargah Trust Issue
 The trust barred women from entering the sanctum sanctorum, the Bombay High
Court lifted the ban, saying it contravenes the Constitution and women should be
allowed entry “at par with men”. The ban imposed by the dargah trust, prohibiting
women from entering the sanctum sanctorum of the Haji Ali Dargah, contravenes
Articles 14 (equality before law), 15 (prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth) and 25 (free profession and practice and
propagation of religion) of the Constitution.
 The trust had claimed the fundamental right “to manage its own affairs” under Article
26 of the Constitution. The court, however, said the right cannot “override the right to
practice religion itself”, as Article 26 cannot be seen to overrule the right to practice
one’s religion as guaranteed under the Constitution of India.
The Haji Ali Dargah Trust is a public charitable trust. It is open to people all over the world,
irrespective of their caste, creed or sex, etc. Once a public character is attached to a place
of worship, all the rigors of Articles 14, 15 and 25 would come into play and the trust
cannot justify its decision solely based on a misreading of Article 26.

RIGHT TO ADMINISTER PROPERTY OWNED BY DENOMINATION 26 (C) & (D)

 Clause (c) of Article 26 secures to a religious denomination or any section of the right
to own and acquire movable and immovable property”, Clause (d) further strengthens
this right by guaranteeing to the denomination e right to administer such property in
accordance with law” The right contained in Clause (c) of Article 26 is distinguishable
from the guarantee contained in Clause (b) relating to management of religious
affairs. While Article 26(b) guarantees a fundamental right which cannot be taken
away except on grounds mentioned in Article 25(2), the right contained in Article 26(c)
can be regulated by a law made by a competent Legislature.
 The UP-Sri Kashi Vishwanath Temple Act, 1988, provided for vesting the entire
property, movable and immovable, in the deity Shri Kashi Vishwanath and the
administration and management of was entrusted to a Board. The Allahabad High
Court in Trivikram Narain Singh v. State of U.P. held the Act valid.
 It may be noted that Articles 26(c) and 26(d) do not create rights, in any denomination
or its section, they merely safeguard and guarantee the continuance of rights which

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such denomination or its section had However, a law which takes away the right of
administration altogether from the religious denomination and vests it in some
secular authority, would be violative of the guarantee contained in Article 26(d).
Likewise In Dr. M. Ismail Faruqui vs. Union of India, the Supreme Court was dealing with
the question of acquisition of the religious property by the State. In this case, the
Supreme Court stated that under article 26 mosque, temple and churches are
immovable properties and it is not an essential component of religions; thus, the state
can acquire immovable properties.

LIMITATION OF THE RIGHT

 The rights conferred by Article 26 are subject to the limitation as prescribed under
Article 26 of the Constitution and not subject to any other provision of Part III of the
Constitution

ARTICLE 27
(Freedom from taxes for promotion of any particular religion)
It provides that no person shall be compelled to pay any taxes, for the promotion
or maintenance of any particular religion or religious denomination. This article
emphasises the secular character of the State. The public money collected by way
of tax cannot be spent by the State for the promotion of any particular religion.
 The reason underlying this provision is that India being a Secular State and there being
freedom of religion guaranteed by the Constitution both to individuals and groups it
is against the policy of the Constitution to pay out of public funds any money for the
promotion or maintenance of the particular religion or religious denomination.
 It is to be noted that Article 27 prohibits the levy of tax, not the imposition of Fees.

ARTICLE 28
(Prohibition of Religious Instruction in State-aided Institution)
It states that.
 No religious instruction shall be provided in any educational institution wholly
maintained out of State funds.
 Nothing in clause (1) shall apply to an educational institution which is administered by
the State but has been established under any endowment or trust which requires that
religious instruction shall be imparted in such institution.
 No person attending any educational institution recognised by the State or receiving
aid out of State funds shall be required to take part in any religious instruction that
may be imparted in such institution or to attend any religious worship that may be
conducted in such institution or in any premises attached thereto unless such person
or, if such person is minor, his guardian has given his consent thereto.
Thus, Article 28 mentions four types of educational institutions:
Institutions wholly maintained by the state.
Institutions recognised by the State.
 Institutions that are receiving aid out of the State fund
 Institutions that are administered by the State but are established under any trust or
endowment.
In the Institutions of (a) type no religious instructions can be imparted. In (b) and
(c) type institutions, religious instructions may be imparted only with the consent
of the individuals. In the (d) type institution, there is no restriction on religious
instructions.

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In Aruna Roy vs. Union of India, the Apex Court held that Article 28(1) did not prohibit
education of religion dissociated from “tenets, the rituals, observances, ceremonies and
modes of worship of a particular sect or denomination.” The Court distinguished
between “religious instructions” and of religion.” What is prohibited is the former and not
the latter. The court also held “Students should be acquainted with basics of all religions,
the values inherited therein and also a comparative study of philosophy of all religions”,
neither offends Article 28 nor brings secularism to peril.”

17. ARTICLE 29 & 30

ARTICLE 29
Protection of interests of minorities
It states that,
 Any section of the citizens residing in the territory of India or any part thereof having
a distinct language, script or culture of its own shall have the right to conserve the
same. Article 29 (1)
To claim this right, following conditions must be satisfied:
1. The right can be claimed by any section of citizens. Thus, right belonged to
citizen, not to the others.
2. Section of citizens must be residing in territory of India.
3. Section of citizens must have distinct language, script, or culture of its own.
 In D.A.V. College, Jullundur v. State of Punjab,’ the Supreme Court held that the setting
up of the Guru Nanak Dev University at Amritsar to promote and to undertake
measures for the development of Punjabi language and culture did not infringe Article
29(1). Promotion of the majority language did not mean stifling of the minority
language or script.
 No citizen shall be denied admission into any educational institution maintained by
the State or receiving aid out of State funds on grounds only of religion, race, caste,
language or any of them. Article 29 (2).
 Article 29(2) prohibits denial of admission into educational institution maintained or
aided by the State, on the ground only of religion, race, co or language or any of them.
It is, therefore, not attracted in cases where the admission is denied on a ground other
than those specified therein. P example, where seats in the educational institutions s
are reserved by the State Government based on residence or domicile or sex or on
the basis of the need of the inhabitants of that State, there would be no violation of
Article 29 (2).
Article 29(2) cannot be invoked for seeking admission into educational institutions
getting (no grants-in-aid from the State.
Difference between Article 29 (2) and Article 15(1)
 While Article 15(1) prohibits discrimination on the ground of religion, race, caste, sex
or place of birth, Article 29(2) prohibits denial of admission to educational institutions
aided or maintained by the State on the ground of religion, race, caste or language.
 Article 15(1) extends against the State, while Article 29(2) extends against the State as
well as others, i.e., educational institutions maintained by the State or those belonging
to private persons but getting grants-in-aid from the State.
 Article 15(1) protects all citizens against discrimination generally, while Article 29(2) is
a protection against particular species of wrongs, namely, denial of admission to
educational institution aided or maintained by the State.

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 Article 15(1) is more general and wider in its operation than Article 29(2). It would apply
and cover the area when Article 29(2) is not applicable. For example, the refusal to
admit someone in an educational institution on the ground of sex or place of birth
does not offend Article 29(2) but would be invalid under Article 15(1).

ARTICLE 30
Article 30(1) guarantees to all linguistic and religious minorities the ‘right to
establish’ and the ‘right to administer’ educational institutions of their choice.
Objective: To give the minorities a sense of security and a feeling of confidence not
merely guaranteeing the right to profess, practise and propagate religion to
religious minorities and the right to conserve the language, script and culture to
linguistic minorities.
The right is conferred by this clause on two types of minorities- religious and
linguistic minorities.

MINORITY
 In Kerala Education Bill case, the Supreme Court observed that while it was easy to
say the minority meant a community which was numerically less than 50% important
question was: 50% of what-the entire population of India of a State or of a part?
Without deciding the matter definitely, the Supreme Court observed minority was to
be determined only in relation to the particular legislation which was being
challenged. If it was a state law, a minority would be determined in relation to the
population of the State. Where a law passed by the State Legislature, minority for the
purpose of Articles 29 and 30 would be determined by reference to the entire
population of that State.
T.M.A. Pai Foundation v. State of Karnataka: It has been held that since the
reorganization of the States in India has been on linguistic lines, thus for the purpose of
determining the minority”, the unit will be the State and not the whole of India.
The insertion of new Entry 25 relating to ‘Education’ in List III the Seventh Schedule by
the Constitution (42nd Amendment) Act, 19 enables Parliament to legislate in relation to
“education”, with respect whole of India or group of States or even with respect to a
particular State. It is for the National commission for Minorities to determine the minority
status of a community.
Each member of the commission holds the office for three years from the date of
assumption of the office.
Composition of NCM:
1. It has seven members: A chairperson, A vice-chairperson and 5 members.
2. The members of the National Commission for Minorities are nominated by the central
government from amongst the persons of eminence, integrity and ability. Each
Member holds office for a period of three years from the date of assumption of office.
o The Act mentions an annual report, together with the memorandum of action taken
on the recommendations contained therein, as well as the reasons for non-
acceptance of the recommendations, if any, be tabled before Parliament annually.
o The NCM Act defines a minority as “a community notified as such by the Central
government.”
o Initially five religious’ communities, viz., Muslims, Christians, Sikhs, Buddhists and
Zoroastrians (Parsis) were notified as minority communities by the Union
Government. Further in 2014, Jains were also notified as another minority
community.

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o State Government constituted State Minorities Commissions in their respective

State Capitals.
3. Functions:
o Evaluating the progress of the development of minorities under the Union and
States.
o Safeguarding for minorities rights provided in the Constitution and in laws enacted
by Parliament and the state legislatures.
o Making recommendations for the effective implementation of safeguards for the
protection of the interests of minorities by the central or state governments.
o Looking into specific complaints regarding deprivation of rights and safeguards of
minorities
o Getting studies to be undertaken into the problems arising out of any
discrimination against minorities and recommending measures for their removal
Article 30(1) confers two rights on the minorities-
4. Right to establish an educational institution.
5. Right to administer an institution so established.

RIGHT TO ESTABLISH AN EDUCATIONAL INSTITUTION

The Apex Court in T.M.A. Pai Foundation vs. State of Karnataka has observed that the
expression “education” means and includes s at all levels from the primary school level
up to the post-graduate expression educational institutions”, the Court said, meant
institutions imparted education, where “education” was as understood hereinabove.
Emphasizing on the words “of their choice” in Article 30(1), the Court said that these
words indicated that even professional educational institution would be covered under
article 30. It is well settled that the right, to establish the institution under Article 30 (1)
can be claimed by persons who are residents of such State where it is established, and
such persons constitute minority in that state.
Minority Educational institution are of two types:
Unaided Minority Institutions: Court in TMA Pai vs State of Karnataka favours of
freeing the unaided minority institutions from possible interference from the relevant
University or the Government, by making it clear that the latter was forbidden from
meddling with the affairs of the former. However, the Court conceded that institutions
would have to maintain academic standards, which could ensure through prescribing
qualifications for teachers and min eligibility for students. Though, the procedure for
admission of students to unaided minority institutions could not be regulated at all by a
Sta University, but it must be transparent, and merit based.
Aided Minority Institutions: The minority educational institutions receiving
Government aid would not lose their minority character, but they would come under the
purview State regulation. In their case Articles 28 and 29(2) come into play.” In T.M.A. Pai
Foundation v. State of Karnataka, ruled that a minority institution did not cease to be a
minority educational institution, the moment it received government aid. Though, it
would be required to admit reasonable extent of non-minority students, that would not
substantially impair the rights under Article 30(1).
The right to administer the educational institution has been held to mean the right to
effectively manage and conduct the affairs of the institution That, the management of
the affairs of the institution must be free of external control, so that the founders or their
nominees, can mould the institution as they think fit and in accordance with their ideas,
of how best the interest of the community in general and the institution in particular, will
be served.

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Though, the right conferred by Article 30(1), strictly, may not be subject reasonable
restrictions, it is as well that the right is not absolute. The majority of the Supreme Court
in T.M.A. Pai Foundation v. State of Karnataka, held that any regulation framed in the
national interest or for the welfare of the students and teachers, must necessarily apply
to all institutions, whether run by the majority or the minority.
The right conferred by this Article had been held subject to laws of the and pertaining to
health, morality, and standards of education.
Facets of Article 30 (1)
1. Right to choose Principal:
2. Right to take Disciplinary action:
3. Right to select students for admission: The right to regulate admission of dents to
educational institutions so established, is an essential facet of the right to administer
the institution. Therefore, any regulation which interferes with this right would be
violative of Article 30(1), unless it is imposed for making the institution an effective
vehicle of education for the minority community or other persons, who resort to it.
St. Stephen’s College vs. University of Delhi: A Circular issued by the University
required that admission to B.A. Courses in all Colleges affiliated to D University, would
be based on the merit of percentage of marks secured students in the qualifying
examination. The Supreme Court by majority of 4 to 1 ruled that the St. Stephen
College was not bound to follow the University Circular as it would deprive the College
of its minority character. The Court also, held that the minority aided educational
institutions might reserve 50%per cent seats for their community candidates and they
should make available at least 50 per cent seats to other community candidates to be
filled purely on the basis of merit. However, the minority educational institutions
cannot adopt their own method of selection to fill 50 per cent seats belonging their
community students.
 P.A Inamdar case: Follow the principle of Triple test while selection: Fairness,
Transparency and non-exploitation of students.
Right to impart religious instruction: The Calcutta High Court in Association of
Teachers of A.
I. School v. Association of Aids of A.I. School, held that it could not be disputed that the
right
of a religious minority to impart religious instructions in their educational institution
formed part of the right to administer the institution. But this right is curtailed by Article
28(3) and that the right should be read subject to implied limitations under Articles 29(2),
15(4) and 28(3). It would thus mean that the moment the minority institution receives
Government aid, Articles 28(3) and 29(2) would come into play.
Distinctions between Article 29(1) and 30(1)
 While Article 29(1) confers right on any section of the citizens which will include the
majority section, Article 30(1) confers the right only on minorities based on religion or
language.
 While Article 29(1) is concerned with only three subjects, i.e, language, script or culture,
Article 30(1) deals with minorities based on language or religion.
 While Article 29(1) is concerned with the right to conserve language, script or culture,
Article 30(1) deals with the right of minorities to establish and administer educational
institutions of their choice.
 While Article 29(1) does not deal with education as such, Article 30(1) deals only with
educational institutions.

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 Article 30(1) and Article 26(a)- Compared: It may be noted that both Articles 30(1)
and 26(a) secure the right to establish educational institutions. To this extent,
they overlap. However, they fer in the following respect:
 Firstly, while Article 26(a) secures the right to establish institutions to the majority as
well as minority communities, Article 30(1) secures that right to the minorities,
religious as well as linguistic.
 Secondly, while Article 26(a) prefers only to religious denominations, Article 30(1)
contains the right of religious as well as linguistic minorities.
 Thirdly, while Article 26(a) says of the right of a religious denomination to maintain the
institution/established by them, Article 30(1) secures the right to a minority to
administer their institution.
Fourthly, while the right secured by Article 26(a) is subjected to public order, morality and
health, Article 30(1) does not specifically state that the right under Article 30(1) is
subjected to any such conditions. It has, however, been held that the right under Article
30(1) is not so absolute as to be above the law. It, thus, cannot be disputed that Article
301) is subject to the general laws and the laws made in the national interest.
Saving of certain Laws: (Article 31A, 31 B, 31C)
The Sub-heading “Saving of Certain Laws” was inserted after Article 31 by the
Constitution (Forty-second) Amendment Act, 1976. Under Sub-heading fall Articles
31-A, 31-B and 31-C, which provide immunity certain laws from challenge on the
ground of violation of the fundamental rights conferred by Article 14 or 19.
Saving of Laws Providing for Acquisition of Estate (Article 31A)
The object of the introduction of Article 31-A was to validate the acquisition of
zamindaries or the abolition of the Permanent Settlement without interference
from the Courts. It was aimed at removing social and economic disparities in the
agriculture sector. It was to make the constitutional ideal of equal justice a living
truth.
 Article 31A(1)(a): Saves laws, providing for “the acquisition by the State of any estate
or of any rights therein or the extinguishment or modification of any such rights. The
object of Article 31-A is to facilitate agrarian reforms. Hence, the protection is not
applicable to a law which seeks to modify the right of the owner without any reference
to agrarian reforms.
 Article 31A(1)(b): Article 31-A protects a law providing for the taking over the
management of any property by the State for a limited period either in the public
interest or in order to secure the proper management of the property.
 Article 31A(1)(c)(d): Protects a law providing for the amalgamation of two or more
corporations either in the public interest or in order to secure the proper
management of any of the corporations The object is to facilitate the elimination of
unhealthy competition between rival concerns where such action is needed in the
public interest. Sub-clause (d) of Clause (1) of Article 31-A protects laws providing
public. the extinguishment or modification of any rights of managing a secretaries and
treasurers, managing directors, directors or managers corporations or of any voting
rights of shareholders thereof. The object behind Sub-clauses (c) and (d) of Article 31A
(1) was explained in Daman Singh vs. State of Punjab : The reforms in company law
like the progressive elimination of the managing agency system, provision for the
compulsory amalgamation of two or more companies in the national interest, the
transfer of an undertaking from one company to another etc., required to be placed
above challenge. The word “corporation” in Article 31-A (1) (c) has been held to
including cooperative societies registered under the Cooperative Societies Act.

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 Article 31A(1)(e): saves laws providing for the extinguishment or modification of any
rights accruing by virtue of any agreement, lease or licence for the purpose of
searching for, or mineral or mineral oil or the premature termination or cancellation
of any such agreement, lease or licence”.

VALIDATION OF CERTAIN ACTS AND REGULATIONS (ARTICLE 31 B)

It states that the acts which are present in the ninth schedule and are inconsistent
with the provisions laid down by the constitution or resist any decree or order will
be left on the competent legislature to amend, revoke or to let it be in force.
Anything contained in this Article does not undermine any provision contained in
Article 31A.
It protects the acts and regulations included in the Ninth Schedule from being
challenged and invalidated on the ground of contravention of any of the
fundamental rights.
 The scope of Article 31B is wider than Article 31A as it immunises any law included in
the Ninth Schedule from the Fundamental Rights (unlike article 31A that protects only
five categories).
 However, the Supreme Court in its judgement in the I.R. Coelho case (2007) ruled that
even laws under the Ninth Schedule would be open to scrutiny if they violated
Fundamental Rights or the basic structure of the Constitution.
 The Supreme Court first propounded the doctrine of ‘basic structure’ of the
constitution in the Kesavananda Bharati on April 24, 1973.

SAVING OF LAWS GIVING EFFECT TO CERTAIN DIRECTIVE PRINCIPLES ARTICLE 31 C

This Article was added by the Constitution (25th Amendment) Act, 1971. It states
that, “Notwithstanding anything contained in Article 13, no law giving effect to
the policy of the state towards securing all or any of the principles laid down in
Part IV shall be deemed to be void on the ground that it is inconsistent with, or
takes away or abridges any of the rights conferred by Article 14 or Article 19 and
no law containing a declaration that it is for giving effect to such policy shall be
called in question in any court on the ground that it does not give effect to such
policy.”
History behind Article 31C
This article was inserted by 25th Constitutional Amendment to get over difficulties
placed by judicial decisions in the way of giving effect to Directive Principles in Part IV. It
provided immunity from any challenge on the grounds of violation of Article 14, 19 and
31 any law enacted for implementing the directives in clause (b) and (c) of Article 39. In
25th Amendment it was further provided that such law made to give effect to the policy
under Article 39(b) and (c), would not be open to judicial review.
However, this second part was struck down in Kesavananda Bharati v State of Kerala,
but rest of the Article was held valid. After this amendment 42nd Constitutional
Amendment Act was passed by Parliament which replaced Article 39(b)-(c) by all
Directives contained in Part IV of Constitution. The part which was held unconstitutional
in the Kesavananda Case was not omitted from the official text of the Constitution, since
later cases seem to restrict the scope of judicial review of the statutory declaration only
to the narrow question whether there is a reasonable nexus between the act passed and
the objects of the directive it seeks to implement. But in Minerva mills v Union of India,
it was held that extending the immunity of Article 31C to all the Directives of Part IV by
the 42nd amendment was unconstitutional, thus, Article 31C is confined to its pre 1976
position, which has not been overruled by any larger bench yet.

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DECISIONS GIVEN BY COURT ON THE CONSTITUTIONALITY OF ARTICLE 31C

Validity of 25th Constitutional Amendment was questioned in Kesavananda Bharati v
State of Kerala, Sikri C.J. held that since Parliament cannot under article 368 abrogate
fundamental rights; equally it cannot enable the legislature to abrogate them. Therefore,
Article 31C must be declared unconstitutional. Second part of Article 31C was held
unconstitutional on the ground that it ousted the jurisdiction of the Courts which is a
basic feature of the constitution, and which cannot be done away with an amendment
under Article 368.
Minerva Mills Ltd. v. Union of India : Extended version of Article 31C was struck down
by the Supreme Court. The Court ruled that the extension of the shield of article 31C to
all the Directive Principles was beyond the amending power of Parliament under article
368 because by giving primacy to all Directive Principles over the Fundamental Rights in
articles 14 and 19, the basic or essential features of the constitution viz., judicial review
has been destroyed.
I.R. Coelho v. State of Tamil Nadu : Supreme Court held that any law which infringes
basic structure of the Constitution can be struck down. Parliament has power to amend
Part III so as to abridge or take away fundamental rights, but that power is subject to the
limitation of basic structure doctrine. There should be a balance between fundamental
rights and Directive Principles of State Policy.
Conditions for applicability of Article 31C
There are two conditions which must be fulfilled for the application of Article 31-C
 A law for giving effect to the policy of the state to implement a Directive Principle in
Article 39(b) or (c).
 The Legislature made a declaration to that effect.
But the question of whether the act is intended to secure the object contained in
Article 39(b)-
(c) does not depend upon the declaration made by the legislature but upon the
contents of the act as found by the court.

18. ARTICLE 32-35

ARTICLE 32
(CONSTITUTIONAL REMEDIES FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS)
 It is one of the fundamental rights listed in the Constitution that each citizen is entitled.
Article 32 deals with the ‘Right to Constitutional Remedies’. It affirms the right to move
the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred in Part III of the Constitution. It states that the Supreme Court “shall have
power to issue directions or orders or writs including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari. The right guaranteed by
this Article “shall not be suspended except as otherwise provided for by this
Constitution”.
The very soul of the constitution and the very heart of it
 Article 32(1) : Guarantee to remedy
 Article 32(2) : Power of supreme court to issue writs
 Article 32(3) : Power of parliament to confer the power to issue writs to other courts
 Article32(4) : Suspension of Fundamental Rights

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Significance
 Article 32 affirms the right to move the Supreme Court if a fundamental right is
violated.
 The essence of justice lies in Rule of law i.e. supremacy of law
 Ensured by Supreme Court, High Court and lower courts

POWER OF PARLIAMENT TO ENLARGE WRIT JURISDICTION OF THE SUPREME COURT

 The Parliament, under Article 139, may by law confer on the Supreme Court power to
issue directions, orders or writs including writs of habeas corpus, mandamus,
prohibition, quo-warranto and certiorari, or any of them, for any purposes other than
those mentioned in Clause(2) of Article 32.
 The writ jurisdiction of the High Court is wider than the writ jurisdiction of the Supreme
Court. The Supreme Court has power to issue writs only for the purposes of
enforcement of fundamental rights whereas the High Court has the power to issue
writs for the purposes of enforcement of fundamental rights and also for any other
purposes.
 For giving similar jurisdiction to the Supreme Court, the need is for a law made by the
Parliament and there is no need for an amendment of the Constitution.

WRITS:
Writs are a written order from the Supreme Court or High Court that commands
constitutional remedies for Indian Citizens against the violation of their
fundamental rights. The supreme court and High courts have the power to issue
writs in the nature of habeas corpus, quo warranto, mandamus, certiorari,
prohibition, etc., under Arts. 32 and 226 respectively.
 Borrowing from Britain: Constitutional writs have been borrowed in India from the
British Constitution where they are known as ‘Prerogative writs’.
 Before 1950, only the high courts of Bombay, Madras and Calcutta could issue writs.

HABEAS CORPUS
 About: The Latin meaning of the word Habeas corpus is ‘To have the body of.’ This
protects the Fundamental Right of individual liberty against illegal detention.
 Reason for Issuing Habeas Corpus Writ: The Habeas Corpus writ is issued by the
Supreme Court/High Court.
 Under Habeas Corpus Writ, SC/HCs orders one person who has arrested another
person to bring the body of the latter before the court.
Scope: It can be issued by the SC/HCs against both private and public authorities. Habeas
Corpus Writs cannot be issued in the following situations-
 When detention is lawful
 When the proceeding is for contempt of a legislature or a court
 Detention is by a competent court.
 Detention is outside the jurisdiction of the court.

CASE LAWS
Hadiya Case: A unique Case of Habeas Corpus Background of the case Hadiya is a 24-
year student of homoeopathy from Kerala who converted to Islam before getting
married to Shefin Jahan, a Muslim man.
 In early 2016, her father initially filed a missing person report with the police and later
filed a Habeas Corpus petition in the Kerala High Court to trace her.
 Shefin Jahan is on the National Investigation Agency (NIA) radar.
 Both NIA and Hadiya’s father claimed Jahan was a recruiter for radical groups.

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After the petition and on NIAs report to the Supreme Court which stated that Hadiya
was a victim of indoctrination and psychological kidnapping i.e. she was brainwashed
to accept Islam and marry Jahan, the Kerala High Court annulled the marriage.
 This case was popularised by the Indian media as a case of love jihad.
 A plea was filed by Hadiya’s husband. The Supreme Court bench comprising Justices
A M Khanwilkar and D Y Chandrachud examined the plea.
 On January 23, 2018, the judges proclaimed the decision that no one including the SC
can question Hadiya’s choice of marrying a person and that the NIA cannot investigate
whether she married a good person or a bad person.
 When it was stated that “Marriage is only a device to legitimise her illegal
confinement,” the Supreme Court said that “Who is the person to tell the court? She
must say. She is an adult. She appears in court and says she is married. What can the
court do?”
 Thus, the court alienated itself from questioning Hadiya’s choice for a husband.

MANDAMUS
 About: Mandamus means ‘We Command’. The SC/HCs issue Mandamus writs to order
the public official who has failed to perform his duty or refused to do his duty.
 Mandamus Writ is issued by the courts to force public authorities to resume their
work.
 Mandamus Writ is issued by courts to direct a public authority to do its duty.
Scope: Besides public officials, Mandamus can be issued against any public body, a
corporation, an inferior court, a tribunal, or government for the same purpose.
 Mandamus Writ cannot be issued against Private individuals (unlike Habeas Corpus).
 Mandamus Writ can’t be issued in the following situations-
 For enforcing departmental instruction that does not possess statutory force
 For ordering someone to work when the kind of work is discretionary and not
mandatory For enforcing a contractual obligation
 Mandamus writ can’t be issued against the Indian President or State Governors
 Mandamus writ can’t be issued against the Chief Justice of a High Court acting in a
judicial capacity.
Note: Mandamus is a discretionary remedy and High Courts may refuse to grant
it where some alternate remedy is available.
 However, in the matters of enforcement of Fundamental Rights, the availability of an
alternative remedy does not weigh so much.
 It is issued when one or the other organisation from Judiciary, Executive or Legislature
refuses to exercise its jurisdiction. If S.H.O of as particular Police Station refuses to
arrest a criminal politician accused of rape or other heinous crime.
 High Courts can issue these writs even for violation of Ordinary rights.
 Mandamus can be issued even negatively, to direct a public official not to implement
a law which is unconstitutional. So, Mandamus works both ways: Positively as well as
negatively
 The Courts are normally reluctant to issue any direction to Govt. for making a Law
Recently former Law Minister moved S.C. to issue directions to Govt. to enact a Law
against Torture. But S.C. refused.

PROHIBITION
 About: Literally, it means ‘to forbid’. [negative connotation] Prohibition writ directs
inactivity on the part of lower judicial courts.

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 Mandate of ‘Prohibition’: It is issued by a higher court against a lower court to prevent

the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not
possess.
 Scope: Prohibition writ can only be issued against judicial and quasi-judicial
authorities.
 Prohibition Writ can’t be issued against administrative authorities, legislative bodies
and private individuals or bodies.
Thus, unlike the mandamus that directs the activity, the prohibition directs inactivity.

CASE LAWS

MINISTERS NOT UNDER RTI: DELHI HIGH COURT

 The Delhi High Court has set aside the Central Information Commission (CIC) order
declaring ministers as “public authorities” under the transparency law.
 Delhi High Court overturned the 2016 order of the CIC, declaring the “ministers in the
Union Government and all State Governments as public authorities” under the Right
to Information (RTI) Act.
 Clarifying its stance, H.C. said that there was no occasion for the CIC to enter upon the
question as to whether a Minister is the public authority under the Section 2(h) of the
Act. Further, directions which are issued by the CIC are also wholly outside the scope
of the matter before CIC.
Analysis: CIC directive that ministers were answerable under the RTI Act would
mean that people can directly send the questions to a minister by filing an RTI
application which will be answered by the public information officer in his office.
The case emanates from the application filed by a man in 2014 before the
Additional Private Secretary, Minister of Law and Justice seeking to know the time
period of minister or minister of state meeting the general public.

CERTIORARI
 About: Certiorari meaning ‘To be certified’ or ‘To be informed.’ power of the higher
court to remove a proceeding from a lower court and bring it before itself.
Grounds for issuing Certiorari Writ: The Writ of Certiorari is issued on the following
grounds-
 An excess of jurisdiction or
 Lack of jurisdiction or
 An error of law.
 Mandate of Certiorari Writ: It is issued by a higher court (in authority) to a lower court
or tribunal ordering them-
 Either to transfer a case pending with them to itself or
 Quash the order of the lower court in a case.
Scope:
Initially, Certiorari Writ was issued only against judicial and quasi-judicial authorities.
However, in the year of 1991, the Supreme Court ruled that the certiorari can be issued
even against administrative authorities affecting the rights of individuals.
 Like prohibition, certiorari is also not available against the legislative bodies and also
the private individuals or the bodies.

QUO WARRANTO
 About: Literal meaning of ‘Quo-Warranto’ is ‘By what authority or warrant.’ It reviews
the actions of the administrative authorities who make the appointments to the public
offices.

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 The court enquiries into the legality of a claim of a person to a public office using the
writ of ‘Quo-Warranto’.
 Grounds for issuing Quo-Warranto: This writ is issued by the court to public officials
to enquire about what authority they hold in public office.
Scope:
 The Writ of Quo-Warranto can be invoked only when the substantive public office of
a permanent character created by a statute or by the Constitution is involved.
 The Writ of Quo-Warranto is not available against the private or ministerial office.
 Unlike the other four writs, this can be sought by any interested person and not
necessarily by the aggrieved person.
Difference between Writ of Prohibition & Certiorari
 A writ of prohibition is used to prevent an inferior court or tribunal to proceed the trial
in excess of its jurisdiction whereas a writ certiorari is issued to quash the order of an
inferior court or tribunal in excess of jurisdiction.
 A writ of prohibition is used before the order is passed by the court whereas a writ of
certiorari is used to nullify an order already passed by the court.
Prohibition can be issued only against judicial and quasi-judicial authorities whereas
Certiorari can be issued even against administrative authorities affecting rights of
individuals.

Meaning of
Type of Writ Purpose of issue
the word
You may
Habeas To release a person who has been detained
have the
Corpus unlawfully whether in prison or in private custody.
body
We To secure the performance of public duties by lower
Mandamus
Command court, tribunal or public authority.
To be To quash the order already passed by an inferior
Certiorari
certified court, tribunal or quasi judicial authority.
To prohibit an inferior court from continuing the
Prohibition proceedings in a particular case where it has no
jurisdiction to try.
Quo What is your To restrain a person from holding a public office
Warranto authority? which he is not entitled.

ARTICLE 33
(Restrictions on Fundamental Rights of Members of Armed Forces)
It is an exception to the fundamental rights conferred by Part III of the Constitution. This
Article empowers the Parliament to restrict or abrogate by law fundamental rights in the
application to
 Members of the armed forces
 Forces charged with the maintenance of public order
The 50th Amendment Act amended Article 33 and extended its scope by including
two more categories of persons connected with armed forces whose fundamental
rights could be restricted by Parliament by law. It now includes also:
 The persons employed in any bureau or other organisation established by the State
for purposes of intelligence.

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 Persons employed in connection with the tele-communication system setup for

purposes of any Force, bureau or organisation referred to in clauses (a) to (c )of Article
33 of the Constitution.
Object of this restriction under this Article is to ensure the proper discharge of their
duties and maintenance of discipline amongst them.
This article is an exception to the operation of Article 13, clause (2) which prohibits taking
away or abridgement of the rights guaranteed by Part III of Constitution. Hence, a law
passed under Article 33 cannot be challenged under Article 13, clause (2).
Note: Power under Article 33 is only exercisable by Parliament and not by State
Legislatures.

ARTICLE 34
(Restriction of Fundamental Rights while Martial Law is in force in any area)
Article 34 provides that Notwithstanding anything in the foregoing provisions of
this Part, Parliament may by law indemnify any person in the service of the Union
or of a State or any other person in respect of any act done by him in connection
with the maintenance or restoration of order in any area within the territory of
India where martial law was in force or validate any sentence passed, punishment
inflicted, forfeiture ordered or other act done under martial law in such area.
It offers an indemnity to members of armed forces of those (civil authorities or police)
connected with the maintenance or restoration of order within India for all acts done
within an area where Martial law was in force. So, an act of indemnity passed by
Parliament cannot be challenged on the ground that it violates fundamental rights.
This power of Parliament is, subject to two restrictions:
 The act must be done for the maintenance of restoration of order
 Martial law was in force in the area where the act was done

MARTIAL LAW
 Not described in the Indian Constitution.
 Martial law in simple words is defined as the suspension of ordinary law and the
government of the country or part of it by Military Tribunals.
 It is imposed under extraordinary circumstances like war, invasion, insurrection,
rebellion, riot or any violent resistance to law to repel force by force for maintaining
or restoring order in the society.
 Abnormal powers, including imposing restrictions and regulations on the rights of the
civilians, can punish the civilians and even condemn them to death. The Supreme
Court held that the declaration of martial law does not ipso facto result in the
suspension of the writ of habeas corpus.
The question is- Under what Article of the Constitution the Executive can declare
Martial law, and secondly whether the Presidential Order under Article 359(1)
amounts to declaration of Martial law.

CASE LAW
In A.D.M. Jabalpur vs Shivakant Shukla,1976 case, SC held that, there is no express
provision in the Indian Constitution which confers power on the Executive to declare
Martial Law. However, it is implicit in the text of Article 34 of the Constitution under which
Martial Law can be declared in any area within the territory of India.

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8
DIRECTIVE PRINCIPLES
Chapter OF STATE POLICY
TOPICS TO BE COVERED
1. Directive Principles of State Policy
2. Classification of DPSP (Directive Principles of State Policy)
3. Amendments in DPSP (Directive Principles of State Policy)
4. Conflicts Between Fundamental Rights & DPSP: Associated Cases
5. Implementation of DPSP: Associated Acts & Amendments
6. Criticism of DPSP (Directive Principles of State Policy)
7. NCRWC Recommendations

1. DIRECTIVE PRINCIPLES OF STATE POLICY

 Source of the concept of Directive Principles of State Policy (DPSP) is the Spanish
Constitution from which it came in the Irish Constitution.
 Concept of DPSP emerged from Article 45 of Irish Constitution.

OBJECT AND PURPOSE BEHIND DPSP

Preamble sounds the solemn resolve of the people of India, to secure to all its
citizens justice-social, economic and political, liberty of thought expression, belief,
faith and worship. It speaks to secure to all citizens equality of status and of
opportunity, and to promote among them all fraternity, assuring the dignity of the
individual and the unity and integrity of the Nation. The intention of the Makers,
therefore, was to establish in India a democracy-political, economic and social.
To achieve this cherished goal, the framers were unanimous to secure the people
practically all the prevailing political, social and economic rights.
The rights were, broadly speaking, divided into two categories: (i) Political Civil Rights;
and (ii) Social and Economic Rights. The former rights which were, in their opinion, within
the reach of the individual was provisioned as Fundamental Rights and the latter being
considered beyond individual’s reach under the prevailing circumstances, we titled as
Directive Principles of State Policy.
Dr. BR Ambedkar, explaining the object underlying the Directive: While we have
established political democracy, it is also the desire that we should lay down our ideal
economic democracy. We do not want merely to lay down a mechanism to enable people
to come and capture power. The Constitution also wishes to lay down an ideal before
those who would be forming the Government. That ideal is economic democracy,
whereby, so far as I am concerned, I understand to mean one man one vote.
Mr. Justice Hegde explained that Directive Principles proceeded on the basis of human
rights. Representative democracies will have no meaning without economic and social
justice to the common man. It is thus social and economic justice which is required to be
achieved by the incorporation of the Directive Principles of State Policy.
Constitutional Provisions:
 Part IV of the Constitution of India (Article 36–51) contains the Directive Principles of
State Policy (DPSP).

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 Article 37 of the Indian Constitution States about the application of the Directive
Principles.
 These principles aim at ensuring socioeconomic justice to the people and establishing
India as a Welfare State.

FUNDAMENTAL RIGHTS VS DPSP

 Unlike the Fundamental Rights (FRs), the scope of DPSP is limitless and it protects the
rights of a citizen and works at a macro level.
 DPSP consists of all the ideals which the State should follow and keep in mind while
formulating policies and enacting laws for the country.
 Directive Principles are affirmative directions on the other hand, Fundamental Rights
are negative or prohibitive in nature because they put limitations on the State.
 The DPSP is not enforceable by law; it is non-justiciable.
 It is important to note that DPSP and FR go hand in hand.
 DPSP is not subordinate to FR.

2. CLASSIFICATION OF DPSP (DIRECTIVE

PRINCIPLES OF STATE POLICY)
Directive Principles are classified on the basis of their ideological source and
objectives.
These are Directives based on:
 Socialist Principles
 Gandhian Principles
 Liberal and Intellectual Principles
Directives based on Socialist Principles
Article 38
The State shall strive to promote the welfare of the people by securing and protecting a
social order by ensuring social, economic, and political justice and by minimising
inequalities in income, status, facilities and opportunities.
Articles 39
The State shall, direct its policies towards securing:
 Right to an adequate means of livelihood to all the citizens.
 The ownership and control of material resources shall be organised in a manner to
serve the common good.
 The State shall avoid concentration of wealth in a few hands.
 Equal pay for equal work for both men and women.
 The protection of the strength and health of the workers.
 Childhood and youth shall not be exploited.
 Article 41: To secure the right to work to education and to public assistance in cases
of unemployment, old age, sickness and disability.
Article 42
 The State shall make provisions for securing just and humane conditions of work and
for maternity relief.
 Article 43

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 The State shall endeavour to secure to all workers a living wage and a decent standard
of life.
 Article 43A: The State shall take steps to secure the participation of workers in the
management of industries.
 Article 43B: The 97th amendment introduced Part IX B of the Constitution, Article 43
B to DPSP and Article 19(1)(c) in Fundamental Rights.

PROVISIONS
243ZH. Definitions.
1. “Board” means the board of directors or the governing body of a co-operative society,
by whatever name called, to which the direct and control of the management of the
affairs of a society is entrusted to.“
2. Co-operative society” means a society registered or deemed to be registered under
any law relating to co-operative societies for the time being in force in any State“
3., Multi-State co-operative society” means a society with objects not confined to one
State and registered or deemed to be registered under any law for the time being in
force relating to such co- operatives.
4. “Officer bearer” means a President, Vice-President, Chairperson, Vice-Chairperson,
Secretary or Treasurer of a co-operative society and includes any other person to be
elected by the board of any co-operative society.
5. “Registrar” means the Central Registrar appointed by the Central Government in
relation to the multi-State co-operative societies and the Registrar for co-operative
societies appointed by the State Government under the law made by the Legislature
of a State in relation to co-operative societies.
243ZJ: Number and term of members of board and its office bearers.
1. The board shall consist of such number of directors as may be provided by the
Legislature of a State, by law:
Provided that the maximum number of directors of a co-operative society shall not
exceed twenty-one.
Provided further that the Legislature of a State shall, by law, provide for the
reservation of one seat for the Scheduled Castes or the Scheduled Tribes and two
seats for women on board of every co-operative society consisting of individuals as
members and having members from such class or category of persons.
2. The term of office of elected members of the board and its office bearers shall be five
years from the date of election and the term of office bearers shall be conterminous
with the term of the board.
3. The Legislature of a State shall, by law, make provisions for co-option of persons to be
members of the board having experience in the field of banking, management, finance
or specialisation in any other field relating to the objects and activities undertaken by
the co-operative society, as members of the board of such society 243ZK. Election of
members of board.
1. The election of a board shall be conducted before the expiry of the term of the board
so as to ensure that the newly elected members of the board assume office immediately
on the expiry of the office of members of the outgoing board.
2. The superintendence, direction and control of the preparation of electoral rolls for,
and the conduct of, all ejections to a co-operative society shall vest in such an authority
or body, as may be provided by the Legislature of a State, by law:

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243ZL. Supersession and suspension of board and interim management.

1. No board shall be superseded or kept under suspension for a period exceeding six
months.
2. However the board may be superseded or kept under suspension in case of its
persistent default; or of negligence in the performance of its duties.
the board has committed any act prejudicial to the interests of the co-operative society
or its members; or
there is stalemate in the constitution or functions of the board; or the authority or body
as provided by the Legislature of a State, by law, under clause (2) of Article 243K has
failed to conduct elections in accordance with the provisions of the State Act
243ZM. Audit of accounts of co-operative societies.
Legislature of a State may, by law, make provisions with respect to the maintenance of
accounts by the co-operative societies and the auditing of such accounts at least once in
each financial year.
Legislature of a State shall, by law, lay down the minimum qualifications and experience
of auditors and auditing firms that shall be eligible for auditing accounts of the co-
operative societies.
243ZN. Convening of general body meetings.
Legislature of a State may, by law, make provisions that the annual general body meeting
of every co-operative society shall be convened within a period of six months of close of
the financial year to transact the business as may be provided in such law.

243ZO. Right of a member to get information.

Legislature of a State may, by law, provide for access to every member of a co-
operative society to the books, information and accounts of the co-operative society
kept in regular transaction of its business with such member.
243ZP. Returns.
Every co-operative society shall file returns, within six months of the close of every
financial year, to the authority designated by the State Government.
243ZQ. Offences and penalties.
Legislature of a State may, by law, make provisions for the offences relating to the co-
operative societies and penalties for such offences.
243ZS. Application to Union territories.
The provisions of this Part shall apply to the Union territories.
However, the President may, by notification in the Official Gazette, direct that the
provisions of this Part shall not apply to any Union territory or part thereof as he may
specify in the notification.

Part IX B defining powers of the state legislature and the Centre to regulate incorporation,
elections and governing of these cooperative societies. For multi-state cooperatives and
Union Territories, Parliament has the power to issue regulations. Part IXB was challenged
on the ground that the provisions in the Amendment, passed by Parliament without
getting them ratified by State legislatures as required by the Constitution.
SC Ruling:
Part IX B, which consists of Articles 243ZH to 243ZT, has “significantly and substantially
impacted” State legislatures’ “exclusive legislative power” over its co-operative sector
under Entry 32 of the State List.

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It held that the 97th Constitutional Amendment required ratification by at least one-half
of the state legislatures as per Article 368(2) of the Constitution, since it dealt with an
entry which was an exclusive state subject (co-operative societies).
It did not strike down the portions of Part IXB of the Amendment concerning ‘Multi
State Co-operative Societies (MSCS)’ due to the lack of ratification.
When it comes to MSCS with objects not confined to one State, the legislative power
would be that of the Union of India which is contained in Entry 44 List I (Union List).
It is declared that Part IXB of the Constitution is operative only insofar as it concerns
multi-State cooperative societies both within the various States and in the Union
Territories.
Recently, the government has set up Ministry, it will help realise the vision of
“Sahkar se Samriddhi”, which roughly translates as “Prosperity through
Cooperation”. The key objectives of the Ministry of Cooperation are as follows:
 To provide a unique administrative, legal and policy framework for strengthening the
cooperative movement in the country.
 To deepen cooperative movement as a true people-based movement that will be able
to reach citizens at the grassroots.
 To streamline processes for ‘Ease of Doing Business’ for cooperatives and enable
development of MSCs in India.
What are the challenges the new Ministry will have to face?
Ministry will have to first sort out the issue like:
 Non-Accountability: There was no competition, they became more and more costly,
they were not at all efficient and the worst part was that the government allowed them
to function like this and pass on the burden of costs to consumers.
 Vested Interest: Conflicting of personal interests with the interest of the cooperatives
now this affects the performance of the cooperatives in a negative way.
 Lack of coordination: Generally what happens in cooperatives is that different
cooperatives at different levels don’t coordinate this makes the work of cooperatives
difficult. Coordination is the key to success in any organization. The best example for
this is AMUL which works best because of coordination.
 Internal Free Rider Problem: This problem arises when new members who provide
very little capital enjoy the same benefits as long-standing or founding members who
have major investments.
 No Balanced Growth: The cooperatives in northeast areas and in areas like West
Bengal, Bihar, Orissa are not as well developed as the ones in Maharashtra and the
ones in Gujarat. There is a lot of friction due to competition between different states,
this friction affects the working of cooperatives.
 Political Interference: This is the biggest problem of cooperatives as politicians use
them to increase their vote bank. They also get their own favourites on the boards of
such boards, so they are in control of these cooperatives.
Article 47
 To raise the level of nutrition and the standard of living of people and to improve
public health.
Directives based on Gandhian Principles
Article 40
 The State shall take steps to organise village panchayats as units of Self Government

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Article 43
 The State shall endeavour to promote cottage industries on an individual or
cooperative basis in rural areas.
 Article 43B: To promote voluntary formation, autonomous functioning, democratic
control and professional management of cooperative societies.
Article 46
 The State shall promote educational and economic interests of the weaker sections of
the people particularly that of the Scheduled Castes (SCs), Scheduled Tribes (STs) and
other weaker sections.
Article 47
 The State shall take steps to improve public health and prohibit consumption of
intoxicating drinks and drugs that are injurious to health.
Article 48
 To prohibit the slaughter of cows, calves and other milch and draught cattle and to
improve their breeds.
Directives based on Liberal-Intellectual Principles
Article 44
 The State shall endeavour to secure for the citizen a Uniform Civil Code through the
territory of India.
 Uniform Civil Code
Uniformity across all the communities in the matter of Marriage, divorce,
Inheritance and succession.
[Article 44 ensures this.]
Debate in Constituent Assembly:
 Mohammad Ismail: Any interference with the personal laws, in his view, would
tantamount to interference with the very way of life of those who had been observing
such laws from generation to generation.
 K.M. Munshi: European countries had uniform laws applied even to minorities.
Religion should be divorced from personal law.
 Dr B R Ambedkar: Defended the right of the state to interfere in the personal laws of
different communities. He persuaded the Muslim members ‘not to read too much into
Article 44′.
Portuguese Civil code:
Allows equal division of Income and Property between Husband and wife.
Every Birth, marriage and death have to be compulsorily registered.
Need of UCC:
 National Integration: UCC will separate religion from social relation, ensuring equality.
 Gender Justice: Islamic law prescribes a man’s share of inheritance is double that of
women.
 Freedom of Choice: Ex- Right to marriage for youth.
 Simplification of Laws: The code will simplify the complex laws around marriage
ceremonies, inheritance, succession, adoptions.
Challenges:
 Considered against Secularism.
 Political challenges: UCC Reduced to debate between Majority vs Minority.

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 Constitutional Challenges: UCC is considered against Article 25.

 Plurality and Diversity
Supreme Court on UCC:
 Shah Bano Case: The Supreme Court found in her favour under the All India Criminal
Code’s”maintenance of spouses, children, and parents” provision (Section 125), which
applied to all citizens regardless of religion. However, government came under
pressure and passed Muslim women act and said Section 125 does not apply to
Muslims.
 Daniel Latifi Case: The Muslim Women’s Act (MWA) was challenged on the grounds
that it infringed on Articles 14 and 15, Article 21 of the Constitution. SC uphold the law
but said sum received by a woman during the iddah time should be sufficient to
maintain her throughout the iddah period as well as provide for her future.
 Shyara Bano case: Triple Talaq was considered unconstitutional.
 Sarla Mudgal Case: Converting to Islam and remarrying would not automatically
invalidate the Hindu marriage under the act, hence a second marriage solemnized
after converting to Islam would be illegal under section 494 of the IPC.
Law Commission Recommendation: Amendments to existing family laws to tackle
discrimination and inequality in personal laws, rather than do away with differences
between them altogether.
Reform in Hindu Religion:
1. Compulsory registration of marriages: This can be introduced by an amendment to
the Registration of Births and Deaths Act.
2. Community of Property upon Marriage and Divorce: Both spouses should be equally
entitled to property acquired after marriage.
3. Bigamy upon Conversion: Such second marriages enabled by conversion should be
made void.
4. Deletion of thirty-day notice period under the Special Marriage Act, 1954: This time
period is often misused by disapproving kin to discourage the marriage.
Reform in Islam: Codified Inheritance Law: Applicable to both the Sunnis and the Shias
may be formulated for the sake of clarity. This would entail abolition of the Muslim
Personal Law (Shariat) Application Act,1937.
Adultery should be introduced as a ground for divorce through an appropriate
amendment to the Dissolution of Muslim Marriage Act, 1939.
The Nikah Nama itself should make it clear that polygamy is a criminal offence.
Reform in Parsi Law:
Ostracization on Marriage with outsider: Under the present system, Parsi women who
marry outside the community are expelled from the community.
Reform in Christianity:
Divorce: The period for confirmation of a decree of divorce is significantly longer than for
the couples of other religions
Conclusion: Issue of UCC should not be the part of electoral manifesto, rather than the
nuanced debates amongst judges, parliamentarians and academicians are required.
Article 45
To provide early childhood care and education for all children until they complete the
age of six years.
Article 48

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To organise agriculture and animal husbandry on modern and scientific lines.

Article 48A: To protect and improve the environment and to safeguard the forests and
wildlife of the country.
Article 49
The State shall protect every monument or place of artistic or historic interest.
Article 50
The State shall take steps to separate judiciary from the executive in the public services
of the State.
Article 51
It declares that to establish international peace and security the State shall endeavour
to:
 Maintain just and honourable relations with the nations.
 Foster respect for international law and treaty obligations.
 Encourage settlement of international disputes by arbitration.

3. AMENDMENTS IN DPSP (DIRECTIVE

PRINCIPLES OF STATE POLICY)
42nd Constitutional Amendment, 1976:
It introduced certain changes in the part-IV of the Constitution by adding new
directives:
Article 39A: To provide free legal aid to the poor.
Article 43A: Participation of workers in management of Industries.
Article 48A: To protect and improve the environment.
44th Constitutional Amendment, 1978:
Inserted Section-2 to Article 38 which declares that; “The State in particular shall strive to
minimise economic inequalities in income and eliminate inequalities in status, facilities
and opportunities not amongst individuals but also amongst groups”.
Eliminated the Right to Property from the list of Fundamental Rights.
86th Amendment Act of 2002:
Changed the subject-matter of Article 45 and made elementary education a fundamental
right under Article 21 A.

4. CONFLICTS BETWEEN FUNDAMENTAL

RIGHTS & DPSP: ASSOCIATED CASES
 Champakam Dorairajan v the State of Madras (1951): In this case, the Supreme Court
ruled that in case of any conflict between the Fundamental Rights and the Directive
Principles, the former would prevail.
 It declared that the Directive Principles must conform to and run as subsidiary to the
Fundamental Rights.
 It also held that the Fundamental Rights could be amended by the Parliament by
enacting constitutional amendment acts.

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 Golaknath v the State of Punjab (1967): In this case, the Supreme Court declared that
Fundamental Rights could not be amended by the Parliament even for
implementation of Directive Principles.
 It was contradictory to its own judgement in the ‘Shankari Parsad case’.
 Kesavananda Bharati v the State of Kerala (1973): In this case, Supreme Court
overruled its Golak Nath (1967) verdict and declared that Parliament can amend any
part of the Constitution but it cannot alter its “Basic Structure”.
 Thus, Right to Property (Article 31) was eliminated from the list of Fundamental Rights.
 Minerva Mills v the Union of India (1980): In this case, the Supreme Court reiterated
that Parliament can amend any part of the Constitution but it cannot change the “Basic
Structure” of the Constitution.

5. IMPLEMENTATION OF DPSP: ASSOCIATED

ACTS & AMENDMENTS
Land Reforms: Almost all the states have passed land reform laws to bring changes in
the agrarian society and to improve the conditions of the rural masses. These measures
include:
 Abolition of intermediaries like zamindars, jagirdars, inamdars, etc
 Tenancy reforms like security of tenure, fair rents, etc
 Imposition of ceilings on land holdings
 Distribution of surplus land among the landless labourers
 Cooperative farming
 Labour Reforms: The following acts were enacted to protect the interests of the
Labour section of the society.
 Minimum Wages Act (1948), Code on Wages, 2020
 Contract Labour Regulation and Abolition Act (1970)
 Child Labour Prohibition and Regulation Act (1986)
 Renamed as the Child and Adolescent Labour Prohibition and Regulation Act, 1986 in
2016.
 Bonded Labour System Abolition Act (1976)
 Mines and Minerals (Development and Regulation) Act, 1957
 Maternity Benefit Act (1961) and the Equal Remuneration Act (1976) have been made
to protect the interests of women workers.
 Panchayati Raj System: Through 73rd Constitutional Amendment Act, 1992,
government fulfilled constitutional obligation stated in Article 40.
 Three tier ‘Panchayati Raj System’ was introduced at the Village, Block and District level
in almost all parts of the country.
 Cottage Industries: To promote cottage industries as per Article 43, the government
has established several Boards such as Village Industries Board, Khadi and Village
Industries Commission, All India Handicraft Board, Silk Board, Coir Board, etc., which
provide essential help to cottage industries in finance and marketing.
 Education: Government has implemented provisions related to free and compulsory
education as provided in Article 45.

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 Introduced by the 86th Constitutional Amendment and subsequently passed the

Rights to Education Act 2009, Elementary Education has been accepted as
Fundamental Right of each child between the 6 to 14 years of age.
 Rural Area Development: Programmes such as the Community Development
Programme (1952), Integrated Rural Development Programme (1978-79) and
Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA-2006) were
launched to raise the standard of living particularly in rural areas, as stated in the
Article 47 of the Constitution.
 Health: Central Government sponsored schemes like Pradhan Mantri Gram Swasthya
Yojana (PMGSY) and National Rural Health Mission (NRHM) are being implemented to
fulfill the social sector responsibility of the Indian State.
 Environment: The Wildlife (Protection) Act, 1972, the Forest (Conservation) Act, 1980
and the Environment (Protection) Act, 1986 have been enacted to safeguard the
wildlife and the forests respectively.
 The Water and Air Pollution Control Acts have provided for the establishment of the
Central Pollution Control Board.
 Heritage Preservation: The Ancient and Historical Monument and Archaeological Sites
and Remains Act (1958) has been enacted to protect the monuments, places and
objects of national importance.

6. CRITICISM OF DPSP (DIRECTIVE PRINCIPLES

OF STATE POLICY)
 No legal force: They were described as ‘pious superfluities’ and was compared to a
blank cheque, new year’s resolutions, manifestation of aims and aspirations.
 Illogically arranged: DPSP have been criticized for being arranged in an illogical
manner and without any consistent philosophy.
 Conservative and orthodox: Some provisions are outdated and are not consistent
with
 21st century philosophies. Ex: Banning intoxicating drinks
 Might lead to confusion and conflicts.
 Can cause conflicts between centre and states during implementation of DPSP.
 Constitutional cases were high during the initial stages concerning the conflicts
between FRs and DPSP

7. NCRWC RECOMMENDATIONS
National Commission to Review the Working of the Constitution recommended:

 A strategic plan of action to create a large number of employments opportunities.

 Setting up a National Education Commission every five years to report on compulsory
education.
 Promoting through civil society initiatives interfaith and inter- religious harmony and
social solidarity.
 Establishing a high-status body to review the implementation of Directive Principles.

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9
Chapter FUNDAMENTAL DUTIES
TOPICS TO BE COVERED
1. Fundamental Duties
2. List of Fundamental Duties
3. Relationship between fundamental rights, directive principles & fundamental duties
4. Criticism of Fundamental Duties

1. FUNDAMENTAL DUTIES
In India, privilege has been given to every citizen to live with liberty. But these
rights are enforceable only when another person has some act which he does want
to do. Also, the citizens have the duty to protect the rights of another person living
in society. Therefore, duty and rights go hand in hand with each other. When there
is a breach of duty from one person, there is a breach of the right of another
person.

CLASSIFICATION OF DUTIES
Duties are classified under the following categories –
 Primary and Secondary Duties – A primary duty which is independent of any other
duty and does not have to depend upon other duties. On the other hand, secondary
duty which is also known as a remedial duty which depends on other duties.
 Positive and Negative Duties – Duties which is prescribed by Law is Positive Duty and
which is prohibited by the Law is called the Negative duty.
 Absolute and Relative Duties – Austin has classified duties into absolute and relative.
Relative duties are that duty which is related to some right and absolute rights are
those which does not relate with any right. Austin also given classify absolute rights –
 Self-regarding duties such as a duty not to commit suicide or not to consume drugs or
liquor, etc.
 Duties towards society e.g., a duty not to commit a nuisance.
 Duties towards other than human beings such as duty towards God or animals, birds,
etc.
 Duty towards the sovereign or the state.
 Fundamental duties have been incorporated in Constitution with the mere object to
remind every citizen that while enforcing his fundamental rights, he must also be
conscious of his fundamental duties. That, he cannot enforce his fundamental rights
without adhering to the fundamental duties prescribed in Article 51A. Rights and
duties are correlative. No right can exist without a co-relative duty.
 Right of one may be the duty of the other. It is fallacy to think that under our
Constitution, there are only rights and no duties. These duties would help to
strengthen our democracy. These provisions are made for dealing with anti-national
activities, whether by individual or associations

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IMPORTANCE OF FUNDAMENTAL DUTIES

 Indira Gandhi said: The moral value of fundamental duties would be not to smoother
rights but to establish a democratic balance by making the people conscious of their
duties equally as they are conscious of their rights.
1. They serve as a reminder to the citizens that while enjoying their rights, they should
also be conscious of duties they owe to their country, their society and to their fellow
citizens.
2. They serve as a warning against the anti- national and antisocial activities like burning
the national flag, destroying public property and so on.
3. They serve as a source of inspiration for the citizens and promote a sense of discipline
and commitment among them. They create a feeling that the citizens are not mere
spectators but active participants in the realisation of national goals.
4. They help the courts in examining and determining the constitutional validity of a law.
In 1992, the Supreme Court ruled that in determining the constitutionality of any law,
if a court finds that the law in question seeks to give effect to a fundamental duty, it
may consider such law to be ‘reasonable’ in relation to Article 14 (equality before law)
or Article 19 (six freedoms) and thus save such law from unconstitutionality.
5. They are enforceable by law. Hence, the Parliament can provide for the imposition of
appropriate penalty or punishment for failure to fulfil any of them.

FEATURES OF FUNDAMENTAL DUTIES

Some of them are moral duties while others are civic duties. For instance, cherishing
noble ideals of freedom struggle is a moral precept and respecting Constitution, National
Flag and National Anthem is a civic duty.
They refer to such values which have been a part of the Indian tradition, mythology,
religions, and practices.
Unlike some of Fundamental Rights which extend to all person whether citizens or
foreigners’, Fundamental Duties are confined to citizens only and do not extend to
foreigners.
Like the Directive Principles, fundamental duties are also non-justiciable. Constitution
does not provide for their direct enforcement by the courts Moreover, there is not legal
sanction against their violation. However, the Parliament is free to enforce them by
suitable legislation.

2. LIST OF FUNDAMENTAL DUTIES

Since the duties are imposed on the citizens and not upon the State, it has been
held that legislation is necessary for their implementation. For example, the
Prevention of Insult to National Honours Act, 1971, punishes a citizen of India for
committing insult of national honours.
In Bijo Emmanuel vs. State of Kerala, Supreme Court held that proper respect was
shown by the students to the National Anthem by standing up in silence when National
Anthem was being sung. Not joining in the singing, did not amount to committing
disrespect to National anthem.
Arjun Gopal vs UOI: Duty to ensure a healthy environment not only falls on the State in
terms of Article 48-A but also on all citizens under Article 51A(g).

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A code of 11 fundamental duties was provided to the citizens of India. Article 51-A
states that it is the duty of every citizen of India:
1. To respect the Constitution, it’s ideals and institutions, the National Flag and National
Anthem– Ideals like liberty, justice, equality, fraternity and institution like executive,
the legislature, and the judiciary must be respected by all the citizens of the country.
No person should undergo any such practice which violates the spirit of the
Constitution and should maintain its dignity. If any person shows disrespect to the
National Anthem or to the National Flag then it will be a failure as a citizen of a
sovereign nation.
2. The noble ideas that inspire the national struggle to gain independence, one should
cherish them.
3. One should protect and uphold the sovereignty, unity and integrity of India.
4. One should respect the country and render national service when called upon.
5. One should promote harmony as well as the spirit of common brotherhood amongst
the citizens of India, transcending religious, linguistic, regional or sectional diversities
and to renounce practices that are derogatory to the dignity of the women.
6. One should value and preserve the heritage of our composite culture– India’s culture
is one of the richest heritages of the earth.
7. One should protect and improve the natural environment including forests, lakes,
rivers, wildlife and a citizen should have compassion for living creatures.
8. One should not only develop the scientific temperament and humanism but also the
spirit of inquiry and reform.
9. One should always safeguard public property and abjure.
10.One should always strive towards excellence in all spheres of life and also for the
collective activity so that the nation continues with its endeavour and achievements.
11.One should always provide the opportunity of education to his child or ward between
the age of six to fourteen years– Free and compulsory education must be provided to
the children who belong to 6 to 14 years of age and this has to be ensured by the
parents or guardian of such child. This was provided by the 86th Constitutional
Amendment Act, 2002.

3. RELATIONSHIP BETWEEN FUNDAMENTAL

RIGHTS, DIRECTIVE PRINCIPLES &
FUNDAMENTAL DUTIES
Relationship between fundamental rights, directive principles and fundamental
duties:
 In cases, where there was a conflict between constitutional validity of legislation with
fundamental rights, then Directive Principle of State Policy have been used to uphold
constitutional validity of such legislation.
 25th amendment in 1871 added Article 31 C which states that any law enforced which
was to give effect to Directive Principles that were provided in Article 39 (b) (c) would
not be held invalid on the grounds that they derogated from fundamental rights that
are present in the Article 14,19 and 31 of Indian Constitution.
 42nd amendment proposes that Article 31C should be made applicable to all Directive
Principles. But Supreme Court struck down this suggestion as it violates basic

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structure of Indian Constitution. For forming the basis of legislation related to social
welfare the fundamental rights and the directive principles have been used together.
 Supreme Court after the Keshvananda Bharti case adopted a view that Fundamental
Rights and Directive Principles are not only complementary to each other but they
both supplement each other by providing some goals to establish a welfare state by
the means of social revolution.
 Supreme Court has upheld constitutional validity of various statutes which promote
the objects that were laid down in the fundamental duties.
 These duties are not only obligatory for all citizens, but the Court can enforce them by
making various laws. For this, Supreme Court has already given direction to the state
in order to ensure effective implementation of these duties.
 Fundamental duties are not enforceable through courts but fundamental rights are
enforceable through Supreme Court under Article 32 of Constitution and High Court
has the power to issue writs for enforcement of fundamental rights under Article 226.
 Fundamental duties and DPSP that are provided in Part IV of Indian Constitution are
taken into account by Courts while interpreting fundamental rights or any restrictions
that are imposed on such rights.
 Supreme Court in Javed vs State of Haryana held that fundamental rights have to be
read with fundamental duties which are provided in Article 51A of Indian Constitution
and with DPSP that are provided in Part IV of Constitution. They cannot be read in
isolation.
 In State of Gujrat vs Mirzapur, Supreme Court held while considering provisions
regarding Article 48A and Article 51(g) that DPSP and fundamental duties that are
provided in Article 51-A of Indian Constitution plays a significant role while testing
constitutional validity of any statutory provision or of any executive act.
 Supreme Court said that reasonableness of any restriction that is cast by the law on
fundamental rights in the form of regulation, control or prohibition can be tested by
taking the fundamental duties and DPSP into account.
 In Ramlila Maidan Incident, SC held that a balance has to be maintained between
fundamental rights and restrictions on one hand and fundamental rights and
fundamental duties on the other hand. There would be an imbalance if importance is
given to only fundamental rights or to the fundamental duties. Duty is considered as
a true source of right.
 Courts consider fundamental duties that are present in Article 51A while examining
the reasonableness of the legislative restriction on exercise of various freedoms.
 SC said that duties like protecting the sovereignty, unity and integrity of the country,
provide safeguard to public property etc. are not insignificant.
 In N K Bajpai vs UOI , SC held that there is a common thread which runs between Part
III, IV and Part IV-A of Indian Constitution. First part provides us with fundamental
rights while the second part provides us with the basic principle of governance of state
and the third part provides the fundamental duties of the citizens of India. The court
should consider all the constitutional aspect of fundamental rights, fundamental
duties and the directive principle of state policy while interpreting any provision.

4. CRITICISM OF FUNDAMENTAL DUTIES

 Fundamental duties are not exhaustive: Critics feel that many more important
duties like paying taxes, casting votes that were also suggested by Swaran Singh
Committee were not included in this list.

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 Not easy to comprehend: A common man cannot understand the complex words
like composite culture that are present in fundamental duties. Due to lack of
understanding, the true meaning cannot be established. For him/her such words are
difficult to understand. Moreover some duties are ambiguous in nature.
 Not enforceable: Fundamental duties cannot be enforced by a court of law so, critics
feels that it is of no use to include these duties in the Constitution.
 Redundancy: Some duties are of such a nature that they are being performed by the
citizen in each and every case like paying respect to the National Flag and National
Anthem. So there was no need to include these duties in the Constitution.
 Placement: These duties are placed in Part IV-A of the Indian Constitution that is after
DPSP, that’s why not much importance is given to them. According to the critics it
should be placed in Part III after the Fundamental Rights.
Recommendations of NCRWC (National Commission to Review the Working of the
Constitution) recommendations
National Commission to Review the Working of the Constitution has recommended
that for effectuating Fundamental Duties, the following steps should be taken:
 Sensitise people and create a general awareness of provisions of fundamental duties
amongst the citizens on the lines recommended by Justice Verma Committee.
 Right to freedom of religion and other freedoms must be jealously guarded and rights
of minorities and fellow citizens respected.
 Reform of the whole process of education is an immediate but immense need, as is
the need to free it from governmental or political control; it is only through education
that will power to adhere to our Fundamental Duties as citizens can be inculcated.
 Duty to vote at elections, actively participate in the democratic process of governance
and to pay taxes should be included in article 51A.

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10
Chapter EMERGENCY PROVISION
TOPICS TO BE COVERED
1. Emergency Provisions
2. National Emergency (Article 352)
3. President Rule (Article 356)
4. Financial Emergency (Article 360)

1. EMERGENCY PROVISIONS
India is a federal country of “its own kind”. It acquires unitary features during an
Emergency. Due to this reason, Dr B.R Ambedkar called the Indian Federal system
as unique because it becomes entirely unitary during an Emergency. During an
Emergency, as Constitutional machinery fails, the system converts itself into a
unitary feature. The Emergency is a period of depression where all Fundamental
Rights of a person is taken away except article 20 and 21.
The Emergency Provisions in the Indian Constitution have been borrowed from the
Weimar Constitution of Germany.

TYPES OF EMERGENCIES
Types of Emergencies

Basis of National President's rule Financial

classification Emergency Emergency

Constitutional Article 352 Article 356 Article 360

Provisions

Grounds of  War  Failure of  Financial

Declaration  External constitutional instability
aggression machinery

 Armed rebellion

Parliamentary  Approval by both  Approval by both  Approval by both

approval house* by special houses by special houses by simple
majority within 1 majority within 2 majority within 2
month of issue of months of issue months of issue of
proclamation of proclamation. proclamation

Revocation of  By president  By President  By President

proclamation  By resolution of
Lok Sabha

implementation  it has been  President's rule  Not yet invoked

invoiced three has been invoked
times in India more than 100
times in India

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during 1962. 1971

and 1975

 National Emergency: Article 352 deals with National emergency. This kind of
emergency arises when there is a threat to National security due to external
aggression, war and armed rebellion. India has witnessed a National emergency
thrice. Twice being due to war and the third time in 1975, when Prime Minister Indira
Gandhi had declared an emergency as her candidature was declared invalid in Indira
Gandhi vs Shri Raj Narain and Anr.
 State Emergency: Article 356 deals with State Emergency. State Emergency is also
called as President rule. Article 356 empowers the President to impose President Rule
in a state, if he is satisfied with the report from the governor of the state or ‘otherwise’
the effect that ‘the Government of the State cannot be carried on with accordance with
the provisions of the Constitution’.
 Financial Emergency: Financial Emergency is dealt with in Article 360 of The
Constitution of India. This kind of emergency can be imposed by the President when
the financial stability or credit situation of the country is threatened, however the
constitution does not lay any basis for imposition of financial emergency. This decision
can be challenged in the court. The clauses of financial emergency were inspired by
the ‘National Recovery Act 1933’ of the United States 7 . However, till now India has
never seen Financial Emergency.

DEBATE IN CONSTITUENT ASSEMBLY

H.V. Kamath accused Drafting committee of plagiarising United Kingdom’s Emergency
power act 1920 in a ‘dishonest fashion’. He further added that the provision was
‘dangerous and India should do better and not worse than the British government which
did not suspend the right to constitutional remedies even during the Second World War.
Kamath argued for strong safeguards against the misuse of emergency powers by the
executive. He invoked Article 48 of the Weimar Constitution that provided for the
President to notify parliament on all actions taken during an emergency. Also, the
Weimar Constitution made it incumbent on the President to revoke emergency if
parliament demanded such a measure.
T. T. Krishnamachari invoked historical context of Emergency Powers Act, 1920 and
argued that this type of a provision was meant to ‘meet one purpose namely that all our
efforts all these years spent in Constitution making may not go in vain and those people
who will be in power in future would be adequately empowered to save the Constitution.’

2. NATIONAL EMERGENCY (ARTICLE 352)

GROUNDS FOR THE PROCLAMATION OF NATIONAL EMERGENCY
 War: When a country declares a formal war against India and there is a violent struggle
using armed forces, the President of India may impose National emergency.
 External Aggression: When a country attacks another country without any formal
declaration of war. It is a unilateral attack by any country towards India. In such
circumstances, the President of India may impose a National emergency.
 Armed Rebellion: Emergency due to the armed rebellion may be imposed by the
President of India when a group of people rebel against the present government
which will lead to the destruction of lives and property.

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Associated Facts:
 Emergency can be declared over the complete territory of India or any part thereof.
The 42nd Amendment Act of 1976 enabled the president to limit the operation of a
National Emergency to a specific part of India.
 The President can declare an emergency only on the written advice of the cabinet. This
means that the emergency may only be proclaimed with the cabinet’s approval and
not only on the prime minister’s recommendation.

PROCEDURE FOR PROCLAMATION OF NATIONAL EMERGENCY

 Once President declares emergency, within a month, the declaration of Emergency
must be ratified by both Houses of Parliament.[The 44th Amendment Act of 1978
shortened the two-month time originally given to the Parliament for approval.]
Process of Ratification:
 Every proclamation made under article 352 should be laid before each house of
parliament and must be approved by them with special majority, i.e., by a majority of
the total membership of that house and by a majority of not less than 2/3rd of the
members of that house present and voting.
Question arises on Proclamation:
 If parliament fails to approve such a proclamation, then it ceases to be in operation
on the expiry of one month after the proclamation is made.
 If parliament approves such a proclamation, then it will be in force for 6 months from
the date on which it was approved by the parliament, unless revoked earlier.
In case Lok Sabha is not in session
 If the proclamation of emergency is issued at a time when the Lok Sabha has been
dissolved or the dissolution of the Lok Sabha takes place during the period of one
month without approving the proclamation, then the proclamation survives until 30
days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya
Sabha has in the meantime approved it.

REVOCATION OF PROCLAMATION OF NATIONAL EMERGENCY:

 The Proclamation of emergency may be revoked by the President by another
Proclamation at any time during its continuance. Such a Proclamation need not be
approved by the Parliament.
 President must revoke if Lok Sabha passes a disapproval resolution by a simple
majority. This was introduced by the 44thAmendment Act.
How the Lok Sabha disapproves the Emergency?
 Lok Sabha has the power to disapprove the operation of a national emergency at any
time, if 1/10th of members of Lok Sabha issue a notice with the intention of
disapproving an emergency, to the President if the Lok Sabha is not in session.
 If there is no session, a special sitting of the LS shall be held within 14 days for the
purpose of considering such a resolution.

EFFECTS OF NATIONAL EMERGENCY

Centre- State Relation:
 The most significant effect is that the federal form of the Constitution changes into
unitary. The authority of the Centre increases and the Parliament assumes the power
to make laws for the entire country or any part thereof, even in respect of subjects
mentioned in the State List.

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 The President of India can issue directions to the states as to the manner in which the
executive power of the states is to be exercised. tate governments are not dismissed,
they continue to operate, but are brought under the effective control of the centre,
which assumes the power to give instructions to the state government, which shall
abide by such directions
 During the emergency period, the Lok Sabha can extend tenure by a period of 1 year
at a time.
 But the same cannot be extended beyond 6 months after the proclamation ceases to
operate.
 The tenure of State Assemblies can also be extended in the same manner.
 During emergency, the President is empowered to modify the provisions regarding
distribution of revenues between the Union and the States.
Fundamental Rights: The effect of National Emergency on fundamental Rights is
mentioned in Article 358 and 359 of the Indian Constitution.
Article 358: Clause (1) of Article 358 says that Article 19 will be suspended during a
situation declared as National Emergency by the President.
 The state has the authority to enact any law or take any executive action that restricts
or eliminates the six Fundamental Rights guaranteed by Article 19.
 Any such law or executive action cannot be challenged on the basis that it violates the
six Fundamental Rights guaranteed by Article 19.
 However, the scope of Article 358 was limited in two ways by the 44th Amendment Act
of 1978.
 The six Fundamental Rights enshrined in Article 19 can be suspended only when the
National Emergency is declared due to war or external aggression, rather than armed
rebellion.
 Only laws related to the Emergency are protected from being challenged, not other
laws.
 Furthermore, only executive action taken in accordance with such a law is protected.
Article 359:
 Article 359 allows the president to suspend the right to petition any court for the
enforcement of Fundamental Rights.
 This means that, under Article 359, the Fundamental Rights are not suspended in their
entirety, but only their enforcement.
 The scope of Article 359 was limited in two ways by the 44th Amendment Act of 1978.
 The President cannot suspend the right to petition the Court for the enforcement of
fundamental rights guaranteed by Articles 20–21. It means, even during an
emergency, the right to protection from criminal prosecution (Article 20) and the right
to life and personal liberty (Article 21) remain enforceable.
 Only laws related to the emergency are protected from challenge, not other laws, and
only executive action taken under such a law is protected.

DIFFERENCE BETWEEN ARTICLE 358 AND 359

ARTICLE 358 ARTICLE 359

Freedoms given by Article 19 are Fundamental rights are not suspended

suspended automatically under this automatically it has to be done by a
Article as soon as the emergency is presidential order. Only the courts cannot
proclaimed. be moved to enforce fundamental rights.

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EMERGENCY PROVISION

Article 19 is suspended for the whole Right to move courts is suspended for the
period of emergency. period of emergency or until the
proclamation of the president to remove
suspension of fundamental right

Effective all over the country. May be confined to an area.

It operates only in case of emergency It operates in any emergency proclaimed

on the ground of threat to the security under Article 352.
of the country because of war or
external aggression.

It authorises the State to enact any law It authorises the State to enact any law or
or take any executive action that is take any executive action that is
inconsistent with fundamental Rights inconsistent with Fundamental Rights
under Article 19. whose enforcement is suspended by the
Presidential Order.

Case Law
Issues
 Whether writ of Habeas Corpus is maintainable by the High Court questioning illegal
detention when an emergency was imposed by the President?
 Whether suspension of Rights and Liberty of any person under Article 21 is valid under
Rule of Law?
 Whether detenue have locus standi during the proclamation of emergency?
Judgement in ADM Jabalpur Case: Supreme Court observed that under Article 359
clause (1) no person has locus standi to approach the High Court under article 226
to enforce his fundamental right of personal liberty in case of detention by filing a
writ of habeas corpus. Fundamental Rights remain suspended during the
Emergency.

3. PRESIDENT RULE (ARTICLE 356)

MEANING OF PRESIDENT RULE
President’s Rule refers to the suspension of a state government and the imposition
of direct rule of the Centre. The central government takes direct control of the
state in question and the Governor becomes its constitutional head. The Vidhan
Sabha is either dissolved or prorogued. Such a situation forces the Election
Commission to conduct a re-election within six months.

PROCEDURE FOR PRESIDENT’S RULE IN A STATE

Article 356 of the Constitution of India gives the President of India the power to
impose this rule on a state on the advice of the Union Council of Ministers.

CONSTITUTIONAL BASIS FOR PRESIDENT RULE

 Article 355: It shall be the duty of the Union to protect every State against external
aggression and internal disturbance and to ensure that the government of every State
is carried on in accordance with the provisions of this Constitution.
 Article 365: If the state government fails to comply with those directions, it is a
violation of Article 365 by that state, and the President may impose Article 356 on that
state and assume his rule.

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There are some conditions that the President has to consider before imposing the
rule:
 If the President is satisfied that a situation has arisen in which the government of the
state cannot be carried on in accordance with the provisions of the Constitution.
 The state government is unable to elect a leader as chief minister within a time
prescribed by the Governor of that state.
 There’s a breakdown of a coalition leading to the chief minister having a minority
support in the House, and the CM fails to prove majority in the given period of time.
 Loss of majority in the Assembly due to a vote of no-confidence in the House.
 Elections postponed on account of situations like natural disasters, war or epidemic.

MANNER OF IMPOSITION AND DURATION OF THE PRESIDENT’S

RULE IN A STATE
The steps of the procedure that are followed in the imposition of the President’s
rule in a state are mentioned below:
 First, the violation of Article 365 has to be proven for the imposition of the President’s
rule in a state.
 Such a situation has to be looked into, and the President has to be satisfied that
invoking Article 356 is expedient.
 The President, when satisfied, issues a proclamation of a State Emergency.
 Such a proclamation to be implemented has to be approved by the Parliament of
India.
 It has to be approved by both the Houses of Parliament within two months of issuance
by Special majority.
 In case the Lok Sabha is not in session or is dissolved, and the proclamation is
approved by the Rajya Sabha, the proclamation continues till 30 days from the re
Constitution of the Lok Sabha.
 When the proclamation is approved by the Parliament, it can remain active for 6
months. This period can be further extended up to three years in phases of 6 months
where approval has to be obtained from the Parliament in every phase. This 3-year
extension limit was introduced through the 44th Constitutional amendment. Such an
extension has to be backed by strong reasoning and justification. Before the 44th
Constitutional Amendment Act, the maximum period up to which the President’s rule
can be imposed was for one year.

DURATION OF THE PRESIDENT’S RULE

Proclamation of President’s Rule under Article 356 of the Constitution stands for
six months. This timeframe can be extended up to three years, in phases.
President’s Rule can be revoked at any time by the President and this does not
require Parliament’s approval.
According to the 44th Amendment Act of 1978, President’s rule can only be
extended over a year every 6 months under the following conditions:
 The Election Commission certifies that elections cannot be conducted in the state
concerned.
 There is already a national emergency throughout India or in the whole or any part of
the state.

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EMERGENCY PROVISION

OPTION FOR THE ELECTED REPRESENTATIVES OF THE STATE:

In case President’s Rule has been evoked because of a breakdown of coalition or a
hung Assembly, it is not the end of the road for any political party. With the
Assembly in suspended animation, stakeholders can approach the Governor any
time with the required proof of support to prove majority on the floor of the House.
The EC notification on the election is treated as the new Assembly having been
constituted.
Suspended animation” is a temporary breakdown in the normal functioning of a
body, in this case, State Assembly.
Following are the implications:
Assembly can’t be prorogued by Governor for meeting
Assembly loses its law-making powers MLAs continue to hold their membership All
cabinet ministers as well as CM too, will hold their office Legislation for particular State
will be made by Parliament

CONSEQUENCES OF THE PRESIDENT’S RULE

Mentioned below are the consequences that follow after the implementation of
the President’s rule in a state:
 The governor of such a state is made the constitutional head of the state.
 The Vidhan Sabha of such a state is either dissolved or prorogued.
 The State is run by the central government and central administration.
 The Election Commission is then required to conduct re-election for the formation of
a new state government for the state within 6 months.
 Though such imposition does not affect the general public of the state directly, it
affects them in a way of disrupting public good since no major legal or administrative
changes can be brought in the state.
 No new policies can be formed during the President’s rule in a state.
 No new laws can be made by passing a bill in the state legislature during the
President’s rule in a state.
 Pending public and state welfare policies remain pending during this period of the
President’s rule.

CASE LAWS:
SR Bommai Case:
 The majority enjoyed by the Council of Ministers must be tested on the grounds of the
House.
 The centre must give a warning to the state before imposing the President’s rule in
the state and also give a one-week time to respond.
 The President must not dissolve the Assembly in such a state or take action under
Article 356 (3) unless it is expedient to do so.
 Article 356 can only be invoked for the breakdown of constitutional machinery as
under Article 365 and not otherwise.
The Andhra Pradesh government case [CM Jagan Mohan Reddy vs. the judges
(Andhra Pradesh High Court)]:
In 2020, the Andhra Pradesh High Court took Suo moto cognizance to conduct an inquiry
into the breakdown of constitutional machinery by the Andhra Pradesh government. The
Governor was of the opinion that the government needed to be dismissed and the

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President’s rule should be implemented. The case reached the Supreme Court of India
where it was observed that the Andhra Pradesh High Court made a case of judicial
overreach and it was arbitral.

4. FINANCIAL EMERGENCY (ARTICLE 360)

SIGNIFICANCE OF FINANCIAL EMERGENCY
If a country is facing financial instability or crisis then the declaration of the
provisions of Financial Emergency can help that country to easily overcome such
situation. According to Dr. B. R. Ambedkar, Article 360 of the Indian Constitution
followed the National Recovery Act, 1933 of the US which empower the President
to make similar provisions to lessen the difficulties of the American people due to
the Great Depression of the 1930s.

IMPOSITION OF FINANCIAL EMERGENCY

According to Article 360 of the Indian Constitution, the President may declare a
Proclamation of financial emergency if he considers that the financial stability of
India or any part of its territory is in jeopardy.

APPROVAL OF PARLIAMENT AND THE TIME PERIOD OF FINANCIAL

EMERGENCY
According to Article 360(2) of Indian Constitution, declaration of financial
emergency must be ratified by both Houses of Parliament within two months of
its issuance. A financial emergency, if approved by both Houses of Parliament,
lasts indefinitely until it is repealed. Two things are implied by this:
1. Its continuance does not need repeated Parliamentary approval.
2. The function of a financial emergency is not subject to any time limits.
A Resolution approving the declaration of a financial emergency may only be
carried by a simple majority in either House of Parliament (Lok Sabha or Rajya
Sabha). The President can rescind a proclamation of a financial emergency at any
moment without parliamentary agreement.

OUTCOMES OF A FINANCIAL EMERGENCY:

After the Parliament approves the state of emergency, the Union assumes complete
control of the country’s financial affairs. The Union Government may provide financial
directives to any of the states, and the President may ask the states:
 to cut the pay and benefits of all or any class of government employees.
 to hold all money bills in reserve for consideration by Parliament once they have been
enacted by the State Legislature.
 to reduce the salaries and allowances of central government officials, including those
of Supreme Court and High Court judges.

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11
UNION EXECUTIVE
Chapter (PRESIDENT)
TOPICS TO BE COVERED
1. Election of President
2. Executive power of President
3. Legislative power of the President

1. ELECTION OF PRESIDENT
UNION EXECUTIVE
Articles (52 to 78 and 123)
Union Executive consists of President, Vice-President, Ministers and Attorney
General.

PRESIDENT OF INDIA (ARTICLE 52)

President: Head of Union Executive provides that there shall be a President of India.
Article 53(1) declares the President to be the head of the Union Executive. It provides that
the executive power of the Union “shall be vested in the President and shall be exercised
by him either directly or through officers subordinate to him. However, he shall exercise
this power in accordance with the provisions of the constitution.

ELECTION OF PRESIDENT
QUALIFICATIONS FOR ELECTION AS PRESIDENT (ARTICLE 58):
Article 58 lays down the following qualifications which a person possesses for
being eligible for election as President –
 He must be a citizen of India.
 He must have completed the age of thirty-five years.
 He must be qualified for election as a member of the House of People.”
 He must, therefore, be registered as a voter in a Parliamentary Constituency.
 He must not hold any office of profit under the Government of India or the
Government of any State or under any local or other authority subject to the control
of any of the said Government.
Explanation attached to Article 58 declares that for the purposed Article 58, a
person shall not be deemed to hold any office of profit by reason only that he is
the President or Vice-President of the Union or the Governor of any State or is a
Minister either for the Union or for any State.

OFFICE OF PROFIT (OOP)

Article 102 (1)(a) declares a person disqualified if he holds office of Profit. The underlying
idea beyond this requirement is that the employee should be free from any pressure

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from the Government, so that there is no conflict of interest in the discharge of his
independent duties as an elected person.

MEANING OF OOP
It is neither defined in the Constitution, nor in RPA 1951.
1. In Mahadeo vs Shantabai, SC referred to Webster Dictionary where in the Word office
means a function or duty assigned to someone, especially as an essential part of his work
or Position.
2. In 1964, the Supreme Court in Satrucharla Chandrasekhar Raju vs. Vyricherla
Pradeep Kumar Dev and Another ruled that the test for determining whether a person
holds an office of profit is test of appointment. Several factors are considered in this
determination including factors such as:
 Whether the government is the appointing authority.
 Whether the government has the power to terminate the appointment.
 Whether the government determines the remuneration
 What is the source of remuneration, and
 The power that comes with the position.
3. In Pradyut Bordoloi Vs Swapan Roy (2001): SC has added 2 more factor to test the
office of OOP:-
 Whether the body in which the office is held has Government powers like releasing
Money, Granting License.
 Whether the Office enables a holder to influence by way of Patronage.
Constitution provisions about holding an ‘office of profit, exemptions under the
law
1. Under the provisions of Article 102 (1) and Article 191 (1) of the Constitution, an MP
or an MLA (or an MLC) is barred from holding any office of profit under the central or
state government.
2. The Constitution specifies that the number of ministers including the Chief Minister
has to be within 15% of the total number of members of the assembly (10% in the
case of Delhi, which is a union territory with legislature).
3. Provisions of Articles 102 and 191 also protect a legislator occupying a government
position if the office in question has been made immune to disqualification by law.
4. In the recent past, several state legislatures have enacted laws exempting certain
offices from the purview of office of profit. Parliament has also enacted the
Parliament (Prevention of Disqualification Act) which has been amended several
times to expand the exempted list.
Recent crisis
1. It was reported in 2015 that all the 60 MLA OF Nagaland Assembly had joined the
ruling alliance.
2. The Nagaland Chief Minister appointed 26 legislators as parliamentary secretaries in
July 2017.Goa, an assembly of 40 MLAs, exempted more than 50 offices from the
ordinance issued in June last year.
3. Puducherry, an assembly of 33 MLAs, exempted more than 60 offices by passing an
amendment bill in 2009.

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4. In Delhi, the 21 parliamentary secretaries added to the seven ministerial posts would
constitute 40% of the 70-member legislature.
5. In 2019, Punjab cabinet has passed ordinance to exclude appointment of advisor to
CM from ambit of OOP.
Second Judicial Reforms Commission has opined that by exempting numerous
offices from disqualification without any clear rationale, Articles 102 and 191 have
been violated in spirit.
1. Calcutta High Court has observed that appointment of MLAs as parliamentary
secretaries was an attempt by state governments to bypass constitutional ceiling on
the number of ministers.
2. In 2009, Bombay High Court held that appointing parliamentary secretaries of the
rank and status of a cabinet minister is a violation of Article 164 (1A) of Constitution.
The Article specifies that the number of ministers including the Chief Minister should
not exceed 15% of the total number of members in the assembly.
Posts which are not OOP
SC in “Smt Kanta Kathuria vs Manak chand surana”, held that there must be an office
which existed independently of the holder of the office.
Thus the court held that appellant appointed as special Government pleader, to
conduct arbitration case between the Government of Rajasthan and Modern
Construction was appointed only to assist the Government advocate in the
particular case was not holding office since the engagement did not exist
independently of the office.
Bhargava committee has made following recommendations regarding offices of
profit:
1. Offices in purely advisory bodies should not be treated as offices of profit, irrespective
of any remuneration attached with the office.
2. If the officeholder is the Head or Member of such organisation where close
coordination between the Council of Ministers and the organisation is essential for
functioning of the Government, the office should not be treated as an office of profit.

PRESIDENT-ELECTORAL COLLEGE (ARTICLE 54)

Article 54 provides: “The President shall be elected by the members of the electoral
college consisting of-
 the elected members of both Houses of Parliament; and
 the elected members of the Legislative Assemblies of the States”
The term “State” in Article 54 does not include a Union Territory. The Constitution
(Seventieth Amendment) Act, 1992 has inserted a nation at the end of Article 54 to the
effect that “in this Article and in article 55 State’ includes the National Capital Territory of
Delhi and the union Territory of Pondicherry. It may be noticed that only elected
members of the Houses of Parliament that of the Legislative Assemblies of the States are
the members of the Electoral College. The Nominated Members do not take part in the
election the President.

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Manner of Election (Article 55 (1) & (2))

 Article 55 requires that, as far as practicable, there shall be maintained uniformity in

the scale of representation among the States inter se as well as between the States as
a whole and the Union. To achieve such uniformity and parity, Article 55 contains the
formula to be adopted at the election of the President for determining the number of
votes which each member of the Electoral College shall be entitled to cast.
 The formula provided is that every elected member of the Legislative assembly of a
State shall have as many votes as there are multiples of one hand in the quotient
obtained by dividing the population of the State by the total number of the elected
members of the Assembly.
 Article 55 provides that each elected member of either House of Parliament shall have
such number of votes as may be obtained by dividing the total number of votes
assigned to the members of the Legislative Assemblies of the States by the total
number of the elected members of both the Houses of Parliament.

SYSTEM OF ELECTION [ARTICLE 55(3)]

 Clause (3) of Article 55 provides that the election of the President shall be held in
accordance with the system of proportional representation by means of the single
transferable vote.
 The object for adopting this system is to elect that candidate found to be more popular
among the electors. This system is adopted when there are more than two candidates
in the election of the President. In such a case, if simple majority rule is applied, then
a candidate getting less than 50 per cent of votes cast in the election, would be
declared elected. While according to system of proportional representation, the
candidate to be declared successful once he/she obtains an absolute majority votes.
 Quota to be obtained by the candidate to be declared successful:
o Total valid votes cast/Number of candidates to be elected+ 1
o Grounds for rejection of the nomination of a candidate in the Presidential
election
o A nomination paper may be rejected by the Returning Officer on the
following grounds under
Section 5E of the Presidential and Vice-Presidential Elections Act, 1952:
1. On the date of scrutiny of nominations, the candidate is not eligible for election as
President under the Constitution; or

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2. if any of the proposers or seconders is not qualified to subscribe a nomination paper,

i.e., he is not an elector at the election; or
3. if it is not subscribed by the required number of proposers and/or seconders; or
4. if the signature of the candidate or any of the proposers or seconders is not genuine
or has been obtained by fraud; or
5. if the nomination paper is not presented in person by the candidate or any of his
proposers or seconders or if it is not delivered to the Returning Officer, within the
hours and dates prescribed for the purpose or at the place appointed for the purpose,
or the candidate has failed to make the required security deposit in the prescribed
manner

TIME FOR HOLDING ELECTION OF THE PRESIDENT (ARTICLE 62)

 Clause (1) of Article 62 provides that “an election to fill a vacancy caused by the
expiration of the term of President shall be completed before the expiration of the
term.”
 Clause (2) of Article 62 further provides that “an election to fill a vacancy in the office
of President occurring by reason of his death, resignation or removal or otherwise
shall be held as soon as possible after, and in no case later than six months from the
date of occurrence of the vacancy.” It is further provided that the person elected to fill
the vacancy, shall, subject to the provisions of Article 56, be entitled to hold office for
the full term of five years from the date on which he enters upon his office.
It has been ruled that Article 62 is mandatory in nature. It requires that the election of
the President must be completed before the expiration of the term of the earlier
President. To fill a vacancy in the office of the President by reason of his death,
resignation, removal or otherwise, the election must be completed before the expiration
of six months from the date of occurrence of the vacancy. The term “otherwise” in Article
62(2) refers cases where the vacancy in the President’s office is caused by reason of his
becoming disqualified to hold office or where his election is declared void.

ELECTION OF US PRESIDENT

Step 1: Primaries and Caucuses

 There are many people who want to be President, each with their own ideas about
how the government should work. People with similar ideas belong to the same
political party. This is where primaries and caucuses come in. Candidates from each
political party campaign through the country to win the favour of their party members.

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 Beginning in February the main voting events Primaries and Caucuses will lead to a
selection of delegates who will represent the people at the upcoming conventions.
The main focus will be on the results from Iowa New Hampshire Nevada and South
Carolina which can usually determine who the final presidential nominee for each
party will be.
In a Caucus: Party members select the best candidate through a series of discussions
and votes.
In a Primary: Party members vote for the best candidate that will represent them in the
general election.
Step 2: National Conventions
Each party holds a national convention to select a final presidential nominee. State
delegates from the primaries and caucuses selected to represent the people will now
“endorse” their favourite candidates and the final presidential nominee from each party
will be officially announced at the end of the conventions. The presidential candidate also
chooses a running mate (Vice Presidential candidate). The presidential candidates
campaign throughout the country to win the support of the general population.
Step 3: General Election
 People in every state across the country vote for one President and Vice President.
When Americans go to the polls in November they will select their favourite
presidential candidate and their running mate.
 When people cast their vote, they are actually voting for a group of people called
electors. Except in the states of Maine and Nebraska, if a candidate receives the
majority of the votes from the people of a state then the candidate will receive all
electoral votes of that state.
 The presidential nominee with the most electoral votes becomes the President of the
United States.
Step 4: Electoral College
 The Electoral College is a process in which electors or representatives from each state
in number proportional to the state’s population cast their vote and determine who
will be president.
 Each state gets a certain number of electors based on its representation in Congress.
There are a total of 538 electors selected according to each state’s policy. Each elector
casts one vote following the general election, and the candidate who gets more than
half (270) wins.
The newly elected President and Vice President are inaugurated in January.

ELECTION OF FRENCH PRESIDENT

Who can vote? The President is elected by direct universal suffrage: -Universal: All
French citizens aged 18 and over can vote, whether residing in France or not,
Direct: Votes are directly attributed to the candidates
What are the main stages in the election?
7 weeks before the second round/21 March: The official list of candidates is published to
officially be a candidate, contenders must, among other things, be nominated by at least
500 elected representatives (e.g. mayors, deputies).
4 weeks before the second round/10 April Official electoral campaign: There is an upper
limit on spending which is monitored by a committee – Once the official campaign has
begun, each candidate must have strictly the same amount of airtime on TV and radio.

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2 weeks before the second round/23 April 1st round of the election: The French people
go to the polls: if no candidate wins over 50% of the vote, a second round is organized.
Second round/7 May 2nd round of the election: Only the two candidates with the most
votes qualify for the 2nd round. The candidate with the absolute majority of votes cast is
elected. Blank or spoilt votes are not taken into account.

ADVANTAGES OF DOUBLE VOTING SYSTEM

 First and foremost, the Two-Round System (TRS) allows voters to have a second choice
for their chosen candidate, or even to change their minds on their favoured choice
between the first and the second rounds. It thus shares some features with
preferential systems like the Alternative Vote (AV) in which voters are asked to rank
candidates, while also enabling voters to make a completely fresh choice in the second
round if they so desire.
 Secondly, it encourages diverse interests to coalesce behind the successful candidates
from the first round in the lead-up to the second round of voting, thus encouraging
bargains and trade-offs between parties and candidates.
 TRS also enables the parties and the electorate to react to changes in the political
landscape that occur between the first and the second rounds of voting.
In addition, TRS systems lessen the problems of ‘vote splitting’, the common situation
under First Past the Post (FPTP) elections where two similar parties ‘split’ their combined
vote between them, thus allowing a less popular candidate to win the seat.
Finally, because electors do not have to rank candidates with numbers to express their
second choice, TRS may be better suited to countries with widespread illiteracy than
systems which use preferential numbering like the AV or the Single Transferable Vote
Challenges of Double voting system: It places considerable pressure on the
electoral administration to run a second election soon after the first, significantly
increasing the cost of the overall election process and the time between the
holding of an election and the declaration of a result; this can lead to instability
and uncertainty.
The TRS also places an additional burden on the voter, and sometimes there is a
sharp drop-off in turnout between the first round and the second. In addition, the
TRS shares many of the disadvantages of a First Past the Post (FPTP) system,
without its countervailing simplicity. Research has shown that the TRS in France
produces the most disproportional results of any Western democracy.

TERM OF OFFICE OF PRESIDENT (ARTICLE 56)

 Article 56 provides that the President shall hold office for a term of five was from the
date on which he enters upon his office. However, he may, by writing under his hand
and addressed to the Vice-President, resign his office at any time before the
completion of his term of five years.
 The President may also be removed for the violation of the Constitution, by
impeachment, in the manner provided in Article 61.

ELIGIBILITY OF RE-ELECTION (ARTICLE 57)

 Article 57 says that a person who holds, or who has held, office as President, shall be
eligible for re-election to that office.
 The Constitution thus does not place any bar on the re-election of the same person to
the office of the President.”

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CONDITIONS OF PRESIDENT’S OFFICE (ARTICLE 59)

 Article 59 lays down the following conditions for the office of the President-
 The President shall not be a member of either House of Parliament or of a House of
the Legislature of any State, and if a member of either House of Parliament or of a
House of the Legislature of any State be elected President, he shall be deemed to have
vacated his seat in that House on the date on which he enters upon his office as
President.
 The President shall not hold any other office of profit (c) The President shall be entitled
without payment of rent to the use of his official residence, which is commonly known
as Rashtrapati Bhawan.
 The President is entitled to such emoluments, allowances and privileges as may be
determined by Parliament, by law. The emoluments and allowances of the President
cannot be diminished to his disadvantage during the term of his office.

OATH OF AFFIRMATION BY THE PRESIDENT (ARTICLE 60):

 Every President and every person acting as President or discharging the functions of
the office of the President is required by Article 60, to make and subscribe in the
presence of the Chief Justice of India, or, in his absence, the senior-most Judge of the
Supreme Court available.

FORM OF OATH
The President shall take the oath swearing in the name of God that he will
faithfully execute the office of the President (or discharge the functions of the
office of the President) of India and will, to the best of his ability. preserve, protect
and defend the Constitution and the law” and that he will, devote himself to the
service and well-being of the people of India.”
Procedure for Impeachment of the President-Removal of the President (Article 61)
 Article 56(1)(b) provides that the President may be removed from his office for the
violation of the Constitution by impeachment” in the manner provided in Article 61.
The only ground on which the President can be removed from his office is the violation
of the Constitution. The procedure contained in Article 61, to be followed for the
impeachment of the President, is as follows-
 The proposal to prefer a charge against the President for violating the Constitution
may be preferred or initiated in either House of Parliament only.
 The proposal to prefer such charge must be contained in the form of a resolution.
 The resolution can be moved in either house of Parliament only after the expiry of a
notice of 14 days. The notice must be in writing and signed by not less than one-fourth
of the total number of members of the House in which the resolution is to be moved.
The notice must express the intention to move such a resolution.
 Such resolution must be passed by the House in which it is initiated by a majority of
not less than two-thirds of the total membership of the House.
When the resolution is passed by the House in which the charge has been preferred, the
other House shall investigate the charge or cause the charge to be investigated. During
this investigation, the President shall have the right to appear and to be represented.
If after such investigation, the House, in which the charge against the President is
investigated, passes a resolution by a majority of not less than two-thirds of the total
membership of the House, declaring that the charge preferred against the President, has
been sustained, such resolution shall have the effect of removing the President from his
office as from the date on which the resolution is so passed.

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PRIVILEGES OF THE PRESIDENT (ARTICLE 361)

Article 361 provides the following privileges for the President:
1. The President is not answerable to any court for the exercise and performance of the
powers and duties of his office or for any act done or purported to be done by him in
the exercise and performance of those powers and duties. However, the conduct of
the President may be brought under review by any Court or body which may be
appointed or designated by the House of Parliament for the investigation of the
charge against the President in the impeachment proceedings taken under Article 61.
2. No criminal proceedings, whatsoever, shall be instituted or continued against the
President in any court during the term of his office.
3. No process for the arrest or imprisonment of the President shall be issued from any
court during the term of his office.
4. No civil proceedings in which the relief is claimed against the President shall be
instituted during the term of his office in any court in respect of any act done or
purported to be done by him in his personal capacity, whether before or after he has
entered upon his office as President, until a notice in writing has been given to the
President and two months have elapsed since the service of that notice.
Doubts and Disputes in respect of the Election of the President (Article 71)
Article 71 (1) declares that all doubts and disputes arising out of or in connection with
the election of the President shall be inquired into and decided by the supreme court
whose decision is final.
 If the election of the President is declared void by the Supreme Court, Clause (2)
declares the acts done by him in the exercise of his powers and performance of the
duties of the office of President, shall not be invalidated by reason of the declaration
of his election as void.
 Clause (3) of Article 71 empowers the Parliament to regulate by lay any matter relating
to or connected with the election of the President. In the exercise of the powers so
conferred, Parliament enacted the Presidential a Vice-Presidential Elections Act, 1952.
The Act regulates various matters is respect of the election of the President and that
of the Vice-President. The Act has been amended by the Amendment Acts of 1974 and
1997.
 The Act, 1997 requires that the name of the Presidential candidate m be proposed by
at least 50 electors and be seconded by 50 other electors It is to discharge light minded
persons from contesting the Presidential election The Act further provides that the
election petition for challenging the election of President can be filed either by a
candidate at the election or 20 electors joining together in the petition.
 Clause (4) of Article 71 declares that the election of a person as President shall not be
called in question on the ground of the existence of any vacancy for whatever reason
among the members of the Electoral College electing him.”

2. EXECUTIVE POWER OF PRESIDENT

 All executive actions of the Government of India are formally taken in his name.
 He can make rules specifying the manner in which the orders and other instruments
made and executed in his name shall be authenticated.
 He can make rules for more convenient transaction of business of the Union
government, and for allocation of the said business among the ministers.

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 The Government of India (Transaction of Business) Rules 1961 has been framed under
Article 77(3) of the Indian constitution, which provides that the President can make
rules for the convenient transaction of business of the Government. It also provides
for the allocation of business among the various committees.

FEATURES OF THE RULE

 A total of eight cabinet committees are established under this rule.
 Mainly concerned with appointments, security, and economic affairs of the country.
 The Ministry of Law is to be consulted for legislative proposals, forming rules and
orders, and the creation of contracts on behalf of the Government.
 The Prime Minister has the power to amend the First Schedule, which provides for the
allocation of business among various committees. He can add or reduce the numbers
of Committees as well as modify their functions.

POWERS RELATING TO THE COUNCIL OF MINISTERS

The President has to exercise his Executive powers on the advice of the Council of
Ministers, so he is subjected to some limitations in exercising powers. But he has the
power to send back the recommendation of the council for reconsideration. The council
may or may not accept such a recommendation. So, the President while being the
Executive head in name, the actual power resides with the Council of Ministers headed
by the Prime Minister.
But despite such limitations, the Prime Minister also has certain duties which he has to
fulfil towards the President, and it includes, The duty to communicate all the decisions
made by the council on the administration and legislation of the country, the duty to such
information as the President may demand etc.

POWER TO MAKE APPOINTMENTS

The President has the power to appoint many constitutional officers and the
members of the Union Government. They include:
 The Prime Minister
 Chief Justice of India
 Attorney General of India
 Comptroller and Auditor General of India
 Governors of States
 Chairperson of the National Human Rights Commission
 Chief Election Commissioner and other Election Commissioners
 Administrators of Union Territories

3. LEGISLATIVE POWER OF THE PRESIDENT

POWER OF THE PRESIDENT TO SUMMON, PROROGUE AND
DISSOLVE THE HOUSE
 Article 85(1): He summons both the houses of the Parliament, which means he can
order them to be present in a given specified time and place.
 Article 85(2)(a): Prorogue both the houses of the Parliament, which means he can
discontinue the session of the Parliament without dissolving the houses.

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 Article 85(2)(b): Dissolve the Lok Sabha, either before its complete term or after the
completion of the term, in either case fresh general elections will have to take place
to appoint new members to the house.

POWER OF THE PRESIDENT TO ADDRESS THE HOUSE

According to Article 87, the President gives a special opening address to both the
houses of the
Parliament assembled during:
 Article 87 (1): The first session after each general election to both the House of the
people, after all the members have taken their oath and the Speaker has been elected.
 Beginning of the first session every year where both the houses are present together.
In this session, the President talks about the various policies and programmes of the
ruling government and also highlights the important works that were done by them
in the previous year.
 Article 87(2): Rules should be made about the allotment of time to different matters
for discussion by the President in such addresses.
Power of the President to present reports to the house.
The President of India while holding the office has to present several reports in
front of the Parliament from time to time, those reports are-
1. Budget
2. CAG Report
3. UPSC and Finance commission Report.
Power of the President to formulate special rule:
 Under Article 239, The President has the power to formulate special rules for the
Union Territories.
 In certain circumstances, the President can make rules for the peace, progress, and
good governance of the Union Territories of Andaman and Nicobar Islands,
Lakshadweep, Dadra and Nagar Haveli, Daman and Diu and Puducherry.
 In the case of Puducherry, the President can only make rules when the assembly is
dissolved and suspended.
 He appoints speaker, deputy speaker of Lok Sabha, chairman and deputy chairman of
Rajya Sabha
 He consults the election commission of India on questions of disqualifications of MPs.
Power of the President to assent to bills
A bill is a legislative draft which includes measures or rules for smooth functioning
of a country. If a bill successfully gets agreed and passed by the members of the
Parliament, after this the President agrees and gives his assent to it and then it
becomes an act.
 According to the Article 111 when a bill is passed by the houses it must be presented
before the president, he would either give his assent to the bill or withhold his assent
therefrom provide that the president may as soon as possible send the bill back to the
house without making amendments back to the house for reconsideration and if the
house sends that bill again by making or not making changes, then the President will
have to give his assent to it.
 In case of Ordinary bills, the President can agree to the terms of the bill, withhold his
assent or can send it back to the Parliament to make necessary changes.

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 In case of Money bills, he can either give his assent or withhold his assent, he cannot
send it back for reconsideration.
 In case of Constitutional Amendment bills, he has to agree with the bill, he neither can
disagree nor send it back to the House.
When a bill passed by a state legislature is reserved by the governor for consideration of
the President, the President can:
 Give his assent to the bill, or
 Withhold his assent to the bill, or
 Direct the governor to return the bill (if it is not a money bill) for reconsideration of
the state legislature. It should be noted here that it is not obligatory for the President
to give his assent even if the bill is again passed by the state legislature and sent again
to him for his consideration.

VETO POWER
ABSOLUTE VETO OF THE PRESIDENT:
When the President exercises his absolute veto, a bill never sees the day of the
light. The bill ends even after passed by the Indian Parliament and does not
become an act.President uses his absolute veto in the following two cases:
1. When the bill passed by the Parliament is a private member bill.
2. When the cabinet resigns before President could give his assent to the bill. The new
cabinet may advise the President to not give his assent to the bill passed by the old
cabinet.
In India, the President has exercised his absolute veto before. In 1954, it was
exercised by Dr. Rajendra Prasad as a President and later in 1991, it was used by
the then President R Venkataraman.

SUSPENSIVE VETO OF THE PRESIDENT:

1. The President uses his suspensive veto when he returns the bill to the Indian
Parliament for its reconsideration. If the Parliament resends the bill with or without
amendment to the Indian President, he has to approve the bill without using any of
his veto powers.
2. His suspensive veto can be over-ridden by the repassage of the bill by the Indian
Parliament
3. With respect to state bills, state legislature has no power to override the suspensive
veto of President. The Governor can withhold the bill for the President’s consideration
and even if state legislature resends the bill to governor and governor to President,
he still can withhold his assent.
4. The President cannot exercise his suspensive veto in relation to Money Bill.

POCKET VETO OF THE PRESIDENT:

1. The bill is kept pending by the President for an indefinite period when he exercises
his pocket veto.
2. He neither rejects the bill nor returns the bill for reconsideration.
3. Constitution does not give any time-limit to President within which he has to act
upon the bill. Therefore, the President uses his pocket veto where he doesn’t have
to act upon the bill.
4. Unlike American President who has to resend the bill within 10 days, Indian
President has no such time-rule.

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5. Indian President has exercised this veto power before. In 1986, President Zail Singh
exercised this pocket veto.
6. President has no veto power when it comes to the constitutional amendment bills.
Power of the President to dissolve the Lok Sabha:
 Under Article 83, of the Indian Constitution, the President of India has the power to
dissolve the Lok Sabha. Lok Sabha can be dissolved in following circumstances-
 Generally, the President dissolves the Lok Sabha on the advice of the Prime Minister
after the completion of its tenure of 5 years, in order to command a majority in the
Lok Sabha again.
 If the Prime Minister on losing the majority advises the President, then he can dissolve
the Lok Sabha.
 The President may hear the Parliament and dissolve the Lok Sabha if he finds that
there is conflict within the ruling party, and the party position is confusing.
 He can dissolve the Lok Sabha if he finds the Prime Minister is acting
unconstitutionally, abusing his powers and majority in the House. Here, this act of the
President would be considered constitutional.

ORDINANCE MAKING POWER OF THE PRESIDENT

Ordinances were included in the Constitution of India from Government of India
Act, 1935, which gave the authority to the Governor General to promulgate
Ordinances. Section 42 and 43 of the said act dealt with Ordinance making power
of the Governor General which states that, ‘If circumstances exist which render it
necessary for him to take immediate action’, then only he can use this power.
Article 123 of the Indian Constitution grants the President of India certain Law-
making powers i.e. to Promulgate Ordinances when either of the two Houses of
the Parliament is not in session which makes it impossible for a single House to
pass and enact a law. Ordinances may relate to any subject that the parliament
has the power to make law and would be having same limitations. Thus, the
following limitations exist:
 When legislature is not in session: the President can only promulgate when either
of the House of Parliament is not in session.
 Immediate action is needed: the President though has the power of promulgating
the ordinances but same cannot be done unless he is satisfied that there are
circumstances that require him to take immediate action.
 Parliament should approve: After the ordinance has been passed it is required to be
approved by the parliament within six weeks of reassembling. The same will cease to
operate if disapproved by either House.
Parliament should approve after the ordinance has been passed it is required to
be approved by the parliament within six weeks of reassembling. The same will
cease to operate if disapproved by either House.
B.R. Ambedkar, who stated that ordinance-making powers were necessary since
existing law might be deficient to deal with a situation “which may suddenly and
immediately arise”. According to him, it was necessary to: confer upon the
President the power to promulgate a law which will enable the executive to deal
with that particular situation because it cannot resort to the ordinary process of
law” when the legislature was not in session.

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SIGNIFICANCE OF ORDINANCE
1. Emergent Situation:- POSCO Amendment after Kathua Rape case, Criminal
amendment after Nirbhaya.
2. Policy Paralysis: In order to ensure policy paralysis does not arise, ordinance are
used.
3. Disruption in House: leads to delays thereby impacting legislative process
4. President is not a Rubber Stamp, which is displayed by ordinance making powers.
Issues around Ordinance
 Deliberate bypassing of the legislature: For example, the Telecom Regulatory
Authority of India (TRAI) was created in 1997 first by an ordinance and then by an Act
of Parliament. Similarly, the Electricity Regulatory Commissions Ordinance was
promulgated in 1998, for rationalising electricity tariffs (meaning hiking tariffs) when
the government found it difficult to pass the concerned Bill in the legislature.
 Infringement of principle of separation of powers: The power of the executive to
issue ordinances goes against the principle of separation of powers as law making is
the domain of legislature.
 The satisfaction of the President: Some ordinances that were meant to smoothen
legal hurdles caused by existing laws but whether there is an emergent condition or
not. These included the Enemy Property (Amendment and Validation) Ordinance,
2016; Indian Medical Council (Amendment) Ordinance, 2016; Citizenship
(Amendment) Ordinance, 2015; Coal Mines (Special Provisions) Ordinance, 2014, etc

SUPREME COURT JUDGEMENTS:

 D.C. Wadhwa v. State of Bihar, the State of Bihar’s promulgating and re-promulgating
ordinances were challenged as there was promulgation of the same in “massive scale”.
Between the year 1967-81, 256 ordinances were promulgated and then re-
promulgated and some among them remain into existence for up to 14 years. Chief
Justice P.N. Bhagwati observed: “The power to make an ordinance is to meet an
extraordinary situation and it should not be made to meet political ends of an
individual. Though it is contrary to democratic norm for an executive to make a law
but this power is given to the President to meet emergencies so it should be limited
in some point of time.”
 Krishan Kumar Singh vs State of Bihar: The Supreme Court had already declared in
1986, in D.C. Wadhwa, that repeated re-promulgation of ordinances was
unconstitutional. Now, in Krishna Kumar Singh v. State of Bihar, it goes deeper and
concludes that the failure to place an ordinance before the legislature constitutes
abuse of power and a fraud on the Constitution.
 R.C Cooper Case: Held that the President’s decision could be challenged on the
grounds that ‘immediate action’ was not required; and the Ordinance had been
passed primarily to by-pass debate and discussion in the legislature.
 T Venkata Reddy vs. State of Andhra Pradesh (1985): Ordinance making power of the
President and the Governor was a legislative power, comparable to the legislative
power of the Parliament and state legislatures respectively.
An ordinance would be made open to challenge on the following grounds:
 It constitutes colourable legislation; or
 It contravenes any of the Fundamental Rights as mentioned in our Constitution; or It
is violative of substantive provisions of Our Constitution such as an article 301; or Its
retrospectively is unconstitutional.

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Comparison of ordinance Making power of President and Governor

Ordinance making power of President Ordinance making power of Governor

The President can promulgate an The Governor can promulgate an

ordinance only when both the Houses of ordinance only when the legislative
Parliament are not in session or when assembly is not in session or in case of
either Lok Sabha or Rajya Sabha is not in existence of legislative council, when both
session. the Houses of the state legislature are not
in session or when either of the two
Houses of the state legislature is not in
session.

He can promulgate an ordinance only He can promulgate an ordinance only

when he is satisfied that circumstances when he is satisfied that circumstances
exist which render it necessary for him exist which render it necessary for him to
to take immediate action. take immediate action.

The President’s power of ordinance is Governor power for the ordinance is like
similar to the legislative power of the the legislative power of the state
Parliament. The President can issue legislature. He can promulgate ordinances
ordinances only on those subjects on only on those subjects on which the state
which the Parliament can make laws. legislature can make laws.

The ordinance introduced by him can be The ordinance introduced by him can be
withdrawn anytime. withdrawn anytime.

The President can never issue an The Governor can never issue an
Ordinance to amend the Indian Ordinance to amend the Indian
Constitution. Constitution.

He needs no instructions for making an He cannot make an ordinance without the

ordinance. instructions from the President in three
cases: If a bill containing the same
provisions would have required the
previous sanction of the President for its
introduction into the state legislature.If he
would have deemed it necessary to
reserve a bill containing the same
provisions for the consideration of the
President.If an act of the state legislature
containing the same provisions would
have been invalid without receiving the
President’s assent.

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12
UNION EXECUTIVE
Chapter (VICE PRESIDENT)
TOPICS TO BE COVERED
1. Constitutional Provisions of Vice President of India
2. American Vice President

1. CONSTITUTIONAL PROVISIONS OF VICE

PRESIDENT OF INDIA
Article 63 provides that there shall be a Vice-President of India. The Vice-President
is declared to be the ex officio Chairman of the Rajya Sabha. In the event of the
occurrence of any vacancy in the office of the President by reason of his death,
resignation or removal, or otherwise, Vice-President shall act as the President until
the date on which the new President is elected in accordance with the provisions
of the Constitution to fill such vacancy, enters upon his office.
Again, when the President is unable to discharge his functions owing to absence,
illness or any other cause, the Vice-President shall discharge his functions until the
date on which cause President resumes his duties.

QUALIFICATIONS FOR THE OFFICE OF VICE-PRESIDENT [ARTICLE 66

CLAUSE (3) AND (4)]
Clause (3) of Article 66 lays down that a person to be eligible for the office of the
Vice-
President, must possess the following qualifications:
1. He must be a citizen of India.
2. He must have completed the age of thirty-five years.
3. He must be qualified for election as a member of the Rajya Sabha.
4. It requires that he must be registered as a voter in any Parliamentary Constituency.
5. He must not hold any office of profit under the Government India, or the Government
of any State, or under any local, or other authority subject to the control of any of the
said Government
Election of the Vice-President [Article 66(1)]:
The Vice-President is elected by the members of an Electoral College consisting of the
members of both Houses of Parliament in accordance with the system of proportional
representation by means of single transfer vote and the voting at such election is done
by secret ballot.
The President and Vice-Presidential Elections Act, 1997, provides that there should be 20
proposers and 20 seconders to support the candidature of a person in the election of
the Vice-President.

TIME FOR HOLDING ELECTION (ARTICLE 68)

Clause (1) Article 68 provides that an election to fill a vacancy cause by the
expiration of the term of Vice-President shall be completed before expiration of
the term of the earlier Vice-President.

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While an election to fill a vacancy occurring by reason of his death, resignation or

removal or otherwise shall be held as soon as possible after the occurrence of the
vacancy.

TERM OF OFFICE OF THE VICE-PRESIDENT, RESIGNATION (ARTICLE

67)
Article 67 lays down that Vice-President holds office for a term of five years from the date
on which he enters upon his office.” He shall continue his office even after the expiration
of his term of five years until his successor enters upon his office.” The Vice-President
may, by writing under hand, addressed to the President, resign his office.

REMOVAL OF VICE-PRESIDENT [ARTICLE 67 (B)]

Vice-President may be removed from his office by a resolution of the Rajya Sabha passed
by a majority of all the members of the Rajya Sabha and agreed to by the Lok Sabha.
However, no resolution for the removal of the Vice-President shall be moved in the Rajya
Sabha unless at least fourteen days’ notice has been given of the intention to move the
resolution. It may be noticed that the Constitution does not prescribe any ground in
which a resolution for the removal of Vice-President can be moved.

OATH OF OFFICE (ARTICLE 69)

Article 69 says that the Vice-President, before entering upon his office, shall make
and subscribe before the President or some person appointed in that behalf by
him, an oath or affirmation in the following form, that is to
“I, A.B., do swear in the name of God/solemnly affirm that I will bear true faith and
allegiance to the Constitution of India as by law established and that I will
faithfully discharge the duty upon which I am about to enter.”

CONDITIONS OF OFFICE [ARTICLES 66(2), 64 & 65 (3)]:

The Vice-President shall not be a member of either House of Parliament or of a House of
the Legislature of any State, and if a member of either of such House is elected as the
Vice-President then, he shall be deemed to have vacated his seat in that House on the
date on which he enters upon his office as Vice-President.
The Vice-President shall be ex officio Chairman of the Rajya Sabha and shall not hold any
other office of profit. During any period when the Vice-President acts as President or
discharges the functions of the President under Article 65, he shall not perform the duties
of the office of Chairman of the Rajya Sabha. During such period, he shall have all the
powers and immunities of the President and be entitled to such emoluments, allowances
privileges as are specified in the Second Schedule to the Constitution.
It may be noticed that the Constitution does not provide the salary, allowances or the
privileges to which the Vice-President is entitled to as Vice-President. He, therefore, does
not receive any salary or allowance as a Vice-President. When he is acting as President
or discharging his functions the Vice-President is entitled to such salary and allowances
as are payable to the President. And, when he is not so acting, he shall be ex-officio
Chairman of the Rajya Sabha and shall be entitled to such salary and allowances as are
determined under Article 97 for the Chairman of the Rajya Sabha.
After scanning the provisions relating to the office of the Vice-President it may be
noticed that not much importance is given to this office. The office is created for
the purpose of providing for an event, when there is a vacancy in the office of the
President or when the President is unable to discharge his functions owing to
absence, illness or any other cause. The normal function of the Vice-President on
the other hand, is to preside over the Rajya Sabha.

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2. AMERICAN VICE PRESIDENT

 The Constitution provides for the office of Vice- President of the United States as well.
He is elected along with the President in the same manner. The Presidential electors
cast two votes one for President and the other for the Vice-Presidential candidate. A
candidate for Vice-Presidency securing absolute majority of votes is declared elected.
In case, no candidate secures an absolute majority of votes, the Senate elects one out
of the two candidates securing the highest votes. The qualifications of a Vice-
presidential candidate are the same as for the presidential candidate.
 Two principles are kept in view in the election of the Vice-President. First is that the
President and Vice-President should not belong to the same state, and the second is
that the parties while nominating their candidates for the two offices should keep in
view the fact that both the candidates belong to different wings of the party.

FUNCTION OF THE VICE PRESIDENT

 The Vice-President of America is the ex-officio chairman of the Senate. He has a casting
vote which can be used in case of a tie. Otherwise as presiding officer, he has very
little authority, because the Senate has its own rules and customs which the presiding
officer must follow. It does not even appoint senatorial committees. His duties as
chairman are formal and perfunctory.
 The Vice-President is to succeed the President in case he dies, resigns, or is removed
by impeachment. In this case he occupies the President’s office for the remainder of
the term and exercises all powers of presidential office. On eight occasions, Vice-
Presidents succeeded to the presidential office on account of the death of the
Presidents. It can happen otherwise too. To quote an example, Gerald Ford became
President in August 1974 following Nixon’s resignation.
 Sometimes the Presidents include the Vice- Presidents in their Cabinet as a matter of
courtesy. For example, President Roosevelt included Vice-President Henry Wallace in
his Cabinet. President Eisenhower sent Vice-President Nixon on a tour of the Middle-
East, India and Pakistan. The object of associating the Vice-President with the
administration is to give him some training in this regard so that he may be able to
handle the presidential office if the opportunity arises.

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13 UNION EXECUTIVE
(CENTRAL COUNCIL OF
Chapter MINISTER)
TOPICS TO BE COVERED
1. The Prime Minister of India
2. Central Council of Ministers
3. Cabinet

1. THE PRIME MINISTER OF INDIA

Article 74(1) provides: “There shall be a Council of Ministers with Prime Minister
at the head to aid and advise the President who shall, in the exercise of his
functions, act in accordance with such advice”.

APPOINTMENT OF THE PRIME MINISTER [ARTICLE 75 (1)]

Prime Minister is the head of the Union Council of Ministers. He is appointed by
the President. This power of the President must be read in the light of the
requirement contained in Clause (3) of Article 75 which provides The Council of
Ministers shall be collectively responsible to the House of the people”.
“Collective Responsibility”:
It has two meanings:
The first meaning which can legitimately be ascribed to it is that all members of a Govt.
are unanimous in support of its policies and would exhibit that unanimity on public
occasions although while formulating the policies, they might have expressed a
different view in the meeting of the Cabinet.
The other meaning is that Ministers, who had an opportunity to speak for or against
the policies in the Cabinet are thereby personally and morally responsible for its
success
Doctrine of collective responsibility has practical advantages.
 First, it counteracts departmental separation for each minister has to be concerned
with policies of other departments.
 Second, it prevents the policy of one department being determined unilaterally. Since
it is the Cabinet as a whole which decides, ministers are less likely to be over-
influenced by their civil servants.
 Third, it ensures that Cabinet decisions are based on principles and not on
personalities. Collective responsibility does not apply to a minister’s responsibility for
his permanent officials or for his personal mistakes and failure.
Constitution, thus, incorporates the principle of “Responsible government”
according to which, the executive is made answerable, for every act it does in
relation to the administration of the affairs of the country, to the popular House
of the Legislature. In this regard, the framers of the constitution of India have
adopted the British Cabinet System. Therefore, the conventions operating under
the English Constitution, in regard to the relationship between the Crown and the
Ministers, are relevant in the interpretation of the Indian Constitution as well.

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RELATION BETWEEN PM AND PRESIDENT

Following provisions of the Constitution deal with the relationship between
President and Prime Minister:
Article 74: It states that there shall be a council of ministers with the Prime Minister at
the head to aid and advise the President who shall, in the exercise of his functions, act
in accordance with such advice. However, the President may require the council of
ministers to reconsider such advice and the President shall act in accordance with the
advice tendered after such reconsideration.
Article 75: It states that:
 The Prime Minister shall be appointed by the President and the other ministers shall
be appointed by the president on the advice of the Prime Minister.
 The ministers shall hold office during the pleasure of the president.
 The council of ministers shall be collectively responsible to the House of the People.
Article 78: It states that it shall be the duty of the Prime Minister:
 to communicate to the President all decisions of the council of ministers relating to
the administration of the affairs of the Union and proposals for legislation.
 to furnish such information relating to the administration of the affairs of the Union
and proposals for legislation as the President may call for.
 if the President so requires, to submit for the consideration of the council of ministers
any matter on which a decision has been taken by a minister, but which has not been
considered by the council.
 He/she also advises the president about the appointment of important officials like
the attorney general of India, Comptroller and Auditor General of India, chairman and
members of the UPSC, election commissioners, chairman and members of the finance
commission, and so on.

2. CENTRAL COUNCIL OF MINISTERS

Constitution of India which expressly lays down provisions for Council of Ministers
under Article 74 and 75 providing with status of the Council of Ministers, and their
appointment, tenure, responsibility, qualification, oath and salaries and
allowances respectively. Articles 74, and 75 of Indian Constitution sketch out the
structure of Central Council of Ministers. Article 77, 78 are certain provisions that
are associated with Council of Ministers.

ARTICLE 74 OF THE INDIAN CONSTITUTION

 Article 74 of the Constitution of India deals with the function of the Council of
Ministers which is to aid and advise the President of the nation. The provision
reads as:
 The Prime Minister along with the Council of Ministers will provide aid and advise the
President will act in accordance with such advice in order to execute his/her functions.
Provided that the President may require the Council of Ministers to reconsider such
advice, either generally or otherwise, and the President shall act in accordance with
the advice tendered after such reconsideration.
 Any confusion concerning the first point will not be a subject-matter of the courts.
It is to be noted that although the Council of Ministers can assist the President in
executing his functions, such advice or assistance is subject to reconsideration if
asked by the President.

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ARTICLE 75 OF INDIAN CONSTITUTION

Article 75 of the Indian Constitution concerns other provisions associated with the
Council of Ministers consisting of six clauses namely:
 While the President appoints the Prime Minister, the Council of Ministers is to be
appointed by the President in alignment with the Prime Minister’s advice.
 A minister is supposed to hold his office the way the President wants.
 The Central Council of Ministers is collectively responsible to the House of People, or
the Lok Sabha.
 The responsibility of administering oaths of office, and of secrecy of the ministers
according to the procedure provided in the Third Schedule vests of the President.
 For a minister to be part of the Central Council of Ministers, has to be a member of
either of the Houses of Parliament for a minimum period of six consecutive months.
Absence of which will cease the individual to be a minister.
 The salaries and allowances of Ministers shall be such as Parliament may from time
to time by law determine and, until Parliament so determines, shall be as specified in
the Second Schedule
 The 91st amendment brought in two additions to Article 75 namely:
 The Prime Minister, and the Council of Ministers, constituting the total number of
ministers shall not exceed 15% of the total strength of the Lower House of the
Parliament.
 Members of a political party who have been disqualified on grounds of defection will
be disqualified to be designated as a minister, irrespective of whichever House of the
Parliament the member belongs to.

ARTICLE 77 OF THE INDIAN CONSTITUTION

The provision for conduct of the business of GOI has been incorporated under Article 77
of the Indian Constitution that provides primary focus on the President of India who has
the power to have his name on every executive action taken by the Indian government.
Clause 3 of Article 77 states that it is President who will be responsible for preparing
governing rules for business transactions and allocating such business transactions
among the ministers as, and however the President feels.

ARTICLE 78 OF THE INDIAN CONSTITUTION

Duties of Prime Minister have been envisaged in Article 78 of the Constitution of
India.
Duties of Prime Minister have been listed hereunder:
 It is the responsibility of the Prime Minister to keep the President well informed about
the decisions undertaken by the Council of Ministers in association with administrative
matters with legislation proposals.
 The Prime Minister shall furnish certain administrative information concerning Union
affairs to the President as and when he demands.
 If the President so requires, to submit for the consideration of the Council of Ministers
any matter on which a decision has been taken by a minister, but which has not been
considered by the Council.

ARTICLE 88 OF THE CONSTITUTION OF INDIA

Article 88 of Indian Constitution talks about the rights of the ministers with respect to the
Houses of Parliament. Every Minister and Attorney General of India shall have the right
to speak in, and otherwise participate in, the proceedings of either House, any joint

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sitting of the Houses, and any committee of Parliament to which he may be named a
member but shall not be entitled to vote for Officers of Parliament by virtue of this article.

RESPONSIBILITY OF MINISTER
 Individual Responsibility: It states that the ministers holds office in the pleasure of
the president from which we can infer that the president has the power to remove the
minister even if the council of ministers enjoys majority or confidence on the floor of
the house but there is an important condition to it .As we all know that India has
parliamentary form of government that we have taken from Britain .Since India
follows the Westminster model wherein the president is not the real executive and is
mere a rubber stamp it needs to exercise its power under the real head that is the
council of ministers headed by the Prime minister. According to article 74 of the
constitution the president exercises his power under the aid and advice of the council
of ministers headed by the prime minister. Thus, we can conclude the president can
remove the ministers only on the advice of the prime minister.
 No legal responsibility: In Britain every order is countersigned by the minister and
in case of violation the minister is held responsible while in India there is no such
provision of legal responsibilty.it is not required that a presidential order is
countersigned by the minister. Hence in India we have the system of no legal
responsibility.
 Collective Responsibility: According to this principle the council of ministers are
collectively responsible to the Lok Sabha. This further means that they have joint
responsibility towards Lok Sabha for their being in confidence or commission or not
being in confidence i.e. omission

COMPOSITION OF COUNCIL OF MINISTER

 Cabinet Ministers: Their number is between 15- 20. They are important ministers
hold key portfolios. They constitute the Cabinet i.e., the powerful policymaking and
decision-making part of the Council of Ministers.
 Ministers of State: They constitute the second category of ministers. They are not the
members of the Cabinet. A minister of state either holds an independent charge of a
small department or is attached to a cabinet minister. While some departments like
Home, External Affairs, Defence, Finance, Agriculture have 2 or 3 Ministers of State,
the departments like Civil Aviation, Information and Broadcasting, Labour Welfare,
Surface Transport and Textiles; each is headed by a Minister of State.
 Deputy Ministers: They are helping ministers attached to the Cabinet Ministers or
the Ministers of State. No Deputy Minister holds an independent charge of any
department. The present Union Council of Ministers has no Deputy Minister as its
member.
 Parliamentary Secretaries: They are neither minister nor are they assigned any
administrative work. Their sole function is to help the ministers in the Parliament. They
do not draw any salary.
 Office of Deputy Prime Minister: The Constitution does not provide for the office of
the Deputy Prime Minister. As such it is the sweet will of the Prime Minister to have or
not to have a Deputy Prime Minister in his Council of Ministers

ROLE OF THE COUNCIL OF MINISTERS:

The role Council of Ministers of can be enumerated as under:
 Formulation, execution, evaluation and revision of public policy in various spheres
which the party in power seeks to progress and practice.

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 Coordination among various ministries and other organs of the government which
might indulge in conflicts, wastefulness, duplication of functions and empire building.
 Preparation and monitoring of the legislative agenda which translated the policies of
the government in action through statutory enactments.
 Executive control over administration through appointments, rulemaking powers and
handling of crises and disasters – natural as well as political.
 Financial management through fiscal control and operation of funds like Consolidated
Fund and Contingency Funds of India.

3. CABINET
Cabinet is a smaller body with 15 to 20 ministers. It is the nucleus of the council of
ministers and only includes cabinet ministers. It is the true seat of power in the
government.
 The 44th Constitutional Amendment Act of 1978 inserted ‘Cabinet ‘into Article 352 of
the Constitution. As a result, it was not included in the original text of the Constitution.
 Also, Article 352 only defines the cabinet as “the council consisting of the prime
minister and other ministers of cabinet rank appointed under Article 75,” without
describing its powers and functions.
 In other words, its role in our political and administrative system is based on the
parliamentary government conventions developed in Britain.

ROLE OF CABINET
 It is our political and administrative system’s highest decision-making authority.
 It is the Central Government’s main policy-making body.
 It is the Central government’s supreme executive authority.
 It is the central administration’s chief coordinator.
 It serves as President’s advisory body, and its recommendations are legally binding on
him.
 As the chief crisis manager, he is in charge of all emergency situations.
 It addresses all major legislative and financial issues.
 It has authority over higher-level appointments such as constitutional authorities and
senior secretariat administrators.
 It is in charge of all foreign policies and foreign affairs.

CABINET COMMITTEES
Under the Article 77 of the Constitution, President has power to make rules for
convenient transaction of business of Union Government and for allocation of
work among ministers. Under these the President has notified, two sets of rules:
1. Allocation of Business Rules deals with distribution of subject among different
ministries and departments
2. Transaction of Business Rules deals with disposal of ministries, inter-departmental
consultations, committees of cabinet, consultation with Prime Minister and President
etc.
According to Transaction of Business Rules, Prime Minister has power to constitute
or discontinue Standing Committees of the Cabinet and the functions assigned to
them.

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Features:
 The cabinet committees are an extra constitutional body, which means they are not
mentioned in the constitution.
 The Prime Minister sets up different cabinet committees with selected members of
the Cabinet and assigns specific functions to these committees.
 The Prime Minister may even change the numbers of committees and modify the
functions assigned to them.
 If the Prime Minister is a member of any such committee, he acts as the head of the
committee.
 The membership varies from three to eight.
 Usually, only cabinet ministers are the member of these committees. But sometimes
non-cabinet ministers may also be the member or may be special invitees to the
committee.
 They solve issues and formulate proposals for the consideration of the cabinet and
take decisions on matters assigned to them. However, the cabinet is empowered to
review such decisions.

RATIONALE FOR CABINET COMMITTEES

 Help in taking decisions where multiple ministries are involved
 Help in horizontal consultation and coordination and dialogue between different
ministries
The composition and functions of various cabinet committees are mentioned
below:

CABINET COMMITTEE ON POLITICAL AFFAIRS

 It addresses problems related to Centre-state relations.
 It also examines economic and political issues that require a wider perspective but
have no internal or external security implications.

CABINET COMMITTEE ON ECONOMIC AFFAIRS

It is supposed to review economic trends, problems and prospects for evolving a
consistent and integrated economic policy, coordinate all activities requiring policy
decisions at the highest level, deal with fixation of prices of agricultural produce and
prices of essential commodities.
It considers proposals for investment of more than Rs 1,000 crore, deals with industrial
licensing policies and reviews rural development and the Public Distribution System.

APPOINTMENTS COMMITTEE OF THE CABINET

 It makes appointments to posts of the three service chiefs, Director General of Military
Operations, chiefs of all Air and Army Commands, Director General of Defence
Intelligence Agency, etc.
 It decides on all important empanelment’s and shifts of officers serving on Central
deputation.

CABINET COMMITTEE ON SECURITY

 It deals with issues relating to law and order, internal security and policy matters
concerning foreign affairs with internal or external security implications and also goes
into economic and political issues related to national security.
 It considers all cases involving capital defence expenditure more than Rs 1,000 crore
and also issues related to the Department of Defence Production and the Department

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of Defence Research and Development, Services Capital Acquisition plans and

schemes for procurement of security-related equipment.

CABINET COMMITTEE ON PARLIAMENTARY AFFAIRS

 It draws the schedule for Parliament sessions and monitors the progress of
government business in Parliament.
 It scrutinises non-government business and decides which official Bills and resolutions
are to be presented.

CABINET COMMITTEE ON ACCOMMODATION

 It determines the guidelines or rules with regard to the allotment of government
accommodation.
 It also takes a call on the allotment of government accommodation to non-eligible
persons and organizations as also the rent to be charged from them.
 It can consider the allotment of accommodation from the General Pool to Members
of Parliament.
 It can consider proposals for shifting existing Central Government Offices to locations
outside the capital.

CABINET COMMITTEE ON INVESTMENT AND GROWTH

 It will identify key projects required to be implemented on a time-bound basis,
involving investments of Rs 1,000 crore or more, or any other critical projects, as may
be specified by it, with regard to infrastructure and manufacturing.
 It will prescribe time limits for giving requisite approvals and clearances by the
ministries concerned in identified sectors and will also monitor the progress of such
projects.

CABINET COMMITTEE ON EMPLOYMENT AND SKILL DEVELOPMENT

 It is supposed to provide direction to all policies, programs, schemes and initiatives
for skill development aimed at increasing the employability of the workforce for
effectively meeting the emerging requirements of the rapidly growing economy and
mapping the benefits of demographic dividend.
 It is required to enhance workforce participation, foster employment growth and
identification, and work towards the removal of gaps between requirements and
availability of skills in various sectors.
 It will set targets for expeditious implementation of all skill development initiatives by
the ministries and periodically review the progress in this regard.
 The Cabinet Committees except for Cabinet Committee on Accommodation and
Cabinet Committee on Parliamentary Affairs is headed by Prime Minister.
 Of all the Cabinet Committees, the most powerful is the Political Affairs Committee,
often described as a Super-Cabinet.

CRITICISM OF CABINET COMMITTEES

 Some of the Cabinet Committees are not able to meet regularly.
 Some of the Committees are merely recommendatory in nature while others are
empowered to take decisions.
 Lack of clear timelines for arrive at a decision.
 Several important subject though inter-ministerial in cabinet committees to nature
are not dealt by any of these committees.
 Cabinet Committees can take up a matter only if it is referred to it by order of the
Minister concerned of Cabinet

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14
UNION EXECUTIVE
Chapter (ATTORNEY GENERAL OF INDIA)

TOPICS TO BE COVERED
1. Attorney General of India
2. Solicitor General of India
3. Advocate General of India

1. ATTORNEY GENERAL OF INDIA

A person who is qualified to be appointed as Judge of the Supreme Court is
appointed as Attorney General of India (AGI) by the President under Article 76 of
the Indian Constitution and forms part of Union Executive. The Attorney-General
shall hold office during the pleasure of the President and shall receive such
remuneration as the President may determine.

IMPORTANT FUNCTIONS & DUTIES OF AGI

 Provide legal advice to Government of India (Gol) on all important matters.
 Appear in Supreme Court or in any High Court on behalf of Gol (including suits, writ
petitions, appeal and other proceedings).
 Represent Gol in any reference made by the President to the Supreme Court under
Article 143 of the Constitution.
 Defend government’s initiatives and moves if they are challenged on grounds of
constitutionality or otherwise.
 Article 88 of the Constitution confers on AGI the right to speak, right to participate in
the proceedings of either House, any joint sitting of the Houses, and any committee
of Parliament of which he may be named a member.
 However, in such proceedings, the Attorney general is not entitled to vote in such
proceedings.

RESTRICTIONS ON ALL LAW OFFICERS INCLUDING AGI

They Shall Not:
 Hold briefs against government of India or its affiliates.
 Advice any party against the Government of India or any Public Sector Undertaking.
 Defend an accused person in a criminal prosecution, without the permission of the
Government of India
 Accept appointment to any office in any company or corporation without the
permission of the Government of India.
 Advise any Ministry or Department of Gol or any statutory organization or any Public
Sector Undertaking unless a reference is received through the Ministry of Law and
Justice, Department of Legal Affairs.

AGI “PUBLIC AUTHORITY” UNDER RTI ACT

 2013-Chief Information Commission ruled that since the office of AGI did not come
within the definition of “State” under Article 12, it did not have the authority to affect

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the legal relations of others and hence would not come under the purview of the RTI
Act. The Commission also said that AG’s office, being manned by a single person, did
not have the infrastructural wherewithal to meet the requirements of the RTI Act.
 2015 Single Judge Bench of Delhi High Court ruled that AGL is a public authority as
he performs the functions required under Article 76(2) of the Indian Constitution and
fulfils the definition of public authority provided under RTI Act and there is no need to
apply the test of “state” under Article 12.
 2017 Division Bench of Delhi High Court overruled the earlier judgment because: -
Attorney General has a lawyer-client relationship and in this fiduciary capacity, the
advice tendered by AGI to the Indian Government cannot be disclosed under RTI Act.
AGI is not a functionary reposed with any administrative or other authority which
affects the rights or liabilities of persons.

CONCERNS
 Exemption from disclosure under RTI Act.
 Selective approval from central government to represent in criminal proceedings of
private clients which mostly includes cases pertaining to members affiliated to ruling
party.
 As per Law Officer (Conditions of Service) Rules, 1987, a law officer shall be appointed
for three years and can be again re-appointed for further three years. So, this often
led to politicisation of the office of Attorney General of India.

2. SOLICITOR GENERAL OF INDIA

Ministry of Personnel Public Grievances and Pensions through its notification of
June 2020 has extended the term of Mr. Tushar Mehta as the Solicitor General (SG)
for another three years. As per the notification, the Appointments Committee of
Cabinet approved the re- appointment of Mr. Tushar Mehta as Solicitor General of
India with effect from July 1 for a period of three years or until further orders.

ABOUT SOLICITOR GENERAL OF INDIA

 Law Officer (Conditions of Service) Rules, 1987 provides for the functions of Law
Officer which includes the Attorney-General for India, the Solicitor- General for India,
Additional Solicitor-General for India. Unlike the AG, Solicitor General’s duties and
functions are not provided in the Constitution of India
 He is the secondary law officer of India after then attorney General of India and assists
the AG in performing his responsibilities.
 Under the Conditions of Service Rules, Law Officer including the Solicitor General is
appointed for a period of 3 years and can be re-appointed.

DUTIES OF SOLICITOR GENERAL LAW OFFICER OF INDIA

 Give advice to the Government of India upon such legal matters, and perform legal
duties which may be referred or assigned by the Government of India.
 Appear in the Supreme Court or in any High Court on behalf of the Government of
India in cases including suits, writ petitions, appeal and other proceedings in which
the Government of India is concerned as a party or is otherwise interested.
 Represent the Government of India in any reference made by the President to the
Supreme Court under Article 143 of the Constitution.
 Discharge such other functions as are conferred on a Law Officer by or under the
Constitution or any other Law for the time being in force.

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UNION EXECUTIVE (ATTORNEY GENERAL OF INDIA)

3. ADVOCATE GENERAL OF INDIA

APPOINTMENT OF ADVOCATE GENERAL OF STATE
The governor appoints the advocate general of state on the advice of the council of
ministers of the state. The person who is eligible to hold the office of advocate general
in India must meet the following criteria:
 He must be an Indian Citizen
 He should be eligible to be appointed as the judge of the High Court; i.e. he must meet
one of the following eligibility criteria:
 A barrister having experience of more than 5 years.
 A civil servant with an experience of more than 10 years along with an experience as
a servant in Zila Court for at least 3 years.
 A pleader over 10 years in any high court
 He shouldn’t be more than 62 years of age, as is the age qualification for a High Court
Judge.
 In the order of precedence, Additional Solicitor General is above the Advocate General
of State.
 The right to be eligible for the post of Advocate General of State is conferred to only
the Indian citizens, and foreigners are not eligible to hold this public office.

FUNCTION
 He has full right to appear in any court of the state.
 He cannot vote in any proceedings of the houses of the state legislature, or any
committee initiated by the state legislature. He thought has a right to speak and be a
part of such proceedings.
 Appointment of Advocate General of State

TERM AND REMOVAL OF ADVOCATE GENERAL OF STATE

The Constitution does not fix the term of Advocate General in India. He remains in the
office during the pleasure of the Governor.
 The Constitution does not contain the procedure and grounds to remove the Advocate
General of State. Governor can remove him/her at any point in time.
 Resignation of Advocate General – He can resign from the public office by submitting
the resignation letter to the state governor.
 Conventionally, when a council of ministers of a state government resigns, the
advocate general of state too puts down his papers.

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15
Chapter PARLIAMENT
TOPICS TO BE COVERED
1. Parliament
2. Rajya Sabha
3. Lok Sabha
4. Anti-Defection
5. Officer of Lok Sabha
6. Session of Parliament: (Article 85, 86 and 87)
7. Legislative Procedure
8. Parliamentary Privileges
9. Analysis of working of Parliament
10. Parliamentary Committee

1. PARLIAMENT
In regard to the constitution of the Union Parliament, the Indian Constitution has
adopted the English pattern.’ Its two characteristics are that the Head of the State
is an integral part of the Legislature and that it is a bicameral Legislature.
Article 79 of the Indian Constitution provides “There shall be a Parliament for the
Union which shall consist of the President and two Houses to be known
respectively as the Council of States and the House of People”. The President
though cannot be a member of either House but, he is an integral part of the Union
Parliament.

SIGNIFICANCE OF PARLIAMENT
 Representative Democracy: Enables representation of various section of society, voice
their concerns and participate in decision making.
 Responsible Government: Ensures collective responsibility of the Council of Ministers
to the Lok Sabha and by extension to the people of India.
 Enables citizens to keep elected executives in control.
 Offers various tools for parliamentarians to extract accountability from government.
For ex.
 Zero Hour, Question Hour, Motions and Resolutions etc.
 Consociational democracy: Allows differing and fragmented sections of political
opinion to come together into stable coalitions over issues.
 Deliberative democracy: Highest forum for deliberation over national issues.
 Law Making functions: Only institution which can carry out Amendments to the
Constitution.
 Highest law-making body in the country
 Parliamentary Committees allow scrutinize functioning of government, its finances
and scrutinize legislations effectively. members

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Thus, legislature is not merely a law-making body but rather it is the Centre of all
democratic political process including discussions, deliberations, protests,
demonstration, unanimity, concern and co-operation.

POWER OF THE PARLIAMENT

EXECUTIVE POWER: The Constitution of India established a parliamentary form of
government in which the Executive is responsible to the Parliament for its policies and
acts.
Hence, the Parliament exercises control over the Executive through question-hour, zero
hour, half-an-hour discussion, calling attention motion etc.
CONSTITUENT POWER: The Parliament is vested with the powers to amend the
Constitution by way of addition, variation or repeal of any provision.
 The major part of the Constitution can be amended by the Parliament with special
majority, that is, a majority of the total membership of each House and a majority of
not less than two-thirds of the members present and voting in each House.
 Some other provisions of the Constitution can be amended by the Parliament with
simple majority, that is, a majority of the members present and voting in each House
of Parliament. Only a few pro- visions of the Constitution can be amended by the
Parliament (by special majority) and with the consent of at least half of the state
Legislatures (by simple majority).
 However, the power to initiate the process of the amendment of the Constitution (in
all the three cases) lies exclusively in the hands of the Parliament and not the state
legislature.
FINANCIAL POWER: No tax can be levied or collected and no expenditure can be incurred
by the Executive except under the authority and with the approval of Parliament.
Hence, the budget is placed before the Parliament for its approval.
 The enactment of the budget by the Parliament legalises the receipts and expenditure
of the government for the ensuing financial year.
The Parliament also scrutinises government spending and financial performance with
the help of its financial committees. These include public accounts committee, estimates
committee and committee on public undertakings. They bring out the cases of illegal,
irregular, unauthorised, improper usage and wastage and extravagance in public
expenditure.

JUDICIAL POWER:
 It can impeach the President for the violation of the Constitution.
 It can remove the Vice-President from his office.
 It can recommend the removal of judges (including chief justice) of the Supreme Court
and the high courts, chief election commissioner, comptroller and auditor general to
the president.
 It can punish its members or outsiders for the breach of its privileges or its contempt.
Provisional Parliament (Article 379): The Parliamentary body, the Constituent
Assembly, which enacted the Constitution, acted as Provisional Parliament till replaced
in 1952, on the constitution of the Parliament under the Constitution. The laws passed
by the Provisional Parliament, in the exercise of ordinary legislative power, do not enjoy
the status as the Constitution or some such special status, but are the laws made by
Parliament under the Constitution.
Bicameral Legislature (Article 79): The Union Parliament consists of two Houses, i.e.,
Council of States (Rajya Sabha) and the House of People (Lok Sabha). The question of a

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State Legislature to be a bicameral or unicameral Legislature has been left for each State
to decide for itself.”

2. RAJYA SABHA
COMPOSITION OF RAJYA SABHA (ARTICLE 80)
The Council of States shall consist of:
 Not more than two hundred and thirty-eight representatives of the States and of the
Union territories.
 Twelve members to be nominated by the President having special knowledge or
practical experience in respect of such matters as the following, namely: Literature,
science, art and social service.
 The allocation of seats in the Council of States to be filled by representatives of the
States and of the Union territories shall be in accordance with the provisions in that
behalf contained in the Fourth Schedule.
 The representatives of the Union territories in the Council of States shall be chosen in
such manner as Parliament may by law prescribe.

 The representatives of each union territory in the Rajya Sabha are indirectly elected
by members of an electoral college specially constituted for the purpose.
 This election is also held in accordance with the system of proportional
representation by means of the single transferable vote.
 Out of the 9 Union Territories, only 3 (Delhi, Puducherry and Jammu & Kashmir)
have representation in Rajya Sabha.
 The populations of other 6 Union Territories are too small to have any
representative in the Rajya Sabha.
 The representatives of each State in the Council of States shall be elected by the
elected members of the Legislative Assembly of the State in accordance with the
system of proportional representation by means of the single transferable vote.

Removal of Domicile Requirement: In 2003, the Parliament passed the amendment to

Section 3(1) of the Representation of People’s Act. The qualification for membership to
Council of States stated that, for qualification to Council of States, the requirement was
that one should be an elector for a Parliamentary constituency ‘in India’ as opposed to
‘in that State or territory’ which was the previous position. Thus, the earlier domicile
requirement was removed by effect of this amendment.
Article 84 of the Indian Constitution specifies the qualifications for becoming a member
of the Rajya Sabha, which includes:
 having Indian nationality;
 being at least 30 years old.
 not holding any profit-making office; and
Rajya Sabha, a permanent house:
 Rajya Sabha is a permanent body and also called a ‘continuing chamber.’ Unlike Lok
Sabha which usually runs for 5 years and the fresh elections are taken up, Rajya Sabha
has no specific tenure and it keeps on running. Therefore, it is never dissolved.
 Every second year, one-third of its members retire. For the vacant seats, fresh
elections take place. However, nominations are taken up at the beginning of the third
year.

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 Representation of the People Act, 1951 authorizes the President to make provisions
to govern the order of retirement of the members of the Rajya Sabha.

OFFICER OF RAJYA SABHA

THE CHAIRMAN AND DEPUTY CHAIRMAN (ARTICLE 89 & 90):
 Article 89 (1) declares that the Vice-President of India shall be ex officio Chairman of
the Rajya Sabha. Rajya Sabha elects one of its members to be the Deputy Chairman,
so often as the office of the Deputy Chairman becomes vacant, the Rajya Sabha shall
choose another member to be the Deputy Chairman thereof.
 The Deputy Chairman shall vacate his office if he ceases to be a member Rajya Sabha.
It is that he is elected the Deputy Chairman because he is a member of that House.
The Deputy Chairman may at any time, resign his office, by writing to the Chairman.
 The Deputy Chairman may be removed from his office by a resolution passed by the
Rajya Sabha by the majority of all the members of the House. However, no resolution
for this purpose shall be moved unless at least 14 days’ notice has been given of the
intention to move the resolution.
There is no provision for the removal of the Chairman as such. He is ex officio holder of
the office. So long as he is the Vice-President, he shall the office of the Chairman of Rajya
Sabha. If he ceases to be the Vice President, he shall no more be the Chairman of the
House. Thus, it may state that removal of the Vice-President from his office is the removal
the Chairman of Rajya Sabha.

DEPUTY CHAIRMAN TO ACT AS THE CHAIRMAN (ARTICLES 91 & 92):

 Article 91 provides that while the office of the Chairman is vacant, or during any period
when the Vice-President is acting as, or discharging the functions of the President,”
the duties of the office of the Chairman shall be performed by the Deputy Chairman.
 If the office of the Deputy Chairman is also vacant, then the duties of office of the
Chairman shall be performed by such member of the Rajya Sabha as the President
may appoint for the purpose.
 During the absence of the Chairman from any sitting of the House, the Deputy
Chairman, or, if he is also absent, such person as may be determined by the rules of
procedure of the House, or if no such person is present, such other person as may be
determined by the House, shall act as Chairman.
 Article 92 provides that at any sitting of the Rajya Sabha, while any resolution for the
removal of the Vice-President, the ex officio Chairman of the House, from his office, is
under consideration, he shall not preside over at that sitting. However, he may be
present in the House. Again, while a resolution for the removal of the Deputy
Chairman is under consideration, he shall not preside over that sitting of the House,
though he may be present in the House. He may, however, take part in the
proceedings of the House and shall have the right to speak, but shall not be entitled
to vote at all.

PANEL OF VICE CHAIRPERSON OF RAJYA SABHA:

 Under the Rules of Rajya Sabha, the Chairman nominates from amongst the members
a panel of vice-chairpersons. Any one of them can preside over the House in the
absence of the Chairman or the Deputy Chairman. He has the same powers as the
Chairman when so presiding. He holds office until a new panel of vice-chairpersons is
nominated.
 When a member of the panel of vice- chairpersons is also not present, any other
person as determined by the House acts as the Chairman.

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 It must be emphasised here that a member of the panel of vice-chairpersons cannot

preside over the House, when the office of the Chairman or the Deputy Chairman is
vacant. During such time,
 the Chairman’s duties are to be performed by such member of the House as the
president may appoint for the purpose The elections are held, as soon as fill the vacant
posts
Analysis: At Present, 79 Parliaments of the world are Bicameral. In the essay written by
James Madison, and Alexander Hamilton, it was stated that the Second Chamber enables
a reflective expression of representative opinion besides checking the propensity to yield
to the impulse of sudden and violent passion.

DEBATE IN CONSTITUENT ASSEMBLY

NEED OF SECOND CHAMBER:
 Dr Sarvepalli Radhakrishnan: Parliament is not the only legislative Body but also a
deliberative one which enables the members to debate major issues of Public
importance.
 N Gopalaswami Ayenger: To delay Legislations which might be the outcome of
passions of the moment.
 M. Ananthasayanam Ayyangar: Second chamber would enable the genius of the
people to have full play besides checking hasty legislation.

OPPONENTS OF SECOND CHAMBER

 Mohd Tahir: It is a creation of Imperialism.
 Professor Sibban Lal Saksena: It will be Clog in the wheel of Progress of the
nation.
 Examination of Working
 Positive Role Played by Rajya Sabha:
 The Upper House has cleared the bills to penalise Untouchability, Prohibit Dowry and
give RTE in 2009.
 RPA (First Amendment and Validation) Act, 2013 Passed by Rajya Sabha:- As per this
act, a person whose name has been entered in the electoral roll shall not cease to be
an elector.
 Power under Article 249:- AIS has been created by Rajya Sabha and passed resolution
for Indian Educational service, Indian Agricultural Service.
 Nominated Members add richness to the Parliamentary Debates.
 The Rajya Sabha has passed 3817 bills till the end of the 249th session in 2019.
 The recent session has been the most reproductive session (103%).
Challenges:
 Adjournment: In 13 of the 27 sittings of 2014 budget session, Question hour in Rajya
Sabha was adjourned within a few minutes because of disruptions.
 Non Domicile: Anyone can be elected from anywhere, which reduces the importance
of the region represented by the elected member.
 Fragmented Political Environment: Thus hindrance to speedy legislative process.
 Non Equal Representation: Seats are allotted on the basis of Population of the
particular state.
 Parking Lot for Defeated Politicians, Bureaucrats etc.

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 Corruption: The Ethics Committee headed by SB Chavan has noted the emerging
trend of cross voting in the elections for Rajya Sabha.
Suggestion:
 Legislative Measures: To fix the 100 number of Days of sitting supported by the law.
 Allocation of Seats in Rajya Sabha on the lines of USA:- Equal Representation from all
the States.
 Performance Related Pay of Legislators.
 Stricter Rule of Business for unruly behaviour.
The Rajya Sabha has Red Carpets while Lok Sabha has Green ones. It means if the
other House shows green Flag to any Faulty Legislation, we can show the red signal.

3. LOK SABHA
Composition of the Lok Sabha (Article 81)
Article 81(1) provides that Lok Sabha shall consist of:
 Not more than 530 members chosen by direct election from territorial constituencies
in the States; and
 Not more than 20 members to represent the Union Territories, chosen in such a
manner as Parliament may by law provide.
Allocation of Lok Sabha Seats among the States (Article 81 (2)]:
 Article 81(2) provides that there shall be allotted to each State a number of seats in
the Lok Sabha in such manner that the ratio between that number and the population
of the State, so far as practicable, is the same for all the States.
 Each State is divided in such a manner that the ratio between the population of each
constituency and the number of seats allotted to it, so far as practicable, is the same
throughout the State.
Article 81, thus, provides for uniformity of representation in the Lok Sabha in two
respects:
 as between the different States, and as between the different constituencies in the
same State.
 Delimitation for the purpose of dividing the State into territorial constituencies is a
mandate of the Constitution and is a basic feature of democracy contemplated in the
Constitution.
 The above allocation shall not be applicable for the purpose of allotment of seats to
any State so long as the population of that State does not exceed 6 million.
 In Article 81, the expression ‘population’ means the population as ascertained at the
last preceding census of which the relevant figures have been published.
Delimitation
Meaning of delimitation: Delimitation is the act of redrawing boundaries of an
Assembly or Lok Sabha seat to represent changes in population over time. This exercise
is carried out by a Delimitation Commission.
The Delimitation Commission in India is a high power body whose orders have the force
of law and cannot be called in question before any court. These orders come into force
on a date to be specified by the President of India in this behalf. The copies of its orders
are laid before the House of the People and the State Legislative Assembly concerned,
but no modifications are permissible therein by them.

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The Delimitation Commission is appointed by the President of India and works in

collaboration with the Election Commission of India.
Composition:
1. Retired Supreme Court judge
2. Chief Election Commissioner
3. Respective State Election Commissioners.
Reason for Delimitation: The main objective of delimitation is to provide equal
representation to equal segments of a population. For instance, in 1971, Assam’s
population was 1.46 crore. In 2001, it increased to 2.66 crores. Further, the population
does not grow uniformly across all areas of a state. Hence, delimitation of constituencies
is periodically carried out to reflect not only an increase in population but changes in its
distribution.
The objective is to redraw boundaries (based on the data of the last Census) in a way so
that the population of all seats, as far as practicable, be the same throughout the State.
Aside from changing the limits of a constituency, the process may result in change in the
number of seats in a state.
In the history of the Indian republic, Delimitation Commissions have been set up four
times — 1952, 1963, 1973 and 2002 under the Acts of 1952, 1962, 1972 and 2002. There
was no delimitation after the 1981, 1991 and 2001 Censuses. However, the 2002 Act did
not make any changes in total Lok Sabha seats or their apportionment between various
states. It also left out a few states including Assam, Arunachal Pradesh, Nagaland and
Manipur from the exercise due to “security risks.” The central government reconstituted
the Delimitation Commission for these four states as well as the union territory of Jammu
and Kashmir on 6 March 2020.
Delimitation is not conducted after every census: The fear of losing meaningful
political representation was especially great in the southern states which not only had
had greater success in controlling populations but also economically developed such that
they generated a lot more per capita revenue than the northern states. Delimitation on
the basis of population would disenfranchise them politically while the central
government would continue to benefit from these states’ economic contributions to the
country.
To allay these fears, the Constitution was amended during Indira Gandhi’s Emergency
rule in 1976 to suspend delimitation until 2001. Another amendment postponed this
until 2026. It was hoped that the country would achieve a uniform population growth
rate by this time.
Delimitation exercise in Jammu and Kashmir: Before the revocation of Article 370,
Delimitation of Lok Sabha seats in J&K was governed by the Constitution of India, but the
delimitation of the state’s Assembly seats was governed by the Jammu and Kashmir
Constitution and Jammu and Kashmir Representation of the People Act, 1957.
After the abrogation of J&K’s special status in 2019, delimitation of Lok Sabha and
Assembly seats in the newly-created Union Territory would be as per the provisions of
the Indian Constitution.
Delimitation Commission For Jammu And Kashmir:
1. It is headed by Justice (retired) Ranjana Desai.
2. The commission has five MPs from Jammu and Kashmir as associate members.
3. Their recommendations are, however, not binding on the commission.

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Need for Delimitation commission in Jammu and Kashmir: The reorganisation act
2019 increased the strength of the assembly in the newly carved Union Territory to 114.
This also includes 24 seats falling under Pakistan-occupied Kashmir (PoK).
In practice, the effective strength of Jammu and Kashmir Assembly when elected will
increase to 90. Earlier, it was 83.
Since the number of constituencies has altered, the boundaries of the existing
constituencies need to be redrawn before assembly election could be held in Jammu and
Kashmir.
In the final report delimitation commission is going to:
 Use 2011 census for this exercise.
 Will take into account geography, means of communication for delimitation.
 Twenty-four seats that are reserved for Pakistan-occupied Jammu and Kashmir (PoJK)
would not be delimited in this process.
 The commission will also specify the number of seats to be reserved for the SC and
the ST communities in the Union Territory. This is important because despite having
a sizeable tribal population, no seats had ever been reserved in the past for the
Scheduled Tribes in Jammu and Kashmir.
Readjustment of Seats after each census (Article 82):
 Article 82 provides that upon the completion of each census, allocation of seats in the
Lok Sabha to the States and the division of a State into the territorial constituencies
shall be readjusted by such authority and in such manner as Parliament may, by law,
determine. Such readjustment shall not be effective until the dissolution of the then
existing House and shall take effect from such date as the President may, by specify.
However, until the relevant figures for the first census taken after the year 2026 have
been published, it shall not be necessary to readjust the allocation of seats in the Lok
Sabha to the States and the division of State into territorial constituencies.
 While delimitation for the purpose of dividing the State into territorial constituencies
is a mandate of the Constitution, constituting a basic feature of democracy, but re-
adjustment of such territorial constituencies upon the completion of each census is
not such a mandate. In the event of no census taking place, there would be no
readjustment of constituencies and it would not be said to be the violation of the
mandate.
Lok Sabha seats are not readjusted after every census:
 Population control and family planning’ was included in the concurrent list with 42nd
amendment. The government of the day was keen on promoting family planning and
to control population growth.
 Hence provisions were included in articles 55, 82, 170 and 330 of the constitution not
to make any changes to the number of Lok Sabha seats, Assembly seats etc. until the
figures from the first Census after the year 2000 have been published. This was done
as a measure to boost family planning norms. In other words, any readjustment to
the total number of seats had to take place only after the year 2000 when the 2001
Census figures would be published.
 This ban on readjustment has been further extended by 84th amendment act till 2026.
While readjustment or changing the number of seats is to be done only after 2026, the
84th amendment allowed delimitation (process of fixing limits or boundaries of territorial
constituencies) or changing the reservation status of the constituencies after the 2001
Census. This was to be done without altering the total number of seats in a state. The
Delimitation act 2002 served this purpose.

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Representation in Lok Sabha: At present, the Lok Sabha has 545 members. Of these,
530 members represent the states, 13 members represent the union territories.
1. Representation of States: The representatives of states in the Lok Sabha are directly
elected by the people from the territorial constituencies in the states. The election is
based on the principle of universal adult franchise. Every Indian citizen who is above
18 years of age and who is not disqualified under the provisions of the Constitution
or any law is eligible to vote at such election.
2. Representation of Union Territories: The Constitution has empowered the Parliament
to prescribe the manner of choosing the representatives of the union territories in the
Lok Sabha. Accordingly, the Parliament has enacted the Union Territories (Direct
Election to the House of the People) Act, 1965, by which the members of Lok Sabha
from the union territories are also chosen by direct election.
3. Nominated Members: The president can nominate two members from the Anglo-
Indian community if the community is not adequately represented in the Lok Sabha.
Originally, this provision was to operate till 1960 but has been extended till 2020 by
the 95th Amendment Act, 2009.

PROCESS OF ELECTION
First Past the Post System:
 The first-past-the-post (FPTP) system is also known as the simple majority system. In
this voting method, the candidate with the highest number of votes in a constituency
is declared the winner. This system is used in India in direct elections to the Lok Sabha
and State Legislative Assemblies.
 While FPTP is relatively simple, and allows voters to choose not just between parties,
but also between particular candidates. It does not always allow for a truly
representative mandate, as the candidate could win despite securing less than half
the votes in a contest.
 In 2014, the National Democratic Alliance led by the Bharatiya Janata Party won 336
seats with only 38.5% of the popular vote. Also, smaller parties representing specific
groups have a lower
 chance of being elected in FPTP.

OTHER VOTING SYSTEM

Proportional Representation: The rationale underpinning all PR systems is to
consciously reduce the disparity between a party’s share of the national vote and its
share of the parliamentary seats; if a major party wins 40 per cent of the votes, it should
win approximately 40 per cent of the seats, and a minor party with 10 per cent of the
votes should also gain 10 per cent of the legislative seats. This congruity between a
party’s share of the vote and its share of the seats provides an incentive for all parties to
support and participate in the system. There are two major types of PR system—List PR
and Single Transferable Vote (STV).
List system: In its most simple form, List PR involves each party presenting a list of
candidates to the electorate in each multi-member electoral district. Voters vote for a
party, and parties receive seats in proportion to their overall share of the vote in the
electoral district. Winning candidates are taken from the lists in order of their position
on the lists.
STV uses multi-member districts, and voters rank candidates in order of preference on
the ballot paper in the same manner as under the Alternative Vote system. In most cases,
this preference marking is optional, and voters are not required to rank-order all
candidates; if they wish, they can mark only one.

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After the total numbers of first-preference votes are tallied, the count then begins by
establishing the quota of votes required for the election of a single candidate. The quota
used is normally the Droop quota, calculated by the simple formula:
Quota = (votes / (seats +1)) +1
The result is determined through a series of counts. At the first count, the total number
of first-preference votes for each candidate is ascertained. Any candidate who has a
number of first preferences greater than or equal to the quota is immediately elected.
In second and subsequent counts, the surplus votes of elected candidates (i.e. those
votes above the quota) are redistributed according to the second preferences on the
ballot papers. For fairness, all the candidate’s ballot papers can be redistributed, but each
at a fractional percentage of one vote, so that the total redistributed vote equals the
candidate’s surplus (the Republic of Ireland uses a weighted sample instead of
distributing fractions).
If a candidate had 100 votes, for example, and their surplus was five votes, then each
ballot paper would be redistributed according to its second preference at the value of
1/20th of a vote.
After any count, if no candidate has a surplus of votes over the quota, the candidate with
the lowest total of votes is eliminated. His or her votes are then redistributed in the next
count to the candidates left in the race according to the second and then lower
preferences shown. The process of successive counts, after each of which surplus votes
are redistributed or a candidate is eliminated, continues until either all the seats for the
electoral district are filled by candidates who have received the quota, or the number of
candidates left in the count is only one more than the number of seats to be filled, in
which case all remaining candidates bar one are elected without receiving a full quota.

Comparison of FPTP and PR system of election

FPTP PR

The country is divided into small Large geographical areas are demarcated
geographical units called constituencies as constituencies. The entire country may
or districts be a single constituency

Every constituency elects one More than one representative may be

representative elected from one constituency

Voter votes for a candidate Voter votes for the parry

A party may get more seats than votes Every party gets seats in the legislature in
in the legislature proportion to the percentage of votes
that it gets

Candidate who wins the election may Candidate who wins the elections gets
not get majority (50%+1) votes majority of votes.

Examples: U.K., India Examples: Israel, Netherlands

DISADVANTAGES OF PROPORTIONAL REPRESENTATION SYSTEM:

 A destabilizing fragmentation of the party system. PR can reflect and facilitate
a fragmentation of the party system. It is possible that extreme pluralism can allow
tiny minority parties to hold larger parties to ransom in coalition negotiations. In this
respect, the inclusiveness of PR is cited as a drawback of the system. In Israel, for
example, extremist religious parties are often crucial to the formation of a

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government, while Italy endured many years of unstable shifting coalition

governments. Democratizing countries are often fearful that PR will allow personality-
based and ethnic-cleavage parties to proliferate in their undeveloped party systems.
 A platform for extremist parties: PR systems are often criticized for giving a space in
the legislature to extremist parties of the left or the right. It has been argued that the
collapse of Weimar Germany was in part due to the way in which its PR electoral
system gave a toehold to extremist groups of the extreme left and right.
 Governing coalitions which have insufficient common ground in terms of either their
policies or their support base. These coalitions of convenience are sometimes
contrasted with coalitions of commitment produced by other systems, in which
parties tend to be reciprocally dependent on the votes of supporters of other parties
for their election, and the coalition may thus be stronger.
 Small parties getting a disproportionately large amount of power. Large parties may
be forced to form coalitions with much smaller parties, giving a party that has the
support of only a small percentage of the votes the power to veto any proposal that
comes from the larger parties.
Qualification for Membership of Parliament: Article 84 provides the following
qualifications to be possessed by a (Article 84) person to be qualified for the membership
of the Parliament –
1. He must be a citizen of India
2. He must make and subscribe before some person, authorised in that behalf by the
Election Commission, an oath or affirmation according to the form set out for the
purpose in the Third Schedule to the Constitution.
3. For the membership of Rajya Sabha, he must be not less than 30 years of age and for
the membership of Lok Sabha, he must not be less than 25 years of age; and
4. He must possess such other qualifications as may be prescribed in that behalf by or
under any law made by the Parliament. In this respect Parliament enacted the
Representation of People Act, 1951. Sections 3 and 4 of the Act require that the person
to be qualified for the membership of the Parliament must be registered as a voter in
any of the Parliamentary constituencies.

4. ANTI-DEFECTION
Disqualifications for Membership (Article 102): Article 102(1) provides that a person
shall be disqualified for chosen as, and for being, a member of either House of
Parliament if he in 102) any of the following disqualifications:
1. If he holds any office of profit under the Government of India the Government of any
State, other than any office declared Parliament, by law.
2. If he is of unsound mind and stands so declared by a comp court
3. If he is an undischarged insolvent
4. If he is not a citizen of India, or has voluntarily acquired & citizenship of a foreign State,
or is under any acknowledges allegiance or adherence to a foreign State.
5. If he is so disqualified by or under any law made by Parliament. In this respect, the
Representation of People Act, 1951 was enacted by the Parliament. The Act prescribes
the following disqualification:
 If he has been convicted or found to have been guilty of any offence or corruption or
illegal practice in an election. It means the person shall be disqualified if he is guilty of
committing corrupt practices at the election.

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 If he has been convicted by a court in India for any offence resulting in imprisonment
for two or more years.
 If he has failed to lodge a return of election expenses within the time and in the
manner required by the Act.
 If he has any share or interest in a government contract for the supply of goods, or for
the execution of any work or for the purpose of any service
 If he is a Director or Managing Agent or holds any office of profit in a government
corporation in which the Government is holding 25 per cent shares
 If he has been dismissed from Government service for corruption or disloyalty to the
State;
 None of the above disqualifications, however, operates for a period of more than six
years.
6. If he is so disqualified under the Tenth Schedule to the Constitution which provides
disqualification on the ground of defection.
Anti-Defection (ADL): “Aaya Ram Gaya Ram” was a phrase that became popular in
Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same
day in 1967. The anti- defection law sought to prevent such political defections which
may be due to reward of office or other similar conditions.
Benefits of ADL:
 Provides stability to the government by preventing shifts of party allegiance.
 Ensures that candidates remain loyal to the party as well the citizens voting for him.
 Promotes party discipline.
 Facilitates merger of political parties without attracting the provisions of Anti-
defection.
 Expected to reduce corruption at the political level.
 Provides for punitive measures against a member who defects from one party to
another.
Features of the Law:

 Disqualification on ground of defection: A legislator belonging to a political party will

be disqualified if he:
(i) voluntarily gives up his party membership, or
(ii) votes/abstains to vote in the House contrary to the direction issued by his political
party. A member is not disqualified if he has taken prior permission of his party, or
if the voting or abstention is condoned by the party within 15 days.

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 Independent members will be disqualified if they join a political party after getting
elected to the House. Nominated members will be disqualified if they join any political
party six months after getting nominated.
 Exemptions in cases of merger: Members are exempted from such disqualification
when at least two thirds of the original political party merges with another political
party. Further: (i) the members must have become members of the party they have
merged with/into, or (ii) they should have not accepted the merger and choose to
function as a separate group.
 Decision making authority: The decision to disqualify a member from the House rests
with the Chairman/Speaker of the House.
Relevance of ADL: Defection vs Dissent: This law restricts a legislator from voting in line
with his conscience, judgement and interests of his electorate. Political parties issue a
direction to MPs on how to vote on most issues, irrespective of the nature of the issue.
Delay in Disqualification: The law does not specify a time-period for the Presiding Officer
to decide on a disqualification plea. There have been several cases where the Courts
have expressed concern about the unnecessary delay in deciding such petitions. In some
Cases this delay in decision making has resulted in members, who have defected from
their parties, continuing to be members of the House.
Recurrent Merger vs Split Merger: In recent years, opposition MLAs in some states, such
as Andhra Pradesh and Telangana, have broken away in small groups gradually to join
the ruling party. In these scenarios, the MLAs were subject to disqualification while
defecting to the ruling party in smaller groups. However, it is not clear if they will still face
disqualification if the Presiding Officer makes a decision after more than 2/3rd of the
opposition has defected to the ruling party.
Voluntarily giving membership vs Resignation: The law provides for a member to be
disqualified if he ‘voluntarily gives up his membership’.
 The Supreme Court, in the Ravi Naik vs. Union of India case, has interpreted the phrase
‘voluntarily gives up his membership.’ It says: “The words ‘voluntarily gives up his
membership’ are not synonymous with ‘resignation’ and have a wider connotation. A
person may voluntarily give up his membership of a political party even though he has
not tendered his resignation from the membership of that party.
 In Rajendra Singh Rana vs. Swami Prasad Maurya and Others, the Supreme Court held
that the act of giving a letter requesting the Governor to call upon the leader of the
other side to form a Government itself would amount to an act of voluntarily giving
up membership of the party on whose ticket the said members had got elected.
Ambiguity with Article 191 and power of Speaker: The absence of the words “being
chosen as” in Article 191(2) in contrast to Article 191(1) suggests that a person who is no
longer a member due to disqualification under Tenth Schedule does not suffer from the
additional infirmity of not being allowed to become a member subsequently.
Case Study
Karnataka speaker took a controversial (because he can disqualify but not for the
Complete remaining term if he/she has chances to contest by election or re-election)
decision in disqualifying the 17 MLAs for the rest of the current assembly’s term, so that
they do not contest by-elections to seek re-election and resume their membership of the
house. The SC bench in Srimanth Bala sahib Patil vs Speaker Karnataka Legislative
assembly, however, struck down this action of the speaker as unconstitutional, and
declared them eligible for contesting the by-elections to the assembly.
Maharashtra Political crisis: Actually we need to understand two things here:
1. Role of Speaker/Deputy Speaker.

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2. Whether ADL will apply on rebel groups of Shindhe or not

Role of Speaker/Deputy Speaker:
 So, when the ruling Maha Vikas Aghadi (MVA) coalition (the Shiv Sena, the Nationalist
Congress Party and Congress) lost power after an internal split of the Shiv Sena party,
the splintering groups joined BJP to for Government.
 So as per the law, If certain people break from the party, then the anti-defection law
comes into play. Under the law, whether one person defects or 100 person defects,
you are voluntarily giving membership of the party and that may lead to
disqualification.
 The Deputy Speaker (there was no Speaker at the time) disqualified the “rebels”, who
then appealed in SC, arguing that there was a pending no-confidence motion against
the Deputy Speaker.
 Because in Nabam Rebia case (2016),SC Held the Deputy Speaker or Speaker cannot
decide on the disqualifications while his own removal was pending.
 The SC in an “interim” order stayed the Deputy Speaker’s action but also directed a
floor test. Accordingly Shindhe group won the floor test and form the government and
appoint own speaker.
Whether ADL will apply on rebel groups of Shindhe or not
Now the 5 judge bench headed by CJI argued very differently: Mr. Shinde was sworn as
Chief Minister and the opportunity given to him to establish majority on the floor of the
House on June 30 only came because the Speaker could not disqualify him. For if he had
disqualified him, all the 39 rebel MLA would have been disqualified.
A split does not mean that people who are party to the split leave the party. The Tenth
Schedule (anti-defection law) also operates when a group of persons, whether minority
or majority, claim they belong to the same party, means some of the MLA obviously
supports Thackrey, and some to Sindhe. ADL will apply on rebels from erstwhile Shiv
sena party.
RECOMMENDATIONS FOR ANTI-DEFECTION LAW
Supreme Court:
 The time limit for deciding the case of disqualification should not be more than three
months in normal conditions and the Government should set up a Permanent
Tribunal to decide the case.
 In case of a Trust vote, the Governor does not need to wait for the completion of the
entire process of disqualification.
Dinesh Goswami Committee:
 A member voluntarily gives up the membership of his political party should not be
disqualified.
 A member abstains from voting, or votes contrary to the party whip in a motion of
vote of confidence or motion of no-confidence and passing of budget should not be
disqualified.
NCRWC (National Commission to Review the Working of Constitution): Once
disqualified, it should be continued for at least next election.
Kihoto Hollohan vs Zachilhu: Constitutionality of Anti-Defection Law was upheld
by Supreme Court by 3:2 majority.
 SC ruled that Speaker/Chairman while deciding cases of anti-defection acts as a
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judicial review would not cover any stage prior to the making of decision by
Speaker/Chairman.
 Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy
and are guardians of the rights and privileges of the House.
 Tenth Schedule’s provisions were remedial and intended to strengthen the fabric of
Indian Parliamentary democracy by curbing unprincipled and unethical political
defections
Keisham Meghachandra Singh Case:
 Decision on Anti-defection of Speaker operates independently; it is not subject to
approval of House. Immunity only from parliamentary procedure Decision of Speaker
on anti-defection can be judicially reviewed and only the procedure followed cannot
be judicially reviewed.
 Judicial Review-Judicial Review cannot be available at a stage prior to the making of a
decision by the Speaker/Chairman.
 Grounds of Judicial Review-Judicial Review is allowed on Speaker’s Decision of
disqualification on grounds of infirmities based on violations of constitutional
mandates, mala fides, non-compliance with Rules of Natural Justice and perversity.
 Speaker/Chairman Quasi-Judicial Authority Speaker or Chairman, acting under Tenth
Schedule is a Tribunal. Speaker is a quasi-judicial authority who is required to take a
decision within a reasonable time.
 Judicial Power of Speaker/Chairman – Power to resolve such disputes vested in the
Speaker or Chairman is a judicial power.
 Speaker to decide case in reasonable time – Supreme Court quoted Kihoto Hollohan
where it held that Speaker while deciding case of anti-defection must decide within
reasonable time and should not take more than three months.
 Observation in Rajendra Singh Rana case – The person who has incurred
disqualification does not deserve to be MPs/MLAs even for a single day.
International Experience: Most advanced democracies do not disqualify legislators for
defecting against their parties. Such members may be subject to internal party discipline
including expulsion from the party. The seating arrangement of the person changing his
party allegiance may be modified in the House. Only in five other countries, members
can be disqualified from the House for changing political allegiances as well as voting
against the party line. These are Bangladesh, Guyana, Pakistan, Sierra Leone, and
Zimbabwe. However, in Pakistan a member can be disqualified from voting against party
lines only in certain cases. These include: (i) election of the Prime Minister/Chief Minister,
(ii) vote of confidence/no-confidence, and (iii) money Bills or constitution amendment
Bills.
Vacation of Seats-No Simultaneous Membership of more than One House (Article
101): Article 101 (1) provides that no person shall be a member of both House of
Parliament. It further says that Parliament, by law, shall make provision for the vacation,
by a person who is chosen a member of both Houses, of his seat in one House or the
other. The Representation of People Act, enacted by Parliament thus provides
1. If a person is elected to both Houses of Parliament, he will intimate, within 10 days
from the publication of the election in which House he desires to serve. In default of
such intimation within these ten days, his seat in the Rajya Sabha shall fall vacant on
the expiry of such period.
2. If a sitting member of Rajya Sabha, i.e., a person already a member of Rajya Sabha, is
elected to Lok Sabha, he may intimate his choice of the House he desires to serve

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within ten days. If he fails intimate, his seat in Rajya Sabha shall fall vacant on the
expiration of such period of ten days.
3. If a sitting member of Lok Sabha is elected to Rajya Sabha, he may intimate his choice
of the House he desires to serve within ten days of his election, in default of which, his
seat in Lok Sabha shall fall vacant on the expiration of such period of ten days.
Clause (2) of Article 101 further provides that no person shall be a member of both of
Parliament and of a House of the Legislature of a State. If a person is elected to both the
Parliament and a House of the Legislature of a State, then he may make a choice of the
House he desires to serve within such period as may be specified in Rules made by the
President. If he fails to intimate within the specified period, the choice of the House, then
on the expiration of such specified period, his seat in Parliament shall be vacant, unless
he has previously resigned his seat in the House of the State Legislature. The Prohibition
of Simultaneous Membership Rules, 1950, prescribes a period of 14 days for making the
choice of the House.
The Rules further provide that if a person is elected to the Legislature of two or more
States, his seat in the Legislatures of such States shall become vacant on the expiration
of 10 days from the date of election if he does not intimate his choice of the House within
this specified time or unless he has previously resigned his seat, in the Legislatures of all
but one of such States.
Again, if a person is elected to more than one seat in a House, he is to intimate within ten
days his choice of only one seat in that House. On his failure to do so, all his seats in that
House shall become vacant on the expiration of the specified period.
Resignation by a Member of his Seat (Article 101): Clause (3), of Article 101 provides
that a member of a House a Parliament may resign his seat in that House by addressing
to the Presiding officer of the House, his resignation. On the acceptance of his
resignation, his seat in the house shall fall vacant.
The Constitution (Thirty-third Amendment) Act, 1974 inserted a Clause 3(b) of Article 101,
to the effect. The Provision provides that Speaker or the Chairman, as the case may be,
shall not accept the resignation of the member, of his seat in the House, if he is satisfied,
from information received or otherwise, and after making such inquiry as he thinks that
such resignation is not voluntary or genuine.
Absentation of a Member from the House’s Meetings [Article 101 Clause (4)]: Clause
4 of Article 101 provides that if for a period of sixty days, a member of either House of
Parliament is, without permission of the House, absent from all meetings of the House,
the House may declare his seat vacant. However, in computing the said period of sixty
days, no account shall be taken of any period during which the House is prorogued or is
adjourned for more than four consecutive days.
Decision on questions as to Disqualification of Members (Article 103):
 Article 103 (1) provides: “If any question arises as to whether a member House of
Parliament has become subject to any of the disqualifications in Clause (1) of Article
102, the question shall be referred for the decision of the President and his decision
shall be final”.
 Clause (2) further says: “Before giving any decision on any such the President shall
obtain the opinion of the Election Commission shall act according to such opinion”.
The Commission, before giving it may hold such inquiry as it deems fit.
Penalty for Sitting and Voting as a Member in a House (Article 104): Article 104
imposes a penalty of five hundred rupees, to be recovered as a person in the following
cases:

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 If he sits or votes as a member of either House of Parliament before he makes or

subscribes an oath or affirmation in the form set out in the 3rd Schedule to the
Constitution, before the President or some person appointed by him, in that behalf.
 If he sits or votes as a member, when he knows that he is no qualified or that he is
disqualified for membership thereof, or that he is prohibited, from so doing by the
provisions of any law made by the Parliament.
 The penalty of five hundred rupees is imposed in respect of each day on which such
a person so sits or votes.
Salaries, Allowances and Pension of Members of Parliament (Article 106):
 Article 106 provides that the Members of either House of Parliament shall be entitled
to such salaries and allowances as may, from time to time be determined by
Parliament, by law. In the exercise of this power Parliament enacted the Salaries and
Allowances of Members of Parliament Act, 1954. This Act was amended in 1976 and
renamed as the Salaries Allowances and Pension of Members of Parliament Act, 1954.
 Section 8 A of The amended Act provides for payment of pension to the members, on
their satisfying certain conditions stated therein.
 In Common Cause, A Registered Society v. Union of India, it was contended that there
being no specific provision in regard to the payment of pension to the Members of
Parliament, the provisions of Section 8-A were not within the competence of
Parliament. Rejecting the contention, Constitution Bench of five Judges of the Apex
Court ruled that the Section 8-A was covered by the residuary Entry 97 of List 1.

5. OFFICER OF LOK SABHA

Since the Indian System of Government follows the Westminster Model, the
Parliamentary proceedings of the country are headed by a presiding officer, who is called
the Speaker.

SPEAKER
Election and Tenure: The Speaker is elected by the Lok Sabha from amongst its
members (as soon as may be, after its first sitting). Whenever the office of the Speaker
falls vacant, the Lok Sabha elects another member to fill the vacancy. The date of election
of the Speaker is fixed by the President.
Usually, the Speaker remains in office during the life of the Lok Sabha. However, he has
to vacate his office earlier in any of the following three cases:
1. If he ceases to be a member of the Lok Sabha
2. If he resigns by writing to the Deputy Speaker; and
3. If he is removed by a resolution passed by a majority of all then members of the Lok
Sabha. Such a resolution can be moved only after giving 14 days’ advance notice.
 When a resolution for the removal of the Speaker is under consideration of the House,
he cannot preside at the sitting of the House, though he may be present. However, he
can speak and take part in the proceedings of the House at such a time and vote in
the first instance, though not in the case of an equality of votes.
 It should be noted here that, whenever the Lok Sabha is dissolved, the Speaker does
not vacate his office and continues till the newly- elected Lok Sabha meets.
Role/Function of Speaker
Administrative Role:
➔ The Speaker is also the head of the Lok Sabha Secretariat.

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➔ It is through the Speaker that the decisions of the House are communicated to
individuals and authorities outside the Parliament.
Proceedings of the House:
➔ The Speaker presides over the meetings in the Lower House. In other words, the
Speaker conducts business in Lok Sabha by ensuring discipline and decorum among
members.
➔ The Speaker decides the agenda that must be discussed in a meeting of the
Members of the Parliament.
Admission of Motion:
➔ S/he is given the pivotal power to decide whether any Bill is a Money Bill. His/her
decision is considered final.
➔ Except for the no-confidence motion, all other motions which come before the
House come only after the Speaker permits them.
Power of Speaker: The Speaker of the Lok Sabha derives his powers and duties from
three sources, that is the Constitution of India, the Rules of Procedure and Conduct of
Business of Lok Sabha, and Parliamentary Conventions. Altogether, he has the following
powers and duties:
1. He maintains order and decorum in the House for conducting its business and
primary responsibility and he has final power in this regard.
2. He is the final interpreter of the provisions of (a) the Constitution of India, (b) the Rules
of Procedure and Conduct of Business of Lok Sabha, and (c) the parliamentary
precedents, within the House.
3. He adjourns the House or suspends the meeting in absence of a quorum. The quorum
to constitute a meeting of the House is one-tenth of the total strength of the House.
4. He does not vote in the first instance. But he can exercise a casting vote in the case of
a tie. In other words, only when the House is divided equally on any question, the
Speaker is entitled to vote. Such vote is called casting vote, and its purpose is to resolve
a deadlock.
5. He presides over a joint setting of the two Houses of Parliament. Such a sitting is
summoned by the President to settle a deadlock between the two Houses on a bill.
6. He can allow a ‘secret’ sitting of the House at the request of the Leader of the House.
When the House sits in secret, no stranger can be present in the chamber, lobby or
galleries except with the per- mission of the Speaker.
7. He decides whether a bill is a money bill or not and his decision on this question is
final. When a money bill is transmitted to the Rajya Sabha for recommendation and
presented to the President for assent, the Speaker endorses on the bill his certificate
that it is a money bill.
8. He decides the questions of disqualification of a member of the Lok Sabha, arising on
the ground of defection under the provisions of the Tenth Schedule. In 1992, the
Supreme Court ruled that the decision of the Speaker in this regard is subject to
judicial review.
9. He acts as the ex-officio chairman of the Indian Parliamentary Group which is a link
between the Parliament of India and the various parliaments of the world. He also
acts as the ex-officio chair-man of the conference of presiding officers of legislative
bodies in the country.
10. He appoints the chairman of all the parliamentary committees of the Lok Sabha and
supervises their functioning. He himself is the chairman of the Business Advisory
Committee, the Rules Committee and the General Purpose Committee.

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Independence and Impartiality: As the office of the Speaker is vested with great
prestige, position and authority, independence and impartiality becomes its sine qua
non. The following provisions ensure the independence and impartiality of the office of
the Speaker:
1. He is Provided with Security of Tenure.
2. He can be removed only by the resolution passed by Lok Sabha by a majority of all the
then members of the House. This motion of removal can be considered and discussed
only when it has the support of at least 50 members.
3. His salaries and allowances are fixed by Parliament. They are charged on the
Consolidated Fund of India and thus are not subject to the annual vote of Parliament.
4. His work and conduct cannot be discussed and criticised in the Lok Sabha except on
a substantive motion.
5. His powers of regulating procedure or conducting business or maintaining order in
the House are not subject to the jurisdiction of any Court.
6. He cannot vote in the first instance. He can only exercise a casting vote in the event of
a tie. This makes the position of Speaker impartial.
7. He is given a very high position in the order of precedence. He is placed at sixth rank,
along with the Chief Justice of India. This means, he has a higher rank than all cabinet
ministers, except the Prime Minister or Deputy Prime Minister.
Critical Examination of its Function: In 2017, the role of speaker was under scanner
for labelling the ordinary bills as money bills (eg. Aadhar Act). Though the case is sub-
judice and the matter is pending in the Supreme Court.
As recently as June 2020, the Speaker of Lok Sabha has been accused of not permitting
the session of Lok Sabha to be conducted virtually. Parliamentary standing committees
were also not allowed to hold their meetings online amid COVID-19.
Role of speaker in Anti-Defection Law: The absoluteness of the Speaker’s decisions is
incentive for potential abuse. The determination of whether a representative has
become subject to disqualification, post their defection, is made by the Speaker.
In 16th Lok Sabha, Speaker invoked the Rules 193 to suspend members of the Main
Opposition party for five days, however when the ruling party prevented any transaction
of business in the second half of the session, Speaker merely adjourned the house on a
daily basis.
Supreme Court cases: Keisham Meghachandra Singh vs Speaker (2020): SC looked into
the Speaker’s inaction on the matter of disqualification in this case. SC said the
disqualification petition should be cleared by the Speaker within 4 months.
Nabam Rebia and Bamang Felix vs Deputy Speaker case: SC has said that the Speaker
ought not to have disqualified the defectors when the motion for his own removal was
pending.
SUGGESTION FOR OFFICE OF SPEAKER
The Committee, headed by V.S. Page suggested:
 That if the Speaker had conducted himself or herself in an impartial and efficient
manner during the tenure of his or her office, he or she should be allowed to continue
in the next Parliament. Anyone seeking the office of the Speaker might be asked to
run for election on an independent ticket.
 Any Speaker should be barred from future political office, except for the post of
President, while being given a pension for life.
 Like in the UK, the Speaker should resign from the party once elected to the post of
speaker.

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 The Speaker is considered as the true guardian of the Indian Parliamentary

democracy, holding the complete authority of the Lok Sabha. Thus, impartiality of the
office is very important to make parliamentary democracy work in true sense.

DEPUTY SPEAKER
Election: To be fixed by Speaker of LS and notice for the election the Secretary-General
shall send to every member notice of this date. The members of Lok Sabha may elect a
Deputy Speaker among themselves.
Presiding over Sessions: He presides over Lok Sabha when Speaker is absent from
sitting of House including Joint Sitting. Deputy Speaker shall have same powers as
Speaker when he is presiding over any session of Lok Sabha. Deputy Speaker shall not
preside (in case Speaker is absent) while a resolution for his removal from office is under
consideration.
Removal (Article 94): He shall vacate his office if he ceases to be a member of the House
of the People; He may resign by writing under his hand addressed to the Speaker: He
may be removed from his office by a resolution of the House of the People passed by a
majority of all the then members of the House. (Effective Majority which is equal to more
than 50% of the effective strength of the House. It does not include vacancies.)
Vacancy: While office of Speaker is vacant, duties of office shall be performed by Deputy
Speaker.
Chairperson: Whenever Deputy Speaker is appointed as Member of any Committee, he
automatically becomes its Chairperson and performs necessary functions of the
committee.
Casting Vote: While holding office of Speaker, deputy speaker cannot vote in the first
instance and can only exercise his casting vote in case of tie.
Committee Membership: Deputy Speaker is a member of General Purposes Committee
and Library Committee. Deputy Speaker is the ex-officio Chairperson of the Committee.
Panel of Chairperson:
 Under the Rules of Lok Sabha, the Speaker nominates from amongst the members a
panel of not more than ten chairpersons. Any of them can preside over the House in
the absence of the Speaker or the Deputy Speaker. He has the same powers as the
Speaker when so presiding. He holds office until a new panel of chairpersons is
nominated.
 When a member of the panel of chairpersons is also not present, any other person as
determined In House acts as the Speaker.
 It must be emphasised here that a member of the panel of chairpersons cannot
preside over the House, when the office of the Speaker or the Deputy Speaker is
vacant.
 During such time the Speaker’s duties are to be performed by such member of the
House as the President may appoint for the purpose. The elections are held, as soon
as possible, to fill the vacant posts.
Speaker Pro Tem:
 As provided by the Constitution, the Speaker of the last Lok Sabha vacates his office
immediately before the first meeting of the newly- elected Lok Sabha. Therefore, the
President appoints a member of the Lok Sabha as the Speaker Pro Tem. Usually, the
senior most members are selected for this. The President himself administers oath to
the Speaker Pro Tem.

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 The Speaker Pro Tem has all the powers of the Speaker. He presides over the first
sitting of the newly-elected Lok Sabha. His main duty is to administer oath to the new
members. He also enables the House to elect the new Speaker.
 When the new Speaker is elected by the House, the office of the Speaker Pro Tem
ceases to exist.
Hence, this office is a temporary office, existing for a few days.
Secretariat:
 Article 98 provides that each House of Parliament shall have a separate secretarial
staff. However, there is no prohibition against the creation of posts common to both
the Houses.
 Parliament may, by law, regulate the recruitment and the conditions of service of
persons appointed to the secretarial staff of either House of Parliament.” Until such a
law is made, the President may, after consultation with the Speaker of Lok Sabha or
Chairman of Rajya Sabha makes rules for this purpose.
 Article 309 does not apply to the servants of Parliament. Their services are regulated
under the provisions to be made under Article 98.
 Article 98 provides for separate secretarial staff for each House of Parliament. The
provision was made for maintaining the dignity of the Presiding Officers and the
independence of the Houses of Legislature.
Leaders of Parliament:
 The term “Leader of the House” is defined in the Lok Sabha and Rajya Sabha Rules of
Procedure. The leader of the house in either House is an important functionary who
has direct influence on how business is conducted. He can also appoint a House
deputy leader.
 The Leader of the House is in charge of scheduling government meetings and
conducting business in the House.
 In Rajya Sabha, The Leader of the House in the Rajya Sabha is the majority party’s
leader and parliamentary chairperson and is usually a cabinet minister or another
nominated minister.
 In Lok Sabha, Leader of the House in Lok Sabha is the Prime Minister by default if
she/he is a member of the Lok Sabha. If the Prime Minister is not a Member of
Parliament’s Lower House, she or he might appoint another minister to serve as
Leader of the House.
Leader of Opposition:
 The Leader of the Opposition is the leader of the largest opposition party in the
parliament. It is a statutory position that is defined in the 1977 Salaries and Allowances
of Leaders of Opposition in Parliament Act. Two things are made clear by the act.
 The leader of the party in opposition to the government which has the greatest
number becomes the Leader of Opposition.
 The Speaker needs to recognise him/her as the Leader of Opposition.
Significance:
 If the seat of LoP is vacant, It will weaken India as the Opposition will not be able to
put up a unified front against the ruling party.
 The leader of the opposition helps in bringing cohesiveness and effectiveness to the
opposition’s functioning in policy and legislative work.
 It also helps in bringing neutrality to the appointments of institutions of accountability
and transparency such as CVC, CBI, Lokpal, CIC, etc.

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 The other role of the leader of the Opposition is to watch for the violation of the rights
of minorities. They can also demand debates on such crucial issues, when the
government is trying to slide away without parliamentary criticism.
 The Public Accounts Committee is there whose chairmen are Leader of the Opposition
to check the expenditure of the ruling party.
British Political System:
 The shadow cabinet is made up of senior members of the main opposition party in
Westminster who act as spokespeople for the opposition in specific policy areas.
Shadow ministers are appointed by the leader of the opposition and generally take
roles that mirror the current government. Their job is to scrutinise those they ‘shadow’
in government, and develop policies for their party.
 The official opposition and the shadow cabinet in particular, is expected to play the
role of a ‘government in waiting’. In the event of a change of governing party, members
of the shadow cabinet might expect to take up the role they have been shadowing.
This does not always happen however – a new prime minister may decide to allocate
roles to his or her team differently once they are in government.
Whip
The colonial British government introduced the concept of whip in India. The office of
‘whip’, is mentioned neither in the Constitution of India nor in the Rules of the House nor
in a Parliamentary Statute. It is based on the conventions of the parliamentary
government.
A whip is an official of a political party who acts as the party’s ‘enforcer’ inside the
legislative assembly or house of parliament. In India, every major political party appoints
a whip who is responsible for the party’s discipline and behaviour on the floor of the
House. A whip is an important office-bearer of the party in the Parliament. Parties
appoint a senior member from among their House contingents to issue whips — this
member is called a Chief Whip, and he/she is assisted by additional Whips. India inherited
the concept of the whip from the British parliamentary system.
Types of Whips
There are three types of whips or instructions issued by the party:
 One-line whip: One-line whip is issued to inform members of a party about a vote. It
allows a member to abstain in case they decide not to follow the party line.
 Two-line whip: Two-line whip is issued to direct the members to be present in the
House at the time of voting.
 Three-line whip: Three-line whip is issued to members directing them to vote as per
the party line
Penalty if whip is disobeyed
The penalty for defying a whip varies from country to country:
 In the United Kingdom, an MP can lose membership of the party for defying the whip,
but can keep her/ his House seat as an Independent.
 In the US, as per a note published by PRS Legislative Research, “the party whip’s role
is to gauge how many legislators are in support of a Bill and how many are opposed
to it — and to the extent possible, persuade them to vote according to the party line
on the issue”.
 In India, A legislator may face disqualification proceedings if she/he disobeys the whip
of the party unless the number of lawmakers defying the whip is 2/3rds of the party’s
strength in the house. Disqualification is decided by the Speaker of the house.
Limitations of whip:

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 There are some cases such as Presidential elections where whips cannot direct a
Member of Parliament (MP) or Member of Legislative Assembly (MLA) to vote in a
particular fashion.
 Two-line whip is issued to direct the members to be present in the House at the time
of voting.
 Three-line whip is issued to members directing them to vote as per the party line
 The Leaders and Chief Whips of Recognised Parties and
Groups in Parliament (Facilities) Act, 1998: An Act to provide for facilities to Leaders
and Chief Whips of recognised parties and groups in Parliament. Subject to any rules
made in this behalf by the Central Government, each leader, deputy leader and each
Chief Whip of a recognised group and a recognised party shall be entitled to telephone
and secretarial facilities.

6. SESSION OF PARLIAMENT: (ARTICLE 85, 86

AND 87)
Summoning:
 Article 85(1) empowers the President to summon the Sessions of each House of
Parliament. The word “Session” refers to the period commencing with the first
meeting of the House of the Legislature duly summoned by the President.
 The President may summon the Sessions of each House of Parliament time to time.
However, this right of the President is subjected to the condition that six months shall
not intervene between the last sitting in one session and the date appointed for the
first sitting in the next Session of the house. Thus, there shall not be an interval of
more than six months between Sessions of a House. However, the stipulation of six
months intervening period between the two Sessions is inapplicable to a dissolved
House.”
Prorogation of the House [Article 85 (2)(a)]: Prorogation of the House means the
termination of the Session. A prorogation ends a Session. After prorogation, if the House
is to meet, it is to be summoned in Session by the President. The period between the
prorogation of the House and its reassembly in a new Session is termed as Recess. The
power to prorogue the House is vested with the President under Article 85 (2)(a).
Adjournment and Adjournment Motion: Adjournment Motion is a device to bring
before the House something which is not mentioned in the agenda or the order papers,
of which the members of the House have no prior notice, but it is so important the it
must be brought to the notice of the House. It is a motion for the adjournment of the
scheduled business of the House for the purpose of discussing a definite matter of
urgent public importance.
An adjournment motion can be moved only with the initial consent the presiding officer
of the House, i.e., the Speaker or the Chairman, after a notice to him, early in the
morning, before the commencement of the sitting of the House.
If the Speaker or the Chairman, as the case may be, does not come the motion can
be moved only with the leave of the House, given after less than 50 members rise in
their places in support of the motion.
There is difference between “adjournment motion” and “adjournment of the House.”
Adjournment motion is moved to discuss a definite matter urgent public importance.
While the House may be adjourned by Presiding Officer, in the case of a grave disorder
arising in the

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House. It may be adjourned for a time to be named by the Presiding Officer or Sine die,
i.e. indefinitely. An adjourned House can be recalled only by the Presiding Officer of the
House. The President has no power to rescind the adjournment.
Difference between Adjournment and Prorogation:

Adjournment Prorogation

Terminates a sitting, not a Not only terminates a sitting, but also a session of
session of the house. house.

Done by Presiding Officer Done by the President of India.

Does not affect bills or any All pending notices will lapse only in case of
business pending before the Prorogation. It will also not affect bills, or any
house business pending in house.

Dissolution [Article 85(2)(b)]:

 Dissolution ends the very life of the existing House, and a new House is constituted
after general elections are held.
 Rajya Sabha, being a permanent House, is not subject to dissolution. Only the Lok
Sabha is subject to dissolution.
The dissolution of the Lok Sabha may take place in either of two ways:
 Automatic dissolution: On the expiry of its tenure – five years or the terms as
extended during a national emergency.
 Order of President: If President is authorized by CoM, he can dissolve Lok Sabha,
even before the end of the term. He may also dissolve Lok Sabha if CoM loses
confidence and no party is able to form the government. Once the Lok Sabha is
dissolved before the completion of its normal tenure, the dissolution is irrevocable.
Effect of Dissolution: When the Lok Sabha is dissolved or when the dissolution of the
House takes place, it affects the pending Bill as discussed below:
 A Bill which originated in the Lok Sabha and is yet pending therein. During the
pendency of the Bill, the Lok Sabha is dissolved, the Bill shall lapse.
 A Bill which originated in the Lok Sabha, passed by it, transmitted to the Rajya Sabha
and is pending therein. During the pendency of the Bill in the Rajya Sabha, the Lok
Sabha is dissolved, the Bill shall lapse.
 A Bill which originated in the Rajya Sabha passed by transmitted to the Lok Sabha and
is pending therein. During the pendency of the Bill in Lok Sabha, the House is
dissolved, the Bill shall lapse.
 A Bill which originated in the Rajya Sabha and yet pending therein. During the
pendency of the Bill in the Rajya Sabha, the Lok Sabha is dissolved, the Bill shall not
lapse.
 A Bill passed by both the Houses of Parliament, sent to the President for his assent.
During the pendency of the Bill with President, the Lok Sabha is dissolved, the Bill shall
not lapse.
 On a Bill (non-Money Bill) deadlock has resulted in the two House of Parliament.
Before the President notifies his intention under Article 108, to summon a joint sitting
of the two Houses to resolve the deadlock, the Lok Sabha is dissolved, the Bill shall
lapse.
 In case of deadlock in the two Houses of Parliament, the President has notified his
intention under Article 108 to hold a joint sitting of the Houses. After such Notification,
the Lok Sabha is dissolve the Bill shall not lapse. The dissolution of the Lok Sabha shall

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have no effect on the holding of the joint-sitting of the Houses. Bill passed at such a
joint sitting shall be deemed to have be passed by both the Houses.
Rules of Procedure (Article 118): Article 118 (1) empowers each House of Parliament to
make rules for regulating its procedure and the conduct of its business. However, this
rule making power is to be exercised subject to the provisions of the constitution. As
regards the Procedure with respect to the joint sitting of the two Houses and
communications between the Houses, the President may make Rules in consultation
with the Presiding Officers of both the Houses.
President’s Address:
 Article 86(1) of the Constitution provides that the President may address either House
of Parliament or both Houses assembled together, and for that purpose require the
attendance of members. However, since the commencement of the Constitution,
there has not been any occasion when the President has addressed either House or
both Houses assembled together, under the provision of this article.
 Article 87 provides for the special address by the President. Clause (1) of that article
provides that at the commencement of the first session after each general election to
the House of the People and at the commencement of the first session of each year,
the President shall address both Houses of Parliament assembled together and
inform Parliament of the causes of its summons.
 Such an Address is called ‘special address’; and it is also an annual feature. No other
business is transacted till the President has addressed both Houses of Parliament
assembled together. The time and date of the President’s Address are notified in the
Parliamentary Bulletin,
 This Address has to be to both Houses of Parliament assembled together. If at the
time of commencement of the first session of the year, Lok Sabha is not in existence
and has been dissolved, and Rajya Sabha has to meet, Rajya Sabha can have its session
without the President’s Address. This happened in 1977, when during the dissolution
of Lok Sabha; Rajya Sabha had its session on 28 February 1977 without the President’s
Address. In the case of the first session after each general election to Lok Sabha, the
President addresses both Houses of Parliament assembled together after the
members have made and subscribed the oath or affirmation and the Speaker has
been elected.
 Under Rule 17 of the Rules of Procedure and Conduct of Business in Lok Sabha,
discussion on matters referred to in the President’s Address takes place on a Motion
of Thanks moved by a member and seconded by another member. The form of the
Motion is: “ That the Members of Lok Sabha assembled in this session are deeply
grateful to the President for the Address which she/he has been pleased to deliver to
both the Houses of Parliament assembled together on [ ] date.”
 The notice of the Motion, given by a member and seconded by another, is received
through the Minister of Parliamentary Affairs (and through the Leader of the House in
case the Prime Minister is not the Leader of the House), and after it is admitted by the
Speaker, the Motion is published in the Bulletin and the List of Business.
 Likewise, in Rajya Sabha, Rules 14 to 21 of the Rules of Procedure and Conduct of
Business provide for the procedure to be followed for Motion of Thanks and
discussion on President’s Address, which is similar in nature to that of Lok Sabha.
Conduct of Business: Oath or affirmation by members [Article 99]: The business in the
Houses of Parliament is initiated with the oath taking ceremony. Article 99 requires that
every member of either House shall before taking his seat, make and subscribe before
the President, or person appointed in that behalf by him, an oath or affirmation,

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according the form set out for the purpose in the Third Schedule to the Constitution.
Non-compliance of this requirement entails penalty under Article 104.
Voting in House [Article 100]:
 Article 100(1) says that all questions at any sitting of either House or at a joint sitting
of the Houses of Parliament, shall be determined by a simple majority of the members
present and voting. The Chairman or the Speaker or a person acting as such, shall not
vote in the first instance. He shall exercise a casting vote in the case of an equality of
votes.
 Existence of any vacancy in the membership of the House does not affect its
functioning. The House shall have power to act and conduct its proceeding
notwithstanding any vacancy therein.
 Article 100 does not require that a member present in the House must vote on a notice
of motion. It is open for him to vote or abstain from voting There is no illegality on the
part of the member of a House in abstaining from voting at the time when notice of
motion was being considered by the House
Voice voting is the preferred method of decision making by Indian Parliament. MPs in
favour of a decision call out “Ayes” and those opposed say “Noes”. The Speaker then takes
a call on which voices were louder and conveys the decision of the House. The rules of
procedure of Lok Sabha do not mandate recording of votes of MPs for every decision
taken. Voice voting does not reveal the individual positions taken by MPs. If the decision
of speaker is not challenged, it will be considered accordingly. And if challenged:
 He shall order that the Lobby be cleared.
 After the lapse of three minutes and thirty seconds, he shall put the question a second
time and declare whether in his opinion the ‘Ayes’ or the ‘Noes’ have it.
 If the opinion so declared is again challenged, he shall direct that the votes be
recorded either by operating the automatic vote recorder or by using ‘Aye’ and ‘No’
Slips in the House or by the Members going into the Lobbies.
Division Vote: on the other hand, records how each MP voted on a particular motion.
For example, during the passage of the Land Acquisition Act in 2013, Left party MPs
moved amendments to the government’s bill and asked for a division on their
amendments. Parliamentary record indicates that they lost the vote and the Bill was
passed without incorporating their amendments.
 Divisions also provide insights into the participation of MPs in the legislative process.
When a Bill is passed by a voice vote there is no record of how many MPs were present
in the House during the passage of a law. For example, there are currently 542 MPs in
the 17th Lok Sabha. However, division data on the Triple Talaq Bill indicates that less
than half of them were in the House to take part in the voting on the Bill.
 Division is only mandated for a set of motions which require a special majority of the
house to be passed. For example, constitutional amendment bills have to be passed
by a majority of the total membership of that House and by a majority of not less than
two-thirds of the members of the House “present and voting”. To ensure that this
condition is fulfilled, a division is called for.
On other occasions, individual MPs have to ask for a division. During the term of the last
Lok Sabha (2014-19), voting by division was held only on 108 occasions. Only half of these
were asked for by MPs, the other half related to constitutional amendment bills.
Quorum for meetings [Article 100 (3)]:
 Clause (3) of Article 100 provides that until Parliament, by law, provides, the quorum
to constitute a meeting of either House of parliament shall be one-tenth of the total

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number of members of the House. Parliament may, by making a law, provide a

different rule in this respect.
 The purpose of quorum is to ensure that there is proper transaction of business and
the decision taken epitomises the representative character. The Madhya Pradesh High
Court in Than Singh v. State of Madhya The concept of quorum is basically a safeguard
against the apprehension that a minuscule persons or members may boast of having
taken a decision on behalf of the body even though the large body of members are
unaware or not parties to the decision.
Absence of Quorum [Article 100 (4)]: Clause (4) of Article 100 requires that if at any time
there is no quorum, the Chairman or the Speaker or person acting as such, shall adjourn
the house or suspend the meeting until there is a quorum. It has been declared a duty
of the Chairman or the Speaker, as the case may be, not to conduct proceeding of the
House, until there is a quorum.
Rights of Minister and Attorney General: Every Minister and the Attorney-General of
India shall have the right to speak and take part in the proceedings of either House, any
joint sitting of the Houses and any Committee of Parliament of which he may be named
a member. But he shall not be entitled to vote. For Instance, Ministers who are elected
to the Lok Sabha participate in the discussion in Rajya Sabha and certain Parliamentary
committees. However, they are not entitled to vote where they are not authorized to.
Devices of Parliamentary Proceedings:
 The first hour of every sitting of Parliament is generally reserved for the asking and
answering of questions.
 Parliamentary question is a technique of parliamentary surveillance over functioning
of the government. Members of Parliament are free to ask questions to elicit
information on matters of public importance and concern from ministers of the
government.
 The members of the government are bound to answer every question asked in the
Question Hour.
 Questions enable Ministries to gauge the popular reaction to their policy and
administration.
 Unless the Speaker otherwise directs, not less than 15 days’ notice of a question shall
be given. Notice of a question shall be given in writing to the Secretary-General and
shall specify.
 The text of the question
 The official designation of the Minister to whom the question is addressed.
 The date on which answer to the question is desired, and the order of preference, if
any, for its being placed on the list of questions, where a member tables more than
one notice of questions for the same day.
 A member who desires an oral answer to one’s question shall distinguish it by an
asterisk. If the member does not distinguish it by an asterisk, the question shall be
placed on the list of questions for written answer.
Types of Questions: Questions are of four types: Starred, Unstarred, Short Notice
Questions and Questions addressed to private Members.
 Officer of Lok Sabha is one to which a member desires an oral answer in the House
and which is distinguished by an asterisk mark. Supplementary questions can be
asked thereon.
 Officer of Lok Sabha – which desires written answer to whom it is addressed.

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 A Short Notice Question relates to a matter of urgent public importance and can be
asked with shorter notice than the period of notice prescribed for an ordinary
question. Like a starred question, it is answered orally followed by supplementary
questions.
 Question addressed to Private Member is asked when the subject matter pertains to
any Bill, Resolution or any matter relating to the Business of the House for which that
Member is responsible.
Importance of Question Hour:
 Holds ministers accountable for the functioning of their ministries.
 Raises important issues on constituency, national and International matters.
 Elicit Wider Debates on important issues of national importance.
 Exposes financial irregularities of various government institutions.
 Enable ministries to gauge the popular reaction to their policy and administration.
 Enables members to ventilate the grievances of the public in matters concerning the
administration.
 Bring to timely notice many policy loopholes which otherwise would have gone
unnoticed.
 It leads to appointment of Commissions or sending controversial Bills for further
scrutiny to Parliamentary Committees.
Zero Hour:
 The time immediately following the Question Hour and laying of papers and before
any listed business is taken up in the House has come to be popularly known as the
`Zero Hour’. As it starts around 12 noon, this period is euphemistically termed as
`Zero Hour’.
 For raising matters during the ‘Zero Hour’ in Lok Sabha, Members give notice between
8.30 a.m. and 9.00 a.m. every day to the Speaker stating clearly the subject which they
consider to be important and wish to raise in the House.
 It is, of course, for the Speaker to allow or not to allow for raising such matters in the
House.
 The term `Zero Hour’ is not formally recognised in our parliamentary procedure.
 At present, twenty matters per day as per their priority in the ballot are allowed to be
raised during “Zero Hour”.
 However, since there is no provision in the rules regarding ‘Zero Hour’, hence there is
no maximum limit on the number of matters that can be raised on any given day.
Motion: The term `motion’ in parliamentary parlance means any formal proposal made
to the House by a Member for the purpose of eliciting a decision of the House. It is
phrased in such a way that, if adopted, it will purport to express the judgement or will of
the House. Any matter of importance can be the subject matter of a motion. The mover
of a motion frames it in a form in which he/she wishes it ultimately to be passed by the
House and on which a vote of the House can conveniently be taken.
Different types of Motions:
 Motions may be classified into three broad categories, namely, substantive motions,
substitute motions and subsidiary motions.
 A substantive motion is a self-contained, independent proposal made in reference to
a subject which the mover wishes to bring forward. All Resolutions, Motions for
election of the Speaker and Deputy Speaker, and Motion of Thanks on the Address by
the President, etc. are examples of substantive motions.

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 A substitute motion, as its name suggests, is moved in substitution of the original

motion for taking into consideration a policy or situation or statement or any other
matter. Amendments to substitute motions are not permissible.
 Subsidiary motions depend upon or relate to other motions or follow up on some
proceedings in the House. By itself, a subsidiary motion has no meaning and is not
capable of stating the decision of the House without reference to the original motion
or the proceedings of the House.
Calling Attention Motion:
 Under this procedural device, a Member may, with the prior permission of the
Speaker, call the attention of a Minister to any matter of urgent public importance and
the Minister may make a brief statement thereon.
 There shall be no debate on such a statement at the time it is made.
 After the statement, brief clarifications can be sought from the Minister by the
Member who has initiated the Calling Attention and other Members whose names
appear in the List of Business are called by the Speaker.
 Only those matters which are primarily the concern of the Union Government can be
raised through a Calling Attention notice.
 The Calling Attention procedure is an Indian innovation which combines asking a
question with supplementary and making brief comments; the Government also gets
adequate opportunity to state its case.
 The Calling Attention matter is not subject to the vote of the House.
Motion of No-confidence: It is derived from principle of collective responsibility as
mentioned in article 75 of the Constitution.
In India, as per rule 198 of the constitution, ‘the Lok Sabha specifies the procedure for a
motion of no-confidence. It states that any member may give a written notice before 10
am in the morning; the Speaker will read the motion of no-confidence in the House and
can ask all those favouring this motion to rise. If there are 50 MPs in favour, the Speaker
could allot a date for discussing the motion – but this has to be within 10 days. However,
this cannot be done in conditions of din or confusion in the House’. Mostly, this motion
is the last step and actually, it is one of the most remarkable procedures. It authenticates
the ultimate power of legislative over the executive in the Indian parliament. It usually
proceeds like as below:
 In Lok Sabha, a bill or a motion proposed by Opposition or a Coalition of Opposition
is passed with a simple majority.
 Then to know the strength of Government and MPs, votes review will be done and
also understand the reason of bill passed by the opposition.
 Regardless of the Government MPs all present and voting against the Bill, if the bill
gets passed, the signals of the Government not being in majority becomes a reality.
 Then, if the Opposition or coalition parties wishes to form an administration, they call
for a No-Confidence Vote.
 This No-Confidence Vote occurs in the Lok Sabha and the MPs decides ‘Yes’ or ‘No’. If
the ‘Ayes’ are more, then the Government can collapse instantly.
Closure Motion: Closure Motion It is a motion moved by a member to cut short the
debate on a matter before the House. If the motion is approved by the House, debate is
stopped forthwith and the matter is put to vote. There are four kinds of closure motions.
 Simple Closure: It is one when a member moves that the ‘matter having been
sufficiently discussed be now put to vote’.

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 Closure by Compartments: In this case, the clauses of a bill or a lengthy resolution are
grouped into parts before the commencement of the debate. The debate covers the
part as a whole and the entire part is put to vote.
 Kangaroo Closure: Under this type, only important clauses are taken up for debate
and voting and the intervening clauses are skipped over and taken as passed.
 Guillotine Closure: It is one when the undiscussed clauses of a bill or a resolution are
also put to vote along with the discussed ones due to want of time (as the time allotted
for the discussion is over).
Censure Motion:
 MPs can introduce motions of censure to criticise a specific government programme,
a specific government minister (including the prime minister), or the government as a
whole.
 Because censure motions are based on tradition, there are no explicit rules dictating
how they are framed or how they operate.
 A motion of censure can be introduced by any MP. They are frequently presented as
an Early Day Motion, which is a brief motion that is not scheduled for discussion on a
given day and allows an MP to express his or her opinion on a specific topic.
 Other Members of Parliament can sign any Early Day Resolution, including a censure
motion, to show their support.
Resolution: The members can move resolutions to draw the attention of the House or
the government to matters of general public interest. The discussion on a resolution is
strictly relevant to and within the scope of the resolution.
A member who has moved a resolution or amendment to a resolution cannot withdraw
the same except by leave of the House. Resolutions are classified into three categories:
 Private Member’s Resolution: It is one that is moved by a private member (other than
a minister).
 It is discussed only on alternate Fridays and in the afternoon sitting.
 Government Resolution: It is one that is moved by a minister. It can be taken up any
day from Monday to Thursday.
 Statutory Resolution: It can be moved either by a private member or a minister. It is
so called because it is always tabled in pursuance of a provision in the Constitution or
an Act of Parliament.
Resolutions are different from motions in the following respects: “All resolutions
come in the category of substantive motions, that is to say, every resolution is a particular
type of motion. All motions need not necessarily be substantive. Further, all motions are
not necessarily put to vote of the House, whereas all the resolutions are required to be
voted upon.”

7. LEGISLATIVE PROCEDURE
Legislative procedure means the procedure which is followed for making It is initiated by
the introduction of the proposals for legislation in the “Bill” and involves the following
stages.
 Introduction of the Bill in one of the Houses.
 When it is passed by that House, the Bill is transmitted to the other House.
 When the Bill is passed or deemed to have been passed by both the Houses, it is sent
to the President for his assent thereto.

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 On his assent, the Bill becomes law and the legislative procedure is completed. The
legislative procedure is discussed in respect to the following Bills
Ordinary Bill (Article 107): An Ordinary Bill may be defined as that Bill which is neither
a Money Bill, nor a Financial Bill nor a Bill involving expenditure from Consolidated Fund
of India.
An Ordinary Bill may be introduced in either House of Parliament when passed by the
House in which it is introduced; the Bill is to be transmitted to the other House. When
the other House has also agreed to the Bill, it is said to be passed by both Houses. It is
then presented to President for his assent.
The passing of a Bill in a House is done through three stages commonly known as
readings:
 First reading, second reading and third reading first stage.
 In the First stage, the Bill is introduced in the House. No discussions take place this
stage.
 Then starts the consideration stage where the Bill is discussed clause by clause. At this
stage, amendments are moved and accepted or rejected. It is known as the second
reading of the Bill.
 At the third reading stage, a brief general discussion takes place and the bill is passed.
All the three reading stages are repeated in each House of Parliament. If there is any
disagreement between the two Houses over the Bill cannot be deemed to have been
passed by both Houses.
Money Bill (Article 110): The expression Money Bill is defined by Clause (1) of Article 110
is that Bill which contains only provisions dealing with all or any of following matters,
namely
(a) the imposition, abolition, remission, alteration, or regulation of tax
(b) the regulation of the borrowing of money or the giving of any guarantee by the
Government of India, or the amendment of the law with respect to any financial
obligations undertaken or to be undertaken by the Government of India
(c) the custody of the Consolidated Fund or the Contingency Fund India, the payment of
moneys into or the withdrawal of moneys from any such Fund
(d) the appropriation of moneys out of the Consolidated Fund of India
(e) the declaring of any expenditure to be expenditure charged on Consolidated Fund of
India or the increasing of the amount of any such expenditure.
(f) the receipt of money on account of the Consolidated Fund of India or the public
account of India or the custody or issue of such money or the audit of the accounts
of the Union or of a State
(g) any matter incidental to any of the matters specified in sub-clauses (a) to (f).
Thus, a Money Bill is that Bill which contains all or any of the matters contained in Sub-
clauses (a) to (g) of Clause (1) of Article 110. However, Bill shall not be deemed to be a
Money Bill by reasons only that it provides payment of fees for licences or fees for
services rendered, or by reasons provides for the imposition, abolition, remission,
alteration or regulation of any tax by any local authority or body for local purposes.
If any question arises as to whether a Bill is a Money Bill or not, the decision of the
Speaker of the Lok Sabha shall be final.
Aadhaar Controversy: An important question that required consideration in the Aadhar
judgment was whether the Aadhaar (Targeted Delivery of Financial and Other Subsidies,
Benefits and Services) Act, 2016 was rightly passed as a “Money Bill”. By a majority, it was

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held that it was indeed a Money Bill while the dissenting judgement of Chandrachud J.
held to the contrary.
Aadhaar was a money Bill:
 The Aadhaar Bill was a Money Bill as it had a substantial nexus with the appropriation
of funds from the Consolidated Fund of India and was directly connected with Article
110 of the Constitution. (Justice Sikri).
 Section 7 of Aadhar act states that the expenditure of subsidies and other schemes
which are for the welfare of the people would be met from the Consolidated Fund of
India, thus, the Aadhar Bill was held eligible to be categorized as a Money, Bill.
 The majority introduces a test of “substantial nexus with the appropriation of funds
and direct connection”. However, this will enable any future Parliament to introduce
any Bill with just one provision that has a substantial nexus with the “appropriation of
funds and direct connection” and it would pass muster as a “Money Bill”.
Aadhar was not a Money Bill:
 Expenditure on the Aadhaar scheme is “incurred” from the Consolidated Fund of India
not Charged on Consolidated Fund of India and will not be covered by Articles 110(c)
or 110(e). Consequently, Article 110(g) will also have no application.
 The scholarly book on ‘Parliamentary Practice’ by Erskine May specifically points out
that if a Money Bill contains other matters, which are not subordinate or incidental to
the enumerated matters, it would not be a Money Bill. Accordingly, the Speaker of the
House of Commons has rejected 1/3rd of such Bills. The Aadhaar Bill contained several
provisions which were neither subordinate nor incidental to any of the enumerated
matters in Article 110(1).
 When a money bill is sent to Rajya Sabha, it cannot be amended or rejected by the
Rajya Sabha. The Rajya Sabha should return the bill with or without recommendations,
which may be accepted or rejected by the Lok Sabha.
Speaker decision & Judicial Review: In the cases of Mohd. Saeed Siddiqui v. State of
Uttar Pradesh, and Yogendra Kumar Jaiswal v. State of Bihar, the Supreme Court had
held that the certificate issued by the Speaker was final and not subject to judicial review.
However in Raja Rampal case, the Supreme Court held that the while the Court may not
review procedural irregularities in parliamentary proceedings as per Article 122, the
Article doesn’t exempt review on other grounds. Thus, judicial review is possible on other
grounds, in particular, substantive illegality and unconstitutionality. This includes
reviewing even the decision of the Speaker.
Special Procedure in respect of Money Bill (Article 109):
 Article 109 provides for a special procedure for the passing of Money Bill.
 A Money Bill can originate only in the Lok Sabha. Thus, it cannot be introduced in the
Rajya Sabha.
 A Money Bill cannot be introduced in the Lok Sabha without the prior
recommendations of the President.
 When the Money Bill is passed by the Lok Sabha, the Speaker shall make an
endorsement on that Bill that the Bill is a Money Bill, before it is transmitted to the
Rajya Sabha.
 If the Rajya Sabha passes the Money Bill without making any amendments, the Bill is
said to be passed by both.
 If the Rajya Sabha recommends some amendments to the Money Bill, and it is then
returned to the Lok Sabha. If all the amendments recommended by Rajya Sabha are

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accepted by the Lok Sabha, the Money Bill is deemed to have been passed by both the
houses.
 If all or any of the amendments recommended by Rajya Sabha to the Money Bill are
not accepted by the Lok Sabha, even then the Money Bill shall be deemed to have
been passed by both Houses.
 If Rajya Sabha does not return the Money Bill within a period of 14 days from the date
of its receipt in the House, without it being passed by it, the Money Bill shall be deemed
to have been passed by both Houses after the expiration of such period of 14 days.
 It is thus clear that Rajya Sabha has no power with respect to the passing Money Bill
except delaying its passing for a period of 14 days.
 It follows that a deadlock in the two Houses does not result on a Money bill.
Financial Bill:
 Financial Bills are also called as, “Act for Appropriation of Funds for Appropriations”. It
is different than money bills which have been mentioned under article 110 of the
constitution of India.
 Financial bills are responsible for the fiscal matters such as government spending or
revenue. It specifies the amount of money to be spent by the government and the way
it is to be spent.
 Financial bills are a component of the constitution and the union budget. It proposes
all the necessary legal changes required for the proposed tax adjustments. When a
question arises that a bill is a money bill or not, the speaker of the house decides on
the matter and his decision shall be final in the regard.
 According to Rule 219 of the Lok Sabha’s Rules of Procedure, a “Finance Bill” is defined
as the Bill that is typically introduced each year to give effect to the Government of
India’s financial proposals for the upcoming fiscal year, as well as a Bill to give effect
to supplementary financial proposals for any period.

TYPES OF FINANCIAL BILLS

Financial bills (i): Article 117 (1)
 It includes not only the subjects stated in Article 110 of the Constitution but also other
legislative provisions.
 Financial bill (i) is comparable to the money bill in two ways. Firstly, both of these bills
can only originate in the Lok Sabha and not Rajya Sabha. Secondly, both the bills can
be introduced only on the President’s advice.
 A financial bill (i) follows the same parliamentary procedures as any ordinary bill.
 A finance bill (I) follows the same parliamentary process as an ordinary bill in all other
respects.
 It can therefore be rejected or changed by the Rajya Sabha, with the exception that no
amendment other than one that lowers or abolishes taxes can be introduced in either
House without the president’s approval.
 The president may call a joint session of the two Houses if they cannot agree on such
a measure.
 This will end the impasse.
 When the measure is presented to the President, he has three options: to approve it,
decline to do so, or send it back to the Houses for further consideration.

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Financial bills (ii) OR Bill involving expenditure from Consolidated Fund of India:
Article 117 (3):
 A financial bill (II) does not contain any of the items listed in Article 110, but it does
contain measures impacting Consolidated Fund of India spending.
 It is regarded as an ordinary bill and is handled in every way by the same
parliamentary process as an ordinary bill.
 This bill’s sole unique feature is that neither House of Parliament may pass it without
the President first requesting that it be brought up for consideration
 Financial bill (ii) can be filed in either house of the Parliament and the President’s
approval is not required.
 However, the President’s suggestion can be taken during the consideration stage of
the bill.
 It can be rejected or amended by either House of Parliament. The President may call
a joint session of the two Houses if they cannot agree on such a measure. This will end
the impasse.
 When the measure is presented to the President, he has three options: to approve it,
decline to do so, or send it back to the Houses for further consideration.
Need of a Financial Bill:
 The Union Budget suggests a number of tax changes for the upcoming fiscal year,
even if the Finance Minister’s Budget address does not mention all of the suggested
changes.
 These suggested changes will have an impact on a variety of current tax-related laws
in the nation.
 The Finance Bill intends to alter all pertinent laws without necessitating the passage
of individual amendment bills for each one.
 This law addresses a number of concerns, including tax relief, inflation, and interest
rates.
 For instance, a Union Budget’s anticipated tax modifications may require amending
various sections of the Income Tax Act, Stamp Act, Money Laundering Act, and other
legislation. The Finance Bill amends and repeals existing legislation as appropriate.
Difference between Financial Bill and money bill:
 While all Money Bills are Financial Bills, all Financial Bills are not Money Bills. For
example, the Finance Bill which only contains provisions related to tax proposals
would be a Money Bill.
 However, a Bill that contains some provisions related to taxation or expenditure, but
also covers other matters would be considered as a Financial Bill. The Compensatory
Afforestation Fund Bill, 2015, which establishes funds under the Public Account of
India and states, was introduced as a Financial Bill.
 Secondly, the procedure for the passage of the two bills varies significantly. The Rajya
Sabha has no power to reject or amend a Money Bill. However, a Financial Bill must
be passed by both Houses of Parliament.
Deadlock in the Houses of Parliament on a Bill (Article 108)
It may be noticed that a deadlock in the two Houses of the Parliament can result only on
a non-Money Bill, i.e., an Ordinary Bill, Financial Bill or a Bill Involving Expenditure from
the Consolidated Fund.
There would be a deadlock in the two Houses on a Bill in the following cases:

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1. When a Bill passed by the House in which it originated and transmitted to the other
House, is rejected by the other House.
2. When a Bill, having been passed by the House in which it is originated, is transmitted
to the other House, the other House recommends some amendments to that Bill and
all or any of those amendments having been rejected by the first House.
3. When a Bill having been passed by the House in which originated, is transmitted to
the other House, the other House does not return the Bill for six months from the date
of its receipt in the House without it being passed by it.
Procedure to resolve deadlock (Article 108):
 Article 108 provides that when deadlock has resulted on a bill, the President may
notify to the houses of Parliament, his intention to summon a joint sitting of the
houses for resolving the deadlock on that bill.
 The President shall notify his intention by a message to the Houses if they are in
session and sitting. If the Houses are not sitting, the President shall notify intention by
a public notification. After the President has notified his intention to hold a joint sitting
of Hours, neither House shall proceed further with that Bill. The President then,
summon the Houses to meet in a joint sitting and the Houses meet accordingly. The
Speaker of the Lok Sabha shall preside over that at the joint sitting of the two Houses.
 If at the joint sitting of the two houses, the Bill is passed by the majority of the total
number of members of both Houses, present and voting, it shall be deemed to have
been passed by both Houses, The Bill shall be deemed to been passed with such
amendments, if any, as are agreed to at the sitting. No new amendments except those
on which the disagreement resulted in the two Houses, shall be proposed at the joint
sitting.
 A joint sitting of the two Houses shall be held even if the Lok Sabha has been dissolved,
provided, the President had notified his intention to hold point sitting before the
dissolution of the House takes place. Thus, the dissolution of the Lok Sabha shall have
no effect on the joint sitting of the and the Bill passed at the joint sitting shall be
deemed to have been by both Houses.
 It is the only case in which the members of a dissolved House take part
Assent to Bills (Article 111):
 When a Bill has been passed by both Houses of the Parliament, it shall be presented
to the President for his assent. The President may declare either that he assents to
the Bill, or that he withholds his assent therefrom. When President assents to the Bill,
it becomes an Act, if he withholds his assent, the Bill lapses.
 With respect to a non-Money Bill, the President has one more option, he may return
a non-Money Bill to the Houses with a message requesting to reconsider the Bill and
may recommend some amendments to that bill. The Houses when so required, shall
reconsider the Bill along with the amendments, recommended by the President. If the
Bill is again passed by Houses with or without amendments, it is to be presented to
the President for his assent again. Article 111 provides that the President, then shall
not withhold his assent to the Bill.
Private Member Bill: A member of parliament (MP) who is not a minister is a private
member. The Bills introduced by private members are referred to as Private Member’s
Bills. The Bills introduced by ministers are called government Bills. The government bills
have the backing of the government and reflect its legislative agenda. Whether the
Private Bill has to be admitted or not is decided by the Speaker of the Lok Sabha or
Chairperson of the Rajya Sabha.

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Procedure:
 The Private Member’s Bills are either drafted by the Member of Parliament (MP) or his
staff.
 The MP who wants to move a Private Member’s Bill has to give at least a month’s
notice, for the House Secretariat to examine it for compliance with constitutional
provisions and rules on legislation.
 While a government Bill can be introduced and discussed on any day, a private
member’s bill is only introduced and discussed on Fridays.
 In case of multiple Bills, a ballot system is used to decide the sequence of bills for
introduction.
 The Parliamentary Committee on Private Member’s Bills and Resolutions goes through
all such Bills and classifies them based on their urgency and importance.
No Private Member’s Bill has been passed by the Parliament since 1970, according to PRS
Legislative Research. So far, the Parliament has passed 14 such Bills, six of them in 1956.
The 16th Lok Sabha (2014-19) witnessed the highest number of Private Member Bills
introduced (999) since 2000.
Budget in Parliament: As regards the procedure to be followed in the Houses of
Parliament for the purpose of timely completion of the financial business, Article 119
confers power of the Parliament to make law for the purpose.
In financial matters, the legislative procedure is initiated with the presentation of the
Annual Budget in the two Houses of the Parliament various estimates, the demands for
grant and appropriation bill is discussed and passed by the house.
Annual Financial Statement (Article 112): Article 112(1) provides: “The President shall
in respect of every financial year shall cause to be laid before both the Houses of
Parliament a Statement of the estimated Receipts and Expenditure of the Government
of India for that year, referred to as the Annual Financial Statement”. “Annual Financial
Statement” is commonly known as the “Annual Budget”
The estimates of expenditure embodied in the Annual Financial Statement shall show
separately:
 The sums required to meet expenditure scribed by this Constitution as expenditure
charged upon the Consolidated Red of India; and
 The sums required to meet other expenditure proposed be made from the
Consolidated Fund of India. It shall also distinguish expenditure on Revenue Account
from other expenditure.
Expenditure Charged upon the Consolidated Fund of India [Article 112(3)]: The
essential characteristic of this expenditure is that it is not subjected to vote of the
Parliament. The Parliament can neither refuse this expenditure nor reduce it. However,
the Members of Parliament are not prevented from discussing this expenditure.” The
following expenditure has been declared by the Constitution as expenditure charged
upon the Consolidated Fund of India:
 The emoluments and allowances of the President and other expenditure relating to
his office.
 The salaries and allowances of the Chairman and the Deputy Chairman of the Council
of States, and the Speaker and the Deputy Speaker of the House of People.
 The debt charges for which the Government of India is liable including interest, sinking
fund charges and redemption charges, and other expenditure relating to the raising
of loans and the service and redemption of debt.

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 The salaries, allowances and pensions payable to or in respect of the Judges of the
Supreme Court, the pensions payable to or in respect of Judges of the Federal Court,
the pension payable to or in respect of Judges of any High Court.
 The salary, allowances and pension payable to or in respect of the Comptroller and
Auditor General of India.
 Any sums required to satisfy any judgment, decree or award of any Court or arbitral
tribunal.
 Any other expenditure declared by Constitution or by Parliament, by law, to be so
charged.

TYPES OF FUND
Consolidated Fund of India (article 266): It is the account of the revenue the
Government of India receives — via income tax, Customs, central excise and the non-
tax revenue — and the expenses it makes, excluding exceptional items.
 Any money raised by the government, including loans through public notifications,
treasury bills, and borrowings from foreign governments or international
institutions, is always credited to this fund. Likewise, whatever money the Indian
government spends — government expenditure — is incurred from this account.
 The government cannot withdraw any fund from this account without the approval
of Parliament. Essentially, a sum of Rs 500 crore from consolidated fund of India is
transferred to the Contingency Fund of India for dealing with any emergency
situation. However, if the contingency fund is not used by the government in a given
financial year, there is no requirement to add more to it.
 Disbursement charged on Consolidated Fund of India: Payment of interests, loans
and advances to state governments, internal debt of the central government, and
grants-in-aid to state governments account for the bulk of expenditure.

CONTINGENCY FUND OF INDIA

It is constituted under Article 267(1) of the Indian Constitution.
 It is used at a time when there is a crisis in the nation, a natural calamity, for
instance and money is required to deal with it. The Union government has its own
contingency fund with a corpus of Rs 500 crore.
 States can also opt to have their own contingency funds. The contingency fund of
the Union government is at the disposal of the President of India, who releases the
funds on request of the Union Cabinet, which later gets an approval from
Parliament. A Parliament approval is mandatory.
 After the emergency has been dealt with, the fund is reimbursed to its full capacity
of Rs 500 crore. This required money comes from the Consolidated Fund of India.
Public Account of India: (article 266):
 All other public money (other than those which are credited to the Consolidated
Fund of India) received by or on behalf of the Government of India shall be credited
to Public account of India. Example: Deposits in provident funds, judicial deposits,
savings bank deposits, departmental deposits, and remittances.
 The approval of Parliament for such payments is not necessary.
 This is not the money of the government, but of public, so must returned to them.

Demand for Grants: (article 113):

 Article 113(1) provides that so much of the estimates in the Annual Budget as relate
to expenditure charged upon the Consolidated Fund of India shall not be submitted

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to the vote of Parliament. However, this Clause shall not be considered as preventing
the discussion in either House on any of these estimates.
 The estimates as relate to other expenditure proposed to be made, sha be submitted
to the Lok Sabha, in the form of “Demands for Grants” Thus, the “Demands for Grants”
are the estimates of expenditure contained in the Annual Budget, which is submitted
to the Lok Sabha for being passed by it. The Lok Sabha has full power to allow or to
refuse or to reduce any of these
 “Demands for Grants”. However, no “Demands for Grants” shall be made to the Lok
Sabha except on the recommendation of the President.
Appropriation Bill (Article 114): Article 114(1) provides that soon after the “Demands
for Grants” made to the Lok Sabha are passed by the House, a Bill known as the
Appropriation Bill shall be introduced in the Lok Sabha for the appropriation of money
out of the Consolidated Fund of India. Appropriation Bill shall include:
1. The Demands for Grants so passed by the Lok Sabha under Article 113(2).
2. The expenditure charged upon the Consolidated Fund of India.
The Appropriation Bill shall not contain the expenditure exceeding the amount
shown in the Annual Financial Statement previously laid before the Parliament.
 Clause (2) of Article 114 provides that no amendment shall be proposed to the
Appropriation Bill in either House of the Parliament which would have the effect of
varying the amount or altering the destination of any grant so passed by the Lok
Sabha. Whether any amendment is admissible or not shall be finally decided by the
Presiding Officer of the Lok Sabha.
 The Appropriation Bill, when passed by the Lok Sabha, shall be endorsed by the
Speaker, that, it is a Money Bill. It shall then be transmitted to the Rajya Sabha. As, it
is endorsed as a Money Bill, the Rajya Sabha would have no power to reject it. The
endorsement would have the effect of restricting the power of Rajya Sabha on that
Bill. After the Appropriation Bill is passed by both the Houses, and is assented to by
the President, it becomes the Appropriation Act. It is only under this Appropriation Act
that any money can be withdrawn by the Government from the Consolidate Fund of
India.
Votes on Account [Article 116(1) (a)]: “Votes on Account” are the grants which are made
in advance in respect of the estimated expenditure for a part of financial year pending
the completion of the procedure prescribed for the passing of the Annual Appropriation
Bill contained in Articles 113 and 114. The Votes on Account shall mention separately the
expenditure which is declared to be charge on Consolidated Fund of India.
Vote of Credit (Article 116(1) (b)]: Vote of Credit” is a grant which is made for meeting
an unexpected demand upon the resources of the Government when on account of the
magnitude or indefinite character of the service, the demand cannot be stated with the
details ordinarily given in the Annual Financial Statement.
The provisions of Articles 113 and 114 are applicable to the making of any vote of credit.
Exceptional Grants [Article 116(1) (c)]: An “Exceptional Grant” is a grant which forms
no part of the current service of any financial year. The provisions of Articles 113 and 114
would have effect in relation to the making of such a grant.
Supplementary, additional or excess grants (Article 115) Supplementary grants are
those-grants which are required to meet any supplementary or additional expenditure.
The need arises for making of supplementary grants when:
 The amount authorised under the annual Appropriation particular service for the
current financial year is found to be insufficient for the purpose of that year, or

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 A need has arisen during the current financial year, for additional expenditure upon
some new service not contemplated in the Annual Financial Statement for that year,
or
 Any money has been spent on any service during a financial year in excess of the
amount granted for the purpose.
The statement showing the estimated amount of the supplementary or additional
expenditure is caused to be presented to the Lok Sabha by the president. The provisions
of Articles 112, 113 and 114 would be effective for making of the supplementary grants.

8. PARLIAMENTARY PRIVILEGES
Parliamentary privilege refers to rights and immunities enjoyed by Parliament as an
institution and MPs in their individual capacity, without which they cannot discharge their
functions as entrusted upon them by the Constitution
Types of Privileges
Privileges of Parliamentarians
Freedom of Speech: No member can be taken to task anywhere outside the four walls
of the House (e.g. court of law) or cannot be discriminated against for expressing his/her
views in the House and its Committees.
Freedom from Arrest: It is understood that no member shall be arrested in a civil case
40 days before and after the adjournment of the House when the House is in session.
Exemption from attendance as witnesses: The members of Parliament also enjoy
freedom from attendance as witnesses.
Privileges of Parliament:
 Right to publish debates and proceedings
 Right to exclude strangers
 Right to punish members and outsiders for breach of its privileges
 Right to regulate the internal affairs of the House
 Giving any misleading statement in the house
 Disturbance by the outsiders
 Any kind of assault on the members
 Writings or speeches about the character of the member
Breach of Privilege: The House may impose the following punishments on a person
found guilty of breach of privilege or contempt of the House.
 Imprisonment: The period for which the House can commit an offender to prison for
contempt or breach of its privileges is limited by the duration of the session of the
House.
 Admonition or reprimand: Example: Shri S.C. Mukherjee, a Government officer was
reprimanded for deliberately misrepresenting facts and giving false evidence before
the Committee on Public Accounts. Shri R.K. Karanjia, Editor of a weekly magazine
‟Blitz‟ was reprimanded for publishing a libelous (wrong accusation) dispatch in his
magazine.
 Punishment given to its own members: If any contempt is committed by the
members of the parliament then, he is to be punished by the house itself which could
also result in the suspension of the member from the house.
Relation between Court and Assembly: The question of Parliament-Court relationship
often arises in privilege matters.

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This involves several postulates:

 Who; whether the court or the Legislature, decides, whether a particular privilege
claimed by a House exists or not?
 When a privilege is held to exist, Is House the final judge of how, in practice that
privilege has to be exercised?
 Can the Courts go into the question of validity or propriety of committal by a House
for its contempt or breach of privilege?
 Can the Courts interfere with the working of the Committee of privileges?
Case of West Bengal: The Speaker of the Assembly granted temporary permission to
two communist M.L.As to remain on the Assembly premises in order to avoid arrest
under the Preventive Detention Act. The court observed that general immunity cannot
be conferred upon Members from arrest. The only immunity permitted by established
practice in Britain is that the arrest cannot be effected within the precincts of the
chamber when the House is actually sitting.
SC Case on Immunity enjoyed by Parliamentarian:
 Sita Soren VS UOI: Question before the Court was a legislator who accepts a bribe to
vote in a certain manner and does not vote in that manner, enjoys parliamentary
immunity from prosecution? The High Court replied:- As he has taken Bribe, but not
voted as per this, he is immune and enjoys Parliamentary Immunity. The verdict was
challenged before 5 judge bench in SC, and the status today is matter is before SC
without any verdict.
 Raja Ram Pal VS Speaker of Lok Sabha: Immunity was restricted only to bribery ‘in
relation to’ any vote, not other acts such as raising questions or allocating local area
development funds.
 Tej Kiran Jain VS Sanjiva Reddy: Supreme Court laid down that no defamation
proceedings could arise from speeches made by parliamentarians. It was held that
the immunity under Article 105(2) is applicable to ‘anything’ said or ‘any’ vote.
Purpose of Parliamentary Proceedings:
 To ensure that people’s representatives enjoy complete freedom and that they
perform their functions without any apprehension of legal liability.
Need for Codification:
 Unwise Use of Power of Privileges: Karnataka assembly has sentenced Ravi Belagere
of Hi Bangalore and Anil Raj of Yelahanka Voice for a year in jail for writing defamatory
articles against legislators.
 Against Article 19:- Freedom of Speech and Expression is limited, then Why not
Parliamentary Privileges.
 Privileges may also be used for shielding the criminal cases also.
 In India we follow Popular Sovereignty, not Parliamentary Sovereignty.
 The Constitution implicitly provided for a law to codify privileges and adopted the
practice in the House of Commons as a temporary measure. The Constitution says
that “In the absence of any law, such privileges would be the same as those enjoyed
by the House of Commons at the commencement of the Constitution”. However, this
provision was amended in 1978 to state that the privileges would be the same as
enjoyed by the Houses of Indian Parliament as on the date of effect of that
amendment.
 Codification would fix the exact limit of the breach of privileges after which no
punishment can be inflicted.

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 It would define precisely what constitutes and amounts to a breach of privileges.

 Relief from the court can be easily available if privileges are codified.
Codification is not required:
 It would challenge the Sovereignty of Indian Parliament.
 It would lead to judicial scrutiny of privileges especially when it comes in conflict with
fundamental rights.
 It would make the evolution of new privileges very difficult.
 The members should have the freedom to discharge their functions, including the
right to speak and vote within Parliament, without the fear and favour which requires
these parliamentary privileges.
Resistance for Codification:
 Our legislators basically resist codification, because it would make the privileges
subject to judicial scrutiny.
 Also, it would make evolution of new privileges not possible.

9. ANALYSIS OF WORKING OF PARLIAMENT

While parliament has become more representative, it has declined in status and
effectiveness. While it continues to be a ‘reactive legislature’, parliament’s role in India’s
political system is more marginal than it was in the country’s early years.
Testimony that Parliament is in Decline –
 Decline in the number of sittings in Indian Parliament: According to the analysis
of PRS Legislative Research (PRS), against the average 127 days of sitting in the 1950s,
Lok Sabha met only 74 times in 2012. The 16th Lok Sabha sat for 331 days and 1,615
hours less than by 137 days and 1,074 hours of all full-term Parliaments.
 Decline in duration of Budget session: In the year 2012, both Houses met for only
35 days but the irony is that 92 percent of budgetary proposals were put to vote
without any discussion. Although this particular Lok Sabha (16th Lok Sabha) spent 50
and 30 hours more than the 15th and 14th Lok Sabhas, question hours declined and
83 per cent of the Budget was passed without discussion.
 Attendance of Members: Speakers have turned their eyes away from the necessity
of having the quorum for the sitting to proceed. Even in the fifteenth Lok Sabha, there
were only seven out of 545 members having 100 % attendance.
 Decrease in the number of questions answered in Indian Parliament: In 2012 only
144 questions in Lok Sabha and 157 questions in Rajya Sabha being answered orally,
However In 16th Lok Sabha, on an average, 562 MPs have asked 251 questions and
attended 221 out of 312 sittings.
 Tabling the Bill: The manner in which the bill (j & k reorganisation bill) has been
placed is a direct violation of Rules of procedure and conduct of business Rules 69
which talks about Motion before introduction of bills.
 Role of Parliamentary Committee: In the 16th Lok Sabha, fewer Bills (26 per cent)
are being referred to Parliamentary Committees as compared to the 15th Lok Sabha
(71 per cent) and the 14th Lok Sabha (60 percent). For example, RTI Amendment Act
(2019), UAPA Amendment Act (2019) – which have huge implications on civil liberties,
were passed without referring them to the Parliamentary committee.
 Tendency to take the route of Ordinance: In the past four years, over 35 ordinances
have been promulgated.

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Reason for decline:

 Extreme Majority of any single party reduces the role of opposition.
 Absence of Inner Party Democracy.
 Growth of Delegated Legislation.
 Criminalisation of Politics:- According to ADR, In 2004, 24% of the Members of
Parliament (MPs) had criminal cases pending against them. This number has
increased to 43% of MPs in 2019.
 Technicality of Government Business.
Parliament is not in decline:
 Out of 273 bills introduced in the 16th Lok Sabha, 240 were passed, 10 bills were
withdrawn and 23 bills remain pending.
 In 16th Lok Sabha, on an average, 562 MPs have asked 251 questions and attended
221 out of 312 sittings. Data reveals that 171 MPs asked questions relating to farmers’
suicides. In addition, a majority of questions were asked on issues relating to finance,
health, family welfare and the railways.
 The average attendance of MPs in Lok Sabha was 81%, while in Rajya Sabha it was
80%.
 Over the last three years, Lok Sabha MPs in the age group of 40-55 years asked 242
questions. In comparison, MPs above the age of 70 years, asked 133 questions.
Suggestion:
 Legislative Impact Assessment:- Every legislative proposal must incorporate a detailed
account of social, economic, environmental and administrative impact for wider
awareness and subsequent legal assessment.
 Codification of Privileges.
 Hybrid system of voting:- It is a mix of both first-past-the-post and proportional
representation voting system. It was recommended by the Law Commission in its
170th report which suggested that 25% or 136 more seats should be added to the Lok
Sabha and be filled by proportional representation.
 Strengthening the role of opposition:- Shadow cabinet can be thought of. In such a
system each action of Cabinet Minister must be countersigned by the minister in the
shadow cabinet.
 Setting up special courts/tribunals for time bound adjudication on criminal complaints
against legislators and election related matters.
 India needs a parliamentary budget office, akin to the U.S. Congressional Budget
Office, which can be an independent and impartial institution devoted to conducting
a technical and objective analysis of any Bill. It is because CAG does retrospective
auditing, not questioning the policy of the Government.
 15 Point Reform Charter by Vice President:
 Parties need to ensure at least 50% of legislators attendance.
 Review of the whip system which is “stifling reasonable dissent even on non-
consequential matters”.

10. PARLIAMENTARY COMMITTEE

The work done by the Parliament in modern times is not only varied and complex in
nature, but also considerable in volume. The time at its disposal is limited. It cannot,
therefore, consider all the legislative and other matters that come up before it. A good

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deal of its business is, therefore, transacted in Committees of the House, known as
Parliamentary Committees
Parliamentary Committee means a Committee which is appointed or elected by the
House or nominated by the Speaker and which works under the direction of the Speaker
and presents its report to the House or to the Speaker and the Secretariat.
By their nature, Parliamentary Committees are of two kinds: Standing Committees and
Ad hoc Committees.
 Standing Committees are permanent and regular committees which are constituted
from time to time in pursuance of the provisions of an Act of Parliament or Rules of
Procedure and Conduct of Business in Lok Sabha. The work of these Committees is of
continuous nature. The Financial Committees, Department Related Standing
Committees (DRSCs) and some other Committees come under the category of
Standing Committees.
 Ad hoc Committees are appointed for a specific purpose and they cease to exist
when they finish the task assigned to them and submit a report. The principal Ad hoc
Committees are the Select and Joint Committees on Bills. Railway Convention
Committee, Joint Committee on Food Management in Parliament House Complex etc.
also comes under the category of ad hoc Committees.
Need For Parliamentary Committees:
 Thorough scrutiny of bills
 Eases work burden of the Executive as it is involved in multiple works.
 Allows detailed deliberation on the Bills in a calm atmosphere.
 Parliamentary Committees acts as vibrant link between the Parliament, the Executive
and public - through opinion seeking.
 Committees assist Legislature & Prevent Misuse of Power of Executive.
 Through Committees, Parliament exercises its control and influence over
administration.
 Provides Expertise on diverse areas of legislations which helps in understanding the
nuances of any Issue at hand.
 Give opportunity to new MPs (back benchers) who do not get adequate time to speak
in Parliament.
 The committee system is designed to enhance the capabilities of MPs, enlighten them
on the whole gamut of government activity and contribute ideas to strengthen
parliamentary system and improve governance.
Challenges of Parliamentary Committees:
 Elections to Parliamentary Committees occur annually; this often leads to continuous
change in their composition. MPs fail to develop specialization.
 Lack of adequate specialized secretariat support.
 There is no mandate in the rule of both houses of Parliament to necessarily refer bills
to Standing Committees; Government in the name of exigency does not want bills to
be referred to Standing Committees. This often leads to lack of detailed scrutiny of a
bill.
 MPs are unable to pay attention to committees as their political, social obligations and
constituencies make a huge demand on their time. They fear that if they fail to attend
to these, they will lose election.

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 Despite the committee functioning under the overall control of the presiding officers,
no mechanism for a regular assessment of performance of committees have been put
in place.
Way Forward:
 Tenure of Parliamentary Committees needs to be increased to the term of the house.
 Presiding officers should send all bills for scrutiny by Parliamentary Committees.
 A mechanism needs to be developed for regularly assessing the performance of
committees by presiding officers. For eg. A meeting of chairman of all committees with
the Speaker and Vice-President should happen during each session of the house.
Public Accounts Committee (PAC)
Significance: PAC charged with a critical function of legislature, overseeing government
finances. PAC holds ministries accountable to audit reports of the CAG, inquiries into
whether government funds were spent for purposes for which they were allocated, and
into the reasons for any excess expenditure by government bodies.
 Highest Parliamentary financial oversight committee.
 Even increasing demand from citizens for probity and accountability especially in
matters of public finance.
 PAC should function as a model and mentor for the PACS functioning in the State
legislatures ensuring integrity of public expenditure at State level.
Historical Evolution: First set up in 1921 in the wake of the Montague- Chelmsford
Reforms, underwent a radical change with the coming into force of the Constitution
(1950), when the PAC became a Parliamentary Committee functioning under the control
of the Speaker with a non-official Chairman appointed by the Speaker from among the
Members of Lok Sabha elected to the Committee. The Minister of Finance ceased to be
a Member of the Committee.
Structure of PAC:
 PACs constituted by Parliament every year.
 Members of PAC-Consists of 22 members of which 15 are from Lok Sabha and 7
members of Rajya Sabha elected every year according to the principle of proportional
representation by means of single transferable vote.
 Chairperson appointed by Speaker. There is convention that the Chairman is from
opposition.
 Union Minister is not eligible to be elected as a member of PAC.
 The Reports of the Committee are adopted by consensus among members.
Functions:
 Consider Demands for Grants of various Ministries/Departments of Union
Government and make reports to the Houses. Thus, PAC ascertains that money
granted by Parliament has been spent by the government within the scope of the
demand.
 Brings extravagant expenditure into notice of Parliament The committee not only
ensures that ministries spend money in accordance with parliamentary grants, but
also brings to the notice of the Parliament instances of extravagance, loss, in fructuous
expenditure and lack of financial integrity in public services.
 Examine Bills referred to Committee by Chairman, Rajya Sabha or the Speaker, Lok
Sabha and make reports thereon.
 Consider Annual Reports of Ministries/departments, Policy Documents and make
suitable reports.

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 Examine Report of CAG of accounts of the Union Government submitted by CAG to

the President. Article 151 of the Indian constitution requires the President to lay this
report before each House of the Parliament.
 In examining the report of the CAG, the committee has to satisfy itself that
 The expenditures made by the government, were authorized by the Parliament.
 That the expenditures under any head has not crossed the limits of parliamentary
authorization.
 Examine Accounts & Audit Reports – The Committee is assisted by the Comptroller
and Auditor General in the examination of Accounts and Audit Reports on revenue
receipts, expenditure by various Ministries/ Departments of Government and
accounts of autonomous bodies.
 Examine Loopholes in Tax Administration – While scrutinising the Reports of CAG on
revenue receipts, PAC examines various aspects of Government’s tax administration.
PAC examines cases involving under-assessments. tax evasion. non-levy of duties.
misclassifications etc. identifies the loopholes in the taxation laws and procedures and
makes recommendations to check leakage of revenue.
 PAC does not examine the accounts relating to such public undertakings as such
accounts are allotted to the Committee on Public Undertakings.
 PAC cannot question policies of government – It only concerns itself with the execution
of policy on its financial aspects.
 Summoning by PAC – Representatives of Ministries appear before it while examining
Accounts and Audit.
 Reports relating to their Ministries A Minister is not called before Committee either to
give evidence or for consultation in connection with examination of Accounts by the
Committee.
 Evaluates Taxation Issues PAC examines cases (involving under-assessments, tax
evasion, non-levy of duties misclassifications etc., identifies loopholes in taxation laws
and procedures and makes recommendations to check leakage of revenue.
 Examines various Audit Reports of the CAG on revenue receipts, expenditure by
various Ministries/Departments of Government and accounts of autonomous bodies.
Challenges With Functioning Of PAC:
 The Committee, however, does not examine the accounts relating to such public
undertakings as are allotted to the Committee on public undertakings
 Cannot question policies of the government. It only concerns itself with the execution
of policy on its financial aspects.
 The reports of the committee are adopted by consensus. This creates issues as
dissenting issues are usually dropped by committee.
 Challenges of reports of CAG on which PAC reports are based: increase share of
government expenditure through NGOs and Public Private Partnership which are
beyond the mandate of CAG audit
Summoning By PAC:
 The representatives of the Ministries appear before the Committee while examining
the Accounts and Audit Reports relating to their Ministries. A Minister is not called
before the Committee either to give evidence or for consultation in connection with
the examination of Accounts by the Committee.
 The Chairperson of PAC may whenever he considers necessary, (after its deliberations
are concluded) have an informal talk with the Minister concerned to apprise her/him

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of any matters of policy laid down by the Ministry with which the Committee does not
fully agree: and any matters of secret and confidential nature which the Committee
would not like to bring on record in its report.
Report of PAC Presented in Lok Sabha and Rajya Sabha:
 After conclusion and adoption of Report by PAC, the Report is presented by the
Chairperson to the Lok Sabha and a copy of the Report is also laid on the Table of
Rajya Sabha. The Reports of the Committee are adopted by consensus among
members.
 After presentation to the Lok Sabha, copies of the Report are forwarded to the Ministry
or Department concerned which is required to act on the recommendations and
observations contained in the Report and furnish action taken notes thereon within
six months from the date of presentation of the Report.
 Action taken by Ministry or Department is taken note of and report of actions taken
by the concerned ministry or department on suggestions of PAC is laid on the table of
Lok Sabha and Rajya Sabha.
 Replies received from Government in respect of recommendations contained in the
Action Taken Reports after approval by the Chairperson are also laid on the Table of
Lok Sabha/Rajya Sabha in the form of Statements.
Strengthening Public Accounts Committee:
 PAC should be consulted before appointment of CAG as PAC and CAG work in tandem
to ensure integrity of government finances.
 PAC should frequently form sub-committees to explore more reports.
 Need for Suo moto selection of subjects i.e. apart from Audit report based
examination.
 Strengthening of Secretariat of PACS by inducting professionals and experts.
 PAC can consider collection of information through social audit agencies, NGOs and
through internet portals dedicated to PACS.
 Dissent notes for differing opinions should be allowed in the reports of PAC which will
allow differing opinions to find space in the reports of PAC.
Estimate Committee: The origin of this committee can be traced to the standing
financial committee set up in 1921. The first Estimates Committee in the post-
independence era was constituted in 1950 on the recommendation of John Mathai, the
then finance minister.
Structure:
 Originally, it had 25 members but in 1956 its membership was raised to 30. All the
thirty members are from Lok Sabha only.
 The Rajya Sabha has no representation in this committee. These members are elected
by the Lok Sabha every year from amongst its own members, according to the
principles of proportional representation by means of a single transferable vote.
 The term of office is one year. A minister cannot be elected as a member of the
committee.
 The chairman of the committee is appointed by the Speaker from amongst its
members and he is invariably from the ruling party.
The function of the committee is to examine the estimates included in the budget and
suggest economies in public expenditure. Hence, it has been described as a ‘continuous
economy committee’. In more detail, the functions of the committee are:

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 To report what economies, improvements in organisation, efficiency and

administrative reform consistent with the policy underlying the estimates, can be
affected.
 To suggest alternative policies in order to bring about efficiency and economy in
administration.
 To examine whether the money is well laid out within the limits of the policy implied
in the estimates.
 To suggest the form in which the estimates are to be presented to Parliament The
Committee shall not exercise its functions in relation to such public under- takings as
are allotted to the Committee on Public Undertakings.
 The Committee may continue the examination of the estimates from time to time,
throughout the financial year and report to the House as its examination proceeds.
It shall not be incumbent on the Committee to examine the entire estimates of any
one year. The demands for grants may be finally voted despite the fact that the
Committee has made no report.
However, the effectiveness of the role of the committee is limited by the following:
 It examines the budget estimates only after they have been voted by the Parliament,
and not before that.
 It cannot question the policy laid down by the Parliament.
 Its recommendations are advisory and not binding on the ministries.
 It examines every year only certain selected ministries and departments. Thus, by
rotation, it would cover all of them over a number of years.
 It lacks the expert assistance of the CAG which is available to the Public Account
Committee.
 Its work is in the nature of a post- mortem.
Departmental Standing Committee:
 There are 24 Departmentally Related Standing Committees covering under their
jurisdiction all the Ministries/ Departments of the Government of India. These
Committees have played an important role in not only making the executive
accountable but also providing meaningful assistance to the executive through their
comprehensive reports on important issues. Let us investigate the constitution,
composition, functions and challenges in its functioning.
 The need to constitute Subject Specific Committees or Department-related
Parliamentary Standing Committees was felt for the last several years.
 In 1989, in fact, 3 Standing Committees were constituted which dealt with Agriculture,
Science and
 Technology and Environment and Forests.
 These Subject Committees were to examine the activities of the concerned
Ministries/Departments and to report as to what economies, improvements in
organisation, efficiency or administrative reforms consistent with the policy approved
by Parliament might be effected. Apart from other functions, these Committees were
to examine the Annual Reports and Plan Projects/activities of the concerned
Ministries.
 In 1993, it was finally decided to set up 17 Department-related Parliamentary Standing
Committees each consisting of 15 members of Rajya Sabha and 30 from Lok Sabha to
cover various Ministries/Departments of the Union Government to further strengthen
the accountability of the Government to Parliament.

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Composition: With the addition of 7 more Committees in July 2004, the number of
Department-related Parliamentary Standing Committees was raised to 24 but with
reduced membership of 10 members from Rajya Sabha and 21 members from Lok
Sabha.
Jurisdiction:
 Of the total Department-related Parliamentary Standing Committees, 8 were placed
within the jurisdiction of the Chairman, Rajya Sabha and 16 within the jurisdiction of
the Speaker, Lok Sabha.
 The Chairmen of the first 8 Committees are appointed by Chairman, Rajya Sabha and
the remaining 16 by the Speaker of Lok Sabha.
 Rules 268 to 277 of the Rules of Procedure and Conduct of Business in the Conduct of
States and Rules 331 C to 331 N of the Rules of Procedure and Conduct of Business in
Lok Sabha govern the Constitution and functioning of these Committees.
DRPSC Makes Executive More Accountable By:
 Considering the demands for grants of the relate a Ministries/ Departments and
report thereon.
 The report shall not suggest anything of the nature cut motions.
 Examining bill relating to Ministries/Departments, referred to Committee by Chairman
or Speaker and report thereon.
 Considering Annual Reports of Ministries/Departments and report thereon.
 Considering National Basic Long Term Policy Documents presented to the Houses, if
referred to the Committee by the Chairman or the Speaker and report on such policy
documents.
Important Facts:
 The Standing Committees do not consider the matters of day-to-day administration
of the Ministries/Departments. Committees also do not generally consider the These
matters which are under consideration by other Parliamentary Committees.
 A Minister is not nominated as a member of the Committee. If a member, after his/her
nomination to the Committee, is appointed a Minister, he/she ceases to be a member
of the Committee from the date of such appointment
The procedure to be followed by each Standing Committee during the
consideration and preparation of report on the Demands for Grants is as follows:
 After the general discussion on the Budget in the House is over, the Houses shall be
adjourned for a fixed period.
 The Committees shall consider the Demands for Grants of the concerned Ministries
during the aforesaid period.
 The Committees shall make their report within the period and shall not ask for more
time.
 The Demands for Grants shall be considered by the House in the light of the reports
of the Committees.
 There shall be a separate report on the Demands for Grants of each Ministry.
Procedure relating to examination and reporting on Bills by DRSCS is as follows:
 the Committee shall consider the general principles and clauses of the Bills referred
to them and make report thereon.
 the Committee shall consider only such Bills introduced in either of the Houses as are
referred to them by the Chairman, Rajya Sabha or the Speaker. as the case may be;
and

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 the Committee shall make report on the Bills in the given time.
Examples-Report of DRPSC
 Personnel, Public Grievances, Law and Justice identified the shortcomings and
suggested measures to facilitate effective and efficient redressal of public grievances.
Suggested to forward grievances to state governments received on CPGRAMS.
 Various Bills such as Mediation Bill 2021, Wildlife Protection Amendment Bill And Anti-
Doping bill has also been referred to respective DRPSCs.
 In its Report on Electric & Hybrid Mobility - Prospects And Challenges In Automobile
Industry– the committee considered suggestions from industry and stakeholders
SIAM, ACMA, Automobile companies etc. suggested to scale up transition process to
electric mobility.
Issue with Functioning:
 Shorter tenure of 1 year is inadequate and even the Vice President in its
Recommendations on Parliamentary Reforms have suggested for longer tenure of
DRPSCS.
 Delay in constitution of the committees by the government has been another concern.
 Consideration of demand for grants within a fixed period after discussions on demand
for grant.
 Reports of the Committees have persuasive value and are not binding on the
executive. This decreases the accountability of the executive.
Despite the concerns, DRPSCs have made the executive more accountable through its
various reports which have helped the government to take suitable actions. Thus, the
DRPSC makes the Parliament more effective in exercising control over and giving
direction to the executive functioning and thereby making the executive more
accountable.

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16
Chapter THE GOVERNOR
TOPICS TO BE COVERED
1. The Governor
2. Council of Ministers
3. Advocate General of State

1. THE GOVERNOR
Articles 152 to 167 & 213 Part VI, of the Constitution, containing Articles 152 to 237
regulates the matters relating to structure of the Government in the States specified in
the First Schedule of the Constitution.
The State executive consists of the Governor, the State Council of Ministers and the
Advocate-General of the State.

THE GOVERNOR
Article 153 provides that there shall be a Governor for each State. The Proviso to Article
153, inserted by the Constitution (Seventh Amendment) Act, 1956, explains that there
shall be no prohibition as to the appointment of the same person as Governor of two or
more States.

APPOINTMENT OF THE GOVERNOR (ARTICLE 155)

Article 155 lays down that the Governor of a State shall be appointed by the President by
warrant under his hand and seal. Though, appointed by the President (i.e., the Central
Government), the Governor is not in the employment under the Government of India. It
has been held that the office of the Governor is an independent office and is not under
the control of or subordinate to, the Government of India.”

QUALIFICATIONS (ARTICLE 157)

Article 157 provides that a person to be eligible for appointment as Governor-
1. must be a citizen of India, and
2. must have completed the age of 35 years.
Condition of Governor’s office (Article 158): Article 158 lays down the following
conditions for the office of Governor:
1. The Governor shall not be a member of either House of Parliament or of a House of
the Legislature of any State specified in the First Schedule, and if a member of either
House of Parliament or of a House of the Legislature of any such State be appointed
Governor, he shall be deemed to have vacated his seat in that House on the date on
which he enters upon his office as Governor.
2. The Governor shall not hold any other office of profit.
3. The Governor shall be entitled without payment of rent to the use of his official
residences and shall be also entitled to such emoluments, allowances and privileges
as may be determined by Parliament by law and, until provision in that behalf is so
made, such emoluments, allowances and privileges as are specified in the Second
Schedule.

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4. Where the same person is appointed as Governor of two or more States, the
emoluments and allowances payable to the Governor shall be allocated among the
States in such proportion as the President may by order determine.
5. The emoluments and allowances of the Governor shall not be diminished during his
term of office.

TERM OF OFFICE (ARTICLE 156)

 Governor shall hold office during the pleasure of the President.
 Governor may, by writing under his hand addressed to the President, resign his office.
Oath or Affirmation by The Governor (Article 159): Every Governor and every person
discharging the functions of the Governor shall, before entering upon his office, make
and subscribe in the presence of the Chief Justice of the High Court exercising jurisdiction
in relation to the State, or, in his absence, the senior most Judge of that Court available.
Constitutional Position of Governor: The Constitution of India provides for a
parliamentary form of government in the states as in the Centre. Consequently, the
governor has been made only a nominal executive, the real executive constitutes the
council of ministers headed by the chief minister. In other words, the governor has to
exercise his powers and functions with the aid and advise of the council of ministers
headed by the chief minister, except in matters in which he is required to act in his
discretion (i.e. without the advice of ministers).
In estimating the constitutional position of the governor, particular reference has
to be made to the provisions of Articles 154, 163 and 164. These are:
 The executive power of the state shall be vested in the governor and shall be exercised
by him either directly or through officer’s subordinate to him in accordance with this
Constitution (Article 154).
 There shall be a council of ministers with the chief minister as the head to aid and
advise the governor in the exercise of his functions, except in so far as he is required
to exercise his functions in his discretion (Article 163).
 The council of ministers shall be collectively responsible to the legislative assembly of
the state (Article 164). This provision is the foundation of the parliamentary system of
government in the state.
From the above, it is clear that constitutional position of the governor differs from
that of the president in the following two respects:
 While the Constitution envisages the possibility of the governor acting at times in his
discretion, no such possibility has been envisaged for the President.
 After the 42nd Constitutional Amendment (1976), ministerial advice has been made
binding on the President, but no such provision has been made with respect to the
governor.

ACTIVIST GOVERNOR
West Bengal Governor: Clash with West Bengal Chief Minister Mamata Banerjee over
the Citizenship Amendment Act and proposed National Register of Citizens (NRC). He
accused the Mamata Banerjee-led government of turning it into a police state.
Maharashtra Governor: He has taunted the Government when they become secular.
Such comment is against Constitutional ideas where secularism is considered as the
Basic Feature of the Constitution. Recently, the Governor of Rajasthan has been charged
with the violation of the model code of conduct. His support of the ruling party (That BJP
should win) is against the spirit of non- partisanship that is expected from the person
sitting on constitutional posts.

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CONSTITUTIONAL ROLE OF GOVERNOR

N A Palkhivala: Governor should be an instrument to maintain the fundamental
equilibrium and uphold the Constitutional mandates.
 Dr. B.R. Ambedkar described how a Governor should use his discretion not as
“representative of a party” but as “the representative of the people as a whole.
 Sarkaria Commission:- Governor must be a person from outside the State.
 Punchhi Commission:- Recommended that Appointment of the governor should be
entrusted to a committee comprising the Prime Minister, Home Minister, Speaker of
the Lok Sabha and chief minister of the concerned state.
The five-judge Constitution Bench in the Nabam Rebia judgment of 2016 ruled that
Article 163 does not give Governors a “general discretionary power” as is often
misunderstood. “The area for the exercise of his (Governor) discretion is limited. Even in
this limited area, his choice of action should not be arbitrary or fanciful.

DISCRETIONARY POWER
Article 163: The Constitution envisages that the Governor act on the aid and advice of the
Council of Ministers, except in those situations in which the decisions can be taken by
the governor’s discretion which is categorized into two parts:
1. Constitutional
2. Situational

CONSTITUTIONAL DISCRETION OF GOVERNOR

Governors of states can act at their constitutional discretion in the following
instances:
 When they have to reserve the bill for the consideration of the President of India,
Governors can decide on their own without the advice of the Council of Ministers
 When he has to recommend for the President’s Rule in the state, he can act at his own
discretion
 When he is given an additional charge as the administrator of the Union Territory, he
can take actions at his own discretion.
Situational Discretion of Governor:
 When he has to appoint a CM after no party has a clear majority in the election or
when the incumbent dies in the office
 When he dismisses the council of ministers on an inability to prove confidence in the
state legislative assembly
 When he dissolves the state legislative assembly on time when it loses its majority

SUPREME COURT CASES RELATED TO GOVERNOR’S OFFICE

Rameshwar Prasad Case (2006):
Supreme Court has ordered following steps to be taken:

S. R. Bommai case (1994): SC put an end to the arbitrary dismissal of State governments
under Article 356 by spelling out restrictions.

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 The President can only suspend the Legislative Assembly by suspending the
provisions of the Constitution relating to the Legislative Assembly.
 If both Houses of Parliament disapprove or do not approve the Proclamation, the
Proclamation lapses at the end of the two-month period. In such a case, the
government which was dismissed revives.
The jurist H.M. Seervai gave an explanation about the spirit of Article 163, which, in a way,
is a prologue to Article 164(1) dealing with “pleasure”. He said, “if Governors have
discretion in all matters under Article 163(1), it would be unnecessary to confer on
Governors an express power to act in their discretion in a few specified matters (by way
of Article 163(2)) Constitutional Law of India.
Shamsher Singh vs State of Punjab (1974), the Supreme Court said that the President and
Governor shall “exercise their formal constitutional powers only upon and in accordance
with the advice of their Ministers save in a few well-known exceptional situations”.
MM Punchhi Commission:
 The party or alliances which get the widest support in the Legislative Assembly should
be called upon to form the government.
 If there is a pre- poll coalition or alliance, it should be treated as one political party.
And in case, such a coalition gets a majority, the leader of such alliances shall be called
by the Governor to form the government.
 In case no pre-poll coalition or party has a clear majority, the governor should select
the Chief Minister in the order of priorities indicated here:
Group of parties which had a pre-poll alliance of the largest number.
 Largest single party which claims to form the government with the support of others.
 A post-electoral alliance with all partners joining the government.
 A post-electoral alliance where parties are joining the government and the remaining
including independents are supporting the government from outside.
 In respect of bills passed by the Legislative Assembly of a state, the Governor should
take the decision within six months whether to grant assent or to reserve it for
consideration of the President.
 On the question of dismissal of a Chief Minister, the Governor should invariably insist
on the Chief Minister proving his majority on the floor of the House for which he
should prescribe a time limit.
 Convention of Governors acting as Chancellors of Universities and holding other
statutory positions should be done away with. His role should be confined to the
Constitutional provisions only.

CASE STUDY
West Bengal Government: There was a public spat between the Governor and the Chief
Minister. The Chief Minister went to the extent of blocking the Governor on social media.
The Governor and the CM had differences on several issues, including the administration
and appointments in State run universities. The West Bengal Assembly (June 2022)
passed a Bill paving the way for making the Chief Minister the Chancellor of State
Universities replacing the Governor from the position.
Kerala Government: Kerala’s Governor sought the resignation of 9 Vice-chancellors
following a Supreme Court judgement setting aside the appointment of the Vice-
Chancellor of a technology university. The Governor had also said that the statements of
individual ministers that lower the dignity of the office of the Governor, can invite action
including ‘withdrawal of pleasure’.

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Rajasthan Government: The Rajasthan Governor has returned the proposal by the
State Cabinet, seeking to convene a session of the Assembly, for the second time, which
would have allowed the Rajasthan chief minister to prove his strength on the floor of the
House.
 This has raised legal questions on the powers of the Governor to summon a House.
 Article 174 of the Constitution authorizes the Governor to summon, dissolve and
prorogue the state legislative assembly.
 However, the Governor can exercise the above only as per Article 163 of the
Constitution which says that the Governor acts on the aid and advice of the Council of
Ministers headed by the Chief Minister.
Nabam Rebia and Bamang Felix vs Deputy Speaker case (the Arunachal Pradesh
Assembly case) said that the power to summon the House is not solely vested in the
Governor and should be exercised with aid and advice of Council of Ministers and not at
his own.
Appointment of Vice Chancellor: A Vice Chancellor (VC) is appointed by Chancellor as
per the State University Act but we also know Education is in concurrent list therefore
UGC has also its rules for the appointment of VC.
SC Judgement: In the first case of Gambhirdan Gadhvi VS State of Gujrat, SC cancelled
the appointment of VC on the ground search committee did not form the panel for the
appointment of VC. And this is not in accordance with UGC Regulation. Now the question
is A VC is appointed by University act, then why SC said it is not as per UGC Regulations.
SC said that State law is not above UGC Regulation.
In the second case Dr Sreejith vs Dr Rajsasree, court said search committee for the
appointment of VC has recommended only one name, thus against UGC Regulation.
Again SC gave same logic.

REASON FOR SUCH JUDGEMENT

If the provisions of State law comes in conflict with Union law, the state law will become
void (Article 254)
Why SC is wrong in using Article 254?
1. Article 254 talks about laws of state and Union, but UGC has framed regulation not
law for appointment of VC.
2. The rules and regulation made by UGC (Though it is framed by Parliament i.e. UGC
Act) does not pass through the same process as state law passes through.
3. The article 13 define the meaning of law which is applicable to that article only, it does
not include the rules, regulation for the purpose of article 254.

2. COUNCIL OF MINISTERS
Article 163(1) provides: “There shall be a Council of Ministers with the Chief Minister at
the head to aid and advise the Governor in the exercise of his functions, except in so far
as he is by or under this Constitution required exercise his functions or any of them in
his discretion.”
 The Chief Minister is appointed by the Governor. The other Ministers are appointed
by the Governor on the advice of the Chief Minister. It is the sole prerogative of the
Chief Minister to form the Ministry by choosing such Ministers as he may deem fit.
Judiciary cannot intervene in the matter or allocation of ministries.
 The Ministers hold office during the pleasure of the Governor. The Council of Ministers
is collectively responsible to the Legislative Assembly of the State.

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 Before a Minister enters upon his office, the Governor administers to him the oaths
of office and of secrecy according to the forms set out for the purpose in the Third
Schedule.
 The salaries and allowances of Ministers shall be such as the Legislature of the State
may from time to time, by law, determine and, until so determined, shall be as
specified in the Second Schedule.
Non-Member as Minister:
 The existence of the Legislative Assembly is not a condition precedent before the
Council of Ministers can be sworn in under Article 164(1).
 Further, it is not necessary that the Chief Minister or a Minister shall always be a
Member of the Legislature of the State. A non-Member may be appointed as Chief
Minister or a Minister. It was held in Ashok Pandey vs Mayawati, that Article 164(4) did
not prevent a non-Member of the Home of the State Legislature, who was a member
of a House of Union Parliament, from being appointed a Minister or a Chief Minister
in the State Council of Ministers.
 However, Clause (4) of Article 164 provides that a Minister who for any period of six
consecutive months, is not a Member of the Legislature of the State, shall at the
expiration of that period, cease to be a Minister.
 A non-Member, who has failed to get himself elected in six consecutive months,
cannot be re-appointed as Minister.” Referring to the relevant provisions of the
English, Canadian and Australian Systems, the Apex Court ruled that repeatedly
appointing as a Minister, a non-member would defeat the basic principle of
representative and responsible Government.
 Further, the Governor’s power under Article 164(4) to appoint a non-legislator as
Minister or Chief Minister for six months subject to implied limitations, i.e., he must
be one who satisfies the qualifications for membership of the Legislature contained
in the Constitution and must not be disqualified from seeking that membership by
reason of any of the provisions therein, on the date of his appointment. Thus, the Apex
Court in B.R. Kapur vs. State of Tamil Nadu,” quashed the appointment of Ms.
Jayalalitha as the Chief Minister of Tamil Nadu, who had been convicted to three years’
rigorous imprisonment in a case and so stood disqualified for being a Member of the
Legislature. five-Judge
 Article 164(4) does not prevent a non-member of a House of State Legislature, who is
a member of a House of Union Parliament, from being appointed a Minister or a Chief
Minister in the State Council of Ministers.
 The Constitution (Ninety-first Amendment) Act, 2003 has inserted Clauses (1A) and
(1B) in Article 164. The new Clause (1A) has done away with jumbo-size Ministries. It
provides that the size of the Council of Ministers in the State would not exceed fifteen
per cent of the Assembly’s total strength, but not less than twelve members.
 The new Clause (1B) provides that a member disqualified under the anti-defection law,
shall not be appointed a Minister for the duration of the remaining term of the existing
Legislature or until his next fresh election, whichever is earlier.
Minister for Tribal Welfare:
 Clause (1) of Article 164 requires that in the State of Chhattisgarh, Jharkhand, Madhya
Pradesh and Orissa there shall be a Minister in charge of Tribal Welfare, who may in
addition, be in charge of the welfare of the Scheduled Castes and backward classes or
any other work.

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Appointment of the Chief Minister: Though, the Chief Minister is appointed by the
Governor, however, he has no discretion in this matter, when the circumstances are
normal.
As a matter of a well-established convention, the Governor is required to invite, the
leader of the majority party in the Lower House of the State Legislature, to form the
government and he is appointed as the Chief Minister of the State.
A five-Judge Constitution Bench of the Supreme Court in B.R. Kapur State of Tamil Nadu,”
ruled that in such a matter people’s mandate would not prevail The Constitution is
supreme and while appointing the Minister, the legal and constitutional requirements,
have to be followed .In doubtful situations, however, the Governor is faced with a
constitutional obligation to act with care and caution in this matter.
The various solutions which were found and adopted in the past are:
 Where none of the parties has obtained majority in the Legislative assembly of the
State: The leader of alliance or coalition or front formed before the elections.
 The leader of the alliance formed after the elections.
 The leader of single largest majority party in the Lower House.
 The leader of single largest party ignoring the claim of the alliance having majority is
invited by the Governor to form the Government.
Dismissal of the Council of Ministers: So long as the party in power has majority in the
Lower House, the Governor cannot dismiss the Ministry, though the Ministers hold office
at his pleasure. Instances are there when the Governor has, exercised his discretion and
ministry enjoying majority support in the Assembly, has been dismissed.
In Mahabir Prasad vs Profulla Chandra, the Calcutta High Court held that Article 164(1)
did not impose any restriction or condition upon the powers of the Governor to appoint
a Chief Minister and to dismiss a Ministry. This matter is a matter entirely in the discretion
of the Governor. The right of the Governor to withdraw the pleasure during which the
Ministers hold, is held to be absolute and unrestricted.
Relying upon the Apex Court’s judgment in R.L.K. Jain v. Union of India and the Bombay
High Court in Pratapsingh Raojirao Rane vs Governor of Goa,’ held that the Governor for
the purpose of appointment of the Chief Minister and for dismissal of the Government
would act in his sole discretion, though his discretion would be restricted by the
paramount consideration of command of majority in the House.
However, in Jagdambika Pal v. Union of India,” the Supreme Court did not approve the
dismissal of Chief Minister of State and swearing in of another person as Chief Minister
without holding a floor test. The Court directed the convening of special Session of the
Uttar Pradesh Assembly and to have a composite floor test between contending parties.
It may be stated that Jagdambika Pal, was a particular fact situation and the order passed
therein, may not said to be a law laid down by the Apex Court. It may, thus, be said that
the acts done by the Governor in his sole discretion, such as under Article 163(1), are
immuned under Article 361(1)
Dissolution of the Legislative Assembly: Article 174(1)(b) confers power on the
Governor to dissolve the Legislative Assembly of the State before the expiration of the
term of five years. In normal circumstances, the Assembly is not dissolved till the expiry
of the term and so long as the Ministry is enjoying support in the House When the
Ministry has lost the majority support and no alternative stable Ministry is possible,
he may exercise his discretion and dissolve the Legislative Assembly. In S.R. Bommai v.
Union of India, the Supreme Court has laid down guidelines in this respect and has held
that the Assembly should not be dissolved until the Proclamation made under Article 356
by the President, has been approved by both the Houses of Parliament.

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3. ADVOCATE GENERAL OF STATE

Appointment of the Advocate General of State:
 The governor appoints the advocate general of state on the advice of the council of
ministers of the state. The person who is eligible to hold the office of advocate general
in India must meet the following criteria.
 He must be an Indian Citizen
 He should be eligible to be appointed as the judge of the High Court; i.e. he must meet
one of the following eligibility criteria.
 A barrister having experience of more than 5 years.
 A civil servant with an experience of more than 10 years along with an experience as
a servant in Zila Court for at least 3 years.
 A pleader over 10 years in any high court.
 He shouldn’t be more than 62 years of age, as is the age qualification for a High Court
Judge.
 In the order of precedence, Additional Solicitor General is above the Advocate General
of State.
 The right to be eligible for the post of Advocate General of State is conferred to only
the Indian citizens, and foreigners are not eligible to hold this public office.
Function:
 He has full right to appear in any court of the state.
 He cannot vote in any proceedings of the houses of the state legislature, or any
committee initiated by the state legislature. He though has a right to speak and be a
part of such proceedings.
 Appointment of Advocate General of State.
Term and Removal of Advocate General of State:
 The Constitution does not fix the term of Advocate General in India. He remains in the
office during the pleasure of the Governor.
 The Constitution does not contain the procedure and grounds to remove the Advocate
General of State. Governor can remove him/her at any point in time.
 Resignation of Advocate General – He can resign from the public office by submitting
the resignation letter to the state governor.
 Conventionally, when a council of ministers of a state government resigns, the
advocate general of state too puts down his papers.

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17
Chapter STATE LEGISLATURE
TOPICS TO BE COVERED
1. State Legislature
2. Session of State Legislature
3. Legislative Procedure of State

1. STATE LEGISLATURE
ARTICLES (168 TO 212)
The Constitution provides for a Legislature for every State. However the question as to
whether the State Legislature shall be unicameral (having one House only) or bicameral
(having two Houses), is left for each State to decide for itself.
Constitution Of The State Legislature (Article 168)
Article 168 provides that where there are two Houses of the Legislature one shall be
known as the Legislative Council and the other as the Legislative Assembly, and where
there is only one House, it shall be known as the Legislative Assembly,
Creation and Abolition of the Legislative Council (Article 169):
 Article 169 contains provisions for the creation of the Legislative Council if the State
Legislature does not have a Council and also for the abolition of the Council if it exists.
The procedure is the same for both, the creation as well as abolition of the Legislative
Council.
 Article 169(1) empowers Parliament to make a law for the purpose. However,
Parliament shall make a law for this purpose only on receiving a resolution of the
Legislative Assembly of the State to that effect, passed by a majority of the total
membership of the Assembly and by a majority of not less than two-thirds of the
members of the Assembly present and voting.
 A law enacted by Parliament under Article 169(1) shall not be deemed to be an
amendment of the Constitution for the purposes of Article 368.
Composition of Legislative Council: The Legislative Council, commonly known as
Vidhan Parishad, is the House of the State Legislature. If created under Article 169, it is
instituted, as a permanent House, in the following manner.
Article 171(1) provides that the total number of members in the legislative Council of a
State shall not exceed one-third of the total number members in the Legislative Assembly
of that State, but not less than 40 members in any case.
The composition of the Legislative Council shall be provided, by law, by Parliament. Until
so provided, the Council shall be constituted as provided in clause (3) of article 171.
 One-third of the MLCs are elected by the state’s MLAs,
 Another 1/3rd by a special electorate comprising sitting members of local
governments such as municipalities and district boards,
 1/12th by an electorate of teachers and another 1/12th by registered graduates.

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 The remaining members are appointed by the Governor for distinguished services in
various fields namely, literature, science, art, cooperative movement and social
service.
Significance of Legislative Council:
 Institution of Checks & Balance A second chamber in states acts as an institution of
checks and balances on every Bill as it prohibits hasty, defective, careless & ill-
considered legislation made by the assembly by making provision for revision and
thought.
 Ensures Diverse Representation by facilitating representation of professionals and
experts who cannot face direct elections. The governor nominates one-sixth members
of the council to provide representation to such people.
 Prevent autocracy: It puts a check on autocratic tendencies of the lower chambers.
 Reduce workload of legislative assembly: Legislative council lessens the burden of the
lower House and enables assembly to fully concentrate on measures of greater
importance.
Illustration: The ruling party in Karnataka was worried to get more seats in the
Legislative council during the election because of the fear of non-passing of the anti-
conversion bill in council. This shows the Council keeps a check on hasty legislation.
Criticism:
 Superfluous and Mischievous: If a majority of the members in the upper house
belong to the same party which holds majority in the lower house, the upper house
will become a mere ditto chamber.
 Not an Effective Check: Whether a Bill is approved by the Council or not, assembly
can still go ahead after four months.
 Vested Interests: Legislative Council serves only as a stronghold of vested interests
of people, who are not interested in legislation.
 Backdoor Entrance of the Defeated Members: Legislative Council can be utilised to
accommodate discredited party-men who may not be returned to the Assemblies.
 Expensive Institution: It is expensive and a big drain on the State’s exchequer.
Illustration: The Andhra Pradesh Cabinet decided to abolish the legislative council.
Because the contentious capital decentralisation bill has been blocked by Telegu Desam
party who is in majority in Council. Thus, it looks like an unwanted child in Andhra
Pradesh.
The parliamentary committee advocated for the evolution of a national policy for
creation/abolition of Legislative Councils. It said, ‘The status of Second Chamber cannot
be of temporary nature depending on the mood of the Government of the day nor can
be abolished once created, only at the whims and fancy of a newly elected Government
in the State.’
Legislative Assembly (Article 170):
 The Legislative Assembly, commonly known as Vidhan Sabha, or the lower House of
the State Legislature, is elected directly by people in the State, on the basis of the
system of adult franchise, for a period of 5 years.
 Article 170(1) provides that the Legislative Assembly of each State shall consist of not
more than 500 and not less than 60 members.
 For electing the members, the State is divided into territorial constituencies in such
manner that the ratio between the population of each constituency and the number
of seats allotted to it shall, so far as practicable, same throughout the State. It is

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required with the object of maintaining uniformity in the scale of representation of

the different constituencies.
 The Constitution provides for the reservation of seats in the Legislative assemblies of
the States for the Scheduled Castes and the Scheduled Tribes.

DURATION OF HOUSE OF STATE LEGISLATURE

Legislative Assembly [Article 172(1)]:
 Article 172(1) provides that a Legislative Assembly shall continue for five years from
the date appointed for its first meeting. The Legislative Assembly may, however, be
dissolved by the Governor under Article 174(2) (b) before the expiration of its term of
five years. The expiration of its term of five years operates as dissolution of the
Assembly.
 The term of five years of the Assembly may be extended by Parliament by law, during
the operation in force of a Proclamation of Emergency made under Article 352.
Legislative Council (Article 172(2))
Article 172(2) provides that the Legislative Council of a State shall not be subject to
dissolution, but as nearly as possible one-third of its members shall retire every second
year in accordance with the provisions made by Parliament, by law. Though, the Council
cannot be dissolved by the Governor as is the case with the Legislative Assembly, but the
Council can be abolished by Parliament, by law, made under Article 169.
Qualification for Membership of State Legislature (Article 173):
A person shall not be qualified to be chosen to fill a seat in the Legislature of a State
unless he –
1. is a citizen of India, and makes and subscribes before some person authorized in that
behalf by the Election Commission an oath or affirmation according to the form set
out for the purpose in the Third Schedule;
2. is, in the case of a seat in the Legislative Assembly, not less than twenty-five years of
age and in the case of a seat in the Legislative Council, not less than thirty years of
age; and
3. possesses such other qualifications as may be prescribed in that behalf by or under
any law made by Parliament.
Disqualification for Membership of State Legislature (Article 191):
1. A person shall be disqualified for being chosen as, and for being, a member of the
Legislative Assembly or Legislative Council of a State –
(a) if he holds any office of profit under the Government of India or the Government
of any State specified in the First Schedule, other than an office declared by the
Legislature of the State by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign
State, or is under any acknowledgement of allegiance or adherence to a foreign
State;
(e) if he is so disqualified by or under any law made by Parliament.
Explanation: For the purposes of this clause, a person shall not be deemed to hold
an office of profit under the Government of India or the Government of any State
specified in the First Schedule by reason only that he is a Minister either for the Union
or for such State.

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2. A person shall be disqualified for being a member of the Legislative Assembly or

Legislative Council of a State if he is so disqualified under the Tenth Schedule.
Decision on Question as to Disqualifications of Members (Article 192):
 Clause (1) of 192 provides: “If any question arises as to whether a member of a House
of the Legislature of a State has become subject to any of the disqualifications
mentioned in Clause (1) of Article 191, the question shall be referred for the decision
of the Governor and his decision shall be final”.
 However, Clause (2) requires that the Governor, before giving any decision on any
such question, is required to obtain the opinion of the Election Commission and to act
according to such opinion.
 As to disqualifications on the ground of defection, Para 6 of the 10th Schedule
provides that the question shall be referred to the Presiding Officer of the House,
whose decision shall be final.
 Article 192 is applicable only to disqualifications to which a member becomes subject
after he is elected as such. As regards the disqualifications which arose long before
his election, neither the Governor nor the Election Commission, has jurisdiction under
Article 192. Such a matter can only be raised in an election petition before the Court.

2. SESSION OF STATE LEGISLATURE

Summoning of Sessions and Prorogation of the Houses (Article 174):
 Article 174 provides that the Governor shall, from time to time, summon House of the
State Legislature to meet at such time and place as he thinks Thus; it is the Governor,
who has power to summon the Sessions of the Bares of the State Legislature from
time to time.
 However, the exercise of power of the Governor is conditioned by the requirement
that six months must not intervene between the last sitting one Session of the House
and the date appointed for its first sitting in the next Session. There shall not,
therefore, be an interval of more than six month between two Sessions of a House.
 Clause (2) of Article 174 confers on the Governor the power of prorogation of the
Houses of Legislature. So, the Governor may prorogue from time to time the House
or either House of the State Legislature
 Prorogation means termination of the Session.
Dissolution of the Houses: As regards the Legislative Assembly, Article 174(2)(b)
empowers the Governor to dissolve the Assembly before the expiration of its term of five
years.
Dissolution of Legislative Assembly by the President: Article 174(2)(b) expressly vests
the power of dissolving the Assembly in the Governor, even if that had to be on the advice
of the State Council of Ministers. But, when the President assumes to himself the
Governmental powers by a Proclamation made under Article 356(1), the power of giving
advice would automatically be taken over by the President for the purpose of the
dissolution of the House. Therefore, dissolution by the President after the issuance of
the Proclamation would be as good as dissolution of the Assembly by the Governor
whose powers are taken over.
Officers of State Legislature
The Speaker and Deputy Speaker of the Legislative Assembly (Article 178-181):
 The presiding officer of the Legislative assembly is known as the Speaker.
 He is elected by the members of the assembly from amongst its own members.

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 The Assembly elects another member to be the Deputy Speaker. So often as the office
of Speaker or Deputy becomes vacant, the Assembly shall choose another member to
be Speaker or as the case may be.
 Article 179 provides that the Speaker or the Deputy Speaker shall vacate Speaker, his
office if he ceases to be a member of the Assembly. The Speaker may, at time by
writing under his hand addressed to the Deputy Speaker, resign his office. The Deputy
Speaker may resign his office at any time, by writing his hand addressed to the
Speaker.
 The Speaker or the Deputy Speaker, as the case may be, may be removed from his
office, by a resolution of the Assembly passed by a majority of all the then members
of the Assembly A resolution for this purpose can be moved only after a notice of
fourteen days has been given of the intention to move the resolution.
 While the office of the Speaker is vacant, the duties of the office shall be performed
by the Deputy Speaker. If the office of the Deputy Speaker is also vacant, the duties of
the office of the Speaker shall be performed, by such member of the Assembly as the
Governor may appoint for the purpose.
 During the absence of the Speaker from any sitting of the Assembly, the Deputy
Speaker, or if he is also absent, such person as may be determined by the rules of
procedure of the Assembly, or if no such person is present, such other person as may
be determined by the Assembly, shall act as Speaker.
Chairman and Deputy Chairman of Legislative Council (Articles 182 to 185):
 The Presiding Officer of the Legislative Council of a State is known as Chairman. Article
182 provides that the Legislative Council elects its Chairman and Deputy Chairman
from amongst its own members. So often as the office of Chairman or Deputy
Chairman becomes vacant, the Council shall choose another member of the Council
to be the Chairman or Deputy Chairman, as the case may be.
 The Chairman or Deputy Chairman shall vacate his office, if he ceases to be a member
of the Council. The Chairman may resign his office, at any time, by writing addressed
to the Deputy Chairman and the Deputy Chairman may resign by addressing his
resignation in writing to the Chairman.
 The Chairman or the Deputy Chairman may be removed from his office by a resolution
of the Council passed by a majority of all the then members of the Council. No such
resolution shall be moved unless at least 14 days’ notice has been given of the
intention to move the resolution.
 When the office of the Chairman is vacant, the duties of the office are performed by
the Deputy Chairman and if his office is also vacant, the duties of the office of the
Chairman are performed by such member of the Council as the Governor may appoint
for the purpose.
 During the absence of the Chairman from a sitting of Deputy Chairman or if he is also
absent, such person as may be determined by the rules of procedure of the Council,
or, if no such person is present, such other person as may be determined by the
Council shall act as Chairman.
 While any resolution for the removal of either of the Chairman or the Deputy
Chairman is under consideration, he shall not preside over the sitting of the Council.
He may, however, be present in the House. He shall have the right to speak in and
otherwise to take part in the proceedings. He shall have the right to vote on such
resolution only in the first instance.
 As discussed above, the Speaker can be removed from his office by a resolution of the
Assembly passed by a majority of all the then members of the Assembly. Article 181

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provides that the Speaker shall not preside when such a resolution is under
consideration of the Assembly. But, he can be present in the House and take part in
the proceedings when such resolution is under consideration. He can vote only in the
first instance on such resolution. Similarly, the Deputy Speaker shall not preside when
a resolution for his removal from office is under consideration of the Assembly.
Though, he can be present in the House and can take part in the proceedings when
such resolution is under consideration and can vote on such resolution only in the
first instance.
The position, powers and duties of the Speaker of the Legislative Assembly of a State
Legislature are the same as those of the Speaker of the Lok Sabha.
Salaries and Allowances of the Speaker etc. (Article 186):
 Article 186 lays down that the salaries and allowances of the Speaker, the Deputy
Speaker, of the Legislative Assembly and the Chairman and the Deputy Chairman of
the Legislative Council are fixed by the Legislature of the State by law. Initially the
provision was contained in Second Schedule to the Constitution.
 The salaries and allowances of the Speaker, the Deputy Speaker, the Chairman and
the Deputy Chairman are charged upon the Consolidated Fund of the State.
Secretariat of State Legislature (Article 187): Article 187(1) provides that each House
of the Legislature of a State shall have a separate Secretarial Staff. However, in the case
of the State Legislature having a Legislative Council there may be created posts common
to both Houses of such Legislature.
 The recruitment and conditions of service of persons appointed to the Secretarial Staff
of the House or Houses of the Legislature may be regulated by the Legislature of the
State, by law.
 Until such law is made, Governor in consultation with the speaker of the assembly or
the chairman of the council may make rules.

3. LEGISLATIVE PROCEDURE OF STATE

The procedure of legislation followed in the State Legislature of a state is broadly similar
to that in Parliament except:
Restrictions on Powers of Legislative Council-Deadlock the Houses (Article 197):
Where the Legislature of a State has a Legislative Council deadlock in the two Houses
may result on a non-Money Bill.
In the case of Union Parliament, Article 108 prescribes the procedure for resolving a
deadlock in the two Houses of Parliament. For this, a joint sitting of the two Houses may
be summoned by the President.
There is no provision for holding a joint sitting of the Houses of the State Legislature for
resolving a deadlock, a conflict in two houses on money bill.
Strictly speaking there cannot be a deadlock in the two Houses of the State Legislature.
State Legislative Council does not enjoy equal powers in respect of passing money Bill as
exercised by the Rajya Sabha in the case of a Union bill.
The power to resolve the conflict in the two Houses is vested with the Legislative
Assembly itself. In regard to non-money Bill which originates in the Legislative
Assembly and having been passed by it, transmitted to the Legislative Council.
Article 197 provides the following cases of conflict in the two Houses of State
Legislature:
1. Bill having been passed by the Legislative Assembly is rejected by the Legislative
Council

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2. Bill having been passed by the Legislative Assembly is passed by the Legislative
Council with amendments the Legislative Assembly does not accept all or any such
amendments recommended by the Legislative Council
3. Bill having been passed by the Legislative Assembly and sent to the Council, is not
returned by the Legislative Council within three months of its receipt in the Council.
In all the above three events, Article 197 provides that the Legislative Assembly may
reconsider that Bill in the same or in any subsequent Session. If the Assembly passes the
Bill again with or without the amendments suggested or agreed to by the Legislative
Council, then the Bill shall be transmitted to the Legislative Council for the second time.
Clause (2) of Article 197 declares that the Bill having been passed for the second
time by the Legislative Assembly and transmitted to the Legislative Council shall
be deemed to have been passed by both the Houses of the State Legislature in the
form in which it was passed by the Assembly for the second time with such
amendments, if any, as have been made or suggested by the Council and agreed to
by the Legislative Assembly:
1. Even if the Bill is rejected by the Council
2. If the Bill is not returned by the Council within one month of its receipt therein; or
3. If the Bill is passed by the Council with amendments to which the Legislative Assembly
does not agree.
 It follows that in respect to a non-money Bill, having been passed by the Legislative
Assembly, the Legislative Council does not have any power except to delay the passing
of the Bill for four months.
 A Bill originated in Council, i.e., an Ordinary Bill or a Bill Involving Expenditure from
the Consolidated Fund of the State, having been passed if rejected by the Legislative
Assembly, shall lapse.
Procedure in Financial Matters (Articles 202 To 207)
In financial matters, the procedure starts with the presentation of the Legislature of the
State. It completes with the passing of the Annual appropriation act. All the other
procedures are similar to the budget of Union.

GENERAL PROCEDURE
Rules of Procedure (Article 208):
 Clause (1) of article 208 confers power on each house of the state legislature subject
to the provisions of the Constitution, to make rules for regulating its procedure and
the conduct of its business.
 Until rules are made under Clause (1), the rules and standing Orders to force
immediately before the commencement of the Constitution, shall have effect, but
subject to modifications and adaptations made by the Speaker of or the Chairman of
the Legislative Council, as the case may be.
 Clause (3) of Article 208 provides that where a State has a Legislative Council, the rules
as to the procedure, with respect to communications ween the two Houses, may be
made by the Governor, after consultation with the Speaker of the Assembly and the
Chairman of the Legislative council.
Rules of Procedure in Financial Matters (Article 209): Article 209 confers power on
the Legislature of the State to regulate by law, the procedure of and the conduct of
business in the House or Houses fits State Legislature in relation to financial matters.

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Language to be used in the Legislature (Article 210):

 Clause (1) of Article 210 provides that the business in the Legislature of a State shall
be transacted in the official language or languages of the State or in Hindi or in English.
It is, however, subjected to the provisions of Article 348 relating to language of the
Supreme Court and the High Court.
 However, the Presiding Officer of a House may permit any member, who cannot
adequately express himself in any such languages, to address the House in his mother
tongue.
Restriction on Discussion in the Legislature (Article 211): Article 211 provides that no
discussion shall take place in the Legislature of a State with respect to the conduct of any
Judge of the Supreme Court or of a High Court in the discharge of his duties. This
provision incorporated with a view to secure independence of judiciary.
Irregularity of Procedure in the Legislature (Article 212):
 Clause (1) of Article 212 declares that the validity of any proceedings in the Legislature
of a State shall not be called in question on the ground of any alleged irregularity of
procedure.
 Clause (2) of this Article confers immunity on the Officers and members of the
Legislature in whom powers are vested by or under the Constitution for regulating the
procedure or the conduct of business, or for maintaining order in the Legislature. They
shall not be subject to the jurisdiction of any court in respect of the exercise by them
of those powers.
 However, the High Court, in the exercise of its supervisory jurisdiction under Article
227, might interfere in case of breach of Fundamental Rights of persons, by the
Members or Speaker of the House.

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18
Chapter FEDERALISM
TOPICS TO BE COVERED
1. Legislative Relations
2. Administrative Relations
3. Water Dispute
4. Financial Relations

1. LEGISLATIVE RELATIONS
LEGISLATIVE RELATION (ARTICLE 245-255, PART V)
Constitution of India makes a two-fold distribution of legislative power:
 With respect to territorial jurisdiction.
 Subject matter of legislation.
With respect to territorial jurisdiction:
 Article 245 (1) provides: “Subject to the provisions of this Constitution, Parliament
may make laws for the whole part of the territory of India, and the Legislature of a
State may make the whole or any part of the State.”
Analysis
Article 245 (1) provides that Legislature of a State may make laws for whole or any part
of State. It implies that State law would if it is given extra-territorial operation, i.e., it is
applied to subjects whole dets located outside the territory of that State. However, many
times State laws having extra-territorial operation have been held valid. It is the
application of the “Doctrine of Territorial Nexus”.

DOCTRINE OF TERRITORIAL NEXUS

Doctrine can be invoked in the following circumstances:
 If extra-territorial operations in a state exists.
 If there is legitimate and adequate nexus between the state and the object,
 If the object is located outside the territorial limits of the state, then it must have some
territorial connection with the state.

Salient Features of the Doctrine of Territorial Nexus:

Parliament is empowered to make and enact laws within India’s jurisdiction i.e within
the whole of territory of India and to extra-territorial issues which have appropriate
“nexus” with the Indian Territory as well.
Doctrine is also applicable to the states. In statutes of taxing, the sale or purchase of
goods is not necessary to be taken place within the territory of the state.
Legitimately apply for territorial nexus, the object doesn’t need to be physically located
within the territory of the state; however, territorial nexus with the state must be
sufficient.

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Tax can be levied by state on a property, person or object not only within its territorial
limits but also having sufficient territorial connection with it. The doctrine governs the
taxation of non-residents in India.

Parliamentary Law having Extra Territorial Legislation:

 Clause (2) of Article 245 declares that Union Parliament may make a law having extra-
territorial operation and such a law would not be the ground of having extra-territorial
operation.
In Sondur Gopal vs. Sondur Rajini, question before Supreme Court related to application
of Hindu Marriage Act, to Hindus, residing out of India but having domicile in India. Court
held though the parties, having domicile of origin in India, they would continue to be
governed by the H.M. Act, 1955.

DISTRIBUTION OF SUBJECT MATTER OF LEGISLATION (ARTICLE 246)

 Provides that the Union Parliament may make laws with respect to the matters
contained in Union List and a State Legislature may make laws with respect to the
matters contained in the State List.
 As regards to matters contained in the Concurrent List, both Union Parliament and
State Legislatures are vested with concurrent powers of legislation.
 In case of conflict between central and State law on the subject enumerated in the
Concurrent List, the Central law prevails over the state law. But there is an exception.
If the state law has been reserved for the consideration of the president and has
received his assent, then the state law prevails in that state. But it would still be
competent for the Parliament to override such a law by subsequently making a law on
the same matter.
 Entries in the Lists, are themselves, not powers of the legislation, but fields legislation.
While the legislative power in driven from Article 245, the entries in the Seventh
Schedule only demarcate the legislative fields of the respective legislatures and do not
confer legislative power as such.

CONFLICT BETWEEN CENTRE AND STATE

The distribution of subject-matter cannot be claimed to be scientifically perfect
and there happens to be overlapping between the subjects enumerated in the
three lists. In such cases, question arises with regard to the constitutionality of the
enactment which lies within the domain of judiciary.
 Presumption of Constitutionality: A cardinal rule of interpretation is that there shall
always be a presumption of constitutionality in favour of a Statute. The Court should
try to sustain its validity to the extent possible. It would strike down the enactment
only when it is not possible to sustain it. Further that the burden of proof is upon the
shoulders of petitioners who challenges the law.
 Doctrine of Pith and Substance: The Doctrine of Pith and Substance states that if
the substance of legislation falls within a legislature’s lawful power, the legislation
does not become unconstitutional just because it impacts an issue beyond its area of
authority. The Court uses it to determine whether the claimed intrusion is just
incidental or significant. Thus, the ‘pith and substance’ concept holds that the
challenged statute is fundamentally within the legislative competence of the
legislature that enacted it but only incidentally encroaches on the legislative field of
another legislature.
 Objective behind the Doctrine: The objective behind the creation of this doctrine
was to prevent absolute intrusion of legislative powers by evaluating the ‘content’ of

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enactment and then determining which list the specific subject matter fell within. As a
result, this doctrine is applied to establish the legislative competency of a given law by
examining the ‘content’ of that statute. Examining an enactment’s ‘substance’ might
lead to one of two outcomes:
 The enactment’s substance corresponds to the subject matter given to the legislature
for the purpose of enacting laws: This will constitute the enactment totally lawful.
 Enactment includes subject matter that is outside the jurisdiction of the federal or
state legislatures: This may result in a partial or accidental incursion of legislative
powers, which may or may not render the entire statute invalid and void. Certain
subject topics enumerated in the three lists indicated in the Seventh Schedule might
overlap at times, therefore incidental encroachments are permitted to some extent
when evaluating legislative competency.
Doctrine of Colourable Legislation:
 Doctrine of Colourable Legislation means that if a legislature lacks the jurisdiction to
enact laws on a specific subject directly, it cannot make laws on it indirectly. In simple
words, the doctrine checks if a law has been enacted on a subject indirectly when it is
barred to legislate on that topic directly
 Article 246 of the Indian Constitution deals with subject matter legislation, which
refers to who has the authority to create laws in relation to particular subject matter.
 However, the legislative body occasionally passes laws that are outside of its purview.
This signifies it has overstepped its bounds and done something indirectly that could
not have been done directly.
 This is known as a colourable legislation of legislative power or establishing laws
indirectly while doing so directly is illegal.
 As a result, the theory of colourable legislation was created to prevent legislative
authorities from abusing their powers.
 For example, the constitution provides reservation to only social and educationally
backward communities.
 So any attempt to declare the socially forward communities as backward communities
and extend the reservation becomes coloured legislation.
 Doctrine of Harmonious Construction: The doctrine of harmonious construction is
followed when there arises an inconsistency between two or more statutes or sections
of a particular statute. The fundamental principle behind this doctrine is, a statute has
a legal purpose and should be read in its totality and after that, the interpretation that
is consistent with all the provisions of that statute should be used.
In Commissioner of Income Tax vs Hindustan Bulk carriers, Court laid down the
guidelines as follows:
 The courts should try and avoid a conflict of seemingly disputing provisions and effort
must be made to construe the disputing provisions so as to harmonize them.
 The provision of one section cannot be used to overthrow the provision covered in
another section unless the court is unable to find a way to settle their differences
despite all its effort.
 In the situation when the court finds it impossible to entirely reconcile the differences
in inconsistent provisions, the courts must interpret them such that effect is given to
both the provisions as far as possible.
 Courts must also take into account that the interpretation that makes one provision
redundant and useless is against the essence of harmonious construction.

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 Harmonizing two contradicting provisions means not to destroy any statutory

provision or to render it ineffective.

RESIDUARY POWER OF LEGISLATION (ARTICLE 248)

Article 248 of the Indian Constitution deals with the residuary powers of
legislation. It further states that:
 Parliament has exclusive power to make any law with respect to any matter not
enumerated in the Concurrent List or State List.
 Such power shall include the power of making any law imposing a tax not mentioned
in either of those Lists.
In Naga People’s Movement of Human Rights vs. Union of India that Supreme Court
ruled that Parliament was competent to enact the Armed Forces (Special Powers) Act,
1958 in the exercise of the legislative power conferred on it under Entry 2 of List I and
Article 248 read with Entry of list 1.
Parliament Power to legislate with respect to matter contained in State List

1. In National Interest (Article 249): Article 249 provides that if the Rajya Sabha has
passed a resolution by majority of not less than two-thirds of the members present and
voting declaring that it is necessary or expedient in the national interest that Parliament
should make laws with respect to any matter enumerated in the List specified in the
resolution, it shall be lawful for Parliament to make for the whole or any part of the
territory of India.
 Parliament may make laws under Article 249 (1) only with respect to the State matters
as are specified in the resolution passed by the Council of States.
 Such a resolution passed under Clause (1) normally lasts for one year, may be
renewed as many times as deemed necessary. Every time a resolution is passed, it
shall remain in force for one year only.
 Laws passed by Parliament under a resolution passed under Clause (1) Article 249,
would cease to have effect on the expiration of a period of six months after the
resolution has ceased to operate.
The Rajya Sabha is authorised to pass the resolution under Article 249 because of it is
said to be a representative House, containing representatives of the States who are
elected by the members of the State legislative Assemblies.
Article 249 has been used a few times. Ex: The Supply and Prices of Goods act 1952.
2. During Proclamation of National Emergency (Article 250): Article 250 (1) provides
that “Parliament shall, while a proclamation Emergency is in operation, have power to
make laws for the whole or any part of the territory of India with respect to any of the
matters enumerated in the State List” The Proclamation of Emergency referred to in this
Article must be proclamation which may be made under Article 352. When a
proclamation of Emergency is in operation, Parliament enact laws with respect to all the
three Legislative Lists in Schedule VII.

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 It can make laws conferring powers and imposing duties on the Union and Officers in
respect of all the Lists.”
 Laws made under Article 250 (1), however, would cease to have effect on the
expiration of a period of six months after the Proclamation has ceased to operate.
 Article 251 clarifies that Articles 249 and 250 do not restrict the of the Legislature of a
State to make laws with respect to matters with respect to which Parliament is
empowered to legislate under these Article Thus, the State Legislatures may legislate
with respect to such matter However, in case the two laws, i.e., Parliamentary law and
State law, a repugnant to each other, then, it is the law made by Parliament which will
prevail and the State law shall be void to the extent of the repugnancy.
3. Legislate with consent of State (Article 252): Article 252 (1) provides that when
Houses of Legislatures of two or more States have passed resolutions to the effect that
it shall be desirable that any of the matters in the State List should be regulated in such
States by Parliament by law, it shall be lawful for Parliament to pass an Act for regulating
that matter.
 The resolution must be passed by the Houses of at least two State Legislatures before
Parliament gets empowered to legislate under Article 252(1).
 The resolution may be passed by the simple majority of members present and voting
in a House.
 An Act so passed by Parliament shall have operation within the territories of only such
States, the Legislatures of which have passed the resolution.
 The Estate Duty Act, 1952, the Prize Competitions Act, 1955, the Urban Ceiling &
Regulation) Act, 1976, and the Transplantation of Human organs Act, 1994, are some
of the laws passed by Parliament under Article 252 (1).
Legislate with respect to giving effect to International agreement (Article 253):
Parliament has power to make any law for the any part of the territory of India for
implementing any treaty, agreement or convention with any other country or countries
or any decision that any International Conference, Association or other body”.
Article 253 exhibits that in implementing a treaty, agreement or convention with another
country, the limitations imposed by Articles 245 and 246 lifted and the entire field of
legislation, in that respect, is open to Union Parliament.
5. Parliament’s Power to Legislate Under Article 356: Article 356 provides that after
the President has declared that the Government in a State cannot be carried on in
accordance with the provision of the Constitution, he may by Proclamation further
declare that the power of the Legislature of that State shall be exercisable by or under
the authority of Parliament. Having been so authorised, Parliament may make laws with
respect any or all the matters contained in the State List.
Laws so made by Parliament would be operative in that State only.
 Such laws would continue in force until amended or repealed by appropriate
Legislature, i.e., either by Parliament during the operation of Proclamation made
under Article 356 or by the State Legislature after such Proclamation ceases to operate
Centre’s control over state legislation in addition to the power of Parliament to
legislate directly with respect to matters in State List discussed under the
foregoing Articles, the Constitution provides for control by the Centre over
legislation enacted by the States. These provisions are discussed below-
 Article 31A provides immunity to laws made for acquisition of Zamindaries or the
abolition of the Permanent Settlement. The immunity of this Article will not be
available to a State Law unless it having been reserved for the consideration of the

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President, has received his assent. The object is to ensure uniformity in laws providing
for agrarian reforms.
 Article 200 empowers the Governor of the State to reserve any Bill passed by the
Legislature of the State, for the consideration of the President. The Bill reserved for
the consideration of the President would become law only if assented to by the
President under Article 201.
 Article 288 (2) authorises a State to tax in respect of water or electricity stored,
generated, consumed, distributed or sold by any authority established by law made
by Parliament. A Bill for the purpose, having been passed by the State Legislature is
required to be reserved for the consideration of the President and would become law
only if assented to by him.

CURRENT CHALLENGES IN LEGISLATIVE FIELD

Wealth Tax Issue: In Union of India vs H S Dhillon the question involved was whether
Parliament had legislative competence to pass the wealth Tax act imposing wealth-tax
on the assets of a person in agricultural land. The court held that in case of a Central
Legislation the proper test was to inquire whether the matter fell in the State List or
Concurrent List. Once it is found that the matter does not fall under the State List,
Parliament will be competent to Legislate on it under its residuary power.
2. Dam safety Act: Dams in India are constructed and maintained by the states. Some
dams are also maintained by autonomous bodies. The Centre came up with the Dam
Safety act against the backdrop of over 5200 large dams in India.
 The dam security is an issue of concern because of the lack of legal and institutional
architecture. Unsafe dams are a hazard and they may break and also cause disasters.
This is the major reason for the Dam Safety Act to be brought about.
 Entry 17 of the State List provides for the States to make laws with regard to water
supplies, drainage and embankments, water storage and water power subject to Entry
56, which is the Union List. According to Entry 56, the Parliament can make laws on
regulation of inter-State rivers and valleys. However, it does not have power to
regulate intra-State water, rivers and valleys.
 Entire Act does not provide representation to the owner of the dam in the National
Committee or the State Dam Organisation.
3. Use of Residuary power when other options were available during COVID :-
Disaster management act has been enacted in exercise of its residuary powers of
legislation under Article 248 read with Entry 97 of List I. Instead of resorting to the
Epidemic Diseases Act which gives powers to the States, the Centre has applied the
Disaster Management Act. Under Epidemic disease act, it is the State governments which
have the prerogative to take appropriate measures for arresting the outbreak or spread
of a contagious or infectious disease in their respective States.
4. Farm bill: The word “agriculture” finds mention 12 times in the three lists. In List I, it
appears in entries 82, 86, 87, and 88; in List II under entries 14, 18, 30, 46, 47 and 48; and
under entries 6 and 41 of List III.
 It would be observed that under List I in entries 82, 86, 87 and 88 (where the word
“agriculture” appear), parliament’s law-making power has been circumscribed by the
words “other than” agriculture income (entry 82) or “exclusive of” agricultural land
(entry 86), or “other than” agricultural land (entries 87 and 88). This means the Union
List does not empower the parliament to enact any law on agriculture.
Parliament lacks legislative competence under Articles 245 and 246 to enact any law
pertaining to “agriculture”, except through the gateway of entry 41 of List III (Concurrent

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List). This entry, however, relates only to agricultural land that is evacuee property, which
is not the case in respect of three farm laws.
5. Electricity amendment bill 2020:
 State Governments are concerned that certain provisions of the Bill encroach on their
rights. Electricity is a subject under the Concurrent List (Item 38, List III (Concurrent) of
Seventh Schedule), so the Union Government is well within its rights to enact a law.
However, some concerns of the State Government are valid:
 Power to CERC to grant license for distribution of electricity in more than one State.
SERCs have better understanding of ground conditions.
 The Union Government will specify the minimum percentage of RPOs which was
earlier decided by the SERCs.
The Bill makes changes in the composition of the committee for selection of
Chairperson/members of the SERCs. The Committee will now have a nominee of the
Union Government.

AMENDMENT IN 7TH SCHEDULE

Finance commission has called for revisiting the 7th schedule of constitution. The
Puncchi commission in 2010 has also recommended that the Union should only
transfer those subjects into the concurrent list which were central to achieving
demonstrable national interest.
Need of Amendment:
 Changes both in terms of political stability, technology and emerging new
challenges of national priority like climate change.
 The dealings with the recent COVID pandemic have highlighted the issues with the
distribution of subjects between the center and states.
 The needs of governance are not static and are bound to change over time.
Removing Entries that are outlived now: Entry 27, List III: Relief and rehabilitation
of persons displaced from their original place of residence by reason of the setting
up of the Dominions of India and Pakistan: The entry has outlived the reason for its
inclusion, i.e., the partition of India in 1947.
 Adding new entries like Disaster management, Consumer protection,
Environmental protection
 Rising court cases and Court is solving the issue via application of different
doctrines like Doctrine of Pith and Substance, Doctrine of Colorable legislation.

2. ADMINISTRATIVE RELATIONS
ADMINISTRATIVE RELATION (ARTICLE 256-263, PART V)
The Scheme of allocating the administrative responsibilities is drawn for the
purpose of:
1. The administration of law
2. Achieving co-ordination, the Centre, and the States.
3. The settlement of disputes between Centre and States and between the States
4. For the Purposes of Article 355
The Constitution has adopted the following techniques of coordination between
the Centre and the States-

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Centre-State:
 Inter-governmental delegation of administrative powers
 Centre’s directions to the States
 All-India Services
 Inter-State Council.

INTER-GOVERNMENTAL DELEGATION OF ADMINISTRATIVE POWERS

Delegation of powers may be done either by agreement or by legislation. While the
Centre may adopt both methods, a state can delegate administrative powers on
the Centre only under an agreement with Centre.

DELEGATION BY THE CENTRE [ARTICLE 258 (1)]:

By Agreement: Article 258 (1) provides that the President may, with the consent of the
Government of a State, entrust either conditionally or unconditionally, that Government
or to its Officers, functions in relation to any matter which the executive power of the
Union extends.
 The Centre may impose conditions and what conditions are to be imposed, is for the
Centre to decide.
 Delegation under Clause (1) of Article 258 may be specific, i.e., to One or more States
named therein, or it may be general, i.e., to all the States general.
 Only an executive function can be delegated, not a quasi-Judicial function.
By Legislation: Clause (2) of Article 258 empowers the Parliament to make laws
authorising the delegation by the Central Government of its powers and States or officers
and authorities in the States. Such a law may relate to a matter with respect to which the
Legislature of the State has no power to make laws. Such matters may be those
enumerated in List I and List III of the Seventh Schedule to the Constitution.
 A law made by Parliament under Clause (2) of Article 258 may either confer powers or
impose duties on the States; or it may authorise the Government to delegate its
powers to the States or officers or authorities.

ENTRUSTMENT OF STATE POWER TO THE CENTRE (ARTICLE 258A)

Governor of a State may, with the consent of the Governor of India, entrust either
conditionally or unconditionally to that Government or to its officers’ functions in relation
to any matter to which the executive power of the State extends.

CENTRE’S DIRECTIONS TO THE STATES (ARTICLE 256 & 257)

Obligation of State: Article 256 can be divided in two parts: Firstly, it lays down that
executive powers of State are to be exercised in such a manner that it complies with the
laws made by the Parliament or any other existing laws which are applicable in the State.
Secondly, it states that executive power of the Union includes in its ambit such directions
that are given to State by Central Government, which it deems necessary for the purpose.
 State of Rajasthan vs UOI: The Apex Court held that the issuance of directions to the
State government by the Centre under Article 256 is justified if the Union Government
is of the opinion that the manner in which the executive power of the State is exercised
may be in contravention to the enforcement of Central Laws.
 Swaraj Abhiyan vs UOI: The Apex Court drew attention to this provision, calling it a
‘forgotten provision’. This is because of the seldom usage of this provision since the
Constitution came into force.

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CONTROL OF THE UNION OVER STATES IN CERTAIN CASES:

Article 257(1) provides that the exercise of the executive powers of the State should be
done in such a manner that it does not hamper or prejudice the exercise of the executive
powers of the Centre. Further, the second part of this clause is like that of Article 256. It
lays down that the Centre can issue directions to the State Governments for purposes
deemed necessary.
 Article 257(2) provides that the executive power of the Union to issue directions to the
States shall also extend to the matters of construction and maintenance of means of
communication declared to be of national or military importance. Although
communication are a State subject under Entry 13, List II, Schedule VII of the
Constitution – the Union has been empowered to issue directions.
Provision states that nothing in this particular provision will be considered as
restricting the power of the Parliament to:
1. Declare certain highways or waterways as national highways or waterways.
2. Construct and maintain means of communication as a part of its functions with
reference to naval, military and air force purposes.
 Article 257(3) provides that the executive power of the Union to issue directions to the
States shall also extend to the measures required to be taken for the protection of the
railways within a particular State.
 Article 257(4) provides that for the purpose of compliance to the directions under
clause (2) or clause (3), the States incur excess costs, which would not have occurred
in the discharge of the normal duties of the State in the absence of such directions,
then these costs shall be paid by the Government of India such sum as may be agreed.
If there is a default of agreement, the sum of the extra costs so incurred by the State
will be determined by an arbitrator appointed by the Chief Justice of India.

ALL-INDIA SERVICES (ARTICLE 312)

Article 312 provides that an All-India Service can be created only if the Council of
State declares by a resolution supported by not less than a two-thirds majority
that it is necessary in the national interest to create one or more such All-India
Services.
Such a resolution should be considered as tantamount to an authority given by the
States. When once such a resolution is passed, Parliament is competent to
constitute such an All-India Service and lay down details connected with it.
All India Services, by their very nature, are instruments of national integration and
national unity. They ensure the maintenance of common standards all over the country
in certain vital fields of administration.
They facilitate the existence of a hard core of officials in every State who, because of their
membership in a service which falls, within the jurisdiction of the Centre, feel freer and
more independent to act with a national outlook and keeping in view the national
interests.

INTER-STATE COUNCIL (ARTICLE 263)

Article 263 says establishment of an Inter-State council which may be charged with
the duty of:
 Inquiring into and advising upon disputes which may have arisen between States.
 Investigating and discussing subjects in which some or all of the States, or the Union
and one or more of the States, have a common interest.

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 Making recommendations upon any subject and interest, or recommendations for the
better co-ordination of policy and action with respect to that subject.
Composition of Inter State council:
The Council consists of:
 Prime Minister – Chairman
 Chief Ministers of all States – Members
 Chief Ministers of Union Territories having a Legislative Assembly and Administrators
of UTs not having a Legislative Assembly – Members
 Six Ministers of Cabinet rank in the Union Council of Ministers to be nominated by the
Prime Minister – Members
Procedure of the Council: Presidential Order provides that the Council, in the
conduct of business, shall observe the following procedure –
1. The Council shall adopt guidelines for identifying and issues to be brought before it.
2. The Council may meet at least thrice in every year, at suitable time and place, as the
Chairman decides.
3. The meetings of the Council shall be held in camera.
4. The members (including the Chairman) shall form the Quora a meeting of the Council.
5. All questions at a meeting of the Council shall be decided by consensus.
6. The members (including the Chairman) shall form the Quora a meeting of the Council.
7. All questions at a meeting of the Council shall be decided by consensus.
Eleventh Meeting of the Inter-State Council discussed the following agenda items:
 Consideration of the Recommendations of the Punchhi Commission on Centre-State
Relations
 Use of Aadhaar as an identifier and use of DBT for providing Subsidies, Benefits and
Public Services
 Improving Quality of School Education with focus on improving learning outcomes,
incentivising better performance, etc
 Internal Security with focus on intelligence sharing and coordination for combating
terrorism / insurgency, police reforms and police modernisation.

3. WATER DISPUTE
CONSTITUTIONAL PROVISIONS
Entry 17 of State List deals with water i.e., water supply, irrigation, canal, drainage,
embankments, water storage and waterpower.
Entry 56 of Union List empowers the Union Government for the regulation and
development of inter-state rivers and river valleys to the extent declared by Parliament
to be expedient in the public interest.
According to Article 262, in case of disputes relating to waters:
Clause (1) Parliament may by law provide for the adjudication of any dispute or complaint
with respect to the use, distribution or control of the waters of, or in, any inter-State River
or river valley.
Two laws have been passed by Parliament:
 River Board act 1956:

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o Although the Rivers Act was passed in 1956, no river basin was formed under this
Act.
o The Central Government may, on a request received in this behalf from a State
Government or otherwise, by notification in the Official Gazette, establish a River
Board for advising the Governments.
o The Board shall consist of a Chairman and such other members as the Central
Government thinks fit to appoint.
 Inter State Water Dispute Act 1956:
o The Tribunal shall consist of a Chairman and two other members nominated in this
behalf by the Chief Justice of India from among persons who at the time of such
nomination are Judges of the Supreme Court or of a High Court.
o Clause (2) Parliament may, by law provide that neither the Supreme Court nor any
other
o court shall exercise jurisdiction in respect of any such dispute or complaint as
mentioned above.

REASON FOR WATER DISPUTE

We are having more than 80% of Indian rivers are inter-state rivers. According to Central
Water Commission, there are 125 inter-state water agreements in India. Many of these
agreements are more than 100 years old and had been executed without seriously
considering socio-economic, political, and geographical factors. New issue raised for
revision of KWDT Award after Telangana.
The growing nexus between water and politics have transformed the disputes into turfs
of vote bank politics. This politicisation has also led to increasing defiance by states,
extended litigations and subversion of resolution mechanisms. For example, the Punjab
government played truant in the case of the Ravi-Beas tribunal.
Composition of the tribunal is not multidisciplinary, and it consists of persons only from
judiciary.
Absence of authoritative water data that is acceptable to all parties currently makes it
difficult to even set up a baseline for adjudication.
Protracted proceedings and extreme delays in dispute resolution. For ex, in Godavari
water dispute, the request was made in 1962, but the tribunal was constituted in 1968
and the award was given in 1979 which was published in the Gazette in 1980.The Cauvery
Water Disputes Tribunal, constituted in 1990, gave its final award in 2007.
Opacity in the institutional framework and guidelines that define these proceedings; and
ensuring compliance.

CASE STUDY
CAUVERY WATER DISPUTE:
In 1970, Tamil Nādu Government asked central Government to constitute Tribunal and
in 1990, the tribunal was set up on the directions of Supreme Court. The Cauvery Water
Disputes Tribunal passed an Interim order in 1991 directing the State of Karnataka to
release Water from its reservoirs. Karnataka government refused to obey the interim
award.
After 16 years of hearing and an interim order, the Tribunal announced its final order in
2007 allocating 419 tmcft water to Tamil Nadu and 270 tmcft to Karnataka.
Karnataka has not accepted the order and refused to release the water to Tamil Nadu.
In 2013, Contempt of Court was issued against Karnataka.

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In 2016, a petition was filed in Supreme Court to seeking the release of water by
Karnataka as per the guidelines of the tribunal. When Supreme Court ordered Karnataka
to release water, Kannada people protested the decision saying they do not have enough
water.

SUTLEJ YAMUNA LINK:

After the bifurcation of Haryana, Punjab refused to share waters with Haryana stating it
was against the riparian principle which dictates that the water of a river belongs only to
the State and country or States and countries through which the river in question flows.
However in 1981, Both states mutually agreed for the re-allocation of water. And in 1982,
construction of canal was started. But owing to agitation in villages of Punjab, the work
was stopped.
Haryana moved the Supreme court for completion of canal.
But contrary to the SC Direction, Punjab Assembly passed the Punjab Termination of
Agreements Act, terminating its water-sharing agreements and thus jeopardising the
construction of SYL in Punjab.
SC started hearings into a presidential reference under Article 143 to decide on the
legality of the 2004 Act and declared that Punjab backed out of its promise to share the
waters of rivers. Thus, the act was termed constitutionally invalid.
SC in 2020 directed the Chief Ministers of both states to negotiate and settle the SYL
canal issue at the highest political level to be mediated by the Centre.

KRISHNA WATER DISPUTE:

Andhra Pradesh has since asked that Telangana be included as a separate party at the
KWDT and that the allocation of Krishna waters be reworked among four states, instead
of three. It is relying on Section 89 of The Andhra Pradesh State Reorganisation Act, 2014.
Opposition by Karnataka and Maharashtra: – Maharashtra and Karnataka said:
“Telangana was created following bifurcation of Andhra Pradesh. Therefore, allocation of
water should be from Andhra Pradesh’s share which was approved by the tribunal.”
Steps Taken to address the Issue:
 Inter-State River Water Disputes (Amendment) Bill, 2019 was introduced in in
2019.
 Disputes Resolution Committee (DRC): Under the Bill, when a state puts in a request
regarding any water dispute, the central government will set up a Disputes Resolution
Committee (DRC), to resolve the dispute amicably.
 DRC will comprise of a chairperson and experts with at least 15 years of experience in
relevant sectors, to be nominated by the central government. It will also comprise one
member from each state (at Joint Secretary Level), who are party to the dispute, to be
nominated by the concerned state government.
 DRC will seek to resolve the dispute through negotiations, within one year (extendable
by six months), and submit its report to the central government. If a dispute cannot
be settled by the DRC, the central government will refer it to the Inter-State River
Water Disputes Tribunal. Such referral must be made within three months from the
receipt of the report from the DRC.
 Tribunal: The central government will set up an Inter-State River Water Disputes
Tribunal, for the adjudication of water disputes. This Tribunal can have multiple
benches. All existing Tribunals will be dissolved, and the water disputes pending
adjudication before such existing Tribunals will be transferred to the new Tribunal.

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 Time frames: Under the Act, the Tribunal must give its decision within three years,
which may be extended by two years. Under the Bill, the proposed Tribunal must give
its decision on the dispute within two years, which may be extended by another year.
 Under the Act, if the matter is again referred to the Tribunal by a state for further
consideration, the Tribunal must submit its report to the central government within a
period of one year. This period can be extended by the central government. The Bill
amends this to specify that such extension may be up to a maximum of six months.
Decision of the Tribunal: Under the Act, the decision of the Tribunal must be published
by the central government in the official gazette. This decision has the same force as
that of an order of the Supreme Court. The Bill removes the requirement of such
publication. It adds that the decision of the Bench of the Tribunal will be final and
binding on the parties involved in the dispute. The Act provided that the central
government may make a scheme to give effect to the decision of the Tribunal. The Bill
is making it mandatory for the central government to make such scheme.
 Data bank: Under the Act, the central government maintains a data bank and
information system at the national level for each river basin. The Bill provides that the
central government will appoint or authorise an agency to maintain such data bank.

RIVER BASIN MANAGEMENT BILL:

Proposes optimum development of inter-State rivers by facilitating inter-State
coordination ensuring scientific planning of land and water resources taking basin/sub-
basin as unit with unified perspectives of water in all its forms (including soil moisture,
ground and surface water) and ensuring comprehensive and balanced development of
both catchment and command areas.
Draft Bill proposed to establish 13 River Basin Authorities for various river basins of the
country.
It is expected that enactment of proposed legislation would result in optimum integrated
development and management of inter-State River waters with basin approach and will
result in change of environment from the one of conflicts to that of cooperation.
SUGGESTION ON REFORMING INTER-STATE RIVER WATER DISPUTE
Mihir Shah Committee recommendations
Restructuring of Central Water Commission and Central Ground Water Board. It has
recommended establishment of National Water Commission to be established as the
nation’s apex facilitation organization dealing with water policy, data and governance. It
has suggested that industrial water should be brought under its ambit, which is rapidly
increasing.
Water is a common Property: Owners of Land is not the owner of the Water.
River Basin as a unit of Planning: It is because of water link between aquifer, ground
water and river flows.
Adopt participatory approach to water management that has been successfully tried
all over the world, as also in Madhya Pradesh, Gujarat and Andhra Pradesh.
National Commission to Review the Working of Constitution recommended a
comprehensive central legislation, after consultation with states, to define constitution
and jurisdiction of river boards to regulate, develop and control all interstate rivers.
States have a constitutional duty to protect the rights of its people over rivers that pass
through them.

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4. FINANCIAL RELATIONS
FINANCIAL RELATIONS (ARTICLE 268-293 PART XII)
Financial Relations or Fiscal Federalism refers to the division of responsibilities
with regards to public expenditure and taxation between the different levels of
the government.
Taxation Power divided between Centre and State:
 Parliament has exclusive power to levy taxes on subjects enumerated in the Union List
(which are 13 in number)
 State legislature has exclusive power to levy taxes on subjects enumerated in the State
List (which are 18 in number).
 No tax entries in the Concurrent List: In other words, concurrent jurisdiction is not
available with respect to tax legislation. But 101st Amendment Act of 2016 has made
an exception by making a special provision with respect to goods and services tax.
This Amendment has conferred concurrent power upon Parliament and State
Legislatures to make laws governing goods and services tax.
 Residuary power of taxation vest with the Parliament. Ex: Gift Tax, Wealth Tax and
Expenditure Tax.

GST
The Council is a joint forum of the centre and the states and consists of the
following members:
 Union Finance Minister as the Chairperson
 Union Minister of State in-charge Of Revenue or Finance
 Minister in-charge of Finance or Taxation or any other Minister nominated by each
state government.
 Members of the Council from the states have to choose one amongst themselves
to be the Vice-Chairperson of the Council. They can also decide his term.
 Union Cabinet decided to include Chairperson of Central Board of Indirect Taxes
and Customs as a permanent invitee (non-voting) to all proceedings of the Council.
 Whenever a GST Council meeting is held, the following rules must be complied
with:0 At least 50% of the total number of GST members must be present at every
GST Council meeting so that the meeting can be called a valid meeting.
 Every decision that is taken in GST Council meetings should be backed by a
minimum of 75% majority of the weighted votes cast by the members of the
council. The members should be present in the meeting and should also vote. For
understanding the weighted votes cast by the Central Government and State
Government members, Article 279A lays down the following rules –
 Vote of Central Government would have weightage of 1/3rd of the total votes cast.
 Votes of members of State Government would have weightage of 2/3rd of total
votes cast.
 Any type of act, decision taken, or proceedings of the GST Council meeting would
not be considered invalid if there have been the following deficiencies when the
GST Council was established –
 A vacancy remained in the council.
 There was a defect in the constitution of the council.

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 There was a defect in appointing an individual as the member of the council. In case
of non-compliance of a procedure
GST Council and Supreme court
Mohit Minerals had filed a writ petition before Gujarat High Court. It challenged
notification of Union Government levying IGST on the ground that customs duty is
levied on the component of ocean freight and the levy of IGST on the freight element
in the course of transportation would amount to double taxation. Union Government
argued before High Court that although tax is being paid twice on the value of ocean
freight, it is not unconstitutional. The tax paid was on two different aspects of the
transaction, namely, the supply of service and import of goods.
In Union of India vs Mohit Minerals Pvt Ltd. Supreme court has ruled that
recommendations of GST Council are not binding on either Union or State
Governments. While Union Government has said that SC’s Judgment on GST does not
bring any change to the already existing framework, some Opposition-ruled States
have stated that it would give them greater space to take decisions in federal
structure.
Significance:
 Order has reminded States that they can reject decisions made by the GST Council
and set different rates for goods and services in their jurisdiction. This can open a
new avenue for State Governments to harness more revenue.
 SC’s Judgment on GST has increased the bargaining power of State Governments.
 It will prevent the Union Government from disregarding the interests of States.

Constitutional Limitations on State

A state legislature can impose taxes on professions, trades, callings and employments.
But the total amount of such taxes payable by any person should not exceed 2,500 per
annum.
 A state legislature is prohibited from imposing a tax on the supply of goods or services
or both in the following two cases: (a) where such supply takes place outside the state,
and (b) where such supply takes place in the course of import or export. Further, the
Parliament is empowered to formulate the principles for determining when a supply
of goods or services or both takes place outside the state, or in the course of import
or export.
 A state legislature can impose tax on the consumption or sale of electricity. But no tax
can be imposed on the consumption or sale of electricity which is (a) consumed by the
Centre or sold to the Centre; or (b) consumed in the construction, maintenance or
operation of any railway by the Centre or by the concerned railway company or sold
to the Centre or the railway company for the same purpose.
 A state legislature can impose a tax in respect of any water or electricity stored,
generated, consumed, dis- tributed or sold by any authority established by Parliament
for regulating or developing any inter-state river or river valley. But, such a law, to be
effective, should be reserved for the president’s consideration and receive his assent.
This all has led to:
 Assignment of revenues and expenditures according to the principle of comparative
advantage results in Central governments having access to most broad-based taxes
and subnational governments having responsibilities to provide most of economic
and social services but inadequate revenue handles to provide them. (Vertical
Imbalances)

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 There are wide differences among the States in the capacity to raise revenues as the
size of the tax base varies widely. The variations in the tax base among the States
results variations in the standards of public services delivered even when the States
make uniform effort at raising revenues. (Horizontal Imbalances)
 These variations violate the principle of “horizontal equity” or “equal treatment of
equals”. These vertical and horizontal fiscal imbalances will have to be resolved
through a system of intergovernmental transfers from the Centre to the States.
Correction to these Imbalances
Constitutional arrangements of Taxation between centre and State:
1. Taxes Levied by the Centre but Collected and Appropriated by the States (Article
268): This category includes the stamp duties on bills of exchange, cheques, promissory
notes, policies of insurance, transfer of shares and others.
 The proceeds of these duties levied within any state do not form a part of the
Consolidated Fund of India but are assigned to that state.
2. Taxes Levied and Collected by the Centre but Assigned to the States (Article
269): The following taxes fall under this category:
 Taxes on the sale or purchase of goods (other than newspapers) in the course of inter-
state trade or commerce,
 Taxes on the consignment of goods in the course of inter-state trade or commerce.
The net proceeds of these taxes do not form a part of the Consolidated Fund of
India. They are assigned to the concerned state.
3. Levy and Collection of Goods and Services Tax in Course of Inter-State Trade or
Commerce (Article 269-A): The Goods and Services Tax (GST) on supplies in the course
of inter-state trade or commerce are levied and collected by the Centre. But this tax is
divided between the Centre and the States in the manner provided by Parliament on the
recommendations of the GST Council.
4. Taxes Levied and Collected by the Centre but Distributed between the Centre
and the States (Article 270): This category includes all taxes and duties referred to in
the Union List except the following:
 Duties and taxes referred to in Articles 268, 269 and 269-A
 Surcharge on taxes and duties referred to in Article 271
 Any cess levied for specific purposes.
The manner of distribution of the net proceeds of these taxes and duties is
prescribed by the President on the recommendation of Finance Commission.
5. Surcharge on Certain Taxes and Duties for Purposes of the Centre (Article 271):
The Parliament can at any time levy the surcharges on taxes and duties referred to in
Articles 269 and 270 (mentioned above). The proceeds of such surcharges go to the
Centre exclusively. In other words, the states have no share in these surcharges.
However, the Goods and Services Tax (GST) is exempted from this surcharge. In other
words, this surcharge cannot be imposed on the GST.
Besides sharing of taxes between the Centre and the states, the Constitution
provides for grants-in-aid to the states from the Central resources. There are two
types of grants-in aid, viz, statutory grants and discretionary grants:
Statutory Grants:
Article 275 empowers the Parliament to make grants to the states which are in need of
financial assistance and not to every state. Also, different sums may be fixed for different
states. These sums are charged on the Consolidated Fund of India every year.

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Apart from this general provision, the Constitution also provides for specific grants for
promoting the welfare of the scheduled tribes in a state or for raising the level of
administration of the scheduled areas in a state including the State of Assam.
The statutory grants under Article 275 (both general and specific) are given to the states
on the recommendation of the Finance Commission.

DISCRETIONARY GRANTS
 Article 282 empowers both the Centre and the states to make any grants for any public
purpose, even if it is not within their respective legislative competence.
 Under this provision, the Centre makes grants to the states. The Centre is under no
obligation to give these grants and the matter lies within its discretion.
 Notably, the discretionary grants constitute the larger part of the Central grants to the
states (when compared with that of the statutory grants).

CURRENT SCENARIO OF FISCAL MANAGEMENT OF VARIOUS STATES

 Backward states are generally not able to attract investments due to lack of
infrastructure on their own due to lack of investible funds. Backward states have a
limited own resource due to a small economy and a weak market structure. Therefore,
they rely heavily on funding and tax sharing support from central government. For
example, West Bengal and Jharkhand have low tax– Gross State Domestic Product
(GSDP) ratio, while Karnataka and Kerala have a higher tax– GSDP ratio as a result of
the better tax administration of their state governments.
 In the light of revenue deficit grants provided by the FC14, eight states have shown
revenue deficit in their budgets for 2015–16. All these states are high-income or
average-income states.
 On the other side, Low-income states have been generating revenue surplus,
especially after the Twelfth Finance Commission’s (FC12) recommendation for
implementing the Fiscal Resources of Budgetary Management Act (FRBMA), by
compromising on their social and economic needs by compromising on their social
and economic needs.
 However, they should spend more on better human and economic development
outcomes. Further, they should utilise their full debt potential for creation of adequate
infrastructure
 Contrary to this, developed states utilise and sometimes cross limit of the FRBM Act
(states are allowed to borrow loan till 3.5% GSDP) for more development outcomes.
Instead of rewarding them, Finance Commission 14 has penalised the revenue-
surplus states for maintaining the fiscal discipline.
 Against this backdrop, it can be seen that the states that have not followed FRBM Act
norms are awarded with revenue deficit grants, whereas states that have a high
population pressure are being penalised since 1971 for not following the desired
development trend.
Finance Commission
 The Finance Commission (FC) is a constitutional body that determines the method and
formula for distributing the tax proceeds between the Centre and states, and among
the states as per the constitutional arrangement and present requirements.
 Under Article 280 of the Constitution, the President of India is required to constitute
a Finance Commission at an interval of five years or earlier.

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 The 15th Finance Commission was constituted by the President of India in November
2017, under the chairmanship of NK Singh. Its recommendations will cover a period
of five years from the year 2021-22 to 2025-26.
Recommendations of 15th FC
 Vertical Devolution (Devolution of Taxes of the Union to States):
 It has recommended maintaining the vertical devolution at 41% – the same as in its
interim report for 2020-21.
 It is at the same level of 42% of the divisible pool as recommended by the 14th Finance
Commission.
 It has made the required adjustment of about 1% due to the changed status of the
erstwhile State of Jammu and Kashmir into the new Union Territories of Ladakh and
Jammu and Kashmir.
Horizontal Devolution (Allocation Between the States)
 For horizontal devolution, it has suggested 12.5% weightage to demographic
performance, 45% to income, 15% each to population and area, 10% to forest and
ecology and 2.5% to tax and fiscal efforts.
Revenue Deficit Grants to States
 Revenue deficit grants emanate from the requirement to meet the fiscal needs of the
States on their revenue accounts that remain to be met, even after considering their
own tax and non-tax resources and tax devolution to them.
 Revenue Deficit is defined as the difference between revenue or current expenditure
and revenue receipts that includes tax and non-tax.
 It has recommended post-devolution revenue deficit grants amounting to about Rs. 3
trillion over the five-year period ending FY26.
 The number of states qualifying for the revenue deficit grants decreased from 17 in
FY22, the first year of the award period to 6 in FY26, the last year.
Performance Based Incentives and Grants to States
 These grants revolve around four main themes.
 The first is the social sector, where it has focused on health and education.
 Second is the rural economy, where it has focused on agriculture and the maintenance
of rural roads.
 The rural economy plays a significant role in the country as it encompasses two-thirds
of the country’s population, 70% of the total workforce and 46% of national income.
 Third, governance and administrative reforms under which it has recommended
grants for judiciary, statistics and aspirational districts and blocks.
 Fourth, it has developed a performance-based incentive system for the power sector,
which is not linked to grants but provides an important, additional borrowing window
for States.
Fiscal Space for Centre
 Total 15th Finance Commission transfers (devolution + grants) constitutes about 34%
of estimated Gross Revenue Receipts to the Union, leaving adequate fiscal space to
meet its resource requirements and spending obligations on national development
priorities.

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Grants to Local Governments

 Along with grants for municipal services and local government bodies, it includes
performance-based grants for incubation of new cities and health grants to local
governments.
 In grants for urban local bodies, basic grants are proposed only for cities/towns having
a population of less than a million. For Million-Plus cities, 100% of the grants are
performance-linked through the Million-Plus Cities Challenge Fund (MCF).
 MCF amount is linked to the performance of these cities in improving their air quality
and meeting the service level benchmarks for urban drinking water supply, sanitation
and solid waste management.
Criticism
 Performance based incentives disincentivize independent decision-making. Any
conditions on the state’s ability to borrow will have an adverse effect on the spending
by the state, particularly on development thus undermining cooperative fiscal
federalism.
 It does not hold the Union government accountable for its own fiscal prudence and
dilutes the joint responsibility that the Union and States have.
 The share of southern states out of India’s population has decreased by 4 percentage
points (between 1971 to 2011) whereas the share of the northern state at the same
time has increased, so southern states are apprehensive of their share because of the
use of 2011 census data.
Challenges in Fiscal Federalism in India
Increasing Central Dominance in Fiscal Policies: A series of steps by the Union
government undermined the principles of fiscal federalism. This has been manifested
by:
 Increasing monetary share of the States in Centrally Sponsored Schemes (CSS).
 Imposition of demonetisation without adequate consultation with the States.
 Outsourcing of the statutory functions under the Smart Cities Mission
 As of 2020-21, the Union government’s share in the total contribution of the petroleum
sector was 68%, which left only 32% to the States.
 In 2013-14, the Union: State share was almost 50:50.
Taxation Related Issues: Enlarging the non-divisible pool of taxes in the form of cess in
petrol tax and instituting the Agriculture Infrastructure and Development Cess have
resulted in a situation where the Union continues to exclusively benefit from tax
collection.
The share of non-divisible pool cess and surcharge in total taxes collected by the Union
government has increased from 12.67% in 2019-20 to 23.46% in 2020-21.
 The 2021-22 Budget Estimates indicate that the States’ share of Union tax has reduced
to 30% against the mandated 41% devolution prescribed by the 15th Finance
Commission.
 GST Specific Issues: During the pandemic, the Union government repeatedly violated
the compensation guarantees to the States under the GST regime.
 Delay in paying the States their due worsened the impact of the economic slowdown.
 The GST compensation period expires in 2022, and despite multiple requests from the
States, the deadline has not been extended.
 Inadequate Funding: Cash-starved States have been seeking non-tax avenues to
generate funds to sustain their programmes.

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 The suspension and transfer of the Member of Parliament Local Area Development
(MPLAD) funds to the Consolidated Fund of India led to a major crisis situation for
most States.
 Although the Government has raised the borrowing limit under the Fiscal
Responsibility and Budget Management Act (FRBM) from 3% to 5%, it has imposed
certain restrictive conditions making it more difficult for the states to borrow.
Positive Change in Fiscal Federalism:
 Replacement of planning commission by Niti Aayog.
 Removal of Distinction between Plan and Non Plan expenditure.
 Introduction of GST.
 Increase in devolution of taxes from 32% to 42% by 14th Finance commission and 41%
by 15th FC.
 Outcome Based Budgeting: Introduced in 2017-18 with the formulation of outcome
framework for 68 Ministries/Departments along with the Union Budget document.
Allowing State entities to borrow directly from Official Development Assistance (ODA)
Partners after 2017.
Role of State Governments in improving ‘external relations’: Signing of Sister City
Partnership Agreement by many of the Indian cities like – Varanasi, Hyderabad,
Bangalore, etc. with major cities of the developed countries.

SUGGESTIONS
Recommendation by Punchhi commission are as follows-
 The Commission recommends a comprehensive review of all transfers to States with
a view to minimizing the component of discretionary transfers, particularly those
channelled through Central Sector Schemes.
 Recommend higher Central transfers to backward States to enable them to improve
their physical and human infrastructure.
 All future Central legislations involving States’ involvement should provide for cost-
sharing as in the case of the RTE Act.
 The royalty rates on major minerals should be revised at least every three years
without any delay. States should be properly compensated for any delay in the
revision of royalty beyond three years.
 A part of the sale proceeds of the spectrum should be devolved to States for
expenditure on infrastructure projects.
 This ‘one-size fits all’ approach to fiscal consolidation has constrained fiscally strong
States to raise more resources. Therefore, State-specific targets of fiscal deficit in the
FRBM legislation of States.

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19
ASYMMETRIC
Chapter FEDERALISM
TOPICS TO BE COVERED
1. Union Territory
2. Jammu Kashmir as Union Territory
3. 5th and 6th Schedule
4. Fifth Schedule
5. Sixth schedule

1. UNION TERRITORY
Asymmetric federalism means federalism based on unequal powers and
relationships in political, administrative and fiscal arrangements between the
units constituting a federation.
Asymmetric federalism means different constituent states possess different
powers. One or more of the states has considerably more independence than the
others, though they have the same constitutional status.
Example:
1. Union Territory.
2. 5th and 6th Schedule.

UNION TERRITORY (PART VIII, ARTICLE 239-241)

A “Union Territory” may be defined as a centrally administered area governed by
the President through an Administrator. Thus status of a Union Territory under
the Constitution is not the same as that of a State. The Union Executive and
Parliament exercise supreme authority over a Union Territory. However,
Parliament may by law provide a change in the status of these Territories.

DIFFERENCE IN STATUS OF STATE AND UT:

STATE UT

It is an independent unit which is run by It is not an independent unit but is run

the by

state legislature which either is the administrators appointed by

unicameral

or bicameral the President of India

Centre’s relationship is Federal Centre’s relationship is Unitary.

The Governor is the constitutional head of The President is the executive head of
the state. the union territory

States have their own set of powers Union territories are not self-governing

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REASONS FOR CREATION OF UNION TERRITORIES

The union territories have been created for a variety of reasons. These are
mentioned below:
Political and administrative considerations – Delhi and Chandigarh.
 Cultural distinctiveness – Puducherry, Dadra and Nagar Haveli, and Daman and Diu.
 Strategic Importance – Andaman and Nicobar Islands and Lakshadweep.
Special treatment and care of the backward and tribal people – Mizoram, Manipur,
Tripura, and Arunachal Pradesh which later became states.

ADMINISTRATION OF UNION TERRITORIES (ARTICLE 239)

Article 239(1) provides that every Union Territory shall be administered by the President
as he thinks fit, through administrator to be appointed by him with such designation as
he may specify”. Parliament may by law provide otherwise.
Clause (2) of Article 239 says that a Governor of a State may also appointed, by the
President, as the administrator of an adjoining Union Territory, where a Governor is so
appointed as the administrator for the Union Territory, he shall exercise his functions as
such administrator independently of his Council of Ministers.
The administrator appointed under Clause (1) has such powers as be conferred on him
by the President. But he does not have the power do anything in a Union Territory which
the President can do.

CREATION OF LEGISLATURE OR COUNCIL OF MINISTERS FOR

PONDICHERRY
 Article 239-A provides that Parliament may, by law, create for the Union Pondicherry,
a Legislature, or a Council of Ministers or both. The law so created, may be an elected
or partly nominated and partly elected. Such law shall determine the constitution,
powers and functions of the legislature or the Council of Ministers, so created. Any
such law shall not be deemed to be an amendment of the Constitution for the
purposes of Article 368.
 Article 239-A was inserted by the Constitution (Fourteenth amendment) Act, 1962.

POWER OF ADMINISTRATOR TO PROMULGATE ORDINANCES

(ARTICLE 239-B)
This article Confers on the Administrator of the Union Territory of Pondicherry,
power to promulgate Ordinances when
 The Legislature of the Union Territory of Pondicherry is not in Session and
 The Administrator is satisfied that circumstances exist which render it necessary for
him to take immediate action.
However, no such Ordinance shall be promulgated by the Administrator without
the prior instructions from the President in that behalf. Further that administrator
shall not promulgate an Ordinance when the Legislature is either dissolved or
suspended on account of any action taken under any such law as is referred to in
Article 239-A (1).

POWERS AND SOURCES OF LG OF PUDUCHERRY

1. Discretion: Section 44 of the Union Territories Act, 1963, allows the LG to “act in
his discretion” in the matter of law making, even though the Council of Ministers
has the task of aiding and advising him. In case of a difference of opinion between
the LG and his Ministers on any matter, the Administrator is bound to refer it to

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the President for a decision and act according to the decision given by the
President. However, the Administrator can also claim that the matter is urgent
and take immediate action as he deems necessary.
2. Mandatory Prior sanction: Under Section 22 of the Act, prior sanction of the
Administrator is required for certain legislative proposals. These include Bills or
amendments that the Council of Ministers intends to move in the Legislative
Assembly, and which deal with the “constitution and organisation of the court of
the Judicial Commissioner”, and “jurisdiction and powers of the court of the
Judicial Commissioner with respect to any of the matters in the State List or the
Concurrent List”.
3. Obligatory provisions: Section 23 of the Act also makes it obligatory on the part
of the UT government to seek the “recommendation” of the LG before moving a
Bill or an amendment to provide for “the imposition, abolition, remission,
alteration or regulation of any tax”,
4. Regulatory powers: Under Rule 47, which deals with persons serving in the UT
government, the Administrator exercises powers regulating the conditions of
service of such persons in consultation with the Chief Minister. In case the LG has
a difference of opinion with the Chief Minister, he can refer the matter to the
central government for the decision of the President.
5. Veto powers: Once the Assembly has passed a Bill, the LG can either grant or
withhold his assent; or reserve it for the consideration of the President. He can
also send it back to the Assembly for reconsideration.

POWER OF PRESIDENT TO MAKE REGULATIONS TERRITORIES (ARTICLE 240)

 Clause (1) of Article 240 empowers the President to make regulation for the peace
progress and good government of the Union Territory of the Andaman & Nicobar
Islands, Lakshadweep, Dadra and Nagar Havel However, if a Legislature for the Union
Territory of Pondicherry Daman & Diu, and Pondicherry.
 However, if the legislature of Pondicherry is created under Article 239-A, the President
shall, not make any regulations under Article 240(1) for that Union Territory. But
during the period when Legislature is dissolved or suspended, the President may
make regulation.
 Clause (2) of Article 240 provides that regulations made by the President for that
Territory,” shall have the same force and effect as an Act of Parliament. The
regulations may repeal or amend any law made by Parliament under its powers
conferred by Articles 245 and 246.

SPECIAL PROVISION WITH RESPECT TO DELHI (ARTICLE 239 AA & 239 AB)
 Clause (1) of Article 239-AA declares that the Union Territory of Delhi shall be called
the National Capital Territory of Delhi, to be referred to as the National Capital
Territory (NCT). The Administrator to be appointed for Delhi under Article 239 shall be
designated as the Lieutenant Governor.

CREATION OF LEGISLATIVE ASSEMBLY FOR NCT [ARTICLE 239-AA (2)

& (3)]
There shall be a Legislative Assembly for the NCT and the seats in such Assembly shall
be filled by members chosen by election from territorial constituencies in the NCT.
Parliament, by law, shall regulate the total number of seats in the Legislative Assembly,
the number of seats reserved for Scheduled Castes, the division of the NCT into territorial

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constituencies, the basis of such division, and all other matters relating to the functioning
of the Assembly.
The provisions of Articles 324 to 327 and 329 relating to Superintendence, direction and
control of election, shall apply in relation to the NCT and its Assembly.
The Legislative Assembly of the NCT shall have power to make laws for the whole or any
part of its Territory with respect to any of the matters enumerated in the State List or
Current List, except the matters with respect to Police, Public order and Land.
However, the powers of Parliament to make laws with respect to any Union Territory or
any part remains unaffected. If any of a law made by the Legislative Assembly w.r.t any
matter is repugnant to any provision of a law made by Parliament w.r.t. that matter,
passed before or after the law made by the Assembly, such law, shall be declared void.
However, if any such law made by the Assembly has been reserved for the consideration
of the President and has received his assent, such law shall prevail in the NCT. But, if
Parliament makes any law with respect to the matter subsequent to the law made by the
Assembly, the Parliamentary law will prevail.

CREATION OF COUNCIL OF MINISTERS FOR N.C.T. [ARTICLE 239-AA

(4)]
 Clause (4) of Article 239-AA provides that there shall be a Council of minister with the
Chief Minister at the head, to aid and advise the Governor in the exercise of his
functions
 The Council of Ministers of the NCT shall consist of not more than ten percent of the
total number of members in the Legislative Assembly.
 Clause (4) of Article 239-AA says that in the case of difference between the Lieutenant
Governor and his Ministers on any matter. Lieutenant Governor shall refer it to the
President for decision and act according to the decision given by the President.
 During the pendency of the matter with the President, the Lieutenant Governor may
take such action or give such direction as he deems necessary if the matter is urgent
and he is of the opinion that it is necessary for him to take immediate action.
 Constitution Bench of the Supreme Court in NCT of Delhi v. Lt. Governor Delhi, held
that Article 239-AA. was 18 que provision and gave the Ltd. Governor more powers
and authority, in comparison to other centrally administered territories.

APPOINTMENT OF THE CHIEF MINISTER AND OTHER MINISTERS

 Clause (5) of Article 239-AA provides that the Chief Minister shall be appointed by the
President and the other Ministers shall be appointed the President on the advice of
the Chief Minister.
 The Ministers shall office during the pleasure of the President.
 Clause (6) provides that the Council of Ministers shall be responsible to the Legislative
Assembly. Parliament is empowered to make law for giving effect to or supplementing
the provisions contained in Article 239-AA.
 Any such law, so made, shall not be deemed to be an amendment of Constitution for
the purposes of Article 368.

ORDINANCE-MAKING POWER [ARTICLE 239-AA (8)]

Clause (8) of Article 239-AA confers on the Lieutenant Governor of the NCT, power to
promulgate Ordinances during the recess of the Assembly and when the circumstances
so require. In this respect the provisions of Artic 239-B would be applicable to NCT as
they apply to the Union Territory of Pondicherry.

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FAILURE OF CONSTITUTIONAL MACHINERY IN NCT (ARTICLE 239-

AB)
Article 239-AB contains provisions similar to those contained in Article 356 in
respect of a Proclamation declaring the breakdown of the constitutional
machinery in the States. Article 239-AB provides that if the President, on receipt of
a report from the Lieutenant Governor or otherwise, is satisfied-
1. That a situation has arisen in which the administration of the NCT cannot be carried
on in accordance with the provisions of Article 239-AA or of any law made in pursuance
of that Article; or
2. That for the proper administration of the NCT it is necessary or expedient so to do,
the President may by order-
 Suspend the operation of any provision of Article 239-AA or all or any of the provisions
of any law made in pursuance that Article for such period and subject to such
conditions a may be specified in such law, and make such incidental and
consequential provisions as may appear to him to be necessary or expedient for
administering the NCT in accordance with the provisions of Article 239 Article 239-AA.

COMPARISON WITH POWERS OF LG OF DELHI AND PUDUCHERRY

Power of LG of Delhi Power of LG of Puducherry

LG of Delhi has “Executive Functions” that LG of Puducherry has no such

allow him to exercise his powers in matters “Executive Functions or powers”.
connected to public order, police and land “in Puducherry legislative assembly deals
consultation with the Chief Minister, if it is so with all these matters.
provided under any order issued by the
resident under Article 239 of the
Constitution”.

LG of Delhi is guided by the Government of LG of Puducherry is guided mostly by

National Capital Territory of Delhi Act, 1991, the Government of Union Territories
the Transaction of Business of the Act, 1963 and provisions under it.
Government of National Capital Territory of Thus, it’s power are limited.
Delhi Rules, 1993, and Union Territories Act,
1963. Thus the LG of Delhi enjoys greater
powers than the LG of Puducherry.

Article 239AA imposes several restrictions on No such restrictions had been

the legislature of Delhi. imposed explicitly in the case of
Puducherry under Article 239A.

Under the constitutional scheme, the Delhi The Puducherry Assembly can
Assembly has the power to legislate on all legislate on any issue under the
subjects except law and order and land. Concurrent and State Lists

TUSSLE BETWEEN GOVERNMENT OF DELHI & CENTRAL

GOVERNMENT
Constitution Bench of the Supreme Court in Government of NCT of Delhi vs. Union of India
(2018) said: “The exercise of establishing a democratic and representative form of
government for NCT of Delhi by insertion of Articles 239AA and 239AB would turn futile
if the Government of Delhi that enjoys the confidence of the people of Delhi is not able
to usher in policies and laws over which the Delhi Legislative Assembly has powers to
legislate for the NCT of Delhi.

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CONSTITUTIONAL & LEGAL SCHEME FOR ADMINISTRATION OF

DELHI
 Article 239 says Administrator can act as he thinks fit and UT Act 1963 also says
administrative discretion is final.
 Article 239 AA (7)(8), says that Parliament has power to change the provisions of UT.
 Article 239 AB says President can suspend any provision relating to Council of Minister.
 Section 49 of the NCT Act says the CM and his Council of Ministers shall be under the
general control of the President. This has disturbed the delicate balance between the
central and Delhi government.
Due to co-existence of Article 239 and 239AA, there is a jurisdictional conflict between
government of NCT and Union Government and its representative, Lieutenant Governor.
According to Union government, New Delhi being a Union Territory Article 239 empowers
the Lieutenant Governor to act independently of his Council of Ministers. However, the
state government of Delhi held that the Article 239AA of the Constitution bestows special
status to Delhi of having its own legislatively elected government.

ISSUES BETWEEN THESE TWO GOVERNMENTS:

Delhi government has appointed public prosecutors for conducting Delhi riot cases in
High Court. However, Lt. Governor (LG) has stalled this decision, by referring it to the
President under provision to Article 239AA (4).

DEMAND FOR STATEHOOD BY DELHI GOVERNMENT

Arguments in favour of statehood:
1. Government has no say in the issues pertaining to recruitment and conditions of
service of officials of IAS, clerks etc. Also, present Delhi government has accused
the centre to be meddling in its work and putting barricade through LG.
2. Delhi Development Authority (DDA): Delhi government has no say over the affairs
of DDA. This hinders the effective allocation, use of land and implementing welfare
schemes.
3. Police: Due to absence of control over the police force, the Delhi government faces
problem in proper maintenance of law and order in the state.
4. Municipal Corporation of Delhi: Government of Delhi has no control over MCD. The
government is of opinion that it hinders in implementing development measures.
5. Role of LG: Role and power of LG and Delhi government’s Council of Ministers has
always been an area of contestation. LG has often been accused of delays and
disruptions in the work of the elected government.
Arguments against the Statehood:
1. Being the national capital, Delhi hosts various critical infrastructures such as
parliament, presidential estates, and embassies. Maintenance of these is extremely
important and cannot be handed over to a different entity.
2. Granting statehood might lead to various administrative problems especially in law
and order which would be detrimental for the national capital.
3. Quality of governance might decline due to the impact on finances.
4. Security concerns: Security of embassies, parliaments. Further, there is the issue of
safety and security of visiting dignitaries from different countries and also head of
states. The responsibility of ensuring security to them lies on Centre and state
cannot be entrusted with it.

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5. Control over land is required especially in areas with central government

institutions, embassies.

 Appointment of Chief Secretary by Delhi Government was rejected by Lt Governor.

Transaction of Business Rules states that proposals of Delhi Government have to be
submitted to Governor. But nowhere it is written that Lt Governor can reject/cancel it.
 Case of Sending back Bill by Home Ministry: Bill passed by Delhi legislative assembly
was sent back and the ground was it requires sanction of Home Ministry. However,
Transaction of Business Rules provides for this, but only when a bill is reserved for
President Assent under Article 239 AA (3).

Amendment to NCT of Delhi Act, 2021

Impact of such amendment:
 Basic function of the legislature is to hold the executive accountable, how it will be
possible if they can’t even discuss things freely in the house.
 Committee who works freely without any interference of political party will get
impacted.
 Discretionary Power of Lt. Governor is a critical issue. SC directives on his power is
mentioned below:
 The words ‘any matter’ employed in the proviso to Article 239AA (4) cannot be inferred
to mean ‘every matter’.
 Power of Lieutenant Governor under the said proviso represents the exception and
not the general rule which has to be exercised in exceptional circumstances by Lt.
Governor. Supreme Court says, “Article 239AA (3)(a) reserves Parliament’s legislative
power on all matters in State List and Concurrent List but clause (4) explicitly grants to
the Government of Delhi executive powers in relation to matters for which Legislative
Assembly has powers to legislate.
 The only occasion when Union Government can overrule the decision of State
government is when Lt. Governor refers a matter to President under proviso to clause
(4). But this proviso cannot totally override executive decisions of State government.

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2. JAMMU KASHMIR AS UNION TERRITORY

JAMMU AND KASHMIR REORGANISATION ACT, 2019
Application of provisions on elected legislatures: The Act provides that Article 239A of the
Constitution, which is applicable to the union territory of Puducherry, shall also apply to
the union territory of J&K. Article 239A provides for the constitution of a union territory
of Puducherry with: (i) a legislature, which may be elected, or partly nominated and partly
elected, or (ii) a Council of Minister.
 The Act states that in addition to Article 239A, any other provision of the Constitution
which refers to elected members of a legislative assembly of a state and is also
applicable to the union territory of Puducherry, will apply to the union territory of J&K.
 Section 55 of the Act says: The Lieutenant Governor shall make rules on the advice
of the Council of Ministers.
 For the allocation of business to the Ministers;
 For the more convenient transaction of business with the Ministers including the
procedure to be adopted in case of a difference of opinion between the Lieutenant
Governor and the Council of Ministers or a Minister.
This means that the recommendation of the council of ministers is binding when
framing rules dealing with procedures of power-sharing between the LG and the
elected representatives of J&K UT.

ROLE OF LIEUTENANT GOVERNOR

 LG’s executive powers will include police, public order, All India Services, and anti-
corruption, suggesting that the Chief Minister or the Council of Ministers will have no
input in how they are run.
 Before issuing any orders, proposals or matters affecting or likely to affect the peace
and tranquillity of the UT or interests of any minority community, Scheduled Castes,
Scheduled Tribes, or Backward Classes “shall essentially be submitted to Lieutenant
Governor through the Chief Secretary, under intimation to the Chief Minister”.
 Decision of Lieutenant Governor shall be considered to have been accepted by the
Council of Ministers” if there is a disagreement between the LG and a Minister and no
agreement can be reached after a month.
 Total seats in the assembly rose to 114 seats, out of which 24 seats are designated for
areas that fall under Pakistan Administered Kashmir. Out of the remaining 90 seats,
43 seats are in Jammu division and 47 seats are in the Kashmir division.

3. 5TH AND 6TH SCHEDULE

5TH SCHEDULE 6TH SCHEDULE

Consists of provisions for Consists of provisions for the administration of

administration of tribal areas in any tribal areas in Assam, Meghalaya, Tripura and
State except Assam, Meghalaya, Mizoram.
Tripura, Mizoram

Tribes Advisory Councils Autonomous District councils

In the Constitution, the expression The Governor has the power to create a new
‘Scheduled Areas’ means such areas Autonomous District/Region or alter the

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as the President may by order territorial jurisdiction or the name of any

declare to be Scheduled Areas” Autonomous District or Autonomous Regions.

have less autonomy more autonomy i.e. legislative, executive,

financial and judicial power.

5th schedule 6th schedule

consists of provisions for consists of provisions for the administration of

administration of tribal areas in any tribal areas in Assam, Meghalaya, Tripura and
State except Assam, Meghalaya, Mizoram.
Tripura, Mizoram

Tribes Advisory Councils Autonomous District councils

In the Constitution, the expression The Governor has the power to create a new
‘Scheduled Areas’ means such areas Autonomous District/Region or alter the
as the President may by order territorial jurisdiction or the name of any
declare to be Scheduled Areas” Autonomous District or Autonomous Regions.

have less autonomy more autonomy i.e. legislative, executive,

financial

Majority of communities classified as Scheduled Tribes have been living in the hilly and
forest regions of the country. They have been living in isolation for generations and
evolved culture of their own. They never liked interference of outsiders. After
independence, these areas were notified as Scheduled areas as per provisions of the
constitution by with various provisions for administration.
Article 244 in Part X of the Constitution envisages a special system of administration of
areas notified as “Scheduled Areas” and “Tribal Areas”. According to Article 244(1), the
provisions of the Fifth Schedule shall apply to the administration and control of the
Scheduled Areas and Scheduled Tribes in any states other than the four North Eastern
states of Assam, Meghalaya, Tripura and Mizoram. Whereas, as per Article 244(2), the
tribal-dominated areas in the above four States of Assam, Meghalaya, Tripura and
Mizoram are to be administered separately under the Sixth Schedule of the Constitution.
Under Article 244 and the Sixth Schedule, these areas are specified as “Tribal Areas”
which are technically different from the “Scheduled Areas” under the Fifth Schedule.
Thus, the Fifth and Sixth Schedules of the Constitution have special provisions related to
the administration and control of such areas declared as “Scheduled Areas” and “Tribal
Areas” respectively

SPECIAL PROVISIONS
Prior to independence and enactment of the Constitution, the British government’s
policy of isolation and non-interference in the affairs of tribal population in different
parts of the country has gradually pushed them back into the forest and hills. Due to this
isolation, these tribes remained uneducated, poor and underdeveloped. They were
governed by their own customary
laws and rituals. While some of them depend on cultivation, the livelihood of many
others continued to depend on hunting, food gathering, etc. The ‘land’ and ‘forest’
are, therefore, the two basic resources of tribal livelihood system. They have a
great emotional attachment to their land and forest. It gives them equality of
status, dignity and means to economic and social empowerment. As a result, their
life and outlook are quite different from those of the people in the rest of the
country (particularly, the plain areas). Recognising the constraints imposed by
these peculiar social, cultural and ecological environments, the framers of the

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Constitution considered it necessary to introduce some mechanism to protect

their cultural identity, protect them from exploitation and promoted their
development.

CONSTITUTIONAL BASIS FOR THESE SCHEDULES

 Article 14 recognises the right to equality before law and equal protection of the law.
The Constitutional provisions as well as numerous judicial precedents firmly establish
that a mere ‘formal’ equality approach has been rejected. Instead, the Constitution
clearly recognises that to be completely meaningful, a ‘substantive’ approach to
equality has to be adopted, and therefore the historical discrimination of certain
groups and classes must not only be abjured by the state, but concrete steps must be
taken to reverse the present consequences of such historical discrimination.
 Article 15 which prohibits discrimination by the state of any citizen on grounds of
religion, race, caste, sex, place of birth, or any of them. The Article insists on affirmative
action, in the form of special provisions for ‘socially and educationally backward
classes of citizens or for Scheduled Tribes’, as a part of this right
 Article 17 (prohibition of untouchability in any form) are instances of specific areas
where the Constitution requires the state to take an affirmative and pro-active
approach
 Article 38 places a duty on the state to “secure a social order in which justice, social,
economic and political, shall inform all the institutions of the national life” and in
particular to minimise inequalities in income and eliminate inequalities in status
among individuals and amongst groups of people.
 Article 39 contains critical obligations on the state to direct its policy towards what has
come to be known as ‘distributive justice’, with respect to adequate means of
livelihood, ownership and control of material resources, minimisation of
concentration of wealth in the economic system, and so on.
 Article 46 contains an obligation on the state to promote the education and economic
interests of weaker sections, in particular the Scheduled Tribes, and also to protect
them from social injustice and all forms of exploitation.

4. FIFTH SCHEDULE
The term “Scheduled Areas” are those that are scheduled as such by a Presidential
Order under Paragraph 6 (1) of the Fifth Schedule, which states: “In this
Constitution, the expression ‘Scheduled Areas’ means such areas as the President
may by order declare to be Scheduled Areas”
The criteria for the declaration of any area as a Scheduled Area under the Fifth
Schedule as recommended by the First Scheduled Areas and Scheduled Tribes
Commission also known as

DHEBAR COMMISSION
The criteria for the declaration of any area as a Scheduled Area under the Fifth
Schedule as recommended by the First Scheduled Areas and Scheduled Tribes
Commission also known as Dhebar Commission are:
 Preponderance of tribal population
 Compactness and reasonable size of the area
 Under-developed nature of the area
 Marked disparity in the economic standard of the people.

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 A viable administrative entity such as a district, block or taluk

Brief outline of schedule areas:
 Paragraph 1 interprets the expression “State” for the purposes of this Schedule.
 Paragraph 2, Provides that subject to the provisions of the Schedule, executive power
of the State extends to the Scheduled Areas located in such State. This provision
makes it clear that the power of ‘administration and control’ of the state extends to
these areas. It has been held by the courts that the power of ‘administration and
control’ referred to in this clause is wide enough to embrace exercise of governmental
power of every description – executive, legislative and judicial.
 Paragraph 3 requires the Governor of the State, is vested with enormous legislative
powers, to make a report annually, or when required to do so by the President of
India, to the President regarding the administration of the Scheduled Area. It further
provides that the Executive power of the Central government will extend to the giving
of directions to the State government for the administration of these areas. This
provision is significant, as it makes a sharp divergence from the non-Scheduled Areas
where the executive power of the Centre extends only insofar as the subject matters
which fall within its legislative domain under the Seventh Schedule. In Scheduled
Areas, however, the executive power of the Central government extends to ALL
subject matters, even those which are within the domain of the State government.
 Paragraph 4 provides for the setting up of a Tribes Advisory Council (or ‘TAC’) to be set
up in each State where there are Scheduled Areas, and also in those States with a
significant tribal population, to give advice on matters relating to the welfare and
advancement of the Scheduled Tribes in these States. The TAC should have not more
than twenty members, of whom at least three-fourths must be drawn from the elected
representatives of the Scheduled Tribe communities in the State Legislature. Further,
if the number of elected representatives is less than twenty, then the remaining seats
can be filled with other members of the Tribal communities.
 Under Paragraph 5 the Governor has been empowered to direct, by public notification
that any particular Act of Parliament or of the State Legislature shall not apply to the
Scheduled Area of that state or shall apply subject to exceptions and modifications. It
also empowers the Governor to make Regulations to restrict or prohibit transfer of
land by or among members of Scheduled Tribes, regulate allotment of land, and also
moneylending, subject to the assent of the President.
 Paragraph 7 states that provisions in the Fifth Schedule may be amended, altered, or
repealed by Parliament, and no such amendment will be construed to be an
amendment to the Constitution under Article 368.

ROLE OF TRIBES ADVISORY COUNCIL

 Main function of the TAC is to provide advice to the Governor, when he seeks it, on
matters relating to “welfare and advancement of Scheduled Tribes” in the State. Thus,
the TAC does not render advice to the Governor Suo motu, but only when asked by
him to do so. Such advice is not binding upon the Governor.
 It is compulsory for Governor to consult TAC before making any Regulations relating
to governance in Scheduled Areas, including land alienation, land transfer, and control
of moneylending Unfortunately, Tribes Advisory Councils of most States have been
quite lack-lustre.
 Recently, Chhattisgarh Tribes Advisory Council Rules, 2006 were challenged in a writ
petition before the Bilaspur High Court. One of the grounds of challenge was the fact
that the quorum for a meeting was a mere 5 members (out of a total of twenty) and
that the Chief Minister was the Chairperson of the TAC.

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5. SIXTH SCHEDULE
Considering the distinct life and outlook of the tribals in the North-East (erstwhile State
of Assam), the Constituent Assembly recognised the necessity of a separate
administrative structure for the tribals in the region. Therefore, under Article 244(2) of
the Constitution, the Sixth Schedule makes special arrangement for the administration
of Tribal Areas in the States of Assam, Meghalaya, Mizoram and Tripura. One of the most
important provisions of the Sixth Schedule is that the tribal areas are to be administered
as Autonomous Districts and Autonomous Regions. Under the provision of the Sixth
Schedule, the Governor of the State is empowered to determine the area or areas as
administrative units of the Autonomous Districts and Autonomous Regions. The
Governor has the power to create a new Autonomous District/Region or alter the
territorial jurisdiction or the name of any Autonomous District or Autonomous Regions.

The North-Cachar Hills District (Dima Haolang), The Karbi-Anglong

Assam District,
The Bodoland Territorial Area District

Tripura Tripura Tribal Areas district

Mizoram Chakma, Mara and Lai District

Meghalaya Khasi, Jaintia and Garo Hills

ADMINISTRATIVE SET UP
Sixth Schedule has provision for the creation of Autonomous District Councils, and
Regional Councils endowed with certain legislative, executive, judicial and
financial powers. However, the administrative powers and functions of these
District Council and Regional Council differ from State to State.
Sixth Schedule, each Autonomous District shall have a District Council consisting
of not more than thirty members, out of which four are nominated by the
Governor while the rest are elected on the basis of adult franchise (Bodoland
Territorial Council is an exception; it can have up to forty-six members).

POWER OF THE AUTONOMOUS DISTRICT

 Legislative Power: Para 3 of the Sixth Schedule provides the provision for the District
Council and Regional Councils to make rules in respect of lands, management of forest
(other than the Reserved Forest), use of canal or water-course for agriculture,
regulation of jhum and other forms of shifting cultivation, establishment and
administration of village or town committees, appointment or succession of Chiefs or
Headmen, inheritance of property, marriage and divorce and social practice with the
prior approval of the Governor. Under Para 10 of the Schedule, the District Council of
an Autonomous District has the power to make law for the regulations and control of
money-lending or trading by any person other than Scheduled Tribe residents in that
Scheduled District. However, all laws made under this provision shall have no effect
until assented by the Governor of the State.
 Executive Power: The District Councils and Regional Councils are given the power to
establish, construct or manage primary schools, dispensaries, markets, cattle ponds,
fisheries, roads, road transport and waterways in the districts. The Councils are also
authorized to prescribe language and manner of instruction in the primary schools.
 Judicial Powers: District and Regional Councils are empowered to constitute Village
and District Council Courts for trial of suits and cases where all parties to the dispute
belong to Scheduled Tribes within the district. And no other courts except the High

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Courts and the Supreme Court has the jurisdiction over such suits or cases of the
Council Courts. However, these Council Courts are not given the power to decide cases
involving offences punishable by death or imprisonment for five or more years.
 Financial Power: They are empowered to prepare a budget for their respective
Council. Under Para 8 of Sixth Schedule, District and Regional Councils are
empowered to assess and collect land revenue and impose taxes on professions,
trades, animals, vehicles, taxes on entry of goods into the market for sale, toll on
passengers and goods carried in ferries and taxes for the maintenance of schools,
dispensaries or roads within their respective jurisdiction. And under Para 9 of the
Schedule, the Councils are given the power to grant licenses or leases for extraction
of minerals within their jurisdiction.

INCLUSION OF LADAKH IN SIXTH SCHEDULE

 In 2019, National Commission for Scheduled Tribes recommended inclusion of Ladakh
under Sixth Schedule, noting that the new UT was predominantly tribal (more than
97%), people from other parts of the country had been restricted from purchasing or
acquiring land there, and its distinct cultural heritage needed preservation.
 Notably, no region outside Northeast has been included in the Sixth Schedule. In fact,
even in Manipur, which has predominantly tribal populations in some places, the
autonomous councils are not included in the Sixth Schedule. Nagaland and Arunachal
Pradesh, which are totally tribal, are also not in the Sixth Schedule.
 “Ladakh’s inclusion in Sixth Schedule would be difficult. The Constitution is very clear,
Sixth Schedule is for the Northeast. For tribal areas in the rest of the country, there is
the Fifth Schedule. However, it remains the prerogative of the government — it can, if
it so decides, bring a Bill to amend the Constitution for this purpose.

CHALLENGES WITH THE SIXTH SCHEDULE

 A case of Meghalaya: The Sixth Schedule was incorporated to protect the rights of
the minority tribals living within a larger state dominated by the majority. But in these
largely tribal-dominated states, the indigenous enjoy overwhelming majority and a
major political voice, with 90 per cent of the Assembly seats (55 out of 60 in Meghalaya)
reserved for the tribal. Indeed, it is now the rights of minority non-tribals that need
protection. The existence of the Sixth Schedule in a full-fledged state with all powers
is thus not only unnecessary but also illogical.
 Siphoning of Funds: Dima Hasao district is under the scrutiny of NIA and CBI f or the
alleged misappropriation of over Rs 1,000 crore of government funds. The amount
was reportedly siphoned off to the coffer of the Dima Halam Daogah’s Jewel Garlosa
faction (DHD-J) for procurement of arms.
 Dilution of District Council: The Sixth Schedule was amended with the addition of
Article 12 (A). The insertion of Article 12 (A) has in a sense diluted the powers of the
district councils as laws passed by Parliament or by the state legislature has
supremacy over those passed by the district councils.
 Lack of Decentralisation: These areas lack political mobilization i.e. Mainstream
parties having regionalism, localism and communism as political ideology which has
drag down the developmental work. People here have low political participation.

125TH CONSTITUTION AMENDMENT BILL

 The Bill amends to provide for Village and Municipal Councils in addition to the District
and Regional Councils. Village Councils will be established for villages or groups of
villages in rural areas, and Municipal Councils will be established in urban areas of
each district

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 Further, the Bill states that the Governor may make rules for devolution of powers
and responsibilities to the Village and Municipal Councils. Such rules may be framed
in relation to: (i) preparation of plans for economic development, (ii) implementation
of land reforms, (iii) urban and town planning, and (iv) regulation of land-use, among
other functions.
 State Finance Commission: The Bill provides the appointment of a Finance
Commission for these states, to review the financial position of District, Village, and
Municipal Councils. The Commission will make recommendations regarding: (i)
distribution of taxes between states and District Councils, (ii) grants-in-aid to District,
Village, and Municipal Councils from the Consolidated Fund of the state, (iii) and
measures to improve the financial position of District, Village, and Municipal Councils.
 Elections to councils: The Bill states that all elections to the District Councils, Regional
Councils, Village Councils, and Municipal Councils will be conducted by the State
Election Commission appointed by the Governor, for these four states.
 Disqualification of members of councils: The Sixth Schedule provides that the
Governor may make rules for the constitution of District and Regional Councils,
including qualifications for being elected as members of these councils. The Bill adds
that the Governor may make rules for the disqualification of such members on the
grounds of defection.

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