GS MAINS PAPER-II

Polity
INDIAN CONSTITUTION: HISTORICAL UNDERPINNINGS, EVOLUTION, FEATURES,
AMENDMENTS, SIGNIFICANT PROVISIONS AND BASIC STRUCTURE

• Constitution = A document of people’s faith & aspirations possessing a special legal

sanctity. [The fundamental law of a country. It is the rulebook of a nation, which regulates
the society and its laws.]
• Functions of the constitution (Written or unwritten):
It re ects ideology and philosophy of a nation state + Expression of Basic Law +
provides an organisational framework for the government (Relationship b/w legislature,
executive and judiciary) + expresses the federal, confederation or unitary levels of the
govt + Provisions for amendment.
• CONSTITUTIONALISM implies that the exercise of political power shall be bound by
limitations, checks, controls and rules. It incorporates the principles of ‘limited
government’ and ‘rule of law’, as against arbitrary and authoritarian discharge of power.
• A limited government is a political system in which legalized governmental power is
restricted by law, usually the constitution.
• According to K C Wheare and W G Andrews, Constitutionalism implies—> Division of
powers + Acceptance of plurality of interests in society + No authoritative or
dictatorial leadership + Minimum constraints on individual freedom.
• According to Carl J Friedrich, the “division of powers” is the most important basis of
Constitutionalism. Constitutionalism may exist in a monarchy or republic, aristocracy or
democracy, if there is division of power.
• Constitutionalism in India includes the following principles—Written Constitution,
Responsible Government, Parliamentary Democracy, Rule of Law, Fundamental Rights,
Separation of Powers and Checks and Balances, Flexibility of Constitution and its Basic
Structure, A Federal Form of Government, Independent Judiciary and Judicial Review etc.

Note: The concept of Constitutionalism has been recognised by the Supreme Court in
Rameshwar Prasad v. Union of India. The Court stated, “The constitutionalism or
constitutional system of Government abhors absolutism-it is premised on the Rule of Law in
which subjective satisfaction is substituted by objectivity provided by the provisions of the
Constitution itself.”
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DEVELOPMENTS UNDER THE COMPANY RULE (1773-1858)
Regulating Act of 1773
• Governor of Bengal as Governor General of Bengal [1st-Warren Hastings]
• Created an Executive Council (1+4)
• Govr of Madras and Bombay made subordinate to G.G.o.Bengal (till the Charter Act,
1833)
• A Supreme Court was established as the Apex Court at Calcutta in 1774 (1CJ + 3 J)
• It has constitutional importance as it laid the principles of central administration in
India.
• Court of Directors (governing body of the Company) to report on its revenue, civil and
military a airs in India.

Pitt’s India Act of 1784

• Commercial and political functions of the company were separated (CoD—commercial
activities & BoC—political a airs)
• Board of Control in England (to supervise the East India Company's a airs)—consisted of
six members (1 SoS from the British cabinet + Chancellor of the Exchequer);
• It reduced the number of members of the Executive Council to 3 (including Commander-
in-Chief)
• It empowered the Board of Control to supervise and direct all operations of civil and
military revenues of the British possessions (evolution of dual government rule—by
Company and by a Parliamentary Board)
• The Company’s territories were for the rst time called ‘British possession in India’.
• The Act placed the civil and military government of the Company in due subordination
to the Government in England.

Charter Act (1813)

• No signi cant changes in administration of India;
• To diversify their trade away from Europe, British companies and merchants wanted to
end the EIC monopoly over trade with India. So, Charter Act ended Company’s monopoly
in trade with India. But not trade in tea and trade with China, which remained exclusively
with EIC.
• A provision that Company should invest Rs. 1 Lakh every year on the education of Indians
(not implemented)
• It empowered local governments to impose taxes and punish for their non-payment
subject to the jurisdiction of Supreme Court.
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Charter Act (1833) aka ‘Saint Helena Act’
• Governor-General of India replaced the GGoB and vested in him all the military and
civil powers. (Lord William Bentinck) All law-making powers transferred to him;
• Laws under previous acts were called as ‘Regulations’, while those under Charter Act,
1833 were called as ‘Acts’.
• It attempted to codify all the Indian Laws (directed the government to set up an Indian
Law Commission). Hence, India’s rst LC under Lord Macaulay.
• It tried to bring about a system of open competition for selection of Civil Servants
(opposed by CoD of company).

Charter Act (1853)

• Legislative and executive functions (GG Council) were clearly demarcated;
• Addition of 6 new members under a body called ‘Indian Legislative Council’ or
‘Central Legislative Council’. 4 out of 6 members were appointed by the provisional
governments of Madras, Bombay, Bengal and Agra. It marked the beginning of
Parliamentary system in India.
• It introduced an open competition system for selection and recruitment of civil
servants. (now open for Indians too). Macaulay Committee was set up to recommend
for enforcing the same in 1854.
• It introduced for the rst time, local (provincial) representation to Indian Legislative
Council. (4 members from Madras, Bombay, Bengal and Agra;

DEVELOPMENTS UNDER THE BRITISH CROWN’S RULE

Government of India Act (1858) [‘Act for the Good Government of India’]
• The rule of the company was ended and transferred the powers of government,
territories and revenues to the British crown. It did not change the system of
administration, but shifted the reigns of control and power to British crown.
• It ended the system of double government by abolishing the Board of Control and
Court of Directors;
• It established a new o ce of Secretary of State (SoS)—a member of the British Cabinet
& responsible to the British Parliament, for complete authority and control over Indian
administration. He was assisted by a 15-member Council (only advisory body) in India,
with SoS as its chairperson.

Indian Councils Act (1861)

• Indians were, for the 1st time, made a part of the law making process (SoS could now
nominate Indians as non-o cial members);
• Process of decentralization, by restoring powers to Bombay and Madras Presidency;
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• It provided for establishment of new legislative councils for Bengal (1862), NWFP
(1866) and Punjab (1897).
• It also gave recognition to the ‘portfolio’ system, introduced by Lord Canning in 1859.
• It empowered the Viceroy to issue ordinances.

Indian Councils Act (1892)

• Increased the no. of non-o cial members in the Central and provincial legislative
councils (but not majority);
• It increased the functions of legislative councils—Power of discussing budget was
granted & Questions could now be addressed to the Executive;
• The Act made a limited and indirect provision for the use of election in lling up some
of the non-o cial seats in both, Central and PLCs (element of election was introduced for
the 1st time).

Indian Councils Act (1909) or Morley-Minto Reforms

• Increased the number of seats of legislative councils, both at central (from 16 to 60)
and provincial levels;
• Members of legislative councils were given wider deliberative powers. They could now
ask supplementary questions, move resolutions on budget et al.
• It provided for a provision for Indians to participate in executive councils. Satyendra
Prasad Sinha became the rst Indian to become listed on the Viceroy’s Executive Council,
as the law member of the British ministry.
• It introduced the system of communal representation for Muslims by accepting the
concept of ‘separate electorate’. The Act ‘legalised communalism’ and Lord Minto came
to be known as Father of Communal Electorate.

Government of India Act (1919) [Montagu-Chelmsford Reforms]

• The objective was the gradual introduction of responsible government in India (Secretary
of state Montagu);
• Relaxation of central control over the provinces by demarcating the central and
provincial subjects. They were authorised to make laws on their respective subjects;
However, the basic government structure was largely centralised and unitary.
• Dyarchy was introduced at the level of provinces—transferred subjects (to be
administered by the Governor with the aid of ministers) and reserved subjects (to be
administered by the Governor and his Executive Council without being responsible to the
legislature);
• Bicameralism was introduced for the rst time, only at the central level;
• Direct elections were introduced for the rst time, with limited franchise based on
property, tax and education;
• Separation of central budget from provincial budget;
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• Establishment of a Public Service Commission, i.e Central Public Service Commission
was set up in 1926 (on recommendation of Lee Commission, 1923-24);
• Extended the principle of communal representation by providing separate electorates
for Sikhs, Indian Christians, Anglo-Indians and Europeans;

Note: As per GoI Act of 1919, British govt announced the appointment of 7-membered (all
British) Simon Commission to report on the condition of India under its new Constitution;
To consider its recommendations, British government announced 3 RTCs, which resulted in
the preparation of the ‘White Paper on Constitutional Reforms’. Later incorporated in the
GoI Act of 1935. This Act has a singularly important role to play in framing of the
Constitution in its current form.

Government of India Act (1935)

• It provided for the establishment of an All-India Federation* consisting of provinces
and princely states as units; It divided the powers between the Centre and units in terms
of three lists—Federal List, Provincial List and Concurrent List. Residuary powers were
given to the Viceroy. [*Federation never came into being];
• It abolished “Dyarchy” and replaced it with “Provincial Autonomy”. It introduced
responsible governments in provinces, that is, the Governor was required to act with
the advice of ministers responsible to the provincial legislature;
• It provided for adoption of dyarchy at the Centre (federal subjects were divided into
reserved subjects and transferred subjects, which did not come into operation at all);
• Bicameralism was introduced in six out of eleven provinces (U.P., Bihar, Assam,
Bengal, Madras and Bombay), others had only the Legislative Assembly.
• At the centre, the federal legislature consisted of two houses, the Council of States (a
permanent body, 1/3 of whose members were to retire every 3 years) and Federal
Assembly consisting of 260 and 375 members respectively.
• A Federal Court was established at the Centre.
Some other provisions—
• Formation of the provinces of Sindh and Orissa.
• It further extended the principle of communal representation by providing separate
electorates for depressed classes (scheduled castes), women, and labour (workers). It
extended the franchise and about 10 per cent of the total population got the voting right.
• The Secretary was normally not expected to interfere in the Indian a airs, which were to
be carried out by Governors;
• With respect to the changes brought in the Federal Government, the Viceroy remained its
head. (Powers concerning administration, legislation and nance)
• It provided for the establishment of a RBI to control the currency and credit of the
country.
• The Act created provisions for reserved subjects, to be looked after by the Viceroy
through Executive Councillors. Similarly, the transferred subjects were also to be under
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 the Viceroy, aided by Indian ministers, not more than 10 in number, selected from the
legislature.
• In case of the provincial government, the Governor carried on the administration with the
help of a council of ministers selected by him from among the members of the provincial
legislature.

CRITICAL ANALYSIS OF THE ACT:

It is said that the act was nothing but ‘sugar-coated quinine’—
• Proposed scheme for establishing a Federation failed as princely states did not join it.
• Though it introduced Dyarchy in the Centre and autonomy in Provinces, but the powers of
the elected or nominated members were limited. The Act had retained control of the
Central Government over the Provinces in a certain sphere.
The legislative powers of both the Central and Provincial Legislatures were subject to
various limitations and neither could be said to have possessed the features of a sovereign
Legislature. Consider, for instance, the following:—
• Apart from the Viceroy’s power of veto, a Bill passed by the Central Legislature was also
subject to veto by the Crown.
• The Viceroy might prevent discussion in the Legislature and suspend the proceedings in
regard to any Bill if he was satis ed that it would a ect the discharge of his ‘special
responsibilities’.
• Apart from the power to promulgate Ordinances during the recess of the Legislature, the
Viceroy had independent powers of legislation, concurrently with those of the Legislature.
Thus, he had the power to make temporary Ordinances as well as permanent Acts at any
time for the discharge of his special responsibilities.
• No bill or amendment could be introduced in the Legislature without the Viceroy’s
previous sanction, with respect to certain matters, e.g., if the Bill or amendment sought to
repeal or amend or was repugnant to any law of the British Parliament extending to India
or any Viceroy’s or Governor’s Act, or if it sought to a ect matters as respects which the
Viceroy was required to act in his discretion.

Communal Award
• After the 2nd RTC (1932), the British PM, Ramsay MacDonald gave his ‘Communal
Award’. According to it, separate representation was to be provided to the forward
castes, lower castes, Muslims, Buddhists, Sikhs, Indian Christians, Anglo-Indians,
Europeans and Dalits. The Dalits were assigned a number of seats to be lled by election
from special constituencies in which voters belonging to the Dalit community only could
vote. The award was opposed by Mahatma Gandhi, who fasted in protest against it. After
lengthy negotiations, Gandhi reached an agreement - called the Poona Pact - with Dr.
Ambedkar to have a single Hindu electorate, with Dalits having seats reserved within it.
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 Cripps Mission (1942)
Sir Sta ord Cripps (member of British parliament), in 1942 drafted the proposals of British
govt, which were to be adopted at the end of the Second World War, provided the Congress
and Muslim League could accept them.
Proposals were—
• Constitution of India was to be framed by a Constituent Assembly elected for the
purpose by the Indian people;
• Constitution should provide India, a dominion status;
• There should be one Indian Union comprising all the provinces and Indian states
• Any province (or Indian state) not accepting the Constitution would be free to retain its
constitutional position existing at that time, and with such a non-acceding province,
British Government could enter into separate constitutional arrangements.

Cabinet Mission (1946)

• Lord Clement Atlee sent a Cabinet Mission to India consisting of three Cabinet Ministers,
namely Lord Pethick Lawrence, Sir Sta ord Cripps and Mr. A.V. Alexander.
• The objective was to help India achieve its independence as early as possible, and to
set up a Constitutional Assembly. There was to be a Union of India, comprising both
British India and the States, having jurisdiction over the subjects of foreign a airs,
defence and communication.
• There was to be a Union of India, comprising both British India and the States, having
jurisdiction over the subjects of foreign a airs, defence and communication.

The Mountbatten Plan (1947)

• The plan for transfer of power to the Indians and partition of the country was laid down in
the Mountbatten Plan. It was given a formal shape by a statement made by the British
Government on June 3, 1947.

Indian Independence Act (1947)

On February 20, 1947, Clement Atlee, declared that the British rule in India would end by
June 30, 1948. Other provisions of the Indian Independence Act, 1947 were—
• End of British rule in India was declared independent and sovereign;
• Partition of India and Pakistan;
• Abolition of the post of Viceroy and appointment of a Governor-General for both India and
Pakistan;
• Empowering the Constituent Assemblies of both the dominions of India and Pakistan with
legislative and executive powers to frame and adopt a Constitution for their respective
nations.
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EVOLUTION PRIOR TO THE ADOPTION OF THE CONSTITUTION (PRE 1950 ERA)
• The task of framing the Constitution of a sovereign democratic nation is performed by a
representative body of its people (Constituent Assembly)
• The idea of Constituent Assembly was implicit in the demand for Swaraj made by the INC
as early as 1906;
• On March 15, 1946 Clement Atlee, the Labour Party’s Prime Minister categorically
admitted the right of Indians to frame their own Constitution.
• The Constituent Assembly, which had already been formed, went into action as per the
Cabinet Mission plan. Its total membership for entire India was 389, out of which 93
members were from the princely states and 296 were elected from the British Indian
provinces. [On December 11, 1946, the Indian National Congress elected Dr. Rajendra
Prasad as the permanent Chairman of the Constituent Assembly]
• The Constituent Assembly was a partly elected and a partly nominated body. The
members were elected indirectly by people in the provincial assemblies, who in turn had
been elected on the basis of a limited franchise
• Although, it was an indirectly elected body, yet it comprised of representatives of all
sections of Indian society - Hindus, Muslims, Sikhs, Parsis and Anglo-Indians.
• The Constituent Assembly appointed numerous committees, which were divided as:
major & minor committees.

Objective Resolutions
• The basic idea of the ‘Objective Resolutions’ was to lay down the fundamentals and
philosophy of the constitutional structure, which were moved by JLN in the assembly.
• The C.Ass declares its rm and solemn resolve to proclaim India being an independent
sovereign republic.
• Authority of independent sovereign India, its constituent parts and organs of presidency
shall be derived from its people. (Advocating Democracy)
• People shall be guaranteed justice and secured social, economic and political equality of
status of opportunity (advocated the Fundamental Rights)
• Adequate safeguards will be provided for minorities, backward and tribal areas and
depressed classes, and other backward classes. (Part X, Part XVI)
• Government at the centre shall maintain the integrity of the territory of the republic of
India and its sovereign rights on land, sea and air based on laws of civilised nations of the
world.
• The ‘Objectives Resolutions’ later became the basis of the Preamble of the
Constitution.

Enactment & Enforcement

• Dr. B.R. Ambedkar proposed a motion on 26th November, 1949 which has been
mentioned as the day ‘people of India in the Constituent Assembly adopted, enacted and
gave to themselves the Constitution of India’.
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 • January 26, 1950 was chosen as the ‘date of commencement’ on which the Constitution
came into force owing to its historic importance (although some provisions came into
force on 26th November, 1949 only).

Criticism of the Constituent Assembly:

• Not a Representative Body
• Not a Sovereign Body
• Domination of Congress members
• Lawyer-Politician Domination

EVOLUTION AS AN ONGOING PROCESS (1950 ONWARDS)

• A Constitution has to be a living thing, living not for one or two generations but for
succeeding generations of men and women. “A Constitution states, or ought to state, not
the rules of the passing hour, but the principles for an expanding future.”
• It is open to constant changes. Whether by ratifying the Constitution by a new
amendment, or by repealing an existent amendment
• Additionally, the Constitution is open to constant interpretation by the Supreme
Court. This feature allows the Supreme Court to accord such interpretations so as to
make the Constitution—Increasingly relevant to the time and tenor of the contemporary
reality & Re ect to maximum extent possible, needs and aspirations of the people.
• Thus, in a way the Constitution constantly evolves, just as a living organism would do,
learning from its experience and the surrounding environment.

SALIENT FEATURES OF THE CONSTITUTION OF INDIA

Lengthiest Written Constitution (470 articles in 25 parts, 12 schedules, and 5 appendices
+ 104 amendments of the Constitution);
• It was lengthy because it incorporated provisions from several other constitutions of the
world + elaborate centre-state relations in all aspects + state administration + make
provisions for issues particular to India.
• Written constitution is one which is found in legal documents duly enacted in the form of
laws. It is precise, de nite and systematic. It is the result of conscious and deliberate
e orts of people. It is framed by a representative body duly elected by people at a
particular period in history. A written constitution is generally rigid and a procedure
separate from that of enacting ordinary law is provided for its amendment or revision i.e. a
distinction between constitutional law and ordinary law is maintained.
• Unwritten constitution is the one in which no provisions or laws of the constitution are set
in writing but they are documented despite not being codi ed in a structured manner in a
single book. It consists of customs, conventions, traditions, and some written laws
bearing di erent dates. It is unsystematic, inde nite and un-precise. It is generally the
result of historical development. It is not made by a representative constituent assembly
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 at a de nite stage of history, nor is it promulgated on a particular date. It is, therefore,
sometimes called an evolved or cumulative constitution.

Blend of Rigidity and Flexibility

• Some parts of the Constitution can be amended by the ordinary law-making process of
Parliament. However, certain provisions can be amended, only when a Bill for that
purpose is passed in each House of Parliament by a majority of the Total majority of that
house and by a majority of not less than 2/3 of the members of that house p&v. SC has
identi ed the limited power of Parliament to amend the Constitution as part of basic
structure. In other words, parliament cannot amend each and every part of the
constitution.

A Democratic Republic
• Sovereignty rests with the people of India + Representatives, elected on the basis of UAF
+ Although, India is a sovereign republic, yet it continues to be a member of the
Commonwealth of Nations with the British Monarch as its head.

Parliamentary Sovereignty (parliamentary supremacy or legislative supremacy)

• It makes Parliament the supreme legal authority, which can create or end any law. Also,
the judiciary cannot overrule legislation and no Parliament can pass laws that future
parliaments cannot change.
• Parliamentary sovereignty is a principle of the UK Constitution. It makes Parliament the
supreme legal authority in the UK.
• The sovereign status of Indian Parliament is not absolute as in case of UK, because it is
subject to the provisions of the Constitution. (The Indian Parliament derives its authority
and power from the Constitution itself) The laws made by Parliament are also subject to
the power of judicial review of the Supreme Court.
• In India, the principle of supremacy of the Constitution has been adopted as against
the principle of supremacy of Parliament in UK.

Parliamentary Form of Government

• India has adopted the Westminster system (UK Model)—The executive is responsible to
the legislature, and remains in power only as long as it enjoys the con dence of the
legislature. CoM is collectively responsible to the House of People (Lok Sabha), and has
to resign when it loses the con dence of that house.
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Mixture of Federal and Unitary Features
• Federal State happens when—two sets of governments + distribution of powers
between the two + a written Constitution (supreme law of the land) + Independent
judiciary to interpret the Constitution and settle disputes between the centre and the
states.
• But, in spite of all these essential features of a federation, the Indian Constitution has
certain unitary tendencies. India Constitution provides for single citizenship (unlike USA’s
Dual Citizenship). There is also a single integrated judiciary for the whole country. The
provision of All India Services, like the Indian Administrative Service, the Indian Police
Service, and Indian Forest Service prove to be another unitary feature. During the time of
emergency, the Union Government becomes even more powerful and the Union
Parliament acquires the power of making laws for the states.
• Prof K.C. Wheare has remarked that Indian Constitution provides, "a system of
government which is quasi-federal, a unitary state with the subsidiary unitary features”.
• In S R Bommai case (1994), SC laid down that Constitution is federal and characterised
federalism as its ‘basic feature’.
• Prof. Alexanderowicz’s summarised all this—“India is a federation but a federation sui
generis”, i.e. a federation in a class of its own or a unique federation.
• India has "Cooperative federalism" with central guidance and state compliance, where
the centre competes with states and vice-versa, and states compete with each other in
their joint e orts to develop India.

Fundamental Rights
• Negative obligations of the state and act as limitations against the power of the state;
These fundamental rights are justiciable and the individual can move the higher judiciary
(HCs or SC)
• However, the Fundamental Rights in India are not absolute. Reasonable restrictions can
be imposed keeping in view the security and other requirements of the state and society.

Directive Principles of State Policy

• These principles are in the nature of directives to the government of the day to implement
them for establishing social and economic democracy in the country. Most of these
principles could help in making India a welfare state. Though not justiciable, these
principles have been stated as "fundamental in the governance of the country".

Fundamental Duties [Part IV (A)]

• Incorporated in the Constitution by the 42nd Amendment Act, 1976; Its purpose was to
remind the people that while enjoying their right as citizens, they should also perform their
duties.
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Secular State
• Neutral in matters of religion + makes no discrimination between individuals on the basis
of religion.

Independent, Impartial and Integrated Judiciary

• It acts as a protector of fundamental rights of Indian citizens and guardian of the
Constitution. It has the power of judicial review.

Single Citizenship
• It helps in promoting unity and integrity of the nation and promotes fraternity among
people of di erent regions.

Universal Adult Franchise (Article 326)

Emergency Powers
• The emergency powers are vested in the hands of the President of India. National
Emergency (Article352); Emergency in a State (Article 356) and Financial Emergency
(Article 360).

Separation of Powers
• It is a way of reducing the amount of power in any group’s hands, making it more di cult
to abuse.
• State power is not a single entity but rather a composite of di erent governmental
functions (i.e. L,E,J) carried out by state bodies independently of each other. The
legislature enacts laws; the executive enforces those laws; and the judiciary interprets
those laws.
• The Indian state represents a contemporary approach to the doctrine of separation of
powers. There is no strict separation of powers under our Constitution, both in principle
and practice.
• India, in fact, has also adopted the doctrine of checks and balances along with the
doctrine of separation of powers. Under this doctrine, separate branches of the
government viz. legislature, executive, judiciary are empowered to keep each other in
check.

“So far as the courts are concerned, the application of the doctrine (the theory of separation
of powers) may involve two propositions—That none of the three organs of Government,
Legislative Executive and Judicial, can exercise any power which properly belongs to either
of the other two; and that the legislature cannot delegate its powers.” —Dr. D.D Basu

Independent Bodies
• They are envisaged by the Constitution as the bulwarks of the democratic system of
Government in India. For eg— UPSC, CAG, ECI etc.
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Three Tiers of Government
• 73rd and 74th Constitutional Amendment Acts (1992) have added a third-tier of
government in form of Panchayats and Municipalities which is not found in any other
constitution of the world.

AMENDMENTS
“Addition of a provision on a new and independent subject, complete in itself and wholly
disconnected from other provisions, or to some particular article or clause, and is then used
to indicate an addition to, the striking out, or some change in that particular article or
clause”. [KVB Case, 1973]

Simple Majority of Parliament (out of scope of Art 368)

Majority of each House, present and voting (ordinary legislative process)
• Formation of new states and alteration of areas, boundaries or names of existing states.
• Creation or abolition of legislative councils in the states.
• Administration and control of scheduled areas and scheduled tribes.
• The salaries and allowances of the Supreme Court and High Court judges.
• Laws regarding citizenship.

Special Majority of the Parliament

• Majority of the ‘total membership’ (total number of members comprising the house
including the vacancies or absentees) of each house + Majority of two-third of the
members of each House present and voting
• Fundamental Rights, Directive Principles of State Policy and All other provisions which are
not covered by the rst and third categories.

Special Majority of the Parliament and consent of States

Special Majority of the Parliament + Consent of half of the State Legislatures (not all states
have to participate) by a simple majority; There is no time limit within which the states
should give their consent!
• Manner of election of the President
• Matters relating to the executive power of the Union and the states
• Representation of the States in Parliament
• Matters relating to the Supreme Court and High Courts
• Distribution of legislative powers between the union and the states
• Any list in the Seventh Schedule
• Provisions of Article 368 relating to the procedure for amendment of the Constitution
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 SOURCES OF THE CONSTITUTION
From UK • Nominal Head – President (like Queen)
• Cabinet System of Ministers
• Post of PM
• Single Citizenship
• Parliamentary Type of Government
• Bicameral Parliament
• Lower House more powerful
• Council of Ministers responsible to Lower House
• Power of Lok Sabha Speaker
• Prerogative writs
• Parliamentary privileges
From USA • Written Constitution
• Executive head of state known as President and his being
the Supreme Commander of the Armed Forces
• Vice- President as the ex-officio Chairman of Rajya Sabha
• Fundamental Rights
• Supreme Court
• Provision of States
• Independence of judiciary and judicial review
• Preamble
• Removal of Supreme court and High court Judges
From USSR • Fundamental Duties & The ideal of justice (social,
economic and political) in the Preamble
From Australia • Concurrent list
• Language of the preamble
• Provision regarding trade, commerce and intercourse
• The joint sitting of the two Houses of Parliament
From Japan • Law on which the Supreme Court function
• Procedure Established by Law
From Weimar Constitution of Germany • Suspension of Fundamental Rights during the emergency
From Canada • Scheme of federation with a strong centre
• Distribution of powers between centre and the states and
placing.
• Residuary powers with the centre
From Ireland • Concept of Directive Principles of States Policy (Ireland
borrowed it from SPAIN)
• Method of election of President
• Nomination of members in the Rajya Sabha by the
President
From South Africa • Procedure of amendment with a two-thirds majority in
Parliament
• Election of members of Rajya Sabha
From GoI 1935 • Federal Scheme
• Office of governor
• Judiciary
• Public Service Commissions
• Emergency provisions
• Administrative details
 SEPARATION OF POWERS
• It is an organisational structure in which responsibilities, authorities, and powers are
divided between groups rather than being centrally held.
• The intent of this doctrine is to prevent abuses of power and avoid autocracy.
• Separation of powers, therefore, refers to the division of government responsibilities
into distinct branches to limit any one branch from exercising the core functions of
another.
• Aristotle understood the divergence between making law and implementing law, and
articulated a crude separation between the legislative and executive branches of the
government. Aristotle believed that any single form of government was unstable leading
to a permanent cycle of disasters.
• Montesquieu was an 18th century French social and political philosopher who coined the
term "trias politica" or "separation of powers" in his his book, “De l’Esprit des Lois” (i.e.
the Spirit of Laws), 1748.
• Between 16-18th Centuries, the doctrine of separation of powers occupied an upper
hand in the struggle of the bourgeoisie against absolutism and the arbitrary rule of
kings (i.e. feudal monarchy).

Traditional (Classical) Approach to “Separation of Powers”

• Montesquieu’s Strict Doctrine (Tripartite System)—governmental institutions conform
to this natural division between the functions of creating law, enforcing law, and
adjudicating disputes arising under the law.
• Montesquieu saw three distinct forms of law, each corresponding to a separate
governmental function. Law of nations (promote public security, conduct foreign
relations, and declare war rests with the executive), Political Law (power to make
temporary or permanent laws and rests with the legislature) & Civil Law (power to
adjudicate civil and criminal matters and rests with the judiciary).
• Montesquieu recognised that only through a system of ‘Checks’ can this separation of
power be maintained. Montesquieu favoured an absolute check upon the legislature
through an executive veto. However, under his theory, the legislature enjoys no
commensurate check over the executive.
• Legislature should not appoint members of the Executive; and for the same reason the
Executive should not have a role in electing members of the Legislature. Neither the
Executive nor the Legislature should appoint members of the Judiciary.
• It is the people who should elect members of executive, legislature and judiciary.

Modern (Contemporary) Approach to “Separation of Powers”

It tried to re ne Montesquieu’s strict doctrine of separation of powers and thus advocates
for a ‘mixed government’ or ‘weak separation of powers’ with ‘checks and balances’ to
prevent abuses.
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 Limitation of Montesquieu’s Strict Doctrine—constitutional deadlock (disunity of powers)
+ theory is based on the assumption that all the three organs of the government are equality
important + impractical to expect each branch of government to raise its own nances.

Separation of Power in USA

• They have more rigid separation of powers; the constitution provides a list of permissible
and prohibited actions for Congress.
• The Executive Power shall be vested in a President of USA.
• Checks and balances allow for a system based regulation that allows one branch to limit
another, such as the power of Congress to alter the composition and jurisdiction of the
federal courts.
• The lawmaking power of the Congress is checked by the President through its veto
power, which in turn maybe overturn by the legislature.
• The Congress may refuse to give its concurrence to an amnesty proclaimed by the
President and the Senate to a treaty he has concluded.
• The President may nullify a conviction in a criminal case by pardoning the o ender.
• The Congress may limit the jurisdiction of the Supreme Court and that of inferior courts
and even abolish the latter tribunals.
• The Judiciary in general has the power to declare invalid an act done by the Congress,
the President and his subordinates, or the Constitutional Commissions.

Separation of Power in England (weak separation)

• The executive forms a subset of the legislature. The judiciary also formed its part until the
establishment of the Supreme Court (SC) of the UK.
• The Prime Minister (PM), the Chief Executive, sits as a member of the Parliament, either in
the House of Lords or as an elected member of the House of Commons and can
e ectively be removed from o ce by a simple majority vote.
• The UK follows the principle of Parliamentary sovereignty which limits the scope for
judicial review by the courts.
• In 2005, the Constitutional Reform Act separated the powers with Legislative functions
going to an elected Lord Speaker and the Judicial functions going to the Lord Chief
Justice.

Doctrine of Separation of Powers in India

• Our model represents a contemporary approach in constitutionalising the doctrine of
separation of powers. Essentially, there is no strict separation of powers under the
Indian Constitution, both in principle and practice—
• In India, the Constitution is supreme and any legislation contrary to constitutional
provisions is void.
• Like the Westminster model, there is no ‘real’ separation per se, between the legislature
and the executive authorities under our Constitution.
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• Indian Constitution goes far as to provide for a functional overlap between the
legislative, executive and the judicial wings of the government. For instance, Judiciary
often discharges quasi-legislative or executive functions.

#The Constitution of India lays down a functional separation of the organs of the State in the
following manner—
• Article 50 lays down that State shall take steps to separate the judiciary from the
executive. This is for the purpose of ensuring the independence of judiciary.
• Article 122 and 212 provides validity of proceedings in Parliament and the State
Legislatures cannot be called into question in any court. This ensures the separation and
immunity of the legislatures from judicial intervention on the allegation of procedural
irregularity.
• Judicial conduct of a judge of the Supreme Court and the High Courts’ cannot be
discussed in the Parliament and the State Legislatures, according to Article 121 and 211
of the Constitution.
• Articles 53 and 154 respectively, provide that the executive power of the Union and the
State shall be vested with the President and the Governor and they enjoy immunity from
civil and criminal liability.
• Article 361 declared that the President or the Governor shall not be answerable to any
court for the exercise and performance of the powers and duties of his o ce.

Functional overlap between Legislature and Judiciary:

• The legislature besides exercising law-making powers exercises judicial powers in
cases of breach of its privilege, impeachment of the President and the removal of the
judges.
• Legislature exercising judicial powers in the case of amending a law declared ultra vires
by the Court and revalidating it.
• While discharging the function of disqualifying its members and impeachment of the
judges, the legislature discharges the functions of the judiciary.
• Legislature can impose punishment for exceeding freedom of speech in the Parliament;
this comes under the powers and privileges of the parliament. But while exercising such
power it is always necessary that it should be in conformity with due process.
• The Constitution permits, through Article 118 and Article 208, the Legislature at the
Centre and in the States respectively, the authority to make rules for regulating their
respective procedure and conduct of business subject to the provisions of this
Constitution.
• Judiciary also acts as a legislature while making laws regulating its conduct and rules
regarding disposal of cases.
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Functional overlap between Executive and Legislature:
• If the President or the Governor, when the legislature or is not in session and is satis ed
that circumstances exist that necessitate immediate action may promulgate ordinance
which has the same force of the Act made by the Parliament or the State legislature.
• The heads of each governmental ministry is a member of the legislature, thus making the
executive an integral part of the legislature.
• The council of ministers on whose advice the President and the Governor acts are elected
members of the legislature.
• The executive also exercises law making power under delegated legislation.

Functional overlap between Executive and Judiciary:

• The tribunals and other quasi-judicial bodies which are a part of the executive also
discharge judicial functions. Administrative tribunals which are a part of the executive also
discharge judicial functions.
• The executive may further a ect the functioning of the judiciary by making appointments
to the o ce of Chief Justice and other judges.
• Higher administrative tribunals always have a member of the judiciary.

This clearly indicates that the Indian Constitution does not provide for absolute separation of
powers. Instead, it creates a system consisting of the three organs of Government and
confers upon them both exclusive and overlapping powers and functions.

Judicial Pronouncements on the Doctrine in India

• In the “In Re Delhi Laws Act case”, 1951 it was for the rst time observed by the
Supreme Court that except where the Constitution has vested power in a body, the
principle that one organ should not perform functions which essentially belong to others
is followed in India. This judgment implied that all the three organs of the State, i.e., the
Legislature, the Judiciary, and the Executive are bound by and subject to the provisions of
the Constitution.
• Kesavananda Bharti case, 1973—the doctrine of “separation of powers” is
acknowledged as an integral part of the basic features of our Constitution.
• Indira Nehru Gandhi v. Raj Narain, 1975—In the Indian Constitution, there is separation
of powers in a broad sense only.
• In I.C. Golak Nath v. State of Punjab, 1967 Supreme Court took the help of doctrine of
basic structure as propounded in KVB case (1973) and said that Ninth Schedule is
violative of this doctrine and hence the Ninth Schedule was made amenable to judicial
review which also forms part of the basic structure theory.
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 CHECKS & BALANCES
• A system that allows each branch of a government to amend or veto acts of another
branch so as to prevent any one branch from exerting too much power. It arose as an
outgrowth of the classical theory of separation of powers.
• Under the system of checks and balances, one department is given certain powers by
which it may de nitely restrain the others from exceeding constitutional authority.
• Checks on Judiciary: The Judges of the SC & HCs in the States are appointed by the
executive i.e. the President acting on the advice of the PM and the CJI of SC. But they
may be removed from o ce only if they are impeached by Parliament. This measure helps
the judiciary to function without any fear of the executive.
• Checks on Executive: The executive is responsible to Parliament in its day to day
functioning. While the President appoints the leader of the majority party or a person who
s/he believes commands a majority in the Lok Sabha a government is duty bound to lay
down power if the House adopts a motion expressing no con dence in the government.
• Checks by Judiciary on Legislature and Executive: The judiciary keeps a check on the
laws made by Parliament and actions taken by Executives, whether they conform to the
Constitution or not, using the tool of Judicial Review.

JUDICIAL REVIEW (JR)

• The power of the judiciary to interpret the constitution and to declare any such law or
order of the legislature and executive void, if it nds them in con ict the Constitution of
India. It enables the courts to determine the constitutional validity of the laws and rules of
the government.
• Some importance of the Judicial Review—Maintain supremacy of the Constitution +
Check misuse of power by legislature and executive + Protect rights and maintain federal
balance + Strengthen judiciary + Ful ll constitutional duties.
• Criticism of JR—Undemocratic + Lack of Clarity + Source of Administrative Problems +
reactionary system (while determining the constitutional validity of a law, the Courts often
adopts a legalistic and conservative approach) + Tends to make the Parliament less
responsible + Fear of Judicial Tyranny + Reversal of its own decisions.

CONCLUSION:
The Doctrine of Separation of Powers in its true sense is very rigid, that’s why it is not being
used in most nations. The main object as per Montesquieu in the Doctrine of Separation of
Power is that there should be government of law rather than having will and whims of the
o cial. The modern day interpretation of the doctrine provides for establishment of a
system of checks and balances. Therefore, a system of checks and balances is a practical
necessity in order to achieve the desired ends of the doctrine of separation of powers. India
relies heavily upon the doctrine in order to regulate, check and control the exercise of power
by the three organs of government. Whether it is in theory or in practical usage, the Doctrine
of Separation of Powers is essential for the e ective functioning of a democracy like India.
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 GS MAINS PAPER-II
Polity
THE PREAMBLE

It is the introduction or preface to the Constitution, which contains the summary or essence of it.
The ideals behind the Preamble were laid down by JLN’s Objectives Resolution, adopted by
the Constituent Assembly on January 22, 1947.
Key words in Preamble—SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC,
REPUBLIC, JUSTICE (social, economic and political), LIBERTY (thought, expression, belief,
faith and worship), EQUALITY (status and of opportunity), FRATERNITY.

Sovereign
Independent authority of a State + not subject to the control of any external power. India’s
declaration to continue her full membership of the Commonwealth of Nations in 1949 does not
affect India’s sovereignty in any manner. It is a voluntary declaration and indicates a free
association and no obligation. “Globalisation is not a dilution of sovereignty, but a
modification of the manner in which sovereignty is exercised”.

Socialist
Indian Socialism is ‘democratic Socialism’, influenced by Fabianism. It is a peaceful gradual
transformation of the society in participation with the state and not against the state. Instead of a
total nationalisation of all property and industry, it envisages a ‘mixed economy’, where both
private and public sector grow side by side. There are some claims that India is regressing from
its Socialist Agenda—Adoption of neo-liberal economic policy, Post 1991 shift from socialism
to privatisation, Post 1991 Jobless Growth Scenario & the Failure of State to end mass poverty.

Secular
It was added by 42nd Amendment Act of 1976. In Indian context, the Secular State means the
State protects all religions equally and does not uphold any religion as the State religion.
Constitutional Provisions Regarding Secularism—Indian State has no Religion, Articles 14, 15
and 27 establish the secular nature of the state. Religion is subordinate to the state rather than the
state being subordinate to the religion (the state can interfere in religious affairs for the purpose
of social reforms). Special protection is granted to the minorities with respect to the conservation
of their culture and traditions.
Democratic
Democratic not only from a political standpoint but also from a social standpoint (Democratic
Govt as well as Democratic Society), infused with the spirit of ‘justice, equality and fraternity’.
Our Constitution prescribes for a ‘Representative Democracy’. For instance, Council of
Ministers is collectively responsible to the people’s representatives in the respective
Legislatures. Parliamentary democracy envisages the following—Representation of People +
Responsible Government + Accountability of the CoM to the Legislature.

Republic
Preamble declares that source of all authority under the Constitution is the people of India and
there is no subordination to any external authority.

Liberty
It means an absence of restraints on the activities of individuals and at the same time, providing
opportunities for the development of individual personalities. However, there are certain
limitations placed on Liberty by the Constitution.

Equality
It means absence of special privileges to any section of the society and the provision of adequate
opportunities for all individuals without any discrimination. Civic equality (Art 14, 15, 17, 18);
Political equality (Art 325, 326) & Economic equality (Art 16, 39).

Fraternity
It means a sense of brotherhood. It is promoted by the Constitution by a system of Single
Citizenship. It is also supported by Fundamental Duties (Art. 51A). The fraternity assures two
things – the dignity of the individual and the integrity (added by 42nd CA 1976) of the nation.
The phrase ‘unity and integrity of the nation’ embraces both psychological and territorial
dimensions of national integration.

Justice
It involves fair, moral, and impartial treatment of all persons. Social justice denotes equal
treatment of all citizens without any distinction based on caste, colour, race, religion, sex and so
on. Economic justice denotes non-discrimination between people on the basis of economic
factors like wealth, income and property. Political justice implies that all citizens should have
equal political rights, equal access to all political offices and equal voice in the government. This
idea of Justice is taken from Russian Revolution.
 GS MAINS PAPER-II
Polity
UNION AND ITS TERRITORY (Art. 1-4)

Article 1
Article 1(1) – India, that is Bharat, shall be a Union of States. Article 1(2) – The states and
territories thereof shall be as specified in the First Schedule. Article 1(3) – The territory of India
shall comprise—The territories of the States, The Union territories specified in First Schedule;
and Such other territories as may be acquired. The term “Union” better expresses the fact that
the Union of India is not the outcome of an agreement among the old provinces and it is not
open to any State or a group of States to secede from the Union or to vary the boundary of their
States on their own free will. The Federation is a Union because it is indestructible. The
expression ‘Union of India’ should be distinguished from the expression ‘Territory of India’.
While the former includes only states which enjoy the status of being member of the federal
system and share a distribution of powers with the Union, the “territory of India” includes the
entire territory over which the sovereignty of India, for the time, extends and such territories are
directly administered by the Central Government.

Article 2
There are two powers given to Parliament by Article 2, namely—The power to admit new States
into the Union; and The power to establish new States. Parliament admitted the French
settlements of Pondicherry, Karaikal, etc. by using this power. Article 2 gives complete
discretion to Parliament to admit or establish new States on such terms and conditions as “it
thinks fit”.

Article 3
Parliament may by law—Form a new State by separation of territory from any State or by
uniting two or more States or parts of States or by uniting any territory to a part of any State;
Increase the area of any State; Diminish the area of any State; Alter the boundaries of any State;
Alter the name of any State. The Bill introduced to do so—It shall be introduced in either House
of Parliament only on the recommendation of the President. Bill has to be referred by the
President to the Legislature of the State for expressing its views thereon. The President (or
Parliament) is not bound by the views of the State Legislature and may either accept or reject
them, even if the views are received in time.
Article 3 empowers the Parliament to alter the territory or integrity of the states without their
consent or concurrence, which differentiates the Indian Federal system with that of the
traditional system. Therefore, India is rightly described as “an indestructible Union of
destructible states”. American Federation has been described as “an indestructible Union of
indestructible States” because the agreement between independent states could not be altered
without the consent of states, who are party to it.

Article 4
Laws made under Articles 2 and 3 to provide for the amendment of the First and Fourth
Schedule or containing supplemental, incidental and consequential provisions are not to be
deemed to be an amendment of this Constitution for the purposes of the Article 368. This means
that such laws can be passed by a simple majority and by the ordinary legislative process.
As stated by Supreme Court in Berubari Union case, an Indian territory can be ceded to a
foreign power only by a constitutional amendment under Art 368. The Supreme Court held that
the power of Parliament to diminish the area of a state (under Article 3) does not cover cession
of Indian territory to a foreign country.

British India had two types of territories—Provinces, governed directly by British Officials who
were responsible to the Governor- General of India & Princely states under the control of local
hereditary rulers having British government as the sovereign but enjoying autonomy based on
treaty. During the period 1947-50, these states were politically integrated into the Indian Union
by either merging with the existing provinces or by organising into new provinces. i.e. on 26th
January 1950, when the new constitution came into existence, the constituent units of Indian
Union were classified into four classes—Part A, B, C, D.

Dhar Commission (S.K. Dhar) was set up in 1948, to question the reorganisation of states. It
recommended that the reorganisation of the states should be on the basis of administrative
convenience rather than on linguistic basis. A high level committee called Linguistic Provinces
Committee – consisting of JLN, Vallabhbhai Patel and Pattabhi Sitaramiah (JVP Committee)
was set up, proceeding with the proposal for the linguistic reorganisation of States. JLN
appointed the States Reorganisation Commission (1953), under the chairmanship of Fazl Ali.

Recommendations of Fazl Ali Committee:

• States are to be formed on the basis of linguistic and cultural unity
• Creation of states should strengthen and preserve national unity
Formation of new states should also be governed by financial, admn and economic viability
• It should aid the process of implementation of Five Year Plans.
The reorganisation of existing state boundaries since the consolidation of Indian Union in 1950
can be broadly classified under three broad waves of reorganisation—
• The first major reorganisation occurred in 1956 following a nationwide movement for the
creation of linguistically compact provinces. Kashmir had already been incorporated within
the Indian union based on the special status granted to it by Article 370.
• The second major initiative came in the 1970s, when the Northeast was split up and several
new states were created following the establishment of Nagaland in 1963.
• The third phase marked the creation of Jharkhand, Uttaranchal and Chhattisgarh in the
Northern provinces of India.

Should Statehood be granted to Delhi?

YES NO
• In 1991, when the 69th Amendment created the • The support for full statehood has not been a national
Legislative Assembly of Delhi, the city’s compulsion, but a call fuelled by Delhi’s local
population was much smaller. Today, there are political ambitions and Delhi is the national capital
nearly two crore people in Delhi and nowhere in and must necessarily be viewed from the prism of the
any democracy are two crore people represented interests of the entire country.
by a government with restricted powers. • Delhi is home to vital institutions such as the
• With time, Goa, Manipur, Himachal Pradesh and president’s estate, the Parliament and foreign
Tripura have also been granted statehood after embassies which are the sole responsibility of the
some transition time Union Government and not of any one particular state
• It would also provide equal right of people for legislative assembly
representation and self-governance. • Indian government must have some territory under its
• An elected government representing a massive control; it cannot possibly be an occupant or a tenant
population need to have a say in law and order and of a state government.
land management. • India’s national capital belongs to every citizen of the
country and not just those who reside in the city.

Issues in Reorganisation of States

• Demand for New States - Is it a Threat to the Unity of the Nation?
• Is There a Need for 2nd State Reorganisation Commission?
• Answer to questions like Does India Need More States? Or Does Small State Mean Better
Governance? Or Alternatives to Creation of New States? Or Who Should Decide if New
States are to be Created? Or Adjudicating the Existing Demands of Statehood
• Gorkhaland Issue
 FUNDAMENTAL RIGHTS Student Notes:

Contents
1. Concept of Rights ....................................................................................................................... 3
2. Categories of Rights ................................................................................................................... 4
2.1. Natural Rights ...................................................................................................................... 5
2.2. Human Rights ...................................................................................................................... 5
2.3. Legal rights .......................................................................................................................... 5
2.4. Constitutional Rights ........................................................................................................... 5
2.5. Civil and Political Rights....................................................................................................... 5
2.6. Negative and Positive Rights ............................................................................................... 6
3. Understanding Fundamental Rights........................................................................................... 6
4. Evolution of Fundamental Rights ............................................................................................... 6
5. Classes of Fundamental Rights ................................................................................................... 7
6. Details of Fundamental Rights ................................................................................................... 8
6.1. Article 12 – Definition of State ............................................................................................ 8
6.1.1. Text ............................................................................................................................... 8
6.1.2. Description ................................................................................................................... 8
6.2. Article 13 ........................................................................................................................... 11
6.2.1. Description ................................................................................................................. 11
6.2.2. Judicial Review ........................................................................................................... 12
6.2.3. Doctrine of Eclipse ..................................................................................................... 12
6.2.4. Doctrine of Severability .............................................................................................. 12
6.2.5. Doctrine of Waiver ..................................................................................................... 13
6.2.6. Doctrine of Basic Structure ........................................................................................ 14
6.2.7. Doctrine of Prospective Over-Ruling .......................................................................... 14
6.3. Article 14 – Right to Equality ............................................................................................. 14
6.3.1. Text ............................................................................................................................. 14
6.3.2. Description ................................................................................................................. 15
6.4. Article 15 – Right against Discrimination on Certain Grounds .......................................... 15
6.4.1. Text ............................................................................................................................. 15
6.4.2. Applicability ................................................................................................................ 16
6.4.3. Exceptions .................................................................................................................. 16
6.4.4. Reservation Policy ...................................................................................................... 17
6.5. Article 16- Right to Equality of Opportunities in Matters of Public Employment ............. 20
6.5.1. Text ............................................................................................................................. 20
6.5.2. Applicability ................................................................................................................ 21
6.5.3. Exceptions .................................................................................................................. 21
6.5.4. Issue of reservation in promotions ............................................................................ 22
6.5.5 Issue of Local Reservation in Private Sector Jobs ........................................................ 23
6.5.6 Job Reservations, Promotion Quotas Not A Fundamental Right ................................ 25
6.6. Article 17 – Abolition of Untouchability............................................................................ 26
6.6.1. Text ............................................................................................................................. 26
6.6.2. Description ................................................................................................................. 26
6.6.3. The Protection of Civil Rights Act, 1955 ..................................................................... 27
6.6.4. The Schedule Caste and Schedule Tribe Prevention of Atrocities Act, 1989 ............. 27
6.7. Article 18 ........................................................................................................................... 28
6.7.1. Text ............................................................................................................................. 28
6.7.2. Description ................................................................................................................. 28
6.7.3. Case of Bharat Ratna and Padma Awards .................................................................. 28
6.8. Article 19 – Right to Freedom ........................................................................................... 28
6.8.1. Text ............................................................................................................................. 28

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6.8.2. Applicability ................................................................................................................ 28 Student Notes:

6.8.3 Freedom of Speech and Expression ............................................................................ 29
6.8.4. Freedom of Assembly................................................................................................. 29
6.8.5. Freedom of Association ............................................................................................. 29
6.8.6. Freedom of Movement .............................................................................................. 30
6.8.7. Freedom of Residence ............................................................................................... 30
6.8.8. Freedom of Profession ............................................................................................... 30
6.9. Article 20- Protection in respect of Conviction for Offences ............................................ 38
6.9.1. Text ............................................................................................................................. 38
6.9.2. Description ................................................................................................................. 38
6.9.3. Controversies ............................................................................................................. 38
6.9.4. Applicability ................................................................................................................ 39
6.10. Article 21 – Right to Life and Liberty ............................................................................... 39
6.10.1. Text ........................................................................................................................... 39
6.10.2. Description ............................................................................................................... 39
6.10.3. Due Process of Law .................................................................................................. 39
6.10.4. Status in India ........................................................................................................... 40
6.10.5. Impact of National Emergency and Applicability ..................................................... 41
6.10.6. Right to Death/Suicide ............................................................................................. 41
6.10.7. Death Penalty/Capital Punishment .......................................................................... 41
6.10.8. Right to Privacy ........................................................................................................ 41
6.10.9. Euthanasia/Mercy killing .......................................................................................... 42
6.10.10. Right to choose ...................................................................................................... 43
6.11. Article 21A ....................................................................................................................... 44
6.11.1. Text of Right to education ........................................................................................ 44
6.11.2. Description/Historical Evolution .............................................................................. 44
6.11.3. 86th Amendment Act ................................................................................................ 44
6.11.4. Evaluation of RTE...................................................................................................... 45
6.11.5. Applicability.............................................................................................................. 46
6.12. Article 22- Protection against Arrest and Detention in Certain Cases ............................ 46
6.12.1. Text ........................................................................................................................... 46
6.12.2. Description ............................................................................................................... 46
6.12.3. Legislations ............................................................................................................... 47
6.12.4. Court Judgments ...................................................................................................... 47
6.13. Article 23 – Prohibition of Traffic in Humans and Forced Labor ..................................... 47
6.13.1. Text ........................................................................................................................... 47
6.13.2. Description ............................................................................................................... 48
6.13.3. Legislations ............................................................................................................... 48
6.13.4. Applicability.............................................................................................................. 48
6.14. Article 24 – Prohibition of employment of children ....................................................... 48
6.14.1. Text ........................................................................................................................... 48
6.14.2. Description ............................................................................................................... 48
6.14.3. Legislations ............................................................................................................... 48
6.14.4. Applicability.............................................................................................................. 49
6.15. Article 25 ......................................................................................................................... 49
6.15.1. Description ............................................................................................................... 50
6.15.2. Applicability.............................................................................................................. 50
6.15.3. Important Judgments ............................................................................................... 51
6.16. Article 26 ......................................................................................................................... 52
6.16.1. Text ........................................................................................................................... 52
6.16.2. Description ............................................................................................................... 52
6.16.3. Relation with Article 25 ............................................................................................ 52
6.16.4. Sabarimala Temple Issue .......................................................................................... 52

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6.17. Article 27 ......................................................................................................................... 54 Student Notes:

6.17.1. Text ........................................................................................................................... 54
6.17.2. Description ............................................................................................................... 54
6.18. Article 28 ......................................................................................................................... 54
6.18.1. Text ........................................................................................................................... 54
6.18.2. Description ............................................................................................................... 55
6.19. Article 29 ......................................................................................................................... 55
6.19.1. Text ........................................................................................................................... 55
6.19.2. Description ............................................................................................................... 55
6.19.3. Applicability.............................................................................................................. 55
6.20. Article 30 ......................................................................................................................... 55
6.20.1. Text ........................................................................................................................... 55
6.20.2. Description ............................................................................................................... 56
6.20.3. Relation between Article 29 and 30 ......................................................................... 56
6.20.4. Applicability.............................................................................................................. 56
6.20.5. Minority Educational Institutions............................................................................. 56
6.20.6. Important judgments ............................................................................................... 59
6.20.7. The Lacuna ............................................................................................................... 60
6.21. Article 31 ......................................................................................................................... 60
6.22. Article 31A ....................................................................................................................... 62
6.23. Article 31B – Validation of Certain Acts and Regulations................................................ 62
6.23.1. Controversy with respect to IX Schedule ................................................................. 63
6.24. Article 31C- Saving of laws giving effect to directive principles ...................................... 63
6.25. Article 32 ......................................................................................................................... 63
6.25.1. Text ........................................................................................................................... 63
6.25.2. Description ............................................................................................................... 64
6.25.3. Doctrine of Laches.................................................................................................... 64
6.25.4. Doctrine of Res Judicata ........................................................................................... 64
6.25.5. Writs ......................................................................................................................... 65
6.25.6. Importance of Article 32 .......................................................................................... 66
6.25.7. Article 32(3).............................................................................................................. 66
6.25.8. Article 32(4).............................................................................................................. 66
6.26. Article 33 ......................................................................................................................... 66
6.26.1. Text ........................................................................................................................... 66
6.26.2. Description ............................................................................................................... 67
6.27. Article 34 ......................................................................................................................... 67
6.27.1. Text ........................................................................................................................... 67
6.27.2. Description ............................................................................................................... 67
6.28. Article 35 ......................................................................................................................... 68
6.28.1. Text ........................................................................................................................... 68
6.28.2. Description ............................................................................................................... 68
7. Are Fundamental Rights Absolute............................................................................................ 69
8. Criticism of Fundamental Rights .............................................................................................. 69
9. Previous year UPSC GS Mains Questions ................................................................................. 70
10. Previous year UPSC Prelims Questions .................................................................................. 72
11. Previous Year Vision IAS GS Mains Test Series Questions ...................................................... 74

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1. Concept of Rights Student Notes:

Rights are entitlements to perform or not to perform certain actions, OR to be or not to be in

certain states; OR entitlements that others perform or not perform certain actions OR to be or
not to be in certain states.
The modern understanding of what actions are permissible and which institutions are just, are
dominated by the discourse on rights. Rights structure the form of governments, the content of
laws, and the shape of morality. By accepting a set of rights, one approves a distribution of
freedom and authority, and also endorses a certain view around what may, must, and must not
be done.
Rights acquire meaning only in context of a society. Each society makes certain rules to regulate
the conduct of its constituents. These rules inform its constituents about what is right and what
is not. The things that are recognized by the society as rightful become the basis of rights. This
is why the notion of rights changes over a period of time and varies from one society to another.
It is only when the socially recognized claims are written into a law, that they acquire real force.
In absence of this, they merely remain what are called natural or moral rights. When laws
recognize some claim, they become enforceable and their enforcement can then be demanded.
When fellow citizens, institutions or the government do not respect these rights, it is referred
to as the violation or infringement of our rights. In such circumstances, citizens can approach
courts to protect their rights. Thus, rights can be defined as the reasonable claims of persons
recognized by society and sanctioned by law.

2. Categories of Rights

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2.1. Natural Rights Student Notes:

These are status-based rights that become available to the individuals by virtue of their birth as
human beings. They are supposed to be given by nature or GOD to human beings and thereby,
are intrinsic to human lives. They are not conferred by law but only enforced by law. For
example, Right to Life and Liberty.

2.2. Human Rights

Human rights are those rights which are considered so fundamental to human dignity and well-
being that every person should possess these rights. These are plural, universal and high-
priority rights that aspire to protect all people everywhere from severe political, legal, and
social abuses. Examples of human rights are the right to freedom of religion, the right to a fair
trial when charged with a crime, the right not to be tortured, and the right to education.
It is a common assumption that natural rights theory underlines the contemporary human
rights doctrine. Consequently, many scholars tend to conflate Human Rights with Natural Rights.
Additionally, the formulation of ‘rights of man’ creates further confusion. However, there are
subtle differences between the three.
Natural rights stress upon a grounding in only human nature and lay emphasis on the
endowment of humans with rights by nature. The ‘rights of man’ suggests man as the source of
rights and hence, views man not only as merely natural but also rational and moral.
In contrast, Human Rights like ‘rights of man’ suggest derivation of rights from the complex
moral notion of humanity, but not as explicitly. The normative justification of human rights is
rather more complex in the sense that these rights are thought to be grounded in multiple
aspects like prudential reasons, practical reasons, morality, human well-being, fundamental
interests, human needs, agency and autonomy, dignity, fairness, equality and positive freedom.

2.3. Legal rights

Legal rights are rights that exist under the rules of legal systems or by virtue of decisions of
suitably authoritative bodies within them. To put simply, legal rights are those rights, which are
conferred by the statutes enacted by the legislature.

2.4. Constitutional Rights

These are the rights enshrined in the constitution. Some are given special status like
Fundamental Rights, while others enjoy ordinary status only. For instance, at present, right to
property is merely a constitutional right under the Indian Constitution.

2.5. Civil and Political Rights

These rights are the cornerstones of modern liberal constitutions across the world. Those rights
concerned with the structures of government and the institutions of public power are labelled
political rights. While the ones inherently connected to the concept of real citizenship and
participation in the political process are called as civil rights.
Civil rights are the basic legal rights a person must possess in order to ensure equal citizenship
for all citizenry. They are the rights that constitute free and equal citizenship and include
personal, political, and economic rights. These are those rights, which are available to the
citizens of a country and are conferred to them either by law of the land or the constitution
itself. For example, Right to Freedom.
Until the middle of the 20th century, civil rights were usually distinguished from ‘political rights’.
The former included the rights to own property, make and enforce contracts, receive due
process of law, and worship one’s religion; freedom of speech and the press. But they did not
include the right to vote or to hold public office. These were thought to be political rights,
reserved to adult males.

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The civil-political distinction was used to classify citizens into different categories. However, the Student Notes:
ideology that a certain segment of the adult citizenry could legitimately possess one bundle of
rights, while another segment would have to make do with an inferior bundle, became
increasingly implausible. In the end, the civil-political distinction has not withstood the test of
time.

2.6. Negative and Positive Rights

The conceptual understanding of positive and negative rights revolves around their application.
The holder of a negative right is entitled to non-interference, while the holder of a positive right
is entitled to provision of some good or service. A right against assault is a classic example of a
negative right, while a right to welfare assistance is a positive right.
Negative rights protect us from against something and are hence, easier to enforce, because it
simply requires striking down the action that violated them. In contrast, positive rights are
difficult to implement since it may be difficult or even impossible to fulfill everyone’s positive
rights if the sum of people’s claims outstrips the resources available.

3. Understanding Fundamental Rights

Some rights, which are fundamental to our life, are given a special status. They are not only
listed in a constitution, but also specially protected. Such rights are called Fundamental Rights.
They are called “fundamental” because they are essential for the all-round development of an
individual and also because they are guaranteed by the fundamental law of the land i.e. the
constitution itself.
In the Constitution of India, Fundamental Rights are enshrined in Part III, from Articles 12 to 35.
These not only guarantee political freedom in the country, but are also a check against arbitrary
actions of the state. Further, they help in establishing the Rule of Law instead of Rule of Men,
which means that the state cannot act in an arbitrary manner.
In fact, Fundamental Rights serve as the foundation of the Rule of Law by acting as a check on
the arbitrary action of the state. Further, an independent judiciary, with the power of judicial
review, acts as a protector of the Fundamental Rights as well as a guardian and guarantor of the
Rule of Law.

4. Evolution of Fundamental Rights

The inspiration for incorporating fundamental rights into the Constitution was the result of a
long struggle for freedom and learning from the experiences of world’s leading democracies
particularly from the Constitution of USA i.e. the Bill of Rights.
In 1928, a series of All Party Conferences headed by Motilal Nehru drafted a constitutional
scheme, called the Nehru Report. It called for establishing India into a Parliamentary democracy
and giving protection to minorities.
The famous resolution of 1931 Karachi Session further committed itself to issues of individual
rights and liberties. This included fundamental civil rights, socio-economic rights like ensuring
minimum wages and abolition of untouchability and serfdom.
However, the Simon Commission and the Joint Parliamentary Committee, which were
responsible for the Government of India Act, 1935, had rejected the idea of enacting
declarations of fundamental rights on the ground that “abstract declarations are useless, unless
there exist the will and the means to make them effective”. But nationalist opinion, since the
time of the Nehru Report, was in favour of a Bill of Rights because the experience gathered
from the British regime was that a subservient Legislature might serve as a handmaid to the
Executive in committing inroads upon individual liberty.

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Regardless of the British opinion, therefore, the makers of our Constitution adopted Student Notes:
Fundamental Rights to safeguard individual liberty and also for ensuring (together with the
Directive Principles) social, economic and political justice for every member of the community.
The Constituent Assembly was also inspired by the Bill of Rights of USA and UK as well as
France’s Declaration of the Rights of Man.

5. Classes of Fundamental Rights

The fundamental rights as enshrined in part III are generally categorized into following six
classes:
• Right to Equality (Art. 14-18)
• Right to Freedom (Art. 19-22)
• Right against Exploitation (Art. 23-24)
• Right to Freedom of Religion (Art. 25-28)

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• Cultural and Educational Rights (Art. 29-30) Student Notes:

• Right to Constitutional Remedies (Art. 32)

6. Details of Fundamental Rights

6.1. Article 12 – Definition of State
6.1.1. Text
In this Part, unless the context otherwise requires, “the State” includes the Government and
Parliament of India and the Government and the Legislature of each of the States and all local
or other authorities within the territory of India or under the control of the Government of
India.
6.1.2. Description
Article 12 seeks to define the scope of “State” for the purpose of Part III of the Constitution. A
citizen can approach the Supreme Court on violation of Fundamental Rights by any of the
bodies included within the definition of the State. In other words, for the purposes of Part III of
the constitution, the state comprises of the following:
1. Government and Parliament of India i.e the Executive and Legislature of the Union
2. Government and Legislature of each State i.e the Executive and Legislature of the various
States of India
3. All local or other authorities within the territory of India
4. All local and other authorities who are under the control of the Government of India
It includes the Parliament, Union Government, State legislature, State Executive, Local
Authorities etc.
Local Authority: The term Local authority includes the following:
• Local government: According to Entry 5 of the List II of VII Schedule ‘local government’
includes a municipal corporation, improvement trust, district boards, mining settlement
authorities and other local authorities for the purpose of local self-government or village
administration.
• Village Panchayat: In the case of Ajit Singh v. State of Punjab, it was held that within the
meaning of the term local authority, village panchayat is also included.
In Mohammad Yasin v. Town Area Committee, the Supreme Court held that to be characterized
as a ‘local authority’ the authority concerned must;
1. Have a separate legal existence as a corporate body
2. Not be a mere government agency but must be legally an independent entity
3. Function in a defined area
4. Be wholly or partly, directly or indirectly, elected by the inhabitants of the area
5. Enjoy a certain degree of autonomy (complete or partial)
6. Be entrusted by statute with such governmental functions and duties as are usually
entrusted to locally (like health, education, water, town planning, markets, transportation,
etc.)
7. Have the power to raise funds for the furtherance of its activities and fulfilment of its
objectives by levying taxes, rates, charges or fees
Other Authorities: The term ‘other authorities’ in Article 12 has not been defined either in the
Constitution or in the general clauses Act, 1897 or in any other statute of India. Therefore, its
interpretation has caused a good deal of difficulty, and judicial opinion has undergone changes
over time. Judicial pronouncements have given a wide scope to the expression “other
authorities” but still the list is not exhaustive.

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The functions of a government can be performed either by the governmental departments and Student Notes:
officials or through autonomous bodies which exist outside the departmental structure. Such
autonomous bodies may include companies, corporations etc.

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Student Notes:

Hence, for the purpose of determining what ‘other authorities’ fall under the scope of State,
the judiciary has given several judgements as per the facts and circumstances of different cases:
• In the University of Madras v. Shanta Bai, the Madras High Court evolved the principle of
‘ejusdem generis’ i.e. of the like nature. It means that only those authorities are covered
under the expression ‘other authorities’ which perform governmental or sovereign
functions. Further, it cannot include persons, natural or juristic, for example, Unaided
universities.
• In the case of Ujjammabai v. the State of U.P., the court rejected the above restrictive
scope and held that the ‘ejusdem generis’ rule could not be resorted to the in interpreting
‘other authorities’. The bodies named under Article 12 have no common genus running
through them and they cannot be placed in one single category on any rational basis.
• In Rajasthan Electricity Board v. Mohan Lal, the Supreme Court held that ‘other authorities’
would include all authorities created by the constitution or statute on whom powers are
conferred by law. Such statutory authority need not be engaged in performing government
or sovereign functions. The court emphasized that it is immaterial that the power conferred
on the body is of a commercial nature or not.
• In the case of R. D. Shetty v/s International Airport Authority, the Court laid down five
tests for a body to be considered “other authority”:
o Entire share capital is owned or managed by State.
o It enjoys monopoly status.

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o Department of Government is transferred to Corporation. Student Notes:

o Functional character is governmental in essence.
o Deep and pervasive State control.

6.2. Article 13

6.2.1. Description
Article 13 deals with powers of judicial review. It makes the judiciary the guardian of
Fundamental Rights in the country. It aims to secure the paramount status of the Constitution
in case of Fundamental Rights. Judicial review is the power of the judiciary to declare any act of
legislature as ultra vires (beyond the competence of the legislature to make the law) or null and
void (illegal).

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6.2.2. Judicial Review Student Notes:

It is the power of the judiciary to declare any act of Parliament and State Legislature as “null &
void” (particular law or a part of it not valid) or “ultra-vires” (doesn’t have authority).
It emerged in USA as an implied power of judiciary in Marbury v/s Madison case, 1803.
Indian Constitution grants the power of judicial review against executive as well as legislative
explicitly to protect the fundamental rights.
6.2.2.1. Provisions
Pre-constitution laws and Fundamental Rights: The pre-constitution laws are not declared
invalid ab-initio (from the start). They are invalid only when they are inconsistent with any of
the fundamental rights.
6.2.3. Doctrine of Eclipse
Article 13(1) states that pre-constitutional laws will be void if they are inconsistent with any
Fundamental Right. However, if such a Fundamental Right, which ‘eclipses’ the pre-
constitutional law, is amended to the extent that the pre-constitutional law is no more
inconsistent with the amended Fundamental Right, then such a law becomes valid again. Such a
law is said to have come out of the eclipse caused by the Fundamental Rights. This judgment
was given in Bhikhaji Narayan case(1955).
In the State of Gujarat vs Ambika Mills (1974) case and in Dulare Lodh vs ADJ Kanpur (1984)
case, the Supreme Court opined that the Doctrine of Eclipse is applicable to both pre and post-
constitutional laws.
However, this stance was reversed in the K.K. Poonacha vs State Of Karnataka & Others (2010)
case, wherein the Supreme Court observed that the doctrine of eclipse will apply to only pre-
Constitution laws which are governed by Article 13(1) and would not apply to post-Constitution
laws which are governed by Article 13(2).
6.2.4. Doctrine of Severability
If any legislature passes a law that violates any provision of the Constitution, then such a law is
declared void by the Court “to the extent of such inconsistency”. Instead of declaring the entire
law as illegal, only that portion of the law may be removed, which is inconsistent. This is the
doctrine of severability.
In Minerva Mills Case (1980), the Supreme Court invalidated clause 4 and 5 of Article 368,
which were added by 42nd Amendment Act in 1976.
6.2.4.1. Motor General Trades v/s State of A.P. 1984
• If a valid section of a law can be separated from the invalid section and the valid section can
be considered to form an independent statute, then this section remains valid.
• If the valid and invalid sections are so mixed up that they cannot be separated then the
whole is declared void.
• After omitting the invalid part, if what remains is very thin and what emerges out is
something different, then the entire law is invalid.

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Student Notes:

6.2.5. Doctrine of Waiver

Doctrine of waiver means voluntary relinquishment of a known right. It is when a person
intentionally and with full knowledge, gives away his right to exercise or chooses not to exercise
that right which the person would otherwise possess. By waiving a right, a person no longer
gets to assert that right and is precluded from challenging the constitutionality of that law for
the benefit of which, the right is waived.
This doctrine is based on the principle that a person is the best judge of his own interest and
when given full knowledge, the person should be allowed to decide for himself. In India, a
person can waive rights conferred by a statute or rights arising out of a contract, but cannot
waive constitutional rights or rights guaranteed by the constitution itself.

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6.2.6. Doctrine of Basic Structure Student Notes:

According to this doctrine there are certain basic structures or basic features of the Constitution,
which can’t be abridged or taken away by the Parliament by way of constitutional amendment.
Through various verdicts the judiciary has enunciated the following, among others, as basic
features of the Constitution:
• Supremacy of the Constitution
• Republican and Democratic form of government
• Secular character
• Separation of Powers
• Judicial Review
• Sovereignty
• Rule of Law
• Principle of Equality
6.2.7. Doctrine of Prospective Over-Ruling
An innovation of the United States of America, this was first pronounced by the Supreme Court
in the Golaknath case, 1967. The SC can overrule its earlier judgment, but the impact will apply
from the prospective effect and not retrospectively.

6.3. Article 14 – Right to Equality

6.3.1. Text
The State shall not deny to any person Equality before Law or Equal Protection of Law within
the territory of India.

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6.3.2. Description Student Notes:

6.3.2.1. Equality before Law
• This implies that all citizens are equal in the eyes of law. It means that-
o There will be absence of any special privileges in favour of any person,
o There will be equal subjection of all persons to the ordinary law of the land
administered by ordinary law courts,
o There will be no person above the law, whether rich or poor, high or low, official or
non-official.
• It has been borrowed from the British tradition.
• It is negative in its orientation as the State is restricted from making any discrimination
between two citizens.
6.3.2.2. Equal Protection of Law
• It implies that the State should ensure that every citizen gets equal protection of law and no
one should be deprived of justice because of poverty or any other reason. It means that-
o There will be equality of treatment under equal circumstances, both in the privileges
conferred and liabilities imposed by the laws.
o The like shall be treated alike without any discrimination. As per the Supreme Court,
where equals and unequals are treated differently, Article 14 does not apply.
• It is borrowed from the American Constitution.
• It is a positive concept as it implies that people who are in similar circumstances will be
treated similarly, but differently from people in different circumstances.
6.3.3 Applicability
Art. 14 grants Right to Equality to all persons whether Indian citizens, foreigners, or even legal
entities such as a Company. This right is available against state action only.
6.3.4. Exceptions
• Under Article 31-C, the laws made by the state for implementing DPSPs contained in Article
39 (b) and Article 39 (c) cannot be challenged on the ground that they are violative of
Article 14.
• The President of India and Governors of States enjoy immunity from prosecution under
Article 361.
• Under Article 361-A, no person shall be punished for publishing a substantially true report
of any proceedings of any legislature in any media (newspaper/ radio/ television).
• The MPs and MLAs enjoy privileges in the legislature (Article 105 and 194).
• The foreign sovereigns (rulers), ambassadors and diplomats enjoy immunity from criminal
and civil proceedings.
• The UNO and its agencies enjoy the diplomatic immunity.

6.4. Article 15 – Right against Discrimination on Certain Grounds

6.4.1. Text
• The State shall not discriminate against any citizen on grounds only of religion, race, caste,
sex, place of birth or any of them
• No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them,
be subject to any disability, liability, restriction or condition with regard to—
a) access to shops, public restaurants, hotels and places of public entertainment; or
b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the general public.

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6.4.2. Applicability Student Notes:

This right is available to Indian citizens only. Hence foreign nationals can be discriminated
against vis-à-vis Indian citizens by the Indian state. Similarly, legal entities can also be
discriminated against. Further while Art. 15(1) is a direction only to the State, Art. 15(2) is
available against private individuals as well.

6.4.3. Exceptions
• The state can make any special provision for women and children. E.g. reservation of seats
for women in local bodies or provision of free education for children.
• 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. E.g. reservation of seats in legislatures and public educational institutions.
o The State can make any special provision for them in so far as such special 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.
• The State can make special provisions for the advancement of any economically weaker
section of citizens, including reservations in educational institutions.

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6.4.4. Reservation Policy Student Notes:

It is a form of affirmative action whereby a percentage of seats are reserved in the government
service and educational institutions for the socially and educationally backward communities
and the Scheduled Castes and Tribes who are inadequately represented in these services and
institutions.
• Reservation is provided to Scheduled Castes (SCs), Scheduled Tribes (STs) and Other
Backward Classes (OBCs) at the rate of 15%, 7.5% and 27% respectively in case of direct
recruitment on all India basis by open competition.
• Persons with Disability Act, 1995 provides for reservation for persons with disabilities in
India. Under the Act, persons with disabilities got 3% reservation in both government jobs
and higher educational institutions.
• 10% Reservation to Economically Weaker Sections (EWS) was recently provided by 103rd
Constitutional Amendment Act, 2018. It amended Articles 15 and 16 to provide reservation
to economically weaker section in admission to educational institutions and government
posts.
Judicial pronouncements regarding Reservation
• State of Madras vs Champakam Dorairajan (1951)
o The Supreme Court upheld decision of Madras High Court, which struck down a
Government Order of 1927 regarding caste-based reservation in government jobs and
educational institutions.
▪ This judgement also made basis of of adding Article 15(4) by the First Constitutional
Amendment Act, 1951.
• Indra Sawhney vs. Union of India (1992)
o The Judge Constitution Bench of the Supreme Court by 6:3 majority held that the
decision of the Union Government to reserve 27% Government jobs for backward
classes – with elimination of Creamy Layer- is constitutionally valid.
o The reservation of seats shall only confine to initial appointments and not to
promotions, and the total reservations shall not exceed 50 per cent.
• M. Nagaraj vs. Union of India (2006)
o A five-judge constitution bench of the Supreme Court validated parliament’s decision to
extend reservations for SCs and STs to include promotions with three conditions:
▪ State has to provide proof for the backwardness of the class benefitting from the
reservation.
▪ State has to collect quantifiable data showing inadequacy of representation of that
class in public employment.
▪ State has to show how reservations in promotions would further administrative
efficiency.
• Jarnail Singh v. Lachhmi Narain Gupta (2018)
o The Supreme Court held that the government need not collect quantifiable data to
demonstrate backwardness of public employees belonging to the Scheduled Castes
and the Scheduled Tribes (SC/STs) to provide reservations for them in promotions.
• Recently the Supreme Court upheld Karnataka Extension of Consequential Seniority to
Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil
Services of the State) Act, 2018. The enactment provides for consequential seniority to SCs
and STs with restrospective effect from 1978.
o Consequential seniority allows reserved category candidates to retain seniority over
general category peers. If a reserved category candidate is promoted before a general
category candidate because of reservation in promotion, then for subsequent
promotion the reserved candidate retains seniority. In effect, consequential seniority

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undoes the 'catch-up rule' that allowed general category candidates to catch-up to Student Notes:
reserved category candidates.
6.4.4.1 Controversy related to reservation in Private Educational Institutions
• Inamdar vs. State of Maharashtra and TMA Pai Foundation vs. State of Karnataka: The
Supreme Court opined that government can not introduce quota in private unaided
educational institutions as it was violative of Fundamental Rights under Article 19(1)(g),
that is, freedom of profession.
o The 93rd amendment was enacted to override this verdict.
o Supreme Court upheld the validity of the above constitutional amendment.
o The central government then passed Central Educational Institutions Act, 2006 to give
effect to the provisions of the Constitution.
• Ashok Kumar Thakur vs. Union of India case: upheld the validity of 93rd amendment and
Central Educational Institutions Act, 2006. The status of quota in private unaided
institutions was left open to be decided in the future.
• Society for unaided private schools for Rajasthan vs. Union of India case 2013—upheld
the validity of introduction to quota under Right to Education Act, 2009 even in private
unaided institutions. Arguments given by Supreme Court:
o Education cannot be treated as a purely commercial enterprise.
o Article 21A is an obligation on the State.
o Right to Education is a child-centered act rather than an institution-centered act.
6.4.4.2 Controversy related to reservation for Economically Weaker Sections
As per the amendment, up to 10% of seats may be
reserved for such sections for admission in
educational institutions. Such reservation will not
apply to minority educational institutions. The
reservation of up to 10% for the EWS will be in
addition to the existing reservation cap of 50%
reservation for SC, ST and OBCs. The central
government will notify the “economically weaker
sections” of citizens on the basis of family income and
other indicators of economic disadvantage.
For the very first time, economic class is
constitutionally recognized as vulnerable section & would form the basis of affirmative action
programme. It is a departure from traditional centrality of caste in deciding affirmative action.
Arguments in favour of reservation based on economic status
• Need for new deprivation assessment criteria: Caste, while prominent cause of injustice in
India, should not be the sole determinant of the backwardness of a class. This is because of
the weakening links between the caste and class in changing circumstances.
• In Ram Singh v. Union of India (2015), SC asserted that social deficiencies may exist beyond
the concept of caste (e.g. economic status / gender identity as in transgenders). Hence,
there is a need to evolve new yardsticks to move away from caste-centric definition of
backwardness, so that the list remains dynamic and most distressed can get benefit of
affirmative action.
• Increasing dissatisfaction among various sections: Politically, the class issues have been
overpowered by caste issues. This has created a sense of dissatisfaction amongst
communities with similar or poorer economic status but excluded from caste-based
reservation.

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Arguments against extending reservations on economic basis: Student Notes:

• Against equality norm: To balance the equality of opportunity of backward classes ‘against’
the right to equality of everyone else, a cap of 50% was put on the reserved seats. When
the quota exceeds 50% limit, it breaches the equality norm.
o In M. Nagaraj v. Union of India (2006), a Constitution Bench ruled that equality is part
of the basic structure of the Constitution. The 50% ceiling is a constitutional
requirement without which the structure of equality of opportunity would collapse.
• No under-representation: The upper caste is adequately represented in public employment.
It is not clear if the government has quantifiable data to show that people from lower
income groups are under-represented in its service.
• Problem with the ceiling: By fixing income ceiling for eligibility at ₹8 lakh a year — same as
the ‘creamy layer’ limit above which OBC candidates become ineligible for reservations — a
parity has been created between socially & economically backward classes with limited
means.
• Definition of EWS and allotment of quota: The issue with current definition of EWS is that
it is too broad and would include large sections of population. Further, it also puts families
below poverty line and the ones with income of 8 lakh/annum in the same category.
o Reservation for SCs/STs and non-creamy layer amongst OBCs has correlation with their
respective populations. While there is no such clarity on arriving at the 10% EWS quota.
• Challenges in the identification of beneficiaries: In a country where taxable population is
still very low due to misrepresentation of income, implementing economic eligibility criteria
would be a bureaucratic nightmare.
• ‘Pandora’s box’ of demands: There may be demand from sections of the SCs/STs and OBCs
to introduce similar sub-categorization, based on economic criteria, within their respective
quotas. It might also fuel demands for new caste-based censuses to expand quota limits
based on SC/ST or OBC proportions in the population, or to extend the reservations to
private sector jobs. Quota in promotions may also gain widespread acceptability, both
among the public and the judiciary.
• Shrinking public sector: With steadily shrinking jobs pool in the Central Government,
Central Public Sector Enterprises (CPSEs) and even banks, 10% reservation will not fulfill
expectations.
• Anti-Merit: In common perception, reservation has also become synonymous with anti-
merit. With extension of reservation, this opinion might get further ingrained in public
psyche. • Tool of populism: Offering reservations has increasingly become tool for political
gains in politics. This affects their credibility as a tool for social justice.
• Passage of the Bill: The Bill was not circulated ahead of being introduced, it was not
examined by a parliamentary committee & there was hardly any time between its
introduction and final discussion.
• Also, the Sinho Commission report of 2010, which the Centre has been citing as the basis
for its legislation to grant 10 % reservation to the EWS, never explicitly recommended a
reservation for EWS but was only emphatic about ensuring that the EWS get access to all
welfare schemes.
Pending Bills
Way Forward
The Women’s Reservation Bill that is being
A 9-judge bench of Supreme Court in Indira nationally debated since 1996 is also based on
Sawhney case (1992) had struck down a the protective provisions of the Article 15.
provision that earmarked 10% for the Constitution (108) Amendment Bill, which was
economically backward on the grounds that introduced in the Rajya Sabha in 2008 was also
an attempt to empower woman.
Constitution only provides for addressing
social backwardness. However, any such
step should carefully be preceded by following considerations-

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• 50% ceiling was put in place to check populism in granting quotas by the political class. Student Notes:
There must be an institutional mechanism that recommends classes for reservation.
• Based on the affidavits furnished by the candidates, independent, transparent and non-
intrusive verification methods have to be devised so that reservation provisions cannot be
misused easily.
• The logic of providing reservation to economically backward people can further be carefully
extended to exclude the creamy layers among SC/ST groups.
• The demand for reservation must be seen in light of the quality of private sector jobs and
wages available to aspirational India. The only way out of the quota quagmire is to create
an enabling environment for the formalization and creation of more and better jobs in the
private sector.
• For a long-term solution, it is important to address the major issues like caste divisions
majorly in rural areas, job creation in private sector, skill creation and education.

6.5. Article 16- Right to Equality of Opportunities in Matters of

Public Employment
6.5.1. Text
• There shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State.

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• No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, Student Notes:
residence or any of them, be ineligible for, or discriminated against in respect of, any
employment or office under the State.
6.5.2. Applicability
Right to equality of opportunity in matters of public employment is available only to Indian
citizens.

6.5.3. Exceptions
• The State can make any provision for the reservation of appointments or posts 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 State can make any provision for reservation in matters of promotion, with
consequential seniority, to any class or classes of posts in the services under the State in
favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State,
are not adequately represented in the services under the State.

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• The State can consider any unfilled vacancies of a year which are reserved for being filled Student Notes:
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 shall not be considered together with the vacancies of the year
in which they are being filled up for determining the ceiling of fifty per cent reservation on
total number of vacancies of that year.
• The State can prescribe residence as a condition for certain employment or appointment in
a state or union territory or local authority or other authority.
• The State can provide 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.
6.5.4. Issue of reservation in promotions
Although, the SC in Indira Sawhney Case had held that the reservation policy cannot be
extended to promotions, but it was overruled by the 77th Constitutional Amendment Act, 1995.
This amendment introduced Article 16(4A), which provided reservation in promotion to SC/STs.
• In Ajit Singh vs. State of Punjab, the Supreme Court upheld the validity of 77th amendment
act and directed to introduce “catch up rule”. The court restored their seniority once
promoted at par with the SC/ST candidates who got quick promotions ahead of their batch
mates.
• The Parliament again amended the Constitution through the 85th Amendment Act, 2001, to
negate the catch up rule directed by Supreme Court. It introduced promotion with
consequential seniority. This act was brought with retrospective effect from 1995.
o Consequential Seniority means elevation to a senior position consequential to
circumstances, and not through normal rules. Illustrating it, suppose there are 100
sanctioned posts in a department, out of which 30 are occupied by unreserved
candidates, 15 are occupied by reserved candidates and 55 remain ‘vacant’. The
reservation is 30%, which implies that 30 posts must be manned by reserved category
employees. So, if a reserved category employee is junior to a general category
employee, but there is vacancy for reserved category at a senior position, so reserved
category employee will be considered senior and promoted above the general category
employee.
• In 2002, Karnataka had brought a similar law, but was struck down by the Supreme Court in
2006 in M. Nagaraj vs. Union of India Case. The Supreme Court validated the state’s
decision to extend reservation in promotion for SCs and STs, but gave direction that the
state should provide proof on the following three parameters to it-
o Empirical Data on Backwardness- of the class benefitting from the reservation.
o Empirical Data on Inadequate Representation- in the position/service for which
reservation in promotion is to be granted.
o Impact on efficiency- how reservations in promotions would further administrative
efficiency.
• Many stakeholders and petitioners were not satisfied with these criteria and various review
petitions were filed on this judgment. It was again taken up in Jarnail Singh Case which
upheld the 2nd and 3rd criteria of Nagaraj Case. But observed that there is no longer need
to collect quantifiable data on the backwardness of SCs and STs. Although it stated that the
exclusion of creamy layer while applying the principle of reservation is justified, even in the
case of SCs and STs.
• Faculty Association of AIIMS vs. Union of India, July 2013- In this case, a five judge bench
of the Supreme Court ruled that there are certain jobs for which merit alone should be the
sole criteria.
o The Union Government appealed against this judgment and in the review petition a
five-judge bench in January 2014, threw the ball back into the Central Government’s

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court saying that the Government was free to amend the Constitution to provide Student Notes:
reservation in faculty for superspeciality posts and that the previous judgment did not
place any restriction on the Government to decide whether or not there should be
reservation in superspeciality posts.
• In 2019, the Supreme Court had permitted the Central government for reservation in
promotion to SC/ST employees working in the public sector in “accordance with law”.
• The Karnataka government set up the Ratna Prabha Committee to submit a report on the
three criteria and based on its report had come up with the revised bill. This time, the court
has upheld it constitutionally.

Way Forward
• Caste is not a matter of identity or right, when it comes to administrative policy. At
difference levels, studies and empirical data should to be collected to decide the level of
promotions needed.
• The Constitution envisages not just a formal equality of opportunity but also the
achievement of substantive equality. Currently, there is ambiguity in promotion process.
Thus, there is a need for a new, comprehensive law to be enacted.
6.5.5 Issue of Local Reservation in Private Sector Jobs
Recently, Haryana Cabinet cleared a draft ordinance that seeks to reserve 75% of the jobs in
private enterprises for local residents to address the aspect of unemployment of the local
population on a priority basis.
Background
• A survey done by the Centre for the Study of Developing Societies (CSDS) in 2016 showed
that nearly two- third of respondents were in favour that people from the state should be
given priority vis-à-vis employment opportunities.
• Similar demands are being raised in other states like Andhra Pradesh, Madhya Pradesh,
Karnataka, Gujarat, Maharashtra etc. o Last year similar 75% job reservation to locals was

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given in Andhra Pradesh but the matter is sub judice and AP High Court has indicated that it Student Notes:
may be unconstitutional.
• Such moves are considered mainly to promote Inclusive Development. For example, in
Germany, every village has a factory. India could also have industries in villages and provide
jobs to the local people for an all-round development. However, there should be an
overarching framework at the Union level to promote such development.

Issues with implementation of the ordinance

• May not pass the legal scrutiny- It is violative of Article 14 (Right to equality) and Art 16
(Right to equal opportunity). Moreover, Article 16 does not empower the state government
but rather the Parliament to provide reservation in jobs on the basis of residence but that
too is limited to public sector.
• Dangerous for unity of the country- Such moves could lead to a Pandora’s box where other
states start implementing such policies, which result in fractures in the unity of India.
• Concerns of the Industry- Although, most of the units employ locals only, however, there
are certain sectors like chemical technology, textile and biotechnology, where it may be
difficult to find locals for the jobs and the units are forced to search outside.
o It will likely facilitate corruption and create another barrier to ease of doing business.

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o Difficult to attract investments- Such a decision may lead to relocation of industries Student Notes:
elsewhere and also alienate the potential investors. Lack of investments could further
drop the job creation.
o Plan may not impact micro or smaller units as they can still engage localites. However,
medium and large- scale companies and MNCs like Auto industry which contributes
more than 25% of the state GDP of Haryana will be adversely impacted.
o Since these industrial units cannot ‘import’ labourers from elsewhere; the burden of
imparting the requisite skills to, and of employing, locals will fall on the units.
Way Forward
• Need to tackle the core issues- of unemployment by more job creation and
industrialisation rather than such moves.
o Governments should provide incentives to industries for more investments and create
an enabling environment for it. The Economic Survey 2018-19 also alerts the policy
makers against such policy uncertainties for the industries, which may rather impact
economic development.
o Government should focus on making the youth of a state employable with proper
investments in education, health and skill development.
• Need to promote labour intensive industries- to make use of the labour surplus in the
country, rather than simply forcing any industry for the locals.
• Need to promote entrepreneurship- where people are themselves motivated to create
livelihood for them. State can provide incentives and help here such as done for Dalit
entrepreneurs in Maharashtra.
• Need to move towards economy-based reservation- rather than further expansion of
reservation policies using unproductive rationales.
Conclusion
Job reservation for locals may not enhance their economic opportunities in the long run. Only,
raising the standard of education and skilling youth alongside the necessary structural reforms
is the only way to increase the size of the economic pie in the absolute sense.
6.5.6 Job Reservations, Promotion Quotas Not A Fundamental Right
Recently, the Supreme Court take a case pertaining to decision by the Uttarakhand government
in 2012. Back then, the government had decided to fill up posts in public services without
providing reservation to members of the Scheduled Caste (SC) and Scheduled Tribe (ST)
communities. The Uttarakhand High Court directed the state government in 2019 to implement
reservations in promotion by promoting only SCs and STs to maintain the quota earmarked for
the said categories.
The Court held that Article 16 (4) and 16 (4-A) are in the nature of enabling provisions, vesting
a discretion on the State Government to consider providing reservations, if the circumstances
so warrant. It is settled law that the state cannot be directed to give reservations for
appointment in public posts. The order further adds that the state is not bound to make a
reservation for SCs and STs in matters of promotions. The court said that no mandamus can be
issued by the court directing state governments to provide reservations.
However, if the state wishes to exercise its discretion and make such provision, it has to collect
quantifiable data showing ‘inadequacy of representation of that class in public services. If the
decision of the state government to provide reservations in promotion is challenged then the
state concerned will have to place before the court the quantifiable data that reservations
became necessary on account of inadequacy of representation of SCs and STs without affecting
general efficiency of administration as mandated by Article 335.

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Analysis of Judgement Student Notes:

• The fact that reservation cannot be claimed as a fundamental right is a settled position
under the law and has been pointed out by several judgments in the past.
o In 1967, a five-judge bench in C.A. Rajendran v. Union of India held that the
government is under no constitutional duty to provide reservations for SCs and STs,
either at the initial stage of recruitment or at the stage of promotion.
o The position went on to be reiterated in several other decisions, including the nine-
judge bench ruling in Indra Sawhney v. Union of India (1992) and the five-judge bench
decision in M Nagaraj v. Union of India (2006).
• Although this position of law is a settled one, it is nonetheless at odds with certain other
principles at the heart of the constitutional vision of equality.
o In NM Thomas judgement (1976), the Supreme Court held that the Constitution was
committed to an idea of substantive equality, i.e. it had to take the actual
circumstances of people into account when determining what constituted “equal
treatment”.
o The principled reason for this position was that groups of people who face structural
and institutional barriers towards being able to compete on “equal terms” with others
in society — for reasons that are historical, but whose effects are enduring — must be
treated in a way that mitigates those existing conditions of inequality.
o Reservations — under this understanding — were a means to bring about genuine and
true equality, and not a set of privileges or gifts.
• To interpret the obligations of the state purely from the textual foundations of Article 16 is
not an appropriate approach. Fundamental rights are not isolated provisions and ought to
be looked into as an interconnected whole.
• As there are less avenues for the direct appointment in higher posts, reservations play a
major role for the representation of backward classes in higher posts.
o According to a Parliament reply last year, only one of the 89 secretaries posted at the
Centre belonged to the SC, while three belong to the ST. The court order may go against
the substantive equality in higher posts.
• The Supreme Court is not wrong in saying that a writ of mandamus cannot be granted by
any court in order to enforce an enabling provision. The writ of mandamus is issued only to
compel an authority to discharge a binding duty.
Conclusion
It is a settled principle of law that a discretionary power cannot be exercised in a fickle manner.
Simply because the exercise of a power is optional for the government does not mean that it
can be exercised in a whimsical manner. Article 14 of the Indian Constitution has been
interpreted to prohibit all kinds of arbitrary decisions by the government. Thus, the courts are
entitled to examine if a discretionary power has been exercised in a judicious manner.

6.6. Article 17 – Abolition of Untouchability

6.6.1. Text
The Constitution abolishes ‘untouchability’ and forbids its practice in any form. The
enforcement of any disability arising out of untouchability shall be an offence punishable in
accordance with law.
6.6.2. Description
Untouchability is banned in any form in our country. Under Article 35, the Parliament has made
2 enabling Acts to enforce this provision. Notably, the Constitution has not defined the term
“untouchability”. However, the Mysore High Court held that the subject matter of Article 17 is
not untouchability in its literal or grammatical sense but the ‘practice as it had developed

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historically in the country’. It refers to the social disabilities imposed on certain classes of Student Notes:
persons by reason of their birth in certain castes. Hence, it does not cover social boycott of a
few individuals or their exclusion from religious services, etc.
6.6.3. The Protection of Civil Rights Act, 1955
Initially named as Untouchabilities (Offences) Act, 1955, it was amended in 1976 and renamed
as The Protection of Civil Rights Act. It makes provisions against untouchability stronger.
Further, a person convicted of the offence of untouchability is disqualified as a candidate for
elections to the Parliament and State Legislature.
Untouchability is a cognizable offence (police officer can arrest the accused without a
magisterial warrant) and a non-compoundable offence (cases which cannot be withdrawn even
if a compromise is reached between disputing parties; the State becomes a party). It provides
for a special court for speedy trial. The act declares the following acts as offences:
• Preventing any person from entering any place of public worship or from worshipping
therein;
• Justifying untouchability on traditional, religious, philosophical or other grounds;
• Denying access to any shop, hotel or places of public entertainment;
• Insulting a person belonging to scheduled caste on the ground of untouchability;
• Refusing to admit persons in hospitals, educational institutions or hostels established for
public benefit;
• Preaching untouchability directly or indirectly; and (g) refusing to sell goods or render
services to any person.
The Supreme Court held that the right under Article 17 is available against private individuals
and it is the constitutional obligation of the State to take necessary action to ensure that this
right is not violated.
6.6.4. The Schedule Caste and Schedule Tribe Prevention of Atrocities Act,
1989
• Its main objective is prevention of atrocities by increased surveillance, collecting licenses of
upper castes etc.
• Provides relief and rehabilitation measures for the victims.
• Provides for special court and special police.
• In some situations, police can even provide arms to members of SC and ST community for
self-defence.
Recent Developments
To curb the misuse of Scheduled Castes and Tribes (Prevention of Atrocities POA) Act, 1989, Supreme
Court in March 2018 diluted the Act in Subhash Kashinath Mahajan vs State of Maharashtra case.
• Anticipatory Bail: Supreme Court laid down safeguards, including provisions for anticipatory bail
and a “preliminary enquiry” on whether complaint under the 1989 law is “frivolous or motivated”
before registering a case.
• FIR: Neither is an FIR to be immediately registered nor are arrests to be made without a preliminary
inquiry. An arrest could only be made if there is “credible” information and police officer has
“reason to believe” that an offence was committed.
• Permission: Even if a preliminary inquiry was held and a case registered, arrest is not necessary, and
that no public servant is to be arrested without the written permission of the appointing authority.
This judgment had triggered widespread protests and violence and the government had to amend the
Act to negate the effect of the apex court ruling. In August 2018, amendment restored the bar against
anticipatory bail and nullifying the apex court verdict.
• A new section 18A was inserted in the Act of 1989, which does away with the court-imposed
requirements of undertaking preliminary inquiry and of procuring approval prior to making an
arrest.

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• It also asserted that in cases under the Atrocities Act, no procedure other than that specified under Student Notes:
the Act and Cr. P. C. shall apply.
Later on, Supreme court reserved its verdict on the petitions challenging the validity of 2018
amendments to The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989. It restored the
earlier position of the law by recalling two directions in the March, 2018 verdict, which provided no
absolute bar on grant of anticipatory bail and prior inquiry before effecting arrest of public servant and
private individual under the Act.

6.7. Article 18
6.7.1. Text
Abolition of titles.
1) No title, not being a military or academic distinction, shall be conferred by the State.
2) No citizen of India shall accept any title from any foreign State.
3) No person who is not a citizen of India shall, while he holds any office of profit or trust
under the State, accept without the consent of the President any title from any foreign
State.
4) No person holding any office of profit or trust under the State shall, without the consent of
the President, accept any present, emolument, or office of any kind from or under any
foreign State.
6.7.2. Description
• It is a restriction on the powers of the State, citizens and non-citizens.
• The State must not give any titles except a military or an academic one.
• No citizen of India is allowed to accept any title from a foreign state.
• A foreign citizen holding any office of profit or office of trust under the Indian State is not
allowed to accept any title, present, emolument, or office of any kind from a foreign state
without the permission of the President of India.
6.7.3. Case of Bharat Ratna and Padma Awards

In Balaji Raghavan case, the SC allowed the State to give Bharat Ratna and Padma awards but
made it clear that these couldn’t be used as a title. These National Awards were instituted in
1954. The Janata Party government headed by Morarji Desai discontinued them in 1977. But
they were again revived in 1980 by the Indira Gandhi government.

6.8. Article 19 – Right to Freedom

6.8.1. Text
All citizens shall have the right—
a) to freedom of speech and expression;
b) to assemble peaceably and without arms;
c) to form associations or unions;
d) to move freely throughout the territory of India;
e) to reside and settle in any part of the territory of India; and
f) to practise any profession, or to carry on any occupation, trade or business.
Originally, Article 19 contained seven rights. But, the right to acquire, hold and dispose of
property was deleted by the 44th Amendment Act of 1978.
6.8.2. Applicability
Rights under Article 19 are protected against only state action and not private individuals.
Moreover, these rights are available only to the citizens and to shareholders of a company but
not to foreigners or legal persons like companies or corporations, etc. The State can impose

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‘reasonable’ restrictions on the enjoyment of these six rights only on the grounds mentioned in Student Notes:
the Article 19 itself and not on any other grounds.
Article 19 is suspended automatically if proclamation is on ground of external aggression, and
remains so, as long as emergency is in operation. However, after the 44th Amendment, it cannot
be suspended if the emergency is declared on the grounds armed rebellion.
6.8.3 Freedom of Speech and Expression
Under this article, every citizen has the right to express his views, opinions, belief and
convictions freely by word of mouth, writing, printing, picturing or in any other manner. The
Supreme Court held that the freedom of speech and expression includes the following:
• Right to propagate one’s views as well as views of others.
• Freedom of the press.
• Freedom of commercial advertisements.
• Right against tapping of telephonic conversation.
• Right to telecast, that is, government has no monopoly on electronic media.
• Right against bundh called by a political party or organisation.
• Right to know about government activities.
• Freedom of silence.
• Right against imposition of pre-censorship on a newspaper
• Right to demonstration or picketing but not right to strike
The State can impose reasonable restrictions on the exercise of the freedom of speech and
expression on the grounds of sovereignty and integrity of India, security of the state, friendly
relations with foreign states, public order, decency or morality, contempt of court, defamation,
and incitement to an offence.
6.8.4. Freedom of Assembly
Under this article, every citizen has the right to assemble peaceably and without arms. It
includes the right to hold public meetings, demonstrations and take out processions. This
freedom can be exercised only on public land and the assembly must be peaceful and unarmed.
This provision does not protect violent, disorderly, riotous assemblies, or one that causes
breach of public peace or one that involves arms. This right does not include the right to strike.
The State can impose reasonable restrictions on the exercise of right of assembly on two
grounds, namely, sovereignty and integrity of India and public order including the maintenance
of traffic in the area concerned.
• Under Section 144 of Criminal Procedure Code (1973), a magistrate can restrain an
assembly, meeting or procession if there is a risk of obstruction, annoyance or danger to
human life, health or safety or a disturbance of the public tranquillity or a riot or any affray.
• Under Section 141 of the Indian Penal Code, as assembly of five or more persons becomes
unlawful if the object is-
o to resist the execution of any law or legal process;
o to forcibly occupy the property of some person;
o to commit any mischief or criminal trespass;
o to force some person to do an illegal act; and
o to threaten the government or its officials on exercising lawful powers.
6.8.5. Freedom of Association
Under this, all citizens have the right to form associations or unions or co-operatives (97th
Amendment Act) has been added. It includes the right to form political parties, companies,
partnership firms, societies, clubs, organisations or any body of persons. It not only includes the
right to start an association or union but also to continue with the association or union as such.

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Further, it covers the negative right of not to form or join an association or union. Student Notes:
Reasonable restrictions can be imposed on the exercise of this right by the State on the
grounds of sovereignty and integrity of India, public order and morality. The Supreme Court
held that the trade unions have no guaranteed right to effective bargaining or right to strike or
right to declare a lock-out. The right to strike can be controlled by an appropriate industrial law.
6.8.6. Freedom of Movement
Under this, every citizen can move freely from one state to another or from one place to
another within a state. This right underline the idea that India is one unit so far as the citizens
are concerned. Thus, the purpose is to promote national feeling and not parochialism.
Reasonable restrictions on this freedom are two, namely, the interests of general public and
the protection of interests of any scheduled tribe. The entry of outsiders in tribal areas is
restricted to protect the distinctive culture, language, customs and manners of scheduled tribes
and to safeguard their traditional vocation and properties against exploitation.
The Supreme Court held that the freedom of movement of prostitutes can be restricted on the
ground of public health and in the interest of public morals. The Bombay High Court validated
the restrictions on the movement of persons affected by AIDS.
The freedom of movement has two dimensions, viz, internal (right to move inside the country)
and external (right to move out of the country and right to come back to the country). Article
19 protects only the first dimension. The second dimension is dealt by Article 21 (right to life
and personal liberty).
6.8.7. Freedom of Residence
Every citizen has the right to reside and settle in any part of the territory of the country. This
right has two parts:
• The right to reside in any part of the country, which means to stay at any place temporarily,
and
• The right to settle in any part of the country, which means to set up a home or domicile at
any place permanently.
This right is intended to remove internal barriers within the country or between any of its parts.
This promotes nationalism and avoids narrow mindedness. The State can impose reasonable
restrictions on the exercise of this right on two grounds, namely, the interest of general public
and the protection of interests of any scheduled tribes.
The right of outsiders to reside and settle in tribal areas is restricted to protect the distinctive
culture, language, customs and manners of scheduled tribes and to safeguard their traditional
vocation and properties against exploitation. In many parts of the country, the tribals have been
permitted to regulate their property rights in accordance with their customary rules and laws.
The Supreme Court held that certain areas can be banned for certain kinds of persons like
prostitutes and habitual offenders.
6.8.8. Freedom of Profession
Under this, all citizens are given the right to practise any profession or to carry on any
occupation, trade or business. This right is very wide as it covers all the means of earning one’s
livelihood. The State can impose reasonable restrictions on the exercise of this right in the
interest of the general public. Further, the State is empowered to:
• Prescribe professional or technical qualifications necessary for practising any profession or
carrying on any occupation, trade or business; and
• Carry on by itself any trade, business, industry or service whether to the exclusion
(complete or partial) of citizens or otherwise

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Thus, no objection can be made when the State carries on a trade, business, industry or service Student Notes:
either as a monopoly (complete or partial) to the exclusion of citizens (all or some only) or in
competition with any citizen. The State is not required to justify its monopoly. This right does
not include the right to carry on a profession or business or trade or occupation that is immoral
(trafficking in women or children) or dangerous (harmful drugs or explosives, etc,). The State
can absolutely prohibit these or regulate them through licencing.
6.8.9. Issues related to Rights under Article 19
6.8.9.1 Status of Freedom of Press
Unlike several countries such as USA, there is no separate provision guaranteeing the freedom
of press, but the Supreme Court in Sakaal paper v/s Union of India case, has held that the
freedom of press is included in the “freedom of expression” under Article 19(1) (a). In Brij
Bhushan case, SC clarified that there is no prior censorship on the media, i.e., no prior
permission is needed.
44th amendment, 1976 introduced Article 361A that provides protection to a person publishing
proceedings of the Parliament and State Legislatures.
In Indian Express case, it was clarified that the Freedom of Press includes:
• Right to Information
• Right to Publish
• Right to Circulate
In 1997, the Prasar Bharti Act granted autonomy to Doordarshan and All India Radio (which
means it can criticize the state policies and actions).
In 1966, Press Council of India was created to regulate the print media. PCI has a retired SC
judge as its chairperson (by convention) and 28 other members.
• 20 members are the representatives from the media
• 5 members are nominated by Parliament
• 3 members – one each come from UGC, Sahitya Kala Academy and Bar Council of India
The National Commission to Review the Working of Constitution (NCRWC) recommended that
Freedom of Press be explicitly granted and not be left implied in the Freedom of Speech.
6.8.9.2 Control of Social and Broadcast Media
Media in India is against external regulation. But it is realized that self-regulation may turn out
to be no regulation at all. Hence PCI sought to bring electronic and social media under its ambit.
According to PCI chairperson, there is difference between regulation and control.
There are two rights on which media claims independence –
• Article 19(1) (a) – Under freedom of speech expression
• Article 19(1) (g) – Freedom to practice any profession, occupation, trade or business
Neither of these rights is absolute. Moreover, media cannot claim to be a purely commercial
venture.
Levenson Report on Media in Britain – also calls for regulation of media.
6.8.9.3. Freedom of Speech and Civil Servants
According to the Supreme Court, freedom of speech for civil servants can be curtailed in the
interests of discipline even though such a restriction is not mentioned in Article 19 (2). Service
rules are essential for discipline within services. The objective here is not to curb the freedom
of speech of civil servants but to ensure that they are able to effectively discharge their duties.
Hence, there is balance to be maintained between organizational functioning and freedom of

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speech. Such restrictions, however, do not apply to an elected representative in an organization Student Notes:
as he represents people.

6.8.9.4. Sedition
As per Section 124A of IPC, Sedition is an act that brings or attempts to bring into hatred or
contempt or excites or attempts to excite disaffection towards the Government established by
law in India by words, either spoken or written, or by signs, or by visible representation, or
otherwise. As per this Section, a person is liable to be punished with imprisonment for life or
imprisonment up to three years with fine.
The section 124A of Indian Penal Code is a pre- independence provision, which covers sedition
charges against government. Various verdicts by Indian Judiciary have led to re-interpretation
and re-examination of ‘sedition’ in light of Article 19 of the Constitution. There has been an
effort to strike a balance between right to free speech and expression and power of State to
impose reasonable restrictions (Article 19(2)).
Views of the Supreme Court
• In 1962, the Supreme Court in Kedar Nath Singh vs. State of Bihar upheld Section 124A
and held that it struck a “correct balance” between fundamental rights and the need for
public order.
• The court had significantly reduced the scope of Sedition law to only those cases where
there is incitement to imminent violence towards overthrow of the state.

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• Further, the Court held that it is not mere against government of the day but the Student Notes:
institutions as symbol of state.
• Various verdicts in Romesh Thappar, Kanahiya Kumar case re- defined a seditious act only if
it had essential ingredients as:
o Disruption of public order,
o Attempt to violently overthrow a lawful government,
o Threatening the security of State or of public

Views of the Law Commission

• While it is essential to protect national integrity, it should not be misused as a tool to curb
free speech. Dissent and criticism are essential ingredients of a robust public debate on
policy issues as part of vibrant democracy.
• Hence, Section 124A should be invoked only in cases where the intention behind any act is
to disrupt public order or to overthrow the government with violence and illegal means.
Way Forward
• The guidelines of the SC must be incorporated in Section 124A as well by amendment to
IPC so that any ambiguity must be removed. A private member bill was introduced in 2015
to amend this section. The Bill suggested that only those actions/words that directly result
in the use of violence or incitement to violence should be termed seditious.
• The state police must be sufficiently guided as to where the section must be imposed and
where not.

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• Need to include provisions where the government can be penalized, if it misuses the Student Notes:
section. This will ensure that section 124 A of IPC strikes a balance between security and
smooth functioning of state with the fundamental right of freedom of speech and
expression.
6.8.9.5. Hate Speech
Hate speech poses complex challenge to freedom of speech and expression. However, the
question is what should be considered as a hate speech without curbing the freedom of speech
and expression. In this regard, Law Commission has defined it as “incitement to hatred
primarily against a group of persons defined in terms of race, ethnicity, gender, sexual
orientation, religious belief and the like”. Thus, “hate speech is any word written or spoken,
signs, visible representations within the hearing or sight of a person with the intention to cause
fear or alarm, or incitement to violence.”
T.K. Viswanathan committee, constituted by the Centre, has recommended introducing
stringent provisions for hate speech.
Observations of the Committee
• It was of the opinion that it was more effective to insert the substantive provisions in the
IPC instead of the IT Act, since the IT Act was primarily concerned with e-commerce
regulation.
• Section 78 of the IT Act primarily ‘dealt with capacity building’ and needs to be relooked to
sensitize the officers and give them support with electronic expertise, computer- forensics
and digital-forensics.
• It has recommended amendments in CrPC to enable each state to have a State Cyber
Crime Coordinator (Sec 25B) and a District Cyber Crime Cell (Sec 25C).
• The offensive speech should be “highly disparaging, abusive or inflammatory against any
person or group of persons”, and should be uttered with the intention to cause “fear of
injury or alarm”.
• The committee also expressed the desirability of having guidelines in place to prevent the
abuse of provisions by investigation agencies and to safeguard innocent users of social
media.
• Many recommendations were taken from the Law Commission report, which are-
o Insertion of Section 153C to prohibit incitement of hatred through online speech on
grounds of religion, caste, community, gender, sexual orientation, tribe, language, place
of birth etc.
o Section 505A was proposed to be inserted by the Law Commission to prevent causing
of alarm, fear, provocation of violence etc. on grounds of identity.
o It was clarified that the need for intent has to be established.
Concerns associated with Committee’s recommendations –
• The Law Commission identifies the status of the author of the speech, the status of victims
of the speech, the potential impact of the speech, in order to qualify something as Hate
Speech. However, these concerns are apparently not well reflected in the committee
report.
• Besides, extremely broad terms like, highly disparaging, indecent, abusive, inflammatory,
false or grossly offensive information, etc., have been used by the report which takes us
back to the ambiguity that the section 66A held.
Conclusion
• It is vital to examine the context in which speech is made in order to properly determine
the motivation behind it – and the effect it is likely to have. The dangerousness of speech

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cannot be estimated outside the context in which it was made or disseminated, and its Student Notes:
original message can become lost in translation.
• Supreme Court in Pravasi Bhalai Sangathan v. Union of India in 2014, states that hate
speech must be viewed through the lens of the right to equality. However, few loopholes
need to be plugged when it comes to regulation of hate speeches, so as to transform our
country from being a procedural democracy to also a substantive one.
6.8.9.6 Defamation
In 2016, Supreme Court upheld the constitutional validity of the country’s colonial-era criminal
defamation laws, ruling that they are not in conflict with the right to free speech. Under
sections 499 and 500 of the Indian Penal Code, defamation is a criminal offence. Defamatory
acts can include “words either spoken or intended to be read”, signs or visible representations,
which are published or put up in the public domain. The offence is punishable with up to two
years imprisonment, a fine or both.
Why it should be retained?
• Reputation of an individual, constituent in Article 21 is an equally important right as free
speech.
• Criminalization of defamation to protect individual dignity and reputation is a “reasonable
restriction”
• Editors have to take the responsibility of everything they publish as it has far-reaching
consequences in an individual and country’s life
• The acts of expression should be looked at both from the perspective of the speaker and
the place at which he speaks, the audience etc.
• It has been part of statutory law for over 70 years. It has neither diluted our vibrant
democracy nor abridged free speech
• Protection for “legitimate criticism” on a question of public interest is available in the
o Civil law of defamation &
o Under exceptions of Section 499 IPC
• Mere misuse or abuse of law can never be a reason to render a provision unconstitutional
rather lower judiciary must be sensitized to prevent misuse
• Monetary compensation in civil defamation is not proportional to the excessive harm done
to the reputation
Significance of this judgement
• The judgement raises reputation to the level of “shared value of the collective” and elevates
it to the status of a fundamental right under Article 21 of the Constitution.
• According to the judgement, the theory of balancing of rights dictates that along with the
right to freedom of speech and expression, there is a correlative duty on citizens not to
interfere with the liberty of others, as everyone is entitled to the dignity of person and of
reputation.
Why it should be retained?
• Freedom of speech and expression of media is important for a vibrant democracy and the
threat of prosecution alone is enough to suppress the truth. Many times the influential
people misuse this provision to suppress any voices against them.
• Considering anecdotal evidence, every dissent may be taken as unpalatable criticism.
• The right to reputation cannot be extended to collectives such as the government, which
has the resources to set right damage to their reputations.
• The process in the criminal cases itself becomes a punishment for the accused as it requires
him to be personally present along with a lawyer on each date of hearing.

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• Given that a civil remedy to defamation already exists, no purpose is served by retaining the Student Notes:
criminal remedy except to coerce, harass and threaten.
• It goes against the global trend of decriminalizing defamation
o Many countries, including neighbouring Sri Lanka, have decriminalized defamation.
o 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.
6.8.9.7 Banning of films and books
In India, there have been regular protests and violence over the publication of a book, cartoon
or release of a movie which certain sections claim as to be offensive to them. They resort to
violence, protests and shutdowns resulting in damage to life and property. As a result,
governments often ban such expression of arts citing law and order problem. This directly
surmounts to curbing the freedom of speech and expression of the artists and stifling the free
speech in the country. In this context, SC in several judgments has held such bans to be illegal. It
has opined that once an expert body has cleared the film, it is no excuse to say that there may
be a law and order situation. It is for the government to see that law and order is maintained. In
any democratic society there are bound to be divergent views. Merely because a small section
of the society has a different view and choose to express their views by unlawful means can be
no ground for such bans. It is the duty of the government to ensure law and order.
6.8.9.8. Right to access internet
Recently, Supreme Court has delivered verdict on a bunch of petitions challenging the
restrictions imposed on internet services and movement of people in Jammu and Kashmir.
Internet shutdowns
• India tops the list of Internet shutdowns globally. According to Software Freedom Law
Center’s tracker, there have been 381 shutdowns since 2012, 106 of which were in 2019.
• The ongoing shutdown in Kashmir is the longest ever in any democratic country.
• Legislative provisions:
o Suspension of Internet services are dealt with under the Information Technology Act,
2000, the Criminal Procedure Code (CrPC), 1973 and the Telegraph Act, 1885.
o Before 2017, Internet suspension orders were issued underSection 144 of the CrPC. But,
in 2017, the central government notified the Temporary Suspension of Telecom
Services (Public Emergency or Public Service) Rules under the Telegraph Act to govern
suspension of Internet.
▪ Despite the 2017 rules, the government has often used the broad powers under
Section 144 CrPC.
• Economic cost: India lost over $1.3 billion in internet shutdowns across the country in 2019
— making it the third-most economically affected country after Iraq and Sudan.
• Justifications for shutdowns: o The shutdown is based on analysis of intelligence inputs.
This is a preventive measure used by the law & order administration as a last resort to
address mass protests, civil unrest, so as to ensure peace. o In certain extreme situations
where rumours through WhatsApp and other social media start playing a disruptive role, it
may become necessary to have internet shutdowns.
Arguments against
• Internet activists, law experts, and human rights agencies suggest that there is no real
evidence of Internet shutdown actually helping in preventing mass protests or civil unrest.
• Internet shutdowns make human rights a hostage to the whims of the executive: the
fundamental rights to speech, conduct business, access healthcare, express dissent, and
movement of the people in a state, are compromised.

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• Shutting the internet results is an information blackout that can also create hysteria, panic Student Notes:
and can result in even more discord.
Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017
(Suspension Rules)
• These Rules were framed by ministry of communications and derive their powers from Section 5(2)
of the Indian Telegraph Act, which talks about interception of messages in the “interests of the
sovereignty and integrity of India”.
• It empowers the government to block transmission of messages in case of a public emergency or
for public safety in any part of the country.
• Any order suspending internet under the Rules, can be only for a temporary duration and not for an
indefinite period.
• Directions to suspend the telecom services shall not be issued except by Home Secretary of the
country and a secretary of a state’s home department and that order should be taken up by a
review committee within five days.
UN Resolution on Internet Shutdown
• In 2016, the United Nations Human Rights Council released a non-binding resolution condemning
intentional disruption of internet access by governments.
• The resolution reaffirmed that "the same rights people have offline must also be protected online”.
Supreme Court’s observation On Internet shutdown
• Freedom of speech and expression through the medium of internet is a fundamental right
under Article 19(1)(a) of the Constitution.
• The restrictions on internet have to follow the principles of proportionality under Article
19(2).
o Doctrine of proportionality is a principle that is prominently used as a ground for
judicial review in cases of administrative action.
o The doctrine essentially signifies that the punishment should not be disproportionate
to the offence committed or the nature and extent of the State’s interference with the
exercise of a right must be proportionate to the goal it seeks to achieve.
• Freedom of trade and commerce through internet is also a constitutionally protected right
under Article 19(1)(g).
• Suspension of internet for indefinite period not permissible. It can only be for a reasonable
duration and periodic review should be done. Government should publish all orders of
prohibition to enable affected persons to challenge the same.
On Section 144 of CrPC:
• The power under Section 144, cannot be used to suppress legitimate expression of opinion
or grievance or exercise of any democratic rights
• When Sec 144 is imposed for reasons of apprehended danger, that danger must be an
“emergency”.
• The imposition of Sec 144 must strike a balance between the rights of the individual and
the concerns of the state.
• Powers under Sec 144 should be exercised in a reasonable and bona fide manner, and the
order must state material facts in order to enable judicial review.
Conclusion
• Expression through the Internet has gained contemporary relevance and is one of the major
means of information diffusion. Before completing blocking the Internet, it is essential to
conduct a proportionality and necessity test. It is crucial to consider whether the same
objective can be achieved by a less intrusive and more effective solution such as
deployment of the police force and running advisories on media.
• At the same time, in the interest of transparency, government should document the
reasons, time, alternatives considered, decision-making authorities and the rules under
which the shutdowns were imposed and release the documents for public scrutiny.

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6.8.9.9. Caste Rallies Student Notes:

19 (1)(b) itself mentions the restriction, that is, Freedom to assemble peacefully without arms.
Other restrictions are found in 19(3), which are as follows:
• Sovereignty and integrity of India
• Public Order
Lucknow bench of Allahabad HC in 2013 has banned caste rallies on the ground that they
disturb public order and creates animosity between castes. This order is being contested as it
seems to violate Art. 19(1)(b).
6.8.9.10. Right to strike in case of Govt. Officials
Trade Unions have the right to strike under certain circumstances in Industrial Disputes Act.
However, for the government officials, SC has held that right to strike is available only as a last
resort, when all other channels of communication have failed. However, it can not be deemed
to be coming under the cover of Fundamental Rights. Hence, the government can invoke
Essential Services Maintenance Act in such situations and force to call off the strike.
SC in T.K. Rangarajan vs. State of Tamil Nadu held that govt. officials don’t have the fundamental
right to strike.

6.9. Article 20- Protection in respect of Conviction for Offences

6.9.1. Text
Protection in respect of conviction for offences.
1) No person shall be convicted of any offence except for violation of a law in force at the time
of the commission of the Act charged as an offence, nor be subjected to a penalty greater
than that which might have been inflicted under the law in force at the time of the
commission of the offence.
2) No person shall be prosecuted and punished for the same offence more than once.
3) No person accused of any offence shall be compelled to be a witness against himself.

6.9.2. Description
Article 20(1) guarantees rights against ex-post facto laws. Only a law in force at the time of
commission of the said offence can be used to punish an accused. However, such a protection is
available only in case of criminal laws and not civil laws.
Article 20(2) provides protection from double jeopardy. It states that an individual can be
punished for an offence only once. Departmental inquiries are however not treated as violation
of this principle.
Article 20(3) protects an individual from self-incrimination. Every person has the right to defend
himself. In Selvi vs. State of Karnataka SC has put restrictions on narco analysis and brain
mapping. However, DNA testing and other samples can be taken.
6.9.3. Controversies
6.9.3.1. Vodafone case

In 2012, the Government of India made budgetary proposal to amend the Income Tax Act with
retrospective effect from 1962 to assert the government's right to levy tax on merger and
acquisition (M&A) deals involving overseas companies with business assets in India. It was
partly to override the Supreme Courts’ ruling favoring Vodafone in a tax dispute. Notably, the
government could bring in such an amendment because it was a tax law, not a criminal law.
However, the Parthasarathi Shome committee later recommended that either the

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restrospective tax amendment be withdrawn or penalty/interest, if covered under taxes, be Student Notes:
waived off.
6.9.3.2. Aftermath of 16th December 2012, Nirbhaya incident
After the notorious gang rape incident in Delhi, even though public sentiment favored harsher
punishment for all the six accused in the Nirbhaya gang rape case — one of them being a minor
— any revision in the juvenile age would not help the case as the amendment shall not apply
with retrospective effect.
6.9.4. Applicability
Applies to all – individuals whether Indian citizens or foreigners.

6.10. Article 21 – Right to Life and Liberty

6.10.1. Text
Protection of life and personal liberty.
No person shall be deprived of his life or personal liberty except according to procedure
established by law.
6.10.2. Description
This article is a check on arbitrary powers of the State. The State must act according to a
procedure while depriving an individual of his liberty.
Procedure established by law has been borrowed from the British tradition. It checks whether
the law is procedurally correct. However, judiciary is not allowed to challenge the intentions of
the law.
Due process of law is a facet of American judiciary. Judiciary can challenge the law not only on
procedural grounds but also on the basis of its reasonableness.
6.10.3. Due Process of Law
It implies that law has to be fair and reasonable. If it is not, then it is liable to be struck down
even if the prescribed procedure is followed. It is also known as Principle of Natural justice. The
constitutional guarantee of due process of law, found in fifth and fourteenth amendment to the
US Constitution, prohibits all levels of government from arbitrarily or unfairly depriving
individuals of their basic constitutional rights to life, liberty and property. It is because of this
principle that the Supreme Court of USA has acquired more powers than Apex Courts in other
countries, including India.

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Student Notes:

6.10.4. Status in India

6.10.4.1. Maneka Gandhi case (1978)
Supreme Court accepted that due process is inherent in procedure established by law. SC in this
case applied the American principle of “due process of law” for the first time. It applied the
following arguments:
• Article 19 and 21 can’t be understood as watertight compartments and the same criteria of
reasonableness must be applied for Article 21 too.
• Merely following the procedure established by law is not enough. The courts have the right
to review and question the reasonableness of the law itself.
• Restrictions must be reasonable, just and fair and shouldn’t be arbitrary.
In India, traditionally we followed the principle of “procedure established by law”, as it
prevailed in Britain. However since 1978, we have followed both in India.

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6.10.4.2. A.K. Gopalan Case (1950) Student Notes:

The Supreme Court held that due process of law is not available in India. Hence, it implied that
the right only protects life and liberty of an individual from arbitrary executive action, and not
from legislative action. Further, it was enough if the procedure was followed and the courts
could not inquire into the reasonableness of the procedure.
6.10.5. Impact of National Emergency and Applicability
Rights under Article 20 and 21 are never suspended and both are available to all individuals
whether Indian citizens or foreigners.

6.10.6. Right to Death/Suicide

In Gyan Pal case, SC has settled the controversy by clearly establishing that there is no right to
suicide and death. Thus section 309 of IPC, which criminalizes attempt to suicide doesn’t violate
Article 21.
6.10.7. Death Penalty/Capital Punishment
While global trend is in favor of abolishment of death penalty, India continues to find itself in
mix of countries such as China, Iran, Pakistan, USA where it has not been completely abolished.
The proponents of death penalty hail it for its deterrent capacity. Further, there are some
crimes, which are so heinous that nothing short of death penalty meets the ends of justice. In
cases like terrorism, if terrorists are not executed then they continue to pose a grave threat to
national security.
However following arguments are made in favor of abolishing death penalty.
• No sufficient data to support the deterrent logic.
• Study conducted in USA shows that the state abolishing death penalty had witnessed the
fall in murders.
• The principle of revenge (eye for an eye) cannot be the basis of justice in any civilized
society
• The purpose of punishment should be to reform rather than to punish
• In Bachan Singh case, the Supreme Court sought to strike a balance. It proclaimed that
death penalty is an exception not a rule. It proclaimed the doctrine of “rarest of the rare”.
• There is also possibility of error in judgment as admitted by the SC in 2009 in “Santosh
Kumar v/s State of Maharastra case”. It admitted that there are at least 13 cases in which
death penalty was awarded, the doctrine of “rarest of the rare” was not applied. Out of
these, 2 persons have already been executed.
• United Nation’s Declaration on Human Rights also expects the state to abolish torturous
punishments and death penalty.
It is argued that for heinous crimes such as rape and murder, life imprisonment can be a better
option.
6.10.8. Right to Privacy
In Justice K. S. Puttaswamy (retd.) vs Union of India (2017), a nine-judge Constitution Bench of
the Supreme Court ruled that right to privacy is an intrinsic part of life and liberty under Article
21. However, the court held that privacy is not an absolute right.

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Student Notes:

The government can introduce a law which “intrudes” into privacy for public and legitimate
state reasons. Legitimate aims of the state would include for instance protecting national
security, preventing and investigating crime, encouraging innovation and the spread of
knowledge and preventing the dissipation of social welfare benefits. But a person can challenge
this law in country’s constitutional courts for violation of his fundamental right to privacy.
6.10.9. Euthanasia/Mercy killing
Aruna Shaunbag case, SC permitted passive euthanasia but not active euthanasia.

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6.10.9.1. Active Euthanasia Student Notes:

Means ending the life of a person by giving him active means like lethal injections, drugs etc.
6.10.9.2. Passive Euthanasia
Means taking out the life support systems. It is allowed by SC to be done under guarded
circumstances only.
In March, 2018, Supreme Court ruled that the right to die with dignity is a fundamental right,
saying that an individual could make an advance "living will" that would authorize passive
euthanasia under certain circumstances. The Court held that passive euthanasia and living will
were legally valid.
6.10.9.3. Living Will
Living will is a written document that allows a patient to give explicit instructions in advance
about the medical treatment to be administered when he or she is terminally-ill or no longer
able to express informed consent.
6.10.9.4. Guarded Circumstances
Once request for mercy killing is made by the patient or close relatives, the case is considered
by a committee of HC judges of at least two members. This committee will make
recommendation on the basis of opinion of three-member committee of doctors.
6.10.10. Right to choose
Right to Choose guarantees individuals the right to personal autonomy, which means that a
person's decisions regarding his or her personal life are respected so long as he/she is not a
nuisance to society. However, higher judiciary has taken differing opinions on this right.
• Supreme Court in Hadiya Case in 2018 held that a person's right to choose a religion and
marry is an intrinsic part of a person’s meaningful existence. Neither the State nor
“patriarchal supremacy” can interfere in his/her decision. Freedom of faith is essential to
his/her autonomy; choosing a faith is the substratum of individuality and sans it, the right
of choice becomes a shadow, The Constitution guarantees to each individual the right freely
to practise, profess and propagate religion. Choices of faith and belief as indeed choices in
matters of marriage lie within an area where individual autonomy is supreme.
• Patna High Court in the Confederation of Indian Alcoholic Beverage Companies v State of
Bihar (2016) held the imposition of “prohibition” in Bihar as unconstitutional. It addressed
the question of imposition of prohibition in terms of its impact on the right to life and
liberty of a citizen. Supreme Court, however, has stayed the operation of the Patna High
Court judgment.
• Bombay High Court in High Court on Its Own Motion v State of Maharashtra (2016), read
in “choice” as a ground on which a woman may lawfully seek an abortion, even though the
Medical Termination of Pregnancy Act, 1971 only permits abortions on the ground that the
pregnancy might affect the mental health of the woman.
• Bombay High Court, in Shaikh Zahid Mukhtiar v State of Maharashtra (2016), struck down
the sections of Maharashtra Animal Preservation Act, 1976, on the grounds that it is a
breach of Article 21, specifically the right to consume food of one’s choice in private.
• Supreme Court overturned Delhi High Court’s judgment decriminalizing voluntary
homosexual acts on the premise (among other things) that it was a violation of the right to
privacy of the individual, which is part of the right to life of a person (Suresh Kumar Koushal
v Naz Foundation (2014)). It refused to even engage in the argument that LGBTQ persons
may have rights.

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6.11. Article 21A Student Notes:

6.11.1. Text of Right to education

The State shall provide free and compulsory education to all children of the age of six to
fourteen years in such manner as the State may, by law, determine.
6.11.2. Description/Historical Evolution
In 1992, the Supreme Court held in Mohini Jain case that the “right to education” is part of
“right to life” and hence is a fundamental right under Part III of the Constitution.
The Supreme Court Judgment in Unni Krishnan case further reinforced the same when it
affirmed that right to education flows from the right to life guaranteed under Article 21 and
draws its support from the Directive Principles of the Constitution, Article 41 and 45.
Article 41 provides for right to education. Article 45 originally required the State to make
provisions within 10 years for free and compulsory education for all children until they achieved
the age of 14 years. It has been replaced by 86th Amendment Act.
Notably, SC held that this too is not an absolute right. It shall depend on the state to determine
the manner in which it shall implement the right.
The demand for RTE was first made by Gopal Krishna Gokhale during British times. After 100
years of this, RTE came into existence.
6.11.3. 86th Amendment Act
The 86th Amendment Act brought about the following changes to the Constitution:
• Under Article 21A, every child between the age of 6-14 has a fundamental right to
education, which the State shall provide “in such a manner the State may, by law,
determine”
• Early childhood care and protection (for children in the age group of 0-6) is provided for as
a directive principle of State Policy under Article 45 of the Constitution.
• Article 51 (K) provides a duty on those who are parent or guardian, to provide opportunities
for education to his child or, as the case may be, ward between the age 8-14.

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Student Notes:

6.11.4. Evaluation of RTE

• There are no specific penalties if the authorities fail to provide the right to elementary
education.
• Both the state government and the local authority have the duty to provide free and
compulsory elementary education. Sharing of this duty may lead to neither government
being held accountable.
• The Bill provides for the right to schooling and physical infrastructure but does not
guarantee that children learn. It exempts government schools from any consequences if
they do not meet the specified norms.
• The Bill legitimizes the practice of multi-grade teaching. The number of teachers shall be
based on the number of students rather than by grade.
• Enrolment has reached universal levels but the problem of dropouts and absenteeism
continues
• Also, the act doesn’t provide for those who cannot go to school
• Hence, it is said that it is a right to schooling instead of the right to education

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• Bulk of the schools fail to meet the targets of improving infrastructure Student Notes:
• There is a big deficit in the country with respect to the availability of untrained teachers
• Some people believe that not failing a child is not a good option as it relieves the teachers
from responsibility.
6.11.5. Applicability
Applies to all children in the relevant age group whether Indian citizens or not.

6.12. Article 22- Protection against Arrest and Detention in Certain

Cases
6.12.1. Text
Protection against arrest and detention in certain cases.
1) No person who is arrested shall be detained in custody without being informed, as soon as
may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice.
2) Every person who is arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty-four hours of such arrest excluding the time necessary
for the journey from the place of arrest to the court of the magistrate and no such person
shall be detained in custody beyond the said period without the authority of a magistrate.
3) Nothing in clauses (1) and (2) shall apply—
a) to any person who for the time being is an enemy alien; or
b) to any person who is arrested or detained under any law providing for preventive
detention.
4) No law providing for preventive detention shall authorize the detention of a person for a
longer period than three months unless—
a) an Advisory Board consisting of persons who are, or have been, or are qualified to be
appointed as, Judges of a High Court has reported before the expiration of the said
period of three months that there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorise the detention of any person
beyond the maximum period prescribed by any law made by Parliament under sub-
clause (b) of clause (7); or
b) such person is detained in accordance with the provisions of any law made by
Parliament under sub-clauses (a) and (b) of clause (7).
5) When any person is detained in pursuance of an order made under any law providing for
preventive detention, the authority making the order shall, as soon as may be,
communicate to such person the grounds on which the order has been made and shall
afford him the earliest opportunity of making a (b) to any person who is arrested or
detained under any law providing for preventive detention.
6) Nothing in clause (5) shall require the authority making any such order as is referred to in
that clause to disclose facts which such authority considers to be against the public interest
to disclose.
6.12.2. Description
Article 22 provides for 2 kinds of detentions-
• Preventive detention; and
• Punitive detention
Protection in case of punitive detention is available to citizens and no-citizens but not to enemy
aliens. A person must be informed of the grounds of his arrest so that he can prepare for his
defense. The person also has the right to consult and be defended by the legal practitioner of
his choice. Such an individual must be presented before a magistrate within 24 hours so that
any wrong action of the executive can be corrected.

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The objective of preventive detention is to prevent a person from committing a crime. Certain Student Notes:
rights are available to such a person as well. He must be informed of the grounds of his arrest.
Police cannot detain a person beyond 3 months unless it has permission from an advisory board.
Such an advisor board will consist of 3 judges of SC. Parliament can also prescribe a law
providing for detention beyond 3 months.
6.12.2.1. Criticism of Preventive Detention
In India, there has been a misuse of such laws and so it has become a human rights concern. It
represents the police power of the State. No other democratic country mentions preventive
detention in its constitution and such laws come into effect only under emergency conditions.
6.12.2.2. Arguments given in favor of Preventive detention
Areas in context of which preventive laws can be made are laid down in the Constitution itself
in Union List entry 9 related to defense, foreign affairs and security of the country and
Concurrent List entry 3 for maintenance of public order, security of state and maintaining
essential supply and services. Thus, it checks the arbitrary action by the State.
6.12.3. Legislations
The below mentioned acts have a provision to detain beyond three months:
• National Security Act,
• Conservation of Foreign Exchange and Prevention of Smuggling Act (COFEPOSA); and
• Prevention of Terrorism Act (POTA)Likewise, many states have come up with similar acts.
Both at the central and state level, there are around forty laws in the statute book of India
authorizing preventive detention.
6.12.4. Court Judgments
• In case of arrest of Anna Hazare in 2011, SC held that preventive detention law can be
invoked only if there is "imminent danger to peace" and a person sought to be arrested is
likely to commit a cognisable offence. Otherwise it would violate the victim's fundamental
right.
• In another judgment, SC held that rhetorical incantation of word “goonda” or “prejudicial to
maintenance of public order” cannot be sufficient justification to invoke the draconian
powers of preventive detention. It quashed preventive detention of a man who was
accused of selling spurious chilli seeds to farmers. It observed that when sufficient
remedies for offence were available under ordinary laws, preventive detention must not be
invoked. It cannot be an alternative to normal legal process. Order of preventive detention
affects the life and liberty of citizen under Articles 14, 19, 21 and 22 and hence should be
used cautiously. It came down heavily on the practice of states to use preventive detention
laws to avoid efforts in investigation and prosecution.

6.13. Article 23 – Prohibition of Traffic in Humans and Forced

Labor
6.13.1. Text
Prohibition of traffic in human beings and forced labor.
1) Traffic in human beings and begar and other similar forms of forced labor are prohibited
and any contravention of this provision shall be an offence punishable in accordance with
law.
2) Nothing in this article shall prevent the State from imposing compulsory service for public
purposes, and in imposing such service the State shall not make any discrimination on
grounds only of religion, race, caste or class or any of them.

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6.13.2. Description Student Notes:

Article 23(1) abolishes any form of bonded labor, forced labor and trafficking in human beings.
It has special significance for SC/STs and women. “Begar” is described as labor or service,
which a person is forced to give without receiving any remuneration for it. It is also known as
“debt bondage”.
Article 23(2) states that State can impose compulsory service if there is a need for the same.
Notably, Devadasi system has been abolished because of the prohibition of above article.
6.13.3. Legislations
To check human trafficking, following legislations have been made:
• Immoral Traffic Prevention Act (ITPA), 1956
• Bonded Labor System (Abolition) Act, 1976
• Juvenile Justice (Care and Protection) Act, 2000
6.13.4. Applicability
It is available both to citizens and non-citizens.

6.14. Article 24 – Prohibition of employment of children

6.14.1. Text
Prohibition of employment of children in factories, etc.—No child below the age of fourteen
years shall be employed to work in any factory or mine or engaged in any other hazardous
employment.
6.14.2. Description
Article 24 prohibits the employment of children in hazardous occupations. However, it does not
prohibit their employment in harmless work.
Note: Article 23 and 24 are complemented by Article 39(e) and 39(f).
6.14.3. Legislations
Child Labor (Prohibition and Regulation) Act, 1986 is the legislation to check child labor. The Act
prohibits employment of children below 14 years in certain occupations such as automobile
workshops, bidi-making, carpet weaving, handloom and power loom industry, mines and
domestic work.
In 2016, Parliament passed Child Labour (Prohibition and Regulation) Amendment Act, 2016.
It amends 1986 Act to widen its scope against child labour and stricter punishments for
violation.

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Student Notes:

The Commission for Protection of Child Rights Act, 2005 was enacted to provide for speedy
trials of offences committed against children and violation of child rights.
In 2006, government banned the employment of children as domestic servants or working
establishments like hotels. It warned that anyone employing children below the age of 14 years
is liable for penal action.
6.14.4. Applicability
It is available to all children regardless of citizenship status.

6.15. Article 25
Freedom of conscience and free profession, practice and propagation of religion.
1) Subject to public order, morality and health and to the other provisions of this Part, all
persons are equally entitled to freedom of conscience and the right freely to profess,
practice and propagate religion.
2) Nothing in this article shall affect the operation of any existing law or prevent the State
from making any law—

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a) regulating or restricting any economic, financial, political or other secular activity which Student Notes:
may be associated with religious practice;
b) 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.

6.15.1. Description
Explanation I. The wearing and carrying of kirpans shall be deemed to be included in the
profession of the Sikh religion.
Explanation II. In sub-clause (b) of clause (2), the reference to Hindus shall be construed as
including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the
reference to Hindu religious institutions shall be construed accordingly.
6.15.2. Applicability
Also, these rights are available to all persons—citizens as well as non-citizens.

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Student Notes:

6.15.3. Important Judgments

6.15.3.1. Jagadishwaranand case, 1984
The Supreme Court held that the Anand Margi practice of dancing with skulls is not essential to
its religion and could be reasonably restricted. Similarly, cow slaughter is not considered
essential to Islam on Bakrid Day. Thus, the state can regulate what constitutes the essential
religious practices and what does not and outlaw the latter if it is anti-social.
6.15.3.2. Stainislau v/s State of MP, 1977
Constitution bench of the Supreme Court ruled that Article 25(1) doesn’t give the right to
convert but only the right to spread tenets of one’s own religion.
Thus, only voluntary conversions are valid in India. In fact, some states have passed anti-
conversion laws prohibiting forced conversions.

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6.16. Article 26 Student Notes:

6.16.1. Text
Freedom to manage religious affairs—subject to public order, morality and health, every
religious denomination or any section thereof shall have the right—
a) to establish and maintain institutions for religious and charitable purposes;
b) to manage its own affairs in matters of religion;
c) to own and acquire movable and immovable property; and
d) to administer such property in accordance with law.
6.16.2. Description
Article 26 states that a religion has a right to
• Establish and maintain its institutions for religious and charitable purposes,
• Manage its own affairs and
• Acquire property for the same.
• The State can make laws to regulate the administration of such property, but it cannot take
away the right to administration altogether.
This freedom is, however, subject to public order, morality and health.
Note- The “religious denomination” must satisfy three conditions. It must be a collection of
individuals who has a system of beliefs or doctrine which they regard as conducive to their
spiritual well-being. These include a common faith, common organisation and designation by a
distinctive name.
Note – while right to property of an individual is not a Fundamental Right anymore, for religious
denomination it continues to be a Fundamental Right.
Note: In a January 2014 verdict the Supreme Court quashed the Tamil Nadu government's order
appointing executive officer to manage the affairs and properties of the ancient Sri
Sabhanayagar Temple, better known as Nataraja temple, in Chidambaram in Tamil Nadu. The
SC Bench held that the temple will be managed by priests and cannot be taken over by the state
government over allegations of mismanagement of temple properties.
6.16.3. Relation with Article 25
Article 25 gives freedom to an individual, while Article 26 deals with an entire religious
denomination or any of its section.
6.16.4. Sabarimala Temple Issue
Recently, the Supreme Court has deferred its decision on review of “2018 Sabarimala verdict”
until a Seven Judges’ Bench examines broader issues such as essentiality of religious practices
and constitutional morality.
Background of the issue
• Sabarimala temple’s age-old practice barred women in their reproductive phases (when
they were at the menstruating phase) from entering the temple on the ground that the
presiding deity was a complete celibate.
• In the “Indian Young Lawyers Association & Others vs The State of Kerala & Others” case,
2018, a five- judge bench had delivered a landmark 4:1 ruling setting aside the decades-old
restrictions on the entry of women of reproductive age inside Sabarimala Temple.
o The judgment remarked that ban on the entry of women in Sabarimala is a kind of
untouchability, and thus violative of Article 17.

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o However, Sabrimala Temple Board had argued that these were matters of “faith”, Student Notes:
“belief” and cannot be termed as regressive, anti-women and had therefore urged the
court not to interfere with the practice
o Justice Indu Malhotra also had dissented against the majority verdict on the ground
that courts should not sit on judgement over harmless religious beliefs unless they
were pernicious practices such as sati.
• Recently, review pleas were filed against above order. The petitioners contended that the
2018 judgments suffered from an error apparent since constitutional morality is a vague
concept which cannot be utilised to undermine belief and faith.
• However, the court did not stay its earlier verdict which allowed women between the ages
of 10 and 50 to visit Sabarimala temple.
• Now, the larger Bench would also consider the entry of women into mosques and the
practice of female genital mutilation, prevalent among the Dawoodi Bohras Sect.
Implications of the Supreme Court’s fresh examination of the Sabarimala Case
• Will raise various key Constitutional questions: The seven-judges’ Bench will examine:
o Question of balancing the freedom of religion under Articles 25 and 26 of the
Constitution with other fundamental rights, particularly the Right to equality (Article
14).
o Should “essential religious practices” or the “doctrine of essentiality” be accorded
constitutional protection under Article 26 (freedom to manage religious affairs)?
o What is the “permissible
extent” of judicial Constitutional Morality
• The term ‘morality’ or ‘constitutional morality’ has not
recognition a court should
been defined in the Constitution.
give to PILs filed by people
• As per the Supreme Court, the magnitude and sweep
who do not belong to the of constitutional morality is not confined to the
religion of which practices provisions and literal text which a Constitution
are under the scanner? contains, rather it embraces within itself virtues of a
o Whether a court can probe wide magnitude such as that of ushering a pluralistic
whether a practice is and inclusive society, while adhering to the other
essential to a religion or principles of constitutionalism.
should the question be left • In the 2018 Sabarimala verdict, the majority opinion
to the respective religious defined ‘morality’ in Article 25 to mean constitutional
head? morality.
o Article 25 reads, “Subject to public order, morality
• The constitutional debate on
and health and to the other provisions of this Part,
gender equality will be all persons are equally entitled to freedom of
reopened with the larger issue conscience and the right freely to profess, practise
of whether any religion can bar and propagate religion”.
women from entering places of • As per the Supreme Court, “when there is a violation of
worship. the fundamental rights, the term ‘morality’ naturally
implies constitutional morality and any view taken by
Understanding Doctrine of the courts, must be in conformity with the principles
Essentiality and related debates and basic tenets of the concept of Constitutional
• Doctrine of essentiality: The morality.”
doctrine of “essentiality” was invented by a seven-judge Bench of the Supreme Court in the
‘Shirur Mutt’ case in 1954 in which the court held that the term “religion” will cover all
rituals and practices “integral” to a religion, and took upon itself the responsibility of
determining the essential and non-essential practices of a religion.
• Surrounding debates:
o Essentiality vs right to freedom of religion: The Supreme Court in ‘Ratilal Gandhi vs the
State of Bombay’ (1954) acknowledged that “every person has a fundamental right to

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entertain such religious beliefs as may be approved by his judgment or conscience”. Student Notes:
However, the Essentiality test impinges on this autonomy.
▪ The apex court has itself emphasised autonomy and choice in its Privacy (2017),
377 (2018), and Adultery (2018) judgments.
o Issue of Judicial overreach: The doctrine has been criticised by several constitutional
experts as it has tended to lead the court into an area that is beyond its competence,
and given judges the power to decide purely religious questions which should be
decided by the theologians.
• Issues with the conception: The concept of providing constitutional protection only to
those elements of religion, which courts consider “essential” is problematic. Such an
approach assumes that one element or practice of religion is independent of the others.
• Arbitrariness in its application: Over the years, courts have been inconsistent on this
question — in some cases they have relied on religious texts to determine essentiality, in
others on the empirical behaviour of followers, and in yet others, based on whether the
practice existed at the time the religion originated.
• Group rights vs Individual Rights: The Supreme Court has itself acknowledged that “every
individual has a fundamental right to entertain such religious beliefs”. However, the
essential practices test is antithetical to the individualistic conception of rights. Under the
test, the court privileges certain religious practices over others, thus protecting the group’s
rights.
Thus, there should be a balance in terms of determining religious freedom as well as
constitutional morality while dealing under Article 26.

6.17. Article 27
6.17.1. Text
Freedom as to payment of taxes for promotion of any particular religion.—No person shall be
compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of
expenses for the promotion or maintenance of any particular religion or religious denomination.
6.17.2. Description
Article 27 prohibits the State from spending any public money collected by way of tax for
promotion of any religion. It is one of the essential consequences of secularism. The State
cannot patronize any particular religion or religious denomination. In other words, the state
should not spend the public money collected by way of tax for the promotion or maintenance
of any particular religion. This provision prohibits the state from favoring, patronizing and
supporting one religion over the other. This means that the taxes can be used for the promotion
or maintenance of all religions.
This provision prohibits only levy of a tax and not a fee. This is because the purpose of a fee is
to control secular administration of religious institutions and not to promote or maintain
religion. Thus a fee can be levied on pilgrims to provide them some special service or safety
measures. Similarly, a fee can be levied on religious endowments for meeting the regulation
expenditure.
Note: In 2012, the Supreme Court directed the Union government to gradually reduce and
abolish Haj subsidy in 10 years and invest the amount in education and other measures for
social development of the minority community.

6.18. Article 28
6.18.1. Text
Freedom as to attendance at religious instruction or religious worship in certain educational
institutions.

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1) No religious instruction shall be provided in any educational institution wholly maintained Student Notes:
out of State funds.
2) 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.
3) 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
a minor, his guardian has given his consent thereto.
6.18.2. Description
According to Article 28,
• No religious instruction shall be provided in any educational institution wholly maintained
out of State funds.
• However, this provision does not apply to institutions administered by the state but
established under any endowment or trust, which requires imparting religious instructions.
• Further, in an educational institution recognized by the State, religious instructions can be
provided to a person but only with his consent. In case he is a minor, his guardian’s consent
is required.

6.19. Article 29
6.19.1. Text
Protection of interests of minorities.
1) 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.
2) 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.
6.19.2. Description
Article 29(1) recognizes the right of an individual to preserve his culture, his language and script.
Article 29(2) prohibits the State from making discrimination while granting access to
educational institutions.
Note: Article 15 doesn’t mention language as a ground of discrimination, but it is included in
Article 29.
Article 29 grants protection to both linguistic and religious minorities. SC has held that the
scope of this article is not restricted to minorities only and is available to “all sections” of the
population, including majority.
In Champakam Dorairajan case (1951) the reservation provided to backward sections was
challenged on the ground that it violated Article 29(2). The 1st Amendment Act was then
enacted, inserting Article 15(4) for providing reservation.
6.19.3. Applicability
Both article 29 and 30 are available to Indian citizens only.

6.20. Article 30
6.20.1. Text
Right of minorities to establish and administer educational institutions.

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1) All minorities, whether based on religion or language, shall have the right to establish and Student Notes:
administer educational institutions of their choice.
a) In making any law providing for the compulsory acquisition of any property of an
educational institution established and administered by a minority, referred to in clause
(1), the State shall ensure that the amount fixed by or determined under such law for
the acquisition of such property is such as would not restrict or abrogate the right
guaranteed under that clause.
2) The State shall not, in granting aid to educational institutions, discriminate against any
educational institution on the ground that it is under the management of a minority,
whether based on religion or language.
6.20.2. Description
Under Article 30, minorities (linguistic or religious) have the right to establish and administer
educational institutions of their choice. The State cannot impose any restrictions on the right of
the minorities except for making regulations, which promote excellence in education.
In case a minority’s property is acquired by the State, it shall be provided adequate
compensation for the same.
The State cannot discriminate while providing aid to such institutions.
The term minority has not been defined by the Constitution but literally it means a non-
dominant group.
In Presidential reference to Kerala Education Bill, and later on Guru Nanak Dev University, the
judiciary has established parameters to determine the minority status. At union level, it means
those groups, which have less than 50% population at all India level. At state level, it means
groups forming less than 50% population within the state.
6.20.3. Relation between Article 29 and 30
While Article 29 is a general protection available to all sections of the population, Article 30 is
protection available only to the linguistic or religious minorities.
6.20.4. Applicability
Articles 29 and 30, both, are available to Indian citizens only.
6.20.5. Minority Educational Institutions
What are minority educational institutions (MEIs)?
These are the institutions established to protect and promote the unique culture and traditions
of minority groups. The minority groups can either be linguistic or religious.
What are the criteria?
• The NCMEI has issued a set of guidelines for the determination of minority status of
educational institutions under Article 30.
• Effectively, there are two conditions that a school must fulfill in order to obtain minority
status:
o Most of Board or trust members must belong to the minority community.
o It must declare explicitly that it has been established for the benefit of the minority
community.
• The state authorities have prescribed similar criteria.

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Student Notes:

Recent controversies
• In 2016 the Central government has filed a fresh affidavit in SC saying a Central University,
cannot be granted minority status.
• SC was hearing an appeal against Allahabad high court Judgement 2006 in which the
minority status accorded to Aligarh Muslim University (AMU) was revoked.
• The Law Ministry has recommended revoking the 2011 order of NCMEI declaring Jamia
Millia Islamia as a religious minority institution on the same ground.
Why Provision of minority status should be retained?
• Art 26(a) states that religious denominations can establish institutions for religious and
charitable purposes. AMU and JMIU has been instrumental in bringing social change in
minority community by providing education to Muslim youth which can be considered as
charitable work under art 26 (a).
• Art 38 mandates the state to reduce inequalities among different section of society and
such MEIs AMU and JMIU act as an agent of change among minority in providing quality
and formal education
• InAzeez Basha case, 1967SC ruled that universities come under the definition of
“educational institution” in Article 30(1). Thus, in a way, it also made obligatory on
government to recognize such MEIs through statute.
• In Kerala Education bill case SC restricted the power of state in revoking minority status and
depriving the minority from establishing and managing such institutions.

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Why it should be revoked? Student Notes:

• A university cannot be conferred Minority status because it can be incorporated only by act
of Parliament. Since AMU and JMIU are established through a statute, these institutions
cannot be considered as MEIs
• Universities receiving direct funding from states cannot be accorded minority status as this
is in direct conflict with Art 27 which says that no proceeds of any taxes shall be utilized for
promotion or maintenance of any particular religion or religious denomination.
• Universities established under parliament act has to follow the reservation policy of central
government but AMU and JMIU do not provide any reservation to Scheduled Castes,
Scheduled Tribes and Other Backward Classes. Hence the minority tag provided to such
institutions is unconstitutional and illegal.
• Article 15 of the Constitution prohibits discrimination by state on grounds of religion and
conferring minority status to any institution set up by a parliament or state would be in
contravention.
• In Azeez Basha case, 1967 case, the SC upheld that AMU was not a minority educational
institution as it was set up by British legislature, and not by Muslims.
• The right under Article 30(1) is not an absolute right and it seems to be in contradiction to
Article 29(2), which prohibits denial of admission to any citizen 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.”
Privileges accorded under Minority status
• Article 30 provides that in case of compulsory takeover of property by state, due
compensation must be provided to institution.
• MEIs are out of purview of reservation policy under Art 15. Recently, Bombay High Court
came to the aid of MEIs and held that they need not reserve seats for backward class
students.
• Sect 12 of Right to Education Act (RTE) 2009, which mandates 25% reservation for children
belonging to economically weaker section (EWS), is also not applicable on MEI.
• In TMA Pai vs State of Karnataka 2002 case
o SC allowed MEIs to have separate, fair, and transparent and merit-based admission
process.
o They can also have separate fee structure but not allowed to charge capitation fee.
Challenges faced by MEIs
• MEIs hardly have any substantial autonomy asthey receive funds from the government. For
e.g. while the president of India can nullify any decision of these universities, he has no
such power in respect of private universities.
• The real issue is the maladministration of minority institutions. Many private unaided
minority institutions are in a mess and suffering from mismanagement, corruption etc. For
e.g. selling minority seats to non- minority candidates.
• Exemption from RTE act obligations has led to rent-seeking behaviour among schools.
Poorer sections among minority groups are not able to take admission in such institutions
which render the purpose of establishing such institutions defeated.
• National level Entrance exams like National Eligibility and Entrance Test (NEET) and common
counselling have now virtually taken away the minority institutions’ right to admit students
of their choice.
• Many Schools have resorted to acquire fake minority certificate to avoid obligations under
RTE act 2009.

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Way forward Student Notes:

• The minority status should not be revoked due to mere technical lacunae. After all
Minorities invest their resources, properties and time and also educate 50% non-minorities
in their institutions.
• The ambiguities and gaps in the current administrative setup must be removed so that
minority status’ is not hijacked for private interests at the expense of minority welfare and
equitable education
• More autonomy must be given to such universities in curriculum design and operation.
• The court has consistently maintained that the receipt of governmental aid does not mean
the surrender of minority character. Hence Government may provide funding to MEIs in
tune with other universities.
• The Supreme Court’s decision to exempt all minority schools from the RTE need to be
reviewed.
• The separate criteria for linguistic minorities must be evolved as criteria formulated by the
NCMEI for religious minorities cannot be applied indiscriminately on linguistic minorities.
For e.g. the medium of instruction in the linguistic minority institution must be in its
language. At present, only Maharashtra has such a requirement.
6.20.6. Important judgments
6.20.6.1. St. Stephens v/s University of Delhi, 1992
The Supreme Court ruled that minority institutions should make available at least 50% of their
annual admission intake for other communities. The admission of other communities should be
done purely on the basis of merit.
6.20.6.2. Unnikrishnan v/s State of Andhra Pradesh, 1993
Supreme Court ordered for the introduction of three types of seats:
• 15% seats are management seats and fee is not limited.
• 35% seats, wherein State government fixed fees
• 50% are free seats based on merit established by a common entrance examination
6.20.6.3. TMA Pai Foundation and others v/s State of Karnataka, 2002
Following are the essential features of the landmark judgment:
• All citizens have the rights to establish and administer educational institutions
• The right to administer MEI (Minority Educational Institution) is not absolute
• The State can apply regulations to unaided MEIs also to achieve educational excellence
• Percentage of non-minority students to be admitted to an aided MEI to be decided by the
state or university.
• Fees to be charged by unaided MEIs can’t be regulated, but no institution can charge
capitation fee.

6.20.6.4. Islamic Academy of education v/s State of Karnataka, 2003

In this case, the Supreme Court clarified its judgment in TMA Pai case. The ruling says that
Article 30 confers on linguistic and religious minorities the unqualified right to establish
educational institutions, but the government could exercise control and regulation on them for
maintaining good standards.
6.20.6.5. St. Joseph College Case, 2018
Supreme Court in April, 2018 ruled that the National Commission for Minority Educational
Institutions (NCMEI) has the power to grant an academic organisation the "valid" and binding
status of a minority institute. Section 11(f) (of the NCMEI Act) confers jurisdiction on the NCMEI

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to issue a certificate regarding the status of the minority educational institution. Student Notes:
6.20.7. The Lacuna
The issue acquires importance because the Constitution doesn’t define the words “majority”
and “minority” – a lacuna that has induced many Hindu sects like Arya Samajists, and
Ramkrishnaites to acquire the status of a minority. It is notable that Hindus are minority in five
states –Jammu and Kashmir, Punjab, Nagaland, Mizoram, Meghalaya.

6.21. Article 31
It was originally the right to property but was repealed in 1978 by the 44th Amendment Act and
made into an ordinary right under Article 300A.
Background
• The Constitution originally provided for the Right to Property as a fundamental right (F.R.)
under Articles 19 and 31.
o Article 19(1) (f) guaranteed to the Indian citizens a right to acquire, hold and dispose of
property.
o Article 31 of Indian Constitution stated that no person can be deprived of his property
without the consent of a proper authority.
o Also, Article 31(2) had put two limitations on State power of acquisition of land viz.
▪ Firstly, the compulsory acquisition or requisitioning of land should be for public
purpose.
▪ Secondly, the law enacted in that behalf should provide for compensation.
o However, after independence, it resulted in numerous litigations between the
government and citizens. Major contentious issues were:
▪ Laws enacted by government in relation to land reform measures to provide
housing to the people in the urban area
▪ Regulation of private enterprises
▪ Nationalization of some commercial undertakings.
o To narrow its scope it was modified several times by the constitutional amendments
namely 1st, 4th, 17th, 25th and 42nd Constitutional Amendment Acts.
o However, it was continued to be seen as a roadblock in socio-economic development of
the country.
o Finally, 44th Constitutional Amendment Act repealed the entire Article 31 and Article
19(1)(f) & inserted Article 300A.
Right to Property under Article 300A
• Article 300-A states that no person shall be deprived of his property save by authority of
law. This means that-
o Property is no longer a Fundamental Right, i.e. the aggrieved individual would not be
competent to move to Supreme Court under Article 32, for any violation of Art 300A.
o Also, a law will be necessary to deprive a person of his property.
• One can’t move to the Supreme Court or High Court in case this right is violated.
• Further, it protects individuals from arbitrary executive action only, not from arbitrary
legislative action.
• The state is not constitutionally bound to pay any compensation in case of acquisition.

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Student Notes:

Arguments in favour of Right to property to be reinstated as Fundamental Right

• It would protect citizens from unwarranted state action in the name of acquisition:
Compulsory land acquisition and mass displacement in the name of development have
given rise to certain socio-economic issues. Thus, there is a need of stronger checks on the
government.
• It will provide support to the judiciary: As of now the development of the Supreme Court’s
doctrinal jurisprudence is only safeguard against the fear of arbitrariness of State action.
For example- The Fair Balance test.
o The elevated status of Right to Property will aid Judiciary for effective delivery of justice.
• Tackling manipulative practices in calculating fair compensation: Land owners are at times
deprived of a fair compensation due to vagueness in laws relating to land acquisitions.
• Insecure Titles and Poor Land Records and Administration: Many citizens lack a clear title
to their land and it is accompanied by poor maintenance of land records by state
organizations. For instance, the land rights of indigenous tribes were not recognized by the
state, despite these people living in the land for generations.
Arguments in favour of Right to property remaining a legal right
• It leads to smoother Land Acquisition: India is developing country and for this purpose
land acquisition should become swifter which is facilitated by Article 300A.
• It has eased up judicial burden: Previously, the judiciary was burdened with litigations
related to property rights. However, it has come down significantly.

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• It aids government in its welfare objectives: Given the government provides a fair Student Notes:
compensation, land acquisition is necessary for fulfilling welfare purposes such as ensuring
road connectivity, making electricity accessible to all etc.
Right to Property as a Human Right
• In several cases, the Supreme Court of India has held that the right to property is not just a statutory
right but is also a human right.
• Universal Declaration of Human Rights 1948 under Section 17(i) and (ii) also recognizes right to
property. It states that-
o Everyone has the right to own property alone as well as in association with others,
o No-one shall be arbitrarily deprived of his property.
• Significance:
o provides safeguards against arbitrariness of state
o gives due importance to property as a tool of self- protection
o allows people to be entrepreneurial
Fair Balance Test
According to it taking of property without payment of an amount reasonably related its value would
normally constitute a disproportionate interference which could not be considered as justiciable.
Recent Developments-
Recently, the Supreme Court has reiterated that forcible dispossession of a person of his private
property without due process of law is a human right violation.
Conclusion
There is a need to balance the right to property with the development of the society and the
country as a whole. Few steps that can be taken in this regard are:
• Land records should be computerized.
• There is a need to develop institutions and processes that are easily accessible and provide
mechanisms to the people to definitely establish their land titles.
• Government must follow guidelines prescribed by the Supreme Court whilst calculating fair
compensation. LARR Act can be reformed in this regard.
• Large scale displacements must be avoided. But if necessary, then appropriate
rehabilitation must be provided and the compensation should cover the social cost of
displacement as well.

6.22. Article 31A

Article 31A saves 5 categories of laws from being challenged and invalidated on the ground of
contravention of Fundamental Rights conferred by Article 14 and Article 19. They are related to
agricultural land reforms, industry and commerce.
Added by 1st Amendment Act, it allows the State to nationalize private property. The idea was
to give effect to land reforms.
Both Parliament and State Legislatures can make laws. This article, however doesn’t immunize a
state law unless it has been reserved for the consideration of the President and has received his
assent.
This article also provides for payment of compensation at market value when the state acquires
a land held by a person for cultivation below the statutory ceiling limit.

6.23. Article 31B – Validation of Certain Acts and Regulations

Article 31B protects the laws in the ninth schedule from invalidation on the ground of
contravention of rights under Article 14 and 19.

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6.23.1. Controversy with respect to IX Schedule Student Notes:

The Ninth Schedule was created by a Constitution Amendment in 1951 by former Prime
Minister Jawaharlal Nehru to push land reforms. The basic purpose of the Schedule was to
abolish zamindari system. However, in recent times it has been misused. Not just land reforms
laws, the Ninth Schedule today includes several controversial legislation like the 69 per cent
reservation law of Tamil Nadu, which violates the Apex Court's 50 per cent ceiling on quotas.
Article 31B, which gives blanket protection to all items in the 9th Schedule, is also retrospective
in nature. So, even if a statute, which has already been declared unconstitutional by a court of
law is included within the schedule, it is deemed to be constitutional from the date of its
inception.
However, in IR Coehlo case (2007), the Apex Court ruled that laws placed under Ninth Schedule
after April 24, 1973 (the date of Kesavananda Bharati verdict) shall be open to challenge in
court if they violated fundamental rights guaranteed under Articles 14, 19, 20 and 21 of the
Constitution. The apex court also said that if the law put in the Ninth Schedule abridges or
abrogates fundamental rights resulting in the violation of the basic structure of the Constitution,
such laws have to be invalidated.

6.24. Article 31C- Saving of laws giving effect to directive principles

Article 31C was inserted by the 25th Amendment Act in 1971 and protects laws implementing
Directive Principles under 39(b), 39(c) from invalidation on the ground of violation of Article 14,
19 and 31.
Article 31-C had two parts. The first part protected a law giving effect to the policy of the state
towards securing the principles specified in Articles 39 (b) and (c) from being challenged on the
ground of infringement of the Fundamental Rights under Article 14, 19 and 31. The second part
of Article 31 C originally sought to oust the jurisdiction of the courts to find out whether the law
in question gave effect to the principles of Articles 39 (b) and 39 (c).
The second part was struck down in the Kesavananda Bharati case 1973, as it took away the
powers of judicial review, which was held to be a basic feature of the constitution by the
Supreme Court.
The scope of this Article was further extended through 42nd Amendment Act, in which the
immunity was provided in favor of all the DPSPs against any of the fundamental rights. It
provided that no law which gives effect to any of the directive principles (not just 39(b) and
39(C)) can be invalidated on the ground of violation of the Article 14 and 19.
However, the Apex Court in the Minerva Mill case, 1980 struck down the above provision and
thereby restored the balance between fundamental rights and directive principles.

6.25. Article 32
6.25.1. Text
Remedies for enforcement of rights conferred by this Part.
1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed.
2) 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,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part.
3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

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4) The right guaranteed by this article shall not be suspended except as otherwise provided Student Notes:
for by this Constitution.
6.25.2. Description
Article 32(1) gives the right to move the SC for the enforcement of Fundamental Rights.
However, it mentions the right to move by appropriate proceedings.
It is the duty of SC and right of persons.
SC can determine what appropriate proceedings are. The traditional approach is that the
person moving the courts should have a locus standi. However, the SC has liberalized this
approach and admits:
6.25.2.1. Public Interest Litigation
• Adopted from the USA social interest litigation.
• It’s not private interest litigation, nor a political interest litigation
• It is not a fundamental right
(Please refer to PIL portion in the document on Supreme Court for more information)
6.25.2.2. Epistolary jurisdiction
• Taking action on the basis of post card, letter.
6.25.2.3. Suo moto
• SC can take action on its own
6.25.3. Doctrine of Laches
• SC protects the rights of those who are vigilant about their rights.
• In case of unnecessary delay in approaching the courts for enforcing the rights, SC may
deny the issue of writs.
6.25.4. Doctrine of Res Judicata
• According to the dictionary meaning, 'res judicata' means a case or suit involving a
particular issue between two or more parties already decided by a court. Thereafter, if
either of the parties approaches the same court for the adjudication of the same issue, the
suit will be struck by the law of 'res judicata'.
• If a person goes first to a High Court under Article 226 and his petition is dismissed on
merits, he cannot approach the SC under Article 32 because of 'res judicata'. He can reach
the SC only by way of appeal. If, however, high court dismisses his or her writ petition not
on merits, then 'res judicata' does not apply and petitioner can move the SC
• This doctrine is applied to give recognition to the decision of courts of competent
jurisdiction.
• Same person however, can approach the SC on the same cases, if some new facts have
emerged which have not been examined by HC.

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6.25.5. Writs Student Notes:

The Constitution allows the Parliament to empower any other court to issue these writs.
However, the no such provision has been made so far. Thus, the Supreme Court (under Article
32) and the High Courts (under Article 226) can issue all the above writs, and not any other
court.
Before 1950, only the High Courts of Calcutta, Bombay and Madras had the power to issue the
writs. Article 226 now empowers all the high courts to issue the writs.

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6.25.5.1 Difference between writ jurisdiction of SC and HC Student Notes:

The Supreme Court can issue writs only for the enforcement of fundamental rights whereas a
high court can issue writs not only for the enforcement of Fundamental Rights but also for any
other purpose. The expression ‘for any other purpose’ refers to the enforcement of an ordinary
legal right. Thus, the writ jurisdiction of the High Court is wider than that of Supreme court.
Also, the Supreme Court can issue writs against a person or government throughout the
territory of India whereas a high court can issue writs against a person residing or against a
government or authority located within its territorial jurisdiction only or outside its territorial
jurisdiction, only if the cause of action arises within its territorial jurisdiction.
Further, a remedy under Article 32 is in itself a Fundamental Right and hence, the Supreme
Court may not refuse to exercise its writ jurisdiction. On the other hand, a remedy under
Article 226 is discretionary and hence, a high court may refuse to exercise its writ jurisdiction.
Hence, the Supreme Court is constituted as a defender and guarantor of the fundamental rights.
6.25.6. Importance of Article 32
Mere declaration of the fundamental right is meaningless until and unless there is an effective
machinery for enforcement of the fundamental rights. So, a right without a remedy is a
worthless declaration. The framers of our constitution adopted the special provisions in the
article 32 which provide remedies to the violated fundamental rights of a citizen. SC in IR
Coehlo case (2007), mentioned that Article 32 is integral part of the basic structure. This article
also established SC as the guardian of Fundamental Rights. It also shows the SC’s powers of
judicial review. According to Dr. Ambedkar, this Article is the soul of part-III.
6.25.7. Article 32(3)
Parliament can authorize any other court also to enforce Fundamental Rights.
Conditions:
• Without negatively effecting the powers of SC
• The other court which has been authorized to issue writs; its powers are limited within the
local limits of its jurisdiction.
6.25.8. Article 32(4)
It provides for the suspension of Article 32, in special manner as prescribed in Article 359.
6.25.7.1.Article 359-Suspension of FRs during the proclamation of national
emergency
Except rights given under Article 19, whose enforcement is automatically suspended with the
proclamation of national emergency on grounds of external aggression or war; the suspension
of other rights doesn’t happen automatically.
Rights under Article 20 and 21 are never suspended. Rest of the rights can be suspended only
when the President issues an order to suspend a right. In his order, the President has to specify
which rights, for what period and for what geographical limits.

6.26. Article 33
6.26.1. Text
Power of Parliament to modify the rights conferred by this Part in their application to Forces,
etc.—Parliament may, by law, determine to what extent any of the rights conferred by this Part
shall, in their application to,—
a) the members of the Armed Forces; or
b) the members of the Forces charged with the maintenance of public order; or

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c) persons employed in any bureau or other organisation established by the State for Student Notes:
purposes of intelligence or counter intelligence; or
d) person employed in, or in connection with, the telecommunication systems set up for the
purposes of any Force, bureau or organization referred to in clauses (a) to (c), be restricted
or abrogated so as to ensure the proper discharge of their duties and the maintenance of
discipline among them.
6.26.2. Description
Article 33 empowers the Parliament to restrict or abrogate the application of the fundamental
rights in relation to the armed forces, paramilitary forces, police etc. But it does not mean that
the article itself would abrogate any rights. The operation of this article depends upon the
parliamentary legislation, though these legislations don't need to refer this article. Such
legislation by parliament of India may restrict the operation of any fundamental rights such as
Equality, Freedom of Expression, Freedom of association, Personal Liberty etc. One such article
is Police Forces (Restriction of Rights) Act, 1966. This act was challenged in Supreme Court but
was held valid.

6.27. Article 34
6.27.1. Text
Restriction on rights conferred by this Part while martial law is in force in any area.—
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.
6.27.2. Description
Article 34 pertains to the restrictions on the fundamental rights while martial law is in force in
any area. (Martial law means law made by military authorities. Such a law is imposed by the
President, since he is the supreme commander of armed forces). The article gives indemnity by
law in respect to acts done during operations of martial law. Here we have to note that the
Constitution does not have a provision of authorizing the proclamation of martial law. The
article simply means that if there is a Government servant on duty, then he/ she is indemnified
for the acts done by him or her in connection with maintenance of law and order in the area
where martial law is in force. This act of indemnity cannot be challenged in any court on the
ground of contravention with any of the fundamental rights.

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6.28. Article 35 Student Notes:

6.28.1. Text
Legislation to give effect to the provisions of this Part.
Notwithstanding anything in this Constitution,
a) Parliament shall have, and the Legislature of a State shall not have, power to make laws—
i. with respect to any of the matters which under clause (3) of article 16, clause (3) of
article 32, article 33 and article 34 may be provided for by law made by Parliament; and
ii. for prescribing punishment for those acts which are declared to be offences under this
Part; and Parliament shall, as soon as may be after the commencement of this
Constitution, make laws for prescribing punishment for the acts referred to in sub-
clause (ii);
b) any law in force immediately before the commencement of this Constitution in the territory
of India with respect to any of the matters referred to in sub-clause (i) of clause (a) or
providing for punishment for any act referred to in sub-clause (ii) of that clause shall,
subject to the terms thereof and to any adaptations and modifications that may be made
therein under article 372, continue in force until altered or repealed or amended by
Parliament.
Explanation—In this article, the expression "law in force'' has the same meaning as in article
372.
6.28.2. Description
Article 35 states that power to make laws to give effect to FR shall vest only in the Parliament
and not State Legislatures. This would ensure that there is uniformity throughout the territory
of India in both the laws made and the punishments prescribed for offences against
Fundamental Rights.

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7. Are Fundamental Rights Absolute Student Notes:

Fundamental Rights don’t give absolute powers to an individual. They are restricted rights. In
Gopalan case, 1950, SC held that there cannot be any such thing as absolute or unmonitored
liberty, for that would lead to anarchy. On other hand, if the state has absolute powers, then
that would lead to tyranny. The purpose of Fundamental Rights is to establish rule of law and
hence there should be a balance between individual rights and social needs. That’s why
constitution empowers the Parliament to provide reasonable and fair restrictions on the
Fundamental Rights.
Grounds of reasonable restrictions are as follows:
• The grounds mentioned in article 19(2).
• Advancement of SC, ST, OBC and other weaker sections of society including women and
children.
• In the interest of general public, public order, decency and morality
• Sovereignty and integrity of India
• Security of the state
• Friendly relation with foreign state

8. Criticism of Fundamental Rights

• Although called fundamental rights, these are subject to lot of restrictions. Further what
constitutes “reasonableness” is subject to differing interpretations by courts.
• These rights provide only political rights. However political freedom is meaningless unless
there is social and freedom also.
• These rights are not sacrosanct. They can be abridged by the Parliament. Most of these get
suspended during the operation of national emergency.
• The remedy in case Fundamental Rights are violated, is costly, time consuming and in
practice inaccessible to vast majority of the population.

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 DIRECTIVE PRINCIPLES OF STATE POLICY Student Notes:

Contents
1. Directive Principles of State Policy ............................................................................................. 3
2. Historic Evolution ....................................................................................................................... 3
3. Influences ................................................................................................................................... 3
4. Characteristics of DPSP’s ............................................................................................................ 4
4.1. Ideals to be followed by the State....................................................................................... 4
4.2. Limitation on arbitrary exercise of power ........................................................................... 4
4.3. Non-Enforceable ................................................................................................................. 4
4.4. Amplification of Preamble .................................................................................................. 4
4.5. Moral Obligation ................................................................................................................. 4
5. Classification and Details of Directive Principles........................................................................ 4
5.1. Article 36 ............................................................................................................................. 5
5.1.1. Text ............................................................................................................................... 5
5.2. Article 37 ............................................................................................................................. 5
5.2.1. Text ............................................................................................................................... 5
5.2.2. Description ................................................................................................................... 5
5.3. Article 38 ............................................................................................................................. 5
5.3.1. Text ............................................................................................................................... 5
5.3.2. Description ................................................................................................................... 5
5.4. Article 39 ............................................................................................................................. 5
5.4.1. Text ............................................................................................................................... 5
5.4.2. Description ................................................................................................................... 6
5.5. Article 39A ........................................................................................................................... 6
5.5.1. Text ............................................................................................................................... 6
5.5.2. Description ................................................................................................................... 6
5.6. Article 40 ............................................................................................................................. 6
5.6.1. Text ............................................................................................................................... 6
5.6.2. Description ................................................................................................................... 6
5.7. Article 41 ............................................................................................................................. 7
5.7.1. Text ............................................................................................................................... 7
5.7.2. Description ................................................................................................................... 7
5.8. Article 42 ............................................................................................................................. 7
5.8.1. Text ............................................................................................................................... 7
5.9. Article 43 ............................................................................................................................. 7
5.9.1. Text ............................................................................................................................... 7
5.9.2. Description ................................................................................................................... 7
5.10. Article 43A ......................................................................................................................... 7
5.10.1. Text ............................................................................................................................. 7
5.10.2. Description ................................................................................................................. 7
5.11. Article 43B ......................................................................................................................... 7
5.11.1. Text ............................................................................................................................. 7
5.11.2. Description ................................................................................................................. 8
5.12. Article 44 ........................................................................................................................... 8
5.12.1. Text ............................................................................................................................. 8
5.12.2. Description ................................................................................................................. 8
5.12.3. Constitutional Provisions in support of Uniform Civil Code ....................................... 8
5.12.4. Debate Around Uniform Civil Code ............................................................................ 8
5.12.5. Recent Supreme Court judgments ............................................................................. 8
5.12.6. Benefits of Uniform Civil Code ................................................................................... 9
5.12.7. Challenges in implementing Uniform Civil Code ........................................................ 9

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5.13. Article 45 ......................................................................................................................... 10 Student Notes:

5.13.1. Text ........................................................................................................................... 10
5.13.2. Description ............................................................................................................... 10
5.14. Article 46 ......................................................................................................................... 10
5.14.1. Text ........................................................................................................................... 10
5.14.2. Description ............................................................................................................... 10
5.15. Article 47 ......................................................................................................................... 10
5.15.1. Text ........................................................................................................................... 10
5.15.2. Description ............................................................................................................... 10
5.16. Article 48 ......................................................................................................................... 10
5.16.1. Text ........................................................................................................................... 10
5.17. Article 48A ....................................................................................................................... 11
5.17.1. Text ........................................................................................................................... 11
5.17.2. Description ............................................................................................................... 11
5.18. Article 49 ......................................................................................................................... 11
5.18.1. Text ........................................................................................................................... 11
5.18.2. Description ............................................................................................................... 11
5.19. Article 50 ......................................................................................................................... 11
5.19.1. Text ........................................................................................................................... 11
5.19.2. Description ............................................................................................................... 11
5.20. Article 51 ......................................................................................................................... 11
5.20.1. Text ........................................................................................................................... 11
5.20.2. Description ............................................................................................................... 12
6. Relation with Fundamental Rights ........................................................................................... 12
7. Difference between Directive Principles of State Policy and Fundamental Rights .................. 13
8. Implementation of Directive Principles of State Policy ............................................................ 14
9. Directives and Constitutional Amendments ............................................................................ 15
10. Reasons behind Directive Principles being made non-justiciable and legally non-enforceable
..................................................................................................................................................... 15
11. Criticism of DPSP’s.................................................................................................................. 15
12. Significance of DPSP’s............................................................................................................. 16
13. UPSC Previous Years Mains Questions ................................................................................... 17
14. Vision IAS GS Mains Test Series Questions............................................................................. 17

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1. Directive Principles of State Policy Student Notes:

Political democracy is fragile unless the socio-economic foundation is strengthened with

policies that aim to establish a welfare state, i.e. one that takes primary responsibilities for the
welfare of the people, particularly those who are weak and vulnerable. It is a state that seeks to
minimize disparities and ensure equitable development. Individual rights can be enjoyed
meaningfully when social security and economic wellbeing is ensured.
Directive Principles of State Policy as enshrined in part IV of the constitution (Article 36 – 51)
represent a comprehensive program of ushering in social and economic democracy in the
country. These represent a set of principles that governments of the day – both federal and
state must keep in mind while making state policies. Though, not justiciable, they are supposed
to be fundamental to the governance of the country.
Notably some important rights such as right to work, social security etc that are not mentioned
in Part III of the Constitution, find place in DPSP’s.

2. Historic Evolution
The genesis of both Fundamental Rights and Directive Principles lies in our struggle for freedom
against the British rule. Our leaders realized the importance of political and civil rights of the
individual, as being absolutely essential for the dignity of man and development of his full
personality. At the same time, they were conscious that in the prevailing socioeconomic
conditions in the country, only a miniscule fraction of people would be able to enjoy these civil
and political rights.
The only solution for making these rights meaningful to them was to engineer the material
conditions and bring in a new social order where socio-economic justice will inform all
institutions of public life so that the preconditions of fundamental liberties for all may be
secured. The national leaders, therefore, laid the greatest stress on the necessity of bringing
about socio-economic regeneration and ensuring social and economic justice.
One of the challenges that the framers of the Constitution faced while framing provisions
relating to Fundamental Rights was to classify rights on the basis of their justiciability. In this
regard, the Sapru committee appointed by the “All Party Conference” in 1944 submitted its
report in 1945. Similarly, B.N. Rau, the Constitutional Advisor to the Constituent Assembly also
recommended similar classification of the rights of an individual. The Constituent assembly
drew from its recommendations in formulating fundamental rights and other rights in Indian
constitution.
The committee suggested two categories of rights – justiciable and non-justiciable. The former
are found as Fundamental Rights and other rights in the Indian constitution. The latter are
mentioned in Part IV of the constitution as DPSP’s, which are largely in the nature of
“instrument of instructions” to the government in making appropriate policies of socio-
economic change.

3. Influences
DPSP’s as enshrined in the Indian constitution are influenced by number of factors:
• The idea of DPSP itself was borrowed from the Constitution of Ireland.
• Government of India Act, 1935 contained a set of “Instrument of Instructions”.
• The leadership of Indian freedom struggle representing liberal democratic ideas of the west
chose to include them in the Indian Constitution as moral guidelines for public policies of
the welfare state.
• The contemporary socialist ideas also impacted the framers of the constitution. For
example, some DPSP’s related to worker welfare.

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• Constituent Assembly was also influenced by ideas of Mahatma Gandhi’s vision of India. Student Notes:
For example – directive principles related to Panchayats, promotion of village industries etc.

4. Characteristics of DPSP’s
4.1. Ideals to be followed by the State
These are constitutional recommendations/instructions to the State in legislative, executive and
administrative matters that denote the ideals that the State should keep in mind while
formulating policies and enacting laws.

4.2. Limitation on arbitrary exercise of power

According to Dr. Ambedkar, these are limitations on any one coming to power. It is a check
against political majority making attempts to hijack the vision of the Constituent Assembly with
respect to the future Indian State.

4.3. Non-Enforceable
According to Article 37, DPSP’s are not automatically enforceable in a court of law. They
become enforceable only when a law giving effect to some directive principles exists. For
example – MGNREGA for the Right to Work. However, Article 37 also holds these principles as
being fundamental to the governance of the country and imposes a duty upon the state to
apply these principles while making laws.
As held by Dr. Ambedkar, these cannot be considered to be mere pious declaration. If there is
no force of law, there is political force of public opinion. No government in India can overlook
these directions.

4.4. Amplification of Preamble

DPSP’s amplify values enshrined in the preamble to the Indian Constitution. For instance – it is
DPSP’s that give meaning to the “socialist democracy” as enshrined in the Preamble. The word
“socialist” added through the 42nd Amendment Act, was given meaning through Articles 38 and
39. Similarly, the ideal of “Secularism” was given meaning through Article 44 – wherein the goal
of uniform civil code is mentioned.

4.5. Moral Obligation

The Directive Principles impose a moral obligation on the state authorities for their application.
However, it is equally important to highlight that the main force behind them is political in
nature. This is because no government in power that rests on public opinion/popular vote can
ignore these principles while formulating policies.

5. Classification and Details of Directive Principles

Though not classified in the constitution, on the basis of their content, conventionally DPSP’s
can be classified into the following categories:
• Socialistic: Reflecting the ideology of socialism, these principles provide the framework for
a democratic socialist state, aim at providing social and economic justice, and direct
towards creation of a welfare state. For instance, articles 38, 39, 39A etc.
• Gandhian: Based on Gandhian ideology, these principles represent the programme of
reconstruction as envisioned by Gandhiji during the national movement. To fulfill the
dreams of Gandhiji, some of his ideas were included as Directive Principles. For instanve,
Article 43, 43B, 46, 47, 48.

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• Liberal-intellectual: The principles included in this category represent the ideology of Student Notes:
liberalism. For instance, articles 44, 45,48,48A,49,51.
• International Principles: The principles included in this category give effect to values that
promote internationalism and furthering and maintenance of global peace and harmony.
For instance, Articles 51A, 51B, 51C, 51F.

5.1. Article 36
5.1.1. Text
Definition—In this Part, unless the context otherwise requires, “the State” has the same
meaning as in Part III. Consequently, the definition of “the State” includes the Government and
Parliament of India and the Government and the Legislature of each of the States and all local
or other authorities within the territory of India or under the control of the Government of
India

5.2. Article 37
5.2.1. Text
Application of the principles contained in this Part—the provisions contained in this Part shall
not be enforceable by any court, but the principles therein laid down are nevertheless
fundamental in the governance of the country and it shall be the duty of the State to apply
these principles in making laws.
5.2.2. Description
Article 37 provides that DPSP’s will be non-justiciable i.e. they are not automatically
enforceable in any court of law. However, their utility lies in giving directions to the State
regarding the nature and direction of public policy. The violation of DPSP’s however, cannot be
challenged in any Court.

5.3. Article 38
5.3.1. Text
State to secure a social order for the promotion of welfare of the people.
(1) The State shall strive to promote the welfare of the people by securing and protecting as
effectively as it may a social order in which justice, social, economic and political, shall
inform all the institutions of the national life.
(2) The State shall, in particular, strive to minimize the inequalities in income, and endeavor to
eliminate inequalities in status, facilities and opportunities, not only amongst individuals
but also amongst groups of people residing in different areas or engaged in different
vocations.
5.3.2. Description
Article 38 is socialistic in its orientation. It seeks to minimize the inequality between people as
well as regions in our country. It also outlines economic, social and political justice as the goal
of the State. The difference in status, which exists in our society due to the caste system is
sought to be eliminated. The state must also try to ensure equality in opportunity of education
as well as employment.

5.4. Article 39
5.4.1. Text
Certain principles of policy to be followed by the State—The State shall, in particular, direct its
policy towards securing:

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(a) that the citizens, men and women equally, have the right to an adequate means of Student Notes:
livelihood;
(b) that the ownership and control of the material resources of the community are so
distributed as best to subserve the common good;
(c) that the operation of the economic system does not result in the concentration of wealth
and means of production to the common detriment;
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of workers, men and women, and the tender age of children
are not abused and that citizens are not forced by economic necessity to enter avocations
unsuited to their age or strength;
(f) that children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment.
5.4.2. Description
Article 39 is also socialistic in its orientation. It is a specific direction to State while formulating
its policies.
Any law, which implements article 39(b) and 39(c) cannot be held illegal on the ground that it
violates Fundamental Rights under Article 14 and 19. (Article 31C)
The State is required to ensure equality between men and women in terms of their pay when
they are performing the same duties.
Use of resources should be in public interest and should not unduly benefit a private citizen.
State must ensure that the wealth generated in the country is not concentrated and everyone
enjoys the prosperity of the nation.

5.5. Article 39A

5.5.1. Text
Equal justice and free legal aid—The State shall secure that the operation of the legal system
promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid,
by suitable legislation or schemes or in any other way, to ensure that opportunities for securing
justice are not denied to any citizen by reason of economic or other disabilities.
5.5.2. Description
Article 39A directs the State to ensure that the judicial system of the country is available to all.
The State should provide free legal aid for accomplishing the same. Notably, the union govt. has
passed National Legal Services Authority Act, 1987 to achieve the same. It was inserted by the
Constitution 42nd amendment act, 1976

5.6. Article 40
5.6.1. Text
Organisation of village panchayats: The State shall take steps to organise village panchayats and
endow them with such powers and authority as may be necessary to enable them to function
as units of self-government.
5.6.2. Description
It is a Gandhian Directive Principle that requires the State to set up local bodies as institutions
of self-govt. It also requires that such local bodies should be given adequate power for them to
be self-sufficient. Notably, the govt. has passed 73rd and 74th amendment acts, which provide
for local bodies as the third tier of government.

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5.7. Article 41 Student Notes:

5.7.1. Text
Right to work, to education and to public assistance in certain cases. —The State shall, within
the limits of its economic capacity and development, make effective provision for securing the
right to work, to education and to public assistance in cases of unemployment, old age, sickness
and disablement, and in other cases of undeserved want.
5.7.2. Description
Within the State’s resources, it is required to undertake welfare programs especially for those
who cannot fend for themselves such as the old and the disabled. The State is undertaking
National Social Assistance programs for such people, providing them monthly pensions. Right to
work has been made a legal right under MGNREGA and it partially fulfills this right.

5.8. Article 42
5.8.1. Text
Provision for just and humane conditions of work and maternity relief—The State shall make
provision for securing just and humane conditions of work and for maternity relief.

5.9. Article 43
5.9.1. Text
Living wage, etc., for workers.—The State shall endeavour to secure, by suitable legislation or
economic organisation or in any other way, to all workers, agricultural, industrial or otherwise,
work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of
leisure and social and cultural opportunities and, in particular, the State shall endeavour to
promote cottage industries on an individual or co-operative basis in rural areas.
5.9.2. Description
Article 43 says that the state will attempt to secure to all workers (agricultural, industrial or
otherwise) work, a living wage, conditions of work ensuring a decent standard of life and full
enjoyment of leisure & social cultural opportunities and in particular promote cottage
industries on an individual or cooperative basis in rural areas, through suitable legislations or
economic organizations or in other ways.
5.10. Article 43A
5.10.1. Text
Participation of workers in management of industries—The State shall take steps, by suitable
legislation or in any other way, to secure the participation of workers in the management of
undertakings, establishments or other organizations engaged in any industry.
5.10.2. Description
Article 43 A was inserted by 42nd amendment act 1976. This article says that the State shall
take steps, by suitable legislation or in any other way, to secure the participation of workers in
the management of industry.

5.11. Article 43B

5.11.1. Text
Promotion of co-operative societies—The state shall endeavour to promote voluntary
formation, autonomous functioning, democratic control and professional management of the
co-operative societies.

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5.11.2. Description Student Notes:

The article was inserted by the 97th Constitutional Amendment Act, 2011. It aims to encourage
economic activities of cooperatives which in turn contribute to the progress of rural India. It is
expected to not only ensure autonomous and democratic functioning of cooperatives, but also
the accountability of the management to the members and other stakeholders.

5.12. Article 44
5.12.1. Text
Uniform civil code for the citizens—The State shall endeavour to secure for the citizens a
uniform civil code throughout the territory of India.
5.12.2. Description
Personal laws relate to marriage, divorce, maintenance, succession, adoption. Different
religions in India have different personal laws. A uniform civil code would imply the same
personal law being followed by all the people of the country.
SC has repeatedly rejected petitions seeking direction to the center to apply uniform civil code
stating that it is a matter of policy that the court is not competent to venture in.
5.12.3. Constitutional Provisions in support of Uniform Civil Code
Article 44 under Directive Principles of State Policy: The State shall endeavor to secure for the
citizens a uniform civil code throughout the territory of India.
Clause (2) of Article 25 under Fundamental Rights: It empowers the State to frame any law to
regulate or restrict “secular activity which may be associated with religious practice”
Article 14 under Fundamental Rights: The inconsistency in personal laws has been challenged
on the touchstone of Article 14, which ensures the right to equality. Litigants have contended
that their right to equality is endangered by personal laws that put them at a disadvantage.
5.12.4. Debate Around Uniform Civil Code
A Uniform civil code seeks to replace personal laws based on the scriptures and customs of a
religious community with a common set of laws governing every citizen. At its core, Uniform
Civil Code (UCC) deals with issues of secularism, equality and women’s rights. The secular
argument is that the laws of the state should not be religion, caste or community specific.
Further, a modern state should treat all citizens equally and should not discriminate against
women.
In the Constituent Assembly, a UCC was supported by leaders such as Nehru, Ambedkar and
women members but due to stringent opposition from other members, it was included only in
the form of Directive Principles as a compromise.
The demand for UCC , however, reached its peak in the mid -80s after the Supreme Court
verdict in the famous Shah Bano case in which SC granted her maintenance for life under
Section 125 of the Cr.P.C.
In October 2015, A Supreme Court bench questioned the government about its mandate on
framing the Uniform Civil Code so that unvarying standards are ushered in and all religions are
regulated by the same yardsticks in matters of law.
5.12.5. Recent Supreme Court judgments
1. SC held that fatwas issued by Muslim shariat courts (Dar-ul-Qazas) do not have legal
sanctity and cannot be enforced if they infringed on the fundamental rights of an individual.
The Bench said fatwas on rights, status and obligation of individual Muslims, in its opinion,
would not be permissible unless asked for by the person concerned or, in cases where the
person is unable to do it, by the person interested.

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Personal laws ought to be administered by the regular law courts and cannot be enforced in Student Notes:
derogation of fundamental rights by religious courts that lack legal sanctity.

The judgment is a welcome step towards gradual rationalization and acclimatization of our
custom- driven and extra-legal judicial system (which often works in contradiction to our
established and widely regarded constitutional values) to the contemporary realities of a
modern democratic society — in which there is no place for any kind of gender-based
discrimination and dehumanising arbitrariness. The state can come to the rescue of an
individual if he or she is being victimised in terms of a violation of fundamental rights in the
name of Personal laws.
The Supreme Court has preserved the religious character of these Sharia courts, noting that
they do not constitute a parallel judiciary, but an “informal justice delivery system with the
objective of bringing about amicable settlement between parties.” It is important that the
Supreme Court’s intervention, at the instance of a petitioner who wanted Sharia courts to
be banned, is understood in the correct perspective.
2. In August 2017, the Supreme Court of India declared the practice of Triple Talaq or ‘talaq-e-
biddat’ as unconstitutional. Its judgment said, “We direct, the Union of India to consider
appropriate legislation, particularly with reference to ‘talaq-e-biddat’. We hope and expect,
that the contemplated legislation will also take into consideration advances in Muslim
‘personal law’ – ‘Shariat’, as have been corrected by legislation the world over, even by
theocratic Islamic States. When the British rulers in India provided succor to Muslims by
legislation, and when remedial measures have been adopted by the Muslim world, we find
no reason for an independent India, to lag behind. Measures have been adopted for other
religious denominations even in India, but not for the Muslims.”
The judgment outlines true meaning and spirit of the Quran on the anvil of individualism,
the rule of law and human rights enunciated in the constitution. This judgment is not
against any institution, organisation nor it is against the religion of Islam. It is a judgment in
favour of justice based on women’s rights as human rights.
5.12.6. Benefits of Uniform Civil Code
• All the laws related to marriage, inheritance, family, land etc. would be equal for all Indians.
• It will help in improving the condition of women in India. Indian society is patriarchal and by
allowing old religious rules to continue to govern the family life, condemns all Indian
women to subjugation and mistreatment.
• It will help the society move forward and take India towards its goal of becoming a
developed nation where women are treated fairly and given equal rights.
• The various personal laws have loop holes exploited by those who have the power. Informal
bodies like Khap Panchayats continue to give judgments that are against our constitution.
Human rights are violated through honor killings and female feticide throughout our
country.
• It will also help in reducing vote bank politics. If all religions are covered under the same
laws, the politicians will have less to offer to communities in exchange of their vote.
• It will help in integration of India - A lot of the animosity is caused by preferential treatment
by the law of certain religious communities.
• This could in time induce custodians of faith to look inwards and seek to codify and reform
age-old personal laws in conformity with current modernizing and integrative tendencies or
risk losing their flock.
5.12.7. Challenges in implementing Uniform Civil Code
• India has a strong and long history of personal laws and it cannot be given up easily.
• A broad consensus must be drawn among different communities to facilitate such a

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landmark step in India’s religious, social, political and most importantly judicial history. Student Notes:
• The biggest obstacle in implementing the UCC, apart from obtaining a consensus, is the
drafting. Should UCC be a blend of all the personal laws or should it be a new law adhering
to the constitutional mandate? There is a lot of literature churned out on UCC but there is
no model law drafted.
Going forward, an evaluation survey of all communities must be conducted to suggest reforms
within personal laws on modern and liberal lines. Communities should be convinced that UCC is
to bring reforms not suppress them. There is a need of piecemeal reform rather than a holistic
reform starting with what minorities are most comfortable of doing away with.

5.13. Article 45
5.13.1. Text
Provision for early childhood care and education to children below the age of six years—The
State shall endeavour to provide early childhood care and education for all children until they
complete the age of six years.
5.13.2. Description
It was inserted by the 86th amendment, 2002 when the earlier DPSP under article
45(elementary education) was guaranteed by Article 21A.

5.14. Article 46
5.14.1. Text
Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and
other weaker sections—The State shall promote with special care the educational and
economic interests of the weaker sections of the people, and, in particular, of the Scheduled
Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of
exploitation.
5.14.2. Description
The government has tried to implement this directive principle by providing reservation to
socially and educationally backward sections of our society, particularly the SC/STs.

5.15. Article 47
5.15.1. Text
Duty of the State to raise the level of nutrition and the standard of living and to improve public
health—The State shall regard the raising of the level of nutrition and the standard of living of
its people and the improvement of public health as among its primary duties and, in particular,
the State shall endeavour to bring about prohibition of the consumption except for medicinal
purposes of intoxicating drinks and of drugs which are injurious to health.
5.15.2. Description
It is a Gandhian principle. Mid-day meal scheme can be said to be fulfilling this directive
principle. The Food Security Act passed in 2013 can be a step towards fulfilling this directive
principle.

5.16. Article 48
5.16.1. Text
Organisation of agriculture and animal husbandry.—The State shall endeavour to organize
agriculture and animal husbandry on modern and scientific lines and shall, in particular, take

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steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves Student Notes:
and other milch and draught cattle.

5.17. Article 48A

5.17.1. Text
Protection and improvement of environment and safeguarding of forests and wild life—The
State shall endeavor to protect and improve the environment and to safeguard the forests and
wild life of the country.
5.17.2. Description
Article 48A was added by the constitution by 42nd amendment act 1976. The State shall
endeavor to protect and improve the environment and to safeguard the forests and wild life of
the country.

5.18. Article 49
5.18.1. Text
Protection of monuments and places and objects of national importance—It shall be the
obligation of the State to protect every monument or place or object of artistic or historic
interest, declared by or under law made by Parliament to be of national importance, from
spoiling, disfigurement, destruction, removal, disposal or export, as the case may be.
5.18.2. Description
It is a liberal-intellectual principle requiring the State to protect monuments of national
importance. The Archaeological Survey of India is charged with this exercise.

5.19. Article 50
5.19.1. Text
Separation of judiciary from executive—The State shall take steps to separate the judiciary from
the executive in the public services of the State.
5.19.2. Description
Separation of powers is necessary for the system of checks and balances. It also ensures the
independence of the judiciary.
It is also a liberal-intellectual principle. It has been fulfilled by amending the CrPC in 1973. This
amendment repealed CrPC, 1898 and gave effect to the separation of the executive from the
judiciary in administration of criminal justice, provided for the distinction between executive
and judicial magistrates and their respective functions.

5.20. Article 51
5.20.1. Text
Promotion of international peace and security—The State shall endeavour to—
(a) promote international peace and security;
(b) maintain just and honourable relations between nations;
(c) foster respect for international law and treaty obligations in the dealings of organised
peoples with one another; and
(d) encourage settlement of international disputes by arbitration.

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5.20.2. Description Student Notes:

Article 51 of the Constitution is based on the principle of internationalism. It seeks the
promotion of global harmony and security through just and honorable relations between
nations. Besides, it calls for respecting international law and treaty obligations and settlement
of international disputes through instruments like arbitration.

6. Relation with Fundamental Rights

The Fundamental Rights and DPSP’s constitute the conscience of the Constitution. The purpose
of FR’s is to confer on individuals the rights necessary for their development, free from coercion.
DPSP’s are essential for a welfare society. According to Justice Chandrachud, the Constitution
aims to bring about a synthesis between the two and together they constitute, not individually,
the conscience of the Constitution. The Supreme Court has hence pronounced the ‘doctrine of
harmonious construction’ to establish the relation between FR’s and DPSP’s.
The tension between FR and DPSP has been evident ever since the commencement of the
Constitution. Initially, the comparative status of FR’s and DPSP’s was not clear. It was believed
that they were contradictory in nature. It was in the Champakam Dorairajan case, in 1952 that
the debate first came to the fore. A series of judicial pronouncements and constitutional
amendments have altered the balance between the two since the commencement of the
constitution.
Champakam Dorairajan case (1951) The Supreme Court held that Article 37 expressly says that
the directive principles are not enforceable by court. The Supreme Court mandated that the
chapter on Fundamental Rights in the constitution is sacrosanct and the directive principles
have to conform to and run subsidiary to the chapter on Fundamental Rights. This means that
Fundamental Rights were given superiority over the Directive principles. It also held that the
Fundamental Rights could be amended by the Parliament by enacting constitutional
amendment acts.
• In Golaknath case (1967) however, the SC reversed its decision stating that FR’s have been
given a transcendental position and cannot be abridged. The doctrine of Prospective
Overruling was applied in the Golaknath case, whereby the SC could overrule its own
decision.
• 24th Amendment Act, 1971 was enacted to overcome the Golaknath case. It added Article
13(4) to the Constitution, whereby Constitutional amendment could modify a FR.
• In the Kesavananda Bharati case (1973), the SC gave the Doctrine of basic structure,
whereby FR’s could be abridged only to the extent that they did not form part of the basic
structure.
• 42nd Amendment Act, 1976 passed by Parliament gave precedence to DPSP’s over FR’s and
extended the scope of Article 31C, which provided for protection of laws implementing
DPSP’s 39(b), 39(c) from illegality on ground of being violative of the constitution. This
amendment included within the protection provided by Article 31C, any law to implement
any of the Directive Principles and not merely those specified in Article 39 (b) and (c).
• In the Minerva Mills case (1980), the SC held that powers of the Parliament to amend the
Constitution are limited by the basic structure doctrine. The Supreme Court held that the
Constitution exists on the balance of Part III and Part IV. Giving absolute primacy to one
over the other will disturb the harmony of the Constitution. This took the Article 31(C) to its
prior condition that “a law would be protected by article 31C only if it has been made to
implement the directive in article 39(b) and (c) and not any of the articles included in Part
IV”.
• Thus, the final status of FR’s and DPSP’s with respect to each other is following:
o They form an integrated scheme
o They are not supplementary but complementary in nature

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o Together they provide the basis for inclusive democracy in India Student Notes:
o Supreme Court has pronounced the doctrine of Harmonious Construction
o FR’s have a superior legal status but it doesn’t undermine the importance of DPSP’s
o Over a period of time by using the doctrine of “liberal interpretation” Supreme Court
has included number of directive principles under Article 21.
o To examine the validity of a particular law giving effect to directive principles which
abridge FR’s, SC applies the doctrine of –
▪ Basic Structure and
▪ The Golden Triangle of rights – Article 14, 19, and 21.
Doctrine of Harmonious Construction
This doctrine is used to avoid any inconsistency and repugnancy within a section or between a
section and other parts of a statute. The rule follows a very simple premise that every statute
has a purpose and intent as per law, and should be read as a whole. The interpretation which is
consistent with all the provisions and makes the enactment consistent shall prevail. The
doctrine follows a settled rule that an interpretation that results in injustice, hardship,
inconvenience, and anomaly should be avoided. The interpretation with the closest conformity
to justice must be picked.
The Supreme Court laid down 5 main principles of the ‘Doctrine of Harmonious Construction’-
1. The courts must avoid a ‘head of clash’ of contradictory provisions and they must construe
the contradictory provisions so as to harmonize them.
2. When it is not possible to completely reconcile the differences in contradictory provisions,
the court must interpret them in such a way so as to give effect to both provisions as much
as possible.
3. Courts must keep in mind that the interpretation which reduces one provision to a useless
standing is against the essence of ‘Harmonious Construction’.
4. To harmonize the provisions is not to render them fruitless or destroy any statutory
provision.
5. The provision of one section cannot be used to render useless the other provision, unless
the court, despite all its efforts, finds a way to reconcile the differences.

7. Difference between Directive Principles of State Policy

and Fundamental Rights
According to B.N. Rau, legal advisors to the constituent assembly, FR’s and DPSP’s are integrated
in scheme. They were presented as a single scheme in constituent assembly. Even in Motilal
Nehru report they formed one unit. It is for avoiding constitutional crisis – inability to enforce
DPSP’s because of lack of resources, that they have been separated. The following table
highlights the important differences between the two:
Basis Fundamental Rights Directive Principles
Different DPSP’s reflect
different ideologies for
FR’s are based on philosophy of example – that of welfare
Philosophy liberalism granting protection to state, Fabian Socialism,
individual and his rights Gandhism, Environmentalism,
Internationalism etc.

DPSP’s are positive

FR’s are prohibitions on the state in obligations on the state.
Nature general and in certain cases on private Union, state governments as
individuals also. well as other authorities are
expected to consider the

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DPSP’s as fundamental Student Notes:

guidelines to be observed in
policy making.
FR’s are enforceable in court of law.
Right to constitutional remedies itself is As per Article 37, DPSP’s are
a fundamental right. Judiciary is not enforceable in a court of
Enforceability
empowered to declare any law null and law. Constitutional remedies,
void if it abridges any of the thereby are not available.
fundamental rights.
DPSP’s seek to establish socio-
FR’s establish political democracy and
Outcome economic democracy in the
gives civil rights.
country
Focus FR’s are individual centric DPSP’s are group centric

8. Implementation of Directive Principles of State Policy

Since the commencement of the constitution, there have been substantial legislations to
implement the DPSP’s. Some of those are listed below –
• First constitutional amendment was for implementing land reforms. It was followed by 4th,
17th, 25th, 42nd, and 44th amendment acts (Article 39).
• The 73rd amendment to the constitution was done in pursuit of implementing the article 40.
• Right to work has been made a legal right under MGNREGA. National Social Assistance
Program of government of India is another step in implementing the directives under
Article 41.
• The Minimum Wages Act (1948), Child Labour Prohibition and Regulation Act (1986) etc.
seeks to protect the interests of the workers. Similarly the Maternity Benefit Act (1961) and
Equal Remuneration Act (1976) have been implemented to protect the interests of women
workers. Handloom Board, Handicrafts Board, Coir Board, Silk Board have been set up for
the development of cottage industries. These are some steps towards implementation of
Article 42 and 43.
• 86th amendment act 2002 makes provisions for early childhood care and education (Article
45).
• The policy of preferential treatment to weaker sections including women, SCs, STs, OBCs,
has been a consistent plank of the government welfare policies. One important step in this
regard has been implementation of Mandal Commission’s recommendation in pursuit of
Article 46. The 93rd Amendment Act 2006 is another step in the same direction.
• Integrated Rural Development Programme (1978), Jawahar Rozgar Yojana (1989),
Swarnajayanti Gram Swarozgar Yojana (1999), Sampoorna Gram Rozgar Yojana (2001),
Mahatma Gandhi National Rural Employment Guarantee Programmes (2006) etc have been
implemented to improve the living standard of the people.
• Regarding Article 48, the green revolution and the research in biotechnology are aimed at
modernizing agriculture and animal husbandry, among other things.
• The National Forest Policy (1988) aims at the protection, conservation and development of
forests. The Environment Protection Act, 1986; The Wildlife (Protection) Act, 1972; are also
some important steps towards fulfilling directives under Article 48A.
• The Archaeological Survey of India is charged with the work of protection of the
monuments like Taj Mahal.
• Separation of judiciary from executive has been completed by amending the CrPC, in 1973.
• The efforts of India to secure international peace are many like participating in the
peacekeeping missions through the UN. India also pioneered the Non-Aligned movement to
defuse cold war after the Second World War.

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• A number of programmes like Save the Tiger, project Rhino, elephant, etc. are being Student Notes:
implemented in pursuance of the directive principle which relates to protection and
improvement of environment and safeguarding of forests and wildlife.

9. Directives and Constitutional Amendments

Since the Indian constitution came into force, there have been number of amendments –
addition, and modification from the part IV of the constitution.
Affected Article Change Through
38 (2) Added 44th Amendment Act, 1978
39 (f) Added 42th Amendment Act, 1976
39A Added 42th Amendment Act, 1976
43A Added 42th Amendment Act, 1976
43B Added 97th Amendment Act, 2011
45 Modified Text* 86th Amendment Act, 2002
48A Added 42nd Amendment Act, 1976
*Article 45 which originally stated:
“The State shall endeavour to provide, within a period of ten years from the commencement of
this Constitution, for free and compulsory education for all children until they complete the age
of fourteen years”
was substituted by
“The State shall endeavor to provide early childhood care and education for all children until
they complete the age of six years.”

10. Reasons behind Directive Principles being made non-

justiciable and legally non-enforceable
The framers of the Constitution made the Directive Principles non-justiciable and legally non-
enforceable because of the following reasons:
a) The country did not possess sufficient financial resources to implement them.
b) The presence of vast diversity and backwardness in the country would stand in the way of
their implementation.
c) The newly born independent Indian State with its many preoccupations might be crushed
under the burden unless it was free to decide the order, the time, the place and the mode
of fulfilling them.
The Constitution makers, therefore, taking a pragmatic view, refrained from giving teeth to
these principles. They believed more in an awakened public opinion rather than in court
procedures as the ultimate sanction for the fulfillment of these principles.

11. Criticism of DPSP’s

a) Critics point out the lack of consistency in the DPSP’s. Apparently greatly important
directives have been mixed with seemingly less important ones. Further, they have not
been arranged in a logical manner based on a consistent philosophy. According to N.
Srinivasan, ‘the Directives are neither properly classified nor logically arranged. The
declaration mixes up relatively unimportant issues with the most vital economic and social
questions. It combines rather incongruously the modern with the old and provisions
suggested by the reason and science with provisions based purely on sentiment and
prejudice’.
b) Also, their non-enforceable nature leaves their implementation on the discretion of the
government of the day.

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c) They have been criticized as a dustbin of sentiments – as they contain merely the vision of Student Notes:
constitution makers without any instrumentalities to achieve it
d) It has been argued that since the Constitution is the basic law of the land, it should not
contain anything, which is non-justiciable.
e) Also, they have been criticized on the ground that they disturb the federal structure –
directives are instructions to both union and state governments. Much of the directives
deal with those subjects, which come under state list. K. Santhanam has pointed out that
the Directives lead to a constitutional conflict:
• Between the Centre and the States
• Between the President and the Prime Minister, and
• Between the Governor and the Chief Minister
According to him, the Centre can give directions to the states with regard to the
implementation of these principles, and in case of non-compliance, can dismiss the state
government. Similarly, when the Prime Minister gets a bill (which violates the Directive
Principles) passed by the Parliament, the President may reject the bill on the ground that these
principles are fundamental to the governance of the country and hence, the ministry has no
right to ignore them. The same constitutional conflict may occur between the governor and the
chief minister at the state level.

12. Significance of DPSP’s

The DPSP’s aim to establish an India where the ideals of not only political democracy, but also
social and economic democracy have been realized. They provide a broad direction to the ruling
regime regardless of its political complexion and hence help in maintaining some consistency in
policy direction despite change in governments. DPSP’s have also functioned as beacons to the
judiciary. Above all, they have an educative value.
According to M C Setalvad, the former Attorney General of India, the Directive Principles,
although confer no legal rights and creates no legal remedies, are significant and useful in the
following ways:
a) They are like an ‘Instrument of Instructions’ or general recommendations addressed to all
authorities in the Indian Union. They remind them of the basic principles of the new social
and economic order, which the Constitution aims at building.
b) They have served as useful beacon-lights to the courts. They have helped the courts in
exercising their power of judicial review, that is, the power to determine the constitutional
validity of a law.
c) They form the dominating background to all State action, legislative or executive and also a
guide to the courts in some respects.
d) They amplify the Preamble, which solemnly resolves to secure to all citizens of India justice,
liberty, equality and fraternity.
e) They facilitate stability and continuity in domestic and foreign policies in political, economic
and social spheres in spite of the changes of the party in power.
f) They are supplementary to the fundamental rights of the citizens. They are intended to fill
in the vacuum in Part III by providing for social and economic rights.
g) Their implementation creates a favourable atmosphere for the full and proper enjoyment of
the fundamental rights by the citizens. Political democracy, without economic democracy,
has no meaning.
h) They enable the opposition to exercise influence and control over the operations of the
government. The Opposition can blame the ruling party on the ground that its activities are
opposed to the Directives.
i) They serve as a crucial test for the performance of the government. The people can
examine the policies and programmes of the government in the light of these constitutional
declarations.

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 FUNDAMENTAL DUTIES Student Notes:

Contents
1. Genesis of Fundamental Duties in India .................................................................................... 1

2. List of Fundamental Duties ........................................................................................................ 2

3. Nature of Fundamental Duties................................................................................................... 3

4. Enforcement of Fundamental Duties ......................................................................................... 3

4.1. Available Legal Provisions for Enforcement of Fundamental Duties .................................. 4

5. Committees and Judicial Pronouncements ................................................................................ 4

5.1. Justice Verma Committee Report ....................................................................................... 4

5.2. Important Judicial Pronouncements ................................................................................... 6

5.3. Recent Developments ......................................................................................................... 7

6. Criticism of Fundamental Duties ................................................................................................ 7

7. Significance of Fundamental Duties ........................................................................................... 8

8. UPSC Prelims Questions ............................................................................................................. 8

9. UPSC Previous Years’ Questions ............................................................................................... 10

10. Vision IAS GS Mains Test Series Questions............................................................................. 10

Copyright © by Vision IAS

All rights are reserved. No part of this document may be reproduced, stored in a retrieval
system or transmitted in any form or by any means, electronic, mechanical, photocopying,
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1. Genesis of Fundamental Duties in India Student Notes:

For any polity, its people are the ultimate

custodians of its Constitution. It is in these Recommendations of Swaran Singh
Committee that were not accepted
citizens that sovereignty vests and specifically for
(a) The Parliament may provide for the
India, it is in their name that the Constitution was
imposition of such penalty or
adopted. Therefore, the Constitution seeks to punishment as may be considered
empower the citizen. However, it is a reciprocal appropriate for any non-compliance
relationship, in the sense, that the citizen also with or refusal to observe any of the
empowers the Constitution. They do it by duties;
following it in letter and spirit, by adhering to it, (b) No law imposing such penalty or
by protecting it, and by persevering to make it punishment shall be called in question
more meaningful with words and deeds. in any court on the ground of
infringement of any of Fundamental
The Constitution of India envisaged a holistic Rights or on the ground of repugnancy
approach towards civic life in a democratic polity. to any other provision of the
It guaranteed certain rights to the citizen as Constitution;
Fundamental Rights. Since human conduct cannot (c) Duty to pay taxes should also be a
be confined to the realm of Fundamental Rights, Fundamental Duty of the citizens.
the Constitution also envisaged certain duties,
which are correlated to the rights, and those duties have been described as Fundamental
Duties.
It is to be borne in mind that the framers of the Constitution did not deem it appropriate to
incorporate those duties in the text of the Constitution when it was originally promulgated.
There may be myriad reasons for such omission:
• Firstly, the concept of Dharma is deeply rooted in the Indian society. Citizens practice
certain duties as basic values irrespective of a threat of penalty.
• Secondly, the preamble to the Constitution itself encapsulates the duties of citizensby
including not only the aspirations of the people i.e. the goals of the nation, but also the
assurances of the Constitution. Hence, it is implied that whatever is required for the
fulfillment of these goals be undertaken by every citizen as his duty.
• Additionally, the Fundamental Rights enlisted in the Constitution logically bring in an
inference of a set of duties which are essential for their realization. If these rights are to be
available to people, they are obligated to perform their corresponding duties.
However, after around a quarter century in the history of independent India, it was thought fit
to have a framework of duties in the Constitution itself. Sardar Swaran Singh committee was
constituted by Indira Gandhi soon after emergency was imposed in the country. The objective
of this committee was to study the question of amending the constitution in the light of past
experiences and recommend amendments.
Consequently, the 42nd Amendment Act, also called the "Mini Constitution", added added a
new part in the Constitution, Part IVA. It incorporated ten (now eleven) Fundamental Duties by
inserting a new article 51A below article 51. The objective of incorporating the fundamental
duties is to place before the country a code of conduct, which the citizens are expected to
follow.

2. List of Fundamental Duties

The eleven Fundamental Duties incorporated in Article 51A, by the 42nd and 86th Amendment of
the Indian Constitution are as under:
a) to abide by the Constitution and respect its ideals and institutions, the National Flag and
the National Anthem;
b) to cherish and follow the noble ideals which inspired our national struggle for freedom;

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c) to uphold and protect the sovereignty, unity and integrity of India; Student Notes:
d) to defend the country and render national service when called upon to do so;
e) to promote harmony and the spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional diversities; to renounce practices
derogatory to the dignity of women;
f) to value and preserve the rich heritage of our composite culture;
g) to protect and improve the natural environment including forests, lakes, rivers and wild life,
and to have compassion for living creatures;
h) to develop the scientific temper, humanism and the spirit of inquiry and reform;
i) to safeguard public property and to abjure violence;
j) to strive towards excellence in all spheres of individual and collective activity so that the
nation constantly rises to higher levels of endeavour and achievement;
k) who is a parent or guardian, to provide opportunities for education to his child or, as the
case may be, ward between the age of six and fourteen years.
The NCRWC recommended that following new fundamental duties should be included in Article 51-A:
• Duty to vote at elections, actively participate in the democratic process of governance and to pay
taxes;
• To foster a spirit of family values and responsible parenthood in the matter of education, physical and
moral well-being of children;
• Duty of industrial organizations to provide education to children of their employees.

3. Nature of Fundamental Duties

A. As the Directive Principles are addressed to the state, the fundamental duties are addressed
to the citizens. The citizens enjoying the fundamental rights must respect the ideals of the
constitution, to promote harmony and spirit of the brotherhood.
B. Fundamental Duties are non-justiciable. It means the citizens cannot be forced to observe
them. Some of them, are however part of the enforceable law. For example, Prevention of
Insults to National Honor Act, 1971, and so on. However, if a citizen violates Fundamental
Duties, his Fundamental Rights may not be restored when he approaches courts.
C. While some of the fundamental duties are moral duties e.g. to promote a spirit of patriotism
and to uphold the unity of India; cherishing the noble ideals of freedom struggle etc, there
are others that are civic duties, for instance, respecting the National Flag and National
Anthem.
D. Fundamental Duties consist of tasks essential to the Indian way of life by incorporating
precepts reflecting the values of the Indian tradition.
E. Fundamental duties are extended only to Indian citizens and not foreigners, in a stark
contrast with certain Fundamental Rights.

4. Enforcement of Fundamental Duties

There is no provision in the Indian Constitution for the direct enforcement of Fundamental
Duties and also, no sanction to prevent their violation. However, for the purpose of ascertaining
the constitutionality of any law, if a Court finds that the law seeks to give effect to any of these
Fundamental Duties, it may consider the law ‘reasonable’ in relation to Article 14 or 19.
Fundamental Duties also serve as a warning to erring citizens as a guard against preventing anti-
social activities like burning of the Constitution, destroying public property etc.
The Supreme Court of India may issue suitable guidelines along these matters in appropriate
cases. For instance, the Supreme Court adopted the principle of “sustainable development” to
give effect to fundamental duties enshrined under Article 51-A(g) read with Article 21, 47 and
48 A. It also held that “precautionary principle” and “polluter pays principle” are acceptable as
part of the law of the country.
In effect, one must understand that Parts III, IV and IV-A have a common thread flowing through
them. While one enumerates the Fundamental Rights and another declares principles

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fundamental to governance, the part IV-A lays down Fundamental Duties of the citizen. Hence, Student Notes:
while interpreting any of these provisions; it is advisable to examine the scope and impact of
such interpretation on all the three Constitutional aspects emerging from these parts.
Hence, even as Fundamental duties have not been made enforceable by a writ issued by the
Court, one must not lose sight of the fact that the duty of every citizen is the collective duty of
the State.

4.1. Available Legal Provisions for Enforcement of Fundamental

Duties
Any non-operationalization of Fundamental Duties is not necessarily because of the lack of
concern or non-availability of legal and other enforceable provisions; but it is more a case of
lacuna in the strategy of implementation. Some of the legal provisions available in regard to
enforcement of Fundamental Duties are as under:
• In order to ensure that no disrespect is shown to the National Flag, Constitution of India
and the National anthem, the Prevention of Insults to National Honour Act, 1971 was
enacted.
• The Emblems and Names (Prevention of Improper Use) Act 1950 was enacted soon after
independence, inter alia, to prevent improper use of the National Flag and the National
Anthem.
• In order to ensure that the correct usage regarding the display of the National Flag is well
understood, the instructions issued from time to time on the subject have been embodied
in Flag Code of India, which has been made available to all the State Governments, and
Union territory Administration (UTs).
• There are a number of provisions in the existing criminal laws to ensure that the activities
which encourage enmity between different groups of people on grounds of religion, race,
place of birth, residence, language, etc. are adequately punished. Writings, speeches,
gestures, activities, exercise, drills, etc. aimed at creating a feeling of insecurity or ill-will
among the members of other communities, etc. have been prohibited under Section 153A
of the Indian Penal Code (IPC).
• Imputations and assertions prejudicial to the national integration constitute a punishable
offence under Section 153 B of the IPC.
• A Communal organization can be declared unlawful association under the provisions of
Unlawful Activities (Prevention) Act 1967.
• Offences related to religion are covered in Sections 295-298 of the IPC (Chapter XV).
• Provisions of the Protection of Civil Rights Act, 1955 (earlier the Untouchability (Offences)
Act 1955) “provide for punishments for offences related to caste and religion.”
• Sections 123(3) and 123(3A) of the Representation of People Act, 1951 declares that
soliciting of vote on the ground of religion and the promotion or attempt to promote
feelings of enmity or hatred between different classes of citizens of India on the grounds of
religion, race, caste, community or language is a corrupt practice. A person indulging in a
corrupt practice can be disqualified for being a Member of Parliament or a State Legislature
under Section 8A of the Representation of People Act, 1951.

5. Committees and Judicial Pronouncements

5.1. Justice Verma Committee Report
In 1998, the Government of India set up a Committee under the Chairpersonship of Justice J.S
Verma to work out a strategy as well as methodology of operationalizing a countrywide
programme for teaching fundamental Duties in every educational institution as a measure of
inservice training. The Committee made the following recommendations:

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A. It sought to optimize benefits from the existing schemes/programmes on national Student Notes:
integration and communal harmony, culture and values, and environment, by further
activating and monitoring the work of the institutions and NGOs who are sanctioned these
schemes by the concerned ministries of Home, Human Resource Development and
Environment and Forests.
B. Towards protection and improvement of environment, it recommended coordination
between all the law enforcement agencies, enforcing strict compliance of the various legal
provisions and filling legislative vacuum, if any.
C. Towards reorienting approaches to school curriculum, the Committee reiterated the need
for a fundamental transformation in the direction and approach to curricula for teaching
Fundamental Duties in school and teacher education institutions.
D. In order to ensure dignity of women, it recommended that gender biases and sex-
stereotyping must be eliminated from all school and colleges textbooks and this should be
given as a mandate to all curriculum development agencies, both at national and state
levels.
E. Towards reorienting teacher education, it recommended a sensitization module based on
Fundamental Duties to be made an integral part of all teacher education programmes,
organised by National, State and District level institutions and planning large scale teacher
orientation programmes on this theme.
F. Towards incorporating Fundamental Duties in the courses and programmes of higher and
professional education, it suggested that the Human Rights Education Initiative of the UGC
should be referred to as 'Human Rights and Fundamental Duties Education Initiative’ and
the UGC may advise on incorporating Fundamental Duties as an essential component of
their respective proposals while giving grants to Universities.
G. Towards the responsibilities of people's representative, the Committee recommended
that special efforts should be made to ensure that our legislators are aware of the
Fundamental Duties as the same are also their duties as citizens by organizing special
programmes at the parliamentary and state assembly levels and involving the Corporation,
Town Area Committees and the Panchayati Raj institutions in this effort.
H. Towards the obligation of public administration and civil servants, the Committee
recommended that a module on Fundamental Duties should be adopted for inclusion in the
Courses of different Training Institutions connected with the training of civil servants. It also
recommended fixing responsibility of the senior public servants to project the image of
administration as people-friendly and responsive to the problems and sufferings of the
citizens and giving greater access to information and promoting transparency on part of the
Government.
I. Towards the administration of justice, the Committee recommended that a Judicial
Academy should be set up to provide facilities for continuing education of Judges, to focus
their attention on Constitutional Values and Fundamental Duties, to foster constructive
interaction between the Bar and the Bench and to facilitate application of modern
techniques of management to the transaction of judicial business in the Court.
J. Towards the role of business and industry, the Committee recommended vigorous
formulation and pursuit of ethical conduct for business dealings.
K. Towards the role of Media, the Committee recommended that media should constantly
educate people about Constitution and the symbols of sovereignty; harness its potential for
rural development, empowerment of women, distance education, environmental
protection, civic consciousness and human rights awareness; formulating a comprehensive
media policy.
In 2003, the Supreme Court has directed the center to enact a law for the enforcement of
fundamental duties by citizens as suggested by the Justice Verma Committee (2000).
The former Chief Justice of India, Ranganath Mishra, in a letter to the Chief Justice of India,
requested the apex court to issue necessary directions to the State to educate its citizens in the

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matter of fundamental duties so that a right balance emerged between rights and duties. The Student Notes:
letter was treated as a writ petition.
National Commission to Review the Working of the Constitution (NCRWC) Report in 2002
recommended the implementation of the Justice Verma Committee recommendations. It
recommended that the first and foremost step that was required to be taken by the Union and
State governments was to sensitize the people and create a general awareness of the provisions
of fundamental duties amongst citizens.

5.2. Important Judicial Pronouncements

• Mohan Kumar Singhania & Ors. Vs. Union of India & Ors., (1992): The officers in All-India
Services (Administrative, Forest, Police, etc.) were not taking the training seriously resulting
in deterioration of the services. Service Rules were amended so as to give weightage to the
training and penalize failure. On a challenge being laid to the constitutionality of the
amendment in the Rules in Mohan Kumar Singhania & Ors. Vs. Union of India & Ors., (1992),
in order to uphold the validity of the amendment, Ratnavel Pandian, J. drew strength from
article 51A.
Referring to clause (j), which commands every citizen of India to strive towards excellence in
all spheres of individual and collective activity so that the nation constantly rises to higher
levels of endeavour and achievement, it was held that the effort taken by the Government in
giving utmost importance to the training programme of the selectees so that this higher civil
service being the topmost service of the country is not wasted and does not become
fruitless during the training period is in consonance with the provisions of article 51A (j). The
constitutionality of the amendment was, thus, upheld.
• Rural Litigation and Entitlement Kendra & Ors. Vs. A State of Uttar Pradesh & Ors., (1985):
In Rural Litigation and Entitlement Kendra, Dehradun & Ors. Vs. State of U.P. & AIR 1985 SC,
in order to prevent imbalance to ecology and hazard of healthy environment being created
due to working of lime-stone quarries, the Supreme Court directed the quarries lessees
being cancelled and lime-stone quarries being closed down permanently. The directions
were issued in face of fundamental right to trade and business and the right to earn
livelihood.
Assigning paramount significance to Fundamental Duties and rather placing the
Fundamental Duties owing to people at large above the fundamental right of a few
individuals the court held that such closure would undoubtedly cause hardship, “but it is a
price that has to be paid for protecting and safeguarding the right of the people to live in
healthy environment with minimum disturbance of ecological balance and without
avoidable hazard to them and to their cattle, homes and agricultural land and undue
affectation of air, water and environment”.
• M.C.Mehta (II) Vs. Union of India & Ors., (1998): In this case, article 51A containing
Fundamental Duties of citizens was read casting duties on the government and for issuing
certain directions consistently with article 51A. Directions were:
o the Central Government shall direct to the educational institutions throughout India to
teach at least for one hour in a week, lessons relating to protection and the improvement
of the natural environment including forests, lakes, rivers and wild life in the first ten
classes;
o the Central Government shall get text books written for the said purpose and distribute
them to the educational institutions free of cost;
o the children shall be taught about the need for maintaining cleanliness and with the
cleanliness of the house, both inside and outside and the street in which they live;
o the Central Government shall consider training of teachers who teach this subject by the
introduction of short-term courses for such training;

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o the Central Government, the Government of the States and all the Union Territories shall Student Notes:
consider desirability of organizing “Keep the city/town/village clean” week;
o to create a national awareness of the problems faced by the people by the appalling all
round deterioration of the environment.
• Vellore Citizens’ Welfare Forum Vs. Union of India, (1996): In Vellore Citizens’ Welfare
Forum Vs. Union of India, (1996) 5 SCC 647 and Bandkhal and Surajkund Lakes matter, the
Supreme Court recognized ‘The Precautionary Principle’ and the ‘The Polluter pays’ principle
as essential features of ‘Sustainable Development’ and part of the environment law of the
country. Article 21, Directive Principles and Fundamental Duty clause (g) of article 51A were
relied on by the Supreme Court for spelling out a clear mandate to the State to protect and
improve the environment and to safeguard the forests and wild life of the country. The court
held it mandatory for the State Government to anticipate, prevent and attack the causes of
environment degradation.
• Bijoe Emmanuel vs State of Kerala, AIR 1987: In this case, it has been held that there is no
provision of law which obliges anyone to sing the National Anthem nor is it disrespectful to
the National Anthem if a person who stands up respectfully when the National Anthem is
sung does not join the singing.
Proper respect is shown to the National Anthem by standing up when the National Anthem
is sung. It will not be right to say that disrespect is shown by not joining in the singing. It was
observed that there was no law enacted by Parliament making it obligatory to comply with
article 51A(a). The Supreme Court allowed the petition filed by the children and directed the
authorities to re-admit the children into the school.

5.3. Recent Developments

• A plea was filed before SC to direct the Central government to frame a national policy under
Article 51A to promote and propagate the National Anthem, the National Flag and a
‘national song’. However, the court did not accept the plea. It said that Article 51A only
mentions National Flag and National Anthem and does not refer to a national song.
Moreover, Prevention of Insults to National Honour Act, 1971 (amended in 2005)
prohibiting the desecration of or insult to the country's national symbols, including the
National Flag, The Constitution and the National Anthem is already in place.
• Recently, the State of Karnataka proposed a new flag of the State. Apart from the
contentions raised regarding unity and federalism, several quarters voiced their opposition
to the move on the premise that it is disrespectful to national flag and hence undermines
Fundamental Duty.
However, SC in S.R. Bommai v/s Union of India case had stated that federalism is a basic
feature of the Constitution and States are supreme in their sphere. So, State flag is not
unauthorized. However, the manner in which State flag is hoisted should not dishonor the
national flag. Thus, demands to withdraw the state flag do not hold merit on the ground of
fundamental duty.

6. Criticism of Fundamental Duties

The Fundamental Duties mentioned in Part IVA of the Constitution have been subjected to
criticism on the basis of the following:
a) The list of duties is not exhaustive since some key duties are found amiss like casting vote,
family planning etc.
b) Duties as enshrined in the Constitution represent no consistent underlying theme.
c) They have been criticized as being vague, ambiguous and mere moral percepts having little
practical value due to their non-enforceable character. For instance, following the noble
ideals of the freedom struggle, the phrase ‘composite culture’ etc.

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 UNION LEGISLATURE Student Notes:

Contents
1. Structure of Parliament .............................................................................................................. 3
1.1. President as a part of Parliament ........................................................................................ 3
1.2. Rajya Sabha: Composition................................................................................................... 3
1.3. Lok Sabha: Composition ...................................................................................................... 5
2. System of Elections .................................................................................................................... 5
2.1. Lok Sabha ............................................................................................................................ 5
2.2. Rajya Sabha ......................................................................................................................... 6
3. Conduct of Business ................................................................................................................... 7
3.1. Duration of the Houses ....................................................................................................... 7
3.2. Sessions of Parliament ........................................................................................................ 7
4. Membership of Parliament ........................................................................................................ 9
4.1. Qualifications ...................................................................................................................... 9
4.2. Disqualifications .................................................................................................................. 9
4.2.1. 91st Amendment Act ................................................................................................. 12
4.3 Vacation of Seats by Members ........................................................................................... 13
4.4. Salaries and Allowances .................................................................................................... 13
5. Presiding Officers of the Parliament ........................................................................................ 14
5.1. The Speaker of Lok Sabha ................................................................................................. 14
5.2. Speaker Pro Tem................................................................................................................ 15
5.3. Deputy Speaker ................................................................................................................. 15
5.4. Chairman & Deputy Chairman of Rajya Sabha.................................................................. 15
6. Leaders in Parliament............................................................................................................... 17
6.1. Leader of the House .......................................................................................................... 17
6.2. Leader of the Opposition .................................................................................................. 17
6.3. Whip .................................................................................................................................. 18
7. Devices of Parliamentary Proceedings ..................................................................................... 19
7.1. Question Hour ................................................................................................................... 19
7.2. Zero Hour .......................................................................................................................... 19
7.3. Motions ............................................................................................................................. 20
7.4. Resolutions ........................................................................................................................ 21
7.4.1. Differences between Motions and Resolutions ......................................................... 22
7.5. Point of Order.................................................................................................................... 22
8. Legislative Procedure in Parliament ......................................................................................... 22
8.1. Ordinary Bills ..................................................................................................................... 23
8.2. Money Bills ........................................................................................................................ 24
8.3. Financial Bills ..................................................................................................................... 26
8.4. Constitution (Amendment) Bills ........................................................................................ 26
9. Financial Legislation by the Parliament.................................................................................... 27
9.1. Annual Financial Statement/Budget ................................................................................. 27
9.1.1. Cut Motions................................................................................................................ 28
9.1.2. Appropriation Bill ....................................................................................................... 28
9.1.3. Finance Bill ................................................................................................................. 28
9.1.4. Vote on Account ......................................................................................................... 29
9.1.5. Interim Budget ........................................................................................................... 29
9.2. Accounts of Government of India ..................................................................................... 29
9.2.1. Consolidated Fund of India ........................................................................................ 29
9.2.2. Public Account............................................................................................................ 30
9.2.3. Contingency Fund of India ......................................................................................... 30
9.3. Charged Expenditure......................................................................................................... 30

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10. Procedure for removing deadlock between the two Houses ................................................ 30 Student Notes:
10.1. Joint Sitting ...................................................................................................................... 30
11. Rajya Sabha ............................................................................................................................ 33
11.1. Historical Evolution and rationale behind creation of the Second Chamber .................. 33
11.2. Role of Rajya Sabha ......................................................................................................... 34
11.3. Comparison of Lok Sabha with Rajya Sabha ................................................................... 35
11.3.1. Equal Powers in relation to Lok Sabha ..................................................................... 35
11.3.2. Unequal status with Lok Sabha ................................................................................ 35
11.3.3. Special Powers of Rajya Sabha ................................................................................. 36
12. Parliamentary Committees .................................................................................................... 37
12.1. Important Parliamentary Committees ............................................................................ 37
12.1.1. Public Accounts Committee ..................................................................................... 37
12.1.2. Estimates Committee ............................................................................................... 38
12.1.3. Committee on Public Undertakings ......................................................................... 38
12.1.4. Business Advisory Committee .................................................................................. 38
12.1.5. Departmentally Related Standing Committees ........................................................ 38
13. Parliamentary Privileges......................................................................................................... 41
13.1. Individual Privileges ........................................................................................................ 41
13.2. Collective Privileges......................................................................................................... 42
13.3. Breach of Privilege and Contempt of the House ............................................................. 42
13.4. Punishment in case of breach of privilege or contempt of the House ........................... 43
14. Sovereignty of Parliament ...................................................................................................... 43
15. Functions, Role and Issues concerning Parliament ................................................................ 43
15.1. Functions and Roles of the Parliament ........................................................................... 43
15.2. Issues concerning Indian Parliament .............................................................................. 45
15.3. Implications of poor functioning of Parliament .............................................................. 45
15.4. Suggested Parliamentary Reforms .................................................................................. 46
16. Performance of the 16th Lok Sabha ........................................................................................ 47
17. UPSC Previous Years’ Questions ............................................................................................. 49
18. Vision IAS Previous Years’ Questions ..................................................................................... 49

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1. Structure of Parliament Student Notes:

The Parliament of India consists of three parts:

i. The President of India
ii. Upper House or the Council of States or ‘Rajya Sabha’ (Second Chamber or House of
Elders)
iii. Lower House or the House of the People or ‘Lok Sabha’ (First Chamber or Popular
House)

1.1. President as a part of Parliament

The Indian Constitution has followed the British pattern, rather than the American one. The
British Parliament consists of House of Lords (Upper House), House of Commons (Lower House)
and the Crown (King or Queen). The President of India, like the English Crown, is not a member
of either House of Parliament. However, he is an integral part of the Parliament and performs
the following functions:
i. A bill passed by both Houses of Parliament cannot become a law without the
President’s assent
ii. He/she summons and prorogues both the House, dissolves the Lok Sabha, addresses
both the Houses, issues ordinances when they are not in session etc.
The Parliamentary system of government emphasizes the interdependence between the
Legislature and the Executive. Thus, India has a President-in-Parliament system. On the other
hand, America follows the Presidential system, wherein emphasis is more on separation of
powers and less on interdependence between the Executive and the Legislature.

1.2. Rajya Sabha: Composition

The Rajya Sabha shall be composed of not more than 250 members. Of these, 12 are
nominated by the President. The remainder 238 shall be the representatives of the states and
the union territories elected by the method of indirect election. The seats in the Rajya Sabha
are allocated to the various states and union territories, roughly in proportion to their
population; each state is, however, represented by at least one member. The total number of
seats in the Rajya Sabha at present is 245, including 12 members nominated by the President.
• Nomination
The 12 nominated members shall be chosen by the President from amongst persons having
‘special knowledge or practical experience in literature, science, art, and social service’. The
rationale behind this principle of nomination is to provide eminent persons a place in the
Rajya Sabha, without going through the process of election.
• Representation of States
238 seats in the Rajya Sabha are allocated to the various states and union territories,
roughly in proportion to their population. The representatives of each state shall be elected
by elected members of the legislative assembly of the state in accordance with the system
of proportional representation by means of single transferable vote.
• Representation of Union Territories (UTs)
The representatives of UTs shall be chosen in such manner as Parliament may prescribe.
Under this power, the Parliament has prescribed that the representatives of UTs to the
Council of States shall be indirectly elected by members of an electoral college for that
Territory, in accordance with the system of proportional representation by means of single
transferable vote. Before the reorganisation of J&K, only 2 UTs, namely, Delhi and
Pondicherry had representation in Council of States. The population of others was too small
to have any representation.

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NOTE – According to the Jammu and Kashmir Reorganisation Act, 2019 - On and from the Student Notes:
appointed day, four sitting members of the Council of States representing the existing State of
Jammu and Kashmir shall be deemed to have been elected to fill the seats allotted to the Union
territory of Jammu and Kashmir.
The Rajya Sabha thus reflects a federal character by representing the Units of the federation.
The distribution of seats in the Rajya Sabha to the states is provided in the IVth Schedule.
However, it does not follow the American principle of equality of state representation in the
Second Chamber. In India, the number of representatives of States to the Rajya Sabha varies
from 1 (Nagaland) to 31 (Uttar Pradesh). In USA, each state has a representation of 2 in the
Senate. Various committees/commissions, including “Punchhi Commission on center-state
relations”, have recommended for providing equal representation to all the states, as in the US
senate.
States/UTs No. of Seats
Andhra Pradesh 11
Arunachal Pradesh 1
Assam 7
Bihar 16
Chhattisgarh 5
Goa 1
Gujarat 11
Haryana 5
Himachal Pradesh 3
Jammu and Kashmir (see NOTE above) 4
Jharkhand 6
Karnataka 12
Kerala 9
Madhya Pradesh 11
Maharashtra 19
Manipur 1
Meghalaya 1
Mizoram 1
Nagaland 1
National Capital Territory of Delhi 3
Odisha 10
Puducherry 1
Punjab 7
Rajasthan 10
Sikkim 1
Tamil Nadu 18
Telangana 7
Tripura 1
Uttarakhand 3
Uttar Pradesh 31
West Bengal 16

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1.3. Lok Sabha: Composition Student Notes:

The maximum strength of Lok Sabha is fixed at 552 by the Constitution. A maximum of 530
members are representatives of states. UTs are to be represented by a maximum of 20
members and the President can nominate 2 members from the Anglo-Indian community, if the
community is not adequately represented in the Lok Sabha.
i. Representation of States
The people directly elect the representatives of states from the territorial
constituencies in the states on the basis of principle of universal adult franchise. Every
Indian citizen above 18 years of age, who is not otherwise disqualified, is entitled to
vote in such an election.
ii. Representation of UTs
The members from the UTs are to be chosen in a manner as the Parliament may by law
provide. Accordingly, the Parliament has enacted the Union Territories (Direct Election
to the House of the People) Act, 1965, by which the representatives of UTs are also
chosen by direct election.
iii. Nominated Members
The President can nominate 2 members from the Anglo-Indian community if he/she is
of the opinion that the Anglo-Indian community is not adequately represented in the
Lok Sabha.
Prelims questions
2003
1. Which one of the following statements is correct?
(a) Only the Rajya Sabha and not the Lok Sabha can have nominated members.
(b) There is a constitutional provision for nominating two members belonging to the
Anglo-Indian community to the Rajya Sabha.
(c) There is no constitutional bar for a nominated member to be appointed as a Union
minister.
(d) A nominated member can vote both in the Presidential and Vice-Presidential
elections.
Ans: (c)

2. System of Elections
2.1. Lok Sabha
• Territorial Constituencies
The territory of India is divided into suitable territorial constituencies for the purpose of
holding direct elections to Lok Sabha. The Constitution has provided for uniformity of
representation in two respects:
a. Between the different states: Each state is allotted a number of seats in the Lok Sabha
in such a manner that the ratio between that number and its population is, so far as
practicable, the same for all states. (This provision does not apply to a state having a
population of less than 6 million).
b. Between the different constituencies in the same state: Each 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 is, so far as practicable, the same
throughout the state.
NOTE – According to the Jammu and Kashmir Reorganisation Act, 2019 - On and from the
appointed day, there shall be allocated five seats to the successor Union territory of Jammu
and Kashmir and one seat to Union territory of Ladakh, in the House of the People.

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• Readjustment after each Census Student Notes:

After every Census, a readjustment is to be made in allocation of seats in the Lok Sabha to
the States and division of each State into territorial constituencies. The parliament is
empowered to determine the authority and manner in which it is to be made.
Under Article 82 of the Constitution, the Parliament may by law enact a Delimitation Act
after every census. After the Act comes into force, the Central Government constitutes a
Delimitation Commission. This Delimitation Commission demarcates the boundaries of the
Parliamentary Constituencies as per provisions of the Delimitation Act.
The number of seats allocated to each state was frozen by the 42nd Amendment Act of
1976 till the year 2000 at the 1971 level. The 84th Amendment Act, 2001, extended this
period up to 2026.
The 87 Amendment Act, 2003 allowed the rationalization of territorial constituencies on
th

the basis of census of 2001.

The orders of Delimitation Commission 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 on this behalf. The copies of its orders are laid before the House of
People and the State Legislative Assembly concerned, but no modifications are permissible
in them. So far, Delimitation Commissions have been constituted 4 times - in 1952, 1963,
1973 and in 2002.
• Reservation of seats for SCs and STs
Seats are reserved for SCs and STs in the Lok Sabha on the basis of population ratios of
these groups in each state. Thus, the ratio of Lok Sabha seats reserved in a state for SCs or
STs to the total number of seats allotted to that state in Lok Sabha is the same as the ratio
of SCs or STs population in the concerned state to total population of that particular state.
Currently 84 seats are reserved for SCs and 47 seats for STs in the Lok Sabha.

2.2. Rajya Sabha

The members of Rajya Sabha are elected indirectly by the elected members of the Legislative
Assembly of each state (or an electoral college in case of UTs) by the means of Proportional
Representation by single transferable vote. This was done in order to give some representation
to minority parties and communities. According to the Supreme Court, Rajya Sabha is not a
federal chamber at par with the US Senate. Members do not vote on state lines but on party
lines.
• The Rajya Sabha polls have a system of open ballot, but it is a limited form of openness. As
a measure to check rampant cross-voting, the system of each party MLA showing his or her
marked ballots to the party’s authorised agent, before they are put into the ballot box, has
been introduced. The independent candidates are barred from showing their ballots to
anyone.
• The None of the Above (NOTA) option doesn’t apply to the Rajya Sabha polls.
• The Supreme Court has ruled that not voting for the party candidate will not attract
disqualification under the anti-defection law. As voters, MLAs retain their freedom to vote
for a candidate of their choice. However, the Court observed that since the party would
know who voted against its own candidate, it is free to take disciplinary action against the
legislator concern
• Domicile in a state is not a necessary qualification for a person to be elected as a Member
of Rajya Sabha from a particular state.
• According to the Supreme Court, a member can vote in a Rajya Sabha election even before
taking oath as legislator. It said that voting at the Rajya Sabha polls, being a non-legislative
activity, can be performed without taking oath. A person becomes a member as soon as the

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list of elected members is notified by the ECI. Further, a member can also propose a Student Notes:
candidate before taking oath.
Why proportional representation was not adopted for Lok Sabha?
I. Difficult for the voters to understand the system due to its complicated nature and low
literacy rate in the country.
II. Proportional Representation system is ill suited to Parliamentary system of government,
since it causes the fragmentation of Legislature into small groups. Consequently, the
Parliament would be divided into small groups, which might withdraw support to the
government if something, which displeased them, happened. Thus, it might lead to an
unstable government.

3. Conduct of Business
3.1. Duration of the Houses
• The Rajya Sabha is a permanent body, not subject to dissolution. The Parliament via. the
Representation of People Act, 1951 has provided that the term of office of a member of
Rajya Sabha shall be six years. 1/3rd of its members (as nearly as possible) retire on
expiration of every second year, in accordance with provisions made by the Parliament.
Thus, there is an election of 1/3rd of the membership of the Rajya Sabha at the beginning of
every third year.
o The order of retirement of the members is governed by the Council of States (Term of
Office of Members) Order, 1952, made by the President in exercise of powers conferred
upon him by the Representation of People Act, 1951. In the first batch, it was decided
by lottery as to who should retire.
• The normal life of Lok Sabha is 5 years, but the President may dissolve it earlier. Further, the
normal term of the Lok Sabha may be extended during the period of national emergency by
a law made by the Parliament for one year at a time for any length of time. However, this
extension cannot continue beyond a period of six months after the proclamation of
Emergency ceases to operate.

3.2. Sessions of Parliament

a. Summoning: The President summons each House of the Parliament from time to time. But
the maximum gap between two sessions of Parliament cannot be more than six months. There
are usually three sessions in a year namely:
i. The Budget Session
ii. The Monsoon Session
iii. The Winter Session
A ‘session’ of Parliament is the period spanning between the first sitting of a House and its
prorogation (or dissolution in case of Lok Sabha). During a session, the House meets every
day to transact business. The period spanning between the prorogation of a House and its
reassembly in a new session is termed ‘recess’.
The sitting of a House may be terminated by dissolution, prorogation or adjournment.
b. Adjournment: Within a session, there are a number of meetings. Each daily meeting
consists of two sittings: a morning sitting (11 AM to 1 PM) and a post lunch sitting (2 PM to
6 PM). An adjournment suspends the work in a sitting for a specified time – hours, days or
weeks.
Adjournment Sine Die means terminating a sitting of Parliament for an indefinite period.
The power of adjournment as well as adjournment sine die lies with the presiding officer of
the House.

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c. Prorogation: Prorogation (done by the President) terminates the session of the House. Student Notes:
Though in England prorogation wipes all business pending at the date of prorogation, in
India, all bills pending in Parliament are expressly saved by Art. 107(3). The only effect of a
prorogation is that pending notices, motions and resolutions relapse.
d. Dissolution:
i. As stated earlier, only the Lok Sabha is subject to dissolution. It ends the very life of
the existing House. The dissolution of Lok Sabha may take place in two ways:
a. Automatic dissolution on the expiry of its tenure of five years or the terms as
extended during a national emergency.
b. By an exercise of the President’s power under Art. 85(2)
ii. The President on the advice of Council of Ministers exercises the powers of
dissolution and prorogation. Whereas, the power to adjourn daily sittings of Lok
Sabha and Rajya Sabha belong to the Speaker and Chairman respectively.
iii. Dissolution ends the very life of the Lok Sabha so that all matters (Bills, Motions,
Resolutions, Notices, Petitions etc.) pending before the House lapse with
dissolution. If those matters have to be pursued, they must be re-introduced in the
next House after fresh elections. However, some pending bills and all pending
assurances that are to be examined by the Committee on Government Assurances
do not lapse on the dissolution of the Lok Sabha. The position with respect to
lapsing of bills is as follows:
• A bill pending in the Lok Sabha lapses (whether originating in the Lok Sabha
or transmitted to it by the Rajya Sabha)
• A bill passed by the Lok Sabha but pending in the Rajya Sabha lapses.
• A bill, which is not passed by the two houses due to disagreement and if
the President has notified the holding of a joint sitting before the
dissolution of Lok Sabha, does not lapse.
• A bill pending in the Rajya Sabha not passed by the Lok Sabha does not
lapse.
• A bill passed by both Houses but pending assent of the President does not
lapse.
• A bill passed by both Houses but returned by the President for
reconsideration does not lapse
Lame Duck Session: It refers to the last session of the existing Lok Sabha after a new Lok Sabha
has been elected. Those members of the existing Lok Sabha who could not get re-elected to the
new Lok Sabha are known as lame ducks.
Quorum: It is the minimum number of members required to be present in the House before it
can transact any business. It is 1/10th of the total number of members in each House (including
the Presiding Officer). Thus, a minimum of 55 members in the Lok Sabha and 25 members in
the Rajya Sabha must be present if any business is to be conducted.
Prelims questions:
2016
1. Which of the following statements is/are correct?
1. A bill pending in the Lok Sabha lapses on its prorogation.
2. A bill pending in the Rajya Sabha, which has not been passed by the Lok Sabha,
shall not lapse on dissolution of the Lok Sabha.
Select the correct answer using the code given below:
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2
Ans: (b)

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4. Membership of Parliament Student Notes:

4.1. Qualifications
In order to be chosen as a Member of Parliament, a person:
a. must be a citizen of India;
b. must not be less than 30 years of age in the case of Rajya Sabha and not less than 25 years
of age in the case of Lok Sabha; and
c. must make and subscribe 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.
Additional qualifications may be prescribed by Parliament by law. Consequently, the Parliament
has laid down the following additional qualifications in the Representation of People Act, 1951:
a. He must be registered as an elector for a parliamentary constituency.
b. He must be a member of a scheduled caste or a scheduled tribe in any State or Union
Territory, if he wants to contest a seat reserved for them.

4.2. Disqualifications
• Constitutional and Legislative Provisions
A person is disqualified for being elected as a Member of Parliament by the constitution
(Art. 102) if:
a. He holds any office of profit under the Government of India or the Government of any
State, other than an office declared by Parliament by law not to disqualify its holder;
b. He is of unsound mind and stands so declared by a competent court;
c. He is an undischarged insolvent;
d. 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. He is so disqualified under any law made by Parliament.
Representation of the Peoples Act, 1951 in provides for further grounds for disqualification
for Membership of Parliament:
1. Section 8(1) provides for disqualification on conviction for certain offences
A person convicted of an offence punishable under the following crimes will be
disqualified:
a. Crimes under Indian Penal Code 1860: Disqualification under this provision
pertains to various sections and subsections of the IPC. These include:
i. Section 153A i.e. the offence of promoting enmity between different
groups on ground of religion, race, place of birth, residence, language,
etc., and doing acts prejudicial to maintenance of harmony; or
ii. Section 171E i.e. offence of bribery or
iii. Section 171F i.e. offence of undue influence or personation at an
election or
iv. Section 376(1) or (2) or Section 376A or Section 376B or Section 376C or
Section 376D which include provisions related to to rape; or
v. Section 498A i.e. offence of cruelty towards a woman by husband or
relative of a husband or
vi. Section 505(2) or (3) i.e. offence of making statement creating or
promoting enmity, hatred or ill-will between classes or offence relating
to such statement in any place of worship or in any assembly engaged in
the performance of religious worship or religious ceremonies) of the
Indian Penal Code;

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b. Protection of Civil Rights Act 1955, which provides for punishment for the Student Notes:
preaching and practice of "untouchability", and for the enforcement of any
disability arising there from;
c. Section 11 of the Customs Act, 1962 which relates to the offence of importing or
exporting prohibited goods.
d. Sections 10 to 12 of the Unlawful Activities (Prevention) Act, 1967. This offence
relates to being a member of an association declared unlawful, offence relating to
dealing with funds of an unlawful association or offence relating to contravention
of an order made in respect of a notified place.
e. Foreign Exchange (Regulation) Act, 1973 related to dealings in foreign exchange,
import and export of currency, etc.;
f. Narcotic Drugs and Psychotropic Substances Act, 1985 related to
produce/manufacture/ cultivate, possess, sell, purchase, transport, store, and/or consume
any narcotic drug or psychotropic substance.
g. Section 3 (offence of committing terrorist acts) or Section 4 (offence of committing
disruptive activities) of the Terrorist and Disruptive Activities (Prevention) Act,
1987;
h. Section 7 of the Religious Institutions (Prevention of Misuse) Act, 1988;
i. Offences under various sections of the RPA, 1951: Section 125 (offence of
promoting enmity between classes in connection with the election) or Section 135
(offence of removal of ballot papers from polling stations) or Section 135A (offence
of booth capturing) Section 136(2)(a) (offence of fraudulently defacing or
fraudulently destroying any nomination paper) of RPA, 1951;
j. Section 6 of the Places of Worship (Special Provisions) Act, 1991; which relates to
the conversion of a place of worship.
k. Section 2 or Section 3 of the Prevention of Insults to National Honour Act, 1971;
that relate to the offence of insulting the Indian National Flag or the Constitution of
India and that of preventing singing of National Anthem respectively.
l. Commission of Sati (Prevention) Act, 1987;
m. Prevention of Corruption Act, 1988;
n. Prevention of Terrorism Act, 2002
The period of disqualification under the above offences will be six years from the date
of such conviction if sentenced to only fine, and six years from release in case of an
imprisonment.
2. Under Section 8(2), a person convicted for the contravention of any law regarding
prevention of hoarding or profiteering, adulteration of food or drugs or Dowry
Prohibition Act, 1961 and sentenced to imprisonment for not less than 6 months.
3. Under Section 8(3), a person convicted of any offence (other than any offence
mentioned in Section 8(1) or Section 8(2)) and sentenced to imprisonment for not less
than two years will be disqualified from the date of such conviction and will continue
to be disqualified for a further period of six years since his release.
4. Section 8(4)*: It makes exception for sitting MPs and MLAs. Unlike ordinary candidates,
they will not be disqualified with immediate effect. They will be disqualified only after 3
months from the date of conviction. If they appeal against the decision within 3
months, they will not be disqualified till the court disposes the appeal.
*Lily Thomas Case: The Supreme Court held Section 8(4) as being ultra vires of the
constitution. The Court held that section 8(4) is ‘beyond the powers conferred on
Parliament by the Constitution’.
Under Article 102(1), a person shall be disqualified from being chosen as, and for being,
a member of either House of Parliament, if he is so disqualified by or under any law
made by Parliament. Article 191 makes a similar provision with regard to membership

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of the State Legislative Assemblies or councils. As these Articles make no distinction Student Notes:
between being “chosen as” and “for being” a member, the court had no difficulty in
concluding that Parliament had no power to make a law to undo these express
provisions of the Constitution.
The court, however, clarified that a person—whether a member or a non-member—
will not suffer disqualification if he obtains a stay of his or her conviction, and not just
sentence.
5. Section 8A provides for disqualification on ground of corrupt practices i.e. a person
guilty of certain corrupt practices specified in Section 123 of RPA, 1951 shall stand
disqualified. Such disqualification is subjected to the condition that the charges are
established through an election petition before the High Court and presented to the
President as a High Court Order. Further, the President will decide upon the
disqualification and the duration of such disqualification after obtaining an opinion
from the Election Commission.
6. Section 9 provides that a person who having held an office under the Government of
India or under the Government of any State in the past and has been dismissed for
corruption or for disloyalty to the State will be disqualified for a period of five years
from the date of such dismissal.
7. Section 9A provides for disqualification for government contracts, etc i.e. person shall
be disqualified if there subsists a contract entered into by him in the course of his trade
or business with the appropriate Government for the supply of goods to, or for the
execution of any works undertaken by that Government.
8. Section 10 provides for disqualification for office under government company i.e.A
person shall be disqualified if, and for so long as, he is a managing agent, manager or
secretary of any company or corporation (other than a cooperative society) in the
capital of which the appropriate government has not less than twenty-five per cent
share.
9. Section 10A: Disqualification for failure to lodge account of election expenses.
However, it is mentioned in Section 11 of RPA, 1951 that Election Commission may remove
any of the above disqualification except under Section 8A or reduce the period of any such
disqualification.
• Disqualification on the ground of Defection
The Tenth Schedule to the Constitution, popularly known as the Anti-Defection Law, was
introduced by the Constitution (Fifty-second Amendment) Act, 1985. It was further
amended by the Constitution (Ninety-First Amendment) Act, 2003 and lays down the
conditions regarding disqualification on ground of defection. The main provisions of the
Tenth Schedule are:
▪ An elected member of Parliament, who has been elected as a candidate set up by a
political party and a nominated member of Parliament who is a member of political
party at the time she/he takes her/his seat would be disqualified on the ground of
defection if she/he voluntarily relinquishes her/ his membership of such political
party or votes or abstains from voting in the House contrary to any direction of such
party.
▪ An independent member of Parliament will also be disqualified if she/he joins any
political party after her/his election.
▪ A nominated member of Parliament who is not a member of a political party at the
time of her/ his nomination and who has not become a member of any political party
before the expiry of six months from the date on which she/he takes her/his seat shall
be disqualified if she/he joins any political party after the expiry of the said period of six
months.

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▪ No disqualification would be incurred when a legislature party decides to merge with Student Notes:
another party and such decision is supported by not less than two-thirds of its
members.
▪ Special provision has been made to enable a person who has been elected to the office
of the Speaker or the Deputy Speaker of the House of People or to the office of the
Deputy Chairman of the Council of States to sever her/his connections with her/his
political party without incurring disqualification.
▪ The question as to whether a member of a House of Parliament has become subject to
disqualification will be determined by the presiding officer of the House; whereas the
question is with reference to the Presiding Officer herself/himself it will be decided by
a member of the House elected by the House on that behalf.
As per article 361B of the Constitution, such member of the House belonging to any political
party who is disqualified for being a member of the House under the Tenth Schedule shall also
be disqualified to hold any remunerative political post for duration of the period commencing
from the date of her/his disqualification till the date on which the term of her/his office as such
member would expire or till the date on which she/he contests an election to a House and is
declared elected, whichever is earlier.
4.2.1. 91st Amendment Act
It was brought to implement the recommendations of the committee on Electoral Reforms
(Dinesh Goswami Committee) in its report of 1990, the report of Law Commission of India in its
report on “Reform of Electoral Laws” (1999) and the National Commission to Review the
Working of the Constitution (NCRWC) all of which had recommended outlawing split. It
provides that:
• Split (1/3rd of the members defect from the party) is not an exception to the anti-defection
law.
• Council of Ministers should not be more than 15% of the strength of the lower house.
Art.75 and 164 have been amended to this effect. However, in case of smaller states like
Sikkim, Mizoram and Goa having 32, 40 and 40 Members in the Legislative Assemblies
respectively, a minimum strength of 12 Ministers is proposed.
Advantages of Anti-Defection Law
• It brings political stability.
• It helps in checking corruption.
• It promotes party discipline.
• It restricts the breach of trust with voters.
Criticisms of Anti-Defection Law
• It reduces freedom of speech and expression of MPs.
• It subjects the party to party whip and reduces MP’s accountability to the public.
• The law still has many loopholes and has not been able to completely curb defections, as
seen in Karnataka and MP state assemblies in recent years.
Suggestions for Reforms
• According to Dinesh Goswami Committee, the issues related to defection must be decided
by the President or Governor as per the advice of the Election Commission.
• Dissent within the party shouldn’t be equated with defection.
• In Bangladesh, such matter is referred to a neutral body by the Speaker.
• In Singapore, final decision lies with the Parliament as a whole.
• Finally, it is not simply a matter of law as humans can always circumvent legal provisions.
It’s a matter of ethics, which must be upheld by all the MPs in unison.

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4.3 Vacation of Seats by Members Student Notes:

A Member of Parliament shall vacate his seat in the following cases:

a. Dual Membership:
a) A person cannot become member of both Lok Sabha and Rajya Sabha at one time. If a
person is elected to both the Houses, he needs to intimate within 10 in which House he
desires to serve. If he fails to make such intimation, his Rajya Sabha membership will
end.
b) If a sitting Lok Sabha member becomes Rajya Sabha member or vice versa, his seat in
the first House will become vacant.
c) If a person has contested elections on two seats in a House and is elected on both, he
needs to choose one. If he fails to do so, both the seats will become vacant.
d) Similarly, if a person is elected to the Parliament and a State Legislature then he must
resign his seat in the State Legislature within 14 days; otherwise his seat in the
Parliament shall fall vacant.
b. Disqualification: If a person incurs any of the disqualifications mentioned in Art. 102, RPA,
1951 (Constitutional and Legislative provisions) or the disqualifications on the ground of
defection (10th Schedule). [Kindly refer to Section 4.2]
c. Resignation: A member may resign his seat by writing to the Chairman or the Speaker (as
the case may be). The seat falls vacant upon the acceptance of resignation. However, the
Speaker/Chairman may not accept the resignation if he is satisfied that it is not voluntary or
genuine.
d. Absence without permission: The house may declare a seat vacant if the member in
question is absent from all meetings of the House for a period of 60 days without the
permission of the House. In computing the period of 60 days, no account shall be taken of
any period during which the House is prorogued or adjourned for more than four
consecutive days.

4.4. Salaries and Allowances

Members of Parliament are entitled to receive such salaries and allowances as may be
determined by Parliament. Though there is no provision of pension in the Constitution, the
Parliament has provided pension to the members. The salaries and allowances of the
Speaker/Dy. Speaker of Lok Sabha and Chairman/Dy. Chairman of Rajya Sabha are also
determined by the Parliament. They are charged on the Consolidated Fund of India and are not
subject to annual vote of the Parliament.
Prelims questions:
2017
1. For election to the Lok Sabha, a nomination paper can be filed by
(a) Anyone residing in India.
(b) A resident of the constituency from which the election is to be contested.
(c) Any citizen of India whose name appears in the electoral roll of a constituency.
(d) Any citizen of India.
Ans: (c)

2002
2. The term of the Lok Sabha
(a) Cannot be extended under any circumstances
(b) Can be extended by six months at a time
(c) Can be extended by one year at time during the proclamation of emergency
(d) Can be extended for two years at a time during the proclamation of emergency
Ans: (c)

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5. Presiding Officers of the Parliament Student Notes:

5.1. The Speaker of Lok Sabha

The office of the Speaker occupies a pivotal position in our parliamentary democracy. It has
been said of the office of the Speaker that while the members of Parliament represent the
individual constituencies, the Speaker represents the full authority of the House.
Even though the Speaker speaks rarely in the House, when he does, he speaks for the House as
a whole. The Speaker is looked upon as the true guardian of the traditions of parliamentary
democracy.
In India, through the Constitution of the land, through the Rules of Procedure and Conduct of
Business in Lok Sabha and through the practices and conventions, adequate powers are vested
in the office of the Speaker to help him in the smooth conduct of the parliamentary
proceedings and for protecting the independence and impartiality of the office.
• Election
In the Lok Sabha, the lower House of the Indian Parliament, both Presiding Officers—the
Speaker and the Deputy Speaker- are elected from among its members by a simple majority
and removed by an effective majority (majority of all the then members of the House). As
such, no specific qualifications are prescribed for being elected the Speaker. The
Constitution only requires that Speaker should be a member of the House.
One of the first acts of a newly constituted House is to elect the Speaker. The Speaker pro-
tem presides over the sitting in which the Speaker is elected, if it is a newly constituted
House. If the election falls later in the life of a Lok Sabha, the Deputy Speaker
presides. Usually, a member belonging to the ruling party is elected the Speaker. A healthy
convention, however, has evolved over the years whereby the ruling party nominates its
candidate after informal consultations with the Leaders of other Parties and Groups in the
House. This convention ensures that once elected, the Speaker enjoys the respect of all
sections of the House. There are also instances when members not belonging to the ruling
party or coalition were elected to the office of the Speaker.
The speaker has to vacate his office in case of following instances:
a. If he ceases to be a member of the Lok Sabha.
b. If he resigns by writing to the Deputy Speaker.
c. If he is removed by a resolution passed by a majority of all members of the Lok Sabha.
When such a resolution is under consideration, he cannot preside at the sitting though
he may be present. However, he can speak and take part in the proceedings and vote in
the first instance (though not in case of equality of votes)
Whenever the Lok Sabha is dissolved, the Speaker does not vacate his office and continues
till the newly elected Lok Sabha meets.
• Role and Functions
a. The basic function of the Speaker is to preside over the house and conduct the
meetings of the House in orderly manner. No member can speak in the House without
his permission. He may ask a member to finish his speech and in case the member does
not obey he may order that the speech should not be recorded.
b. All the bills, reports, motions and resolutions are introduced with Speaker’s
permission. He puts the motion or bill to vote.
c. He does not participate in the voting but when there is a tie (equal number of votes on
both sides) he can use his casting vote.
d. His decisions in all parliamentary matters are final. He also rules on points of order
raised by the members and his decision is final.

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e. He is the custodian of rights and privileges of the members. Student Notes:

f. He adjourns the House or suspends a meeting in the absence of a quorum.
g. He disqualifies a member of his/her membership in case of defection under the
provisions of the 10th schedule. The decision of the Speaker is subject to judicial
review.
h. He also accepts the resignation of members and decides about the genuineness of the
resignation.
i. In case of joint sitting of Lok Sabha and Rajya Sabha, the Speaker presides over the
meeting.
j. When a Money Bill is transmitted from the Lower House to the Upper House, the
Speaker shall endorse on the Bill his certificate that it is a Money Bill. The decision of
the Speaker as to whether a Bill is a Money Bill is final.
k. He acts as the ex-officio chairman of the Indian Parliamentary group of the Inter-
Parliamentary Union. He also acts as the ex-officio chairman of the conference of
presiding officers of legislative bodies in the country.
l. He appoints the chairman of all the parliamentary committees of the Lok Sabha and
supervises their functioning
m. He is the chairman of the Business Advisory Committee, the Rules Committee and the
General Purpose Committee.

5.2. Speaker Pro Tem

The speaker of the last Lok Sabha vacates his office immediately before the first meeting of
newly elected Lok Sabha. Therefore, the President usually appoints the senior-most member of
the Lok Sabha as the Speaker Pro Tem. The President administers the oath to him. The Speaker
Pro Tem has all the powers of the Speaker. He presides over the first sitting of the newly elected
Lok Sabha. 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. Thus, it is a temporary
office existing only for a few days.

5.3. Deputy Speaker

While the office of Speaker is vacant or the Speaker is absent from a sitting of the House, the
Deputy Speaker presides except when a resolution for his own removal is under consideration.
While presiding he assumes all the powers of the Speaker.
Whenever he is appointed as a member of a parliamentary committee, he automatically
becomes its chairman.

5.4. Chairman & Deputy Chairman of Rajya Sabha

The Vice-President of India is the ex-officio Chairman of the Rajya Sabha. He presides over the
meetings of Rajya Sabha. In his absence the Deputy Chairman, who is elected by its members
from amongst themselves, presides over the meeting of the House. The Deputy Chairman can
be removed by a majority of all the then members (effective majority) of Rajya Sabha. But the
Chairman (Vice-President) can only be removed from his office by a resolution passed by a
majority of all the then members of Rajya Sabha and agreed to by the Lok Sabha. In both cases,
the office holder needs to be given 14 days’ notice.
He presides over the Rajya Sabha as long as he does not officiate as the President of India
during a vacancy in that office. In such an instance, the Deputy Chairman performs the duties of
Chairman of Rajya Sabha.
The functions of the Chairman of Rajya Sabha are similar to those of the Speaker of Lok Sabha
except that the Speaker has certain special powers according to the constitution (e.g. certifying
a Bill as Money Bill, presiding over a joint sitting of the two Houses etc.)

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Prelims questions: Student Notes:

2017
1. Consider the following statements:
1. In the election for Lok Sabha or State Assembly, the winning candidate must get at
least 50 percent of the votes polled, to be declared elected.
2. According to the provisions laid down in the Constitution of India, in Lok Sabha, the
Speaker’s post goes to the majority party and the Deputy Speaker’s to the
Opposition.
Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2
Ans: (d)
2013
2. Consider the following statements:
1. The Chairman and the Deputy Chairman of the Rajya Sabha are not the members of
that House.
2. While the nominated members of the two Houses of the Parliament have no voting
right in the presidential election, they have the right to vote in the election of the
Vice President.
Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2
Ans: (b)
2004
3. Consider the following statements:
1. The Speaker of Lok Sabha has the power to adjourn the House sine die but, on
prorogation, it is only the President who can summon the House.
2. Unless sooner dissolved or there is an extension of the term, there is an automatic
dissolution of the Lok Sabha by efflux of time, at the end of the period of five years,
even if no formal order of dissolution is issued by the President.
3. The Speaker of Lok Sabha continues in office even after the dissolution of the
House and until ‘immediately before the first meeting of the House’.
Which of the statements given above are correct?
(a) 1 and 2
(b) 2 and 3
(c) 1 and 3
(d) 1, 2 and 3
Ans: (d)
2000
4. Which one of the following statements about a Money Bill is not correct?
(a) A Money Bill can be tabled in either House of Parliament
(b) The Speaker of Lok Sabha is the final authority to decide whether a Bill is a Money
Bill or not
(c) The Rajya Sabha must return a Money Bill passed by the Lok Sabha and send it for
consideration within 14 days
(d) The President cannot return a Money Bill to the Lok Sabha for reconsideration.
Ans: (a)

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5. The Speaker can ask a member of the House to stop speaking and let another member Student Notes:
speak. This phenomenon is known as:
(a) Decorum
(b) Crossing the floor
(c) Interpolation
(d) Yielding the floor
Ans: (d)
Decorum = Parliamentary etiquette.
Crossing the floor = Changing the party.
Interpolation = Seeking clarification through ruling.
Yielding the floor = Respecting Speaker’s order.

6. Leaders in Parliament
6.1. Leader of the House
Under the Rules of Lok Sabha, "Leader of the House" means the Prime Minister, if he is a
member of the House, or a Minister who is a member of the House and is nominated by the
Prime Minister to function as the Leader of the House. Similarly, Leader of the House in the
Rajya Sabha is a Minister and a member of Rajya Sabha and is nominated by the Prime Minister
to function as such. The same functionary in USA is known as the ‘Majority Leader’.

6.2. Leader of the Opposition

The leader of the largest Opposition party having not less than 1/10th seats of the total strength
of the House is recognized as the leader of Opposition in that House. His main function is to
provide constructive criticism of the policies of the government and to provide an alternative
government. The leader of Opposition in the Lok Sabha and Rajya Sabha were awarded
statutory recognition in 1977. They are also entitled to salary and allowances equivalent to that
of a Cabinet Minister. The same functionary in the USA is known as the ‘Minority Leader’.
Leader of Opposition controversy: A party needs 10 per cent of the strength of the House (55
in the Lok Sabha) to stake claim, and the largest Opposition, the Congress, with 44 seats (2014
Lok Sabha elections) was way short of that number. Although UPA had 60 members, this was of
no relevance in appointing Leader of the Opposition. Hence, the Speaker Sumitra Mahajan has
refused to recognize leader of Congress party as Leader of Opposition.
The Congress demanded an amendment to the relevant laws to allow the single-largest party in
the Opposition to send its legislative party leader to attend meetings of key appointment
panels. Amendment was made with regard to the appointment of the CVC and also the CBI
director but the Lokpal Act was not modified to bring the single-largest Opposition party on
board if it did not secure 10 per cent seats in the Lok Sabha.
In 2019 Lok Sabha elections, Congress won 52 seats with UPA at 91, so the current 17th Lok
Sabha doesn’t have a Leader of Opposition as well.
Arguments in favour of compulsorily appointing Leader of Opposition
The 10% rule came about as part of a decision by the very first Speaker, G.V. Mavalankar. This
point was later incorporated in Direction 121 (1) of the Directions by the Speaker, Lok Sabha,
and The Leaders and Chief Whips of Recognised Parties and Groups in Parliament (facilities) Act
of 1998. Many political experts have pointed out that it has become redundant after the
enactment of the Tenth Schedule of the Constitution under which even a one-member party is
recognised as a legislature party. Thus, the decision on appointment of the Leader of
Opposition remains a prerogative of the Speaker.
The issue again came to the fore when the Supreme Court asked the Centre to submit details
on steps it has taken towards appointing a Lokpal, which has been delayed for five years.

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Government had told the court that the Lokpal could not be appointed as there was no Leader Student Notes:
of Opposition in the selection panel and a change in law that would allow the Congress - as
largest opposition group - to be a member has yet to be approved in parliament.
SC told the government that the Lokpal should be set up without delay and the lack of a Leader
of Opposition should not hold up the process. The ruling meant that the government can select
a Lokpal without taking the Congress, the main opposition group, on board.
Arguments against
Because, the post of Leader of the Opposition can go only to the leader of a political party and
not to the leader of an alliance, whether formed before the election or after, it would be “highly
irregular” to give the post to the leader of any party in the current Lok Sabha as no party meets
the minimum requirement of seats. Besides, public funds are involved as the Leader of the
Opposition enjoys the rank of a Cabinet Minister with all attendant perks and benefits.
Way Forward
Failing to appoint a Leader of Opposition could have a negative effect on Indian democracy. The
absence of a countervailing opinion in appointing the Lokpal would allow the government
completely free rein.
Courts cannot inquire into proceedings of Parliament, but recognising the Leader of Opposition
is not a proceeding of the House within the meaning of Article 122. Hence, in the interest of the
democracy and legislature’s control over government, SC can ask Speaker to appoint a leader of
opposition even if his/her party fails to capture 10% seats.

6.3. Whip
The concept of the whip was inherited from colonial British rule. Every major political party
appoints a whip, who is responsible for the party's discipline and behaviour on the floor of
the house. Usually, he directs the party members to stick to the party's stand on certain issues
and directs them to vote as per the direction of senior party members. Disciplinary action can
be taken against the members in case of violation of direction of the whip. However, there are
some cases such as Indian presidential election where no whip can be issued directing Member
of Parliament or Member of Legislative Assembly on whom to vote. This office is based on
conventions of parliamentary government and is mentioned neither in the Constitution nor in
the Rules of the House or in a parliamentary statute.
Prelims questions:
2018
1. Consider the following statements:
1. In the first Lok Sabha, the single largest party in the opposition was the Swatantra
Party.
2. In the Lok Sabha, a "Leader of the Opposition" was recognised for the first time in
1969.
3. In the Lok Sabha, if a party does not have a minimum of 75 members, its leader
cannot be recognised as the Leader of the Opposition.
Which of the statements given above is/are correct?
(a) 1 and 3 only
(b) 2 only
(c) 2 and 3 only
(d) 1, 2 and 3
Ans: (b)

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7. Devices of Parliamentary Proceedings Student Notes:

7.1. Question Hour

Question Hour is the first
hour of a parliamentary
sitting devoted to
questions that Members
of Parliament raise about
any aspect
of administration and
government activity. It is
mentioned in the Rules of
Procedure of the House.
The concerned Minister is
obliged to answer to the
Parliament, either orally or
in writing, depending on
the type of question raised. Questions are one of the ways Parliament can hold
the executive accountable. The questions are of three kinds:
a. A Starred Question (distinguished by an asterisk) requires an oral answer and hence
supplementary questions can follow. Only 20 questions can be listed for oral answer on a
day.
b. An Unstarred Question requires a written answer and hence, supplementary questions
cannot follow. Only 230 questions can be listed for written answer on a day.
c. A short notice question is one which relates to a matter of urgent public importance and is
asked by giving a notice of less than 10 days. It is answered orally.
Notices of Questions
A member gives notice in writing addressed to the Secretary-General, Lok Sabha/Rajya Sabha,
intimating his intention to ask a question. Besides the text of the question, the notice states
clearly:
• the official designation of the Minister to whom the question is addressed.
• the date on which the question is desired to be placed on the list of questions for answer.
• the order of preference, if any, for its being placed on the list of questions when a member
tables more than one notice of questions for the same day.
The normal period of notice of a question is not more than twenty-one and not less than ten
clear days. A short notice question can be asked with a notice shorter than ten days, but the
member has to state briefly the reasons for asking the question at short notice.

7.2. Zero Hour

The time immediately following the Question Hour has come to be known as "Zero Hour". It
starts at around 12 noon (hence the name) and members can, with notice to the Speaker prior
to the start of the daily session, raise issues of urgent public importance during this time. It is an
Indian innovation (not mentioned in the Rules of Procedure) and has been in existence since
1962.
• In Lok Sabha, only 20 matters are allowed to be raised during the Zero Hour.
• In Rajya Sabha, total number of requests is not allowed to exceed seven on a single day.
• A member is allowed to make only one Zero Hour request during a week.
• It is not mandatory to have a Zero Hour every day during the session.

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7.3. Motions Student Notes:

Discussion on any matter can take place only when a motion is made with the consent of the
presiding officer. The House expresses its decisions or opinions on various issues through the
adoption or rejection of motions moved by ministers or private members. The motions are of
three principal categories:
a. Substantive Motion: It is a self-contained independent proposal dealing with a very
important matter like impeachment of the President or removal of Chief Election
Commissioner.
b. Substitute Motion: It is moved in substitution of an original motion and proposes an
alternative to it. If adopted by the House, it supersedes the original motion.
c. Subsidiary Motion: It is a motion that, by itself, has no meaning and cannot state the
decision of the House without reference to the original motion or proceedings of the
House. It is divided into three sub-categories:
i. Ancillary Motion: It is used as the regular way of proceeding with various kinds of
business.
ii. Superseding Motion: It is moved in the course of debate on another issue and
seeks to supersede that issue.
iii. Amendment: It seeks to modify or substitute only a part of the original motion
Closure Motion
It is a motion moved by a member to cut short the debate on a matter before the House. If the
House approves it, debate is stopped and the matter is put to vote. There are four kinds of
closure motions:
i. Simple Closure: It is one when a member moves that the ‘matter having been
sufficiently discussed be now put to vote’.
ii. 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.
iii. 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.
iv. 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)
Privilege Motion
It is concerned with the breach of parliamentary privileges by a Minister. It is moved be a
member when he feels that a minister has committed breach of privilege of the House or one
or more of its members by withholding facts of a case or by giving wrong or distorted facts.
Calling Attention Motion
It is introduced by a member to call the attention of a Minister to a matter of urgent public
importance and to seek an authoritative statement from him on that matter.
Like the zero hour, it is also an Indian innovation in the parliamentary procedure and has been
in existence since 1954. However, unlike the zero hour, it is mentioned in the Rules of Procedure
Adjournment Motion
Adjournment Motion is the procedure for adjournment of the business of the house for the
purpose of discussing a matter of urgent public importance, and needs the support of 50
members to be admitted. The Adjournment Motion, if admitted, leads to setting aside of the
normal business of the House for discussing the matter mentioned in the Motion. The
discussion on an adjournment motion should last for not less than two hours and thirty
minutes.

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The right to move a motion for an adjournment of the business of the House is subject to the Student Notes:
following restrictions.
• It should raise a matter which is definite, factual, urgent and of public importance;
• It should not cover more than one matter;
• It should be restricted to a specific matter of recent occurrence and should not be framed
in general terms;
• It should not raise a question of privilege;
• It should not revive discussion on a matter that has been discussed in the same session;
• It should not deal with any matter that is under adjudication by the court; and
• It should not raise any question that can be raised on a distinct motion.
The purpose of an Adjournment Motion is to take the Government to task for a recent act of
omission or commission having serious consequences. Its adoption is regarded as a sort of
censure of the Government. Thus, Rajya Sabha is not permitted to make use of this device.
No-Confidence Motion
In India, a Motion of No Confidence can be introduced only in the Lok Sabha. The motion is
allowed for discussion when a minimum of 50 members of the Lok Sabha support the motion. If
the motion carries, the Lok Sabha debates and votes on the motion. If majority of the members
of the Lok Sabha vote in favour of the motion, the motion is passed and the Government is
bound to vacate the office in accordance with Article 75 of the Constitution, which says that the
council of ministers shall be collectively responsible to the Lok Sabha.
Censure Motion
This motion can be moved only in the Lok Sabha by the Opposition of the House. It can be
moved against the Council of Ministers or an individual Minister or a group of Ministers for their
failure to act or for certain policies and actions and may express regret, indignation or surprise
of the House at the failure of the Minister or Ministers.
The Motion should be specific and self-explanatory so as to record the reasons for the censure,
precisely and briefly (No-Confidence motion does not need to state such reasons). If the
Censure Motion is passed, the Council of Ministers need not resign from office but is bound to
seek the confidence of the Lok Sabha as early as possible.
Motion of Thanks
The first session after each general election and the first session of every fiscal year is
addressed by the president. In this address, the president outlines the policies and programmes
of the government in the preceding year and ensuing year.
This address of the president, which corresponds to the ‘speech from the Throne in Britain’, is
discussed in both the Houses of Parliament on a motion called the ‘Motion of Thanks’. At the
end of the discussion, the motion is put to vote. This motion must be passed in the House.
Otherwise, it amounts to the defeat of the government.

7.4. Resolutions
A resolution is one of the procedural devices to raise a discussion in the House on a matter of
general public interest. Subject to the provisions of the rules, a members or a Minister may
move a resolution. A member who has moved a resolution or amendment to a resolution
cannot withdraw the same by leave of the House. Resolutions are classified into three
categories:
i. Private Member’s Resolution: It is moved by a private member and is discussed only on
alternate Fridays and in the afternoon sitting.

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ii. Government Resolution: It is moved by a minister and can be taken up any day from Student Notes:
Monday to Thursday.
iii. Statutory Resolution: It can be moved by a private member or a minister. It is so called
as it is always tabled in pursuance of a provision in the constitution or an act of the
Parliament.
7.4.1. Differences between Motions and Resolutions
i. While all resolutions are substantive motions, a motion need not necessarily be
substantive.
ii. All motions are not necessarily put to vote of the House, whereas all resolutions are
required to be voted upon.

7.5. Point of Order

A Point of Order relates to the interpretation or enforcement of the Rules of Procedure or such
articles of the Constitution that regulate the business of the House. It should raise a question
that is within the cognizance of the presiding officer. A member can raise a point of order when
the proceedings of the House do not follow the normal rules of procedure. It is an extraordinary
device as it suspends the proceedings before the House. No debate is allowed on a Point of
Order.
Prelims questions:
2017
1. The Parliament of India exercises control over the functions of the Council of Ministers
through
1. Adjournment motion
2. Question hour
3. Supplementary questions
Select the correct answer using the code given below:
(a) 1 only
(b) 2 and 3 only
(c) 1 and 3 only
(d) 1, 2 and 3
Ans: (d)
2014
2. Consider the following statements regarding a No-Confidence Motion in India:
1. There is no mention of a No-Confidence Motion in the Constitution of India.
2. A Motion of No-Confidence can be introduced in the Lok Sabha only.
Which of the statements given above is / are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2
Ans: (c)

8. Legislative Procedure in Parliament

The Bills introduced in the Parliament can be classified into four categories:
i) Ordinary Bills which are concerned with any matter other than financial subjects
ii) Money Bills, which are concerned with financial matters.
iii) Financial Bills which are concerned with financial matters (but are different from Money
Bills)
iv) Constitution Amendment Bills, which are concerned with the amendment of various
provisions of the constitution.

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8.1. Ordinary Bills Student Notes:

The different stages in the legislative procedure in Parliament relating to Ordinary Bills are as
follows:
i) First Reading/Introduction: Article 107(1) suggests that an ordinary bill can be introduced
in either House of Parliament i.e. Lok Sabha or Rajya Sabha. However, it is required to be
passed by both the houses before it is sent for the assent of the President. It can be
introduced either by a Minister or by a private member. In the former case it is known as a
Government Bill and in the latter case it is known as a Private Member’s Bill.
It is to be noted that any member other than a minister, however, who wants to introduce
the bill has to give notice of such intention and ask for the leave of the house. If a bill has
been published in the official gazette before its introduction, no motion for leave of the
house is necessary for its introduction.
If leave of the house is granted, the Bill is introduced. This stage is known as the First
Reading of the Bill. If the motion for leave to introduce a Bill is opposed, the Speaker may,
in his discretion, allow brief explanatory statement to be made by the member who
opposes the motion and the member-in-charge who moved the motion. Where a motion
for leave to introduce a Bill is opposed on the ground that the Bill initiates legislation
outside the legislative competence of the House, the Speaker may permit a full discussion
on it. Thereafter, the question is put to the vote of the House.
ii) Publication in Gazette: After a Bill has been introduced, it is published in the Official
Gazette as soon as possible. Even before introduction, a Bill might, with the permission of
the Speaker, be published in the Gazette. In such cases, leave to introduce the Bill in the
House is not asked for and the Bill is straightaway introduced.
iii) Second Reading/Consideration Stage: The Second Reading is the most detailed of all
stages for this is where the bill is minutely examined. It can be thought of as consisting of
two stages.
a. First Stage: The first stage consists of general discussion on the Bill as a whole. The
principle underlying the Bill is discussed and not the details. Hereafter, it is upon the
House to refer the Bill to a Select Committee of the House or a Joint Committee of the
two Houses or to circulate it for the purpose of eliciting opinion thereon or to
straightaway take it into consideration.
• In case of Select committee, members are chosen from amongst the members of
the house where the bill originated while in case of a Joint Committee, members
are selected from both houses. The Chairman of the joint committee is chosen by
the presiding officer of the House where the bill originated.
• If a Bill is referred to a Select/Joint Committee, the Committee considers the Bill
clause-by-clause just as the House does. Members of the Committee can move
amendments to the various clauses. The Committee can also take evidence of
associations, public bodies or experts who are interested in the measure.
• After the Bill has thus been considered and adopted by the committee, the Lok
Sabha secretariat prepares a report for presentation to the House, which then
considers the Bill again as reported by the Committee.
• If a Bill is circulated for the purpose of eliciting public opinion thereon, such
opinions are obtained through the Governments of the States and Union
Territories. Opinions so received are laid on the Table of the House and the next
motion in regard to the Bill must be for its reference to a Select/Joint Committee. It
is not ordinarily permissible at this stage to move the motion for consideration of
the Bill before it goes through the Committee stage as stated earlier.
• After the report of the Select Committee is presented to the house, the minister
may make any of the motions-that the bill be taken for consideration as reported

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by the committee or be referred to the same or a different committee or Student Notes:

circulated/re-circulated for seeking further opinion.
b. Second Stage: After the motion that the bill be taken into consideration is adopted, it
gets into the second stage. This stage consists of clause-by-clause consideration of the
Bill as introduced or as reported by Select/Joint Committee. Discussion takes place on
each clause of the Bill and amendments to clauses can be moved at this stage.
Amendments to a clause that have been moved but not withdrawn are put to the vote
of the House before the relevant clause is disposed of by the House. The amendments
become part of the Bill if they are accepted by a majority of members present and
voting.
iv) Third Reading Thereafter, the member-in-charge can move that the Bill be passed. This
stage is known as the Third Reading of the Bill. At this stage the debate is confined to
arguments either in support or rejection of the Bill without referring to its details other
than those that are absolutely necessary. Only formal, verbal or consequential
amendments are allowed to be moved at this stage. In passing an ordinary Bill, a simple
majority of members present and voting is necessary.
v) Bill in the other House: After the Bill is passed by one House, it is sent to the other House
to seek their concurrence. Here also it goes through the stages described above except the
introduction stage. The other House can take either of the following courses:
a. It may reject the Bill altogether. In such a case provisions of Art 108(1) (a) as to a joint
sitting may be applied by the President.
b. It may pass the Bill as it is or with amendments. If passed as it is, the bill goes to the
President for his assent. However, in case of amendments, the Bill will be returned to
the originating House. If the House which originated the Bill accepts the Bill as
amended by the other House, it will be presented to the President for his assent (Art.
111). If however the originating House does not agree to the amendments made by
the other House and the bill is sent again to the latter for its concurrence. If the latter
house continues to insist on its amendments, there is a deadlock.
c. The latter house may take no action on the Bill i.e. keep it lying on its Table. In such a
case if more than 6 months elapse from the date of receipt of the Bill, a deadlock is
deemed to have taken place. While calculating such period of six months, no account
shall be taken of any period during which the House is prorogued or adjourned for
more than four consecutive days.
d. To resolve the deadlock, the President may summon a joint sitting to deliberate and
vote on the bill, unless it has lapsed because of the dissolution of the Lok Sabha. The
Joint Sitting is presided over by the Speaker of the Lok Sabha. At the joint sitting, the
decision is taken by the majority of the total number of members of both houses
present and voting.
vi) President’s Assent: When a Bill has been passed by both Houses of Parliament either
singly or at a joint sitting as provided in Art. 108, the Bill is presented to the President for
his assent. If the President withholds his assent, there is an end to the Bill. If he gives his
assent, the Bill becomes an Act from the date of his assent. Instead of either refusing
assent or giving assent, the President may return the Bill for reconsideration of the Houses
with a message requesting them to reconsider it. If, however, the Houses pass the Bill again
with or without amendments and the Bill is presented to the President for his assent after
such reconsideration, the President shall have no power to withhold his assent from the
Bill.

8.2. Money Bills

Under article 110(1) of the Constitution, a Bill is deemed to be a Money Bill if it contains only
provisions dealing with all or any of the following matters, namely:
a) The imposition, abolition, remission, alteration or regulation of any tax.

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b) The regulation of the borrowing of money or the giving of any guarantee by the Student Notes:
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 of 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; The declaring of any
expenditure to be expenditure charged on the Consolidated Fund of India or the increasing
of the amount of any such expenditure.
e) 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; or
f) Any matter incidental to any of the matters specified in sub-clauses (a) to (f).
A Bill is not deemed to be Money Bill by reason only that it provides for:
i) The imposition of fines or other pecuniary penalties.
ii) The demand or payment of fees for licenses or fees for services rendered.
iii) The imposition, abolition, remission, alteration or regulation of any tax by any local
authority or body for local purposes.
A Money Bill can be introduced in the Lok Sabha only. It can only be introduced on the prior
recommendation of the President. The Rajya Sabha cannot make any amendments to it or
reject it, but can give its recommendations. Rajya Sabha has to return the Bill to the Lok Sabha
in 14 days with or without recommendation. The Lok Sabha may or may not accept oots
recommendations. If after 14 days, the bill is not returned to the Lok Sabha, it is deemed to
have been passed both the houses at the expiration of 14 days. Hence, the power of the Rajya
Sabha wrt Money Bills is not co-equal with the Lok Sabha as is the case with ordinary bills. It is
merely consultative. There is no chance of any disagreement between the two houses in regard
to Money Bills. President cannot return a Money Bill for reconsideration. Furthermore, the
defeat of its motion to pass a money bill in the Lok Sabha leads to the resignation of the
government.
Furthermore, Constitution Amendment Bills cannot be treated as Money Bill, even if all its
provisions attract article 110(1). This is because such amendments are governed by article 368
which over-rides the provisions regarding Money Bills.
Certification of Money Bills
i) The Constitution of India under Article 110(4) requires that every money bill has to be
certified so by the Speaker of the Lok Sabha before its transmission to the Rajya Sabha.
Hence, if any question arises whether a Bill is a Money Bill or not, the decision of Speaker
is final. The Speaker is under no obligation to consult any one in coming to a decision or in
giving his certificate that a Bill is a Money Bill.
ii) The Speaker’s certificate on a Money Bill once given is final and cannot be challenged.
iii) A Money Bill cannot be referred to a Joint Committee of the Houses.
Categories of Money Bills
1. Finance Bill: Finance Bill is a secret bill introduced in Lok Sabha every year immediately
after the presentation of the General Budget to give effect to the financial proposals of the
Government of India for the following financial year. Finance Bills are treated as Money
Bills since they substantially deal with amendments to various tax laws and other incidental
matters.
2. Appropriation Bill: An Appropriation Bill is introduced in Lok Sabha immediately after
adoption of the relevant demands for grants. Such Bills are categorised as Money Bills as
they seek to authorise appropriation from the Consolidated Fund of India, of all moneys

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required to meet the grants made by the House and the expenditure charged on the Student Notes:
Consolidated Fund of India.

8.3. Financial Bills

Commonly, any bill that relates to revenue or expenditure can be thought of as a Financial Bill.
However, the term Financial Bill has been used in a technical sense in the Indian Constitution
which makes it important to be understood clearly in relation to a money bill.
Only those Financial Bills can be money bills which bear the certificate of the Speaker of the Lok
Sabha to that effect. Financial bills that do not receive the certificate of the Speaker can be of
two types, as have been dealt with under Article 117 of the Indian Constitution:
1. First Class [Financial Bills under Article 117 (1)]: Bills that contain any of the matters
specified in Article 110 but does not contain solely those matters.
2. Second Class [Financial Bills under Article 117(3)]: Any ordinary bill that contains
provisions involving expenditure from the Consolidated Fund of India.
Comparison between Money Bills and Financial Bills
i) While a Money Bill deals solely with matters specified in article 110(1) (a) to (g) of the
Constitution or incidental matters, a Financial Bill does not exclusively deal with all or
any of the matters specified in the said article that is to say it contains some other
provisions also.
ii) Financial Bills of the first class, like Money Bills, can be introduced only in Lok Sabha on
the recommendation of the President. However, other restrictions in regard to Money Bills
do not apply to this category of Bills. Financial Bill under article 117(1) of the Constitution
can be referred to a Joint Committee of the Houses.
iii) Financial Bills of the second class i.e. those under article 117 (3) of the Constitution can be
introduced in either House of Parliament like any other ordinary Bill.
However, recommendation of the President is essential for consideration of these Bills by
either House and unless such recommendation is received, neither House can pass the Bill.
However, the Bill may be introduced without President’s recommendation, but in such a
case its consideration cannot take place.

8.4. Constitution (Amendment) Bills

Article 368 of the Indian Constitution lays the procedure for the amendment of the
Constitution. The Constitution does not provide for a separate Constituent Body to amend the
constitution. This power has been vested in the Parliament itself. An amendment of the
Constitution may be initiated in either House of the Parliament. This bill can be presented both
by the Government or a Private Member. However, in case such a bill is brought by a Private
Member, it has to be examined and recommended for introduction in the House by the
Committee on Private Members’ Bills and Resolutions.
In context of the procedure involving their amendment, there are three categories of articles in
the Constitution:
• Articles amendable by a Simple Majority
• Artciles that require special majority
• Articles that require Special Majority as well as ratification by legislatures of not less than
half of the States of the Indian Union.
a. Amendment by Simple Majority: A bill that seeks to amend the following provisions of the
Constitution require only simple majority and shall not be deemed to be a Constitution
(Amendment) Bill under Article 368:
1. admission or establishment of new states, formation of new states and alteration of areas,
boundaries or names of existing ones (Articles 2,3 & 4)

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2. creation or abrogation of Legislative Councils in a State (article 169) Student Notes:

3. administration and control of Scheduled areas and Scheduled tribes (para 7 of the Fifth
Schedule)
4. administration of Tribal areas in the states of Assam, Meghalaya and Mizoram (para 21 of
the Sixth Schedule)
A bill providing for the formation of new states and alteration of areas, boundaries or names of
existing ones, can be introduced in either House of the Parliament only on the recommendation
of the President. Before making such recommendation, the President shall refer the bill to the
concerned states for their views within such period as specified by him. However, the President
is not bound by the views of the states.
For the Parliament to pass a law providing for the creation or abolition of a Legislative Council
in a State, the legislative assembly of the State has to pass a resolution to that effect by a
majority of not less than two thirds of the members of the assembly present and voting. The
Parliament however may approve or disapprove of such resolution or may not take any action
on it.
b. Amendment by Special Majority: A bill that seeks to amend any part of the Constitution has
to be passed by a special majority i.e. a majority of the total membership of that House and by
a majority of not less than two thirds of the members of that House present and voting. In the
strictest sense, the special majority is required for voting at the third reading stage of the bill.
However, exercising abundant caution, the requirement of special majority has been provided
for all effective stages of the Bill in the Rules of the Houses.
c. Amendment by Special Majority and ratification by states: A bill seeking to amend the
following provisions of the Constitution has to be passed by a special majority of both houses of
the Parliament and has also to be ratified by the legisaltures of not less than half of the states
by passing resolutions to that effect, before it is presented to the President for assent:
1. the election of the President (Article 54 & 55),
2. the extent of the executive power of the Union and the States (Art 73 & 162),
3. the Supreme Court and the High Courts (Article 341, Chapter IV of Part V and Chapter V of
Part VI of the Constitution),
4. representation of states in the Parliament, or
5. the procedure for amendment of the Constitution itself (Article 368)
There is no time limit prescribed by the Constitution within which the States must signify their
ratification of a Constitution (Amendment) Bill.

9. Financial Legislation by the Parliament

9.1. Annual Financial Statement/Budget
As per Article 112 of the Constitution, at the beginning of each financial year, the President of
India causes to be laid before both the Houses of the Parliament, a statement of the estimated
receipts and expenditure of the Government of India for that year. This is known as the ‘annual
financial statement’ or commonly known as the Budget for that financial year.
The Budget not only provides estimates but also presents an opportunity to the Government to
review and explain its financial and economic policy and programmes to the Parliament. It is a
money bill. The estimated expenditure shows separately in the Annual Financial Statement as:
1. Expenditure charged upon the Consolidated Fund of India
2. Expenditure to be made from the Consolidated Fund of India
The presentation of the Annual Financial Statement is followed by a general discussion in both
the Houses of the Parliament. At this stage no motion is moved nor is the Budget put to vote.
The role of the Rajya Sabha does not extend beyond this general discussion.

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After this General discussion is over, estimates are then submitted in the form of demand for Student Notes:
grants on particular heads and each particular head is then voted on in the House of People.
While the estimates related to the expenditure charged upon the Consolidated Fund of India
cannot be put to vote of the Parliament, each house can discuss any of these estimates. These
include:
• Emoluments and allowances of President and expenditure of his/her office.
• Salary and allowance of Chairman, Vice Chairman of Upper house and Speaker, Deputy
Speaker of Lower house.
• Salary, Allowances, Pensions of Judges of SC
• Pensions of judges of HC
• Salary, Allowances, Pensions of CAG.
• Salary, Allowances, Pensions of UPSC chairperson and its members
• Administrative expenses of the office of CAG, UPSC, and SC
• Debt charges for which Government of India is liable
• Sums required for enforcement of any judgment, decree etc.
• Other expenditure defined by an Act of Parliament to be charged on consolidated fund of
India.
On the other hand, the estimates of the expenditure, other than those which are charged, are
placed before the Lok Sabha in the form of ‘demand for grants’ to be voted on.
9.1.1. Cut Motions
Cut motions are part of the budgetary process which seeks to reduce the amounts for grants.
They can be moved in the Lok Sabha only. Cut Motions can be divided into three categories:
1. Disapproval of Policy Cut: That the amount of the demand be reduced to Re.1/-'
representing disapproval of the policy underlying the demand. A member giving notice of
such a motion shall indicate in precise terms the particulars of the policy which he proposes
to discuss. The discussion should be confined to the specific point or points mentioned in
the notice and it shall be open to members to advocate an alternative policy.
2. Economy Cut: The objective of the motion is to reduce the amount of die expenditure and
the form of the motion is “The amount of the demand be reduced by Rupee… (a specified
amount)”. Such specified amount may be either a lump sum reduction in the demand or
omission or reduction of an item in the demand.
3. Token Cut: The objective of the motion is to ventilate a specific grievance within the sphere
of responsibility of the Government of India and its form is “The amount of the demand
be reduced by Rupee 100″.
9.1.2. Appropriation Bill
As soon as the demand for grants have been voted by the House of People, a bill to provide for
the appropriation out of the Consolidated Fund of India is introduced. This bill is called the
Appropriation Bill. No money can be withdrawn from the Consolidated Fund of India except
under an Appropriation Act.
This Bill provides for appropriation of money related to:
1. The grants so made by the House of the People; and
2. The expenditure charged on the Consolidated Fund of India
9.1.3. Finance Bill
Similarly, the taxing proposals of the budget are provided for in another bill called the Annual
Finance Bill. The Finance Bill is taken up for consideration and passing after the Appropriation
Bill is passed. However, certain provisions in the Bill relating to levy and collection of fresh
duties or variations in the existing duties come into effect immediately on the expiry of the day

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on which the Bill is introduced by virtue of a declaration under the Provisional Collection of Student Notes:
Taxes Act.
Each of these bills are then passed as a Money Bill and no amendment relating to varying the
amount or altering its destination or varying the amount charged on the Consolidated Fund of
India can be proposed. The Parliament has to pass the Finance Bill within 75 days of its
introduction.
9.1.4. Vote on Account
As the whole process of Budget beginning with its presentation and ending with discussion and
voting of demands for grants and passing of Appropriation Bill and Finance Bill generally goes
beyond the current financial year, a provision has been made in the Constitution empowering
the Lok Sabha to make any grant in advance through a vote on account to enable the
Government to carry on until the voting of demands for grants and the passing of the
Appropriation Bill and Finance Bill.
Normally, the vote on account is taken for two months for a sum equivalent to one sixth of the
estimated expenditure for the entire year under various demands for grants. During an election
year, the vote on account may be taken for a longer period say, 3 to 4 months if it is anticipated
that the main demands and the Appropriation Bill will take longer than two months to be
passed by the House.
As a convention vote on account is treated as a formal matter and passed by Lok Sabha without
discussion.
Vote on account is passed by Lok Sabha after the general discussion on the Budget (General and
Railway) is over and before the discussion on demands for grants is taken up.
9.1.5. Interim Budget
An outgoing government is required to present an interim budget if its tenure is about to come
to an end due to impending General Elections. In such situations, the task of presenting a full
Budget is left for the next government. A full Budget approves government spending for the full
financial year. So for any reason, if the government of the day is not able to present in the
Parliament a full budget before the end of the financial year, it requires Parliament’s sanction
for expenditures till the time a full Budget is presented.
An Interim Budget gives the complete financial statement, very similar to a full Budget, albeit
for a period lesser than year. It is not the same as a 'Vote on Account'. While a 'Vote on
Account' deals only with the expenditure side of the government's budget, an Interim Budget is
a complete set of accounts, including both expenditure and receipts.
While the law does not debar the Union government from introducing tax changes, successive
governments have avoided making any major changes in income tax laws during an Interim
Budget.

9.2. Accounts of Government of India

The accounts of Government are maintained in three parts: -
• Consolidated Funds of India
• Contingency Funds of India
• Public Account
9.2.1. Consolidated Fund of India
All the revenues received by the Government by way of taxes and non-tax revenues are
credited to the Consolidated Fund constituted under Article 266(1) of the Constitution of India.
The inflow to this fund is by way of taxes like Income Tax, Central Excise, Customs and also non-

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tax revenues, which arise to the government in connection with the conduct of its business. Student Notes:
Loans raised by issue of treasury bills are also received in this fund. The government meets all
its expenditure including loan repayments from this fund. No amount can be withdrawn from
the fund without the authorization from the Parliament.
9.2.2. Public Account
The Public Account is constituted under Article 266 (2) of the Constitution. All other public
moneys (other than those covered under Consolidated Fund of India) received by or on behalf
of the Government of India are credited to the public account of India.
The transactions under Debt, Deposits and Advances in this part are those in respect of which
Government incurs a liability to repay the money received or has a claim to recover the
amounts paid. The receipts under Public Account do not constitute normal receipts of
Government. Parliamentary authorization for payments from the Public Account is therefore
not required. This fund can be operated by executive action only.
9.2.3. Contingency Fund of India
The Contingency Fund of India is set up in the nature of an imprest account under Article 267
(1) of the Constitution of India. The corpus of this fund is Rs. 500 crores. Advances from the
fund are made for the purposes of meeting unforeseen expenditure by the President of India.
The amount is resumed to the Fund to the full extent as soon as Parliament authorizes
additional expenditure. The Secretary to the Government of India, Ministry of Finance,
Department of Economic Affairs holds the fund on behalf of the President of India.

9.3. Charged Expenditure

In order to preserve the independence of certain institutions, the constitution provides that
some expenses are supposed to be charged on the consolidated funds of India. It means that
though parliament is empowered to discuss these expenses, they do not constitute the votable
part of the budget. Hence parliament doesn’t exercise direct financial control over these
institutions.

10. Procedure for removing deadlock between the two

Houses
A deadlock is deemed to have taken place if:
(i) The Bill is rejected by the other House.
(ii) If the two Houses fail to agree upon the provisions of the Bill as introduced or upon the
amendments that may have been proposed by either House.
(iii) If more than six months have elapsed from the date of receipt of the Bill by the other
House without the Bill being passed by it.
Such a situation does not arise in case of Money Bills, since the Lok Sabha has the final power
of passing it. In case of a disagreement over a Money Bill, the Lok Sabha has the plenary power
to override the wishes of the Rajya Sabha.
In case of a Constitution Amendment Bill, there is no provision of a joint sitting and it must be
passed in both Houses separately.
With respect to all other Bills (including ‘Financial Bills), the machinery provided by the
Constitution for resolving a deadlock is a joint sitting of the two Houses (Art. 108)

10.1. Joint Sitting

The President may notify to the Houses his intention to summon them for a joint sitting in case
of a deadlock. Such a notification cannot be made by the President if the Bill has already lapsed
due to the dissolution of the Lok Sabha. However, once the President has notified his intention

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to hold a joint sitting, the subsequent dissolution of Lok Sabha cannot stand in the way of the Student Notes:
joint sitting being held.
The Speaker of Lok Sabha presides over a joint sitting of two Houses and the Deputy Speaker in
his absence. If the Deputy Speaker is also absent, the Deputy Chairman of Rajya Sabha presides.
If he is also absent, such other person as may be determined by the members present at the
joint sitting, presides over the meeting. It is clear that the Chairman of Rajya Sabha does not
preside over a joint sitting as he is not a member of either House of Parliament.
The quorum to constitute a joint sitting is 1/10th of the total number of members of the two
Houses. The joint sitting is governed by Rules of Procedure of Lok Sabha and not of Rajya Sabha.
Normally, due to larger membership, the Lok Sabha succeeds in getting its demands fulfilled.
There are restrictions on amendments to the Bill, which may be proposed at the joint sitting:
i) If, after its passage in one House, the Bill has been rejected or has not been returned by
the other House, only such amendments may be proposed at the joint sitting, which are
made necessary by the delay in the passage of the Bill.
ii) Other amendments as are relevant to the matters pertaining to which the Houses have
disagreed, may be proposed at the joint sitting.
Since 1950, the provision of a joint sitting has been invoked only four times for the following
bills:
i) Dowry Prohibition Bill, 1960
ii) Banking Service Commission (Repeal) Bill, 1977
iii) Prevention of Terrorism Bill, 2002
iv) Women’s Reservation Bill (2008)
Prelims questions
2013
1. What will follow if a Money Bill is substantially amended by the Rajya Sabha?
(a) The Lok Sabha may still proceed with the Bill, accepting or not accepting the
recommendations of the Rajya Sabha
(b) The Lok Sabha cannot consider the Bill further
(c) The Lok Sabha may send the Bill to the Rajya Sabha for reconsideration
(d) The President may call a joint sitting for passing the Bill
Ans: (a)
2012
2. A deadlock between the Lok Sabha and the Rajya Sabha calls for a joint sitting of the
Parliament during the passage of-
1. Ordinary Legislation
2. Money Bill
3. Constitution Amendment Bill
Select the correct answer using the codes given below:
(a) 1 only (b) 2 and 3 only
(c) 1 and 3 only (d) 1, 2 and 3
Ans: (c)

3. In the Parliament of India, the purpose of an adjournment motion is

(a) to allow a discussion on a definite matter of urgent public importance.
(b) to let opposition members collect information from the ministers.
(c) to allow a reduction of specific amount in demand for grant.
(d) to postpone the proceedings to check the inappropriate or violent behaviour on the
part of some members.
Ans: (a)

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2011 Student Notes:

4. What is the difference between “vote-on-account” and “interim budget”?
1. The provision of a “vote-on-account” is used by a regular Government, while an
“interim budget” is a provision used by a caretaker Government.
2. A “vote-on-account” only deals with the expenditure in Government’s budget,
while an “interims budget” includes both expenditure and receipts.
Which of the statements given above is/are correct?
(a) 1 only (b) 2 only
(c) Both 1 and 2 (d) Neither 1 nor 2
Ans: (c)
5. When the annual Union Budget is not passed by the Lok Sabha,
(a) The Budget is modified and presented again
(b) The Budget is referred to the Rajya Sabha for suggestions
(c) The Union Finance Minister is asked to resign
(d) The Prime Minister submits the resignation of Council of Ministers
Ans: (d)
6. All revenues received by the Union Government by way of taxes and other receipts for
the conduct of Government business are credited to the
(a) Contingency Fund of India (b) Public Account
(c) Consolidated Fund of India (d) Deposits and Advances Fund
Ans: (c)

7. The authorization for the withdrawal of funds from the Consolidated Fund of India must
come from-
(a) The President of India (b) The Parliament of India
(c) The Prime Minister of India (d) The Union Finance Minister
Ans: (c)
2004
8. With reference to Indian Parliament, which one of the following is not correct?
(a) The Appropriation Bill must be passed by both the Houses of Parliament before it
can be enacted into law
(b) No money shall be withdrawn from the Consolidated Fund of India except under
the appropriation made by the Appropriation Act
(c) Finance Bill is required for proposing new taxes but no another Bill/Act is required
for making changes in the rates of taxes which are already under operation
(d) No Money Bill can be introduced except on the recommendation of the President
Ans: (c)
9. Which one of the following statements is not correct?
(a) In Lok Sabha, a non-confidence motion has to set out the grounds on which it is
based
(b) In the case of a no-confidence motion in Lok Sabha, no conditions of admissibility
have been laid down in the Rules
(c) A motion of no-confidence once admitted, has to be taken up within ten days of
the leave being granted
(d) Rajya Sabha is not empowered to entertain a motion of no-confidence.
Ans: (a)

10. With reference to Indian Public Finance, consider the following statements:
1. Disbursements from Public Accounts of India are subject to the Vote of Parliament.
2. The Indian Constitution provides for the establishment of a Consolidated Fund, a
Public Account and a Contingency Fund for each State.

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3. Appropriation and disbursements under the Railway Budget are subject to the Student Notes:
same form of parliamentary control as other appropriation and disbursements.
Which of the statements given above are correct?
(a) 1 and 2 (b) 2 and 3
(c) 1 and 3 (d) 1, 2 and 3
Ans: (b)
2003
11. Consider the following statements:
1. The joint sitting of the two houses of the Parliament in India is sanctioned under
Article 108 of the Constitution.
2. The first joint sitting of Lok Sabha and Rajya Sabha was held in the year 1961.
3. The second joint sitting of the two Houses of Indian Parliament was held to pass the
Banking Service Commission (Repeal) Bill.
Which of these statements is correct?
(a) 1 and 2 (b) 2 and 3
(c) 1 and 3 (d) 1, 2 and 3
Ans: (d)
All the options given in the Question are correct.
1. Article 108 – Joint sitting of both Houses in certain cases.
2. The First Joint sitting was held on 6 May, 1961, in which Dowry Prohibition Bill,
1960 was passed.
3. The Second Joint sitting was held to pass the Banking Service Commission (Repeal)
Bill, 1977, on 16 May, 1978.
2002
12. Which one of the following Bills must be passed by each House of the Indian Parliament
separately, by special majority?
(a) Ordinary Bill (b) Money Bill
(c) Finance Bill (d) Constitution Amendment Bill
Ans: D

11. Rajya Sabha

11.1. Historical Evolution and rationale behind creation of the
Second Chamber
The nomenclature ‘Council of States’ also known as Rajya Sabha, was announced on 23rd
August, 1954. The origin of the second Chamber can be traced to the Montague-Chelmsford
Report of 1918. The Government of India Act, 1919 provided for the creation of a ‘Council of
State’ as a second chamber of the then legislature with a restricted franchise which actually
came into existence in 1921. The Governor General was the ex-officio President of the then
Council of State. The Government of India Act, 1935, hardly made any changes in its
composition.
In independent India, the Central Legislature which was known as Constituent Assembly
(Legislative) and later Provisional Parliament was unicameral till the first elections were held in
1952. It was decided to have a bicameral legislature for independent India primarily because a
federal system was considered to be most feasible form of Government for such a vast and
diverse country. It was considered that a single directly elected House would be inadequate to
meet the challenges facing free India. Therefore, a second chamber known as the ‘Council of
States’ was created. It was thought of as another Chamber, with smaller membership than the
Lok Sabha. It was meant to be the federal chamber i.e., a House elected by the elected
members of Assemblies of the States and Union Territories with a legislature alongside some
nominated members.

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11.2. Role of Rajya Sabha Student Notes:

i) Revising Chamber: Rajya Sabha has a special role to play as a revising Chamber. Though
there have not been many revisions, yet there is always a possibility of revision as a result
of second sober thought. In our parliamentary system, Rajya Sabha has the authority to
discuss and reasonably delay legislation. As a Second Chamber, it has the mandate to
secure a second sober look at hasty legislation.
ii) Federal Chamber: Another significant role of the Rajya Sabha was guided by the need for
giving representation to the states in the federal legislature. Rajya Sabha is a federal
Chamber where the representatives of each state are elected by the elected members of
the Legislative Assembly of the state. As a federal Chamber, it has been assigned some
special powers, impacting federal interests. The Rajya Sabha being the representative
forum of the States endeavors to remain ever concerned and sensitive to the aspirations of
the states. In the process, it strengthens the country’s federal fabric and promotes national
integration.
iii) Deliberative Chamber: The prime role of the Rajya Sabha as a deliberative Chamber has
been reinforced by the provision of nomination to the Rajya Sabha of 12 Members noted
for their contribution to literature, science, art and social service. The high traditions of
debates and discussions in the House have guided the Members of Rajya Sabha not only to
hold informed debates on public issues but also to endeavor to make proceedings relevant
to public welfare.
iv) Chamber of Continuity: Rajya Sabha is a permanent Chamber, not subject to dissolution
and one-third of its Members retire every second year. The hallmark of the Rajya Sabha is
the principle of continuity as a perpetual House and as a continuous institution in the
parliamentary framework. A scheme of having a Chamber of legislative continuity was
needed in a parliamentary system to meet the legislative and constitutional contingency at
a time when the popularly elected House may be under dissolution or in the process of
reconstitution after election. A Bill which is pending in the Rajya Sabha and has not been
passed by the Lok Sabha, will not lapse on the dissolution of the Lok Sabha. Thus, the
continuity of the Rajya Sabha ensures a significant measure of legislative continuity.
v) Chamber not concerned with Government formation: The Government of the day is
collectively responsible to the House of People, the directly elected House. Rajya Sabha
being an indirectly elected House has no role in the making or unmaking of the
Government. Since the Governments are not formed, nor do they fall on the basis of the
numerical strength of the Rajya Sabha, this Chamber is relatively free from the
compulsions of competitive party politics. While it is often argued that since Rajya Sabha
cannot bring down a Government, its role is limited in a political perspective. Nevertheless,
the Rajya Sabha has played a significant role in contributing to the national discourse in full
measure.
vi) Effective Smaller Chamber: Rajya Sabha is comparatively a smaller Chamber than the Lok
Sabha given its maximum strength is lesser than the Lok Sabha. Being a smaller House, it
affords opportunities for close camaraderie and greater consensus-building among the
Members. Spirit of accommodation and adjustment among the Members, across party
lines, contribute to the effectiveness of this House. It also helps in better time
management of the House, besides discussions on wide ranging issues.
vii) Chamber Securing Executive Accountability: Rajya Sabha, as a constituent part of
Parliament, has been securing executive accountability through its various committees. At
present, there are 24 Department-related Parliamentary Standing Committees in the
Parliament, out of which eight are functioning under the direction and control of the
Chairman, Rajya Sabha. The constructive criticism and considered recommendations made
by such Committees have been found to be useful by the Ministries and Departments
concerned to tone up their functioning and to formulate realistic budgets, plans and

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programs for the welfare of the people. These Committees have considered some of the Student Notes:
important legislations and presented reports thereon to both Houses of Parliament.
viii) Chamber of Ventilating Public Grievances: Rajya Sabha reflects the problems faced by
different states. Its Members, being the representatives of states, articulate the concerns
of respective states and their people. Through procedural devices such as Questions,
Calling Attention, Special Mentions, Short Duration Discussion, Half-an-Hour Discussion,
Motions, Resolutions, etc., it has raised issues of public importance, focused attention on
matters affecting policies of the Government and provided a forum for ventilation of public
grievances. Through these devices, it has managed not only to elicit information but also
put pressure on the Government to reorient its policies for serving larger public interests.

11.3. Comparison of Lok Sabha with Rajya Sabha

11.3.1. Equal Powers in relation to Lok Sabha
There are some important matters in respect of which the Constitution has placed both Houses
of Parliament on an equal footing as may be seen from the following list:
a) Equal right with the Lok Sabha in the election and impeachment of the President (Arts. 54
and 61).
b) Equal right with the Lok Sabha in the election and removal of the Vice-President (Art. 66).
However Rajya Sabha alone can initiate the removal of the Vice-President. He is removed
by a resolution passed by the Rajya Sabha by a special majority and agreed to by the Lok
Sabha by a simple majority
c) Equal right with the Lok Sabha to make law defining parliamentary privileges and also to
punish for contempt (Art. 105).
d) Equal right with the Lok Sabha to approve the Proclamation of Emergency (issued under
Art. 352), Proclamations regarding failure of the Constitutional machinery in States (issued
under Art. 356) and even a sole right in certain circumstances.
e) Enlargement of the jurisdiction of the Supreme Court and the UPSC.
f) Approval of ordinances issued by the President.
g) Equal right with the Lok Sabha to receive reports and papers from various statutory
authorities, namely:
a. Annual Financial Statement [Art. 112(1)];
b. Audit Reports from the Comptroller and Auditor General of India [Art. 151(1)];
c. Reports of the Union Public Service Commission. [Art. 323(1)];
d. Reports of the Special Officer for the Scheduled Castes and Scheduled Tribes [Art.
338(2)];
e. Report of the Commission to investigate the conditions of the Backward Classes [Art.
340(3)];
f. Report of the Special Officer for Linguistic Minorities [Art. 350 B(2)].
11.3.2. Unequal status with Lok Sabha
In comparison with certain matters where Rajya Sabha enoys coequal powers with Lok Sabha,
there are matters where it does not enjoy the same status as the lower house. For instance:
a) A Money Bill can be introduced only in the Lok Sabha and not in Rajya Sabha.
b) Rajya Sabha cannot amend or reject a Money Bill. It should return the bill to the Lok Sabha
within 14 days with or without recommendations.
c) The Lok Sabha can either accept or reject all or any of the recommendations of the Rajya
Sabha. In both cases, the Money Bill is deemed to have been passed by the two Houses.
d) A Financial Bill, not containing solely the matters of Article 110, also can be introduced only
in the Lok Sabha and not in the Rajya Sabha. But, with regard to its passage, both have
equal powers.
e) The final power to decide whether a particular Bill is a Money Bill is vested in the Speaker of
the Lok Sabha.

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f) The Speaker of Lok Sabha presides over the joint sitting of both the Houses. Student Notes:
g) The Lok Sabha with greater number wins the battle in a joint sitting except when the
combined strength of the ruling party in both Houses is less than that of opposition parties.
h) Rajya Sabha can only discuss the budget but cannot vote on the demands for grants.
i) A resolution for the discontinuance of the national emergency can be passed only by the
Lok Sabha and not by the Rajya Sabha
j) The Rajya Sabha cannot remove the Council of Ministers by passing a no-confidence
motion. This is because the Council of Ministers is collectively responsible only to the Lok
Sabha.
11.3.3. Special Powers of Rajya Sabha
Apart from the coordinate powers it enjoys with the Lok Sabha, the Constitution vests some
special powers in the Rajya Sabha to exercise its federal mandate as it represents States and
Union territories in Parliament. Such special powers lend credence to its status as an Upper
House vis-à-vis the Lok Sabha.
a) Legislation on State matters: As a federal chamber, it can initiate Central intervention in the
State Legislative field. Article 249 of the Constitution provides that the Rajya Sabha may
pass resolution, by a majority of not less than two-thirds of the Members present and
voting, to the effect that it is necessary or expedient in the national interest that Parliament
should make laws with respect to any matter enumerated in the State List. If such a
resolution is adopted, Parliament will be authorized, to make laws on the subject specified
in the resolution, for the whole or any part of the territory of India. Such a resolution
remains in force for a maximum period of one year but this period can be extended by one
year at a time by passing a similar resolution further.
b) Creation of All India Services: Another exclusive power of the Rajya Sabha is contained in
Article 312 of the Constitution wherein if the Rajya Sabha passes a resolution by a majority
of not less than two-thirds of the members present and voting declaring that it’s necessary
or expedient in the national interest to create one or more All India Services common to the
Union and the States, Parliament will have the power to create by law such services.
c) Approval of Proclamation: Under the Constitution, the President is empowered to issue
Proclamations in the event of national emergency, in the event of failure of constitutional
machinery in a State, or in the case of financial emergency. Every such proclamation has to
be approved by both Houses of Parliament within a stipulated period. Under certain
circumstances, however, Rajya Sabha enjoys special powers in this regard. If a Proclamation
is issued at a time when Lok Sabha has been dissolved or the dissolution of Lok Sabha takes
place within the period allowed for its approval, then the proclamation remains effective, if
the resolution approving it is passed by Rajya Sabha within the period specified in the
Constitution under articles 352, 356 and 360.
Prelims questions
2012
1. Which of the following special powers have been conferred on the Rajya Sabha by the
Constitution of India?
(a) To change the existing territory of a State and to change the name of a State.
(b) Topass a resolution empowering the Parliament to make laws in the State List and
to create one or more All India Services.
(c) To amend the election procedure of the President and to determine the pension of
the President after his/her retirement
(d) To determine the functions of the Election Commission and determine the number
of Election Commissioner
Ans: (b)

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12. Parliamentary Committees Student Notes:

The Parliament cannot give close attention to all the legislative and other matters before it. This
is owing to the varied, complex and voluminous nature of the work. Hence, part of its work is
transacted in Committees of the House, known as Parliamentary Committees. Parliamentary
Committee means a Committee which
i) Is appointed or elected by the House or nominated by the Speaker/Chairman
ii) Works under the direction of Speaker/Chairman
iii) Presents its report to the House or to the Speaker/Chairman
iv) Has a secretariat provided by the Lok Sabha/Rajya Sabha Secretariat
Both Houses of Parliament have a similar committee structure, with a few exceptions. The
appointment, terms of office, functions and procedure of conducting business are regulated as
per rules made by the two Houses under Article 118(1) of the Constitution.
By their nature, Parliamentary Committees are of two kinds:
• Standing 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. The work of these Committees is of
continuous nature. Among the Standing Committees, the three Financial Committees i.e.
Committees on Estimates, Public Accounts and Public Undertakings keep a tight eye over
Government expenditure and performance. While members of the Rajya Sabha are
associated with Committees on Public Accounts and Public Undertakings, the members of
the Committee on Estimates are drawn entirely from the Lok Sabha. Besides the three
Financial Committees, there are 24 Department Related Standing Committees (DRSCs).
• Ad hoc Committees: These are appointed for a specific purpose and they cease to exist
when they finish the task assigned to them and submit a report. Ad hoc committees can be
further divided into two categories:
o Committees which are constituted from time to time, by either of the two Houses on a
motion adopted in that behalf or by Speaker/Chairman to inquire into and report on
specific subjects. E.g., Committees on the Conduct of certain Members during
President's Address, Committee on Members of Parliament Local Area Development
Scheme etc.
o Select or Joint Committees on Bills which are appointed to consider and report on a
particular Bill. These Committees are distinguishable from the other ad hoc committees
to the extent that they are concerned with Bills and the procedure to be followed by
them as laid down in the Rules of Procedure and Directions by the Speaker/Chairman.
Joint Parliamentary Committees are set up by a motion passed in one House and
agreed to by the other House.

12.1. Important Parliamentary Committees

12.1.1. Public Accounts Committee
This Committee consists of 15 members elected by the Lok Sabha and 7 members of the Rajya
Sabha are associated with it. A Minister is not eligible for election to this Committee. The term
of the Committee is one year. The main duty of the Committee is to ascertain whether the
money granted by Parliament has been spent by the Government "within the scope of the
Demand". The Appropriation and Finance Accounts of the Government of India and the Audit
Reports presented by the Comptroller and Auditor General mainly form the basis for the
examination of the Committee. Cases involving losses, nugatory expenditure and financial
irregularities come in for severe criticism by the Committee. The Committee is not concerned
with questions of policy. It is concerned only with the execution of the policy laid down by
Parliament and its results.

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12.1.2. Estimates Committee Student Notes:

This Committee consists of 30 members who are elected by the Lok Sabha every year from
amongst its members. A Minister is not eligible for election to this Committee. The term of the
Committee is one year. The main function of the Committee on Estimates is to report what
economies, improvements in organization, efficiency, or administrative reform, consistent with
the policy underlying the estimates may be effected and to suggest alternative policies in order
to bring about efficiency and economy in administration. From time to time the Committee
selects such of the estimates pertaining to a Ministry or a group of Ministries or the statutory
and other Government bodies as may seem fit to the Committee. It examines whether the
money is well laid out within the limits of the policy implied in the estimates and suggests the
form in which the estimates shall be presented to Parliament. The Committee also examines
matters of special interests which may arise or come to light in the course of its work or which
are specifically referred to it by the House or the Speaker.
12.1.3. Committee on Public Undertakings
The Committee on Public Undertakings consists of 15 members elected by the Lok Sabha and 7
members of Rajya Sabha are associated with it. A Minister is not eligible for election to this
Committee. The term of the Committee is one year. The functions of the Committee on Public
Undertakings are:
1. To examine the reports and accounts of Public Undertakings.
2. To examine the reports, if any, of the Comptroller and Auditor General on the Public
Undertakings.
3. To examine in the context of the autonomy and efficiency of the Public Undertakings
whether the affairs of the Public Undertakings are being managed in accordance with
sound business principles and prudent commercial practices.
4. Such other functions vested in the Committee on Public Accounts and the Committee on
Estimates in relation to the Public Undertakings as are not covered by clauses (1), (2) and
(3) above and as may be allotted to the Committee by the Speaker from time to time. The
Committee does not, however, examine matters of major Government policy and matters
of day-to-day administration of the Undertakings.
12.1.4. Business Advisory Committee
It regulates the program and timetable of the House. It allocates time for the transaction of
legislative and other business brought before the House by the government. It recommends the
time that should be allocated for the discussion of the stage or stages of such Government Bills
and other business as the Chairman in consultation with the Leader of the House may direct for
being referred to the Committee. The Committee may also indicate in the proposed time-table
the different hours at which the various stages of the Bill or other business are to be completed.
All proposals for late sittings of the House, dispensing with the Question Hour or lunch hour,
extension of sittings of the House beyond the normal hours of adjournment and fixing
additional sittings/cancellation of sittings are placed before the Committee for its
recommendation. The Lok Sabha committee consists of 15 members including the Speaker as
its chairman. In the Rajya Sabha, it has 11 members with the Chairman as its ex-officio
chairman.
12.1.5. Departmentally Related Standing Committees
A full-fledged system of 17 Department Related Standing Committees came into being in April
1993. In 2004, the number of DRSC’s was raised to 24. These Committees cover under
their jurisdiction all the Ministries/Departments of the Government of India. These Committees
are as under:
1. Committee on Chemicals and Fertilizers
2. Committee on Coal and Steel

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3. Committee on Health and Family Welfare Student Notes:

4. Committee on Information Technology
5. Committee on Personnel, Public Grievances, Law and Justice
6. Committee on Social Justice and Empowerment
7. Committee on Commerce
8. Committee on Home Affairs
9. Committee on Human Resource Development
10. Committee on Industry
11. Committee on Science & Technology, Environment & Forests
12. Committee on Transport, Culture and Tourism
13. Committee on Agriculture
14. Committee on Defence
15. Committee on Energy
16. Committee on External Affairs
17. Committee on Finance
18. Committee on Food, Civil Supplies and Public Distribution
19. Committee on Labor
20. Committee on Petroleum & Natural Gas
21. Committee on Railways
22. Committee on Rural Development
23. Committee on Urban Development
24. Committee on Water Resources
Constitution: Till 13th Lok Sabha, each of these Standing Committees used to consist of 45
members-30 nominated by the Speaker from amongst the members of Lok Sabha and 15
members nominated by the Chairman from amongst the members of Rajya Sabha. But with
restructuring of DRSCs in July, 2004 each DRSC now consists of 31 members-21 from Lok Sabha
and 10 from Rajya Sabha. A Minister is not eligible to be nominated to these Committees.
Term of Office: The term of members of these Committees is one year.
Functions: With reference to the Ministries/Departments under their purview, the functions of
these committees are:
i) Consideration of Demands for Grants.
ii) Examination of Bills referred to by the Chairman, Rajya Sabha or the Speaker, Lok Sabha as
the case may be.
iii) Consideration of Annual Reports.
iv) Consideration of national basic long-term policy documents presented to the House and
referred to the Committee by the Chairman, Rajya Sabha or the Speaker, Lok Sabha, as the
case may be.
These Committees do not consider matters of day-to-day administration of the concerned
Ministries/Departments. With the emphasis of their functioning to concentrate on long-term
plans, policies and the philosophies guiding the working of the Executive, these Committees are
in a very privileged position to provide necessary direction, guidance and inputs for broad
policy formulations and in achievement of the long-term national perspective by the Executive.
Importance of Parliamentary Committees
• The main purpose behind setting up these committees is to ensure the accountability of
Government to Parliament through more detailed consideration of measures in these
Committees.
• These Committees have had an important impact on the general toning up of debates and
efficiency of functioning of Parliamentary system.

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• They offer an opportunity to the members of the House to have glimpse into the working of Student Notes:
Governments and understand the practical problems and constraints.
• Committees help with this by providing a forum where Members can engage with domain
experts and government officials during the course of their study. For example, the
Committee on Health and Family Welfare studied the Surrogacy (Regulation) Bill,
2016 which prohibits commercial surrogacy, but allows altruistic surrogacy. This helps them
gain expertise and specialisation about the subjects dealt with by the Committees, which in
turn is bound to result in elevating the standard of debate on the floor of the House.
• Committees also provide a forum for building consensus across political parties. The
proceedings of the House during sessions are televised, and MPs are likely to stick to their
party positions on most matters. Committees have closed door meetings, which allows
them to freely question and discuss issues and arrive at a consensus.
• Parliamentary committees investigate issues and bills proposed so that the Parliament can
be well informed before making a decision of national importance.
• It increases the ability of Parliament to scrutinize government policies and make it
accountable
• The committees can make recommendations and amendments to the bill. These are not
binding on the Parliament.
• In the past, we have seen that scrutiny by committees has helped resolve significant issues
in Bills. For instance, the Prevention of Corruption Amendment Bill which has been pending
in the Rajya Sabha since 2013. The Bill has been examined by two parliamentary committees
and has gone through a number of iterations. This has resulted in significant issues in the Bill
getting addressed.
Concerns related to their functioning
While Committees have substantially impacted Parliament’s efficacy in discharging its roles,
there is still scope for strengthening the Committee system. The rules do not require all Bills to
be examined by a Committee. This leads to some Bills being passed without the advantage of a
Committee scrutinising its technical details. Recently, there has been a declining trend in the
percentage of Bills being referred to a Committee. In the 16th Lok Sabha, DRSCs examined 41
Bills, 331 Demands for Grants, 197 issues, and published 503 Action Taken Reports. In the
15th Lok Sabha, 71% of the Bills introduced were referred to Committees for examination, as
compared to 27% in the 16th Lok Sabha. So far in the 17th Lok Sabha no Bill has been referred to
a Committee yet. This raises concern over the diminishing importance of parliamentary
committees and whether proper deliberations are taking place before the passage of various
bills.
Prelims questions
2007
1. Consider the following statements:
1. The Chairman of the Committee on Public Accounts in appointed by the Speaker of
the Lok Sabha.
2. The Committee on Public Accounts comprises Members of Lok Sabha, Members of
Rajya Sabha and a fe eminent persons of industry and trade.
Which of the statements given above is/are correct?
(a) 1 only (b) 2 only
(c) Both 1 and 2 (d) Neither 1 nor 2
Ans: (a)
2013
2. Consider the following statements-
The Parliamentary Committee on Public Accounts.
1. Consists of not more than 25 Members of the Lok Sabha.

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2. Scrutinizes appropriation and finance accounts of the Government. Student Notes:

3. Examines the report of the Comptroller and Auditor General of India.
Which of the statements given above is/are correct?
(a) 1 only (b) 2 and 3 only
(c) 3 only (d) 1, 2 and 3
Ans: (d)

13. Parliamentary Privileges

Parliamentary privileges are the rights and immunities provided by the Constitution to both
Houses collectively and their members individually, without which they cannot discharge their
functions. Both the Houses of Parliament as well as of State Legislature have similar privileges
under the Constitution. These privileges protect the freedom of speech of legislators and
insulate them against litigation over matters that occur in these houses. Without these
privileges the house can neither maintain their authority, dignity and honour nor can protect
their members from any obstruction in discharge of their duties.
Arts. 105 and 194 of our Constitution deal only with two matters, namely, freedom of speech
and right of publication.
After the 44th Amendment of 1978, the position with regards to privileges relating to other
matters is as follows:
i) The privileges of MPs were to be same as those of members of the House of Commons (as
they existed at the commencement of the Constitution), until out Parliament itself takes up
legislation relating to privileges.
ii) Since no such legislation is made by the Parliament, the privileges are same as in House of
Commons subject to such exceptions, which are necessary due to difference in
constitutional setup. Reference to House of Commons was omitted in 1978.
In an earlier case, the Supreme Court held that if there was any conflict between the existing
privileges of Parliament and the Fundamental rights of a citizen, the former shall prevail. For
instance, if the House of a Legislature expunges a portion of its debates from its proceedings, or
otherwise prohibits its publication, anybody who publishes such prohibited debate will be guilty
of contempt of Parliament and punishable by the House and Fundamental Right of freedom of
expression [Art. 19(1)(a)] will be no defence. However, in a later case, the Supreme Court has
held that though the existing privileges would not be fettered by Art 19(1)(a), they must be
read subject to Arts. 20-22 and 32.
Furthermore, it stated that immunity or protection against criminal prosecution to the
members is available only in regard to their official activities and not for acts done in their
personal capacity.
Parliamentary privileges can be classified into two broad categories:

13.1. Individual Privileges

These are the privileges enjoyed by the members individually. These are as follows:
a. Freedom from arrest: The members cannot be arrested during a session of Parliament or a
meeting of a committee and 40 days before the beginning and 40 days after the end of a
session. This immunity is however confined to arrest in civil cases and does not extend to
arrest in a criminal case or under the law of Preventive Detention.
b. Freedom of Attendance as Witness: In accordance with the English practice, a member
cannot be summoned without the leave of the House to give evidence as a witness while
the Parliament is in the session.
c. Freedom of Speech: A Member of Parliament cannot be made liable in any court of law in
respect of anything said in Parliament or any committee thereof. This freedom is however

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subject to the rules framed by the House under its powers to regulate its internal Student Notes:
procedure. Further the Constitution also imposes another restriction, namely, that no
discussion shall take place in the Parliament with respect to conduct of any Judge of the
Supreme Court or of a High Court in the discharge of his duties (except when a motion for
removal of the Judge is under consideration).

13.2. Collective Privileges

The collective privileges of the House are:
a. The right to publish debates and proceedings and the right to restrain publication by others.
The 44th Amendment Act, 1978 restored the freedom of press to publish true reports of
parliamentary proceedings without prior permission of the House. But this is not applicable
in case of a secret sitting.
b. The right to exclude others from its proceedings. Under the Rules of Procedure, the Speaker
and the Chairman have the right to order the withdrawal of strangers from any part of the
House.
c. The right to regulate the internal affairs of the House and to decide matters arising within
its walls. What is said or done within the walls of the Parliament cannot be inquired into in
a Court of Law
d. The right to punish members and outsiders for breach of its privileges.
e. No person can be arrested, and no legal process served within the precincts of the House
without the permission of the presiding officer.

13.3. Breach of Privilege and Contempt of the House

When any of the privileges either of the members individually or of the House in its collective
capacity are disregarded or attacked by any individual or authority, the offence is called a
`breach of privilege'.
Among other things, any action ‘casting reflections’ on MPs, parliament or its committees;
could be considered breach of privilege. This may include publishing of news items, editorials or
statements made in newspaper/magazine/TV interviews or in public speeches.
Contempt of the House may be defined generally as "any act or omission which obstructs or
impedes either House of Parliament in the performance of its functions, or which obstructs or
impedes any member or officers of such House in the discharge of his duty, or which has a
tendency, directly or indirectly, to produce such results.
While all breaches of privilege constitute contempt of the House, a person may be guilty of a
contempt of the House even though he does not violate any of the privilege of the House, e.g.
when he disobeys an order to attend a committee or publishes reflections on the character or
conduct of a member in his capacity as a member.
There have been several such cases. In 1967, two people were held to be in contempt of Rajya
Sabha, for having thrown leaflets from the visitors’ gallery.
In 1983, one person was held in breach for shouting slogans and throwing chappals from the
visitors’ gallery.
Committee on Privileges: This is a standing committee constituted in each house of the
Parliament/state legislature. This Committee consists of 15 members in Lok Sabha (LS) and 10
members in Rajya Sabha (RS) to be nominated by the Speaker in LS and Chairman in RS,
respectively.
Its function is to examine every question involving breach of privilege of the House or of the
members of any Committee thereof referred to it by the House or by the Speaker. It determines
with reference to the facts of each case whether a breach of privilege is involved and makes
suitable recommendations in its report.

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13.4. Punishment in case of breach of privilege or contempt of the Student Notes:

House
The house can ensure attendance of the offending person. The punishment may take the form
of admonition, reprimand or imprisonment. For instance, in 2008, an editor of an Urdu weekly
referred to the deputy chairman of Rajya Sabha as a “coward” attributing motives to a decision
taken by him. The privileges committee held the editor guilty of breach of privilege.

14. Sovereignty of Parliament

The doctrine of sovereignty of Parliament is associated with the British Parliament.
Parliamentary sovereignty (also called parliamentary supremacy or legislative supremacy) is a
concept in the constitutional law of some parliamentary democracies. It holds that
the legislative body has absolute sovereignty, and is supreme over all other government
institutions, including executive or judicial bodies. There are no ‘legal’ restrictions on the
authority and jurisdiction of British Parliament. The Indian Parliament, on the other hand
cannot be regarded as a sovereign body in the similar sense as there are ‘legal’ restrictions on
its authority and jurisdiction. The factors that limit the sovereignty of Indian Parliament are:
i) Written Nature of the Constitution: The Constitution is the fundamental law of the land in
our country. The parliament has to operate within the prescribed limits of the Constitution.
ii) Federal System of Government: India has a federal system of government with a
constitutional division of powers between the Union and the States. Both have to operate
within the spheres allotted to them. Hence, the law-making authority of the Parliament
gets confined to the subjects enumerated in the Union List and Concurrent List and does
not extend to the subjects enumerated in the State List (except in certain exceptional
circumstances).
iii) System of Judicial Review: The adoption of an independent judiciary and the system of
judicial review has also restricted the supremacy of the Parliament. Both the Supreme
Court and the High Courts can declare the laws enacted by Parliament as void and ultra
vires, if they contravene any provision of the Constitution.
iv) Fundamental Rights: The authority of Parliament is also restricted by the incorporation of
a code of justiciable Fundamental Rights under Part III of the Constitution. Article 13
prohibits the State from making a law that either takes away totally or abrogates in part a
fundamental right. Hence, a parliamentary law that contravenes the fundamental rights
shall be void.

15. Functions, Role and Issues concerning Parliament

Our constitution has adopted a Parliamentary System of Government. Under such a system
there is a curious mixture of the legislative and executive organs of the state. While discussing
the functions of Parliament this aspect should always be borne in mind. To begin with the
Parliament provides the Council of Ministers to run the administration of the State and holds it
responsible. The membership, of the Council of Ministers is drawn from the two chambers of
the Parliament.

15.1. Functions and Roles of the Parliament

i) Controlling the Executive: A very significant function of Parliament is to exercise its control
on the Council of Ministers by way of holding it responsible for its acts of omissions and
commissions. Article 75(3) expressly states that the Council of Minister remains in office,
so long as it enjoys the confidence of the Lok Sabha. The Parliament exercises the control
by asking question to the ministers through its members, by raising adjournment motions,
cut motions, censure motions or debates. More importantly the Lok Sabha can pass a vote
of no confidence against the Council of Ministers, which compels it to resign collectively.

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Thus the parliament holds the ministers responsible individually and collectively. This Student Notes:
critical function of the Parliament ensures a responsive and responsible government.
ii) Law Making: Law making is the primary function of any legislature. The Parliament of India
makes law on all matter included in the Union list and concurrent list (of course the state
legislatures share with the parliament the power to make law from the concurrent list with
its prior permission.) However under certain special circumstances the Parliament can
make law for the states also. The special circumstances are
a. Promulgation of Emergency.
b. A resolution passed by Rajya Sabha with special majority asking to make law for the
states in the national interest, which can remain valid for one year.
c. A resolution by two or three states urging upon the Parliament to make law for them
on certain items of the State list.
d. If there is any international treaty or agreement is to be executed.
e. When President’s Rule is in operation in a State. An ordinary bill is initiated in either
House of Parliament.
iii) Controlling the Finance: The Parliament, particularly, the Lok Sabha exercises substantial
functions in the domain of finance. The legislature of any responsible system of
Government has to ensure that public funds are raised and spent with its consent and
control. The Constitution of India has armed the union Parliament more particularly the
Lok Sabha to exercise greater control over the National finance:
• The executive or the Government of the nation has no authority to spend any money
on its own without the approval of the Parliament.
• Every financial year, the budget prepared by the Finance Minister is presented in the
Lok Sabha for its approval.
• Any proposal for levying new taxes or any proposal for expenditure needs the sanction
of the Parliament.
• There are also two very important Committee of the Parliament known as Public
Accounts Committee and the Estimates Committee, and Comptroller and Auditor
General, a Constitutional authority appointed by the President who examines the
legality of expenditure and places a report for discussion in the Parliament.
However it may be noted that Lok Sabha enjoys the exclusive power to control the national
finances. The Rajya Sabha has no role to play in such a field.
iv) Deliberations: As an organ of information the Parliament has a formidable role to play. All
the important administrative policies are discussed on the floors of the Parliament. So the
Cabinets not only gets the advice of the Parliament and learns about its lapses, but the
nation as a whole is enlightened about serious matters of public importance. This
undoubtedly contributes to the growth of political consciousness on the part of the
people.
v) Constituent Functions: Parliament is the only body, under the constitution, to initiate any
proposal for amendment of the constitution. A proposal for amendment can be initiated in
either House of Parliament. The bulk of such proposals are approved finally when passed
by both the chambers with special majority of two-thirds of its members. However some
provisions require the approval of at least half of the states after they are passed by the
Parliament with required majority.
vi) Electoral Functions: The Parliament has some electoral functions to perform. It takes part
in the election of the President and the Vice-President of India. It also elects various
members to its committees, and the presiding officers and Deputy presiding officers.
vii) Judicial Functions: The judicial functions of the Parliament are no less significant. It has the
power to impeach the President, the Vice-President, the judges of the Supreme Court and
the High Court, the Chairman and members of the Public Service Commissions’ of the
Union and the States as well, the Comptroller and Auditor General. It can also punish its
members and officials for its contempt. This power is not subject to review of the court.

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15.2. Issues concerning Indian Parliament Student Notes:

• Reduction in the number of sittings: The 16th Lok Sabha worked for a total number of 1,615
hours, 20% more than the 15th Lok Sabha. However, this is 40% lower than the average of
all full term Lok Sabhas (2,689 hours). Furthermore, there has been a general decline in the
number of sitting days. The 16th Lok Sabha sat for 331 days in comparison with an average
of 468 days for previous full term Lok Sabhas.
• Discipline and decorum: There have been increased instances of interruptions and
disruptions leading sometimes even to adjournment of the proceedings of the House. This,
not only, results in the wastage of time of the House but also affects adversely the very
purpose of Parliament. The 16th Lok Sabha lost 16% of its scheduled time to disruptions,
while in the same period, the Rajya Sabha lost 36% of its scheduled time.
• Declining quality of parliamentary debates: Parliamentary debates, which once focussed
on national and critical issues, are now more about local problems, viewed from a parochial
angle.
• Low representation of women: Although, women’s representation has steadily increased in
the Lok Sabha, only 5% of the House in the first-ever election to 14% in the 17th Lok Sabha,
this is still inadequate when compared to democracies like U.S. that has 32% and
Bangladesh with 21% women members. Of the 543 constituencies in 2019, about half
(48.4%) have never voted a woman MP since 1962.
• Inadequate Discussion: Bills are being passed with no/minimum discussion and by voice
vote amidst pandemonium in the House. In the 16th Lok Sabha, 32% of the Bills were
discussed for more than three hours vis-a-vis previous two Lok Sabhas (22% and 14% in the
15th and 14th Lok Sabha respectively). It must be highlighted that the bills passed within 30
minutes have decreased significantly from 26% in the 15th Lok Sabha to 6% in the 16th Lok
Sabha.
• Reduced Scrutiny by Parliamentary Committees: Although more Bills have been discussed
for longer, this Lok Sabha has referred a significantly lower proportion of Bills to
Committees for scrutiny. In the 16th Lok Sabha, 25% of the Bills introduced were referred to
Committees, much lower than 71% and 60% in the 15th and 14th Lok Sabha respectively.
• Legislation through Ordinances: The Constitution confers upon the President the power to
promulgate an Ordinance at a time when both Houses of the Parliament are not in Session
and on being satisfied that circumstances exist rendering it necessary for him to take
immediate action. However, there has been an over issuance of frequent and large number
of Ordinances even when there exist no urgency or exceptional circumstances.
• Codifying Parliamentary Privileges: Parliamentary privileges have not been codified leading
to uncertainty and anxiety over their misuse.

15.3. Implications of poor functioning of Parliament

• Lack of accountability of the government: If the parliament doesn’t function properly, it
can not hold the government accountable for its actions.
• Low productivity: Disruptions and reduced number of sittings lead to lesser workforce
productivity of both Houses. For instance, productivity for Lok Sabha in the 2016 winter
session was 14%, while that of the Rajya Sabha was 20%.
• Cost to the Public Exchequer: Certain legislations when delayed lead to high cost to public
exchequer and also bear a huge cost to society. E.g. It is estimated that the delay in passing
the GST Bill cost the nation 4% of GDP.
• Legislative Vacuum: Delay in policy making creates a legislative gap which is then filled with
other bodies in a direct assault on the doctrine of Separation of Powers.
• Declining faith in democratic process: Parliament as an institution becomes less relevant
for national policy making.

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15.4. Suggested Parliamentary Reforms Student Notes:

1. Nodal Standing Committee on Economy: The National Commission to Review the Working
of the Constitution (NCRWC) has recommended establishing a Nodal Standing Committee
on Economy to oversee major issues of fiscal, monetary, financial, and industrial and trade
policies in an integrated manner. It suggested that internal groups of the Committee would
evaluate performance against physical targets and draft reports, which would together be
presented as an annual report to Parliament, by the Committee.
2. Building a better image of Parliament: It is necessary to establish a new rapport between
the people and the Parliament. Parliament must have access to public opinion and public
must have access to Parliament. If corruption is suspected inside the portals of legislatures,
the press and the public must be free to question it and expose it without being
threatened under the law of parliamentary privileges.
3. Improving the quality of Members: It is the primary duty of every Parliamentarian to
maintain and project a good image of Parliament by his conduct both inside and outside
the House. Every member must be imbued with a sense of purpose and responsibility.
Members of important parliamentary committees need to lay down a strict code of
conduct for themselves.
4. Reducing expenditure: There is a need to drastically slash parliamentary spending under
various heads. Strictest self-control is necessary because parliamentary budget, by
convention, is not questioned or debated. A strict limit needs to be placed on the number
of Ministers and equivalent posts both at the Union level and in the States.
5. Improving information supply: Members of the Parliament must remain up to date with
the latest information in regard to developments in all areas of parliamentary concern. The
Parliament must build its own independent national information reservoir with a network
of feeding and retrieval points. Some of the modern tools and techniques like briefing by
experts, audio-visual aids, practice oriented studies etc can be used.
6. Planning Legislation and improving its Quality: Legislation in the Indian Parliament has
often been criticized for hasty drafting and for being rushed through Parliament in an ad
hoc and haphazard manner. There is need for a dynamic approach to legislative
engineering and systematic programming of laws. This can be done by streamlining the
functions of the Parliamentary and Legal Affairs Committee, making greater use of the Law
Commission etc.
7. Setting up a Constitution Committee: While executive power of the Union is co-extensive
with its legislative power, the constituent power under the Constitution belongs exclusively
to Parliament. The responsibility of Parliament therefore becomes much greater in the
case of Constitution (Amendment) Bills. The proposed involvement of Parliament and
scrutiny can be achieved through a novel device in form of a Constitution Committee of
Parliament.
8. Departmental Committees and Improving Accountability: These Committees strengthen
the Government by providing valuable insights into its own working, providing sharper and
more effective surveillance tools and restoring the balance between Parliament’s
legislative and deliberative functions and its role as a representational body. They also save
valuable parliamentary time to the advantage both of Parliament and the Government.
However, if the Subject/Ministry based Standing Committees have to have a real meaning
and fulfill the purposes for which they were conceived and not to become merely part of a
spoils system and distribution of perks and benefits.
9. Codifying Parliamentary Privileges: These privileges should not be allowed to be used in
such a manner as to nullify themselves and become rights against the people. The specific
parliamentary privileges which may be deemed to be in conformity with contemporary
thinking and absolutely necessary for the free and independent functioning of the
institution of Parliament should be clearly defined, delimited and simplified.

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 STATE LEGISLATURE Student Notes:

Contents
1. State Legislature ........................................................................................................................ 2
1.1. Constitutional Status ........................................................................................................... 2
1.2. Organization ........................................................................................................................ 2
1.2.1. Creation and abolition of Second Chambers in States ................................................. 2
1.3. Composition of Two Houses ............................................................................................... 2
1.4. Membership of State Legislature ........................................................................................ 3
1.4.1. Qualifications ............................................................................................................... 3
1.4.2. Disqualifications ........................................................................................................... 3
1.4.3. Vacation of Seats .......................................................................................................... 4
1.5. Presiding Officers of State Legislature ................................................................................ 4
1.5.1. Speaker of the Assembly .............................................................................................. 4
1.5.2. Deputy Speaker of Assembly ....................................................................................... 4
1.5.3. Chairman of Council ..................................................................................................... 4
1.5.4. Deputy Chairman of Council ........................................................................................ 5
1.6. Conduct of Business ............................................................................................................ 5
1.6.1. Duration ....................................................................................................................... 5
1.6.2. Sessions of State Legislature ........................................................................................ 5
1.7. Legislative Procedure in State Legislature ........................................................................... 5
1.8. Governor’s Power of Veto ................................................................................................... 7
1.8.1. Comparison of Veto Powers of Governor and President ............................................. 8
1.8.2. Legislative Assembly vs. Legislative Council of a State................................................. 8
1.8.3. Utility of Second Chamber in States............................................................................. 9
1.9. Criticism of Second Chamber in States ............................................................................... 9
1.10. Privileges of State Legislature ......................................................................................... 10
2. Emerging Issues ........................................................................................................................ 10
2.1. Functioning of state legislatures in India .......................................................................... 10
2.2 Role of governor in dissolution of the state legislature ..................................................... 11
3. UPSC Mains Previous Year UPSC Questions ............................................................................. 12
4. Previous Year Vision IAS GS Mains Questions .......................................................................... 13

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1. State Legislature Student Notes:

1.1. Constitutional Status

• India is a federal state, with a parliamentary form of government comprised of legislatures
at the Union and State levels.
• Articles 168 to 212 in Part VI of the Constitution deal with the organization, composition,
duration, officers, procedures, privileges, powers and so on of the state legislature.

1.2. Organization
• Based on the number of houses, a state legislature can either be Unicameral or Bicameral.
Bicameral legislature means that the legislature has two Houses – an upper and a lower
apart from the governor. The legislative council (Vidhan Parishad) is the Upper House while
the legislative assembly (Vidhan Sabha) is the Lower House.
• Montagu – Chelmsford Reforms introduced Bicameralism in India at the centre. Later, Govt.
of India Act 1935 extended it to 6 out of 11 provinces namely Bengal, Bombay, Madras,
Bihar, Assam and the United Provinces.
• The Constitution has given the States the option of establishing either a unicameral or
bicameral legislature. At present only six States have a bicameral legislature – Andhra
Pradesh, Bihar, Karnataka, Maharashtra, Telangana and Uttar Pradesh.
1.2.1. Creation and abolition of Second Chambers in States
• This involves a simple procedure, which does not involve amendment of the constitution.
Under the Article 169 of the Indian Constitution, the legislative assembly of the concerned
state can pass a resolution with special majority (that is, a majority of the total membership
of the Assembly not being less than two-thirds of the members actually present and
voting). Accordingly, Parliament may by law provide for the creation or abolition of the
Legislative Council of the State.
• In January 2020, Andhra Pradesh Legislative Assembly passed the resolution for abolition of
the Legislative Council. This resolution is yet to be cleared by the Parliament of India to
finally abolish the council.

1.3. Composition of Two Houses

Legislative Assembly Legislative Council
Permissible No. of From 60 to 500 (depending on 40- 1/3rd of the total strength of Legislative
Members population) Assembly
Exceptions: Goa, Arunachal
Pradesh and Sikkim- 30 (min)
Mizoram (40), Nagaland (46)
Election of Election by people on the basis 1/3rdare elected by the members of local
members of universal adult franchise bodies in the state, like municipalities,
district boards, etc.
1/3rdare elected by the members of the
Legislative Assembly of the state from
among the members who are not the
members of the Assembly.
1/12thare elected by graduates of three
years standing and residing within the state.
1/12thare elected by teachers of three years
standing in the state, not lower in standard
than secondary school.
Governor’s 1 member of Anglo Indian 1/6th of the total strength
Nominations Community

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Duration Normal term- 5 years LC is a continuing chamber (like Rajya Student Notes:
However, governor can dissolve Sabha), not subject to dissolution. 1/3rd of
the assembly at any time. Can members retire every second year. Hence,
be extended one year at a time the tenure of a member is six years
during emergency by a law of
Parliament.

1.4. Membership of State Legislature

1.4.1. Qualifications
The Constitution lays down the following qualifications for a person to be chosen as a member
of the State Legislature:
• He must be a citizen of India.
• He must make and subscribe to an oath or affirmation before the person authorized by the
Election Commission for this purpose. In his oath or affirmation, he swears
o To bear true faith and allegiance to the Constitution of India
o To uphold the sovereignty and integrity of India
• He should not be less than 25 years of age in case of the Legislative Assembly and not less
than 30 years of age in case of the Legislative Council.
• He must possess other qualification prescribed by the Parliament.
The Parliament has laid down following additional qualifications in the Representation of
People Act (1951):
• To be elected to the Legislative Council, a person must be an elector for an assembly
constituency in the concerned state and to be qualified for a Governor’s nomination, he
must be a resident in the concerned state.
• To be elected to the Legislative Assembly, a person must be an elector for an assembly
constituency in the concerned state.
• A person must be an SC or ST if wants to contest a seat reserved for SCs or STs respectively.
1.4.2. Disqualifications
Under the Constitution, 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 Union or state government.
b) if he is of unsound mind and stands so declared by a 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
e) if he is so disqualified under any law made by Parliament.
Accordingly, Accordingly, the Parliament has prescribed a number of additional disqualifications
in the Representation of People Act (1951). These are similar to those for Parliament. (Please
refer to Union Legislature notes)
Disqualification on the grounds of Defection
The Constitution also lays down that a person shall be disqualified for being a member of either
House of state legislature if he is so disqualified on the ground of defection under the
provisions of the Tenth Schedule.
The question of disqualification under the Tenth Schedule is decided by the Chairman, in the
case of legislative council and, Speaker, in the case of legislative assembly (and not by the
governor). In 1992, the Supreme Court ruled that the decision of Chairman/Speaker in this
regard is subject to judicial review

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1.4.3. Vacation of Seats Student Notes:

In the following cases, a member of the state legislature vacates his seat:
• Double Membership: A person cannot be a member of both Houses of state legislature at
one and the same time. If a person is elected to both the Houses, his seat in one of the
Houses falls vacant as per the provisions of a law made by the state legislature.
• Disqualification: If a member of the state legislature becomes subject to any of the
disqualifications, his seat becomes vacant.
• Resignation: A member may resign his seat by writing to the Chairman of legislative council
or Speaker of legislative assembly, as the case may be. The seat falls vacant when the
resignation is accepted.
• Absence: A House of the state legislature can declare the seat of a member vacant if he
absents himself from all its meeting for a period of sixty days without its permission.
• Other Cases: A member has to vacate his seat in the either House of state legislature,
o if his election is declared void by the court,
o if he is expelled by the House,
o if he is elected to the office of president or office of vice-president, and
o If he is appointed to the office of governor of a state.

1.5. Presiding Officers of State Legislature

1.5.1. Speaker of the Assembly
The Assembly elects the Speaker from amongst its members. Usually, the Speaker remains in
office during the life of the Assembly. However, he vacates his office earlier in the following
cases:
• If he ceases to be a member of the Assembly.
• If he resigns by writing to the Deputy Speaker.
• If he is removed by a resolution passed by a majority of all the then members of the
assembly. Such a resolution can only be moved after giving 14 days advance notice.
The powers of the Speaker of Legislative Assembly are similar to those of the Lok Sabha.
1.5.2. Deputy Speaker of Assembly
The Deputy Speaker is also directly elected by the Assembly from amongst its members. He is
elected after the election of Speaker has taken place. Usually, he remains in office during the
life of the Assembly. However, he vacates his office earlier in the following cases:
• If he ceases to be a member of the Assembly.
• If he resigns by writing to the Speaker.
• If he is removed by a resolution passed by a majority of all the then members of the
assembly. Such a resolution can only be moved after giving 14 days advance notice.
The Deputy Speaker performs the duties of the Speaker’s office when it is vacant. He also acts
as the Speaker when the latter is absent from the sitting of the assembly. In both cases, he has
all the powers of the Speaker.
The Speaker also nominates from amongst the members a panel of Chairpersons. Any one of
them can preside over the Assembly in the absence of the Speaker and the Deputy Speaker. He
has same powers as that of the Speaker while presiding.
1.5.3. Chairman of Council
The Legislative Council elects the Chairman from amongst its members. He vacates his office in
the following cases:
• If he ceases to be a member of the Council.
• If he resigns by writing to the Deputy Chairman.

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• If he is removed by a resolution passed by a majority of all the then members of the Student Notes:
Council. Such a resolution can only be moved after giving 14 days advance notice.
The powers of the Chairman are similar to those of the Speaker except that the Speaker
decides whether a Bill is a Money Bill or not. As in case of Speaker, the salaries and allowances
are fixed by state legislature and are charged on the Consolidated Fund of the State and not
subject to annual vote.
1.5.4. Deputy Chairman of Council
The Legislative Council elects the Chairman from amongst its members. He vacates his office in
the following cases:
• If he ceases to be a member of the Council.
• If he resigns by writing to the Chairman.
• If he is removed by a resolution passed by a majority of all the then members of the
Council. Such a resolution can only be moved after giving 14 days advance notice.
The Deputy Chairman performs the duties of the Chairman’s office when it is vacant. He also
acts as the Chairman when the latter is absent from the sitting of the assembly. In both cases,
he has all the powers of the Chairman.
The Chairman also nominates from amongst the members a panel of Vice-Chairpersons. Any
one of them can preside over the Council in the absence of the Chairman and the Deputy
Chairman. He has same powers as that of the Chairman while presiding.

1.6. Conduct of Business

1.6.1. Duration
1. Duration of Legislative Assembly
The duration of Legislative Assembly is five years but:
a. The Governor may dissolve it sooner than five years.
b. The term of five years may be extended in case of a proclamation of Emergency by the
President. In such a case, the Union Parliament has the power to extend the life of
Legislative Assembly up to a period not exceeding six months after the proclamation
ceases to have effect. However, such an extension shall not exceed one year at a time.
2. Duration of Legislative Council
The Legislative Council is not subject to dissolution. But 1/3rd of its members retire on the
expiry of every second year. Thus it is a permanent body like the Rajya Sabha
1.6.2. Sessions of State Legislature
The sessions of State Legislature are similar to those of the Union Legislature. For details
regarding Summoning, Adjournment, Adjournment Sine Die, Prorogation, Dissolution refer to
Union Legislature notes.

1.7. Legislative Procedure in State Legislature

The legislative procedure in a State Legislature having two chambers is broadly similar to that in
Parliament except for certain differences. These differences are described below.
Comparison of Legislative Procedure in Parliament and a Bicameral State Legislature
1. With regards to Money Bills
The position is same in case of Money Bills. The Legislative Council has no power except to
make recommendations to the Assembly for amendments or to withhold the Bill for a
period of 14 days. However, the will of the assembly prevails and the Assembly is not bound
to accept any recommendations of the Council. Thus there cannot be any deadlock
between the two Houses with regards to a Money Bill.

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2. With regards to Bills other than Money Bills Student Notes:

With regards to other Bills also, the Council can only delay a bill for a maximum period of 3
months. If the Council disagrees to such a Bill, it must go through a second journey from the
Assembly to the Council. However, in the second journey, the Council has no power to
withhold the Bill for more than a month. Thus the Legislative Council of a state is not a
revising chamber like Rajya Sabha but only an advisory or dilatory chamber.
3. Provisions for resolving a deadlock between the two Houses
Unlike the Parliament, there is no provision of a joint sitting to resolve a deadlock between
the two Houses of the State Legislature. In such a scenario, the views of the Assembly shall
prevail and the Council can only delay the passage of the Bill by a maximum of 4 months.
Comparison of Legislative Procedure in Parliament and State Legislature in case of ordinary
bills:
Parliament State Legislature
1 It can be introduced in either House of It can be introduced in either House of State
Parliament. Legislature.
2 It can be introduced either by a minister It can be introduced either by a minister or a
or a private member. private member.
3 It passes through first reading, second It passes through first reading, second reading and
reading and third reading in the third reading in the originating House.
originating House.
4 It is deemed to have been passed by the It is deemed to have been passed by the Parliament
Parliament only when both the Houses only when both the Houses have agreed to it,
have agreed to it, either with or without either with or without amendments.
amendments.
5 A deadlock between the two Houses A deadlock between the two Houses takes place
takes place when the second House, when the Legislative Council, after receiving the bill
after receiving a bill passed by the first passed by the Legislative Assembly, rejects the bill
House, rejects the bill or proposes or proposes amendments that are not acceptable
amendments that are not acceptable to to the Legislative Assembly or does not pass the bill
the first House or does not pass the bill within 3 months.
within 6 months.
6 The Constitution provides for a The Constitution does not provide for the
mechanism to resolve the deadlock mechanism of joint sitting of two Houses of the
between the two Houses. State Legislature to resolve a deadlock between the
over the passage of the bill.
7 The Lok Sabha cannot override the Rajya The Legislative Assembly can override the
Sabha by passing the Bill for the second Legislative Council by passing the Bill for second
time and vice versa. time (Legislative Council does not have such
privilege). When a bill is passed by the assembly for
the second time and transmitted to the Legislative
Council and it rejects the bill again (or proposes
amendments that are not acceptable to the
assembly or does not pass the bill within one
month) then the bill is deemed to have been
passed by both Houses.
8 The mechanism of joint sitting in case of The mechanism of passing the bill for the second
a deadlock is available irrespective of the time to resolve a deadlock applies to a bill
House where the House in which the Bill originating in the Legislative Assembly only. When a
originates. bill, which has originated in the Council and sent to
the assembly, and is rejected by the latter, the bill
ends and becomes dead.

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Comparison of Legislative Procedure in Parliament and State Legislature in case of Money Student Notes:
bills
Parliament State Legislature
1 It can be introduced only in the Lok It can be introduced only in the Legislative
Sabha and not in the Rajya Sabha. Assembly.
2 It can be introduced only by a minister It can be introduced only by a minister and not
and not by a private member. by a private member.
3 It can be introduced only on the prior It can be introduced only on the
recommendation of the President. recommendation of the Governor.
4 It cannot be rejected or amended by the It cannot be amended or rejected by the
Rajya Sabha. It should be returned to the Legislative Council. It has to be returned to the
Lok Sabha within 14 days, either with or Legislative Assembly within 14 days with or
without amendments. without amendments.
5 The Lok Sabha can either accept or reject The Legislative Assembly can either accept or
all or any of Rajya Sabha’s reject all or any of the Legislative Council’s
recommendations. recommendations.
6 If the Lok Sabha accepts any If the Legislative Assembly accepts any
recommendation, then the bill is recommendation, then the bill is deemed to
deemed to have been passed in the have been passed in the modified form.
modified form.
7 If the Lok Sabha does not accept any If the Legislative Assembly does not accept any
recommendation, then the bill is recommendation, the bill is then deemed to
deemed to have been passed in the have been passed by both Houses in the original
original form. form.
8 If the Rajya Sabha does not return the If the Legislative Council does not return the bill
bill within 14 days then the bill is within 14 days then the bill is deemed to have
deemed to have been passed in the been passed in the original form.
original form.
9 There is no provision of a joint sitting in There is no provision of a joint sitting in case of a
case of a deadlock between the two deadlock between the two Houses.
Houses in case of a Money Bill.
10 The money bill passed by Parliament is When a money bill is presented to the Governor,
presented to the President. He may he may give his assent, withhold his assent or
either give his assent or withhold his reserve the bill for Presidential assent but
assent but cannot return it for cannot return the bill to the state legislature for
reconsideration. reconsideration.
The President can give his assent or withhold
assent but cannot return the bill for
reconsideration.

1.8. Governor’s Power of Veto

When a bill is presented before the Governor (after its passage by both Houses of the
Legislature), the Governor may take any of the following steps:
1. He may give his assent to the bill. In this case, it will become a law at once.
2. He may withhold his assent to the bill. In this case, the bill fails to become a law.
3. In case of a bill other than a money bill, he may return the bill with a message.
4. He may reserve the bill for the consideration of the President. The reservation is
compulsory in case the law in question would diminish the powers of the High Court under

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the Constitution. In case of a money bill so reserved, the President may give his assent or Student Notes:
withhold his assent.
But in case of a bill other than a money bill, he also has the option to direct the Governor to
return the bill to the legislature for reconsideration. In this case, the Legislature must
reconsider the bill within six months and if passed again, the bill has to presented to the
President again. But it shall not be obligatory upon the President to give his assent. (Art.
201)
It is clear that a bill, which is reserved for the consideration of the President, shall have no legal
effect until the President declares his assent to it. Further, the Constitution imposes no time
limit on him to assent (or withhold his assent) to the bill. Consequently, the President can keep
a bill of State Legislature pending at his hands for an indefinite period of time.
In addition, when a bill is reserved for President’s consideration, he can refer it to the Supreme
Court under Art. 143 for its advisory opinion where any doubts as to its constitutionality arise.
This is done in order to decide whether to assent to a bill or to withhold assent.
1.8.1. Comparison of Veto Powers of Governor and President
President Governor
May assent to the Bill passed by both Houses of the May assent to the Bill passed by the State
Parliament. Legislature.
May declare that he withholds his assent, in which May declare that he withholds his assent, in
case the Union Bill fails to become a law. which case the Bill fails to become a law.
In case of a Bill other than a Money Bill, he may return In case of a Bill other than a Money Bill, he may
it for reconsideration by the Parliament. If the Bill is return it for reconsideration by the State
passed again by the Parliament, with or without Legislature. If the Bill is passed again by the
amendments, the President has to declare his assent Legislature, with or without amendments, the
to it. Governor has to declare his assent to it.
-Nil- Instead of either assenting or withholding his
assent, the Governor may reserve the Bill for
President’s consideration
In case of a State Bill reserved for President’s Once the Governor reserves a Bill for the
consideration, he can take the following steps: President’s consideration, the subsequent
enactment of the Bill is in the hands of the
1. In case of a Money Bill: He may either declare that
President and the Governor plays no part in its
he assents to it or withholds his assent to it.
career.
2. Any other Bill: He may
(a) declare that he assents to it or withholds his
assent to it, or
(b) return the Bill to the State Legislature for
reconsideration. The state legislature must
reconsider the Bill within 6 months. If it is passed
again (with or without amendments), it must be
presented to the President again directly. But the
President is not bound to give his assent, even
though the State Legislature has passed the Bill
twice.

1.8.2. Legislative Assembly vs. Legislative Council of a State

It is clear that the position of the Legislative Council vis-à-vis the Legislative Assembly is much
weaker than the position of the Rajya Sabha vis-à-vis the Lok Sabha. The Rajya Sabha has equal
powers with the Lok Sabha in all spheres except financial matters and with regards to the
control over the Government. On the other hand the Legislative Council is subordinate to the
Legislative Assembly in the following respects:

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• A money bill can be introduced only in assembly and not in council. The council cannot Student Notes:
amend or reject the money bill. It should return the bill in 14 days, either with or without
recommendations.
• With regards to ordinary Bill also, the Council is subordinate to the Assembly. It can at most
cause a delay of 4 months (in two journeys) in the passage of the Bill originating in the
Assembly. In case of a disagreement, the will of the Assembly has its way.
• On the other hand, in case of a Bill originating in the Legislative Council, the Assembly has
the power of rejecting and putting an end to the Bill forthwith.
• The very existence of Legislative Council depends upon the will of the Legislative Assembly.
The latter has the power to pass a resolution for the abolition of the second Chamber by an
act of Parliament.
• The Council of Ministers in responsible only to the Legislative Assembly.
• The members of council do not participate in the election of the President of India and
representatives of the state in Rajya Sabha.
• The council has no effective say in the constitutional amendment bill. (Interestingly the
constitution does not say anything regarding the role of legislative council.
The Constitution prescribes lesser importance to Legislative Council of a State compared to
the Rajya Sabha because:
• The Rajya Sabha represents the federal character of the Constitution, so it should have a
better status than merely being a dilatory body. Hence, the Constitution provides for a joint
sitting in case of a disagreement between the Lok Sabha and Rajya Sabha.
• However the Lok Sabha will ultimately have an upper hand due to its numerical majority. In
case of State Legislature, the Constitution of India adopts the English system.
• According to the English system, the Upper House must eventually give way to the Lower
House, which represents the will of the people. Under this system, the Upper House has no
power to obstruct the Lower House other than to effect some delay. This has been adopted
in our Constitution since the question of federal importance of Upper House does not arise
in case of State Legislatures.
• The Legislative Council is heterogeneously constituted. It represents different interests of
differently elected members and also includes some nominated members. On the other
hand, the Rajya Sabha is homogeneously constituted. It represents only the States and
most of the members are elected (only 12 out of 250 are nominated).
1.8.3. Utility of Second Chamber in States
• It checks hasty, defective, careless and ill-considered legislation made by the Assembly by
using its dilatory power.
• Due to indirect elections and nomination of persons having special knowledge, the
Legislative Council commands better resources to vet and scrutinize legislations. It also
gives representation to the people who cannot directly face elections (via nominations).
• 2nd ARC suggested that Legislative Council must work as representatives of the Panchayati
Raj Institutions and the Constitution may be suitable amended to give the required powers
to the council to work for strengthening the local governance.

1.9. Criticism of Second Chamber in States

• Plays Superfluous and obstructive Role: 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. If on the other hand, two different parties are holding sway
in the two Houses, the upper house will delay the bills for four months unnecessarily.
• Not an effective check: Powers of the Legislative Councils are limited to the extent that
they can hardly impose any effective check on the Assemblies.

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• Stronghold of vested interests: It serves as stronghold of vested interests, who are not Student Notes:
expected to support progressive legislation. Instead they may block such legislation
initiated by popularly elected Legislative Assembly.
• Backdoor entry of defeated members: It is utilized to accommodate discredited party-men
who may not be able to return to Assemblies through popular votes. The nominated quota
placed in the hands of Governor may be used for enabling these defeated leaders to seek
nomination to the Council and even their elevation to the Chief Minister ship.
• Costly institution: It is a big drain on the State’s exchequer. In the Punjab Vidhan Sabha, the
Vidhan Parishad was described as a superfluous luxury. In West Bengal also one of the main
reasons for its abolition was stated as unnecessary burden on the State exchequer.
• Utility doubtful: Critics point out that the very fact that some of the States, such as Punjab,
Bihar and West Bengal decided to wind up bicameral legislatures goes to prove that second
chambers have doubtful utility. The provision for their abolition in the Constitution itself
further confirms that even the Constituent Assembly was doubtful about the utility of these
chambers.
• Heterogeneity: A blend of direct election, indirect election and nomination makes the
Council a hotchpotch of representation. A chamber so heterogeneously constituted, neither
serves the purpose of a revisory chamber nor acts as an effective brake against hasty
legislation.

1.10. Privileges of State Legislature

The privileges of the Union Parliament and State Legislatures are identical according to the
constitutional provisions (Arts. 105 and 194). It may be noted that the Constitution has
extended the privileges of State Legislature to those persons who are entitled to speak and take
part in the proceedings of the state legislature or any of its committees. These include
advocate-general of state and state ministers. The following propositions may be noted from
the decisions of the Supreme Court:
• Each House of the State Legislature has the power to punish for breach of its privileges or
for contempt.
• Each House is the sole judge of the question whether its privileges have been infringed. The
courts have no jurisdiction to interfere with the decision of the House on this point.
• However, the Court can interfere if the Legislature or its duly authorized officer is seeking to
assert a privilege not known to the law of the Parliament, or if the notice issued or the
action taken was without jurisdiction.
• No House of the Legislature had the power to create for itself any new privilege not known
to the law. The Courts possess the power to determine whether the House in fact possesses
a particular privilege.
• It is also competent for the High Court to entertain a petition for habeas corpus under Art.
226 (or the Supreme Court under Art. 32) challenging the legality of sentence imposed by a
Legislature for contempt. This can be done on the ground that it has violated a fundamental
right of the petitioner. The Court can release the prisoner on bail, pending disposal of that
petition.
• Once a privilege is held to exist, it is for the House to judge the occasion and manner of
exercise. The Court cannot interfere with an erroneous decision by the House or its Speaker
in respect of breach of its privilege.

2. Emerging Issues
2.1. Functioning of state legislatures in India
An analysis of NITI Aayog’s Innovation Index Report 2019 and other reports by PRS earmarks
following issues in the functioning of state legislatures in India:

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• Dominance of undemocratic processes: In most states, Chief Ministers solely run the state Student Notes:
without making many ministers portfolios clear to the public. Assembly debates seldom
take place and Bills are passed without adequate discussion. This gives illusion of efficiency
but it overlooks democratic process.
• Inability to hold executive accountable: Asking questions ( starred or unstarred) to the
government is an effective way to keep a check on the executive. But the report suggest
that there exits a disparity in the number of question asked in the major states. Total
starred questions vary between 11,200 in Rajasthan to 65 in West Bengal in the last two
years. However, only 21 per cent of starred questions admitted in the 14th Rajasthan
Assembly were answered on the floor of the House.
• Lack of discussion and deliberations: Transparency and public accessibility to the
procedure followed in the house has not automatically resulted in improved legislative
performance. A case in point is Karnataka – a state which is ranked highest in the innovation
report. Between 2017 to 2020, on an average each MLA asked 58 questions and a video
repository of all assembly proceedings, including Question Hour, is available online. But a
report by PRS suggest that 92 per cent of Bills in the state’s assembly were passed within a
week of their introduction.
• Lack of participation by the members: In Chhattisgarh assembly, only 78 MLAs have asked
questions in its 4th assembly between 2014 and 2018 and a meagre 5 per cent of time was
spent on legislation. Despite this, the House managed to pass 104 Bills and 94 per cent of
these were passed within a week of introduction.

• Issues raised by the members: A deeper analysis shows that MLAs concern themselves to
the micro-civic problems like waste management, sewage treatment, construction of roads
and supply of basic utilities. However, 73rd Amendment Act empowered local bodies to take
care of these issues. But the fear of voter dissatisfaction forces MLAs to focus on these
issues instead of legislative deliberations and holding the government accountable through
policy-relevant questions.

2.2 Role of governor in dissolution of the state legislature

Issue
• In the recent past, legislatures of various states have been dissolved by their respective
governors on some feeble grounds like ‘extensive horse trading’ or the possibility that a
government formed by parties with “opposing political ideologies” would not be stable.
Constitutional Provisions related to dissolution
• Article 172 - Every Legislative Assembly of every State, unless sooner dissolved, shall
continue for five years.
• Article 174 (2) (b) - states that the Governor may, from time to time, dissolve the
Legislative Assembly.

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• Article 356 : In case of failure of constitutional machinery in State the President, on receipt Student Notes:
of report from the Governor of the State or otherwise,
o may assume to himself the functions of the Government of the State
o declare that the powers of the Legislature of the State shall be exercisable by or under
the authority of Parliament
Issues related to the dissolution powers of the governors:
• Lack of Objective Criteria for untimely dissolution: While Article 174 gives powers to the
governor to dissolve the assembly, but the Constitution is silent on as to when and under
what circumstances can the House can be dissolved.
• Politically motivated: Potential for political instability in the future being cited as a reason
in J&K to prevent emerging alliances is undemocratic in nature. escribing an alliance as
opportunistic is fine as far as it is political opinion but it canno be the basis for
constitutional action.
• Lack of political neutrality: The post has been reduced to becoming a retirement package
for politicians for being political faithful to the government of the day. Consequently, the
office has been used by various governments at the centre as a political tool to destabilise
elected state governments. Bihar State Assembly was dissolved by the governor in 2005 on
apprehensions of “horse trading. Later the Supreme Court called the decision to be illegal
and mala fide.
Way forward
According to Sarkaria Commission:
• The state assembly should not be dissolved unless the proclamation is approved by the
parliament.
• Sparing use of article 356 of the constitution should be made.
• All possibilities of formation of an alternative government must be explored before
imposing presidential rule in the state.
MM Punchhi Commission also recommended that:
• The governor should follow “constitutional conventions” in a case of a hung Assembly.
• It suggested a provision of ‘Localized Emergency’ by which the central government can
tackle issue at town/district level without dissolving the state legislative assembly.
Also the Supreme Court in the Bommai Judgement of 1994 accorded primacy to a floor test as
a check of majority. The court also said that the power under Article 356 is extraordinary and
must be used wisely and not for political gain. The verdict concluded that the power of the
President to dismiss a State government is not absolute. The verdict said the President should
exercise the power only after his proclamation (imposing his/her rule) is approved by both
Houses of Parliament. Till then, the Court said, the President can only suspend the Legislative
Assembly by suspending the provisions of Constitution relating to the Legislative Assembly.
Later in the Rameshwar Prasad Case (2006), the court observed that Governor cannot shut out
post-poll alliances altogether as one of the ways in which a popular government may be
formed.

3. UPSC Mains Previous Year UPSC Questions

1. How any by which authority can a State Legislative Council be abolished?
2. Should the Speaker of a Legislative Assembly appear before the courts on summons? Justify
your viewpoint
3. What is a bicameral legislature? Mention the states that have a bicameral legislature in our
country.
4. On what grounds the Legislative Councils are justified? How is it created or abolished in a
State?

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 UNION EXECUTIVE Student Notes:

Contents
1. Introduction ............................................................................................................................... 3
2. President .................................................................................................................................... 3
2.1. Qualification ........................................................................................................................ 3
2.2. Conditions of the President’s Office ................................................................................... 3
2.3. Term of Office...................................................................................................................... 4
2.4. Election Procedure .............................................................................................................. 4
2.4.1. Electoral College ........................................................................................................... 4
2.4.2. Manner of Election....................................................................................................... 5
2.4.3. Issues related to the Election ....................................................................................... 5
2.4.4. Critical Analysis ............................................................................................................ 6
2.5. Vacancy in the Office of President ...................................................................................... 6
2.6. Powers and Functions of the President .............................................................................. 6
2.6.1. Executive Powers.......................................................................................................... 6
2.6.2. Legislative Powers ........................................................................................................ 8
2.6.3. Emergency Powers ....................................................................................................... 9
2.6.4. Financial Powers......................................................................................................... 12
2.6.5. Diplomatic Powers ..................................................................................................... 12
2.6.6. Military Powers .......................................................................................................... 12
2.6.7. Judicial Powers ........................................................................................................... 12
2.6.8. Pardoning Powers....................................................................................................... 12
2.6.9. Veto Power ................................................................................................................. 14
2.6.10. Ordinance-Making Power ........................................................................................ 15
2.7. Constitutional Position of the President ........................................................................... 16
2.7.1. Forty-second Amendment of the Constitution, 1976 ................................................ 17
2.7.2. Forty-fourth Amendment of the Constitution, 1978 ................................................. 17
2.7.3. Situational Discretion available to the President ....................................................... 17
2.8. Impeachment of the President ......................................................................................... 19
2.8.1. Explanation................................................................................................................. 19
2.9. List of Presidents of India .................................................................................................. 19
3. Vice President .......................................................................................................................... 22
3.1. Introduction ...................................................................................................................... 22
3.2. Qualifications .................................................................................................................... 22
3.3. Election.............................................................................................................................. 22
3.4. Term of Office.................................................................................................................... 23
3.5. Vacancy in Office ............................................................................................................... 23
3.6. Powers and Functions ....................................................................................................... 23
3.7. Removal of Vice President ................................................................................................ 23
3.8. Comparison with the USA Vice President ......................................................................... 24
4. Prime Minister.......................................................................................................................... 25
4.1. Appointment of the Prime Minister .................................................................................. 25
4.2. Term of the Prime Minister ............................................................................................... 25
4.3. Powers and Functions of the Prime Minister .................................................................... 25
4.3.1. In Relation to the Council of Ministers....................................................................... 26
4.3.2. In Relation to the President ....................................................................................... 26
4.3.3. In Relation to Parliament ........................................................................................... 26
4.3.4. Other Powers and Functions ...................................................................................... 26
4.4. Prime Minister as member of the Rajya Sabha................................................................. 26
4.5. Prime Ministerial Form of Government ............................................................................ 27
4.6. Impact of Coalition Politics on the office of PM ............................................................... 27

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5. Central Council of Ministers ..................................................................................................... 28 Student Notes:

5.1. Appointment and Tenure of the Council of Ministers....................................................... 29
5.2. Composition of the Council of Ministers........................................................................... 29
5.3. Functions of the Council of Ministers ............................................................................... 30
6. Cabinet ..................................................................................................................................... 30
6.1. Functions of the Cabinet ................................................................................................... 30
6.2. Cabinet Committees.......................................................................................................... 31
6.3. Features of Cabinet Committees....................................................................................... 32
6.4. Principles on which the Cabinet system of Government functions .................................. 32
6.4.1. Principle of Collective Responsibility ......................................................................... 32
6.4.2. Individual Responsibility of Ministers ........................................................................ 32
6.4.3. Role of the Prime Minister ......................................................................................... 33
7. Attorney General ...................................................................................................................... 34
7.1. Duties of Attorney-General ............................................................................................... 34
7.2. Rights and Limitations ....................................................................................................... 35
8. UPSC Previous Years’ Questions ............................................................................................... 36
9. Vision IAS Previous Years’ Questions ....................................................................................... 36

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All rights are reserved. No part of this document may be reproduced, stored in a retrieval
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1. Introduction Student Notes:

India adopted the Westminster model of democracy, wherein Parliament is the supreme law-
making body. However, it is the executive that has the sole authority and responsibility for the
daily administration of the country. It is this branch of the government that executes or
enforces the laws made by the Parliament.
The President, Vice President, Prime Minister, Council of Ministers, and the Attorney General
form the Union Executive. A similar structure operates at the level of States too, wherein the
Governor, Chief Minister, Council of Ministers, and the Advocate General form the State
executive.

2. President
A Cabinet form of government usually has two executives – one, the real head, and other, the
titular or ceremonial head. It is the President, who is the titular head in India. His office is
largely ceremonial in nature.
Such a titular head is needed because:
a) The President’s office can be considered above party politics, and is a symbol of unity,
integrity and solidarity of the nation
b) As the life of Council of Ministers is uncertain and subject to it enjoying majority in the Lok
Sabha, there has to be an office, with a fixed term, to ensure continuity in administration
c) An additional reason in the context of India is federalism. Members of State Legislative
Assemblies also participate in the President’s elections; and hence the President can be said
to represent the States too, apart from the Union.
According to Article 52, there shall be a President of India who would be the Head of the Union
Executive. Here, the word “shall” means that there would always be a President of India. The
post shall never lie vacant. It cannot be abolished. Election of the President must be completed
before the expiry of his term. In case of temporary absence due to illness etc., it would be the
Vice President who holds the Office of the President, until the President resumes his duties.

2.1. Qualification
In order to be qualified for election as President, a person must:
• be a citizen of India
• have completed 35 yrs. of age
• be qualified to contest elections as a member of the Lok Sabha (House of the People)
• not hold any office of profit under the Government of India or the Government of any State
or any local or other authority subject to the control of any of the said Government (Art.
58).

2.2. Conditions of the President’s Office

• The President shall not be a member of any house of Union or State legislature. This implies
that if such member is elected as President, he shall be deemed to have vacated his seat in
that house on which he enters upon his office as President.
• The President shall not hold any other office of profit.
• He is entitled, without payment of rent, to the use of his official residence (the Rashtrapati
Bhavan).
• The emoluments and allowances of the President as may be determined by Parliament
cannot be diminished during his term of office.

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2.3. Term of Office Student Notes:

The President holds the office for a term of 5 years from the date on which he enters upon his
office. However, the President’s office may terminate within the term of five years, in either of
the following two ways:
a) By resignation in writing under his hand addressed to the Vice-President of India.
b) By removal for violation of the Constitution, by the process of impeachment (Art. 56). The
only ground for impeachment specified in Art. 61 (1) is ‘violation of the Constitution’ (to be
discussed in detail later).

2.4. Election Procedure

The President of India is elected by indirect election, i.e. by an electoral college, in accordance
with the system of proportional representation by means of a single transferable vote, and the
voting is by secret ballot.
2.4.1. Electoral College
The Electoral College consists of:
1. Elected Members of the both the Houses of Parliament.
2. Elected members of Legislative Assemblies of States.
3. Elected members of the legislative assemblies of the Union Territories of Delhi and
Puducherry (included by 70th Constitutional Amendment Act, 1992).
This implies, that the following members are not allowed to vote in the Presidential election:
• Nominated members of the Lok Sabha.
• Nominated members of the Rajya Sabha.
• Nominated members of the Legislative Assemblies of State.
• Elected and Nominated members of the Legislative Councils of States.
• Nominated members of the Legislative Assembly of Delhi & Puducherry.
The Parliament has powers to regulate by law, the matters relating to the elections of the
President and the Vice President (VP). As per the Presidential and Vice-Presidential Elections
Act, a candidate, to be nominated for the office of the President, needs 50 electors as
proposers and 50 electors as seconders (elector here implies a member of the President’s
electoral college) for his or her name to appear on the ballot.
As far as practicable, there shall be uniformity of representation of the different States at the
election, according to the population and the total number of elected members of the
Legislative Assembly of each State, and parity shall also be maintained between the States as a
whole and the Union (Art. 55). In this way, the President shall be a representative of the nation
as well as a representative of the people in the different States. It also gives recognition to the
status of the States in the federal system.
In order to secure uniformity in the scale of representation of the different States, it is provided
that every elected member of the Legislative Assembly (Vidhan Sabha) of a State has to cast as
many votes as there are multiples of one thousand in the quotient obtained by dividing the
population of the State by the total number of elected members of the Assembly, and if, after
taking the said multiples of one thousand, the remainder is not less than five hundred, the
votes of each member referred to above are further increased by one. To put it in simpler
words, each member of the Electoral College who is a member of a State Legislative Assembly
(MLA) will have a number of votes calculated as follows:
Value of the vote of an MLA = (Total Population of the State)/ (Total number of elected
members in the Legislative Assembly X 1000)
Fractions exceeding one-half being counted as one.

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The following example will explain the method of calculation more clearly: Student Notes:
• Suppose the population of state A is 37,129,852. Let us take the total number of elected
members in the Legislative Assembly of A to be 276. To obtain the number of votes which
each such elected member will be entitled to cast at the election of the President we have
first to divide 37,129,852 (which is the population) by 276 (which is the total number of
elected members), and then to divide the quotient by 1,000. In this case the quotient is
134,528.449. The number of votes which each such member will be entitled to cast would
be 134,528.449/1000 i.e. 135 (as fraction is 0.528 which greater than 0.5 thus counted as
one).
Each elected member of either House of Parliament (MP) have such number of votes as
obtained by dividing the total number of votes assigned to the members of the Legislative
Assemblies of the States divided by the total number of the elected members of both Houses of
Parliament, fractions exceeding one-half being counted as one and other fractions being
disregarded.
Value of the vote of an MP = (Total number of votes assigned to the elected members of all
the State Assemblies)/(Total number of elected members of both Houses of the Parliament)
Fractions exceeding one-half being counted as one.
Further, the system of proportional representation by means of a single transferable vote, by
secret ballot, ensures that the successful candidate is returned by an absolute majority of votes.
A candidate, in order to be declared elected to the office of President, must secure a fixed
quota of votes. The quota of votes is determined by dividing the total number of valid votes
polled by the number of candidates to be elected (here only one candidate is to be elected as
President) plus one and adding one to the quotient. The formula can be expressed as:
Electoral Quota= [Total Number of valid votes polled/((1+1)=2)]+ 1
2.4.2. Manner of Election
Each member of the electoral college is given only one ballot paper. The voter, while casting his
vote, is required to indicate his preferences by marking 1,2,3,4, etc. against the names of
candidates. This means that the voter can indicate as many preferences as there are candidates
in the fray.
In the first phase, the first preference votes are counted. In case a candidate secures the
required quota in this phase, he is declared elected. Otherwise, the process of transfer of votes
is set in motion. The ballot of the candidate securing the least number of first preference votes
are cancelled and his second preference votes are transferred to the first preference votes of
other candidates. This process continues till a candidate secures the required quota.
2.4.3. Issues related to the Election
According to Article 71, all doubts and disputes in connection with the election of the President
are inquired into and decided by the Supreme Court of India, whose jurisdiction shall be
exclusive and final (other Courts have no jurisdiction over the same). An election petition calling
in question an election to the office of the President may be presented within 30 days from the
date of publication of the declaration of the result of election to the Supreme Court. This can be
presented by any candidate at such election or any twenty or more electors joined together as
petitioners. Petitions can be filled only on two grounds:
• Nomination of the candidate is wrongly rejected
• Elected candidate is wrongly accepted
No election can be questioned on the ground that there was a vacancy in the Electoral College.

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In case, the election is declared void by the Supreme Court, acts done by the President prior to Student Notes:
the date of such decision of the Supreme Court shall not be invalidated.
2.4.4. Critical Analysis
The system of indirect election was criticized by some as falling short of the democratic ideal
underlying universal franchise. But indirect election was supported by the framers of the
Constitution, on the following grounds:
• Direct election by an electorate as large as in India, would mean a tremendous loss of time,
energy and money.
• Under the system of responsible Government introduced by the Constitution, real power
would vest in the Prime Minister, who heads the Council of Minister; so it would be
anomalous to elect the President directly by the people without giving him real powers.
Some members of the Constituent Assembly suggested that the President should be elected by
the members of the two Houses of Parliament alone. The makers of the Constitution did not
prefer this as the Parliament, dominated by one political party, would have invariably chosen a
candidate from that party and such a President could not represent the States of the Indian
Union. The present system, on the other hand, makes the President a representative of the
Union and the States equally.
Further, it was pointed out in the Constituent Assembly that the expression ‘proportional
representation’ in the case of Presidential election is a misnomer. Proportional representation
takes place where two or more seats are to be filled. In case of the President, the vacancy is
only one. It could be better called a preferential or alternative vote system. Similarly, the
expression ‘single transferable vote’ was also objected on the ground that no voter has a single
vote; every voter has plural votes.

2.5. Vacancy in the Office of President

Condition of Vacancy Who shall act as President
On Expiry of his Term of Five Years Election must be conducted before expiry of the term. If
somehow election is delayed, the outgoing President
continues to hold the office, until his successor assumes the
office.
By his Death, Resignation, Removal by Vice President assumes the office until a new President is
impeachment, Otherwise, for e.g. he elected. Elections are to be held within six months of
becomes disqualified to hold office. occurrence of the vacancy.

Illness or Absence from India Vice President assumes the office until the President resumes
his duties.
Note: In case the office of Vice President is vacant, the Chief Justice of India (or if his office is
also vacant, the senior most judge of the Supreme Court available) shall act as the President of
India.
When the Vice President, Shri V. V. Giri, who was acting as the President due to the vacancy
caused by the death of the President, Dr. Zakir Husain, resigned from the office of the Vice
President in 1969, the Chief Justice of India, Shri M. Hidayatullah, discharged the functions of
the President.

2.6. Powers and Functions of the President

The powers enjoyed by the President and the functions performed by him are divided into the
following heads:
2.6.1. Executive Powers
Article 53(1) provides that executive powers can be exercised by the President either (i) directly

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or (ii) through officers subordinated to him. Student Notes:

Here, the ‘officers subordinated to him’ include the Council of Ministers.
Notably, the Article needs to be read together with Article 74, which provides that:
There shall be a Council of Ministers, with the Prime Minister as its head, to aid and advice
the President.
Here the word “shall” means that the Constitution doesn’t envisage a situation wherein the
President can act without the aid and advice of the Council of Ministers. In case, the
government has lost majority, the President is to constitute a caretaker government. Invariably,
he asks the incumbent government to continue to hold office, until the next government is
formed.
• He appoints the Prime Minister and other ministers; and they hold office during his
pleasure.
• He appoints the Attorney General of India and determines his remuneration. He too holds
office during the pleasure of the President.
The President also appoints the following:
o Comptroller and Auditor General of India
o Chief Election Commissioner and other Election Commissioners
o Chairman and Members of the UPSC
o Governors of the States
o Chairman and the members of the Finance Commission
o Judges of High Courts and Supreme Court
In making some of the appointments, the President is required by the Constitution to
consult persons other than the ministers as well. Thus, in appointing the Judges of the
Supreme Court the President shall consult the Chief Justice of India and such other Judges
of the Supreme Court and of the High Courts as he may deem necessary [Art 124(2)].
Moreover, besides the power of appointing the above specified functionaries, the Indian
Constitution does not vest in the President any absolute power to appoint inferior officers
of the Union as is to be found in the American Constitution. The Indian Constitution thus
seeks to avoid the undesirable ‘spoils system’ of America. Rather it makes the ‘Union Public
Services and the Union Public Service Commission’ –a legislative subject for the Union
Parliament, and by making it obligatory on the part of the President to consult the Public
Service Commission in matters relating to appointment [Art. 320(3)], except in certain
specified cases.
• The President can seek any information relating to the administration of affairs of the
Union, and proposals for legislation from the Prime Minister.
• He can require the Prime Minister to submit, for consideration of the Council of Ministers
(CoM), any matter on which a decision has been taken by a minister, but which has not
been considered by the CoM.
• He can appoint a commission to investigate into the conditions of SCs, STs and other
backward classes.
• He can appoint an inter-state council to promote Centre-state and inter-state cooperation.
• He directly administers the Union Territories through administrators appointed by him.
Powers of the President with respect to Administration of Scheduled/Tribal
Areas
1. Power to declare an area as Scheduled Area.
2. Power that an area will cease to be a Scheduled Area.
3. Power to constitute Tribal Advisory Committees.

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4. For peace and good governance of Scheduled Areas in a State, the governor can make Student Notes:
regulations. Such regulations will have no effect unless they have been submitted for
President’s consideration and have received his assent.
5. The President can require the Governor to prepare a report on administration of the area.
6. The President can issue directions with respect to administration of such an area.
Extent of Executive Power of the Union
Article 73 provides:
1) All those subjects on which the Union Parliament has powers to make law, Union Executive
will have powers on such subjects.
2) Whatever power and authority emerges because of any treaty or agreement.
3) With respect to the Concurrent List, ordinarily the executive powers will be with the states,
but if a law made by the Parliament specifically provides that the power is to be exercised
by the Union executive, then it is the Union that will exercise executive powers.
Further, Article 53(3) provides:
If any law passed by the Parliament has given a function to the government of any state, or
any other authority, it shall not be understood or deemed to be transferred to the
President.
Notably, Article 53 doesn’t prevent the Parliament from giving any executive function by law to
any authority, other than the President.
Powers with respect to allocation and transaction of business
Article 77 provides:
1) All executive action of the Government of India shall be expressed to be taken in the name
of the President
2) Orders and other instruments made and executed in the name of the President shall be
authenticated in such manner as may be specified in rules to be made by the President, and
the validity of an order or instrument, which is so authenticated shall not be called in
question on the ground that it is not an order or instrument made or executed by the
President
3) The President shall make rules for more convenient transaction of the business of the
Government of India, and for the allocation among Ministers of the said business
However, the executive powers of the President, like his other powers, are subject to the advice
of the Council of Ministers, headed by the Prime Minister (Article 74).
2.6.2. Legislative Powers
The President is an integral part of the Parliament. He enjoys the following legislative powers:
• The President can summon or prorogue the Parliament and dissolve the Lok Sabha. He can
also summon a joint sitting (in case of ordinary bills and financial bills only)of both the
Houses of Parliament, which is presided over by the Speaker of the Lok Sabha.
• He can address the Parliament at the commencement of the first session after each general
election and the first session of each year. Apart from this he can send messages to either
House of Parliament on any important matter of national, constitutional or public interest.
• The President can appoint any member of the Lok Sabha to preside over its proceedings
when the offices of both the Speaker and the Deputy Speaker fall vacant. He can also
appoint any member of the Rajya Sabha to preside over its proceedings when the offices of
both the Chairman and the Deputy Chairman fall vacant.
• The President of India has the power to constitute the Parliament partially, by virtue of his
powers to nominate members to both the Houses of the Parliament.

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o He can nominate two members from Anglo Indian Community to the Lok Sabha, if he is Student Notes:
satisfied that the community is not adequately represented in the House.
o He can nominate twelve members to the Rajya Sabha from among persons having
special knowledge and practical experience of science, art, literature and social service.
• The Constitution requires the previous sanction of the President for introducing certain
legislations.
o For example, a bill, which seeks to create a new state or change the boundary of an
existing state or change the name of a state or a bill which would involve expenditure
from the Consolidated Fund of India.
o Money bills also require the previous sanction of the President before their
introduction in the Lower House.
o Besides, all bills after they are passed in the Parliament need his consent to become
Acts.
• When a bill is sent to the Parliament after it has been passed by the Parliament, the
President can:
o give his assent to the bill, or
o withhold his assent to the bill, or
o return the bill (if it is not a Money Bill) for reconsideration of the Parliament. However,
if the bill is passed again by the Parliament, with or without amendments, the President
has to give his assent to the bill.
The President may either give or withhold his assent to a Money Bill. A Money Bill
cannot be returned to the House, by the President, for its reconsideration. Also, the
President is bound to give his assent to a Constitutional Amendment Bill passed by the
Parliament by the prescribed majority and, where necessary, ratified by the requisite
number of State Legislatures.
• When a bill passed by a State legislature is reserved by the Governor for consideration of
the President, the President can:
o give his assent to the bill, or
o withhold his assent to the bill, or
o 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 reconsideration.
• The President lays reports of the Finance Commission, the Union Public Service
Commission, National Commission for SCs and STs, Central Vigilance Commission, Central
Information Commission, and the Comptroller and Auditor-General relating to the accounts
of the Union etc. before the Parliament.
• According to Article 103, if any question arises that a member of either House of Parliament
has become subject to disqualification under Article 102, then the matter shall be referred
to the President, whose decision will be final. However, precondition is that the President
shall take the opinion of Election Commission before making such a decision and will act
according to such an advice.
• He can make regulations for the peace, progress and good government of the Andaman
and Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli and Daman and Diu. In the case
of Puducherry also, the President can legislate by making regulations, but only when the
assembly is suspended or dissolved.
2.6.3. Emergency Powers
The makers of the Indian Constitution were influenced by the relevant provisions of the
Government of India Act, 1935 and the Constitution of Weimer Republic of Germany wherein
emergency provisions had been incorporated. In the Constitution of India, three kinds of

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emergencies have been envisaged -National Emergency, State Emergency and Financial Student Notes:
Emergency.
To deal with any emergency, the President has been given some extraordinary powers by the
Constitution of India.
National Emergency (Art. 352)
• Under Article 352, the President can declare a national emergency when the security of
India or a part of it is threatened by war, external aggression or armed rebellion. The 44th
Amendment Act of 1978 substituted the words ‘armed rebellion’ for ‘internal disturbance’.
Thus, it is no longer possible to declare a National Emergency on the ground of ‘internal
disturbance’.
• It may be noted that the President can declare a national emergency even before the
actual occurrence of war or external aggression or armed rebellion, if he is satisfied that
there is an imminent danger.
• The President can also issue different proclamations on grounds of war, external aggression,
armed rebellion, or imminent danger thereof, whether or not there is a proclamation
already issued by him and such proclamation is in operation. This provision was added by
the 38th Amendment Act of 1975.
• When a national emergency is declared on the ground of ‘war’ or ‘external aggression’, it is
known as ‘External Emergency’. On the other hand, when it is declared on the ground of
‘armed rebellion’, it is known as ‘Internal Emergency’.
• A proclamation of national emergency may be applicable to the entire country or only a
part of it. The 42nd Amendment Act of 1976 enabled the President to limit the operation of
a National Emergency to a specified part of India.
• The President can proclaim a national emergency only after receiving a written
recommendation from the Cabinet. This means that the emergency can be declared only on
the concurrence of the Cabinet and not merely on the advice of the Prime Minister. The
44th Amendment Act of 1978 introduced this safeguard to eliminate any possibility of the
Prime Minister alone taking a decision in this regard.
• The 38th Amendment Act of 1975 made the declaration of a National Emergency immune
from the judicial review. But, this provision was subsequently deleted by the 44th
Amendment Act of 1978. Further, in the Minerva Mills case (1980), the Supreme Court held
that the proclamation of a national emergency can be challenged in a court on the ground
of malafide or that the declaration was based on wholly extraneous and irrelevant facts or
is absurd or perverse.
• The proclamation of National Emergency must be approved by both the Houses of the
Parliament within one month from the date of its issue. Originally, the period allowed for
approval by the Parliament was two months, but it was reduced by the 44th Amendment
Act of 1978.
o However, 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.
o If the Lok Sabha stands dissolved at the time of the declaration of emergency, then it
must be approved by the reconstituted Lok Sabha within thirty days from its first sitting,
provided the Rajya Sabha has approved it in the meantime.
• After approval by both the Houses of Parliament, the emergency continues for six months,
and can be extended to an indefinite period with an approval of the Parliament for every six
months. This provision for periodical Parliamentary approval was also added by the 44th
Amendment Act of 1978.

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All such resolutions must be passed by a special majority, that is, majority of the total Student Notes:
membership of that house and majority of not less than two-thirds of the members of that
House present and voting (this special majority provision was also introduced by the 44th
Const. Amendment, 1978).
• The declaration of National Emergency brings about a lot of changes in the constitutional
set up of the country.
o The immediate effect of such a declaration is that the federal structure of the
country is folded to a unitary one for purposes of uniformity of administration. The
law making power of Parliament is extended to the items in the State list.
o The President acquires certain extra ordinary powers. He can issue directions or
instructions to any State indicating the manner in which their executive power is to
be exercised.
o He is also empowered to rearrange the distribution of revenues between the union
and the states to ensure availability of sufficient funds to the central government.
o The fundamental rights granted to the citizens can be reasonably restricted in the
greater interest of the country. However, such restrictions are withdrawn
immediately after the revocation of emergency. Also, the life of the Parliament may
be extended by a year.
Note: Kindly refer to the Vision IAS ‘Emergency Provisions’ document
State Emergency or President’s Rule (Arts. 356 and 365)
• President’s Rule is also known as ‘State Emergency’ or ‘Constitutional Emergency’.
• It can be imposed under Article 356 on two grounds - one mentioned in Article 356 itself,
i.e. failure of constitutional machinery in the States, and another in Article 365 i.e., failure
to comply with or to give effect to directions given by the Union. It is under these that the
President proclaims President’s Rule.
• Art 356 provides that if the President of India, on receipt of report from the Governor of a
State or otherwise, is satisfied that a situation has arisen in which the government of a
State cannot be carried on in accordance with the provisions of the Constitution, he may
declare State Emergency. Such a proclamation may be made by the President, where a
State has failed to implement any central directive. Since any dislocation in State
administration might affect the national integrity, the provision of President’s rule has been
provided as a safeguard against such a situation.
• The proclamation should be approved within two months by both the Houses of
Parliament. Thereafter, it remains in force for six months. It can be extended for a
maximum period of three years with the approval of Parliament, every six months.
• When the President’s Rule is imposed in a state, the President dismisses the State Council
of Ministers, headed by the Chief Minister (however, the powers of the High Court are not
affected). The State Governor, on behalf of the President, carries on the State
administration with the help of the Chief Secretary of the State, or the advisors appointed
by the President.
• Further, the President either suspends or dissolves the State Legislative Assembly. The
powers of the State Legislature in that case are exercised by the Parliament. The Parliament
may also delegate these powers to the President.
This type of emergency has been invoked on several occasions since 1951. The 44th
Constitutional Amendment Act has provided that such a proclamation can be challenged in a
court of law to check its misuse.
In the famous S. R. Bommai case, the Supreme Court held that the Presidential proclamation
imposing state emergency is subject to judicial review.

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Financial Emergency Student Notes:

• The President proclaims Financial Emergency under article 360, if he is satisfied that the
financial stability or credit of India, or any part thereof is threatened.
• This proclamation must be approved within two months from the date of its issue by the
Parliament. If the Lok Sabha is dissolved within that period of two months, the
proclamation has to be approved within thirty days of the first sitting of the newly
constituted Lok Sabha. It can continue for an indefinite period till it is revoked by the
President.
• During the period of Financial Emergency, the President can give directions to the States to
observe the canons of financial propriety. He can issue directions to reduce the salaries and
allowances of all or any class of persons serving under the State, or the Union including the
judges of the Supreme Court and High Court.
• All money and financial bills passed by the State Legislature can be reserved for the
President’s consideration during the period of Financial Emergency.
A state of Financial Emergency has not been declared so far in the country.
2.6.4. Financial Powers
• Money bills can be introduced in the Parliament, only with the President’s prior
recommendation.
• No demand for a grant can be made except on his recommendation.
• The President causes to be laid before the Parliament the Annual Financial Statement i.e.
the Union Budget.
• The President can make advances out of the Contingency Fund of India to meet any
unforeseen expenditure.
• The President constitutes a Finance Commission after every five years to recommend the
distribution of revenues between the Centre and the States.
2.6.5. Diplomatic Powers
The President enjoys wide diplomatic powers over foreign or external affairs. For the purpose of
maintaining ties with the other countries, he appoints diplomatic representatives like
Ambassadors or High Commissioners to those countries. The diplomatic representatives of
other foreign countries also present their credentials to him before taking up their assignments
in this country. The President also represents India in international forums and affairs.
Also, international treaties and agreements are negotiated and concluded on behalf of the
President. However, they are subject to approval of the Parliament.
2.6.6. Military Powers
The President is the supreme commander of the defence forces of India. In that capacity, he
appoints the Chiefs of Army, Navy and Air Force. He can declare war or conclude peace, subject
to the approval of Parliament.
2.6.7. Judicial Powers
• The President appoints the Chief Justice and the Judges of Supreme Court and High Courts.
• He can seek advice from the Supreme Court on any question of law or fact (Article 143). But
the advice given by the Supreme Court is not binding on the President.
2.6.8. Pardoning Powers
Article 72 mentions that:
1) The President shall have the power to grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the sentence of any person convicted of any
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a) in all cases where the punishment or sentence is by a Court Martial; Student Notes:
b) in all cases where the punishment or sentence is for an offence against any law relating
to a matter to which the executive power of the Union extends;
c) in all cases where the sentence is a sentence of death.
2) Nothing in sub clause (a) of Clause (1) shall affect the power to suspend, remit or commute
a sentence of death exercisable by the Governor of a State under any law for the time being
in force.
Meaning of these terms can be understood as:
Pardon: It removes both the sentence and conviction and completely absolves the convict from
all sentences, punishments and disqualifications.
Reprieve: It implies a stay of the execution of a sentence (especially that of death) for a
temporary period. Its purpose is to enable the convict to have time to seek pardon or
commutation from the President.
Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some
special fact, like physical disability of a convict or the pregnancy of a woman offender.
Remission: It implies reducing the period of sentence without changing its character. For
example, a sentence of rigorous imprisonment for two years may be remitted to rigorous
imprisonment for one year.
Commutation: It denotes the substitution of one form of punishment for a lighter form. For
example, a death sentence may be commuted to rigorous imprisonment, which in turn may be
commuted to a simple imprisonment.
Note that the pardoning power of the President is independent of the judiciary – it is an
executive power. The President while exercising this power doesn’t sit as a Court of Appeal. The
object of conferring this power to President is twofold:
• To keep the door open for correcting any judicial errors in the operation of the law
• To afford relief from a sentence, which the President regards as unduly harsh.
Scope of Judicial Review
Maru Ram case, 1980
In Maru Ram case 1980, the Supreme Court declared that the power of the President under
Article 72 is subject to judicial review. It maintained that the power cannot be exercised in an
arbitrary manner.
Recent Judgment in Shatrughan Chauhan vs. Union of India (2014)
In this case, the Supreme Court has held that:
1. Inordinate delay can be a justified ground for commutation of death penalty into life
imprisonment.
2. Psychiatric conditions developed during incarceration are grounds for clemency.
3. It ruled against the solitary confinement of death row prisoners.
4. At least 14 days prior notice to be given to family members prior to execution.
5. It is not a mere prerogative of the President and the decision is subject to judicial review.
6. It is a constitutional obligation of the President and Governors to dispose off mercy
petitions of convicts.
7. Right to seek mercy is a constitutional right, which cannot be subject to whims and fancies
of the executive.
8. Though no time limit can be prescribed, it is the duty of the executive to expedite the
matter at every stage.

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9. Article 21 is available till last breath, even after the mercy petition has been rejected. And Student Notes:
the convict can still approach the courts for commutation on the grounds of supervening
events.
10. Legal aid to be made available at all stages.
11. Rejection to be intimated at the earliest. It should be intimated to the nearest legal aid
center apart from informing the convict.
12. The person has the right to seek judicial review. After the rejection of mercy petition, the
judiciary has the power to even invalidate a President’s decision, if there is evidence of
biasness.
Comparison with Pardoning Powers of the Governor
According to Article 161, the Governor of a State also possesses powers to grant pardons and
suspend, remit or commute the sentence of any person convicted of an offence against a law
relating to a matter to which the executive power of the State extends. It means that the
governor has pardoning powers, in cases, where conviction is under a law of that State.
The scope of pardoning power of the President under Article 72 is wider than the pardoning
power of the Governor under Article 161. Their powers differ in the following two ways:
• The power of the President to grant pardon extends to cases where the punishment or
sentence is by a Court Martial. But, Article 161 does not provide any such power to the
Governor.
• The President can grant pardon in all cases where the sentence given is a sentence of
death, but pardoning power of the Governor does not extend to death sentence cases.
The Tamil Nadu government has decided to release seven prisoners convicted in the Rajiv
Gandhi assassination case. The Supreme Court had earlier commuted the death sentence of
the convicts to life term. The Centre has also filed a writ in the case questioning the State
government’s decision. The Centre has made the contention that since the prisoners were
convicted under a Central Act like TADA, the decision of the State government is not legally
tenable.
2.6.9. Veto Power
The President of India is vested with the following three types of veto power.
Absolute Veto
It refers to the power of the President to withhold his assent to a bill passed by the Parliament.
The bill then ends and does not become an act. Usually, this veto is exercised in the following
two cases:
a) With respect to private members' bills (i.e. bills introduced by any Member of Parliament
who is not a minister); and
b) With respect to the government bills, when the Cabinet resigns (after the passage of the
bills, but before the assent by the President) and the new Cabinet advises the President not
to give his assent to such bills
In 1954, President Rajendra Prasad withheld his assent to the PEPSU Appropriation Bill. The bill
was passed by the Parliament, when the President’s Rule was in operation in the state of
PEPSU. But, when the bill was presented to the President for his assent, the President’s Rule
was revoked.
Again in 1991, President R Venkataraman withheld his assent to the Salary, Allowances and
Pension of Members of Parliament (Amendment) Bill. The bill was passed by the Parliament (on
the last day before dissolution of Lok Sabha) without obtaining the previous recommendation
of the President.

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Suspensive Veto Student Notes:

The President exercises this veto when he returns a bill for reconsideration of the Parliament.
However, if the bill is passed again by the Parliament with or without amendments and again
presented to the President, it is obligatory for the President to give his assent to the bill. This
means that the Presidential veto is overridden by a re-passage of the bill by the same ordinary
majority (and not a higher majority as required for Qualified Veto in U.S.A.).
The President does not possess this veto in the case of Money bills. The President can either
give his assent to a money bill or withhold his assent to a money bill, but cannot return it for
the reconsideration of the Parliament. Normally, the President gives his assent to the money
bill, as it is introduced in the Parliament with his previous permission.
President A.P.J. Abdul Kalam, in 2006 returned the Office of Profit Bill for reconsideration of the
Parliament. This was an exercise of the Suspensive Veto power.
Pocket Veto
In this case, the President neither ratifies nor rejects or returns the bill, but simply keeps the bill
pending for an indefinite period. This power of the President to not take any action (either
positive or negative) on the bill is known as the Pocket Veto. The President can exercise this
veto power as the Constitution does not prescribe any time limit within which he has to take
the decision with respect to a bill presented to him for his assent.
In USA, on the other hand, the President has to return the bill for reconsideration within 10
days. Hence, it is remarked that the ‘pocket of the Indian President is bigger than that of the
American President’.
In 1986, President Zail Singh exercised the pocket veto with respect to the Indian Post Office
(Amendment) Bill. The bill, passed by the Rajiv Gandhi Government, imposed restriction on the
freedom of press.
It should be noted here that the President has no veto power in respect of a Constitutional
Amendment Bill. The 24th Constitutional Amendment Act of 1971 made it obligatory for the
President to give his assent to a constitutional amendment bill.
2.6.10. Ordinance-Making Power
Article 123 of the Constitution empowers the President to promulgate ordinances when the
Parliament is not in session and hence, it is not possible to enact laws in the Parliament. These
ordinances have the same force and effect as an act of Parliament, but are in the nature of
temporary laws.
An ordinance may relate to any subject that the Parliament has the power to legislate on.
Conversely, it has the same limitations as the Parliament to legislate, given the distribution of
powers between the Union, State and Concurrent Lists. Thus, the following limitations exist
with regard to the Ordinance making power of the executive:
i. Parliament is not in session: The President can only promulgate an ordinance when either
of the two Houses of Parliament is not in session.
ii. Immediate action is required: The President can promulgate an ordinance only when he is
satisfied that there are circumstances that require taking ‘immediate action’. In Cooper case
(1970), the Supreme Court held that the President’s satisfaction can be questioned in a
court on the ground of malafide. This means that the decision of the President to issue an
ordinance can be questioned in a court on the ground that the President has prorogued
one House or both Houses of Parliament deliberately with a view to promulgate an
ordinance on a controversial subject, so as to bypass the parliamentary decision and
thereby circumventing the authority of the Parliament.
iii. Parliamentary approval during Session: Ordinances must be approved by Parliament

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within six weeks of reassembling or they shall cease to operate. They will also cease to Student Notes:
operate, in case, resolutions disapproving the Ordinance are passed by both the Houses.
iv. Coextensive with the law-making powers of the Parliament: The ordinance-making power
is coextensive as regards all matters except duration, with the law-making powers of the
Parliament. This has two implications:
a) An ordinance can be issued only on those subjects on which the Parliament can make
laws.
b) An ordinance is subject to the same constitutional limitation as an act of Parliament.
Hence, an ordinance cannot abridge or take away any of the fundamental rights.
The President may withdraw an ordinance at any time. However, his power of ordinance-
making is not a discretionary power, and he can promulgate or withdraw an ordinance only on
the advice of the Council of Ministers headed by the Prime Minister.
An ordinance may have retrospective effect and may modify or repeal any act of Parliament, or
even another ordinance. It may also amend or alter a tax law, but can never be used to amend
the Constitution.
The rules of Lok Sabha require that whenever a bill seeking to replace an ordinance is
introduced in the House, a statement explaining the circumstances that had necessitated
immediate legislation by ordinance should also be placed before the House.

The ordinance-making power of the President of India is rather unusual and not found in most
of the democratic Constitutions of the world including that of USA and UK. This power has been
given to the President to enable the Executive to deal with a situation that may suddenly and
immediately arise when the Parliament is not in session.

DC Wadhwa vs. State of Bihar, 1987

It was argued in DC Wadhwa vs. State of Bihar (1987) that the legislative power of the executive
to promulgate Ordinances is to be used in exceptional circumstances and not as a substitute for
the law making power of the legislature.
Here, the court was examining a case where a State government (under the authority of the
Governor) continued to re-promulgate ordinances, i.e. it repeatedly issued new ordinances to
replace the old ones; instead of laying them before the State Legislature. A total of 259
Ordinances were re-promulgated, some of them for as long as 14 years.
The Supreme Court argued that if Ordinance making was made a usual practice, creating an
‘Ordinance Raj’, the courts could strike down re-promulgated Ordinances.
Scope of Judicial Review
Judiciary can go for following tests in order to check the legality of Ordinances:
• Both houses are not in session
• It has been done in public interest
• They’ll also test the reasonableness
• They can verify whether its arbitrary or vague

2.7. Constitutional Position of the President

The Constitution of India has provided for a Parliamentary form of government. Consequently,
the President has been made only a nominal executive; the real executive being the Council of
Ministers, headed by the Prime Minister. In other words, the President has to exercise his
powers and functions with the aid and advice of the Council of Ministers headed by the Prime
Minister.

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In estimating the constitutional position of the President of India, the relevant provisions are Student Notes:
Article 53, 74, and 75.
• Art. 53 vests the executive power of the Union in the President and shall be exercised by
him either directly or through officers subordinate to him in accordance with the
Constitution.
• Article 74 provides that there shall be a Council of Ministers with the Prime Minister as the
head to aid and advice the President who ‘shall’, in the exercise of his functions, act in
accordance with such advice.
• Art 75 lays down that the Council of Ministers shall be collectively responsible to the House
of People. This provision is the foundation of the Parliamentary system of government.
There was no doubt in minds of the framers of the Constitution that they were setting up a
Parliamentary form of Government, modeled after the Great Britain. Dr. Ambedkar categorically
stated in the Constituent Assembly, "the President is merely a nominal figure head" that "he
has no power of administration at all" and that the President of India occupies the same
position as the King of England. His place in the administration was that of a ceremonial device
or a seal by which the decisions of the nation were to be made known.
Though the executive power is vested in the President; he is only a formal or constitutional
head of the Executive. The real power is vested in the Council of Ministers (headed by Prime
Minister) on whose aid and advice the President acts in the exercise of his functions. The
Executive has the primary responsibility for the formulation of Governmental policy and its
transmission into law. It is responsible for all its action to the legislature, whose confidence it
must retain. The basis of this responsibility is embodied in Article 75(iii).
The President is generally bound by the advice of his ministers. He can do nothing contrary to
their advice nor can he do anything without their advice.
The President's role as a figurehead is reflected in his indirect election. If he were to be elected
by adult franchise, then it might have been anomalous not to give him any real powers and it
was feared that he might emerge as a center of power in his own right. Since power was really
to reside in the Ministry and the Legislature and not in the President, it was thought adequate
to have him elected directly.
2.7.1. Forty-second Amendment of the Constitution, 1976
The amendment removed all doubts about the position of the President under the Indian
Constitution. Art. 74 as amended, categorically provided that "there shall be a Council of
Ministers with the Prime Minister at the head to aid and advise the President who shall in
exercise of his functions, act in accordance with such advice”. Under this Amendment, the
President could not play the role of even an adviser or a guide.
2.7.2. Forty-fourth Amendment of the Constitution, 1978
A proviso was added in Art. 74 to the effect 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". The result is that the
President has to act on the advice of the Ministers, but he can ask them to reconsider their
advice and if after reconsideration, the Ministers decided to act against the advice of the
President they can do so and the President has no choice but to follow it.
2.7.3. Situational Discretion available to the President
Although, as Article 74 provides, the President is bound to act according to the aid and advice
of the Council of Ministers; it will, however, be wrong to suppose that the President is a
complete non-entity or an absolutely ineffective symbol. It has already been seen that in
exceptional and abnormal situations he may have a marginal discretion in some matters, for
example:

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• The President may choose to dissolve the Lok Sabha when the current government loses Student Notes:
majority.
• He can dismiss the Council of Ministers, which has lost its majority.
• The President can appoint a Prime Minister in a situation, where no single party or leader
commands majority support. This is very significant, especially at the time of a fragmented
electoral verdict.
In days of crisis, any of these matters may assume a great importance and his decision may
have a profound impact on the country's destiny.
In addition, he is empowered to be informed about the country's affairs. Article 78 provides
that it shall be the duty of the Prime Minister:
a) 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;
b) to furnish such information relating to the administration of the affairs of the Union and
proposals for legislation as the President may call for; and
c) 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
d) Like the British Sovereign, the role of the President is "to advice, encourage and warn"
Ministers in respect of the recommendations which they make.
Under Article 111, the President has discretion with respect to ordinary bills. He can send the
bill back for reconsideration along with his message, if any. However, once the bill is sent back
to him after re-passage with or without amendments, he must give his assent.
After the 44th Amendment Act, the President can even send back for reconsideration the advice
of Cabinet. However, he’s bound to act on its advice tendered thereafter such reconsideration.
President K.R. Narayanan became the first President to use the powers of sending the advice
back for reconsideration. The advice given to him was to impose President’s Rule in U.P. against
the Kalyan Singh government. Since then a kind of convention has developed that if a President
sends an advice back to Cabinet for reconsideration, it is not sent back to the President.
Former President Venkatraman has explained the nature of discretionary power of the
President under the Constitution. The President in the Indian context was like the 'emergency
light', which automatically came on when the normal flow of power was broken and went out
after normal working was restored.
Conclusion
The influence of the President depends on his personality, and a man of character and ability
can really exert a potent influence on the affairs of the government. The President can make
his influence felt by his advice, help and persuasion by using his knowledge, experience and
disinterestedness to arrive at sound decisions on matters affecting the well-being of people
and not by his dictating any particular course of action to his ministers.
Ultimately, it is the Council of Ministers, which shall prevail and not the President. The
President's role may at best be advisory; he may act as the guide, philosopher and friend to the
Ministers, but cannot assume to himself the role of their master- a role, which is assigned to
the Prime Minister. The intention of the makers of the Constitution was that the President
should be a center from which a beneficent influence should radiate over the whole
administration. It was clearly not their intention that he should be the focus of any power.

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2.8. Impeachment of the President Student Notes:

An impeachment is a quasi-judicial procedure in Parliament. The President can be removed

from his office by the process of impeachment for ‘violation of the Constitution’. However, the
Constitution does not define the meaning of the phrase ‘violation of the Constitution’.
The impeachment charges can be initiated by either House of Parliament. These charges should
be signed by one-fourth members of the House (that framed the charges), and a 14 days’ notice
should be given to the President. After the impeachment resolution is passed by a majority of
two-thirds of the total membership of that House, it is sent to the other House, which should
investigate the charges.
The President has the right to appear and to be represented at such investigation. If the other
House also sustains the charges and passes the impeachment resolution by a majority of two-
thirds of the total membership, then the President stands removed from his office from the
date on which the resolution is so passed.
Since the Constitution provides the mode and ground for removing the President, he cannot be
removed otherwise than by impeachment, in accordance with the terms of Arts. 56 and 61.
2.8.1. Explanation
Impeachment is so rare that the term can be misunderstood. A typical misconception is to
confuse it with involuntary removal from office.
The word 'Impeachment' originates from the British convention, which means to remove a
Government official without any official agreement and after the impeachment conviction has
been provided to that official. In India, it is a quasi-judicial procedure and only the President can
be impeached on the ground of violation of the Constitution. In this context, it is to be noted
that:
• The Nominated members of either House of Parliament can participate in the impeachment
of the President though they do not participate in his election.
• The Elected members of the Legislative Assemblies of States and the Union Territories of
Delhi and Puducherry do not participate in the impeachment of the President though they
participate in his election.
So far, no President has been impeached in India.

2.9. List of Presidents of India

Name Tenure
Dr Rajendra Prasad January 26, 1950 - May 13, 1962
Dr Sarvepalli Radhakrishnan May 13, 1962 - May 13, 1967
Dr Zakir Hussain May 13, 1967 - May 03, 1969
Varahagiri Venkatagiri (Acting) May 03, 1969 - July 20, 1969
Justice Mohammad Hidayatullah (Acting) July 20, 1969 - August 24, 1969
Varahagiri Venkatagiri August 24, 1969 - August 24, 1974
Fakhruddin Ali Ahmed August 24, 1974 - February 11, 1977
B.D. Jatti (Acting) February 11, 1977 - July 25, 1977
Neelam Sanjiva Reddy July 25, 1977 - July 25, 1982
Giani Zail Singh July 25, 1982 - July 25, 1987
R. Venkataraman July 25, 1987 - July 25, 1992
Dr Shankar Dayal Sharma July 25, 1992 - July 25, 1997
K.R. Narayanan July 25, 1997 - July 25, 2002
Dr. A.P.J. Abdul Kalam July 25, 2002 - July 25, 2007
Smt. Pratibha Devisingh Patil July 25, 2007 - July 25, 2012
Shri Pranab Mukherjee July 25, 2012 - July 25, 2017
Shri Ram Nath Kovind July 25, 2017 - Incumbent

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Prelims questions Student Notes:

2018
1. If the President of India exercises his power as provided under Article 356 of the
Constitution of a particular State, then
(a) the Assembly of the State is automatically dissolved.
(b) the powers of the Legislature of that State shall be exercisable by or under the
authority of the Parliament.
(c) Article 19 is suspended in that State.
(d) the President can make laws relating to that State.
Ans: (b)

2. With reference to the election of the President of India, consider the following
statements:
1. The value of the vote of each MLA varies from State to State.
2. The value of the vote of MPs of the Lok Sabha is more than the value of the vote of
MPs of the Rajya Sabha.
Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2
Ans: (a)

2017
3. Which of the following are not necessarily the consequences of the proclamation of the
President’s Rule in a State?
1. Dissolution of the state legislative assembly
2. Removal of Council of Ministers in State
3. Dissolution of the local bodies
Select the correct code:
(a) 1 and 2 only
(b) 1 and 3 only
(c) 2 and 3 only
(d) 1, 2 and 3
Ans: (b)

2014
4. Consider the following statements:
1. The President shall make rules for the more convenient transaction of the business
of the Government of India, and for the allocation among Ministers of the said
business.
2. All executive actions of the Government of India shall be expressed to be taken in
the name of the Prime Minister.
Which of the following is correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2
Ans: (a)

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2012 Student Notes:

5. According to the Constitution of India, it is the duty of the President of India to cause to
be laid before the Parliament which of the following?
1. The Recommendation of the Union Finance Commission.
2. The Report of the Public Accounts Committee.
3. The Report of the Comptroller and Auditor General.
4. The Report of the National Commission for Scheduled Castes.
Select the correct answer using the codes given below:
(a) 1 only
(b) 2 and 4 only
(c) 1, 3 and 4 only
(d) 1, 2, 3 and 4
Ans: (c)

2010
6. Who of the following shall cause every recommendation made by the Finance
Commission to be laid before each House of Parliament?
(a) The President of India
(b) The Speaker of Lok Sabha
(c) The Prime Minister of India
(d) The Union Finance Minister
Ans: (a)
Article 281 {Recommendations of the Finance Commission}: The President shall cause
every recommendations made by the Finance Commission under the provisions of this
Constitution together with an explanatory memorandum as to the action taken
thereon to be laid before each House of Parliament.

2009
7. With reference to Union Government consider the following statements:
1. The Ministries/Departments of the Government of India created by the Prime
Minister on the advice of the Cabinet Secretary.
2. Each of the Ministries is assigned to a Minister by the President of India on the
advice of the Prime Minister.
Which of the statement given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2
Ans: (b)
The Government of India consists of a number of ministries/departments for its
administration, each Ministry assigned to a Minister who runs it with the assistance of
a Secretary in charge of the particular Ministry. The Ministries are created and assigned
by the President on the advice of the Prime Minister under Article 77 of the
Constitution.

2003
8. Under which Article of the Indian Constitution did the President give his assent to the
ordinance on electoral reforms when it was sent back to him by the Union Cabinet
without making any changes (in the year 2002)?
(a) Article 121 (b) Article 122
(c) Article 123 (d) Article 124
Ans: (c)

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9. Under which Article of the Indian Constitution did the President make a reference to Student Notes:
the Supreme Court to seek the Court’s opinion on the Constitutional validity of the
Election Commission’s decision on deferring the Gujarat Assembly elections (in the year
2002)?
(a) Article 142
(b) Article 143
(c) Article 144
(d) Article 145
Ans: (b)

10. Consider the following statements:

In the electoral college for Presidential Election in India.
1. The value of the vote of an elected Member of Legislative Assemble equals State
Population / Number of Elected MLAs of the State x 100.
2. The value of the vote of an elected Member of Parliament equals Total Value of the
votes of all elected MLAs / Total Number of elected MPs.
3. There were more than 5000 members in the latest elections.
Which of these statements is/are correct?
(a) 1 and 2
(b) Only 2
(c) 1 and 3
(d) Only 3
Ans: (b)

3. Vice President
3.1. Introduction
The Vice-President occupies the second highest office in the country. He is accorded a rank next
to the President in the official warrant of precedence. This office is modeled on the lines of the
American Vice-President.

3.2. Qualifications
To be eligible for election as Vice-President, a person should fulfill the following qualifications:
1. He should be a citizen of India.
2. He should have completed 35 years of age.
3. He should be qualified for election as a member of the Rajya Sabha.
4. He should not hold any office of profit under the Union government or any state
government or any local authority or any other public authority.
But, a sitting President or Vice-President of the Union, the governor of any state and a minister
for the Union or any state is not deemed to hold any office of profit and hence qualified for
being a candidate for Vice-President. MPs and MLAs are eligible for contesting the election of
Vice-President but if such a person is elected as Vice-President then he is deemed to have
vacated his seat in that House (no separate resignation is required) on the date he enters upon
his office as Vice-President. Further, the nomination of a candidate for election of Vice-
President must be proposed by 20 electors and seconded by 20 electors as well.

3.3. Election
The Vice President, like the President, is elected not directly by the people but by the method
of indirect election. He is elected by the members of an electoral college consisting of the
members of both Houses of Parliament. Thus, this Electoral College is different from the
electoral college for the election of the President in the following two respects:

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1. It consists of both elected and nominated members of the Parliament (in the case of Student Notes:
President, only elected members).
2. It does not include the members of the state legislative assemblies (in the case of
President, the elected members of the state legislative assemblies are included).
But, the manner of election is same in both the cases. Thus, the Vice-President’s election, like
that of the President’s election, is held in accordance with the system of proportional
representation by means of the single transferable vote and the voting is by secret ballot.

3.4. Term of Office

The Vice-President holds office for a term of five years from the date on which he enters upon
his office. However, he can resign from his office at any time by addressing the resignation
letter to the President. The Vice-President can hold office beyond his term of five years until his
successor assumes charge. He is also eligible for re-election to that office. He may be elected
for any number of terms.

3.5. Vacancy in Office

A vacancy in the Vice-President’s office can occur in any of the following ways:
1. On the expiry of his tenure of five years.
2. By his resignation.
3. On his removal.
4. By his death.
5. Otherwise, for example, when he becomes disqualified to hold office or when his election is
declared void.
When the vacancy is going to be caused by the expiration of the term of the sitting Vice-
President, an election to fill the vacancy must be held before the expiration of the term.
If the office falls vacant by resignation, removal, death or otherwise, then election to fill the
vacancy should be held as soon as possible after the occurrence of the vacancy. The newly
elected Vice-President remains in office for a full term of five years from the date he assumes
charge of his office.

3.6. Powers and Functions

The functions of Vice-President are two-fold:
1. He acts as the ex-officio Chairman of Rajya Sabha. In this capacity, his powers and functions
are similar to those of the Speaker of Lok Sabha. In this respect, he resembles the American
Vice-President who also acts as the Chairman of the Senate – the Upper House of the
American legislature.
2. He acts as President when a vacancy occurs in the office of the President due to his
resignation, removal, death or otherwise. He can act as President only for a maximum
period of six months within which a new President has to be elected. Further, when the
sitting President is unable to discharge his functions due to absence, illness or any other
cause, the Vice-President discharges his functions until the President resumes his office.
While acting as President or discharging the functions of President, the Vice-President does not
perform the duties of the office of the chairman of Rajya Sabha. During this period, those
duties are performed by the Deputy Chairman of Rajya Sabha.

3.7. Removal of Vice President

He can also be removed from the office before completion of his term. A formal impeachment
is not required for his removal. He can be removed by a resolution of the Rajya Sabha passed by
an effective majority and agreed to by the Lok Sabha. But, no such resolution can be moved

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unless at least 14 days’ advance notice has been given. Notably, no ground has been mentioned Student Notes:
in the Constitution for his removal.

3.8. Comparison with the USA Vice President

Though the office of Indian Vice-President is modelled on the lines of American Vice-President
there is a big difference i.e. an American Vice-President becomes President in case of a vacancy
in President’s office and remains president for the remaining unexpired term of his predecessor
while Indian Vice-President in case of a vacancy in President’s office merely serves as an acting
president until the newly elected president assume charge. Thus it is clear that the constitution
has not assigned any significant function to the Vice-President and this office is mainly created
to maintain the political continuity of Indian state.
Prelims Questions
2013
1. Consider the following statements:
1. The Chairman and the Deputy Chairman of the Rajya Sabha are not the members of
that House.
2. While the nominated members of the two Houses of the Parliament have no voting
right in the presidential election, they have the right to vote in the election of the
Vice President.
Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2
Ans: (b)

2008
2. Who among the following have held the office of the Vice-President of India?
1. Mohammad Hidayatullah
2. Fakhruddin Ali Ahmed
3. Neelam Sanjiva Reddy
4. Shankar Dayal Sharma
Select the correct answer using the code given below:
(a) 1, 2, 3 and 4
(b) 1 and 4 only
(c) 2 and 3 only
(d) 3 and 4 only
Ans: (b) Vice-Presidents of India:
Name Tenure
Dr Sarvepalli Radhakrishnan 1952-1962
Dr Zakir Hussain 1962-1967
Varahagiri Venkata Giri 1967-1969
Gopal Swarup Pathak 1969-1974
B.D. Jatti 1974-1979
Justice Mohammad Hidayatullah 1979-1984
R. Venkataraman 1984-1987
Dr Shankar Dayal Sharma 1987-1992
K.R. Narayanan 1992-1997
Krishan Kant 1997-2002
Bhairon Singh Shekhawat 2002-2007
Mohammad Hamid Ansari 2007-2017
Muppavarapu Venkaiah Naidu August 11, 2017 - Incumbent

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Fakhruddin Ali Ahmed (May 13, 1905- February 11, 1977) was President of India from Student Notes:
1974 to 1977.
Neelam Sanjiva Reddy (May 19, 1913- June 1, 1996) was the sixth President of India,
serving from 1977 to 1982.
2004
3. The resolution for removing the Vice-President of India can be moved in the
(a) Lok Sabha alone
(b) Either House of Parliament
(c) Joint Sitting of Parliament
(d) Rajya Sabha alone
Ans: (d)

4. Prime Minister
In the scheme of parliamentary system of government provided by the Constitution, the
President is the nominal executive authority (dejure executive) and Prime Minister is the real
executive authority (defacto executive). It means, the President is the head of the State while
Prime Minister is the head of the government.
Conventionally some specific ministries/departments are not allocated to anyone in the cabinet
but the Prime Minister himself. The Prime Minister is usually in-charge/head of:
• Appointments Committee of the Cabinet;
• Ministry of Personnel, Public Grievances and Pensions;
• Ministry of Planning;
• Department of Atomic Energy; and
• Department of Space

4.1. Appointment of the Prime Minister

The Constitution does not contain any specific procedure for the selection and appointment of
the Prime Minister. Article 75 says only that the Prime Minister shall be appointed by the
President. However, this does not imply that the President is free to appoint any one as the
Prime Minister.
In accordance with the conventions of the parliamentary system of government, the President
has to appoint the leader of the majority party in the Lok Sabha as the Prime Minister. But,
when no party has a clear majority in the Lok Sabha, then the President may exercise his
personal discretion in the selection and appointment of the Prime Minister. In such a situation,
the President usually appoints the leader of the largest party or coalition in the Lok Sabha as
the Prime Minister and asks him to seek a vote of confidence in the House within a month.

4.2. Term of the Prime Minister

The term of the Prime Minister is not fixed and he holds office during the pleasure of the
president. However, this does not mean that the president can dismiss the Prime Minister at
any time. So long as the Prime Minister enjoys the majority support in the Lok Sabha, he cannot
be dismissed by the President. However, if he loses the confidence of the Lok Sabha, he must
resign or the President can dismiss him. For example, VP Singh in 1990 and Deve Gowda in
1997 resigned after defeat in the Lok Sabha.

4.3. Powers and Functions of the Prime Minister

The powers and functions of Prime Minister can be studied under the following heads:

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4.3.1. In Relation to the Council of Ministers Student Notes:

• The Prime Minister recommends persons who can be appointed as ministers by the
President. The President can appoint only those persons as ministers who are
recommended by the Prime Minister.
• He can allocate and also change the portfolios among the ministers according to his will.
• If a difference of opinion arises between the Prime Minister and any of his subordinate
ministers, he can ask the minister to resign or can advise the President to dismiss him.
• The Prime Minister presides over the meeting of the Council of Ministers and also
influences the decision of the meeting.
• He guides, directs, controls and coordinates the activities of all the ministers.
• By resigning from office, the Prime Minister can bring about the collapse of the Council of
Ministers.
4.3.2. In Relation to the President
• Prime Minister is the principal channel of communication between the President and the
council of minister. He communicates to the President all decisions of the council of
ministers relating to administration of the affairs of the Union and proposals for legislation.
• He furnishes such information relating to administration of the affairs of the Union and
proposals for legislation as the President may call for and if the President so requires, Prime
Minister submits 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 advises the President regarding the appointment of important officials like 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 etc.
4.3.3. In Relation to Parliament
• The Prime Minister is the leader of the Lower House i.e. the Lok Sabha. He advices the
President with regard to summoning and proroguing of the sessions of the Parliament.
• He can recommend dissolution of the Lok Sabha to President at any time.
• He announces government policies on the floor of the house.
4.3.4. Other Powers and Functions
• The P.M. is the chairman of the NITI Aayog, National Developmental Council, National
Integration Council, Inter-State Council, and National Water Resources Council.
• He plays a significant role in shaping the foreign policy of the country.
• He is the chief spokesman of the Union government.
• He is the crisis manager-in-chief at the political level during emergencies.
• As a leader of the nation, he meets various sections of people in different states and
receives memoranda from them regarding their problems, and so on.
• He is the leader of the party in power.
• He is the political head of the (administrative) services.

4.4. Prime Minister as member of the Rajya Sabha

The Constitution does not prohibit the Prime Minister from being a member of the Rajya Sabha.
However, the highest traditions of the parliamentary democracy demand that the Prime
Minister be a member of the Lok Sabha, who is directly elected by the people; rather than be a
member who has been elected indirectly.
There have also been arguments that the Constitution should be amended to stipulate
categorically that the Prime Minister of the Union should be an elected member of the Lok
Sabha. For instance, in UK the Prime Minister has to be necessarily a member of the House of
Commons.

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4.5. Prime Ministerial Form of Government Student Notes:

The role of the Prime Minister in the parliamentary form of government is so significant and
crucial that observers like to call it a ‘Prime Ministerial government.’. Further, sometimes the
Prime Minister can have a powerful national image, thereby, attracting huge votes and further
alleviate his standing. It is then argued to have led to transformation of cabinet government
into Prime Ministerial government.
In this form of government, the Prime Minister dominates the executive. This is usually the case
when there is a single party government in power and the Prime Minister is the unquestionable
leader of the party. In such a scenario, the decisions of the Prime Minister are usually approved
by the Cabinet. However, they may not be collective decisions, in the true sense of the term.
Such form of government may have following advantages and disadvantages:
Advantages Disadvantages
Timely decisions Decisions may be hasty and politically motivated
Govt. can act firmly on issues Decisions often not arrived at, after due deliberation
Administration gets a clear direction Extra constitutional authorities may come to exercise
influence
In Germany, the powerful position of the Chancellor diminishes the role of the cabinet. The
prime ministerial government in Germany is called the “Chancellor Democracy.” The Chancellor
answers to Parliament and the ministers answer to him/her. But the Indian Prime Minister is
accountable to Parliament, to the people, and to his/her own party. Article 74(1) of our
Constitution expressly states that the Prime Minister shall be “at the head” of the Council of
Ministers and should aid and advise the President in the exercise of his functions

4.6. Impact of Coalition Politics on the office of PM

Generally, it is being witnessed that the authority of PM weakens when he heads a coalition
government as witnessed in the UPA-2 government (2009-14) or NDA government of 1999-
2004. This is because a coalition government is usually formed in case there is a fractured
mandate.
CMs who became PMs:
Many a times, the members of the constituent parties start 1. Morarji Desai
treating their leader as the PM, rather than the actual PM. 2. Charan Singh
3. V.P.Singh
However, this phenomenon varies with the personality of the 4. P.V. Narasimha Rao
PM, nature of coalition politics, and the manner in which it is 5. H.D. Deve Gowda
managed, which also plays an important role. The role of the 6. Narendra Modi
PM, in such cases, becomes more of a manager of the coalition,
rather than a leader of the party alone.
Prelims Questions
2019
1. The Ninth Schedule was introduced in the Constitution of India during the prime
ministership of
(a) Jawaharlal Nehru
(b) Lal Bahadur Shastri
(c) Indira Gandhi
(d) Morarji Desai
Ans: (a)

2015
2. Consider the following statements :
1. The Executive Power of the Union of India is vested in the Prime Minister.
2. The Prime Minister is the ex Officio Chairman of the Civil Services Board.

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 Which of the statements given above is/are correct ? Student Notes:
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1nor 2
Ans: (d)
The Executive Power of the Union Vested in the President.
Cabinet Secretary is the ex-officio chairman of the Civil Services Board.

2012
3. The Prime Minister of India, at the time of his/her appointment:
(a) Need not necessarily be a member of one of the Houses of the Parliament but must
become a member of one of the Houses within six months
(b) Need not necessarily be a member of one of the Houses of the Parliament but must
become a member of the Lok Sabha within six months
(c) Must be a member of one of the Houses of the Parliament
(d) Must be a member of the Lok Sabha
Ans: (a)

2009
4. In India, who is the Chairman of the National Water Resources Council?
(a) Prime Minister
(b) Minister of Water Resources
(c) Minister of Environment and Forests
(d) Minister of Science and Technology
Ans: (a)

5. Under the administration of which one of the following is the Department of Atomic
Energy?
(a) Prime Minister’s Office
(b) Cabinet Secretariat
(c) Ministry of Power
(d) Ministry of Science and Technology
Ans: (a)

2006
6. Who is the President of the Council of Scientific and Industrial Research?
(a) President of India
(b) Vice-President of India
(c) Prime Minister of India
(d) Union Minister of Science and Technology
Ans: (c)

5. Central Council of Ministers

As the Constitution of India provides for a parliamentary system of government modelled on
the British pattern, the council of ministers headed by the prime minister is the real executive
authority is our politico- administrative system.
The principles of parliamentary system of government are not detailed in the Constitution, but
two Articles (74 and 75) deal with them in a broad, sketchy and general manner. Article 74
deals with the status of the council of ministers while Article 75 deals with the appointment,
tenure, responsibility, qualification, oath and salaries and allowances of the ministers.

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5.1. Appointment and Tenure of the Council of Ministers Student Notes:

Article 74
• 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.
• The advice tendered by Ministers to the President shall not be inquired into in any court.
Article 75
• 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.
• A minister who is not a member of the Parliament (either house) for any period of six
consecutive months shall cease to be a minister.
• The total number of ministers, including the Prime Minister, in the Council of Ministers
shall not exceed 15% of the total strength of the Lok Sabha. This provision was added by
the 91st Amendment Act of 2003.
• A member of either House of Parliament belonging to any political party who is disqualified
on the ground of defection shall also be disqualified to be appointed as a minister. This
provision was also added by the 91st Amendment Act of 2003.
• 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.
• The President shall administer the oaths of office and secrecy to a minister.
• Parliament will decide the salary and allowances of the Ministers.
Ministers may be chosen from members of either House and a Minister who is a member of
one House, has the right to speak in and to take part in the proceedings of the other House,
though he has no right to vote in the House of which he is not member.

5.2. Composition of the Council of Ministers

Following are the four categories of Ministers in the Council of Ministers:
1. Cabinet Ministers: Cabinet Ministers are those Ministers who hold very important
portfolios like Defence, Home, Finance and Foreign Affairs, etc. They are highest in status,
emoluments, and powers. It is these Ministers who constitute the Cabinet, which has been
described as a wheel within a wheel (Council of Ministers). Their number varies from time
to time, but seldom exceeds twenty. Cabinet Ministers collectively formulate the policy of
the Government and are entitled to attend all meetings of the Cabinet. Occasionally, senior
leaders are included in the Cabinet as Ministers without portfolio.
2. Ministers of State: They are next in rank and can either be given independent charge of
ministries/departments or can be attached to Cabinet Ministers. In case of independent
charge, they perform the same functions and exercise the same powers in relation to their
ministries/departments as cabinet ministers do. However, they are not members of the
Cabinet and attend Cabinet meetings only when specially invited and when affairs of their
departments are to be considered.
3. Deputy Ministers: Deputy Minister, who are next in rank to Ministers of State do not hold
independent charge of any department and perform such functions as the Minister-in-
charge may delegate to them.
4. Parliamentary Secretaries: They have no independent powers or functions. They assist the
Ministers to whom they are attached in the Parliamentary work. They are, in fact,
probationers under training and may hope to rise to higher ranks if they do well.

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5.3. Functions of the Council of Ministers Student Notes:

• The main functions of the council of ministers are mainly to aid and advise the President in
the exercise of his functions.
• Since the ministry is the highest organ of the Government of India, it determines all the
policies relating to the country`s administration. It also has the responsibility of formulating
internal and foreign policies. Peace and prosperity of the country depends largely on the
policy formulated by the Ministry.
• The ministers are not only the head of the executive departments, but are also important
members of the majority party in the legislature or at least having majority support in the
legislature.
• The Ministry also plays a key role in determining the economic activity of the state.
Currency, banking, commerce, trade, insurance and formulation and implementation of
other plans are regulated and controlled by the Ministry as well.

6. Cabinet
The cabinet works on the principle of political homogeneity, The Prime Minister and the
members of the Council of Ministers belong to the same party except in rare cases. Collective
responsibility obliges the ministers to hold the same views and to champion the same policy.
Differences between ministers are ironed out in the closed door meetings of the cabinet. In
public, they must give the impression of solid unity.

6.1. Functions of the Cabinet

1. Policy Formulation: The Cabinet is responsible for policy formulation, both with regard to
national and international matters. All policy decisions are taken by consensus and are
conveyed by the Prime Minister to the President.
2. Legislative Powers: All the Ministers are Members of Parliament and, thus, participate in
legislation. Most of the Bills are introduced in the Parliament by the Ministers and are
always passed by the Parliament because of the support they enjoy. The Bills to be
introduced by the Ministers are considered by the Cabinet and then approved. The Cabinet
may make such changes in the Bills as it thinks are necessary.
3. Financial Powers: The Cabinet is responsible for all expenses of the Government and the
sources of revenue to finance the expenditure.
• The annual budget prepared by the Finance Minister is controlled by the Cabinet. Here,
it may be noted that the budget proposals are kept strictly secret and the Finance
Minister takes the Cabinet into confidence only an hour before the introduction of the
budget in Parliament. The Cabinet cannot make any changes in the budget. But in the
light of discussion on the budget proposals in the Parliament, the Cabinet makes
alterations. The alterations, thus made, are subsequently announced by the Finance
Minister.
• The Cabinet is responsible for approving the economic and fiscal policies and also for
taking decisions on the reports submitted by the Finance Commission and the
Comptroller and Auditor-General of India.
4. Power of making Appointments: Although the President enjoys vast powers of appointing
high dignitaries of the State but in reality these appointments are made by the President on
the recommendation of the Cabinet. The advice of the Cabinet is binding on the President
and virtually all the functions of the President are performed by this body.
However, the President may ask the Cabinet to reconsider its advice, but only once. The
advice given after reconsideration is binding on the President (44th const. Amendment
Act).
5. Coordination for smooth functioning: The Cabinet not only co-ordinates the work of
various departments but also resolves the inter-departmental disputes. M.V. Pylee calls the

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 Cabinet “the formulator of national policies, the highest appointing authority, the arbiter of Student Notes:
inter-departmental disputes and the supreme organ of co-ordination in Government”.

6.2. Cabinet Committees

To relieve the Cabinet of some burden of work, Cabinet committees have been set up. The N.
Gopalaswamy Ayangar’s report on the Reorganization of the Machinery of Government (1949)
recommended setting up of Standing Committees (permanent in nature) of Cabinet over
defined fields, with appropriate strengthening of the secretariat and other organs of these
committees. These were the instruments to ‘organise coordination on a decentralised basis’.
The Cabinet Committees should cover between them all important areas of government
activity. It is also essential that they meet regularly so that sustained attention is given to
complex problems and the progress of implementing important policies and programmes is
kept under constant review.
The number and names of the Cabinet committees do not remain unchanged, as Ad-hoc
committees are constituted from time to time to deal with certain problems and are disbanded
after the completion of task. But three or four such committees have existed under all
Governments in power at the Centre, namely
a) Political Affairs Committee: It is chaired by the Prime Minister. Its other members include
the Home Minister, the Defence Minister, and the External Affairs Minister. The committee
deals with all important matters relating to both internal developments and foreign
relations.
b) Economic Affairs Committee: Its members are the Prime Minister (Chairman), Finance
Minister, Rural Development Minister, and Industry Minister. Its main function is to direct
and co-ordinate Governmental activities in the economic field and generally to regulate the
working of the national economy.
c) Committee on Parliamentary Affairs: Its members include Information and Broadcasting
Minister, Minister for Labour and Parliamentary Affairs, Law Minister, with the Home
Minister as its chairman. The committee looks after the progress of Government business in
Parliament to secure the smooth passage of legislation and determine the Government’s
attitude to non-official Bills and resolutions coming up before Parliament.
d) Appointments Committee: The members of the Appointment Committee are the Prime
Minister who is also its chairman, the Home Minister and the Minister concerned. It
decides all higher-level appointments in the Central Secretariat, Public Enterprises, Banks,
the three service chiefs etc. It also decides on the transfer of officers serving on Central
deputation.
In 2019, the government set up two new Cabinet Committees:
1. 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. It will also monitor the progress of such
projects.
2. Cabinet Committee on Employment and Skill Development
• It is supposed to provide direction to all policies, programmes, 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.

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 • It is required to enhance workforce participation, foster employment growth and Student Notes:
identification, and work towards removal of gaps between requirement and availability
of skills in various sectors.
• The panel will set targets for expeditious implementation of all skill development
initiatives by the ministries and to periodically review the progress in this regard.

6.3. Features of Cabinet Committees

1. They are extra-constitutional in emergence. In other words, they are not mentioned in the
Constitution. However, the Rules of Business provide for their establishment.
2. They are of two types—standing and ad hoc. The former are of a permanent nature
while the latter are of a temporary nature. The ad hoc committees are constituted from
time to time to deal with special problems. They are disbanded after their task is
completed
3. They are set up by the Prime Minister according to the exigencies of the time and
requirements of the situation. Hence, their number, nomenclature, and composition varies
from time to time
4. Their membership varies from three to eight. They usually include only Cabinet Ministers.
However, the non-cabinet Ministers are not debarred from their membership.
5. They not only include the Ministers in charge of subjects covered by them but also include
other senior Ministers.
6. They are mostly headed by the Prime Minister. Sometimes other Cabinet Ministers,
particularly the Home Minister or the Finance Minister, also acts as their Chairman. But, in
case the Prime Minister is a member of a committee, he invariably presides over it.
7. They not only sort out issues and formulate proposals for the consideration of the Cabinet,
but also take decisions. However, the Cabinet can review their decisions.
8. They are an organisational device to reduce the enormous workload of the Cabinet. They
also facilitate in-depth examination of policy issues and effective coordination. They are
based on the principles of division of labour and effective delegation.

6.4. Principles on which the Cabinet system of Government

functions
6.4.1. Principle of Collective Responsibility
The Parliamentary form of government is based on the principle of Collective Responsibility.
Article 75(3) of the Constitution states that the Council of Ministers (CoM) is collectively
responsible to the Lok Sabha, not to the Council of States (Rajya Sabha). It means that all the
Ministers are collectively answerable to the Lok Sabha for the policies and decisions of the
government, even though a decision taken may pertain to a single ministry.
The individual ministers may have differences among themselves on certain issues, but once a
decision is taken by the Cabinet it becomes a joint decision of all the Ministers. It is the duty of
every minister to stand by cabinet decisions and support them both within and outside the
Parliament. If a minister does not agree with the decision of the cabinet he has no choice, but
to resign. Thus, the Council of Ministers works as a team. It swims or sinks together.
Thus, if the Lok Sabha passes a no-confidence motion against the Council of Ministers, all the
ministers have to resign, including ministers from the Rajya Sabha. Alternatively, the CoM can
advice the President to dissolve the Lok Sabha on the ground that the House does not
represent the views of the electorate faithfully and call for fresh elections.
6.4.2. Individual Responsibility of Ministers
Article 75 also contains the principle of individual responsibility. Article 75(2) states that the
ministers hold office during the pleasure of the President, which means that the President can

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remove a minister even at a time when the CoM enjoys the confidence of the Lok Sabha. Student Notes:
However, the President removes a minister only on the advice of the Prime Minister.
6.4.3. Role of the Prime Minister
The Prime minister is the keystone of the cabinet arch. He is central to the formation of the
Council of Ministers, central to its life and death. If the Prime Minister resigns or dies the whole
Council of Ministers goes out along with him. The Prime Minister is the “primus inter pares”
(first among equals). It is he who summons and presides over meeting of the Cabinet.
Moreover, he can remove a minister at any time by demanding a minister’s resignation or
having him dismissed by the President.
The Prime Minister acts as the connecting link between the President and the Cabinet. Article
78 of the Constitution lays down that it is duty of the Prime Minister to communicate to the
President all decisions of the Council of Ministers and to furnish such information relating to
the administration of the affairs of the Union. The Prime Minister is also the main link between
the Cabinet and Parliament.
Prelims Questions
2017
1. Out of the following statements, choose the one that brings out the principle
underlying the Cabinet form of Government:
(a) An arrangement for minimizing the criticism against the Government whose
responsibilities are complex and hard to carry out to the satisfaction of all.
(b) A mechanism for speeding up the activities of the Government whose
responsibilities are increasing day by day.
(c) A mechanism of parliamentary democracy for ensuring collective responsibility of
the Government to the people.
(d) A device for strengthening the hands of the head of the Government whose hold
over the people is in a state of decline.
Ans: (b)

2013
2. In the context of India, which of the following principles is/are, implied institutionally in
the parliamentary government?
1. Members of the Cabinet are Members of the Parliament.
2. Ministers hold the office till they enjoy confidence in the Parliament.
3. Cabinet is headed by the Head of the State.
(a) 1 and 2 only
(b) 3 only
(c) 2 and 3 only
(d) 1, 2 and 3
Ans: (a)

3. Consider the following statements:

1. The Council of Ministers in the Centre shall be collectively responsible to the
Parliament.
2. The Union Ministers shall hold the office during the pleasure of the President of
India.
3. The Prime Minister shall communicate to the President about the proposals for
legislation.
Which of the statements given above is/are correct?
(a) 1 only
(b) 2 and 3 only

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 (c) 1 and 3 only Student Notes:
(d) 1, 2 and 3
Ans: (b)

4. With reference to Union Government, consider the following statements:

1. The Constitution of India provides that all Cabinet Ministries shall be compulsorily
the sitting members of Lok Sabha only
2. The Union Cabinet Secretariat operates under the direction of the Ministry of
Parliamentary Affairs.
Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2
Ans: (d)

2007
5. Assertion (A): The Council of Ministers in the Union of India is collectively responsible
both to the Lok Sabha and the Rajya Sabha.
Reason (R): The Members of both the Lok Sabha and the Rajya Sabha are eligible to be
the Ministers of the Union Government.
Ans: (a) (A is incorrect, R is correct)
The Council of Ministers in the Union of India is collectively responsible to the lower
house of the Parliament, i.e. Lok Sabha only.

7. Attorney General
Attorney General is the highest law officer in the country. He is appointed by the President. He
must be a person who is qualified to be appointed a Judge of the Supreme Court. In other
words, he must be a citizen of India and must have been a judge of some high court for five
years or an advocate of some high court for ten years or an eminent jurist, in the opinion of the
President.
The term of the AG is not fixed. Further, the Constitution does not contain the procedure and
grounds for his removal. He holds office during the pleasure of the President. This means that
he may be removed by the President at any time. He may also quit by submitting his resignation
to the President. Conventionally, he resigns when the government (council of minister) resigns
or is replaced, as he is appointed on its advice.
The remuneration of the AG is not fixed by the Constitution. He receives such remuneration as
the President may determine.

7.1. Duties of Attorney-General

As the chief law officer of the GoI, the duties of the Attorney-General include:
a) To give advice to the government of India upon such legal matters, which are referred to
him by the President.
b) To perform such other duties of a legal character that are assigned to him by the President.
c) To discharge the functions conferred on him by the Constitution or any other law.
Accordingly, the President has assigned the following duties to the Attorney-General:
a) To appear on the behalf of the Government of India in all cases in the Supreme Court in
which the Government of India is concerned.
b) To represent the Government of India in any reference made by the President to Supreme
Court under Art. 143 of the Constitution (power of President to consult Supreme Court)

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c) To appear (when required by the Government of India) in any high court in any case in Student Notes:
which the Government of India is concerned.

7.2. Rights and Limitations

In the performance of his official duties, the Attorney General has the right of audience in all
courts in the territory of India. He has the right to speak and to take part in the proceedings of
both the Houses of Parliament or their joint sitting or any committee of the Parliament of which
he may be named a member, but without a right to vote. He enjoys all the privileges and
immunities that are available to a member of Parliament. There are some limitations placed on
AG as well, such as
• He should not advise or hold a brief against the Government of India.
• He should not advise or hold a brief in cases in which he is called upon to advice or appear
for the Government of India.
• He should not defend accused persons in criminal prosecution without the permission of
the Government of India.
• He should not accept appointment as a director in any company or corporation without the
permission of the Government of India.
However, he does not fall in the category of government servant and he is not debarred from
private legal practices. There are also present the offices of Solicitor General of India and
Additional Solicitor General of India (extra constitutional) to assist the Attorney General of India
in the fulfillment of his official responsibilities.
In 2017, the Delhi HC ruled that the office of Attorney General (AGI) does not come under the
ambit of RTI Act as it is not a public authority under section 2(h) of the act.

Section 2(h): “Public authority” means any authority or body or institution of self-government
established or constituted—
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government, and includes any—
(i) body owned, controlled or substantially financed;
(ii) non-Government Organisation substantially financed, directly or indirectly by funds provided
by the appropriate Government.

Prelims Questions
2013
1. Consider the following statements:
Attorney General of India can
1. take part in the proceedings of the Lok Sabha
2. be a member of a committee of the Lok Sabha
3. speak in the Lok Sabha
4. vote in the Lok Sabha
Which of the statements given above is/are correct?
(a) 1 only
(b) 2 and 4
(c) 1, 2 and 3
(d) 1 and 3 only
Ans: (c)

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 STATE EXECUTIVE Student Notes:

Contents
1. Introduction ............................................................................................................................... 2
2. Governor .................................................................................................................................... 2
2.1. Appointment ....................................................................................................................... 2
2.1.1. Why the Governor is appointed and not elected......................................................... 2
2.1.2. Conditions for Appointment of the Governor and his Office....................................... 3
2.2. Removal............................................................................................................................... 3
2.3. Powers and Functions of the Governor .............................................................................. 4
2.3.1. Executive Powers.......................................................................................................... 4
2.3.2. Legislative Powers ........................................................................................................ 4
2.3.3. Financial Powers........................................................................................................... 5
2.3.4. Judicial Powers ............................................................................................................. 5
2.3.5. Mercy Powers ............................................................................................................... 5
2.3.6. Emergency Powers ....................................................................................................... 6
2.3.7. Special Powers and Responsibilities of Governor ........................................................ 6
2.3.8. Discretionary Functions of the Governor ..................................................................... 7
2.4. Constitutional Position of a Governor................................................................................. 7
2.5. Contemporary Relevance of the Office of Governor .......................................................... 7
2.6. Contemporary Issues .......................................................................................................... 8
2.6.1. Role of Governor in a Hung Assembly.......................................................................... 8
2.6.2. Appointment and removal of Governor by the Centre ................................................ 8
2.6.3. Issues related to Dissolution of State Assemblies by the Governor............................. 9
3. Chief Minister ............................................................................................................................. 9
3.1. Powers and Functions of the Chief Minister ..................................................................... 10
3.1.1. In Relation to the Council of Ministers....................................................................... 10
3.1.2. In Relation to the Governor ....................................................................................... 10
3.1.3. In Relation to State Legislature .................................................................................. 10
4. Council of Ministers ................................................................................................................. 11
4.1. Appointment of Council of Ministers ................................................................................ 11
4.2. Relationship between Governor and his Ministers ........................................................... 11
5. The Advocate-General.............................................................................................................. 11
5.1. Appointment ..................................................................................................................... 12
5.2. Qualifications .................................................................................................................... 12
5.3. Remuneration ................................................................................................................... 12
6. Previous Year UPSC Mains Questions ...................................................................................... 12
7. Vision IAS GS Mains Test Series Questions............................................................................... 12

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1. Introduction Student Notes:

The State Executive is organized on the same pattern as the Union Executive, with the Governor
at the apex, followed by the Chief Minister, the Council of Ministers and the Advocate General
of the State. The State Executive is dealt with, in Articles 153 to 167, in Part VI of the
Constitution.

2. Governor
The Governor is the chief executive of the State and his position is analogous to that of the
President at the Centre. Despite being a nominal executive head (titular or constitutional head),
the Governor has “a right to be consulted, to warn and encourage” and his role is
overwhelmingly that of a “friend, philosopher and guide” to his Council of Ministers. Under this
role, he also functions as a sentinel of the Constitution and a live link with the Union.
The Constitution, under Article 153, provides for a Governor for each state. However, the Article
was amended by the Seventh Constitutional Amendment (1956), which came as a result of the
State Reorganization Commission and currently, the same person may be appointed as
Governor of two or more states.

2.1. Appointment
It is the President who appoints the Governor by warrant under his hand and seal and the
Governor holds the office in accordance with the President’s pleasure. In a way, the Governor
is a nominee of the Central Government. Also, while the Governor’s prescribed office term is
five years, he may be removed at any time by the President.
The founding fathers envisaged the institution of Governor as a non-political office, acting as an
organic link between the Centre and the State. But, this has not been followed in practice, and
instead something similar to a spoils system has been followed. There have been arguments
that the Governor’s office is used as a post retirement reward for politicians and retired
bureaucrats.
The First Administrative Reforms Commission emphasized on healthy conventions. The Raja
Mannar Committee, appointed by the Tamil Nadu government, suggested the following:
• The CM of the concerned state must be consulted before appointing a person as the
Governor
• If the CM is against such an appointment, that person should not be appointed.
This was supported by the Sarkaria Commission and Punchhi Commission on Center-State
Relations. However, this practice has hardly been followed.
2.1.1. Why the Governor is appointed and not elected
In the Draft Constitution, the framers of the Constitution had decided upon an elected
Governor for each of the States. This decision was in conformity with their idea of giving each
State the maximum autonomy as Units of a Federation. However, within two years, the
Constituent Assembly decided to abandon this idea in favor of an appointed Governor and this
was provided for in the Constitution too. Following are the arguments cited in favor of this
move:
1. In a Parliamentary system of Government a popularly elected Governor does not fit well. If
the Governor is elected directly by the people, he becomes a direct representative of the
people and may very well exercise his powers, not as the constitutional head of the State,
but as its real head.
2. Such a position is very likely to create a rivalry between the Governor and the Council of
Ministers, whose members are also directly elected by the people.

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3. Instead of the Governor being elected directly by the people, if he is elected by the State Student Notes:
Legislature, there seems to be not much chance of a rivalry between him and the Ministry.
This is because the Ministry is responsible to the same legislature which has elected the
Governor. Also, there will exist a grave danger of the Governor becoming a pawn in the
hands of political parties that secure his election.
4. Either a directly or an indirectly elected Governor is unlikely to fit into a highly centralized
system of government. For, the Governor in either case is a representative of the State who
receives his authority from the people of the State. In case of a conflict between the State
and the Union, such a Governor is not likely to act as a convenient instrument of the Union
Government. On the other hand, the Governor may create difficulties in the path of the
Union's authority extending in any form to the State's sphere. This is not in harmony with
the idea of emergency powers, under which the Union becomes all-powerful and the
federal system ceases to function.
2.1.2. Conditions for Appointment of the Governor and his Office
Qualifications: The Constitution lays down the following two qualifications for the appointment
of a person as a Governor:
• He should be a citizen of India
• He should have completed the age of 35 years.
The Constitution also lays down the following conditions for Governor’s office:
• The Governor cannot be a member of either House of the Parliament or any of the State
Legislatures.
• If a Member of a Legislature is appointed as the Governor of any State/s, he shall
immediately cease to be a Member upon such appointment.
• The Governor cannot hold any office of profit.
• The Parliament determines the emoluments and allowances payable to him and also his
free official residence. These emoluments and allowances should not be diminished during
his term of office.
• The Chief Justice of the concerned High Court administers the oath of office to the
Governor of that State. In the absence of the Chief Justice of the High Court, the oath is
administered by the senior-most available Judge of the concerned High Court.
• The Governor can be transferred from one State to another by the President. He can resign
any time by addressing his resignation to the President. The Legislature of a State does not
have any role in removing the Governor from his post.
In case, the same person is appointed as the Governor of two or more states, the President of
India determines the emoluments and allowances payable to him, in a proportion, among the
States concerned.

2.2. Removal
Ordinarily, the term of office of Governor is 5 years, but he remains in office during the
pleasure of the President. The term of a Governor’s office can be terminated earlier by:
1. Dismissal by the President at whose ‘pleasure’ he holds the office [Article 156(1)]
2. Resignation [Article 156(2)]
The grounds on which a Governor may be removed are not specified in the Constitution.
Hence, it is assumed that such powers shall be sparingly used by the President. It has been
observed by the Punchhi Commission that the practice of treating Governors as “political
footballs” must stop and the institution must be given a fixed term and safeguards to prevent
politicization.

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2.3. Powers and Functions of the Governor Student Notes:

The Governor’s powers and functions can be studied under the following heads:
1. Executive Powers
2. Legislative Powers
3. Financial Powers
4. Judicial Powers
5. Mercy (Pardoning) Powers
6. Emergency Powers
2.3.1. Executive Powers
• The executive power of the State is vested in the Governor and is to be exercised by him
either directly or through officers subordinate to him in accordance with the Constitution
(Art. 154).
• All executive actions of the government of a State are formally taken in the Governor’s
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 appoints the Chief Minister, the other subordinate ministers, the Advocate General of
the State and they hold office during his pleasure.
• The Governor appoints the State Election Commissioner and his conditions of service and
tenure of office. However, the SEC can be removed only in manner and on the grounds as a
Judge of a High Court.
• He appoints the Chairman and members of the State Public Service Commission. However,
they can be removed by the President of India and not by the Governor.
• He can seek any information relating to the administration of the affairs of the state and
proposals for legislation from the Chief Minister.
• He can make a recommendation to the President to impose constitutional emergency in the
state under Article 356.
• He acts as the chancellor of universities in the state. He also appoints the vice-chancellors
of universities in the state.
2.3.2. Legislative Powers
• The Governor of the State summons or prorogues the state legislature and he can dissolve
the State Legislative Assembly.
• When both the offices of the Speaker and the Deputy Speaker fall vacant then the Governor
appoints any member of the State’s Legislative Assembly to preside over its proceedings.
• After a bill is passed in the state legislature, the Governor can give his assent to the bill, or
withhold his assent. He can return the bill (if it is not a money bill) for reconsideration of
the State Legislature. He can reserve the bill for the President’s consideration.
• The Governor can reserve for the President’s consideration any bill passed by the State
Legislature, which endangers the position of the State High Court. Further, he can also
reserve the bill if it is of the nature of ultra-virus, i.e., against the Constitution’s provisions,
if it is opposed to the Directive Principles of State Policy (DPSP), if it is against the larger
interest of the country, if it is of grave national importance, and if the bill is of the nature of
dealing with compulsory acquisition of property under article 31A of the Constitution.
• The Governor nominates one member to the State Legislative Assembly from the Anglo-
Indian community; he nominates 1/6th of the members of the State Legislative Council from
amongst the persons having special knowledge or practical experience in literature, art,
science, cooperative movement and social service.
• He can promulgate ordinances when the State Legislature is not in session. These
ordinances must be approved by the State Legislature within six weeks from its reassembly.

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• He decides on the question of disqualification of the members of the State Legislature in Student Notes:
consultation with the Election Commission.
• The Governor of the State lays reports of the State Finance Commission, the State Public
Service Commission and the Comptroller and Auditor General relating to the accounts of
the State, before the State Legislature.
2.3.3. Financial Powers
• The Governor of the state confirms that the state budget or the Annual Financial Statement
is laid before the State Legislature.
• Money Bills can be introduced in the State Legislature only with the prior recommendation
of the Governor.
• Demand for a grant can be made only on the Governor’s recommendation.
• To meet any unforeseen expenditure, he can make advances out of the Contingency Fund
of the State.
• To review the financial position of the Panchayats and the Municipalities, the Governor
constitutes a Finance Commission in the state after every five years.
2.3.4. Judicial Powers
• The Governor is consulted by the President, while appointing the Judges of the concerned
State High Court.
• He makes appointments, postings and promotions of the district judges in consultation
with the State High Courts.
• He appoints persons to the judicial service of the state (other than the District Judges) in
consultation with the State High Court and the State Public Service Commission.
2.3.5. Mercy Powers
The Governor can grant pardons, reprieves, respites and remissions of punishment or suspend,
remit and commute the sentence of any person convicted of any offence, against any law
relating to a matter to which the executive power of the state extends. However, the pardoning
power of the Governor differs from that of the President in the manner that the President can
pardon death sentence, whereas the Governor cannot pardon a death sentence. However, the
Governor can suspend, remit or commute a death sentence if the death penalty is awarded in
respect of a state law. The pardoning powers of the Governor and the President also differ in
respect of the punishment or sentence by a court-martial where the President enjoys the
power to pardon, reprieve, remit, suspend or commute whereas the Governor does not possess
any power in this respect.
Recent Development
In 2016, Supreme Court struck down Tamil Nadu Government’s decision to release seven killers
of the former Prime Minister Rajiv Gandhi. The Constitutional Bench rejected Tamil Nadu’s
argument that the seven prisoners should not be robbed of their hope to be freed on
remission.
Grounds of the judgment
Supreme Court said that the Centre, and not the State, will have the “primacy” in deciding
whether remission should be granted to life-term convicts in the cases, which concerned the
CBI or any Central agency as in the case of Rajiv Gandhi killers.

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Significance of the Judgment Student Notes:

• Court has barred State governments from invoking their statutory remission power for the
premature release of those sentenced by a High Court or the Supreme Court to a specified
term above 14 years without remission.
• Rejection of the theory that every convict should have a ray of hope to be freed on the
grounds of remission
• The State government will now have to get the concurrence of the Centre in cases
investigated by Central agencies before it can use its power of remission to release convicts
• Prisoners cannot be released on the whims and fancies of politicians
• Hardened, remorseless criminals cannot be released even after 14 years of imprisonment
• The judgment will also settle the law on the power of State governments to remit
sentences, especially of prisoners condemned to death whose sentences have been
commuted to life.
2.3.6. Emergency Powers
The Governor has no emergency powers to meet the situation arising from external aggression
or armed rebellion like the President. However, he has the power to make a report to the
President whenever he 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. Hence, he may
invite the President to assume to himself the functions of the Government of the State or any
of them i.e. invite ‘President’s rule’.
2.3.7. Special Powers and Responsibilities of Governor
Some of the Governors may have to discharge certain special responsibilities also, under the
articles 371 to 371J. In this regard, the Governor, though has to consult the Council of Ministers
led by the Chief Minister, acts finally on his individual judgment or discretion. These special
cases are mentioned as follows:
• Maharashtra- Establishment of separate development boards for Vidarbha and
Marathwada.
• Gujarat- Establishment of separate development boards for Saurashtra and Kutch.
• Nagaland- With respect to law and order in the State for so long as the internal disturbance
in the Naga Hills Tuensang Area continues.
• Assam- With respect to the administration of the tribal areas.
• Manipur- With respect to the administration of the Hill areas in the state.
• Sikkim- For peace and for ensuring social and economic advancement of the different
sections of the population.
• Arunachal Pradesh- Regarding the law and order in the state.
• Karnataka- Establishment of a separate development board for Hyderabad-Karnataka
region.
Besides, Schedule VI of the Constitution that deals with the administration of tribal areas in
Assam, Meghalaya, Tripura and Mizoram, also accords special powers and responsibilities to the
Governor. He has the power to divide the areas inhabited by different scheduled tribes in an
autonomous district into autonomous regions. The governors of these states may also
reorganize boundaries of the tribal areas. They may choose to include or exclude any area,
increase or decrease the boundaries and unite two or more autonomous districts into one.
They can also alter or change the names of autonomous regions without separate legislation.
Governors of states that fall under the Sixth Schedule specify the jurisdiction of high courts for
each of these cases.

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2.3.8. Discretionary Functions of the Governor Student Notes:

• However, the Governor can act in his wisdom and discretion in certain cases. The Governor
has constitutional discretion in following cases: The Governor can act in his discretion in the
case of reservation of a Bill for the consideration of the President.
• He can give or withhold assent to Bills, return a Bill for reconsideration of the House
concerned or both the Houses, reserving it for the consideration of the President.
• He advises the President on the issue of the failure of the constitutional machinery and
recommends for the imposition of the President’s rule in the state concerned.
• He can use his discretion while exercising the functions as the administrator of an adjoining
Union Territory (in case of additional charge).
• He seeks information from the Chief Minister with regard to the administrative and
legislative matters of the state.
The Governor, like the President, also enjoys situational/circumstantial discretion, i.e. the
hidden discretion derived from the exigencies of a prevailing political situation in following
cases:
• The Governor can appoint a new Chief Minister in a situation where no single party or
leader commands majority support. He can dissolve the Assembly on the advice of a Chief
Minister who has lost majority support.
• He can dismiss a Ministry where the Ministry refuses to resign even after losing majority
support in the House or after being defeated on a non-confidence motion.

2.4. Constitutional Position of a Governor

As in the Centre, the Constitution of India provides for a Parliamentary form of government in
the States also. Similar to the President, the Governor at the State level exercises his powers
and functions with the aid and advice of the Council of Ministers headed by the Chief Minister,
except in matters in which he is required to act in his discretion. After the 42nd amendment,
ministerial advice has been made binding on the President, but no such provision has been
made with respect to the Governor. In other words, the Governor is a nominal executive; the
real executive is the Council of Ministers, headed by the Chief Minister in a state.
Constitutionally, Governor is the head of State, but practically he becomes the man of Centre in
the State.
Ideally, the institution of Governor is envisaged as an institution of “cooperative federalism” –
the link between the Centre and State. He can bring a national perspective to the State level
and concerns of the State to the Centre.
But in practice, it has become an institution of “bargaining federalism” – a mechanism available
to the Centre to bargain with the States.
The Office of Governor worked well till 1967 during the era of single party dominance both in
the Centre and the States. However, later this office has been repeatedly used for politically
motivated ends. Some experts call this the most abused office of the Constitution of India.

2.5. Contemporary Relevance of the Office of Governor

Though there have been suggestion for abolishing this office, but it continues to be relevant in
our federal setup. It has been given a key role of maintaining Constitutional governance in the
State. The dignity and independence of this Constitutional office warrants a fixed term and
impeachment on the same lines as the President. The Governor brings a national level
perspective to the state level actions and activities. The importance becomes even more
prominent in cases of outbreak of natural disasters, breakout of communal riots etc. The
Punchhi Commission has also emphasized the importance of the Office, especially in the
context of internal security challenges.

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2.6. Contemporary Issues Student Notes:

2.6.1. Role of Governor in a Hung Assembly

• In the context of government being formed by a non-majority party in Goa and Manipur, it
has once again questioned the discretion of Governor in calling a person to form a
government. Again this issue came to the fore after the recently concluded Karnataka
assembly elections.
• Article 164(1) provides for the appointment of chief minister by the Governor. The Supreme
Court clarified that there is no qualification mentioned in article 164(1) and reading it with
collective responsibility in 164(2), the only condition chief ministerial candidate need to
satisfy is that he/she should be commanding majority in the house.
• As for the appointment of Chief Minister, the Sarkaria Commission has recommended:
o The party or combination of parties with widest support in the Legislative Assembly
should be called upon to form the Government.
o If there is a pre-poll alliance or coalition, it should be treated as one political party and
if such coalition obtains a majority, the leader of such coalition shall be called by the
Governor to form the Government.
o In case no party or pre-poll coalition has a clear majority, the Governor should select
the CM in the order of preference indicated below:
▪ The group of parties which had pre-poll alliance commanding the largest number.
▪ The largest single party staking a claim to form the government with the support of
others.
▪ A post-electoral coalition with all partners joining the government.
▪ A post-electoral alliance with some parties joining the government and the
remaining supporting from outside.
• M.M. Punchhi Commission elaborated that the Governor should follow “constitutional
conventions” in a case of a hung Assembly.
• While SR Bommai case related to discretion of Governor does not apply to hung assembly
but it laid emphasis on floor test in the house within 48 hours (although it can be extended
to 15 days) so that legislature should decide the matter and Governor’s discretion should
merely be a triggering point.
The Governor must be true to the oath of office and must ensure that the person he/she invites
to be Chief Minister will be able to form a responsible and reasonably lasting government in the
State. Even Dr. B.R. Ambedkar in his speech described how a Governor should use his discretion
not as “representative of a party” but as “the representative of the people as a whole of the
State”.
2.6.2. Appointment and removal of Governor by the Centre
The qualifications of Governor are not mentioned in constitution. Thus, ex-bureaucrats, retired
CJI, active politicians etc. have been appointed as Governors. This leads to Governor being
committed to Centre.
Thus, recommendations of the Punchhi Commission on Role of Governor should be considered:
• It has given a set of criteria for the qualification of Governor to be included in Article 157:
▪ The Governor should, in the opinion of the President, be an eminent person;
▪ The Governor must be a person from outside the concerned State;
▪ The Governor should be a detached person and not too intimately connected with the
local politics of the State. Accordingly, the Governor must not have participated in
active politics at the Centre or State or local level for at least a couple of years before
his appointment.
• The tenure of office of the Governor must be fixed, say for a period of 5 years.

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• The phrase "during the pleasure of the President" may be deleted from Article 156 of the Student Notes:
Constitution.
• In B.P. Singhal vs. Union of India case, SC observed that power to remove Governor cannot
be exercised in an arbitrary, capricious or unreasonable manner. This power should only be
exercised in rare and exceptional circumstances for valid and compelling reasons.
• A provision may be made for the impeachment of the Governor by the State Legislature on
the same lines as the impeachment of the President by the Parliament.
• Governors should not be eligible for any further appointment or office of profit under the
Union or State Governments except a second term as Governor, or election as Vice-
President or President of India.
• Also, after quitting or laying down his office, the Governor shall not return to active partisan
politics.
2.6.3. Issues related to Dissolution of State Assemblies by the Governor
• Lack of Objective Criteria for untimely dissolution: While Article 174 gives powers to the
Governor to dissolve the assembly, but the Constitution is silent on as to when and under
what circumstances can the House can be dissolved.
• Political reasons being cited for Dissolution: Potential for political instability in the future
and to prevent emerging alliances is often used as a reason to dissolve state assemblies.
• Missing Political Neutrality in Governor’s Office: The post has been reduced to becoming
a retirement package for politicians for being politically faithful to the government of the
day. For e.g. Bihar State Assembly was dissolved by the Governor in 2005 on
apprehensions of “horse trading. Later the Supreme Court called the decision to be illegal
and mala fide.
Suggestions:
• Sarkaria Commission: The state assembly should not be dissolved unless the proclamation
is approved by the parliament. Sparing use of article 356 of the constitution should be
made. All possibilities of formation of an alternative government must be explored before
imposing presidential rule in the state.
• M M Punchhi Commission: The Governor should follow “constitutional conventions” in a
case of a hung Assembly. It suggested a provision of ‘Localized Emergency’ by which the
centre government can tackle issue at town/district level without dissolving the state
legislative assembly
Supreme Court Judgements:
• S.R. Bommai Case (1994): The court accorded primacy to a floor test as a check of
majority. The court also said that the power under Article 356 is extraordinary and must
be used wisely and not for political gain.
• Rameshwar Prasad Case (2006): Bihar Governor’s recommendation for dissolving the
Assembly the previous year was held to be illegal and mala fide. A Governor cannot shut
out post-poll alliances altogether as one of the ways in which a popular government may
be formed. The court had also said unsubstantiated claims of horse-trading or corruption
in efforts at government formation cannot be cited as reasons to dissolve the Assembly

3. Chief Minister
The Chief Minister of a State is the head of the government and is the real executive authority
(de facto executive).
The position of the Chief Minister of a State resembles that of the Prime Minister at the Centre.
Article 164 simply states that the Chief Minister shall be appointed by the Governor, but this
does not mean that the Governor is free to appoint any one as Chief Minister. Generally, the
leader of the majority party in the State Legislative Assembly is appointed by the Governor of

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the concerned State as the Chief Minister of that state. The Chief Minister’s oath is Student Notes:
administered by the Governor. In case, no political party has a clear majority in the assembly
then the Governor generally appoints the leader of party or coalition and asks him to seek a
vote of confidence in the House within a month.

3.1. Powers and Functions of the Chief Minister

The Powers and Functions of the Chief Minister can be studied under the following heads:
3.1.1. In Relation to the Council of Ministers
As the head of the Council of Ministers, the Chief Minister enjoys the following powers:
• The Governor appoints only those persons as Ministers who are recommended by the Chief
Minister.
• He allocates and reshuffles the portfolios among ministers.
• In case of difference of opinion the Chief Minister can advise the Governor to dismiss the
concerned minister or he can ask the minister to resign from his post
• The Chief Minister presides over the meetings of the council of ministers and influences its
decisions.
• The activities of all the ministers are guided, directed, controlled and coordinated by the
Chief Minister.
• As the Chief Minister is the head of the council of ministers, his resignation or death
automatically lead to the dissolution of the council of ministers. Thus he can bring about
the collapse of the council of ministers by resigning from his office.
3.1.2. In Relation to the Governor
The Chief Minister is the main channel of communication between the Governor and the
Council of Ministers. It is the duty of the Chief Minister:
• To communicate to the Governor all decisions regarding the proposals for legislation and
relating to the administration of the affairs of the state.
• To furnish the information relating to the administration of the affairs of the state and
proposals for legislation as the Governor may call for.
• If the Governor 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.
o He advises the Governor with regard to the appointment of important officials like the
Advocate-General of the State, Chairman and Members of the State Public Service
Commission, State Election Commissioner and the like.
3.1.3. In Relation to State Legislature
Regarding the Governor’s summoning and proroguing of the sessions of the State Legislature,
the Chief Minister of the State advices the Governor.
• He can, at any time, recommend the Governor for the dissolution of the State Legislative
Assembly.
• The Chief Minister of the State announces the government policies, on the floor of the
house of the State Assembly.
In addition to the above mentioned powers and functions, the Chief Minister enjoys some
other powers and functions also. They are mentioned below –
• He acts as a Vice-Chairman of the concerned Zonal Council by rotation, holding office for a
period of one year at a time.

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• The Chief Minister is a member of the Inter-State Council and the National Development Student Notes:
Council, both headed by the Prime Minister. He is the chief spokesperson of the State
government.
• He is the political head of the services; he is the leader of the party in power. As the leader
of the State, he meets various sections of people and receives memoranda from them
regarding all their problems, and so on.
• The Chief Minister acts as the crisis manager-in-chief at the political level during
emergencies.
Even though the Chief Minister plays a very important role in the state administration, the
Governor’s discretionary powers reduce to some extent the power, authority, influence,
prestige and role of the Chief Minister in the State administration.

4. Council of Ministers
According to Article 163, the Governor has to act on the advice of a Council of Ministers,
subject to his discretionary functions.

4.1. Appointment of Council of Ministers

The State Council of Ministers is headed by the Chief Minister. While the Chief Minister is
appointed by the Governor, the other Ministers are appointed by the Governor on the advice of
the Chief Minister. The Council of Ministers is collectively responsible to the Legislative
Assembly of the State and individually responsible to the Governor. The Ministers are publicly
accountable for the acts or conduct in the performance of duties.
Any person may be appointed a Minister provided he has the confidence of the Legislative
Assembly. However, he ceases to be a Minister if he does not remain a member of the State
Legislature for a period of six consecutive months. The salaries and allowances of Ministers are
governed by laws made by the legislature of the State.

4.2. Relationship between Governor and his Ministers

The relationship between the Governor and his Council of Ministers is analogous to the
relationship between the President and his ministers. However, it is important to highlight that
the President is not constitutionally empowered to exercise any function ‘in his discretion’.
While at the same time, it authorizes the Governor to exercise some functions ‘on his
discretion’.
Article 163(1) says
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 to exercise his functions or any of them in his discretion.
Because of this discretionary jurisdiction, no amendment was made to Article 163(1) by the
42nd Constitutional Amendment Act. Therefore, in exercise of the functions which the Governor
is empowered to act in his discretion, he will not be required to act according to the advice of
the Council of Ministers or even to seek their advice. If any question arises whether any matter
is or is not a matter wherein the Governor is required by the Constitution to act in his
discretion, the decision of the Governor shall be final. Furthermore, the validity of anything
done by the Governor shall not be called into question on the ground that he ought to or ought
not to have acted in his discretion.

5. The Advocate-General
Article 64 of the Indian Constitution provides for an Advocate General for the State. The
functions of the Advocate-General in respect of the State are similar to that of the Attorney
General in relation to the Centre.

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 GS MAINS PAPER-II
Polity
FEDERAL STRUCTURE & DEVOLUTION OF POWER

Federalism = A system of polity in which power is divided between Union and its constituent
units i.e. states.
Characteristics of federalism
• There should be two levels of governments, with each having its own independent sphere of
administrative and legislative competence;
• Each level of the government should have an independent tax base;
• A Written Constitution from which respective governments derive power;
• Existence of rigid constitution;
• An independent judiciary to adjudicate if conflict arises between the two tiers of government.

Federalism in India is argued to be somewhat a quasi-federal arrangement, i.e having a

unitary character, with many federal features. Art. 1 mentions that India is a Union of States,
unlike USA where states bargained and a federation was created. The overriding concern at the
time of drafting the Constitution was the "unity and integrity of India”, which led to a number of
factors that gave the Indian Constitution a decidedly unitary tilt. In the case of S.R. Bommai vs.
Union of India, Supreme Court advocated that federalism, like secularism, is a basic feature of
the Constitution.

Unitary Features
• Residuary powers are with the Union Government
• States can be created or diminished without their consent
• Concept of single citizenship, unlike that of USA
• All India Services officers head important positions in States
• The role of Governor in States is very important and he is appointed by the Central Govt
The system of audit is headed by the CAG, who is appointed by the Central Government
• The judges of High Courts are appointed by the President
• Emergency Provisions

Being federal in nature, our Constitution divides legislative, executive and financial powers
between the Centre and States. But, judicial powers are exercised by an integrated judicial
system, which enforces both the central and state laws.
 LEGISLATIVE RELATIONS (ARTS. 245 TO 255)
Territorial Jurisdiction
Parliament can make laws for whole or any part of the territory of India, sometimes extra-
territorial legislative powers applicable to the Indian citizens and their property in any part of the
world. A State can legislate only for their State and its laws are not applicable outside the State.
Sometimes, there is exception like the Governor is empowered to direct that an act of Parliament
does not apply to a Scheduled Area in the State or applies with specified modifications and
exceptions.
Subject Matter
It was adopted from Govt of India Act, 1935. These are—Union, State and Concurrent List
(7th Schedule).

Level Competencies Enabling Provision

Defence, Atomic Energy, Foreign Affairs,
Centre Citizenship, Transport, Infrastructure, Postal Article 246 + VIIth Schedule (List I)
Service, Banking, Natural Resources
Public Order/Police, Public Health, th
State
Agriculture, Water, Land, State Public Services Article 246 + VII Schedule (List II)
Centre + State Criminal Law, Economic/Social/Family
(Concurrent) Planning, Marriage Law etc. Article 246 + VIIth Schedule (List III)

The powers which are not "enumerated" in any of the lists in the 7th Schedule (Residuary
Powers) are vested in the Centre (Article 248) like in Canada and unlike the USA, Australia and
Switzerland.
The Parliament can legislate on subjects included in the State List, under some specific
circumstances & conditions:
• In the National Interest (Art.249)—If RS decides it is necessary for centre to legislate
over State list subject in the national interest, it should pass a resolution for that with majority
of at least 2/3rd of members p&v. This resolution remains in force for a year & can be renewed
any number of times, but for not more than one year at a time. The laws so made do not have
any effect six months after the resolution has ceased to be in force.
• By Agreement between States (Art. 252)—When two or more State Legislatures
pass a resolution, requesting the Parliament to legislate upon a subject in the State List. The
States cease to have power to legislate upon that subject and only the Parliament can amend
or repeal such a law.
• To Implement International Treaties and Agreements (Art. 253)—It enables
the central government to fulfil its international obligations. Eg: introduction of Lokpal and
the Lokayuktas Bill, 2011.
• Under Proclamation of National Emergency (Article 352)—Parliament can
legislate upon any subject in the State List. Such a law becomes inoperative on expiration of
six months after the emergency has ceased to operate.
• Under Proclamation of President’s Rule (Art.356)—Parliament can make laws
with respect to any subject in the State list, in relation to that state. Such a law continues to be
operative even after the President’s rule. But it can be repealed, altered or re-enacted later by
the State Legislature.

Other Provisions for Centre’s control over State legislation—

• The Constitution empowers the Governor to reserve certain types of bills passed by the State
Legislature for consideration of the President (Art. 200)
• Bills on certain matters in the State list can be introduced in the State legislature only with the
prior approval of the President (Art. 304), i.e. bills imposing restriction on the freedom of
trade and commerce.
• The President can direct the States to reserve Money Bills as well as other financial bills
passed by the SLA for his consideration, during a Financial Emergency (Art. 360).
• Art. 169 empowers the Union Parliament to provide by law, for the abolition of the
Legislative Council (Vidhan Parishad) of a State having such a Council.

In case of conflict or inconsistency, the “Rule of repugnancy”, as contained in ‘Article 254’

comes into play to uphold the principle of Union’s supremacy. Under this rule, if there is any
discrepancy between the State and the Centre over a subject in the Concurrent List, the Union
law takes precedence over the State's law, and the State’s law to the extent of such repugnancy,
be void.

ADMINISTRATIVE RELATIONS (ARTS. 256 TO 263)

Directives by the Union to the State governments
Article 256 mentions that the executive power of every state shall be so exercised as to ensure
compliance with laws made by Parliament and any existing laws, which apply in that state. For
instance, the Union can give directives to the State pertaining to—construction and maintenance
of means of communication in the state, protection of railways within the State, drawing up and
execution of the specified schemes for the welfare of the STs in the state. Non-compliance of the
directives might lead to a situation mentioned under Art.365 and it shall be lawful for the
President to hold that a situation has arisen in which the government of the State cannot be
carried on in accordance with the provisions of the Constitution & Union can invoke Art.356 for
imposition of President’s Rule.
Delegation of Union functions to the States
Article 258(1)—the President may, with the consent of the State government, entrust (either
conditionally or unconditionally) to that government any of the executive functions of the
Centre. Under Art 258(2), the Parliament is also entitled to use the state machinery for
enforcement of the Union laws, and confer powers and entrust duties to the State. In respect of
matters in the Concurrent list, executive powers rest with the State, except when a constitutional
provision or a Parliamentary law specifically confers it to the Centre.

All India Services

“Article 312” provides for the creation of an additional "All-India Services", common to both
the Union and States. The State has the authority to suspend the officials of All India Services,
but the power of appointment and taking disciplinary action against them vests only with the
President of India. Their recruitment, training, promotion, disciplinary matters are determined by
the Central govt. It can be argued that the All India Services violate the principle of federalism,
but such an arrangement, wherein a person belonging to the All India Service being responsible
for administration of affairs, both at the Centre and States, brings cooperation in administration
and helps to ensure uniformity of the administrative system throughout the country.

Constitution of Joint Public Service Commission for two or more States

When two or more states, through a resolution to that effect, in their respective legislatures agree
to have one such Commission, the Parliament may by law, provide for a Joint Commission.

Inter-State Council
It is one of the constitutional devices to bring about inter-governmental cooperation, effective
consultations between the Centre and States so that all important national policies are arrived at
through dialogue, discussion and consensus. The President is given powers under Article 263 of
the Constitution to define the nature of duties of the Council.

Inter-State river water dispute

Article 262 states that the 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 and it may by law provide that neither the Supreme Court, nor any other
court shall exercise jurisdiction in respect of any such dispute.
 FINANCIAL RELATIONS (ART.268 TO ART.293 PART XII)
Taxes and duties levied by the Union, but collected and appropriated by the
States (Art. 268)
Stamp duties are levied by the GoI, but collected and appropriated by the States, within which
such duties are leviable, except in the Union Territories, where they are collected by the Union
Govt (Art. 268). The proceeds of these duties levied within any State are assigned to that State
only and do not form a part of Consolidated Fund of India.

Service tax levied by the Centre, but collected and appropriated by the
Centre and the States (Article 268A) **REPEALED AFTER GST ACT**

Taxes levied and collected by the Union, but assigned to the States within
which they are leviable (Art.269)
Succession duty (other than Agri land), Estate duty (other than Agri land), Terminal taxes on
goods or passengers carried by railways, sea or air, Taxes on railway fares and freights taxes on
transactions in Stock Exchanges.

Article 269-A
GST on supplies in the course of inter-State trade or commerce shall be levied and collected by
the Government of India and such tax shall be apportioned between the Union and the States in
the manner as may be provided by Parliament by law on the recommendations of the GST
Council. The amount apportioned to a State under this shall not form part of the CFI.

Taxes levied and collected by the Union and distributed between the Union
and the States (Art.270)
Certain taxes are levied as well as collected by the Union, but their proceeds are divided
between the Union and the States in a certain proportion in order to effect an equitable
distribution of the financial resources. This category includes all the taxes and duties referred to
in the Union List, except the three categories mentioned above (Article 268, 269, 269A), any
surcharge and any cess levied for specific purposes.

Surcharge on certain taxes (Art.271)

The Parliament is, authorised to levy surcharge on the taxes mentioned in the above two
categories (Art.269 and Art.270) and the proceeds of such surcharges go to the Centre
exclusively and are not shareable.
Taxes levied and collected and retained by the states
These are the taxes enumerated in the State List and belong to the States exclusively. This is
subject to Article 386—No law of a State shall impose, or authorise the imposition of, a tax on
the supply of goods or of services or both, where such supply takes place— (a) outside the State;
or (b) in the course of the import of the goods or services or both into, or export of the goods or
services or both out of, the territory of India.

Grants-in-Aid
Parliament may make grants-in-aid from the Consolidated Fund of India to such States as are
in need of assistance (Art.275). These are called statutory grants and made on recommendation
of the Finance Commission. Art.282 provides for discretionary grants by the Centre and States
both, for any public purposes.

Previous sanction of the President (Art 274)

No Bill or amendment can be introduced or moved in either House of Parliament without the
previous sanction of the President, if— (i) It imposes or varies any tax in which the States are
interested; or (ii) It varies the meaning of the expression “Agricultural Income” as defined in the
Indian Income-Tax Act; or (iii) It affects the principles on which money are distributed to the
States; or (iv) It imposes a surcharge on the State taxes for the purpose of the Union.

Distribution of non tax-revenues

Non tax revenues from post and telegraph, railways, banking, broadcasting, coinage and
currency, central public sector enterprises and escheat (death of a person without heir) and lapse
(termination of rights) go to the Centre, while State receives non-tax revenues from irrigation,
forests, fisheries, state public sector enterprises and escheat and lapse (if property is situated in
that state).

DEVELOPMENT OF INDIA’S FEDERALISM SINCE INDEPENDENCE

1st Administrative Reform Commission (ARC), 1966
It was appointed by Central Govt, under the Chairmanship of Morarji Desai for the examination
of Centre-State relations.
Some important recommendations—
• Establishment of Inter-State Council under Article 263 of the Constitution
• Appointment of people having long experience in public life and administration
• Delegation of powers to the maximum extent to the States.
• Transferring of more financial resources to the States to reduce their dependency upon the
Centre.
 Sarkaria Commission (1983)
It was created to investigate Centre-State relationship under chairmanship of R.S. Sarkaria. It
outrightly rejected the demand for curtailing the powers of centre and stated that a strong centre
is essential to safeguard the national unity and integrity.
• A permanent Inter-State Council called the Inter-Governmental Council should be set up
under Article 263.
• Article 356 (President’s rule) should be used very sparingly, in extreme cases as a last resort
when all the available alternatives fail.
• The institution of All-India Services should be further strengthened and some more such
services should be created.
• The residuary power of taxation should continue to remain with the parliament, while the
other residuary powers should be placed in the concurrent list.
• When the President withholds his assent to the state bills, the reason should be communicated
to state government.
• The Zonal Councils should be constituted afresh and reactivated to promote the spirit of
federalism.
• The Centre should have powers to deploy its armed forces, even without the consent of states.
However, it is desirable that the states should be consulted.
• The Centre should consult the states before making a law on a subject of the Concurrent List.
• The procedure of consulting the Chief Minister in the appointment of State Governor should
be prescribed in the Constitution itself.
• The Governor’s term of five years in a state should not be disrupted except for extremely
compelling reasons.
• Steps should be taken to uniformly implement the three language formula in its true spirit.
• No autonomy in for radio and television but decentralization in their operations.
• The Commissioner for Linguistic Minorities should be activated.

MM Punchhi Commission (2007)

• Giving a fixed term of five years to the governors and their removal by the process of
impeachment.
• Union should be extremely restrained in asserting Parliamentary supremacy in matters
assigned to the states.
• It prescribed certain conditions that one should keep in mind while appointing governors—He
should be eminent in some walk of life; He should be a person from outside the state; He
should be a detached figure and not connected with the local politics; He should not be
connected with politics in recent past.
• Government should be given a fixed tenure of five years.
• Procedure given for the impeachment of the President could be made applicable to governor
as well.
• Governor should insist on Chief Minister proving his majority on the floor of the house for
which he should prescribe a time-limit.
• Bommai case guidelines should be kept in mind while deciding cases related to President’s
rule.
• Inter-state council should be made more use of to further centre-state relations.

MM Punchhi Commission has given recommendations regarding CS Relations on the

following topics— *[click to go the recommendations of Punchhi Commission]*
• On Consultation with States while legislating on matters in Concurrent List
• On Transfer of Entries in the Lists, from List II to List III
• On Management of matters in concurrent jurisdiction
• On Bills reserved for consideration of the President
• On Treaty making powers of the Union Executive and Centre-State Relations
• On Appointment and Removal of Governors
• On Governors' discretionary powers
• On Obligation of the Union to protect States from external aggression & internal disturbance
• On "Local emergency" under Article 355 and 356
• On Power of Union to give directions to State
• On Co-ordination between States, Centre-State Relations and Inter-State Council
• On Zonal Councils and Empowered Committees of Ministers
• On Adjudication of disputes relating to waters of inter-State rivers
• On All India Services and Centre-State Co-operation for better Administration
• On Rajya Sabha to be a Chamber to protect States' rights
• On Equal representation of States in Rajya Sabha
• On Governments' obligation to support court expenditure when laws are made
• On Judicial Councils to advise Centre-State share in judicial budgets
• On Need for continuing emphasis on federal balance of power
• On Streamlining Administrative Relations
• On Fiscal Relations to be largely decided by the Finance Commission

SPECIAL CATEGORY STATUS TO STATES

This idea was introduced in 1969 by 5th FC. Today eleven states in the country enjoy this status
including seven north-eastern states, Sikkim, Jammu Kashmir, Uttrakhand and Himachal
Pradesh. As per the Gadgil formula “special status” is to be given to certain states because of
certain intrinsic factors which have contributed to their backwardness historically.
Some of these factors include—Hilly and difficult terrain; Low population density or sizeable
share of tribal population; Strategic location along borders with neighbouring countries;
Economic and infrastructural backwardness; and Non-viable nature of state finances.
However, after the 14th Finance Commission, centre claims that there is no need of Special
Category Status to States owing to the increased tax devolution to states from 32% to 42% of
divisible pool of central taxes.

CENTRALLY SPONSORED SCHEMES (CSS)

CSS is the biggest component of Central Assistance to state plans (CA), where states don’t have
much flexibility. The CSS have remained a major bone of contention between the Union and
State Governments owing to following reasons—Inability to provide matching funds, Lack of
flexibility, Different monitoring & accounting procedures.

RELEVANCE OF NITI AAYOG

• NITI Aayog gives better representation of states which facilitates direct interactions with the
ministries & helps to address issues in a relatively shorter time. Thus, furthering the idea of
cooperative federalism.
• It is also taking steps towards Competitive Federalism. Various reports of NITI Aayog like
Healthy states Progressive India etc. which give performance-based rankings of States across
various verticals to foster a spirit of competitive federalism.
• NITI Aayog has also established a Development Monitoring and Evaluation Office which
collects data on the performance of various Ministries on a real-time basis. The data is then
used at the highest policymaking levels to establish accountability and improve
performance.

CONCERNS WITH NITI AAYOG

• While generating new ideas, NITI Aayog needs to maintain a respectable intellectual
distance from the government of the day rather than resorting to uncritical praise of
government’s projects.
• It has no powers in granting discretionary funds to states, which renders it toothless to
undertake a “transformational” intervention.
• Further, It acts as advisory body only which advices the government on various issues
without ensuring enforceability of its ideas.
 All India Services - IAS, IPS and IFS

• The common exceptional feature of the All India Services is that the candidates selected
for these civil services are recruited by the Center (Union Government in federal polity),
however, their services are allotted under various State Cadres and they have the
accountability to serve both under the State and the Centre.
• The officers of these three civil services act in accordance with the All India Services
rules that includes paying, deportment, leave, several allowances and etc.
• The recruitment for IAS and IPS is conducted through the Civil Services Examination
which is held by the UPSC every year. While for IFS, the preliminary examination is
combined with the Civil Services Exam and the other stages of the exam are held
separately.
• Cadre Controlling Authority of IAS => MPPGP
• Cadre Controlling Authority of IPS => MHA
• Cadre Controlling Authority of IFS => MoEFCC
• The power, purpose, and responsibilities of these All India Services are described in
the All India Services Act, 1951 which authorises the Government of India with the
consultation of State Governments to make guidelines and procedures for the service
conditions and the recruitment of the people appointed to All India Services.
• The All India Service (Conduct) Rules, 1968 governs the All India Services which
specifies the code of conduct for Civil Servant overall.

District Level Divisional Level State and Central levels

The responsibilities are related The job is related to law and Framing of policy
to matters of the district and all order to.
affairs of development.

• There are twenty-four cadres in the country and also there are three joint cadres =>
Assam-Meghalaya; Manipur-Tripura; and Arunachal Pradesh-Goa-Mizoram-Union
Territories (AGMUT) including J&K
• The officers of the AIS namely, IAS; IFS; & IPS are divided into state cadres. Almost
two-thirds of the All India Services Officers who are allotted to the State Cadre is
from outside the state and the remaining may be the original residents of the allocated
state. Candidates who are recruited are allocated to different cadres and on a need basis,
may also be moved to Central Government jobs on deputation.

Indian Administrative Service (IAS)

• Candidates who are selected as IAS Officers are trained to manage Government affairs.
Every civil servant is allotted to a particular office with policy framing and implementing
as the major responsibility in that particular area.
• The policy issues are framed, modified, and interpreted in this post under the direct
supervision of the Administrative Office with the consent of the Minister.
• The allotment of huge funds to and by the field officers mandates supervision and the
concerned officials are answerable to queries made in the Parliament.

The ranks are given to the civil servant based on

their seniority in the civil services

1. Cabinet Secretary-ranks at the top

2. Secretary/Additional Secretary
3. Joint Secretary
4. Director
5. Under Secretary
6. Junior Scale Officers

• Junior Scale Officer => An IAS Officer starts his career in the state as a probationary
officer for two years. During this two year, the officer spends at training schools, field
offices, Secretariat, or in a District Magistrate’s Office. She/he is appointed as the Sub-
Divisional Magistrate and has to take care of law, order and general administration like
developmental work in the area which is allocated to her/him.
• Senior Scale Officer =>After the probationary period of 2 years as a junior scale officer,
she/he moves to the senior scale where she/he functions as the District Magistrate,
Managing Director of Public Enterprise or Director of a Department. The Senior Scale
Officers are promoted as the Selection Grade Officers after 13 years of regular service.
Senior Time Scale (Joint Secretary), Junior Administrative Grade (Additional Secretary) &
Selection Grade (Special Secretary).
• The next promotion that a civil servant will be entitled within the States is the
Commissioner-cum-Secretary and that would be after 16 years of regular service. After 24
years of regular service, an IAS officer may be given on promotion as Principal
Secretaries/Financial Commissioners in some states that entitle them to Above Super
Time Scale.
• As a civil servant, the officer also represents the Government of India in another country
or in an international forum. An officer as a Deputy Secretary is also attributed to signing
agreements on behalf of the Government.
• Every State has many Secretaries/Principal Secretaries and only one Chief Secretary. In
some States, the Secretaries designation are considered as more prestigious than others
like the Finance Secretary, Home Secretary, Development Commissioners and enjoy the
salary as the Principal Secretary.
• The Chief Secretary in the State is the top rank that a civil servant can attain and the Chief
Secretary may be assisted by Additional Chief Secretaries. While in some States/Cadres
like New Delhi, the Financial Commissioner and other high ranking secretaries like
Additional Chief Secretaries enjoy the same pay as the Chief Secretary.
• In the District, the most senior person is the Collector or Deputy Commissioner (DC) or
District Magistrate (DM).

Indian Forest Services (IFS)

• The British established the Imperial Forest Department in 1864.
• The first Imperial Inspector General of Forests was a German named Dr. Dietrich
Brandis.
• In 1867, the Imperial Forestry Service was organized.
• From 1927 to 1932, the forest officers were given training at the Imperial Forest Research
Institute (FRI) situated in Dehradun which was established in 1906. The Indian Forest
College was set up in 1938 at Dehradun.
• The Forestry was transferred to the provincial list by the Government of India Act
1935 until then it was managed by the federal government and afterwards which the
recruitment to the Imperial Forestry Service was discontinued.
• After Independence, the Indian Forest Service (IFS) (the present-day IFS) was established
in 1966 under the All India Services Act 1951 for safeguard, preservation, and
restoration of forest sources.
• The candidates who are selected for IFS are trained at the Indira Gandhi National Forest
Academy.

Ranks of the Indian Forest Service

1. Probationary Officer
2. Divisional Forest Officer(DFOs)
3. Deputy Conservator of Forests, Conservator of Forests (CFs)
4. Chief Conservator of Forests(CCFs)
5. Additional Principal Chief Conservator of Forests (Addl.PCCFs)

Indian Police Service (IPS)

• After independence (1948), the Imperial Police (IP) was replaced by the Indian Police
Service.
• The Indian Police Service in itself is not a law enforcement agency but it is the body to
which all the senior police officers belong to irrespective for whichever agency they work.
• The Director-General of Police of the Indian Police Service is entrusted with the overall
law and order of the entire State, while the Superintendent of Police for the entire
District and the Deputy Commissioner or the Commissioner of Police for Metropolitan
Cities or the entire city respectively.
• An IPS officer as the Commissioner of Police enjoys magisterial powers.
• The Director-General of Police and Commissioner of Police is the head of the entire
police force of the State or Metropolitan City, and below him/her comes the Additional
DGP or Special Police Commissioner.
• While the Inspector General or Joint Commissioner of Police is the head of
specialized police force like the Criminal Investigation Department, Special Branch

Ranks of Indian Police Services

1. Assistant Superintendent of Police (Sub-division for 2 years’ probation)

2. Superintendent of Police or Deputy Commissioner of Police (After 4 years in service)
3. Junior Administrative Grade (After 9 years in service)
4. Selection Grade (After 13 years in service)
5. Deputy Inspector General of Police or Additional Commissioner of Police (After 14 years in service)
6. Inspector-General of Police(After 18 years in service)
7. Additional Director General of Police(After 25 years in service)

EQUIVALENT RANKS OF ALL INDIA SERVICES (IAS, IPS, AND IFS)

Indian Administrative Service Indian Police Service Indian Forest Service

Sub Divisional Magistrate (States) Deputy Superintendent of Police Assistant Conservator

of Forests

Under/Deputy Secretary to Additional Superintendent of Police Divisional Forest

Government of India/Additional Officer/Deputy
Deputy Commissioner/ Conservator of Forests
Joint Collector/Additional District
Magistrate(States)

Deputy Secretary to Government of Superintendent of Police Divisional Forest

India /Deputy Commissioner/ Officer/Deputy
Collector/District Magistrate(States) Conservator of
Forests (India)

Director to Government of India/ Senior Superintendent of Police Deputy Conservator of

Deputy Commissioner/Collector/ Forests (India)/Director
District Magistrate(States) (Selection of Forestry(Selection
Grade) Grade)

Divisional Commissioner in a Division Deputy Inspector General of Police Conservator of Forests

in states

Joint Secretary to Government of Inspector-General of Police Chief Conservator of

India/Secretary to State Govt. Forests

Additional Secretary to Government Additional Director General of Additional Principal

of India/Principal Secretary to State Police Chief Conservator of
Govt. Forests
 Director-General of Police Principal Chief
Conservator of Forests

Secretary to Government of India/ Director-General of Police (State Principal Chief

Chief Secretary of State Police Chief)/Director Intelligence Conservator of Forests,
Bureau/Secretary RAW (R)/Director Head of Forest Forces
CBI/Director’s General of CAPF’s (HoFF), Director
e.g. BSF, CRPF, CISF, ITBP, SSB General of Forests
etc./Director National Police
Academy

Cabinet Secretary No equivalent No equivalent

Constitutional Provisions
• Part XIV of the Constitution (Articles 308 to 314) contains provisions for all-India
services, central services, and state services.
• Article 309 empowers the Parliament and state legislatures to regulate the recruitment
and conditions of service of individuals appointed to public services and positions under
the Centre and the states, respectively. Under this provision, the Parliament or state
legislatures can impose 'reasonable' restrictions on public servants' Fundamental
Rights in the interests of integrity, honesty, efficiency, discipline, impartiality, secrecy,
neutrality, anonymity, devotion to duty, and so on. Such limitations are outlined in
conduct rules such as the Central Services (Conduct) Rules, Railway Services (Conduct)
Rules, and so on.
• Article 310 states that members of the defence services, the civil services of the Centre,
and the all-India services, as well as those holding military or civil posts under the Centre,
hold office during the president's pleasure.
• Article 311 imposes two limitations on the aforementioned "doctrine of pleasure." In
other words, it protects civil servants from arbitrary dismissal by providing two safeguards
— A civil servant may not be dismissed or removed by an authority that is subordinate to
the one that appointed him. A civil servant may not be dismissed, removed, or reduced
in rank unless he has been informed of the charges against him and has been given a
reasonable opportunity to be heard on those charges.
• Article 312 specifies provisions for all-India services.
• Article 312 A (added by the 28th Amendment Act of 1972) empowers Parliament to
change or revoke the terms of service of persons appointed to the civil service of the
Crown in India prior to 1950.
• Article 313 deals with transitional provisions, stating that until otherwise provided, all
laws in force prior to 1950 and applicable to any public service would continue to be in
effect.
• The 28th Amendment Act of 1972 repealed Article 314, which provided for the
protection of existing officers of certain services.
• According to the All-India Services Act of 1951, senior posts in the Indian Administrative
Service (IAS), Indian Police Service (IPS), and Indian Forest Service (IFS) must be filled by
promotion of officers already employed in the state services.
• Promotions are made based on the recommendations of a selection committee formed
for this purpose in each state. A committee of this type is presided over by the Chairman
or a member of the UPSC.
 GS MAINS PAPER-II
Polity
DISPUTE REDRESSAL MECHANISMS AND INSTITUTIONS

DRM & Is—They are are indispensable for making social life peaceful. It can thus be alleged
that it is the Sine qua non of social life and security of the social order, without which it may be
difficult for the individuals to carry on the life together. There are two ways to resolve the
dispute which may arise in day to day life of the modern society [Either to approach the court of
Law or resort to Alternative dispute resolution (ADR) mechanism]

ALTERNATIVE DISPUTE RESOLUTION (ADR) MECHANISM

Under constitution, ADR can find its basis in the—
• Article 14 (Equality before Law);
• Article 21 (Right to life and personal liberty);
• Article 32 (Right to Constitutional remedies);
• Article 39A of DPSP which provides for Equal Justice and Free legal Aid

Arbitration is consent based adjudication processes outside the traditional judicial system of the
court by an independent person or institution, whereas Mediation is a process of settlement
between the parties with the help of independent person/intuition.

Rationale for ADR:

• Speedy and expeditious resolution of disputes;
• Cost effective & it is within the reach of the poor man’s pocket;
• Reduces the burden on public finances in a country where resources are already strained;
• Amiable settlement for people involved;
• Confidentiality is followed;
• Harmonious resolution of disputes and interest to society at large;

Types of ADR mechanisms:

1. MEDIATION (an unbiased and impartial third party mediator, to help the parties to reach a
mutually agreeable settlement to the conflict)
• Agreement is not imposed by the mediator, but the disputing parties itself. Mediator is there
to help them reach a win- win situation. In most of the cases, Cases are conducive for
mediation if there exist communication problem or emotional barriers between parties.
• The Commercial Courts Amendment Act of 2018 has provided great impetus to mediation. It
entails that where a suit does not contemplate urgent interim relief, the plaintiff has to
undergo pre-institution mediation. It introduced “Commercial Courts (Pre-institution
Mediation and Settlement) Rules, 2018”, which laid down the procedure for mediation.
• Advantages of Mediation—Active participation of parties + Prompt resolution of disputes +
Cost effective method + Informal procedure and therefore flexible + Private and confidential.
• Disadvantages of Mediation—If one of the parties is aggressive, the settlement of conflict
becomes difficult + Cultural differences and communication gaps + Since the decision of the
mediator is not binding, the parties can yet resort to litigation.

2. ARBITRATION (a procedure in which a dispute is submitted, by agreement of the parties, to

one or more arbitrators who make a binding decision on the dispute)
• It is as per the recommendations of the High Level Committee under the Chairmanship of
Justice B.N. Srikrishna in 2015.
• Advantages of Arbitration—Fast, flexible and confidential + Choice of arbitrator with
expertise + Limited rights of review and appeal of arbitration awards;
• Disadvantages of Arbitration—Parties waive rights to access courts if arbitration in
contracts is mandatory + Pressure from powerful parties may lead to biased procedures +
High fees charged by arbitrators + Limited avenues of appeal to overturn erroneous decision.

Arbitration and Conciliation (Amendment) Act, 2019

• Establish an independent body called the Arbitration Council of India (ACI);
• Appointment of arbitrators will now be done by the SC and HCs designated arbitral
institutions;
• Removed time restriction for international commercial arbitrations and incase the
arbitration award goes for an appeal to the tribunal, it shall dispose the appeal within 12
months.
• It introduces express provisions on confidentiality of arbitration proceedings and
immunity of arbitrators.
• It prescribes minimum qualifications for a person to be accredited/act as an arbitrator.
• The statement of claim and defence to be completed within six months from the date the
arbitrator receives the notice of appointment.
• Benefits of this Act—Putting India on the world map in arbitration proceedings + Protect
foreign reserves (as Indian companies in abroad lose significant amount of foreign Exchange
on arbitration that usually happen in these foreign countries) + To reduce burden on courts +
To provide exhaustive list to choose an arbitrator + To speed up arbitration process +
Ensures accountability of arbitrators.
3. CONCILIATION (A process by which resolution of disputes is achieved by compromise or
voluntary agreement. The conciliator does not render a binding award. The parties are free to
accept or reject the recommendations of the conciliator.)
• Resolve disputes by providing technical assistance, improving communication between
parties;
• Not bound by rules of procedure and evidence;
• Any views expressed, admissions or proposals made in conciliatory proceedings cannot be
produce as an evidence in arbitral proceedings (Conciliator cannot be produced as witness in
judicial proceedings)
• The process of conciliation has been given statutory recognition by Arbitration and
Conciliation Act, 1996.

4. NEGOTIATION
• Self counselling between the parties to resolve their dispute.
• The aim of negotiation is the settlement of disputes by exchange of views and issues
concerning the parties.
• In India, Negotiation doesn’t have any statutory recognition i.e through way of legislation.

Shortcomings of ADR Mechanisms:

• Wastage of Time/ Money if the Case is Not Resolved
• Possibility of Biasness
• Compromising Confidentiality
• Limited Judicial Review
• Informal, more Opportunity of Abuse of Power by arbitrator, mediator or conciliator
• Lack of Power to Establish Legal Precedents
• Unfamiliarity with the Procedure and Lack of Awareness

INFORMAL DISPUTE REDRESSAL MECHANISMS

1. Lok Adalats [*refer to the “Quasi-Judicial Bodies” notes]
2. Nyaya Panchayats
The judicial components of the panchayat system, which forms the lowest rung of our
judiciary.
Created for the administration of justice at the local or rural level;
The rationale behind setting up the Nyaya Panchayat was - Democratic decentralization;
Easy, speedy and Inexpensive access to justice; Revival of traditional village community life;
Combination of judicial system and local self government; and Reduction in pressure on Civil
Courts.
 Nyaya Panchayats => Sarpanch as its head; Each member (must be a min of 30 years
literate) whose appointment is based on the nomination & election. It performs both civil as
well as in criminal functions. The procedure codes like CPC, CrPC and Indian Evidence Act
apply to the nyaya panchyats. Unlike courts, they have the power to investigate the facts to
find out the truth and at the same time they have the power to punish for its contempt.

Advantages of nyaya panchayats over the regular courts:

• Inexpensive and expeditious mechanism to settle disputes
• Reduce the burden of judicial work
• Provide justice at the door steps for the village folks
• Provide protection to the local customs and traditions
Disadvantages of nyaya panchayats:
• Justice provided by them is based on caste, community, personal or political considerations
• Corrupt, partial and behave improperly or rudely

3. Gram Nyayalayas [Gram Nyayalaya Act, 2008]

Gram Nyayalaya is established for every Panchayat or a group of contiguous Panchayats at
intermediate level in a district.
Presided over by a Nyayadhikari, who will have the same power, enjoy same salary and
benefits of a Judicial Magistrate of First Class. He is appointed by State Government in
consultation with the respective High Court.
Jurisdiction over an area specified by a notification by the State Government in
consultation with the respective High Court.
They have both civil and criminal jurisdiction over the offences.
Gram Nyayalayas has been given power to accept certain evidences which would otherwise
not be acceptable under Indian Evidence Act.
Appeal in criminal cases (in Court of Session) & civil cases (in District Court), which
shall be heard and disposed of within a period of six months from the date of filing of such
appeal.

Advantages of Gram Nyayalayas—makes the judicial process participatory and

decentralised + statutory alternative to the informal/traditional panchayat system + improve
physical access of people to courts by providing for mobile courts by the Nyayadhikari +
decide cases within a period of six months from the date of its institution + conduct
proceedings of gram nyayalayas in the official language of the state.
Disadvantages of the Gram Nyayalayas—Overlapping jurisdiction + Shortage of human
resources + lack of funds, functioning & over-burdened functionaries + Low case disposal
rate.
4. Family Courts
Family Courts Act, 1984 provides for establishment of Family Courts by the State Governments
in consultation with the High Courts with a view to promote conciliation and secure speedy
settlement of disputes relating to marriage and family affairs and for matters connected
therewith.
It is mandatory for the State Government to set up a Family Court for every area in the State
comprising a city or a town whose population exceeds one million. [Section 3 (1)(a) of this Act]
Objectives and reasons for setting up of Family Courts are:
• Create a Specialized Court which will exclusively deal with family matters / constitute a
mechanism for conciliation of the disputes relating to family
• Provide an inexpensive remedy
• To have flexibility and an informal atmosphere in the conduct of proceedings
The Family Courts are free to evolve their own rules of procedure, and once a Family Court
does so, the rules so framed override the rules of procedure contemplated under the Code of
Civil Procedure. In short, the aim of these courts is to form a congenial atmosphere where family
disputes are resolved amicably.
Issues with Family Courts functioning—lack of continuity + people do not seem to take the
court as seriously + majority of judges should be women (as laid down by the Family Courts
Act) is not being fulfilled + substantive aspect of the law cannot be ignored.

Mediation Conciliation Lol Adalat

Voluntary process Voluntary Process Voluntary Process
Conciliator is a neutral third party. Conciliator is a neutral third party.
Mediator is a neutral third party. Presiding officer is a neutral third Presiding officer is a neutral third
party. party.
Service of lawyer is available Service of lawyer is available Service of lawyer is available
The function of the conciliator is
The function of the Mediator is The function of the Presiding
more active than the facilitative
mainly facilitative Officer is persuasive.
function of the mediator.
The consent of the parties is not The consent of the parties is The consent of the parties is not
mandatory for referring a case to mandatory for referring a case to mandatory for referring a case to
mediation. conciliation. Lok Adalat.
Regulated by Code of Civil Regulated by Arbitration and Regulated by Legal Services
Procedure, 1908 Conciliation Act, 1996 Authorities Act, 1987
Not appealable. Decree/order not appealable. Award not appealable
Parties are actively and directly Parties are actively and directly Parties are not actively and
involved. involved. directly involved so much
Confidentiality is the essence Confidentiality is the essence Confidentiality is not observed
 Judicial Process Arbitration Mediation
A quasi-judicial adjudicatory A negotiation process and not an
An adjudicatory process
process where the arbitrator(s) adjudicatory process. The mediator
where a third party (judge/
appointed by the Court or by the facilitates the process. Parties participate
other authority) decides the
parties decide the dispute directly in the resolution of their dispute
outcome.
between the parties. and decide the terms of settlement.
Procedure and decision are
Procedure and decision are Procedure and settlement are not
governed, restricted and
governed, restricted, and controlled, governed or restricted by
controlled by the provisions of
controlled by the provisions statutory provisions thereby allowing
the Arbitration & Conciliation,
of the relevant statutes. freedom and flexibility.
1996.
A binding settlement is reached only if
The decision is binding on The award in an arbitration is
parties arrive at a mutually acceptable
the parties. binding on the parties.
agreement.
Personal appearance or active Personal appearance or active
Personal appearance and active
participation of parties is not participation of parties is not
participation of the parties are required.
always required. always required.
A formal proceeding held in A formal proceeding held in A non-judicial and informal proceeding
public and follows strict private following strict held in private with flexible procedural
procedural stages. procedural stages. stages.
Award is subject to challenge on Decree/Order in terms of the settlement is
Decision is appealable
specified grounds. final and is not appealable

ONLINE DISPUTE REDRESSAL (ODR)

• In 2005, an e-Committee established by the Supreme Court for planning the implementation
of information and communication technology (ICT) in the judiciary recognised an “urgent
need of re-engineering” of the judicial processes and ICT enablement as “mission-critical”.
• ODR is the resolution of disputes, particularly small- and medium-value cases, using digital
technology and techniques of ADR.
• ODR is more suited to complaints that are of low value, high volume and occurring between
users with access to internet.
• There are two models under ODR—Opt-in model, in which option of going into mediation is
voluntary & Opt-out model, under which it is mandatory to enter into mediation for at least
one session, and then the parties have the liberty to opt out if they feel so.
• ODR mechanisms would assume significance on mainly three fronts—Dispute resolution,
Dispute containment & Dispute avoidance.
• Benefits of ODR—Reduction in pendency of cases, Focus on complex cases, Ease of Doing
Business, Consumer satisfaction etc.
• Concerns related to ODR—Infrastructural issues, Procedural issues, Difficulty in
enforcement of online awards, Privacy and data security, lack of digital literacy etc.
 GS MAINS PAPER-II
Polity
EMERGENCY PROVISIONS

• Emergency provisions enables the state to deal with any abnormal situation & defend
sovereignty, unity, integrity and security. These provisions are contained in its Part XVIII,
from Articles 352 to 360.
• During an Emergency, the Union government becomes all powerful and the federal structure
gets converted into a unitary one without a formal amendment of the Constitution.
• Sources of Emergency Provisions—Government of India Act, 1935 and the Constitution of
Weimer Republic of Germany.

NATIONAL EMERGENCY (ART. 352)

Grounds for NE:
• Under Art. 352, PoI can declare NE, when security of India or its part is threatened by war/
external aggression (External emergency) or Armed rebellion (Internal Emergency).
• The 44th Amendment Act of 1978 substituted the words ‘armed rebellion’ for ‘internal
disturbance’.
• PoI can declare NE even before the actual occurrence of war or external aggression or
armed rebellion if he is satisfied that there is an imminent danger.

• Territorial Extent—A proclamation of NE is applicable to entire country or only its part. The
42nd Amendment Act of 1976 enabled the President to limit the operation of a National
Emergency to a specified part of India.
• Concurrence of the Cabinet- The President can proclaim a national emergency only after
receiving a written recommendation from the Cabinet. (44th Amendment Act of 1978)
• The proclamation of National Emergency must be approved (ratified) by both the Houses
of the Parliament within one month from the date of its issue by a special majority. If the
Lok Sabha stands dissolved at the time of the declaration of emergency, then it must be
approved by the reconstituted Lok Sabha within thirty days from its first sitting, provided the
Rajya Sabha has approved it in the meantime.
• After approval by both the Houses of Parliament, the emergency continues for six months,
and can be extended to an indefinite period with an approval of the Parliament for every
six months. (44th Amendment Act of 1978) Resolutions to extend the NE must be passed by
a special Majority.
• Lok Sabha has the powers to initiate proceedings for the discontinuation of the emergency.
Lok Sabha can issue a notice in writing, signed by not less than one-tenth of the total
members, with the intention to move a resolution. This resolution should be addressed to the
Speaker, if the house is in session or the President otherwise. A special sitting of the house
shall be held within 14 days from the date on which such notice is received for the purpose
of considering such a resolution. The resolution has to be passed by a simple majority to
cancel the emergency. It can additionally be re-invoked by the President on the advice of
CoM.

IMPACTS OF NE
Effect on Centre-State Relations
The state Govts are brought under the complete control of the Union, they can direct any state
regarding the executive power. Normal Distribution of legislative powers is suspended.
Parliament is empowered to make laws ons subjects mentioned in State list. Legislative
power of the SLA becomes the overriding power of Parliament. These laws will cease to become
inoperative after 6 months period after NE had ceased to exist. PoI can also issue ordinances
on state subjects. The 42nd CA, 1976 provided that the 2 consequences mentioned above
(exec. & leg.) extends not only to state where emergency is in operation but also to any other
state. The President can modify the constitutional distribution of the revenues b/w C&S.
Such modification continues till the end of the FY in which NE ceases to operate.
Effect on life of the Legislature
The normal tenure of the LS / SLAs can be extended by Parliament while proclamation of
NE is in operation. For LS tenure extension beyond 5 years, it can be done 1 year at a time (for
any length of time). This extension can not continue beyond a period of 6 months after NE
ceases. The SLA tenure can be extended like the LS.
Effect on the Fundamental Rights (Art. 358 & Art. 359)
• Article 358—Confined to FR under Article 19 only; suspends Art. 19 completely;
Automatically suspended when Emergency is declared; Operates only in case of External, not
Internal Emergency; Suspends FRs under Art. 19 for entire duration of NE; Extends to whole
country; Enables state to make any law or take any executive action inconsistent with FRs
under Art 19.
• Article 359—Extends to all those FRs whose enforcement is suspended by Presidential
Order. It doesn’t empower the suspension of enforcement of Art 20 & Art 21. It is not
automatically suspended, rather it empowers the PoI to suspend the enforcement of specified
FRs. Operates in both External & Internal Emergencies. It suspends for a period specified by
PoI, which may either be entire duration of NE or shorter duration. Extend to entire country
or part. Enables State to make law or take any exec action inconsistent with those FRs whose
enforcement is suspended by Presidential Order.
Judicial Review and Article 352
The 38th Amendment Act of 1975 made the declaration of a National Emergency immune from
judicial review (later deleted by the 44th CA of 1978). Supreme Court [Minerva Mills case
(1980)] held that the proclamation of a National Emergency can be challenged in a court on the
ground of malafide or that the declaration was based on wholly extraneous and irrelevant facts
or is absurd or perverse.

STATE EMERGENCY (ARTICLE 356 & 365)

Grounds for President’s Rule (2 grounds mentioned)
• Article 356 provides for the proclamation by the President of India, on receipt of report from
the Governor of a State or otherwise, if he is satisfied that a situation has arisen in which the
government of a State cannot be carried on in accordance with the provisions of the
Constitution.
• Article365 is said to be a precursor to Art 356. Art 365 imposes a duty on the Union to ensure
that the government in every state is carried on as per the provisions of the Constitution.
Whereas Article 356 confers power upon the Union to ensure that Article 355 becomes
effective.
Procedures and safeguards
• Proclamation to be approved by a simple majority within two months by both the Houses,
otherwise it ceases to exist after two months. After that, it remains in force for 6 months. This
period can be extended for another 6 months if further approved by both the Houses.
• The 44th Amendment Act of 1978 introduced a new provision to put restraint on the power
of Parliament to extend a proclamation of President’s Rule beyond one year.
• President’s Rule may be revoked by the President at any time by a subsequent proclamation
(No need for any parliamentary approval).

Effects of State Emergency

• The PoI can take extraordinary powers during PR—he takes up the functions of State govt
& governor or any other exec authority, declare that the powers of the state legislature are to
be exercised by the Parliament.
• President dismisses the State Council of Ministers, headed by the CM. The State Governor,
on behalf of the President, carries on the State administration with the help of the Chief
Secretary of the State.
• As per Article 357, the Parliament may confer this legislative power on the President and
authorize him to further delegate it to any other authority.
• The Parliament can authorize the President to sanction expenditure from the Consolidated
Fund of the State.
 Observations of various Committees/Commissions
• Sarkaria Commission (1987)
Art 356 should be used only in extreme cases & as a matter of last resort. Its imposition should
be accompanied with report by Governor to the President with relevant facts and details. No
dissolution of Assembly till proclamation is ratified by the parliament.
• National Commission for Reviewing the Working of Constitution (2002)
A warning should be issued to the errant State & should take account of any explanation
received from the State should be taken into account. The SLA should not be dissolved before
the proclamation is even put before the Parliament to consider it. Safeguards corresponding to
that of Article 352 should be incorporated in Article 356 to enable Parliament to review
continuance in force of a proclamation.
• Punchhi Commission (2008)
It recommended the imposition of localized emergency i.e. only a district or a part of a district
to be brought under Governor’s rule instead of the entire state. (Not exceeding the duration of 3
months)

Judicial review and Article 356

• The principle that such Presidential Proclamation is not immune from judicial review was
first established in the case of State of Rajasthan v. Union of India and has been expanded in
the case of S.R. Bommai v. Union of India.
• The power conferred by Article 356 upon the President is a conditioned power. It is not an
absolute power. It also stated that the power of President is limited by article 356(3), which
requires parliamentary approval of the emergency. This implies that President shall not
dissolve the assembly till the time it is approved by the Parliament. (SR Bommai Case)

FINANCIAL EMERGENCY (ARTICLE 360)

• The President proclaims Financial Emergency under Article 360, if he is satisfied that the
financial stability of India, or any part thereof is threatened. (Not beyond the Judicial review)
• This proclamation must be approved within two months from the date of its issue by the
Parliament. If the Lok Sabha is dissolved within that period of two months, the proclamation
has to be approved within thirty days of the first sitting of the newly constituted Lok Sabha. It
can continue for an indefinite period, till it is revoked by the President.
• There is no maximum period prescribed for its operation; and repeated parliamentary
approval is not required for its continuation.
• A resolution approving the proclamation of financial emergency can be passed by either
House, only by a simple majority.
• Financial Emergency may be revoked by the president at anytime by a subsequent
proclamation (No need for parliamentary approval for revocation)

Effects of Financial Emergency

He can issue directions to reduce the salaries and allowances of all or any class of persons
serving under the State, or the Union including the judges of the Supreme Court and High
Court. All money and financial bills passed by the State Legislature can be reserved for the
President’s consideration during the period of Financial Emergency.

Criticisms of Emergency Provisions

• Violates the fundamental rights of citizens
• Imposed on political grounds
• Not exhausting all options (state assemblies have been dissolved without giving a chance to
other political parties to form govt)
• Compromises the federal spirit of the Constitution (transition from federal to unitary)

Article 352 Proclamation of Emergency

Article 353 Effect of Proclamation of Emergency
Application of provisions relating to distribution of revenues while a Proclamation of
Article 354
Emergency is in operation
Article 355 Duty of the Union to protect states against external aggression and internal disturbance
Article 356 Provisions in case of failure of constitutional machinery in states
Article 357 Exercise of legislative powers under proclamation issued under Article 356
Article 358 Suspension of provisions of Article 19 during Emergencies
Suspension of the enforcement of the rights conferred by Part III during Emergencies
Article 359
Application of this part to the state of Punjab under Article 359A was repealed
Article 360 Provisions as to Financial Emergency
 ELECTIONS IN INDIA

ELECTION PROCESS IN INDIA

• The Indian Constitution attaches special significance to independent electoral machinery for the
conduct of elections. It puts in place an Election Commission of India, which is responsible for
superintendence, direction and control of all elections. It is responsible for conducting elections
to both the Houses of Parliament and State Legislatures and for the offices of President and
Vice-President.
• Besides, it is also responsible for the preparation revision, maintenance and update of the list of
voters. It delimits constituencies for election to the Parliament and the State Legislatures, fixes the
election programme and settles election disputes.
• The stages of the election process of India can be thought to begin with the delimitation of
constituencies wherein the entire area (the whole country in the case of Lok Sabha elections and
that particular state in the case of Legislative Assembly elections) is divided into constituencies.
Thereafter, the electoral roll i.e. voters' list for each constituency is prepared/revised and published.
• The EC normally announces schedule of elections a few weeks before the formal process is set in
motion.
• The Model Code of Conduct for guidance of candidates and political parties comes immediately
into effect after such announcement.
• The formal process for the elections starts with notification calling upon the electorate to elect
Members of a House. As soon as Notifications are issued, candidates can start filing their
nominations in the constituencies from where they wish to contest. These are scrutinised by the
Returning Officer of the constituency concerned.
• The next stage is the campaign by all the candidates and the parties. The election campaign ends 48
hours before the polling.

TYPES OF VOTING SYSTEMS

First past the post System/Plurality System
• In elections held under FPTP, each voter makes a mark next to one candidate on the ballot paper or
on the EVP. This system is a “plurality” voting system i.e. the candidate who secures the highest
number of votes in that constituency is declared elected.
• It is important to note that in this system whoever has more votes than all other candidates is
declared elected. The winning candidate need not secure a majority of the votes.
• The problem with this system is that it follows a winner takes all approach i.e. The votes that go
to all the losing candidates are wasted. For instance, if a party gets only 25% of the votes in every
constituency, but everyone else gets even less votes. In that case, the party could win all the seats
with only 25% votes or even less.
Proportional Representation Systems
Party List Voting
• It is followed in most European democracies and in many newly democratised countries, including
South Africa. Each party puts up a list of candidates equal to the number of seats in the district.
Independent candidates may also run, and they are listed separately as if they are their own party.
• On the ballot, voters indicate their preference for a particular party and the parties then
receive seats in proportion to their share of the vote. For instance, in a five-member district, if a
party wins 40% of the vote, it would win two of the five seats. The two winning candidates would
be chosen according to their position on the list.
• In a closed list system, the party fixes the order in which the candidates are listed and elected, and
the voter simply casts a vote for the party as a whole. Voters are not able to indicate their preference
for any candidates on the list, but must accept the list in the order presented by the party. Winning
candidates are selected in the exact order they appear on the original list.
• The Open list system allows voters to express a preference for particular candidates, not just
parties. Voters are presented with unordered or random lists of candidates chosen in party primaries.
They cannot vote for a party directly, but must cast a vote for an individual candidate. This vote
counts for the specific candidate as well as for the party. The final order completely depends on the
number of votes won by each candidate on the list. The most popular candidates rise to the top of
the list and have a better chance of being elected.
Mixed-Member Proportional Voting
• It is also known as “the additional member system”, “compensatory PR”, "two vote system”, and
“the German system”. People cast votes on a double ballot.
• On one side of the ballot i.e. District List, they vote for a district representative. This part of the
ballot is a single-member district plurality contest to see which person will represent the district in
the legislature. The person with the most votes wins. Usually half of the seats in the legislature are
filled in this way. So in a hypothetical 100-member state legislature, the winners of these district
contests would occupy 50 of the seats.
• On the other part of the ballot i.e. National Party List, voters indicate their choice among the parties,
and the other half of the seats in the legislature are filled from regional lists of candidates chosen by
these parties. These party list votes are counted on a national basis to determine the total portion of
the legislature that each party deserves. Candidates from each party’s lists are then added to its
district winners until that party achieves its appropriate share of seats.
• For instance, in the district elections (first part of the ballot), party A won 28 seats. It won 40% of
the party list votes in the 100-member state legislature (second part of the ballot). Hence, they
would be entitled to a total of 40 of the 100 seats. But they already elected 28 of their candidates in
district elections, they would then add 12 more (i.e. remainder of the two 40-28=12) from their
regional party lists to come up to their quota of 40 seats.
Alternative Vote System/Preferential Voting System/Single Transferrable Voting System
• In elections held under the Alternative Vote, each voter may rank candidates in order of preference
(1, 2, 3 etc.). After marking their first preference, voters may then choose to express further
preferences for as many, or as few, candidates as they wish.
• The count begins by allocating votes in line with first preferences. If a candidate has an “absolute
majority” – more than 50% – of the votes after this allocation they are elected.
• If no candidate has an absolute majority, then the candidate in last place is eliminated and their
votes are reallocated according to the next highest preference expressed on each ballot paper; if a
voter has not marked a preference for any candidate that remains in the contest, then the ballot
paper is set aside from the count.
• This process continues until a candidate has an absolute majority of the votes left in the count, and
is elected. This system of proportional representation by single transferable vote is used for the
election of the President of India and elections to Rajya Sabha seats.

PROVISIONS OF THE CONSTITUTION

• Article 326 of the Constitution enfranchises all the adult citizens (not less than 18 years of age) and
empowers them to vote at the elections to the Lok Sabha and the State Assemblies.
• Article 324 vests the superintendence, direction and control of the preparation of electoral rolls and
conduct of elections in an independent Election Commission.
• Articles 243K and 243ZA delineate to the State Election Commissions the responsibility for
elections to local bodies – Panchayats and Municipalities.
Composition of Lok Sabha:
• Article 81 of the Constitution provides for the maximum number of seats in the Lok Sabha. It shall
consist of— (a) not more than 530 chosen by direct election from territorial constituencies in States,
and, (b) not more than 20 to represent Union territories, chosen in such manner as Parliament may
by law provide. Each State shall be allotted number of seats in Lok Sabha in such manner that the
ratio between number of seats and population of the State is, so far as practicable, the same for all
States. This is, however, not applicable for the allotment of seats in the House of the People to any
State with a population up to six millions. Each State shall be divided into territorial constituencies
in such manner that the ratio between population of each constituency and number of seats allotted
to it is, so far as practicable, the same throughout the State. Under Article 330 of the Constitution,
seats are to be reserved in the House of the people for the Scheduled Castes and the Scheduled
Tribes.
Composition of State Legislative Assemblies:
• Article 170 of the Constitution lays down the maximum and minimum number of seats for the
Legislative Assembly of each State to be chosen by direct election from territorial constituencies in
the State. Legislative Assembly of each State shall consist of not more than five hundred, and not
less than sixty, members chosen by direct election from territorial constituencies in the State. Each
State shall be divided into territorial constituencies in such a manner that the ratio between the
population of each constituency and the number of seats allotted to it shall, so far as practicable, be
the same throughout the State. Under Article 332, seats shall be reserved for the Scheduled Castes
and the Scheduled Tribes in the State Legislative Assemblies.
Composition of Rajya Sabha:
• Article 80 of the Constitution lays down the maximum strength of Rajya Sabha. It has been fixed at
250, out of which 12 members are nominated by the President and 238 are representatives of the
States and of the two Union Territories.
• The Fourth Schedule (14th Schedule) to the Constitution provides for allocation of seats to the
States and Union Territories in Rajya Sabha. The allocation of seats is made on the basis of the
population of each State.
Composition of Legislative Council:
• Article 171 of the Constitution provides for the composition of the Legislative Council. The total
number of members in the Legislative Council of a State having a Council shall not exceed one-
third of the total number of members in the Legislative Assembly of that State and not be less than
forty.
• Of the total number of members of the Legislative Council of a State—
(a) one-third shall be elected by electorates consisting of members of municipalities, district boards
and such other local authorities in the State as Parliament may by law specify;
(b) one-twelfth shall be elected by electorates consisting of persons residing in the State who have
been for at least three years graduates of any university in the territory of India;
(c) one-twelfth shall be elected by electorates consisting of persons who have been for at least three
years engaged in teaching in such educational institutions within the State, not lower in standard
than that of a secondary school, as may be prescribed by or under any law made by Parliament;
(d) one-third shall be elected by the members of the Legislative Assembly of the State from amongst
persons who are not members of the Assembly;
(e) the remainder shall be nominated by the Governor.

DELIMITATION OF CONSTITUENCIES FOR ELECTIONS TO THE LOK

SABHA / LEGISLATIVE ASSEMBLIES
• There are two types of constituencies—Parliamentary constituencies & Assembly constituencies.
Each parliamentary constituency consists of an integral number of assembly constituencies. This
number varies from State to State.
• For the purpose of determining the number of seats to be allotted to the States in the Lok Sabha and
the seats, if any, to be reserved for Scheduled Castes and Scheduled Tribes, the total population of
all the States is divided by the total number of seats in the House of the People. This gives the
average population per seat. The population of each State is then divided by this number to arrive
at the number of seats to be allotted to that State.
• Article 82 of the Constitution declares that upon the completion of each census, the allocation of
seats in the House of the People to the States and division of each State into territorial
constituencies shall be readjusted by such authority and in such manner as Parliament may by law
determine.
• Article 170 makes provision in regard to the seats in the State Legislative Assemblies and the
division of the States into territorial constituencies.
• Article 327 gives specific power to Parliament to make elaborate provision for such readjustment
including delimitation of constituencies and all other related matters. The delimitation of
constituencies is done by the Delimitation Commission as per provisions of the Delimitation Act.
Delimitation Commissions have been set up four times in the past viz. 1952, 1963, 1973 and 2002
under Delimitation Commission Acts of 1952, 1962, 1972 and 2002 respectively.
• As per Article 82 of the Constitution of India, there has to be readjustment of seats after each
census (every 10 years) and such adjustment should be based on the population. However, the 42nd
Amendment Act of 1976, 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 ban on readjustment
was extended for another 25 years (ie, upto year 2026) by the 84th Amendment Act of 2001.
• The 87th Amendment Act of 2003 provided for the delimitation of constituencies on the basis of
2001 census and not 1991 census. However, this can be done without altering the number of seats
allotted to each state in the Lok Sabha.

PREPARATION / REVISION OF ELECTORAL ROLLS

Article 325 provides for a general electoral roll for every territorial constituency for election to either
House of Parliament or to the House or either House of the Legislature of a State. No person can be
excluded from inclusion in any such roll or claim to be included in any special electoral roll on
grounds only of religion, race, caste, sex or any of them.
ECI is responsible for preparing the electoral rolls for assembly and parliamentary constituencies.
The State Election Commissions are responsible for electoral rolls for local body elections. In a
Union territory with no Legislative Assembly, rolls are prepared and revised separately for the
parliamentary constituencies.
Election to constitute a new Lok Sabha or Assembly upon completion of the term
General Election
of the previously constituted body is called General Election
If at any time there is a mid-term vacancy due to the death or resignation of a
By-Election member either in Lok Sabha or Legislative Assembly only one seat falls vacant. The
election for that seat is known as by- election
If the Lok Sabha or State Assembly is dissolved before completion of five years and
Mid-term Election the election is held to constitute new Lok Sabha or new State Assembly, etc. is called
midterm election.

There are two methods of revising the electoral rolls:

• Intensive revision: Intensive revision is carried out by house to house visits by enumerators who
enter the names of all citizens ordinarily residing in a house and who have attained the age of 18
years and above on the qualifying date.
• Summary Revision: In summary revision, no house to house visits are made. The existing rolls
with supplements, if any, are published for inviting claims and objections. After the disposal of
claims and objections the rolls are finally published with supplements.

VOTER REGISTRATION
• Article 326 confers the right to vote at an election on every adult citizen unless disqualified under
the Constitution or law on the ground of non-residence, unsoundness of mind, crime or corrupt or
illegal practice. The original Article 326, providing for adult suffrage fixed the age of eligibility to
vote for elections to the Lok Sabha and Vidhan Sabhas, at 21 years, but by the 61st Amendment
(1989) to this clause passed in 1989, it has been reduced to 18 years.
• One Registration: No person is entitled to be registered in the electoral roll of more than one
Constituency; and no one can be registered in any electoral roll more than once.
• Persons disqualified for registration as voters are—persons who are not citizens of India, or
persons who are of unsound mind and stand so declared by a competent court, or persons who for
the time being are disqualified from voting under the provisions of any law relating to corrupt
practices and other offences in connection with elections.
• Categories of Voters/Electors—General/Resident Electors: residents of India who can vote in a
polling booth. Service Electors: residents of India who work for the Indian Government away from
their home or are in the Armed Forces. Overseas Electors: non-residential Indians who have not
taken citizenship of any other country. (NRIs are prohibited from participating in the voting process,
except in one case. If the NRI happens to be an Indian citizen employed under Government of India
and is currently posted overseas, he or she may get registered as a voter)
Note: A person confined in jail cannot vote in an election in India. As per the provisions given in
The Representation of the People Act, 1951, (RPA) Section 62 (5), a person in prison, “under
sentence of imprisonment or transportation or otherwise, or in the lawful custody of the police” is not
eligible to cast his vote in an election.

QUALIFICATIONS FOR A CANDIDATE

• The qualifications for a Member of Parliament & State Legislature as laid down under Article 84 &
Article 173 of the Constitution are that he/she should—(i) be a citizen of India, (ii) be not less
than 30 years of age in the case of the Council of States/Legislative Council and not less than 25
years of age in the case of the House of the people/Legislative Assembly, and (iii) be possessing
such other qualifications as may be laid down by Parliament. The Representation of the People
Act (RPA), 1951 requires that he/she should be an elector for a parliamentary constituency in India
i.e. his/her name should be registered in any parliamentary constituency.

DISQUALIFICATIONS FOR A CANDIDATE

• Under Article 102 (1) & Article 191 (1), a person is disqualified for being chosen as, and for being,
a member of either House of Parliament/State Legislature if he/she—(a) holds any office of profit
under the central or any state government, other than an office declared by Parliament by law not to
disqualify its holder; or (b) is of unsound mind and stands so declared by a competent court; or (c)
is an undischarged insolvent; or (d) 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; or (e) is otherwise disqualified by or under any law made by Parliament.
• Other criteria for disqualification from the membership of a Legislature are provided for by the
Representation of the People Act, 1951.

CHIEF ELECTORAL OFFICER (CEO) = ECI nominates or designates an Officer of the Govt of
the State/UT as the Chief Electoral Officer in consultation with that State Government/UT
Administration. He is authorised to supervise the election work in the State/UT subject to the
overall superintendence, direction and control of the ECI.
DISTRICT ELECTION OFFICER (DEO) = ECI nominates an Officer of the State Government as
the District Election Officer (DEO) in consultation with the State Government. The District
Election Officer is authorised to coordinate and supervise all work in the district or in the area
within his jurisdiction in connection with the conduct of all elections to Parliament and the
Legislature of the State subject to the superintendence, direction and control of the CEO.

OBSERVERS = The ECI may nominate an Observer who shall be an officer of Government to
watch the conduct of election or elections in a constituency or a group of constituencies. But with
the amendments made to the RPA, 1951 in 1996, these are now statutory appointments. They
report directly to the Commission. The Observer has the power to direct the Returning Officer for
the constituency or for any of the constituencies for which he has been nominated, to stop the
counting of votes at any time before the declaration of the result or not to declare the result if in
his opinion booth capturing has taken place.

RETURNING OFFICER = ECI nominates or designates an officer of the Government or a local

authority as the Returning Officer for each of the assembly and parliamentary constituencies in
consultation with the State Government/UT Administration. ECI may appoint one or more Assistant
Returning Officers for each of the assembly and parliamentary constituencies to assist the Returning
Officer in the performance of his functions in connection with the conduct of elections.

PRESIDING OFFICER = DEO appoints a presiding officer for each polling station, who has the
general duty of the presiding officer at a polling station to keep order and to see that the poll is fairly
taken.

POLLING OFFICER = A polling officer performs all or any of the functions of a presiding officer
based upon his direction. It is the duty of the polling officers at a polling station to assist the presiding
officer for such station in the performance of his functions.

ELECTION NOTIFICATION
• The electoral process for the elections to the Parliament starts with Presidential notification calling
upon all the parliamentary constituencies to elect members to constitute a new House of the People
either on the expiry of the tenure of the existing House or on its dissolution.

NOMINATION PROCESS
• On the issue of notification, the Returning Officer shall give public notice of the intended election
in such form and manner as may be prescribed, inviting nominations of candidates for such
election and specifying place at which the nomination papers are to be delivered.
• On or before the date appointed, each candidate shall either in person or by his proposer, deliver to
the Returning Officer a nomination paper completed in the prescribed form and signed by the
candidate and by an elector of the constituency as proposer. If the candidate belongs to a recognised
national/state party, he/she would require only one elector of the constituency as proposer, under
Section 33 of RPA, 1951. It also provides that as an independent candidate or a candidate of an
 unrecognised political party, ten electors from the constituency should subscribe his/her nomination
paper as proposers.
• In a constituency where any seat is reserved, a candidate shall not be deemed to fill that seat unless
his nomination paper contains a declaration specifying the particular caste or tribe of which he is a
member and the area in relation to which that caste or tribe is a scheduled caste or tribe of the State.
• The candidate is also required to make declarations in the nomination form regarding his affiliation
to a political party, if any, with name, and the choice of three election symbols in order of his
preference.
• As per Section 33 (7) of RPA 1951, a person cannot contest from more than two constituencies for
a Lok Sabha/Vidhan Sabha election.
• Where the candidate is an elector of a different constituency, a copy of the electoral roll of that
constituency, or a certified copy of the relevant entries in such roll shall be produced before the
Returning Officer at the time of scrutiny.

DEPOSITS FOR ELECTION

• A candidate seeking election to the Parliament is required to deposit a fixed amount as security. The
deposit will be refunded if the candidate is elected or has obtained more than one sixth of the total
number of valid votes polled in the constituency. The deposit is intended to ensure that the
candidate is a serious contestant.
• In other cases, the deposit will be forfeited. If a candidate was a contesting candidate in more than
one constituency for the same House of a legislature, he is entitled to the refund of only one deposit.
If, however, he was contesting an Assembly seat and a Lok Sabha seat simultaneously, he would get
a refund of the deposits made in both, provided that he obtains more than one-sixth of the total
number of valid votes polled in each constituency. As per Section 34(1)(a) of the RPA, 1951, every
candidate is required to make a security deposit of Rs. 25,000 for Lok Sabha elections (Rs 12,500
for SC/ST candidates). As per Sec. 34(1)(b) of the RPA 1951, a general candidate for contesting an
Assembly election will have to make a security deposit of Rs. 10,000 and Rs. 5,000 for SC/ST
candidates.

SCRUTINY OF NOMINATIONS
• The Returning Officer is given the power to examine the nomination papers and decide objections
which may be made to any nomination.
• A nomination paper will be rejected if—(a) the candidate is either not qualified or is disqualified in
law to be such member; (b) the nomination paper has not been submitted in the prescribed manner
and within the stipulated time or is not accompanied by the necessary deposit; (c) the signature of
the candidate or the proposer on the nomination paper is not genuine.
• The Returning Officer is not authorised to reject any nomination on the ground of any defect
which is not of a substantial character. He/she is required to record reasons for rejecting a
nomination paper.
WITHDRAWAL OF CANDIDATURE
• Any candidate may withdraw his candidature by a notice in writing either himself or through his
proposer or election agent, who should be duly authorised by the candidate, to present such notice
on the last date fixed for such purpose. The notice of withdrawal is irrevocable.
• Immediately after the expiry of the period within which candidatures may be withdrawn, the
Returning Officer is required to prepare and publish a list of contesting candidates. If there is
only one duly nominated candidate, the election will be an uncontested one and the Returning
Officer will declare that candidate elected immediately after the expiry of the time for the
withdrawal of candidature.

RECOGNITION OF PARTIES
For State Party Status:
1. At General Elections or Legislative Assembly elections, the party has won 3% of
seats in the legislative assembly of the State (subject to a minimum of 3 seats).
2. At a Lok Sabha General Elections, the party has won 1 Lok Sabha seat for every 25
Lok Sabha seat allotted for the State.
3. At a General Election to Lok Sabha or Legislative Assembly, the party has polled
minimum of 6% of votes in a State and in addition it has won 1 Lok Sabha or 2
Legislative Assembly seats.
4. At a General Election to Lok Sabha or Legislative Assembly, the party has polled 8%
of votes in a State.
For National Party Status:
1. The party wins 2% of seats in the Lok Sabha (11 seats) from at least 3 different
States.
2. At a General Election to Lok Sabha or Legislative Assembly, the party polls 6% of
votes in four States and in addition it wins 4 Lok Sabha seats.
3. A party gets recognition as State Party in four or more States.

ELECTION CAMPAIGN
• The Conduct of Elections Rules, 1961 under the RPA, 1951 provides for an interval between the
last date fixed for the withdrawal of candidatures and the date of the poll.
• After the last date of filing nominations, usually two days are provided for the candidates to
withdraw their nominations. From the last day of withdrawing the nominations to the polling day, a
candidate is given around 14 days for campaigning in which the last 48 hours prior to the polling
the candidate is not allowed to hold rallies, road shows or any campaign which involves a gathering.
• The last 48 hours are called the Silence Period, during which no active campaigning by candidates
or political parties is allowed, and television or any digital media cannot carry any election-related
matter.
MODEL CODE OF CONDUCT
• Part I of Model Code lays stress on certain minimum standards of good behaviour and conduct of
political parties, candidates and their workers and supporters during the election campaigns;
• Parts II and III deal with the holding of public meetings and taking out processions by political
parties and candidates;
• Parts IV and V describe as to how political parties and candidates should conduct themselves on
the polling day and at the polling booths;
• Part VI exhorts political parties and candidates to bring their complaints to the notice of the
observers appointed by the Election Commission for remedial action;
• Part VII deals with the parties in power. This part is, in essence, the flesh and blood of Model
Code, which deals with several issues relating to Government and its Ministers, such as visits of
Ministers, use of Government transport and Government accommodation, announcements of
various schemes and projects etc.
• The newly added Part VIII says that election manifestoes shall not contain anything repugnant to
the ideals and principles enshrined in the Constitution and further that it shall be consistent with
the letter and spirit of other provisions of Model Code.

Section 39 in the Conduct of Elections Rules, 1961 provide for the maintenance of secrecy of
voting by electors within polling station and voting procedure. It lays down some safeguards such as
every elector shall maintain secrecy of voting within the polling station; every elector shall vote
without undue delay; No elector shall be allowed to enter a voting compartment when another
elector is inside it etc. (Secret Ballot)

Section 62 of the RPA, 1951 specifies that no person shall vote in more than one constituency of
the same class and no person shall vote in the same constituency more than once. (One Person, One
Vote)

COUNTING OF VOTES
• The Returning Officer (RO) is responsible for conducting elections in a constituency, which also
includes counting of votes. Counting is performed by counting supervisors appointed by the
RO. (Random allotment of counting supervisors). Counting of votes begins with Electronically
Transmitted Postal Ballots (ETPB) and Postal Ballots (PB). In 2019, the Supreme Court of India
instructed ECI that printed VVPAT slips from randomly selected five polling stations in each
assembly segment of a parliamentary constituency should be matched with EVMs. If there is a
discrepancy between VVPAT count and EVM results, the printed paper slips count is taken as
final.

IN CASE OF EQUALITY OF VOTES

• If, after the counting of the votes is completed, an equality of votes is found to exist between any candidates,
and the addition of one vote will entitle any of those candidates to be declared elected, the RO shall forthwith
decide between those candidates by lot, and proceed as if the candidate on whom the lot falls had received an
additional vote.
 IN CASE OF RECOUNT
• When the announcement of the total votes polled by a candidate is made, a candidate or his agent dissatisfied
with the counting may, in writing, apply for recounting giving reasons why such recount is asked for. A
recount may be demanded when the votes obtained by two candidates are very close and there may be a
possibility of a small number of votes changing the result. The Returning Officer's decision on any such
application is final.
• No demand for a recount can be made after the Returning Officer has completed and signed the result sheet.
The Supreme Court has held that there can never be any hard and fast rule as to the circumstances when
an order of recount would be permissible and it should always be dependent upon the circumstances of the
case.

ELECTION PETITION
• Section 80 of the RPA, 1951 provides for a mechanism to settle disputes related to elections. It requires
matters of election to be challenged by an election petition.
• It can be presented by any candidate at such election or any elector within forty-five days from, but not
earlier than the date of election of the returned candidate i.e. a candidate who has been declared elected as
a member, or if there are more than one returned candidate at the election and the dates of their election are
different, the later of those two dates.
• The High Court has the jurisdiction to try an election petition.

PROCESS OF ELECTION TO THE RAJYA SABHA

• The representatives of the States and of the UTs in the Rajya Sabha are elected by the method of
indirect election. The representatives of each State and two UTs are elected by the elected
members of the Legislative Assembly of that State and by the members of the Electoral College for
that UT.
• This is done in accordance with the system of proportional representation by means of the single
transferable vote.
• Every State has a specific quota of seats in the Rajya Sabha which is fixed as per Schedule 4 of
the constitution. Elections to 1/3 of these seats occur every 2 years. The members are elected by the
respective State legislative assemblies. The voters are the MLAs in that State. Every voter is
required to rank candidates according to her or his preference. To be declared the winner, a
candidate must secure a minimum quota of votes, which is determined by a formula:

(Total number of votes polled / Total number of candidates to be elected + 1) + 1

• When the votes are counted, it is done on the basis of first preference votes secured by each
candidate, of which the candidate has secured the first preference votes. If after the counting of all
first preference votes, required number of candidates fail to fulfil the quota, the candidate who
secured the lowest votes of first preference is eliminated and his/her votes are transferred to those
who are mentioned as second preference on those ballot papers. This process continues till the
required number of candidates are declared elected.
IDENTIFYING PROBLEM AREAS WITH ELECTIONS IN INDIA
• Increasing cost of elections leading to unethical, illegal and even mafia provided electoral funding,
corruption, criminalisation and black money generation in various forms.
• With the constituents/electors being the same for all directly elected representatives from the lowest
Panchayat level to the Lok Sabha level, there are competing role expectations and conflict of
perceptions e.g. the constituents expect even members of the Union Parliament to attend to their
purely local problems.
• With the electorate having no role in the selection of candidates and with majority of candidates
being elected by minority of votes under the first-past-the-post system, the representative
character of the representatives itself becomes doubtful and their representational legitimacy is
seriously eroded.
• The question of defections under the Tenth Schedule.
• Inaccurate and flawed electoral rolls and voter identity leading to rigging and denial of voting
rights to a large number of citizens.
• Booth capturing and fraudulent voting by rigging and impersonation.
• Use of raw muscle power in the form of intimidation of voters either to vote against their will or
not to vote at all, thus taking away the right of free voting from large sections of society and
distorting the result thereby.
• Involvement of officials and local administration in subverting the electoral process.
• Criminalisation of the electoral process i.e. increasing number of contestants with serious
criminal antecedents.
• Divisive and disruptive tendencies including the misuse of religion and caste in the process of
political mobilisation of group identities on non-ideological lines.
• An ineffective and slow judicial process of dealing with election petitions, rendering the whole
process quite often meaningless.
• Fake and non-serious candidates who create major practical difficulties and are also used
indirectly to subvert the electoral process.
• Incongruities in delimitation of constituencies resulting in poor representation.
• Problems of instability, hung legislative houses and their relation to the electoral laws and
processes.
• Last but not the least, loss of systemic legitimacy due to decay in the standards of political
morality and decline in the spirit of service and sacrifice in public life.

ELECTORAL REFORMS IN INDIA

Committees regarding electoral reforms in India:
The Goswami Committee on Electoral Reforms (1990), The Vohra Committee Report (1993), The
Indrajit Gupta Committee on State Funding of Elections (1998), The Law Commission Report on
Reform of the Electoral Laws (1999), The National Commission to Review the Working of the
Constitution (2001), The ECI – Proposed Electoral Reforms (2004), The Second Administrative
Reforms Commission (2008) & The ECI Proposed Electoral Reforms (2016).
SOME OF THE RECOMMENDATIONS ARE:
Criminalisation of Politics
• Over the last two decades, the influence of criminals in the political arena has shown a tremendous
increase. Earlier these criminal elements used to influence the elections from outside but now they
have become a part of the political system by contesting the elections themselves. The Supreme
Court made the disclosure of criminal antecedents of candidates mandatory; following which
Election Commission of India started asking candidates contesting elections to the Parliament and
State Assemblies to file affidavits in the specified format disclosing the same as essential parts of
their nomination forms.
Money Power in Elections
• It is widely believed that contesting an election in India costs a significant amount of money that is
often much greater than the prescribed limits. The high cost of elections creates a high degree of
compulsion for corruption in the public arena, that the sources of some of the election funds are
believed to be unaccounted criminal money in return for protection, unaccounted funds from
business groups who expect a high return on this investment, kickbacks or commissions on
contracts, etc., and that Electoral compulsions for funds become the foundation of the whole super
structure of corruption.
• In view of the increasing cost of the election campaigns, it is desirable that the existing ceiling on
election expenses for the various legislative bodies be suitably raised to a reasonable level reflecting
the increasing costs. However, this ceiling should also apply to the political parties. As of now, there
is no limit on how much a political party can spend on elections.
• There is also a need to curb the high cost of campaigning to provide a level playing field for anyone
who wants to contest elections.
• Another recommendation that has been suggested by previous committees to reduce the cost of
elections is state funding of elections. The idea is to establish such conditions where even the parties
with modest financial resources may be able to compete with those who have superior financial
resources. However, before that elections need to be freed from the influence of all vitiating factors,
particularly, criminalisation of politics.
Misuse of Caste and Religion for Electoral Gains
• The use of religion, caste, community, tribe, and any other form of group identity for electoral gain
or for gathering political support should not be allowed and the Representation of the People Act,
1951, be suitably amended to give the Election Commission powers to take deterrent actions against
those candidates and political parties who resort to it. Such actions should include, but not limited
to, disqualifying candidates from contesting elections and de- registering the offending political
parties. Political parties should also not be allowed to use overtly religious, caste, community, tribe,
and other such expressions and words in their names.
Regulating Political Parties
• It is a desirable objective to promote the progressive polarisation of political ideologies and to
reduce less serious political activity. The ECI should progressively increase the threshold criterion
for eligibility for recognition so that the proliferation of smaller parties is discouraged. There are
more than 1600 political parties registered with the ECI, however, only a few ever contest elections.
ECI should be authorised to de-register such parties, which do not contest elections.
Political Reforms
• Institutionalisation of political parties: There is a need for a comprehensive legislation to regulate
party activities, criteria for registration as a national or State party, de-recognition of parties.
• Structural and organisational reforms: Party organizations— National, State and local levels;
Inner party democracy-- regular party elections, recruitment of party cadres, socialisation,
development and training, research, thinking and policy planning activities of the party.
• Party system and governance: There must be mechanisms to make parties viable instruments of
good governance.
• Deeper political reforms can be presented in three interrelated but distinct parts—Registration and
de-registration of political parties; Internal democracy in political parties & Financial
transparency in political parties.
 GS MAINS PAPER-II
Polity
SALIENT FEATURES REPRESENTATION OF THE PEOPLE ACT (RPA)

Provisions related to Elections in Indian Constitution:

• Elections in India [Part XV]
• Election Commission (Art 324),
• Universal Suffrage (Art 325)
• Adult suffrage (Art 326)
• Article 327 enables Parliament to enact provisions for elections
• Article 328 provides that states can enact provisions for House or Houses of the State
Legislature, if the Centre has not provided for the same.
• Under Article 329, courts are barred from questioning the Delimitation Act brought by the
Parliament and it also mentions that disputes related to elections can be called in question
only by an election petition in a manner and to the authority as decided by the appropriate
legislature.

Article 327 provided for enactment of certain provisions—

• Representation of People Act, 1950 (allocation of seats and delimitation of constituencies of
the Parliament and state legislature, officers related to conduct of elections, preparation of
electoral rolls and manner of filling seats in the Council of States allotted to UTs)
• Representation of People Act, 1951 (conduct of elections of the Houses of Parliament and
State Houses, the qualifications and disqualifications for membership of those Houses, the
corrupt practices and other offences at or in connection with such elections and the decision
of doubts and disputes arising out of or in connection with such elections)
• Delimitation Commission Act, 1952 (readjustment of seats, delimitation and reservation of
territorial constituencies and other related matters)
• Presidential and Vice-Presidential Election Act 1952 (conduct of Presidential and Vice-
Presidential election and mechanism for the settlement of any dispute)

The RPA provides for—Conduct of elections of the Houses, structure of administrative

machinery for the conduct of elections, Qualifications and disqualifications for membership,
Qualifications and disqualification of voters and preparation of Electoral Rolls, Corrupt practices
and other offences.
 REPRESENTATION OF PEOPLE ACT, 1950
Allocation of Seats:
• First Schedule = allocation of seats in Lok Sabha & reserved seats for SCs, STs in each state
• Second Schedule = total number of seats in the SLAs including the number of reserved seats
(direct elected candidates)
• Third Schedule = allocation of seats in the Legislative Councils of the States having such
Councils (elected + nominated candidates)

Officers involved:
• Chief Electoral Officer (for each state)—nominated by the Election Comm, in consultation
with govt, who will supervise the preparation, revision and correction of all electoral rolls
under the supervision & direction of EC;
• District election officers (for each Distt in a State)—designated by EC + consultation with
govt, who will coordinate and supervise all work in the district or in the area within his
jurisdiction in connection with the preparation and revision of the electoral rolls within the
district;
• Electoral registration officers—designated for each parliamentary, assembly and Council
constituency, by EC + consultation with Govt of the concerned state.

The electoral roll for each constituency is prepared in the prescribed manner and comes into
force immediately upon its final publication in accordance with the rules made under RPA,
1950. This electoral roll—
• shall, unless otherwise directed by the Election Commission, be revised in the prescribed
manner by reference to the qualifying date—before each general election to the House of
the People or to the Legislative Assembly of a State; and before each bye-election to fill a
casual vacancy in a seat allotted to the constituency;
• shall be revised in any year, if such revision has been directed by the Election Commission.

Disqualifications for registration in an electoral roll

If he is Not a citizen of India; or Unsound mind and stands so declared by a competent court;
or Disqualified from voting under the provisions of any law relating to corrupt practices and
other offences in connection with elections. A person shall not be entitled to be registered in
the electoral roll for more than one constituency.

Correction of entries in electoral rolls

Electoral registration officer for a constituency can demand an amendment, transposition or
deletion of an entry on an electoral roll (on the basis of an application made to him or on his
own motion, which is followed by an inquiry). The electoral registration officer shall give a
reasonable opportunity, to the person concerned, of being heard before taking any action in
relation to him.

Inclusion of names in electoral rolls

If someone’s name is not in the electoral roll, he may apply to the electoral registration officer
for the inclusion. If the applicant is registered in the electoral roll of any other constituency, the
electoral registration officer shall inform the electoral registration officer of that other
constituency, otherwise his name would be removed from the list (one he applied for). No
amendment, transposition, deletion or inclusion of an entry can be made to an electoral roll
—after the last date for making nominations for an election & before the completion of that
election.

REPRESENTATION OF PEOPLE ACT, 1951

Constitutional Provisions for Membership of Parliament (Article 84–Qualification of a MP)

Qualifications for Membership of Parliament under RPA, 1951:
• Council of States / Rajya Sabha (Section 3 of RPA, 1951)—He has to be an elector (can be
an elector anywhere in India) for a parliamentary constituency in India, to be represented in
the Council of States.
• Lok Sabha (Section 4 of RPA, 1951)—must be an elector for any Parliamentary constituency
in India. Seat reserved for the SC/ST in a state, must be contested by member of SC/ST of
that or any other state only. A seat reserved for the ST in the autonomous districts of
Assam, must be contested by a member of any of those ST and must be an elector for the
Parliamentary constituency in which such seat is reserved or for any other Parliamentary
constituency comprising any such autonomous district.

Constitutional Provisions for membership of a SLA (Article 173–Qualification of a MLA)

Qualifications for membership of a State Legislature under RPA, 1951
• Legislative Assembly (Section 5 of RPA, 1951)—A seat reserved for the SC/ST of that State
or Union Territory, must be contested by a member of SC/ST only and must be an elector for
any Assembly constituency in that State or Union Territory. (refer pdf for more info)
• Legislative Council (Section 6 of RPA, 1951)—must be an elector for any Assembly
constituency in that State.In order to be qualified to be chosen for a seat in the SLC or UT to
be filled by nomination by the Governor, he must be an ordinarily resident in the State or
Union Territory.
Constitutional Provisions for Disqualn for MP/MLA (Article 102 and Article 191)
A person shall be disqualified for being chosen as, and for being, a member of either House of
Parliament or of the State Legislature—
• If he holds an office of Profit under GoI or GoState, other than the offices declared as per
Parliament;
• Unsound mind (declared by a competent court)
• Undischarged insolvent;
• Not a citizen of India / taken any other citizenship
• Disqualified by or under any law made by Parliament
If a MP from either of the houses is disqualified under the Tenth Schedule, such
disqualification is called “Disqualification under Anti-Defection law”.

ANTI-DEFECTION LAW
It is mentioned in the 10th Schedule of the Constitution, introduced by 52nd CA (1985),
amended later by 91st CA (2005) which lays the conditions regarding disqualification on ground
of defection. It has following provisions—
• An elected MP/MLA, who has been elected from a certain political party, would be
disqualified on the grounds of defection, if she/he voluntarily relinquishes her/ his
membership of such political party or votes or abstains from voting in the House contrary to
any direction of such party.
• An Independent MP/MLA would also be disqualified if he joins another party after his
election;
• A nominated MP/MLA (not a member of a political party at the time of his nomination)
would also be disqualified if he joins a party after the expiry of a said period of 6 months.
• No disqualification would be incurred when a legislature party decides to merge with another
party and such decision is supported by not less than two-thirds of its members.
• Special provision has been made to enable a person who has been elected to the office of the
SP/DySP (Lok Sabha or SLA) or to the office of DyCH (Rajya Sabha) or to the office of Ch/
DyCH (SLC), to sever his connections with her/his political party without incurring
disqualification.
• The Chairman or the Speaker of a House has been empowered to make rules for giving effect
to the provisions of the 10th Schedule.

Disqualified MP/MLA shall also be disqualified to hold any remunerative political post for
duration of the period commencing from the date of her/his disqualification till the date on
which the term of her/his office as such member would expire or till the date on which she/he
contests an election to a House and is declared elected, whichever is earlier.
 Disqualification under RPA, 1951 (Chapter III of Part II) provides for 8 different
grounds for disqualification of MP/MLA:
• Section 8(1) provides for disqualification on conviction for certain offences—
- Crimes under IPC, 1860—offence of promoting enmity between different groups on
ground of religion, race, language; offence of bribery; domestic violence;
- PCRA, 1955 (punishment for the preaching and practice of “untouchability")
- Customs Act, 1962—which relates to the offence of importing or exporting prohibited
goods
- UAPA, 1967—being a member of an association declared unlawful
- FERA, 1973—dealings in foreign exchange, import and export of currency etc
- Narcotic Drugs and Psychotropic Substances Act, 1985
- Prevention of Corruption Act, 1988
The period of disqualification under the above offences will be six years from the date of such
conviction if sentenced to only fine, and six years from release in case of an imprisonment.
• Under Section 8(2), a person convicted for the contravention of any law regarding prevention
of hoarding or profiteering, adulteration of food or drugs or Dowry Prohibition Act, 1961 and
sentenced to imprisonment for not less than 6 months.
• Under Section 8(3), a person convicted of any other offence and sentenced to imprisonment
for not less than two years will be disqualified from the date of such conviction and will
continue to be disqualified for a further period of six years since his release.
• Section 8A provides for disqualification on ground of corrupt practices. Such
disqualification is subjected to the condition that the charges are established through an
election petition before the High Court and presented to the President as a High Court Order.
Further, the President will decide upon the disqualification and the duration of such
disqualification after obtaining an opinion from the Election Commission.
• Section 9 provides that a person who having held an office under the GoI or State govt in the
past and has been dismissed for corruption or for disloyalty to the State will be
disqualified for a period of five years from the date of such dismissal.
• Section 9A provides for disqualification for government contracts
• Section 10 provides for disqualification for office under government company if he is a
managing agent, manager or secretary of any company or corporation (other than a
cooperative society) in the capital of which the appropriate government has not less than 25%
share.
• Section 10A—Disqualification for failure to lodge account of election expenses
Disqualifications for Voting
Section 11A of RPA 1951 provides for disqualification arising out of a conviction and corrupt
practices. It mentions that if any person is convicted of an offence punishable under bribery,
promoting enmity between classes in connection with election, removal of ballot paper from
polling station, etc. He will be disqualified for voting at any election for a period of six years
from the date of conviction or from the date on which the order takes effect.

Provisions related to the declaration of assets and liabilities (Section 75A of RPA, 1951)
It states that every elected candidate for either Houses shall furnish information regarding
relating to the movable and immovable property owned by him, his spouse or his children; the
liabilities to any public financial institution or to the Central Government or State Government
within ninety days from the date of subscribing an oath for taking a seat in Parliament. The form
and manner of furnishing this information shall be prescribed in the rules made by the CH of RS
or the SP of LS, if not cooperated properly it will be considered the Breach of Privilege.

Provisions related to election expenses (Section 77 of RPA, 1951)

• Every candidate contesting in election to the House of the People or to the Legislative
Assembly of a State, shall, either by himself or by his election agent, keep a separate and
correct account of all expenditure.
• Current limits of LS Elections—max 70 lakh, NE max 54 lakh & SLA Elections—max 28
lakh, NE max 20 lakh.
• Every contesting candidate at an election shall lodge an account of his election expenses, with
the district election officer, within thirty days from the date of election of the elected
candidate.

Provisions for settlement of disputes

• No election shall be called in question except by an election petition presented to the High
Court having jurisdiction of the state involved.
• An election petition can either be filed by any candidate at such election or by any elector
within forty-five days from, the date of election of the elected candidate.
• If the High Court upholds the election petition, it declares the election of the selected
candidate to be void. However, an appeal can be made to the SC within a period of thirty days
from the date of the order of the High Court.

Corrupt practices and Electoral Offences

Section 123 of RPA, 1951 defines the corrupt practices like bribery, undue influence, inciting
religious sentiments, booth capturing etc . Chapter III of Part VII of RPA, 1951 provides for the
following electoral offences.
 CORRUPT PRACTICES ELECTORAL OFFENCES
Corrupt practices at elections are presently Electoral offences are laid down both in
SOURCE
specified in s 123 of the 1951 Act the IPC and in the RPA, 1951
When a corrupt practice is committed by a
candidate or by someone else with his The commission of an electoral offence
NET RESULT/
consent, it has the effect of vitiating the may not necessarily have such fatal
EFFECT
whole election & will result in the election bearing on the election result.
of the candidate being declared void.
The whole constituency suffers in as much
Only the persons committing the
EFFECT ON THE as the candidate loses his seat and the
electoral offences suffer for their
CONSTITUENCY constituency goes without representation in
criminal liability.
the legislature.
Cognisance of an electoral offence can
Any grievance relating to the commission be taken as soon as it is committed and
MANNER OF
of a corrupt practice can be initiated only the process of law set in motion
REPORTING
after the election is over and only in an immediately thereafter, in the same
AND
election petition in accordance with the manner in which any other criminal
REDRESSAL
provisions of art 329 and the RPA 1951. activity is investigated and tried under
the provisions of the CrPC.
Any electoral offence if committed will
Committing a corrupt practice entails only be visited with criminal liability and may
certain civil disabilities, like, result in imprisonment or with fine or
PUNISHMENT
disqualification for voting and for with both, apart from attracting the civil
contesting elections for certain period disabilities of voting and contesting
elections in the case of electoral offences

MODEL CODE OF CONDUCT (MCC)

A set of norms for conduct and behaviour on the part of the Parties and candidates, in
particular. It contains following 8 parts:
• Part I—certain minimum standards of good behaviour and conduct by parties and its
members.
• Part II & III—holding of public meetings and taking out processions by political parties and
candidates
• Part IV & V—how political parties and candidates should conduct themselves on the polling
day and at the polling booths
• Part VI—political parties and candidates to bring their complaints to the notice of the
observers appointed by the Election Commission for remedial action
• Part VII—deals with the parties in power
• Part VIII—Election manifestoes shall not contain anything repugnant to the ideals and
principles enshrined in the Constitution.
Need for MCC—Free and fair elections form the bedrock of democracy. It provides for a
level playing field for the contestants and an equal opportunity for all parties for presenting their
policies and programmes to voters. To ensure that the ruling party does not misuse its official
position to gain an unfair advantage in an election.

Evolution of MCC:
• 1968—Election Commission held meetings with political parties at State level and circulated
the Code of Conduct to observe minimum standard of behaviour to ensure free and fair
elections.
• 1974—Commission issued the code of conduct to the political parties in those States having
elections & the general elections.
• 1979—Election Commission, in consultation with the political parties further amplified the
code, adding a new Section placing restrictions on the “Party in power” so as to prevent cases
of abuse of position of power to get undue advantage over other parties and candidates.

Implications of applying the model code of conduct:

• Strictness of general conduct of political parties and candidates
• Ministers and those holding public offices are not allowed to combine official visits with
electioneering tours
• Issue of advertisements at the cost of public exchequer is prohibited.
• Grants, new schemes / projects cannot be announced when MCC is in force.

Enforcement of MCC
MCC has got the judicial recognition of the highest court of land. The apex court gave the ruling
(Union of India v/s Harbans Sigh Jalal) that the Code of Conduct would come into force the
moment the Commission issues the press release, which precedes the notification by a good two
weeks. MCC stays in force from the date of announcement of elections till the completion of
elections.

Challenges in implementing Model Code of Conduct

• Emergence of new forms of electoral malpractices (Media manipulation)
• Weakened capacity of the ECI to respond to violations of MCC
• Flouting the self-regulatory social media code evolved by the ECI
• Misuse of narrative by the ruling party over sensitive issues such as national security,
which do not fall under the ambit of MCC
Status of Model Code of Conduct:
• It does not a have a statutory backing and it is more a consensus driven code arrived at
after consultation with all political parties to ensure free and fair elections;
• It does not attract any punitive action;

SHOULD MCC BE GIVEN LEGAL STATUS?

Parliamentary Standing Committee on Law and Justice (2013) held that most of the provisions
of the MCC are already contained in various laws and are therefore enforceable. Some other
offences were already covered in the RPA, 1951. It observed that ECI strictly enforces the
provisions of MCC which are relatable to other statutes enacted by Parliament or otherwise.
The committee also recommended to enact law for giving statutory back up to MCC
leaving no vacuum for ECI to exercise its power which is residuary in nature. It suggested
that the instructions/orders issued by Election Commission of India under Article 324 of the
Constitution sometimes encroach upon legislative power of Parliament. Another reason for the
above recommendation is the absence of an immediate appeal mechanism against the decision
of the returning officer to cancel the nomination of a candidate.
Arguments against giving the legal status to the MCC:
• Decision making power will go to the Judiciary and hence, swiftness, expedition &
promptness in dealing with the cases of violation of MCC will be gone.
• If MCC becomes a law, it means that a complaint would lie with police/Magistrate,
involving a long judicial proceedings, which is likely to be completed after the election is
completed.
• The Election Commission has argued against making the MCC legally binding; stating that
elections must be completed within a relatively short time (close to 45 days), and judicial
proceedings typically take longer.

LANDMARK JUDGMENTS ON ISSUES AROUND ELECTIONS

• An Accused can contest the election but cannot vote (Jan Chaukidari vs. Union of India)
The judgment says that a person who is confined in a prison or in the lawful custody of
police, loses the right to vote [S. 62(5) of RPA, 1951], and is hence disqualified from
contesting elections. The Supreme Court reasoned that it was reasonable to deny voting rights
to convicted prisoners, under trials and those in police custody (because of criminalisation of
politics). SC ruled that the additional resources required to make them eligible to cast vote.
Right to vote is a statutory right, and hence is under the regulation by the legislature, subject
to Article 325 and 326 of the constitution.
• MPs, MLAs to be Disqualified on Date of Criminal Conviction
In Lily Thomas v. Union of India, 2013 the Supreme Court declared Section 8 (4) of the RPA,
1951, (RPA) as unconstitutional. This section allowed legislators a three-month window to
appeal against their conviction, effectively delaying their disqualification until such appeals
were exhausted. Section 8 (4) of RPA gives protection to MPs and MLAs as they can continue
in office even after conviction if an appeal is filed within three months.

• Voters’ Right to Know

In Public Interest Foundation vs Union of India, 2020 the Supreme Court directed political
parties to publish criminal antecedents of contesting candidates along with reasons for
fielding each one of these candidates, notwithstanding their ‘winnability’.
Acc to Association for Democratic Reforms (ADR), 233 (49%) of the 539 winners for Lok
Sabha 2019, have declared criminal cases against themselves. Out of these, 159 (29%)
winners have declared serious criminal cases. Out of the 542 winners analysed during Lok
Sabha 2014 elections, 185 (34%) winners have declared criminal cases against themselves.
112 (21%) winners have declared serious criminal cases. In 1999, the 170th Law
Commission Report on Electoral Reforms was the first to suggest that a new Section 4A be
added to the Representation of the People Act, 1951 mandating that a person shall be
ineligible to contest elections unless they file an affidavit declaring their assets along with a
declaration whether charges had been framed against them by a criminal court.

• Voter’s Right to Cast Negative Vote and Right to Secrecy

Supreme Court, in PUCL v. Union of India, 2013 upheld the constitutional right of citizens to
cast a negative vote in elections; The Supreme Court held that a voter could exercise the
option of negative voting and reject all candidates as unworthy of being elected. The court
directed the Election Commission to provide the NOTA button in the EVM. The right to cast
a negative vote will foster the purity of the electoral process and also fulfill one of its
objectives, namely, wide participation of people.
So, two main key components were laid down by Supreme Court—Right to vote also includes
a right not to vote i.e. right to reject & Right to secrecy is an integral part of a free and fair
election.

• The VVPAT Ruling

SC in the case of Subramanian Swamy vs ECI, 2013 held that VVPAT (Vote Verifiable Paper
Audit Trial) is “indispensable for free and fair elections” . It directed the ECI to equip
Electronic Voting Machines (EVMs) with VVPAT systems to “ensure accuracy of the VVPAT
system”.
• Ruling on Election Manifesto
Supreme Court said that freebies promised by political parties in their election manifestos
shake the roots of free and fair polls, and directed the Election Commission to frame
guidelines for regulating contents of manifestos. The court held that the concept of state
largesse (welfare generosity) is essentially linked to the Directive Principles of State Policy.

• Ruling on Nomination Papers

The SC in, 2013 ruled that the returning officer can reject nomination papers of a
candidate for non-disclosure and suppression of information, including that of assets and
their criminal background. The apex court said that voters have fundamental right to know
about their candidates and leaving columns blank in the nomination paper amounts to
violation of their right.

• Banning religion and caste from election campaign

A seven-judge Supreme Court bench ruled by a 4-3 majority that “religion, race, caste,
community or language would not be allowed to play any role in the electoral process”.
This met with some criticism a well—difficult to define what kind of an appeal is religious
appeal, violates the right to freedom of speech (Art 19), RPA already has provisions to curb
hate speech.

INDEPENDENCE OF THE ELECTION COMMISSION

• There is no constitutional protection for all three of its members (2 ECs can be removed by
govt on recomm of CEC)
• ECI budget is not ‘charged’ upon the CFI but voted and approved by Parliament (unlike
CAG, UPSC)
• There is no independent secretariat for the ECI due to which it has to depend on DoPT to
appoint its officers.

SIMULTANEOUS ELECTIONS
It allows governments to devote four years for governance. Frequent elections lead to only
winning agenda of the political parties, not attending the people’s grievances. Vicious circle of
continuous elections affects stability. If local elections are included there is always an election
taking place in our country. Simultaneous Elections will reduce the huge economic burden of
frequent elections.

The key recommendations around conducting simultaneous elections are as follows:

• Advancing elections of some SLAs by making necessary orders so that it can be held with
the election of Lok Sabha.
• The elections to other Legislative Assemblies should be held by making similar adjustments
in phases with a view to reducing its frequency until the desired goal of one election for Lok
Sabha and to all the Legislative Assemblies simultaneously is achieved.
• An alternative solution could be to hold elections to LS/SLAs simultaneously but to
withhold the results of elections till after the expiry of term of the SLAs concerned—the
interval not exceeding six months.
• Another proposal would be to consider provisions to have all elections, falling due in a year
together in a particular period of the year.
Challenges to holding Simultaneous Elections
• It is almost impossible to achieve in practice as Assemblies might get dissolved at an
untimely manner due to political realities.
• According to Article 85 and Article 174, elections to Lok Sabha and Legislative assemblies
have to be held within six months (respectively) of dissolving either of them. This is not
feasible if elections are held only at fixed durations.
• Frequent elections bring the politicians back to the voters and enhance the answerability and
accountability of politicians to the public.
• May mix up issues of local and national issues in the minds of the voters, This may give a
boost to regional and local issues, while national issues can take a set-back.
• The issue of logistics and requirement of security personnel, election and administrative
officials.

EXIT POLLS & OPINION POLLS

• An exit poll is a post-election survey conducted immediately after people have voted. EC
bans exit polls from the time the poll begins till half-an-hour after the polling ends. Exit
poll results cannot be published till the last round of elections is over.
• An opinion poll is a pre-election survey to gather voters’ views on a range of election-
related issues. Results of any opinion poll or any other poll survey in any electronic media is
prohibited during the period 48 hours, including the hour fixed for conclusion of voting in
each of the phases in connection with the elections.
• Opinion and Exit polls are useful to gain insight into what people think of the policies and
programmes of the government. However, both opinion polls and exit polls hinder the
conduct of free and fair elections, because of Influence of Paid news.
• An independent regulator that could set up standards of professional integrity for all poll
research and accredit the agencies better scrutiny. He can be empowered to setup standards on
parameters of survey like sample size, sampling methodology, timeframe, quality of training
of research staff etc.
 UMESH SINHA COMMITTEE ON SECTION 126 OF RPA, 1951
• It recommended that the provision of ‘election silence’ be extended to cover print and social
media, internet, cable channels and online version of print media. Section 126 also restrains
display of any election matter by means of cinematograph, television or other similar
apparatus.
• The committee suggested that social media agencies must be asked to label political
advertisements to separate them from other content & they should work with ECI, to flag any
violation of electoral law.
• It also suggested that Political parties should release their manifesto at least 72 hours before
voting ends in the first phase of polls.

REFORMS IN FUNDING TO POLITICAL PARTIES & ELECTORAL BONDS

These were mentioned in Union Budget of 2017-18
• The maximum amount of cash donation that a political party can receive will be 2000/- from
one person.
• Political parties will be entitled to receive donations by cheque or digital mode from their
donors.
• An amendment is being proposed to the RBI Act to enable the issuance of electoral bonds
(India will be the first country in the world) in accordance with a scheme that the Government
of India would frame in this regard.
• Every political party would have to file its return within the time prescribed in accordance
with the provision of the Income-tax Act.
• The existing exemption to the political parties from payment of income-tax would be
available only subject to the fulfilment of above conditions.
In a report, the Association for Democratic Reform highlighted that 75% funding to parties
came from anonymous sources between 2004-05 to 2014-15.

STATE FUNDING OF ELECTIONS

Indrajit Gupta Committee (1998)
• It supported state funding of elections, observing full constitutional, legal justification as well
as on ground of public interest. It recommended that state funding of elections can establish a
fair playing field for parties with less money.
• However, it recommended two-limitations— (a) state funds should be given only to national
and state parties allotted a symbol and not to independent candidates; (b) in the short-term
state funding should only be given in kind, in the form of certain facilities to the recognised
political parties and their candidates.
1999 Law Commission of India
• This report concluded that total state funding of elections is “desirable” so long as political
parties are prohibited from taking funds from other sources.
• It also strongly recommended that the appropriate regulatory framework be put in place with
regard to political parties before state funding of elections is attempted.

2nd ARC Report

• The “Ethics in Governance”, a report of the Second Administrative Reforms Commission
(2008) also recommended partial state funding of elections for the purpose of reducing
“illegitimate and unnecessary funding” of elections expenses.

Arguments in favour of State Funding

• Increases transparency inside the party and also in candidate finance
• Limit the influence of wealthy people and rich mafias
• Demand for internal democracy in party, women representations, representations of weaker
section can be encouraged
• With high levels of poverty in India, it is difficult for parties to gather funds therefore, they
depend upon funding by corporate and rich individuals.

Arguments against state funding

• Tax payers are forced to support even those political parties or candidates, whose view they
do not subscribe to;
• Increases the distance between political leaders and ordinary citizens;
• Political parties tend to become organs of the state, rather than being parts of the civil society.

ELECTRONIC VOTING MACHINES (EVM)

It consists of a "control unit" and a "balloting unit". The control unit is with the Election
Commission-appointed polling officer; the balloting unit is in the voting compartment into
where voter casts her vote in secret. They are manufactured by Electronics Corporation of India
Limited (ECIL) and Bharat Electronics Limited (BEL).
Controversies surrounding EVMs:
• Transparency (electronic display of the voter’s selection may not be the same as the vote
stored electronically in the machine’s memory)
• Verifiability (only the vote number can be verified and not the voting choice)
• Secrecy
• Possibility of hacking
• Malfunctioning EVM
ECI advocates for the use & trust on EVMs, with safety measures—Non-reprogrammable,
No external communication, Secure Source Code, One Vote per Elector, Time stamping of votes,
Secure against post-manufacturing tampering, Procedural Checks and Balances like functional
checks, trial run, random allocation, multi-stage testing, dry run etc.

TOTALIZER MACHINES
• An interface, to which a cluster of EVMs can be connected simultaneously and the
consolidated result of the group of EVMs can be obtained without disclosing the votes polled
by a candidate polling-station-wise.
• It will add an extra layer of security to the voting process thus upholding the basic principle of
secret ballot as the present EVMs do not provide any avenues for mixing of votes.
• The first recommendation for amending the Election Rules to provide for the use of Totalizer
Machine was put forward by Election Commission of India (ECI) in 2008. It was also
recommended by Law Commission in its 255th Report of 2015.
 GS MAINS PAPER-II
Polity
MINISTRIES AND DEPARTMENTS OF THE GOVERNMENT

Article 77 of the Indian Constitution specifies the power of the President in terms of the conduct
of business of the Govt of India. Exercising powers vested by virtue of Article 77, the President
has made the “The Government of India (Allocation of Business) Rules”.

Structure within the Departments

• A Deptt is responsible for formulation of policies of the government in relation to business
allocated to it and also for the execution and review of those policies. It is further divided into
—wings, divisions, branches and sections.
• A Deptt is headed by a Secretary to the GoI, who is the administrative head of the
department and principal adviser of the Minister on all matters of policy and administration
within the deptt.
• Wing—The work in a department is normally divided into wings with a Special Secretary/
Additional Secretary/Joint Secretary in charge of each wing.
• Division—A wing normally comprises a number of divisions each functioning under the
charge of an officer of the level of Director/Joint Director/Deputy Secretary.
• Branches—A division may have several branches each under the charge of an Under
Secretary or equivalent officer.
• Section—A section is generally the lowest organisational unit in a department with a well-
defined area of work, consists of assistants and clerks supervised by a Section Officer.

Attached or Subordinate Offices

Attached offices are generally responsible for providing executive direction required in the
implementation of the policies laid down by the department to which they are attached.
Subordinate offices generally function as field establishments or as agencies responsible for the
detailed execution of the policies of government. They function under the direction of an
attached office.

Empowered Group of Ministers (EGoM)

• A Group of Ministers (GoM) of the Union Government who, after being appointed by the
Cabinet, a Cabinet Committee or the Prime Minister for investigating and reporting on such
 matters as may be specified, are also authorised (empowered) by the appointing authority to
take decisions in such matters after investigation.
• It is distinct from a Group of Ministers (GoM) in the sense that a GoM only investigates and
reports to the Cabinet, which takes the decision. On the other hand, an EGoM additionally
takes decisions on matters it is authorised for, and such decisions have the force of the
Government decision.
• Both EGoM as well as the GoM get appointed under the Government of India’s Transaction
of Business Rules 1961, which provides that ‘Ad hoc Committees of Ministers including
Group of Ministers may be appointed by the Cabinet, the Standing Committees of the Cabinet
or by the Prime Minister for investigating and reporting to the Cabinet on such matters as may
be specified, and, if so authorised by the Cabinet, Standing Committees of the Cabinet or the
Prime Minister, for taking decisions on such matters.’

Alternative Mechanisms
They are instruments usually appointed by the Cabinet, a Cabinet Committee or the Prime
Minister for deliberating over or investigating and reporting on such matters as may be specified
by the appointing authority. In 2017, the government set up an alternative mechanism to fast-
track consolidation among public sector banks to create strong lenders.

Recommendations at Various Levels of Government Machinery (2nd ARC)

• The union Government should primarily focus on the following core areas—Defence,
International Relations, National security, Justice and rule of law; Human development
through access to good quality education and healthcare to every citizen; Infrastructure and
sustainable natural resource development; Social security and social justice; Macro-economic
management and national economic planning & National policies in respect of other sectors.
• Subjects which are closely inter-related should be dealt with together
• Separation of policy-making functions from execution—The Ministries should give greater
emphasis to the policy-making functions while delegating the implementation functions to the
operational units or independent organizations/agencies.
• Coordinated implementation in Policy making
• Flatter structures—reducing the number of levels and encouraging team work
• Well defined accountability
• Appropriate delegation—to avoid delays, inefficiency and demoralisation of the subordinate
staff
• Rationalisation of Government staff pattern & Criticality of operational units
 GS MAINS PAPER-II
Polity
LOCAL GOVERNANCE (PRIs & ULBs)

HISTORICAL BACKGROUND & EVOLUTION OF PRIS

In Vedic state, village acted as unit of admn with ‘Gramini’ as imp village functionary. Vedic
texts also mentions the Samitis (Assembly) & Sabha where discussions took place.
Arthashatra by Kautilya provides an exhaustive account of the system of village administration
prevailing at that time.
Medieval period witnessed a period of political change that was marked with centralisation of
leadership and decline in local governance.
In Colonial Period, production for the market took the place of production for consumption in
the village itself (destroyed the self-sufficiency of the villages). Under Ryotwari system, the
government dealt directly with the individual cultivator and not through the village panchayat.

Some of the initiatives by Britishers, to sustain and restore local self-governing institutions in
India—
• The Regulation of 1816 conferred judicial authority to the village panchayats in a few
provinces. Under this Regulation, the Panchayats under the Madres Presidency were allowed
to try cases if both the parties agreed to submit the dispute to the panchayat
• The Mayo’s resolution, 1870 gave impetus to the development of local institutions by
enlarging their powers and responsibilities.
• Bengal Village Chowkidary Act, 1870 empowered the District Magistrate to constitute a
panchayat in any village if majority of the adult male residents apply in writing to the District
Magistrate to constitute a panchayat in such village.
• The Resolution on Local Self Government (Lord Ripon’s Resolution) 1882 intended to
build local self-government institutions on the foundations of local self-government system of
ancient India and he designed them as an instrument of political and popular education.
• Morley Minto Reforms, 1909 incorporated the recommendations of Royal Commission on
Decentralization (1907) which led to the enlargement of the election process in the Local Self
Government structure in India.
• Montagu Chelmsford reforms of 1919 introduced dyarchy system where responsibility of
the local government was given to ministers and the ministers enacted number of laws to
revive the Panchayati raj institutions. Also the municipalities were vested with more powers
to impose taxes. Village Panchayat Act was also passed and made the panchayats a legal
body.
MAHATMA GANDHI AND PANCHAYATI RAJ
He was a staunch advocate of local self-government. In his book, India of My Dreams, he
writes—“Independence must begin at the bottom. Thus, every village will be a Republic or
Panchayat having full powers. It follows, therefore, that every village has to be self-sustained
and capable of managing its affairs even to the extent of defending itself against the whole
world”. In 1920, he introduced self government in villages with a view to improve their
economy & self sufficiency. He put forward the idea of ‘Gram Swarajya’ or village republic.
The Panchayats in the villages became the part of ideology of the Indian National Movement.

Post Independence period

• Article 40 (DPSP) provisioned that “the state shall take steps to organise village panchayats
and endow them with such powers and authority as may be necessary for them to function as
units of self-government”.
• Balwant Rai Mehta Committee to examine the workings of the National Extension Service
and Community Development Program. The Committee recommended a scheme for
“democratic decentralisation”, as well as a three-tier system with directly elected members
at the village level. Rajasthan became the 1st state to adopt the PR system.
• G.V.K. Rao Committee 1985 recommended making the “district” as the basic unit of
planning while the L. M. Singhvi committee recommended providing more financial
resources and constitutional status to the panchayats.
• The formalisation of the system of Panchayati Raj in India culminated in the 73rd and 74th
Constitutional Amendment Acts of 1992.

73RD CONSTITUTIONAL AMENDMENT ACT OF 1992

It marks a new era in the federal democratic set up of the country. It inserted Part IX in the
Constitution and accorded Panchayats a Constitutional status as institutions of local self-
governance for rural India. It also added Eleventh Schedule to the constitution that contains 29
functional items for Panchayats.
• 3-tier system of Panchayati Raj for all States having population of over 20 lakhs.
• Panchayat elections regularly held every 5 years.
• Reservation of seats for SC, ST and women (not less than one-third of seats)
• The seats are to be reserved for SCs and STs in proportion to their population at each level.
Out of the Reserved Seats, 1/3rd have to be reserved for the women of the SC and ST. Out of
the total number of seats to be filled by the direct elections, 1/3rd have to be reserved for
women.
• Appointment of State Finance Commission to make recommendations as regards the financial
powers of the Panchayats.
Administrative Structure of the PRIs
• At the base is the ‘Gram Panchayat‘. A Gram Panchayat covers a village or group of villages.
• The intermediary level is the Mandal (also referred to as Block or Taluka). These bodies are
called Mandal or Taluka Panchayats. The intermediary level body need not be constituted in
smaller States.
• At the apex is the Zilla Panchayat covering the entire rural area of the District.
• The amendment also made a provision for the mandatory creation of the Gram Sabha. The
Gram Sabha would comprise all the adult members registered as voters in the Panchayat area.
Its role and functions are decided by State legislation.

Elections to the PRIs

• Directly elected by People; term of each panchayat body is 5 years.
• If the State government dissolves the Panchayat before the end of its five year term, fresh
elections must be held within six months of such dissolution. The ‘interregnum’ panchayat
so formed later shall continue only for the remainder of the period for which the previous
dissolved panchayat would have continued.
• No person shall be disqualified on the ground that he is less than 25 years of age if he has
attained the age of 21 years.

State Election Commission

• The superintendence, direction and control of the preparation of electoral rolls and the
conduct of all elections to the panchayats lies with the SEC, appointed by the Governor. It
is an independent office and is not linked to nor is this officer under the control of the ECI.

Financial Powers of the PRIs

“Article 243-G” provides that the States/UTs may, by law, endow the Panchayats with such
powers and authority as may be necessary to enable them to function as institutions of self-
government and to prepare plans for economic development and social justice and their
implementation including those in relation to the matters listed in the Eleventh Schedule.
“Article 243-H”, State Legislatures have been empowered to enact laws—
• to authorise a Panchayat to levy, collect and appropriate some taxes, duties, tolls and fees;
• to assign to the Panchayat, some taxes, duties, tolls levied and collected by the State Govt;
• to provide for making grants-in-aid to the Panchayats from the Consolidated Fund of the
State;
• to provide for constitution of such funds for Panchayats for crediting all money received by or
on behalf of Panchayats and also the withdrawal of such money therefrom.
State Finance Commission (SFC) would review the distribution of revenues between the State
and local governments on the one hand and between rural and urban local governments on the
other. It would examine the financial position of the local governments in the State.

Role of Panchayati Raj in the democracy

• Political consciousness
• Strengthening democratic institutions and processes
• Planning and development at the grass-root levels
• Giving voice to local demands
• Executive Institution, carrying out various civic functions
• Breaking hierarchies like caste & religion differences

Challenges related to PRIs

• There is only minimum administrative and fiscal decentralisation, which remain de facto
under the control of the State Governments.
• They are not given adequate responsibilities to levy and collect taxes, fees, duties or tolls;
• Recommn of SFCs have been either accepted partially or implemented half-heartedly.
• Gram Sabhas have not been empowered and strengthened to ensure people’s participation.
• In most States, Panchayats do not have the power to recruit their staff and determine their
salaries, allowances and other conditions of service.
• The Constitution does not stipulate any size for Panchayats, either in terms of population or
in area.

2ND ARC RECOMMENDATION FOR RURAL GOVERNANCE

• States should ensure that as far as possible Gram Panchayats should be of an appropriate
size which would make them viable units of self-governance and also enable effective popular
participation.
• Panchayats should have power to recruit personnel and to regulate their service conditions
subject to such laws and standards as laid down by the State Government.
• The provisions in some State Acts regarding approval of the budget of a Panchayat by the
higher tier or any other State authority should be abolished.
• State Governments should not have the power to suspend or rescind any resolution
passed by the PRIs or take action against the elected representatives on the ground of abuse of
office, corruption etc. or to supersede/dissolve the Panchayats. It should lien with the Local
Ombudsman.
• States must undertake comprehensive activity mapping with regard to all the matters like
planning, budgeting and provisioning of finances mentioned in the 11th Schedule.
• A comprehensive exercise needs to be taken up regarding broadening and deepening of the
revenue base of local governments. This exercise will have to simultaneously look into four
major aspects of resource mobilisation viz. (i) potential for taxation (ii) fixation of realistic
tax rates (iii) widening of tax base and (iv) improved collection.

Panchayats (Extension to the Scheduled Areas) Act (PESA), 1996

The provisions of the 73rd amendment were not made applicable to the areas inhabited by the
Adivasi populations in many States of India; This PESA extends Part IX of the Constitution
with certain modifications and exceptions, to the Fifth Schedule Areas notified under
Article 244(1) of the Constitution.
Under the PESA Act, {section 4 (b)}, a village shall ordinarily consist of a habitation or a group
of habitations or a hamlet or a group of hamlets comprising a community and managing its
affairs in accordance with traditions and customs.
Under the PESA Act, {section 4 (c)}, every village shall have a Gram Sabha consisting of
persons whose names are included in the electoral rolls for the Panchayat at the village level.
PESA exclusively empowers the Gram Sabha to safeguard and preserve the—traditions and
customs of the people, and their cultural identity, community resources, customary mode of
dispute resolution & carry out executive functions to—approve plans, programmes and
projects for social and economic development; identify persons as beneficiaries under the
poverty alleviation and other prog.
PESA Empowers Gram Sabha/Panchayat at appropriate level with—
• right to mandatory consultation in land acquisition, resettlement and rehabilitation of
displaced persons;
• mandatory recommendations by Gram Sabha or Panchayat at appropriate level for
prospective licenses/lease for mines and concession for the exploitation of minor minerals;
• regulate sale/consumption of intoxicants
• ownership of minor forest produce
• prevent land alienation and restore alienated land
• manage village markets
• control over money lending to STs
• control over institutions and functionaries in social sector, local plans including Tribal sub
plans and resources.
 URBAN LOCAL BODIES (ULBS)
• The formation of Madras Municipal Corporation in 1687 earmarked the era of Urban Local
Governance in India.
• In 1882, Lord Ripon – the Viceroy of India - passed a resolution of local self-government
which laid the democratic forms of municipal governance in India.
• In 1953, the U.P. Government took a decision to set-up Municipal Corporations in five big
cities of Kanpur, Agra, Varanasi, Allahabad and Lucknow, popularly known as KAVAL
Towns.
• In 1985, the Central Government appointed the National Commission on Urbanisation,
which gave its report in 1988. This was the first commission to study and give suggestions on
all aspects of urban management.
• 74th Amendment Act, 1992 gave constitutional status to the Urban Local governance bodies.

Features of 74th Amendment Act, 1992

• The Act stipulated 3 levels of municipal bodies to be set up—(i) a ‘nagar panchayat (town
council)’ for transitional areas (ii) ‘municipal council’ for a smaller urban area (iii)
‘municipal corporation’ for a larger urban area.
• The term for the ULBs was five years. The Act empowered an independent SEC for the
conduct, superintendence and control of municipal elections.
• Seats be reserved for SCs and STs in proportion to their population in the municipal area.
• The mandatory provision of reserving 1/3rd of every elected urban body for women
representatives. Reservations were also provided for in the position of chairpersons of
municipalities.
• For the larger municipalities with populations of 300,000 and above, wards committees were
made mandatory.
• For the purposes of planning, a District Panning Committee had to be constituted.
• A State Finance Commission was also made mandatory, charged with the task of reviewing
the financial position of the municipalities and making recommendations for the financial
health of ULBs.

Article 243R (composition of Municipalities)

All the seats in a Municipality are filled by persons chosen by direct election from the
territorial constituencies in the Municipal area and for this purpose each Municipal area shall
be divided into territorial constituencies to be known as “wards”. The Legislature of a State
may, by law, provide the manner of election of the Chairperson of a Municipality.
Article 243T (Reservation of seats)
Seats shall be reserved for SCs & STs acc to their population proportion. Not less than one-third
(including the number of seats reserved for women belonging to the SCs & STs) of the total
number of seats to be filled by direct election in every Municipality are reserved for women and
such seats may be allotted by rotation to different constituencies in a Municipality.

Article 243W (Powers, authority and responsibilities of Municipalities)

The state legislature by law may endow—(i) the Municipalities with such powers and authority
as may be necessary to enable them to function as institutions of self-government and such law
may contain provisions for the devolution of powers and responsibilities upon Municipalities;
(ii) the Committees with such powers and authority as may be necessary to enable them to carry
out the responsibilities conferred upon them including those in relation to the matters listed in
the 12th Schedule.

Impact of the act on the Urban governance:

• Recognition of ULBs as the third tier of governance
• Wider political representation
• Promote the principle of Gender Empowerment
• Independent Municipal Elections
• Introduction of ward committees
• Reformation of Municipal Financial (compulsory quinquennial review of the state of the
fiscal health of ULBs & its submission to the legislature)

Challenges related to ULBs

• Use of discretionary power by states
• Political patronage
• Act is silent on the Status of Mayor
• Lack of devolution of power
• Recommendations of the SFCs have largely been ignored at the state level & have not led to
any substantive transfer of resources to ULBs
• GST is silent on the financial share of ULBs; on the other, it has subsumed many of the local
taxes
2nd ARC Recommendations on Urban Governance
• The functions of chairing the municipal council and exercising executive authority in urban
local government should be combined in the same functionary i.e. Chairperson or Mayor. The
Chairperson/Mayor should be directly elected by popular mandate through a city-wide
election. The Chairperson/Mayor will be the chief executive of the municipal body. Executive
power should vest in that functionary.
• The following principles should be followed while administering all taxes—The manner of
determination of tax should be made totally transparent and objective; As far as possible, all
levies may be based on self-declaration of the tax payer but this should be accompanied by
stringent penalties in case of fraud or suppression of facts by the tax payer; There should be
an independent unit under the Chief Executive to monitor the collection of all taxes.
• The capacity of the municipalities to handle legal and financial requirements of responsible
borrowing must be enhanced. Municipal bodies should be encouraged to borrow without
Government Guarantees.
• Land banks available with the municipalities as well as with the development authorities
should be leveraged for generating resources for the municipalities (exclusively to finance
infrastructure and capital expenditure)
• Citizens’ charters in all Urban Local Bodies should specify time limits for approvals relating
to regulatory services such as licenses and permits.
 Panchayats (Extension to the Scheduled Areas) Act, 1996

The provisions of Part IX of the constitution relating to the Panchayats are not applicable
to the Fifth Schedule areas. Parliament may extend these provisions to such areas,
subject to such exceptions and modifications as it may specify. At present (2019), ten
states have Fifth Schedule Areas—AP, TL, CG, GJ, HP, JH, MP, MH, OD, RJ.

Features of the PESA Act:

• A state legislation on the Panchayats in the Scheduled Areas shall be in consonance
with the customary law, social and religious practices and traditional management
practices of community resources.
• Every village shall have a Gram Sabha consisting of persons whose names are included
in the electoral rolls for the Panchayat at the village level.
• Every Gram Sabha shall be competent to safeguard and preserve the traditions and
customs of the people & their cultural identity.
• Every Gram Sabha shall—approve of the plans, programmes and projects for social
economic development & be responsible for the identification of beneficiaries under
poverty alleviation and other programmes.
• Every Panchayat at the village level shall be required to obtain from the Gram Sabha,
a certification of utilisation of funds for the above plans.
• The reservation of seats in the Scheduled Areas in every Panchayat shall be in proportion
to the population of the communities for whom reservation is sought to be given under
Part IX of the Constitution. (However, the reservation for the Scheduled Tribes shall not
be less than one-half of the total number of seats)
• The state government may nominate such Scheduled Tribes which have no
representation in the Panchayat at the intermediate level or at the district level. But
such nomination shall not exceed one-tenth of the total members to be elected in that
Panchayat.
• The Gram Sabha or the Panchayats at the appropriate level shall be consulted before
making the acquisition of land in the Scheduled Areas for development projects.
• Planning and management of minor water bodies in the Scheduled Areas shall be
entrusted to Panchayats at the appropriate level.
• The recommendations of the Gram Sabha or the Panchayats at the appropriate level
shall be mandatory for grant of prospecting licence or mining lease for minor
minerals in the Scheduled Areas.
• Gram Sabha are endowed specifically with—the ownership of MFP, power to prevent
alienation of land in the Scheduled Areas, Power to manage village markets, power
to exercise control over money lending to STs.
• The State Legislations shall contain safeguards to ensure that Panchayats at the higher
level do not assume the powers and authority of any Panchayat at the lower level.
 GS MAINS PAPER-II
Polity
QUASI JUDICIAL BODIES
“An organ of government, other than a court or legislature, which affects the rights of private
parties through adjudication or rule-making”. Such a body can adjudicate and decide upon a
situation and impose penalty upon the guilty or regulate the conduct of an individual or entity.

Features of Quasi-Judicial bodies

• They act as a medium where parties can resolve their disputes without approaching the
judiciary;
• These bodies not just give advice or resolve issues, but they also act as a punishing authority
concerning matter that involve their jurisdictions, such as the Consumer Disputes Redressal
Commissions;
• These bodies only handle those cases which come under its expertise, such as tax tribunals,
unlike the judiciary whose powers are much more wide-ranged.

Reasons for emergence of Quasi-Judicial Bodies in India

• Overburdening of judiciary
• Complexity of laws
• Ever-increasing Cost of ordinary Judiciary

Quasi-judicial bodies vs Judicial bodies

• Judicial decisions are bound by precedent in common law, whereas quasi-judicial decisions
usually are not so bound.
• In the absence of precedent in common law, judicial decisions may create new law, whereas
quasi-judicial decisions must be based on conclusions of existing law.
• Quasi-judicial bodies need not follow strict judicial rules of evidence and procedure.
• Quasi-judicial bodies must hold formal hearings only if mandated to do so under their
governing laws or regulations.
• Quasi-judicial bodies, unlike courts, may be a party in a matter and issue a decision thereon at
the same time.

“Acts, which are required to be done on the subjective satisfaction of the administrative
authority, are called ‘administrative’ acts, while acts, which are required to be done on objective
satisfaction of the administrative authority, can be termed as quasi- judicial acts.”
Examples of Quasi-Judicial Bodies—National and State Human Rights Commissions, Lok
Adalats, Central and State Information Commissions, Central Vigilance Commission, Consumer
Disputes Redressal Commission, Central Administrative Tribunals, Competition Commission of
India, Appellate Tribunal for Electricity, Railway Claims Tribunal, Income Tax Appellate
Tribunal, Intellectual Property Appellate Tribunal.

TRIBUNALS
It is a creation of a statute and required to act openly, fairly and impartially. It is bound to act
judicially and follow the principles of natural justice. An Administrative Tribunal is vested in the
judicial power of the State and thereby performs quasi-judicial functions as distinguished from
pure administrative functions. An administrative Tribunal is not bound by the strict rules of
procedure and evidence prescribed by the civil procedure court.
Differences between Article 323A and 323B
• While Article 323 A contemplates establishment of tribunals for public service matters only,
Article 323 B contemplates establishment of tribunals for certain other matters such as
taxation, foreign exchange, industrial and labour, land reforms etc.
• While tribunals under Article 323 A can be established only by Parliament, tribunals under
Article 323 B can be established both by Parliament and state legislatures with respect to
matters falling within their legislative competence.
• Under Article 323 A, only one tribunal for the Centre and one for each state or two or more
states may be established. There is no question of hierarchy of tribunals, whereas under
Article 323 B a hierarchy of tribunals may be created.

Central Administrative Tribunal (CAT)

• At present, it has 17 regular benches, 15 of which operate at the principal seats of high courts
and the remaining two at Jaipur and Lucknow. T
• he CAT exercises original jurisdiction in relation to recruitment and all service matters of
public servants covered by it. Its jurisdiction extends to the All-India services, the Central
civil services, civil posts under the Centre and civilian employees of defence services.
However, members of the defence forces, officers and servants of the Supreme Court and the
secretarial staff of the Parliament are not covered by it.
• CAT is a multi-member body consisting of a chairman and members. A Chairman who has
been a sitting or retired Judge of a High Court heads the Central Administrative Tribunal.
They are drawn from both judicial and administrative streams and are appointed by the
President.
• The CAT is not bound by the procedure laid down in the Civil Procedure Code of 1908. It is
guided by the principles of natural justice.
 State Administrative Tribunals (SAT)
The Administrative Tribunals Act of 1985 empowers the Central government to establish the
State Administrative Tribunals (SATs) on specific request of the concerned state governments.
SATs exercise original jurisdiction in relation to recruitment and all service matters of state
government employees. The chairman and members of the SATs are appointed by the President
after consultation with the Governor of the state concerned. The chairman and members of a
Joint Administrative Tribunal are appointed by the President after consultation with the
Governors of the concerned states.

Judicial Review of Tribunals decisions

The Supreme Court in L. Chandra Kumar case, held that the jurisdiction conferred upon the
High Courts under articles 226/227 and upon the Supreme Court under article 32 of the
Constitution is part of the inviolable basic structure of our Constitution.

Categories of Tribunals in India

• Administrative bodies exercising quasi-judicial functions, whether as part and parcel of
the Department or otherwise.
• Administrative adjudicatory bodies, which are outside the control of the Department
involved in the dispute and hence decide disputes like a judge free from judicial bias. Eg: The
Income Tax Appellate Tribunal is under the Ministry of Law and not under Ministry of
Finance.
• Tribunals constituted under Article 323A and 323B having constitutional origin and
enjoying the powers and status of a High Court.

Issues faced by Tribunals:

• Lack of independence
• Jurisdiction of High Courts
• Administrative concerns like non-uniformity in appointment process, qualification of
members, age of retirement, resources and infrastructure
• Pendency and vacancy

National Tribunal Commission (NTC)

74th report of the Parliamentary standing committee, in view of Law Commission,
recommended the creation of a National Tribunal Commission (NTC) to regulate issues linked
with tribunals such as—oversee selection process, set eligibility criteria for appointment,
introduction of common eligibility criteria for removal of Chairman and Members & meeting
the requirement of infrastructural and financial resources.
 New Rules for Tribunals (2020)
• These apply to 19 Tribunals including Central Administrative Tribunals; Income Tax
Appellate Tribunal; Customs, Excise, Service, Tax Appellate Tribunal etc. Foreigners
Tribunals are not covered.
• Appointments to the above Tribunals will be made by Central Government on the
recommendations by the "Search cum Selection Committee" [CJI + PoI/Chairman of that
tribunal + Two government secretaries from the concerned ministry]
• This committee has the power to recommend the removal of a member, and also to conduct
inquiry into allegations of misconduct by a member.
• Only persons having judicial or legal experience are eligible for appointment.
• Rules also provide a fixed term of four years to the Tribunal members.

Foreigners Tribunal
• The quasi-judicial bodies in India meant to determine whether a person is or is not a
foreigner under Foreigner’s Act, 1946. They were first set up in 1964, uniquely to Assam.
• Each FT is headed by a member who can be a retired judicial officer, bureaucrat or lawyer
with minimum seven years of legal practice.
• The Tribunal shall have the powers of a civil court while trying a suit under the Code of
Civil Procedure, 1908.
• If declared a foreigner or placed under the doubtful category ‘the burden of proof lies with
the accused’. A person falling under such a category will have the right to appeal at the
Foreigners Tribunal.
• The Tribunal can summon and ask for the attendance of any person and examine him/her
on oath.
• The Tribunal can ask anyone to produce the required documents. The Tribunal can
commission examining any witness, as and when required.
• The time limit for filing the appeals before the Foreigners Tribunal has been extended from
60 days to 120 days. [Foreigners (Tribunal) Order, 2019]
• Recently amended Foreigners (Tribunal) Order, 2019 has empowered district magistrates in
all States & Union Territories to set up tribunals to decide whether a person staying illegally
in India is a foreigner or not.

National Green Tribunal (NGT)

It was established under the ‘National Green Tribunal Act, 2010’ for effective and expeditious
disposal of cases relating to environmental protection. India became the third country in the
world to set up a specialised environmental tribunal, only after Australia and New Zealand, and
the first developing country to do so.
Tribunal comprises of the Chairperson, the Judicial Members and Expert Members for the term
of 5 years, with no scope of reappointment. Chairperson is appointed by the Central Government
in consultation with Chief Justice of India (CJI). There are to be least 10 and maximum 20 full
time Judicial members as well as Expert Members in the tribunal. Only an existing or retired
judge of a High Court or Supreme Court can be a judicial member.

The NGT adjudicates matters relating to following legislations—

• Water (Prevention and Control of Pollution) Act, 1974,
• Water (Prevention and Control of Pollution) Cess Act, 1977,
• Forest (Conservation) Act, 1980,
• Air (Prevention and Control of Pollution) Act, 1981,
• Environment (Protection) Act, 1986,
• The Public Liability Insurance Act, 1991 and
• Biological Diversity Act, 2002

Functions of NGT
• NGT is mandated to make disposal of applications or appeals finally within 6 months of filing
of the same.
• As per the NGT Act, NGT does not have the power to take suo motu cognisance.
• As per Section 22 of the NGT Act, appeals from NGT lie directly to the Supreme Court.
• Tribunal is not bound by the procedure laid down under the Code of Civil Procedure 1908,
but shall be guided by principles of 'natural justice'.
• NGT by an order, can provide—relief and compensation to the victims of pollution and other
environmental damage (including accident occurring while handling any hazardous
substance), for restitution of property damaged, and for restitution of the environment.

LOK ADALATS
• The introduction of Lok Adalats added a new chapter to the justice dispensation system of this
country and succeeded in providing a supplementary forum to the victims for satisfactory
settlement of their disputes.
• This system is based on Gandhian principles. It is one of the components of ADR
(Alternative Dispute Resolution) systems. It involves people who are directly or indirectly
affected by dispute resolution.
• The advent of Legal Services Authorities Act, 1987 gave a statutory status to Lok
Adalats, pursuant to the constitutional mandate in Article 39A (free legal aid to the poor and
weaker sections of the society and justice for all) of the Constitution of India.
• The evolution of movement called Lok Adalats was a part of the strategy to relieve heavy
burden on the Courts with pending cases and to give relief to the litigants, who were in a
queue to get justice.
• A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement
between the parties to a dispute in respect of—any case pending before; or any matter which
is falling within the jurisdiction of, and is not brought before, any court for which the Lok
Adalat is organised.
• The Lok Adalat shall have the powers of a civil court under the Code of Civil Procedure,
1908, while trying a suit, in respect of the following matters—Power to summon and enforce
the attendance of any witness and to examine him/her on oath; Power to enforce the discovery
and production of any document; Power to receive evidence on affidavits; Power for
requisitioning of any public record or document or copy thereof or from any court.
• Every Lok Adalat shall have the power to specify its own procedure for the determination of
any dispute coming before it.
• In 2002, the Parliament brought about certain amendments to the Legal Services Authorities
Act, 1987 to institutionalise the Lok Adalats by making them a permanent body to settle the
disputes related to public utility services such as transport, postal, telegraph etc. Permanent
Lok Adalats have jurisdiction over pre-litigation matters only, while Lok Adalat have
jurisdiction over pending and pre-litigation matters.

Advantages of Lok Adalats

• Speedy Justice and Saving From The Lengthy Court Procedures
• Economical justice (There is no court fee in Lok Adalat)
• Unburdening of Courts by reducing the backlog of cases
• Maintenance of Cordial Relations

Issues with Lok Adalats

• Lack of confidentiality
• Aura of Court proceedings
• Needs consent of both parties
• Repeated sittings at short intervals with the same judge are almost not possible which breaks
the continuity of the deliberations.

Measures to improve functioning of Lok Adalats

• Establishing permanent and continuous Lok Adalats in all the Districts for the disposal of
pending matters as well as disputes at pre-litigative stage.
• Appointment of “Legal Aid Counsel” in all Courts of Magistrates in the country.
• Legal literacy and legal aid programmes need to expand to take care of poor and ignorant
by organizing awareness camps at grass-root level.
“The Lok Adalat Movement can be successful only if the people participate on voluntary basis in
the functioning of Lok Adalat. Further, the endeavour should be to organise more and more Lok
Adalats, ensure greater participation, reduce formalism, spare more time and personalised
attention thereby ensuring quality justice through Lok Adalats.”

NATIONAL HUMAN RIGHTS COMMISSION (NHRC)

National Human Rights Commission (NHRC) came into existence in India through an
Ordinance promulgated on 28th September 1993 by the President of India. Later, the ordinance
was replaced by a statute “Protection of Human Rights Act, 1993”.
According to which, Human Rights are “rights relating to life, liberty, equality and dignity of
individual guaranteed by Constitution or embodied in International Covenant and which are
enforceable by Courts in India”.
Comparison of 2019 Amended Act with the 1993 Act
Provisions Original Act of 1993 Amended Act of 2019
Composition of NHRC Under the Act, the chairperson of the The Act amends this to provide that a
NHRC is a person who has been a Chief person who has been Chief Justice of the
Justice of the Supreme Court. The Act Supreme Court, or a Judge of the
provides for two persons having Supreme Court will be the chairperson
knowledge of human rights to be of the NHRC. The Act amends this to
appointed as members of the NHRC. allow three members to be appointed, of
Under the Act, chairpersons of various which at least one will be a woman. The
commissions such as the National Act provides for including the
Commission for Scheduled Castes, chairpersons of the National
National Commission for Scheduled Commission for Backward Classes, the
Tribes, and National Commission for National Commission for the
Women are members of the NHRC. Protection of Child Rights, and the
Chief Commissioner for Persons with
Disabilities as members of the NHRC.
Chairperson of SHRC Under the Act, the chairperson of a SHRC The Act amends this to provide that a
is a person who has been a Chief Justice person who has been Chief Justice or
of a High Court. Judge of a High Court will be
chairperson of a SHRC.
Term of office The Act states that the chairperson and The Act reduces the term of office to
members of the NHRC and SHRC will three years or till the age of seventy
hold office for five years or till the age of years, whichever is earlier. The Act
seventy years, whichever is earlier. removes the five-year limit for
Further, the Act allows for the reappointment.
reappointment of members of the NHRC
and SHRCs for a period of five years.
Union Territories The Act provides that the central
government may confer on a SHRC
human rights functions being discharged
by Union Territories. Functions relating to
human rights in the case of Delhi will be
dealt with by the NHRC.
• Composition of NHRC—Chairman [CJI/Judge of the Supreme Court] and Four members
(excluding the ex-officio members) Three Members, out of which at least one shall be a
woman to be appointed from amongst persons having knowledge of, or practical experience
in, matters relating to human rights. Chairpersons of National Commissions viz., NCSC,
NCST, NCW, NCM, NCBC, NCPCR & the Chief Commissioner for Persons with Disabilities
serve as ex officio members.
• Appointment—Chairperson and members of the NHRC are appointed by the President of
India, on the recommendation of a Committee consisting of—The Prime Minister
(Chairperson) + The Home Minister + The Leader of Opposition in the Lok Sabha + The
Leader of Opposition in the Rajya Sabha + The Speaker of the Lok Sabha + The Deputy
Chairman of the Rajya Sabha.
• Removal—The President may remove the Chairperson or any other Member if he is adjudges
as insolvent; or Engages during his term of office in any paid employment outside the duties
of his office; or is of unsound mind and stands so declared by a competent court or convicted
and sentenced to imprisonment for an offence, in the opinion of President. If the Supreme
Court, after the inquiry, upholds the cause of removal and advises so, then the President can
remove the Chairman or a member.

CENTRAL VIGILANCE COMMISSION (CVC)

• It was established by an executive resolution upon the recommendation of Santhanam
Committee on Prevention of Corruption (1962-64). In 2003, the Parliament enacted a law
conferring statutory status on the CVC.
• The CVC is conceived to be the apex vigilance institution, free of control from any executive
authority, monitoring all vigilance activity under the Central Government and advising
various authorities in Central Government organizations in planning, executing, reviewing
and reforming their vigilance work.
• The CVC is composed of a Chairperson (Central Vigilance Commissioner) and not more
than two members. The President appoints them upon the recommendation of a committee
comprising of—The Prime Minister as its head + Union Minister of Home Affairs + Leader
of Opposition or Leader of largest opposition party in LS.
• They hold office for a term of four years or until they attain the age of 65 years, whichever
is earlier. They are not eligible for further employment under the Central or a State
Government upon expiry of their term.
• The President can remove any member of CVC from office—If he is adjudged insolvent;
convicted of an offence which (in the opinion of the Central Government) involves a moral
turpitude; Engages during his term of office in any paid employment outside the duties of his
office.
• However, in the case of misbehaviour or incapacity, the President has to refer the matter to the
Supreme Court for an enquiry. If, after the enquiry, the Supreme Court upholds the cause of
removal and advises so, the President can remove him.

Functions of CVC
With respect to CBI—To exercise superintendence over the functioning of the Delhi Special
Police Establishment (DSPE) (i.e. CBI) with respect to investigation under the Prevention of
Corruption Act, 1988; or offence under CrPC for certain categories of public servants and to
give directions to the DSPE for purpose of discharging this responsibility; To give directions and
to review the progress of investigations conducted by the DSPE into offences alleged to have
been committed under the Prevention of Corruption Act;
With respect to Vigilance—To undertake an inquiry or cause an inquiry or investigation to be
made into any transaction in which a public servant working in any organization, to which the
executive control of the Government of India extends, is suspected or alleged to have acted for
an improper purpose or in a corrupt manner. To exercise a general check and supervision over
vigilance and anti-corruption work in Ministries of the GoI. The Central Government is required
to consult the CVC in making rules and regulations governing the vigilance and disciplinary
matters relating to the members of Central Services and All India Services.

CENTRAL BUREAU OF INVESTIGATION (CBI)

• The CBI owes its origin to the Special Police Establishment, established by Government of
India in 1941, to enquire into cases of corruption in the procurement during the World War II.
Later, based on the recommendations of the Santhanam Committee on Prevention of
Corruption (1962-64), CBI was established by a resolution of the Ministry of Home Affairs.
Now, CBI comes under the administrative control of Ministry of Personnel, Public
Grievances and Pensions.
• The CBI is headed by a Director. He is assisted by a Special Director or an Additional
Director. Additionally, it has a number of joint directors, deputy inspector generals,
superintendents of police and all other usual ranks of police personnel.
• The Director of CBI as Inspector-General of Police, Delhi Special Police Establishment, is
responsible for the administration of the organization. The Director of CBI has been provided
security of two-year tenure in office by the CVC Act, 2003 (Vineet Narain Case).
• CBI has the following divisions—Anti-Corruption Division, Economic Offences Division,
Special Crimes Division, Policy and International Police Cooperation Division,
Administration Division, Directorate of Prosecution & Central Forensic Science Laboratory.
• Investigating cases of corruption, bribery and misconduct of Central government employees.
• Coordinating the activities of the anti-corruption agencies and the various state police forces.
Taking up, on the request of a state government, any case of public importance for
investigation. It takes up investigation of conventional crimes like murder, kidnapping, rape
etc., on reference from the state governments or when directed by the Supreme Court/High
Courts.

Measures adopted for ensuring autonomy of CBI

• CBI director is be appointed by a collegium comprising of the Prime Minister, Chief Justice
of India and Leader of the Opposition (or Leader of largest opposition party). The CBI
director cannot be appointed or removed without the consent of this collegium.
• The CBI director can be removed on the grounds of misbehaviour only by an order from the
President after an inquiry.
• There will be an accountability commission headed by three retired Supreme Court or High
Court judges. The committee will look into cases of grievances against the CBI.
• The affidavit said that CVC will have the power of superintendence and administration over
the CBI for all cases to be probed under the Prevention of Corruption Act but such power
would vest in the Centre for rest of the cases.

CENTRAL INFORMATION COMMISSION (CIC)

• The CIC was established by the Central Government in 2005 in accordance with the
provisions of Right to Information Act (2005).
• The Commission consists of a Chief Information Commissioner and not more than ten
Information Commissioners. They are appointed by the President upon the recommendation
of a committee comprising—The Prime Minister as Chairperson + The Leader of Opposition
in the Lok Sabha + A Union Cabinet Minister nominated by the Prime Minister.
• RTI Amendment Act, 2019 states that the Central government will notify the term of office
for the CIC and the ICs (at both Central and state level). They are not eligible for
reappointment.
• Removal—President may remove the Chairperson or any other Member if he is adjudges as
insolvent; or Engages during his term of office in any paid employment outside the duties of
his office; or is of unsound mind and stands so declared by a competent court or convicted
and sentenced to imprisonment for an offence, in the opinion of President. If the Supreme
Court, after the inquiry, upholds the cause of removal and advises so, then the President can
remove the Chairman or a member.
• However, in the case of misbehaviour or incapacity, the President has to refer the matter to the
Supreme Court for an enquiry. If, after the enquiry, the Supreme Court upholds the cause of
removal and advises so, the President can remove him.
Powers & Functions of ICs
• The Central Information Commission/State Information Commission has a duty to receive
complaints from any person—Who has not been able to submit an information request
because a PIO has not been appointed, or Who has been refused information that was
requested, or Who thinks information given is incomplete or false.
• Power to order inquiry if there are reasonable grounds (suo moto power)
• The Commission has the powers of Civil Court in following matter—
summoning and enforcing attendance of persons and compelling them to give oral or
written evidence on oath and to produce documents or things
requiring the discovery and inspection of documents;
receiving evidence on affidavit;
requisitioning any public record from any court or office;
• All records covered by RTI law (including those covered by exemptions) must be given to
CIC/SIC during inquiry for examination.
• The CIC submits annual report to the Central Government, which tables it in both the Houses
of Parliament. The SIC will submit the annual report to State Government, which places it
before the State Legislature (both Houses wherever applicable).
• When a public authority does not confirm to provisions of RTI Act, the Commission may
recommend (to the authority) steps, which ought to be taken for promoting such conformity.

LOKPAL
• The Lokpal and Lokayukta Act, 2013 establishes Lokpal for the Union and Lokayukta for
States to inquire into allegations of corruption against certain public functionaries. However,
the appointment of the Lokpal was delayed because of absence of leader of opposition, who
is a member of selection panel to recommend Lokpal. The PM-led selection panel, in 2019,
cleared the former Supreme Court Judge Pinaki Chandra Ghose as first Lokpal of India.
• Lokpal will consist of a chairperson and a maximum of eight members, of which 50%
shall be judicial members and 50% shall be from SC/ST/OBCs, minorities and women.
• Appointment—A search committee which recommends a panel of names to the high-power
selection committee. The selection committee comprises the Prime Minister, the Speaker of
the Lok Sabha, the Leader of the Opposition, the Chief Justice of India (or his nominee) and
an eminent jurist (nominated by President based on the recommendation of other members of
the panel). President will appoint the recommended names.
• The Chairperson or any Member shall be removed from his office by order of the President
on grounds of misbehaviour after the Supreme Court report. For that a petition has to be
signed by at least one hundred Members of Parliament.
Jurisdiction:
• Anyone who is or has been PM, or a Minister in the Union government, or a Member of
Parliament, as well as officials of the Union government under Groups A, B, C and D.
• The chairpersons, members, officers and directors of any board, corporation, society, trust or
autonomous body either established by an Act of Parliament or wholly or partly funded
by the Centre.
• Any society or trust or body that receives foreign contribution above ₹10 lakh.

Exceptions for Prime Minister

• It does not allow a Lokpal inquiry if the allegation against the PM relates to international
relations, external and internal security, public order, atomic energy and space.
• Complaints against the PM are not to be probed unless the full Lokpal bench considers the
initiation of inquiry and at least 2/3rds of the members approve it.
• Such an inquiry against the PM (if conducted) is to be held in camera and if the Lokpal
comes to the conclusion that the complaint deserves to be dismissed, the records of the
inquiry are not to be published or made available to anyone.

Functioning of Lokpal
• Power with respect to CBI: Power of superintendence and direction over any investigation
agency including CBI for cases referred to them by Lokpal. Transfer of officers of CBI
investigating cases referred by Lokpal would need approval of Lokpal.
• Inquiry wing and prosecution wing: Inquiry Wing for conducting preliminary inquiry and
Prosecution Wing for the purpose of prosecution of public servants in relation to any
complaint by the Lokpal under this Act.
• Timelines for enquiry, investigation: Act specifies a time limit of 60 days for completion
of inquiry and 6 months for completion of investigation by the CBI. This period of 6
months can be extended by the Lokpal on a written request from CBI.
• Confiscation of property: The act also incorporates provisions for attachment and
confiscation of property acquired by corrupt means, even while prosecution is pending.
• Special Court shall be setup to hear and decide the cases referred by the Lokpal.

Issues with Lokpal:

• Requirement of Government Approval
• Timeframe limitation
• No Suo Moto power with Lokpal
• Constitution of Lokayukta for each state is not done as prescribed by the Act.
• Power and Jurisdiction of the Lokayuktas in States determined by SLAs
 PRESS COUNCIL OF INDIA (PCI)
• It is a statutory, quasi- judicial body which acts as a watchdog to oversee the conduct of the
print media (press). It adjudicates the complaints against and by the press for violation of
ethics and for violation of the freedom of the press respectively. It functions under the Press
Council Act, 1978.
• PCI consists of a chairman and 28 other members, who serve for a term of three years.
• The Chairman, by convention a retired judge of the Supreme Court of India, is selected by the
Speaker of the Lok Sabha, the Chairman of the Rajya Sabha and a member elected by the
PCI.
• The members consist of members of the three Lok Sabha members, two members of the
Rajya Sabha, six editors of newspapers, seven working journalists other than editors of
newspapers, six persons in the business of managing newspapers, one person who is engaged
in the business of managing news agencies, and three persons with special knowledge of
public life.
• The functions of the PCI include among others—Helping newspapers maintain their
independence; Build a code of conduct for journalists and news agencies; Help maintain
“high standards of public taste” and foster responsibility among citizens; Review
developments likely to restrict flow of news.

NATIONAL COMMISSION FOR MINORITY EDUCATIONAL

INSTITUTIONS (NCMEI)
• A quasi-judicial body, regulates the certification of minority educational institutions all over
India.
• Its Chairman should be who has been a Judge of the High Court and three members are to be
nominated by Central Government.
• It has the powers of a Civil Court. It has both original and appellate jurisdiction in such
matters.
• It has adjudicatory functions and recommendatory powers.
• It has power to enquire, suo motu, into complaints regarding deprivation or violation of rights
of minorities to establish and administer educational institutions of their choice.
• It specifies measures to promote and preserve the minority status and character of institutions
of their choice established by minorities.
• NCMEI Act defines MEI as a college or an educational institution established and
administered by a minority or minorities. As per notification of the Government of India,
there are 6 notified religious minority communities - Muslim, Sikh, Christian, Buddhist,
Parsis and Jain. No linguistic minority has been notified by the Central Government till date.
 GS MAINS PAPER-II
Polity
REGULATORY AUTHORITIES IN INDIA
The Constitution empowers the Union and State Legislatures in India to make laws on various
subjects and take up regulatory functions. The Constitution as well as the laws enacted by
Parliament have established the institutions and mechanisms to enforce these laws and rules.
Article 53(1) of the Constitution regulates the exercise of the executive powers of the Union.
Further, Article 53(3) authorises the Parliament to confer by law such functions to ‘authorities’.

Need for Regulation

Prevention of Market Failure
Market failure is a condition in which the market mechanism fails to allocate resources
efficiently to maximise social welfare. Market failures occur in case of natural monopolies (In
the transportation sector, Railways is a natural monopoly in India) or asymmetric information
(a situation where one party in a transaction knows more about the product than another), and in
the presence of externalities.
To check anti-competitive practices
Anti-competitive practices have implications for the economic growth and development of
nations.
To promote the public interest
Ensuring fair access, non-discrimination, affirmative action, or any other matter of public
importance can provide an important reason for regulation. Some of the major regulations are
Support Pricing, PDS.

REGULATION IN INDIA
• Post-independence, India experimented with a “socialist mixed economy model” with the
state retaining dominant control over the economy. While private sector activity was allowed,
the government controlled it through licensing and quotas in regard to intermediate goods,
imports and outputs.
• After 1985, the Indian economy embarked on a process of domestic reform, which included–
delicensing of industries and abolition of output quotas, permission for private entry into
sectors.
• From 1991 onwards, liberalisation of the external sector meant that tariff reductions were
extended to almost the entire spectrum of merchandise trade and conditions for foreign
investment were simplified and liberalised.
TYPES OF REGULATION IN INDIA
• Economic Regulation—It aims at preventing market failure. This is achieved with rules
that proscribe and punish market distorting behaviour.
• Regulation in the Public Interest—This covers areas where industries are failing to meet a
standard or uphold something of public importance. Such regulations are necessary due to
low level of consumer awareness.
• Environmental Regulation—In India, environment protection has been given constitutional
status. Laws like Environment (Protection) Act, 1986 as the umbrella legislation has been
enacted.

CATEGORIES OF REGULATORS IN INDIA

Independent regularity authorities (IRAs) are agencies of modern democratic governments,
parts of the executive wing with a certain degree of statutory or constitutional autonomy,
reporting directly to the legislature. There are primarily two types of regulatory agencies—
Statutory Independent Regulatory Agencies:
The concept of this originated in USA, with the basic premise of the establishment of these
agencies being that a market based economy needs to be regulated in order to ensure a level
playing field to all and also to safeguard the larger public and national interest.
Self Regulatory Authorities:
It has the power to create and enforce stand-alone industry and professional regulations and
standards on its own. Eg: Stock Exchanges (BSE/NSE in India), Press Council of India(PCI) are
Self Regulatory Authorities. Their functions include—Issues of professional education, Matters
connected with licensing & Ethical conduct of the practitioners.

ISSUES RELATED TO REGULATION IN INDIA

• Administrative Incoherence—Unlike other countries ( USA have Administrative Procedure
Act, 1946), India does not have an overarching administrative law statute in India. Regulators
in India face the issue of overlapping jurisdictions and unclear guidelines.
• Structural Weakness—Regulators in India are often required to make technical
determinations. But a large number of posts dedicated to expert members lie vacant.
• Design of the regulatory bodies—When the government is both owner and regulator, a
conflict of interest is inevitable and a level playing field unlikely. There are concerns
regarding the vertical division of power & misalignment between the state and central
governments.
• Outdated Legal Framework—Technological advancements have warranted a proportional
overhaul of the laws and regulations. Eg: The telecom sector is still governed by outdated
‘Indian Telegraph Act, 1885’.
• Not aligned to global standards—For instance, civil aviation expanded but norms and
regulations set by the industry regulators do not meet the global safety standards.

IMPORTANT REGULATORY BODIES

Reserve Bank of India (RBI)
Objective = supervise and undertake initiatives for the financial sector consisting of commercial
banks, financial institutions and NBFCs.
RBI comes under the purview of acts like—Reserve Bank of India Act (1934); Public Debt Act
(1944); Banking Regulation Act (1949); Foreign Exchange Management Act (1999); SARFAESI
Act (2002); Payment and Settlement Systems Act, 2007.
Major Functions of RBI—Monetary Authority, Regulatory and Supervisory, Foreign Exchange
Management, Currency Issuer, Developmental role, Chief Banker to all banks, Dividends to
government,Handling of weak public sector banks, PCA framework, Easing loans to small and
medium enterprises or SMEs.
Monetary Policy Committee (MPC)
It was formed under RBI which is tasked with framing monetary policy using tools like the RR,
Rev RR, Bank Rate, CRR. The primary objective of monetary policy is to maintain price
stability while keeping in mind the objective of growth. The amended RBI Act also provides for
the inflation target to be set by the Government of India, in consultation with the RBI, once in
every five years. There are six members in the MPC. Out of them three are from RBI including
Governor ( ex- officio Chairperson), the Deputy Governor and one officer from RBI. The other
three Members of MPC will be appointed by the Central Government, on the recommendations
of a Search-cum-Selection Committee.

Securities and Exchange Board of India (SEBI)

A statutory regulatory body established by the Government of India through the SEBI Act, 1992
to regulate the securities market in India and protect the interests of investors in securities. SEBI
was established to keep a check on unfair and malpractices and protect the investors from such
malpractices. The organization was created to meet the requirements of the three groups—
Issuers, Investors & Intermediaries.
SEBI carries out the following tasks to meet its objectives: Protective functions (price
manipulation, bans Insider trading, prohibits unfair and fraudulent trade practices, promotes fair
code of conduct in the security market), Regulatory functions (regulate brokers, issuers,
investors, governs a company’s takeover, regulates and registers the mutual funds as well,
conducts audits and inquiries of stock exchanges), and developmental functions (training of the
intermediaries, promoting activities of the stock exchange).
Major achievements of SEBI
• Dematerialisation of shares
• Faster Settlement Process
• Stronger Regulations
• Fostering Mutual Funds Industry
• Internet Trading
• Circuit – Breaker System

Insurance Regulatory and Development Authority (IRDA)

An autonomous apex statutory body, which regulates and develops the insurance industry in
India. Its powers are laid down in IRDAI Act, 1999 and Insurance Act, 1938. Its objective
includes—promotion of competition so as to enhance customer satisfaction through increased
consumer choice and fair premiums, while ensuring the financial security of the Insurance
market.
Entities regulated by IRDAI—Life Insurance Companies, General Insurance Companies, Re-
Insurance Companies, Agency Channel & Intermediaries like Corporate Agents, Brokers, Third
Party Administrators, Surveyors and Loss Assessors.
Functions of IRDA:
• Registering and regulating insurance companies
• Protecting policyholders’ interests
• Licensing and establishing norms for insurance intermediaries
• Promoting professional organisations in insurance
• Regulating and overseeing premium rates and terms of non-life insurance covers
• Specifying financial reporting norms of insurance companies
• Regulating investment of policyholders’ funds by insurance companies
• Ensuring the maintenance of solvency margin by insurance companies
• Ensuring insurance coverage in rural areas and of vulnerable sections of society

Competition Commission of India (CCI)

A body of the Government of India, responsible for enforcing the Competition Act, 2002
throughout India and to prevent activities that have an adverse effect on competition in India.
This Act prohibits—anti-competitive agreements & abuse of dominant position by enterprises.
It is the duty of the Commission—eliminate practices having adverse effect on competition,
promote and sustain competition, protect the interests of consumers & ensure freedom of trade
in the markets of India.
 Telecom Regulatory Authority of India (TRAI)
An independent regulator of the telecommunications business in India.
Functions of TRAI:
• Recommend the need and timing for introduction of new service provider;
• Recommend the terms and conditions of license to a service provider;
• Ensure technical compatibility & effective inter-connection between different service
providers;
• Ensure compliance of terms and conditions of licence;
• Facilitate competition and promote efficiency in the operation of telecom services;
• Protect the interest of the consumers of telecommunication service;
• Inspect the equipment used in the network and recommend the type of equipment to be used
by the service providers;
• Settle disputes between service providers.
Net Neutrality in India
The principle of it is that internet users should be able to access all content on the internet
without being discriminated by Telecom Service Providers (TSPs). This means that—all
websites or applications should be treated equally by TSPs, all applications should be allowed to
be accessed at the same internet speed & all applications should be accessible for the same cost.

National Pharmaceuticals Pricing Authority (NPPA)

It was established in 1997, an attached office Department of Pharmaceuticals. Its functions
involve—implement and enforce the provisions of the Drugs Price Control Order (DPCO);
monitor the availability of drugs, identify shortages & take remedial steps for it; to collect/
maintain data on production, exports and imports, market share of individual companies,
profitability of companies etc. for bulk drugs and formulations.

Insolvency and Bankruptcy Board of India (IBBI)

The regulator for overseeing insolvency proceedings and entities like Insolvency Professional
Agencies (IPA), Insolvency Professionals (IP) and Information Utilities (IU) in India. It has been
given statutory powers through the Insolvency and Bankruptcy Code. It attempts to simplify the
process of insolvency and bankruptcy proceedings.

Atomic Energy Regulatory Board (AERB)

It was constituted in 1983 by the President of India by exercising the powers conferred by
Section 27 of the Atomic Energy Act, 1962 to carry out certain regulatory & safety functions
under the Act.
 Central Electricity Regulatory Board (CERB)
It is a statutory body functioning with quasi-judicial status under Sect. 76 of the Electricity Act
2003. Its functions include—regulate the tariff of generating companies owned or controlled by
the Central Govt; regulate the inter-State transmission of electricity; determine tariff for inter-
State transmission of electricity; issue licences to persons to function as transmission licensee
and electricity trader with respect to their inter-State operations; formulation of National
Electricity Policy and Tariff Policy; promotion of investment in electricity industry etc.

Food Safety and Standard Authority of India (FSSAI)

An autonomous body established under the Ministry of Health & Family Welfare, Government
of India. The FSSAI has been established under the Food Safety and Standards Act, 2006. Its
functions include—
• Framing of regulations to lay down the Standards and guidelines in relation to articles of
food.
• Laying down mechanisms and guidelines for accreditation of certification bodies engaged in
certification of food safety management system for food businesses.
• Provide scientific advice and technical support to Central Government and State Governments
in the matters of framing the policy and rules in of food safety and nutrition.
• Contribute to the development of international technical standards for food, sanitary and
phytosanitary standards.
• Collect and collate data regarding food consumption, incidence and prevalence of biological
risk, contaminants in food etc.

PARTICIPATION OF STAKEHOLDERS IN THE REGULATORY PROCESS

For the orderly growth of a sector, a regular consultation among the industry, the government,
the regulators and other stakeholders such as consumers is essential. In India, regulatory
reforms, which have accompanied economic reforms, have been marked by lack of consumer
participation. Consumers, being largely unorganised, have been largely bypassed by the
reform process, which has been influenced by a strong business lobby. The participation of
stakeholders, particularly consumers, can be made very effective through well designed and
implemented public meetings along with distribution of accessible literature. In addition to lack
of proper consultation, there is lack of coordination between regulators and government
departments, responsible for formulating and implementing investment related policies. Clear
information may empower stakeholders and can inform the decision-making process.
COMPETITION AUTHORITY VS. SECTOR REGULATORS
To strengthen the forces of competition in the market, both competition law and policy (to be
enforced by Competition Commission) and market regulatory laws (to be enforced by the
regulator) are required. Both are complementary to each other. A regulator examines issues of
technology, cost and process in the industry regulated by it. Competition Authority, on the
contrary, tells the firms what they should not do i.e. price fixing, predatory pricing, cartels,
discriminatory treatment etc. “The role of the Competition Authority is that of an adjudicator,
which acts against anti-competitive practices”.

FISCAL SECTOR LEGISLATIVE REFORMS COMMISSION (FSLRC)

It was constituted by the Ministry of Finance in March 2011, was asked to comprehensively
review and redraw the legislations governing India’s financial system. With respect to regulators,
FSLRC stresses the need for both independence and accountability. The draft Indian Financial
Code adopts ownership neutrality, whereby the regulatory and supervisory treatment of a
financial firm is the same, whether it is a private or public company.

Present Proposed Functions

RBI RBI Monetary policy; regulation and supervision

of banks; regulation and supervision of
payments system.
SEBI Unified Financial Agency Regulation and supervision of all non- bank
FMC (UFA) and payments related markets.
IRDA
PFRDA
Securities Appellate Tribunal (SAT) Financial Sector Appellate Hear appeals against RBI, the UFA and
Tribunal (FSAT) FRA.
Deposit Insurance and Credit Resolution Corporation Resolution work across the entire financial
Guarantee Corporation (DICGC) system.
Financial Stability Development FSDC Statutory agency for systemic risk and
Council (FSDC) development.
Debt Management Agency An independent debt management agency.
New Entities Financial Redressal Agency Consumer Complaints
(FRA)
Why Independence of Regulatory Bodies is favoured? (FSLRC)
• The regulator is able to set up a specialized workforce that has superior technical knowledge.
• This is assisted by modified human resource and other processes, when compared with the
functioning of mainstream government departments.
• With such knowledge, and close observation of the industry, an independent regulator is able
to move rapidly in modifying regulations, thus giving malleability to laws.
• The presence of independent regulators improves legal certainty.

Recommendations of 2nd ARC [12th report i.e “Citizen Centric Administration”]

• Regulation only where necessary;
• Regulations need to be effective & Slack enforcement leads to corrupt and unethical practices
and the objectives of the legislations are also not met.
• Self-regulation is the best form of regulation & principle of voluntary compliance can be
extended;
• Regulatory procedures to be simple, transparent and citizen friendly which include
simplifying transactions, using IT, promoting transparency, reducing discretion, effective
supervision etc.
• The burden of the enforcement machinery can be shared by associating citizens’ groups as
well as professional organizations to certify compliance and report violations of the
regulations to the concerned authorities.

SINGLE SUPER-REGULATOR VS. MULTIPLE REGULATORS

Arguments in favour of Unified Supervision
• Fragmented supervision may raise concerns about the ability of the financial sector
supervisors to form an overall risk assessment of the institution.
• Different regulators could set different regulations for the same activity for different players.
Unified supervision could thus help achieve competitive neutrality.
• Unified approach allows for the development of regulatory arrangements that are more
flexible.
• Unified supervision could generate economies of scale as a larger organization permits finer
specialisation of labor and a more intensive utilisation of inputs and unification may permit
cost savings on the basis of shared infrastructure, administration, and support systems.
• Unified Regulation improves the accountability of regulation. Under a system of multiple
regulatory agencies, it may be more difficult to hold regulators to account for their
performance against their statutory objectives, for the costs of regulation, for their
disciplinary policies, and for regulatory failures.
Arguments against Unified Regulation
• It is possible that a single regulator might not have a clear focus on the objectives and
rationale of regulation and might not be able to adequately differentiate between different
types of institutions.
• A single unified regulator may also suffer from some diseconomies of scale.
• It is argued that synergy gains from unification will not be very large, i.e. economies of scope
are likely to be much less significant than economies of scale.
• The public could tend to assume that all creditors of institutions supervised by a given
supervisor will receive equal protection, generating ‘moral hazard’. The other institutes
supervised by the same regulatory authority would be looked upon as same in good & bad
aspects.
 GS MAINS PAPER-II
Polity
PRESSURE GROUPS

Pressure Group = An organized group of people that aims to influence public opinion or
policies/actions of government. They are part of civil society. These groups use various
methods to achieve their aims including lobbying, research campaigns, media campaigns, policy
briefs and polls. Pressure groups can therefore act as a channel of communication between the
people and government.
Key features of The Pressure Groups
• They don’t make the policies, rather they influence the govt in making them.
• They have a narrow domain and focus on a specific issue.
• The members are united by a shared beliefs or interests.
• Use of modern as well as traditional means financing of political parties, sponsoring their
close candidates at the time of elections and maintaining relations with the bureaucracy.

TYPES OF PRESSURE GROUPS (on the basis of their structure and organization)
INTEREST AND CAUSE GROUPS
• Interest Groups represent a particular section of society i.e workers, employers, consumers, an
ethnic or religious group, and so on.
• They are concerned to protect or advance the interests of their members. Membership is
limited to people in a particular occupation, career or economic position. Members are
motivated by material self-interest.
• For example, Trade unions, business corporations, trade associations and professional bodies.
They are also called ‘sectional’ groups because they represent a particular section of the
population.
• Interest Groups can be classified into 4 categories—Institutional Interest Groups
(professionally employed persons group like legislatures, armies, bureaucracies, churches,);
Associational Interest Groups (specialised groups formed for interest articulation, but to
pursue limited goals like Indian Chambers of Commerce, AITUC, NSUI); Anomic Interest
Groups (they have analogy with individual self- representation. They are found in the shape
of movement demonstrations and processions. They may be constitutional or
unconstitutional) & Non-Associational Interest Groups (kinship and lineage groups and
ethnic, regional, status and class groups that articulate interests on the basis of individuals,
family and religious heads. They have informal structure)
• Cause groups (Issue groups) are groups that are based on shared attitudes or values, rather
than the common interests of its members.
• They seek to advance particular ideals or principles. Membership is open to all. Members are
motivated by moral or altruistic concerns (the betterment of others). For example, Mazdoor
Kisan Shakti Sangathan (MKSS), PETA, India against Corruption etc.

INSIDERS & OUTSIDERS

Insider groups are groups that are consulted on a regular basis by government. They operate
‘inside’ the decision-making process. They may also sit on government policy committees. Eg:
National Advisory Council, CII etc.
Outsider groups are the ones that are not so closely involved with the decision makers and who
find it harder to get their voices heard in the higher echelons of policy making. They try to exert
influence indirectly via the mass media or through public opinion campaigns. Eg: ADR

Roles/Functions of Pressure Groups

• Representation—They form the voice of groups and interests that are not adequately
represented through the electoral process or by political parties.pressure groups provide an
alternative to the formal representative process through what has been called functional
representation. However, Pressure groups have a low level of internal democracy i.e express
the views of their leaders and not their members.
• Political Participation—They seek to exert influence precisely by mobilising popular
support through activities such as petitions, demonstrations and other forms of political
protest.
• Education—Groups devote significant resources to carry out research, maintaining websites,
commenting on government policy and using high- profile academics, scientists and even
celebrities to get their views across.
• Policy Formulation—are a vital source of information and advice to the governments. Eg:
ORF
• Policy Implementation—They try to shape the content of public policy to playing a role in
putting the policy into practice.

How Pressure Groups Exert Influence?

• Ministers & Civil Servants
• Parliament (parliamentary lobbying to supplement contacts with ministers and civil servants)
• Political Parties (through funding and donations)
• Public Opinion (Eg: ADR)
• Direct Action (Strikes, blockades, boycotts and sit-ins, which could be violent or non violent)

Techniques used by Pressure Groups

• Electioneering: Placing in public office persons who are favourably disposed towards the
interests the concerned pressure group seeks to promote.
• Lobbying: Persuading public officers, whether they are initially favourably disposed towards
them or not, to adopt and enforce the policies that they think will prove most beneficial to
their interests.
• Propagandising: Influencing public opinion and thereby gaining an indirect influence over
government, since the government in a democracy is substantially affected by public opinion.

PRESSURE GROUPS & LOBBYING

Lobbying is a communication process used for persuasion, it cannot be treated as an
organization. Lobbying is different from pressure groups in a sense that pressure groups are
organized groups and lobbying is just one of the functions performed by them. Countries like
USA, Canada, Australia, Germany and Taiwan treat lobbying as a legitimate right of citizens.
Regulations serve as a tool to enhance transparency in the policymaking process rather than
restricting access to policymakers. In India, where there is no law regulating the process,
lobbying had traditionally been a tool for industry bodies and other pressure groups to engage
with the government ahead of the National Budget.
Why Lobbying is equated with corruption in India?
Lobbyists provide governments with valuable policy-related information and expertise but if the
activity is not transparent, public interest may be put at risk in favour of specific interests. It can
be equated with corruption in India because a large chunk of the population believes that almost
every dealing with the government requires bribes to be paid to officials.
While lobbying is not a new phenomenon in India, it is largely unregulated. It is not lobbying
that is the problem, but the lack of transparency, lack of comprehensive regulations and lack of
mechanisms to monitor the activities of the powerful that is at the root of the problem. India
needs to determine a regulatory model that suits its socio-political needs.
Views in favour of Lobbying
• It is inherent in any democracy to convince a policy maker of a particular position.
• It is argued that making lobbying and advocacy legal would lead to a clean way of
approaching the policymakers and lawmakers if they have any legitimate and genuine
interests.
Views against Lobbying
• Corporates or people with mighty socioeconomic power, by themselves or through their
industry bodies, corrupt the laws to serve a self-serving agenda by bending or deflecting them
away from general fairness to majority of the population.
• It is against the right to equality guaranteed to citizens of the country, as businessmen with
extensive money power can indulge in lobbying and get things done.

Rise of pressure-group power

• Growth of cause groups—Reasons being like Increased leisure time, Higher educational
standards, Changes in gender roles, Membership of political parties has declined.
• Widening of access points through devolution—Devolution allowed PGs to exert influence
through the local/grassroots level; RTI Act has enabled them to ask tougher question to those
in power.
• Globalisation—business groups have become more powerful in a global age & emergence of
NGOs.

Decline of PGs
• End of corporatism (relationship between the government and economic interest groups
(trade unions and employers' organisations) in decision making on economic matters)
• Decline in meaningful and active participation.
 PRESSURE GROUPS AND DEMOCRACY
PGs promote Democracy in following ways:
• Supplement electoral democracy—Pressure groups keep government in touch with public
opinion in-between elections; give a political voice to minority groups and articulate concerns
that are overlooked by political parties;
• Widen political participation—The level of political participation is an important indicator
of the health of democracy. This changed the view with which the youth looked upon the
conventional politics.
• Ensure competition and debate—PGs compete against one another, which ensures that no
group or interest can remain dominant permanently.
• Promote education—promote political debates, discussions and arguments, which creates a
better-informed and more educated electorate.

How pressure groups threaten democracy?

• Increase political inequality—They tend to empower the already powerful. Most powerful
PGs tend to be the ones that possess money, expertise, institutional leverage and privileged
links to govt.
• Exert ‘behind the scenes’ influence—PGs influence is exerted in a way that is not subject to
scrutiny and public accountability.
• Exercise non-legitimate power—Pressure groups are therefore not publicly accountable,
meaning that the influence they exert is not democratically legitimate.
• Lead to the tyranny of the minority—Minority views or ‘special’ interests may prevail at
the expense of the interests of the majority or the larger public.

PRESSURE GROUPS IN INDIA

Business Groups
• They are independent of the political parties. Some of the important Business Groups are CII,
FICCI. The businesspersons are usually present in different legislatures at the Central as well
as State level.
Trade Unions
• They have been present since even before the Independence such as the AITUC-1920 and
INTUC-1947. Trade Unions in India are closely affiliated with the political parties. They have
a weapon of strike for wage increase, bonus, change in wage structure etc.
Peasant Organisations
• It rose due to the factors like abolition of Zamindari System and other land reform measures,
implementation of PR & Green Revolution movement. Like the trade unions, there is no
peasant organisation, which may be independent of party control, though at the state level,
their organisations are non-political, independent of the political parties and homogenous.
 They mainly organised on territorial basis rather than on all-India basis. The interplay of
language, caste factor, weak financial positions, etc. have been greatly responsible for lack
of emergence of multiple national level peasants’ pressure groups.
Student Organisations
• Some pre-independence student organisations were the All Bengal Students Association
formed in 1928 and All India Students Federation (AISF) in 1936. Some post-independence
student organisations are NSUI, ABVP.
Community Associations
• They are organised on the basis of caste, class and religion. Scheduled Caste Federation,
Backward Caste Federation are some examples of caste organisations.
Civil Society Organizations
• They are established by citizens of the country, to pursue certain interests. People come
together informally or formally to share their feelings about different issues and prevailing
social injustice. Eg: Mazdoor Kisan Shakti Sangathan (MKSS), People’s Union for Civil
Liberties (PUCL), National Alliance of People’s Movements (NAPM), National Alliance of
Women’s Organizations (NAWO).

Capacity of a pressure group is determined by following factors:

• Leadership
• Mass Media
• Organisational Abilities
• Economic Power Base
• Mobilisation Techniques

Limitations of Pressure Groups

• Focus of the pressure groups—They largely influence the administrative process rather than
the formulation of policy. A gap is created between policy formulation and implementation.
• Issues raised by pressure groups—Most of the time the issues are dominated by caste and
religion than those related to socio-economic interests.
• Lack of resources—That is why they are short lived sometimes.
• Serving political interests—In India, there is a tendency to politicise every issue.
• Low level of internal democracy—Often it is seen that they express the views of their
leaders and not their members.
Comparison of Indian and Western Pressure Groups
• Significance of pressure groups: The American pressure groups are regarded as the fourth
organ of the government but the Indian pressure groups are not yet able to play such
significant role in politics.
• Targets of pressure groups: In India and Great Britain the cabinet and civil service are the
main targets of pressure groups for lobbying purposes rather than the Parliament. However,
the targets of American pressure groups are the Congress and its committees rather than the
President for lobbying purposes.
• Themes or issues raised: Indian pressure groups based on caste, religion, region, etc. are
more powerful than the modern groups such as business organisations.
• Foreign policy: A significant feature of American pressure groups is that their pressure
groups take interest in foreign policy issues while in India pressure groups do not seem to
have interest in foreign policy matters. Comparatively, the Indian pressure groups are
concerned more with domestic policy issues and problems.

Conclusion:
Pressure groups are now considered as an helpful and indispensable element of the democratic
process. The society has become highly complex and individuals cannot pursue their interests on
their own. They need the support of other fellow beings in order to gain greater bargaining
power. This gives rise to pressure groups based on common interests.
 VISION-IAS PRACTICE QUESTIONS (POLITY)
FUNDAMENTAL RIGHTS
1. ‘It is not necessary that everyone receives equal treatment, but everyone must be treated as equal’.
Explain Article 14 of the Indian Constitution in light of the above statement.
2. The government cannot condition receipt of public benefits on waiver of fundamental rights.
Discuss this statement in context of the recent issues raised in the Aadhaar petitions.
3. Reservation policy is a logical and useful strategy for ensuring justice and providing equal
opportunity to the socially oppressed groups. Discuss.
4. Discuss the issue of reservation in promotions for SCs and STs in public employment in the light
of various judicial pronouncements and constitutional amendments.
5. Freedom of expression is a right, however, it does not grant the right to defame any person.
Discuss the statement in the light of various Supreme Court judgments.
6. Criticism about the judiciary should be welcomed, so long as criticisms do not hamper the
“administration of justice”. In this context discuss whether the power of contempt of court given
to the higher judiciary limits the freedom granted by Article 19(1)(a) and whether these two can be
reconciled.
7. The Supreme Court in its judgment on 26/11 slammed the media for its lust for TRPs, which
jeopardised the security of the nation. Can the actions of media be justified in the context of right
to freedom and speech? Discuss the principles and concerns that the media should keep in mind
while covering such incidents.
8. The principle of accountability is an essential part of the rule of law. In this context, discuss the
lacunae in government's approach and judiciary's response to the phenomenon of extrajudicial
killings in India.
9. Highlight the importance of Right to Education. Also, discuss the issues linked with the 'No
detention' policy.
10. The right to live with dignity under Article 21 includes the right to die with dignity. Discuss in
light of various judicial pronouncements by the Apex Court on this matter. Also, critically
examine the various issues associated with the Medical Treatment of Terminally Ill Patients Bill
2016.
11. Despite the phrase 'due process of law' not being included in Article 21, the Supreme Court, over
the years, has adopted the doctrines of 'procedural due process' and 'substantive due process' into
Indian constitutional law. Comment.
12. Article 22 of the Indian Constitution is a necessary evil. Discuss.
13. Is the freedom to profess, practice and propagate religion, provided under article 25 of the Indian
constitution a historical mistake committed by constituent assembly, discuss in view of the recent
controversy on religious conversions?
14. Right to freedom of religion cannot be allowed to deny right to equality and individual dignity.
Discuss in the light of constitutional provisions and recent judicial pronouncements.
15. Special rights are not privileges but they are granted to make it possible for minorities to preserve
their identity, culture and traditions. Elaborate in the context of India with examples.
16. Where there is a right, there is a remedy. In this context, discuss the nature and significance of
writs in India with adequate examples.
DIRECTIVE PRINCIPLES OF STATE POLICY
1. How can Directive Principles be seen as both complementary and supplementary to Fundamental
Rights?
2. “The Directive Principles of State Policy are socialistic in their direction and content.” Examine.
3. “The sanction behind Directive Principles of State Policy is in fact political”. Explain. How has
the issue of priority in case of conflict between the provisions of Part III and IV of the
Constitution evolved over the years?
4. Discus how Directive Principle of State Policy have shaped the policy making process in India.
Do you think it has been successful in achieving its objective. Analyse.
5. Directive Principles can be considered as even more important than the Fundamental Rights
because they provide a positive thrust towards welfare. Examine.
6. DPSPs, though not legally enforceable in a court of law, are perceived as ‘conscience of the
Constitution’ and are fundamental to governance of the country. Comment.

FUNDAMENTAL DUTIES
1. Critically appraise the utility of fundamental duties in the Constitution of India.
2. While Fundamental Rights are crucial to the survival of a vibrant democracy, Fundamental Duties
are equally important. While enumerating the Fundamental Duties, discuss the statement.
3. Fundamental Duties, though significant, have certain limitations. Examine.
4. The value of fundamental duties lies in establishing a democratic balance by making the people
conscious of their duties equally as they are conscious of their rights. Analyse.

INDIAN CONSTITUTION: HISTORICAL UNDERPINNINGS, EVOLUTION,

FEATURES, AMENDMENTS, SIGNIFICANT PROVISIONS AND BASIC
STRUCTURE
1. A Constitution should not be amended too frequently, rather only when it becomes inevitable to do
so. How far have amendments in the Indian Constitution followed this requirement?
2. Though the Constitution-makers vested the power to amend the Constitution in the Parliament,
since the Kesavananda Bharati case, the Supreme Court has become a decisive co-sharer in this
power. Comment.
3. Indian constitution is a borrowed constitution. Evaluate.
4. Amendment process of the Indian constitution with that of Japan? Compare.

COMPARISON OF THE INDIAN CONSTITUTIONAL SCHEME WITH THAT

OF OTHER COUNTRIES
1. The Indian constitution wonderfully adopts the via media between the American system of Judicial
Supremacy and the British principle of parliamentary supremacy. Explain.
2. The Upper Chamber of Parliaments across the world are generally considered less powerful vis-à-
vis their Lower Chamber. However, they are also vested with certain functions and powers, which
enables them to play a decisive role. Critically analyse with special emphasis on India.
3. Whereas the legislature is empowered to regulate the ratification of international treaties in the
United States, in India it is mostly the domain of the executive. Examine the rationale and benefits
of these two approaches with examples.
4. Ninth amendment to the American Constitution states that the enumeration of certain rights in the
Bill of Rights shall not be construed to deny or disparage others retained by the people. Is this
statement true with respect to the Constitution of India also? If yes, what is the difference between
fundamental rights included in part 3 of our Constitution and the rights mentioned outside part 3?
5. In comparison with the American constitutional arrangement, where there is strict separation of
executive and legislature, the Indian Constitution provides for a fused structure. Do you think this
system has worked for India?

FEDERAL STRUCTURE & DEVOLUTION OF POWER

1. “Modern Indian federalism owes its origin to the dual legacies of colonial administration and
structure of Indian society.” Elaborate.
2. What are the provisions of Inter State Council as mentioned in the Constitution. Have such
Councils been helpful in maintaining the solidarity among the States?
3. Economic and financial reforms have huge bearing on Centre – state relations. Discuss the
statement in the light of economic and financial reformative measures initiated in last two decades.
4. Assess the effectiveness of the institutional architecture of Indian federalism in settling inter-state
disputes.
5. Inter-state river water disputes have been among the most pressing issues faced by the Indian
federal system. In this context, examine the potential of the Inter-State River Water Disputes
(Amendment) Bill, 2019 in addressing the issues involved.
6. Asymmetry as an important characteristic of the Indian federalism has helped cater to the specific
needs and requirements of some sub-units. Explain.
7. The debates on issues such as replacement of the Planning Commission or the introduction of GST
often bring to the fore the issue of 'Fiscal Federalism'. What does the term denote? Discuss with
the relevant constitutional provisions in mind.
8. “The extra-ordinary feature of the Indian federalism is that many states get a differential treatment
through appropriate constitutional provisions in light of the peculiar social and historical
circumstances.” Analyse.
9. In what way is the Indian constitution federal? Do you consider increasing assertiveness shown by
some states as antithetical to national interest or a healthy development for Indian democracy?
10. The “centralised planning with pronounced socialist bias” has been responsible for the increasing
dominance of centre over state. Discuss.
11. In a paradigmatic shift from the command and control approach of the past, NITI Aayog
accommodates diverse points of view in a collaborative, rather than confrontationist setting.
Comment.
12. Enumerate the objectives of NITI Aayog. Also, discuss the performance of this body since its
inception and suggest measures to make it more effective.
13. Mention the structure and functions of NITI Aayog. Also, comment on its contemporary relevance.
14. For inclusive and sustainable growth, India needs both cooperative as well as competitive
federalism. Discuss.
15. It is contended that GST regime will significantly curb the financial autonomy of states by taking
away substantial taxation powers. In this regard, examine the impact of the GST regime on federal
structure of our polity. What are the proposed mechanisms in the bill which seek to address this
issue?
16. Can we say that cooperative federalism in India has strengthened in the post- liberalisation era?
Give reasons in support of your answer.
17. Even though Indian federalism has matured quite a bit, with states having far greater control of
their economic and political management, serious structural problems still remain. Discuss.

EMERGENCY PROVISIONS
1. Compare and contrast the National Emergency and President's Rule in terms of their declaration
and effects on fundamental rights as well as centre-state relations.
2. Explain the grounds on which a National Emergency can be declared and highlight its effects on
Centre-state relations and Fundamental Rights.
3. What was hoped to be a 'dead-letter' of the Constitution has become one of the most controversial
provisions. Discuss in the context of Article 356.
4. Highlight the extent of President's powers under Article 352. Comment on the judicial scrutiny of
proclamation and the exercise of executive powers under National Emergency. How is this power
different from the one bestowed under Article 356?

DISPUTE REDRESSAL MECHANISMS AND INSTITUTIONS

1. Highlight the issues facing arbitration as an effective alternative dispute resolution mechanism in
India. How does Arbitration and Conciliation (Amendment) Act, 2019 strengthen the arbitration
set up in India?
2. Settlement of cases by mutual compromise is much better than seeking adjudication in the
adversary system. With reference to this statement discuss various ADR mechanisms available in
India.
3. Examine the need of ADR mechanisms in India and comment on their efficacy in dispute
redressal.
4. What do you understand by alternate dispute redressal mechanism? Discuss the various tools of
ADR. In light of the problems faced by the Indian judiciary enumerate the advantages of Lok
Adalats.
5. What are the various modes of Alternate Dispute Redressal (ADR) mechanisms available in India?
Identifying the problems being faced by them, provide suggestions needed to increase their
effectiveness.

LOCAL GOVERNANCE (PRI & ULB)

1. What are the different aspects of capacity building that need to be taken into account to address the
capacity deficit within Panchayats and Municipal bodies?
2. Though Parliament had enacted The Provisions of the Panchayats (Extension to the Scheduled
Areas) Act, 1996, but it has been implemented very poorly across the states. Bring out the various
reasons behind its poor implementation and the measures needed for its success.
3. Tracing the evolution of panchayati raj since independence highlight its achievements in
facilitating the inclusion of vulnerable sections of society in the political process.
4. Panchayati raj institutions (PRIs) are simultaneously a remarkable success and a staggering failure,
depending on the goalposts against which they are evaluated. Discuss.
5. Absence of a powerful and politically accountable leadership in the cities is considered as one of
the primary reasons for urban woes. Do you think that direct election of mayor can help in
overcoming this issue? What other alternatives can be explored for improving the working of
urban local bodies?

MINISTRIES AND DEPARTMENTS OF THE GOVERNMENT

1. The Cabinet Secretariat has to play a creative, functional, informative and coordinative role in the
Cabinet’s functioning. Elaborate.
2. “A periodic cleaning-up of the statute books helps prevent conflicts and ambiguities creeping into
the legal system.” Discuss the statement in light of the initiative taken by the government to repeal
old laws.
3. Proliferation of Ministries and Departments in the government not only leads to weak coordination
and integration but also fragmentation of functions. Comment in the context of India.

PRESSURE GROUPS
1. Discuss the role of Pressure Groups in Indian polity. Are they strengthening or hindering our
democracy?
2. Compare pressure groups in India with those in the west.
3. The capacity of a pressure group to promote its interests is contingent upon a number of internal
and external factors. Discuss.
4. Pressure groups ensure that an individual's democratic rights are not confined just to the act of
voting. Discuss.
5. Compare and contrast pressure groups with political parties. Describe the different techniques
through which pressure groups influence policies in India.
6. Illustrate how pressure groups have emerged as a strong mechanism for making democracy
participatory and responsive.
7. Delineate the differences between pressure groups and interest groups. Citing examples, elaborate
on the ways in which pressure groups influence government decisions and policy making in India.

QUASI JUDICIAL BODIES

1. What is the legal sanction behind the establishment of Foreigners' Tribunals? Comment on the
need of strict judicial supervision given the context in which they function.
2. What are the different rights available to the consumers under the Consumer Protection Act, 1986?
Explaining the three layered quasi-judicial mechanism put in place under the Act, mention the
measures that can be taken to improve the functioning of these forums.
3. Tribunals in India have not just replicated some of the problems that our judiciary suffers from but
added a few more. Discuss.
4. Effective protection of consumer rights is sine qua non for promoting the culture of good
governance. In this context, critically examine the state of consumer rights protection in India and
discuss the need for reforms in this regard.
5. During the recent ruling on extra-judicial killings in Manipur, the Supreme court used the
expression ‘toothless-tiger’ to refer to the NHRC. Has the NHRC failed in its mandate to counter
systematic human rights violations? Critically analyse its working and suggest some measures to
improve its effectiveness.

REGULATORY AUTHORITIES IN INDIA

1. “To ensure that banks give adequate attention to Financial Inclusion, they must view it as a viable
business proposition rather than a regulatory obligation”. In this context, discuss the challenges
faced in Financial Inclusion in India with special reference to Nachiket Mor Committee
recommendations.
2. The Press Council of India is a statutory, quasi-judicial body which acts as a watchdog of the
press. But it has not been able to fulfil its mandate. Discuss.
3. “India lacks an independent nuclear regulatory mechanism with the mandate to ensure high
standards of safety and security at civilian nuclear facilities.” In the light of the above statement
examine the prevalent nuclear regulatory mechanism in India. How far can an independent body
like Nuclear Safety Regulatory Authority address this issue?
4. A generational shift in railway operations is required. In light of this, discuss the need for an
independent tariff and safety regulatory authority of India.
5. Review of performance should be a key factor in revising compensation. In this context, critically
discuss the practice of appointing pay commissions every ten years to suggest salary revisions for
government staff.

REPRESENTATION OF THE PEOPLE ACT 1950 & 1951

1. Election surveys, particularly opinion polls, have recently come under a cloud of controversy
because of their ability to influence the voters. Do pre-election opinion polls tangibly influence
decisions of voters? Is there a need to impose reasonable restrictions on opinion polls conducted
by media.
2. Elections in India have become an “on-going” process, which has impeded efficiency and
governance. In this context, critically evaluate the idea of simultaneously holding elections to the
Parliament and State Assemblies in India.
3. Repeated violations of the Model Code of Conduct (MCC) have raised questions on its
effectiveness. In this light, discuss the idea of making MCC a part of Representation of Peoples
Act, 1951.
4. It has been argued that the 'First past the post' system fails to represent the will of the majority and
encourages vote-bank politics. In this context, examine whether India should adopt Proportional
Representation System to reform our electoral process.
5. Critically discuss the major reforms introduced in the area of electoral funding in Union Budget
2017. Do you think that state funding of elections is a viable idea to check misuse of money power
in politics?
6. Criminalisation of politics remains a key concern for the Indian political system. In this context,
analyse the role played by the Supreme Court and Election Commission over the years. Also, in
what ways can the media play a positive role?
7. It is of paramount importance to ensure that the Election Commission of India (ECI) be fully
insulated from political pressure to maintain the purity of elections. In this context, discuss the
need to have a relook at the process of appointment and removal of election commissioners to the
ECI.
8. What are the challenges posed by paid news and political advertising in conducting free and fair
elections? Discuss, in brief, the need to amend the Representation of People's Act to regulate this
issue. What other steps can be taken to address it?
9. Despite legislative changes with respect to funding of political parties in recent years, many
challenges still exist with regards to transparency in electoral funding. Discuss. Can state funding
of elections help in addressing these challenges?

SEPARATION OF POWERS
1. Explain the meaning and significance of Doctrine of Separation of Powers. Also compare the
constitutional status of Separation of Powers in India and USA.
2. The Constitution of India embraces the idea of separation of powers in an implied manner.
Elucidate.
3. The government shutdown in USA showed the dangers of strict separation of powers in
Presidential form of democracies. Explain how separation of powers between the legislature and
executive is maintained in USA. How does India avoid such shutdown?
4. What are the major changes that have taken place in global governance structures, which have led
to a dilution in the principle of separation of powers?
5. Judicial Activism has hurt the separation of power principle in India and is not healthy for Indian
polity. With the help of few judgments given by the Supreme Court of India, critically analyse this
statement.
6. The recent judgment of the Supreme Court on the National Tax Tribunal Act aims to restore the
balance in separation of powers. However, the judgment would go against the idea of Tribunals
under the constitution. Examine.
7. In comparison with the American constitutional arrangement, where there is strict separation of
executive and legislature, the Indian Constitution provides for a fused structure. Do you think this
system has worked for India?
8. Independence of judiciary and separation of powers, both are part of the basic structure of the
constitution. In this context, discuss the recent Supreme Court judgment on the constitutional
validity of the National Judicial Appointments Commission.
9. Separation of powers in case of India has acquired its own uniqueness under the constitutional
arrangement. Explain.
10. The Constitution of India mentions the Doctrine of Separation of Powers only in passing, yet it
holds a unique status in the structural framework of the Indian polity. Discuss.
11. Explain why the doctrine of separation of powers is considered as an indispensable part of a
democratic setup. Also, discussing this doctrine in the context of India, explain the principle of
‘checks and balances’.
12. Explain the significance of the concept of 'separation of powers' in a democracy. What can be the
reasons for India not following the doctrine in the strict sense?
13. There is no strict separation of powers under the Indian Constitution, with the executive,
legislature and judiciary empowered to carry out functions which may be considered within the
purview of the other. Discuss.

SUPREME COURT
1. While judiciary has been seen as a harbinger of promoting transparency and accountability in
governmental functions, it needs to promote the same regarding its own functioning. Comment
w.r.t. the need for judicial reforms in India.
2. What is the importance of an independent judiciary in a democracy? Highlight the safeguards in
our political-constitutional setup to ensure the independence of judiciary.
3. A dysfunctional judicial delivery system is a serious impediment to establishing the rule of law in
our nation. Examine the statement in the context of the problem of case pendency and judicial
vacancies in India.
4. Despite long term recognition of the problem of pendency of cases in the courts, limited progress
has been made in reducing their number. What are the possible reasons for such a scenario?
Suggest a framework of measures that can be taken to address this issue.
5. While the power to punish for the contempt of court is a much needed tool to protect the
administration of justice from being maligned, it is time that it be re-looked into. Critically
analyse.
6. “The process of justice delivery in India has become a punishment in itself”. In reference to the
above, examine the causes for a large number of under trials in the country. Do you think Supreme
Court’s recent directive on Section 436A of CrPC would be able to address the issue?
7. Article 145(3) of the Indian Constitution says that any “substantial question of law” relating to the
interpretation of the Constitution must be heard by benches of at least five judges. But some of the
most important constitutional cases, like Salwa Judum and Naz foundation, were decided by
smaller benches. Why is there a need for larger benches? What are the possible reasons for smaller
benches hearing such important cases?
8. While Public Interest Litigations have provided access to justice for the poor and the marginalized
sections of the society but many vested interests have also misused it. In this context, examine the
utility of PILs as a tool of social justice.
9. While it has been argued that the judiciary should be brought under RTI, a balance also needs to be
maintained between independence of the judiciary and the right of people to know. In this context,
discuss the pros and cons of bringing the judiciary under the ambit of RTI.
10. Criticism about the judiciary should be welcomed, so long as criticisms do not hamper the
“administration of justice”. In this context discuss whether the power of contempt of court given to
 the higher judiciary limits the freedom granted by Article 19(1)(a) and whether these two can be
reconciled.

THE PREAMBLE
1. In light of the controversy over Preamble, discuss the views that have emerged on its status and
amendability. In this context, discuss the purpose that the Preamble to the Constitution serves in
our polity.
2. Stating the preamble to the Indian constitution comment on its nature and scope.
3. The philosophical underpinnings of the Indian constitution can be best understood through its
preamble inspired by the Objectives Resolution in the constituent assembly. Elaborate.

UNION & ITS TERRITORY

1. While some argue that Article 3 provides usurping powers to the centre at the cost of states,
according to others it enables the Parliament to maintain and preserve federalism as enshrined in
the constitution. Discuss. Is it time to have a relook at Article 3 in the spirit of co-operative
federalism?
2. The State Reorganisation Commission had to operate within certain 'limiting factors' while
reorganising the country on linguistic grounds. Discuss these limiting factors.
3. The State Reorganisation Commission turned language from a dividing force to a cementing and
integrating one. Critically evaluate.
4. The demands for state formation in India have changed their bases from linguistic to
backwardness, ethnicity etc. Examine this transformation of the bases for state reorganisation.
5. Ethnic similarities are as important as territorial boundaries in promoting the feeling of common
brotherhood among the citizens of a country. In context of the above statement, examine the
problems faced by people from North-East in other parts of India. Also analyse the steps taken by
the government in this regard.

UNION EXECUTIVE
1. While in theory, the Cabinet is dependent upon Parliament, in practice it is the master of
Parliament. Comment.
2. Distinguish between ordinance making powers of President and Governor. Should the power to
promulgate ordinance, which is a legacy of colonial rule, have any place in the constitution of a
modern democratic India?
3. “Prime Minister represents the executive government in a way that no single member of the
Council of Ministers (CoM) or even the entire CoM can.” Discuss.
4. Empowered Group of Ministers lead to early and effective decision-making on particular issues.
Critically analyse.
5. “The ordinance-making power of the executive needs to be suitably restrained, to create a balance
of power between the executive and the legislature and to check the misuse of the same”. Do you
agree? Justify your stand with examples.
6. It is the Parliamentary system, with its basis on constant accountability, accommodation and
inclusion, which can best serve the needs of the country. Examine, keeping in mind the arguments
that are periodically put forward for adopting the Presidential system in India.

STATE EXECUTIVE
1. What role has the constitution envisaged for the Governor with respect to administration of
Scheduled and Tribal Areas? Critically evaluate the success of provisions of Fifth and Sixth
schedules in achieving their objectives.
2. Several constitutional experts have found the process of appointment and removal of governor to
be against the very grain of democratic traditions and constitutional propriety. Do you think that
this process warrants a fresh look in context of recent controversies surrounding the post?
3. Concerns regarding the wide formulation and indiscreet application of discretionary powers of the
Governor need closer attention. Discuss.
4. Highlight the ordinance-making powers of the Governor. Also enumerate the range of steps open
to him when a Bill is presented after its passage by the state legislature.
5. There is a point of view that the office of Governor has outlived its relevance and needs to be
abolished. Critically examine in the current context.

UNION LEGISLATURE
1. The practice of passing of bills without the scrutiny by the parliamentary standing committees
undermines their significance and sets a wrong precedent. Discuss.
2. How is structure and electoral process of Rajya Sabha different from Lok Sabha? Do you think
Rajya Sabha has been able to perform its envisaged role in recent times?
3. The crucial position accorded to the Speaker in Indian legislatures, makes it imperative to protect
them from undue political pressures and incentives. Examine.
4. What are the grounds for disqualification of members of legislatures under the Tenth Schedule of
Indian Constitution? Analyse the merits and demerits of having such provisions in a parliamentary
democracy like India.
5. Vast powers have been vested in the office of the Speaker to strengthen the democratic institutions
of the parliamentary system, and not to stifle dissent or protest in the House. Comment in the
context of India.
6. Elaborate the process of legislation in the Indian Parliament for an ordinary bill. How is a money
bill different from an ordinary bill?
7. Privileges should be defined and delimited for the free and independent functioning of the
legislatures. In this context, discuss whether there is a need to re-examine the balance between
fundamental rights and parliamentary privileges in India.
8. The Departmentally-Related Standing Committees have been referred to as mini- parliaments in
India. Highlight their relevance in a democratic polity and discuss, with examples, how they
improve the overall effectiveness of the Parliament.
9. The Rajya Sabha is merely a secondary house rather than a second house in the Indian
Parliamentary system. Critically analyse the statement. Also, compare and contrast the position of
the Rajya Sabha vis-à-vis the State legislative councils.
10. It has been argued that over the years there has been a steady decline in the efficacy of Parliament
as an institution of accountability. Analyse and also suggest appropriate measures to address the
relevant concerns.
11. Parliamentary committees increase the efficiency and expertise of Parliament. In this context,
examine the role played by public accounts committee and suggest measures to further strengthen
it.
12. List the parliamentary mechanisms available for the scrutiny of regulators. Also, discuss major
steps through which parliamentary oversight of regulators can be strengthened.
13. Parliamentary scrutiny over public finance is an important aspect of governmental accountability.
In this context, discuss the role, importance and challenges in establishing a Parliamentary Budget
Office (PBO) for effective oversight of budgetary process.
14. Parliamentary privileges are not always used for the aims they were intended to serve. In this
context, discuss the need for codification of these privileges in light of recent developments.

STATE LEGISLATURE
1. “Legislative Councils in India are not only second, but also secondary chambers of state
legislatures. In terms of their composition and powers, they have become obsolete and must be
scrapped.” Examine.
2. “Unlike the Union Parliament, there is no provision for resolving any deadlock between the two
houses of the state legislature because no deadlock can possibly arise”. Elaborate. Provide a
comparative assessment of procedure regarding Ordinary Bills and Money Bills in Parliament and
state legislatures.

JUDICIARY: HIGH COURT, SUBORDINATE COURTS, ISSUES, JUDICIAL

REFORMS AND JUDICIAL ACTIVISM
1. Examine the need of ADR mechanisms in India and comment on their efficacy in dispute
redressal.
2. Elaborate the functions and structure of Nyaya Panchayats. Also discuss how it works at the grass-
root level for the dispensation of justice.
3. “If the Supreme Court and the High Courts both were to be thought of as brothers in the
administration of justice, the High Court has a larger jurisdiction but the Supreme Court still
remains the elder brother”—Justice R.C Lahoti. In the context of the above statements, describe
the relationship between the apex court and the high courts in India.
4. Give an account of the factors responsible for the limited success of Lok Adalats. What measures
are required to ensure that Lok Adalats function as an effective dispute redressal mechanism?
5. Centralising recruitment through an All-India Judicial Service (AIJS) will not address the multiple
problems in the judiciary and cause new ones instead. Critically evaluate.
 VISION-IAS PRACTICE QUESTIONS (GOVERNANCE)
IMPORTANT ASPECTS OF GOVERNANCE
1. “The citizens, who are at the receiving end, are the best judge of the quality and quantity of
services administered for their benefit. But they have hardly any means to hold the administration
accountable.” Examine.
2. Discuss what constitutes good governance in the context of India. Also mention some aspects of
social justice and discuss how good governance can act as a facilitator towards securing justice.
3. Digital India programme has the potential to not only transform the citizen service delivery, but
also provide the much needed impetus for key social and industrial sectors. Examine.
4. Why is redressal of public grievances important for a democracy? Critically evaluate the
functioning of various instruments for redressal of public grievances in India.
5. Despite increasing awareness of beneficiaries, social audits have not played a significant role in
reducing malpractices and detecting irregularities. Discuss. How can social audits be made more
effective?
6. The reasons for failure of e-Governance projects are anything but technological. Discuss in the
context of India.
7. Though digital tools can help achieve transparency, efficiency and accountability in governance,
meeting these objectives requires much more than just building a large digital infrastructure and
mere connectivity. Discuss.
8. According to the World Bank, while digital technologies have spread rapidly in much of the world,
resulting digital dividends have lagged behind. Analyse in the context of India.

ROLE OF CIVIL SERVICES IN A DEMOCRACY

1. Explain the role of civil services in a democracy like India. Why is it argued that the civil services
need reforms to keep pace with current realities?
2. Discuss the changes that have taken place in the role of the state, and in particular the bureaucracy,
in the post-liberalisation era in India.
3. Give an account of the areas of potential conflict in the relationship between the political executive
and civil servants. Also discuss why a healthy working relationship between the two is critical for
good governance.
4. An important aspect of curtailing corruption is to minimize the discretionary powers available to
government officers. Analyse. Also, suggest ways in which this can be achieved.
5. The bureaucracy in India is facing a number of serious challenges from diminishing human capital
to political interference that, if left unaddressed, will lead to further institutional decline. Discuss.
How can these challenges be addressed?
6. The recent decision of the government to open up positions at the senior levels in bureaucracy
through lateral entry is an important but only small step in the direction of much needed reforms in
the higher civil services. Analyse.
7. Give an account of the issues that arise due to short tenure of civil servants in India. Critically
discuss the move of setting up a civil services board in order to address this problem.
8. The idea of Civil Services Board has been widely hailed as a key civil services reform, however it
is not without its own limitation. Comment.
GOVERNMENT POLICIES AND INTERVENTIONS FOR DEVELOPMENT
IN VARIOUS SECTORS AND ISSUES ARISING OUT OF THEIR DESIGN
AND IMPLEMENTATION
1. MGNREGA has been termed as a stellar example for rural development. In this context, discuss
how far the design of MGNREGA program makes it more successful than other rural development
programmes.
2. Rights-based approach to social policy, which has rippled through India over the past decade and a
half, reorients governance from ideas of patronage towards duty of the state and justified claims of
citizens. Discuss with examples. Also, explain how the rights-based approach helps in improving
public service delivery.
3. “In India, there has been a decline in employment in the unorganised sector in the past few years.
However, the increase in the organised sector employment has been mainly in the informal
category.” In light of this statement, analyse the issue of ‘Informalisation of Employment’ in
Indian economy.
4. Convergence and interlinking of various government schemes can lead to better service delivery
and cost effectiveness. Illustrate.

DEVELOPMENT PROCESSES AND THE DEVELOPMENT INDUSTRY -

THE ROLE OF NGOS, SHGS, VARIOUS GROUPS AND ASSOCIATIONS,
DONORS, CHARITIES, INSTITUTIONAL AND OTHER STAKEHOLDERS
1. Self-help group (SHG) bank linkage program portrays it as an effective tool being used in various
countries to approach a range of socioeconomic issues. Explore the possible performance and
sustainability of this type of program in India?
2. Difference between SHGs and Cooperative Societies.
3. Critically analyse the change in the nature of civil society in India due to the entry of a large
number of professional and well-funded NGOs in it. Also discuss the dilemmas and the limits that
this development has created for the civil society.
4. Involvement of civil society in the policy-making process makes a democracy more participative
in nature. Examine the above statement in the context of India.
5. While difference in opinions exist between the State agencies and the Voluntary Organizations, the
State recognises the need to preserve, protect and nurture an enabling environment for the
development of the Voluntary sector. Explain in context of the National Policy on the Voluntary
sector.
6. Unhealthy competition between Self Help Groups (SHGs) and Panchayati Raj Institutions (PRIs)
reduces the effectiveness of both. Discuss. How can creating a synergy between the two help in
addressing development challenges at the sub- district level?
7. Despite their location in the non-political domain of civil society, NGOs have ended up playing a
key, if indirect, role in India's politics. Comment.
8. Keeping in mind the importance of NGOs in India's development process it is imperative that
adequate legal and regulatory mechanisms should be in place. Discuss in the context of recent
developments.
9. Self Help Groups (SHGs) are vehicles of rural development, which help in the upliftment of
marginalised groups. Elucidate. Further, mention the constraints faced by SHGs and how they can
be addressed.
10. Explain, with examples, how the self-help groups (SHGs) have been playing a significant role in
the empowerment of women in India. Also, mention the initiatives that have been undertaken by
the government for promoting SHGs.