INDIAN CONSTITUTION

Constitution is a set of principles according to which the

Government of a country is carried on. The purpose of the constitution is
to define the operation of the sovereign power of the community and
which serve as a member through which the arbitrary powers are
checked and also if they defines the rights of the individual and secure
them against all encroachment.
Constitution is of various kinds:
Written & unwritten;
Rigid & flexible;
Unitary & Federal; and
Monarchical & Republic.
Written & unwritten: Written means documented. Unwritten
means conventional. There is no constitution, which is completely
written or wholly unwritten. US constitution is written but many
conventions had grown up. First President Gorge Washington laid a
principle that no one can be elected President for more than two terms,
though constitution had no such provision. This was followed till
Ruzwelt, who was elected for the 4 th term also. Subsequently, the
constitution was amended which stipulate that no one can hold the office
of President for more than two terms. Similarly British Constitution is
unwritten, but the acts of settlement, bill of rights, Reforms act, Magna
Karta etc form part of written constitution.
Rigid & Flexible: A constitution is flexible when there is no
difference between constitutional law and ordinary law, and when the
former is amended in the same way as the ordinary law. For ex UK. A
constitution is rigid, if the amending process is difficult. For ex USA.
Unitary & Federal: Under Unitary, all authority is concentrated at
the hands of central legislature. Though, local divisions are created for
administrative convenience. The very existence of the local units is at
the sweet will of the central legislature.
When the powers of the Government are divided between central
authority and component parts namely the states, which is legally
independent within its own sphere, then we called federal.
A federation comes into existence in two ways:
When two are more independent states, for the purpose of
defence, common tradition, culture, language etc, they agree to
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form a new central authority and surrender their sovereign rights

to the newly created national Government. This is one method.
For ex USA.
In the second case, a State, which was already existing and
functioning as unitary may be divided as separate units or states
and be organised on a federal basis. For ex India.
Federal Constitution Characteristics
Federal constitution is characterised by the following:
Dual Government;
Division of powers;
Written constitution;
Supreme Judiciary;
Dual citizenship;
Rigidity of constitution;
Supremacy of Constitution;
Dual/Service; and
Common Judiciary.
There will two independent Governments; one at the each of the
states and the other at the centre. Both graining powers from a common
source namely constitution. Both are independent in their own spheres.
The legislative and the executive powers are divided between the
Union and the States and the distribution reflected in the constitution
itself. The basis of such distribution of power is that in matters of
national importance, in which a uniform policy is desirable in the interest
of the units, the authority is given to the Union and the matters of local
concern remained with the states.
A foundation of federal states is a complicated contract. It would
be impossible to maintain supremacy of the constitution unless the terms
of the constitution are reflected in writing to base an arrangement of
federation on the common sense would generate misunderstandings.
Therefore, written constitution is a pre-requisite for a federal constitution.
A federal State derives its existence from the constitution.
Therefore, every power whether executive, legislative or judicially
whither belongs to the Union or State is always subordinate to and
controlled by the constitution, which is supreme law of land.
The coronary of written constitution is rigidity. A constitution, which
is supreme law of land, must be rigid. In a rigid constitution, the
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procedure of amendment is difficult and complicated and the power to

amend the constitution remains both with Union and the states.
A federal State involves division of powers between Union and the
States given in the written constitution. This can be maintained only if
there is an independent and impartial agency for interpreting and
enforcing the constitution. This role is given to the Supreme Court, which
is supreme judiciary.
Federation pre-supposing dual citizenship for the Union and the
State separately.
Federation also pre suppose dual service, one for the State and
the other for the central.
Since the judiciary has the responsibility of the interpretation and
enforcing of the constitution upon all organs of the states, the judicial
powers are not divided and the federal constitution shall always have a
common judiciary.
Salient Features of the Indian
Constitution

Indian constitution is the lengthiest constitution of the world, next

perhaps to Yugoslavia.
Originally comprising 395 articles and 8
nd
schedules. In 2000 after 82 amendments, constitution has 443 articles
divided into 26 parts and 12 schedules. US constitution originally had
only 7 articles, Canada 147 articles. The bulkiness of the constitution is
due to inclusion of detailed administrative provision so that a smooth
working of an infant democracy is ensured. It also has fundamental
rights, directive principles, fundamental duties, structure of states, official
language, emergency provisions, UPSC, election commission and other
transitory provision. The constitution has been made bulky primarily to
meet the administrative problem and to prohibit administrative abuse of
power by any organ of the State. In the words of Ambedkar,
democracy in India is only a top dressing of Indian soil, which is
essentially undemocratic. It is therefore, wiser not to trust the
legislature to prescribe in the form of administration.
The constitution establishes a sovereign socialistic secular
democratic republic. The constitution introduces the parliamentary form
of Government, both to the centre and the states. The executive has
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been made responsible to the legislature and the President is only a

nominal head.
There is a unique combination of rigidity and flexibility. Our
constitution is rigid so far as the base structure is concerned. It is
sufficiently flexible in the sense, in 51 years; we have amended the
constitution 81 times.
The constitution has fundamental rights protected by the
constitution itself.
The constitution provides directive principles of State policy with a
view to establish the welfare State.
The constitution provides a federation with a strong centre. In
other words, Indian federation is only in structure but it has unitary in
spirit.
We have universal adult franchise. All adults of 18 years and
above can exercise franchise irrespective of Cast, Race, Religion, Sex or
Place of birth or Property or Taxation etc.
A constitution envisages an independent unified judicially.
No provincial citizenship has been given in spite of federation. In
other words, only a single citizenship is given to the citizens.
Fundamental duties
amendment act, 1976.

have

been

incorporated

through

42 nd

The constitution provides bicameral legislature i.e. two house of

parliament; Lok Sabha and Rajya Sabha.
Indian constitution is called the basket of borrowings.
The greatest influence has been exercised by Government of India
act, 1935 from which many of the provisions have been copied. In
addition, the influence of other constitution is as follows:
Parliamentary system of Government with a nominal head with
council of Ministers accountable to legislature UK.
Fundamental rights USA.
Judicial Review USA.
Federal system Canada.
Election of Rajya Sabha members and emergency South Africa.
Directive Principles of State policy Ireland.
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Fundamental Duties USSR.

In addition to the above, our constitution has some unique features:
A provision for Preventive Detention Law even during normal
circumstances.
Ordinance making powers of the President (Article 123).
Provisions for anti-defection law (Schedule 10).
Special leave petition [Primary Powers of Supreme Court
(Article 136)]
Advisory Jurisdiction of Supreme Court (Article 143)

Indian constitution is federal in structure but unitary in spirit,

examine.
Even though all the characteristic of a federal constitution are
fulfilled in the Indian constitution, there are certain provision which are
against the spirit of Federalism:
The distribution of powers is totally biased against the State. State
legislatures can make law only on 66 subjects. Even though,
they have equal powers on concurrent subject, in the case of
clash between a Union law and the State law, Union law will
always prevail over State law except where the State law has
been reserved for consideration by the President and has
been accented to.
The residuary subjects belong to the Union, unlike true federal
states.
The appointment of Governors by the Centre as a head of State in
the states is un-heard of in federal constitution.
Under constitutional emergency, President Rule can be imposed on
the states.
There is in-equal representation in Rajya Sabha. While UP has 34
members, Sikkim has only one, though both are states. In
addition, 12 members are nominated in Rajya Sabha by the
President, which is again an aberration of federalism.
While there is a separate service for Central and State, Rajya
Sabha has been empowered to create All India Services,
whose members are recruited by UPSC controlled and
monitored by Department of Personnel & Training but made to
serve in states.
The Governors can reserve any bill for consideration by the
President.
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No State in India has constitution of its own except J & K. The

name of State, territory of states boundary of State can be
changed without the concurrence of the State. Similarly, a
State can be abolished or bifurcated or amalgamated without
the concurrence of the State. In other words, we have a
indestructible unions with destructible states.
The states have no powers even to create council. They have to
come to the centre with a beggars hope/bowels.
For amending the constitution, the states can only propose and
they have no role absolutely.
Preamble
Preamble is an introductory note outlining the objectives of the
constitution. It is key to the constitution. It works before the constitution.
It reflexes what we have thought and dreamt during our freedom
struggle. It shows a purpose for which the constitution was frame.
Preamble also indicates the source from which a constitution has framed
its right to obedience.
The preamble reads We the people of India having solemnly
resolve to constitute India into a sovereign socialistic secular democratic
republic In our constituent assembly, this 26 th November, 1949 do
hereby adopt enact and view to ourselves, this constitution.
In other words, the constitution has been framed by the people and
given to them, therefore, it implies a duty on every one to follow the
principles enshrined (included) in the constitution.
Whether preamble is part of the
constitution
In Berubari case, 1960 the Supreme Court declared that preamble
is not a part of the constitution and as such it cannot be regarded as a
source of substantive power because, such powers are expressly given
in the body of the constitution. Preamble has a limited application, to be
resorted to when there is any ambiguity in the constitution.
However, in the Keswanand Bharati Case, 1973, Supreme Court is
over ruled its earlier decision and held that preamble is a part of the
constitution and constitution should be read and interpreted only with
reference to the preamble.
Now the question is whether preamble can be amended, when there
is no article
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No.
This was discussed for the 1st time in Keswanand Bharati Case, in
1973. The argument was that the preamble restricts the scope of Article
368, and therefore it is beyond amendment.
However in this case, Supreme Court held:
Preamble is a part of constitution; and
Preamble can be amended also subject to the condition that the
basic features should not be touched.
Therefore, today the position is preamble is a part of constitution,
though it has no article no. and it can be amended also without altering
the basic structure.
Whether it has been amended earlier
Yes, though 42nd amendment act, 1976, three new terms have
been added in preamble
(1) Secular, (2) socialistic and (3) integrity.
These are not new, since they have already been found in
constitution.
Secular means that the State does not recognised any religion as a
State religion. It treats all religion equally. This concept is already found
in fundamental rights Article 25, 26, 27 and 28.
Socialistic The principle of socialism have already been included
in the directive principle in Article 39(b) and Article 39(c).
Integrity It is also not new because article (1) itself says that India
i.e. Bharat is a Union of states, making it very clear that the states have
no right to cede away.
Doctrine of Judicial Review
Judicial Review has been taken from US constitution. This is
the powers of the court to pronounce upon the constitutionality of the
legislative acts, which fall within their normal jurisdiction to enforce and
the power to refuse to enforce, which they find unconstitutional and
hence quite. This doctrine was first propounded by the Supreme Court
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of USA even though, US constitution does not contain any express

provision for judicial review.
Article 13 of Indian constitution provides for judicial review of all
legislations. This power has been conferred on the high court &
Supreme Court of India, through article 226 & article 32 respectively.
Union and its territories [Important]
Article 1 declares India has the Union of states. Though, the
country is a federation with a strong centre, the federation word has not
been included in the constitution. Instead only the term Union is
mentioned. This has two advantages:
It is made clear that the Union is not the result of any agreements
among the units.
The states have no right to cede away from the Union.
In other words, Indian federation is a Union because, it is
indestructible.
A name of India is Bharat. The members of the Union are given in
first schedule. The territory of India consists of:
States;
Union territory; and
the territories that can be acquired.
India at present has 28 states and 7 unions territories.
Whether India can acquire any territory
The power to acquire new territories is an attribute of sovereign
function and for this no legislation is required. The modes of acquisition
are occupation, subjugation, acquisition on conquest etc.
The territories thus included will be a Union territory, then
converted into State.
A constitution gives the power to the parliament to admit a new
State or to establish a new State on such terms and conditions as it may
think fit.
Admission of State means admission of State, which already
exists. Establishment of a State means admission and formation of a
new State, which was not in existence.
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There is no provision in the constitution which gives a right to the

new State after admission into the Union to claim complete equality
because the admission is on such terms and conditions as it deems fit.
Article 3 states the procedure for forming or establishing a State by
four ways:
By separation of a territory from any State;
By uniting two or more states;
By uniting any parts of the states;
By uniting any territory to a part of an State.
Under this, parliament can also increase or decrease the area of
the State and also change the name of the State.
Indian constitution empowers the parliament to alter the territory or
name etc without the consent of the affected State. This can be done by
passing a law by parliament by simple majority. There are two conditions
to be fulfilled:
No bill for formation of a new State or altering the boundary or
changing the name could be introduced in the either house of
parliament except on the reconsideration of the President.
If the bill affects the area, boundary or name of any State, the
President should refer the bill to the concerned State legislatures for their
view within such specified time, which can also be extended. If the State
legislature does not express its views within the time specified, even then
the bill can be introduced and passed. In case, the State expresses the
views opposing the bill, the parliament is not bound by the views and the
bill can be passed. These amendments are not treated as amendments
for the purpose of Art 368.
Therefore, the very existence of the State, its name, its territory, its
area, its boundary, totally depend on the sweet will of the Union i.e. why
it is said that India is a indestructible Union with destructible states.
Ceassion of territory
Article 3 empowers parliament to diminish the area of any State.
The diminishment decrease may occur in two ways:
Where a part of territory of State is withdrawn and added to
another State.
Where a part of territory of State of Union territory of State or Union
territory is taken out and given to a foreign country.
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A question is whether the point at 2 is possible.

This came up before Supreme Court in a reference made by
President under Article 143.
India & Pakistan entered into an agreement in 1958 to resolve the
boarder dispute.
The agreement was to transfer 50% of Berubari Union to Pakistan.
For exchange of Kutch (Cooch) Bihar area.
The total area to be given to the Pakistan was 9 sq. miles. In west
Bengal, there arose a serious agitation, when the parliament sought to
implement the accord. The President immediately referred the issue to
the Supreme Court under Article 143. Two questions were raised:
Whether any legislative action is necessary for implementing the
Berubari accord.
If so, is a law of the parliament under article 3 sufficient or an
amendment of the constitution under article 368 is needed.
The Supreme Court held
Article deals only with internal adjustment inter se of the territories of the
constitute to a State because the area diminish under article 3 continues
to be the area of Union of India.
Article 3 therefore does not provide for cession of the territory to a foreign
State.
Therefore the agreement can be implemented only after
amending the constitution under article 368.
To cede territory is a sovereign power of the State. Accordingly,
9 amendment act, 1960, have been enacted.
th

Introduction to Fundamental Rights

In legal sense, the right means any interest, which is protected and
recognised by the State. Ordinary Right is that right available to one
person against another person and that private person is under a duty
not to infringe the right of another person. When a person has a right
against a State and that right is included in the constitution, it is called
constitutional right. When such constitutional right is guaranteed and
protected by the constitution, we call this Fundamental Right.

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Difference between Ordinary Right and Fundamental Right

Ordinary Rights are made available under the general law of land,
which can be amended by ordinary process. Fundamental Rights are
guaranteed and are made available by the constitution.
These
Fundamental Rights cannot be curtailed or withdrawn except as laid
down in the constitution.
If any Ordinary Right is violated, the remedy lies in the ordinary law
of land whereas the Fundamental Rights can be enforced through the
highest court namely Supreme Court.
Since the enforcement of Fundamental Right is itself a
Fundamental Right, Supreme Court is duty bound to accept the petition
and enforce the Fundamental Right, whereas in the case of other right, it
is discretionary.
Salient Features of Fundamental Rights
Fundamental Rights are kept at a high pedestal and are justice-able.
Fundamental Rights are protected on the one hand by Article 13 and
the other hand through Article 32 from curtailment or abridgement.
Supreme Court has been entrusted with the duty of enforcing
Fundamental Rules through Article 32.
Since Article 32 itself is a Fundamental Rule, Supreme Court cannot
refuse entertaining any petition.
Fundamental Rules are not absolute. Some restrictions are laid down
in the constitution itself and some can be imposed by legislature.
Fundamental Rules can be suspended or curtailed under four
circumstances as authorised by the constitution:
In the case of members of Armed Forces and the officers of
Central Police Organisations (CPOs) [Article 33]
When martial law is enforced [Article 34]
During emergencies [Article 352]
By amendment of the constitution [Article 368]
There are some exceptions to Fundamental Rules:
Article 31(a), which facilitates Agrarian Reforms, is the FIRST
EXECEPTION.
In other words no law which provides for
acquisition of any State or any right shall be void on the ground of
its inconsistency with Article 14,19 and 31[since deleted].
Under Article 31 (b), none of the acts or regulations given in the 9 th
schedule can be questioned in any court of law on the ground of
its inconsistency with Article 14,19 and 31[since deleted].
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Article 31 (c) empowers parliament and State legislatures to make law

to secure implementation of the principles of socialism under
Article 39 (b) and 39 (c) and such laws cannot be questioned in
any court of law even if they infringed Article 14,19 and 31[since
deleted].
In addition Fundamental duties are other exception. If there is a clash
between a Fundamental Rule and Fundamental Duty, the latter i.e.
Fundamental Duty will always prevail over the former i.e.
Fundamental Rule.
Classification of Fundamental Rights
Group Classification : There are 7 groups of Fundamental Rules.
Right to equality [Article 14,15,16,17 & 18]
Right to freedom [Article 19,20,21 & 22]
Right against exploitation [Article 23 & 24]
Right to freedom of religion [Article 25,26,27 & 28]
Cultural & Educational right [Article 29 & 30]
Right to property [Article 31 since deleted]
Right to constitutional remedy [Article 32,33,34 & 35]
Some Fundamental Rules are available only to the citizens and
some are available to the citizens and non-citizens.
What are the special privileges and the rights available only to
citizens?
The right not to be discriminated against any citizen on the ground
of Religion, Race, Cast, Sex or Place of birth i.e. RRCSP.
A right of equality of opportunity in the matters of Public
Employment and Public Appointment [Article 16]
The 7 freedoms otherwise called Magna Karta of civil liberties
Freedom of speech & expression;
Freedom to assembled peacefully without arms;
Freedom to form association & Union;
Freedom to move throughout the territory of India;
Freedom to reside & settle any part of India;
Freedom to acquire, hold & dispose of property [since
deleted through 44th amendment act, 1978]; and
Freedom to practice any trade, business, profession in any
part of India [Article 19]
Cultural & Educational rights [Article 29 & 30]

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In addition to the above, there are certain offices created in the

constitution, which can be occupied only by the citizens. For example,
President, Vice-President, Judges of High Court/Supreme Court,
Attorney General, Governor etc.
Besides, the right to vote for election to Lok Sabha and Assemblies
is available only to Citizens and they can alone become the members of
Union and State legislatures.
Article 14,20,21,23,25,27 and 28 are available to all Citizens and
non-citizens.
Wordings : Some Fundamental Rights are negatively worded as
prohibition to the State. For example, the State shall not deny to any
person equality before law or equal protection of law [Article 14].
There are other Fundamental Rules positively conferring rights
upon the individuals. For example - religious freedom.
Limitation : Some Fundamental Rights are addressed against the
executive but impose no limitation on the legislature. For example No
person shall be deprived of his life or personal liberty except according to
the procedure established by law. The other extreme is absolute
limitation on the legislature. Example Article 15.
Most of the Fundamental Rules are against the State. However,
some Fundamental Rules are against the private individuals also. For
example abolition of untouchability [Article 17]. Prohibition of human
traffic [Article 23].
Some Fundamental Rules are self-executory and some require a
law in support of execution. For example Article 17 i.e. for abolition of
untouchability, a law has to be made.
Fundamental Rights
Article 12 & 13
Article 12 defines the term State, the State includes :
The Government & Parliament of India.
The Government & legislature of each of the states.
All local & other authorities within the territory of India.
All local or other authority under the control of Government of India.
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Other authorities refer to any authority exercising the powers to issue

orders, rules, by laws or regulations having the force of law.
Article 13 [Important]
Article 13 is a source of judicial review. Article 13(1) declares that
all laws enforce in the territory of India immediately before the
commencement of the constitution shall be void to the extent to which
they are inconsistent with any of the provisions of part 3 of the
constitution.
Article 13 (2) provides that the State shall not make any law, which
takes away or abridges any of the rights conferred in part 3 of the
constitution. If any law is made taking away or abridging any of the rights
conferred in part 3, that law to the extent of repugnancy is null and void.
24th amendment act, 1971, added 13 (4) which declares that the
constitutional amendment passed under Article 368 shall not be
considered as law within the meaning of Article 13 and therefore cannot
be challenged as infringing the provisions of part 3 of the constitution.
Article 13(3) also provides a broad connotation (definition) for the
term law to include any ordinance, rule, order, by-law, regulation,
notification, custom or usage having the force of law.
Article 14 [Important]
Right to equality : It consists of Article 14,15,16,17 and 18.
Article 14 is the reflection of preamble stipulating two broad
principles of equality namely equality before law and equal protection of
law.
Article 15 prohibits discrimination against the citizens on the
ground of Religion, Race, Cast, Sex or Place of birth [RRCSP].
Article 16 confers the right of equality of opportunity in the matters
of Public Employment and Public Appointment.
Article 17, abolishes and untouchability, while
Article 18, abolishes titles.
Article 14 declares that the State shall not deny to any person
equality before law or equal protection of law. This right is available to
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both citizens and non-citizens. This is negative in character, injunction

(direction) to the State. Both the components of equality before law and
equal protection of law aim to establish what is ensured in preamble
namely equality of status.
Equality before law is negative in character. It implies absence of
any special privilege in favour of any individual however important he
may be. This is based on Disys Rule of law. Every official right from the
Prime Minister to the Peon, all are equal in the eyes of law and is under
the same responsibility for any act done without legal sanction. In other
words, howsoever, you are taller, the law is taller than you. The rule of
law has been declared as a basic structure of the constitution and
therefore cannot be charged even by amendment of the constitution.
Now the question is whether the equality before law is absolute.
The Rule of equality is not absolute and the constitution has itself
provided exceptions to this principle.
Under Article 361, the President or Governor is not answerable to
any court of law for any exercise of powers or any duty performs
or for any act purported to have done in the discharge of his
duties.
No criminal proceedings can be instituted or continued against
President or Governor during the term of his office.
No process of arrest or imprisonment of President or Governor can
be issued from any court during the term of his office.
No civil proceeding shall be instituted against the President or
Governor during the term of his office in respect of any act done
or purported to have done in his personal capacity whither
before or after his entry into the post and until the expiry of two
months notice in writing [the above immunity does not apply to
the impeachment proceedings].
Besides Article 361, Article 31(a), 31(b) and 31(c) are also
exception to Article 14.
Article 31(a) relates to Agrarian Reforms and abolition of
Zamindari system. Any law which is to implement these
Agrarian reforms cannot be questioned in any court of law
on the ground of its inconsistency with Article 14, 19 &
31[Since deleted].
Similarly any law, which has been incorporated in 9 th schedule
relating to land reforms is beyond judicial scrutiny even if
they violate Article 14, 19 & 31[Since deleted].
Similarly Article 31(c) relates to implementation of directive
principles given in Article 39(b) & 39(c), which aim prevention of
concentration of wealth and means of production. In other
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words, if any law is made to implement Article 39(b) and 39(c)

and if such law violates Article 14, 19 & 31[Since deleted], they
cannot be challenged on the ground of such repugnancy or
inconsistency.Exceptions accepted by committee of nations in
favour of foreign sovereigns and ambassadors is another
exception to Article 14.
Fundamental Duties given in Article 51(a) in part 4(a) impose
another set of restrictions to the right to equality because, if
there is a clash of interest between the individual interest & the
interest of society, the former should yield for the latter.
Equal protection of law
Equal protection of law means the law should be administered
equally when the circumstances are equal. In other words, this is a right
of equal treatment in similar circumstances. Both in the case of
privileges and liabilities of law. If there is any reasonable basis for
classification, then the legislature can make reasonable classification. It
is only a guarantee of equal treatment in equal circumstances permitting
differentiation in different circumstances.
Therefore, equal protection of law does not mean that all laws must
be general in character nor does it mean that the same law should apply
to all persons. It does not mean that every law should have universal
application because all persons are not by nature, by attainment, by
circumstances in the same position. The varying needs of different
classes of persons require special treatment. In fact, identical treatment
in in-equal circumstances would amount to inequality. Therefore, a
reasonable classification is not only permissible but also essential.
Nevertheless, the classification should not be arbitrary or artificial or
evasive. The classification should be founded on the intelligible
differentia and there should be a rational relation to the object to be
achieved.
The examples are :
Section 303 quashed in the case of Mithu vs State of Punjab
Section 303 of IPC.
Air India vs Nurgis Air India Rules quashed.
Bhagvanti vs Union of India marriage after retirement and children
born after retirement recognised in the case of family pension.
Revati vs Union of India Section 497 of IPC disables the wife from
prosecuting her husband for adultery. The adultery can be
committed only by man and nor by woman. The wife cannot be
punished even as an abettor.
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Similarly, the Supreme Court has held that the Government cannot
discriminate among women on account of marriage. The Supreme Court
allowed an appeal of Ms. Savita & her father challenging the Railway
Board circular which provided that the married daughter of the retiring
official was eligible for Government quarter if the retiring father has no
son. The Supreme Court held the circular gender biased, unreasonable
and unjust. They remarked that a son is a son until he gets his wife and a
daughter is a daughter throughout her life.
Article 15
Article 15(1) prohibits the state from discriminating against any
citizen on the grounds of Religion, Race Cast, Sex or Place of birth
(RRCSP).
On the above grounds, no citizen shall be subject to any disability
or liability or restriction or condition with regard to access to shops, public
restaurants, hotels, places of public entertainment, use of wells, tanks,
bathing guards, roads and places of public resorts etc which are
maintained wholly or partly out of State funds or dedicated to general
Public.
This right is available only to citizens and injunction to the states as
well as individuals and negative in character. The prohibition is not only
addressed to the State but also against fellow citizens and private
individuals. Of course, legislation would be required to make this
provision enforceable against the private individuals/citizens.
The above prohibitions against discrimination would not prevent
the State from
Making special provision for women & children.
2. For making special provision for the advancement of any
socially and educationally backward classes of citizens or for
schedule cast and schedule tribe.
This was added through first amendment act, 1951 to overcome the
decision of the Supreme Court in Chenbucum Durairaja vs Union of
India.
The Supreme Court has held that the State is competent to give
preference to women in Government jobs where they are equally
meritorious but more suited than men. In other words, preference to
women is only an affirmation action and it is not a reservation.
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Protective discrimination [Important]

The above exceptional classes of citizens namely women, children
socially and educationally Backward Classes, Schedule Cast and
Schedule Tribe require special protection and therefore a legislation may
be necessary for making special provision for these classes and such
legislation would not be held unconstitutional. In other words, even
though, the principle of equality demands prohibition of discrimination,
the discrimination in the above cases is protected in the interest of the
society. This principle is called protective discrimination.
Article 16 [Important for examination as well as for knowledge]
Article 16 provides the equality of opportunity in matters of public
employment. It lays down that there shall be equality of opportunity for
all citizens in the matters relating to employment or appointment to any
office under the State. Three points should be kept in mind :
This is available only for citizens;
Only for the matters of employment or appointment; and
Only for the posts/office under the State.
No citizen shall on the grounds of Religion, Race, Cast, Sex,
DECENT, Place of birth or RESIDENCE be ineligible for or discriminated
against in respect of any employment or office under the State.
Two additional grounds, which are not mentioned in Article 15
namely decent and residence, have been included in this article. This is
to ensure that nepotism and paroquolism are eliminated in the matters of
employment in government service.
For the above two provisions, following are the exceptions:
The clause three empowers the parliament to regulate by law. The
requirement as to the residence within the State/Union territory as a
qualification for appointment in any Government post, only parliament is
competent and not State legislature. By virtue of this power, parliament
had prescribed residence as a condition for employment in certain posts
and services in Andhra Pradesh, Himachal Pradesh, Manipur, Tripura
etc.
Article 16(4) empowers the State to make special provision for the
reservation of appointment of post in favour of any backward Classes of
18

citizens, which in the opinion of the State are not adequately represented
in the services under the State.
77th amendment act, 1995 inserted clause 4(a) which empowered
the State to make provision for reservation in the matters of promotion of
any class or classes of post in favour of Schedule Cast and Schedule
Tribe which in the opinion of the State are not adequately represented in
the services under the State.
Prior to August, 1997 the vacancies reserved for Scheduled Caste
& Scheduled Tribe, which could not be filled by direct recruitment on
account of non-availability of candidates were treated as back log
vacancies. These vacancies were treated as a distinct group and were
excluded from the ceiling of 50% reservation. However, Supreme Court
in
Indira Sahani vs Union of India held that the number of vacancies to he
filled on the basis of reservation in an year including the carried for ward
reservations should not exceed the limit of 50%. As a result of this, it
became difficult to fill the backlog vacancies and to hold special
recruitment drive. To overcome this problem, the constitution was
amended and 16(4)(a) has been added, which says
Nothing in this article shall prevent the State from making
any provision to fill up the unfilled vacancies which was
reserved for Scheduled Caste & Scheduled Tribe in
accordance with the provisions of this article and such class
of vacancies shall not be considered together with the
vacancies of that year for determining the ceiling of 50%
reservation.
The Supreme Court have always insisted that the Article 16(4)
must be read with the Article 335, which enjoins that the State, while
considering the claims of Scheduled Caste & Scheduled Tribe shall bear
in mind that the claim should be consistent with the maintenance of
efficiency of administration. Supreme Court in a case dealing with civil
service examination objected to the relaxation of qualifications and to
overcome this problem the Government has added a proviso to Article
335.
The proviso says
Nothing in this article shall prevent the State in making
any provision in favour of Scheduled Caste/Scheduled
Tribe for relaxation of qualifying marks in any
examination or lowering the standards of evaluation for
reservation in matters of promotion to any clause or
19

clauses of services in connection with the affairs of the

Union or of State.
Article 16(5) says that a law which provides that the incumbent of
an office in connection with the affairs of any religion or denominational
institution shall be a person professing (advocating) a particular
religion/denomination shall not be treated to be repugnant to this article.
Article : 17 Abolition of untouchability
Under Article 17, untouchability is abolished. Its practice in any
form is forbidden. The enforcement of any disability out of untouchability
shall be an offence punishable in accordance with law. This is non-self
executary in nature. Deriving powers in Article 35, parliament enacted
untouchability (offence) act, 1955, which was renamed as protection of
Civil Rights Act, 1955.
Untouchability has not been defined in the constitution. However it
is a well known connotation, primarily referring to any social practice
which looks down uncertain depressed classes of people solely on birth
and disables them from having any kind of intercourse with the people of
so called higher cast. The act i.e. Article 17 has declared certain acts as
offences,
Refusing admission in Public institutions like hotel, motel,
educational institutions etc.
Preventing from worshiping in public places of worship.
Insulting SC/ST on the ground of cast, preaching untouchability,
justifying untouchability and practicing untouchability.
which would involve one to two years imprisonment.
They are
disqualified to stand in the elections. Statutory presumption of offence
unless the contrary is proved.
Article : 18

Abolition of Title

Any title not being Military or Academic shall be conferred by the

State.
No citizen of India shall accept any title from any foreign State.
No person who is not a citizen shall, while holding any office of
profit under the State, accept any title from any foreign State.
No person holding any office of profit or trust under the State shall
without the consent of the President accept any present or
employments or office of any kind from or under any foreign
State.
20

There is no penalty prescribed for infringement of any above

prohibition. In other words, Article 18 is only a directive. Parliament can
however make a law to deal with the instances of violence's of this
provision.
Conferment of national awards and Article 18. The national awards
were instituted in 1954. Any person without distinction of cast, race,
position or sex shall be eligible for these awards. It cannot be awarded
posthumously. This cannot be used as titles. Supreme Court in 1996
declared that the national awards are not violative of the principles of
equality.
Right of freedom
Right to freedom includes Article 19,20,21 and 22.
Article 19 deals with personal liberty, which are called Magna Carta of
civil liberties.
Article 19 gives 7 freedoms.
Article 20 provides protection in respect of conviction for offences.
Article 21 deals with protection of lit and personal liberty.
Article 22 is protection against arrest and detection.
Article 19 gives 7 freedoms:
Freedom of Speech & Expression.
Freedom to assemble peacefully without arms.
Freedom to form Union & association.
Freedom to move throughout the territory of India.
Freedom to reside & settle in any part of India.
Freedom to acquire hold & dispose of property (deleted through
44th amendment act, 1978)
Freedom to practice any profession, trade or business or
occupation in any part of India.
These freedoms are not absolute. Reasonable restrictions can be
imposed by the State by making a law.
Man is a national being. He normally desires to do many things.
But in a civilised society, the desires should be controlled, reconcile and
regulated in their exercise by similar desires of others. There cannot,
therefore, be any right, which is absolute and as such injurious to the
community as a whole.
21

The restrictions should be only on the grounds mentioned in the

constitution in Article 19. They should be reasonable and not arbitrary.
The State has to make a law to enforce the restriction limited to the
ground mentioned in the article. The rights given in Article 19 are
available only to the citizens.
Right to freedom of speech and expression
This includes freedom of press also. There is no separate article
for press freedom. This includes not only the rights to propagate your
views but also others views. This is linked with the people right to
information. Freedom of speech and expression includes right to silence
also (recall expulsion of three children from the school National anthem
case and LIC house journal case). The freedom of speech & expression
can be restricted on the following grounds:
In the interest of sovereignty, integrity, security, friendly relations
with foreign state, public order, decency, morality, contempt of
court, deformation and incitement to offence.
Freedom to assemble peacefully without arms: Reasonable
restriction can be imposed on the grounds of sovereignty,
integrity and public order.
Freedom to form associations and unions : Freedom to assemble
peacefully without arms:
Reasonable restriction can be
imposed on the grounds of sovereignty, integrity, public order
and morality.
Freedom to move throughout the territory of India : Freedom to
assemble peacefully without arms: Reasonable restriction can
be imposed on the grounds of general public and Scheduled
Tribe.
Freedom to reside and settle in any part of India. This right can be
restricted on the ground of general public and Scheduled
Tribe.Right to acquire, hold and dispose of property. This was
deleted through 44th amendment act, 1978.
Right to practice any trade in any part of India. Freedom to
assemble peacefully without arms: Reasonable restriction can
be imposed on the grounds of general public (which include
public order, health, economy, security, morality etc.)
Prescribing professional, technical qualification for practicing any
profession.
For enabling the State to carry on any trade to the exclusion of
citizens.
Based on this article alone, the Advocate Act, Bar Council Act,
Chartered Accountant Act etc have been made.
22

Article 20: Protection against

This consist of three clauses:
Protection against ex post facto law;
Protection against double jeopardy and
Protection against self-incrimination.
Protection against ex post facto law:
This imposes a limitation on the law making powers of legislature.
Normally a legislature can, make a law retrospectively. However, this
article prohibits the legislature to make retrospective criminal law, though
there is no restriction for making retrospective civil law. In other words, a
test can be imposed retrospectively.
No person can be convicted for an offence except for violating a
law in force at the time of omission of the act. Similarly, he should not be
subjected to a penalty greater than that, which might have been inflicted
under the law in force at the time of commission of the offence. In other
words, if an act is not an offence at the time of commission of the
offence, it cannot be made an offence at a later date subsequent to the
incident. In short, an ex post facto law is a law, which imposes a penalty
retrospectively.
This protection is available only against a conviction or sentence
and not for trial. Similarly, this protection cannot be claimed in the case
of preventive detention. However, this protection can be claimed if it is
beneficial to the accused.
Protection against double jeopardy
Article 20(2) offers a guarantee against double jeopardy. In other
words, no person shall be prosecuted and punished for the same offence
more than once.
The protection against double jeopardy is given only when the
accused has not only been prosecuted but also punished. In British and
USA, the protection is available against 2 nd prosecution also irrespective
of whether the accused was acquitted or convicted in the first trial.
The 1st trial or the proceedings should have taken place before a
court
proceedings
before
customs
authorities
or
departmental/administrative authorities, cannot be considered as a
proceeding of judicial nature. In other words, this protection is available,
23

only if the punishment is inflicted and the offence is same. If the offence
is different, prosecution can be launched afresh. Similarly, if he has been
acquitted in the trial, he can be re-prosecuted again. Therefore, the
protection is not against re-prosecution but it is only against repunishment for the same offence.
Clause 3 Protection against self-incrimination
Clause 3 provides that no person who is accused of any offence
shall be compelled to be a witness against himself. This is available only
when a person is accused of an offence. In other words, an FIR should
have been filed against him. It is a protection against compulsion to be
witness. Protection against such compulsion, which would implicate him
in giving evidence against himself. This is based on the norms of natural
justice that every person is innocent until he is proved guilty. It is for the
prosecution to establish the guilt and the accused need not make any
statement against his will.
This humanity does not extend to compulsory production of
material objects or specimen writing or finger impression or blood
specimen etc.
Article 21 (Very Important, Very often asked)
It says no person shall be deprived of his life or personal liberty
except by a procedure established by law. In other words, before a
person is deprived of his life or personal liberty, the procedure given in
the valid law should have been followed.
This article does not refer to due process of law as prevailing in US
constitution. It says procedure established by law and places the
legislature in a more important position vis--vis judiciary. In A.K.
Gopalan vs Union of India, the Supreme Court held that our constitution
embodied the English concept of personal liberty and not gives process.
Therefore, if a competent legislature makes a law providing that a person
may be deprived of his personal liberty in certain circumstances and in
certain manner, the validity of the law cannot be challenged on the
ground that the law is unreasonable or unfair or unjust.
However, in Menaka Gandhi case, Supreme Court upheld that to
travel abroad is a fundamental right and held that the expression
personal liberty covers a number of rights, which are included in the
Fundamental Right. It also declared that a law made by the State to
deprive a person of his personal liberty must prescribe a procedure for
24

such deprivation, which should not be arbitrary. Such a law would be

invalid, if it violates principles of natural justice.
Article 21, therefore, now includes following rights:
Right to live with human dignity all that goes along with it. Namely
adequate nutrition, clothing, shelter, facilities for reading, writing
and expressing ourselves with diverts forms freely moving about
and mingling with fellow human beings.
Right to minimum wages (Asiad workers case).
Right to livelihood because easiest way of depriving a person of his
right to life would be to deprive him of his means of livelihood (in
pavement Dweller's case Supreme Court's decision)
Right to shelter which includes adequate living place, clean
surroundings and other civic amenities.
Right to privacy (Kharag Singh dacoit case domiciliary i.e. night
right even a women of easy virtue has a right to privacy; Auto
Shankar case Supreme Court held that Article 21 guaranties
right to be left alone)
Right against inhuman treatment and right against the use of 3 rd
degree method.
Right to health and medical assistance.
Right to education (Supreme Court held in Mohini Jain case, right
to education is a fundamental right and charging capitation fee
is an offence)
Right against delayed execution. In other words, if an appeal is
pending with the President against death penalty for more than
2 years, the death penalty is automatically treated as life
sentence.
Supreme Court held that it is the professional obligation of all the
doctors to extend medical aid to the injured immediately without
waiting for legal formalities.
In another case, if there is a delay in disposal of mercy petitions by
the Union Government, the death sentence will automatically
become life sentence.
Right to free legal aid.
Right against solitary confinement (Shobhraj case)
Right to speedy trial.
Right against handcuffing.
Right against custodial violence.
Right against illegal arrest.
Right against sexual harassment of women in work places (Recent
case)
Article 20 and 21 cannot be suspended even during emergency.
25

Article 22 : Preventive detention (Very Important)

It
prescribes
the minimum procedural requirement that must be included in any law in
accordance to which a person may be deprived of his life or personal
liberty.
Article 22 guarantees 4 rights to the persons arrested for any offence
under an ordinary law:
The right to be informed, as soon as possible, of ground of arrest.
Right to consult and be represented by a lawyer of his choice.
Right to be produced before a magistrate within 24 hours exuding
the journey time.
Freedom from detention beyond 24 hours except on the orders of
the magistrate.
There are two exceptions to the above provisions. In other words,
two groups of people are not eligible for the above four rights:
An enemy alien (Country); and
A person arrested and detained under preventive detention law.
The difference between punitive detention and preventive detention
The object of punitive detention is to punish a person for a crime,
which he had already committed.
The object of preventive detention is not to punish a person for
what he has already done but to intercept him before he commits it and
to prevent him from doing under preventive detention. No offence is
proved nor any charge is formulated.
Constitutional safeguard against preventive detention laws:
The Government can detain a person under this law only for three
months.
For detention beyond three months, a report should be obtained
from an advisory board as to whether the detention is justified.
The advisory board comprises persons who are or who have been
or who are qualified to be appointed as judge of high court.
Maximum period of detention will be prescribed in the law to be
made by parliament.
The parliament may also by law prescribe the following:
The circumstances and clauses of cases in which a person
may be detained for more than three months without
26

obtaining the opinion of the advisory board (this proviso

eats away the very sole of the article)
The maximum period for which a person may be detained
under Preventive Detention law .
The procedure to be followed by the advisory board in an
enquiry.
The preventive law detention has the following rights:
1. He should be informed of the ground of detention excepting the
facts, which are against public interest.
2. He should have the earliest opportunity of making
representation against the order of detention.
th
44 amendment act, 1978 made the following changes:
1. The period of detention without the recommendation of Advisory
Board has been reduced from three months to two months.
2. The Advisory Boards will now consist of:
(a) Chairman who should be the serving judge of High Court.
(b) Two members who should be serving or retired judge of
any high court.
The chairman and members will be appointed by the Government
on the recommendation of chief justice of appropriate High court.
In addition, the 44th Amendment deleted the provision, which allows
preventive detention without reference to advisory board.
Even though, 44th amendment acts, was asserted to by President
in 1978, this has not been notified so far even after 23 years. The
judiciary has expressed its helplessness in interfering in the legislative
matters.
Preventive detention is a unique feature of the Indian constitution.
India has earned a dubious distinction of being the only democratic
country in the world who have preventive Detention laws even during
normal times. No doubt, USA, UK and Japan also have Preventive
Detention laws but only during war times and not during normal times.
Right against exploitation
It consists of Article 23 and 24.
Article 23 prohibits trafficking human beings, Vegas and similar
forms of forced labour. However, the State can impose compulsory
services for public purpose provided that in making so, it shall not make
27

any discrimination on the ground only of religion, race, cast or class or

any of them.
Traffic in human beings means selling and buying man and woman
like goods. It includes immoral traffic in women and children. It includes
Devadasis' also. This article protects the individual not only against the
State but also against the private individual. This does not prohibit
forced labour as a punishment for criminal offence.
Article 24
No child below the age of 14 shall be employed to work in any
factory or other hazardous employment. This article does not prohibit
their employment in any innocent or harmless job or work.
Secularism/Secular rights
The term secular has not been included in any of the provisions of
the constitution. This was included in the preamble through 42 nd
amendment act, 1976. Secularism has been declared as a basic
structure of the constitution in S.R. Bommai Case by the Supreme Court.
India has been declared as a secular country. Secular means that
the State has no religion of its own nor is it pro-religion or anti-religious or
irreligious. In the matters of religion the State is neutral. In the eyes of
law all religions are equal. It is the policy of the State to protect every
religion but interferes with none. The doctrine of non-interference by the
State in the religions matters is reflected in the principle that the court
cannot take cognisance of any dispute relating to the religious rights or
adjudicate them except relating to right to property or right to hold office.
Similarly the courts are forbidden to pronounce judgement on the truth of
religious rights or religions tenets or the courts cannot regulate the
religions ceremonies. Such a State is called secular State, which is
founded on the principle that the State as a political institution is
concerned more with the relations between man and man rather than
man and God.
There are 4 religious freedoms or secular rights:
Freedom of conscience & free profession practice and propagation
of religion (Article 25)
Freedom to manage religious affairs (Article 26)
Freedom from payment of taxes for promotion of any particular
religion (Article 27)
28

Freedom as to attendance at religious instructions or religious

worship in educational institution (Article 25)
Article 25
Subject to public order, morality & health and other provisions of
part-III of the constitution, all persons are equally entitled freedom of
conscience, right to freely profess practice and propagate religion.
This does not prevent the State from making any law regulating or
restricting any economic political or financial or other secular activities
associated with the religious activity.
Similarly, this does not prevent a State from making a law to
provide for social welfare or social reform or throwing open Hindu
religious institutions of public character to all sections of Hindus.
This article is an article of faith, incorporated in recognition of the
principle that the real test of true democracy is the ability of even an
insignificant minority to find its identity.
Article 26
Subject to public order, morality and health every religious section
o denomination has the right to establish & maintain institution for
religious and charitable purpose.
To manage its own affairs in the matter of religion to own acquire
and hold movable & immovable property and also to administer such
property in accordance with law.
Supreme Court held that the religious denomination should fulfil
three conditions :
1. Common faith;
2. Common organisation; and
3. Must be designated by a distinctive name.
Accordingly various philosophies governing Hindu Societies like
Adwaitas Dewatas, Anand Marg, Remkrishna Matha can be termed as
denominations.
Similarly, establish & maintain should go together. In other words,
Aligarh Muslim University was not established by a Muslim minority.
Therefore, they have no right to maintain it.
Article 27
29

It states that 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. In other
words, if the State aid is extended to all religious institutions along with
all secular ones without any discrimination, then Article 27 does not
apply.
Article 28
It prohibits the importing of religious instruction or religious worship
in educational institutions.
1. Religious instruction/religious worship is totally forbidden in any
educational institution, which is wholly maintained out of State
funds.
2. In the institutions, which are administered by the State but are
establish under any trust or endowment, there is no restriction on
religious instruction.
3. In educational institutions which are declared for public and
recognised by the State or which are receiving aid out of State
funds, religious instruction may be imparted only with the consent
of the individual. If they are minors, the consent of the guardians
should be obtained.
Cultural and educational rights
Article 29 & 30 : Right of Minorities
Article 29 speaks about the protection of interest of the minorities.
Article 30 use the right to the minorities to establish and administer to
educational institutions.
Article 29(1) guarantees to any section of the citizens residing in
any part of the India, the right to conserve their distinct language, script
or culture. This also provides that no citizen shall be denied admission
into any educational institution maintained by the State or receiving aids
from the State on the ground of religion, race cast or language.
Although Article 29 is commonly assume to relate to minorities, its
scope is extended to any section of citizens. This may well include
majority also. In other words, the term minority is used in a wider sense
so as to include any minority with reference to the majority. For example
Maharastrians settled in Bihar are minorities.
Article 30
30

This article is confined only to minorities.

It guarantees to all religious and linguistic minorities, the right to
establish and the right to administer educational institutions of their
choice. In other words, establish means to bring the institution into
existence and to administer means, to effectively manage them.
It has also been enjoined that in making any law for compulsory
accusation of property of any educational institution of the minorities.
The State should ensure that the amount fixed should be reasonable and
in accordance with law.
Similarly, the State is forbidden to show any discrimination against
any educational institution in granting aid on the ground that a particular
institution is under the management of a minority.
Saving of certain laws
44th amendment act, 1978 deleted Article 31 right to property from
part-III of the constitution.
1st amendment act, 1951 inserted Article 31(a) and Article 31(b).
25th amendment act, 1971 incorporated Article 31(c).
Article 31(a) deals with abolition of Zamindari System otherwise
called Agrarian Reforms. This empowers the stat to make law on the
acquisition of a State or nationalisation of property etc and such laws
cannot be declared void even if they are violative of Article 14,19 or 31.
If such a law was made by State legislature, the immunity will be
given only if the law was reserved for consideration by the President and
he has given the consent.
Article 31(b) provides that none of the acts and regulation in the 9 th
schedule shall be deemed to be void on the ground of their inconsistency
with any of the rights in part-III.
The 9th schedule initially had only 13 acts and today it has over 284
acts. Non agrarian acts have also been added in the 9 th schedule to get
the protection against judicial review. Ex Tamilnadu reservation act has
been incorporated in 9th schedule.
Article 31(c) empowers parliament and State Legislatures to make
law to secure the directive principles in Article 39(b) and (c). Such laws
31

cannot be questioned on the ground of their inconsistency with Article 14,

19, & 31 (Since deleted).
However, the clause-I of article 31(c) which made all the directive
principles over and above the Fundamental Rights was held invalid by
the Supreme Court in the Fundamental Rights case.
Today the position is Article 39(b) & (c) can alone prevails over the
Fundamental Rights of Article 14,19 and 31.
Right to Judicial Remedy
Article 32 (Most Immediate)
It provides right to constitutional remedy.
provisions:

This article has 4

1. The right to move Supreme Court for enforcement of Fund,

rights is guaranteed.
2. The Supreme Court shall have the powers to issue directions
orders and prerogative writs in the nature of Habious corpus,
mandamus, prohibition, cerorari and quo warranto for
enforcement of Fundamental rights.
3. Without prejudice to the powers conferred on Supreme Court,
the 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 above.
4. The right to constitutional remedy guaranteed under this article
cannot be suspended except as otherwise provided in the
constitution.
It is an admitted fact that a declaration of Fundamental Rights is
meaningless unless there is an effective missionary for enforcement
of these rights. Article 32 provides a guaranteed remedy for
enforcement of Fundamental Rights conferred in Part-III of the
constitution.
These remedial rights have been made itself a
Fundamental Rights. Therefore, Supreme Court is duty bound to
accept a writ petition for enforcement of Fundamental Right. Thus
Supreme Court has been made as a protection and guarantor of
Fundamental
Rights.
This
is
the
region
why
Dr. Ambedkar had declared as follows:
If I was asked to name any particular article in this
constitution as the most important, without which
the entire constitution would become a nullity, I
could not refer to any other article except Article
32.
32

In clause IV, it has been stated that this right cannot be

suspended except as otherwise provided in the constitution. Article 352
& 359 provide that Article 32 can be suspended in respect of all
Fundamental Rights except Article 20 & 21 at the time of national
emergency declared under Article 352. Article 19, of course stands
automatically suspended during emergency.
Writs
There are 5 types of writs:
Habious Corpus;
Mandamus;
Prohibition;
Cersurory;
quo-warranto
Habious Corpus means Produce the Body. The power to issue a
writ of Habious Corpus is vested only in Supreme Court and High Court.
The writ is direction of the court to a person/authority who is detaining
another ordering him to bring the body of the person at a given time to a
given place for a given purpose. The purpose is to set at liberty the
person who is confined without any legal jurisdiction. This writ is issued
not only against State but also against the individual (Supreme Court
decision on the Cancer patient case).
Habious Corpus is not issued in the following cases:
Where the person against whom the writ is issued the person who
is detained is not within the jurisdiction of the court.
To secure the release of a person who has been imprisoned by the
court on a criminal charge.
To interfere to the proceedings for the contempt of parliament or
contempt of the court.
Writ of mandamus
Mandamus means the command. This is an order of the Supreme
Court and High Court commanding a person or authority to do what is his
duty or not to do what is not his duty. It commands the person to whom it
is addressed to perform some public or quasi-public legal duty which he
has refused to perform. In other words, the applicant should have a legal
right to the performance of the legal duty of public nature. It lies not only
against the judicial authority but also against administrative authority i.e.
non issue of promotion order by the appointing authority.
Mandamus cannot be issued against the President or the Governor
or a Private individual unless the State is in collusion.
33

Prohibition
This writ is issued to prevent an inferior court or tribunal from
exceeding its jurisdiction or acting contrary to the rules of natural justice.
In other words, it is issued by the Supreme Court/High Court to an
inferior court for the purpose of preventing them from usurping a
jurisdiction with which it was not legally vested. The difference between
mandamus and prohibition is that the former commands activity and the
later commands inactivity. The former is against not only judicial but also
against administrative authority. While the latter is against judicial and
quasi-judicial authorities.
Certiorari
This is an order of removal of a suit from an inferior court to a
superior court. It is used to bring up the decision or record of the inferior
court to the superior court with a view to it being quashed. In other
words, it is also against judicial/quasi-judicial authorities and not against
administrative authorities.
Although, both the writs of prohibition and cerciorary are issued
against the court, there is a difference between the two. While prohibition
is issued to prohibit the court from making ultravirous (illegal) orders,
while cerceorary is issued to quash an order or decision made unlawfully.
In other words, the prohibition is issued during the pendency of
proceedings which the cerceorary is issued at the end of the trial to
nullify an illegal order.

Quo-waranto
This is a common law process according to which, the high court or
Supreme Court may grant an injunction to restrain a person from acting
in an office to which he is not entitle and may also declare the office to be
vacant. An application for issue of quo-waranto is maintainable only in
respect of an office of Public nature created by a law and not against any
Private institution. In other words, the office should be of public nature
and substantive in character and the citizens should have an interest in
the said public office.
Article 33
Power of parliament to modify the right in application of armed
forces etc.
34

Parliament may by law determine in what extent any of the

Fundamental Rights be restricted or abbragated in their application to
armed forces or the forces charged with the maintenance of Public order
to ensure proper discharge of duties and maintenance of discipline
among them.
50th amendment act, 1984 has amended Article 33 and extended
its scope to two more categories of officials:
The persons employed in any bureau/organisation established by the
State for collection of indeligence and
The persons employed in connection with telecommunication system
set up for armed forces or Central Police Organisation or
intelligence bureau.
Article 34 (Very Important)
Parliament may by law indemnify any person in the service of the
Union or the 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
where martial law is enforced or where any sentence passed or
punishment infringe/inflicted or forfeiture ordered.
It is note worthy that there is nothing in the constitution to show
under what circumstances Government can declare martial law. Some
Constitutional experts feel that national emergency can be construed as
martial law. This does not appear to be correct because even during
national emergency, council of ministers headed by the Prime Minister
continues in the President of India is to avail by the advice of council of
ministers under article 74 of the constitution besides even during
emergency constitution remains and martial law has no relevance so
long the constitution functions.
Nevertheless article 34 is implicit.
Article 35
Parliament shall have the powers and State legislatures do not
have the powers to make law with reference to any maters in Clause 3
of Article 16 (Residential restriction to public employment). Clause 3 of
Article 32 (empowering other courts with the powers of Supreme Court),
Article 33 & 34 and also parliament has the powers to make lawprescribing punishments for the acts, which has been declared as
offences.
35

In respect of the latter one, a duty has been cast upon the
parliament.
Part IV : Directive principles of State Policy
Definition of the State is same for directive principles, as given in
Article 12.
Directive principles are not enforceable by any court of law.
Nevertheless, they are fundamental in the governance of the country.
Directive Principle of State policies have been taken from Irish
Constitution, which borrowed it from Spanish.
Directive Principles have been commented as conscience of
Constitution, Constituting a comprehensive political economic socio
welfare programs claiming to establish a modern welfare State, totally
different from the police State.
This has been criticised as pious wishes of an old man, a New Year
resolution to be repeated every year. A post dated cheque drawn on an
unknown banker payable at the convenience of the bank.
The constitution makes it very clear in Article 37 that the Directive
Principles of State policy is not enforceable through court of law. In the
same time, it has been declared that these principles are Fundamental in
the governance in the contrary and it has imposed a duty on the State
namely legislature, executive and judiciary that it should apply these
principles in making laws. Obviously, the judiciary has to keep this
mandate of the constitution in mind while examining the judicial validity of
the laws, which aim at the implementation of Directive Principles of State
policy vis--vis the infringement of Fundamental Rules.
The Directive Principles has two objectives:
The State should make efforts to promote welfare of the people by
securing and protecting the social order in which political
economic and social justice shall inform all institution of national
life.
To minimise the inequality of income status facilities and
opportunity not only among the individuals but also among the
groups of people (added through 44th amendment act, 1978).
Directive Principles can be classified into three groups:
1. Socialistic;
36

2. Gandhian; and
3. Liberal
Socialistic
1. To provide adequate mercy of livelihood;
2. Equal pay for equal work for both men and women; and
3. Workers participation in management (added through
42nd amendment act, 1976).
4. Protection of workers and children.
5. To regulate the economy system to avoid concentration of
wealth and means of production.
6. Decent standard of living and facilities to all workers including
living wage.
7. To secure health and strength of workers and also to secure the
children from economic abuse and unsuited their age including
just human conditions and maternity relief to women (added
through 42nd amendment act, 1976).
8. Right to work, Right to education and Right to public assistance
in cases of unemployment, old age sickness and disablement.
Gandhian Principles
1. Organisation of village Punchayat with powers of self-government.
2. Promotion of weaker section specially Scheduled Caste/Scheduled
Tribe and protect them from exploitation and social injustice.
3. Promotion of village and cottage industries.
4. Prohibition of liquor and other intoxicates except for medical use.
5. Prevention of house lator.
Liberal Principles
1. Uniform civil court (Article 44)
2. Free and Compulsory education for children to be achieved in
10 years from the commencement of constitution still to be
achieved.
3. Separation of judiciary from executive plus (only a few States
have implemented this)
4. Effective legal system with even handed justice to all citizens
without regard to economic and other disabilities including free
legal aid (added through 42nd amendment act 1976)
5. Reorganisation of Agriculture and Animal Husbandry on modern
and scientific lines.
6. To protect and improve environment and safe guard wild life
(added through 42nd amendment act, 1976)
37

7. Protection of monuments of historical and artistic interest from

removal and destruction.
8. Promotion of international peace and security and maintenance
of just relations between the nations.
9. To foster respect for international law and treaty and obligations
and to encourage settlement of disputes by arbitration and
mutual consultations.
Of the above directives Article 38 and Article 39 embody with juries
prudential doctrine of distributive justice (Most Important). Thus, concept
connotes the removal of economic inequality rectifying the injustice
resulting from the dealing and transaction between the unequal in the
society.
Article 38 specifies the objective.
Article 39 aims to implement socialistic principles. Article 39(b)
aims to secure that the ownership and control of material resources of
the community should be so distributed as to sub-surved the common
good (Most important).
Article 39(c) says that the operation of economic system should not
result in the concentration of wealth and means of production to the
common detriment of the society.
Difference between Directive Principles & Fundamental Rights
The Fundamental Rights are limitations upon the State which
Directive Principles are the positive obligations of the State.
The Fundamental Rights aim to achieve the political democracy
whereas the Directive Principles establishes socio-economic
democracy.
Fundamental Rights can be enforced through court of law (Article
32) and the Supreme Court is bound to declare void if any law
violates any of the Fundamental Rules (Article 13). The court
cannot declare as void any law on the ground of contravening
Directive Principles.
Similarly no court can compel the
legislature or executive to implement any of the Directive
Principles.
Theory of Harmonious Relations
The Directive Principles are the positive obligations of the State.
However, the Fundamental Rights with the expressed protection of
constitution cannot be allowed to be over ridden by the Directive
Principles.
38

Therefore, the Supreme Court had tried to bill a harmonious

relationship between the two. For this purpose the Supreme Court has
evolved the doctrine of Harmonious construction, which provide that if a
provision of the constitution gives two or more interpretation, then the
court will take that interpretation which avoids conflict between the two.
The conflict, if not avoidable, then the Fundamental Rights should
prevail.
Supreme Court struck down bank nationalisation act and abolition
of prebipurses (pension to the nature kings) on the grounds that they
violated Article 14, 19 & 31. These relations were intended to implement
Article 39 (b) & 39 (c). To overcome this Mrs. Gandhi brought in 25 th
Amendment Act, 1971 which inserted Article 31(c) giving protection to
Article 39(b) & 39(C). This was upheld by the Supreme Court in
Kesawanand Bharati Case (Fundamental Rights case).
Gaining strength from this decision 42 nd Amendment Act, 1976 was
brought in by Mrs. Indira Gandhi. Instead of protecting Article 39(b) &
(c), it was laid down all Directive Principles would prevail over
Fundamental Rights. However Supreme Court in Minerva Mills case
quashed this portion of amendment.
Therefore, today the position is while Article 39(b) & (c) would
prevail over Articles 14, 19 & 31. This protection is not given to other
Directive Principles.
Implementation of Directive Principles
No doubt every Directive Principles has not been implemented.
Nevertheless much has been done in this direction.
The Government have abolished the hereditary intermediaries like
Jamindars & Jagidars.
Many of the State have implemented land reforms to prevent
concentration of land holdings.
Organisation of village panchayat & Nagarpalikas is complete with the
passage of 73rd & 74th Amendment Act providing grass root
democracy to local self Governments.
For promotion of cottage industries, several boards have been set up
like silk board, Fire Board, KBIC, All India Handicaps Board etc.
Under direct attach on poverty programmes, many community
development programme have been launched.
In many of the State judiciary have been separated from executive.

39

In addition Maternity Relief Act, Children's Act, Minimum Wages

Act, Industrial Dispute Act, Protection of Civil Rights Act, Prohibition of
Dowry Act, Nationalisation of Banks, Nationalisation of Insurance etc. are
as a Result of Implementation of Directive Principles.
Directive Principles still untouched
Uniform Civil Court (Article 44)
Right to work.
Prohibition (only Gujarat has implemented)
Compulsory primary education supposed to have been completed
within 10 years of the inception of constitution.
Workers participation in management.

The other directives available in the constitution

Article 350(a) enjoins to provide adequate facilities for instruction in
the mother tongue at the primary stage of education to children
belonging to the linguistic minority group.
Article 351 enjoins upon the Union to promote the spread of Hindi
language and to develop it.
Article 335 enjoins that the claims of Scheduled Caste/Scheduled
Tribe should be taken into consideration consistently within
maintenance of efficiency in administration, which making
appointments to the services and post in the Union and states
(refer notes on Article 16)
Part IV(a) : Article 51(a) [Important for General Studies]
Fundamental Duties
Fundamental Duties incorporated through 42 nd Amendment Act,
1976. Except Japan, no other democratic country has a provision for
Fundamental Duties. In Japan, right to work is a Fundamental Right. On
the other hand, in India, right to work is only a Directive Principle, which
cannot be enforced by a court of law. The idea of Fundamental Duties
was recommended by Swaran Singh Committee. Ten duties have been
laid down for the citizens.
To abide by the constitution, respect its ideals and institution, the
national flag and national anthem.
40

To cherish and follow the noble ideas which inspire our freedom
struggle.
To protect sovereignty, unity and integrity of the country.
To defend the country and render national service when called
upon.
To promote harmony and the spirit of common brotherhood among
all people of India and to renounce the practices derogatory to
the dignity of women.
To preserve the rich heritage of our composite culture.
To improve the natural environment like forest, rivers and wild life
and to have compassion for living creatures.
To develop scientific temper, humanism reform and spirit of enquiry.
To safe guard public property and avoid violence.
To trail for excellence in all shears of individuals so that the nation
constantly rises to the higher level of achievement.
There is no provision in the constitution for enforcement of these
duties. These are statutory duties and shall be enforceable by law. A
law giving effect to any of the duties may be interpreted by the court
library to be reasonable in relation to Articles 14 and 19.
Under these provisions, the Supreme Court upheld the grant of
Bharat Ratna and Padma awards.
Similarly Supreme Court issued directions to stop quarrying
operations in certain parts of Uttar Pradesh for the protection of
environment.
Similarly, Supreme Court recently held that it is the duty of the
Central Government to introduce compulsory education on protection of
natural environment in all educational institutions.
Union Executives [Very important, normally 2 questions]
Union Executives consists of President, Vice-President, council of
Ministers and Attorney General.
Article 52 provides that there shall be a President of India.
Article 53 provides that the executive power of the Union shall be
vested in the President and shall be exercised by him either directly or
indirectly through officers subordinate to him in accordance with the
provisions of the constitution.

41

The supreme command of the defence forces of the Union is also

vested in President of India and he is to exercise these powers in
accordance with law. However, nothing in this article shall be deemed to
transfer to the President any function conferred by any existing law on
the Government of the states or any other authority. Similarly, this article
doe not prevent the parliament from conferring, by law, any functions, or
any authority other than President.
In other words, the President will exercise the executive powers in
accordance with the provisions of the constitution and he will exercise
the military powers as authorised by law. Simultaneously, the authority of
parliament and the states has been protected from the possible
encroachment by the President.
The executive powers mentioned in Article 53 is explained and
elaborated in Article 73 which use the extend scope of the executive
power of the Union.
The term 'executive power' has not been defined in the
constitution.
Ordinarily, it connotes (indicate) the residue of the
governmental functions that remain after the legislative and judicial
functions have been taken away. Broadly, the executive function
compress determination of policy, execution of policies, initiation of
legislative proposals, maintenance of law and order, formulation of
foreign policy, general administration of the State, promotion of politicalsocio economic conditions of the people etc. To be precise executive
power is the powers of carrying on the administration of the affairs of the
State, except the functions, which have been specifically given to the
legislative and judicial wings of the State.
Keeping this in view, Article 73 says that the executive power of the
Union shall extend to the methods on which the parliament has the
powers to make law and also to the exercise of such rights, which are
exercisable by virtue of any treaty of agreement or sanad etc. In other
words, the executive powers of the Union are co-terminus with the
legislative powers of the Union and in addition the powers as authorised
by agreement or treaty made with other countries. This also implies that
the executive power of the Union cannot extend to the State except as
otherwise provided in the constitution.
Now, how the executive powers of the Union is exercised
Article 53 has provided that the executive powers of the Union is
vested in the President of India, who will exercise these powers either
42

directly or indirectly through officers subordinate to him in accordance

with the provisions of the constitution.
In accordance with the provisions of the constitution should be
read with reference to Article 74.
Article 74 says 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 according to such advise. By stating, in
exercise of his functions, it has been made clear that the President is to
act in all his functions only on the advise of council of Ministers. The only
option open to the President is that he can refer back any advise to the
council of Ministers for re-consideration and tendered again, then such
reconsidered advise is binding on the President.
Most importantly, the question whether any advise was given by
council of Minister to the President and if so the nature of such advises
cannot be questioned in any court of law a judicial immunity extended
to all cabinet decisions.
The council of Ministers headed by the Prime Minister is explained
in Article 75.
Any number of Ministers without the Prime Minister is not a council
of Ministers. However, Prime Minister with one cabinet Minister can form
a council of Ministers. If the Prime Minister goes, entire council of
Ministers goes. However, if a Minister resigns, it does not affect the
council of Minister.
Article 75 says that the President appoint the Prime Minister and
on his advise the other Minister. Ministers hold their office during the
pleasure of the President. The council of Ministers is collectively
responsible to the Lok Sabha. The President is to administer the oath of
office and secrecy to the Prime Minister and Ministers in the format given
in the 3rd schedule. A minister who is not a member of either house of
parliament can remain as minister for a maximum period of 6 months
and before the end of this period, he should become a member of either
house failing which he will loose the Ministership. The salaries and
allowances of the ministers are given in 2 nd schedule. Parliament has
been given the powers to determine such salary and allowances by law.
What is Collective Responsibility & Individual Responsibility
Collective Responsibility means that the council of Ministers as a
team is responsible to Lok Sabha for general conduct of affairs of the
43

Government. The decisions of the council of ministers are collective and

joint decisions of its members. No matter whatever be their personal
difference of opinion within the cabinet, once a decision is taken it is
binding on them and they should stand by the decision. Thus, only
alternative before the minister who is not prepared to support and defend
the cabinet decision is to resign and honourable quit the Government.
This is a greatest weapon with the Prime Minister to maintain discipline
among the Ministers. In short, the cabinet functions as a team and they
can sail or sink together.
The council of Ministers is collectively responsible to Lok Sabha,
which implies that the moment council of Ministers looses the confidence
of Lok Sabha, it has to resign. The mode of Lok Sabha expressing lack
of confidence over council of ministers is by passing no confidence
motion or policy cut motion or adjournment motion or by defeating
confidence motion etc. This also implies that the council of ministers is
not responsible to Rajya Sabha. In other words, Rajya Sabha cannot
pass a no-confidence motion.
What is individual responsibly?
Individual Responsibility means that every minister is responsible
for every act of the officers of his department. The minister is
accountable to the parliament. He has to reply to questions, short
duration discussion, calling attention motion, adjournment motion etc. in
parliament. He cannot through the responsibility on his officers or on
another minister. In other words, the minister must answer. If, however,
the minister has taken the decision with the approval of the cabinet then
the principle of collective responsibility would apply and the entire cabinet
is responsible for the decision and cabinet should defend the ministry.
If the minister has taken the decision without the cabinet approval,
the cabinet may or may not support. If the cabinet does not support,
then he has to resign and not the cabinet. Cabinet cannot retain the
minister and at the same time obligate its responsibility.
Article 78 : Constitutional duties for the Prime Minister towards the
President
Not a single article of constitution provides any power to the Prime
Minister. On the other hand, the President has extensive powers
executive, legislative, ordinance making, judicial, emergency etc. Prime
Minister has only one power to appoint his ministers. With this power, he
gets the powers to drop them also. Therefore, the Prime Minister can
appoint, drop and can shuffle and re-shuffle his cabinet. The portfolios
44

can be changed.
on toes.

With this power, Prime Minister keeps his colleagues

While Prime Minister has not been given any explicit powers in the
constitution, there are three constitutional duties of the Prime Minister
towards the President given in Article 78:
To communicate to the President all decisions of the council of
Ministers on the administration of the affairs of the Union and
the proposals of legislature.
To furnish such information relating to administration of the affairs
of the Union and proposals for legislation as the President may
call for.
If the President so require to submit for consideration of any
matter in which a decision has been taken by a minister but has
not been considered by the cabinet.
Therefore, Prime Minister communicates only the decisions and
merely renders advise to the President. President is bound to accept the
decisions of the cabinet because only the council of ministers is
responsible to Lok Sabha. There is no provision in the constitution,
which makes the President responsible to parliament.
Article 77
Under Article 77 of the constitution, all the executive action of the
Government shall be expressed to be taken in the name of President.
The orders and other instruments made and executed in the name of the
President shall be authenticated in such manner as may be specified in
the rules to be made by the President. The validity of an order made or
executed by the President and so authorised cannot be questioned in
any court of law on the ground that it is not an order made or executed
by the President. President of India shall make rules for more
convenient transaction of business rules and allocation of business rules
in the Government of India.
President
President is part of Union executive and part of Union legislature
on the other hand vice-President though part of Union executive is not
part of Union legislatures.
Qualifications:
The President of India should hold following qualifications:
45

1. Citizenship.
2. He should be qualified to be a voter in any parliamentary
constituency. He should not hold any office of profit under the
Government of India or of any sate or any local authority subject
to the control of Government. However, the office of President,
vice-President, governors or minister in Union or State shall not
be construed as office of profit.
President should not be a member of either house of parliament or
State legislature. He is not to hold any office of profit. If a member of
either house of parliament/State legislature is elected as President, he
shall be deemed to have vacated the seat on the date on which he
enters upon his office as President.
Emoluments
President of India is entitled for free office cum residence.
Parliament may by law decide the privileges and other allowances. At
present, the President is entitled to a salary of Rs. 50,000/- per month
(?), Pension of Rajya Sabha. 3 lakhs per annum(?), and Rajya Sabha.
15.26 lakhs per annum (?) for secretariat expenses.
Term
The tenure of the President is 5 years from the date on which he
enters upon the office. Even after expiry of the term he will continue till
his successor enters upon the office. He is eligible for re-election and
can be elected for any number of terms.
In USA, a person cannot be elected more than twice. President
can resign by writing to vice-President. President of India can be
removed by a process of impeachment. Election to fill the vacancy
caused by the expiry of the term should be completed before the term
comes to an end. Election to fill the casual vacancy in the office of
President due to death, removal or resignation or otherwise will have to
be held within six months. During the vacancy vice-President will act as
President. When vice president is appointed as President, he is
administered both of office as full-fledged President and he will no longer
be vice-President. If vice-President is not available for any reason, Chief
Justice of India will act. If Chief Justice of India will also not available,
senior most judge of Supreme Court will take over the charge of
President.
Such
a
situation
arose
in
1969.
Shri V.V. Giri, the then vice-President took charge as a acting President.
He resign on 2nd July, 1969 to contest for president ship, though not
necessary. Chief Justice of India, Shri Hidayatullah, acted as President
under the provisions of Article 70 of the constitution.
46

Privileges and immunities of President

1. The President of India is not answerable in any court of law for
exercise of performance of powers/duties or for any act done or
purported to have done in exercise of such powers and duties.
2. No criminal proceedings can be instituted or continued in any court
of law during the term of his office.
3. No process of arrest or imprisonment of President can be issued
from any court during the terms of his office.
4. No civil proceedings can be instituted against the President during
his term in any court in respect of any act done or purported to
have done in his private capacity whether before or after he had
entered upon his office until a notice of two months given before
taking action.
5. The pay and allowances/emoluments and other secretariat
expenses are charged into the Consolidated Fund of India.
6. The salary, allowances and other privileges cannot be varied to the
disadvantage of the President during the term of his office.
Election of President
President of India is not directly elected by the people instead he is
indirectly elected. Direct election of President is not favour for the
following reasons:
1. The post of President, if directly elected, will become a partisan
office. President is intended to be above party politics.
2. The indirect election makes the President a nominal head.
3. The personalities of high kalivour may not like to involve in
politics. At the same time, the indirect election gives them the
opportunity to enter the fray.
4. Direct election is a costly affair.
President of India is therefore, elected by an electoral college
consisting of elected member of both the houses of parliament and the
elected members of legislative assemblies of all states including Delhi
and Pandicheri. Nominated members of both the houses of parliament
or legislative assemblies of States do not have voting powers.
The election is held in accordance with the system of proportional
representation by means of single transferable vote, the ballet being
secret.
Basis
47

There shall be uniformity in the representation among the State

and parity between the states.
Every elected member of legislative assemblies of a State has, as
many as there are multiples of thousand in the quotient by obtaining by
the division of population of the State by the total elected members of
that assembly.
In other words, value of a vote of MLA is equal to State population
(as per 1971 census) divided by total no. of elected members of that
State assembly multiplied by 1/1000.
i.e Value of an MLA vote =
-

Population (as per 1971 Census)

Total

elected

members

of

1
X

Assembly

1000
Remainder of 500 or more is to be taken as 1 (one).
For Example : Let Population of Punjab as per 1971 census is
20800000 and Total elected members for the Punjab assembly is
208.
i.e Value of an MLA vote =
=

2,08,00,000
-

208

1000

100.

In other words, each MLA of Punjab assembly can cast 100 votes.
208 members can vote a total value of 208 X 100 = 20800.
The no. of votes which each elected member of parliament (MP)
can cast is obtained by dividing the total no. of votes of legislative
assemblies of all states including Delhi and Pandichery obtained under
the above formulae by the total no. of elected members of both the
houses of parliament. If the reminder exceeds 1/2 , it is treated as 1
(one). This secures parity between the votes of MPs and MLAs.
Total Value of MLAs vote of all the
states
including
Delhi
and
Pandicheri
i.e
Value
of
an
MP
48

vote

Total elected members of Lok

Sabha and Rajya Sabha
Supposing, the total no. of votes of elected members of legislative
assemblies of all the State is 75000 and the total no. of elected members
of both the houses of parliament is 750, the value of the vote of an MP is
equal to 75000 divided by 750 i.e equal to 100.
In the system of proportional representation, when two or more
persons contest for a single post, the winning candidate should get more
than 50% vote either in the first count or in the subsequent count. This
50% is called Electoral Quota.
In other words, Electoral Quota is equal to no. of valid votes polled,
divided by (no. of states + 1) and (common +1).
i.e Electoral Quota =
1

No. of valid votes polled

No. of seats +1
Let us say that vote polled is 100 and the vacancy is 1 (one).
i.e Electoral Quota =

100
+
1+1

= 51

Voting pattern
In the single transferable vote system, the voter has a choice of
more than one preference. He can mark his preference in the ballet
papers. The 2nd and other preferences are taken into consideration in 2 nd
and subsequent counts. In the first count, only the first preference votes
are considered. If none of the candidates get Electoral Quota, then the
second count starts. The candidate with least no. of votes eliminated.
His votes are transferred in favour of other candidates according to 2 nd
preference. This process will go on and subsequent preferences are
counted until one candidate gets equal to or more than Electoral Quota.
This process includes re-polled also.
Let us suppose, there are four candidates A, B, C and D. Valid
votes are 15000. Electoral Quota is, therefore, 7501 i.e in first
preference votes 7501 votes should be obtained for being declared as
President. However, let us say, the voting pattern is as follows:
49

1st preference
A
5250
B
4800
C
2700
D
2250
Total
15000

2nd preference
+ 300
5550
+ 1050 5850
+ 900
3600

3rd preference
+ 1700 7250
+ 1900 7750

No one has got the Electoral Quota namely 7501 in first

preference. D with least number of votes is out of race and now his 2 nd
preference vote will be transferred to the rest. Let us so, the voting
pattern will be as shown in table and as follows:
A = 300, B = 5850 and C = 900. These votes are added to the
respective candidates and the total would be A = 5550, B = 5850 and
C = 3600. Even now no one has got the Electoral Quota namely 7501.
Now C with least number of votes is out of race. His 3 rd preference votes
is now transferred to A & B and may be as shown in table and as follows:
A = 1700, B = 1900. Adding these votes to A and B respectively.
The voting pattern would be A = 5500 + 1700 = 7250 and
B = 5850 + 1900 = 7750.
Thus, B having got more than Electoral Quota and also the highest,
B is declared elected as President in spite of the fact, that B has got less
number of first preference votes than A.
The Supreme Court has held that only such persons who are
elected members of both the houses of parliament and legislative
assemblies of the State on the date of election to till the vacancy caused
by the expiry of the term of the President will be entitled to cast their vote
at the election. Therefore, the election cannot be challenged on the
ground of incomplete Electoral College due to dissolution of legislative
assemblies.
In 1969, Shri V.V. Giri was elected after elimination of Shri C.D.
Desmukh in 1st count and then Nellam Sanjeev Reddy in 2nd count.
Election can be unopposed also.
Sanjeev Reddy was elected unopposed.

In 1977, when Shri Neelam

Article 71 says that the dispute relating to presidential election shall

be decided by the Supreme Court and its decision shall be final.
However, no action of the President shall be declared invalid by the
court. If it invalidates the election on the ground of any violation of the
presidential election act, the court will neither look into the suitability of
50

the person elected as the President because this is to be decided by the

members of the Electoral College and not for the judiciary.
Oath of Affirmation of President
The chief justice of India or in his absence the senior most judge of
Supreme Court, shall administer the oath of office to the President.
President of India takes oath to preserve protect and defend the
constitution.
Impeachment of President [very important]
The President of India can be removed from office only for violation
of constitution by a process of impeachment.
The charges against the President shall be preferred in either
house of parliament in the form of a proposal contained in a resolution to
be moved after 14 days notice, in writing, signed by not less than th of
the total number of members of that house declaring their intention to
move the President. Such a resolution shall be passed by a majority of
not less than of the total membership of that house. The resolution so
passed, shall be transferred to the other house.
The other house shall investigate the charge or caused the
charges to be investigated. The President shall have the right to defend
or be defended during such investigation.
If as a result of the investigation, the resolution is passed by a
majority of not less than 2/3 rd of the total membership of the 2nd house
declaring that the charges preferred against the President have been
sustained, then such a resolution shall have the effect of removing the
President from his office from the date on which the said resolution is
passed.
Deficiency in the process
1. The term violation of constitution has not been defined, though
Dr. Ambedkar has cited the Presidents refusal to summon the
parliament on the advise of council of Minister shall constitute a
violation of constitution.
2. The elected members of legislative assemblies of states and
Union territories of Delhi and Pondichery have no role in the
process of impeachment.
3. Contrary to the above, the nominated members of Lok Sabha
and Rajya Sabha have the right to delivery an vote during the
51

process of impeachment though they are not the members of

electoral college for the election of President.
4. The constitution does not provide time to be taken for the
investigation.
5. There is no provision in the constitution for keeping the
President under suspension.
Vice-President
Vice President is the ex-officio chairman of Rajya Sabha and shall
not hold any other office of profit. However, when he acts as President,
he shall not perform the duties of chairman of Rajya Sabha.
In the even of any occurrence of any vacancy in the presidentship
by reason of his death, resignation or removal or otherwise, he shall act
as President until the new President enters upon the office. Such
election should be held within six months from the date of vacancy. In
other words, vice President can act as President only for six months
continuously. However, when the President is unable to discharge his
functions because of illness or absence or due to any other cause, the
vice President shall discharge his functions until the President resume
his duty. There is no mechanism in the constitution to identify and to
declare such absence of President unless President himself declares.
Vice President shall during the period of his acting as President,
shall have all powers and immunities of the President and shall be
entitled for emoluments provided for President.
In the USA, the vacancy created by the death or resignation of the
President is filled by the vice President and he will serve as President for
the remaining term. Such is not the case in India because in India the
electoral college of vice President is different from that of President.
Qualifications for a candidate to become a vice President:
1.
2.
3.
4.

Citizenship;
Completed 35 years of age;
Qualifying for election as Member of Parliament Rajya Sabha;
Not to hold office of profit under Government of India or any
State or any local authority. However, the office of vice
President, Office of Governor, Ministers shall not be construed
as office of profit.

The vice President is elected by an electoral college consisting of

members of both the houses of parliament in accordance with the
system proportionate representation by means of single transferable
vote, the ballet being secret.
52

The term of his office is 5 years. He may resign by writing to President.

Removal of Vice President
He is removed from office by a resolution of Rajya Sabha passed
by a majority of all the then members of the house (absolute majority)
and as agreed to (simple majority) by the Lok Sabha. However, 14 days
notice should be given before moving the resolution. No initial support of
members is stipulated.
Constitution does not provide any function to vice President, as
deputy to the President. His only function is as chairman Rajya Sabha.
The nomenclature of vice President gets justify only when the office of
President gets vacant by reason of death, resignation, removal or for any
other cause. However, during such period, he is no longer vice
President, instead he is a full-fledged President entitled to all powers,
immunity, privileges enjoyed with the President.
Therefore, the
designation of vice President is basically a misnomer because he is for
all purposes chairman Rajya Sabha and never assist President. When
he becomes President, he is full-fledged President and we can never call
him vice President.
Presidential Power
Power of the President can be classified under the following heads:
Executive Powers;
Diplomatic Powers;
Military Powers;
Legislative Powers;
Ordinance Making Powers;
Financial Powers;
Judicial Powers;
Emergency Powers; and
Miscellaneous Powers.
Executive Powers
Article 53 of the constitution vests the executive power of the Union
with the President. The executive power of the Union extends to the
method on which parliament has power to make law and also to the
exercise of such rights authority and jurisdiction as are exercisable by the
Government of India by virtue of any treaty or agreement.

53

Article 77 provides that all executive action of the Union shall be

expressed to be taken in the name of the President. He shall make rules
for the purpose of authentication of orders and other instruments made
and executed in his name and also he is to make rules for convenient
transaction of business and for allocation of business among the
Ministers.
Parliament has the powers to appoint Prime Minister other
Ministers of the Union, Attorney General, CAG, Judges of High Court and
Supreme Court, Governors of the State, Chief Election Commission,
other members of Election Commission, Lt. Governors of the Union
Territories, Chairman and members of constitutional bodies like UPSC,
Finance Commission, Official Language Commission, National
Commission for Supreme Court and Scheduled Tribe etc. In making
some of the appointments, President is required to consult the persons
other than his Ministers. For example, for appointment of judges of
Supreme Court, he is required to consult chief justice of India.
President has also the power to remove his Ministers individually,
Attorney General, Governor of the state, Chairman and members of
UPSC (on the report of the Supreme Court), Judges of High
Court/Supreme Court, CAG, Chief Election Commissioner on an address
of parliament.
In the case of inferior officers, constitution does not envisage, spoil
system like in USA under which 20% of the Federal Service are filled in
by President as a reward for party allegiance (loyalty). On the other
hand, Indian constitution has made it obligatory for the President to
consult UPSC in matters of appointment and removal. UPSC is a
subject of legislation for Union parliament.
President is the administrator of all Union Territories and tribal
areas.
Diplomatic Power : The task of negotiating treaties and agreement with
other countries subject to ratification by parliament belongs to the
President. President represents India in international affairs. He has the
powers to appoint Indian representatives to other countries and also to
receive foreign diplomats.
Military Powers : President is the supreme command of the defence
forces of the country. He has the power to declare war and peace. He
appoints the chiefs of Army Nave and Air forces. However, this power
shall be regulated by law. In addition, certain acts, require authority of
law.
For example, sanction of money for raising training and
maintenance of Defence forces.
54

Legislative Powers :
1. Parliament consists of President, Lok Sabha and Rajya Sabha.
This is where the constitution departs from the principle of
separation of powers between Executive and Legislatures.
Though, the constitution has created independent judiciary, it
has no provision for independent legislature. The provisions are
so drawn that the executive is constantly dependent on the
legislature and both of them frame the policy and execute them.
2. President is to summon each house of parliament, without
leaving an internal of not more than 6 months between the last
seating in one session and 1st seating in the next session.
3. President may prorogue the houses or either house.
4. President can dissolve Lok Sabha. He cannot dissolve Rajya
Sabha.
5. At the commencement of the first session after each General
Election to Lok Sabha and at the commencement of the 1 st
session of each year, the President shall address both the
houses assembled together. He outlines the general policy and
programmes of the Government. This is similar to speech from
the thrown in England.
6. In addition, President has the right to address any time either
house or both the houses together and for that purpose he can
require the attendance of the members.
7. He can send massages to either with regard to the bill pending
in the parliament or otherwise. The house should consider the
matter with the utmost urgency. There is no precedent with
regard to this provision. Therefore, whether the President has
discretion to send massage in consistent with cabinet policy, to
the parliament is not clear. Non-availability of this discretion
may not justify the presence of this article.
8. Prior recommendation of the President is necessary for
introduction of some bill to the parliament like money bills,
financial bill, Finance Bill, Bill for formation of State, Ultration of
Boundary, State Bills which impose restriction on the freedom of
trade etc. On not following the procedure, President can
eventually refuse to give assent to the bill. For example, R
venkatraman refused to give assent to the bill of pensionary
benefits to the MPs completing only one year of membership,
for the reason that the bill did not have his recommendation at
the time of introduction of the bill.
In addition President is competent to appoint 12 members in Rajya
Sabha from among the persons who have distinguish to themselves in
the field of literature or science and social service. He can also nominate
55

two anglo Indian members to Lok Sabha. If he satisfy that this

community is not adequately represented in that house.
If there is a dispute between Lok Sabha and Rajya Sabha, over a
non money bill, the President is competent to convene joint session of
both the houses of parliament to resolve the dispute.
No bill can become a law without the ascent of the President.
When a bill is passed by both the houses of parliament it is presented to
President for his assent. He has three options:
1. He can declare his assent in which case the bill becomes an
act.
2. He may declare that he withholds his assent to the bill.
3. He may in the case of bills other than money bill and
constitutional amendment bills, return the bill for reconsideration
for the houses.
The President may declare withholding of ascent in three cases:
1. In the case of a private members bill, on the advise of council of
Ministers.
2. In the case of official bill, where after the passage of the bill and
before the ascent, new council of ministers advising the
President to withhold his assent.
3. In the case of bills which do not follow necessary procedure or
which is beyond the competence of the legislature. For
example, the PEPSU appropriation bill was submitted to
President for assent on 8th March, 1954 while President's Rule
was revoked on 07.03.1954, therefore, the Government advised
the President to withhold the assent.
Similarly, Shri
Venkatraman did not give his assent for the pension bill of MP's
simply because the bill did not have his recommendation before
introduction in the parliament. This power of the President is
called absolute Vito.
In the case of bills which the President returned to parliament for
reconsideration and the bill passed again, it is presented to President
and he has to give his assent. This is called suspense Vito.
Another option available with the President is to pocket the bill.
Constitution does not provide any time limit for the President to giv his
assent taking advantage of this provision rather lack of provision,
President may sit over the bill without decision i.e. pocket the bill. This is
called pocket Vito. President Jail Singh Pocketed the Indian Post Office
amendment bill 1986.
56

However, pocket Vito cannot be exercised in the case of

constitutional amendment bill.
Ordinance making power of the President [Very important]
This is the most important power of the President. This is unique in
the sense that executive exercises the powers of the legislature contrary
to the principles of separation of powers. President has this power to
legislate by ordinance at a time when it is not possible to have a
parliamentary enactment on the subject, immediately. In other words, if
at any time when both the houses of parliament are not in session and
that the President is satisfied that circumstance exist which making
necessary to take immediate action, he may issue such ordinance as the
circumstances demand. The ordinance shall have the same force of law
made by parliament. The ordinance must be laid before both the houses
of parliament and shall cease to operate at the expiry of six weeks from
the date of reassembly of parliament unless it is disapproved by
parliament earlier. President can withdraw ordinance at any time.
Ordinance making powers of the President is co-terminus with the
legislative powers of the parliament. T may relate to any subject on
which parliament has the powers to legislate. This also implies that an
ordinance is void if it violates Fundamental Rights. This has been made
clear by adding ordinance within the definition of law in article 13. The
ordinance making power is exercised by President on his own
satisfaction. The court cannot question on the subjective satisfaction of
the President or adequacy of reasons.
An ordinance can be issued only when both the houses of
parliament are not in session. In follows, that an ordinance can be issued
when one house is in session and the other is prorogued because law
cannot be made by one house alone.
Except India, no other country in the world has vested the
executive with the powers to legislate. This is primarily intended to meet
the unforeseen serious situations arising when the parliament is not in
session.
This power has been greatly misused. In Wadhwa case, Supreme
Court found that Bihar had promulgated 256 ordinances between 1967
and 1981 of which 69 were re-promulgated for 12 times. Supreme Court
has held this as fraud on the constitution.
Parliamentary Safeguard
Whenever the Government seeks to replace an ordinance with a
bill, when explanatory statement should accompany the bill explaining
57

the grounds and urgency for the ordinance. Such a statement is only for
information and no discussion takes on it.
Judicial power of the President [Important]
Pardoning power
The object of conferring judicial power upon the executive is to
correct possible judicial errors. The law commission noted that the
sentences may require re-consideration because of:
1. Facts not placed before the court.
2. Facts placed before the court but not in the proper manner.
3. Acts discovered after passing the sentence.
To correct the human error, the President has been given the
powers under Article 72. He has the powers to grant :
1.
2.
3.
4.

Pardon;
Commutation:
Respite;
Reprieve.

The sentence of any person convicted of any offence :

1. By court martial;
2. Any offence against any law relating to any matter to which the
executive powers of the Union intends;
3. In all cases in which death sentence is awarded.
No human system can be free from imperfection therefore; it is
necessary to have the judicial powers to correct the possible human
error.
A Pardon completely absolves the offender from all sentences and
punishments/disqualification and places him in the same position as if he
never committed any offence.
Commutation is exchange of one punishment for the other i.e.
substitution of one form of punishment for another of lighter character i.e.
Death sentence can be commuted to the life sentence;
Life sentence to rigorous imprisonment;
Rigorous imprisonment to simple imprisonment;
Simple imprisonment to fine etc.
only one below is permissible.
58

Remission is the reduction of amount of sentence without

changing the character. For example, for theft, IPC prescribes 6 months
Rigorous imprisonment to 3 years Rigorous imprisonment. This 3 years
Rigorous imprisonment can be reduced to 6 months Rigorous
imprisonment - without changing the character.
Respite means award of lesser penalty not provided in Indian
Penal Code (IPC) on special grounds. For example, a pregnant lady is
caught for theft. She is awarded simple imprisonment while IPC
demands rigorous imprisonment. Here the character changes.
Reprieve means temporary suspension of death sentence pending
proceedings for pardon or commutation.
In Kehar Singh's case the Supreme Court had laid down following
principle:
1. The convict has no right to insist on oral hearing.
2. No guidelines need be laid down by the Supreme Court for the
exercise of the power.
3. The power is to be exercised by the President on the advise of
the council of Ministers.
4. The President can go into merits of the case and take a different
view.
5. Exercise of the power by the President is not open to Judicial
Review.
Miscellaneous powers
1. The President may take advice from Supreme Court.
2. He can authorise the use of Hindi in addition to English for such
purposes as he thinks fit and also determined the pace of
progressive use of Hindi.
3. The President shall make Rules and Regulations determining
the number of members of UPSC, their tenure, service
conditions etc.
4. He can issue directions to the Stage Government.
As a part of financial powers, the contingency fund of India
consolidated fund and public fund are at his disposal.
Emergency Powers of the President
Federal Government can always be week because, it involves
division of powers. Therefore, the federal constitutions always provide
59

assumption of larger powers whenever unified action is needed for

meeting an emergent situation.
Our constitution provides for 3 types of emergencies:
1. An emergency due to war, external agrarian or armed rebellion
which can be referred to as National Emergency under Article
352 of the constitution.
2. Failure of constitutional machinery in states otherwise called
State emergency or constitutional emergency or President's
Rule under Article 356.
3. Financial emergency under Article 360.
National Emergency (Article 352)
If the President of India is satisfied that a grave emergency exist
whereby the security of India is threatened by war or external aggression
or armed rebellion then he may proclaim emergency in respect of whole
or part of India. This proclamation can be revoked or varied by
President. Actual occurrence of war, external aggression or armed
rebellion is not essential instead imminent danger of such occasion is
enough.
The proclamation can be issued by the President only when the
cabinet i.e. the Prime Minister and Ministers of cabinet rank
communicate the decision in writing. In other words, emergency can be
proclaimed only on the written concurrence of the cabinet and not only
on the advice of the Prime Minister, as was done by Mrs. Indira Gandhi
in June 1975.
The proclamation should be laid before each house of parliament
and should be approved within one month. If Lok Sabha is dissolved at
the time of proclamation, Rajya Sabha should approve it first and Lok
Sabha should approve it within 30 days from the date of reassembly after
general elections. The resolution should be passed by both the houses
of parliament, by special majority namely absolute majority plus 2/3 rd
majority of the members sitting and voting. The proclamation once
approved by parliament shall remain in force for six months. For further
continuance of emergency, approval of parliament is required every 6
months. If Lok Sabha is dissolved during this period of 6 months without
approving further extension, Rajya Sabha should approve it first and Lok
Sabha will approve it within 30 days from the date of re-assembling after
general election. Here again the resolution should by pass by special
majority.

60

President shall revoke the proclamation if Lok Sabha passes the

resolution of disapproval. For this purpose, Lok Sabha can be convene,
if 1/10th of the total members of Lok Sabha request for the session. The
notice should be given to the President, if the house is not in session and
to the speaker, if the house is in session. The session should be
convened within 14 days from the date of receipt of notice by the
President/Speaker.
Effect of emergency
1. The executive power of the Union extends to giving directions to
any State as to the manner in which the executive power of the
State is to be exercised.
2. Union parliament is empowered to make a law on the subjects
listed in the State list. The distribution of legislative powers in
the seventh schedule is fundamentally charged during
emergency. Law making powers of the State is not suspended
instead the State can make law but it is subject to the overriding
powers of parliament.
3. Centre can alter the financial arrangement between the Union
and the State.
4. The President may extend the term of Lok Sabha by one year
each time upto a period not exceeding 6 months after the expiry
of proclamation.
5. Article 19 i.e. seven freedoms stand automatically suspended, if
the emergency is on the ground of war, or external aggression.
6. The right to enforce Fundamental Right i.e. Article 32 can be by
a Presidential proclamation, suspended in respect of all
Fundamental Rights except Article 20 and 21.
Article 352, National Emergency had been invoked 3 times so far.
This was first invoked in October, 1962 when China attacked India is
continued till January, 1968. As a result the 2 nd invocation of Article 352
was not needed at the time of war with Pakistan in August September,
1965. For the 2nd time, the emergency was declared in December, 1971
when we had another war with Pakistan. In June, 1975, for the 3 rd time
national emergency was declared by Mrs. Gandhi and this was invoked
till March, 1977.
Constitutional Emergency/Presidents Rule/State Emergency
(Article 356)
A unitary, non democratic (not anti democratic) non-federal feature
of Indian constitution is a solution in the hands of the Union to deal with
abnormal situations in the provinces. In a democratic Government with
written constitution such situation should rarely occur.
61

Article 356 lays down that if the President of India on receipt of the
report of the governor (acting on discretion, and not on the advice of
council of Ministers) of a State or otherwise is satisfy that a situation has
arisen in which the Government of the State cannot be carried on in
accordance with issue a proclamation to that effect.
He will assume all functions of the Government of the states and all
the powers vested in Governor or any other authority of the State other
than the legislature.
He will declare that the powers of the legislature of the State shall
be exercisable by or under the authority of the parliament.
For giving effect to such proclamation, he may make incidental and
consequential provisions. However, he will not assume any of the
powers vested in the High Court.
The proclamation can be revoked or varied by a subsequent
proclamation. Every proclamation shall be valid for 2 months unless it
has been approved by resolution of both the houses of parliament by
simple majority. If Lok Sabha is in a State of dissolution, Rajya Sabha
should approve it within the period of 2 months and Lok Sabha will
approve within 30 days from the date of re-assembly after general
elections.
The approved proclamation shall operate for six months from the
date of issue of proclamation. This can be extended for further six
months.
The effect of proclamation does not have any barring on the
Fundamental Rights.
Article 356 becomes necessity in the following circumstances:
1. When after the election, no single party or group is in a position
to form the Government.
2. When a Ministry resigns after defeating the legislature and no
other Ministry can at once be formed.
3. When the Stage Government fails to carry out the directions of
the Union Government.
It is interesting to note that Article 356 does not provide for
suspended animation of legislative assemble or what is called half
emergency. It is left to the President to dissolve the assembly or
suspend it. If the assembly is dissolved, it is full State emergency. If the
assembly is under the suspension, then it is half emergency.
62

Financial Emergency (Article 360)

Article 360 provides that if the President is satisfied that a situation
has arisen whereby the financial stability or credit of the country or part of
the country is threatened, he may by a proclamation make a declaration
to that effect that the proclamation of Financial emergency shall cease to
be in operation at the expiry of 2 months unless it has been approved by
both the houses of parliament. Such a proclamation may be revoked or
varied by the President by subsequent proclamation. If Lok Sabha is
dissolved during this 2 months, Rajya Sabha will approve it first and Lok
Sabha will approve it within 30 days of its re-assembly after General
Election.
Effects
Executive power of the Union shall extended to giving direction to
any State to observe to such standards of Financial Propriety as
specified in the directions and as deemed necessary for maintaining
Financial Stability and credit of the State. Any such directions may
include a provision for deduction of salaries and allowances of all or any
class of persons serving in the State including judges of High
Court/Supreme Court. It may require that all money bills and financial
bills are to be reserved for consideration of President after having been
passed by the State legislature.
In spite of the fact that we had faced financial crisis, we did not
invoked financial emergency as yet. This is because, if we declare that
we are bankrupt, the other countries may not issue loans or aids, since
our capacity to repay would be in doubt. But, without declaring financial
emergency, we had taken number of measures which are likely to be
taken when Financial emergency is invoked like withholding of certain
due amounts of the employees, deposit of DA arrears in provident fund,
compulsory deposit scheme.
The language of Article 360 is delightfully vague. The article does
not mention about the time limit, which implies that once the financial
emergency is proclaimed, it would go on forever. Instead of dealing with
a situation of emergency, it may only lead to the emergence of the
situation of greater emergency. Far from creating confidence, the
declaration will lower our credit worthiness and create panic. This itself
will bring final instability. What is required is expert analysis; cool
thinking and workable plan and not panicky dealings.
Union Legislature
63

It consists of President, Lok Sabha and Rajya Sabha. Though,

President of India is not a member of either house, he is integral part of
parliament and performs set and functions relating to its proceedings.
US President is not part of the legislatures.
Indian constitution envisages parliamentary form of Government in which
there is a fusion of executive and legislature. But unlike Britain,
parliament is not supreme in India. We have checks and balances for
each wing of the State. We cannot call legislature supreme because we
cannot easily amend the Fundamental Rights. It cannot discuss about
the conduct of the judges except upon a motion for their removal.
Executive is not supreme because it is always under the mercy of
legislature. Judiciary is not supreme because 9 th schedule, for instance,
is beyond judicial scrutiny so also the nature of advises tendered by
council of Ministers to President. We cannot call constitution supreme
since this has been amended over 90 times in 51 years. Therefore, our
constitution is so balanced that each organ is supreme in its own sphere.
Rajya Sabha
Rajya Sabha is house of states constituted with the maximum
membership of 250 of whom, 12 are nominated and 238 are the
representatives from the states and Union territory. At present Rajya
Sabha has the strength of 245 members including 12 nominated. The
members are elected by the members of legislative assemblies of the
States and Union Territories in accordance with the system of
proportional representation by single transferable vote. The allocation of
seats has been given in the 4 th schedule. There is no reservation for
Supreme Court and Scheduled Tribe. 12 members are nominated by the
President on the advice of council of Ministers and such members are
chosen from among the persons having special knowledge or experience
in the field of science, literature or social service.
Vice President is ex-officio chairman of Rajya Sabha and the Rajya
Sabha will also elect a member as Dy Chairman to act as presiding
officer in the absence of chairman or when chairman is acting as
President. If both are absent, such member as decided by Rajya Sabha
will preside over the seating.
Rajya Sabha is a permanent body and is not subjected to
dissolution. However rd of the members retire every two years making
the term of each member as 6 years except in the case of casual
vacancy for which the term would be reminder of the tenure.
The qualifications for being a member of Rajya Sabha are :
64

1. Citizenship.
2. 30 years of age.
3. Should be an elector in the parliamentary constitution of the
State which he represents.
4. He should not hold any office of profit and should not be
undischard insolvent.
He will forfeit his membership if he becomes of a member of Lok
Sabha or of any State legislature.
Utility of Rajya Sabha
Though Rajya Sabha is a permanent body, in respect of powers,
which enjoys an inferior position compare to Lok Sabha. Many bills and
finance bills cannot be introduced in Rajya Sabha. It has no powers to
reject a money bill.
Rajya Sabha can only delay the passage for a maximum period of
14 days. No confidence motion cannot be moved in Rajya Sabha. Even
in the case of ordinary bills, if the dead lock is created between two
houses and the joint session is held by virtue of its numeric strength, the
will of Lok Sabha will prevail over Rajya Sabha.
Neverthless, Rajya Sabha is desirable fo the following reasons:
1. Senior politicians and statesman might get an access into the
council of Ministers through Rajya Sabha without undergoing
the ordeal of election so that their experience and talent are not
lost to the country.
2. Rajya Sabha acts as a speed breaker over Lok Sabha which
being a popular house is always tempted to act hurriedly to fulfil
public aspirations. Rajya Sabha puts a break so that an
opportunity is given to delay to reconsider and if necessary to
revise the decision taken in the heat of momentary pressure.
3. Rajya Sabha is a federal chamber with representations of the
states, which is a mandatory provision for any federal
constitution.
Constitution has provided two special privileges for Rajya Sabha:
1. Under Article 249 of the constitution, Rajya Sabha by passing a
resolution by 2/3 rd majority of the members by seating and
voting can authorise parliament to make a law on any State
subject in national interest. This resolution is valid for one year
and can be renewed by passing similar resolution by similar
majority.
65

2. Rajya Sabha can pass a resolution by 2/3 rd majority of member

seating and voting declaring that it is necessary and expedient
in the national interest to create All India Services.
Lok Sabha
Lok Sabha is a popular house directly elected by the people under
universal adult suffrage of the citizens of 18 years and above through
territorial constitution in the entire country. The original strength of Lok
Sabha is 550/545 of which 530/525 are elected from the State and 20
from Union Territories. Two members are nominated by the President
from the Anglo Indian community provided there is no adequate
representation for them in Lok Sabha. At present Lok Sabha has 543
members and two members of Anglo Indian community taking to the total
of 545 including speaker.
Qualification
1. Citizenship.
2. 25 years of age.
3. He should subscribe an oath according to the proforma
prescribed by the election commission.
4. He should be an elector in any of the parliamentary constituency
in India.
A person shall be disqualified for being chosen an MP or being an
MP on the following grounds:
1.

Holding an office of profit under the Union or State except as

exempted by parliament by law.
2. Unsound mind.
3. Un-discharged insolvent.
4. Relinquishment of citizenship or voluntary acquisition of
citizenship of the foreign State.
5. Corrupt electoral practice.
6. Convicted for an offence resulting in imprisonment for two or
more years.
7. Failure to lodge an account for election expenses.
8. Dismissal from Government service for corruption or disloyalty.
9. Having an interest or share in the contract for supply of goods
or execution of any work of the Government.
10. Any conviction and dowry prohibition act or protection of civil
right act or essential commodities act or FERA now FEMA.
Vacancy
66

1. No person can be a member of both the houses of parliament at

the same time or either house of parliament and State
assembly. For example, if a Rajya Sabha MP is elected a
member of Lok Sabha, he has to resign his Rajya Sabha seat
within 10 days failing which on the 11th day his Rajya Sabha seat
will be declared vacant.
2. A member can resign his seat by writing to speaker or chairman.
The speaker or chairman has to verify the resignation and then
accept it. In other words, whether the resignation was tendered
under compulsion has to be verified.
3. A member can be expelled by the house in the event of which
the seat is declared vacant.
4. If a member absence himself from all the meetings of the house
continuous for 60 days, the house may declare the seat vacant,
by passing a resolution to this effect.
Disqualification under anti defection law [Most Immediate]
52nd amendment act, 1985 amended Article 101, 102, 190 and 191
and inserted 10th schedule indicating the grounds of disqualification on
defection.
Following are the circumstances under which the disqualification
will visit a member
1. When he voluntarily gives up the membership of a party in
which a ticket he was elected.
2. Voting against or abstaining from voting in the house against
any direction of his party without prior permission unless the
offence is condoned within 15 days.
3. If an independent member joins any political party.
4. If a nominated member joins any political party after 6 months
from the date of assumption.
Following exceptions have been provided in the law :
1. If a member goes out as a result of merger of original party with
another provided 2/3 rd of the total members agrees to the
merger.
2. If a member goes out of the party as a result of split in the
original party provided such group has not less than rd of the
total membership of that party.
3. If a member after being elected as presiding officer gives up the
membership of the party to which he belong or he does not
rejoin that party or he becomes member of another party.
67

If any question arises whether the anti-defection law proceeding

are valid or not the decision of the speaker is final. The proceeding of
anti-defection law are treated as internal. Proceedings of the house and
its validity or the decision of the speaker cannot be questioned in any
court of law. (Supreme Court has restored the judicial review and this
proviso which precludes (prohibits) judicial review has been declared
ultra virus by the speaker)
Officers of Lok Sabha
Speaker and Dy. Speaker is the officer of Lok Sabha. Both are
members of the house. Even though they belong to the political party
they may resign their membership from the respective parties to maintain
dignity and neutrality of the office. The voluntary giving up of the
membership of the parts does not attract the provision of anti-defection
law. They continue in office so long they are members of the house.
Speaker can resign by writing to Dy. Speaker and vice-versa. Speaker
and Dy Speaker are the creatures of constitution. Both are independent
in their own spheres. Neither is subordinate to the others.
Powers
Speaker is the chief officer of the house. He presides over the
seating of the Lok Sabha. He maintains discipline dignity and decorum
of the house. He can adjourn the house and re-summon of after
adjourned. He can name the member. He can suspend the member.
He can asked the members to withdraw from the house. Speaker is not
expected to speak. If he speaks, it is an order to be complied with
implicitly. His decision on the regulation of the proceeding cannot be
questioned in any court of law. He is the authority who certifies whether
the bill is money bill or not, and this decision is immune from Judicial
scrutiny. He is to certify that the bill has been passed by the house. He
presides over the joint session of both the houses to resolve the dispute
over a non-money bill. He is the authority who decides the proceedings
under anti-defection law and his decision under anti defection law are
final and beyond judicial scrutiny (Supreme Court has restored judicial
review recently)
Speaker has acquired a unique position in the constitution in the
sense that he continues in office even after desolation of Lok Sabha till
appointment of pro-tem speaker in the 1 st meeting of the re-constituted
house. He works as a channel of communication between President and
the house. He is competent to correct the patent errors in a bill after it
has been passed by the house. He makes obituary references and
delivers validitary addresses on the expiry of the term of the house. He
maintains parliamentary proceeding and records. He makes adequate
68

arrangements for security of the MPs staff and property of the house. He
is the authority who can accept or reject a resignation of MP. He
allocates time for different kind of business in the house. He interprets
the provision of the constitution and rules of the house.
He puts the motions to vote and announces the result in case of
tie, he exercises his costing vote. He adjourns the house in the absence
of quorum. He convenes secret seating at the request of the leaders of
the house. He allows a member to speak in his mother tongue. He is
the authority who can expunge un-parliamentary and irrelevant
expressions. He is the authority who can allow a member to be arrested
or allow issue of warrant.
In short, within the four walls of Lok Sabha he is a monarch.
Privilages of MP and Privilages of parliamentary body
Removal of speaker
The speaker may be removed from office by a resolution passed by
the majority of the then members of the Lok Sabha. In other words,
subject to quorum, number of members present divided by two plus one
simple majority. The resolution should be passed after giving 14 days
notice. When the discussion on the motion of his removal takes place,
speaker will not preside over the seating.
Privileges of parliament
Article 19 guarantees freedom of speech and expression to every
citizen subject to the restriction given in the provision of article 19. The
right of an MP under Article 105 is independent and not subjected to any
restriction.
There shall be full freedom of speech and expression for every
member of parliament (MP) within four walls of the house subject to the
provisions of the constitution and subject to the Rules of the procedure of
the house. No member is liable to any proceedings in any court in
respect of anything said or any vote given by him in parliament or in the
proceedings of the committee.
Similarly, no person shall be liable in respect of publication of any
report or paper or proceedings. This freedom is available to every
person who, by virtue of constitution has the right to speak or otherwise
take part in the proceedings of the parliament or in any committee.

69

This article gives absolute immunity from judiciary to every MP for

anything said or any vote given within the house or in the courts of
proceedings of the committee. What is protected here is the speech
within the house. Outside the house, the member is as good as any
other citizen and if a member repeats or publishes a deformatory speech
made by him within the house, outside, he does this on his own
responsibility and is liable for prosecution under section 500 of IPC for
deformation.
This freedom enjoyed by an MP is, of course, subject to two
provision:
1. Orders regulating the proceeding of parliament for which
speaker is the authority.
2. Subject to other provisions of the constitution.
The other provision is Article 121, which prohibits any discussion
about the conduct of the judge of Supreme Court/High Court except
upon a discussion for their removal. Rules of Lok Sabha procedure also
prohibit the use of un-parliamentary language.
A member cannot be arrested or imprisoned on a civil proceedings
within a period of 40 days after the session of parliament. This privilege
is available only against civil proceedings and not against criminal
proceedings or contempt proceeding or preventive detention.
The parliament has the right to exclude the strangers from its
proceedings and to hold secret sessions. It has also the powers to
prohibit to the publication of its report and proceedings. Parliament has
the right to regulate its internal proceedings. The validity of such
proceeding cannot be questioned in any court of law.
The house has the powers to expel the member from the house for
breach of privileges and the house has the power to punish a person
whether a member or a stranger for contempt of parliament or breach of
privilege. This power is the keystone of parliamentary privileges. In
1977, Lok Sabha had created a history by expelling Mrs. Indira Gandhi
from the house and jailed her till the house is prorogue for contempt of
parliament shown by her by feeding wrong information with regard to a
starred question on Maruthi Udyog Ltd. when she was the Prime
Minister. Along with her jail were :
Dr. D sen the then Director CBI, and Shri R.K. Dhawan the then
special assistant to Prime Minister.

70

How a bill becomes an act?

Bill is a legislative proposal. There are two areas where action is
initiated for a bill to become an act :
1. Action in the administrative Ministry [Important for MOP}
2. Action in parliament [Important for Constitution}
Action in the Ministry i.e. formulation of Legislative policy
The act is a formal expression of legislative policy. Therefore the
administrative Ministry should decide the policy to be implemented and
the need for an act keeping in view political economic social and
administrative consideration. This will be decided at the level of JS and
above in the Ministry.
Once the need for legislation is decided and policy on which the
law is proposed is determine, it will be referred to Ministry of law for its
advice on the feasibility and desirability of the proposed legislation as
well as competence of parliament, impact on other laws and the broad
linc on which the law should be made out. The advice at this stage is
quite general without going into the details of law.
The legislative proposal on receipt from law Ministry with advice
will be examine by the Ministry and if the law is still required, the
proposal will be put up before the minister in charge for the approval.
Under the transaction of business rule, every legislative proposal
should be approved by the cabinet. The administrative Ministry will
prepare a self contained summery setting out the facts of the case and
the legislative proposal and the cabinet note will be circulated among all
ministries concerned with the subject and also Ministry of law for their
comments. This will be done after the cabinet note will be approved with
Minister in charge.
After the comments of various Ministries are received, the cabinet
notes are sent to cabinet secretariat for getting approval of the cabinet.
Cabinet may consider the proposal either in the full-fledged cabinet
meetings or through cabinet committees or by circulation.
Once this is approved by cabinet the approval will
communicated to the administrative Ministry.

be

On receipt of cabinet approval the Ministry prepares an O.M. with

full back ground of the case which necessitated the legislation and asks
the law Ministry to draw the bill.
71

Drafting of the bill is a very important stage calling for closed

Coordination between the administrative Ministry and Ministry of Law.
This may involve weeks and months in consultation with various
departments. The consultation will continue till a perfect bill is prepared.
When the bill is finalised, it should be approved by Minister in
charge of the administrative Ministry. Ministry will prepare what is called
SOR Statement of object and reasons to be attached to the bill. This
statement is to be signed by the Minister. This is the preamble of the bill.
There are a few bills, which require recommendation of the
President before introduction in parliament. For example, money bill,
financial bill, Finance bill, Bill for formation of State, change of name of
State, territory of State etc. If the proposed bill falls in any one of the
above categories, the ministry will submit a self contained note with the
summery sent to the cabinet, cabinet decision, proposed bill, advise of
the law Ministry etc to the President. President gives his sanction on file.
On receipt of sanction of President, Minister will communicate this
to the secretary general of Lok Sabha/Rajya Sabha in writing, endorsing
a copy to law Ministry.
In addition to the above, there are certain other formalities:
1. If the bill involves expenditure, a financial memorandum should
be attached.
2. If the bill is to replace the ordinance, it should be accompanied
by an explanatory statement indicating the need for ordinance.
3. If the bill involves delegation of legislative powers, the extent
and scope and the checks prescribe should be stated.
4. If the legislation is in pursuance of Article 249, Article 312,
Article 252 etc, the copies of the resolution should be attached.
5. If the bill has more than 25 clauses, a separate table of
contents should be included for easy reference.
6. The clauses referring expenditure should be printed in thick
type italics.
After the above formalities, the bill will be sent to Ministry of law
who will forward this to Government of India press for printing.
The proofed copy received from the press will be examined by
administrative Ministry and law Ministry and final copy will be sent to the
secretary general of the concerned house for giving the print order.

72

Procedure in parliament
It is the convenience of the respective house to decide which
house will initiate the bill.
On the day allotted, the Minister in charge of the bill will move a
motion for leave (permission) to introduce the bill. If the leave is granted,
the bill is introduced. This State is called 1st reading.
If the motion for leave is opposed, the speaker may allow Ministerin-charge to make an explanatory statement and also the member who
oppose it. Without further debate, the motion will be put to vote. If the
motion is opposed on the ground of in competence a discussion will be
allowed. After it is voted, the bill will be introduced and publish in the
Gazette extraordinary. Copies of the bills will be given to the members of
both the houses.
1st reading ends here.
2nd Reading
After the copies of the bill were made available to all the members,
on the day allotted for the bill, the Minister will move motion as follows:
1. That the bill be taken up for consideration; or
2. That the bill be referred to select committee or joint committee
or that the bill be circulated for public opinion.
At this stage, the statement of objects and reasons will be
discussed. No details or amendments will be entertained. However, if
the minister moves that the bill be taken up for consideration an
amendment can be moved for referring the bill to the select committee.
The committee can take evidence of the associations/experts or
members of public. It can call witnesses and call evidences. Normal
time limit is three months.
The person who prepared the bill should be present during the
meetings. Record of decisions will be taken and circulated.
The bill will be revised as per the recommendation. The bill and
the select committee report will be published in Gazette. The members
will be given the copy of the minutes, report and the revised bill.
When the bill and the report are placed before the house,
amendments can be moved after clause-by-clause discussion. Each
73

clause will be put to vote wherever amendments are sponsored. The

discussion and voting will follow. During discussion, the draftsman of the
bill should be present in the official gallery. After clause-by-clause
discussion, schedules, table of contents, titles and preamble will be
discussed and voted.
3rd reading
At this stage the discussion is confined only to the arguments for or
against the bill without any details. Only verbal amendments will be
moved and passed. Finally the bill in toto will be put to vote.
As soon as the bill is passed by the one house, it is sent to the
other house. The same procedure will be followed by the other house
also.
There are different procedures for money bill and non-money bill.
A money bill can be introduced only in Lok Sabha. When a money
bill is passed by Lok Sabha, it is sent to Rajya Sabha for its
recommendation. Rajya Sabha has to returned the bill within 14 days
with its recommendation, which Lok Sabha may or may not agree.
If Lok Sabha accepts its recommendation the bill is deemed to
have been passed by both the houses. If Lok Sabha does not accept the
recommendation of Rajya Sabha, the money bill is deemed to have been
passed by both the houses without any amendment made by Rajya
Sabha. If Rajya Sabha does not return the bill within 14 days, the bill is
deemed to have been passed by both the houses. In short, Rajya Sabha
can only recommend and amendment to Lok Sabha.
Ordinary bill can be introduced in either house and both the
houses have equal powers. When a bill is passed by one house, it is
sent to the other house, it is sent to the other house for consideration.
The other house may pass the bill in the same form or pass with
amendments or reject the bill or take no action at all. When the other
house passes the bill in the same form, it is sent to the President for
assent.
Where the other house passes the bill with amendments, it is sent
back to the house of origin for reconsideration. If the house of origin
agrees with the amendment, it is sent to the President for assent. Where
the house of origin does not agree with amendment and where the bill is
rejected by other house or where the other house does not take any
action i.e. does not pass or reject within 6 months from the date of
receipt then a special procedure is laid down for resolving the dispute
74

between Lok Sabha and Rajya Sabha by convening a joint session of

both the houses of parliament under Article 108 of the constitution.
Joint session of the parliament
Article 108, President may, unless the bill is lapsed due to the
dissolution of Lok Sabha, notify to the house his intention to summon
both the houses at a joint sitting. Thereafter, no cause to consider the
bill. At any time thereafter, the President may convene the session. The
bill will not lapsed even if, after notification, the Lok Sabha is dissolved.
The speaker will preside over the seating. If, at the joint seating, the bill
is passed by a majority of total members of both the houses of
parliament present and voting, it is deemed to have been passed by both
the houses and the bill is sent to the President for his assent.
Assent by the President
The President can declare his assent to the bill, which has been
passed by both the houses in which case the bill becomes an act.
President can declare that he is withholding his assent, which is
called absolute Vito. He cannot exercise this in respect of constitutional
amendment bills.
In respect of non-money bill and non-constitutional amendment bill,
the President can refer back the bill to the parliament for reconsideration.
After reconsideration, if the bill is presented to the President, he is bound
to give his assent. This is called suspense Vito.
Taking advantage of the fact that the constitution does not
prescribe any time limit for giving assent to the bill, which has been
presented, to him, President can conveniently pocket the bill meaning
thereby sitting over the bill without decision. This is called pocket Vito.
Thus, the bill, which has been passed by the both the houses of
parliament and assented to by President, becomes an act.
Powers of parliament
Parliament is a sovereign body and rules the country through its
representatives. Parliament has extensive powers as given below:
1.
2.
3.
4.

Legislative powers.
Executive Control.
Financial Control.
Miscellaneous powers.
75

5. Constituent power.
Legislative powers : Right to legislate is inherent power of the
legislature under Article 246 of the constitution. Parliament is competent
to legislate on all subject (97 + 2) in the Union list.
Parliament has also the powers to legislate on all the subjects (47)
in the concurrent list. If there is a clash between a Union law and State
law on a concurrent subject, the Union law will prevail over the State law
unless the State law was reserved for consideration by President and he
has also consented.
Under Article 246(4), President is competent to make law on all
subjects including State subjects with regard to Union Territories. This is
because the division of power given in schedule 7 is between the Union
and the State and not share with Union Territories.
Under Article 248 of the constitution, parliament is competent to
make law on all residuary subjects namely the subjects, which are not
found in any other three lists.
In addition to the above, parliament has the power to legislate on
the State subjects under the following :
1. Under Article 249 of the constitution, when Rajya Sabha passes
a resolution by 2/3rd majority of the members seating and voting,
authorising parliament to make law in national interest,
parliament gets the authority to make law on the State subject
given in the resolution valid for one year and can be renewed
annually by passing similar resolution by similar majority.
2. Under Article 252, when two or more stat legislatures pass a
resolution authorising the parliament to make law on State
subject given in the resolution, parliament gets the authority to
make law on the State subject. The law so make can be
adopted by other State also.
3. When national emergency under Article 352 has been declared,
parliament gets the authority to legislate on all subjects
including State subjects for the entire country.
4. When Presidents Rule under Article 356 is imposed on any
State, the legislative power of that State will be exercised by the
Union parliament, and as such, parliament can legislate on any
State subject with reference to that State.
5. Article 253 authorises parliament to make law on any subject
including State subject to implement any treaty or agreement or
convention with any other country or to implement any decision
arrive at in any international bodies.
76

Executive Control
Under Article 75 of the constitution, the Union Executive namely
the council of Ministers is collectively responsible for Lok Sabha and it
continues in office during the pleasure of Lok Sabha. The administrative
policy is laid down by parliament and the activities of the Government are
controlled discipline and monitored by the parliament. Parliament
questions keep the ministers on toes. Zero hour discussion, calling
attention motion, short duration discussion, Adjournment motion,
half an hour discussion, short notice question etc keep the executive
always under check. The comptroller and auditor general audit on behalf
of parliament. In short, the political executive being part of parliament,
there is always on inherent check over executive.
Financial Control : Parliament enjoys absolute control over
Finance, not even a pie can be withdrawn from the Consolidated Fund of
India without the express approval of Lok Sabha. Even though the
budget is prepared by executive, the power to sanction money lies with
the parliament. Public accounts committee and CAG function like a
watchdog of Finance.
Miscellaneous Powers : Parliament elects President and vice
President. Parliament impeaches President and removes vice President,
judges of Supreme Court/High Court, CAG, Parliament, approves
emergency and Lok Sabha disapproves emergency. Rajya Sabha
creates All India Services.
Constituent powers
Procedure and Power to amend the Constitution (Article 361)
[Most Important]
Notwithstanding anything contained in the constitution, parliament
may in exercise of its constituent power amend any provision of the
constitution in accordance with the procedure given in Article 368.
The bill proposing amendment can be introduced in either house of
parliament and both the houses have equal powers. There are three
types of amendments. First type of amendments are those which can be
effected by a majority such as that required for passing an ordinary law
i.e. simple majority. These are not to be treated as amendment for the
purpose f Article 368. Even though, it amends the constitution. The
examples are:
77

Creation of a new State, amalgamation of

the States, change of name of the State, its
boundary, its territory, reorganisation of
states, creation of upper chamber etc.
In this cases, the bill after having been passed by both the houses
of parliament, will be presented to President for his assent. This is as
good as an ordinary bill.
Second types of amendments are those, which can be effected by
Special majority namely absolute majority plus 2/3rd majority of the
members seating and voting. The provisions of the constitution other
than those mentioned in the first category come under this group. In this
case, the bill can be introduced in the either house of parliament should
be passed by both the houses of parliament by special majority and then
presented to President for his assent. He cannot exercise absolute Vito
or suspense Vito or pocket Vito.
The third type of amendments are those which require, in addition
to passing of the bill by both the houses of parliament by special majority
as described in category two, ratification by a resolution passed by not
less than half of the State legislatures. The ratification should be done
by simple majority. The amendments of the following require such
ratification :
1.
2.
3.
4.
5.
6.
7.
8.

Manner of election of President.

Extent and a scope of executive power of the Union or State.
Provisions of Union Judiciary.
Provisions of State judiciary.
Distribution of legislative powers.
Representation of states in parliament.
Seventh schedule.
Article 368.

It has been held that amendment powers of the parliament also

include the power to amend Article 1 and also to cede national territory in
favour of the foreign State (Supreme Court in Berubari case).
It has been clarified in 24 th amendment act 1971 that nothing in
Article 13 shall apply to any amendment made under this article.
Similarly, it has also been added that no amendment of the
constitution including part III made or purported to have been made
whether before or after 42nd amendment act, 1976 can be called in
question in any court of law on any ground. This provision has been
declared ultra virus in Minerva Mill case by the Supreme Court.
78

Similarly, Supreme Court also nullified the following addition made

through 42nd amendment act, 1976.
For removal of all doubts, it is clarified that there is no limitation in the
constituent power of the Union to add or delete or overhaul any part of
the constitution
Deficiencies in the provision
1. Unlike USA or Canada, there are no constitutional seminars or
conventions or deliberation before the proposal are made.
2. The states have no role to play except in ratifying the
amendments. The State legislatures cannot even initiate any
amendment in respect of there own legislative councils. They
can only propose through a resolution to the Union
Government.
3. The states individuality is not preserved. They have been
reduced to glorified municipalities. Even their name area,
boundary can be changed without their consent.
4. Constitution is not clear whether the states once given their
ratification can withdraw their consent.
5. The constitution is also not clear in which cases, states
ratification is required.
The confusion arose in the
constitutional amendment bill on reduction on voting age.
6. Constitution is also not clear what will happen to a bill if either
house does not agree because there is no provision for joint
session.
Union Judiciary [1 question normally]
The essence of Federal constitution is division of powers between
Union and the states. This division is made in the written constitution,
which is supreme law of land. Since the language of any written
document cannot be free from ambiguities and its meaning is likely to be
interpreted at different times in different ways by different authorities, it is
natural that the disputes may arise between the Union and the states
and the states inter se regarding their powers. Therefore to maintain
supremacy of the constitution and also to ensure impartial interpretation,
Supreme Court is established as an independent impartial authority to
decide the disputes between the centre and the states and among the
states. The Supreme Court is therefore arbitrator of the disputes and
final interpreter of the constitution, guardian of Fundamental Rights and
Guarantor of minority and civil rights.

79

How the independence of Supreme Court is maintained

1. Even though the judges of the Supreme Court are appointed by
President by an executive order, they cannot be removed by
President without following the procedure given in the
constitution.
2. The salary and allowances of the judges of Supreme Court are
fixed by the constitution and are Charged into the
Consolidated fund of India and they are not subject to vote of
the parliament.
3. During the term of their office, their pay and allowances, perks
and other privileges cannot be varied to their disadvantage
except in grave financial emergency.
4. Neither in parliament nor in State legislature, a discussion can
take place with reference to the conduct of a judge of Supreme
Court in discharge of his duties except upon a motion for his
removal.
5. The Supreme Court and High Court have the powers to punish
any person for its contempt.
6. Article 50, which is a directive principle, mandates the State to
take steps to separate the judiciary from executive in the public
services of the State thereby securing the judiciary from the
possible interference by the executive.
7. Constitution does not leave the appointment of judges of the
Supreme Court to the unguided discretion of the executive. The
executive is required to consult Chief justice of India and such
other judges in the appointment of judges. In fact, as per the
recent decision of the Supreme Court, the executive powers
over the appointment of judges have been greatly curtailed.
8. A retired judge of Supreme Court is forbidden from practice
after retirement in any court within the territory of India except
chamber practice.
9. In respect of jurisdiction, President has the powers only to
enhance the jurisdiction on powers of the Supreme Court.
Financial Relation between Central and State
There are various provisions for distribution of taxes and non-tax
revenue, powers of borrowing and sanction of grants-in-aid.
There is distinction between the legislative powers to levy tax and
the powers to appropriate tax proceeds. Both Union and State have
sources of revenue.

80

Parliament can levy tax on the subjects included in Union list and
State legislature can levy tax on State subjects. No tax can be levied on
the subject included in the concurrent list.
Finance Commission is the missionary constituted for distributing
financial resources between Union and the State.
Four specific
responsibility has been given to the Finance Commission :
1. To recommend distribution of net tax proceeds between Union
and the State and allocation of shares among the State;
2. To lay down the principles for sanction of grants-in-aid.
3. Measures needed to augment [enlarge] the Consolidated fund
of the states to supplement the resources of the municipality in
the states; &
4. Any other matter, which has been referred to by President.
Distribution of taxes
1. Taxes belonging to the Union :
a)
b)
c)
d)
e)

Customs;
Corporate tax;
Tax on capital value of assets of individual and company;
Surcharge on income tax; &
Fees in respect of Union subjects.

2. Taxes belonging to the states :

a)
b)
c)
d)
e)
f)

Land Revenue;
State duty;
Succession duty;
Sales tax;
Tolls; &
Income tax on agricultural land.

3. Duties levied by Union but collected and appropriated by the State :

a) Stamp duty on bill of exchange; &
b) Excise duty on medical production etc.
4. Taxes levied and collected by the Union but assigned to the states :
a) Estate duty other than agricultural land;
b) Terminal tax; &
c) Tax on sale off and advertisement in newspaper.
81

Non-tax revenue of the Union

a)
b)
c)
d)

Railway receipts;
Broad casting receipts OPM receipts;
Currency mint; &
Resources of Public Sector Unit.
Non-tax revenue of the state

a) Forest receipt;
b) Irrigation;
c) Deep-sea fishing etc.
In addition to the above, Union meets the financial needs of the
states in two ways :
1. Grants-in-aid; &
2. Loans.
Grants-in-aid can be granted to the State to meet its budgetary deficits.
Central Government has unlimited powers to borrow either within
India or outside subject to the limitations imposed by the parliament. The
states cannot borrow outside India. Though the states can borrow within
India, the right is subject to the limitation imposed by the Union
executive.
The financial power of the states is further restricted by the report
of CAG because CAG is the watchdog of the public finance, which
includes State finance also.
***

82