Вы находитесь на странице: 1из 45

Preamble

Introduction Constitution is the fundamental document that describes the relationship between the Government and the people. In a federal constitution like ours it describes the relationship between the Union and the states too. Our constitution was drafted by a constituent assembly formed under the provisions of Cabinet Mission Plan 1946. It had 389 members including 93 representatives of the India States. The First meeting of the constituent assembly was held on 9th December 1946 under the chairmanship of Dr. Satchidanand Sinha. Muslim league boycotted the assembly. Dr. Rajendra Prasad was elected the chairman of the Constituent Assembly. The authority of constituent assembly was limited under the Cabinet Mission Plan but with the passage of Indian Independence Act of 1947, the constituent assembly became a sovereign body to draft the constitution covering all aspects. The constituent assembly elected a drafting committee with Dr.B.R.Amedkar as the chairman on 29 Aug 1947. It concluded its work on 26th November 1949 and some of its provision like citizenship, election etc was brought into operation but the rest of the constitution came into force on 26th January 1950. At present, the constitution contains XXII parts with 395 Articles and 12 schedules. The preamble to the constitution reflects the aims, objects and purpose of the constitution. Preamble is not justicable, i.e. its provisions are not enforcible through the courts of law. Its violation cannot be punished. WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all citizen: JUSTICE , Social, economic and political LIBERTY of thought, expression, belief, faith and worship EQUALITY of status and of opportunity; and to promote among all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; IN OUR CONSTITUENT ASSEMBLY this twenty sixth day of November 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. Note: Green colored words are added by 42nd Amendment of 1976 The Preamble is just an introduction of the constitution and not one of its operative provisions. The courts depend on preamble in case of any ambiguity of law, for the purpose of explaining and elucidating a particular law.

Meaning of terms used in the preamble Sovereign: fully independent state in controlling its own destiny both internal and external Republic: Head of the state (President) is an elected person and not a hereditary king or queen Democratic: The power of the state is to be exercised by their representatives in Parliament and State legislaturesT Provisions taken from other constitutions Our constitution has adopted some provisions from other constitutions The following table gives a brief list such borrowings Australia Britain Canada Japan South Africa USSR USA Concurrent list, Centre State relationship Parliamentry form of government, Collective responsibility, Citizenship Federal setup with strong centre Law on which Supreme Court functions Procedure of constitution amendment Fundamental duties Fundamental Right, Vice President, Establishment of Supreme Court & Judicial review

Territory of the union


Territory of the union Article 1 of our constitution says : India, that is Bharat ,shall be a union of states. The term union includes only states but term territory of India includes the entire territory over which the sovereignty of India , for the time being extends. There are 2 classes of territory of India viz. (i) union territory, which are centrally administered areas. (ii) such other territories as may be acquired by India, administered by government of India subject to legislation by parliament. India is a union of states and no agreement was signed between the central government and the states for the creation of federation. So it is possible to redraw the map of India by a simple procedure. Art 3 says that the parliament may by law form a new state by separation of territory from any state or by uniting two or more states or parts of states or by uniting any territory to any part of any state: increase or diminish the area of any state; alter the name and boundaries of any state. The bill for this purpose shall not be introduced without the recommendation of the president, and the bill may be referred to the state legislature for expressing their views with in a specified period. Article 4 provides that any such law may amend the First and Forth schedules of the constitution without going through the special formalities required by Art 368. Before independence, about 600 princely states acceded to India due to the efforts of Indias first Home Minister Sardar Vallabhai Patel except Hydrabad where forces were applied and in Junagarh referendum was held. Efforts were made to make states homogeneous in Cultural and linguistics. S.K. Das commission and another commission under Nehru, Patel and Pattabhi Sitaramaya was appointed but their recommendations were rejected. Andra Pradesh was the first state created on linquistic basis in 1953 after the death of Sriramulu. A recommendation of third commission under Fazal Ali (chairman), K.M. Panicker and Pt. H.N. Kunzru recommended language as the basis for creation of states.

Citizenship (Art 5-11)


Citizenship The Indian constitution provides only single citizenship even though it is federal in character. Some federal constitutions like that of U.S.A provides for dual citizenship one for the state of domicile and one for the federation. The main provisions of citizenship as follows a) Right of Citizenship at the commencement of the constitution: Any person who has a domicile in the territory of India or born in India or whose parents were born in India or who has been resident in India for not less than 15 years immediately preceding the commencement of constitution of India is a citizen of India. b) Right of citizenship of those migrated to India from Pakistan before 19th July 1948 c) Those persons who migrated from Pakistan to India after 19 July 1948 if they have been registered as citizens of India by an officer appointed for the purpose on an application made by them before the commencement of the constitution. No such person could be registered unless he had been resident of India for at least 6 months before the date of his application for registration. Such registration could take place before commencement of the constitution. d) Right of citizenship of those who migrated to Pakistan but later on returned to India: A person who had migrated from Indian Territory to Pakistan territory after 1st March 1947 but who returned to India under a permit for resettlement or permanent return issued by an appropriate authority, shall be deemed to be a citizen of India. The parliament passed a law in 1955 to deal with the acquisition and loss of citizenship in India. Citizenship (Art 5-11) Modes of acquiring and loss of Indian Citizenship The citizenship act provides 5 modes of acquiring Indian Citizenship. 1) Birth: A person born in India on or after 26 Jan 1950 except children born of foreign diplomatic personnel and enemy aliens 2) Descent: A person born outside India on or after the 26th January, 1950 of Indian Parents shall be an Indian citizen 3) Registration: A person can acquire Indian citizenship if he belongs to Persons of Indian origin residing outside the territory of India, Women married to Indian citizens , Minor children of Indian citizen, citizens of commonwealth countries and Ireland , persons of Indian origin but ordinarily residing in India and who have been so resident for at least 6 months before making an application for registration.

4) Naturalisation: A citizen of another state who has renounced his citizenship and has resided in India or has been in the service of the government in India for one year immediately prior to the date of his application and during the seven years preceding this one year has resided in India or been in service of a government in India for an aggregate of 4 years could acquire citizenship by naturalisation. 5) Acquisition of territory: If the government of India acquires new territory as a part of India, it may prescribe conditions as to which persons shall be citizen of India Loss of Citizenship: An India citizen may lose citizenship under the following conditions 1) Renunciation: A Citizen of India may renounce his citizenship through a declaration made in a prescribed manner 2) Termination: A citizen of India shall lose his citizenship if he or she voluntarily acquires citizenship of another state at any time after 26 Jan 1950. 3) Deprivation: The government of India can deprive a person of Indian citizen by issuing an order under Art 10 of the Indian Citizenship Act.

Fundamental Rights
Introduction The Indian people desired to have civil rights in the struggle the British. When India, became Independent, these civil rights were incorporated in Part III of the constitution as a fundamental rights which aims at creating a society in which its citizen could lead a life of freedom from coercion by the state as well as society. Art 12 defines the term state, which includes the Government Executive and Parliament of India, Government and legislature of the of each of the states in India and all local government (municipalities, Panchayats) and other authorities within the territory of India or states Art 13 says that any law passed in violation of Part III is void to that extend of violation. Thus it provides for Judicial review of the acts passed by the legislature.

Fundamental Rights Freedoms Article Explanation The state shall not deny to any person equality before law or equal protection of laws within the territory of India The state shall not discriminate against any citizen on grounds of religion, race, castes, sex, place of birth or any of them Prohibits discrimination in matters relating to employment in state services on grounds of religion, race, case, sex, and place of birth or residence. Abolishes untouchability Abolishes titles and prohibits the state to confer titles on anybody except in academic or military distinctions a) Right to freedom of speech and expression b) Right to assemble peacefully without arms c) Right to form associations and unions d) Right to move peacefully throughout the territory of India e) Right to reside and settle in any part of India g) Right to practice any profession or to carry on any occupation, trade or business Protection against arbitrary and excessive punishment to any person who commits an offence and immunity from double punishment No person shall be deprived of his life or personal liberty except according to a procedure established by law. 1) Guarantees the right of every person who is arrested to be Informed of the cause of his arrest. 2) His right to consult and to be defended by a lawyer of his choice 3) Every person who is arrested and detained in custody shall be

Right to Equality 14

15

16

17 18

Right particular freedom

to 19

20

21

22

produced before the nearest magistrate within a period of 24 hours Right against 23 exploitation 24 Prohibits traffic in Human beings, beggar and similar forms of forced labour. No child below 14 years of age shall be employed to work in any factory or mine or engaged in any other hazardous employment Subject to public order, morality and health and to other provisions of this part, All persons are equally entitled to freedom of conscience and the right freely to profess , practise, and propagate religion. the right to establish and maintain its own institutions for religious and charitable purposes Provides protection to religious activity by exempting funds appropriates towards the promotion and maintenance of any particular religion from the payment of taxes. Prohibits religious instruction in any educational institution wholly maintained out of state funds. 1) Guarantees the right of citizens having distinct language, script and culture of its own to conserve them. 2) Prohibits discrimination based on religion, race, caste, language or any of them in the matter of admission to state or state aided educational institutions. 1) minorities based religion or language to have the right to establish and administer educational institutions of their choice. 2) State shall not in granting aid to educational institutions, discriminate against any educational institutions on the ground it is under the management of a minority. By the enactment of 44th Amendment act 1978 the right has been taken out of Part III and made a separate article 300 A which reads as follows. No person shall be deprived of his property save by the authority of Law.

Right to freedom 25 of religion

26

27

28

Cultural and Educational 29 Right

30

Right to property 31

Right to Constitutional 32 Remedy

It is the most important article of the constitution and called as the cornerstone of the entire edifice set up by the constitution. It provides a guaranteed remedy for the enforcement of the above rights and this right itself made a fundamental right. Any person who complaints that his fundamental rights has been violated may move directly to the Supreme Court for the enforcement of these rights

Fundamental rights granted to citizen alone are equality of opportunity in matters of public employment, protection from discrimination on any ground, freedom of speech, peaceful assembly, expression, association, movement, residence and profession, and cultural and educational rights. All others are available to citizens and aliens. Writs a) Habeas corpus, literally meaning to have a body, is a writ issued by the court to bring before the court to bring before the court a person from illegal custody. The court will examine the legality of detention and release the person from illegal custody. The writ may be addressed to an official or even to a private person. b) Mandamus means command, issued to a public authority to do an act under law, it is obliged to do or to forbear from doing. c) Prohibition is writ to prevent a court or tribunal from doing something in excess of its authority. High Court has the Power to issue an order of prohibition to the executive authority prohibiting it from acting without jurisdiction. d) Certiorari is a writ issued to a judicial or quasi judicial authority to correct its order. This is issued on specified grounds like violation of natural justice , excess, abuses or lack of jurisdiction, fraud; and error of law apparent on the face of the record. Thus prohibition is available at an earlier stage and certiorari is available at a later stage. e) Quo-warranto is a writ issued to a person who authorisedly occupies a public office to step down from that office

Directive Principles of state policy


Introduction Part IV of the constitution contains the directive principles of state policy. According to Art. 37 , it shall be the duty of the state to apply the Directive principle in making laws for the governance of the country. However these principle are not enforcible in the courts and do not create any justicable rights in favour of Individuals. The courts cannot declare any law as void on the ground that they contravene any of the directives of state policy. Classification - Economical ideals Directive principle of state policy can be classified as follows a) Certain economic ideals, the state should strive for 1) The state shall strive to promote the welfare of the people by securing a social, economic and political justice (Art 38(1)) 2) To minimise inequality in income, status, facilities and opportunities, amongst individuals and groups (Art 38(2) 3) The state shall endeavour to secure just and humane conditions of work, a living wage, a decent standard of living and social and cultural opportunities for all workers (Art 43) 4) The state shall endeavour to raise the level of nutrition and standard of living and to improve public health. (Art 47) 5) The state shall direct its policy towards securing equitable distribution of the material resources of the community and prevention of concentration of wealth and means of production. (Art 39 (b)-(c)) 6) The state shall endeavour to promote international peace and amity (Art 51) b) Certain directions to the legislature and Executive intended to show in what manner the state should exercise their legislative and executive powers. 1) To establish economic democracy and justice by securing certain economic rights 2) To secure a uniform civil code for its citizen(Art 44) 3) To provide free and compulsory primary education(Art 45) 4) To prohibit consumption of liquor and intoxicating drugs except for medical purposes(Art 47) 5) To develop cottage industries(Art 43)

6) To organise agriculture and animal husbandry on modern lines 7) To prevent slaughter of useful cattles, i.e. Cows, Calves, and other milch and draught cattle (Art 48) 8) To organise village panchayats as units of self government.(Art 40) 9) To promote educational and economic interests of weaker sections and to protect them from social injustice..(Art 46) 10) To protect and improve the environment and to safe guard forests and wild life (Art 48A) 11) To protect and maintain places of historic or artistic interest(Art 49) 12) To separate the judiciary from the executive (Art 50)

Rights of citizen c) Certain rights of citizen which shall not be enforceable by courts like Fundamental rights but which the state shall nevertheless aim at securing by regulation of its legislative and administrative policy. 1) Rights to adequate means of livelihood (Art 39 (a)) 2) Right of both sexes to equal pay for equal work(Art 39(d)) 3) Right against economic exploitation (Art 39 (e)-(f)) 4) Right of children and young to be protected against exploitation and to opportunities for healthy development , consonant with freedom and dignity.(Art 39 (f)) 5) Right to equal opportunity for justice and free legal aid (Art 39A) 6) Right to work (art 41) 7) Right to public assistance in case of unemployment, old age, sickness and other cases of undeserved want (Art 41) 8) Right to humane conditions of work and maternity relief (Art 42) 9) Right to a living wage and conditions of work ensuring decent standard of life for workers (Art 43) 10) Right of workers to participate in management of industries (Art 43A) 11) Right of children to free and compulsory education (Art 45)

Fundamental duties
Part IV A was added by 42nd Amendment Act, 1976. It encompasses Part IV, article 51 A enumerating ten fundamental duties of the Citizen of India. Under this article, it shall be the duty of every citizen of India, 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. To abide by the constitution and respect the National Flag and National Anthem To cherish and follow the noble ideals which inspired our national struggle for freedom To protect the sovereignty, unity and integrity of India To defend the country To promote the spirit of common brotherhood amongst all the people of India To preserve the rich heritage of our composite culture To protect and improve the natural environment To develop the scientific temper and spirit of inquiry To safeguard public property To strive towards excellence in all spheres of individual and collective activity.

These duties are addressed to the citizen, without any legal sanction for their violation.

The Union Executive


Term & Salary of President The term of office is 5 years from the date on which he enters upon the office and is eligible for re-election. The term may terminate within 5 years by 1) resignation in writing under his hand addressed to the vice president 2) by impeachment. Impeachment is a quasi-judicial procedure in the parliament to remove the president from office due to the violation of the constitution. Either house may prefer this charge of violation of constitution before the other house. A house cannot prefer the charge unless 1) 14 days notice in writing signed by not less than of the total members of that house 2) the resolution should be passed by not less than 2/3 of the total membership of that house. The house may investigate or cause it to investigate and the president has the right to appear and to be represented before such investigation. As a result of such investigation, a resolution is passed by not less than 2/3 of the total membership of the house before which the charge has been preferred, such resolution shall has the effect of removing the president from the date on which the resolution is passed. A vacancy in the office of president may arise a) On the expiry of his term b) By death , resignation, impeachment or otherwise i.e. by setting aside of his election as president. If the vacancy is caused to the delay in the election of the president, the outgoing president must continue to hold the office and for all other occasions the vice president shall act as the president. If the Vice president is not available, the chief justice will act as the president. The Salary of the president is Rs 50000 per month and eligible for an annual pension of 1,20,000 ( as per the act of parliament,1998). The emoluments shall not be decreased during his term of office. All the doubts and disputes shall be decided by S.C. whose jurisdiction shall be exclusive and final provided that a) No such dispute can be raised on the ground of any vacancy in the electoral college which elected the president b) if the election is void, the acts done by him prior to the date of such decisions of the S.C shall not be invalidated. Law must regulate all other matters relating to the election of president.

President The President is the head of Union Executive. He is elected by an indirect election by an electoral college in accordance with system of proportional representation by means of single transferable vote. The Electoral College consists of the elected members of both houses of parliament, legislative assemblies of states and legislative assemblies of union territories of Delhi and Pondicherry. (Art 54). As far as practicable, uniformity of representation of different states, according to the population and total no. of elected members of legislative assembly of each state and parity shall also be maintained between states as whole and union. (Art 55). Thus total number of votes of an elected M.L.A = Population of the state / 1000 Total number of elected M.L.As Total number of votes of an M.P =Total number of votes assigned to all elected M.L.As Total number of elected M.P Qualifications: The person to be elected as a President must be a 1) A citizen of India 2) must have completed 35 years of age 3) be qualified for election as a member of house of the people 4) must not hold any office of profit. However a sitting president, vice president or governor of any state or a minister is not disqualified for election as president (Art 58). Administrative Power It refers to the execution of laws and administration of government departments. He may not be the real head of the administration but all the executive action of the union must be expressed to be taken in the name of the president. This power also includes the power to appoint and remove high dignitaries of the state. Under the constitution the president shall have the power to appoint (i) The Prime minister of India (ii) Other Ministers of the union (iii) The Attorney General for India (iv) The Comptroller and Auditor General of India (v) The Judges of the Supreme Court (vi) The Judges of High Court of the states

(vii) The Governor of a state (viii) A commission to investigate interference with water supplies (ix) The Finance Commission (x) The Union Public Service Commission and Joint commission for a group of states. (xi) The Chief Election Commissioner and other members of Election Commission. (xii) A special officer for the Scheduled Castes and Tribes. (xiii) A Commission to report on the administration of scheduled areas. (xiv) A Commission to investigate into the condition of backward classes. (xv) A commission on official language (xvi) Special officer for linguistic minorities. In making some appointments the president is required by the constitution to consult persons other than his ministers. The president has the power to remove i) His ministers individually ii) The Attorney-General for India iii) The Governor of a state iv) The chairman or a member of Public Service Commission of the Union or of a State, on the report of the Supreme Court v) A Judge of Supreme Court or of a High Court or the Election Commissioner , on an address of parliament. Powers of president Art. 53 says that the Executive Power of the Union shall be vested in the President. The executive power consists of a) Administrative power b) Diplomatic Power c) Military power d) legislative power e) judicial power.

Military power & Diplomatic Power Military power: The Supreme Command of Defence force is vested in the president of India but the exercise of the power shall be regulated by law. Diplomatic Power: This term comprises all matters, which bring the union into relation with any foreign country. The president appoints and receives ambassadors. All agreements and treaties made with other countries are made in the name of the president. Legislative Power Under our constitution the president is to executive head and is a part of parliament. He has the power To summon and prorogue the parliament ( Lok sabha and Rajya sabha) To dissolve Lok sabha (Rajya sabha is a permanent body) To summon a joint sitting

To nominate 12 members to Rajya Sabha from persons having special knowledge or practical experience of literature, science, art and social service and 2 members from Anglo Indian community to Lok Sabha if in his opinion the community has not been adequately represented. He has the right To address the opening sessions of newly elected parliament and first session of each year and inform the members the causes as to why they have been summoned. To address both houses at any time and send messages.

The president has the power to cause certain reports and statements to be laid before the parliament. They are 1) Annual Financial Statement and supplementary statement if any 2) Reports of Auditor General 3) Recommendation of Finance commission 4) Report of Union Public Service Commission 5) Report of the Special officer of SC and STs 6) Report of commission on backward classes

7) Report of special officer of linguistic minorities The constitution requires previous sanction or recommendation of the president for introducing legislation on the following matters 1) A bill for the formation of new states or alteration of boundaries 2) A bill for providing for any of the matters specified in Art. 31A(1) 3) A money bill 4) A bill which would involve expenditure from consolidated fund of India 5) A bill affecting taxation in which states are interested 6) State bills imposing restrictions upon freedom of trade (Art. 304) A bill will not be an act of the Indian Parliament unless and until it receives the assent of the president. When the bill is presented to the president, he may take the following steps 1) He may declare his assent to the bill (or) 2) He may declare that he withholds his assent to the bill (or) 3) He may, in case of bills other than money bills return the bill for the reconsideration of the Houses, with or without a message suggesting amendments. However if the bill is passed again by both houses of parliament with or without amendment and again presented to the president, it would be obligatory upon him to declare his assent to it .(Art 111) A money bill cannot be returned for reconsideration. When the parliament is not in session, The President shall have the power to legislate by ordinances. (Art 123). However there are some limitations on his independent ordinance making power. 1) This power is to be exercised on the advice of council of ministers 2) It should be laid before parliament when it reassembles and cease to have effect at the expiration of 6 weeks from the date of re-assembly unless disapproved earlier. 3) And even though, the legislature is not in session, he cannot issue ordinance unless he is satisfies that there are circumstances, which render it necessary for him to make immediate action. The sole Judge of the question of whether such a situation has arisen is the president and In Coopers case the S.C expressed the view that the genuineness of the presidents satisfaction cab be challenged in a court of law on the ground that it was mala fide.

The Pardoning Power According to Art. 72, Indian President has pardoning power to correct the possible judicial errors. He has power to pardon sentence by court martial, sentence or punishment is for an offence against a law relating to a matter to which the executive power of union extends and in all cases where the sentence is one of death.

Vice President - Qualifications & term The person to be elected as a Vice President must be a 1) A citizen of India 2) must have completed 35 years of age 3) be qualified for election as a member of Rajya sabha 4) must no hold any office of profit. The term of vice president is 5 years and he can be removed before his term by giving at least 14 days notice and passing a resolution supported by a majority of members and agreed to by the Lok shaba. No formal functions are attached to the office of Vice President however he is the next highest dignatory to the President of India. The vice president act as the chairman of Rajya Sabha. But if there is a vacancy in the office of the president because of death, resignation, removal or otherwise the Vice President act as the President. When he discharges the functions of president he gets the emoluments of the President. V.V.Giri acted as the President after the death of Dr. Zakir Hussain; B.D.Jatti acted as when Fakrudeen Ali Ahmad Expired Prime Minister (PM) Art. 74(1) of our constitution states that the Prime minister shall be at the head of council of ministers. He has the power of selecting and advising the President to dismiss them individually. He is the chairman of the cabinet. Art. 78 provides that it shall be the duty of the Prime minister (a) to communicate to the president all the decisions of the council of ministers relating to the administration of the affairs of the union and proposals for legislation. (b) To furnish such information relating to the administration of the affairs of the union and proposals for legislation as the president may call for and

(c) If the President so requires to submit for the consideration of the council of ministers any matter on which a decision has been take by a minister but which has not been considered by the council. Categories of Council of Ministers There are three categories of council of ministers. Cabinet Ministers, Ministers of state and Deputy Ministers. The cabinet meetings can be attended by all cabinet ministers, Minister of state and deputy minister attend only if invited. Collective responsibility: The constitution provides for the collective responsibility of the council of ministers to the house of people only. The ministry as body has to resign as soon as it loses the confidence of the Lok Sabha. The Attorney-General for India The attorney-General for India is the first law officer of the Goverment of India and his duty shall be to give advice on legal matters and to discharge functions conferred on him by constitution or any law for the time being in force( Art. 76). Though he is not a member of cabinet, he has the right to speak in both houses and has a right of audience in all courts in the territory of India. He is appointed by the President and hold office during the pleasure of the President. He must have the same qualifications as are required to be the judge of S.C. The comptroller and Auditor General of India The comptroller and Auditor General of India is the guardian of public purse and it is his duty to see that not a farthing is spent out of Consolidated fund of India or of state without the authority of the appropriate Legislature. The following provisions secure the independence of the comptroller and Auditor General. Though appointed by the president he may be removed only on an address from both houses of parliament on the grounds of proved misbehaviour and incapacity. His salary and conditions of service cannot be varied to his disadvantage. The term of office shall be 6 years. He shall vacate the office on attaining the age of 65 years.

The Union legislature


Union legislature The parliament of India consists of the president and two houses. 1) The lower house is called the house of the people (Lok Sabha) 2) upper house is called the Council of states (Rajya Sabha). The Council of states shall be composed of not more than 250 members of whom a) 12 members shall be nominated by the president and 238 shall be representatives of the states and UTs elected by the method of indirect election. The representatives of each state shall be elected by elected members of legislative assembly of the state in accordance with the system of proportional representation by means of single transferable vote. The representatives of UTs are also selected by this manner. The Rajya Sabha shows the federal character by representing the units of federation however it does not show equality of representation as in America. The No. of membership varies from 1(Nagaland) to 34 (U.P). The Council of states is not subject to dissolution. It is a permanent body but 1/3 of its members retire on the expiration of every second year. Lok Sabha The House of the people prescribes a maximum number as follows a) Not more than 530 representatives of states b) Not more than 20 representatives of union territories. c) Not more than 2 members of Anglo-Indian community The people of the states on the basis of adult suffarage shall directly elect the representatives of the states. Every citizen who is not less than 18 years of age and is not otherwise disqualified e.g. By reason of non residence, unsoundness of mind, crime or corrupt or illegal practice shall be entitled to vote at such election (326). There will be no reservation for any minority community other than the scheduled Castes and Tribes. The election to the Lok sabha requires that the territory of India should be divided into territorial constituencies for the purpose of holding such elections. So the 7th Amendment act provided for uniformity of representation in two respects a) between different states and between the different constituencies in the same state depending upon the population.

The normal life of the Lok Sabha is 5 years but it may be dissolved earlier by the President. The normal term may extended by an act passed by parliament during a proclamation of Emergency is in operation. The extension cannot be made for a period not exceeding one year at a time and in any case such extension cannot continue beyond a period of 6 months after the Proclamation of Emergency ceases to operate. The President must summon each house at such intervals that 6 months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session. A session is the period of time between the first meeting of a parliament and its prorogation or dissolution. Recess is the period between prorogation of parliament and its reassembly in a new session Adjournment refers to the postponement of consideration of business for a specified time Prorogation terminates a session but the dissolution ends the life of the House. The powers of dissolution and prorogation are exercised by President on the advice of the council of ministers, the power to adjourn the daily sittings of the house of the people are exercised by Speaker or the Chairman as the case may be. The dissolution brings an end to all the business pending before the House but a bill pending in the council which has not yet been passed by the house shall not lapse on dissolution. Dissolution would not however affect a joint sitting of two houses summoned by the President has notified his intention to hold a joint sitting before the dissolution (108(5)). Qualifications for membership of parliament a)Must be a citizen of India b)Must be not less than 30 years of age in case of RS and not less than 25 years in case of Lok Sabha Additional qualifications may be prescribed by parliament by law and a person shall be disqualified for being chosen as and for being a member of either House of parliament a) If he holds any office of profit under the GOI or of any state but not a minister b) If he is unsound mind and so declared by competent court c) If he is an undischarged insolvent. d) If he is not a citizen of India or has voluntarily acquired citizenship of a foreign state or is under acknowledgement of allegiance or adherence to a foreign power. e) If he is so disqualified by or under any law made by parliament (102).

Any question regarding disqualifications, the presidents decision based on the opinion of election commission, shall be final. A member of parliament shall vacate his seat if a) If he acquires membership of both house of parliament or of union and state legislature. b) Disqualified as mentioned above c) By resignation addressed to the speaker or chairman as the case may be d) If the member absents himself from all meetings of the house for a period of 60 days without permission of the House. Privileges of house and members The privileges enjoyed by members individually are 1) Freedom from arrest in civil cases during a period of 40 days before and after meeting 2) freedom of attendance as witness 3) freedom of speech. It gives immunity of action for anything said within the walls of house subjected to the rules framed by the house. The constitution imposes a limitation with respect to the conduct of any judge of SC or of HC in the discharge of duties except upon a motion for their removal. (121) The privileges of the house are collectively are 1) The right to publish debates and proceedings and the right to restrain publication by others 2) The right to exclude others 3) The right to regulate the internal affairs of the House, and to decide matters arising within its walls 4) The right to publish parliamentary misbehavior 5) The right to punish members and outsiders for breach of its privileges.

Speaker There shall be a speaker to preside over the house of the people. Speaker and deputy speaker will be chosen among the members as soon as after the first sitting. They normally hold the office during the life of the house and may terminate earlier by the following ways a) By ceasing to be a member of house b) by resignation addressed to Deputy Speaker or Vice versa c)By removal from office by a resolution passed by a majority of all the then members of the House. The Speaker exercises a casting vote in case of tie. He has the power to maintain order within the house, interpret its Rules of procedures, adjourn or suspend the House. The speaker shall preside over the joint sitting of the two houses of the parliament and when a money bill is transmitted from Lok Sabha to Rajya Sabha, the speaker shall endorse on the bill his certificate that it is a money bill. The deputy speaker presides when the speaker is vacant or absent. Privileges are certain rights belonging to each house of parliament collectively, and some others belonging to the members individually without which it would be impossible for either house to maintain its independence of action or dignity of its position. The constitution confers upon the houses of legislatures the same British privileges as those of house of common. Parliamentary committees A parliamentary committee is a committee which is appointed or elected by the House or nominated by the speaker and works under the direction of the speaker and present the report to the speaker or to the house. There are two type of committees Viz. Ad hoc committees and Select committees. Ad hoc Committees are appointed for a specific purpose and they cease to exist when they finish the task assigned to them and submit a report. The principal Ad hoc Committees are the Select and Joint Committees on Bills. Others like the Railway Convention Committee, the Committees on the Draft Five Year Plans and the Hindi Equivalents Committee were appointed for specific purposes. Apart from the Ad hoc Committees, each House of Parliament has Standing Committees like the Business Advisory Committee, the Committee on Petitions, the Committee of Privileges and the Rules Committee, etc. Loksabha has 18 standing committees. No member is to be appointed or elected unless he is willing to serve on it. Legislative procedure for ordinary bills Stages in Legislative procedure for ordinary bills

1. Introduction: A bill may be introduced in either house of parliament by a Minister or by a private member. The leave of house is required to introduce the bill by a private member and it should published in the official gazette. 2. Motions after introduction: The member in charge of the bill may make the following motions. a) That it be taken into consideration b) That it be referred to a select committee or a Joint committee c) That it be circulated for eliciting public opinion. After the passage of above motions, the principles of the bill and general Provisions are discussed. 3. Report by select committee . After receiving the report of select committee A motion that the bill as returned by select committee be taken into consideration and the clauses of the bill are open to consideration and amendment are admissible. 4.Passing of the bill in the house where it was introduced 5.Passage in the other House as described above. The house, which receives the bill from another house, may take the following courses a) It may reject the bill altogether. b) It may pass the bill with amendments c) It may take no action on the bill within 6 months In all the above case if the originating house does not agree on the actions taken by the other house, the president may apply a joint sitting as per the provisions of Art 108. 7) when presidents assent is obtained the bill becomes an Act. Vote on account The process of voting of demands continues for a long time while day to day expenditure of the government cannot wait till the budget is finally passed. To meet this difficulty, a new device vote on account is introduced to draw from consolidated fund generally for two months. It is passed without debate.

In the sphere of finance, the parliaments power is supreme. Art 265 says that no tax shall be collected except by the authority of law. In the same manner Art 266(3) says that no moneys shall be appropriated out of the consolidated fund of India except in accordance with the law. Consolidated fund of India & Public Account of India Consolidated fund of India: Subject to the assignment of certain taxes to the states, all revenues received by the government of India, all loans raised by the government and all moneys received by that government in repayment of loans shall form one consolidated fund to be called the consolidated fund of India Art (266(1)). Public Account of India: All other moneys received by or on behalf of the government of India shall be credited to the public Account of India Art (266(2)). Contingency Fund of India/state: Art 267 empowers Parliament and the legislature of a state to create a Contingency Fund for the purpose of meeting the unforeseen expenditure by the Executive. The amount of the Fund is subject to be regulated by appropriate legislature. The expenditure charged on consolidated fund of India are a) the emoluments and allowances of presidents and other expenditure relating to his office, b) the salaries and allowances of chairman and Deputy chairman of the council of states and the Speaker and Deputy speaker of the houses of the people c) debt charges for which the government of India are liable d)(i) the salaries, allowances and pensions payable to or in respect of judges of supreme court (ii) the pensions payable to or in respect of of judges of the Fedral Court (iii) pensions payable to or in respect of Judges of any High Court e) the salary, allowances and pension payable to or in respect of the comptroller and Auditor General of India f) any sums required to satisfy any judgement, decree or award of any court or arbitral tribunal g) any other expenditure declared by this constitution or by Parliament by law to be charged.

The State Executive


Governor Our Constitution provides for a federal government having separate systems of administration for the union and its units, called states. The pattern of Government is almost same for the Union and states with minor differences. So only the differences are dealt in this Chapter. Part VI of the constitution is applicable to all states except Jammu and Kashmir. Governor: At the head of the executive power of a state is the Governor just as the President stands at the head of the executive power of the Union. The same person can act as the Governor for more than one state and he may be appointed one than once. The Governor is not elected but is appointed by the President and the normal term is 5 years but it may be terminated earlier by i) Dismissal by president at whose pleasure he holds the office (Art 156(1)) ii) Resignation holds the office at the pleasure of the President. The Governor has no military and diplomatic Power however he has the following powers. Qualification: citizen of India, completed 35 years of age, should not hold any office of profit, must not be the member of parliament or state legislatures. Executive Power He has the power to appoint the council of ministers, Advocate General (corresponding to Attorney General of India) and the members of the state public service commission. The ministers as well as the advocate general hold during the pleasure of the Governor but the members of State Public Commission cannot be removed by him. The Governor can nominate one member from the Anglo-India Community if he is satisfied that they are not adequately represented. The Governor can nominate members to the upper chamber of state legislature amongst persons having special knowledge or practical experience in respect of matters such as literature, science, art, co-operative movement and social service. Legislative He summons, adjourns, prorogues and dissolves legislative assembly. When a bill is presented to him for his approval, he may give his assent, or he may reserve it for the consideration of the president or he may return it to the legislature for reconsideration. A bill thus returned, if again passed with simple majority, it becomes obligatory for him to give his assent. No money bill can be introduced without his recommendation. His other legislative functions include an address to the legislatures at the beginning of first session every year, may address, send messages to, legislatures. He has the power of issuing ordinances during the recess of the state legislature. An ordinance issued by the Governor ceases to be effective six weeks after the reassembly of the legislature unless approved earlier.

Judicial He has the power to grant pardons, reprieves, respites or remission of punishments or to suspend, remit or commutes the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the state extends (Art 161) Emergency power He has no emergency power but has the power to make report to the President whenever he is satisfied that a situation has arisen in which the provisions of the constitution cannot be carried on accordance with the provisions of the constitution thus inviting the Presidents Rule. Special Powers: The governors of some states like Assam, Arunachal Pradesh, Nagaland, Sikkim have been special powers. In states of Bihar, MP and Orissa it is the special responsibility of the governor to see that a minister is placed in charge of tribal welfare. Real Position of the Governor The constitution vest enormous powers on the president. But in real practice all these powers are be exercised only on the advice of council of ministers except his discretionary powers The council of Ministers Article 163 of the constitution lays down that there shall be a council of ministers with Chief Minister as its head to aid and advanfe the governor in exercise of his functions. At the head of the state council of ministers is the chief minister. The constitution does not empower the president to exercise any discretionary function but allows the Governor to do. The governors decision as to whether he should act in his discretion in any particular matter is final, it would be possible , for a governor to act without ministerial advice in certain other matters according to circumstances , even though they are not specifically mentioned in the constitution as discretionary functions. e.g. if he considers that the bill in question would affect the powers of the union or contravene any provisions of the constitution even though his ministry may be of a different opinion. The State Legislature The state legislature consists of Governor and legislative assembly but in some state like Bihar, Maharastra, Karnataka and Utter Pradeh , Jammu and Kashmir have a legislative council. Thus most of the state legislature is unicameral however the constitution allows for the abolistion as well as the creation of the legislative council by a resolution of the legislative assembly of the state concerned passed by a special majority followed by an act of parliament. The membership of the council should not be more than one-third of the legislative assembly but not less than 40.

It will be a partly elected and nominated body. The legislative assembly of each state shall be composed of members chosen by direct election on the basis of adult suffrage and the number of members shall not be more than 500 nor less than 60. The assembly of Goa and Mizoram shall have only 40 members. The governor may reserve a bill for the consideration of the President and in one case it has been made compulsory. viz where the law in question would derogate from the powers of the High Court under the constitution. In case of money bill, so reserved, the president may either declare his assent or withhold his assent however no time frame has been mentioned. But in the case other than money bills, the president may, instead of declaring his assent or refusing it, direct the governor to return the bill to legislature for reconsideration. In the latter case the legislature must consider the bill with 6 months and if it is passed again , the bill shall presented to the president again but it shall not be obligatory upon the President to give his assent in this case too.

Quorum: It is the minimum numbers of members required to conduct business of the house. It is 10 or one-tenth of the membership of the house concerned The government of Delhi has all the legislative powers in the state list except entries 1(public order), 2(police) and 18(Land)

Integrated Judiciary
Introduction Though we have adopted a Federal system, the constitution has not provided for a double system of courts as in the United States. Under our constitution there is a single integrated system of courts for union as well as the states which administer both union and state laws. The Supreme Court (SC) Parliament has the power to make laws regulating the constitution, organisation of the jurisdiction and powers of the Supreme Court. The SC consists of the chief justice and not more than 25 other Judges. The President has the power to appoint High Court judges as Ad hoc judges for a temporary period if there is a lack of quorum of permanent judges in the supreme court. Qualifications a) Should be a Citizen of India b) A distinguished Jurist or c) Has been a High Court for at least 5 years or d) Has been an advocate of a High Court for at least 10 years No minimum age is prescribed for appointment as a Judge of SC or any fixed period. Once appointed, a judge of SC may cease to be so, on the happening of any one of the following a) On attaining the age of 65 years; b) On resigning his office by writing addressed to the President c) on being removed by the President upon an address to that effect being passed by a special majority of each house of parliament viz a majority of the total membership of that house and by majority of not less than two-thirds of the members of that house present and voting. The ground upon which the removal may take place are proved misbehaviour and incapacity. A Judge of S.C. shall not plead or act in any court or before any authority within the territory of India

Jurisdiction of the Supreme Court The jurisdiction of the Supreme Court can be divided into the following. a) Original Jurisdiction: The original jurisdiction of the Supreme Court is dealt with in Art 131 of the constitution. These are disputes between different units of the federation . The original jurisdiction shall be exclusive with means that no other court in India shall have the power to entertain any such suit. The constitution excludes from the original disputes relating to waters of inter state rivers or river valley ,matters referred to the Finance Commission, adjustment of certain expenses between Union and States and a dispute arising out of any treaty, agreement, covenant, engagement; sanad or other similar instrument which having been entered into or executed before the commencement of the constitution. b) Appellate: As a court of appeal, The Supreme Court is the final appellate tribunal of the Land. This may be further divided under the following heads. 1) Case involving interpretation of the constitution Civil, criminal or otherwise. 2) Civil irrespective of any constitutional question. 3) Criminal Cases irrespective of any constitutional question. Art 136(i) says that not withstanding anything contained in this chapter, the Supreme Court, in its discretion, grant special leave to appeal from any judgement, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. c) Advisory jurisdiction: The President may under article 143(1) make a reference to Supreme Court for its consideration and opinion for any question of law or fact which is of such a nature and of such public importance that is expedient to obtain the courts opinion on it. A bench of at least 5 judges must hear such a references and the opinion of the S.C. is not binding on the president. The S.C is entitled to decline to answer a question if it is superfluous or unnecessary. Under the clause (2) of Article 143 the president may refer to S.C. for its opinion on disputes arising out of any treaty, agreement etc. which has been entered into or executed before the commencement of the constitution. In such cases it is obligatory on the part of S.C to give its opinion to the President. No court in India is bound by such opinion of S.C.

Writ Jurisdiction: Under Art. 32 of the constitution, the S.C can entertain an application for the issue of a constitutional writ for the enforcement of Fundamental Rights.

The High Court. Art 214 says that there shall be a High court in each state but the parliament has the power to establish a common High Court for two or more states. The High court stands at the head of judiciary in the state. Every High court shall consist of a Chief Justice and such other judges as the president of India may from time to time appoint. The constitution also provides for additional and acting judges. The president shall appoint every judge of the high court. In making such appointment the, the president shall consult the chief justice of India, the Governor of the state (and also the chief justice of that high Court for the appointment of judge other than Chief Justice). A Judge of the high court holds office until the age of 62. Qualifications : He must be a citizen of India, not being over 62 years and must have 1) held for at least 10 years a judicial office in the territory of India or 2) has been for at least 10 years as advocate of a High Court or of two or more such courts in succession Art. 217(2). Jurisdiction The High courts are primarily courts of appeal. Only in matters of admiralty , probate, matrimonials, contempt of court ,contempt of court, enforcement of fundamental Rights and cases transferred from lower court involving the interpretation of the constitution ,they have original jurisdiction. Every High Court has a power of superintendence over all courts and tribunals throughout the territory in relation to which it exercises jurisdiction, excepting military tribunals (Art 227). However, this jurisdiction of the has been taken away in respect of Administrative tribunal. The Art 226 empowers the High Court to issue Writs not only for the enforcement of the fundamental rights but also where an ordinary legal right has been infringed.

Distribution of legislative Powers between Union and states


The distribution of legislative powers between the Union and State proceeds on two lines. 1) The territory over which the Union and states have their jurisdiction 2) The subjects to which their respective jurisdiction shall extend Taking up the territorial aspect, the jurisdiction of the state legislature is limited to the territory of the states but in case of parliament, it has the power to legislate for whole or any part of the territory of India which includes not only the states but also the union territories. Parliament also posses the power of extra-territorial legislation, which means that laws made by parliament will govern the Indian citizen and their properties situated abroad. As regards the subjects of legislation, the constitution adopts from the Government of India act, 1935, a threefold distribution of legislative powers between the Union and states viz the Union list, State list and the Concurrent list. List I or the Union list includes 99 subjects over which the union shall have exclusive power of legislation. These include defence, foreign affairs, currency and coinage, Union duties and taxes. List II or the state List includes 61 subjects over which state legislature shall have exclusive power of legislation such as Public order and police, Local government, Public health and sanitation, agriculture, forests, fisheries, state taxes and duties. List III or concurrent list gives concurrent powers to union and state legislatures over 52 items such as Criminal law and procedure, Civil Procedure, marriage, contracts, economic and social planning education. In case of overlapping of a matter as between the three list, predominance has been given to Union legislature. In the concurrent sphere, if, however, the state law was reserved for the assent of the President and has received such assent, the state law may prevail notwithstanding such repugnancy, but it would still be competent for Parliament to override such state law by subsequent legislation. The constitution vest the residuary power i.e. the power to legislate with respect to any matter not mentioned in the above lists with the Union. Expansion of legislative power of Union a) In the National Interest. Parliament shall have the power to make laws with respect to any matter included in the state list, if the council of states declares by a resolution of 2/3 of its members present and voting, that is necessary in the National interest. Each resolution will give a lease of one year to the law in question. Art(249).

b) Under a Proclamation of Emergency c) By agreement between states. d) To implement treaties e) Under a proclamation of failure of constitutional machinery (under presidents Rule) In General, the executive power between the Union and States follow the scheme of distribution of the legislative powers. The executive power of state shall extend only to its own territory and with respect to those subjects over it has legislative competence (Art 162). However in the concurrent sphere, the executive function shall ordinarily remain with the states, but subject to the provisions of the constitution or of any law of parliament conferring such function expressly upon the union. Distribution of financial powers Financial relation between the Centre and State are defined in Part XII of the constitution. The states are absolutely entitled to the proceeds of the taxes on the state list and the proceeds of the union list cannot be fully retained by the union but has to be assigned, or may be assigned, wholly or partly to the states because the yield of different taxes coming within the state legislative sphere may not be large enough to serve the purpose of a state. So the constitution provides for the distribution of tax-revenue between the union and state as follows. Taxes belonging to the union exclusively 1. Customs 2.Corporation tax 3. Taxes on capital value of assets of individuals and companies 4. Surcharge on income tax, etc 5. Fees in respect of matters in the Union List. Taxes belonging to the states exclusively 1. Land revenue. 2. Stamp duty except in documents included in Union List 3. Succession Duty, Estate duty and income tax on agricultural land 4. Taxes on passengers and goods carried on inland waterways 5. Taxes on lands and buildings, mineral rights

6. Taxes on animals and boats, on road vehicles, on advertisement, on consumption of electricity, on luxuries and amusements etc. 7. Taxes on entry of goods into local areas 8. Sales tax 9 Tolls 10. Fees in respect of matters in the state list 11. Taxes on profession, trade, etc not exceeding Rs 2500 per annum Duties levied by union but collected and appropriated by the states Stamp duties on bills of exchange. Etc and Excise duties on medicinal and toilet preparations containing alcohol. Taxes levied as well as collected by the union, but assigned to the state within which they are leviable. 1. Duties on succession to property other than agricultural land. 2. Estate duty in respect of property other than agricultural land. 3. Terminal Taxes on goods or passengers carried by Railway, Air or sea. 4. Taxes on railway fares and freights 5. Taxes on stock exchanges other than stamp duties 6. Taxes on sales of and advertisement in newspapers 7. taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-state trade or commerce 8. Taxes on inter-state consignment of goods. Taxes Levied and collected by union and distributed between union and states. 1. Taxes on income other than on agricultural land (Art 270) 2. Duties of excise as are included in the Union list , excepting medicinal and toilet preparations may also be distributed , if Parliament by law so provides (Art 272). Even after the assignment to the states a share of the central taxes, the resources of all states may not be adequate enough. The constitution, there fore, provides for grants-in-aid shall be made in each year by the union to such states as Parliament may determine to be in need of assistance, particularly, for the promotion of welfare of tribal areas, including special grants to Assam in this respect (Art. 275).

Finance Commission
Articles 270,273,275 and 280 provide for the constitution of a finance commission at 5-year intervals to recommend the president certain measures relating to the distribution of financial resources between the union and the states. The constitution of the Finance commission is laid down in Art. 280., The chairman must be a person having experience in public affairs; and the other four members must be appointed from amongst the following. 1) A high court judge or one qualified to be appointed as Such 2)a person having special knowledge of finances and accounts of the government 3) a person having wide experience in financial matters and administration 4) a person having a special knowledge of economics. It shall be the duty of the Finance commission to advice the President on matters such as 1) the distribution between the Union and states of the net proceeds of taxes that is required to be shared. 2) The principles which should govern the grants in aid 3) the measures to needed to augment the consolidated fund of a state to supplement the resources of Panchayats and Municipalities in a state 4) Any matter referred to the commission by the president in the interest of the state.

Emergency
An emergency due to war, external aggression or armed rebellion (Art 352). The constitution provides for the three different of abnormal situations which call for a deperature from the normal governmental machinery set up by the constitution. 1) An emergency due to war, external aggression or armed rebellion (Art 352). This may be referred to as national emergency. A proclamation of emergency may be made by the president at any time if he satisfied that the security of India or any part thereof has been threatened by war,external aggression or armed rebellion. It may be made even before the actual occurrence of any such disturbance. But no such emergency can be made by the president unless the union ministers of cabinet rank headed by P.M. recommend to him in writing that such a proclamation should be issued. Every such proclamation should be placed before both houses of the parliament and shall cease to be in operations unless it is approved by resolutions of both houses of parliament within one month from its date of issue by special majority. It will give a life of 6 months from the date of approval. The President can also issue a proclamation of revocation any time that House of the people passes a resolution disapproving of the issue or continuance of the proclamation. The effects of such proclamation are a) The power of union extends to give directions to any state on any matter and the manner in which the executive power thereof is to be exercised. b) Parliament may, by law, extend the normal life of the houses of the people for a period of one year at time and not extending in any case beyond a period of 6 months after the proclamation ceases to be in operation c) The Parliament shall have the power to legislate as regards State List (list II) d) The parliament has powers or imposing duties, upon the executive of union in respect of any matter. e) The president shall have the power to modify the provisions relating to the allocation of the financial resources. f) The Art 358 provides that the state would be free from the limitations imposed from the limitations imposed by Art 19 and Under Art 359 the right to move to the court cab be suspended by the order of the president.

Proclamation of failure of constitutional machinery under Art 356. It is the duty of the union to ensure that the government of every state is carried in accordance with the constitution.(Art 355). So, the president is empowered to make proclamation, when he is satisfied that the government of state cannot be carried in accordance with provisions of the constitution either on the report of the Governor of the state or otherwise (Art 356) Such proclamation may also be made by the president where any state has failed to comply with, or to give effect to, any directions given by the union, in exercise of its executive power to the state (Art 365). By such proclamation, the president may a) assume to himself all or any of the functions of the Executive of the state or of any other authority save the high court and b) declare that the powers of the legislature of the state shall be exercisable by or under the authority of parliament. The duration of such Proclamation shall be for 2 months. The duration can be extended by resolutions passed by both houses of parliament for a period of 6 months at a time, subject to the maximum duration of three years. But if the duration is sought to be extended beyond one year, two conditions have to be satisfied. a) proclamation of emergency is in operation b) when the election commission certifies that such resolution is necessary on account of difficulties in holding general elections to the states concerned. As per the 44th amendment the courts may now interfere if the proclamation is mala fide. The Supreme Court held that the proclamation can judicially reviewed to examine 1) whether it was issued on the basis of any material 2) whether the material was relevant 3) whether it was issued mala fide. Financial emergency: If the president is satisfied that a situation has arisen whereby the financial stability or the credit of India or of any part of thereof is threatened, he may by a proclamation make a declaration to that effect Art 360(1).

The consequences of such declaration are a) During the period, the executive authority of the union shall extend to observe such canons of financial propriety as may be specified in the directions. b) any such direction may also include 1) a provision requiring the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of the state 2) a provision requiring all money bills or other financial bills to be reserved for the consideration of the President after they are passed by the state legislature c) It shall be competent for the president during that any such proclamation is in operation to issue directions for the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of the union including the judges of the Supreme Court and high court. The duration of such proclamation will be similar to that of Proclamation of emergency

Procedure for Constitution amendment


Introduction The provisions of the constitution is not static, it is subjected to change by the process of amendment of the constitution, which is prescribed in the Art. 368. The changes in the constitution can be done in 2 ways. 1) Alteration of certain provisions of the constitution not to be deemed to be amendment of the constitution. This can be done by the union parliament in the ordinary process of legislation by a simple majority. 2) Only the process of amendment, which is prescribed in the Art 386, can change other provisions of the constitution. In all cases of amendment, A bill has to be passed by the union parliament by a special majority. In case of certain provisions which affect the federal structure, ratification by the legislature of at least half of the states, before the bill is presented to the President for his assent. Either house of the parliament can initiate and bill for the amending the constitution. The bill has to be passed in each house by a majority of the total membership of house and by a majority of two thirds of the members of house present and voting. There is no separate constituent body for amending the constitution. No joint session for constitution for constitution amendment bill can be held. State legislature cannot initiate any bill for constitutional amendment. In case of certain provisions which affect the federal structure, ratification by the legislature of at least half of the states, before the bill is presented to the President for his assent. Some of the examples are The manner of election of President, the extent of executive power of the union and states, The supreme court and high court, distribution of legislative power between Union and states, and of the list in 7th schedule, representation of states in Parliament, and provisions of Art. 368 itself. Basic features theory Until the case of Golak nath, the supreme court held that no part of the constitution was unamendable and the parliament can amend provisions relating to the fundamental rights and the Art 368 itself. It was held that law in art 13(2) referred to ordinary legislation made by parliament as a legislative body and would not include an amendment of the constitution. In Golak nath case the majority of the judges held that in the above provisions a special constituent assembly must be convened. To remove this bottleneck the Parliament Passed the 24th constitutional amendment act which took away the power of judicial review of the Courts in

respect of the validity of the constitutional amendment on the ground that it takes away or affects a fundamental rights. When the validity of the this amendment came up before the Supreme Court in the Kesavanandas case the majority of the Judges upheld the validity of the 24th amendment Act but held that there are certain basic features of the constitution , which cannot be altered in exercise of the power to amend it under Art 368. Some of the basic features are sovereignty and territorial integrity of India, the fedral system , judicial review, Parliamentary system of government etc.

The special position of Jammu and Kashmir


Article 370 The state of Jammu and Kashmir is a part of the territory of India as defined in Article 1 of the constitution. However it continued to have a special status both in regard to its internal constitution as well as to its relation with the centre. Article 370 defines the states special status. This is due to the peculiar status created by Pakistan aggression and the accession to the state was based on the formal request of Maharaja Hari Singh and was in full conformity with procedure laid down in India Independence act, 1947 and thus became the integral part of India. The presidential order of 1954 & 1958 aimed at integrating the state with rest of India however the state has its own constitution. Present position The union does not have jurisdiction in most of the items enumerated in the Concurrent list. The residuary power and legislation with respect to preventive detention belongs to the state legislature. Art 249 has been extended to Jammu and Kashmir so the jurisdiction parliament extends to that in the national interest. Parliament cannot make law with out the consent or concurrence of the state legislature 1) Alteration of the name of the territories of the state 2) International treaty or agreement affecting the disposition of any part of the territory of the state. 3) No proclamation of emergency under art 352 4) No decision affecting the disposition of the state 5) Art 365 & Art 360 The provisions relating to Directive principle of state policy and Art 19(1)(f) and 31(2) shall not apply to J&K. Thus the fundamental right to property is still guaranteed in this state. No amendment of the constitution shall extend to J&K unless it is so extended by an order of the president.

By amendments of the constitution order, the jurisdiction of the comptroller and auditor General, of the election commission and special leave jurisdiction of the Supreme Court have been extended to the state of Jammu & Kashmir.

Electoral Laws
Elections The Election Commission shall have the power of superintendence , direction and conduct of all elections to Parliament and the State legislatures and of elections to the offices of the president and Vice president (Art 324(1)). The Election commission shall consists of c hief election commissioner and such other commissioners as the president may from time to time fix. The constitution provides that the chief Election commissioner cannot be removed from his office except in like manner and on like grounds as a judge of the Supreme Court. Electoral Laws & System: Elections are conducted according to the constitutional provisions, supplemented by laws made by Parliament. The major laws are Representation of the People Act, 1950, which mainly deals with the preparation and revision of electoral rolls, the Representation of the People Act, 1951 which deals, in detail, with all aspects of conduct of elections and post election disputes. Appointment & Tenure of Commissioners The President appoints Chief Election Commissioner and Election Commissioners. They have tenure of six years, or up to the age of 65 years, whichever is earlier. They enjoy the same status and receive salary and perks as available to Judges of the Supreme Court of India. The Chief Election Commissioner can be removed from office only through impeachment by Parliament. All Election Commissioners have equal say in the decision making of the Commission. All the expenditure relating to actual conduct of elections to Parliament is borne entirely by the Union Government while for the elections being held only for the State Legislature, the expenditure is borne entirely by the concerned State. In case of simultaneous elections to the Parliament and State Legislature, the expenditure is shared equally between the Union and the State Governments. The Election Commission prepares, maintains and periodically updates the Electoral Roll, which shows who is entitled to vote, supervises the nomination of candidates, registers political parties, monitors the election campaign, including candidates funding. It also facilitates the coverage of the election process by the media, organises the polling booths where voting takes place, and looks after the counting of votes and the declaration of results. All this is done to ensure that elections can take place in an orderly and fair manner.

Eligibility of candidates to Legislatures Any Indian citizen who is registered as a voter and is over 25 years of age is allowed to contest elections to the Lok Sabha or State Legislative Assemblies. For the Rajya Sabha the age limit is 30 years. Candidates for the Rajya Sabha and Vidhan Sabha should be a resident of the same state as the constituency from which they wish to contest. Every candidate has to make a deposit of Rs. 10,000/- for Lok Sabha election and 5,000/- for Rajya Sabha or Vidhan Sabha elections, except for candidates from the Scheduled Castes and Scheduled Tribes who pay half of these amounts. The deposit is returned if the candidate receives more than one-sixth of the total number of valid votes polled in the constituency. Nominations must be supported at least by one registered elector of the constituency, in the case of a candidate sponsored by a registered Party and by ten registered electors from the constituency in the case of other candidates.

Election Petitions
Any elector or candidate can file an election petition if he or she thinks there has been malpractice during the election. An election petition is not an ordinary civil suit, but treated as a contest in which the whole constituency is involved. Election petitions are tried by the High Court of the State involved, and if upheld can even lead to the restaging of the election in that constituency Delimitation Delimitation is the redrawing of the boundaries of parliamentary or assembly constituencies to make sure that there are, as near as practicable, the same number of people in each constituency. In India boundaries are meant to be examined after the ten-yearly census to reflect changes in population, for which Parliament by law establishes an independent Delimitation Commission, made up of the Chief Election Commissioner and two judges or ex-judges from the Supreme Court or High Court.

Schedules
12 schedules of our constitution Schedules Remarks First List of States and Union territories Salary payable to President, Governors, Judges of Supreme Court and High Court, Speaker of Lok Sabha & Legislative assemblies, Chairman and deputy chairman of Rajya Sabha & legislative councils, CAG Oaths and Affirmations Seats allocated to each state in Rajya Sabha Provisions for the control & administration of Scheduled areas and Scheduled Tribes. Provisions for administration of Scheduled Areas in the states of Assam, Meghalaya, Tripura, Mizoram and Arunachal Pradesh Union list, State list and Concurrent list 22 languages. 1.Assamese 2.Bengali 3.Bodo 4.Dogri 5.Gujarati 6.Hindi 7.Kannada 8.Kashmiri 9.Konkani 10.Maithili 11.Malayalam 12.Manipuri 13.Marathi 14.Nepali 15.Oriya

Second

Third Fourth Fifth Sixth Seventh

Eighth

16.Punjabi 17.Sanskrit 18.Santhali 19.Sindhi 20.Tamil 21.Telugu 22. Urdu Ninth Tenth Eleventh List of acquisition laws Provisions for the disqualification on the ground of defection functional areas or subject necessary for the development and social justice in each Panchayat three types of Muncipal committees- Nagar Panchayat for transitional area, Muncipal council for smaller urban areas and Muncipal corporation for large urban areas

Twelfth

Some short notes to remember


National development council National development council is an extra-constitutional and extra legal body formed in 1952, as an adjunct to the planning commission, to associate the states in the formulation of plans. The functions of the council are to strengthen and mobilise the efforts and resources of the nation in support of the plans and to promote common economic policies in all vital spheres and to ensure the balanced and rapid development of all parts of the country. National integration National integration council is a non-constitutional body created to deal with the welfare for minorities on an all-India basis.

Planning commission Planning commission is an extra constitutional and non statutory body set up a resolution in 1950 of the union cabinet by Prime Minister Nehru with himself as its first chairman, to formulate an integrated five year plan for economic and social development and to act as an advisory body to the Union Government in this behalf. Inter-state council Article 263 empowers the President to create inter-state council to serve the public interest. Constitution gives three-fold duties that may be assigned to this council. a) the duty of inquiring into and advising upon disputes which may have arisen between states b) to Investigate and discus subjects of common interest between union or states or between two or more states inter se c) To make recommendation for co-ordination of policy and action relating to such subject. This council consists of 6 union cabinet ministers and the chief ministers of all the states All India services Article 312 provides the parliament to create one or more all India service like IAS,IPS etc. to impart greater cohesion to the federal system and greater efficiency to the administration in both the union and states Zonal council Zonal council have been established by the states reorganisation Act, 1956 to advise on matters of common interest to each of the five zones into which the territory of India has been divided. Northern, Southern, Eastern, Western and central. Each zonal council consists of the chief minister and two other ministers of each states in the zone and the administrator in case of union territory .The union home minister is the chairman of this council. Besides these, there is North Eastern Council set up in 1971 , to deal with the common problems of North Eastern Councils. River Board The River Boards Act 1956 provides for the establishement of a River Board for the purpose of advising the Governments interested in relation to the regulation or development of an inter state river or river valley. Water disputes Tribunal Water Disputes Act, 1956 provides for the reference of an inter state river dispute for arbitration by a Water Dsputes Tribunal, whose award should be final according to art 262(2A)

Some important articles Art 350 A: to provide instruction in the mother tongue at the preliminary stages of education of children belonging to linguistic minority. Art 351 : To promote the spread of the Hindi language Art 335 : enjoins that the claim of SC and ST should be taken into consideration while making appointments . Art 131 provides for the judicial determination of one class of disputes between states by vesting the Supreme Court with exclusive jurisdiction. Art 262 provides for the adjudication of one class of such disputes by an extra-judicial tribunal .e.g. disputes regarding control of waters, any inter-state river or river valley Art 263 provides for the prevention of inter-state disputes by investigation and recommendation by an administrative body. The executive functions of the government of India can be entrusted to the state government with their consent (Art 258). A state government with the consent of the government of India , confer administrative functions upon the latter, relating to a state subjects (Art 258 A) Art 285 says that the property of the Union shall, save insofar as parliament may by law otherwise provide ,be exempt from all taxes imposed by a state or by any authority within a state. Similarly the property of a state is immune from union taxation. However, if a state enters into a trade or business it shall not be exempt from union taxation.

Вам также может понравиться