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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
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
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to 19
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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.
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Right to property 31
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
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.
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 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.
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.
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
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.
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
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
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.