Dinesh Rajasekaran / Constitutional Laws 2 / LLB II YEAR / Dr.
Ambedkar Law College / 9551386967
THE UNION EXECUTIVE: (12/14)
 President of India, Art 52-78
 Vice President of India, Art-123
 Council of Ministers, Art-361
 Presidential form – USA
 Real Executive, Head of the state and head of
the executive
 Parliamentary form-U.K, India
 President is nominal executive, cabinet is real
executive
Election of President
 Qualifications for president- Art.58
 Citizen of India
 Has completed age of 35 years
 Qualified for election as a member of House of
people
Conditions for President Office- Art.59
 Shall not be a member of either house of
parliament or house of legislature or any state
 Should not hold any office of profit under Govt
of India
 Shall be entitled without payment of Rent to
the use of his official residence
 Entitled to emoluments, allowances and
privileges as may be determined by parliament
by law.
 These shall not be diminished during his term
 Emoluments is Rs.150000/-
Manner of Election of President- Art.54/55
 Art-54, President Shall be elected by members
of electoral college consisting of,
o Elected members of both house of
parliament
o Elected members of the legislative
assemblies of the state
 Proportional representation by means of single
transferable vote
 Secret ballot system
 Members of upper house in the state is not
eligible for voting
 Legislative assemblies of the state are eligible
to vote
 President is eligible to become a member of
electoral college and
 SC has said that the election of the president
can be held even when due to the dissolution
of a state legislative assemble under Art.356,
its members are not eligible to cast votes at the
election of president.
 Art-55, provisions relating to manner of
election of president.
 Proportional representation by means of single
transferable vote by secret ballot
 Votes in multiples of 1000 in the quotient
obtained by dividing the population of the
1
state by the total number of the elected
members of assembly.
 The remainder should not be less than 500
 Dividing the total number of votes assigned to
the members of the legislative assemblies of
the state by Population of the state *1/1000
 300005225/282*1/1000=106 (Reminder 402
being less than 500 is being ignored)
Art.57, Eligibility for Re-election
Art-60, Oath or Affirmation by President
Art-56, Term of office of President
 5 Years from the date of Taking charge of his
office
 He has to continue to hold office until his
successor enters upon his office
 He is also eligible for re-election
 May by hand address his resignation to V.P
 It should be communicated to Speaker of
House of people
 He can be removed by the process of
impeachment for violation of constitution
Art-61, Procedure for Impeachment
 The charge shall be preferred by either house
of parliament
 No such charge shall be preferred unless,
o A resolution which has been moved
after at least 14 days’ notice in writing
signed by not less than 1/4th of total
number of members Such resolution
passed by a, majority of not less than
2/3rd of the total membership of the
house.
 The other house shall investigate the charge or
cause the charge to be investigated and the
president shall have the right to appear for
investigation
Art-62, Time of Holding election to fill vacancy
in the office of president and the term of
office of person elected to fill casual vacancy
 By expiry of Term
 by reason of death, resignation or removal
 Election to be completed before expiry of 6
months
Art-70, Discharge of President’s function on
other Contingencies
Art-71, Doubts and disputes relating to the
Election of president and Vice-president
 71.1, all doubts to be enquired by SC
 71.2, if the election is declared void by SC, acts
done by him before are not invalidated
 71.3, Parliament by law may regulate it
 71.4, Election of President and VP shall not be
called in question on the ground of existence
of any vacancy for whatever reasons among
the members of electoral college electing him
Dinesh Rajasekaran / Constitutional Laws 2 / LLB II YEAR / Dr.Ambedkar Law College / 9551386967
Art-361, Protection and immunities of
President and Governors
 He shall not be answerable to any court for the
exercise and performance of powers and
duties of his office
 No criminal proceedings
 No process for arrest or imprisonment
 No civil proceedings in which relief is claimed
against President or Governor
(Rameshwar Prasad vs UOI)
Powers, functions and Constitutional position of
president of India:
Legislative Powers (6/14)
 Parliament consist of 2 houses known as
council of states and House of people and
president
 Art-102, provides for disqualification for
membership of either house of parliament
 Art-103, if any question arises as to whether a
member of either house of parliament has
become subject to any disqualification
mentioned in Art 102(1)
 Art-180, empowers the president to nominate
12 members in the council of states.
 President cannot dissolve Council of states
 President from time to time summon each
house of parliament to meet at such time and
place as he thinks fit but six months shall not
intervene between its last sitting in one session
and the date appointed for its first sitting in the
next session.
 Certain bills cannot be introduced in
parliament unless the recommendation of the
president has been received
o Money bills
o Bills relating to formation of new
states, alteration of new states, prior
recommendation of president is
necessary
o Art-274, recommendation of a bill or
an amendment affecting taxation in
which states are interested
o Art.117.3, a bill passed into operation
which would involve consolidated fund
of India, shall not be passed by either
house of parliament unless the
president has recommended.
 Powers of president with respect to enactment
of legislation by the state legislature may be
summed up as follows,
o Art-200, the governor is bound to
reserve a bill for consideration of
president, if in his opinion it becomes
law.
2
o Art-288, the legislature of a state may,
by law impose or authorise the
imposition of any such tax but no such
law shall have any such effect, unless it
has received assent of the president.
o Art-304.b, legislature of a state can
impose such reasonable restrictions
on the freedom of Trade, commerce or
intercourse in public interest with
president assent.
o Art-360, any proclamation of financial
emergency is in operation, the
president may direct that all money
bills or other bill to which the provision
of Art.207 apply to be reserved for the
consideration of the president after
they are passed by state legislature.
o Art-77.2, orders and instruments are
made and executed in the name of
president of India
o Art-77.3, president shall make rules for
the more convenient transaction of
business of the government of India
o Art.118.3, president after consultation
with the Chairman of council of states
and speaker of House of people, may
make rules as to the procedure with
respect to joint sittings of and
communications between 2 houses.
o Art.309- Recruitment of UPSC staffs
who are competent to work with
president
o Art.318- The president determine
number of members in commission,
conditions of service
Power to promulgate ordinance:
 Art.123-During recess of parliament and
serious situation arising when House of
parliament are not in session
 If both the house of parliament are not in
session
 The circumstances exist which render it
necessary for him to take immediate action
 An executive act may be declared invalid on
the ground of anon-application of mind but a
legislative act cannot be declared on the
ground of anon application of mind.
 What cannot be done by parliament, the
president cannot do in his power
 Ordinance made by president has to be laid
down before both houses of parliament
 It shall cease to operate at the expiration of 6
weeks from the reassembly of parliament or if
before the expiration of that period resolution
disapproving it are passed by both houses,
Dinesh Rajasekaran / Constitutional Laws 2 / LLB II YEAR / Dr.Ambedkar Law College / 9551386967
upon the passing of the second of those
resolutions.
Executive Powers:
 Union executive consists of President of India
and Council of Ministers at the Head.
 He is Constituent part of the Union executive
 Art.53.1, powers of president shall be executed
by him or by officers subordinate to him
 Ministers are officers subordinate to him and
they are called Public Servants
 He is only the nominal head and not real
executive head of state as in USA
 Art.74, there shall be council of ministers with
Prime minister as head to aid and advise the
president who shall in exercise of his functions
act in accordance with such advice.
 Art.77.1, all executive actions will be taken in
the name of president of India
 Art.75.1, the prime minister shall be appointed
by president and other council of ministers
shall be appointed ion advise of the prime
minister
 Art.75.2, the minister shall hold office during
the pleasure of president
 Art.78, it is the duty of PM to furnish to the
president the information regarding the affairs
of his government.
o All decisions of council of ministers
o Reg administration of the affairs of the
union
o To submit for consideration of the
council of ministers
 Art.53.2- He is the supreme commander of the
defence forces of the union shall be vested in
the president and the exercise thereof shall be
regulated by law.
 He represents India in International affairs
 He appoints Indian Representatives and
receives Ambassadors and other diplomatic
representatives from foreign countries.
 All treaties and International agreements are
signed by presidents name
Financial power:
 Art.117.1 a Bill or amendment making
provision for any of the matters specified in
sub clause a to f of clause 1 of Art.110 shall not
be introduced or moved except on the
recommendation of the president and a bill
making such provision shall not be required
under this clause for the moving of an
amendment making provision for the
reduction or abolition of any tax.
3
 Thus the money bill or finance bill cannot be
introduced or moved except on the
recommendation of the president.
 Art.117.3, a bill which is enacted and brought
into operation would involve expenditure from
the consolidated fund of India shall not be
passed by either house of parliament unless
the president has recommended to that house
the consideration of the bill.
 Art.112, President shall submit Annual
financial statement for Govt of India
 Art.274, Prior recommendation of president to
bills affecting taxation in which states are
interested.
 Art.280, the president within 2 years from
commencement of constitution by order
constitute a finance commission which
consists of chairman and four other members
to be appointed by president.
Judicial Powers:
 In appointment, removal, transfers of Judges
of HC and SC
Presidents power to Grant Pardons, reprieves etc.
 Art.72, empowers the president to give
pardons, reprieves, respites etc. and to
suspend, remit or commute sentences in
certain cases.
(Kuljit Singh vs Lt.Governor of Delhi)
President can give pardons to any person
convicted of any offence in all cases where the
punishment is by Court Martial, in all cases
where punishment or sentence is for an
offence against any law relating to a matter to
which the executive power of the union
extends, in all cases where the sentence is a
sentence of death.
 Art.161. confers on Governor of a state to
Grant Pardons, reprieves, respites etc. and to
suspend, remit or commute sentences in
certain cases.
 Governor cannot give pardon for Court martial
 Pardon means forgiveness
 Reprieve means temporary suspension of
punishment fixed by law
 Remission means reducing the amount of
punishment without changing its nature,
reducing 8 years to 6 years
 Commutation means changing the nature of
punishment, death to life imprisonment
(Sarat Chand Rabha vs Kagendra Nath)
(Harban Singh vs S.O.UP)
(Sher Singh vs S.O.Punjab)
(Kehar Singh vs UOI)
Dinesh Rajasekaran / Constitutional Laws 2 / LLB II YEAR / Dr.Ambedkar Law College / 9551386967
 (Epuru sudhakar vs Covt of UP)
President’s order of pardon under Art.72 or
Governor’s order of Pardon under Art.161 can
be impugned on following grounds,
o That the order has been passed
without application of mind
o That the order is mala fide
o That the order has been passed on
extraneous or wholly irrelevant
considerations
o That the relevant materials have been
kept out of considerations
o That the order suffers from
arbitrariness
(Bakhtawar Trust vs M.D.Narayan)
(S.O.Bihar vs Bihar pensioner’s samaj)
Constitutional position of president of India:
 Art.74.1, the advice of Council of Ministers is
binding on the president
 The president may require the council of
ministers to reconsider the advice given to him
but the president will be bound to act in
accordance with the advice tendered after
such reconsiderations.
 It cannot be enquired into any court.
(R.K.Jain vs UOI)
When can act according to his own discretion:
 In certain exceptional circumstances
 In appointing the PM, the president enjoys no
discretion where a party has a clear majority in
House of the people.
VICE-PRESIDENT OF INDIA:
 Art-63, makes it clear that there shall be a vice-
president of India
Powers and Functions:
 Art-64, to be ex-officio Chairman of the Council
of states
 Shall not hold any other office of profit
 Art-65, He discharges the functions of
President
o On his death, resignation or removal
o Until the president resumes his duties
o Entitled to emoluments as prescribed
by parliament by law
Election of VP:
 Art-66, elected by members of electoral
college consisting of the members of both
houses of parliament
 VP shall not be a member of either House of
parliament or of a House of the legislature of
any state.
 A citizen of India
 Has completed age of 35 years
4
 Qualified for election as a member of council
of states
 Should not hold any office of profits
Term of Office of VP:
 Art.67, hold office for 5 years
 Resignation must be in writing
 May be removed from office by a resolution of
the Council of states
 Continues to hold office until his successor
enters upon his office.
Time of holding election to fill vacancy in the office of
VP and the term of office of person elected to fill casual
vacancy- Art.68
Oath or affirmation by the Vice president- Art.69
Dischareg of presidents function in the event of
occurrence of Vacancy in the office of both the
President and Vice-President, Art-70
 President-VP-SC CJ-Senior most Judge in SC
(Arun vs UOI)
Council of Ministers:
 Prime minister and other minister
 It consists of cabinet ministers, state ministers
and deputy ministers
 Council of Ministers is a large body, there is a
smaller body called cabinet which consists of
Principal Ministers
 The cabinet is policy making body and its
decisions are binding on all the ministers and
regarded as the decisions of the whole council
of ministers and the whole council of ministers
is collectively responsible to the house of the
people for them.
Appointment and Dismissal:
 Art.75.1, PM to be appointed by president and
all other ministers shall be appointed by
president on advice of PM
 Art.75.5 the SC has made it clear that a person
who is not a member of either House of
parliament can be appointed as the PM for a
period of 6 months.
 Art.75.2 provides that the minister shall hold
office during the pleasure of the president.
 Art.74.1 requires the president to have a
council of ministers with the PM at the head for
aid and advice.
 Art.75.1A, the total number of ministers
including the PM in the council of ministers
shall not exceed 15% of the total number of
members of the house of people.
Dinesh Rajasekaran / Constitutional Laws 2 / LLB II YEAR / Dr.Ambedkar Law College / 9551386967
Attorney General of India:
 Art-76, the president shall appoint a person
who is qualified to be appointed a judge of the
SC to be Attorney – General for India
 He give advice on Legal matters with reference
to Constitution of India or any other law for the
time being in force.
 He has right of audience in all courts in the
territory of India
 He shall hold office during the pleasure of
president
 Receive such remuneration as the president
may determine.
 Art-88, he has right to speak in or take part in
proceedings of either house, any joint sitting of
the House and any committee of parliament of
which he may be named a member,
 But he shall not by virtue of this article is
entitled to Vote
UNION LEGISLATURE (PARLIAMENT)
 The union legislative assembly is called
Parliament.
 Art.79, provides for the establishment of the
union legislative, called parliament.
 Parliament consists of president of India and 2
house to be known respectively as the council
of state and the house of the people.
 Thus it consists of
o The President of India
o Council of State (Rajya Sabha)
o House of the People (Lok Sabha)
PRESIDENT OF INDIA
 He is not a member of any house
 But he is constituent part of parliament and
performs many important legislative functions
 He summons the house and gives assent to the
bills passed by two houses.
 He can prorogue the meetings of the said 2
houses and can dissolve the house of the
people
 The council of states is a continuing body and
it cannot be dissolved.
 President is required to exercise his powers
and discharge his functions on the advice of
council of ministers with PM as head
 In practice his powers are exercised by Council
of ministers
COUNCIL OF STATES (RAJYA SABHA)
 The Upper House is a continuing body and
cannot be dissolved by President
 It is constituted by Indirect election
 Max members is 250
5
 Art.80.3,It consists of 12 members to be
nominated by President from amongst the
persons having Special Knowledge or practical
experience in respect of such matters as
Literature, Science, art, Social service and upto
238 members of the states and of the union
territories.
 Art.80.2, allocation of sheets to be made as
given IVth Schedules.
 Art.80.1, members elected through single vote
system
 The term of member of council of states is 6
years
Importance of Council of States:
 It is said that Upper house is costly luxury and
should be abolished.
 The legislative body which represents the
people ought to be essentially one
 It cannot pass vote of no confidence against
the ministry
 Money bill cannot be introduced in Council of
states.
 Council of states within 14 days from date of
receipt of the bill return the bill to house of
people with its recommendation and the
house of people may thereupon either accept
or reject all or any of the recommendations of
the council of states.
 Bill passed by a majority of the total number of
members of both houses present and voting is
deemed to have been passed by both the
houses.
 Importance and utility of council of states
cannot be denied
 Council of states consists of representatives of
states and union territories.
 Council of states provides a check on hasty and
ill-considered legislation.
 It provides opportunity for full and free
discussions. Acts as a revision chamber.
Council of States and House of Lords:
 It is predominantly hereditary body consists
mostly hereditary peers created by the British
Crown while the council of states is an elected
body, although its members are not elected
directly by the people.
Indian Council of States and American Senate:
 They both are upper chambers, continuous
bodies not subject to dissolution, 1/3rd of their
members retire every 2 years, term of
membership is 6 years and they are presided
over by the VP of the country.
 American senate has whole power for
impeachment, the same is not seen with Indian
council of states.
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HOUSE OF THE PEOPLE (LOK SABHA)
It is the lower house of Parliament
Art.81 subject to the provisions of Art.331 the House of
people consists of
 Not more than 530 members choosen by direct
election from territorial constituency in the
states
 Not more than 20 members to represent the
union territories choosen in such manner
 House of people, unless sooner dissolved shall
continue for 5 years from the date appointed
for its first meeting and the expiration of the
said period of 5 years
 Art.326, elections to the House of People shall
be on the basis of adult suffrage, every person
who is a citizen of India and who is not less than
18 yrs of age
 The house of people has complete control over
money bill
 Money bill cannot be introduced in the council
of states and it can originate only in the House
of People.
 Both the houses take part in the election of the
president,
o The elected members of both houses
of parliament
o The elected members of the legislative
assemblies of the states.
Qualifications of Members:
 Art.84, a person may become member of
either House of Parliament if,
 He is a citizen of India
 He makes an Oath as specified in 3rd schedule
 He is not less than 30 years of age
 He possess such other qualifications as may be
prescribed in that behalf by or under any law
made by parliament.
(Kuldip Nayar vs UOI)
 Art.101, vacation of seats
 In writing addressed to Chairman or speaker
 Art.102, disqualifications
 If he holds any office of profit under
Government of India
 If he is of unsound mind
 If he is an undischarged insolvent
 If he is not a citizen of India
 If he is so disqualified by any law made by
parliament
Officers of Parliament:
 Chairman and Deputy chairman of the council
of states
 VP is the ex-officio chairman of council of
states
 Council of states elects a deputy chairman
6
 A member holding office as deputy chairman
of the council of states,
o Shall vacate his office if he ceases to be
member of the council
o May give resignation in writing
o May be removed from office by a
resolution of the council passed by
majority of members of council.
 Art.92.2 says that Chairman can speak in and
otherwise to take part in the proceedings of
the council of states while any resolution for
the removal of the VP from his office is under
consideration in the council, however he
cannot vote on such resolution or on any other
matter during such proceedings.
Speaker and Deputy Speaker of the House of People:
 House of people choose members of the House
to be respectively speaker and deputy speaker
thereof.
 In case of their absence, another member will
be choosen as speaker.
 A member holding office as speaker
o Shall vacate office of House of People
o Resign by writing
o May be removed by resolution with a
majority
 Salaries and allowances are paid from
consolidated fund of India
 Art.97, speakers and Dy. Speakers Salaries are
fixed by parliament by law
 Speaker should be impartial
 In case of serious disorder he can adjourn the
meeting of the house
 The issue as to whether or not a bill is Money
bill is decided by the Speaker and his decision
is final.
 Art.110.4 says Speakers certificate is
mandatory in any bills said as Money bill
 Art.98, secretariat of parliament
 Art.85, The president shall from time to time,
summon each house of parliament to meet at
such time and place as he thinks fit, but 6
months shall not intervene between its last
sitting in one session and date appointed for its
first sitting in the next session
 The president may from time to time,
o Prorogue the house or either house
o Dissolve the House of the people.
Legislative Procedure:
Ordinary Bill:
 Other than Money bill and Financial bill
 Other bills originate in both the houses
 Passage of bills through 3 stages called
Readings
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 Art.108, provides for Joint sitting of the Houses
 When one house rejects the bills
 It is to be done within 6 months
Money bill and Finance bill:
Art.110 says a bill shall be deemed to be a Money bill if
it contains provisions dealing with,
 Imposition, abolition, remission, alteration or
regulation of any tax
 Any financial obligations undertaken by Govt
of India
 Custody of Consolidated fund
 Appropriation of money out of consolidated
fund of India
 Declaring of any expenditure to be expenditure
charged on consolidated fund of India
 Audit of the accounts of the Union or the state
 Any matters incidental to any matters specified
above
 Any bill will not be a money bill if it only
imposes penalty
 Art.109, money bill cannot be introduced in
Council of states
 It can be introduces in House of the people
only
 Except on the recommendation of president
 Council of states has to return the bills within
14 days to House of people
 Art.111, assent of president to the bills passed
by president
 Art.113, relates to expenditure charged upon
consolidated fund of India, shall not be
submitted to vote of parliament.
 Art.114 talks about appropriation of bills
 Art.115 talks about supplementary, additional
or excess grants
 Art.116 talks about Votes on account, votes of
credit and exceptional grants
 Art.100, voting in houses, power of houses to
act notwithstanding vacancies and quorum
 Art.99, penalty for sitting and voting before
making oath of affirmation under Art.99
 Art.104, When not qualified and when
disqualified
Powers, functions and Position of Parliament:
 Art.327, power to make provision with respect
to elections to legislatures
 Art.329, bar to interference by Courts in
Electoral matters
 Art.118, Rules of procedure
 Art.83, duration of Houses of Parliament
 Art.85, sessions of parliament, prorogation and
dissolution
 Art.106, salaries and allowances of members
 Art.120, language to be used in parliament
7
 Art.121, restrictions on discussion in
parliament
 Art.122, courts not to inquire into proceedings
of parliament
UNION JUDICIARY
 Supreme Court – Art.124-147
 Art.50- Independent Judiciary is a must for
maintaining Rule of Law and Fair Judicial
Administration in country
 It control the arbitrary act of Administration
 It provides relief for any injury caused
 Guardian of Constitution
 All are equal before law
 If it is not independent it cannot punish the
executives in case they violate law
 It is the rule of fair justice that has been done
 It helps in establishment and maintenance of
Federal constitution
 It provides division of powers between central
and state government
 Appointment of judges through head of the
executive or independent commission, difficult
procedure for removal, no variations in
conditions of their service to their
disadvantage after appointment, prohibition
of any discussion with respect to conduct of
any judge
Appointment:
 Art.124.2, makes provision for appointment of
judges of Supreme court and High Court
 Chief justice of India shall always be consulted
 President is bound to consult chief justice of
India
(S.C.Advocates on Record Association vs UOI)
Consultation with collegium of Judges, which
consists of 2 senior most puisne judges of
Supreme Court. Collegium consists of Chief
justice of India and 4 senior most Puisne judges
of Supreme Court)
(S.P.Gupta vs UOI)
Inter-se seniority to be given due weightage
Summary:
 In appointment of Judges chief justice will have
primacy
 Chief justice opinion is not opinion of
Individual, it’s the opinion of Judiciary
 Collegium system plays a major role
 There should be consensus with chief justice of
India
 In exceptional case non recommendee of the
chief justice of India may be justified if its
accepted by president, tenure is likely to be
short, doubtful antecedents, Fitness
conditions.
Dinesh Rajasekaran / Constitutional Laws 2 / LLB II YEAR / Dr.Ambedkar Law College / 9551386967
 Combined seniority among all India basis
should be kept in view.
 Appointment should be of senior most judge of
supreme court
 Initiation made by CJ of India and CJ of HC for
their respective courts
 Only limited Judicial review is available for
appointments made
 Fixation of Judge strength in a HC is justiciable
Suggestions:
 The number of members in collegium has to be
increased
 Impeachment proceedings has to be followed
for removal with 2/3rd majority voting who are
present
 Salaries are paid as specified in second
schedule.
 Art.360, financial emergency reduce the
salaries and allowances as they are charged
under consolidated fund of India
Judicial Review:
 The authority of courts to declare void the acts
of legislature and executive if they are found in
the violation of the provisions of the
constitution.
 It is the power of highest court of a jurisdiction
to invalidate on the constitutional ground, the
acts of other Government agency within that
jurisdiction.
 It is the outcome of constitutionalism which
require the government under the law and not
the government above the law.
 Constitutionalism requires the supremacy of
law not only over the citizens of the country
but also on the government of the country.
 Art.13.1- All laws in force in the territory of
India immediately before the commencement
of the constitution, in so far as they are
inconsistent with the provisions of this part,
shall, to the extent of such inconsistency, be
void.
 Art.14, The courts give much emphasis to ultra
vires rule
 Art.245 makes it clear that the legislative
powers of parliament and of state legislature
are subject to provisions of constitution.
 Art.246 makes provisions in respect of the
distribution of powers between the parliament
and the state legislatures with seventh
schedule divided into 3 categories-Union, state
and concurrent list.
 Art.254, unless the law receives assent of
president the law made by state legislature to
the extent of repugnancy be void
8
 Art.248, the residuary power has been vested
in parliament.
(I.R.Coelho vs S.O.TN)
Courts can review the legislations included in
IXth schedule. Art.31B does not totally abridge
judicial scrutiny of the laws placed in IXth
sxhedule.
(M.Nagarj vs UOI)
(Kuldip Nayyar vs UOI)
 The validity of subordinate legislation may be
questioned on the ground stated below,
o It is ultra vires the constitution
o It is ultra vires the parent Act
o It is contrary to statutory provisions
o Law making power exercised in bad
faith
o It is not reasonable
o It goes against legislative policy and
does not fulfil the object and purpose
of enabling Act.
(Bombay dyeing Mfg. Co vs Bombay
Environmental Action Group)
 (Epuru Sudhakar vs Govt of AP)
The president’s power to Pardon under Art.72
and Governor power to pardon under Art.161
can be challenged on the following grounds,
o Order has been passed without
application of mind
o Order is malafide
o Order has been passed on extraneous
conditions
o Relevant material have been kept out
of consideration
o Order suffers from arbitrariness
 (Kokkanda B Poondacha vs K.D.Ganapathi)
The court has held that in the exercise of writ
jurisdiction under Art.226 or supervisory
jurisdiction under Art.227 the HC cannot
interfere with the interlocutory orders passed
by the subordinate courts without considering
question whether said order was vitiated due
to want of jurisdiction or trial court has
exceeded its jurisdiction or order passed by it
has resulted in failure of justice.
 In exercise of the power of Judicial review the
court should observe the self-restraint. Its
constraint should be,
o Whether a decision making authority
exceeding its power
o Committed an error of law
o Committed a breach of the rules of
Natural justice
o Reached a decision which no
reasonable Tribunal would have
reached
o Abused its power
Dinesh Rajasekaran / Constitutional Laws 2 / LLB II YEAR / Dr.Ambedkar Law College / 9551386967
 The afore said grounds may be classified as
under,
o Illegality
o Irrationality
o Procedural Impropriety
Test:
Wednesbury Principle
When a statute gives discretion to an administrator to
take a decision, the scope of judicial review will remain
limited. The interference is not permissible unless one
of the conditions is satisfied
 The order is contrary to law
 Relevant factors have not been considered
 Irrelevant factors have been considered
 Decision is one which no reasonable person or
authority would have taken
Proportionality Principle
By proportionality, we mean the question whether,
while regulating exercise of fundamental rights the
appropriate or least restrictive choice of measures has
been made by the legislature or the Administrator so
as to achieve the object of legislation or the purpose of
the administrative order, as the case may be.
Composition:
 At present the SC consists of 1 CJ and 30 other
judges.
 He should be a citizen
 Atleast 5 years as a Judge of HC or 2 or more
courts in succession
 Atleast 10 years as an Advocate in HC or 2 or
more courts in succession
 Is in the opinion of the president a
distinguished jurist.
 Art.125, the salaries of Judges shall be paid as
specified in 2nd schedule
 Tenure of office until he attains the age of 65
years
 Art.124.4, removal of a judge by Impeachment
proceedings
 Acting CJ shall be appointed by the president
of India
 Appointment of ad hoc judges will be made by
CJ in consultation with president of India
 Art.130, the seat of SC judge shall be at Delhi
or such other places or places, as the Chief
Justice of India may, with the approval of the
President, from time to time, appoint.
Jurisdiction and Powers of SC: (12/13)
 Art.129, Court of Record-Power to punish for
Contempt of Court
 Sec.2a of Contempt of Courts Act, 1971 talks
about Contempt of Court
9
 Sec.2b, Civil contempt and Sec.2c, Criminal
contempt
 Sec.11, Jurisdiction to punish for contempt of
High courts or subordinate courts
 Sec.10, provides that every High court shall
have and exercise the same jurisdiction,
powers and authority in accordance with the
same procedure and practice in respect of
contempt of courts subordinate to it
(Vinay Chandra Mishra Case)
(Delhi Judicial Service Association vs
S.O.Gujarat)
 Sec.16, a judge, magistrate or other person
acting judicially shall also be liable for
contempt of his own court or of any other
court in the same manner as any other
individual is liable
 The state and Ministers are not immune from
contempt
 Sec.12 says punishment will be extended to 6
months with fine which may extend to
Rs.2000/-
Original Jurisdiction:
 Art.32 empowers SC to issue directions or
orders or writs including writs in nature of
Habeas Corpus, Mandamus, Prohibition, Quo-
warranto and Certiorari
 Art.226, similar powers are vested with HC
 Art.71, SC has exclusive original jurisdiction to
decide all doubts and disputes arising out of or
in connection with the election of a president
or VP and its decision will be final.
 Art.131, In any dispute between Government
of India and one or more states or between
government of India and any state or states.
 Art.262, adjudication of Interstate rivers and
rivers valleys and water sources between the
states
Exceptions:
 Original Jurisdiction of SC under Art.131 does
not extend to a dispute arising out of any
treaty, agreement, covenant, engagement,
sanad or other similar instrument which having
been entered into
 Parliament by law exclude the jurisdiction of SC
in disputes between the states with respect to
use, distribution or control of the waters of any
inter-state river or river valley
 It does not extend to matters referred to the
Finance commission under Art.280
 Disputes between the Union and states
relating to adjustment of certain expenses
specified in Art.290
Dinesh Rajasekaran / Constitutional Laws 2 / LLB II YEAR / Dr.Ambedkar Law College / 9551386967
Appellate Jurisdictions:
 Appeal in Constitutional Matters, Art.132
 Appeal in Civil Matters, Art.133
 Appeal in Criminal Matters, Art.134
 Special Leave to Appeal, Art.136
 Power of Supreme Court to Review its
Judgement, Art.137
 Power of SC to Transfer cases, Art.139A
 Rulemaking power, Art.145
 Enlargement of the jurisdiction of the SC,
Art.138
 Conferment on powers of SC to issue certain
writs, Art.139
 Ancillary powers of SC, Art.140
 Law declared by SC to be binding on all courts,
Art.141
 Enforcement of Decrees and orders of the SC
and orders as to discovery, Art.142
 Civil and Judicial Authority to act in aid of the
SC, Art.144
 Attendance of Retired Judges at the sitting of
SC, Art.128
 Seat of SC, Art.130
 Officers and Servants and the expense of SC,
Art.146
STATE EXECUTIVE (6/12)
 Art.153-167, 213
 Art.152-State does not include the state of
Jammu and Kashmir
 Art.153-It states that there shall be a Governor
for each state.
 One person can be appointed as Governor for
2 or more states
 Art.156.1, The Governor holds office during the
Pleasure of president
 The pleasure of president should not be
violative of Art.14
 He holds office for a Term of 5 yrs from the
date on which he enters upon his office.
 He must be a Citizen of India and must have
completed 35 years of Age
 President cannot remove the Governor from
office without assigning any reason
Powers, Functions and Position of Governor:
 It is similar to those of President
 Governor is constitutional head of the state
and real power vests in Council of Ministers
 Art.154, Executive Power
 Art.356, State Emergency
 Art.168, Legislative powers- Governor is not
only a part of the state executive but also a part
of the state legislature
10
 Art.192, He decides the questions as to
disqualifications of a member of a House of the
state legislature
 Art.171, Governor can nominate some
members of the legislative council of the state
from among the persons having special
knowledge in respect of Literature, science,
Art.
 Art.174, The governor shall summon the house
or each house of the legislature
 Art.175.1, The governor may address the
legislative assembly
 Art.200, A bill passed by Legislative assembly
or in the case of state having a legislative
council has been presented to the Governor
for his assent.
 Art.166.2, Orders and other instruments made
and executed in the name of the Governor
 Art.187, the state legislature may by law
regulate the recruitment and conditions of
service of persons appointed to secretariat
staff of the house
 Art.208.3, empowers the governor to make
rules as to the procedures with respect to
communications between the 2 houses of the
state legislature
 Art.309, empowers the Governor to make rules
regulating the recruitment and conditions of
service of persons appointed to public services
and posts in connection with affairs of the
state.
 Art.318, empowers governor that the
conditions of service of a member of a public
service commission cannot be varied to his
disadvantage after his appointment.
Art.213, ordinance making power of Governor in case
the state legislature is not in session
 The ordinance will be invalid if it contravenes
any of the fundamental rights
 It shall cease to operate at the expiration of 6
weeks from the reassembly of the legislature
or if before the expiry of that period a
resolution disapproving it is passed by the
legislative assembly.
Financial:
 Art.202, Annual financial statement will be laid
 Art.207.1, A money bill cannot be moved
without the recommendation of Governor, no
recommendation is required for the moving of
an amendment making provision for the
reduction or abolition of any tax.
 Art.297.3, Bills which would involve expense
from consolidated fund of India requires
assent of president.
 Art.233/234, He is constitutional head of state
Dinesh Rajasekaran / Constitutional Laws 2 / LLB II YEAR / Dr.Ambedkar Law College / 9551386967
Judicial:
 Art.163, Governor appoints the District Judges
and other judges of the subordinate courts in
the state
 Art.161, Powers of Governors to grant
Pardons, Reprieves etc.
Discretionary powers:
 The president appoints Governor of a state,
Art.239.2
 Art.317.1, the Governor of Nagaland shall have
special responsibility with respect of Law and
order in State of Nagaland.
 Art.371F.g, the governor of Sikkim shall have
special responsibility for peace
 Art.200, the governor can reserve a bill for
consideration of the president
 Art.213, empowers governor to promulgate
ordinance.
 UP Episode 1997
 Gujarat Episode 1996
 Goa Episode 2005
 Jharkhand Episode 2005
Others:
 Art.155, Appointment of Governor by the
president by warrant under his hand and seal
 Art.156, term of office of Governor
o During presidents pleasure
o Resignation in writing
o Term of 5 years
 Art.157, Qualifications for appointment as
governor
o Citizen of India
o 35 years
 Art.158, Conditions of Governor’s office
o Should not hold any office of profit
o Residence can be used without rent
o He can be appointed as Governor for 2
or more states
o Emoluments and allowances of the
governor shall not be diminished
during his term of office.
 Art.159, Oath or affirmation by the Governor
 Art.160, Discharge of the Functions of the
Governor in certain contingencies
 Art.361, protection and immunities of
President and Governor.
Council of Ministers:
Chief Minister and Other Minister
 Art.163, Governor is supposed to act in advice
of Council of Ministers
 A minister or CM is a Public Servant and
Governor’s permission is not needed before
the prosecution
11
Powers and Functions, duties:
 CM is the leader of Council of Ministers and
presides over the meetings of council of
Ministers
 Art.164, CM is appointed by Governor and
other ministers are appointed on advice of CM
 Art.166, Governor has been given more
powers to make rules for the more convenient
transactions of the business of Government of
the state
 Art.167, duties of CM
o Communicate on all decisions
o Furnish info on Administration
o Consideration of COM
 Art.202, the state legislature has control over
the purse also. It passes the annual budget of
the state and also money bills.
 Art.203.3, no demand can be made except on
the recommendation of the governor
 Art.204, appropriation of funds made out of
consolidated fund
 Art.177, every minister has the right to speak
in and take part in legislative assembly of the
state.
 Art.75.5, a minister who for any period of 6
consecutive months is not a member of either
house of parliament shall at the expiration of
that period cease to be a minister.
 Minister includes PM also
 The number of ministers shall not exceed 15%
of the total number of members of the
legislative assembly of that state.
Advocate general of the State:
 Art.165, the governor of each state shall
appoint a person who is qualified to be a judge
of High court to be advocate general of the
state.
 He give advice to government on legal matters
and to perform such other duties of legal
character
 He shall hold office during the pleasure of the
governor, and shall receive such remuneration
as the governor may determine.
 Art.177, a minister and AG has the right to
speak in and otherwise to take part in the
proceeding of the legislative assembly of the
state
 He shall not be entitled to Vote by virtue of this
article.
(M.T.Khan vs Government of AP)
Dinesh Rajasekaran / Constitutional Laws 2 / LLB II YEAR / Dr.Ambedkar Law College / 9551386967
THE STATE LEGISLATURE
 Art.168-212
 Art.168- Constitution of Legislatures in States
 Art.168.2, where there are 2 houses of the
State legislatures, one shall be known as the
Legislative Council and other as the Legislative
Assembly and when there is only one house, it
shall be known as the Legislative Assembly.
 Art.168.1, The Governor cannot be member of
either house of parliament or of the state
legislature, but he is part of state legislature
 Art.169, resolution passed by a majority of
total membership of the assembly present and
voting.
 Legislative assembly is the lower house of the
state chosen by direct election from territorial
constituencies in the state
 Art.169, Abolition or creation of legislative
council of the states.
 Art.170, Composition of legislative assembly
o Not more than 500 and not less than
60 members chosen by direct election
o Each state shall be divided into
territorial constituencies in such
manner that the ratio between the
population of each constituency and
the number of seats allotted
o Total number of seats shall be adjusted
by such authority
o Such readjustment shall not affect
representation
o Such readjustment shall take effect by
president may by order specify.
 Art.171, Composition of legislative council
o It shall not exceed 1/3rd of the total
number of members in the legislative
assembly of that state.
 Art.188, oath or affirmation by members
 Art.172, duration of state legislatures
o It shall continue for 5 years from the
date appointed for its first meeting
o During emergency not exceeding 1
year period and not extending beyond
a period of 6 months
 Art.173, qualifications for membership of the
state legislature
o Citizen of India
o Not less than 25 yrs of age for LA
o Not less than 35 yrs of age for LC
o Possess such other qualification as
may be prescribed
(Harjit singh vs Umrao singh)
 Art.174, Session of state legislature
prorogation and dissolution
12
o The Governor shall summon each
house of the state legislature to meet
at such time and place
o The state legislature is required to
meet Atleast for twice a year
o It is a complete code in itself
 Art.196.3, a bill pending in the state legislature
shall not lapse by reason of the prorogation of
the house.
 Art.190, vacation of seats
o No person can be a member of both
house of legislature
o No person shall be a member of the
legislature of 2 or more states
specified in first schedule
o He has to give resignations in writing
o Without permission if a person is
vacant for 60 days his place can be
declared as vacant.
 Art.191.1, Disqualifications for membership
o If he holds office of profit
o If he is of unsound mind
o If he is undischarged insolvent
o If he is not a citizen of India
o If he is so disqualified by or under any
law made by parliament
 Art.191.2, person disqualified under 10th
schedule
 Art.189, Voting in House, power of house to act
notwithstanding vacancies and quorum
 Art.193, penalty for sitting and voting before
making oath or affirmation under Art.188 or
when not qualified or when disqualified which
will be Rs.500/-
 Art.105, privileges of parliament, state
legislatures and their members
o Freedom of speech
o Privileges as the publications of
reports, proceedings by or under its
authority
o Other privileges
 Freedom from arrest
 Right to regulate Internal
proceeding
 Privilege as to privacy of
debates
 Right to prohibit publication of
its proceedings
 Right to hold enquiries and
summon witnesses
 Right to punish members or
outsiders for breach of
privilege and contempt of the
house
Dinesh Rajasekaran / Constitutional Laws 2 / LLB II YEAR / Dr.Ambedkar Law College / 9551386967
Legislative Procedure:
 Ordinary bill
o It originate in both the houses of the
state legislatures
o It cannot be passes unless it is
approved in both the houses
o A bill shall not lapse on dissolution of
the legislative assembly
o Bills passes in LA and not in LC in 3
stages, Bill is rejected by council, more
than 3 months elapses from the date
on which bill is laid, bill is passed by the
council with amendments to which the
LA does not agree
 Money Bill and Finance Bill
o Art.199 defines money bill
o The imposition, abolition, remission,
alteration or regulation of any tax
o The regulation of borrowing of money
o The custody of the consolidated fund
o The appropriation of money’s
o The declaration of any expenditure
charged
o The receipt of money on account of
consolidated fund
o Any matters incidental to any of the
matters specified
o Art.200, assent to the bill
Procedure in Financial Matters:
 Art.202, Annual financial statement
 Art.203, Procedure in legislature with respect
to estimates
 Art.204, Appropriation bills
 Art.205, Supplementary, additional or excess
grants
 Art.206, Votes on account, votes of credit and
exceptional grants
 Art.207, Special provision as to Finance bills
 Art.208, Rules of procedure
 Art.209, regulation by law of procedure in the
legislature of the state in relation to financial
business
 Art.210, Language to be used in Legislature
 Art.211, Restriction on discussion in the
legislature
 Art.212, Courts not to inquire into proceedings
of the legislature
 Art.178, Officers of state legislatures
o Speaker and deputy speaker of LA
o Art.186, Chairman and Deputy
Chairman of LC
13
STATE JUDICIARY
 High Court and Subordinate Court
 Art.214-237
 State judiciary consists of a High court and the
courts subordinate to High Court
 Art.214, there shall be a High Court in each
state
 Art.231.1, parliament by law establish a
common High court for 2 or more states and a
union territory
High Court in States:
 Art.216, every high court shall consist of a Chief
justice and such other judges as the president
may from time to time, deem it necessary to
appoint.
(SC Advocates on Record association vs UOI)
 Art.21, right to speedy trial
(S.P.Gupta vs UOI)
 Art.217.1, every judge of HC shall be appointed
by president by warrant under his hand and
seal after consultation with CJ of India,
Governor of the state concerned and CJ of the
High court of each state.
 Art.21.2, qualifications of Judges
 Art.218, tenure, resignation and removal of a
judge
 Art.219, oath of affirmation done by judges
before the Governor of the state
 Art.220, restrictions on practice after being a
permanent judge
 Art.221, salaries of Judges
o Salary of CJ of High Court is Rs.90000/-
o Salary of Other Judges of HC is Rs.80K
 Art.223, Appointment of acting CJ
 Art.224, appointment of additional and acting
judges
o No person shall hold office after
attaining the age of 62 years
 Art.224A, appointment of retired judges at
sittings of High courts
 Art.222, transfer of judges
Jurisdiction and Powers of HC:
 Art.215, Court of Record-Power to punish for
Contempt of Court
 Art.227, power of superintendence over the
courts subordinate to it
 Art.228, power to withdraw certain cases from
subordinate courts which involves a
substantial question of law
 Art.226, writ jurisdiction of HC for
enforcement of Fundamental Rights and any
other Rights
o Art.32, the right to move to SC is itself
a fundamental right
o Art.32 is only for enforcement of FR
Dinesh Rajasekaran / Constitutional Laws 2 / LLB II YEAR / Dr.Ambedkar Law College / 9551386967
o The territorial jurisdiction of HC is not
as wide as of SC
o If a petition is filed under Art.32 and
dismissed, subsequent petition cannot
be filed under Art.226
Writs
 Habeas Corpus-Bring the body
 Mandamus-A command issued by superior
court to the government, inferior court,
tribunal, public authority, corporation or any
other person having public duty to perform
asking such government, inferior court,
tribunal, public authority, corporation or
person to perform the public duty or to refrain
from doing illegal act.
 Quo warranto- By what authority
 Certiorari- Writ issued by Superior court to the
inferior court or tribunal or body exercising
judicial or quasi-judicial functions to remove
the proceedings from such court, tribunal or
body for examining the legality of the
proceedings.
 Prohibition- Writ issued by a superior court to
an inferior court or tribunal or body exercising
judicial functions preventing such inferior
court or tribunal or body from usurping
jurisdiction which is not legally vested therein
or from acting in violation of the principles of
Natural Justice or from acting under the
Unconstitutional law.
Subordinate Courts:
 Art.233, appointment, posting and promotion
of the District Judge in any state shall be made
by Governor of the state in consultation with
HC exercising jurisdiction in relation to such
state.
 Art.233A, validation of appointments, of and
judgements etc., delivered by certain District
Judges.
 Art.234, Recruitment of persons other than
District Judges to the Judicial service
 Art.235, control over the Subordinate courts
 Art.237, applications of the provisions of this
chapter to certain class or classes of
Magistrates.
 Art.241, High court for Union Territories.
COMPTROLLER AND AUDITOR GENERAL OF INDIA
 Art.148
 He shall be appointed by President by warrant
under his hand and seal and shall be removed
from office like a judge of the SC
 He is supposed to do an oath or affirmation
according to the form set out for the purpose
in 3rd schedule
14
 Salary and other conditions of service may be
determined by parliament by law
 He shall not be further eligible for office either
under the government of India or under
Government of any state
 The constitution prescribes rules for persons
serving in Indian Audit and any accounts
department which is made by law by the
president in consultation with Comptroller and
Auditor general of India
 The administrative expense of office of the
comptroller and auditor general, including all
salaries, allowances and pensions payable to or
in respect of persons serving in that office shall
be charged upon consolidated fund of India.
 Duties and Powers of Comptroller and Auditor
General of India- Art.149
o In relation to the accounts of the union
and of the states and any other
authority or body as may be prescribed
by or under any law made by
parliament and until provision in that
behalf is so made.
 Form of accounts of the union and of the
states- Art.150
 Audit Reports, Art-151
o The accounts of the union shall be laid
before each house of parliament
o The accounts of the state shall be laid
before the legislature of the state.
THE UNION TERRITORIES
 Administration of Union Territories- Art.239
 Creation of Local legislature of council of
ministers or both for certain union territories-
Art.239A
 National Capital Territory of Delhi- Art.239.AA
and Art.239.AB
 Provision in case of failure of Constitutional
machinery, Art.239AB
 Power of Administrator to promulgate
ordinance during recess of legislature,
Art.239B
 Power of President to make regulations for
certain Union territories, Art.240
 High Courts for Union territories, Art.241
PANCHAYATS
Art.243B- Constitution of Panchayat
Art.243C- Composition of Panchayat
Art.243D- Reservation of Seats
Art.243E- Duration of Panchayat
Art.243F- Disqualifications of Memberships
Art.243G- Powers, authority and Responsibility
Art.243H- Power to impose taxes
Dinesh Rajasekaran / Constitutional Laws 2 / LLB II YEAR / Dr.Ambedkar Law College / 9551386967
Art.243I- Constitution of Finance Commission
Art.243J- Audit of Accounts
Art.243K- Elections to the Panchayats
Art.243L- Application to union territories
Art.243M- Provisions not to apply certain areas
Art.243N- Continuance of existing laws and Panchayats
Art.243O- Bar to interference by courts in electoral
matters
MUNICIPALITIES AND CO-OPERATIVE SOCIETIES
 Art.243Q- Constitution of Municipalities
 Art.243R- Composition of Municipalities
 Art.243S- Constitution and Composition of
Wards Committee
 Art.243T- Reservation of Seats
 Art.243U- Duration of Municipalities
 Art.243V- Disqualification of Membership
 Art.243W- Power, authority and Responsibility
of Municipality
 Art.243X- Power to impose tax and funds of
Municipalities
 Art.243Y- Finance Commission
 Art.243Z- Audit of accounts of Municipalities
 Art.243ZA- Elections to the Municipalities
 Art.243ZB- Application to union Territories
 Art.243ZC- Part not to apply to certain areas
 Art.243ZD- Committee for District Planning
 Art.243ZE- Committee for Metropolitan
Planning
 Art.243ZF- Continuance of Existing laws and
Municipalities
 Art.243ZG- Bar to interference by courts in
electoral matters
The co-operative Societies
 Art.243ZH- Definition
 Art.243ZT- Incorporation of C-operative
societies
 Art.243ZJ- Number and Term of members of
board and its office bearers
 Art.243ZK- Election of members of Board
 Art.243ZL- Supersession and suspension of
Board and interim management
 Art.243ZM- Audit of accounts of cooperative
societies
 Art.243ZN- Convening of General body
meetings
 Art.243ZO- Right of a member to get
information
 Art.243ZP- Returns
 Art.243ZQ- Offences and Penalties
 Art.243ZR- Application to Multistate co-
operative societies
 Art.243ZS- Application to Union territories
 Art.243ZT- Continuance of existing laws
15
THE SCHEDULED AND TRIBAL AREAS
 Art.244- Administration of Scheduled areas
and Tribal areas
 Art.244A- Formation of an Autonomous state
comprising certain tribal areas in Assam and
creation of local legislature or council of
ministers or both thereof
Relation between Union and States
Federal Constitution gives Distribution of powers
between union and states.
 Art.245-255, Legislative Relations
 Art.256-263, Administrative Relations
 Art.264-293, Financial Relations
(Sarkaria Commission vs UOI)
Legislative Relations:
 Art.245, Distribution of the Legislative powers
between the Union and the states with respect
to territory.
 Parliament make laws for the whole or any part
of the territory of India and the legislature of a
state may make laws for the whole or any part
of the state.
 These powers are subject to provisions of
Constitution
(Kuldip Nayar vs UOI)
(State of MP vs Rakesh Kohali)
Doctrine of Territorial Nexus:
 No law made by the parliament shall be
deemed to be invalid on the ground that it
would have extra territorial operation.
 In the case of a sovereign legislature, question
of extra territoriality of any enactment can
never be raised in the municipal courts as a
ground for challenging its validity.
(Electronics Corporation of India vs CIT)
(SOB vs RMD Chamarbaugwala)
Delegated Legislation or Subordinate Legislation:
 Legislations are to be made by the legislature,
but the legislature may by statute, delegate its
power to other persons or bodies.
 It means legislation by authorities, bodies or
persons other than the legislature.
 Subordinate authority in the exercise of the
power of authority delegated to it by
legislature.
 They exists in the form of Rules, Regulations,
bye-laws, statutory rules, order etc.
Reasons:
 The bulk of Business of the legislature has
increased and it does not have sufficient time
to discuss minor details.
 The subject matter of the legislation is of
Technical nature and it requires handling by
the experts.
Dinesh Rajasekaran / Constitutional Laws 2 / LLB II YEAR / Dr.Ambedkar Law College / 9551386967
 The law is required to be applied with some
modification according to the local needs and
conditions.
 It is more flexible than ordinary legislation
 The economic and national emergencies
require quick action but because of being
overburdened, the legislature finds it difficult.
 Public interest demands that the provisions of
the law should not be known until the time
fixed for their opinion comes.
 The legislature, while making the legislation,
cannot foresee and provide for all future
contingencies.
Limit of Delegation:
 Doctrine of Separation in USA
 Indian legislature cannot delegate the essential
legislative functions which have been
entrusted to it by the constitution.
(Babu Ram vs SOP)
(Inder Singh vs SOR)
Control of Delegated Legislation
 A bill containing proposal for delegation of
legislative power must be accompanied by a
memorandum explaining such proposal.
 It’s the laying procedure
 To have a committee system
o Lok sabha consists of 15 members
appointed by speaker for a year
o Rajya Sabha consistes of 15 members
nominated by the Chairman of Rajya
Sabha
Judicial Control:
 The doctrine of Ultra Vires has been applied by
the courts for the purpose of controlling the
delegated legislation.
 No Act should be Ultra Vires to Constitutional
law
 Distribution of Legislative powers in
o Union List
o State List
o Concurrent List
Doctrine of Pith and Substance:
 Legislative powers are differentiated between
union and states.
 Subjects have been divided into 3 categories
 Parliament has exclusive power to make laws
with respect to any matters or subjects
enumerated in Union list and the legislature of
any state has power to make laws for such
state or any part thereof with respect to any of
the matters enumerated in state list.
 Parliament and state, both have power to
make laws with respect to any of the matters
or subjects enumerated in Concurrent list, but
in case of conflict between a law made by the
parliament and a law made by state legislature
16
with respect to such matter or subject the law
made by parliament shall prevail and the laws
made by state, to the extent of repugnancy be
void unless it received the assent of president.
 Residuary power has been vested in
Parliament
(SOB vs Balsara)
(Banerjee vs Mukherjee)
(SOR vs Chawala)
Doctrine of Colourable Legislation:
 The Indian Constitution distributes the
legislative powers between the parliament and
the state legislatures and, they are required to
act within their respective spheres.
 This is applied when the transgression is
disguised, covert and indirect.
 It is based on the Maxim that what one cannot
do directly, that cannot be done indirectly.
 Legislations cannot violate the constitutional
limitations by employing indirect method.
 Thus the court examines the effect of the
legislation and takes into consideration its
object, purpose and design.
(Moopil Nair vs SOK)
Doctrine of Harmonious Construction:
 When there is a Conflict between Union
legislature and State Legislature, the court
brings in Harmony between them.
(Tikka Ramji vs SO U.P)
(SOB vs Balsara)
 Art.247, Power of Parliament to provide for the
establishment of certain additional courts
 Art.248, Residuary power
 Art.249, Power of Parliament to legislate with
respect to a matter in the state list in the
national interest
 Art.250, power of parliament to legislate with
respect to any matter in the state list if a
proclamation of emergency is in operation.
 Art.251, Inconsistency between laws made by
parliament under Art.249 and Art.250 and laws
made by the Legislature of states
 Art.252, Power of parliament to legislate for 2
0r more states by consent and adoption of
such legislation by any other state.
 Art.253, Legislation for giving effect to
International agreements
 Art.254, repugnancy between union law and
state law
 Art.255, Requirements as to recommendations
and previous sanctions to be regarded as
matters of procedure only
Administrative Relations:
 The Constitution of India provides for the
distribution of Administrative powers between
the union and states.
Dinesh Rajasekaran / Constitutional Laws 2 / LLB II YEAR / Dr.Ambedkar Law College / 9551386967
 Union has more powers than state.
 Makers wanted to establish Strong Central
Government
 Our constitution establish a strong central
government and federal constitution
 Our constitution places emphasis on interstate
co-operation
 It is called as Co-operative federalism
 Art.256-263, Administrative relations between
union and state.
Art.256/257, Unions Directives to states
 Art.256, the executive power of every state
shall be so exercised as to ensure compliance
with the laws made by parliament and any
existing laws which apply in that state.
 Construction and Maintenance means of
communications
 Constructions of Naval, Military and air force
works
 Measures to be taken for protection of
Railways within the states
 Any costs incurred in excess has to be borne by
the state
 Union may impose the president’s rule in the
state and can take over the administration of
the state.
 Art.258, Power of Union to confer powers etc.
on states in certain cases
 Art.258A, Power of states to entrust functions
to the union
 Art.260, Jurisdiction of the Union in relation to
territories outside India
 Art.261, Public Acts, records and judicial
proceedings
 Art.262, Duties relating to Waters
 Art.263, Co-ordination between states or
Cooperative Federalism
Financial relations:
 Art.265, no tax shall be levied or collected
except by authority of law.
 Not only levy but the collection of tax
 Law must be a Valid Law
 It must be enacted by Legislature
 It must not violate constitution
 It does not include executive order or
executive instructions
 No custom duty can be imposed on any
executive or administrative instructions
 It is to be noted that double taxation is
prohibited.
 The court held that there is nothing in the
constitution which prevents imposition of
double taxation
 Sometimes it is imposed that taxes are
imposed twice upon the same thing
17
 Art.266, Consolidated Fund and Public
Accounts of India and of the states.
 Art.267, Contingency fund
Distribution of Revenue between Union and States:
 Art.268, Duties levied by Union but collected
and appropriated by the state.
 Art.268A, Service Tax levied by the Union and
collected and appropriated by the Union and
states
 Art.269, Taxes levied and collected by Union
but assigned to state
 Art.270, Taxes levied and collected by the
union and distributed between union and
states
 Art.271, Surcharge on certain duties and taxes
for purpose of the union
 Art.273, Grants in lieu of export duty on jute
and jute products
 Art.274, Prior recommendation of president
require to bills affecting taxation in which
states are interested
 Art.275, Grants from the Union to certain
states
 Art.276, Taxes on professions, trades, callings
and employments
 Art.277, Savings
 Art.279, Calculation of net proceeds
 Art.280, Finance commission
 Art.282, Expenditure defrayable by the union
or a state out of its revenues
 Art.283, Custody etc. of consolidated fund,
Contingency funds and moneys credited to the
public accounts
 Art.284, Custody of suitors deposits and other
money’s received by public servants and courts
 Art.285, exemption of property of Union from
State taxation
 Art.286, Restrictions as to imposition of tax on
the sale or purchase of goods
 Art.287, Exemptions from taxes on electricity
 Art.288, Exemptions from taxation by states in
respect of water or electricity in certain cases
 Art.289, Exemption of property and income of
a state from Union taxation
 Art.290, Adjustment in respect of certain
expenses and pensions
 Art.290A, Annual payment to certain
Devaswom funds
Borrowing:
 Art.292, Borrowing by Government of India
 Art.293, Borrowing by states
Dinesh Rajasekaran / Constitutional Laws 2 / LLB II YEAR / Dr.Ambedkar Law College / 9551386967
PROPERTY
 Art.294, Succession to property, assets, rights,
liabilities and obligations in certain cases.
 Art.295, Succession to property, assets, rights,
liabilities and obligations in other cases
 Art.296, Property accruing by escheat or lapse
or as bona vacantia
 Art.297, Things of value within territorial
waters or continental shelf and resources of
the exclusive economic zone to the vest in the
union
 Art.298, Power to carry on trade, etc.
LIABILITY OF STATE OR GOVERNMENT IN TORTS
AND CONTRACTS
ENGLAND
 State is not a Living entity but a legal entity.
 It can function only through human agency.
 King can do no wrong.
USA
 Federal Torts claims Act, 1946
 Exceptions for specific administrative functions
 No liability of United states for more
international torts
 Exceptions seen for assault, battery, false
imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander,
mis-representation, decent or interference
with contract rights.
 Federal officers exercising due care in carrying
out statutes or regulations whether or not they
are valid.
INDIA
 Art.300, the union of India or a state is a Juristic
person and they may sue or be sued by the
name of the union of India or of the state
respectively.
 Earlier we followed Government of India Act,
1935
 Sec.65 of GOI Act 1858 provides that the
Secretary of state in council shall and may sue
and be sued as well in India as in England by
the name of secretary of state in council as
body corporate and all persons and bodies
politics shall and may have and take the units,
remedies, proceedings, legal and equitable
against the secretary of state in council of India
as they could have against the East India
Company.
(Peninsular and Oriental steam Navigation co
vs SOI)
(SOR vs Vidyawati)
(UOI vs Sugrabai)
Violation of Right to Life and Personal Liberty:
 These are guaranteed by the constitution.
18
 Art.14, 19, 21, 22
(Rudul Shah vs SOB)
(Bhim Singh vs SOJK)
(Kumari vs SOTN)
Liability of state or Government in Contract:
 Art.298, provides that the executive power of
the union and of each state shall extend to the
carrying on of any trade or business.
 Art.299, lays down the manner of formation of
such contract.
 Art.299.1, provides that all contracts in the
exercise of the executive power of the union or
of a state shall be expressed to be made by the
president or by governor of the state.
 Art.299.2, makes it clear that neither the
president nor the governor shall be personally
liable in respect of any contract or assurance
made or executed for the purpose of this
constitution or for the purpose of any
enactment relating to the government of India
heretofore in force.
A contract with the Government of the union or
state will be valid and binding only if the following
conditions are followed,
 The Contract must be made in the name of
president or the governor of the state, as
the case may be
 The contract must be executed on behalf
of president or governor of the state as the
case may be
 An oral contract is not valid, it should be in
writing.
 The contract must be executed by a person
duly authorised by the president or the
Governor of the state, as the case may be.
(Union of India vs N.K. Ltd)
(SOB vs K.C.Thaper)
 Effect of Non-Compliance with the
provisions of Art.299.1
o Ratification
o Estoppel
 Government contract and Art.14
 Quasi contractual Liability
 Sec.65 of Indian Contract Act
RIGHT TO PROPERTY
Art 300-A
TRADE COMMERCE AND INTERCOURSE WITHIN
TERRITORY OF INDIA
 Art.301, Freedom from all barriers,
restrictions, control and regulation save only
those expressly permitted
 Art.302-305, impose restrictions on this
freedom
Dinesh Rajasekaran / Constitutional Laws 2 / LLB II YEAR / Dr.Ambedkar Law College / 9551386967
 Art.307, empowers parliament to appoint by
law, the authority for carrying out the purpose
of Art.301-304
Restrictions on this freedom of Trade, Commerce and
Intercourse:
 Art.302/303, Parliaments power to impose
restrictions
 Art.304, State’s power to Regulate
 Art.305, Saving of Existing laws and laws
providing for state monopolies
SERVICES UNDER THE UNION AND THE STATES
 Art.309, Regulation of Recruitment and
conditions of service of persons serving the
Union or state.
 Art.310, Doctrine of Pleasure and its
limitations
 Every person who is a member of defence
service or of a civil service of the union or of an
all India service or holds any post connected
with defence or any civil post under the union,
holds office during the pleasure of the
president and every person who is a member
of a civil service of a state or holds any civil post
under a state holds office during the pleasure
of the Governor of the state.
Restrictions:
 Art.310.2, Compensation for premature
termination of Contractual services.
 Art.310.1, Subject to Fundamental Rights
 Art.310.1, Tenure of the Judge of the Supreme
court, Judges of High Court, Chief election
commissioner etc.
 Art.311, Restrictions on Doctrine of Pleasure
Extent of Protection:
 Art.311.1, No Dismissal or removal by
authority subordinate to the appointing
authority
 Art.311.2, No Dismissal, removal or reduction
in Rank except after inquiry and reasonable
opportunity to defend.
 Art.312, All India Services
 Art.312A, Power of parliament to vary or
revoke conditions of service of officers of
certain services.
 Art.315, Public Service Commission
 Art.320, functions of PSC
 Art.322, expenses of PSC
 Art.323, Reports of PSC
TRIBUNALS
 Art.323A- Administrative Tribunals
 Art.323B- Tribunal for other matters
19
ELECTION
 Art.324, Power to make all necessary
provisions for conducting free and fair
elections
 Art.324.2, consists of Chief Election
Commissioner and Such other Election
Commissioners as the president may from time
to time fix
 Art.324.3, CEC acts as chairman of the election
commission
 Art.324.4, the president shall appoint such
regional commissioners as he may consider
necessary to assist the election commissioner
 Art.324.5, Conditions of service and Tenure of
office
 Art.325, No person to be ineligible for inclusion
in, or to claim to be included in, a special ,
electoral roll on grounds of religion, race, caste
or sex
 Art.326, Election to the House of people and to
the Legislative assemblies of states to be on
the basis of adult suffrage
 Art.327, Power of parliament to make
provision with respect to elections to
legislatures
 Art.328, Power of legislature of a state to make
provision with respect to election to such
legislature
 Art.329, Bar to interference by courts in
electoral matters
SPECIAL PROVISION RELATING TO CERTAIN
CLASSES
 Art.330, reservation of seats for SC and ST in
the House of the people
 Art.331, representation of the Anglo-Indian
community in the House of people
 Art.332, representation of Seats for SC and ST
in the Legislative Assembly of the state
 Art.333, Representation of the Anglo-Indian
community in the legislative assemblies of the
states
 Art.334, reservation of seats and special
representation to cease after 70 years
 Art.335, claims of SC and ST to services and
posts
 Art.336, special provision for Anglo-Indian
community in certain services
 Art.337, special provision with respect to
educational grants for the benefit of Anglo-
Indian community
 Art.338, National commission for SC
 Art.338A, National commission for ST
Dinesh Rajasekaran / Constitutional Laws 2 / LLB II YEAR / Dr.Ambedkar Law College / 9551386967

 Art.339, control of the union over the

administration of Scheduled Area and the
welfare of ST
 Art.340, appointment of a commission to
investigate the conditions of backward classes
 Art.341-SC
 Art.342-ST

OFFICIAL LANGUAGE
 Art.343, official language of the Union
 Art.344, Commission and Committee of
parliament of official language
 Art.345- Official Language or languages of a
state
 Art.346- Official language for communication
between one state and another or between a
state and union
 Art.347, special provision relating to language
spoken by a section of population of a state
 Art.348- Language to be used in SC and HC for
Acts and Bills etc.
 Art.349, special procedure for enactment of
certain laws relating to language
 Art.350, Language to be used in
representations for redress of grievances
 Art.350A, facilities for instructions in mother
tongue at primary stage
 Art350B, special offer for linguistic minorities
 Art.351, directive for development of the Hindi
language

EMERGENCY PROVISIONS
 Art.352, National Emergency
 Art.356, State Emergency
 Art.360, Financial Emergency
Effect of Proclamation of Emergency:
 Art.83.2, Extension of life of the House of the
people
 Art.353, Extension of the Executive and
Legislative power of the Union
 Art.354, Unions power to alter distribution of
revenue between the union and states
 Art.358, effect of FR guaranteed by Art.19
 Art.359, suspension of the FR during
emergency
 Art.355, duty of the union to protect states
 Art.250, parliaments power to legislate with
respect to any matter in state list

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20