Indian_polity.pdf

INDIAN POLITY

J V PRUTHVI NATH | | January 13, 2016

Table of Contents Table of Contents ...................................................................................................................................................................................... 1 INDIAN POLITY ..................................................................................................................................................................................... 12 INDIAN CONSTITUTION .....................................................................................................................................................................14 CONSTITUTIONAL AUTOCHTHONY ...........................................................................................................................................14 ADOPTION .........................................................................................................................................................................................14 PREAMBLE ..............................................................................................................................................................................................16 What is Preamble? ..............................................................................................................................................................................16 Important Terms in Preamble… ........................................................................................................................................................16 Analysis of Preamble ..........................................................................................................................................................................18 Philosophy of Preamble .................................................................................................................................................................... 19 Legal Status of Preamble ................................................................................................................................................................... 19 SCHEDULES ............................................................................................................................................................................................ 21 First Schedule (Art. 1 – Art. 4) – STATES AND UTs ........................................................................................................................ 21 Second Schedule – SALARIES AND PROVISIONS ........................................................................................................................ 22 Third Schedule – OATHS .................................................................................................................................................................. 22 Fourth Schedule – RAJYA SABHA SEATS ....................................................................................................................................... 22 Fifth Schedule [Art. 244(1)] – SCHEDULED AREAS AND TRIBES ............................................................................................... 22 Sixth Schedule [Art. 244(2), Art. 275(1)] – TRIBAL AREAS ........................................................................................................... 23 Seventh Schedule [Art. 246] - LISTS ................................................................................................................................................ 23 Eighth Schedule [Art. 344(1) and Art. 351] – LANGUAGES ........................................................................................................... 24 Ninth Schedule [Art. 31B] – LAND REFORM ACTS ....................................................................................................................... 24 Tenth Schedule [52nd CAA, 1985] – ANTI-DEFECTION LAW ...................................................................................................... 24 Eleventh Schedule – PANCHAYAT .................................................................................................................................................. 24 Twelfth Schedule – MUNCIPALITY ................................................................................................................................................. 25 STRUCTURE OF THE INDIAN CONSTITUTION ............................................................................................................................. 26 Outstanding Features of Indian Constitution ................................................................................................................................ 26 THE UNION AND ITS TERRITORY [Art. 1 – Art. 4] [Part 1]............................................................................................................. 28 Article 1 ............................................................................................................................................................................................... 28 Article 2 ............................................................................................................................................................................................... 28 Article 3 ............................................................................................................................................................................................... 28 Article 4 ............................................................................................................................................................................................... 29 How did present picture came into existence? ............................................................................................................................... 29 Name Change ..................................................................................................................................................................................... 30 CITIZENSHIP [Art. 5 – Art. 11] [Part 2] ................................................................................................................................................. 31 PAGE 1

PIO Card Holder ................................................................................................................................................................................. 31 OCI (Overseas Citizen of India) Card Holder .................................................................................................................................. 31 Single Citizenship .............................................................................................................................................................................. 32 Rights only for Indian Citizens ......................................................................................................................................................... 33 The Citizenship Act, 1955: RTD – Loss of Citizenship: 3 ways ...................................................................................................... 33 Acquiring Citizenship: 5 ways .......................................................................................................................................................... 33 FUNDAMENTAL RIGHTS [Art. 12 – Art. 35] [Part 3] ......................................................................................................................... 35 Why Fundamental? ........................................................................................................................................................................... 35 List of FRs ........................................................................................................................................................................................... 36 Right to Equality ............................................................................................................................................................................. 36 Right to Freedom ............................................................................................................................................................................ 36 Right against Exploitation ............................................................................................................................................................. 36 Right to freedom of Religion .......................................................................................................................................................... 36 Cultural and Educational Rights ................................................................................................................................................... 36 Right to Constitutional Remedies ................................................................................................................................................. 37 Features of FRs ................................................................................................................................................................................... 37 Article 12 – Definition of State .......................................................................................................................................................... 38 Article 13 – Laws inconsistent with FRs ........................................................................................................................................... 39 Article 14 – Equality before of LAW and Equal protection of LAWS ........................................................................................... 40 Article 15 – No Discrimination.......................................................................................................................................................... 40 Article 16 – Equality of Opportunity in Public Employment ..........................................................................................................41 Article 17 – Abolition of Untouchability ...........................................................................................................................................41 Article 18 – Abolition of Titles .......................................................................................................................................................... 42 Article 19 - Right to Freedom ............................................................................................................................................................ 42 a)

Right to freedom of Speech and Expression ........................................................................................................................ 42

b)

Right to assemble peaceably and without arms.................................................................................................................. 43

c)

Right to form associations or unions or co-operative societies ......................................................................................... 43

d)

To move freely throughout the territory of India ............................................................................................................... 43

e)

To reside and settle in any part of the Indian Territory ..................................................................................................... 43

g)

To practice any profession or to carry on any occupation, trade or business .................................................................. 43

Article 20 – Protection against arbitrary and excessive punishment ........................................................................................... 44 Article 21 – Protection of Life and Personal Liberty ....................................................................................................................... 44 Evolution of interpretations of Art.21 ............................................................................................................................................ 45 Gopalan Era (1950) ......................................................................................................................................................................... 45 Menaka Gandhi Case (1978): A New dimension added ................................................................................................................ 45 PAGE 2

Post Menaka Gandhi Period: Dynamic Interpretation of Art.21 ................................................................................................. 46 Article 21A – Right to Compulsory Education................................................................................................................................. 46 Article 22 – Protection against arrest and detention in certain cases .......................................................................................... 47 Article 23 – Prohibition of traffic in human beings and forced labor ........................................................................................... 47 Article 24 – Prohibition of Employment of children in factories etc............................................................................................ 48 Article 25 – Freedom of Conscience and free profession, practice and propagation of religion. .............................................. 48 Article 26 – Freedom to manage religious affairs ...........................................................................................................................49 Article 27 – Freedom as to payment of taxes for promotion of any particular religion..............................................................49 Article 28 – Freedom as to attendance at religious instruction or religious worship in certain educational institutions .....49 Article 29 – Protection of interests of minorities ...........................................................................................................................49 Article 30 – Right to minorities to establish and administer educational institutions. .............................................................49 **Article 31 – Repealed by 44th CAA 1978. ....................................................................................................................................... 50 Article 32 – Right to Constitutional Remedy .................................................................................................................................. 50 Writs (5) ............................................................................................................................................................................................... 51

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Habeas Corpus (detained) ..................................................................................................................................................... 51

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Mandamus (mandatory duty) ............................................................................................................................................... 51

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Prohibition (before judgment) ............................................................................................................................................. 52

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Certiorari (prior or after)...................................................................................................................................................... 52

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Quo-warranto (authority) .................................................................................................................................................... 52

Article 33 – Armed forces and FRs ................................................................................................................................................... 52 Article 34 – Martial law ..................................................................................................................................................................... 53 Article 35 – Laws for effecting FRs (only parliament powers) ....................................................................................................... 53 Rights outside Part III ....................................................................................................................................................................... 54 Criticism.............................................................................................................................................................................................. 54 Significance ......................................................................................................................................................................................... 54 REMEMBER ........................................................................................................................................................................................ 54 DIRECTIVE PRINCIPLES OF STATE POLICY [Art. 36 – 51] [Part IV] ............................................................................................. 55 Article 37 ............................................................................................................................................................................................. 55 Contrast between FRs and DPSPs .................................................................................................................................................... 56 WHAT IS THE RELATION BETWEEN FR AND DPSP? ................................................................................................................ 56 State of Madras V. Chamapakam Dorairajan, 1951...................................................................................................................... 56 The Kerala Education Bill, 1957 [Art. 143(1)], 1957 ........................................................................................................................ 57 Golaknath Case, 1967 ..................................................................................................................................................................... 57 24th CAA, 1971 .................................................................................................................................................................................. 57 25th CAA, 1971 .................................................................................................................................................................................. 58 PAGE 3

Kesavanda Bharati V. Kerala State, 24 April 1973 ........................................................................................................................ 58 42nd CAA, 1976 repelled Art. 31(c) .................................................................................................................................................. 59 Classification ...................................................................................................................................................................................... 59 Socialist Principles .........................................................................................................................................................................60 Gandhian DPSP ..............................................................................................................................................................................60 Liberal – Intellectual principles .....................................................................................................................................................60 DPSPs outside part IV ........................................................................................................................................................................61 DPSP after amendments ....................................................................................................................................................................61 Criticism...............................................................................................................................................................................................61 Importance ..........................................................................................................................................................................................61 Implementation of DPSPs through… ............................................................................................................................................... 62 FUNDAMENTAL DUTIES [Art. 51A] [Part IVA] ................................................................................................................................. 63 Introduction ....................................................................................................................................................................................... 63 Swaran Singh Committee .................................................................................................................................................................. 63 Observations ...................................................................................................................................................................................... 64 Criticism.............................................................................................................................................................................................. 64 Significanc1e ....................................................................................................................................................................................... 64 Laws giving effect to FD .................................................................................................................................................................... 64 Fundamental Duties: List (11) ........................................................................................................................................................... 64 CONSTITUTIONAL AMENDMENTS [Part XX] [Art. 368] ...............................................................................................................66 Amendments in USA .........................................................................................................................................................................66 Amendments in India ........................................................................................................................................................................66

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Simple Majority .....................................................................................................................................................................66

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Special Majority .................................................................................................................................................................... 67

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Special Majority + 15 States .................................................................................................................................................. 67

Art.368 in Part XX .............................................................................................................................................................................. 67 Criticism..............................................................................................................................................................................................68 EMERGENCY PROVISIONS [Part XVIII] [Art. 352 – Art. 360] .........................................................................................................69 Characteristics ....................................................................................................................................................................................69 National Emergency ..........................................................................................................................................................................69 Effects of proclamation of emergency .............................................................................................................................................. 71 Centre’s executive power become absolute (Art. 353) ................................................................................................................... 71 Parliament can make any law on any state [Art.353 (b)] ............................................................................................................. 71 Centre can change the tenets of distribution of revenue between center and state (Art. 354) .................................................. 71 LS can be extended indefinitely (Art. 83(2)) .................................................................................................................................. 71 PAGE 4

Suspension of FR guaranteed by Art. 19 ......................................................................................................................................... 71 Suspension of Right of Enforcement of FR (Art. 359) .................................................................................................................. 72 Failure of the Constitutional Machinery ......................................................................................................................................... 73 Approval and Duration .................................................................................................................................................................. 73 Consequences.................................................................................................................................................................................. 73 S.R.Bommai V. Union of India (1994) ........................................................................................................................................... 73 Difference between NE and SE ....................................................................................................................................................... 74 Financial Emergency ......................................................................................................................................................................... 74 Approval and Duration .................................................................................................................................................................. 74 Consequences.................................................................................................................................................................................. 75 SYSTEM OF GOVERNMENT ............................................................................................................................................................... 76 PARLIAMENTARY SYSTEM ................................................................................................................................................................. 76 Difference between Parliamentary System and Presidential System ........................................................................................... 76 Reasons for adopting Parliamentary System................................................................................................................................... 77 Distinction between Indian and British Models ............................................................................................................................. 78 FEDERAL SYSTEM ................................................................................................................................................................................ 79 Federal features of the Indian Constitution .................................................................................................................................... 79 Unitary Features of the Constitution ...............................................................................................................................................80 Certain Evaluation of the Federal System .......................................................................................................................................80 CENTRE-STATE RELATIONS .............................................................................................................................................................. 82 Legislative Relations [Art. 245 to 255] [Part XI] .............................................................................................................................. 82 Territorial extent of Central and State legislation ....................................................................................................................... 82 Distribution of Legislative Subjects .............................................................................................................................................. 82 Parliamentary Legislation in State Field ....................................................................................................................................... 82 Centre’s control over State Legislation ......................................................................................................................................... 83 Administrative Relations [A 256 – A 263] [Part XI] ........................................................................................................................ 84 Distribution of Executive Powers .................................................................................................................................................. 84 Obligation of States and the Centre .............................................................................................................................................. 84 Relations during Emergency .......................................................................................................................................................... 84 All India Services ............................................................................................................................................................................ 84 Public Service Commissions .......................................................................................................................................................... 84 Integrated Judicial System ............................................................................................................................................................. 84 Financial Relations [A 268 – A 293] [Part XII] ................................................................................................................................ 85 INTER-STATE RELATIONS ..................................................................................................................................................................86 Inter-State Water Disputes ...............................................................................................................................................................86 PAGE 5

Inter-State Councils ...........................................................................................................................................................................86 Inter-State Trade and Commerce.....................................................................................................................................................86 Zonal Councils....................................................................................................................................................................................86

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Objectives ..............................................................................................................................................................................86

PARLIAMENTARY PROCESSES AND INSTRUMENTS Art. 79 – 122 .............................................................................................. 87 Composition of RS ............................................................................................................................................................................. 87 Composition of LS ............................................................................................................................................................................. 87 System of Elections to LS .................................................................................................................................................................. 87 Territorial Constituencies .............................................................................................................................................................. 87 Readjustment after each Census ................................................................................................................................................... 87 Proportional Representation not adopted .................................................................................................................................... 87 Duration .............................................................................................................................................................................................. 88 Speaker ................................................................................................................................................................................................ 88 Duties .............................................................................................................................................................................................. 88 Independence and Impartiality ...................................................................................................................................................... 88 Deputy Speaker .................................................................................................................................................................................. 88 Chairman ............................................................................................................................................................................................89 Sessions of Parliament .......................................................................................................................................................................89 Question Hour ................................................................................................................................................................................89 Legislative procedure.........................................................................................................................................................................90 Ordinary Bills .....................................................................................................................................................................................90 1.

First Reading .........................................................................................................................................................................90

2.

Second Reading .....................................................................................................................................................................90

3.

Third Reading ........................................................................................................................................................................90

4.

Bill in the Second House .......................................................................................................................................................90

5.

Assent of the President .........................................................................................................................................................90

Money Bills – Art.110 ..........................................................................................................................................................................90 Financial Bills (I) – Art. 117(1) ............................................................................................................................................................ 91 Financial Bills (II) – Art. 117(3) .......................................................................................................................................................... 91 Joint Sitting ......................................................................................................................................................................................... 91 BUDGETARY POWERs ..................................................................................................................................................................... 91 Expenditure ........................................................................................................................................................................................ 92 Income ................................................................................................................................................................................................ 93 Budget Session ................................................................................................................................................................................... 93 Procedure ........................................................................................................................................................................................ 93 PAGE 6

Funds ............................................................................................................................................................................................... 94 Multifunctional role of Parliament ..................................................................................................................................................94 1.

Legislative .............................................................................................................................................................................. 94

2.

Executive ................................................................................................................................................................................ 94

3.

Financial ................................................................................................................................................................................ 94

4.

Constituent ............................................................................................................................................................................ 94

5.

Judicial ................................................................................................................................................................................... 94

6.

Electoral ................................................................................................................................................................................. 94

7.

Others .................................................................................................................................................................................... 94

Position of Rajya Sabha .....................................................................................................................................................................94 Equal Status with LS ...................................................................................................................................................................... 94 Unequal Status with LS .................................................................................................................................................................. 94 Special Powers of RS ....................................................................................................................................................................... 95 Parliamentary Committee ................................................................................................................................................................. 95 Why is it required? ......................................................................................................................................................................... 95 Types of Committees ...................................................................................................................................................................... 95

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Ad hoc committee: ................................................................................................................................................................ 95

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Standing Committee: ............................................................................................................................................................ 95

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Financial Committee: ...........................................................................................................................................................96

Motions and resolutions ................................................................................................................................................................... 97 Calling Attention Motion ............................................................................................................................................................... 97 Motions only in Lok Sabha ...........................................................................................................................................................98 Cut Motion ......................................................................................................................................................................................98 Short Duration Discussion ............................................................................................................................................................98 PRESIDENT [A 52 – A 78] [Part V] .......................................................................................................................................................99 Election of the President ...................................................................................................................................................................99 Qualification .......................................................................................................................................................................................99 Oath ....................................................................................................................................................................................................99 Disqualification ..................................................................................................................................................................................99

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Impeachment Procedure.......................................................................................................................................................99

Powers ............................................................................................................................................................................................... 100 Legislative Powers ........................................................................................................................................................................ 100 Executive Powers .......................................................................................................................................................................... 100 Financial Powers ............................................................................................................................................................................ 101 Judicial Powers ............................................................................................................................................................................... 101 PAGE 7

Diplomatic powers......................................................................................................................................................................... 101 Military Powers.............................................................................................................................................................................. 101 Emergency Powers ......................................................................................................................................................................... 101 Veto (Reject) Power ..........................................................................................................................................................................102 Absolute Veto................................................................................................................................................................................. 102 Suspensive Veto ............................................................................................................................................................................. 102 Pocket Veto .................................................................................................................................................................................... 102 Pardoning POwer (A 72) ..................................................................................................................................................................102 VICE-PRESIDENT ................................................................................................................................................................................. 103 Election .............................................................................................................................................................................................. 103 Qualifications .................................................................................................................................................................................... 103 Removal .......................................................................................................................................................................................... 103 Functions ........................................................................................................................................................................................... 103 THE STATES [A 152 – A 237] [PART V] ............................................................................................................................................. 104 GOVERNOR ......................................................................................................................................................................................... 104 Qualifications ................................................................................................................................................................................... 104 Oath .................................................................................................................................................................................................. 104 Appointment and Term .................................................................................................................................................................. 104 Issues with respect Appointment & Removal ............................................................................................................................... 104 In reality – whims and fancies of Central Govt. .......................................................................................................................... 105 Powers ................................................................................................................................................................................................105

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Emergency Powers ............................................................................................................................................................... 105

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Pardoning Power (A 161) ...................................................................................................................................................... 105

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Discretionary Powers (A 163) ............................................................................................................................................. 106

Ordinance making power ............................................................................................................................................................... 106 COUNCIL OF MINISTERS [PART VI] ............................................................................................................................................... 108 Appointment .................................................................................................................................................................................... 108 Duties of CM w.r.t. Governor (A 167) ............................................................................................................................................ 108 STATE LEGISLATURE [Part VI] ......................................................................................................................................................... 109 Unicameral and Bicameral .............................................................................................................................................................. 109 Composition of Assembly ............................................................................................................................................................... 109 Composition of Legislative Council ............................................................................................................................................... 109 Duration ............................................................................................................................................................................................ 109 Qualification ..................................................................................................................................................................................... 109 Vacation ............................................................................................................................................................................................. 110 PAGE 8

Disqualification ................................................................................................................................................................................. 110 Privileges ............................................................................................................................................................................................ 110

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Privileges to Individual Members ........................................................................................................................................ 110

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Privileges of House collectively ........................................................................................................................................... 110

Procedure for passage of Bills ........................................................................................................................................................... 111 Procedure in Bicameral Legislature .............................................................................................................................................. 111 Governor’s Assent & Veto .............................................................................................................................................................. 111 JUDICIARY ............................................................................................................................................................................................ 112 Objectives of Judiciary ...................................................................................................................................................................... 112 Procedure of Appointment – Evolution ......................................................................................................................................... 112 1st Judges Case: S.P. Gupta V. UOI of 1981 ....................................................................................................................................112 2nd Judges Case: Advocates’ on Record Association Case of 1993 ................................................................................................112 3rd Judges Case: Presidential Reference Case of 1998 ...................................................................................................................112 National Judicial Appointments Commission (99 th CAA, 2014) – Stuck in Advocates’ on Record Association Case, 2015 ....112 Present Situation ............................................................................................................................................................................ 113 Removal of Judges ..............................................................................................................................................................................113 Independence of SC ...........................................................................................................................................................................113 Jurisdiction and Powers of SC.......................................................................................................................................................... 114

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Original Jurisdiction ............................................................................................................................................................ 114

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Writ Jurisdiction .................................................................................................................................................................. 114

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Appellate Jurisdiction .......................................................................................................................................................... 114

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Advisory Jurisdiction............................................................................................................................................................ 114

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A Court of Record................................................................................................................................................................. 114

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Power of Judicial Review ...................................................................................................................................................... 114

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Other Powers ........................................................................................................................................................................ 114

Judicial Review .................................................................................................................................................................................. 114 Phases of JR .....................................................................................................................................................................................115 1.

Shankari Prasad V. UOI (1951) Judgment ............................................................................................................................115

2.

Sajjan Singh Case (1964) Judgment .....................................................................................................................................115

3.

Golaknath Case V. State of Punjab (1967) Judgment .........................................................................................................115

Indian SC unlike US SC is not a 3rd Chamber. Discuss. ...............................................................................................................115 1.

Constitutionally ....................................................................................................................................................................115

2.

Judicial Pronouncements ..................................................................................................................................................... 116

2 aspects of Judicial Activism in India ............................................................................................................................................ 116

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Directions issued by Courts to Govt. authorities for protection of FRs + fulfilment of Public Interests ..................... 116 PAGE 9

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Judicial Activism in Interpretation of FRs .......................................................................................................................117

Activism V. Restraint .........................................................................................................................................................................117 Court’s Score Card .............................................................................................................................................................................117 PIL Score card.................................................................................................................................................................................... 118 PIL’s Mixed Success – Benefits ..................................................................................................................................................... 118 PIL’s Mixed Success – Issues......................................................................................................................................................... 118 Comparison of Indian SC and American SC .................................................................................................................................. 119 HC differ SC in the following aspects ............................................................................................................................................. 119

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Qualification ........................................................................................................................................................................ 119

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Oath ...................................................................................................................................................................................... 119

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Tenure ................................................................................................................................................................................... 119

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Removal ................................................................................................................................................................................ 119

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Transfer ................................................................................................................................................................................ 119

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Salaries.................................................................................................................................................................................. 119

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Original Jurisdiction ............................................................................................................................................................ 119

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Writ Jurisdiction .................................................................................................................................................................. 119

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Appellate Jurisdiction .......................................................................................................................................................... 119

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Supervisory Jurisdiction ....................................................................................................................................................... 120

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Judicial Review...................................................................................................................................................................... 120

PANCHAYAT RAJ INSTITUTIONS..................................................................................................................................................... 121 Local Self Governance ...................................................................................................................................................................... 121 Decentralized Planning .................................................................................................................................................................... 121 Balwant Rai Mehta Committee (1952) ............................................................................................................................................ 121 Recommendations: .........................................................................................................................................................................121 K Santhanam Committee (1963) ...................................................................................................................................................... 121 Recommendations: .........................................................................................................................................................................121 Ashok Mehta Committee (1978) ...................................................................................................................................................... 122 Recommendations: ........................................................................................................................................................................ 122 G V K Rao Committee (1985) ........................................................................................................................................................... 122 Recommendations: ........................................................................................................................................................................ 122 L M SINGHVI committee (1986) ..................................................................................................................................................... 122 Recommendations: ........................................................................................................................................................................ 122 Evolution of PRI ................................................................................................................................................................................ 122 73rd CAA, 1992 .................................................................................................................................................................................... 123 Important features: ....................................................................................................................................................................... 123 PAGE 10

Before Independence ........................................................................................................................................................................ 123 Modern India ................................................................................................................................................................................. 124 After Independence ........................................................................................................................................................................ 124 Present Status of PRI. How can they be strengthened? ................................................................................................................ 125 Objectives ....................................................................................................................................................................................... 125 Creating a Sustainable Rural Economy ....................................................................................................................................... 125 Municipalities ....................................................................................................................................................................................126

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Types of Municipalities ........................................................................................................................................................ 126

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Types of Urban Govt. (8) ..................................................................................................................................................... 126

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Composition ......................................................................................................................................................................... 126

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Ward Committee ................................................................................................................................................................. 126

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District Planning Committee .............................................................................................................................................. 126

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Metropolitan Planning Committee ..................................................................................................................................... 126

PAGE 11

INDIAN POLITY The Daily drama being enacted on the stage of Constitution is Indian Polity. Constitution:   

Establishes various offices. Empowered them And also limited their powers

Q. What is the origin of the Indian Polity and do you believe that in India we have Unity in Diversity?  

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The Indian sub-continent has been a crucible (melted here) of civilizations. Several cultures have made it home. They have left their cultural mark on it. This explains the Cultural Diversity. In this diversity, arose an illustration of a FAITH. The Faith was that India i.e. Bharat can be organized and governed on the basis of single constitution. This is the origin of Constitutional form of Governance in India. This faith is called as CONSTITUTIONALISM. This is the first proof of Unity. Because of this faith the CONSTITUENTASSEMBLY was established which drafted the Constitution of India, 1950 and then adopted it. Thus Constitutionalism is not anything written as Constitution of India, it is just an idea, a faith that our society can be organized on the basis of Constitution. Thus established Constituent Assembly which led to adoption. Faith (Constitutionalism) ------> Constituent Assembly ------> Constitution of India, 1950 The Assembly was represented from entire India and out of 299 members of Constituent Assembly 229 are form provinces (directly under British control) and 70 are from Indian States. This diverse Constituent Assembly was the second proof of Unity. The Constituent Assembly in the Constitution has laid down the common agenda which the People of India needs to pursue thus India is to be organized along the ideals of Sovereign, Socialist, Secular, Democratic and Republic further all citizens should enjoy Justice, Equality, Fraternity (Brotherhood), Liberty and Dignity of Individual. Furthermore the common objective is Unity and Integrity of Nation. This is the third proof of Unity. In our Multi-party Democracy the various political parties have different manifestos. These manifestos are not only consistent with the common agenda but also designed to promote this agenda. This is the fourth proof of Unity. It is the same faith which manifests itself in the form of political party manifestos. The most important proof in this regard is that citizens of India come out and vote in the general elections to the Loksabha to choose their representatives. Today we are enjoying the 16 th Loksabha. Thus although we are culturally diverse, ideally and aspirationally we are united. This is the meaning of Unity in Diversity.

Q. How would you define the Indian Constitution? 

 



The Indian Constitution is the Fundamental, Organic and Supreme Law of the Land which gives the concept, character and organization of its governance. It tells us the extent of our sovereignty and how to exercise it. It is the document of people’s faith and aspirations enjoying a special legal sanctity. By the Fundamental is meant that all other laws of India are originated from the Constitution. Thus it is fountain head of all laws of India. By Organic is meant that this law establishes the three organs of State namely the Legislature, the Executive and the Judiciary. Also because it responds to the changing society. Constitutionalism allows it to respond. Thus written part is subject to Amendments. The same old words of Constitution of India is given more and more progressive interpretations by the SC. SC continuously monitors the changes in the society, as the society changes interpretations changes. Supreme Law means that all the other laws should be consistent with (in line with or not clashing with) the Constitution. If they clash with the Constitution then they will be made invalid. PAGE 12

   

By Concept and Character is meant that India is a Sovereign, Socialist, Secular country securing to the citizens Justice, Liberty and Equality etc. By Organization is meant that India is Democratic, Republic with British Parliamentary form of Governance at the Center and State Governments. Sovereignty means Independent authority. The Constitution proclaims it, defines it and provides wage to exercise it. People’s faith refers to the aspects of Constitutionalism. Aspirations refers to Justice, Equality and Liberty etc. Special Legal sanctity means that the Constitution of India is used to test the validity of the Parliamentary laws and not the reverse.

Q. What is the Composition of Indian Constitution? The Indian Constitution consists of – 1. 2.

3.

The Constitution of India, 1950 (the written text). The Conventions – as we have adopted the British parliamentary form of governance. So we have also adopted some of its conventions. On these conventions, the written part is silent. For instance, if the govt. loses majority in LS, it must resign. The interpretation which is placed by the SC on the words of Constitution. All written text are subjected to interpretation.

PAGE 13

INDIAN CONSTITUTION      

For Government: The Constitution provides the Structure (Union, State, Districts, Municipalities, Panchayats), Procedure, Power (separation of power: Legislative, Executive, Judiciary) and Duties. For Citizens: The Constitution provides Fundamental Rights (part III), Directive principles of state policy (DPSP: part IV) and Fundamental Duties (part IVA). Longest written constitution of any sovereign country with 448 articles in 25 parts, 12 schedules and 5 appendices. Dr. Rajendra Prasad was the President of the Constituent Assembly. Dr. Bhimrao Ramji Ambedkar is the Father of Constitution, Chairman of the drafting committee. Adopted Indian constitution on November 26, 1949, and came into effect in January 26, 1950. Two months delay was because on January 26, 1930, Poorna Swaraj event was held by Jawaharlal Nehru.

CONSTITUTIONAL AUTOCHTHONY (HOME GROWN NATURE)  



Assertion of not just autonomy, but that constitution was written by basing on their native culture and traditions and this gives them authenticity and effectiveness. To ensure the Constituent Assembly, the fore fathers of the Constitution inserted Article 395, repealing India Independence Act, 1947 (it states that until the new constitution would be framed, the Dominion would be governed according to the Government of India Act 1935 i.e., India would be a DOMINION of Britain till 1950). Before 15.08.1947: Colony. From 15.08.1947 to 26.01.1950: Dominion. From 26.01.1950 onwards: Republic. Republic of India came into effect by replacing the Government of India Act 1935.

ADOPTION 1.

Britain: 1. Parliamentary Democracy 2. Bicameralism (Loksabha and Rajyasabha) 3. Legislation (making laws) 4. Cabinet form of government 5. Rule of Law: i. Supremacy of Law (No one is above law). ii. All classes are subjected to same law. iii. Impartial, Integrated, Independent and Powerful Judiciary. 6. Single Citizenship 7. Prerogative writs (Art. 32) 8. Office of Comptroller and Auditor General (Art. 148)

2.

Govt. of India Act, 1935: 1. Federal Structure 2. Office of Governor 3. Judiciary power division (Supreme Court, High Courts, District Courts, Lower Courts, Panchayat Courts) 4. Service Commission

3. USA: 1. 2. 3. 4. 5. 6.

Preamble Fundamental Rights (part III). Judicial Review and Independence of Judiciary. Separation of Powers (LEJ) Office of Vice-President. Impeachment of President, Supreme Court and High Court Judges. (formal process of taking action against the official accused of unlawful activity) PAGE 14

4. Canada: 1. 2. 3.

Federal government with strong Centre, placing residuary powers with Centre (Art. 248) Appointments of State Governors. Advisory role of Supreme Court (Art. 143) (Presidential reference: The President can request the SC to provide its advice on any question of law or fact of public importance and the SC may or may not wish to answer to that question).

5.

Germany: Emergency Provisions (Part XVIII) including suspension of Fundamental Rights during emergency.

6.

USSR: Fundamental Duties (42nd CAA: Art. 51A)

7.

Russian Revolution: Idea of Justice (Social, Economic and Political : SEP)

8.

Australia: 1. Concurrent List (Art. 246(2): List III in Seventh Schedule) 2. Joint sitting of Parliament (Art. 108) 3. Freedom of Trade (Art. 301) 4. Commerce and Inter-state Trade (Art. 304)

9.

South Africa: 1. Amendment Procedure (Art. 368). 2. Indirect Elections for Rajyasabha members.

10. Japan: Procedure established by law (a law that is duly enacted by legislature or the concerned body is valid if it has followed the correct procedure) (Due Process of Law (American concept) = Procedure established by law + law made should be fair, just and not arbitrary). 11. Ireland: 1. Directive Principles of State Policy (DPSP: Part IV: Art. 36 – Art. 51) 2. Election process of President and nomination of members by President (2 – Loksabha and 12 – Rajyasabha) 12. France: Idea of Liberty, Equality and Fraternity

PAGE 15

PREAMBLE WE, THE PEOPLE OF INDIA, having solemnly (something done in a serious manner) resolved to constitute India into a SOVEREIGN, SOCIALIST (42nd CAA, 1976), SECULAR (42nd CAA), DEMOCRATIC, REPUBLIC (S3DR) and to secure to all its citizens: JUSTICE, social, economic and political; (SEP) LIBERTY of thought, expression, belief, faith and worship; (TEBFAW) EQUALITY of

status

and

of

opportunity;

and

to

promote

among

them

all

FRATERNITY assuring the Dignity of the individual and the Unity and Integrity (42nd CAA) (Unification) of the Nation; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. (AEGOC)

WHAT IS PREAMBLE? 

Adopted from USA Constitution. Objectives resolution of Nehru adopted by Constituent Assembly on 22.01.1947.



The preamble of a statute sets out the main objectives which the legislation is intended to achieve, fundamental values and guiding principles on which the Constitution is based.



The Preamble plays a pivotal role when there is an ambiguity in provisions of any Article or interpretation becomes confusing. This is when the spirit of the Preamble becomes the guiding factor.



In a majority of decisions, SC has ruled that the Preamble is non-enforceable and non-justiciable. Berubari Case, 1960: SC declared that Preamble is not integral part of the Constitution. So that it is not enforceable. Kesavananda Bharati Case, 1973 & LIC Case, 1995: Preamble is the integral part of the Constitution but nonenforceable.



It is amendable as there are cases of amendments (42nd CAA, 1976).

IMPORTANT TERMS IN PREAMBLE… Sovereign: 

Supremely Independent. Power emanates from the people.



Internally: It has a free government which is directly elected by the people and makes laws that govern the people.



Externally: Free from control of any foreign power which can dictate the India.



Hence, people of India also enjoy the sovereign power to elect their representatives in election held for Parliament, State Legislatures and Local bodies as well.



The sovereignty empowers India to either acquire a foreign territory or cede a part of its territory in favor of a foreign state.

Socialist: 

The word Socialist was added to the Preamble by the 42nd CAA of 1976 during National Emergency. Before amendment, these were incorporated as some of DPSPs.



The term Socialist here means Democratic socialism i.e. achievement of socialistic goals (social and economic equality) through democratic, evolutionary and non-violent means. Social equality: Everyone has equal status and opportunities and no discrimination on any ground. PAGE 16

Economic equality: To make the distribution of the wealth equally and provide a decent standard of living for all. This is a commitment towards the formation of the WELFARE STATE. 

A mixed economy in which both Public sector and Private sector run together as two wheels of economic development.



Then the provisions of Democratic Socialism were diluted by Liberalization, Privatization and Globalization which happened in 1991.

Secular: 

The word Secular was added to the Preamble by the 42 nd CAA of 1976 during National Emergency. The amendment turns implicit (indirectly stated) (Art. 25 – Art. 28) to Explicit (directly stated) by introducing this word into Preamble.



Secular means the relationship between the government and the people which is determined according to constitution and law and does not depend on any religion.



A state which does not recognize any religion as the state religion, it treats all religions equally irrespective of numeracy strength and other factors. S.R. Bommai Vs. UOI (1994)

Democratic (people involvement): 

The first part of the preamble “We, the people of India” and, its last part “give to ourselves this Constitution” clearly indicate the democratic spirit involved in the Constitution.



The people of India elect their governments at all levels by system of “Universal Adult Franchise (to only Loksabha and State Legislatures), Right to Vote (at all levels of System): One man - One vote”. Every Citizen enjoys this right without any discrimination on any ground of caste, creed, color, sex, religion or education who is 18 years of age.



The word 'democratic' not only refer to political but also to social (a socialist system of govt. achieved by democratic means) & economic (shift decision making power from corporate managers to a larger group of public shareholders) democracy. Dr. B R Ambedkar told that, “No political democracy without Social democracy”.



Impartial, Integrated, Independent Judiciary.

Republic: 

Democratic Head and not the Monarchy or Hereditary head.



Head of the State is either elected directly or indirectly elected for a fixed period (5 years in India) by the people.



Every citizen of India is eligible to become the President of the country.

Justice: Justice refers to 3 varying aspects – Social, Economic and Political (SEP) which are secured through Fundamental Rights and DPSPs. All three aspects were already discussed above. Social J. + Economic J. = Distributive J.

Liberty: 

TEBFAW (Fundamental Rights – Enforceable and Justiciable).



It must be exercised within the constitutional limit.

PAGE 17

Equality: 

This envisages that no section of the society enjoys special privileges and individuals are provided with adequate opportunities without any discrimination.



Status and opportunity – political, economic and civic.



Equality (Art. 14 – Art. 18), DPSP Art. 39 (Equal pay for equal work after securing livelihood of men and women), Art. 325 (No discrimination in electoral rolls inclusion), Art. 326 (Universal Adult Franchise).

Fraternity (belong to the same group – nation group): 

Sense of brotherhood and belonging to the country.



Single citizenship and Fundamental Duties (promote harmony and spirit of common brotherhood).



Assure dignity of individual (FD renounce (reject) practices derogatory (disrespect) to dignity of women).



It leaves no room for regionalism, communalism, casteism etc. which hinders the Unity and Integrity of the nation.

ANALYSIS OF PREAMBLE 1.

The declaratory aspect “We, the people of India gives ourselves this constitution.” This aspect shows that the source of the Constitution is people of India. Thus the Constitution derived its authority from the people. The people are ultimate sovereign. Independent authority lies with them. This is the concept of “popular sovereignty.” Further the sovereignty in India does not lie in a singular monarchy. This concept is in-line with India being a Republic.

2.

The Resolutory aspect “solemnly resolved”. It shows the Bill of the Constitution makers to constitute India into Sovereign, Socialist, Secular, Democratic and Republic. These are famously called as “Constitutional Ideas.” They lay down the concept of political democracy in India. India is to be established along the above ideals for the purpose of empowering the people by granting them Universal adult suffrage.

3.

Promissory aspect “To secure…Unity and Integrity of Nation.” Independence change the status of the people of India from that a British subject to an Indian citizen. The Constitution makers promised the Justice, Liberty and Equality mentioned in the Preamble. The further promise promoting the Fraternity and Dignity of the individual and Unity and Integrity of India.

PAGE 18

These promises aim at promoting socio-economic democracy in India. Their final purpose is assuring dignity, unity and integrity. 3.

Enactment aspect – “In our Constituent…Constitution.” This shows as to when our constitution was adopted some of the constitutional articles came into force immediately (26th November 1949). For E.g.: Art.5 – Art.9 (citizenship). However the bulk of the constitution commenced from 26th January 1950 which day is called as a Day of commencement of the Constitution (Art.394).

PHILOSOPHY OF PREAMBLE Our Preamble is a short summary of the Constitution which brings out its philosophy. The ultimate sovereign is working towards assuring the dignity of the individual and Unity and Integrity of the Nation. Popular sovereignty in India is ensuring political democracy and Socio-economic democracy. 

Political democracy means that not only the India being established along the ideals of the Modern day nation state but also the citizens have been empowered by the Universal Adult Suffrage.



Socio-economic democracy is in the form of an agenda for bringing about a socio-economic revolution in the country. So that the stratified society is converted into an Egalitarian (classless) Society.



The above kind of Democracy is working towards promoting fraternity amongst the people. This feeling of brotherhood means the harmony is promoted at 3 levels: Individual – Individual, Group – Group and at the level of units of federation.



The net effect of all this is establishing India with strong democratic ideals and institutions.



Thus above ensures good governance and developmental administration and welfare state setup for massing and ensuring string India with empowered citizens.

LEGAL STATUS OF PREAMBLE The issues are – 1.

Is the Preamble a part of the Constitution?

A. Overruling its earlier Judgment in Re-Berubari Case, the Kesavananda Bharati Judgment the Preamble is the part of the constitution but not enforceable. 2.

Can the Preamble be used as an aid or a tool to interpret the Constitution?

A. Preamble can be used as an aid or tool to interpret the Constitution. 3.

Is the Preamble a provision of the Constitution?

A. No. It is not the provision of the Constitution. 4.

Is the preamble the source of any right?

A. The Preamble is not the source of any right and it also does not impose any duty on the citizens. 5.

Is the preamble the source of powers of Constitutional offices and limitations upon them?

A. No. Preamble is not the source of any power of the Constitutional offices and it also does not impose any limitation of their powers.

PAGE 19

6.

Is the Preamble the source of Basic Structure?

A. No. The source of Basic Structure are the Articles of the Constitution although the Preamble contains all the words of Basic Structure yet it is not the source of Basic Structure. In 1973, SC recorded that Socialistic, Secular and Integrity of India are part of Basic Structure but these words were introduced into the Preamble in 1976 by the 42 nd CAA. 7.

How is the Preamble to be amended?

A. Although the Preamble is not the provision of Preamble yet it is within the Basic framework of the Constitution. It proves Vitality (life) to the Constitution. So its amendment should follow the same rigor (difficulty) which is followed for amendment of Articles. So Art.368 should be used to amendment of Preamble (Special Majority – 2/3rd of total membership) – stated in MINERVA MILLS case. By the 42nd CAA nothing new has been done as far as the Preamble is concerned. Socialistic, Secular and Integrity of India were already within the Constitutional scheme. This amendment has made explicit what we have implicitly already in the Constitution.

PAGE 20

SCHEDULES 

Schedules are in the constitution to categorize and tabulate Bureaucratic activity and policy of the Govt.



Very much part of the Constitution.



Initially there were 8 Schedules and now there are 12 Schedules.



IX: 1st CAA 1951 – Land reforms – Art. 31B – Now, comes under Judicial review X: 35th CAA 1974 – Sikkim as Associate state but later 36th CAA admitted Sikkim as State of India. So X became null. 52nd CAA 1985 – Again added X Schedule as Anti-defection Law for MPs and MLAs. XI: 73rd CAA 1992 – Panchayats – Art. 243G XII: 74th CAA 1992 – Municipality – Art. 243W

FIRST SCHEDULE (ART. 1 – ART. 4) – STATES AND UTS I.

The States (29)

II.

The Union territories (6+1 NCT) 

And also lists any changes to their borders and the laws used to make that change.



UTs: 1.

1956: Andaman and Nicobar Islands (part of India since 1950 and as UT from 1956) (Theresia Islands) (Administration: Lieutenant Governor appointed by President)

2.

1956: Lakshadweep (UT: 1956 from Maldives) (Administration: Not by a Head of the state/Govt. or a Governor. But done by an Administrator, IAS Officer, appointed by President as an agent of him.) (Capital: Kavaratti. High Court: Kerala)

3.

1961: Dadra and Nagar Haveli (Silvassa as shared capital) (Dadra: North. Nagar Haveli: South to the river bank of Daman Ganga River. Silvassa: North) (UT from 1961 – Merged into India by the PM of Dadra and Naga Haveli. After Portuguese, India just acted as an administrator from 1954 – 1961) (Administration: IAS)

4.

1963: Puducherry (Transferred to India in 1954. But UT: 1963) (4 French enclaves: Puducherry(TN), Karikal(TN), Mahe(KL) and Yanam(AP)) (Administration: Lt. Governor, Chief Minister, Legislature)

5.

1966: Chandigarh (1966 because Haryana was formed on November 1, 1966) (Administration: Central govt.)

6.

1987: Daman and Diu (1961: annexed into India. 1974: Portuguese recognized the sovereignty of India over Goa, Daman and Diu. 1987: Goa has given State-hood, so Daman and Diu became UT in 1987) (Capital: Daman)(Administration: IAS)

7.

1991: Delhi (NCT from 1991 – 96th CAA) (Lt.Governor, Chief Minister, Assembly)

Andaman and Nicobar, Puducherry and Delhi have Lt.Governors. Puducherry and Delhi have Chief Ministers appointed by President of India. Lakshadweep, Dadra and Nagar Haveli, Daman and Diu: IAS Officers appointed by President. Chandigarh directly by Union Govt.

PAGE 21

SECOND SCHEDULE – SALARIES AND PROVISIONS 

Art. 59(3) – President, 65(3) – Vice-President as President, 75(6) – Ministers salaries, 97 – LS and RS, 125 – SC Judges, 148(3) – Comptroller, 158(3) – Governor, 164(5) – State Ministers, 186 – Assembly and Council and 221 – HC Judges.



Provisions and salaries to 1.

Part A: President and Governors of States.

2.

Part B: Repealed.

3.

Part C: Speaker and Deputy Speaker of Loksabha and State legislatures Chairman and Deputy Chairman of Rajyasabha and State Councils.

4.

Part D: Judges of the Supreme Court and of the High Courts.

5.

Part E: Comptroller and Auditor-General of India.

THIRD SCHEDULE – OATHS Form of Oaths (Theist in the name of God) or Affirmation (Objecting to oath as atheist so solemn declaration) for: 1.

Union and State Ministers

2.

MPs and Candidates for elections for Parliament.

3.

MLAs and MLCs and Candidates for election to State Legislature.

4.

Judges of SC and HC, Comptroller and Auditor-General (CAG).

FOURTH SCHEDULE – RAJYA SABHA SEATS Allocation of seats in the Rajyasabha per State or Union Territory (233 + 12 nominated = 245). Must not be more than 283.

FIFTH SCHEDULE [ART. 244(1)] – SCHEDULED AREAS AND TRIBES 

Provisions relating to the Administration and Control of Scheduled Areas and Scheduled Tribes. These are some parts of States (excluding Assam, Tripura, Meghalaya, Mizoram – ATM Machine) Scheduled Areas: such areas as the President may by order declare to be Scheduled areas. The criteria followed for declaring an area as Scheduled Area are preponderance of tribal population; compactness and reasonable size of the area; under-developed nature of the area; and marked disparity in economic standard of the people. Scheduled Tribes: Tribes or tribal community which are under Art. 342 considered to be as Scheduled Tribes. The criterion followed for specification of a community, as scheduled tribes are indications of primitive traits, distinctive culture, geographical isolation, shyness of contact with the community at large, and backwardness. The President release the list of tribes by public notification and Parliament may by law can include or exclude from that list.



Compulsory annual report should be submitted by the Governor to the President regarding the administration of Scheduled Areas.



Prior approval by Gram Sabha to all plans, projects (for socio-economic development) of govt. before implementation by Panchayats, identify beneficiaries under MGNREGS (Mahatma Gandhi National Rural Employment Guarantee Scheme) and other schemes.



Gram Sabha and Panchayat need to be consulted before acquisition of land in Scheduled areas for any purpose; planning and managing minor water bodies; license for minor minerals mining.



Regulate sale and consumption of intoxicants, ownership of minor forest produce, power to prevent alienation of land, manage village markets, money lending and institution working in social sector. PAGE 22



Reservation at every Panchayat shall be in proportion to the population of communities (only in scheduled areas).



Tribes Advisory Council [20 members – minimum 15 ST MLAs]: 1.

Paragraph 4(1) of the fifth schedule.

2.

To advice on such matters pertaining to the development and welfare of the STs in the state as to be referred to them by the Governor.

3.

Tribal Advisory Council has been constituted in the 9 Scheduled Area states: A.P. (including Telangana), Chhattisgarh, Gujarat, HP, JH, MH, MP, OD, RJ and 2 non-scheduled areas: TN and WB.

SIXTH SCHEDULE [ART. 244(2), ART. 275(1)] – TRIBAL AREAS – ATM Machine 

Provisions relating to the Administration of Tribal Areas in the States of Assam, Tripura, Meghalaya and Mizoram.



Autonomous Districts (District Council) and Autonomous Region (Region Council). There are several autonomous administrative divisions of India to which the central government has given varying degrees of autonomy within the state legislature.





State Govt. has significantly limited powers. Governor decides – 1.

The composition of District Councils and Regional councils and the allocation of seats therein.

2.

The delimitation of territorial constituencies for the purpose of elections to those councils

Powers: 1.

Allotment of land for purpose of agriculture, grazing, residential, or for any other purpose likely to promote the interests of the inhabitants.

2.

Establishment of Village or Town Communities and their powers; any other matter relating to village or town administration (including Police, Health and Sanitation, property, marriage and divorce, customs, courts and trials, ruling according to local customs).

3.

District Councils: Primary schools, Dispensaries, markets, ferries, roads, railways.

4.

Power to assess and collect revenue and Taxes on above mentioned list.

5.

Licenses for mineral extraction.

6.

Separate expenditure in budgets.

SEVENTH SCHEDULE [ART. 246] - LISTS List I: Union List [Art. 246(1)] (100 subjects – originally 97) List II: State List [Art. 246(3)] (61 – originally 66) List III: Concurrent List [Art. 246(2)] (52 –originally 47)  

Both Centre and State can make laws, but laws of Parliament will override the State provisions. Parliament can make laws on subjects under State List: 1. Art. 249 (Rajyasabha 2/3rd majority) 2. Art. 250 (Emergency) 3. Art. 252 (If two or more States request Parliament) 4. Art. 253 (For International agreement or Treaty)

PAGE 23

EIGHTH SCHEDULE [ART. 344(1) AND ART. 351] – LANGUAGES     

Languages recognized by Constitution: 14 originally Assamese, Bengali, Gujarati, Hindi, Kannada, Kashmiri, Malayalam, Marathi, Odiya (Oriya – 96th CAA – Delhi NCT also), Punjabi, Sanskrit, Tamil, Telugu, Urdu. 21st CAA: Sindhi [1] 71st CAA: Manipuri, Konkani, Nepali [3] 92nd CAA: Bodo, Dongri, Maithili, Santali [4]

(21 + 71 = 92)

(14+ 1 + 3 + 4 = 22 languages)

NINTH SCHEDULE [ART. 31B] – LAND REFORM ACTS    

Validation of certain acts and regulations of State Legislatures dealing with the Land reforms and abolition of Zamindari system. 1st CAA, 1951: prevention of judicial review on account of violation of FRs. Art. 31B ensured that any law in the IX schedule could not be challenged in courts and Govt. can rationalize its program of social engineering by reforming land and agrarian laws. In 2007, SC ruled that laws included in IX Schedule after April 24, 1973 (Kesavanda Bharati case) can be reviewed on grounds of violation of law of the land.

TENTH SCHEDULE [52ND CAA, 1985] – ANTI-DEFECTION LAW      

Anti-Defection Law: provisions relating to disqualification of MPs and MLAs/MLCs on grounds of defection. Voluntarily gives up the membership of political party (Ticket). If he votes or abstains from voting, contrary to any direction issued by the original political party without prior permission (15 days condoning period). Independent member: disqualified if he joins any party. Nominated member: if joins any party within 6 months then there is no problem. But after 6 months, disqualified. Exception: If a person from party A wants to join party B or to establish a separate party B then Merger with not less than 2/3 rd of members of party A should join new party then no one will be disqualified (the old group A may or may not maintain its identity). Before 91st CAA, 2003, it was only 1/3rd of members are sufficient to form a new party but now 2/3rd are required.

ELEVENTH SCHEDULE – PANCHAYAT [Art. 243G] [73rd CAA, 1992] [Vision of Gandhi] [Part IXB]  

Specifies the powers, authority and responsibilities of Panchayats (Art. 243G). 3 Tier govt., Art. 40 (Gandhian DPSP). Organization of Village Panchayats. 29 matters: 1. Agriculture, including agricultural extension. 2. Land improvement, implementation of land reforms, land consolidation and soil conservation. 3. Minor irrigation, water management and watershed development. 4. Animal husbandry, dairying and poultry. 5. Fisheries. 6. Social forestry and farm forestry. 7. Minor forest produce. 8. Small scale industries, including food processing industries. 9. Khadi, village and cottage industries. 10. Rural housing. 11. Drinking water. 12. Fuel and fodder. 13. Roads, culverts, bridges, ferries, waterways and other means of communication. 14. Rural electrification, including distribution of electricity. PAGE 24

15. Non-conventional energy sources. 16. Poverty alleviation program. 17. Education, including primary and secondary schools. 18. Technical training and vocational education. 19. Adult and non-formal education. 20. Libraries. 21. Cultural activities. 22. Markets and fairs. 23. Health and sanitation, including hospitals, primary health centers and dispensaries. 24. Family welfare. 25. Women and child development. 26. Social welfare, including welfare of the handicapped and mentally retarded. 27. Welfare of the weaker sections, and in particular, of the Scheduled Castes and the Scheduled Tribes. 28. Public distribution system. 29. Maintenance of community assets.

TWELFTH SCHEDULE – MUNCIPALITY [Art. 243W] [74th CAA, 1992] [Part IXA]  

Specifies the powers, authority and responsibilities of Municipalities. 18 matters: 1. Urban planning including town planning. 2. Regulation of land-use and construction of buildings. 3. Planning for economic and social development. 4. Roads and bridges. 5. Water supply for domestic, industrial and commercial purposes. 6. Public health, sanitation conservancy and solid waste management. 7. Fire services. 8. Urban forestry, protection of the environment and promotion of ecological aspects. 9. Safeguarding the interests of weaker sections of society, including the handicapped and mentally retarded. 10. Slum improvement and up gradation. 11. Urban poverty alleviation. 12. Provision of urban amenities and facilities such as parks, gardens, playgrounds. 13. Promotion of cultural, educational and aesthetic aspects. 14. Burials and burial grounds; cremations, cremation grounds; and electric crematoriums. 15. Cattle pounds; prevention of cruelty to animals. 16. Vital statistics including registration of births and deaths. 17. Public amenities including street lighting, parking lots, bus stops and public conveniences. 18. Regulation of slaughter houses and tanneries.

PAGE 25

STRUCTURE OF THE INDIAN CONSTITUTION Structure

Fundamental Essence

FR

Governance Aspect Vertical Governance

Horizontal Governance

DPSP

Division of Powers

Separation of Powers

FD

Centre(C) = States(S)

Executive (C&S)

Legislature (C&S) Integrated Judiciary

OUTSTANDING FEATURES OF INDIAN CONSTITUTION 

The presence of Fundamental essence in the form of FRs, DPSPs, FDs.



The FRs are enforceable Rights.



DPSPs contain Non-enforceable Rights and certain ideals of the State.



FDs are addressed to citizens.



The concept of Social, Economic, Political Justice; Liberty of Thought, Expression, Belief, Faith and Worship; Equality of Status and Opportunity, Promoting Fraternity, assuring Dignity, Unity and Integrity – are the part of spirit of the Constitution i.e., the very reason for the existence of the Constitution



An Independent Judiciary, in this regard, to interpret relationship between FRs, DPSPs and FDs.



The existence of Dual Polity and Division of Powers between them.



In this regard, Our Constitution be a UNIQUE BLEND OF RIGIDITY AND FLEXIBILITY and best described as FEDERAL SUI-GENESIS. (Sui – Unique, Genesis - Birth)



An Independent Judiciary, in this regard, to arbitrate disputes between Units of Federation and to interpret the Constitution.



Existence of British Parliamentary form of Governance both at the Union and at the State levels but without its Monarchy. India is a Republic where Sovereignty lies with the people.



In this regard, an Independent Judiciary to examine the competence (law making power) of Legislature and propriety of the Executive.

PAGE 26



Integration of more than 550 states and treating them at par with the provinces. Further resolving to constitute India into a Sovereign, Socialist, Secular, Democratic and Republic. Further striking the balance between Parliamentary Supremacy (UK) and Judicial Supremacy (USA), Indian Judiciary may review the State action but not the wisdom of the Legislature in enacting laws for promoting Constitutional aspirations like Socialistic setup. The Courts cannot review Policy decisions. (Review: Court can ask that how the Govt. is issuing Aadhar Cards to Citizens even the Bangladeshi people are getting it. Wisdom of Legislature: But Court cannot ask the Govt. about Aadhar Card Mission)



Granting Universal Adult Suffrage or Franchise or Right to Vote and no communal representation.



The Composition being – Written part, Conventions as well as Judicial interpretation.

PAGE 27

THE UNION AND ITS TERRITORY [Art. 1 – Art. 4] [Part 1] ARTICLE 1 

India, that is Bharat, shall be union of States.



The States and Territories will be specified in the first schedule.



The territory of India can be classified into 3 types:





1.

Territories of States (29)

2.

Union Territories (7)

3.

Territories that may be acquired by the Govt. of India at any time

“An Indestructible Union of Destructible States ” – i.

Parliament can redraw the political map of India according to its will.

ii.

The territorial integrity or continued existence of any state is not guaranteed by the constitution.

No consensus (not accepted wholly) regarding the name. Some members of Constituent Assembly suggested the traditional name – Bharat while others suggested the modern name – India. Hence the Constituent Assembly had to adopt a mix of both (India, which is Bharat).



Because of the past bitter experiences of partition and the massive problem faced with the integration of princely states, the word UNION is used rather than FEDERATION.



According to Dr. B.R.Ambedkar, the reasons of using the phrase ‘UNION OF INDIA’ were: 1.

Indian federation is not the result of an agreement among the States like the American federation.

2.

The States have no right to secede from federation.

3.

The federation is called a Union because it is indestructible.

4.

The country is an integral whole and divided into different states only for the convenience of administration.

ARTICLE 2 Parliament may by law admit a new State into the Union of India, or establish, new states on such terms and conditions as it thinks fit. Thus Art. 2 grants two powers to the Parliament: 1.

The power to admit the new States into the Union of India. E.g.: Sikkim via 36 th CAA 1975 according to Art. 2(A).

2.

The power to establish new States. E.g.: Telangana.

ARTICLE 3 Parliament has power to reorganize the States (exception: J&K). Art. 3 authorizes the parliament to – 1.

Form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State.

2.

Increase the area of any State (diminish also).

3.

Alter the boundaries of State.

4.

Alter the name of any State.

PAGE 28



Recommendation of President is absolutely required to form the new State or any alternation.



The State of Jammu and Kashmir enjoys the special position by virtue of Art. 370. It has its own separate State Constitution. IPC is not valid, Ranbir Code is valid there.



President has to refer the bill to the concerning State Legislature(s) concerned for expressing their views within a specified period. These views may or may not be accepted by the President or by the Prime Minister, even if in time. If not in time, does not matter anyway.



No need to make a fresh reference to the State Legislature every time an amendment to the bill is moved and accepted by the Parliament.



Union Territory, parliament is Supreme, can take any decision without any reference.

ARTICLE 4 

Laws made under Art. 2 and Art. 3 shall contain such provisions for the amendment of the First Schedule (territories) and the Fourth Schedule (Rajyasabha seats) and may also contain such supplemental, incidental and consequential matters.



No such law is made for the purposes of Art. 368 (Constitutional Amendment Procedure). Telangana, Chhattisgarh etc. were came into being with NO AMENDMENT.

HOW DID PRESENT PICTURE CAME INTO EXISTENCE? Phase 1: 

Integration of Princely States.



Before Independence, there were two political categories – i.

The British provinces (which were under direct control of Britain)

ii.

The Princely States (under the rule of native princes but subject to the paramountcy of the British Crown)



India Independence Act 1947 created India and Pakistan.



So automatically, these Princely States had 3 options viz., joining Republic India, joining Pakistan or remaining Independent. Of the 552 Princely States situated within the geographical boundaries of India, 549 joined India and the remaining 3 (Hyderabad, Junagarh, Kashmir) refused to join India. i.

Hyderabad – Police Intervention and action

ii.

Junagarh – Referendum

iii.

Kashmir – Instrument of accession by Maharaja Hari Singh

Phase 2: 

Demand from different regions, particularly from South India for reorganization of States under Linguistic basis.



Linguistic provinces Commission or S.K. Dhar Commission in 1948 recommended the reorganization of States should be done on the basis of Administrative convinces rather than Linguistic factor.



JVP Committee: It Consisted of Jawaharlal Nehru, Valla Bhai Patel and Pattabhi Sitaramayya in 1949. It formally rejected language as the basis for the reorganization of States.

PAGE 29



Prolonged popular agitation and the death of Potti Sriramulu, a popular Congress person, after 56 days of hunger strike for the creation of Andhra Pradesh. So, in October 1953, the Govt. of India was forced to create the first Linguistic State, known as Andhra State, by separating the Telugu speaking areas from Madras.



The creation of Andhra State intensified the demand from other regions for the division on the Linguistic basis.



Fazil Ali Commission, 1955: Broadly accepted language as the basis of reorganization of States. But, it rejected the theory of ‘One Language – One State’. It identified 4 major factors that can be taken into account in any scheme of reorganization of States: 1.

Preservation and Strengthening of the Unity and Security of the Country.

2.

Linguistic and Cultural homogeneity.

3.

Financial, Economic and Administrative consideration.

4.

Planning and promotion of the welfare of the people in each State as well as of the nation as whole.



Continuous change due to the pressure of popular agitations and political conditions.



Maharashtra and Gujarat in 1960, the bilingual state of Bombay was divided into separate two States – Maharashtra for the Marathi speaking people and Gujarat for Guajarati Speaking people.



Nagaland: In 1963, the State of Nagaland was formed by taking the Naga Hills and Tuensang area out of the State of Assam, to satisfy the movement of the hostile Nagas.



Haryana, Chandigarh, Himachal Pradesh (Shah Commission): In 1966, the State of Punjab was bifurcated to create Haryana, the 17th State of India, and the UT of Chandigarh because demand for a separate ‘Sikh homeland’ (Punjabi Subha) raised by the Akali Dal under the leadership of Master Tara Singh. Declared as State, H.P. in 1972 (from 1966 it was UT).



Manipur, Tripura and Meghalaya: 1972



Sikkim: 1975



Mizoram, Arunachal Pradesh, Goa (23rd, 24th and 25th) states in 1987 by signing on a memorandum of settlement (Mizoram Peace accord) in 1986 between the Central Govt. and the Mizo National front, ending the two decade old insurgency.



Chhattisgarh, Uttarakhand, Jharkhand out of territories of M.P., U.P. and Bihar in 2000.



On June 2, 2014: Telangana became 29th State of India.



Thus, 29 States (from 14) and 7 UTs (from 6).

NAME CHANGE 

1950: UP (United Provinces) – Uttar Pradesh



1969: Madras – Tamil Nadu



1973: Mysore – Karnataka Laccadive, Minicoy, Amindivi – Lakshadweep



1992: UT of Delhi was re-designated as the NCT of Delhi (without being conferred the status of full-fledged State by 69th CAA,1991)



2006: Uttaranchal – Uttarakhand



2011: Orissa – Odisha

PAGE 30

CITIZENSHIP [Art. 5 – Art. 11] [Part 2] 5.

Citizenship at the commencement of Constitution. (birth or either of his parents or ordinary resident for not less than 5 years in the Indian territory)

6.

Rights of Citizenship of certain persons who have migrated to India from Pakistan. a) He or either of his parents or either of his grandparents was born in India; and b) (i) if he migrated before 19 July 1948, he has been ordinarily resident of India since he migrated; or (ii) If he migrated after 19 July 1948, he has been registered as a citizen by an officer appointed by Govt.

7.

Rights of Citizenship of certain migrants to Pakistan (they should be migrated before 1 March 1947) and again came to back to India under Resettlement Permit (19 July 1948). If anyone migrated to Pakistan after March 1, 1947 then they are not citizens of India anymore.

8.

Rights of Citizenship of certain Persons of Indian Origin (PIO) residing outside India.

9.

People voluntarily acquiring citizenship of a foreign state not be citizens.

10. Continuance of the rights of citizenship. 11. Parliament to regulate the right of citizenship by law.

PIO CARD HOLDER (Ministry of Home Affairs Scheme: 15.Sept.2002) (9.Jan.2015 merged with OCI i.e., Lifelong validity but few differences) Eligibility: A "Person of Indian Origin" means a foreign citizen not being a citizen of Bangladesh, Pakistan, Afghanistan, Bhutan, China, Nepal, and Sri Lanka. Any person: 1.

Who at any time held an Indian passport; or

2.

who or either of his parents or grandparents or great grandparents was born in and was a permanent resident in India as defined in the Government of India Act, 1935 and other territories that became part of India thereafter provided neither was at any time citizens of any of the aforesaid countries (as referred above) ; or (Iranian origin can apply for PIO only on basis of their parents or grandparents Indian origin proof)

3.

Who is a spouse of a citizen of India or a PIO

OCI (OVERSEAS CITIZEN OF INDIA) CARD HOLDER (2005) – No Pakistan and Bangladesh Origin Eligibility: Any foreign national who satisfies any of the following eligibility criteria: 1.

was a citizen of India

2.

was eligible to become a citizen of India on January 26,1950

3.

Belonged to any of the following territories that became part of India after August 15, 1947 (Sikkim, Goa, Puducherry, Daman and Diu…)

4.

a child or grandchild or great grandchild of a person that meets the criteria 1 through 3 above

5.

a minor child of a person mentioned in the criteria 1 through 4 above

6.

a minor child whose both parents or one of them are citizens of India

PAGE 31

7.

spouse of foreign origin of a citizen of India or OCI holder and whose marriage has been registered and subsisted for at least two years immediately before applying

Benefits for both OCI and PIO: 

A multiple entry, multi-purpose LIFELONG Visa for visiting India.



No need of registration with local police for any duration.



Parity with NRIs in respect of economic, financial and educational fields except in relations to acquisition of agricultural or plantation properties.



No parity shall be allowed in the sphere of Political rights with citizens.



May be granted Indian citizenship:

OCI: Can apply for Indian citizenship after 5 years. Must have stayed in India for at least 1 year. PIO: Can apply for Indian citizenship after being ordinarily resident of India for 7 years. 

All activities except Mountaineering, missionary, research work and visiting protected/restricted areas which require specific permit.



OCI slightly have more rights than PIO.

Inner Line Permit (ILP): only for Indian citizens to enter into protected areas (mostly N-E areas, some parts of Rajasthan, Kashmir, Uttarakhand, and Himachal Pradesh) for limited time period. Because, Indians have right to move to any part of the country and can settle, do business. So to restrict that right and to protect Tribal customs and cultures, ILP is required. Protected Area Permit (PAP): Issued to a group (More than 1 person: min. 2). Non-Indians to protected areas (above mentioned states). For limited time period. Restricted Area Permit (RAP): Issued to individuals. Non-Indians to restricted areas (all Andaman Islands and parts of Sikkim). Indians do not need special permission to visit restricted areas. Problems with PAP and RAP: Native people from the concerned areas who are married to a Non-India or having children of different nationality cannot settle permanently in their native area with their family because it’s not possible to get a permanent permit for their Non-Indian family members.

SINGLE CITIZENSHIP 

Despite being federal, only a single Indian Citizenship i.e., citizens in India owe allegiance (loyalty) only to the Union. There is no separate State Citizenship.



USA and Switzerland adopted the system of Double Citizenship. In USA, each person is not only a citizen of USA but also of particular State to which he belongs. Thus he owes allegiance to both and enjoys dual sets of rights, which sometimes leads to discrimination.



In India, all citizens irrespective of the State in which they are born or reside enjoy the same political and civil rights of citizenship all over the country without any discrimination.



Exceptions: 1.

The Parliament (under Art. 16) can prescribe residence as a condition for certain employments or appointments. E.g.: Andhra reserves jobs of grade 3 &4 for localities only.

2.

Art. 15 prohibits discrimination against any citizen only on grounds of religion, race, caste, sex or place of birth (not on the ground of residence). So, those rights not covered by constitution can be discriminated against. PAGE 32

3.

The freedom of movement and residence (under Art. 19) is subjected to the protection of interests (distinctive culture, language, customs and manners) of any Schedule tribe as a safeguard against exploitation.

4.

J&K state legislature can confer any special rights and privileges in matters of employment under the State govt., acquisition of immovable property in the State etc.

RIGHTS ONLY FOR INDIAN CITIZENS 

Art. 15, 16 and 19, 29, 30.



Right to vote in elections to the Loksabha and Assembly.



Right to contest for the Membership of Parliament and State Legislatures.



Eligibility to hold certain public offices, that is, President of India, Vice-President, Judges of SC & HCs, Governors, Attorney General of India, Advocate General of States.

THE CITIZENSHIP ACT, 1955: RTD – LOSS OF CITIZENSHIP: 3 WAYS 

By Renunciation: Renunciation is a voluntary act by which a person, after acquiring the citizenship of another country, gives up his Indian citizenship. Minor children of that person also loses Citizenship (at the age of 18, child may resume Indian Citizenship).



By Termination: Termination takes place by operation of law when an Indian Citizen voluntarily (consciously, knowing and without duress, undue influence or compulsion) acquires the citizenship of another country. The Indian Citizenship automatically terminates.





By Deprivation: It is a compulsory termination of Indian Citizenship by the Central Govt., if: 1.

Obtained the citizenship by fraud

2.

Shown disloyalty to the Constitution of India

3.

Unlawfully traded or communicated with the enemy during the war

4.

Citizen has, within 5 years after registration or naturalization, been imprisoned in any country for two years

5.

The citizen has been ordinarily resident out of India for 7 years continuously

Renunciation + Termination – not applicable in case of War.

ACQUIRING CITIZENSHIP: 5 WAYS 

By Birth: Not available for Foreign Diplomats and enemy aliens. 1.

26 January 1950 – 1 July 1987: irrespective of the nationality of his parents.

2.

1 July 1987 – 3 December 2004: only if either of his parents is a citizen of India at the time of his birth.

3.

After 3 Dec 2004: only if both of their parents are citizens of India or one of whose parents is a citizen of India and other is not an illegal migrant at the time of his birth.



By Descent: A person born outside India 1.

26 January 1950 – 10 December 1992: his father was a citizen at the time of his birth

2.

10 Dec 1992 – 3 Dec 2004: either of his parents was a citizen at the time of his birth

3.

After 3 Dec 2004: after birth < 1 year: register birth at an Indian Consulate

But > 1 year: with the permission of Central Govt. and does not hold any other passport 

By Registration: The Central Govt. may on an application register as a citizen of India (any person not being an illegal migrant) 1.

PIO with 7 years of residence in India. PAGE 33

2.

Spouse of Indian Citizen with 7 years ordinary residency.

3.

Minor or Adult Children of Indian Citizen.

4.

Adult living immediately for 1 year in India who or either of his parents was citizen of Independent India.

5.

OCI living for 5 years, and who has been residing in India for 1 year before making an application for registration.



By Naturalization: A foreigner can acquire citizenship of India by applying for such before a competent authority provided, if a person has rendered distinguished service of the Science, Philosophy, Art, Literature, World peace or Human progress. 1.

He should have the similar provisions in his country as India.

2.

Renounce his citizenship of previous nation if application for Indian Citizenship is being accepted.

3.

Either resided or been in the Central Govt. service (or both) throughout the period of 12 months (continuously) immediately after preceding the date of application.

4.

11 out of 14 years (in last 15 years) immediately before 12 months, he has either resided in India or been in the service of Govt. of India (or both).



5.

Good Character.

6.

Adequate knowledge of a language in VIII Schedule.

7.

If accepted, he intends to reside and or work in India.

By Incorporation of Territories: If any foreign land becomes a part of India and the Govt. of India specifies the person who among the people of territory shall be citizens of India. E.g.: Goa, Sikkim, Puducherry.

PAGE 34

FUNDAMENTAL RIGHTS [Art. 12 – Art. 35] [Part 3] Right not to be taxed without authority of law (Art.265) Fundamental Rights Right to Property (Art.300A)

Legal Rights

Constitutional Rights Other Constitutional Rights

Right to Inter State Trade and Commerce Right to Information Right to Universal Suffrage and Adult Suffrage (Art.320) Right to free legal aid

Right to Primary Education Non-Constitutional Rights

Right to enforce Contract

Right to vote

Right to contest elections



These are called as ‘Corner Stone’ of Indian Democracy.



Adopted from ‘Bills of Rights’ of USA Constitution. Also called as ‘Magna Carta’ (Great Character).



Justiciable (enforceable that is why called as Magna Carta) [SC under Art. 32, HC under Art. 226]



Most elaborated Fundamental Rights in the World.



No discrimination among citizens on any basis [Art. 15, 16, 17, 18].



Uphold the equality of all individuals, the dignity of the individual, the larger public interest and Unity and Integrity of the nation.



Promote the idea of Political Democracy.



Prevent the establishment of an authoritarian despotic (tyrannical ruler – threat of it) rule and protect the liberty and freedom of the people against the invasion by State [Art. 19]



Aim of establishing a Govt. of Law and not of men.



FRs are Amendable.

WHY FUNDAMENTAL? 

Basic or Fundamental needs of Citizens.



Guaranteed and protected by the Constitution (Art. 32), which is fundamental law of the land.



Form the back bone, core and soul of the Constitution.



They are most essential for the all-round development (material, intellectual, moral and spiritual) of the individuals.



The Constitution provides 6 Fundamental Rights – 1.

Right to Equality [Art. 14 – 18]

2.

Right to Freedom [Art. 19 – 22] PAGE 35



3.

Right against Exploitation [Art. 23 – 24]

4.

Right to freedom of Religion [Art. 25 – 28]

5.

Cultural and Educational rights [Art. 29 – 30]

6.

Right to Constitutional Remedies [Art. 32]

Originally, they were 7 but Art. 31 (Right to Property) was removed from the list by 44th CAA, 1978 and also Art. 19(1)(f) is not fundamental. Right to Property is made as a Legal Right under Art. 300A in Part XII.

LIST OF FRS Right to Equality     

Article 14: Equality before law and equal protection of law Article 15: Prohibition of discrimination on grounds only of religion, race, caste, sex or place of birth. Article 16: Equality of opportunity in matters of public employment Article 17: End of untouchability Article 18: Abolition of titles, Military and academic distinctions are, however, exempted

Right to Freedom 

Article 19: It guarantees the citizens of India the following six fundamentals freedoms:1. 2. 3. 4. 5. 6.

  

Freedom of Speech and Expression Freedom of Assembly Freedom of form Associations Freedom of Movement Freedom of Residence and Settlement Freedom of Profession, Occupation, Trade and Business

Article 20: Protection in respect of conviction for offences Article 21: Protection of life and personal liberty Article 22: Protection against arrest and detention in certain cases

Right against Exploitation  

Article 23: Traffic in human beings prohibited Article 24: No child below the age of 14 can be employed

Right to freedom of Religion    

Article 25: Freedom of conscience and free profession, practice and propagation of religion Article 26: Freedom to manage religious affairs Article 27: Prohibits taxes on religious grounds Article 28: Freedom as to attendance at religious ceremonies in certain educational institutions

Cultural and Educational Rights  

Article 29: Protection of interests of minorities Article 30: Right of minorities to establish and administer educational institutions PAGE 36

 

Article 31: Omitted by the 44th Amendment Act Even though Articles 31A, 31B, 31C are included in this chapter, they are not considered as FRs.

Right to Constitutional Remedies 

Article 32: The right to move the Supreme Court in case of their violation (called Soul and heart of the Constitution by Dr. B.R. Ambedkar)

FEATURES OF FRS 

Some of them are only available to citizens (Art. 15, 16, 19, 29, 30) and rest are available both to citizens and aliens (except enemy alien: citizen of country which India is in war at that particular moment).



Art. 14, 15, 19, 21 are included in the Basic Structure of the Constitution.



Not absolute but qualified (reasonable restrictions restricted by the courts). Strike a balance between the Rights of Individual Liberty and Social control.



Most of the rights are against State’s arbitrary action. So when such rights are violated by the private individuals, there are no Constitutional remedies but only legal remedies. Except Untouchability (17), Exploitation (23 & 24) and freedom of movement (19(1)(d)) that are enforceable to the individually.



Generally an Ordinary right is a right which is against another individual (sometimes State also) but the FR is a right which an individual have against the State.



Some negative (place limitations on State – Right against Employment, Right against Exploitation, and Right against Untouchability), while others are positive in nature (Right to Education, Right to Life…).



Justiciable, allowing persons to move the court for their enforcement as they are defended and guaranteed by the Supreme Court under Art. 32 if they are violated.



They are not sacrosanct or permanent. Change can be done by CAA (which are not covered under Basic Structure of the Constitution).



Can be suspended during National Emergency (Art. 352) except Art. 20, Art. 21. Six rights of Art. 19 can be suspended only when Emergency is declared on the grounds of war or external aggression (i.e., external emergency) and not on the ground of armed rebellion (i.e., internal emergency).





Limited by Art. 31A. o o

acquisition by the State of any estate taking over of the management of any property by the State for a limited period

o

the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations

These are not valid to the members of Armed forces, Paramilitary forces, Police forces, Intelligence agencies and Analogous services can be restricted or abrogated by the Parliament (Art. 33).



FR restricted while Rule by Martial Law is in force (Military rule imposed under abnormal circumstances to restore order (Art. 34)) (not National Emergency).



Mostly directly enforceable (self-executory) while some are like Art. 21A (Right to Education) can be enforced on the basis of law made for giving effect to them. Such a law can be made only by the Parliament and not by the State Legislatures (to maintain a uniform standard in entire nation) under Art. 35.

PAGE 37

ARTICLE 12 – DEFINITION OF STATE 

Executive organs: Government of India and States.



Legislative organs: Parliament and Legislatures of States.



Judiciary and Quasi-Judiciary Bodies.



All local authorities, that is, Municipalities, Panchayats, District boards, Improvement trusts etc.



All other authorities, that is, Statutory (created by Statute - Legislature) and Non-Statutory authorities (created by the Executive) like LIC, BHEL, SAIL, GAIL, NITI Aayog etc. or even a private body or an agency working as an instrument of the State (‘State’ – those get financial resources from Govt. and ‘not the State’ – those which are not financed by the govt., such as autonomous bodies. E.g. NCERT).



If these agencies violate FRs then one can move the court.

Statutory Body: 

Statutory bodies are established by acts which Parliament and State Legislatures can pass.



Basically, a statutory body is an organization of government which is not defined in Constitution of India but it gets its powers, service rules, authority by an act of parliament or state legislatures.



Under law, statutory bodies are organizations with the authority to monitor that the activities of a business and check whether these institutions are legal and follow official rules.



For example, the General Medical Council is the statutory body which regulates doctors.



Important Statutory Bodies – 1.

National Human Rights Commission

2.

National Commission for Women

3.

National Commission for Minorities

4.

National Commission for Backward Classes

5.

National Law Commission

6.

National Green Tribunal

Regulatory Body: 

A regulatory body also called regulatory agency is a public authority or a government agency which is accountable for exercising autonomous authority over some area of human activity in a regulatory or supervisory capacity.



It is established by legislative act in order to set standards in a specific field of activity, or operations, in the private sector of the economy and to then implement those standards.



Regulatory interventions function outside executive observation.



They also exercise a judicial function often performed before a quasi-judicial official called an administrative law judge, who is not part of the court system. Some independent regulatory agencies perform investigations or audits.



Important Regulatory bodies: 1.

Press council of India

2.

Directorate General of Civil Aviation

3.

Reserve Bank of India

4.

The Food Safety and Standards Authority of India (FSSAI)

5.

Central pollution control board

6.

Inland Waterways Authority of India PAGE 38

Quasi-Judicial Bodies: 

Quasi-judicial bodies are institutes which have powers analogous to that of the law imposing bodies but these are not courts.



They primarily oversee the administrative zones.



Quasi-judicial action may be appealed to a court of law.



These organizations generally have authorities of settlement in matters like breach of discipline, conduct rules, and trust in the matters of money or otherwise.



Important quasi-judicial bodies – 1.

National Human Rights Commission

2.

State Human Rights Commission

3.

Central Information Commission

4.

State Information Commission

5.

National Consumer Disputes Redressal Commission

6.

State Consumer Disputes Redressal Commission

ARTICLE 13 – LAWS INCONSISTENT WITH FRS 

The State shall not make any law which takes away FRs is considered to be as void and unconstitutional from the day of commencement of that law.



24th CAA, 1971: Nothing in this article shall apply to any amendment of this Constitution made under A 368.



Provides judicial review of all laws.



Thus Art. 13 provides teeth to the FRs and makes them justiciable i.e. enforceable in courts.



Law (which is mentioned above) – 1.

Permanent laws enacted by the Parliament or State legislatures;

2.

Temporary laws like Ordinances issued by President (under Art.123) or State Governors (Art. 213);

3.

Statutory instruments in the nature of legislation (executive legislation – Bureaucrats) like Order, bye-law, rule, regulation or notification; and

4.

Non-legislative sources of law, that is, custom or usage having the force of law.

CAA: Constitutional Amendment Act is NOT a LAW and hence cannot be challenged under Art. 13 up to 24.4.1973. However, the SC in the Kesavananda Bharati case that a CAA can be challenged on the ground it violates a FR that forms a part of the Basic Structure and hence, can be declared as a void. Doctrine of Judicial Review: All laws that are inconsistent with or in derogation of any of the FRs shall be void. SC (Art. 32) and HC (Art. 226) can declare a law unconstitutional and invalid on the ground of contravention of any of the FRs.

EQUALITY [Art.14 – Art.18] – 15, 16, 19, 29, 30 are for ONLY CITIZENS 

The Principle of Equality runs like a “Golden thread” throughout the constitution and its importance is reflected by the position of it finds in the Part III of the Constitution.



One of the foremost rights provided by the Constitution is Right to Equality, which is also justified by the fact that whenever other rights are violated Art.14 also gets violated. PAGE 39



Preamble of the Constitution speaks of “Equality of Status and of opportunity” and Art.14 gives effect to it.

ARTICLE 14 – EQUALITY BEFORE OF LAW AND EQUAL PROTECTION OF LAWS State shall not deny to any person (means to any legal person and includes citizens, foreigners, corporation, companies, registered societies) equality before law or equal protection of the laws within the territory of India. Rule of Law is the Basic feature of Indian Constitution, hence no amendment. Equality before Law: 

Absence of any special privileges.



All persons are subjected to the same ordinary law of the land administered by ordinary law courts.



No person (whether rich or poor, high or low, official or non-official) is above the law.

Equal protection of Law: 

Positive concept from USA.



Equality of treatment under equal circumstances.



The State can treat different persons differently if circumstances justify such treatment. Further, the identical treatment in unequal circumstances would amount to inequality.



E.g.: Two persons who attempted the murder, could receive vastly different punishments depending upon circumstances surrounding each other. Just as we would not want the law blindly discriminate people on any basis, at the same time, we would not want the law forced all the people, regardless of conditions, to be treated alike.



Exceptions: 1.

2.

President and Governor (Art. 361) – i.

Not answerable to any court for the exercise of the powers and duties of their office.

ii.

No criminal proceedings or arrest warrants against them during their tenure.

iii.

Notice should be given in civil proceedings before 2 months.

No MP/MLA shall be liable to any proceedings in any court in respect of anything said or any vote given by him in parliament or any committee therefore. [Art. 105 – MP] [Art. 194 – MLA]

3.

Foreign Diplomats, U.N. and its agencies: immunity from criminal and civil proceedings.

ARTICLE 15 – NO DISCRIMINATION 

State shall not discriminate against any citizen only on grounds of religion, race, caste, sex or place of birth-RRCSP.



‘Discrimination’ means ‘to make an adverse distinction with regard to’ or ‘to distinguish unfavorably from others’ while ‘only’ word refers to discrimination on any other grounds is not prohibited.



Only – means other grounds (rational factor) + any or all RRCSP can be valid



No citizen shall be subjected to any disability, liability, restriction only on grounds of religion, race, caste, sex or place of birth with regard to – a) Access to shops, public restaurants, hotels and places of public entertainment b) The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly by State funds or dedicated to the use of general public.



Exceptions: a) Special provisions for women and children. For e.g., reservation of seats for women in social bodies or right to education for children – Art. 15(3) b) The State is permitted to make any special provision for the advancement of any socially and educationally backward classes (SEBCs) of citizens or for the SCs and STs. For e.g., reservation of seats or fee concessions

PAGE 40

in public educational institutions and reservation in employment, regarding their admission to educational institutions including private educational institutions, whether added or unaided by the State, except the minority educational institutions. 

Analyze: 14, 15, 16, 46, 335



Affirmative Actions: i)

Proportionate reservation: reservation of seats for SEBC under 15(4) and 16(4).

ii) Adequate reservation: particular community is under represented and measures are taken to achieve desired level. E.g. 33% reservation for women in Panchayat Raj institution. iii) Compensatory reservation: 50% of seats of ST’s in Panchayat Raj Institution in Scheduled Areas (Art. 244).

ARTICLE 16 – EQUALITY OF OPPORTUNITY IN PUBLIC EMPLOYMENT 1.

There shall be equality of opportunity of all citizens in matters relating to employment or appointment to any office under the State.

2.

No citizen shall be discriminated only on the grounds of religion, race, caste, sex, descent and place of birth, residence or any one of them in respect to any employment or appointment to any office under the State.

3.

Nothing in this article shall prevent the Parliament from making any law for considering the place of residence within that State or UT as the prior requirement for a class or classes of employment or appointment of any office under the State.

4.

Provision for the reservation of appointments or posts in favor of any backward class of citizens which in the opinion of State, is not adequately represented in the services under the State. [SC – 15%, ST – 7%, OBC – 27%. Total – 49%. General – open to all including SC, ST, OBC including – 51%]

4A. Nothing in this article shall prevent the State from making any provision for reservation in matters in promotion (77th CAA, 1995), with consequential seniority (85th CAA, 2000), to any class or classes of posts in the services under the state in the favor of SCs and STs which in the opinion of the State are not adequately represented in the services under State. 4B. Carry forward rule: This act provided that the unfilled vacancies of a year reserved for SC/ST kept for being filled up in a year as per Art. 16 shall be considered separately for filling vacancies in succeeding year and the previous list will not be considered for filling the 50% quota of the respective year (81 st CAA, 2000). E.g.: 2014 – Total 160 seats – 50% seats are reserved 80 – 30 unfilled 2015 – Total 160 + 30 seats – 50% seats are reserved 80 + 30 unfilled last year = 110 seats are reserved out of 190. If not considered separately, 160+30=190. 50% seats = 95 seats but it is unlawful that must be 110. o

In Indra Sawhney V. UOI, 1992, after report from Mandal Commission, SC held that reservation shall not exceed 50% except in some extra ordinary situation. This rule need to be applied every year.

o

But in some States, it exceed that limit. For e.g., 76 th CAA, 1994 has placed the Tamil Nadu Reservations Act of 1994 in the IX Schedule to protect it from judicial review as it provided for 69% reservation.

5.

Religious qualification can be laid down for incumbent of an office in connection with affairs of religious and denominational institutions.

ARTICLE 17 – ABOLITION OF UNTOUCHABILITY 

Absolute right (Art. 24 – prohibition of employment of children also) (Cannot be suspended at any time. Available against individual also. No exception during any time (War time also)).

PAGE 41



It is an offense punishable in accordance with the law. This law is made by the Parliament and not by the State Legislature.



Untouchability is not be taken literally but the practice as it has developed historically in the country imposing social restrictions on certain classes of persons by reason of their birth in certain castes.



A person convicted of the offense of the Untouchability is disqualified for the Elections to the Parliament or the State Legislature.



Under the Protection of the Civil Rights Act, 1955, the offenses on the ground of Untouchability are as follows – 1.

Preventing any person from entering any place of public worship or from worshiping therein.

2.

Justifying Untouchability on traditional, religious, philosophical or other grounds.

3.

Denying access to any shop, places of any of public entertainment, hotels.

4.

Insulting a person belonging to SC on the ground of Untouchability.

5.

Refusing to admit persons in hospitals, educational institutions, hostels established for Public benefit.

6.

Preaching Untouchability directly or indirectly.

7.

Refusing to sell goods or render services to any person.

ARTICLE 18 – ABOLITION OF TITLES This article abolishes Titles and makes 4 provisions in that regard – 

State cannot confer (grant) any title (except Military or academic distinction) to anyone (PadmaSri etc. are Awards).



No citizen of India shall accept any title from Foreign State.



A foreigner holding any office of profit or trust under the State cannot accept any title from any foreign State without the consent of the President.



No citizen or foreigner holding any office of profit or trust under the State shall not accept any present, emolument or office from or under any foreign state without the consent of the President.



To counter the colonial mentality, hereditary titles of the nobility like Maharaja, Raj Bahadur, Rai Bahadur, Rai Sahib, Dewan Bahadur etc. are banned.



Against the principle of equal status of all.



National Awards – Bharat Ratna, Padma Bhushan, Padma Vibhushan and Padma Sri, were discontinued by Morarji Desai Govt. from 1977 – 1980.



In 1996, SC ruled that these awards recognize merit and do not amount to ‘titles’ within the meaning of Art. 18.

ARTICLE 19 - RIGHT TO FREEDOM 

Art. 19 provides 6 Rights like 19(1)(a) to 19(1)(g) [19(1)(f) was deleted by 44th CAA, 1978].



They are available to the citizens (individuals and shareholders in a company) only against State.

a) Right to freedom of Speech and Expression: Every citizen can express his belief and opinions by almost any means possible. Broad interpretation and includes: propagate other’s view press, commercial advertisements, telecasting, RTI, silence, peaceful demonstration and freedom against strike, pre-censorship, telephonic tapping, bund etc. There are 8 restrictions on this right: 1.

Sovereignty and Integrity of the Nation

2.

Security of the State

3.

Contempt (disapproval) of Court

4.

Friendly relations with the Foreign States

5.

Public Order PAGE 42

6.

Decency or Morality

7.

Defamation (statement inures 3rd party reputation)

8.

Incitement (Pressuring or threatening to do) to offence

b) Right to assemble peaceably and without arms: Public meetings, demonstrations and takeout processions, no right to strike. 

Under section 144 of Criminal Procedure Code (CrPC), a magistrate can restrain an assembly if any unlawful activity is suspended.



Under section 141 of IPC, as assemble of 5 or greater persons becomes unlawful if the object is to – i.

Resist the execution of any law or legal process;

ii.

Forcibly occupy the property of some person;

iii.

Commit any mischief or criminal trespass;

iv.

Some person to do any illegal act;

v.

Threatened the govt. or its officials on exercising lawful powers.

c) Right to form associations or unions or co-operative societies (97th CAA – part IXB) (Art. 43B – DPSP): includes the right to form political parties, companies, partnership firms, societies, clubs, organizations, trade unions etc. start and continue. Also negative right (not to join). 

The SC held that the Trade unions have no guaranteed right to effective bargaining or right to strike or right to declare a lock out.

d) To move freely throughout the territory of India: Throughout the territory of the country, inter or intra-state. Indian citizens and not the State citizens. Thus the purpose is to promote national feeling and not parochialism (localism). 

Restriction on movement of prostitutes and AIDS patients (Bombay High court restricted AIDS patients).



The entry of outsiders in tribal areas is restricted to protect the distinctive culture, language, custom and manners of Scheduled Tribes and to safeguard their traditional vocation and properties against exploitation.



Internal Movement (Art. 19) and External movement freely (Art. 21).

e) To reside and settle in any part of the Indian Territory: 2 dimensions. 

The right to reside in any part of the country which means to stay at any place temporarily.



The right to settle at any part of the country which means to setup a home or domicile at any place permanently. Similar reasonable restrictions (Regulation of movement of prostitutes), Complimentary to freedom of movement.

f)

Repealed.

g) To practice any profession or to carry on any occupation, trade or business: Includes all the means of earning one’s livelihood – not include trade which are immoral (trafficking in women or children) or dangerous (harmful drugs or explosives etc.). The State can absolutely prohibit these or regulate them through licensing. Reasonable restrictions on Art. 19: 

General: Sovereignty, Unity and Integrity of India, Security, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, and incitement to an offense.



Specific: Movement and residence – interest of general public and STs; trade and business – professional or technical qualifications and partial or complete monopoly of state over means of production or service delivery.

PAGE 43

RIGHT Speech and Expression

REASONABLE RESTRICTION S&I + Security + Friendly relations + Public order, Morality, Decency (PMD) + Contempt of Court (CoC) + Defamation + Incitement of Offence

Assemble peacefully and w/o arms

S&I + PO (Sovereignty and Public Order) SIPO

Form associations or Unions

S&I + PM (Public order and Morality) SIPM

To move freely and to settle and reside

In interest of general public and ST (not Scheduled areas)

To practice any profession

Interest of Gen Public + professional and technical standards + monopoly of Govt. establishes in certain areas

 Refer AADITYA MISHRA Lecture 13 for MAINS related Questions and Exercises. ARTICLE 20 – PROTECTION AGAINST ARBITRARY AND EXCESSIVE PUNISHMENT – ONLY CRIMINAL OFFENCES 

Provided to all accused persons (citizens, foreigners, even to a legal person).

1.

No ex-post-facto law: i.

No person shall be convicted of any offence except for violation of a law in force at the time of commission of the act; nor

ii.

No person shall be subjected to a penalty greater than that prescribed by the law in force at the time of commission of the act. Only applicable for CRIMINAL (not civil or taxation). No Retrospective amendments (amendment after passing the judgment) for criminal offence is applicable.

2.

No Double Jeopardy: No person shall be prosecuted and punished for the same offence more than once. No protection against Departmental or administrative authorities. Cannot be tried under 2 different laws (Dowry act and IPC). He can be punished only under any one law.

3.

No self-incrimination: No person accused of any offence shall be compelled to be a witness against himself covers both oral evidence and documentary evidence. It does not extend to i. Compulsory production of material objects ii. Compulsion to give thumb impression, specimen signature, blood specimens iii. Compulsory exhibition of the body. Only criminal proceeding and not to civil proceedings.



Polygraph (lie detector), Narcotic analysis, brain mapping etc. techniques are not admissible as evidence, though they may be conducted with permission of the accused.

ARTICLE 21 – PROTECTION OF LIFE AND PERSONAL LIBERTY – Procedural Right of Art. 19 

No person is deprived of his life or personal liberty except according to Procedure established by law (PEL).



Available to all individuals (both citizens and foreigners).



Only against State, if encroachment of Personal Liberty by a private individual then remedy under Art.226 or general law.



Can be deprived by a law provided the procedure prescribed by that law is reasonable, fair and just i.e., “Due process of Law (DPL)” is implicit.



Available against both arbitrary actions of executive and legislature.



Extremely wide representation by SC over the years. PAGE 44



Right to live with dignity, livelihood, clean environment, shelter, privacy, health, education, free trial, against inhuman a treatment and public hanging, right to be heard, information and reputation, Sleep (Ramdev Baba Case).



This interpretation is necessary because human beings life should not be like animals with sole focus on survival and base needs. They should be able to realize their full potential, follow their dreams, provision of equal opportunities, to make life meaningful.



Cannot be suspended during Emergency also under Art.359.

Evolution of interpretations of Art.21 Gopalan Era (1950) Case: 

Before Menaka Gandhi Case, this article guaranteed the right to life and personal liberty only against the arbitrary action of the Executive and not from the legislative action.



He argued that ‘Procedure established by Law (PEL)’ does not include ‘Law made by the Legislature’ but it is Natural Justice. Thus Preventive Detention Act, 1950 which permits detention without a trial is Unconstitutional.



Preventive detention act is violating the Right to move freely under Art. 19(1)(d).



Indian Constitutional makers actually meant ‘Due Process of Law’ as under USA Constitution.

SC Judgment: 

Word LAW in PEL – not to be read as ‘Natural Justice’ and hence PEL means LAW made by the Parliament  So Art.21 is not a Substantive Right (Basic Human Right) but just Procedural Right.



PEL is not same as DPL of USA.



Preventive Detention Act is under Art.22 and does not need to satisfy Art.14, 19 and 21.

Implications: 

Parliament can take away Life and Liberty by just making a Law.



Shows a Conservative Judiciary V. Strong Parliament.



Closer to England’s Supremacy of Parliament.

ADM Jablpur V. Shivkant Shukla Case (Habeas Corpus Case) – people are detained and are not are presenting them before Magistrate during Emergency: Case: Emergency by Indira Gandhi  Proclamation of Emergency under Art.352 imposed  Art. 359 says when Proclamation of Emergency is imposed right to move to courts is not valid. SC Judgment (SC’s Supreme Mistake during Emergency): Yes. Once Emergency is in force, Art.32 is suspended under Art.359 then we cannot look into legality of the detention and arrests made by the executive even when we have the RIGHT TO LIBERTY under Art.21. Implications: Executive have UNBRIDLED POWERS once ART.352 IS IMPOSED.

Menaka Gandhi Case (1978): A New dimension added  Influence of Emergency (society criticized so much for the Judgment in Habeas Corpus Case), hence interpretation of FR’s are more liberal and we can see the activist attitude of the Judiciary. Case: Passport Act was arbitrary and so violative of Art.14; Art.21 violation as proper procedure not prescribed; Art.19 also violated. PAGE 45

Judgment: Changed the earlier taken stand in Gopalan Case 

Art. 14, 19, 21 are not mutually exclusive, so a law prescribing procedure for depriving a person of personal liberty has to meet the requirements of Art.19 and Art.14.



Art.21 – “Personal Liberty” was given expansive interpretation. Wide amplitude of rights derived from this Art.21, some later even given distinct status of FR.



PEL was given a new interpretation then. LAW cannot just prescribe Procedure; it has to be reasonable and fair also  thus INTENT and CONTENT of the law would be considered by the Judiciary  indirectly this established the DUE PROCESS OF LAW similar to USA. (No DPL is mentioned in our Constitution).

Post Menaka Gandhi Period: Dynamic Interpretation of Art.21 New era of Judicial Revolution with Natural Justice as the great humanizing principle. Art.21 – 1.

Right to live with the Human Dignity.

2.

Right to Livelihood.

3.

Right to speedy, free trial and free legal aid.

4.

Right of Prisoners – right against solitary confinement (isolating one prisoner), hand cuffing, delayed execution, custodial death, public hanging

5.

Right to Clean Environment

6.

Right to health

7.

Right to Privacy

8.

Right to Education - Right of every child to a full development

9. Right to Die 10. Right to go abroad 11. Right to Shelter 12. Right to Social Justice and Economic empowerment 13. Protection of Cultural Heritage

ARTICLE 21A – RIGHT TO COMPULSORY EDUCATION (6 – 14 years) [86th CAA, 2002] 

Free and Compulsory education (compulsion on concerned govt. to ensure that all children of 6-14 age should complete their elementary education) to children, 6 – 14 age group, only elementary and not higher.



Earlier under DPSP, Art. 45 in part IV. Now Art. 45 reads “The State shall endeavor (try hard) to provide early childhood care and education for all children until they complete the age of 6 years”.86th CAA, 2002



Also added under Art. 51AFD: It shall be the duty of every citizen of India to provide opportunities for education to his child or ward between the ages of 6 – 14 years (Fundamental Duty). 86th CAA, 2002



Right of Children to free and compulsory education (RTE) Act, 2009 (procedure for implementation of this article): Full time elementary education of satisfactory and equitable quality in a formal school which meet essential norms and standards. It came into force from April 2010.

PAGE 46

ARTICLE 22 – PROTECTION AGAINST ARREST AND DETENTION IN CERTAIN CASES 

Inform the ground of arrest, right to be defended by legal practitioner of his choice.



Person arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours (excluding journey time) and no such person shall be detained in custody beyond the said period without the authority of a magistrate. Exception: Enemy alien and preventive detention.



Punitive Detention: Punish a person for an offence committed after trial and conviction in a court.



Preventive detention is without trial and conviction, to prevent him from committing an offence in the near future. It can be done for a period of 3 months if it is suspected-arrest of a person will be beneficial for society at large.



Grounds of detention should be communicated except if it is against the public interest, right to legal representation and to be heard.



Duration of preventive detention can be increased beyond 3 months if an advisory board consisting of judges of HCs or persons having qualifications to be appointed as such, before expiration of 3 months, feels that there is sufficient cause for such detention. Advisory Board follows the procedure established by Parliament and not of its own.



Parliament by law can also extend the period of 3 months without Advisory Board.



Parliament make specific laws like COFEPOSA [Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974], TADA [Terrorist and Disruptive Activities (Prohibition) Act, 1985 up to 1995], and POTA [Prevention of Terrorism Act, 2002] etc.



India is the only democratic country where preventive detention is an integral part of constitution.

ARTICLE 23 – PROHIBITION OF TRAFFIC IN HUMAN BEINGS AND FORCED LABOR 

Traffic in human beings and begar (compulsory work without detention) (the British Govt. officers and Zamindars used to compel the persons to carry their goods with no remuneration) and other similar forms of forced labor are prohibited, available to all individuals against state and PRIVATE PARTY ALSO.



Traffic in human beings include selling and buying/immoral traffic of men, women and children (including prostitution) like goods; devadasis; slavery.



Exception: State can impose compulsory service for public purposes by law and not by executive order. No discrimination on ground only of religion, race, caste or class or any of them (sex can be discriminated).



The Govt. passed ‘The Immoral Traffic (Prevention) Act 1956’ and ‘The Bonded Labor System (Abolition) Act 1976’.



In ‘‘Asiad Workers Case (People’s Union for Democratic Rights V. UOI, 1982)’’, the SC held that – When a person provides the labor for remuneration which is less than the minimum wage, the labor or service provided by him clearly falls within the scope of ‘forced labor’ under Art. 23 – Minimum Wages Act.



Also Inter-State migrant Labors Act, 1979 and Contract Labor (Regulation and Abolition) Act, 1970.

 Refer Aditya Mishra’s 21, 22, 23 lectures about Bonded Labor for Mains point of view::PDF

PAGE 47

ARTICLE 24 – PROHIBITION OF EMPLOYMENT OF CHILDREN IN FACTORIES ETC. 

No child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment (presently there are 83 occupations as hazardous mentioned in Factories Act, 1948).



Art. 39(f) [DPSP] states that – The State, in particular, direct its policy towards securing: Opportunities for healthy development of children [42nd CAA, 1976].



The Employment of Children Act, 1938 was among the first acts to prevent the Child Labor. The provisions of this act does not include the Construction work and projects. But in Asiad Workers Case 1982, the SC ruled that these are equal to hazardous occupations.



Mines Act, 1952



Motor Transport Workers Act, 1961



Beedi and Cigar Cond of Employment Act, 1966.



Child Labor (Prohibition and Regulation) Act, 1986: Major Law to identify, prosecute and stop the child labor.



In M.C. Mehta V. State of Tamil Nadu (1991) Case, SC directed that children should not be employed in hazardous jobs for manufacture of match boxes and fireworks.



Commissions for protection of Child Rights Act, 2005: Establishment of a National Commission and State Commissions for the protection of Child rights and children’s courts for providing speedy trial of offences against children or of violation of Child rights.



Total ban on Child Labor: approved by Union cabinet below 14 years (relate it to Art. 21A) and adolescents (14 – 18 years) shall not work in hazardous conditions.



According to 2015 Amendments of Child labor (Prohibition and Regulation) Act, 2012: 

Prohibition against employment of children: Exceptions expanded to include: (i) helping family and a family enterprise which are not hazardous occupations, after school hours or during vacations, and (ii) working in the audiovisual entertainment industry (films, TV, etc.) or sports activities



Prohibition against employing adolescents in hazardous occupations and processes



Regulating conditions of work: Provisions regulating working conditions of adolescents added. Appropriate government may make rules in this regard (E.g. number of hours for which adolescents may work, how establishments employing adolescents must maintain registers, etc.)



Rehabilitation of rescued children and adolescents: Child and Adolescent Labor Rehabilitation Fund will be constituted at the district level. Fines from employers and INR 15,000 from the appropriate government for each child/ adolescent rescued will be credited into the Fund.

ARTICLE 25 – FREEDOM OF CONSCIENCE AND FREE PROFESSION, PRACTICE AND PROPAGATION OF RELIGION. 

All persons (individual, not group) are equally entitled to freedom of conscience (judgment that assists in distinguishing right from wrong) and the right freely to profess, practice and propagate religion.



Exception: public order, morality and health and other provisions of this Part III (means FRs).



State can make any law: regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; providing for social welfare and reform like removing Untouchability.



Wearing and carrying of Kirpans (short knife) is to be included in the profession of the Sikh religion; and the Hindus include Sikhs, Buddhists and Jains.



A religious denomination according to SC: distinctive name, common organization, collection of individuals who have a system of beliefs (Doctrines) necessary for their spiritual well-being.

PAGE 48



‘Rama Krishna Mission’ and ‘Ananda Marga’ are religious denominations within the Hindu religion, while Aurobindo society is not. (because this society does not meet the above criteria of SC)

ARTICLE 26 – FREEDOM TO MANAGE RELIGIOUS AFFAIRS Subject to Public Order, Morality and Health, every religious denomination or any section thereof shall have the right 

To establish and maintain institutions for religious and charitable purposes.



To manage its own affairs in matters of religion.



To own and acquire movable and immovable property.



To administer such property in accordable with law.

ARTICLE 27 – FREEDOM AS TO PAYMENT OF TAXES FOR PROMOTION OF ANY PARTICULAR RELIGION 

No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.



This article also prohibits state from favoring one religion over the other.



A fee can be collected for providing some services and security to religious pilgrimages.

ARTICLE 28 – FREEDOM AS TO ATTENDANCE AT RELIGIOUS INSTRUCTION OR RELIGIOUS WORSHIP IN CERTAIN EDUCATIONAL INSTITUTIONS There are 4 institutions – 

Institutions wholly maintained by State (completely prohibited).

 

Institutions administered by the State but established under any endowment or trust (which requires that religious instruction shall be imparted – permitted). Institutions recognized by the State (permitted but voluntary of individual).



Institutions receiving aid from the State (permitted but voluntary of individual).

ARTICLE 29 – PROTECTION OF INTERESTS OF MINORITIES 

Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. Includes both minorities (Religious and Linguistic) as well as majority.



No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.



Right to agitate for the protection of the language (not an offence under Representation of People’s Act: RPA).

ARTICLE 30 – RIGHT TO MINORITIES TO ESTABLISH AND ADMINISTER EDUCATIONAL INSTITUTIONS. 

All minorities shall have the right to establish and administer educational institutions of their choice.



Usual law of land acquisition is not valid in this case (44th CAA, 1976).

PAGE 49



In granting aid, the State shall not discriminate against any educational institution managed by a minority (term ‘minority’ has not been defined in Constitution).



Includes right of a minority to impart education to its children in its own language.

 Refer Aditya Mishra Lectures on Secularism **ARTICLE 31 – REPEALED BY 44TH CAA 1978. Present position of Right to Property: 

Originally FR under Art. 19(1)(f) guaranteed to every citizen the right to acquire, hold and dispose of property. Art.31 guaranteed to every person (including aliens) – Right against Deprivation of his property. State can acquire on two conditions:



1.

It should be for public purpose.

2.

It should provide for payment of compensation.

Lot of controversy. Many amendments done which introduced Art. 31A (estates), 31B (part IX), 31C (DPSP) to prevent judicial review of certain laws.



So, finally 44th CAA, 1978 repealed by removing Art. 19(1)(f) and Art. 31 from Part III. Art. 300A in part XII under the heading ‘Right to property’. It provided that no person shall be deprived of his property except by authority of law.



Thus, right to property still remains a legal and a constitutional right. Not a FR as it is not a part of the Basic Structure of the Constitution. 

Can be regulated merely by an ordinary law of the parliament (CAA is not required).



Protection only against Executive action (not Legislative) – only by law, State should acquire the property.



No SC under Art. 32, only HC under Art. 226, that too discretionary.



No guaranteed right to compensation in case of acquisition or requisition of the private property by the State.



Exceptions to State acquisition: There are 2 cases where compensation is guaranteed in case of acquisition or requisition of the private property by the State are – 1.

When the State acquires the property of a minority educational institution (Art. 30)

2.

When the State acquires the land held by a person under his personal cultivation and the land is within the Statutory ceiling limit(Art. 31A)

ARTICLE 32 – RIGHT TO CONSTITUTIONAL REMEDY 

Mere declaration of FR is meaningless without providing an effective machinery for their enforcement. Hence, Art.32: right to remedies for the enforcement of the FRs of an aggrieved citizen.



Right to get the FRs protected is in itself a FR making the FRs real.



That is why Dr. B.R.Ambedkar called Art. 32 as the very heart and soul of the constitution – ‘an article without which this constitution would be a nullity’.



SC – Art. 32 is a basic feature of the constitution, hence it cannot be abridged or taken away even by way of an amendment to the Constitution.



Art. 32 contains the following 4 procedures – 1.

The right to move the SC by appropriate proceedings for the enforcement of the FRs is guaranteed. PAGE 50

2.

The SC shall the power to issue directions or orders or writs for the enforcement of any of the FRs.

3.

Parliament can empower any other court except SC and HCs to issue directions, orders and writs of all kinds.

4.

The right to move the SC shall not be suspended except by the President during a National Emergency under Art. 359(not under Art. 352).



SC has been vested with the ‘original’ (direct approach with or without appeal in HC) and ‘wide’ (not only orders, directions but also writs) power for to provide a guaranteed, effective, expeditious (speedy), inexpensive, and summary remedy for the protection of FRs.



Only FRs can be enforced under Art. 32 and not any other right like non-fundamental constitutional rights, statutory rights, customary rights etc.



Jurisdiction of the SC is original but not exclusive (HC can also). It is concurrent with the jurisdiction of the HC under Art. 226 (Direct approach to HC or SC).Where relief through HC is available under Art. 226, the aggrieved party should first move the HC.



SC (Art.32) can only issue writs against State where as HC (Art.226) can issue writs to Private individual also.

WRITS (5): 

SC (Art. 32) and the HCs (Art. 226) can issue the writs of Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo-warranto.



Parliament (Art. 32) can empower any other court to issue these writs (till now it’s not done).



Power with respect to Writ jurisdiction [Art. 32 V. Art. 226]. 1.

Limited to FRs for SC (narrower), but both FRs and legal rights for HCs.

2.

For SC territory is wider as includes entire India.

3.

HC may refuse to issue writs as 226 is not a FR, but Art. 32 being a FR itself, SC cannot (Hence, SC is ultimate defender and guarantor of FRs).



Habeas Corpus (detained): 1.

Order issued by the court to a person who has detained other person to produce the body of the latter before it. Examines the cause and legality of detention. Set free if detention is found to be illegal. Protection of individual liberty against arbitrary detention.

2.

Both against State and Private Citizen.

3.

Principle of Locus Standi (A person whose right is infringed must file a petition by himself) does not apply (cannot! Because, how a person who is detained can file a petition?).

4.

Writ is not issued (a) lawful, (b) contempt of a legislature or a court, (c) detention is by a competent court, (d) outside the jurisdiction of court.

5. 

It is applicable to Preventive Detention also.

Mandamus (mandatory duty): ‘We command’. It is a command issued by the court to a public official asking him to perform his official duties (mandatory) – Legal as well as Constitutional Duties that he has failed or refused to perform. It can be issued against any public official, public body, corporation, inferior court, tribunal or government 1.

Filed only by the aggrieved person (Locus Standi).

2.

The writ of Mandamus cannot be issued – a) Against a private individual or a body. PAGE 51

b) To enforce departmental instruction that does not possess statutory force. c) When duty is discretionary and not mandatory d) To enforce a contractual obligation e) Against the President, Governor, Chief Justice of the HC in judicial capacity, Parliament and State Legislators and also Companies under Companies Act, 1956. 

Prohibition (before judgment): ‘To forbid’. It is issued by a higher court to a lower court or tribunal from exercising jurisdiction which they do not possess at all. 

Applicable only when the quasi-judicial bodies/ tribunals are acting without/beyond/in violation of Natural Justice/against FRs/under law which is unconstitutional jurisdiction.



Cannot be issued to public officer not having judicial function; for error of law



The writ of Prohibition can be issued only against judicial and quasi-judicial authorities and not against administrative authorities, legislative bodies.



Certiorari (prior or after): ‘to be certified/informed’. Issued by a higher to a lower court or tribunal to transfer a case or to quash (cancel) the order. It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law (Prohibition cannot be issued on the grounds of error of law). Thus, unlike prohibition, which is only preventive (prior to the judgment), certiorari is both preventive as well as curative (prior as well as after the judgment). 

Till recently, the writ of certiorari could be issued against judicial and quasi-judicial authorities and now administrative authorities also.



Like prohibition, Certiorari is also not available against legislative bodies and private individuals or bodies.



Quo-warranto (authority): ‘by what authority or warrant’. It is issued by the court to enquire into the legality of claim of a person to a public office, preventing illegal usurpation of public office by a person. 

This writ can be issued only in case of a substantive public office of a permanent character created by a statute or by the Constitution. It cannot be issued in cases of ministerial office or private office.

ARTICLE 33 – ARMED FORCES AND FRS 

Art. 33 empowers the parliament to restrict or abrogate the FRs of the members of the Armed forces, paramilitary forces, police forces, intelligence agencies etc. (include employees who are non-combatants) done for proper discharge of their duties and the maintenance of law.



Law – only parliament (Art. 19), cannot be challenged on violation of any of the FRs.



A parliamentary law enacted under Art. 33 can also exclude the Court Martials (Tribunals established under the military law) from the “Writ Jurisdiction” of the SC and the HC, so far as the enforcement of FRs is concerned.



Writ Jurisdiction (WJ): To ensure ‘rule of law’ in all governmental activities, the JUDICIAL REVIEW of govt. actions is called Writ Jurisdiction. There is difference between the Writ Jurisdiction of SC and HC as follows – 1.

The WJ of SC is mentioned under Art. 32, while the WJ of HC in 226.

2.

The HCs have wider powers as compared to SC in issuing writs.

3.

The SC can issue writ only in case of violation of FR in part III, while the HC can not only issue writ only in case of violation of FR but also in case of violation of any legal rights of citizens.

4.

Art. 32 imposes a duty to issue the writs on SC, whereas no such duty is imposed on HC by Art. 226.

5.

The jurisdiction of the SC extends all over the country, whereas that of the HC only to the territorial confines of the particular State. PAGE 52

ARTICLE 34 – MARTIAL LAW 

Restrictions of FRs while martial law is in force in any area within the territory of India.



Empowers the Parliament to indemnify (securing someone from the legal responsibility) any govt. servant or others for any act done by him in connection with the maintenance or restoration of order in any area where martial law was in force.



Act of Indemnity made by the Parliament beyond Judicial Review only on violation of FRs.



Martial Law (Military Rule): not defined in Constitution.



Civil Administration is run by the military authorities according to their own rules and regulations framed outside the Ordinary Law, implying suspension of ordinary law and govt. by military tribunals.



Imposed under the external circumstances like war, invasions, insurrection, rebellion, riot or any violent resistance to law to repel force by force for maintain or restoring order in the society.



Abnormal powers including imposing restrictions and regulations on the rights of the civilians, can punish the civilians and even condemn to death.



The SC held that the declaration of Martial law ipso facto (by that very fact) result in the suspension of the writ Habeas Corpus.

Difference between Martial Law (ML) and National Emergency (NE): Martial Law Affects only FRs.

National Emergency Much broader in scope affecting Centre-State relations, FRs, Legislative powers, revenue distribution and may extend tenure of Parliament.

Suspends only ordinary law, Courts and Govt.

All these continues.

Imposed to restore back the law and order due to any

Imposed only due to 3 reasons: War, External aggression or

reason.

Armed rebellion (Internal aggression)

Only in some area not the entire nation.

Some or entire nation.

Not specifically mentioned so implicit.

Explicitly mentioned [Art. 352]

ARTICLE 35 – LAWS FOR EFFECTING FRS (ONLY PARLIAMENT POWERS) Power to make laws, to give effect to certain specified FRs shall vest only in the Parliament and not in the State Legislatures, even if under State list to ensure uniformity throughout the India. 

Prescribing residence as a condition under Art. 16.



Empowering courts other than SC and the HCs to issue directions, orders and writs of all kinds for the enforcement of FRs (Art. 32).



Restricting or abrogating the application of FRs to members of Armed forces, Police forces etc. (Art. 33)



Indemnifying any govt. servant or any other person for any act done during the operation of martial law in any area (Art. 34).



To make laws

for prescribing punishment for those acts that are declared to be offences under the FRs. These

include the following – Untouchability (Art.17) and Traffic in human beings and forced labor (Art.23) 

Law before Independence will continue as such.

PAGE 53

RIGHTS OUTSIDE PART III 

Constitutional/ Legal/ Non-fundamental rights (Not Art. 32 but Art. 226 either ordinary procedure of appeal or directly for writ jurisdiction).



No tax shall be levied or collected except by authority of law (Art. 265).



No person shall be deprived of his property save by authority of law (Art. 300A).



Trade, Commerce and intercourse throughout the territory of India shall be free (Art. 301).



Adult Suffrage (Art. 326) – Right to Vote.

CRITICISM 

Excessive limitations.



Mainly political rights (Socio-economic rights under DPSP are non-enforceable).



Ambiguity in language.



Amendable hence no permanency.



Presence of preventive detention.



Can be suspended during emergency.

SIGNIFICANCE 

Back bone, heart, soul, conscience of constitution, protection of individual liberty.



Establishment of rule of law.



Secular nature, protection to all religions and minorities.



Check and balance over arbitrary action of Executive and Legislature.



Respect dignity of individual, and help in their realization of full potential by encouraging their participation in nation building process.

REMEMBER 

LAW(14) removes all DOUbT(15, 16, 17, _, 18).



19 – SAAM RESIDES in Poland. (Or) Call (Speech) students to ASSEMBLE, from ASSOCIATION then MOVEMENT towards RESIDENCE of Professor.



20, 21, 21A, 22: Conviction, Life and Liberty, Education, Arrest – CLEAr



LAW removes DOUbT, gives 6 Freedoms and CLEAr protection against govt. (Art. 14- 22).



(23-24): Exploitation of Women and Children still happens.



(25-28): 25 – CONSCIENCE or CON 26 – MANAGEMENT or MAN 27 – TAX 28 – ATTENDANCE CONMAN evades TAX ATTENDANCE. (Conman: who cheats or tricks)



(14 – 28): LAW removes DOUbT, gives 6 Freedoms and CLEAr protection against govt. But EXPLOITATION AGAINST WOMEN AND CHILDREN STILL HAPPENS and CONMAN uses it to evade TAX ATTENDANCE.

PAGE 54

DIRECTIVE PRINCIPLES OF STATE POLICY [Art. 36 – 51] [Part IV] 

Adopted from Irish Constitution of 1937 (Spanish Constitution).



The State should keep DPSPs in mind while framing laws and enacting policies, even though they are nonjusticiable and non-enforceable.



Art. 36, the term ‘State’ in part IV has the same meaning as in part III dealing with FRs (Legislative and executive branches of the Central and State govt., all local authorities, other public authorities).



Similar to ‘Instrument of Instructions’ (Govt. of India Act 1935) according to Dr. B.R.Ambedkar.



Most important DPSPs: Art. 39(b), (c).

ARTICLE 37 

The DPSPs are not justiciable, not legally enforceable in the court of law.



Set the agenda for economic, social and political program for a modern democratic state.



Objective is to come close to achieving ideals of justice, liberty, equality and fraternity as enshrined in the Preamble.



Concept of a ‘Welfare State’ not a ‘Police State’.



In short, they are positive obligation of the State where the State has a duty to implement the DPSPs by incorporating them in policies formulated laws enacted by the legislature.

Why DPSP are non-justiciable? Founding Fathers of nation, with all their wisdom, divided rights into 2 categories: FR which are Justiciable and DPSP which are non-justiciable because: 

No enough financial resources.



Vast diversity and backwardness will deter their implementation.



Newly Independent India had too many basic things to worry about. So it should be free to decide the order, the time, the place and the mode of implementing DPSP.

Why non-justiciable yet? 

No compulsion for implementation from judiciary. BUT Political compulsion from political electorate. Hence, they are fundamental in the governance of the country.



Play a crucial role in conclusion by courts whether a law is constitutionally valid or not.



Present situation: The SC can overrule Art. 14 (Equality before law) and Art. 19 (6 rights) to give effect to DPSP.



It shall be the duty of the State to apply these DPSP while formulating policies or making laws for the governance of the State.



Unanimous voice of the Constituent Assembly: “These principles are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws”.

Evolution: 

Kautilya – Responsibility of the King to the people.



Civil, Economic and Social Rights.



British period – Economic exploitation.



Deprived of Social Rights and Political freedom.



Hence we gave ourselves Social justice (Socio-economic rights). PAGE 55



Epitomize (summarize) the ideals of the people of India.



Evolved along the emergence of “constitutional form” of govt.



Constitutionalism –



1.

Constitutionalism is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law".

2.

Political organizations are constitutional to the extent that they "contain institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority".

Welfare State – A welfare state is one in which the state plays a key role in the protection and promotion of the economic and social well-being of its citizens. A welfare state is based on the principles of equality of opportunity, equitable distribution of wealth and public responsibility for those unable to avail themselves of the minimal provisions for a good life.



Unique blend of principles of Socialism, Gandhism, western liberalism and the ideals of Freedom Struggle.



Seek to promote a comprehensive, social, economic and administration structure for a modern democratic state.

CONTRAST BETWEEN FRS AND DPSPS Fundamental Rights

DPSP

Negative in nature, prohibit State to do something.

Positive in nature, require State to do something.

Justiciable i.e., legally enforceable, if they are violated.

Non-justiciable if they are violated.

Objective: Establishing Political Democracy.

Objective: Establishing Socio-economic democracy.

Legal Sanctions, there is no need of legislation for implementation.

Moral and Political sanctions, there is a need of legislation for implementation.

Individual based.

Community based.

Any law in violation of FR, SC is bound to declare it as null and void.

No such binding.

Relation between FRs and DPSPs: 

DPSP + FR = Soul, Philosophy, Heart, Corner stone, Conscience of Constitution.



Purpose: Fix certain goals (Socio-economic) by bringing non-violent social revolution.



Art. 37: State to incorporate DPSP in the policies formulated by the executive and laws enacted by legislature.



If such a law is passed to give effect to one or more DPSP, violates one or more FRs then…

WHAT IS THE RELATION BETWEEN FR AND DPSP? State of Madras V. Chamapakam Dorairajan, 1951  SC held that DPSP are SUBORDINATE to the FR. 

DPSP shall conform and RUN SUBSIDARY to FR.



If there is any conflict between them, FR should prevail over DPSP.

PAGE 56



On the basis of such a narrow interpretation, many of the social legislation, including land reform acts were held to be unconstitutional by SC. Now, FR >> DPSP.

The Kerala Education Bill, 1957 [Art. 143(1)], 1957  However, after realizing the growing importance of DPSP the SC gave a wider interpretation to provision of Constitution to reconcile the FR & DPSP as far as possible. 

In Kerala Education Bill 1957 case, the SC held that: 1.

There is no inherent conflict between the FR & the DPSP.

2.

They together constitute an integrated scheme of establishing political, social and economic democracy in country.

3. 

Thus they are supplementary to each other and must be harmoniously constructed.

Similar theory also in the Mumbai Kamgar Sabha V. Abdulbhai Faizullabhai Ors. (AIR 1976 SC 1455) where two judicial choices are available, the construction in conformity with the social philosophy of part IV has preference.



DPSP are stairs to climb to become socialistic state where everyone has some basic rights and FR are means to reach the top.



The SC also propounded the THEORY OF HARMONISATION.

Theory of Harmonization  If a law passed by a State giving effect to one or more DPSP capable of giving one or more interpretations. 1.

If one of the interpretation leads to the DPSP being in harmony with FR and the other interpretation lead to a conflict between them.

2.

Court shall prefer the first interpretation and validate the law.



This is the mandate of constitution, not only to executive and legislative but also to judiciary.



However if such a law is capable of only one interpretation that leads to a conflict between DPSP and FR, then the court shall have no choice but to implement the FR in reference to DPSP.



On basis if above interpretation, the SC held the Bank Nationalization Act and the Privy purses (Abolition) Act 1971 as unconstitutional (valid after Kesavananda Bharati Case, 1973). Now, FR > DPSP

Golaknath Case, 1967  SC ruled that the Parliament cannot take away or abridge any of the FRs, which are sacrosanct in nature. 

FRs cannot be amended for the implementation of DPSPs. Now, FR >>>> DPSP

24th CAA, 1971  Passed to reverse the Golaknath case decision. Parliament wants to give effect to Preamble and DPSP, but SC took it all away. 

Declared that Parliament has the power to abridge or take away any of the FRs by enacting CAAs.



Art. 13 is not applicable to any amendment made under Art. 368.



Art. 368 includes both amendment of the process and procedure.

PAGE 57

25th CAA, 1971 The Parliament in order to overcome the obstruction of 1967 in enactment of social legislation passed the 25 th CAA, 1971. 

Decreased the scope of right to property to a large extent as it permitted the acquisition of private property by the govt. for public use, on the payment of compensation (decided by the parliament, not by courts).



Introduced Art. 31C: if the State enacted any law giving effect to two article 39(b) & 39(c) and in the process if the law violates the FR given under Art. 14, 19 or 31, the law shall not be declared as unconstitutional merely on this ground.



Any declaration made by the State that the law is to give effect to Art. 39(b) and (c) cannot be challenged in court.



V.G.Ramachandran described 24th and 25th CAA as –



1.

Not merely ‘tinkering’ with the Constitution.

2.

But it is a veritable slaughter of the Constitution as judicial review is taken away.

3.

25th CAA “smacks of totalitarianism and hurry to achieve socialism instantly overnight”.

Thus for first time, 2 DPSP given under 39(b) and (c) were given precedence over 3 FR given under 14, 19, 31. Now, FR < DPSP

Kesavanda Bharati V. Kerala State, 24 April 1973  There are certain principles within the framework of Indian Constitution which are inviolable and hence cannot be amended by the Parliament. These principles are commonly termed as “Basic Structure”. 

Parliament has wide powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the Constitution.



Section 2(a) and 2(b), and the first part of Section 3 of the 25th CAA were upheld by the SC as valid.



However, the second part of Section 3, which prevented judicial review of any law that gives effect to DPSP, was declared unconstitutional.



Landmark decision of SC (wafer thin margin: 7 judges in favor and 6 judges were opposed) that outlined the basic structure doctrine of the Constitution.



On basis of 25th CAA the Bank Nationalization Act and Privy Purses (Abolition) Act were held to be constitutionally valid by the SC when they were re-enacted.



This judgment has gained wide spread acceptance and legitimacy due to subsequent cases and judgments.

Basic Structure Doctrine: Preamble Objectives – 

Secularism, Rule of Law



Sovereign, Democratic and Republican structure



Unity and Integrity of Nation



Freedom and dignity of the individual

Constitution: Supremacy, Art.32 and 226, ‘essence’ of others FRs, DPSP (concept of Social and Economic i.e., Justice, to build a welfare state), balance between part III and part IV. Judiciary: 

Judicial review, limitations upon the amending power conferred by Art. 368



Independence of the Judiciary



The principles of equality mainly the quintessence of equal justice



Effective access to justice



Powers of SC under Art.32, 136, 141, 142 PAGE 58

Miscellaneous: 

The principle of separation of powers (LEJ)



Federalism



The parliamentary system of govt.



The principle of free and fair elections



Legislation seeking to nullify the awards made in exercise of the judicial power of the State by arbitration tribunals constituted under an Act.

42nd CAA, 1976 repelled Art. 31(c)  Enacted during Emergency 25 June 1971 to 21 March 1977 – also known as Mini Constitution. 

If the State enacted any law giving effect to all or any of the DPSP and if in the process, the law violated FRs given Art. 14, 19 and 31 the law shall not be declared as void and unconstitutional merely on this basis.



Thus the 42nd CAA attempted to give precedence for all the DPSP over 3 FRs under 14, 19 and 31. Now, FR <<< DPSP



After new govt. came into the force, the 44thCAA 1978 has removed Art. 31 (Right to property) from the list of FRS and added it as Legal Right under Art.300A.



The SC in Minerva mills V. UOI, 1980 case held the changes introduced by the 42nd CAA (Section 4&55) in A 31(c) as unconstitutional and void on the ground that is distributed balance between part III and part IV and that balance between them is part of Basic Structure of Constitution.



No absolute power of part III & IV over each other.



Goals set out by the DPSP have to be achieved without the abrogation of the means provided by FRs.



Powers of parliament to amend constitution is limited and it cannot amend constitution to make this power unlimited. Now present situation: FR > DPSP Exception: 39(b),(c) > 14, 19

Sanctions behind DPSP: 

Constitution itself (part IV)



Public opinion



Utility of DPSP



Constitutional amendments



Laws made by the govt.



Executive Orders

CLASSIFICATION 

There is no official classification.



But it is divided into 3 categories for academics: i.

Socialistic

ii.

Gandhian – Panchayat, Cottage Industries, Co-operative societies, Weaker section, Alcohol, Cattle (6 key words. Remember Important)

iii.

Liberal – intellectual

PAGE 59

Socialist Principles  Art. 38: Social, Economic and Political, Social Order, Welfare, minimum inequalities in income. 

Art. 39: To secure – a) The right to adequate means of livelihood of all citizens; b) The equitable distribution of material resources of the community for the common good; c) Prevention of concentration of wealth and means of production; d) Equal pay for equal work for men and women; e) Preservation of the health and strength of workers and children against forcible abuse; f)

Opportunities for healthy development of children [42nd CAA].



Art. 39A: Free legal aid to the poor (39(a) not same as 39A).



Art. 41: RTE (Education), RTW (Work), RTPA (Public assistance).



Art. 42: Human Conditions for work and maternity leave.



Art. 43: Living wage and decent standard of life.



Art. 43A: Secure the participation of workers in the management of industries.



Art. 47: Nutrition and Public Health.

Gandhian DPSP  Art. 40: empowerment of village Panchayat. 

Art. 43: cottage industry in rural areas.



Art. 43B [97th CAA 2011]: To promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies.



Art. 46: promotion of SCs, STs and other weaker sections.



Art. 47: Prohibition of intoxicating drugs and alcohol.



Art. 48: prohibit cows, mulch and drought cattle slaughter.

Liberal – Intellectual principles  Art. 44: Uniform Civil Code. 

Art. 45: Early childhood care and education (below 6 years) [but 6 – 14 years it is compulsory: FR 21A]



Art. 48: Modernize agriculture and animal husbandry



Art. 48A: to protect and improve the environment and to safeguard forests and wild life (42 nd CAA)



Art. 49: Protect the monuments of national importance



Art. 50: Separate the judiciary from executive (CrPC 1973)



Art. 51: International Peace and Security

International Principles 

Art. 51



Promotion of International peace (this is one of the 5 conditions, where parliament can legislate on State list)



Just and Honorable relations with the States.



International law and treaty obligations.



Dispute settlements through arbitration.

PAGE 60

DPSPS OUTSIDE PART IV (Non-justiciable, Non-enforceable in court of law):   

Art. 350A: Instruction in mother tongue. Art. 351: promotion and development of Hindi Language. Art. 335: claims of SCs and STs to services.

DPSP AFTER AMENDMENTS:     

An amendment requires the approval of two-thirds of the members present and voting. 42nd CAA 1976: Healthy development of children [Art. 39(f)]; Free legal aid [Art. 39A]; improve worker participation in management of industries [Art. 43A]; environment [Art. 48A]. 44th CAA 1978: minimize inequalities in jobs etc. [Art. 38(2)] 86th CAA 2002: early child care (< 6 years) [Art. 45] 97th CAA 2011: Co-operative societies [Art. 43B]

CRITICISM 

   

These are non-justiciable, pious superfluities and aspirations, a cheque on a bank (payable only when the resources of the bank permit), New Year revolution (i.e., we can break it on Jan 2nd, Jan 1st over tempo), a veritable dustbin of sentiments, moral principles. Some are saying: not practicable, foreign in nature and against the principle of State sovereignty. Illogically arranged: Scientific (like protection of environment) with religious and sentimental; Ultra important [39(b), (c)] with insignificant. No mention of methods to implement, conservative: Out dated. Constitutional conflict: President& PM, Governor& CM, Centre& State.

IMPORTANCE                

These principles are directives for the States, lay down the foundation of economic democracy and establish welfare State. Fundamental in governance of the country and supplement FRs. Guiding principles of courts. They bring Stability and continuity in State policies. Educative values of DPSP. If the govt. of the day fails to implement the DPSP, then it is answerable to people in next general election. No legal sanction but political sanction, Positive obligation for State. Not enforceable in court of law but enforceable in court of people. Not been given legal enforceability not because they are inferior to any part of the constitution, but they need resources for their execution. Facilitate stability and continuity in nation’s policies. Creates background for both LEJ functioning and enjoyment of FRs by citizens as “Political democracy don’t hold any meaning without economic democracy”. Act as a lighthouse constantly reminding the govt. of the day that is responsible of taking the country towards welfare. Testing grounds through which, performance of govt. is judged. Help in deciding the legal validity of some of the laws incorporated by the State. Beacon lights to the courts. E.g.: One of the most important rights i.e., the citizens can enjoy is the freedom from hunger, which can be extended to citizens only through implementation of DPSP. So unless DPSP are properly implemented the citizens cannot fully enjoy their FR. Amplify and reinforces the Preamble.

PAGE 61

IMPLEMENTATION OF DPSPS THROUGH…          

Land reform Acts, Banking Policy, Fixation of minimum wages for employees, welfare schemes for the weaker sections, Nuclear disarmament, Panchayat Raj. The Equal Remuneration Act, 1976. Consumer Protection Act of 1986. The 86th CA of 2002 inserted new Art. 21A. Environmental Protection Act: 42nd CAA MGNREGS Cow slaughter prohibition act Janani SurakshaYojana (JSY), Janani Sishu Suraksha Karyakram (JSSK) CrPC, 1973: Separation of Judiciary and Executive in Public life. Old age pension Schemes.

PAGE 62

FUNDAMENTAL DUTIES [Art. 51A] [Part IVA] INTRODUCTION 

Moral obligations of all citizens to help to promote a spirit of patriotism and to uphold the unity of India.



Rights and duties of the citizens are correlative and inseparable.



Two sides of the same coin.



Even if not mentioned not explicitly, they are presumed and implicit.



Not a part of original Constitution.



But by 42nd CAA, 1976 (Mini- constitution), it was made an indispensable part of the constitution.



Not removed by 43rd or 44th CAA (31 to 300A.FR to legal right), 1978. So overall inter-party consensus.



Increased to 11 by 86th CAA, 2002.



Inspired from USSR Constitution.



Citizens’ exercise of their FRs and Freedoms was inseparable from the performance of their duties and obligations.



Furthering national interest and integration of composite culture.



Most democracies like USA, France don’t mention them explicitly.



Japan is one of the democratic nations which mentions it explicitly.



FDs reference also in a) Universal declaration of Human rights. b) International convenient on Civil and Political Rights.

Difference between FRs and FDs Fundamental Rights

Fundamental Duties

Both Citizens and Aliens.

Only citizens.

Justiciable in court of law, directly enforceable.

Non-justiciable.

Govt.’s obligation to citizens in a democracy.

Our obligation to govt.

No need of making a law for its enforceability. (32: move SC

Law needs to be made by parliament for its enforceability.

and 226: move HC)

SWARAN SINGH COMMITTEE 

Made recommendations on FDs [8 but eventually 10(42 nd CAA), now 11(86th CAA)].



Need felt during the operation of the Internal Emergency (1975 – 1977).



42nd CAA, 1976: Part IVA – Art. 51A.



Citizens should be aware about FDs while they enjoy FRs. [Not accepted recommendation].



If citizens don’t follow/violate these FDs, penalty and punishment should be imposed by Parliament.



No Judicial Review of such law giving force to FD.



Make duty to pay taxes a FD.

PAGE 63

OBSERVATIONS 

Moral and civic duties.



Non-enforceable and non-justiciable. But various laws make sure they are implemented.



Integral values being part of the Indian tradition, mythology, religions and practices.



Codification of tasks integral to the Indian way of life.



FRs – Citizens and aliens. FDs – only Citizens.

CRITICISM 

Not exhaustive: casting vote, paying taxes, limiting population growth etc. are not included as FD.



Vague, ambiguous and difficult to be comprehended by layman. “Strive toward excellence”, “Composite culture”, “Spirit of common brotherhood”.



Like DPSP, they are superfluous, code of moral precepts as they are non-justiciable in character.



What’s the need to add them, why as an appendage to part IV, rather keep them in Part III?

SIGNIFICANC1E 

Though not enforceable, yet held by the SC to be obligatory for all citizens.



Gentle but swift reminder that citizens have duties towards nation, society and their fellow brethren.



Strong deterrence to anti-national and anti-social activities like disrespecting the national flag, destroying public property, restoring to violence etc.



Source of inspiration for the citizens and promote a sense of discipline, honor, loyalty and commitment among them.



Citizens are not passive observers but active participants in the realization of true potential of this great nation.



Helps courts in determining the constitutional validity of a law. They help SC in validating various laws which otherwise would have been unconstitutional, null and void with respect to Art. 14 and Art. 19.

LAWS GIVING EFFECT TO FD 

Right to Education, 2009.



Prevention of insults to National Honor Act, 1971.



National Security Act, 1980.



Various CrPC amendments for having women centric laws.



Environment protection law, wildlife protection, air pollution, water pollution.

FUNDAMENTAL DUTIES: LIST (11) 1.

To abide by the Constitution and respects its ideals and institutions, the National flag and National Anthem.

2.

To cherish and follow the noble ideals which inspired our national struggle for freedom.

3.

To uphold and protect the Sovereignty, Unity and Integrity of India.

4.

To defend the country and render national service when called upon to do so.

5.

To promote harmony and the spirit of common brotherhood amongst all the people of India transcending, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.

6.

To value and preserve the rich heritage of our composite culture.

7.

To protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures.

PAGE 64

8.

To develop the scientific temper, humanism and the spirit of inquiry and reform.

9.

To safeguard public property and to abjure violence.

10. To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement. 11. Parents or guardians – opportunities for education (6 – 14 years).

PAGE 65

CONSTITUTIONAL AMENDMENTS [Part XX] [Art. 368] 

Amendment (Change): formal or official change made to any legal document like law, contract, and constitution.



Add, remove or update parts.



Flexibility, adjusting to changing conditions and needs.



Britain: Extremely easy, Un-codified or Unwritten Constitution.



USA: Extremely hard.



India: Neither rigid nor flexible (mixture or synthesis).

AMENDMENTS IN USA 

USA: Extremely hard to amend the Constitution.



11500 proposals till date in last 226 years.



Only 27 were passed (4 still open, 2 failed after passed by Congress (like parliament)); out of which 10 are “Bill of Rights”. Bill of Rights are functional by 15 December, 1791, includes freedom of religion, press, speech, peaceably assembly; right to keep and bear arms; no unreasonable search, need of search warrant; Due process, no selfincrimination or double-jeopardy; right to trial by jury; prohibits excessive punishment; protects rights outside constitution; Federalism.





Proposed amendment – sent to the States for ratification by either – procedure to start: 1.

The United States Congress, (2/3rd majority in both the Senate and the House of Representatives); OR

2.

A nation convention, called by Congress, when 2/3rd State Legislatures apply (presently 34 required).

To become part of the Constitution, an adopted amendment must be ratified by either (as determined by Congress): 1.

Legislatures of three-fourths (presently 38) of the States, within the stipulated time period, if any; OR

2.

State ratifying Conventions in three-fourths (38) of the States, within the stipulated time period

AMENDMENTS IN INDIA 

99/121 in 65 years.



3 types of amendments: Simple, Special and Special + half of States ratification.



Simple Majority: Like ordinary legislatures (50% of present + 1). Not under purview of Art. 368. These do not get the number like 42nd CAA or something like that. [Quorum: minimum number of members should be present in LS or RS i.e. 10% of the total number of people.

LS – 55 (simple majority: 28 members should vote to amend

Constitution). RS – 25 (simple majority: 13)] E.g. Art.4: Laws under Art.2 (admission or establishment of new States), Art.3 (relating to formation of new States and alternation of areas, boundaries or names of existing States) leading to First and Fourth Schedules be amended and supplemental, incidental and consequential matters, shall not be deemed to be amendments of the constitution for the purpose of Art.368. The following can be amended by Simple majority and these are not covered under Art. 368 – 1.

Legislative Council (Abolition or Creation): 7/29 [Andhra Pradesh, Bihar, J&K, Karnataka, Maharashtra, Telangana and Uttar Pradesh; Assam and Rajasthan cleared by Parliament.]

2.

Schedules 2, 5, 6 and 1, 4.

PAGE 66

3.

Parliamentary provisions: Salaries and allowances of MPs, Rules of Procedure, privileges, its members and its committees, use of English language.

4.

Elections to Parliament and State Legislatures, Delimitation of Constituencies, Union Territories.

5.

Number of Puisne Judges (Regular member of court other than Chief Justice or Ex-officio member of the Court) in the SC, conferment of more jurisdiction on the SC.

6.

Use of official language, citizenship: acquisition and termination.

Bills that are passed by Simple Majority: 7.

No-confidence Motion

8.

Censure (strong disapproval) Motion: Opposition against any specific policy of govt. or against minister or council of ministers. It can be moved in the lower house.

9.

Adjournment Motion: It is allowed only in LS on recent matter of urgent public importance having serious consequences. It should contain at least 50 members.

10. A motion under Article 352 in Lok Sabha (for disapproval of the continuance of the National Emergency) 11. The removal of the Vice-President in the Lok Sabha 12. Money Bill 13. Financial Bill and Ordinary bill 14. State legislature can pass the constitutional Amendment Bill (after being passed under Art.368 by Parliament) with simply majority. 

Special Majority: Everything which are not covered by other two categories. E.g. FR and DPSP. 

The supporters of the amendment bill must also constitute 2/3 of those who are actually taking part in voting, AND



those voting in favor of the amendment bill should constitute at least half of the total strength of that house (Lok Sabha/Rajya Sabha)





i.e. 2/3(Voting) > Half (545)

Special Majority + 15 States: Federal provisions. No time limit + non-action means nothing if 15 ratifying. 1.

Process of election of the President. (both by MPs and MLAs – federal feature)

2.

Higher courts (HC and SC).

3.

7th schedule lists.

4.

State representation in Parliament.

5.

Balance between executive and legislative power of the Union and the States.

6.

Art.368 itself: power of parliament to amend the Constitution and its procedure.

ART.368 IN PART XX 

Powers of parliament to amend the Constitution and its procedure.



Parliament in its constituent power can amend (addition, variation or repeal) any provision of the Constitution by following proper procedure.



No basic structure amendment obviously. So, Doctrine of Basic Structure + Art.368, these two keeps the Parliament in check, as far as its amending powers are concerned.

PAGE 67

Procedure under Art.368: 

Introduction in Parliament only (LS or RS), by any MP (both Ministers and Private members), not in the State legislatures. No prior permission of President.



Special Majority in each house: (50% + 1) of total number of members of that house and 2/3rd or more of present and voting. 1.

Maximum possible votes needed in LS: Theoretically 368 [552 (530 from States + 20 UT + 2 AI) is the maximum strength] and in present practice it is 2/3rd of 545 = 364.

2.

Minimum possible votes needed in LS: 55 members form the quorum, but still you need at least 273 votes [1/2 x 545 = 272.5 + 1 = 273.5] i.e. 273 to 364 vote ranges.



3.

Maximum possible votes needed in RS : 167 (if 250), 164 (245 = 233+12)

4.

Minimum possible votes needed in RS: 25 is the quorum but still 123 is needed.

Separate passing is must, if dead end or road block, NO Joint sitting is allowed. Till now only 3 joint sittings – Dowry Prohibition Act, 1961; Banking Service Commission Repeal Bill, 1978; Prevention of Terrorism Act, 2002. If an ordinary bill has been rejected by any house of the parliament and if more than six months have elapsed, the President may summon a joint session for purpose of passing the bill. The bill is passed by a simple majority of a joint sitting. Since the lower house has more than twice the members of the upper house, a group commanding a majority in the lower house of the Government of India can pass such a bill even if it was previously rejected by the upper house.



If federal provisions are being amended – Half States must ratify with simple majority in their own legislature.



Once both houses passes (+15 States if needed) presented to President.



President has to compulsory give his assent (24th CAA, 1971 made it obligatory), no withholding for pocket veto or returning is allowed. Once president signs, it becomes an act and Constitution stands amended.

CRITICISM 

No special body present for amendment like Constitutional Convention or National Convention (as in USA) or Constitutional Assembly.



Introduction only in Parliament not in State except for the creation of Legislative Council (Parliament may sit, approve or disapprove).



Majority of CAA, no need of States that too 15/29. In USA, every CAA needs States (38/50).



No joint sitting.



Except the number of votes needed are slightly more, similar like ordinary legislation.



Yet process is simple and strikes the right balance between rigid and flexible.



Nehru said that as solid and permanent it should be, but not more, as it is a living, vital, vibrant and organic document.



Dr. B.R.Ambedkar, ‘‘the assembly has not only refrained from putting a seal of finality and infallibility upon this constitution by denying the people the right to amend the Constitution as in Canada or by making the amendment of the Constitution subject to the fulfillment of extraordinary terms and conditions as in USA or Australia, but has provided for a facile procedure for amending’’.



Granville Austin, ‘‘the amending process has proven itself one of the most ably conceived aspects of the Constitution. Although it appears complicated, it is merely diverse’’.



KC Wheare, “this variety in the amending process is wise but rarely found”.

PAGE 68

EMERGENCY PROVISIONS [Part XVIII] [Art. 352 – Art. 360] CHARACTERISTICS 

Taken from the Constitution of the Weimar Republic of Germany.



To deal with the extra-ordinary situation.



To protect democracy, constitution, SUI (Sovereignty, Unity, Integrity), Security of India.



Unique feature: Dr. B R Ambedkar – “only Indian constitution can function with dual roles.”



It can be federal in normal times, unitary in emergency.



No amendment is necessary for this purpose.



Others like US – tight-mould of federalism, can never be unitary even if they wanted to.

There are 3 types of Emergency: 

National Emergency: due to war, external aggression or armed rebellion (Art. 352)



State Emergency (President Rule): due to failure of constitutional machinery in States (Art.356)



Financial Emergency: Art.360

NATIONAL EMERGENCY 

Term National Emergency is not used in Constitution. “Proclamation of Emergency” is used.



Art.352: If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation (order), made a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the proclamation.



The proclamation of emergency may be varied or rocked by the President by a subsequent proclamation.

An imminent danger is enough for proclamation… 

A proclamation of emergency can be made even before the actual occurrence of event contemplated in Art.352 have taken place if the President is satisfied that there is an imminent danger of war or external aggression or armed rebellion.



Thus actual occurrence of event mentioned in Art. 352 is not essential.



Summary: President, satisfaction, grave emergency, security threatened (war or external aggression or armed rebellion), declare, entire or part (before 42nd CAA 1976, it was whole emergency or none).



Can be varied or revoked.



Even before actual event, just with imminent danger of all 3.



Different proclamation for different areas at exactly the same time. For e.g., war in north, external aggression in north-east and armed rebellion in south India, even at the same time and even 2 proclamations at the same place, even if earlier exist (38th CAA, 1975).



War + External aggression = External emergency



Armed rebellion = Internal emergency



‘Internal disturbance’ replaced by ‘Armed rebellion’ by the 44th CAA, 1978.



Also president can proclaim a National emergency only after receiving a written recommendation from the cabinet by 44th CAA, 1978.



Deleted 38th CAA, 1975 and made emergency applicable under judicial review.

PAGE 69



Minerva Mills Case, 1980: proclamation can be challenged (Judicial Review) on the grounds of mala fide, wholly extraneous and irrelevant facts, absurd or perverse.



For new proclamation and varying an existing proclamation: need to be placed in parliament and special majority (50% + 1 of total membership and 2/3rd of present and voting).



For revoking proclamation: no need to be placed in Parliament. Pre 44th CAA, 1978

Post 44th CAA, 1978

Cabinet continues as long as it wants.

Periodic parliamentary approval (6 months at a time).

Simple majority.

Special majority.

Internal disturbance (vague definition) th

Armed rebellion

Entire India only (Pre 38 CAA)

Parts or entire (38th CAA)

President may or may not revoke, if LS disapproves it.

President must revoke, if LS disapproves it.

Approval by President: 

The proclamation of emergency must be laid before each House of Parliament and it shall cease to be in operation at the expiration of one month, unless before the expiration of one month it has been approved by resolutions of both Houses of Parliament.



A resolution approving the proclamation must be passed by a special majority that is by a majority of not less than 2/3rd of the members present and voting in each house and more than half of total membership.



For e.g., 25.12.2014: Grave emergent situation (War, External aggression, armed rebellion). 29.12.2014: Written recommendation from the cabinet. 01.01.2015: proclamation of emergency by President. 31.01.2015: ceases to exist if:





1.

Parliament not in session.

2.

Not passed by LS and RS.

3.

Not passed by either LS or RS.

Parliamentary sessions: 1.

Budget session: in the months of Feb to May.

2.

Monsoon session: in the months of July to Sept.

3.

Winter session: in the months of Nov to Dec.

This is just convention sessions can be conducted anytime. Only condition is that 6 months should not pass between 2 parliamentary sessions (Duty of President)



30.01.2015: Session is conducted, earlier than convention. Passed by LS and RS.



Now it will continue till 30.07.2015 (6 months).



Periodic parliamentary approval (44th CAA): can be extended for 6 months at a time.



30.01.2016, 30.07.2016 and so on (but approval before that date obviously).



However, if LS gets dissolved either before 1 month or 6 months (let say 29.06.2015) i.e. without approving prolongation of emergency, then emergency continues till 30 days from first sitting for LS after reformation (unless the newly formed LS passes it).



However, it do needs to be approved by RS even if LS is dissolved.

PAGE 70

End of emergency: 

If no continuation given by parliament or RS as the case may be.



If LS disapproves, president must revoke it.



Disapproval: LS only + simple majority only.

EFFECTS OF PROCLAMATION OF EMERGENCY 

Center’s executive power become absolute (Art. 353)



Parliament can make any law on any state subject (Art. 353(b))



Centre can change the tenets of distribution of revenue between the union and the states (Art. 354)



LS can be extended indefinitely (Art. 83(2))



Suspension of FR guaranteed by Art. 19

Centre’s executive power become absolute (Art. 353)  Centre: can give directions to any state with respective to exercise of its executive power 

Usually it can be given only in certain aspects



In normal times, the executive power does not extend to give such direction subject to certain exceptions



Complete control without suspension



Suppose national emergency is in Rajasthan, but this provision extends to any state

Parliament can make any law on any state [Art.353 (b)]  Parliament can make laws (president can issue ordinance) on any item on state list 

Fundamental change in distribution of power, becomes unitary rather than federal



Law – making power of the state is not suspended, it is subject to the overriding power of the union parliament



All such laws become null and void, 6 months after emergency ends



Suppose national emergency is in Rajasthan, but this provision extends to any state

Centre can change the tenets of distribution of revenue between center and state (Art. 354)  Centre can modify, reduce or stop the transfer of funds to state 

Any modification will continue even after the emergency is long gone (till 31 st March, end of financial year)



Need to be passed by both houses

LS can be extended indefinitely (Art. 83(2))  5th LS (1971-77), twice extended by 1 year each 

WHO – president



Beyond 5 year, 1 year at a time



Parliamentary law needs to be passed to that effect



Same can be done by parliament for state assembly



Both can’t continue more than 6 months after emergency ends

Suspension of FR guaranteed by Art. 19  Art. 358: No more Art. 19. Any law or any executive action can abridge the rights guaranteed by Art.19 

Meaning – No separate notification required i.e. Art. 19 gone as soon as proclamation of emergency is made



Executive and legislative can’t be challenged even after emergency cease to exist



Restrictions: only war, or external aggression or Armed rebellion; only emergency related laws are under its purview not others PAGE 71

Suspension of Right of Enforcement of FR (Art. 359)  Art. 359 : President can suspend the right to enforce FRs 

Right to move any court for the enforcement of any or all FRs (except Art. 20 & 21)



All proceedings pending in any court for the enforcement of such rights is suspended



Duration, number of articles and territorial extent: president decides.

Comparison of Art. 358 and 359 

Art. 358: Suspension of Art. 19 is complete



Art. 359: Only enforcement and proceedings are halted i.e., rights are alive in theory but remedy is absent, so suspended in practice.



Any law will become null and void at the end of emergency to the extent it is in contravention of the FRs



Not necessarily the entire law, but just a particular line or paragraph. E.g.: 2nd para, 7th entry

Art. 358

Art. 359

Automatic suspension

Need to pass an order

Art. 19 only

All (except 20, 21)

Only external emergency (War + external aggression)

Both internal and external (including armed rebellion)

Complete duration

Customized

Entire nation

Customized

National Emergency in India: History 

Its thrice not once



1962: Chinese aggression in Arunachal Pradesh (NEFA – North East Frontier Agency), external aggression, continued till 1968 (so no need to proclaim a new one in 1965, at the time of war against Pakistan)



1971: War with Pakistan, till Mar. 1977



1975: Emergency on grounds of internal disturbance, even when a national emergency was already existing, highly controversial



1975: Emergency, 21 months period (25 June 1975 – 21 March 1977)



Tug of War between executive and judiciary: 24th CAA, privy purses abolition, Bank Nationalization, Kesavanda Bharati, 42nd CAA



A state of emergency across the country President Fakhruddin Ali Ahmed + PM Indira Gandhi + “Internal Disturbance”



No written recommendation from cabinet, rather it was not even aware till after it was made.



State of Uttar Pradesh V. Raj Narain (contested against Indira Gandhi): HC said that she used state machinery and cancelled her election, null and void and barred her from contesting any election for next 6 years



Guilty on the charge of misuse of Govt. machinery for her campaign (12.06.1975)



Challenge to SC, upheld and stop all privileges extended to her as MP (24.06.1975)



P.M secretariat gained significant power on the expense of the cabinet



The economists described her as the ‘Empress of India’



Centralization of power



Criticism of misuse of exorbitant powers granted during the emergency



Elections after 1977, congress party lost for first time PAGE 72



A non-congress party Govt. formed at the Centre, with Janata party, Morarji Desai as PM



Shah commission: circumstances did not justify proclamation of emergency



So the passage of various safety mechanisms against the misuse of emergency by 44 th CAA, 1978.

FAILURE OF THE CONSTITUTIONAL MACHINERY    

President’s Rule imposed in States Art.355 imposes a duty on Centre to ensure that the govt. of every state should follow the provisions of the Constitution. If the State don’t follow those provisions then it is states as ‘Failure of the Constitutional Machinery’. Then the Centre takes over the Govt. of the State under Art.356. President’s rule can be proclaimed on two grounds – o State cannot be carried out in accordance with the provisions of the Constitution o State fails to comply with or to give effect to any direction from the Centre

Approval and Duration  Must be approved by both the Houses within 2 months from the date of its issue. 

If LS dissolves before approving the proclamation then President’s rule survives until 30 days from the first meeting of the newly formed LS, provided RS approves in this mean time.



If both are approved then it survives for 6 months from the date of passage. It can be extended for a maximum period of 3 years with the approval of the Parliament, every 6 months. o

President’s rule can be extended by 6 months at a time, beyond 1 year only when following 2 conditions are satisfied: -

A proclamation of NE should be in operation in the whole India, or in the whole or any part of the State; and

-

The Election Commission must certify that the general elections to the Legislative Assembly of the concerned state cannot be held on account of difficulties.



This can be done by the Simple Majority (Majority of members present and voting)

Consequences  He takes up the functions of the State govt. and powers vested in the Governor or any other executive authority. 

He declares that powers of the State Legislature are to be exercised by the Parliament.



Suspension of constitutional provisions.



He dismisses the State Council of Ministers headed by the CM.



He either suspends or dissolves the State Legislative Assembly.



A law made by the Parliament or President or any other executive authority continues to be operative even after the President’s rule. It can be repealed or altered or re-enacted by the State Legislature.



But note that he cannot assume to himself the powers vested in the concerned HC or suspend the provisions related to it (remains same).

S.R.Bommai V. Union of India (1994)  SC upheld the validity of the proclamation of the President’s rule in M.P., Rajasthan and Himachal Pradesh (BJP lead govts.) in the wake of Ayodya incident on the ground that Secularism is a ‘Basic Feature’ of the Constitution. But, the SC did not uphold the validity of imposition in Nagaland (1988), in Karnataka (1989) and in Meghalaya (1991). PAGE 73



SC laid the following guidelines: 

Proclamation of Emergency under Art.356 is subject to Judicial Review.



If the Court holds the proclamation is unconstitutional then it has power to restore the dismissed state govt. and revive the state legislature if it was suspended or dissolved.



If State govt. works against ‘Secularism’, President’s rule can be imposed.



No wholesale dismissal of Opposition ruled govts.



Imposition of President’s rule and dissolution of assembly cannot be done together.



State Assembly can be dissolved after Parliament approval of Central Rule.

Difference between NE and SE National Emergency (A 352)

Presidential Rule (A 356)

State Executive continue its functions and its effect is that

State Executive is dismissed and State Legislature is either

the Centre gets concurrent powers of administration and

suspended or dissolved.

legislation in the State. Parliament can only make laws on the State List.

Parliament can delegate the power to make laws for that particular State. President to make laws for the State in consultation with the MPs from that State. Such laws are known as President’s Acts.

No maximum period is mentioned. Can be continued

Maximum period is 3 years.

indefinitely with the approval of the Parliament for every 6 months. By Special Majority

By Simple Majority

Affects the FRs

Does not affect the FR

LS can pass a resolution for its revocation

There is no such provision. It can be revoked by the President only on his own.

FINANCIAL EMERGENCY 

A 360 empowers the President to proclaim a Financial Emergency if he is satisfied that a situation has arisen due to which the Financial stability or credit of India or any part of its territory is threatened.



President’s satisfaction comes under Judicial review (44th CAA, 1978).

Approval and Duration  A proclamation declaring Financial Emergency must be approved by both the houses within 2 months from the date of issue. 

If LS dissolves before approving the proclamation then President’s rule survives until 30 days from the first meeting of the newly formed LS, provided RS approves in this mean time.



Once it is approved by both the houses then it continues INDEFINITELY till it is revoked. This implies: -

No maximum time period is mentioned for its operation

-

Repeated parliamentary approval is not required for its continuation.



This can be done only by a Simple majority of houses.



It may be revoked by the President at any time by a subsequent proclamation. Such proclamation does not require the Parliamentary approval.

PAGE 74

Consequences  Executive authority of the Centre extends – to directing any state to observe such canons of financial propriety as are specified by it; and to directions as the President may deem necessary and adequate for the purpose. 

Any such direction may include provisions requiring o

The reduction of salaries and allowances of all or any class of persons serving in the State; and

o

The reservation of all money bills or other financial bills

for the consideration of the President after they are passed by the Legislature of the State. 

The President may issue the directions for the reduction of salaries and allowances of all or any class of persons serving the Union and the Judges of SC and the HC.

PAGE 75

SYSTEM OF GOVERNMENT PARLIAMENTARY SYSTEM 

The Constitution of India provides Parliamentary system both at Centre (Art.74, 75) and at States (Art.163, 164).



Generally Democratic Governments are of two types – 1.

Parliamentary System: Responsible govt. [Executive is responsible to legislature (LS) for its policies and acts.] Cabinet govt. [Cabinet is nucleus power in a parliamentary system and it acts like a bridge Bt. E & L] Prime Ministerial govt. [As the role, influence, power and position of PM have increased significantly] Westminster model of govt. [Named after the location of Britain Parliament] E.g. India, Britain, Japan, Canada etc.

2.

Presidential System: It is not responsible to the Legislature. Constitutionally independent of the legislature in respect of its term of office. E.g. USA, Brazil, China, Russia, Sri Lanka etc.

DIFFERENCE BETWEEN PARLIAMENTARY SYSTEM AND PRESIDENTIAL SYSTEM Parliamentary System

Presidential System

Features:

Features:

1. Dual executive (President and PM).

1. Single executive (President is both head of the State and

2. Majority Party rule.

Head of the Government). 2. President (4 years – he cannot be removed by the

3. Collective responsibility (Ministers are collectively

Congress) and Legislators elected separately for a fixed

responsible to the Parliament (Art.75). Act as a team, and

term.

swim and sink together – vote of no confidence).

3. Non-responsibility (President and his Secretaries

4. Political homogeneity (all ministers are from same

(Kitchen Cabinet) are not responsible to Congress for their

political party and so they share same political ideology).

acts. They neither possess membership in Congress nor

5. Double membership (ministers are members of both

attend its sessions).

Legislature and Executive. Minister who is not a MP for

4. Political homogeneity may not exist.

consecutive 6 months ceases to be a minister).

5. Single membership.

6. Leadership of PM (Leader of Ministers, Parliament,

6. Domination of President.

Party in power).

7. No dissolution of Lower house (President cannot dissolve

7. Dissolution of LS (PM can advise the President to

the House of Representatives).

dissolve the LS and hold fresh elections).

8. Separation of powers (The Doctrine of Separation of

8. Fusion of powers (no water tight separation of powers)

powers is the basis of the American Presidential system. The LEJ are separated and vested in 3 independent organs of the govt.).

Merits:

Demerits:

1. Harmony between Legislature and Executive (As the

1. Conflict between legislature and executive.

Executive is a part of Legislature and both are independent

2. Non-responsible government.

at work, there is a less scope for conflicts).

3. May lead to autocracy.

2. Responsible government (Question hour, Discussions,

4. Narrow representation. PAGE 76

Adjournment motion, no confidence motion etc.). 3. Prevents Despotism (the executive authority is vested in a group of people (ministers) and not in a single person (checks the dictatorial tendencies)). 4. Wide representation (it is possible to provide representation to all sections and all regions in the govt.). 5. Ready alternative govt. (if ruling party loses its majority, the President can invite the opposition party to form the govt. without fresh elections) Demerits:

Merits:

1. Unstable government.

1. Stable government.

2. No continuity of policies.

2. Definiteness in policies.

3. Against separation of powers.

3. Based on separation of powers.

4. Government of amateurs (PM has limited choice to

4. Government by experts.

select Ministers from MPs alone and does not extend to external talent. The parliamentary system is not conductive to administrative efficiency as ministers are not experts in their fields. Ministers devote most of their time to parliamentary work, cabinet meetings, and party activities). 5. Dictatorship of Cabinet (when there is absolute majority, the cabinet autocratic and enjoys nearly unlimited powers.)

REASONS FOR ADOPTING PARLIAMENTARY SYSTEM A plea was made to adopt American Presidential System of Government by K T Shah in Constituent Assembly but our founding fore fathers preferred British parliamentary system due to the following reasons – 1.

Familiarity with the System– K M Munshi argued that, ‘For last 30 or 40 years, some kind of responsibility has been introduced in the governance of this country. Our constitutional traditions have become parliamentary. After this experience, why should we go back and try some new thing?’

2.

Preference to more Responsibility – Dr. B R Ambedkar said, ‘a democratic executive must satisfy two conditions: Stability and Responsibility. But till now no democracy satisfied these two in equal degree. American system gives more stability than more responsibility. British system gives more responsibility but less stability. The Draft Constitution has preferred more responsibility to more stability.’

3.

Need to avoid Legislative – Executive Conflicts

4.

Nature of Indian Society – India is one of the most heterogeneous States and most complex plural societies in the World. Hence, the makers adopted the Parliamentary system as it offers greater scope for giving representation to various sections, interests, regions in the govt.

PAGE 77

DISTINCTION BETWEEN INDIAN AND BRITISH MODELS 1.

India has Elected President as its Head of the State (Republic) and Britain has Monarchial system.

2.

Britain is based on Doctrine of the Sovereignty of Parliament, while India has Federal System along with Parliament.

3.

In Britain, the PM must be the member of the Lower House (House of Commons). In India, the PM may be a member of any of the two houses.

4.

In Britain, only MPs are to be appointed as Ministers. In India, Ministers who are appointed are not required to be a MP for a maximum period of 6 months.

5.

‘Shadow Cabinet’ is a unique institution of the British Cabinet System. It is formed by the Opposition party to balance the ruling cabinet to prepare its members for future ministerial office.

6.

Britain has the system of legal responsibility of the minister while India has no such system. Unlike in Britain, the ministers in India are not required to countersign the official acts of the Head of the State.\

PAGE 78

FEDERAL SYSTEM Political system is classified into two types based on relationship between National govt. and Regional Govt.: 1.

Unitary System – in which all powers are vested in the national govt. E.g. Britain, France, Japan, China, Italy etc.

2.

Federal system – powers are distributed between States and Union by the Constitution itself and both operate in their respective jurisdiction independently. E.g. India (States), USA (States), Canada (Provinces), Russia (Republics), Switzerland (Cantons), Australia, Brazil etc.

Federation can be formed by two types: 1.

By Integration: some group of military weak or economically backward States (independent) come together to form a federation (on agreement) to attain stability. E.g. USA.

2.

By Disintegration: A big unitary state is divided into number of small States for the convenience of governance and to grant autonomy to the provinces to promote regional interest. E.g. Canada.

The Constitution of India adopted Federal System of government due to two main reasons: 1.

Large size of the Country (Efficient governance)

2.

Socio-Cultural diversity (National unity with regional autonomy)

Indian federation resembles Canadian federation – 1.

In its formation (by disintegrating)

2.

In its centralizing tendency (vesting more powers with Centre)

3.

In its preference to the term ‘Union’ (the Canadian federation is also called a ‘Union’)

FEDERAL FEATURES OF THE INDIAN CONSTITUTION 1.

Dual Polity: The Constitution establishes Dual Polity consisting Union at the Centre and States at the periphery. The Union deals with the matters of national importance like defense, foreign affairs, currency, communication etc. The State govt. looks after the matters of regional and local importance like public order, agriculture, local govt. etc.

2.

Written Constitution: Lengthiest Constitution. It avoids the misunderstandings and disagreements between the two. It specifies the Structure, Organizations, powers and functions of both and prescribes the limits within which they must operate.

3.

Division of Powers: Seventh Schedule which divides the powers in terms of Union, State and Concurrent List.

4.

Supremacy of the Constitution: The Organs of the govt. (Legislative, Executive and judicial) at both levels must operate within jurisdiction prescribed by the Constitution.

5.

Rigid Constitution: The Division of powers and Supremacy of Constitution can be maintained only if the method of its amendment is rigid. So, for the amendment of the Constitution in the matters of Centre-State relations a special majority and half of the States’ legislatures must ratify.

6.

Independent Judiciary: It is required to protect supremacy of the constitution by exercising the power of judicial review and to settle disputes between the Centre and the States or between the States.

7.

Bicameralism: The LS represents the people of India as whole and RS represents the States of Indian federation and it is required to maintain the federal equilibrium by protecting the interests of the States against the undue interference of the Centre.

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UNITARY FEATURES OF THE CONSTITUTION 1.

Strong Centre.

2.

States are indestructible.

3.

Single Constitution: no separate constitution for the State (they cannot draft their own except J&K).

4.

Flexibility of the Constitution: other than Centre-State relations, Parliament can alone amend the Constitution.

5.

No equality of State representation: The number of members for RS from States is based on the population and not like USA (two for each State).

6.

Emergency provisions: There are three types of Emergencies – National, State and Financial. During Emergency, the States goes into the total control of the Centre. It converts the Federal to Unitary form without a formal amendment. This type of transformation is not found in any other federation.

7.

Single Citizenship: USA, Switzerland, Australia have Dual Citizenship.

8.

Integrated Judiciary: We have Supreme Court at the top and the State High courts below it. This single system of courts enforces both the Central laws as well as the State laws. But in USA, there is a double system of courts whereby the Federal laws are enforced by the Federal Judiciary and the State laws by the State Judiciary.

9.

All-India Services: In US, the Federal govt. and the State govt. have their separate public services. But in India, in addition to the Central and State public services there are All-India services also. Centre has ultimate power over these people. Thus these services violate the principle of federalism under the Constitution.

10. Integrated Audit Machinery: The CAG (Comptroller and Audit-General of India) audits the accounts of not only the Central but also those of the State govts. The President can appoints and removes him without consulting the States. This restricts the autonomy of finance of the States. American CAG has no role in States’ finance. 11. Parliament’s authority over State List: The parliament is empowered to legislate on any subject of the State List if RS passes a resolution to that effect in the National Interest and also during National Emergency, State Emergency, and Request from 2 or more States on certain State list item and International Treaty’s implementation without amending the Constitution. 12. Appointment of Governor (Canadian model): The President appoints him. Governor acts as an agent of the Centre. Through him, the Centre exercises control over the States. In US, the head of the State is an elected candidate. 13. Integrated Election Machinery: The EC conducts not only to the Centre but also to the States. This is constituted by the President and the States have no right to say anything in this matter. US have separate machinery. 14. Veto over State Bills: The President enjoys absolute veto over certain State bills. (The governor reserves certain types of bills for the consideration of the President. He can withhold his assent to such bills.)

CERTAIN EVALUATION OF THE FEDERAL SYSTEM 

K C Wheare described the Constitution of India as ‘‘quasi-federal’’. He remarked that “Indian Union is a unitary state with subsidiary federal features rather than a federal state with subsidiary unitary features.”



According to K Santhanam, the two factors have been responsible for increasing the unitary bias (tendency of centralization) of the Constitution. These are: i.

Dominance of the Centre in the financial sphere and the dependence of the States upon the Central grants

ii.

The Emergence of a powerful planning commission which controls the developmental process in the States.

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He observed: “India has practically functioned as a unitary state though the Union and the States have tried to function formally and legally as a federation.” 

Others described as – extreme federal, bargaining federalism, federation with a strong centralizing tendency, cooperative federalism (though it created strong central govt. it has not reduced states to the level of administrative devices – a new kind of federation to meet India’s peculiar needs.)



In Bommai Case 1994, the SC laid down that the Constitution is federal and characterized federalism as its ‘Basic feature’. It observed: “The Centre has more power but it does not mean that states are appendages of Centre. The States have independent constitutional existence. Within the sphere allotted to them, the States are Supreme.”

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CENTRE-STATE RELATIONS The Constitution divided all powers between Centre and State to establish maximum harmony and coordination between them. The Centre-State relations can be studied under 3 categories: 

Legislative relations



Administrative relations



Financial relations

But there is no division of judicial power as the Constitution established the Integrated Judicial system to enforce both the Central laws as well as State laws.

LEGISLATIVE RELATIONS [ART. 245 TO 255] [PART XI] There are four aspects in the Centre-State legislative relations viz.: 

Territorial extent of Central and State legislation



Distribution of legislative subjects



Parliamentary legislation in the State field



Centre’s control over State legislation.

Territorial extent of Central and State legislation  The Parliament can make laws for the whole or any part of the territory of India. 

A State legislature can make laws for the whole or any part of the State. These are not applicable outside the State, except when there is a sufficient connection between the State and the object.



The Parliament alone can make ‘extra territorial legislation’. Thus, the laws of the Parliament are also applicable to the Indian citizens and their property in any part of the world. The laws of Parliament are not applicable in the following areas: 

The President can make regulations for the peace, progress and good govt. of the four UTs – the Andaman and Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli, Daman and Diu. This regulation has the same force and effect as an act of Parliament. It may also repel or amend any act of Parliament.



The Governor can restrict the act of Parliament in Scheduled area (and also Governor of Assam – Tribal area – autonomous district) (President – Tribal areas in Mizoram, Meghalaya, Tripura) in the State or apply with some modifications and exceptions.

Distribution of Legislative Subjects  The Constitution provides three-fold [VII Schedule] (inspired from the Govt. of India Act of 1935) distribution of legislative subjects between Centre and the States, viz., List-I (the Union List), List-II (the State List) and List-III (the Concurrent List). 

Union List > Concurrent List > State List



Governance is not exhaustive and is ever-growing. So the items which are coming newly like cyber law will be under Union – Residuary powers.

Parliamentary Legislation in State Field Under 5 extra-ordinary situations the Union may enact laws even on State list items – National Interest (A 249), National Emergency (A 250), and Request by 2 or more States (A 252), International Treaty (A 253) and State Emergency (A 357).

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National Interest (A 249):  If RS so resolves that it is necessary or expedient (beneficial) for the Union to make laws on the State list items then Parliament gets the power and the competence to enact such laws. 

This resolution should be passed by a majority of not less than 2/3rd of the members present and voting.



This resolution prescribe the item of the State list on which Union can make law.



This resolution is valid up to 1 year.



The Parliament may make laws up to valid period of resolution.



The life of the resolution may be extended at maximum by 1 year of time, any number of times.



The law passed by the Parliament ceases to have effect on the expiry of 6 months from the cessation of the validity of resolution.

National Emergency (A 250):  The Constitution authorizes the Parliament to enact on State List items during the period of NE. 

Such law shall cease to have operation of expiry of 6 months from cessation of emergency.

Request from 2 or more States (A 252):  If 2 or more States consider it that it is desirable for the Union to make laws on the State list items. Thus the Union gets the authority. (law is only applicable to only those states but not all) 

The State consent it by the passage of resolution by all the houses of the State legislature.



A third State may adopt the consent.



The law so made shall remain valid unless the Parliament amends or repeals it for such amendment or repealing the same procedure is followed i.e. by consent or adoption.

International Treaty (A 253): If India is signatory to any foreign treaty for the purpose of which law is required on a state list item then the Union can enact on the State list item. State Emergency (A 357): If the Presidential proclamation under A 356 declares that it shall be correspondent for the Parliament to make laws on State list items then Parliament gets its authority.

Centre’s control over State Legislation   

The Governor can reserve certain types of bills passed by the State legislature for the consideration of the President. The President enjoys absolute veto over them. Bills on certain matters enumerated in the State list can be introduced in the State legislature only with the previous sanction of the President (For E.g. Bills imposing restrictions on the freedom of trade and commerce). The President can direct the States to reserve money bills and financial bills passed by the State Legislature for his consideration during Financial Emergency.

Sarkaria Commission on Centre-State relations observed: “The rule of the Federal Supremacy is a technique to avoid absurdity, resolve conflict and ensure harmony between the Union and State Laws. If not, there will be a chance of twotier political system which leads to political chaos.”

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ADMINISTRATIVE RELATIONS [A 256 – A 263] [PART XI] Distribution of Executive Powers  Executive power of the Centre extends to the whole of India to the matters in Union List and also on rights, authority and jurisdiction conferred on it by any treaty or agreement. 

Executive power of the State extends to the territory under it to the matters in State List.



Though the law on a Concurrent List is enacted by the Parliament, it is to be executed by the States except when the Constitution or the Parliament has directed otherwise.

Obligation of States and the Centre  The Executive powers of every state is to be exercised in such a way – as to ensure compliance with the laws made by the Parliament and any existing law which apply in the State; as not to impede or prejudice the exercise of executive power of the Centre in the State. 

Art. 365 says that where any State has failed to comply with any directions given by the Centre, President’s rule can be imposed in that State.



Construction and Maintenance of Communication, protection of Railways within state, schemes for welfare of the STs in the States, provision of instruction in the Mother tongue at the primary stage to linguistic minority children. Art. 365 is applicable here also.

Relations during Emergency  National Emergency (A 352): Centre becomes the complete authority and can make laws on ‘any’ matter even though State Executive are not suspended. 

President’s Rule (A 356): He can assume to himself the functions of the State govt. and powers vested in the Governor or any other Executive authority in the State.



Financial Emergency (A 360): Centre can direct the States to observe canons (collection of) of financial propriety.

All India Services  These consists of Officers who are appointed and removed by the Union. However they may be posted at he Union level of posts or State level of posts. 

At the State level, their work is to ensure that Union laws are being followed and Central programs are being implemented.



Though the All India Services are violating the principle of Federalism, they are supported on the ground that – they help in maintaining high standard of administration and they help to ensure uniformity of the administrative system throughout the country.

Public Service Commissions Chairman and Members of the Public Service Commissions are appointed by the Governor, can be removed only by the President. Integrated Judicial System

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FINANCIAL RELATIONS [A 268 – A 293] [PART XII] 

There is a Financial Bias in favor of Union, we have the ‘welfare state’ setup at Union and State levels. States must undertake welfare activities for which they do not have adequate financial assistance. So they ask grants-in-aid from the Union. Thus the States require Union assistance to discharge their duty as a welfare state. Further when Financial Emergency is proclaimed under Art.360 then Centre may take overall resources to cope up with the situation. Thus distribution of resources is affected.

*****CHANGE HAPPENS DUE TO GST BILL PASSAGE******

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INTER-STATE RELATIONS INTER-STATE WATER DISPUTES A 262 provides for the adjudication of inter-state water disputes. It makes two provisions –  

Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution and control of waters of any inter-state river and river valley. Parliament may also provide that neither the SC nor any other court is to exercise jurisdiction in respect of any such dispute or complaint.

Under this provision, the Parliament has enacted two laws –  

River Boards Act, 1956: provides for the establishment of river boards for the regulation and development of Interstate River and river valleys. Inter-State Water Disputes Act, 1956: empowers the Central govt. to setup an ad hoc tribunal for the adjudication of a dispute between two or more states in relation to the waters of an Inter-state River or river valley and binding on the parties. (not comes under any court of law)

INTER-STATE COUNCILS A 263 contemplates the establishment of an Inter-State Council to effect coordination between the States and between Centre and States. Thus, the President can establish such a council if required. Its function is complimentary to SC Jurisdiction under A 131, but its function is advisory unlike that of the court which gives a binding decision.

INTER-STATE TRADE AND COMMERCE Art.301 to 307 in part XIII.

ZONAL COUNCILS  



Divided into 5 zones – Northern, Central, Eastern and Western, Southern. While forming these zones, several factors have been taken into account which include the natural divisions of the country, the river systems and means of communication, the cultural and linguistic affinity and the requirements of economic development, security and law and order. Objectives: o To achieve an emotional integration of the country. o To help in arresting the growth of acute state-consciousness, regionalism, linguism and particularistic trends. o To enable Centre and States to cooperate with each other in Social and Economic matters and exchange ideas and experience in order to evolve uniform policies. o To cooperate with each other in the successful and speedy execution of major development projects.

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PARLIAMENTARY PROCESSES AND INSTRUMENTS Art. 79 – 122   

 

Westminster model of Govt. (British) Parliament: President, Council of States (RS), House of People (LS). President is the integral part of the Parliament because President’s assent is required to change the Bill into an Act. He also summons (order to be present) and prorogue (to dissolve the session) both the houses, dissolves the LS, addresses both the Houses and issue ordinances when they are not in session etc. India relied on the British pattern rather than American pattern. American President is not the Integral part of the Legislature (Congress – Senate and House of Representatives). The Parliamentary form of govt. lays stress on the interdependence between Legislature and Executive Organs. Hence, we have ‘President-in-Parliament’. The Presidential form of Govt. lays stress on Separation of Legislative and Executive Organs.

COMPOSITION OF RS       

Maximum Strength: 250 Present Strength: 245 (People represented only by 233) 229 (States) + 4 (Delhi – 3, Puducherry - 1) + 12 (Nominated by President) = 245 12 Members must be nominated (compulsory) on the advice of Council of Ministers. With Proportional representation by means of Single Transferable Vote. Nominated Members of the State Legislative Assembly has no role in electing RS MPs. These Elections are organized by Election Commission of India.



No. of Votes required =

𝑵𝒐.𝒐𝒇 𝑴𝑳𝑨𝒔 𝒊𝒏 𝒕𝒉𝒂𝒕 𝑺𝒕𝒂𝒕𝒆 (𝐍𝐨.𝐨𝐟 𝐑𝐒 𝐌𝐏𝐬 𝐧𝐞𝐞𝐝 𝐭𝐨 𝐛𝐞 𝐞𝐥𝐞𝐜𝐭𝐞𝐝 𝐟𝐫𝐨𝐦 𝐭𝐡𝐚𝐭 𝐒𝐭𝐚𝐭𝐞 + 𝟏) +𝟏

COMPOSITION OF LS    

Maximum Strength: 552 Present Strength: 545 (People represented only by 543) 530 (States) + 13 (UTs) + 2 (Nominated from Anglo-Indian) = 545 Nomination of these 2 members is optional (not compulsory).

SYSTEM OF ELECTIONS TO LS Territorial Constituencies  

Each State: The ratio between No. of allotted seats of LS and its population is same for all States. (Exception: < 6 million people) [between the different States] Each Constituency: Ratio between Population of each constituency and no. of seats allotted is same for all Constituencies all over the State. [between different constituencies in the same State]

Readjustment after each Census 

Boundaries are redrawn (Delimitation Exercise) without changing no. of MP seats for the particular state (In 1976, 42nd amendment froze the no. of seats up to 2026 – encouraging population limiting measures) but the no. of SC, ST seats in a State are changed in accordance of recent census of the State.

Proportional Representation not adopted Reasons: 1.

Difficulty for the voters to understand the system due to low literacy. PAGE 87

2. 3. 4. 5.

If it is adopted, definitely small local parties in the States get represented in LS and results in a Coalition Govt. (Instability). It eliminates the contact between Voters and Representatives. It promotes minority thinking and group interests. It increases the significance of party system and decrease that of voter.

DURATION   

RS: Permanent House. One-third members retire every 2 years. The Constitution has not mentioned any duration for RS members. According to Representation of the Peoples Act of 1951 provided the term of RS as 6 years. LS: 5 years. President is authorized to dissolve the LS at any time and this cannot be challenged in Court of Law. The disqualification based on Anti-defection law is decided by the Chairman and Speaker. His decision is FINAL (not by the President). But it comes under Judicial Review.

SPEAKER 



Whenever the LS is dissolved, the Speaker does not vacate his Office and continues till the newly elected LS meets. Then Pro-tem Speaker comes to Office to take all members’ oaths and remains until new Speaker is elected. President appoints Pro-tem Speaker. The date of election of Speaker decided by President. Speaker derives his power from 3 sources – Constitution of India, Rules of Procedure and Conduct of Business of LS, and Parliamentary Conventions. Duties       

He is the final interpreter of the Constitution of India, Rules of Procedure and Conduct of Business of LS, and Parliamentary Conventions within the House. He adjourns the House or suspends in the absence of a Quorum (Minimum Strength – 1/10th of 545). He does not vote in the proceedings of LS until and unless case of tie. He presides over Joint Meeting of both houses. He decides whether the bill is Money Bill or not. His decision is FINAL in this aspect. He decides the question of disqualification of member under Anti-defection Law. But it comes under judicial review. He appoints the Chairman of all the Parliamentary Committees of LS and supervises its functioning. He himself is the Chairman of Business Advisory Committee, Rules Committee and General Purpose Committee.

Independence and Impartiality 

 



He can be removed only by a resolution passed by the LS by an Effective Majority (majority of total members present) and not by Simple Majority (majority of total members present and voting). To introduce this resolution, at least support of 50 members is necessary. Also 14 days prior notice should be issued to Speaker. He can vote on proceeding of his removal (only case of voting in the very first instance). His salary, allowances are fixed by the Parliament and charged on Consolidated Fund of India. His work cannot be discussed or criticized in LS except on a Substantive Motion (A substantive motion is a self-contained independent proposal submitted for the approval of the House and drafted in such a way as to be capable of expressing a decision of the House, e.g., all resolutions are substantive motions). He does not vote in the proceedings of LS until and unless case of tie (impartially).

DEPUTY SPEAKER   

The Date of the Election of Deputy Speaker is after election of Speaker and decided by Speaker. Deputy Speaker is not sub-ordinate to Speaker. He is directly responsible to the House. Removal procedure is same as Removal of Speaker. PAGE 88

 

Whenever he is appointed as a Member of a Parliamentary Committee, he automatically becomes its Chairman. Since 11th LS, there has been a consensus (general agreement) that the Speaker is from Ruling Party and Deputy Speaker is from main opposition party.

Panel of Chairpersons of LS acts as Speaker when both Speaker and Deputy Speaker are absent but not during VACANT. If it is vacant, President may appoint any of the Member of the House. Speaker nominates them.

CHAIRMAN    

Vice-President is the ex-officio chairman of the RS and not during the period when he acts like a President. The powers and functions are same as Speaker except in 2 cases – Money Bill and Joint meeting. Even though he is not a member of the House, he does not vote in the proceedings until and unless case of tie. The Chairman can be removed from his Office only if he is removed from the Office of VP. He cannot Vote during the proceedings of his removal (but Speaker, Deputy Speaker, Deputy Chairman can vote).

Panel of Vice-Chairpersons of RS acts as Chairman when both Chairman and Deputy Chairman are absent but not during VACANT. If it is vacant, President may appoint any of the Member of the House. Chairman nominates them. Leader of the House: PM/Minister/Member – not in Constitution, only in Rules of the House and Parliamentary Statute Leader of Opposition: Member from Opposition (1/10th of the seats must be of that party) – not in Constitution, only in Rules of the House and Parliamentary Statute Whip: Ruling/Opposition – assistant floor leader - neither in Constitution nor in Rules of the House and Parliamentary Statute. It’s just a Convention.

SESSIONS OF PARLIAMENT 1. 2. 3.

Budget Session – February to May Monsoon Session – July to September Winter Session – November to December Adjournment

Prorogation

Dissolution

Only terminates a sitting not a session.

Not only terminates a sitting but also the session.

Ends the very life of the Existing house.

Done by the Presiding Officer of the House.

Done by the President.

Automatic or by the President

Does not affect the bills or any other business pending before the house and the same can be resumed again.

It also does not affect the bills or any other business pending before the house. However, all pending notices lapse on prorogation and fresh notices have to be given for the next session.

All business including Bills, Motions, Resolutions, Notices, Petitions etc. before it or its committees lapse.

Question Hour 1. 2. 3.

Starred Question – Oral answer and Supplementary Questions. Unstarred Question – Written Answer Short Notice Question – Orally answered but a notice of less than 10 days.

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LEGISLATIVE PROCEDURE   

Ordinary Bills Financial Bills – Fiscal Matters (Revenue and Expenditure) (Art.110: Money Bills, Art. 117(1): Financial Bills I, Art. 117(3): Financial Bills II). All these bills can be passed by the SIMPLE MAJORITY.

ORDINARY BILLS Can be introduced in either of House of Parliament. 1. 2.

3. 4. 5.

First Reading: Introduction of the bill and its publication in the Gazette constitute the first reading of the bill. No discussion. Second Reading: a. Stage of General Discussion: Provisions are generally discussed. It make take into consideration immediately or may refer to a select committee or joint committee or circulate the bill to elicit public opinion. b. Committee Stage: Select Committee. Examines the bill thoroughly. Can also amend its provisions. Report is sent back to the House. c. Consideration Stage: Each clause is discussed and voted upon separately. They can move amendments also. Third Reading: Acceptance or rejection. No amendments are allowed. Voting. Bill in the Second House Assent of the President

MONEY BILLS – ART.110   

Can only be introduced in Lok Sabha. Decision of Speaker is FINAL in the question whether the Bill is Money Bill or not. It cannot be questioned in any Court of Law or in either of the House or even the President. RS cannot reject or amend the money bill. It can only give recommendations and they are not binding on LS. It must return the bill within 14 days.

Art. 110 deals with the definition of the Money Bill. If the Bill contains ONLY provisions dealing with all or any of the following 1. 2. 3. 4.

It results in imposition, abolition, remission, alteration or regulation of any tax at Union or State level but NOT at local level. Thus, money bills exist in Parliament and State legislature only. It results in regulation of borrowing of money or results in any guarantee by Government of India. Results in withdrawal of money from Consolidated or Contingency fund. Receipt of money in consolidated fund and public account.

Ordinary Bill

Money Bill

Either in LS or RS.

ONLY in LS.

Either by a Minister or a Private member.

Only by a Minister (So compulsorily it is a Govt. Bill)

Can be introduced without the recommendation of the President.

Cannot be introduced or moved without the recommendation of President.

Amended or rejected by RS.

Cannot be amended or rejected. Can only give recommendations.

Detained by the RS for a maximum period of 6 months.

Detained by the RS for a maximum period of 14 days.

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Does not require certification by the Speaker when transmitted to RS.

Require certification by the Speaker when transmitted to RS.

Its defeat in LS may lead to the resignation of the Govt. (if it is introduced by the Minister)

Its defeat in LS shall lead to the resignation of the Govt.

It can be approved, rejected or returned to reconsider the Bill by the President.

It can only be approved or rejected but not returning by the President.

FINANCIAL BILLS (I) – ART. 117(1)  

 

Deals with not only any or all matters mentioned in the Art. 110, but also other matters of general legislation. Financial Bills (I) is similar to Money bill only in 2 matter –  Can be introduced only in Lok Sabha.  Can be introduced only on the recommendation of President. Except that similarity, remaining whole procedure is same as Ordinary Bill. Hence, it can either rejected or amended by the RS (except that an amendment other than for reduction or abolition of tax). When sent to the assent of the President, he can approve or reject or return the bill.

FINANCIAL BILLS (II) – ART. 117(3)    

Contains provisions involving expenditure from the CFI, but does not include any matters of Art. 110. It is treated as Ordinary Bill and same legislative procedure. Only Special feature: Cannot be passed by either House of Parliament unless the President has recommended to that House the consideration of the bill. President is not necessary for its introduction.

JOINT SITTING     



It is only applicable to Ordinary bills and Financial Bills but not to Money bills and Constitution Amendment Bill. Constitution Amendment Bill must be passed by both the Houses separately. It is governed by the Rules of Procedure of LS but not of RS. Speaker > Deputy Speaker > Deputy Chairman If the Bill is already lapsed due to dissolution of LS then President cannot summon Joint Sitting. If LS is dissolved after the President announcement of Joint sitting, then Joint sitting is conducted with that dissolved house. After President announce his intention of Join sitting, none of the houses should proceed further with the bill. It comes into picture when the deadlock happens. A deadlock is deemed to have taken place anyone below after a bill has been passed by one house and transmitted to the other house: 1. If the bill is rejected by the other house. 2. If the houses finally disagreed to the amendments made to the bill 3. If more than 6 months have elapsed from the date of receipt of the bill by the other house without the bill being passed by it.

BUDGETARY POWERS   

Consolidated Fund of India – Like a Kitty Bank. Budget Bill is Money Bill – Finance Bill (how to fill the Kitty) and Appropriation Bill (way to withdraw money from Kitty) Art. 112(1): The President shall in respect of every financial year cause to be laid (“cause to be laid” here means that the person through whom President acts, is Finance Minister of the country, who is known as the custodian of the nation’s Finances) before both the Houses of Parliament a Statement of estimates. PAGE 91

  

Budget as ‘Annual Financial Statement’. Nowhere in the Constitution mentioned the term ‘Budget’. Budget is the ESTIMATE of Income and Expenditure of the Govt. An annual budget circular (let’s say for 2015-16) is issued to all the ministries containing the entries of estimates (2015-16), revised estimates (2014-15), and actual expenditure (2013-14) is introduced in February 2015. Budget also contains –  Estimates of Revenue and Capital receipts.  Ways and means to raise the revenue  Estimates of Expenditure  Details of actual receipts and expenditure of the closing financial year and the reasons for any deficit or surplus in that year  Economic and Financial policy of the coming year, that is, taxation proposals, prospects of revenue, spending program and introduction of new schemes/projects.

EXPENDITURE  

   

Art. 112(2): Govt. spending is of two types – Charged Expenditure and Other Expenditures charged on Consolidated Fund of India. Art. 112(3): Charged Expenditure charged –  Emoluments (salary), Allowances of President and other expenditure related to his Office.  Salary and allowances to the Chairman and the Deputy Chairman of the RS, the Speaker and the Deputy Speaker of the LS.  Debt charges including interest, sinking fund charges (a fund formed by periodically setting aside money for the gradual repayment of a debt), redemption charges (commission collected by the company on shares of govt. when sold out) and any other expenditure related to loans.  Salary, allowances and pensions of Supreme Court Judges and pensions of High Court Judges.  Salary, allowance and pension of CAG.  Any sum required to satisfy any Judgment, decree or award of any court or arbitrary tribunal.  Any other expenditure so declared by Constitution or Parliament of India. Art. 113(1): Charged Expenditure cannot be voted but can be discussed. Art. 113(2): Other expenditure shall be submitted in the form of demand for grants to the LS, which can accept, reduce or reject the amount of demand. Art. 113(3): No demand for grant shall be made except on the recommendation of President. Art. 114(1): Once the demand for grant is passed by LS, a bill is introduced to appropriate money from the Consolidated Fund of India. Appropriation Bill:

 Include Charged Expenditure and the grants made by the LS.  Can’t be amended to change the demand for grants or any other expenditure.  Art. 115: The President shall lay another statement of estimates to seek supplementary, additional or excess grants.  Supplementary: It is raised when the money provided in the budget for any particular service is found insufficient.  Additional: It is raised when the ‘new service’ is to be introduced which is not mentioned in the Annual Budget Statement for that year.  Excess: It is raised when the Excess money is already paid to a particular service, exceeding the allotted money for the particular service for that financial year. Now Govt. may be alleged of Corruption. So, approval of Public Account Committee is required to present this grant in Parliament.  However, first two grants are sought during the same financial year but the third one should be sought at the end of financial year, after the expenditure is actually made. PAGE 92

 

 

Art. 116: LS shall have power to make vote on account, vote of credit and exceptional grant. Vote on Account: Budget Bill is normally introduced in third week of February and passes in month of May but the financial year ends on 31st March and to carry out the operations of govt. smoothly for the months of April and May the parliament gives the ‘Advance amount’ to govt. Generally vote of account is granted only for two months but in the year of general elections, it is granted for four to five months until New Budget Bill get passed by new govt. Vote of Credit: It is given to meet an ‘unexpected demand’ like Natural calamities. The govt. also cannot state properly in the annual financial statement. This is a kind of blank cheque. Exceptional Grant: It doesn’t form any part of current service of any financial year. It is made for some particular ad special purposes.

INCOME  

Direct and Indirect Taxes form major chunk of govt.’s income. According to Art. 265, No tax shall be levied or collected except by the Authority of Law made by the Parliament. Parliament can impose taxes on the subjects mentioned in Union List – 246(1), Concurrent List – 246(2) and Residuary Matters – 248(2).

BUDGET SESSION 1. 2.

Budget is a Money Bill and it is voted in LS and only discussed in RS. Budget is enacted in the Budget Session and it is the first and longest session of Parliament.

Procedure 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

11. 12. 13.

In India, Budget is presented in two parts – Railway Budget and General Budget. Railway Budget is introduced in the third week of February by the Railway Minister in the Lok Sabha. General Budget is introduced by the Finance Minister in the Lok Sabha on the last working day of February along with the Speech. After the speech in the LS, the Budget is laid before RS, which can only discuss it and has no power to vote in the demand for grants. General Discussion begins after the presentation. 3 to 4 days are allotted for discussion on Budget. No voting and no cut motions. Finance Minister replies (to all questions and criticisms) at the end of discussion. After this Houses are adjourned for 3 – 4 weeks. During this gap, all the Demand for grants are submitted to 24 Departmental Standing Committees. Every committee examines and prepares a detailed report on the demand for grants which is concerned to that particular department and are submitted to both the houses for consideration. Voting on Demand for Grants:  Only LS can vote and that too voting is for Other Expenditure not for Charged Expenditure.  General budget contains 109 grants (103 Civil and 6 Defense) and Railway Budget contains 32 grants. Total: 131 grants  Total 26 days are given for discussion and voting on demand for grants.  At this stage Cut Motions (Policy Cut, Economy Cut and Token Cut) can also be brought by the opposition to reduce or refuse the amount demanded in the grant. LS tries to discuss and pass each demand separately, but it is rarely able to do this. So on the last day all remaining demands are put to vote, irrespective of whether they are discussed or not. This is called “Guillotine”. Passing of the Appropriation Bill becomes Act after assent of the President. Passing of the Finance Bill: Unlike Appropriation Bill, the amendments (seeking to reject or reduce the tax) can be moved in the case of Finance Bill. According to the Provisional Collection of Taxes Act of 1931, the Finance Bill must be enacted (passed and assented) within 75 days. Thus Finance Act legalizes income side.

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14. Summary: Introduction – Speech – General Discussion – Departmental Committees – Voting – Guillotine – Appropriation Bill – Finance Bill Funds 1.

2.

3.

Consolidated Fund of India (Art. 266) a) All revenues received by the Govt. of India b) All Loans raised by the Govt. by the issue of Treasury Bills (type of bonds) c) All money received by the Govt. in repayment of loans from others who borrowed from us Public Account of India (Art. 266) – All other public money other than those which are added to the CFI received on behalf of the Govt. of India. a) Provident (Pension) Fund deposits (Now, 8.1% interest. Tax free. Max. limit is 1.5 lakhs) b) Judicial Deposits c) Savings Bank Deposits d) Departmental Deposits Contingency Fund of India (Art. 267) into which amounts determined by law are paid from time to time. This fund is placed at the disposal of President, and he can make unforeseen expenditure pending its authoritarian by the Parliament. The Fund is held by Finance Secretary on behalf of him.

MULTIFUNCTIONAL ROLE OF PARLIAMENT 1. 2. 3. 4. 5. 6. 7.

Legislative: Union List, Concurrent List, State List (on RS, NE, SE, 2 or more States, International Treaty) and Delegated Legislation (rules and regulations are framed the Executive to the Skeletal Act and put before Parliament) Executive: Parliament exercises control over Executive through Question hour, Zero hour, half-an-hour discussion, motions, rejecting money bill etc. Financial: Budgetary Control and Post-budgetary Control Constituent: Amendment Powers Judicial: Impeachment of President, removal of Vice-President, Judges of SC, HC, Chief Election Commissioner, CAG and can punish its members or outsiders for the breach of its privileges or its contempt (disrespect) Electoral: Election of President, VP, Speaker, Deputy Speaker, Deputy Chairman Others: Discusses various issues of National and International importance, approves all 3 types of Emergencies, creates or abolish State councils, increase or decrease the area or boundaries of States etc.

POSITION OF RAJYA SABHA Equal Status with LS 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Ordinary Bills Constitutional Amendment Bills Financial Bills Election and Impeachment of President Election and Removal of VP and it alone can initiate the process. (RS – Special Majority, LS – Simple Majority) Recommendation to President to removal of Chief Justices of SC and HC, Election Commissioner, CAG. Approval of Ordinances by President. Approval and Proclamation of 3 types of Emergencies by the President. PM/Ministers can be from LS or RS Consideration of Reports of Constitutional Bodies – Finance Commission, UPSC, CAG etc.

Unequal Status with LS 1. 2. 3. 4.

Money Bill Finance Bill (I) can only be introduced in LS Final power to decide whether it is Money Bill or not is vested with Speaker of LS. Joint Sitting – Presiding Officer – Speaker PAGE 94

5. 6. 7.

Due to LS strength, mostly it wins during Joint Sitting A resolution for discontinuance of the National Emergency can be passed only by the LS not by the RS. Cannot remove the Council of Ministers by passing a No-confidence Motion.

Special Powers of RS 1. 2.

It can authorize the Parliament to make a law on a subject enumerated in the State List (Art. 249) It can authorize the Parliament to create new All-India Services common to both the Centre and States (Art. 312)

PARLIAMENTARY COMMITTEE  

Parliamentary Committees are appointed or elected (sometimes expert MPs are part of Committee and elected by the Proportional Representation) by the House or nominated by the Speaker or Chairman. It shall submit its report to the House or Speaker/Chairman.

Why is it required?       

Work load of Parliament. Lack of expertise in Members of Parliament. Avoid the glare of publicity, which accompanies sessions of Parliament. It acts as a Cooling Chamber. Members of small parties also get due representation (proportional representation). Training ground for future Ministers. Scrutinizing Bills, Subordinate legislations, Demand for grants and Govt. assurances.

Types of Committees 



Ad hoc committee: These are temporary committees constituted to serve specific purpose and dissolved after the purpose is served.  Select Committees: These are appointed to scrutinize (review) the particular bill and give the report on various aspects and provision of the bill. E.g.: Land acquisition bill, Real Estate Bill are some of the recent bills on which select committee was formed. RS sent Aadhar Bill to Select Committee.  Joint Parliamentary Committees: These are kind of Inquiry Committees appointed jointly by both the Houses, to report on a particular matter such as Office of Profit or Railway Convention Committee. E.g.: 2G Spectrum scam, Bofors gun deal, Bank Security Scam are some of the famous cases. Standing Committee: These are permanent committees whose members change every year but their structure remains same.  Departmental Standing Committee: 1. In 1989, the Departmental Standing Committees were established for the Department of Agriculture, Environment and Forest, Science and Technology. 2. In 1993 this was upgraded to 17 Departmental Committees and in 2004, 7 more committees were established. 3. These are Joint Committees consisting of 21 Members from LS and 10 Members from RS – 31 members (Before re-structuring, 30 from LS and 15 from RS). These are nominated by the Speaker and Chairman. Functions: 1. 2. 3. 4.

To consider demand for grants of respective ministry/department. To examine bills referred by the Presiding Officer. To consider Annual reports of Ministries. To consider any Policy documents referred by Presiding Officer.

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

Ethics Committee: 1. Standing Committee of Ethics in RS was formed in 1997. 2. Standing Committee of Ethics in LS was formed in August 2015. (In 2000 LS established its First Ethics Committee as Ad hoc committee and from 2000 – 15 every year LS establishes it as Ad hoc). 3. Ethics Committee function to uphold the Standards of Parliament. 4. This has 15 members in LS (Present Chairman: Lal Kishan Advani) and 10 members in RS (Present Chairman: Dr. Karan Singh) – 35 members. 5. RS has provided a ‘Register of Members Interest’, where MPs have to declare their interests in 5 Categories – Remunerative Directorship, Remunerated Activity, Majority Shareholding, Paid Consultancy and Professional engagement. 6. LS does not maintain such register of Members’ Interests and apart from disclosing their assets and liabilities to the House. MPs are not obliged to declare other financial interests that might be direct or indirect conflict with their role as public servants. 7. RS’s Ethics Committee acts both on complaints as well as take up issues suo-motu (selfcognizance: takes up the issue on its own). LS’s committee acts only on complaint either by any Member of the House or by general public. 8. In addition to that, Members are required to declare any financial interest on an issue that is being debated in the House or under consideration by any other Standing Committee and hence refrain from taking part to avoid conflict of interest. 9. Vijaya Mallya’s Case (RS) and Sting Operation of TMC MPs (LS) have been referred to Ethics Committee. Functions: 1.



Formulate the ‘Code of Conduct (list of dos and Don’ts)’ for Members and to oversee the Moral and Ethical conduct of the Members. 2. To examine the cases referred to it with reference to ethical and other misconduct of the Members. Financial Committee:  These are constituted to secure accountability of Govt. to the Parliament in Financial matters.  Ministers cannot be Members of this committee.  They do not examine the policies passed by the Parliament.  Their examination is of Postmortem effect.  Their recommendations are not binding on Govt. (Govt. should give reasons for not accepting the recommendations).  Their Members are elected. Estimate Committee

1.

It was established in 1950 on the recommendation of John Mathai (then Finance Minister).

2.

Consists of 30 members of LS.

3.

It makes the detailed examination of Budget estimates.

4.

Report on improvements in organization, improve efficiency or administrative reform, consistent with the policy underlying estimates may be

1.

2.

3.

4.

Public Account Committee It was established in 1921 under the provision of Govt. of India Act 1919.

Committee on Public Undertaking 1. It was established in 1964 on the recommendation of Krishna Menon (then defense minister) Committee.

It consists of 15 members of LS and 7 members of RS – 22

2.

It consists of 15 members of LS and 7 members of RS – 22

Since 1967 member of Opposition are appointed as the Chairman.

3.

It examines the Appropriation account (spending), Finance account (tax collected) and other accounts laid before Parliament. It

It examines the report and accounts of Public Sector Undertaking (PSU) as well as reports of CAG on PSUs.

4.

It examines the working of PSU PAGE 96

effected. 5.

Suggest the alternative policies in order to bring out the efficiency and economy in administration.

6.

Examine whether the money is well laid out within the limits of the policy implied in the estimates.

7.

is assisted by CAG. 5.

It examines whether the money has been spent as authorized by the Parliament and for the purpose for which it is granted.

6.

If excess money has been spent, then it examines the circumstances which lead to exceed and gives its recommendations.

7.

Apart from these technical irregularities, it also brings out evidence of waste, corruption, inefficiency or operational deficiency in the financial affairs.

Suggest the forms in which the estimates shall be presented to the Parliament.

and reports on aspects such as autonomy, efficiency, productivity, generation of employment etc.

MOTIONS AND RESOLUTIONS Parliament is not only a Legislative body but also Deliberative and Representative Body. As a Deliberative body its duty is to discuss, debate and argue on various issues of National and International importance. As a Representative body its duty is to express opinion on behalf of people. So both these jobs are done by Motions and Resolutions. Motion is a resolution in the state of a proposal; in other words, a resolution is a motion that has been approved. When a motion has been passed and adopted by a majority of the members present and voting, it becomes a resolution.    

Motions (Substantive (main), Substitutive and Subsidiary (relate to other motions or follow up on some proceedings)) unlike questions can be admitted on the very short notice, sometimes on the same day. Motions help in discussing matters of urgent public importance. Through Motions House and its members give their views and opinions on various issues. Motions like Censure motion and No-confidence motion, also test the govt.’s strength in the House of People.

All the Resolutions are Substantive Motions but all Motions are not Resolutions.   

Resolutions are compulsorily voted, whereas not all motions are voted. Resolutions are used to express opinion of the Houses or sometimes to recommend or direct govt. to take certain action. Resolutions are also passed to approve certain treaties, stand or action of govt. (generally if the treaty is related to Land acquisitions).

Calling Attention Motion      

It is an Indian innovation in Parliamentary procedures started from 1954. It is used to Call Attention of Minister to a matter of urgent public importance. In this motion, debates aren’t conducted, but questions are asked by members to Minister. After Minister’s reply, clarification questions can be asked by members. Subject matter of this motion is usually found from Newspaper reports, however sometimes private information of member from other sources too form the base. The main motive of this device is to extract authoritarian statement or some uncomfortable promise from the govt. Working of govt. can be criticized or exposed by members through this motion. PAGE 97

Motions only in Lok Sabha Adjournment motion 1.

2. 3.

4.

5.

This motion is moved to discuss a factual, definite matter of urgent public importance but it shouldn’t be Sub-judice (which is under judicial consideration and therefore prohibited from public discussion). This motion when admitted, regular business of the house is interrupted (because all other work get adjourned). At least 50 members’ support is necessary to initiate this motion. The matter shouldn’t have been discussed earlier in the House and should be concerned only with the Working of the Govt. of India. However sometimes issues falling in the State Jurisdiction are also considered, if it is related to atrocities on weaker sections. Govt. doesn’t fall because of its passage, but it is censured.

1.

No Confidence motion It is brought to test the strength (majority) of the govt. in LS. (Art.75 says Council of Ministers are collectively responsible for LS)

2.

No reasons needs to be given to initiate this motion.

3.

At least 50 members’ support is necessary to initiate this motion.

4.

If this motion is passed, the govt. shall resign.

5.

Lok Sabha MAY be dissolved if PM recommends it or no party is in position to form Govt.

1.

Censure motion It is brought to censure (disapproval) the govt. for certain policies or actions.

2.

Specific reason needs to be given to initiate this motion.

3.

This motion can be brought against individual minister or the entire Council of Ministers.

4.

Passage of this motion doesn’t automatically results in the resignation of Govt.

Cut Motion    

It can only be introduced in Lok Sabha. Can be brought by Opposition during the passage of demand for grants. Three types: Disapproval of Policy Cut, Economy Cut and Token Cut. Cut Motions are of symbolic value, they cannot be passed since Govt. has majority in LS. If cut motion is passed then Govt. doesn’t automatically fall, but it is a signal that govt. lost its majority in the LS.

Short Duration Discussion 

 

It is also a kind of motion under which a discussion conducted for two and half hours. Usually matters discussed under this are already raised in the Question Hour (Because only short questions shall be asked and factual answer can be given. So if any MP or Chairman or Speaker feels on this issue an elaborated discussion is required then it is raised in Short Duration Discussion). Two such discussions are conducted every week. It is started from 1953 and main motive of this device is to initiate discussion on the matter of urgent public importance. Matter must be urgent, concerned primarily with working of Union Govt. and shouldn’t contain unsubstantiated (without any proof) allegations.

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PRESIDENT [A 52 – A 78] [Part V]  

Executive: President, VP, PM, Council of Ministers, Attorney General of India He is the Head of the State, First citizen of India, acts as the symbol of unity, integrity and solidarity of the Nation.

ELECTION OF THE PRESIDENT The President is not elected directly by the people but by the members of Electoral College consisting of – MPs of both houses, MLAs of all State Legislatures, UTs of Delhi and Puducherry. This does not consists of Nominated members of any body (LS, RS, Assemblies and Councils) because they do not represent the people of India. Vote value of an MLA = Vote value of an MP = Electoral Quota =

𝑇𝑜𝑡𝑎𝑙 𝑃𝑜𝑝𝑢𝑙𝑎𝑡𝑖𝑜𝑛 𝑜𝑓 𝑡ℎ𝑎𝑡 𝑆𝑡𝑎𝑡𝑒 𝑇𝑜𝑡𝑎𝑙 𝑛𝑜.𝑜𝑓 𝑒𝑙𝑒𝑐𝑡𝑒𝑑 𝑀𝐿𝐴𝑠 𝑖𝑛 𝑡ℎ𝑎𝑡 𝐴𝑠𝑠𝑒𝑚𝑏𝑙𝑦

𝑥

1 1000

𝑇𝑜𝑡𝑎𝑙 𝑉𝑎𝑙𝑢𝑒 𝑜𝑓 𝑣𝑜𝑡𝑒𝑠 𝑜𝑓 𝑎𝑙𝑙 𝑀𝐿𝐴𝑠 𝑜𝑓 𝑎𝑙𝑙 𝑆𝑡𝑎𝑡𝑒𝑠 𝑇𝑜𝑡𝑎𝑙 𝑛𝑜.𝑜𝑓 𝑒𝑙𝑒𝑐𝑡𝑒𝑑 𝑀𝑃𝑠 𝑜𝑓 𝑃𝑎𝑟𝑙𝑖𝑎𝑚𝑒𝑛𝑡 (776)

𝑇𝑜𝑡𝑎𝑙 𝑛𝑜.𝑜𝑓 𝑣𝑎𝑙𝑖𝑑 𝑣𝑜𝑡𝑒𝑠 𝑝𝑜𝑙𝑙𝑒𝑑 2

+1

Constitution makers chose indirect elections because –  

President is not given any real power. Direct elections are very costly, time and energy consuming due to vast size of electorate.

The expression ‘proportional representation’ in the case of Presidential elections is misnomer and could better be called a ‘preferential or alternative vote system’. Similarly, the expression ‘single transferable vote’ was also objected on the ground that no voter has a single vote; every voter has plural votes. Art.57: He is eligible for re-election for any number of times.

QUALIFICATION According to A 58(1), no person shall be eligible for election as President, unless he is   

A citizen of India Has completed 35 years of age Is qualified for election as a member of LS (i.e. if the Parliament may by law states that for contesting in the election of LS, graduation must be completed then for contesting for President also must have completed Graduation)

OATH   

To faithfully execute the Office To preserve, protect and defend the Constitution and the law To devote himself to the service and wellbeing of the people of India

DISQUALIFICATION    

Art. 58(2): he shall not hold any ‘Office of Profit’. A 56(1) (a): he can resign from his office by sending his resignation to VP (Chairman of RS). A 56(2): he should also acknowledge about his resignation to the Speaker of LS. A 54(1) (b): he can be impeaches for the violation of Constitution, by impeachment procedure.



Impeachment Procedure:  According to Art. 61(1), impeachment procedure can be initiated in any house of Parliament.

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     

A 61(2) (a): A proposal signed by 1/4th members of the total membership of the house, is moved after 14 days’ notice. A 61(2) (b): Such resolution has been passed by a majority of not less than a 2/3rd of the Total membership of House. A 61(3): Once the resolution is passed by either house then the other house can investigate the matter, in which President would also appear or to be represented. A 61(4): If the other house too passes the same resolution, as a result of investigation, with a majority of not less than 2/3rd of the total membership, then the President stands impeached. Impeachment is a Quasi-Judicial procedure in Parliament. The nominated members of either house can participate in the impeachment process thought they don’t take part in election of president. State legislatures do not take part in the Impeachment even though they participate in elections.

POWERS Legislative Powers 



 

Art. 111: When a Bill which is not a Money Bill is passed by both the Houses of Parliament, then President may either assent the bill, may withhold the assent the bill or return the bill for reconsideration of Parliament. If it again sent the bill to President with or without the amendments, then President would have to assent the bill. When a bill passed by the State Legislature, reserved by the Governor for President’s assent, the President may give his assent, may withhold or direct the Governor to return the bill. If Assembly again sent back with or without amendment, it is not obligatory for the President to give his assent. He summons and prorogues the sessions of Parliament and dissolves the LS. Some types of bills are introduced only after his recommendation. For e.g. Bills involving expenditure from the CFI.

Ordinances:      

   

A 13(3) (a): Ordinance is LAW (temporary) – not parallel power but complimentary power. A 123(1): President can pass an Ordinance, if Parliament is not in session. A 123(2) (a): Every such Ordinance will expire within the 6 weeks of re-assembly of Parliament, unless approved by both the Houses of Parliament. Maximum life of an Ordinance can be 6 months and 6 weeks (maximum gap between sessions of RS and LS) Art. 123(3): President cannot issue an Ordinance on those subjects on which Parliament has no right to enact a law. In Cooper Case of 1970, the SC held that President’s satisfaction can be questioned in a court on the ground of malafide. 38th CAA, 1975 – President’s satisfaction is final and beyond Judicial Review. 44th CAA, 1978 – President’s satisfaction is justiciable on the ground of malafide. This power is not discretionary, he can promulgate or withdraw only on the advice of Council of Ministers headed by the Prime Minister. Ordinance can be retrospective (it may come into force from a back date). It may modify or repeal any act of Parliament or another Ordinance. It can amend a Tax law also. But it cannot be issued to amend the Constitution. Although there is no restriction on the President’s power of re-promulgation of ordinance (any no. of times), but according to the SC Judgment in D.C.Wadhwa V. State of Bihar of 1987, successive re-promulgation of Ordinance with the same text without any attempts to get the bills passed by the Legislature would amount to violation of Constitution and the re-promulgated ordinance is liable to struck down.

Executive Powers  

All Executive action of GOI are taken in his name. In 1971, the SC held that ‘even after the dissolution of LS, the council of ministers does not cease to hold the office. Art.74 is mandatory and President cannot exercise the executive power without the aid and advice of the council. PAGE 100

Any exercise of executive power without the aid and advice will be UNCONSTITUTIONAL as being violative of A 74’ President makes rules for the transaction of business of Govt. of India, and allocate business among Ministers (Allocation of Business Rules) (and Jurisdiction of every Minister is fixed). President can seek any information about Administration and law to be introduced in the Parliament (it is the duty of the PM to provide the information asked by the President). If President directs the PM that a decision taken by a Minister needs to be considered by the Council of Ministers, to do so (as the Council of Ministers are collectively responsible). After the decision taken by the Council of Ministers collectively, then the decision is sent to president and the President shall accept that decision whatever it may. All important appointments such as that of the Attorney General of India, Governors of States and Lieutenant Governor of UTs, Judges of SC and HC, CAG, Chairman and Members of Election Commission of India, UPSC, Ambassadors in diplomatic missions overseas etc., are appointed by him. President appoints various constitutionally and legally mandated commissions such as Finance Commission, National Human Rights Commission and National Commission for SC, ST and OBC and also takes action on recommendations and tables their recommendations on the table of Parliament, along with action taken report.

  





Financial Powers     

Money Bills can be introduced only with his prior recommendation. He causes to be laid before the Parliament the Annual Financial Statement (Budget) through Finance Minister. No demand for grants can be made except on his recommendation. He can make advances out of the Contingency Fund of India to meet any unseen expenditure. He constitutes a Finance Commission after every 5 years to recommend the distribution of Revenues between the Centre and the States.

Judicial Powers    

He appoints Judges of SC and HC. He can seek advice of SC on any question of law or fact under Art.143. But the advice given the SC is not binding. Grant pardon (forgive), reprieves, respites, remissions of PUNISHMENTS. Suspend, remit or commute the SENTENCE. o In all cases where the punishment or sentence is by a Court Martial o In all cases where the punishment or sentence is for an offense against a Union law o In all cases where the sentence is a sentence of death

Diplomatic powers  

The international treaties and agreements are negotiated and concluded on behalf of the President (by Executive). However, they are subject to the approval of the Parliament. He represents the India in International forums and affairs sends and receives diplomats.

Military Powers   

He is the Supreme Commander of the Defense forces of India. He appoints the Chiefs of the Army, the Navy and the Air Force. He can declare war or conclude peace, subject to the approval of Parliament.

Emergency Powers: In addition to the normal powers, the Constitution confers extraordinary powers on the President to deal with the 3 types of Emergencies – NE (A 352), President’s Rule (A 356 & Art.365) and Financial Emergency (A 360).

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VETO (REJECT) POWER 

24th CAA of 1971 made it obligatory for the President to give his assent to a Constitutional Amendment Bill. No veto power to President in respect to a Constitutional Amendment Bill.

Absolute Veto To withhold his assent to a bill passes by the Parliament. The Bill then ends and does not become an act. Usually, this veto is exercised in the following cases:   

Private members’ bills (passed in the Legislature but Council advices the President not to give his assent) Govt. Bills when the Cabinet resigns (after the passage of the bills before the assent by the President) and the new cabinet advices the President not to give his assent to such bills. For e.g.: o In 1954, Dr.Rajendra Prasad withheld his assent to the PEPSU Appropriation Bill. The bill was passed by the Parliament when the President’s rule was in operation in the State of PEPSU (Patiala and East Punjab Sates Union). But, when the bill was presented to the President for his assent, the President’s rule was revoked. o In 1991, R Venkataraman withheld his assent to the Salary, allowances and pension of Member of Parliament (Amendment) Bill. It was passed before the day of dissolution of LS without obtaining the prior recommendation of President.

Suspensive Veto   

Returning the bill (other than Money Bill) for reconsideration to the Parliament. If the bill is passed again with or without the amendments then President shall give the assent to it. This means that the Presidential veto is overridden by a re-passage of the same ordinary majority.

Pocket Veto  

He neither ratifies nor rejects nor returns the bill, but simple keeps the bill pending for an indefinite period. For e.g.: In 1986, President Zail Singh exercised the pocket veto with respect to the Indian Post Office (Amendment) Bill (imposed restrictions on freedom of press, so it was widely criticized). After 3 years, in 1989, the next President R.Venkataraman sent the bill back to the Parliament, but the new govt. dropped the bill.

PARDONING POWER (A 72)



 

 Punishment or sentence is for an offense against a Union Law  Punishment or sentence is by a Court Martial  Sentence is a sentence of death The Pardoning power is Independent according to Constitution but SC gave a verdict that President’s and Governor’s decision comes under small window of judicial review in Epuru Sudhakar Case. If and only if the president’s decision is arbitrary, irrational, malafide or discriminatory. Grant pardon (forgive), reprieves, respites, remissions of PUNISHMENTS. Suspend, remit or commute the SENTENCE.  Pardon: Completely forgiven  Reprieve: Temporary suspension of sentence (especially that of death)  Respite: awarding less sentence due to some special fact like physical disability or pregnancy  Remission: Reducing period of sentence without changing its character  Commutation: Changing one punishment to another lighter form (death sentence to rigorous imprisonment)

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VICE-PRESIDENT   

VP occupies the Second highest Office in the Country. He is next to the President in the hierarchy. He is modelled in the lines of American VP.

ELECTION   

Elected by the Members of both the houses of Parliament (both elected and nominated). No participation of State Legislatures. Same as Election of President.

QUALIFICATIONS For contesting the election of VP    

Citizen of India Age of 35 years He should be qualified for the election as a member of the RS. He should not hold any office of profit under Union, State, Local authority or any other public authority.

Removal: Resolution passed by the RS with Effective majority (total membership – vacant seats) and agreed by the LS (simple majority)

FUNCTIONS   

Chairman of RS. Acting like a President when office falls vacant due to resignation, removal or death and also during absence for some days. Maximum period of acting like a President is 6 months.

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THE STATES [A 152 – A 237] [PART V] GOVERNOR   

Every State will have a Governor – Appointed by the President. One person can be appointed as Governor for more than one state (A 153) Executive power of State vested in the Governor (A 154) – Executive power extend to matters in respect of which state legislature has power to make laws (List II of 7th Schedule).

QUALIFICATIONS    

Citizen of India Completed 35 years of age Shall not be a member of either houses of parliament or house of a state legislature, and if such a member is appointed as Governor, deemed to have vacated that seat in that house. Should not hold any ‘Office of Profit’

OATH   

Oath is under A 159 (not 3rd Schedule) Administered by Chief Justice of HC or Senior most judge in his absence I, … (name), do swear in the name of God/ Solemnly affirm, that I will faithfully execute the Office of Governor (or discharge the functions of the Governor) of … (name of State) and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service of well-being of the people of …

APPOINTMENT AND TERM     

Appointed by President under his seal. Holds Office during ‘pleasure’ of President – not similar to impeachment requirements of President, shows unitary bias of our Constitution. General term of Office – 5 years from date of appointment, continues till successor enters office. Governor may resign by submitting resignation to President. Emoluments and Allowances, which shall not be diminished during his term of Office, as determined by Parliament by law.  At present emolument of INR 100,000 as per act of Parliament.  Expensed charged on the ‘Consolidated Fund of State’ but not on the Union.  If for more than one state, allocated amongst states by order of the President – don’t get two salaries.

ISSUES WITH RESPECT APPOINTMENT & REMOVAL Original draft of Constituent Assembly was for elected Governor. However replaces for following reasons –     

Avoiding cost and other issues of one more election which country cannot afford. Friction between Elected Governor and Elected Chief Minister – Constitutionally, exclusive powers vests with the Council of Ministers Though appointed by President, Union control over States – Unitary Bias Arguments advanced against nomination too in Constituent Assembly but finally settled for nominated Governor. Sarkaria Commission report – Recommendation for appointments of Governor  Should be eminent person from outside State (only followed this recommendation)  Must not have participated in Active politics for some time before appointment. PAGE 104

  

Should be appointed in consultation with the CM, VP and Speaker of LS. Tenure should be guaranteed except under compelling circumstances, should be given an opportunity of being heard, in case of termination – reasons to be laid before Houses of Parliament Governor should not eligible for any appointment to Office of Profit under Union or State Govt. – only second term as Governor or VP of India

In reality – whims and fancies of Central Govt.   

2004 – replacements objected by the BJP 2014 – same was happened after it came to power Active politicians, Career Bureaucrats, Army General and most recently – even retired CJI has been appointed as Governor

POWERS  

  

 

Executive head of the State; power extends to all matters with respect to which State can legislate. Though Council of Ministers to aid and advice the Governor, A 163 is different from A 74.  No use of word ‘shall’ in A 163  Discretionary Powers Right to nominate one member of Anglo-Indian Community (A 333) Right to nominate 1/6th members of Legislative Council having special knowledge in literature, science, art, cooperative movement and social service. (with the aid of Council of Ministers) Part of State Legislature; following powers –  Right to address and send messages to the House(s).  Right to summon, prorogue the houses(s) and dissolve Legislative Assembly.  Laying the Budget and demand for grants before the House(s). Emergency Powers:  A 356 and Governor’s report (not by the aid of Ministers, against whom he will write) Pardoning Power (A 161) (small offences not major):  Grant pardon (completely forgiven), reprieves (temporary suspension), respites (awarding less sentence), remissions (decrement of amount of sentence) of PUNISHMENTS  Suspend, remit or commute (changing one punishment to another) the SENTENCE  Any person convicted of any law relating to a matter to which the executive power of State extends only.  This power is NOT ABSOLUTE. Both the President and Governor are bound by the advice of their respective Councils of Ministers and hence the exercise of this power is of an executive character.  Therefore, this power of both Governor and President’s mercy comes under judicial review. (not provided by the Constitution but in Epuru Sudhakar V. State of AP, SC has given a small window of Judicial review) President Pardon Power (A 72)

Applicable to Court-Martial Applicable to where Executive power of Union extends Pardon (set free) even for death sentence

Governor’s Pardon Power (A 161) Not applicable (only to civilians) Applicable to where Executive power of State extends No power of pardon for death sentence; however can suspend or commute a sentence of death (which can be a life sentence)

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

Discretionary Powers (A 163):  The President shall act as per the advice of the Council of Ministers and has no discretionary powers whereas the Governor has the discretionary powers under A 163.  A 163: There shall be a Council of Ministers to aid and advice the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion.  6th Schedule – Governor of Assam, in his discretion, determines amount payable by State of Assam to district council as royalty for minerals.  A 239(2) – If President appoints Governor of a State as Administrator for an adjoining UT then he acts in his discretion for that UT.  Special responsibility – Similar to discretionary powers:  371(2): Governor of Maharashtra and Gujarat – Development of Vidharba and Saurashtra  371 A: Governor of Nagaland – Law and Order maintenance  371 C: Governor of Manipur – Proper functioning of Committee consisting of members elected from Hill areas.  371 F: Sikkim – Peace and equitable arrangement for social and economic development  371 H: Arunachal Pradesh – Law and Order  371 J: Karnataka – Setting up a separate board and allocation of funds for development of Hyderabad – Karnataka region.  Important Discretionary Powers:  A 200:  Veto Power – can withhold his assent to the Bill (Pocket Veto, without any time bound)  Reserve the bill for assent of President:  Compulsory if its derogates power of HC  Discretion, if in his opinion it’s against Constitution.  Recent E.g.: Gujarat govt. bill for making 100% voting compulsory for local elections and penal provisions if not casting vote (violation of A 21); Appointment of Lokayukta Bill. Both are returned by the Governor but finally assented by the new Governor.  Art. 356: Breakdown of the Constitutional Machinery – Report by Governor to President (President’s rule – State Emergency) (not on the advice of Council)  B R Ambedkar wished it would be a dead letter – But imposed 115 times.  Before S R Bommai Judgment in 1994, used on flimsy grounds. But after that case, the Governor’s and President’s decision comes under Judicial Review. Real test for majority must be only in floor of assembly and nothing else like Governor’s thinking or interpretation.  Recent decision in Uttarakhand case by SC ruled that it not only comes judicial review but also reiterated to that position (establishment of previous State govt. to the Executive).  But if State Govt. resigns or defeated, then Governor to use his discretion whether to impose Art.356 or dissolve assembly.  In Centre, no discretion of President – If Cabinet recommends even after defeat in LS, it has to be dissolved.  In States, Governor can impose Presidential Rule even if resigning cabinet recommends dissolution. Recent E.g.: Delhi in February 2014.

ORDINANCE MAKING POWER  



Similar to the Power of President but for restrictions imposed by Constitution itself. If the House(s) is/are not in session, and if there is an urgent need, ordinance can be passed.  Colonial Relic – Ordinance making power of Governor General of GOI Act, 1935; but subject to safeguards and NOT ABSOLUTE. Ordinance lapses within 6 weeks of reconvening of house unless passed as a law. PAGE 106

 

 Instances of re-promulgation of ordinances is common which needs to be checked. But Governor can’t sign an Ordinance which under the Constitution, it enacted as a law would have required the assent of the President. (President has Absolute power of Ordinance but not to the Governor). For e.g.: Any law derogating the powers of HC which is required to be reserved to President’s assent.

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COUNCIL OF MINISTERS [PART VI] 

Real Executive head of the State.

APPOINTMENT        

Chief Minister to be appointed by the Governor. Other Ministers as per the advice of the CM by the Governor. Holds the Office during the pleasure of the Governor. (A 356) CM during the pleasure of the Governor and Council during the pleasure of the CM. Collectively responsible to the State Legislative Assembly. Strength of the Council should not be more than 15% strength of the Assembly. Any member appointed minister, if not already member, should become member of either house within 6 months. Oath of Office and Secrecy as per 3rd Schedule. (Only Oath of President and Governor are in Constitution and remaining oaths of any person is under 3rd Schedule)

DUTIES OF CM W.R.T. GOVERNOR (A 167)   

Communicate to the Governor, all decisions of Council of Ministers. Provides such information as called for by the Governor. If Governor directs that a decision taken by a Minister needs to be considered by the Council of Ministers, to do so.

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STATE LEGISLATURE [Part VI] UNICAMERAL AND BICAMERAL State Legislature, consisting of Governor and      

8 States of AP, Bihar, MP, MH, KA, TN, TS and UP having two houses – Assembly & Council. MP and TN – No notification of date issued and no council exists in fact. Assam and Odisha may have one in near future. J & K has also Council as per its own Constitution. All other states have One House – Legislative Assembly Legislative Council can be formed/abolished by an Act of Parliament after a resolution is passed by a State’s Legislative Assembly with ‘Special Majority’ – Majority of Total membership and should be greater than 2/3rd of members present and voting.

COMPOSITION OF ASSEMBLY   

Each State to have not less than 60 or not more than 500 territorial constituencies to be filled by the direct election.  Goa, Sikkim, Mizoram, Puducherry have less than 60 seats through Act of Parliament. One member from Anglo-Indian Community may be appointed by the Governor (A 333). Important years for purpose of number of constituencies and delimitation:  Till first census after 2026 published – in effect 2031 census which will be published somewhere around 2035 (depends on our population explosion)  Till then no change in number of constituencies as determined by census of 1971  Till then no requirement of constituencies as determined by 2001 census – the recent delimitation exercise carried out few years back.

COMPOSITION OF LEGISLATIVE COUNCIL  



Total number of MLCs shall be 1/3rd of the strength of Assembly of that State subject to a minimum of 40. To be elected/nominated as follows:  1/3rd elected by the Members of Municipalities, District boards and Local authorities.  1/12th to be elected by the Graduates for 3 years.  1/12th to be elected by Teachers for 3 years.  1/3rd to be elected by MLAs from those who are not its members.  1/6th to be nominated by the Governor from persons having special knowledge in literature, art, science, cooperative movement and social service. Election through proportional representation by way of single transferable vote.

DURATION 



Legislative Assembly – 5 years, in case of proclamation of Emergency (A 352. Not Art. 356, because defined in A 366) can be extended by 1 year. (352 – Proclamation of Emergency – National Emergency. Art.356 – just breakdown of Constitutional machinery – Presidential Rule) Legislative Council – Permanent body like RS, 1/3rd retire for every 2 years.

QUALIFICATION A Person can be qualified to fill a seat (for nomination) unless he is  

Citizen of India, takes oath according to the form set out in the 3 rd schedule before authorized official of Election. Age – 25 years for Assembly and 30 years for Council PAGE 109



Not disqualified as per any law made by the Parliament or under Art.191 of the Constitution.

VACATION   

No person can be member of both the houses. He shall vacate one of them within time stipulated as per rules. If a person resigns by submitting resignation to Speaker/Chairman, the seat become vacant. If for a period of 60 days is absent without permission of the House, the House can declare the seat vacant.

DISQUALIFICATION 

    

Office of Profit under Union Govt. or State Govt.  Parliamentary Secretary is Office of Profit  President, VP, Governor, Minister of Union or State – NOT OFFICE OF PROFIT  Minister post is not Office of Profit. But MLA/MP is Office of Profit Unsound Mind, Undischarged insolvent, voluntarily acquires citizenship of any other country. Disqualified under law made by the Parliament Disqualified under 10th Schedule – Anti Defection Law Decision on qualification and disqualification to be referred to the Governor who shall consult Election Commission before decision and his decision shall be final. According to Representation of People’s Act:  Section 8 of the Act disqualifies any person convicted of offences as mentioned in that Act and which carries sentence for more than 2 years.  Amendment: Parliament included section 8(4) – giving 3 months’ time to appeal against conviction and no immediate disqualification.  But SC ruled out this amendment as unconstitutional.  Previous Govt. tried to bring the Ordinance but that was shelved.  Present Situation: Disqualifies immediately after conviction. Disqualified to contest for 6 years after the completion of the Sentence.

PRIVILEGES These are similar to the provisions of the Parliament and its members.     



Art.194 deals with the Freedom of Speech and Right in respect of Publication of Members and House collectively (these are the two explicitly mentioned privileges by the Constitution) In respect of all other matters, the privileges shall be the same as House of Commons as they existed at the time of commencement of the Constitution. Broadly speaking any act or omission which obstructs the House or any of its members from performing its functions is considered a breach of privilege. There are two types of Privileges – Privileges to Individual Members:  Freedom of Speech subject to rules framed by the House; unfettered powers otherwise and no restrictions and cannot be made liable in a court of law for what is said in the House.  Freedom from arrest in Civil Cases under CrPC during continuance of the meeting in a committee in which he is a member for 40 days before and after such meeting – not applicable for criminal cases or preventive detention.  Cannot be summoned as witness while the house is in session without the leave of the house (permission of Speaker/Chairman) Privileges of House collectively:  Right to publish debates and proceedings and restrain publication by others.  Right to exclude others from House PAGE 110

 

 

Right to regulate internal affairs and decide on matters arising within the House. Right to punish members and outsiders for breach of its privileges (Privilege motion. Not comes under Judicial review) Instances of breach of privilege have come down in recent years. Still need to codify the privileges to put at rest any arbitrary actions.

PROCEDURE FOR PASSAGE OF BILLS    

In respect of Unicameral Legislature – straight forward, majority of the legislative assembly. In Bicameral Legislature provisions similar to Parliament but Council has limited powers. In reality, the Council does not create any hindrance in passage of bills like RS can as per the Constitution. Hence, procedure in Bicameral Legislature is of more academic in nature.

Procedure in Bicameral Legislature  



Money Bills cannot be introduced in Council; cannot make any amendments and can make only recommendations; maximum hold only for 14 days. Other than Money Bills can be introduced in any house but Assembly’s passage prevails  After assembly passes, the Council can (a) reject bill (b) withhold it for 3 months (c) passes with its own amendments.  Assembly may pass with such amendments as it deems fit  After such passage, council can (a) reject bill (b) withhold it for 1 month (c) passes with its own amendments. After this Assembly passes the bill.  In both the cases, the bill shall be deemed to be passed as passed in the Assembly (Assembly can reject all amendments made by the Council)  Ultimately, Bill as passed by Assembly shall prevail.  Financial Bill also cannot be introduced in the Council but time frame (3 months, 1 months) shall be similar to other bills. No joint sitting of Houses like in Parliament (because Assembly’s version prevails)

Governor’s Assent & Veto  

Governor may provide assent to bill or withhold assent (without any time bound) then it doesn’t become law. Governor can reserve the bill for President  Compulsory if it derogates powers of HC Judge  May provides his assent or withhold his assent  In bill other than money bill, can refer the bill again to the Legislature with a massage ; may provide assent or withhold assent even after passage again Governor’s veto more powerful than President wrt. Union Legislature.

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JUDICIARY OBJECTIVES OF JUDICIARY This is adopted by the Indian Judicial System which is known as Beijing Statement of Independent Judiciary. 1. 2. 3. 4.

All persons live securely under Rule of Law. To promote within the proper limits of the judicial functions, observance and attainment of Human Rights. To administer law impartially among persons and between person and State. Enforcement of FRs because “a right without a remedy is a legal conundrum (confusion or difficult problem) of the most grotesque (deformed or distorted) kind”.

PROCEDURE OF APPOINTMENT – EVOLUTION According Collegium appointments takes place, but it is not provided in Constitution. It is created as a result of 3 Judgments. Why? Judiciary was considered under ‘attack’. 1st Judges Case: S.P. Gupta V. UOI of 1981    

Seniority is not respected. 16 Judges are transferred during Emergency. SC itself in S P Gupta Case (Weak Judiciary) said that Executive has upper hand in appointment of Judges and also according to Art. 124, ‘consultation’ means only consultation not concurrence. Govt. Argued that Judges (Law Minister’s Statements)– a. Not necessary of having Apolitical views (i.e. Judges should have some political views) b. Some knowledge of PUBLIC AFFAIRS is required for appointment c. Having most suitable philosophy (CJI who help us in Courts)

2nd Judges Case: Advocates’ on Record Association Case of 1993   

With intentions to secure the Independence they actually REWROTE the provision of Art. 124 – ‘Consultation’ was interpreted as Concurrence/Confluence of SC/HC Judges (mandatory to CONSULT the CJI). Judgment: Primacy of appointment lay with the CJI and assisted by 2 senior most Judges. But sometimes clash arose between CJI and other Judges. So it lead to 3rd Judges Case.

3rd Judges Case: Presidential Reference Case of 1998 



Advisory Jurisdiction (Art. 143): It is not a case but an opinion delivered by the Supreme Court of India responding to a question of law regarding the collegium system, raised by then President of India K.R.Narayanan, in July 1998 under his constitutional powers. Judgment: 1. Took away the Primacy of CJI and vested powers in Collegium of CJI and 4 senior most judges of SC in matters of appointments of SC and HC Judges, and transfers of HC Judges. Appointments are under President’s hand. 2. Extracted Statement from Govt. – that it would accept the opinion as binding.

National Judicial Appointments Commission (99th CAA, 2014) – Stuck in Advocates’ on Record Association Case, 2015  the CJI, Chairperson, ex officio  two senior Judges of the SC—Members, ex officio  the Union Minister in charge of Law and Justice—Member, ex officio  Two eminent persons to be nominated by the committee consisting of the PM, the CJI and the Leader of Opposition in the House of the People. PAGE 112

Present Situation All the below are appointed by the President. 1. 2. 3. 4.

CJI – must be Senior Most Judge SC Judge – CJI + 4 Senior Most Judges CJ of HC – Governor + CJI + 2 Senior Most Judges of SC HC Judges – Governor + CJI + 2 Senior most Judges of SC + CJ of HC

REMOVAL OF JUDGES The Judges Enquiry Act of 1968 regulates the Procedure –       

The Constitution has not fixed the tenure of a Judge of SC but he can hold his office until he attains the age of 65 years. A Judge of SC can be removed by the President only after an address by Parliament has been presented to him. A Removal motion signed by 100 members of LS or 50 members of RS is to be given to Speaker/Chairman. The Speaker/Chairman may admit or reject it. If it is admitted, then the Speaker/Chairman is to constitute a Threemember committee (CJI, CJ of HV and distinguished Jurist) to investigate into charges. If the Committee finds any guilty of misbehavior or suffering from incapacity then House can take up the consideration of motion. After passing the motion by Special Majority (majority of total membership and more than 2/3rd of present and voting), an address is presented to the President for removal of the Judge. Finally, the President passes an order removing the Judge.

Ad hoc Judge: When there is a lack of quorum of the permanent judges to hold or continue any session of the SC, the CJI can appoint a judge of HC as an ad hoc judge only after consulting with the CJ of concerned HC and consent of President (No consultation with that Judge is necessary). The Judge should be qualified for Appointment (Citizen of India and 5 years of HC Judge, not prescribed any minimum age). Retired Judges as Ad hoc: CJI can request any Retired Judge of SC/HC to act as a temporary Judge of SC. He can only do with the consent of the President and also of the person to be appointed. Constitution declares Delhi as the seat of the SC. But it also authorizes CJI to appoint other place(s) only with approval of President. Procedure of the Court: Constitutional cases or references made by the President under Art.143 are decided by the bench of at least 5 Judges and all other cases are decided by a bench consisting of not less than 3 Judges.

INDEPENDENCE OF SC Federal Court, Highest court of appeal Guarantor of the FRs of citizens Guardian of the Constitution To ensure the above SC’s functioning as impartial and independent, following provisions are provided –  Mode of appointment  Security of Tenure (do not hold office at the pleasure of President)  Fixed service conditions (Salaries, allowances, privileges of Judges, staff and administrative expenses of SC are charged on CFI and not be voted by MPs and are determined from time to time by the Parliament)  Conduct of Judges cannot be discussed (Constitution prohibits, excepts during impeachment)  Ban on practice after retirement (prohibited pleading or acting in any court or before any authority within the territory of India) (ensures that they do not favor any one hope of future favor)  Power to punish its Contempt

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  

Freedom to appoint its staff (CJI can appoint staff and servants of the SC without any interference of executive) Its jurisdiction cannot be curtailed (Parliament cannot curtail but can extend the Jurisdiction of SC) Separation of Judiciary from Executive.

JURISDICTION AND POWERS OF SC “The SC of India has more powers than any other SC in any part of the World” 

 



  

Original Jurisdiction: Disputes Bt. Different units of the Indian Federation. SC has Exclusive (no other court) Original (hears in the very first instance and not by way of appeal) Jurisdiction. The questions of Political nature are excluded from it and by private citizen against Centre or State also. The below mentioned list also excluded –  Pre-constitutional treaty  Inter-state Water disputes  Matters referred to Finance commission Writ Jurisdiction: SC has Original Jurisdiction that an aggrieved citizen can directly go to SC for violation of FRs. Appellate Jurisdiction: Hears appeals against the Judgments of lower courts (HC).  Constitutional Matters: HC certifies that Case involves a substantial (considerable) question of law that requires the interpretation of the Constitution.  Civil Matters: HC certifies that Case involves a substantial question of law of general importance and the question needs to be decided by the SC  Criminal matters: sentenced to death and certifies that the case is a fit one for the appeal to the SC and in 1970, the parliament has enlarged the Criminal appellate jurisdiction of the SC – if the HC has on appeal, reversed an order of acquittal of an accused person and sentenced him to imprisonment for life or more than 10 years.  In the first two cases, an appeal lies to the SC as a matter of right (i.e. without any certificate of the HC). But if the HC has reversed the order of conviction and has ordered the acquittal of the accused, there is no right to appeal to the SC. Advisory Jurisdiction: The President can ask the advice to SC under Art.143 in two categories –  On any question of law or fact of public importance – SC may refuse to give  On any dispute arising out of any pre-constitution treaty, agreement – SC should give the advice.  These advices are not binding on the President. A Court of Record: it has power to record the Judgments, proceedings and acts for the perpetual memory and testimony for legal references. Power of Judicial Review: mentioned below Other Powers:  Disputes in elections of President and VP. In this regard, it has original, exclusive and final authority.  It enquires into the conduct of Chairman and members of UPSC on a reference made by the President. If it finds guilty of misbehavior then it recommends to the President to remove. It is BINDED on President.  It can review its own judgment.  It can transfer a case or appeal to one HC to another.  Its law is binding on all courts in India.

JUDICIAL REVIEW Checking the validity of Law as well as Administrative or Executive Orders based on 3 grounds – 1. 2. 3.

Competence – Union, State Lists Repugnant (in conflict with) to the Constitution Infringes FRs PAGE 114

Judicial Review because of the following –     

Constitution is Supreme (Art. 13, Art. 372(1) – laws which are prior to the commencement are invalid) Division of Power (Art. 245, Art. 246), (Relation bt. Union and States Art. 251 - 254), (Art. 131 - 136), 7th Schedule Written Constitution FRs (Art. 32, Art. 226) Federal Structure (Art. 246)

JR on 9th Schedule: JR on laws placed in 9th schedule after Kesavananda Bharati Case, 24th April 1973 is “allowed”. This verdict is given in I.R. Coelho Case, 2007. Phases of JR 1.

2.

3.

4.

5.

Shankari Prasad V. UOI (1951) Judgment: i. 1st CAA V. Art.31 (Right to property) ii. Parliament can amend Constitution what so ever under Art. 368 iii. Art. 13(2) – Law does not include CAA Sajjan Singh Case (1964) Judgment: i. 17th CAA (acquisition of Estates and place land acquisition laws in Schedule 9) V. Art. 31A (Estates) ii. SC reiterated its stand of Shankari Case iii. Parliament can amend anything under Art.368 iv. Art. 13(2) – Law does not include CAA (this is the interpretation. Later 13(4) was introduced.) Golaknath Case V. State of Punjab (1967) Judgment: i. 1st, 17th, 4th CAA ii. Reversed its earlier judgment – Parliament has no power to take away the FRs iii. Art. 368 is merely the Procedure and No actual power to amend. iv. Power to amend from Art.245 – extent of law making, Art.246, Union List. Indira Gandhi got angry and brought 24th CAA and 25th CAA: i. Changed the title of Art.368 – Power to amend ii. Inserted Art. 13(4) – Defn. of Law does not include CAA and Art. 368(3) – same as 13(4) iii. President SHALL give the assent to CAA Judiciary reacted in KBC Case of 1973: Govt. argued that Parliament has power to amend/change/destroy the Constitution through its amending powers. SC did the balancing act and said Parliament has power to amend any part of the Constitution, even abide FRs but not the extent of destroying the “Basic Structure” – High Judicial Creativity.

Indian SC unlike US SC is not a 3rd Chamber. Discuss. 1.

Constitutionally Indian JR:  Scope of Indian JR is somewhat circumscribed as compared to USA. (mentioned PEL but not explicitly DPL)  FRs not as broad as in USA (Right to Liberty V. Right to Personal liberty) + Reasonable Restrictions  Voluntary Decision of Constitutional Makers as they thought that if all is left for judiciary to interpret then it might act as “Super Legislature”. USA JR:    

Has Due Process of Law (DPL). At times became a ‘Law maker’. Described as Third Chamber. Has been described as “Continuous Constitution Convention” PAGE 115

2.

Judicial Pronouncements USA: Marbury V. Madison Case  Expanded DPL  Administrative and Legislative actions can be reviewed. But in India it is evolved through phases. a) 1950’s  Restricted phase of SC  Reluctant to declare any Parliament act as invalid  Caution and hesitation  1 out of 694 enactments was declared invalid  Shankari Prasad Judgment b) 1960’s – 1970’s (Congress loses in 9 States)  Activist phase  Golaknath Case – peak of this tendency  Told Parliament is creature of Constitution and not to take away FRs  KBC and Menaka Gandhi Case: Judicial Creativity of high order.  These three cases can be taken as: comparable to Law maker, Due process of Law adopted and Public Interest Litigation’s (PIL) – Source of Moral and Psychological Legitimacy. c) 1980’s: PILs as a tool to expand its powers d) Activist Judiciary Criticism:  Over willing to jump into arena of Executives or Legislative Functions  in reality Judicial Activism competes with Traditional Concept (Judiciary as mere Umpire).  Judiciary considering itself as a Catalyst in Constitutional Scheme + Arm of Social Revolution + Activator of Legal Mechanism for SOCIO-ECONOMIC PROGRESS.  Forms of Judicial Activism can be seen from following trends – i. Expansion of Rights ii. Expansion of JR iii. Indiscriminate use of Contempt of Court iv. Over extending rules of Interpretation v. Passing of orders which are Unworkable vi. Excessive monitoring and Rule Making

2 ASPECTS OF JUDICIAL ACTIVISM IN INDIA 

Directions issued by Courts to Govt. authorities for protection of FRs + fulfilment of Public Interests: PILs:     

Bihar under trials - Hussainara Khatoon Case 1979 – first PIL Case Bandhua Mukti Morcha V. UOI 1984 (Bonded Labor Liberation) Asiad Workers Judgment People’s Union for Democratic Rights (PUDR) V. UOI 1982 (Human Trafficking) S.R. Bommai V. UOI 1994 – Art. 356 misused (President’s Rule in States)

Enquiries:    

Jain Hawala Cases SIT Black Money Corruption Cases (2G, Coal etc.) CBI probes under Judiciary PAGE 116

Failure of Administration: 



Shifting of IPL matches from Maharashtra due to Drought. The State Machinery is thinking that Judiciary will take care of issues like these. They are not being responsible. Vacuum created is fulfilled by Judiciary.

Judicial Activism in Interpretation of FRs:    

Right to Equality (Art. 14) Right to Freedom (Art. 19) Right to Life and Personal Liberty (Art. 21) Right to Religious Denomination (Art. 25) (Secularism)

In these issues, there is scope for a Judge to read his PERSONAL PHILOSOPHY into Provisions. So this could be Judge Phenomena rather than Institutional Phenomena. So this should be changed and Strong Robust Institutional Structures needs to be formed in India – Negative Feature. Positive Features:  

Lily Thomas Case 2013 – Election reforms (Section 8 of Representation of People’s Act) (Disqualification of Convicted Representatives) Appointment of Chief Election Commissioner in BCCI polls.

ACTIVISM V. RESTRAINT Judiciary has to have some Restraints. Because –    

Activism at times become Over reach and encroachment Must not embarrass administrative authorities Must not claim expertise Orders ranging from criteria for Nursery admissions, no. of beds in hospitals, free seats in schools etc.

IF THERE IS LAW THEN ENFORCE IT, BUT DON’T CREATE LAW IF THERE IS NONE. If Executives or Legislatures are not functioning properly it is for people to correct defects by exercising their Franchise or by other Lawful methods. Remedy does not lie with the Judiciary taking role of other organs because Judiciary has “Neither resources nor Expertise”.

COURT’S SCORE CARD   

  

SC has played significant and “pivotal” role in sustaining India’s Liberal and Democratic Institutions and upholding Rule of Law. “Carved out” an independent role in appointments, transfers, extensive JR of Executive Actions and declaring CAA as unconstitutional (NJAC). The Weakness of the Political process provides fertile soil for Judicial Activism, and Judges keen to compensate for their failure to defend democratic principles during the 1975 – 77 emergency have avidly taken up the task of preserving the republic. (A.D.M. Jabalpur V. Shukla) (Vacuum created is filled by Judiciary) Being one of the World’s most powerful judicial bodies has implications for democracy both “positive and problematic”. Besides protecting basic liberties the Court has helped to ensure the polity’s democratic character by safeguarding the “Integrity of Electoral Process”. Curbed the tendency of the Central Govt.’s misusing Art.356. PAGE 117

    

 



Promoting De-centralized Governance – record mixed – ensuring the integrity if federalism (Art. 356) on dismissal without high threshold of public justification but has been less receptive to claims of lower tier of Govt. Generally upholds basic freedoms associated with liberal democracy (with some glaring exceptions) but weak record in Questioning Executive actions in Cases of Preventive Detention. Generally upheld Right to Expression but given more leeway in Banning Books. During Emergency shrank from its duty and chose “Supinely to Concur with Executives suspension of Habeas Corpus”. Have shied away from taking firm stand on hot religious issues – Babri Masjid Case languished for 50 years. Judges go to unusual lengths to show that, while they may recommend the reform of certain religious practices, they are not antireligious. Jurists have interpreted Indian Secularism itself as a kind of modus vivendi rather than as a set of principles. Judicial Innovation – PIL is the most important vehicle for “expansion of its powers” has although tried to provide more substantive conceptions to Equality (Preamble) and justices have been used to uphold the right to health, speedy trial, education, shelter, clean environment etc. Although the Court has significantly reduced the “standing” and “pleading” requirements in PIL + self-investigation undertaken + commissions made + implementation monitored etc.

PIL SCORE CARD PIL’s Mixed Success – Benefits  

 

Brought Moral and Psychological reinforcement to the legitimacy and democratic system (post ADM Jabalpur) It is Judge induced and Judge specific in nature. (personal philosophy and ideology of the Judge) (Strong Judicial Institution should be made and PIL can never be an alternative to a fast, efficient, effective judicial and police system, it can be temporary phenomena) A traditional captive agency with a low social visibility into a liberated agency with a high socio-political visibility is a remarkable development in the career of Indian appellate Judiciary. People now know that the Court has Constitutional power of intervention, which can be invoked to ameliorate their miseries arising from repression, governmental lawlessness and administrative deviance. (rather than going to in-house Grievance Redressal mechanism, they are going to Courts)

PIL’s Mixed Success – Issues 

  





Rather than improving the administration in favor of Public, they are weakening the administration in the long run by taking up the issues like shifting of IPL matches from Maharashtra due to drought. Instead Administration should consider these types of issues before giving permissions. Compensatory arrangements could not be the substitutive to the failure of system to provide speedy trial. Even when the SC listens to PIL’s, routinely intervenes also but routine access to justice remains extremely difficult. In India, punishment is not delivered after Due process but Due process itself is the Punishment. Court has established itself as a Forum of resolving matters of Public policy. But the results are not predictable because of the Judge’s personal philosophy. The Court’s interventions look less impressive. (We have so many rights under Art.21 but nit implementable) (Average trial for disposal of Civil matters take >20years (Right to Speedy trial)) The Legitimacy and power that Indian Judiciary does enjoy most likely flow not from a clear and consistent vision, but rather from its opposite. They have given partial victories (power to amend FRs but not the Basic Structure). The Court rulings are itself cresting powers for itself.

Upendra Baxi – A dire cure for drastic disorder: “Chemotherapy for a Carcinogenic Political Body” and certainly Judges have an important role to play in Strengthening our Democracy. But they will have to exercise great discretion and resist the intoxication because Judicial Restrain can be only Protection against Judicial Adventurism.

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COMPARISON OF INDIAN SC AND AMERICAN SC Indian SC

American SC

Original Jurisdiction is confined to Federal Cases

Not only federal cases but also related to Naval forces, Maritime activities and Ambassadors etc.

Appellate Jurisdiction covers constitutional, civil and criminal cases.

Confined to Constitutional cases only

It has advisory Jurisdiction

It has no advisory jurisdiction

Defends rights of citizens according to PEL

But by Due Process of Law (DPL)

Its Jurisdiction and Powers can be enlarged by Parliament

Are limited to that conferred by the Constitution

It has power of judicial superintendence and control over state high courts due to Integrated Judicial System.

It has no such power due to Double Judicial System (federal laws are enforced by federal judiciary and state laws are enforced by the state judiciary)

HC DIFFER SC IN THE FOLLOWING ASPECTS – Constitution does not specify the strength of HC and leaves it to the discretion of President. (But for the SC, under Art.124 SC shall consists CJI and 7 other judges until the Parliament by law increases the Strength) Qualification: He should have held a judicial office in the territory of India for 10 years or an advocate of HC for 10 years. Oath: Even though President appoints HC Judge, Oath must be taken before Governor. Tenure: can hold up to the age of 62 years (SC: 65 years) Removal: same as SC Judges by passing a motion in LS/RS. Transfer: President can transfer a Judge by consulting the CJI. Salaries are charged on Consolidated fund of State but Pensions are from Consolidated fund of India (SC: both are CFI) Original Jurisdiction: Just original (first instance, not by way of appeal) but not exclusive (SC: Exclusive Original)  In SC only federal related matters comes under Original Jurisdiction. But under HC the following comes –  Admiralty (related to ships or navigable waters), Marriage, Divorce, Contempt of Court  Disputes related to election of MPs and MLAs.  Regarding Revenue matters.  The 4 HCs (Bombay, Madras, Calcutta and Delhi) have Original Civil Jurisdiction in cases of higher value. Before 1973, the Calcutta, Bombay, Madras HC also had Original Criminal Jurisdiction. This was fully abolished by the Criminal Procedure Code, 1973 (CrPC) Writ Jurisdiction: can issue not only within the territorial jurisdiction but also outside its jurisdiction if the cause of action arises within its territorial jurisdiction (not exclusive but concurrent with Art.32) (but it has some wider powers than SC i.e. HC can issue not only for the enforcement of FRs but also to the Ordinary legal right). Appellate Jurisdiction:  Civil matters: 1. On both the questions of law and fact, if the amount exceeds the stipulated limit. 2. The cases involving questions of law only (not question of fact) 3. The Calcutta, Bombay and Madras HC have provision of INTRA-COURT appeals i.e. when a single judge of HC decided a case (either under Original or appellate), an appeal from such a decision lies to the division bench of the same HC. 4. In 1997, SC ruled that the tribunals are subject to the Writ Jurisdiction of the HCs. So, it is not possible for an aggrieved person to approach the SC directly against the decisions of the tribunals, without going to the HCs.  Criminal matters: Appeals from the judgments of sessions court and additional sessions court lie to the HC if the sentence is more than 7 years. It is also to be noted that a death sentence (Capital punishment) PAGE 119

awarded by a sessions court or additional sessions court should be confirmed by the HC before it can be executed, whether there is an appeal by the convicted person or not. Supervisory Jurisdiction: The power of superintendence of HC is very broad because – 1. It extends to all courts and tribunals whether they are subject to the appellate jurisdiction of the HC or not 2. It covers not only administrative superintendence but also judicial superintendence 3. It is a revisional jurisdiction 4. It can be suo-motu and not necessarily on the application of a party 5. It is consulted by the Governor in the matters of appointment, posting and promotion of district judges. Judicial Review: same as SC. It can also declare the law made by the State Legislature as invalid if it violates the Constitution.

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PANCHAYAT RAJ INSTITUTIONS LOCAL SELF GOVERNANCE       

Idea: Gandhian Philosophy – village councils are units of self-governance. Panchayat Raj Institutions: empowerment of people in socio-economic life through direct participation in routine administration. PRI’s: Leadership, political education, trust and faith in power structures. Traditional Panchayats: 5 elderly wise men whose acumen (take good and quick decisions) in administration. Legitimacy of Panchayats: approval of village or town residents and central political power of territory. Colonial Period: Lord Mayo and Lord Rippon – grappling with colonial subjugation their position became vulnerable. Post-Independence: Jawaharlal Nehru towards centralized administrative structure.

DECENTRALIZED PLANNING   

Preparation and Execution of Socio-Economical Developmental Plans. Rationale (reasons): local issues like roads, water management etc. would be done by local people – capability to mobilize resources. Participation of People: Sense of empowerment, transparency in executive agencies prevent corruption, time lags and cost overruns – Real Democratic Exercise.

BALWANT RAI MEHTA COMMITTEE (1952)    

To examine the work of Community Development Program (1952) and National Extension Service (1953) and to suggest measures for their better work. 1957: recommended scheme for Democratic Decentralization – ‘Panchayat Raj’. Recommendations were accepted by National Developmental Council in January 1958 but left to States for own pattern of administration based on local conditions. Rajasthan was the first state to adopt and was followed by Andhra Pradesh in 1959.

Recommendations:   

  

3 tier Panchayat Raj System – Gram Panchayat, Panchayat Samiti, Zilla Parishad Linking of tiers through indirect elections. The village Panchayat should be constituted with directly elected representatives, whereas the Panchayat Samiti and Zilla Parishad should be constituted with indirectly elected members. This is because Gram Panchayat is similar to that of state assembly where there is place for politics where as Samiti and Zilla Parishad members should be more educated and knowledge. So they may not need the majority support. All Planning and Developmental activities to theses 3 bodies. Panchayat Samiti (Block) – Executive Body, Zilla Parishad (District) – Advisory, Coordinating and Supervisory Body District Collector – Chairman of Zilla Parishad.

K SANTHANAM COMMITTEE (1963) 

Issue of PRI Finance in 1963 – sanctioning of grants by state to PRIs.

Recommendations:   

Powers to levy special tax on land revenues and home taxes. Grants, subventions at State level – sent to various PRIs. State Panchayat Raj Financial Corporation – loans and financial assistance to villagers

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ASHOK MEHTA COMMITTEE (1978)   

To revive and strengthen declining Panchayat Raj System. Action was not completed due to collapse of Janata Party Govt. But 3 States – Karnataka, WB, AP took steps to revitalize the System from these recommendations.

Recommendations:          

2 tier – Zilla Parishad at district level and Mandal Panchayat – group of villages having 15K to 20K population First level of decentralization should be District. ZP: executive body and Planning at district level. All development functions should be transferred to ZP. Taxation powers to mobilize their own financial resources. Social audit: by a district level agency and committee of legislators Official participation of Political parties at all levels of elections. Nyaya Panchayats: system of dispute resolution at village level. Civil and minor criminal jurisdiction. Presided over by a qualified Judge. Separate bodies from developmental Panchayats. Appointment of Minister for Panchayat Raj. Electoral Officer of State should organize the Panchayat elections in consultation with ECI. State govt. should not supersede the Panchayats. Elections should be conducted within 6 months of suppression.

G V K RAO COMMITTEE (1985)  

On Administrative arrangement for Rural Development and Poverty alleviation programs. It said that Developmental process was gradually bureaucratized and divorced from Panchayat Raj. It weakened the Democratization. So it gave some recommendations to again strengthen the PRI.

Recommendations:    

ZP should be given the pivotal importance in the scheme of decentralization. PRIs at all levels should be assigned an important role wrt planning, implementation and monitoring of rural development programs. Some of the planning functions should be transferred to District level for effective decentralization. A post of District Development Commissioner should be created. He should act as the Chief Executive Officer of ZP.

L M SINGHVI COMMITTEE (1986) 

Revitalization of PRI for Democracy and Development.

Recommendations:    

PRI should be constitutionally recognized, protected and preserved. Also provisions to ensure regular, free and fair elections to the PRIs. Nyaya Panchayats for cluster of villages. Village Panchayats should have more financial resources. Establishment of Judicial tribunals in each state to adjudicate the disputes of all matters of PRI.

EVOLUTION OF PRI   

Narasimha Rao govt. introduced. Approved by 17 State Assemblies and received the assent of the President on April 20, 1993. Emerged as 73rd CAA, 1992 – came into force on April 24, 1993.

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73RD CAA, 1992  

 

3 tier system. The Act defines all the terms in the following manner:  Panchayat means an institution of local self govt. for rural areas.  Village means, a village specified by the Governor through a public notification to be a village for this purpose and indicates a group of villages so specified.  Intermediate level between village and district specified by the Governor through a public notification for this purpose. Act brings uniformity in the Structure of Panchayat Raj throughout the Country. It transfers the Representative Democracy to Participatory Democracy.

Important features:      

   



 

Part IX 11th Schedule 29 functional items of Panchayat and 243G Article Constitutional Status Formation of Panchayats and Elections by the State Govt. at regular intervals (compulsorily) (Under JR). But allotment of seats or delimitation of constituencies cannot be questioned in any court. At all levels of Panchayats, Direct elections are to be conducted. But Chairpersons at Intermediate and District levels should be elected indirectly (chairperson at village level shall be elected as State Legislature determined manner). Reservation of seats for SC and ST at all levels in proportion of their population in that area. (Also chairpersons) The Act also provides 1/3rd of total members should be women (including the no. of seats reserved for women of SC and ST) and also 1/3rd of Chairpersons at all levels should be women. Duration: 5 years at every level but can be dissolved before completion also. Finances: The State legislature may  Authorize a Panchayat to levy, collect and appropriate taxes, duties, tolls and fees  Assign to a Panchayat taxes, duties, tolls and fees levied and collected by the State Govt.  Provide for making any grants-in-aid to the Panchayats from the Consolidated fund of State  Provide for constitution of funds for crediting all moneys of the Panchayats. Finance Commission: The Governor shall, after every 5 years, constitute a Finance commission to review the financial position of Panchayats. Recommendations to the Governor:  The Principles that should govern: o Distribution of taxes Bt. State and Panchayat. o Determination of taxes that may be assigned to Panchayats. o Grant-in-aid to the Panchayats from the consolidated fund of State.  Measures needed to improve the financial position of the Panchayats. Act doesn’t apply to J & K, Nagaland, Meghalaya and Mizoram. Not applicable to UTs subject to exceptions by President.

BEFORE INDEPENDENCE    

Gram – mobilization of military groups for power Vedic – no standing army for the King Kautilya – Gramakuta (Village Officer) Cholas Period – qualifications and disqualifications in elections, village committees – irrigation, road and water --> taxes. PAGE 123

 

Villages – independent Gandhi – VILLAGES SHOULD BE REPUBLIC

Modern India            

British Rule – Mobilize resources available locally Purpose – land revenue District – Unit of Administration  Collector Madras Presidency – First Municipality Lord Mayo’s Resolution – Local Bodies (nominated members) Lord Rippon – Father of Local Governance – Magna Carta of Local Self Governance  Local Bodies – Elected Memb. 1891 – Election system by British Taluka Boards and District Board System 1909 – Minto-Morley Reforms  Direct Elections to Local Bodies 1919 – Diarchy  local governance – transferred subjects 1923 – active in local bodies elections 1935 Act – Provincial Autonomy

After Independence  

Model of development  Gandhi – Gram Swaraj  Self-system – continuity of culture and administration in villages. Nehru: o Wanted to develop on model of Russia – only nation to become developed nation in short time (1921-30) o Villages dominated by the Feudalist class (Modern educated Indians) o Rural development through Official Machinery o 1952 – Community development Program divided into 100 blockseach block -100 villagesBlock development office - Chief executive agency >> Decentralization of power at block level o 1953 - National Extension service > Extended to village administration > Village development office – assistance to block development office (3-4 Panchayats) o Development – Stagnant o 1956: 5 year plan completed o 1957: Balwant Rai Mehta Committee > Block – executive > Zilla Parishad – Supervisory Body o 1958: Recommendations > National Development Council – 5th of State list entry o 1959: Rajasthan on October 2 and AP on November 1, 1959 o 1960-77: Successive failures > Ashok Mehta Committee – 2 tier > Public Administration close to villages o 1978: Dartwal Committee > Block level o 1984: Hanumantha Rao Committee > District level planning o 1985: G V K Rao Committee > Decentralized District Planning > ZP o 1986: Rajiv Gandhi - L M Singhvi Committee > Focus more on Rural Development > Opposed in RS o 1991: Narasimha Rao govt. > modified proposals o 1993: 73rd CAA came into force on April 24 o Primary Duties of Gram Panchayat: Drinking water and Sanitation o Failure of Gram Panchayat > SWACH BHARAT o Decentralization > Powerful PRI > Transfer of Power, Funds, Personnel o Centralized power – Bureaucracy > followed in British rule o In 1985, PR is powerful. President of Panchayat Samiti can contact the related officer but now it is absent due to bureaucrats and MLAs >> failure of Rural Development

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PRESENT STATUS OF PRI. HOW CAN THEY BE STRENGTHENED? Objectives       

To alleviate poverty among the rural farmers who have no better incentives. To create a framework and mechanism for effective rural governance and sustainable growth. To create a sustainable rural credit model for small holder farmers. To increase local household income from farming by utilizing better practices and by aggregating local produce. To stem the emigration of workers to urban areas, and to enhance opportunities for asset based growth locally. To empower small holder farmers. To enhance overall societal and environmental development.

Creating a Sustainable Rural Economy

 



PM Narendra Modi’s ‘adopt-a-village’ scheme called “Saansad Adarsh Gram Yojana” (SAGY). Focus on Rural Development: o Scheme is based on Mahatma Gandhi’s vision of transforming ‘Swaraj’ into ‘su-raj’ (good governance) o A village developmental plan will be prepared for each identified Gram Panchayat based on its needs o Funds from Centre, State and MPLAD (Member of Parliament Local Area Development Scheme) to be used for their development. o Two national level committees to monitor scheme’s implementation o In the 2nd phase, MPs will develop 5 more adarsh in 5 years starting from 2019. Key features of SAGY: o E-governance will also be given a push o Ensuring universal access to education facilities, adult literacy, e-literacy o Providing infrastructures in schools like toilets, libraries and supporting smart schools o To create vibrant and harmonious society within the village activities. o Personal development through sports, regular physical exercise, balanced nutrition and personal hygiene

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MUNICIPALITIES       

 



74th CAA, 1992. Part IX-A Twelfth Schedule 18 functional items Types of Municipalities: Nagar Panchayat, Municipal Council, Municipal Corporation Types of Urban Govt. (8): Municipal Corporation, Municipality, Notified area committee, Town area committee, Cantonment Board, Township, Port trust, Special Purpose Agency. Composition: o Persons having special knowledge or experience in municipal administration (no right to vote in meetings) o MLA and MP of LS of that area that comprise wholly or partly the municipal area. o MLC and MP of RS registered as electors within the Municipal area. o The Chairpersons of Committees (Other than Ward Committees) Ward Committee: Municipality having population more than 3 lakhs shall be constituted a Ward committee, consisting of one or more wards. District Planning Committee: o To consolidate plans prepared by Panchayats and Municipalities in district, and to prepare a draft development plan for the district as a whole. o 4/5th of the members of this committee should be elected by the elected members of the district Panchayat and Municipalities from amongst themselves. o The Chairperson of such committee shall forward the development plan to the State govt. (manner of chairperson election of such committees may provide by the State govt.) Metropolitan Planning Committee: o To prepare a draft development plan. o 2/3rd of the members of this committee should be elected by the elected members of the Municipalities and chairpersons of Panchayats in the metropolitan area from amongst themselves. o The Chairperson of such committee shall forward the development plan to the State govt.

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