EMERGENCY

THREE TYPES OF EMERGENCY UNDER THE INDIAN CONSTITUTION:

Black law’s dictionary defines emergency “as a failure of social system to deliver reasonable
conditions of life”. The term emergency may be defined as “circumstances arising suddenly that
calls for immediate action by the public authorities under the powers especially granted to them”.
Dr. B.R Ambedkar claimed that the Indian Federation was unique as during the times of
emergency it could convert itself into an entirely unitary system. In India, the emergency
provisions are such that the constitution itself enables the federal government acquire the
strength of unitary government whenever the situation demands. During such urgent needs all the
pacific methods should be exhausted and emergency should also be the last weapon to use as it
affects India’s federal feature of government.

There are three types of emergencies under the Indian Constitution namely-
· National Emergency
· Failure of constitutional machinery in states
· Financial Emergency

National Emergency

Article 352 of the Indian Constitution talks about the national emergency. National emergency is
imposed whereby there is a grave threat to the security of India or any of its territory due to war,
external aggression or armed rebellion. Such emergency shall be imposed by the president on the
basis of written request by the council of ministers headed by the Prime Minister. When they are
satisfied that they are satisfied that there is an eminent danger thereof.

Every proclamation is required to be laid before each House of Parliament, it will cease to
operate after one month from the date of its issue unless in the meantime it is approved by the
parliament, the proclamation may continue for a period of 6 months unless revoked by the
president. For further continuance of emergency the resolution has to be passed by either house
of parliament by a majority of not less than two-third members of the houses.

During the times of such emergency the executive, legislative and financial power rests with the
centre whereas the state legislature is not suspended. The union government under Art.250 of the
constitution gets the power to legislate in regards to subjects enumerated in the state list. Except
Art20 and 21 all the fundamental rights are suspended. Under Art.359 the president may suspend
the right to move to the courts for enforcement of fundamental rights during the time of
emergency.National emergency has been imposed thrice in the country- in 1962 at time of
Chinese aggression, in 1971 during the indo-pak war, in 1975 on the grounds of internal
disturbances.

Failure of Constitutional Machinery In State:

Article 256 talks about the failure of constitutional machinery in state also known as the
President’s rule. If the president on Governor’s report or otherwise is satisfied that the situation
has arisen that the government can’t be carried in accordance with the constitutional provisions
then, he may issue State emergency.

President can declare emergency either by the report of Governor or he himself is satisfied that
the situation is such that the emergency has to be imposed. But at times, President may declare
emergency when a report is not received from the governor. This was done by President
Venkataraman in 1991 in the state of Tamil Nadu even though he didn’t receive a report from the
governor.

After the 42th Amendment of the constitution the state emergency was made immune from
judicial review. But later in the 44th Amendment the legality of President’s rule could be
challenged

The proclamation relating to state emergency shall be laid before each House of Parliament
unless both Houses approve it, the emergency shall cease to have effect after the expiry of a
period of two months. Further the duration of proclamation can be extended to 6 months each
time by both Houses of Parliament passing resolution approving its continuance. Beyond the
period of an year the proclamation can only be continued if the Election Commission certifies
that it is not possible to hold election in the state or that territory. The consequences of state
emergency are-

· The president assumes all the executive power of the state himself. The state administration
runs by him or any person appointed by him generally the Governor.
· During such proclamation, the state assembly is either dissolved or suspended. But the MLA’s
do not lose their membership of the Assembly.
· Parliament makes laws regarding the state list. The parliament only passes the budget for the
state.
· The High court of the state functions independently.
· President also proclaims ordinances in the state.

During the state emergency the Union government has absolute control over the state except the
judiciary. If one looks at the past instances of state emergency in the country, three common
grounds emerge that have been invoked under Art.356- breakdown of law and order, political
instability, corruption and maladministration.

In Rameshwar Prasad V. UOI (Bihar Assembly Dissolution Case) it was held that the
presidential proclamation dissolving state assembly in Bihar under Art.356 was unconstitutional
on extraneous and irrelevant ground. The court said that the state governor misled the centre in
recommending dissolution of state assembly.
In the historic case of S.R Bommai V. UOI, a full bench of the Karnataka High court produced
different opinion about the imposition of the President’s rule in Karnataka, while in other states
the court held that it was in violation of the constitution and would have restored the original
position.
Financial Emergency:

The president under Article 360 of the constitution has the power to declare financial emergency
if he is satisfied that the financial stability or the credit of India or any part of its territory is
threatened. It has to be laid before both the Houses of Parliament and ceases to operate at the
expiration of two months unless meanwhile approved by the resolution of Houses.

During the operation of financial emergency, the executive authority of the union extends to the
giving of directions to any state to observe certain specified canons or financial propriety and
such other directions that the President may find necessary. The directions may include reduction
of salaries or allowance of those serving a state, of all those in connection with the affairs of
union including judges of high court and Supreme Court. There has been no occasion of financial
emergency in India.

Effects of Proclamation of Emergencies:

The effects of Proclamation of Emergency are given under Article 353 of the Constitution. The
power under this is provisional and cannot be used without reasonable care. The most important
effect is that during the operation of a proclamation the federal nature of the government
becomes unitary and the union has power to give directions to the state in reference to the
executive power to be exercised by them.

In this way the legislative power of the union parliament is enlarged up to the extent that it can
make laws for the state and also modify provisions regarding revenue matters. Where the
fundamental rights are concerned, during emergency arising out of war or external aggression
Article 19 is suspended. During the continuance of proclamation, power is vested in the
President to suspend the right of individual to move to the courts in case of infringement of their
fundamental rights except those under Article 20 and Article 21 under the Constitution of India.

In Bennett Coleman & co. v. Union of India, the supreme court held that the Newsprint Policy of
1972-73 in continuation of the old policy made before the Proclamation of Emergency was not
protected during the operation of the proclamation from attack under Article 19.
Under the President’s Rule the President is empowered with powers to suspend or dissolve the
State legislative Assembly. The provisions made by the president in view of the Rule are
incidental or consequential and must be necessary to give effect to objects of the proclamation.
Article 357 provides the manner in which the legislative powers are exercised under the
proclamation issued under Article 356.

In Nishi Kanta Mondal v. State of W.B, it was held that the Act enacted, in view of the
provisions of clause (2) of Article 357, shall continue to remain in force in spite of the revocation
of the Proclamation unless the Act is repealed or re-enacted with or without modifications by an
Act of appropriate legislature.

While the Proclamation of Financial Emergency is operative as per Article 360 of the
constitution, powers are vested in the President to give directions to states regarding financial
matters, to reduce salaries and allowance of government servants and also reserve all money
bills. The salaries of the higher official including judges of the Supreme Court can also be altered
to make the country financially stable at times of crisis.

Abuse of Power:

It is clear that the power extended to the Union Parliament in the Proclamation of Emergency
must be used in rarest of the rare cases. However it is not so, the power given to the President to
be used in extraordinary circumstances is widely used for political benefits of individuals rather
than public interest. This abuse of power can easily lead to sedition of the Indian democracy. In a
number of cases the power was distorted with political considerations, sometimes there is also
self interest of the individual that lie behind the decisions taken during manoeuvre of
Emergency. The 44th amendment ensured that internal disturbance would no longer be ground
for Proclamation of Emergency, where it lead to the worst abuse of Emergency power at
National level in 1975 and continued till 1977.

The power under Article 356 has been used frequently in India since 1950, especially in states
like Uttar Pradesh, Kerela and Punjab. At one instance this President’s Rule was imposed purely
on political grounds to overthrow the ministry formed by a different party. By the 42nd
amendment in 1976, it was exemplified as it affected almost sixty clauses of the constitution.
Therefore there is demand for either deletion or making provisions to restrict misuse of these
provisions.

Deterrence of Abuse of Power:

It is noteworthy that the Emergency Provisions are subject to abuse by the authorities and
relevant safeguards must be followed to deter the same. The constitution of India guarantees to
the citizens of India fundamental rights, which are suspended pursuant to Emergency Provisions.
It must be kept in mind that the human rights must be not violated during the proclamation, if so,
done with justifiable cause in favour of individual interest. Also the social, cultural, political, and
civil rights of people must be safeguarded.

The Provisions must not be such as to disregard the principle of legality. ‘Due procedure of law’
or ‘procedure established by law’ as mentioned in Maneka Gandhi v. Union of India, must be
followed to prevent corruption and misuse of power. It is a conditional power and must be used
as a last resort with due care. The Sarkaria Commission sharing a similar view believes that this
extraordinary power given by the constitution must be used as a constitutional weapon to deal
with extreme situation and not used frequently as is being done in India.

First time in S.R Bommai v. Union of India, it was held that the Proclamation under Artcle 356
can be subject to judicial review. The judges have the power to examine the validity of grounds
on which the Proclamation of Emergency is based. The power of judicial review was first
experienced in State of Rajasthan v. Union of India, held that there cannot be any uniform rule of
law for Proclamation of Emergency, it varies in different circumstances.

Also in Ram Manohar Lohia v. State of Bihar, the order of detention under the Defence of India
Rules was held to be illegal because the actual order of detention in the case was not in terms of
the rules. Proclamation of Emergency provisions are legitimate action but must be applied only
when the situation demands. It should be used cautiously to avoid interruption in the
constitutional mechanism. Therefore, limitations should be placed to bring the actions under
constitutional limit. Government is responsible for all the acts and thus scrutiny of the basis of
rules is a necessity to deter abuse of power for political or other purpose other than social
welfare. Where state government fails to follow the directions of the central government,
proclamation of Emergency cannot be imposed.

Emergency intervention in the country must be for short term and it should deal with Emergency
situations only. The decision making power must not be vested in few hands, this may lead to
biased ground of imposing Proclamation. Expertise from different areas of work must be
involved in decision making process. Thus it is crystal clear that to prevent abuse of power
during Proclamation of Emergency three things should be kept in mind i.e functioning
democracy, protection of human rights and Rule of Law.

A Relative Study:

The Indian Constitution equips the central government with powers to function while operation
of Proclamation of Emergency whether National Emergency, Emergency due to failure of
constitutional machinery in states or Financial Emergency. The President is vested with wide
discretionary powers, subject to constitutional validity of the same. Similarly in the European
countries the Emergency measures must not exceed that what the situation demands and they
cannot be inconsistent with the states other obligations as per under the International law.

One of the duties while exercising the power under Article 352 is the protection of human rights.
However Article 19 is suspended during operation of the proclamation but as soon as the
Emergency ceases, these rights must be reinstated to the individuals. In Bangladesh it is
recommended that there should be immediate restoration of fundamental and democratic rights
of people after the Emergency ceases to operate.

As stated in S.R. Bommai v. Union of India, that grounds of Proclamation of Emergency must be
reasonable and are subject to judicial review, the ancient Romans placed automatic limit of six
months on Emergency dictatorship. According to them existence of reasonable cause is must and
the same should be proved and justified.

The President can declare an Emergency mentioned in Article 352 of the Constitution of India
only on written advice of the Union Cabinet, with further approval of the House of Parliament
within one month in case of National Emergency and within two months in case of the other two
types of Emergencies, from the date of its imposition. Also, in Germany, the President can
declare Emergency on request of the Chancellor with approval of Federal Council.

Conclusion:

Where the Constitution provides for execution of power which may lead to infringement of
fundamental rights of the individual during Emergency, judicially guaranteed by Constitution of
India, there must also be effective control mechanism to ensure limitation of this power within
the ambit of the Constitution. The validity of actions must be reviewed to deter political gains
and give way to public interest. Despite the abuse of power the Emergency provisions still have a
role to play under conditions prevailing in India, though it still remains a controversial issue in
the country.

PANCHAYATI RAJ SYSTEM

INTRODUCTION

India, primarily, is a land of villages and around 72% of the total population of India resides in
the rural areas. The rural areas thus forms the roots for the governance in India and the
democracy should start thereon. Mahatma Gandhi also said that the main element for the
development and for the governance should not be the big cities rather the village because it is
where India resides.2 In India, we have a unique system for governance at the village level. The
governance of such small unit of India is by the Institutes, called the Panchayati Raj Institutions.
The Panchayati Raj Institute derives their existence from the Constitution under Part IX under
the head The Panchayats. The story of Panchayat is not just a few decades old; rather it has been
prevalent in India from ages.

In the Rigvedic period, i.e. around 1200 B.C. there were Sabha that has the primary function of
the administration of the area. This concept of Sabha gradually converted to the panchayat and it
was so called because it was headed by 5 people. In the Medieval period, the panchayati system
deteriorated because of the increase in the Zamindari system in the rural areas. The task of
administration slowly got converted to tax collection as a result thereof. At this time also the
village had a separate mechanism for its administration though the concept of panchayati raj got
deteriorated.3 With the change in the dynasties ruling India, the concept of Kotwal came with the
Mughal era whose task was to undertake the administration of the area assigned, to collect tax
and other incidental functions. But the concept of Kotwal also got deteriorated with the
inducement of cast system and feudalism in India especially after the British invention. In the
British era, the Government was not in favour of any decentralization, therefore after the mutiny
of 1857, they came with the Government of India Act, 1858 and removing the decentralization.

Lord Mayo in 1870 advocated for decentralization, but it was unapproved. Subsequently, Lord
Rippon advocated for decentralization but the same was approved till the extent of urban areas.
Then came the Royal Commission in 1907 which advocated for village panchayat but it was not
accepted due to various reasons. 4 Further in the Montego Chemsford Reforms that were carried
out in 1919, right after the World War I wherein England was not in a strong position, some
autonomy to the provincial government was given to the provincial government and some
powers were given to the elected representatives.

There were two separate Lists under the laws, one for the Governor and second for the elected
local representatives. Further, under the Government of India Act, 1935 all the powers were
taken back because both the lists that were legislated were repealed and therefore the
decentralization was again withdrawn. Meanwhile, during the formation of the Constitution of
India, in the Constituent Assembly, Panchayati Raj was kept under the heads of Directive
Principles of State Policy under Part IV of the Constitution mainly because of the political
instability of the new government and the paucity of funds and therefore it was not practically
possible for the newly formed India to have a third tier of the Governance which was right at the
lowest tier in the country.

After the Indian independence, there were various committees that tried to give a proper
structure to the Panchayati Raj in India. These are: Balwant Rai Mehta Committee, 1957: this
committee mainly it advocated for the basic level of administration be at the Block level. K.
Santhanam Committee, 1963: advocated that the Panchayati Raj Institution (PRI) be given the
powers to levy tax and it should become as the main source for the funding of the institution.
Ashok Mehta Committee, 1978: This committee suggested that the Panchayati Raj Institute
shall be a two tier body which should operate at the Zilla level and the Mandal level. The nodal
area would be at the Block Level (taken care of by the Block Development Officer) and Zilla
Parishad shall have an advisory role to both, the State Government and to the Block level
institution. G.V.K. Rao Committee, 1985: this committee again advocated for a three tier
system. It said that the PRIs should be at district and local level. The District Development
Officer (DDO) shall be appointed for the main administration of the village units. L.M. Singhvi
Committee, 1986: this committee advocated that in order to establish a governing body for any
part of India, it must be given a Constitutional structure. As a result, 73rd Amendment was made
to the Constitution and Part IX A was inserted as THE PANCHAYATS.

STRUCTURE OF THE PANCHAYATS

In spite of the fact that the essential structure of the PRIs is indistinguishable over the conditions
of India, it is portrayed by means of various classifications in various states. Panchayats in each
state has its own attributes and even race strategies to these establishments are at fluctuation
from area to area.

A District Panchayat or Zilla Parishad is established for every region. Every district has one Zilla
Parishad. Likewise Block Panchayats or Panchayat Samitis are established for the said area. A
Block might have a few towns under its jurisdiction, on the other hand Gram Panchayats are not
inexorably co end with every town. Contingent upon the measure of populace (in actuality,
number of voters) a Gram is characterized under the law with a particular geological zone, which
might comprise of a solitary town or a group of connecting towns.7 Panchayati Raj Institute has
the following bodies under it: Zilla Panchayat: Every Panchayat under a Zilla Parishad chooses
one/two/three individuals directly (contingent upon number of voters inside of it). Presidents of
all the Block Panchayats are likewise ex-officio individuals from the Zilla Parishad.

In a few expresses the Member of Legislative Assembly (MLA) and Member of Parliament (MP)
of the locale/body electorate are additionally ex-officio individuals. 8 Block Panchayat or
Panchayat Samiti: Every Gram Panchayat under a Block Panchayat chooses one/two/three
individuals specifically to the Block Panchayat. Gram Pradhans are ex-officio individuals from
the Block Panchayats. 9 Gram Panchayat: A Gram as characterized under the Act (which
means a town or a bunch of towns) is separated into at least five voting demographics (again
relying upon the quantity of voters the Gram is having). From each of these voting demographics
one part is chosen. Body of these chose individuals is known as the Gram Panchayat. Size of the
Gram Panchayats fluctuates generally from state to state. In states like West Bengal, Kerala and
so on a Gram Panchayahas around 20000 individuals on an average, while in numerous different
states it is around 3000 as it were. 10 Gram Sabha: In a large portion of the states, every voting
public of the individuals from the Gram Panchayat is known as the Gram Sabha and every one of
the voters of the same body electorate are individuals from this body.

In any case, in a few expresses this is called Ward Sabha/Palli Sabha and so on. In West Bengal
it is called Gram Sansad (town parliament). Gram Sabha in West Bengal has an alternate
importance. Here every one of the voters of the Gram Panchayat overall constitute the Gram
Sabha. Under the Constitution there can be just three levels of the Panchayat. The Gram Sabha is
not a level of the Panchayati Raj framework. It doesn't have any official capacity and works as a
suggesting body as it were. Gram Sabhas hold gatherings ordinarily 2 to 4 times each year,
however they can meet as and when important.

In a few states dates of these gatherings are altered (Madhya Pradesh, Gujarat and so on) while in
others dates are settled by the Gram Panchayats. Issues to be talked about in the gatherings can
be far reaching yet the crucial motivation ought to include: Annual Action Plan and Budget,
Annual Accounts and Annual report of the GP, choice of recipients for various social
administration programs (Pradhan Mantri Awas Yojana , various Pension Schemes to name a
few), recognizable proof of plans for planning of Annual Plan for advancement programs (e.g.
MGNREGA) of Gram Panchayat, thought of the Audit reports, investigations of Gram
Panchayat's execution and so forth.

FEATURES OF 73rd AMENDMENT OF THE CONSTITUTION

After the recommendations of the L. M. Singhvi Committee, the Panchayati Raj Institutions were
a given a Constitutional status under Part IX of the Constitution. The Part was added by the
virtue of the Seventy Third Amendment Act. 11 Some of the features of the Act are: It did not
apply to Schedule V areas of 9 states, schedule VI areas of North East, Darjeeling District and
Jammu & Kashmir. Panchayati (Extension to Scheduled Areas) Act, 1996 was brought to extend
the Panchayati Raj Institutions to the Scheduled and Tribal areas under Schedule V areas of 9
states. It also recognises the control of the Panchayati Raj Institutions over the natural resources
of the area.

The Panchayati Raj Institutes should be a 3 tier body for the State having population more than
20 lakhs, making to get some uniformity in the structure in the country. The election for the
Panchayats takes place every 5 years and the elections are conducted by the State Election
Commission, under the supervision of the State Election Commissioner. 12 The Amendment
provides for the reservation for women and SC/STs for effective participation in the rural areas
and to make people reinstate their faith in the governance of the country. There is a provision for
the constitution of the State Finance Commission to make recommendation to the State
Government as far as the fiscal matters and other allied matters relating to the Panchayats are
concerned. To establish the District Planning Committee.

ISSUES IN PANCHAYATI RAJ TODAY

Even after the implementation of the Panchayati Raj Institutions in India in almost every state,
still there seems to be various issues that are yet to be dealt in order to ensure effective
participation of these institutions.13 Some of them are: In India, there are around 2, 32,278
panchayats at the village level; 6022 at the intermediate level; 535 at the district level still the
panchayats has minimal powers to generate revenue. They do not have the powers to levy taxes
and therefore they are hugely dependent on the State Government for funding.

Therefore it is just a functional autonomy as it seems to be an extended form for the State
Government and no other governing body even after having a Constitutional status. 14 The
recommendations of the State Finance Commission are not accepted. The State Finance
Commission is meant to ensure an effective mechanism for the Panchayati institutions but it
seems as if these institutions are merely on papers and not otherwise.15 There is no uniform
system of election across the country as it is conducted by the State Election Commission.

This leads to a functional deformity as the Constitution gives them an equal status and therefore
there should be uniformity in the procedure followed in the functioning of the panchayati
institutes throughout India. Out of the total panchayats, 27 lakh people are elected throughout
India wherein 37% are women; 19% are SC and 12% are ST.16 Till November 2006, 8 states
and 1 U.T. have transferred all 29 functions or subjects to the PRI. This clearly shows that in
India the panchayats are merely an extension of the State and are not like a separate
administrative unit, having a unique constitutional status.

Kerala is the only state which has developed 40% of its plan outlay to the PRIs. It is important to
note that only 13 states and 4 U.T. have constituted the District Planning Committee.17 Even in
the daily functioning of the panchayati there are various lacunas like the problem of the proxy
role exists because there are a few recognized people in the village that only run the system and
not the actual elected candidate. Even after the legislative of keeping the panchayats clean from
politics, there still exists influence of the bureaucracy and the political parties.

WORKINGS OF PANCHAYATI RAJ

The workings of PR institutions during the past three decades have produced two views. One is
that PR functionaries, political as well as administrative, are interested in power politics and the
distribution of patronage, creating tensions in village communities. They have failed to protect
the interests of the poor and even failed to protect and strengthen the planning process at the
micro level, such as in the development of agriculture, minor irrigation sys- tems, social welfare,
and so on.

The other point of view attributes the limited success of panchayati raj to lack of money, lack of
cooperation from govern- ment departments, half-hearted policies overly penetrated by state
authorities from above, and the defective structure of PR institutions. In the beginning, the PR
system worked successfully in some states- Rajasthan, Maharashtra, Gujarat, Andhra Pradesh-
but within ten years it became apparent that panchayat performance was not what it was
portrayed to be.

Studies showed that the benefits of development were being cornered by organized vested
interest groups in the PR bodies at the expense of the rural poor. Research conducted by scholars
in various states as well as by some state level and all-India committees made it clear that the
councils were not fulfilling the expectations of rural people. Karnataka and West Bengal
experiments in the PR system have been cited as success stories,5 with the zilla panchayats in
Karnataka said to be emerging as a power center below the state. But studies by George Mathew
and Gurumurthy,6 have shown that power in the districts is enjoyed mainly by dominant castes
and that the inter- ests of the poor are sacrificed to the interests of the district leadership.

The West Bengal study also shows that the panchayati raj bodies have been inef- fective in
getting benefits to percolate down to the poor in the villages.8 The study by Hirway clearly
shows that the socioeconomic power structure in rural areas does not allow the benefits of the PR
system to flow toward the weaker sections9; rather, the benefits are going to the dominant castes
in the panchayats. It became very clear that the PR is working for elite groups or for groups of
big farmers and rich businessmen, and the system has thus lost its appeal.

CONCLUSION AND SUGGESTIONS

The concept of panchayati raj is not a recent one in India. There have been traces wherein the
said system has been found working effectively in administration of the small units of the
countries, like the villages. This concept has been acknowledged by various Constitutional
framers and keeping in mind the Constituent Assembly’s intent in mind, this has been given a
Constitutional status under Part IX by the virtue of the Seventy Third Amendment. Even after
two decades of the working of the panchayati raj in India constitutionally, there have been
various issues in its effective functioning.

UNION TERRITORIES

The Constitution (Seventh Amendment) Act, 1956, replaced the States in Part C and Territories
in Part D of the First Schedule by the ‘Union Territories’, which, under Part II of the First
Schedule (as amended) were then six in number Delhi, Himachal Pradesh; Manipur; Tripura;
Andaman & Nicobar Islands; Laccadive, Minicoy and Amindivi Islands.

After subsequent amendment Acts, the following belong to the list of Union Territories 1.
Andaman & Nicobar Islands. 2. Chandigarh. 3. Dadra and Nagar Haveli. 4. Delhi 5. Daman &
Diu. 6. Lakshadweep. 7. Pondicherry (now Pondicherry). Some union territories have their own
legislative assemblies and councils of members such as Daman & Diu, Pondicherry and Delhi
(National Capital Territory), while others do not.

Constitutional Provisions:
Article 2 provides that Parliament may, by law admit into the Union, or establish new States on
such terms and conditions as it thinks fit. Article 2 thus, gives Parliament two powers, first, to
admit into the Union new States, and secondly, the power to establish new States.

Article 3 provides that a new State may be formed or established in the following ways:
(i) By separation of territory from any State; or
(ii) By uniting two or more States; or
(iii) By uniting any parts of States; or
(iv) By uniting any territory to a part of any State.
Parliament under this Article can also increase or decrease the area of any State or after the
boundaries or change the name of any State.

Article 4 provides that any law referred to in Article 2 and 3 shall contain such provisions for the
amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to
the provisions of the law and may also contain such supplemental, incidental and consequential
provisions (including provisions as to representation in Parliament and in the Legislature or
Legislatures of the State or States affected by such law) as Parliament may deem necessary.

Administration of Union Territories:

Art. 239 (1) provides that every Union Territory shall be administered by the President acting, to
such extent as he thinks fit, through an Administrator to be appointed by him with such
designation as he may specify.

Instead of appointing as Administrator from outside, the President may appoint the Governor of
a State as the Administrator of an adjoining Union Territory and where a Governor is so
appointed, he shall exercise his functions as such Administrator independently of his council of
Ministers.
All the Union Territories are thus administered by an Administrator as the agent of the President
and not by Governor acting as the head of a State. The President as the executive head of a
Union Territory does not function as the head of the Central Government, but as the head of the
Union Territory under powers specially vested in him under Art. 239.

Under Art. 239, the President occupies, in regard to Union Territories, a position analogous to
that of a Governor in a State. Though the Union Territories are centrally administrated under the
provisions of Art. 239 they do not become merged with the Central Government.

(i) Administrator:
Chandigarh, Dadra & Nagar Haveli, Daman and Diu, Lakshadweep

(ii) Lieutenant Governor:

Delhi, Pondicherry Andaman & Nicobar Islands.

Creation of Local Legislatures:

In 1962, however, Art. 239 A (amended by the 37th Amendment, 1974) was introduced in the
Constitution, to empower Parliament to create a Legislature or Council of Ministers or both for
some Union Territories. Only Pondicherry and Delhi have a Legislature now, with Mizoram,
Arunachal Pradesh and Goa having attained statehood

Legislative Powers:
Parliament has exclusive legislative power over a Union Territory, including matters which are
enumerated in the State List (Art. 246 (4)). But so far as the two groups of Island Territories,
Dadra and Nagar Haveli, Daman and Diu, Pondicherry are concerned, the President has got a
legislative power, namely, to make regulations for the peace, progress and good government of
these territories.

Acquired Territories:
There are no separate provisions in the Constitution relating to the administration of Acquired
Territories but the provisions relating to Union Territories will extend by virtue of the definition.
‘Union Territory’.
Thus the Territory of Pondicherry, Karaikal, Yanama and Mahe, was being administered by the
President of India through a Chief Commissioner until it was made a Union Territory, in 1962.
Parliament has plenary power of legislation regarding such territory as in the case of Union
Territories.

High Courts:
Parliament may by law constitute a High Court for a Union Territory or declare any court in any
such Territory to be a High Court for all or any of the purposes of the Constitution [Art. 241],
Until such legislation is made, the existing High Courts relating to such territories shall continue
to exercise their jurisdiction.

In the result, the Punjab and Haryana High Court acts as the high Court of Chandigarh; the
Lakshadweep is under the jurisdiction of the Kerala High Court; the Calcutta High court has got
jurisdiction over the Andaman and Nicobar Islands, the Madras High Court has jurisdiction over
Pondicherry; the Territory of Daman and Diu comes under Bombay High Court. Delhi has a
separate High Court of its own since 1966.

The difference between a state and union territory is considered mainly in terms of India. India is
a country that has both states and union territories. Thus, to understand the difference between
them we may differ the union territories and states of India. India has twenty eight states and
seven union territories. The difference in the powers of both is with respect to the Constitution of
India. The President of India appoints an Administrator or Lieutenant-Governor for each
territory. Before the independence of India, these areas were known as chief-commissioner
provinces. In 1937, Government of India Act, came into force. It categorized the provinces into
three parts: - governor’s province, the chief commissioner’s province and the Indian states. The
act also stated that the chief commissioner provinces should be directly administered from the
center. The contents of this Act formed the basis of Article 239 that was regarding the
governance of union territories.

After the independence the conversion of states into centrally administered area was applied to
areas which required the direct control of Government of India. After going
through various phases the term union territory was fist used in 1956 to refer to the territories
that could not find parity with states. Later with lots of amendments and changes the territories
under union territories still kept on changing. Later when some of the territories like Goa, Daman
and Diu were liberated from Portuguese, they also gained the status of union territory. At present
the country has seven union territories.

States, on the other hand have their own elected governments. According to the article 162 of the
Constitution, a state has independent freedom to make laws governing the state. States of India
have evolved on the basis of linguistics. The language and culture formed the basis for
determining the boundaries of the states. In the formation of states, economic and administrative
conveniences were also taken into account. Today, 28 states are present in India. Each state has
cities or towns that are considered to be the state’s own administrative, judicial and legislative
capitals.

Apart from the governing factor the sates and union territories and also differ on numerous ways.
Few differences are mentioned in the table below:

State Union Territory

Administrative units having their Administrative units that are ruled directly
Definition
own governments by the central government

Size Comparatively large Comparatively small

Administration Comparatively less; as covered by central

Comparatively huge
Overheads government

Special: due to their constitutional

rights and status Common
formation and development
 ELECTION COMMISSION:

Election Commission of India- Functions and Working

The Constitution of India ushered in a democratic republic for the free people of the country. The
founding fathers of the Constitution took solemn care to devote a special chapter to elections
niched safely in Part XV of the Constitution. The draft of Art 289 of the Constitution of India
(which on adoption later became the present Art 324 in Part XV of the Constitution) was
introduced in the Constituent Assembly on 15 ]une 1949 by Dr BR Ambedkar, Chairman of the
Drafting Committee of the Constituent Assembly and one of the chief architects of the Indian
Constitution.

Part Xv Of The Constitution Of India

Elections
Article 324. Superintendence , direction, and control of elections to be vested in an Election
Commission.

(1) The superintendence, direction and control of the preparation of the electoral rolls for, and
the conduct of, all elections to Parliament and to the Legislature of every State and of elections to
the offices of President and Vice-President held under this Constitution[1] [***] shall be vested
in a Commission (referred to in this Constitution as the Election Commission).

(2) The Election Commission shall consist of the Chief Election Commissioner and such number
of other Election Commissioners, if any, as the President may from time to time fix and the
appointment of the Chief Election Commissioner and other Election Commissioners shall,
subject to the provisions of any law made in that behalf by Parliament, be made by the
President.

(3) When any other Election Commissioner is so appointed the Chief Election Commissioner
shall act as the Chairman of the Election Commission.
(4) Before each general election to the House of the People and to the Legislative Assembly of
each State, and before the first general election and thereafter before each biennial election to the
Legislative Council of each State having such Council, the President may also appoint after
consultation with the Election Commission such Regional Commissioners as he may consider
necessary to assist the Election Commission in the performance of the functions conferred on the
Commission by clause.

(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure
of office of the Election Commissioners and the Regional Commissioners shall be such as the
President may by rule determine:

Provided that the Chief Election Commissioner shall not be removed from his office except in
like manner and on the like grounds as a Judge of the Supreme Court and the conditions of
service of the Chief Election Commissioner shall not be varied to his disadvantage after his
appointment:

Provided further that any other Election Commissioner or a Regional Commissioner shall not be
removed from office except on the recommendation of the Chief Election Commissioner.

(6) The President, or the Governor[2] [***] of a State, shall, when so requested by the Election
Commission, make available to the Election Commission or to a Regional Commissioner such
staff as may be necessary for the discharge of the functions conferred on the Election
Commission by clause (1). [3]

The Supreme Court in TN Seshan v Union of India and Ors[4] observed that :
Democracy being the basic feature of our constitutional set up, there can be no two opinions that
free and fair elections to our legislative bodies alone would guarantee the growth of a healthy
democracy in the country. ln order to ensure the purity of the election process, it was thought by
our Constitution-makers that the responsibility to hold free and fair election in the country should
be entrusted to an independent body which would be insulated from political and/ or executive
interference. It is inherent in a democratic set up that the agency which is entrusted the task of
holding elections to the legislatures should be fully insulated so that it can function as an
independent agency free from external pressures from the party in power or executive of the day.
This objective is achieved by the setting up of an Election Commission, a permanent body, under
Art 324(1) of the constitution.

The Constituent Assembly of Jammu and Kashmir also reposed faith in the Election
Commission, created as aforesaid under Art 324 of the Constitution of India, and entrusted the
task of holding elections to the State Legislature of Jammu and Kashmir to the same
Commission, instead of creating a separate State commission which it could do under its own
constitution (s 158 of the Jammu and Kashmir Constitution).

Structure Of The Election Commission:

The commission presently consists of a Chief Election Commissioner and two Election
Commissioners, appointed by the president.

Until October 1989, there was just one Chief Election Commissioner. In 1989, two Election
Commissioners were appointed, but were removed again in January 1990. In 1991, however, the
Parliament of India passed a law providing for the appointment of two Election Commissioners.
This law was amended and renamed in 1993 as the Chief Election Commissioner and other
Election Commissioners (Conditions of Service) Amendment Act 1993. As of Tuesday, 21 April
2009, the CEC is Navin Chawla. The two Election Commissioners are S.Y. Quraishi and former
Power Secretary V.S. Sampath .

The Constitution does not prescribe any qualifications, academic or otherwise, for appointment
to these offices. However, by convention, only senior civil servants, either serving or retired, of
the rank of the cabinet secretary or secretary to the Government of India or of an equivalent rank
have been appointed as the Chief Election Commissioner and election commissioners so far. In
Bhagwati Prashad Dixit Ghorewala v. Rajiv Gandhi[6], it was contended that as the Chief
Election Commissioner is placed at par with a judge of the Supreme Court in the matter of his
removability from office under the Constitution, for his appointment also he should possess
qualifications similar to that of a judge of the Supreme Court. However, the Supreme Court
rejected. that contention

The Chief Election Commissioner may be removed from his office in like manner and on the like
grounds as a judge of the Supreme Court. It means the Chief Election Commissioner may be
removed from office by Parliament by passing a resolution to that effect, passed by special
majority on the ground of proved misbehavior or incapacity. The Election Commission shall
consist of a chief Election Commissioner and such other Commissioners as the President may,
from time to time, fix. Other Election Commissioner may be removed by the President on the
recommendation of the Chief Election Commissioner. Salary of chief election commissioner is
same as justice of Supreme Court of India. All three commissioners have same right of taking a
decision. Tenure of commissioners is 6 years or up to age of 65, whichever is earlier. The
Election Commission of India has completed more than 300 elections. The Chief Election
Commissioner can be removed from office only on the like manner and on like grounds as a
judge of Supreme Court.

Election Machinery
The Commission has a separate Secretariat at New Delhi, consisting of about 300 officials, in a
hierarchical set up. Two Deputy Election Commissioners who are the senior most officers in the
Secretariat assist the Commission. They are generally appointed from the national civil service of
the country and are selected and appointed by the Commission with tenure. Directors, Principal
Secretaries, and Secretaries, Under Secretaries and Deputy Directors support the Deputy Election
Commissioners in turn. There is functional and territorial distribution of work in the
Commission. The work is organised in Divisions, Branches and sections; each of the last
mentioned units is in charge of a Section Officer. The main functional divisions are Planning,
Judicial, Administration, Information Systems, Media and Secretariat Co-ordination.

The territorial work is distributed among separate units responsible for different Zones into
which the 35 constituent States and Union Territories of the country are grouped for convenience
of management. At the State level, the election work is supervised, subject to overall
superintendence, direction and control of the Commission, by the Chief Electoral Officer of the
State, who is appointed by the Commission from amongst senior civil servants proposed by the
concerned State government.

He is, in most of the States, a full time officer and has a team of supporting staff. At the district
and constituency levels, the District Election Officers, Electoral Registration Officers and
Returning Officers, who are assisted by a large number of junior functionaries, perform election
work. They all perform their functions relating to elections in addition to their other
responsibilities. During election time, however, they are available to the Commission, more or
less, on a full time basis. The gigantic task force for conducting a countrywide general election
consists of nearly five million polling personnel and civil police forces. This huge election
machinery is deemed to be on deputation to the Election Commission and is subject to its
control, superintendence and discipline during the election period, extending over a period of one
and half to two months.

Administrative Expenditure of the Election Commission

The Administrative expenditure of the Election Commission is not a ‘charge’ on the

Consolidated Fund of India, and is a voted expenditure. The Commission has proposed to the
government that its administrative expenditure should also be a `charge’ on the Consolidated
Fund of India, like the expenditure of some other constitutional authorities, namely the Union
Public Service Commission and the Comptroller and Auditor- General of India. This proposal
did not find favour with the Goswami Committee on Electoral Reforms in 1990. However, the
government subsequently accepted the Commission’s proposal and introduced a Bill titled the
Election Commission (Charging of Expenses on the Consolidated Fund of India) Bill 1994, in
the House of the People, but it lapsed without being passed on the dissolution of that House in
1996. Thus, the expenditure of the Commission continues to be voted by Parliament, despite the
reiteration of its proposal by the Election Commission from time to time and in its latest
proposals in July 2004.
State Election Commissions
Structure
Powers Of The State Election Commission:

The State Election Commission has the following powers in respect of Enquiry and examination
on the issue of disqualification of a candidate or an elected member, as provided under Section
139 of the Kerala Panchayat Raj Act, 1994:

1.”where the State Election Commission in deciding any question under sub section
(2) of Section 34 or Section 36 of this Act considers it necessary or proper to make an enquiry,
and the Commission is satisfied that on the basis of the affidavits filed and the documents
produced in such enquiry by the parties concerned of their own accord, it cannot come to a
decision in the matter which is being inquired into, the Commission shall have, for the purposes
of such inquiry, the powers of a civil court, while trying a suit under the Code of Civil
Procedure, 1908 (Central Act 5 of 1908) in respect of the following matters, namely:-

A. summoning and enforcing the attendance of any person and examining him on oath;
B. requiring the discovery and production of any document or other material object producible as
evidence;
C. receiving the evidence of affidavits;
D. requisitioning any public record or a copy there of from any court or office;
E. issuing commissions for the examination of witness or documents.

2. The Commission shall also have the power to require any person including Government
Officials subject to any privilege which may be claimed that person under lawbj for the time
being in force, to furnish information on such points or matters as in the opinion of the
Commission may be useful for, or relevant to, the subject matter of enquiry.

3. The Commission shall be deemed to be a civil court and when any such offence, as is
described in Section 175, Section 178, Section 179, Section 180 or Section 228 of the Indian
Penal Code (Central Act 45of 1860), is committed in the view or presence of the Commission,
the Commission may, after recording the facts constituting the offence and the Statement of the
accused as provided for in the code of Criminal Procedure, 1973(Central Act 2 of 1974), forward
the case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such
case is forwarded shall proceed to hear the complaint against the accused as if the case had been
forwarded to him under Section 346 of the Code of Criminal Procedure, 1973.

4. Any proceeding before the Commission shall be deemed to be a judicial proceeding within the
meaning of Section 193 and Section228 of the Indian penal Code, 1860(Central Act 45 of 1860).

5. Similar provisions are made in the Kerala Municipality Act 1994 also under Section 196.

Changes In The Composition From Time To Time

The Constitution makers left it to the President to decide whether the Election Commission
should be a single member body or a multi—member body, depending upon the exigencies of
work in the Commission. Since, under the Constitution, the President functions on the aid and
advice of the council of ministers, thus, in effect, it is the council of ministers headed by the
Prime Minister which ultimately decides about the composition of the Election Commission.

Since the time of inception the Election Commission worked as a single member body consisting
of only the Chief Election Commissioner. However, on 7 October 1989, the President, in
exercise of the powers under art 324(2), decided to make the Election Commission a multi—
member body and, by a notification issued on that day, fixed, until further orders, the number of
election commissioners at two (besides the Chief Election Commissioner). By a further
notification on 16 October 1989, the President appointed Shri SS Dhanoa and Shri VS Seigell as
the two election commissioners from the afternoon of that day. On the same day, by another
notification issued in exercise of the powers conferred by aft 324(5), the President made rules to
regulate the uomliiions of service and tenure of office of the election commissioners. . These
conditions laid down, among other things, that an election commissioner shall hold office for a
term of five years or until he retains the age of 65 years, whichever happens earlier.

However, on 1 ]anuary 1990, the President was pleased to convert the Election Commission
again into a single member body and rescinded both the notifications dated 7 and 16 October
1989, whereby he had fixed the number of election commissioners at two, and appointed Shri SS
Dhanoa and Sh VS Seigell as the election commissioners.

Shri Dhanoa challenged this decision of the President before the Supreme Court, contending,
inter alia, that, once appointed, an election commissioner continued in office for his full tenure as
determined by rules under art 324(5) and that the President had no power to cut short the tenure
so fixed. It was also urged that the Election Commission being an independent body, its
independent functioning could not be eroded in any manner by removing the two election
commissioners.

A Division Bench of the Supreme Court (MH Kania and PB Sawant ) rejected the contentions of
Shri Dhanoa and dismissed his petition, by its decision dated 24 ]uly 1991.[8] The Supreme
Court held, on merits, that there was no need for the posts of the election commissioners `at the
time the appointments were made, and that in the absence of a clear definition of their role in the
Commission, particularly, vis-a-vis the Chief Election Commissioner, the abolition of the posts,
far from striking at the independence of the Commission, paved the way for its smooth and
effective functioning. The Supreme Court further observed that the creation and abolition of
posts is the prerogative of the executive, and art 324(2) leaves it to the President to fix and
appoint such number of election commissioners as he may from time to time determine. The
power of the President to create the posts is unfettered, so is his power to reduce or abolish them.
With the abolition of the posts, the service rules pertaining to those posts also ceased to have
effect and, therefore, the petitioner could not validly claim to continue for the full tenure as fixed
by those service rules.

The Division Bench of the Supreme Court also observed that the framers of the Constitution did
not appear to give the same status to the election commissioners as that of the Chief Election
Commissioner and that the latter did not appear to be primus inter partes, i.e, first among the
equals, but was intended to be placed in a distinctly higher position.

Apparently it was as a sequel to these observations of the Supreme Court that Parliament enacted
the Chief Election Commissioner and other Election Commissioners (Conditions of Service) Act
1991. By this Act, as aforesaid, the tenure of the Chief Election Commissioner and election
commissioners, if appointed, was fixed as six years, but the Chief Election Commissioner was to
retire at the age of 65 years and was given the salary and other perquisites equal to that of a judge
of the Supreme Court, and the election commissioners were to retire at the age of 62 years and
were to be given the salary and other benefits as are available to a judge of a high court.

Shri TN Seshan, the then Chief Election Commissioner, challenged before the Supreme Court,
the above decision of the President to make the Election Commission a multi—member body
and the appointment of the two election commissioners as mala fide, alleging that the intention
behind the move was to sideline him and to erode his authority so that the ruling party at the
Centre could extract favourable orders by using the services of newly appointed election
commissioners. He also questioned the constitutional validity of the above-mentioned
amendments as made by the aforesaid 1993 Ordinance, on the ground that the same were
inconsistent with the scheme underlying art 324 and that Parliament had no power to frame rules
for transaction of business of the Election Commission.

By further order dated 15 December 1993, the matter was referred to a Constitution Bench, as it
involved interpretation of art 324. The Constitution Bench of the Supreme Court (AM Ahmadi
CJI, ]S Verma, NP Singh, SP Bharucha and MK Mukherjee however, dismissed all the above
petitions by a unanimous decision[9] on July 14 1995, disagreeing with some of the observations
of the division bench in Dhanoa's case[10].

The Supreme Court, dismissing the above petitions, held that the scheme of art 324 is that the
Election Commission can either be a single member body or a multi—member body, if the
President considers it necessary to appoint one or more election commissioners. The argument
that a multi- member Election Commission would be unworkable and should not, therefore, be
appointed could not be accepted as that would tantamount to destroying or nullifying ell (2) and
(3) of art 324. By aft 324(1), the Constitution makers entrusted the task of conducting elections
in the country to the Election Commission and not to an individual. The Commission discharges
a public function.
The election commissioners form part of the Commission and, therefore, they must have a say in
decision making. If the Chief Election Commissioner is considered to be superior in the sense
that his word is final, he would render the election commissioners non—functional or
ornamental. Such an intention is difficult to cull out from art 324 and it is not possible to accept
the argument that the function of the election commissioners is only to tender advice to the Chief
Election Commissioner. The Chief Election Commissioner does not enjoy a status superior to
election commissioners, only because the first proviso to cl (5) of Art 324 lays down that
conditions of service of the Chief Election Commissioner cannot be varied to his disadvantage
after his appointment and because such protection is not extended to the election commissioners.

Similarly, the protection given to the Chief Election Commissioner in the matter of his removal
from office in like manner and on the like grounds as of a Judge of the Supreme Court and the
absence of such protection to election commissioners, who can be removed on the
recommendation of the Chief Election Commissioner, is not an indicia for conferring a higher
status on the Chief Election Commissioner. The provision that the election commissioners can be
removed only on the recommendation of the Chief Election Commissioner does not make them
subordinate to the latter, but is intended to ensure their independence and that they are not at the
mercy of the political and executive bosses of the day. This check on the executives power to
remove, is built to safeguard the independence of not only these functionaries, but the Election
Commission as a body.

The Chief Election Commissioner cannot exercise his power to recommend the removal of the
election commissioners as per his whim and caprice, and has to exercise this power only when
there exist valid reasons, which are conducive to efficient functioning of the Commission, as
otherwise he would become an instrument of oppression and destroy the independence of the
election commissioners. As art 324 envisages the Election Commission to be a permanent body
to be headed by a permanent incumbent, namely, the Chief Election Commissioner, in order to
preserve and safeguard his independence, he has to be treated differently, as there cannot be an
Election Commission without a Chief Election Commissioner. But that is not the case with the
other election commissioners who are not intended to be permanent incumbents. lf the
Commission is a single member body, the Chief Election Commissioner is the alter ego of the
Commission and no more. And if it is a multi—member body, he is obliged to act as its
Chairman.

Further, the Supreme Court proceeded to observe that the function of the Chairman would be to
preside over meetings, preserve order, conduct the business of the day, ensure that precise
decisions are taken and correctly recorded and do all that is necessary for smooth transaction of
business. The Supreme Court also upheld the power of Parliament to make provisions for the
transaction of business of the Election Commission under cl. (2) and (5) of arts 324, 327 and 328
and Entry 72 of List I of the Seventh Schedule to the Constitution. The Supreme Court also
observed that even if it is assumed that the Commission alone was competent to lay down how it
would transact its business, it would be required to follow the same pattern of decision-making
by the rule of majority as has been set out in the impugned law. The Supreme Court saw no merit
in the allegations of mala fide against the government and rejected them.

Thus, the Election Commission is now functioning, since 1 October 1993, as a three-member
body comprising the Chief Election Commissioner and two election commissioners. The
Election Commission, in its views on electoral reforms as communicated to the Government of
India in July 1998 and reiterated in July 2004, has expressed satisfaction with the present set up
and recommended that its strength may be permanently fixed at three. The Commission has
further recommended that the election commissioners should also be extended the same
protection under the Constitution in the matter of their conditions of service and removability
from office as is available to the Chief Election Commissioner.

Functions of The Election Commission

The primary function of the Election Commission entrusted to it by the Constitution is the
superintendence, direction and control of the preparation of the electoral tolls for, and conduct of
elections, to Parliament and to the legislature of every State, and also of elections to the offices
of the President and Vice-President of India [Art 324(1)]. Originally, the Constitution also vested
in the Election Commission the responsibility of appointment of election tribunals for the
decision of doubts and disputes arising out of or in connection with elections to Parliament and
to the legislatures of the States [Art 324(1), as originally enacted].

However, on the recommendation of the Election Commission in its Report on the third general
elections held in 1962, the trial of election petitions was entrusted to the High court’s and the
institution of election tribunals was abolished, as the experience showed that the disposal of
election petitions was getting inordinately delayed because even the interlocutory orders of the
tribunals were subject to appeal to the High Courts. Accordingly, Art 324(1) was amended by the
Constitution (Nineteenth Amendment) Act 1966, to relieve the Commission of the Function of
appointing election tribunals.

Amplitude of Powers of Election Commission—Meaning of ` Superintendence, Direction and

Control What is the amplitude of powers and width of functions of the Election Commission
under Art 324 came to be considered by the Supreme Court in Mohinder Singh Gill and Anor v.
Chief Election Commissioner and Ors[12]. In this case, the Election Commission had declared
the poll taken in Firozepur parliamentary constituency in the State of Punjab at the time of the
1977-general election to the House of the People as void, on the basis of certain complaints.

The petitioners contended that the Election Commission under the enacted law could only direct
fresh poll at the polling stations where the poll was allegedly vitiated, and not in the entire
parliamentary constituency. The Supreme Court rejected the contention of the petitioners. A
Constitution Bench of the Supreme Court held that art 324 is a plenary provision vesting the
whole responsibility for national and State elections in the Election Commission and the words
(superintendence, direction and control’ used in Art 324 are the broadest terms.

The responsibility of superintendence, direction and control of the conduct of elections may
cover powers, duties and functions of many sorts, administrative or other depending upon the
circumstances. Article 324, on the Face of it, vests vast functions in the Commission which may
be powers or duties, essentially administrative, and marginally, even judicative or legislative.
Two limitations are atleast are, however, laid on its plenary character in the exercise of its
powers. First, when parliament or any State legislature has made valid law relating to or in
connection with relations , the commission shall act in conformity with, not in violation of, such
law.

But where such law is silent, Art 324 is a reservoir of power for the Commission to act for the
avowed purpose of pushing forward, but not divorced from, a free and fair election with
expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and
be amenable to the norms of natural justice in so far as conformance to such canons can
reasonably and realistically be required of it as fair play-in- action in a most important area of the
constitutional order, namely; Elections. The Supreme Court also observed in that case that arts
327 and 328 which empower Parliament to make laws with regard to electoral matters are
subject to the provisions’ of the Constitution which include art 324. The Court observed that:

The framers of the Constitution took care to leaving scope for exercise of residuary power by the
Election Commission in its own right, as a creature of the Constitution, in the infinite variety of
situations that may emerge from time to time in such a large democracy as ours. Every
contingency could not be foreseen or anticipated with precision. That is why there is no hedging
in Art 324. The Commission may be required to cope with some situation which may not be
provided for in the enacted laws and the rules. That seems to be the raison d’etre for the opening
clause in Arts 327 and 328 which leaves the exercise of powers under Art 324 operative and
effective when it is reasonably called for in a vacuous area.

Where the existing laws are absent and yet a situation has to be tackled, the Chief Election
Commissioner has not to fold his hands and pray to God for divine inspiration to enable him to
exercise his functions and to perform his duties or to look to any external authority for the grant
of powers to deal with the situation. He must lawfully exercise his power independently, in all
matters relating to the conduct of elections, and see that the election process is completed
properly in a free and fair manner.

The nature and scope of the powers and functions of the Election Commission also came to be
considered by the Supreme Court in kanhiya Lal Omar V RK Trivedi and Ors[13]. In that case,
the validity of the Election Symbols (Reservation and Allotment) Order 1968, promulgated by
the Election Commission providing for the recognition of political parties as national or State
parties, determination of disputes between the splinter groups of such recognised political
parties, allotment of symbols to candidates , etc was called in question. It was contended that the
symbols order was legislative in character and could not have been promulgated by the
Commission, as the Commission is not empowered by law to issue such a legislative order.

The Supreme Court rejected the above contention, holding that the power to issue the Symbols
Order is comprehended in the powers of superintendence, direction and control of elections
vested in the Commission under art 324. If any of the provisions in the Symbols Order could not
be traced to the Representation of the People Act 1951, or the Conduct of Elections Rules 1961,
it could easily be traced to the reservoir of power under art 324(1), which empowers the
Commission to issue all directions necessary for the purpose of conducting smooth, fair and free
elections.

In AC Jose v Sivan Pillai and Ors[14] the Supreme Court, however, held that when there is no
parliamentary legislation or rule made under the said legislation, the Commission is free to pass
any order in respect of the conduct of elections, but where there is an Act and express rules made
there under, it is not open to the Commission to override the Act or the rules, and pass orders in
direct disobedience to the mandate contained in the Act or rules.

The powers of the Commission are meant to supplement rather than supplant the law in the
matter of superintendence, direction and control as provided by aft 324. Where a particular
direction by the Commission is submitted to the government for approval as required by the
rules, it is not open to the Commission to go ahead with implementation of it at its own sweet
will even if the approval of the government is not given. In that case, the Supreme Court struck
down the Commission’s order, as being without jurisdiction, whereby the Commission had
introduced the electronic voting machines in an election without any express provision in the Act
and the rules which then contemplated the taking of poll only by means of ballot papers and
ballot boxes.

In Common Cause v Union of India and Ors[15], the Supreme Court held that the expression
°conduct of election° in art 324 of the Constitution is wide enough to include in its sweep, the
power of the Election Commission to issue——in the process of the conduct of elections—
directions to the effect that the political parties shall submit to the Commission for its scrutiny,
the details of the expenditure incurred or authorised by the political parties in connection with
the election of their respective candidates.

Summing up the amplitude of powers of the Election Commission under Art 324, the Supreme
Court held in Union of India v association for Democratic Reforms and Ors[16].

(1) The jurisdiction of the Election Commission is wide enough to include all powers necessary
for smooth conduct of elections and the word ‘elections’ is used in a wide sense to include the
entire process of election which consists of several stages and embraces many steps.

(2) The limitation on plenary character of power is when the Parliament or State Legislature has
made a valid law relating to or in connection with elections, the Commission is required to act in
conformity with the said provisions. In case where law is silent, art 324 is a reservoir of power to
act for the avowed purpose of having free and fair election. Constitution has taken care of
leaving scope for exercise of residuary power by the Commission in its own right as a creature of
the Constitution in the infinite variety of situations that may emerge from time to time in a large
democracy as every contingency could not be foreseen or anticipated by the enacted laws or the
rules.

By issuing necessary direction, Commission can fill the vacuum till there is legislation on the
subject. In Kanhiya Lal Omar’s case[17], the Court construed the expressions ‘superintendence,
direction and control` in Art 324 (1) and held that a direction may mean an order issued to a
particular individual or a precept which may have to follow and it may be a specific or a general
order and such phrase should be construed liberally empowering the election commission to
issue such orders.

Other Important Functions Of The Election Commission Under The Constitution Of India
Apart from the above primary function, the Constitution has also entrusted the Election
Commission with another important duty of advising the President and the governors in the
matter of disqualification of sitting members of Parliament and of State legislatures, on all
grounds other than the ground of defection (Arts 103 and 192). If any question arises whether
any sitting member of Parliament or of a State legislature has become subject to any
disqualification for continuing as such member under the Constitution (other than on the ground
of defection) or under any law, such question is decided by the President, in the case of a
member of Parliament, and by the governor, in the case of a member of State legislature [Arts
103(l) and 192(1)].

Before deciding such question, the President or, as the case may be, the governor is obliged to
refer the matter to the Election Commission for its opinion and act according to such opinion.
The Supreme Court has held in Brundaben Nayak v Election Commission of India and Anor[18]
that the President and the governors are bound by the opinion of the Election Commission in
such matters and they are not required even to consult their council of ministers.

The apex court observed in Shamsher Singh v. State of Punjab[19] that the actual adjudication
has to be made by the Election Commission, which binds the government, and the President and
governors merely append their signature to the order in regard to such decision.

The Rajasthan High Court held in Nand Lal Sharma v. Election Commission[20] that there is no
requirement for opportunity to be given to the person who raised the question or to the member
concerned by the President or governor before acting on the opinion of the Commission.

But the jurisdiction of the President or the governors and of the Election Commission arises only
in those cases where a sitting member of Parliament or of a State legislature has become subject
to disqualification after his election, that is to say, a post-election disqualification. If a member
was subject to any disqualification at the time o£ or prior to, his election, such question cannot
be considered and decided by the President or governor, and the Election Commission also
cannot make any enquiry into such matter, even if such disqualification subsists after the
election.[21]Such question of pre-election disqualification can be raised only in an election
petition and not before the President or the governor.

There is, however, a gap in the provisions of the Constitution in that there is no authority
prescribed under the Constitution or under the law to go into the question of a pre—election
disqualification which subsists even after the election, but which has not been questioned by
filing an election petition within the period prescribed for filing such petitions. The Election
Commission has pointed out this lacuna in some of its opinions tendered to the President and the
governors of certain States, but the constitutional position continues to be the same.

In another matter relating to the alleged disqualification of Km Jayalalitha, the then Chief
Minister of Tamil Nadu, referred to the Commission by the Governor of Tamil Nadu in March
1993, a single judge of the Madras High Court struck down the notice issued by the Commission
to Km Jayalalitha, holding that she had not incurred any disqualification on the grounds
mentioned in the petition on the basis of which the reference was made by the governor to the
Commission.[22] On appeal, however, the Division Bench of the High Court set aside the order
of the single judge, holding that such question could be decided only by the governor on the
opinion of the Election Commission and not by the high court.

In the above referred case of Km Jayalalitha, another important issue relating to the Election
Commissions jurisdiction also came to be decided. It was contended by Km ]ayalalitha before
the Madras High Court that the then Chief Election Commissioner should not adjudicate the
matter, because she apprehended that the Chief Election Commissioner might be biased in favour
of the complainant before the governor, as the wife of the complainant was acting as the counsel
for the Chief Election Commissioner in a private litigation instituted by him before the Delhi
High Court.

At that time, the Election Commission was a single-member body wholly constituted of the
Chief Election Commissioner and a plea was raised on behalf of the Commission that under the
doctrine of necessity, the matter had necessarily to be adjudicated by the Chief Election
Commissioner. The single judge of the Madras High Court accepted the contention of Km
jayalalitha on 2 ]uly 1993 and directed the Chief Election Commissioner to recuse himself from
dealing with the matter, and observed that the President could consider to appoint some
additional election commissioners to deal with the matter. The matter was taken to a Division
Bench of the high court[23]. The Division Bench also agreed with the single judge.
By that time, the Election Commission had already become a multi- member body on I October
1993 with the appointment of two election commissioners. The Division Bench observed that it
was now open for the multi—member body, while regulating the procedure for transaction of its
business, to allocate this case to any one of the two Election Commissioners or to both of them.
The matter was still further agitated before the Supreme Court. The Supreme Court also directed
the Chief Election Commissioner to recuse himself from adjudicating the matter and to leave it
to be decided by the two election commissioners. The Supreme Court, however, added that if
there was difference of opinion between the two election commissioners, the Chief Election
Commissioner may also then give his opinion, as the doctrine of necessity would then apply to
the facts and circumstances of the case .

Other Functions Of Election Commission Under The Law

The Election Commission has also been vested with another advisory jurisdiction under the law.
If a person is found guilty of a corrupt practice at an election either by a high court in an election
petition or by the Supreme Court in an election appeal, the President decides the question
whether such person should be disqualified for contesting future elections and, if so, for what
period [Section 8A(1), 1951 Act]. Before deciding such question, the President obtains the
opinion of the Election Commission and acts according to such opinion, as in the case of the
post-election ‘ disqualification of sitting members of Parliament [S. 8A(3) ]. Thus, though the
order is issued by the President, it is in fact the Election Commission which decides the basic
issue of disqualification in such matters. _ The maximum period for which the disqualification
can be imposed in such cases is six years from the date the order of the high court or, as the tense
may he, of the Supreme Court takes effect [proviso to s 8A(1)].

`Here, it deserves to be noted that it is the President who decides the question of disqualification
of all persons found guilty of corrupt practices, irrespective of whether the election pertained to
Parliament or to a State legislature.3l Prior to 1975, a person found guilty of a corrupt practice at
an election was automatically disqualified for a period of six years from the date the order of the
Supreme Court or the high court finding him guilty took effect.
However, the law was amended by the Election Laws (Amendment) Act 1975, to provide that
there shall be no automatic disqualification in such cases, and the question and the period of
disqualification shall be decided by the President on the basis of the opinion of the Election
Commission. It was provided that the case of every such person found guilty of a corrupt
practice would be referred to the President by such authority as may be specified by the Central
Government, and that the President shall thereupon refer the matter to the Election Commission
for its opinion. Pursuant thereto, the Central Government has specified the Secretary General of
the House of the People or the Secretary General of the Council of States as such referring
authority, if the election at which the person concerned has been found guilty related to the
House of the People or, as the case may be, to the Council of States. Likewise, in the case of a
person found guilty at an election to the legislative assembly or the legislative council of a State,
the specified authority is the Secretary of the House concerned.

It has, however, been observed that there is always a time lag between the date on which the
order of the high court or the Supreme Court takes effect, the date on which the matter is referred
by the aforesaid specified authority to the President, and the ultimate date on which the President
decides the question on the opinion of the Election Commission. During this intervening period,
the person concerned cannot be said to be disqualified under the law, as the disqualification will
be visited upon the person concerned only when the President decides the question. In one case
relating to the Bihar legislative assembly, the reference from the Secretary to the Bihar
legislative assembly was itself made to the President after nearly five years from the date of the
order of the Supreme Court, finding a member of that assembly guilty of corrupt practice.

As a result, the person concerned suffered disqualification for less than a year. The Goswami
Committee on Electoral Reforms recommended in its report in May 1990, that the law may be
amended to restore the position as obtaining before 1975 providing for automatic disqualification
of the person concerned for a period of six years from the date of the order of the court. The
Election Commission has, however, expressed the view that the period of disqualification should
be commensurate with the gravity of corrupt practice committed and, therefore, there should not
be automatic disqualification for six years in all cases. Under the existing law, the Commission
tenders its opinion to the President after hearing the person concerned in regard to the tvvo-fold
question, whether, first, he should be disqualified at all and, if so, for what period.
Quasi Judicial Functions Of The Election Commission

Apart from the above advisory jurisdiction, the Election Commission has another important
function to perform under the law. All associations or bodies of individual citizens calling
themselves as political parties and wishing to contest elections under the name and banner of a
political party have to get themselves registered with the Election Commission (s 29A, 1951
Act). Such function of registration of political parties by the Election Commission has been held
by the Supreme Court to be a quasi-judicial function of the Commission[25].

Such registered political parties, if they fulfill certain criteria fixed by the Election Commission
on the basis of their poll performance, are further recognised by the Commission either as
national or State parties, under the provisions of the Election Symbols (Reservation and
Allotment) Order 1968, promulgated by the Commission. If any split takes place in any such
recognised national or State party and there are two or more rival or splinter groups of the party
each claiming to be that party, it is the Election Commission which decides under para 15 of the
Symbols Order as to which of these rival or splinter groups is the party[26].

Again, if any of such recognised national or State parties merge with other parties, whether
recognised or unrecognised, it is the Election Commission which determines whether there has
been a valid merger of such parties, and whether on such merger, the parties so merging should
be recognised as national or State parties and which election symbols should be reserved for
them. The Supreme Court has held that while deciding such disputes, the Election Commission
exercises the judicial power of State and is deemed to be a quasi-judicial tribunal against whose
decision an appeal shall straightway lie to the Supreme Court under its appellate jurisdiction
under Art 136.

Judicial Review

The decisions of the Commission can be challenged in the High Court and the Supreme Court of
the India by appropriate petitions. By long standing convention and several judicial
pronouncements, once the actual process of elections has started, the judiciary does not intervene
in the actual conduct of the polls. Once the polls are completed and result declared, the
Commission cannot review any result on its own. This can only be reviewed through the process
of an election petition, which can be filed before the High Court, in respect of elections to the
Parliament and State Legislatures. In respect of elections for the offices of the President and Vice
President, such petitions can only be filed before the Supreme Court.

“Election Commission of India Gets Political Infection, Democracy at Receiving End”

New Delhi (ABC Live): The Election Commission has its great relevance in implementing
democracy in very form of governance. According to constitution the fairness in actions and
neutrality in its mind are made mandatory elements.

New Delhi (ABC Live): The Election Commission has its great relevance in implementing
democracy in every form of governance. According to constitution of India, the fairness in
actions and neutrality in its mind are made mandatory elements.

The Election Commission of India is now a day missing both of mandatory elements in its
actions and mind. The commission has been divided into political blocks.

The Chief Election Commissioner/ Election Commissioners are openly seen as political agents of
political parties. The tussle which came into public light, when on January 31, CEC N
Gopalaswami sent a recommendation letter to President Pratibha Patil against election
commissioner Navin Chawla for his removal, which later Indian government denied to accept. It
was open secret in top political circles that who owns whose loyalty in EC.

This Recommendation letter has thrown Indian elections holding statuary body into deep well,
Where all political parties are nude. It is interesting to know about the reasons, N Gopalaswami
quoted in his recommendation to remove Navin Chawla, election Commissioner, who is
considered very close to congress party high command.
According to information with ABC Live the first serious allegation which CEC has leveled
against Chawla that, he sneaks election commission’s top secret decisions to his political masters
in Congress party.

To support his allegation Gopalaswami wrote in his letter to President of India that usually
during full bench Election Commission meetings to take crucial decisions on poll maters, Navin
Chawla tries to take excuses like wash room urgency to leak decisions.

CEC further to substance his allegation against election Commissioner has given two incident
which showed that he conveyed each and every information of EC to his master in Congress
party on routine basis.

According to first incident quoted in CEC recommendation regarding Gujarat elections in 2007,
when decision was inside Commission on holding elections in three or two phase, where N
Gopalaswami supported three phases’ elections and Chawla opposed it, where as Indian Home
ministry had also made arrangements of central paramilitary forces for three phases.

The Information was passed on to Congress party Bosses by Chawla on the issue which than
called EC, asking why elections in Gujarat could not held in two phases, even than it was not
officially announced by EC yet and decision was still with EC. Finally in case Indian
government agreed to arrange central paramilitary forces and polls were conducted in two phases
as desired by EC Chawla and its political bosses.

The second case which CEC has pointed out against Chawla on scheduling of Karnataka polls in
May 2008, where eroded EC tried to postpone as per wishes of Congress party opposing CEC
and the third election commissioner, SY Quraishi without any substantial reasons.’

Chawla Saved Sonia Gandhi? Further N Gopalaswami charged Navin Chawla that he used his
chair to save Congress party President, Sonia Gandhi as he had taken 'suo motu' decision on a
complaint seeking her disqualification for accepting a Belgian honor to ask ministry of external
affairs comment of the issue.

After much of deliberation EC issued notice to Sonia Gandhi, which she has replied but as
Chawla is looking the case, still undecided on the complaint.

Know About Navin Chawla

Navin Chawla is an IAS officer of the 1969 batch was appointed on 16 May 2005 as election
commissioner in 2005; his term will extend till 30 July 2010. At time of Indian Emergency (1975
- 77) he was secretary to the Lieutenant Governor of Delhi.

The Shah Commission probed Emergency causes and cases indicted Mr Chawla as unfit to hold
any public office due to his role played during Emergency as secretary to the Lieutenant
Governor of Delhi.

Chawla’s Name figured once again when news reported that the Jaipur-based Lala Chaman Lal
Education Trust run by his wife Rupika has got funds under MPLADS from different MPs A.A.
Khan,R.P. Goenka, Ambika Soni, Dr Karan Singh and Mr A.R. Kidwai.

Navin Chawla Got Italy’s Mazzini award in 2005

In March 2005, Chawla has got Mazzini award by the Government of Italy in recognition of his
efforts to forge a new relationship with Italy and strengthening existing bonds.

Electoral Reforms In India:

Proactive Role Of Election Commission

One of the most important features of a democratic polity is elections at regular intervals.
Elections constitute the signpost of democracy. These are the medium through which the
attitudes, values and beliefs of the people towards their political environment are reflected.
Elections grant people a government and the government has constitutional right to govern those
who elect it. Elections are the central democratic procedure for selecting and controlling leaders.
Elections provide an opportunity to the people to express their faith in the government from time
to time and change it when the need arises. Elections symbolize the sovereignty of the people
and provide legitimacy to the authority of the government. Thus, free and fair elections are
indispensable for the success of democracy.

In continuance of the British legacy, India has opted for parliamentary democracy. Since 1952,
the country has witnessed elections to the legislative bodies at both the national as well as State
levels. The electoral system in India is hamstrung by so many snags and stultifying factors. Such
maladies encourage the anti-social elements to jump into the electoral fray. Our system was
largely free from any major flaw till the fourth general elections (1967). The distortions in its
working appeared, for the first time, in the fifth general elections (1971) and these got multiplied
in the successive elections, especially in those held in the eighties and thereafter. [Dash 2006:
50] Many a time, the Election commission has expressed its concern and anxiety for removing
obstacles in the way of free and fair polls. It has had made a number of recommendations and
repeatedly reminded the government the necessity of changing the existing laws to check the
electoral malpractices. The Tarkunde Committee Report of 1975, the Goswami Committee
Report of 1990, the Election commission’s recommendations in 1998 and the Indrajit Gupta
Committee Report of 1998 produced a comprehensive set of proposals regarding electoral
reforms. A number of new initiatives have been taken by the Election commission to cleanse the
electoral process in India. The important among these are being discussed here.

Model Code of Conduct

The Election Commission of India is regarded as guardian of free and fair elections. In every
elections, the EC issues a Model Code of Conduct for political parties and candidates to conduct
elections in a free and fair manner. The Commission circulated its first Code at the time of the
fifth general elections, held in 1971. Since then, the Code has been revised from time to time.
The Code of Conduct lays down guidelines as to how political parties and candidates should
conduct themselves during elections.

A provision was made under the Code that from the time the elections are announced by the
Commission, Ministers and other authorities cannot announce any financial grant, lay foundation
stones of projects of schemes of any kind, make promises of construction of roads, carry out any
appointments in government and public undertakings which may have the effect of influencing
the voters in favour of the ruling party.

Recently, the Punjab Government, which announced the budget for 2008-2009, did not propose
any new concessions, because the Code of Conduct was in force for the May 2008 Panchayat
elections[28]. However, the Punjab Congress leveled serious allegations against the ruling SAD-
BJP alliance for misusing government vehicles and making certain announcements, thereby
violating the Model Code of Conduct. [The Tribune: 2008]

Despite the acceptance of the Code of Conduct by political parties, cases of its violation have
been on the rise. It is a general complaint that the party in power at the time of elections misuses
the official machinery to further the electoral prospects of its candidates.

The misuse of official machinery takes different forms, such as issue of advertisements at the
cost of public exchequer, misuse of official mass media during election period for partisan
coverage of political news and publicity regarding their achievements, misuse of government
transport including aircraft/helicopter, vehicles. For example, during the 2003 Himachal Pradesh
Assembly elections, the Commission had issued strict instructions to the political parties to
abstain from the use of plastic and polythene for the preparation of posters and publicity
material.

But the political parties, particularly the Bharatiya Janata Party and the Bahujan Samaj Party, put
up a large number of saffron and green publicity flags made of polythene. [The Tribune: 2003]
During the 2002 Punjab Assembly elections, an aggressive advertisement campaign was
launched by the Congress against Chief Minister Parkash Singh Badal and his son, accusing
them of corruption and bartering away the interests of Punjab.

The Akali Dal hit back with its own set of equally aggressive advertisements against the
Congress leaders. [Prashar: 2002] The Election commission of India had to intervene to clarify
that under the Model Code of Conduct, personal allegations against individual leaders were not
allowed, though criticisms of policy decisions and performance were permitted. Similarly, the
EC also held Narendra Modi and Sonia Gandhi responsible for violation of the Model Code of
Conduct by making controversial remarks during elections campaign in the 2007 Gujarat
Assembly polls.

The EC expressed its severe displeasure over its violation by the two leaders and expected that
both of them in future would adhere to the salutary provisions of the Code in letter and spirit.
[The Financial Express: 2007] Despite sincere efforts on the part of the EC to check
malpractices, in each and every elections India witnesses violation of the Model Code of
Conduct.

In June 2002, the EC on the direction of the Supreme Court, issued an order under Article 324
that each candidate must submit an affidavit regarding the information of his/her criminal
antecedents; assets (both movable and immovable) of self and those of spouses and dependents
as well; and qualifications at the time of filing his/her nomination papers for elections to the Lok
Sabha, the Rajya Sabha and the State Legislative Assemblies.

But political parties believed that the Election commission and the judiciary were overstepping
their powers. At the all-party meeting, held on July 8, 2002, representatives of 21 political parties
decided that the Election commission’s order should not be allowed to be implemented. The
Supreme Court again came out as a guardian of the citizen’s right to information.

The Apex Court gave its judgment on March 13, 2003, basically asserting its previous June 2002
decision, which required full disclosure by all candidates. The order made it clear that failing to
furnish the relevant affidavit shall be considered as a violation of the Supreme Court’s order and
as such the nomination papers shall be liable to be rejected by the Returning Officer. Furnishing
of wrong or incomplete information shall result in the rejection of nomination papers, apart from
inviting penal consequences under the Indian Penal Code. The 2004 General Elections were
conducted under these rules.

The above order is an effective step to make democracy healthy and unpolluted. Citizens have
every right to know about the persons whom they prefer as their representatives. The EC has
directed all Returning Officers to display the copies of nomination papers and affidavits filed by
candidates to the general public and representatives of print and electronic media, free of cost.

Registration of Political Parties:

The party system is an essential feature of parliamentary democracy. However, there is no direct
reference of political parties in the Constitution of India. The statutory law relating to registration
of political parties was enacted in 1989 which was quite liberal. As a result, a large number of
non-serious parties mushroomed and got registered with the Commission. Many of them did not
contest elections at all after their registration. It led to confusion among electors as to whom to
vote.

To eliminate the mushrooming of parties, the EC had to take some rigorous steps. The
Commission now registers a party which has at least 100 registered electors as its members and
is also charging a nominal processing fee of Rs 10,000 to cover the administration expenses
which it will have to incur on correspondence with the parties after their registration.[30]
In order to ensure that the registered political parties practice democracy in their internal
functioning, the Commission requires them to hold their organizational elections regularly in
accordance with their constitutions. The measures taken by the Election commission to
streamline the registration of political parties have shown effective results. These have lessened
the headache of the administrative machinery, as well as confusion of the electorate.

Checking Criminalization of Politics

Criminalization of politics is a grave problem in India. This menace began in Bihar and gradually
spread to every nook and corner of the nation. In 2003, a law was introduced to prohibit the
election of criminals to the legislative bodies. However, persons with criminal background
continue to hold seats in Parliament and State Assemblies. This leads to a very undesirable and
embarrassing situation when law-breakers become law-makers and move around under police
protection. During the 13th Lok Sabha elections candidates having criminal cases against them
numbered 12 in Bihar and 17 in Uttar Pradesh. It has been rightly observed by J.P.Naik: “Power
is the spoiler of men and it is more so in a country like India, where the hungry stomachs
produce power hungry politicians.”

The EC has expressed its serious concern over the entry of anti-social and criminal persons into
the electoral arena. From time to time, it has set down norms and made recommendations to the
government to curb the menace of criminalization of politics. The Commission has urged all
political parties to reach a consensus that no person with a criminal background will be given the
party ticket.

The candidates to elections are also obliged to submit an affidavit in a prescribed form declaring
their criminal records, including convictions, charges pending and cases initiated against them.
The information so furnished by the candidates shall be disseminated to the public, and to the
print and electronic media.

Limits on Poll Expenses:

To get rid of the growing influence and vulgar show of money during elections, the EC has made
many suggestions in this regard. The Commission has fixed legal limits on the amount of money
which a candidate can spend during the elections campaign. These limits have been revised from
time to time. During 2004 elections, the ceiling limits for Lok Sabha seats varied between Rs 10,
00,000 to Rs 25, 00,000. For Assembly seats, the highest limit was Rs 10, 00,000 and the lowest
limit was Rs 5, 00,000. The EC, by appointing expenditure observers keeps an eye on the
individual accounts of election expenditure made by a candidate during election campaign. The
contestants are also required to give details of expenditure within 30 days of the declaration of
the election results. However, political parties do not adhere to the financial Lakashman Rekha
(limits) as huge amounts are spent by parties under the garb of their supporters.[31]
Apart from this, the EC is also in favour of holding the Lok Sabha and the Assembly elections
simultaneously, and to reduce the campaign period from 21 to 14 days. This, they feel, will lead
to trim down the election expenditure. The Election commission’s attempt to impose these
measures has been a move in the right direction.

Use of Scientific and Technological Advancements

The Election commission of India has been trying to bring improvements in election procedures
by taking advantage of scientific and technological advancements. The introduction of
‘electronic voting machines’ (EVMs) is one of the steps in that direction. The Election
commission has recommended the introduction of electronic voting machines with a view to
reducing malpractices and also improving the efficiency of the voting process.

On an experimental basis, the EVMs were first tried in the State of Kerala during the 1982
Legislative Assembly Elections. After the successful testing and long legal inquiries of the
technological aspects of the machines, the EC took a historic decision to go ahead and start the
use of EVMs for certain Assembly elections in November 1998. The Commission selected 16
Assembly constituencies in the States of Madhya Pradesh, Rajasthan and Union Territory of
Delhi.

Later, in the June 1999 Assembly elections, Goa became the first State to successfully use EVMs
in all its Assembly constituencies. In the 2004 Lok Sabha elections, the machines were used all
over the country. It is a major initiative taken by the EC to make the electoral process simple,
quick and trouble-free. It has saved money, solved several logistical issues and also contributed
to the conservation of environment through saving of paper. Another major advantage of these
machines is that the counting of votes becomes more fast and accurate. Now there are no invalid
and wasted votes at all, as every vote recorded in the machine is accounted for in favour of the
candidate for whom it was cast.

The Election commission has not lagged behind in making use of Information Technology for
efficient electoral management and administration. It launched a website of its own on February
28, 1998 [that is, www.eci.gov.in.]. This is now a good source to have accurate information
about elections, election laws, manuals and handbooks published by the Election commission.
During the 1999 Lok Sabha elections, the Commission’s Secretariat was directly connected with
nearly 1500 counting centres across the country. The round-wise counting results were fed into
the Commission’s website from those counting centres. These results were instantly available
throughout the world.

In order to bring as much transparency as possible to the electoral process, the media—both
electronic and print—were encouraged and provided with facilities to report on the actual
conduct of the poll and counting. They had, in cooperation with the State owned media
(Doordarshan and All India Radio) taken several innovative and effective steps to create
awareness among voters. All recognised national as well as State parties were allowed free
access to the State-owned media on an extensive scale for their election campaign. During the
2004 general elections, the total free time allocated to political parties was 122 hours.[32]
With a view to prevent impersonation of electors at the time of voting and to eliminate bogus and
fictitious entries into electoral rolls, the Election commission took a bold step. In 1998, it decided
to take a nationwide programme for the ‘computerisation’ of electoral rolls. The printed electoral
rolls as well as CDs containing these rolls are available to the general public for sale national and
State parties are provided these free of cost after every revision of electoral rolls. The entire
country’s electoral rolls are available on its website. Karnataka became the first State to prepare
electoral rolls with the photographs of voters in the 2008 elections.

The State EC developed the electoral roll management software called ‘STEERS’ (State
Enhanced Electoral Roll System) [The Hindu: 2008] to prevent duplication of voters lists and to
eliminate wrong addresses. The EC has decided to introduce photo electoral rolls for proper
verification of voters across the country by the 2009 general elections.

In an attempt to improve the accuracy of the electoral rolls and prevent electoral fraud, the
Election commission in August 1993 ordered the issuance of electors’ photo identity cards
(EPICs) for all voters. A modest attempt to introduce the photo identity cards was made for the
first time in 1978 at the instance of the then Chief Election commissioner, S.L. Shakdher, in the
case of elections to the Legislative Assembly of Sikkim. During the 2004 Assembly elections, it
was mandatory for people possessing EPICs to furnish it at the time of voting. People who did
not possess EPICs had to bring the proofs of identity as prescribed by the EC at the time of
voting [Rao 2004: 5438] during the 2007 Punjab Assembly elections, Parneet Kaur (MP from
Patiala), could not cast her vote till late afternoon as she had misplaced her voter card. [The
Tribune: 2007] The distribution of EPICs, on the part of Election commission, was a major step
to reduce electoral malpractices. Only genuine voters were listed in the rolls with the issuance of
voter identity cards.

Conclusion

Over the years, the Election Commission has conducted a number of laudable electoral reforms
to strengthen democracy and enhance the fairness of elections. These reforms are quite adequate
and admirable. Undoubtedly, the election machinery, under the aegis of the EC, deserves credit
for conducting elections in a free and fair manner. However, our system is still plagued by many
vices. To win votes, political parties resort to foul methods and corrupt practices. Such maladies
encourage the anti-social elements to enter the electoral fray. The problem is not lack of laws,
but lack of their strict implementation. In order to stamp out these unfair tendencies, there is a
need to strengthen the hands of the EC and to give it more legal and institutional powers. The EC
must be entrusted with powers to punish the errant politicians who transgress and violate the
electoral laws.

Our election commission tries its best to weed out the virus of malpractices. It is optimistic of
strengthening and improving the working of democracy through free and fair elections. It has
always devised better systems and is using advanced scientific technologies for maintaining the
high reputation of the Indian elections. However, the success of reforms will largely depend
upon the will of the political parties to adhere to and implement such reforms. An independent
media and an enlightened public opinion have no substitute in pushing through reforms. If
people vote according to their convictions and punish those who infract the rules, corrupt
practices will automatically disappear. And this will go a long way towards enabling democracy
to flourish and grow to its full capacity.

The Commission has taken several new initiatives in the recent past. Notable among these are, a
scheme for use of State owned Electronic Media for broadcast/telecast by Political parties,
checking criminalization of politics, computerization of electoral rolls, providing electors with
Identity Cards, simplifying the procedure for maintenance of accounts and filling of the same by
candidates and a variety of measures for strict compliance of Model Code of Conduct, for
providing a level playing field to contestants during the elections.

AMENDMENT

Amending the Constitution of India is the process of making changes to the nation's
fundamental law or supreme law. The procedure of amendment in the constitution is laid
down in Part XX (Article 368) of the Constitution. This procedure ensures the sanctity of the
Constitution of India and keeps a check on arbitrary power of the Parliament of India.

Article 368: Power of Parliament to amend the Constitution and Procedure therefor:

(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its

constituent power amend by way of addition, variation or repeal any provision of this
Constitution in accordance with the procedure laid down in this article.

(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for
the purpose in either House of Parliament, and when the Bill is passed in each House by a
majority of the total membership of that House and by a majority of not less than two-thirds
of the members of that House present and voting, it shall be presented to the President who
shall give his assent to the Bill and thereupon the Constitution shall stand amended in
accordance with the terms of the Bill:

(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for
the purpose in either House of Parliament, and when the Bill is passed in each House by a
majority of the total membership of that House and by a majority of not less than two-thirds
of the members of that House present and voting, it shall be presented to the President who
shall give his assent to the Bill and thereupon the Constitution shall stand amended in
accordance with the terms of the Bill:
the amendment shall also require to be ratified by the Legislatures of not less than one-half of
the States by resolutions to that effect passed by those Legislatures before the Bill making
provision for such amendment is presented to the President for assent.

(3) Nothing in Article 13 shall apply to any amendment made under this Article

.(4) No amendment of this Constitution (including the provisions of Part III) made or
purporting to have been made under this article whether before or after the commencement of
section 55 of the Constitution (42nd Amendment) Act, 1976 shall be called in question in any
court on any ground.
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever
on the constituent power of Parliament to amend by way of addition, variation or repeal the
provisions of this Constitution under this article.
PROCEDURE FOR THE AMENDMENT OF THE CONSTITUTION
As per the procedure laid out by article 368 for amendment of the Constitution, an
amendment can be initiated only by the introduction of a Bill in either House of Parliament.
The Bill must then be passed in each House by a majority of the total membership of that
House and by a majority of not less than two-thirds of the members of that House present and
voting.
There is no provision for a joint sitting in case of disagreement between the two Houses.
Total membership in this context has been defined to mean the total number of members
comprising the House irrespective of any vacancies or absentees on any account vide
Explanation to Rule 159 of the Rules of Procedure and Conduct of Business in Lok Sabha.
Necessity of Amending Provisions in the Constitution
Provisions for amendment of the constitution is made with a view to overcome the
difficulties which may encounter in future in the working of the constitution. The time is not
static; it goes on changing .The social, economic and political conditions of the people go on
changing so the constitutional law of the country must also change in order toward it to the
changing needs, changing life of the people. If no provisions were made for amendment of
the constitution, the people would have recourse to extra constitutional method like
revolution to change the constitution.
The framers of the Indian constitution were anxious to have a document which could grow
with a growing nation, adapt itself to the changing circumstances of a growing people. The
Constitution has to be changed at every interval of time. It is because of this reason that the
provision relating to amendment was added into Constitution.
Whether the fundamental rights can be amended ?
Shankari Prasad v.Union of India: AIR 1951 SC 458
Sajjan Singh Vs. State of Rajasthan
AIR 1965 SC 845
GOLAKNATH Vs. STATE OF PUNJAB,
(1967) 2 SCR 762
KESHVANAND BHARTI VS. STATE OF KERALA
AIR 1973 SC 1461 (the basic structure doctrine)
Minerva Mills Case
Indira Nehru Gandhi v. Raj Narayan, AIR 1975 SCC 2299
Shankari Prasad v.Union of India: AIR 1951 SC 458
In this case first time the question whether fundamental rights can be amended under Article
368 came for consideration of the Supreme Court. In that case the Validity of the First
Constitutional Amendment which added Article 31-A and 31-B of the Constitution was
challenged.
It was contended that though it may be open to Parliament to amend the provisions in respect
of the fundamental rights, the amendments, would have to be tested in the light of the
provisions contained in Art.13(2) of the Constitution. The Supreme Court, with a bench of
five judges, unanimously rejected the contention that in so far as the First Amendment took
away or abridged the fundamental rights conferred by Part III it should not be upheld in the
light of the provisions of article 13(2).
Shastri J while delivering the judgment of the court said that although "law" must ordinarily
include constitutional law, there is a clear demarcation between ordinary law, which is made
in the exercise of legislative power, and constitutional law, which is made in the exercise of
constituent power.
Dicey defines constitutional law as including "all rules which directly or indirectly affect the
distribution or the exercise of the sovereign power in the State." The terms of Art. 368 are
perfectly general and empower Parliament to amend the Constitution, without any exception
whatever.
He recognized that an amendment in terms of article 368 was the "exercise of sovereign
constituent power" and that there was no indication that the constitution-makers intended to
make fundamental rights immune from constitutional amendment.
Therefore "law" in article 13 must be taken to mean rules or regulations made in the exercise
of ordinary legislative power and not amendments to the Constitution made in the exercise of
constituent power. Article 13 (2) did not affect amendments made under article 368.
Sajjan Singh Vs. State of Rajasthan
AIR 1965 SC 845
The validity of the Seventeenth Amendment was challenged in this case. The main
contention before the five-judge bench of the Supreme Court was that the Seventeenth
Amendment limited the jurisdiction of the High Courts and, therefore, required ratification
by one-half of the States under the provisions of Article 368.
The court unanimously disposed of this contention, but members of the court chose to deal
with a second submission, that the decision in the Shankari Prasad case should be
reconsidered. The S.C. expressed its full concurrence with the decision in the earlier case.
GOLAKNATH Vs. STATE OF PUNJAB,
(1967) 2 SCR 762
The doubts of the minority judges in Sajjan Singh's case as to the correctness of the decision
in Shankari Prasad's case were raised before a bench of eleven judges of the Supreme Court
in this case, in which the validity of the First and Seventeenth Amendments to the
Constitution in so far as they affected fundamental rights was again challenged. The Fourth
Amendment was also challenged. This time a majority of six judges to five decided that
Parliament had no power to amend any of the provisions of Part III, so as to take away or
abridge the fundamental rights enshrined therein. The majority were, however, faced with the
problem that, if the First, Fourth and Seventeenth Amendments were at a late stage to be
invalidated, the impact on social and economic affairs would be chaotic. On the other hand,
the court considered that it had a duty to correct errors in the law. It, therefore, adopted a
doctrine of prospective overruling[4] under which the three constitutional amendments
concerned would continue to be valid, and the decision to the effect that Parliament had no
power to amend the provisions of Part III would operate for the future only.
Given this "policy and doctrinaire decision to favour Fundamental Rights", the majority
judgment of Subha Rao C.J. proceeded to accept the following propositions:

(i) Article 368 with its marginal note "Procedure for amendment of the Constitution" dealt
only with the procedure for amendment. Amendment was a legislative process and the power
of Parliament to make amendments was contained in article 248 and Entry 97 in List I of the
Seventh Schedule (the Union List) which confer residuary legislative powers on the Union
Parliament.

(ii) An amendment to the Constitution, whether under the procedural requirements of article
368 or under any other article, is made as part of the normal legislative process. It is,
therefore, a "law" for the purpose of article 13(2).
The judgment of three of the dissentients.( Wanchoo, Bhargava and Mitter JJ.) in the Golak
Nath" case was delivered by Wanchoo J. The learned observed that Art.368 carried the
power to amend all parts of the constitution including the fundamental rights in part III of the
constitution. They reaffirmed the correctness of the decisions in cases of Shankri Prasad and
Sajjan singh.
To get over the decision of the Supreme Court in Golaknath’s case the Constitution 24th
Amendment Act was passed in 1971. The Twenty-fourth Amendment made changes to
articles 13 and 368:
(i) A new clause was added to article 13: "(4) Nothing in this article shall apply to any
amendment of this Constitution made under article 368."
(ii) Amendments were made to article 368:
a) The article was given a new marginal heading: "Power of Parliament to amend the
Constitution and procedure therefore."
b) A new clause was added as clause (I): "(I) Notwithstanding anything in this Constitution,
Parliament may in exercise of its constituent power amend by way of addition, variation or
repeal any provision of this Constitution in accordance with the procedure laid down in this
article.
c) Another clause was added as clause (3) i..e:
"(3) Nothing in Article 13 shall apply to any amendment under this article.“
However, another amendment to the old Article 368 (now article 368(2)) made it obligatory
rather than discretionary for the President to give his assent to any Bill duly passed under the
article.
The basic structure doctrine in constitution
However, there is another limitation imposed on the amending power of the constitution of
India, which developed during conflicts between the Supreme Court and Parliament, where
Parliament wants to exercise discretionary use of power to amend the constitution while the
Supreme Court wants to restrict that power. This has led to the laying down of various
doctrines or rules in regard to checking the validity/legality of an amendment, the most
famous among them is the Basic structure doctrine as laid down by the Supreme Court in the
case of Kesavananda Bharati v. State of Kerala.
The Supreme Court recognized basic structure concept for the first time in the historic
Kesavananda Bharati case in 1973. Ever since the Supreme Court has been the interpreter of
the Constitution and the arbiter of all amendments made by parliament.
In this case validity of the 25th Amendment act was challenged along with the Twenty-fourth
and Twenty-ninth Amendments.
The court by majority overruled the Golak Nath case which denied parliament the power to
amend fundamental rights of the citizens.
The majority held that Article 368 even before the 24th Amendment contained the power as
well as the procedure of amendment.
The Supreme Court declared that Article 368 did not enable Parliament to alter the basic
structure or framework of the Constitution and parliament could not use its amending powers
under Article368 to 'damage', 'weaken', 'destroy', 'abrogate', 'change' or 'alter' the 'basic
structure' or framework of the constitution. This decision is not just a landmark in the
evolution of constitutional law, but a turning point in constitutional history.
KESHVANAND BHARTI VS. STATE OF KERALA
AIR 1973 SC 1461
It is a landmark of the Supreme Court of India, and is the basis in Indian law for the exercise
by the Indian judiciary of the power to judicially review, and strike down, amendments to the
Constitution of India passed by the Indian Parliament which conflict with or seek to alter the
Constitution's basic structure.
The judgment also defined the extent to which the Indian Parliament could restrict the right
to property, in pursuit of land reform and the redistribution of large landholdings to
cultivators, overruling previous decisions that suggested that the right to property could not
be restricted.

In the majority judgment it was held that the fundamental importance of the freedom of the
individual has to be preserved for all times to come and that it could not be amended out of
existence. According to the learned Chief Justice, fundamental rights conferred by Part III of
the Constitution cannot be abrogated, though a reasonable abridgement of those rights could
be effected in public interest.

There is a limitation on the power of amendment by necessary implication which was

apparent from a reading of the preamble and therefore, according to the learned Chief Justice,
the expression "amendment of this Constitution", in Article 368 means any addition or
'change in any of the provisions of the Constitution within the broad contours of the
preamble, made in order to carry out the basic objectives of the Constitution.
Accordingly, every provision of the Constitution was open to amendment provided the basic
foundation or structure of the Constitution was not damaged or destroyed. Shelat and Grover,
JJ. held that the preamble to the Constitution contains the clue to the fundamentals of the
Constitution.
According to the learned Judges, Parts III and IV of the Constitution which respectively
embody the fundamental rights and the directive principles have to be balanced and
harmonized. This balance and harmony between two integral parts of the Constitution forms
a basic element of the Constitution which cannot be altered.
The word 'amendment' occurring in Article 368 must therefore be construed in such a manner
as to preserve the power of the Parliament to amend the Constitution, but not so as to result
in damaging or destroying the structure and identity of the Constitution. There was thus an
implied limitation on the amending power which precluded Parliament from abrogating or
changing the identity of the Constitution or any of its basic features.
Indira Nehru Gandhi v. Raj Narayan
AIR 1975 SCC 2299
The Basic Structure concept was reaffirmed in this case. The Supreme Court applied the
theory of basic structure and struck down Clause (4) of Article 329-A,which was inserted by
the 39th Amendment in 1975 on the ground that it was beyond the amending power of the
parliament as it destroyed the basic feature of the constitution. The amendment was made to
the jurisdiction of all courts including SC, over disputes relating to elections involving the
Prime Minister of India.
Basic Features of the Constitution according to the Election case verdict Again, each judge
expressed views about what amounts to the basic structure of the Constitution: Justice Y.V.
Chandrachud listed four basic features which he considered unamendable:

a) Sovereign democratic republic status.

b) Equality of status and opportunity of an individual.
c) Secularism and freedom of conscience and religion.
d) 'Government of laws and not of men' i.e. the rule of law.

THE 42nd AMENDMENT

After the decision of the Supreme Court in Keshvanand Bharti and Indira Nehru Gandhi
case, the Constitutional (42nd Amendment) Act, 1976 was passed which added two new
clauses, namely, clause (4) and (5) to Art.368 of the Constitution.
It declared that there shall be no limitation whatever on the constituent power of parliament
to amend by way of addition, variation or repeal of the provisions of the Constitution under
this Article.
This Amendment would put an end to any controversy as to which is supreme, Parliament or
the Supreme Court. Clause (4) asserted the supremacy of the parliament.
It was urged that Parliament represents the will of the people and if people desire to amend
the Constitution through Parliament there can be no limitation whatever on the exercise of
this power.
This amendment removed the limitation imposed on the amending power of the Parliament
by the ruling of the Supreme Court in Keshvanand Bharti’s case. It was said that the theory
of ‘basic structure’ as invented by the Supreme Court is vague and will create difficulties.
The amendment was intended to rectify this situation.
The 42nd Amendment brought these major changes:
Firstly, the amendment removed election disputes from the purview of the courts.
Secondly, the amendment transferred more power from the state governments to the central
government, eroding India's federal structure.
The third purpose of the amendment was to give Parliament unrestrained power to amend
any parts of the Constitution, without judicial review.
The fourth purpose was to make any law passed in pursuance of a Directive Principle
immune from scrutiny by the Supreme Court.
Minerva Mill v. Union of India
(1980) 3 SCC 625
In this case, the validity of 42nd amendment Act was challenged on the ground that they are
destructive of the ‘basic structure’ of the Constitution.
The Supreme Court by majority by 4 to 1 majority struck down clauses (4) and (5) of the
article 368 inserted by 42nd Amendment, on the ground that these clauses destroyed the
essential feature of the basic structure of the constitution. It was ruled by the Court that a
limited amending power itself is a basic feature of the Constitution.
The amendment made to Art. 31C by the 42nd Amendment is invalid because it damaged the
essential features of the Constitution. Clauses (4) and (5) are invalid on the ground that they
violate two basic features of the Constitution viz. limited nature of the power to amend and
judicial review.
The courts cannot be deprived of their power of judicial review. The procedure prescribed
by Clause (2) is mandatory. If the amendment is passed without complying with the
procedure it would be invalid.
 The Judgment of the Supreme Court thus, makes it clear that the Constitution is supreme not
the Parliament. And the Parliament cannot have unlimited amending power so as to damage
or destroy the Constitution to which it owes its existence and also derives its power.
On 31 July 1980, in its judgment on Minerva Mills v. Union of India, the Supreme Court
declared unconstitutional two provisions of the 42nd Amendment which prevent any
constitutional amendment from being "called in question in any Court on any ground" and
accord precedence to the Directive Principles of State Policy over the Fundamental Rights of
individuals respectively.
CONCLUSION
Parliament has limited powers to amend the constitution.
Parliament cannot damage or destroy the basic features of the Constitution.
The Procedure prescribed for the amendment is mandatory. Non compliance with it will
result in invalidity of the amendment.
Clauses (4) and (5) inserted in Art. 368 by the 42nd Amendment Act are invalid because they
take away the right of judicial review.
Parliament cannot increase its amending power by amending Art. 368.

TRADE, COMMERCE AND INTERCOURSE

The economic philosophy underlining the Constitution is the establishment of a welfare State
and an economic system rooted in the fulfillment of the individual, controlled and bounded
always by the values of the principles of the society in which he lived. Articles 301 to 307 deal
with freedom of trade, commerce and intercourse within the territory of India subject to certain
limitations.

The framers of the Constitution thought it fit to provide further specific protection to the integrity
of the country with respect to traffic of people and goods and, therefore, devoted a whole part to
that purpose. Part XIII of the Constitution entitled, "Trade, Commerce and Intercourse within the
Territory of India," seeks to keep these activities between the states and between all other parts
of the country free from legal interference. Part XIII does not discriminate between citizens and
non-citizens. The rights granted under it are in the form of a prohibition on legislative and
executive competence. Since the introduction of the constitution of India, the necessity of
clarifying the concept of 'freedom' in the interpretation of Article 301 has been the main focus of
judicial opinion and academic exercise of jurists and scholars. Atiabari case and Automobile case
has settled that tax laws are not outside the domain of Part XIII of the constitution and do not
come within the preview of the freedom so guaranteed by Art. 301.

Position Freedom Of Trade Commerce And Intercourse In India

No federal Country has an even economy. Some of its constituent units may be agricultural and
others may be industrial. This creates an opportunity for those constituent units that have
legislative power of their own may, to serve their own selfish and parochial interest seek to
create a trade barrier either not to allow the inflow or the outflow of the goods and services.
Creation of such trade barriers are prejudicial to the national interest as it hampers the economic
development and growth of the economy as a whole and this is disadvantageous to all units in
the long run. This was the case when all princely state at the time of pre independence,
categorized into classification of Part A, Part B & C states. Therefore at the time of the drafting
of the Constitution our Constitution framers took into account the situation at that time and
drafted a law as Article 301 as freedom of trade commerce and intercourse as they were very
much concerned with the economic unity of the Young devoted Nation. In order fully to
appreciate the implications of the provisions of Part XIII of the Constitution, it is necessary to
bear in mind that history and background of those provisions. The Constitution Act of 1935
(Government of India Act) which envisaged a federal constitution for the whole of India,
including what was then Indian India in certain restrictions British India, which could not be
fully implemented and which also introduced full provincial autonomy enacted Section 297.

The constitution makers desired the free flow of goods for trade commerce and intercourse as a
sustaining force for the stability of the cultural and political unity of the federal polity, and that
the country should function as the single economic unit devoid of any internal barriers. The
Corresponding provision to Article 301 was Section 297 of the Government of India Act, 1935.
The origins of the provision may be traced directly to the section 92 of the Australian
Constitution. In the historical context section 92 of the Australian Constitution was intended to
abolish the state trade barriers. But as a result of Judicial Decision it applies to both to state as
well as to the Commonwealth. This was recognized in the decision of James v Commonwealth in
which a Commonwealth Statute requiring a Licence for interstate shifting of the dried fruits, was
declared unconstitutional by the Privy Council There are some significant differences between
the two,

a) Section 92 is concerned with the interstate trade but Article 301 is concerned with interstate as
well as intra state trade, therefore the coverage of Art.301 is broader than of Section 92of the
Australian Constitution. A reason to include both interstate as well as intra state commerce with
the ambit of Art.301 may be that at times it becomes difficult to demarcate between the two as
they may so inextricably mixed.

b) Section 92 makes the interstate trade absolutely free whereas Article 301 omit the word
absolutely free.

Inter-Relationship between Article 301 and article 19(1)(g)

The word trade means buying or selling of the goods while the tem commerce includes all forms
of transportation by land air or by water. The term intercourse means the movement of goods
from one place to another. Intercourse will cover all those activities which might not be included
in the ambit of trade and commerce.

Article 19 (1) (g), a fundamental right confers on the citizens the right to carry any profession or
carry on any occupation trade or business. The question of relationship between 301 and art. 19
are somewhat uncertain. One view that while Article 19 (1) (g) deals with the rights of the
individual, whereas art. 301 provide safeguards for carrying trade as a whole distinguished from
individuals right to do the same. But this view is hardly tenable. Article 301 is based section 92
of the Australian Constitution which has been held to compromise rights of individuals as well,
and the same should be position in India. The Supreme Court has denounced then theory that
Article 301 guarantees freedom “ in abstract and not on the individuals”.

Freedom of trade commerce and intercourse is a wider concept than that of an individual’s
freedom to trade guaranteed by Article 19(1) (g). Art. 19(1) (g) can be taken advantage by the
citizens whereas the freedom of trade commerce and intercourse enshrined under art. 301 can be
invoked by a corporation and even by State on complaints of discrimination as under Art. 303. In
Emergency Art. 19(1) (g) is suspended and so the courts may take recourse to Article 301 to
adjudge the validity of restriction on Trade and Commerce. There appears to be no satisfactory
way to explain the relationship between the two articles.

Is Taxing An Impediment To Trade And Commerce

Tax is a compulsory Contribution and is the sovereign attribute of the State based on the
Principle of No quid Pro Quo. It is a branch of Public Finance of every Economy. Taxation is
collection of revenue and Public expenditure is the application of the revenue so collected. Tax is
necessary for the Functioning of Every Economy of the World, without it all the duties and the
obligations of the state will be undone and power unused.
Article 302 authorizes Parliament to impose restrictions in the public interest. Article 303
prohibits state preference or discrimination on regional basis, but makes an exception for
Parliament in order to meet a situation of scarcity in any part of the country. Article 304 prohibits
the states from making any discrimination against goods 'imported' from other states in taxing
them. It only authorizes the states to impose 'reasonable' restrictions in the public interest with
the sanction of the President. Article 305 removes the laws, as they existed on January 26, 1950,
and later at the commencement of the Fourth Amendment, 1955, from the operation of Article
301 and 303. Article 306, now repealed, dealt with the former Native States authorizing them to
levy import-export duties on the goods to and from the rest of country in accordance with the
terms of their accession.

Article 307 envisages an authority appointed by Parliament to carry out the objectives of the first
four Articles of this Part. No such authority has ever been constituted. Part XIII allows
reasonable restrictions imposed by the states in the 'public interest.' One is strongly inclined to
think that a tax is always in the public interest and, therefore, the prohibition does not apply to it.

It is also pertinent to bear in mind that all taxation is not necessarily an impediment or a restraint
in the matter or trade, commerce and intercourse. Instead of being such impediments or
restraints, they may, on the other hand, they also provide for improvement of different kinds of
means of transport, for example, in cane growing areas, unless there are good roads, facility for
transport of sugarcane from sugarcane fields to sugar mills may be wholly lacking or
insufficient. In order to make new roads as also to improve old ones, cess on the grower of cane
or others interested in the transport of this commodity has to be imposed.

It is the tax thus realized that makes it feasible for opening new means of communication or for
improving old ones. It cannot therefore, be said that taxation in every case must mean an
impediment or restraint against free flow of trade and commerce. The Supreme Court in the
Atiabari Tea Co. case held that taxes which hampered free flow of trade and commerce
contravened Part XIII and, therefore were unconstitutional. The Court qualified this decision in
the Automobile Transport case and ruled that regulatory and compensatory' taxes did not come
within the purview of Article 301. Trade and Commerce that are protected by Art. 301 are only
those activities which are regarded as lawful trade activities and not against public polity. The
Supreme Court held that Gambling is not trade but res extra commercium. In this Case Court
held that prize Competition being gambling of nature, they cannot be regarded as trade and
commerce, thus violative of Art. 19(1) (g) and 301.

Later in the case of Fatehchand v State of Maharashtra , a question arose whether money lending
is a trade and protected and subjected to restrictions under Art. 301. Supreme court keeping in
regards the position of Moneylenders vis a vis the humble beneficiaries of Law, that is the
marginal farmers, rural artisans, rural laborers, workers and small farmers held that the
exploiting money landing to poor and weak cannot be classified as trade and Art. 301 would not
apply.

What Are Regulatory And Compensatory Taxes?

To smoothen the movement of interstate trade, commerce and intercourse, the State has to
provide much facility as to the roads etc. The Concept of Regulatory and Compensatory
Taxation have been evolved with a view to reconcile the freedom oftrade and commerce
Guaranteed by Art. 301 with a need to tax such trade at least to extent of making it pay for the
facilities provided to it by the State, for e.g. a road network. The Concept of Compensatory
taxation has been borrowed from Australia where it has been evolve to dilute section 92 of the
Constitution.
The Concept of Regulatory and compensatory taxation has been applied by the Indian Courts to
the State taxation under entries 56 and 57 of the list II. In case of Atiabari Tea Co. v State of
Assam, a tax levied by the State of Assam on the carriage of tea by road or inland waterways was
held bad for as a restriction on the freedom of trade, commerce and intercourse and was not held
as a regulatory taxation or measure. In case of G.K. Krishna v state of Tamil Nadu, the petitioner
challenged the validity of a Government notification under Madras Motor Vehicle Taxation Act,
1931, enhancing the motor vehicle taxation on omnibuses from Rs. 30 to Rs. 100 per quarter per
seat. It was claimed that the taxation was neither regulatory nor compensatory and therefore was
acting as a restriction on the freedom contemplated under Art. 301. The Court held that the Tax
so levied on the omnibuses is not violative of the Freedom under Art. 301 and are covered under
Regulatory and Compensatory taxes. The Court stated that the Regulatory Measures such as
rules of traffic, collection of toll tax or tax for use of roads and bridges or Aerodromes etc. do not
operate as a barrier to trade ad commerce.

For a Tax to Become a Prohibited Tax it has to become a Direct Tax, the effect of which is to
hinder the part of trade commerce and intercourse. Further in case of Meenakshi v State of
Karnataka, the Court upheld the increase in the passenger tax on the vehicles of Bus Operators
even though the imposition was made to compensate the loss of revenue due to abolition of
Octoroi. In the course of exempting the tax laws from the purview of Art. 301. The Court has
even relaxed the limitation of Art. 304(a). Upholding the validity of State Notifications giving
tax exemptions to or imposing lower rate of tax on certain goods made within the State, the
Court held that the notifications do not violate Art. 301 and therefore do not violate Art.

304(a) also. Further in the case of State of Mysore v H. Sanjeevah , section 39 of the Mysore
forest Act was in question as violative of the freedom under Art. 301. It was held by the Court
that the provision is invalid on the ground that it totally prohibits the movement of forest produce
during the period between Sunset and Sunrise is prohibitory of right to transport Forest produce.
The court held that the rule cannot be called valid because “ A rule regulating transport in its
essence, certain to certain conditions devised to promote transport; such a rule aims at making
the transport orderly, so that it does not harm other person carrying the same vocation, and
enables transport to function for the public good.”
Relationship Between Part XII And Part XIII

The power to tax is inherent in sovereignty. The sovereign State, in some cases the Union, in
other cases the State, has the inherent power to impose taxes in order to raise revenue for
purposes of State. Such a sovereign power ordinarily is not justifiable, simply because the State
which determines, through the Legislature, what taxes to impose, on whom and to what extend.

Part XII and the Part XIII though form distinct parts in the Constitution of India, they have been
hot topic of debate especially in regards to the question of extent of freedom contemplated by the
Art. 301 which is very general in its meaning. The power of the State to raise finances for
Government purposes has been dealt with by Part XII of the Constitution, which contains the
total prohibition of levy or collection of tax, except by authority of law Art. 265.

This Part also deals with the distribution of revenue between the Union and the States. It does not
clearly demarcate the taxing authority as between the Union and the States and therefore had to
indicate in great detail what taxes shall be levied for the benefit of the Union for the benefit of
the States and what taxes may be levied and collected by the union or for the benefit of the States
and the principle according to which those revenues have to be distributed amongst the
constituent states of the Union.

It is clear that this Part is not subject to the other provisions of the Constitution and the generality
of the words used in Art. 301 is cut down only by the provision of the other Articles of this Part
ending with Art 307. It has not been and it could not be contended that the generality of the
expression used on Art. 301 do not admit of any exception or explanations not occurring in this
Part itself, nor has it been contended that trade, commerce and intercourse are subject to any
other fetters.

It is agreed that trade, commerce and intercourse throughout the territory of India have been
emphatically declared by the Constitution to be free, but there is a wide divergence of views of
the answer to the question "free from what?” Taxation as such is not a restriction within the
meaning of Part XIII. It is an attribute of sovereignty, which is not justifiable. The power to tax
is a peculiar legislative function with which the courts are not directly concerned and that,
therefore, the freedom contemplated by Art. 301 do not mean freedom from taxation and that
taxation is not included within the connotation of the terms. In short, Part XII is a self-contained
series of provisions relating to the finances of the Union and of the States and their inter relation
and adjustments. Likes Part XIII, Part XII also is not expressed to be subject to the other
provisions of the Constitution. Hence, both Parts XII and XIII are meant to be self-contained in
their respective fields.

Comparative Study of Freedom of Trade Commerce and Intercourse in Federal Countries

The Constitution of India secures the freedom of Trade, Commerce and Intercourse
within the Territory of India under Article 301, subject to reasonable restrictions & public
interest ranging from Article 302- 307. It is worth mentioning that Part XIII (Article 301-
307) is in addition to Articles 14 & 19.

Since freedom of trade, commerce & intercourse is inextricable to the concept of

federalism; it’s worthy to note similar laws in three of the most federal countries in the
world- USA, Canada & Australia.

1. USA: Article 1, Section, 8 Clause 3 in US’s constitution is referred to as Commerce

clause in the constitution of USA, which essentially lists the power of Congress, which
by necessary implication has been interpreted to have robbed the states of their power to
tax interstate commerce, while the Congress has the power to regulate commerce within
states (also with foreign nations & Indian Tribes). This constitutes the freedom of
commerce in the United States.
“Article 1 Section 8 Clause 3: The Congress shall have power to regulate commerce with
foreign nations, and among the several states, and with the Indian tribes.”
2. Canada: Section 121 of the Constitution Act, 1867 (formerly the British North
America Act, 1867: a part of Canadian Constitution) entitles the Canadian Manufactures
to have their growth, produce or manufacture free admission into any of the provinces,
thereby rendering the borders of the provinces within Canada totally permeable.

“Section 121- All Articles of the Growth, Produce, or Manufacture of any one of the
Provinces shall, from and after the Union, he admitted free into each of the other
Provinces.”

3. Australia: Section 92 of the Constitution of Australia ensures that the Trade,

Commerce & interstate intercourse via internal carriage or ocean navigation shall be
absolutely free except for imposition of Uniform duties of Customs. However newly
created states have an additional liability regarding the above for a period of two years. It
appears that Section 92 also extends to Exclusive Economic Zone (and possibly
Continental Shelf) of Australia.

“Section 92: On the imposition of uniform duties of customs, trade, commerce, and
intercourse among the States, whether by means of internal carriage or ocean navigation,
shall be absolutely free.
But notwithstanding anything in this Constitution, goods imported before the imposition
of uniform duties of customs into any State, or into any Colony which, whilst the goods
remain therein, becomes a State, shall, on thence passing into another State within two
years after the imposition of such duties, be liable to any duty chargeable on the
importation of such goods into the Commonwealth, less any duty paid in respect of the
goods on their importation.”

4. India: The Constitution of India secures the freedom of Trade, Commerce and
Intercourse within the Territory of India underArticle 301, subject to reasonable
restrictions & public interest ranging from Article 302- 307. It is worth mentioning that
Part XIII (Art. 301-307) is in addition to Articles 14 & 19.

Since freedom of trade, commerce & intercourse is inextricable to the concept of

federalism; it’s worthy to note similar laws in three of the most federal countries in the
world- USA, Canada & Australia.

Freedom of Trade, Commerce And Intercourse: The GATT/ WTO

Articles 301 & 304 (a) rings a bell or two regarding a well- known concept in
International trade i.e. Regional Trade Agreements or Free trade Agreements (RTA or
FTA) & National treatment. The GATT- WTO regime has put in place a well-organized
system of free trade/ trade without barriers amongst member Nations.

To understand the above, we must first understand the concept of Most-flavored-nation

followed by WTO.

Most-favoured-nation treatment (MFN) (GATT Article I, GATS Article II and TRIPS

Article 4) is the principle of not discriminating between one’s trading partners, meaning
that no member state would discriminate between members by favouring/ disfavouring
any of the member State to distort competition (by varying taxes etc.).

Regional Trade Agreements (RTAs or FTAs) falls as an exception to MFN Treatment.

This exception allows a member state signatory to a particular RTA to lower the Tariff
barriers like taxes for other members of RTA, even though the other WTO members have
to face these higher Tariff barriers/ taxes.

National Treatment mandates every member state not to treat the imported goods any less
favourably than domestically produced goods after they have been imported in domestic
market. National Treatment is in place to counter Non- Tariff barriers in world trade (e.g.
technical standards, security standards etc.) discriminating against imported goods.

Now what Articles 301 & 304(a) and following articles embody is the fusion of two of
the above concepts- Regional Trade Agreement & National Treatment. The Constitution
mandates that the trade commerce & intercourse between all the states in territory of
India be allowed to flow as smoothly as possible except where public interest demands
otherwise. Now this practically makes territory of India akin to a FTA area comprising of
all the Indian states. Also the Principle of National Treatment is very well assimilated in
Article 304 (a) whereby the goods imported in any Indian State would be given the same
treatment as the goods produced/ manufactured domestically, thereby not facing any
hurdle/ barrier/ discrimination.
Article 301 promises that there shall be no hindrance for conducting meaningful trade,
commerce and intercourse throughout the territory of India subject to the authorized
restrictions U/A 302-307.
Art. 302 confers power on Parliament to restrict Freedom u/a 301 in public interest from
one state to another or within any part of the territory of India. Here to curtail the freedom
all that is needed by parliament is to justify the law in public interest.

Article 303 (1) restricts the legislative powers (including sub- delegation) of Parliament
& State Legislatures to give preferential treatment to any state by virtue of any entry
relating to trade and commerce in any of the Lists in the Seventh Schedule (re: Article
246). It must be highlighted that this restriction on legislative power does not extend to
freedom of intercourse, hence, weakens the Freedom of intercourse throughout the Indian
Territory.

Article 303 (2), bends a little in favour of Legislative Powers of parliament. Parliament is
allowed to make/ authorize any discriminatory law {as per Art. 303 (1)} if it is declared
by such law that it is necessary to do so for dealing scarcity of goods in any part of India.
This power is very sweeping as it only requires a declaration in the law itself that the law
is necessitated by scarcity of goods, without going into the reality of it. The Essential
Commodities Act, 1955 is probably justified under this Article.

Article 304, again bends in favour of Legislative powers of States. It supersedes Article
301 & 302. Art. 304 (a) allows the States to impose tax on goods imported from other
States/ Union territories, to which similar goods manufactured in that State are subject.
But this should not be done in a manner so as not to discriminate between goods-
imported or manufactured. Besides this clause deals with taxes on goods only. One
peculiar point to note is that, Union Territory has appeared for the first time in this
Chapter. And to the disadvantages of Union Territory, while the goods originating from
Union Territories can be taxed by other states, no such corresponding power has been
conferred upon the Union Territories to protect its domestic manufacturers.
Though Art. 304 (a) seems a fair power conferred on states to create a level playing field
for Domestic manufacturers by subjecting all competitors to same tax regime in the same
market, thereby keeping it competitive, Art. 304 (b) on the other hand is quite sweeping
in nature. It authorizes the State Legislatures to impose reasonable restrictions in the
public interest on the freedom of trade, commerce or intercourse with or within that State.
Hence, the only requirements needed to curtail the Freedoms under Art. 301 is that the
law should be in Public Interest and impose reasonable restrictions.
However, under Article 304 (b) there is a bit of hierarchal- procedural hiccup for the
States in form of Presidential assent, which also acts as a leash on its legislative power.
Without previous sanction of the President, no Bill/ amendment can be introduced/
moved in the Legislature of a State.

Article 305 upholds existing laws as valid irrespective of Articles 301 & 303, unless
otherwise directed by the President. Article 305 was amended by the Constitution (Fourth
Amendment) Act, 1955 and it was added that laws made before the Amendment will also
be saved despite Article 301. Furthermore Article 301 will not come in the way of the
laws enacted by Parliament & State Legislatures under Article 19 (6) (ii) {which itself
was amended by Constitution (Fourth Amendment) Act, 1955}, which includes
restricting freedom on practice any trade & profession to the extent of State Monopoly of
any trade, business, industry or service under the State’s power.

This amendment was brought in light of the question raised invSaghir Ahmed v. the State
of U.P. as to whether an Act providing for a State monopoly in a particular trade or
business conflicts with the freedom of trade and commerce guaranteed by article 301,
though the Supreme Court left the question undecided.
Article 306 dealt with the Power of Part B States of the First Schedule to impose
restrictions on trade and commerce, which was repealed by the Constitution (Seventh
Amendment) Act, 1956.
Article 307 envisages National/ Inter-state authority for carrying out the purposes of
articles 301, 302, 303 and 304, and conferring of corresponding powers and duties under
 parliamentary law. Observing closely, I wonder if the word ‘authorizing’ in Article 303
refers to the Authority contemplated under this Article. At present no such Authority is in
existence in India.

Conclusion
It is very clear by now that any direct tax acting as a restraint to freedom so contemplated
under the Fabric of the freedom of trade commerce and intercourse is ultra- vires of the
Constitution. Whether the tax is prohibitory or compensatory has been left to facts and
circumstances of each and very case. With so many judicial decisions regarding freedom
of trade commerce and intercourse still there has been no evolution of any straightjacket
formulae to decide the nature of tax and judicial decision because of lack of set criteria
has varied in this respect. Thus we can conclude that the freedom under the fabric of Art.
301 is for interstate as well. Trade commerce and intercourse have the widest connotation
and cover almost all the commercial activities. The freedom guaranteed is not only from
the laws enacted in the exercise of the powers conferred by the related legislative entries
but also the tax laws. Further it has to be concluded that only those taxes that directly
hampers the trade or business will be void otherwise not. Laws, which are purely
regulatory and compensatory in nature, are not violative of the Freedom so guaranteed.

SPECIAL PROVISION RELATIONG TO CERTAIN CLASSES

In order to realise the objectives of equality and justice as laid down in the Preamble, the
Constitution makes special provisions for the scheduled castes (SCs), the scheduled tribes (STs),
the backward classes (BCs) and the Anglo-Indians. These special provisions are contained in
Part XVI of the Constitution from Articles 330 to 342. They are related to the following:

1. Reservation in Legislatures

2. Special Representation in Legislatures

3. Reservation in Services and Posts

4. Educational Grants

5. Appointment of National Commissions

6. Appointment of Commissions of Investigation

These special provisions can be classified into the following broad categories:

(a) Permanent and Temporary — Some of them are a permanent feature of the Constitution,
while some others continue to operate only for a specified period.

(b) Protective and Developmental — Some of them aim at protecting these classes from all
forms of injustice and exploitation, while some others aim at promoting their socio-economic
interests.

SPECIFICATION OF CLASSES
The Constitution does not specify the castes or tribes which are to be called the SCs or the STs. It
leaves to the President the power to specify as to what castes or tribes in each state and union
territory are to be treated as the SCs and STs. Thus, the lists of the SCs or STs vary from state to
state and union territory to union territory. In case of the states, the President issues the
notification after consulting the governor of the state concerned. But, any inclusion or exclusion
of any caste or tribe from Presidential notification can be done only by the Parliament and not by
a subsequent Presidential notification. Presidents have issued several orders specifying the SCs
and STs in different states and union territories and these have also been amended by the
Parliament. 1 Similarly, the Constitution has neither specified the BCs nor used a single uniform
expression to characterise the BCs. 2 The expression ‘BCs’ means such backward classes of
citizens other than the SCs and the STs as may be specified by the Central Government. Thus the
expression ‘BCs’ in this context means the ‘Other Backward Classes’ (OBCs) as the SCs and
STs are also backward classes of citizens. Unlike in the case of SCs, STs and OBCs, the
Constitution has defined the persons who belong to the Anglo-Indian community. Accordingly,
‘an Anglo-Indian means a person whose father or any of whose other male progenitors in the
male line is or was of European descent but who is domiciled within the territory of India and is
or was born within such territory of parents habitually resident therein and not established there
for temporary purposes only’.

COMPONENTS OF SPECIAL PROVISIONS

1. Reservation for SCs and STs and Special Representation for Anglo-Indians in
Legislatures: Seats are to be reserved for the SCs and STs in the Lok Sabha and the state
legislative assemblies on the basis of population ratios. The President can nominate two
members of the Anglo-Indian community to the Lok Sabha, if the community is not adequately
represented. Similarly, the governor of a state can nominate one member of the Anglo-Indian
community to the state legislative assembly, if the community is not adequately represented.
Originally, these two provisions of reservation and special representation were to operate for ten
years (i.e., up to 1960) only. But this duration has been extended continuously since then by ten
years each time. Now, under the 95th Amendment Act of 2009, these two provisions of
reservation and special representation are to last until 2020. 3 The reason for this special
representation to the Anglo-Indians is as follows: “Anglo-Indians constitute a religious, social, as
well as a linguistic minority. These provisions were necessary, for, otherwise, being numerically
an extremely small community, and being interspersed all over India, the Anglo-Indians could
not hope to get any seat in any legislature through election”.
2. Claims of SCs and STs to Services and Posts: The claims of the SCs and STs are to be taken
into consideration while making appointments to the public services of the Centre and the states,
without sacrificing the efficiency of administration. However, the 82 nd Amendment Act of 2000
provides for making of any provision in favour of the SCs and STs for relaxation in qualifying
marks in any examination or lowering the standards of evaluation, for reservation in matters of
promotion to the public services of the Centre and the states.
3. Special Provision in Services and Educational Grants for Anglo-Indians:Before
independence, certain posts were reserved for the Anglo-Indians in the railway, customs, postal
and telegraph services of the Union. Similarly, the Anglo-Indian educational institutions were
given certain special grants by the Centre and the states. Both the benefits were allowed to
continue under the Constitution on a progressive diminution basis and finally came to an end in
1960.
4. National Commissions for SCs and STs: The President should set up a National
Commission for the SCs to investigate all matters relating to the constitutional safeguards for the
SCs and to report to him (Article 338). Similarly, the President should also set up a National
Commission for the STs to investigate all matters relating to the Constitutional safeguards for the
STs and to report to him (Article 338-A). The President should place all such reports before the
Parliament, along with the action taken memorandum. Previously, the Constitution provided for
a combined National Commission for SCs and STs. The 89th Amendment Act of 2003
bifurcated the combined commission into two separate bodies. The National Commission for
SCs is also required to discharge similar functions with regard to the OBCs and the Anglo-Indian
Community as it does with respect to the SCs. In other words, the commission has to investigate
all matters relating to the Constitutional and other legal safeguards for the OBCs and the Anglo-
Indian community and report to the President upon their working.
5. Control of the Union over the Administration of Scheduled Areas and the Welfare of
STs: The President is required to appoint a commission to report on the administration of the
scheduled areas and the welfare of the STs in the states. He can appoint such a commission at
any time but compulsorily after ten years of the commencement of the Constitution. Hence, a
commission was appointed in the year 1960. It was headed by U. N. Dhebar and submitted its
report in 1961. After four decades, the second commission was appointed in 2002 under the
chairmanship of Dilip Singh Bhuria. Further, the executive power of the Centre extends to the
giving of directions to a state with respect to the drawing up and execution of schemes for the
welfare of the STs in the state.
6. Appointment of a Commission to Investigate the Conditions of BCs: The President may
appoint a commission to investigate the conditions of socially and educationally backward
classes and to recommend the steps to improve their condition. The report of the commission is
to be placed before the Parliament, along with action taken memorandum. Under the above
provision, the President has appointed two commissions so far. The first backward classes
commission was appointed in 1953 under the chairmanship of Kaka Kalelkar. It submitted its
report in 1955. But, no action was taken on it as the recommendations were considered to be too
vague and impractical and also there was a sharp division among the members on the criterion of
backwardness. The second Backward Classes Commission was appointed in 1979 with B.P.
Mandal as chairman. It submitted its report in 1980. Its recommendations were also lying
unattended till 1990 when the V.P. Singh Government declared reservation of 27 percent
government jobs for the OBCs.

Article 330 to 342 make special provisions for safeguarding the interest of Scheduled castes,
Scheduled Tribes, Anglo-Indians and Backward Classes.

Articles 330 and 332 deals with the reservation of seats in Lok Sabha and State Assemblies
respectively. Article 330 provides for the reservation of seats in the Lok Sabha for Scheduled
Castes and Scheduled Tribes. The number of seats reserved in any State or Union territory for
such castes and tribes will be made on the population basis.

Similarly, Article 332 provides for the reservation of seats for Scheduled Castes and scheduled
tribes in the legislative assemblies of every state. The constitution 58th amendment act 1987 has
amended article 332 of the constitution which provides for reservation of seats for “STs” in
Arunachal, Meghalaya, Mizoram and Nagaland.

The Constitution (79th Amendment) Act 1999:

The seats are reserved for the SCs and STS and they are elected by all the voters in the
constituency. There is no separate electorate for SCs and STs. Article 325 expressly provides that
there shall be one general electoral roll. This means that a member of SC and ST may contest
any seat other than reserved.

Article 335 makes it clear that the claims of the members of the SC/ST shall be taken into
consideration, consistently with the maintenance of efficiency of administration in the making of
appointment to services and posts in connection with the affair of the Union or of a State.

National Commission of Schedule Caste and Schedule Tribes:

The constitution (65th amendment) Act 1990, has amended article 338 of the constitution. The
amended article 338 provides for the establishment of National Commission for Scheduled
Castes and Scheduled Tribes in place of a Special Officer.
 Constitution of Commission: The commission shall consist of a chairman, vice chairman and
five other members. The chairman, vice chairman and the members of the commission shall be
appointed by the President.

Duties of Commission:

 To investigate and monitor all matters relating to the safeguards for SCs and STs under the
constitution and any other law or any order of the Government and to evaluate the working of
such safeguards.
 To inquire into specific complaints with respect to the deprivation of rights and safeguards of
SCs and STs.
 To participate and advice on planning process of socio economic development of SCs and STs
and to evaluate the progress of their development under the Union and any State.
 To present to the President reports upon the working of those safeguards annually and at such
other times as the commission deems fit.
 To make recommendations as to the measures that should be taken by the Centre and State for
the effective implementation of those safeguards and other measures for the protection, welfare
and socio economic development of SCs and STs.

Article 338 provided for the appointment of the special officer by President for the Scheduled
Castes and STs. The special officer was required to investigate all matters relating to the
safeguards provided for these classes and to report to the President upon the working of those
safeguards at such intervals as president would direct.

The President was to cause all such reports to be laid down before each house of Parliament. The
President may at any time and shall at the expiration of ten years from commencement of the
constitution, appoint a commission to report on the administration of the Scheduled areas and the
welfare of the STs in the State. The Central government is also authorized to give directions to
the State as to the drawing up an execution of Scheduled specified in the direction to be essential
for the welfare of ST in the State.

Anglo-Indians- according to article 366 (2) an Anglo-Indian means a person whose father or any
of whose other male progenitors in the male line is or was of European descent but who is
domiciled within the territory of India or born within such territory and whose parents habitually
were resident in India and not established for temporary purposes only.

Backward Classes-Under article 340 (1), the President is empowered to appoint the commission
consisting of such persons as he thinks fit to investigate the conditions of the socially and
educationally backward classes within the territory of India.

Linguistic Minorities:

Linguistic minority is a class of people whose mother tongue is different from that of the
majority in the State or part of a State. Article 350-A, imposes a duty on the State to endeavor to
provided adequate facilities for instructions in the mother tongue at the primary stage of
education to children belonging to linguistic minority.

Article 347 provides for the use of majority language in the administration.

Article 350 gives right to every person to submit a representation for the redress of any grievance
to any officer or authority of the Union or a State in any of the Language used in the Union or a
state, as the case may be.

Article 350-B, empowers the President to appoint a special officer for linguistic minorities. It is
the duty of the special officer to investigate all matters relating to the safeguards provided for
linguistic minorities under this constitution and report to the President upon those matters at such
intervals as the President may direct