SUPREME COURT AND

HIGH COURTS: A
COMPREHENSIVE
OVERVIEW
Karthik Shiva
As s i s t a n t P r o f e s s o r
Vit School of Law
VI T Chennai
 INTRODUCTION
◦ Judicial wing of the government
◦ Independence Of Judiciary and Impartiality as the Bedrock Of Constitutional
Democracy
◦ Neutral and Impartial Umpire Between the Centre and State
◦ Sole Power of Interpretation of the Constitution
◦ Guardian of Fundamental Rights of the People
◦ Supreme Court – As Sentinel Qui Vive
◦ Protection of Civil Liberties and Freedoms of the People
◦ From Encroachment/ Interference by the State
◦ Legislative/ Executive Action Infringing Constitutional Safeguards
◦ Declared as Ultra Vires and Unconstitutional – Judicial Review
 JUDICIAL SYSTEM IN INDIA

Judiciary

Supreme Court of State Subordinate

India High Courts Courts
Art. 124-147 Art. 214-232 Art. 233-237
 SUPREME COURT OF INDIA
◦ Highest Judicial Body in India
◦ Successor of the Federal Court of British India – Replaced the Judicial
Committee of the Privy Council
◦ Ultimate and Final Justice Delivery Mechanism
◦ Highest Court of Appeal in Criminal, Civil and Constitutional Matters
◦ Comprises of a Chief Justice and Other Justices
◦ Composition  7 + CJI (1950)  17 + CJI (1977)  25 + CJI (1986)  30 + CJI
(2009)
◦ Presently - Supreme Court (Number of Judges) Amendment Act, 2019  33 +
CJI (TOTAL 34)
◦ Most Potent Judicial Organs in The World – Supreme Court – Broad Judicial
Review Powers (Judicial Activism + PIL), Self-Appointment Of Judges And Basic
Structure Constitutionalism
 QUALIFICATIONS FOR APPOINTMENT
OF SC JUDGES
Art. 124(3) – A person shall not be qualified for appointment as a
judge of the Judges of the Supreme Court unless he is
A. Citizen of India; and

B. Served as a Judge of the High Court(s) for at least 5 years; or

C. Practiced as a advocate in the High Court(s) for at least 10

years; (District Judge service included) or

D. In the Opinion of the President a distinguished Jurist

Should not have completed 65 years of age – Art. 124(2)

 VACANCY OF JUDGES OF THE
SUPREME COURT
Art. 124 Proviso – A person who is a judge of the SC
A. Resign by writing under his hand addressed to the President
B. Removed from office as u/art. 124 (4)
Art. 124 (4)  Removal of Judge  Grounds of Proved
Misbehaviour/ Incapacity – 2/3 majority of LS + RS – followed by a
Presidential Order
Art. 124 (5)  Parliament is empowered to make law to regulate
procedure for investigation and proof of misbehaviour/
incapacity
 APPOINTMENT OF JUDGES
Art. 124(2) - The Judges of the Supreme Court are
A. Appointed by the president

B. On the Recommendations of The National Judicial Appointments

Commission u/art. 124A (Held Unconstitutional in NJAC Case) –
(Constitutional Provision)

C.In Consultation with the Such Other Judges of The Supreme Court
And of the High Courts in the States As The President May Deem
Necessary (Real/Actual Principle) – Collegium System

D. Shall hold office until the age of 65 years of age

 APPOINTMENT OF JUDGES
◦ Appointment Power is vested in the hands of the President – exercised by the
executive – PM and COM

◦ Executive Appointment of Judiciary – Sole and exclusive power to appoint the

judges of the SC and HCs - Exercised by PM and COM - mere consultation –
President was free to decide in contravention of the opinion of the judicial
members

◦ Appointment of CJI – seniority rule was followed – broken during the aftermath
of the Kesavananda Bharati v. State of Kerala case – Justice AN Ray –
superseded Justice Shelat, Hegde and Grover – resigned in protest – followed
up by supersession of Justice Hans Raj Khanna – aftermath ADM Jabalpur Case
 APPOINTMENT OF JUDGES
◦ Collegium System – Self-Appointment of Judges – Professional
Inbreeding, Nepotism and Favouritism, etc.

◦ National Judicial Appointments Commission (NJAC) System –

Ninety Ninth Constitution (Amendment) Act, 2014

◦ Sankal Chand Himatlal Sheth’s Case  First Judges Case (1982)

 Second Judges Case (1993)  Third Judges Case (1999) 
NJAC Case (2016)

◦ Collegium System  CJI + 2 Senior Most Judge of SC (1993)  CJI

+ 4 Senior Most Judges of Supreme Court (1999)
 APPOINTMENT OF JUDGES
◦ First Judges Case  SP Gupta v. Union of India (1982) – The Court
held that consultation does not mean concurrence and it only
implies exchange of views.

◦ Second Judges Case  Supreme Court Advocates on Record

Association v. Union of India (1993)

◦ Third Judges Case  In Re Special Reference Case (1999)

◦ Fourth Judges Case  NJAC Case  Supreme Court Advocates

on Record Association & Anr. v. Union of India (2016)
 INDEPENDENCE OF JUDICIARY
◦ Bar on Practice – Art. 124(7) – SC Judge not to practice in any court
of before any authority within the territory of India – Art. 220 – no
practice other than SC or other HCs
◦ No discussion on conduct of Judges – Art. 122
◦ Protection of Salaries and Conditions – Art. 125 (2) – Allowances,
Leaves or Pensions not to be varied to disadvantage after
appointment – SC – Art 221(2) – HC
◦ Charged Expenditure to CFI – Non-votable Item of Consolidated
Fund of India
◦ Protection of Tenure – HC & SC Judges cannot be removed easily –
requires motion for removal – proved misbehaviour/ incapacity – 2/3
majority of both houses of Parliament - Art. 124(4) & Art. 217(b)
 INDEPENDENCE OF JUDICIARY
◦ Judicial Appointments – Collegium System – No unguided
discretion of executive – SC – Art 221(2) – HC
◦ Power to Punish for Contempt – Art. 129 and Art. 215 – SC &
HC – Court of Record – Necessary corollary of justice delivery
system - shield not a sword – enforce justice/law – maintain
impartiality and Rule of Law
◦ Power of the SC not curtailable – Expandable not limitable -
Art. 138 (Enlargement by Parliament), Art. 139 (Writ Extension)
& Art. 140 (Ancillary Jurisdiction)
 SEAT OF THE SUPREME COURT
◦ Art. 130 – The Supreme Court shall sit in Delhi or in such other place or places, as the
Chief Justice of India may, with the approval of the President, from time to time,
appoint.

◦ Default Seat – Supreme Court at Delhi

◦ Constitutionally Permissible to establish benches in other places

◦ Proposal for regional benches – mooted for long time

◦ Law Commission Recommendation – 229th LCI Report 2009 - Split into Constitution
Bench and 4 Cassation Benches – 4 region – North, East, West and South

◦ Courts of Cassation (French - Cour de cassation) - ‘cassare’ – reverse or overturn –

Highest Appellate Courts for non-constitutional matters
 JURISDICTION OF THE SUPREME COURT OF
INDIA

Jurisdiction

Appellate
Special Leave
Original Jurisdiction Jurisdiction Review Jurisdiction
Appeal
Art. 131 Art. 132,133,134, Art. 137
Art. 136
134A

Transfer Cases Writ Jurisdiction Advisory Jurisdiction

Art. 139A Art. 32 Art. 143
ORIGINAL JURISDICTION OF THE SUPREME
COURT
◦ Art. 131 – Original Jurisdiction of the Supreme Court

◦ Jurisdiction to the exclusion of all other courts in India

◦ Primarily a corollary of India’s federal structure

◦ Disputes between the States inter se and the States and the Union
Government will be decided directly by the Supreme Court

◦ Through exercise of original jurisdiction

◦ Impartial Umpire – Supreme Court – Disputes between the Centre and

the State
APPELLATE JURISDICTION OF THE SUPREME
COURT
◦ Art. 132, 133, 134, 134A – Provisions relating to Appellate Jurisdiction

◦ Art. 132 & 134A – General Appellate Provision  Appellate

Jurisdiction of SC in appeals from HC in certain cases  substantial

question of law relating to interpretation of the constitution  civil,

criminal or other proceeding  based on certificate from HC

concerned
APPELLATE JURISDICTION OF THE SUPREME
COURT
◦ Art. 133 & 134A – Appellate Jurisdiction of Supreme Court in appeals from
HC in regard to civil matters  Substantial question of law of general
importance that needs to be decided by the Supreme Court

◦ Art. 134 – Appellate Jurisdiction of Supreme Court in regard to criminal

matters 

◦ 1. HC  Reversed acquittal  Sentenced to Death

◦ 2. HC withdrawn for trial before itself  Convicted and Sentenced to death

◦ 3. Certified by HC to be fit for appeal

APPELLATE JURISDICTION OF THE SUPREME
COURT
◦ Art. 136 – Special Leave to Appeal by the Supreme Court

◦ Art. 137 – Review Jurisdiction

◦ Art. 139A – Transfer of certain cases  From HC to SC 

Matter pending before two or more HCs – same question of
law – pending before SC and HC – SCs Power to withdraw to
itself
ADVISORYJURISDICTION OF THE SUPREME
COURT
◦Art. 143 – Advisory Jurisdiction of the Supreme Court

◦Jurisdiction to invoked by the President of India

◦Question of Law or Fact of Public Importance

◦Expedient to the get the Opinion of the SC

◦SC may after hearing the matter report to the

President its opinion
 JUDICIAL SYSTEM IN INDIA

Judiciary

Supreme Court of State Subordinate

India High Courts Courts
Art. 124-147 Art. 214-232 Art. 233-237
The Supreme Court of India: Composition, Power and Jurisdiction

It is the highest court of justice in India. It is the final platform for appeal in India. That is why it
is the most relevant topic for law exams and UPSC exams. Every judgement passed by the
Supreme Court is final and binding to all other courts. In this article, we will discuss the
composition, powers, jurisdiction and functions of the Supreme Court of India.

The Supreme Court of India

The Supreme Court is the apex court in the Indian judiciary. There is no court above the
Supreme Court. It has the highest authority to uphold the provisions of the constitution of India,
to protect the rights of the citizen of India and to protect the rule of law. The constitution of India
provides the Independence of Judiciary by giving the hierarchical setup which contains High
Courts and other subordinates courts.

History of the Supreme Court of India

Previously, the federal court of India was created under the Government of India Act, 1935. It
was considered as the apex court during the British time. This court was used to settle the
disputes between the federal states and provinces. This court was also used to hear the appeals
against the judgements given by High Courts.

After the independence of India, all the courts like Privy Council and federal court were replaced
by the Supreme Court of India. It was come in the existence in January 1950. At that time there
were 7 judges with the chief justice.

The constitution of India is the supreme law of the land and it contains the provisions which are
enforced by the law. But without any enforcement of the law, the provisions given under the
constitution were meaningless. That’s why the judiciary is independence so that it can interpret
the laws given under the constitution of India. Now, we can say that the supreme court of India
works as the guardian of the constitution of India and all the fundamental rights given to the
citizens of India.

Composition of Supreme Court

The article 124(1) of the constitution of India says that there shall be one Supreme Court in
India, which shall consist the Chief Justice of India, and other 34 judges including the Chief
Justice of India.

 The judges sit in benches of 2 or 3 is called a Division Bench

 The judges sit in benches of 5 or more is called a Constitutional Bench at the time where
there is a matter of fundamental questions of the law.

Bench to Decide the Cases

All the cases related to the Constitution of India shall be decided by the five judge’s bench
whereas the other cases are decided by at least three judges bench.

The seat of Supreme Court

Delhi is declared as the seat of SC of India. Though the CJI has the power to assign any place or
places as the seat of Supreme Court because this is an optional not mandatory.

Qualifications for the judges of Supreme Court of India:

The conditions to become the judge of the Supreme Court are given under Article 124(3) of the
Indian constitution.

 He must be a citizen of India. The person who is not a citizen of India cannot appear as a
candidate for the judge of the Supreme Court of India.
 If he is an eminent jurist.
 The person must be the judge of a high court for at least five years or more.
 He has practised as an advocate in a high court of India or as an advocate of two or more
High Court for at least 10 years.

Term of office of Judges of Supreme Court of India

The judges of SC hold the office until he attains the age of 65 years.

Independence of Judiciary

In India, the judiciary is known as the Independent. The constitution of India provides the
independence of the judiciary. Click to read the full article on Independence of judiciary.

Jurisdiction of Supreme Court of India

There are various types of the jurisdiction of SC:

Original jurisdiction (Article-131)

The SC has the original jurisdiction of several cases. These are the cases which cannot be heard
by other courts of justice. It includes the cases.
  The case between Government of India and one or more states of India.
 The case where the government of India and any state of states are one party and other
state or more than one state is a different party.
 A dispute arises between two or more states where the question is depending on the
existence of the legal right.

Conditions to appeal in the Supreme Court in civil cases

1. The civil case involves the substantial question of law

2. If the High Court opinion that the confliction arose in the case should be decided by the
Supreme Court.

Conditions to appeal in the Supreme Court in criminal cases

1. If the HC has reversed the acquittal order passed by session judge and give the death
sentence to the accused.
2. If the HC has withdrawn a criminal case for trial from any subordinate court and passed
the death sentence to the accused.
3. When the High court thinks that the case is fit for the appeal in the Supreme Court.

Normally, all the cases, where the interpretation of any article of the constitution is needed, the
SC hears the appeal in those cases. The Supreme Court can also take the cases suo-moto (on its
own).

Appellate jurisdiction (Article-132,133,134)

The Supreme Court is the highest court of appeal in India. It has the appellate jurisdiction in all
the cases of civil and criminal. All the cases decided in any high court of India have the
jurisdiction to appeal in the Supreme Court. The appeal for the cases can come before the SC
when High court issues a certificate for the effect.

Advisory jurisdiction (Article-143)

The supreme court of India has advisory jurisdiction. The president of India can seek advice
from the SC where the matter is legal and high public importance. The SC has the power to give
the opinion to the President but the president of India is not bound with the decision.

The jurisdiction in case of fundamental rights

The article 32 of the constitution of India has given the power to the Supreme Court to issue the
writs for the enforcement of the fundamental rights given under the constitution of India. That’s
why the SC acts as the guardian of the fundamental rights given to the citizens of India.
Final interpreter for the constitution of India

The constitution of India is the supreme law of the land in India. SC acts as the final guardian
and interpreter of the Constitution. The SC has the power to reject any law which is
unconstitutional. This is also known as the court’s power of judicial review.

Powers of the Supreme Court

 Power to punish for contempt of Court.

 Power to review own judgements- The Supreme Court is not binding to its own
decisions. It has the powers to review, change or revise its own decision.
 Appointment of ad hoc judges under article-127
 The jurisdiction in case of Electoral College -The Electoral College is used for the
election of the president and vice president of India. But if there is any confliction arises
during the elections, the Supreme Court has the power to hear that case and the decision
given by the Supreme Court will be final for the Electoral College.
 Appointment of retired judges of SC or HC- Article 128
 Appointment of acting Chief Justice-Article 126
 Revisory Jurisdiction under Article-137
 As a court of records-All, the cases decided in the Supreme Court are recorded. The
decision passed by the Supreme Court has the binding on all the courts in India. All the
High courts and other subordinate courts used the decisions and the judgements of the SC
to decide the case related to the judgement. The judgement passed by the Supreme Court
cannot be challenged by questioning.
 Special leave to appeal- The supreme court of India has the power to grant special leave
of appeal against the judgement, decree, order passed by any court or tribunal of India.

The procedure of the Supreme Court

 It has the power to make the rules regarding the functioning and procedures followed by
all the courts in India.
 With the approval of the President of India, the SC can lay down the conditions and
restrictions for its employees.
 When the office of president is vacant then it is the duty of the vice president to take the
responsibility of president office. But if somehow, the vice president is not there, the
Chief justice of India has the power to fill up the vacancy and can act as the president of
India for that period of time.

Can Supreme Court overrule President India?

The President of India cannot overrule the judgement passed by SC. It is the Parliament who can
amend any law to overrule the Judgement of the Supreme Court. The President has the power to
pardon power even in the decision given by the supreme court of India. But technically, here the
President is not overruling the Judgement, he only pardons the accused.

Conclusion

So it can be said that the supreme court of India is the most powerful court in India with having
the largest jurisdiction and the protector of the Constitution of India. It is playing an important
role in the evolution of the constitution of India by interpreting its articles and by invalidating the
unconstitutional laws.
 GOVERNOR, CHIEF MINISTER AND
STATE COUNCIL OF MINISTERS – AN
OVERVIEW
Prof. Karthik Shiva
VIT School of Law,
Vellore Institute of Technology, Chennai
 STATE EXECUTIVE

• Art. 153-167 of the COI – State Executive – Part VI

• The Union Executive consists of the
a) The Governor,
b) The Chief Minister,
c) The Council of Ministers and
d) The Advocate General
Head of the State – Art. 153 – Governor of the State
 GOVERNOR OF THE STATE

• Parallel pattern of government at the state level comprising of state executive

and state legislature i.e. Parliamentary Form

• Part VI of the Constitution of India – State Executive

• No office of Vice-Governor like Vice President

• Governor of the State – Nominal / Titular / Constitutional Head

• Also serves as an Agent of the Central Government

• Dual Role of Governor

• Separate Governor for each state usually – same person can hold governorship
in 2 or more states after 1956 (7th Constitution Amendment Act)
 GOVERNOR OF THE STATE

• Art. 153 – Governor of States

• Art. 154 – Executive Power the State

• Art. 155 – Appointment of Governor

• Art. 156 – Term of Office of the Governor

• Art. 157 – Qualifications for appointment as Governor

• Art. 158 – Conditions of Office of Governor

• Art. 159 – Oath or Affirmation by Governor

• Art. 160 – Discharge of functions of Governor in certain contingencies

• Art. 161 – Power of Governor to grant pardon, etc.

• Art. 162 – Extent of executive Power of the State

 APPOINTMENT OF GOVERNOR OF
THE STATE

• No election of Governor – Direct or Indirect by the people

• Appointed by President by warrant under his hand and seal

• Essentially a nominee of the Central Government

• Independent Constitutional Office – not under the control or

subordinate to the Central Government

• Idea of direct election of Governor was mooted akin to USA but

subsequently dropped in place a nominee system based on
Canadian model
 QUALIFICATIONS OF GOVERNOR
OF THE STATE

The Constitution lays down 2 qualifications for the appointment of

Governors

1. He should be a citizen of India

2. He should have completed 35 years of age

Constitutional Conventions

1. Outsider to the State  Free from Local Politics

2. Consultation with CM of State  Ensure smooth functioning

Both conventions have been violated in some cases

 CONDITIONS OF OFFICE OF
GOVERNOR

The Constitution lays down the following conditions for the the governor’s office:

1. He should not be a member of either House of Parliament or state legislature. Any such person
is appointed as governor vacates his seat on the date on which he enters his office as governor.

2. He should not hold any other office of profit.

3. He is entitled without payment of rent to the use of his official residence (the Raj Bhavan).

4. He is entitled to such emoluments, allowances and privileges as may be determined by

Parliament.

5. When the same person is appointed as the governor of two or more states, the emoluments and
allowances payable are shared by the states in such proportion as determined by the president.

6. His emoluments and allowances cannot be diminished during his term of office.
 PROTECTIONS, OATH AND TERM
OF OFFICE OF GOVERNOR
• The governor is also entitled to a number of privileges and immunities.

• He enjoys personal immunity from legal liability for his official acts.

• During his term of office, he is immune from any criminal proceedings, even in respect of his
personal acts. He cannot be arrested or imprisoned.

• After giving two months’ notice, civil proceedings can be instituted against him during his term
of office in respect of his personal acts.

• The oath of office to the governor is administered by the chief justice of the concerned state high
court and in his absence, the senior-most judge of that court available.

• A governor holds office for a term of five years from the date on which he enters upon his office.

• This term of five years is subject to the pleasure of the President.

• He can resign at any time by addressing a resignation letter to the President.

 POWERS OF THE GOVERNOR

• The Governor’s powers is many aspect such as executive, legislative, financial

and judicial powers more or less analogous to the President of India.

• But, he has no diplomatic, military or emergency powers like the president.

• The broad classification of the Governor’s power can be made as follows;

• Executive Power

• Legislative Power

• Financial Powers

• Judicial Powers
 CONSTITUTIONAL POSITION OF
THE GOVERNOR

The governor has constitutional discretion in the following cases:

1. Reservation of a bill for the consideration of the President.

2. Recommendation for the imposition of the President’s Rule in the state.

3. While exercising his functions as the administrator of an adjoining union territory (in
case of additional charge).

4. Determining the amount payable by the Government of Assam, Meghalaya, Tripura and
Mizoram to an autonomous Tribal District Council as royalty accruing from licenses
for mineral exploration.

5. Seeking information from the chief minister with regard to the administrative and
legislative matters of the state.
 CHIEF MINISTER AND COUNCIL OF MINISTERS

• State Executive in India is inspired by the British Westminster style

having a both a Head of the State and Head of the Government

• Head of the State Executive – Governor– Nominal (De Jure) Executive

• Head of the State Government – Chief Minister – Real (De facto)

Executive

• Article 163-167 deals with the CM and COM

 CHIEF MINISTER AND COUNCIL OF MINISTERS

• Art. 163  Council of Ministers to aid and advise Governor

• Art. 164  Other Provisions as to Ministers

• Art. 165  Advocate General of the State

• Art. 166  Conduct of business of Government of a State

• Art. 167  Duties of CM as respect the furnishing of information to the

President, etc.
 APPOINTMENT OF CHIEF MINISTER

• Art. 164  Governor to appoint the Chief Minister

• No specific procedure explicitly laid down under COI

• Constitutional Conventions dictate the appointment of CM  Leader of the majority

party in State Legislative Assembly

• No clear majority  Personal Discretion subject to certain conventions  Leader of

Largest Party or Coalition  With requirement to prove majority in LS  Vote of
Confidence

• CM can be member of State Legislative Assembly or Council  Predominantly SLA

 TENURE OF CHIEF MINISTER

• Term of the Chief Minister  Not fixed  Holds office during the
Pleasure of the Governor
• Does not mean that the Governor can dismiss the Chief Minister at any
time.
• Chief Minister enjoying majority support in the State Legislative Assembly
 Cannot be dismissed by the Governor
• CM loses the confidence of the State Legislature  Must Resign failing
which Governor can Dismiss him
• CM  Head of COM  Death/ Resignation/ Dismissal of CM dissolves
the Council of Ministers
 ROLE AND FUNCTIONS OF CHIEF MINISTER

The Chief Minister enjoys the following powers as Head of the Union council of
ministers:

1. Recommends persons for appointment as ministers by the Governor.

2. Allocates and reshuffles various portfolios among the ministers.

3. Can ask a minister to resign or advise the Governor to dismiss him.

4. Presides over the meeting of council of ministers and influences its decisions.

5. Guides, directs, controls, and coordinates the activities of all the ministers.

6. Can bring about the collapse of the council of ministers by resigning from office.
 ROLE AND FUNCTIONS OF CHIEF MINISTER

In Relation to the Governor enjoys the following powers in relation to the President:

1. He is the Principal channel of communication between the Governor and the council of ministers.
It is the duty of the prime minister:

A. to communicate to the Governor all decisions of the council of ministers relating to the
administration of the affairs of the Union and proposals for legislation;

B. to furnish such information relating to the administration of the affairs of the Union and
proposals for legislation as the Governor may call for; and

C. if the Governor so requires, to submit for the consideration of the council of ministers any
matter on which a decision has been taken by a minister but which has not been considered by the council.

2. He advises the Governor with regard to the appointment of important officials like Advocate General of
India, chairman and members of the SPSC, State Election commissioners, and so on.
 STATE COUNCIL OF MINISTERS

• Art. 163  Status of Council of Ministers

• Art. 164  Appointment, Tenure, Responsibility, Qualification, Oath, Salaries and Allowances
• CM and COM to aid and advise the Governor in the exercise of his functions
• 42nd and 44th Constitution Amendment Act  makes aid and advice binding on the
Governor
• Appointed on advice of CM by Governor  LA or LC Members  Non-members can
becomes minister but must be elected/nominated as MP within 6 months
• Minister  Right to speak and take part proceedings in both houses  Voting rights in
Single House  Art. 177
 FUNCTION AND COMPOSITION OF CENTRAL
COUNCIL OF MINISTERS
• Art. 163  CM and COM to always advise the President  Advice rendered by Ministers not to be enquired by
the Court  Exception discretionary powers of Governor

• Art. 164 (1)  Appointment by Governor on advice of CM  Mandatory appointment of Tribal Welfare
Minister in MP, Odisha, Chhattisgarh and Jharkhand

• Art. 164 (1)  Minister  COM  Pleasure of the Governor

• Art. 164 (1A)  CM and COM not to exceed 15% of LA

• Art. 164 (1B)  Not to be disqualified under anti-defection law to hold minister post

• Art. 164 (2)  COM collectively responsible to the Legislative Assembly  Principle of Collective
Responsibility

• Art. 164 (3)  Oath of Office and Secrecy administered by the President

• Art. 164 (4)  Non-member of Parliament for 6 consecutive months shall lose his ministerial position
ROLE OF MINISTERS
Responsibility of
Ministers

Collective Individual
Responsibility Responsibility
 RESPONSIBILITY OF MINISTERS

• Concept of Collective Responsibility  Basic Tenet of Parliamentary Form of

Government  Art. 164(2)  COM Collectively Responsible to SLA  All
ministers are jointly responsible for their acts of commission and omission 

• “Swim together or sink together”  No confidence motion is successful every

member of COM as to resign  including RS Ministers

• Cabinet decisions bind all cabinet ministers and other ministers even if they
differed in the cabinet meeting  Duty to stand by all cabinet decisions  if he
strongly disagrees  if not so he has to resign
 RESPONSIBILITY OF MINISTERS

• Concept of Individual Responsibility  Implicit in the Doctrine of

Pleasure under Art. 164

• Any particular minister who has lost the confidence of the CM can be
removed by the Governor  particular in case of any form of
wrongdoing on his part

• Dissatisfaction with performance of difference of opinion  CM can

ask him to resign or get him dismissed by the Governor
CLASSIFICATION OF MINISTERS

Categories of
Ministers

Cabinet Minister of Deputy

Minister State Minister
 CLASSIFICATION OF MINISTERS

• Three Categories  Cabinet Minister, MoS and Dep. Ministers  Difference in

ranks, emoluments and political importance  PM as the first among equals

• Cabinet Ministers  Important Ministry  Home, Defence, Finance, External

Affairs  Members of Cabinet  Attends meetings and Policy making

• Minister of State  Independent Charge / Attached to Cabinet Minister 

Accordingly Work independently or Work under Cabinet Ministers  Do not
attend Cabinet Meetings unless specially invited

• Deputy Ministers  No independent charge  attached to Cabinet Ministers or

MoS and assist them  Not part of Cabinet and do not attend Cabinet Meetings
 CABINET
• It is a smaller body consisting of 20-30 ministers.
• It includes the cabinet ministers only.
• It is a part and a sub-set of the Council of ministers.
• It meets frequently usually at least once a week to
deliberate and take decisions
• It’s policy decisions are binding on all ministers
• It has a supervisory role on the Council of Minister
 KITCHEN CABINET
• It is sub-classified into a Kitchen/Inner Cabinet
• It is a super-small body of Cabinet with highest decision making powers
• Informal and Extra-Constitutional System that developed in system
with a larger cabinet that may stifle decision making
• The objective is to ensure quick, efficient and robust decision making
• It helps in maintaining secrecy in important political matters
• It can meet more often and expeditiously that the full cabinet
• Decisions are cooked and placed before the full cabinet for formal
approval
• Also exists in USA and Britain
STATE LEGISLATIVE ASSEMBLY – AN
OVERVIEW

Prof. Karthik Shiva

VIT School of Law,
Vellore Institute of Technology, Chennai
 INTRODUCTION

• Articles 168 to 212 in Part VI of the Constitution deal with the State Legislature
• It deals with organisation, composition, duration, officers, procedures, privileges, powers, etc.
• There is no uniformity in the organisation of state legislatures
• State Legislatures may be unicameral or bicameral in nature
• Parliament is empowered to create of abolish the Legislative Councils in the States based on a resolution
passed by the state concerned
• State Resolution should be passed with special majority – 2/3 of membership of state legislature
• Andhra Pradesh, Maharashtra, Uttar Pradesh, Telangana, Bihar and Karnataka – Bicameral Legislatures
• Rest of the States – Unicameral Legislature
• Critiqued State Level Bicameralism in Constituent Assembly of India  Delay Decision Making and
Expensive
 COMPOSITION OF STATE LEGISLATIVE ASSEMBLY

• The legislative assembly consists of representatives directly elected by the people on the basis of universal adult franchise.

• Its maximum strength is fixed at 500 and minimum strength at 60.

• Its strength varies from 60 to 500 depending on the population size of the state.

• In case of Arunachal Pradesh, Sikkim and Goa, the minimum number is fixed at 30 and in case of Mizoram and Nagaland, it is 40
and 46 respectively.

• For holding direct elections to the assembly, each state is divided into territorial constituencies.

• Demarcation of constituencies is done in such a manner  Ratio between the population of each constituency and the
number of seats allotted to it is the same throughout the state  Parity across constituencies

• It ensures uniformity of representation between different constituencies in the state.

• The Constitution provided for the reservation of seats for scheduled castes and scheduled tribes in the assembly of each state
on the basis of population ratios.
 COMPOSITION OF STATE LEGISLATIVE COUNCIL

• The members of the legislative assembly, the members of the legislative council
are indirectly elected.

• The maximum strength of the council is fixed at one-third of the total strength of
the assembly and the minimum strength is fixed at 40.

• It means that the size of the council depends on the size of the assembly of the
concerned state.

• This is done to ensure the predominance of the directly elected House

(assembly) in the legislative affairs of the state.
 MANNER OF ELECTION OF STATE LEGISLATIVE
COUNCIL

1. 1/3 are elected by the members of local bodies in the state like municipalities, district boards, etc.,
2. 1/12 are elected by graduates of three years standing and residing within the state,
3. 1/12 are elected by teachers of three years standing in the state, not lower in standard than
secondary school,
4. 1/3 are elected by the members of the legislative assembly of the state from amongst persons
who are not members of the assembly, and
5. the remainder are nominated by the governor from amongst persons who have a special
knowledge or practical experience of literature, science, art, cooperative movement and social
service.
Thus, 5/6 of the total number of members of a legislative council are indirectly elected and 1/6 are
nominated by the governor.
The members are elected in accordance with the system of proportional representation by means
of a single transferable vote.
 DURATION OF STATE LEGISLATIVE ASSEMBLY

• Like the Lok Sabha, the legislative assembly is not a continuing chamber.

• Its normal term is five years from the date of its first meeting after the general elections

• The expiration of the period of five years operates as automatic dissolution of the assembly.

• The governor is authorised to dissolve the assembly at any time (i.e., even before the completion of
five years) to pave the way for fresh elections.

• The term of the assembly can be extended during the period of national emergency by a law of
Parliament for one year at a time (for any length of time).

• This extension cannot continue beyond a period of six months after the emergency has ceased to
operate.

• This means that the assembly should be re-elected within six months after the revocation of
emergency.
 DURATION OF STATE LEGISLATIVE COUNCIL

• Like the Rajya Sabha, the legislative council is a continuing chamber,

• It is a permanent body and is not subject to dissolution.

• But, one-third of its members retire on the expiration of every second year.

• So, a member continues as such for six years.

• The vacant seats are filled up by fresh elections and nominations (by governor) at
the beginning of every third year.

• The retiring members are also eligible for re-election and re-nomination any
number of times
 QUALIFICATION FOR STATE LEGISLATURE

The Constitution lays down the following qualifications for a person to be chosen a member of the state legislature.

(a) He must be a citizen of India.

(b) He must make and subscribe to an oath or affirmation before the person authorised by the Election Commission for this purpose.

In his oath or affirmation, he swears

(i) To bear true faith and allegiance to the Constitution of India

(ii) To uphold the sovereignty and integrity of India

(c) He must be not less than 30 years of age in the case of the legislative council and not less than 25 years of age in the case of the legislative assembly.

(d) He must posses other qualifications prescribed by Parliament.

Accordingly, the Parliament has laid down the following additional qualifications in the Representation of People Act (1951):

(a) A person to be elected to the legislative council must be an elector for an assembly constituency in the concerned state and to be qualified for the
governor’s nomination, he must be a resident in the concerned state.

(b) A person to be elected to the legislative assembly must be an elector for an assembly constituency in the concerned state. (

(c) He must be a member of a scheduled caste or scheduled tribe if he wants to contest a seat reserved for them. However, a member of scheduled
castes or scheduled tribes can also contest a seat not reserved for them.
 DISQUALIFICATION FOR STATE LEGISLATURE

Under the Constitution, a person shall be disqualified for being chosen as and for being a
member of the legislative assembly or legislative council of a state:

(a) if he holds any office of profit under the Union or state government (except that of a
minister or any other office exempted by state legislature),

(b) if he is of unsound mind and stands so declared by a court,

(c) if he is an undischarged insolvent,

(d) if he is not a citizen of India or has voluntarily acquired the citizenship of a foreign
state or is under any acknowledgement of allegiance to a foreign state, and

(e) if he is so disqualified under any law made by Parliament

 DISQUALIFICATIONS UNDER RPA, 1951

Accordingly, the Parliament has prescribed a number of additional disqualifications in the Representation of People Act (1951):

1. He must not have been found guilty of certain election offences or corrupt practices in the elections.

2. He must not have been convicted for any offence resulting in imprisonment for two or more years. But, the detention of a
person under a preventive detention law is not a disqualification.

3. . He must not have failed to lodge an account of his election expenses within the time.

4. He must not have any interest in government contracts, works or services.

5. He must not be a director or managing agent nor hold an office of profit in a corporation in which the government has at least
25 per cent share.

6. He must not have been dismissed from government service for corruption or disloyalty to the state.

7. He must not have been convicted for promoting enmity between different groups or for the offence of bribery.

8. He must not have been punished for preaching and practicing social crimes such as untouchability, dowry and sati.
 DISQUALIFICATIONS UNDER ANTI -DEFECTION
LAW

The Constitution also lays down that a person shall be disqualified for being a
member of either House of state legislature if he is so disqualified on the ground of
defection under the provisions of the Tenth Schedule.

The question of disqualification under the Tenth Schedule is decided by the

Chairman, in the case of legislative council and, Speaker, in the case of legislative
assembly

Kihota Hollohan v. Zachilhu (1992) – Decision of the Speaker subject to Judicial

Review
 VACATION OF SEATS

The Member of the State Legislature vacates his seat in the following cases;

1. Double Membership

2. Disqualification

3. Resignation  Writing to Chairperson / Speaker as case may be

4. Absence  60 Days Absence without permission  Seat is vacated

5. Other Cases  Election held void by Court  Expelled by the House 

Elected as President / Vice President  Appointed as Governor of a State