JURIS ACADEMY

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GTB Nagar Metro Station Gate No – 2, Delhi – 110009
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The Constitution is the Supreme of fundamental Law of land.
The Constitution means a document having a special legal sanctity which sets out
the framework and the principal functions of organs of government of a State and
declares the principles governing the operation of those organs.
All government organs, which owe their origin to the Constitution and derive their
powers from its provisions, must function within the framework of Constitution,
and must not do anything which is inconsistent with provisions of Constitution.
History: The Constitution of India was framed by a Constituent Assembly set-up
under the Cabinet Mission plan of 1946.
The Constituent Assembly consisted of 389 members, of which 292 were elected
by the elected members of the Provincial Legislative Assemblies while 93 members
were nominated by the Princely States. A representative from each of the four Chief
Commissioners Provinces of Delhi, Ajmer-Marwar, Coorg and British Baluchistan
was also added. (292+93+4)
Each Province and each Indian State or group of States were allotted the total
number of seats proportional to their respective population roughly in the ratio of
one to a million.
The seats in each province were distributed among the three main communities –
Muslim, Sikh and General, in proportion to their respective populations.
Members of each community in the Provincial Legislative Assembly elected their
own representatives by the method of proportional representation with single
transferable vote.
The Assembly held its first meeting on December 9, 1946, and elected Dr.
Sachindanand Sinha, the oldest member of the Assembly as the provisional
President.
On December 11, 1946, the Assembly elected Dr. Rajendra Prasad as its Permanent
Chairman.
The last meeting of Constituent Assembly took place on 24th Jan, 1950
It took 2 years 11 months and 18 days to make Indian Constitution.
ACT FEATURE
Royal Charter, 1600 A Second East India Company, to which the Commerce of India was
exclusively granted, was incorporated under a charter of 5 September,
1668 issued by William III.
The two companies were united into one in 1709 under an award of
Lord Godolphin. The new united company came to be called ―The
East India Company‖.
The first Mayor‘s court was established under a charter of 30th
December, 1687 in Madras.

Regulation Act of A. Beginning of British Parliamentary control over the company

1773 administration in India.

Government of India 1) Based on the Montagu-Chelmsford Report.

Act 1919 2) System of diarchy was introduced.
3) Classifications of subjects of administration as ‗Central‘ and
‗Provincial‘ was made for the bifurcation of authority.
ACT FEATURE
Government of India a. Based on the report of Joint Committee constituted by the British
Act 1935 Parliament under the Chairmanship of Lord Linlithgow.
b. Envisaged a ‗federation of all –India‘, consisting of the British
provinces and the Indian State willing to join it. Introduction of
Provincial Autonomy.
c. The act endeavored to give a written Constitution to the country, many
principles were used in the framing of present Constitution of India.
d. The Central Legislature was bicameral.

Cabinet Mission 1946 I. Rejected demand of Muslim League for A separate sovereign State of
Pakistan.
II. Proposed India to be Union of India embracing both British India and
the Union should have an Executive and a Legislature .

Mountbatten Plan Lord Mountbatten came to India in March 1947 as the new Viceroy to
1947 arrange for a smooth transfer of power. Accordingly, British
Parliament passed Indian Independence Bill 1947.
Before the advent of the Constitution, India was governed under the Government of
India Act, 1937, which became effective in 1937. The executive authority at Centre
was vested in Governor General appointed by crown, would act on ministered
advise except certain functions ‗in his discretion‘ or ‗individual judgment‘ and was
subject to control of Secretary of state of India who was member of British Cabinet.
HISTORY
After outbreak of World War II in Europe in Sep 1939, The British Govt. issued
draft declaration under the Cripps Mission 1942, and sent Sir Stafford Cripps, a
member of War Cabinet to decide future of India.
In June 1945 Viceroy Viscount Wavell made under The Wavell Plan 1945, a fresh
proposal that executive council of Indians with the exception of Viceroy and
commander-in-chief should be reconstituted to resolve constitutional deadlock.
On Feb 19, 1946 Labor party came to power in England and under Cabinet Mission
1946, elections of constituent assembly took place in July 1946.
Lord Mountbatten who succeeded Lord Wavell on June 3, 1947 declared partition
and his plan was given effect by India Independence Act, 1947.
The Constitution of India was framed by a Constituent Assembly set-up under the
Cabinet Mission plan of 1946.
The Constituent Assembly consisted of 389 members, of which 292 were elected
by the elected members of the Provincial Legislative Assemblies while 93 members
were nominated by the Princely States. A representative from each of the four Chief
Commissioners Provinces of Delhi, Ajmer-Marwar, Coorg and British Baluchistan
was also added. (292+93+4)
Each Province and each Indian State or group of States were allotted the total
number of seats proportional to their respective population roughly in the ratio of
one to a million.
After the draft was discussed by the people, the press, the provincial assemblies and
the Constituent Assembly in the light of the suggestions received the same was
finally adopted on November, 26, 1949, and was signed by the President of the
Assembly.
Though the major part of the Constitution came into force on January 26, 1950, the
provisions relating to citizenship, elections. Provisional Parliament , and temporary
and transitional Provisional came into force with immediate effect, viz. from
November 26, 1949.
The seats in each province were distributed among the three main communities –
Muslim, Sikh and General, in proportion to their respective populations.
Members of each community in the Provincial Legislative Assembly elected their
own representatives by the method of proportional representation with single
transferable vote.
The Constituent Assembly set up 13 committees for framing the Constitution. On
the basis of these Committees, a draft of the Constitution was prepared by a seven-
member Drafting committee under the Chairmanship of Dr. B.R. Ambedkar. The
Draft Constitution was published In January, 1948 and people were given eight
months to discuss the draft and purpose amendments.
The Assembly held its first meeting on December 9, 1946, and elected Dr.
Sachindanand Sinha, the oldest member of the Assembly as the provisional
President.
On December 11, 1946, the Assembly elected Dr. Rajendra Prasad as its Permanent
Chairman.
The last meeting of Constituent Assembly took place on 24th Jan, 1950
It took 2 years 11 months and 18 days to make Indian Constitution.
Parliamentary System of Responsible Government: The Constitution provides
for a Parliamentary System of Government under which the real executive power
rests with the Council of ministers and the President is only a nominal ruler. The
Council of Ministers stay in office as long as they enjoy the confidence of the
Parliament. In US President system promotes stability of the executive.
The Bulkiest and Written Constitution of the World: The Indian Constitution is
one of the bulkiest Constitutions of the World. The constitution, originally
consisting of 395 Articles and 8 Schedules, now have 395 (total 444 Articles) and
12 Schedules. Indian Constitution is written even though conventions also play a
part insofar as they are in keeping with the provisions of the Constitution.
Constitutionalism: The constitutionalism connotes essence of limited government.
A country may have a Constitution, but not necessarily Constitutionalism. The
principles and norms which promote Constitutionalism in a country are a written
Constitution, federalism, free elections, independent judiciary with judicial review,
fundamental rights, doctrine of rule of law (implies absence of arbitrary power,
equality before law, and individual liberties) and separation of powers.
Federal or Unitary: In the opinion of Prof. Wheare, the Indian Constitution is
almost ‗quasi-federal‘. Austin and A.H. Birch used the term ‗Cooperative
federalism‘ for Indian Constitution.
 CONSTITUTION OF INDIA

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute

India into a
SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC
and to secure all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and
integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November,
1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION.
The preamble sets out the aims and aspirations of people, and these have been
translated into various provisions of Constitution.
The words ‗socialist‘ and ‗secular‘ have been added to the Preamble by the 42nd
Amendment Act, 1976
Sovereign: Where there resides within itself a supreme and absolute power
acknowledging no superior. Sovereignty in India vests in the people of India.
Sovereignty in India does not vests in Parliament as it is bound by the Constitution.
Socialist: meant elimination of inequality in income and status and standards of
living.
Secular: It gives equal freedom to all religion and it is not irreligious or anit-
religious.
Democracy: According to Abraham Lincoln, democracy means ― Government of
the people, by the people and for the people.
Republic: It implies there is no hereditary ruler and head of the State is elected by
the people for a fixed term.
The preamble sets out the aims and aspirations of people, and these have been
translated into various provisions of Constitution.

Legislature
Judiciary

Executive

India has bicameral

Legislature in
AP
Telengana
Karnataka
Bihar
Maharashtra
UP Fourth
Pillar
of
State
 SOURCES FEATURES BORROWED
Government of India Act,  Diarchy system at Provincial Level
1919  Bicameral system at Indian Legislative Council
Government of India Act,  Diarchy system at Central Level
1935  Bicameral Parliament
 Public Service Commissions
 Federal Scheme
 Office of Governor
 Judiciary
 Emergency provisions
 Administrative details.
Bill of Rights of U.S.  Fundamental Rights
Constitution and U.N.  Preamble
declaration of Human Rights
Soviet (USSR) Constitution  Fundamental Duties
 Idea of Justice (Social, Economic and Political) in
Preamble
 A Constitutionally mandated Planning Commission
to oversee the development of the economy
 SOURCE FEATURE
French Constitution  Ideals of Liberty, Equality and Fraternity
mentioned in the Preamble
USA  Independence of Judiciary
 Judicial Review
 Supreme Court
 Removal of Supreme Court and High Court
Judges
 Powers of President
 President as Executive Head and Supreme
Commander of Armed Forces
 Impeachment of President
 Position and duties of Vice-President
 Vice-President as ex-officio chairman of Rajya
Sabha
Irish Constitution  Directive Principles (Ireland borrowed it from
Spain)
 Method of election of President
 Electoral College in election of President
 Nomination of members of Rajya Sabha by
President
 SOURCE FEATURE
U.K.  Parliamentary System and Parliamentary Privileges
 System of Council of Ministers and responsibility of
Council of Ministers to Lok Sabha
 President as Nominal Head
 Speaker of Lok Sabha
 Rule of Law and Prerogative writs
Canadian Constitution  Federal Structure with a strong Centre
 Distribution of Power in Centre & States and placing
residuary powers with the Centre
 Appointment of Governors by Centre
 Advisory jurisdiction of Supreme Court
Australian Constitution  Concurrent list in Seventh Schedule
 Provisions regarding trade, commerce and
intercourse
 Joint sitting of two Houses of Parliament
South African Constitution  Provision for Amendment of Constitution
 Election of members of Rajya Sabha
German Reich  Emergency
Weimar Constitution of  Suspension of emergency rights during emergency
Germany
 PART Description Important
PART I THE UNION AND ITS TERRITORY Yes
PART II CITIZENSHIP Yes
PART III FUNDAMENTAL RIGHTS Yes
PART IV DIRECTIVE PRINCIPLES OF STATE POLICY Yes
PART IVA FUNDAMENTAL DUTIES Yes

PART V THE UNION Yes

PART VI THE STATES Yes
PART VIII THE UNION TERRITORIES Partially
PART IX THE PANCHAYATS No
PART IXA THE MUNICIPALITIES No
PART X THE SCHEDULED AND TRIBAL AREAS No
PART XI RELATIONS BETWEEN THE UNION AND THE STATES Yes
PART XII FINANCE, PROPERTY, CONTRACTS AND SUITS Partially
PART XIII TRADE, COMMERCE AND INTERCOURSE WITHIN Partially
THE TERRITORY OF INDIA
 PART Description Important
PART XIV SERVICES UNDER THE UNION AND THE STATES Partially
PART XIVA TRIBUNALS Partially
PART XV ELECTIONS Partially
PART XVI SPECIAL PROVISIONS RELATING TO CERTAIN No
CLASSES (SUCH AS SC / ST)
PART XVII OFFICIAL LANGUAGE Partially
PART XVIII EMERGENCY PROVISIONS Yes
PART XIX MISCELLANEOUS Partially
PART XX AMENDMENT OF THE CONSTITUTION Yes
PART XXI TEMPORARY, TRANSITIONAL AND SPECIAL No
PROVISIONS
PART XXII SHORT TITLE, COMMENCEMENT, AUTHORITATIVE No
TEXT IN HINDI AND REPEALS
 Name Description
SCHEDULE I List of States and Union Territories

SCHEDULE II Part A- Provisions as to President and Governors of States

Part C- Provisions as to Speaker (s) and Chairmen
Part D- Provisions as to Judges (Supreme Court and High Court)
Part E- Provisions as to Comptroller and Auditor-General of India
SCHEDULE III Forms of Oath and Affirmations of
Ministers of Union or States
Candidates for Elections of MP‘s/ MLA‘s and MP‘s / MLA‘s
Judges – Supreme Court, High Court and CAG
SCHEDULE IV Allocation of Seats in the Council of States
SCHEDULE V Provisions as to Administration and Control of Scheduled Areas and
Scheduled Tribes
SCHEDULE VI Provisions as Administration and Control of Tribal Areas in the States
of Assam, Meghalaya, Tripura and Mizoram
SCHEDULE VII Distribution of Legislative Powers between Centre and States
List I - Union List
List II - State List
List III - Concurrent List
 Name Description
SCHEDULE VIII Languages
SCHEDULE IX Validations of certain Acts and regulations to give effect to agrarian
reformed and directive principles
SCHEDULE X Provisions as to disqualification on grounds of defection
SCHEDULE XI Panchayat – Matters in respect of which schemes for economic
development and social justice are to be implemented by Panchayats
SCHEDULE XII Municipalities – Matters in respect of which Municipalities have been
endowed powers and authority to enable them to function as institution
of self government
 CHAPTER I.—THE EXECUTIVE
The President and Vice-President
•Article 52 of Constitution of India provides that there shall be a President of India.
•According to Art. 53, the executive power of the Union shall be vested in the
President and shall be exercised by him either directly or through officers
subordinate to him in accordance with this Constitution.
•For that purpose the President shall make rules for the more convenient transaction
of the business of the Government of India, and for the allocation among Ministers
of the said business as mentioned in Art 77(3).
•It has prescribed under Art. 77(1) that all executive action of the Government of
India shall be expressed to be taken in the name of the President.
•President shall make and subscribe oath or affirmation in the presence of the Chief
Justice of India or, in his absence, the senior-most Judge of the Supreme Court
available, before entering upon his office, as provided in Article 60.
•Under Article 60, the oath states he will to the best of his ability preserve, protect
and defend the Constitution and the law and will devote himself to the service and
well-being of the people of India.
What is Executive Power?
Article 73 merely defines the matters w.r.t. which the executive power of Union
extends.
The executive power of the Union shall extend to the matters w.r.t. which
Parliament has exclusive power to make laws and exercise of Govt of India‘s
authority to enter into treaty or agreements.
Broadly speaking Executive function comprises determination of policy and
carrying it into execution. For example:
 Initiation of Legislation
 Maintenance of order
 Direction of foreign policy
 The promotion of social and economic welfare
 Supervision of general administration of state
In Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, it was said that
executive functions comprises the whole corpus of authority to govern, other than
that which is involved in the legislative functions of Parliament and the judicial
functions of the courts.
In recent times executive functions involve vast system of social welfare services
such as health, housing, education, social security, labour welfare, transport etc.
In the exercise of executive power, the government may do any act provided it is
not an act:
 assigned by the Constitution to any authority or body or
 it is not contrary to the provisions of any law or
 it does not encroach upon or otherwise infringe the legal rights of individuals

In Jayantilal Amritlal Shodhan v. F. N. Rana, AIR 1964 SC 648:

― ….The Constitution has not made absolute or rigid divisions of functions between
the three agencies of the State. To the executive, exercise of functions legislative or
judicial are often entrusted. For instance, power to frame rules, regulations and
notifications which are essentially legislative in character is frequently entrusted to
the exercise. Similarly, judicial authority is also entrusted by legislation to the
executive authority……‖
The executive now exercises the powers of subordinate legislation and of
administrative justice.
The President of India shall be the Visitor of the University. The Visitor may
appoint any person to review the work and progress of the Central University.
No. Name Profession
1 Dr. Rajendra Prasad 26.01.1950 – 13.05.1962 Practicing Lawyer
2 Dr. Sarvepalli Radhakrishnan 13.05.1962 – 13.05.1967 Teacher
3 Dr. Zakir Hussain 13.05.1967 - 03.05.1969 Practicing Lawyer
Varahagiri Venkata Giri 03.05.1969 – 20.07.1969 Practicing Lawyer
4
24.08.1969 - 24.08.1974
5 Fakhruddin Ali Ahmed 24.08.1974 - 11.02.1977 Practicing Lawyer
6 Neelam Sanjiva Reddy 25.07.1977 - 25.07.1982 Practicing Lawyer
7 Giani Zail Singh 25.07.1982 - 25.07.1987 Farmer
8 Ramaswamy Venkataraman 25.07.1987 - 25.07.1992 Practicing Lawyer
9 Shankar Dayal Sharma 25.07.1992 - 25.07.1997 Practicing Lawyer
10 Kocheril Raman Narayanan 25.07.1997 - 25.07.2002 Journalist
11 Dr. A. P. J. Abdul Kalam 25.07.2002 - 25.07.2007 Scientist
12 Pratibha Patil 25.07.2007 - 25.07.2012 Practicing Lawyer
13 Pranab Mukherjee 25.07.2012 - 25.07.2017 Practicing Lawyer
14 Shri Ram Nath Kovind 25.07.2017 - 25.07.2022 Practicing Lawyer
Clause 1 of Article 58 provides that a person shall be eligible for election as
President if he
(a) is a citizen of India,
(b) has completed the age of thirty-five years, and
(c) is qualified for election as a member of the House of the People. [Art.84]
(2) A person shall not hold any office of profit under the Govt. of India or of any
State or under any local/other authority.
Explanation: A person shall not be deemed to hold any office of profit by reason
only that he is the President or Vice-President of the Union or the Governor of any
State or is a Minister either for the Union or for any State.
Article 59. Conditions of President's office.—(1) The President shall not be a
member of either House of Parliament or of a House of the Legislature of any State.
If a member of either House of Parliament or of a House of the Legislature of any
State be elected President, he shall be deemed to have vacated his seat in that
House on the date on which he enters upon his office as President.
(2) The President shall not hold any other office of profit.
 Designation Salary

President Rs. 5,00,000/-

Vice – President Rs. 4,00,000/-
Governor Rs. 3,50,000/-
Chief Justice of India Rs. 2,80,000/-
Supreme Court Judge Rs. 2,50,000/-
Chief Justice of HC Rs. 2,50,000/-
High Court Judge Rs. 2,25,000/-
The salaries of Supreme Court Judges shall be charged from Consolidated Fund of
India
The privileges and allowance of judges shall not be varied to their disadvantage after
their appointment.
The salaries and service conditions of SC and HC judges are paid according to
Supreme Court Judges (Salaries and Conditions of Service) Act, 1958, High Court
Judges (Salaries and Conditions of Service) Act, 1954 and The High Court and
Supreme Court Judges (Salaries And Conditions of Service ) Amendment Act, 2018
Art. 84 - A person shall not be qualified to be chosen to fill a seat in Parliament
unless he—
(a) is a citizen of India, and makes and subscribes before some person authorised in
behalf by the Election Commission an oath or affirmation according to the form set
out for the purpose in the Third Schedule;
(b) is, in the case of a seat in the Council of States, not less than thirty years of age
and, in the case of a seat in the House of the People, not less than twenty-five years
of age; and
(c) possesses such other qualifications as may be prescribed in that behalf by or
under any law made by Parliament.
Parliament has prescribed the necessary qualifications and disqualifications for
parliamentary membership in the Representation of the People Act, 1951.
According to this Act, to be a member of Lok Sabha, a person should be an elector
for some parliamentary constituencies in India. Corrupt or convicted persons are
also disqualified from contesting elections under this Act.
Art. 57 - A person who holds, or who has held, office as President shall, subject to
the other provisions of this Constitution, be eligible for re-election to that office.
Art 54. Election of President.—The President shall be elected by the members of
an electoral college consisting of—
(a) the elected members of both Houses of Parliament; and
(b) the elected members of the Legislative Assemblies of the States.
Explanation.—In this article and in article 55, ―State‖ includes the National Capital
Territory of Delhi and the Union territory of Pondicherry.
55. Manner of election of President
(3) The election of the President shall be held in accordance with the system of
proportional representation by means of the single transferable vote and the voting
at such election shall be by secret ballot.
Single Transferable Vote means that each elector has only one vote, irrespective of
the number of seats to be filled up.
Candidate First Preference Second Preference Total
A 4500 400 4900
B 4000 1100 5100
C 1500 0 0
First and Second Presidential elections took place in 1952 and 1957 in which Dr.
Rajendra Prasad was elected out of 5 and 3 candidates respectively. He served the
longest term as President. Fourth Presidential elections took place in 1967, wherein
17 candidates filed their nominations and Dr. Zakir Hussain was elected third
President of India.
Dr. Zakir Hussain, the third President of India, died in office on 03-05-1969.
Art. 65. (1) In the event of the occurrence of any vacancy in the office of the
President by reason of his death, resignation or removal, or otherwise, the Vice-
President shall act as President until the date on which a new President elected.
(2) When the President is unable to discharge his functions owing to absence,
illness or any other cause, the Vice-President shall discharge his functions until the
date on which the President resumes his duties.
(3) The acting Vice-President shall, have all the powers and immunities of the
President and be entitled to emoluments, allowances and privileges of President.
Under Article 65(1) of the Constitution, the Vice-President Shri V.V. Giri assumed
office to act as President.
However, Shri V.V. Giri, resigned on 20th July, 1969 as Vice-President and also as
the acting President. This created a contingency situation as Art 52 states that there
shall be President of India.
Art 70: Parliament may make such provisions as it thinks fit for the discharge of
the functions of the President in any contingency not provided for in this Chapter.
Parliament enacted President (Discharge of Functions) Act, 1969 which provides
that in the event of occurrence of vacancy in the office of both the President and the
Vice-President by reason of death, resignation, removal or otherwise, the Chief
Justice of India, or, in his absence, the senior most judge of Supreme Court of India
shall discharge functions of the President.
As under article 62(2) of the Constitution, an election to fill a vacancy in the office
of the President occurring by reason of his death, resignation, etc., is required to be
held in any case within 6 months from the date of the occurrence of the vacancy.
The fifth Presidential elections were held in 1969 Shri V.V. Giri contested as an
Independent candidate against Congress nominee Shri Neelam Sanjeeva Reddy.
Shri V.V. Giri was the first and last President to win the elections as an Independent
candidate.
Art 71.—(1) All doubts and disputes arising out of or in connection with the
election of a President or Vice-President shall be inquired into and decided by the
Supreme Court whose decision shall be final.
(3) Subject to the provisions of this Constitution, Parliament may by law regulate
any matter relating to or connected with the election of a President or Vice-
President. The law made by Parliament is Presidential and Vice-Presidential
Elections Act, 1952.
The experience of the past five elections to the office of the President held in 1952,
1957, 1962, 1967 and 1969 had revealed that persons often offered themselves as
candidates for the highest office of President without even a remote chance of
getting elected. In order to remedy these shortcomings, the Government got an Act
passed by Parliament on 23-03- 1974 and amended the Presidential and Vice
Presidential Act, 1952.
Election petition challenging an election can be presented only before the Supreme
Court by any contesting candidate or by minimum 20 electors joined together as
petitioners. Nominees for Presidential election must be accompanied by at least 50
electors as proposers and at least 50 electors as seconders and in the case of Vice-
Presidential 20 electors as proposers and 20 as seconders respectively.
Shri Fakhruddin Ali Ahmed, the fifth President of India expired suddenly on 11-02-
1977. In 7th Presidential election, in all 37 candidates filed their nominations. On
scrutiny, the Returning Officer rejected the nominations filed by 36 candidates.
Thus only one validly nominated candidate remained in the field, namely, Shri
Neelam Sanjeeva Reddy who was declared first candidate in history of India
as unopposed candidate.
The President of India promulgated an Ordinance on 5th June, 1997 to further
amend the Presidential and Vice-Presidential Act, 1952. The Parliament approved
the Ordinance on 29-08-1997. The following amendments to the Act were made:-
(a) In the case of the Presidential Election, the number of proposers and seconders
for any nomination paper was increased from ten proposers to fifty proposers and
from ten seconders to fifty seconders.
(b) In the case of Vice-Presidential Election, the number of proposers and seconders
for any nomination paper was likewise increased from five proposers and five
seconders to twenty proposers and twenty seconders.
(c) The amount of security was increased from 2,500/- to Rs. 15,000/-.
India has adopted the system of Parliamentary democracy, where in the powers of
the Government are vested in the political office of the Prime Minister.
The President of India holds the highest elective office in India.
He is the head of state of the Republic of India and is the formal head of the Union
legislature and executive. He is Supreme Commander of the Indian Defence Forces.
The President of India is the first citizen and represents the Indian nation and
therefore does not belong to any particular party.
• Executive Powers
 Military Powers
 Supervisory Powers over Executive and Legislature (239,240,392)
 Financial Powers
 Appointment Powers (69,75,76,124,148,153,280,316,324,338,338A)
 Diplomatic Powers
 Emergency Powers (Art. 352-360)
• Legislative Powers (Art.85-87,90,94,103,108,111,123)
• Judicial Powers (Art. 72)
• Whether a member of Parliament has become subject to a disqualification or not
is decided by President after obtaining opinion of Election Commission [Art.
103]
• Power of President to grant pardons, reprieves, respite or remissions of
punishment or to suspend, remit or commute the sentence [Art. 72]
LEGISLATIVE FUNCTIONS
• Participation of the Executive in legislative process
 President has the powers to summon and prorogue the sessions of both
Houses of Parliament and to dissolve the Lok Sabha.
 President has the power to call Joint Session
 President has the power to send messages to Parliament on Bills
 President gives assent to the bills passed by the Parliament
• Powers of rule-making under the Constitution (Art. 77)
• Power to proclaim an emergency
• Power to make ordinances (Art. 123)
In ex-parte , Grossmam, 267 US 87 (1925), The Supreme Court has justified the
existence of the power of clemency in the executive stating:
―Executive clemency exists to afford relief from undue harshness or evident
mistake in the operation or enforcement of the criminal law. The administration of
justice by the courts is not necessarily always wise or certainly considerate of
circumstances which may properly mitigate guilt…..Our Constitution confers this
discretion on the highest office in the nation in confidence that he will not abuse it.‖
As per Law Commission of India‘s 25th Report on Capital Punishment, 1967:
―There may be many matters which may not have been considered by the courts.
The hands of the court are tied down by the evidence placed before it. A sentence of
death passed by a court after consideration of all the materials placed before it may
yet require reconsideration because of:
(i) Facts not placed before the court
(ii) Facts placed before the court but not in the proper manner
(iii) Facts discovered after the passing of the sentence
(iv) Events which have developed after the passing of the sentence and
(v) Other special features. Nor can one codify and select these special features
which would be too numerous to lend themselves to codification.
The President of India, in consultation with the Council of Ministers, makes all
major appointments under the Constitution:-
 Prime Minister and other Central Ministers
 Governors of States and Lieutenant Governor of Union Territories
 Chief Justice of India and judges of the Supreme Court and High Courts,
 Comptroller Auditor General of India
 Chief Election Commissioner and other Election Commissioners
 Appointment of Finance Commission
 National Commission for the Schedule Castes and Scheduled Tribes
 The Chairperson, Vice-Chairperson and other Members of the National
Commission for backward classes
 Commission on official languages
 Appointment of a Commission to investigate the conditions of backward
classes
 The Chairman and other Members of the Union Public Service Commission
 The Chief Minister of the National capital territory of Delhi [Article 239 AA (5)
of the constitution]
 Attorney General of India
Some of extra-constitutional appointments are:-
 Vice-Chancellor of the Central University
 Ambassadors and High Commissioners to other countries (only through the list
of names given by the Prime Minister)
 Academic staff of the Central Universities through his nominee
 Officers of the All India Services (IAS, IPS and IFoS), and other Central Civil
Services in Group ‗A‘.
 The Central Vigilance Commissioner and the Vigilance Commissioners
 The Chairperson and Members of Lokpal
 Chief of Defence Staff (CDS)
Functions of Chief of Defence Staff (CDS)
 Principal Military Advisor to the Defense Minister on all tri-Services matters.
 Military advisor to the Atomic Command Authority.
 Member of the Defense Acquisition Council headed by the Minister of Defense.
 Permanent chairman of the Chiefs of Staff Committee.
 Head of the Department of Military Affairs.
The Central Vigilance Commissioner and the Vigilance Commissioners shall be
appointed by the President on recommendation of a Committee consisting of:-
Prime Minister (Chairperson)
Minister of Home Affairs (Member)
and the Leader of the Opposition in the House of the People (Member)
The term of office of the Central Vigilance Commissioner and the Vigilance
Commissioners would be four years from the date on which they enter their office
or till they attain the age of 65 years, whichever is earlier.
To inquire or cause an inquiry or investigation to be made on a reference by the
Central Government or on any complaint received against any official belonging to
such category of officials specified in sub-section 2 of Section 8 of the CVC Act
Exercise superintendence over the functioning of the Delhi Special Police
Establishment (CBI) insofar as it relates to the investigation of offences under the
Prevention of Corruption Act, 1988; or an offence under the Cr.PC for certain
categories of public servants
Review the progress of the applications pending with the competent authorities for
sanction of prosecution under the Prevention of Corruption Act
Shall have all the powers of a Civil court while conducting any inquiry
Review the progress of the applications pending with the competent authorities for
sanction of prosecution under the Prevention of Corruption Act, 1988
The Central Vigilance Commissioner (CVC) is the Chairperson and the Vigilance
Commissioners (Members) of the Committee, on whose recommendations, the
Central Government appoints the Director of Enforcement and CBI
Commission‘s Jurisdiction under CVC Act are:-
Members of All India Service serving in connection with the affairs of the Union
and Group A officers of the Central Government
Officers of the rank of Scale V and above in the Public Sector Banks
Officers in Grade D and above in Reserve Bank of India, NABARD and SIDBI
Chief Executives and Executives on the Board and other officers of E-8 and above
in Schedule ‗A‘ and ‗B‘ Public Sector Undertakings
Chief Executives and Executives on the Board and other officers of E-7 and above
in Schedule ‗C‘ and ‗D‘ Public Sector Undertakings
Managers and above in General Insurance Companies
Senior Divisional Managers and above in Life Insurance Corporations
Officers drawing salary of Rs.8700/- p.m. and above on Central Government D.A.
pattern, as on the date of the notification and as may be revised from time to time in
Societies and other Local Authorities
An Act to provide for the establishment of a body of Lokpal for the Union and
Lokayukta for States to inquire into allegations of corruption against certain public
functionaries and for matters connected therewith or incidental thereto.
WHEREAS the Constitution of India established a Democratic Republic to ensure
justice for all;
AND WHEREAS India has ratified the United Nations Convention Against
Corruption;
AND WHEREAS the Government's commitment to clean and responsive
governance has to be reflected in effective bodies to contain and punish acts of
corruption;
NOW, THEREFORE, it is expedient to enact a law, for more effective
implementation of the said Convention and to provide for prompt and fair
investigation and prosecution in cases of Corruption
Appointment of Lokpal
The Chairperson and Members shall be appointed by the President after obtaining
the recommendations of a Selection Committee consisting of:-
(a) the Prime Minister - Chairperson;
(b) the Speaker of the House of the People - Member;
(c) the Leader of Opposition in the House of the People - Member;
(d) the Chief Justice of India or a Judge of the Supreme Court nominated by him -
Member;
(e) one eminent jurist, as recommended by the Chairperson and Members referred
to in clauses (a) to (d) above, to be nominated by the President - Member.
The Lokpal shall consist of:-
(a) a Chairperson, who is or has been a Chief Justice of India or is or has been a
Judge of the Supreme Court or an eminent person if he is a person of impeccable
integrity and outstanding ability having special knowledge and expertise of not less
than 25 years in the matters relating to anti-corruption policy, public administration,
vigilance, finance including insurance and banking, law and management.
(b) such number of Members, not exceeding 8 out of whom 50% shall be Judicial
Members provided that not less than 50% of the Members of the Lokpal shall be
from amongst the persons belonging to the SC, ST, OBC, Minorities and women.
PROCEDURE IN RESPECT OF PRELIMINARY INQUIRY
The Lokpal on receipt of a complaint, if it decides to proceed further, may order—
(a) preliminary inquiry against any public servant by its Inquiry Wing or any
agency (including the Delhi Special Police Establishment / CBI) to ascertain
whether there exists a prima facie case for proceeding in the matter; or
(b) investigation by any agency when there exists a prima facie case:
Provided that the Lokpal shall refer the complaint in respect of public servants
belonging to Group A or Group B or Group C or Group D to the CVC.
(3) A bench consisting of not less than three Members of the Lokpal shall consider
every report received under sub-section (2) from the Inquiry Wing or any agency
and after giving an opportunity of being heard to the public servant, decide whether
there exists a prima facie case, and proceed with one or more of the following
actions, namely:—
(a) investigation by any agency or CBI, as the case may be;
(b) initiation of the departmental proceedings or any other appropriate action
against the concerned public servants by the competent authority;
(c) closure of the proceedings against the public servant and to proceed against
the complainant under section 46.
APPOINTMENT OF LOKPAL
PC Ghose's name was finalised and recommended in a Selection Committee
meeting comprising Prime Minister Narendra Modi, Chief Justice Ranjan Gogoi,
Lok Sabha Speaker Sumitra Mahajan, and eminent jurist Mukul Rohatgi on Sunday
(March 17). The leader of Opposition in Lok Sabha and Congress member,
Mallikarjun Kharge, who is part of the committee, did not attend the meeting.
Justice Ghose, 67, who is a member of the National Human Rights Commission
(NHRC) since June 2017, has been a Supreme Court Judge from March 8, 2013 till
May 27, 2017. His was among the top 10 names shortlisted by the Lokpal Search
Committee. Pinaki Chandra Ghose has been a former judge of the Calcutta High
Court and former Chief Justice of the Andhra Pradesh High Court.
He was appointed as India's first Lokpal on 19th March, 2019, Tuesday and took
oath as the first Lokpal of India on Saturday, 23rd March, 2019.
The oath was administered by President Ram Nath Kovind at a ceremony held at
the Rashtrapati Bhavan, a communique issued by the President's office said. Prime
Minister Narendra Modi, Vice President M Venkaiah Naidu and Chief Justice of
India Ranjan Gogoi were also present at the ceremony.
Grounds:-Art. 61 - (1) When a President is to be impeached for violation of the
Constitution, the charge shall be preferred by either House of Parliament.
Conditions of Charge:-(2) No such charge shall be preferred unless—
(a) the proposal to prefer such charge is contained in a resolution which has been
moved after at least fourteen days' notice in writing signed by not less than one-
fourth of the total number of members of the House has been given of their
intention to move the resolution, and
(b) such resolution has been passed by a majority of not less than two-third of the
total membership of the House.
Process:-(3) When a charge has been so preferred by either House of Parliament,
the other House shall investigate the charge or cause the charge to be investigated
and the President shall have the right to appear and to be represented at such
investigation.
(4) If as a result of the investigation a resolution is passed by a majority of not less
than two-thirds of the total membership of the House by which the charge was
investigated or caused to be investigated, declaring that the charge preferred against
the President has been sustained, such resolution shall have the effect of removing
the President from his office as from the date on which the resolution is so passed.
Art. 361 - (1) The President, or the Governor or Rajpramukh of a State, shall not be
answerable to any court for the exercise and performance of the powers and duties
of his office or for any act done or purporting to be done by him in the exercise and
performance of those powers and duties:
Provided that the conduct of the President may be brought under review by any
court, tribunal or body appointed or designated by either House of Parliament for
the investigation of a charge under article 61:
Provided further that nothing in this clause shall be construed as restricting the right
of any person to bring appropriate proceedings against the Government of India or
the Government of a State.
(2) No criminal proceedings whatsoever shall be instituted or continued against the
President, or the Governor of a State, in any court during his term of office.
(3) No process for the arrest or imprisonment of the President, or the Governor of a
State, shall issue from any court during his term of office.
(4) Civil proceedings may be initiated against the President, or the Governor, in any
court in respect of any act done or purporting to be done by him in his personal
capacity, after giving two months of delivery of notice in writing.
Art. 124(5) Parliament may by law regulate the procedure for the presentation of
an address and for the investigation and proof of the misbehaviour or incapacity of
a Judge.
S. 3 of Judges (Inquiry) Act, 1968 provides:-
3. (1)Investigation into misbehaviour or incapacity of Judge by Committee.
If notice is given of a motion for presenting an address to the President praying
for the removal of a Judge signed,-
(a) in the case of a notice given in the House of the People, by not less than one
hundred members of that House;
(b) in the case of a notice given in the Council of States, by not less than fifty
members of that Council; then, the Speaker or, as the case may be, the
Chairman may, after considering such materials, either admit the motion or
refuse to admit the same.
(2) It the motion is admitted, a Committee is constituted consisting of 3 members:-
(a) one shall be chosen from among the Chief Justice and other Judges of the
Supreme Court ;
(b) one shall be chosen from among the Chief Justices of the High Courts; and
(c) one shall be a person who is, in the opinion of the Speaker/ Chairman, a
distinguished jurist
 Authority Functions Process of Removal

CAG To audit all expenditure from the Resignation to:

Appointed by: Consolidated Fund of the union President
President or state governments
Expenses: Charged from
Oath: before the Conditions: As per The Consolidated Fund of India
President, or Comptroller and Auditor-
some person General's (Duties, Powers & Removal Process:
appointed in that Conditions of Service) Act, Same as that of SC Judges
behalf by him 1971. Salary and other
conditions same as that of Judge Conditions after retirement:
Term: 6 Years or upto of Supreme Court of India. Ineligible for holding any Govt
65 years whichever is Post after retirement
earlier Reports of CAG relating to the
accounts of the Union shall be
submitted to the President, who
Shall cause them to be laid
before each House of
Parliament.
 Authority Removal Functions Appointment
Chief Election Removal Process: To conduct free and Appointed by : President
Commissioner Same as that of SC fair elections
Judges Conditions:
Oath delivered: The Chief Election
N/A Term: upto 6 yrs Commissioner and other
or 65 yr whichever Election Commissioners (
Resignation to: is earlier Conditions of Service) Act,
President 1991

Salary: Same as
SC Judge i.e.
2,50,000/-
Election On - Same- - Same-
Commissioner, recommendations
same except pay of CEC

Salary: Same as Term: upto 6 yrs

that of SC Judge or 65 yr whichever
i.e. 2,50,000/- is earlier
 Authority Qualifications Functions Process of Removal

UPSC Chairman ½ of members •Conduct exams and By order of President,

Appointed by to have 10 yrs appointments of services on grounds of:-
:President exp. in Govt. of Union •Misbehaviour (inquired
Oath: N/A •Provide consultation on & reported by SC)
Term: 6 Years or Conditions: Recruitment •Insolvency,
upto 65 years Ineligible for Promotions •Any paid employment
whichever is holding any Transfers •Infirmity of Mind/Body
earlier post in UPSC Disciplinary Matters
Resignation to: after retirement Claims and pension Expenses: Charged from
President Consolidated Fund of
Salary: Same as Regulated by: UPSC India
CEC Members Regulation
(Amendment) Act, 2007
UPSC Member Conditions: - Same- - Same-
- Same- Same but may
Term: 6 years become
or upto 62 years Chairman of
Salary: Same as SPSC or UPSC
EC
1981: PRIMACY OF EXECUTIVE
In S.P. Gupta v. Union of India [Judges Transfer Case], the Supreme Court gave
primacy to President (executive) in appointment of Judges.
1987: Law Commission in its 121st report
This report advocated setting up of Judicial Commission for selection and
appointment of Judges
1993: COLLEGIUM (PARTICIPATORY CONSULTATIVE PROCESS)
In SC Advocates-on-Record Assn. v. UOI [Second Judges Case], the Supreme Court
held that appointment of Judge is initiated by the Chief Justice of India (CJI)
through a collegium consisting of himself and four senior most judges of the Court.
The recommendation of collegium is binding on the President.
1999: CONSULTATION OF PLURALITY OF JUDGES
In re Special reference No 1 1998 [an Advisory opinion in Appointment and
Transfer of Judges case], the Supreme Court held that CJI has to consult four senior
most judges of Supreme Court and if two of four disagree on some name, it could
not be recommended.
2002: NATIONAL JUDICIAL COMMISSION
The National Commission to review the Working of the Constitution opined that a
National Judicial Commission should be constituted for making recommendations
as to the appointment of judges of superior courts.
2014: NATIONAL JUDICIAL APPOINTMENTS COMMISSION (NJAC)
Constitution (Ninety-Ninth Amendment) Act, 2014 established NJAC.
2015: On October 16, 2015
Constitution Bench of Supreme Court in Supreme Court Advocates-on-record
Association v. Union of India, 2015 upheld Collegium system and declared NJAC
unconstitutional.
The process of appointment of judges by the President is provided under Article
124(2) of Constitution of India. It also provides that judges shall hold office until
age of sixty five years
ORIGINAL
Hon‘ble Supreme Court shall have original jurisdiction in any dispute—
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on one side and one or
more other States on the other; or
(c) between two or more States
(d) for enforcement of Fundamental Rights of citizens (under Article 32).
APPELLATE
The Supreme Court shall have power to decide an appeal in Constitutional, Civil,
Criminal and other matters.
REVIEW
The Supreme Court shall have power to review any judgment pronounced or order
made by it.
ADVISORY
President may refer a question of law or fact, of public importance to Supreme
Court for its consideration and the Court may, report to the President its opinion.
OTHER
Parliament may by law enlarge the jurisdiction of the Supreme Court
 SUBSTANTIAL CASE CIVIL CASE CRIMINAL IN ANY CASE
In any case, if the High In a civil case if the In a criminal Supreme Court may,
Court certifies that the case High Court case where in its discretion, grant
involves a substantial certifies that the High court has special leave to appeal
question of law as to the case involves a passed death from any judgment in
interpretation of this substantial question sentence or if any case made by any
Constitution. of law of general High Court court
importance certifies
143.Power of President to consult Supreme Court-
(1) If at any time it appears to the President that a question of law or fact has
arisen, or is likely to arise, which is of such a nature and of such public
importance that it is expedient to obtain the opinion of the Supreme Court upon
it, he may refer the question to that Court for consideration and the Court may,
after such hearing as it thinks fit, report to the President its opinion thereon.
(2) The President may, notwithstanding anything in the proviso to Article 131,
refer a dispute of the kind mentioned in the said proviso to the Supreme Court
for opinion and the Supreme Court shall, after such hearing as it thinks fit,
report to the President its opinion thereon.
In Re Delhi Laws Act AIR 1951 SC 332 case was the first one in which the
question of delegation of legislative power was considered by the Supreme Court.
It is worth nothing that each of the seven judges who participated in the decision
gave separate opinion All of them agreed and expressed mainly two views,
(i) the Parliament is free to delegate its legislative power to any extent subject to
the limitation that it must not efface itself or abdicate its powers.
(ii) the Parliament could not delegate to another agency its 'essential' legislative
function, which meant the formulation of policy and enacting it into a binding
rule of conduct.
In a landmark judgement in Ismail Faruqui v. Union of India [(1994) 6 SCC
360], the five judge bench of the Supreme Court held that the Presidential reference
seeking the Supreme Court‘s opinion on whether a temple originally existed at the
site where the Babari Masjid subsequently stood was superfluous and unnecessary
and opposed to secularism and favoured one religious community and therefore,
does not required to be answered. The Government proposed to use the Court's
opinion as a springboard for negotiations. It did not propose to settle the dispute in
terms of the Court's opinion. Any opinion expressed by the Supreme Court would
be criticised by one or both sides. This would impair the Court's credibility and
compromise the dignity and honour of the Court.
Cauvery Dispute Tribunal (AIR 1992 SC 522)
The Cauvery water disputes arosein 1892 between the princely state of Mysore and
Madras Presidency which imposed restrictions on Mysore to build storage
reservoirs on the Cauvery. An agreement of 1924 was signed between two
government. Dispute comes into a new phase when on June 2, 1990 a tribunal
known as "Cauvery Water Disputes Tribunal" was constituted by the central
government. The tribunal gave an interim order in June 1991 directing the State of
Karnataka to release a particular quantity of water for the State of Tamil Nadu.
The Karnataka government promulgated an Ordinance empowering the government
not to honour the interim Order of the Tribunal. The Court on President‘s reference
held that the Karnataka Ordinance was unconstitutional as it nullifies the decision
of the Tribunal appointed under the Central Act (Inter Sate Water Dispute Act,
1956) which has been enacted under Article 262 of the Constitution. The Ordinance
is also against the principles of the rule of law as it has assumed the role of a Judge
in its own cause.
145.Rules of Court, etc.-
(1) Subject to the provisions of any law made by Parliament the Supreme Court
may from time to time, with the approval of the President, make rules for regulating
generally the practice and procedure of the Court including-
(a) rules as to the persons practicing before the Court,
(b) rules as to the procedure for hearing appeals, and other matters pertaining to
appeals including the time within which appeals to the Court are to be entered;
(c) rules as to the proceedings in the Court for the enforcement of any of the rights
conferred by Part III;
(cc) rules as to the proceedings in the Court under Article 139A;
(d) rules as to the entertainment of appeals under sub-clause c of clause (1) of
Article 134;
(e) any judgment pronounced or order made by the Court may be received and rules
as to the conditions the procedure for such review including the time within which
applications to the Court for such review are to be entered;
(f) rules as to the costs of and incidental to any proceedings in the Court and as to
the fees to be charged in respect of proceeding therein;
(g) rules as to the granting of bail;
(h) rules as to stay of proceedings;
(i) rules providing for the summary determination of any appeal which appears to
the Court to be frivolous or vexatious or brought for the purpose of delay;
(j) rules as to the procedure for inquiries referred to in clause (1) of Article 317.
(2) Subject to the provisions of clause (3), rules made under this article may fix the
minimum number of Judges who are to sit for any purpose, and may provide for the
powers of single Judges and Division Courts.
(3) The minimum number of Judges who are to sit for the purpose of deciding
any case involving a substantial question of law as to the interpretation of this
Constitution or for the purpose of hearing any reference under Article 143 shall be
five:
Provided that, where the Court hearing an appeal under any of the provisions of this
chapter other than Article 132 consists of less than five Judges and in the course of
the hearing of the appeal the Court is satisfied that the appeal involves a substantial
question of law as to the interpretation of this Constitution the determination of
which is necessary for the disposal of the appeal, such Court shall refer the question
for opinion to a Court constituted as required by this clause for the purpose of
deciding any case involving such a question and shall on receipt of the opinion
dispose of the appeal in conformity with such opinion.
(4) No judgment shall be delivered by the Supreme Court save in open Court, and
no report shall be made under Article 143 save in accordance with an opinion also
delivered in open Court.
(5) No judgment and no such opinion shall be delivered by the Supreme Court save
with the concurrence of a majority of the Judges present at the hearing of the case,
but nothing in this clause shall be deemed to prevent a Judge who does not concur
from delivering a dissenting judgment or opinion.
In exercise of the powers conferred by Article 145 of the Constitution, the Supreme
Court with the approval of the President enacted Supreme Court Rules, 2013.
Harbanslal Sahnia vs. Indian Oil Corpn. Ltd. (2003) 2 SCC 107– In this case, it
was held that the rule of exclusion of writ jurisdiction by availability of an
alternative remedy is a rule of discretion and not one of compulsion. In an
appropriate case in spite of availability of the alternative remedy, the High Court
may still exercise its writ jurisdiction in at least three contingencies: (i) where the
writ petition seeks enforcement of any of the Fundamental Rights; (ii) where there
is failure of principles of natural justice or, (iii) where the orders or proceedings are
wholly without jurisdiction or the vires of an Act and is challenged.
Commissioner of Income Tax v. Chhabil Dass Agrawal [(2014) 1 SCC 603
The Apex Court opined it is a rule of self- imposed limitation by not entertaining
petitions under the writ jurisdiction by the High Courts where efficacious or
alternative remedy is available. It is essentially a rule of policy, convenience and
discretion rather than a rule of law.
It is within the discretion of the High Court to grant relief under Article 226 of the
Constitution of India even if there is an adequate efficacious alternative remedy
available to the petitioner. It is only when he has approached the High Court in an
exceptional case warranting such interference or if there is sufficient grounds to
invoke the extraordinary jurisdiction under Article 226 of the Constitution of India.
K.M. Nanavati vs The State Of Bombay 1961 SCR (1) 497
The High Court convicted the petitioner under S. 302 IPC and sentenced him to
imprisonment for life. On the same day of judgment, the Governor of Bombay
passed an order under Art. 161 of the Constitution of India suspending the sentence
passed by the High Court of Bombay until the SLP intended to be filed by him in
the Supreme Court.
Thereafter the petitioner filed an application for special leave in the Supreme Court
and also another application praying for exemption from compliance with O XXI R
6 of Supreme Court Rules 1966, that required mandatory surrendering to his
sentence before filing SLP.
On the principle of harmonious construction and- to avoid a possible conflict
between the powers given under Art. 161 to the Governor and under Art. 142 to the
Supreme Court, both of which are absolute and unfettered in their respective fields
of operation, it must be held that. Art. 161, does not deal with the suspension of
sentence during the time that Art. 142 is in operation and the matter is sub-judice in
the Supreme Court.
Article 124(3) provides qualifications of Supreme Court Judge is as under:
1. He must be citizen of India and
2. has been for at least five years a Judge of a High Court(s) or
3. has been for at least ten years an advocate of a High Court(s) or
4. is, in the opinion of the President, a distinguished jurist.
REMOVAL OF JUDGES
Grounds: proved misbehaviour or incapacity
Process: An address is passed by each House of Parliament
The address is supported 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
The address has been presented to the President in the same session
President by an order removes the judge
Art. 124(5) Parliament may by law regulate the procedure for the presentation of
an address and for the investigation and proof of the misbehaviour or incapacity of
a Judge.
Art. 125: Neither the privileges nor the allowances of a Judge nor his rights in
respect of leave of absence or pension shall be varied to his disadvantage after his
appointment.
Art. 124(7): No person who has held office as a Judge of the Supreme Court shall
plead or act in any court or before any authority within the territory of India.

Art. 129: The Supreme Court shall be a court of record (records are maintained for
perpetual reference) and shall have all the powers of such a court including the
power to punish for contempt of itself.
Art. 124(2A): The age of a Judge of the Supreme Court shall be determined by
such authority and in such manner as Parliament may by law provide
Art. 220: No person who, after the commencement of this Constitution, has held
office as a permanent Judge of a High Court shall plead or act in any court or
before any authority in India except the Supreme Court and the other High Courts.
Art. 217(3): If any question arises as to the age of a Judge of a High Court, the
question shall be decided by the President after consultation with the Chief Justice
of India and the decision of the President shall be final.
 Authority Qualifications Functions Process of Removal
Supreme Court (a)5 yrs as •To settle dispute between By order of the President
Judge Judge of HC(s); Union and States Ground: proved
Appointed by : or •Enforcing Fundamental misbehaviour or
President after Rights (Art. 32) incapacity.
consultation with (b) has been an •To review its own Resolution: passed after
Collegium headed advocate of a judgments an address by each House
by CJI, 4 Senior HC for 10 yrs; •Advisory opinion to of Parliament
most SC Judges or President on question of Supported by: a majority
Oath delivered: public importance of the total membership
By President or (c) is, in the •Appellate jurisdiction and by a majority of not
some person opinion of the •Special leave to appeals less than 2/3rd of the
appointed by him President, a •Court of record members of that House
Term: upto 65 yr distinguished Conditions: present and voting
Resignation to: jurist. Shall not practice in any Presented to: President in
President Court or Authority within the same session
Salary: 250,000/- territory of India
Chief Justice of Senior most SC - Same- - Same-
India, same except judge and in addition to
Salary: Administrative functions
2,80,000/-
 Authority Qualifications Functions Appointment
High Court (a)10 yrs as •Court of record Appointed by :
Judge Judicial Officer •To issue certain writs •President after consultation
Oath delivered: in territory of under Art. 226 for the with Collegium headed by the
By Governor or India; or enforcement of Chief Justice of India, 2
some person Fundamental Rights Senior most SC Judges, the
appointed on his (b) has been an and for any other Governor of the State, and, in
behalf advocate of purpose the case of appointment of a
Term: upto 62 yr HC(s) for at •superintendence over Judge other than the Chief
Resignation to: least 10 yrs; or all courts & tribunals Justice, the Chief Justice of HC
President within its territorial Conditions:
Salary: jurisdiction •Judge of a HC shall not
2,25,000/- practice in any court or
Removal Process authority in India except the
Same as that of Supreme Court and the other
SC Judges High Courts.
Chief Justice of - Same- - Same- - Same-
HC, same except and in addition to
Salary: Administrative work
2,50,000/-
 Authority Appointed By / Elected by Oath by Removal / Salary
Resignation to

President Electoral College consisting of Chief Justice Impeachment 5,00,000

Members of Parliament and of India or by resolution of
Legislative assemblies of senior most both houses of
States. Term 5 years. SC Judge Parliament /
Vice-President
Vice- Electoral College consisting of President or Through 4,00,000
President Members of Parliament . his delegatee resolution by
Term 5 years. Parliament
CJI President (generally Senior President or Resolution by 2,80,,000
most SC Judge is appointed). his delegatee Parliament /
Retirement age 65 years. President
Supreme President on recommendation President or Same 2,50,000
Court Judge of collegium of 4 senior most his delegatee
SC Judges headed by CJI
Chief Justice President on recommendation Governor or Same 2,50,000
of High Court of collegium headed by CJI his delegatee
HC Judge Same, Retirement age 62 yrs. Same Same 2,25,000
 Authority Appointed By / Elected by Oath by Removal / Salary
Resignation to

Comptroller President for term of 6 years President or Same as Judge 2,50,000

Auditor or retirement age of 65 years, his delegatee of Supreme
General whichever is earlier Court
Chief Election Same No oath Same 2,50,000
Commissioner
Election President for term of 6 years No oath By President on 2,50,000
Commissioner or retirement age of 62 years, recommendation
whichever is earlier of CEC

UPSC President for term of 6 years No oath President 2,50,000

Chairman or retirement age of 65 years,
whichever is earlier
UPSC Same as UPSC Chairman No oath President 2,50,000
Members
Attorney President No oath President President
General for decides
India
 Designation Salary

President Rs. 5,00,000/-

Vice – President Rs. 4,00,000/-
Governor Rs. 3,50,000/-
Chief Justice of India Rs. 2,80,000/-
Supreme Court Judge Rs. 2,50,000/-
Chief Justice of HC Rs. 2,50,000/-
High Court Judge Rs. 2,25,000/-
The salaries of Supreme Court Judges shall be charged from Consolidated Fund of
India
The privileges and allowance of judges shall not be varied to their disadvantage after
their appointment.
The salaries and service conditions of SC and HC judges are paid according to
Supreme Court Judges (Salaries and Conditions of Service) Act, 1958, High Court
Judges (Salaries and Conditions of Service) Act, 1954 and The High Court and
Supreme Court Judges (Salaries And Conditions of Service ) Amendment Act, 2018
 INDIA PARLIAMENT

PRESIDENT

HOUSE OF COUNCIL
PEOPLE OF STATES
 HOUSE OF PEOPLE COUNCIL OF STATES
Elected Members from Elected representatives of
State Constituencies = 530 States and Union Territories = 238
Representatives from
Union Territories = 20 Nominated members by
President in the field of
Members nominated by Literature, Science, Art
President if they are not and Social Service = 12
Adequately represented
in House of People = 2 Total = 250
Const. 104th amendment Representatives from States are
Act, 2019 (126th Bill) elected by Members of Legislative
Total = 552 550 Assemblies

States are divided into From UT‟s are chosen as per Law
constituencies based on population made by Parliament
1. Legislation: An ordinary bill becomes an Act when it is passed by both Houses
of Parliament and is assented to by the President.
2. Deliberations and Discussions: The Houses of Parliament are constantly
engaged in discussions, deliberation, debating public issues, shaping and
influencing government policies. Members of Parliament put questions to
Ministers on matters of Public importance.
3. Control of the Executive: In parliament form of government, the Executive is
responsible to Parliament. Parliament controls the Executive by criticising,
supervising, administrating and influencing government policies. Each House
of Parliament has instituted Committee system with a view to better organise
its work and discharge its functions effectively.
4. Control of Public Finance: The Indian Constitution devises an elaborate
machinery securing Parliamentary control over finances.
5. Removal of Certain High Officials: Parliament has power to impeach
President [Art 61], remove from office of Vice-President [Art 67 proviso (b)],
Judges of Supreme Court [Art 124(2) proviso (b)], Judges of High Court
[Art217(1) proviso (b)], Chief Election Commissioner [Art 324(5)] and
Comptroller and Auditor-General of India [Art. 148(1)].
6. Amendment to the Constitution: As per procedure laid down in Art. 368
The Supreme legislature of Union of India is called Parliament.
Parliament consists of the President and the two Houses- the Rajya Sabha (Council
of States / Upper House) and the Lok Sabha (House of People / Lower House).
Lok Sabha is subject to dissolution. Rajya Sabha is a permanent or continuing
House. One third of members of Rajya Sabha retire at expiration of every second
year and there must always be a President of India.
The President of India is a constituent part of Parliament, he does not sit or
participate in the discussions of either of the two Houses. But President has right to
address and send messages to Houses (Art 86)
As per Article 88 of Constitution of India, Every Minister and the Attorney-
General of India shall have the right to speak in, and otherwise to take part in the
proceedings of, either House, any joint sitting of the Houses, and any committee of
Parliament of which he may be named a member, but shall not by virtue of this
article be entitled to vote.
Generally the business in Parliament shall be transacted either in Hindi or English.
The President shall summon each House of Parliament from time to time and gap
between two session cannot be more than six months.
Normally 3 sessions of Parliament are held in a year:
(i) Budget Session – ( February to May)
(ii) Monsoon Session – (July to August)
(iii) Winter Session – ( November to December)
In case of Rajya Sabha, however, the Budget Session is split up into sessions with a
three to four week break in between so that it has four sessions in a year.
The President may from time to time summon or prorogue either House; or dissolve
the House of the People.
The President may address either House of Parliament or Joint session or send
messages to be taken into consideration.
At the commencement of the first session after each general election to the House
of the People and at the commencement of the first session of each year the
President shall specially address both Houses of Parliament assembled together.
The Lok Sabha is composed of representatives of the people chosen by direct
election on the basis of adult suffrage. That is why it is called the popular chamber.
The Lok Sabha (House of the People) was duly constituted for the first time on 17
April 1952 after the first General Elections held from 25 October 1951 to
21 February 1952. The first Session of the First Lok Sabha commenced on 13 May
1952.
Shri G.V. Mavalankar was the first Speaker of Lok Sabha (15 May 1952- 27
February 1956). Shri M. Ananthasayanam Ayyangar was the first Deputy Speaker
of Lok Sabha (30 May 1952-7 March 1956).
In legislative matters, both the Houses enjoy almost equal powers except in the case
of Money Bills. The main function of both the Houses is to pass laws. Every Bill
has to be passed by both the Houses and assented to by the President before it
becomes law. In case of Money Bills, the Lok Sabha has overriding powers.
When the Offices of both the Speaker and the Deputy Speaker fall vacant, the
duties of the Office of the Speaker are performed by such Member of
the Lok Sabha as the President may appoint for the purpose. The person so
appointed is known as the Speaker pro tem.
The Rules of Procedure and Conduct of Business in Lok Sabha provide that at the
commencement of the House or from time to time, as the case may be, the Speaker
shall nominate from amongst the Members a Panel of not more than ten
Chairpersons, any one of whom may preside over the House in the absence of the
Speaker and the Deputy Speaker when so requested by the Speaker or, in the
absence of the Speaker, by the Deputy Speaker. A Chairperson so nominated, holds
office until a new Panel of Chairpersons is nominated, unless he/she resigns earlier
from the Panel or is appointed a Minister or elected as Deputy Speaker.
Present speaker of Lok Sabha is Om Birla. Leader of the House in the Seventeenth
Lok Sabha is Shri Narendra Damodardas Modi. No Leader of the Opposition has
been recognised by the Hon‘ble Speaker in the 17th Lok Sabha.
The Rules of Procedure and Conduct of Business in Lok Sabha provide that at the
commencement of the House or from time to time, as the case may be, the Speaker
shall nominate from amongst the Members a Panel of not more than ten
Chairpersons, any one of whom may preside over the House in the absence of the
Speaker and the Deputy Speaker when so requested by the Speaker or, in the
absence of the Speaker, by the Deputy Speaker.
Term of Lok Sabha:
Unless sooner dissolved by the President, the Lok Sabha continues for five years
from the date appointed for its first meeting and no longer, as the expiration of the
period of five years operates as a dissolution of the House. However, while a
Proclamation of Emergency is in operation, this period may be extended by
Parliament by law for a period not exceeding one year at a time and not exceeding
in any case beyond a period of six months after the Proclamation has ceased to
operate. [Art 83(2) Proviso]
Quorum of House of People:
The quorum to constitute a sitting of the House is one-tenth of the total number of
Members of the House under article 100(3) of the Constitution.
In the case of Bills other than Money Bills and Constitution Amendment Bills, a
disagreement between the two Houses may arise when a Bill passed by one House
is rejected by the other House; or the Houses have finally disagreed as to the
amendments to be made in the Bill; or more than six months have elapsed from the
date of receipt of the Bill by the other House without the Bill being passed by it.
A joint sitting of both Houses is convened by the President for this purpose. [Article
108]
The Speaker of the Lok Sabha presides over the joint sitting of the two Houses.
[Article 118(4)]. The Speaker has a casting vote in the event of a tie. It is customary
for the Presiding Officer to exercise the casting vote in such a manner as to
maintain the status quo.
So far, joint sittings of the two Houses have taken place on three occasions. The
first joint sitting was held on 6 May 1961 following a disagreement between the
two Houses over certain amendments to the Dowry Prohibition Bill, 1959. This
was followed by another sitting on 9 May 1961 when the Bill, as amended, was
finally passed.
The second joint sitting was held on 16 May 1978, following the rejection by
the Rajya Sabha of the Banking Service Commission (Repeal) Bill, 1977 and the
Bill was passed.
The third joint sitting was held on 26 March 2002 when the motion to consider
the Prevention of Terrorism Bill, 2002, seeking to replace the Prevention of
Terrorism Ordinance (POTO) as passed by the Lok Sabha was rejected by
the Rajya Sabha. At this sitting held for the purpose of deliberating and voting on
the Prevention of Terrorism Bill, 2002, the Bill was passed.
Adjournment, Prorogation and Dissolution
"Adjournment" is a postponement of the sitting or proceedings of the House from
one time to another specified for the reassembling of the House. During the course
of a Session, the Lok Sabha may be adjourned from day to day or for more than a
day. It may also be adjourned sine die which means the termination of a sitting of
the House without any definite date being fixed for its next sitting.
"Prorogation" means the termination of a Session of the House by an order made
by the President under article 85(2)(a) of the Constitution. The Prorogation of the
House may take place any time, even while the House is sitting. However, usually,
prorogation follows the adjournment of the sitting of the House sine die.
"Dissolution" of the House means the end of the life of the Lok Sabha either by an
order made by the President under article 85 (2) (b) of the Constitution or on the
expiration of the period of five years from the date appointed for its first meeting.
Dissolution puts an end to the representative character of the individuals who at the
time compose the Lok Sabha.
Question Hour: Rule 32 of the ―Rules of Procedure and Conduct of Business in
Lok Sabha‖ provides that unless the Speaker otherwise directs, the first hour of
every sitting of the House shall be available for the asking and answering of
Questions. Thus, it is taken up from 1100hrs to 1200 hrs in every sitting. Normally,
there is no Question Hour during the first Session of the new Lok Sabha and also
on the day when the President addresses both houses assembled together or on the
day when General Budget is presented in Lok Sabha and on the sittings held during
the extended period of session or on Saturdays/Sundays and Holidays.
Parliamentary Question: It is one of the important Parliamentary devices
available to the Members to seek information on a matter of urgent public
importance subject to conditions imposed by the Rules of Procedure and Conduct
of Business in Lok Sabha and the Directions by the Speaker. A Member may ask
question for the purpose of obtaining information on a subject matter of public
importance within the special cognizance of the minister to whom it is addressed.
Calling attentions: Under this procedural device, a Member may, with the prior
permission of the Speaker, call the attention of a Minister to any matter of urgent
public importance and the Minister may make a brief statement thereon. There shall
be no debate on such a statement at the time it is made.
Motion: The term `motion' in parliamentary parlance means any
formal proposal made to the House by a Member for the purpose of eliciting a
decision of the House.
Adjournment Motion: is the procedure for adjournment of the business of the
House for the purpose of discussing a definite matter of urgent public importance,
which can be moved with the consent of the Speaker.
No confidence Motion: The Government must always enjoy majority support in
the popular House to remain in power. If need be, it has to demonstrate its strength
on the floor of the House by moving a Motion of Confidence and winning the
confidence of the House.
Zero Hour: The time immediately following the Question Hour and laying of
papers and before any listed business is taken up in the House has come to be
popularly known as the `Zero Hour'. As it starts around 12 noon, this period is
euphemistically termed as `Zero Hour'.
Starred question: A question for which an oral answer is desired by a member is
distinguished by an asterisk and is called a starred question.
Unstarred question: A question without an asterisk is called unstarred and is
admitted for written answers.
Breach of privilege:
When any of the privileges either of the Members individually or of the House in
its collective capacity are disregarded or attacked by any individual or authority, the
offence is called a breach of privilege.
Contempt of the House:
Any obstruction or impediment put before Houses or its Members in due discharge
of their duties, or which have a tendency of producing such result, may amount to
contempt of the House.
Constitutional Provisions for Breach of privilege:
Immunizing people‘s representatives from fear of criticism and penalisation for
what they say or do in the House is essential to enable them to freely express
themselves. Art.105 and Art.194 of the Indian Constitution lay down the powers,
privileges and immunities of Members of Parliament (MPs) and State Assemblies
respectively. No MP would be liable to any court proceeding for anything said or
done or any vote given in the House.
These immunities are modelled on the Privilege Pattern of the British Parliament.
The Constitution gives the Legislature the right to define by law their powers and
privileges. Until such law is defined, Legislators would have the same privileges as
were recognized by British Parliament. Further, the right to punish for breach of
privilege or contempt of House is also given to the Legislature.
A House has the power to punish members or non-members for ‗breach of
privilege‘ or ‗contempt of House‘ to safeguard its privileges and vindicate its
dignity. Privilege Committee of the House recommends the Speaker on the matters
of breach of privilege.
Non-members are punished by means of admonition, reprimand, imprisonment and
its members by additional means of suspension and expulsion.
Legislature‘s power to punish for its contempt can be grossly misused majorly
because of two reasons: Privileges are not codified and are kept on a higher
pedestal than Fundamental Right of Speech.
The freedom of speech available to the members on the floor of the House is
different from that available to the citizens under Article 19(2). A law made under
this article providing for reasonable restrictions on the freedom of speech of the
citizens would not circumscribe the freedom of speech of the members within the
walls of the House.
Statutory Provisions
Apart from the privileges as specified in the Constitution, the Code of Civil
Procedure, 1908, provides for freedom from arrest and detention of members under
civil process during the continuance of the meeting of the House or of a committee
thereof and forty days before its commencement and forty days after its conclusion.
Right of the House to regulate its proceedings
Each House of Parliament enjoys an inherent and exclusive authority to conduct
and regulate its proceedings in the manner it deems proper. This right is the natural
corollary of the immunity from proceedings in a court of law in respect of anything
said or done inside the House. It is well settled now that each House has the
exclusive jurisdiction over its internal proceedings.
No authority other than the House and its Presiding Officer has any say in the
matter relating to conduct of its proceedings. Accordingly, each House of
Parliament has been empowered under Article 118 of the Constitution to make rules
for regulating its procedure and conduct of its business.
Article 122 of the Constitution guarantees that the validity of proceedings of
Parliament cannot be questioned in any court of law for any ―alleged irregularity of
procedure‖
The right of freedom of speech in the House is, however, circumscribed by the
constitutional provisions and the rules of procedure. When a member violates any
of the rules, the Chair has ample powers conferred by the rules to deal with the
situation.
What is contempt:
Generally speaking, any act or omission which obstructs or impedes either House
of Parliament in the performance of its functions, or which obstructs or impedes
any member or officer of such House in the discharge of his duty, or which has a
tendency, directly or indirectly, to produce such results may be treated as a
contempt even though there is no precedent of the offence.
Members of Parliament have complete protection even though the words uttered by
them in the House are malicious and false to their knowledge. Courts have no
jurisdiction to take action against a member for his speech made in the House even
if it amounts to contempt of the court. But Article 121 restricts it as follows.
Art 121. Restriction on discussion in Parliament
No discussion shall take place in Parliament with respect to the conduct of any
Judge of the Supreme Court or of a High Court in the discharge of his duties except
upon a motion for presenting an address to the President praying for the removal of
the Judge as hereinafter provided.
The work done by the Parliament in modem times is varied and voluminous. Due to
limited time, it is not possible to give close consideration to all the legislative and
other matters that come up before it. A good deal of its business is, therefore,
transacted by what are called the Parliamentary Committees. Parliamentary
Committees are of two kinds:
Ad hoc: Ad hoc Committees are appointed for a specific purpose and they cease to
exist when they finish the task assigned to them and submit a report. The principal
Ad hoc Committees are the Select and Joint Committees on Bills. When a Bill
comes up before a House for general discussion, it is open to that House to refer it
to a Select Committee of the House or a Joint Committee of the two Houses. A
motion has to be moved and adopted to this effect in the House in which the Bill
comes up for consideration.
Standing Committees: Each House of Parliament has Standing Committees like
the Business Advisory Committee, the Committee on Petitions, the Committee of
Privileges and the Rules Committee. Of special importance is yet another class of
Committees which act as Parliament's ‗watch Dogs' over the Executive. These are
the Committees on Subordinate Legislation, the Committee on Estimates, the
Committee on Public Accounts etc.
Committee on Estimates
The Committee on Estimates consists of 30 members, all from Lok Sabha who are
elected by Lok Sabha every year from amongst its members according to the
principle of proportional representation by means of single transferable vote. This
system of election ensures that each Party/Group is represented on the Committee
in proportion to its strength in Lok Sabha.
The Chairperson of the Committee is appointed by the Speaker from amongst the
members elected to the Committee. Minister cannot to be Member of Committee.
The term of office of the members of the Committee does not exceed one year.
The functions of the Committee are
(a) to report what economies, improvements in organisation, efficiency or
administrative reform, consistent with the policy underlying the estimates, may
be effected;
(b) to suggest alternative policies in order to bring about efficiency and economy
in administration;
(c) to examine whether the money is well laid out within the limits of the policy
implied in the estimates; and
(d) to suggest the form in which the estimates shall be presented to Parliament.
Committee on Public Accounts
This Committee consists of 15 Members elected by the Lok Sabha; 7 Members of
the Rajya Sabha are also associated with it. A Minister is not eligible for election to
this Committee. The term of the Committee is one year. A member of opposition
acts as its chairman.
The main duty of the Committee is to ascertain whether the money granted by
Parliament has been spent by Government ''Within the scope of the Demand". The
Appropriation Accounts of the Government of India and the Audit Reports
presented by the Comptroller and Auditor General mainly form the basis for the
examination of the Committee. Cases involving losses, nugatory expenditure and
financial irregularities come in for severe criticism by the Committee.
Business Advisory Committee (Lok Sabha)
The Business Advisory Committee of Lok Sabha consists of 15 Members,
including the Speaker who is the ex-officio Chairperson. The Members are
nominated by the Speaker. Almost all sections of the House are represented on
the Committee as per the respective strength of parties in the House. The
function of the Committee is to recommend the time that should be allotted for
the discussion of such Government, Legislative and other business as the
Speaker, in consultation with the Leader of the House, may direct to be referred to
the Committee.
Rajya Sabha is a permanent body and is not subject to dissolution. But as nearly as
possible, one-third of its members retire every second year. Its term is six years but
a member elected in a bye-election serves for the remainder of the term of the
vacancy caused. Quorum of Rajya Sabha is one-tenth of the total members of the
House, i.e., 25 members. The Vice-President is the ex officio Chairman of Rajya
Sabha.
The Vice-President is elected by the members of an electoral college consisting of
the members of both Houses of Parliament in accordance with the system of
proportional representation by means of the single transferable vote. The Vice-
President holds office for a term of five years from the date on which he enters
upon his office.
The Deputy Chairman is elected by the members of Rajya Sabha from amongst its
members. While the office of Chairman is vacant, or during any period when the
Vice-President is acting as, or discharging the functions of the President, the duties
of the office of the Chairman are performed by the Deputy Chairman.
Rajya Sabha nominates six members on the panel of Vice-Chairmen, one of whom
presides over the House in the absence of both the Chairman and the Deputy
Chairman.
Leader of the House plays an important role in drawing up the programme of
official business in the House. Normally, the Prime Minister nominates a Minister
who is a member of the Rajya Sabha as Leader of the House, but if the Prime
Minister himself is a member of Rajya Sabha, he will act as the Leader of the
House
Members of Rajya Sabha
Members of Rajya Sabha are elected by the elected members of the Assemblies of
States and Union territories in accordance with the system of proportional
representation by means of the single transferable vote. He should be a citizen of
India above 30 years of age and possessing such other qualifications as may be
prescribed by law of Parliament. He has to be an elector in a parliamentary
constituency anywhere in India.
Twelve members nominated by the President of India from amongst persons having
special knowledge or practical experience in literature, science, art and social
service. While the nominated members of Rajya Sabha have a right to vote in the
election of the Vice-President of India, they are not entitled to vote in the election
of the President of India.
A Minister who is a Member of Lok Sabha has the right to speak in and otherwise
to take part in the proceedings of Rajya Sabha but has no right to vote in Rajya
Sabha and vice versa.
Rajya Sabha being a federal chamber - representing States/Union territories, enjoys
certain special powers:
 to empower Parliament to make laws in respect of any matter enumerated in the
State List in the national interest by adopting a resolution to this effect (article
249)
 creation of All India Services (article 312)
 approving Proclamations (issued under article 352 or article 356 or article 360)
if the Lok Sabha stand dissolved
In legislative matters, Rajya Sabha enjoys almost equal powers with Lok Sabha,
except in the case of Money Bills where the latter has overriding powers. Such Bills
cannot be introduced in Rajya Sabha and are deemed to have been passed if these
are not returned to Lok Sabha within fourteen days.
If a member of Rajya Sabha has to ask a question, he has to give a notice about it
on a prescribed form at least 15 days before he wants to ask question.
CHAIRMAN AND DEPUTY CHAIRMAN OF RAJYA SABHA
The Vice- President of India shall be ex officio Chairman of the Council of States.
The Council of States shall, as soon as may be, choose a member of the Council to
be Deputy Chairman and in case office of Deputy Chairman becomes vacant, the
Council shall choose another member to be Deputy Chairman.
Deputy Chairman
(a) shall vacate his office if he ceases to be a member of the Council;
(b) May, resign by writing to the Chairman
(c) may be removed from his office by a resolution passed by the Council after
giving fourteen days‘ notice by a majority of all the then members.
During absence of Chairman, Deputy chairman and in his absence, any member
determined by Council shall act as Chairman.
While the office of Chairman is vacant, or while he is acting as Vice-President, the
duties of the office shall be performed by the Deputy Chairman, or, if the office of
Deputy Chairman is also vacant, by such member appointed by the President.
REMOVAL OF CHAIRMAN AND DEPUTY CHAIRMAN
The Vice- President of India may be removed from his office by a resolution of the
Council of States passed after giving 14 days notice, by a majority of all the then
members of the Council and agreed to by the House of the People.
While any resolution for the removal of the Vice-President or Deputy Chairman is
under consideration, they shall not, though they are present, preside, and the
provisions shall apply as if they are absent
The Chairman shall have the right to speak in, and otherwise to take part in the
proceedings of, the Council of States while any resolution for the removal of the
Vice-President from his office is under consideration in the Council, but shall not
be entitled to vote at all on such resolution or on any other matter during such
proceedings.
The Vice- President of India shall be ex officio Chairman of the Council of States.
SPEAKER AND DEPUTY SPEAKER
The House of the People shall, as soon as may be, choose two members of the
House to be respectively Speaker and Deputy Speaker thereof and, so often as the
office of Speaker or Deputy Speaker becomes vacant, the House shall choose
another member to be Speaker or Deputy Speaker, as the case may be.
A member holding office as Speaker or Deputy Speaker of the House of the
People—
(a) shall vacate his office if he ceases to be a member of the House of the People;
(b) may at any time, by writing resign, if such member is the Speaker, to the Deputy
Speaker, and if such member is the Deputy Speaker, to the Speaker and
(c) may be removed from his office by a resolution of the House of the People
passed after giving 14 days notice by a majority of all the then members of the
House:
SPEAKER AND DEPUTY SPEAKER
While the office of Speaker is vacant, the Deputy Speaker or, if the office of
Deputy Speaker is also vacant, by such member as appointed by President shall act
as speaker
During the absence of the Speaker ,the Deputy Speaker or, if he is also absent, such
person as may be determined by House of People shall act as Speaker.
REMOVAL OF SPEAKER AND DEPUTY SPEAKER
(1) At any sitting of the House of the People, while any resolution for the removal
of the Speaker or Deputy Speaker from his office is under consideration, they
shall not, though present, preside, and the provisions shall apply as if they are
absent.
(2) The Speaker shall have the right to speak in, and otherwise to take part in the
proceedings of, the House of the People during such resolution and shall, be
entitled to vote only in the first instance.
A person to be qualified for filling a seat in Parliament if he is
(1) Citizen of India [Article 84(a) of the Constitution];
(2) must make and subscribe before some person authorised in that behalf by the
Election Commission an oath or affirmation [Article 84(a)];
(3) must not be less than 30 years of age in case of seat of Council of States and 25
years in case of seat in the House of People [Article 84(b)]
(4) Possess such other qualification as prescribed under law made by Parliament
such as Representation of the People Act, 1951. Some of qualifications required
are:
(a) A candidate must be an elector for any Parliamentary constituency (vide
section 4 of the Representation of the People Act, 1951);
(b) A candidate must be a member of any of the Scheduled Castes from any
State, for a seat reserved for the Scheduled Castes in any state;
(c) A candidate for the seat allotted to the State of Sikkim, must be an elector
for the parliamentary constituency for Sikkim;
A. CONSTITUTIONAL DISQUALIFICATIONS
A person shall be disqualified for being chosen as and for being, a member of either
House of Parliament if:
(1) He holds any office of profit under the Government of India or the
Government of any State, other than an office declared by Parliamentary law
not to disqualify the holder [Article 102(I) (a) of the Constitution]. To this
general rule, there are some exceptions.
The first exception is mentioned in Article 102(1) itself, according to which the
office of a Minister, either for the Union or for any State is not regarded as an office
of profit under the Government of India or the Government of any State.
The other exceptions are mentioned in the Parliament (Prevention of
Disqualification) Act, 1959 (10 of 1959). Some of them are:
 the office of a leader of the Opposition of Parliament
 the office of Deputy Chairman, Planning Commission
 the Office of the Chairperson of the national Advisory Council
 Office of chairperson of National Commission for Minorities/ SC / ST / Woman
 the office of chairman or member of a committee set up temporarily for the
purpose of advising the Government
(2) a person of unsound mind so declared by a competent court [Art. 102 (1) (b)].
(3) is an undischarged insolvent [Article 102(1) (c)].
(4) not a citizen of India or has voluntarily acquired the citizenship of a foreign
State or if you are under any acknowledgment of allegiance of adherence to a
foreign State. [Article 102(1) (d) of the Constitution].
(5) Statutory disqualified under any law made by Parliament [Article 102 (1) (e)].
B. STATUTORY DISQUALIFICATIONS
Some of disqualifications given in the Representation of the People Act, 1951 are:
 a person convicted by court in India for an offence punishable for not less than 2
years is disqualified for a period of six years since his release from prison.
 the prevention of hoarding or profiteering or of adulteration of food or drugs or
any provision of the Dowry Prohibition act, 1961 etc. for any punishment
 for a corrupt practice at an election
 for failure to lodge account of election expenses within the time and in the
manner required
For any question related to above disqualification of an MP, such question shall be
referred to President, who shall obtain and act on opinion of Election Commission.
Decision taken by President (based on opinion of EC) shall be final.
C. DISQUALIFICATION FOR DEFECTION
A person shall be disqualified for being member of either House of Parliament if he
is so disqualified under the Tenth Schedule on grounds of Defection such as:
 If a candidate voluntarily gives up his membership of a political party or joins
any other political party
 If he votes or abstains from voting in House contrary to direction issued by
political part
 If an independent candidate after winning elections joins any political party
 If a nominated member of Rajya Sabha joins political party after six months of
becoming a member.
 If two third of members of a political party separate and merge with another
political party or form a new political party, then those members shall not be
disqualified for defection
If any question arises as to whether a member of a House has become subject to
disqualification under this Schedule, the question shall be referred for decision of
Speaker of Lok Sabha or Chairman of Rajya Sabha. The decision of Speaker of
Chairman as the case may be shall be final.
ELECTION OF A PERSON NOT QUALIFIED OR WAS DISQUALIFIED
There is no procedure laid down in our Constitution, if a disqualified person is
elected but statutory provisions are available. Section 100(1)(a) of Representation
of People Act, 1951, enables High Court to declare election void if disqualified
candidate is elected.
The Court having jurisdiction to try an election petition shall be the High Court
(Section 80A of RPA).
An election petition as per Art 329(b) may be presented to the High Court within 45
days of date of election of returning candidate u/s 81 of Representation Act, 1951
on the grounds mentioned u/s 100(1). Some of the grounds are that on date of
election, returned candidate was not qualified or was disqualified or any corrupt
practice has been committed by him.
DISPUTES RELATED TO ELECTION OF PRESIDENT/VICE-PRESIDENT
According to Article 71(1) All doubts and disputes arising out of or in connection
with the election of President or Vice-President shall be inquired into and decided
by Supreme Court whose decision shall be final.
The petitioner a Rajya Sabha member was divested of her Rajya Sabha membership
in March 2006 by the President on advice of the Election Commission as per
Article 103 of Constitution. She held office of Chairperson of U.P. Film
Development Council with entitlement to honorarium and several allowances and
perquisites even though the petitioner claimed to have received none, the Court
held that ―where the office carries with it certain emoluments then it will be an
office of profit even if the holder of the office chooses not to receive/draw such
emoluments.‖
Several other cases were also reported to be pending when the two Houses of the
Parliament passed a Bill to retrospectively prevent the disqualification of a large
number of members who were alleged to be occupying high offices of profit under
the Government. These included the Speaker Lok Sabha Shri Som Nath Chatterjee
and Leader of United Progressive Alliance (UPA), Smt. Sonia Gandhi.
President Abdul J. Kalam returned the Parliament (Prevention of Disqualification)
Amendment Bill, 2006 under Article 111 raising various points and requesting that
Bill be reconsidered. The bill was passed again in Parliament by majority and re-
sent to the President for his assent under the proviso to Art. 111 and the President
gave his assent to the Bill only after the Govt announced the appointment of a
Committee to consider the issues raised by the President.
(1) There shall be freedom of speech in Parliament though regulated by provisions
of this Constitution and to the rules and procedure of Parliament
(2) No member of Parliament shall be liable to any proceedings (civil, criminal or
otherwise) in any court in respect of anything said or any vote given by him in
Parliament or any committee
(3) No person shall be so liable in respect of the publication of any report or
proceedings, if published by or under the authority of either House of Parliament.
(4) Powers, privileges and immunities of members of each House of Parliament or
its committees, may be defined by Parliament by law from time to time
(5) The above privileges shall also apply to persons who by virtue of this
Constitution have the right to speak in, and otherwise to take part in the
proceedings of a House of Parliament or any committee.
Note: For example President, Vice-President as Chairman, Ministers and Attorney
General for India have right to address the House on some occasions.
A Bill is the draft of a legislative proposal which has to pass through three stages,
popularly known as readings in a House, before it becomes an Act of Parliament.
First Reading: The legislative process starts with the introduction of a Bill in
either House of Parliament-Lok Sabha or Rajya Sabha. A Bill can be introduced
either by a Minister or by a Private Member. In the former case, it is known as a
Government Bill and in the latter case it is called a Private Member's Bill.
After a Bill has been introduced, the Presiding Officer of the House concerned can
refer the Bill to the Standing Committee concerned for examination and make
report thereon. If a Bill is referred to the Standing Committee, the Committee shall
consider the general principles and clauses of the Bill referred to them and make
report thereon.
Second Reading: It consists of consideration of the Bill which is in two stages:
The first stage consists of general discussion on the Bill as a whole when the
principle underlying the Bill is discussed. At this stage, it is open to the House to
refer the Bill to a Select Committee of the House or a Joint Committee of the two
Houses or to circulate it for the purpose of eliciting opinion.
The second stage ding consists of clause-by-clause consideration of the Bill as
introduced or as reported by Select/ Joint Committee.
Third Reading: At this stage, the debate is confined to arguments either in support
or rejection of the Bill without referring to the details thereof further than that are
absolutely necessary.
CONSIDERATION OF THE BILL AT A JOINT SITTING
• If a Bill passed by one House is rejected by the other House, or,
• the Houses have finally disagreed as to the amendments to be made in the Bill,
or
• more than six months elapse from the date of the receipt of the Bill by the other
House without the Bill being passed by it,
The President may call a joint sitting of the two Houses to resolve the deadlock.
President may make rules for joint sitting after consulting Presiding officers of both
House of Parliament.
If, at the joint sitting of the Houses, the Bill is passed by a majority of the total
number of Members of both the Houses present and voting, with the amendments,
if any, accepted by them, the Bill is deemed to have been passed by both the
Houses.
There cannot be a joint sitting of both Houses on a Constitution Amendment Bill.
The Speaker of the Lok Sabha presides over the joint sitting of the two Houses.
CONSIDERATION OF THE BILL AT A JOINT SITTING
The first joint session of two Houses held on May 6 and 9, 1961 to pass the Dowry
Prohibition Bill regarding certain provisions of which there was disagreement
between two Houses. The then Congress party in majority did not take a stand on
controversial points and hence deadlock took place between two Houses.
As per Article 118 (3) The President, after consultation with the Chairman of the
Council of States and the Speaker of the House of the People, may make rules as to
the procedure with respect to joint sittings of, and communications between, the
two Houses.
The Houses Of Parliament (Joint Sittings And Communications) Rules states:-
5. presiding Officers: During the absence of the Speaker from any joint sifting, the
Deputy Speaker of the House or, if he is also absent, the Deputy Chairman of the
Council or, if he is also absent such other person as may be determined by the
members present at the sifting, shall preside.
In compliance with Art 119(1) Rules Of Procedure And Conduct Of Business In
Lok Sabha and Rajya Sabha have been framed.
For continuation of English language in Parliament under Art 120(2), Official
language Act, 1963 was passed.
ASSENT OF THE PRESIDENT
When a Bill is passed by both Houses, it becomes an Act only after the President
has given assent to it.
The President may give assent or withhold assent to a Bill.
The President may also return the Bill (except a Money Bill) with
recommendations to the Houses for reconsideration, and if the Houses pass the Bill
again with or without amendments the President cannot withhold assent to the Bill.
The President, however, is bound to give assent to a Constitution Amendment Bill
passed by the Houses of Parliament by the requisite special majority and, where
necessary, ratified by the States.
President Abdul J. Kalam returned the Parliament (Prevention of Disqualification)
Amendment Bill, 2006 under Article 111 raising various points and requesting that
Bill be reconsidered. The bill was passed again in Parliament by majority and re-
sent to the President for his assent under the proviso to Art. 111 and the President
gave his assent to the Bill.
MONEY BILLS [Art. 110]
A Bill shall be deemed to be a Money Bill if it contains provisions, namely:-
(a) the imposition, abolition, remission, alteration or regulation of any tax;
(b) the regulation of the borrowing of money by the Government of India;
(c) the receipt, appropriation or expenditure of moneys out of the Consolidated
Fund of India etc. But a bill related to imposition of fines or other pecuniary
penalties is not Money Bill.
If any question arises whether a Bill is a Money Bill or not, the decision of the
Speaker of the House of the People thereon shall be final.
FINANCIAL BILLS [Art. 117]
A money Bill making additional provisions with any other matter is called a
Financial Bill. Similarity between A Money Bill and Financial Bill is that they
cannot originate in Rajya Sabha but once a Financial Bill is introduced in Lok
Sabha, it is treated as ordinary Bill.
SPECIAL PROCEDURE FOR MONEY BILL [Art. 109]
(1) A Money Bill can be introduced in Lok Sabha only after recommendation of
President and such Bill shall not be introduced in the Council of States.
(2) After a Money Bill has been passed by the House of the People it shall be
transmitted to the Council of States for its recommendations
(3) The House of the People may thereupon either accept or reject all or any of the
recommendations of the Council of States.
(4) If the House of the People accepts any of the recommendations of the Council
of States, the Money Bill shall be deemed to have been passed by both Houses
(5) If the House of the People does not accept any of the recommendations of the
Council of States, the Money Bill shall be deemed to have been passed by both
Houses
(6) If a Money Bill passed by the House of the People and transmitted to the
Council of States for its recommendations is not returned to the House of the
People within the said period of fourteen days, it shall be deemed to have been
passed by both Houses at the expiration of the said period in the form in which it
was passed by the House of the People.
CONTROL OF PUBLIC FINANCE
There are four principles by which Parliament secures control over Public Finance:
1. The Executive cannot raise money by taxation, borrowing or otherwise, or
spend money, without authority of Parliament
2. The power of raising money by tax or loan and authorizing expenditure
belongs exclusive to Lok Sabha (Popular House) and Rajya Sabha plays only a
subsidiary role in this respect
3. Parliament cannot vote money for any purpose except on demand by Ministers
4. Parliament cannot impose tax except upon the recommendation of the
Executive
5. The President shall cause annual Financial Statement (estimated receipt and
expenditure of Govt of India for that year) to be laid before both House of
Parliament [Art. 112]
6. The Budget is presented by Finance Minister to Lok Sabha and laid before
Rajya Sabha.
7. The expenditure charged on consolidated Fund of India is not submitted for
vote of Parliament
8. Other expenditure is submitted as ‗demand for grants‟ to House of People.
9. Lok Sabha may give assent, reject or reduce the amount specified therein.
CONSOLIDATED FUND OF INDIA
It consists of :
all revenues received by the Government of India,
all loans raised by that Government
all moneys received by that Government in repayment of loans
Similarly Government of a State, shall have the Consolidated Fund of that State.
No moneys out of the Consolidated Fund of India or the Consolidated Fund of a
State shall be appropriated except in accordance with law and for the purposes and
in the manner provided in this Constitution.
APPROPRIATION BILL
After grants are made by House of People, President recommends for appropriation
of such grants. A Bill to appropriate money is introduced in Lok Sabha to meet
grants so made and expenditure charged from Consolidated Fund of India. No
amendment shall be proposed by either House of Parliament to any such Bill.
PUBLIC ACCOUNT
All other public moneys received by Government of India / State shall be credited
to the public account of India or the public account of the State, as the case may be.
In this Part, unless the context otherwise requires,
―the State‘‘ includes
 the Government and Parliament of India and
 the Government and the Legislature of each of the States and
 all local or other authorities within the territory of India or under the control of
the Government of India.
Meaning of other authorities
Initially the definition of State was treated as exhaustive and confined to the
authorities or those which could be read ejusdem generis with the authorities
mentioned in the definition of Article 12 itself. Till about the year 1967 the courts in
India had taken the view that even statutory bodies like Universities, Selection
Committees for admission to government colleges were not ―other authorities‖ for
the purpose of Article 12.
The next stage was reached when the definition of ―State‖ came to be understood
with reference to the remedies available against it. For example, historically, a writ
of mandamus was available for enforcement of statutory duties or duties of a public
nature. Thus a statutory corporation, with regulations framed by such corporation
pursuant to statutory powers was considered a State, and the public duty was
limited to those which were created by statute.
In the year 1967 in the case of Rajasthan SEB v. Mohan Lal AIR 1967 SC 1857,
(a majority judgement of Justice Bhargava), a Constitution Bench of this Court held
that the expression ―other authorities‖ is wide enough to include within it every
authority created by a statute on which powers are conferred to carry out
governmental or quasi-governmental functions and functioning within the
territory of India or under the control of the Government of India.
Justice Shah, in a separate but concurring judgment observed that every
constitutional or statutory authority invested with power but not sharing the
sovereign power of the State are not ―State‖ within the meaning of that article.
The State itself is envisaged under Article 298 as having the right to carry on trade
and business. The State as defined in Article 12 is comprehended to include
bodies created for the purpose of promoting economic interests of the people.
The circumstance that the statutory body is required to carry on some activities of
the nature of trade or commerce does not indicate that the Board must be excluded
from the scope of the word ‗State‘. The Electricity Supply Act , 1948 showed that
the Board had power to give directions, the disobedience of which is punishable as
a criminal offence. The power to issue directions and to enforce compliance is an
important aspect.
In the case of Sukhdev Singh v. Bhagatram AIR 1975 SC 1331. In this case the
Court held that bodies like Oil and Natural Gas Commission, Industrial Finance
Corporation and Life Insurance Corporation which were created by statutes,
because of the nature of their activities do come within the term ―other authorities‖
in Article 12 even though in reality they were really constituted for commercial
purposes. The case was decided on 21st Feb, 1975.
The statutes for consideration are the Oil and Natural Gas Commission Act, 1956;
the Industrial Finance Corporation Act, 1948; and the Life Insurance Corporation
Act, 1956.
A majority of three judges spoke through Chief Justice Ray, while Justice Mathew
ratiocinated differently to reach the same conclusion. Justice Alagiriswamy
struck a dissenting note.
The majority view expressed by A.N. Ray, C.J. indicated that the State would
include a public authority which “is a body which has public or statutory
duties to perform and which performs those duties and carries out its
transactions for the benefit of the public and not for private profit.
The Court scrutinised the history of the formation of the three Corporations, the
financial support given by the Central Government, the utilization of the finances
so provided, the nature of service rendered and noted that despite the fact that each
of the Corporations ran on profits earned by it nevertheless the structure of each of
the Corporations showed that the three Corporations represented the ―voice and
hands‖ of the Central Government. The Court came to the conclusion that
although the employees of the three Corporations were not servants of the
Union or the State, “these statutory bodies are „authorities‟ within the meaning
of Article 12 of the Constitution”.
Justice Mathew, in his concurring judgment propounded a view that:
Part IV of the Constitution gives a picture of the services which the state is
expected to undertake and render for the welfare of the people. Article
298 provider, that the executive power of the Union and State extends to the
carrying on of any business or trade. A state is an abstract entity. It can only act
through the instrumentality or agency of natural or juridical persons. Therefore,
there is nothing strange in the notion of the state acting through a corporation and
making it an agency or instrumentality of the State.
For identifying such an agency or instrumentality he propounded four indicia:
(1) ―A finding of the State financial support plus an unusual degree of control over
the management and policies might lead one to characterize an operation as State
action.‖
(2) ―Another factor which might be considered is whether the operation is an
important public function.‖
(3) ―The combination of State aid and the furnishing of an important public service
may result in a conclusion that the operation should be classified as a State agency.
If a given function is of such public importance and so closely related to
governmental functions as to be classified as a governmental agency, then even the
presence or absence of State financial aid might be irrelevant in making a finding of
State action. If the function does not fall within such a description, then mere
addition of State money would not influence the conclusion.‖
(4) ―The ultimate question which is relevant for our purpose is whether such a
corporation is an agency or instrumentality of the Government for carrying on a
business for the benefit of the public. In other words, the question is, for whose
benefit was the corporation carrying on the business?‖
Because of the change in the socio-economic policies of the Government this Court
considered it necessary by judicial interpretation to give a wider meaning to the
term ―other authorities‖ in Article 12 so as to include such bodies which were
created by an Act of legislature to be included in the said term ―other authorities‖.
This judicial expansion of the term ―other authorities‖ came about primarily with a
view to prevent the Government from bypassing its constitutional obligations by
creating companies, corporations, etc. to perform its duties.
The rationale for the approach was the one adopted by Justicer Mathew:
―In the early days, when the Government had limited functions, it could operate
effectively through natural persons constituting its civil service and they were
found adequate to discharge governmental functions, which were of traditional
vintage. But as the tasks of the Government multiplied with the advent of the
welfare State, it began to be increasingly felt that the framework of civil service
was not sufficient to handle the new tasks which were often of specialised and
highly technical character. The inadequacy of the civil service to deal with these
new problems came to be realised and it became necessary to forge a new
instrumentality or administrative device for handling these new problems. It was in
these circumstances and with a view to supplying this administrative need that the
public corporation came into being as the third arm of the Government.”
In case of Sabhajit Tewary v. Union of India [AIR 1975 SC 1329] which was
delivered by the very same Constitution Bench which delivered the judgment in
Sukhdev Singh on the very same day, rejected the contention of the petitioner
therein that the Council for Scientific and Industrial Research, the respondent body
which was only registered under the Societies Registration Act, would come under
the term ―other authorities‖ in Article 12.
Subsequent to the above judgments of the Constitution Bench a three-Judge Bench
of this Court in the case of Ramana Dayaram Shetty v. International Airport
Authority of India AIR 1979 SC 1628 placing reliance on the judgment of this
Court in Sukhdev Singh held that the International Airport Authority which was an
authority created by the International Airport Authority Act, 1971 was an
instrumentality of the State, hence, came within the term ―other authorities‖ in
Article 12. This case was decided on 4th May, 1975.
According to Airport Authority case ―If a statutory corporation, body or other
authority is an instrumentality or agency of the government, it would be an
“authority” and therefore „State‟ within the meaning of that expression in
Article 12.‖
Justice Bhagwati propounded:
―…So far as India is concerned, the genesis of the emergence of corporations as
instrumentalities or agencies of government is to be found in the Government of
India Resolution on Industrial Policy dated April 6, 1948 where it was stated inter
alia that ―management of State enterprise will as a rule be through the medium of
public corporation under the statutory control of the Central Government who will
assume such powers as may be necessary to ensure this‖. It was in pursuance of the
policy envisaged in this and subsequent resolutions on industrial policy that
corporations were created by government for carrying out other public functions.
Ordinarily these functions could have been carried out by government
departmentally. The corporations acting as instrumentality or agency of
government would obviously be subject to the same limitations in the field of
constitutional and administrative law as government itself, though in the eye of
the law, they would be distinct and independent legal entities. If government
acting through its officers is subject to certain constitutional and public law
limitations, it must follow a fortiori that government acting through the
instrumentality or agency of corporations should equally be subject to the same
limitations.
How to determine whether a corporation is acting as instrumentality or agency of
Government?
A corporation may be created in one of two ways. It may be either established by
statute or incorporated under a law such as the Companies Act 1956 or the Societies
Registration Act 1860.
Where a Corporation is wholly controlled by Government not only in its policy
making but also in carrying out the functions entrusted to it by the law establishing
it or by the Charter of its incorporation, there can be no doubt that it would be an
instrumentality or agency of Government.
But ordinarily where a corporation is established by statute, it is autonomous in its
working, subject only to a provision, often times made, that it shall be bound by
any directions that may be issued from time to time by Government in respect of
policy matter.
So also a corporation incorporated under law is managed by a board of directors or
committee of management in accordance with the provisions of the statute under
which it is incorporated. When does such a corporation become an instrumentality
or agency of Govt.? The four way tests as laid down are as follows.
Is the holding of the entire share capital of the Corporation by Government enough
or is it necessary that in addition, there should be a certain amount of direct control
exercised by Government and, if so, what should be the nature of such control?
Should the functions which the corporation is charged to carry out possess any
particular characteristic or feature, or is the nature or the functions immaterial?
Now, one thing is clear that if the entire share capital of the corporation is held by
Government, it would go a long way towards indicating that the corporation is an
instrumentality or agency of Government.
But, as is quite often the case, a corporation established by statute may have no
shares or shareholders, in which case it would be a relevant factor to consider
whether the administration is in the hands of a board of directors appointed by
Government, though this consideration also may not be determinative, because
even while the directors are appointed by Government, they may be completely free
from governmental control in the discharge of their functions.
It is not possible to formulate an all inclusive or exhaustive test which would
adequately answer this question 'there is no cut and dried formula, which would
provide the correct division of corporations into those which are instrumentalities
or agencies of Government and those which are not.
In Ajay Hasia v. Khalid Mujib Sehravardi, AIR Nov 1981 SC 212, a bench of 5
judges ,the Supreme Court laid down the following guidelines authored by J.
Bhagwati, to adjudge whether a body is instrumentality of government or not:
(1) One thing is clear that if the entire share capital of the corporation is held by
Government, it would go a long way towards indicating that the corporation is an
instrumentality or agency of Government.
(2)Where the financial assistance of the State is so much as to meet almost entire
expenditure of the corporation, it would afford some indication of the corporation
being impregnated with Governmental character.
(3) It may also be a relevant factor whether the corporation enjoys monopoly status
which is State conferred or State protected.
(4) Existence of deep and pervasive State control may afford an indication that the
corporation is a State agency or instrumentality.
(5) If the functions of the corporation are of public importance and closely related
to Governmental functions, it would be a relevant factor in classifying the
corporation as an instrumentality or agency of Government.
(6) Specifically, if a department of Government is transferred to a corporation, it
would be a strong factor supportive of this inference of the corporation being an
instrumentality or agency of Government.‖
In Som Prakash v. Union of India, AIR 1981 SC 212, the Hon‘ble Supreme Court
emphasized that true test for purpose whether a body was an „authority‟ is not
whether it was formed by a statute, or under a statute, but it was functional.
The tests propounded by Mathew, J. in Sukhdev Singh were elaborated in Ramana
and were reformulated two years later by a Constitution Bench in Ajay Hasia v.
Khalid Mujib Sehravardi. What may have been technically characterised as obiter
dicta in Sukhdev Singh and Ramana (since in both cases the ―authority‖ in fact
involved was a statutory corporation), formed the ratio decidendi of Ajay Hasia.
The picture that ultimately emerges is that the tests formulated in Ajay Hasia are
not a rigid set of principles so that if a body falls within any one of them it must,
ex hypothesi, be considered to be a State within the meaning of Article 12. The
question in each case would be - whether in the light of the cumulative facts as
established, the body is financially, functionally and administratively
dominated by or under the control of the Government. Such control must be
particular to the body in question and must be pervasive.
If this is found then the body is a State within Article 12. On the other hand, when
the control is merely regulatory whether under statute or otherwise, it would
not serve to make the body a State.
The above conflict in the judgments of Sabhajit Tewary and Ajay Hasia of two
coordinate Benches was noticed by this Court in the case of Pradeep Kumar
Biswas v. Indian Institute of Chemical Biology (2002) 5 SCC 11 and larger
Bench of 7 judges of this Court after discussing the various case-laws laid down the
following parameters for gauging whether a particular body could be termed as
State for the purpose of Article 12:
―The picture that ultimately emerges is that the tests formulated in Ajay Hasia are
not a rigid set of principles so that if a body falls within any one of them it must, ex
hypothesi, be considered to be a State within the meaning of Article 12. The
question in each case would be - whether in the light of the cumulative facts as
established, the body is financially, functionally and administratively dominated by
or under the control of the Government. Such control must be particular to the body
in question and must be pervasive. If this is found then the body is a State within
Article 12. On the other hand, when the control is merely regulatory whether under
statute or otherwise, it would not serve to make the body a State.‖
Overruling Sabhajit Tewari, CSIR was held to be well within the range of Article
12.
Article 13 of the Indian constitution which presents itself in four parts, makes the
concept of fundamental rights more powerful and gives it a real effect.
Article 13. Laws inconsistent with or in derogation of the fundamental rights
(1) All laws in force in the territory of India immediately before the commencement
of this Constitution, in so far as they are inconsistent with the provisions of this
Part, shall, to the extent of such inconsistency, be void
(2) The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall, to the
extent of the contravention, be void
(3) In this article, unless the context otherwise requires law includes any Ordinance,
order, bye law, rule, regulation, notification, custom or usages having in the
territory of India the force of law; laws in force includes laws passed or made by
Legislature or other competent authority in the territory of India before the
commencement of this Constitution and not previously repealed, notwithstanding
that any such law or any part thereof may not be then in operation either at all or in
particular areas
(4) Nothing in this article shall apply to any amendment of this Constitution made
under Article 368
No Retrospective Effect
Article 13(1) of the Constitution relating to the fundamental Rights have no
retrospective effect. All inconsistent existing laws, therefore, become void only
from the commencement of the Constitution. Acts done before the commencement
of the Constitution in pursuance or in contravention of the provisions of any law,
which after the commencement of the Constitution become void because of the
inconsistency with the fundamental rights cannot be challenged in any court of law.
The inconsistent law is not wiped out so far as the past acts are concerned.
In Keshavan Madhava Menon v. State of Bombay 1951 SCR 228, a person was
being prosecuted under a law before the Constitution came into force. After the
Constitution came into force, the law i.e. Section 18 of Press (Emergency Powers)
Act 1931 became void under Art 19(1)(a).
It was contended that Art. 13(1) could not apply to him as the offence had been
committed before the enforcement of the Constitution and, therefore, the
proceedings against him should not be continued.
The Supreme Court said that the article did not have the effect of rendering the
laws, which existed on the date of the commencement of the Constitution, void ab
initio for all purposes if they were inconsistent with the fundamental rights.
B. Doctrine of Eclipse
The Doctrine of eclipse was enunciated in Bhikaji Narain Dhakras v. State of
Madhya Pradesh, 1955 AIR 781.
Motor Vehicles (Amendment) Act, 1947 authorised the state government to exclude
all private motor transport operators from the field of transport business. Parts of
the law became void on the commencement of the Constitution, as it infringed the
provisions of article 19(1)(g) and could not be justified.
Article 19(1) in The Constitution Of India 1949- (1) All citizens shall have the right
(g) to practise any profession, or to carry on any occupation, trade or business
In 1951, clause (6) of article 19 was amended as allow State to monopolise trade
(6) Nothing in sub clause (g) shall affect the operation of any existing law in so far
as it relates to, or prevent the State from making any law relating to
(ii) the carrying on by the State, or by a corporation owned or controlled by the
State, of any trade, business, industry or service, whether to the exclusion, complete
or partial, of citizens or otherwise
SC removed the constitutional impediment and the impugned act ceased to be
unconstitutional.
Supreme Court envisages that a pre-Constitution law inconsistent with a
Fundament Right was not wiped out altogether from the statute book after the
commencement of the Constitution as it continued to exist in respect of rights and
liabilities which had accrued before the date of the Constitution.
Therefore, the law in question will be regarded as having been ‗eclipsed‘ for the
time being by the relevant Fundamental Right. It was in a dormant or moribund
condition for the time being. Such a law was not dead for all purposes.
According to the clauses of Article 13, a law is void only ―to the extent of the
inconsistency or contravention‖ with the relevant Fundamental Right. The above
provision means that an Act may not be void as a whole; only a part of it may be
void and if that part is severable from the rest which is valid, then the rest may
continue to stand and remain operative. In determining whether the valid parts of a
statute are severable from the invalid parts, the intention of the legislature is the
determining factor.
If, however, it is not possible to separate the valid from the invalid portion, then the
whole of the statute will have to go due to the reason that the part that is valid is
bound up with the part that is invalid that the valid part cannot survive
independently.
In RMDC v. Union of India, 1957 AIR 628, the Prize Competition Act which was
broad enough to include competitions of a gambling nature as well as those
involving skills. Under Art. 19(1)(g), Parliament could restrict prize competitions
only of a gambling nature but not those involving skills. The Supreme Court let
some parts of the act intact because Parliament would have still enacted the law to
regulate competitions of gambling nature. Where the provisions of the act are so
mixed together i.e the invalid portion and the valid portion such that it would not
possible to separate them, then the act as whole would deemed to be void.
Art 13(2) provides that the state is prohibited from making any law which takes
away or abridges any of the rights conferred by Part III and any law made in
contravention of this clause shall, to the extent of the contravention, be void .
State of Gujarat v. Shri Ambica Mills
Issue: Whether a law, which takes away or abridges the fundamental right of
citizens under Article 19 (1) (f) would be void ?
The doctrine of eclipse should apply to laws falling under Clause (2) of Article 13
for the following reasons:
• This is due to the fact that the law was void only to the extent of inconsistency
with the fundamental rights conferred under article 19.
• A post-Constitution law offending article 19 remained operative as against non-
citizens.
• It was held that if a law takes away or abridges the fundamental right of one class
of persons or of minorities or denominations, it could not be void as against others
who have no such fundamental right.
• A void statute could be revived by constitutional amendment. Sometimes, courts
also apply their decision prospectively i.e., though they found a law against the
fundamental rights, they invalidate it for the future.
Article 14 of the Indian Constitution clearly states that the state/country shall not
deny to any person equality before the law or the equal protection of the laws
within the territory of India.
This law is applicable to all citizens and foreigners. To be more precise; the word
‗person‘ includes; companies, statutory corporations, registered societies or any
other type of legal person.
Equality before Law: This term is taken from the constitution of England which
means equal treatment for all persons before the court. That is, the law will be
blind, it will not see who is standing in the dock; rich or poor. There shall not be
any privilege for any particular person. It means, everyone will get the same
punishment for the same crime. No person shall be above the law. This is a
negative concept.
Equal protection of Laws: Its provisions have been taken from the Constitution of
America. All persons should be protected equally without any discrimination. There
shall be similar application of the same laws to all persons who are similarly
situated and equal treatment under equal circumstances, both in the privileges
conferred and liabilities imposed by the laws. Equals shall be treated equally and
unequal shall not be treated equally. This is a positive concept.
73. Extent of executive power of the Union-
(1) Subject to the provisions of this Constitution, the executive power of the Union
shall extend-
(a) to the matters with respect to which Parliament has power to make laws; and
(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the
Government of India by virtue of any treaty or agreement
Provided that the executive power referred to in sub-clause (a) shall not, save as
expressly provided in this Constitution or in any law made by Parliament, extend in
any State to matters with respect to which the Legislature of the State has also
power to make laws.
(2) Until otherwise provided by Parliament, a State and any officer or authority of a
State may, notwithstanding anything in this article, continue to exercise in matters
with respect to which Parliament has power to make laws for that State such
executive power or functions as the State or officer or authority thereof could
exercise immediately before the commencement of this Constitution.
There are two limitations on the executive power of Union:-
(i) Constitutional limitations
(ii) A law if made by the Parliament
Art. 162 Extent of executive power of State-
Subject to the provisions of this Constitution, the executive power of a State shall
extend to the matters with respect to which the Legislature of the State has power to
make laws.
Provided that in any matter with respect to which the Legislature of a State and
Parliament have power to make laws, the executive power of the State shall be
subject to, and limited by, the executive power expressly conferred by the
Constitution or by any law made by Parliament upon the Union or authorities
thereof.
In relation to the subjects enumerated in the Concurrent List, the executive power
of the State is subject to the executive power expressly conferred by the
Constitution, or by any law made by Parliament, upon the Union or its authorities.
Thus where Parliament by law confers upon the Union authorities the duty of
executing a law on a subject, shall, to the extent powers are exercisable by the
Union authorities, be deemed to be abrogated. Similarly, where the legislative
power of the State is subject to the legislative power of the Union, as far example,
the power of the State Legislature in Entry 23 of List II is subject to the power of
Parliament in Entry 54 in List I.
163. Council of Ministers to aid and advise Governor
(1) There shall be a council of Ministers with the chief Minister at the head to aid
and advise the Governor in the exercise of his functions, except in so far as he is by
or under this constitution required to exercise his functions or any of them in his
discretion
(2) If any question arises whether any matter is or is not a matter as respects which
the Governor is by or under this Constitution required to act in his discretion, the
decision of the Governor in his discretion shall be final, and the validity of anything
done by the Governor shall not be called in question on the ground that he ought or
ought not to have acted in his discretion
(3) The question whether any, and if so what, advice was tendered by Ministers to
the Governor shall not be inquired into in any court
Implied discretionary powers
Governor has implied discretionary powers when he is acting as the representative
of the President and not independently in following cases:
(i) Second proviso to Article 200 under which the Governor may reserve a Bill for
consideration of the President. Second proviso is:
Provided further that the Governor shall not assent to, but shall reserve for the
consideration of the President, any Bill which in the opinion of the Governor
would, if it became law, so derogate from the powers of the High Court as to
endanger the position which that Court is by this Constitution designed to fill
(ii) Article 356 (1) under which he may report to the President that the Government
of the State cannot be run in accordance with the Constitution.
Express discretionary powers
State Governor is required to exercise his functions in his discretion is para 9(2) of
the Sixth Schedule to the Constitution regarding the administration of tribal areas in
Assam. The only other provision authorising the Governor to act independently of
his Council of Ministers is Article 239(2), i.e. when he is appointed by the President
to be the administrator of an adjoining Union Territory. The Governor of Nagaland
is given discretion in respect of some matters under Article 371-A(1)(b), (d), 2(b)
and (f).
72. Power of President to grant pardons, etc, and to suspend, remit or
commute sentences in certain cases
(1) The President shall have the power to grant pardons, reprieves, respites or
remissions of punishment or to suspend, remit or commute the sentence of any
person convicted of any offence
(a) in all cases where the punishment or sentence is by a court Martial;
(b) in all cases where the punishment or sentence is for an offence against any law
relating to a matter to which the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of death
(3) Noting in sub clause (a) of Clause ( 1 ) shall affect the power to suspend, remit
or commute a sentence of death exercisable by the Governor of a State under any
law for the time being in force
161. Power of Governor to grant pardons, etc, and to suspend, remit or
commute sentences in certain cases:
The Governor of a State shall have the power to grant pardons, reprieves, respites
or remissions of punishment or to suspend, remit or commute the sentence of any
person convicted of any offence against any law relating to a matter to which the
executive power of the State extends.
Jurisprudence of Granting Pardon:-
Pardoning power to be exercised as an act of grace and humanity in proper cases,
without such a power of clemency to be exercised by some department or
functionary of government, a country would be most imperfect and deficient in its
political morality and in that attribute of deity whose judgments are always
tampered with mercy. The pardoning power is founded on consideration of public
good and is to be exercised on the ground of public welfare, which is the legitimate
object of all punishments, will be as well promoted by a suspension as by an
execution of the sentences.
Purpose of Granting Pardon :-
Pardon may substantially help in saving an innocent person from being punished
due to miscarriage of justice or in cases of doubtful conviction. The hope of being
pardoned itself serves as an incentive for the convict to behave himself in the prison
institution and thus, helps considerably in solving the issue of prison discipline. It is
always preferable to grant liberty to a guilty offender rather than sentencing an
innocent person. The object of pardoning power is to correct possible judicial
errors, for no human system of judicial administration can be free from
imperfections.
In Maru Ram v Union of India, AIR 1980, Krishna Iyer, J explained that
notwithstanding section 433-A President and the Governor continue to exercise the
power of commutation and release under Article 72 and 161 respectively. Power
under Art 72 and 161 is absolute and cannot be fettered by any statutory provisions
such as section 432 or 433A or CrPC or prison rules. However, this power must be
exercised by the President or the Governor in accordance with the aid and advice of
their Council of Ministers, and it must be informed by the finer canons of
constitutionalism spelt out in R.D. Shetty and V. Punnam Thomas cases, that is,
anathematise, arbitrariness, and obey standards and guidelines intelligible and
integrated with the manifest purpose of power. This may be done by making rules
of remission which may be effective guidelines of a recommendatory nature.
In Kehar Singh v Union of India, AIR 1989 SC 653, it was reiterated that the
scope of Art 72 is judicially determinable and President is entitled to go into merits
of the case notwithstanding that is has been judicially concluded by the
consideration given to it by this Court. It was also held that it may not be possible
to lay down any precise, clearly defined and sufficiently channelised guidelines,
because power under Art 72 is of widest amplitude and cab contemplate myriad
kinds and categories of cases with facts and situation varying from case to case, in
which merits and reasons of State may be assisted by prevailing occasion.
Facts: Shri Doodh Nath, an M.L.A. of the U.P. Assembly, was found guilty of
murdering one Joginder Singh. He was convicted and sentenced to imprisonment
for life. His appeal to the High Court and Special Leave petition to this Court did
not give any help to extricate himself from the penal clutches of the offence.
The Governor had, on an earlier occasion (on 7.6.1990) dismissed a clemancy
petition filed by shri Doodh Nath. He presented a second petition for the same
purpose within a period of about five months, that too on almost the same grounds
while he was out on parole without mentioning in his second petition for pardon
that an earlier petition for the same purpose was rejected by the Governor. The
police officials whose report was unfavourable to Doodh Nath, forwarded another
report containing recommendation for remitting the sentence on ―humanitarian
grounds‖ that he does not have any adult member in the family, though his wife
was a sitting member of Legislative Assembly. Five criminal cases against Doodh
Nath were still pending at the time of grant of remission and that Governor was not
apprised of that fact. On 4.1.1991, the widow of victim made a representation to
the Governor objecting the clemency petition but on 9.2.1991, the Governor of UP
passed the impugned order under Article 161 of the Constitution and granted
remission of the remaining long period of his life sentence.
A Constitution Bench of this Court has considered the scope of judicial review of
exercise of powers under Articles 72 and 161 of the Constitution of India in Kehar
Singh & Anr. v. Union of India and another (1989) 1 SSC 204. "All power
belongs to the people and it is entrusted by them to specified institutions and
functionaries with the intention of working out, maintaining and operating a
constitutional order."It has been observed that all public power, including
constitutional power, shall never be exercisable arbitrarily or mala fide, and
ordinarily guidelines for fair and equal execution are guarantors of valid play of
power". The bench stressed the point that the power being of the greatest moment,
cannot be a law unto itself but it must be informed by the finer canons of
constitutionalism.
In the present case, when the Governor was not posted with material facts such as
those indicated above , the Governor was apparently deprived of the opportunity to
exercise the powers in a fair and just manner, conversely, the order now impugned
fringes on arbitrariness. Therefore, the impugned order is quashed to enable the
Governor of U.P. to pass a fresh order in the petition filed by Doodh Nath for
remission of the sentence in the light of the observations made above.
In the early case of K.M. Nanavati v State of Bombay, Governor granted reprieve
under Article 161 which was held unconstitutional as it was in contrast with the
Supreme Court rulings under Article 145. Power to suspend a sentence by the
Governor under Art 161 is subject to rules made by the Supreme Court with respect
to cases which are pending before it in appeal.
In a landmark judgment Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors, 2006 8
SCC 161 it was held by the Supreme Court that it is a well-set principle that a
limited judicial review of exercise of clemency powers is available to the Supreme
Court and High Courts. Granting of clemency by the President or Governor can be
challenged on the following grounds:
 The order has been passed without application of mind.
 The order is mala fide.
 The order has been passed on extraneous or wholly irrelevant considerations.
 Relevant material has been kept out of consideration.
 The order suffers from arbitrariness.
Justice Prasayat emphasised that for effective exercise of judicial review reasons
for the exercise of power under these articles must also be provided. Besides, he
held that pardon obtained on the basis of manifest mistake or fraud can also be
rescinded or cancelled.
In the early case of K.M. Nanavati v State of Bombay, Governor granted reprieve
under Article 161 which was held unconstitutional as it was in contrast with the
Supreme Court rulings under Article 145. Power to suspend a sentence by the
Governor under Art 161 is subject to rules made by the Supreme Court with respect
to cases which are pending before it in appeal.
In a landmark judgment Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors, 2006 8
SCC 161 it was held by the Supreme Court that it is a well-set principle that a
limited judicial review of exercise of clemency powers is available to the Supreme
Court and High Courts. Granting of clemency by the President or Governor can be
challenged on the following grounds:
 The order has been passed without application of mind.
 The order is mala fide.
 The order has been passed on extraneous or wholly irrelevant considerations.
 Relevant material has been kept out of consideration.
 The order suffers from arbitrariness.
Justice Prasayat emphasised that for effective exercise of judicial review reasons
for the exercise of power under these articles must also be provided. Besides, he
held that pardon obtained on the basis of manifest mistake or fraud can also be
rescinded or cancelled.
In the early case of K.M. Nanavati v State of Bombay, Governor granted reprieve
under Article 161 which was held unconstitutional as it was in contrast with the
Supreme Court rulings under Article 145. Power to suspend a sentence by the
Governor under Art 161 is subject to rules made by the Supreme Court with respect
to cases which are pending before it in appeal.
In a landmark judgment Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors, 2006 8
SCC 161 it was held by the Supreme Court that it is a well-set principle that a
limited judicial review of exercise of clemency powers is available to the Supreme
Court and High Courts. Granting of clemency by the President or Governor can be
challenged on the following grounds:
 The order has been passed without application of mind.
 The order is mala fide.
 The order has been passed on extraneous or wholly irrelevant considerations.
 Relevant material has been kept out of consideration.
 The order suffers from arbitrariness.
Justice Prasayat emphasised that for effective exercise of judicial review reasons
for the exercise of power under these articles must also be provided. Besides, he
held that pardon obtained on the basis of manifest mistake or fraud can also be
rescinded or cancelled.
Whether imprisonment for life in terms of Section 53 read with Section 45 of
the Penal Code meant imprisonment for rest of the life of the prisoner or a
convict undergoing life imprisonment has a right to claim remission and
whether as per the principles enunciated in paras 91 to 93 of Swamy
Shraddananda, a special category of sentence may be made for the very few
cases where the death penalty might be substituted by the punishment of
imprisonment for life or imprisonment for a term in excess of fourteen years
and to put that category beyond application of remission?
The Supreme Court, for the first issue, has hold the view that imprisonment for life
in terms of Section 53 read with Section 45 of the Penal Code only means
imprisonment for rest of the life of the prisoner subject, however, to the right to
claim remission, etc. as provided under Articles 72 and 161 of the Constitution to
be exercisable by the President and the Governor of the State and also as provided
under Section 432 of the Code of Criminal Procedure. The Court further hold the
view that that a special category of sentence is well founded. The Court overruled
the case of Sangeet and Anr. v. State of Haryana [2013 (2) SCC 452] wherein it
was held that the deprival of remission power of the Appropriate Government by
awarding sentences of 20 or 25 years or without any remission as not permissible is
not in consonance with the law.
Whether the “Appropriate Government” is permitted to exercise the power of
remission under Section 432/433 of the Code after the parallel power has been
exercised by the President under Article 72 or the Governor under Article 161
or by this Court in its Constitutional power under Article 32 as in this case?
The Court, for the second issue, has held that there is every scope and ambit for the
Appropriate Government to consider and grant remission under Sections 432 and
433 of the Code of Criminal Procedure even if such consideration was earlier made
and exercised under Article 72 by the President and under Article 161 by the
Governor. As far as the implication of Article 32 of the Constitution by this Court is
concerned, it has already stated that the power under Sections 432 and 433 is to be
exercised by the Appropriate Government statutorily, it is not for this Court to
exercise the said power and it is always left to be decided by the Appropriate
Government, even if someone approaches this Court under Article 32 of the
Constitution.
Whether Section 432(7) of the Code clearly gives primacy to the Executive
Power of the Union and excludes the Executive Power of the State where the
power of the Union is co-extensive?
Whether the Union or the State has primacy over the subject matter enlisted in
List III of the Seventh Schedule to the Constitution of India for exercise of
power of remission?
Whether there can be two Appropriate Governments in a given case under
Section 432(7) of the Code?
The Court, for the third, fourth and fifth issue, has held that the status of
Appropriate Government whether Union Government or the State Government will
depend upon the order of sentence passed by the Criminal Court as has been
stipulated in Section 432(6) and in the event of specific Executive Power conferred
on the Centre under a law made by the Parliament or under the Constitution itself
then in the event of the conviction and sentence covered by the said law of the
Parliament or the provisions of the Constitution even if the Legislature of the State
is also empowered to make a law on the same subject and coextensive, the
Appropriate Government will be the Union Government having regard to the
prescription contained in the proviso to Article 73(1)(a) of the Constitution. The
principle stated in the decision in G.V. Ramanaiah v. The Superintendent of
Central Jail, Rajahmundry & Ors. [AIR 1974 SC 31] should be applied. In other
words, cases which fall within the four corners of Section 432(7) (a) by virtue of
specific Executive Power conferred on the Centre, the same will clothe the Union
Government the primacy with the status of Appropriate Government. Barring cases
falling under Section 432(7) (a), in all other cases where the offender is sentenced
or the sentence order is passed within the territorial jurisdiction of the concerned
State, the State Government would be the Appropriate Government.
Whether suo motu exercise of power of remission under Section 432(1) is
permissible in the scheme of the section, if yes, whether the procedure
prescribed in sub-clause (2) of the same Section is mandatory or not?
Whether the term Consultation stipulated in Section 435(1) of the Code
implies Concurrence?
The Court, for the sixth issue, has held that the suo motu power of remission cannot
be exercised under Section 432(1), that it can only be initiated based on an
application of the persons convicted as provided under Section 432(2) and that
ultimate order of suspension or remission should be guided by the opinion to be
rendered by the Presiding Officer of the concerned Court. Also such a procedure to
be followed under Section 432(2) is mandatory.
The Court, for the final issue, has held that the situations covered by sub-clauses (a)
to (c) of Section 435(1) falling within the jurisdiction of the Central Government it
will assume primacy and consequently the process of ‗‗Consultation‘‘ in reality be
held as the requirement of ―Concurrence‖.
Art 368 - Power of Parliament to amend the Constitution and procedure
There are four kinds of amendments:
(1) Several Articles of the Constitution make provisions of tentative nature and
such amendments may be made by passing a resolution in the Parliament by simple
majority. For example when parliament admits a new State, it requires a change in
Schedule I and IV. For any change in Schedule II will also require same procedure.
SCHEDULE I - List of States and Union Territories
SCHEDULE II - Part A- Provisions as to President and Governors of States
Part C- Provisions as to Speaker (s) and Chairmen
Part D- Provisions as to Judges (Supreme Court and High Court)
Part E- Provisions as to Comptroller and Auditor-General of India
SCHEDULE IV - Allocation of Seats in the Council of States
(2) Second category of amendments of 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. Such majority is special majority.
(3) If any amendment is required to make any change in—
 Election and manner of election of President
 Extent of executive powers of Union or States
 Any change in powers, jurisdiction or functioning of Supreme Court or any
High Court
 Any change in distribution of Legislative powers of Union and States
 The representation of States in Parliament
 The provisions of this article i.e. Art. 368
Special majority and assent of at least half of Legislature of States
The amendment shall require a resolution of Parliament by special majority and
also to be ratified by the Legislatures of not less than one-half of the States by
resolutions before the Bill making provision for such amendment is presented to the
President for assent.
(4) The amendments which affect the basic structure of the constitution, e.g
the 99th Constitution Amendment, National Judicial Appointments Commission
(NJAC) are unconstitutional and void as declared by Supreme Court.
Article 19(1)(f) as originally enacted was that All citizens had the fundamental right
to acquire, hold and dispose of property. Similarly Article 31 originally stated that
No person shall be deprived of his property save by authority of law providing
proper compensation and requiring assent of President.
Article 13 (2) - The State shall not make any law which takes away or abridges the
rights conferred by Part III and any law made in contravention of this clause shall,
to the extent of the contravention, be void.
The conditions laid down in Article 31 were posing problem for the then
Governments to abolish Zamindari and bring agrarian reforms. Therefore, The
Constitution (First Amendment) Act, 1951, introduced two Articles 31A and
31B. 31 A permitted to acquire estate (means land paying revenue) even in a
manner inconsistent with Part III i.e. Fundamental Rights.
Art. 31 B validated all the Acts and regulations to abolish Zaminadari and bring
agrarian reforms retrospectively. It created Ninth schedule in the Constitution and
put around 13 such acts in this schedule. The Article validated all acts and
regulations put in IXth schedule irrespective they were inconsistent with
Fundamental Rights of Part III or any adverse court orders.
In the case of Shankari Prasad Singh v. Union of India AIR 1951 SC 458, the
validity of the First Amendment Act which curtailed Article 31 in order to bring
agrarian reforms was challenged as being violative of Article 13 of the Constitution.
The Supreme Court upheld the validity of the First Amendment on the basis that the
word ―law‖ did not include within its scope a constitutional amendment passed
under Article 368.
Then came The Constitution (Fourth Amendment) Act, 1955 amending clause
(2) in Art 31. This clause stated that if the property of a person is acquired for
public purpose by making a law providing compensation, no question can be raised
in court on the ground of adequacy of compensation. Similarly clause 2A provided
that if property is not acquired or requisitioned in favour of State, then there is no
right to demand compensation from State. Seven more Acts were inserted into IXth
Schedule with total entries increased to 20 now.
The laws made by State Legislatures were still being challenged and struck down
by Supreme Court, The Constitution (Seventeenth Amendment) Act, 1964 by
inserting Art 31 A clause (2) by improving definition of term estate retrospectively
and including forty four acts in the Ninth Schedule to save their validity.
The next significant case raising this issue would be the case of Sajjan Singh v.
State of Rajasthan, AIR 1965 SC 845, when the validity of the Constitution
(Seventeenth Amendment) Act was questioned in front of the apex Court. By this
amendment a number of statutes affecting property rights were placed in the Ninth
Schedule of the Constitution thereby putting them out of judicial review.
The court rejected the argument in the ratio of 3:2. In its majority opinion
(Gajendragadkar C.J., Wanchoo, Dayal JJ) the Court held that the ―pith and
substance‖ of the amendment was to amend the Fundamental Rights and not to
restrict the scope of Article 226 in any way. Reiterating the position in Shankari
Prasad the Court drew a distinction between ordinary legislative power and
constituent power. The majority refuse to acknowledge that Fundamental Rights
were beyond the scope of Article 368.
Justice Hidayatullah observed that, ―I would require stronger reasons than those
given in Shankari Prasad to make me accept the view that Fundamental Rights were
not really fundamental but were intended to be within the powers of amendment in
common with the other parts of the constitution and without concurrence of the
states‖. Similarly Justice Mudholkar expressed reluctance in accepting that the
word ―law‖ in Article 13 excluded within it scope the constitutional amendments.
Every constitution has certain basic features which could not be changed.
In the case of I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643 the
Constitution (Seventeenth Amendment) Act was again challenged. 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.
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).
Simply four proposition laid down in Golak Nath case were
1. The constituent power to amend does not lie with Parliament but Article 368 only
contains the procedure to amend the Constitution
2. A constitutional amendment can be done by legislative power of parliament. An
amending law made under Article 368 would be subject to Art 13(2) like any other
law.
3. The word ‗amend‘ envisaged only minor modifications in the existing provisions
but not any major alterations therein;
4. To amend the Fundamental Rights, a Constituent Assembly ought to be convened
by Parliament.
The basic structure theory was first introduced by Justice Mudholkar in the Sajjan
Singh case (1965) by referring to a 1963 decision of the Supreme Court of Pakistan.
Chief Justice Cornelius of Pakistan had held in Fazulal Quader Chawdry v.
Mohd. Abdul Haque [1963 PLD 486(SC) that the President of Pakistan could not
alter the ―fundamental features‖ of their Constitution.
Doctrine of prospective ruling
The rule of retrospectivity means that when a law is declared invalid, then it is
deemed to be invalid from the date law had come into existence or the date on
which it was enacted. The concept of Prospective Overruling is a deviation from the
principle of retroactive operation of a decision.
The whole purpose is to avoid reopening of settled issues and also prevent
multiplicity of proceedings; in effect, this means that all actions prior to the
declaration do not stand invalidated.
It was in the case of Golaknath v. State of Punjab , that the then Chief Justice
Subba Rao had first invoked the doctrine of prospective overruling. This principle,
borrowed from the American Constitution.
Chief Justice says that the Indian Constitution does not expressly or by necessary
implication speak against the doctrine of prospective over-ruling. Talking about
Articles 32, 141 and 142, he says they are couched in such wide and elastic terms as
to enable this Court to formulate legal doctrines to meet the ends of justice. The only
limitation thereon, he says, is reason, restraint and injustice. These articles are
designedly made comprehensive to enable the Supreme Court to declare law and to
give such directions or pass such orders as are necessary to do complete justice.
Indira Gandhi was a powerful Prime Minister then, having been in the post since
January 24, 1966. Between 1967 and 1971, Prime Minister Indira Gandhi came to
obtain near-absolute control over the government and the Indian National Congress
party, as well as a huge majority in Parliament.
The first was achieved by concentrating the central government's power within the
Prime Minister's Secretariat, rather than the Cabinet, whose elected members she
saw as a threat and distrusted. Within the Congress, Indira ruthlessly
outmanoeuvred her rivals, forcing the party to split in 1969 into the Congress (O)
and her Congress (R). A majority of the All-India Congress Committee and
Congress MPs sided with the prime minister. Indira's party was a different beast
from the Congress of old, a robust institution with traditions of internal democracy.
In the Congress (R), on the other hand, members quickly realised that their progress
within the ranks depended solely on their loyalty to Indira Gandhi and her family,
and ostentatious displays of sycophancy became routine.
Indira's ascent was backed by her charismatic appeal among the masses that include
the July 1969 nationalisation of several major banks and the September 1970
abolition of the privy purse; these were often done suddenly, via ordinance, to the
universal shock of her opponents.
Subsequently, Indira was seen as standing for socialism in economics and pro-poor
and for the development of the nation as a whole.
Article 31 of the Constitution as it stands specifically provides that no law
providing for the compulsory acquisition or requisitioning of property which either
fixes the amount of compensation or specifies the principles on which and the
manner in which the compensation is to be determined and given shall be called in
question in any court on the ground that the compensation is not adequate.
In the Rustom Cavasjee Cooper v. UOI, AIR 1970 SC 564 (also known as Bank
Nationalization case), the Supreme Court has held that the Constitution guarantees
right to compensation, that is, the equivalent in money of the property compulsorily
acquired.
Thus in effect the adequacy of compensation and the relevancy of the principles
laid down by the Legislature for determining the amount of compensation have
virtually become justiciable inasmuch as the Court can go into the question whether
the amount paid to the owner of the property is what may be regarded
reasonably as compensation for loss of property. In the same case, the Court has
also held that a law which seeks to acquire or requisition property for a public
purpose should also satisfy the requirements of article 19 (1) (f).
H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior
and Ors. Vs. Union of India and Anr. AIR 1971 SC 530
On the promulgation of the Indian Independence Act, 1947, the Princely States
merged with the Dominion of India. Special provisions were enacted in the
Constitution of India in 1950 regarding Privy Purses and the rights and privileges of
the erstwhile Rulers. By article 291, the sum exempt from all taxes on income,
guaranteed by the Dominion of India to any Ruler as Privy Purse under any
covenant or agreement was to be charged on and paid out of the Consolidated Fund
of India. In 1961, Petitioner a descendant of the Scindia dynasty of the Marathas,
became the titular Maharaja of Gwalior.
By article 362 the Parliament, the State Legislatures and the executive of the Union
and the States were enjoined to have due regard to the guarantees and assurances.
By Article 366(22) a ―Ruler‖ was defined to mean the prince, chief or other person
by whom covenant and agreements were entered into and who ―for the time being‖
was recognised by the President as the Ruler and included any person who ―for the
time being‖ was recognised by the President as the successor of such Ruler.
Article 363 excluded the jurisdiction of courts in respect of any dispute arising out
of any provision of a treaty, agreement, covenant etc.
On September 2, 1970, a Bill instituted the Constitution (Twenty Fourth
Amendment) Bill 1970, and providing that ―Articles 291 and 362 of the
Constitution and clause (22) of article 366 shall be omitted‖ was passed in the Lok
Sabha but did not obtain 2/3rd majority in the Rajya Sabha.
A few hours thereafter the President of India, signed an instrument withdrawing
recognition of all the Rulers. The petitioners moved this Court under Article 32 of
the Constitution challenging the order of the President ―derecognising‖ them as
unconstitutional, ultra vires and void.
Supreme Court held that President‘s power derecognising rulers, does not flow
from article 366(22) and the bar of article 363 does not apply to such a dispute. The
dispute arises neither from the covenants etc. nor from the provisions of the
Constitution. Therefore, it does not have the protection of article 363.
The obligation to pay the Privy Purse being absolute right. Therefore Privy Purse is
property and any action to deprive the Rulers of their Privy Purses must be an
infringement of articles 19 and 31. The Order of the President ―derecognising‖ the
Rulers is ultra vires and illegal and violates the constitutional provisions.
He was elected to the Lok Sabha at the age of 26 in 1971 from Gwalior and
remained nine times member of the Lok Sabha.
The prime minister was especially adored by the disadvantaged sections such as the
poor, Dalits, women and minorities. As the elections were nearing the Congress
Party felt that the restrictions on them by the judiciary will dwindle their supremacy
in the eyes of the citizens. Further, the restriction on Parliament‘s power to amend
the Constitution will pose hinderance in executing the principle agenda of the
Congress, ‗GarbiHatao‘.
Prior to Golak Nath, the appointments of judges to Supreme Court were made by
the Central government on the recommendation of the Chief Justice. But after
Golak Nath, the government reduced the CJI to mere rubber stamp who now had
just a consultation role and the government became the ultimate decision maker.
The Government formed the Gokhale Committee, headed by then Law Minister H.
R. Gokhale, a lawyer, political leaders and jurists, to appoint judges to the Supreme
Court.
Prior to the elections, Justices Sikhri, Shelat, Hegde, and Grover had pronounced
judgments which were anti-government in Golak Nath, Bank Nationalization case
and Madhav Rao Scindia. But, since these four were the senior-most judges of the
Supreme Court, the government could not do much about them.
In the 1971 general elections, the people rallied behind Indira's populist slogan of
Garibi Hatao! Congress won the elections with 352 seats out of 518
Congress had thus regained their power at the Center. In December 1971, under her
proactive war leadership, India defeated Pakistan that led to the independence of
Bangladesh, Awarded the Bharat Ratna the next month, she was at her greatest
peak. She was viewed as a brilliant military strategist and diplomat.
Justice P Jaganmohan Reddy, who himself was part of the Kesavananda Bharati
bench in his autobiography wrote regarding the committee formed, ―these three
ministers set out to advice the Prime Minister to introduce Constitutional
amendments so as to vest the executive with full powers by overruling Golak
Nath‘s case …..‖
The Government specially appointed judges before the Kesavananda Bharati‘s
hearing began. The government appointed Justice D. G. Palekar, whom Mr.
Gokhale knew very well. Justice H R Khanna was also appointed by the
government. Justice Mathew and Justice Beg were appointed by the government on
the direction of Prime Minister Indira Gandhi. Justice Dwivedi and Justice
Bahuguna were relatives of a minister of Indira Gandhi government. Justice
Dwivedi openly said that he was going to the Supreme Court to overrule Golak
Nath. It was conspicuous that the appointments to Supreme Court were after
foreseeing the possibility to overrule Golak Nath and provide the Parliament with
unlimited power to amend the Constitution.
To get over the decision of the Supreme Court in Golaknath's case The
Constitution (Twenty fourth Amendment) Act, 1971 came in force.
Amendments in Article 13
(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)Another clause was added as clause (3):
"(3) Nothing in article 13 shall apply to any amendment under this article."
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.
Amendments were made to article 368
(i) The article was given a new marginal heading: "Power of Parliament to amend
the Constitution and procedure therefore.―
(ii) A new clause was added to Article 368 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.
The Constitution (Twenty-fifth Amendment) Act, 1971
The word "compensation" was omitted from article 31(2) and replaced by the word
"amount". It is also provided that article 19(1)(f) shall not apply to any law relating
to the acquisition or requisitioning of property for a public purpose.
It also introduced a new article 31C which provides that if any law is passed to give
effect to the Directive Principles contained in clauses (b) and (c) of article 39 and
contains a declaration to that effect, such law shall not be deemed to be void
on the ground that it takes away or abridges any of the rights contained in article
14, 19 or 31 and shall not be questioned on the ground that it does not give effect to
those principles.
The Constitution (Twenty-sixth Amendment) Act, 1971
The concept of rulership, with privy purses and special privileges unrelated to any
current functions and social purposes, is incompatible with an egalitarian social
order. Government have, therefore, decided to terminate the privy purses and
privileges of the Rulers of former Indian States.
Articles 291 and 362 of the Constitution were omitted and new article 363A was
inserted which revoked recognition granted to Rulers of Indian States and abolished
privy purses.
The Constitution (Twenty-ninth Amendment) Act, 1972
The Kerala Land Reforms Act, 1963 (Act 1 of 1964), in the principal land reform
law in the State of Kerala and was included in the Ninth Schedule to the
Constitution. The Supreme Court in its judgments delivered on 26th and 28th April,
1972, upheld the scheme of land reforms but invalidating certain crucial provisions
adversely affected thousands of tenants. It is, therefore, proposed to include the
Kerala Land Reforms (Amendment) Act, 1969 and the Kerala Land Reforms
(Amendment) Act, 1971 in the Ninth Schedule to the Constitution so that they may
have the protection under article 31B.
In the Ninth Schedule to the Constitution, after entry 64 and before the Explanation
the following entries were inserted, namely:-
65. The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969).
66. The Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971.
BASIC STRUCTURE
The Supreme Court recognized Basic Structure concept for the first time in the
historic Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and
Anr. (1973) 4 SCC 225.. In this case validity of the Twenty-fourth, Twenty-fifth
and Twenty-ninth Amendments was challenged.
Seven out of thirteen Judges (Sikri, C.J., Shelat, Hegde, Grover, Jagmohan Reddy,
Khanna and Mukherjee, JJ) held that the power of amendment under Article 368 is
subject to certain implied and inherent limitations, and that in the exercise of
amending power Parliament cannot change the basic structure or framework of the
Constitution. Six of them (excluding Khanna J.) thought that the fundamental rights
enshrined in Part III relate to basic structure of framework of the Constitution and,
therefore are not amendable.
Six judges (Ray, Palekar, Mathew, Beg, Dwivedi and Chandrachud, JJ.) were, by
and large, not prepared to accept any limitation on the plenary power of Parliament
to amend the Constitution.
Khanna, J., however held that the right to property did not form part of the basic
structure.
Ray, J. observed that all provisions of the constitution were essential and no
distinction could be made between essential and non-essential features from the
point of view of amendment unless the makers of the Constitution made it
expressly clear in the Constitution itself.
Sikri, C.J. explained that the concept of basic structure included:
• Supremacy of the Constitution
• Republican and democratic form of government
• Secular character of the Constitution
• Separation of powers between the legislature, executive and the judiciary
• Federal character of the Constitution
According to the summary signed by nine out of thirteen judges in Kesavananda
Bharti the majority in that case overruled Golak Nath and held that Article 368 did
not enable Parliament to alter the basic structure of framework of the Constitution.
The majority also invalidated the second part of Article 31-C introduced by 25th
Amendment which excluded the jurisdiction of the courts to inquire whether a law
protected under that article gave effect to the policy of securing the directive
principles mentioned in that article, viz. the directives in Article 39(b) and (c).
Thus, Kesavananda Bharati bench was composed of 13 judges, namely, CJI S. M.
Sikri, Justices J. M. Shelat, K. S. Hegde, A. N. Grover, A. N. Ray, P Jaganmohan
Reddy, D. G. Palekar, H. R Khanna, K. K. Mathew, H. M. Beg, S. N. Dwivedi, A.
K. Mukherjea and Y. V. Chandrachud. This bench was thus polarised into ‗pro-
government‘ and ‗anti-government‘.
The case went on for 66 days. This historic judgment was given on 24th April 1973.
And, all said and done, Kesavananda Bharati case put a limitation that the basic
structure of the Constitution could not be amended by the Parliament, whatsoever.
On 25th April 1973, CJI Sikri retired. On 26th April, government appointed Justice
A. N Ray as the 14th CJI, superseding the seniority of Justices Shelat, Hegde and
Grover. By this, the true colour and intention of the government were evident. All
the three senior-most judges resigned on 26th April.
The government justified the supersession by quoting Law Commission Report of
1959 which stated, ―It was necessary to appoint a Chief Justice of ability and
experience but also a competent administrator. It is, therefore, necessary to have a
healthy convention that appointment to the office of the Chief Justice rests on
special considerations does not as a matter, of course, go to the senior-most puisne
judge.‖
Due to the war and additional challenges of drought and the 1973 oil crisis, the
economy was in bad shape. In March–April 1974, a student agitation received the
support of Gandhian socialist Jayaprakash Narayan, against the Bihar government.
He called for "total revolution―against government corruption and Gandhi‘s
allegedly inept leadership, asking students, peasants, and labour organisations non-
violently transform Indian society.
A month later, the railway-employees union, the largest union in the country, went
on a nationwide strike. This strike was brutally suppressed by the Indira Gandhi
government, which arrested thousands of employees and drove their families out of
their quarters.
By late 1974, however, Gandhi‘s golden image had tarnished, for, despite her
campaign rhetoric, poverty was hardly abolished in India. Quite the contrary, with
skyrocketing international oil prices and consumer-goods inflation at home, India‘s
unemployed and landless as well as its large fixed-income labouring population
found themselves sinking deeper into starvation‘s grip and impossible debt.
The mass movement gathered momentum throughout the first half of 1975 and
reached its climax that June, when the Congress Party lost a crucial by-election in
Gujarat.
on 12th June, 1975 Justice Jag Mohanlal Sinha of the Allahabad High Court
declared Indira Gandhi's election to the Lok Sabha in 1971 from the constituency of
Rae Bareli as being void on the grounds of electoral malpractice under Section
123(7) of Representation of People Act, 1951. The Court also disqualified her for 6
years to contest elections.
The petition was filed by her opponent in the election, Raj Narain from the Janata
Party who had lost the election by a small margin of votes. Shanti Bhushan fought
the case for Narain. Gandhi was also cross-examined in the High Court which was
the first such instance for an Indian prime minister.
Indira Gandhi challenged the High Court's decision in the Supreme Court. Justice
V. R. Krishna Iyer, on 24 June 1975, upheld the High Court judgement and ordered
all privileges Gandhi received as an MP be stopped, and that she be debarred from
voting. However, she was allowed to continue as Prime Minister.
The next day, Jai Prakash organised a large rally in Delhi. In the face of massive
political opposition, desertion and disorder across the country and the party, the
Government claimed that the strikes and protests had paralysed the government and
hurt the economy of the country greatly. Siddhartha Shankar Ray, the Chief
Minister of West Bengal, proposed to the PM to impose an "internal emergency".
Later that day, Indira Gandhi requested a compliant President Fakhruddin Ali
Ahmed to issue a proclamation of a state of emergency under Article 352 of
the Constitution because of the prevailing "internal disturbance". The Emergency
was in effect from 25 June 1975 until its withdrawal on 21 March 1977. The order
bestowed upon the Prime Minister the authority to rule by decree, allowing
elections to be suspended and civil liberties to be curbed. During this period Indira
Gandhi's political opponents were imprisoned and the press was censored. Several
other human rights violations were reported from the time.
Within three hours, the electricity to all major newspapers was cut and the political-
opposition arrested. The proposal was sent without discussion with the Union
Cabinet, who only learnt of it and ratified it the next morning.
In Nov, 1975 Attorney General Niren De moved the Supreme Court without even
filing a review petition. Incredibly, CJI Ray, as the Master of the Roster, arbitrarily
constituted a 13-judge Bench to review the verdict. After two days of impassioned
arguments, on November 12, 1975, CJI Ray abruptly dissolved the 13-judge Bench.
He had been forced to yield under immense peer pressure, and the institutional
integrity of the Supreme Court was restored.
he next action of the PM was enact Constitution 38th (Amendment) Act, 1975.
Amended on 1st Aug, 1975, President may issue different Proclamations on
different grounds whether or not there is a Proclamation already in existence.
When a Proclamation of Emergency is in operation, the President is empowered
under article 359 of the Constitution to make an order suspending the right to move
any court for the enforcement of such of the rights conferred by Part III as may be
mentioned in that order. It was intended that the powers conferred by this article
should be exercised during an emergency according to needs of the situation. On
the other hand, article 358 renders the provisions of article 19 automatically
inoperative while the Proclamation of Emergency is in operation, and the power to
make any law or to take any executive action is not restricted by the provisions of
that article.
The intention underlying article 359 appears to be that when an order is made under
clause (1) of that article in relation to any of the rights conferred by Part III and
mentioned in the order, the order so made would have for all practical purposes the
same effect in relation to those rights as article 358 has in relation to article 19.
Therefore in article 359 of the Constitution, after clause (1), the clause (1A) shall be
inserted so that the presidential order so made would have for all practical purposes
the same effect in relation to those rights as article 358 has in relation to article 19.
In an election petition before the Allahabad High Court, the appellant was held
guilty of corrupt practice committed under Section 123(7) of the Representation of
the People Act, 1951. Hon‘ble High Court disqualified her for a period of six years
from the date of the order as provided in Section 8(a) of the 1951 Act. While the
appellant filed an appeal before Supreme Court against the decision of High Court,
Art 329A was inserted by the Constitution (Thirty-ninth Amendment) Act. 1975
during the pendency of the appeal.
After the Allahabad High Court declared Indira Gandhi‘s election void on grounds
of corrupt practices, Indira Gandhi made an appeal against the decision. The
Supreme Court was on vacation at that time so she was granted a conditional stay.
Thereafter, emergency was declared due to internal disturbance.
In the meantime, Indira Gandhi passed the 39th constitutional amendment, which
introduced Article 329A to the Constitution of India. Article 392A stated that the
election of the Prime Minister and the Speaker cannot be questioned in any court of
law, it can only be challenged before a committee formed by the Parliament itself.
Thus, barring the Supreme Court from deciding Indira Gandhi‘s case. Therefore, the
constitutional validity of the 39th amendment was challenged.
On 6th August, 1975, a new article 329A was inserted in Constitution, namely:-
(1) 329A.- No election of a person who holds the office of Prime Minister or
speaker at the time of such election or is appointed as Prime Minister after such
election shall be called in question, except before such authority as may be
provided for by or under any law made by Parliament
(2) The validity of any such law and the decision of any authority shall not be
called in question in any court.
(3) Where any person is appointed as Prime Minister or, chosen as Speaker of the if
an election petition is pending, such election petition shall abate, but such election
may be called in question under any such law or before an authority.
(4) No law made by Parliament before the commencement of the Constitution
(Thirty-ninth Amendment) Act, 1975, shall apply. No election shall become void on
basis of such law notwithstanding any order made by any court.
(5) Any appeal pending before the Supreme Court immediately before the
commencement of this amendment shall be disposed of.
(6) The provisions of this article shall have effect notwithstanding anything
contained in this Constitution.
The respondent the appeal on three grounds. First on Art 329A and contentions are :
First, under Article 368 only general principles governing the organs of the State
and the basic principles can be laid down. An amendment of the Constitution does
not contemplate any decision in respect of individual cases. Clause (4) of Article
329A is said to be exercise of a purely judicial power which is not included in the
constituent power conferred by Article 368.
Second, the control over the result of the elections and on the question whether the
election of any person is valid or invalid is vested in the Judiciary under the
provisions of Article 329 and Article 136. The jurisdiction of judicial determination
is taken away, and, therefore, the democratic character of the Constitution is
destroyed.
Third, the amendment destroys and abrogates the principle of equality. It is said that
there is no rational basis for differentiation between persons holding high offices
and other persons elected to Parliament.
Fourth, the rule of law is the basis for democracy and judicial review. The fourth
clause makes the provisions of Part VI of the Representation of the People Act
inapplicable to the election of the Prime Minister and the Speaker.
Fifth, clause (4) destroys not only judicial review but also separation of power. The
order of the High Court declaring the election to be void is declared valid (sie void).
The cancellation of the judgment is denial of political justice which is the basic
structure of the Constitution.
Another feature in the Constitution (Thirty-ninth Amendment) Act is that in the
Ninth Schedule to the Constitution after Entry 86 and before the explanation several
Entries Nos. 87 to 124 inclusive are inserted. The Representation of the People Act,
1951, the Representation of the People (Amendment) Act, 1974 and the Election
Laws (Amendment) Act, 1975 are mentioned in Entry 87.
The second ground respondent contends that the Representation of the People
(Amendment) Act, 1974 and the Election Laws (Amendment) Act, 1975 referred to
as the Amendment Acts, 1974 and 1975 do not enjoy constitutional immunity
because these Acts destroy or damage basic structure or basic features.

The third ground is that the condition of the House which passed the Constitution
(Thirty-ninth Amendment) Act is illegal. It is said that a number of members of
Parliament of the two Houses were detained by executive order after June 26, 1975.
In the words of Mathew J. Article 329A(4) destroyed the basic structure of the
Constitution viz. the resolution of an election dispute by ascertaining the
adjudicative facts and applying the relevant laws. He was of the opinion- ―a healthy
democracy can only function when there is the possibility of free and fair elections,
The impugned amendment destroyed that possibility and therefore violated the basic
structure of the Constitution‖.
Chandrachud J. found that ―The 39th amendment is violative of the principle
of separation of power as it intently transferred a purely judicial function into the
hands of the legislature. Further, he was certain that the said amendment is also
violative of Article 14 as it created inequality for certain members against others‖.
Justice Khanna found that ―The violation of norms of free and fair elections. The
bench also found the said amendment violated the principles of natural justice
i.e. audi altrem partem since it denies the right of fair hearing to the one who is
challenging the election of the members mentioned under the amendment.
Democracy is a basic feature of the Indian Constitution. Parliament does not have
the power to pass a retrospective law validating an invalid election. This exercise is
nothing but an example of despotic use of unrestrained and unfettered power‖.
Ray C.J. found another basic feature violated by the said amendment i.e. rule of law
Kelson‘s pure theory of law is a theory of positive law based on normative order
eliminating all extra legal and non-legal elements from it. He believed that a theory
of law should be uniform. Kelson‘s Theory of pure science of law which is also
known as theory of interpretation. Kelson claimed that his pure theory was
application to all places and at all times. It must be free from ethics, politics,
sociology, history, etc. though he did not deny the value of these branches of
knowledge. He only wanted that law should be clear of them.
The ‗Grundnorm-: Kelson‘s pure of law is based no pyramidical structure of
hierarchy of norms which derive their validity from the basic norm which he
termed as ‗Grundnorm‘. Thus ‗Grundnorm‘ of basic norm determines the content
and gives validity to other norms derived form it. Kelson has no answer to the
question as to wherefrom the ‗Grundnorm‘ or basic norm derives its validity. He
considers it to be a meta-legal question in which jurist need not intrude. He
considers ‗Grundnorm‘ as a fiction rather than a hypothesis. Kelson recognised that
the ‗Grundnorm‘ need not be same in every legal order (State), but it must
necessarily be there. It may be in the form of a written Constitution or will of the
dictator.
Grundnorm
Thus the system of norms proceeds from downwards to upwards and finally it
closes at the Grundnorm at the top. The Grundnrom is taken for granted as a norm
creating organ and the creation of it cannot be demonstrated scientifically nor is it
required to be validated by any other norm.
The legal order is a system of general and individual norms connected with each
other according to the principle that law regulates its own creation. Each norm of
this order is created according to the provisions of another norm and ultimately
according to the provisions of the basic norm constituting the unity of this system,
the legal order.
A norm belongs to a certain legal order, because it is created by an organ of the legal
community constituted by this order.
Creation of law is application of law. The creation of a legal norm is normally an
application of the higher norm, regulating its creation. The application of higher
norm is the creation of a lower norm determined by the higher norm.
For example, a statue or law is valid because it derives its legal authority from the
legislative body; the legislative body in its own derives its authority from a norm i.e.
the Constitution. As to the question from where does the Constitution derives its
validity there is no answer and, therefore, it is the Grundnorm according to
Kelsonite conception of pure theory of law. In this view the basic norm is the result
of social, economic, political and other conditions and it is supposed to be valid by
itself.
A judicial decision is an act by which a general norm, a statute, is applied but at
the same time an individual norm is created binding one or both parties to the
conflict. Legislation is creation of law.
Taking it into account is application of law. The higher norm may determine the
organ and the procedure by which a lower norm and the contents of the lower
norm are created. Every law-creating act must be a law applying act.
When settling a dispute between two parties a court applies a general norm or
statutory or customary law. Simultaneously, the court creates an individual norm
providing that a definite sanction shall be executed against a definite individual.
The individual norm is related to the general norm as the statute is related to the
Constitution.
The judicial function is thus like legislation, both creation and application of
law. The judicial function is ordinarily determined by the general norms both as
to procedure and as to the contents of the norm to be created, whereas
legislation is usually determined by the Constitution only in the former respect.
The general norm which attaches abstractly determined consequences, has to be
applied to concrete cases in order that the sanction determined in abstract may
be ordered and executed in concrete. The two essential elements of judicial
functions are to apply a pre-existing general norm in which a certain
consequence is attached to certain conditions. The existence of the concrete
conditions in connection with the concrete consequence are what may be called
individualization of the general and abstract norm to the individual norm of the
judicial decision.
Constituent power is not the same as ordinary law making power. If any
amendment of Article 105 of the Constitution had to be made, it had to be made
by amendment of the Constitution.
Clause 4 of Article 329-A in the present case in validating the election has
passed a declaratory judgment and not a law. The legislative judgment in Clause
4 is an exercise of judicial power. The constituent power can exercise judicial
power but it has to apply law. The validation of the election is not by applying
legal norms.
Basic structures theory does not apply with regard to ordinary legislation
otherwise there would be two kinds of limitations for legislative measures. One
will pertain to legislative power under Article 245 and 246 and the legislative
entries and the provision in Article 13. and the other would be on grounds of
damage basic structures. This will mean robbing the Legislature of acting within
the framework of the Constitution. The theory of implied limitations on the
power of amendment of the Constitution has been rejected by seven Judges in
Kesavananda Bharati‘.
In addition to this, the Parliament has the powers to restrict the limits on
election expenses along with stating which expenses can fall under the purview
of the same and which cannot. It can likewise choose what is meant by the
office of profit, what comes under corruption and the status of the members. If
there has been a retrospective effect to the legislative amendment, it is accepted
as a normal exercise which is tough to implement but is inevitable. In such
cases, wherein the law has a retrospective effect and if the law was operational
in the past, there can be no discrimination or unfairness on this ground of being
retrospective in nature.
The Supreme Court held that ―candidate‖ in Section 123(7) of The People‘s
Representative (Amendment) Act, 1975, was characterized as a person who files
the nomination papers. It was then held that Indira Gandhi filed for nomination
on 1st February 1971, therefore any help or assistance that she took from the
government officials and the armed forces before this date did not amount to a
corrupt practice.
The Court also held that Yashpal Kapoor had given his resignation letter to the
President on 13th January 1971 and ceased to be a government officer, so the
assistance that he provided to Indira Gandhi after that day i.e. from 1st Feb 1971
was not a corrupt practice.
The Court held that as per Section 77 of the People‘s Representative Act, 1951,
Expenditure incurred by a political party for the purpose of the election of the
candidates of the party is not included in the election expenses of the candidate.
Similarly, participation in the programme of activity organized by a political
party will not be included in the election expenses of the candidate.
Additional District Magistrate (ADM), Jabalpur vs Shivakant Shukla, popularly
known as the Habeas Corpus case, was decided by the Indian Supreme Court on
April 28, 1976, by a bench of five judges, namely, Chief Justice A.N. Ray, and
Justices H.R. Khanna, M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati. Justice
Khanna was the lone dissenter in the case.
The name of the ADM was Kiran Vijay Singh. She appealed against the Madhya
Pradesh high court‘s verdict that was in favour of the detenu, Shivakant Shukla.
That was the lead case. The Supreme Court set aside nine high court judgements
including this, which had ruled in favour of enforcement of fundamental rights
during the Emergency.
The majority judges on the Supreme Court bench in the case concluded as follows:
―In view of the Presidential Order dated 27th June 1975 no person has any locus to
move any writ petition under Article 226 before a High Court for habeas corpus or
any other writ or order or direction to challenge the legality of an order of detention
on the ground that the order is not under or in compliance with the Act or is illegal
or is vitiated by mala fides factual or legal or is based on extraneous
considerations.‖
Emergency of 1975 led to The presidential order declaring that the right of any
person to move any court for any enforcement of the rights conferred by Articles 14,
21 and 22 of the constitution and all proceedings pending in any court for the
enforcement of those rights would remain suspended for the period during which the
proclamation of Emergency was in force.
In ADM Jabalpur too, detenues were detained under Maintenance of Internal
Security Act, 1971. They challenged their detention before various High Courts
through writs of Habeas Corpus. Notably. the majority of High Courts held the writ
of habeas corpus as maintainable.
The majority of 4 judges (Chief Justice A.N. Ray, Justice M. Hameedullah Beg,
Justice P.N. Bhagwati and Justice Y.V. Chandrachud) held that with the proclamation
of emergency, and the subsequent suspension of enforcement of Art. 21, no writ lies
in court against detention of a person. The majority held that no person has
any locus standi to move any writ petition under Article 226 before a High Court for
Habeas Corpus, or any other writ or order or direction, to challenge the legality of an
order of detention in view of Presidential Order dated 27th June 1975.
Ray C.J. held that fundamental rights including the right to personal liberty are
conferred by the Constitution. Any pre constitution rights, which are now included
in Article 21, do not remain in existence and cannot be enforced if Article 21 is
suspended. The court further held that Article 21 is the sole repository of rights to
life and personal liberty against the State. Any claim to a writ of Habeas Corpus for
enforcement of Article 21 becomes barred by the Presidential Order under Art.
359. He further observed that where any right which existed before the
commencement of the Constitution has been incorporated in Part III, the common
law right would not exist under the Constitution.
Justice H.R. Khanna famously dissented from the majority, a dissent that costed
him the position of Chief Justice of India. He disagreed with the position of the
majority that Art. 21 can be suspended by the declaration of Emergency. He held that
if the right to enforce Art. 21 is suspended then there would be no remedy against
deprivation of a person‘s life or liberty by the State even though such deprivation
might be without the authority of law or even in flagrant violation of the provisions
of law. Observing that such a position would be against rule of law, J. Khanna noted
that, ―without such sanctity of life and liberty, the distinction between a lawless
society and one governed by laws would cease to have any meaning.‖
Justice Khanna, in his dissent, held that Article 21 cannot be considered to be the
sole repository of the right to life and personal liberty. Sanctity of life and liberty
was not something new when the constitution was drafted, and the principle that no
one shall be deprived of his life and liberty without the authority of law was not the
gift of the constitution, Justice Khanna declared.
Such rights existed before the Constitution came into force. And even in the
absence of Article 21 in the Constitution, the State has got no power to deprive a
person of his life or liberty without the authority of law. Art. 21 is not the sole
repository of the right to personal liberty. Such a right not only follows from
common law, but it also flows from statutory laws like the penal law in force in
India. Therefore, he reasoned that before the constitution came into force, no one
could be deprived of his life or personal liberty without the authority of law. Such a
law continued to be in force after the constitution came into force in view of Article
372 of the constitution.
After this judgement, Justice Beg was made Chief Justice of India superseding
Justice Khanna.
The overruling in K.S. Puttaswamy
In 2017, the Supreme Court in K.S. Puttaswamy v. UOI (AIR 2017 SC 4161)
overruled the decision of ADM Jabalpur. Justice D.Y. Chandrachud (writing with 3
other judges- Justice J.S. Khehar, Justice R.K. Agarwal, and Justice S. Abdul
Nazeer) held that the ADM Jabalpur case was flawed.
Justice Nariman and Justice Kaul also categorically overruled the decision in ADM
Jabalpur. The majority, in almost echoing J. Khanna, they observed:
―No civilized state can contemplate an encroachment upon life and personal liberty
without the authority of law. Neither life nor liberty are bounties conferred by the
state nor does the Constitution create these rights. The right to life has existed even
before the advent of the Constitution. In recognising the right, the Constitution does
not become the sole repository of the right.‖
With this, the judiciary has attempted to bury the darkest chapter of its own history,
but only time will tell whether it has been finally buried.
Maneka Gandhi, a journalist who was about to go to other country for some official
work. So, she applied for the passport under Indian passport act 1967 and her
passport was issued on 1 June 1976. on the 4th of July 1977, she received a letter
from the regional passport officer intimating to her that it was decided by the
government of India to impound her passport under sec.10(3)(c)of the act ―in public
interest‖. The petitioner was required to surrender her passport within 7 days from
the receipt of that latter.
Maneka Gandhi immediately addressed a letter to the regional passport officer
requesting a copy of a statement about the reason for making the order as provided
in sec.10(5). A reply was sent by the government of India, ministry of external
affairs on 6th july 1977 stating that the government decided ―in the interest of
general public‖ not to furnish her a copy of statement of reasons for the making of
the order.
Maneka Gandhi now filled a writ petition under article 32 of the constitution of
India challenging action of government in impounding her passport and declining
to give reasons for doing so. She challenges sec 10(3)(c) unconstitutional because
it‘s a violation of fundamental right under art. 14,19(1).
This arbitrary act of impounding the passport eventually led to the pronouncement
of a unanimous decision by a seven-judge bench of the apex court comprising M.H.
Beg (CJI), Y.V. Chandrachud, V.R. Krishna Iyer, P.N. Bhagwati, N.L. Untwalia, S.
Murtaza Fazal Ali and P.S Kailasam.
The court overruled Gopalan by stating that there is a unique relationship between
the provisions of Article 14, 19 & 21 and every law must pass the tests of the said
provisions. Justice Bhagwati and Justice Krishna Iyyer gave natural law colour to
procedure established by law clause in Art 21 and said procedure must be right, just
and fair and not arbitrary, fanciful or oppressive.
The court held that the scope of ―personal liberty‖ is not be construed in narrow and
stricter sense but has to be understood in the broader and liberal sense. Therefore,
Article 21 was given an expansive interpretation. Art 14, 19 and 21 are not
mutually exclusive and form a golden triangle.
Mr A.K.Gopalan popularly known as AKG was an Indian Communist leader who
was serving the Communist Party of India. He was detained ‗preventively‘ under
Section 3(1) of the provisions of the Preventive Detention Act, 1950. According to
Mr Gopalan, he was detained in the jail of Madras since December 1947 without a
trial. He was sentenced to imprisonment under the ordinary criminal law but those
sentences were set aside. One of the orders of Madras State Government on 1st
March 1950 was served to him when was still detained.
Mr Gopalan filed a petition under Article 32(1) of the Constitution of India for a
writ of habeas corpus against the order under Section 3(1) served to him according
to the provision of the Preventive Detention Act, 1950. In the writ of habeas corpus,
he challenged the grounds of legality of the Act 4 of 1950 under which the order
was served to him. He contended that the provisions of the Preventive Detention
Act, 1950 transgress and thus amounts to a violation of the Fundamental Rights
under Article 13, 19, 21 and 22 of the Constitution of India. He also challenged the
order on the ground that it was issued with mala fide reasons to him.
In the above case, the court with the majority of four held that ―the word ―law‖
used in Article 21 of the Constitution of India only means the procedural due
process and since the preventive detention law under which Gopalan was detained
was a valid law, Gopalan‘s detention was lawful even though the law may violate
some of his other Fundamental Rights such has his Right to Freedom of Movement
under Article 19, or, the detention was arbitrary under Article 14.‖
Supreme Court by the majority judges held that the words which are the same in
two different provisions cannot be understood in the same light and considered it
has that the words have the same meaning. In respect to the contention raised by the
petitioner of the violation of the Fundamental Right under Article 21 and the
meaning and usage of the words ―procedure established by law‖ does not amount to
mean ―due process‖. If the legislature would have meant that these two words have
the same meaning or refer to the same thing the framers of the constitution would
have expressed it clearly. The word law means lex and not just so they cannot
abridge and violate Article 21.
In that case it was argued by the petitioner that whether the validity of any law shall
be decided by the fact that it is a procedure established by law or the law along with
being established by law shall also conform to principles of natural justice. The
main debate was around the scope of the word ―procedure established by law‖ on
the point that can such procedure be arbitrary or unreasonable or should it always
be just, reasonable and fair.
The majority bench however rejecting all the arguments of the petitioner held that
the word law under Article 21 doesn‘t necessarily be in conformity with the
principles of natural justice.
But it was Justice Fazal Ali‘s opinion in the case that paved the way for a liberal
approach of the interpretation of Art. 21. Justice Fazal Ali dissented with the
majority by holding that the right to life u/a 21 does constitute Principles of Natural
Justice and the courts should check that any procedure established by law do not
suffer with the problem of unreasonableness & arbitrariness. The spirit of Justice
Fazal Ali‘s argument was that the procedure should be just, fair and reasonable.
The 42nd Constitutional Amendment Act, 1976, section 55 amended Article 368,
to give the parliament unlimited and unfettered power to amend any part of the
Constitution, including Part III. Also, section 4 of the Amendment Act, which made
substitutions in Article 31C on the Constitution, thereby giving any law in
pursuance of any Directive Principle in Part IV of the Constitution from being
challenged for being violative under Article 14, 19 and 31 of the Constitution.
After the Emergency, during the power of Janata Party, the Amendment was
challenged. The bench in Minerva Mills v. Union of India invalidated section 55 of
the Amendment Act.
Finally, in Waman Rao v. Union of India, AIR 1981 SC 271, the Supreme Court
made it clear that any Act or Regulation in the Ninth Schedule prior to April 24,
1973, will have immunity from being challenged for abrogating provisions of Part
III. But the Acts or Regulations after 24th April 1973 will be subjected to judicial
review based on the judgment of Kesavananda Bharati case.