Chapter 1 : HISTORICAL BACKGROUND OF INDIAN CONSTITUTION
Historical background of Indian constitution
The British rule had a great impact on Indian constitution and its polity. Various acts were brought by the British to regulate the Indian affairs, these laid down the legal framework for organization and functioning of government in British India. These acts form the historical background of Indian constitution and can be studied under two heads i.e.
The Company rule (1773 – 1858)
The Crown rule (1858 – 1947)
COMPANY RULE (1773 – 1858)
• 1600 → ‘East India Company’ (It was a private company) was founded. The company was given an ‘exclusive right’ to trade in India under a charter granted by the Queen Elizabeth.
• 1765 → The East India company obtained ‘diwani rights’ of Bengal, Bihar and Orissa after its victory in the Battle of Buxar 1764.
• ‘Diwani rights’ refer to the rights over revenue and civil justice. These rights gave excessive powers to the East India company, servants of the company utilised these powers for corrupt activities. Thus, British government felt the need to regulate the company affairs in India by laying down a legal framework.
| Acts | Regulation of EIC | Administrative changes | Other changes | Significance |
|---|---|---|---|---|
| Regulating act of 1773 | • Prohibited the servants of the company to engage in private trade. • Court of Directors (Governing body of the company) had to report about Indian affairs (Revenue, civil, military) to the British government. | • Designated Governor of Bengal as Governor-General of Bengal. • First ‘Governor General of Bengal’ was Lord Warren Hastings. • Governor of Bombay + Madras presidencies were made subordinate to Governor General of Bengal. | • Provided for Supreme court which had jurisdiction over all inhabitants of Calcutta. • SC had power to administer personal laws of the defendants i.e. trial of Hindus and Muslims was done according to their own personal laws. | • First step by British government to regulate + control the East India company. • Recognized for the 1st time the political and administrative functions of the company. • Laid the foundation for central administration in India |
| Pitt’s India act of 1784 | • It clearly distinguished the commercial and political functions of the company. • It made mandatory for all civil + military officers disclose their property in India and Britain. | • Created a system of Double government → Court of Directors and Board of control. • Court of Directors – Commercial affairs, Board of Control – Political affairs | • For the first time the company territories were called ‘British possessions in India’. • Supreme control over Company’s affairs + administration was given to British Government. | |
| Charter Act of 1793 | • The company’s trade monopoly in India was extended for another 20 years. • EIC → had to make payment of the employees + Board of Control from Indian revenues. • EIC to pay British govt. 5 lakh Pounds each year. | • Governor General was given over-riding power over governor of presidencies. | • Royal approval was mandatory for the appointment of Governor-General + Governors + Commander-in-Chief. |
| Acts | Regulation of EIC | Administrative changes | Other changes | Significance |
|---|---|---|---|---|
| Charter Act of 1813 | • Trade monopoly of East India company in India was abolished (exception include trade in Tea and trade with China). | • Sovereignty of British crown over Indian company territories was asserted. • Empowered Local Governments to impose taxes and punish those who did not pay them. | • Christian missionaries were allowed in India to preach their religion. • Western education needed to spread among inhabitants of British territories in India. • Allocation of 1 Lakh rupees was done to achieve the same | • British assumed a new responsibility of providing education to the Indian people. • The strict control on missionary activities was relaxed by the act. |
| Charter Act of 1833 (Also known as Saint Helena Act) | • Ended the activities of East India company as a commercial body, making it a purely administrative body. | • Governor General of Bengal was made ‘Governor General of India’. • Lord William Bentinck was First Governor General of India. • Governor General was vested with all civil + military powers. • Exclusive legislative power was given to Governor General of India for the entire British India. The act deprived the Governors of Bombay and Madras of their legislative powers. • Strength of Governor General’s Council was increased to 4 from earlier 3 with the inclusion of Law member Lord Macaulay. • Indian laws were codified and consolidated. | • Principle of non-discrimination introduced 1) No Indian to be denied employment under company based on religion, colour. 2) Provision for abolition of Slavery.(It was abolished in 1843) • Restrictions on immigration of Europeans and acquiring property were lifted. • Provision for open competition negated (civil service). | • Final step towards centralization in British India. • EIC → became the trustee of crown in the field of British administration. • India first law commission was constituted which drafted the Indian penal code (IPC), in 1860. |
| Charter Act of 1853 | • Last act enacted by the British parliament to regulate the company affairs. The company rule was abolished after the Revolt of 1857. | • Separated the legislative and executive function of Governor General council. (Legislation was treated as a special function). • Indian (central) Legislative council: functioned as a ‘mini parliament’. For this 6 new members were provided in the council who were known as legislative councillors. • Local representation was introduced for the first time (4 out of 6 members were appointed by the local/ provincial government – Madras, Bombay, Bengal, Agra). | • Introduced an open competition for selection and recruitment of civil service – Thus, the civil service was made open to Indians too | • legislative wing of the Governor-General’s Council laid the foundation of Indian Parliamentary government. • Led to the birth of Indian civil services. • Local representation in legislative council was introduced for the first time. • First step was laid for inclusion of Indians in the administrative affairs. |
Historical background of Indian constitution
CROWN RULE (1858 – 1947)
After the Revolt of 1857 or the ‘sepoy mutiny’ the British government decided to abolished the East India Company, and transferred the powers of Government, territories and revenues to the British Crown. This was done by the Government of India Act, 1858 also known as the ‘Act for Good government’.
| Acts | Executive/Administrative changes | Legislative changes | Other changes |
|---|---|---|---|
| Government of India act 1858 (Act of Good govt.) | • Designation of Governor General of India changed to Viceroy of India. • First viceroy and the last Governor General of India → Lord Canning. • A new office ‘Secretary of State’ for India was given complete control over Indian administration. • 15-member council (advisory) was established for assisting Secretary of the state | • System of Dual Government abolished (Board of control + Court of Directors done away it). • Dissolved East India company → Administration came under direct British rule. • Did away with policies like doctrine of lapse. • Independent status to Indian princes and chiefs provided they accept British suzerainty. | |
| Indian Council Act of 1861 | • Portfolio system (introduced by Lord Canning) was given Statutory recognition. • Viceroy was empowered to issue ordinances. | • Representative Institutions – Indian Legislative Council would comprise of 6 to 12 members. Half of them would be non-officials. • These Non-officials could include Indians (not explicitly mentioned in the act). • Viceroy appointed 3 Indians – Raja of Benares, Maharaja of Patiala, and Sir Dinkar Rao – as non-officials in legislative council. • Decentralisation: Legislative powers of Bombay and Madras Presidencies was restored. | • New legislative council established for Bengal, northwesten province and Punjab |
| Indian Council Act of 1892 | • Number of members (non-official) → Increased in central + provincial legislative assemblies. • Official majority was still maintained. • Empowered legislative councils → Power of discuss the Budget. | • Limited + indirect provision for use of elections was made. The word ‘election’ was not used. • Process was described as nomination based on recommendation of certain bodies (district council, Municipality) | |
| Indian council Act 1909 (Morley – Minto reforms) | • First time → Provision was made for associating Indians to the executive council of viceroy and Governor. • Satyendra Prasad Sinha → first Indian to join Viceroy’s executive council (Law member). • Two Indians were nominated to the Council of the Secretary of State for Indian affairs | • Indians were given the membership to the Imperial Legislative council for the first time. • The provincial legislative assembly had to have non – official majority. (Mostly Indians). • Increased the size of legislative council (16 to 60 seats in central legislative assembly). • Enlarged deliberative functions of legislative council i.e., power to discuss budget, ask supplementary questions, move resolutions etc. | • Separate electorates were given to the Muslims – Under this the Muslim members were to be elected only by Muslim voters. • It also provided separate representation for presidency corporations, chamber of commerce and zamindars. |
| Acts | Executive/Administrative changes | Legislative changes | Other changes |
|---|---|---|---|
| Government of India Act 1919 – (Montagu – Chelmsford reforms) | Central government • Viceroy executive council → three out of six members of the viceroy executive council were to be Indians Provincial government (Dyarchy) • Governor is head of the executive • Under the system two classes of administrators → Executive councillors and ministers. • Administration of reserved list → Governor + executive council (not responsible to legislature). • Secretary of State + Governor General could interfere in matters under the reserved list. • Administration of transferred list → Governor + Ministers (responsible to legislature). • These ministers were nominated from among the elected members of the legislative council. • Interference of Secretary of State + Governor-General is restricted in matters under the transferred list. | Central government • Bicameralism was introduced: Upper house (council of state) and Lower house (Legislative assembly). • Majority of the members both houses chosen by direct elections Provincial government • Increased size of provincial legislative assemblies. Now about 70% of the members were elected. • Division of subjects in provinces was done under two lists reserved list and transferred list. • Reserved Subjects: Law and order, irrigation, finance, land revenue, etc. • Transferred Subjects: Education, local government, health, excise, industry, public works, religious endowments, etc. | • For the first time → provincial budgets was separated from the central budget. • Thus, the provincial legislatures were authorized to enact budgets • Extended the principle of communal electorates – Sikhs, Indian Christians, Europeans, and Anglo-Indians. • New office of the High commissioner for India in London was established. • Establishment of a public service commission. (Central public service commission – 1926). |
| Government of India act 1935 | • Creation of an All-India Federation • Federation was to consist of British India + princely states willing to join it • Federation never came into being because of lack of support from the required number of princely states. • Governor had to act on the advice of ministers responsible for provincial legislature (diarchy ended). • Dyarchy was adopted at the Centre | • Division of powers (Between centre and provinces) under 3 lists • Federal List (Centre) Provincial List (Provinces) Concurrent List (Both) • Residual powers was vested in the Viceroy (Power over subjects not mentioned in any of the lists). • Introduction of bicameralism in six out of eleven provinces • Provided ‘Provincial autonomy’ | • Extension of principle of communal representation to women, depressed classes, and workers. • Establishment of the Reserve Bank of India to control credit and currency of the country. • Establishment of Federal, Provincial and Joint public service commissions. • Provided for the establishment of ‘federal court’ which was set up in 1937 |
| Government of India act 1947 (ended British rule) | • Partition of India and created 2 independent dominion India and Pakistan • Abolition of office of Secretary of the State | • Empowered the constituent assemblies of 2 dominions to adopt their own constitution and repeal any British rule. • Assigned dual functions (constituent and legislative) to the constituent assembly formed in 1946. | • It granted freedom to Indian princely states to join either dominion (India or Pakistan) or remain independent. |
Chapter 2 : MAKING OF THE CONSTITUTION
CHAPTER 2
Making of the Constitution
INTRODUCTION
The Indian constitution was drafted by an assembly of elected representatives called the Constituent Assembly. The demand for constituent assembly grew in the later stages of the Independence struggle.
DEMAND FOR A CONSTITUENT ASSEMBLY
| Year | Events |
|---|---|
| 1934 | M. N. Roy first proposed Constituent Assembly |
| 1935 | Indian National Congress (INC) officially demanded the setting up of a Constituent Assembly for framing the Constitution of India |
| 1940 | Demand was accepted in principle by August offer of 1940. |
| 1942 | Cripps mission proposal were rejected due to Muslim league demand of having 2 autonomous state with separate Constituent Assembly |
| 1946 | Constituent Assembly was constituted as per the Cabinet Mission Plan. Its proposals were accepted by both parties |
The constituent assembly came up when India was still under British rule. However, the constituent assembly formed was a sovereign body and had representation from almost all sections of the society.
FORMATION OF CONSTITUENT ASSEMBLY
Key Facts Related to Formation of Constituent Assembly
| Year | The Assembly was constituted in November 1946 |
|---|---|
| Objective | Enable appropriate transfer of sovereign power from British authorities to Indian leadership. |
| Representation | It had representation from both provincial legislature + Princely states. |
| Composition | Total 389 representatives (296 from British India + 93 allotted to Princely states. British provinces seats were divided among 3 principal communities Muslim, Sikh and generals (all except Muslim and Sikhs) |
| Mode of Election | Partly elected (Indirectly elected by Members of Provincial assemblies) + Partly nominated body (Members nominated by Princely states). |
| Result of elections | Indian National Congress (208 seats), Muslim League (73 seats) and small groups and independents (15 seats). |
IMPORTANT FACTS RELATED TO CONSTITUENT ASSEMBLY
Key Facts Related to Working of Constituent Assembly
| 1st meeting | The members of the Constituent Assembly held their first meeting on December 9, 1946. |
|---|---|
| Interim President | 1st meeting was attended by 211 members and was presided over by Dr. Sachchidananda Sinha |
| Elected President | Dr. Rajendra Prasad |
| Two Vice Presidents | H.C. Mukherjee and V.T. Krishnamachari. |
| Duration of the Assembly | Constituent Assembly took 2 years, 11 months and 18 days to complete its task. |
| 26th November, 1949 | On this date the Constituent Assembly adopted, enacted and gave to the people of India the Constitution of India |
After India gained Independence certain changes were seen in the position of the constituent assembly.
CONSTITUENT ASSEMBLY AND INDIAN INDEPENDENCE ACT, 1947
• The Independence act made the following changes to the Constituent Assembly:
• It made the Assembly a fully sovereign body and also a legislative body.
• As a legislative body, it performed two different functions: 1) framing the Constitution 2) Enactment of ordinary laws for free India.
• The Assembly became the first Parliament of free India, chaired by Rajendra Prasad to perform constituent functions and chaired by G.V. Mavlankar to perform legislative functions.
• The final strength of the Assembly came down from 389 (originally fixed under Cabinet Mission Plan) to 299.
OBJECTIVES RESOLUTION
• Moved in the 3rd meeting (13th December 1946) of Constituent assembly by Jawaharlal Nehru.
• Laid down the underlying principles + philosophy of the constitutional structure.
The summary of the resolution read as follows:
• India is an independent sovereign republic with the power to draw up its own Constitution.
• Indian Union shall comprise territories of British India, the territories that now form the Indian States and other parts outside India and the States who are willing to be constituted into India.
• All the territories forming India shall be autonomous units with all powers and functions of Government and administration save and except such powers and functions as are vested or assigned to the Union.
• All power and authority of sovereign independent India and its constituent parts are derived from the people.
• All people of the Indian Union shall be guaranteed and secured justice (social, economic and political); equality of status of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality.
• Adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes.
• The territorial integrity of the Republic and its sovereign rights on land, sea and air will be maintained according to justice and the law of civilised nations.
• India will make its full and willing contribution to the promotion of world peace and the welfare of mankind.
OTHER FUNCTIONS PERFORMED BY CONSTITUENT ASSEMBLY
The Constituent Assembly, apart from framing the Constitution, performed other functions as well:
Enactment of the ordinary laws of the country.
Ratification of India’s membership of the Commonwealth in May 1949.
Adoption of the national flag on July 22, 1947.
Adoption of the national anthem and national song on January 24, 1950.
Elected Dr. Rajendra Prasad as the first President of India on January 24, 1950
It continued to function as the parliament of the country till the formation of the first parliament after the general elections of 1951-52.
COMMITTEES OF CONSTITUENT ASSEMBLY
The Constituent Assembly formed 22 committees to take up the responsibility of drafting the new Indian Constitution. Here are the following important committees:
Major Committees- There were 8 major committees
| Committee | Head |
|---|---|
| Union Power Committee | Jawaharlal Nehru |
| Union Constitution Committee | Jawaharlal Nehru |
| States Committee | Jawaharlal Nehru |
| Provincial Constitution Committee | Sardar Patel |
Making of the Constitution
Committee
| Committee | Head |
|---|---|
| Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas | Sardar Patel |
| Rules of Procedure Committee | Dr. Rajendra Prasad |
| Steering Committee | Dr. Rajendra Prasad |
DRAFTING COMMITTEE OF THE CONSTITUTION
The function of the drafting committee was to formulate a rough draft of the new Constitution. Drafting Committee. Comprised of Seven Members (including Chairman).
• Dr BR Ambedkar (Chairman)
• N Gopalaswamy Ayyangar
• Syed Mohammad Saadullah
• Alladi Krishnaswami Ayyar
• KM Munshi
• N Madhava Rao (replaced B.L. Mitter)
• TT Krishnamachari (replaced D.P. Khaitan)
ENFORCEMENT OF THE CONSTITUTION
• Original constitution had Preamble, 395 articles, and 8 Schedules.
• Preamble was written after the rest of the Constitution.
• Some provisions of the Constitution pertaining to citizenship, elections, provisional parliament, temporary and transitional provisions, came into force on November 26, 1949, itself. Rest on the commencement of the constitution i.e., on 26th January 1950.
CRITICISM OF THE CONSTITUENT ASSEMBLY
The critics have criticised the Constituent Assembly on various grounds, as follows
• Non-Representative: All members were not directly elected by the people of India.
• Not Sovereign: As it was constituted by the British Government’s proposals.
• Time consuming: American constitution took only four weeks to complete their work however the Constituent Assembly took a long time to frame the Constitution.
• Domination of Congress: Critics argue that the assembly was dominated by only Congress.
• Lawyers – domination: Critics claim that the Constituent Assembly was dominated by lawyers and their view, is the primary cause of the Constitution’s bulkiness and complication.
• Hindu Dominated: Critics argue that the Constituent assembly had the representation from only one major community that is Hindus and others were not adequately represented in the assembly.
IMPORTANT FACTS RELATED TO CONSTITUTION
Key Facts of Constitution
| Elephant | It was adopted as the symbol (seal) of the Constituent Assembly |
|---|---|
| Sir B.N. Rau | He was the legal/constitutional advisor to the Constituent Assembly |
| H.V.R Iyengar | He was the secretary to the Constituent Assembly |
| S.N. Mukerjee | He was the chief draftsman of the constitution in the Constituent Assembly |
| Prem Behari Narain Raizada | He was the calligrapher of the Indian Constitution |
| Nand Lal Bose and Beohar Rammanohar Sinha | The original version of the constitution was beautified and decorated by these artists |
| Vasant Krishan Vaidya | The calligraphy of the Hindi version of the original constitution was done by him. |
Chapter 3 : SALIENT FEATURES OF THE CONSTITUTION
CHAPTER 3
Salient Features of the Constitution
INTRODUCTION
Indian constitution has borrowed features from almost every known constitution of the world. However, the constitution has several unique features which distinguish it from other constitutions. The salient features of our constitution flow directly and indirectly from the preamble which indicates the faith of framers in the ideals, objectives and goals as mentioned in our Constitution.
Table
| Features | Related Details |
|---|---|
| Lengthiest Written Constitution | • About 465 Articles (divided into 25 Parts) and 12 Schedules • Reasons: 1) Geographical Factors: India’s vastness and diversity (2) Historical Factors: Influence of GoI Act, 1935 (3) Single Constitution: Union + State (4) Domination of legal luminaries |
| Drawn From Various Sources | • Dr. B.R. Ambedkar: Constitution of India has been framed after ‘ransacking all the known Constitutions of the World’. • Structural part: Government of India Act of 1935. • Philosophical part of the Constitution (the Fundamental Rights and the Directive Principles of State Policy) derive their inspiration from the American and Irish Constitutions respectively. • Political Part: British Constitution. |
| Blend of Rigidity and Flexibility | • Two types of amendments are provided by Article 368 1. Special majority of the Parliament, (2/3 of present and voting + supported by more than 50% of total strength) 2. Special majority of the Parliament and with the ratification by half of the total states with simple majority. • Some provisions can be amended by simple majority (these are not considered amendment under Article 368). |
| Federal System with Unitary Bias | • Federal Features, viz., dual government, division of powers, written Constitution, supremacy of Constitution, rigidity of Constitution, independent judiciary and bicameralism. • Unitary Features, viz., strong centre, single constitution, single citizenship, integrated judiciary, appointment of Governor by the centre, AIS, emergency provisions etc. |
| Parliamentary Form of Government | • Fundamental Principle: Co-operation and Coordination b/w legislature and executive organs. • Features: • Presence of nominal and real executives. • Majority party rule. • Collective responsibility of the executive to the legislature. • Double membership. • Leadership of the prime minister or the chief minister. • Dissolution of the lower House (Lok Sabha or Assembly). |
| Synthesis of Parliamentary Sovereignty and Judicial Supremacy | • Indian parliamentary system: Proper synthesis between the British principle of parliamentary sovereignty and the American principle of judicial supremacy. • The Supreme Court can declare the parliamentary laws as unconstitutional through its power of judicial review. • The Parliament can amend the major portion of the Constitution through its constituent power |
| Integrated and Independent Judiciary | • Supreme Court is the guarantor of the fundamental rights of the citizens and the guardian of the Constitution. • Integrated: SC + HC + Lower Courts enforce both union and state laws. • Independent: Security of tenure to judges of SC and HC, all expenses of HC and SC are charged on consolidated Fund etc. |
Salient Features of the Constitution
Table
| Features | Related Details |
|---|---|
| Fundamental Rights Part-III (Article 12-35) | • Right to Equality (Articles 14–18) • Right to Freedom (Articles 19–22) • Right against Exploitation (Articles 23–24) • Right to Freedom of Religion (Articles 25–28) • Cultural and Educational Rights (Articles 29–30). • Right to Constitutional Remedies (Article 32). • FR’s aim to promote political democracy. • FR’s are enforceable by courts through writs. |
| Directive Principles of State Policy Part – IV (Art 36 – 51) | • These principles are meant for promoting the ideal of social and economic democracy. • Aim to establish welfare state • Non-justiciable in nature • Similar to instruments of instructions under GoI Act, 1935 |
| Fundamental Duties (total 11) | • Part IV-A & Article 51 A • Fundamental Duties serve as a reminder to citizens that while enjoying the rights, they must be conscious of their duties towards the country, society and fellow citizens • Included by 42nd Constitutional Amendment Act of 1976 on the recommendation of the Swaran Singh Committee. • The 86th Constitutional Amendment Act of 2002 added one more fundamental duty. • Non-justiciable in nature |
| A Secular State | • Western concept of Secularism connotes a complete separation between religion and the state • Indian concept of Secularism connotes giving respect to all religions or treating all religions equally • The word ‘Secular’ was added to the Preamble of the Indian Constitution by the 42nd Constitutional Amendment Act of 1976. • The idea of Secularism was reflected in Preamble, Art. 14,15, 16, 25-30, Art. 44. |
| Universal Adult Franchise | • The voting age was reduced to 18 years from 21 years in 1989 by the 61st Constitutional Amendment Act of 1988. |
| Independent Bodies | • These bodies are envisaged by the constitution as the Bulwarks of the democratic system. • These are Election commission, Union Public Service commission, Comptroller and Auditor-General, etc. |
| Emergency Provisions | • During the emergency the Federal structure of the country got converted into a Unitary one. • National emergency (Article 352) • State emergency (President’s Rule): On the ground of 1) failure of the Constitutional machinery in the state (Article 356), (2) failure to comply with the directions of the Centre (Article 365). • Financial emergency (Article 360). • It converts federal structure into unitary one |
| Three-tier Government | • Democratic decentralization by establishing PRI’s (73rd CA 1992) and ULB’s (74th CA 1992) which form third tier of government |
| Co-operative Societies | • 97th Constitutional Amendment Act of 2011 gave constitutional status to co-operative societies • Fundamental right to form co-operative societies (Article 19 (1) (c)). • DPSP: Promotion of co-operative societies (Art. 43-B). • New Chapter Added – Part IX B Parliament has power to regulate multi-state co-operative societies. |
SOURCES FOR THE INDIAN CONSTITUTION
| Sources | Features of the Constitution |
|---|---|
| Government of India Act of India Act 1935 | (1) Federal Scheme (2) Office of governor (3) Judiciary (4) Public Service Commissions (5) Emergency provisions (6) administrative details |
| British Constitution | (1) Parliamentary government (2) Rule of Law (3) Legislative procedure, (4) Single citizenship, (5) cabinet system (6) prerogative writs,(7) parliamentary privileges (8) Bicameralism. |
| US Constitution | (1) Fundamental rights (2) Independence of judiciary (3) judicial review (4) Impeachment of the president, (5) Removal of Supreme Court (6) high court judges (7) post of vice-president. |
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Sources
| Sources | Features of the Constitution |
|---|---|
| Irish Constitution | (1) Directive Principles of State Policy (2) Nomination of members to Rajya Sabha (3) Method of election of president. |
| Canadian Constitution | (1) Federation with a strong Centre (2) Vesting of residuary powers in the Centre (3) Appointment of state governors by the Centre (4) Advisory jurisdiction of the Supreme Court. |
| Australian Constitution | (1) Concurrent List (2) Freedom of trade, commerce and inter-course (3) Joint sitting of the two Houses of Parliament. |
| Weimar Constitution of Germany | Suspension of Fundamental Rights during Emergency. |
| Soviet Union (USSR now Russia) | Fundamental duties and the ideal of justice (social, economic and political) in the Preamble. |
| French Constitution | Republic and the ideals of liberty, equality and fraternity in the Preamble. |
| South African Constitution | (1) Procedure for amendment of the Constitution (2) Election of members of Rajya Sabha. |
| Japanese constitution | Procedure established by Law |
SCHEDULE IN INDIAN CONSTITUTION
| Schedule | Subject Matter |
|---|---|
| First Schedule | • Names of the States, Union Territories and their territorial jurisdiction |
| Second Schedule | • Salaries, Emoluments, Privileges of certain dignitaries: President, Governor, Speaker, Deputy Speaker of Lok Sabha and Legislative Assembly, Chairman and Deputy Chairman of Rajya Sabha and Legislative Council, Judges of Supreme Courts and High Courts, CAG. • Not mentioned are MPs, MLAs, Union and State Ministers, Election Commissioner, UPSC Members |
| Third Schedule | • Oath and Affirmations: Union and State Ministers, MLA and MP Contestants, MLA & MPs, Judges of Supreme Court and High Court Judges, CAG. • Note: CAG, Judges of Supreme and High Court are included in second and third schedules • Not included in Third Schedule: President & Vice President, Speaker & Deputy Speaker of Lok Sabha, Legislative Assembly, Chairman & Deputy Chairman of RS & Legislative Council, Election Commission, UPSC, SPSC |
| Fourth Schedule | • Allocation of the Seats in Rajya Sabha to States and UT’s |
| Fifth Schedule | • Administration of Scheduled Areas and Scheduled Tribes |
| Sixth Schedule | • Administration of Tribal Areas in Assam, Meghalaya, Tripura and Mizoram |
| Seventh Schedule | • Division of Powers 1. Union list (100) 2. State list (61) 3. Concurrent list (52) |
| Eight Schedule | • Official Languages recognized by the Constitution originally 14 and now 22 languages • 21st CAA-Sindhi • 92nd CAA- Bodo, Dongri, Maithili, Santhali • 71st CAA – Konkani, Manipuri, Nepali • 96th CAA – Odia |
| Ninth Schedule (1st CA 1951) | • Land reforms and other matters to be placed by State and Centre. |
| Tenth Schedule (52nd CA 1985) | • Anti- Defection Law provisions. |
| Eleventh Schedule (73rd CA 1992) | • Panchayats (29 Subjects) (243-G) |
| Twelfth Schedule (74th CA 1992) | • Powers that can be transferred to Municipalities (18 Subjects) (243-W). |
Chapter 4 : PREAMBLE
CHAPTER 4
Preamble
INTRODUCTION
• Preamble contains the overall philosophy of the Constitution.
• Concept was taken from the US Constitution.
• Based on the Objective resolution moved by Pandit Jawaharlal Nehru.
• Amended only once by the 42nd constituent assembly (1976.) Added three new words – socialist, secular and Integrity.
• Neither a source of legislature’s powers nor a prohibition upon its powers.
• Non-justiciable i.e., its provisions are not enforceable in courts of law.
TEXT OF THE PREAMBLE
• The Preamble of the Indian Constitution in the present form reads as follows:
• WE, THE PEOPLE OF INDIA, have 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’.
COMPONENTS OF THE PREAMBLE
Source of authority: People of India.
Nature of Indian State: Sovereign, Socialist, Secular Democratic and Republican polity.
Objectives of the Constitution: Justice, liberty, equality and fraternity
Date of adoption of the Constitution: November 26th, 1949
Source of the authority
We, the people of India: The term means that the constitution has been drawn up and enacted by the people through their representatives, and not handed down to them by a king or any outside powers
Nature of Indian State
“Constitute India into a Sovereign, Socialist, Secular, Democratic Republic”
Table
| Nature | Meaning and Position of India |
|---|---|
| Sovereign | • Meaning: Government represented by people have the supreme right to make decisions on internal + external matters. No external power can dictate the government of India. • India’s position: India is ‘sovereign’ as it is neither a dependency nor a dominion of any other nation, but an independent state. Can conduct its own affairs without interference. Can acquire a foreign territory or cede a part of territory in favour of a foreign state. |
| Nature | Meaning and Position of India |
|---|---|
| Socialist | • Meaning: Wealth is generated socially and should be shared equally by society. Government should regulate the ownership of land and industry to reduce socio-economic inequalities. • India’s position: DPSP have a socialist content. 42nd amendment added the term “socialism” to the Preamble.. • India does not follow strict socialism i.e. “communistic socialism” (nationalisation of all means of production and distribution and the abolition of private property). Indian socialism is a blend of Marxism and Gandhism, leaning towards Gandhian socialism. |
| Secular | • Meaning: Citizens have complete freedom to follow any religion. But there is no official religion. Government treats all religious beliefs and practices with equal respect. • Concept of Secularism: 2 major concepts of secularism include the following: • Negative Concept of Secularism (western concept): Strict separation between the State (the politics) and the church (religion). The state will not interfere in any religious matter and religion will not interfere in any state matters. • Positive Concept of Secularism: All religions are given equal respect and protection. State is neutral in religious matters i.e., it protects all religions and at the same time guarantees religious rights to every citizen. Any step which is inconsistent with this idea is invalid. • India’s position: India is a secular country (Positive concept of secularism). 42nd constitutional amendment act added the term “secular” to the Preamble. Various provisions in the constitution reveal the secular character of the Indian state i.e. Article 15, Articles 25 to 28 etc. |
| Indian Secularism | Western Secularism |
|---|---|
| State is neutral in all religious matters | State is completely separate from all religious matters |
| Upholds a positive relationship between state and religion | Negative relationship i.e. State believes in complete non-interference in religious matters. Also, religion does not interfere in the affairs of the state |
| Till now there is no uniform civil code | Single uniform code of law is used to provide justice. Religious background is not taken into account. |
| State can aid religious institutions. | State does not aid religious institutions |
| Rights of both individual and religious community are protected. | Individual and his rights are given prime importance. |
Democratic
• Meaning: A form of government where people enjoy equal political rights, elect their representatives and hold them accountable. The government is run according to some basic rules.
• Democracy is of two different forms – direct democracy and indirect democracy.
• Direct Democracy: The electorate decides on policy initiatives directly without elected representatives as proxies. Tools of Direct democracy are as follows:
Tools of Direct Democracy
| Referendum | Proposed legislation is referred to the electorate for settlement by their direct votes. |
|---|---|
| Initiative | People can propose a bill to the legislature for enactment. |
| Recall | Voters can remove a representative or an officer before the expiry of his term, when he fails to discharge his duties properly. |
| Plebiscite | Obtaining the opinion of people on any issue of public importance. It is generally used to solve the territorial disputes |
• Indirect Democracy: Example; Representative democracy.
• Elected people represent a group of people. Representatives elected by the people exercise the supreme power and thus carry the government and make laws. two types of representative democracy are Parliamentary and Presidential democracy.
• India’s position: Indian constitution provides for representative Parliamentary democracy i.e. executive is responsible to the legislature for all its policies and actions. Universal adult franchise, periodic elections, rule of law, independence of judiciary, and absence of discrimination on certain grounds etc. show the democratic character of Indian polity.
| Nature | Meaning and Position of India |
|---|---|
| Republic | • Definition: The head of the state is an elected person and not a hereditary position. Republic means 2 more things; 1) Political sovereignty is vested in the people and not one individual like a king 2) Absence of any privileged class. Thus, all public offices being opened to every citizen without any discrimination. • India’s position: India is a republic where the elected head of the state is known as the President. He is elected through an indirect election for a five year term. |
Objectives of Indian State
• Indian State aims to secure for all its citizens justice, liberty, equality and fraternity so as to promote unity among the citizens and maintain integrity in the society.
• Russian Revolution (1917): Ideal of social, economic, and political justice.
• French Revolution: Inspired values of liberty, equality, and fraternity
Table
| Objective | Meaning and Types |
|---|---|
| Justice | • Meaning: Citizens should not be discriminated on the grounds of caste, religion and gender. Social inequalities should be reduced. Government should work for the welfare of all, especially of the disadvantaged groups. Preamble provides for the following: • Social justice: Equal treatment of all citizens without regard to their social distinction based on caste, colour, religion etc. State can take affirmative actions to improve the conditions of backward classes and women. • Economic justice: Absence of discrimination between persons based on their economic status. Removal of high inequality in wealth, income and property. Social + economic Justice = ‘distributive justice’. • Political justice: All citizens have equal political rights, equal access to all political offices, and equal voice in government. |
| Liberty | • Meaning: There should be no unreasonable restrictions on the citizens in what they think, how they wish to express their thoughts and the way they wish to follow up their thoughts in action. • Absence of restrictions on an individual’s activities. Providing opportunities for the development of individual personalities. It is not absolute but a qualified right. |
| Equality | • Meaning: All are equal before the law. The traditional social inequalities should be ended. The government should ensure equal opportunity for all. • The concept embodies equality of status and opportunity to all or any Indian citizens. Privileges are absent for any particular section of society and at the same time, adequate opportunities without discrimination are to be provided for all individuals. • This provision covers three aspects of equality: civil, political, and economic. • Civic equality essentially means that all individuals have equal rights and freedoms. (Article 14, 15 and 17). • Economic equality means providing fair and equal opportunity to all for work (Article 16). • Political equality guarantees to all persons an equal opportunity for participation in the political process (Article 325) |
| Fraternity | • Meaning: All should behave as if we are members of the same family. No one should treat a fellow citizen as inferior. • It refers to a sense of brotherhood. The Constitution contains various provisions to promote this sense of fraternity such as Single citizenship, provision in fundamental duties etc. |
IS THE PREAMBLE PART OF THE CONSTITUTION?
The question whether Preamble is part of the constitution or not has been dealt by Supreme court in its various judgments.
| Case | Judgements |
|---|---|
| Berubari Union Case (1960) | Preamble is not part of the constitution and it cannot be amended. |
| Kesavananda Bharati case (1973) | Preamble is a part of the constitution and can be amended. |
| LIC of India case 1995 | It was reiterated Preamble of India is part of the constitution |
Chapter 5 : INDIAN UNION AND ITS TERRITORIES
CHAPTER 5
Indian Union and its Territories
INTRODUCTION
Article 1 to 4 under Part I of the Indian constitution deal with Union and its territories.
Table
| Articles | Subject-Matter |
|---|---|
| Article 1 | Name and territory of the Union. |
| Article 2 | Admission or establishment of new States. |
| Article 3 | Formation of new States and alteration of areas, boundaries or names of existing States. |
| Article 4 | Laws made under articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental and consequential matters. |
Article 1: Name and territory of the Union
Provisions under Article 1 of Indian Constitution
| Name of the country | Constituent Assembly adopted both names; India (modern name), that is, Bharat (Traditional name). |
|---|---|
| India as a ‘Union of States’ | Indian has been described as a ‘union of states’ this has 2 implications 1) Indian federation is not the result of an agreement among states 2) Indian states have no right to secede from the federation. |
| ‘Territory of India’ is wider expression than ‘Union of India’ | Union of India: All the states in India form the part of Union of India. Territory of India: Territory of India includes states + union territories + territories that may be acquired by the GoI in future |
Article 2: Admission or establishment of new states
Provisions under Article 2 of Indian Constitution
| Scope | The article talks about admission or establishment of new States. |
|---|---|
| Power of Parliament | The article provides the Parliament with two powers: a) Power to admit new states (which already exist) b) Power to establish new states (States which are non – existent) |
| Example | Sikkim was included in India in 1975 under the provisions of this article. It was not part of India before this. |
Article 3: Formation of new States and alteration of areas, boundaries or names of existing States
Provisions under Article 3 of Indian Constitution
| Scope | Article talks about formation of ‘new states’ and alteration of areas, boundaries or names of ‘existing states’. |
|---|---|
| Power of Parliament | Parliament can create new states out of existing states by separation of territory or by merging two or more states or part of states or by uniting territory to a part of any state. Parliament can increase or diminish the area of any state. Parliament can alter the boundaries of any state. Parliament can change the name of any state. |
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Provisions under Article 3 of Indian Constitution
Special requirements
• Before exercising its power under Article 3 there are 2 special conditions which need to be fulfilled:
• Prior recommendation of the President is needed before introduction of the bill for the purpose in parliament (State legislature view is taken by the President before recommending this bill in parliament (State in which changes are being made).
Limited power of the State Legislature (Unitary feature)
• Non – binding: State’s views are not binding and the President (or the Parliament) can choose to ignore the state’s suggestions.
• No reference for new changes: If new changes are made in the bill, it is not necessary to refer that bill to the concerned state again for its views.
• Provision in case of Union territories: If the bill is related to a Union territory with a state legislature in it (such as Delhi and Pondicherry), no reference is needed to be made to that legislature for its view on the bill.
Article 4: Laws made under articles 2 and 3 provide for the amendment of the First and the Fourth schedule
• There are two parts to this article:
• Any law which contains provisions under Article 2 or Article 3 shall contain provisions for the amendment of the First schedule and the Fourth Schedule which may be necessary to give effect to the provisions of the law.
• Laws made under Art 2 and Art 3 shall not be considered as “constitutional amendment” under Article 368.
EVOLUTION OF STATES AND UNION TERRITORIES
Important Committees
• Dhar commission (1948)
• Recommended re organisation of the states on the basis of administrative convenience instead of linguistic factor.
• JVP committee (1948)
• It formally rejected language as the basis for the reorganisation of states.
• State Reorganization commission (1955)
• Fazl Ali (Chairman)
• K.M. Panikkar
• A.N. Kunzru
• It broadly accepted the language as a basis for the reorganisation of states but rejected the theory of one language- one state. Recommended doing away with the four fold classification (Division of States into Part A, B, C and D).
• Based on Fazl Ali commission, States reorganisation act 1956 and 7th CAA were passed which led to abolition of four fold classification of states and led to formation of 14 states and 6 UTs.
• First linguistic state created in India – ‘Andhra State’ in 1953
STATES FORMED AFTER 1956
• 1960: Maharashtra, Gujarat from Bombay
• 1963: Nagaland
• 1966: Haryana, Chandigarh and HP from Punjab
• 1972: Manipur, Tripura and Meghalaya.
• 1975: Sikkim (36 CAA)
• 1987: Mizoram, Arunachal Pradesh and Goa
• 2000: Chattisgarh, Uttarakhand and Jharkhand
• 2014: Telangana
RECENT DEVELOPMENTS
• Union territories of Dadra and Nagar Haveli and Daman and Diu were merged into a single union territory in 2019.
• Union territories of Jammu and Kashmir and Ladakh were created. This was the 1st time that a State had been turned into a Union territory.
Chapter 6 : CITIZENSHIP
CHAPTER 6
Citizenship
INTRODUCTION
Citizenship implies full and equal membership of a political community. India has two kinds of people i.e., citizens and aliens. Unlike aliens, citizens are full time members of the Indian state and are provided with certain civil and political rights.
The Indian constitution has not provided any detailed or elaborate provisions related to citizenship and has mainly empowered Parliament to deal with such matters.
CONSTITUTIONAL PROVISIONS RELATED TO CITIZENS
Provisions Related to Citizenship in India
| Part II | Article 5 to Article 11. |
|---|---|
| Constitutional provision | Not permanent or elaborate. Identify only those who became citizens at the commencement of the constitution. |
| Parliament | Empowered to deal with matters related to citizenship (Article 11). |
| Legislation | Citizenship Act, 1955 (amended various times) |
| List | Union list |
| Type | Single citizenship |
| Borrowed | From British Constitution |
Constitutional provisions
| Articles | Subject-Matter |
|---|---|
| Article 5 | Citizenship at the commencement of the constitution. |
| Article 6 | Rights of citizenship of certain persons who have migrated to India from Pakistan. |
| Article 7 | Rights of citizenship of certain migrants to Pakistan. |
| Article 8 | Rights of citizenship of certain persons of Indian origin residing outside India. |
| Article 9 | Persons voluntarily acquiring citizenship of a foreign State not to be citizens. |
| Article 10 | Continuance of rights of citizenship. |
| Article 11 | Parliament to regulate the right of citizenship by law. |
Constitutional provision provide for citizenship under 4 categories:
Person who is domiciled in India: the parent is Indian (descent) or resident in India for 5 years.
People who came from Pakistan
People who went to Pakistan and returned back to India before commencement of this constitution.
Persons of Indian origin residing outside India (by registration)
CITIZENSHIP ACT, 1955
The Constitution has empowered Parliament to make provisions related to Citizenship. Parliament enacted Citizenship Act, 1955 which provided certain ways to acquire Citizenship:
By Birth
| Date of Birth | Conditions for citizenship |
|---|---|
| January 26th 1950 – July 1, 1987 | Individual shall be a citizen irrespective of the nationality of his parents. |
| On or after July 1, 1987 | Individual shall be a citizen if either of his parents is a citizen of India at the time of his/her birth. |
| On or after December 3, 2004 | Individual shall be a citizen if both of their parents are Indian citizens or if one of their parents is an Indian citizen and the other is not an illegal migrant in the country at the time of his birth. |
By Descent
| A person born outside India | Citizenship |
|---|---|
| On or after 26th January 1950 but before December 1992 | Considered as a citizen if his Father was a citizen at the time of his birth. |
| On or after December 10, 1992 | Considered as a citizen if either of his Parents is a citizen of India at the time of his birth. |
| December 3, 2004 | The parents (who are citizens of India) have to declare that their minor child does not hold a passport of any other country. Register within one year of the date of birth at an Indian Consulate in that country. If the said term has expired, registration can be done with the approval of the Central Government. |
By Registration
• Central Government can register as a citizen of India any person based on application (not being an illegal migrant)
• Person of Indian origin (ordinarily resident in India for 7 years).
• Spouse of Indian Citizen (ordinarily resident in India for 7 years).
• Minor children of parents who are citizens of India.
• Previous citizen of independent India (ordinarily resident in India for 12 months).
• Overseas citizen of India cardholder for 5 years (ordinarily resident in India for 12 months).
By Naturalisation
Central Government may grant a certificate of naturalisation to any person (who is not an illegal migrant) on application based on the following conditions:
• Resided in India or been in the service of a Government of India (12 months preceding the application + should have resided/been in government service for an aggregate not less than 11 years)
• Good character.
• Adequate knowledge of a language specified in the 8th Schedule to the Constitution.
By incorporation of Territory
• If a foreign territory becomes part of India, the Indian Government specifies the persons who shall be the citizens of India (from the notified date).
LOSS OF CITIZENSHIP
The provisions related to loss of citizenship are found in the constitution but are majorly dealt by the Parliament via citizenship act, 1955. The act provides for loss of citizenship by renunciation, termination and deprivation.
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Provisions Related to Loss of Citizenship
| Constitutional Provisions | Article 9 of the constitution provides that if an Indian Citizen becomes a citizen of any other country then he/she will automatically lose his/her Indian Citizenship |
|---|---|
| Citizenship Act 1955 | By Renunciation: Declaration renouncing his/her citizenship. Minor child also lose citizenship (can re-apply after age of 18). By Termination: If a person consciously acquires citizenship of another country (does not apply during war). By Deprivation: On grounds of 1) Fraud 2) Disloyalty to constitution 3) Connection with enemy 4) Imprisonment of naturalised citizen 5) Ordinary resident (out of Indian for 7 years) |
Indians living abroad can be segmented into Non – resident Indians (NRI) and OCI (Overseas citizen of India). Below is a comparative chart showing difference b/w Indian resident, NRI and OCI.
Table
| Category | Indian passport | Resident in India | Expatriate | Tax status | OCI card |
|---|---|---|---|---|---|
| Indian (resident) | Yes | Yes | No | Yes | No |
| Non-resident Indian (NRI) | Yes | No | Yes (of India) | No | No |
| OCI (Overseas citizen of India) | No | Yes (in India) | Yes (in India) | Yes (if resident of India) rest no | Yes |
OVERSEAS CITIZEN OF INDIA
• OCI is not a Citizenship. No right to vote or hold public offices.
• Provides similar rights available to residents or citizens of India.
• Provides for permanent residency i.e. allowing them to live and work in India indefinitely.
• Registration of OCI is done by Central Government based on application.
• Renunciation of OCI card can be done by OCI by making a declaration.
• Cancellation of OCI Card: Fraud, Disaffection towards constitution, Conspiring with enemy nation, Imprisonment (two years or more), Decision of Government, Violation of law by OCI, dissolution of marriage.
Rights with Overseas Citizen of India Cardholder
| Rights available to OCI Cardholder | Rights not available to OCI Cardholder |
|---|---|
| • Multiple entries, multi-purpose lifelong visa to visit India; • Exemption from reporting to Police authorities for any length of stay in India; • Parity with NRIs in financial, economic and educational fields except in the acquisition of agricultural or plantation properties; • Treated at par with Non-Resident Indian in the matter of inter-country adoption of Indian children; • Treated at par with resident Indian nationals in the matter of tariffs in air fares in domestic sectors in India; • Charged the same entry fee as domestic Indian visitors to visit national parks and wildlife sanctuaries in India; • Parity with Non-Resident Indian in respect of entry fees to be charged for visiting the national monuments, historical sites and museums in India; • Parity with Non-Resident Indians to appear for the All India Pre-Medical Test etc; • OCI Registration booklet is treated as OCI’s identification for any service rendered to him/her; • In case proof of residence is required, OCI may give an affidavit attested by a notary stating that a particular/specific address may be treated as their place of residence in India and may also give their overseas residential address as well as email address if any | • Not entitled to the right to equality of opportunity in matters of public employment. • Ineligible for election as President. • Ineligible for election as Vice-President. • Ineligible for appointment as a Judge of the Supreme Court. • Ineligible for appointment as a Judge of the High Court. • Cannot register as a voter. • Ineligible for being a member of the House of the People or of the Council of States. • Ineligible for being a member of the State Legislative Assembly or the State Legislative Council. • Ineligible for appointment to public services and posts in connection with affairs of the Union or of any State except for appointment in such services and posts as the Central Government may specify. |
Citizenship
The citizenship act, 1955 has been amended various times. The most recent amendment took place in 2019 and brought changes mainly to provide citizenship to certain category of illegal migrants.
CITIZENSHIP (AMENDMENT) ACT, 2019
Background:
• Regulation of Citizenship in India: Citizenship Act, 1955. Provides 5 methods to acquire citizenship – Birth, descent, registration, naturalisation (extended residence in India), and by incorporation of territory into India.
• Illegal migrant: Foreigner who enters India illegally, i.e., without valid travel documents, like a visa and passport. Those who enter India legally, but stay beyond the time period permitted in their travel documents.
• Provision for illegal migrants: Regulation by Foreigners Act, 1946 + the Passport (Entry into India) Act, 1920. Central government can regulate the entry, exit and residence of foreigners within India.
Provisions under Citizenship amendment Act, 2019
The 2019 amendment made some significant changes to the Citizenship Act of 1955. Below are its major features:
• Specified class of illegal migrants from the 3 countries will not be treated as illegal migrants.
• Should belong to any of the six communities i.e. Hindu, Sikh, Buddhist, Jain, Parsi, or Christian + 3 countries i.e. Afghanistan, Pakistan and Bangladesh.
• Entered India before or on the cut off date of 31st December 2014.
• Citizenship through naturalisation. Requirement of residency has been decreased from 11 years to 5 years.
• Does not apply to two categories i.e. 6th schedule states + States under Inner line permit for example Arunachal Pradesh, Mizoram, Nagaland, and Manipur.
• Central Government can cancel OCI membership if provisions of the Citizenship amendment act are violated or any other law so notified by the Central Government. Opportunity to be heard should be provided.
Due to the recent agitations in Assam (against violation of Assam accord) and various other parts of the country (due to provisions of citizenship amendment act, 2019) both NRC and NPR have been in news.
NATIONAL REGISTER OF CITIZENS (NRC)
| Parameters | Details |
|---|---|
| Definition | It is an official, verified and valid record of all Indian citizens, containing details of individuals which are essential to establish their claim to citizenship. Creation was mandated by the 2003 amendment of the Citizenship Act, 1955 |
| Objective | To document all the legal citizens of India so that the illegal immigrants can be identified and deported |
| Components | It includes demographic information about all those individuals who qualify as citizens of India as per the Citizenship Act, 1955. It will contain details of only Indian Citizens. |
| History | It was first prepared after the 1951 Census of India. NRC has not been updated till today (except in Assam in 2013 -14) but only after the Supreme Court order). |
NATIONAL POPULATION REGISTER (NPR)
| Parameters | Details |
|---|---|
| Usual residents | The NPR or National Population Register is a list of “usual residents” of the country. |
| Compulsory registration | It is compulsory for every usual resident of India to register in the NPR. |
| Inclusion | Includes both Indian citizens and foreign citizens. Objective is to create a database of every “usual resident” in the country. |
| Preparation of NPR | It is supposed to be prepared at the local (village/sub-town), sub-district, district, state and national levels under provisions of the Citizenship Act 1955 and the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. |
| Parameters | Details |
|---|---|
| Data collection | The data for the National Population Register was first collected in 2010 by the Government of India. It was expected to be repeated every 10 years. |
| Requirements | No documents are required for NPR. Self-declaration will be treated as enough for data entry in the population registrar. |
DIFFERENCE BETWEEN NPR, NRC AND CENSUS
NRC, Census and NPR are fundamentally different from each other. NPR will include all the usual residents of the country whereas NRC is intended to list only the citizens of India. Below we will look in detail the difference between National population register, National register of citizens and Census.
Table
| Parameters | NRC | NPR | Census |
|---|---|---|---|
| Definition | It is a registry of citizens | It is a registry of usual resident of an area | It is an exercise for calculating the total population of the country. |
| History | First prepared in 1951 during the census and has not been updated since. | First time prepared in 2011 during census and has not been updated since. | First census was conducted in 1872. |
| Coverage | Only citizens are included where documents and information proving citizenship are sought. | Usual residents including citizens and non-citizens are included in the list. Its purpose is to count the number of people irrespective of their citizenship. | It includes the whole population of the country where information on demography, economics activity, literacy and education, etc. are collected. |
| Objective | To identify Indian citizens and identify illegal migrants living in the country. | To calculate all the residents of a local area and data collected here is also to be used for creation of NRC as per Citizenship Rule 2003. | Its purpose is for population assessment, policy formulation and planning. |
| Regulation | Regulated under Citizenship Act 1955. | It is regulated by Citizenship Rule 2003 | It is regulated by Census Act 1948 |
Chapter 7 : FUNDAMENTAL RIGHTS
CHAPTER 7
Fundamental Rights
INTRODUCTION
Rights are essentially an entitlement or a justified claim. They denote what we are entitled to as citizens, as individuals and as human beings. Various types of rights exist which differ in origin, scope enforcement etc., we will look at some important ones below.
DIFFERENT TYPES OF RIGHTS
Table
| Types | Meaning |
|---|---|
| Natural rights | • Rights given to us by nature or God instead of ruler or society. • Inalienable rights • Other rights are derived from these basic rights. • Example: Right to preserve life was considered a natural right. |
| Human rights | • Rights available to us simply because we are humans. • Every human has an intrinsic value. Should be given equal opportunity to realise their full potential. |
| Constitutional rights | • These rights are provided by the constitution to the people. • Not applicable to all citizens unlike Fundamental rights. • Example: Right to vote under Article 326 is available only after achieving maturity i.e. 18 years. |
| Statutory rights | • Provided to people by various laws passed by the Legislature example MNREGA (Provides Right to work), National food security act (Provides Right to food) etc. |
| Fundamental rights | • Fundamental as they are essential for all round development of the Individual • Enforceable and Justiciable in the Supreme court (under Article 32) and High court (under Article 226). • Rights are enforced by using writs. |
Difference Between Fundamental Rights and Legal Rights
Table
| Parameters | Fundamental rights | Legal rights |
|---|---|---|
| Protection | Protected and guaranteed by the constitution of India | Protected and guaranteed by the ordinary law of India |
| Amendment | It can be changed by amending the constitution itself. | It may be changed by the legislature by ordinary law making process. |
| Basic structure | Part of the basic structure of the constitution. | Not part of the basic structure doctrine. |
| Justiciability | If these are violated one can move to the Supreme court or High court. Can directly approach the Supreme court | In case, legal rights are violated an individual has to move to the ordinary court first. The Judicial hierarchical process has to be followed. |
| Safeguards | Most of the Fundamental rights provide protection against the state action and not against private individual. Exception: Rights pertaining to abolition of untouchability + rights against exploitation. | These rights impose obligation on the individual (and in some cases against the state too). |
ABOUT FUNDAMENTAL RIGHTS
Fundamental rights are considered ‘fundamental’ because first, they are mentioned in the constitution and second they are justiciable in nature i.e. one can approach the court in case they are violated. Only the most important rights are recognised by the state as fundamental and enshrined in the constitution.
Details Related to Fundamental Rights
About
• Part III of the constitution from Article 12 to Article 35.
• Described as the ‘Magna Carta of India’.
• Inspired from US – Bill of Rights
• Promote Political democracy
• Original constitution – 7 Fundamental rights. Presently 6 Fundamental rights (Right to property was deleted (Article 31) was deleted.
Features
• Not absolute rights but qualified. Reasonable restrictions can be imposed on them.
• Mostly available against arbitrary actions of the state. Some of them are available against actions of Private Individual as well.
• Defended and guaranteed by both the Supreme court (under Article 32) and High court (under Article 226).
• Most have negative nature i.e. place limitations on the authority of the State. Some are positive as well i.e. conferring certain privileges on the persons.
• Can be amended i.e. Not sacrosanct or permanent. Amendment can be done without affecting the ‘basic structure’ of the constitution.
• With the exception of Article 20 and Article 21 they can be suspended during ‘National emergency’.
• Scope is limited because of Article 31 A, Article 31 B and Article 31 C. Can also be limited when martial law has been imposed in the area.
• Most of the FR are directly enforceable. Other require enabling law to be made ‘only’ by the Parliament (Article 35). Example Article 21 A etc.
The Fundamental rights mentioned in the constitution can be divided into the following:
Table
| Fundamental Rights | Articles |
|---|---|
| Right to equality | Articles 14–18 |
| Right to freedom | Articles 19–22 |
| Right against exploitation | Articles 23–24 |
| Right to freedom of religion | Articles 25–28 |
| Cultural and educational rights | Articles 29–30 |
| Right to constitutional remedies | Article 32 |
APPLICABILITY OF FUNDAMENTAL RIGHTS
Table
| Applicability | Articles and Availability |
|---|---|
| Few are available ‘Only to Citizens’ | Article 15,16,19,29 and 30 are available with citizens only and not to foreigners. |
| Available to Citizens and foreigners. Not for enemies | Article 14,20,21,21A,22,23,24,25,26,27,28 are available with both citizens and foreigners (not enemy aliens). |
| Against Citizens | Article 15,17,23,24,32(Only Habeas Corpus) are available against State + Private Citizen. |
ARTICLE 12: DEFINITION OF STATE
The fundamental rights basically impose obligation on the state therefore it becomes important to define the state and to understand which institutions come under it.
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Fundamental Rights
Scope of State under Article 12
Definition of the state
Community of Persons permanently occupying a definite territory independent of external control and possessing an organised Government.
Following come under the definition of the State
• Government and Parliament of India i.e. the Executive and Legislature of the Union.
• Government and Legislature of each State i.e. the Executive and Legislature of the various States of India.
• All the local authorities such as municipalities, panchayats, district boards, port and improvement trusts, etc.
• All other authorities that are present in Indian territory or are operating under the supervision of the Government of India i.e. statutory or non-statutory authorities like LIC, ONGC, SAIL, etc.
Position of Judiciary
Judiciary has not been defined under Article 12. Through various Judgments it has been held that ‘only’ when the Judiciary performs ‘non – Judicial functions’ they come under the definition of the State.
Important Judgment
• Ajay Hasia v. Khalid Mujib, 1981: 6 factor test laid down to determine what would be considered state under Article 12.
• Zee Telefilms v. The Union of India 2005: 6 factor test laid down was implemented in this case to determine that BCCI cannot be called ‘state’ under Article 12.
ARTICLE 13: LAWS INCONSISTENT WITH FUNDAMENTAL RIGHTS
This article aids the courts to keep the legislature under check. The article gives duty to the state to implement the fundamental rights and provides the court power to declare laws or act void in case it violates fundamental rights.
Scope of Laws under Article 13
About
• Addresses all those laws which are inconsistent with or in derogation of fundamental rights.
• Laws which are inconsistent with the provisions of Part-III of the Indian Constitution, shall be void.
• Forms the basis of the doctrine of judicial review
Scope
Law under Article 13 include:
• Permanent laws enacted by Parliament or state legislatures.
• Temporary laws like ordinances issued by the president or the state governors.
• Statutory instruments like order, bye-law, rule, regulation or notification.
• Non-legislative sources of law i.e. custom or usage having the force of law.
RIGHT TO EQUALITY (ARTICLE 14–18)
Article 14: Equality Before Law
• Article 14 deals with two concepts: Equality before the law + Equal Protection of Laws
• Rights available to all persons whether citizens + foreigners.
• Below the difference between equality before law and equal protection of law has been mentioned.
Table
| Parameters | Equality Before Law | Equal Protection of Laws |
|---|---|---|
| Definition | Law must be enforced and administered equally among all. | All persons in similar circumstances shall be given the same rights and liabilities. |
| Implications | No special privileges in favour of any person, Equal subjection of all persons to the ordinary law of the land administered by ordinary law courts. No person (whether rich or poor, high or low, official or non-official) is above the law. | Equal treatment in similar circumstances, both in the privileges and liabilities imposed by the law. Similar application of the same laws to all persons who are similarly situated. Like should be treated alike without any discrimination. |
| Origin | British origin | US Constitution |
| Nature | Negative concept as it implies the absence of any special privilege in favour of individuals. | Positive obligation as state ensures every person enjoys equal protection. Provides ‘similar treatment instead of identical one i.e. equality is advocated for only those who are equal. No discrimination amongst equal. However, the equals and unequals cannot be put in the same footing and be treated without discrimination. |
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Article 15: Prohibition of Discrimination on Certain Grounds
Provisions Related to Article 15 of Indian Constitution
Article 15(1)
State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth, or any combination thereof. Applicable against ‘state action’ only and available to citizens. (Discrimination on other grounds is allowed For example: Qualifications of weight, height, etc. in case of police services.)
Article 15 (2)
No discrimination with regards to giving
Access to shops, Public restaurants, hotels and places of public entertainment (applicable to state).
No discrimination in Use of wells, tanks, bathing ghats maintained by state funds for general public (Applies to both citizens and state).
Article 15 (3)
State can make special provisions for Women and Children
Article 15 (4)
State is permitted to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the SC/ST’s. This clause was added by the 1st constitutional amendment act. Added after the Judgment in Champakam Dorairajan case.
Article 15 (5)
Reservations in Private educational institutions whether aided or unaided for OBCs + SC’s/ST’s other than Minority educational Institutions. Added by the 93rd constitutional amendment act.
Article 15 (6)
State is empowered to provide reservations to Economically weaker sections for admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions. Added by the 103rd CAA, 2019.
Table
| Criteria applicable to OBC: Creamy layer criteria | Eligibility criteria for EWSs in Educational Institutions |
|---|---|
| • Constitutional posts: President, Vice President, Judges of SC and HCs etc. • Officers: Top ranked officials (Group A/Group B) • Top ranked army officers: Rank of colonel and above in the Army and equivalent posts in the Navy, the Air Force and the Paramilitary Forces. • Other professions: Doctor, lawyer etc. • Agricultural land: Above certain limit • Annual Income: Gross annual income of more than Rs.8 lakh or wealth above the exemption limit. | • Annual income: Gross annual income (aggregate) below Rs.8 lakh. • Possession of asset: Following asset should be under their possession ♦ 5 acres of Agricultural land and above. ♦ Residential flat of 1000 sq. ft. and above. ♦ Residential plots of 100 sq. yards and above in notified municipalities. (d) Residential plots of 200 sq. yards and above in areas other than the notified municipalities. • Determination of property: Cumulative asset to determine EWS status. • Definition of family: Person who seeks the benefit of reservation + parents + siblings (below 18 years). |
Article 16: Equality of Opportunity in Public Employment
• This Right is available only with Citizens and is applicable ‘only’ to public Institutions and not the private Institutions.
Provisions Related to Article 16 of Indian Constitution
Article 16 (1)
Equality of opportunity in Public employment.
Article 16 (2)
No citizen can be discriminated or made ineligible for employment of any office under the state and on the grounds of only religion, race, caste, sex, descent, place of birth or residence or any combination thereof. (Descent and place of residence are not present in Article 15)
Article 16 (3)
Residence can be prescribed for certain types of Employment or appointment in the state by the Parliament.
Article 16 (4)
State can provide for reservation of appointments or posts in favour of any backward class that is not adequately represented in the state services.
Article 16 (4A)
Provides reservation of seats in matter of ‘promotion’ with consequential seniority (85th amendment) for SC/ST’s.
Article 16 (4B)
Provides for carrying over of unfilled vacancies reserved for SC/ST to subsequent years. This is commonly referred to as ‘carry forward rule’.
Article 16 (5)
Law can be made to provide that incumbent of an office related to Religious or denominational institutions belonging to particular religion.
Article 16 (6)
State is permitted to make a provision for the reservation of up to 10% of appointments or posts in favour of any economically weaker sections of citizens. Added by the 103rd CAA 2019.
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Fundamental Rights
Important Judgments and Commissions
Related Judgements and Commissions
Mandal commission
Appointed under Article 340. Identified 52% of the population as OBCs and recommended 27% Reservations.
Indra Sawhney case, 1992
• Total reservations shall not exceed 50%
• Carry forward rule is valid – Should not violate the 50% rule
• Merit shall not be compromised.
• No reservation in promotions.
• Creamy layer to exclude advanced sections among OBCs.
• Set up a permanent statutory body to examine over – inclusion and under – inclusion in the list of OBCs.
Important amendments
77th amendment
Provided for reservation in promotions in favour of SCs and STs
81st amendment
Empowered the state to fill backlog vacancies even if there cross 50% ceiling.
82nd amendment
It added a provision to Article 335. According to article 335, all reservations which are made for SC/ST’s have to be in accordance with efficiency in administration.
85th amendment
Consequential seniority to SC/ST’s
M Nagaraj case vs Union of India
Upheld reservation in promotions
Laid a criteria to be fulfilled before providing ‘reservation in Promotion’. State is obliged to demonstrate.
• Current backwardness of SC/ST’s.
• Inadequate representation of the community in the relevant sector.
• The reservation will maintain ‘administrative efficiency’.
Jarnail Singh vs Lachhmi Narain Gupta (2018)
• Supreme court laid down that the Nagaraj judgment does not need reconsideration by the seven Judge bench. Besides this the court ruled;
♦ Struck down backwardness criteria: No need for state to collect ‘quantifiable data’ on the backwardness of the SC’s and the ST’s.
♦ Need to prove Inadequate representation: States have to prove inadequacy of representation in relation to specific cadre and not in proportion to SC/ST population in the State.
♦ Extended creamy layer exclusion to SC/ST: It was held that in case of promotions creamy layer exclusion applies to SC/ST’s. Hence, the State cannot grant reservations in promotion to SC/ST individuals who belong to the creamy layer of their community.
Justice Rohini commission
• It was appointed in 2017 with the purpose of sub-categorization of Other Backward Castes.
Article 17: Abolition of Untouchability
The article abolished ‘untouchability’. Applicable to both State and Private citizens.
Term ‘untouchability’ is not defined in the constitution.
It is an absolute right as no reasonable restrictions are applied on this article
Parliament has been empowered to make law for prescribing punishment for untouchability. Protection of Civil rights act was passed by the Parliament.
Article 18: Abolition of Titles
This article abolishes titles and makes four provisions in that regard:
State cannot confer any title on a citizen or a foreigner.
Citizens of India cannot accept any title from any foreign state.
A foreigner working for Indian Government, holding any office of profit or trust under the state cannot accept title, present emolument from foreign state without taking prior consent of the president.
RIGHT TO FREEDOM (ARTICLE 19–22)
Article 19: Protection of Certain Rights Regarding Freedom of Speech, etc.
Under this article six fundamental rights related to freedom are guaranteed to all the citizens of India. These are:
Table
| Article | Freedom | Reasonable restriction |
|---|---|---|
| Article 19 1(a) | Freedom of speech and expression. (Every citizen has right to express his beliefs and convictions. It is an elaborate right and includes freedom of press, freedom of silence, Right to telecast etc. | • Sovereignty and Integrity of India • Security of State • Friendly relation with foreign states. • Public Order • Decency or Morality, • Contempt of court, • Defamation, • Incitement to an offense. |
| Article 19 1 (b) | Every citizens has the right to assemble peacefully and without arms. Citizens can conduct meetings, demonstrations and take out processions. | • Sovereignty and Integrity of India, • Public order, • Other restrictions: • Section 144 of CRPC allows magistrate to restrain an assembly or meeting or procession. • Section 141 IPC assembly 5 or more persons can be made unlawful. |
| Article 19 1 (c) | Right to form associations or unions or co-operative societies: Includes right to continue an association or union, Includes the right to not join or form an association, Does not include the right to strike. | • Sovereignty and Integrity of India, • Public Order • Morality |
| Article 19 1 (d) | Citizen can move freely throughout the territory of the country. | • Interest of general public • Protection of interest of tribals. |
| Article 19 1 (e) | Every citizen has the right to reside and settle in any part of the territory of the country | • General public interest, • Protection of interest of scheduled tribes |
| Article 19 1 (f) | All citizens are given the right to practise any profession or to carry on any occupation, trade or business. | • General Public Interest • Professional and technical qualifications • The business can be monopolised by the state. State is not required to justify its monopoly. |
• These six rights are protected against only state action and not private individuals.
• Article 19 covers only the right to move within the country. Right to move in and out of the country is dealt by Article 21.
• The right under Article 19 is suspended automatically if National emergency is imposed on the ground of external aggression however, it cannot be suspended when the emergency is imposed on the grounds of ‘armed rebellion’.
Article 20: Protection in respect of Conviction for Offences
• Protection against arbitrary and excessive punishment to an accused person.
• Cannot be suspended during an emergency.
• Available to both Citizens + Foreigners
Table
| Article 20 | Explanation | Related facts |
|---|---|---|
| Article 20 (1): No ex-post facto law | No person shall be convicted of an offense by applying retrospective laws (i.e. by applying law backwards). | Applies only to criminal laws not to civil and tax laws. In criminal case it This immunity is not available in case of Preventive detention. |
| Article 20(2): No double Jeopardy | No person shall be prosecuted and punished for the same offense more than once. Conditions: Must have tried before court/Court must be competent/ Conclusion of proceeding (acquittal or conviction)/ Should be in force/Should be tried for the same offense. | Applies only for proceedings before court of law or judicial tribunals (not applicable before administrative or departmental authorities). |
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Fundamental Rights
Table
| Article 20 | Explanation | Related facts |
|---|---|---|
| Article 20(3): No self-Incrimination | No person accused of any offence shall be compelled to be a witness against himself. | Does not cover the following: Blood Samples, Signatures, Thumb impressions, Exhibition of body, Production of material. |
Article 21: Protection of Life and Personal Liberty
• No person shall be deprived of his life or personal liberty except according to procedure established by law.
• It is available to both citizens and non – citizens.
• Wide scope of this article: Right to livelihood, Right of Prisoners for dignified life, Right to die with dignity, Right to Privacy etc. all form part of Article 21 of the constitution.
Table
| Parameters | Procedure Established By Law | Due Process of Law |
|---|---|---|
| Origin | British constitution. | Constitution of United States. |
| Scope | Does not assess whether the laws made by the legislature or by the concerned authority are fair, just and not arbitrary. | Determines whether a law is valid by examining both its procedural and substantive characteristics. |
| Role of Judiciary | Judiciary’s role is limited to evaluating the procedure used by the legislature to enact the law in question. | Judiciary has the power to determine the laws’ procedural adequacy as well as its intention. |
| Protection | Safeguards a citizen’s rights from the executive’s arbitrary actions. | It safeguards citizens’ rights from executive + legislative actions. |
| Constitutional provision | Provided in Article 21 | Not explicitly mentioned in the Indian Constitution |
Related Judgment
Table
| Judgments | Arbitrary executive action | Arbitrary legislative action | Due process of law | Meaning of liberty |
|---|---|---|---|---|
| A.K. Gopalan case | Protection under Art. 21 is available | Protection under Art 21 is not available | Not Available | Narrow: liberty relating to person, body of the individual |
| Menaka Gandhi case | Protection under Art. 21 is available | Protection under Art 21 is available | Available | Broad view: Includes opportunity to live with dignity and to develop ones capacity etc. |
Article 21 A: Right to Education
Article 21 A of Indian Constitution
Provision
• State shall provide for free and compulsory education to children in the age of 6 to 14 years in such a manner as a state may determine
86th CAA, 2002
• Inserted Article 21 A
• Amended Article 45 says ‘The state shall endeavour to provide early childhood care and education for all children until they complete the age of 6 years’.
• Added a new Fundamental duty: Every citizen of India to provide opportunities for education to his child or ward between the age of 6 and 14 years
Enforcement
• Right to Education 2009 was enacted to enforce this
Article 22: Protection against arrest and detention
• Protection to those arrested and detained.
• Punitive detention refers to punishment for an offense committed after trial + conviction in court.
• Preventive detention refers to detention without trial + conviction in court.
Fundamental Rights
Detailed Provisions under Article 25 of Indian Constitution
Rights of State
• State can also regulate secular activities associated with religion.
• Provide for religious reform of Hindu religious institutions.
Explanations
• Two explanations are mentioned in the article i.e., Wearing and carrying of Kirpans is to be included in the profession of the Sikh religion;
• Hindus, include Sikhs, Jains and Buddhists.
Article 26: Freedom to manage religious affairs
Detailed Provisions under Article 26 of Indian Constitution
Provision (Protects ‘collective freedom’ of religion)
Religious denomination have been given the following rights:
• Establish and maintain institutions for religious/charitable purpose.
• Manage its own affairs in religious matters.
• Own and acquire movable/immovable property.
• Administer the property in accordance with law.
Reasonable Restrictions
Public Order, Morality, Health
Definition of ‘Religious denomination’
Not provided in the constitution. SC in its Judgment has held that ‘religious denomination’ must satisfy 3 conditions
System of belief
Common organisation
Distinctive name.
Article 27: Freedom as to payment of taxes for promotion of any particular religion
• Provision Freedom from taxation for religious institutions
• Tax cannot be levied for the promotion or maintenance of any particular religion/religious denomination.
• This article prohibits only levy of a tax and not a fee.
• Fee controls secular administration of religious institutions and does not promote or maintain religion.
Article 28: Freedom as to attendance at religious instruction or religious worship in certain educational institution
• Freedom from attending ‘religious instructions’ in educational institutions.
Table
| Type of Institute | Status of religious instruction |
|---|---|
| Institutions wholly maintained by the State | Completely prohibited |
| Institutions administered by the State but established under any endowment or trust | Permitted |
| Institutions recognised by the State | Permitted on a voluntary basis. May or may not attend |
| Institutions receiving aid from the State | Permitted on a voluntary basis. May or may not attend. |
CULTURAL AND EDUCATIONAL RIGHTS (ARTICLE 29–30)
Article 29: Protection of interests of minorities
Detailed Provisions under Article 29 of Indian Constitution
Article 29 (1)
• Any section of the citizens residing in any part of India having distinct Script, language and culture shall have right to protect the same.
• Group right, as it is available for both ‘religious’ and ‘linguistic’ minorities
• SC held that the term ‘Section of the citizens’ includes both, majority as well as minority.
• Absolute right for the minorities and is not subjected to any reasonable restriction.
Article 29 (2)
• No citizen can denied admission into any educational institutions maintained by the state or receiving aid from the state only on grounds of religion race, caste or language.
Article 30: Right to monitor and establish and administer educational institutions
Detailed Provisions under Article 30 of Indian Constitution
Provision
• Rights of minorities (both religious and linguistic) to establish and administer educational institutions.
Scope
• Confined to minorities (unlike article 29 which is applicable to ‘any section of citizens’).
Minorities
• Not defined by the constitution. Minority Status may vary from state to state (both ‘religious’ + ‘Linguistic’ minority).
Type of Minority institutions.
• Institutions that seek recognition as well as aid from the State; (under regulatory power of the state).
• Institutions that seek only recognition from the State and not aid; (under regulatory power of the state) and
• Institutions that neither seek recognition nor aid from the State (free to conduct its own affairs).
Other Facts
• Compensation amount fixed for acquisition of any property of minority institutions shall not restrict the right guaranteed to minorities. (44th constitutional amendment act).
• State cannot discriminate while providing aid to minority institutions.
• No ‘reverse discrimination’ in favour of minorities. Objective of the article is ‘only’ to ensure equality with majority.
• Not an absolute right. Institution cannot mal – administer. Regulatory measures can be put by the state to ensure academic excellence, welfare of teachers and students, conditions of service, state can put conditions to ensure proper utilisation of aid by the state etc.
ARTICLE 32: RIGHT TO CONSTITUTIONAL REMEDIES
• Described as the very soul of the constitution and the very heart of it.
• Basic feature. Cannot be taken away by a constitutional amendment.
• Supreme court has the power to issue directions/orders/writs for the enforcement of Fundamental right.
• Parliament can empower any subordinate court to issue writs of all kinds (not done till now).
• President can suspend the right to move any court for the enforcement of the fundamental rights during a national emergency (Article 359).
• Borrowed from English law where they were known as ‘prerogative writs’.
Comparing writ power of Supreme Court and High Court
Table
| Parameters | Supreme Court | High Court |
|---|---|---|
| Enforcement | Narrow writ jurisdiction: Can issue writs only for the enforcement of fundamental rights. | Wide writ Jurisdiction: Can issue writs for Fundamental Rights + any other purpose (ordinary legal right). |
| Territorial Jurisdiction | Wide territorial jurisdiction. It can issue writs against a person or government throughout the territory of India. | Narrow territorial jurisdiction and it can issue writs within its territorial jurisdiction (state) only or outside its territorial jurisdiction only if the cause of action arises within its territorial jurisdiction |
| Obligation | A remedy under Article 32 is in itself a Fundamental Right and hence, the Supreme Court may not refuse to exercise its writ jurisdiction. | A remedy under Article 226 is discretionary and hence, a high court may refuse (in so far as it relates to FRs) to exercise its writ jurisdiction. |
Table
| Writs | Meaning | Purpose | Locus standi | Against whom |
|---|---|---|---|---|
| Habeas corpus | To have the body of | To release a person who has been detained illegally in prison or private custody | Does not apply | Private citizen or public authority |
| Mandamus | We command | To secure performance of public duties by lower court, Tribunal or public authority. | Applies | Against Public official, Judicial and Quasi-Judicial bodies |
| Certiorari | To be certified | To quash an order already passed by an inferior court, tribunal or quasi – judicial authority | Applies | Judicial and Quasi – Judicial bodies |
Fundamental Rights
Table
| Writs | Meaning | Purpose | Locus standi | Against whom |
|---|---|---|---|---|
| Prohibition | To prohibit/stop | To prohibit an inferior court to continue proceedings in a case in which it holds no jurisdiction. | Applies | Judicial and Quasi – Judicial bodies |
| Quo warranto | By what authority | To restrain a person from holding public office to which he is not entitled/or qualified | Does not apply | Any public authority unqualified for the position. |
ARMED FORCES AND FUNDAMENTAL RIGHTS
Article 33: Power of Parliament to modify the rights conferred by this part in their application to forces
• Parliament (not state legislature) can restrict, abrogate fundamental rights of armed forces, para military force, police forces, intelligence agencies.
• Members of armed forces also include other service providers to the armed forces. Example: Cooks and Carpenters.
MARTIAL LAW AND FUNDAMENTAL RIGHTS
Article 34: Restriction on rights conferred by this part while martial law is in force
• It provides for the restrictions on Fundamental rights while ‘martial law’ in force.
• Martial law has not been defined in the constitution. It refers to situation where civilian administration is run by military authorities.
• Empowers Parliament to indemnify any government servant or any other person when martial law is in force.
• Concept has been derived from Britain.
Table
| Parameters | Martial Law | National Emergency |
|---|---|---|
| Impact | Affects only Fundamental Rights. | Affects Fundamental Rights + Centre-state relations + distribution of revenues and legislative powers between centre and states + Parliament tenure (may). |
| Government and law courts | Suspends government and ordinary law courts. | Government and ordinary law courts continue. |
| Grounds for imposition | Breakdown of law and order due to any reason. | It can be imposed only on three grounds—war, external aggression or armed rebellion. |
| Region where it is imposed | It is imposed in some specific area of the country. | It is imposed either in the whole country or in any part of it. |
| Provision in constitution | It has no specific provision in the Constitution. | It has specific and detailed provision in the Constitution. |
EFFECTING CERTAIN FUNDAMENTAL RIGHTS
Article 35: Legislations to give effect to provisions of Part III of the constitution
• Only Parliament has power to make laws to give effect to certain FRs (ensures uniformity)
• Article 16: Residence as criteria for public employment.
• Article 32: To empower courts other than Supreme Court and high courts to issue writ orders, directions for enforcement of fundamental rights.
• Article 33: To make laws to take away fundamental rights for armed forces – para-military and police.
• Article 34: To indemnify the acts of government servant during martial law.
• Parliament can also make laws for punishment of offenses declared under FRs. Example: untouchability, trafficking etc.
• This Article extends the competence of Parliament to make laws on few matters specified in state list
EXCEPTIONS TO FUNDAMENTAL RIGHTS
• Right to Property was repealed by 44th amendment act, now it is a legal right under article 300A.
• Exceptions to Article 31 are exceptions to Fundamental rights.
Exception to Fundamental Rights
Provided for “Right to Property”
Article 31 of the constitution
Done away by 44th amendment act
Exceptions
Added by the 1st constitutional amendment
• to protect Government legislations which aimed to abolish the Zamindari System
ARTICLE 31A
• Protected 5 categories of laws from being invalidated on grounds of contravention of Article 14, 19 and 31
ARTICLE 31B
• Gave ‘blanket protection’ to all laws placed in the 9th schedule from being declared invalid if they are ultra-vires the provision of constitution
Added by the 25st constitutional amendment
• To implement the provision of Part 4 i.e. Directive Principles of State Policy
ARTICLE 31C
• No law that seeks to implement DPSP Articles 39 (b) and (c), shall be declared void on the grounds of contravention of the FR’s conferred by Article 14 or Article 19
Chapter 8 : DIRECTIVE PRINCIPLES OF STATE POLICY
CHAPTER 8
Directive Principles of State Policy
INTRODUCTION
DPSP can be defined as ideals to keep in mind while making policies and enacting laws. They are constitutional instructions to state in legislative, executive and administrative matters.
• Provision found in Part IV (Article 36 – 51)
• Resemble Instrument of Instructions of GOI act 1935 to the Viceroy
• Inspired by the Irish Constitution
• Dr B R Ambedkar described them as “novel features of the Indian constitution”.
• DPSP + Fundamental rights are described as “philosophy, soul and conscience of the constitution”.
• Non Justiciable in nature.
• Used by court to determine constitutionality of law. SC held that DPSP can be considered as reasonable restriction in relation to Article 14 and 19.
CLASSIFICATION OF DPSP: NOT MENTIONED IN CONSTITUTION
| Principles | Articles |
|---|---|
| Socialistic principles | Article 38, 39, 39A, 39B, 41, 42, 43, 43A, 47 |
| Gandhian principles | Article 40, 43, 43B, 46, 47, 48 |
| Liberal intellectual Principle | Article 44, 45, 48, 48A, 49, 50, 51. |
ADDITION TO DPSP
| Amendment | Additions |
|---|---|
| 42nd amendment | • Article-39: To secure opportunities for healthy development of children. • Article-39A: To promote equal justice and to provide free legal aid to poor. • Article 43A: Participation of workers in the management of industry. • Article 48A: Safeguarding forests and wildlife. |
| 44th amendment | Article 38 (state to secure social order for the promotion of welfare of the people) |
| 86th amendment | Changed content of Article 45, i.e. provision for early childhood care and education of children below 6 years. |
| 97th amendment | Introduced Article 43B: Cooperative societies. |
CONSTITUTIONAL PROVISIONS
| Articles | Provisions |
|---|---|
| Article 36 | Definition of State |
| Article 37 | Application of the directive principles |
| Article 38 | State to secure a social order for the promotion of welfare of the people |
Articles | Provisions
| Articles | Provisions |
|---|---|
| Article 39 | Certain principles of policy to be followed by the State. To secure : a. Rights to adequate means of livelihood b. Equal distribution of material resources of the community for the common good c. Prevention and concentration on health d. Equal pay for equal work e. Preservation of health and strength of workers. f. opportunities for healthy development of children |
| Article 39 A | Equal justice a free legal aid. |
| Article 40 | Organization of village panchayats |
| Article 41 | Right to work, to education, and to public assistance in certain cases. |
| Article 42 | Provision for just and humane conditions of work and maternity relief. |
| Article 43 | Living wage, etc. for workers |
| Article 43A | Participation of workers in management of industries. |
| Article 43B | Promotion of co-operative societies |
| Article 44 | Uniform Civil code for the citizens |
| Article 45 | Provisions for early childhood care and education to children below the age of six years. |
| Article 46 | Promotion of educational and economic interests of scheduled castes, scheduled tribes and other weaker sections. |
| Article 47 | Duty of the state to raise the level of nutrition and the standard of living and to improve public health. Prohibit the consumption of intoxicants. |
| Article 48 | Organisation of agriculture and animal husbandary |
| Article 48 A | Protection and improvement of environment and safeguarding of forests and wild life. |
| Article 49 | Protection of monuments and places and objects of national importance. |
| Article 50 | Separation of judiciary from executive |
| Article 51 | Promotion of international peace and security. |
DIFFERENCE BETWEEN DPSP AND FUNDAMENTAL RIGHT
| Parameters | Fundamental right | Directive Principle of State Policy |
|---|---|---|
| Justiciability | Justiciable. | Non-justiciable |
| Objective | Political democracy | Economic + Social democracy. |
| Nature | Negative: Prohibit state from doing something | Positive: Require state to do certain things |
| Sanction | Legal sanction | Moral + Political sanction |
| Scope | Welfare of the Individual (Individualistic) | Welfare of the Community (Socialistic) |
| Enforcement | Automatically enforced (No legislation needed, some exception like Article 17, 23 and 24) | Not automatically enforced (Require legislation) |
Directive Principles of State Policy 35
CONFLICT BETWEEN DPSP AND FUNDAMENTAL RIGHTS
| Judgements/Amendments | Verdict/Changes made |
|---|---|
| Champakam Dorairajan case (1951) | • Fundamental rights were held superior to the DPSP. • It was held the Fundamental rights can be amended by the Parliament. |
| Golaknath case (1967) | • Fundamental rights were held sacrosanct in nature. • It was held that FR cannot be amended by the Parliament. • Article 368: Gives only Procedure to amend but not the power to amend. |
| 24th and 25th amendment | • Parliament can take away FR • Article 31 C added which made Article 39 (b) and 39 (c) > Article 14, 19, 31. • Thus, it was held that law so made to implement Article 39 (b) and (c) to the extent that they violate article 14, 19 and 31 will not be subject to Judicial review |
| Kesavananda Bharti case (1973) | • Upheld provision which made Article 39 (b), 39 (c) > Article 14, 19 and 31. • Judicial review was held part of basic structure of the constitution. |
| 42nd amendment | • Made all DPSP > Article 14, 19 and 31 • No law to implement Directive principles will be held void on the ground that it violates Article 14, 19 and 31 of the Indian constitution |
| Minerva Mills case (1980) | • All DPSP > Article 14, 19 and 31 held unconstitutional • Balance between FR and DPSP (Basic structure of the constitution) • Article 39 (b) and (c) > Article 14 and 19 (present status) |
Chapter 9 : FUNDAMENTAL DUTIES
CHAPTER 9
Fundamental Duties
INTRODUCTION
Duty conveys a sense of moral obligation and commitment to someone or something. Initially the Indian constitution did not contain provisions related to Fundamental duties; they were added later to the constitution. This addition was done to convey that rights and duties are inter – related i.e. if someone performs his or her duties properly it automatically safeguards the basic rights of others.
| Parameters | Related Facts |
|---|---|
| Origin | Not mentioned in the original constitution. Included by the 42nd amendment, 1976. |
| 42nd CAA, 1976 | Added New Part IV-A + Article 51 A (10 Fundamental duties). |
| 86th CAA, 2002 | Added 1 New FD: To provide opportunity for education to his child between the age 6 and 14 years. At present total FD are 11. |
| Inspired from | USSR constitution |
| Recommendation | Swaran Singh Committee |
| Legal status | Non – Justiciable |
| Applicability | Citizens only |
| Nature | Moral + Civic duties are mentioned |
List of Fundamental duties
• To abide by the Constitution and respect National Flag and National Anthem (Not national song)
• To follow the noble ideals that inspired the struggle for freedom.
• To protect the sovereignty, unity and integrity of India.
• To render national service when called upon to do so.
• To promote the common spirit of brotherhood amongst all Indians + to renounce practices derogatory to the dignity of women.
• To preserve the rich heritage of country’s culture.
• To protect national environment including forests, lakes, wildlife, etc.
• To develop scientific temper, humanism and spirit of reform and inquiry.
• To safeguard public property and to abjure violence.
• To strive towards excellence in all sphere of individuals.
• Duty of the parent/guardian to provide opportunity for education to his child between the age 6 and 14 years.
Chapter 10 : AMENDMENT OF THE CONSTITUTION
CHAPTER 10
Amendment of the Constitution
INTRODUCTION
• Constitutional provision: Part XX (Article 368)
• Power to amend lies with the Parliament.
• Exception: Basic Structure of the Indian constitution (Kesavananda Bharati case )
• Borrowed from South Africa
PROCEDURE FOR AMENDMENT {ARTICLE 368}
Provisions Related to Amendment Procedure in Indian Constitution
| Provisions Related to Amendment Procedure in Indian Constitution | |
|---|---|
| Introduction of bill | Either house of parliament (Lok Sabha or Rajya Sabha) |
| Prior approval of President | Not needed |
| Type of Majority needed | Special Majority |
| Bill in houses | Both the houses need to pass the bill with special majority. |
| Joint seating | No provision exists. Both houses need to pass the bill separately. |
| Amendment of federal provisions | Special majority + ratification by the legislatures of half of the states by a simple majority. |
| Assent to the bill | President must give his assent i.e. Obligatory for the President to given his assent. |
| Role of State Legislature | Cannot introduce such a bill. |
TYPES OF MAJORITY
| Simple Majority | Special Majority | Special Majority of parliament + Consent of States |
|---|---|---|
| • Majority of members of each house present and voting. • Similar to ordinary law-making process. • Not considered amendment under Article 368. • Example: Indian Antarctic Bill, 2022 was passed to have India’s own measures to protect the Antarctic environment | • Majority of 2/3rd members present and voting + more than 50% of the total strength of the house. • Example: 103rd constitutional amendment act which gave 10% reservation for EWS (Economically weaker sections). | • Special majority + Ratification of half of the state legislatures by a simple majority. • Federal provisions are amended using this process. • Example: 101st amendment which introduced GST (Goods and Services Tax). |
VARIOUS PROVISIONS AND TYPE OF MAJORITY REQUIRED
| Types of Majority | Provisions which can be changed |
|---|---|
| Simple Majority | Admission/ establishment of new states (Art.2) • Article 3: Formation of new states & alteration of area, boundaries or names of existing states • Second Schedule (emoluments, allowances, privileges) • Article 169: Abolition/creation of legislative councils in states • Article 100: Quorum in parliament • Article 106: Salaries & allowances of members of the parliament • Article 118: Rules of procedure in parliament • Use of English in parliament • Number of puisne judges in SC • Article 105: Privileges of parliament, its members and committees. • Article 138: Conferment of more jurisdiction to SC • Article 343: Use of official language • Article 5 – 11: Citizenship • Elections to parliament and state legislatures • Article 82: Delimitation of constituencies • 6th Schedule • Union Territories • 5th Schedule |
| Special Majority | • Fundamental Rights • Directive Principles of State Policy • Any other provisions not covered under other two types |
| Special Majority + Ratification of States | • Election of the President and its manner • Extent of executive power of the Union and the states • Supreme Court and High Courts • Distribution of legislative powers between the Union & the states • Seventh Schedule (3 lists) – Art. 246 • Representation of states in parliament • Article 368 GST Council |
RECENT AMENDMENTS TO THE INDIAN CONSTITUTION
| Amendment | Changes introduced by amendment |
|---|---|
| 99th Constitutional amendment (2014) | Formation of a National Judicial Appointments Commission. |
| 100th Constitutional amendment (2015) | Related to the Land Boundary Agreement (LBA) between India and Bangladesh. |
| 101st Constitutional amendment (2017) | Introduced the Goods and Services Tax |
| 102nd Constitutional amendment (2018) | Constitutional status to National Commission for Backward Classes. |
| 103rd Constitutional amendment (2019) | Provided a maximum of 10% Reservation for Economically Weaker Sections (EWSs). |
| 104th Constitutional amendment (2020) | Extended the reservation of seats for SCs and STs in the Lok Sabha and states assemblies. Removed the reserved seats for the Anglo-Indian community in the Lok Sabha and state assemblies. |
| 105th Constitutional amendment (2021) | Restored the power of the state governments to identify Other Backward Classes (OBCs) that are socially and educationally backward. Annulled SC judgement of 11 May 2021, which had empowered only the Central government for such identification. |
Chapter 11 : BASIC STRUCTURE OF THE INDIAN CONSTITUTION
CHAPTER 11
Basic Structure of the Indian Constitution
INTRODUCTION
• Article 368 gives Parliament the power to amend the constitution.
• But certain essential features of the constitution cannot be amended by Parliament. These features form part of the basic structure of the Indian constitution.
• Basic Structure cannot be amended by Parliament under Article 368.
• Basic structure of Indian constitution is a judicially innovated doctrine + has not been defined by the constitution + is constantly evolving through various judgments.
EVOLUTION OF BASIC STRUCTURE
| SC Judgments/ Amendments | Judgment/ Provision |
|---|---|
| Shankari Prasad case, 1951 | • Parliament under Article 368 has the power to amend any part of the constitution including Fundamental rights. • Article 13: Includes ordinary law and not constitutional amendment. • Amendments abridging FR cannot be void under Article 13. |
| Golakh Nath Case, 1967 | • Sacrosanct nature of FR: Transcendental and immutable. • Parliament cannot take away any FR. • Constitutional amendment: Law under Article 13 • Amendment violating FR void under provision of Article 13 |
| Parliament response: 24th Constitutional amendment | • Parliament can take away any FR under Article 368 and such acts are not laws under Article 13. |
| Kesavananda Bharati Case 1973 | • Overruled its Judgment in the Golakh Nath Case, 1967 • Supreme court laid down the ‘Basic Structure Doctrine’ • Parliament cannot take away the Basic structure of the constitution. • FR which form part of Basic structure cannot be taken away by the Parliament. |
| 39th Constitutional Amendment 1975 | • Kept election disputes of President + Vice President + PM + Speaker of Lok Sabha beyond the scrutiny of the courts |
| Indira Gandhi Case 1975 | • Invalidated 39th Amendment. Provision beyond the amending power of Parliament Impacted basic structure of the constitution. |
| 42nd Constitutional Amendment, (1976) | • Amended Article 368. • No limitation on constituent power of parliament • No amendment can be questioned in courts. |
| Minerva Mills Case 1980 | • Limited amending power basic feature of Indian Constitution. • Added 2 features to the list of ‘basic structure’-Judicial review + Balance between Fundamental Rights and DPSP. |
| Waman Rao case | • SC: ‘Basic structure doctrine’ would apply to constitutional amendments enacted after April 24, 1973. |
PRESENT STATUS
• Supreme Court hasn’t clearly defined or clarified as to what constitutes the ‘basic structure’ of the Constitution. (It is an evolving doctrine)
• From various judgements – ‘basic features’ of the Constitution or elements of the ‘basic structure’ have emerged –
♦ Supremacy of the Constitution
♦ Sovereign, democratic and republican nature of the Indian polity
♦ Secular character of the Constitution
♦ Separation of powers between the legislature, the executive and the judiciary
♦ Federal character of the Constitution
♦ Unity and integrity of the nation
♦ Welfare state (socio-economic justice)
♦ Judicial review
♦ Freedom and dignity of the individual
♦ Parliamentary system
♦ Rule of law
♦ Harmony and balance between Fundamental Rights and Directive Principles
♦ Principle of equality
♦ Free and fair elections
♦ Independence of Judiciary
♦ Limited power of Parliament to amend the Constitution
♦ Effective access to justice
♦ Principles (or essence) underlying fundamental rights
♦ Powers of the Supreme Court under Articles 32, 136, 141 and 142
♦ Powers of the High Courts under Articles 226 and 227.
Chapter 12 : PARLIAMENTARY SYSTEM
CHAPTER 12
Parliamentary system
INTRODUCTION
Constitution makers adopted the Parliamentary system of government, both at the Union and State levels, based on ministerial responsibility to the popular house. In doing so, they preferred ‘responsibility of the executive’ prevalent in British system of government over the US system of ‘stability of the executive’..
COMPARISON BETWEEN PRESIDENTIAL AND PARLIAMENTARY SYSTEM
| Parameters | Presidential | Parliamentary |
|---|---|---|
| Relationship between the Executive and Legislature | Separation of Powers | Fusion of Powers |
| Head of State/ Government | Same person (President) | Different Person Head of State – President Head of Government – PM |
| Term of office | Fixed (Predictable) | Less Predictable |
| Period of Executive Questioning | Irregular (Primarily responsible to the people) | Regular (Primarily responsible to the Parliament) |
| Coalition Government | Less Likely | More likely |
| Examples | USA, Brazil, Russia, Sri Lanka | Britain, Japan, Canada, India |
FEATURES OF PARLIAMENTARY GOVERNMENT
| Feature | Parliamentary system | Comparison with Presidential system |
|---|---|---|
| Nominal & Real Executives: | • Nominal – de jure executive – President • Real – de facto executive – PM • President – Head of State • Prime Minister – Head of Government | • US President: Head of State + Head of Government |
| Majority Party rule | • Political party which secures ‘majority seats’ in the Lok Sabha forms Govt. • Leader of Majority party is appointed as PM by President • Other Ministers are appointed by President on advice of PM. • Coalition – formed when no single party gets majority | • US President elected by an ‘electoral college’ with a ‘fixed tenure’ of four years. |
| Collective Responsibility | • Article 75: Ministers are ‘collectively responsible’ to the Parliament in general and to the Lok Sabha in particular. • Can be removed by passing a no–confidence motion. | • US President + secretaries are not responsible to the Congress. • The members of Cabinet are elected + appointed + removed by the – US President. • President cannot be removed by the Congress except by impeachment. |
| Political Homogeneity | • Usually council of ministers belong to the same political party i.e. they share the same political ideology. • In case of a coalition they are bound by consensus | • Cabinet: Non-elected advisory body. |
Feature | Parliamentary system | Comparison with Presidential system
| Feature | Parliamentary system | Comparison with Presidential system |
|---|---|---|
| Double Membership | • Ministers (i.e. council of Ministers) are members of both legislature and executive. • Minister who is not a member of the parliament for six consecutive months ceases to be a minister. | • Complete separation of power between legislature and executive • President + his secretaries are not members of Congress (US Parliament) |
| Leadership of the Prime Minister | • PM – leader of council of Ministers, Leader of the Parliament, Leader of the party in power. | |
| Dissolution of the Lower house | • By the ‘President’ on ‘recommendation’ of the Prime Minister. | • President cannot dissolve the House of Representatives (Lower House of Congress) |
| Secrecy | • Ministers cannot divulge information which come to them during the course of duty in the house. (Oath of Secrecy) |
MERITS AND DEMERITS OF THE PARLIAMENTARY SYSTEM
| Merits of Parliamentary system | Demerits of Parliamentary system |
|---|---|
| • Harmony between legislature and executive: Executive → Part of Legislature → There is Interdependence + Cooperation b/w two organs → Less dispute and conflicts b/w legislature and executive. • Responsible Government: Ministers responsible to Parliament. Parliamentary tools to control executive – question hour, discussions, debates, adjournment motion, no confidence motion. • Prevents despotism: Dispersal of Authority – Executive power vested in the Council of Ministers (not one person). Executive responsibility to Parliament – can be removed no – confidence motion. • Ready alternative govt: Opposition provides ready alternative if ruling party loses majority. • Wide representation: All sections + regions are represented. | • Unstable Government: It can lose majority due to no confidence motion, political defection or breakdown coalition. • No Continuity in policies: Change in government brings change in policies. Uncertainty of tenure adversely impacts policy continuity and may result in policy paralysis. • Dictatorship of cabinet: In case of majority in the Parliament – Cabinet may becomes autocratic. • Govt by amateurs: Ministers – Lack expertise which leads to less administrative efficiency. Ministers only from Parliament PM cannot select outside experts. |
In India, we adopted ‘Parliamentary system’ because of Familiarity with the system, Preference to more responsibility, to avoid legislative – executive conflict, and heterogeneous nature of Indian society.
COMPARISON OF INDIA AND BRITISH MODEL OF PARLIAMENTARY GOVERNMENT
| Comparison | Indian Parliamentary Government | British Parliamentary Government |
|---|---|---|
| Type | Republican system – Head of state is elected (President) | Monarchial system – Head of state is hereditary (King or Queen) |
| Parliament sovereignty | Does not exist – Parliament powers are restricted (constitution, judiciary etc.) | Parliament is ‘sovereign.’ |
| Prime Minister | Can be a member of any house (Lok Sabha or Rajya Sabha) | PM has to belong to the lower house. |
| Ministers(CoM) | Individual who is not a member of either house can be appointed. | Members of Parliament alone are appointed as Ministers. |
| Legal Responsibility of Minister | Does not exist. No need to countersign the official acts of head of state. | Legal Responsibility of the Minister exists. |
| Shadow Cabinet | No | Yes |
| Name | Lower House (Lok Sabha) Upper House (Rajya Sabha) | Lower House (House of commons) Upper House (House of Lords) |
Chapter 13 : FEDERAL SYSTEM
CHAPTER 13
Federal System
INTRODUCTION
Indian constitution presents a remarkable blend of federal and unitary features. Under normal circumstances, States enjoy autonomy in their respective spheres of power. However, Union becomes all powerful during times of emergency. This is why Dr. B. R. Ambedkar said that , “Indian Constitution could be both unitary and federal according to the requirements of time and circumstances”.
COMPARISON BETWEEN UNITARY AND FEDERAL GOVERNMENT
| Comparison | Federal Government | Unitary Government |
|---|---|---|
| Government | Dual Government – National and Regional Government | Single Government – National Government – It will create Regional Government |
| Type of Constitution | Written constitution | May be written or Unwritten Written – France Unwritten – Britain |
| Division of Powers | Exists (b/w national and Regional Govt.) | No division of Powers (All power in hands of national govt) |
| Supremacy of the constitution | Yes – Constitution is Supreme | May be supreme (Japan) May not be Supreme (Britain) |
| Rigidity of Constitution | Yes – Constitution of Rigid | May be rigid (France) May be flexible (Britain) |
| Position of Judiciary | Independent Judiciary | May be Independent May not be Independent |
| Type of Legislature | Bicameral legislature | Both Bicameral (Britain) or Unicameral (China) |
Formation of a Federation
A federation can be formed in 2 ways:
• By Integration: Number of States come together to form a Union
• Example: USA (United States of America)
• By disintegration – Unitary state is converted into a ‘federation’ by granting ‘autonomy’ to the provinces (to promote regional interest).
• Example – Canada (10 provinces) Formation – 1867
FEDERALISM IN INDIA
India has been described as a ‘quasi – federal’ state i.e.distribution of powers between the Centre and the States is not equal. India is a federation with a unitary bias and possesses a strong central machinery. Below we will study the provisions related to federalism in India.
Parameters | Related Details
| Parameters | Related Details |
|---|---|
| Reasons for adoption | • Large Size of the Country: Federal system efficient governance in the country. • Socio – cultural diversity: Federal system reconcile national unity with regional diversity |
| Constitutional Provision | • Term ‘federation’ has ‘nowhere’ been used in the Constitution. |
| Article | • ‘Article 1’ of the constitution describes India as a ‘Union of States’. |
| Union of States (Implication) | • Indian federation is ‘not’ the result of an agreement among the states. • Indian states have ‘no’ right to secede from the federation. |
| Inspiration | • Based on the Canadian model – Formation by disintegration + Using term ‘union’ + Centralizing tendencies. |
FEDERAL FEATURES OF THE INDIAN CONSTITUTION
| Federal features of the Indian constitution | Unitary features of the Indian constitution |
|---|---|
| • Dual Polity: Under the seventh schedule both centre and states have been given sovereign power in their respective spheres. • Written Constitution: Indian constitution is very lengthy. There are about 470 articles, 25 parts and 12 schedules in the constitution. • Division of Powers: The seventh schedule contains union list (100 items), state list (61 items) and concurrent list (52 items). In case of concurrent list both centre and state can make laws (however in case of conflict centre law prevails). The power in relation to residuary subjects lies with the centre. • Supremacy of the constitution: Enacted laws enacted must conform to the provisions of the constitution. • Rigidity of the constitution: For amendment of federal provisions in the constitution special majority of the Parliament and approval of half the state legislatures is needed. • Independent Judiciary: To protect supremacy of the Constitution + Settle disputes – Centre – states or between the states • Bicameralism – Lok Sabha – House of the People Rajya Sabha – Helps to maintain federal equilibrium by protecting interests of the States. | • Strong centre: Division of power at the centre → Union list has more number of items than the state list + More important subjects form part of the union list + Centre has overriding authority over states in case of concurrent list + Residuary power lies with the centre • Indian Federation is “an indestructible Union of destructible states”. Indian states have no territorial integrity + Parliament has unilateral power to change the area + boundaries + name of any state (by Simple majority). • Single constitution for both centre and States • Single citizenship • Less rigid nature of Indian constitution i.e. many portions of constitution can be amended by unilateral action • Emergency → Federal structure turns into a unitary one. • All-India Services: Exist for both centre and states. However, the ultimate control lies with the centre. • Integrated Audit Machinery – CAG of Indian audits the accounts of both centre and states but the power of appointment and removal lies with the President. • Parliament → empowered to legislate on any subject of the State List if Rajya Sabha passes a resolution • Governor is appointed by the President + Holds office during the Pleasure of the President + considered as Agent of the centre. • Integrated Election Machinery – CAG of Indian audits the accounts of both centre and states but the power of appointment and removal lies with the President. • Veto over State bills: Governor holds the discretion to reserve a bill passed by State legislature for the consideration of the President who holds absolute veto power over the bill. |
Chapter 14 : CENTRAL STATE RELATIONSHIP
CHAPTER 14
Central State relationship
• Indian constitution is federal in structure
• Division of legislative, executive and financial powers between the Centre and the states exists.
• Exception – Judicial power (no division) – Integrated Judiciary in India
LEGISLATIVE RELATIONS
Territorial extent of Union and State Legislature
• Territory of India: States + UT’s + any other area included in the territory of India.
• Parliament → Power to make laws for part or whole of India.
• Laws of Parliament are applicable to Indian citizens and their property in ‘any part of the world’.
• State Legislature → Power to make laws for whole or part of the state.
• Extra – Territorial legislation: Power lies with Parliament.
Restrictions on territorial Jurisdiction of Indian Parliament
• Union Territories: President can make regulation for four Union Territories (not all). These include Andaman and Nicobar islands + Lakshadweep + Dadra and Nagar Haveli and Daman and Diu + Ladakh.
♦ President Regulation: Has the ‘same’ force and effect as an act of Parliament.
♦ Regulation can ‘repeal’ or ‘amend’ any act of Parliament → related to 4 UT’s given above.
• Scheduled Areas: Governor can direct that an act of Parliament ‘does not’ apply to a scheduled area or applies with certain changes. Similar power lies with Governor of Assam in relation to tribal Areas in Assam (Autonomous districts).
• Tribal areas: ‘President’ of India can direct that an act of Parliament ‘does not’ apply to a tribal area in the state of Mizoram, Meghalaya and Tripura (Autonomous districts) or applies with changes.
Distribution of Legislative subjects
Division in the 7th schedule
• Union List: Parliament holds exclusive power to make laws. Total – 100 Subjects
• State List: State legislature makes laws (In normal circumstances). Total – 61 subjects.
• Concurrent List: Both Centre + State can make laws. Total – 52 subjects.
• Residuary powers: Not mentioned in any list. Parliament has exclusive power to make any law.
• Dominance of list: Union List > State list, Union list > Concurrent list, Concurrent list > State list.
• Exception: State law reserved for the consideration of the president + received assent. State law prevails (in that state). Parliament can override this by making a new law.
Parliamentary legislation in state field
| Article | Parliamentary legislation | Process | Other Facts | Status of laws made |
|---|---|---|---|---|
| Art. 249 | If ‘Rajya Sabha’ resolution says it is necessary in the ‘national interest’ | Resolution must be supported by 2/3rd of the members present and voting | Resolution remains in force for one year + can be renewed any number of times + Renewal not more than for a year. State Leg. can make laws | Parliament laws cease to be inforce 6 months after resolution expires. In case of inconsistency Parliamentary law prevails. |
| Article | Parliamentary legislation | Process | Other Facts | Status of laws made |
|---|---|---|---|---|
| Art. 250 | During National emergency | Parliamentary laws remain inforce ‘6 months’ after expiry of emergency. In case of inconsistency Parliament law prevails. | ||
| Art. 252 | States make a request | Two or more State Legislature pass a resolution. | Other state can adopt → by passing the resolution in their respective state legislature | Laws apply to ‘only’ to those states which passed the resolution + can be amended or repealed ‘only’ by the Parliament |
| Art 253 | To implement an international treaty | |||
| Art. 356 | President’s Rule is imposed | Impact only the state where President Rule is imposed | Laws continue to remain in operation even after the president’s rule. Can be repealed/altered/reenacted by the State Legislature |
President’s Rule
• Parliament → Makes laws → For Matters in State List → only for States under President Rule.
• Status of laws → ‘continue’ to remain in operation even after President’s rule.
• Laws can be repealed/altered/reenacted by the State Legislature.
Centre control over state Legislature
• Reservation of certain bill by the Governor → President’s consideration → President holds ‘absolute veto’ over such bills.
• Mandatory to take prior sanction of the President to introduce certain Bills in state legislature on matters in the ‘State List’. For example; a bill imposing restrictions on the freedom of trade and commerce.
• Financial emergency → Centre can direct the states to reserve money bills + other financial bills for consideration of President.
ADMINISTRATIVE RELATIONS
• Constitutional provision: Article – 256 to 263 (Part XI)
Distribution of executive power
• Division of ‘Executive power’: Co – extensive with legislative powers.
• Centre Executive power: Union list, International Treaty/agreement
• State Executive power: State list + Concurrent list (Even if law is made by Parliament).
• Exception: Power is given to Centre by a constitutional provision/ parliamentary law.
State executive power
• Needs to comply with ‘parliamentary laws’ + not override ‘executive power’ of the centre.
• Centre can give directions to the States on exercising their executive power → State does not follow these directions → President rule can be imposed.
• The Executive power of the state extends to the following matters, if directed as such by Centre.
♦ Maintain Communication System (declared of national or International importance)
♦ Protection of Railways in the State
♦ Providing facility for instruction in mother tongue to ‘linguistic minorities’ till primary stage.
♦ Scheme for the welfare of the Scheduled Tribes in the state.
Mutual delegation of Executive Functions
• Article 258: President can request Governor for use of state machinery. State consent is mandatory.
• Article 258 A: Governor can request President for use of central executive machinery. Union consent is mandatory.
• Parliament by law can entrust executive power of the Centre to the States, without the consent of the state.
Cooperation between Centre and State
• Parliament can make a law for adjudication of Interstate River Dispute (Article 262).
• President can establish an Inter-State Council to investigate and discuss subject of common interest b/w Centre and States (Article 263).
• Full faith and Credit clause: States and Centre shall respect each other’s public acts, records and Judicial proceedings.
• Parliament can appoint authority to carry constitutional provisions relating to Inter state trade, commerce and intercourse.
All India services
• Art 312: Parliament can create new All India service on the Rajya Sabha resolution.
• Jointly controlled by Centre (ultimate control for example Centre can remove officials of All India Services) + States (Immediate control for example States have the power to suspend the officials).
Public Service commission
• State public service commission: Appointment → Governor, Removal → President
• ‘Parliament’ can create a Joint Public service commission (on request of 2 or more states).
• UPSC can ‘serve’ states → On request of Governor, President approval.
• UPSC can ‘assist’ states with regards to Joint recruitment (on request of 2 or more states).
Integrated Judicial system
• Single system of courts enforces both central and state laws.
Emergency
| Types of Emergency | Provisions under Emergency |
|---|---|
| National Emergency (Art. 352) | Centre becomes entitled to give executive directions to a state on ‘any’ matter + State Government → not suspended but come under complete control of Centre. |
| President Rule (Art. 356) | President can vest in himself the executive powers of the state. |
| Financial Emergency (Art 360) | Centre can direct the states to observe canons of financial propriety. |
Other Provisions
• Article 355: Duties of the Centre include 1) Protect every state against ‘external aggression’ + ‘internal disturbance’. Ensure that Government of every state is carried according to provisions of the Constitution.
• Governor: Appointed by President + Tenure (Pleasure of President) + Agent of the Centre’ in state
• State Election commission: Appointment: Governor + Removal: President
Extra constitutional devices
• NITI Aayog + National Integration Council + Zonal Councils + North-Eastern Council
FINANCIAL RELATIONS
• Constitutional articles: Article 268 – 293 (Part XII)
Allocation of Taxation powers
| List | Taxation Power |
|---|---|
| Union list | Parliament (Total 13 + More remunerative) |
| State list | State Legislature (Total 18 + Less remunerative) |
| Concurrent list | No Tax legislation is present. Exception was made by the 101st amendment which provided a special provision for GST i.e. it gave concurrent power to Parliament and State legislature to make laws governing GST. |
| Residuary power | Union |
Distribution of Tax Revenues
Two amendments had a major impact:
• 80th Amendment act 2000: Implemented the recommendations of the 10th finance commission. Corporate Tax and Customs duty had to be shared with the states.
• 101st amendment act: Good and Services Tax (GST) was implemented. Concurrent Taxing power to Parliament and State Legislatures to make laws for levying GST + ‘Replaced’ number of ‘Indirect taxes’ levied by both Union and States + Article 268 A – Dealing with ‘Service tax’ was deleted.
Present Situation with regards to distribution of Tax revenues –
| Article | Levy | Collect | Assigned | Example |
|---|---|---|---|---|
| 268 | Centre | States | States | Stamp duties on bills of exchange, Promissory notes etc. (Not part of CFI) |
| 269 | Centre | Centre | States | Taxes on interstate trade and commerce. (Not part of the CFI) |
| 269 A | Centre | Centre | Divided b/w centre and State | GST in course of Inter- State trade and commerce. Parliament → Determines Tax division b/w centre and State (GST council recommends), Principles of supply during Inter state trade. |
| 270 | Centre | Centre | Divided b/w Centre and States | All taxes in the Union list – Exception – (Taxes under Article 268,269, 269 A, Surcharge on taxes under 271 Cess for specific purpose) . Distribution as prescribed by President (Finance commission recommends) |
| 271 | Centre | Centre | Centre | Surcharges on taxes under 269 and 270. Exemption – Remember, GST is exempted from surcharge. |
| State | State | State | State | Taxes belonging to state only – (Total 18) Example – Land Revenue, agricultural income, Professional Tax, Professional Tax |
Distribution of Non-Tax Revenue
• Non-Tax Revenue: It refers to the money government earns through non taxation sources.
♦ Major sources for Centre: Posts and telegraphs, railways, banking, broadcasting, coinage and currency, central public sector enterprises, escheat and lapse etc.
♦ Major sources for State: Irrigation, forests, fisheries, state public sector enterprises, escheat and lapse etc.
Grant – in – Aids to States
• Grant- in- Aid – simply means ‘money’ given by Centre to States in form of assistance.
• Types of Grants – 1) Statutory 2) Discretionary 3) Other Grants
Statutory Grants (Article 275) | Discretionary Grants (Article 282) | Other Grants
| Statutory Grants (Article 275) | Discretionary Grants (Article 282) | Other Grants |
|---|---|---|
| • ‘Parliament’ to make grants to the state which need financial assistance (not every state). • 2 types – General and Specific purpose (To improve Tribals). • ‘Charged’ on the ‘consolidated fund of India. • Given on the recommendation of ‘Finance commission of India’. | • Empowers both Centre and the states to make any grants for any public purpose. • Under this Union allocates grants to the state according to its discretion | • Grants for a temporary period. • Charged on ‘consolidated fund of India’ on the recommendation of ‘finance commission’. • Example – Temporary grants in lieu of export of Jute and Jute based products to Assam, Bihar, West Bengal and Orissa |
Protection of State Interest (financial matters)
• Following bills require Prior recommendation of the President to be introduced:
♦ Bills which deal with → 1) Tax or duty in which state are interested + 2) Change the meaning of expression ‘agricultural income’ + 3) Impact principles of allocation of money to the States + 4) Impose surcharge/tax/duty for the purpose of the Centre.
Borrowing by Centre and the States
• Centre can borrow within India + outside India.
• States can borrow within territory of India. (Limits – Set by State legislature).
• Centre can give loans/guarantee for loans raised by the State. (charged on CFI).
• Article 293(3): State needs to take ‘prior permission’ of the Centre to borrow if they have outstanding liabilities to the Centre.
Inter – Governmental Tax immunity
• Centre cannot tax state property and vice versa.
• Exceptions – (where immunity does not apply):
♦ Corporations or companies of state and central Government.
♦ Property and Income of local authority.
♦ Custom duties can be imposed on good/services of the state.
♦ Excise duty can be imposed on good of the state.
IMPORTANT COMMITTEES ON CENTRE – STATE RELATIONS
| By Centre | By States |
|---|---|
| Administrative Reforms commission | Rajamannar committee (1969) – TN |
| Sarkaria commission (1983) | Anandpur Sahib Resolution (1973) |
| Punchhi commission (2007) | West Bengal memorandum (1977) |
Chapter 15 : INTER STATE RELATIONS
CHAPTER 15
Inter State Relations
The Constitution makes the following provisions with regard to inter-state comity:
• Adjudication of inter-state water disputes.
• Coordination through inter-state councils.
• Mutual recognition of public acts, records and judicial proceedings.
• Freedom of inter-state trade, commerce and intercourse.
INTER-STATE WATER DISPUTES
Article 262 makes two provisions:
• Parliament may by law provide for the adjudication of any dispute or complaint related to any inter-state river and river valley.
• Parliament may provide that neither the Supreme Court nor any other court is to exercise jurisdiction in respect of any such dispute or complaint.
Two laws enacted by Parliament
• The River Boards Act (1956)
♦ For Establishment of river boards by the Central government
♦ On the request of the state governments concerned
♦ To advise them for the regulation and development of inter-state river and river valleys
• The Inter-State Water Disputes Act (1956)
♦ Empowers the Central government to set up an ad hoc tribunal
♦ For the adjudication of a dispute between two or more states in relation to the waters of an inter-state river or river valley.
♦ Decision of the tribunal would be final and binding.
♦ Neither the Supreme Court nor any other court is to have jurisdiction in respect of any water dispute which may be referred to such a tribunal under this Act.
Inter-State Water Dispute Tribunals Set-up So Far
| S.No. | Name | Year of Set-up | States Involved |
|---|---|---|---|
| 1 | Krishna Water Disputes Tribunal-I | 1969 | Maharashtra, Karnataka and Andhra Pradesh |
| 2 | Godavari Water Disputes Tribunal | 1969 | Maharashtra, Karnataka, Andhra Pradesh, Madhya Pradesh and Odisha |
| 3 | Narmada Water Disputes Tribunal | 1969 | Rajasthan, Gujarat, Madhya Pradesh and Maharashtra |
| 4 | Ravi and Beas Water Disputes Tribunal | 1986 | Punjab, Haryana and Rajasthan |
| 5 | Cauvery Water Disputes Tribunal | 1990 | Karnataka, Kerala, Tamil Nadu and Puducherry |
| 6 | Krishna Water Disputes Tribunal-II | 2004 | Maharashtra, Karnataka and Andhra Pradesh |
| 7 | Vansadhara Water Disputes Tribunal | 2010 | Odisha and Andhra Pradesh |
| 8 | Mahadayi Water Disputes Tribunal | 2010 | Goa, Karnataka and Maharashtra |
| 9 | Mahanadi Water Disputes Tribunal | 2018 | Odisha and Chhattisgarh |
INTER-STATE COUNCILS
• Article 263: Establishment of an Inter-State Council
• President can establish such a council
♦ If & when it appears to him that the public interest would be served.
♦ It can define the nature of duties, organisation and procedure of council
Duties of Inter-State Council under Article 263
• Enquiring into and advising upon disputes which may arise between states;
• Investigating and discussing subjects in which the states or the Centre and the states have a common interest; and
• Making recommendations for the better coordination of policy and action on it.
Councils made By President under Article 263
• Central Council of Health and Family Welfare.
• Central Council of Local Government
• Four Regional Councils for Sales Tax for the Northern, Eastern, Western and Southern Zones.
Establishment of Inter-State Council
• Sarkaria Commission recommended the establishment of a permanent Intergovernmental Council under Art 263.
• V. P. Singh led Janata Dal established the Inter-State Council in 1990.
Members:
• Prime minister (Chairman)
• Chief ministers of all the states
• Chief ministers/Administrators of union territories
• Governors of States under President’s rule
• Home Minister + 5 more Central cabinet ministers nominated by the PM.
• Five Ministers of Cabinet rank / Minister of State (independent charge) nominated by PM (permanent invitees to the Council)
Functions:
• Recommendatory body on issues relating to interstate, Centre-state and Centre-union territories relations.
• May meet at least thrice in a year. Only 11 meetings have been held till date.
• Meetings are held in camera
• All questions are decided by consensus.
Standing Committee of the Council.
• Set up in 1996 for continuous consultation and processing of matters for the consideration of the Council.
• Members
♦ Union Home Minister (Chairman)
♦ Five Union Cabinet Ministers
♦ Nine Chief Ministers
• Assisted by a secretariat called the Inter-State Council Secretariat.
♦ Secretariat was set-up in 1991
♦ Headed by a secretary to the Government of India.
♦ Since 2011, it has also been functioning as the secretariat of the Zonal Councils.
PUBLIC ACTS, RECORDS AND JUDICIAL PROCEEDINGS
• Under the Constitution, the jurisdiction of each state is confined to its own territory. Hence, it is possible that the acts and records of one state may not be recognised in another state. To remove any such difficulty, the Constitution contains the “Full Faith and Credit” clause which lays down the following:
• Full faith and credit is to be given throughout the territory of India to public acts, records and judicial proceedings of the Centre and every state.
• “Public Acts” = Legislative + Executive Acts of the government.
• “Public Record” = Any official book + Register/record made by a public servant in the discharge of his official duties is subject to the power of Parliament.
• Final judgements and orders of civil courts in any part of India are capable of execution anywhere within India.
• Rule applies only to civil judgements and not to criminal judgements.
INTER-STATE TRADE AND COMMERCE
• Articles 301 to 307 in Part XIII of the Constitution deal with the trade, commerce and intercourse within the territory of India.
• Article 301: Trade, commerce and intercourse throughout the territory of India shall be free.
♦ Objective: To break down the border barriers between the states and encourage the free flow of trade, commerce and intercourse in the country.
♦ Provision is not only confined to the interstate but also extends to intra-state trade, commerce and intercourse.
• Restrictions to Article 301
♦ Article 302: Power of Parliament to impose restrictions on trade, commerce and intercourse
♦ Article 303: Restrictions on the legislative powers of the Union and of the states with regard to trade and commerce
♦ Article 304: Restrictions on trade, commerce and intercourse among states
♦ Article305: Saving of existing laws and laws providing for state monopolies
♦ Article 307: Parliament can appoint an authority for carrying out the purposes of Articles 301 to 304.
♦ No such authority has been appointed so far.
ZONAL COUNCIL
• Statutory Body
• Established by States Reorganisation Act of 1956.
♦ Act provided five zonal councils Northern, Central, Eastern, Western and Southern.
Factors taken into account while forming these zones
Natural divisions of the country,
River systems and means of communication,
Cultural and linguistic affinity and
Requirements of economic development, security and law and order.
Members of Each Zonal Council
Home minister of the Central government (Common chairman of the five zonal councils)
Chief ministers of all the States in the zone. (Rotation of CMs as a vice-chairman of the council, Tenure one year at a time)
Two other ministers from each state in the zone.
Administrator of each union territory in the zone.
Advisors of zonal council (Optional, No right to vote in the meetings):
A person nominated by the Planning Commission;
Chief secretary of the government of each state in the zone; and
Development commissioner of each state in the zone.
The objectives of the zonal councils:
• Achieve emotional integration of the country & help in arresting the growth of separatist trends on the basis of state, language etc.
• To help in removing the after-effects of separation & promote the process of reorganisation, integration and economic advancement.
• To enable the cooperation between Centre and states in social and economic matters, help in evolving uniform policies and speedy execution of major development projects.
• To secure political equilibrium between different regions of the country.
Zonal Councils
| S.No. | Name | Members | Headquarters |
|---|---|---|---|
| 1 | Northern Zonal Council | Himachal Pradesh, Haryana, Punjab, Rajasthan, Delhi, Chandigarh, Jammu and Kashmir and Ladakh | New Delhi |
| 2 | Central Zonal Council | Uttar Pradesh, Uttarakhand, Chhattisgarh, and Madhya Pradesh | Allahabad |
| 3 | Eastern Zonal Council | Bihar, Jharkhand, West Bengal and Odisha | Kolkata |
| 4 | Western Zonal Council | Gujarat, Maharashtra, Goa, Dadra and Nagar Haveli and Daman and Diu | Mumbai |
| 5 | Southern Zonal Council | Andhra Pradesh, Telangana, Karnataka, Tamil Nadu, Kerala and Puducherry | Chennai |
North-Eastern Council
• Created by the North-Eastern Council Act of 1971.
• Members: Assam, Manipur, Mizoram, Arunachal Pradesh, Nagaland, Meghalaya, Tripura and Sikkim.
• Special responsibilities to make a regional plan and maintenance of security and Public order in the region.
• Rest of the functions are similar to those of the zonal councils.
Chapter 16 : EMERGENCY PROVISIONS
CHAPTER 16
Emergency provisions
• Constitutional provision: Article 352 to 360 (Part XVIII)
• Objective: Enable Central Government to meet abnormal situation effectively.
• Impact: It turns the federal structure into a unitary one.
• Types of Emergencies – 3 types 1) National Emergency (Article 352) 2) President Rule (Article 356) 3) Financial Emergency (Article 360)
• Borrowed: From Weimar Constitution (Germany)
• Declarations: 1962, 1971 and 1975 (internal disturbance).
• Shah commission: to investigate on emergency in 1975.
ARTICLE 352: NATIONAL EMERGENCY
| Parameter | Related Facts |
|---|---|
| Grounds of declaration | When security of India (or part of it) is threatened by – 1) War or 2) External aggression or 3) Armed rebellion. |
| Declaration | By the President Can be done even in case of ‘imminent danger’ i.e. if there is a threat of war, external aggression or armed rebellion. |
| Types | National Emergency – 1) External emergency 2) Internal Emergency External Emergency: When declared on the ground of ‘war’ or ‘external aggression’ Internal emergency: When it is declared on the ground of ‘armed rebellion’ |
| Amendments | 38th amendment act – Empowered ‘President’ to declare different proclamations of national emergency on different grounds simultaneously. 42nd amendment act – Enabled President to ‘limit’ the operation of National Emergency to a specified part of India. 44th amendment act – It made a number of changes as follows: • Substituted the words ‘armed rebellion’ instead of ‘internal disturbance’ as grounds of declaration. • Declaration of emergency can ‘only’ be made by the President on receiving a ‘written recommendation from the cabinet’. |
| Judicial review | National emergency is subject to Judicial review (44th amendment + Minerva Mills case) |
| Parliamentary Approval | Must be approved by ‘both’ houses of Parliament within 1 month (44th CA) Special Majority is needed for approval or continuance of Emergency (44th CA) Special majority: Majority of total membership + 2/3rd members present and voting |
| Dissolution of Lok Sabha | In case of dissolution of LS in one month in which emergency would be approved- Proclamation remains for 30 days after 1st sitting of LS (new) + RS should approve in the meantime. |
| Duration | After approval by both houses emergency continues for 6 months It can be extended for an ‘Indefinite period’. (Needs to be approved by Parliament every 6 month – Added by 44th CA). Special Majority is needed for continuance of emergency. |
Parameter | Related Facts
| Parameter | Related Facts |
|---|---|
| Revocation of National emergency | By ‘President’ or Lok Sabha by ‘simple majority’. President can revoke by proclamation. Does not need Parliamentary approval. Lok Sabha → 1/10th of total members of LS → ‘written notice’ → Speaker/President → Special session to discontinue emergency (within 14 days) Resolution needs ‘Simple Majority’ to be passed. |
Effects of National Emergency
Impact of Emergency | Related Details
| Impact of Emergency | Related Details |
|---|---|
| Executive relations b/w centre – state | • Centre can give direction to states on ‘any’ matter • In normal circumstances – directions on specified matter • State Government – Not suspended, Under control of the centre. |
| Legislative relations b/w centre – state | • Parliament → empowered to make laws on subjects in State List. • Duration of Parliamentary laws → Inoperative 6 months after end of emergency. • Ordinance → Can be issued on state subjects by President. • Parliament → Impose powers + Duties on Centre → Regards to matter outside Union list. • State Legislature → Not suspended (but constitution becomes unitary). |
| Financial relations b/w centre – state | • President can change ‘constitutional distribution of revenues’ between Centre and state. • Meaning: President can reduce/cancel the transfer of finances from Centre to states. • Duration: Modification continues till the end of the ‘financial year’ in which Emergency ends. • Requirement: Every order made by President should be laid before ‘both houses of Parliament’. |
| Duration of Lok Sabha/ State Legislative relations | • Life of Lok Sabha + Legislative Assembly can be extended by one year at a time by Law of Parliament. Can be extended by one year in definite number of times. • Post emergency → can be extended for only 6 months |
| Effect on the Fundamental Rights | • Article 358: Suspension of the Fundamental Rights under Article 19 • Article 359: Suspension of other Fundamental Rights (except Article 20 and 21). |
Article 358
• National emergency declared → Article 19 gets automatic suspension.
• Suspension only when national emergency is declared on the ground of war or external aggression (not armed rebellion)
• National emergency ends → Article 19 automatically revives
• National emergency ends → Laws inconsistent with Article 19 cease to have effect.
• ‘Executive + Legislative action’ inconsistent with Article 19 → cannot be challenged in courts. (during Emergency + after emergency ends).
• 44th amendment: ‘Only’ acts/action related to emergency can’t be challenged.
Article 359
• Suspension of other Fundamental Rights
• Empowers President → suspend “enforcement” of any specified FR
• 44th amendment → Article 20 and 21 cannot be suspended
• FR are not suspended only their enforcement (Right to move to court)
• Procedure → President order (mention FR whose enforcement is suspended → Laid before both houses for approval. Order can be for entire emergency or shorter period, for whole or part of India.
• National emergency ends → Laws inconsistent with FR cease to have effect
• Executive + Legislative action inconsistent with FR → cannot be challenged in courts. (during Emergency + after emergency ends).
• 44th amendment: ‘Only’ acts/action related to emergency can’t be challenged.
Comparison table – Article 358 vs Article 359
| Comparison | Article 358 | Article 359 |
|---|---|---|
| Fundamental Rights | Deals with FR’s under Article 19 | Deals with FR’s whose enforcement has been suspended by Presidential order |
Here is the extracted text exactly as it appears, with bullets and tables preserved:
56 Indian Polity: Static Revision Simplified
Comparison
| Comparison | Article 358 | Article 359 |
|---|---|---|
| Nature | Automatic suspension after National emergency is declared. | No automatic suspension only empowers the President to suspend enforcement of specified FR’s |
| Extent | Entire country | Entire country or part of it |
| Suspension | Article 19 completely suspended | Article 20 and 21 enforcement cannot be suspended by the President. |
PRESIDENT RULE
Parameters | Related Facts
| Parameters | Related Facts |
|---|---|
| Grounds of Imposition | • Constitutional provision: Article 355, Article 356, Article 365 • Article 355: Duty of the Centre to ensure that the government of every state is carried on in accordance with the ‘provisions of the Constitution’. • Article 356: Centre takes over the government of a state under Article 356 in case of failure of ‘constitutional machinery’ in state. • Article 356: President can issue a proclamation that government of state cannot be carried in accordance with the ‘provisions of the constitution’. + can act with or without Governor report. • Article 365: Failure of state government to comply with the directions of the Centre → President can hold that State government cannot be carried in accordance with the ‘provisions of the constitution’ → President’s Rule |
| Approval | • Must be approved by both houses of Parliament within two months • Needs to be passed with simple majority i.e. Majority of the members of the house present and voting. |
| Duration | After approval by both houses’ emergency continues for six months. It can be extended for a maximum period of three years (Parliament approval every 6 months). To extend President rule beyond a year → Condition need to be fulfilled (44th CA) • National Emergency should be in operation in the whole/part of India, or in whole/part of the state. • Election Commission must certify that the general elections to the legislative assembly of the concerned state cannot be held due to difficulties. |
| Dissolution of Lok Sabha | In case of dissolution of Lok Sabha within two months in which emergency would be approved- Proclamation remains for 30 days after 1st sitting of LS (new) + RS should approve in the meantime. |
| Revocation of President’s rule | President proclamation (No Parliamentary approval is needed). |
Consequence of President’s Rule
The major consequence of President rule is that the executive and legislative powers of the state are assumed by the centre. Below we will discuss in detail the consequences of President rule.
Parameters | Related Facts
| Parameters | Related Facts |
|---|---|
| Impact | Executive and Legislative powers of the state are assumed by Centre |
| State Executive | Dismissed |
| State Legislature | Either suspended or dissolved |
| Administration of the State | By President through Governor → Governor takes help of the chief secretary of the state or the advisors appointed by the President |
| Law making | Done by Parliament |
| Delegation of Law-making powers | Parliament can delegate the law-making powers to the President or his specified authority. Such laws are known as President’s Act President makes these laws in consultation with MPs of that state. |
| Ordinances | President issues ordinances on subjects in state list |
| Fundamental Rights | No impact on Fundamental Rights |
| Power/duties on centre | President (or any authority specified by him) can make laws to confer power/duties on the centre. |
Parameters | Related Facts
| Parameters | Related Facts |
|---|---|
| Status of laws made by Parliament | Continue to operate even after the end of President’s rule. (State legislature can later repeal/amend/re-enact it) |
| State High court | Provisions related to State High court remain untouched |
Important Judgements
SR Bommai case, 1994
• President Rule is subject to Judicial review.
• President satisfaction should be based on relevant material (It shall not be based on malafide, perverse, irrelevant or extraneous conditions.)
• Court cannot investigate correctness of material.
• Burden lies on centre to prove relevant material exists.
• Till Parliament approval, Legislative Assembly is suspended not dissolved.
• Courts can restore and revive the government and Assembly, if proclamation is unconstitutional.
• Confidence in state legislative assembly should be tested on ‘floor of the house’.
• State following Anti – secular politics are liable for action under Art 356.
• Case of proper and Improper use of President’ Rule (listed under SR Bommai case based on Sarkaria commission report).
Acceptable Grounds for President Rule
• Hung Assembly: No party secures majority after general elections.
• States failure to follow Constitutional direction given by the centre.
• Internal subversion: Deliberate action by state government which are unconstitutional/unlawful and aimed at fomenting a violent revolt
• Physical breakdown: State Government refuses to discharge its constitutional obligation endangering the security of the state.
• Failure to form ministry: Majority party refuses – no alternate coalition exists; Ministry resigns after it defeat in assembly and no alternate is present.
Unacceptable grounds
• President Rule is imposed without looking for an alternative ministry (after Ministry resigns or loses majority support).
• Governor does not give chance to the ministry to prove its majority on the floor of the house and recommends President’s rule (based on his assessment of Ministry’s support in the assembly).
• Internal disturbances not amounting to internal subversion or physical breakdown.
• Mal-administration or allegations of corruption.
• No prior warning for rectification was given.
• If used to settle intra-party disputes.
FINANCIAL EMERGENCY
Parameter | Related Facts
| Parameter | Related Facts |
|---|---|
| Constitutional provision | Article 360 |
| Parliamentary approval | Must be approved by both houses of Parliament within 2 months By Simple majority |
| Duration | After approval by both houses of Parliament emergency continues ‘indefinitely’ No maximum period prescribed for its operation Repeated Parliamentary approval is not needed |
Parameter | Related Facts
| Parameter | Related Facts |
|---|---|
| Revocation of financial emergency | By President proclamation anytime |
| Impact of Financial Emergency | Executive authority of the Centre – 1) Give directions to state(any) to observe canons of financial propriety 2) Give other directions to states as the President deems necessary and adequate for the purpose. Directions which can be given: Reducing salaries and allowances of persons serving in the state 2) Reserve money bills or other financial bills for the consideration of the President. President ‘may’ also issue directions for reducing salary + allowances of 1) All persons serving the union 2) Judges of Supreme court and High court |
COMPARISON AMONG DIFFERENT TYPES OF EMERGENCIES
| Parameters | Article 352 (National emergency) | Article 356 (President rule) | Article 360 (Financial emergency) |
|---|---|---|---|
| Grounds of declaration | War, external aggression, Armed rebellion or eminent danger thereof | Constitutional machinery breakdown (On report of governor or otherwise.) | Threat to financial stability and credibility |
| Written recommendation of cabinet | Needed | Not needed | Not needed |
| Parliamentary approval | Within 1 month | Within 2 months | Within 2 months |
| Duration | Can be extended to Indefinite period (Parliamentary approval every 6 months) | Maximum duration – 3 years. Periodical approval is needed every 6 months. Beyond a year: National emergency or EC certification | Indefinite period. No intermittent approval is needed. |
| Majority for approval and revision | Special majority | Simple majority | Simple Majority |
| Revocation | President or by Lok Sabha with simple majority. | President | President |
| Laws on the state subject | State list becomes similar to concurrent list i.e. both Parliament and State legislature can make laws on it. Parliament can make laws on state list but cannot delegate it to other authority. | Parliament make laws on state list and can delegate law making power to President or any other authority specified by him | No laws are enacted on state list |
| Continuation of laws | Do not continue 6 months after revocation. | Will continue and state can amend/ repeal them | No laws are enacted on state list |
| Other Impact | Centre can give direction to states on ‘any’ matter. President can change constitutional distribution of revenues between Centre and state. Life of Loksabha and Legislative Assembly can be extended by one year at a time indefinitely. (post emergency only 6 months) | State executive is dismissed. State legislature can be dissolved or dismissed. Administration is done by President via Governor. Parliament get the power to make laws. | President can give directions for Reduction of salaries (including judges and other constitutional authorities). Reservation of all money bills or financial bills for President consideration. Direction to states to observe canons of financial propriety. |
| Fundamental rights | Are impacted | No impact | No impact |
| Imposition | 3 times – 1962, 1971, 1975 | More than 100 times | Not yet |
Chapter 17 : UNION EXECUTIVE
CHAPTER 17
Union Executive
PRESIDENT
Constitutional provision: Article 52-78, Part V
Composition of Union executive: President + Vice president + PM and council of ministers + Attorney General.
President: Head of State + first citizen of India + Symbol of unity, integrity and solidarity of nation.
Election of the President
| Parameter | Related Details |
|---|---|
| Qualifications of contestant | • Constitutional requirement: 35 years + Indian citizen + Qualified to become Member of Lok Sabha + No office of Profit • Other Requirements: Nomination needs to be subscribed by 50 electors (proposers) + 50 electors (seconders). • Security deposit: Rs.15,000 |
| Election system | • Indirect election • Proportional representation by single transferable vote |
| Voters in election | • Elected MP’s (Lok Sabha + Rajya Sabha) • Elected MLA’s of Legislative Assembly of states + Union Territory of Delhi + Puducherry • Members who don’t participate in the elections include nominated members of Parliament + State Legislative assembly + UT’s with Legislature (Delhi + Puducherry) • Other Facts: Members of dissolved assembly cannot vote in Presidential elections |
| Value of Votes | • Votes of each MLA = Total Population of a state/ Number of Elected MLA’s in Assembly x 1000 • Votes of each MP = Total value of votes of all MLAs of all states/ Total number of elected MPs Important: • Vote of an MLA is not equal to vote of an MP • Vote of all MLA = vote of all MPs |
| Electoral quota | Electoral quota = Total number of valid votes polled ———————————————— +1 1+1 = (2) |
| Disputes related to President election | • Inquired and decided by Supreme court • Acts done by President before election is declared void remain in force. |
| Term and Re – election | • Term: 5 years • Eligible for re-election for any number of times |
Oath, Conditions and Vacancy
Oath
Administered by Chief Justice of India. In his absence the senior most Judge of SC.
To faithfully execute the office.
To preserve, protect and defend constitution and the law.
To devote himself to the service and well – being of the People of India.
Conditions of office
Have been laid down by the constitution.
Should not be a member of either house of Parliament or State legislature. If such a member is elected as President he has to vacate his seat.
Cannot hold any office of Profit
Emoluments + Allowances + Privileges are determined by Parliament. These cannot be diminished during his term of office.
Legal Immunity
No criminal proceedings, during his term of office.
Civil proceedings with 2 months of notice can be initiated only on personal acts.
Vacancy in the President’s Office
Vacancy in President office happens in case tenure ends + Resignation + Impeached + Death + Other reasons (Disqualification).
Expiration of term: Election should be held to fill vacancy before term expires. In case of delay in election the sitting President continues to prevent inter regnum.
In case of vacancy due to resignation + removal + death + other reasons –> Vice President acts as President. In his absence Chief Justice of India (CJI). If CJI is absent the senior most Judge of Supreme court act as President. They serve for maximum period of six months. Within six months elections are to be held for electing the President.
Newly elected president will be in office for full term (5 years).
Resignation of President is submitted to Vice – President.
Impeachment process
| Parameters | Related Facts |
|---|---|
| Grounds | • Constitutional violation (undefined) |
| Initiation of Charges | • Can be done by either House of the Parliament (Lok Sabha or Rajya Sabha) |
| Majority required | • Should be passed with 2/3rd majority of total strength of house independently in LS and RS. |
| Process of Impeachment | • Prior notice of 14 days should be given to President. First house (either LS or RS): • Lays charges and 1/4th members need to support it. • Chairman/ Speaker may or may not admit it. • Needs to be passed with 2/3rd majority of total strength of house. Second house: • Investigates the charges against the President. President holds right to appear + be represented in such investigation. • If the Second house (LS/RS) sustains the charges + passes with 2/3rd majority of total strength of house then President stands impeached. |
| Other Facts | • Impeachment → Quasi – Judicial process • Nominated members → Participate in Impeachment process • Members of State Legislative assemblies → Don’t participate in Impeachment process. • UT’s of Delhi and Puducherry → Don’t participate in Impeachment process. • President actions prior to impeachment will not get affected. |
Powers and Functions of the President
Executive power
Can be categorized into appointment and administrative powers.
Appointment powers:
He appoints PM and his council of Ministers + Chief Justice of India + Governor + CAG, Chief Election Commissioner + Chairman and members of UPSC + Attorney General.
Administrative powers and duties:
The executive powers of the Union are vested with the President of India.
Additional powers can be granted to President (by Parliament)
Can make rules for the convenient transactions of business of the Union government.
Can seek any information from the PM about administrative affairs and legislative proposals of the Union.
Administers Union Territories.
Can constitute an Inter-State Council.
Legislative powers
Power to summon, prorogue or dissolve the Lok Sabha.
Bill can become law only after President assent.
Can nominate 12 members to the Rajya Sabha
Can send a bill back to the parliament (except money bill or constitutional amendment bill).
Can call a joint sitting of both houses. (Article 108)
Addresses the first session of parliament (post general election) + first session each year.
Prior recommendation of President to introduce certain bills (reorganization of states).
Can disqualify MP’s on the recommendation of the Election Commission.
He lays the reports of CAG, UPSC, Finance Commission and others before the Parliament.
Promulgate ordinances when parliament is not in session.
Ordinance making power
| Parameter | Related Facts |
|---|---|
| Constitutional provision | • Article 123 |
| Promulgation of Ordinance | • Only when ‘both’ houses or when either of the two houses are not in session. • To deal with unforeseen emergencies which require immediate action. |
| Scope | • Co – extensive with legislative power of union. • Applicable from retrospective date (civil, tax laws not criminal laws) • Can’t be issued to amend Constitution. |
| Approval of Parliament | • Ordinance is submitted for Parliamentary approval after reassembly. (statement should be present to explain circumstances which led to ordinance). |
| Duration | • Maximum life- 6 months and 6 weeks. • Ordinance expires six weeks after the reassembly of both houses of Parliament in case of non approval. |
| Withdrawal of ordinance | • President can withdraw an ordinance at any time |
| Other Facts | • If parliament do not approve, actions taken under ordinances do not nullify. |
| Judgements of Supreme Court: | • Coopers Case: Ordinance power of President is subject to Judicial review on malafide grounds. • DC Wadhwa Case: Ordinance power should be used only in exceptional circumstances. It is not a substitute for the legislative power. • Krishna Kumar Singh vs State of Bihar: Re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes |
Veto Power of the President
Constitutional provision: Article 111 (President can veto bills).
The term ‘Veto Power’ is not mentioned in the Constitution.
President can’t veto Constitutional amendment bill (24th constitutional amendment act).
Bills → President assent → Can give assent/withhold assent/return bill for re-consideration.
Helps prevent unconstitutional legislation + hasty/ ill-considered legislation.
Types of Vetos
| Types of Vetos | Explanation | Availability with the President |
|---|---|---|
| Absolute Veto | • Power of the President to withhold his assent to a bill • Bill does not become act | • Private Members’ Bills • Cabinet resigns and the new cabinet advises the President not to give assent to such bills. |
| Suspensive Veto | • President returns the bill for Parliament reconsideration. • Parliament can resend the bill with/without changes. In this case President must give his assent. | • President does not possess this veto in case of money bill. |
| Pocket Veto | • No time limit prescribed for the President to give his assent to the bill. | • President can postpone action on a bill for an indefinite time, and not return it to Parliament |
| Presidential Veto over State legislation | • Governor can reserve bill for President consideration → President can give/withhold assent or can send it for re – consideration. If the state legislature resends bill President is not bound to accept it. • No time limit has been given to the President for accepting the bill. |
Military powers
President → Commander in chief of all the Indian armed forces + Appoints the chiefs of all the armed forces + Power to declare war or conclude peace (advice of PM + CoM).
Diplomatic Powers
All treaties with foreign countries are signed in President’s name.
Appoints Ambassadors and receives the credentials of the foreign diplomatic representatives.
Financial Powers
Prior recommendation of the President is needed for Introduction of Money Bills.
Make advances from Contingency fund to meet any unforeseen expenditure.
Lays down Annual Financial Statement (Union Budget) before parliament
Constitutes a Finance Commission every 5 years
Emergency Powers
President can proclaim three types of emergencies under: National emergency (Art, 352), President’s Rule (Article 356), and financial (Article 360) respectively.
Judicial Powers
President can seek advice from SC on any question of law or fact. (Advice not binding on the President).
Power to grant pardons, remit, commute, and respite (we will study in detail below)
Pardoning Powers
Pardoning power are mentioned in Article 72 of Indian constitution. The scope of President pardoning power extends in cases of offense against Union law, punishment by military court and death sentence..
| Pardon | Reprieve | Remission | Respite | Commutation |
|---|---|---|---|---|
| Remove both conviction and sentence + completely absolve the offender. | Stay on execution of the sentence (especially of death) for a temporary period | Reduce period of sentence without changing its character example 6 months for one year. | Lesser sentence due to special reason (ex. Pregnant women offender) | Substitute one form of punishment with a lighter character (ex death penalty to life imprisonment) |
Comparison b/w Pardoning power of the President and Governor
| Pardoning power of the President | Pardoning Power of the Governor |
|---|---|
| Can pardon sentences inflicted by court-martial | Cannot pardon sentences inflicted by court-martial |
| Can pardon death sentences | Cannot pardon death sentences. Can only suspend, remit or commute a death sentence. |
Constitutional Position of the President
Art 53: Executive power of Union lies with President
Art 74: Aid and advice of council of ministers shall be available. Advice is binding (42nd CA) + Can send for re – consideration (44th CA)
Art 75(3): Collective responsibility of Council of Ministers to Lok Sabha.
Art 78: PM shall give information on laws, policies to President of India. President can call for any information from government. President can submit a Ministers decision to consideration of Council of Ministers.
Discretionary Powers
No constitutional discretion. Enjoys situational discretion power in following cases
To appoint the PM in case of Hung Parliament
To dissolve Lok Sabha or to call for an alternative after no confidence motion is passed in LS
To send a bill for reconsideration (44th CAA)
Dismissal of Council of Ministers if they do not resign after No confidence Motion is passed
To ensure that six months do not lapse between two sessions of parliament.
VICE PRESIDENT
Key Facts related to the Office of Vice President
| About | • 2nd Highest constitutional office in India • Order of Precedence → Second rank after President • Ex – Officio Chairman of Rajya Sabha |
| Qualifications | • Constitutional requirement: 35 years + Indian citizen + Qualified to become Member of Rajya Sabha + No office of Profit • Other Requirements: Nomination needs to be subscribed by 20 electors (proposers) + 20 electors (seconders). • Security deposit: Rs.15,000 |
| Election system | • Indirect election • Proportional representation by single transferable vote |
| Voters in election | • Elected by all the members of the Parliament (both elected and nominated). State Legislature members don’t participate. |
| Dispute related to election | • Decision lies with Supreme court. |
| Term of Office | • 5 years, eligible for re-election any number of times |
| Oath or Affirmation: | • To bear true faith and allegiance to Indian constitution • To faithfully discharge duties of his office. |
| Emoluments | • Decided by the Parliament |
| Vacancy | • Tenure ends in case of Resignation + Removal + Death + Others (Election declared void). • Tenure ends: Election must be held before tenure ends. • In other cases Newly elected Vice President enjoys full term • In case of vacancy no substitution is mentioned in the constitution. • Deputy chairman performs the duty of Vice President. |
Key Facts related to the Office of Vice President
| Removal of Vice -President | • Can be removed by a resolution of RS with effective majority (By a majority of all the then members of the house) + Passed by Lok Sabha (by simple majority). • 14 days advance notice should be given. • Such resolution cannot be introduced in the Lok Sabha |
| Functions of Vice – President | • Acts as ex – officio chairman of the Rajya Sabha. • Acts as President when vacancy occurs (due to resignation, impeachment, death or otherwise). |
| Comparison with American Vice President | • Similar to India VP American vice president also chairs the senate (Upper house). • Unlike Indian VP in case of death, illness of US President, Vice President takes office for the rest of the term. |
PRIME MINISTER
Our constitution provides for parliamentary system of government. Under it –
President: de jure executive → Nominal Executive Authority – Head of State
Prime Minister: de facto – Real Executive Authority – Head of Government
Appointment of the Prime Minister
Constitution: No specific procedure is mentioned.
Article 75: Prime Minister shall be appointed by the president (Only mention w.r.t appointment)
Convention of Parliamentary system (w.r.t appointment) –
Leader of Majority Party – President has to appoint the leader of the ‘majority party’ in the ‘Lok Sabha’ as the Prime Minister. (But certain situations demand President discretion).
Situation which requires President Discretion:
When no party has clear majority (Lok Sabha): President may exercise his personal discretion to select and appoint PM.
Course of Action: President usually appoints the ‘leader of the largest party’ or ‘coalition’ in the Lok Sabha as the Prime Minister.
Selected leader needs to seek a vote of confidence in the House within a month.
Example: President Neelam Sanjiva Reddy appointed Charan Singh exercising his discretion.
When the Prime Minister in office dies suddenly and there is no obvious successor.
Example: Death of Indira Gandhi, President Zail Singh – Appointed Rajiv Gandhi.
Exception: If on the death of an incumbent Prime Minister, the ruling party elects a new leader, the President must appoint him as Prime Minister.
Judiciary Rulings with regards to appointment of Prime Minister:
Delhi High court 1980: Constitution does not require that a person must prove his majority in the Lok Sabha before he is appointed as the Prime Minister.
Implication: President ‘may’ first appoint the Prime Minister and then ask him to prove his majority in the Lok Sabha within a reasonable period.
Examples: Charan Singh (1979), V.P. Singh (1989), Chandrashekhar (1990), P.V. Narasimha Rao (1991).
Supreme Court Ruling 1997: Person who is not a member of either House of Parliament can be appointed as Prime Minister. (6 months)
Special Requirement: He can be appointed Prime Minister only for six months, within which, he should become a member of either House of Parliament.
According to the Constitution, Prime Minister may be a member of any of the two Houses of parliament. (Lok Sabha or Rajya Sabha).
Example: 3 Prime Ministers – Indira Gandhi (1966), Deve Gowda (1996) and Manmohan Singh (2004), were members of the Rajya Sabha.
Oath, Term and Salary
Oath
Administered by President.
To bear true faith and allegiance to the Constitution of India + uphold the sovereignty and integrity of India + faithfully and conscientiously discharge the duties of his office + Do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill will.
Oath of Secrecy: Not to communicate or reveal to any person(s) any matter that is brought under his consideration or becomes known to him as a union minister. (Exception – Required for due to discharge of his duties).
Term
‘Not’ fixed – he holds office during the ‘pleasure’ of the president.
President cannot dismiss Prime Minister at any time Cannot be dismissed till PM holds the ‘majority support’ in LS,
PM loses the confidence of the LS: Resign or the President dismisses him.
Salary and Allowances
It is determined by Parliament.
Power and Functions of the Prime Minister
In relation to the Council of Ministers
Appointment of the Ministers – President can appoint ‘only’ those persons who are recommended by PM.
Allocation of Portfolios: PM allocates and reshuffles various portfolios among the ministers.
Removal of Minister: PM can ask a minister to resign or advise the President to dismiss him.
Council of Ministers: PM presides over the meeting of CoM and influences its decisions.
Administrative role: He guides, directs, controls, and coordinates the activities of all the ministers.
Resignation (or death) of PM automatically dissolves the council of ministers.
In Relation to the President
Main channel of communication between the ‘President’ and the ‘council of ministers.
Communicate to President all decisions of council of ministers with regards to 1) Administration of the affairs of the Union 2) Proposals for legislation.
To furnish information about 1) Administration of the affairs of the Union 2) Proposals for legislation (Whatever information the President asks for).
In case the President wants – To submit any matter for the ‘consideration’ of the CoM on which a decision has been taken by a minister but has not been considered by the council.
Advisory role: PM advises the President regarding the appointment of important officials like Attorney general of India, CAG, Chairman and members of the UPSC.
In relation to the Parliament
Advises the President regarding summoning and proroguing the sessions of the Parliament.
Dissolution of the Lok Sabha: PM can recommend dissolution of the Lok Sabha to the President at any time.
Announcement of Government policies on the floor of the House.
List of Bodies where Prime Minister is the Chairman
| Prime Minister presides over these Bodies |
|---|
| NITI Aayog. (Executive Body) |
| Indian Board of wildlife (statutory – wildlife protection act 1972) |
| National Ganga River Basin authority – statutory body under Environmental Protection act 1986. |
| National commission on Population: Executive body |
Prime Minister presides over these Bodies
Nuclear command authority
National disaster management authority
Interstate council
National integration council
CSIR
Department of space, atomic energy, DoPT
Cabinet committee on appointments, economic affairs and political affairs
National water resource council.
Facts related to Prime Minister
Key Facts Related to Prime Minister
| First Prime Minister of India who was a member of the Rajya Sabha | Indira Gandhi |
| Longest-Serving Indian Prime Minister | Jawaharlal Nehru |
| The first woman Prime Minister to receive the Bharat Ratna | Indira Gandhi |
| Indian Prime Minister received Pakistan’s highest civilian award | Moraraji Desai |
| First Prime Minister from South India | P.V. Narsimha Rao |
UNION EXECUTIVE: COUNCIL OF MINISTERS
Parliamentary system in India is modelled on the British pattern.
Council of ministers headed by the Prime minister are the real executive authority
Constitutional Provisions
Article 74 – Council of Ministers to aid and advise President
Council of Ministers headed by Prime Minister ‘aid and advise’ the President
President ‘shall’ act in accordance with such advice. Shall means the advice is binding.
President ‘may’ require the CoM to reconsider such advice.
After reconsideration the President ‘shall’ act in accordance with the advice tendered. (It is upto the council of minister to change their advice or keep it the same).
Nature of advice tendered by the Council of Ministers
42nd(binding) and 44th (Reconsideration) Constitutional Amendment Acts have made the advice binding on the President.
Nature of advice tendered by ministers to the President cannot be enquired by any court.
Supreme Court Ruling (1971):
After dissolution of the Lok Sabha, the Council of Ministers do not cease to hold office.
Article 74 is mandatory: The president cannot exercise the executive power without the aid and advise of the council of ministers.
Supreme Court Ruling (1974): The satisfaction of the President in the constitution in fact means the satisfaction of the council of Ministers (This is the reason why the office of the President is considered as a “Rubber Stamp”)
Article 75 – Other provisions as to Ministers
Prime Minister ‘shall’ be appointed by the President.
Other Ministers shall be appointed by the President on the advice of the Prime Minister.
This means only those persons recommended by the Prime Minister can be appointed by the President.
Members of both houses (Lok Sabha or Rajya Sabha) can be appointed as Ministers.
Strength of the Council of Ministers ‘shall’ not exceed 15% of the total strength of the Lok Sabha. (91st Amendment Act)
Anti-defection law: A member of either house of Parliament (any political party) who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister. (91st Amendment act).
The ministers shall hold office during the ‘pleasure of the President’.
Collective Responsibility: Council of Ministers are collectively responsible to the Lok Sabha
Administration of Oath: The President shall administer the oaths of office and secrecy to a minister.
Condition to remain a Minister: A minister who is not a member of the Parliament (either house) for period of six consecutive months ceases to be a minister.
Salaries and allowances of ministers: These are determined by the Parliament.
Right to Speak: Minister who is a member of one House of Parliament (suppose Lok Sabha) has the right to speak and to take part in the proceedings of the other House (Rajya Sabha).
Right to Vote: Minister can vote only in the House of which he is a member.
Responsibility of Ministers
Collective Responsibility
Lies to the Lok Sabha: (Mentioned under Article 75(3) of constitution). This means
Council of ministers own joint responsibility to the Lok Sabha for all their acts
No confidence motion – When this motion is passed in Lok Sabha all the ministers must resign including those ministers who are from the Rajya Sabha.
Dissolution of the Lok Sabha: Council of ministers can advise the president to ‘dissolve’ the Lok Sabha.
Grounds: House does not represent the views of the electorate faithfully.
If the CoM has lost the confidence of Lok Sabha President ‘may’ not oblige them.
Binding Decision: Cabinet Decisions bind all cabinet ministers (and other ministers) even if they differed in the cabinet meeting.
Minister who disagrees with a cabinet decision and is not prepared to defend it, must resign.
Examples: Dr. B.R. Ambedkar (Hindu Code Bill in 1953), C.D. Deshmukh (reorganization of states), Arif Mohammed (Women (Protection of Rights on Divorce) Act, 1986).
Individual Responsibility
Article 75 also contains the provision for Individual Responsibility.
Implication: President can ‘remove’ a minister even when the council of ministers enjoy the confidence of the Lok Sabha.
However, the President removes a minister only on the advice of the Prime Minister.
No Legal Responsibility
In India Minister do not countersign an order of President. (In UK, minister must countersign the order of queen). This means that there is no provision in Indian Constitution for the system of legal responsibility of a minister.
Types of Ministers
In practice, India has following types of Ministers (no such classification mentioned in the constitution) –
Cabinet Minister: He is present and participates in every meeting of the Cabinet. Head the important ministries of the Central government like home, defense, finance, external affairs and so forth.
Minister of State with independent charge: He does not work under a cabinet minister. When any matter concerning his Department is on the agenda of the Cabinet, he is invited to attend the meeting.
Minister of State: He is a Minister who does not have independent charge of any Department and works under a cabinet minister. The work to such Minister is allotted by his cabinet minister.
Deputy Minister: He is a Minister who works under a cabinet minister or a Minister of State with independent charge. His work is allotted by the Minister under whom he is working.
One associated topic is Parliamentary Secretaries –
Parliamentary Secretaries: They have no department under their control. They are attached to the senior ministers and assist them in the discharge of their parliamentary duties.
Council of Ministers vs Cabinet
| Point of Difference | Council of Minister | Cabinet |
|---|---|---|
| Size | A wider body consisting of 60 to 70 ministers | Smaller Body consisting of 15 to 20 members. |
| Composition | Includes all the three categories of ministers, that is, cabinet ministers, Ministers of State and Deputy Minister. | Includes Cabinet Ministers only, thus it is a part of the council of Ministers. |
| Meeting | No collective functions – It does not meet, as a body, to transact government business. | Collective Functions – It meets, as a body, frequently and usually once in a week to deliberate and take decisions. |
| Powers | Theoretically, it is vested with all the powers. | The powers vested in the CoM theoretically are actually exercised by the Cabinet |
| Functions | Determined by the cabinet. | Directs the council of ministers by taking policy decisions which are binding on all ministers. |
| Role | It implements the decisions taken by the cabinet. | Supervises the implementation of its decisions by the council of ministers. |
| Constitutional Status | It is a constitutional body (Article 74 and Article 75) | It was conferred the status of a constitutional body after the passing of 44th Constitutional Amendment Act 1978. (Article 352) |
| Collective Responsibility | Collectively responsible to the Lower House of the Parliament. | Enforces the collective responsibility of the council of ministers to the Lower House of Parliament. |
CABINET COMMITTEES
Features of Cabinet Committees
Extra – constitutional bodies: They are extra-constitutional (Neither constitutional nor statutory). It means they are not mentioned in the Constitution.
Source: ‘Rules of Business’ provide for their establishment.
Types: 2 types 1) Standing and 2) Ad hoc.
Standing committees are of a permanent nature.
Ad hoc committees are of a temporary nature. These are constituted from time to time to deal with special problems. They are disbanded after their task is completed.
Who forms them: They are set up by the Prime Minister from time to time.
Nature: Their number, nomenclature, and composition keep varying.
Membership: Varies from 3 to 8. They usually include only Cabinet Ministers.
However, remember that the non-cabinet Ministers can also become members.
Senior Minister also form part of these committees.
Head: Mostly by Prime Minister. (Sometimes other cabinet minister like finance or Home Minister). In case Prime Minister (PM) is a member of a committee, he ALWAYS presides it.
Decision Making: Cabinet committees can take decisions but their decisions can be reviewed by the cabinet.
Purpose: 1) Organizational device to reduce the workload of the Cabinet. 2) Facilitate in-depth examination of policy issues 3) Effective coordination.
List of functioning Cabinet Committees
Appointments Committee of the Cabinet.
Cabinet Committee on Economic Affairs.
Cabinet Committee on Political Affairs.
Cabinet Committee on Investment and Growth.
Cabinet Committee on Security.
Cabinet Committee on Parliamentary Affairs.
Cabinet Committee on Employment & Skill Development.
Cabinet Committee on Accommodation.
Function of Cabinet Committees
Give a brief reading for your understanding:
Political Affairs Committee: (Head – PM) deals with all policy matters pertaining to domestic and foreign affairs. This is the most powerful committee often described as a “Super Cabinet.”
Economic Affairs Committee: (Head – PM) directs and coordinates the governmental activities in the economic sphere.
Appointments Committee: (Head – PM) decides all higher-level appointments in the Central Secretariat, Public Enterprises, Banks and Financial Institutions.
Parliamentary Affairs Committee: (Head – HM) looks after the progress of government business in the Parliament.
Cabinet committee on Security: (Head – PM) – To deal with all Defense related issues. (Law and Order, Atomic Energy).
Group of Ministers – (GoM)
In addition to cabinet committees, Groups of Ministers (GoMs) are constituted to investigate different issues / subjects.
Few GoMs are empowered to take decisions on behalf of the Cabinet. While others make recommendations to the Cabinet.
Purpose: Instrument for coordination among the ministries.
Nature: Ad hoc bodies formed to give recommendations to the cabinet on certain emergent issues and critical problem areas. (Once objective is attained, they are disbanded).