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Centre for Distance EducationBharathidasan University Trichy-620024
Public Administration
INDIAN CONSTITUTIONAuthor
Prof. Dr. D. RamakrishnanHead and Chairperson
Department of Political ScienceSchool of Social Sciences
Madurai Kamaraj UniversityMadurai, Tamil Nadu- 625 021
India
Undergraduate
Allied-II
CONTENTS
Unit -1
1.1 Introduction
1.2 Features of Constitution
1.3 Making of Constitution
1.4 Preamble
1.5 Formation of State
1.6 Indian Citizenship.
Unit – 2
2.1 Introduction
2.2 Fundamental Rights
2.3 Directive Principles of State Policy
2.4 Fundamental Duties.
Unit-3
3.1 Introduction
3.2 Union Government
3.3 Union Executive
3.4 Legislature and Judiciary
Unit – 4
4.1 Introduction
4.2 State Administration Executive
4.3 Legislature
4.4 High Court
4.5 Subordinate
UNIT- V
5.1 Introduction
5.2 Centre – State Relation
5.3 Legislative Relations
5.4 Administration Relations
5.5 Financial Relation
5.6 Provision for Weaker Sections
5.7 Emergencies – Amendments
Unit -1
1.1 Introduction
1.2 Features of Indian Constitution
1.3 Making of Constitution
1.4 Preamble
1.5 Formation of State
1.6 Indian Citizenship
UNIT – 1
Objectives:
To give a brief sketch the features that the Indian Constitution
To make understand the students about the making of Constitution
To discuss the features of Preamble
overview on Indian Citizenship
1.1 INTRODUCTION
The word ‘Constitution’ is of French origin which is generally used for regulation and orders.
The Constitution of any country is the fundamental law of the land with greater authority and
sanctity. It not only describes the basic principles of the State, the structures and processes of
governance and the fundamental rights of citizens but also envisions a path of growth and
development for a nation.
After India attained freedom, the dream of the Constitution makers was to evolve such a
viable model of governance that would best serve the nation keeping the primacy of the
people as central. It is the farsightedness and visionary leadership of the Founding Fathers of
the Constitution which has bestowed the country with an outstanding Constitution that has
worked as a beacon for the nation over the last seven decades. The country greatly owes the
success of the democratic system to the robust edifice and institutional framework that the
Constitution of India has laid down. It was in 1934 that the idea of a Constituent Assembly
for India was put forward for the first time by M. N. Roy, a pioneer of communist movement
in India. In 1935, the Indian National Congress (INC), for the first time, officially demanded
a Constituent Assembly to frame the Constitution of India. In 1938, Jawaharlal Nehru, on
behalf the INC declared that ‘the Constitution of free India must be framed, without outside
interference, by a Constituent Assembly elected on the basis of adult franchise’
On 26 November 1949, "We, the People of India”, resolved “to adopt, enact and give to
ourselves" the Constitution of independent India. In commemoration of the 125th Birth
Anniversary of Dr. B.R. Ambedkar on 26 November in the year of 2015, both the Houses of
Parliament held dedicated sittings for discussion on "Commitment to India's Constitution" as
a part of Celebrations. Since then, the day of 26 November is celebrated as the Constitution
Day every year. Earlier, this day was commemorated as National Law Day, after a resolution
by the Supreme Court Bar Association, a lawyers’ body, in 1979.
Our Constitution is a resolve to constitute India into a sovereign, socialist, secular democratic
Republic. It is, in fact, a promise to the people for securing them socio-economic and political
justice, liberty and equality; liberty of thought, expression, belief, faith and worship; equality
of status and opportunity; and to promote among all – fraternity, assuring the dignity of the
individual and the unity of the nation. Dr. B. R. Ambedkar, very clearly outlined the core
expectations underlining the various commitments. He said: “Our object in framing the
Constitution is two-fold: to lay down the form of political democracy, and to lay down that
our ideal is economic democracy and also to prescribe that every Government whatever is in
power shall strive to bring about economic democracy…”.
The Constitution of India lays down a structure for political, economic and social
democracy. It underlines the commitment of the people of India for asserting, ensuring and
achieving the various national goals through peaceful and democratic ways. It is not merely a
legal manuscript; rather, it is a vehicle that steers the nation to realise the dreams and
aspirations of the people by accommodating and adapting to the changing needs and realities
of the times. Making India, that is Bharat, as a Union of States, equality before the law and
equal protection of the laws is the essence of the Constitution. At the same time, the
Constitution is sensitive to the needs and concerns of the underprivileged and disadvantaged
segments of the society too. The Constitution of India is the supreme law of the land, on the
basis of which the entire governance system works. The Founding Fathers had chosen
parliamentary democracy as the system of governance for the nascent Republic. The idea of a
Constituent Assembly germinated in the social contract tradition. That the Constitution of a
sovereign democratic nation would be framed by the citizens themselves is a powerful
democratic assertion.
1.2 FEATURES OF CONSTITUTION
The constitution of India has some outstanding features which distinguish it from other
constitutions. Constitution of India is unique in itself. The framers of our constitution studied
other many constitution, selected their valuable features and put them with necessary
modifications in our constitution. Indian constitution is not a copied constitution, but it has
been influenced by other constitutions around world. The people behind the constitution
making wanted to create an adaptive constitution which is very suitable for the diversity of
India and they succeeded in doing this. The salient features of the Constitution, as it stands
today, are as follows:
1. Longest written constitutional Document
Constitutions are classified into written, like the American Constitution, or unwritten,
like the British Constitution. The Constitution of India is the lengthiest of all the
written constitutions of the world. It is a very comprehensive, elaborate and detailed
document. Originally, the Constitution contained a Preamble, 395 Articles (divided
into 22 Parts) and 8 Schedules. No other Constitution in the world has so many
Articles and Schedules. Four factors have contributed to the elephantine size of our
Constitution. They are:
(a) Geographical factors, that is, the vastness of the country and its diversity.
(b) Historical factors, e.g., the influence of the Government of India Act of 1935,
which was bulky.
(c) Single Constitution for both the Centre and the states except Jammu and Kashmir.
(d) Dominance of legal luminaries in the Constituent Assembly.
The Constitution contains not only the fundamental principles of governance but also
detailed administrative provisions. Further, those matters which in other modern
democratic countries have been left to the ordinary legislation or established political
conventions have also been included in the constitutional document itself in India.
2. Partly Rigid and Partly Flexible
Constitutions are also classified into rigid and flexible. A rigid Constitution is one that
requires a special procedure for its amendment, as for example, the American
Constitution. A flexible constitution, on the other hand, is one that can be amended in
the same manner as the ordinary laws are made, as for example, the British
Constitution. The Constitution of India is neither rigid nor flexible but a synthesis of
both. Some parts of the constitution can be amended by the ordinary law- making
process by parliament. Certain provisions can be amended, only when a bill for that
purpose is passed in each house of parliament by a majority of nthe total membership
of that house and by amajority of not less than two-third of the members of that house
present and voting. Then there are certain other provisions which can be amended by
the second method describe above and are ratified by the legislatures of not less than
one-half of the styate before being presented to the president for his assent. It must
also be noted that the power to initiate bills for amendment lies in the parliament
alone, and not in the state legislatures.
3. Federal System with Unitary Bias
The Constitution of India establishes a federal system of government. It contains all
the usual features of a federation, viz., two government, division of powers, written
Constitution, supermacy of Constitution, rigidity of Constitution, independent
judiciary and bicameralism.
However, the Indian Constitution also contains a large number of unitary or non-
federal features, viz., a strong Centre, single Constitution, single citizenship,
flexibility of Constitution, integrated judiciary, appointment of state governor by the
Centre, all-India services, emergency provisions, and so on.
Moreover, the term ‘Federation’ has nowhere been used in the Constitution. Article
1, on the other hand, describes India as a ‘Union of States’ which implies two things:
one, Indian Federation is not the result of an agreement by the states; and two, no state
has the right to secede from the federation. Hence, the Indian Constitution has been
variously described as ‘federal in form but unitary in spirit’, ‘quasi-federal’ by K C
Wheare, ‘bargaining federalism’ by Morris Jones, ‘co-operative federalism’ by
Granville Austin, ‘federation with a centralising tendency’ by Ivor Jennings, and so
on.
4. Parliamentary Form of Government
The Constitution of India has opted for the British parliamentary System of
Government rather than American Presidential System of Government. The
parliamentary system is based on the principle of cooperation and coordination
between the legislative and executive organs while the presidential system is based on
the doctrine of separation of powers between the two organs. The parliamentary
system is also known as the ‘Westminster’ 10 model of government, responsible
government and cabinet government. The Constitution establishes the parliamentary
system not only at the Centre but also in the states. The features of parliamentary
government in India are:
(a) Presence of nominal and real executives;
(b) Majority party rule,
(c) Collective responsibility of the executive to the legislature,
(d) Membership of the ministers in the legislature,
(e) Leadership of the prime minister or the chief minister,
(f) Dissolution of the lower House (Lok Sabha or Assembly).
Even though the Indian Parliamentary System is largely based on the British pattern,
there are some fundamental differences between the two. For example, the Indian
Parliament is not a sovereign body like the British Parliament. Further, the Indian
State has an elected head (republic) while the British State has hereditary head
(monarchy). In a parliamentary system whether in India or Britain, the role of the
Prime Minister has become so significant and crucial that the political scientists like
to call it a ‘Prime Ministerial Government’.
5. Synthesis of Parliamentary Sovereignty and Judicial Supremacy
The doctrine of sovereignty of Parliament is associated with the British Parliament
while the principle of judicial supremacy with that of the American Supreme Court.
Just as the Indian parliamentary system differs from the British system, the scope of
judicial review power of the Supreme Court in India is narrower than that of what
exists in US. This is because the American Constitution provides for ‘due process of
law’ against that of ‘procedure established by law’ contained in the Indian
Constitution (Article 21). Therefore, the framers of the Indian Constitution have
preferred a proper synthesis between the British principle of parliamentary
sovereignty and the American principle of judicial supremacy. The Supreme Court,
on the one hand, can declare the parliamentary laws as unconstitutional through its
power of judicial review. The Parliament, on the other hand, can amend the major
portion of the Constitution through its constituent power.
6. Integrated and Independent Judiciary
The Indian Constitution establishes a judicial system that is integrated as well as
independent. The Supreme Court stands at the top of the integrated judicial system in
the country. Below it, there are high courts at the state level. Under a high court, there
is a hierarchy of subordinate courts, that is, district courts and other lower courts. This
single system of courts enforces both the central laws as well as the state laws, unlike
in USA, where the federal laws are enforced by the federal judiciary and the state
laws are enforced by the state judiciary. The Supreme Court is a federal court, the
highest court of appeal, the guarantor of the fundamental rights of the citizens and the
guardian of the Constitution. Hence, the Constitution has made various provisions to
ensure its independence—security of tenure of the judges, fixed service conditions for
the judges, all the expenses of the Supreme Court charged on the Consolidated Fund
of India, prohibition on discussion on the conduct of judges in the legislatures, ban on
practice after retirement, power to punish for its contempt vested in the Supreme
Court, separation of the judiciary from the executive, and so on.
7. Fundamental Rights
Part III of the Indian Constitution guarantees six 11 fundamental rights to all the
citizens:
(a) Right to Equality (Articles 14–18),
(b) Right to Freedom (Articles 19–22),
(c) Right against Exploitation (Articles 23–24),
(d) Right to Freedom of Religion (Articles25–28),
(e) Cultural and Educational Rights (Articles 29–30), and
(f) Right to Constitutional Remedies (Article 32).
The Fundamental Rights are meant for promoting the idea of political democracy.
They operate as limitations on the tyranny of the executive and arbitrary laws of the
legislature. They are justiciable in nature, that is, they are enforceable by the courts
for their violation. The aggrieved person can directly go to the Supreme Court which
can issue the writs of habeas corpus, mandamus, prohibition, certiorari and quo
warranto for the restoration of his rights.
8. Directive Principles of State Policy
According to Dr B R Ambedkar, the Directive Principles of State Policy is a ‘novel
feature’ of the Indian Constitution. They are enumerated in Part IV of the
Constitution. They can be classified into three broad categories— socialistic,
Gandhian and liberal–intellectual. The directive principles are meant for promoting
the ideal of social and economic democracy. They seek to establish a ‘welfare state’
in India.
However, unlike the Fundamental Rights, the directives are non-justiciable in nature,
that is, they are not enforceable by the courts for their violation. Yet, the Constitution
itself declares that ‘these principles are fundamental in the governance of the country
and it shall be the duty of the state to apply these principles in making laws’. Hence,
they impose a moral obligation on the state authorities for their application. But, the
real force (sanction) behind them is political, that is, public opinion.
9. Fundamental Duties
The original constitution did not provide for the fundamental duties of the citizens.
These were added during the operation of internal emergency (1975–77) by the 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.
The Part IV-A of the Constitution (which consists of only one Article—51- A)
specifies the eleven Fundamental Duties viz., to respect the Constitution, national flag
and national anthem; to protect the sovereignty, unity and integrity of the country; to
promote the spirit of common brotherhood amongst all the people; to preserve the rich
heritage of our composite culture and so on. The fundamental duties serve as a
reminder to citizens that while enjoying their rights, they have also to be quite
conscious of duties they owe to their country, their society and to their fellow-
citizens. However, like the Directive Principles, the duties are also non-justiciable in
nature.
10. A Secular State
The Constitution of India stands for a secular state. Hence, it does not uphold any
particular religion as the official religion of the Indian State. The following are the
some provisions of the Constitution reveal the secular character of the Indian State:
(a) The term ‘secular’ was added to the Preamble of the Indian Constitution by the
42nd Constitutional Amendment Act of 1976.
(b) The Preamble secures to all citizens of India liberty of belief, faith and worship.
(c) The State shall not deny to any person equality before the law or equal protection
of the laws (Article 14).
(d) The State shall not discriminate against any citizen on the ground of religion
(Article 15). (e) Equality of opportunity for all citizens in matters of public
employment (Article 16).
(f) All persons are equally entitled to freedom of conscience and the right to freely
profess, practice and propagate any religion (Article 25).
11. Universal Adult Franchise
The Indian Constitution adopts universal adult franchise as a basis of elections to the
Lok Sabha and the state legislative assemblies. Every citizen who is not less than 18
years of age has a right to vote without any discrimination of caste, race, religion, sex,
literacy, wealth, and so on. The voting age was reduced to 18 years from 21 years in
1989 by the 61st Constitutional Amendment Act of 1988. The introduction of
universal adult franchise by the Constitution-makers was a bold experiment and
highly remarkable in view of the vast size of the country, its huge population, high
poverty, social inequality and overwhelming illiteracy.
12. Single Citizenship
Though the Indian Constitution is federal and envisages a dual polity (Centre and
states), it provides for only a single citizenship, that is, the Indian citizenship. In
countries like USA, on the other hand, each person is not only a citizen of USA but
also a citizen of the particular state to which he belongs. Thus, he owes allegiance to
both and enjoys dual sets of rights—one conferred by the National government and
another by the state government. In India, all citizens irrespective of the state in which
they are born or reside enjoy the same political and civil rights of citizenship all over
the country and no discrimination is made between them excepting in few cases like
tribal areas, Jammu and Kashmir, and so on. Despite the constitutional provision for a
single citizenship and uniform rights for all the people, India has been witnessing the
communal riots, class conflicts, caste wars, linguistic clashes and ethnic disputes. This
means that the cherished goal of the Constitution-makers to build an united and
integrated Indian nation has not been fully realised.
CRITICISM OF THE CONSTITUTION
The Constitution of India as framed and adopted by the Constituent Assembly of
India has been criticized on the following grounds:
1. A Borrowed Constitution,
2. A Carbon Copy of the 1935 Act,
3. An Un-Gandhian Constitution,
4. Elephantine Size,
5. Paradise of the Lawyers.
2.3 MAKING OF CONSTITUTIONThe evolution of representative institutions in the country began many decades before
26 January 1950 and continued unabated since. Its origins lie deeply embedded in the
struggle for independence from Britain and in the movements for responsible and
constitutional government in the princely States. The Charter Act of 1853 provided
some sort of a separate ‘Legislature’ in the form of a 12-member Legislative Council.
The Indian Councils Act, 1861, which is described as the “prime Charter of the
Indian Legislature” inaugurating the “system of legislative devolution in India”, was
followed by the Indian Council’s Act of 1892 and 1909. The Act of 1909 which was
in implementation of the Morley-Minto Reforms, introduced an element of election
and representation in the Legislative Council at the Union. However, none of these
Acts provided for decisive say to the native elements in the matters of legislation and
administration. The Government of India Act of 1919, which gave effect to the
Montague-Chelmsford Reforms, established a Bicameral Legislature at the Union for
the first time and introduced some elements of responsible form of Government in the
Provinces. The national leaders found the 1919 reforms inadequate, unsatisfactory
and disappointing and urged the British Parliament to take early steps to establish
fully responsible Government in India in accordance with the principle of self-
determination. For early revision of the Government of India Act, 1919, a resolution,
which later became famous as the ‘National Demand’, was adopted by the Central
Legislative Assembly which, for the first time, lent its support to the growing demand
that the future Constitution of India should be framed by Indians themselves.
In 1922, Mahatma Gandhi asserted the demand that India’s destiny should be
determined by the Indians themselves. He stated: “Swaraj will not be a free gift of the
British Parliament. It will be a declaration of India’s full selfexpression, expressed
through an Act of Parliament. But it will be merely a courteous ratification of the
declared wish of the people of India. The ratification will be a treaty to which Britain
will be a party. The British Parliament, when the settlement comes, will ratify the
wishes of the people of India as expressed through the freely chosen representatives”.
Another significant development in the Indian constitutional history was enactment
of the Government of India Act, 1935. The Government of India Act, 1935 occupies
a significant place in the constitutional history of India as the Act had endeavoured to
give a written Constitution to the country. However, the freedom fighters or people’s
representatives had no role in the making of this document, and it suffered from
serious drawbacks. Even after the enactment of the Government of India Act, 1935,
the Central Government in India, by and large, remained what it was under the Act of
1919, since the federal part of the 1935 Act never came into operation; only some
modifications in practice and procedure, as necessitated by the introduction of
‘autonomy’ in the Provinces, were made.
The Quit India Movement of 1942 lent a new thrust to the freedom struggle.
Subsequently, there were several efforts to work out the transfer of power and to
provide for a constitutional framework for free India. As a part of these efforts, a
British Cabinet Mission arrived in India on 24 March 1946.
The avowed purpose of the Mission was to assist the viceroy in setting up in India the
machinery by which Indians could devise their own Constitution. During the
negotiations, the emphasis on the fundamental issues of Independence and of a
representative Constituent Assembly for framing the future Constitution unhindered
by any external interference was reiterated. The Cabinet Mission presented on 16
May 1946 a scheme of its own, laying down the principles and procedure for framing
the future Constitution of India. In respect of the formation of the Constituent
Assembly in order to frame the Constitution without delay, the Plan suggested;
(i) to allot to each Province a total number of seats in proportion to its population,
roughly in the ratio of one to a million, as the nearest substitute for representation by
adult suffrage;
(ii) to divide the provincial allocation of seats between the main communities in each
Province in proportion to their population; and
(iii) to provide that the representatives allotted to each community in a Province shall
be elected by the members of that community in its Legislative Assembly.
Under the terms of the Cabinet Mission Plan, the Members of Constituent Assembly
were elected in July 1946. The India Independence Act, 1947 provided that the
Constituent Assembly would have unlimited power to frame and adopt any
Constitution and even to supersede the India Independence Act itself without the
need for any further legislation on the part of the British Parliament. The Indian
Independence Act expressly terminated the British Parliament’s authority to legislate
for the Dominion on or after the 15 August 1947. The Constituent Assembly, thus,
became a body fully representative of the States and Provinces in India and fully
sovereign of all external authority. As a sovereign body, it completed the task of
framing the Constitution for India in the best interest of people and without any
outside interference.
On 29 August 1947, the Drafting Committee was elected by the Constituent
Assembly under the Chairmanship of Dr. B.R Ambedkar for preparation of a draft
Constitution. The Constituent Assembly was able to complete the monumental task
of drafting a Constitution for independent India within a period of less than three
years-two years, eleven months and seventeen days, to be exact. They produced a
fine document, handwritten in 90,000 words. On the 26th day of November 1949, it
could proudly declare on behalf of the people of India that we do HEREBY
ADOPT, ANACT AND GIVE TO OURSELVES THIS CONSTITUTION. In all,
284 members actually appended their signatures to the Constitution as finally passed.
The Original Constitution contained a Preamble, 395 Articles and 8 Schedules. The
provisions relating to citizenship, elections, provisional Parliament, temporary and
transitional provisions were given immediate effect. The rest of the Constitution of
India came into force on 26 January 1950. On that day, the Constituent Assembly
ceased to exist, transforming itself into the Provisional Parliament of India until a
new Parliament was constituted in 1952.
2.4 Preamble The Preamble to the Constitution of India embodies and reflects the fundamental
values, philosophy and objectives on which the Constitution is based. The American
Constitution was the first to begin with a Preamble. Many countries, including India,
followed this practice. The term ‘preamble’ refers to the introduction or preface to the
Constitution. It contains the summary or essence of the Constitution. N A Palkhivala, an
eminent jurist and constitutional expert, called the Preamble as the ‘identity card of the
Constitution.’
The Preamble to the Indian Constitution is based on the ‘Objectives Resolution’, drafted and
moved by Pandit Nehru, and adopted by the Constituent Assembly . It has been amended by
the 42nd Constitutional Amendment Act (1976), which added three new words—socialist,
secular and integrity.
“We, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its
citizens:
JUSTICE, Social, Economic and Political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all;
FRATERNITY assuring the dignity of the individual and the unity and integrity of the
Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do
HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION”.
The following are the ideals and objectives of our Constitution as delineated in the Preamble:
Sovereignty: The opening words of the Preamble to the Constitution, ‘We the People
of India', announce to the world that the ultimate sovereignty rests with the people of
India as a whole. Accordingly, it is implied that the constitutional authorities and
organs of the Government derive their power only from the people of India.
Socialism: There are several articles in the Constitution giving credence to the ideals
of a Welfare State which stands to end all forms of exploitation in all spheres of
existence. As per the vision of the Constitution, the State is duty bound to strive for
promotion of a social order, in which justice, social, economic and political informs
all the institutions of the national life. The ownership and control of material
resources of the community are to be distributed as best to sub-serve the common
good and the operation of the economic system should not result in the concentration
of wealth and means of production to the common detriment. The Constitution has
facilitated land reforms, promoted well-being of the working class and advocated
social control of all important natural resources and means of production for the well-
being of all sections of society. ‘A basic minimum to all’ has been the crux of our
public policies.
Secularism: India is home to almost all the major religions of the world. The ideal of
secularism in the Indian context implies that the State does not itself uphold any
religion and protects all religions equally. Our State is not guided by any religion or
any religious considerations. In tune with the liberty of 'belief, faith and worship' as
promised in the Preamble, the Constitution provides for prohibition of discrimination
on the ground of religion; entitles all persons right to freedom of religion including
freedom of conscience and free profession, practise and propagation of religion,
freedom to manage religious affairs, freedom to pay taxes for promotion of any
particular religion and freedom of attendance at religious instruction or religious
worship in certain educational institutions; cultural and educational rights including
protection of interests of minorities and their right to establish and administer
educational institutions.
Democracy: The term ‘democratic’ is used in the Preamble in the broader sense
embracing not only political democracy but also social and economic democracy. We
have adopted parliamentary democracy to ensure a responsible and stable
Government which derives its authority from the people and remains accountable to
the people at all times. The people of India elect their governments at different levels
(Union, State and local) by a system of universal adult franchise, with elections being
held periodically to ensure the approval of the people to the governments. All the
citizens, without any discrimination on the basis of caste, creed, colour, sex, religion
or education, are allowed freedom of speech, thought and expression and association.
Democracy contributes to stability in society and it secures peaceful change of
governments. It also allows dissent and encourages tolerance and stands for a
constitutional government, Rule of Law, inalienable rights of citizens, independence
of the Judiciary, free and fair elections and freedom of the Press. To develop a
democratic culture has always been an important objective and commitment under our
Constitution.
Republic: Our country ceased to be a Dominion and declared itself a 'Republic' since
the making of the Constitution. The word ‘Republic’ implies that the Head of the
State in India shall be an elected person and shall hold office for a fixed term. The
President of India is the chief executive head of the country. A republic also means
two more things: one, vesting of political sovereignty in the people and not in a single
individual like a king; second, the absence of any privileged class and hence all public
offices being opened to every citizen without any discrimination.
Justice: The term ‘justice' in the Preamble embraces three distinct forms - social,
economic and political, which are secured through various provisions of Fundamental
Rights and Directive Principles. The Founding Fathers of our Constitution recognized
that political freedom would not automatically solve the socio-economic problems
which are deep rooted in society. Therefore, they stressed that the positive and
constructive aspect of political freedom has to be instrumental in the creation of a new
social order based on the doctrine of socioeconomic justice. Our Constitution
abolishes untouchability, prohibits exploitation of women, children and other weaker
sections, protects interests and rights of minorities and tribal people and advocates
affirmative action to raise the standard of the people oppressed over the ages. This
ideal of a just and egalitarian society remains one of the foremost commitments under
our Constitution.
Liberty: It was well acknowledged by the Founding Fathers that the ideal of
democracy was unattainable without the presence of certain minimal rights which are
essential for a free and civilized existence. The Preamble secures to all citizens of
India liberty of thought, expression, belief, faith and worship, as Fundamental Rights.
However, as liberty does not mean ‘license’ to do what one likes, it has been made
subject to reasonable restrictions as specified under article 19 of the Constitution.
Equality: As a human being, every individual has a dignified self. To ensure its full
enjoyment, inequality in all forms needs to be prohibited. Equality which
substantiates democracy and justice is, therefore, held as an important value under the
Constitution. Our Constitution assures equality: of status and opportunity to every
citizen without any discrimination on the ground of religion, race, caste, sex or place
of birth, by throwing open public places to all citizens, by abolishing untouchability,
by abolishing titles of honour, by guaranteeing equality before the law and equal
protection of the laws.
Fraternity: Fraternity stands for the spirit of common brotherhood. In the absence of
that, a plural society like India would stand divided. Therefore, to give meaning to the
ideals of justice, liberty and equality, the Constitution makes fraternity as one of the
foremost objectives to be achieved in a country like ours composed of many races,
religions, languages and cultures. It serves as a source of togetherness, promoting
unity in diversity. The Constitution promotes a sense of fraternity through single
citizenship. Also, article 51A of the Constitution makes it a Fundamental duty of
every citizen to promote harmony and spirit of brotherhood among themselves by
transcending religious, linguistic, regional or sectional diversities.
Dignity of the Individual: Our Constitution acknowledges that all citizens, men and women,
equally have the right to grow and progress. The Constitution seeks to achieve this object by
guaranteeing equal fundamental rights to each individual and by making the State under the
Directive Principles, to direct its policies towards securing the citizens, men and women
equally, an adequate means of livelihood, equal pay for equal work, and just and humane
conditions of work.
Unity and Integrity: Our Constitution expects from all citizens of India to uphold
and protect the unity and integrity of the country as a matter of duty. The Constitution
lays emphasis on the ideal of fraternity which would foster unity amongst the citizens.
Article 1 of Constitution describes India as a ‘Union of States’ to make it clear that
States have no right to secede from the Union. This provision aims to overcome the
hindrances in national integration such as regionalism, communalism, linguism,
casteism and secessionism, etc.
Like any other part of the Constitution, the Preamble was also enacted by the Constituent
Assembly, but, after the rest of the Constitution was already enacted. The reason for inserting
the Preamble at the end was to ensure that it was in conformity with the Constitution as
adopted by the Constituent Assembly. While forwarding the Preamble for votes, the president
of the Constituent Assembly said, ‘The question is that Preamble stands part of the
Constitution’ .
The motion was then adopted. Hence, the current opinion held by the Supreme Court that the
Preamble is a part of the Constitution, is in consonance with the opinion of the founding
fathers of the Constitution. However, two things should be noted:
The Preamble is neither a source of power to legislature nor a prohibition upon the
powers of legislature.
It is non-justiciable, that is, its provisions are not enforceable in courts of law.
The Preamble has been amended only once so far, in 1976, by the 42nd Constitutional
Amendment Act, which has added three new words— Socialist, Secular and Integrity—to the
Preamble. This amendment was held to be valid.
2.5 Formation of State
Union of States
Articles 1 to 4 under Part-I of the Constitution deal with the Union and its territory. Article 1
describes India, that is, Bharat as a ‘Union of States’ rather than a ‘Federation of States’. This
provision deals with two things: one, name of the country, and two, type of polity.
There was no unanimity in the Constituent Assembly with regard to the name of the country.
Some members suggested the traditional name (Bharat) while other advocated the modern
name (India). Hence, the Constituent Assembly had to adopt a mix of both (‘India, that is,
Bharat’).
Secondly, the country is described as ‘Union’ although its Constitution is federal in structure.
According to Dr B R Ambedkar, the phrase ‘Union of States’ has been preferred to
‘Federation of States’ for two reasons: one, the Indian Federation is not the result of an
agreement among the states like the American Federation; and two, the states have no right to
secede from the federation. The federation is a Union because it is indestructible. The country
is an integral whole and divided into different states only for the convenience of
administration.
According to Article 1, the territory of India can be classified into three categories:
1. Territories of the states
2. Union territories
3. Territories that may be acquired by the Government of India at any time.
The names of states and union territories and their territorial extent are mentioned in the first
schedule of the Constitution. At Present India has 8 Union Territories and 28 States.
Notably, the ‘Territory of India’ is a wider expression than the ‘Union of India’ because the
latter includes only states while the former includes not only the states but also union
territories and territories that may be acquired by the Government of India at any future time.
The states are the members of the federal system and share a distribution of powers with the
Centre. The union territories and the acquired territories, on the other hand, are directly
administered by the Central government. Article 2 empowers the Parliament to ‘admit into
the Union of India, or establish, new states on such terms and conditions as it thinks fit’.
Thus, Article 2 grants two powers to the Parliament: (a) the power to admit into the Union of
India new states; and (b) the power to establish new states. Notably, Article 2 relates to the
admission or establishment of new states that are not part of the Union of India. Article 3, on
the other hand, relates to the formation of or changes in the existing states of the Union of
India. In other words, Article 3 deals with the internal re-adjustment inter se of the territories
of the constituent states of the Union of India.
Evolution of States and Union Territories
At the time of independence, India comprised two categories of political units, namely, the
British provinces (under the direct rule of British government) and the princely states (under
the rule of native princes but subject to the paramountcy of the British Crown). The Indian
Independence Act (1947) created two independent and separate dominions of India and
Pakistan and gave three options to the princely states viz., joining India, joining Pakistan or
remaining independent. Of the 552 princely states situated within the geographical
boundaries of India, 549 joined India and the remaining (Hyderabad, Junagarh and Kashmir)
refused to join India. However, in course of time, they were also integrated with India—
Hyderabad by means of police action, Junagarh by means of referendum and Kashmir by the
Instrument of Accession.
In 1950, the Constitution contained a four-fold classification of the states of the Indian Union
—Part A, Part B, Part C and Part D State . In all, they numbered 29. Part-A states comprised
nine erstwhile governor’s provinces of British India. Part-B states consisted of nine erstwhile
princely states with legislatures. Part-C states consisted of erstwhile chief commissioner’s
provinces of British India and some of the erstwhile princely states. These Part-C states (in all
10 in number) were centrally administered. The Andaman and Nicobar Islands were kept as
the solitary Part-D state.
Dhar Commission and JVP Committee
The integration of princely states with the rest of India has purely an ad hoc arrangement.
There has been a demand from different regions, particularly South India, for reorganisation
of states on linguistic basis. Accordingly, in June 1948, the Government of India appointed
the Linguistic Provinces Commission under the chairmanship of S K Dhar to examine the
feasibility of this. The commission submitted its report in December 1948 and recommended
the reorganisation of states on the basis of administrative convenience rather than linguistic
factor. This created much resentment and led to the appointment of another Linguistic
Provinces Committee by the Congress in December 1948 itself to examine the whole
question afresh. It consisted of Jawaharlal Nehru, Vallahbhai Patel and PattabhiSitaramayya
and hence, was popularly known as JVP Committee. It submitted its report in April 1949 and
formally rejected language as the basis for reorganisation of states. However, in October
1953, the Government of India was forced to create the first linguistic state, known as Andhra
state, by separating the Telugu speaking areas from the Madras state. This followed a
prolonged popular agitation and the death of PottiSriramulu, a Congress person of standing,
after a 56-day hunger strike for the cause.
Fazl Ali Commission
The creation of Andhra state intensified the demand from other regions for creation of states
on linguistic basis. This forced the Government of India to appoint (in December 1953) a
three-member States Reorganisation Commission under the chairmanship of Fazl Ali to re-
examine the whole question. Its other two members were K M Panikkar and H N Kunzru. It
submitted its report in September 1955 and broadly accepted language as the basis of
reorganisation of states. But, it rejected the theory of ‘one language– one state’. Its view was
that the unity of India should be regarded as the primary consideration in any redrawing of
the country’s political units. It identified four major factors that can be taken into account in
any scheme of reorganisation of states:
(a) Preservation and strengthening of the unity and security of the country.
(b) Linguistic and cultural homogeneity.
(c) Financial, economic and administrative considerations.
(d) Planning and promotion of the welfare of the people in each state as well as of the nation
as a whole.
The commission suggested the abolition of the four-fold classification of states under the
original Constitution and creation of 16 states and 3 centrally administered territories. The
Government of India accepted these recommendations with certain minor modifications. By
the States Reorganisation Act (1956) and the 7th Constitutional Amendment Act (1956), the
distinction between Part-A and Part-B states was done away with and Part-C states were
abolished. Some of them were merged with adjacent states and some other were designated
as union territories. As a result, 14 states and 6 union territories were created on November 1,
1956.
The States Reorganisation Act of 1956 established the new state of Kerala by merging the
Travancore – Cochin State with the Malabar District of Madras state and Kasargode of South
Canara (Dakshina Kannada). It merged the Telugu-speaking areas of Hyderabad state with
the Andhra state to create the Andhra Pradesh state. Further, it merged the Madya Bharat
state, Vindya Pradesh state and Bhopal state into the Madya Pradesh state. Similarly, it
merged the Saurashtra state and Kutch state into that of the Bombay state, the Coorg state
into that of Mysore state; the Patiala and East Punjab States Union (Pepsu) into that of Punjab
state; and the Ajmer state into that of Rajastan state. Moreover, it created the new union
territory of Laccadive, Minicoy and Amindivi Islands from the territory detached from the
Madras state.
New States and Union Territories Created After 1956
Even after the large-scale reorganisation of the states in 1956, the political map of India
underwent continuous change due to the pressure of popular agitations and political
conditions. The demand for the creation of some more states on the basis of language or
cultural homogeneity resulted in the bifurcation of existing states.
Maharashtra and Gujarat
In 1960, the bilingual state of Bombay was divided 8 into two separate states—Maharashtra
for Marathi-speaking people and Gujarat for Gujarati-speaking people. Gujarat was
established as the 15th state of the Indian Union.
Dadra and Nagar Haveli
The Portuguese ruled this territory until its liberation in 1954. Subsequently, the
administration was carried on till 1961 by an administrator chosen by the people themselves.
It was converted into a union territory of India by the 10th Constitutional Amendment Act,
1961.
Goa, Daman and Diu
India acquired these three territories from the Portuguese by means of a police action in
1961. They were constituted as a union territory by the 12th Constitutional Amendment Act,
1962. Later, in 1987, Goa was conferred a statehood. Consequently, Daman and Diu was
made a separate union territory.
Puducherry
The territory of Puducherry comprises the former French establishments in India known as
Puducherry, Karaikal, Mahe and Yanam. The French handed over this territory to India in
1954. Subsequently, it was administered as an ‘acquired territory’, till 1962 when it was
made a union territory by the 14th Constitutional Amendment Act.
Nagaland In 1963, the State of Nagaland was formed 10 by taking the Naga Hills and
Tuensang area out of the state of Assam. This was done to satisfy the movement of the hostile
Nagas. However, before giving Nagaland the status of the 16th state of the Indian Union, it
was placed under the control of governor of Assam in 1961.
Haryana, Chandigarh and Himachal Pradesh
In 1966, the State of Punjab was bifurcated 11 to create Haryana, the 17th state of the Indian
Union, and the union territory of Chandigarh. This followed the demand for a separate ‘Sikh
Homeland’ (Punjabi Subha) raised by the Akali Dal under the leadership of Master Tara
Singh. On the recommendation of the Shah Commission (1966), the punjabi-speaking areas
were constituted into the unilingual state of Punjab, the Hindi-speaking areas were
constituted into the State of Haryana and the hill areas were merged with the adjoining union
territory of Himachal Pradesh. In 1971, the union territory of Himachal Pradesh was elevated
12 to the status of a state (18th state of the Indian Union).
Manipur, Tripura and Meghalaya
In 1972, the political map of Northeast India underwent a major change. 13 Thus, the two
Union Territories of Manipur and Tripura and the Sub-State of Meghalaya got statehood and
the two union territories of Mizoram and Arunachal Pradesh (originally known as North-East
Frontier Agency—NEFA) came into being. With this, the number of states of the Indian
Union increased to 21 (Manipur 19th, Tripura 20th and Meghalaya 21st). Initially, the 22nd
Constitutional Amendment Act (1969) created Meghalaya as an ‘autonomous state’ or
‘substate’ within the state of Assam with its own legislature and council of ministers.
However, this did not satisfy the aspirations of the people of Meghalaya. The union territories
of Mizoram and Arunachal Pradesh were also formed out of the territories of Assam.
Sikkim
Till 1947, Sikkim was an Indian princely state ruled by Chogyal. In 1947, after the lapse of
British paramountcy, Sikkim became a ‘protectorate’ of India, whereby the Indian
Government assumed responsibility for the defence, external affairs and communications of
Sikkim. In 1974, Sikkim expressed its desire for greater association with India. Accordingly,
the 35th Constitutional Amendment Act (1974) was enacted by the parliament. This
amendment introduced a new class of statehood under the constitution by conferring on
Sikkim the status of an ‘associate state’ of the Indian Union. For this purpose, a new Article
2A and a new schedule (Tenth Schedule containing the terms and conditions of association)
were inserted in the Constitution. This experiment, however, did not last long as it could not
fully satisfy the aspirations of the people of Sikkim. In a referendum held in 1975, they voted
for the abolition of the institution of Chogyal and Sikkim becoming an integral part of India.
Consequently, the 36th Constitutional Amendment Act (1975) was enacted to make Sikkim a
full-fledged state of the Indian Union (the 22nd state). This amendment amended the First
and the Fourth Schedules to the Constitution and added a new Article 371-F to provide for
certain special provisions with respect to the administration of Sikkim. It also repealed
Article 2A and the Tenth Schedule that were added by the 35th Amendment Act of 1974.
Mizoram, Arunachal Pradesh and Goa
In 1987, three new States of Mizoram, 14 Arunachal Pradesh 15 and Goa 16 came into being
as the 23rd, 24th and 25th states of the Indian Union respectively. The Union Territory of
Mizoram was conferred the status of a full state as a sequel to the signing of a memorandum
of settlement (Mizoram Peace Accord) in 1986 between the Central government and the
Mizo National Front, ending the two-decade-old insurgency. Arunachal Pradesh had also
been a union territory from 1972. The State of Goa was created by separating the territory of
Goa from the Union Territory of Goa, Daman and Diu.
Chhattisgarh, Uttarakhand and Jharkhand
In 2000, three more new States of Chhattisgarh, 17 Uttarakhand 18 and Jharkhand 19 were
created out of the territories of Madhya Pradesh, Uttar Pradesh and Bihar respectively. These
became the 26th, 27th and 28th states of the Indian Union respectively.
Telangana
In 2014, the new state of Telangana came into existence as the 29 th state of the Indian
Union. It was carved out of the territories of Andhra Pradesh. The Andhra state Act of 1953
formed the first linguistic state of India, known as the state of Andhra, by taking out the
Telugu speaking areas from the State of Madras (now Tamil Nadu), Kurnool was the capital
of Andhra state and the state high court was established at Guntur. The States Reorganisation
Act of 1956 merged the Telugu-speaking areas of Hyderabad state with the Andhra state to
create the enlarged Andhra Pradesh state. The capital of the state was shifted to Hyderabad.
Again, the Andhra Pradesh Reorganisation Act of 2014 bifurcated the Andhra Pradesh into
two separate states, namely, the Andhra Pradesh (residuary) and the Telangana. Hyderabad is
made the joint capital for both the states for a period of 10 years. During this period, the
Andhra Pradesh should establish its own separate capital. Similarly, the Andhra Pradesh High
Court is renamed as the Hyderabad High Court (High Court of Judicature at Hyderabad) and
is made common for both the states till a separate High Court is set-up for the State of
Andhra Pradesh. Thus, the number of states and union territories increased from 14 and 6 in
1956 to 29 and 7 in 2014 respectively.
Ladakh&Jammu and Kashmir
Ladakh&Jammu and Kashmir became a Union Territory on 31st October 2019. The Union
Territory of Ladakh comprises two districts namely Leh and Kargil. It is renowned for its
remote mountain beauty and distinct culture. The UT of Ladakh shall comprises of two
districts namely Leh and Kargil. Jammu and Kashmir
Jammu and Kashmir is a region administered by India as a union territory, and constituting
the southern portion of the larger Kashmir region, which has been the subject of a dispute
between India and Pakistan since 1947, and between India and China since 1962. The region
of Jammu and Kashmir is separated by the Line of Control from the Pakistani-
administered territories of Azad Kashmir and Gilgit-Baltistan in the west and north
respectively. It lies to the north of the Indian states of Himachal Pradesh and Punjab and to
the west of Ladakh, which is also subject to the dispute as a part of Kashmir, and
administered by India as a union territory.
Provisions for the formation of the union territory of Jammu and Kashmir were contained
within the Jammu and Kashmir Reorganisation Act, 2019, which was passed by both houses
of the Parliament of India in August 2019. The act re-constituted the erstwhile state of Jammu
and Kashmir as two union territories, 'Jammu and Kashmir' and 'Ladakh', with effect from 31
October 2019.
Change of Names
The names of some states and union territories have also been changed. The United
Provinces was the first state to have a new name. It was renamed ‘Uttar Pradesh’ in 1950. In
1969, Madras was renamed ‘Tamil Nadu’. Similarly, in 1973, Mysore was renamed
‘Karnataka’. In the same year, Laccadive, Minicoy and Amindivi Islands were renamed
‘Lakshadweep’. In 1992, the Union Territory of Delhi was redesignated as the National
Capital Territory of Delhi (without being conferred the status of a full-fledged state) by the
69th Constitutional Amendment Act, 1991. In 2006, Uttaranchal was renamed as
‘Uttarakhand’. In the same year, Pondicherry was renamed as ‘Puducherry’. In 2011, Orissa
was renamed as ‘Odisha’.
At Present
India comprises 28 States and 8 Union Territories. They are: Andhra Pradesh, Assam,
Arunachal Pradesh, Bihar, Chhattisgarh, Goa, Gujarat, Haryana, Himachal Pradesh,
Jharkhand, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Manipur, Meghalaya,
Mizoram, Nagaland, Odisha, Punjab, Rajasthan, Sikkim, Tamil Nadu, Telangana, Tripura,
Uttarakhand, Uttar Pradesh and West Bengal.
Union Territories are: Andaman and Nicobar Islands, Chandigarh, Dadra and Nagar Haveli
and Daman and Diu, National Capital Territory of Delhi, Jammu and Kashmir, Lakshadweep,
Ladakh and Puducherry.
2.6 Citizenship
Citizenship signifies the relationship between individual and state. Like any other modern
state, India has two kinds of people—citizens and aliens. Citizens are full members of the
Indian State and owe allegiance to it. They enjoy all civil and political rights. Citizenship is
an idea of exclusion as it excludes non-citizens. There are two well-known principles for the
grant of citizenship: While ‘jus soli’ confers citizenship on the basis of place of birth,
‘jussanguinis’ gives recognition to blood ties. From the time of the Motilal Nehru Committee
(1928), the Indian leadership was in favour of the enlightened concept of jus soli. The racial
idea of jus sanguinis was also rejected by the Constituent Assembly as it was against the
Indian ethos.
Constitutional Provisions
Citizenship is listed in the Union List under the Constitution and thus is under the exclusive
jurisdiction of Parliament. The Constitution does not define the term ‘citizen’ but details of
various categories of persons who are entitled to citizenship are given in Part 2 (Articles 5 to
11). Unlike other provisions of the Constitution, which came into being on January 26, 1950,
these articles were enforced on November 26, 1949 itself, when the Constitution was
adopted.
Article 5: It provided for citizenship on commencement of the Constitution. All those
domiciled and born in India were given citizenship. Even those who were domiciled but not
born in India, but either of whose parents was born in India, were considered citizens.
Anyone who had been an ordinary resident for more than five years, too, was entitled to
apply for citizenship.
Article 6: It provided rights of citizenship of certain persons who have migrated to India
from Pakistan. Since Independence was preceded by Partition and migration, Article 6 laid
down that anyone who migrated to India before July 19, 1949, would automatically become
an Indian citizen if either of his parents or grandparents was born in India. But those who
entered India after this date needed to register themselves.
Article 7: Provided Rights of citizenship of certain migrants to Pakistan. Those who had
migrated to Pakistan after March 1, 1947 but subsequently returned on resettlement permits
were included within the citizenship net. The law was more sympathetic to those who
migrated from Pakistan and called them refugees than to those who, in a state of confusion,
were stranded in Pakistan or went there but decided to return soon.
Article 8: Provided Rights of citizenship of certain persons of Indian origin residing outside
India. Any Person of Indian Origin residing outside India who, or either of whose parents or
grandparents, was born in India could register himself or herself as an Indian citizen with
Indian Diplomatic Mission.
Article 9: Provided that if any person voluntarily acquired the citizenship of a foreign State
will no longer be a citizen of India.
Article10: It says that every person who is or is deemed to be a citizen of India under any of
the foregoing provisions of this Part shall, subject to the provisions of any law that may be
made by Parliament, continue to be such citizen.
Article 11: It empowers Parliament to make any provision with respect to the acquisition and
termination of citizenship and all matters relating to it.
Acquisition and Determination of Indian Citizenship
There are four ways in which Indian citizenship can be acquired: birth, descent, registration
and naturalisation. The provisions are listed under the Citizenship Act, 1955.
By Birth: Every person born in India on or after 26.01.1950 but before 01.07.1987 is an
Indian citizen irrespective of the nationality of his/her parents.
Every person born in India between 01.07.1987 and 02.12.2004 is a citizen of India given
either of his/her parents is a citizen of the country at the time of his/her birth.
Every person born in India on or after 3.12.2004 is a citizen of the country given both his/her
parents are Indians or at least one parent is a citizen and the other is not an illegal migrant at
the time of birth.
By Registration: Citizenship can also be acquired by registration. Some of the mandatory
rules are:
A person of Indian origin who has been a resident of India for 7 years before applying for
registration. A person of Indian origin who is a resident of any country outside undivided
India.
A person who is married to an Indian citizen and is ordinarily resident for 7 years before
applying for registration.
Minor children of persons who are citizens of India.
By Descent: A person born outside India on or after January 26, 1950 is a citizen of India by
descent if his/her father was a citizen of India by birth.
A person born outside India on or after December 10, 1992, but before December 3, 2004 if
either of his/her parent was a citizen of India by birth.
If a person born outside India or after December 3, 2004 has to acquire citizenship, his/her
parents have to declare that the minor does not hold a passport of another country and his/her
birth is registered at an Indian consulate within one year of birth.
By Naturalisation: A person can acquire citizenship by naturalisation if he/she is ordinarily
resident of India for 12 years (throughout 12 months preceding the date of application and 11
years in the aggregate) and fulfils all qualifications in the third schedule of the Citizenship
Act.
The Act does not provide for dual citizenship or dual nationality. It only allows citizenship
for a person listed under the provisions above ie: by birth, descent, registration or
naturalisation.
The act has been amended four times — in 1986, 2003, 2005, and 2015. Through these
amendments Parliament has narrowed down the wider and universal principles of citizenship
based on the fact of birth.
Moreover, the Foreigners Act places a heavy burden on the individual to prove that he/she is
not a foreigner.
1986 amendment: Unlike the constitutional provision and the original Citizenship Act that
gave citizenship on the principle of jus soli to everyone born in India, the 1986 amendment to
Section 3 was less inclusive.
The amendment has added the condition that those who were born in
India on or after January 26, 1950 but before July 1, 1987, shall be Indian
citizen.
Those born after July 1, 1987 and before December 4, 2003, in addition
to one’s own birth in India, can get citizenship only if either of his
parents was an Indian citizen at the time of birth.
2003 amendment: The amendment made the above condition more stringent, keeping in
view infiltration from Bangladesh. Now the law requires that for those born on or after
December 4, 2004, in addition to the fact of their own birth, both parents should be Indian
citizens or one parent must be Indian citizen and other should not be an illegal migrant.
With these restrictive amendments, India has almost moved towards the narrow principle of
jus sanguinis or blood relationship.
This lays down that an illegal migrant cannot claim citizenship by naturalisation or
registration even if he has been a resident of India for seven years.
Citizenship (Amendment) Bill 2019: The amendment proposes to permit members of six
communities — Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Pakistan,
Bangladesh and Afghanistan — to continue to live in India if they entered India before
December 14, 2014.
It also reduces the requirement for citizenship from 11 years to just 6 years.
Two notifications also exempted these migrants from the Passport Act and Foreigners
Act.
A large number of organisations in Assam protested against this Bill as it may grant
citizenship to Bangladeshi Hindu illegal migrants.
The justification given for the bill is that Hindus and Buddhists are minorities in
Bangladesh, and fled to India to avoid religious persecution, but Muslims are a
majority in Bangladesh and so the same cannot be said about them.
Conclusion
Giving concession of six years for residence based only on religion is against the
tenets of secularism. This should be dropped to stand the test of ‘basic structure
doctrine’.
India, as a country which follows the ideology of ‘VasudhaivaKutumbakam’, should
not be hasty in taking decisions that can disenfranchise her citizens – contradicting its
centuries-followed values.
The need of the hour is that the Union Government should clearly chart out the
course of action regarding the fate of excluded people from final NRC of Assam and
political parties should refrain from colouring the entire NRC process through
electoral prospects that may snowball into communal violence.
An overly legal approach will only produce more tension, insecurity and anxiety.
Exercise
1. Write an note on features of constitution
2. Explain preamble
3. Write on Indian citizenship
4. Explain about formation of the states.
5. Explain about fundamental rights.
6. Write about the sovernity in preamble.
7. Write note on secularism
8. Write on connection of preamble with constitution.
9. Dhar commission and JVP committee. Explain
10. Write on Fzal Ali commission.
11. Write on Union Territory.
12. Write on formations of states in India.
13. Article provisions on citizenship. Elaborate.
14. Acquisition and determination of citizenship. Elucidate.
UNIT – 2
2.1 INTRODUCTION
2.2 FUNDAMENTAL RIGHT
2.3 DIRECTIVE PRINCIPAL OF STATE POLICY
2.4 FUNDAMENTAL DUTIES
UNIT-2
Objectives.
1. Introduction About Fundamental Rights and Duties and DPSP.
2. Explaining Nature, Significance and Articles Included in The Fundamental Duties.
3. Elaborating Directive Principle of State Policy.
4. Elucidate Fundamental Duties.
2.1 INTRODUCTION
The Fundamental Rights, Directive Principles of State Policy and Fundamental Duties are
sections of the Constitution of India that prescribe the fundamental obligations of the states to
its citizens and the duties and the rights of the citizens to the State. These sections comprise a
constitutional bill of rights for government policy-making and the behaviour and conduct of
citizens. These sections are considered vital elements of the constitution, which was
developed between 1947 and 1949 by the Constituent Assembly of India.
The Fundamental Rights are defined as the basic human rights of all citizens. These
rights, defined in Part III of the Constitution, applied irrespective of race, place of
birth, religion, caste, creed, or gender. They are enforceable by the courts, subject to
specific restrictions.
The Directive Principles of State Policy are guidelines for the framing of laws by the
government. These provisions, set out in Part IV of the Constitution, are not
enforceable by the courts, but the principles on which they are based are fundamental
guidelines for governance that the State is expected to apply in framing policies and
passing laws.
The Fundamental Duties' are defined as the moral obligations of all citizens to help
promote a spirit of patriotism and to uphold the unity of India. These duties set out in
Part IV–A of the Constitution, concern individuals and the nation. Like the Directive
Principles, they are not enforceable by courts unless otherwise made enforceable by
parliamentary law.
Relationship between the Fundamental Rights, Directive Principles and Fundamental
Duties
The Directive Principles have been used to uphold the Constitutional validity of legislations
in case of a conflict with the Fundamental Rights.
Article 1C, added by the 25th Amendment in 1971, provided that any law made to
give effect to the Directive Principles in Article 39(b)–(c) would not be invalid on the
grounds that they derogated from the Fundamental Rights conferred by Articles 14,
19 and 21.
The application of this article was sought to be extended to all the Directive Principles
by the 42nd Amendment in 1976, but the Supreme Court struck down the extension as
void on the ground that it violated the basic structure of the Constitution.
The Fundamental Rights and Directive Principles have also been used together in
forming the basis of legislation for social welfare. The Supreme Court, after the
judgement in the KesavanandaBharati case, has adopted the view of the Fundamental
Rights and Directive Principles being complementary to each other, each
supplementing the other's role in aiming at the same goal of establishing a welfare
state by means of social revolution.
Similarly, the Supreme Court has used the Fundamental Duties to uphold the
Constitutional validity of statutes which seeks to promote the objects laid out in the
Fundamental Duties. These Duties have also been held to be obligatory for all
citizens, subject to the State enforcing the same by means of a valid law.
The Supreme Court has also issued directions to the State in this regard, with a view
towards making the provisions effective and enabling a citizen to properly perform
their duties
2.2 FUNDAMENTAL RIGHTS
The Fundamental Rights are enshrined in Part III of the Constitution from Articles 12 to 35.
In this regard, the framers of the Constitution derived inspiration from the Constitution of
USA. Part III of the Constitution is rightly described as the Magna Carta of India. It contains
a very long and comprehensive list of ‘justiciable’ Fundamental Rights. In fact, the
Fundamental Rights in our Constitution are more elaborate than those found in the
Constitution of any other country in the world, including the USA.
The Fundamental Rights are guaranteed by the Constitution to all persons without any
discrimination. They uphold the equality of all individuals, the dignity of the individual, the
larger public interest and unity of the nation. The Fundamental Rights are meant for
promoting the ideal of political democracy. They prevent the establishment of an
authoritarian and despotic rule in the country, and protect the liberties and freedoms of the
people against the invasion by the State. They operate as limitations on the tyranny of the
executive and arbitrary laws of the legislature.
In short, they aim at establishing ‘a government of laws and not of men’. The Fundamental
Rights are named so because they are guaranteed and protected by the Constitution, which is
the fundamental law of the land. They are ‘fundamental’ also in the sense that they are most
essential for the all-round development (material, intellectual, moral and spiritual) of the
individuals.
Originally, the Constitution provided for seven Fundamental Rights,
1. Right to equality (Articles 14–18)
2. Right to freedom (Articles 19–22)
3. Right against exploitation (Articles 23–24)
4. Right to freedom of religion (Articles 25–28)
5. Cultural and educational rights (Articles 29–30)
6. Right to property (Article 31)
7. Right to constitutional remedies (Article 32).
However, the right to property was deleted from the list of Fundamental Rights by the 44th
Amendment Act, 1978. It is made a legal right under Article 300-A in Part XII of the
Constitution. So at present, there are only six Fundamental Rights.
Significance of Fundamental Rights
In spite of the above criticism and shortcomings, the Fundamental Rights are
significant in the following respects:
1. They constitute the bedrock of democratic system in the country.
2. They provide necessary conditions for the material and moral protection
of man.
3. They serve as a formidable bulwark of individual liberty.
4. They facilitate the establishment of rule of law in the country.
5. They protect the interests of minorities and weaker sections of society.
6. They strengthen the secular fabric of the Indian State.
7. They check the absoluteness of the authority of the government.
8. They lay down the foundation stone of social equality and social justice.
9. They ensure the dignity and respect of individuals.
10. They facilitate the participation of people in the political and
administrative process.
The Fundamental Rights Through Articles
Right to equality (Articles 14–18).
Article 14: Equality before law.
Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth.
Article 16: Equality of opportunity in matters of public employment
Article 17: Abolition of untouchability.
Article 18: Abolition of titles.
2. Right to freedom (Articles 19–22).
Article 19: Protection of certain rights regarding freedom of speech, etc.
Article 20: Protection in respect of conviction for offences
Article 21: Protection of life and personal liberty.
Article 21a: Right to education
Article 22: Protection against arrest and detention in certain cases.
3. Right against exploitation (Articles 23–24)
Article 23: Prohibition of traffic in human beings and forced labour.
Article 24: Prohibition of employment of children in factories, etc.
4. Right to freedom of religion (Articles 25–28)
Article 25: Freedom of conscience and free profession, practice and propagation of
religion
Article 26: Freedom to manage religious affairs.
Article 27: Freedom as to payment of taxes for promotion of any particular religion
Article 28: Freedom as to attendance at religious instruction or religious worship in
certain educational institutions
5. Cultural and educational rights (Articles 29–30)
Article 29: Protection of interests of minorities.
Article 30: Right of minorities to establish and administer educational institutions.
6. Right to property (Article 31)
Article 31: compulsory acquisition of property.
7. Right to constitutional remedies (Article 32).
Article 32: Remedies for enforcement of rights conferred by this part.
Elaborated form of Fundamental Rights.
ARTICLE 14: Equality before Law
The State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India.
ARTICLE 15: Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex
or Place of Birth
(1)The State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them.
(2) No citizen shall, on ground only of religion, race, caste, sex, place of birth or any of them,
be subject to any disability, liability, restriction or condition with regard to –
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained whole
or partly out of State funds or dedicated to the use of general public.
(3) Nothing in this article shall prevent the State from making any special provision for
women and children.
(4) Nothing in this article or in clause (2) or article 29 shall prevent the State from making
any special provision for the advancement of any socially and educationally backward classes
of citizens or for the Scheduled Castes and the Scheduled Tribes.
ARTICLE 16: Equality of Opportunity in Matters of Public Employment
(1) There shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect of, any
employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in
regard to a class or classes of employment or appointment to an office under the Government
of, or any local or other authority within, a State or Union territory, any requirement as to
residence within that State or Union territory prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for
the reservation of appointments or posts in favour of any backward class of citizens which, in
the opinion of the State, is not adequately represented in the services under the State.
(4A) Nothing in this article shall prevent the State from making any provision for reservation
in matters of promotion to any class or classes of posts in the services under the State in
favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State,
are not adequately represented in the services under the State.
(5) Nothing in this article shall affect the operation of any law which provides that the
incumbent of an office in connection with the affairs of any religious or denominational
institution or any member of the governing body thereof shall be a person professing a
particular religion or belonging to a particular denomination.
ARTICLE 17: Abolition of Untouchability
“Untouchability” is abolished and its practice in any form is forbidden. The enforcement of
any disability arising out of “Untouchability” shall be an offence punishable in accordance
with law.
ARTICLE 18: Abolition of Titles
(1) No title, not being a military or academic distinction, shall be conferred by the State.
(2) No citizen of India shall accept any title from any foreign State.
(3) No person who is not a citizen of India shall, while he holds any office of profit or
trust under the State, accept without the consent of the President any title from any
foreign State.
(4) No person holding any office of profit or trust under the State shall, without the
consent of the President, accept any present, emolument, or office of any kind from or
under any foreign State.
ARTICLE 19: Protection of Certain Rights Regarding Freedom of Speech, Etc.
(1) All citizens shall have the right –
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) to practice any profession, or to carry on any occupation, trade or business.
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or
prevent the State from making any law, in so far as such law imposes reasonable restrictions
on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty
and integrity of India, the security of the State, friendly relations with foreign States, public
order, decency or morality, or in relation to contempt of court, defamation or incitement to an
offence.
(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law
in so far as it imposes, or prevent the State from making any law imposing, in the interest of
the sovereignty and integrity of India or public order, reasonable restrictions on the right
conferred by the said sub-clause.
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law
in so far as it imposes, or prevent the State from making any law imposing, in the interests of
the sovereignty and integrity of India or public order or morality, reasonable restrictions on
the exercise of the right conferred by the said sub-clause.
(5) Nothing in sub-clause (d) and (e) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law imposing,
reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses
either in the interests of the general public or for the protection of the interests of any
Schedule Tribe.
(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law
in so far as it imposes, or prevent the State from making any law imposing, in the interests of
the general public, reasonable restrictions on the exercise of the right conferred by the said
sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any
existing law in so far as it relates to, or prevent the State from making any law relating to, –
(i) the professional or technical qualifications necessary for practising any profession or
carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any
trade, business, industry or service, whether to the exclusion, complete or partial, of citizens
or otherwise.
ARTICLE 20: Protection in Respect of Conviction for Offences
(1) No person shall be convicted of any offence except for violation of a law in force at the
time of the commission of the act charged as an offence, not be subjected to a penalty greater
than that which might have been inflicted under the law in force at the time of the
commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.
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.
Article 21A: Right to education
The State shall provide free and compulsory education to all children of the age of six to
fourteen years in such manner as the State may, by law, determine.
ARTICLE 22: Protection Against Arrest And Detention in Certain Cases
(1) No person who is arrested shall be detained in custody without being informed, as soon as
may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty-four hours of such arrest excluding the time necessary
for the journey from the place of arrest to court of the magistrate and no such person shall be
detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply –
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for preventive
detention.
(4) No law providing for preventive detention shall authorize the detention of a person for a
longer period than three months unless –
(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be
appointed as, Judges of a High Court has reported before the expiration of the said period of
three months that there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorise the detention of any person beyond
the maximum period prescribed by any law made by Parliament under sub-clause (b) of
clause (7); or
(b) such person is detained in accordance with the provisions of any law made by Parliament
under sub-clauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance of an order made under any law providing for
preventive detention, the authority making the order shall, as soon as may be, communicate
to such person the grounds on which the order has been made and shall afford him the earliest
opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order as is referred to in
that clause to disclose facts which such authority considers to be against the public interest to
disclose.
(7) Parliament may by law prescribe –
(a) the circumstances under which, and the class or classes of cases in which, a person may
be detained for a period longer than three months under any law providing for preventive
detention without obtaining the opinion of an Advisory Board in accordance with the
provisions of sub-clause (a) of clause (4);
(b) the maximum period for which any person may in any class or classes of cases be
detained under any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of
clause (4).
ARTICLE 23: Prohibition of Traffic In Human Beings and Forced Labour
(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited
and any contravention of this provision shall be an offence punishable in accordance with
law.
(2) Nothing in this article shall prevent the State from imposing compulsory service for
public purposes, and in imposing such service the State shall not make any discrimination on
ground only of religion, race, caste or class or any of them.
ARTICLE 24: Prohibition of employment of children in factories, etc.
No child below the age of fourteen years shall be employed to work in any factory or mine or
engaged in any other hazardous employment.
ARTICLE 25: Freedom of conscience and free profession, practice and propagation of
religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all
persons are equally entitled to freedom of conscience and the right freely to profess, practice
and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State
from making any law –
(a) regulating or restricting any economic, financial, political or other secular activity which
may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus.
Explanation I: The wearing and carrying of kirpans shall be deemed to be included in the
profession of the Sikh religion.
Explanation II: In sub-Clause (b) of clause (2), the reference to Hindus shall be construed as
including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the
reference to Hindu religious institutions shall be construed accordingly.
ARTICLE 26: Freedom to manage religious affairs
Subject to public order, morality and health, every religious denomination or any section
thereof shall have the right –
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with the law.
ARTICLE 27: Freedom as to payment of taxes for promotion of any particular religion
No person shall be compelled to pay any taxes, the proceeds of which are specifically
appropriated in payment of expenses for the promotion or maintenance of any particular
religion or religious denomination.
ARTICLE 28: Freedom as to attendance at religious instruction or religious worship in
certain educational institutions
(1) No religious instruction shall be provided in any educational institution wholly
maintained out of State funds.
(2) Nothing in clause (1) shall apply to an educational institution which is administered by
the State but has been established under any endowment or trust which requires that religious
instruction shall be imparted in such institution.
(3) No person attending any educational institution recognised by the State or receiving aid
out of State funds shall be required to take part in any religious instruction that may be
imparted in such institution or to attend any religious worship that may be conducted in such
institution or in any premises attached thereto unless such person or, if such person is minor,
his guardian has given his consent thereto.
ARTICLE 29: Protection of interests of minorities
(1) Any section of the citizens residing in the territory of India or any part thereof having a
distinct language, script or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by the
State or receiving aid out of State funds on grounds only of religion, race, caste, language or
any of them.
ARTICLE 30: Right of minorities to establish and administer educational institutions
(1) All minorities, whether based on religion or language, shall have the right to establish
and administer educational institutions of their choice.
(1A) In making any law providing for the compulsory acquisition of any property of
an educational institution established and administered by a minority, referred to in
clause (1), the State shall ensure that the amount fixed by or determined under such
law for the acquisition of such property is such as would not restrict or abrogate the
right guaranteed under that clause.
(2) The State shall not, in granting aid to educational institutions, discriminate against
any educational institution on the ground that it is under the management of a
minority, whether based on religion or language.
ARTICLE 31: Compulsory acquisition of property
ARTICLE 31A: Saving of laws providing for acquisition of estates, etc.
(1) Notwithstanding anything contained in article 13, no law providing for –
(a) the acquisition by the State of any estate or of any rights therein or the
extinguishment or modification of any such rights, or
(b) the taking over of the management of any property by the State for a limited
period either in the public interest or in order to secure the proper management of the
property, or
(c) the amalgamation of two or more corporations either in the public interest or in
order to secure the proper management of any of the corporations, or
(d) the extinguishment or modification of any rights of managing agents, secretaries
and treasurers, managing directors, directors or managers of corporations, or of any
voting rights of share-holders thereof, or
(e) the extinguishment or modification of any rights accruing by virtue of any
agreement, lease or licence for the purpose of searching for, or winning, any mineral
or mineral oil, or the premature termination or cancellation of and such agreement,
lease or licence, shall be deemed to be void on the ground that it is inconsistent with,
or takes away or abridges any of the rights conferred by article 14 or article 19:
Provided that where such law is a law made by the Legislature of a State, the
provisions of this article shall not apply thereto unless such law, having been reserved
for the consideration of the President, has received his assent:
Provided further that where any law makes any provision for the acquisition by the
State of any estate and where any land comprised therein is held by a person under his
personal cultivation, it shall not be lawful for the State to acquire any portion of such
land as is within the ceiling limit applicable to him under any law for the time being
in force or any building or structure standing thereon or appurtenant thereto, unless
the law relating to the acquisition of such land, building or structure, provides for
payment of compensation at a rate which shall not be less than the market value
thereof.
(2) In this article, –
(a) the expression “estate” shall, in relation to any local area, have the same meaning
as that expression or its local equivalent has in the existing law relating to land tenure
in force in that area and shall also include –
(i) any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and
Kerala, any janmam right;
(ii) any land held under ryotwari settlement;
(iii) any land held or let for purposes of agriculture of for purposes ancillary thereto,
including waste land, forest land, land for pasture or sites of buildings and other
structures occupied by cultivators of land, agricultural labourers and village artisans;
(b) the expression “rights”, in relation to an estate, shall include any rights vesting in a
proprietor, sub-proprietor, under-proprietor, tenure-holder, raiyat, under-raiyat or
other intermediary and any rights or privileges in respect of land revenue.
ARTICLE 31B: Validation of certain acts and regulations
Without prejudice to the generality of the provisions contained in article 31A, none of the
Acts and Regulations specified in the Ninth Schedule nor any of the provision thereof shall
be deemed to be void, or even to have become void, on the ground that such Act, Regulation
or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any
provisions of this part, and notwithstanding any judgment, decree or order of any court or
tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of
any competent Legislature to repeal or amend it, continue in force.
ARTICLE 31C: Saving of laws giving effect to certain directive principles
Notwithstanding anything contained in article 13, no law giving effect to the policy of the
State towards securing all or any of the principles laid down in Part IV shall be deemed to be
void on the ground that it is inconsistent with, or takes away or abridges any of the rights
conferred by article 14 or article 19; and no law containing a declaration that it is for giving
effect to such policy shall be called in question in any court on the ground that it does not
give effect to such policy:
Provided that where such law is made by the Legislature of a State, the provisions of this
article shall not apply thereto unless such law, having been reserved for the consideration of
the President, has received his assent.
ARTICLE 31D: SAVING OF LAWS IN RESPECT OF ANTI-NATIONAL
ACTIVITIES
ARTICLE 32: REMEDIES FOR ENFORCEMENT OF RIGHTS CONFERRED BY
THIS PART
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution.
ARTICLE 32A : CONSTITUTIONAL VALIDITY OF STATE LAWS NOT TO BE
CONSIDERED IN PROCEEDINGS UNDER ARTICLE 32
ARTICLE 33: POWER OF PARLIAMENT TO MODIFY THE RIGHTS
CONFERRED BY THIS PART IN THEIR APPLICATION TO FORCES, ETC.
Parliament may, by law, determine to what extent any of the rights conferred by this Part
shall, in their application to, –
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the maintenance of public order; or
(c) persons employed in any bureau or other organisation established by the State for
purposes of intelligence or counter intelligence; or
(d) persons employed in, or in connection with, the telecommunication systems set up for the
purposes of any Force, bureau or organisation referred to in clauses (a) to (c),
be restricted or abrogated so as to ensure the proper discharge of their duties and the
maintenance of discipline among them.
ARTICLE 34: Restriction on rights conferred by this part while marital law is in force
in any area
Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law
indemnify any person in the service of the Union or of a State or any person in respect of any
act done by him in connection with the maintenance or restoration or order in any area within
the territory of India where martial law was in force or validate any sentence passed,
punishment inflicted, forfeiture ordered or other act done under martial law in such area.
ARTICLE 35: Legislation to give effect to the provisions of this part
Notwithstanding anything in this Constitution, –
(a) Parliament shall have, and the Legislature of a State shall not have, power to make
laws –
(i) With respect to any of the matters which under clause (3) of article 16,
clause (3) of article 32, article 33 and article 34 may be provided for by law made by
Parliament; and
(ii) for prescribing punishment for those acts which are declared to be
offences under this part,
and Parliament shall, as soon as may be after the commencement of this Constitution,
make laws for prescribing punishment for the acts referred to in sub-clause (ii);
(b) any law in force immediately before the commencement of this Constitution in the
territory of India with respect to any of the matters referred to in sub-clause (i) of
clause (a) or providing for punishment for any act referred to in sub-clause (ii) of that
clause shall, subject to the terms thereof and to any adaptations and modifications that
may be made therein under article 372, continue in force until altered or repealed or
amended by Parliament. Explanation: In this article, the expression “law in force” has
the same meaning as in article 372.
Writs
Writs are a written order from Supreme Court or High Court that commands
constitutional remedies for Indian Citizens against the violation of their fundamental
rights. Article 32 in the Indian Constitution deals with constitutional remedies that an
Indian citizen can seek from the Supreme Court and High Court against the violation of
his/her fundamental rights. The same article gives the Supreme Court power to issue writs
for the enforcement of rights whereas the High Court has the same power under Article
226.
Types of Writs in India
Supreme Court of India is the defender of the fundamental rights of the citizens. For that,
it has original and wide powers. It issues five kinds of writs for enforcing the fundamental
rights of the citizens. The five types of writs are:
1. Habeas Corpus
2. Mandamus
3. Prohibition
4. Certiorari
5. Quo-Warranto
Criticism of fundamental rights
The Fundamental Rights enshrined in Part III of the Constitution have met with a wide
and varied criticism. The arguments of the critics are:
Excessive Limitations
No Social and Economic Rights
No Clarity
No Permanency
Suspension During Emergency
Expensive Remedy
Preventive Detention
. No Consistent Philosophy
2.3 DIRECTIVE PRINCIPLES OF STATE POLICY
The Directive Principles of the State Policy(DSPS) have been mentioned in the Part IV of the
constitution and covering the articles from Art-36 to Art 51. India. They Called as Novel
Features of the Constitution. It is similar to the Instruments of Instructions mentioned in the
Government of India Act, 1935.
Together with fundamental rights, they are termed as the conscience of the constitution.
‘Directive Principles of State Policy’ denotes the ideals that the State should keep in mind
while formulating policies and enacting laws. These are the constitutional instructions or
recommendations to the State in legislative, executive and administrative matters. Inspired
The Directive Principles of State Policy, embodied in Part IV of the Constitution, are
directions given to the state to guide the establishment of an economic and social democracy,
as proposed by the Preamble. They set forth the humanitarian and socialist instructions that
were the aim of social revolution envisaged in India by the Constituent Assembly. The state
is expected to keep these principles in mind while framing laws and policies, even though
they are non-justiciable in nature. The Directive Principles may be classified under the
following categories: ideals that the state ought to strive towards achieving; directions for the
exercise of legislative and executive power; and rights of the citizens which the State must
aim towards securing.
Despite being non-justiciable, the Directive Principles act as a check on the state; theorised as
a yardstick in the hands of the electorate and the opposition to measure the performance of a
government at the time of an election. Article 37, while stating that the Directive Principles
are not enforceable in any court of law, declares them to be "fundamental to the governance
of the country" and imposes an obligation on the State to apply them in matters of
legislation. Thus, they serve to emphasise the welfare state model of the Constitution and
emphasise the positive duty of the state to promote the welfare of the people by affirming
social, economic and political justice, as well as to fight income inequality and ensure
individual dignity, as mandated
Article 39 lays down certain principles of policy to be followed by the State, including
providing an adequate means of livelihood for all citizens, equal pay for equal work for men
and women, proper working conditions, reduction of the concentration of wealth and means
of production from the hands of a few, and distribution of community resources to "subserve
the common good". These clauses highlight the Constitutional objectives of building
an egalitarian social order and establishing a welfare state, by bringing about a social
revolution assisted by the State, and have been used to support the nationalisation of mineral
resources as well as public utilities. Further, several legislation pertaining to agrarian
reform and land tenure have been enacted by the federal and state governments, in order to
ensure equitable distribution of land resources.
Articles 41–43 mandate the State to endeavour to secure to all citizens the right to work,
a living wage, social security, maternity relief, and a decent standard of living. These
provisions aim at establishing a socialist state as envisaged in the Preamble. Article 43 also
places upon the State the responsibility of promoting cottage industries, and the federal
government has, in furtherance of this, established several Boards for the promotion
of khadi, handlooms etc., in coordination with the state governments. Article 39A requires
the State to provide free legal aid to ensure that opportunities for securing justice are
available to all citizens irrespective of economic or other disabilities. Article 43A mandates
the State to work towards securing the participation of workers in the management of
industries. The State, under Article 46, is also mandated to promote the interests of and work
for the economic uplift of the scheduled castes and scheduled tribes and protect them from
discrimination and exploitation. Several enactments, including two Constitutional
amendments, have been passed to give effect to this provision.
Article 44 encourages the State to secure a uniform civil code for all citizens, by eliminating
discrepancies between various personal laws currently in force in the country. However, this
has remained a "dead letter" despite numerous reminders from the Supreme Court to
implement the provision. Article 45 originally mandated the State to provide free and
compulsory education to children between the ages of six and fourteen years, but after the
86th Amendment in 2002, this has been converted into a Fundamental Right and replaced by
an obligation upon the State to secure childhood care to all children below the age of
six. Article 47 commits the State to raise the standard of living and improve public health,
and prohibit the consumption of intoxicating drinks and drugs injurious to health. As a
consequence, partial or total prohibition has been introduced in several states, but financial
constraints have prevented its full-fledged application.] The State is also mandated by Article
48 to organise agriculture and animal husbandry on modern and scientific lines by improving
breeds and prohibiting slaughter of cattle. Article 48A mandates the State to protect the
environment and safeguard the forests and wildlife of the country, while Article 49 places an
obligation upon the State to ensure the preservation of monuments and objects of national
importance. Article 50 requires the State to ensure the separation of judiciary from executive
in public services, in order to ensure judicial independence, and federal legislation has been
enacted to achieve this objective. The State, according to Article 51, must also strive for the
promotion of international peace and security, and Parliament has been empowered under
Article 253 to make laws giving effect to international treaties.
The DPSPs constitute a very comprehensive economic, social and political programme for a
modern democratic State. They aim at realizing the high ideals of justice, liberty, equality and
fraternity as outlined in the Preamble to the Constitution. They embody the concept of a
Welfare state.
The Directive Principles are non-justiciable in nature, that is, they are not legally
enforceable by the courts for their violation. Therefore, the government (Central, state and
local) cannot be compelled to implement them. Nevertheless, the Constitution (Article 37)
itself says that these principles are fundamental to the governance of the country and it shall
be the duty of the State to apply these principles in making laws.
The provisions of the Directive Principles are broadly classified into-
(a) Socialist principles
1. to promote the welfare of the people by securing a social order permeated by social,
economic and political justice and to minimise inequalities in income, status, facilities
and opportunities. (Art 38)
2. to secure (a) the right to adequate means of livelihood for all citizens; (b) the
equitable distribution of material resources of the community for common good; (c)
prevention of concentration of wealth and means of production; (d) equal pay for
equal work for men and women; (e) preservation of the health and strength of workers
and children against forcible abuse; and (f) opportunities for healthy development of
children. (Art 39)
3. to promote equal justice and to provide free legal aid to the poor. (Art 39A)
4. to secure the right to work, to education and to public assistance in cases of
unemployment, old age, sickness and disablement. (Art 41)
5. to make provision for just and humane conditions for work and maternity relief. (Art
42)
6. to secure a living wage, a decent standard of life and social and cultural opportunities
for all workers (Art 43)
7. to take steps to secure the participation of workers in the management of industries
(Art 43A)
8. to raise the level of nutrition and the standard of living of people and to improve
public health. (Art 47)
(b) Gandhian principles
Based on Gandhian ideology, these include
1. to organize village Panchayats and endow them with necessary powers and authority
to enable them to function as units of self government. (Art 40)
2. to promote cottage industries on an individual or co-operation basis in rural areas.
(Art 43)
3. to promote voluntary formation, autonomous functioning, democratic control, and
professional management of co-operative societies. (Art 43B)
4. to promote the educational and economic interests of SCs, STs and other weaker
sections of the society and to protect them from social injustice and exploitation. (Art
46)
5. to prohibit the consumption of intoxicating drinks and drugs which are injurious to
health. (Art 47)
6. to prohibit slaughter of cows, calves and other milch and drought cattle and to
improve their breeds. (Art 48)
(c) Liberal intellectual principles
These principles represent the ideology of liberalism and direct the state to
1. to secure for all citizens a uniform civil code. (Art 44)
2. to provide early childhood care and education for all children until they complete the
age of 6 years. (Art 45)
3. to organise agricultural and animal husbandry on modern and scientific lines. (Art 48)
4. to protect and improve the environment and to safeguard forests and wildlife. (Art
48A)
5. to protect monuments, places and objects of artistic or historic interest which are
declared to be of national importance. (Art 49)
6. to separate the judiciary from the executive in the public services of the state. (Art 50)
7. to promote international peace and security and maintain just and honourable relations
between nations; to foster respect for international law and treaty obligations, and to
encourage settlement of international disputes by arbitration. (Art 51)
Some Important Articles in DPSPs are :
a. To promote the welfare of the people by securing a social order permeated by justice
— social, economic and political—and to minimise inequalities in income, status,
facilities and opportunities (Article 38).
b. To secure (a) the right to adequate means of livelihood for all citizens; (b) the
equitable distribution of material resources of the community for the common good;
(c) prevention of concentration of wealth and means of production; (d) equal pay for
equal work for men and women; (e) preservation of the health and strength of workers
and children against forcible abuse; and (f) opportunities for healthy development of
children (Article 39).
c. To promote equal justice and to provide free legal aid to the poor (Article 39 A). This
was added by 42nd constitutional amendment act, 1976.
d. To secure the right to work, to education and to public assistance in cases of
unemployment, old age, sickness and disablement (Article 41).
e. To make provision for just and humane conditions for work and maternity relief
(Article 42).
f. To take steps to secure the participation of workers in the management of industries
(Article 43 A). Also added by 42nd constitutional amendment act, 1976.
g. To organise village panchayats and endow them with necessary powers and authority
to enable them to function as units of self-government (Article 40).
h. To promote cottage industries on an individual or co-operation basis in rural areas
(Article 43).
i. To prohibit the consumption of intoxicating drinks and drugs which are injurious to
health (Article 47).
j. To prohibit the slaughter of cows, calves and other milch and draught cattle and to
improve their breeds (Article 48).
k. To secure for all citizens a uniform civil code throughout the country (Article 44).
l. To provide early childhood care and education for all children until they complete the
age of six years (Article 45). Also, amended by the 86th constitutional amendment act,
2002.
m. To separate the judiciary from the executive in the public services of the State (Article
50).
n. To promote international peace and security and maintain just and honourable
relations between nations; to foster respect for international law and treaty
obligations, and to encourage settlement of international disputes by arbitration
(Article 51).
The 86th Amendment Act of 2002 changed the subject-matter of Article 45 and made
elementary education a fundamental right under Article 21A. The amended directive
requires the State to provide early childhood care and education for all children until
they complete the age of six years.
The 97th Amendment Act of 2011 added a new Directive Principle relating to co-
operative societies. It requires the state to promote voluntary formation, autonomous
functioning, democratic control and professional management of co-operative
societies (Article 43B).
The DPSPs are instructions to the State.
CRITICISM OF THE DIRECTIVE PRINCIPLES
No Legal Force
Illogically Arranged
Conservative
Constitutional Conflict
Lack of Clarity
Reactionary in Nature
2.4 FUNDAMENTAL DUTIES
Fundamental Duties are the Part-4 Fundamental Duties (Article-51A).They are a set of 11
guidelines to the citizens. The original constitution did not mention about the FDs. The idea
has been taken from the former Soviet Constitution and now even Russia does not have
them. Probably only Japan is one such major county which has an exclusive chapter on
fundamental duties.
In 1976, the fundamental duties of citizens were added in the Constitution. In 2002, one more
Fundamental Duty was added. They were added on the recommendations of the Swaran
Singh Committee which was constituted by Indira Gandhi in 1975. It recommended only 8
fundamental duties than with pecuniary punishments as well. However, the government did
not welcome the punishments part.
A new part – 4A, A NEW ARTICLE 51A was added by virtue of 42nd constitutional
amendment act, 1976. Ten duties were added to 51A. Presently there are eleven duties.The
11th Fundamental Duty was added by 86th amendment act, 2002.
Following is the list of Fundamental Duties:
(a) To abide by the Constitution and respect its ideals and institutions, the National
Flag and the National Anthem;
(b) To cherish and follow the noble ideals that inspired the national struggle for
freedom;
(c) To uphold and protect the sovereignty, unity and integrity of India;
(d) To defend the country and render national service when called upon to do so;
(e) To promote harmony and the spirit of common brotherhood amongst all the people
of India transcending religious, linguistic and regional or sectional diversities and to
renounce practices derogatory to the dignity of women;
(f) To value and preserve the rich heritage of the country’s composite culture;
(g) To protect and improve the natural environment including forests, lakes, rivers and
wildlife and to have compassion for living creatures;
(h) To develop scientific temper, humanism and the spirit of inquiry and reform;
(i) To safeguard public property and to abjure violence;
(j) To strive towards excellence in all spheres of individual and collective activity so
that the nation constantly rises to higher levels of endeavour and achievement; and
(k) To provide opportunities for education to his child or ward between the age of six
and fourteen years. This duty was added by the 86th Constitutional Amendment Act,
2002.
FEATURES OF THE FUNDAMENTAL DUTIES
Following points can be noted with regard to the characteristics of the Fundamental Duties:
1. Some of them are moral duties while others are civic duties. For instance, cherishing noble
ideals of freedom struggle is a moral precept and respecting the Constitution, National Flag
and National Anthem is a civic duty.
2. They refer to such values which have been a part of the Indian tradition, mythology,
religions and practices. In other words, they essentially contain just a codification of tasks
integral to the Indian way of life.
3. Unlike some of the Fundamental Rights which extend to all persons whether citizens or
foreigners, the Fundamental Duties are confined to citizens only and do not extend to
foreigners.
4. Like the Directive Principles, the fundamental duties are also non justiciable. The
Constitution does not provide for their direct enforcement by the courts. Moreover, there is
not legal sanction against their violation. However, the Parliament is free to enforce them by
suitable legislation.
SIGNIFICANCE OF FUNDAMENTAL DUTIES
In spite of criticisms and opposition, the fundamental duties are considered significant from
the following viewpoints:
1. They serve as a reminder to the citizens that while enjoying their rights, they should
also be conscious of duties they owe to their country, their society and to their fellow
citizens
2. . 2. They serve as a warning against the anti-national and antisocial activities like
burning the national flag, destroying public property and so on.
3. . They serve as a source of inspiration for the citizens and promote a sense of
discipline and commitment among them. They create a feeling that the citizens are not
mere spectators but active participants in the realisation of national goals.
4. . They help the courts in examining and determining the constitutional validity of a
law. In 1992, the Supreme Court ruled that in determining the constitutionality of any
law, if a court finds that the law in question seeks to give effect to a fundamental duty,
it may consider such law to be ‘reasonable’ in relation to Article 14 (equality before
law) or Article 19 (six freedoms) and thus save such law from unconstitutionality.
5. . They are enforceable by law. Hence, the Parliament can provide for the imposition of
appropriate penalty or punishment for failure to fulfil any of them.
CRITICISM OF FUNDAMENTAL DUTIES
The Fundamental Duties mentioned in Part IVA of the Constitution have been criticised on
the following grounds:
1. The list of duties is not exhaustive as it does not cover other important duties like casting
vote, paying taxes, family planning and so on. In fact, duty to pay taxes was recommended by
the Swaran Singh Committee.
2. Some of the duties are vague, ambiguous and difficult to be understood by the common
man. For example, different interpretations can be given to the phrases like ‘noble ideals’,
‘composite culture’, ‘scientific temper’ and so on.
3. They have been described by the critics as a code of moral precepts due to their non-
justiciable character. Interestingly, the Swaran Singh Committee had suggested for penalty or
punishment for the nonperformance of Fundamental Duties.
4. Their inclusion in the Constitution was described by the critics as superfluous. This is
because the duties included in the Constitution as fundamental would be performed by the
people even though they were not incorporated in the Constitution.
5. The critics said that the inclusion of fundamental duties as an appendage to Part IV of the
Constitution has reduced their value and significance. They should have been added after Part
III so as to keep them on par with Fundamental Rights.
Exercise
15. Explain about fundamental rights.
16. Explain DPSP.
17. What do mean by Fundamental duties ?.
18. What is the difference between Fundamental rights and Fundamental duties?
19. What is the relation between DPSP and fundamental write about rights?
20. Write on the relation between Fundamental rights, duties and DPSP.
21. Elaborate Article 21A.
22. Explain Rights against exploitation.
23. Write on rights of Equality.
24. Write on Constitution remedies.
25. Elucidate Article 32.
26. Write a note on Article 17 in the Indian society.
27. Importance of Article 22.
28. Application of Article 26 in the present scenario.
29. Explain Writs.
30. Write the types of Writs.
UNIT-3
5.7 INTRODUCTION
5.8 UNION GOVERNMENT
5.9 UNION EXECUTIVE
5.10 LEGISLATURE AND JUDICIARY
UNIT- 3
Objectives
1. To know about Union Government.
2. Explanation on Union Executive and its powers and functions
3. Detailed study on the relations between Legislature and Judiciary
3.1 INTRODUCTION
Before talking of the Union government, Union Executive and legislature and judiciary, let us
understand the form and nature of the Indian government. India is a form of Parliamentary
Government. It is a form of government in which the executive is responsible and answerable
to the legislative. It is also called the Cabinet Government due to the concentration of
executive powers in the Cabinet. The Executive is a part of the Legislative.
This form of government was basically preferred by the leaders as:
Leaders were aware of such a form of government.
This government was considered a more responsible government as in this form of
government, the executive is answerable to legislative and the legislative is
answerable to the citizens.
This type of government prevents Authoritarianism.
This form helps to get representation from a Diverse Group of people.
This form of government remains laden with the availability of Alternate
Government.
In this form of government, the head of the state holds a ceremonial position and is
the nominal executive. For example, the President
The real head of the State is the Prime Minister, who is the real executive.
There is a majority party rule in such a form of government.
There is always a Parliamentary Opposition to maintain a check on the actions of
the ruling government.
In this form of Government Civil Servants are Independent.
This is a famous concept of government followed in other countries like Japan, Canada,
Britain. This form of government in India was majorly inspired by Britain.
Opposite of such a form of government is the Presidential form of Government. In this
government, the President is answerable to citizens rather than the legislative.
3.2 UNION GOVERNMENT
In Indian constitution, there is a dual polity with a vibrant division of powers between the
Union and the States, each being best within the sphere allocated to it. The States in India are
not the formation of the Centre nor do they draw their authority from the Union Government.
Conversely, like the Union Government, they draw their authority directly from the
Constitution and are free to operate in the field allotted to them by the Constitution. In the
beginning, the Constitution of India has made most extravagant provisions about relationship
between the Union and the States. This was done to reduce the conflicts between the Centre
and the States. But the actual operation of the Centre-State relations for all these years has
given rise to a disagreement about the understanding of arrangements made under the Indian
Constitution. Knockers have expressed doubts about the existing arrangements and demanded
re-allocation and adjustment of the Centre-State relations
The centre government has control over the states through different agencies and varied
techniques are mentioned below:
a. Governor,
b. Directions to the State Government,
c. Delegation of Union functions,
d. All-India services,
e. Grants-in-aid,
f. Inter-State Councils,
g. Inter- State Commerce Commission,
h. Immunity from mutual taxation.
The Constitution of India deals with Union and State executive distinctly but the
provisions follow a common pattern for the Union and the States. The system of
distribution of administrative powers between union and states followed in the
Constitution of India in various administrative fields. In addition to the array of subject
allotted in the VII schedule of Constitution, even in normal time parliament can under
certain circumstances, assume legislative power over a subject falling with in the sphere
exclusively reserved for the states. Beside the power to legislate on a very wide field, the
Constitution confers in the Union Parliament, the constituent power or the power to
initiate amendment of the Constitution.
With reference to Indian Federation, administration is primarily furnished by the state
agencies. Dissimilar to the other federations where both the federal and state government
create their own agencies for the administration of their laws and the subjects allocated to
them in the constitution, even the laws of the union are left to be administered by the state
authorities is order to avoid duplication of administrative machinery. In every federal
constitution, the central and state governments are firmly enclosed and the jurisdiction of the
one excludes the other. The centre is concerned with problems of the union list. The states are
with matters on the state list. There is also provision for the allocation of the powers by the
union to the states and vice versa.
The forte and success of such scheme requires cooperation and coordination between Centre
and States. In India, the central government or the union is responsible for the governance of
the whole country. There should be effective administrative norms between the union and
States. The Supreme Court has demarcated that the executive power of the union is
coexistence with power of the parliament, with this limitation that the executive cannot act
against the provisions of the constitution or of any law made by the parliament.
The Union Government is dependent on the States to give effect to its programmes. The
scheme of distribution of administrative powers has some major objectives. It arms, the union
government with powers to have effective control over administration of the state and
espouses several advices for intergovernmental cooperation and coordination. The executive
powers in relation to any treaty or agreement has been discussed on the union by the
Constitution, Parliament has also vested executive functions in union over concurrent list
matters under several acts. The executive powers of the Union are assigned by the President
who can exercise it directly or through officers subordinate to him in accordance with
Constitution. The President has power to appoint and remove certain dignitaries in the states.
He appoints the Governor of a State who holds his office during the rule of the President
(Article 155 and Article 156). He also appoints judges of the high courts (Article 217) and
plays a significant role in the removal of High Court Judges as also members of state public
service Commission (Article 317).
The principle of federalism lies not in the constitutional as institutional structure but in the
society itself. Federal Government is scheme by which the federal qualities of the society are
expressed and protected. In the impact of federalizing drifts, the one party dominant system
has given way to a multi Party system and elections have unfavourably affected the fortunes
of major national parties, bringing to the fore some regional parties to critical separates
threshold giving them heavy electoral edge. Presently, regional Political Parties have great
dominance in administrative relations.
In order to form state governments by many regional parties, major national parties are under
pressure to adjust their organizational structures to suit the demands of regionalization
making required adjustments to the federal imperatives of the Indian polity and society.
Functions of Union:
Central executive body of the government, the cabinet performs array of functions, there its
role is critical and pivotal.
These functions can be mentioned as under:
1. Formulation, execution, evaluation and revision of public policy in various spheres
which the party in power seeks to progress and practice.
2. Coordination among various ministries and other organs of the government which
might indulge in conflicts, wastefulness, duplication of functions and empire building.
3. Preparation and monitoring of the legislative agenda which translated the policies of
the government in action through statutory enactments.
4. Executive control over administration through appointments, rule making powers and
handling of crises and disasters, natural as well as political.
5. Financial management through fiscal control and operation of funds like Consolidated
Fund and Contingency Funds of India.
6. Review the work of planning and Planning Commission.
Functions of State:
The state government is defined as the government of a country’s subdivisions and shares
political power with the national government. In India, the state governments are the level of
government below the central government. Each state of the country is governed by the state
government.
Following are the roles and responsibilities of the state governments:
- State governments have separate departments for efficient functioning of the state. States
have jurisdiction over education, agriculture, public health, sanitation, hospitals and
dispensaries and many other departments.
- Internal security: The state governments have to maintain the internal security, law and
order in the state. Internal security is managed through state police.
- Public order: States have jurisdiction over police and public order.
- Education: Providing a public education system, maintaining school buildings and colleges,
employment of teachers, providing help to under privileged students all come under the
education department of the state.
- Agriculture: The state governments have to provide support for farmers, funds for best
farming practices, disease prevention and aid during disasters such as floods or droughts.
- Transport: State government runs the trains, trams, bus and ferry services and other public
transportation in the cities and towns of the States.
- Water supply: Water supply to cities and towns for drinking, including irrigation for
farmers, is the responsibility of the State governments.
- Budget: State governments make budget for state.
- Finances: State legislature handles the financial powers of the state, which include
authorisation of all expenditure, taxation and borrowing by the state government. It has the
power to originate money bills. It has control over taxes on entertainment and wealth, and
sales tax.
- Reservation of bills: The state governor may reserve any bill for the consideration of the
President.
3.3 UNION EXECUTIVE
The executive is growing in importance as it provides leadership to the government. With the
ever-widening sphere of its activities, the executive has naturally become the most important
branch of government formally, supremacy may rest with the legislature but in practice, it is
the executive which is all-important. The Ministries and the department helps running the
government successfully along with the bureaucracy and the legislature. The Union executive
consists of the President, the Vice-President, the Prime Minister, the council of ministers and
the attorney general of India.
Union Executive (Article 52-78)
The Union Executive system is known as Cabinet system of government as it is the Cabinet
headed by the Prime Minister which takes the major policy and administrative decisions.
However, these decisions are taken in the name of the President. In this write up we shall
look into the basic features of the Executive system, the powers and position of its
constituents and the relationship among the constituents.
The union executive of Indian polity is a part of the political executive, that comprises three
important posts:
1. President (Article 52-62)
2. Prime Minister & Council of Ministers (Article 74-75 & Article 78)
3. Attorney-General of India (Article 76).
Powers and Functions of President in India
The President of India is the Head of State. The primary duty of the President is to
preserve, protect and defend the constitution and the law of India as made part of his oath
(Article 60 of Indian constitution). The President is the common head of all independent
constitutional entities. All his actions, recommendations (Article 3, Article 111, Article 274,
etc.) and supervisory powers (Article 74(2), Article 78 c, Article 108, Article 111, etc.) over
the executive and legislative entities of India shall be used in accordance to uphold the
constitution. There is no bar on the actions of the President to contest in the court of law. The
system of government of India is a cabinet form of government. The Indian President is,
therefore, a constitutional head like the King or Queen of Britain—that is, all executive
powers are constitutionally vested in him, although those are actually exercised and executed
by the cabinet.
In India the powers of the Union government are treated as the powers of the
President because these powers are used in his name in pursuance of the constitutional
stipulation under Article 53 which reads: The executive powers of the Union shall be vested
in the President and shall be exercised by him either directly or through the officers
subordinate to him in accordance with this Constitution. The constitutional powers and
functions of the President of India may be classified into six principal types.
Executive Functions
1. Head of the Union: The President is at the head of the Union Executive.
Consequently, all executive powers are exercised in his name. The executive power of the
Union to be exercised by the President is extended to the matters with respect to which
Parliament has power to make laws and to conclude treaty and agreement.
2. Appointments: As head of the executive, the President appoints the Governors of
States, the Judges of the Supreme Court and the High Courts, the Auditor General of India
and many other high officials, such as the members of Finance Commission, Election
commission, Union Public commission etc.
3. Appointment of the Prime Minister and other Ministers: The President also
appoints the Prime Minister and with his advice the other Ministers of the Union Council of
Ministers. But here too, as in all other appointments, the President can seldom use his
discretion. He is, ordinarily, duty-bound to summon the leader of the political party which
secures an absolute majority in the Lok Sabha to become the Prime Minister and form the
Ministry. He does enjoy some discretionary powers in the matter only under exceptional
circumstances. When no single political party wins a clear absolute majority and, as a result,
no Council of Ministers can be formed without a coalition of parties the President can
exercise his discretion judiciously in appointing the Prime Minister. Such situations
developed in the past. India has entered into an age of coalition politics. And it may so
happen that no single party will be able to secure an absolute majority, and the President may
be required to exercise his discretionary power for some time to come, in appointing Prime
Minister.
4. Can ask to prove Majority in Lok Sabha: Union Council of Ministers normally
remains in office for five years, unless dissolved earlier for any reason. The President must be
satisfied that the Council of Ministers enjoys the confidence of the majority of the Lok Sabha.
In case of any doubt he can ask the Council of Ministers to prove its majority in the Lok
Sabha, as the Prime Ministers Sri H.D. Deve Gowda was asked by the President after the
official withdrawal of support by the Congress Party from Ministry. The President can also
dissolve the Union Council of Ministers in accordance with Article 75(2) of the constitution,
if he finds that the Ministry does not enjoy the support of the majorities in the Lok Sabha.
5. Supreme Commander: As head of State, the President is the supreme Commander
of the Armed Forces of India and is entitled to declare war or conclude a treaty.
Legislative Powers and Functions
1. President is a part of Parliament: The Union Legislature or Parliament consists of
the President and two Houses of Parliament. The President is, therefore, an integral part of
Union Legislature. He shall summon from time to time, either separately or jointly, the
Houses of Parliament. The President can prorogue the Houses or either House of Parliament
and, if necessary, can dissolve the lower Chamber of Parliament, the Lok Sabha. For
example, the President solved the twelfth Lok Sabha in early 1999 when the confidence
motion in favour your of the Vajpayee government was lost in the Lok Sabha.
2. Summons and Addresses Parliament: The President may address either or both
House of Parliament. In such address, at the first session after general election to the Lok
Sabha and at beginning of a joint session of Parliament each year, he may place the reasons
for summoning it. Apart from addressing Parliament, the President may also, in case of 3
necessities, send messages to either House, or to both Houses [Article 86(2)]. Normally, the
President does not send such a message, unless however, he has a serious disagreement with
the Council of Ministers.
3. Nomination: The President nominates a number of members in both Houses. The
chief purpose of the nomination is to ensure adequate representation in Parliament of all
sections of population which many not always be achieved through elections.
4. Power in respect of Bills: The President has certain functions in respect of passing
of a Bill. A bill passed by both the Houses of Parliament requires his assent in order to
become an Act. He may give his assent to a bill or can withhold assent when a bill, after
getting approved in both the Houses, is placed before the President. But, if Parliament, acting
on President’s refusal to assent to a bill, passes it again with or without amendment, for the
second time and presents it to the President for his approval, the President shall not withhold
his assent there from under Article 111. In other words, it becomes obligatory upon him to
give his assent. In certain cases, prior sanction of the President is required for initiating any
legislation. For instance, bill for formation of a new State or altering the boundaries of the
existing State or States is to be placed before Parliament with prior approval of the President.
Money bill is another example where obtaining of such approval of the President is a
constitutional necessity.
5. Bill passed by a State Legislature: A bill passed by a State Legislature may also be
reserved for the consideration of the President by the Governor of that State. The President
enjoys this right in relation to a bill passed by a State Legislature only in such cases where
those are referred to him by the Government of a State under Article 200. Power to
Promulgate Ordinances Except when both Houses of Parliament are in session, the President
may promulgate such Ordinances as the circumstances appear to him to require (Article 123).
Such an ordinance can have the same force and effect of an Act of Parliament. Such an
ordinance shall cease to operate unless passed by both Houses of Parliament within the
stipulated period. A.K. Roy vs. Union of India (1982) illustrates the proposition that the
satisfaction of the President must be as to the existence of a situation which makes it
necessary for the President to promulgate such on Ordinance.
The more controversial and debatable legislative power of the President has always
been the Ordinance Making Power. Usually the power to make the laws rests with the
Parliament. However, special power on the President empowering him to promulgate
ordinances when the Parliament is not in session and the circumstances are such which 4
require immediate action. An ordinance cannot be promulgated when both the houses of
parliament are in session However it may be passed when only one house is in session the
reason being that a law cannot be passed by only one house and thus it cannot meet a
situation calling for immediate legislation. This power granted to the President in the Indian
Constitution is unique and no such power has been conferred upon the executive in Britain or
the USA. In justification of the inception of the Ordinance Making power in the Constitution
Dr Ambedkar said that there might be a situation of emergency when the Houses of the
parliament are not in session. It is important that this situation should be dealt with and it
seems to me that the only solution is to confer upon the President the power to promulgate
the law which will enable the executive to deal with that particular situation because it cannot
resort to the ordinary process of law because the legislature is not in session.
Financial Powers and Functions
The President of India also exercises financial powers. No money bill can be
introduced in Parliament without the recommendations of the President. According to the
Constitution of India, the Annual Financial Statement is placed by the President before both
the Houses of Parliament. This statement shows the estimates of revenue and expenditure of
the central Government for the next year. It may be pointed out that the proposal for taxation
and expenditure cannot be made without the approval of the President. . No proposal for
spending money or raising revenues for purposes of government can be introduced in
Parliament without previous permission of the President.
Emergency Powers of the President
The constitution of India empowers the President to proclaim three kinds of Emergencies:
1. National Emergency (Art. 352);
2. Emergency for failure of Constitutional Machinery in a State (Art. 356);
3. Financial Emergency (Art. 360)
1. National Emergency: The President of India may issue a Proclamation of National
Emergency when the security of India or any part thereof is threatened by war, armed
rebellion or external aggression. Such a Proclamation of Emergency may remain in force for
an indefinite period. During a Proclamation of National Emergency, the executive power of
the States is to be exercised in accordance with the directions given by the Central
Government. Parliament has the power to make laws on the subjects enumerated in the State
List. The right to freedom of speech and expression, freedom to form association, freedom to
practice and profession, etc., embodied in Article 19 shall remain suspended.
2. Failure of State Constitutional Machinery: In Case of failure of Constitutional
machinery in a State, the President of India is authorized to make a Proclamation to that
effect. The maximum duration of this type of emergency is three (3) years. During such an
emergency, the President may assume to himself the executive powers of the State. The
powers of the legislatures of the State are to be exercised by the Union Parliament.
3. Financial Emergency :The President may also issue a Proclamation of Financial
if he is satisfied that the financial stability of India is threatened. This type of emergency may
continue to remain in force for an indefinite period. The Central Government may give
directions to the States for canons of financial propriety. All money-bills passed by the State
Legislatures are to be reserved for the consideration of the President.
Diplomatic powers: All International Treaties and agreements are negotiated and
concluded on behalf of the President. However, in practice, such negotiations are usually
carried out by the Prime Minister along with his Cabinet (especially the Foreign). Also, such
treaties are subject to the approval of the Parliament. The President represents India in
international forums and affairs where such a function is chiefly ceremonial. The President
may also send and receive diplomats, i.e. the officers from the Indian Foreign Service. The
President is the first citizen of the country.
Military Powers: The President is the Supreme Commander of the Indian Armed
Forces. The President can declare war or conclude peace, on the advice of the Union Council
of Ministers headed by the Prime Minister. All important treaties and contracts are made in
the President's name. He also appoints the Chiefs of the service branches of the Armed
Forces.
Pardoning Powers/Judicial Powers: The President of India grants, pardons,
reprieves or remissions of punishment to any person who has been convicted by a Court of
Law. As mentioned in Article 72 of the Indian Constitution, the President is empowered with
the powers to grant pardons in the following situations:
Punishment is for an offence against Union Law
Punishment is by a Military Court
Sentence is that of death
The decisions involving pardoning and other rights by the President are independent
of the opinion of the Prime Minister or the Lok Sabha majority. In most cases, however, the
President exercises his executive powers on the advice of the Prime Minister and the cabinet.
One of the major characteristics of the Indian executive system is that it is headed by
the President who acts as a nominal head as all the powers though vested in him and used in
his name but are pragmatically used by the Council of Ministers. Nevertheless, in the
subsequent discussion, we shall find that the position of President constitutionally may be
that of Nominal Head but in the emerging scenario of recent decades, this position has
become crucial taking him/her beyond the Nominal Head and becoming significant in
particular political situations.
PRIME MINISTER
The office of the Prime Minister is the most powerful office in India. If Cabinet is the
strongest institution, the Prime Minister is the strongest person in the cabinet under the
Constitution of India, the real centre of power is the office of the Prime Minister. He is the
Head of the Government of India. He is the real custodian of all executive authority.
Appointment of the Prime Minister:
(a) Prime Minister need not be always from Lok Sabha:
Between 1950-96 the Prime Ministers always belonged to the Lok Sabha. But it was a
convention and not a law. This convention was broken in June 1996, April 1997, May 2004
and May 2009. Since May 2004 (for the second consecutive time since May 2009) Dr
Manmohan Singh has been the Prime Minster and he has been and still he is a member of the
Rajya Sabha. Thus the convention that Prime Minister always belongs to Lok Sabha now
stands broken. The Prime Minister can be from either House of the Parliament. The only
essential condition is that he must be the adopted or elected leader of majority in the Lok
Sabha.
(b) Prime Minister need not be a sitting member of the Parliament:
Further, that any person who is not a member of either House of the Parliament can also
becomes a minister or the Prime Minister and e he can remain so for six months, within this
period he has to essentially get the membership of either House. In case he fails to do so, he
loses his office of Minister/Prime Minister.
(c) No Formal Qualifications:
The Constitution lays down no formal qualifications for the office of the Prime Minister.
Since no person who is not a member or cannot become a member of the Parliament can be
appointed as the Prime Minister, it can be said that the qualifications essential for the
membership of the Parliament are also the essential qualifications for the office of the Prime
Minister.
(d) Tenure:
Theoretically, the Prime Minister holds office during the pleasure of the President. It really
means, so long as he enjoys the confidence of majority in Lok Sabha. Lok Sabha can pass a
vote of no-confidence against him and in this case the Prime Minister either submits his
resignation to the President or gets dismissed by the President. Whenever it may appear that
the Prime Minister’s party has lost its majority in the Lok Sabha, the President can ask him to
prove his majority in House. A failure to do so compels the Prime Minister to either resign forthwith
or face dismissal at the hands of the President.
Powers and Functions of the Prime Minister:
1. Formation of the Council of Ministers:
The task of formation of the ministry begins with the appointment of the Prime Minister by
the President. After the appointment of Prime Minister, the President appoints all other
ministers on the advice of the Prime Minister. The PM determines the strength of his ministry
and selects his team of ministers. However this number cannot be more than 15% of the total
membership of the Lok Sabha.
Normally, most of the ministers are drawn from Lok Sabha. Prime Minister decides who
amongst them shall be the Cabinet Minister and who will be Minister of State or a Deputy
Minister. He can, if he so desires, even have one or two Deputy Prime Ministers in his
Council of Ministers.
2. Allocation of Portfolios:
It is an undisputed privilege of the Prime Minister to allocate portfolios to his ministers.
Which particular department is to be given to which minister is determined by him. Any
minister objecting to such an allotment invites the wrath of the Prime Minister and can get
completely ignored from the ministry.
3. Change of Portfolios:
The Prime Minister has the power to change the departments (portfolios) of the ministers at
any time. It is his privilege to shuffle and re-shuffle his ministry any time and as many times
as he may like.
4. Chairman of the Cabinet:
The Prime Minister is the leader of the Cabinet. He presides over its meetings. He decides the
agenda of its meetings. In fact all matters in the Cabinet are decided with the approval and
consent of the Prime Minister. It is up to him to accept or reject proposals for discussions in
the Cabinet. All ministers conform to his views and policies. There is scope for deliberations
and discussions but not for opposition.
5. Removal of Ministers:
The Prime Minister can demand resignation from any minister at any time, and the latter has
to accept the wishes of the former. However, if any minister may fail to resign, the Prime
Minister can get him dismissed from the President. For example in April 2010 Mr. Shashi
Throor had to submit his resignation because PM Manmohan Singh had asked him to do so.
6. Chief Link between the President and the Cabinet:
The Prime Minister is the main channel of communication between the President and the
Cabinet. He communicates to the President all decisions of the Cabinet, and puts before the
Cabinet the views of the President. This is the sole privilege of the Prime Minister and no
other minister can, of his own convey the decisions or reveal to the President the nature or
summary of the issues discussed in the Cabinet.
7. Chief Coordinator:
The Prime Minister acts as the general manager of the state and the chief coordinator. It is his
responsibility to co-ordinate the activities of all the departments and to secure co-operation
amongst all government departments. He resolves all differences, among the ministers.
8. Leader of the Parliament:
As the leader of the majority in the Lok Sabha, the Prime Minister is also the leader of the
Parliament. In this capacity, it is the PM who, in consultation with the Speaker of this Lok
Sabha, decides the agenda of the House. The summoning and the proroguing of Parliament is
in fact decided by him and the President only acts upon his advice.
9. Power to get the Parliament Dissolved:
The Prime Minister has the power to advise the President in favour of a dissolution of the
Lok Sabha. This power of dissolution really means that the members hold their seats in the
House at the mercy of the Prime Minister.
No member likes to contest frequent elections as these involve huge expenditures and
uncertainties. It has been rightly remarked that this is such an important weapon in the hands
of the Prime Minister that it binds his party men, and even the members of opposition.
12. Power of Patronage:
All important appointments are really made by the Prime Minister. These appointments
include Governors, Attorney-General, Auditor General, Members and Chairman of Public
Service Commission, Ambassadors, Consular etc. All high ranking appointments and
promotions are made by the President with the advice of the Prime Minister.
13. Role of Prime Minister during an Emergency:
The emergency powers of the President are in reality the powers of the Prime Minister. The
President declares an emergency only under the advice of the Cabinet, which in reality means
the advice of the Prime Minister. All decisions taken to meet an emergency are really the
decisions of the Prime Minister.
The Prime Minister can get the imposition of President’s rule in a State. The Presidential
decision in favour of imposing an emergency in a state is always governed by the decision of
the Prime Minister and his Cabinet.
Position of the Prime Minister:
(a) The office of PM is very powerful:
A study of the powers and functions of the Prime Minister clearly brings out the fact that he
holds the most powerful office in the Indian. He exercises real and formidable powers in all
spheres of governmental activity—executive, legislative and financial. The Prime Minister is
the captain of the ship of state, the key stone of cabinet arch, the steering wheel of
government, and the moon amongst lesser stars.
The whole organisation and working of the Council of Ministers depend upon the Prime
Minister. The President always acts in accordance with the advice of the Prime Minister. The
ministry-making is the sole right of the Prime Minister. The resignation or removal of the
Prime Minister always means the resignation of the Council of Ministers. Hence, Prime
Minister is the centre of gravity and the foundation stone of the Council of Ministers.
(b) The President of India always acts upon the advice of the PM:
The President always acts upon the advice of the Prime Minister. The constitution assigns to
the latter the role of being the chief advisor to the President. All the powers of the President,
both the normal powers and the emergency powers, are really the powers of the Prime
Minister.
As the head of the government, leader of the Cabinet, leader of the majority, leader of the
Parliament and the leader of the nation, the Prime Minister plays an important an powerful
role in the Indian Political System. Indeed the Prime Minister occupies a very powerful rather
the most powerful position in India.
(c) The PM cannot become a dictator:
Undoubtedly, the Prime Minister of India enjoys a very strong position, yet he can neither be
a dictator nor even behave like a dictator. His office is a democratic office to which he rises
only through an effective participation in the democratic process.
The party to which the Prime Minister belongs, his own ministerial colleagues who are also
his competitors, the leaders of the opposition parties, the President of India, the Parliament,
the Press, the Constitution, and the public in general, all act as limitations upon him. These
prevent him from becoming a dictator and from acting in an arbitrary way. His personality
and skills are continuously on test. Any failure or lapse can cause his exit.
The office of the Prime Minister of India is a powerful democratic office. Its actual working
depends upon the personal qualities and political status of the person who holds this office.
However no one can convert his office into an authoritarian or dictatorial office. A person can
remain Prime Minister only so long as he follows democratic norms and values.
Union Council of Ministers:
Organisation, Power and Position of the Council of Ministers: Article 74 of the
Constitution of India provides for the real executive i.e. the Union Council of Ministers with
the Prime Minister as its head. Theoretically the Council of Ministers and Prime Minister are
to aid and advise the President in the exercise of his powers. However in actual practice, in
reality all powers of the President are used by the PM and his ministry… The President is
bound by the advice of the PM and his Council of Ministers.
(A) Organisation of the Council of Ministers: Art. 75 of the Constitution lays down
following basic rules regarding the organisation of the Union Council of Ministers:
(a) The Prime Minister is appointed by the President. All other ministers are appointed by the
President upon the advice of the Prime Minister.
(b) The ministers hold office during the pleasure of the President.
(c) The Council of Ministers is collectively responsible to the House of the People (Lok
Sabha).
(d) Before a minister takes over his office, the President administers to him the oath of office
and secrecy.
(e) The salaries and allowances of ministers are such as the Parliament determines by law.
(i) Process of Formation of the Union Council of Ministers:
The process of formation of the Council of Ministers begins with the appointment of the
Prime Minister by the President. After the election of each new Lok Sabha, the President
appoints the leader of the majority in Lok Sabha, as the Prime Minister.After his
appointment, the Prime Minister prepares the list of the persons whom he recommends for
appointment as ministers. The President appoints all other ministers upon his
recommendation. The President always accepts the advice of the Prime Minister.Further,
acting upon the advice of the Prime Minister, the President distributes portfolios among the
ministers. The Prime Minister is the sole judge to decide who shall be a minister? Which
portfolio a minister will hold? and Who will be a Cabinet Minister, or a Minister of State or a
Deputy Minister ?
The Constitution gives a free hand to the Prime Minister to constitute the Council Ministers.
Normally only a member of either House of the Parliament is appointed as a minister.
However, the Prime Minister can also appoint a non-member as a minister, but such a
minister has to get the membership of either house, (through an election or a nomination)
within six months of his appointment. In case of failure to do so within 6 months, the
concerned minister has to quit his minister-ship after the expiry of six months.
(ii) Size and Composition of the Council of Ministers:
To begin with there was no formal rule regarding the size of the Council of Ministers. The
decision in this respect used to rest with the Prime Minister. But now the number of ministers
cannot be more than 15% of the total membership of the Lok Sabha. It now a clear rule.
(iii) Categories of Ministers:
(a) Cabinet Ministers: Their number is between 15- 20. They are important ministers hold
key portfolios. They constitute the Cabinet i.e. the powerful policy¬making and decision-
making part of the Council of Ministers.
(b) Ministers of State:They constitute the second category of ministers. They are not the
members of the Cabinet. A minister of state either holds an independent charge of a small
department or is attached to a Cabinet Minister. While some departments like Home, External
Affairs, Defense, Finance, Agriculture have 2 or 3 Ministers of State, the departments like
Civil Aviation, Information and Broadcasting, Labour Welfare, Surface Transport and
Textiles; each is headed by a Minister of State.
(c) Deputy Ministers:They are helping ministers attached to the Cabinet Ministers or the
Ministers of State. No Deputy Minister holds an independent charge of any department. The
present Union Council of Ministers has no Deputy Minister as its member.
Parliamentary Secretaries:They are neither minister nor are they assigned any
administrative work. Their sole function is to help the ministers in the Parliament. They do
not draw any salary.
Office of Deputy Prime Minister: The Constitution does not provide for the office of the
Deputy Prime Minister. As such it is the sweet will of the Prime Minister to have or not to
have a Deputy Prime Minister in his Council of Ministers. In 2002 P.M. Vajpayee decided to
make Mr. L.K. Advani as Deputy Prime Minister. However in 2004 and again in 2009 PM
Manmohan Singh decided not to have a deputy prime minister in his cabinet.
(iv) Term of Office:
Theoretically ministers hold office during the pleasure of the President. It really means so
long as they continue to enjoy the confidence of the majority in the Lok Sabha. The Prime
Minister can, at any time demand a resignation from any minister and the latter has to
comply. Prime Minister can recommend to the President the dismissal of any minister and the
President always acts upon his advice. The resignation of the Prime Minister means the
resignation of the entire Council of Ministers.
Thus, the tenure of the ministry or a minister is not fixed. A ministry/each minister remains in
office so long as it enjoys the confidence of the majority in Lok Sabha, or so long as the
Prime Minister does not resign. The maximum term for which a ministry can remain in office
in 5 years, i.e., for one full term of the Lok Sabha. After every new general election to the
Lok Sabha, a new ministry has to be constituted even if the same party which enjoyed the
majority in the previous Lok Sabha, may return with a majority in the new Lok Sabha.
(v) Oath of Office and Secrecy:
Every new minister has to undertake the Oath of Office and Secrecy before entering into his
office. The oath is administered to him by the President of India.
(vi) Salary:
The constitution declares that the salaries and allowances of ministers shall be determined by
the Parliament by law. Accordingly the Parliament by a law passed in 1985 had laid down
that each minister shall receive the same salary and allowances which are being paid to a
member of the Parliament. In addition to it, the Prime Minister and other ministers receive
some allowances and other parks.
(vii) Committees of the Cabinet:
The Cabinet carries out its work through its several Standing Committees— Political Affairs
Committee, Defence Committee, Planning Committee, Economic Policy Committee, Foreign
Affairs Committee, Parliamentary Affairs Committee and some other such committees. The
Prime Minister heads some of these committees, while others are headed by some senior
ministers. These committees help the Cabinet in its task of policy-making. Now Prime
Minister’s Office (PMO) works as a coordinating office. It coordinates the working of all
other ministries. PMO is now a centre of power and importance.
Powers of the Union Council of Ministers:
(a) Executive Powers:
(i) Real Executive:The Council of Ministers is the real executive. All executive powers of
the President of India are really used by the Council of Ministers.
(ii) Policy-Making: The Cabinet formulates the policies which are to be submitted to the
Parliament for approval. It gets these policies approved from the Parliament and then
implements these. It runs the administration of the Union in accordance with the approved
policies. The Cabinet/ PM coordinate and control the working of all departments of the
government. The Cabinet formulates the foreign policy as well as all domestic policies
deemed necessary for all round development of the country.
(iii) Running of Administration: The Cabinet runs the administration in accordance with the
laws and policies. It has the responsibility to maintain law and order in the country. Every
minister heads one or more departments. It is under his headship that the administration of a
department is run. The day to day decisions are taken by the departments in accordance with
the policies of the Cabinet. For all its policies and decisions the Council of Ministers is
collectively responsible before the Lok Sabha. Any failure on any front can cause the fall of
the ministry. Likewise, every minister is also individually responsible before Lok Sabha for
the functioning of the department or departments which he heads.
(iv) Functions during as Emergency: The exercise of Emergency Powers by the President
is always done in accordance with the advice of the Prime Minister and his Council of
Ministers. The President can declare an emergency only under the advice of the Cabinet. He
takes all steps for meeting the emergency in accordance with the advice of the Prime Minister
and his Council of Ministers. The real responsibility to meet an emergency is of the Cabinet.
(v) Appointment-Making Powers: The President makes all the higher appointments—
Governors, Ambassadors, Envoys, High Commissioners, Consuls, Judges of the Supreme
Court and High Courts, Military Commanders, members of UPSC, Election Commission,
Planning Commission and others, in accordance with the advice of the prime Minister and the
Cabinet.
(v) Treaty-Making and Defence Functions: All treaties and other international agreements
are negotiated and signed by the ministers on behalf of the President. To prepare for the
defence of the country through the organisation and modernisation of the Army, Air Force
and Navy, and by formulating a suitable defence and nuclear policy, is a fundamental
function of the Cabinet. Thus the Council of Ministers exercises real executive powers. In its
working, it is dominated by the Prime Minister and the Cabinet.
(ii) Legislative Powers: Though the legislative powers of the Union are in the hands of the
Parliament, the Council of Ministers plays an important role in the sphere of legislation. The
ministers are both the heads of government departments as well as members of the
Parliament. They take full and active part in the working of the Parliament.
Most of the bills are introduced and piloted by them. 95 % of the time of the Parliament is
utilized for handling governmental business, which is managed by the ministers. A bill not
supported by the Council of Ministers cannot get passed from the Parliament because the
ministry enjoys the support of the majority in Parliament.If the Lok Sabha either passes a bill
not supported by the Council of Ministers or rejects a bill supported by it, or rejects the
budget of the Cabinet, it is taken to be a vote of no-confidence against the government and
the entire Council of Ministers resigns. While doing so the Prime Minister/Cabinet can advice
the President to dissolve the Lok Sabha,
The President summons prorogues or dissolves the Parliament in accordance with the advice
of the Cabinet. The Prime Minister can recommend to the President a dissolution of the Lok
Sabha and for the holding of fresh elections. The President always accepts such an advice.
The Cabinet can use the threat of dissolution for getting support from the LokSabha.The
Council of Ministers is, undoubtedly, collectively responsible before the Lok Sabha and the
latter can remove it by passing a vote of no-confidence. But such an eventuality cannot arise
so long as the Cabinet enjoys the support of the majority in the Lok Sabha. A ministry backed
by a majority can have its way in the Parliament. Normally, it is the Cabinet (backed by a
majority) which really controls the Working of Parliament.
(iii) Financial Powers:
The Parliament is the custodian of national finances. However, the Cabinet plays a leading
role in this sphere also. The budget is prepared by the Cabinet. It lays down the fiscal policies
of the government. The Cabinet gets the budget passed from the Parliament. The Cabinet runs
the financial administration in accordance with the provisions of the budget as passed by the
Parliament. All proposals for additional taxes come from the Cabinet. Money Bills can be
introduced only in the Lok Sabha and only by the ministers. The Parliament can modify
financial bills but only with the consent of the Cabinet. Any action of the Parliament against
the wishes of the Cabinet amounts to a vote of no-confidence against the Government. Such a
situation, however, arises only when the ministry loses the support of the majority. Normally,
the Cabinet is in a position to get its wishes accepted by the Parliament.
Position of the Union Council of Ministers:
The above account of the powers and functions of the Council of Ministers reveals the strong
and central position that it occupies as the real and powerful executive in the Indian political
system. All the powers of the President of India are really exercised by the Council of
Ministers. Within the Council of Ministers, the Cabinet is the most powerful body. It is the
central institution which uses all these powers. The Cabinet directs, supervises and controls
the formulation of national policies and the running of the administration. As the maker of all
policies, the director of administration and the supreme coordinator of government activity,
the Cabinet enjoys an enviable position. It is indeed the steering wheel of the ship of the state.
It is the centre of power and the most powerful institution of the Indian political system.
Executive System in India
The Executive system in India comprise of three constituents namely, President, Cabinet and
the Prime Minister. Aw we have adopted parliamentary system of government that has turned
out to be Cabinet system of government as per Westminster model. However, there is a
changing trend in the Westminster model as well at the role and position of the PM is
becoming too crucial for the survival of the government. Traditionally, the PM had been
termed as primus inter pares i.e. first among equals with reference to the Cabinet system.
Once upon a time, it was thought that the parliamentary system of government has
transformed into Cabinet system of government due to the predominance of the Cabinet in
the decision making process. However, the position of the PM has become so unparalleled
that observers started calling it Prime Minister Government.
The PM is emerging as the most powerful among the constituents of the Executive in India
for the following reasons:
The General elections are fought with a particular personality or probable
personalities projected as PM in the post election scenario. Most of the General
elections have been fought with announcing of the PM candidate by various parties be
it Congress or BJP. Presently, a major debate is going on in the BJP who should be
projected as PM whether Narendra Modi or any other senior leader of the party.
Similarly the Congress may also announce its candidate for the General election to be
held in 2014.
PM functions as the only link between the President and the Council of Ministers that
has been constitutionally mandated to advice the President. Thus for all practical
purposes the PM communicates with the President. One may usually read in the
newspapers that the PM visited the President and apprised him of the National
scenario.
Selection, Termination and change of portfolios of the Ministers is virtually done by
the PM. There could be various other reasons also but no minister could remain
against the wish of the PM in the Cabinet.
Call/ Summons the meetings of the Cabinet and functions as the Chairperson and
usually his opinion is accepted on major issues of governance.
Government comes into existence with him/her and shines off with his/her
resignation/termination.
Increasing role of Prime Minister’s Office (PMO) in coordinating and supervising the
decisions and policies of various ministries. The recent controversies of
Telecommunications (2G) Scam, Coalgate Scam, etc. show how the PMO’s role has
been crucial.
Thus the Executive constituents in India despite having constitutional mandate and
expected to work within the given frame of powers and functions could acquire
significance beyond the constitutional provisions as the political circumstances unveil.
However, they may not become absolutist and maneuver the powers of other constituents
as there are various checks and balances imposed by Constitution itself. Above all in the
last sixty three years the Courts interventions and emergence of larger maturity among the
power holders and the civil society in general forces the individual power holders of the
Executive to behave in particular mode as per the Constitutional provisions. This basic
understanding is taking the Executive to a stage where, even if the Cabinet wants the
President to behave in a particular way then the President also asserts and thus the
Constitutional morality is restored.
3.4 LEGISLATURE AND JUDICIARY
The three branches of the government are the executive, the legislature and the judiciary.
Although the three have distinct functions to perform, their scope sometimes meet. In India, a
separation of functions rather than of powers is followed. Unlike in the US, in India, the
concept of a separation of powers is not adhered to strictly. However, a system of checks and
balances have been put in place in such a manner that the judiciary has the power to strike
down any unconstitutional laws passed by the legislature.
Today, most of the constitutional systems do not have a strict separation of powers between
the various organs in the classical sense because it is impractical. In the following sections,
we will see the prevailing system in India, what the relationship between each organ is, and
the constitutional provisions thereof.
Before proceeding with the relationships, let us examine in brief what the functions of each
organ of the government are,
What is the Legislature?
The chief function of the legislature is to enact laws.
It is the basis for the functioning of the other two organs, the executive and the
judiciary.
It is also sometimes accorded the first place among the three organs because until and
unless laws are enacted, there can be no implementation and application of laws.
What is the Judiciary?
The judiciary is that branch of the government that interprets law, settles disputes and
administers justice to all citizens.
The judiciary is considered the watchdog of democracy, and also the guardian of the
Constitution.
It comprises of the Supreme Court, the High Courts, District and other subordinate
courts.
For more on Indian Judiciary, click on the linked article.
What is ‘Separation of Powers’?
In the strictest sense, the doctrine of separation of powers is very rigid.
Background of the concept
This concept was first seen in the works of Aristotle, in the 4th century BCE, wherein
he described the three agencies of the government as General Assembly, Public
Officials and Judiciary.
In the Ancient Roman Republic too, a similar concept was followed.
In modern times, it was 18th century French philosopher Montesquieu who made the
doctrine a highly systematic and scientific one, in his book De L‘ Espirit des Lois
(The Spirit of Laws).
His work is based on an understanding of the English system which was showing a
propensity towards greater distinction between the three organs of government.
Meaning of Separation of Powers
Although different authors give different definitions, in general, we can frame three
features of this doctrine.
1. Each organ should have different persons in capacity, i.e., a person with a function in
one organ should not be a part of another organ.
2. One organ should not interfere in the functioning of the other organs.
3. One organ should not exercise a function of another organ (they should stick to their
mandate only).
Significance of the doctrine
Why do we need a separation of powers between the various organs of the State?
Whenever there is a concentration of power in one centre/authority, there is bound to be
greater chances of maladministration, corruption, nepotism and abuse of power. This
principle ensures that autocracy does not creep in to a democratic system. It protects
citizens from arbitrary rule. Hence, the importance of the Separation of Powers doctrine
can be summed up as follows:
1. Keeps away autocracy
2. Safeguards individual liberty
3. Helps create an efficient administration
4. Judiciary’s independence is maintained
5. Prevents the legislature from enacting arbitrary or unconstitutional laws.
Constitutional Status of Separation of Power in India
The doctrine of separation of powers is a part of the basic structure of the Constitution,
although not specifically mentioned. The legislature cannot pass a law violating this
principle. The functions of the three organs are specifically mentioned in the Constitution.
Let us take a look at some of the articles of the Constitution which suggest separation of
powers.
Article 50: This article puts an obligation over the State to separate the judiciary from the
executive. But, since this falls under the Directive Principles of State Policy, it is not
enforceable.
Article 123: The President, being the executive head of the country, is empowered to
exercise legislative powers in certain conditions.
Articles 121 and 211: These provide that the legislatures cannot discuss the conduct of a
judge of the Supreme Court or High Court. They can do so only in case of impeachment.
Article 361: The President and Governors enjoy immunity from court proceedings.
There is a system of checks and balances wherein the various organs impose checks on one
another by certain provisions.
The judiciary has the power of judicial review over the actions of the executive and
the legislature.
The judiciary has the power to strike down any law passed by the legislature if it is
unconstitutional or arbitrary as per Article 13 (if it violates Fundamental Rights).
It can also declare unconstitutional executive actions as void.
The legislature also reviews the functioning of the executive.
Although the judiciary is independent, the judges are appointed by the executive.
The legislature can also alter the basis of the judgment while adhering to the
constitutional limitation.
Checks and balances ensure that no one organ becomes all-too powerful. The Constitution
guarantees that the discretionary power bestowed on any one organ is within the democratic
principle.
Relationship between Legislature and Judiciary
Even though the functions of the executive and the judiciary are well-defined in the
Constitution, the system of checks and balances ensures that each one can impose checks on
the other.
The judiciary can strike down laws that it considers unconstitutional or arbitrary.
The legislature, on its part, has protested against judicial activism, and tried to frame
laws to circumvent certain judgements.
Judicial activism is said to be against the principle of separation of powers.
There have been instances where the courts have issued laws and policies through
judgements. For example, the Vishakha Guidelines where the SC issued guidelines on
sexual harassment.
In 2010, the SC directed the government to undertake distribution of food grains.
If the judiciary oversteps its mandate and crosses over into the territory of the
legislature or the executive, it is called judicial overreach.
Judicial Supremacy and Parliamentary Sovereignty
To strike a balance between the judiciary and the legislature, the Indian constitution uses the
following principles:
The doctrine of Parliamentary Sovereignty has been adapted from the British
Constitution.
The doctrine of Judicial Supremacy has been adapted from the American
Constitution.
The power of judicial review of the Supreme Court of India is narrower in scope than
the Supreme Court of the USA.
The Constitution of India guarantees ‘established procedure by law’ in Article 21
instead of the ‘due process of law’ provided in the American Constitution.
The Indian Constitution has opted for an amalgamation of Britain’s principle of
parliamentary sovereignty and the judicial supremacy of the USA.
The Supreme Court, on the one hand, can declare the parliamentary enactments as
unconstitutional using the power of judicial review.
The Parliament, on the other hand, can amend a large chunk of the Constitution using
its constituent power.
Relationship between Legislature and Executive
The Constitution states that the executive branch of the State (Council of Ministers) shall be
collectively responsible to the Legislature (Lok Sabha). This implies that the Parliament
should supervise the work of the government and hold it accountable for its actions.
In a parliamentary form of government, the executive is not separated from the
legislature in that the members of the council of ministers are members of the
legislature.
The executive loses power when it loses the confidence of the legislature. The
executive/council of ministers is dismissed if it loses the legislature’s confidence
before its tenure is over. So, the legislature controls the executive through a vote of
no-confidence.
The head of government and head of state are different. The head of the government
is the Prime Minister while the head of state is the President.
The parliament makes laws in general broad terms and delegates the powers to the
executive to formulate detailed policy and implement them.
In a presidential form of government, the executive is not accountable to the
legislature. One person is the heads of both the State as well as the government. A
minister need not be from the legislature.
Relationship between Executive and Judiciary
There are several provisions in the Constitution which makes the judiciary independent. This
is because, it is believed that for a democracy to remain efficient and effective, the judiciary
must be independent. The judiciary is said to be the guardian of the constitution. If the
executive also assumes judicial powers, that sort of a government tends to become
oppressive.
However, there are some judicial functions which are performed by the executive as well.
They are:
1. The appointments of the judges are made by the executive.
2. The President and the Governors also enjoy the power to pardon, reprieve, etc. These
are direct judicial functions.
3. Under the system of administrative adjudication, the executive agencies have the
power to hear and decide cases involving particular fields of administrative activity.
Exercise
31. Explain about union government
32. Write on Union executive.
33. What is the relation between Judiciary and Legislature?
34. Functions of union government?
35. Write about functions of state?
36. Elaborate the role of president.
37. Explain president as nominal head.
38. Explain as Prime Minister as most powerful executive head in India.
39. Explain about separation of powers .
40. Write on constitutional status on separations of powers in India.
UNIT – 4
4.1 INTRODUCTION
4.2 STATE ADMINISTARTION EXECUTIVE
4.3 LEGISLATIVE
4.4 HIGH COURT
4.6 SUBORDINATE
UNIT - 4
Objectives
1. Explaining about state administration executive.
2. To know the role of legislature.
3. Defining High Court with all its dimensions.
4. Explaining about subordinate courts in the country.
4.1 INTRODUCTION
India is a largest democratic country in the earth. There are three pillars of democracy –
Legislative, Judiciary and Executive. The smooth functioning of democracy fully depends
upon these factors which have been enshrined in our constitution and act as separate entities.
The system of judicial controls has been going on in a very satisfying manner ever since India
became free in 1947. Justice is this country can be delayed but it is never denied.
Everybody is free to approach the courts whenever he or she feels that he or she is being
deprived of his or her rights as a citizen of India. The entire process proved that none
amongst the top leaders of the country could be labeled beyond doubt.
In a situation like this, a big, powerful lobby is likely to work in the direction of suppression
of the process of natural justice or bring a bad name to the judiciary or the judicial process. A
provision has been made for providing legal assistance to those who are too poor to pay and
fees to the lawyers. Justice has thus been brought within the reach of one and all. It is feared
that some vested interests may succeed in throttling the judiciary in some subtle manner.
Many corrupt leaders, politicians and officers continue to be brought before the court on
various charges. Many a time it is seen that some undesirable elements try to misuse the legal
process to either circumvent justice or to delay the process in such a way that delayed justice
only amounts to the denial of justice. The judicial system of the country is certainly vested
with remedies for such situations but many a time the sufferers are not aware of these
remedies. In spite of several constraints, the judiciary continues to play its role to the best of
its ability. The law of the land must be allowed to prevail. This is possible only if the
judiciary is made stronger.
Quick and efficient administration of justice must be ensured to one and all. There is no
doubt that politicians and bureaucrats have failed in their duty to give this country a clean,
honest government answerable to the masses. It is judiciary alone that can assert itself and
call a spade a spade without fear or favour. India lives only if its judicial system lives; India
dies if its judicial system is stifled. No power, however big, should be allowed to circumvent
the judicial process. Free and fair justice is the soul of this country. Judiciary is the only hope
of the country.
4.2 STATE ADMINISTRATION EXECUTIVE
The state legislature occupies a pre-eminent and central position in the political system of a
state. Articles 168 to 212 in Part VI of the Constitution deal with the organisation,
composition, duration, officers, procedures, privileges, powers and so on of the state
legislature. Though these are similar to that of Parliament, there are some differences as well.
There is no uniformity in the organisation of state legislatures. Most of the states have an
unicameral system, while others have a bicameral system. At present (2016), only seven
states have two Houses (bicameral). These are Andhra Pradesh, Telangana, Uttar Pradesh,
Bihar, Maharashtra, Karnataka and Jammu and Kashmir. The Tamil Nadu Legislative
Council Act, 2010 has not come into force. The Legislative Council in Andhra Pradesh was
revived by the Andhra Pradesh Legislative Council Act, 2005. The 7th Amendment Act of
1956 provided for a Legislative Council in Madhya Pradesh. However, a notification to this
effect has to be made by the President. So far, no such notification has been made. Hence,
Madhya Pradesh continues to have one House only.
The twenty-two states have unicameral system. Here, the state legislature consists of the
governor and the legislative assembly. In the states having bicameral system, the state
legislature consists of the governor, the legislative council and the legislative assembly. The
legislative council (VidhanParishad) is the upper house (second chamber or house of elders),
while the legislative assembly (Vidhan Sabha) is the lower house (first chamber or popular
house).
The Constitution provides for the abolition or creation of legislative councils in states.
Accordingly, the Parliament can abolish a legislative council (where it already exists) or
create it (where it does not exist), if the legislative assembly of the concerned state passes a
resolution to that effect. Such a specific resolution must be passed by the state assembly by a
special majority, that is, a majority of the total membership of the assembly and a majority of
not less than two-thirds of the members of the assembly present and voting. This Act of
Parliament is not to be deemed as an amendment of the Constitution for the purposes of
Article 368 and is passed like an ordinary piece of legislation (ie, by simple majority).
“The idea of having a second chamber in the states was criticised in the Constituent
Assembly on the ground that it was not representative of the people, that it delayed legislative
process and that it was an expensive institution.” Consequently the provision was made for
the abolition or creation of a legislative council to enable a state to have a second chamber or
not according to its own willingness and financial strength. For example, Andhra Pradesh got
the legislative council created in 1957 and got the same abolished in 1985. The Legislative
Council in Andhra Pradesh was again revived in 2007, after the enactment of the Andhra
Pradesh Legislative Council Act, 2005. The legislative council of Tamil Nadu had been
abolished in 1986 and that of Punjab and West Bengal in 1969.
In 2010, the Legislative Assembly of Tamil Nadu passed a resolution for the revival of the
Legislative Council in the state. Accordingly, the Parliament enacted the Tamil Nadu
Legislative Council Act, 2010 which provided for the creation of Legislative Council in the
state. However, before this Act was enforced, the Legislative Assembly of Tamil Nadu
passed another resolution in 2011 seeking the abolition of the proposed Legislative Council.
Membership of State Legislature
1. Qualifications
The Constitution lays down the following qualifications for a person to be chosen a
member of the state legislature.
(a) He must be a citizen of India.
(b) He must make and subscribe to an oath or affirmation before the person authorised by
the Election Commission for this purpose. In his oath or affirmation, he swears (i) To
bear true faith and allegiance to the Constitution of India (ii) To uphold the sovereignty
and integrity of India
(c) He must be not less than 30 years of age in the case of the legislative council and not
less than 25 years of age in the case of the legislative assembly.
(d) He must posses other qualifications prescribed by Parliament. Accordingly, the
Parliament has laid down the following additional qualifications in the Representation of
People Act (1951):
A person to be elected to the legislative council must be an elector for an
assembly constituency in the concerned state and to be qualified for the
governor’s nomination, he must be a resident in the concerned state.
A person to be elected to the legislative assembly must be an elector for an
assembly constituency in the concerned state.
He must be a member of a scheduled caste or scheduled tribe if he wants to
contest a seat reserved for them. However, a member of scheduled castes or
scheduled tribes can also contest a seat not reserved for them.
State governments in India are the governments ruling 28 states and 9 union territories of
India and the head of the council of ministers in a state is chief minister. Power
is divided between the union government and state governments. While the union
government handles military and external affairs etc., whereas the state government deals
with internal security (through state police) and other state issues. Income for the union
government is from customs duty, excise tax, income tax etc., while state government income
comes from sales tax (VAT), stamp duty, now these have been subsumed
under CGST, SGST—components of GST.
Each state has a legislative assembly. A state legislature that has one house, known as State
Legislative Assembly (Vidhan Sabha), is a unicameral legislature.A state legislature that has
two houses known as State Legislative assembly and State Legislative
Council (VidhanParishad), is a bicameral legislature. The Vidhan Sabha is the lower
house and corresponds to the Lok Sabha, the VidhanParishad is the upper house and
corresponds to the Rajya Sabha of Indian Parliament.
Powers and Functions
State legislature has exclusive powers over subjects enumerated in List II of the Seventh
Schedule of the Constitution and concurrent powers over those enumerated in sub List III.
Financial powers of legislature include authorisation of all expenditure, taxation and
borrowing by the state government. Legislative assembly alone has the power to originate
money bills. Legislative council can make only recommendations in respect of changes it
considers necessary within a period of fourteen days of the receipt of money bills from
Assembly. Assembly can accept or reject these recommendations.
The Governor of a state may reserve any Bill for the consideration of the President. Bills
relating to subjects like the compulsory acquisition of property, measures affecting powers
and position of High Courts and the imposition of taxes on storage, distribution and sale of
water or electricity in Inter-state River or river valley development projects should
necessarily be so reserved. No Bills seeking to impose restrictions on inter-state trade can be
introduced in a state legislature without the previous sanction of the President.
State legislatures, apart from exercising the usual power of financial control, use all normal
parliamentary devices like questions, discussions, debates, adjournments and no-confidence
motions and resolutions to keep a watch over day-to-day work of the executive. They also
have their committees on estimates and public accounts to ensure that grants sanctioned by
the legislature are properly utilised.
Executive
THE GOVERNOR
State Executive consists of Governor and Council of Ministers with Chief Minister as its
head. The Governor of a State is appointed by the President for a term of five years and holds
office during his pleasure. Executive power of the State is vested in Governor.
Powers and Functions of Governor
Both at the state and union levels, it has institutions and processes in place like any other
parliamentary system. At the state level, there is a Governor in whom the executive power of
the State is vested by the Constitution. But the Governor acts as a nominal head, and the real
executive powers are exercised by the Council of Ministers headed by the Chief Minister.
Appointment
The Governor of a State is appointed by the President of India. In order to become a
Governor, a person must have the following qualifications. He/She:
1. must be a citizen of India,
2. must be at least 35 years old, and should not hold any office of profit during his/her
tenure.
If a person is a member of either the House of the Parliament or the Legislature of a State, or
a member of the Council of Ministers at the national or the state level and is appointed as
Governor, he/she resigns that post. The Governor is appointed for a term of five years but
normally holds office during the pleasure of the President. The pleasure of the President
means that the Governor may be removed by the President even before the expiry of his/her
term. He/She may also resign earlier. However, in reality, while appointing or removing the
Governor, the President goes by the advice of the Prime Minister.
Powers of Governor
With every job, there are powers attached. The powers of the Governor are conferred by the
Constitution to enable him/her to perform his/her functions effectively as a Head of the State.
The powers of the Governor can be categorized as
(i) executive powers,
(ii) legislative powers,
(iii) financial powers,
(iv) Judicial powers, and
(v) Discretionary powers.
(a) Executive Powers:
The Constitution of India vests the entire executive powers of the State in the Governor who
performs these functions according to the aid and advice of the Council of Ministers with the
Chief Minister as its head. He/ She appoints the Chief Minister and other members of the
Council of Ministers. He/She also appoint persons on important posts such as the
Chairpersons and Members of the State Public Service Commission, State Election
Commission, State Finance Commission and the Advocate General, Judges of the courts,
other than the High Court. He/She is consulted when the Judges of the State High Court are
appointed by the President. But in practice, the Governor’s powers are only formal. He
appoints only that person as Chief Minister who is the Leader of the majority in the
Legislative Assembly. He/She appoints Members of the Council of Ministers only on the
advice of the Chief Minister. All other appointments are made and executive functions are
performed by him/ her exactly as per the advice of the Council of Ministers.
(b) Legislative Powers:
The Governor is an inseparable part of the State Legislature and as such he/she has been
given certain legislative powers. He/ She has the right to summon and prorogue the State
Legislature and can dissolve the State Legislative Assembly. He/She addresses the State
Legislative Assembly or the joint sessions of the two houses of the legislature. He/She may
nominate one person of the Anglo-Indian community as a member of the Legislative
Assembly in case the community is not represented. He/She also nominates one-sixth of the
members to the Legislative Council, if the State has a bicameral legislature. Once again, in
real practice, the Governor does all this on the recommendations of the Council of Ministers
headed by the Chief Minister. A bill passed by the State Legislature becomes a law or Act
only when the Governor gives assent to it.
(c) Financial Powers:
You must have read in the newspapers that every year the budget is presented by the
government in the Legislature for its approval. In fact, the budget i.e. ‘the Annual Financial
Statement’ of the State is prepared and presented by the State Finance Minister before the
State Legislature, on behalf of the Governor. Moreover, no money bill can be introduced in
the State Legislature without the recommendations of the Governor. He/She also has control
over the State Contingency Fund.
(d) Discretionary Powers:
As we have seen earlier, the Governor acts on the advice of the State Council of Ministers.
This means that in reality, the Governor has no powers. But according to the Constitution,
under special circumstances, he/ she may act without the advice of the Council of Ministers.
Such powers, which are exercised by the Governor on his own, are called discretionary
powers. Firstly, if no political party or coalition of parties wins a clear majority in the
Legislative Assembly, he/she can exercise his/her discretion in inviting a person to be the
Chief Minister. Secondly, the Governor acts as a link between the Centre and the State.
He/She can reserve any bill passed by the State Legislature for the consideration of the
President of India. Thirdly, if he/she thinks that the government of the State is not functioning
according to the Constitution, he/she can report to the President. In that case under Article
356, the President’s Rule is imposed, the State Council of Ministers is removed and the State
Legislature is dissolved or put under suspension. During such an emergency, the Governor
rules on behalf of the President.
Relationship between the Governor and the Council of Ministers
As we have seen above, the State executive consists of the Governor, the Chief Minister and
the Council of Ministers. Normally, the Governor exercises all his/her powers on the advice
of the Council of Ministers.
We know that when the Chief Minister is sworn in, the Governor simply performs a formal
duty. He/She invites the leader of the majority in the State Legislative Assembly to be sworn
in as the Chief Minister.
The members of the Council of Ministers are also appointed by the Governor on the
recommendations of the Chief Minister. The majority can consist of members of the
Legislative Assembly belonging to one party or a group of parties and independents.
However, when there is no clear majority in the House electing one candidate as its leader,
the Governor can exercise his/her discretionary power. Similarly, although theoretically, the
Ministers hold their offices during the pleasure of the Governor, in practice the Chief
Minister and the Council of Ministers remain in office till they enjoy the support of the
majority in the Legislative Assembly.
The Governor can dismiss them only when the President’s Rule is imposed. The Chief
Minister is required to communicate to the Governor all the decisions of the Council of
Ministers.
He/She may call for necessary information related to the state administration. If a Minister
individually makes a decision, the Governor may ask the Chief Minister to place such a
matter for consideration of the Council of Ministers. It is true that the Governor is a nominal
head and the real powers are exercised by the Council of Ministers headed by the Chief
Minister.
But it will not be correct to say that the Governor is just a constitutional or ceremonial head.
He/ She can exercise his/her powers effectively under certain circumstances, especially when
there is political instability in the State.
Since he/she is a link between the Centre and the State, he/she becomes very effective, if the
central government sends directions to the State government. The discretionary powers also
make the Governor act as a real executive in particular circumstances.
Chief Minister
The position and powers of the Chief Minister of a State constitute almost a replica of
those of his prototype in the Central Cabinet. Like the Prime Minister of India, he can be
described as the “keystone of cabinet-arch”, “a moon among the lesser stars” or a “sun
around whom the other Ministers revolve like planets.” In fact, he is central to the formation,
and central to the death of the Council of Ministers.
Appointment, Power, Function and Position:
The Chief Minister is appointed by the governor. Art. 164 of the Constitution provides that
there shall be a Council of Ministers with the Chief Minister at its hand to aid and advise the
governor.Once the election to the Legislative Assembly is over the task of forming the
government begins. The party with the majority in the Legislative Assembly (Vidhan Sabha)
is entitled to form the government. It is upon his recommendation that ministers are
appointed. However, some of the important powers and functions of the Chief Minister are as
under:
Powers and Functions of the Chief Minister:
The Chief Minister holds a pivotal position in the working of the State Government. He has
enormous powers and vast responsibilities.
1. To Aid and Advice the Governor:
The Chief Minister is the link between the Cabinet and the Governor. It is he who
communicates to the Governor all decisions of the Council of Ministers. He has to furnish
such information relating to the administration of the State as the Governor may call for. The
Governor can submit to the consideration of the Council of Ministers any matter on which
decision has been taken by a Minister but which has not been considered by the Council of
Ministers.
The Governor appoints a large number of top officials of the State. He also summons and
prorogues the sessions of State Legislature. All such powers are exercised by the Governor
on the advice of the Chief Minister. The Chief Minister, however, has no right to give advice
to the Governor in relation to the functions which he exercises in his discretion.
2. The Chief Minister is at the Head of the Council of Ministers:
As Head of the State Cabinet, the Chief Minister enjoys the following powers:
(i) Formation of the Ministry:
The other Ministers are appointed by the Governor on the advice of the Chief Minister. The
Chief Minister has a free hand in preparing the list of his colleagues. The Governor may
suggest the names of the persons to be included in the Ministry, but he cannot insist upon any
person to be included in the Ministry. Assigning departments or portfolios to the Ministers is
done by the Governor on the advice of the Chief Minister.
(ii) Removal of Ministers:
The Ministers hold office during the pleasure of the Governor. This, however, does not mean
that the Governor can dismiss his Ministers at his will. The Government is in fact dependent
on the Chief Minister. Therefore, the Chief Minister can reconstruct his Ministry as and when
he likes. He may ask anyone of his colleagues to resign. If he declines, he will be dismissed
by the Governor.
(iii) The Chief Minister Presides over the Meetings:
As Chairman of the Cabinet, the Chief Minister has a position which enables him to impose
his decision. It ‘is he who controls the agenda for the Cabinet meetings. It is for the Chief
Minister to accept or reject proposals for Cabinet discussion.
(iv) Co-ordinates the Working of various Departments:
The Chief Minister supervises and coordinates policies of the several Ministers and
Departments. Several ministries are involved in the formulation and implementation of a
policy.The Chief Minister must bring these activities into reasonable relationship with one-
another. In matters of public order, roads and bridges agriculture, land revenue and
production, supply and distribution of goods, he plays a special role in directing the policy of
the Government.
3. The Chief Minister is the Leader of the House:
The Chief Minister is the leader of the State Legislative Assembly. All principal
announcements of policy are made by him. The Chief Minister intervenes in debates of
general importance. He can appease an angry House by promising immediate relief or
concessions when needed.
Position of the Chief Minister:
The Chief Minister’s position is pre-eminent in the State governmental system. In practice,
his position will be imposing only when his party commands a clear majority in the State
Legislature. When it is a coalition government, it becomes difficult to safeguard the principle
of collective responsibility also. Much of the time and energy of the Chief Minister will, in
that case, be wasted on keeping his team united and sufficiently disciplined.
Council of Ministers
The Chief Minister is appointed by the Governor who also appoints other ministers on the
advice of the Chief Minister. The Council of Ministers is collectively responsible to
legislative assembly of the State.
Council of Ministers with Chief Minister as head aids and advises Governor in exercise of his
functions except in so far as he is by or under the Constitution required to exercise his
functions or any of them in his discretion. In respect of Nagaland, Governor has special
responsibility under Article 371 A of the Constitution with respect to law and order and even
though it is necessary for him to consult Council of Ministers in matters relating to law and
order, he can exercise his individual judgement as to the action to be taken.
Similarly, in respect of Arunachal Pradesh, Governor has special responsibility under Article
371H of the Constitution with respect to law and order and in discharge of his functions in
relation thereto. Governor shall, after consulting Council of Ministers, exercise his individual
judgement as to the action to be taken. These are, however, temporary provisions if President,
on receipt of a report from Governor or otherwise is satisfied that it is no longer necessary for
Governor to have special responsibility with respect to law and order, he may so direct by an
order.
Likewise, in the Sixth Schedule which applies to tribal areas of Assam, Meghalaya, Tripura
and Mizoram as specified in para 20 of that Schedule, discretionary powers are given to
Governor in matters relating to sharing of royalties between district council and state
government. Sixth Schedule vests additional discretionary powers in Governors of Mizoram
and Tripura in almost all their functions (except approving regulations for levy of taxes and
money lending by non-tribal by district councils) since December 1998. In Sikkim, Governor
has been given special responsibility for peace and social and economic advancement of
different sections of population.
All Governors while discharging such constitutional functions as appointment of Chief
Minister of a state or sending a report to President about failure of constitutional machinery
in a state or in respect of matters relating to assent to passing a bill in the state assembly.
4.3 LEGISLATURE
Chapter III of Part VI of the Constitution is concerned with the State Legislature. It comprises
state legislature and executives. Articles 168 to 212 in Part VI of the Constitution deal with
the organisation, composition, duration, officers, procedures, privileges, powers and so on of
the state legislature. The legislature is that organ of the government which passes the laws of
the government.
Legislature may be of two types:- Unicameral or Bicameral. A system in which there is only
one House of the Legislature, it is called Unicameralism, while if there are two Houses of the
Legislature, it is known as Bicameralism. Most national Legislatures arc bicameral is having
two Houses. The term ‘legislature’ is a generic term meaning a body which legislates.
Combining the two views, we can say Legislature or Parliament is that branch of government
which performs the function of law making through deliberations.
The term ‘ Legg means law and “lature’ the place and etymologically Legislature means a
place for law-making. Another term, which is used as a synonym of Legislature, is
‘Parliament.’ It is the agency which has the responsibility to formulate the will of the state
and vest it with legal authority and force. In simple words, the legislature is that organ of the
government which formulates laws. Legislature enjoys a very special and important in every
democratic state. This word stands derived from the French word ‘Parley’ which means to
‘talk’ or to discuss and deliberate. In this way, we can say ‘Parliament’ means the place
where deliberations are held. It is the assembly of the elected representatives of the people
and represents national public opinion and power of the people.
State Legislature – Legislative Assembly
The Legislative Assembly is the popularly elected chamber and is the real Centre of power in
a State. The maximum strength of an assembly must not exceed 500 or its minimum strength
fall below 60. But some of the States have been allowed to have smaller Legislative
Assemblies, e.g. Sikkim, Arunachal Pradesh, Goa, etc.
The territorial constituencies demarcation should be done as far as possible, such that the
ratio between the population of each constituency and the number of seats allotted to it is the
same all over the State. Apart from these general provisions, there are also special provisions
with respect to the representation of SC and ST. In case the Governor feels that the Anglo-
Indian community is not adequately represented, he can nominate one member of that
community to the assembly.
State Legislature – Legislative Council
The Legislative Council of a State Comprises not more than one-third of the total number of
members in the Legislative Assembly of the State and in no case less than 40 members.
However, in Jammu and Kashmir, the strength is only 36. The system of the composition of
the Council as provided for in the Constitution is not final. The final power is given to the
Parliament of the Union. But until the Parliament legislates on the subject, it shall be as
provided for in the Constitution, which is described below;
Duration of Legislative Assembly & Legislative Council
It will be a partly nominated and partly elected body, the election being an indirect one and in
accordance with the principle of proportional representation by the single transferable vote.
The members being drawn from various sources, the Council shall have a variegated
composition. Broadly speaking 5/6 of the total number of members of the Council shall be
indirectly elected and 1/6 will be nominated by
The duration of the Legislative Assembly is five years. The Governor has the power to
dissolve the Assembly even before the expiry of its term. The period of five years, may,
while a proclamation of emergency is in operation, be extended by the Parliament by law for
a period not exceeding one year at a time and not extending in any case beyond a period of
six months after proclamation has ceased to operate (Article 172(1)). Unlike the Legislative
Assembly, the Legislative Council is not subject to dissolution. It is a permanent body unless
abolished by the Legislative Assembly and Parliament by the due procedure. But no person
can be a permanent member of the Council as one-third of the members of the Council retire
on the expiry of every second year. It amounts to a term of six years for each member. There
is no bar on a member getting re-elected on the expiry of his term.
(a) one-third of the total number of members of the Council would be elected by electorates
consisting of members of local bodies like the municipalities and the district boards.
(b) one-twelfth of the members would be elected by electorates comprising of graduates of
the standing of three years dwelling in that particular state.
(c) one-twelfth of the members would be elected by electorates consisting of teachers who
have been in the teaching profession for at least 3 years in educational institutes in that state,
which are not lower than secondary schools in the standard.
(d) one-third would be elected by members of the Legislative Assembly from amongst people
who are not Assembly members.
(e) The rest would be nominated by the Governor from persons having knowledge or
practical experience in matters like science, literature, cooperative movement, art and social
service. (The Courts can’t question the propriety or bonafide of the Governor’s nomination.)
Qualifications of Members of Legislative Assembly
A person shall not be qualified to be selected to occupy a seat in the Legislature of a State
unless he/she
(a) is an Indian citizen;
(b) is 25 years or above for Legislative Assembly, and is 30 or above for Legislative Council,
and
(c) possess such other qualifications as may be prescribed by the Parliament.
Thus, the Representation of the People Act, 1951, has provided that a person shall not be
elected either to the Legislative Assembly or the Council unless he is himself an elector for
any Legislative Assembly constituency in that State. A person can be disqualified for being
selected as and for being a member of the Legislative Assembly or Legislative Council of a
State if he/she
(a) holds an office of profit under GOI or any State Government, other than that of a Minister
at the centre or any state or an office declared by a law of the State not to disqualify its holder
(many States have passed such laws declaring certain offices to be offices the holding of
which does not disqualify its holder for being a member of the Legislature of that States)
(b) is mentally unsound as declared by a competent Court
(c) is an undischarged insolvent
(d) is not an Indian citizen or has voluntarily got the citizenship of a foreign State or is under
any acknowledgement of adherence/allegiance to a foreign nation
(e) is so disqualified by or under any law made by Parliament
Thus, the Representation of the People Act, 1951, has laid down some grounds of
disqualification, like conviction by a Court, having been found guilty of electoral
malpractice, being a manager or director of a corporation in which Government possesses a
financial interest. Article 192 says that if any question arises as to whether a member of a
House of the Legislature of a State has become subject to any of the disqualifications
mentioned above, the matter will be referred to the Governor of the state who has to act in
accordance with the opinion of the Election Commission. His decision is final and not liable
to be questioned in Court.
Facts about Speaker & Deputy Speaker:
1. A Speaker vacates his office if he ceases to be a member of the Assembly.
2. He may also resign his office at any time.
3. A speaker may be removed from office by a resolution of the Assembly passed by a
majority of all the then members of the Assembly after fourteen days’ notice of the
intention to move such a resolution.
4. Speaker does not vacate his office on the dissolution of the Assembly.
5. He continues to be the Speaker until immediately before the first sitting of the
Assembly after the dissolution.
6. While the office of the Speaker is vacant, the Deputy Speaker performs his duties.
7. The duties and powers of the Speaker are, broadly speaking the same as those of the
Speaker of the House of the People (Lok Sabha).
Facts about Chairman & Deputy Chairman:
1. The Council chooses from amongst its members a Chairman and a Deputy Chairman.
2. Both vacate their offices if they cease to be members of the Council or resign from its
membership.
3. They can also be removed by a resolution of the Council passed by a majority of all
the then members of the Council, provided fourteen days notice to move such
resolution of removal has been given.
4. When the resolution for removal is under discussion against the Chairman or the
Deputy Chairman, the concerned person shall not preside at the sitting of the Council,
although he may be present at such a sitting and has the right to speak in, and
otherwise to take part in the proceedings of the Council.
5. He shall be entitled to vote only in the first instance on such resolution or on any other
matter during such proceedings.
6. In case of an equality of votes, he does not exercise a casting vote to which he is
otherwise entitled under Article 189.
7. The Chairman presides at all sittings of the Council and in his absence the Deputy
Chairman.
8. During the absence of both the Chairman and the Deputy Chairman, such other person
as may be determined by the rules of procedure of the Council shall preside; or, if no
such person is present, such other person as may be determined by the Council shall
act as Chairman.
9. While the office of the Chairman is vacant, the duties of his office are performed by
the Deputy Chairman. If the office of the Deputy Chairman is also vacant, such
member of the Council as the Governor may appoint shall perform all such duties
connected with the office of the Chairman.
Powers & Functions of State Legislature
The functions of the states’ Legislative Council are only advisory in nature. If any Bill is
passed by the Legislative Assembly and sent to the Council, and the Council refuses to give
its approval, then the Assembly has the right to reconsider it. The assembly may pass it with
or without the amendments proposed by the Council, and again send it to the Council. When
a bill approved by the Assembly is sent to the Council for the first time, it may retain it for
three months, but in the case when it is sent for the second time and is kept in the Council for
one month only, the bill is deemed as having been passed. This evidently demonstrates the
Assembly’s absolute superiority over the LC. In the case of Money Bills, the State
Assembly’s powers are the same as those of the Lok Sabha. It is evident that the position of
the VidhanParishad is haplessly weak. Even, in theory, it cannot be compared to the Rajya
Sabha that, in spite of being the upper chamber of the Union Legislature, has some effective
powers.
(1) All the LC can do is delay the passing of a money bill by 14 days, a non-money bill
by 3 months or a non-money bill that is sent back to it with recommendations by 1
month.
(2) There is no provision in the Constitution for a joint sitting of the State Legislature. It
is to be noted that while the Vidhan Sabha can override the VidhanParishad, the vice
versa is never possible. A non-money bill that is passed by the VidhanParishad can
be rejected by the Vidhan Sabha more than once.
(3) The LC members do not participate in the election of the President of the country.
Apart from that, they do not have any meaningful role in any bill’s rectification nor
in a constitutional amendment.
In practical terms, the Legislature of a State implies its Legislative Assembly which possesses
the following major powers and functions:
1) (It can create laws on any subject in the State List; it can also create laws on the
Concurrent List provided the law does not contradict or conflict any law already made by the
Parliament.
(2) The Assembly asserts control over the Council of Ministers. Assembly members can
question the ministers, move motions and resolutions, and also pass a vote of censure in order
to dismiss the state government. The government ministry is collectively accountable to the
Legislative Assembly. If the ministry is defeated in the Assembly, it amounts to the passing
of a no-confidence vote against the government.
(3) The assembly controls the State’s finances. A money Bill can emerge from the Assembly
and it is considered passed by the LC after a lapse of fourteen days after reference made to it
by the Sabha. It could reject or pass the grants or reduce their amount indicating rejection or
adoption of the budget and hence, implying victory or defeat of the State Government.
Therefore, no tax can be levied or withdrawn without the consent of the Vidhan Sabha.
(4) The Assembly has constituent powers. With reference to Article 368, certain Bills of
Constitutional amendment after being passed by the Parliament would be referred to the
States for the process of ratification. In these cases, the Vidhan Sabha has a role to play. It
should give its judgement by passing a resolution by a simple majority indicating approval or
disapproval of the said Bill. There is a provision wherein the President shall refer to the state
assembly of a state before he recommends the introduction of a bill which concerns with the
alteration of the concerned state’s boundary lines or its reorganisation in such a manner that
its territory is increased or decreased.
(5) Some other powers of the State Assembly are as under:
(a) It elects its Speaker as well as Deputy Speaker. It can also remove them by a no-
confidence vote.
(b) It participates in the election of India’s President.
(c) It also considers reports presented by agencies such as the Auditor-General, State
Public Service Commission, and others.
Hence, it is evident that the Vidhan Sabha is the powerful and popular chamber of the State
Legislature. In theory, it is somewhat parallel to the Lok Sabha.
Limitations on the powers of State Legislature
(i) Certain types of Bills cannot be moved in the State Legislature without the previous
sanction of the President of India; (ii) Certain Bills passed by the State Legislature cannot
become operative until they receive the President’s assent after having been reserved for his
consideration by the Governor; (iii) The Constitution empowers Parliament to frame laws on
subjects included in the State List if the Council of States declares that it is necessary and
expedient in the national interest that Parliament should Legislate on these subjects; (iv)
Parliament can exercise the power to make laws for the whole or any part of the territory of
India with respect to any of the matters enumerated in the State List, while a Proclamation of
emergency is in operation; (v) The Legislative competence of Parliament can also extend to
the subjects enumerated in the State List during the operation of a proclamation of breakdown
of the Constitutional machinery.
Legislative Procedure
The Parliamentary procedure followed in the Assembly and the Council is the same as in
Parliament.
1. The State Legislature must meet at least twice a year and the interval between any two
sessions should not be more than six months.
2. The Governor delivers the opening address at the beginning of a new session in which
he outlines the policy of the State Government.
3. Any Bill may be introduced in either House of the Legislature except a Money Bill,
which can be introduced only in the Assembly. It has to go through three readings,
after which it goes to the Governor for his assent. The Governor may send it back for
reconsideration but once it is passed again by the Legislature, he cannot withhold his
assent.
4. He may reserve certain Bills for the consideration of the President, who may ask him
to place it before the Legislature for reconsideration. When it is passed again with or
without amendment it goes to the President for his consideration.
5. The President is not bound to give his assent even though the Bill has been considered
and passed for a second time by the State Legislature. In case the Assembly is
dissolved before a Bill is passed, or it is passed by the Assembly but is pending before
the Council, it will lapse.
6. But in case of Bills which have been duly passed by the Assembly, if there is only one
House in the State, and by the Assembly and the Council where there are two House,
and is awaiting the assent of the Governor or the President it does not lapse.
7. A bill which has been returned either by the Governor or the President for
reconsideration can be considered and passed by the newly constituted Assembly,
even though the Bill was originally passed by the dissolved House.
4.4 HIGH COURT
In the Indian single integrated judicial system, the high court operates below the Supreme
Court but above the subordinate courts. The judiciary in a state consists of a high court and a
hierarchy of subordinate courts. The high court occupies the top position in the judicial
administration of a state.
The institution of high court originated in India in 1862 when the high courts were set up at
Calcutta, Bombay and Madras. In 1866, a fourth high court was established at Allahabad. In
the course of time, each province in British India came to have its own high court. After
1950, a high court existing in a province became the high court for the corresponding state.
The Constitution of India provides for a high court for each state, but the Seventh
Amendment Act of 1956 authorised the Parliament to establish a common high court for two
or more states or for two or more states and a union territory. The territorial jurisdiction of a
high court is co-terminus with the territory of a state. Similarly, the territorial jurisdiction of a
common high court is co-terminus with the territories of the concerned states and union
territory.
At present, there are 25 high courts in the country. Out of them, four are common high
courts. Delhi is the only union territory that has a high court of its own (since 1966). The
other union territories fall under the jurisdiction of different state high courts. The Parilament
can extend the jurisdiction of a high court to any union territory or exclude the jurisdiction of
a high court from any union territory. Articles 214 to 231 in Part VI of the Constitution deal
with the organisation, independence, jurisdiction, powers, procedures and so on of the high
courts.
Organisation of High Court
Every high court (whether exclusive or common) consists of a chief justice and such other
judges as the president may from time to time deem necessary to appoint. Thus, the
Constitution does not specify the strength of a high court and leaves it to the discretion of the
president. Accordingly, the President determines the strength of a high court from time to
time depending upon its workload.
Judges
Appointment of Judges The judges of a high court are appointed by the President. The chief
justice is appointed by the President after consultation with the chief justice of India and the
governor of the state concerned. For appointment of other judges, the chief justice of the
concerned high court is also consulted. In case of a common high court for two or more
states, the governors of all the states concerned are consulted by the president.
Qualifications of Judges
A person to be appointed as a judge of a high court, should have the following qualifications:
1. He should be a citizen of India. 2. (a) He should have held a judicial office in the territory
of India for ten years; or (b) He should have been an advocate of a high court (or high courts
in succession) for ten years. From the above, it is clear that the Constitution has not
prescribed a minimum age for appointment as a judge of a high court. Moreover, unlike in the
case of the Supreme Court, the Consitution makes no provision for appointment of a
distinguished jurist as a judge of a high court.
Tenure of Judges
The Constitution has not fixed the tenure of a judge of a high court. However, it makes the
following four provisions in this regard:
1. He holds office until he attains the age of 62 years 5. Any questions regarding his age is to
be decided by the president after consultation with the chief justice of India and the decision
of the president is final.
2. He can resign his office by writing to the president.
3. He can be removed from his office by the President on the recommendation of the
Parliament.
4. He vacates his office when he is appointed as a judge of the Supreme Court or when he is
transferred to another high court.
Independence of High Court
The independence of a high court is very essential for the effective discharge of the duties
assigned to it. It should be free from the encroachments, pressures and interferences of the
executive (council of ministers) and the legislature. It should be allowed to do justice without
fear or favour. The Constitution has made the following provisions to safeguard and ensure
the independent and impartial functioning of a high court.
Jurisdiction and Powers of High Court
Like the Supreme Court, the high court has been vested with quite extensive and effective
powers. It is the highest court of appeal in the state. It is the protector of the Fundamental
Rights of the citizens. It is vested with the power to interpret the Constitution. Besides, it has
supervisory and consultative roles. However, the Constitution does not contain detailed
provisions with regard to the jurisdiction and powers of a high court. It only lays down that
the jurisdiction and powers of a high court are to be the same as immediately before the
commencement of the Constitution. But, there is one addition, that is, the Constitution gives a
high court jurisdiction over revenue matters (which it did not enjoy in the pre-constitution
era). The Constitution also confers (by other provisions) some more additional powers on a
high court like writ jurisdiction, power of superintendence, consultative power, etc.
Moreover, it empowers the Parliament and the state legislature to change the jurisdiction and
powers of a high court.
At present, a high court enjoys the following jurisdiction and powers:
1. Original jurisdiction.
2. Writ jurisdiction.
3. Appellate jurisdiction.
4. Supervisory jurisdiction.
5. Control over subordinate courts.
6. A court of record.
7. Power of judicial review.
The present jurisdiction and powers of a high court are governed by
(a) The constitutional provisions,
(b) The Letters Patent,
(c) The Acts of Parliament,
(d) The Acts of State Legislature,
(e) Indian Penal Code, 1860,
(f) Criminal Procedure Code, 1973, and
(g) Civil Procedure Code, 1908.
Role of Judiciary in India
The Judiciary in India performs various important role and functions which do not remain
confined within the traditional jurisdiction of Civil and Criminal. In case of violation of law,
a suit is filed against the offender. The judges, by way of interpreting the existing laws, make
new laws. The Supreme Court, decides constitutional questions. Superintendence over lower
courts is another function of the judiciary. The Supreme Court of India enjoys limited power
of judicial review in invalidating laws made by Parliament or State Legislatures. The judge
hears both sides and decides whether there has been a break of the law. The Supreme Court
sometimes gives advices to the executive and the legislature on constitutional points, if
sought for. The Judiciary acts as a protector of rights of the citizens guaranteed by the law of
the land and the constitution. The judges perform certain executive functions. Appointments
of officers and servants, maintenance of records, administration of staff etc. are performed by
the judiciary. The court can declare any law which transgresses a fundamental right as
invalid. In India the judiciary has the power to issue writs in the name of habeas corpus,
prohibition, mandamus, quo warranto and certiorari. The Judiciary is regarded as the
guardian of the constitution.
The importance of the judiciary in a democratic society can hardly be exaggerated. Judiciary
is a part of the democratic process. In many states the judiciary enjoys the power of judicial
review by virtue of which the judiciary decides the constitutional validity of the laws enacted
or of the decree issued. The primary it is a matter of no importance whether in his opinion the
law is good or bad; his study is applying it. he is primarily an interpreter of law. It can
invalidate such laws and decrees which are not constitutional. Judiciary is that branch of
government that interprets laws, punishes their breach and thereby protects individual's
liberties and rights against violation by fellow individuals and by state officials and organs.
Judiciary not only administers justice, it protects the rights of the citizens and it acts as the
interpreter and guardian of the constitution. The judiciary performs various functions in a
modern democratic state.
4.5 SUBORDINATE COURTS
The District Courts of India are the district courts of the State governments in India for
every district or for one or more districts together taking into account the number of
cases, population distribution in the district. They administer justice in India at a district
level. These courts are under administrative control of the High Court of the State to
which the district concerned belongs. The decisions of District court are subject to the
appellate jurisdiction of the High court.The state judiciary consists of a high court and a
hierarchy of subordinate courts, also known as lower courts. The subordinate courts are
so called because of their subordination to the state high court. They function below and
under the high court at district and lower levels.
Constitutional Provisions
Articles 233 to 237 in Part VI of the Constitution make the following provisions to regulate
the organization of subordinate courts and to ensure their independence from the executive.
Appointment of District Judges
The appointment, posting and promotion of district judges in a state are made by the
governor of the state in consultation with the high court. A person to be appointed as district
judge should have the following qualifications:
(a) He should not already be in the service of the Central or the state government.
(b) He should have been an advocate or a pleader for seven years.
(c) He should be recommended by the high court for appointment.
Appointment of other Judges
Appointment of persons (other than district judges) to the judicial service of a state are made
by the governor of the state after consultation with the State Public Service Commission and
the high court.
Control over Subordinate Courts
The control over district courts and other subordinate courts including the posting, promotion
and leave of persons belonging to the judicial service of a state and holding any post inferior
to the post of district judge is vested in the high court.
Interpretation
The expression ‘district judge’ includes judge of a city civil court, additional district judge,
joint district judge, assistant district judge, chief judge of a small cause court, chief
presidency magistrate, additional chief presidency magistrate, sessions judge, additional
sessions judge and assistant sessions judge. The expression ‘judicial service’ means a service
consisting exclusively of persons intended to fill the post of district judge and other civil
judicial posts inferior to the post of district judge.
Application of the above Provisions to Certain Magistrates
The Governor may direct that the above mentioned provisions relating to persons in the state
judicial service would apply to any class or classes of magistrates in the state.
Structure and Jurisdiction
The organisational structure, jurisdiction and nomenclature of the subordinate judiciary are
laid down by the states. Hence, they differ slightly from state to state. Broadly speaking,
there are three tiers of civil and criminal courts below the High Court. The district judge is
the highest judicial authority in the district. He possesses original and appellate jurisdiction
in both civil as well as criminal matters. In other words, the district judge is also the sessions
judge. When he deals with civil cases, he is known as the district judge and when he hears
the criminal cases, he is called as the sessions judge.
The district judge exercises both judicial and administrative powers. He also has supervisory
powers over all the subordinate courts in the district. Appeals against his orders and
judgements lie to the High Court. The sessions judge has the power to impose any sentence
including life imprisonment and capital punishment (death sentence). However, a capital
punishment passed by him is subject to confirmation by the High Court, whether there is an
appeal or not. Below the District and Sessions Court stands the Court of Subordinate Judge
on the civil side and the Court of Chief Judicial Magistrate on the criminal side.
The subordinate judge exercises unlimited pecuniary jurisdiction over civil suits. The chief
judicial magistrate decides criminal cases which are punishable with imprisonment for a
term up to seven years. At the lowest level, on the civil side, is the Court of Munsiff and on
the criminal side, is the Court of Judicial Magistrate. The munsiff possesses limited
jurisdiction and decides civil cases of small pecuniary stake . The judicial magistrate tries
criminal cases which are punishable with imprisonment for a term up to three years.
In some metropolitan cities, there are city civil courts (chief judges) on the civil side and the
courts of metropolitan magistrates on the criminal side. Some of the States and Presidency
towns have established small causes courts. These courts decide the civil cases of small
value in a summary manner. Their decisions are final, but the High Court possesses a power
of revision. In some states, Panchayat Courts try petty civil and criminal cases. They are
variously known as Nyaya Panchayat, Gram Kutchery, Adalati Panchayat, Panchayat Adalat
and so on.
Control over subordinate courts is the collective and individual responsibility of the High
Court as it is the head of the judiciary in the state and has got administrative control over the
subordinate courts in respect of certain matters.
LokAdalats in India
The concept of LokAdalat (People’s Court) is an innovative Indian contribution to the world
jurisprudence. The introduction of LokAdalats added a new chapter to the justice
dispensation system of this country and succeeded in providing a supplementary forum to the
victims for a satisfactory settlement of their disputes. This system is based on Gandhian
principles.
It is one of the components of ADR (Alternative Dispute Resolution) systems. In ancient
times, the disputes were referred to “Panchayats”, which were established at the village
level. Panchayats resolved the disputes through arbitration. It has proved to be a very
effective alternative to litigation.
This concept of the settlement of disputes through mediation, negotiation or arbitration is
conceptualized and institutionalized in the philosophy of LokAdalat. It involves people who
are directly or indirectly affected by dispute resolution.
Origin of LokAdalats
The concept of LokAdalats was pushed back into oblivion in last few centuries before
independence and particularly during the British regime. Now, this concept has, once
again, been rejuvenated. It has become very popular and familiar amongst litigants.
This is the system, which has deep roots in Indian legal history and its close
allegiance to the culture and perception of justice in Indian ethos. Experience has
shown that it is one of the very efficient and important ADR mechanisms and most
suited to the Indian environment, culture and societal interests.
Camps of LokAdalats were started initially in Gujarat in March 1982 and now it has
been extended throughout the Country.
The evolution of this movement was a part of the strategy to relieve heavy burden on
the Courts with pending cases and to give relief to the litigants. The first LokAdalat
was held on March 14, 1982 at Junagarh in Gujarat.
Maharashtra commenced the LokNyayalaya in 1984.
The advent of Legal Services Authorities Act, 1987 gave a statutory status to
LokAdalats, pursuant to the constitutional mandate in Article 39-A of the Constitution
of India.It contains various provisions for settlement of disputes through LokAdalat.
This Act mandates constitution of legal services authorities to provide free and
competent legal services to the weaker sections of the society and to ensure that
opportunities for securing justice are not denied to any citizen by reason of economic
or other disabilities.
It also mandates organization of LokAdalats to secure that the operation of the legal
system promotes justice on the basis of equal opportunity. When statutory recognition
had been given to LokAdalat, it was specifically provided that the award passed by
the LokAdalat formulating the terms of compromise will have the force of decree of a
court, which can be executed as a civil court decree.
The evolution of movement called LokAdalat was a part of the strategy to relieve
heavy burden on the Courts with pending cases and to give relief to the litigants who
were in a queue to get justice. It contains various provisions for settlement of disputes
through LokAdalat.
The parties are not allowed to be represented by the lawyers and encouraged to interact with
judge who helps in arriving at amicable settlement. No fee is paid by the parties. Strict rule
of Civil Procedural Court and evidence is not applied. Decision is by informal sitting and
binding on the parties and no appeal lies against the order of the LokAdalat.
Jurisdiction of LokAdalats
A LokAdalat shall have jurisdiction to determine and to arrive at a compromise or settlement
between the parties to a dispute in respect of:
1. any case pending before; or
2. any matter which is falling within the jurisdiction of, and is not brought before, any
court for which the LokAdalat is organized.
The LokAdalat can compromise and settle even criminal cases, which are compoundable
under the relevant laws.
LokAdalats have the competence to deal with a number of cases like:
1. Compoundable civil, revenue and criminal cases
2. Motor accident compensation claims cases
3. Partition Claims
4. Damages Cases
5. Matrimonial and family disputes
6. Mutation of lands case
7. Land Pattas cases
8. Bonded Labour cases
9. Land acquisition disputes
10. Bank’s unpaid loan cases
11. Arrears of retirement benefits cases
12. Family Court cases
13. Cases, which are not subjudiced
Powers of LokAdalats
1. The LokAdalat shall have the powers of a civil court under the Code of Civil
Procedure
2. 1908, while trying a suit, in respect of the following matters:
3. Power to summon and enforce the attendance of any witness and to examine him/her
on oath.
4. Power to enforce the discovery and production of any document.
5. Power to receive evidence on affidavits,
6. Power for requisitioning of any public record or document or copy thereof or from
any court.
7. Such other matters as may be prescribed.
Advantages of LokAdalats
1. Speedy Justice
2. Economical
3. Unburdening of Courts and thus reducing the backlog of cases
4. Maintenance of Cordial Relations (since the main thrust is on compromise and not
punishment.
Legislature and judiciary demand in India.
In India, the relationship between Legislative and Judiciary has generated intense debate
among jurists & political analysts. Has the over-active judiciary through its various
pronouncements overstepped or it is simply trying to fill the gaps where the legislatures
have failed to deliver? The issue in this regard came on July10,2013 when the Apex Court
ruled that MPs & MLAs on conviction of certain offences will be immediately
disqualified from holding membership of the House without being given 3 months of the
appeal, as was the case before. The ruling invited sharp criticism from political parties &
jurists. Former Supreme Court Judge MarkandeyaKatju expressed reservation over it
saying that it should be viewed as judiciary can’t make laws.
Making the laws is the work of legislature. Because the court struck down Section 8(4) of the
Representation of the Peoples Act 1951 which protects convicted lawmakers against
disqualification on a ground of pendency of appeal against their conviction of certain
offences: A person convicted any offences and sentenced to imprisonment for varying terms
under Section8(1),(2),(3) shall be disqualified for a further period of 6 years since release.
But the Section8(4) of the RP Act gives protection to MPs & MLAs as they can continue in
office even after conviction if an appeal is filed within 3 months.
Here if the judiciary is favoured then the power of the people will be distorted & will flout
the Provisions of the constitution & if the legislature is favoured then criminalization of
politics will be observed. On the other hand, the judiciary in modern states is playing a vital
role in the process of law making. The judiciary adds flesh & blood to the dry bones of law
by their interpretations & judgment. The executive has also some important functions e.g.
conducting fair & transparent election process, proper work which leads to proper judiciary
activities by which the gap of the constitution can be fulfilled.
CONCLUSION
The Constitution provides that a judge of the Supreme Court or the High Court cannot be
removed by any executive authority. He can only be removed by impeachment. The process
of impeachment is parallel to the process prescribed for the impeachment of the President.
There has been no case so far where a judge was removed by impeachment.
Any citizen of India can approach the judiciary if he feels any of his fundamental right has
been infringed by an act of the executive. Courts can also be approached through Public
Interest Litigations. The courts have thus been acting a braking force that comes into action
any time the executive tries to misuse its powers.
While the people of India have their reservations about the fairness of government actions,
they have complete faith in the judiciary. This is good for the health and survival of
democracy in the country.
Exercise
41. Write a note on state administrative executive.
42. Writ on state legislature.
43. Elaborate High Court
44. Explain about subordinate courts.
45. Explain about origin of lokadalats.
46. Write on jurisdiction of lokadalats.
47. Explain on powers of lokadalats..
UNIT- V
5.1 INTRODUCTION
5.2 CENTRE – STATE RELATION
5.3 LEGISLATIVE RELATIONS
5.4 ADMINISTRATIVE RELATIONS
5.5 FINANCIAL RELATIONS
5.6 PROVISION FOR WEAKER SECTIONS
5.7 EMERGENCIES – AMENDMENTS
UNIT - 5
OBJECTIVES
1. Take an outlook on Centre - State Relations.
2. Study on Legislative Relation
3. Brief study on Administrative relations
4. Elaborate the financial relation of Centre – State.
5. Study on provisions for weaker sections.
6. Explaining about Emergencies and Amendments
7. Constitutional Bodies – Powers, Functions And Responsibilities
5.1 INTRODUCTION
The Indian constitution provides for a framework with powers divided between the Centre
and the states. The flameless of the Indian constitution chose a federal polity for the country
taking into consideration the situation fold- the prevailing in India at that time. "the
foundation federal structure had been laid by the British before 1947 itself and this can be
seen especially in the Acts of 1919 and 1935. It is on this foundation that the Constituent
Assembly raised the federal super-structure for India. The development of federal polity~ as a
matter of fact~ was felt necessary in view of the vast size, regional diversities and social
fragmentation of India. Although the British ruled India as a unitary system, certain
mechanism of administrative decentralization were introduced prior .to independence. The
sixty years between the passing of Indian council Act 1861 ~and the inauguration of Montfort
reforms in 1921 formed a period during which a significant measure of delegation of powers
to the provinces took place without, of making any fundamental changes in the Centre
province relation.
The new policy of decentralization was by no means, applied with any marked degree of
consistency. All the same, the period saw a general, though by no means systematic
broadening of the sphere in which provincial governments could exercise some freedom of
initiative and decision. Even though Central formally and constitutionally, the authority of the
government remained supreme and all embracing. However, the British attempt to impose a
Centralized administration on India suffered inevitably under the impact of and natural
dynamics of the country's sub-continental size her varying local conditions and problems.
Decentralisation was unavoidable in any case. What hastened it, was the risk of nationalism
and pol1cies followed by the British in meeting the challenges posed by it • These policies
which constituted one of the political foundations of Indian federalism generated other factors
in the shape of linguist, Muslim separatism and the problem of Indian states. The interplay of
these factors made inevitable, indeed, a course for the establishment of federal polity in India.
The unit give a brief explanation of the centre state relations in many dimensions with the
other two factors like provisions for weaker sections and emergencies and amendments.
5.2 CENTRE – STATE RELATIONS
The evolution of Centre State Relations can be classified into 4 different phases, with the first
phase beginning in 1950 for a span of 17 years and finally culminating with the fourth phase
beginning from 1989. Government of India had appointed Sarkaria Commission in 1983 to
reduce the conflicts between the Central Government and State Governments. This article
throws light on the centre-state relations soon after India attained Independence.
The framers of the Indian Constitution established a strong centre and visualized federalism
as a functional instrument for creation of an Indian nation and a strong cohesive state. This
has been further reinforced by the actual working of the federation during the past 66 years.
The study of this period can be classified as in the following four phases at different time
periods
1. The first phase (1950-67)
2. The second phase (1967-77)
3. The third phase (1977-89)
4. The fourth phase (1989-onwards)
Centre – State Relations – First Phase 1950-67 (Domination by Centre)
Party system is perhaps the most important intervening variable that significantly influences
the working of a federal political system. This phase was marked by the domination of the
Congress party both at the centre as well as in the states. The Congress party along with the
charismatic leadership of Nehru further strengthened the centre. The issues in centre-state
relations were resolved at the level of the party as its internal issue. The Planning
Commission and the National Development Council (NDC), both created through executive
resolutions, became Centre’s instruments of domination over states. The Planning
Commission was to look after social service-education, medicine, health, agriculture,
cooperation, social welfare and industrial housing which were all state subjects. The NDC
was seen as an experiment on cooperative federation. But in one of its meetings, the states
surrendered to the centre their sales tax on textile, sugar and tobacco. This period also saw
misuse of Article 356 against the Communist government in Kerala in 1959.
Nehru took democracy seriously enough, which was reflected in his monthly letters to state
chief ministers in which he informed them of the state of the nation and solicited their
opinion in an attempt to build national consensus. The Indian National Congress
institutionalized the principle of consultation, accommodation and consensus through a
delicate balancing of the factions within the ‘Congress System’. It also practised co-optation
of the local and regional leaders in the national power structure and the system of sending out
Congress ‘observers’ from the centre to mediate between the warring factions in the
provinces, thus simultaneously ensuring the legitimacy of the provincial power structure in
running its own affairs as well as the role of Central mediation.
Thus, the first phase of Indian Federalism was marked by central domination over the states
which even ceded some of their powers to the centre.
The Zonal Councils were created under the States Reorganization Act as advisory bodies to
foster cooperative federalism in evolving uniform policies in socio-economic matters.
However, they were formed within the system of central domination over the states
Centre – State Relations – The Second Phase (1967-77) – 42nd Amendment to
Constitution
The fourth general election was an important event in the federal dynamics of the country,
which drastically reduced the overwhelming majority of the Congress party to a simple
majority at the centre while it lost nearly half of the Indian states to the opposition or
coalitions. It led to a radical change in the nature of centre-state relations. This phase saw the
emergence of assertion on the part of states and the centre reacting to such assertions by
demonstrating its effective power.16 The Congress party attempted to regain political power
by engineering defections and all other means at its disposal including Article 356. The
Rajasthan case was a classic example where the Governor recommended imposition of
president’s rule in order to prevent government formation by the coalition of opposition
parties. The Assembly was suspended. Meanwhile, the Congress party engineered defections
and finally formed the government.
During the period 1967-71, the Union-state conflict was at its peak. The Union government
refused to accept assertions of rights by the non-Congress state governments. But the most
important factor during this period was the emergence of regional forces to fill up the vacuum
created by the weakening of the Congress party. Mrs. Gandhi used the Congress dominance
to make the centre stronger and the controversial 42nd Amendment to the constitution made
centre more powerful at the expense of the states. This centralization process culminated in
the infamous Emergency of 1975-77.
Centre – State Relations – The Third Phase (1977-89) – Sarkaria Commission
The 1977 election saw the Congress losing power at the centre for the first time since
independence. It brought the Janata Party to power which believed in the decentralization of
economic and political power. However, the first act of this government was the dismissal of
nine state governments ruled by the Congress on the specious argument that they had lost
people’s faith as reflected in their performance in the 10th Lok Sabha elections. It also
scrapped Article 357(A) through the 44th Amendment Act which empowered the centre to
deploy army and paramilitary forces for dealing with any grave law and order situation in the
states. The Congress returned to power in the mid-term election in 1980 and it dismissed the
Janta party governments in nine states using the same specious argument like by its
predecessor. In a number of states like Andhra Pradesh, Tamil Nadu, Karnataka, West
Bengal, etc., government was formed by the regional parties which demanded more
autonomy. The Akali Dal in Punjab too supported these demands. The four southern states
declared the formation of a regional council to buttress the demand for more autonomy. All
this led to the appointment of Sarkaria Commission to look into the centre-state relations.
The Rajiv Gandhi government tried to build alliances with the regional parties due to political
compulsions as seen in Rajiv-Longwal pact and the Assam accord. However, he also tried to
centralize powers by calling the conference of District Magistrates to deal directly with them,
thereby bypassing the state governments. He also repeated this by introducing the Panchayati
Raj Bill and JawaharRojgarYojana.
1989 Onwards: The Era of Multi-Party System
The 1989 general election was a landmark in the history of Indian polity as it ushered in a
new era of multiparty system and initiated the process of greater federalization. With the
defeat of the Congress party, this election ended one party rule at the centre and marked the
beginning of coalition government at the centre. The regional parties became an integral part
of the federal cabinet and started asserting themselves in a forceful manner at the centre. This
process of greater federalization, for the convenience of study, can be divided into the
Political federalization and Economic federalization.
Constitution arrangement between the Centre and the State
The constitution lays down the division of powers between the Centre and the states in
the Seventh Schedule in three lists exhausting “all the ordinary activities of government”.
a. Union List
b. State list
c. Concurrent list.
The Union List gives the Centre exclusive authority to act in matters of national
importance and includes among its 97 items defence, foreign affairs, currency, banking
duties and income taxation. The State List, with 66 items includes public order and police,
welfare, health, education, local government, industry, agriculture, and land revenue. The
Concurrent List contains 47 items over which the Centre and the states share authority.
5.3 LEGISLATIVE RELATIONS
The constitution’s Part XI outlines the relationship between the Union and the States,
under which Articles 245-255 deal with the distribution of legislative powers between the
two. According to Article 245, parliament may make laws for the whole or any part of the
territory of India, and the state legislature can make laws for the whole or any part of the
province, however, no law made by parliament shall be deemed to be invalid on the
ground that it would have extra-territorial operation.
Article 246 specifies the subjectmatter of laws made by parliament and by the state
legislatures. It empowers parliament
to make laws on all the three lists - the Union list, the State list and the Concurrent list.
Article 246(4) allows parliament to make laws with respect to any matter for any part
of
the territory of India not included [in a state] notwithstanding that such matter is a matter
enumerated in the State List. Article 247 talks about power of parliament to provide for
the establishment of certain additional courts for the better administration of laws made
by parliament or of any existing laws with respect to a matter enumerated in the Union
List.
Article 248 provides residuary powers of legislation whereby, the Parliament has
exclusive power to make any law with respect to any matter not enumerated in the
Concurrent List or State List and such power shall include the power of making any law
and imposing a tax not mentioned in either of those Lists.
Article 249 provides power to parliament to legislate with respect to a matter in the
State
List in the national interest. Under Article 249, the Council of States or the Rajya Sabha
(by passing resolution with support of two-thirds of people present and voting) may give
the parliament special legislative powers over any matter included in the state legislative
list.
Article 250 provides for power of parliament to legislate for the whole or any part of
the
territory of India with respect to any matter in the State List if a ‘Proclamation of
Emergency’ is in effect. In case of inconsistency between the laws made by Parliament
under articles 249 and 250 and laws made by the Legislatures of States, under Article
251, the law passed by Parliament, irrespective of when it was authorized, shall prevail,
till deemed inoperative over state law.
Article 252 provides that by agreement between the states or by consent of two or
states
legislatures, it would be lawful for Parliament to make laws with respect to any matters
included in the State List relating to those states. It shall also be open to any other state to
adopt such Union legislation in relation to itself by a resolution passed in that behalf in
the state legislature (Basu2009 : 330).
Article 253 Parliament has power to make any law for the whole or any part of the
country for implementing any treaty, agreement or convention with any other country or
countries, or any decision made at any international conference, association or other
body.
Article 254 states that in case of inconsistency between laws made by Parliament
and laws made by the Legislatures of States in matters of Concurrent List, the law made
by the Parliament shall prevail over state law and shall continue till the central law is
declared void. Article 255 states that no Act of Parliament or of the Legislature of a State,
and no provision in any such Act, shall be invalid by reason only that some
recommendation or previous sanction required by this Constitution was not given, if
assent to that Act was given either by the Governor or by the President.
Generally, in typical federation along with the distribution of legislative and administrative
powers, the financial resources of the country are also so distributed as to ensure financial
independence of the units. However, the Indian Constitution does not make a clear cut
distribution of the financial resources and leaves much to be decided by the Central
Government from time to time. The financial resources which have been placed at the
disposal of the state are so meagre that they have to look up to the Union Government for
subsidies and contributions. This throws light on the distribution of financial resources in
India.
5.4 ADMINISTRATIVE RELATIONS
The framers of Indian Constitution made detailed provisions in the Constitution in regard to
administrative relations between the Centre and State to ensure minimization of conflict
between the two. In the sphere of administrative relations also the Constitution shows a
distinct leaning in favour of the Union. It provides for a dual polity. Each State has its own
government and administration which exercises administrative powers in respect of the
subjects enumerated in the State List. The Union Government has exclusive administrative
jurisdiction over the subjects of the Union List and the residuary subjects. The Constitution
provides for concurrent administrative jurisdiction to the Union and the States over the
subjects of the Concurrent List. Part XI, Chapter II of the Constitution, lays down the
administrative relations between the Union and States. When we analyse these provisions we
find that in the sphere of administrative relations also the Union enjoys a superior position
vis-a-vis the States The administrative jurisdiction of the union and the state Governments
extends to the subjects in the union list and state list respectively, which clearly establishes
the superiority of the Union Government in the administrative sphere as well. In addition the
Constitution contains a number of provisions which accord a position of superiority to the
Union Government.
The articles related to administrative relations are,
Articles 256-261 deal with the administrative relations between the Union and the
States.
Articles 256 and 257 direct states to ensure compliance with the parliamentary laws and
any existing laws which apply in that state, and also direct that the executive power of the
Union shall extend to the giving of such directions to a state as the Government of India
deems necessary for that purpose. Under Article 258 and 258A the governor of a State
may, with the consent of the central government, entrust either conditionally or
unconditionally to that government, or to its officers functions in relation to any matter to
which the executive power of the State extends.
Under Article 260, the central government may by agreement with the government
of any
territory not being part of the territory of India, undertake any executive, legislative or
judicial functions vested in the government of such territory, but every such agreement
shall be subject to, and governed by, any law relating to the exercise of foreign
jurisdiction for the time being in force.
Under Article 261 full faith and credit shall be given throughout the territory of India
to
public acts, records and judicial proceedings of the Union and of every State. Article
261(3) provides that the final judgments or orders delivered or passed by civil courts in
any part of the territory of India shall be capable of execution anywhere within that
territory according to law.
Article 262 provides that parliament by law may provide for the adjudication of any
dispute or complaint with respect to the use, distribution or control of waters of, or in,
any inter-State river or river valley and also provide for the exclusion of the jurisdiction
of all Courts, including the Supreme Court, to entertain such disputes. Exercising this
power, parliament has enacted the Inter-State Water Disputes Act (1956), providing for
the constitution of an ad hoc tribunal for the adjudication of any dispute or complaint
with respect to the use, distribution or control of waters of, or in, any inter-State river or
river valley. Under Article 263(a) the president can establish an inter-State council for
inquiring into and advising upon inter-State disputes, if at any time it appears to him that
the public interests would be best served by the establishment of such a council (Basu
2009: 353).
A new turn was given to the Centre-State Relations in the administrative sphere by the Forty-
Second amendment, which empowered the Central Government to deploy armed forces for
dealing with any grave situation of law and order in the States. The contingents so employed
were to act in accordance with the instructions of the Central Government and not to work
under the direction, superintendence and control of the state government concerned, unless
specifically directed by the Central Government. This change naturally greatly restricted the
autonomy of the states and was resented by the states. Ultimately this provision was nullified
by the 44th Amendment. It is thus evident that in the administrative sphere the states cannot
act in complete isolation and have to work under the directions and in cooperation with others
of the federation.
5.5FINANCIAL RELATION
The Indian Constitution has elaborate provisions regarding the distribution of revenues
between the Union and the States.
Article 268 to 293 in Part XII deal with the financial relations. The financial relations
between the Union and the States can be studied under the following heads:
Taxes and duties levied by the Union, but collected and appropriated by the
States: Stamp duties and duties of excise on medical and toilet preparations are levied
by the Government of India, but collected and appropriated by the States, within
which such duties are leviable, except in the Union Territories, where they are
collected by the Union Government (Art. 268). The proceeds of these duties levied
within any State are assigned to that State only and do not form a part of Consolidated
Fund of India.
Service tax levied by the Centre, but collected and appropriated by the Centre and the
States: Taxes on services are levied by the Centre, but their proceeds are collected and
appropriated by both the Centre and the States. Principles of their collection and
appropriations are formulated by the Parliament.
Taxes levied and collected by the Union, but assigned to the States within which
they are leviable (Art.269):
a) Succession duty in respect of property, other than agricultural land.
b) Estate duty in respect of property, other than agricultural land.
c) Terminal taxes on goods or passengers carried by railways, sea or air.
d) Taxes on railway fares and freights taxes on transactions in Stock Exchanges.
Taxes levied and collected by the Union and distributed between the Union and
the States (Art.270): Certain taxes are levied as well as collected by the Union, but
their proceeds are divided between the Union and the States in a certain proportion in
order to effect an equitable distribution of the financial resources.
This category includes all the taxes and duties referred to in the Union List, except the three
categories mentioned above, any surcharge and any cess levied for specific purposes. The
manner of distribution of net proceeds of these taxes is prescribed by the President, on the
recommendation of the Finance Commission.
Surcharge on certain taxes (Art.271): The Parliament is, authorized to levy
surcharge on the taxes mentioned in the above two categories (Art.369 and Art.370)
and the proceeds of such surcharges go to the Centre exclusively and are not
shareable.
Taxes levied and collected and retained by the states: These are the taxes
enumerated in the State List (20 in number) and belong to the States exclusively.
Grants-in-Aid: The Parliament may make grants-in-aid from the Consolidated Fund
of India to such States as are in need of assistance (Art.275), particularly for the
promotion of welfare of tribal areas, including special grant to Assam.
These are called statutory grants and made on the recommendation of the Finance
Commission. Apart from this, Art.282 provides for discretionary grants by the Centre
and States both, for any public purposes. The Centre makes such grants on the
recommendation of the Planning Commission (an extra-constitutional body).
Loans: The Union Government may provide loan to any State or give guarantees with
respect to loans raised by any State.
Previous sanction of the President (Art 274): No Bill or amendment can be
introduced or moved in either House of Parliament without the previous sanction of
the President, if:
1. It imposes or varies any tax in which the States are interested; or
2. It varies the meaning of the expression “Agricultural Income” as defined in the Indian
Income-Tax Act; or
3. It affects the principles on which money are distributed to the States; or
4. It imposes a surcharge on the State taxes for the purpose of the Union.
According to Article 301, Freedom of Trade, Commerce and Intercourse
throughout the territory of India is guaranteed, but Parliament has the power to
impose restrictions in public interest.
Although taxes on income, other than agricultural income, are levied by the Union,
yet the State Legislatures can levy taxes on profession, trade, etc.
Distribution of non-tax revenues: Non tax revenues from post and telegraph,
railways, banking, broadcasting, coinage and currency, central public sector
enterprises and escheat (death of a person without heir) and lapse (termination of
rights) go to the Centre, while State receives non-tax revenues from irrigation, forests,
fisheries, state public sector enterprises and escheat and lapse (if property is situated
in that state).
Provision has been made for the constitution of a Finance Commission to
recommend to the President certain measures for the distribution of financial
resources between the Union and the States (Art.280).
Under the situation of emergencies, these financial relations also undergo changes according
to the situation and the President can modify the constitutional distribution of revenues
between the Centre and the States.
5.6 PROVISION FOR WEAKER SECTIONS
Weaker sections of society such as scheduled castes, scheduled tribes, women, disabled,
children, elderly, etc. need special provisions and measures by the government to pull them
out of their disadvantaged position. In general, members of such groups suffer many socio-
economic difficulties such as inadequate access to healthcare, nutrition, educational facility,
inaccessibility to government-sponsored schemes and measures. Therefore, the government
of the day has to ensure that the fruits of development reach these people as well through
special provisions and schemes tailored especially for their benefit. Vulnerable sections also
include people suffering from certain diseases notably HIV/AIDS, cancer, and also sexual
minorities.
Special provision for weaker sections of the society
The government provides various schemes for the weaker or vulnerable sections of society to
improve the condition of their lives by offering them educational facilities, employment
opportunities, livelihoods, affordable healthcare access and other necessary amenities. Some
of them, focus on economic empowerment, are described below.
Self-Employment Scheme for Rehabilitation of Manual Scavengers (SRMS)
SRMS was started in 2007 with an objective to rehabilitate the remaining manual
scavengers and their dependents in alternate occupations.
Features include one-time cash assistance, training with a stipend and concessional
loans with a subsidy for engaging in alternate occupation.
National Scheduled Castes Finance & Development Corporation (NSFDC)
This scheme has an objective to “fight poverty through entrepreneurship”.
Incorporated in 1989, NSFDC operates under the Ministry of Social Justice and
Empowerment to finance, facilitate and mobilise funds for the economic
empowerment of people belonging to the SC category and living below double the
poverty line.
It finances income generation schemes for the target audience.
Eligibility criteria for this scheme: SC community + family income below double the
poverty line (DPL – less than Rs.98000 for rural and less than Rs.120000 for urban
candidates).
National SafaiKaramcharis Finance & Development Corporation (NSKFDC)
Established in 1997 and operating under the Ministry of Social Justice and
Empowerment, NSKFDC works as an apex organisation for the all-around socio-
economic upliftment of the SafaiKaramcharis, Scavengers and their dependents all
over India, through various loan and non-loan based schemes.
The scheme promotes economic development activities of the safaikaramcharis.
It also promotes self-employment ventures for them.
The scheme also helps safaikaramcharis in income generating schemes by way of
loans, subsidies, advances, or grants.
The scheme extends loans to students from the community for pursuing professional
or technical education.
It also engages in promoting training, quality control, technology up-gradation, and
common facility centres for carrying out sanitation works.
It helps in upskilling of personnel from the community in technical and
entrepreneurial skills.
The scheme also assists self-employed members of the community in procuring raw
materials or other outputs or in marketing finished goods and services in units set up
by them.
Assistance to Scheduled Castes Development Corporations (SCDCs)
The chief objectives of the SCDCs are identification of eligible SC families and encouraging
them to take up economic development schemes, sponsoring the schemes to financial
institutions for credit support, offering financial assistance in the form of the margin money
at a low rate of interest, providing subsidy out of the funds made available to the States under
the Scheme of Special Central Assistance to Special Component Plan of the States to reduce
the repayment liability and giving the necessary link-up with other poverty alleviation
programmes.
Scheme of Development of Primitive Tribal Groups
This scheme is for family-oriented income-generating schemes in the sectors of
agriculture, minor irrigation, horticulture, animal husbandry, soil conservation,
education, forests, fisheries, cooperatives, village and small scale industries, and for
minimum needs programme.
Primitive Tribal Groups (PTGs) were identified based on certain criteria like the pre-
agricultural level of technology, literacy level, and declining or stagnant populations.
The scheme includes infrastructure development, housing, land development, health,
education, cattle and agriculture development, insurance, social security, etc.
Rajiv Gandhi Scheme for Empowerment of Adolescent Girls (RGSEAG)
This offers assistance to adolescent girls in the following ways:
1. Nutrition provision
2. IFA (iron & folic acid) supplements
3. Health check-up and referral services
4. Nutrition and health education (NHE)
5. Life skill education
6. Accessing public services
7. Guidance on family welfare, ARSH (Adolescent Reproductive and Sexual Health
Programme), home management and child care practices
8. Vocational training for girls 16 and above under the National Skill Development
Programme
STEP (Support to Training and Employment Programme for Women)
Launched in 1986-87 as a central scheme, STEP provides skills that give employability to
women and to provide competencies and skills that enable women to become
self-employed/entrepreneurs.
Stree Shakti PuraskaarYojna
Instituted in 1991, this scheme awards women achievers on the occasion of the International
Women’s Day (8th March) every year.
Objectives of this scheme are as under:
1. To strengthen the economic development process of women in rural areas and create a
conducive atmosphere for social change.
2. To form one lakh Self Help Women Groups based on thrift and credit principles
which inculcates self-reliance and enable women to have greater access to control
over resources.
3. Poverty alleviation by building confidence in rural women by involving them in
income-generating activities.
Kishori Shakti Yojana (KSY)
Objectives of KSY (aimed at girl children):
1. Providing literacy and numeracy skills by non-formal means of education.
2. Stimulating desire for more social exposure and knowledge and thereby improving
decision-making capabilities.
3. Improving the nutritional, health and development status of adolescent girls.
4. Promoting awareness on health, hygiene, family care and nutrition.
5. Making available more opportunities for life-learning skills, training and equipping
adolescent girls to improve home-based and vocational skills.
6. Improve understanding of the social environment and help become productive
members of society.
National Family Benefit Scheme (NFBS)
This is a 100% centrally-sponsored scheme and is a part of the National Social Assistance
Programme (NSAP). Under this scheme, a lump sum of Rs.10000 is given to households
under the poverty line upon the death of the primary breadwinner due to natural or accidental
causes.
National Old Age Pension Scheme
Under this scheme, a person 65 years or older, will be eligible to receive Rs.75 per month if
he/she is found destitute with little or no means of subsistence by himself/herself or through
family members.
This are the some of the prominent economic empowerment schemes run by the Indian
government for weaker sections of society. This is a very relevant topic for UPSC as it comes
under social issues, polity, economy, and indeed, is a multidisciplinary subject.
5.7 EMERGENCIES – AMENDMENTS
EMERGENCIES
The Emergency provisions for India are mentioned in the Part XVIII of the constitution from
Articles 352 to 360. Reason For Emergency Provisions in India: These Emergency provisions
are included in the constitution to preserve the sovereignty, Unity, Integrity & Security of the
country. There are 3 emergencies mentioned in the constitution.
Types of Emergencies in India:
1.National Emergency
2.State Emergency
3.Financial Emergency
1.National Emergency in India:
According to Article 352, President can declare national emergency on the grounds of war,
external aggression or armed rebellion. The president can declare emergency even before the
occurence of the threat if he is satisfied that there is an imminent danger. When the
emergency is declared on the ground of war or external aggression it is called 'External
Emergency'. If the emergency is declared on the ground of armed rebellion it is called
'Internal Emergency' .In 1975, National Emergency was declared on the ground of Internal
Disturbances. The word 'Armed Rebellion' replaced the word 'Internal Disturbances' by the
44th Constitutional Amendment Act, 1978.
The Proclamation of Emergency by the president on the written recommendation of the
cabinet should be approved by the both houses of the parliament with special majority within
1 month. If approved the emergency continues for 6 months and can be extended for an
indefinite period by the parliament approval for every 6 months. To revoke the national
emergency, a resolution with a simple majority should be passed by the Loksabha.
How many times National Emergency Declared in India?
The first National Emergency was declared in October 1962 on the ground of Chinese
aggression on the North East Frontier Agency.
The second National Emergency was proclaimed due to the Pakistan attack in 1971.
Both 1 & 2 are external emergencies.
Third National Emergency was announced in June 1975 while the second national
emergency was in continuation. Third National Emergency was an Internal
Emergency on the ground of Internal Disturbances.
2.State Emergency in India:
Under Article 355, duty is imposed on the centre to ensure that government of every state
was carried in accordance with the provisions of the constitution. Accordingly, if there is
failure of constitutional machinery in a state, centre can take over the state government under
Article 356.This is known as State Emergency/ President's Rule. State Emergency can be
declared on two grounds:
Constitutional Machinery breakdown
Non-compliance with centre's directions The State Emergency proclamation should
be approved by the both houses of the parliament with simple majority within 2
months.
If approved the emergency continues for 6 months and can be extended for a maximum
period of 3 years by the parliament approval for every 6 months. The State emergency can be
revoked by the president on his own without any parliament approval.
How many times State Emergency Declared in India?
Since the adoption of the constitution, the state emergency was declared more than 100 times.
Article 356 has been the most controversial and criticized provision of the
constitution .President's Rule was first imposed in Punjab in 1951.
3.Financial Emergency in India:
Under Article 360, President can proclaim Financial Emergency if he is satisfied that there is
a situation in which financial stability or financial credibility of the Nation is threatened. The
Financial Emergency proclamation should be approved by the both houses of the parliament
with simple majority within 2 months. If approved the emergency continues for an indefinite
period. Without any parliament approval the President can revoke the financial emergency at
any time.
How many times Financial Emergency Declared in India?
No financial Emergency was declared till now though there was a Financial Crisis in 1991.
Articles of Emergency in Indian Constitution:
352 -Proclamation of Emergency
353 -Effect of Proclamation of Emergency
354 -Application of provisions relating to revenue distribution while a proclamation
of emergency is in operation
355 -Duty of the Union to protect states against external aggression and internal
disturbance
356 -Provision in case of failure of constitutional machinery in states
357 -Exercise of legislative powers under Article 356
358 -Suspension of Article 19 during emergencies.
359 -Suspension of enforcement of part III during emergency.
360- Provisions of Financial Emergency
AMENDMENTS
Article 368 of the Indian Constitution mentions two types of amendments to the Indian
Constitution. One type of amendment is by a special majority of the Parliament (Lok Sabha
&Rajya Sabha) and the second type of the amendment is the by a special majority of the
Parliament with the ratification by half of the total states.
Amendments of the Indian Constitution – What is Article 368?
To define constitutional amendment process, Article 368 of Part XX of Indian Constitution
provides for two types of amendments.
1. By a special majority of Parliament
2. by a special majority of the Parliament with the ratification by half of the total states
But, some other articles provide for the amendment of certain provisions of the Constitution
by a simple majority of Parliament, that is, a majority of the members of each House present
and voting (similar to the ordinary legislative process). Notably, these amendments are not
deemed to be amendments of the Constitution for the purposes of Article 368.
Any of these amendments follow a certain procedure. Hence, this article will talk in detail
about the types of amendments in the Indian Constitution, the Constitutional Amendment
Process and the scope of amendability.
Types of Amendments in Indian Constitution
The list of types of amendments can be found below. There are three ways in which the
Constitution can be amended:
1. Amendment by simple majority of the Parliament
2. Amendment by special majority of the Parliament
3. Amendment by special majority of the Parliament and the ratification of at least half
of the state legislatures.
A brief description of the above types of amendments of the Indian Constitution has been laid
down below.
1. By Simple Majority of Parliament
A number of provisions in the Constitution can be amended by a simple majority of the two
houses of Parliament outside the scope of Article 368. These provisions include:
Admission or establishment of new states.
Formation of new states and alteration of areas, boundaries or names of existing
states.
Abolition or creation of legislative councils in states.
Second Schedule-emoluments,
Allowances, privileges and so on of the president, the governors, the Speakers,
judges, etc.
Quorum in Parliament.
Salaries and allowances of the members of Parliament.
Rules of procedure in Parliament.
Privileges of the Parliament, its members and its committees.
Use of the English language in Parliament.
Number of puisne judges in the Supreme Court.
Conferment of more jurisdiction on the Supreme Court.
Conferment of more jurisdiction on the Supreme Court.
Citizenship-acquisition and termination.
Elections to Parliament and state legislatures.
Delimitation of constituencies.
Union territories
Fifth Schedule-administration of scheduled areas and scheduled tribes.
Sixth Schedule-administration of tribal areas.
2. By Special Majority of Parliament
The majority of the provisions in the Constitution need to be amended by a special
majority of the Parliament, that is, a majority (that is, more than 50 percent) of the
total membership of each House and a majority of two-thirds of the members of each
House present and voting. The expression ‘total membership’ means the total number
of members comprising the House irrespective of the fact whether there are vacancies
or absentees.
The special majority is required only for voting at the third reading stage of the bill
but by way of abundant caution, the requirement for the special majority has been
provided for in the rules of the Houses in respect of all the effective stages of the bill.
The provisions which can be amended by this way include: (i) Fundamental Rights;
(ii) Directive Principles of State Policy; and (iii) All other provisions which are not
covered by the first and third categories.
3. By Special Majority of Parliament and Consent of States
Those provisions of the Constitution which are related to the federal structure of the polity
can be amended by a special majority of the Parliament and also with the consent of half of
the state legislatures by a simple majority. If one or some or all the remaining states take no
action on the bill, it does not matter; the moment half of the states give their consent, the
formality is completed. There is no time limit within which the states should give their
consent to the bill. The following provisions can be amended in this way:
Election of the President and its manner.
Extent of the executive power of the Union and the states.
Supreme Court and high courts.
Distribution of legislative powers between
the Union and the states.
Any of the lists in the Seventh Schedule.
Representation of states in Parliament.
Power of Parliament to amend the Constitution and its procedure (Article 368 itself).
Types of Amendments – Constitutional Amendment Process
The procedure for the amendment of the Constitution as laid down in Article 368 is as
follows:
An amendment of the Constitution can be initiated only by the introduction of a bill
for the purpose in either House of Parliament (Lok Sabha & Rajya Sabha) and not in
the state legislatures.
The bill can be introduced either by a minister or by a private member and does not
require prior permission of the president.
The bill must be passed in each House by a special majority, that is, a majority (that
is, more than 50 per cent) of the total membership of the House and a majority of two-
thirds of the members of the House present and voting.
Each House must pass the bill separately.
In case of a disagreement between the two Houses, there is no provision for holding a
joint sitting of the two Houses for the purpose of deliberation and passage of the bill.
If the bill seeks to amend the federal provisions of the Constitution, it must also be
ratified by the legislatures of half of the states by a simple majority, that is, a majority
of the members of the House present and voting.
After duly passed by both the Houses of Parliament and ratified by the state
legislatures, where necessary, the bill is presented to the president for assent.
The president must give his assent to the bill. He can neither withhold his assent to the
bill nor return the bill for reconsideration of the Parliament
After the president’s assent, the bill becomes an Act (i.e., a constitutional amendment
act) and the Constitution stands amended in accordance with the terms of the Act.
Scope of Amendability in Indian Constitution
The present position is that the Parliament under Article 368 can amend any part of the
Constitution including the Fundamental Rights but without affecting the ‘basic structure’ of
the Constitution. However, the Supreme Court is yet to define or clarify as to what constitutes
the ‘basic structure’ of the Constitution.
From the various judgements, the following have emerged as ‘basic features’ of the
Constitution:
1. Supremacy of the Constitution
2. Welfare state (socio-economic justice).
3. Principle of equality
4. Sovereign, democratic and republican nature of the Indian polity.
5. Judicial review
6. Free and fair elections
7. The secular character of the Constitution.
8. Freedom and dignity of the individual
9. Independence of Judiciary
10. Separation of powers between the legislature, the executive and the judiciary.
11. Parliamentary system
12. Limited power of Parliament to amend the Constitution
13. Federal character of the Constitution
14. Rule of law
15. Effective access to justice
16. Unity and integrity of the nation
17. Harmony and balance between Fundamental Rights and Directive Principles
18. Reasonableness.
List of Major Amendments of the Indian Constitution
Important amendments brought in the Indian Constitution are mentioned below:
First Amendment Act, 1951
The state was empowered to make special provisions for the advancement of socially
and backward classes and the Ninth Schedule was added
Fourth Amendment Act, 1955 included some more Acts in the Ninth Schedule
17th Amendment Act, 1964 included 44 more Acts in the Ninth Schedule
29th Amendment Act, 1972 included two Kerala Acts on land reforms in the Ninth
Schedule
34th Amendment Act, 1974 included twenty more land tenure and land reforms acts
of various states in the Ninth Schedule
Three more grounds of restrictions on Article 19 (1) [Freedom of speech and expression]
were added:
Public order
Friendly relations with foreign states, and
Incitement to an offense
Introduced the validity of the state’s move to nationalize any business or trade and the same
to not be invalid on the grounds of violation of the right to trade and business
Second Amendment Act, 1952
The scale of representation in the Lok Sabha was readjusted stating that 1 member can
represent even more than 7.5 lakh people.
Seventh Amendment Act, 1956
The provision of having a common High Court for two or more states was introduced
Abolition of Class A, B, C and D states – 14 States and 6 Union Territories were
formed
Introduction of Union Territories
Ninth Amendment Act, 1960
Adjustments to Indian Territory as a result of an agreement with Pakistan (Indo-Pak
Agreement 1958):
Cession of Indian territory of Berubari Union (West Bengal) to Pakistan
Tenth Amendment Act, 1961
Dadra, Nagar, and Haveli incorporated in the Union of Indian as a Union Territory
12th Amendment Act, 1962
Goa, Daman and Diu incorporated in the Indian Union as a Union Territory
13th Amendment Act, 1962
Nagaland was formed with special status under Article 371A
14th Amendment Act, 1962
Pondicherry incorporated into the Indian Union
Union Territories of Himachal Pradesh, Manipur, Tripura, Goa, Daman and Diu, and
Puducherry were provided the legislature and council of ministers
19th Amendment Act, 1966
System of Election Tribunals was abolished and High Courts were given the power to
hear the election petitions
21st Amendment Act, 1967
Sindhi language was language into 8th Schedule of Indian Constitution
24th Amendment Act, 1971
The President’s assent to Constitutional Amendment Bill was made compulsory
25th Amendment Act, 1971
Fundamental Right to Property was curtailed
26th Amendment Act, 1971
Privy Purse and privileges of former rulers of princely states were abolished
31st Amendment Act, 1972
Lok Sabha seats were increased from 525 to 545
35th Amendment Act, 1974
The status of Sikkim as protectorate state was terminated and Sikkim was given the
status of ‘Associate State’ of India
36th Amendment Act, 1975
Sikkim was made a full-fledged state of India
40th Amendment Act, 1976
Parliament was empowered to specify from time to time the limits of the territorial
waters, the continental shelf, the exclusive economic zone (EEZ) and the maritime
zones of India.
42nd Amendment Act, 1976
Since the 42nd Amendment Act is the most comprehensive amendment of the Indian
Constitution, called the ‘Mini-Constitution,’ candidates can read about it in detail in
the linked article.
44th Amendment Act, 1978
It is also one of the important amendments in the Indian Constitution, enacted by the
Janata Government. Candidates can read about the 44th Amendment Act in detail in
the linked article.
52nd Amendment Act, 1985
A new tenth Schedule was added providing for the anti-defection laws.Candidates can
read in detail about the Tenth Schedule in the linked article.
61st Amendment Act, 1989
Voting age was decreased from 21 to 18 for both Lok Sabha and Legislative
Assemblies elections
65th Amendment Act, 1990
Multi-member National Commission for SC/ST was established and the office of a
special officer for SCs and STs was removed.
Candidates can read about these National Commissions from the links provided
below:
National Commission for SC
National Commission for ST
69th Amendment Act, 1991
Union Territory of Delhi was given the special status of ‘National Capital Territory of
Delhi.’
70-member legislative assembly and a 7-member council of ministers were
established Delhi
71st Amendment Act, 1992
Konkani, Manipuri and Nepali languages were included in the Eighth Schedule of the
Constitution.
Total number of official languages increased to 18
73rd Amendment Act, 1992
Panchayati Raj institutions were given constitutional status.
A new Part-IX and 11th Schedule were added in the Indian Constitution to recognize
Panchayati Raj Institutions and provisions related to them
74th Amendment Act, 1992
Urban local bodies were granted constitutional status
A new Part IX-A and 12th Schedule were added to the Indian Constitution
86th Amendment Act, 2002
Elementary Education was made a fundamental right – Free and compulsory
education to children between 6 and 14 years
A new Fundamental Duty under Article 51 A was added – “It shall be the duty of
every citizen of India who is a parent or guardian to provide opportunities for
education to his child or ward between the age of six and fourteen years”
88th Amendment Act, 2003
Provision of Service Tax was made under Article 268-A – Service tax levied by
Union and collected and appropriated by the Union and the States
92nd Amendment Act, 2003
Bodo, Dogri (Dongri), Mathilli (Maithili) and Santhali were added in the Eighth
schedule
Total official languages were increased from 18 to 22
95th Amendment Act, 2009
Extended the reservation of seats for the SCs and STs and special representation for
the Anglo-Indians in the Lok Sabha and the state legislative assemblies for a further
period of ten years i.e., upto 2020 (Article 334).
97th Amendment Act, 2011
Co-operative Societies were granted constitutional status:
Right to form cooperative societies made a fundamental right (Article 19)
A new Directive Principle of State Policy ( Article 43-B) to promote cooperative
societies
A new part IX-B was added in the constitution for cooperative societies.
100th Amendment Act, 2015
To pursue land boundary agreement 1974 between India and Bangladesh, exchange of
some enclave territories with Bangladesh mentioned
Provisions relating to the territories of four states (Assam, West Bengal, Meghalaya)
in the first schedule of the Indian Constitution, amended.
101st Amendment Act, 2016
Goods and Service Tax (GST) was introduced. Read more about GST in the linked
article.
102nd Amendment Act, 2018
Constitutional Status was granted to National Commission for Backward Classes
9NCBC)
103rd Amendment Act, 2019
A maximum of 10% Reservation for Economically Weaker Sections of citizens of
classes other than the classes mentioned in clauses (4) and (5) of Article 15, i.e.
Classes other than socially and educationally backward classes of citizens or the
Scheduled Castes and the Scheduled Tribes.
104th Amendment Act, 2020
Extended the reservation of seats for SCs and STs in the Lok Sabha and states
assemblies from Seventy years to Eighty years. Removed the reserved seats for the
Anglo-Indian community in the Lok Sabha and state assemblies.
e
5.7.1 CONSTITUTIONAL BODIES – POWERS, FUNCTIONS AND RESPONSIBILITIES
National Commission for Minority Educational Institutions (NCMEI)
Mandate: NCMEI established to protect and promote unique culture and traditions of
linguistic and religious minorities.
Powers of NCMEI
1. Determination of Minority Institution: The Supreme Court judgement in the NCEMI
vs State of West Bengal noted how the NCMEI Act provided it with power to
determine and fix minority status for institutions
2. Powers of Appeal: The 2006 amendment to the NCMEI Act enables it to function as a
court of appeal against order of competent authority regarding minority status
3. Investigative Power: The NCMEI can suo motto power to enquire into complaints of
violation of rights of minorities to establish and administer educational institutions of
their choice as guaranteed by Article 30 of the constitution
4. Promote and Preserve: The NCMEI can undertake activities to promote and preserve
minority status and character of institutions in spirit of Article 29 of constitution
5. Cancellation of Minority Status
Why Minority Status should be retained?
1. Article 30(1): Right to establish and administer educational institutions of their own
choice within confines of law.
2. Article 26(a): Religious organizations can establish institutions for charitable purposes.
MEIs providing education to minority youth can be considered such. Eg: AMU and
JMIU
3. Article 38: Mandates state to reduce inequality. MEIs can serve as instrument of same
4. Kerala Education Bill Case: SC restricts power of state in revoking minority status and
depriving minority of rights conferred by Article 30.
Arguments for doing away with Minority Status
1. Article 27: State funding of minority institutions directly contradicts Article 27 that
states that the state shall not use its proceeds for the maintenance of any particular
religion
2. Azeezbasha Case: SC argued institutions like the AMU set up by acts of
parliament and not by minority community cannot be granted minority tag
3. No reservations for other communities in these institutions raising concerns of
constitutional propriety of minority institutions
4. Article 30(1) vs Article 29(2): The denial of admission to minority institutions for
citizens of non-minority background contradicts Article 29(2) that guarantees non-
discrimination on ethnic, caste, race or language grounds.
1. Out of reservations
2. No 25% RTE
3. Merit based admission process
4. Freedom of fee structure
Challenges faced by MEIs
1. No substantial Autonomy: Dependence on government for funds
2. Maladministration: Mismanagement and corruption plague private minority
institutions. The Supreme Court in the Malankara Syrian Catholic College Case stated
that the right to establish and administer minority educational institution does not
include the right to Thus, the state can enforce regulatory measures to ensure educational
character, standards and maintain excellence
1. Selling of minority seats
3. Rent seeking Behaviour due to RTE 25% reservation exemption
4. National level Exams like the NEET has taken away autonomy of MEIs in choosing
students.
Way Forward
1. More autonomy in designing and operationalizing curriculum
2. Minority status shall not be revoked as it threatens the constitutional safeguards for
minority communities, their culture and education
3. Exemption from RTE needs to be reviewed
4. A separate linguistic minority criterion to be evolved in order to ensure language
inclusive education for linguistic minorities
5. Ambiguities and gaps in management shall be bridged
Election Commission of India (ECI)
ECI is vested with the power of superintendence, direction and control for the
conduct of elections to Parliament and State Legislatures, elections to offices of President and
vice president. It is an independent constitutional body (deriving its powers from Article
324) constituted of a Chief Election Commissioner and other commissioners.
The Chief Election Commissioner is appointed by the President and holds security
of tenure. His stature is equivalent to that of a SC judge. However, the other two
commissioners can be removed by the president on recommendation of the CEC. Hence, they
do not hold security of tenure.
Advisory or Quasi-Judicial Powers:
Pre-Electoral Prohibition: If a candidate has failed to lodge an account of his election
expenses within the time and in the manner set by law, the ECI can prohibit his candidature
Post-Electoral Disqualification: ECI has advisory jurisdiction regarding matters of
ineligibility for sitting MPs and MLAs. The SC and HC also approach the ECI for its
recommendations in cases involving persons found guilty of dishonest practices in election.
The judgement of the commission shall be binding on the President
Settlement of Disputes: Regarding recognition of parties and allotment of symbols
Territorial Demarcation: Decide territorial areas of electoral constituencies throughout the
country on the basis of Delimitation Commission Act of Parliament
Preparation of Electoral Rolls: Periodically amend electoral rolls after registration of newly
qualified voters and exclusion of voters who passed away
Schedule of Election: ECI decides date of elections and imposes a model code of conduct in
constituencies where election takes place
Recognition to Political parties and Allot symbols
Functions of the ECI
Free and Fair Elections: ECI holds the superintendence, control and direction to
conduct elections for MPs, MLAs, offices of President and Vice-President. Hence it is
given the constitutional authority to administer elections and ensure it is expedited
within the framework of rules and regulations
Decorum of Democracy: ECI enforces the Model Code of Conduct during the period of
elections to ensure a level playing field where voters are not unfairly mobilised by
political parties
Controlling Money Power in Elections: All candidates must declare an affidavit
declaring their assets and also submit before the ECI his election expenses and it must be
within the limits set by the ECI. Each political party must submit audited financial
reports regularly
Responsibilities
Supervise, direct and control of elections
Set down rules and regulations for election
Determine constituencies and prepare electoral rolls
Allot symbols to parties and candidates
Appoint tribunals for decisions of doubts and disputes arising out of or in connection
with the election to Parliament or State Legislatures
1. For achieving its desired objectives, it necessary to ensure that regulatory institutions
remain autonomous and independent. Discuss in the light of experiences in the recent
past.
ECI delayed enforcing the Model Code of Conduct which many have pointed out
does undue favours to the ruling party at the centre.
Why EC must be independent?
Fair Elections: An independent body that is vested with superintendence and control of
elections must be impartial and neutral giving all candidates and political parties equal
opportunity to mobilise voters through fair means
Accountability: An independent regulatory institution steps up the accountability on the
incumbent government and political parties. They can no longer influence the regulatory
institution and circumvent rules. Hence they remain accountable to the people
Trust in Democratic System: Unless the system of regulation and monitoring is
independent and free from state control, the very trust of the public in the state is
jeopardised due to ensuing conflict of interest. Thu, an independent regulatory institution
augurs well for the state as it transmits an image of transparency to the general public
Union Public Service Commission (UPSC)
Article 315 to 323 of the Indian constitution provides for a permanent central
recruiting agency to central government services called the UPSC. The commission shall
consist of a chairman and 10 other members appointed by the President of India, their
number, service and terms of conditions are to be determined by President of India.
The members of UPSC are provided with security of tenure and can be removed
only as per conditions provided in the Constitution.
Functions of UPSC
Recruitment to Central Services: UPSC recruits young men and women by conducting
All India examinations and selecting meritorious students to services of Union
Disciplinary matters: Monitor disciplinary matter to those serving the states or Union
in a civil capacity, petitions or memorials relating to such matter
Advice to the president: UPSC can advise the president on any matter relating to
recruitment to civil services or posts
Assist States: In case of a request from 2 or more states, UPSC shall perform the duty of
assisting them in developing joint recruitment from service.
Powers of UPSC
Matters related with the appointment of the civil services of the government
Evaluation of standard and efficiencies of the candidate for appointment, promotion or
transfer in all civil posts
Affairs associated with demand and benefits of employees
Punishing employees due to violation of discipline
National Human Rights Commission (NHRC)
A statutory body set up under Protection of Human Rights Act, 1993 to safeguard
human rights of citizens against arbitrary excesses of the state. It is an independent body that
is chaired by a retired chief justice of India and has other supreme court and high court judges
along with experts in the field of human rights.
Issues NHRC deals with
State Excesses
1. Custodial torture
2. Extra-judicial killings
3. Excesses by Army officers or Police
4. Arbitrary arrest and detention
State Inaction, law and order issues
5. Sexual Violence
6. Manual Scavenging
7. Child Labour
8. Labour rights
9. Violence and discrimination against women, children
10. Problems faced by SC/ST, disabled sections.
Powers of NHRC
Against excesses or inaction by public official: NHRC has suo-motto power in
conducting an inquiry into infringement of human rights and negligence due to
inaction by public servant
Provide for immediate compensation to the aggrieved
For the convicted individuals: NHRC has powers to visit jails or institutions under
state government where persons are detained for the purpose of treatment, reformation
or protection, inspect the living conditions and provide suggestions to state
governments to improve the same
Review existing framework for HR protection: NHRC can review existing
constitutional, legal safeguards for human rights and suggest measures for their
effective implementation. It can also study treaties and other international instruments on
human rights and make recommendations for their effective implementation
Promote awareness of Human rights: NHRC can lead the way in human rights
education by engaging NGOs and CSOs to ensure citizens are aware of their claims on
the state and of existing safeguards for protection of human rights.
NITI Aayog
NITI Aayog is a think-tank to advise the Union and state government regarding
policy matters and their associated socio-economic transformation. It aims to evolve national
development priorities, sectors and strategies with active participation at state level for
achievement of national objectives – (Spirit of Cooperative Federalism).
Composition of NITI Aayog
Prime minister as Chairman
Chief ministers of States and UTs
Administrators of UTs
Vice-Chairperson – Rank of Cabinet Minister
Other members- Economists, Entrepreneurs, Policy experts
Objectives
Cooperative federalism: Engage directly with states through support initiatives and
mechanisms on a continuous basis recognizing strong states make strong nation
Bottom-Up Approach: Formulate viable socio-economic developmental plans at grass
root levels and integrate them progressively to higher levels of government
Inclusivity: Ensure that no section is left behind in economic development and to
provide special attention to those outlier sections in society
Policy Framework: Evolve long term strategy and evaluate efficacy of current policy,
programmes and initiatives triggering mid-course corrections
Bridge between Government and Markets: Create knowledge, innovation and
entrepreneurial support system through a collaborative community of experts,
practitioners and other partners
Ways and Means to Improve NITI Aayog: Vijay Kelkar Recommendations
Allocation of Capital: As per Kelkar, giving NITI the powers for
allocating transformational capital and revenue grants to states can help increase
policy outreach
Critical participation: For NITI to be an effective participant in decision making
process, it is vital that Vice-Chairman of NITI Aayog is a permanent invitee
of Cabinet Committee on Economic Affiars
Grantsà Mitigate Development Imbalance: NITI 2.0 will require a 1-2% of GDP to
correct regional imbalances in India’s growth
1. NITI Aayog has quantitatively and qualitatively improved relationship between Centre
and states. Analyze.
2. ‘Competitive Federalism contributes to growth of cooperative federalism’. Elucidate
taking NITI Aayog as example.
Comptroller and Auditor General of India
CAG is an independent constitutional office deriving its powers from Article
148 of the Indian constitution. He is the guardian of the public purse and controls the
financial system at centre and state.
CAG holds security of tenure and can only be removed by President when a
resolution for his removal is passed in both houses of Parliament with special majority. This
ensures the independence of CAG from the executive necessary to control the executive.
Functions of the CAG: CAG performs ex-post evaluation of government expenditure and
receipt. He is thus able to enquire into the wastefulness or economy of government
expenditure and utility of government receipts. CAG hence plays a key role in the control
of executive enhancing parliamentary and public accountability of the executive.
1. Exposing corruption and ensuring financial propriety in spending
1. Vinod Rai exposed the 2G scam and loss of crores of public money due to
inefficient allocation of spectrum
2. Ensuring economy in expenditure to limit wastefulness of public money
3. Noting underutilization of devolved funds and reporting the same
1. CAG in 2013 noted the underutilization of security funds for coastal
infrastructure and patrol boats maintenance
4. Impact of usage of public money on environment and culture
1. CAG noted how there were missing monuments due to increased development
Auditing Public Accounts:
o Consolidated Fund of India
o Consolidated Fund of states and States and UTs of Delhi and Puducherry
o Contingency Fund of India
o Public Account of India
Auditing Public undertaking: He audits expenditure and receipts of Central and State
government bodies to secure an effective check on assessment, collection and proper
allocation of revenue
Propriety Audit: CAG has discretionary powers to look into the wisdom, faithfulness
and economy of the government expenditure and comment on wastefulness and
extravagance of such expenditure
o In Arvind Gupta vs Union of India, the Supreme Court held that the CAG is
empowered to look into the economy, effectiveness and efficiency of
government usage of its resources. Hence the CAG is statutorily empowered to
conduct performance audits through CAG (DPC) Act, 1971
o CAG Vinod Rai had pointed out a presumptive loss of huge amounts due to
inept allocation of 2G spectrum
Guide, Friend and Philosopher of the Public Accounts Committee of Parliament
Limitations on the Office of CAG
Not Comptroller: CAG does not perform his checks in the ex-ante stage, i.e before
appropriation of funds he need not be consulted. He therefore has no role in maintenance
of public accounts but only performs an ex-post analysis to elucidate the nature of
spending. In Britain, the executive can draw money only with the approval of CAG
o The Supreme Court in the Balaji vs Tamil Nadu case upheld the ex-post nature
of CAG’s audit powers, i.e. his duty will arise only after expenditure has
incurred
Secret Service Expenditure: Money expended under this head cannot be called into
audit by CAG. He has to accept a certificate from competent administrative authority
that the expenditure has been so incurred under his authority.
Bodies outside the purview of CAG: Panchayati Raj Institutions, Public Private
Partnerships and Societies getting government funds are outside the purview of the
CAG. Currently, large infrastructure projects are financed by PPPs which come outside
the CAG’s ambit.
Denial of Information: CAGs are denied a large quantum of information sought that is
a blotch on the transparency of governance and fund appropriation.
1. Examine whether the audit of governmental policies by the CAG is overstepping its own
jurisdiction?
CAG is an independent constitutional office that derives its powers from Article
148 of the Indian constitution. After the passing of the CAG (DPC) Act, 1971 the CAG’s
role has been confined to ex-post analysis of government expenditure. However, the
provision of performance audit has been leveraged to enlarge its role to audit of
governmental policies.
How governmental policies come within CAG’s mandate?
A governmental policy is formulated by taking into account the revenue potential
or the expenditure incurred by the government. As observed by the Supreme Court in Arvind
Gupta vs Union of India case, the CAG is vested with the authority to ensure effectiveness,
efficiency and economy of government expenditure. The audit of a governmental policy
would ensure a check on its financial feasibility and revenue maximization potential to
prevent any potential loss to state exchequer.
Arguments for CAG overstepping its jurisdiction?
Policy decisions and implementation are the exclusive prerogative for the
representative government at the Centre. The CAG thus by scrutinizing governmental
policies affects the autonomy of the government in policy implementation. This undermines
the legitimacy of the executive arm of the state that is constitutionally empowered to decide
on policy matters and carry forth its implementation.
The increased auditing powers of CAG helps enhance parliamentary control on the
executive and enhances transparency and accountability of governance in the public domain.
However, the CAG must limit its transgressions to such a manner that it does not affect the
policy formulation or decision making autonomy that lies exclusively with the representative
government.
Finance Commission of India
Article 280 of the Indian constitution provides for a finance commission of
India that shall deal with sharing of finances between various levels of government –
horizontal and vertical devolution of funds (from Centre to States and between states) as per
developmental requirements. It is hence envisaged as the balancing wheel of fiscal
federalism in India.
It is constituted by the President and consists of a chairman and 4 other members for which
the parliament has specified qualifications.
Functions of the Finance Commission
1. Distribution of the net proceeds of taxes to be shared between Centre and states, and
allocation between states of respective shares of such proceeds
2. Principles that should govern the grants-in-aid to the states by Centre (out of CFI)
3. Measures to augment CFS to supplement panchayats and municipalities on basis of
recommendations made by State FC
Advisory Powers
The recommendations of the Finance Commission are advisory in nature and not
binding on the executive. It is hence up to the Union Government to implement
recommendations on granting money to states. However, since it is a constitutional quasi-
judicial body, its recommendations should not be turned down unless there exists compelling
reasons for the same.
Quasi-Judicial Powers
1. Has all powers of the civil court as per the Civil Procedure Code, 1908
2. Can summon and enforce the attendance of any witness or ask any person to deliver
information or produce a document, which it deems relevant.
3. Can ask for the production of any public record or document from any court or office.
4. Shall be deemed to be a civil court for purposes of Sections 480 and 482 of the Code of
Criminal Procedure, 1898
Overlapping Jurisdiction with Planning Commission
The Planning commission was a non-statutory body designed to achieve coherence
at state level with national objectives. It had the power to allocate discretionary grants to
states and thus had overlapping jurisdiction with constitutional body Finance Commission
which had power to recommend for both statutory grants as well as discretionary grants.
However, with the scrapping of the Planning commission and the
institutionalization of NITI Aayog, the conflict of jurisdictions has now been resolved. The
Finance Commission remains the sole advisory body with regard to matters of financial
devolution between Centre and States. (can be written as rationale for replacing Planning
Commission with NITI Aayog).
Financial Autonomy of Lower Levels of Government
The finance commission has progressively increased the share of states in proceeds
of taxes. The 14th Finance Commission recommended 42% of allocation of proceeds of
shareable taxes to states.
State Finance commissions in various states are also calling for greater devolution
of funds to Urban Local bodies and Panchayats in an effort to give impetus to decentralized
developmental planning.
This paradigm shift is visible across all levels of government and constitutional and
statutory institutions that call for a bottom-up approach as opposed to a top-down approach.
14th Finance Commission
Sharing of union taxes
1. 42% sharing of divisible pool of taxes
2. No minimum guaranteed devolution to states
Local Governments
Incentivizing Good Governance: Performance grants have been allocated to ULBs and
PRIs on the basis of their performance in carrying out developmental activities and
governance measures adopted. 20% of ULB grants and 10% of PRI grants are to be devolved
on basis of performance
Performance grants are provided to address the following issues:
Making available reliable data on local bodies’ receipt and expenditure through audited
accounts
Improvement in own revenues.
Parameters of Fund Allocation
The 14th finance commission has taken away fiscal discipline as a parameter in allocation of
finances to states. This may discourage states from adopting fiscal consolidation measures
and hence implement populist and non-viable projects.
Forest cover was introduced as a key parameter in the 14th Finance Commission
recommendation for devolution. This is in line with the goal of sustainable development and
India’s national objective to raise forest cover to 33% under Green India Mission. Hence
states with large forest cover cannot divert it for developmental activities necessitating
compensation.
Criticisms
Winding up of BRGF: The Finance Commission has wound up the Backward Regions
Grant Fund which can adversely deplete financial resources of states like Bihar and
Jharkhand that depend heavily on it.
Discourages Fiscal Consolidation: Fiscal discipline accorded 0% in allocation of proceeds
of taxes. The states have thus struggled to keep pace with 3% fiscal deficit target in lieu of
persistent off-budget spending in states.
Eg: Waiver of farm loans in U.P, M.P
Inequities between States: Absence of plan funds, reduction of social sector funding and
greater devolution of proceeds to states vests the responsibility of states in planning and
implementing to make judicious use of provided financial resources. Currently there exists
wide disparity in social and capital expenditure among states
Decentralization to local tiers not explicit: Although performance grants have been
envisaged as proportion of devolved funds from states, there is no recommendation to ensure
that there is adequate flow of finances from states to local tiers in the first place. Hence, the
local levels of government continue to remain dependent on state governments.
Population Census: If the census of 2011 is taken, it might be discriminative against states
who have been successful in controlling population from 1971 levels. It would be akin to
rewarding the failure of other states in population control.
On the other hand, the current population level determines the resource demand of
a state. The most backward states in India have the highest population. Thus, the usage of
2011 population would help bridge the massive regional disparity in development.
Eg: Kerala and Tamil Nadu stands to lose as much as 8,000 crore at the expense of other
states: Large Inequity in Devolution
Way Forward
The 15th Finance commission has multiple challenges before it the foremost being
the challenge of fiscal consolidation roadmap in states. It needs to better incentivize fiscal
discipline among states.
The challenge of widening income inequality between rich and poor states must
also be tackled with appropriate horizontal devolution between states. The Centrally
Sponsored Schemes can better target their limited allocation to poor states while high income
states can be provided with a freer hand to implement social sector schemes.
National Commission for Scheduled Castes
Article 338 of the Indian constitution provides for the setting up of a National
Commission for SCs through the 65th constitutional amendment act. The Commission is
vested with the authority to enquire into constitutional safeguards for SCs and submit a report
to the President regarding the same on their working.
Functions of the Commission
Upholding Constitutional and Legal Safeguards: Monitor all matters related to
constitutional and legal safeguards for SCs and to evaluate their working
Grievance Redressal: Enquire into specific complaints with respect to deprivation of
rights and safeguards for SCs
Socio-Economic Development: Assist the states in planning development of SCs and
evaluate the current socio-economic progress of the community under Union and States
Advisory Powers: Recommend to Union and states measures that can be taken for
protection, welfare and socio-economic development of SC community
How the commission exerts control over the Executive?
The Commission places before the President a report on the working of existing
safeguards and provides recommendations or measures it has suggested to the executives to
improve the current situation with regard to SC community. The President places the report
before the parliament and a memorandum that elucidates actions taken in lieu of the
recommendations. The memorandum should also contain reasons for non-acceptance of
certain recommendations.
The Commission exercises similar control over state governments through
institutions of the governor and the state legislature.
Quasi-Judicial Powers
While investigating into any specific complaints as to violation of rights or
abridgement of safeguards, the Commission is vested with all the powers of a civil court
National Commission for Scheduled Tribes
Article 338-A of the constitution provides for the setting up of a National
Commission for STs that shall be vested with the authority to safeguard existing legal and
constitutional safeguards for ST community.
Functions of the Commission
Socio-Economic Development: The Commission assists the states in implementing Tribal
Sub-Plan (TSP) strategy that is implemented by the GoI to usher in rapid socio-economic
development of tribal people. The Commission participates and advises in planning process
for socio-economic development of STs and to evaluate the progress of their development
under Union and state
Uphold Existing Safeguards: Monitors all matters relating to constitutional and legal
safeguards for STs and evaluates their working. With regard to safeguard of Forest rights Act,
the commission is vested with the following functions:
Access to Natural Resources: Ownership rights in respect of minor forest produce,
access to mineral resources, water bodies etc.
Land Ownership: Prevent alienation of tribal people from land and to effectively
rehabilitate such people in cases where alienation has already taken place especially in
the cases where tribal people are displaced through developmental projects
Community Forestry: Elicit maximum cooperation from tribal community with regard
to forest conservation activities and sustainable use of forest resources
The commission has also been vested with the responsibility to deepen penetration of the
PESA act to ensure its full implementation.
Grievance Redressal: Empowered to enquire into specific complaints with regard to
violation of rights of any individual of SC community or abridgement of safeguards available
to them
Central Vigilance Commission
CVC is the apex body to investigate corruption in government offices and monitor
vigilance in planning, executing, reviewing and reforming vigilance work. The CVC is
a statutory body under the Central Vigilance Commission Act, 2003 consisting of a Chief
Vigilance commissioner and 2 other commissioners.
Performance of CVC
Delay in Investigation: The cases received by the commission are required to
be inquired into by appropriate agencies like the CBI. The maximum time period of
3 months has not been adhered to causing considerable delays in the eventual outcome
of the CVC’s investigation
Under staffed: CVC and vigilance offices at grass root levels are grossly under staffed
to have a significant impact on reducing corruption. It does not have the resource
capacity to deal with the complaints it receives
Poor Quality of CBI investigationsà Low Conviction Rates: The CBI’s investigation
has seen a significant drop in quality which renders charge sheets weak eventually
scuttling convictable cases. The 2G scam verdict is an illustrative example
Advisory Nature: The Commission’s advice has been widely ignored by various
ministries by its own report in 2017, significantly hindering its pursuance of anti-
corruption activities
Overlapping Jurisdiction: The CVC and CBI have been pulled back in operational
efficiency owing to overlapping jurisdiction that has also caused wastage of resource
Political Interference: The independence of the CVC has been at times compromised
by political parties. The appointment of the CVO is yet to be made transparent.
Anonymous and Pseudonymous complaints crippling efficiency of CVC
Suggestions
Transparency in Appointments: Develop scientific criteria for appointments to post of
CVO
Discourage false complaints by pecuniary punishments
Resolve overlapping jurisdictions with CBI
Enforcing Advice: The advice tendered to by CVC shall be accepted by ministries. In
cases where they are not, the ministry shall provide a justification in the open as to why
it was not accepted
Use of technology in investigations can help streamline investigation and improve
quality
Streamline resources between CVC, Anti-Corruption Bureau and the CBI to overcome
resource crunch and human resource deficiency
Central Bureau of Investigation (CBI)
CBI is the premier anti-corruption investigation agency of the central government
that derives its powers from the Delhi Special Police Establishment Act.
Issues with CBI
1. Appointment: The appointment process of CBI is clouded with executive
manipulation to select officers that serve their interest. The absence of fixed
criteria for selection compromises the process
2. Arbitrary Removal: The abrupt removal of the CBI director by the executive recently
highlights the absence of security of tenure that compromises the independence of the
CBI from political interference
3. Executive Body: The CBI as a body that merely derives its powers from DSPE Act
has reduced independence in functioning and financial autonomy due to its non-
statutory nature
4. Outside the RTI
5. CBI needs approval from the government for initiating investigation against all
categories of government servants
6. Overlapping Jurisdiction with CVC and Lok Pal
Need for Restoring Integrity of CBI
1. Premier anti-corruption agencyà need for public confidence
2. Handles high profile cases of graft and corruption
Recommendations
1. Estimates Committee of parliament has recommended that the CBI be provided
with statutory status
2. Jurisdiction with CVC and Lok Pal be streamlined
3. CBI members and directors may be provided with security of tenure
4. The appointment of CBI members can be more transparent and specialization in
corruption or graft cases can be considered
5. Santhanam Committee has recommended the amendment of Article 311 of the
constitution to expedite the judicial process in corruption that can fast track CBI’s
investigation results.
National Commission for Minorities (NCM)
Mandate
1. Evaluate Progress
2. Monitor safeguards of constitutional and legal nature and its working
3. Making recommendations for effective implementation of safeguards for protection of
interests of minorities to state and central governments
4. Grievance Redressal: Look into specific complaints of minorities and approaching
authorities
5. Socio-Economic research analysis on conditions of minorities and making suggestions
to government
Issues for NCM
No Constitutional Status: The NCM is set up by an act of parliament. Hence, it has
lesser authority and resources as compared to NC for SC and ST.
Human Resource Deficiency Pendency of cases Non-redressal of grievances
Skewed Fund Allocation: While salaries are drawn heavily, little is spent on research,
education and policy building for uplifting minorities
Centralization Tendency: State Minority Commissions are not empowered to act on
grass root level issues, monitor developmental plans and review them.
Suggestions
Provide Constitutional Status: This would increase the legal mandate of the authority
Correct Human resource deficiency
Set base line targets to avoid pendency
E-hearing mechanism to increase accessibility
Delineate and strengthen state minority commissions. Segregate cases based on extent of
hurt, grievous loss or injury.
Exercise
1. Write an essay on centre state relation.
2. Elaborate legislature relation of centre state relation.
3. Explain about administrative relation of centre state relations.
4. Write about provisions about weaker sessions.
5. Write on emergencies
6. Explain about amendments.
7. Write about different phases of centre state relations.
8. Write on special provisions for weaker sections pf the society.
9. Write on different type of emergencies.
10. How many type of amendments are there in India. Write a note on it.
11. Write on the scope of amenability of Indian Constitution.
12. Write on 1st amendment of Indian constitution.
13. Write about 7th amendment.
Chapter questions &More Essay Question Exercises.
1. What is Preamble? Is it a Part of the Constitution? Can it be used for interpretation of
the Constitution? Also explain its significance.
2. Explain the procedure of election and removal of the President of India.
3. “The Directive Principles of State Policy constitute a comprehensive political, social
and economic program for a modern democratic welfare State”. Examine.
4. Discuss in brief the various writs that can be issued by a High Court in India.
5. Explain the privileges and immunities of Parliament and its members.
6. Discuss in brief the collective responsibility of the Council of Ministers.
7. “Fundamental Duties” in the Indian Constitution.
8. Citizenship
9. Equal Protection of laws.
10. Distribution of power between Union and state govt policy borrowed from which
nation?
11. The idea of ‘Single Citizenship’ taken from which country?
12. By which legislation India and Pakistan were divided into two independent nations?
13. Currently there are how many fundamental rights are recognized by the Indian
constitution?
14. Indian constitutional rights were inspired by which historical documents?
15. Why 26 November is observed as Indian Constitution Day or Samvidhan Divas?
16. Who is empowered by the Indian Constitution to appoint the Attorney General of
India?
17. Who is the only person holding the right of appointment of Chief Justice of India?
18. By which procedure the President of India may be removed before the expiry of the
term?
19. Who appoints the Chief Election Commissioner of India?
20. According to the Indian Constitution, the Lok Sabha must meet at least
21. What is the maximum possible strength of the Legislative Assembly of a State in
India?
22. Rajya Sabha has equal powers with the Lok Sabha in
23. What type of voting is held in Vidhan Sabha to elect Members of the Rajya Sabha?
24. What does Hung Parliament mean?
25. The President has the powers to nominate two members to the Parliament belonging
to?
26. Which was the first state that was organized on the basis of language after
independence?
27. Which of the following commission was appointed by the Central Government on
Union-State relations in 1983?
28. Which of the following taxes are levied by the Union government but collected and
appropriated by the states?
29. Which of the following tax is levied and collected by the Union government but the
proceeds are distributed between the Union and states?
30. What was the primary aim of the framers of the Constitution in creating that
document?
31. To what extent does public opinion shape government? To what extent does
government (the president , Congress) shape public opinion?
32. Write an note on features of constitution
33. Explain preamble
34. Write on Indian citizenship
35. Explain about formation of the states.
36. Explain about fundamental rights.
37. Explain DPSP.
38. What do mean by Fundamental duties.
39. What is the difference between Fundamental rights and Fundamental duties?
40. What is the relation between DPSP and fundamental write about rights?
41. Explain about union government
42. Write on Union executive.
43. What is the relation between Judiciary and Legislature?
44. Write a note on state administrative executive.
45. Writ on state legislature.
46. Elaborate High Court
47. Explain about subordinate courts
48. Write an essay on centre state relation.
49. Elaborate legislature relation of centre state relation.
50. Explain about administrative relation of centre state relations.
51. Write about provisions about weaker sessions.
52. Write on emergencies
53. Explain about amendments.
54. Write about writs.
55. List out major freedoms mentioned in article 19.
56. Discuss about charactertics about constituency assembly.
57. Article21A
58. Explain the importance about 1st amendment act.
59. Briefly explain the utility of the directive principle of state policy.
60. Punchhi commission
61. THE Indian constitution is federal in form but unitary in spirit. Elucidate
62. Critically analyse the relationship between Legislature and Judiciary in India.
63. Write a note right to Equality as envisaged in the Indian Constitution.
64. Is preamble part of Constitution. Explain.
.
REFERENCE
(1) Constitution of India, Lok Sabha Secretariat
(2) Constituent Assembly Debates
(3) India Code, Ministry of Law and Justice.
(4) All India Reporter (A.I.R)- Supreme Court Judgements
(5) Making of Constitution, Lok Sabha Secretariat, 2016
(6) 50th Anniversary of The Republic of India, Select Proceedings of the Constituent
Assembly relating to the Adoption and Signing of the Constitution, Lok Sabha
Secretariat, 2000
(7) Granville Austin, The Indian Constitution—Cornerstone of a Nation, Oxford, 1966.
(8) D.D Basu, Introduction to the Constitution of India, Prentice Hall of India Pvt. Ltd.
(9) D.D Basu, Commentary on the Constitution of India, LexisNexis.
(10) M Laxmikanth, Indian Polity, McGraw Hill Education (India) Private Limited,
Fifth Edition, 2017.
(11) https://epgp.inflibnet.ac.in/Home/ViewSubject?catid=29.
(12) https://gradeup.co/constituent-assembly-and-sources-of-the-constitution-i
(13) https://byjus.com/free-ias-prep/types-of-writs-in-india/
(14) Article 35-A in the Constitution (Application to Jammu and Kashmir) Order, 1954. This was
issued by the President of India under powers conferred on him by Article 370 of the Constitution.
(15) Annual Report 2015-16, Ministry of Home Affairs, Government of India,p. 262.
(16) This provision refers to migration after 1 March, 1947 but before 26 January, 1950. The question
of citizenship of persons who migrated after 26 January, 1950, has to be decided under the provisions
of the Citizenship Act, 1955.
(17). The 8th Schedule of the Constitution recognises presently 22 (originally 14) languages.
(18). This will not apply if he is a student abroad, or is in the service of a government in India or an
international organisation of which India is a member, or has registered annually at an Indian
consulate his intention to retain his Indian citizenship.
(19). By virtue of Article 371-D inserted by the 32nd Constitutional Amendment Act, 1973.
(20). Constituent Assembly Debates, volume 7, P, 43.
(21).https://www.clearias.com/fundamental-rights/.
(22). Added by the 18th Constitutional Amendment Act of 1966.
(23). Babulalvs .State of Bombay (1960).
(24) . This information is downloaded from the website of Ministry of Law and
Justice (Legislative Department), Government of India.
(25). https://cracku.in/blog/emergency-provisions-in-indian-constitution-notes-pdf/
(26).https://byjus.com/free-ias-prep/types-of-amendment/
(27).http://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/S000029PE/P001420/M013528/ET/
1498194393Centre-StateRelationsinIndia.Ankita.pdf.
(28).The 20th Constitutional Amendment Act of 1966 added a new Article 233-A which
retrospectively validated the appointment of certain district judges as well as the judgements delivered
by them.
(29). In practice, the State Public Service Commission conducts a competitive examination for
recruitment to the judicial service of the state.
(30). Law Commission of India, Report No.222 entitled as “Need for Justice dispensation through
ADR etc.,” April 2009, pp.22-23.
(31). Second Administrative Reforms Commission, Government of India, Report on Organisational
Structure of Government of India, 2009, pp. 136-137 and 140.
(32). Annual Report 2015-16, Ministry of Law and Justice, Government of India, p.85.
(33). Press Information Bureau, Government of India, September 29, 2009.
