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LL.B. Semester - II
109 - CONSTITUTIONAL LAW- II
Source : Internet. Dedicated to students of the subject.

22-Apr-2016. Version-1.5. Compiled by ketan.bhatt@iitbombay.org for his


personal use.
Gujarat University Syllabus is in BOLD text. References to questions listed
herein below, are to such questions which were asked in Gujarat University
examinations.
CONTENTS

Module-1) Executive, Legislature and Judiciary :


Module-2) Amendment of the Constitution :
Module-3) Emergency provisions :
Module-4) Miscellaneous :
SYLLABUS :

Module-1) Executive, Legislature and Judiciary :


1..1)Union Executive : President, Prime Minister, their
qualifications, powers and duties, position of the President vis-vis Prime Minister

1..2)State Executive : Governor, Chief Minister, Powers, Council of


Ministers

1..3)Union Legislature : Composition of Parliament, Lok Sabha,


Rajya Sabha, Qualifications and Disqualifications of the Member
of Parliament, Schedule X, Speaker and Dy. Speaker of both
Houses and their powers, Procedure for passing Ordinary Bill &
Money Bill, Joint Session of House

1..4)State Legislature : Composition of House, Qualifications and


disqualifications of MLAs, Legislative Procedure of State
Legislature

1..5)Union Judiciary : Supreme Court Judges & Chief Justice


Procedure for appointment and removal, qualifications, Powers
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and Jurisdiction of SC : Original, Appellate, Advisory, Article
141, 142

1..6)State Judiciary: Appointment, Transfer and removal


procedure of High Court Judges and Chief Justice of High Court,
Powers and Jurisdiction of High Courts, Writs: Article 226 and
227, Distinction between them
Module-1 QUESTIONS : <sort questions according to sequence in syllabus>

Discuss in detail the powers of the president of india.


Q : 2012, 4, 5 : Explain : procedure for impeachment of the president.
Q : 2013 : Short note : Constitutional position of president of india.
Q : 2015 : Discuss the position of the prime minister -vs- president
under the Art-74 and 78 of indian constitution

Q : 2014 : Discuss the position of president and governor under the indian
constitution.

Q : 2012 : Constitutional position of governor and chief minister and


constitutional relations between them.

Q : 2012, 4 : Explain : Special procedure for passing money-bill in the


parliament
Q : 2013 : Explain : Money bill.

Q : 2014 : Explain : Powers, privileges and immunities of parliament


members.

Q : 2015 : Explain : qualifications and disqualification of members of


parliament and critical evaluation.

------> Q : Discuss : State legislature.


Q : 2012, 4 : Discuss in detail the powers of the supreme court. Is supreme
court bound by its own decisions?
Q : 2013, 5 : Discuss jurisdiction of supreme court.

Q : 2012 : Explain : procedure about appointment, removal and


qualifications of chief justice of india.

Q : Explain the writ jurisdiction of a High Court..


Q : 2013 : Discuss : Art-226

Q : 2012 : Explain the difference between Art-32 and 226.

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Q : 2014 : Discuss the procedure about appointment, removal and
qualifications of chief justice of high court.
Q : 2015 : Explain appointment, transfer and removal of high court
judge.

Q : 2012 : Explain : Writ of Habeas Corpus.


Q : 2014 : Explain : Writ of Prohibition.
Q : 2014 : Explain : Writ of Certiorari.
Go To CONTENTS.
Module-1 ANSWERS :
Q : 2012, 4, 5 : Discuss in detail the powers of the president of india.
Ans : Part V of the Constitution, under Chapter I, lists out the
qualification, election and impeachment of the President of India. The
President of India is the head of state of the Republic of India. The
President is the formal head of the executive of India and is also the
commander-in-chief of the Indian Armed Forces. Although Article 53 of
the Constitution of India states that the President can exercise his or
her powers directly or by subordinate authority, with few exceptions,
all of the executive authority vested in the President are, in practice,
exercised by the Council of Ministers (CoM).
Article 52 : The President of India

There shall be a President of India.


Article 53 : Executive power of the Union

(1) The executive power of the Union shall be vested in the


President and shall be exercised by him either directly or
through officers subordinate to him in accordance with this
Constitution.

(2) Without prejudice to the generality of the foregoing


provision, the supreme command of the Defence Forces of
the Union Shall be vested in the President and the exercise
thereof shall be regulated by law.

(3) Nothing in this article shall

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(a) be deemed to transfer to the President any functions


conferred by any existing law on the Government of any
State or other authority; or

(b) prevent Parliament from conferring by law functions


on authorities other than the President.

It is not true that the President of India has got only limited
powers. Indian President is not merely a ceremonial head unlike
many other countries. Though Indian President often acts based on
the advice of Council of Ministers, he has many discretionary
powers where he takes decisions based on his own convictions.
President of India enjoys several veto powers over bills present in
the parliament, and can even summon the PM to give him
explanations on certain matters.
Almost all important decisions regarding the country are taken in
the name of Indian President, though these will be on the advice of
Council of Ministers. President of India is vested with Legislative,
Executive and Judicial powers.
Powers of Indian President : Powers of Indian President can be
broadly classified as under :

1. Executive or Appointment powers :

The President of India is the head of the executive of the


Union Government. Therefore, all executive powers are
vested in the hands of the President. He can exercise
these powers either directly or through the subordinate
officers.

According to the Constitution of India, all executive action


is also taken in his name. The President appoints the
Governors of the States, the Judges of the Supreme Court
and High Courts of the States. The Prime Minister of India
is appointed by the President. The President also appoints
other Ministers in consultation with the Prime Minister.

The Constitution of India empowers the President to


appoint the important officers of the Union Government

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including the Attorney-General for India, the Comptroller
and Auditor-General of India, the Chairman of the Finance
Commission, the Election Commissioners etc.

The President has been empowered to set up a


Commission for the settlement of disputes relating to the
supply of water between two or more States.

Moreover, the Constitution has authorized the President to


establish an Inter-State Council to enquire into disputes
that may arise between, the States as well as to discuss
the matters of the common interests between the Union
and the States.

The President alone can remove the Council of Ministers,


the Governors of States and the Attorney-General for
India.

2. Legislative Powers : The President of India is an integral


part of Indian Parliament. Parliament consists of the
President and two Housesthe House of the people (Lok
Sabha) and the Council of States (Rajya Sabha).

The President has the power of to summon and prorogue


both the House of Parliament. He can also dissolve the
House of the People before the expiry of its term.

The Constitution of India empowers the President to


deliver an address to the Parliament at the
commencement of the first session every year. He may
also send messages to Parliament.

The President nominates two members to the Lok Sabha


from the Anglo-Indian Community

The President nominates twelve members to the Rajya


Sabha from among the persons who have acquired special
knowledge in art, science, literature and social service.

In India, a public bill cannot become an act without the


assent of the President. A bill passed by the Union
Parliament is sent to the President for his assent. The
President may give his assent to the bill or may withhold
his assent from the bill or he may return the bill to
Parliament for its reconsideration. If the bill is again

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passed by both Houses of Parliament, the President shall
have to give his assent.

When the Parliament is not in session, the President may


issue an ordinance. It has the same force as the law or
Parliament. But it must be placed before the Parliament
when it again assembles.

The President can call a joint session of both Houses of


Parliament to resolve a constitutional deadlock over a
public bill.

3. Financial Powers: 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 also be pointed out that the proposal for
taxation and expenditure cannot be made without the
approval of the President.

4. Judicial Powers / Pardoning Powers : The President of India


grants, pardons, reprieves or remissions of punishment to
any person who has been convicted by a Court of Law.

5. Emergency Powers: The President of India exercises extraordinary powers in times of emergency. The three kind of
Emergency situations are:

Proclamation of National Emergency by the President of


India: 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. The right to
freedom of speech and expression, freedom to form
association, freedom to practice and profession, etc.,

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embodied in Article 19 shall remain suspended during
emergency.

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.

Proclamation of Financial Emergency by the President:


The President may also issue a Proclamation of Financial
Emergency 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.

Thus the President of India has been given wide and far-reaching
powers which he enjoys both during normal and emergency times.
But after the passing of the Constitution Forty-Second (1976) and
Forty-Fourth (1978) Amendment Acts, the President of our Republic
has become a Constitutional figurehead and nothing beyond that.
The powers really reside in the Ministry and the Parliament and not
in the President as such.
The Supreme Court through various decisions has upheld the
position that the President is a constitutional head and as such he is
as much bound by the advice of his Ministers during emergency as
during normal times.
It does not, however, mean that the President of India is a
magnificent cipher or a mere rubber stamp. Unlike the British
Monarchy which is hereditary, the President of our Republic is an
elected Head of the State. There are some grey areas where the
President may still have to use his own judgment and wisdom.
These are:

Appointment of the Prime Minister,

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Dismissal of the Union Ministry,

Dissolution of the Lok Sabha, and,

Seeking information on all matters of administration and


legislation from the Prime Minister etc.

In some such situations, the role of our President may become


most crucial and decisive. However, the President has to be free
from all political affiliations. He is expected to act with complete
constitutional rectitude and impartiality. The nation is expected to
be benefitted by his wise leadership and constructive role.
In short, the President of India is the symbol of national unity,
magnet of loyalty and apparatus of ceremony.
Go To Module-1 QUESTIONS.
Q : 2012, 4, 5 : Explain : procedure for impeachment of the president.
Ans :
Art-61 :

(1) When a President is to be impeached for violation of the


Constitution, the charge shall be preferred by either House of
Parliament.

(2) No such charge shall be preferred unless

(a) the proposal to prefer such charge is contained in a


resolution which has been moved after at least fourteen
days' notice in writing signed by not less than one-fourth
of the total number of members of the House has been
given of their intention to move the resolution, and

(b) such resolution has been passed by a majority of not


less than two-thirds of the total membership of the
House.

(3) When a charge has been so preferred by either House of


Parliament, the other House shall investigate the charge or
cause the charge to be investigated and the President shall
have the right to appear and to be represented at such
investigation.

(4) If as a result of the investigation a resolution is passed by


a majority of not less than two-thirds of the total
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membership of the House by which the charge was
investigated or caused to be investigated, declaring that the
charge preferred against the President has been sustained,
such resolution shall have the effect of removing the
President from his office as from the date on which the
resolution is so passed.
Impeachment is the first of two stages in a specific process for a
legislative body to remove a Government official without that
official's agreement. The second stage is conviction. An official who
is impeached faces a second legislative vote (whether by the same
body or another), which determines conviction, or failure to convict,
on the charges embodied by the impeachment. Most Constitutions
require a supermajority to impeach and to convict.
Procedure of Impeachment of President of India : Under Article 61,
the President of India can be removed from the office by a process
of impeachment for the violation of the Constitution. The
impeachment is to be initiated by either House of Parliament. The
charges are to be framed in the form of resolution, signed at least
by 1/4 th members of the total members of the House. The
President has to be given a notice of 14 days in advance. The
resolution is to be passed by 2/3 rd majority of the total members
of the House and then it is to be sent to other House for
investigation and decision. If the other House after investigation
sustains the charges and passes the identical resolution with 2/3 rd
majority of the total membership, the President ceases to hold
office from the date such resolution is passed.
Conclusion : The word 'Impeachment' is an origin of British
convention which means to remove a Government official without
any official agreement and after the impeachment, conviction has
been provided to that official's defence. In India, it is a quasijudicial procedure and President can only be impeached on the
ground of violation of the Constitution.
Go To Module-1 QUESTIONS.
Q : 2013 : Short note : Constitutional position of president of india.

Q : 2015 : Discuss the position of the prime minister -vspresident under the Art-74 and 78 of indian constitution

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Ans :
In regard to the constitutional position of the President of India the
relevant provisions are Article 53, 74, and 75.

Art. 53 vests the executive power of the Union in the


President, but he is required to exercise his powers in
accordance with the constitution.

Art. 74 provides that there shall be a Council of Ministers to


aid and advise the President in the exercise of his functions.

Art. 75(iii) Jays down that the Council of Ministers shall be


collectively responsible to the House of the People. There is
no provision in the constitution which makes the President
answerable to the legislature.

Art. 78 provides that it shall be duty of the Prime Minister to


(i) communicate all decisions of the council of ministers and
(ii) all such information concerning affairs of the Union which
information the President may call for.
Views of jurists and political leaders :

There was no doubt in the minds of the framers of the


Constitution that they were setting up a parliamentary form
of Government after the model of Great Britain. Dr Ambedkar
categorically stated in the Constituent Assembly "the
President is merely a nominal figure head", and that "he has
no discrimination and no powers of administration at all". He
represents the nation, but does not rule the nation.

Similar observations were made by Dr Rajendra Prasad in the


Constituent Assembly. According to him the position of the
Indian President was that of constitutional head. He hoped
that a convention will be established in the country that the
President will always act upon the advice of his ministers.

The view of the late M C Setalvad, former Attorney-General


of India, was that the position of the President of India was
like the King of England and the Governor General in a
Dominion. He could advise the ministers and influence their
decisions but otherwise he was to act according to their
advice.

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Prime Minister Jawaharlal Nehru explained the position of the


President in these words "We have not given our President
any real power but we have made his position one of great
authority and dignity."
A question may be asked that if the framers of the constitution
were so definite in their minds regarding the constitutional status of
the President, then why did they not categorically mention in any
provision in the constitution that the President would be bound by
ministerial advice?

The Drafting Committee did examine this question but


dropped the idea of putting any such provision as it thought
it better to leave the matter to conventions.
Evolution of conventions :

Within a year of the Constitution coming into operation,


President Rajendra Prasad in 1951 in a note to Prime Minister
Nehru expressed the desire to act solely on his own
judgments, independently of the Council of Ministers in the
matter of giving assent to the Bills and sending messages to
Parliament. This view was based on a literal reading of
Articles 111 and 86, ignoring the underlying conventions.
----- Nehru consulted Attorney General Setalvad and a
member of the Drafting committee of the Constituent
Assembly, and they both expressed the view that the
President had no discretion in this matter and that it would
be constitutionally improper for him not to seek, or not to be
guided by the advice of his Ministers, as Art. 74 was all
pervasive in character and the Council of Ministers was to aid
and advice the President in all his functions. The matter was
not, however, precipitated as President Prasad relented and
did not force his views.

The controversy started again in 1960. On November 28,


1960 while laying the foundation stone of the Indian Law
Institute building, President Prasad in his speech said that it
was generally believed that like the Sovereign of Great
Britain, the President of India was also a constitutional head
and had to act according to the advice of his Council of
Ministers. He also posed the wider question as to how far the
conventions of the unwritten British constitution could be
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invoked and incorporated into the written Indian Constitution
by interpretation. This speech raised a spate of speculation in
the country or the question of President's relationship with
his Council of Ministers. ----- The matter was, however, set at
rest by Nehru declaring at a Press Conference on December
15, 1960, that the President's remarks were only 'casual' and
that politically and constitutionally, the President's position
conformed to that of the British crown and that the President
was a constitutional head and had always acted as such.

For the third time a similar controversy was raised in 1967.


As a result of the Fourth General Elections held in March
1967, the Congress monopoly of power in the States was
broken as in some State non-Congress governments took
office. When the question of electing a new President arose in
May, 1967 the parties opposed to the Congress decided to
set-up their candidate as against the Congress candidate,
and one of the arguments that was put forth by these parties
was that the President was not merely a figure-head but that
he had a constructive and meaningful role to play in the
affairs of the country, especially, that he should act as a sort
of mediator between the Centre and States.
Thus, controversy on the issue kept raising its head time and again
with Zakir Husain, Sanjiva Reddi and Gyani Zail Singh trying to
assert their position and reacting sharply to the bondage of Council
of Ministers.
Resolution of the issue:

Finally, the Forty-second Amendment of the Constitution in


1976 removed all doubts about the position of the President
under the Indian Constitution. Art 74 as amended
categorically provided that "there shall be a council of
Ministers with the Prime Minister at the head to aid and
advise the President who shall is exercise of his functions, act
in accordance with such advice". Under this Amendment, the
President could not play the role of even an adviser or a
guide.

A further Amendment of Art. 74 was made by Forty-fourth


Amendment of the Constitution in 1978, The clause that the
President shall act in accordance with the advice of the
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Council of Ministers with the Prime Minister at the head was
not changed but a proviso was added to the effect that "the
President may require the Council of Ministers to reconsider
such advice, either generally or otherwise, and the President
shall act in accordance with the advice tendered after such
reconsideration."
Conclusion :

The influence of the President however, depends on his


personality, and a man of character and ability can really
exert a potent influence on the affairs of the governments.
The President can make his influence felt by his advice, help
and persuasion by using his knowledge, experience and not
by his dictating any particular course of action to his
ministers.

In the ultimate analysis, it is the Council of Ministers which


prevails and not the President.

The President's role may at best be advisory; he may act as


the guide, philosopher and friend to the Ministers, but cannot
assume to himself the role of their master - a role which is
assigned to the Prime Minister.

The intention of the makers of the Constitution was that the


President should be a centre from which a beneficent
influence should radiate over the whole administration. It was
clearly not their intention that he should be the focus of any
power.
Go To Module-1 QUESTIONS.
Q : 2014 : Discuss the position of president and governor under the indian
constitution.
Ans :
<write on position of president>
<write on position of governor>
Discuss how governor is an 'agent' of union of India :

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Normal powers and functions of Governor are as listed above.


There is however, another aspect of the Governor's position
which may be noted.

There are many occasions where in the Governor acts as the


agent of the President and has to carry his instructions,
irrespective of whatever vice his ministers tender to him. In
discharge of his such functions Governor acts as the agent of
the president and while acting so, he has to disregard advice
of his own council of ministers.

If the Governor on such occasions, doesn't act according to


the instruction of the president, the latter may remove him
or transfer him to another state. Thus, Governor's
responsibility to the president isn't only 'moral' but also a
constitutional binding.

In such situations when the Governor acts as the agent of


the president his position becomes difficult one. On one side
is the voice of the people of the state (as voiced through
Council of Ministers), and on the other side is the president
who represents the voice of the nation and whose nominee
the Governor is. This is an embarrassing position.

The Governor on such occasions need to act wisely and


tactfully.
<Discuss governor's functions during President's rule>

Go To Module-1 QUESTIONS.
Q : 2012 : Constitutional position of governor and chief minister and
constitutional relations between them.
Ans :
Intro :
India has a parliamentary form of government. 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.

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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.
GOVERNOR :
Appointment of Governor : 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:
(a)must be a citizen of India,
(b)must be at least 35 years old, and
(c)should not hold any office of profit during his/her tenure.
If a person is a member of either 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
(A) executive powers,
(B) legislative powers,
(C) financial powers,
(D) discretionary powers.
(E) Judicial Powers

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(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 is the constitutional hard of the state;
He appoints the leader of the majority party as the Chief
Minister;
He appoints the members of the council of minister on the
advice of the Chief Minister;
He appoints the Advocate General, Chairman and members of
the respective State Public Commission;
He nominates two Anglo-Indian members in the Vidhan
Sabha;
He can seek any information from the Chief Minister.
He/She appoints 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 Governors 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 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 is a part of the state legislative and can summon, adjourn
or prorogue the state legislative.
He can call for a joint sitting of both the houses.
No bill can become a law until the Governor signs it.

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He can withhold a bill and send it to the President for
consideration.
He can issue ordinances during the recess of the legislature.
He can dissolve the State Assembly before the expiry of its
term on the advice of the Chief Minister or as directed by the
President.
He causes the annual Budget to be presented in the Vidhan
Sabha.
No money bill can be introduced in the Assembly without his
prior approval.
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 Anglo-Indian Community
as a member of 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 bi-cameral legislature.
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: Every year the budget is presented by the
government in the Legislature for its approval.
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.
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.
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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.
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
Presidents Rule may be imposed, the State Council of
Ministers is removed and the State Legislature is dissolved or
put under suspension. During such emergency, the Governor
rules on behalf of the President.
(E) Judicial Powers :
The governor appoints the district judges.
He is consulted in the appointment of the judges of the High
Court by the President;
He can, pardon, remit and commute the sentence of a person
convicted by a state court.
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 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

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majority in the Legislative Assembly. The Governor can dismiss them
only when the Presidents 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 takes 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 to act as a real executive in particular
circumtances.
THE CHIEF MINISTER AND COUNCIL OF MINISTERS :
Appointment :
As we have seen earlier, the Council of Ministers with the Chief
Minister as its head functions as the real executive. You are also
aware how the Chief Minister and other members of the Council of
Ministers are appointed by the Governor. Their term of office is for
five years, but they remain in office till they enjoy the support of
the majority in the Assembly. If a person who is appointed as the
Chief Minister or a Minister, is not a member of the State
Legislature, he/she has to become member of any of the two
houses within six months of his/her appointment. The portfolios or
different ministries are allocated to the Ministers by the Governor
on the advice of the Chief Minister.
Functions of the Chief Minister and Council of Ministers : The Chief
Minister of a state, being the real executive head of the state, enjoys
vast powers and functions.
He is the working head of the state Government and as such, he
advises the Governor in matters relating to the selection of his

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ministers, change in their portfolios and their removal from his
Government.
He presides over the meetings of his council of ministers and see
to it that the principle of collective responsibility is maintained.
He may thus advise a minister to tender his resignation, or he
may advise the Governor to dismiss a minister in case he differs
from the policy of the cabinet.
He communicates to the Governor all decisions of his council of
ministers relating to the administration of the state of affairs and
proposals of legislation.
He furnishes to the Governor such information relating to the
administration of the state of affairs and proposals of legislation
as he may call for.
He places a matter for the consideration of the council of minister
where the Governor requires him to have the decision of the
Government.
He acts as the sole channel of communication between his
ministers and the Governor.
Likewise, the Chief Minister, is the sole channel of communication
between his ministers and the legislature. All bills, resolutions
etc. that are moved in the legislature must have his prior
approval. When there is much criticism of his Government in the
legislature he himself holds the floor to face the on sought of the
opposition and thereby save his Government from being backed
or defeated.
He is the leader of the majority party and as such, it is his duty
to see that discipline is maintained. For this he appoints the
whips and sees to it hat the orders of the whips are invariably
carried out.
He may tender his resignation any time and then advises the
Governor to summon such and such person for the installation of
another ministry or to dissolve the House and thereby place the
state under President Rule.
Though in theory all appointments are made by the Governor, Yet
in practice power of patronage vests with the Chief Minister. He is
consulted about the appointment of judges of the state High
Court.
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guides the framing of the policies and programmes for the State
and gives approvals of the Bills that are introduced by the
Ministers in the State Legislature;
is the sole link of communication between the Council of
Ministers and the Governor. The Chief Minister communicates the
decisions of the Council of Ministers relating to administration as
well as proposals for the legislation to the Governor; and
submits any matter on which decision has been taken by a
Minister for consideration of the Council of Ministers, if the
Governor desires him/her to do so.
No posting and transfer can take place in the state without his
approval. He is consulted in the appointment of State Advocate
General and the members of State Public Service Commission.
Position of the Chief Minister :
The Chief Minister is the real executive head of the State. It is
he/she who formulates the policies and guides the Council of
Ministers to implement them. He/She is the most powerful
functionary, especially when one political party has an absolute
majority in the Legislative Assembly. But if he/she heads a
coalition government, his/ her role gets restricted by the pulls
and pressures of other partners of the coalition. At times, he/she
is pressurized by a few independent Members of Legislative
Assembly (MLAs), if the majority in the House is thin.
Go To Module-1 QUESTIONS.
Q : 2012, 4 : Explain : Special procedure for passing money-bill in the
parliament
Q : 2013 : Explain : Money bill.
Q : Discuss : Money Bill Vs. Ordinary Bill
Ans :
What is a Money-Bill ? Article 110 of the Indian constitution
stipulates that a bill in Parliament is to be deemed as a money bill if
it relates to

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(a) imposition, abolition or, alteration of any tax,

(b) borrowing of money by the Government of India,

(c) the custody of the Consolidated Fund and the


Contingency Fund of India, the payment of moneys into or,
the withdrawal of money from such funds

(d) the appropriation of money out of the Consolidated


Fund of India

(e) declaring any expenditure to be expenditure charged


on the Consolidated Fund of India

(f) audit of accounts of the union or, of any state

Under Art. 110 it is clear, that a bill is a money bill only if it relates
to all or any of the six Counts specified in the article.
Whether or not a bill is a money bill is finally decided by the
Speaker of the Lok Sabha. A bill which the Speaker certifies to be a
money bill is a money bill and the decision of the Speaker cannot be
questioned
Thus all financial bills are not money bills. Only these financial bills
as are certified by the Speaker to be money bills are money bills.
Money Bill Vs. Ordinary Bill : Parliaments procedure of passing a
money bill is somewhat different from the procedure of passing an
ordinary bill.

Firstly, all money bills are Government bills and are


introduced in the Parliament with the previous sanction of the
President. Only ministers are entitled to introduce money
bills in the Parliament.

Secondly, money bills are introduced only in the Lok Sabha.


They cannot be introduced in the Rajya Sabha. Thus in the
process of passing a money bill, the preponderance of the
House of People is unquestioned.
After a money bill is introduced in the House of People, it has to
pass through the same stages as an ordinary bill has to i.e. it has to
pass through the First Reading, the Second Reading, the Committee
and the Report stage and finally the Third Reading, successively.

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Thereafter, the bill is transmitted to Rajyasabha, the Council of
States, after it is passed by the House of People. The Council of
States must return the bill to the Lower House with or without
amendments within 14 days. The Council of States cannot reject a
money bill nor can it detain a money bill for more than 14 days.
If the Rajya Sabha accepts the money bill, it is deemed to have
been passed by both Houses of Parliament. If the Rajya Sabha
suggests amendments, and the amendments are accepted by the
Lok Sabha, the amended bill is deemed to have been passed by
both the Houses. If the Lok Sabha does not accept any amendment
suggested by the Rajya Sabha. The bill is deemed to have been
passed by both the Houses of the Parliament in its original form.

Thus the Rajya Sabha can at best delay a money bill by 14


days. It can never kill a money bill, like the U. S. Senate. The
delaying power of the House of Lords in England is one
month.
After the bill is finally passed by the Lok Sabha it is presented to
the President for his assent. The President however cannot withhold
assent to a money bill as, such bills are introduced in the
Parliament with the previous assent of the President.
Most important Money-Bill :

Annual budget of the Union Government is the most


important money bill passed by the Parliament every year.
Thus the procedure of passing the budget is the same as the
procedure of passing a money bill. However the budget has
to be passed before 1st April every year because the financial
year begins from 1st April.

If the budget is not passed within 1st April, the Parliament


has to grant money to the Government in advance to carry
on the administration till the budget is passed. This is known
as vote-on-account. The Parliament also may pass
supplementary demands, when the Government needs
money beyond budgetary grant.
On the whole, it is the Lok Sabha which has the final say. It is quite
in the fitness of things because Lok Sabha is the House that directly
represents the people of India.
Go To Module-1 QUESTIONS.
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Q : 2014 : Explain : Powers, privileges and immunities of parliament


members.
Ans :
Read page-130-135 of Jhabvala

Go To Module-1 QUESTIONS.
Q : 2015 : Explain : qualifications and disqualification of members of
parliament and critical evaluation.
Ans :
Read page-127+129 of Jhabvala

Go To Module-1 QUESTIONS.
------> Q : Discuss : State legislature
Ans :
Read page-175-188 of Jhabvala
Outline :

Legislative council
Legislative assembly
discuss following for both houses ----- composition tenure
qualification/ removal of members/ defection
chairman/speaker powers /privileges/ immunities
functions position vs the other house
Go To Module-1 QUESTIONS.
Q : 2012, 4 : Discuss in detail the powers of the supreme court. Is
supreme court bound by its own decisions?
Q : 2013, 5 : Discuss jurisdiction of supreme court.
Ans :

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Art 129 Court of Record : SC is a court of record and has all the
powers including power to punish for civil or criminal contempt of
court.

In the case of Delhi Judicial Service Asso. vs State of Gujarat


1991, SC held that It can even punish for contempt of any
subordinate court in India as well. For example, In the
aftermath of babri masjid demolition, UP CM Kalyan Singh
was punished for contempt of court for failing to deliver on
his promise not to allow any construction in disputed area.
Work on is SC bound by its own decision?

Outline of SC jurisdiction :
(1) Original Jurisdiction (Art-32, 131, 143)
(A) Art-32 writ jurisdiction fundamental rights
(B) Art-131 disputes between center-state
(C) Art-143 - Advisory Jurisdiction - reference from President
(2) Appellate Jurisdiction (Art-132-137)
(A) Art-132 - Appellate Jurisdiction Constitutional
(B) Art-133 - Appellate Jurisdiction - Civil
(C) Art-134 - Appellate Jurisdiction - Criminal
(D) Art-136 - Special Leave to appeal by SC
(E) Art-137 - Power to review its judgement

(1) Original Jurisdiction (Art-32, 131, 143)


(A) Enforcement of Fundamental Rights Art 32 :

SC is the guardian of the constitution. It is the supreme


defender of the people's fundamental rights. This position
has been enforced by Art 32 that given any citizen to petition
the SC if his fundamental rights are violated. The SC is
empowered to give directions, orders, or writs including the
writs of habeas corpus, mandamus, prohibition, and certiorari
for the enforcement of the rights given in part III.

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L Chandra Kumar vs Union of India AIR 1997 - Power of


judicial review vested in HC by art 226 and in SC by art
32 is a basic feature on the constitution and cannot be
amended.

(B) Art 131 Original Jurisdiction :

The Supreme Court shall, to the exclusion of any other court,


have original jurisdiction in any dispute

a) between Center and one or more states.

b) between Center and one or more states on one side


and one or more states on another.

c) between two or more states.

The following are some exceptions under which SC does not have
jurisdiction :

1. Any treaty, covenant, sanad, agreement, or any such


instrument that was executed before the commencement of
the constitution, and which is still in operation or provides
that the jurisdiction of SC does not extend to such a dispute.

2. The parliament by law may restriction the jurisdiction of


SC in disputes related to use, distribution, or control of the
water or an interstate river or river valley.

3. Any matter referred to the Financial Commission.


4. Matters related to the adjustment of the expenses
between the center and the state.
Under original jurisdiction, the suit must involve a question of
law or fact on which a legal right depends. Further, the suit
cannot be because of any commercial relation or political
relation between the two parties.

In the case of State of Karnataka vs Union of India 1978, SC


held that the suit filed by State of Karnataka against the
Union, regarding its objection to the appointment of an
inquiry commission is maintainable.

In the case of Union of India vs State of Rajasthan 1984, it


was held that a suit to recover damages under Railway Act is
not maintainable. SC's original jurisdiction is not attracted for
ordinary commercial disputes.

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(C) Art 143 Advisory Jurisdiction :

Art. 143

1. If at any time it appears to the president that a


question of law or fact has arisen or is likely to arise and
that the question is of such public importance that
expedient opinion of the SC is required, then he may refer
it to the SC. The SC, after such hearing as it may deem
fit, will report back to the president.

2. the SC is can be asked to give opinion even on matters


not permitted under art 131.

In re Kerala Education Bill 1953, SC has interpreted the word


"may" in clause 1 as it is not bound to give its opinion. If it
has a good reason, it may refuse to express its opinion.

In the landmark case of Ayodhya Dispute and Advisory


opinion 1994, the SC refused to express its opinion on
whether a temple existed on the disputed location because it
was superfluous, unnecessary, and favors a particular
religion.
(2) Appellate Jurisdiction (Art-132-137)
(A) Art 132 Appellate Jurisdiction - Constitutional :

The SC is the highest court of appeal in the country. The


writs and the decrees of the SC run throughout the country.
A person can appeal to the SC under its appellate jurisdiction
if he is not satisfied with the decision of the lower courts. Art
132(1) allows an appeal to be filed in the SC if three
conditions are satisfied:

1. The order appealed must be against the judgement of a


high court in civil, criminal, or other proceedings.

2. The case involves a question of law as to the


interpretation of the constitution.

3. The High Court, under 134A certifies that the case be


heard by the SC.

Krishnaswamy vs Governer General in Council 1947 - If there


is a difference of opinion among High Courts and if there is

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no direct decision by SC on that point, it is a substantial
question of law that can permit appeal in SC.
(B) Art 133 Appellate Jurisdiction - Civil :

An appeal shall lie to SC from any judgement, decree, or a


final order in civil proceedings of a High Court only if the High
Court certifies under 134A that

1. the case involves an substantial question of law of


general importance.

2. in the opinion of the High Court, the said question


needs to be decided by the SC.

Madan Gopal vs State of Orrisa 1956 - The pecuniary value of


a dispute is immaterial. There may be matters which cannot
be measured in money but the decision could have a far
reaching effect and such cases can be permitted to be
appealed in SC.
(C) Art 134 Appellate Jurisdiction - Criminal :

An appeal shall lie to SC from any judgement, decree, or a


final order in criminal proceedings of a High Court in two
ways - with or without a certificate from High Court.

1. Without Certificate

a) If the High Court, on appeal, has reversed an


order of acquittal of an accused and sentenced him
to death

b) if the High Court has withdrawn a case before


itself from any subordinate court and in such a case
has convicted the accused and sentenced him to
death.

2. With Certificate

If the High Court certifies that this is a fit case for


appeal to SC.

Siddheshwar Ganguly vs State of WB 1958 - In this case SC


issued guidelines for issuing certificated under 134A. A mere
question of fact is not enough but it must also involve a
substantial question of law.
(D) Art 136 Special Leave to appeal by SC :

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Under this article, the SC is authorized to grant, on its


discretion, special leave to appeal from any judgment,
decree, determination, sentence, or order, in any case or
matter, passed or made by any court or tribunal in the
territory of India.

Ramakant Rai vs Madan Rai AIR 2004 - Private party can


appeal against the acquittal even if the state govt. hasn't.
SC cannot refrain from doing its duty just because a
private party and not the state has appealed against the
order.

(E) Art 137 Power to review its judgement. :

Under exceptional circumstance, the SC may review its


judgement.
Conclusion : Apart from above, following are also powers of SC :
Art 139 A : Transfer of certain cases :

SC has the power to withdraw before itself any case or cases


from High Courts if it feels that these cases involves the
same or similar question of law that is of general importance.

SC may transfer a case from one High Court to another under


art 136 if it feels that the case cannot be dealt with fairly in
one High Court due to exceptional circumstances.
Art 141 : Judgment of the SC is binding on all courts

In the case of Bengal Immunity Co vs State of Bihar. 1955,


SC held that the principle of Stare decisis (follow rules or
principles laid down in previous judicial decisions) is not an
inflexible rule of law and cannot be used to perpetuate
errors.

Go To Module-1 QUESTIONS.
Q : 2012 : Explain : procedure about appointment, removal and
qualifications of chief justice of india.
Ans :
Read page-147-149 of Jhabvala
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Go To Module-1 QUESTIONS.
Q : Explain the writ jurisdiction of a High Court.
Q : 2013 : Discuss : Art-226
Ans :
The constitution gives wide powers to all High Courts to ensure that
injustice is not tolerated in any sphere.
Art 226 :

1. Notwithstanding anything in article 32 every High Court


shall have power, throughout the territories in relation to
which it exercises jurisdiction, to issue to any person or
authority, including in appropriate cases, any Government,
within those territories directions, orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition,
quo warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III and for
any other purpose.
It is important to note that the power is not only to enforce
fundamental rights but also for any other purpose. This makes its
powers even wider than Supreme Court. Here, any other purpose
means any legal right of legal duty.
In a landmark case of L Chandra Kumar vs Union of India AIR 1997,
SC has held that the power of judiciary over legislative action
vested in a High Court is a basic feature of the constitution and
cannot be removed through constitutional amendment.
Types of Writs : Under Article 226, High Courts in India are
empowered to issue 6 specific types of writs, viz. the writ of
Certiorari, Prohibition, Mandamus, Habeas Corpus and Quo
Warranto.
Locus Standi : Who can apply :

In general, the person whose constitutional right or legal


right has been infringed has the right to apply. However, due
to judicial activism, the "doctrine of sufficient interest" has
originated. According to this, any person who is even
remotely affected can petition the High Court. It also allows
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public spirited persons to file a writ petition for any person or
class if that person or class is not able to do so himself due
to poverty or any other reason.

In ABSK Sangh vs Union of India AIR 1991, SC held that


even an unregistered trade union has right to file a
petition for redressal of a common grievance.

In the case of Chairman, Railway Board vs. Chandrima


Das AIR 2000, SC held that an advocate of Cal. High
Court has sufficient interest in making a public place like a
railway station a safe place and so she has right to
demand compensation for the bangladeshi woman gang
raped by railway employees.

Scope of Art 226 :

In the case of Basappa vs Naggapa, AIR 1954, SC has held


that the art 226 confers wide powers to remedy injustice
where ever it is found. Art 226 says, "...or any of them...",
which means that it is not limited only the mentioned types
of writs. It can issue orders orders of any kind that the
situation may require. Thus, it makes the scope of Art 226 a
lot wider than art 32.
Discussion :
1. In the exercise of their discretionary jurisdiction, the High
Court does not, as a Court of appeal or of revision, correct mere
errors of law or of facts.
2. The resort to the said jurisdiction is not permitted if an
alternative remedy for relief which may be obtained by suit or
other mode is prescribed by statute. Where it is open to the
aggrieved person to move another tribunal or even itself in
another jurisdiction for obtaining redress in the manner provided
in the statute, the Court does not, by exercising the writ
jurisdiction permit the machinery created by the statute to be
bypassed.
However, the existence of an adequate alternative legal
remedy is not a bar to the invocation of the High Courts
jurisdiction under Article 226 when relief is sought in case of
an infringement of a fundamental right or a tribunal acting

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ultra-vires to its jurisdiction or when the principles of natural
justice have not been followed.
3. It does not generally enter upon the determination of
questions which demand an elaborate examination of evidence to
establish the right to enforce which the writ is claimed.
4. It does not interfere on the merits with the determination of
the issues made by the authority invested with statutory power,
particularly when they relate to matters calling for judicial
intervention, such as, where the determination is malafide or is
prompted by extraneous considerations or is made in
contravention of the principles of natural justice or any
constitutional provision.
5. The Court may also intervene where :
a. the authority acting under the concerned law does not have
the requisite authority or the order which is purported to have
been passed under the law is not warranted or is in breach of
the provisions of the concerned law or the person against
whom the action is taken is not the person against whom the
order is directed;
b. where the authority has exceeded its powers or jurisdiction
or has failed or refused to exercise jurisdiction vested in it;
c. where the authority has not applied its mind at all or has
exercised its power dishonestly or for an improper purpose;
6. Where the Court cannot grant a final relief, the Court does not
entertain a petition only for giving interim relief. If the Court is of
the opinion that there is no other convenient or efficacious
remedy open to the petitioner, it will proceed to investigate the
case on its merits and if the Court finds that there is an
infringement of the petitioners legal rights, it will grant final
relief but will not dispose off the petition only by granting interim
relief.
7. Where the satisfaction of the authority is subjective, the Court
intervenes when the authority has acted under the dictates of
another body or when the conclusion is arrived at by the
application of a wrong test or misconstruction of a statute or it is
not based on material which is of rationally probative value and
relevant to the subject matter in respect of which the authority is

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to satisfy itself. If again the satisfaction is arrived at by taking
into consideration material which the authority properly could
not, or by omitting to consider matter which it ought to have, the
Court interferes with the resultant order.
8. In proper cases the Court also intervenes when some legal or
fundamental right of the individual is seriously threatened,
though not actually invaded.
9. High Courts ordinarily do not decide questions of fact and is
left upon the statutory mechanism to adjudicate such matters. It
is adjudicated in the rarest of rare cases.
Court Martial and art 226 :

In a significant case, Delhi High Court held that section 18 of


India Army Act is not beyond the scope of High Court. While
High Court may not interfere in the sentence awarded in a
court martial, such an order cannot be arbitrary and mala
fide. Thus, it is open to judicial review.
Dispute between private parties - No Jurisdiction :

In Mohan Pandey vs Usha Rani Rajgaria SCC 1992, SC held


that the extraordinary jurisdiction of High Court cannot be
exercised in the private party disputes relating to property
rights unless there is a violation of statutory rights by
statutory authorities.
Natural Justice :

Natural Justice is not exclusively the principle of


administrative law. The courts are also bound by the same
principle. Every administrative action must be supported by
reasons. The reasons must be recorded to ensure that there
is no arbitrariness.
Territorial extent of writ jurisdictions :

Art 226 imposes two limits on HC's writ. First, it can run only
in the territorial jurisdiction of the High Court and secondly
the person or authority must lie in that jurisdiction.

In the case of Election Commision of India vs Venkata Rao,


AIR 1975 SC held that Madras High Court cannot issue a writ
to ECI because it is based in New Delhi and so is out of its
jurisdiction. The law commission recommended that these
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are serious limitations and they defeat the very purpose of
this article. So it was amended by 15th amendment in 1963.
High Court can now issue a writ even to a central authority if
the cause of action in whole or part arises in its jurisdiction.
Discretionary Remedy - Not to be exercised if alternate remedy is
available :

The remedy available in 226 is a discretionary remedy and


the High Court has the discretion to accept or refuse a
petition. In general, if a remedy is available elsewhere, writs
under 226 are discouraged. However, this does not mean
that any remedy available can be a ground for not
entertaining the petition under 226. The remedy must be
effective and sufficient.

In the case of Vellaswamy v IG Police, Madras 1982, SC


held that the remedy under Police Rules of TN was not
sufficient and so High Court was wrong in dismissing the
petition.

Effect of delay : Remedy under 226 should be sought within a


reasonable time. However, High Court may accept a petition is there
is a reasonable cause for delay in seeking justice. Poverty has been
held to be reasonable ground.
CONCLUSION :

The prerogative powers of writ jurisdiction conferred by the


constitution for judicial review of administrative action is
undoubtedly discretionary and yet unbounded in its limits.
The discretion however should be exercised on sound legal
principles. In this respect it is important to emphasise that
the absence of arbitrary power is the first essential of the
rule of law upon which the whole constitution system is
based.
Go To Module-1 QUESTIONS.
Q : 2012 : Explain the difference between Art-32 and 226.
Ans :

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Similarities : Power of issuing writs comes under original jurisdiction
(to hear the matter at first instance) of both Supreme Court and High
Courts. An aggrieved person has option to move any of them.
Differences :
While Supreme Court has power to issue writs via article 32, High
Courts have this power via article 226.
While Supreme Court has power to issue writs for enforcement of
ONLY Fundamental rights, High Courts can issue writs for
enforcement of fundamental rights as well as any other matter also.
Thus, High Court has a wider jurisdiction from Supreme Court in
matter of issuing writs.
During emergency, SC can not grant relief on suspension of FR.
However, HCs will continue to grant relief.
Supreme Court cannot refuse to exercise its writ jurisdiction mainly
because article 32 itself is a fundamental right and supreme court is
guarantor or defender of fundamental rights. However, for high
courts, exercising the power to issue writs is discretionary.
Supreme Court can issue a writ against any person or authority
within the territory of India while high court can issue such writ
under its own territorial jurisdiction. Thus, High courts writ
jurisdiction is narrower in terms of territorial extent.

ARTICLE 32

ARTICLE 226

Fundamental Right

Constitutional Right

Can Be Suspended During

Cannot Be Suspended

Emergency
Limited Scope (fundamental

Wider Scope (FR + Other Rights)

Rights Only)
Wider Jurisdiction (All Over India) Limited Jurisdiction (Concerned
State Only)
Go To Module-1 QUESTIONS.
Q : 2014 : Discuss the procedure about appointment, removal and
qualifications of chief justice of high court.
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Q : 2015 : Explain appointment, transfer and removal of high court
judge.
Ans :
Read page-193-195 of Jhabvala

Go To Module-1 QUESTIONS.
Q : 2012 : Explain : Writ of Habeas Corpus.
Ans :
see notes of 108 Constitutional Law Paper - I.

Q : Explain : Writ of Mandamus.


Ans :
see notes of 108 Constitutional Law Paper I.

Q : 2014 : Explain : Writ of Prohibition.


Ans :
see notes of 108 Constitutional Law Paper I.

Q : 2014 : Explain : Writ of Certiorari.


Ans :
see notes of 108 Constitutional Law Paper I.

Q : Explain : Writ of Quo Warranto.


Ans :
see notes of 108 Constitutional Law Paper I.

Go To Module-1 QUESTIONS.

Module-2) Amendment of the Constitution :


2..1)Procedure to amend the Constitution under Article 368

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2..2)Limited power of the Parliament to amend the provisions of
the Constitution

2..3)Judicial Pronouncements of the Supreme Court and relevant


Constitutional Amendments

2..4)Basic Structure Doctrine


Module-2 QUESTIONS :

Q : 2012, 4, 5 : Explain : procedure for amendment of constitution under


Art-368.
Q : 2013 : Explain basic structure doctrine with case law.

Go To CONTENTS.
Module-2 ANSWERS :
Q : 2012, 4, 5 : Explain : procedure for amendment of constitution under
Art-368.
Q : 2013 : Explain basic structure doctrine with case law.
Ans :
Read answer from notes for 108 Constitutional Law I ----> Module-1 Q
: 2015 : Explain : basic structure theory to the preamble / power of
parliament to amend the constitution.
Go To Module-2 QUESTIONS.

Module-3) Emergency provisions :


3..1)National Emergency : Grounds, Effects of proclamation of
Emergency : Suspension of Fundamental Rights during
Emergency, Revocation of Emergency

3..2)Emergency due to failure of Constitutional Machinery in


States : Grounds

3..3)Report of Sarkaria Commission, Guidelines of S. R. Bommais


case

3..4)Financial Emergency

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Module-3 QUESTIONS :

Q : 2012, 3, 4, 5 : What is meant by Emergency? When can there be


proclamation of emergency? What is the effect of proclamation of
emergency?

Q : Discuss : Effect of emergency declaration on Fundamental Rights :


Q : 2013 : Explain : failure of constitutional machinery in state
Q : 2012 : Explain the case of S R Bommai -vs- Union of India.
Q : 2013, 5 : Explain : S R Bommai -vs- Union of india

Go To CONTENTS.
Module-3 ANSWERS :
Q : 2012, 3, 4, 5 : What is meant by Emergency? When can there be
proclamation of emergency? What is the effect of proclamation of
emergency?
Ans :
http://www.legalservicesindia.com/article/article/position-offundamental-rights-during-emergency-589-1.html
Intro : Emergency (Art-352 to 360) & fundamental rights :
When the Constitution of India was being drafted, India was passing
through a period of Stress and strain. Partition of the country, communal
riots and the problem concerning the Merger of princely states including
Kashmir. Thus, the Constitution-makers thought to Equip the Central
Government with the necessary authority, so that, in the hour of
emergency, When the security and stability of the country is threatened
by internal and external threats. Therefore, some emergency provisions
were made in Constitution to safeguard and protect the security,
integrity and stability of the country and effective functioning of State
Governments.
Keeping in view the above stated points constitution makers inserted
three kinds of emergency :
1. National emergency (Article 352 of the constitution of india)

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2. State emergency (Article 356 of the constitution of india)
3. Financial emergency (Article 360 of the constitution of india)

1. NATIONAL EMERGENCY :
As it is very clear from the opening words of the above stated
heading,national emergency deals with constitutional provisions to be
applied,whenever there are inbalance in the society in the whole
country and not in a particular or specific region or state.
Art-352 : Proclamation of Emergency :
(1) If the President is satisfied that a grave emergency exists
whereby the security of India or of any part of the territory
thereof is threatened, whether by war or external aggression or
armed rebellion, he may, by Proclamation, make a declaration to
that effect in respect of the whole of India or of such part of the
territory thereof as may be specified in the Proclamation.
Explanation-A Proclamation of Emergency declaring that the
security of India or any part of the territory thereof is threatened
by war or by external aggression or by armed rebellion may be
made before the actual occurrence of war or of any such
aggression or rebellion, if the President is satisfied that there is
imminent danger thereof.
(2) ---- (9)

Proclamations of National Emergency until 2016 :


National Emergency has been declared in our country three times
so far.
For the first time,emergency was declared on 26 October 1962 after
China attacked our borders in the North East. This National
Emergency lasted till 10 January 1968, long after the hostilities
ceased.
For the second time, it was declared on 3 December 1971 in the
wake of the second India-Pakistan War and was lifted on 21 March
1977. While the second emergency, on the basis of external
aggression, was in operation,

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third National Emergency (called internal emergency) was imposed
on 25 June 1975 and was lifted on 21 March 1977. This emergency
was declared on the ground of internal disturbances. Internal
disturbances justified impositin of the emergency despite the fact
that the government was already armed with the powers provided
during the second National Emergency of 1971 which was still in
operation.
NB : AFTER 1978 THE WORD INTERNAL DISTURBANCES IN ART-352
WAS SUBSTITUTED BY ARMED REBELLION. TO NARROW THE VIEW
OF DISTURBANCES AND TO REMOVE THE VAGUENESS AND
AMBIGUITY.
Discussion :
Provisions have been made in the Constitution for dealing with
extraordinary situations that may threaten the peace, security,
stability and governance of the country or a part thereof.
The Constitution of India has provided for imposition of emergency
caused by war, external aggression or internal rebellion. This is
described as the National Emergency. This type of emergency can
be declared by the President of India if he is satisfied that the
situation is very grave and the security of India or any part thereof
is threatened or is likely to be threatened either, by war or external
aggression by armed rebellion within the country. The President can
issue such a proclamation even on the ground of threat of war or
aggression. According to the 44th Amendment of the Constitution,
the President can declare such an emergency only if the Cabinet
recommends in writing to do so.
Art-352 phrase - ". . . the security of India or any part of the
territory thereof is threatened . . ." this statements talks about the
situation when either the country wholly or any part of the
country,but that would not be considered as state emergency,also
this kind of proclamation may be made before the actual occurrence
of such war, external aggression or armed rebellion.
Art-352 phrase - armed rebellion was not there in the
constitutional provisions from the very beginning. Until 1978 an
emergency could be declared because of war, external aggression
or internal disturbance, that was too vague and broad in sense.

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The 44th constitutional amendment substituted the word armed
rebellion for internal disturbance.
The intention underlying the substitution of the words internal
disturbance by armed rebellion is to limit the invocation of Art352 only to more serious situations where there is a threat to the
security of the country.
Procedure of proclaiming emergency :
Such a proclamation can be made by the president of the country,
only if the Cabinet recommends in writing to do so. Such a
proclamation of emergency has to be approved by both the Houses
of Parliament by absolute majority of the total membership of the
Houses as well as 2/3 majority of members present and voting
within one month, otherwise the proclamation ceases to operate.
Once approved by the Parliament, the emergency remains in force
for a period of six months from the date of proclamation. In case it
is to be extended beyond six months, another prior resolution has
to be passed by the Parliament. In this way, such emergency
continues indefinitely.
In the case of Minerva Mills ltd.vs Union of India held that there is
no bar to judicial review of the validity of the proclamation of
emergency issued by the president under 352(1). However, court's
power is limited only to examining whether the limitations conferred
by the constitution have been observed or not. It can check if the
satisfaction of the president is valid or not. If the satisfaction is
based on mala fide or absurd or irrelevant grounds, it is no
satisfaction at all.
Procedure of revoking emergency :
If the situation improves the emergency can be revoked by another
proclamation by the President of India.
The 44th Amendment of the Constitution provides that ten per cent
or more members of the Lok Sabha can requisition a meeting of the
Lok Sabha and in that meeting, it can disapprove or revoke the
emergency by a simple majority. In such a case emergency will
immediately become inoperative.

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Effects of national emergency (Art-353) : The declaration of National


Emergency has effects both on the rights of individuals and the
autonomy of the states in the following manner :
The most significant effect is that the federal form of the
Constitution changes into unitary. The authority of the Centre
increases and the Parliament assumes the power to make laws
for the entire country or any part thereof, even in respect of
subjects mentioned in the State List.
The President of India can issue directions to the states as to the
manner in which the executive power of the states is to be
exercised.
During period, the Lok Sabha can extend tenure by a period of 1
year at a time. But the same can't be extended beyond 6 months
after the proclamation ceases to operate. The tenure of State
Assemblies can also be extended in the same manner.
During emergency, the President is empowered to modify the
provisions regarding distribution of revenues between the Union
and the States.
The Fundamental Rights under Article 19 are automatically
suspended and this suspension continues till the end of the
emergency. But according to the 44th Amendment, Freedoms
listed in Article 19 can be suspended only in case of proclamation
on the ground of war or external aggression.
Verify - Emergency also results in suspension of fundamental
rights EXCLUDING those conferred in Art-20 and Art-21
Conclusion : From the above discussion, it becomes quite clear that
emergency not only suspends the autonomy of the States but also
converts the federal structure of India into a unitary one. Still it is
considered necessary as it equips the Union Government with vast
powers to cope up with the abnormal situations.
2. STATE EMERGENCY
Art-356 Provisions in case of failure of constitutional machinery in
States :

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(1) If the President, on receipt of a report from the Governor of a
State or otherwise, is satisfied that a situation has arisen in
which the Government of the State cannot be carried on in
accordance with the provisions of this Constitution, the President
may by Proclamation
(a) assume to himself all or any of the functions of the
Government of the State and all or any of the powers vested in
or exercisable by the Governor or any body or authority in the
State other than the Legislature of the State;
(b) declare that the powers of the Legislature of the State shall
be exercisable by or under the authority of Parliament;
(c) make such incidental and consequential provisions as appear
to the President to be necessary or desirable for giving effect to
the objects of the Proclamation, including provisions for
suspending in whole or in part the operation of any provisions of
this Constitution relating to any body or authority in the State:
Provided that nothing in this clause shall authorise the President
to assume to himself any of the powers vested in or exercisable
by a High Court, or to suspend in whole or in part the operation
of any provision of this Constitution relating to High Courts.
(2) . . . (5)

Proclamations of STATE Emergency until 2016 :


This type of emergency has been imposed in most of the States at
one time or the other for a number of times. in 1951 that this type
of emergency was imposed for the first time in the Punjab State.
In 1957, the Kerala State was put under the Presidents Rule.
There have been many cases of misuse of constitutional
breakdown. For example, in 1977 when Janata Party came into
power at the Centre, the Congress Party was almost wiped out in
North Indian States. On this excuse, Desai Government at the
Centre dismissed nine State governments where Congress was still
in power. This action of Morarji Desais Janata Government was
strongly criticised by the Congress and others. But, when in 1980
(after Janata Government had lost power) Congress came back to
power at the Centre under Mrs Gandhis leadership and dismissed
all the then Janata Party State Governments. In both cases there
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was no failure of Constitutional machinery, but actions were taken
only on political grounds.
In 1986, emergency was imposed in Jammu and Kashmir due to
terrorism and insurgency.
In all, there are more than hundred times that emergency has been
imposed in various States for one reason or the other. However,
after 1995 the use of this provision has rarely been made.
Discussion :
It is the duty of the Union Government to ensure that governance
of a State is carried on in accordance with the provisions of the
Constitution. Under Article 356, the President may issue a
proclamation to impose emergency in a state if he is satisfied on
receipt of a report from the Governor of the State, or otherwise,
that a situation has arisen under which the Government of the
State cannot be carried on smoothly. In such a situation,
proclamation of emergency by the President is called proclamation
on account of the failure (or breakdown) of constitutional
machinery. In popular language it is called the Presidents Rule.
Procedure of proclaiming state emergency :
Like National Emergency, such a proclamation must also be placed
before both the Houses of Parliament for approval. In this case
approval must be given within two months, otherwise the
proclamation ceases to operate. If approved by the Parliament, the
proclamation remains valid for six months at a time. It can be
extended for another six months but not beyond one year.
However, emergency in a State can be extended beyond one year if
(a) a National Emergency is already in operation; or if
(b) the Election Commission certifies that the election to the State
Assembly cannot be held.
Procedure of revoking state emergency :
Any such Proclamation may be revoked by a subsequent
Proclamation.

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Every Proclamation shall be laid before each House of Parliament
and shall, except where it is a Proclamation revoking a previous
Proclamation, cease to operate at the expiration of two months
unless before the expiration of that period it has been approved by
resolutions of both Houses of Parliament:
Effect of state emergency : The declaration of emergency due to the
breakdown of Constitutional machinery in a State has the following
effects:
The President can assume to himself all or any of the functions of
the State Government or he may vest all or any of those functions
with the Governor or any other executive authority.
The President may dissolve the State Legislative Assembly or put it
under suspension. He may authorise the Parliament to make laws
on behalf of the State Legislature.
The President can make any other incidental or consequential
provision necessary to give effect to the object of proclamation.
Criticism of presidents rule The way Presidents Rule is imposed, may, on various occasions
raise many questions. At times the situation really demand it. But
often Presidents Rule is imposed purely on political grounds to
topple the ministry formed by a party different from the one at the
Centre, even if that particular party enjoyed majority in the
Legislative Assembly.
Suspending or dissolving assemblies and not giving a chance to the
other political parties to form governments in states has been due
to partisan consideration of the Union Government, for which Article
356 has been clearly misused.
Conclusion :
In view of the above facts, Article 356 has become very
controversial. In spite of the safeguards provided by the 44th
Amendment Act, this provision has been alleged to be misused by
the Union Government. That is why, there is a demand either for its

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deletion or making provision in the Constitution to restrict the
misuse of this Article.
The Sarkaria Commission which was appointed to review the
CentreState relations also recommended that,
Article 356 should be used only as a last resort.
the State Legislative Assembly should not be dissolved unless
the proclamation is approved by the Parliament.
all possibilities of forming an alternative government should be
fully explored before the Centre imposes emergency in a State
on grounds of breakdown of Constitutional machinery.
The Supreme Court held in the Bommai case that the Assembly
may not be dissolved till the Proclamation is approved by the
Parliament. On a few occasions such as when Gujral Government
recommended use of Article 356 in Uttar Pradesh, the President
returned the recommendation for reconsideration. The Union
Government took the hint and dropped the proposal.
3. FINANCIAL EMERGENCY :
Art-360 : Provisions as to financial emergency :
(1) If the President is satisfied that a situation has arisen whereby
the financial stability or credit of India or of any part of the territory
thereof is threatened, he may by a Proclamation make a declaration
to that effect.
(2) . . . (4)

The third type of Emergency is Financial Emergency provided under


Article 360. It provides that if the President is satisfied that the
financial stability or credit of India or any of its part is in danger, he
may declare a state of Financial Emergency.
IN INDIA FINANCIAL EMERGENCY HAS NEVER BEEN DECLARED.
Hence none of the provision have ever come in to dispute. But the
need and reason for financial emergency, if it ever occurs, would be
danger to the financial stability or credit of India or any of its part.
Procedure of proclaiming state emergency :

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Like the other two types of emergencies, it has also to be approved
by the Parliament. It must be approved by both Houses of
Parliament within two months. Financial Emergency can operate as
long as the situation demands and may be revoked by a subsequent
proclamation.
Art 360 provides that if the president is satisfied that a situation
has arisen whereby the financial security of India or the credit of
India or of any part of India is threatened, he may make a
declaration to that effect. Under such situation, the executive and
legislative powers will go to the centre. This article has never been
invoked.
Procedure of revoking state emergency :
A Proclamation issued under Art. 360
(a) may be revoked or varied by a subsequent Proclamation
(b) shall be laid before each House of Parliament
(c) shall cease to operate at the expiration of two months, unless
before the expiration of that period it has been approved by
resolutions of both Houses of Parliament.
Effects of Financial Emergency : The proclamation of Financial
Emergency may have the following consequences :
(a) The Union Government may give direction to any of the States
regarding financial matters.
(b) The President may ask the States to reduce the salaries and
allowances of all or any class of persons in government service.
(c) The President may ask the States to reserve all the money bills
for the consideration of the Parliament after they have been passed
by the State Legislature.
(d) The President may also give directions for the reduction of
salaries and allowances of the Central Government employees
including the Judges of the Supreme Court and the High Courts.
As mentioned earlier So far, fortunately, financial emergency has
never been proclaimed.

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Go To Module-3 QUESTIONS.
Q : Discuss : Effect of emergency declaration on Fundamental Rights
Ans :
The issue comes in to play on following 2 occasions :
War Emergency : If the president is satisfied that a grave emergency
exists whereby the security of India or any part of its territory is
threatended by war, external aggression or armed rebellion, he may
proclaim a state of emergency under Art-352.
Constitutional Emergency in the States : If the President is satisfied
on receipt of a report from the Governor or otherwise that a situation
has arisen in which the Government of a Sate cannot be carried on in
accordance with eh provisions of the Constitution, he is empowered to
proclaim an emergency under Articles 356
Suspension of Fundamental Rights :
During the period of emergency, as declared under the either of the
two categories discussed above, the State is empowered to suspend
the Fundamental Rights guaranteed under Article 19 of the
Constitution. The term 'State' is used here in the same sense in which
it has been used in the Chapter on Fundamental Rights. It means that
the power to suspend the operation of these Fundamental Rights is
vested not only in Parliament but also in the Union Executive and even
in subordinate authority. Further, the Constitution empowers the
President to suspend the right to move any court of law for the
enforcement of any of the Fundamental Rights. It means that virtually
the whole Chapter on Fundamental Rights can be suspended during
the operation of the emergency.
Limitations : However,
such order are to be placed before Parliament as soon as possible for
its approval.
Art-20 and Art-21 can not be suspended IN ANY CASE.

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Discussion :
Suspension of fundamental rights during emergency is a matter of
debate and conflicts of opinion ab initio.
it would be a mistake to treat human rights as though there were a
trade-off to be made between human rights and goals such a security
and development.
Fundamental rights are moral rights which have been made legal by
the Constitution. These constitutional rights which are fundamental in
character represent rights in the strong sense. They are distinct from
ordinary legal and constitutional rights because they may not be
restricted on ground of general utility.
The very essence of these rights is that they are guaranteed even if
the majority would be worse off in doing so, that fundamental rights
are necessary to protect the dignity of an individual. Invasion of these
rights is a very serious matter and it means treating a man as less
than a man. This is grave injustice and it is worth paying the
incremental cost in social policy or efficiency that is necessary to
prevent it.
Are Fundamental Rights, absolute ? : After so many debates and many
conflicts the question arise - Whether the fundamental rights are
absolute?
Fundamental rights are not absolute in nature. The government may
impose restrictions on three grounds :
A. The government might show that the values protected by the
original right are not really at stake in the marginal case or at stake
only in some attenuated form.
B. The government may limit rights if it believes that a competing
right is more important. If the right is defined to include the
marginal case, then some competing right, in the strong sense,
would be abridged. This is the principle of competing rights of other
members of society as individuals. Making this rights choice and
protecting the more important at the cost of the less important,
does not weaken the notion of rights.
C. The third possibility is, if it may show that if the right were so
defined then the cost to society would not be simply incremental
but would be of a degree far beyond the cost paid to grant the
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original right, a degree great enough to justify whatever assault on
dignity of the individual it may result in.
Trade-off between Fundamental Rights -VS- Emergency :
Most of debates on the issue assume a necessary trade off between
rights and security, however it is submitted that the relation between
the two is more complex than that.
Restrictions on rights on ground of security are not justified per se.
This may be because the trade off is unnecessary where the
government may pass effective laws which do not violate rights or
when harsh laws restricting rights will not yield results. However
tensions do arise. If the security strategy genuinely implicates rights,
then it may be justified and must be governed by the principle of
proportionality. Proportionality analysis is an uphill task and involves
balancing of the two social goods of liberty and security.
Go To Module-3 QUESTIONS.
Q : 2013 : Explain : failure of constitutional machinery in state
Q : 2012 : Explain the case of S R Bommai -vs- Union of India.
Q : 2013, 5 : Explain : S R Bommai -vs- Union of india
Ans :
Read Intro and 2. STATE EMERGENCY from HERE previous questions.

S R Bommai -vs- Union of India :


http://www.wow.com/wiki/S._R._Bommai_v._Union_of_India
Intro :
S. R. Bommai v. Union of India ([1994] 2 SCR 644 : AIR 1994 SC
1918 : (1994)3 SCC1) was a landmark judgment of the Supreme
Court of India, where the Court discussed at length provisions of
Article 356 of the Constitution of India and related issues. This case
had huge impact on Centre-State Relations. The misuse of Article
356, popularly known as "President's rule", to impose central
authority on states, was stopped after this judgement

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Background :
Article 356 deals with imposition of President's Rule over a State of
India. When a state is under President's Rule, the elected state
government (led by the Chief Minister and the Council of Ministers)
is suspended, and administration is conducted directly by the
Governor of the state. The Governor is an appointee of the
President and thus, effectively, a functionary of the Union
Government (the central or federal government). Thus imposition of
President's Rule negates the federal character of the Indian political
system, where administration usually is shared between the Union
and State governments. It also militates against the democratic
doctrine of popular sovereignty, since an elected government is
suspended. These reasons have made use of Article 356
controversial. Nevertheless, it was used repeatedly by central
governments to suspend state governments (of opposite political
parties) based on genuine reasons or trumped-up excuses.[3]
Art-356 supposed to be a dead letter of the Constitution : Dr
Bhimrao Ramji Ambedkar, chairman of the Drafting Committee of
the Constitution of India, referred to Article 356 as a dead letter of
the Constitution. In the constituent assembly debate it was
suggested that Article 356 is liable to be abused for political gains.
Dr. Ambedkar replied, I share the sentiments that such articles will
never be called into operation and they would remain a dead letter.
If at all they are brought into operation, I hope the President, who
is endowed with these powers, will take proper precautions before
actually suspending the administration of the provinces. I hope the
first thing he will do would be to issue a mere warning to a province
that has erred, that things were not happening in the way in which
they were intended to happen in the Constitution. If that warning
fails, the second thing for him to do will be to order an election
allowing the people of the province to settle matters by themselves.
It is only when these two remedies fail that he would resort to this
article.
The Facts of the case : S.R. Bommai v. Union of India came before the
bench of 9 judges (consisting of Kuldip Singh, P. B. Sawant, Katikithala
Ramaswamy, S. C. Agarwal, Yogeshwar Dayal, B. P. Jeevan Reddy, S.

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R. Pandian, A. M. Ahmadi, J. S. Verma) under the following
circumstances :
In 1988, the Janata Party being the majority party in the State
Legislature had formed Government under the leadership of S.R.
Bommai. In September 1988, the Janata Party and Lok Dal merged
into a new party called Janata Dal. The Ministry was expanded with
addition of 13 members.
Within two days thereafter, one K.R. Molakery, a legislator of Janata
Dal defected from the party. He presented a letter to the Governor
along with 19 letters, allegedly signed by legislators supporting the
Ministry, withdrawing their support to the Ministry.
As a result, on 19 April, the Governor sent a report to the President
stating therein there were dissensions and defections in the ruling
party. He further stated that in view of the withdrawal of the
support by the said legislators, the chief Minister, Bommai did not
command a majority in the Assembly and, hence, it was
inappropriate under the Constitution, to have the State
administered by an Executive consisting of Council of Ministers
which did not command the majority in the state assembly. He,
therefore, recommended to the President that he should exercise
power under Article 356(1).
However, on the next day seven out of the nineteen legislators who
had allegedly written the said letters to the Governor sent letters to
him complaining that their signatures were obtained on the earlier
letters by misrepresentation and affirmed their support to the
Ministry. The Chief Minister and his Law Minister met the Governor
the same day and informed him about the decision to summon the
Assembly, even by bringing forward the scheduled session, to prove
the confidence of assembly in his government. To the same effect,
he sent a telex message to the President.
The Governor however sent yet another report to the President on
the same day i.e., 20-4-1989, and stated that the Chief Minister
had lost the confidence of the majority in the House and repeated
his earlier request for action under Article 356(1). On that very day,
the President issued the Proclamation in question with the recitals
already referred to above. The Proclamation was, thereafter
approved by the Parliament as required by Article 356(3).

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A writ petition was filed on 26 April 1989 challenging the validity of
the proclamation. A special bench of 3 judges of Karnataka High
Court dismissed the writ petition.
The Contentions : S. R. Bommai v. Union of India raised serious
question of law relating to Proclamation of President's Rule and
dissolution of Legislative assemblies according to Article 356 of the
Constitution of India.
1. Most important question which the Supreme Court had to
determine was whether the Presidential Proclamation under Article
356 was justiciable and if so to what extent.
2. It was contended that since the Proclamation under Article
356[1] was issued by the President on the advice of the Council of
Ministers given under Article 74(1) of the Constitution and since
Clause [2] of the said Article bars inquiry into the question whether
any, and if so, what advice was tendered by Ministers to the
President, judicial review of the reasons which led to the issuance of
the Proclamation also stands barred.
3. Whether the President has unfettered powers to issue
Proclamation under Article 356(1) of the Constitution.
4. Whether the Legislature dissolved by the Presidents proclamation
can be revived if the president proclamation is set aside. Whether
the validity of the Proclamation issued under Article 356(1) can be
challenged even after it has been approved by both Houses of
Parliament under Article 356(3).
5. Whether any reliefs can be granted when the validity of
proclamation is challenged and whether the court can grant an
interim stay against holding the fresh election.
6. Whether a president can dissolve the legislature without having
obtained the approval of both the Houses of the Legislature.
7. Secularism being a basic feature of the Constitution, can a State
government be dismissed if it is guilty of nonsecular acts.
Judgment on 7 contentions :
(1) Is Presidential proclamation justiciable? :

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While dealing with the question as to whether the Presidential
Proclamation under Article 356 was justiciable all the judges
were unanimous in holding that the presidential proclamation
was justiciable. The Supreme Court held that the proclamation
under Article 356(1) is not immune from judicial review. The
validity of the Proclamation issued by the President under Article
356(1) is judicially reviewable to the extent of examining
whether it was issued on the basis of any material at all or
whether the material was relevant or whether the Proclamation
was issued in the malafide exercise of the power. The Supreme
Court or the High court can strike down the proclamation if it is
found to be malafide or based on wholly irrelevant or extraneous
grounds. The deletion of Clause (5) by the 44th Amendment Act,
removes the cloud on the reviewability of the action.
When a prima facie case is made out in the challenge to the
Proclamation, the Union of India has to produce the material on
the basis of which action was taken. It cannot refuse to do so, if
it seeks to defend the action. The court will not go into the
correctness of the material or its adequacy. Its inquiry is limited
to whether the material was relevant to the action. Even if part
of the material is irrelevant, the court cannot interfere so long as
there is some material which is relevant to the action taken. It is
submitted that the validity of the Presidents proclamation under
Article 356 is justiciable.
(2) Article 74 and Justiciability of advice of Council of Ministers to
President :
In regard to the contention, that Article 74(2) bars the inquiry
into advice was tendered by Council of Ministers to the President,
the Supreme Court at length considered the scope and effect of
Article 74(2). Here it would be appropriate to mention that article
74(2) of the constitution provides that the court cannot inquire
as to any, and if so what, advice was tendered by Council of
Ministers to the President. In this regard Supreme Court held
that although Article 74(2) bars judicial review so far as the
advice given by the Ministers is concerned, it does not bar
scrutiny of the material on the basis of which the advice is given.
The material on the basis of which advice was tendered does not
become part of the advice. The Courts are justified in probing as

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to whether there was any material on the basis of which the
advice was given, and whether it was relevant for such advice
and the President could have acted on it. Hence when the Courts
undertake an inquiry into the existence of such material, the
prohibition contained in Article 74(2) does not negate their right
to know about the factual existence of any such material. This is
not to say that the Union Government cannot raise the plea of
privilege under Section 123 of the Evidence Act. As and when
such privilege against disclosure is claimed, the Courts will
examine such claim within the parameters of the said section on
its merits. But Article 74(2) as such is no bar to the power of
judicial review regarding the material on the basis of which the
proclamation is issued.
(3) Powers of President under Article 356 :
The second question which was taken into consideration by the
court was that whether the President has unfettered powers to
issue Proclamation under Article 356(1) of the Constitution. It
was contended that The Supreme Court in this regard held that
the power conferred by Article 356 upon the President is a
conditioned power. It is not an absolute power. This satisfaction
may be formed on the basis of the report of the Governor or on
the basis of other information received by him or both. The
existence of relevant material is a pre-condition to the formation
of satisfaction. The satisfaction must be formed on relevant
material. The dissolution of the Legislative Assembly should be
resorted to only when it is necessary for achieving the purposes
of the proclamation. The exercise of the power is made subject to
approval of the both Houses of Parliament.
(4) Invalidation of Proclamation :
The Supreme Court also held that the power of the court to
restore the government to office in case it finds the proclamation
to be unconstitutional, it is, in Courts opinion, beyond question.
Even in case the proclamation is approved by the Parliament it
would be open to the court to restore the State government to its
office in case it strikes down the proclamation as
unconstitutional. If this power were not conceded to the court,
the very power of judicial review would be rendered nugatory
and the entire exercise meaningless. If the court cannot grant

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the relief flowing from the invalidation of the proclamation, it
may as well decline to entertain the challenge to the
proclamation altogether. For, there is no point in the court
entertaining the challenge, examining it, calling upon the Union
Government to produce the material on the basis of which the
requisite satisfaction was formed and yet not give the relief.
(5) Elections to Legislature pending final Disposal of case :
Another issue taken into consideration by the Supreme Court was
whether any reliefs can be granted when the validity of
proclamation is challenged and whether the court can grant an
interim stay against holding the fresh election. In this regard the
Court held that the Court will have power by an interim
injunction, to restrain the holding of fresh elections to the
Legislative Assembly pending the final disposal of the challenge
to the validity of the proclamation to avoid the fait accompli and
the remedy of judicial review being rendered fruitless.
(6) Powers of Parliament :
Moreover, the Supreme Court firmly held that there was no
reason to make a distinction between the Proclamation so
approved and legislation enacted by the Parliament. If the
Proclamation is invalid, it does not stand validated merely
because it is approved of by the Parliament. The grounds for
challenging the validity of the Proclamation may be different from
those challenging the validity of legislation. However, that does
not make any difference to the vulnerability of the Proclamation
on the limited grounds available. And therefore the validity of the
Proclamation issued under Article 356(1) can be challenged even
after it has been approved by both Houses of Parliament under
Article 356(3).
(7) Secularism :
Supreme Court, (while adjudicating that a State Government
cannot follow particular religion), discussed at length the concept
of Secularism. The Court held that Secularism is one of the basic
features of the Constitution. Secularism is a positive concept of
equal treatment of all religions. This attitude is described by
some as one of neutrality towards religion or as one of
benevolent neutrality. While freedom of religion is guaranteed to
all persons in India, from the point of view of the State, the
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religion, faith or belief of a person is immaterial. To the state, all
are equal and are entitled to be treated equally. In matters of
State, religion has no place. And if the Constitution requires the
State to be secular in thought and action, the same requirement
attaches to political parties as well. The Constitution does not
recognize, it does not permit, mixing religion and State power.
Both must be kept apart. That is the constitutional injunction.
None can say otherwise so long as this Constitution governs this
country. Politics and religion cannot be mixed. Any State
government which pursues nonsecular policies or nonsecular
course of action acts contrary to the constitutional mandate and
renders itself amenable to action under Article 356.
Given the above position, it is clear that if any party or
organization seeks to fight the elections on the basis of a plank
which has the proximate effect of eroding the secular philosophy
of the Constitution would certainly be guilty of following an
unconstitutional course of action.
The Principles laid down by Supreme Court : The SC laid down certain
guidelines so as to prevent the misuse of A356 of the constitution.
The majority enjoyed by the Council of Ministers shall be tested on
the floor of the House.
Centre should give a warning to the state and a time period of one
week to reply.
The court cannot question the advice tendered by the CoMs to the
President but it can question the material behind the satisfaction of
the President. Hence, Judicial Review will involve three questions
only:

a. Is there any material behind the proclamation

b. Is the material relevant.

c. Was there any mala fide use of power.

If there is improper use of A356 then the court will provide remedy.
Under Article 356(3) it is the limitation on the powers of the
President. Hence, the president shall not take any irreversible
action until the proclamation is approved by the Parliament i.e. he
shall not dissolve the assembly.

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A356 is justified only when there is a breakdown of constitutional
machinery and not administrative machinery
A356 shall be used sparingly by the centre, otherwise it is likely to
destroy the constitutional structure between the centre and the
states. Even Dr. Ambedkar envisaged it to remain a 'dead letter' in
the constitution.
Implications and Criticism :
This case in the history of the Indian Constitution has great
implications on Centre-State Relations. It is in this case that the
Supreme Court boldly marked out the paradigm and limitations
within which Article 356 has to function. The Supreme Court said
that Article 356 is an extreme power and is to be used as a last
resort in cases where it is manifest that there is an impasse and the
constitutional machinery in a State has collapsed. The views
expressed by the court in this case are similar to the concern
showed by the Sarkaria Commission.
The principles laid down in this case put a bar on the dismissal of
the state government by the centre for political gains.
It was in this case that the court firmly laid down certain provision
relating to Presidential proclamation issued Under Article 356.
The Court held that Presidential proclamation under Article 356 is
not absolute and the power conferred by Article 356 on president is
conditioned power.
The Supreme Court held that presidential proclamation is not
immune from judicial review.
Moreover, if the presidential proclamation is held unconstitutional,
the legislature dissolved by the presidential proclamation can be
revived.
The court rejected this contention that Articles 74(2) bars the court
from inquiring about the material on the basis of which the
proclamation is issued.
Conclusion :
In spite of such bold and illustrious judgement delivered by the
Supreme Court, people criticized that the Court took such a long
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time to deliver the verdict and allowed, the illegality to be
perpetuated and ultimately deprive the citizens of those states to
be governed by their chosen representative.
It was also criticized that the concept of secularism had been
misinterpreted only regard to Hindu fundamentalism.
Still, the judgement delivered by the Supreme Court put a check on
arbitrary dismissal of state governments in future and strengthen
the federal structure of Indian polity which had hitherto been
damaged on several occasions particularly when different political
parties were in power at the Centre and the State.
Go To Module-3 QUESTIONS.

Module-4) Miscellaneous :
4..1)Article 31-B & Schedule IX, Doctrine of Pleasure,
Constitutional safeguards to Civil Servants, Attorney General,
Advocate General, Chief Election Commissioner and Election
Commission, Official Language

4..2)Freedom of Trade, Commerce and Intercourse


4..3)Special provisions relating to Jammu and Kashmir
4..4)Relations between Union and State : Legislative,
Administrative and Financial, Schedule VII

4..5)Consolidated funds, Contingency Funds, CAG, Public Service


Commission
Module-4 QUESTIONS :

Q : 2012 : Explain : Significance of Ninth Schedule and importance of Art31B.

Q : 2013 : Explain : Doctrine of pleasure.


Q : 2013 : Explain : Attorney general
Q : 2012, 4 : Explain : Advocate General for the state.
Q : 2013 : Explain : Chief Election Commissioner.
Q : 2012, 5 : Explain : Election commission.

Q : 2012 : Explain : State official language and languages.


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Q : 2012, 4, 5 : Explain : provisions relating to inter-state trade and
commerce under the constitution.

Q : 2013 : Explain : Special provisions relating to Jammu and Kashmir.


Q : 2012, 4, 5 : Explain : relations between state and union - - administrative, legislative and financial.
Q : Explain : Centre-State Relations: Division Of Powers Between The
Union And The State Governments
Q : 2014 : Explain : Union list, state list and concurrent list (schedule
VII)

Q : 2013 : Explain : Consolidated funds.


Q : 2012, 3, 4 : Explain : Comptroller and auditor general of india.
Q : 2012, 3, 5 : Explain : Public service commission.
Go To CONTENTS.
Module-4 ANSWERS :
Q : 2012 : Explain : Significance of Ninth Schedule and importance of Art31B.
Ans :
http://www.yourarticlelibrary.com/essay/judicial-review-and-the-ninthschedule-of-the-indian-constitution/24982/
http://www.legalservicesindia.com/article/article/emergence-of-article31-a-b-and-c-and-its-validity-1435-1.html
Background : Constitution of India as adopted in 1950, had "Right to
Property" as a fundamental right. This coupled with Art-13 made it
impossible for Nehru Government to pursue its socialist agenda by
acquiring land from zamindars and redistribute the same to landless
poors. Hence Art-31B and Schedule-IX were added through
Constitutional (first) amendment Act 1951.
Legal challenge : Judicial review to pursuit of acquisition of zamindar
lands :
Judicial review is the doctrine in democratic theory under which
legislative and executive action is subject to invalidation by the

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judiciary. The provision of judicial review has been adopted in the
Indian constitution from the constitution of the United States of
America.
In the Indian constitution, Judicial Review of legislative power is dealt
with, under Article 13. Judicial Review implies that the Constitution is
the supreme power of the nation and all laws are under its supremacy.
Art-13 :Laws inconsistent with or in derogation of the fundamental rights
:
(1) All laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are inconsistent
with the provisions of this Part, shall, to the extent of such
inconsistency, be void.
(2) The State shall not make any law which takes away or abridges
the rights conferred by this Part and any law made in contravention of
this clause shall, to the extent of the contravention, be void.
Art-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 provisions thereof shall be deemed to be void,
or ever 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.
Art-31B addressed judicial decisions and pronouncements especially
about the chapter on fundamental rights. Nehru was also very clear on
the purpose behind the first amendment. The state wanted to pursue
nationalization, take away lands from the zamindars, re-distribute them,
and make special provisions for the socially and economically backward.
Despite having architected the Constitution, Nehru was not confident
that the laws made to pursue these special interests of the state would
stand up to judicial scrutiny on account of being discriminatory.

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The First Amendment that brought in Articles 31A and 31B conferring
upon the state the right to make laws to acquire private property and to
deem such laws as not being discriminatory and to further protect all
such laws from any judicial review by creating something called the
Ninth Schedule.

Use and abuse of Ninth Schedule : Since the First Amendment, the Ninth
Schedule has been relied upon to amend the constitution multiple times
over.
The 4th amendment inserted six acts to the 9th schedule.
The 17th amendment added 44 more acts. The 29th amendment
brought in 2 acts from Kerala.
The 34th amendment in 1974 added 20 more land tenure and land
reforms laws enacted by the states.
In 1975, Indira Gandhis infamous abuse of executive power leading
up to emergency saw the 39th amendment adding certain central
enactments.
1976 saw the 40th amendment even more to the 9th schedule.
The 47th amendment in 1984 added more,
in 1990 the 66th amendment gave more protection to land ceiling
acts.
The 76th amendment to accommodate Tamil Nadu Governments
legislation to provide for reservations to the level of 69 percent for
SC/ST and OBCs followed.
Extreme abuse of Ninth Schedule :
What takes the cake however is the 78th amendment, which was
about not just immunity to laws in 9th schedule, which was suspect,
but amendments to those laws and making those amendments
immune.
Since then there were absurd laws from Sugarcane supporting price to
the New Delhi Urban Zoning Laws all clamoring for an exalted spot in
the much abused Ninth Schedule.
The Supreme Court Judgment and the Ninth Schedule :
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In a landmark ruling on 11 January 2007, the Supreme Court of India
ruled that all laws (including those in the Ninth Schedule) would be
open to Judicial Review if they violated the basic structure of the
constitution. Chief Justice of India, Yogesh Kumar Sabharwal noted, If
laws put in the Ninth Schedule abridge or abrogate fundamental rights
resulting in violation of the basic structure of the constitution, such
laws need to be invalidated.
The Supreme Court judgment laid that the laws placed under Ninth
Schedule after April 24, 1973 shall be open to challenge in court if
they violated fundamental rights guaranteed under Article 14, 19, 20
and 21 of the Constitution.
Impact of the Judgment:
The Judgment ended up the controversy behind the Ninth Schedule
largely and was successful to put a bar on political intentions of
keeping certain sensitive issues out of the reach of Judicial Review for
narrow political gains. The landmark judgment was successful in
strengthening the democratic base of the society and bringing into the
realm of justice, unfair acts of misuse of the provision of the ninth
schedule in the Constitution
Go To Module-4 QUESTIONS.
Q : 2013 : Explain : Doctrine of pleasure.
Ans :
http://www.shareyouressays.com/115275/short-speech-on-the-doctrineof-pleasure
Art-310 : Tenure of office of persons serving the Union or a State :
(1) Except as expressly provided by this Constitution, every person
who is a member of a defence service or of a civil service of the
Union or of an all-India service or holds any post connected with
defence or any civil post under the Union holds office during the
pleasure of the President, and every person who is a member of a
civil service of a State or holds any civil post under a State holds
office during the pleasure of the Governor 3*** of the State.

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Clause (1) of Article 310, lays down that defense personnels and civil
servants of the Union and the members of All India Service, hold office
during the pleasure of the President.
Similarly, civil servants in a State, hold office during the pleasure of the
Governor. This is general rule which operates except as expressly
provided by this Constitution.
Exceptions : However, The Supreme Court Judges, Attorney General of
India, the High Court Judges, members of Public Service Commission
and the Chief Election Commissioner, have been expressly excluded from
the rule of Doctrine of Pleasure.
Can civil servent sue Government ?
A rule emanating out of the doctrine of pleasure in England, is that NO
servant of the Crown can maintain an action against the Crown for any
arrears of salary. This rule, however, does not operate in India, as has
been held by the Supreme Court in a number of cases.
In State of Bihar v. Abdul Majid, AIR 1954 S.C. 245, it has been held
that a civil servant in India could always sue the government for
arrears of salary. This rule was reiterated in Om Prakash v. State of
U.P., AIR 1955 S.C. 600, where it was held that when the dismissal of
a civil servant was unlawful, he was entitled to his salary from the
date of dismissal to the date when his dismissal was declared
unlawful.
Conditions of service :
Opening words of Article 309 subject to the provisions of this
Constitution, makes it clear that the conditions of service whether laid
down by the legislature or prescribed by the rules, must conform to
the mandatory provisions of the Constitution as laid down in Articles
310, 311 and 320 or in
These rules should also satisfy such conditions as equal pay for equal
work under Article 39 (d). However, the doctrine of pleasure may be
invoked by the government in public interest after a public servant has
attained the age of 50 years or has completed 25 years service.

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This is constitutionally permissible under F.R. 56. The power to frame
rules under Article 309 includes the power to amend or alter the rules
with retrospective effect subject to the principle that the benefits
acquired under the existing rules cannot be taken away by an
amendment with retrospective effect. This view has been expressed
by the Supreme Court in T.K. Kapur v. State of Haryana, 1986 Supp.
S.C.C. 584.
Restrictions on the Doctrine of Pleasure : Following limitations have been
laid down on the exercise of doctrine of pleasure :
(1) According to Article 310 (2), when a person (not being a civil
servant or a member of defense forces) is appointed to a civil post on
contract for a fixed term, the contract may provide for the payment of
compensation to him, if the post is abolished for reasons not
connected with misconduct on his part.
(2) According to Article 311 (1), no civil servant of the Centre or a
State shall be dismissed or removed by an authority subordinate to
that by which he was appointed.
(3) According to Article 311 (2), no civil servant shall be dismissed or
removed or reduced in rank until he has been given a reasonable
opportunity of showing cause against the action proposed to be taken
in regard to him.
(4) There is strong judicial authority for the view that rule of the
doctrine of pleasure under Article 310 cannot be exercised in a
discriminatory manner and is controlled by Fundamental Rights
contained in Articles 14. 15 and 16 of the Constitution.
(5) Under Article 320 (3) (c), the Union or State Public Service
Commission is to be consulted on all disciplinary matters affecting a
person serving under the Government of India or of a State, as the
case may be, in civil capacity.
Go To Module-4 QUESTIONS.
Q : 2013 : Explain : Attorney general
Ans :
pg-124 jhabvala
https://en.wikipedia.org/wiki/Attorney_General_of_India
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https://en.wikipedia.org/wiki/Solicitor_General_of_India

Go To Module-4 QUESTIONS.
Q : 2012, 4 : Explain : Advocate General for the state.
Ans :
pg-173 jhabvala

Go To Module-4 QUESTIONS.
Q : 2013 : Explain : Chief Election Commissioner.
Q : 2012, 5 : Explain : Election commission.
Ans :
read pg-246-249 of Jhabvala

Go To Module-4 QUESTIONS.
Q : 2012 : Explain : State official language and languages.
Ans :
read pg-253-255 of Jhabvala

Go To Module-4 QUESTIONS.
Q : 2012, 4, 5 : Explain : provisions relating to inter-state trade and
commerce under the constitution.
Ans :
http://www.preservearticles.com/2011111216907/short-essay-on-interstate-trade-and-commerce-india.html
Intro : Part XIII (Art-301-307) of Constitution of India provides for
freedom of trade and commerce and intercourse within the territory of
India. Is this freedom absolute or are there any restrictions?

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Historical background :
American experience : According to some writers, it is the Commerce
clause of the American Constitution which made the United States one
united nation. For, under the Commerce clause, the national
government of the United States assumed enormous powers of
regulating a wide variety of activities of the citizens and of the
constituent States.
But the process has involved an unending legal conflict which is still
raging between the Union and the State even after two centuries of
the working of the Constitution.
Australian experiance : In Australia too, the situation is not happy
owing to the omnibus character of the right to inter-State trade and
commerce that is embodied in the Constitution.
Thus the framers of the Indian Constitution had the benefit of these
experiences at the time of drafting the provisions dealing with inter-State
trade and commerce as embodied in the Constitution.
Objectives :
From the very beginning of its deliberations, the Constituent Assembly
was keen to ensure the freedom of inter-State trade and commerce
through out the Union. In fact, one of the primary purposes of federal
Union itself is the establishment of freedom of commerce.
This is why Articles 301 to 307 form a well-though-out scheme and, in
the opinion of one of the members of the Drafting Committee, "are
about as nearly perfect as human ingenuity could possibly make
them."
The objective behind the principle of freedom of inter-State commerce
is that within the country trade and commerce should develop to the
largest possible extent and it should not be hindered by artificial
barriers and restrictions imposed by the various States of the
federation.
Accordingly, the Constitution has taken into account the largest interests
of India as a whole as well as the interests of particular States and the

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wide geography of this country in which the interests of one region differ
from those of another.
Art-301 : Freedom of trade, commerce and intercourse : Subject to the
other provisions of this Part, trade, commerce and intercourse
throughout the territory of India shall be free.
Speaking on issue Ambedkar said: "I should also like to say that
according to the provisions contained in this part, it is not the intention
to make trade and commerce absolutely free, that is to say, deprive both
Parliament and States of any power to depart from the fundamental
provision that trade and commerce shall be free. The freedom of trade
and commerce is subject to certain limitations which may be imposed by
Parliament or by the Legislatures of the various States, subject to the
fact that the limitations contained in the power of Parliament is confined
to cases arising from scarcity of goods in one part of the territory of
India, and in the case of the States it must be justified on the ground of
public interest."
Restrictions : Article 301 is general in scope and enacts that "subject to
the other provisions of this Part, trade, commerce and intercourse
throughout the territory of India shall be free". After having stated the
general nature of the freedom of trade and commerce, the Constitution
details the limitations to this freedom. There are five such limitations :
(Art. 302) Parliament may impose restrictions in any part of the territory
of India in the public interest. The purpose of this provision is to allow
the Government of India to restrict the movement of goods so as to
safeguard a well-balanced economy and the proper organisation and
ordering of supplies of goods and services.
Famine may be raging in one part of the country while there is plenty
in another part, as has been the experience of the country in regard to
food during the last several decades.
If Parliament has no effective powers to check such abnormal
situations, freedom of trade and commerce, instead of a blessing, will
become a menace to the freedom of life itself.
(Art. 303) Although Parliament is empowered to restrict the free
movement or articles of trade and commerce, normally the laws passed
by Parliament in this context ought to be non-discriminatory in character.
In other words, it should not prefer one State to another. But when any

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part of the country is suffering from scarcity of goods, Parliament may,
meet such a situation; pass even a discriminatory law.
(Art. 304) A State Legislature may impose on goods imported from other
States any tax if similar goods produced in that State also are taxed in a
like manner. A State Legislature is also authorised to impose reasonable
restrictions on the freedom of trade and commerce with or within that
State as may be required in the public interest .
Here is a certain amount of discretion given to the States to regulate
Inter-State trade and commerce under exceptional conditions. But this
is subject to Central control. According to this, any Bill who seeks to
introduce such restrictions can be introduced in the State Legislative
only with the previous sanction of the President.
The purpose of the provision is obvious. If on account of parochial
patriotism or provincialism and in disregard of the larger interests of
India as a whole, a new Bill or an amending Bill to modify an existing
law is introduced in a State Legislature, it will be open to the President
to withhold sanction.
The President will have the opportunity to see that the legislation is in
the public interest and the restriction imposed is reasonable.
(Art. 305) Tax laws existing at the time of the inauguration of the
Constitution were safeguarded even if they violated the freedom of interState trade and commerce and the power of Parliament to regulate it.
At the same time, the President was empowered to make any changes
to those laws as he thought fit. This Article in its present form was
added by the Fourth Amendment of the Constitution, 1955, and it
saves also all laws providing for State monopolies which were passed
before the coming into effect of the Fourth Amendment.
The fact that every restriction should be reasonable in relation to its
objective leaves the Supreme Court with adequate power to examine
and adjudicate upon the reasonableness of such restrictions and
declare those that are unreasonable in its view invalid.
(Art. 307) Parliament is empowered to appoint such authority as it
considers appropriate for carrying out the purposes of Articles 301 to
304 and to confer on that authority such powers and duties as it thinks
necessary.

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Speaking on this provision, Ambedkar said, "(It) is merely an article
which would enable Parliament to establish an authority such as the
Inter-State Commission as it exists in the U.S.A.
Without specifically mentioning any such authority it is thought
desirable to leave the matter in a fluid state so as to leave Parliament
freedom to establish any kind of authority that it may think fit."
Australia too has such an Inter-State Commission which renders
valuable service in the field of inter-State trade and commerce.
Inter-relation between Articles 301 and 19(1)(g) : Article 19(1)(g), a
fundamental right, confers on the citizens the right to practice any
profession or carry on any occupation, trade or business. The question of
inter-relationship between Articles 19(1)(g) and 301 is somewhat
uncertain.
Art. 19(1)(g) can be taken advantage of by a citizen, while Art. 301
can be invoked by a citizen as well as a non-citizen. Also, while Art.
19(1)(g) is not available to a corporate person, Art.301 may be
invoked by a corporation and even by a state on complaints of
discrimination or preference which are outlawed by Art. 303.
Conclusion : The object of part XIII is not to make inter-state trade,
commerce and intercourse absolutely free. Reasonable restrictions in
public interest are permissible. Regulatory or compensatory measures
cannot be regarded as violative of the freedom unless they are shown to
be colorable measures to restrict the free flow of trade, commerce and
intercourse. Therefore Article 304 allows imposition of such reasonable
restrictions on the freedom of trade as are in public interest.
Go To Module-4 QUESTIONS.
Q : 2013 : Explain : Special provisions relating to Jammu and Kashmir.
Ans :
http://www.yourarticlelibrary.com/essay/special-provisions-for-jammuand-kashmir-provided-in-the-constitution-of-india/24907/
Intro :

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Part XXI of our constitution is Temporary, Transitional and Special
Provisions. Among them Article 370 deals with the State of Jammu &
Kashmir which forms a part of the territory of India as defined in
Article 1 of the Constitution. J&K is the fifteenth State included in the
First Schedule of the Constitution.
However, all the provisions of the Constitution of India relating to the
States in the First Schedule are not applicable to Jammu & Kashmir.
J&K is the only State which has its own Constitution.

Article 370 Regarding Jammu and Kashmir :


No law passed by the Parliament regarding the state of Jammu and
Kashmir can be applied to the state without the Order of President of
India in concurrence of the State government.
No such conditions exist in the case of other states. In the original
Constitution of Jammu and Kashmir, the provisions of Article 370 were
described as temporary measures. Under the agreement of 1975
signed between Sheikh Abdullah and Indira Gandhi it was agreed upon
that Abdullah will give up the demand for plebiscite and special status
of Jammu and Kashmir will continue; it would no longer remain a
temporary measure.
But the agreement could not be implemented owing to the differences
and the Order of the President could not be issued.
Jammu and Kashmir is the only state in the country having a
Constitution of its own within the framework of India Union.
The important provisions of the Constitution of Jammu and Kashmir can
be summarized as follows :
(i) Territory of Jammu and Kashmir consists of all those areas which
were under the sovereignty of erstwhile ruler. These areas include that
territory which is at present under the occupation of Pakistan.
(ii) Out of 123 assembly seats of Jammu and Kashmir, 25 allotted to
the Pakistan occupied portion of Kashmir, remain vacant because the
situation is unsuitable for the election there;
(iii) Though the executive and legislative powers of the State
government cover the entire state, yet these powers do not apply to
those areas which come under the jurisdiction of Parliament;
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(iv) The permanent residents of Jammu and Kashmir enjoys all
rights which are guaranteed in the Constitution of the Country.
(v) A majority of not less than two-thirds of the members of the house
can amend the Constitution by passing a bill. But the bill cannot make
the changes in provisions relating to the relationship between the
state and the Union.
-----> Special Relationship of J&K with the Indian Union :
(i) J&K has its own Constitution framed by a special Constituent
Assembly set up by the State.
(ii) Parliament cannot make any law without the consent of the State
Legislature relating to:
(a) Alteration of name and territories of the State.
(b) International treaty/agreement affecting the disposition of any
part of the territory of the State.
(iii) The residuary power in respect of J&K rests with the State
Government and not with the Union Government.
(iv) The Fifth Schedule pertaining to the administration and control of
Scheduled Areas and Scheduled Tribes and the Sixth Schedule
pertaining to the administration of Tribal Areas are not applicable to
the State of J&K.
(v) The provisions of the Indian Constitution regarding denial of
citizenship to person who migrated to Pakistan do not apply to
Permanent residents of J&K who after having migrated to the territory,
now included in Pakistan, return to the territory of that State or
permanent return issue by or under the authority of any law made by
the Legislature of that State and even such person shall be deemed to
be a citizen of India.
(vi) Certain special rights have been granted to the permanent
residents of the State of J&K with regard to employment under the
State; acquisition of immovable property in the State; settlement of
the State etc.
(vii) No proclamation of emergency made by the President under
Article 352 on the ground of armed rebellion shall have effect on the
State of J&K without the State Governments concurrence.

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(viii) The Union has no power to suspend the Constitution of the State
on the ground of failure to comply with the direction given by the
Union. In the event of the breakdown of the Constitutional machinery
in the State, Governors Rule is to be imposed. However, in 1964,
Articles 356 arid 357 was extended to that State in the event of a
breakdown of Constitutional machinery to take over the administration
of that State.
The Parliament was also provided the power to legislate for the
State during emergency under Article 356. The first occasion when
Presidents Rule under Article 356 was imposed in J&K was in 1986
to follow Governors Rule.
The Union has no power to make a proclamation of financial emergency in the State.
(ix) The provisions of Part IV relating to the Directive Principle of State
Policy do not apply to J&K.
(x) No amendment of the Constitution of India can extend to J&K
unless it is so extended by the order of the President under Article 370
(1).
(xi) The High Court of J&K enjoys very limited powers. It cannot
declare any law unconstitutional or issue writs, except for the
enforcement of the Fundamental Right.
Note : By amendments of the Constitutional order, the jurisdiction of the
Comptroller & Auditor- General, Election Commission and the special
leave jurisdiction of the Supreme Court have been extended to the State
of J&K.

Present Position :
Jurisdiction of Parliament :
It is confined to the matters enumerated in the Union List, and
limited part of the Concurrent List. While it shall have no jurisdiction
as regards most of the matters enumerated in the Concurrent List.
While in relation to the other States, the residuary power of
legislation belongs to Parliament, in the case of Jammu and
Kashmir, the residuary power shall belong to the Legislature of that
State, excepting certain matters, specified in 1969, for which
Parliament shall have exclusive power.

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The power to legislate with respect to preventive detention in
Jammu and Kashmir belongs to the Legislature of the State instead
of Parliament so that no law of preventive detention made by
Parliament will extend to that State.
By the Constitution (Application to Jammu and Kashmir) Order,
1986, however, Art. 249 has been extended to the State of Jammu
& Kashmir, so that it would now be competent to extend the
jurisdiction of Parliament to that State, in the national interest (e.g.,
for the protection of the borders of the State from aggression from
Pakistan or China), by passing a resolution in the Council of States.
Autonomy of the State in Certain Matters:
The plenary power of the Indian Parliament is also curbed in certain
other matters, with respect to which Parliament cannot make any
law without the consent of the Legislature of the State of Jammu
and Kashmir, where that State is to be affected by such legislation,
e.g., (i) alteration of the name of territories of the State (Art. 3).
(ii) International treaty or agreement affecting the disposition of
any part of the territory of the State (Art. 253).
Similar fetters have been imposed upon the executive power of the
Union to safeguard the autonomy of the State of Jammu and
Kashmir, a privilege which is not enjoyed by the other States of the
Union, thus,
(i) No Proclamation of Emergency made by the President under
Art. 352 on the ground of internal disturbance shall have effect in
the State of Jammu & Kashmir, without the concurrence of the
Government of the State,
(ii) Similarly, no decision affecting the disposition of the State
can be made by the Government of India, without the consent of
the Government of the State,
(iii) The Union shall have no power to suspend the Constitution of
the State on the ground of failure to comply with the directions
given by the Union under Art. 365. In the event of a breakdown
of the constitutional machinery as provided by the State
Constitution, it is the Governor who shall have the power, with
the concurrence of the President, to assume to himself all or any
of the functions of the Government of the State, except those of
the High Court,

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(iv) The Union shall have no power to make a Proclamation of
Financial Emergency with respect to the State of Jammu and
Kashmir under Art. 360
(v) Articles 356-357 relating to suspension of constitutional
machinery have been extended to J & K by the Amendment
Order of 1764.
Fundamental Rights and the Directive Principles :
The provisions of Part IV of the Constitution of India relating to the
Directive Principles of State Policy do not apply to the State of
Jammu & Kashmir. The provisions of Art. 19 are subject to special
restrictions for a period of 25 years. Art. 19(1)(f) and 31(2) have
not been omitted, so that the fundamental right to property is still
guaranteed in this State.
Separate Constitution for the State :
While the Constitution for any of the other States of the Union of
India is laid down in part VI of the Constitution of India, the State
of Jammu & Kashmir has its own Constitution (made by a separate
Constituent Assembly and promulgated in 1957).
Procedure for Amendment of State Constitution:
While an Act of Parliament is required for the amendment of any of
the provisions of the Constitution of India the provisions of the
State Constitution of Jammu & Kashmir (excepting those relating to
the relationship of the State with the Union of India) may be
amended by an Act of the Legislative Assembly of the State, passed
by a majority of not less than two-thirds of its membership; but its
such amendment seeks to affect the Governor or the Election
Commission, it shall have no effect unless the law is reserved for
the consideration of the President and receives his assent.
It is also to be noted that no amendment of the Constitution of
India shall extend to Jammu & Kashmir unless it is so extended by
an Order of the President under Art. 370(1).
Alteration of Area Boundary:
No alteration of the area of boundaries of this State can be made by
Parliament without the consent of the Legislature of the State of J &
K.
Other Jurisdictions:

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By amendments of the Constitution Order, the jurisdictions of the
comptroller and Auditor-General, of the Election Commission, and
the Special Leave Jurisdiction of the Supreme Court have been extended to the State of Jammu and Kashmir.
Go To Module-4 QUESTIONS.
Q : 2012, 4, 5 : Explain : relations between state and union - - administrative, legislative and financial.
Q : Explain : Centre-State Relations: Division Of Powers Between The
Union And The State Governments
Q : 2014 : Explain : Union list, state list and concurrent list (schedule
VII)
Ans :
http://www.erewise.com/current-affairs/centre-staterelations_art52f23588ba502.html
http://www.kkhsou.in/main/polscience/indian_federalism.html
http://www.yourarticlelibrary.com/essay/the-relation-between-centreand-state-in-india/24925/
Intro :
Generally, three models are followed in the matter of division of
powers in a federation.
In the first model, the powers of the Centre are defined and the
residuary powers are left to the States. This model is found in
America.
In the second model, the powers of the federating units or States are
defined and the residuary powers are given to the centre. Canada
follows this model, and
In the third model, the powers of both the governments are clearly
laid down. Australia has this model of federation.
In India, we follow the combination of both the Canadian and the
Australian models.

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Division of Powers : The Constitution of India divides powers between
the Union and the State governments. The Seventh Schedule of the
Constitution includes three lists of subjects,
the Union List. The Central or Union Government has exclusive
power to make laws on the subjects which are mentioned in the
Union List.
the State List. The States have the power to make law on the
subjects which are included in the Concurrent List.
the Concurrent List. Both the Central and State governments can
make laws on the subjects mentioned in the Concurrent List.
Extensive and expansive nature of the Union List : It may be noted here
that,
The subjects/ powers which are not mentioned in any of the above
three lists are called residuary powers and the Union government can
make laws on them.
In making laws on the subjects of the Concurrent list, the Central
government has more authority than the State governments. And on
the subjects of the State List also the Central government has indirect
control. All this shows that though the Indian Constitution has clearly
divided powers between the two governments, yet the Central
government has been made stronger than the State governments.
Parliament has power to move any specific item on such a subject
which is on State List, to exclusive control of Parliament / Union List.
Under this provision, is can be observed that Union List is ever
expansive. Some examples follow,
While 'industry' remains on State List of subjects, parliament has
declared some specific industries to be of national importance and
Central Government excercises exclusive control over the same. eg
iron, steel and coal,
while museums, public health, agriculture etc. come under State
subject, certain institutions like the National Library and National
Museum at New Delhi and the Victoria Memorial in Calcutta have been
placed under the jurisdiction of Parliament on the basis of a plea that
they are financed by the Government of India wholly or in part and
declared by a law of Parliament to be institutions of national
importance.
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While 'education' is a State subject, a number of universities have
been declared as Central Universities and placed under the exclusive
jurisdiction of Parliament.
Thus, the Extensive nature of the Union List thus places enormous
powers of legislation even over affairs exclusively under the control of
the States in the hands of Parliament.
With reference to the three lists, we can discuss the division of powers
between the two governments in India under following three headings,
(1) Legislative relations,
(2) Administrative relations, and
(3) Financial relations.

(1) Legislative Relations :


Union list : So far as the legislative relations between the Central
government and the State governments is concerned, the Central
government has been given exclusive power to make law on the
subjects of the Union list.
The union list has 98 subjects of great importance for the country
and uniform in character. So, these subjects are given to the Union
government.
The main subjects of the Union List are: Defence, Foreign Affairs,
Currency and Coinage, War and Peace, Atomic Energy, National
Resources, Railways, Post and Telegraph, Citizenship, Navigation
and Shipping, Foreign Trade, Inter-State Trade and Commerce,
Banking, Insurance, National Highways, Census, Election,
Institutions of higher education and others.
Union list also includes such items dealing with inter-state matters
for sooth function of the affairs. Example : inter-state trade and
commerce regulation, development of inter-state rivers, inter-state
migration, etc.
Expansion of the Legislative Powers of the Union under Different
Circumstances :

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(a) In the National Interest : Parliament shall have the power
to make laws with respect to any matter included in the State
List for a temporary period, if the Council of States declares by
a resolution of 2/ 3 of its members present and voting, that it
is necessary in the national interest.
(b) Under the Proclamation of National or Financial Emergency
: In this circumstance, Parliament shall have similar power to
legislate with respect to State Subjects.
(c) By Agreement between States : If the Legislatures of two
or more States resolve that it shall be lawful for Parliament to
make laws with respect to any matters included in the State
List relating to those States, Parliament shall have such power.
It shall also be open to any other State to adopt such Union
legislation in relation to itself by a resolution passed on behalf
of the State legislature. In short, this is an extension of the
jurisdiction of the Union Parliament by consent of the
Legislatures.
(d) To implement treaties : Parliament shall have the power to
legislate with respect to any subject for the purpose of
implementing treaties or international agreements and
conventions.
(e) Under a Proclamation of Failure of Constitutional Machinery
in the States : When such a Proclamation is made by the
President, the President may declare that the powers of the
Legislature of the State shall be exercisable by or under the
authority of Parliament.
State List : The State governments can make laws on the subjects
mentioned in the State list.
The State list has 66 subjects local importance and may vary from
State to State are included in the State list.
The main subjects of the State List are : law-and-order, police,
state court fees, prisons, local government, public health and
sanitation, hospitals and dispensaries, pilgrimages within India,
intoxicating liquors, relief of disabled and unemployable, libraries,
communications, agriculture, animal husbandry, water supply,

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irrigation and canals, fisheries, road passenger tax and goods tax,
capitation tax and others.
NB : Though the State governments have power to make laws on
the subjects of the State list, yet the Central government, on
certain occasions, can also make laws on these subjects. For
example, during the period of emergency, the Parliament makes
laws on State subjects.
Concurrent list : The Concurrent list has 52 subjects.
On these subjects both the central and the state governments can
make laws.
These subjects are of great importance but may require local
variations, hence they are included in the Concurrent list.
In respect of Concurrent list also, though both the governments can
make laws on the subjects included in the list, yet the laws made by
the Central government will prevail over the State laws in case of a
conflict between the two.
The main subjects listed in this list are : economic planning, social
security, electricity, criminal law, criminal procedure, preventive
detention for reasons concerned with the security of state, marriage
and divorce, transfer of property other than agricultural land,
contract, actionable wrongs, bankruptcy and insolvency, trust and
trustees, administration of justice, evidence and oaths, civil
procedure, contempt of court, lunacy, prevention of cruelty to
animals, forests, protection of wild animals and birds, population
control and family planning, trade unions, education, labour
welfare, inland shipping and navigation, food stuffs, price control,
stamp duties, and others.
Residuary Powers : In case of residuary powers, the Union
government has exclusive power to make laws. The States have
nothing to do in this regard.
Art-248 :
The Union Parliament has exclusive power to make any law with
respect to any matter not enumerated in the Concurrent List or
the State List.

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Such power shall include the power of making any law and
imposing a tax not mentioned in either of these lists.
Thus, the Constitution of India creates a clear-cut division of
legislative powers between the Union and the States. And, that in
legislative matters, the Union Parliament is very powerful. It has not
only exclusive contral over the Union list and the residuary powers,
but it has also dominance over the Concurrent list and the State list.
Exception :
The Parliament can make a law on State subjects also, provided the
Rajya Sabha passes a resolution by a 2/3 majority that such a law
is necessary for national interest.
Sometimes the Governor of a state can reserve certain bills passed
by the state legislature for the consideration of President.
(2) Administrative Relations :
As in legislative matters, in administrative matters also, the Central
government has been made more powerful than the States. Following
are major points on the subject :
The Constitution has made it clear that the State governments cannot
go against the Central government in administrative matters. The
State governments have to work under the supervision and control of
the Central government.
The States should exercise its executive powers in accordance with
the laws made by the Parliament.
The Central government can make laws for maintaining good relations
between the Centre and the States.
Art-256 : The Central government can control the State governments
by directing them to take necessary steps for proper running of
administration. If the State fails to work properly or according to the
Constitution, it can impose Presidents rule there under Article 356
and take over its (the States) administration.
Art-257 : Article 257 of the Constitution lays down that the executive
authority of every State shall be exercised in such a way that it does

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not impede or prejudice the exercise of the executive power of the
Union.
Indirect control of Central Government : There are some functionaries
of the Union government who serve the State governments.
The Governor of a State is appointed by the President who often acts
as a central agent in the State. The Chief Justice and
The Judges of a High Court are also appointed by the President and
the President can also remove them if a resolution is passed by the
Parliament in this regard.
The officers of the All India Services are appointed by the Central
government but they serve in different States.
(3) Financial Relations :
To run the administration properly, both the Central and the State
governments need adequate sources of income. The income of the
government comes mainly from various taxes imposed by it. In
financial relations between the two governments, we will discuss how
the sources of income are adjusted between the to governments.
There are certain taxes like land revenue, tax on agricultural income,
estate duty, etc., which are levied and collected by the States. They
are the sources of State revenue in to its Consolidated Fund.
Some taxes are there like stamp duty, income tax, excise, etc. which
are levied by the Union, and which are source (partly) of revenue in to
Consolidated Fund of State, and source (partly) source of revenue in
to Consolidated Fund of Union.
There are some other taxes which are the sources of income of the
Union government alone. Example, revenue earned from railways,
posts and telegraphs, wireless, broadcasting, etc.
Thus, in financial matters also, the central government is more
powerful than the States. The President of India has the power to
make alterations in the distribution of revenues earned from incometax between the centre and the States.
The Centre also has the power to grant loans and grant-in-aid to the
State governments.

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The Finance Commission of India which is the central agency also has
influence over the State finances.
Discussion on Center-State Relations (this text is also relevant to
discussion on quasi-federal nature of indian constitution) : States of
India, before the formation of the federation, were not sovereign
entities. As such, there was no need for safeguards to protect States.
On account of the exigencies of the situation, the Indian federation has
acquired characteristics which are quite different from the American
model.
(i) The residuary powers under the Indian Constitution are assigned to
the Union and not to the States. However, it may be noted that the
Canadian Constitution does the same mode of distributing the powers
cannot be considered as eroding the federal nature of the
Constitution.
(ii) Though there is a division of powers between the Union and the
States, the Indian Constitution provides the Union with power to
exercise control over the legislation as well as the administration of
the States. Legislation by a State can be disallowed by the President,
when reserved by the Governor for his consideration.
The Governor is appointed by the President of the Union and holds
office during his pleasure. Again these ideas are found in the
Canadian Constitution though not in the Constitution of the U.S.A.
(iii) The Constitution of India lays down the Constitution of the Union
as well as the States, and no State, except Jammu and Kashmir, has a
right to determine its own (State) Constitution.
(iv) When considering the amendment of the Constitution we find that
except in a few specific matters affecting the federal structure, the
States need not even be consulted in the matter of amendment of the
Constitution. The bulk of the Constitution can be amended by a Bill in
the Union Parliament being passed by a special majority.
(v) In the case of the Indian Constitution, while the Union is
indestructible, the States are not. It is possible for the Union
Parliament to reorganize the States or to alter their boundaries by a
simple majority in the ordinary process of legislation.
The consent of the State Legislature concerned is not required; the
President has only to ascertain the views of the Legislatures of the
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affected States. The ease with which the federal organization may be
reshaped by an ordinary legislation by the Union Parliament has been
demonstrated by the enactment of the States Reorganization Act,
1956. A large number of new States have, since, been formed.
(vi) Under the Indian Constitution, there is no equality of
representation of the States in the Council of States. Hence, the
federal safeguard against the interests of the lesser States being
overridden by the interests of the larger or more populated States is
absent under our Constitution. Its federal nature is further affected by
having a nominated element of twelve members against 238 representatives of the States and Union Territories
Go To Module-4 QUESTIONS.
Q : Explain : Consolidated funds and Contingency funds :
Q : 2013 : Explain : Consolidated funds.
Ans :
http://www.preservearticles.com/2012032528858/what-are-theconsolidated-and-contingency-funds-of-india.html
Consolidated funds :
Intro :
A consolidated fund or the consolidated revenue fund is the term
used for the main bank account of the government in many of the
countries in the British Commonwealth of Nations.
Union as well as each of the states have such a fund wherein ALL
the resources of the Union are to be placed. Likewise, all resourcs
of states are to be placed in respective Consolidated Fund of that
state.
Article-266 (Consolidated Funds and public accounts of India and of
the States) of the Constitution of India makes a provision to create.
The Indian government and each of the state governments maintain
their own consolidated funds.
Custody of Consolidated Funds : Art-283, 283 deal with the custody of
public money, funds, etc. The custody of consolidated fund,

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contingency fund and money credited to the public accounts shall be
regulated by rules made by the President / Governor of the state, as
the case may be. Also the custody of suitor's deposits, and other
money received by public servents and courts shall be with the public
account of India or a state as the case may be.
Article 266 of the Constitution of India requires that,
revenues received by the Government of India to be paid to the
Consolidated Fund of India, and
state revenues to be paid to a respective state consolidated fund.

The Comptroller and Auditor General of India audits these funds and
reports to the relevant legislatures on their management.
The consolidated fund of India is made-up of the money received by
the Government of India from,
i. Revenues (direct and indirect taxes);
ii. Issue of treasury bills (loans taken by government of India);
iii. Repayment of loans and advances made by it (Whenever
someone returns principle/interest of the loans given by
Government of India).
The part of state from taxes and duties are paid to them before
depositing the revenue in this fund.
Money can be appropriated from this fund only in accordance with law
and for only those purposes which are provided in the constitution.
Every year, finance minister must put following three files on the table
of parliament:
Appropriation bill: to get permission of parliament, to take out cash
from Consolidated fund of India. Art 266.
Finance Bill: to get permission of parliament to collect taxes from
Juntaa. Art 265.
Annual financial statement: to show the parliament data about his
incoming and outgoing money. Art 112

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Contingency funds :
Intro :
Necessity of contingency fund arises on account of the fact that,
under the constitution, every item of expenditure requires the prior
sanction of the parliament or the state legislature, as the case may
be. However, sometimes an unexpected demand has to be met and
there may not be any time to get the requisite sanction.
Art-267 provides that :
the parliament may by law establish a contingency fund in the
nature of an imprest to be entitled Contingency Fund of India, in
to which is paid , from time to time such sums as may be
determined by law. This fund is placed at the disposal of the
President to enable advances to be made by him out of such funds
for the purpose of meeting unforeseen expenditure, pending
authorization of such expenditure by parliament.
The same Art-267, also provides for the creation of Contingency
Funds of the state by respective state legislatures. Contingency
Funds of states are at disposal of respective state Governors.
Custody of Contingency Funds : Art-283, 283 deal with the custody of
public money, funds, etc. The custody of consolidated fund,
contingency fund and money credited to the public accounts shall be
regulated by rules made by the President / Governor of the state, as
the case may be. Also the custody of suitor's deposits, and other
money received by public servents and courts shall be with the public
account of India or a state as the case may be.
Contingency funds are placed at the disposal of the president of India,
or Governor of the state, as the case may be. He may make advances
out of this fund. It is to be used for the purpose of meeting
unforeseen expenditures.
Constitution also requires that expenditure from Contingency funds
require authorization of Parliament or state legislature as the case
may be.

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Go To Module-4 QUESTIONS.
Q : 2012, 3, 4 : Explain : Comptroller and auditor general of india.
Ans :
http://byjus.com/free-ias-prep/the-comptroller-and-auditor-general-ofindia
https://en.wikipedia.org/wiki/Comptroller_and_Auditor_General_of_India
#Scope_of_audits
Intro : Comptroller and Auditor General (CAG) is the guardian or caretaker of the national purse.
Articles 148 to 151 of the Indian constitution creates and regulates
the office of Comptroller and Auditor General of India.
The role, function and duties of the CAG are elaborated by CAG
(Duties Powers and Conditions of service) Act 1971,
Appointment and removal :
CAG is appointed by the President of India by a warrant under his
hand and seal. The CAG holds office for a term of six years from the
date he assumes office or until he attains the age of 65 years,
whichever is earlier. The CAG, before taking over his office, makes and
subscribes before the president an oath or affirmation.
CAG can resign any time from his office by addressing the resignation
letter to the president.
He can be removed from office only by an order of the President,
passed after an address by each House of Parliament supported by a
majority of the total membership of the House and by a majority of
not less than two-thirds of the members of the House present and
voting on the ground of proved misbehaviour or incapacity. His salary
and service conditions cannot be varied to his disadvantage after he is
appointed.
A CAG shall not be eligible for further office under the Government of
India or of any state, after he leaves office.
Vision, Mission And Values of CAG as published on its website :

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VISION : The vision of SAI India represents what we aspire to
become: We strive to be a global leader and initiator of national and
international best practices in public sector auditing and accounting
and recognised for independent, credible, balanced and timely
reporting on public finance and governance.
MISSION : Our mission enunciates our current role and describes
what we are doing today: Mandated by the Constitution of India, we
promote accountability, transparency and good governance through
high quality auditing and accounting and provide independent
assurance to our stakeholders, the Legislature, the Executive and the
Public, that public funds are being used efficiently and for the intended
purposes.
CORE VALUES : Our core values are the guiding beacons for all that
we do and give us the benchmarks for assessing our performance,
Independence, Objectivity, Integrity, Reliability, Professional
Excellence, Transparency, Positive Approach
Mandate :
The Constitution of India forms the basis for the existence and
mandate of the CAG. Articles 148 to 151 ensure that the CAG and the
IAAD (Indian Audit and Accounts Department) that works under him
are able to conduct their work in an impartial and upright manner.
Article 148 imbues the CAG with the immunities from executive action
accorded to a Supreme Court Judge (making him independent of the
Executive as well as the Legislature).
Articles 149 and 150 define his duties and powers.
Article 151 prescribes that his reports relative to Union and the States
are to be submitted to the President/ Governor and placed before the
respective legislatures (Lok Sabha or Vidhan Sabha).
The salary and other conditions of service of the Comptroller and
Auditor General prescribed by Parliament by law viz., the Comptroller
and Auditor General (Conditions of Service) Act, 1953, as amended in
1971.
Independence : The Constitution has made the following provisions to
safeguard and ensure the independence of CAG :

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He is provided with the security of tenure. He can be removed by the
president only in accordance with the procedure mentioned in the
Constitution. Thus, he does not hold his office till the pleasure of the
president, though fie is appointed by him.
He is not eligible for further office, either under the Government of
India or of any state, after he ceases to hold his office.
His salary and other service conditions are determined by the
Parliament.
Neither his salary nor his rights in respect of leave of absence, pension
or age of retirement can be altered to his disadvantage after his
appointment.
The conditions of service of persons serving in the Indian Audit and
Accounts Department and the administrative powers of the CAG are
prescribed by the president after consultation with the CAG.
The administrative expenses of the office of the CAG, including all
salaries, allowances and pensions of persons serving in that office are
charged upon the Consolidated Fund of India. Thus, they are not
subject to the vote of Parliament.
Further, no minister can represent the CAG in Parliament (both
Houses) and no minister can be called upon to take any responsibility
for any actions done by him.
Powers, functions and responsibilities :
Audit of government accounts (including the accounts of the state
governments) in India is entrusted to the CAG of India
CAG is empowered to audit,

all expenditure from the Consolidated Fund of the union or state


governments, whether incurred within India or outside,

all revenue into the Consolidated Funds, and

all transactions relating to the Public Accounts and the Contingency


Funds of the Union and the states.

Specifically, audits include :


Transactions relating to debt, deposits, remittances, Trading, and
manufacturing

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Profit and loss accounts and balance sheets kept under the order of
the President or Governors
Receipts and stock accounts. CAG also audits the books of accounts of
the government companies as per Companies Act.
In addition, the CAG also executes performance and compliance audits
of various functions and departments of the government.
Recently, in a path-breaking judgment, the Supreme Court of India
ruled that the CAG General could audit private firms in revenue-share
deals with government.
The reports of the CAG are taken into consideration by the Public
Accounts Committees, which are special committees in the Parliament
of India and the state legislatures.
The CAG is also the head of the Indian Audit and Accounts Service,
which has over 58,000 employees across the country.
Reforms suggested by ex CAG Vinod Rai :
Bring all private-public partnerships (PPPs), Panchayti Raj Institutions
and government-funded societies, within the ambit of the CAG.
Amendments to the CAG Act of 1971 to keep pace with the changes in
governance.
A collegium type mechanism to choose a new CAG on the lines of
selecting a Chief Vigilance Commissioner (CVC).
Ex CAG famously remarked : Audit has an adversarial function. In
any situation whether it is private or public or government or
whatever it is, it has an adversarial function. We are not going to
praise government policies in an adversarial function. What is the
purpose of audit to look into actions taken and try to ensure that
the actions that have been taken are as per the rules and procedures.
Structure of CAGS Office :
The Indian Audit and Accounts Department (IAAD) is headed by the
Comptroller and Auditor General of India (CAG).
He is assisted by five Deputy Comptroller and Auditors General of
India. One of the Deputy CAGs is also the chairman of the Audit
Board.

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Below the Deputy CAG are four Additional Deputy Comptroller and
Auditors General of India.
The hierarchy in the CAGs office comprises --- Assistant Comptroller
and Auditor General of India --- Directors General --- Principal
Directors --- Directors --- Deputy Directors.
One Director acts as Secretary to CAG.
At the regional level, in various states, there are a number of
Accountants General who act as agents of the CAG in performing their
functional and supervisory responsibilities at the state level.
As of 31 March, 2011, IAAD had 141 main offices, 116 branch offices
and 435 Resident Audit Offices.
Prominent audit reports : Following are some of the most debated CAG
reports :
2G Spectrum allocation
Coal Mine Allocation
Fodder scam
Krishna-Godavari(KG)D6 gas block

Conclusion : CAG is a very important constitutional position. It is one of


the positive features of the Indian government system that the CAGs
independence has rarely been questioned and his reports and comments
have always been given due respect.
Go To Module-4 QUESTIONS.
Q : 2012, 3, 5 : Explain : Public service commission.
Ans :
http://download.nos.org/srsec317newE/317EL33.pdf
Intro :
The civil servants occupy an important role in the successful
administration of state at different levels. Therefore, their recruitment,
training, emoluments, conditions of service, promotion policies, etc.
assume importance. For an impartial consideration of these matters
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relating to civil servants, an independent and expert authority is
required which is known as the institution of public service
commission.
One of the important features of our Constitution is the inclusion of
Public Service Commission at both Union and State levels in the
Constitution itself.
While UPSC and SPSC are constitutional bodies, a joint public service
commission is created by an Act of Parliament.
The Need of an Independent Agency :
Recruitment of civil servants has to be neutral, unbiased and free from
prejudices of any kind. Then alone any merit system will inspire
confidence. To ensure objectivity and impartiality in recruitment,
several measures have been taken. The constitution of an independent
agency in the form of a public service commission for recruitment is
one of them.
Through this agency :
(i) the executive branch has been divested of the power of making
recruitment to the superior levels of civil services.
(ii) the agency thus created is an extra-departmental body such as
a commission, which functions outside the normal machinery of
government.
(iii) a special constitutional status is conferred on this agency to
ensure autonomous functioning.
It must be remembered that the commission is only a recruiting
agency, and not an appointing authority. The authority of making
appointments rests with the government. The commission is an
advisory and recommendatory body. Its decisions are not mandatory.
Normally, government accepts its recommendations, but government
may not always accept what the commission suggests. However, in
such cases the reasons for not accepting the recommendations have
to be explained and recorded.
Type of Organization :
The constitution provided a commission as distinct from the customary
departmental type for undertaking the task of recruitment of civil
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servants. The fathers of the constitution were perhaps guided in their
decision by the fact that the task requires experts and longer
specialized knowledge that facilitates collective deliberation by a group
of experts who are able to pool their knowledge and experience to
arrive at informed and objective decisions. Such a method of making
decisions collectively is described as corporate mode of functioning or
decision making.
Further a plural body like public service commission consisting of
experts in parts professional and technical weightage in the process of
decision making. When several heads combine for deliberations,
biases are eliminated and objectivity is ensured. A commission
functions outside the normal governmental machinery, hence greater
flexibility and innovativeness of approach is possible. Bureaucratic
rigidities and delays, which characterize government departments can
thus be avoided.
Significance of Constitutional Status for The Commission :
The constitutional status is intended to ensure the Commission to
function without fear or favour. This can be facilitated when its
composition, role and authority, privileges of its members, method of
appointment and removal of members, qualifications for appointment
and ground for removal etc. are constitutionally protected. The
Commission can function without being influenced by political or other
extraneous consideration. Conferment of constitutional status is, thus,
meant to provide safeguards against any possible encroachment on
the authority and independence of the commission either by the
executive or the legislature.
Composition of Union Public Service Commission :
For the purpose of the higher level civil services of the Union
Government, the Constitution provides for the setting up of the Union
Public Service Commission (UPSC).
The number of members of the Commission and the conditions of their
service are left to be determined by the President, which means the
government. It has since been decided that there shall be a chairman
and six to eight members of the Commission. The chairman and the
members of the Commission are appointed by the President. The

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Constitution provides that at least half the members have to be
persons who have served for at least ten years under the Government
of India or a State Government.
A member holds office for a term of six years from the date he joins
duty or until he attains the age of sixty five years, whichever is earlier.
The Chairman is ineligible for any future employment under the
government, but other members are entitled to accept the
chairmanship of the UPSC or of a State Public Service Commission.
The conditions of service of members cannot be changed to their
disadvantage after appointment. Their salaries, allowances, etc. are
not submitted to the vote of Parliament as they are charged on the
Consolidated Fund of India.
It is also provided that the chairman or a member of the Commission
can be removed from office by the President on the ground of
misbehaviour. It is only after an inquiry by Supreme Court, on a
reference being made to it by the President. Pending the inquiry by
the Court, the President may suspend the member concerned. A
member including the chairman would be deemed guilty of
misbehaviour if he becomes interested in any monetary benefit in the
discharge of duties as a member. It is also provided that the President
may remove the chairman or any other member from office, on the
ground of insolvency, infirmity of mind or body, or if he is engaged
during the term of office in any paid employment outside the duties of
his office.
Functions of UNION Public Service Commission :
The functions of the UPSC as described in the Constitution are :
(i) To advise the government on all matters relating to the methods
of recruitment and norms to be followed in making appointments to
civil services either directly or by promotion.
(ii) To advise on the suitability of candidates for appointment,
promotion and transfer.
(iii) To conduct examinations for appointment to All India services.
(iv) To advise on disciplinary matters affecting government
servants.

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(v) To advise on claims of legal proceedings instituted against a
government servant and on the claims in respect of injuries
sustained by a government servant while on duty.
(vi) To advise on any other matter specifically referred by the
President.
There is also a provision for extending the functions of the
Commission by Parliament not only in respect of government services
but also in respect of services under local authorities, corporations or
other public institutions.
The jurisdiction of the Commission can be reduced by taking away
some posts from its purview. For example, the Commission is not
consulted in regard to selections for the following appointments :
(i) membership or chairmanship of tribunals or commissions
(ii) posts of high diplomatic nature
(iii) Group C and Group D employees who constitute nearly 90% of
the total number of the Central Government employees.
The Commission is consulted in matters of censure, compulsory
retirement, removal or dismissal from service, reduction to lower
grade or post or scale, withholding of increments or promotion,
recovery of the whole or part of any loss caused to the government by
negligence or breach of order. Moreover, the Commission is also
consulted in relation to an order of the President on an appeal against
any of the above penalties made by a subordinate authority after
consideration of any petition or memorandum or otherwise.
The Commission also tenders advice to government on methods of
recruitment, and the principle to be followed in making appointments,
promotions and transfers from one service to another and the
suitability of candidates for such appointments, promotions or
transfers.
It is the duty of the Commission to present annually to the President a
report as to the work done by the Commission. The report along with
the memorandum explaining the action taken by the government on
the recommendations of the Commission, is placed before the
Parliament. Government, thus, becomes responsible to explain the
reasons in case it has not accepted the recommendations of the
commission.

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Composition of STATE Public Service Commission :
Each state in India has a public service commission. The Constitution
stipulates that the Governor determines the number of members of
the Commission. At least half of the members of Commission are
persons with a minimum of ten years of experience under the central
or a state government. Members are appointed by the Governor for a
term of six years or until the age of 62 years. Though the Governor is
the appointing authority but members can be removed only by the
President. Conditions of service of the members are determined by the
Governor but the Constitution stipulates that these shall not be
revised to their disadvantage. Implicit in the foregoing are certain
safeguards to ensure the Commissions independence.
A member of a state public service commission on retirement or
otherwise can be appointed as chairman or member of UPSC, or as
chairman of that or any other state service commission.
As in the case of UPSC, the state public service commission submits
its annual report to the Governor. The Governor goes through the
report to be placed before the state legislature along with the cases in
which the government has not accepted the advice of the Commission.
In such cases the government has to record the reasons for nonacceptance or rejection of the recommendations.
Functions of STATE Public Service Commission :
The state public service commission performs the same functions in
regard to its respective states public services, as are performed by the
Union Public Service Commission in regard to the Union Government.
Joint Public Service Commission :
Two or more states may agree that there should be one public service
commission for them. If a resolution to that effect is passed by the
House or by each house of legislature (where there are two houses) of
the respective states. Parliament may by law provide for the
appointment of a Joint State Public Service Commission to serve the
needs of those states.
The chairman and other members of this joint commission are
appointed by the President.

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Independence of Public Service Commission : The following constitutional


provisions are intended to make the commission, both UPSC and SPSC,
independent of any external influence :
1. Members are appointed for a fixed tenure of six years or until the
attainment of sixty- five years of age in the case of UPSC, and sixtytwo years in the case of SPSC.
2. The conditions of service of a member cannot be changed to his/her
disadvantage during his tenure of office.
3. The removal of a member can take place by an order of the
President on certain specific grounds in consultation of the Supreme
Court.
4. The expenses of the commission are charged on the Consolidated
Fund of India.
5. All regulations to be issued by the government excluding any
matter from the purview of the commission will have to be laid before
the Parliament or the state legislature for such modification as it may
deem fit to make.
6. Further employment of any member of UPSC/SPSC is severely
restricted.
Go To Module-4 QUESTIONS.
Go To CONTENTS.
SUGGESTED READING :
Constitutional Law of India: D. D. Basu
Introduction to the Constitution of India : D. D. Basu
Shorter Constitution of India : Durga Das Basu
Constitutional Law of India : V. N. Shukla
Constitutional Law of India : M. P. Jain
Constitution of India : J. N. Pandey
Constitutional Law of India : H. M. Seervai
Constitutional Law of India : P. M. Baxi

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Introduction to the Constitutional Law of India : Narendra Kumar, Allabahad
Law Agency

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