Constitution in Eng

Constitutional Law of India-II
Powers and Duties of President

Introduction
India achieved independence from the United Kingdom on 15 August 1947, initially as a Dominion within
the Commonwealth of Nations with George VI as the King of India, represented in the country by a
Governor-General. Still, following this, the Constituent Assembly of India, under the leadership of Dr. B.
R. Ambedkar, undertook the process of drafting a completely new constitution for the country. The
Constitution of India was eventually enacted on 26 November 1949 and came into force on 26 January
1950, making India a republic. The offices of monarch and governor-general were replaced by the new
office of President of India, with Rajendra Prasad as the first incumbent.
Duties of President
The primary duty of the President is to preserve, protect and defend the constitution and the law of India as
made part of his oath (Article 60 of Indian constitution).[10] He is liable for impeachment for violation of
the constitution (Article 61). President is the common head of all independent constitutional entities. All
his actions, recommendations (Article 3, Article 111, etc.) and supervisory powers (Article 78 c, Article
108, Article 111, etc.) on the executive and legislative entities of India shall be in accordance to uphold the
constitution.[11] There is no bar on the actions of the President to contest in the court of law.
Powers of President
1) Legislative powers
Legislative power is constitutionally vested in the Parliament of India of which the president is the head to
facilitate law making process as per constitution (Article 78, Article 86, etc.). The President summons both
the Houses (the Lok Sabha and the Rajya Sabha) of the Parliament and prorogues them. He can dissolve
the Lok Sabha. As per Article 74, President shall abide by the aid and advice of the Council of Ministers
headed by the Prime Minister provided the given advice is in accordance with the constitution. Article 143
gave power to the president to consult supreme court for constitutional validity of any issue.
The President inaugurates the Parliament by addressing it after the general elections and also at the
beginning of the first session each year. Presidential address on these occasions is generally meant to
outline the new policies of the government.
2) Appointment Powers
The President appoints, as Prime Minister, the person most likely to command the support of the majority
in the Lok Sabha (usually the leader of the majority party or coalition). The President then appoints the
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other members of the Council of Ministers, distributing portfolios to them on the advice of the Prime
Minister.
The Council of Ministers remains in power during the 'pleasure' of the President.
The President is responsible for making a wide variety of appointments. These include:
Governors of States
The Chief Justice, other judges of the Supreme Court and High Courts of India
The Chief Minister of National capital territory of Delhi (Article 239 AA 5 of the constitution)
The Attorney General
The Comptroller and Auditor General
The Chief Election Commissioner and other Election Commissioners
The Chairman and other Members of the Union Public Service Commission
Vice Chancellor of central university and academic staff of central university through his nominee
Ambassadors and High Commissioners to other countries (Only through the list of names given by the
Prime Minister).
3) Financial Powers
All money bills originate in Lok Sabha / House of the people (Article 109). The president shall cause to be
laid before Parliament (Article 112), the Annual Budget and supplementary Budget for its approval. No
money bill can be introduced in Parliament without his assent. The President appoints a finance
commission every five years. Withdrawal from the contingency fund of India is done after the permission
of the President. The Contingency Fund of India is at the disposal of the President.
4) Judicial Powers
The President appoints the Chief Justice of the Union Judiciary and other judges on the advice of the Chief
Justice. He dismisses the judges if and only if the two Houses of the Parliament pass resolutions to that
effect by a two-thirds majority of the members present.
According to Article 143 of Indian Constitution, if the President considers a question of law or a matter of
public importance has arisen, he can ask for the advisory opinion of the Supreme Court.
5) Diplomatic Powers
All international treaties and agreements are negotiated and concluded on behalf of the President.
However, in practice, such negotiations are usually carried out by the Prime Minister along with his
Cabinet (especially the Foreign Minister). Also, such treaties are subject to the approval of the Parliament.
The President represents India in international forums and affairs where such a function is chiefly
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ceremonial. The President may also send and receive diplomats, i.e. the officers from the Indian Foreign
Service. The President is the first citizen of the country.
6) Military Powers
The President is the Commander-in-Chief of the Defense forces of India. The President can declare war or
conclude peace, subject to the approval of the parliament and the advice of the Prime Minister ,Council of
the Chiefs of Staffs of the Armed Forces, Military Secretary and President's Officer (Deputy Military
Secretary). All important treaties and contracts are made in the President's name. He also appoints the
chiefs of the service branches of the armed forces.
7) Pardoning Powers
mentioned in Article 72 of Indian Constitution, the President is empowered with the powers to grant
pardons in the following situations:
Punishment is for offence against Union Law
Punishment is by a Military Court
Sentence is that of death.
The decisions involving pardoning and other rights by the President are independent of the opinion of the
Prime Minister or the Lok Sabha majority. In most cases, however, the President exercises his executive
powers on the advice of the Prime Minister and the cabinet.
8) Emergency Powers
The President can declare three types of emergencies: national, state, financial under articles 352, 356 &
360 in addition to promulgating ordinances under article 123.
National Emergency
National emergency can be declared in the whole of India or a part of its territory on causes of war or
armed rebellion or an external aggression.
Under Article 352 of the India Constitution, the President can declare such an emergency only on the basis
of a written request by the Cabinet Ministers headed by the Prime Minister. Such a proclamation must be
approved by the Parliament within one month. Such an emergency can be imposed for six months. It can
be extended by six months by repeated parliamentary approval, there's no maximum duration.
In such an emergency, Fundamental Rights of Indian citizens can be suspended.The six freedoms under
Right to Freedom are automatically suspended. However, the Right to Life and Personal Liberty cannot be
suspended.(Article 21)
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State Emergency- If the President is satisfied, on the basis of the report of the Governor of the concerned
state or from other sources that the governance in a state cannot be carried out according to the provisions
in the Constitution, he can declare a state of emergency in the state. Such an emergency must be approved
by the Parliament within a period of 2 months.
Under Article 356 of the Indian Constitution, it can be imposed from six months to a maximum period of
three years with repeated parliamentary approval every six months.
A State Emergency can be imposed via the following:
By Article 356 If that state failed to run constitutionally i.e. constitutional machinery has failed
By Article 365 If that state is not working according to the given direction of the Union Government.
This type of emergency needs the approval of the parliament within 2 months. It can last up to a maximum
of three years via extensions after each 6-month period. However, after one year it can be extended only if
1. A state of National Emergency has been declared in the country or in the particular state.
2. The Election Commission finds it difficult to organize an election in that state.
Financial Emergency
Under Article 360 of the constitution, President can proclaim financial emergency when the financial
stability or credit of the nation or of any part of its territory is threatened. However till now, no guide lines
defining the situation of financial emergency in the entire country or a state or a union territory or a
panchayat or a municipality or a corporation, are framed either by finance commission or by central
government. Such an emergency must be approved by the Parliament within two months by simple
majority. It has never been declared. A state of financial emergency remains in force indefinitely until
revoked by the President.
The President can reduce the salaries of all government officials, including judges of the Supreme Court
and High Courts, in case of a financial emergency. All money bills passed by the State legislatures are
submitted to the President for approval. He can direct the state to observe certain principles (economy
measures) relating to financial matters
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Position of President
The President of India is the formal head of the executive, legislature and judiciary of India and is the
commander-in-chief of the Indian Armed Forces Powers and Position of President of India
Art- 53(1) says that 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 the constitution.
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Thus the President of India has been given wide and far-reaching powers which he enjoys both during
normal and emergency time. 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 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 time.
Position of President prior to 42nd Amendment Act of 1976
Explaining the position of the president in the Constituent Assembly Dr. Ambedkar said: Under the Draft
Constitution the president occupies the same position as the King under the English Constitution. He is the
head of the State but not does not rule the nation. He is the symbol of the nation. His place in the
administration is that of a ceremonial device on a seal by which the nations decisions are made known. He
will be generally bound by the advice of the Ministers. He can do nothing contrary to their advice nor can
do anything without their advice.
Dr. Rajendra Prasad expressed a similar view in these words:
Although there is no specific provision of the Constitution itself making it binding on the president to
accept the advice of his ministers, it is hoped that the convention under which in England the King
always acted on the advice of his Ministers, would be established of this country also and the president
would become constitutional president in all matters.
Case- Ram Jawaya v. State of Punjab
The Court observed, Under Art- 53(1) of our constitution the executive power of the union is vested on
the president but under Art 74 there is to be a council of ministers with the prime minister as the head to
aid and advice the president in the exercise of his functions. The president has thus been made a formal or
constitutional head of the executive and the real executive powers are vested in the ministers or
cabinet..
Case- UN Rao v. Indira Gandhi
The Supreme Court held that even after the dissolution of the Lok Sabha the council of ministers does not
cease to hold office. Art- 74(1) is mandatory and therefore the president cannot exercise the executive
power without the aid and advice of the Council of Ministers.
Position of President after 42nd Amendment Act, 1976
This amendment removes all doubts about the position of the president under the Indian Constitution. It
has amended Art- 74 of the Constitution which makes it clear that the president shall be bound by the
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advice of the council of ministers. It says : there shall be council of ministers with the Prime minister at
the head to aid and advice the president who shall, in exercise of his functions act in accordance with such
advice.
44th Amendment Act, 1978- This amendment has inserted the following proviso in clause (1) of Art- 74:
Provided 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. The 44th Amendment recognizes this limited but essential role of the president under the
Indian Constitution. But the weak position of the president does not mean that his office is superfluous. He
is the symbol of Indian National Unity. He plays a vital role in the working of the government. Being
impartial and above party politics, he exerts or is likely to exert his influence on the decisions of the prime
minister.
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Ordinance making power-
History of Ordinances
Ordinances were included in the Constitution of India from Government of India Act, 1935, which gave
the authority to the Governor General to promulgate Ordinances. Section 42 and 43 of the said act dealt
with Ordinance making power of the Governor General which states that, If circumstances exist which
render it necessary for him to take immediate action, then only he can use this power.
There were massive discussion and debates related to the Ordinance making power, some of the members
of the Constituent Assembly emphasized that this power of President is against the constitutional morality
and was extra-ordinary in nature, some argued that it should be left as a provision which should be used
during emergencies only.
What is an ordinance and who makes it?
Under the Constitution, the power to make laws rests with the legislature. However, in cases when
Parliament is not in session, and immediate action is needed, the President can issue an ordinance. An
ordinance is a law, and could introduce legislative changes.
The Supreme Court has clarified that the legislative power to issue ordinances is in the nature of an
emergency power given to the executive only to meet an emergent situation.
Example-The President issued the Criminal Law (Amendment) Ordinance on February 3, 2013. This
ordinance amends the Indian Penal Code, Criminal Procedure Code and the Indian Evidence Act.
Ordinance making power of the President
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Article 123 of the Indian Constitution grants the President of India certain Law making powers i.e. to
Promulgate Ordinances when either of the two Houses of the Parliament is not in session which makes it
impossible for a single House to pass and enact a law. Ordinances may relate to any subject that the
parliament has the power to make law, and would be having same limitations. Thus, the following
limitations exist:-
When legislature is not in session: the President can only promulgate when either of the House of
Parliament is not in session.
Immediate action is needed: the President though has the power of promulgating the ordinances but same
cannot be done unless he is satisfied that there are circumstances that require him to take immediate action.
Parliament should approve: after the ordinance has been passed it is required to be approved by the
parliament within six weeks of reassembling. The same will cease to operate if disapproved by either
House.
The President may withdraw an ordinance at any time. However he exercises his power with the consent of
the Council of Ministers headed by the President. The Ordinances may have retrospective effect and may
modify or repeal any act of parliament or other ordinances. It may be used to amend a tax law but it can
never amend the Constitution.
Ordinances promulgated from year 1950- 2008, are overwhelming in the areas of Finance (129 in number),
Labor (46), commerce & Industry (28), Home Affair (102) and Law and Justice (29). Out of these a very
few of them can be classified under actual emergencies, and hence necessary as a constitutional obligation.
While the number of Ordinances issued under the supervision of first, second, third and fourth Lok Sabha
which was 39, 20, 31, and 34 respectively. The ordinances promulgated increased thrice in the Fifth Lok
Sabha, ie. 93 Ordinances were promulgated.
The up-going trend was reversed by the Janta Dal which during their three year term of governance
promulgated only 34 Ordinances from 1977-1979. The next two governments had promulgated an average
number of 10 Ordinances per year. The Narasimha Rao Government from year 1991-1996 had
promulgated an average of 21 ordinances per year and none of the ordinance had ever dealt with either the
corruption scam or with the prevailing political instability. In fact none of them were re-introduced as Bill
in the parliament. The National Democratic Alliance (NDA) Government from year 1998-2004 had
promulgated an average of 14.6 Ordinances per year and later the UPA Government from year 2004-2009
had promulgated an average of 6.8 Ordinances per year.
Satisfaction of the President
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One of the essentials to be kept in mind while passing an ordinance is that the President should be
satisfied; that circumstances exist that requires immediate actions on part of the President. The apex court
has not yet defined satisfaction of the President and even whether the subjective satisfaction of the
President can be questioned in the Court of Law. To clearly clarify the said ambiguity, Indira Gandhi led
Government passed the 38th Constitutional (Amendment) Act, 1975 which has expressly excluded the
subjective satisfaction of the President outside the purview of Judicial Review. Further in 44 th
(Amendment) Act, 1978 deleted this clause, holding that the power of President could be challenged in the
Court of Law if it is based on bad faith, corrupt motive or had any mala fide intention.
In the case of A.K. Roy v. Union of India (1982) 1 SCC 271, the Supreme Court held that the subjective
satisfaction of the President is not completely non-justiciable. Later in case of Venkata Reddy v. State of
Andhra Pradesh (1985) 3 SCC 198, the Apex court over ruled its own decision and held that the
Satisfaction of the President cannot be called in question in the Court of law and is out of Judicial Review.
About 615 Ordinances were issued between the years 1952 to 2006, and out of it only 1 can be reasonably
justiciable, which was introduced by the Prime Minister Moraji Desai in 1978- where the currency notes in
denominations of Rs.1000/5000/10,000 were demonetized-the reason given was Parliament was not in
session and it had to be done without letting people to know about it, and it was one way to deal with
corruption and inflation. If people had known about it, the same thing would have been completely failed.
Out of 615 Ordinances, an average of 214 Ordinances were promulgated just 15 days before the Parliament
was supposed to be in session while 261 were promulgated within 15 days, when Parliament was ending
its session. One of the most outrageous moves was Indira Gandhis move to nationalize Banks through an
Ordinance issued by her.
Important Cases
In the case of R.C. Copper v. Union of India(AIR1970)constitution validity of the Twenty-fifth
Amendment Act, 1971 was challenged which curtailed the right of property of an individual and permitted
the acquisition of the same by the government for the public use, on the payment of compensation which
has to be determined by the Parliament and not by the court of law. So in the said case popularly known as
Bank Nationalization case, the Apex court while examining the constitutionality of Banking Companies
Ordinance, 1969 which had sought to nationalize 14 commercial banks in India, it was held that President
decision can be challenged on the ground that no immediate action was required on his part.
In the case of A.K. Roy v. Union of India(1982) the Supreme Court while examining the constitutionality
of the National Security Ordinance, 1980 which was issued to provide for preventive detention in certain
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cases, the Supreme Court argued that the Presidents power of making Ordinances is not beyond the
Judicial Review of the court. However, the Court was unable to explore the issues of the case further as the
ordinance of the President was replaced by an Act. The court also pointed out the need to exercise judicial
review over the Presidents decision only at substantial grounds and not otherwise at every casual
challenge.
In the case of S.K.G.Sugar Ltd v. State of Bihar(AIR 1997), it was held that promulgating of an Ordinance
by the Governor is purely upon the Subjective Satisfaction of him and he is the sole Judge to consider the
necessity to issue the Ordinance and his satisfaction is not a justiciable matter.
In the case of T. Venkata Reddy v. State of Andhra Pradesh(AIR 1985), the petitioner challenged the
constitutional validity of the Andhra Pradesh Abolition of Posts of Part-time Village Officers Ordinances,
1984. One of the grounds was that the Ordinance is void on account of the lack of mind used by the
Governor and from the commencement of the same the state legislature was disapproving it. The ordinance
is said to take effect as soon as it is promulgated by the President and ceases to operate by the legislative
act.
One of the questions which were raised in the above mentioned case by the court was: whether the
validity of an Ordinance passed can be tested upon the similar grounds as to those on which an
executive or judicial action is tested. In answering the question the Supreme Court cited its own earlier
judgment given in K.Nagaraj v. State of Karnataka(AIR-1993), and held that the Power of making
Ordinances is a legislative action so the same grounds as related to the law making should be challenged
than challenging the executive or judicial grounds.
Further in the case of S.R. Bommai v. Union of India(1994), in this case the scope of Judicial Review was
expanded as to where the court told that where the action by the President is taken without the relevant
materials, the same would be falling under the category of obviously perverse and the action would be
considered to be in bad faith. The Supreme Court held that the exercise of power by the President under
the Article 356(1) to issue proclamation is Justiciable and subject to Judicial Review to challenge on the
ground of mala fide.
In case of State of Orissa v. Bhupendra Kumar Bose (AIR-1962), the court held that the rights and
obligations which are created by the Ordinance came into effect as soon as the Ordinance is promulgated
and the same cannot be extinguished until a proper legislature by a legislative body extinguishes those
rights and obligations of the Ordinances. However, where the Ordinances promulgated is an abuse of
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power and a kind of Fraud on the constitution, then, the state prevailing with such promulgation should
immediately revive.
An ordinance would be made open to challenge on the following grounds:
1. It constitutes colorable legislation; or
2. It contravenes any of the Fundamental Rights as mentioned in our Constitution; or
3. It is violative of substantive provisions of Our Constitution such as an Article 301; or
4. Its retrospectively is unconstitutional.
Ordinances are however framed by the executive body which is said to be a single, unified entity. The
President is the head of the executive body who promulgate ordinances on the advice of the council of
ministers. The most important requirement of the promulgation of the ordinances is the necessity to take
the immediate action. Then there will be no difficulty in ascertaining the satisfaction of the President
when there is real need or necessity in promulgating the Ordinances.
In further the case of D.C. Wadhwa v. State of Bihar(AIR-1987) the State of Bihars promulgating and re-
promulgating ordinances were challenged as there was promulgation of the same in massive scale.
Between the year 1967-81, 256 ordinances were promulgated and then re-promulgated and some among
them remain into existence for up to 14 years. Chief Justice P.N. Bhagwati observed:
The power to make an ordinance is to meet an extraordinary situation and it should not be made to
meet political ends of an individual. Though it is contrary to democratic norm for an executive to make
a law but this power is given to the President to meet emergencies so it should be limited in some point
of time.
The power of judicial review of ordinances was once again discussed in year 1998 in the case of Krishna
Kumar Singh v State of Bihar(AIR-1998), in this case the Supreme Court struck down many number of
ordinances stating that no particular basis for the exercise of the Ordinance making power of the President
had been shown. It also stated: There was also no explanation offered for promulgating one ordinance
upon another.
Though the sheer profligacy in ordinance making power of the President had compelled the Apex Court to
perform some judicial review, there is still no clarity on the nature and extent of the judicial review of the
court over the ordinances made by the President or the Governor.
Conclusion
In most of the cases Power of Ordinance making is a controversial topic and a topic of discussion. It tries
to disturb the balance between the executive as well as legislative powers by bringing into the element of
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arbitrariness into the Constitutional System and disturbing the rule of law. Whenever such an ordinance
making power is exercised by an Executive body it shows disregard to the legislature. Till now only a few
grounds are established to challenge the validity of the Ordinances: (a.) directly violates a constitutional
provision, (b.) president has exceeded his constitutional power, (c.) President had made a colorable use of
his power.
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Impeachment of the President

The Constitution of India is the fountainhead from which all our laws derive their authority and
force. This is next article in the series on constitutional provisions in order to aid our readers in
understanding them.
Art- 61"Procedure for impeachment of the President - (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 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."
Procedure of Impeachment of President of India
Under Article 61, the President of India can be removed from the office by a process of impeachm
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for the violation of the Constitution. The impeachment is to be initiated by either House
Parliament.The charges are to be framed in the form of resolution, signed at least by 1/4 th members
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 se
to other House for investigation and decision. If the other House after investigation sustains
charges and passes the identical resolution with 2/3 rd majority of the total membership, the Preside
ceases to hold office from the date such resolution is passed. -------------------------------
Manner of election of President-

Article 54 of the constitution says:
"The President shall be elected by the members of an electoral college consisting of -
(a) The elected members of both Houses of Parliament and
(b) The elected members of the Legislative Assemblies of the States (including National Capital
Territory of Delhi and the Union Territory of Pondicherry vide the Constitution 70th amendment Act,
1992)." Thus in the election of the President the citizens play no direct part and he is elected indirectly by
the representatives or the people like the American President but no special electoral college is elected, as
in the case of America. Another point of difference that may be noted is that the election of the President
of India is by the system of proportional representation, by the single transferable vote, as provided by
Article 55(3) of the Constitution, while the American President is elected by the straight vote system.
The election is held in accordance to the system of Proportional representation by means of Single
transferable vote method. The Voting takes place by secret ballot system. The manner of election of
President is provided by Article 55 of the Constitution.
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Collective Responsibility of Council of Ministers

Introduction
Collective Ministerial Responsibility in the sole crux of Parliamentary democracy. The principle of
collective responsibility represents ministerial accountability to the legislature. In India, the doctrine of
collective responsibility of the Union Executive to the House of the People and of the State Executive to
the Legislative Assembly is specifically enshrined in the Constitution.
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Article 75(3) lays down that the Council of Ministers shall be collectively responsible to the Lok Sabha. It
means that the Government must maintain a majority in the Lok Sabha as a condition of its survival.
Object
The object of Collective responsibility is to make the whole body of persons holding ministerial office
collectively, or, if one may so put it, vicariously responsible for such acts of the others as are preferable to
their collective violation so that, even if an individual may not be personally responsible for it, yet, he will
be deemed to share the responsibility with those who may have actually committed some wrong.
The collective responsibility under Article 75 of the Constitution of India has two meanings: (I) All
members of a Government are unanimous in support of its policies, (II) The ministers, who had an
opportunity to speak for or against the policies in the cabinet are thereby personally and morally
responsible for its success and failure.
Cabinet collective responsibility is related to the fact that, if a vote of no confidence is passed in
parliament, the government is responsible collectively, and thus the entire government resigns. The
consequence will be that a new government will be formed, or parliament will dissolve and a general
election will be called. Cabinet collective responsibility is not the same as individual ministerial
responsibility, which states that ministers are responsible and therefore culpable for the running of their
department.
In S.P. Anand, Indore v. H. D. Deve Gowda(AIR-1996)
It was held that even though a Prime Minister is not a member of either House of Parliament, once he is
appointed he has also his Ministers become answerable to the House and the principle of collective
responsibility governs the democratic process. On no other condition can a Council of Ministers work as a
team and carry on the government of the country. It is the Prime Minister who enforces collective
responsibility amongst the Ministers through his ultimate power to dismiss a Minister. The Supreme Court
has ruled that the principle of collective responsibility is in full operation so long as the Lok Sabha is not
dissolved. But when it is dissolved the Council of Ministers cannot naturally enjoy the confidence of the
House of People.
The Convention of Collective Responsibility
Geoffrey Marshall has identified three strands within the convention of collective responsibility, which are
as follows:
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1. The Confidence Principle: A government can only remain in office for so long as it retains the confidence
of the House of Commons, a confidence which can be assumed unless and until proven otherwise by a
confidence vote.
2. The Unanimity Principle: Perhaps the most important practical aspect is that all members of the
government speak and vote together in Parliament, same in situations where the Prime Minister and
Cabinet themselves make an exception such as a free vote or an agreement to differ.
3. The Confidentiality Principle: This recognizes that unanimity, as a universally applicable situation, is a
constitutional fiction, but one which must be maintained, and is said to allow frank ministerial discussion
within Cabinet and Government.
According to Dr. B. R. Ambedkar, Collective Responsibility is enforced by the enforcement of two
principles. One principle is that, No person shall be nominated to the cabinet except on the advice of the
Prime Minister. Secondly, no person shall be retained as a Member of the Cabinet if the Prime Minister
says that he should be dismissed. It is only when the Members of the Cabinet, both in the matter of their
dismissal are placed under the Prime Minister, that it would be possible to realize our ideal of collective
responsibility.
Advantages
A parliamentary system that uses cabinet collective responsibility is more likely to avoid contradictions
and disagreements between cabinet members of the executive branch. Cabinet ministers are likely to feel
there is a practical and collective benefit from being part of a team. Cabinet collective responsibility also
benefits party and personal loyalty to the prime minister. Solidarity within the cabinet can strengthen the
prime minister's party and accelerate policy decisions and interests of that party. Cabinet collective
responsibility allows decisions to be made quickly by the prime minister and inevitably speeds up the
process of passing legislation. Presidential democracies often lack the ability to pass legislation quickly in
times of emergency or instances of national security.
Disadvantages
Critics of parliamentary democracies say that the prime minister as head of the parliament has too much
power in the passing of legislation. Because cabinet collective responsibility forces the cabinet ministers to
publicly agree with the prime minister's decisions, political debate and internal discourse is hindered.
Recent reports from the United Kingdom suggest that cabinet government has "progressively weakened"
since the Second World War, and virtually disappeared under Prime Minister Tony Blair.When
disagreements occur within the cabinet, collective agreements can be nearly impossible, resulting in the
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stoppage of policy change and new legislation. Cabinet collective responsibility is therefore dependent on
the mutual agreement and collective unity of the cabinet and its members.
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Art-79. Constitution of Parliament.-
There shall be a Parliament for the Union which shall consist of the President and two Houses to be known
respectively as the council of States and the House of the People.
Art- 80. Composition of the Council of States.-
(1) The Council of States shall consist of-
(a) twelve members to be nominated by the President in accordance with the provisions of clause (3);and
(b) not more than two hundred and thirty-eight representatives of the States and of the Union territories.
(2) The allocation of seats in the Council of States to be filled by representatives of the States and of the
Union territories shall be in accordance with the provisions in that behalf contained in the fourth
Schedule.
(3) The members to be nominated by the President under sub-clause (a) of clause (1) shall consist of
persons having special knowledge or practical experience in respect of such matters as the following,
namely:-
Literature, science, art and social service.
(4) The representatives of each State in the council of States shall be elected by the elected members of the
Legislative Assembly of the State in accordance with the system of proportional representation by means
of the single transferable vote.
(5) The representatives of the Union Territories in the council of States shall be chosen in such manner as
Parliament may by law prescribe.
Art- 83. Duration of Houses of Parliament.-
(1) The council of States shall not be subject to dissolution, but as nearly as possible one-third of the
members thereof shall retire as soon as may be on the expiration of every second year in accordance with
the provisions made in that behalf by Parliament by law.
(2) The House of the People, unless sooner dissolved, shall continue for five years from the date appointed
for its first meeting and no longer and the expiration of the said period of five years shall operate as a
dissolution of the House: Provided that the said period may, while a Proclamation of Emergency is in
operation, be extended by Parliament by law for a period not exceeding one year as a time and not
extending in any case beyond a period of six months after s the Proclamation has ceased to operate.
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Art- 84. Qualification for membership of Parliament.-
A person shall not be qualified to be chosen to fill a seat in Parliament unless he-
(a) is a citizen of India, and makes and subscribes before some person authorized in that behalf by the
Election Commission an oath or affirmation according to the form set out for the purpose in the Third
Schedule;
(b) is, in the case of a seat in the Council of States, not less than thirty years of age and, in the case of a
seat in the House of the People, not less than twenty-five years of age; and
(c) Possesses such other qualifications as may be prescribed in that behalf by or under any law made by
Parliament.
Art- 85. Sessions of Parliament, prorogation and dissolution.-
(1) The President shall form time to time summon each House of Parliament to meet at such time and place
as he thinks fit, but six months shall not intervene between its last sitting in one session and the date
appointed for its first sitting in the next session.
(2) The President may from time to time-
(a) Prorogue the Houses or either House;
(b) Dissolve the House of the People.
Art- 102. Disqualification's for membership.-
(1) A person shall be disqualified for being chosen as, and for being, a member of either House of
Parliament-
(a) if he holds any office of profit under the Government of India or the Government of any State, other
than an office declared by Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under
any acknowledgement of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
Explanation- For the purposes of this clause a person shall not be deemed to hold an office of profit under
the Government of India or the Government of any State by reason only that he is a Minister either for the
Union or for such State.
(2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified
under the Tenth Schedule
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Art- 103. Decision on questions as to disqualifications of members.-
(1) If any question arises as to whether a member of either House of Parliament has become subject to any
of the disqualifications mentioned in clause (1) of Article 102, the question shall be referred for the
decision of the President and his decision shall be final.
(2) Before giving any decision on any such question, the President shall obtain the opinion of the Election
Commission and shall act according to such opinion.
------------------------------------------
How is the independence of the judiciary ensured? Describe the various jurisdictions of the Supreme
Court of India. Explain the writ jurisdiction of a High Court. What is meant by Judicial Review?
Introduction India has adopted a federal constitution with distribution of powers between center and the
states. An independent judiciary is the essence of the federal character of the constitution. It is imperative
that the judiciary be impartial and independent of the legislative and executive branches of the country to
ensure the functioning of the government in accordance with the constitution. The supreme court, being the
guardian of the constitution, ensures that the fundamental rights of the citizens are not violated. To let the
judiciary fulfill this big responsibility efficiently, the constitution has provided several measures that
ensure the independence of the judiciary. However, owing to the nature of Indian politics, there have been
several attempts by the govt. to extend its supremacy over the judiciary and to reduce its independence. To
understand the dynamics between the govt. and the judiciary, we need to look at the provisions present in
the constitution.
Composition of the Supreme Court Art 124 specifies that the SC will be composed of a Chief Justice
and at most 7 other judges. The number of other judges has now been increased to 31. To be appointed as
a judge of the Supreme Court, a person must be a citizen of India and
a) has been a Judge of a High Court for
b) has been an advocate of a High Court for 10 yrs.
c) in the opinion of the president, a distinguished Jurist.
Appointment of the Judges
The procedure of appointment of the Chief Justice and other judges has created a lot of controversy
because it is the key aspect of the independence of the judiciary. Art 124 specifies that the Chief Justice is
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appointed by the president after consulting with the judges of the Supreme Court and the high courts.
Further, that while appointing other judges, the CJ must be consulted. Thus, the constitution clearly tried to
prevent the executive from having complete discretionary powers in the appointment of the judges.
Until 1973, the senior most judge of the Supreme Court was appointed as the Chief Justice. However, this
convention was broken when Justice AN Ray was appointed as the CJ by passing 3 more senior judges.
This was seen as a blatant assault on the independence of the judiciary. The govt. pleaded that the word
"consult" does not mean that the president is bound by the advice. He is free to make his own decision.
In 1977, in the case of Union of India vs Sankalchand Seth(AIR 1977), which was related to the transfer
of a Judge from one high court to another under art 222, SC held that the President has the right to differ
from the advice provided by the consultants.
Judges Transfer Case 1
In the case of S P Gupta vs Union of India, 1982 SC unanimously agreed with the meaning of the word
'consultation' as determined in the Sankalchand's case. It further held that the only ground on which the
decision of the govt. can be challenged is that it is based on mala fide and irrelevant consideration. In
doing so, it substantially reduced its own power in appointing the judges and gave control to the
executive.
This matter was raised again in the case of SC Advocates on Record Association vs Union of India, AIR
1982. In this case, the SC overruled the decision of the S P Gupta case and held that in the matter of
appointment of judges of high courts and supreme court, the CJ should have the primacy and the
appointment of the CJ should be based on seniority. It further held that the CJ must consult his two senior
most judges and the recommendation must be made only if there is a consensus among them.

A controversy arose again when the CJ recommended the names for appointment without consulting with
other judges in 1999. The president sought advice from the SC (re Presidential Reference 1999) and a 9
member bench held that an advice given by the CJ without proper consultation with other judges is not
binding on the govt.
As of now, due to the decision in Judges Transfer Case 2, the appointment of the judges in SC and High
Courts are fairly free from executive control. This is an important factor that ensure the independence of
the judiciary.
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The following are other provisions that work towards the same goal:
1. Fixed Tenure A SC Judge has a fixed tenure until retirement age. He cannot be removed except by a
presidential order passed with a simple majority as well as by 2/3 majority of each house of the parliament
present and voting.
No judge has ever been removed by a presidential order in India. The proceedings to remove were started
to Justice V Ramaswamy, but the motion was not approved because lack of required majority.
In the case of C Ramachandran Iyer vs A N Bhattacharjee 1995, pressure was put the the local bar
association on the judge to resign. In this case, the SC held that only the Chief Justice of the SC can be the
prime mover of the action against erring judges. Thus, after this case, action against judges was allowed
only through in-house procedures of the judiciary.
2. Salary The salary of the judges cannot be changed after the appointment for their disadvantage.
3. Jurisdiction of the courts The jurisdiction of the SC can be increased but not decreased i.e. their power
cannot be curtailed.
4. Art 121 No discussion about the judges in the parliament is permitted as per art 121 except for the
discussion about his removal.
5. Art 129 and 215 Power to punish for its contempt The SC and the High Courts have the power to
punish anybody for civil and criminal contempt of itself under art 129 and 215.
6. Art 50 Separation of judiciary from executive Art 50 urges the state to take steps to separate the
judiciary from the executive in the public service of the state.
7. Appointment of the judges only after consultation with legal experts. As discussed above, the
executive does not have unlimited power over appointment of judges.
8. Art 124(7) Prohibition on practicing before any court Art 124 prohibits a retired judge from
appearing and pleading before any court or tribunal.
Jurisdictions of Supreme Court
1. 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.
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.
2. Art 131 Original Jurisdiction
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The SC has original jurisdiction in any dispute arising between:
a) Center and one or more states.
b) Center and one or more states on one side and one or more states on another.
c.) two or more states.
Under original jurisdiction, individuals cannot bring a suit again Govt. of India. The suit must involves 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 Govt. 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.
Exceptions
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.
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.
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.
3. Art 132 Appellate Jurisdiction - Constitutional
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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 judgment 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 no direct decision by SC on that point, it is a substantial question of law that
can permit appeal in SC.
4. Art 133 Appellate Jurisdiction Civi 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.
5. 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.
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Art 135 Federal Court's (the one that existed before the commencement of the constitution) jurisdiction to
be exercised by the SC.
7. Art 136 Special Leave to appeal by SC 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. Pritam Singh vs State AIR 1950 -SC explained how this discretionary power
is to be used - Since the power is exceptional is very wide, it must be used sparingly and in exceptional
circumstances. Beyond this point it is not possible to fetter the exercise of this power by any set formula.
Art 137 Power to review its judgement. Under exceptional circumstance, the SC may review its
judgement.
Art 139 A Under this article the 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.
Union of India vs SGPC 1986 - 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.
8. Art 143 Advisory Jurisdiction Art 143 provides that 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. Under 143(2), the SC is can be asked to give opinion even
on matters not permitted under art 131. There is no similar provision in the American constitution. In US,
the court can give ruling only on concrete cases. 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 re Special Courts Bill 1979 case, SC has held that opinions given by it under this
jurisdiction are binding on all courts in the country. In re Cauvery Disputes Tribunal 1992, SC declared
that the ordinance passed by the State of Karnataka to not follow the order of the tribunal to release water
to TN, is unconstitutional. 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.
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Art 141 Judgment of the SC is binding on all courts, except itself. In the case of Bengal Immunity Co vs
State of Bihar. 1955, SC held that the principle of Stare decisis is not an inflexible rule of law and cannot
be used to perpetuate errors. ------------------------------------------------
Advisory Jurisdiction (Article 143)

Article 143 of the Constitution confers Advisory Jurisdiction to the Supreme Court of India. This provision
finds its origin in Section 213 of the Government of India Act, 1935, which conferred upon the Governor
General the discretion to pose questions of public importance to the Federal Court. Similarly, as per Article
143 the President has the power to address questions to the Supreme Court, which he deems important for
public welfare. The Supreme Court advises the President by answering the query put before it. Till date
this mechanism has been put to use only twelve times. However, it is pertinent to note that this is not
binding on the President, nor is it law declared by the Supreme Court, hence not binding on subordinate
courts.
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Parliamentary Privileges
Introduction:
The term parliamentary privileges is used in Constitutional writings to denote both these types of rights
and immunities. Sir Thomas Erskine May has defined the expression Parliamentary privileges as follows:
The sum of the peculiar rights enjoyed by each house collectively is a constituent part of the High Court of
Parliament, and by members of each house of parliament individually, without which they cannot
discharge their functions, and which exceed those possessed by other bodies or individuals. Parliamentary
privileges-this article defines parliamentary privileges of both Houses of Parliament and of their members
and committees. Article 194, which is an exact reproduction of Article 105, deals with the State
Legislatures and their members and committees.
Parliamentary Privileges
A.105.Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof
1. Subject to the provisions of this Constitution and the rules and standing orders regulating the procedure
of Parliament, there shall be freedom of speech in Parliament.
2. No member of Parliament shall be liable to any proceeding in any court in respect of anything said or
any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect
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of the publication by or under the authority of either House of Parliament of any report, paper, votes or
proceedings.
3. In other respects, the powers, privileges and immunities of each House of Parliament, and the members
and the committee of each House, shall be such as may from time to time be defined by Parliament by law,
and until so defined, [shall be those of that House and of its members and committees immediately before
the coming into force of Section 15 of the Constitution (44th Amendment) Act, 1978].
4. The provision of clauses (1), (2), and (3) shall apply in relation to persons who by virtue of this
Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of
Parliament or any committee thereof as they apply in relation to the members of Parliament..
Freedom of speech
Article 105, clause (1), expressly safeguards freedom of speech in parliament. It says: there shall be
freedom of speech in parliament. Clause (2) further provides that no member of Parliament shall be liable
to any proceedings in any court in respect of anything said or any vote given by him in parliament or any
committee thereof. No action, civil or criminal, will therefore lie against a member for defamation or the
like in respect of things said in parliament or its committees. The immunity is not limited to mere spoken
words; it extends to votes, as clause (2) specifically declares, viz. any vote given by him in parliament or
any committee thereof. Though not expressly stated, the freedom of speech would extend to other acts also
done in connection with the proceedings of each House, such as, for notices of motions, questions, reports
of the committee, or the resolutions.
Article 105 (2) confers immunity, inter alia, in respect of anything said in Parliament the word anything is
of the widest import and is equivalent to everything. The only limitation arises from the words in
Parliament, which means during the sitting of Parliament and in the course of business of Parliament. Once
it was proved that Parliament was sitting and its business was transacted, anything said during the course
of that business was immune from proceedings in any court. This immunity is not only complete but it is
as it should be. It is one of the essence of parliamentary system of government that people's representative
should be free to express themselves without fear of legal expenses..
In a much publicized matter involving former Prime Minister, several ministers, Members of Parliament
and others a divided Court, in P.V.Narsimha Rao v. State (AIR1998) has held that the privilege of
immunity from courts proceedings in Article 105 (2) extends even to bribes taken by the Members of
Parliament for the purpose of voting in a particular manner in Parliament. The majority (3 judges) did not
agree with the minority (2 judges) that the words in respect of in Article 105 (2) mean, arising out of and
25 | P a g e
therefore would not cover conduct antecedent to speech or voting in Parliament. The court was however
unanimous that the members of Parliament who gave bribes, or who took bribes but did not participate in
the voting could not claim immunity from court proceeding's under Article 105 (2). The decision has
invoked so much controversy and dissatisfaction that a review petition is pending in the court.
Right of Publication of proceedings
Clause (2) of Article 105 expressly declares that no person shall be liable in respect of the publication by
order under the authority of a house of Parliament, of any report, paper, votes or proceedings. Common
law accords the defence of qualified privilege to fair and accurate unofficial reports of parliamentary
proceedings, published in a newspaper or elsewhere. In Wason v. Walter (1868), Cockburn, C.J. observed
that it was of paramount public and national importance that parliamentary proceedings should be
communicated to public, which has the deepest interest in knowing what passes in Parliament. But a partial
report or a report of detached part of proceedings published with intent to injure individuals will be
disentitled to protection. The same is the law in India. The Parliamentary Proceedings (Protection of
Publication) Act, 1956 enacts that no person shall be liable to any proceedings, civil or criminal, in a court
in respect of the publication of a substantially true report of the proceedings in either House of the
Parliament, unless it is proved that the publication is made with malice.
Other privileges
Clause (3) of Article 105, as amended declares that the privileges of each House of Parliament, its
members and committees shall be such as determined by Parliament from time to time and until Parliament
does so, which it has not yet done, shall be such as on 20th June 1979 i.e., on the date of commencement of
Section 15 of the 44th Amendment. Similarly, a general warrant of arrest issued by Parliament in India
cannot claim to be regarded as a court of record in any sense . Also the privilege of the two Houses of
Parliament, unlike the privileges of the House of Commons and House of Lords in England are identical.
To each House of Parliament, accordingly, belong the privileges, which are possessed by the House of
Commons in the United Kingdom.
In Pandit M.S.M Sharma v. Shri Krishna Sinha(air-1958) ,
The Supreme Court by a majority of four to one rejected the contention of the petitioner. Das C.J., who
delivered the majority judgment, observed that the House of Commons had at the commencement of our
Constitution the power or privilege of prohibiting the publication of even a true and faithful report of the
debates or proceedings that took place within the House. A fortiori the House had at the relevant time the
power or privilege of prohibiting the publication of an inaccurate version of such debates or proceedings.
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Now Article 361-A inserted by the 44th Amendment with effect from June 20, 1979 provides that no
person shall be liable to any proceedings civil or criminal for reporting the proceedings of either House of
Parliament or a State Legislature unless the reporting is proved to have been made with malice. This
provision does not apply to the reporting of proceedings of secret sittings of the Houses.
A. Freedom from Arrest- The Member of Parliament also enjoy freedom from arrest. From this
freedom it is understood that no such member shall be arrested in a civil case 40 days before and after
the adjournment of the house (Lok Sabha and Rajya Sabha) and also when the house is in session.
It also means that no member can be arrested within the precincts of the Parliament without the permission
of the House to which he/she belongs. When a member of the house is arrested or detained, the authority
concerned should immediately inform the speaker or the Chairman regarding the reasons for such arrest.
B. Freedom of attendance as witnesses- The members of parliament also enjoys freedom from
attendance as witnesses.
C. Right to control publication of proceedings
Closely allied to the power to exclude strangers is the power of the House to prohibit publication
of its debates and proceedings. Under the Constitution, absolute immunity from proceedings in
any court of law has been conferred on all persons connected with the publication of proceedings
of either House of Parliament, if such publication is made by or under the authority of the House.
The publication of proceedings of Parliament is subject to the control of the respective Houses.
D. Power of the House to punish for breach of privilege or contempt
The power of the House to punish for contempt or breach of privilege has been aptly described as
the "keystone of parliamentary privilege" and is considered necessary to enable the House to
discharge its functions and safeguard its authority and privilege. Without such a power the House
"would sink into utter contempt and inefficiency." This power has been judicially upheld in a
number of court case.
The period for which the House can commit an offender to custody or prison for contempt is
limited to the duration of the session of the House, i.e., when the House is prorogued.
Law Courts and Privileges Article 105, so also Article 194 subjects the powers, privileges and
immunities of each House as well as all its members and all its committees not only to the laws made by
the appropriate legislature but also to all other provisions of the Constitution. Both these articles far from
dealing with the legislative powers of the Houses of Parliament or of State Legislature respectively are
confined in scope to such powers of each House as it may exercise separately functioning as a House.
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A House of Parliament or Legislature cannot try anyone or any case directly as a court of justice can, but it
can proceed quasi judicially in cases of contempt of its authority or take up motions concerning its
privileges and immunities in order to seek removal of obstructions to the due performance of its legislative
functions. If any question of jurisdiction arises as to a certain matter, it has to be decided by a court of law
in appropriate proceedings. For example, the jurisdiction to try a criminal offence such as murder,
committed even within a House vests in ordinary courts and not in a of Parliament or in a State
Legislature. Also, a House of Parliament or State Legislature cannot in exercise of any supposed powers
under Articles 105 and 194 decide election disputes for which special authorities have been constituted
under the Representation of People Act, 1951 enacted in compliance with Article 329.
Parliamentary Privileges and Fundamental Rights In Pandit M.S.M. Sharma's case
In Sharma's case the Court held that in case of conflict between fundamental right under Article 19 (1) (a)
and a privilege under Article 194 (3) the latter would prevail. As regards Article 21, on facts the Court did
not find any violation of it. In Powers, Privileges and Immunities of the State Legislature, Re , the
proposition laid down in Sharma's case was explained not to mean that in all cases the privileges shall
override the fundamental rights.
Article 194
Powers, privileges, etc., of the Houses of Legislature and of the members and committees thereof.
1. Subject to the provisions of this Constitution and to the rules and standing orders regulating the
procedure of the Legislature, there shall be freedom of speech in the Legislature of every State.
2. No member of the Legislature of a State shall be liable to any proceeding in any court in respect of
anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be
so liable in respect of the publication by or under the authority of a House of such a Legislature of any
report, paper, votes or proceedings.
3. In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of
the members and the committees of a House of such Legislature, shall be such as may be defined from
time to time be defined by the Legislature by law, and until so defined, shall be those of that House and of
its members and committees immediately before the coming into force of Section 26 of the Constitution
(Forty Fourth Amendment) Act, 1978.
4. The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this
Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of the
Legislature of a State or any committee thereof as they apply in relation to members of that Legislature.
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Conclusion
There is a clear demarcation as to what all rights and privileges are absolute and what are not. For
example, in India Legislative Assemblies and Parliament never discharge any judicial function and their
historical and constitutional background does not support their claim to be regarded as courts of record in
any sense. No immunity from scrutiny by courts of general warrants issued by House in India can therefore
be claimed. Both the Parliament and State Legislatures have a duty to look carefully before making any
law, so that it doesn't harm other rights. It is also a duty of the members to properly use these privileges
and not misuse them for alternate purposes that is not in the favour of general interest of nation and public
at large. Thus what we must keep in mind is the fact that ?power corrupts and absolute power corrupts
absolutely. For this not to happen under the privileges granted, the public and the other governing body
should always be on vigil. ----------------------------------
Money Bill and Finance Bill

Money Bill-
Under the Constitution, the Bills concerning public finance can be divided into three categories:
(a) Money Bills proper i.e., Bills exclusively dealing with matters mentioned in all or any of the clauses of
article 110.
(b) Other Financial Bills dealing with any of the matters specified in clauses (a) to (f) of article 110 and
also other matters.
(c) Bills other than those falling under (a) and (b) but involving expenditure from the Consolidated Fund of
India.
Money Bills are defined in article 110. Other Financial Bills falling under (b) and (c) are covered by article
117, clauses (1) and (3) thereof respectively.
Money Bills in Indian Parliament under Indian Constitution
Article 110 of the Indian constitution stipulates that a bill in Parliament is to be deemed as a money bill if
it relates to
(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
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(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 Courts 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.
Money Bills: How are they Passed?
Art- 109 (1)-
All Money Bills are supposed to be introduced only in the Lok Sabha. For a Money Bill to be introduced,
the Presidents assent is mandatory. Once the Lok Sabha passes a Money Bill, it is forwarded to the Rajya
Sabha for recommendations. The Rajya Sabha must return the Bill in not more than 14 days with its
recommendations. If the Rajya Sabha fails to do so, the Bill is considered to have been passed by both
Houses.
The Lok Sabha has the authority to accept or reject any or all the recommendations of the Rajya Sabha. If
the recommendation/s of the Rajya Sabha are accepted, the Bill is said to have been passed by both Houses
after being amended by the Rajya Sabha and then accepted by the Lok Sabha.
Complicated as it sounds, this process has been followed since the time of Independence to pass Money
Bills. Contrarily, if the recommendations of the Rajya Sabha are rejected, the Bill is supposed to have
passed by both Houses as it was passed by the Lok Sabha. The Bill is then presented before the President
who gives or refuses his assent. Usually, the President is expected to ratify the Bill that has been passed by
the Indian Parliament because the presidential signature represents the sovereign stamp.
When a Bill is not a money Bill? Bill shall not be deemed to be a Money Bill by reason only that it
provides for the imposition of fines or other pecuniary penalties or for the demand or payment of fees for
licenses or fees for service rendered, or by reason that it provides for the imposition, abolition, remission,
alteration or regulation of any tax by any local authority or body for local purposes Who decides whether a
Bill is Money Bill or not? If any question arises whether a Bill is a Money Bill or not, the decision of the
Speaker of the House of the People thereon shall be final. The speaker of the house provides certificate
signed by him that a bill is Money bill. The certificate of the speaker is final and cannot be challenged in
any court of law. What is a Finance Bill? A finance bill is also a Money Bill. The Finance bill is one of the
documents presented with the budget or annual Financial Statement as mandated in Article 110 (a).
Speical provisions as to financial Bills Art- 117
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(1) A Bill or amendment making provision for any of the matters specified in sub-clauses (a) to (f) of
clause (1) of article 110 shall not be introduced or moved except on the recommendation of the President
and a Bill making such provision shall not be introduced in the Council of States:
Provided that no recommendation shall be required under this clause for the moving of an amendment
making provision for the reduction or abolition of any tax.
(2) A Bill or amendment shall not be deemed to make provision for any of the matters aforesaid by reason
only that it provides for the imposition of fines or other pecuniary penalties, or for the demand or payment
of fees for licences or fees for services rendered, or by reason that it provides for the imposition, abolition,
remission, alteration or regulation of any tax by any local authority or body for local purposes.
(3) A Bill which, if enacted and brought into operation, would involve expenditure from the Consolidated
Fund of India shall not be passed by either House of Parliament unless the President has recommended to
that House the consideration of the Bill.
What is the difference between Money Bill and Finance Bill?
1) As discussed above a money bill deals with any of the maters specified above as article 110 (a) to Article
110(g). However the Finance Bill is just concerned about article 110 (a). The structure of the Finance bill
presented with the documents has the following heads, supported by Schedules, statement of objects and
reasons and notes on clauses. : Rates of Income Tax , Income Tax , Wealth Tax , Customs , Excise Service
Tax, Central Sales Tax , Clean Energy Cess , Miscellaneous
2) All of the above are within the purview of article 110(a). In simple language a money bill may have other
provisions also. Like Money Bills, they can be introduced only in Lok Sabha on the recommendation of
the President.
3) Other than the one restriction that Money Bills can be introduced in Lok Sabha only, does not apply to the
Finance Bills. This means the Finance Bills can be referred to a Joint Committee of the Houses while
money bills cannot. This also means that provisions of article 108 regarding joint sitting of both Houses do
not apply to a Money Bill.
4) This also means that a finance bill can effectively rejected by the Rajya Sabha whereas money bill cannot.
Finance Bill is a bill introduced in Lok Sabha every year immediately after the presentation of the General
Budget to give effect to the financial proposals of the Government of India for the following financial year.
Finance Bills are treated as Money Bills as they substantially deal with amendments to various tax laws.
However Article 117 (3) says that those bills which contain provisions of involvement from the
consolidated fund of India are Finance bill and can be introduced in either House of Parliament. However,
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recommendation of the President is essential for consideration of these Bills by either House and unless
such recommendation is received, neither House can pass the Bill. --------------------------------
--------------------------------------
Comptroller and Auditor General (CAG) of India

Introduction
The Comptroller and Auditor General (CAG) of India is an authority, established by the Constitution
of India under article 148, who audits all receipts and expenditure of the Government of India and the state
governments, including those of bodies and authorities substantially financed by the 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 Department, the affairs of which are managed by officers of Indian Audit and
Accounts Service, and has over 58,000 employees across the country.
The CAG is mentioned in the Constitution of India under Article 148 151.
The CAG is ranked 9th and enjoys the same status as a judge of Supreme Court of India in Indian order of
precedence. The current CAG of India is Shashi Kant Sharma, who was appointed on 23 May 2013. He
is the 12th CAG of India.
Article 148 (Comptroller and Auditor-General of India)
(1) There shall be a Comptroller and Auditor-General of India who shall be appointed by the President by
warrant under his hand and seal and shall only be removed from office in like manner and on the like
grounds as a Judge of the Supreme Court.
(2) Every person appointed to be the Comptroller and Auditor-General of India shall, before he enters upon
his office, make and subscribe before the President, or some person appointed in that behalf by him, an
oath or affirmation according to the form set out for the purpose in the Third Schedule.
(3) The salary and other conditions of service of the Comptroller and Auditor- General shall be such as may
be determined by Parliament by law and, until they are so determined, shall be as specified in the Second
Schedule:
Provided that neither the salary of a Comptroller and Auditor-General nor his rights in respect of leave of
absence, pension or age of retirement shall be varied to his disadvantage after his appointment.
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(4) The Comptroller and Auditor-General shall not be eligible for further office either under the Government
of India or under the Government of any State after he has ceased to hold his office.
(5) Subject to the provisions of this Constitution and of any law made by Parliament, the conditions of service
of persons serving in the Indian Audit and Accounts Department and the administrative powers of the
Comptroller and Auditor-General shall be such as may be prescribed by rules made by the President after
consultation with the Comptroller and Auditor-General.
(6) The administrative expenses of the office of the Comptroller and Auditor- General, including all salaries,
allowances and pensions payable to or in respect of persons serving in that office, shall be charged upon
the Consolidated Fund of India.
Appointment
The Comptroller and Auditor-General of India are appointed by the President of India following a
recommendation by the Prime Minister. On appointment, he/she has to make an oath or affirmation before
the President of India.
Removal
The CAG shall only be removed from office in like manner and on the like grounds as a judge of the
Supreme Court of India. -----------------------------------------
Article- 165.Advocate-General for the State

(1) The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High
Court to be Advocate-General for the State.
(2) It shall be the duty of the Advocate-General to give advice to the Government of the State upon such
legal matters, and to perform such other duties of a legal character, as may from time to time be referred or
assigned to him by the Governor, and to discharge the functions conferred on him by or under this
Constitution or any other law for the time being in force.
(3) The Advocate-General shall hold office during the pleasure of the Governor, and shall receive such
remuneration as the Governor may determine. ---------------------------------------
Attorney General of India
Introduction
The Attorney General for India is the Indian government's chief legal advisor, and its primary lawyer in
the Supreme Court of India. He is appointed by the President of India under Article 76(1) of the
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Constitution and holds office during the pleasure of the President. He must be a person qualified to be
appointed as a Judge of the Supreme Court.
The 14th and current Attorney General is Mukul Rohatgi. He was appointed by Pranab Mukherjee, the
President of India. He has been formally appointed as Attorney General of India with effect from 12 June
2014 and shall have tenure of 3 years.
Art-76 Attorney-General for India
(1) The President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to
be Attorney-General for India.
(2) it shall be the duty of the Attorney General to give advice to the Government of India upon such legal
matters, and to perform such other duties of a legal character, as may from time to time be referred or
assigned to him by the President, and to discharge the functions conferred on him by or under this
Constitution or any other law for the time being in force.
(3) In the performance of his duties the Attorney-General shall have right of audience in all courts in the
territory of India.
(4) The Attorney General shall hold office during the pleasure of the President, and shall receive such
remuneration as the President may determine.
Powers and duties
The Attorney General is necessary for giving advice to the Government of India in legal matters referred to
him. He also performs other legal duties assigned to him by the President. The Attorney General has the
right of audience in all Courts in India as well as the right to participate in the proceedings of the
Parliament, though not to vote.The Attorney General appears on behalf of Government of India in all cases
(including suits, appeals and other proceedings) in the Supreme Court in which Government of India is
concerned. He also represents the Government of India in any reference made by the President to the
Supreme Court under Article 143 of the Constitution.
The Attorney General can accept briefs but cannot appear against the Government. He cannot defend an
accused in the criminal proceedings and accept the directorship of a company without the permission of
the Government.
The Attorney General is assisted by a Solicitor General and four Additional Solicitors General.The
Attorney General is to be consulted only in legal matters of real importance and only after the Ministry of
Law has been consulted. All references to the Attorney General are made by the Law Ministry .
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Prime Minister
Introduction
The office of the Prime Minister is the most powerful office in India. If Cabinet is the strongest institution,
the Prime Minister is the strongest person in the cabinet under the Constitution of India, the real centre of
power is the office of the Prime Minister. He is the Head of the Government of India. He is the real
custodian of all executive authority.
Prime Minister of India: The Real Executive
If the President is the Constitutional Head of the State, the real executive is the Council of Ministers
established by Article 74(1) with the Prime Minister at the head to aid and advise the President in the
exercise of his functions and he is constitutionally required to always act in accordance with such advice.
The question whether any, and if so what, advice was tendered by Ministers to the President cannot be
inquired into by any court.
Article 361 (1) also provides that the President shall not be answerable to any court for the exercise and
performance of the powers and duties of his office. The question of Ministerial advice cannot be brought
before courts and personal immunity from legal action, whether during office or thereafter, is given to the
President for any act done or purporting to be done by him in the exercise and performance of those
powers and duties.
It also establishes that the relations between the President and his Ministers are confidential, before 1978.
The Constitution simply provided for the Council of Ministers and the use of the term Cabinet in the
context of the machinery of government was nowhere mentioned.
The Constitution (Forty-fourth Amendment) Act, 1978, has institutionalized the term Cabinet by
recognising it and distinguishing it from other Ministers who are members of the Council of Ministers. The
newly inserted Clause (3) in Article 452 provides that the President shall not issue a Proclamation of
Emergency or a Proclamation varying it unless the decision of the Union Cabinet (that is to say, the
Council consisting of the Prime Minister and other Ministers of Cabinet rank appointed under Article 75)
is communicated to him in writing.
Appointment of the Prime Minister:
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The Constitution simply lies down that the Prime Minister is to be appointed by the President. In doing so
the President follows the rules of the parliamentary system. He appoints the leader of the majority in the
Lok Sabha as the Prime Minister. Whenever a party gets a clear majority in Lok Sabha elections, the
President plays a little role and he appoints the leader of such a party or a coalition group as the Prime
Minister. However, in case no party gets a majority and some parties are even unable to elect a common
candidate as their leader, the President can play a real role in the appointment of the Prime Minister.
Prime Minister need not be a sitting member of the Parliament:
Further, that any person who is not a member of either House of the Parliament can also becomes a
minister or the Prime Minister and he can remain so for six months, within this period he has to essentially
get the membership of either House. In case he fails to do so, he loses his office of Minister/Prime
Minister.
Eligibility
According to Article 84 of the Constitution of India, which sets the principal qualifications for member of
Parliament, and Article 75 of the Constitution of India, which sets the qualifications for the minister in the
Union Council of Minister, and the argument that the position of prime minister has been described as 'first
among equals',[11] A prime minister must:
be a citizen of India.
be a member of the Lok Sabha or the Rajya Sabha. If the person chosen as the prime minister is neither a
member of the Lok Sabha nor the Rajya Sabha at the time of selection, he or she must become a member
of either of the houses within six months.
be above 25 years of age if he or she is a member of Lok Sabha or above 30 years of age if he is a member
of the Rajya Sabha.
not hold any office of profit under the Government of India or the Government of any State or under any
local or other authority subject to the control of any of the said Governments.
If however a candidate is elected as the prime minister he/she must vacate their post from any private or
Government Company/ sector and may take up the post only on completion of his /her term
Oath
The Prime Minister is required to make and subscribe in the presence of President of India before entering
office, the oath of office and secrecy, as per the Third Schedule of the Constitution of India.
Tenure
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Theoretically, the Prime Minister holds office during the pleasure of the President. It really means, so long
as he enjoys the confidence of majority in Lok Sabha. Lok Sabha can pass a vote of no-confidence against
him and in this case the Prime Minister either submits his resignation to the President or gets dismissed by
the President.
Powers and Functions of the Prime Minister:
1. Formation of the Council of Ministers
The task of formation of the ministry begins with the appointment of the Prime Minister by the President.
After the appointment of Prime Minister, the President appoints all other ministers on the advice of the
Prime Minister. The PM determines the strength of his ministry and selects his team of ministers. However
this number cannot be more than 15% of the total membership of the Lok Sabha.
Normally, most of the ministers are drawn from Lok Sabha. Prime Minister decides who amongst them
shall be the Cabinet Minister and who will be Minister of State or a Deputy Minister. He can, if he so
desires, even have one or two Deputy Prime Ministers in his Council of Ministers
2. Allocation of Portfolios:
It is an undisputed privilege of the Prime Minister to allocate portfolios to his ministers. Which particular
department is to be given to which minister is determined by him. Any minister objecting to such an
allotment invites the wrath of the Prime Minister and can get completely ignored from the ministry.
3. Change of Portfolios:
The Prime Minister has the power to change the departments (portfolios) of the ministers at any time. It is
his privilege to shuffle and re-shuffle his ministry any time and as many times as he may like.
4. Chairman of the Cabinet:
The Prime Minister is the leader of the Cabinet. He presides over its meetings. He decides the agenda of its
meetings. In fact all matters in the Cabinet are decided with the approval and consent of the Prime
Minister. It is up to him to accept or reject proposals for discussions in the Cabinet. All ministers conform
to his views and policies. There is scope for deliberations and discussions but not for opposition
5. Removal of Ministers:
The Prime Minister can demand resignation from any minister at any time, and the latter has to accept the
wishes of the former. However, if any minister may fail to resign, the Prime Minister can get him
dismissed from the President.
6. Chief Link between the President and the Cabinet:
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The Prime Minister is the main channel of communication between the President and the Cabinet. He
communicates to the President all decisions of the Cabinet, and puts before the Cabinet the views of the
President. This is the sole privilege of the Prime Minister and no other minister can, of his own convey the
decisions or reveal to the President the nature or summary of the issues discussed in the Cabinet.
7. Chief Coordinator: The Prime Minister acts as the general manager of the state and the chief coordinator.
It is his responsibility to co-ordinate the activities of all the departments and to secure co-operation
amongst all government departments. He resolves all differences, among the ministers.
8. Leader of the Parliament:
As the leader of the majority in the Lok Sabha, the Prime Minister is also the leader of the Parliament. In
this capacity, it is the PM who, in consultation with the Speaker of this Lok Sabha, decides the agenda of
the House. The summoning and the proroguing of Parliament is in fact decided by him and the President
only acts upon his advice.
9. Power to get the Parliament Dissolved:
The Prime Minister has the power to advise the President in favour of a dissolution of the Lok Sabha. This
power of dissolution really means that the members hold their seats in the House at the mercy of the Prime
Minister.
10. Director of Foreign Affairs:
As the powerful and real head of the government, the Prime Minister always plays a key role in
determining Indian foreign policy and relations with other countries. He may or may not hold the portfolio
of foreign affairs but he always influences all foreign policy decisions.
11. Role as the Leader of the Nation:
Besides being the leader of his party and the Lok Sabha, Prime Minister is also the leader of the nation.
General elections are fought in his name. We know that it was the charismatic and charming personality of
Pt. Nehru that used to sweep popular votes in favour of the Congress party. The personality of the Prime
Minister and the respect and love, that he commands act as a source of strength for his party as well as the
nation. He leads the nation both in times of peace and war.
12. Power of Patronage:
All important appointments are really made by the Prime Minister. These appointments include Governors,
Attorney-General, Auditor General, Members and Chairman of Public Service Commission, Ambassadors,
Consular etc. All high ranking appointments and promotions are made by the President with the advice of
the Prime Minister.
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Role of Prime Minister during an Emergency:
The emergency powers of the President are in reality the powers of the Prime Minister. The President
declares an emergency only under the advice of the Cabinet, which in reality means the advice of the
Prime Minister. All decisions taken to meet an emergency are really the decisions of the Prime Minister.
The Prime Minister can get the imposition of Presidents rule in a State. The Presidential decision in
favour of imposing an emergency in a state is always governed by the decision of the Prime Minister and
his Cabinet.
Position of the Prime Minister
a) The office of PM is very powerful:
A study of the powers and functions of the Prime Minister clearly brings out the fact that he holds the most
powerful office in the Indian. He exercises real and formidable powers in all spheres of governmental
activityexecutive, legislative and financial. The Prime Minister is the captain of the ship of state, the key
stone of cabinet arch, the steering wheel of government, and the moon amongst lesser stars.
The whole organization and working of the Council of Ministers depend upon the Prime Minister. The
President always acts in accordance with the advice of the Prime Minister. The ministry-making is the sole
right of the Prime Minister. The resignation or removal of the Prime Minister always means the resignation
of the Council of Ministers. Hence, Prime Minister is the centre of gravity and the foundation stone of the
Council of Ministers.
b) The President of India always acts upon the advice of the PM:
The President always acts upon the advice of the Prime Minister. The constitution assigns to the latter the
role of being the chief advisor to the President. All the powers of the President, both the normal powers
and the emergency powers, are really the powers of the Prime Minister.
As the head of the government, leader of the Cabinet, leader of the majority, leader of the Parliament and
the leader of the nation, the Prime Minister plays an important an powerful role in the Indian Political
System. Indeed the Prime Minister occupies a very powerful rather the most powerful position in India.
c) The PM cannot become a dictator:
Undoubtedly, the Prime Minister of India enjoys a very strong position, yet he can neither be a dictator nor
even behave like a dictator. His office is a democratic office to which he rises only through an effective
participation in the democratic process.
The party to which the Prime Minister belongs, his own ministerial colleagues who are also his
competitors, the leaders of the opposition parties, the President of India, the Parliament, the Press, the
39 | P a g e
Constitution, and the public in general, all act as limitations upon him. These prevent him from becoming a
dictator and from acting in an arbitrary way. His personality and skills are continuously on test. Any failure
or lapse can cause his exit.
The office of the Prime Minister of India is a powerful democratic office. Its actual working depends upon
the personal qualities and political status of the person who holds this office. However no one can convert
his office into an authoritarian or dictatorial office. A person can remain Prime Minister only so long as he
follows democratic norms and values. ------------------------------
Centre State Relations

Introduction
The Constitution of India provides a dual polity with a clear division of powers between the Union and the
States, each being supreme within the sphere allotted to it. The Indian federation is not the result of an
agreement between independent units, and the units of Indian federation cannot leave the federation.
Thus the constitution contains elaborate provisions to regulate the various dimensions of the relations
between the centre and the states. The relations between centre and state are divides as:
Legislative relations
Administrative relations
Financialrelations
1. LEGISLATIVE RELATIONS Articles 245 to 255 in Part XI of the Constitution deal with the legislative
relations between the Centre and the State.
Extent of laws made by Parliament and by the Legislatures of States-The Parliament can make laws
for the whole or any part of the territory of India. Territory of India includes the states, UTs and any other
area for the time being included in the territory of India. Whereas, the state legislature can make laws for
whole or any part of state. The Parliament can alone make extra territorial legislation thus the laws of the
Parliament are applicable to the Indian citizens and their property in any part of the world.
Subject-matter of laws made by Parliament and by the Legislation of States-The Constitution divides
legislative authority between the Union and the States in three lists- the Union List, the State List and the
Concurrent List. The Union list consists of 99 items. The Union Parliament has exclusive authority to
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frame laws on subjects enumerated in the list. These include foreign affairs, defense, armed forces,
communications, posts and telegraph, foreign trade etc.
The State list consists of 61 subjects on which ordinarily the States alone can make laws. These include
public order, police, administration of justice, prison, local governments, agriculture etc. The Concurrent
list comprises of 52 items including criminal and civil procedure, marriage and divorce, economic and
special planning trade unions, electricity, newspapers, books, education, population control and family
planning etc. Both the Parliament and the State legislatures can make laws on subjects given in the
Concurrent list, but the Centre has a prior and supreme claim to legislate on current subjects. In case of
conflict between the law of the State and Union law on a subject in the Concurrent list, the law of the
Parliament prevails.
Residuary powers of legislation (Art.248)
The constitution also vests the residuary powers (subjects not enumerated in any of the three Lists) with
the Union Parliament. The residuary powers have been granted to the Union contrary to the convention in
other federations of the world, where the residuary powers are given to the States. However, in case of any
conflict, whether a particular matter falls under the residuary power or not is to be decided by the court.
Parliaments Power to Legislate on State List
Though under ordinary circumstances the Central Government does not possess power to legislate on
subjects enumerated in the State List, but under certain special conditions the Union Parliament can make
laws even on these subjects.
a) In the National Interest (Art.249)
If the Rajya Sabha declares by a resolution supported by not less than 2/3 of its members present and
voting, that it is necessary or expedient in the national interest that the Parliament should make laws with
respect to any matter enumerated in the State List (Art.249). After such a resolution is passed, Parliament
can make laws for the whole or any part of the territory of India. Such a resolution remains in force for a
period of 1 year and can be further extended by one year by means of a subsequent resolution.
b) Under Proclamation of National Emergency (Art.250)
Parliament can legislate on the subjects mentioned in the State List when the Proclamation of National
Emergency is in operation. However, the laws made by the Parliament under this provision shall cease to
have effect on the expiration of a period of six months after the Proclamation has ceased to operate, except
as respects things done or omitted to be done before the expiry of the said period.
c) By Agreement between States (Art. 252)
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The Parliament can also legislate on a State subject if the legislatures of two or more states resolve that it is
lawful of Parliament to make laws with respect to any matter enumerated in the State List relating to those
State. Thereafter, any act passed by the Parliament shall apply to such states and to any other state which
passes such a resolution. The Parliament also reserves the right to amend or repeal any such act.
d) To Implement Treaties (Art. 253) The Parliament can make law for the whole or any part of the
territory of India for implementing any treaty, international agreement or convention with any other
country or countries or any decision made at any international conference, association or other body. Any
law passed by the Parliament for this purpose cannot be invalidated on the ground that it relates to the
subject mentioned in the State list.
e) Under Proclamation of Presidents Rule (Art.356) The President can also authorize the Parliament to
exercise the powers of the State legislature during the Proclamation of Presidents Rule due to breakdown
of constitutional machinery in a state. But all such laws passed by the Parliament cease to operate six
months after the Proclamation of Presidents Rule comes to an end.
Centres control over State Legislation
The Constitution empowers the centre to exercise control over the states legislature in following ways:
a) The governor can reserve certain types of bills passed by the state legislature for the consideration of the
President. The President enjoys absolute veto over them.
b) Bills on certain matters enumerated in the State List can be introduced in the state legislature only with
the previous sanction of the President as imposing restrictions on freedom of trade and commerce.
c) The President can direct the states to reserve money bills and other financial bills passed by the state
legislature for his consideration during a financial emergency.
2. Administrative Relations- The administrative jurisdiction of the Union and the State Governments
extends to the subjects in the Union list and State list respectively. The Constitution thus defines the
clauses that deal with the administrative relations between Centre and States.
DURING NORMAL TIMES
1. Executive Powers of State be exercised in compliance with Union Laws: Article 256 lays down that
the executive power of every State shall be so exercised as to ensure compliance with the laws made by
Parliament and any existing laws which apply in that State, and the executive power of the Union shall
extend to the giving of such directions to a state as may appear to the Government of India to be necessary
for that purpose.
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2. Executive Powers of State not to interfere with Executive Power of Union: Article 257 of the
Constitution provides that the executive power of every state shall be so exercised as not to impede or
prejudice the exercise of the executive power of the Union, and the executive power of the Union shall
extend to giving of such directions to a state as may appear to the Government of India to be necessary for
that purpose. In short, the Union Government can issue directions to the state Government even with
regard to the subjects enumerated in the state list.
3. Maintain means of communication of National or Military importance: The Union Government can
give directions to the state with regard to construction and maintenance of the means of communication
declared to be of national or military importance.
4. Protection of the Railways: Union can issue State Governments necessary directions regarding the
measures to be taken for the protection of the railways within the jurisdiction of the State. It may be noted
that the expenses incurred by the State Governments for the discharge of these functions have to be
reimbursed by the Union Government.
5. To ensure welfare of Scheduled Tribes in the States: Union can direct the State Governments to
ensure execution of schemes essential for the welfare of the Scheduled Tribes in the States.
6. To secure instruction in the mother-tongue at the primary stage of education: Union can direct the
State Governments to secure the provision of adequate facilities for instruction in the mother-tongue at the
primary stage of education to children belonging to linguistic minority groups.
7. To ensure development of the Hindi language: Union can direct the State Governments to ensure the
development of the Hindi language.
8. To ensure government of a State is carried on in accordance with the provision of the
Constitution: Union can direct the State Governments to ensure that the government of a State is carried
on in accordance with the provision of the Constitution. If any State failed to comply with any directions
given by the Union in exercise of its executive power, then President may hold that, a situation has arisen
in which the Government of the State cannot be carried on in accordance with the provisions of the
Constitution. Thus he may proclaim Presidents Rule in that State.
9. Delegation of Unions function to State: The President of India can entrust to the officers of the State
certain functions of the Union Government. However, before doing so the President has to take the
consent of the state Government. But the Parliament can enact law authorizing the Central Government to
delegate its function to the State Governments or its officers irrespective of the consent of such State
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Government. On the other hand, a State may confer administrative functions upon the Union, with the
consent of the Union only.
10. Appointment of High Dignitaries: Union has major say in appointment and removal of Governor and
appointment of Judges of High Court and Members of State Public Service Commission.
11. All India Services: The presence of the All India Services - the Indian Administrative Services, Indian
police Services - further accords a predominant position to the Union Government. The members of these
services are recruited and appointment by the Union Public Service Commission. The members of these
services are posted on key posts in the states, but remain loyal to the Union Government.
12. Union to adjudicate Inter-State River Water Dispute: The Parliament has been vested with power
to adjudicate any dispute or complaint with respect to the use, distribution or control of the waters of, or in
any inter-state river or river-valley. In this regard, the Parliament also reserves the right to exclude such
disputes from the jurisdiction of the Supreme Court or other Courts.
DURING EMERGENCIES
1. Under Presidents Rule: The State Governments cannot ignore the directions of the Union
Government, otherwise the President can take the action against the Government of the State stating that
the administration cannot be carried on the accordance with the provisions of the Constitution and thus can
impose President's rule on the State. In such an eventuality the President shall assume to himself all or any
of the functions of the state Government.
2. Under Proclamation of National Emergency: During a Proclamation of National Emergency, the
power of the Union to give directions extends to the giving of directions as to the manner in with the
executive power of the State is to be exercised relating to any matter.
3. Under Proclamation of Financial Emergency: During a Proclamation of Financial Emergency, Union
can direct the State Governments to observe certain canons of financial propriety and to reduce the salaries
and allowances of all or any class of person serving in connection with the affairs of the Union including
the Judges of the Supreme Court and High Courts. Union also requires all Money Bills or Financial Bills to
be reserved for the consideration of the President after they are passed by the Legislature of the State.
It is thus, evident that in the administrative sphere the States cannot act in complete isolation and have to
work under the directions and in cooperation with the Center.
3. FINANCIAL RELATIONS
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Indian Constitution has made elaborate provisions, relating to the distribution of the taxes as well as non-
tax revenues and the power of borrowing, supplemented by provisions for grants-in-aid by the Union to the
States.
Article 268 to 293 deals with the provisions of financial relations between Centre and States.
The Constitution divides the taxing powers between the Centre and the states as follows:
The Parliament has exclusive power to levy taxes on subjects enumerated in the Union List, the state
legislature has exclusive power to levy taxes on subjects enumerated in the State List, both can levy taxes
on the subjects enumerated in Concurrent List whereas residuary power of taxation lies with Parliament
only.
The distribution of the tax-revenue between the Union and the States stands as follows:
a) Duties Levied by the Union but Collected and Appropriated by the States: Stamp duties on bills of
Exchange, etc., and Excise duties on medical and toilet preparations containing alcohol. These taxes dont
form the part of the Consolidated Fund of India, but are assigned to that state only.
b) Service Tax are Levied by the Centre but Collected and Appropriated by the Centre and the States.
c) Taxes Levied as Well as Collected by the Union, but Assigned to the States: These include taxes on the
sale and purchase of goods in the course of inter-state trade or commerce or the taxes on the consignment
of goods in the course of inter-state trade or commerce.
d) Taxes Levied and Collected by the Union and Distributed between Union and the States: Certain taxes
shall be levied as well as collected by the Union, but their proceeds shall be divided between the Union
and the States in a certain proportion, in order to effect on equitable division of the financial resources.
This category includes all taxes referred in Union List except the duties and taxes referred to in Article
268, 268-A and 269; surcharge on taxes and duties mentioned in Article 271 or any Cess levied for specific
purposes.
e) Surcharge on certain duties and taxes for purposes of the Union: Parliament may at any time increase
any of the duties or taxes referred in those articles by a surcharge for purposes of the Union and the whole
proceeds of any such surcharge shall form part the Consolidated Fund of India.
Grants-in-Aid Besides sharing of taxes between the Center and the States, the Constitution provides for
Grants-in-aid to the States from the Central resources. There are two types of grants:-
1. Statutory Grants
2. Discretionary Grants
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1. Statutory Grants: These grants are given by the Parliament out of the Consolidated Fund of India to
such States which are in need of assistance. Different States may be granted different sums. Specific grants
are also given to promote the welfare of scheduled tribes in a state or to raise the level of administration of
the Scheduled areas therein (Art.275).
2 Discretionary Grants. Center provides certain grants to the states on the recommendations of the
Planning Commission which are at the discretion of the Union Government. These are given to help the
state financially to fulfill plan targets (Art.282).
Effects of Emergency on Center-State Financial Relations:-
1. During National Emergency: The President by order can direct that all provisions regarding division
of taxes between Union and States and grants-in-aids remain suspended. However, such suspension shall
not go beyond the expiration of the financial year in which the Proclamation ceases to operate.
2. During Financial Emergency: Union can give directions to the States:-
a) To observe such canons of financial propriety as specified in the direction.
b) To reduce the salaries and allowances of all people serving in connection with the affairs of the State,
including High Courts judges.
c) To reserve for the consideration of the President all money and financial Bills, after they are passed by
the Legislature of the State.
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Doctrine of Pith and Substance

This post is concerned with a doctrine of similar sorts called as Doctrine of Pith and Substance. The
basic purpose of this doctrine is to determine under which head of power or field i.e. under which list
(given in the Seventh Schedule) a given piece of legislation falls.
Pith means true nature or essence of something and Substance means the most important or
essential part of something.
Doctrine of Pith and Substance says that where the question arises of determining whether a
particular law relates to a particular subject (mentioned in one List or another), the court looks to
the substance of the matter. Thus, if the substance falls within Union List, then the incidental
encroachment by the law on the State List does not make it invalid.
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This is essentially a Canadian Doctrine now firmly entrenched in the Indian Constitutional Jurisprudence.
This doctrine found its place first in the case of Cushing v. Dupey. In this case the Privy Council evolved
the doctrine, that for deciding whether an impugned legislation was intra vires, regard must be had to its
pith and substance.
Need for the Doctrine of Pith and Substance in the Indian Context
The doctrine has been applied in India also to provide a degree of flexibility in the otherwise rigid scheme
of distribution of powers. The reason for adoption of this doctrine is that if every legislation were to be
declared invalid on the grounds that it encroached powers, the powers of the legislature would be
drastically circumscribed.
It is settled law of interpretation that entries in the Seventh Schedule are not powers but fields of
legislation. The legislature derives its power from Article 246 and other related articles of the Constitution.
Therefore, the power to make the Amendment Act is derived not from the respective entries but under
Article 246 of the Constitution. The language of the respective entries should be given the widest scope of
their meaning, fairly capable to meet the machinery of the Government settled by the Constitution. Each
general word should extend to all ancillary or subsidiary matters which can fairly and reasonably be
comprehended in it. When the vires of an enactment is impugned, there is an initial presumption of its
constitutionality and if there is any difficulty in ascertaining the limits of the legislative power, the
difficulty must be resolved, as far as possible in favour of the legislature putting the most liberal
construction upon the legislative entry so that it may have the widest amplitude.
Incidental or Ancillary Encroachment

The case of Prafulla Kumar Mukherjee v. The Bank of Commerce (AIR-1947) succinctly explained the
situation in which a State Legislature dealing with any matter may incidentally affect any Item in the
Union List. The court held that whatever may be the ancillary or incidental effects of a Statute enacted by a
State Legislature, such a matter must be attributed to the Appropriate List according to its true nature and
character.
Thus, we see that if the encroachment by the State Legislature is only incidental in nature, it will not affect
the Competence of the State Legislature to enact the law in question. Also, if the substance of the
enactment falls within the Union List then the incidental encroachment by the enactment on the State List
would not make it invalid.
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However, the situation relating to Pith and Substance is a bit different with respect to the Concurrent List.
If a Law covered by an entry in the State List made by the State Legislature contains a provision which
directly and substantially relates to a matter enumerated in the Concurrent List and is repugnant to the
provisions of any existing law with respect to that matter in the Concurrent List, then the repugnant
provision in the State List may be void unless it can coexist and operate without repugnancy to the
provisions of the existing law.
Important Supreme Court Judgments on the Doctrine of Pith and Substance
There are hundreds of judgments that have applied this doctrine to ascertain the true nature of a legislation.
In the present post, I will discuss some of the prominent judgments of the Supreme Court of India that
have resorted to this doctrine.
1. The State of Bombay And Another vs F.N. Balsara(AIR-1951) - This is the first important judgment of
the Supreme Court that took recourse to the Doctrine of Pith and Substance. The court upheld the Doctrine
of Pith and Substance and said that it is important to ascertain the true nature and character of a legislation
for the purpose of determining the List under which it falls.
2. Mt. Atiqa Begam And Anr. v. Abdul Maghni Khan And Ors.(AIR-1940) The court held that in order
to decide whether the impugned Act falls under which entry, one has to ascertain the true nature and
character of the enactment i.e. its pith and substance. The court further said that it is the result of this
investigation, not the form alone which the statute may have assumed under the hand of the draughtsman,
that will determine within which of the Legislative Lists the legislation falls and for this purpose the
legislation must be scrutinized in its entirety.
3. Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Ors(AIR-2010) Pith and
Substance has been beautifully explained in this case:
This doctrine is applied when the legislative competence of the legislature with regard to a particular
enactment is challenged with reference to the entries in various lists. If there is a challenge to the
legislative competence, the courts will try to ascertain the pith and substance of such enactment on a
scrutiny of the Act in question. In this process, it is necessary for the courts to go into and examine the true
character of the enactment, its object, its scope and effect to find out whether the enactment in question is
genuinely referable to a field of the legislation allotted to the respective legislature under the constitutional
scheme.
This doctrine is an established principle of law in India recognized not only by this Court, but also by
various High Courts. Where a challenge is made to the constitutional validity of a particular State Act with
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reference to a subject mentioned in any entry in List I, the Court has to look to the substance of the State
Act and on such analysis and examination, if it is found that in the pith and substance, it falls under an
entry in the State List but there is only an incidental encroachment on any of the matters enumerated in the
Union List, the State Act would not become invalid merely because there is incidental encroachment on
any of the matters in the Union List.
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Doctrine of colorable Legislation

Doctrine of Colorable Legislation like any other constitutional law doctrine is a tool devised and applied
by the Supreme Court of India to interpret various Constitutional Provisions. It is a guiding principle of
immense utility while construing provisions relating to legislative competence.
Origin
Before knowing what this doctrine is and how it is applied in India, let us first understand the genesis of
Doctrine of Colorable Legislation.
Doctrine of Colorable Legislation is built upon the founding stones of the Doctrine of Separation of Power.
Separation of Power mandates that a balance of power is to be struck between the different components of
the State i.e. between the Legislature, the Executive and the Judiciary. The Primary Function of the
legislature is to make laws. Whenever, Legislature tries to shift this balance of power towards itself then
the Doctrine of Colorable Legislation is attracted to take care of Legislative Accountability.
Definition
Blacks Law Dictionary defines Colorable as:
1. Appearing to be true, valid or right.
2. Intended to deceive; counterfeit.
3. Color has been defined to mean Appearance, guise or semblance.
The literal meaning of Colorable Legislation is that under the color or guise of power conferred for one
particular purpose, the legislature cannot seek to achieve some other purpose which it is otherwise not
competent to legislate on.
Maxim- This Doctrine also traces its origin to a Latin Maxim:
Quando aliquid prohibetur ex directo, prohibetur et per obliquum
This maxim implies that when anything is prohibited directly, it is also prohibited indirectly. In common
parlance, it is meant to be understood as Whatever legislature cant do directly, it cant do indirectly.
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In our Constitution, this doctrine is usually applied to Article 246 which has demarcated the Legislative
Competence of the Parliament and the State Legislative Assemblies by outlining the different subjects
under List I for the Union, List II for the States and List III for both, as mentioned in the Seventh Schedule.
This doctrine comes into play when a Legislature does not possess the power to make law upon a
particular subject but nonetheless indirectly makes one. By applying this principle the fate of the Impugned
Legislation is decided.
Supreme Court on Colorable Legislation

One of the most cogent and lucid explanations relating to this doctrine was given in the case of K.C.
Gajapati Narayana Deo And Other v. The State Of Orissa(AIR-1953):
If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act
within their respective spheres marked out by specific legislative entries, or if there are limitations on the
legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a
particular case has or has not, in respect to the subject-matter of the statute or in the method of enacting it,
transgressed the limits of its constitutional powers.
Such transgression may be patent, manifest or direct, but it may also be disguised, covert and indirect and
it is to this latter class of cases that the expression Colorable Legislation has been applied in certain
judicial pronouncements. The idea conveyed by the expression is that although apparently a legislature in
passing a statute purported to act within the limits of its powers, yet in substance and in reality it
transgressed these powers, the transgression being veiled by what appears, on proper examination, to be a
mere presence or disguise.
This Doctrine is also called as Fraud on the Constitution. The failure to comply with a Constitutional
condition for the exercise of legislative power may be overt or it may be covert. When it is overt, we say
the law is obviously bad for non- compliance with the requirements of the Constitution, that is to say, the
law is ultra vires. When, however, the non-compliance is covert, we say that it is a fraud on the
Constitution, the fraud complained of being that the Legislature pretends to act within its power while in
fact it is not so doing. Therefore, the charge of fraud on the Constitution is, on ultimate analysis, nothing
but a picturesque and epigrammatic way of expressing the idea of non-compliance with the terms of the
Constitution.
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Limitations on the Application of Doctrine of Colorable Legislation

1. The doctrine has no application where the powers of a Legislature are not fettered by any Constitutional
limitation.
2. The doctrine is also not applicable to Subordinate Legislation.
3. The doctrine of colourable legislation does not involve any question of bona fides or mala fides on the
part of the legislature. The whole doctrine resolves itself into the, question of competency of a particular
legislature to enact a particular law.
If the legislature is competent to pass a particular law, the motives which impelled it to act are really
irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at
all. Whether a statute is constitutional or not is thus always a question of power[.
4. A logical corollary of the above-mentioned point is that the Legislature does not act on Extraneous
Considerations. There is always a Presumption of Constitutionality in favour of the Statute. The principle
of Presumption of Constitutionality was succinctly enunciated by a Constitutional Bench in Ram Krishna
Dalmia v. Shri Justice S.R. Tendolkar and Ors.(AIR 1957)
That there is always a presumption in favour of the constitutionality of an enactment and the burden is
upon him who attacks it to show that there has been a clear transgression of the constitutional principles.
There is a very famous rule of interpretation as well that explains why the courts strongly lean against a
construction which reduces the statute to a futility. The Latin Maxim construction ut res magis valeat
quam pereat implies that a statute or any enacting provision therein must be so construed as to make it
effective and operative. The courts prefer construction which keeps the statute within the competence of
the legislature.
5. When a Legislature has the Power to make Law with respect to a particular subject, it also has all the
ancillary and incidental power to make that law an effective one.
6. As already discussed above that the transgression of Constitutional Power by Legislature may be patent,
manifest or direct, but may also be disguised, covert and indirect and it is only to this latter class of cases
that the expression Colorable Legislation is being applied.-------------------------------------------------
Doctrine of Repugnancy
Introduction
It is Article 254 of the Constitution of India that firmly entrenches the Doctrine of Repugnancy in India.
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According to Blacks Law Dictionary, Repugnancy could be defined as an inconsistency or
contradiction between two or more parts of a legal instrument (such as a statute or a contract). Before
understanding the Doctrine of Repugnancy, let us first understand a bit about the legislative scheme
envisaged in our Constitution.
Article 245 states that Parliament may make laws for whole or any part of India and the Legislature of a
State may make laws for whole or any part of the State. It further states that no law made by Parliament
shall be deemed to be invalid on the ground that it would have extra-territorial operation.
Article 246 also talks about Legislative power of the Parliament and the Legislature of a State. It states
that:
1. The Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I
or the Union List in the Seventh Schedule.
2. The Legislature of any State has exclusive power to make laws for such state with respect to any of the
matters enumerated in List II or the State List in the Seventh Schedule.
3. The Parliament and the Legislature of any State have power to make laws with respect to any of the
matters enumerated in the List III or Concurrent List in the Seventh Schedule.
4. Parliament has power to make laws with respect to any matter for any part of the territory of India not
included in a State notwithstanding that such matter is a matter enumerated in the State List.
Supreme Courts Interpretation of Doctrine of Repugnancy
Article 254 has been beautifully summarized by the Supreme Court in M. Karunanidhi v. Union of
India(AIR-1979). The court said that:
1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and
are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the
repugnancy.
2. Where however a law passed by the State comes into collision with a law passed by Parliament on an
Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions
of the Central Act would become void provided the State Act has been passed in accordance with clause
(2) of Article 254.
3. Where a law passed by the State Legislature while being substantially within the scope of the entries in
the State List entrenches upon any of the Entries in the Central List, the constitutionality of the law may be
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upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it
appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is
purely incidental or inconsequential.
4. Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is
inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by
obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the
assent of the President would be that so far as the State Act is concerned, it will prevail in the State and
overrule the provisions of the Central Act in their applicability to the State only.
Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending,
varying or repealing the law made by the State Legislature under the proviso to Article 254.
Conditions
Now, the conditions which must be satisfied before any repugnancy could arise are as follows:
1. That there is a clear and direct inconsistency between the Central Act and the State Act.
2. That such an inconsistency is absolutely irreconcilable.
3. That the inconsistency between the provisions of the two Acts is of such nature as to bring the two Acts
into direct collision with each other and a situation is reached where it is impossible to obey the one
without disobeying the other.
Thereafter, the court laid down following propositions in this respect:
1. That in order to decide the question of repugnancy it must be shown that the two enactments contain
inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field.
2. That there can be no repeal by implication unless the inconsistency appears on the face of the two
statutes.
3. That where the two statutes occupy a particular field, but there is room or possibility of both the statutes
operating in the same field without coming into collision with each other, no repugnancy results.
4. That where there is no inconsistency but a statute occupying the same field seeks to create distinct and
separate offences, no question of repugnancy arises and both the statutes continue to operate in the same
field.
Further in the case of Govt. of A.P. v. J.B. Educational Society(AIR-1998),the court held that:
1. There is no doubt that both Parliament and the State Legislature are supreme in their respective
assigned fields. It is the duty of the court to interpret the legislations made by Parliament and the State
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Legislature in such a manner as to avoid any conflict. However, if the conflict is unavoidable, and the two
enactments are irreconcilable, then by the force of the non obstante clause in clause (1) of Article 246, the
parliamentary legislation would prevail notwithstanding the exclusive power of the State Legislature to
make a law with respect to a matter enumerated in the State List.
2. With respect to matters enumerated in List III (Concurrent List), both Parliament and the State
Legislature have equal competence to legislate. Here again, the courts are charged with the duty of
interpreting the enactments of Parliament and the State Legislature in such manner as to avoid a conflict. If
the conflict becomes unavoidable, then Article 245 indicates the manner of resolution of such a conflict.
The Court also said that:
1. Where the legislations, though enacted with respect to matters in their allotted sphere, overlap and
conflict. Second, where the two legislations are with respect to matters in the Concurrent List and there is a
conflict. In both the situations, parliamentary legislation will predominate, in the first, by virtue of the non
obstante clause in Article 246(1), in the second, by reason of Article 254(1).
2. Clause (2) of Article 254 deals with a situation where the State legislation having been reserved and
having obtained President's assent, prevails in that State; this again is subject to the proviso that Parliament
can again bring a legislation to override even such State legislation.
In the case of National Engg. Industries Ltd. v. Shri Kishan Bhageria(AIR 1988), it was held that the
best test of repugnancy is that if one prevails, the other cannot prevail. All the above mentioned cases
have been upheld by the Supreme Court in Zameer Ahmed Latifur Rehman Sheikh v. State of
Maharashtra.
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Territorial Nexus and the Parliament
1. Article 245 (2) of the Constitution of India makes it amply clear that No law made by Parliament shall
be deemed to be invalid on the ground that it would have extra-territorial operation. Thus legislation
cannot be questioned on the ground that it has extra-territorial operation.
2. It is well-established that the Courts of our country must enforce the law with the machinery available to
them; and they are not entitled to question the authority of the Legislature in making a law which is extra-
territorial.
3. Extra-territorial operation does not invalidate a law. But some nexus with India may still be necessary in
some of the cases such as those involving taxation statutes.
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Territorial Nexus and the State Legislature

The Legislature of a State may make laws for the whole or any part of the Stat. Now, this leaves it open to
scrutiny whether a particular law is really within the competence of the State Legislature enacting it. There
are plethora of cases that have stated that the laws which a state is empowered to make must be for the
purpose of that State.
Conditions
Thus, the Doctrine of Territorial Nexus has been applied to the States as well. There are two conditions
that have been laid down in this respect:
1. The Connection (nexus) must be real and not illusory.
2. The liability sought to be imposed must be pertinent to that connection.
If the above two conditions are satisfied, any further examination of the sufficiency of Nexus cannot be a
matter of consideration before the courts.
In various cases relating to taxation statutes, the courts have time and again stated that it is not necessary
that the sale or purchase should take place within the Territorial Limits of the State. Broadly speaking local
activities of buying or selling carried in the State in relation to local goods would be sufficient basis to
sustain the taxing power of the State, provided of course, such activities ultimately result in concluded sale
or purchase to be taxed
There is also a Presumption of Constitutionality that the Legislature is presumed not to have exceeded its
constitutional powers and a construction consistent with those powers is to be put upon the laws enacted by
the Legislature.
Extra-Territorial Operation
It is well-established that the Parliament is empowered to make laws with respect to aspects or causes that
occur, arise or exist, or maybe expected to do so, within the territory of India and also with respect to
extra-territorial aspects or causes that have an impact or nexus with India.
Such laws would fall within the meaning, purport and ambit of grant of powers of Parliament to make
laws for the whole or any part of the territory of India and they may not be invalidated on the ground that
they require extra territorial operation. Any laws enacted by the Parliament with respect to extra territorial
aspects or causes that have no nexus with India would be ultra vires and would be laws made for a foreign
territory.
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This clearly indicates that as long as the law enacted by the Parliament has a nexus with India, even if such
laws require extra territorial operation, the laws so enacted cannot be said to constitutionally invalid. It is
only when the laws enacted by the Parliament with respect to extra territorial aspects or causes that have
no nexus with India that such laws would be ultra vires.
What is an acceptable Nexus is again a subjective question. Professor Michael Lang in his book
Introduction to the Law of Double Taxation Conventions says that in International law practice, there
are no significant limits on the tax sovereignty of states. In designing the domestic personal tax law, the
national legislator can even tax situations when, for example, only a "genuine link" exists. It is only
when neither the person nor the transaction has any connection with the taxing state that tax cannot be
levied.
In granting the Parliament the powers to legislate for India, and consequently also with respect to extra-
territorial aspects or causes, the framers of our Constitution certainly intended that there be limits as to the
manner in which, and the extent to which, the organs of the State, including the Parliament, may take
cognizance of extra-territorial aspects or causes, and exert the State powers (which are the powers of the
collective) on such aspects or causes.
Doctrine of Public Trust requires that all legislation by the Parliament with respect to extra-territorial
aspects or causes be imbued with the purpose of protecting the interests of, the welfare of and the security
of India, along with Article 51, a Directive Principle of State Policy, though not enforceable in a court of
law, nevertheless fundamental to governance, lends unambiguous support to the conclusion that Parliament
may not enact laws with respect to extra-territorial aspects or causes, wherein such aspects or causes have
no nexus whatsoever with India.
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Doctrine of Occupied Field
Introduction
The best test of repugnancy is that if one prevails, the other cannot prevail. Article 254 deals with various
situations that could give rise to repugnancy.
In the present post, we will discuss a similar doctrine called as doctrine of Occupied Field. There is a very
thin of line of difference between doctrine of Repugnancy and Doctrine of Occupied Field. As we know
that repugnance arises only if there is an actual conflict between two legislations, one enacted by the State
Legislature and the other by Parliament, both of which were competent to do so.
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On the other hand, doctrine of Occupied Field simply refers to those legislative entries of State List, which
are expressly made subject to a corresponding Entry in either the Union List or the Concurrent List.
Doctrine of Occupied Field has nothing to do with the conflict of laws between the state and the centre. It
is merely concerned with the existence of legislative power whereas repugnance is concerned with the
exercise of legislative power that is shown to exist.
Doctrine of Occupied Field comes into picture even before the Union Law or the State Law has
commenced. Under Article 254, as soon as a Union law receives assent of the President, it is said to be a
law made by the Parliament. Actual commencement of the law is not important for the purpose of
attracting doctrine of Occupied Field.
The Curious Case of State of Kerala v. Mar Appraem Kuri
Let us understand this doctrine with the help of a famous case. In the case of State of Kerala & Ors v. M/S.
Mar Appraem Kuri Co.Ltd. & Anr(AIR-2012), the Centre enacted the Chit Funds Act (Central Act). For
the Law to become operative in any state, the Central Government would have to issue a notification under
Section 3 of the Central Act. In the meantime, the State of Kerala enacted a separate act on Chit Funds
called as Kerala Chitties Act. However, the Central Act did not get notified in Kerala resulting into a
situation wherein there was only one Act in force in the State of Kerala i.e. the Kerala Chitties Act. It was
contended that the Kerala Chitties Act was repugnant to the un-Notified Central Act. The Supreme Court
held that even an un-notified Central law attracts art 254.
The reasoning given by the Supreme Court was that the Central Enactment covered the entire field of
Chit Funds under the Concurrent List. Even though the Central Chit Funds Act was not brought in force
in the State of Kerala, it is still a law made, which is alive as an existing law.
The Court emphasized that Article 254 uses the verb made and the making. Thus, the making of a law
is complete, even before that law is notified. The court also said that:
The verb make or the verb made is equivalent to the expression to legislate. The importance of this
discussion is to show that the Constitution framers have deliberately used the word made or make in the
above Articles.
Our Constitution gives supremacy to the Parliament in the matter of making of the laws or legislating with
respect to matters delineated in the three Lists. The principle of supremacy of the Parliament, the
distribution of legislative powers, the principle of exhaustive enumeration of matters in the three Lists are
all to be seen in the context of making of laws and not in the context of commencement of the laws.
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Thus, the State Legislature is denuded of Legislative Competence as soon as the Parliament, by enacting
the Central Act, intended to occupy the entire field of Chit Funds under the Concurrent List.
Last Word
1. We can easily see that the line of difference between Repugnance and Occupied Field is very thin.
Where Occupied Fields ends, repugnancy starts. Parliament is indeed the supreme Law-Making body
under our Constitutional Scheme. Normally, the Courts try to construe a Central Law and a State Law
harmoniously. However, when the Parliament tries to occupy the field of the State Law, it is the Central
Law that is to prevail.
2. The question of repugnance is separate one. Whether the whole State law or only a particular provision
is repugnant to the Central Law is a question that is to be decided after deciding whether the Parliament
has really occupied the field of the State Law.
3. Once it is made sure that the Parliament intends to legislate over a particular field on which the State has
already legislated, the repugnancy kicks in. To what extent is the repugnancy is a subjective question.
4. The intention of the Parliament can be either express or implied. Express intention can be shown
explicitly by enacting a Central Law to repeal a State Law. Implied Intention is slightly more convoluted.
Implied Intention can be shown by enacting a Central Law on a subject on which the State has already
legislated. By enacting such a Central Legislation, it will be implied that the Parliament intends to occupy
a particular field and strip the State Legislature of its power to legislate in this respect.
--------------------------------
Consolidated Fund of India

Art- 266- Under Article 266 (1) of the Constitution of India, all revenues ( example tax revenue from
personal income tax, corporate income tax, customs and excise duties as well as non-tax revenue such as
licence fees, dividends and profits from public sector undertakings etc. ) received by the Union
government as well as all loans raised by issue of treasury bills, internal and external loans and all moneys
received by the Union Government in repayment of loans shall form a consolidated fund entitled the
'Consolidated Fund of India' for the Union Government.
Similarly, under Article 266 (1) of the Constitution of India, a Consolidated Fund Of State ( a separate
fund for each state) has been established where all revenues ( both tax revenues such as Sales tax/VAT,
stamp duty etc..and non-tax revenues such as user charges levied by State governments ) received by the
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State government as well as all loans raised by issue of treasury bills, internal and external loans and all
moneys received by the State Government in repayment of loans shall form part of the fund.
The Comptroller and Auditor General of India audits these Funds and reports to the Union/State
legislatures when proper accounting procedures have not been followed.
Contingency Fund of India
The Contingency Fund of India established under Article 267 (1) of the Constitution is in the nature of an
imprest (money maintained for a specific purpose) which is placed at the disposal of the President to
enable him/her to make advances to meet urgent unforeseen expenditure, pending authorization by the
Parliament. Approval of the legislature for such expenditure and for withdrawal of an equivalent amount
from the Consolidated Fund is subsequently obtained to ensure that the corpus of the Contingency Fund
remains intact. The corpus for Union Government at present is Rs 500 crore (Rs 5 billion) and is enhanced
from time to time by the Union Legislature. The Ministry of Finance operates this Fund on behalf of the
President of India.
Similarly, Contingency Fund of each State Government is established under Article 267(2) of the
Constitution this is in the nature of an imprest placed at the disposal of the Governor to enable him/her to
make advances to meet urgent unforeseen expenditure, pending authorization by the State Legislature.
Approval of the Legislature for such expenditure and for withdrawal of an equivalent amount from the
Consolidated Fund is subsequently obtained, whereupon the advances from the Contingency Fund are
recouped to the Fund. The corpus varies across states and the quantum is decided by the State legislatures.
----------------------------------
Finance commission-
Introduction-
The Finance Commission of India came into existence in 1951. It was established under Article 280 of the
Indian Constitution by the President of India. It was formed to define the financial relations between the
centre and the state. The Finance Commission Act of 1951 states the terms of qualification, appointment
and disqualification, the term, eligibility and powers of the Finance Commission. As per the Constitution,
the Finance Commission is appointed every five years and consists of a chairman and four other members.
Since the institution of the first finance commission, stark changes have occurred in the Indian economy
causing changes in the macroeconomic scenario. This has led to major changes in the Finance
Commissions recommendations over the years. Till date, Thirteen Finance Commissions have submitted
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their reports. Now the 14th Finance Commission has come into the existence. The Chairman of present
Finance Commission is Y.V.Reddy.
History: Finance Commission of India

The Indian State, like all other federations, is also ridden by the problems of Vertical and Horizontal
Imbalances. Vertical Imbalances result because states are assigned responsibilities and in the process of
fulfilling those, they incur expenditures disproportionate to their sources of revenue. This is because the
states are able to gauge the needs and concerns of their people more effectively, and hence, are more
efficient in addressing them. Factors like historical backgrounds, differences in resource endowments etc.
lead to widening Horizontal Imbalances. The Constitution of India, in recognition of these two problems,
has made several provisions to bridge the gap of finances between the Centre and the States. These include
various articles in the constitution like Article 268, which facilitates levy of duties by the Centre but equips
the states to collect and retain the same. Similarly, there are Articles 269, 270, 275, 282 and 293 all of
which specify ways and means of sharing resources between Union and States. Apart from the above-
mentioned provisions, The Indian Constitution provides an institutional framework to facilitate Centre-
State Transfers. This body is the Finance Commission, which came into existence in 1951, under Article
280 of the Indian Constitution, which states:
1. The President will constitute a Finance Commission within two years from the commencement of the
Constitution and thereafter and at the end of every fifth year or earlier, as the deemed necessary by
him/her, which shall include a Chairman and four other members.
2. Parliament may by law determine the requisite qualifications for appointment as members of the
Commission and the procedure of selection.
3. The Commission is constituted to make recommendations to the President about the distribution of
the net proceeds of taxes between the Union and States and also the allocation of the same amongst the
States themselves. It is also under the ambit of the Finance Commission to define the financial relations
between the Union and the States. They also deal with devolution of non-plan revenue resources.
Functions
Functions of the Finance Commission can be explicitly stated as:
1. Distribution of net proceeds of taxes between Centre and the States, to be divided as per their
respective contributions to the taxes.
2. Determine factors governing Grants-in Aid to the states and the magnitude of the same.
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3. Work with the State Finance Commissions and suggest measures to augment the Consolidated Fund
of the States so as to provide additional resources to Panchayats and Municipalities in the state.
----------------------------------------
Que. Discuss the tortuous liability of the state. Or

Discuss the Art 300 in reference of liability of the state from the wrongful acts of servants. Or
The doctrine of sovereign immunity is also vanished in the modern era. Clear the above statement in
the light of Indian situation with decided cases.
Ans. Tortuous Liability of State Because tort is not a codified law, thats why tortious liability of state
arises from constitution of India.
Art 300 of Indian Constitution provides that The government of India may sue or be sued by the name
of the union of India & government of a state may sue or sued by the name of state.
Related cases The 1st case in which the principle that the government is liable for the tort of its servants
in the course of transaction which any private person can engage in was laid down by Peacock C.J, of the
Bombay High Court in Penisular & Oriental navigation comp Vs Secretary of state for India (PONC
Case). Sir Peacock, C.J. for the 1st time drew a distinction between sovereign & non-sovereign function
of the government. According to him sovereign function are those which government alone & none else is
authorized to perform & which cant be allowed to be perform by private persons, but if the nature of the
act is such that if it were committed by a private person, he would have been made liable, then if the same
is performed by the government, through their servants, there is no reason why they should not be held
liable.
In the State of Rajasthan Vs Vidhyawati (AIR1962) (B.P. Sinha, J), it was held that it was impossible by
reason of the maximthe king can do no wrong to sue the crown in England. But the above maxim is not
applicable in India, so government will be liable for the torts committed by its servant.
In Kasturi Lal Vs State of UP (AIR 1965), (Gajendergadkar, C.J.) SC held that where a tortious act is
committed by a public servant in discharge of statutory function which are preferable to the delegation of
sovereign powers of the state the action for damages for loss caused by such tortious act will not lie.
No Distinction between Sovereign & Non-Sovereign Acts In N. Nagendra Roa Vs State of Andhra
Pradesh (AIR 1994), it was held that in the modern era, barring function such as administration of justice,
maintenance of law & order and repression of crime etc, which are among the primary and in alienable
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function of a constitutional government, the state cant claim any immunity. The doctrine of sovereign
immunity has been outdated now.
In Rudal Shah Vs State of Bihar (AIR1983), the court for the 1st time held that state or its authorities who
violate any persons right to life & liberty as envisaged by Art 21 of the constitution, in course of discharge
of official duties cant claim immunity of sovereign functions in their defence.
In Chariman Railway Board Vs Chandrima Das (AIR-2000), it was held that since art 21 of the
constitution includes both Indian & foreigners, so state cant claim immunity of sovereign functions in the
matter where tort is committed against the foreigners.
---------------------------------------
Freedom of Trade Commerce and Intercourse

Introduction
The constitution makers desired to promote free flow of trade and commerce in India as they fully realized
that economic unity and integration of the country provided the main sustaining force for the stability and
progress of the political and cultural unity of the federal polity, and that the country should function as one
single economic unit without barriers on internal trade. In order to ensure that the state legislatures
subjected to local and regional pulls do not create trade barriers in future, Article 301 was incorporated in
the constitution. According to this provision, "trade, commerce and intercourse throughout the territory of
India shall be free".
Legislative history
Article 301 and Section 297 of the Govt. of India Act, 1935 The content of freedom provided for by
Article 301 is larger than the freedom contemplated by section 297 of the Government of India Act, 1935.
the supreme court pointed out that the observations of the scope of Section 297 and Article 301 did not fall
for consideration in an earlier and the observations therein could not be treated to restrict the scope of
Article 301.
Comparisons Between Australia And India Though Article 301 of the Indian Constitution has been
adopted from Section 92 of the Australian Constitution, still there are some apparent distinctions
between the two. Firstly, in the historical context, Section 92 of the Australian Constitution was intended
to abolish State custom barriers. However, as a result of judicial decisions, it applies to both the
Commonwealth as well as the States. This was recognised in the decision of James vs. Commonwealth of
Australiain which a Commonwealth statute requiring a licence for inter-state shipments of dried fruits was
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declared unconstitutional by the Privy Council. On the other hand, in India, Article 301 of the Constitution
includes both the freedom of inter-state and intra-state i.e; within the territory of State trade and commerce.
That is, it imposes a restriction on the legislative power of both Parliament and the State Legislature.
Secondly, the presence of the word absolutely free in the Australian Constitution presented many
difficulties. Trade and commerce could not be regulated by the centre. The restriction was to be spelled out
by the Court whereas; in India the Constitution itself lays down restrictions on Article 301. The restrictions
are contained in Article 302 to 305. This is necessary because no freedom is absolute but regulated and
relative. Thirdly, Australian Constitution did not have any provision like 19(1)(g) of the Indian
Constitution.
Content of Article 301 The scope and content of Article 301 depends on the interpretations of three
expressions used therein, viz., 'trade, commerce and intercourse', 'free' and 'throughout the territory
of India'.
Trade, commerce and intercourse The framers of the Indian constitution, instead of leaving the idea of
'intercourse' to be implied by the process of judicial pronouncements, expressly incorporated the same in
Article 301. The words trade and commerce have been broadly interpreted. In most of the cases, the accent
has been on the movement aspect. For example, in the Atiabari Tea Co. v. State of Assam case (AIR-
1960), the court emphasized : "whatever else it (Art.301) may or may not include, it certainly includes
movement of trade which is of the very essence of all trade and is its integral part," and, further, that
"primarily it is the movement part of the trade" which Article 301 has in its mind, that "the movement or
the transport of the trade must be free," and that "it is the free movement or the transport of goods from one
part of the country to the other that is intended to be saved."
Again, in State of Madras v. Nataraja Mudaliar (AIR1968) the court stated that "all restrictions which
directly and immediately affect the movement of trade are declared by Article 301 to be ineffective."
Nevertheless cases are not wanting where movement has not been involved but other aspects of trade and
commerce have been involved. The view now appears to be fairly settled that the sweep of the concept
'trade, commerce and intercourse' is very wide and that the word trade alone, even in its narrow sense,
would include all activities in relation to buying and selling, or the interchange or exchange of
commodities and that movement from place to place is the very soul of such trading activities.
In Koteswar v. K.R.B. & Co.(AIR-1969) a restriction on forward contracts was held to be violative of
Article 301.The supreme court held that a power conferred on the state government to make an order
providing for regulating or prohibiting any class of commercial or financial transactions relating to any
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essential Article, clearly permits restrictions on freedom of trade and commerce and, therefore, its validity
has to be assessed with reference to Article 304(b).
In District Collector, Hyderabad v. Ibrahim(AIR-1970) ,the Supreme Court has invalidated under Article
301 an attempt by a state to create by an administrative order a monopoly to deal in sugar in favour of
cooperative societies. The order was issued while the proclamation of emergency was operative and so
Article 19 (1)(g) could not be invoked. The court therefore took recourse to Article 301.
After an elaborate study of the scope of the meaning of these words, it can be said that the word "trade"
cannot be confined to the movement of goods but extends to transactions linked with merchandise or flow
of goods, the promotion of buying and selling, advances, borrowings, discounting bills and mercantile
documents, banking and other forums of supply of funds. Money lending and trade financing also
constitutes trade.
Free
The word 'free' in Article 301 cannot mean an absolute freedom or that each and every restriction on trade
and commerce is invalid.
Throughout the territory of India The view is definitely held now that Article 301 applies not only to
interstate but also to intrastate trade and commerce, i.e. trade within the state. Therefore, it means freedom
of trade commerce and intercourse is there within the state and/or outside the state and/or any part within
the territory of India.
Regulatory and Compensatory Tax To smoothen the movement of interstate trade and commerce, the
state has to provide many facilities by way of roads etc.. The concept of regulatory and compensatory
taxation has been evolved with a view to reconcile the freedom of trade and commerce guaranteed by Art.
301 with the need to tax such trade at least to the extent of making it pay for the facilities provided to it by
the state, e.g., a road net-work. If a charge is imposed not for the purpose of obtaining a proper
contribution to the maintenance and upkeep of the road, but for the purpose of adversely affecting trade or
commerce, then it would amount to, a restriction on the freedom of trade, commerce and intercourse
The concept of regulatory and compensatory taxation has been applied by the Indian courts to the state
taxation under entries 56 and 57 of List II.
Atiabari Tea Co. v. State of Assam, Facts: A tax levied by the State of Assam on the carriage of tea by
road or inland waterways was held bad for "the transport or movement of goods is taxed solely on the basis
that the goods are thus carried or transported, and thus "directly affects the freedom of trade as
contemplated by Art. 301."
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The Supreme Court took the view that the freedom guaranteed by Art. 301 would become illusory if the
movement, transport, or the carrying of goods were allowed to be impeded, obstructed or hampered by the
taxation without satisfying the requirements of Art. 302 to 304. The court did not take into consideration
the quantum .of tax burden which by no means was excessive. Simply because the tax was levied on
'movement' of goods, from one place to another, it was held to offend Art. 301.
The view propounded in Atiabari was bound to have great adverse effect upon the financial autonomy of
the states. It would have rendered their taxing power under entries 56 and 57, List II.
Accordingly, the matter came to be re-considered by the Supreme Court in
Automobile Transport v. Rajasthan (AIR-1962) The court ruled that the tax was not hit by Art. 301, as it
was a compensatory tax having been levied for use of the roads provided for and maintained by the state.
Thus, to this extent, the majority view in Atiabari was now overruled by Automobile.
Since then the concept of regulatory and compensatory taxes has become established in India with
reference to entries 56 and 57, List II, and the concept has been applied in several cases, and progressively
the courts have liberalised the concept so as to permit state taxation at a higher level.
Direct and immediate restrictions The restrictions which will attract Article 301 must be those which
directly and immediately restrict or impede the free flow or movement of trade. Only those taxes which
directly and immediately restrict trade would fall within the purview of Article 301. the rational and
workable test to apply would be: does the impugned restrictions operate directly or immediately on trade
or its movement? what is prohibited is a tax whose direct effect is to hinder the movement of trade.
Restriction on freedom of trade, commerce and intercourse throughout the territory of India cannot be
justified unless they fall within Article 304.
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.
One view is that while Article 19(1)(g) deals with the right of the individuals, Article 301 provides
safeguards for the carrying on trade as a whole distinguished from an individuals right to do the same. This
view is hardly tenable. Article 301 is based on section 92 of the Australian constitution which has been
held to compromise rights of the individual as well, and the same should be the position in India. In actual
practice, the view has never been enforced and individuals have challenged legislation on the ground of its
effect on their right to carry on trade and commerce. The supreme court has denounced the theory that
Article 301 guarantees freedom "in abstract and not of the individuals."
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A difference between Arts. 19(1)(g) and 301, it has been said, is that Art. 301 could be invoked only when
an individual, is prevented from sending his goods across the state, or from one point to another in the
same state, while Art. 19(1)(g) can be invoked when the complaint is with regard to the right of an
individual to carryon business unrelated to, or irrespective of, the movement of goods, i.e., while Art. 301
contemplates the right of trade in motion, Art. 19(1)(g) secures the right at rest.
Art. 301 covers many interferences with trade and commerce which may not ordinarily come within Art.
19(1)(g),
Freedom of trade and commerce is a wider concept than that of an individual's freedom to trade guaranteed
by Art. 19(1)(g).
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, discussed below. In emergency, Art. 19(1)(g) is suspended and so courts may take recourse to Art.
301 to adjudge the validity of a restriction on commerce.
In certain situations, only one of the two may be relevant, as for example when there is no direct burden on
a trade but it may be a restriction in terms of Art. 19(1)(g) read with Art. 19(6). In some other situations,
both provisions may become applicable and it may be possible to invoke them both.
Art. 301 is a mandatory provision and a law contravening the same is ultra vires, but it is not a
fundamental right and hence is not enforceable under Article 32 . But if the right under Article 19(1)(g) is
also infringed, then Article 32 petition may lie.
Is this freedom an absolute one A question arises here that whether the freedom of trade, commerce and
intercourse is an absolute freedom or does it having any restrictions on it? For an absolute freedom of
trade, commerce and intercourse may lead to economic confusion and misuse of the same. Therefore the
wide amplitude of the freedom granted by Article 301 is limited by Articles 302-305. the exceptions to
Article 301 are:
a. Parliament is given power to regulate trade and commerce in public interest under Article 302 subject
to Article 303.
Article 302 empowers parliament to impose restrictions on the freedom of trade, commerce and intercourse
between one state and another, or within any part of the territory of India, in the public interest. The
reference of Article 302 to restriction on the freedom of trade within any part of the territory of India as
distinct from freedom of trade between one state and another clearly indicates that the freedom granted by
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Article 301 covers both inter state and intra state trade and commerce, as Article 302 is in the very nature
of an exception to Article 301.
The Essential Commodities Act has been held to impose reasonable restrictions on the right to carry on
trade and commerce as guaranteed by Articles 19(1)(g) and 301.
In Prag Ice & Oil Mills v. India(AIR-1978), the supreme court said that Article 302 does not speak of
'reasonable restrictions' yet the court further held that 'it is evident that restrictions contemplated by it must
bear a reasonable nexus with the need to serve the public interest.'
b. The state legislatures are given power to regulate trade and commerce under Article 304 subject to
Article 303. Article 304 , which consists of two clauses, empowers the states to make laws to regulate and
restrict the freedom of trade and commerce to some extent. According to 304 (a), a state legislature may by
law impose on goods imported from other states any tax to which similar goods manufactured or produced
within that state are subject, so, however, as not to discriminate between goods so imported and goods so
manufactured or produced.
* Article 304(a) thus says that state legislature may impose taxes but one condition is there, it
Basically the concept of equality in Article 304 (a) and 14 are, somehow, same. In Video Electronics Pvt
Ltd. v. State of Punjab, the supreme court held that Article 304(a) enjoins the state not to discriminate with
respect to imposition of tax on imported goods and locally made goods.
In Shri Mahavir Oil Mills Ltd. v. State of J&K(AIR 1996), the supreme court further said that this clause
bars states from creating tax barriers/fiscal barriers and/or insulating themselves by creating tariff walls.
* Article 304(b) authorizes a state legislature to impose by law such reasonable restrictions on the freedom
of trade, commerce and intercourse with or within that state as may be required in public interest, provided
that the bill or amendment for this purpose has received the previous sanction of the president before it is
introduced or moved in the state legislature.
There is also a provision in this Article and that is "provided no bill or amendment for the purposes of
clause (b) shall be introduced or moved in the legislature of a state without the previous sanction of the
president."
In Atiabari case, a state law imposing a tax on movement of goods in interstate commerce was held invalid
because of the lack of presidential assent.
In Saghir Ahmed v. State of U.P (AIR- 1954), it was held that subsequent sanction is of no effect.
But in other cases it was held that proviso has to be read in a harmonious manner with Article 255, which
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says that if the Act receives the assent of the president, the non-compliance of the previous sanction to the
introduction of the bill is cured.
c. Article 305 protects existing laws from the operation of Articles 301 and 303. it also saves
nationalization laws from the operation of Article 301.
Restrictions and regulations The contrast between "freedom under Article 301 and "restrictions " under
Article 302 and 304 clearly appears: "that which in reality facilitates trade and commerce is not a
restriction and that which in reality hampers or burdens trade and commerce is a restriction." it is the
reality or the substance that has to be looked into and determined. If Article 301 is interpreted to cover all
regulation, it will mean that the state legislature cannot control trade, commerce and intercourse even if it
is to facilitate free movement. It must yet proceed to make a law under Article 304(b) and no such bill can
be introduced or moved in the legislature of a state without the previous sanction of the president.
Necessity of reasonable restrictions Now a question arises as to the necessity of such reasonable
restrictions. To answer this, the constitutional framers were conscious of free trade, commerce and
intercourse throughout the territory of India is necessary. At the same time, such freedom may require be
curtailing or curbing in public interest and the parliament and the state legislatures have been given powers
under Articles 302, 303, 304.
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 volatile 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.
-----------------------------------------
Doctrine of Pleasure
Introduction-
Doctrine of Pleasure under the Indian Constitution is also based on the same policy considerations as it
existed under the common law in England. Though doctrine of pleasure is accepted in India as it has
developed in England, it has not been completely accepted in India.
Doctrine of Pleasure
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This Doctrine of Pleasure is embodied in India in Article 310(1).
Article310- 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 defense service
or of a civil service of the Union or of an all India service or holds any post connected with defense 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 of the State. This is the general rule which operates except as expressly provided by the
Constitution. This means that the Doctrine is subject to constitutional limitations. Therefore, when there is
a specific provision in the Constitution giving to servant tenure different from that provided in Article 310,
then that servant would be excluded from the operation of the pleasure doctrine.
Exceptions
The following are expressly excluded by the Constitution from the rule of Pleasure. They are:
Supreme Court Judges Article 124,
Auditor General (Article 148)
High Court Judges (Article 217, 218)
A member of Public Service Commission (Article 317)
The Chief Election Commissioner.
Though doctrine of pleasure is accepted in India as it has developed in England, it has not been completely
accepted in India. It is subject to the provisions of Article 311 which provides for procedural safeguards
for civil servants.
Article 311 of the Constitution of India states that:
(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a
State or holds a civil post under the Union or a State shall be dismissed or removed by an authority
subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in
which he has been informed of the charges against him and given a reasonable opportunity of being heard
in respect of those charges: Provided that where, it is proposed after such inquiry, to impose upon him any
such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it
shall not be necessary to give such person any opportunity of making representation on the penalty
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proposed: Provided further that this clause shall not apply
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to
his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that
for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such
inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security
of the State it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to
hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss
or remove such person or to reduce him in rank shall be final."
Therefore, services of any civil servants cannot be terminated at pleasure unless the mandatory provisions
of Article 311 have been observed. This doctrine of pleasure is further restricted by the general law of the
land which empowers any civil servant to file suit in a court of law for enforcing any condition of his
service and for claiming arrears of pay. The power to dismiss at pleasure any civil servant is not a personal
right of the President or the Governor, as the case may be. It is an executive power which is to be exercised
at the advice of Council of Ministers. Doctrine of Pleasure as contained in Article 310, being a
constitutional provision cannot be abrogated by any legislative or executive law; therefore Article 309 is to
be read subject to Article 310.
Restrictions On The Doctrine Of Pleasure:
Under Indian Constitution several restrictions has been placed on Doctrine of Pleasure. They are as
follows:
1. The service contract entered between the civil servant and government may be enforced.
2. The fundamental rights guaranteed under the constitution are restrictions on the pleasure doctrine and
therefore this doctrine cannot be resorted too freely and unfairly, Articles 14, 15 and 16 of the Constitution
imposed limitations on free exercise of Pleasure Doctrine.
3. Further the doctrine of pleasure is subject to many more limitations and a number of posts have been kept
outside the scope of pleasure doctrine. Under the constitution the tenure of the Judges of the High Courts
and Supreme court, of the comptroller and Auditor-General of India, of the Chief Election Commissioner
and the Chairman and Members of Public service commission is not at the pleasure of the Government.
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Thus, the general principle relating to civil services has been laid down under Article 310 of the
Constitution to the effect that government servants hold office during the pleasure of the government and
Article 311 imposes restrictions on the privilege of dismissal at the pleasure in the form of safeguards.
Persons Entitled To Safeguard:
Constitutional safeguards provided under Article 311 are not available to all the government servants. The
text of the Article refers to members of civil services of the Union or all- India service of a State or hold a
civil post under the Union or a State. The constitution bench of the Supreme Court in S.L. Agarwal (Dr.) v.
General Manager(AIR 1969), Hindustan Steel Limited, generally considered as to who are the persons
entitled to the protection of Article 311.
The Court identified the following persons:
(1) Persons who are members of:
A civil service of the union; or
An All India Service; or
A civil service of a State; or
(2) Hold a civil post under the Union or State. Difficulties have always arisen in relation to the meaning and
scope of Civil Post. Though this expression has been interpreted in many ways there is no debate that
Article 311(1) deals with persons employed in the civil side of administration in contradistinction to
defence. Supreme Court in State of Assam v. Kanak Chandra Dutta (AIR-1967) laid down that civil post
in Clause (1) means a post not connected with the defence services and outside the regular civil services.
Further, in Parshottam Lal Dhingra v. Union of India, (AIR-1958) the Supreme Court of India has held
that under Article 311 the safeguards are applicable to both permanent and temporary servants.
Constitutional Safeguards Available To The Civil Servants:
There are two constitutional safeguards provided under Article 311 of the Indian Constitution. They are as
follows:
1. Clause (1) of Article 311 addresses itself to the authority who can impose any of the punishments of
dismissal or removal. According to this, no order of dismissal or removal can be made by an authority
subordinate to the appointing authority. But if the removing authority is of the same or co-ordinate rank or
grade as the appointing authority then, dismissal or removal by such authority is valid.
2. Clause (2) of Article 311 provides the procedural essentials to be followed before dismissing, removing
or reducing in rank. Article 311(2) mandates the compliance of the Principles of Natural Justice. A civil
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servant cannot be punished without: (a) holding an enquiry; and (b) informing the civil servant about the
charges against him; and (c) giving him a reasonable opportunity of being heard in respect of those
charges. The enquiry contemplated by Article 311(2) is generally known as departmental enquiry and the
Constitutional requirements for a proper enquiry within the meaning of Article 311(2) are two-fold:
(a) The civil servant must be informed of the charges against him; and
The civil servant against whom a accusation of misconduct is made must be Formally informed i.e to say
those acts or omissions of the public servant which are termed as Misconduct under the Service Rules
usually referred to as Conduct rules. But, acts or conduct not covered by such may still amount to
misconduct. It is fundamental and essence of the concepts of fair play and justice that a person should
know why he is being charged. (b) He must be afforded a reasonable opportunity of being heard in
respect of those charges. Neither the General clauses Act nor the Constitution defines reasonable
opportunity. Reasonable opportunity here too refers to the rules according to Principles of Natural Justice.
Broadly, it implies an opportunity to deny the guilt alleged in order to establish innocence, to defend by
examining himself and his witnesses.
Exceptions To The Safeguards Provided Under Article 311:
The provision to Article 311 (2) provides for certain circumstances in which the procedure envisaged in
the substantive part of the clause need not be followed. These are as follows:
a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to
his connection on criminal charge; orb) Where the authority empowered to dismiss or remove a person
or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing, it is
not reasonably practicable to hold such inquiry; or c) Where the president or the governor as the case may
be, is satisfied that in the interest of the security of the state it is not expedient to hold such inquiry.
(a) Conviction on Criminal Charge: The Supreme Court has emphasised under Art. 311(2)(a), the
disciplinary authority is to regard the conviction of the concerned civil servant as sufficient proof of
misconduct on his part. The authority is to decide whether conviction demands the imposition of any
penalty and, if so, what penalty. For this purpose, the authority has to take into consideration the
judgement of the criminal court, the entire conduct of the civil servant, the gravity of the offense, the
impact of the offence on the administration, whether the offence was of a technical or trivial nature, and
extenuating circumstances if any. This the Disciplinary authority has to do ex-parte and without giving a
hearing to the concerned civil servant. The power has to be exercised by the authority fairly, justly and
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reasonably. Hearing need not be given while imposing the penalty after conviction on a criminal charge,
but the right to impose a penalty the duty to act justly. For instance, a government servant convicted for
parking in the no-parking area cannot be dismissed.
(b) Impracticability:
It is important to know that this clause applies only when the conduct of government servant is such as he
deserves the punishment of dismissal, removal or reduction in rank. Before denying government servant
his constitutional right to an inquiry, the paramount consideration is whether the conduct of the
government is such as justifies the penalty of dismissal, removal or reduction in rank.
In Tulsi ram Patel case (AIR1985) the Supreme court explaining the scope of the clause has said
whether it was practicable to hold the inquiry or not must be judged in the context of whether it was
reasonably practicable to do so. It is not a total or absolute impracticability which is required by cl. (b).
What is requisite is that holding of the inquiry is not practicable in the opinion of a reasonable man taking
a reasonable view of the prevailing situation. The Supreme Court further held that the reasonable
practicability of holding an inquiry is a matter of assessment to be made by the disciplinary as he is the
best judge of the situation.
(c) Reasons of Security: Under (c) the satisfaction has to be that of the President or the Governor as the
case may be. The satisfaction must be with respect to the expediency or inexpediency of holding an inquiry
in the interest of the security of the State. Security of State being of paramount importance all other
interests are subordinate to it, Security of State may comprise a situation of disobedience and
insubordination on the part of members of the police force. In Tulsi ram Patel case the Supreme Court has
clarified that the question is not whether the security of the State has been affected or not, for the
expression cl(c) is in the interest of the security of State. The interest of security of State may be
affected by actual act, or even the likelihood of such acts taking place. So the Court has observed What is
required under cl.(c) is not the satisfaction of the President or the Governor, that interest of the security of
the State is or will be affected but his satisfaction in the interest of security of State, it is not expedient to
hold an inquiry as contemplated by Article 311(2). The government is under obligation to disclose to the
court the nature of the activities of the employee on the basis of which the satisfaction of the President or
the Governor was arrived at for the purpose of passing an order under Article 311(2)(c). In the absence of
any indication about the activities, it would not be possible for the Court to determine whether the
satisfaction was arrived at on the basis of relevant considerations. The government is under obligation to
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place relevant material on the basis of which the satisfaction was arrived at subject to a claim of privilege
under Sections 123 and 124 of the Evidence Act,
Judicial Perspective on Doctrine of Pleasure In India
The Judicial perspective on Doctrine of Pleasure can be discussed in the following cases:
As we all know that rule emanating from the pleasure doctrine is that no servant of the Crown can
maintain an action against the Crown for any arrears of salary. The assumption underlying this rule is that
the only claim of the civil servant is on the bounty of the Crown and not for a contractual debt.
The Supreme Court of India in State of Bihar v. Abdul Majid(AIR-1954) refused to follow this rule of
the Doctrine of pleasure. In this case sub-inspector of police was dismissed from service on the ground of
cowardice, was later reinstated in service. But the government contested his claim for arrears of salary for
the period of his dismissal. The Supreme Court in this case upheld his claim arrears of salary on the ground
of contract or quantum muruit i.e for the value of the service rendered. Similarly the Supreme Court the
reiterated the above ruling in Om Prakash v. State of Uttar Pradesh(AIR-2006) where it was held that
when dismissal of a civil servant was found to be unlawful, he was entitled to get his salary from the date
of dismissal to the date when his dismissal was declared unlawful.
Further in State of Maharashtra v. Joshi(AIR-1980), it was held that a claim of arrears of salary was held
to be based on contract. Further the judiciary has also acted as checks and balances on the arbitrary
exercise of the power of conferred by the doctrine on the president and the Governor. The Supreme Court
in Jaswant Singh v. State of Punjab (AIR1958)held that in spite of finality of Article 311(3) the finality
can certainly be tested in the court of law and interfered with if the action is found to be arbitrary or
malafide or motivated by extraneous considerations or merely a ruse to dispense with the inquiry.
In Union of India v. Balbir Singh,(AIR-1998) the Supreme Court held that the Court can examine the
circumstances on which the satisfaction of the president or Governor. If the Court finds that the
circumstances have no bearing whatsoever on the security of State, the Court can hold that satisfaction of
the president or the Governor which is required for passing such an order has been vitiated by wholly
extraneous or irrelevant considerations.
Conclusion:
Thus it can be said that the Constitution makers then at that time had known about the discrepancies like
corruption to creep into the civil services, so in order not to grant immunity from summary dismissal to
dishonest or corrupt government servants so that they continue in service for months together at the
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public expense and to Public detriment. Also at the same time the judiciary with its limited judicial
review and departmental appeal has ensured that the power to dismiss has not been misused by the
authority. With the lot many cases coming into light in relation to corruption among the government
officials and the linking of various government officials with anti-social elements the Article 310 and 311
of the Indian Constitution envisaged in the Part XIV act as a check and does not allow the government
officials to make mockery of Law.
-------------------------------
Emergency Provisions
Introduction
Part XVIII of the Constitution of India contains Articles 352-360 which deals with 'Emergency Provisions'.
There are three kinds of provisions according to the Constitution.
National Emergency
State Emergency
Financial Emergency
National Emergency
Article 352 deals with the National Emergency. An emergency arising from the threat to the security of the
country is called National Emergency. A national emergency can be proclaimed by the President of India
when he is satisfied that a grave security threat exists to the national. The threat can either be by war,
external aggression or armed rebellion.
The expression "Proclamation of Emergency" or "Emergency" deals only with Clause (1) of Article 352 of
the Constitution of India and it does not include articles 356 and 360.
In the case of Minerva Mills vs Union of India AIR 1980, SC 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.
Prior to 44th amendment, duration of emergency was two months initially and then after approval by the
houses, it would continue indefinitely until ended by another proclamation. However after 44th
amendment, the period is reduced to 1 month and then 6 months after approval.
Grounds for Proclamation of Emergency
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Before the 44th amendment to the Constitution of India, the following are the grounds under which the
President can proclaim emergency.
War
External Aggression
Internal Disturbance
However, the term Internal Disturbance is too vague and might also include political agitations in the
country. Hence, the 44th amendment replaced this with armed rebellion. After the 44th amendment the
following are the grounds under with a National Emergency can be proclaimed by the President.
War
External Aggression
Armed Rebellion.
War
When a violent struggle between two countries with the use of armed forces. It also includes when a
country has made a formal declaration of a war against India.
External Aggression
External aggression has wide meanings. It covers unilateral attacks with force by one state against another
State without a formal declaration of war. As long as the other State has not answered with similar hostile
attacks, it can be constituted an external aggression.
Publication of Proclamation of Emergency
There is no prescribed format in which a Proclamation of Emergency needs to be published. The
publication can be made in any manner deemed fit in order to be known to public.
Effects of Proclamation of emergency The following are the effects arising out of proclamation of
emergency in art 352. Art 353
1. executive power of the Union shall extend to giving directions to any state.
2. parliament will get power to make laws on subjects that are not in Union list.
3. if the emergency is declared only a part of the count, the powers in 1 and 2 shall extend to any other part if
that is also threatened.
Art 354 Provisions of art 268 to 279, which are related to taxation, can be subjected to exceptions as deem
fit by the president. Every law such made shall be laid before each house of the parliament.
Art 355 says that it is the duty of the Union to protect States against external aggression.
Art 358 While proclamation of emergency declaring that security of India or any part of the territory of
76 | P a g e
India is threatened due to war or external aggression, is in operation, the state shall not be limited by art 19.
In other words, govt may make laws that transgress upon the freedoms given under art 19 during such
emergency. However, such a law will cease to have effect as soon as emergency ends. Further, every such
law or very executive action that transgresses upon freedoms granted by art 19 must recite that it is in
relation to the emergency otherwise, it cannot be immune from art 19.
It also says that any acts done or omitted to be done under this provision cannot be challenged in the courts
after the end of emergency. In the case of M M Pathak vs Union of India AIR 1978, SC held that the
rights rights granted by 14 to 19 are not suspended during emergency but only their operation is
suspended. This means that as soon as emergency is over, rights transgressed by a law will revive and can
be enforced. In this case, a settlement that was reached before emergency between LIC and its employees
was rendered ineffective by a law during emergency. After emergency was over, SC held that the previous
settlement will revive. This is because the emergency law only suspended the operation of the existing
laws. It cannot completely wash away the liabilities that preexisted the emergency.
Art 359 This article provides additional power to the president while proclamation of emergency is in
operation, using which the president can, by an order, declare that the right to move any court for the
enforcement of rights conferred by part III except art 20 and 21, shall be suspended for the period the
proclamation is in operation of a shorter period as mentioned in the order. Further, every such law or every
executive action recite that it is in relation to the emergency.
Art 83(2) While the proclamation is in operation, the president may extend the normal life of the Lok
Sabha by one year each time up to a period not exceeding beyond 6 months after proclamation ceases to
expire.
Provisions in case of failure of constitutional machinery in States Art 356 says that if, upon the report
of the Governor of a state, the president is satisfied that the govt. of the state is cannot function according
to the provisions of the constitution, he may, by proclamation, assume to himself all or any of the functions
of the govt, or all or any of the powers vested in the governor, or anybody or any authority in the state
except the legislature of the state. The power of the legislature of the state shall be exercised by the
authority of the parliament.
Under this article, president can also make such incidental and consequential provisions which are
necessary to give effect to the objectives of the proclamation. This includes suspension of any provision of
this constitution relating to any body or authority in the state.
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However, this article does not authorize the president to assume the powers vested in the High Courts.
Art 357 provides that in the case of proclamation under art 356
parliament can confer upon the president the power of legislature of the state to make laws or the power to
delegate the power to make laws to anybody else.
the parliament or the president can confer power or impose duties on the Union or Union officers or Union
authorities.
president can authorize the expenditure from the consolidated fund of the stat pending sanction of such
expenditure by the parliament.
.Financial Emergency
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 center.
This article has never been invoked.
Changes made by 44th Amendment 44th amendment substantially altered the emergency provisions of
the constitution to ensure that it is not abused by the executive as done by Indira Gandhi in 1975. It also
restored certain changes that were done by 42nd amendment. The following are important points of this
amendments-
"Internal disturbance" was replaced by "armed rebellion" under art 352.
The decision of proclamation of emergency must be communicated by the Cabinet in writing.
Proclamation of emergency must be by the houses within one month.
To continue emergency, it must be re approved by the houses every six month.
Emergency can be revoked by passing resolution to that effect by a simple majority of the houses present
and voting. 1/10 of the members of a house can move such a resolution.
Art 358 - Under this article art 19 will be suspended only upon war or external aggression and not upon
armed rebellion. Further, every such law that transgresses art 19 must recite that it is connected to art 358.
All other laws can still be challenged if they violate art 19.
Art 359, under this article, suspension of the right to move courts for violation of part III will not include
art 20 and 21.
Reversed back the term of Lok Sabha from 6 to 5 years.
-------------------------------------------------
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Constitutional Amendment
Introduction
The constitution of India is not rigid and not flexible, but it is a combination of these both. Article 368 in
part XX gives powers to parliament to amend the constitution and its procedures. Parliament can amend it
by adding article, or delete any provision, but however parliament cannot amend those provisions which
change the basic structure of parliament (The supreme court of India has ruled this in Kesavananda
Bharti case in 1973). The American constitution is very rigid & that of Britain very flexible. Our
constitution is the synthesis of these two constitutions.
Types of Amendment Article 368 gives two types of amendments first is by special majority & other is by
special majority with ratification of half of states with simple majority. Some articles of constitution can be
amended by simple majority that is majority of members of each house present and voting but these type of
amendments are not considered to be amendments under Article 368.
The amendments can be done by three ways:
Amendments by simple majority of parliament (i.e. majority of the people present and voting)
Amendments by special majority of parliament
Amendments by special majority of the parliament and the ratification of half of the state legislatures
Amendment by Simple majority Special majority means amendment of the constitution under article 368
involving 1) majority of the total membership of the house (i.e. more than 50% of the total members of the
house) plus ii)majority of two-third of the members of each house present and voting (i.e. the people
present at the time of voting in the house should amount to two-third).
Following provisions can be amended by special majority;
Fundamental rights
Directive principles of state policy
All the provisions which are not covered by first and third categories.
Amendment by special majority and with the consent of States
The important thing to understand under this type of amendment is that it comes under the scope of article
368.
It is needed only when there is a question about amendment of the federal structure of the constitution.
Federalism is the political structure where there is proper division of the powers between the centre and the
state.
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Hence, all the provisions in the constitution which involves federal character have to be amended by this
type of amendment.
For this case, both the houses of Parliament should pass the said bill by special majority. After that half of
the number of states should pass the same bill with simple majority in their respective state legislatures.
No definite time limit has been set up for the state legislatures to pass the said bill under this provision i.e.
it has been left at the discretion of the states.
Following provisions can be amended by this way:
Distribution of legislative powers between the center and states.
Power of parliament to amend the constitution and its procedure.
Election of the president and its manner.
Any of the lists in the seventh schedule.
Extent of the executive power of the union and the states.
Representation of states in parliament.
Amendments by special majority
The provisions that can be amended by simple majority is outside the scope of Article 368. These
provisions that can be amendedby simple majority are as follows:
Procedure for amendment All the amendment procedures of the constitution are present in article 368
is given below:
The move for amendment can be initiated in either house of parliament (but not in state legislature. Can be
introduced by any minister/private member & does not need permission of President for such bill)
Each house should pass the bill with special majority.
The amendment bill must pass be passed separately, (if the hoses do not agree on bill there is no provision
for joint setting of the houses).
If the amendment bill is regarding the federal character of the constitution then after the passage of the bill
in both the houses of Parliament it is presented to the state. Otherwise if it is not regarding federal
character it directly goes to the President for his assent.
(the bill involving federal character)After the passage of the bill from the parliament and ratified by the
state legislature then bill is presented to the president for his assent.
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President can neither return the bill nor withhold the bill. He needs to give assent to the said bill. (It is
compulsory for the President). After the assent from the President, that bill becomes a constitutional
amendment act.
Amendment and the Fundamental Rights
1. Shankari Prasad Case(1951)
Case questioning that whether fundamental rights can be amended under Article 368 & also questioned
the constitutional validity of First amendment act that curtailed the right to property.
SC said that Parliament can amend the Fundamental rights under 368. Also, laws under Article 13 are
ordinary laws & hence can be taken away by Parliament by amendment.
2. Golak Nath Case(1967)
Case questioned the constitutional validity of putting some state laws under Schedule 9 of the constitution
(by 7th Amendment Act)
Any law put under Schedule 9 is not available for Judicial Review
SC said that its decision in Shankari Prasad Case was wrong & Fundamental rights have an important
position in the constitution & hence cant be amended under article 368.
Constitutional amendment is also a law under Article 13 & hence cant take away the fundamental rights.
Parliament after this judgment enacted the 24th amendment act, 1971 which amended the Article 13 &
Article 368. The new law stated that Parliament can take away any Fundamental right by use of Article
368 & such a constitutional amendment act will not be considered as a law under article 13.
3. Kesavananda Bharati Case(1973)
SC sated that 24th Constitutional amendment act is valid & Parliament can take away Fundamental rights.
SC at this time came out with doctrine of basic structure. It states that Parliament cannot amend the
constitution under Article 268 that relates to the change of basic structure of the constitution i.e. Parliament
cant take away those fundamental rights that are a part of basic structure of the constitution.
Parliament then enacted 42nd Constitutional amendment act, 1976. It states that there is no limit to the
power conferred by Article 368 to the Parliament & any change brought about by article 368 cannot be
questioned in the court of law.
4. Minerva Mills Case(1980)
The provisions that were laid down by the 42nd Constitutional Amendment act, 1976 were declared
invalid by the Supreme Court in this 1980 Supreme Court case.
5. Waman Rao Case(1981)
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Supreme Court stated that any amendment act cant change the basic structure of the constitution & these
would apply to the amendments after April 24,1973.
So, as of now, Parliament can do any type of amendment & even amend the Fundamental rights but which
are not changing the basic structure of the constitution.
Some negative aspects of the amendment procedure

The provisions under amendment are very vague & hence require a lot of understanding.
No difference between the ordinary bill & the constitutional amendment bill except for special majority.
No special body for such purpose is present.
States in India have no right to start the constitutional amendment procedure.
No way to solve any deadlock between the two houses of the Parliament. There is no provision for joint
sitting of the house in case of deadlock over amendment bill.
Most part of the constitution can be amendment by way of special majority & simple majority alone. Only
in few cases, states ratification is required.
No time limit given to states for passing the amendment bill involving federal character.
_____________________________
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